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What is the composition of the NLRC?
It is composed of a Chairman and 23 members. 8
members are from workers and employers
organization. The Chairman and 7 other members
are from the public sector. Upon assumption into
office, the members divest themselves of any
affiliation with or interest in the federation or
association to which they belong (Art. 213, LC).
The NLRC exercises its adjudicatory and most
of its other functions through its division that is
composed for 3 members. When does the NLRC
sit en banc?
a. Purposes of promulgating rules and
regulations governing the hearing and
disposition of cases
b. Formulating policies affecting its
administration and operations (Art. 213,
LC)
c. The appointment of a Labor Arbiter by the
President needs a recommendation of the
Commission en banc.
Is the resolution on a motion for reconsideration
valid even if the commissioners that passed the
resolution are not the same commissioners who
made the decision sought to be reconsidered?
Yes. What matters is that the commissioners voting
on the motion are duly assigned to the division.
(Mina v. NLRC, GR 97251-52)
Moreover, there is nothing irregular in temporary
designation of a commissioner to a division. The
law empowers the NLRC Chairman to make
temporary assignments whenever the required
concurrence is not met.
(MalayangSamahanngmgaManggagawasa M.
Greenfield v. Ramos, 326 SCRA 441)
What is the limit in the administrative
supervision of the Secretary of Labor over the
NLRC?
The delegation of authority shall not extend to the
power to review, reverse, revise, or modify
decisions of the NLRC in the exercise of its judicial
functions. (EO 204, 2005)
Which cases fall under the jurisdiction of the
Labor Arbiters?
a. ULP cases
b. Termination disputes
c. Cases involving conditions of employment
if accompanied with a claim of
reinstatement
d. Claims for damages arising from ER-EE
relations
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e. Cases from a violation of Art 264
including the legality of strikes, lockouts
f. Claims arising from ER-EE relations
except ECC, SSS, Medicare, and
maternity benefits or for claims involving
more than 5,000 (Art 217, LC)
g. Claims from overseas deployment
h. Wage distortion (RA 6727, Art 124 LC)
i. Enforcement of compromise agreements
when there is non-compliance (Art 227,
LC)
j. Other cases provided by law
Arbitration is the reference of a dispute to an
impartial third person to hear and decide the
case in controversy. When is it compulsory?
When the consent of one of the parties is enforced
by statutory provisions, the proceeding is referred
to as compulsory arbitration. (Azucena, p. 35)
To who should the decisions of the Labor
Arbiters be appealed?
The decisions of the Labor Arbiters are appealable
to the NLRC sitting as any of its 8 divisions.
Are proceedings on appeal before the NLRC
considered as part of the arbitration
proceedings?
No. When the Labor Arbiter renders his decision,
compulsory arbitration is deemed terminated. The
NLRC en banc merely reviews the decision for
errors of fact or law and no longer duplicates the
proceedings before the Labor Arbiter. (PAL v.
NLRC, GR 55159)
Are technicalities of law and procedure in
regular courts applicable in NLRC or Labor
Arbiter proceedings?
No. The proceedings are non-litigous. The arbiter
may avail himself of all reasonable means to
ascertain the facts speedily. (Rule V, Sec. 2, NLRC
Revised Rules of Procedure, 2005)
Cases under Art 217 are under the exclusive
jurisdiction of the Labor Arbiter. In what
instance may a case under Art 217 be resolved
by someone other than the Labor Arbiter?
The cases under Art 217 can, byagreement of the
parties, be presented to and decided with finality by
a voluntary arbitrators or panel of voluntary
arbitrators. The law gives primacy to voluntary
arbitration instead of compulsory arbitrations.
(Azucena, p. 36-37)
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An ER-EE relationship is necessary in order of
the Labor Arbiter to take cognizance of a case
under Art 217. Without such relationship, who
has jurisdiction?
The RTC has jurisdiction in cases where there is no
ER-EE relationship. (Lapanday Agricultural
Development Corp v. CA, 324 SCRA 39)
Where is the venue for cases which the Labor
Arbiters have jurisdiction over?
Such cases should be filled in the Regional
Arbitration Branch having jurisdiction over the
workplace of the complainant or petitioner.
Workplace is understood as the place or locality
where the employee is regularly assigned or
required to report to at the time the cause of action
arose. (Sec 1, NLRC Rules of Procedure)
What are ULP cases?
ULP cases involve acts intended or directed to
weaken or defeat the workers’ right to self-organize
or to engage in lawful concerted activities. (Art.
246, LC)
When are violations of the CBA considered as
ULP?
Gross violations of a CBA are considered ULP,
hence, within the jurisdiction of the Labor Arbiter.
(Azucena, p. 41)
Who has jurisdiction over cases involving the
dismissal of a corporate officer by a corporate
board?
Such cases should be brought to the RTC. They are
considered intra-corporate disputes. (Dy v. NLRC,
GR 68544)
What is the test to determine whether a case
should be filed to the RTC or to the NLRC
(whether the issue is intra-corporate)?
The concurrent factors such as:
1. The status or relationship of the parties or
2. The nature of the question that is the
subject of their controversy
should be considered to determine jurisdiction.
(Mainland Construction Co. v. Manila, GR
118088)
Who are Corporate Officers?
Corporate officers are the president, secretary, or
treasurer of the corporation or any other officer
whose office is created by the board of directors as
authorized or required by the corporate charter or
by-laws. (Tabang v. NLRC, GR 121143)
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ATTY. LIBERADOR
Except for issues involving SSS, ECC, Medicare
claims, when can a money claim arising from an
ER-EE relationship be under the jurisdiction of
the Labor Arbiter?
a. If the claim, regardless of amount, is
accompanied with a claim for
reinstatement, or
b. If the claim exceeds P5,000 per claimant.
May a money claim arising from the
implementation of the CBA be filed with a labor
arbiter?
No. The jurisdiction of the Labor Arbiter is limited
to those arising from statutes or contracts other
than a CBA. If it involves a CBA, the Voluntary
Arbitrator or Panel of Voluntary Arbitrators will
have jurisdiction. (San Josev. NLRC, GR 1211227)
[Unless the labor arbiter is named as the voluntary
arbiter by the parties]
The Labor Arbiter has jurisdiction over
question relating to strikes or lockouts. How is
this limited by the law?
The power to issue injunction is lodged with an
NLRC division. (Art 218, LC)
Regular Courts have jurisdiction over action filed
by third parties being affected by a strike of people
who are not their employees.
If a crime is committed, whether in relation to a
strike or not, the regular courts have jurisdiction.
(Azucena, p. 56)
When can the Labor Arbiter have jurisdiction
over disputes involving compromise
settlements?
1. If there is non-compliance with the
agreement, or
2. If there is prima facie evidence that
settlement was obtained through fraud,
misrepresentation, or coercion(Azucena,
p. 58)
When may the immunity from suit of the State
be invoked in a labor case?
The application of the doctrine of immunity from
suit has been restricted to sovereign or
governmental activities (jure imperii). It cannot be
extended to commercial, private, and proprietary
acts (jure gestionis) (JUSMAG-Philippines v.
NLRC, GR 108813).
What are the powers of the NLRC as
enumerated in Art. 218?
a. Promulgate rules and regulations
governing hearing and disposition of
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cases, internal functions, necessary to
carry out purposes of LC
b. Administer oaths, summon parties, issue
subpoenas
c. Conduct investigation for the
determination of a question, matter, or
controversy within its jurisdiction
d. Hold any person in contempt
e. Enjoin or restrain any actual or threatened
commission of any or all prohibited or
unlawful acts or to require the
performance of a particular act in any
labor dispute which may cause irreparable
injury (Art. 218, LC)
What is the scope of the rule-making power of
the NLRC?
The NLRC has the power to promulgate rules and
regulations:
a. Governing the hearing and disposition of
cases before it and its regional branches,
b. Pertaining to its internal functions, and
c. Those that may be necessary to carry out
the purpose of the Labor Code (Art. 218,
LC)
What is the scope of the power of the NLRC to
issue compulsory process?
The NLRC has the power to:
a. Administer oaths,
b. Summon parties, and
c. Issue subpoenasad testificandumand
ducestecum (Art. 218, LC)
What is the power to conduct an ocular
inspection under Art 219?
The chairman, any commissioner, labor arbiter, or
their duly authorized representatives may, at any
time during working hours:
a. Conduct and ocular inspection on any
establishment, building, ship, place, or
premises, including any work, material,
implement, machinery, or appliance
b. Askany employee, laborer, or any person
for any information or data concerning
any matter or question relative to the
object of investigation
When does the NLRC exercise original
adjudicatory power?
a. Petitions for injunction or TRO under Art.
218 (e)
b. Hear and decide “National Interest” cases
certified to it by the Secretary of Labor
under Art 263 (g).
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ATTY. LIBERADOR
When does the NLRC exercise appellate
adjudicatory power?
a. All cases decided by labor arbiters (Art.
217, LC)
b. Cases decided by the DOLE regional
director or hearing officers under Art 129
The NLRC has NO appellate jurisdiction over
cases rendered by:
a. A voluntary arbitrator
b. Secretary of labor
c. Bureau of labor relations director on cases
appealed from the DOLE regional officer
May a division of the NLRC defeat a final
judgment of the labor arbiter by entertaining a
petition for injunction and damages and
receiving evidence to recover alleged
indebtedness that will offset a monetary claim of
the employee?
No. An injunction under Art 219 is only an
ancillary remedy in ordinary labor disputes.
(Pondoc v. NLRC, GR 116347)
May a labor arbiter issue an injunction or a
restraining order?
No. Art. 218 limits the grant of injunctive power to
the NLRC division. (PMAP Labor Relations
Update, Q3 and Q4, p.2)
What are the requisites of issuance of
Restraining Order or Injunction?
a. A hearing held after due and personal
notice to known persons against whom the
relief is sought, public officials of the
province or city
b. Reception of testimony of witnesses with
opportunity for cross-examination
c. A finding of fact of the NLRC that:
i. Prohibited or unlawful acts will
be committed or continued
ii. Substantial and irreparable injury
iii. Greater injury in denial than in
granting
iv. Complainant has no adequate
remedy at law
v. Public officers charged w/ duty
to protect are unable or unwilling
What are the conditions for issuance ex parte of
a TRO?
a. Complainant alleges substantial and
irreparable injury
b. Testimony under oath to justify the TRO
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c. Complainant files an undertaking w/
adequate security
d. TRO effective for no longer than 20 days,
becomes void after (Ilaw at
BuklodngManggagawa v. NLRC)
When in an injury considered irreparable?
It is considered irreparable if it is of such constant
and frequent recurrence that no fair and reasonable
redress can be had thereof in court or where there is
no standard by which the amount can be measured
with reasonable accuracy (PAL v. NLRC, GR
105090).
Under NLRC Rules 2005, how much is the cash
bond to be posted for a restraining order or
injunction?
The cash bond is in the amount of P50,000 or such
higher amount as may be determined by the NLRC.
What is the scope of the injunction issued under
the Labor Code?
It is restricted only to those alleged and proven
guilty of actual participation, authorization or
ratification of acts sought to be enjoined or
restrained(Rothenberg, Labor Relations, p. 213).
It can also be exercised only in a labor dispute
(Nestle Philippines v. NLRC, GR 85197).
When does the 20-day validity of a TRO begin?
It takes effect upon its issuance, not upon receipt of
the parties. The maximum period includes
Saturdays, Sundays, and holdiays (Manotoc v.
Agcaoili, AM RTJ09801405).
May an injunction be issued to prevent the
dismissal of an employee in first instance?
No. The power of the NLRC to issue an injunctive
writ originates from any labor dispute upon any
application by a party thereof. In such case, the
proper remedy of the employee is to first file a
complaint for illegal dismissal(PAL v. NLRC, GR
120567).
Rules of evidence prevailing in the courts of law
or equity are not controlling in proceedings
before the NLRC. Nonetheless, evidence must be
substantial. How is evidence deemed
substantial?
Substantial evidence means such relevant evidence
as a reasonable mind might accept as adequate to
support a conclusion (Gelmart Industries v.
Leogardo, GR 70544).
E.
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ATTY. LIBERADOR
When is a pleading verified?
A pleading is verified by an affidavit that the
affiant has read the pleading and that the
allegations therein are true and correct of his
knowledge and belief (Azucena, p. 82).
What is the effect of the lack of verification?
Generally, lack of verification is merely a formal
defect that is neither jurisdictional nor fatal. The
court may order the correction of the pleading or
act on the unverified pleading if the attending
circumstances are such that strict compliance with
the rule may be dispensed with in order to serve the
ends of justice (Azucena, p. 82).
Who should be made respondent in a claim
against a single proprietorship?
The respondent should be the business owner. It is
not necessarily the person in whose name the
business is registered. (Mayon Hotel & Restaurant
v. Adana, Gr 157634)
What are the prohibited pleadings and motions
in the NLRC?
a. Motion to dismiss the complaint, except:
i. on the ground of lack of
jurisdiction over the subject
matter,
ii. improper venue,
iii. res judicata,
iv. prescription, and
v. forum shopping
b. Motion for a Bill of Particulars
c. Motion for new trial
d. Petition for relief from judgment when
filed with the Labor Arbiter
e. Petition for certiorari, mandamus, or
prohibition
f. Motion to declare respondent in default
g. Motion for Reconsideration or appeal
from any interlocutory order of the Labor
Arbiter
How long is the mandatory conciliation and
mediation conference?
The mandatory conciliation and mediation
conference shall, except for justifiable grounds, be
terminated within 30 calendar days from the date of
the first conference (Sec. 3, Rule V, NLRC, Revised
Rules of Procedure, 2005).
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What is the form of the compromise agreement?
It should be in writing, signed by the parties and
their respective counsel or authorized
representative, if any, before the Labor Arbiter
(Sec. 3, Rule V, NLRC, Revised Rules of
Procedure, 2005).
What is the effect of the compromise
agreement?
It is final and binding upon the parties and shall
have the force and effect of judgment rendered by
the Labor Arbiter (Sec. 3, Rule V, NLRC, Revised
Rules of Procedure, 2005).
When should the Labor Arbiter approve a
compromise agreement?
It is approved after explaining to the parties the
consequence of the compromise agreement, the
Labor Arbiter is satisfied that they understand the
agreement, that the same was entered into freely
and voluntarily by them, and it is not contrary to
law, morals, and public policy (Sec. 3, Rule V,
NLRC, Revised Rules of Procedure, 2005).
What happens after the parties fail to agree
upon an amicable settlement?
The Labor Arbiter shall terminate the conciliation
andmediation stage and proceed to pursue the other
purposes of the said conference. Thereafter, the
Labor Arbiter directs the parties to simultaneously
file their respective position papers on the issues
agreed upon by the parties and as reflected in the
minutes of the proceedings (Sec. 4, Rule V, NLRC,
Revised Rules of Procedure, 2005).
What is the effect of non-appearance of the
complainant/petitioner during the 2 settings for
mandatory conciliation and mediation
conference despite due notice thereof?
It shall be a ground for the dismissal of the case
without prejudice (Sec. 5, Rule V, NLRC, Revised
Rules of Procedure, 2005).
What is the effect of non-appearance of the
respondent during the 2 settings for mandatory
conciliation and mediation conference despite
due notice thereof?
The Labor Arbiter shall immediately terminate the
mandatory conciliation and mediation conference.
He shall allow the complainant or petitioner to file
his verified position paper and submit evidence in
E.
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ATTY. LIBERADOR
support of his cause of action and, thereupon render
his decision on the basis of the evidence on record.
(Sec. 5, Rule V, NLRC, Revised Rules of
Procedure, 2005)
When may a compromise agreement be
disregarded?
It can be disregarded due to vices of consent or
forgery. Also, the NLRC may disregard technical
rules of procedure in order to afford protection to
labor and to conform to the need of the working
class (Principle v. Philippine Singapore Transport
Services, GR 80918).
