VII.

LABOR RELATIONS
A. Right to self-organization
1. Who may unionize for purposes of collective bargaining
Article 212(g) of the Labor Code defines a labor organization as “any union or association of
employees which exists in whole or in part for the purpose of collective bargaining or of dealing
with employers concerning terms and conditions of employment.” Upon compliance with all
the documentary requirements, the Regional Office or Bureau shall issue in favor of the
applicant labor organization a certificate indicating that it is included in the roster of legitimate
labor organizations. Any applicant labor organization shall acquire legal personality and shall be
entitled to the rights and privileges granted by law to legitimate labor organizations upon
issuance of the certificate of registration. (Sta. Lucia East Commercial Corporation vs. Hon.
Secretary of Labor and Employment, et al., G.R. No. 162355, August 14, 2009).

Article 249 LC – Meaning

--- The right to
JOIN
ASSIST or
FORM

Labor Organizations

For

Collective Bargaining Lawful Concerted Action

For
Collective Bargaining Mutual Aid and Protection

General Coverage
1. All persons employed in: Commercial
Industrial Enterprise
Agricultural

Commercial
Religious
Educational
Medical
--- whether operating for profit or not
--- for collective bargaining and mutual
Aid and protection

2. The following are also included in the coverage of the right to self-organization
Ambulant Intermittent Rural Worker with no definite employers
Itinerant Self-employed ---mutual aid and protection
2. Bargaining unit
*Labor Organization – refers to any union or association of employees in the private sector
which exists in whole or in part for the purpose of collective bargaining, mutual aid, interest,
cooperation, protection, or other lawful purposes.
*Legitimate Labor Organization – refers to any labor organization in the private sector
registered or reported with the Department.
*Union – refers to any labor organization in the private sector organized for collective
bargaining and for other legitimate purposes.

*What is the so-called Labor Organization and CBA Registration Unit of the RO of the DOLE?
Under Art. 237 of the LC, it is the repository of CBAs and other related agreements;
records of settlements of labor disputes and copies of orders and decisions of voluntary
arbitrators; it also collects fees for registration to be used for voluntary arbitration programs
deposited in an account called Special Voluntary Arbitration Fund (SVAF).

*Distinguish between “collective bargaining” and “dealing with the employer”?

The 2 purposes, i.e., collective bargaining and dealing with the employer, are both concerned
with the terms and conditions of employment, but in labor relations these 2 are NOT the same.
To BARGAIN COLLECTIVELY is a right that may be acquired by a LO after registering itself with
the BLR and after being recognized or certified by the BLR as the exclusive bargaining
representative of the employees.
DEALING WITH THE EMPLOYER, on the other hand, is a generic description of interaction
between employer and employees concerning grievances, wages, work hours and other terms
and conditions of employment, even if the employee’s group is not registered with the BLR. As
a legitimate labor relations process, dealing with the employer explains why a LO does not
always have to be a LU and why employer-employee collective interactions are not always
collective bargaining.

*What LOs are required to be registered?

1. Federation - means any LO with at least 10 locals/chapters or affiliates each of which
2. National Union must be a duly certified recognized CB agent
3. Industry Union - means any group of LLOs operating within an identified industry,
organized for CB or dealing with the employers concerning terms and conditions of
employment within an industry, or for participating in the formulation of social and
employment policies, standard and programs in such industry, which is duly registered with the
DOLE.
4. Trade Union Center - may refer to a group of national unions or federations organized
for the mutual aid and protection of its members, for assisting such members in collective
bargaining, or for participating in the formulation of social and employment policies, standards
and programs.
5. Independent Union

*What are the classifications of LO:

1. National Union/Federation
2. Industry Union
3. Trade Union Center
4. Alliance – is an aggregation of unions existing in one line of industry, or in a conglomerate, a
group of franchises, a geographical area, or an industrial center.
5. Company-Union – is a LO which, in whole or in part, is employer-controlled or employer-
dominated. This is prohibited under Art. 258(d) of the LC.
6. Independent Union – a LO operating at the enterprise level that acquired legal personality
through independent registration under Art. 239. But it may affiliate with a federation or NU, in
which case it may also be called an affiliate.
7. Chartered Union – this takes place when a duly registered federation/NU issues a charter to a
union in an enterprise and registers the creation of the chapter with the RO where the
applicant operates. The union recipient of the charter is called a chapter or local or chartered
local. The legal personality is derived from the federation/NU but it may subsequently register
itself independently.
8. Local Chapter – formerly called Chartered Local refer to a LO in the private sector operating
at the enterprise level that acquired legal personality through the issuance of a charter
certificate by a federation/NU. (only a federation/NU may directly create a local chapter, a
trade union center is not allowed to chapter directly) Under the LC and the rules, the power
granted to LOs to directly create a chapter or local through chartering is given to a federation or
national union only, not to a trade union center. (SMCEU v. San Miguel Packaging
Products Ees Union G.R. No. 171153, Sep. 12, 2007).
9. Affiliate – refers to an independent union affiliated with a federation, NU or local chapter
which was subsequently granted independent registration but did not disaffiliate from its
federation.

a. Test to determine the constituency of an appropriate bargaining unit

An appropriate bargaining unit is defined as “a group of employees of a given employer,
comprised of all or less than all of the entire body of employees, which the collective interest of
all the employees, consistent with equity to the employer, indicate to be best suited to serve
the reciprocal rights and duties of the parties under the collective bargaining provisions of the
law”. The test of grouping is community or mutuality of interest. Certain factors, such as
specific line of work, working conditions, location of work, mode of compensation, and other
relevant conditions do not affect or impede their commonality of interest. Although they seem
separate and distinct from each other, the specific tasks of each division are actually
interrelated and there exists mutuality of interests which warrants the formation of a single
bargaining unit

Although Article 245 of the Labor Code limits the ineligibility to join, form and assist any labor
organization to managerial employees, jurisprudence has extended this prohibition to
confidential employees. The positions of Human Resource Assistant and Personnel Assistant
belong to the category of confidential employees and, hence, are excluded from the bargaining
unit, considering their respective positions and job descriptions. As Human Resource Assistant,
the scope of one’s work necessarily involves labor relations, recruitment and selection of
employees, access to employees’ personal files and compensation package, and human
resource management. As regards a Personnel Assistant, one’s work includes the recording of
minutes for management during collective bargaining negotiations, assistance to management
during grievance meetings and administrative investigations, and securing legal advice for labor
issues from the petitioner’s team of lawyers, and implementation of company programs.
Therefore, in the discharge of their functions, both gain access to vital labor relations
information which outrightly disqualifies them from union membership. (San Miguel Foods,
Inc. vs. San Miguel Corp. Supervisors and Exempt Union, G.R. No. 146206. August 1, 2011).

A bargaining unit is a “group of employees of a given employer, comprised of all or less than all
of the entire body of employees, consistent with equity to the employer, indicated to be the
best suited to serve the reciprocal rights and duties of the parties under the collective
bargaining provisions of the law.”

The fundamental factors in determining the appropriate collective bargaining unit are:
(1) the will of the employees (Globe Doctrine); The main consideration in fixing the appropriate
CBU is the EXPRESS WILL OR DESIRE OF THE EMPLOYEES. The doctrine sanctions the holding of
a series of elections, not for the purpose of determining the collective bargaining agent but for
the specific purpose of permitting the employees in each of the several categories to select the
CBU.
(2) the main consideration in fixing the appropriate CBU is the affinity and unity of the
employees’ interest, such as substantial similarity of work and duties, or similarity of
compensation and working conditions (Substantial Mutual Interests Rule or The Community of
Interest Rule);
(3) Prior Collective Bargaining History – is also a determining factor in fixing the BU, but it is not
a decisive factor. This may be disregarded where the circumstances had been so altered or
where the reciprocal relationship of the employer and the particular bargaining agent has been
so changed that the past mutual experience can no longer be considered as a reliable guide to
the present determination of the bargaining unit. Under this situation, only the prevailing
factors should control the determination of the bargaining unit; and
(4) Similarity of Employment Status – the main consideration in fixing the appropriate CBU is
the status of employment. The rule requires that non-regular employees be treated separately
from regular employees. (Sta. Lucia East Commercial Corporation vs. Hon. Secretary of Labor
and Employment, et al., G.R. No. 162355, August 14, 2009)

Under Article 245 of the Labor Code, supervisory employees are not eligible for membership in
a labor union of rank-and-file employees. The supervisory employees are allowed to form their
own union but they are not allowed to join the rank-and-file union because of potential
conflicts of interest. Further, to avoid a situation where supervisors would merge with the
rank-and-file or where the supervisors’ labor union would represent conflicting interests, a local
supervisors’ union should not be allowed to affiliate with the national federation of unions of
rank-and-file employees where that federation actively participates in the union activity within
the company. Thus, the limitation is not confined to a case of supervisors wanting to join a
rank-and-file union. The prohibition extends to a supervisors’ local union applying for
membership in a national federation the members of which include local unions of rank-and-file
employees. (Coastal Subic Bay Terminal, Inc., vs DOLE. G.R. No. 157117,November 20, 2006 ).
There are two classes of rank and file employees in the university that is, those who perform
academic functions such as the professors and instructors, and those whose functions are non-
academic who are the janitors, messengers, clerks etc. Thus, not much reflection Is needed to
perceive that the mutuality of interest which justifies the formation of a single bargaining unit is
lacking between the two classes of employees. (U.P. v Ferrer-Calleja. G.R. No. 96189. July 14,
1992).

While the existence of a bargaining history is a factor that may be reckoned with in determining
the appropriate bargaining unit, the same is not decisive or conclusive. Other factors must be
considered. The test of grouping is community or mutuality of interests. This is so because the
basic test of an asserted bargaining unit’s acceptability is whether or not it is fundamentally the
combination which will best assure to all employees the exercise of their Collective Bargaining
rights. (Democratic Labor Assocation v Cebu Stevedorin Company, Inc.G.R. No. L-10321, Feb 28,
1958).

The attempt to make the security agencies appear as two separate entities, when in reality they
were but one, was a devise to defeat the law and should not be permitted. Although respect
for corporate personality is the general rule, there are exceptions. In appropriate cases, the veil
of corporate fiction may be pierced as when it is used as a means to perpetrate a social injustice
or as a vehicle to evade obligations. Petitioner was thus correctly ordered to pay respondent’s
retirement under RA 7641, computed from January 1979 up to the time he applied for
retirement in July 1997. (Enriquez Security Services,Inc. vs. Victor A. Cabotaje G.R. No.
147993,July 21, 2006).

*What are the requirements for union registration?

1. Principal address of the union;
2. Officer’s names and addresses;
3. Registration fee; and
4. Names of at least 20% of the BU who are the union’s members.

*What are the additional requirements for chartering of local or chapter?

1. Chapter’s constitution and by-laws;
2. Officers’ names and addresses; and
3. Principal office of the chapter.

*What are the additional requirements for registration of federation and NU?
1. Names and addresses of the companies where the locals or charters operate;
2. Proof of membership of at least 10 locals or chapters;
3. List of members in each of the 10 companies; and
4. The affiliate local or chapters are recognized bargaining agents.

*When is the legal personality acquired or granted to LLO?

It is acquired upon issuance of the Certificate of Registration. (Take note that this is not the
same with the acquisition of legal personality by a local chapter as provided for under Art.
240_A) (Take note further that the 20% membership requirement under Art. 240 applies only
to registration of an independent union; it does not apply to the registration of federation/NU)

b. Voluntary Recognition now Sole and Exclusive Bargaining Agent/SEBA Certification

When a Union can Request for SEBA Certification:
A LLO can request for SEBA Certification only when:
1. the establishment is unorganized; and
2. there is no other LLO within the bargaining unit

How to Obtain a SEBA Certification

A LLO can obtain a SEBA Certification by filing a request for SEBA Certification with the
RO that issued its Certificate of Registration or Certificate of Creation of Chartered Local. The
request for certification should be accompanied by the:
1. Certificate of Registration of the union or Certificate of Creation of the Local Chapter;
2. List of employees within the BU(comprising a majority) who supported the request
for SEBA Certification;
The request for certification should also include the following:
1. Name and address of the requesting LLO;
2. Name and address of the company where it operates;
3. Bargaining unit sought to be represented;
4. Approximate number of employees in the BU; and
5. Statement as to non-existence of another union within the BU.
The Union President must certify under oath that all the documents submitted are true
and correct based on his own personal knowledge.
SEBA Certification must be Posted
Once the SEBA Certification is issued, it should be posted in 2 conspicuous places in the
establishment.
Effect of SEBA Certification
1. It qualifies the union to act as the CBR of the employees covered by the BU.
2. It bars the filing of a petition for CE by any union for a period of 1 year from the date
of issuance of the SEBA Certification (SEBA Certification Year Bar Rule)

c. Certification election
A certification election is not a litigation but merely an investigation of a non‐adversarial fact‐
finding character in which BLR plays a part of a disinterested investigator seeking
merely to ascertain the desire of the employees as to the matter of their representation.
(Airline Pilots Ass’n of the Philippines v. CIR. G.R. No. L‐33705, April 15, 1977).

