Labor Relations (Finals) Transcript | Atty. Jefferson Marquez | A.Y.
2017-2018
LABOR RECITS (FINALS)
NOTE:
These are the oral recitations in Labor Relations (AY 2017-2018)
up to the Finals compiled from all the sections. Also, some
answers have been given. Please note that these are not the
100% guaranteed correct answers. Please minimize or regulate
the sharing of this document because WE do NOT want Atty.
Marquez to see this. Also, as much as possible, do not have this
printed. Thank you!
(CGDP)
RIGHT TO SELF-ORGANIZATION
1. Does the state promote unionism as a matter of
policy? Yes
2. Why do you think it is the policy of the state to
promote unionism? It is to enable the workers to
negotiate with the management employer effectively
and better when done individually
3. What is your concept of unionism? It is an organized
attempt by workers to improve their status by united
action
4. When you speak of unionism, does it refer to
workers or employers? Workers
5. Can’t the EE on their own negotiate with the ER to
improve their work conditions? They can but
collective bargaining is more effective
6. Does the constitution provide the freedom to form
associations? Yes.
ART III SEC 8: The right of the people, including those
employed in the public and private sectors, to form
unions, associations, or societies for purposes not
contrary to law shall not be abridged.
ART XIII SEC 3: It shall guarantee the rights of all
workers to self-organization, collective bargaining
and negotiations, and peaceful concerted activities,
including the right to strike in accordance with law. They
shall be entitled to security of tenure, humane conditions
of work, and a living wage. They shall also participate in
policy and decision-making processes affecting their
rights and benefits as may be provided by law.
7. What are the rights granted under the constitution?
(1) Right to self organization
- To join, assist and form labor organizations
(2) Right to collective bargaining and Negotiations
- EE and ER negotiate the terms of employment
collectively;
(3) Right to engage in lawful and peaceful concerted
activities
- Strikes and lockouts
8. Is strike a concerted activity? Yes
9. What is picketing? Marching to & fro the employers
premises usually with placards. It is regarded as a
concerted activity
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10. What is the third type of peaceful activity on the
employee’s side? BOYCOTT- refusal to patronize an
employer’s goods or services
If you are not a worker, it is called the RIGHT to
ASSOCIATION (Freedom of association)
11. Is this conferred by the constitution? Yes
12. What is this right to association? Broader right of
every individual. If we speak of workers, it is called the
RIGHT to ORGANIZATION. Right to association is
available to non-workers
13. What is your concept of freedom of association?
Right to associate (freedom of association) and also the
right not to associate (negative freedom of association).
You are free to act without any restraint
14. Are you a member of the LEX circle?
Do you have the freedom to disassociate from the
LEX circle?
Do you possess freedom and power in your
membership?
What is your legal basis for your membership? Is
there a contract or a law?
Did you as a student sign an agreement that you
should join the Lex Circle upon enrolment?
So if the membership in the Lex Circle does not have
liberty and power, what kind of freedom is that?
15. What are the principal attributes of the freedom of
association?
(1) Liberty or freedom—may act as he pleases in the
absence of legal restraint
(2) Power to join or not to join—choose to join or not to
join and which organization to join and he may
disassociate from the organization
When you join an association, you should have this
liberty and power because these two are inherent
attributes to this freedom of association.
Note: Freedom to disassociate is not available to the
worker in a closed-shop agreement which finds its
basis in the CBA and regulated by Art 248, LC where
EE, under pain of dismissal has no choice but to join
the existing labor organization
16. The general rule is that the freedom of association
carries with it the negative freedom of association.
What is this? Freedom not to join any organization
17. The right not to associate is not absolute, however.
Why? One exception is the Closed Shop Agreement,
where it stipulates that under pain of dismissal, the EE
has no choice but to join the existing labor organization.
This is found in the Labor Code
Art 259, (e). “…Nothing in this Code or in any other law
shall stop the parties from requiring membership in a
recognized collective bargaining agent as a condition for
employment, except those employees who are already
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Labor Relations (Finals) Transcript | Atty. Jefferson Marquez | A.Y. 2017-2018
members of another union at the time of the signing of
the collective bargaining agreement”
 25. Does the LC provide who are the managerial
Basically, they will only be hired if they will be members
of that recognized bargaining union which is the union
that is chosen by the employees in that bargaining unit.
The company cannot employ him because in the first
place, the company agreed with the union for that
condition. The contract is the law between them.
The closed shop agreement is considered the most
prized achievement of unionism because it wields unity
and solidarity.
18. Who are the parties to the CBA? ER and Recognized
Bargaining Union (in representation of the workers of
that bargaining unit)
19. Can the ER be forced to agree to such closed-shop
provision? No, the ER cannot be forced to agree
because a contract is supposed to be consensual. It
must be a product of agreement of both parties to be
valid.
20. Is there an exception to that exception where the
closed shop agreement cannot be enforced? It is
also found in Art 259 (e) “except those employees who
are already members of another union at the time of the
signing of the collective bargaining agreement”
 implements the managerial policies laid down and
These members who have exercised their freedom of
association previously cannot be forced to give up their
membership just because of this closed shop
agreement.
21. What is another exception to this exception where
the closed shop agreement cannot be enforced?
When it violates the employee’s freedom of religion. If
the exercise of religious freedom of the EE prohibits
such employee from affiliating with any labor
organization. The freedom of religion prevails over this
closed-shop provision which is basically contractual in
nature.
22. What is your opinion why we should respect
religious beliefs? We respect and honor religious
freedom because it is important not only for the
wellbeing of society but an individual’s wellbeing
23. Give another exception to this closed shop
agreement. When the CBA expressly excludes, so
where by the express terms of the CBA, the parties have
agreed that certain kinds of employees or certain named
employees are excluded in this provision
An example of a kind of EE who is not allowed to join
any union even when he is not managerial in position is
the confidential employee (where by the nature of his
job, the EE is made to assist or perform tasks involving
confidential records in relation to labor relations)
24. What is the 3-tiered classification of employees?
(1) Rank and file
(2) Supervisory
(3) Managerial
Remember, in Labor Standards, we only had
Managerial EE and Rank and file EE.
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employees? Yes, under Art. 219 (m)— “Managerial
employee is one who is vested with the powers or
prerogatives to lay down and execute management
policies and/or to hire, transfer, suspend, lay-off, recall,
discharge, assign or discipline employees”
26. Who are supervisory employees? Art. 219 (m)—
“Supervisory employees are those who, in the interest
of the employer, effectively recommend such
managerial actions if the exercise of such authority is not
merely routinary or clerical in nature but requires the use
of independent judgment.
27. Who are rank and file employees? Article 219 (m)—
“All employees not falling within any of the above
definitions are considered rank-and-file employees for
purposes of this Book”
The job of the rank and file EE is mostly clerical or
routinary.
28. What is the principal difference between managerial
and supervisory employees? Managerial EE have the
power to to lay down and execute management policies.
They also have the power to decide and do managerial
acts. However, the supervisory EE is one who
executed. Unlike, the managerial EE, they have the
power to recommend managerial acts and acts which
require discretion or independent judgment and not
merely routinary or clerical in nature
29. What is the hierarchy of the management?
(1) Top management
(2) Middle management
(3) Front-line (first-line) management (e.g. supervisors)
30. How do you classify my employment? Rank and file
31. Can I organize a labor union with my fellow
teachers? Yes
32. Is a workers’ association a union? No, they are
different. (DO 40-03)
Union—any labor organization in the private sector
organized for collective bargaining and for other
legitimate purposes
Workers’ Association—association of workers
organized for the mutual aid and protection of its
members or for any legitimate purpose OTHER THAN
collective bargaining.
For example: Faculty association in USC is composed
of managers (Deans), supervisor and rank & file
(teachers); but this is not allowed in a Union. The mixing
of supervisors and rank and file employees are not
allowed in a labor union. Managers are not allowed to
form or join labor unions.
33. What is the purpose of the formation of a labor
union? For collective bargain and negotiation.