What is needed for an authorized person to be
able to compromise?
A special authority is needed in order for
representatives to enter into a compromise
agreement with the opposing party (Sec. 9, Rule
III, NLRC Rules of Procedure).
Can compromise agreements and executory
judgments be negotiated?
No. Final and executory judgments can no longer
be altered or be negotiated (Alaba Patio de Makati
v. NLRC, GR 85393).
When can a motion to dismiss be filed?
A motion to dismiss may be filed on or before the
date set for the mandatory conciliation and
mediation conference. (Sec. 6, Rule V, NLRC Rules
of 2005)
When may the NLRC dismiss the complaint
mutopropio based on prescription?
The dismissal of the employee’s complaint is
proper where it is apparent from its face that the
action has prescribed (Ibabao v. IAC, GR 74848).
What are the requisites of res judicata as reason
to dismiss the complaint?
a. It must be a final judgment or order
b. The court rendering the same must have
jurisdiction over the subject matter and
over the parties
c. It must be a judgment or order based on
the merits
d. There must be between the two cases
identity of parties, subject matter, and
cause of action (Delfin v. Inciong, Gr
50661)
What is the effect to the labor case of the death
of the proprietor of the company?
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The case is not extinguished because of the death
of the proprietor. (Camara Shoes v.
KapisananngmgaManggagawasaCamara Shoes,
Gr 63208-09)
What is a remedy of a party when the case is
dismissed without prejudice?
a. A party may file a motion to revive or re-
open a case dismissed without prejudice,
within 10 calendar days from receipt or
notice of the order of dismissal, otherwise,
b. Refile the case in the arbitration branch of
origin (Sec. 16, Rule V, NLRC Rules of
Procedure, 2005)
What happens after the submission by the
parties of their position paper or reply?
The case shall be deemed submitted for decision
unless the Labor Arbiter calls for a hearing or
clarificatory conference. A notice of hearing or
clarificatory conference shall be immediately sent
to the parties. (Sec. 11, Rule V, NLRC Rules of
Procedure, 2005)
What is the role of the Labor Arbiter in hearing
and clarificatory conference?
a. Take full control and personally conduct
the hearing or clarificatory conference
b. In cross-examination of witnesses, only
relevant, pertinent, and material questions
necessary to enlighten the Labor Arbiter
shall be allowed
c. Make a written summary of the
proceedings, including the substance of
the evidence presented, in consultation
with the parties. (Sec. 9, Rule V, NLRC
Rules of Procedure, 2005)
What is the effect of non-appearance of a
complainant in a hearing or clarificatory
conference?
It may be sufficient cause of dismissal without
prejudice. (Sec. 10, Rule V, NLRC Rules of
Procedure, 2005)
What is the effect of the non-appearance of the
respondent during the hearing or clarificatory
conference, despite due notice?
The complainant shall be allowed to present
evidence ex-parte, without prejudice to cross-
examination at the next hearing or conference. 2
successive non-appearance shall be construed as a
waiver on his part to present evidence or conduct
E.
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ATTY. LIBERADOR
cross-examination. (Sec. 10, Rule V, NLRC Rules
of Procedure, 2005)
How long is the hearing or clarificatory
conference?
It is terminated within 90 calendar days from the
date of initial hearing or conference.(Sec. 10, Rule
V, NLRC Rules of Procedure, 2005)
How long is given for the Labor Arbiter to
render a decision?
The Labor Arbiter is given 30 calendar days.
How long should cases involving overseas
Filipino workers be?
The aggregate period for mandatory conciliation
and mediation conference, including hearing on the
merits or clarificatory conference shall not exceed
60 days from the date the Labor Arbiter acquires
jurisdiction over the respondents. (Sec. 10, Rule V,
NLRC Rules of Procedure, 2005)
What is the due process requirement in the
NLRC?
A formal or trial-type hearing is not at all time and
in all instances essential to due process. The
requirements are satisfied where parties are
afforded fair and reasonable opportunity to explain
their side of the controversy at hand. (Llora Motors
v. Drilon, Gr 82895)
What are the grounds for a Labor Arbiter to
inhibit himself?
a. Relationship within the fourth civil degree
of consanguinity of affinity with the
adverse party or counsel
b. On question of impartiality (Sec. 12, Rule
V, NLRC Rules of Procedure, 2005)
What is the procedure for a Labor Arbiter to
inhibit himself?
The inhibition should state in writing the legal
justifications. The motion should be resolved
within 5 days from filing. An order denying or
granting a motion for inhibition is not appealable.
(Sec. 12, Rule V, NLRC Rules of Procedure, 2005)
May an NLRC Commissioner review on appeal
his own decision as a labor arbiter?
No. The officer who reviews a case on appeal
should not be the same person whose decision is
the subject of review. (Singson v. NLRC, Gr
122389)
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What is the effect of declaration of suspension of
payments under rehabilitation or bankruptcy
proceedings?
Labor claims are also suspended. (Rubberworld v.
NLRC, GR 126773)
How are pleadings filed?
Pleadings are filed with the appropriate docketing
unit of the Regional Arbitration Branch of the
Commission. A copy and supporting documents
should be served to opposing parties. (Sec. 5, Rule
III, NLRC Rules of Procedure, 2005)
When is there service by registered mail
complete?
It is complete upon the receipt by the addressee or
his agent. If the addressee fails to claim his mail
from the post office within 5 days from the date of
first notice of the postmaster, service shall take
effect after such time. (Sec. 4, Rule III, NLRC
Rules of Procedure, 2005)
To whom should service of papers be delivered
to?
It should be delivered personally to the party or
attorney or by leaving it at his office with his clerk
or with a person having charge thereof. (Sec. 4,
Rule 13, ROC)
What is the effect where the copy of the decision
is served on a person who is neither a clerk nor
one in charge of the attorney’s office?
The service is invalid and the decision does not
therefore become executory. (Adamson Ozanam
Educational Institution v. Adamson University
Faculty, GR 86819)
A motion for reconsideration cannot be filed
against the decision, resolution, or order of a
Labor Arbiter. What is the effect if such a
motion is filed?
It shall be treated as an appeal provided that it
complies with the requirements for perfecting an
appeal. (Sec. 15, Rule V, NLRC Rules of
Procedure, 2005)
When may non-lawyers appear before the
NLRC or the Labor Arbiter?
a. If they represent themselves,
b. If they represent their organization or
members thereof
What are the requirements for a substitution of
counsel?
a. Written application for substitution
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ATTY. LIBERADOR
b. Written consent of the client
c. Written consent of the attorney substituted
d. If consent is not given by the attorney,
proof of the service of notice (Philippine
Apparel Workers Union v. NLRC, 125
SCRA 391)
When is the payment of attorney’s fees
prohibited in labor proceedings and when is it
allowed?
The payment of attorney’s fees is prohibited when
it is effected through forced contributions from the
workers from their own funds.
It is allowed if it is paid using union funds. (Art.
222, LC)
What is the period of appeal for decisions of the
Labor arbiter?
It should be appealed within 10 calendar days from
receipt of such decisions, awards, or orders to the
NLRC. (Art. 223, LC)
What are the grounds of appeal?
a. Prima facie evidence of abuse of
discretion of the Labor Arbiter
b. Decision, order, or award was secured
through fraud or coercion, including graft
and corruption
c. Made purely on question of law
d. Serious errors in the findings of facts are
raised which would case grave or
irreparable injury to the appellant
What is the special requirement in case of
appeal of judgment involving monetary award?
The employer should post a cash or surety bond
issued by a reputable bonding company, duly
accredited by the NLRC in the amount equivalent
to the monetary award in the judgment appealed
from. (Art 223, LC)
What is the effect of appeal to a decision of the
Labor Arbiter in reinstating a dismissed or
separated employee in so far as the
reinstatement aspect is concerned?
It shall be immediately executory, even pending
appeal. The employee shall either be admitted back
to work under the same terms and conditions
prevailing prior his dismissal or separation or, at
the option of the employer, merely reinstated in the
payroll. (Art 223, LC)
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What is the procedure of appeal in addition to
submission to the NLRC?
The appellant shall furnish a copy of the
memorandum of appeal to the other party who shall
file an answer within 10 calendar days from
receipt.
The NLRC shall decide all cases within 20
calendar days from receipt of the answer of the
appellee.
The decision of the NLRC shall be final and
executory after 10 calendar days from receipt
thereof by the parties (Art. 223, LC)
The general rule is that after the judgment has
become final and executory, the same can
neither be amended nor altered even if the
purpose is to correct a perceived conclusion of
fact or law. What are the exceptions?
a. Correction of clerical errors
b. Making of nunc pro tuncentries which
cause no prejudice to any party
c. The judgment is void (Industrial and
Transport Equipment v. NLRC, GR
113592)
What is the effect of failure to give a copy of
appeal to the adverse party within 10 days?
The failure to give copy of appeal to the appellee
within 10 days is not fatal if the appellee was not
prejudiced by the delay in the service of the copy
of the appeal. (Murillo v. Sun Valley Realty, GR
67272)
Where are appeals filed?
The appeal is filed with the Regional Arbitration
Branch or Regional Office where the case was
heard and decided. (Sec. 3, Rule VI, NLRC Rules
of Procedure, 2005)
Dos the amount of the appeal bond include
damages and attorney’ fees?
No. It is equal only to the monetary award.
(Fernandez v. NLRC, GR 105892)
What is the effect of the appeal as to the
arbiter’s jurisdiction?
Once an appeal is filed, the Labor Arbiter loses
jurisdiction over the case. All pleadings and
motions pertaining to the appealed case shall be
addressed to and filed with the NLRC. (Sec. 9,
Rule VI, NLRC Rules of Procedure, 2005)
What are the issues tackled by the NLRC in an
appeal?
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ATTY. LIBERADOR
The NLRC shall limited to reviewing those issues
which are raised on appeal. Those not raised on
appeal are final and executor. (Roche Philippines v.
NLRC, GR 83335)
May evidence be submitted on appeal even if it
was not submitted when the case was pending
with the labor arbiter?
Even if the evidence was not submitted to the labor
arbiter, the fact that it was duly introduced on
appeal is enough basis for the NLRC to have been
more judicious in admitting the evidence, instead
of falling back on mere technicality. (PT&T v.
NLRC, GR 800600)
Note: The evidence was introduced by the
employee. Would the decision be the same if the
evidence was introduced by the employer?
What are the requirements for a motion for
reconsideration of any decision of the
Commission?
a. Based on palpable or patent errors
b. Under oath
c. Filed within 10 calendar days from receipt
of decision, resolution, or order
d. Proof of service that a copy is furnished to
the adverse party
e. Only 1 such motion shall be entertained
May a party who failed to appeal on time from
the decision of the Labor Arbiter file a motion
for reconsideration of the NLRC decision?
Yes. A party who failed to appeal from a decision
of the Labor Arbiter to the NLRC can still
participate in a separate appeal timely filed by the
adverse party by a motion for reconsideration of
the decision of the NLRC on appeal. (Sadol v.
Pilipinas Kao, GR 87530)
How are decisions of the NLRC appealed?
a. The review of the decision is made
through a special civil action for certiorari
under Rule 65
b. The jurisdiction belongs to the CA and the
SC
c. But in line with the hierarchy of courts,
the petition should be filed with the CA
(St. Martin Funeral Homes v. NLRC, GR
130866)
d. It is filed within 60 days from notice of
judgment, order, or resolution (Sec. 4,
Rule 65, ROC, as amended by AM 00-2-
03SC)
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What is the effect of the petition for certiorari
on the NLRC’s decision?
A petition for certiorari filed with the CA or SC
shall not stay the execution of the assailed decision
unless a TRO is issued. (Sec. 6, Rule VII, NLRC
Rules of Procedure, 2005)
What are the grounds for petition for
certiorari?
a. The case is decided without or in excess of
jurisdiction
b. The case is decided with grave abuse of
discretion (Pure Foods Corp v. NLRC, GR
78591)
What is the standard to determine grave abuse
of discretion?
It must be so patent and so gross as to amount to an
evasion of a positive duty or to a virtual refusal to
perform the duty enjoined or to act at all in
contemplation of law. Mere abuse of discretion is
not enough. (Solvic Industrial Corp v. NLRC, GR
125548)
What are the effects of irregularities in the
certification for non-forum shopping?
Failure to comply with the requirements
concerning the certification against forum shopping
shall be cause for dismissal without prejudice.
The submission of a false certification or non-
compliance with any undertakings shall constitute
indirect contempt of court. If it is willful and
deliberate, it is ground for summary dismissal with
prejudice and shall constitute contempt and cause
administrative sanctions. (Canuto v. NLRC, GR
110914)
Who must make the certification for non-forum
shopping?
It must be made by the petitioner himself and not
by counsel. This is in contrast to verification which
may be made by an attorney.(Santos v. CA, GR
141947)
When may the certification for non-forum
shopping be made by an authorized lawyer who
has personal knowledge of the facts required to
be disclosed?
It may be done if the party is a juridical person.
(BA Savings Bank v. Sia)
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What is the mode for review of the decision of
the CA?
It is a petition for review under Rule 45 of ROC,
which can raise only questions of law. It must be
filed within 15 days from notice of judgment, final
order, or resolution. (Azucena, p. 143)
What is the whole processes in labor cases?
Conciliation/ Mediation
30 days
Clarificatory conference
Overseas Filipino
(optional) 90 days
Workers, 60 days
Labor Arbiter Decision
within 30 days
Appeal to NLRC 10
a. Prima facie evidence of abuse of
discretion of the Labor Arbiter
b. Decision, order, or award was secured
through fraud or coercion, including graft
and corruption
c. Made purely on question of law
d. Serious errors in the findings of facts are
raised which would case grave or
irreparable injury to the appellant.
NLRC 20 days to decide
Motion for Reconsideration within 10 days
a. Based on palpable or patent errors
b. Under oath
c. Filed within 10 calendar days from receipt
of decision, resolution, or order
d. Proof of service that a copy is furnished to
the adverse party
e. Only 1 such motion shall be entertained
or SCA for certiorari under Rule 65 within
60 days
f. The case is decided without or in excess of
jurisdiction
g. The case is decided with grave abuse of
discretion
Petition for Review to SC under rule 45 within 15
days
a. Question of law
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Who may issue a writ of execution for final
decisions, orders, or awards promulgated by
them?
a. Secretary of Labor and Employment
b. DOLE Regional Director
c. NLRC
d. Labor Arbiter
e. Med-Arbiter
f. Voluntary Arbiter
g. Panel of Arbitrators (Art 224, LC)
When may a writ of execution be issued?
It is issued within 5 years from the date a judgment
becomes final and executor, after the expiration of
the period of the appeal if no appeal has been filed.
(Art. 224, LC)
To whom should a writ of execution be served?
In labor cases, both the party and its counsel must
be duly served their separate copies of the order,
decision, or resolution. This is unlike in an ordinary
judicial proceeding where notice to counsel is
deemed notice to the party. (PNOC Dockyard and
Engineering Corp v. NLRC, GR 118223)
What is the pre-execution conference?
Within 2 working days from receipt of a motion for
the issuance of a writ of execution, the Labor
Arbiter shall schedule a pre-execution conference
or hearing to thresh out matters relevant to
execution, including the computation of the award.
(Sec. 2, Rule XI, NLRC Revised Rules of
Procedure, 2005)
What are the form and contents of a writ of
execution?
It must be issued in the name of the Republic of the
Philippines, signed by the Commission or Labor
Arbiter, requiring the Sheriff to execute the
decision, order, or award. It must contain the
dispositive portion. The amount to be demanded
and all lawful feels to be collected. (Sec. 3, Rule
XI, NLRC Revised Rules of Procedure, 2005)
How is the execution of monetary judgment
made?