(i) In an unorganized establishment

- a petition for CE can be filed anytime. The mere filing of a petition for CE by a LLO is
enough to order the holding of a CE. The 25% consent requirement is not necessary. (Art. 269,
LC)
 Appeal from CE Orders in UE
An order granting the conduct of CE is NOT appealable. Any issue arising therefrom may
be raised by means of protest on the conduct and results of the CE.
However, an order dismissing the petition is appealable to the SOL within 10 days from
receipt thereof. (Sec. 18, Rule VIII, Book V, IRR as amended by Department Order No. 40-F-03)

(ii) In an organized establishment

An organized establishment is an enterprise where there exists a recognized or certified
SEBA.
When to File a Petition for CE
In OE, a petition for CE can be only be filed during the freedom period, i.e., within the
60-day freedom period prior to the expiration of a duly registered CBA.
CE can be ordered if the verified petition filed by a LLO is supported by the written
consent of at least 25% of all the employees in the bargaining unit. (Art. 268, LC)
The purpose of the 25% written consent requirement is to show that the petition union
represents a group of employees of the company who have substantial interest in the election
(NAMAWU v. Estrella, 87 SCRA 84). The 25% consent requirement need not be established with
mathematical precision. A prima facie showing of compliance will suffice (Atlas Free Workers
Union v. Noriel, 104 SCRA 565). Although it is necessary to attach the 25% written consent to
the petition for CE, submission of such requirement within a reasonable period from filing of
the petition for CE will still be considered as substantial compliance with the rule (Port Workers
Union v. Laguesma, 207 SCRA 329).
If the 25% is complied with, CE is MANDATORY. Exception , if the 25% is NOT MET, it is
still DISCRETIONARY to conduct CE as it is the best forum indetermining the will of the
employees (best forum rule)
Effect of Withdrawal of Consent
If the withdrawal or retraction of consent was made BEFORE the filing of the petition for
CE, the Med-Arbiter cannot order the holding of a CE, because in effect, the petition lacks the
required written consent (La Suerte Cigar and Cigarette Factory v. Director of BLR, 123 SCRA
679).
On the other hand, if the withdrawal or retraction of consent was made AFTER the filing
of the petition for CE, the Med-Arbiter can still order the holding of a CE because if the
withdrawal was made after the filing of the petition, it can be presumed that the withdrawal
was procured through duress, coercion or for valuable consideration, hence, the best forum to
determine if there was indeed undue pressure exerted upon the employees is the CE itself
wherein the employees can freely express their choice in a secret ballot (George & Peter Lines,
Inc. V. ALU, 134 SCRA 82).
Reason for the Distinction
The withdrawal or retraction made before the filing of the petition is presumed
voluntary, because the names of the employees who supported the petition are supposed to be
unknown to the opposite party, whereas with withdrawals made after the filing of the petition
are deemed involuntary, because the employees who supported the petition are already known
to the opposite party since their names are attached to the petition. Therefore, it would not be
unexpected that the opposite party would use foul means for the subject employees to
withdraw their support (La Suerte Cigar)

CE barred despite compliance of 25% consent requirement:

1. Contract-bar rule;
Exceptions:
a. CBA is unregistered (if the CBA is an arbitral award it need not be registered
hence it will bar CE)
b. CBA incomplete/ inadequate – sweetheart contract
c. CBA hastily entered into frustrating the right of employees ti file a petition for
CE at the proper time
d. CBA entered into during the pendency of the CE
e. CBA was registered with falsified supporting documents
f. CBA entered into by employer and a union not the exclusive bargaining
representative
g. in case of mass withdrawals/disaffiliation of the mebers from the majority
union
2. Outside of the freedom period rule;
3. One-year bar rule;
4. Deadlock bar rule;
5. Change of company unionism rule;
6. Negotiation-bar rule;
7. Appeal bar rule;
8. Not listed in the registry of unions rule

Petition for CE Filed by a Federation.

A duly registered federation or NU can file a petition for CE in behalf of its local chapter
whom it has been issued a Charter Certificate (Art. 241, LC).
To show that a charter certificate has been issued, the federation or NU should attach
the charter certificate to the petition. Failure of the federation or NU to submit the charter
certificate upon filing of the petition is a ground for dismissal of the petition.
A federation or NU which files a petition for CE in behalf of its local chapter cannot be
required to disclose the names of the officers and members of the local chapter.

Petition for CE Filed by the Employer

Art. 270, LC – An employer can file a petition for CE ONLY when it is requested to
bargain collectively.
Art. 271, LC – The Bystander Principle - CE is the sole concern of workers.
The Rule is not absolute: Exceptional Situations are:
1. No EER exist between the company and the employees sought to be represented by
the petitioning union.
2. When the petitioning union is not listed in the Registry of LLU, or when the
registration of the petitioning union has been cancelled with finality.
 3. When the bargaining unit sought to be represented by the petitioning union is not an
appropriate BU.
4. When the petition in an organized establishment is not supported by the written
consent of 25% of the employees within the BU.
5. When there is a duly registered CBA.
6. When the petition was filed within 1 year from certification as BA.
7. When the CBA negotiations are ongoing, or a deadlock in the CBA negotiations has
been submitted to conciliation or arbitration or had become the subject of a notice of strike or
lockout.

The choice of their representative is the exclusive concern of the employees; the employer
cannot have any partisan interest therein; it cannot interfere with, much less oppose, the
process by filing a motion to dismiss or an appeal from it; not even the allegation that some
employees participating in a petition for certification election are actually managerial
employees will give an employer legal personality to block the certification election. The
employer’s only right in the proceeding is to be notified or informed thereof. (Samahang
Manggagawa sa Charter Chemical Solidarity of Unions in the Philippines for Empowerment and
Reforms [SMCC-SUPER], Zacarrias Jerry Victorio – Union President v. Charter Chemical and
Coating Corporation G.R. No. 169717, March 16, 2011).

The general rule is that an employer has no standing to question the process of certification
election, since this is the sole concern of the workers. Law and policy demand that employers
take a strict, hands-off stance in certification elections. The bargaining representative of
employees should be chosen free from any extraneous influence of management. The only
exception is where the employer itself has to file the petition pursuant to Article 258 of the
Labor Code because of a request to bargain collectively. (San Miguel Foods, Inc. vs. San Miguel
Corp. Supervisors and Exempt Union. G.R. No. 146206. August 1, 2011).

The bargaining deadlock-bar rule was not applied because the duly certified exclusive
bargaining agent of all rank-and-file employees did not, for more than four (4) years, take any
action to legally compel the employer to comply with its duty to bargain collectively, hence, no
CBA was executed; nor did it file any unfair labor practice suit against the employer or initiate a
strike against the latter. Under the circumstances, a certification election may be validly held.
(Kaisahan ng Manggagawang Pilipino [KAMPIL-KATIPUNAN] vs. Trajano, G. R. No. 75810,
September 9, 1991).

This is what is strikingly different between the Kaisahan case and the case at bench for in the
latter case, there was proof that the certified bargaining agent, respondent union, had taken an
action to legally coerce the employer to comply with its statutory duty to bargain collectively,
i.e., charging the employer with unfair labor practice and conducting a strike in protest against
the employer’s refusal to bargain. It is only just and equitable that the circumstances in this
case should be considered as similar in nature to a ‘bargaining deadlock’ when no certification
election could be held. This is also to make sure that no floodgates will be opened for the
circumvention of the law by unscrupulous employers to prevent any certified bargaining agent
from negotiating a CBA. Thus, Section 3, Rule V, Book V of the Implementing Rules should be
interpreted liberally so as to include a circumstance, e.g., where a CBA could not be concluded
due to the failure of one party to willingly perform its duty to bargain collectively. (Capitol
Medical Center Alliance of Concerned Employees-Unified Filipino Service Workers vs.
Laguesma. G. R. No. 118915, February 4, 1997).

The Certification Proceedings

1. The petition for CE shall be filed with the DOLE RO which issued the Certificate of
Registration or Certificate of Creation of chartered local.

2. Motion to Dismiss:
1. No EER exist between the company and the employees sought to be represented by
the petitioning union.
2. When the petitioning union is not listed in the Registry of LLU, or when the
registration of the petitioning union has been cancelled with finality.
3. When the bargaining unit sought to be represented by the petitioning union is not an
appropriate BU.
4. When the petition in an organized establishment is not supported by the written
consent of 25% of the employees within the BU.
5. When there is a duly registered CBA.
6. When the petition was filed within 1 year from certification as BA.
7. (a) When the CBA negotiations are ongoing, or (b) a deadlock in the CBA negotiations
has been submitted to conciliation or arbitration or (c) had become the subject of a notice of
strike or lockout.
8. Failure of petitioner to appear for 2 consecutive scheduled conference before the
Mediator-Arbiter despite notice.

3. Intervention
LLU with substantial interest in the CE can intervene in the certification proceedings by
filing a motion for intervention.
In unorganized establishments, the motion for intervention can be filed any time prior
to the decision of the Med-Arbiter. In organized establishments, the motion for intervention
should be filed within the freedom period.
The incumbent CB agent is an automatic intervenor (forced intervenor) in a petition for
CE, hence, it is always one of the choices in a CE.

4. Suspension of Proceedings
The CE proceedings may be suspended if a participant-union has been charged with ULP
for being a company union. The CE should await the result of the ULP case.
Petition for Cancellation of Registration Not a Ground for Suspension - The pendency of
a petition for cancellation of union registration does not preclude collective bargaining, and
that an order to hold a certification election is proper despite the pendency of the petition for
cancellation of the union’s registration because at the time the respondent union filed its
petition, it still had the legal personality to perform such act absent an order cancelling its
registration. The legitimacy of the legal personality of respondent cannot be collaterally
attacked in a petition for certification election proceeding but only through a separate action
instituted particularly for the purpose of assailing it. The Implementing Rules stipulate that a
labor organization shall be deemed registered and vested with legal personality on the date of
issuance of its certificate of registration. Once a certificate of registration is issued to a union,
its legal personality cannot be subject to a collateral attack. It may be questioned only in an
independent petition for cancellation in accordance with Section 5 of Rule V, Book V of the
Implementing Rules. (Legend International Resorts Limited v. Kilusang Manggagawa ng
Legenda. G.R. No. 169754, February 23, 2011).

5. Preliminary Conference
If no motion to dismiss/suspend is filed or if the motion to dismiss/suspend is denied, a
PC will be conducted by the Med-Arbiter for the purpose of determining:
a. the bargaining unit to be represented;
b. the contending labor unions:
c. the possibility of consent election; and
If parties’ consents the Med-Arbiter will no longer resolve the merits of the petition and
will proceed to a pre-election conference to discuss the mechanics of the election. If not, Med-
Arbiter will resolve the merits of the petition by either dismissing it or directing the holding of a
CE.
d. other relevant matters.

6. Appeal from CE Orders

An order granting the conduct of CE is NOT appealable. Any issue arising therefrom may
be raised by means of protest on the conduct and results of the CE.
However, an order dismissing the petition is appealable to the SOL within 10 days from
receipt thereof. (Sec. 18, Rule VIII, Book V, IRR as amended by Department Order No. 40-F-03)
The decision of the SOL will become final and executor after 10 days from receipt
thereof by the parties. No MR of the decision shall be entertained.

The Conduct of Elections

1. Pre-election conference (date and time of lections, qualified voters, watchers, polling
places, inclusion-exclusion of voters to name a few)
2. Notice of Election (date and time of elections, names of contending unions,
description of bargaining unit, and list of eligible and challenged voters)
3. Posting of Notice of Election (mandatory) - 10 days before actual elections in 2
conspicuous places in the company premises.
4. Qualified voters - All employees covered by the appropriate BU who have been in
service for at least 3 months prior to the filing of the petition, whether union members or not,
are eligible to vote, regardless of their employment status.
5. Challenging of Votes – before the ballot is deposited in the ballot box, the authorized
representative of any of the contending unions can challenged a vote on the ground that the
voter: a. Is not an employee of the company:
b. has resigned or has been dismissed from service; or
 c. is not a member of the bargaining unit.
6. Handling of challenged votes – the election officer shall: place the ballot in an
envelope and sign and seal the same in the presence of the voter, employer, and the
representatives of the contending unions. Indicate on the envelope the voter’s name, the party
challenging the voter and the ground for the challenge. Record all the challenges in the minutes
of the election and consolidate all envelopes containing the challenged votes.
7. Opening of the sealed envelopes – The sealed envelopes will be opened ONLY when
the number of the segregated voters will materially alter the results of the election.
8. Election protest – only a party-in-interest can file a protest based on the conduct or
mechanics of the election. A LU which did not take part in the CE cannot protest.
9. Failure of elections – when the votes cast is less than the majority of the number of
eligible voters and there are no material challenged votes. If a failure of election is declared, a
motion for the immediate holding of a re-run election may be filed within 6 months from the
declaration of failure of lection.
10. Effect of tie votes – if the CE/Consent E/Run-off E results in a tie between
contending unions or between “no union” and one of the unions, a re-run election shall be
conducted within 10 days from posting of the Notice of Re-Run Election.

d) Run-off election – (automatic second election rule) is an election conducted when, (1) in a
CE with at least 3 choices, (2) none of the choices obtained a majority of the valid votes cast,
and (3) the total number of votes for all the contending unions is at least 50% of the total
number of votes cast (4) without challenged ballots which can materially alter the results.
Who can participate in a run-off election
Only the 2 LUs receiving the highest number of votes can participate in the run-off
election. “No Union” shall not be a choice in a run-off election. The same voters’ list used in the
CE shall be used in the run-off election.
*If the second highest number of votes is a tie between 2 or more unions, a re-run
election between the tied unions shall be conducted in order to determine which of the unions
can participate in the run-off election.

e) Re-run election – an election conducted to break a TIE (a) between 2 contending unions, (b)
between a “no-union” and 1 of the unions, or (c) a failure of election has been declared by the
elections officer and/or confirmed by the Med-Arbiter (Sec. 2, D.O. 40-1-15, Series of 2015)

11. Valid Election – The CE is valid when at least a majority of all eligible voters in the BU
were able to cast their votes.
A valid election will bar any union from filing a petition for CE within 1 year from the
holding of the election (Election Bar Rule)
The Med-Arbiter will proclaim the election results and certify the winning union as the
CB agent as long as there is no protest within 5 days from the close of the election proceedings
and no challenge or eligibility issue was raised, or if one was raised, the resolution of the same
will not materially alter the election results.

f) Consent election
If parties’ consents during the preliminary conference the Med-Arbiter will no longer resolve
the merits of the petition for CE and will proceed to a pre-election conference to discuss the
mechanics of the consent election. If not, Med-Arbiter will resolve the merits of the petition by
either dismissing it or directing the holding of a CE.

g) Affiliation and disaffiliation of the local union from the mother union
*What is the effect of affiliation?
A LU which affiliates with a federation/NU becomes subject to the rules and regulations of the
latter. The federation is the agent and the local union, the principal.
An independently registered union does not lose its independent legal personality when it
affiliates with a federation/NU. Appending the name of the federation to the local union’s name
does not mean that the federation absorbed the latter.