However, in the workers’ association, it is for mutual aid
and protection or for any other purpose OTHER THAN
collective bargaining.
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34. Who are eligible to form/organize unions? Rank and
file employees
Supervisory employees are not prohibited from forming
or joining labor unions as long as they do not mix or join
with the labor union of rank and file employees. There
should be separate labor unions for rank and file
employees and supervisory employees.
35. Who are not eligible to form labor unions aside from
managerial employees? Confidential employees who
may be rank and file or supervisory EE.
36. Who are confidential employees? They assist and act
in a confidential capacity to or have access to
confidential matters or persons who exercise
managerial functions in the field of labor relations.
37. Does the LC expressly prohibit their right to self-
organization? No, the LC does not expressly prohibit
the right to self-organization of confidential employees.
They are prohibited by the Doctrine of Necessary
Implication. Being so involved in the managerial acts in
the field of labor relations, the absolute prohibition of
managers equally applies to them.
38. Are there supervisory EE who are also prohibited
from exercising this right? Yes, when they are
considered as confidential employees.
39. Why are supervisory employees not allowed to join
the rank and file employees in the same labor
union? Conflict of interest
40. In what areas are there conflict?
(1) Area of Discipline – there will be no one to discipline
the rank and file employees
(2) Area of collective bargaining – loyalty will be
divided. Supervisory employees usually act in the
interest of the employer.
41. For managerial EE, do they have the right to self-
organization? No, they are absolutely prohibited from
joining a union for collective bargaining.
42. What about alien employees? What are the
requirements in order for them to join labor union?
(1) Aliens can be EEs in the Philippines if they have a
valid ALIEN EMPLOYMENT PERMIT issued by
DOLE (AEP)
(2) National of a country which grants the same or
similar rights to Filipino workers
(3) which has ratified either ILO convention no. 87 or
ILO convention no. 98 as certified by DFA
43. What is the name of those ILO?
(1) ILO 87—Freedom of association and protection of
the right to organize
(2) ILO 98—Right to organize and collective bargaining
44. Are aliens allowed to organize unions? NO. The
Labor Code does not allow aliens to organize or form a
union, they can ONLY JOIN OR ASSIST a labor union.
NOT FORM.
ARTICLE 284. [269] Prohibition against Aliens;
Exceptions. 220 — All aliens, natural or juridical, as
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well as foreign organizations are strictly prohibited
from engaging directly or indirectly in all forms of
trade union activities without prejudice to normal
contacts between Philippine labor unions and
recognized international labor centers: Provided,
however, That aliens working in the country with
valid permits issued by the Department of Labor and
Employment, may exercise the right to self-
organization and join or assist labor organizations
of their own choosing for purposes of collective
bargaining: Provided, further, That said aliens are
nationals of a country which grants the same or
similar rights to Filipino workers.
However, if you meet the three requirement above, you
can participate directly or indirectly in trade union
activities.
45. Why does the law not allow the aliens to form labor
organizations or directly or indirectly participate in
trade union activities? They may eventually dominate
the authorities and rule the Philippines
46. In forming and organizing a labor union, the law
allows the creation of independent union or forming
and organizing a local chapter through process of
chartering, let’s go to independent union first.
What are the requirements to form and organize an
independent union?
IRR Rule III
REGISTRATION OF LABOR ORGANIZATIONS
Section 2. Requirements for application. - A. The application
for registration of an independent labor union shall be
accompanied by the following documents:
(1) the name of the applicant labor union, its principal
address, the name of its officers and their respective
addresses, approximate number of employees in
the bargaining unit where it seeks to operate, with a
statement that it is not reported as a chartered local
of any federation or national union;
(2) the minutes of the organizational meeting(s) and the
list of employees who participated in the said
meeting(s);
(3) the name of all its members comprising at least 20%
of the employees in the bargaining unit;
(4) the annual financial reports if the applicant has been
in existence for one or 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;
(5) the applicant's constitution and by-laws, minutes of
its adoption or ratification, and the list of the
members who participated in it. The list of ratifying
members shall be dispensed with where the
constitution and by-laws was ratified or adopted during
the organizational meeting. In such a case, the factual
circumstances of the ratification shall be recorded in the
minutes of the organizational meeting(s).
47. You will notice that one of the requirement is that
you must have at least 20% of the employees in the
bargaining unit to form an independent labor union,
what does that mean? If you have 100 rank and file
employees in the bargaining union, you must have at
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Labor Relations (Finals) Transcript | Atty. Jefferson Marquez | A.Y. 2017-2018
least 20 employees as members to form and organize a
union.
48. Why do you think does the law provide for 20%
only? The policy of the state is to promote unionism.
The intent is to encourage employees to easily organize
and form an independent union. This 20% is the
minimum requirement. The 80% may not join the union
or may join other unions. But again, you do not need the
permission of this 80% to register as an independent
union.
This is a clear evidence that there can be 2 or more labor
unions in one bargaining unit.
49. What do you mean by constitution and by laws?
Constitution is a document that expresses the
philosophy and policies of the organization (e.g. name
of organization, declaration of principles, vision-
mission)`
By-laws give the specifics such as internal
management, schedule of meetings, etc.; terms and
conditions, duties and responsibilities of members and
officers (by-laws is more comprehensive)
50. Does it need to be ratified? How? Yes. There must be
proof majority of the total union membership ratified. So
if you have 20 members, 11 must ratify it. That should
be done in a general meeting called for that purpose.
51. Why should they ratify it? For it to be valid, binding
and enforceable among the members
52. What agency has the power to register an
independent union? Bureau of Labor Relations (part of
DOLE)
53. For purposes of collective bargaining and
negotiation, can there be more than 1 unit? No, there
should only be a SEBA (Sole and Exclusive Bargaining
Agent) elected through certification election (so
mayroong majority union and minority union)
54. To be certified as the SEBA, what is the voting
requirement? You must meet the double-majority rule
(valid certification election where majority of the
electorate are present and obtain the majority of the
valid votes cast)
The union that lost in the election will remain an
independent union. Only that, it does not become a
SEBA without prejudice to it being voted as a SEBA in
the future. The chance will come when the freedom-
th
period comes in. At the onset of the 5 year, any
legitimate labor union existing in the bargaining unit can
challenge the incumbent SEBA.
55. What happens if the bargaining unit does not obtain
the required double majority rule where majority of
the EE do not even cast their vote? Such becomes a
failure of election or an invalid election. The minimum
requirement is at the very least, there must be a valid
election.
56. What is meant by financial report? Accounting of the
money collected. This is to ensure the responsibility and
accountability of labor union
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57. Why must the union submit a financial report if it is
already existing for one year? Why are unions
existing for less than a year not covered with this
requirement? Because if a union is newly organized
(less than a year pa ni-exist), there might be no
collection of dues yet.
58. Can the union deduct the union dues from salary?
Yes
ARTICLE 113. Wage Deduction. — No employer, in his
own behalf or in behalf of any person, shall make any
deduction from the wages of his employees, except:
(b) For union dues, in cases where the right of the
worker or his union to check-off has been
recognized by the employer or authorized in writing
by the individual worker concerned
Here, the union will just wait for the employer to remit
the union dues that was automatically
deducted/collected from the salary of the employee that
is member of the union.
59. Where will you appeal from BLR incase intra-union
dispute? To SOLE then certiorari to CA then SC
60. By submitting the names of their members, does
that mean the ER will know? Yes, the ER will know
which may open to a curtailment of their right. The ER
who may know of an officer or a member of the union
may promote him as a manager absolutely disqualifying
him to be one or grant an across-the-board wage
increase making the workers think of the
unnecessariness of a union
Creation of Local/ Chapter
We are already through discussing the requirements for
registrations of an independent labor union. As you can see, the
requirements are listed and enumerated. It is quite extensive,
especially with the 20% mandatory membership requirement.
However, it is different from that of registration of a local or
chapter.
