Representation and Collective Bargaining

- Representation:
1. Terms:
1.1 Exclusive bargaining representative - a legitimate labor organization duly-
recognized and certified as the sole and exclusive bargaining agent of all employers in a
bargaining unit.
1.2 Bargaining representative - a legitimate labor organization whether or not
employed by the employer.
1.3 Bargaining unit - a group of employees sharing mutual interest within a given
employer unit, comprised of all or less than all of the entire body of employees in
the employer unit.
2. Factors in determining proper constituency of collective bargaining unit:
2.1 “Globe” doctrine - will of the employees should be considered in determining
what union to join or form.
2.2 Substantial mutual interest doctrine - considers the affinity and unity of the
employees’ interest, such as substantial similarity of work, compensation, and
working conditions.
2.3 CBA history doctrine
2.4 Employment status doctrine - similarity of employment status
3. Modes of determining an exclusive bargaining agent:
3.1 Voluntary recognition
3.2 Certification election
3.3 Run-off election
3.4 Consent election
3.5 Re-run election

- Procedure for certification election petition:

1. Who files?
1.1 Any legitimate labor organization, or
1.2 Employer, when requested to bargain collectively in a bargaining unit where no
registered CBA exists.
2. Where to file?
2.1 Regional Office that issued the petitioning union’s certificate of registration, or
2.2 Online (at petitioner’s option).
3. When to file? - Anytime
4. Form of petition - written and verified under oath by the president of the petitioning
union
4.1 Name of petitioner, address, affiliation (if any), and date & number of its
certificate of registration.
4.2 Name, address, and nature of employer’s business.
4.3 Description of bargaining unit.
4.4 Approximate number of employees in the bargaining unit.
4.5 Names and addresses of other legitimate labor organizations in the bargaining
unit.
4.6 Statement indicating any of the following circumstances:
4.6.1 The bargaining unit is unorganized, or there is no registered CBA
 covering the employees in the bargaining unit.
4.6.2 If there exists a duly-registered CBA, that the petition was filed within
that agreement’s Freedom Period.
4.6.3 If another union had been previously recognized voluntarily or
certified in a valid election, that the petition was filed outside the 1-year period
from date of recording of such voluntary recognition or conduct of election,
and no appeal is pending therefrom.
4.7 In an organized establishment, the signature of at least 25% of all employees in
the appropriate bargaining unit to be attached to the petition at the time of filing.
4.8 Other relevant facts.
5. Effect of filing the petition by the employer (Bystander Rule) - the employer is not
considered a party thereto, and his participation is limited to being notified of petitions
of such nature, and submitting the list of employees during the pre-election conference
should the Med-Arbiter act favorably on the petition.
6. Notice of Preliminary Conference
6.1 Petition transmitted to the Med-Arbiter, who shall immediately prepare and
serve a notice of preliminary conference to be held within 10 working days from
receipt thereof.
6.2 Service of the petition and the notice to be made within 3 working days from
Med-Arbiter’s receipt of petition, and may be made by personal service, registered
mail, or courier service.
6.3 Copy of petition and notice to be posted within the same 3 days in at least 2
conspicuous places in the establishment.
7. Preliminary Conference - held by the Med-Arbiter within 10 days from receipt of the
petition in order to determine the following:
7.1 Bargaining unit to be represented.
7.2 Contending labor unions.
7.3 Possibility of consent election.
7.4 Existence of any bar to certification election.
7.5 Other relevant matters.
8. Order issued by the Med-Arbiter within 10 days from date of last hearing granting or
denying the petition, except in organized establishments where the grant can only be
made after the lapse of the Freedom Period.

- Conduct of certification election:

1. Raffling of case to the Election Officer.
2. Election Officer shall cause the issuance of notice of pre-election conference upon
the contending unions, scheduled within 10 calendar days from receipt of assignment.
3. Posting of notices of election in at least 2 conspicuous places in company premises at
least 10 days before actual date of election.
4. Inspection of polling place, booths, and ballot boxes, & preparation of ballots by the
Election Officer.
5. Casting of votes.
6. Election Officer canvasses the votes in the presence of the representative of the
contending unions.
7. Union that obtained a majority of the valid votes cast shall be certified as the sole
and exclusive bargaining agent of all employees in the bargaining unit within 5 days
 from election day.

- Collective Bargaining - the performance of a mutual obligation to meet & convene properly
and expeditiously in good faith for the purpose of negotiating an agreement with respect to
terms & conditions of employment - including proposals for adjusting any grievances or
questions arising from such agreement - and executing a contract incorporating such
agreements if requested by either party, but such duty does not compel any party to agree
to a proposal or make any concession.