A local union may disaffiliate at any time from its mother federation, absent any showing that
the same is prohibited under its constitution or rules. Such disaffiliation, however, does not
result in it losing its legal personality. A local union does not owe its existence to the federation
with which it is affiliated. It is a separate and distinct voluntary association owing its creation to
the will of its members. The mere act of affiliation does not divest the local union of its own
personality, neither does it give the mother federation the license to act independently of the
local union. It only gives rise to a contract of agency where the former acts in representation of
the latter. In the present case, whether the FFW went against the will of its principal (the
member-employees) by pursuing the case despite the signing of the MOA, is not for the Court,
nor for respondent employer to determine, but for the Union and FFW to resolve on their own
pursuant to their principal-agent relationship. Moreover, the issue of disaffiliation is an intra-
union dispute which must be resolved in a different forum in an action at the instance of either
or both the FFW and the union or a rival labor organization, but not the employer as in this
case. (Cirtek Employees Labor Union-Federation of Free workers vs. Cirtek Electronics, Inc., G.R.
No. 190515. June 6, 2011).

It becomes mandatory for the BLR to check if the requirements under Art. 234 of the LC
have been sedulously complied with. If its application for registration is vitiated by falsification
and serious irregularities, especially those appearing on the face of the application and the
supporting documents, a LO should be denied recognition as a LLO. (Progressive Dev’t Corp.‐
Pizza Hut v. Laguesma. G.R. No. 115077, April 18, 1997).

This happens when there is a substantial shift in allegiance on the part of the majority of the
members of the union. In such a case, however, the CBA continues to bind the members of the
new or disaffiliated and independent union up to determine the union which shall administer
the CBA may be conducted. (ANGLO‐KMU v. Samahan ng Manggagawang Nagkakaisa sa Manila
Bay Spinning Mills at J.P. Coats G.R. No.118562, July 5, 1996).

Disaffiliation should be in accordance with the rules and procedures stated in the constitution
and by‐laws of the federation. A local union may disaffiliate with its mother federation provided
that there is no enforceable provision in the federation’s constitution preventing disaffiliation
of a local union. (Tropical Hut Ees Union v. Tropical Hut G.R. Nos. L‐43495‐99, Jan. 20, 1990).
Disaffiliation should always carry the will of the majority. It cannot be effected by a mere
minority group of union members. The obligation to check-off federation dues is terminated
with the valid disaffiliation of the local union from the federation with which it was previously
affiliated. Once a Local Chapter disaffiliates from the federation, it ceases to be entitled to the
rights and privileges granted to a legitimate labor organization. It cannot file a petition for
certification election. (Villar vs. Inciong. 121 SCRA 444, April 20, 1983).

The Supreme Court upheld the right of local unions to separate from their mother federation
on the ground that as separate and voluntary associations, local unions do not owe their
creation and existence to the national federation to which they are affiliated but, instead, to
the will of their members. The sole essence of affiliation is to increase, by collective action, the
common bargaining power of local unions for the effective enhancement and protection of
their interests. Admittedly, there are times when without succor and support local unions may
find it hard, unaided by other support groups, to secure justice for themselves. (Liberty Cotton
Mills Workers Union Vs. Liberty Cotton Mills, Inc. G.R. No. L-33987, September 4, 1975).

*What is a workers’ association?

Is any association of workers organized for the mutual aid and protection of its members or for
any legitimate purpose other than collective bargaining. Registration with the BLR makes it a
legitimate worker’s association.

*What is the distinction between a LO and a WA?

A LO is established principally for collective bargaining purposes, while a WA is organized for
mutual aid and protection of its members but not for collective bargaining purposes.

*What is meant by “cancellation proceedings” against LO or WA?

It refers to the legal process leading to the revocation of the legitimate status of a union/WA.
Subject to the requirements of notice and due process, the registration of any legitimate
independent labor union, local chapter and WA may be cancelled by the RD, or in the case of
federations, NU or industry and trade union centers, by the Bureau Director, upon the filing of
an independent complaint or petition for cancellation.
The cancellation of a certificate of registration is the equivalent of snuffing out the life of the
labor organization. For without such registration, it loses, as a rule, its rights under the LC. The
union is indisputably entitled to be heard before a judgement could be rendered cancelling its
certificate of registration.

*What are the grounds for cancellation of union registration?

1. Misrepresentation – “False statement or Fraud in” – Adoption/ratification of the union’s CBL
- List of members who took part
- Minutes ratification
2. Misrepresentation – “False statement or Fraud in” – Election of officers
- List of voters
 - Minutes of election
3. Voluntary Dissolution by the members

*What is the effect of cancellation during the pendency of a case?

In case cancellation of a union registration is made during the pendency of a case, the LO whose
registration is cancelled may still continue to be a party to the case without necessity for
substitution. Whatever decision, however, may be rendered therein shall only be binding on
those members of the union who have not signified their desire to withdraw from the case
before its trial and decision on the merits (Itogon-Suyoc Mines, Inc. V. Sangilo-Itogon Workers
Union, 24 SCRA 837)
The non-renewal of registration or permit does not result in the dismissal of a case pending
with the DOLE. The reason is that, at the time of the filing of the case, it has juridical personality
and the respondent court had validly acquired jurisdiction over the case.

*May registration of a LO be cancelled due to non-compliance with reportorial requirements?

NO. Art. 251(last par) of the LC – failure to comply with the above requirements shall not be a
ground for cancellation of union registration but shall subject the erring officers or members to
suspension, expulsion from membership, or any appropriate penalty.

(i) Substitutionary Doctrine

The Er cannot revoke the validly executed CB contract with their Er by the simple expedient of
changing their bargaining agent. The new agent must respect the contract. It cannot be invoked
to support the contention that a newly certified CB agent automatically assumes all the
personal undertakings of the former agent‐like the “no strike clause” in the CBA executed by
the latter. (Benguet Consolidated Inc. v. BCI Ees and Worker’s Union‐PAFLU. G.R. No. L‐24711,
April 1968).

(h) Union dues and special assessments

LLO have the right to collect from its members membership fees, union dues, and other
special assessments. This right is subject to the following limitations:
1. the imposition should be reasonable; (Art. 250(a), LC)
2. collective fees, dues or other contributions should be done by persons duly
authorized under the constitution and by-laws; (Art. 250(g), LC)
3. A receipt should be issued for every payment. (Art. 250(h), LC)

Requisites for valid levy of special assessment: (Art. 250(n), LC)

In order to be valid, the imposition of SA and extraordinary fees must comply with the following
requirements:
1. a general membership meeting must be called for the purpose;
2. majority of all the union members must adopt a written resolution approving the levy
of SA;
3. the minutes of the meeting should be recorded by the union secretary and attested
by the union president; and
4. the minutes must contain the:
 a. list of all members present;
b. votes cast;
c. purpose of the SA; and
d. recipient of the assessment or fees.

(i) Requirements for validity

*NOTE: Strict compliance with the prescribed requirements is required. Failure to strictly
comply with the prescribed requirements will invalidate the SA. Substantial compliance will
suffice, considering that the SA will diminish the compensation of the union members.
Therefore:
1. a SA obtained in a local membership meeting is null and void bec. the law requires a
general membership meeting;
2. a SA based on a written resolution of majority of the union members present during
the meeting is null and void bec. the law requires approval by majority of all the union
members;
3. a SA based merely on the minutes of the meeting is null and void, bec. the law
requires a written resolution by union members; (Palacol v. Ferrer-Calleja, 182 SCRA 710)
4. a SA based on a resolution of the board of directors of the LO is likewise null and void
bec. the law requires a resolution by the majority of all the union members. ( Stellar Insurance
Services v. NLRC, 252 SCRA 323)

Check-Off of fees and assessments

It is the process whereby the employer, on agreement with the CB agent and on prior
authorization from the employees, deducts union dues or assessments from the latter’s wages
and remits them directly to the union. (Holy Cross of Davao College v. Joaquin, 263 SCRA 358)
In order to be valid, the check-off of SA and other extraordinary fee must be:
1. supported by an individual written authorization;
2. duly signed by the employee, and
3. specific as to amount, purpose and beneficiary of the deduction. (Art. 250(o), LC)
*NOTE: The right of an incumbent CB agent to check-off union dues and agency fees subsists
during the pendency of a petition for CE and even during the pendency of intra-union or inter-
union disputes and other related labor relations disputes.

When individual check-off authorization is not required

1. Agency fees from non-union members who accept the benefits under the CBA (Art.
259(e), LC)
2. Reasonable fees to finance mandatory activities under the LC. (Art. 250(o), LC) ex.
labor relations seminar and labor education activities

Withdrawal of check-off authorization (withdrawal may be done collectively even thought the
authorization is individual in nature)

*NOTE: Right of union members to request for examination of the Books of Accounts of the
union (Art. 250(b) and (l), LC)
*NOTE: An action for examination or audit of union funds prescribes after 3 years reckoned
from whichever comes first of the following dates:
1. the date of the submission of the annual financial report to the DOLE RO; or
2. the date when the annual financial report should have been submitted as required by
law.

B. Right to collective bargaining

Jurisdictional preconditions in collective bargaining 1. Possession of the status of majority
representation of the employees representative in accordance with any of the means of
selection or designation provided for the Labor Code 2. Proof of majority representation 3. A
demand to bargain under Art. 250 (a) of the LC. (Kiok Loy v. NLRC. G.R. No. L‐ 54334, Jan. 22,
1986)

1. Duty to bargain collectively

a. When there is absence of a CBA
To meet and convene promptly in good faith for the purpose of negotiating a CBA. It
does not compel any party to agree.

b. When there is a CBA

Neither party shall terminate nor modify the CBA. To keep the status quo, to continue in
full force all the CBA terms until a new CBA is signed.

Procedure in CB
1. written notice of intent, with written proposals;
2. written reply within 10 calendar days;
3. Conference within 10 calendar days from receipt of the request;
4. NCMB to intervene through conciliation;
5. Settle the dispute or have it submitted to voluntary arbitration
Other options:
a. notice of strike/lockout
b. compulsory arbitration

Where there is a legitimate representation issue, there is no duty to bargain collectively on the
part of the Employer. (Lakas ng mga Manggagawang Makabayan v. Marcelo Enterprises. G.R.
No. L‐38258, Nov. 19, 1982).

There is no perfect test of good faith in bargaining. The GF or BF is an inference to be drawn

from the facts and is largely a matter for the NLRC’s expertise. The charge of BF should be
raised while the bargaining is in progress. With the execution of the CBA, BF can no longer be
imputed upon any of the parties thereto. All provisions in the CBA are supposed to have been
jointly and voluntarily incorporated therein by the parties. This is not a case where private
respondent exhibited an indifferent attitude towards CB because the negotiations were not the
unilateral activity of petitioner union. The CBA is good enough that private respondent exerted
“reasonable effort of GF bargaining. (Samahang Manggagawa sa Top Form Manufacturing‐
United Workers of the Phils v. NLRC. G.R. No. 113856, Sept. 7, 1998).