If you look at the requirements for registration of a local or chapter
does not mention of the 20% membership requirement. The
message there is that it is easier to organize as a local or chapter
through the process of chartering. The intent of the law is to
encourage the creation of a local or a chapter because if you are
created by a federation or a national union, at least the local or
chapter is assured of strength. The federation or national union is
comprised of many independent unions. So mas malaki siya.
(showed us slides; nastop pud akong recording ani guys)
The charter certificate, that’s how it looks. Just like a diploma. The
local or chapter can create their own name. The federation or
national union can create a local or chapter through the process
of chartering. All they have to do is issue this charter certificate.
By this time, the local or chapter will have acquired legal
personality only for the purpose of filing a petition for certification
election. Not yet on the exercise of the other rights of a legitimate
labor organization. In order that the local or chapter will be able
to exercise rights of a legitimate labor organization, it will have to
comply with the submission of requirements under DO 40-03, as
amended (I think the latest amendment was in 2015). Just look
at the requirements in the DO. Kapag ang BLR which is the
agency which has the power to approve or deny applications for
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registration finds out that all the requirements have been
submitted, the DOLE will issue a Certificate of Creation of local
or chapter. To distinguish it from a Certificate of Registration. Pag
independent union, ang i-issue ng DOLE ay Certificate of
Registration pero kung na create ka as a local or chapter, ang i-
issue ng DOLE is a Certificate of Creation of local or chapter. Of
course, that was in the past. Now, it is the BLR that will issue
these certificates through the DOLE regional office.
Certification Election
The next topic is of course, logically, is the Certification Election.
Meron ka ng Certificate of Registration eh as an independent
union or a Certificate of Creation as a local or chapter. So next
topic natin is the petition for certification election. One of the rights
of a legitimate labor organization is to be certified as the SEBA
for the purpose of collective bargaining. Now, the union cannot
exercise the right to collective bargaining and negotiation unless
it has been certified as the SEBA.
Under DO 40-03 as amended in 2015, the labor organization can
file a Request for SEBA Certification. That provision took over
voluntary recognition. That was in the old DO 40-03. So yan and
Request for SEBA. That Request for SEBA is so easy to
understand. I leave that to you because that’s only for academic
purposes. Yang requirements are so self-explanatory. What is
important is this certification election process.
What is the nature for this petition for CE? The SC said in that old
San Miguel case, it is not a litigation. It is a mere investigation of
a non-adversary fact-finding character the purpose of which is to
determine from among the qualified rank and file employees,
whether they want you to be the SEBA to represent them for the
purpose of collective bargaining. The proceedings are quasi-
judicial in nature. Being so, the decisions rendered therein by the
Med-Arbiter (Mediator-Arbiter) may be the subject of appeal. In
that sense, the Med-Arbiter exercises a quasi-judicial power.
While it is true that it is not a litigation yung CE, any decision
rendered by the Med-Arbiter may be subject of an appeal to the
SOLE. Decisions rendered therein may as to the coverage of
employees who would constitute the bargaining unit will be
governed by res judicata.
The first thing you have to take note is who may file. It says there
that the one who may file is any legitimate labor organization, the
employer when requested to bargain collectively, the federation
or national union that has issued a charter certificate. (What
happens kasi is that in practice, the federation or national union
is usually the one who will file a petition for CE in place of the
local or chapter created. However, the local or chapter may do so
once it has been issued such charter certificate. It just chooses
not to do so in order not to divulge the identity of its officers
because there might be instances when these officers or union
members be subjected to undue pressure. That is why it will be
the federation or national union which will file such petition.) Any
of these 3 may file a petition for CE.
They can file the petition with the Med-Arbiter. Where to file, look
at the venue, the regional office of the DOLE, of course the
Bureau of Labor Relations of the DOLE has jurisdiction. When to
file? If the establishment is not organized, it can be filed at any
time. (When is an establishment organized or not? It is
unorganized when there is no certified or recognized bargaining
agent or a CBA. It is organized when there is a certified or
recognized bargaining agent or a CBA.) While it is true that the
EEs in an establishment may organize and form a union or a labor
organization in the establishment where it is operating, it cannot
exercise the rights to collective bargaining and negotiation unless
it is certified or recognized as a SEBA. One way of doing that
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under DO 40-03 as amended is filing for a Request for SEBA.
Another way, the more democratic is through petition for CE. If
the establishment is organized, as to when you can file, you have
to take note of the different barriers. You cannot just file it at
anytime. Why? Because there is already an existing certified or
recognized BA.
The Med-Arbiter which has jurisdiction, will have to determine
based on the petition if the petition discloses that it is filed in an
establishment that is not organized, it will grant the petition (for
as long as all the other requirements are met). There is no need
for a support requirement (in membership) for a labor
organization in an establishment that is not organized. All that is
needed is that it is filed by a legitimate labor organization
(independent union, local or chapter). Pag organized yung
establishment, then the Med-Arbiter will have to take a look
whether it is filed on time (filed during the 60-day period
immediately prior to the expiration of the existing CBA), whether
there is a legal impediment. Take note of these legal impediments
that will result to the denial by the Med-Arbiter of the petition for
CE.
Contents. I just want you to look at the contents required in the
petition. Everything is there class. You just have to take a look.
The regional office of the DOLE will have to raffle the petition if
there are 2 or more Med-Arbiters (if there is only one, then no
need to raffle obviously).
The preliminary conference. The Med-Arbiter will issue a notice
of the conduct of a preliminary conference. What is done during
the preliminary conference? Look at your 40-03. There are many
items. One of the items there is the determination of the
bargaining unit that is sought to be represented by the petitioning
union. What if upon inquiry of the Med-Arbiter, the petitioning
union says it wants to represent the managerial bargaining unit.
Ay of course, sabihin niya tarant—there is no such thing as
managerial bargaining unit! That is the importance of knowing the
appropriate bargaining unit because it assumes that the workers
are qualified.
While it is true that the ER is also allowed to file a petition for CE.
The law requires that it can only file a petition when requested to
bargain collectively. Who requests? It is the workers who make
the request (write a letter to the management). That is more
theoretical. Because, in my experience there is not one employer
who will file a petition for CE. They will not want unions because
if there are unions then they will have a cut in their pocket. But if
the workers are really adamant in their want to organize then I
think we owe it to them to respect their rights.
The preliminary conference is a very informal proceeding before
the Med-Arbiter. I want you to look at the grounds for denial. Once
the Med-Arbiter has issued a notice for preliminary conference,
the petition itself must be posted in at least 2 conspicuous places
in the establishment so that the workers (members or not) will be
informed that there is this Union trying to represent itself in a
petition for CE and trying to earn the confidence of at least the
majority of the workers to be certified as the SEBA. If you don’t
like that union, then reject that union. But if you like that union to
represent you, then give them the vote of confidence. You have
the choice.
Posting of the preliminary conference. So everyone, the
intervenors and even the ER if he so minded can attend that
preliminary conference. But, the ER will stay as a mere
bystander. The law expressly considers the ER as a bystander.
By the way, if it is the ER who will file the petition for CE, once it
files the petition, its participation ends there (only to file). Also, the
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DOLE should keep its hands off except to facilitate the conduct
of the CE. The DOLE and the ER are mere bystanders. The
DOLE, however, has an active part in the sense that it facilitates
the conduct up to its final conclusion. Yung ER totally bystander
lang. If you look at the law, there are only 2 occasions that the ER
has a role. ER will only be notified of the petition because natural,
it is the ER who will negotiate with the union with regard its CBA;
and to submit a certified list of the employees. The ER is the one
who knows who are its EEs and who the EEs are in that
bargaining unit (would know who are qualified and disqualified).
At the end of the preliminary conference, the Med-Arbiter will tell
the parties (ER is not a party! The party there is the petitioning
union and any other union which intervenes) of the decision of
the Med-Arbiter whether to grant or deny the petition. All the Med-
Arbiter needs is to see if there is a ground for denial of the petition.
If there is no ground, then it will grant the petition. Focus on the
grounds of denial.