- In the absence of an agreement providing for a more expeditious manner of collective

bargaining, it is the duty of the employer and the employees’ representatives to bargain
collectively in accordance with the Labor Code’s provisions.

- Neither party shall terminate or modify such agreement during its lifetime, and they shall
continue in full force, & effect its terms during the 60-day Freedom Period and/or until a
new agreement is reached. Such termination or modification during said period can only be
had when either party serves written notice on the other respecting such matter.

- Procedure:
1. Written notice with a statement of its proposals, and Reply.
2. Conference due to differences arising from such Notice and Reply, not later than 10
dates from date of request.
3. NCMB intervention if the dispute is not settled.
4. Prohibition during conciliation proceedings of any act by the parties that may disrupt
or impede the early settlement of the dispute.
5. Efforts to settle disputes amicably, and encourage voluntary arbitration.

- Art. 265 (253-A):

1. Any CBA entered shall be for a term of 5 years, as far as the representation aspect is
concerned.
2. All other CBA provisions shall be renegotiated not later than 3 years after its
execution.

- Collective Bargaining Agreement (CBA) - contract between the employer and the
bargaining unit’s sole and exclusive bargaining agent concerning terms and conditions of
employment, including terms respecting settlement of grievances arising from such
agreement.

- Retroactivity of CBA:
1. If entered within 6 months from expiration date, it retroacts to the day immediately
following such date.
2. If entered beyond 6 months from expiration date, parties shall agree on duration of
retroactivity.

- The effect of registration of the CBA is to bar the filing of any petition for certification
election or any other action that will disturb the administration of said agreement
throughout the period of the agreement’s effectivity. This is the Contract Bar Rule. The
exception to this would be the Freedom Period.

- If a CBA had been entered, but the union that negotiated for it lost in a certification
election, the winning union has the option of either setting aside the CBA or implementing
it. Nonetheless, the holding of the certification election would still push forward.

Grievance Machinery & Voluntary Arbitration

- Terms:
1. Grievance - any question by either the employer or the union regarding the
interpretation or enforcement of any CBA provision or company personnel policy.
2. Grievance Machinery - machinery for adjustment and resolution of grievances arising
from interpretation or enforcement of any CBA provision or company personnel policy.

- Steps in grievance process:

1. Shop floor level - the employee presents the problem to his supervisor, who would
record the facts of the problem, and settle the same in 3 days.
2. Plant level - discussion of the problem between the employee, the supervisor, and
the department manager, the problem to be settled in 7 days.
3. Top level - discussion between the employee, the supervisor, the department
manager, and the top management, the problem to be settled in 10 days.

- Procedure in handling grievances:

1. The employee presents the grievance (oral or written) to shop steward, who shall
verify the facts, and determine the grievance’s validity.
2. If grievance is valid, shop steward shall immediately being the complaint to
employee’s immediate supervisor for settlement.
3. If no settlement is reached, complaint is referred to a grievance committee for
decision within 10 days.

- Jurisdiction of Voluntary Arbitrators:

1. Implementation or enforcement of CBA provisions or company personnel policy, if
unresolved.
2. Implementation or enforcement of productivity incentive programs.
3. Wage distortion issues arising from implementation of wage orders in organized
establishments.
4. All other labor disputes, including unfair labor practices and bargaining deadlocks,
upon parties’ agreement.
5. Violations of the CBA, except those that are gross in character.

- Procedures in Voluntary Arbitration:

1. Powers of the Voluntary Arbitrator
1.1 Hold hearings, receive evidence, and take necessary action to resolve the
dispute.
1.2 Conciliate or mediate to aid the parties in reaching a voluntary settlement.
2. Submission to the Voluntary Arbitrator
2.1 Service of notice by one party upon the other of its decision to submit the issue
 to voluntary arbitration, said notice stating the issues to be arbitrated.
2.2 If party upon whom notice is served fails or refuses to respond favorably within
7 days, the Voluntary Arbitrator shall commence proceedings.
3. Periods
3.1 Period to render decision - 20 days from date of submission to the Voluntary
Arbitrator.
3.2 Finality of decision/period to appeal the same - 10 days from receipt thereof.
4. Execution of decision via writ of execution
4.1 Upon motion of any party
4.2 Issued by:
4.2.1 Voluntary Arbitrator.
4.2.2 Panel of Voluntary Arbitrators.
4.2.3 Labor Arbiter in region where the movant resides.
5. Appeal
5.1 Petition for review under Rule 43 of the Rules of Court
5.2 Voluntary Arbitrator’s order for reinstatement is immediately executory
pending appeal.