This is no different from a bargaining representative’s perseverance to include one that they
deem of absolute necessity. Indeed, an adamant insistence on a bargaining position to the
point where the negotiations reach an impasse does not establish bad faith. Obviously, the
purpose of CB is the reaching of an agreement resulting in a contract binding on the parties; but
the failure to reach an agreement after negotiations have continued for a reasonable
period does not establish a lack of good faith. The statutes invite and contemplate a
collective bargaining contract, but they do not compel one. The duty to bargain does not
include the obligation to reach an agreement. While the law makes it an obligation for
the Er and the Ees to bargain collectively with each other, such compulsion does not include the
commitment to precipitately accept or agree to the proposals of the other. All it contemplates
is that both parties should approach the negotiation with an open mind and make reasonable
effort to reach a common ground of agreement. (Union of Filipro Ees v. Nestle Phils. G.R. Nos.
158930‐31, Mar. 3, 2008).

2. Collective Bargaining Agreement (CBA). (Law of the Plant)

What is a CBA?
Refers to the negotiated contract between a LLO and the employer concerning wages,
hours of work and all other terms and conditions of employment in a bargaining unit. The CBA
is deemed the law between the parties during its lifetime. Its provisions are construed liberally.

Characteristics of CB
1. Continuing legal relationship
2. Process of adjustment
3. Contract of reasonable benefits
4. Contract of relative equality
5. Agency of participatory democracy

What are the legal principles applicable to a CBA?

1. Proposal not embodied in the CBA is not a part thereof;
2. Minutes of the CBA negotiations – no effect if its contents are not incorporated in the CBA;
3. Making a promise during the CBA negotiations is not considered bad faith.
4. Adamant stance resulting in impasse is not bad faith;
5. The SOL cannot order the inclusion of terms and conditions in the CBA which the law and the
parties did not intend to reflect therein;
6. Signing bonus, not demandable under the law; and
7. Allegations of bad faith, wiped out with signing of the CBA.

As regular employees, petitioners fall within the coverage of the bargaining unit and are
therefore entitled to CBA benefits as a matter of law and contract. Under the terms of the CBA,
petitioners are members of the appropriate bargaining unit because they are regular rank-and-
file employees and do not belong to any of the excluded categories. Most importantly, the
labor arbiter’s decision of January 17, 2002 – affirmed all the way to the CA – ruled against the
company’s submission that they are independent contractors.

Thus, as regular rank-and-file employees, they fall within the CBA coverage. And, under the
CBA’s express terms, they are entitled to its benefits. CBA coverage is not only a question of
fact, but of law and contract. The factual issue is whether the petitioners are regular rank-and-
file employees of the company. The tribunals below uniformly answered this question in the
affirmative. From this factual finding flows legal effects touching on the terms and conditions of
the petitioners’ regular employment. (Farley Fulache, et al. vs. ABS-CBN Broadcasting
Corporation. G.R. No. 183810, January 21, 2010).

The certification of the CBA by the BLR is not required to make such contract valid. Once it is
duly entered into and signed by the parties, a CBA becomes effective as between the parties
whether or not it has been certified by the BLR. (Liberty Flour Mills Ee’s Association v. Liberty
Flour Mills. G.R. Nos. 58768‐70, Dec. 29, 1989).

A CBA is not an ordinary contract but one impressed with public interest, only provisions
embodied in the CBA should be so interpreted and complied with. Where a proposal raised
by a contracting party does not find print in the CBA, it is not a part thereof and the proponent
has no claim whatsoever to its implementation. (SMTFM‐UWP v. NLRC. G.R. No. 113856,
Sept. 7, 1998).

A pending cancellation proceeding is not a bar to set mechanics for collective bargaining (CB). If
a certification election may still be held even if a petition for cancellation of a union’s
registration is pending, more so that the CB process may proceed. The majority status of the
union is not affected by the cancellation proceedings. (Capitol Medical Center v. Trajano. G.R.
No. 155690, June 30, 2005).

Although a CBA has expired, it continues to have legal effects as between the parties until a
new CBA has been entered into. (Pier & Arrastre Stevedoring Services, Inc. v. Confessor. G.R.
No. 110854, February 13, 1995).

Parts of a CBA
1. Preamble or the Introduction
2.Recognition of the majority status of the contracting union and its right to exclusively
represent the members of the CBU
3. Management Prerogative
4. Union prerogative – the right of the union to discipline its members
5. Scale of wages – provisions intended to prevent discrimination in the ayment of different
types of worker and to avoid wage distortion
6. Promotion of employees
7. Leave of absence – provisions for leave benefits lick sick, maternity and the like
8. Union Security Clause – stipulations whereby the employer undertakes to recognize the right
of the union who negotiated the CBA to maintain and protect its members by imposing certain
terms and conditions in hiring employees and retention of employment
9. Grievance machinery and voluntary arbitration (Conclusive arbitration caluse)
10. Check-off
11. No-strike, no-lockout clause
12. Escalator Clause – is an agreement which provides that wages shall gradually increase in the
event of sudden increase of consumer price or cost-of-living index
13. Family planning
14. Drug-free provision
15. Labor education
16. Effectivity clause
17. Interpretation clause

What are the mandatory subjects of bargaining?

1. wages and other types of compensation, including merit increase;
2. working hours and working days, including work shifts;
3. vacation and holidays;
4. bonuses;
5. pensions and retirement plan;
6. seniority;
7. transfer;
8. lay-offs;
9. employee workload;
10. work rules and regulations;
11. rent of company houses; and
12. union security arrangements.

Stages in CB
1. Preliminary – sending of a written notice to bargain;
2. Negotiation – stage when parties provide proposals and counter proposals (legislative phase)
3. Execution – signing of the agreement
4. Publication – posting of the agreement (2 copies of the signed CBA shall be posted for at least
5 days prior to the day of ratification in 2 conspicuous areas in each workplace of the employer
units concerned)
5. Ratification – by the majority of all the workers in the bargaining unit represented in the
negotiation. Said CBA shall effect only those employees in the BU who ratified it.
6. Registration – the CBA shall be registered with the DOLE RO
7. Administration – the implementation of the CBA provisions which shall be jointly
administered by the management and the bargaining agent for a period of 5 years. ( executive
phase)
8. Interpretation and Application – in case of ambiguity in the interpretation, it shall be
construed in favour of labor (judicial phase)
a. Mandatory provisions of CBA
i. Grievance procedure
CBA is the law or contract between the parties. Article 13.1 of the CBA entered into by and
between respondent GCI and AMOSUP provides that the Company and the Union agree that in
case of dispute or conflict in the interpretation or application of any of the provisions of this
Agreement, or enforcement of Company policies, the same shall be settled through negotiation,
conciliation or voluntary arbitration. (Dulay vs. Aboitiz Jebsen Maritime, Inc. and General
Charterers, Inc. G.R. No. 172642, June 13, 2012)

ii. Voluntary arbitration

Article 217 of the Labor Code states that unfair labor practices and termination disputes fall
within the original and exclusive jurisdiction of the Labor Arbiter. As an exception, under Article
262 the Voluntary Arbitrator, upon agreement of the parties, shall also hear and decide all
other labor disputes including unfair labor practices and bargaining deadlocks. For the
exception to apply, there must be agreement between the parties clearly conferring jurisdiction
to the voluntary arbitrator. Such agreement may be stipulated in a collective bargaining
agreement. However, in the absence of a collective bargaining agreement, it is enough that
there is evidence on record showing the parties have agreed to resort to voluntary arbitration.
(The University of the Immaculate Conception, et al. vs. NLRC, et al., G.R. No. 181146, January
26, 2011).

Under voluntary arbitration, on the other hand, referral of a dispute by the parties is
made, pursuant to a voluntary arbitration clause in their collective agreement, to an impartial
third person for a final and binding resolution. Ideally, arbitration awards are supposed to
be complied with by both parties without delay, such that once an award has been rendered by
an arbitrator, nothing is left to be done by both parties but to comply with the same. After all,
they are presumed to have freely chosen arbitration as the mode of settlement for that
particular dispute. Pursuant thereto, they have chosen a mutually acceptable arbitrator who
shall hear and decide their case. Above all, they have mutually agreed to be bound by said
arbitrator's decision. (Luzon Dev’t Bank v. Ass’n of Luzon Dev’t Bank Ees G.R. No. 120319, Oct.
6, 1995).

iii. No strike-no lockout clause

The “no strike‐no lockout” clause in the CBA applies only to economic strikes. It does not apply
to ULP strikes. Hence, if the strike is founded on an unfair labor practice of the employer, a
strike declared by the union cannot be considered a violation of the no strike clause. (Master
Iron Labor Union v. NLRC. G.R. No. 92009, Feb. 17, 1993).
Note (Poquiz): A strike can be waived under this clause

b. Labor Management Council

To effect the right of workers to participate in policy and decision-making processes,
workers and employers may form LMC. The representatives of the workers shall be elected by
at least the majority of all employees in said establishment.
c. Duration
Article 253 of the Labor Code mandates the parties to keep the status quo and to continue in
full force and effect the terms and conditions of the existing agreement during the 60-day
period prior to the expiration of the old CBA and/or until a new agreement is reached by the
parties. The law does not provide for any exception nor qualification on which economic
provisions of the existing agreement are to retain its force and effect. Likewise, the law does
not distinguish between a CBA duly agreed upon by the parties and an imposed CBA. The
provisions of the imposed CBA continues to have full force and effect until a new CBA is entered
into by the parties. (General Milling Corporation Independent Labor Union [GMC-ILU] vs.
General Milling Corporation G.R. Nos. 183122/183889, June 15, 2011).

While the parties may agree to extend the CBA’s original five-year term together with all other
CBA provisions, any such amendment or term in excess of five years will not carry with it a
change in the union’s exclusive collective bargaining status. By express provision of the above-
quoted Article 253-A, the exclusive bargaining status cannot go beyond five years and the
representation status is a legal matter not for the workplace parties to agree upon. In other
words, despite an agreement for a CBA with a life of more than five years, either as an original
provision or by amendment, the bargaining union’s exclusive bargaining status is effective only
for five years and can be challenged within sixty (60) days prior to the expiration of the CBA’s
first five years. (FVC Labor Union-Philippine Transport and General Workers Organization
(FVCLU-PTGWO) Vs. Sama-samang Nagkakaisang Manggagawa sa FVC-Solidarity of
Independent and General Labor Organization (SANAMA-FVC-SIGLO. G.R. No. 176249,
November 27, 2009)

Under the principle of hold over, until a new CBA has been executed by and between the
parties, they are duty bound to keep the status quo and must continue in full force and effect
the terms and conditions of the existing agreement. The law does not provide for any
exception or qualification as to which of the economic provisions of the existing agreement
are to retain force and effect. Therefore, it must be encompassing all the terms and
condition in the said agreement. (New Pacific Timber v. NLRC. G.R. No. 124224, Mar. 17, 2000).
The signing of the CBA does not determine whether the agreement was entered into within the
6 month period from the date of expiration of the old CBA. In the present case, there was
already a meeting of the minds between the company and the union prior to the end of the 6
month period after the expiration of the old CBA. Hence, such meeting of the mind is sufficient
to conclude that an agreement has been reached within the 6 month period as provided
under Art. 253‐A of the LC. (Mindanao Terminal and Brokerage Services Inc., v. Confessor.
G.R. No. 111809, May 5, 1997).

The CBA arbitral awards granted 6 months from the expiration of the last CBA shall retroact to
such time agreed upon by both the Er and the union. Absent such agreement as to
retroactivity, the award shall retroact to the 1st day after the 6 month period following the
expiration of the last day of the CBA should there be one. In the absence of a CBA, the SLE’s
determination of the date of retroactivity as part of his discretionary powers over arbitral
award shall control. (Manila Electric Company v. Quisumbing. G.R. No. 127598, Feb. 22 and
Aug. 1, 2000).

There is no conflict between the agreement and Art. 253‐A of the LC for the latter has a 2‐fold
purpose namely: a) to promote industrial stability and predictability and b) to assign specific
time tables wherein negotiations become a matter of right and requirement. In so far as
the first purpose, the agreement satisfies the first purpose. As regard the second purpose,
nothing in Art. 253‐A prohibits the parties from waiving or suspending the mandatory
timetables and agreeing on the remedies to enforce the same. For under the said article, the
representation limit of the exclusive bargaining agent applies only when there is an existing
CBA in full force and effect. In this case, the parties agreed to suspend the CBA and put in
abeyance the limit on representation. (Rivera v. Espiritu. G.R. No. 135547, Jan. 23, 2002).

3. Union Security
Union security clauses; closed shop, union shop, maintenance of membership shop, etc.
Agency shop is a form of union security clause. It is an arrangement whereby non-members of
the contracting union must pay the union a sum equal to union dues known as “agency fees”
for the benefits they received as a consequence of the bargaining negotiations effected through
the efforts of the union. (Anti-hitchhiker or free-rider clause)

Closed-shop is a form of union security. A closed-shop may be defined as an enterprise in

which, by agreement between the employer and his employees or their representatives, no
person may be employed in any or certain agreed departments of the enterprise unless he or
she is, becomes, and, for the duration of the agreement, remains a member in good standing of
a union entirely comprised of or of which the employees in interest are a part.

Union shop – workers under this agreement are not required to be union members when hires;
but to maintain continued employment, they must continue to pay union dues and must
become union members also after sometime. This clause requires new employees must join the
CB agent in the company premises within a specified period of time.

