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Labor Law Quick Notes by MV Matillano 1

Compulsory Voluntary SUBMISSION


Arbitration CA Arbitration VA AGREEMENT
Nature A system Referral to a to execute the
whereby the dispute by the final decision
parties to a parties is or award.
dispute are made,
compelled by pursuant to a
GREIVANCE LABOR MANAGEMT
the VA CLAUSE in
MACHINERY (GM) COUNCIL (LMC)
GOVERNMENT their CBA, to
to forego with an impartial Resolves disputes in Resolves disputes not
the right to 3rd person for the implementation within the provisions of
strike and are a final and and interpretation of the CBA.
compelled to binding the meaning of the
accept the resolution. provisions of the CBA
resolution of and of the company
their dispute personnel policies.
through
ARBITRATION Key: 1. CBA 2.
BY A 3RD Personnel Policies
PARTY.
EFFECTIVITY AND RETROACTIVITY date of economic
 Key: and non-economic provisions of the CBA.
MAY
KABIT 1. If the CBA is the very 1st for the bargaining
DITO unit the parties have to decide the
(3RD effectivity
PARTY) 2. Those made within 6 months after the date
Disinterested of the expiry of the CBA are subject to
3rd party AUTOMATIC RETROACTION to the day
appointed by immediately following the date of expiry.
the 3. Those not made within 6 months the
GOVERNMENT. parties may agree to the date of
Enforcement Upon motion retroaction.
of any NOTE: Apply this rules only if THERE IS AN EXISTING
interested AGREEMENT. Otherwise, follow the date agreed
party, the VA upon. Also, only if the agreement was
or panel of VOLUNTARILY agreed upon by the parties NOT
Vas or the LA when the provisions are imposed by the SLE.
in the region
where the RULE: Re-negotation of all the provisions OTHER
movant THAN the REPRESENTATION ASPECT of the CBA
resides, in should be made AFTER THR 3 years from
case of the effectivity. Considering that 5 years may be too
absence or long during which the ECONOMIC SITUATIONS OF
incapacity of HE PARTIES MAY HAVE ALREADY CHANGED.
the VA or Q: Effect of amendment or extension of term of the
panel of Vas, CBA on the exclusive representation status of the
for any reason CB agent and the right of another union to ask for a
MAY ISSUE A CE?
WRIT OF
EXECUTION A: Art 253-A expressly provides of the LC, the
requiring exclusive bargaining status cannot go beyond the 5
either the years and representation status is a legal matter
Sheriff of the not for the work place parties to agree upon. The
NLRC or bargaining union’s exclusive bargaining status may
regular courts be challenged within 60 days prior to the expiration
or any public of the 1st 5 year life span of the CBA.
official whom
 Parties are duty-bound to maintain the
the parties
status quo and to continue in full force and
may designate
effect the term and conditions of the
in the
existing CBA until a new agreement is
Labor Law Quick Notes by MV Matillano 2