First, the Sheriff shall demand the immediate
payment of the full amount from the person obliged
to pay. In failure or refusal, the Sheriff shall
immediately proceed against the cash deposit or
surety bond posted. If it is insufficient or cannot be
proceeded against, the Sheriff, within 5 days from
demand, shall levy the property, not exempt from
execution, of the losing party. The proceeds are
deposited with the Cashier of the division or
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regional arbitration branch.(Sec. 5, Rule XI, NLRC
Revised Rules of Procedure, 2005)
What may be done if the 5 year period to file the
writ of execution has lapsed?
The judgment, in such case, may only be enforced
by an independent action within 10 years from date
of finality. (Sec. 8, Rule XI, NLRC Revised Rules of
Procedure, 2005)
What is the effect of a petition for certiorari as
to the execution?
It does not stay the execution of the assailed
decision unless a restraining order is issued by the
courts.
May the manner of execution be appealed?
Yes. While the decision itself has become final and
executory, it must be enforced in accordance with
its terms and conditions. Any deviation therefrom
can be subject of a proper appeal. (Abbott v. NLRC,
145 SCRA 206)
What are the remedies available to a person
who alleges ownership over a property that is
subject to a writ of execution?
a. File a third party claim with the sheriff or
Labor Arbiter
b. If the claim is denied, the third party may
appeal to the NLRC
c. A proper action with a competent court to
recover the ownership of the property may
be made
The above remedies are cumulative and may
be resorted to by a third party claimant
independent of or separately from and without
need of availing of the others. (Yupanco
Cotton Mills v. CA, GR 126322)
May an RTC issue an injunction against the
Labor Arbiter or NLRC in execution of its
decision or order?
When a third-party, or a stranger to the action,
asserts a claim over the property levied upon, the
claimant may vindicate his claim by an
independent action in the proper civil court which
may stop the execution of the judgment on property
not belonging to the judgment debtor. (Yupanco
Cotton Mills v. CA, GR 126322)
Does a third party claim on a levied property
automatically prevent execution?
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No. The execution is not automatically lifted
andrestrained just because a third-party claim has
been filed. The claim should also be supported by
evidence. (Tanongon v. Samson, GR 140889)
What are the function of the Bureau of Labor
Relations?
a. The BRL shall set policies, standards, and
procedures on the registration and supervision
of legitimate labor union activities.
b. It shall set policies, standards, and procedures
relating to collective bargaining agreements,
and the examination of financial records of
accounts of labor organizations to determine
compliance with relevant laws
c. Provide proper orientation to workers on their
schemes and projects for improvement of the
standards of living of workers and their
families. (Sec. 16, 1987 Administrative Code)
Who should file a complaint involving
intra/inter-union disputes?
It should be filed by a legitimate labor organization
or its members.
How are appeals to the BLR made?
The decision of the Med-Arbiter and Regional
Director may be appealed to the Bureau by any of
the parties within 10 days from receipt thereof,
copy furnished the opposing party.
It should be verified under oath, consists of a
memorandum of appeal stating the grounds relied
upon with supporting arguments and evidence.
It is filed in the Regional Office or Bureau. (Sec.
16, 17, DO 40-03)
Should conciliation in barangay courts be
required for labor disputes?
No. Katarungang Pambarangay is not applicable to
labor disputes. (Montoya v. Escayo, GR 82211-12)
What is the basic requirement for compromise
settlement involving labor standard laws?
It requires the assistance of the BLR or regional
office of DOLE. (Art. 227, LC)
What are the grounds for the NLRC or any
court to assume jurisdiction over the issues in a
compromise settlement?
a. Noncompliance
b. Prima facie evidence that the settlement
was obtained through fraud,
misrepresentation, or coercion (Art. 227,
LC)
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What are the formal requirements in a
compromise agreement?
It must be reduced in writing and signed in the
presence of the Regional Director or his duly
authorized representative. A special power of
attorney is required before an agent can be
authorized to enter into a compromise. (Union of
Filipino Workers v. NLRC, GR 90519)
May an employee impugn the validity of a
compromise or quitclaim on the ground that
such employee was constrained to accept it due
to extreme necessity?
No. Dire necessity is not an acceptable ground for
annulling the releases, especially when it has not
been shown that the employees had been forced to
execute them or if the consideration was
unconscionably low that they were tricked into
accepting them. (Veloso and Liguaton v. DOLE,
GR 87297)
Are employees deemed to have ratified the
compromise agreement when 102 of the 114 of
other affected employees have already availed of
and received the benefits under the said
agreement?
No. Waivers must be regarded as a personal right
which must be exercised personally by the workers
themselves. The individual consent or ratification
of the workers or employees involved must be
shown. (Jag & Haggar Jeans and Sportswear Corp
v. NLRC, GR 105710)
May compromise be made even after final
judgment?
Yes. Rights may be waived through a compromise
agreement, notwithstanding a final judgment that
has already settled the right of the contracting
parties. (Magbanua v. Uy, GR 161003)
Is the absence of the labor arbiter fatal to the
validity of the compromise agreement?
No. If the arbiter made searching question during
the pre-execution conference to ascertain free and
intelligent choice, and if the content were explained
to the parties, the labor arbiter’s absence when
those waivers were executed does not invalidate
them. (Magbanua v. Uy, GR 161003)
What are the remedies of a party when the other
party fail or refuse to comply with the terms of a
compromise or amicable settlement?
a. Enforce the compromise by a writ of
execution
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b. Regard it as recinded and so insist upon
the original demand (Morales v. NLRC,
GGR 100133)
What is the effect of registration or certification
of the BLR of the CBA?
Registration or certification by the BLR is not a
requisite for its validity. However, it is needed so
that the contract-bar rule under 232 may come into
play. (Azucena, p. 175)
What is the contract-bar rule under Art.232,
LC?
While a valid and registered CBA is subsisting, the
BLR is not allowed to hold an election contesting
the majority status of the incumbent union. It is the
Med-Arbiters in the DOLE regional offices that
hear petitions for certification election. (Azucena,
p. 175)
What are the requirements for a labor
organization to be issued a certificate of
registration?
a. Registration fee - P50
b. Names of officers, information, minutes of
meetings, participant in meetings
c. If independent union, names of members
of 20% of bargaining unit
d. Annual financial reports
e. Constitution and by-laws (Art 234, LC)
How are local chapters created?
A duly registered federation or national union may
create a local chapter by issuing a charter
certificate indicating the establishment of a local
chapter. It shall acquire legal personality only for
purposes of filing a petition for certification
election. (Art 234-A, LC)
How long is given for the BLR to act on an
application for registration?
The BLR is given 30 days from filing to act on an
application. (Art 235, LC)
How are denials of registration made by the
Labor Relations Division in the regional office
appealed?
It is appealed to the BLR within 10 days from
receipt of notice thereof. (Art 236, LC) From there,
it can be appealed to the CA.
What are additional requirements for
federations and national unions?
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ATTY. LIBERADOR
a. Proof of affiliation of at least 10 locals or
chapters, each of which must be a duly
recognized collective bargaining agent,
supporting the registration
b. Names of the companies where the local
chapters operate, list of members
What are Labor Organizations?
They are any union or association of employees in
the private sector which exists for collective
bargaining, mutual aid, interest, cooperation,
protection, and other lawful purposes
What are Legitimate Labor Organizations?
They are labor organizations in the private sector
that are registered or reported with the DOLE.
What are Unions?
They are labor organizations in the private sector
organized for collective bargaining and for other
legitimate purposes.
What is an Exclusive Bargaining
Representative?
It is a legitimate labor union duly recognized or
certified as the sole and exclusive bargaining
representative or agent of all the employees in a
bargaining unit.
What is a Workers’ Association?
It is an association of workers organized for the
mutual aid and protection of its members or for any
legitimate purpose other than collective bargaining.
What is the difference between collective
bargaining and dealing with the employer?
To bargain collectively requires registration by the
DOLE and being recognized and certified by the
DOLE as the exclusive bargaining representative of
the employees.
Dealing with the employer is a generic description
of interaction between employer and employees
concerning grievances, wages, work hours, and
other terms and conditions for employment, even if
not registered. (Azucena, p. 180)
What is a National Union/Federation?
It is any labor organization with at least 10
locals/chapters or affiliate, each of which must be a
duly certified or recognized collective bargaining
agent.
What is an industry union?
It is any group of legitimate labor organization
operating within an identified industry, organized
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for collective bargaining or for dealing with
employers concerning terms and conditions for
employment within an industry, which is duly
registered.
What is a trade union center?
It is 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 participating in formulation of
employment standards, etc.
What is an alliance?
It is an aggregation of unions, existing in one line
of industry, or in a conglomerate, franchises,
geographical area, industrial center. It does not
represent its members in CBA negotiations.
What is a company union?
It is a labor organization which, in whole or in part,
is employer-controlled or employer-dominated. It
is prohibited.
When is a labor union independent and when is
it a chapter?
It is independent if it is created by independent
registration and has a legal personality of its own.
It is a chapter if it is created through chartering.
Chartering takes place when a duly registered
federation or national union issues a charter to a
union and registers the creation of the chapter in
the Regional Office.
When does the 20% initial membership
requirement for registration apply?
It applies only to an independent labor union, not a
local chapter (Art 234, LC).
What are the grounds to cancel a union’s
registration?
a. Falsehood about the CBL,
b. Falsehood about the election of officers
c. Voluntary dissolution
What is the effect of failure to submit
adoption/amendments to CBL, election of
officers, annual financial reports, or annual list
of members?
Non-submission of these requirements is no longer
a ground to cancel registration, but the erring
officer may be punished even by expulsion. (Art
242-A, LC)
What is the effect of commingling of supervisors
and rank and file in one union?
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ATTY. LIBERADOR
It is not a ground to cancel union registration but
the excludible member is automatically deemed
removed from the list. (Art. 245-A, LC)
What is the role of the employer in the
registration?
His participation is limited to being informed about
the petition and to being required to submit a list of
employees. (Art. 258-A, LC)
What is the effect of not being registered?
While it can still deal with them employer, it has no
legal personality to demand collective bargaining
the employer. It cannot petition for a certification
election, it cannot hold a strike (Azucena, p. 185).
Where is the application for registration filed?
Application for registration of independent labor
unions, chartered locals, and workers’ association
is filed with and acted upon by the Regional Office
where the applicant principally operates.
Applications for federations, national unions,
workers association operating in more than one
region shall be filed with the BLR or Regional
offices, but shall be process and acted upon by the
BLR which has national jurisdiction (Azucena, p.
186).
When does a chapter acquire legal personality?
It acquires legal personality on the date it was
issued a charter certificate by its mother federation
or national union. However, it shall be only for
purposes of filing a petition for a certification
election. (Art. 234-A, LC)
May a trade union center create a chapter?
No. Only duly registered federations or national
unions may create chapters. (Art. 234-A, LC)
Is registering a union a ministerial function?
No. The BLR must check if requirements under
Art. 234 have been complied with or if the
application is vitiated by falsification and serious
irregularities and deny application if necessary.
(Progressive Development Corp v. Laguesma, GR
115077)
When may the legitimacy of a union be
questioned?
It may be questioned only through an independent
petition for cancellation of union registration. (Sec.
8, Rule IV, DO 40-03)
What is a bargaining unit?
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It is a group of employees sharing mutual interests
within a given employer unit, compromised of all
or less than all of the entire body of employees in
the employer unit or any specific occupational or
geographical grouping within such employer unit.
(Implementing Rules, Book V, Rule I, Sec. I)
How are CBU and union different from each
other?
CBU is bigger than a union. Union members come
from the CBU and there can be several rival unions
within a CBU. The representative union, once
determined, will represent even the members of
other unions as long as they are part of the CBU.
(Azucena, p. 193)
To whom should appeals be filed?
The denial of the regional office may be appealed
to the BLR and then to the CA. If the denial
originated at the BLR, the appeal is to the secretary
of labor. (Azucena, p. 197)
What is an affiliate?
It is an independently registered union that enters
into an agreement of affiliation with a federation or
a national union. It also refers to a chartered local
which applies for and is granted an independent
registration but does not disaffiliate from its mother
federation or national union.
What limits the right of a local union to
disaffiliate?
It is subject to restraints imposed by the
constitution and by-laws of the national federation.
(Phil Skylanders v. NLRC, GR 127374)
When may a union disaffiliate?
It may be done only during the 60-day freedom
period immediately preceding the expiration of the
CBA. (Tanduay Distillery Labor Union v. NLRC,
149 SCRA 470)
What is the vote required for disaffiliation?
It required the approval of majority of the entire
membership. (Art. 241, LC)
What is the effect of disaffiliation on the legal
status of the union?
It is not entitled to the rights and privileges granted
to a legitimate labor organization. It cannot file a
petition for certification election (Villar v. Inciong,
121 SCRA 444).
What is the effect of disaffiliation on an existing
CBA?
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ATTY. LIBERADOR
The CBA continues to bind the members of the
new or disaffiliated and independent union up to
the CBA’s expiration date. (Associated Workers
Union-PTGWO v. NLRC, GR 87266-69)
What is the effect of cancellation of registration
of a federation or national union?
It shall divest its locals/chapters of their status as
legitimate labor organizations, unless the
locals/chapter are covered by a duly registered
CBA. In such case, they are allowed to register as
independent unions, failing which, they shall lose
their legitimate status upon the expiration of the
CBA. (Sec. 6, Rule VII, Rook V, Implementing
Rules)
Where is a notice of merger or consolidation of
labor organization filed?
It is filed with and recorded by the Regional Office
that issued the certificate of registration or
certificate of creation of chartered local of either
the merging or consolidating labor organization.
Notice of merger or consolidation shall be filed
with and recorded by the BLR. (Sec. 8, Rule III,
DO 40-03)
What documents are needed along with the
notice of merger or consolidation?
a. Minutes of merger/consolidation
convention or general membership
meeting of all merging/consolidating labor
organizations, with list of their respective
members who approved
b. Amended constitution and by-laws and
minutes of its ratification, unless
ratification transpired in the
merger/consolidation convention, which
fact shall be indicated accordingly
What are the requirements for the voluntary
cancellation of the registration of a labor
organization?
a. Approval of 2/3 of its membership
through a meeting duly called for that
purpose and voted upon through secret
balloting
b. Application to cancel the registration is
submitted by the board of the
organization, attested to by the President
(Art. 239-A, as amended by RA 9481)
Who may file a petition for cancellation of a
union’s registration?
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Any party-in-interest may commence a petition for
cancellation of a union’s registration. (Sec. 2, Rule
XIV, DO 40-03)
Is the employer considered a party-in-interest
for a petition for cancellation of a union’s
registration?
Yes. (Progressive Development Corp v. Secretary
of Labor, GR 96425)
Where is a petition for cancellation of
registration filed?
The registration of any legitimate independent
labor union, chartered local and worker’s
association may be cancelled by the Regional
Director.
In the case of federations, national or industry
unions and trade union centers, by the Bureau
Director upon filing of an independent complaint or
petition for cancellation. (Sec. 1, Rule XIV, DO 40-
03)
To whom are decisions for cancellation of
registration appealed?
Cancellation orders issued by the Regional Director
are appealable to the BLR. Its decision is final and
executory but may be appealed to the CA by
certiorari.
BLR decisions on cancellation cases that originate
from the BLR itself may be appealed to the
Secretary of Labor and again, by certiorari to the
CA(Abbott Laboratories Phil v. Abbot
Laboratories Employees Union, GR 131374).
How and when are union officers elected?
They are elected by secret ballot, at intervals of 5
years. (Art. 241 (c), LC)
What are the qualification requirements for
candidacy for a position in the union?
There is no other qualification requirement for
candidacy other than membership in good standing
in the subject labor organization. (Art. 241 (c), LC)
As a general rule, questions of major policy
affecting the entire membership of the
organization shall be determined by secret
ballot. What is the exception?
If the nature of the organization or force majeure
renders such secret ballot impractical, the board of
directors of the organization may make the decision
in behalf of the general membership. (Art. 241 (d),
LC)
When may the union funds be validly spent?