Maintenance of membership – non-members are not required to join the union, but those who
do join must maintain their membership for the duration of the union contract under penalty of
discharge.

What is indubitable from the Union Shop Clause is that upon the effectivity of the CBA,
petitioner’s new regular employees (regardless of the manner by which they became
employees of BPI) are required to join the Union as a condition of their continued employment.
(Bank of the Philippine Islands vs. BPI Employees Union-Davao Chapter G.R. No. 164301.
October 19, 2011).

In terminating the employment of an employee by enforcing the union security clause, the
employer needs to determine and prove that: (1) the union security clause is applicable; (2) the
union is requesting for the enforcement of the union security provision in the CBA; and (3)
there is sufficient evidence to support the decision of the union to expel the employee from the
union. These requisites constitute just cause for terminating an employee based on the union
security provision of the CBA. (Picop Resources Incorporated (PRI) vs. Anacleto L. Tañeca, et al.,
G.R. No. 160828, August 9, 2010).

GMC completely missed the point that the expulsion of Casio, et al. by the union and the
termination of employment of the same employees by GMC, although related, are two
separate and distinct acts. Despite a closed shop provision in the CBA, law and jurisprudence
impose upon GMC the obligation to accord Casio, et al. substantive and procedural due process
before complying with the union’s demand to dismiss the expelled union members from
service. The failure of GMC to carry out this obligation makes it liable for illegal dismissal of
Casio, et al. (General Milling Corporation vs. Ernesto Casio, et al. and Virgilio Pino, et al., G.R.
No. 149552, March 10, 2010).

While it is true that the withdrawal of support may be considered as a resignation from the
union, the fact remains that at the time of the union’s application for registration, the affiants
were members of the union and they comprised more than the required 20% membership for
purposes of registration as a labor union. Article 234 of the Labor Code merely requires a 20%
minimum membership during the application for union registration. It does not mandate that a
union must maintain the 20% minimum membership requirement all throughout its existence.
(Mariwasa Siam Ceramics, Inc. vs. The Secretary of the Department of Labor and Employment,
et al., G.R. No. 183317, December 21, 2009).

Article 222(b) of the Labor Code, as amended, prohibits the payment of attorney’s fees only
when it is effected through forced contributions from the employees from their own funds as
distinguished from union funds. Hence, the general rule is that attorney’s fees, negotiation fees,
and other similar charges may only be collected from union funds, not from the amounts that
pertain to individual union members. As an exception to the general rule, special assessments
or other extraordinary fees may be levied upon or checked off from any amount due an
employee for as long as there is proper authorization by the employee. A check-off is a process
or device whereby the employer, on agreement with the Union, recognized as the proper
bargaining representative, or on prior authorization from the employees, deducts union dues or
agency fees from the latter’s wages and remits them directly to the Union. Its desirability in a
labor organization is quite evident. The Union is assured thereby of continuous funding. The
system of check-off is primarily for the benefit of the Union and, only indirectly, for the
individual employees. These requisites are: (1) an authorization by a written resolution of the
majority of all the union members at the general membership meeting duly called for the
purpose; (2) secretary’s record of the minutes of the meeting; and (3) individual written
authorization for check-off duly signed by the employee concerned. (Eduardo J. Mariño, Jr. et
al. vs. Gil Y. Gamilla, et al.. G.R. No. 149763, July 7, 2009).

A shop steward leads to the conclusion that it is a position within the union, and not within the
company. A shop steward is appointed by the union in a shop, department, or plant and serves
as representative of the union, charged with negotiating and adjustment of grievances of
employees with the supervisor of the employer. He is the representative of the union members
in a building or other workplace. Black’s Law Dictionary defines a shop steward as a union
official elected to represent members in a plant or particular department. His duties include
collection of dues, recruitment of new members and initial negotiations for the settlement of
grievances. A judgment of reinstatement of the petitioner to the position of union Shop
Steward would have no practical legal effect since it cannot be enforced. Based on the
requirements imposed by law and the APCWU-ATI CBA, and in the nature of things, the
subsequent separation of the petitioner from employment with respondent ATI has made his
reinstatement to union Shop Steward incapable of being enforced. (Teodoro S. Miranda, Jr. vs.
Asian Terminals, Inc. and Court of Appeals, G.R. No. 174316, June 23, 2009).

“Union security” is a generic term, which is applied to and comprehends “closed shop,” “union
shop,” “maintenance of membership” or any other form of agreement which imposes upon
employees the obligation to acquire or retain union membership as a condition affecting
employment. There is union shop when all new regular employees are required to join the
union within a certain period as a condition for their continued employment. There is
maintenance of membership shop when employees, who are union members as of the effective
date of the agreement, or who thereafter become members, must maintain union membership
as a condition for continued employment until they are promoted or transferred out of the
bargaining unit or the agreement is terminated. A closed-shop, on the other hand, may be
defined as an enterprise in which, by agreement between the employer and his employees or
their representatives, no person may be employed in any or certain agreed departments of the
enterprise unless he or she is, becomes, and, for the duration of the agreement, remains a
member in good standing of a union entirely comprised of or of which the employees in
interest are a part.

In terminating the employment of an employee by enforcing the Union Security Clause, the
employer needs only to determine and prove that:
(1) the union security clause is applicable;
(2) the union is requesting for the enforcement of the union security provision in the CBA; and
(3) there is sufficient evidence to support the union’s decision to expel the employee from the
union or company. (Herminigildo Inguillom, et al. vs. First Philippine Scales, Inc., et al. G.R. No.
165407, June 5, 2009)

4. Unfair Labor Practice in collective bargaining

a. Bargaining in bad faith
The act of the employer in refusing to comply with the terms and conditions of a CBA
constitutes bargaining in bad faith and is considered an unfair labor practice. (Oceanic
Pharmacal Employees Union vs. Inciong. G. R. No. L-50568, Nov. 7, 1979).

b. Refusal to bargain
The procedure in collective bargaining prescribed by the LC is mandatory bec. of the basic
interest of the State in ensuring lasting industrial peace. Thus, the employer’s failure to make a
timely reply to the proposals presented by the union within 10 calendar days is indicative of its
utter lack of interest in bargaining with the union. Its refusal to amke a counter-proposal for
CBA negotiation is an indication of its bad faith and it is a clear evasion of the duty to bargain
collectively which is ULP.
For failure to submit any counter proposal to the CBA proposed by its employees’ certified
bargaining agent, the employer had thereby lost its right to bargain the terms and conditions of
the CBA. Thus, the CBA proposed by its employees’ union – lock, stock and barrel is imposed
upon an erring employer (General Milling Corp. v.CA, G.R. No. 146728, February 11, 2004)

c. Blue sky bargaining

Whether or not the union is engaged in blue‐sky bargaining is determined by the evidence
presented by the union as to its economic demands. Thus, if the union requires exaggerated or
unreasonable economic demands, then it is guilty of ULP. In order to be considered as unfair
labor practice, there must be proof that the demands made by the union were exaggerated or
unreasonable. In the minutes of the meeting show that the union based its economic proposals
on data of rank-and-file employees and the prevailing economic benefits received by bank
employees from other foreign banks doing business in the Philippines and other branches of
the bank in the Asian region. Hence, it cannot be said that the union was guilty of ULP for blue-
sky bargaining. (Standard Chartered Bank v. Confessor. G.R. No. 114974, June 16, 2004).

d. Surface bargaining
Surface bargaining” is defined as “going through the motions of negotiating” without any legal
intent to reach an agreement. The resolution of surface bargaining allegations never presents
an easy issue. The determination of whether a party has engaged in unlawful surface bargaining
is usually a difficult one because it involves, at bottom, a question of the intent of the party in
question, and usually such intent can only be inferred from the totality of the challenged party’s
conduct both at and away from the bargaining table. Whether an employer’s conduct
demonstrates an unwillingness to bargain in good faith or is merely hard bargaining. There can
be no surface bargaining, absent any evidence that management had done acts, both at and
away from the bargaining table, which tend to show that it did not want to reach an agreement
with the union or to settle the differences between it and the union. Here, admittedly, the
parties were not able to agree and reached a deadlock. However, it must be emphasized that
the duty to bargain “does not compel either party to agree to a proposal or require the making
of a concession.” Hence, the parties’ failure to agree does not amount to ULP under Article 248
[g] for violation of the duty to bargain. (Standard Chartered Bank Employees Union [NUBE] vs.
Confesor. G. R. No. 114974, June 16, 2004).

e. Unfair Labor Practice (ULP)

1. Nature of ULP
Anent the charge of unfair labor practice, Article 248 (a) of the Labor Code considers it an unfair
labor practice when an employer interferes, restrains or coerces employees in the exercise of
their right to self-organization or the right to form an association. In order to show that the
employer committed unfair labor practice under the Labor Code, substantial evidence is
required to support the claim. Substantial evidence has been defined as such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion. In the case at bar,
respondents were indeed unceremoniously dismissed from work by reason of their intent to
form and organize a union. (Park Hotel, et al. vs. Manolo Soriano, et al. G.R. No. 171118.
September 10, 2012).

Unfair labor practice refers to acts that violate the workers’ right to organize. The prohibited
acts are related to the workers’ right to self-organization and to the observance of a CBA. Thus,
an employer may be held liable for unfair labor practice only if it can be shown that his acts
interfere with his employees’ right to self-organization. Since there is no showing that the
respondent company’s implementation of the Right-Sizing Program was motivated by ill will,
bad faith or malice, or that it was aimed at interfering with its employees’ right to self-
organization, there is no unfair labor practice to speak of in this case. (Nelson A. Culili v. Eastern
Telecommunications Philippines, Inc., et al. G.R. No. 165381, February 9, 2011).

Unfair labor practice refers to “acts that violate the workers’ right to organize.” The prohibited
acts are related to the workers’ right to self-organization and to the observance of a CBA.
Without that element, the acts, even if unfair, are not unfair labor practices. (General Santos
Coca Cola Plant Free Workers Union-Tupas vs. COCA-COLA BOTTLERS PHILS., INC. G.R. No.
178647. Feb. 13, 2007).

2. ULP of employers
a. Interference (it covers both restraint and coercion) – direct or indirect
b. Restraint or coercion (Economic coercion – wage increase, granting of bonuses, lay-
offs, isolation of union president)
c. Prohibition against membership in a union (yellow0dog contract) implieas that any
person who signed such contract was a cowardly dog bec. he had abandoned his guaranteed
rights to self-organization under the Constitution. He becomes subservient, like a dog.
d. Company or captive unionism
e. Contracting out of services being performed by union members
f. Acts of discrimination (dismissal or lay-off, closure or shutdown, rehiring, transfer,
retrenchment
g. Refusal to bargain
h. Gross violation of a CBA
i. Dismissal for giving testimony
j. Union security clauses
For a charge of unfair labor practice to prosper, it must be shown that respondent CAB’s
suspension of negotiation with CABEU-NFL and its act of concluding a CBA with CABELA,
another union in the bargaining unit, were motivated by ill will, “bad faith, or fraud, or was
oppressive to labor, or done in a manner contrary to morals, good customs, or public policy…”
However, the facts show that CAB believed that CABEU-NFL was no longer the representative of
the workers. It just wanted to foster industrial peace by bowing to the wishes of the
overwhelming majority of its rank and file workers and by negotiating and concluding in good
faith a CBA with CABELA.” Such actions of CAB are nowhere tantamount to anti-unionism, the
evil sought to be punished in cases of unfair labor practices. (Central Azucarera De Bais
Employees Union-NFL, represented by its President, Pablito Saguran vs. Central Azucarera De
Bais, Inc. G.R. No. 186605, November 17, 2010).

Unfair labor practice cannot be imputed to MMC since the call of MMC for a suspension of the
CBA negotiations cannot be equated to “refusal to bargain.” Article 252 of the Labor Code
defines the phrase “duty to bargain collectively.” For a charge of unfair labor practice to
prosper, it must be shown that the employer was motivated by ill-will, bad faith or fraud, or
was oppressive to labor. The employer must have acted in a manner contrary to morals, good
customs, or public policy causing social humiliation, wounded feelings or grave anxiety. It
cannot be said that MMC deliberately avoided the negotiation. It merely sought a suspension
and even expressed its willingness to negotiate once the mining operations resume. There was
valid reliance on the suspension of mining operations for the suspension of the CBA
negotiation. The Union failed to prove bad faith. (Manila Mining Corp. Employees Association,
et al. vs.. Manila Mining corp, et al.,G.R. Nos. 178222-23, September 29, 2010).

We found it proper to award moral and exemplary damages to illegally dismissed employees as
their dismissal was tainted with unfair labor practice. The Court said: Unfair labor practices
violate the constitutional rights of workers and employees to selforganization, are inimical to
the legitimate interests of both labor and management, including their right to bargain
collectively and otherwise deal with each other in an atmosphere of freedom and mutual
respect; and disrupt industrial peace and hinder the promotion of healthy and stable labor-
management relations. As the conscience of the government, it is the Court’s sworn duty to
ensure that none trifles with labor rights. (Geronimo Q. Quadra vs. Court of Appeals G.R. No.
147593, July 31, 2006).