Along the way, there might be issues of consent election,
intervention, and there may be ancillary issues involving the
existence of ER-EE relationship, the Med-Arbiter will have to
resolve that ancillary issue when he issues the order denying or
granting the petition. You have to be alert during the preliminary
conference! Raise the issues!
From the order granting or denying, there is a topic of appeal to
the SOLE. If you look at the LC, you can see there that the
decision of the Med-Arbiter is appealable to the SOLE. But, if you
look at the IRR, there is a qualification. When the establishment
is not organized, then the order granting the petition is not
appealable. That is because there is yet no certified bargaining
agent and the policy of the state is to promote unionism. An order
denying the petition, that is appealable to the Secretary within 10
calendar days. For example, the Med-Arbiter denied the petition
but not under the grounds allowed, then the Med-Arbiter
committed an error of judgment. So you can appeal that order to
the SOLE. On the other hand, if the establishment is organized
(that means there is an existing or incumbent certified bargaining
agent), there is no rush. So, the order granting or denying may
be appealed to the SOLE (if establishment is organized!!).
By the way, if there is another union during the preliminary
conference that wants to participate in the election, there is
nothing wrong with that. Yan ang intervention. What do you do?
Just file a motion to intervene or a petition for intervention. As
long as you are qualified to participate in the CE.
Assuming that the order is appealable to the SOLE, sabi ng Rules
natin sa level ng SOLE “no MR shall be allowed” but that is not
consistent with the principle of exhaustion of administrative
remedies. So, with regard that provision of no motion for
reconsideration allowed, that is not a valid and enforceable
provision. You can file a MR notwithstanding the prohibition under
the Rules. You can file it in 10 days with the SOLE. Of course,
pag na deny, there’s no more appeal. There is however, a remedy
of certiorari under Rule 65 to the CA and Rule 45 to the SC
thereafter.
Once the order granting has attained finality, the Med-Arbiter will
have to endorse the petition to an Election Officer. That means
the Med-Arbiter is not the same as the Election Officer. Yan ang
assignment to an Election Officer. The Election Officer will
conduct the actual election. (gipagawas nami ani, so sorry wa kay
koy sure sa mga gipangdiscuss tbh)
The Election Officer will conduct a pre-election conference. There
are 2 conferences ha! Yung una—preliminary conference (you
already know the matters to be taken up there) and then pre-
6
election conference. The Election Officer presides in the second
conference. The Election Officer will serve the notice of pre-
election conference and in that same notice, he will direct the
submission of the certified list of EEs in the bargaining unit. The
ER will be directed to submit the list because sila yung may alam
sa mga empleyado or could be the payroll. But dapat, certified list
of EEs of the bargaining unit. Once it is done, he will conduct the
pre-election conference. Look at inclusion and exclusion
proceedings and qualifications of voters, that’s a lawyer’s job.
That will require a basic background of the labor laws.
Inclusion and exclusion proceedings. This is to include those who
are qualified but were excluded; and exclude who are included
but not qualified. You have to be prepared. What determines your
status as rank and file, supervisory or managerial is your job
description that will spell out your duties and responsibilities. It is
not the title or nomenclature that matters. At the end of the day,
there will be a list of qualified voters. For those names of the EEs
who were sought to be excluded or disqualified, they are
identified as challenged voters. The Election Officer cannot
decide who is disqualified or not. Wala siyang quasi-judicial
power to rule on that. Kapag chinallenge mo yan, the name will
be segregated and be a challenged voter. Walang ruling yan. It is
only the Med-Arbiter that rules or has quasi-judicial power. Since
it is only the Election Officer who is there, there will be no ruling
until the conclusion of the election.
What is another matter taken up during the pre-election
conference? Of course, the date of the election. It must be a
regular working day. Wag mong gawing holiday kasi yung mga
empleyado will not be interested in going to work (so there will be
no successful election or there may even be a failure of election
and there will be no certified BA). To be a valid election, majority
of the eligible voters must cast their vote. Place? It should be in
the establishment and not elsewhere.
Ang idiscuss din sa pre-election conference is the mechanics of
election. Like how many precincts should we have? Polling
booths? Things like that. Anything can be discussed under the
sun. And of course, there is the ballot preparation. With the list of
the qualified voters, the DOLE will know how many ballots to
prepare. Syempre, they will spare some ballots in case they are
spoiled ballots. A spoiled ballot refers to the ballot that is torn,
defaced or contains markings which can lead another to clearly
identify the voter who casts such vote. The DOLE is supposed to
ensure the secrecy and sanctity of the ballot. There should be no
duplication of the ballot, no pre-signing except to authenticate by
the parties, etc. These are things expected to be taken up at the
pre-election conference.
By the way, note the notice of election and posting. Kailangan
meron another posting. There are 2 sets of posting—the first one
is the posting of the petition for the CE and the next one is the
posting of the notice of election para all people there will be aware
that on this date, there will be a holding of a CE. At least it will
give them a chance to participate or not participate at all.
Come the day of the election proper. Before the actual conduct
of the election, there will be inspection of the polling place
(whether everything is in order). After that’s done, there will be an
actual voting na. People will queue to get their ballot; they will fill
up the ballot (yes for that union; no for that union). You will sign
your name there. There will be a topic of marking votes and
spoiled ballots (shet throwback election discussion; insert guji
huhu). Just look at the definition of a spoiled ballot. In that 2015
amendment, there is a definition of a spoiled ballot, abstention.
The ballot will have to be placed inside the ballot box. For those
voters that were challenged, although they can cast their vote,
they should not put their ballot inside the ballot box. Otherwise, it
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Labor Relations (Finals) Transcript | Atty. Jefferson Marquez | A.Y. 2017-2018
will mix up with the valid votes. And will confuse everybody. Their
votes will have to be segregated and placed in an envelope to be
opened only if it will materially affect the results of the election.
On-the-spot questions, the Election Officer can rule on that.
Nothing to do with the merits of the election. That is within the
power of the Election Officer not the Med-Arbiter.
Protest! “Mr. Election Officer, I would like to manifest my protest
on the conduct of your election! I saw management people inside
the polling place trying to distribute money to the voters” That’s a
protest. You have to ask the Election Officer to record that in the
minutes of the election because after the close of the election,
that protest must be formalized in writing within 5 days.
Otherwise, it will be considered waived. Any deviation from what
the parties agreed upon which the party considers material that
will affect the results of the election will be named a protest. Dapat
alisto ka! Should the Election Officer rule? Noooo, walang power
yung Election Officer to rule on the protest. That will eventually
be submitted to the Med-Arbiter assuming that it is formalized
within 5 days from the close of the election.
If everything has been cast and done, then we are left with the
closure of the election precincts. Canvassing of votes, tabulation
and appreciation of ballots. If you have a valid vote, spoiled ballot,
abstention (blank or unfilled ballot validly cast by an eligible voter;
not a negative vote; it is also considered to determine whether
the election is valid or not but of course you do not use that to
determine whether you are certified SEBA). When is there a valid
election? When a majority of the eligible voters have cast their
vote and of course, if the union obtains the majority of the valid
votes cast then it may be certified as the SEBA. That is the so-
called double-majority rule. Failure of election. Look at the
definition in your IRR. It’s not in the LC but in the IRR—when the
votes cast is less than the majority of the eligible voters. If there
is a failure of election, we will have to wait for not more than 6
months if there is a motion filed for the conduct of another
election. In the past (15 years ago), the Med-arbiter will
automatically order the conduct of another election and election
and election and election. Makes the lawyer so rich because
there is always an election. But right now, if there is a failure of
election, the Med-Arbiter will have to wait if there is a motion for
the conduct of another election. This will be done within 6 months
from the failure of election. Kung wala, we have to wait for 1 year
from the finality of the last election, before the filing of another
petition for CE. Parang impeachment ba, meron siyang bar.