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ATTY. LIBERADOR
a. Expressly provided in the constitution and
bylaws
b. Written resolution adopted by the majority
of the members at a general meeting duly
called for the purpose (Art. 241 (i), LC)
What are the financial reportorial requirements
of unions?
Every income or revenue of the organization shall
be evidenced by a record showing its source. Every
expenditure shall be evidenced by a receipt from
the person to whom payment was made, which
shall state the date, place and purpose of such
payment. It forms part of the financial records of
the organization. (Art. 241 (j), LC)
What is the statute of limitations for actions
involving the funds of the organization?
Such actions prescribe after 3 years from the date
of submission of the annual financial report to the
DOLE or from the date the same should have been
submitted as required by law, whichever comes
earlier. (Art. 241 (j), LC)
What are the sources of compensation for
officers?
a. Salaries and expenses due to their
positions as provided in the constitution
and bylaws
b. In a written resolution authorized by
majority of all the members at a general
membership meeting duly called for the
purpose, with minutes and list of
participants subject to inspection by
Secretary of labor (Art. 241 (k), LC)
When should rendering of accounts be made?
a. At least once a year within 30 days after
the close of the fiscal year
b. At other such times as may be required by
a resolution of majority of the members of
the organization
c. Upon vacating the office
When are books of accounts and other records
of financial activities open to inspection?
They are open to inspection by any officer or
member during office hours. (Art. 241 (m), LC)
What are the requirements for assessments or
other extraordinary fees?
a. Written resolution of a majority of the
members at a general meeting duly called
for the purpose
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b. Secretary of the organization, record the
minutes of the meeting, list of members
present, votes cast, purpose of the special
assessment or fees and recipient of such
assessment or fees
c. Record to be attested to by the president
(Art. 241 (n), LC)
In general, what are the rights of union
members under Art. 214?
a. Political right
b. Deliberate and decision-making right
c. Right over money matters
d. Right to information (Azucena, p. 217)
Does membership in the union necessarily mean
coverage in the CBA?
No. It depends on the provisions of the CBA.
(Azucena, p. 218)
In the absence of any provision in the CBA,
what is needed before an election of union
officers may be done?
The incumbent president is to create an election
committee within 60 days before expiration of the
incumbent officer’s term. (Book V, Implementing
Rules)
What is the remedy if the officers with expired
term do not call an election?
30% of the members could file a petition with the
DOLE Regional Office. (Rule XII, Implementing
Rules)
May disgruntled union members hold an
election in violation of the constitution and
bylaws of the union?
No. Members’ frustration over the performance of
the union officers, as well as their fear of a
fraudulent election to be held under the latter’s
supervision, does not justify disregard of the
union’s constitution and bylaws (UST Faculty
Union v. Bitonio, GR 131235).
What is the effect of voting by nonunion
employees?
They are to be considered ipso facto union
members. Submission of the employees’ name with
the BLR as qualified members of the union is not a
condition sine qua non to enable the said members
to vote in the election of union officers. (Tancinco
v. Pura Ferrer-Calleja, GR 78131)
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ATTY. LIBERADOR
What is the ground for disqualification of union
officers?
a. Conviction of a crime involving moral
turpitude (Art. 241 (f), LC)
b. Belongs to a subversive organization or
who is engaged directly or indirectly in
any subversive activity. (Art. 241 (e), LC)
What is the remedy against erring union
officers?
The remedy is not referendum but union expulsion.
(Kapisanan ng Manggagawang Pinagyakap v.
Trajano, 134 SCRA 236)
What is the minimum requirement in
impeachment of an officer?
There should be substantial compliance with
impeachment procedure according to union
constitution or bylaws, giving the officer an
opportunity to be heard. (Litton Mills Employees
Association-kapatiran v. Ferrer-Calleja, GR L-
78061)
When may a member be expelled from the
union?
The member should be expelled only for valid
cause, following the procedure outlined in the
constitution and bylaws of the union. (Kapisanan
ng mga Manggagawa sa Manila Railroad Co. v.
Bugay 101 Phil. 18)
As a general rule, there should be exhaustion of
remedies within the union itself, what is the
exception?
The exception is that if the exhaustion of remedies
within the union itself would practically amount to
a denial of justice, it would not be insisted upon, as
a condition to the right to invoke the aid of a court.
(Kapisanan ng mga Manggagawa sa MMR v.
Hernandez, 20 SCRA 109)
When may the Secretary of Labor and
Employment or his duly authorized
representative inquire into the financial
activities of any labor organization?
It should be on the basis of a complaint under oath,
supported by 20% of the membership. (Art 274,
LC)
What is check-off?
It is a method of deducting from an employee’s pay
at a prescribed period, the amounts due the union
fees, fines, or assessments. (Azucena, p 229)
What are assessments?
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Payments used for a special purpose, especially if
required only for a limited time, are regarded as
assessment.
When is individual consent of employees needed
for check off for certain fees?
Other than for mandatory activities under the LC,
no special assessment, attorney’s fees, negotiation
fees, or any other extraordinary fee may be checked
off from any amount due an employee without
individual written authorization duly signed by the
employee. (Art. 241, LC)
Is compulsory arbitration a mandatory activity
under the Labor Code as to dispense with
individual written authorization for check offs?
No. (Galvadores v. Trajano, GR 70067)
What is the effect of failure of the union to
strictly comply with the requirements of Art.241
for special assessments?
The failure of the union to comply strictly with the
requirements of law invalidates the questioned
special assessment. Substantial compliance is not
enough. (Palacol v. Pura Ferrer-Calleja, GR
85333)
What is the effect of withdrawal of
authorizations by the members?
Withdrawal of authorization is equivalent to no
authorization at all. (Palacol v. Pura Ferrer-
Calleja, GR 85333)
What are the requisites to collect special
assessment?
a. Authorization by a written resolution of
the majority of all the members at the
general membership meeting duly called
for the purpose
b. Secretary’s record of the minutes of the
meeting
c. Individual written authorization for check
off duly signed by the employee
concerned. (ABS-CBN Supervisors
Employees Union Members v. ABS-CBN,
GR 106518)
What is the agency fee?
It is an amount, equivalent to union dues, which a
nonunion member pays to the union because he
benefits from the CBA negotiated by the union. In
negotiating the CBA, the union served as the
employee’s agent. (Azucena, p. 233)
What is the employer’s liability in check-off
arrangements?
E.
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ATTY. LIBERADOR
The employer’s failure to make the requisite
deductions may constitute a violation of a
contractual commitment for which it may incur
liability for unfair labor practice. However, the
employer does not, by that omission, incur liability
to the union for the aggregate of dues or
assessments uncollected from the union members
or agency fees for non-union employees. (Holy
Cross of Davao College v. Joaquin, GR 11007)
Who has jurisdiction over check-off disputes?
The Regional Director of DOLE has jurisdiction
over check-off disputes. It is not a money claim
against the employer but against the union over
which the labor arbiter has no jurisdiction.
(Philippine National Construction Corp. v. Ferrer-
Calleja, 167 SCRA 294)
Can workers who are not employees of any
particular employer form their own
organization to protect their interest?
Yes. Ambulant, intermittent and itinerant workers,
self-employed people, rural workers and those
without any definite employers may form labor
organization for their mutual aid and protection.
(Art. 243, LC)
Can the right to organize be curtailed by a
CBA?
No. The right to self-organization must be upheld
in the absence of an express provision of law to the
contrary. (Southern Philippines Federation of
Labor v. Calleja, GR 80882)
May rank and file employees of nonprofit
medical institutions form and organize or join
labor unions for the purpose collective
bargaining?
Yes. (FEU-Dr. Nicanor Reyes Medical
Foundation, Inc. v. Trajano, GR 76273)
Are employees of cooperatives allowed to
collectively bargain?
An employee of such cooperative who is a member
and co-owner thereof cannot invoke the right to
collectively bargain.
However, if it involves cooperatives with
employees who are not members or co-owners
thereof, such employees are entitled to exercise the
rights of all workers to organization, collective
bargaining negotiations and others. (San Jose
Electric Service Cooperative, Inc. v. Ministry of
Labor, GR 77231)
What is a remedy of a member of the
cooperative who wishes to join a union?
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Member-employees of a cooperative may withdraw
as members of the cooperative in order to join a
labor union. (Central Negros Electric Corp. v. Sec.
of Labor, GR 94045)
What may members of cooperative organize
without withdrawing as members?
The law does not prohibit them from forming an
association for their mutual aid and protection.
(NEECO Employees Association v. NLRC, GR
116066)
May a certification election be conducted in an
international organization which the Philippine
Government has granted immunity from local
jurisdiction?
No. (International Catholic Migration Commission
v. Calleja, GR 85750)
As a general rule, foreigners are strictly
prohibited from engaging directly or indirectly
in all forms of trade union activities. What is the
exception?
Aliens working in the country with valid work
permits may exercise the right of self-organization
if they are national of a country that grants the
same or similar rights of Filipino workers. (Art.
269, LC)
Under a “closed shop” agreement, employees
are compelled to become union workers as a
condition of continued employment. Who may
not be covered under such an agreement?
Exempt from compulsory union membership are
the followers of any religious sect whose teachings
forbid membership in labor unions. (Kapatiran Sa
Meat and Canning Division v. Calleja, GR L-
82914)
May employees of government corporations
organize and bargain collectively?
Employees of government corporations established
under the Corporation Code shall have the right to
organize and bargain collectively with their
employers.
All other employees in the civil service shall have
the right to form associations for purposes not
contrary to law. (Art. 244, LC)
E.
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ATTY. LIBERADOR
What are the terms of employment that may not
be negotiated by government employees of those
with original charter?
a. Those that are fixed by law
b. Those that require appropriation of funds
c. Those that involve the exercise of
management prerogatives (Azucena, p.
251)
Who are the government employees who are not
allowed to join unions?
Members of the Armed Forces of the Philippines,
including police officers, policemen, firemen, and
jail guards are not allowed to unionize. (Sec. 4, EO
180)
High level employees whose functions are
normally considered as policy making or
managerial, or whose duties are highly confidential
are not eligible to join the organization of rank and
file government employees. (EO 180)
May professors organize into a union?
Yes. Professors who are not exercising managerial
or highly confidential functions are rank and file
employees and may unionize separately from the
non-academic personnel. (UP v. Calleja, GR
96189)
Where will the government employees’
organization register?
They must register with the Civil Service
Commission and the Department of Labor and
Employment. The application shall be filed with
the BLR or the regional Department of Labor and
Employment. (Sec. 7, EO 180)
Are certification elections in government
corporations restricted only to those without
original charter?
No. a certification election to choose the union that
will represent the employees may be conducted by
the BLR in a government corporation, whether
governed by the Labor Code or the Civil Service
Rules. (University of Life Foundation v. BLR, GR
85050)
Does the BLR have jurisdiction to call for and
conduct the election of officers of an employee’s
association in the public sector?
Yes. Election of officers and members of the board
is an intra-union conflict which is within the
jurisdiction of the BLR. (Bautista v. CA, GR
123375)
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Who has jurisdiction to hear charges of unfair
labor practice filed by government employees?
The Public Sector Labor-Management Council has
jurisdiction. (Pamantasan ng Lungsod ng Maynila
v. Civil Service Commission, GR 107590)
May temporary employees organize?
Yes. Temporary employees enjoy the basic right to
form organization or association for purposes not
contrary to law. (Pamantasan ng Lungsod ng
Maynila v. Civil Service Commission, GR 107599)
Managerial employees may not form unions.
May they form labor associations?
No. They are not eligible to join, assist or form any
labor organization. (Art. 245, LC)
What are the limits for labor organizations of
supervisory employees?
They are not eligible for membership in the
collective bargaining unit of the rank and file
employees but may join, assist or form separate
collective bargaining units and/or legitimate labor
organizations of their own.
They may join the same federation or national
union of the rank and file employees of the same
establishment. (Art. 245, LC)
What is the effect of inclusion of employees
outside the bargaining unit as members?
Such employees are automatically deemed
removed from the list of membership of the said
union. (Art. 245-A, LC)
Who are considered managers?
They are those who have authority to devise,
implement and control strategic and operational
policies. (United Pepsi-cola Supervisory Union v.
Laguesma, GR 122226)
Who are considered supervisory?
They are those whose task is simply to ensure that
such policies are carried out by rank and file
employees of an organization. (United Pepsi-cola
Supervisory Union v. Laguesma, GR 122226)
What should be the coverage of the power to
recommend in order to be considered
supervisory?
The power to recommend must not be merely
routinary or clerical in nature but requires the use
of independent judgment. It should be
discretionary, independent, effective. (National
Merchandising Corp. v. CIR, GR L-18710)
E.
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ATTY. LIBERADOR
Confidential employees cannot form, join or
assist rank and file unions. They cannot even be
made to pay agency fees or be subjected to
union security clause since they are not part of
the bargaining unit. Who are confidential
employees?
They are those who by reason of their positions or
nature of work, are required to assist or act in a
fiduciary manner to managerial employees and
hence, are likewise privy to sensitive and highly
confidential records. (Metrolab Industries v.
Confesor, GR 108855)
They are those who 1) assist or act in a confidential
capacity, 2) to persons who formulate, determine,
and effectuate management policies in the field of
labor relations. (San Miguel Corp. Supervisors and
Exempt Union v. Laguesma, GR 110399)
What is the policy behind the exclusion of
confidential employees?
In the normal course of their duties, confidential
employees become aware of management policies
relating to labor relations. It must be stressed,
however, that when the employee does not have
access to confidential labor relations information,
there is no legal prohibition against confidential
employees from forming, assisting, or joining a
union. (Sugbuano Rural Bank v. Laguesma, GR
116194)
May a new CBA include in its coverage
employees that were excluded under the old
CBA?
Yes. The employer and the union in an enterprise
may negotiate and agree as to whom to cover in
their CBA. They are free to change their
agreement. (De la Salle University v. DLSUEA, GR
109002)
May security guards join unions?
Yes. They may freely join a labor organization of
the rank and file or that of the supervisory union.
(Manila Electric Co. v. Secretary of Labor, GR
91902)
What are the minimum requirements of the
right to self-organization?
a. Right to form, join or assist labor
organizations
b. Right to engaged in lawful concerted
activities (Art. 246, LC)
Are concerted activities necessarily strikes?
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No. It is not necessarily a work stoppage or strike

because it may be done during off-hours. (Azucena,
p. 279)

Who has jurisdiction over the civil aspects of

cases involving unfair labor practices?
It is under the jurisdiction of the Labor Arbiters,
subject to the exercise by the President or by the
Labor Secretary of the powers vested in them under
Art 263, 264. (Art. 247, LC)

When can there be a criminal prosecution for

unfair labor practice?
First, there should be a final judgment, finding that
an unfair labor practice was committed. However,
the final judgment in the administrative proceeding
shall not be binding in the criminal case nor be
considered as evidence of guilt but merely as proof
of compliance of the requirements set forth. (Art.
247, LC)

What are the elements of unfair labor practice?

a. Employer-employee relationship
b. Act done is expressly defined in the Code
as an act of unfair labor practice
(Azucena, p. 283)

Is promoting an employee not on the basis of

merits be considered as ULP?
No. While it may be bad human resource
management, it does not amount to ULP. (Philcom
Employees Union v. Philippine Global
Communications, GR 143315)

Is prejudice to public interest necessary for

there to be ULP?
No. It is not a requisite for ULP charges no prosper
(Standard Chartered Bank Employees Union v.
Confessor, GR 114974).

E.
CHUA
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Who has jurisdiction over criminal charges
involving ULP?
They are under the concurrent jurisdiction of the
Municipal or Regional Trial Court. (Art. 288, LC)
What is the prescription of ULP charges?
It prescribes in one year (Art. 290, LC).
As a general rule, it is the prerogative of the
company to promote, transfer or even demote
its employees to other positions when the
interest of the company reasonable demands it.