reached by the parties. Furthermore, Art. Amounts to ULP when the ER attempts to
253-A provides for an automatic renewal negotiate w/ individual workers rather than w/ the
clause of a CBA. Although a CBA has Certified Bargaining Agent. Hence, if the
expired, it continues to have a legal effect negotiation is initiated by the ER directed to an
as between the parties until a new CBA has individual EE such amounts to ULP. If done in the
been entered into. reverse EE ER such is allowed, because there is
no legal prohibition.
CLOSED SHOP UNION SHOP
ER cannot hire and EE ER can hire even those Blue Sky Bargaining BSB
unless they are a who are not members
member of the union. of the union but it Making an exaggerated or unreasonable proposals.
requires that after a Which the ER has no capacity to give. Determined
*hindi ka tatanggapin certain period they by the evidence presented by the union w/ respect
sa trabaho hanggang must become a to its economic demands. If they require
hindi ka kaanib ng member of the union. exaggerated/unreasonable economic demands
samahan ng mga they are guilty of BSB. Logic will dictates that the
manggagawa. *Maari kang tanggapin union must substantiate their economic demands
sa trabaho nguit dapat with proof evincing of justifying what they are
kang sumali sa asking for without being unreasonable.
samahan pagkatapos
ng palugit na binigay Surface Bargaining SB
sayo.
Is the act of going through the motions of
bargaining WITHOUT THE LEGAL INTENT to reach
ULP IN COLLECTIVE BAGRAINING an agreement. SB is a question of intent of the
party concerned and can only be inferred from the
totality pf the challenged party’s conduct both at
and away the bargaining table. CONSIDER THE
Forms of unfair labor practice in bargaining
TOTALITY OF HIS ACTIONS! Because, intent is
1. Failure to meet and convene something that is confined within the realm of a
2. Evading the mandatory subjects of person’s mind we can only rely on the totality of his
bargaining actions.
3. Bad faith in bargaining, including failure to
execute CBA if requested Featherbedding FB
4. Gross violation of CBA (dapat GROSS ha!!!
This act is committed by a union and it is an act of
Otherwise, not treated as ULP but a
EXACTION. Causing an ER to pay, deliver money or
grievance under CBA)
other things of value FOR SERVICES W/C ARE NOT
5. Surface Bargaining
PERFORMED.
6. Blue Sky bargaining
e.g.: When a union demands that the ER maintain
Bargaining in Bad Faith personnel IN EXCESS of the ER’s needs. This is a
form of EXTORTION committed by the union
Boulwareism- A violation of good faith in
against the ER.
bargaining, it in bargaining. It includes failure to
execute CBA. (Bad Faith Bargaining). It occurs when NB: It is not FB if the wok is performed no matter
ER directly bargains with the EES disregarding the how unnecessary or useless it may be.
union; the aim was to deal with the labor union
through the EES. The ER submits its proposal and Sweetheart Contract SHC
adopts a take-it-or-leave-it stand.
When a LO asks for or accepts negotiations or
Refusal to Bargain attorney’s fees from ERS as part of the settlement
of any issue in CB or any other dispute.
Occurs when ER fails to meet and convene with the
majority of his EES. The character of a SHC is it is a CBA that does not
SUBSTANTIALLY improve the EES wages and
Failure of the ER to submit counter-proposal to the benefits and whose benefits are far below than
demands of the BU does, by itself, constitute those provided by law. INCOMPLETE OR
refusal to bargain. (102 Phil. 373) Refusal to submit INADEQUATE CBA.
an ANSWER or REPLY to the written bargaining
proposals of the certified bargaining union, If what was violated is the maintenance of
amounts to ULP. membership clause that will not amount to the
commission of ULP.
Individual Bargaining
Ratio: Such is a political or representational
provision.
Labor Law Quick Notes by MV Matillano 3

NB: For violation of CBA to be considered as an


ULP, the violation must be GROSS and the
provisions violated must be the economic
provisions. The violation must be GROSS and 2. Yellow dog condition/ contract
FLAGRANT.
A promise exacted from workers that as a
ULP of ERS condition of their employment they are not belong
to or attempt to foster a union during their period
ULP committed by ERS
of employment. Once employed, he promises that
Only the officers and agents of corporations, he will never join a union.
associations or partnerships who have actually
The condition for employment is ANG HINDI
participated in or authorized or ratified ULPs are
PAGSALI SA ISANG UNION OR BUMUO KUNG
criminally liable.
WALANG PA.
1. Interference, restraint, coercion
2. Yellow dog condition/ contract 3. Contracting out services COS
3. Contracting out services
The effect of COS is that of # 1. To contract out
4. Company unionism or captive unionism
services or functions being performed by union
5. Discrimination for or against union
members when such act will interfere with, restrain
membership
or coerce EES in the exercise of their rights to self-
6. Discrimination because of testimony
organization.
7. Violation of duty to bargain
8. Payment by the ER of negotiation fees GR: COS by the ER is not ULP per se.
9. Gross violation of CBA
XPNs: The following are prohibited for being
contrary to public policy:

1. ULP: Interference A. Contracting out of jobs when not done in GF


and not justified by the exigencies or
Pag pigil ng ER sa karapatan ng mga manggagawa pangangailangan of the business such as:
na bumuo ng union. 1. Contracting out jobs when the same results
Test: ER is engaged in a conduct w/c may be in the termination or reduction of regular
reasonably interpreted, to interfere w/ the EES EES and the reduction of splitting of the BU.
right to self-organization. 2. Contracting out of work with a CABO.
3. Taking undue advantage of the economic
Direct evidence not needed. As long as there exist situation of lack of bargaining strength of he
an anti-union conduct on the part of the ER w/c contractor’s EES, or undermining their
adversely affects the right of the EES to self- security of tenure (SOT) or basic rights, or
organization and CB. circumventing the provisions of regular
employment, in any of the following
Interrogating the EES
instance:
An ER is not denied the right to interrogate his EES I. Requiring them to preform functions
as their union affiliation, provided: w/c are currently being performed
by the regular EES of the principal;
a. The same is for a legitimate purpose; and
b. Assurance is given by the ER that no II. Requiring them to sign, as a
reprisals would be taken against unionists. precondition to employment or
In order that interrogation would not be deemed continued employment, an ante-
coercive: dated resignation letter; a blank
payroll; waiver of labor standards;
a. The ER must communicate to the EE the quitclaim; releasing the principal,
purpose of questioning; contractor from any liability as to
b. Assure him that no reprisal would take payment of future claims.
place; 4. Contracting out of a job, work or service
c. Obtain EE participation voluntarily; (JWS) through an in-house agency.
d. Must be free from ER hostility to union 5. Contracting out of a JWS that is NECESSARY
organization, and; and DESIRABLE or DIRECTLY RELATED to the
e. Must not be coercive in nature. business operation of the principal by
REASON OF A STRIKE OR LOCKOUT whether
Note: Interrogating an EE is NOT PER SE ULP, but
actual or imminent.
circumstances may make it as such.
6. Contracting out of a JWS being performed
by union members when such will interfere
w/ restrain or coerce EES in the exercise of
Labor Law Quick Notes by MV Matillano 4