- Cost of arbitration and Voluntary Arbitrator’s fee:

1. Factors to take into account:
1.1 Nature of case.
1.2 Time consumed in hearing.
1.3 Voluntary Arbitrator’s professional standing.
1.4 Parties’ capacity to pay.
1.5 Fees provided in the Rules of Court.

Strikes, Lockouts, & Foreign Involvement in Union Activities

- Workers have the right to engage in concerted activities for purposes of collective
bargaining, or for their mutual benefit and protection. The right of legitimate labor
organization to strike and picket, and of employers to lockout, consistent with the national
interest, shall continue to be recognized and respected.

- Grounds for strike/lockout:

1. Bargaining deadlocks.
2. Unfair labor practices.

- Procedure in declaring a strike or lockout:

1. Who files?
1.1 Duly-recognized and certified bargaining representative
1.2 Employer
1.3 Legitimate labor organization, in the absence of a duly-recognized certified
bargaining representative, but ONLY on grounds of unfair labor practices.
2. When to file? (cooling-off period to be used for mediation and conciliation)
2.1 Bargaining deadlocks - 30 days before intended date.
2.2 Unfair labor practices, in general - 15 days before intended date.
2.3 Unfair labor practice involving dismissal from employment of any duly-elected
 union officer, and union’s existence is threatened = N/A.
3. What to file?
3.1 Contents of notice
3.1.1 Names and addresses of employer and union involved.
3.1.2 Nature of industry to which employer belongs.
3.1.3 Number of union members and of workers in bargaining unit.
3.1.4 Relevant data that may facilitate settlement of dispute:
3.1.4.1 Bargaining deadlocks - notice must include unresolved issues in
negotiations, the union’s written proposals, employer’s counter-proposals,
and proof of request for conference to settle differences.
3.1.4.2 Unfair labor practices - notice shall state the acts complained of,
and efforts taken to amicably resolve the dispute.
4. Strike or lockout vote (notice sent to the NCMB)
4.1 Who votes?
4.1.1 Union - majority of total union membership in concerned bargaining
unit.
4.1.2 Employer - majority of the board of directors or partners.
4.2 How? Secret ballot conducted by the DOLE (through the NCMB), either motu
proprio or at the request of any affected party.
4.3 Validity of decision to strike or lockout shall be valid for the duration of the
dispute based on substantially the same grounds considered when vote was taken.
4.4 In every case, the union or the employer shall furnish the DOLE the results of
the voting at least 7 days before the intended strike/lockout, subject to the
cooling-of period provided.
5. National interest cases
5.1 Duty of the Secretary of Labor:
5.1.1 Assume jurisdiction over the dispute, and decide it.
5.1.2 Certify the same to the Commissioners of the NLRC for compulsory
arbitration.
5.2 Effects of assumption/certification:
5.2.1 Automatically enjoining the intended/impending strike or lockout.
5.2.2 If one has already taken place, all striking or locked-out employees
shall immediately return to work, and the employer shall resume operations
and re-admit all workers under the same terms prevailing before the
strike/lockout.
5.2.3 Those who refuse to comply with the assumption order are deemed to
have lost their employment status., due to their defiance of an act of State.
5.3 Duty of the Phil. President:
5.3.1 Determine industries indispensable to national interest.
5.3.2 Assume jurisdiction over any dispute to settle or terminate the same.

- Striking employees are not entitled to 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.

- Prohibited activities:
1. No declaration of strike/lockout without:
 1.1 Having bargained collectively.
1.2 Filed the notice required.
1.3 Necessary vote obtained and reported to the DOLE.
2. No declaration of strike/lockout after:
2.1 Assumption of jurisdiction by the President or the Secretary of Labor.
2.2 Certification/Submission of dispute to compulsory/voluntary arbitration, or
during its pendency.
3. No person shall:
3.1 Obstruct/Interfere by violence, threats, or intimidation any peaceful picketing.
3.2 Aid/Abet such obstruction/interference.
4. No employer shall employ any strike-breaker, nor shall any person be employed as a
strike-breaker.
5. No public official/employee shall bring in, introduce, or escort in any manner any
individual who seeks to replace strikers in entering/leaving the premises of a strike area,
or work in place of the strikers.
6. No person engaged in picketing shall commit any act of violence, coercion, or
intimidation or obstruct the free ingress to/egress from the employer’s premises for
lawful purposes, or obstruct public thoroughfares.

- Effects of participation in illegal strike and commission of illegal acts during strike:
1. Loss of employment status for:
1.1 Any union officer who knowingly participates in an illegal strike.
1.2 Any worker or union officer who knowingly participates in the commission of
illegal acts during a strike.