Runoff election. Don’t forget. There are 3 or more choices, none
of which has obtained the majority of the valid votes cast
notwithstanding a valid election. A runoff election can only be
conducted when there is a valid election. In that valid election,
there are 3 or more choices. None of the unions has obtained the
majority of the valid votes cast. When you say “valid votes cast”,
that excludes spoiled ballots. For a valid election, you have to
count even the spoiled ballots, abstention to determine a valid
election. But to determine whether you are certified as the SEBA,
you must obtain majority of the valid votes cast. That means we
exclude the spoiled ballots and abstention. Why is there a runoff
election? Because if there’s a valid election, that already
indicates the desire of the EEs to organize themselves as a labor
organization, the desire to choose their representatives in
collective bargaining—only that none of which has obtained the
majority of the valid votes cast.
Pagkatapos ng election proper, the minutes inayos na ng Election
Officer, lahat yan i-endorse niya sa Med-Arbiter, who will do the
proclamation of the results of the election. If there is a winner,
certify the winner through the proclamation. That is through an
order issued by the Med-Arbiter on the results of the election.
7
Re-run election. That is something new. I just want you to look at
the definition of terms. Baka lumabas yan sa multiple choice, you
will be confused again with the different kinds of election.
Whatever is the results of the election, may be appealed to the
SOLE. Look at the LC. Notwithstanding the provision on the
prohibition of filing a MR, of course, under the principle of
exhaustion of administrative remedies, we have no choice but to
allow that MR. Remember, before filing certiorari, there must be
no other plan, speedy, adequate remedy under the course of law.
The MR is one of those remedies. From the SOLE to the CA; from
the CA to the SC.
(PowerPoint outline as typed by Nica)
Outline of Certification Election Procedure
Nature: Mere investigation of a non-adversary fact finding
character to ascertain the desire of the employees as to the
matter of their representation. It is not a litigation, however, the
proceedings are quasi-judicial in nature and decisions rendered
therein may as to the coverage of employees who would
constitute the bargaining unit will be governed by res judicata.
Who may file [Art. 251(242)(b) & 270 (258); Rule 8, Sec1]
➡ Any legitimate labor organization may file a petition for
certification election.
Where to file; Venue (Rule 8, Sec 2**) and Jurisdiction [Art
269 (257*)]
➡ A petition for certification election shall be filed with the
Regional Office which issued the petitioning union's
certificate of registration/certificate of creation of chartered
local.
➡ Where two or more petitions involving the same bargaining
unit are filed in one Regional Office, the same shall be
automatically consolidated with the Med-Arbiter who first
acquired jurisdiction. Where the petitions are filed in
different Regional Offices, the Regional Office in which the
petition was first filed shall exclude all others; in which case,
the latter shall indorse the petition to the former for
consolidation.
Article 269 (257). Petitions in Unorganized Establishments
➡ a certification election shall automatically be conducted by
the Med-Arbiter upon the filing of a petition by any legitimate
labor organization, including a national union or federation
which has already issued a charter certificate to its
local/chapter participating in the certification election or a
local/chapter which has been issued a certificate by the
national union or federation
➡ in cases where the petition was filed by a national union
or federation, it shall not be required to disclose the names
of the local chapter’s officers and members.
When to file [Rule 8, Sec 3; Art 269(257*) & 268 (256*)]
Rule 8, Section 3
GR: A petition for certification election may be filed
anytime
XCPs:
(a) when a fact of voluntary recognition has been entered
or a valid certification, consent or run-off election has
been conducted within the bargaining unit within one
(1) year prior to the filing of the petition for certification
election. Where an appeal has been filed from the
order of the Med-Arbiter certifying the results of the
election, the running of the one year period shall be
suspended until the decision on the appeal has
become final and executory;
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(b) when the duly certified union has commenced and
sustained negotiations in good faith with the employer
in accordance with Article 250 of the Labor Code
within the one year period referred to in the
immediately preceding paragraph;
(c) when a bargaining deadlock to which an incumbent or
certified bargaining agent is a party had been
submitted to conciliation or arbitration or had become
the subject of a valid notice of strike or lockout;
(d) when a collective bargaining agreement between the
employer and a duly recognized or certified
bargaining agent has been registered in accordance
with Article 231 of the Labor Code. Where such
collective bargaining agreement is registered, the
petition may be filed only within sixty (60) days prior
to its expiry.
Art. 269 (257*)
Art. 268(256*)
Contents of Petition (Rule 8, Sec 4*)
➡The petition shall be in writing, verified under oath by the
president of petitioning labor organization. Where a federation
or national union files a petition in behalf of its local or affiliate,
the petition shall be verified under oath by the president or its
duly authorized representative of the federation or national
union. In case the employer files the petition, the owner,
president or any corporate officer who is authorized by the
board of directors, shall verify the petition. The petition shall
contain the following:
(a) the name of petitioner, its address, and affiliation if
appropriate, the date and number of its certificate of
registration. If the petition is filed by a federation or
national union, the national president or his/her duly
authorized representative shall certify under oath as to the
existence of its local/chapter in the establishment and
attaching thereto the charter certificate or a certified true
copy thereof. If the petition is filed by a local/chapter, it
shall attach its charter certificate or a certified true copy
thereof;
(b) the name, address and nature of employer's business;
(c) the description of the bargaining unit;
(d) the approximate number of employees in the bargaining
unit;
(e) the names and addresses of other legitimate labor unions
in the bargaining unit;
(f) a statement indicating any of the following circumstances:
(1) that the bargaining unit is unorganized or that there
is no registered collective bargaining agreement
covering the employees in the bargaining unit;
(2) if there exists a duly registered collective
bargaining agreement, that the petition is filed
within the sixty-day freedom period of such
agreement; or
(3) if another union had been previously recognized
voluntarily or certified in a valid certification,
consent or run-off election, that the petition is filed
outside the one-year period from date of recording
of such voluntary recognition or conduct of
certification or run-off election and no appeal is
pending thereon.
(g) in an organized establishment, the signature of at least
twenty-five percent (25%) of all employees in the appropriate
bargaining unit shall be attached to the petition at the time of
its filing; and
(h) other relevant facts.
Procedure:
8
A. Raffle of Petition (Rule 8, Sec 5* & 25) and assignment to
Med-Arbiter
➡ The Regional Director or his/her duly authorized
representative, upon receipt of the petition, shall
immediately assign it by raffle to a Med-Arbiter. The
raffle shall be done in the presence of the petitioner if
the latter so desires. (Rule 8, Sec 5, as amended)
➡ When there is no Med-Arbiter available in the Regional
Office by reason of vacancy, prolonged absence, or
excessive workload as determined by the Regional
Director, he/she shall transmit the entire records of the
case to the Bureau, which shall be within 48 hours from
receipt, assign the case to any Med-Arbiter from any of
the Regional Offices or from the Bureau. (Rule 8, Sec
25)
B. Notice of preliminary conference (Rule 8, Sec 6*)
➡ The petition shall immediately be transmitted to the
assigned Med-Arbiter, who shall immediately prepare
and serve a notice of preliminary conference to be held
within 10 working days from the Med-Arbiter’s
receipt of the petition. (as amended)
➡ The service of the petition to the employer and of the
notice of preliminary conference to the petitioner and the
incumbent bargaining agent, if any, shall be made within
3 working days from the Med-Arbiter’s receipt of the
petition. The service may be made by personal service,
by registered mail, or by courier service.