To constitute ULP, however, violations of the CBA must be gross. Gross violation of the CBA,
under Article 261 of the Labor Code, means flagrant and/or malicious refusal to comply with
the economic provisions thereof. Evidently, the University can not be faulted for ULP as it in
good faith merely heeded the above-said request of Union members. (Arellano University
Employees and Workers Union vs Court of Appeals, G.R. No. 139940, September 19, 2006).

Direct evidence that an Ee was in fact intended or coerced by the statements of threats of the
Er is not necessary if there is a reasonable interference that the anti‐union conduct of the Er
does have an adverse effect on self‐organization and CB. (The Insular Life Assurance‐NATU v.
The Insular Life Co. Ltd. G.R. No.L‐25291, Jan. 30, 1971).

A company’s refusal to make counter‐proposal, if considered in relation to the entire bargaining

process, may indicate BF and this is especially true where the union’s request for a counter
proposal is left unanswered. (Kiok Loy v. NLRC. G.R. No. L‐54334, Jan. 22, 1986).

ALU is the certified exclusive bargaining representative after winning the certification election.
The company merely relied on the letter of disaffiliation by BFEA’s president without proof and
consequently refusing to bargain collectively constitutes ULP. Such refusal by the company to
bargain collectively with the certified exclusive bargaining representative is a violation of its
duty to collectively bargain which constitutes ULP. (Balmar Farms v. NLRC. G.R. No.73504, Oct.
15, 1991)

(a) ULP of labor organizations

a. Restraint or coercion of employees
b. Featherbedding activities (make-work activities)
c. Discrimination against employees
d. Violation of duty to bargain collectively
e. Payment of negotiation or attorney’s fees
f. Gross violation of the CBA
g. Engaging in blue-sky bargaining, an ULP
A union member may not be expelled from the union, and consequently from his job, for
personal and impetuous reasons or for causes foreign to the closed shop agreement.
(Manila Mandarin Ees Union v. NLRC. G.R. No. 76989, Sep. 29, 1987 ).

Labor unions are not entitled to arbitrarily exclude qualified applicants for membership and a
closed‐ shop applicants provision will not justify the employer in discharging, or a union in
insisting upon the discharge of an employee whom the union thus refuses to admit to
membership without any reasonable ground thereof. (Salunga v. CIR. G.R. No. L‐22456, Sep.
27, 1967).

Note (Poquiz): ULP's committed in the absence of employer-employee relationship:

a) Agents of the employer or union who are non-employees may commit ULP
b) In the case of yellow-dog contract, where ULP is committed by the employer against an
applicant to the job, and
c) In case of the application of the doctrine of innocent by-stander

1. Forms of concerted activities

WHAT IS STRIKE, PICKETING AND LOCKOUT?      
1.             STRIKE – means any temporary stoppage of work by the concerted action of the
employees as a result of an industrial or labor dispute.  (Art. 212 (o), Labor Code, as amended
by Sec. 4, R. A. 6715)
 
2.             PEACEFUL PICKETING – the right of workers during strikes consisting of the marching
to and fro before the premises of an establishment involved in a labor dispute, generally
accompanied by the carrying and display of signs, placards or banners with statements relating
to the dispute. (Guidelines Governing Labor Relations, October 19, 1987)
 
3.             LOCKOUT – means the temporary refusal of an employer to furnish work as a result of
an industrial or labor dispute.  (Article 212 (p) Labor Code, as amended by Section 4, R.A. 6715).
 
WHAT ARE THE DIFFERENT FORMS OF STRIKES?
1.   LEGAL STRIKE – one called for a valid purpose and conducted through means allowed  by
law. 
2.    ILLEGAL STRIKE – one staged for a purpose not recognized by law, or if for a valid purpose,
conducted through means not sanctioned by law. 
3.    ECONOMIC STRIKE – one staged by workers to force wage or other economic concessions
from the employer which he is not required by law to grant (Consolidated Labor Association of
the Phil. vs.  Marsman and Company,  11 SCRA 589) 
4.    ULP STRIKE – one called to protest against the employer’s acts of unfair labor practice
enumerated in Article 248 of the Labor Code, as amended, including gross violation of the
collective bargaining agreement (CBA)  and union busting. 
5.     SLOWDOWN STRIKE – one staged without the workers quitting their work but merely
slackening or by reducing their normal work output. 
6.     WILD-CAT STRIKE – one declared and staged without filing the required notice of strike and
without the majority approval of the recognized bargaining agent. 
7.     SIT DOWN STRIKE – one where the workers stop working but do not leave their place of
work.
     
WHAT IS AN INDUSTRIAL DISPUTE?                                                   
A.        An industrial or labor dispute includes any controversy or matter concerning terms or
conditions of employment or the association or representation of persons in negotiating, fixing,
maintaining, changing or arranging the terms and conditions of employment regardless of
whether the disputants stand in the proximate relation of  employer and employee.  (Article
212 (1) Labor Code, as amended by Section 4, R.A. 6715)  
 
WHAT IS THE NATURE OF THE RIGHT TO STRIKE AND LOCKOUT?                                  
The right to strike is a constitutional and legal right of the workers as the employers have the
inherent and statutory right to lockout, all within the context of labor relations and collective
bargaining.  It is a means of last resort and presupposes that the duty to bargain in good
faith    has    been   fulfilled   and   other   voluntary  modes of  dispute settlement have been
tried and exhausted.  (Guidelines Governing Labor Relations).  
                       
2. Who may declare a strike or lockout? 
Any certified or duly recognized bargaining representative may declare a strike in cases of
bargaining deadlock and unfair labor practice.  Likewise, the employer may declare  a lockout in
the same cases. 
In the absence of a certified or duly recognized bargaining representative, any legitimate labor
organization in the establishment may declare a strike but only on the  ground of unfair labor
practice. (Section 2, Rule XIII, Book V, Omnibus Rules Implementing The Labor Code, as
amended).
 
3. Requisites for a valid strike/lockout            
A.        The requirements for a valid strike or lockout are as                                
follows:                                                                 
It must be based on a valid and factual ground; 
A strike or lockout NOTICE shall be filed with the National Conciliation and Mediation Board
(NCMB) at least 15 days  before the intended date of the strike or lockout if the issues raised
are unfair labor practices, or at least 30 days before the intended date thereof if the issue
involves bargaining deadlock. 
In cases of dismissal from employment of union officers duly elected in accordance with the
union constitution and by-laws, which may constitute UNION BUSTING where the existence of
the union is threatened,  the 15-day cooling-off period shall not apply and the union may take
action immediately after  the strike vote is conducted and the result thereof submitted to the
Department of Labor and Employment.
  
1. A strike must be approved by a majority vote of the members of the Union and a lockout
must be approved by a majority vote of the members of the Board of Directors of the
Corporation or  Association or of  the partners in a partnership, obtained  by secret ballot in a
meeting called for that purpose. 
2. A strike or lockout VOTE shall be reported to the NCMB-DOLE Regional Branch at least 7 days
before the intended strike or lockout subject to the cooling-off  period.
 
In the event the result of the strike/lockout  ballot is filed within the cooling-off period, the 7-
day  requirement shall be counted from the day following  the expiration of the cooling-off
period. (NSFW vs. Ovejera, G.R.    No. 59743, May 31, 1982) 
In case of dismissal from employment of union officers which may constitute union  busting, the
time requirement for the filing of the Notice of Strike shall be dispensed with but the   strike
vote requirement being mandatory in character, shall “in every case” be complied with. 
The dispute must not be the subject of an assumption of jurisdiction by the President or the
Secretary of Labor and Employment, a certification for compulsory or voluntary arbitration nor
a subject of a pending case involving the same grounds for the strike or lockout. 
 
WHAT ARE THE VALID GROUNDS FOR DECLARING A STRIKE OR
LOCKOUT?                                                                    
The law recognizes two grounds for the valid exercise of the right to strike or lockout, namely: 
a. Collective Bargaining Deadlock (CBD) and/or
b. Unfair Labor Practice (ULP)
 
MAY A UNION FILE A NOTICE OF STRIKE  OR THE  EMPLOYER FILE A NOTICE OF LOCKOUT IF
THE LABOR DISPUTE IS BASED ON A GROUND OTHER THAN ULP AND CBD?                                    
No.  The union/employer may not file a notice based on grounds other than ULP and
CBD.  Violations of Collective Bargaining Agreements,  except flagrant and/or malicious refusal
to comply with its economic provisions, shall not be considered unfair labor practice and shall
not be strikeable and no strike or lockout may be declared on grounds involving inter-union and
internal union disputes or on issues brought to voluntary or compulsory arbitration including
legislated wage orders and labor standard cases.
 
However, if improvidently filed and it appears on the face of the notice that the issues raised
are non-strikeable or the real issues discovered during conciliation proceedings are not proper
subjects of a Notice of Strike or Lockout, The NCMB Regional   Branch shall dismiss motu propio
the notice without prejudice to further conciliation, or upon request of either or both parties in
which case, the Notice of Strike or Lockout is treated as a Preventive Mediation Case.  (See
Definition of Preventive Mediation Case under Appendix 3, Definition of Terms). 
 
WHAT ARE THE CONTENTS OF A NOTICE OF STRIKE OR LOCKOUT?                        
The notice shall state, among others, the names and addresses of the employer and the  union
involved, the nature of the industry to which the employer belongs, the number of union
members and of the workers in the bargaining unit, and such other relevant data as may
facilitate the settlement of the dispute, such as a brief statement or enumeration of all pending
labor disputes involving the same parties. 
In cases of bargaining deadlocks, the notice shall, as far as practicable, further state the
unresolved issues in the bargaining
negotiations   and  be  accompanied  by  the  written  proposals  of  the union, the counter-
proposals of the employer and the proof of a request for conference to settle the differences. 
In cases of unfair labor practice,  the notice shall, as far as practicable, state the acts
complained of and the efforts taken to resolve the dispute amicably.
 
WHAT IS THE ROLE OF THE NCMB IN CASE A NOTICE OF STRIKE OR LOCKOUT IS
FILED?                                                
Upon receipt of a valid notice of strike or lockout, the NCMB, through its Conciliator-Mediators,
shall call the parties to a conference the soonest possible time in order to actively assist them
to explore all possibilities for amicable settlement.  To this end, the Conciliator-Mediator may
suggest/offer proposals as an alternative avenue for the resolution of their
disagreement/conflict which may not necessarily bind the parties.  In  the event of failure in
conciliation/mediation  the parties shall be encouraged to submit their dispute for voluntary
arbitration.
 
WHAT IS THE LEGAL IMPLICATION IF THE CONTENT-REQUIREMENT OF THE NOTICE OF STRIKE
OR LOCKOUT HAS NOT BEEN COMPLIED
WITH?                                                                                              
Any notice which does not conform with the foregoing requirements shall be deemed not
having been filed.
 
WHAT IS THE PURPOSE OF THE STRIKE VOTE?                                  
To ensure that the decision to strike broadly rests with the majority of the Union members
in  general and not with a mere minority, at the same time, discourage wildcat strikes, union
bossism and even corruption.
 
WHAT IS THE PURPOSE OF THE STRIKE VOTE REPORT? 
To ensure that a strike vote was indeed taken and in the event that the report is false, to afford
the members an opportunity to take the appropriate remedy before it is too late.
 
WHAT IS  PURPOSE OF THE TIME REQUIREMENT IN THE NOTICE OF
STRIKE/LOCKOUT?                                                          
The 15 and 30 days requirement is known as the Cooling-Off Period designed to afford parties
the opportunity to amicable resolve the dispute with the assistance of the NCMB
Conciliator/Mediator.  Should the dispute remain unsettled until the lapse of the required
number of days from the mandatory filing of the notice, the labor union may strike or the
employer may commence a lockout after having complied with the 7-day requirement for the
filing of the  strike or lockout vote, as the case may be.
 
WHAT IS THE CORRECT INTERPRETATION OF THE  REQUIREMENT TO OBSERVE THE COOLING-
OFF PERIODS AND  THE STRIKE BAN?                                     
The prescribed cooling-off period and the 7-day strike ban after submission of report of strike
vote are mandatory.  The observance of both periods must be complied with, although a labor
union may take a strike vote and report the same within the statutory cooling-off period.  The
avowed intent of the law is to provide an opportunity for mediation and conciliation.  The
waiting period, on the other hand, is intended to provide opportunity  for the members of the
union or the management to take the appropriate remedy in case the strike or lockout vote
report is false or inaccurate.  Moreover, the cooling-off and  7-day strike ban provisions of law
are reasonable and valid restrictions on the right to strike and these restrictions constitute a
valid exercise of police power of the State.  If only the filing of the strike notice and the strike
vote report would be deemed mandatory, but not the waiting periods so specifically and
emphatically prescribed by law, the purposes for which the filing of the  strike notice and  strike
vote report is required cannot be achieved.  The submission of the report gives assurance that a
strike vote has been taken and that, if the report concerning it is false, the majority of the
members can take appropriate remedy before it is too late.  (National Federation of Sugar
Workers vs. Ovejera, 114 SCRA 354)
 
The seven (7) days waiting period is intended to give  the Department of Labor and
Employment  an opportunity to verify whether the projected strike really carries the
imprimatur of the majority of the union members.
 