What is the exception?
The exception is if there are instance which directly
point to interference by the company with the
employee’s right to self-organization. Such cases
will be considered ULP. (Rubberworld v. NLRC,
GR 75704)
Can promoting its employees be considered
ULP of the employer?
No. A promotion which is manifestly beneficial to
the employee should not give rise to a gratuitous
speculation that such a promotion was made simply
to deprive the union of the membership of the
promoted employee. (Bulletin Publishing
Corporation v. Sanchez, GR 74425)
Is acceptance of Mass Resignation ULP?
Mass resignation is not concerted activity which is
protected by law. Hence, the employer did not
commit ULP by accepting the mass resignation.
(Enriquez v. Zamora, GR 511382)
Is there ULP when non-union members were
covered by a profit sharing agreement with
management while the union members were
excluded?
No. There is no discrimination as the situation of
the union employees is different from that of the
nonunion employees if such discrimination is done
in good faith. Union members derive their benefits
from the terms and conditions of the CBA. (Wise
and Co v. Wise and Co Employees Union, GR
87672)
Is vacation leave without pay, which the
employer requires employees to take in view of
the economic crisis ULP?
No. If only temporary, and with notice and
consultation with the workers, it will be considered
as valid management prerogative. (Philippine
Graphic Arts v. NLRC, GR L-80737)
E.
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ATTY. LIBERADOR
Persistent interrogation of employees to elicit
information as to union activities may constitute
a violation of the organizational rights of the
employees? What must the employer do to avoid
this?
a. Communicate to the employee the purpose
of the questioning
b. Assure the employee that no reprisal
would take place
c. Obtain participation in a voluntary basis
d. Questioning is free from employer
hostility, not coercive (International
Union of Operating Engineers v. NLRB,
353 f2d 852)
Can there be ULP even before a Union is
registered?
Yes. An employer who interfered with the right to
self-organization before the union is registered can
be held guilty of ULP. (Samahan ng mga
Manggagawa sa Bandolino-LMLC v. NLRC, GR
125195)
As a rule, the employer may prohibit solicitation
of union membership in company property.
What is the exception?
Where majority of the employees live on the
premises of the employer and cannot be reached by
any means or procedures practically available to
union organizers, the employer may be required to
permit non-employee union organizers to come
within its premises, in order to solicit employees.
(Fanfnir Bearing Co. v. NLRB, 362 F2d7 16)
Is the illegal dismissal of an employee
automatically ULP?
No. In the absence of showing that the illegal
dismissal was directed by anti-union motives, it is
not ULP. The remedy is an action for reinstatement
with backwages and damages. (AHS/Philippine
Employees Union v. NLRC, GR 87321)
What is the test to determine if the employer has
interfered with and coerced employees in their
right to self-organization?
The test is whether the employer has engaged in
conduct which it may reasonably be said tends to
interfere with the free exercise of employees’ right.
It is not necessary that there be direct evidence. It
should be read in light of the preceding and
subsequent circumstances.(Insular Life Assurance
Co. Employees Association-ATU v. Insular Life
Assurance Co.)
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When is mass layoff amount to ULP?
A company’s capital reduction efforts, to
camouflage the fact that it has been making profits,
to justify the mass lay-off of its employees
especially union members, is ULP. (Madrigal &
Co. v. Zamora, GR L-4823)
What is a runway shop?
It is an industrial plant moved by its owners from
one location to another to another to escape union
labor regulations or state laws. It may also be used
to discriminate against employees of an old plant
because of their union activities. (Complex
Electronics Employees Association v. NLRC, GR
121315)
When is employee discrimination considered as
ULP?
Discrimination committed by the employer must be
in regard to the hire or tenure of employment or
any term or condition of employment to encourage
or discourage membership of any labor
organization. (Pagkakaisang Itinataguyod ng mga
Manggagawa sa Ang Tibay v. Ang Tibay, GR L-
22273)
When is discrimination by Blacklisting a ULP?
When resorted by a combination of employers to
prevent employment of employees for union
activities, it may be considered as ULP. (Azucena,
p. 317)
What is a union security clause?
It is an agreement between management and union
where membership in the union is required so that
an employee may retain his job. The union’s
existence is assured. The employer is not guilty of
ULP if it merely complies in good faith with the
union security clause. (Soriano v. Atienza, GR
68619)
What is the difference between closed-shop and
union shop?
In closed shop, only union members can be hired
by the company and they must remain as union
members to retain employment in the company.
In union shop, members may be hired but to retain
employment must become union members after a
certain period. The requirement applies to present
and future employee (Azucena, p.321).
What is necessary for dismissal pursuant to
closed-shop clause to be valid?
E.
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ATTY. LIBERADOR
There should be a clear and unequivocal statement
that the lost of the status of a member of good
standing in the union shall be a cause for dismissal.
(ICAYO v. Central Azucarera De Pilar, GR 17422)
May an employer rely solely in the allegations of
the union of federation to terminate the
employee?
No. There should be a separate and independent
investigation.Failure to do so may subject the
employer to illegal termination (Confederated Sons
of Labor v. Anakan Lumber Company, GR L-
12503).
To whom is closed-shop not applicable?
a. Employee who at the time the agreement
takes effect is a bona fide member of a
religious organization which prohibits its
members from joining labor unions on
religious grounds
b. Employees already in service and already
members of a labor union or unions other
than the majority union at the time the
closed-shop agreement takes place
c. Confidential employees
d. Employees excluded from the closed shop
by express terms of the agreement
(Azucena, p. 329)
What is the legal basis for a union to collect
agency fees from non-union employees?
It is based on quasi-contract, on the principle that
non-union employees may not unjustly enrich
themselves by benefiting from employment
conditions negotiated by the bargaining units.
(Holy Cross of Davao College v. Joaquin, GR
11007)
Does discrimination because of testimony
against violation of the Labor Code under
Article 248 (f) include refusal of an employee to
testify in favor of the employer?
Yes. The act of compelling employees to sign an
instrument indicating that the employer observed
labor standards provisions of law when he might
have not, together with the act of terminating or
coercing those who refuse to cooperate with the
employer’s scheme constitutes unfair labor
practice. (Mabeza v. NLRC, GR 118506)
When is labor standards violation a ULP?
It is ULP if there is retaliation from the employer
under Art. 248 (f).(Azucena, p.332)
What are the reliefs available in ULP cases?
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a. Cases and Desist Order
b. Affirmative Order
c. Order to Bargain; Mandated CBA
d. Disestablishment(Azucena, pp. 333-334)
Can ULP cases be subject to compromise?
No. However, an agreement may be made to settle
a ULP-based strike. (Reformist union of RB Liner
v. NLRC, GR 120482)
When are employers responsible for ULP acts
by subordinate officials?
If violations were traceable back to the employer,
either by way of authorization or ratification, the
employer, despite the fact that he himself was not
the actual actor, was held to be responsible for such
violations. (Azucena, p 335 citing Rothenberg on
Labor Relations, pp. 378-381)
Who can be held criminally responsible for ULP
of Labor organizations?
The officers, members of governing boards,
representatives or agents or members of labor
associations or organizations who have actually
participated in, authorized or ratifiedthe ULP shall
be held criminally liable. (Art. 249, LC)
May a union engage in interference of the
employee’s right to self-organization?
Yes, as long as the interference does not amount to
restraint or coercion. Interference is not included in
Art. 249 in contrast to Art.248 (Azucena, p. 338).
What is the procedure in collective bargaining?
a. When a party wants to negotiate, serve a
written notice to the other party with
proposals. The other party has 10 calendar
days to reply
b. If there are differences, either party may
request for a conference; begins 10 days
after date of request
c. If the dispute is not settled, the Board shall
intervene (Art. 250, LC)
What are the processes involved in collective
bargaining?
a. Negotiation between representatives of
management and union
b. Execution of a written contract
c. Negotiation of any question arising as to
the interpretation or application of the
contract
d. Negotiation over the terms of a new
contract, proposed modifications
(Azucena p. 345, citing Witte)
E.
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ATTY. LIBERADOR
What is a CBA?
It is a contract executed upon the request of either
the employer or exclusive bargaining representative
of the employees, incorporating the agreement
reached after negotiations with respect to wages,
hours of work and all other terms and conditions of
employment, including proposals for adjusting any
grievances or questions under such agreement
(Davao Integrated Port Stevedoing Services v.
Abarquez, GR 102132).
Who are the parties to collective bargaining?
The duty to bargain collectively arises only
between the employer and its employees. Thus,
where there is no ER-EE relationship, there is no
duty to bargain. (Allied Free Workers Union v.
Compania Maritima, GR L-22951)
What are the jurisdictional preconditions that
are need to be present to set in motion the
mechanics of collective bargaining?
a. Possession of the status of majority
representation of the employee’s
representative in accordance with any of
the means of selection provided by the
Labor Code
b. Proof of majority representation
c. Demand to bargain (Kiko Loy v. NRC, GR
54334)
When should bargaining begin?
It should begin within 12 months following the
determination and certification of the employee’s
excusive bargaining representative. This period is
known as the “certification year.” (Azucena, p.
353)
What are the requirements for multi-employer
bargaining?
a. Only legitimate labor unions who are
incumbent exclusive bargaining agents
may participate and negotiate
b. Only employers with counterpart
legitimate labor unions who are incumbent
bargaining agents may participate and
negotiate
c. Only those legitimate labor unions who
pertain to employer units who consent to
multi-employer bargaining may
participate (Sec 5, Rule XVI, DO 40-03)
What is the meaning of the duty to bargain
collectively where there is no CBA?
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It means the performance of a mutual obligation to
meet and convene promptly and expeditiously in
good faith for the purpose of negotiating agreement
with respect to wages, hours of work, and
conditions of employment, including proposals for
adjusting any grievances or questions arising from
such agreement. (Art. 252, LC)
What is the meaning of the duty to bargain
collectively where there is an existing CBA?
It includes the duties under Art. 252 as well as the
obligation not to terminate or modify the CBA
during its lifetime. (Art. 253, LC)
What are the four forms of ULP in bargaining?
a. Failure or refusal to meet and convene
b. Evading the mandatory subjects of
bargaining
c. Bad faith in bargaining, including refusal
to execute the collective agreement, if
requested
d. Gross violation of the CBA. (Azucena, pp.
360-361)
What is the effect of a petition for the
cancellation of registration of the union which
was certified as the bargaining representative of
the employees to collective bargaining?
It has no effect to collective bargaining. (Capitol
Medical Center v. Trajano, GR 155690)
What must be done by the acquiring company
in order to be free from liability arising from
labor issues?
There should be a substantial break or difference as
to the operations. There should be no intent to
avoid bargaining with the union. (Azucena, p. 362-
363)
Do economic exigencies justify refusal to
bargain?
An employer is not guilty of refusal to bargain by
adamantly rejecting the union’s economic demands
where he is operating at a loss, on low profit
margin, or in a depressed industry, as long as he
continues to negotiate. (Azucena, p. 364)
What is the effect to the employer of not
replying to the proposal?
The employer is deemed to have disregarded the
obligation to bargain in good faith. The CBA is
imposed on the employer. (Kiok Loy v. NLRC, GR
L-54334)
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Mandatory proposals make the employer liable
for ULP when such employer refuses to bargain
on those matters. What are they?
Mandatory proposals are wages, hours of work, and
other conditions of employment. As to other
matters, the employer is free not to bargain. (48
Am. Jur. 2d 998, p.812)
Do the employer and employees need to agree
on a signing bonus?
No. A signing bonus is not a benefit which may be
demanded under the law. If it is not agreed upon by
the parties or unilaterally offered as an additional
incentive, the condition for awarding it must be
duly satisfied. (Caltex Refinery Employees
Association v. Brillantes, GR 123782)
When is it considered bargaining in bad faith to
the point of deadlock?
Over a mandatory subject, a party may insist on
bargaining, even to the point of deadlock. His
insistence will not be construed as bargaining in
bad faith.
Over a non-mandatory subject, a party may not
insist on bargaining to the point of impasse,
otherwise it can be construed as bargaining in bad
faith. (Azucena, p. 376)
When is there a bargaining impasse?
It exists where good faith bargaining on the part of
both parties failed to resolve the issue and there are
no definite plans for further efforts to break the
deadlock. (American Shipbuilding Co. v. NLRC,
380 US 300)
Does arriving at a deadlock mean the end of
bargaining?
No. It signals the need to continue bargaining with
the assistance of a third party as conciliator or
arbitrator whose first aim is to get the parties back
to the negotiating table and help them craft a win-
win situation. (Azucena, p. 377)
May a bargaining deadlock be resolved through
arbitration by a Labor Arbiter?
There is nothing in the law that prohibits labor
arbiters from also acting as voluntary arbitrators as
long as the parties agree to have him hear and
decide their dispute (Manila Central Line Corp. v.
Manila Central Line Free Workers Union, GR
109383).
Bargaining in bad faith is considered ULP.
When should the charge of ULP be filed in such
cases?
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It must be filed while the bargaining is in
progress(SMTFM-WUP v. NLRC, GR 113856).
What is surface bargaining?
It is going through the motions of negotiating
without any legal intent to reach an agreement.
(Standard Chartered Bank Employees Union v.
Confesor, GR 114974)
What is Blue-Sky Bargaining?
It involves making exaggerated or unreasonable
proposals. (Standard Chartered Bank Employees
Union v. Confesor, GR 114974)
What is Boulwarism?
It involves two major phases:
a. A take it or leave it approach to
negotiations in general which emphasized
both the powerlessness and uselessness of
the Union to its members
b. A communications program that pictured
the Company as the true defender of the
employee’s interest (NLRB v. General
Electric Co., 418 F2d 736)
Who is the proper group to ratify the CBA?
It is the majority of all the workers in the
bargaining unit represented in the organization, not
just the majority union (Book V, Rule XVII, Sec. 2,
Implementing Rules of LC).
When is ratification not needed?
It is not needed when the CBA is a product of an
arbitral award by appropriate government authority
or by a voluntary arbitrator. In such situation,
posting is still needed but only for
information(Azucena, p. 391).
What is the effect of an unratified but
implemented CBA?
It is considered valid. The employees cannot
receive benefits under provisions favorable to them
and later insist that the CBA is void simply because
other provisions turn out not to the liking of certain
employees (Planters Products, Inc. v. NLRC, GR
78524).
What is the effect of signing the CBA on other
disputes?
The other disputes are deemed validly and actually
renounced under the CBA with the employer
(Bachrach Transportation v. Rural Transit
Employees, GR L-21768).
Where and when are CBAs registered?
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They are registered with the DOLE Regional
Office where the bargaining union is registered or
where it principally operates. It must be done
within 30 calendar days from the execution of the
agreement. (Art 231, LC)
What is the effect of failure to register the CBA?
Such failure does not make it invalid or
unenforceable but its non-registration renders the
contract-bar rule inoperative. (Azucena, p. 394)
Does the lack of certification by the BLR affect
the validity of the CBA?
No. It still becomes effective as between the parties
(Liberty Flour Mills Employees v. Liberty Flour
Mills, 180 SCRA 668).
What are the requirements of notice for the
ratification of the CBA by the employees?
The CBA should be posted in at least 2
conspicuous places in the establishment concerned
for at least 5 days before its ratification (Sec. 2, DO
40-03).
When is there an automatic renewal of a CBA?
The parties shall continue the CBA in full force and
effect until they reach a new agreement (Art. 253,
LC).
When should non-representational provisions of
the CBA be negotiated?
It must be renegotiated not later than 3 years after
its execution (Art. 253-A, LC).
Are provisions of a renegotiated CBA
automatically retroactive?
No. Agreement to provisions of the CBA entered
into within 6 months from the date of expiry of the
term of such other provision shall retroact to the
day immediately following such date.
If any such agreement is entered into beyond 6
months, the parties shall agree on the duration of
retroactivity (Art. 253-A, LC).