C. Posting of petition and notice (Rule 8, Sec 7**)
D. Preliminary Conference (Section 8, Sec 9) and employer as
bystander [Art 271(258-A*) Rule IX Sec 1**;] and also DOLE
E. Order granting or denying the petition Rule 8, Sec 18**; Art
269 (257*)
(1) Grounds for denial [Rule 8 Sec 14*; Article 268 (256)]
(2) Prohibited ground for denial or suspension of election
[Rule 8, Sec 15; Art 246 (238-A)]
(3) Consent election [Rule 8, sec 10* & Sec 23] and
intervention: other legitimate labor union; interested
employee (Rule 8, Sec 8)
(4) Ancillary Issues (Rule 8, Sec 16*); employer-employee
relationship
(5) Appeal to the Secretary/DOLE (Rule 8, Sec 17 & 21)
and stay of election (Rule 8, Sec 21)
(6) No motion for reconsideration (Rule 8, Sec 21)
(7) Remedy from order; certiorari (Rule 65, ROC)
F. Assignment to Election Officer (Rule 9, Sec 1)
G. Notice of Pre-election conference and submission of list of
employees or payroll (Rule 9, Sec 2*)
H. Pre-election conference (Rule 9, Sec 3&4)
(1) Inclusion or exclusion proceedings and qualification of
voters [Art 255(245*); Rule 9 Sec 6**; Art 219(212)(f)]
(2) Challenge of voter (Rule 9, Sec 10) and list of eligible
voters
I. Notice of Election and posting (Rule 9, Sec 7**)
A. Ballots preparation and signing; Secrecy and Sanctity of
ballot (Rule 9, Sec 8**)
J. Election Proper
(1) Inspection of polling place, booths, etc (Rule 9, Sec 7)
(2) Actual voting
(1) Marking of votes and spoiled ballot (Rule 9, Sect 9)
(2) Challenge of votes procedure; casting of votes
(Rule 9, Sec 10**)
(3) On the spot questions (Rule 9, Sec 11)
(4) Protests (Rule 9, Sec 13**) and Period to Formalize
protest
(5) Closure of Election precincts, canvassing of votes
(Rule 9, Sec 13&14) and tabulation and
appreciation of ballots
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(6) Valid election, failure of election (Rule 9, Sec 17-
19) and run-off election (Rule 10, Sec 1&2)
K. Proclamation of results of election and certification of winner;
Certification of Collective Bargaining Agent (Rule 9, Sec 20;
Sec 16**); Re-run Election (Rule 9, Sec 18**)
L. Appeal to the Secretary/DOLE (Art 272 (259); Motion for
Reconsideration Not prohibited prior to Certiorari under Rule
65)
After that, after you have been certified as the SEBA. You will
now be able to exercise the right to collective bargaining and
negotiation. The right to participate in policy and decision-making
processes. The right to engage in lawful, peaceful concerted
activities including the right to strike.
The first right mentioned in the LC is to act as representative of
each member for collective bargaining. When you speak of
members, it refers to the members of the appropriate bargaining
unit (members to the union or not). When the certified labor union
exercises collective bargaining, it does so for all the members of
the bargaining unit not just its own members. Even though these
non-members are not members of the union, they still gave their
support to the union through certification election. If the labor
organization has not yet been certified as the SEBA, then the
labor organization can only act in representation of the members
of the union. Once it has been certified as the SEBA through
certification election or SEBA certification (2015 amendment), it
will act in representation of all members of the bargaining unit
(members or not) for collective bargaining only. Between the
members of the union and the union, there exists a principal-
agent relationship.
The members of the bargaining unit who do not benefit form the
CBA cannot be assessed agency fees. If they benefit from the
CBA, the union may assess them agency fees (principal-agent
relationship). These are for the non-members of the union. The
agency fees will be in such reasonable amount, and not arbitrarily
imposed (agency fees more or less similar to union dues). If they
will not pay, then these non-members will not benefit from the
CBA. The CBA will apply to all employees in the bargaining unit
as a general rule.
The voluntary recognition in the old rules has been superseded
by the 2015 SEBA Certification amendment. The labor
organization will only be certified through certification election or
SEBA Certification. You will need to note the requirements and
what actions the RD will have to take during the SEBA
Certification. You will note that majority of the employees in the
bargaining unit must support the SEBA Certification. Otherwise,
no certification will be issued by the RD. There is no such thing
as direct recognition. Direct recognition is found in the old old
cases.
Remember, the number of votes cast should correspond to the
number of ballots. Take note of the double-majority rule, condition
for a valid election and condition of how to certify the union. If you
are a probationary worker, you will still be allowed to vote. The
tendency then of these probationary workers is that they will vote
against the union for fear of reprisal of the employer when they
are till not secured in tenure.
Rights of a Certified Bargaining Union Overview
Another right the certified SEBA can exercise is the right to
participate in the policy/ decision-making processes in so far as
they directly affect the rights, benefits and welfare of the workers.
Leading case is the PAL case when PAL created a Code of
Conduct for its EEs without consulting the certified union. This
Code of Conduct affects the rights, benefits and welfare of the
9
workers especially with regard the tenure of the workers. Being
so, the workers should have been afforded the right to participate
in policy and decision-making proceedings like this. When it was
about to be implemented, the union assailed it to be
unenforceable. The SC said the employer has the management
prerogative to come up with a Code of Conduct but the union
should have been consulted (not necessarily to attain their
approval). Therefore, it is a valid Code of Conduct but
unenforceable until it is published.
Another right is to own to property (real or personal) and to be
furnished with annual audited financial statements of the
company upon its request.
Right to Collective Bargaining
So once the LLO has been certified as the SEBA, it is now the
Certified Bargaining Union. The law expects it to exercise the
right to collective bargaining and negotiation. OW, the union’s
neglect of duty may constitute refusal to bargain collectively
which is the ULP. ULP carries administrative liability, civil liability
or criminal liability (remember the different quantums of proof).
Also, the identity of the acts and identity of the people responsible
should be identified (not sure if sa criminal ra ba ni or sa tanan
applicable). The jurisdiction of ULP belongs to the Labor Arbiter.
Look at the list of your unfair labor practices (Art 259, LC).
The certified bargaining union may as soon as possible exercise
its right to collective bargaining when it has been certified.
Remember, no petition for certification election shall be
entertained within 1 year from the issuance of it as a certified
SEBA. It is a mutual obligation between the ER and the
bargaining union to collectively bargain. Always take note that
this duty to bargain collectively is imposed on both employer and
union (that’s why “collectively” gani).
A CBA refers to the contract between a LLO and the ER
concerning wages, hours of work and all other terms and
conditions of employment in a bargaining unit (IRR). The union
will notify and submit its proposed CBA to the ER that they wish
to have a CBA. The ER must take into account the proposals of
the union, and may submit counter proposals within 10 days. The
parties will sit down and negotiate a CBA. The submission of the
proposals of the CBA will have to be related to the kind of
provisions in the CBA and the term of the CBA. The CBA has
economic provisions (talking about wages) and non-economic
provisions. The proposal may refer to either kind of provision. It
depends on the SEBA. If you look at the LC, the term of the CBA
is valid for 5 years only for the representation aspect (identity of
the incumbent bargaining agent; nobody can replace that certified
bargaining union for the next 5 years except for the freedom
period or 60 days immediately prior to the expiration of the CBA
where a petition for certification election or petition questioning
majority status may be filed) and not more than 3 years for “all
other provisions”.
The mandatory economic provisions include the wages. The CBA
should be renegotiated not more than 3 years after its execution
for “all other provisions”. Ordinarily, the first CBA will fix the term
to 3 years as for the economic provisions. Usually, when wages
are negotiated, the union will propose various terms and
conditions for the first 3 years. Usually, the rates are decreasing
rd th
until the 3 year because on the 4 year, the union and the ER
will be renegotiating again. The union must always be reasonable
in their negotiations (otherwise, the ER may be constrained to
declare insolvency due to serious business losses which the EEs
are not entitled to separation pay). This is why the certified
bargaining union is allowed to be furnished with audited financial
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statements of the ER to take into consideration the financial
situation of the ER.
As you know if the certified bargaining union engages in “blue-
sky bargaining” or those unreasonable and exaggerated
demands, this constitutes ULP. On the side of the ER, when it
engages in “surface bargaining” or where the ER really does not
have the intention to bargain with the union, this also constitutes
ULP. When it comes to no agreement in the CBA, either party
may declare a bargaining deadlock. Aside from wages, the CBA
may also be on the hours of work which have an economic
implication of overtime pay, holiday pay or nightshift-differential
etc.
Always remember that whatever you propose, the other party is
not constrained to accept your proposal. The other party may
make counterproposals. Exactly why it is called collective
bargaining and negotiation. That’s why we have a situation
known as bargaining deadlock which is a ground to strike or
lockout.