The need for assurance that the majority of the union members support the strike cannot be
gainsaid.  Strike is usually the last weapon of labor to compel capital to concede  to its
bargaining demands or to defend itself against unfair labor practices of management.  It is a
weapon that can either breathe life to or destroy the union and its members in their struggle
with management for a more equitable due of  their labors.  The decision to wield the weapon
of strike must, therefore, rest on a rational basis, free  from emotionalism, unswayed by the
tempers and tantrums of a few hotheads, and firmly focused on the legitimate interest of the
union which should not, however, be antithetical to the public welfare.
 
Thus, our laws require the  decision to strike to be the consensus of the majority for while the
majority is not infallible, still, it is the best hedge against haste and error.  In addition, a majority
vote assures the union it will go to war against management with the strength derived from
unity and hence, with better chance to succeed.  (Lapanday Workers Union, Tomas N.
Basco  vs.  NLRC and Lapanday Agricultural Development Corporation, G.R. Nos. 95494-97,  7
September 1995)
 
WHAT ARE THE PROHIBITED ACTS AND PRACTICES?                        
1.         Declaring a strike or lockout on grounds involving inter-union and intra-union disputes or
on issues brought to voluntary or compulsory arbitration. 
2.         Declaring a strike or lockout without first having bargained collectively or without first
having filed the required notice or without the necessary strike or lockout vote first having been
obtained and reported to the Regional Branch of the NCMB. 
3.            Declaring a strike or lockout in defiance of a cease-and-desist order, or an order for the
striking employees to return to work and for the employer to accept the workers after
assumption of jurisdiction by  the President or Secretary of Labor and Employment, or after
certification or submission of the dispute to compulsory or voluntary arbitration, or during the
pendency of a case involving the authorized grounds for the strike or lockout. 
4.         Obstructing, impending or interfering with by force, violence, coercion, threats or
intimidation any peaceful picketing by employees during any labor controversy or in the
exercise of their right to self-organization or collective bargaining, or aiding or abetting such
obstruction or interference.
 
5.         Employing any strike breaker or being employed as a strike-breaker.
6.         No public official or employee, including officers and personnel of the Armed Forces of
the Philippines, of the Philippine National Police, or any armed person shall bring in, introduce
or escort, in any manner, any individual who seeks to replace strikers in entering or leaving the
premises of a strike area, or work in place of strikers. 
Nothing herein shall be interpreted to prevent the aforementioned officials, employees or
peace officers from taking any measure necessary to maintain peace and order and/or to
protect life and property. 
7.         Stationary picket and the use of means like placing of objects to constitute permanent
blockade or to effectively close points of entry or exit in company premises. 
8.         Any act of violence, coercion or intimidation by any picketer. 
9.         The obstruction of the free ingress to or egress from the employer’s premises for lawful
purposes. 
10.       Obstruction of public thoroughfares while engaged in picketing.
 
WHAT ARE THE LEGAL IMPLICATIONS FOR NON-COMPLIANCE WITH THE REQUIREMENTS FOR
A VALID STRIKE OR LOCKOUT?                                                   
The requirements for a valid strike or lockout are mandatory in character and non-compliance
therewith is sufficient ground to declare the strike or lockout illegal.
 
If a strike is declared illegal, the employer may be authorized to terminate the employment of
union officials who knowingly participated in the illegal strike and/or any worker or union
officer who knowingly participated in the commission of other illegal acts during the strike.
 
In case the lockout is declared illegal, any worker whose employment has been terminated as a
consequence thereof may be entitled to re-instatement including payment of full backwages
and other benefits.
 
WHEN A DISPUTE SUBJECT OF A NOTICE OF STRIKE IS FORTHWITH  TREATED AS A
PREVENTIVE MEDIATION CASE, MAY THE UNION LATER ON STAGE A STRIKE ON ACCOUNT OF
THE SAME DISPUTE?                           
No. Once the dispute has been converted into a preventive mediation case, the notice of strike
is deemed dropped from the dockets as if no notice of strike has been filed.  Since there is no
more notice of strike to speak about, any strike subsequently staged by the Union is deemed
not to have complied with the requirements of a valid strike.  The same rule applies in the case
of lockout by an employer, (PAL vs. Sec. of Labor)
 
WHO HAS THE DUTY TO DECLARE THAT THE NOTICE OF STRIKE/LOCKOUT HAS BEEN
CONVERTED INTO PREVENTIVE MEDIATION CASE?                                            
Upon the recommendation of the Conciliator/Mediator handling the labor dispute, the Director
of the Regional Branch of the NCMB which has jurisdiction over the labor dispute has the duty
to declare and inform the parties that the issues raised or the actual issues involved are not
proper subjects of a Notice of Strike or Lockout and  that the Notice of Strike or Lockout has
been converted into a Preventive Mediation Case without prejudice to further conciliation or
upon the request of either or both parties.
 
MAY A LABOR DISPUTE SUBJECT OF A NOTICE OF STRIKE OR LOCKOUT, MATURE INTO A
VOLUNTARY ARBITRATION CASE? 
Yes.  By mutual agreement, the parties may decide to bring the matter for resolution before an
accredited voluntary arbitrator of their choice, in which case the Notice is deemed
automatically withdrawn and dropped from the dockets.
 
WHEN MAY A STRIKE OR LOCKOUT BE DECLARED
ILLEGAL?                                                                                     
A strike or lockout may be declared illegal if any of the requirements for a valid strike or lockout
is not complied with. 
It may also be declared illegal if it is based on non-strikeable issues or if the issues involved are
already the subject  of arbitration. 
During a strike or lockout, when either of the parties commit prohibited acts or practices, the
strike or lockout may be declared illegal.
 
WHO HAS  JURISDICTION TO DETERMINE THE LEGALITY OF STRIKE AND  LOCKOUT? 
In general,  the Labor Arbiter in the appropriate Arbitration Branch of the National Labor
Relations Commission has the power to determine questions involving the legality or the
illegality of a strike or lockout upon the filing of a proper complaint and after due hearing.
 
Where the matter of legality or illegality of strike is raised in the dispute over which the
Secretary assumed jurisdiction or in disputes certified by the Secretary to the Commission for
compulsory arbitration, the same may be resolved by the Secretary or the Commission,
respectively.  (International Pharmaceuticals, Inc. vs.  Secretary of Labor and Associated Labor
Union, G.R. No. 92981-83, January 9, 1992.)
           
MAY A VOLUNTARY ARBITRATOR DETERMINE THE LEGALITY OF A STRIKE?       
If the issue is voluntary and jointly submitted by  the parties to voluntary arbitration, the
question may be resolved by the voluntary arbitrator or panel of voluntary arbitrators.
 
CAN ANY PERSON PERFORMING ANY OF THE PROHIBITED ACTIVITIES MENTIONED IN THE
PROCEEDING PARAGRAPH BE CHARGED BEFORE THE COURT?                         
Yes.  They may be charged before the appropriate civil and criminal courts.
 
WHAT IS THE PENALTY IMPOSABLE?                                                       
Any person violating any of the provisions of Article 265 of the Labor Code (performing any of
the above prohibited activities) shall be punished by a fine of not exceeding P500.00 and/or
imprisonment for not less than one (1) day nor more than six (6) months.
 
If the person so convicted is a foreigner, he shall be subjected to immediate and summary
deportation and will be permanently barred from re-entering the country without the special
permission of the President.
 
If the act is at the same time a violation of the Revised Penal Code (RPC), a prosecution under
the Labor Code will preclude prosecution for the same act under the RPC or vice-versa.
 
IS AN EMPLOYEE WHO PARTICIPATES IN A LAWFUL  STRIKE DEEMED TO HAVE ABANDONED
HIS  EMPLOYMENT?                              
No.  An employee who goes on strike is not deemed to have abandoned his employment but is
merely exercising his right to self-organization precisely to protect his rights as an employee
and/or to obtain better working conditions.       
 
IS PARTICIPATION BY AN EMPLOYEE IN A STRIKE SUFFICIENT GROUND FOR AN EMPLOYER TO
TERMINATE HIS EMPLOYMENT?               
No.  The mere participation of a worker in lawful strike shall not constitute sufficient ground for
the termination of his employment even if a replacement has been hired by the employer
during  such lawful strike.  However, any union officer who knowingly participates in an illegal
strike and any worker or union officer who knowingly participates in the commission of illegal
acts during a strike may be  declared to have lost his employment status.
 
ARE THE STRIKERS ENTITLED TO PAYMENT OF WAGES DURING THE PERIOD OF A LAWFUL
STRIKE?                       
As a general rule, striking employees are not entitled to the payment of wages for unworked
days during the period of the strike pursuant to the principle of “No work- No pay”.  However,
this does not preclude the parties from entering into an agreement to the contrary.
 
On the other hand, when strikers abandon the strike and apply for reinstatement despite the
existence of valid grounds but the employer either refuses to reinstate them or imposes
upon   their reinstatement new conditions that constitute unfair labor practices, the strikers,
who refuse to accept the new conditions and are consequently refused reinstatement, are
entitled to the losses of pay they may have suffered by reason of the employer’s discriminatory
acts from the time  they were refused reinstatement.
 
MAY A STRIKE/LOCKOUT BE ENJOINED/PREVENTED BY LEGAL PROCESS?                         
As a general rule, strikes and lockouts validly declared enjoy the protection of law and cannot
be enjoined unless illegal acts are committed in the course of such strikes or
lockouts.  Ordinarily, the law vests in the NLRC the authority to issue injunctions to restrain the
commission of illegal acts during strikes and pickets.
 
In the national interest cases, the certification or assumption of jurisdiction by the Secretary of
Labor over the dispute under Article 263(g) of the Labor Code, as a amended, has the effect of
automatically enjoining the intended strike or lockout whether or  not a corresponding return
to work order has been issued.  The workers shall immediately return to work and the employer
shall immediately resume operations and re-admit all workers under  the same terms and
conditions of employment prevailing before the strike.
 
WHAT IS THE EXTENT OF THE POWER OF THE  PRESIDENT OR THE SECRETARY OF LABOR AND
EMPLOYMENT TO ISSUE ASSUMPTION AND CERTIFICATION
ORDERS?                                                                    
The power to issue assumption and certification orders is an extraordinary authority strictly
limited to national interest cases and granted to the President or to the Secretary of Labor,
“which can justifiably rest on his own consideration of the exigency of the situation in relation
to the national interest”.
 
Pursuant to the provisions of Article 263(g) of the Labor Code, as amended, the Secretary of
Labor is vested with the discretionary power to decide not only the question of whether to
assume jurisdiction over a given labor dispute or certify the same to the NLRC, but also the
determination of the industry indispensable to national interest.
 
The President of the Philippines shall not be precluded from intervening at any time and
assuming jurisdiction over any labor dispute involving industries indispensable to national
interest in order to settle or terminate the same.
 
Under Article 277(b) of the Labor Code, as amended, the Secretary of the Department of Labor
and Employment may suspend the effects of the termination pending resolution of the dispute
in the event of a prima facie finding by the appropriate official of the Department of Labor and
Employment before whom such dispute is pending that the termination may cause a serious
labor dispute or is in the implementation of a mass lay-off.

5. Assumption of jurisdiction by the DOLE Secretary or Certification of the labor dispute to the
NLRC for compulsory arbitration
The assumption of jurisdiction powers granted to the Labor Secretary under Article 263(g) is not
limited to the grounds cited in the notice of strike or lockout that may have preceded the strike
or lockout; nor is it limited to the incidents of the strike or lockout that in the meanwhile may
have taken place. As the term “assume jurisdiction” connotes, the intent of the law is to give
the Labor Secretary full authority to resolve all matters within the dispute that gave rise to or
which arose out of the strike or lockout, including cases over which the labor arbiter has
exclusive jurisdiction. (Bagong Pagkakaisa ng Manggagawa ng Triumph International, et al. vs.
Secretary of Department of Labor and Employment, et al./Triumph International (phils.), Inc. vs.
Bagong Pagkakaisa ng Manggagawa ng Triumph International, et al., G.R. No. 167401, July 5,
2010).

Articles 263 (g) and 264 of the Labor Code have been enacted pursuant to the police power of
the State. The grant of plenary powers to the Secretary of Labor makes it incumbent upon him
to bring about soonest, a fair and just solution to the differences between theramiemployer
and the employees, so that the damage such labor dispute might cause upon the national
interest may be minimized as much as possible, if not totally averted, by avoiding stoppage of
work or any lag in the activities of the industry or the possibility of those contingencies that
might cause detriment to the national interest. In order to effectively achieve such end, the
assumption or certification order shall have the effect of automatically enjoining the intended
or impending strike or lockout. Moreover, if one has already taken place, all striking workers
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. Assumption and certification orders are executory in character and are to be strictly
complied with by the parties, even during the pendency of any petition questioning their
validity. (YSS Employees Union-Philippine Transport and General Organization vs. YSS
Laboratories, Inc., G.R. No. 155125, December 4, 2009).