- When strike is illegal:

1. Contrary to specific prohibition of law.
2. Violates specific requirement of law.
3. Declared for unlawful purposes.
4. Employs unlawful means in pursuit of its objective.
5. Declared in violation of existing injunction.
6. Contrary to existing agreement.

- Improved/reduced-offer balloting (secret ballot):

1. In case of strike; procedures:
1.1 DOLE to conduct referendum on employer’s improved offer on or before 30 th
day of strike.
1.2 If majority of union members vote to accept the offer, they shall return to work
and be re-admitted upon employer’s signing of the agreement.
2. In case of lockout; procedures:
2.1 DOLE to conduct referendum on union’s reduced offer on or before 30 th day of
lockout.
2.2 If majority of the board or partners vote to accept the offer, workers shall
return to work and be re-admitted upon employer’s signing of the agreement.

- All aliens, natural or juridical, are strictly prohibited from engaging, directly or indirectly, in
all forms of trade union activities. Moreover, they cannot give any donations, grants, or
other forms of assistance, directly or indirectly, to any labor organization, group of workers
or any auxiliary thereof in relation to trade union activities without prior permission by the
Secretary of Labor. The exceptions are:
1. Without prejudice to normal contacts between Phil. labor unions and recognized
international labor centers.
2. Aliens working in the country with valid DOLE-issued permits may exercise the right
to self-organization and join or assist labor organizations of their own choice for
collective bargaining purposes, provided that they are nationals of countries that grants
the same or similar rights to Filipino workers.

- No foreign individual or organization may give any donations, grants or other forms of
assistance, in cash or in kind, directly or indirectly, to any labor organization, group of
workers or any auxiliary thereof in relation to trade union activities without prior permission
by the Secretary of Labor.

- Trade union activities:

1. Organization, formation, and administration of labor organization.
2. Negotiation and administration of collective bargaining agreements.
3. All forms of concerted union action.
4. Organizing, managing, or assisting union conventions, meetings, rallies, etc.
5. Any form of participation in representation proceedings, elections, etc.
6. Other activities analogous to the foregoing.

- The aforementioned provisions shall be deemed applicable likewise to all organized farm
tenants, rural workers, and the like, provided that in applicable cases, the Secretary of
Agrarian Reform shall exercise the Secretary of Labor’s powers and responsibilities.

Visitorial Power

- The Secretary of Labor or his duly-authorized representative is hereby empowered to:

1. Inquire into the financial activities of legitimate labor organizations upon filing of a
complaint under oath and duly supported by written consent of at least 20% of the total
membership of the labor organization concerned.
2. Examine books of accounts and other records.
3. Determine compliance with the law.
4. Prosecute violations of the law, & the union constitution and by-laws.

- Procedure:
1. When to file?
1.1 Complaint or petition for examination prescribes within 3 years from date of
submission of annual financial report to the DOLE or from the date the same should
have been submitted as required by law, whichever comes first.
2. Where to file?
2.1 Regional Office - independent labor unions, chartered locals, and workers’
associations.
2.2 Bureau of Labor Relations - federations, national labor unions, and trade union
centers.
 3. Decision and appeal
3.1 If granted:
3.1.1 Includes appointment of Audit Examiner.
3.1.2 Includes directive to submit report and recommendations within 10
days from end of the audit.
3.2 If denied:
3.2.1 Appealable within 10 days from receipt thereof by any of the parties
with the BLR.
4. When inquiry shall not be conducted:
4.1 Freedom Period
4.2 30 days immediately preceding the election date of union officials.

Security of Tenure

- The employer shall not terminate the services of an employee except for either a just or
authorized cause under the Labor Code.

- Art. 10, Sec. 3 of the 1987 Constitution guarantees the right of all workers to security
tenure during their term of employment. One’s employment, profession, trade, or calling is
a property right, especially when a person has no other profession. As such, he may only be
deprived of it by due process.

- Procedural due process in termination disputes:

1. First notice - containing the grounds for the employee’s termination (either the
company rules violated or the grounds under the Labor Code), and a directive that the
employee is given a reasonable opportunity (at least 5 calendar days from receipt
thereof) to submit his written explanation.
2. Hearing - where the employee is given the opportunity to explain and clarify their
defenses against the charges against them, present evidence in support of such
defenses, and rebut that presented against him.
3. Second notice - essentially of termination, served upon the employee indicating that
all the circumstances involving the charge against the employee had been considered,
and that grounds have been established to justify termination of his employment.