Non- economic/Economic Provisions
Meanwhile, with regard to political provisions or non-economic
provisions, the union may want to bargain for a “union security
clause” (which is a generic term). The union would want to protect
your union’s existence/ survival and union membership. It is what
we call an enforced membership. You can always dispense with
this kind of clause and let the members decide for themselves.
However, if you opt one, you may want a “closed shop
agreement”, “maintenance of membership agreement”, union
shop agreement”, “modified union shop agreement”, “exclusive
bargaining agreement”, “bargaining for members only
agreement”, “agency shop agreement” or “preferential hiring
agreement”. This is still subject to the approval of the ER during
negotiations. If the parties cannot agree, it may result to an
impasse or a deadlock which may be a ground to strike. FOCUS
ON THE DIFFERENT UNION SECURITY CLAUSES FOR THE
FINAL EXAMINATION.
Does it matter that we have to identify economic provisions from
the non-economic provisions? Yes, of course. This is because
under the law, when the employer violates flagrantly and
maliciously the economic provisions of the CBA, it amounts to
ULP. A violation of a CBA involving non-economic provisions
does not amount to ULP. That violation may only be subject to
the grievance machinery, and if unresolved, to the voluntary
arbitrator. Not all violations of the CBA amounts to ULP!
Economic provisions again include wages, holiday pay, bonuses,
nightshift differential pay, etc—so anything that has to do with
money or can be converted to a money equivalent. Non-
economic provisions include union security clauses, scope of
bargaining unit (as to who will benefit; parties are not prevented
from agreeing to exclude employees even those members from
the scope of the CBA like excluding casual or probationary
workers), term of the CBA, no-strike-no-lockout clause (not
uncommon for the parties to agree on this; it is not contrary to law
to maintain industrial peace and harmony in the establishment),
grievance machinery, labor-management council.
Grievance Machinery and Voluntary Arbitration
The Labor Code requires that a grievance machinery must be
incorporated in the CBA. The grievance machinery is a
mechanism to settle and resolve issues and disputes between
the ER and the certified bargaining union and its members. It is a
very peaceful mechanism which must be incorporated in the
CBA. A grievance may come from the ER or the EE which may
10
involve the implementation and interpretation of the CBA; and the
interpretation and enforcement of company personnel policies
(as per the LC).
Under the LC, if the grievance concerning these 2 major areas
remains unresolved, then the unresolved grievance should be
referred to voluntary arbitration. Therefore, you must take note
the difference between compulsory and voluntary arbitration. The
proceedings before the LA is compulsory arbitration. In voluntary
arbitration, the parties have the choice whether to submit the
issue to voluntary arbitration or not. Without consent, generally,
the matter cannot be the subject of a voluntary arbitration
EXCEPT on those 2 aforementioned areas (unresolved
grievances with regard the implementation and interpretation of
CBA and company personnel policies). Cases involving
grievance may include company personnel matters, company
rules and regulations and other controversies arising from the
ER-EE relationship. What this says is that the jurisdiction is
original and exclusive with regard the aforementioned 2 cases
(CBA and company personnel policies) but the parties may agree
in increasing the scope of the grievance machinery.
What if the parties forgot to include a grievance machinery? The
SC said it is mandated that a grievance committee be created
within 10 days from the signing of the CBA. (5 asterisks for
grievance machinery and voluntary arbitration for the Bar!!!) If you
do not know how to set up a grievance machinery, make one in
accordance with the Rules. Always remember, a grievance may
be on the part of the ER and the EE. So, if there is a provision in
the CBA that is in favor of the ER and is violated by the certified
bargaining union, it should be set up as a grievance.
Dapat dumaan kayo ng grievance machinery at voluntary
arbitration if an issue is “grievable”. You have to determine what
kind of act or omission that gave rise to the ULP. If it is grievable,
go to the grievance machinery! Invoke the grievance machinery!
The Revised Guidelines will tell you how to invoke the grievance
machinery. You cannot right away declare a strike bypassing the
grievance machinery and voluntary arbitration. It makes your
cause of action premature and will lead to your strike becoming
illegal. And, always remember the implications of an illegal strike
which might lead you to losing your employment (take note of
different liability for participation of the members). Reference to
grievance machinery is mandatory. Failure to incorporate a
grievance machinery in the CBA does not excuse them from
complying with such. Who invokes the grievance? The aggrieved
party!
Right to Participate in Policy and Decision-Making
Process—Labor-Management Council (LMC)
The LC says the workers have the right to participate in policy
and decision-making processes of the establishment insofar as
said processes will directly affect their rights, benefits and
welfare. The problem lang is the IRR does not really define and
describe the LMC. Wala pa ito na-ask sa Bar and even a SC case
discussing the LMC.
The LMC is just a voluntary body composed of representatives of
the ER and the EE. It just provides a center for discussion of
issues, concerns and matters affecting employment relationship
including personnel matters. Unless the parties agree to create
one, this body will never be created. Both ER and EE will decide
to create one. The purpose of the LMC is to maintain peace and
industrial order in the establishment.
How are the representatives chosen? The ER will choose its
representatives. The EE’s representatives—we will have to
determine if the establishment is organized or not. If organized,
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the representatives will have to be nominated by the bargaining
agent and appointed to the LMC. If unorganized, they will be
elected by at least the majority of all EEs in the establishment.
The distinction between a union and LMC is that the LMC is
composed of both ER and EE representatives. The Union is
made up entirely of EEs. The Union and LMC can co-exist
harmoniously. Anything that does not include collective
bargaining can be within the scope of the LMC. The union is
made primarily for the purpose of collective bargaining. What the
DOLE does is that they will not register a CBA without a LMC
provision even if there is no legal provision to that effect, nag-
comply nalang ang mga companies kahit done out of practice
lang ito (hahay DOLE pataka. Go for Gold, JMM for SOLE).
The LMC is being promoted by the DOLE whether organized or
unorganized because it is a peaceful mechanism to settle
disputes arising from the ER-EE relationship. So, even if the
establishment has a certified bargaining union, they will still have
a LMC to tackle on other issues (e.g. health and wellness,
Christmas Party) which is made up of workers and employer. The
LMC could be an alternative for the union for the workers who do
not desire a union to seek redress for their issues and concerns.
But again, LMC and union can co-exist together. The problem
really is when there is no forum to seek redress for their issues
and concerns in the establishment (which is why LMC is advised).
Another issue with the IRR is that there are no details given on
the creation of the LMC and other matters regarding it. Medyo na-
neglect ng DOLE.
Hanging question which was a BQ: “Is the LMC the same as a
work council?” It’s different but Atty did not say why. Work council
is a concept abroad. Unreasonable naman sa SC to ask concepts
that cannot even be applied here.
The case that illustrates the right of the workers to participate in
policy and decision-making processes is again that old case of
PAL. The Code of Conduct was challenged to be unenforceable
because PAL did not consult with the workers through the union
even when such Code of Conduct regulates their rights, benefits
and welfare. Sabi ng SC, the Code of Conduct is valid but not
enforceable. It does not mean naman that just because you have
the right to participate in policy and decision-making processes,
you can sit in the Board of Directors. If you consult, it does not
mean that the ER has to follow its advice.
What is the principle of co-determination (this is a principle
abroad)? The principle of co-determination states that it is a joint
responsibility of the ER and the EE to establish terms and
conditions of employment.
Right to be furnished with financial statements
The union being provided with financial statements will find it very
useful to exercise the right to collective bargaining and
negotiation. They will know the financial capability of the ER if it
can meet their demands. It can enable the ER to explain to the
union their financial condition why they cannot comply with their
conditions. Failure to furnish this data upon request shall
constitute ULP. Sabi ng SC yan (hindi included ito sa list of ULP).
The request must be in writing, otherwise you cannot expect the
ER to furnish these statements. Pag financial statements, you
can find there the balance sheet and profit-and-loss statements.
Unfair Labor Practices
Just study the enumeration. Remember, the yellow-dog contract
where there exists no ER-EE relationship but it still amounts to
ULP.