Automatically enjoins the intended or impending strike/lockout but if one has already taken
place, all striking or locked out Ees shall immediately return to work and the Er shall
immediately resume operations and re‐admit all workers under the same terms and conditions
prevailing before the strike or lockout. (Trans‐ Asia Shipping Lines, Inc.‐Unlicensed Crews Ee’s
Union v. CA. G.R. No. 145428, July 7, 2004).

Payroll reinstatement in lieu of actual reinstatement but there must be showing of special
circumstances rendering actual reinstatement impracticable, or otherwise not conducive to
attaining the purpose of the law in providing for assumption of jurisdiction by the SLE in a labor
dispute that affects the national interest. (Manila Diamond Hotel Ees Union v. SLE G.R. No.
140518, Dec. 16, 2004).

Mere issuance of an assumption order automatically carries with it a return‐to‐work order

although not expressly stated therein. (TSEU‐FFW v. CA. G.R. Nos. 143013‐14, Dec.18, 2000).
a. Issues that the SLE may resolve when he assumes jurisdiction over a labor dispute
SLE may subsume pending labor cases before LAs which are involved in the dispute and decide
even issues falling under the exclusive and original jurisdiction of LAs such as the declaration of
legality or illegality of strike. (Int’l. Pharmaceuticals v. SLE G.R. Nos. 92981‐83, Jan. 9, 1992).
Power of SLE is plenary and discretionary. (St. Luke’s Medical Center v. Torres G.R. No. 99395,
June29, 1993).

Where the return to work order is issued pending the determination of the legality of the
strike, it is not correct to say that it may be enforced only if the strike is legal and may be
disregarded if illegal. Precisely, the purpose of the return to work order is to maintain the
status quo while the determination is being made. (Nature of assumption order or certification
order. (Sarmiento v. Tuico. G.R. Nos. 75271‐73, June 27, 1988).

The assumption of jurisdiction is in the nature of a police power measure. This is done for the
promotion of the common good considering that a prolonged strike or lockout can be inimical
to the national economy. The SLE acts to maintain industrial peace. Thus, his certification for
compulsory arbitration is not intended to impede the worker’s right to strike but to obtain a
speedy settlement of the dispute. (Philtread Workers Union v. Confesor. G.R. No. 117169, Mar.
12, 1997).

Art. 263(g) does not interfere with the workers right to strike but merely regulates it, when in
the exercise of such right national interest will be affected. The LC vests upon the SLE the
discretion to determine what industries are indispensable to national interest. The underlying
principle embodied in Art. 263 (g) on the settlement of labor disputes is that assumption and
certification orders are executor in character and are strictly complied with by the parties even
during the pendency of any petition questioning their validity. This extraordinary authority
given to the Secretary of Labor is aimed at arriving at a peaceful and speedy solution to labor
disputes, without jeopardizing national interests. Art. 263(g) is clear and unequivocal in
stating that all striking or lock‐out Ees shall immediately return to work and the Er shall
immediately resume operations and readmit all workers under the same terms and conditions
prevailing before the strike or lockout. Records of the case would show that the strike occurred
one day before the members of the union were dismissed due to alleged redundancy. Thus
the abovementioned article directs that the Er must readmit all workers under the same terms
and conditions prevailing before the strike. (PLDT v. Manggagawa ng Komunikasyon sa
Pilipinas G.R. No. 162783, July 14, 2005).
 
WHEN A DISPUTE IS ASSUMED BY THE PRESIDENT OR SECRETARY OF LABOR, OR CERTIFIED
TO THE NLRC FOR COMPULSORY ARBITRATION,  MAY A STRIKE OR LOCKOUT BE VALIDLY
DECLARED ON ACCOUNT OF THE SAME DISPUTE?                                    
No.  The assumption or certification shall have the effect of automatically enjoining the
intended or impending strike or lockout. 

WHAT IS THE NATURE OF THE RETURN-TO-WORK

ORDER?                                                                                         
The return-to-work order is a valid statutory part and parcel of  the assumption and
certification orders given the predictable prejudice the strike could cause not only to the parties
but more especially to the national interest.  Stated otherwise, the assumption of jurisdiction
and the certification to  the NLRC has the effect of automatically enjoining the strike or lockout,
whether actual or intended, even if the same has not been categorically stated or does not
appear in the assumption or certification order.  It  is not  a  matter of option or voluntariness
but of  obligation.  It must be discharged as a duty even against the worker’s will.  The worker
must return to his job together with his co-workers so that the operation of the company can
be resumed  and it can continue serving the public and promoting its interest. x x x.  It is
executory in character and shall be strictly complied with by the parties even during the
pendency of any petition questioning their validity x x x precisely to maintain the status quo
while the determination is being made.  (Union of Filipro Employees vs.  Nestle Philippines,
Inc.,  GR No. 88710-13, December 19, 1990).
 
WHAT ARE THE LEGAL CONSEQUENCES IN CASE OF DEFIANCE OF THE RETURN-TO-WORK
ORDER BY THE EMPLOYER AND  BY THE EMPLOYEES?                                               
In case of non-compliance with the return-to-work order in connection with the certification or
assumption of jurisdiction by the Secretary of Labor, the employees concerned may be
subjected to immediate disciplinary action, including dismissal or loss of employment status or
payment by the locking-out employer of backwages, damages and other affirmative relief even
criminal prosecution against either or both of  them.
 
The Secretary of Labor may cite the defiant party in contempt pursuant to the power vested in
him under the provisions of the Labor Code.

7. Effect of defiance of assumption or certification orders

Under Article 264 (a) of the Labor Code, as amended, a strike that is undertaken despite the
issuance by the Secretary of Labor of an assumption order and/or certification is illegal. So is a
declaration of a strike during the pendency of cases involving the same grounds for the strike.
In the present case, there is no dispute that when respondents conducted their mass actions on
April 3 to 6, 2000, the proceedings before the Secretary of Labor were still pending as both
parties filed motions for reconsideration of the March 24, 2000 Order. Clearly, respondents
knowingly violated the aforesaid provision by holding a strike in the guise of mass
demonstration. (Solid Bank Corp. Ernesto U. Gamier, et al. and Solid Bank Corp., et al. vs. Solid
Bank Union and its Dismissed Officers and Members, et al. G.R. No. 159460 and G.R. No.
159461, November 15, 2010).

It shall be considered an illegal act committed in the course of the strike or lockout and shall
authorize the SLE or the NLRC, as the case may be, to enforce the same under pain or loss of
employment status or entitlement to full employment benefits from the locking‐out Er or
backwages, damages and/or other positive and/or affirmative reliefs, even to criminal
prosecution against the liable parties. (St. Scholastica’s College v. Torres. G.R. No. 100158,
June 2, 1992).  

CAN THE PHILIPPINE NATIONAL POLICE (PNP) BE DEPUTIZED TO ENFORCE ORDERS FROM THE
DEPARTMENT OF LABOR AND EMPLOYMENT?                              
Yes. The Secretary of Labor and Employment, the National Labor Relations Commission (NLRC)
or any Labor Arbiter may deputize the PNP to enforce any of its order, award or decision.
 
IN CASE THE PNP IS DEPUTIZED TO ENFORCE ORDERS FROM THE DEPARTMENT OF LABOR,
WHAT WILL BE ITS ROLE?                            
In such a case, the role of the PNP is merely to assist the sheriff or the appropriate DOLE
Officers in enforcing the decision, award or order.  It shall maintain peace and order and public
safety in the area where  the decision, award or order is to be enforced.  It shall also give
security to the officers enforcing the decision, award or order.  (Please see also Article 264 (d),
Article 266 of the Labor Code, as amended, and Guidelines for the Conduct of PNP During
Strikes, Lockouts and Labor Disputes in General, Oct. 22, 1987).
 
WHAT IS A STRIKE AREA?                                              
A strike area includes:  (a)  the establishment of the employer struck against including run-away
shops, factories or warehouses and other premises where members of the bargaining unit carry
out the operations and business of the employer, and (b)  the area immediately before points
of entrance and exit of establishment struck against.
 
IS THE INGRESS AND EGRESS OF THE ESTABLISHMENT PART OF THE STRIKE
AREA?                                                    
No. Since it is not part of the strike area, the same could not be blocked or picketed.
 
WHO IS A STRIKE-BREAKER?                                                  
A strike-breaker means any person who obstructs, impedes or interferes with by force,
violence, coercion, threats or intimidation any peaceful picket by employees during any labor
controversy.
 
8. Illegal strike
The Supreme Court also cited the 6 categories of illegal strikes which are: 1. When it is contrary
to a specific prohibition of law, such as strike by employees performing governmental
functions; or 2. When it violates a specific requirement of law, [such as Article 263 of the Labor
Code on the requisites of a valid strike]; or 3. When it is declared for an unlawful purpose, such
as inducing the employer to commit an unfair labor practice against non-union employees; or 4.
When it employs unlawful means in the pursuit of its objective, such as a widespread terrorism
of non-strikers [for example, prohibited acts under Art. 264(e) of the Labor Code]; or 5. When it
is declared in violation of an existing injunction, [such as injunction, prohibition, or order issued
by the DOLE Secretary and the NLRC under Art. 263 of the Labor Code]; or 6. When it is contrary
to an existing agreement, such as a no-strike clause or conclusive arbitration clause. (Toyota v
Toyota Workers Association. G.R. Nos. 158786 & 158789 October 19, 2007).

No backwages will be awarded to union members as a penalty for their participation in

the illegal strike. As for the union officers, for knowingly participating in an illegal strike, the law
mandates that a union officer may be terminated from employment and they are not entitled
to any relief. (Gold City Integrated Port Services, Inc. v. NLRC. G.R. No. 86000, Sep. 21, 1990).
Those union members who have joined an illegal strike but have not committed any illegal act
shall be reinstated but without back wages.The responsibility for the illegal acts committed
during the strike must be on an individual and not on a collective basis. (First City Interlink
Transportation Co., Inc. v. Confesor G.R. No. 106316, May 5, 1997).

9. Injunctions
a) Requisites for labor injunctions
No court or entity shall enjoin any picketing, strike or lockout except as provided in Article 218
and 263 of the Labor Code, as amended.  The National Labor Relations Commission proper shall
have the power to issue temporary injunctions but only after   due notice and hearing  and in
accordance with its rules.  It may also issue restraining orders to appropriate cases subject as  a
general rule to the requirements of due notice and hearing.
 
Petitions for injunctions or restraining orders shall be handled or resolved with extreme care
and caution.  All efforts to conciliate or settle amicably the issues in the main dispute and those
involved in petitions for injunctions shall be exhausted.  Injunctions and restraining orders
therefore may be issued only in case of extreme necessity based on legal grounds clearly
established, after due consultations or hearing and when all efforts at conciliation are
exhausted.
 
Injunction orders shall be enforced only to the extent necessary to correct violations of law and
shall not prevent the workers from exercising the right to peaceful picketing.  The right to
ingress or  egress may be exercised only for lawful purposes as may be indicated in the
injunctive orders in line with established jurisprudence.
 
Injunction  orders issued under Article 218 and 263 of the Labor Code, as amended, shall be
served and enforced by appropriate officials or employees of the National Labor Relations
Commission or by such officials or employees of the Department of Labor and Employment who
may be designed by the labor secretary.
 
The assistance of other civilian authorities like national, local or city officials may be sought, if
necessary.  Only under extreme circumstances shall the assistance of the PC/INP be enlisted
and in such cases, the police authorities shall also serve on a supportive capacity to the labor
department officials or employees.  All efforts must be exerted in all cases to bring about
voluntary and peaceful compliance with injunctive orders.  PC/INP representatives shall be
guided by duly promulgated guidelines.

b) “Innocent bystander rule”

The innocent by stander must show: 1. Compliance with the grounds specified in Rule 58 of the
Rules of Court, and 2. That it is entirely different from, without any connection whatsoever
to, either party to the dispute and, therefore, its interests are totally foreign to the context
thereof. (MSF Tire & Rubber v. CA, G.R. 128632, Aug. 5, 1999).

A party, by filing its 3rd party claim with the deputy sheriff, it submitted itself to the jurisdiction
of the NLRC acting through the LA. The broad powers granted to the LA and to the NLRC by
Art. 217, 218 and 224 of the LC can only be interpreted as vesting in them jurisdiction over
incidents arising from, in connection with or relating to labor disputes, as the
controversy under consideration, to the exclusion of the regular courts. The RTC, being a
co‐equal body of the NLRC, has no jurisdiction to issue any restraining order or injunction to
enjoin the execution of any decision of the latter. (Deltaventures v. Cabato. G.R. No.
118216, Mar. 9, 2000).

The concerted action taken by the members of the union in picketing the premises of the
department store, no matter how illegal, cannot be regarded as acts not arising from a labor
dispute over which the RTCs may exercise jurisdiction. (Samahang Manggagawa ng Liberty
Commercial v. Pimentel G.R. No. L‐78621, Dec. 2, 1987).

VII. PROCEDURE AND JURISDICTION

Principle of Emancipation of Labor Relations (Doctrine of Speedy Labor Justice)
This principle simply provides that rules of procedure and evidence in courts of law or equity
shall NOT control labor proceedings. The same may be relaxed in labor cases to serve the
demands of substantial justice (Havtor v. NLRC, 372 SCRA 271)