What is the determining point of when the
agreement is concluded or entered into?
It is the date the parties agreed, not the date they
signed. (Mindanao Terminal v. Confesor, GR
111809)
When is the extension of the effectivity of a CBA
valid?
It is valid if the extension was acceptable to both
parties to the agreement and did not violate any law
(Cruz v. Calleja, GR 87332).
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May a CBA be suspended for 10 years?
Yes. Nothing in Article 253-A prohibits the parties
from waiving or suspending the mandatory
timetables and agreeing on the remedies to enforce
the same.
There is no violation of the 5-year representation
limit because it will only apply when there is an
extant CBA in full force and effect (Rivera v.
Espiritu, GR 135547).
What may be the subject of an injunction, which
involves “non-national interest” disputes, when
a strike has become violent?
It may be directed against the illegal acts being
committed in connection with the labor dispute, not
against the dispute itself. Thus, an injunction can
be issued against the violence and intimidation
committed against the officials of the employer and
non-striking employees, not against the strike itself
(Meralco Worker’s Union v. Yatco, GR L019785).
As a general rule, regular courts do not have
jurisdiction to issue injunctions, even if acts of
violence, intimidation, and coercion were
imputed to the Union, when there is an unfair
labor practice case already pending in the
NLRC. What is the exception?
A regular court may issue injunction to protect the
interest of neutral employers in common workplace
where the picketing occurs, such as when the
employees of the neutral employers are prevented
from entering the workplace (Republic Flour Mill
Workers Association v. Reyes, GR L-21378).
May individual employees present their
grievances to their employer even if there is
already an exclusive bargaining representative?
Yes (Art. 255, LC).
On what matters may employees participate in
policy and decision making processes of the
establishment where they are employed?
They may participate if the process will directly
affect their rights, benefits, and welfare (Art. 255,
LC).
Who should elect the representatives of the
workers in the labor-management council that is
made in the policy and decision making process
of the company?
The representatives are elected by at least majority
of all employees in the establishment (Art. 255,
LC).
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What is the requirement for management
prerogatives that affect the rights of the
employees?
Management should see to it that its employees are
at least properly informed of its decisions or modes
of action (PAL v. NLRC, GR 85985).
Does collective bargaining with discussing the
new code of conduct, effectively recognizes the
right of management to enforce the said new
code of conduct?
No. CBA is not interpreted as cession of
employees’ right to participate in the deliberation
of matters which may affect their rights and the
formulation of policies relative thereto (PAL v.
NLRC, GR 85985).
Would a policy regarding the company’s sales
and operation require employee participation?
No. It does not affect the rights of the employees
(San Miguel Brewery Sale Force Union v. Ople,
GR 76219).
Does participation mean co-management of the
business?
No. The right to participation is not in the nature of
a co-management control of the business
(MERALCO v. Quisumbing, GR 127598).
As a rule, the DOLE shall promote the
formation of labor-management councils in so
far as it will directly affect their rights, benefits,
and welfare. What are the exceptions?
a. Those that are covered by collective
bargaining agreements
b. Traditional areas of bargaining (Sec 1,
Rule XXO, DO 40-03)
Who elects the workers’ representative in the
labor-management councils?
In organized establishments, the worker’s
representatives to the council shall be nominated by
the excusive bargaining representative.
In establishments where no legitimate labor
organization exists, the workers representative shall
be elected directly be the employees at large
(Azucena, p. 418).
What is a Collective Bargaining Unit (CBU)?
It is a group of employees sharing mutual interests
within a given employer unit, comprised of all or
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less than all of the entire body of employees in the
employer unit or any specific occupational or
grouping within such employer unit (DO 40-03).
What is the basic test of a bargaining unit’s
acceptability?
It is whether it will best assure to all employees the
exercise of their collective bargaining rights, when
the bargaining unit is comprised of constituents
enjoying a community of interest. This community
of interest is reflected in groups having substantial
similarity of wok and duties or similarity of
compensation and working conditions (Democratic
Labor Union v. Cebu Stevedoring, GR L-10321).
Can a collective bargaining unit be formed by
employees, of one employer, working in plants
that are located in different places?
Yes. Geographical location can be completely
disregarded if the communal or mutual interests of
the employees are not sacrificed (San Miguel
Corporation Supervisors v. Laguesma, GR
110399).
For the longer time, the company had two
separate bargaining units for two of its
divisions. May the employees suddenly decide
the make a single bargaining unit for both
divisions?
Yes. While the existence of a bargaining history is
a factor that may be reckoned with in determining
the appropriate bargaining units, it is not decisive
or conclusive. The test of grouping is whether it is
the combination will best assure to all employees
the exercise of their collective bargaining rights
(NAFLU v. Mainit Lumber Development Company
Workers Union-United Lumber and General
Workers of the Philippines, GR 79526).
May confidential employees be included in the
bargaining unit?
No. By nature of their work, they assist and act in a
confidential capacity to, or have access to
confidential matters of, person who exercise
managerial functions in the field of labor relations.
The rationale behind the ineligibility of managerial
employees to form, assist or join a labor union
equally applies to them (Philips Industrial
Development Inc. v. NLRC, GR 88957).
Generally, there should only be one bargaining
unit for one employer enterprise. What is the
exception?
The similarity of interests between the employees
warrants the formation of a separate and distinct
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bargaining unit (Golden Farms Inc. v. Secretary of
Labor, 234 SCRA 517).
May a single bargaining unit be made by
employees of two corporations?
No. They have their own separate juridical
personality (Diatagon Labor Federation Local 110
of the ULGWP v. Ople, 101 SCRA 534).
What happens to the bargaining unit when a
division of a corporation is spun-off into a new
corporation?
The workers of the spun-off corporation are
excluded from the bargaining unit of the mother
corporation (San Miguel Corp. Employees Union-
PTGWO v. Confessor, GR 111262).
Why is it important to distinguish a Collective
Bargaining Unit from the Union?
a. In a consent election, the voters are the
CBU
b. In CBA ratification, the voters are the
CBU
c. In strike voting, the voters are the
members of the union
In organized establishments, when and to whom
is a verified petition questioning the majority
status of the incumbent bargaining agent filed?
It is filed within the 60-day period before the
expiration of the collective bargaining agreement to
the DOLE (Art. 256, LC).
The verified petition questioning the majority
status of the bargaining agent must be
supported by written consent of how many
employees of the bargaining unit?
It should be supported by at least 25% of the
employees in the bargaining unit (Art. 256, LC).
What is the quorum for there to be a valid
election?
At least majority of all eligible voters in the
bargaining unit must have cast their votes (Art.
256, LC).
Who is considered the exclusive bargaining
agent?
The labor union receiving the majority of the valid
votes cast shall be certified as the exclusive
bargaining agent of all the workers in the unit (Art.
256, LC).
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What happens when there are three or more
choices and none of them receives a majority of
the votes cast?
There will be a run-off election between the labor
unions receiving the two highest number of votes.
However, all the contending unions should have
initially received at least 50% of the number of
votes cast (Art. 256, LC).
What happens at the expiration of the freedom
period where no petition for certification
election is filed?
The employer shall continue to recognize the
majority status of the incumbent bargaining agent
(Art. 256, LC).
What happens in petitions in unorganized
establishment or those where there is no
certified bargaining agent?
A certification election shall automatically be
conducted by the Med-Arbiter upon the filing of a
petition by any legitimate labor organization (Art.
257, LC).
When may an employer file a petition for
certification election?
The employer may do so when requested to bargain
collectively (Art. 258, LC).
What is the role of the employer in a
certification election?
The employer is a bystander. The role is limited to:
a. Being notified or informed of petitions of
such nature
b. Submitting the list of employees during
the pre-election conference (Art. 258-A,
LC).
To whom should a party to an election appeal
the order or results of the election?
Appeal may be filed directly to the Secretary of
Labor and Employment (Art. 259, LC).
What is the ground for appeal in a certification
election order?
The ground is that the rules and regulations or parts
thereof established by the Secretary of Labor and
Employment for the conduct of the election have
been violated(Art. 259, LC).
What is an exclusive bargaining representative?
It is any legitimate labor union duly recognized or
certified as the sole and exclusive bargaining
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representative or agent of all the employees in a
bargaining unit (DO 40-03).
What is the difference between organized
establishments from unorganized
establishments?
In unorganized establishments, the employer may
voluntary recognize the bargaining agent. If there
are obstacles to this, the petition to hold an election
may be filed anytime by any legitimate labor
organization, except within 12 months previous a
certification election, run-off, or consent election.
In organized establishments, voluntary recognition
is not possible. A petition to hold a certification
election has to be filed within the freedom period
and with the support of 25% of the bargaining unit
(Azucena, p.433).
What are the conditions for voluntary
recognition?
a. It is possible only in an unorganized
establishment
b. Only one union is asking for recognition
c. The union voluntary recognized should be
the majority union as indicated by the fact
that members of the bargaining unit did
not object to the projected recognition
(Azucena, p. 434).
What is must be done after recording of the fact
of voluntary recognition?
The employer and the union should conclude and
register a CBA within one year from the date of
entry of voluntary recognition. Otherwise, the
recognition will lapse and a rival union may
petition for a certification election (Sec 4, DO 40-
03).
What must first be shown before a certification
election be held?
It must be shown that there is reasonable doubt as
to which of the contending unions represents a
majority (Azucena, p. 437).
What is the difference between a certification
election and a union election?
A union election is held pursuant to the union’s
constitution and bylaws and the right to vote is
enjoyed only by union members. The object is to
elect officers of the union.
A certification election is ordered and supervised
by DOLE to determine whether a majority of the
employees which to be represented by a labor
organization or by which particular labor
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organization (UST Faculty Union v. Director
Bitonio, GR 131235).
Who files the petition for certification election?
a. The registered union
b. A national union or federation
c. The employer (Azucena, pp. 438-439).
What must other unions do if they are interested
in joining a certification election?
They should file a motion for intervention
(Azucena, p. 437).
When can a petition for certification not be
filed?
a. When a fact of voluntary recognition has
been entered or a valid certification,
consent run-off election has been
conducted within the bargaining unit,
within 1 year prior to the filing of the
petition.
When an appeal has been filed regarding
the results of the election, the running of
the 1 year period is suspended until the
decision is final and executory
b. When the duly certified union has
commenced and sustained negotiations in
good faith within the 1 year period above
c. There is a bargaining deadlock with an
incumbent bargaining agent
d. When a CBA has been registered, the
petition may be filed only within 60 days
prior to its expiry (Azucena, p. 441).
What is the procedure for certification election?
Mediator-Arbiter, to serve a notice of preliminary
conference (10 working days from receipt)
Preliminary Conference – if the unions may agree
to hold a consent election, the PCE will no longer
be held
Hearings and Filing of Pleadings – not exceeding
15 days from the date of the scheduled preliminary
conference
Formal order granting or denying the petition – 10
days from the date of the last hearing; or organized
establishments, after the 60-day freedom period
Pre-election Conference – set the mechanics for the
election (date, time, voters, number and location of
polling place, watchers, guideline)
Conducting of Certification Election
Denial or grant of the petition for certification
election is usually appealable to the Secretary of
Labor. What is the exception?
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An approval of a PCE in an unorganized
bargaining unit is not appealable (Azucena, p. 442).
What are the grounds for the Med-Arbiter to
deny the petition for certification election?
a. Non-appearance of the petitioner for two
consecutive scheduled conferences
b. The petitioning union is unregistered
c. Failure of the local/chapter or national
union/federation to submit a duly issued
charter certificate
d. Absence of employer-employee
relationship
e. The 12-month bar
f. Negotiation or deadlock
g. Existing CBA
h. Lack of support (Azucena, pp. 443-444).
Does the filing of a petition to cancel the
petitioner’s registration cause the suspension or
dismissal of the PCE?
No. To serve as dismissal, the legal personality of
the petitioner should have been cancelled with
finality (Sec 2, Rule XI, DO 40-F-03)
What is the effect of the pendency of unfair
labor practice charge against the petitioning
union to the PCE?
Nothing (Barrera v. Court of Industrial Relations,
107 SCRA 596).
What is the 12-month bar rule?
No petition for certification election may be filed
within one year from the date of a valid
certification, consent, or run-off election or from
the date of entry of a voluntary recognition of the
union by the employer (Azucena, p. 447).
Ordinarily, a bargaining agent who failed to
secure a CBA within 12 months could be
suspected as a tool of management and should
be replaced. What is the exception?
If the circumstances show that the cause of not
having concluded a CBA was not the union’s fault,
a certification election should not be authorized
even though no CBA has been concluded despite
the passage of 12 months (Capitol Medical Center
Alliance v. Laguesma, GR 118915).
Does the 12-month bar rule apply when the first
petition was dismissed on the ground the
election did not include all the employees who
should be properly included?
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No. The 12-month prohibition presupposes that
there was an actual conduct of election (R
Transport Corp. v. Laguesma, GR 106830).
What happens when there was failure of election
because less than majority of the CBU members
voted?
Another petition for certification election may be
held within 6 months (Sec 18, DO 40-03).
What is needed to be shown in order for a
deadlock to be a barrier to a certification
election?
The deadlock must be genuine. Some indicators
would be going on a legitimate strike or lockout or
submission to compulsory arbitration (Kaisahan ng
Manggagawang Pilipino v. Trajano, GR 75810).
What happens when a petition for certification
election is filed after the 60-day freedom period?
The petition is considered filed out of time because
it can be entertained only within 60 days prior the
expiry date of an existing CBA. After such period,
the old CBA is extended until a new one is signed
(National Congress of Unions in the Sugar
Industry of the Philippines v. Calleja, GR 89609).
What are some instances when the contract bar
rule does not apply?
a. When the CBA is defective
b. What is involved is a referendum to be
conducted among the rank-and-file
employees to determine whether they are
in favor of having an independently
registered union
c. CBA signed before or within the freedom
period despite and injunctive order
(Azucena pp. 455-456).
The petition for certification election does not
bar the employer and the incumbent union from
renegotiating and renewing the expiring CBA.
What would be the effect on the renegotiated
CBA if a union, other the one that executed it
should win the Certification Election?
The union thus certified would have to respect the
contract, but it may bargain with management to
shorten the life of the contract if it is too long
(General Maritime Stevedores Union of the
Philippines v. South Sea Shipping Line, GR L-
14689).
If a company’s rank-and-file employees are
unionized but the supervisors are not, does the
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supervisors’ petition need the 25% minimum
support?
No. The company is considered unorganized in so
far as the supervisors are concerned (California
Manufacturing v. Laguesma, GR 9020).
Is the 25% minimum support a strict
requirement?
No. It may be relaxed. The Med-Arbiter is still
empowered to order that it be held precisely for the
purpose of ascertaining which of the contending
labor organizations shall be the exclusive
bargaining agent (Atlas Free Workers Union Local
v. Noriel, GR L-46722).
When is the withdrawal of signatories for the
25% requirement presumed voluntary and
when is it presumed involuntary?
Withdrawals made before the filing of the petition
are presumed voluntary unless there is convincing
proof to the contrary.
Withdrawals made after the filing of the petition
are deemed involuntary (La Suerte Cigar and
Cigarette Factory v. Director, 123 SCRA 679).
As a general rule, the validity of registration of
the union can be resolved by the Regional
Director in an independent action. When may
the Med-Arbiter, in a petition for certification
election, do so?
It may be done by the Med-Arbiter when the
petitioning union is not listed in the roster of
legitimate labor organizations of the DOLE, or an
existing collective bargaining agreement is not
registered with the DOLE (DO 40-F-03).
The Med-Arbiter has authority to decide the
existence of employer-employee relationship.
What is the remedy of the employer if the Med-
Arbiter determines that there is such
relationship?
The order is appealable to the Secretary of Labor
(MY San Biscuits, Inc. v. Laguesma, GR 95011).
May certification election be held legally upon
the petition of a union while a petition for
certification election filed by another union is
pending appeal?