11
Conditions of ULP
(1) ER-EE relationship (except ULP in the yellow-dog
contract)
(2) Acts are those enumerated in the LC
(3) The intent is to interfere with the workers’ rights to self-
organization
ULP yan if the union will demand too much from the ER (making
exaggerated and unreasonable proposals; blue-sky bargaining).
The opposite is surface bargaining by the ER.
Surface Bargaining—employer’s proposal which could not be
offered with any reasonable expectation that they would be
accepted by the union; “going through the motions of negotiating
without any legal intent to reach an agreement
Blue-sky Bargaining—unrealistic and unreasonable demands in
negotiations by either or both labor and management, where
neither concedes anything and demand the impossible.
Featherbedding—name given to EE practices which create or
spread employment by unnecessarily maintaining or increasing
the number of EEs used, or the amount of time consumed to work
on a particular job (gusto ng union ito dahil makakuha sila ng
union dues even when the services of the EEs are not needed)
Yellow-dog contract—promise exacted from workers as a
condition of employment that they are not to belong to or attempt
to foster a union during their period of employment
Run-away shop—industrial plant moved by its owners from one
location to another to escape union labor regulations or state
laws. Also used to describe a plant removed to a new location in
order to discriminate against employees at the old plant because
of their union activities.
The ULP’s jurisdiction is with the Labor Arbiter. The prescriptive
period of ULP arising from Book V shall be filed with the
appropriate agency within 1 year from accrual of such unfair labor
practice. Otherwise, they shall forever be barred.
Right to peaceful concerted activities
1. Is the right to engage in peaceful concerted
activities protected or recognized in the
Constitution? Yes, Section 3, Article 13—guarantee
the rights of all workers to self-organization, collective
bargaining and negotiations, and peaceful concerted
activities, including the right to strike in accordance with
law.
2. What are peaceful and lawful forms of peaceful
concerted activities? Strike, picketing and boycott (but
boycott is not provided in the LC)
3. What is regulated by the LC? Strike is regulated. The
provisions in the LC do not mention picketing (only the
caption of the provision mentions picketing)
4. What is the purpose why the law has to regulate the
right of workers to strike? Strike by the employees if
left unrestricted may damage the employer and the
public especially when the establishment is engaged in
an industry indispensable to the national interest.
5. Identify to us some industries indispensable to
national interest that will be affected if there is
temporary stoppage of work. Section 22, Rule 22—
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Labor Relations (Finals) Transcript | Atty. Jefferson Marquez | A.Y. 2017-2018
(1) hospital sector, (2) electric power industry (EPIRA
Law), (3) water supply services to exclude small water
supply service such as bottling and refilling stations, (4)
air traffic control and (4) such other industries as maybe
recommended by the NTIPC
Remember, the hospitals or other industries we are
talking about are not those owned by the government
but those owned by private entities because their EEs
may strike, picket, etc.
6. What is the role of the SOLE if the workers of these
establishments strike? Article 278 (g), LC—He may
assume jurisdiction over the dispute and decide it or
certify the same to the Commission for compulsory
arbitration.
7. What is the effect of the strike if the SOLE assumes
jurisdiction? Article 278 (g), LC—such assumption or
certification shall have the effect of automatically
enjoining the intended or impending strike or lockout as
specified in the assumption or certification order. If one
has already taken 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 the same terms and conditions prevailing before
the strike or lockout.
So what is being contemplated here is an impending
strike or an actual strike already taking place.
8. Jurisprudence has mentioned of other industries
other than those mentioned in the LC. Give an
example! Banking institutions (under the General
Banking Law), Education institutions,
telecommunication industry, transportation,
pharmaceutical industry, airline industry and shipping
industry
If you belong in an industry that is not expressly
recognized by our Courts, it does not mean that you are
not engaged in an industry indispensable to national
interest such that the SOLE may not assume
jurisdiction. Prove effect of industry to economic
situation of the country and that you are one of the top
taxpayers of the country. Prove by substantiating with
pieces of evidence like ITR to prove that you are one of
the top taxpayers of the country.
DISCUSSION
The requisites of a valid strike:
(1) Filing of notice of strike with the NCMB—there must be
a ground to strike. Under the LC, the grounds to strike
are (1) ULP and (2) bargaining deadlock. In ULP, you
have to take note that a mere violation of the CBA is not
ULP. But, if the violation is gross (malicious or flagrant
refusal to comply with the economic provisions of the
CBA), it will amount to ULP.
Art. 248. Unfair labor practices of employers. It shall be unlawful
for an employer to commit any of the following unfair labor
practice:
a) To interfere with, restrain or coerce employees in the
exercise of their right to self-organization (includes right
to join, form or assist in the formation of a labor
organization);
b) To require as a condition of employment that a person
12
or an employee shall not join a labor organization or
shall withdraw from one to which he belongs (yellow dog
contract; “person” meaning the contract may be with one
who is not an employee yet); 

c) To contract out services or functions being performed by
union members when such will interfere with, restrain or
coerce employees in the exercise of their rights to self-
organization (mere contracting our functions performed
by regular workers are not ULP; ULP only if the purpose
is to bust the union or get rid of the union; different ang
labor-only contracting and ULP) 

d) To initiate, dominate, assist or otherwise interfere with
the formation or administration of any labor
organization, including the giving of financial or other
support to it or its organizers or supporters (to prevent a
company-dominated union; ER should not extend its
helping hand to organize a union; ER is a bystander); 

e) To discriminate in regard to wages, hours of work and
other terms and conditions of employment in order to
encourage or discourage membership in any labor
organization. Nothing in this Code or in any other law
shall 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
recognized collective bargaining agent may be
assessed a reasonable fee equivalent to the dues and
other fees paid by members of the recognized collective
bargaining agent, if such non-union members accept the
benefits 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 (if your purpose of discriminating is to
discourage the formation of a union then it constituted
ULP; it is allowed for the ER to have just discrimination
without any intent to interfere with right to self-
organization; “intent” must be substantiated and proven
with acts done by the ER before, during or after); 

f) To dismiss, discharge or otherwise prejudice or
discriminate against an employee for having given or
being about to give testimony under this Code (EEs who
given testimony about their ER should not be
discriminated); 

g) To violate the duty to bargain collectively as prescribed
by this Code; 

h) 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 (example
the ER would just pay the union or EEs to drop the
charges against the ER); or 

i) To violate a collective bargaining agreement (remember
violation should be with regard to economic provisions
of the CBA). 

The provisions of the preceding paragraph notwithstanding, only
the officers and agents of corporations, associations or
partnerships who have actually participated in, authorized or
ratified unfair labor practices shall be held criminally liable.
(Complainant should be able to identify those who are liable of
committing ULP because it constitutes criminal liability. It requires
proof.)
Art. 249. Unfair labor practices of labor organizations. It shall be
unfair labor practice for a labor organization, its officers, agents
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Labor Relations (Finals) Transcript | Atty. Jefferson Marquez | A.Y. 2017-2018 13

or representatives:
a) To restrain or coerce employees in the exercise of their
right to self-organization. However, a labor organization
shall have the right to prescribe its own rules with
respect to the acquisition or retention of membership;
b) To cause or attempt to cause an employer to
discriminate against an employee, including
discrimination against an employee with respect to
whom membership in such organization has been
denied or to terminate an employee on any ground other
than the usual terms and conditions under which
membership or continuation of membership is made
available to other members;
c) To violate the duty, or refuse to bargain collectively with
the employer, provided it is the representative of the
employees;
d) To cause or attempt to cause an employer to pay or
deliver or agree to pay or deliver any money or other
things 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;
e) To ask for or accept negotiation or attorney’s fees from
employers as part of the settlement of any issue in
collective bargaining or any other dispute; or
f) To violate a collective bargaining agreement.

The provisions of the preceding paragraph notwithstanding, only

the officers, members of governing boards, representatives or
agents or members of labor associations or organizations who
have actually participated in, authorized or ratified unfair labor
practices shall be held criminally liable.

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