- Reliefs from illegal dismissal:

1. Reinstatement - readmission of an employee back to work under the same
conditions prevailing prior to dismissal, presupposing that there is no demotion in rank
and diminution of salary, benefits, and other privileges, and if the position previously
occupied no longer exists, the restoration shall be to a substantially equivalent position
in terms of remunerations and benefits, or, at the employer’s option, admission may
mean mere reinstatement in the payroll.
2. Backwages - form of relief that restores the income lost by reason of illegal dismissal.
The grant thereof is intended to restore the earnings that would have accrued to the
dismissed employee during the period of dismissal until it is determined that the
termination of employment is for a just cause. In case separation pay is awarded and
reinstatement is not feasible, backwages shall be computed from the time of illegal
dismissal up to finality of decision, should separation pay not be paid in the meantime.
 Otherwise, it is to be computed from the time of illegal dismissal (or withholding of
compensation) to the time of reinstatement.

- Concepts:
1. Piercing the veil - applicable when corporate fiction is used to defeat public
convenience, justify wrong, protect fraud, or defend crime, or when it is made as a
shield to confuse legitimate issues, or where a corporation is the mere alter ego of a
person, or where the corporation is organized and its affairs are conducted so as to
make it merely an adjust of another corporation.
2. Strained relations - payment of separation pay is considered an acceptable
alternative to reinstatement when the latter is no longer desirable or viable. On one
hand, such payment frees the employees from what could be a highly oppressive work
environment; on the other hand, it releases the employer from the grossly unpalatable
obligation of keeping in its employ a worker it no longer trusts.
3. Constructive dismissal - exists if an act of clear discrimination, insensibility or disdain
by the employer becomes so unbearable on the part of the employee that it could
foreclose any choice by the latter except to forego continued employment.
4. Preventive suspension - measured allowable by law and afforded to the employer if
an employee’s continued employment poses a serious thereat to the employer’s life or
property or of his co-workers, and may be legally imposed against an employee whose
alleged violation is the subject of an investigation. However, such measure shall not last
longer than 30 days.

Termination of Employment

- Grounds for termination:

1. By the employer
1.1 Just causes:
1.1.1 Serious misconduct or willful disobedience of lawful orders.
1.1.2 Gross and habitual neglect of duties (based on damage the employer
sustained).
1.1.3 Fraud or willful breach of trust.
1.1.4 Commission of an offense against the employer, an immediate
member of his family, or his duly-authorized representative.
1.1.5 Other analogous cases.
1.2 Authorized causes (first 3 grounds must be coupled with service of written
notice at least a month before intended date):
1.2.1 Installation of labor-saving devices.
1.2.2 Redundancy.
1.2.3 Retrenchment.
1.2.4 Disease, if continued employment is legally prohibited or prejudicial to
the health of the employee or his co-employers.
1.2.5 Cessation of business operations.
2. By the employee
2.1 Serious insult on the employer’s person and honor.
2.2 Inhuman and unbearable treatment accorded by the employee.
2.3 Commission of an offense against the employee, or an immediate member of
 his family.
2.4 Other analogous cases.
- When employment is not deemed terminated:
1. Bona fide suspension of business operations for a period not exceeding 6 months.
2. Employee’s fulfillment of civic or military duties.

Retirement

- With agreement:
1. Retirement upon reaching established retirement age.
2. Entitlement to such retirement benefits as may be earned under the CBA and
existing laws, provided that said benefits under any CBA shall not be less than those
provided therein.

- Without agreement - an employee, upon reaching the age of 60 years or more, but not
beyond 65 years (compulsory retirement age), who has served at least 5 years in said
establishment:
1. May retire.
2. Entitled to retirement pay equivalent to at least half-month salary for every year of
service, a fraction of at least 6 months being considered a whole year. (Note: under RA
7641, one-half month salary means 15 days + 1/12 of the 13 th month pay and the cash
equivalent of not more than 5 days of service incentive leaves.)

- Underground mining employee (more than 50 but less than 60 years old) who has served
at least 5 years is entitled to all retirement benefits provided by the Labor Code.

- Retail, service, and agricultural establishments employing not more than 10 employees are
exempted from the aforementioned.

Prescription of Offenses and Claims

- Offenses:
1. Generally prescribe in 3 years.
2. All unfair labor practices filed with the appropriate agency - within a year from
accrual of such ULP.

- Money Claims:
1. Prescribe in 3 years from the time the cause of action accrues.
2. Filed before appropriate agency independently of the criminal action that may be
instituted in the proper courts.
3. Pending final determination of such claim, no other civil case arising from the same
cause of action shall be filed with any court.
4. Provision not applicable to employee compensation claims.