No. The appeal should first be resolved (Samahan
ng mga Manggagawa sa Filsystems v. Sec. of
Labor, GR 128067).
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Generally, the list of employees in the CBU or
payrolls should be the basis of who are voters.
When may another list be used?
The SSS list may be used when the employer
unjustly refused to submit the payroll in its custody
(Samahan ng Manggagawa sa Pacific Plastic v.
Laguesma, GR 111245).
What happens when there is a disagreement
over the voters’ list over the eligibility of voters?
All contested voters shall be allowed to vote. Their
vote shall be segregated and sealed in individual
envelopes (Sec 5, Rule IX, DO 40-03).
When is a dismissed employee eligible to vote in
the certification election?
The employee is eligible when such employee has
contested the legality of the dismissal in an
appropriate forum (Airtime Specialists, Inc. v.
Director of Labor Relations, GR 80612-16).
Are probationary employees entitled to vote in
the certification election?
Yes. The Code makes no distinction as to the
employment status as basis for eligibility in
supporting the petition for certification election.
The law refers to “all” employees in the bargaining
unit (Airtime Specialists, Inc. v. Director of Labor
Relations, GR 80612-16).
Are members of the INK, who are not members
of any union, eligible to vote?
Yes. The right to vote is given to all bona fide
employees in the bargaining unit, whether they are
members of a labor organization or not (Airtime
Specialists, Inc. v. Calleja, 190 SCRA 749).
When may a party-in-interest file a protest
based on the conduct and mechanics of the
election?
The petition must be formalized within 5 days after
the close of the election proceedings (Sec. 12, DO
40-03).
What are the conditions for the union obtaining
majority of the valid votes cast be certified as
the sole bargaining agent?
a. No protest was filed on time
b. No challenge or eligibility issue as to
voters or if the resolution of such will not
materially change the results of the
elections (Azucena, p. 472).
What are the requisites for a run-off election to
be proper?
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a. Majority of the CBU members voted
b. The election presented at least three
choices
c. Not one of the unions obtained majority of
the valid votes
d. Total number of votes for all the unions is
at least 50% of the votes cast
e. There is no unresolved challenge of voter
or election protest (Azucena, p.474)
Does an employer have standing to protest a
certification election based on irregularities?
Yes. What an employer is prohibited from doing is
to interfere with the conduct of the certification
election for the purpose of influencing its outcome.
An employer has an interest in seeing to it that the
election is clean, peaceful, orderly, and credible
(National Federation of Labor v. Sec of Labor, GR
104556).
What is the effect of the election as to the
minority union?
It does not lose its character as a lawful
organization. For non-CBA issues, the minority
union may act as a group of employees to present
grievances to the employer. It can also engage in
peaceful concerted activity as long as it is not a
strike (Azucena, p. 479).
May the bargaining agent represent retired
employees regarding rights, as embodied in the
CBA?
Retired employees retains, for the purpose of
prosecuting his claims, the status of an employee
entitled to the protection of the Labor Code. The
union is not denied its right to sue on behalf of its
members (Producers Bank of the Phil. V. NLRC,
GR 118069).
How long should the grievance machinery settle
an issue before it is automatically referred to
voluntary arbitration?
All grievances submitted to the grievance
machinery which are not settled within 7 calendar
days from the date of its submission shall
automatically be referred to voluntary arbitration
(Art. 260, LC).
What happens when the CBA fails to designate
a Voluntary Arbitrator or panel of Voluntary
Arbitrators?
The Board shall designate the Voluntary Arbitrator
or panel of Voluntary Arbitrators (Art 260, LC).
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Would a CBA provision giving the workers
financial assistance in pursuing a “higher
degree” include a course that would confer only
a certificate?
Yes. The CBA did not specify to which training
the benefit will apply. The term is so broad as to
include programs that would grant certificates and
not degrees. Construction of a CBA would be made
in favor of the employee (Holy Cross of Davao
College v. Holy Cross of Davao Faculty Union, GR
156098).
Is the death of a fetus included in the term as
dependent as to be covered by the death
insurance under the CBA?
Yes. The unborn child is a dependent because a
“dependent” is one who relies on another for
support (Continental Steel Manufaturing Corp. v.
Montano, GR 182836).
May a company make guidelines on the
qualifications or standards for the applicability
of a provision in the CBA where the CBA itself
is silent?
Yes. By executing the CBA in its present form, the
union is bound by the terms and conditions set
forth (United Kimberly-Clark Employees Union v.
Kimberly-Clark Philippines, Inc., GR 162957).
May a union invoke a proposal mentioned in the
negotiation minutes but not embodied in the
CBA contract itself?
No. The union should have requested or demanded
that such promise or undertaking be incorporated in
the CBA. A proposal raised by a contracting party
that does not find print in the CBA is not a part
thereof and the proponent has no claim whatsoever
to its implementation (Samahang Manggagawa sa
Top Form Manufacturing v. NLRC, GR 113856).
What is the Zipper Clause?
It is a stipulation in a CBA indicating that issues
that could have been negotiated upon but not
contained in the CBA cannot be raised for
negotiation when the CBA is already in effect
(Azucena, p. 488).
Should privileges given by law still need to be
included in the CBA?
No. The law form part of, and is read into, every
contract, unless clearly excluded therefrom in those
cases where such exclusion is allowed (Liberation
Steamship Ci., Inc. v. CIR, GR L-25389).
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May non-union members be entitled to the
benefits of the collective bargaining contract?
Yes. To accord its benefits only to members of the
union, without any valid reason, would constitute
undue discrimination against non-members (Prisco
v. Prisco Workers’ Union, GR L-92288).
Can a laborer claim benefits from a collective
bargaining agreement entered between the
company and the union which he is a member at
the time of the conclusion of the agreement, even
after he has resigned from said union?
Yes (Kapisanan Ng Mga Manggagawang
Pinagyakap v. Franklin Baker Co. of the Phil.)
Are managers entitled to CBA benefits?
No. However, there is nothing to prevent the
employer from granting benefits to managerial
employees equal to or higher than those afforded to
union members (Martinez v. NLRC, GR 118743).
Generally, when a collective bargaining
agreement is concluded, members of the labor
union are precluded from entering into
individual contracts of employment. What is the
exception?
If the agreement merely fixes wages and working
conditions, the employer may enter into particular
contracts of employment with his employees even
though both are bond by the general contract as to
wages and working conditions (Azucena p. 490
citing Danger & Shriber).
As a general rule, there is no law requiring a
bona fide purchaser of assets of an on-going
concern to absorb in its employ the employees of
the latter. What is the exception?
The parties are liable to the employees if the
transaction between the parties is colored or
clothed with bad faith (Sundowner Development
Corporation v. Drilon, GR 82341).
What is the Wiley Doctrine?
The disappearance by merger of a corporate
employer which has entered into a collective
bargaining agreement with a union does not
automatically terminate all rights of the employees
covered by the agreement (Azucena, p. 493).
What is the substitutionary doctrine?
This doctrine makes the CBA binding on the
parties despite the fact that a new bargaining agent
is elected by the employees. The new agent
however, may bargain for the shortening of the
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contract period (Benguet Consolidated v. BCI
Employees and Workers Union, 23 SCRA 465).
Is a no-strike stipulation covered by the
substitutionary doctrine?
No. It cannot be invoked to support the contention
that a newly certified collective bargaining agent
automatically assumes all the personal
undertakings made by the deposed union (Benguet
Consolidated v. BCI Employees and Workers
Union, 23 SCRA 465).
What are grievances?
They are any question by either the employer or the
union regarding the interpretation or application of
the CBA or company personnel policies or any
claim by either party that the other party is
violating any provision of the CBA or company
policy. It may include the interpretation and
enforcement of company personnel policies
(Azucena, p. 496).
What is the effect of failure or refusal to adhere
to the grievance procedure in the CBA?
It is an unfair labor practice because the grievance
procedure is part of the continuous process of
collective bargaining (Republic Savings Bank v.
CIR, 21 SCA 226).
May an employee waive the benefit of the option
of going through the grievance machinery and
directly submit the case to the voluntary
arbitrator?
When not forced upon against the parties, the
employee’s waiver of the option to submit the case
to the grievance machinery did not amount to
relinquishing the right to avail of voluntary
arbitration (Apalisok v. Rado Philippines Network,
GR 138094).
What is labor arbitration?
It is the reference of a labor dispute to a third party
for determination on the basis of evidence and
arguments presented by such parties who are bound
to accept the decision (Azucena, p. 502).
What is voluntary arbitration?
It is the referral of a dispute by the parties pursuant
to a voluntary arbitration clause in their collective
agreement, to an impartial third person for final and
binding resolution (Luzon Development Bank v.
Association of Luzon Development Bank
Employees, GR 120319).
E.
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ATTY. LIBERADOR
What is the difference between a temporary or
ad hoc arbitrator and a permanent arbitrator?
A temporary arbitrator is selected when a dispute is
already at hand. He is named to arbitrate a specific
dispute or a specific group of disputes, and there is
no commitment to select him again.
A permanent arbitrator is one who is selected
before a dispute arises, usually during the
negotiation of a CBA. He is to serve for a period of
time, usually during the life of the CBA (Azucena,
p.505)
How is arbitration distinguished from courts of
law?
Arbitration proceedings are informal. They are not
obliged to follow precedents set by other
arbitrations in similar cases. The rules of evidence
are not followed as arbitrators determine what is
admissible. The services of an attorney are not
essential (Azucena, p.505-506)
What are under the jurisdiction of the
Voluntary Arbitrators?
a. Interpretation or implementation of the
CBA
b. Interpretation and enforcement of
company personnel policies(Art. 261, LC)
c. Other labor disputes, as agreed by the
parties such as unfair labor practices and
bargaining deadlocks (Art. 262, LC).
Gross violation of the CBA is under the
jurisdiction of the Labor Arbiter, unless
otherwise agreed upon by the parties. What are
gross violations of the CBA?
They are flagrant and/or malicious refusal to
comply with the economic provisions of such
agreement (Art. 261, LC).
What are the two kinds of disputes in
arbitration?
a. Contract negotiation disputes/ arbitration
of interests
b. Contract interpretation/arbitration of
grievance or rights (Azucena, p.506-507).
Who has jurisdiction to decide over a
controversy which involves a money claim-
underpayment of retirement benefits?
Since it arises from the interpretation and
implementation of a provision of the CBA, the
Voluntary Arbitrator or Panel of Voluntary
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Arbitrators has original and exclusive jurisdiction
(San Jose v. NLRC, GR 121227).
What is the requirement for an employment
dispute, arising from CBA or personnel policy
interpretation to be cognizable by a voluntary
arbitrator?
The referral by the labor arbiter presupposes that
the parties had agreed in unequivocal language that
the termination dispute should be submitted to
grievance machinery and voluntary arbitration.
Without such explicit agreement, the labor arbiter
may hear and decide the case (San Miguel Corp. v.
NLRC, GR 80774).
What disputes are referred to the grievance
machinery or voluntary arbitrators?
Only disputes involving the union and the company
shall be referred to the grievance machinery or
voluntary arbitrators (Sanyo Philippines Workers
Union v. Canizares, GR 101619).
Who has jurisdiction over a case involving the
union and the company, on one hand, and some
union and non-union members who were
dismissed on the other hand?
The grievance machinery with members designated
by the union and the company cannot be expected
to be impartial against the dismissed employees.
Thus, the matter falls within the jurisdiction of the
Labor Arbiter(Sanyo Philippines Workers Union v.
Canizares, GR 101619).
What are company personnel policies?
They are guiding principles stated in broad, long-
range terms that express the philosophy or beliefs
of an organization’s top authority regarding
personnel matters. They deal with matters affecting
efficiency and well-being of employees (Azucena,
p. 510-511).
What must be shown for a ULP case involving
the CBA to be cognizable by the Labor Arbiter?
a. Gross violation of the CBA
b. Violation pertains to the economic
provisions of the CBA (Silva v. NLRC,
110226).
Who has jurisdiction on a dispute against the
company’s drug policy?
It is a personnel policy dispute within the
jurisdiction of a Voluntary Arbitrator (Union of
Nestle Workers v. Nestle Philippines, GR 148303).
E.
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ATTY. LIBERADOR
How is voluntary arbitration initiated?
a. A submission – where there is no previous
agreement to arbitrate, usually in interest
disputes, and/or
b. By a demand or notice invoking a
collective agreement arbitration clause –
usually in rights dispute, initiated
unilaterally (Azucena, p. 513).
What is the extent of the authority of the
arbitrator?
The arbitrator is expected to decide questions
expressly stated and limited in the submission
agreement. However, since arbitration is the final
resort for the adjudication of disputes, the arbitrator
will assume that he has the power to make a final
settlement (Azucena, p. 514).
May the employer contend that the Arbitrator
exceeded his authority in passing upon, not only
the question of whether there was performance
bonus to be granted, but also the amount when
the parties submitted to the Voluntary
Arbitrator “the issue of performance bonus”?
No. There is no indication that the parties to the
arbitration agreement regarded the “issue of
performance bonus” as a two-tiered issue. The
employer failed to reflect his thinking in the
arbitration agreement (Sime Darby Philippines v.
Magsalin, GR 90426).
What is a dispute clause?
It grants the arbitrator jurisdiction to hear and
determine practically any matter in dispute between
the parties (Trotta, Arbitration of Labor-
Management Disputes, p.78).
How long is the Voluntary Arbitrator given to
render an award or decision?
They are given 20 calendar days from the date of
submission of the dispute to voluntary arbitration
(Art 262-A, LC).
How long is the period before the award or
decision of the Voluntary Arbitrator to be final
executory?
It is final and executory after 10 days from receipt
of the copy of the award or decision by the parties
(Art 262-A, LC).
As a general rule, decisions of voluntary
arbitrators are accorded a certain measure of
finality. When can there be judicial review
thereof?
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The Supreme Court make take cognizance of
petitions questioning decisions where want of
jurisdiction grave abuse of discretion, violation of
due process, denial of substantial justice, or
erroneous interpretation of the law are brought to
its attention (Continental Marble Corp. v. NLRC,
GR L-43825).
May a motion for reconsideration on the
decision of the voluntary arbitrator be filed?
No (Section 7, Rule XIX, DO 40, 2003).
What is the mode of appeal for decisions of the
voluntary arbitrator to the Court of Appeals?
It is Rule 43 of the 1997 Rules of procedure
(Nippon Paint Employees Union v. CA, GR
159010).
Is the court limited to reviewing questions of law
on the decision of the voluntary arbitrator?
No. However, great respect should be given to the
findings of the latter (Continental Marble Corp v.
NLRC, GR L-43825).
What are the cooling periods before a strike
may commence?
bargaining deadlocks 30
unfair labor practice 15
Dismissal from employment of 0
union officers, constituting union
busting
(Art. 263, LC)
What is the requirement of the number of
approval in a strike vote?
A strike should be approved by majority of the total
union membership in the bargaining unit (Art. 263,
LC).
What is the effect when the Secretary of Labor
assumes jurisdiction over the dispute in a
national interest case?
It automatically enjoins the intended or impending
strike or lockout. If one has already taken place,
everybody resumes working(Art. 263, LC).
What is the additional requirement for a strike
or lockout in medical institutions?
It is the duty of the striking union or locking-out
employer to provide and maintain an effective
skeletal workforce of medical and other health
personnel to insure the proper and adequate
protection of life and health of its patients (Art.
263, LC).
E.
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ATTY. LIBERADOR
What is the effect of an unlawful lockout to a
worker whose employment was terminated by
it?
The worker is entitled to reinstatement with full
backwages (Art. 264 (a), LC).
What is the effect of the participation of a union
officer in an illegal strike?
He may be declared to have lost his employment
status(Art. 264 (a), LC).