their rights to self-organization (SO) as Ang totoong may hawak ng alas sa union ay
provided in Art. 248c of the LC, as amended. ang ER dahil maaring siya ang
7. Repeated hiring of EES under an namumuhanan or nag finance sa
employment contract of short duration or pagpapatakbo nito.
under a Service Agreement of short
Forms of Company Unionism
duration w/ the same or diff. contractors,
w/c CIRCUMVENTS the LC provisions on 1. Initiation of the company union idea by:
SOT. A. Outright formation by ER or his
8. Requiring EEs under a subcontracting REPRESENTATIVES
arrangement to sign a contract fixing the B. EES formation on outright demand or
period of employment to a term shorter influence by ER and
than the term of the Service Agreement, C. Managerially motivated formation by
unless the contract is divisible into phases EES
for w/c substantially different skills are 2. Financial Support to the Union by:
required and tis is made known to the EES A. ER defrays union expenses
at the time of engagement. B. Pays attorney’s fees to the attorney who
9. Refusal to provide a copy of the Service drafted the Constitution or by-laws of
Agreement and the employment contracts the union.
between the contractor and the EES 3. ER encouragement assistance- Immediately
deployed to work in the BU of the granting of exclusive recognition as
principal’s certified bargaining agent to the bargaining agent WITHOUT DETERMING
sole and exclusive bargaining agent. SEBA WHETEHR THE UNION REPRESENTS THE
10. Engaging or maintaining by the principal of MAJORITY OF THE EMPLOYEE IN THE
subcontracted EES in excess of those BARGAINING UNIT CONCERNED
provided for the applicable CA or as set by 4. Supervisory assistance- soliciting
the Industry Tripartite Council. membership, permitting union activities
during work time or coercing EES to joining
Note: it shall be mandatory for all persons or
the union by threats of dismissal or
entities, including cooperative, acting as
demotion.
contractors, to register w/ the Regional Office of
DOLE where it principally operates. Otherwise, will Raison d’ etre for the prohibition: The union
give rise to the presumption that the contractor is officers will owe loyalty or be beholden to the ER
engaged In LOC. (D.O. 18-A, Sec. 14) which will result to the neglect of their duty to
represent the interest of the EES whom the officers
LOOK AT THE EFFECT OF CONSEQUENCE OF
truly represent. A conflict of interest will arise.
CONTRACTING OUT SERVICES. IF SUCH WILL
INTERFERE W/, RESTRAIN OR COERCE EES IN THE - Paano ka magiging patas kung tatanaw ka
EXERCISE OF THEIR RIGHT TO SELF-ORGANIZATION. ng utang na loob sa boss mo dahil siya ang
OTHERWISE, NOTHING IS WRONG WITH LOC nag fund ng union niya.
BECAUE AS A GR SUCH IS CONSIDERED PART OF 5. Discrimination as form of ULP
MGMT. PREROGATIVE.
Discrimination occur when a union member
Run-away Shop involved in union activity, is treated differently
from a non-union worker.
When an industrial plant is moved by its owners
from one location to another location to escape Anti-union animus is found when the ER’s
labor regulation or State laws, term is also used to conduct is not motivated by legitimate
describe a plant removed from one location to a substantial business reasons.
new location in order to DISCRIMINATE against EES
at the old plant because of their UNION ACRIVITIES. e.g.: Non-regularization of long time EES
Also, in relation to Corporation Law when the because of their affiliation w/ the union while
relocation is accompanied by a transfer of title to a new EES were immediately regularized.
new ER who is merely an ALTER EGO of the original Acts not considered as discriminatory:
ER such would warrant the lifting of the Corporate
Veil because the juridical personality was used as 1. No discrimination when the EES are not
similarly situated. For example, the
4. Company –domination of union enjoyment of the profit-sharing scheme by
managerial and supervisory EEs who are
Par. D of Art. 248: Formation. Function or non-union members. Hence, do not enjoy
administration is has been assisted by any the benefits of the CBA.
act defined as ULP under the LC. Labor 2. Dismissal pursuant to a union security
organization in which, in whole or in part, is clause. Subject to compliance to the
ER controlled or ER dominated.
Labor Law Quick Notes by MV Matillano 5

fundamental rule that an EE is entitled to a


NOTICE AND HEARING prior to dismissal.
It is not ULP for an ER to ask a union requesting to
INDIRECT DISCRIMINATION: what cannot be done bargain collectively that such union first show
directly may not be done indirectly. Thus, dismissal proof of its being a majority union.
of an EE for having filed charges or for having given
or being about to give testimony is ULP. This 7. Paid Negotiation
includes as well dismissal of laborer on account of
This is a 2 way street prohibition
the union activities of his brother, wife or husband.
In line with the LEGISLATIVE INTENT to assure It is the act of the ER to pay negotiation or
absolute freedom of the EE to establish labor attorney’s fees to the union or its officers or agents
organizations and unions. as part of the settlement of any issue in CB or any
other dispute. It is also prohibited for union officers
or agents from asking for or accepting such
payments.
6. Indirect Discrimination
8. Violation of the CBA
* Refer to preceding discussion
Only when the violation is GROSS- There must be a
It must be underscored that Art. 248f is the only
flagrant and/or malicious refusal to comply with
ULP that need not be related to the exercise by the
the economic provisions of the CBA.
EES of their right to self-organization ad CB.
All the ULP acts must have a relation to the EES
ER’s reprisal against the testifying EE is ULP
exercise of their right to self-organization. This is
because furthermore, it violates the right to engage
the definitional element of ULP.
on concerted activity, a right included in the right
to SO. GROSS VIOLATION NOT GROSS
Cognizable by the LA, Cognizable by the
Ang punto ng provision na to hindi ka pwedeng
this involves a flagrant grievance machinery
gantihan ng amo or boss mo dahil tetestigo ko
and/or malicious found in the CBA.
laban sa kanya dahil maymali siyang ginawa.
refusal to comply with RA6715
Kunwari tatanggaling ka sa trabaho mo kung
the economic
tetestigo ka.
provisions of the CBA.

7. Violation of the Duty to Bargain

Art. 248 enunciates the 3 CBA related ULP: RELIEFS AVAILABLE


1. To violate the duty to bargain collectively as
prescribed in the LC
2. To pay negotiation or attorney’s fees to the
union or its officers or agents as part of the
settlement of any issue in collective
bargaining or any other dispute.
3. To violate a CBA
A company’s refusal to make counter-proposal, if
considered in relation to the entire bargaining
process.

Examples of ULP in bargaining:


1. Delaying negotiations by discussing unrelated
matters
2. Refusal to accept request to bargain
3. Rejecting a union’s offer to prove its majority
claim
4. Shutdown to avoid bargaining
5 Engaging in surface bargaining
Labor Law Quick Notes by MV Matillano 6

2. Causing or attempting to cause an employer


1. Civil liability to discriminate against an employee,
•Recovery of civil liability in the administrative proceedings shall including discrimination against an
bar recovery under the Civil Code. (LC, Art. 247) employee with respect to whom
membership in such organization has been
2. Criminal Liability
denied or terminating an employee on any
•No criminal prosecution may be instituted under this title w/out ground other than the usual terms and
a final judgment finding that a ULP was committed. (LC, Art.
247) conditions under which membership or
continuation of membership is made
3. Cease and desist order available to other members.
•The restrained misconduct was an issue in the case
•That there was a finding of fact of said misconduct 3. To violate the duty, or refuse to bargain
•Such finding is supported by evidence collectively w/ the ER, provide it is the
representative of the EES
4. Affirmative order

•The order may usually direct the full reinstatement of the 4. To cause or attempt to cause an ER to pay
discharged EES to their substantially equivalent positions
without prejudice to their seniority and other rights and or deliver or agree to pay or deliver any
priveleges.
money or other things of value, in the
nature of an exaction, for srvices w/c are
5. Court may order the ER to bargain
not performed or not to be performed,
including the demand for fee for union
6. CBA may be imposed upon an ER who refused
to bargain w/ the union of its EES. negotaitons.

7. STRIKE by union members.


5. To ask for or accept negotations or
attorney’s fees from ERs as part of the
settlement of any issue in CB or any other
dispute or
ULP cases are not subject to compromise in view
of the public interest involve.
6. To violate a CBA
The commission of ULP by an ER to an EE is subject
to criminal prosecution which can only be filed
when the decision of the labor tribunals, finding
the existence of ULP, shall have become F and E.
Upon written request of a LLO the ER should
furnish the EE its annual audited financial
statements, including the balance sheet and the
profit and loss statement, within 30 calendar days
from the date of receipt of the request, after the
union has been duly recognized by the ER or
certified as the sole and exclusive bargaining
representative of the EES in the bargaining unit, or
within 60 calendar days before the expiration of
the existing CB or during the CBA negotiation.
GR: Refusal to furnish the requested information is
in itself an ULP and also supports the inference of
surface bargaining.
EXPN: If the union failed to put its request in
writing, management cannot be held liable for ULP.

ULP OF LABOR ORGANIZATION

A labor organization commits ULP by any of the


following violations:
1. Restraint or coercion of employees in the
exercise of their right to self-organization:
However, the labor organization shall have
the right to prescribe its own rules with
respect to the acquisition or retention of
membership; and