What are the prohibited acts in strikes or
lockouts?
a. Declaring a strike or lockout without
compliance with the requirements of the
law
b. Obstruct, impede, or interfere by violence,
coercion, threats, or intimidation of any
peaceful (valid) picketing or assisting such
obstruction or interference.
c. Employing or being employed as a strike
breaker
d. A public official or employee who escorts
replacement workers
e. A person engaged in picketing to commit
act of violence, coercion or intimidation or
obstruct free ingress or egress of the
employer’s premises (Art. 264, LC).
May an individual, acting alone, be deemed
engaged in concerted activity?
If the employee is seeking to induce group activity
or is acting as representative of at least one other
employee, such act may be considered concerted
(Azucena, p. 533).
What is a strike?
It is a temporary stoppage of work by the concerted
action of employees as a result of an industrial or
labor dispute (Art. 212 (o), LC).
What are the grounds for conducting a strike or
lockout?
a. Collective bargaining deadlock, or
b. Unfair labor practice of the employer (Art
263, LC).
What is a lockout?
It is the temporary refusal of an employer to furnish
work as a result of an industrial or labor dispute
(Art. 212(p), LC).
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As a general rule, strike and lockouts are not
subject to labor injunctions or restraining
orders. What are the exceptions?
h. National interest cases
i. If prohibited act under Art. 264 are being
committed. (Azucena, p. 537).
How is the question of whether a lockout
constitutes an unfair labor practice decided?
It should be decided on the facts of each case, and
each case must be carefully measured by its own
setting (NLRB v. Brown, 13 L ed 2d 839).
May the employer validly lockout the employees
in order to prevent the acts of sabotage at the
plant?
Yes. The company is justified in its apprehension
and fear that sabotage might be committed in the
warehouse (Rizal Cement Workers Union v.
Madrigal, 10 SCRA 831).
What is a general strike?
It extends over a whole community, province, state
or country. It is an extended form of sympathetic
strike, involving many workers, in sympathy with
the workers of another employer, in order to
pressure the government (Azucena, p. 539).
What is a local strike?
It is one undertaken by the workers in a particular
enterprise (Azucena, p. 540).
What is a sit-down strike?
It is a combination of the strike and a refusal of the
strikers to leave the plant and machines, and a
refusal to permit the latter to be operated (Azucena,
p. 540).
What is a slowdown?
It is a willful reduction in the rate of work by a
group of employees for the purpose of restricting
the output of the employer(Azucena, p. 540).
What is a partial strike or wildcat strike?
It takes the form if intermittent, unannounced work
stoppage.it violates the labor contract and is not
authorized by the union (Azucena, p. 540).
What is a primary strike?
It is one declared by employees who have a direct
and immediate interest in the subject of the dispute
which exists between them and their employer
(Azucena, p. 540).
What is a secondary strike?
E.
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ATTY. LIBERADOR
It is when a group of employees refuse in concert
to remain at work for an employer who persists in
dealing with a third person against whom they have
a grievance. It is the absence of this connection
between employment and product which
characterizes the sympathetic as distinguished from
the secondary strike (Azucena, p. 541).
What is an economic strike?
It is intended to force wage and other concessions
from the employer, which he is not required by law
to grant (Consolidated Labor Association of the
Philippines v. Marsman, 11 SCRA 589).
What is unfair labor practice strike?
It is called against the unfair labor practices of the
employer, usually for the purpose of making him
desist from further committing such practices
(Mastro Plastic Corp. v. NLRB, 350 US 270).
A strike can validly take place only in the
presence of and in relation to a labor dispute
between the employer and employees involved.
What is labor dispute?
It includes any controversy or matter concerning
terms and conditions of employment or the
association or representation of persons in
negotiating, fixing, maintaining, changing or
arranging the terms and conditions of employment
(Art. 212(o), LC).
What is the remedy of the employer against
employees who are engaged in a wildcat strike?
An employer may lawfully discharge employees
for participating in an unjustified wildcat strike
especially when it is an attempt to undermine the
union’s position as exclusive bargaining
representative (National Union of Workers in
Hotels v. NLRC, GR 125561).
Why are sympathetic strike and Welga ng
Bayan illegal?
They violate employment obligations, sacrifices
productivity, and victimize even law-abiding
employees (Azucena, pp. 543-544).
What is the effect of disregarding grievance
procedure or refusal to submit the arbitrable
issue to voluntary arbitration?
The strike is premature, hence illegal (Liberal
Labor Union v. Phil. Can Co., GR L-4834).
How is the right to strike protected?
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a. It is generally not subject to labor
injunction or restraining order (Art. 254,
LC)
b. Employees may not be discriminated
against merely because they have
exercised the right to strike (Art. 248, LC)
c. The use of strike-breakers is prohibited
(Art. 264(c), LC)
d. Mere participation in a strike does not
sever the employment relationship, (Art
264(a), LC).
Who are strikebreakers?
They are persons who obstruct, impedes or
interferes with by force, violence, coercion, threats
or intimidation any peaceful picketing by
employees during any labor controversy affecting
wages, hours or conditions of work or in the
exercise of the right of self-organization or
collective bargaining (Art. 212(r), LC),
What is the role of police in strikes, lockouts,
and labor disputes in general?
It is limited to the maintenance of peace and order,
enforcement of laws and legal order of duly
constituted authorities and the performance of
specific functions as may be provided by law
(Azucena, p.547).
According to Teller, what are the six factors
affecting the legality of a strike?
a. Whether is it contrary to a specific
prohibition of law
b. Violates specific requirement of law
c. Declared for an unlawful purpose
d. Employs unlawful means
e. In violation of an existing injunction
f. Contrary to an existing agreement (Teller,
pp. 314-317)
Do government employees have the right to
strike?
No. They have the right to organize but they do
nothave the right to strike (SSS Employees
Association v. CA, 175 SCRA 686).
Who files a notice of strike?
If the reason for the intended strike is ULP by the
employer, it is filed by the duly recognized
bargaining agent. In the absence of which, any
unrecognized but registered union may do so.
In cases of bargaining deadlocks, only the
bargaining union may do so.(Azucena, p. 554).
E.
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How many votes are needed in a strike vote
were 60 of the 178 union membership have
pending contest of their dismissal?
The vote needed is at least 90. Employees who are
dismissed are still considered employees if there
are contesting their dismissal (Industrial Timber
Corp. v. NLRC, GR 107302).
Can the 7 day strike ban be included in the
30/15-day cooling-off period?
No. the 7 day requirement is counted from the day
following the expiration of the cooling-off period
(Sukhotai Cuisine v. CA, GR 150437).
What is the effect of an overtime boycott and
work slowdown?
It is considered as a strike on an installment basis,
hence, illegal (Interphil Laboratories Employees
Union v. Interphil Laboratories).
What are the elements for there to be ground to
strike on the basis of union-busting?
a. Union officers are being dismissed
b. Officers are the ones duly elected in
accordance with the union constitution
and by-laws
c. Existence of the union is threatened
(Azucena, p. 562)
What is the requirement that need not be
complied in a strike on the basis of union
busting?
Only the 15-day cooling off period is excused. The
three remaining requirements (notice, strike vote,
and 7-day report period), cannot be dispensed with
(Azucena, p. 562).
What is the effect of a strike during the
pendency of the compulsory arbitration
proceedings?
It is an illegal strike (Filsyn Employees Chapter v.
Drilon, GR 82225).
What is mediation?
In general, it is a process of resolving disputes with
the aid of a neutral person who helps the parties
identify issues and developproposals to resolve
their disputes (Azucena, p. 564),
What is the effect when a strike or walkout was
staged on the basis of grievances which have not
been submitted to the grievance committee, as
stipulated in the agreement of the parties?
The strike is premature and illegal (GOP-CCP
Workers Union v. CIR, 93 SCRA 116).
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Is the union allowed to violate its agreement
with management not to strike when
management failed in its duty in forming the
grievance committee?
No. The union must still exhaust all available
means within its reach before resorting to force
(Azucena, p. 567).
What is the conversion doctrine in strikes?
A strike, initially based on collective bargaining
deadlock, may be converted to one based on unfair
labor practice if the employer commits acts that
would show manifestation of unfair labor practice
(Azucena, p. 571).
When is there bargaining deadlock?
It is when there is failure, on the part of labor and
management, in the collective bargaining
negotiations resulting in a stalemate (San Miguel
Corporation v. NLRC, GR 99266).
Is the inability of the company to meet the
demands of the laborers a ground to prevent the
strike?
No. To make the legality or illegality of strikes
dependent solely on whether the demands of
laborers may or may not be granted, is in effect to
outlaw altogether an effective means for securing
better working conditions (Caltex Philippines v.
Philippine Labor Organization-Caltex Chapter, 93
Phil. 295).
What are the tests in determining the existence
of an unfair labor practice strike?
a. Objectively, when the strike is declared in
protest of unfair labor practice which is
found to have been actually committed;
and
b. Subjectively, when a strike is declared in
protest of what the union believed to be
unfair labor practices committed by
management, and the circumstance
warranted such belief in good faith,
although found subsequently as not
committed (Norton and Harrison Co.
Labor Union v. Norton and Harrison Co.,
29 SCRA 310).
What is the “Good-Faith Strike” doctrine?
For a strike, it is not required that there be in fact
unfair labor practice committed by the employer. It
suffices if such a belief in good faith is entertained
by labor as inducing factor for staging a strike
E.
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ATTY. LIBERADOR
(Shell Oil Workers’ Union v. Shell Company of the
Philippines, 39 SCRA 289).
Is there an illegal strike when the employer
refused to bargain on the ground that the appeal
of the union that has lost the certification
election is still pending?
No. The strike does not automatically carry the
stigma of illegality even if no unfair labor practices
were committed by the employer. It suffices if such
a belief in good faith is entertained by labor as the
inducing factor for staging s strike (Esso
Philippines v. Malayang Manggagawa sa ESSO,
GR L-36545).
Can a union go on a strike on the basis of ULP
when there is a no-strike clause in the CBA?
Yes. A no-strike clause prohibition in a CBA is
applicable only to economic strikes (Philippine
Metal Foundries, Inc. v. Court of Industrial
Relations, 90 SCRA 135).
May the employees stage a strike when
management issued guidelines intended to
minimize overtime expenses, upon consultation,
but without the response, of the union?
No. There should be at least a rational basis why
the union would wield a strike based on alleged
unfair labor practice. Such reason should be
substantiated during the conciliation proceedings
(Tiu and Hayuhay v. NLRC, GR 123276).
May the union strike in order to compel
recognition of and bargaining with the majority
union?
Yes. (Caltex Filipino Managers and Supervisors
Association v. CIR, GR L-30632-33).
The three jurisdictional preconditions to
collective bargaining are: 1) possession of
majority status, 2) proof of majority
representations, and 3) demand to bargain.
What is the effect if a strike was staged without
any of these conditions?
It would be premature for a union to hold a strike to
compel bargaining (Lakas ng Manggagawang
Makabayan v. Marcelo Enterprises).
May a minority union strike?
No. There is no labor dispute between a minority
union and an employer (United Restauror’s
Employees and Labor Union v. Hon. Torres, GR L-
24993).
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What is the effect when the union staged a strike
without giving management reasonable time
within which to consider and act on the
demands submitted by the Union?
The strike is premature (Paper Pulp & Project
Workers’ Union v. Insular Sugar Refining Corp,
GR L-7394).
May employees strike to coerce management to
get rid of a foreman whom the employees do not
like?
No. It is an unreasonable demand of the labor
union for the dismissal of a factory foreman (Luzon
Marine Department Union v. Roldan, GR L-2660).
May the employees strike on the basis of ULP
when the management allegedly transferred
their tables and seats without notice?
No. There is no actual existing unfair labor
practice. Changing the seating arrangement is an
exercise or reasonable prerogative (Reliance Surety
and Insurance Co., Inc. v. NLRC, GR 86917-18).
Is a demand to correct a salary distortion under
the wage rationalization act a valid ground to
strike?
No. The problem of wage distortion should be
brought by voluntary negotiation or arbitration
(Ilaw at Buklod ng Manggagawa v. NLRC, GR
91980).
When may a strike that was initially valid
become illegal?
When the means employed are illegal, the strike
also becomes illegal. It is illegal for a strike to be
done through violence, coercion, intimidation,
obstructing the free ingress to or egress from the
employer’s premises or obstructing public
thoroughfares (Azucena, p. 593).
Is the mere filing of charges against an employee
for alleged illegal acts during a strike justify his
dismissal?
No. The charges must be proved at an investigation
duly called where the employee shall be given an
opportunity to defend himself (Batangas Laguna
Tayabas Bus Company v. NLRC, GR 101858).
Is it still an illegal strike when there is violence
on both sides?
No (Batangas Laguna Tayabas Bus Company v.
NLRC, GR 101858).
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Who should be held responsible for illegal acts
in a strike?
The responsibility must be on an individual and not
collective basis. Only the union officers and the
strikers who engaged in violent, illegal and
criminal acts against the employer are deemed to
have lost their employment status. Union members
who were merely instigated to participate in the
illegal strike should be treated differently (First
City Interlink Transportation v. Confesor, GR
106316).
Who are the union officers liable for an illegal
strike?
They are individual officers, agents or members
with proof of actual authorization or ratification of
such illegal acts in a strike after actual knowledge
thereof (Phil. Marine Officers’ Guild v. Cia.
Maritima, 22 SCRA 113).
When some management officials are unable to
leave the premises of the company during a
strike, may the strikers be held guilty of illegal
detention?
No. When without criminal intent and only to
weaken management resistance so that it would
give in to their demands, their acts do not add up to
the commission of the offense of slight illegal
detention (People v. Barba, 29 SCRA 663).
What are considered “National Interest” cases?
They are labor disputes causing or likely to cause a
strike or lockout in an industry indispensable to the
national interest is in the nature of a police power
measure (Union of Filipro Employees v. NLRC, GR
91025).
What is the regulation for strikes in banks?
Any strike or lockout involving banks, if unsettled
after 7 calendar days, shall be reported by the BSP
to the Secretary of Labor who may assume
jurisdiction (Sec. 22, GBL).
Is prior notice necessary in order for the
Secretary of Labor to take jurisdiction over a
labor dispute?
No. His primary assumption of jurisdiction can
justifiable rest on his own consideration of the
exigency of the situation in relation to the national
interests (Magnolia Poultry Employees Union v.
Sanchez, GR 76227-28).
What are certified labor disputes?
They are cases certified or referred to the NLRC
for compulsory arbitration under Art. 263(g) of the
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Labor Code dealing about “national interest” cases.
These cases may be certified even before a strike is
declared (Azucena, p.603).
When sitting in a compulsory arbitration
certified to by the Secretary of Labor, does the
NRLC have authority to amend the Secretary’s
order?
No. It is not sitting as a judicial court but as an
administrative body charged with the duty to
implement the order of the Secretary (University of
Santo Tomas v. NLRC, GR 89920).
What is the effect of non-compliance with the
certification order of the Secretary of Labor?
It is considered as an illegal act committed in the
course of the strike or lockout, and shall authorize
the NLRC to enforce the same under the pain of
immediate disciplinary action, including dismissal
or loss of employment status or payment by the
locking-out employer of backwages, damages,
and/or other affirmative relief, even criminal
prosecution (Sec. 4 Rule VIII, NLRC, Revised Rules
of Procedure, 2005).
Who are required to be notified of the
certification order of the labor secretary?
The counsels of record and the parties must be
served separate copies of the order, decision or
resolution (PNOC Dockyard and Engineering
Corp. v. NLRC, GR 118223).
What happens when the employees refuse to
receive the Assumption of Jurisdiction Order?
It amounts to defiance of the order which would
make the continuation of the strike an illegal act,
subjecting the strikers to loss of employment status
(University of San Agustin v. CA, GR 169632).
What is needed to be proved in order for an
employee to be dismissed due to an illegal strike
allegedly staged after a return-to-work order?
To justify the dismissal, the defiance of the return-
to-work order must be proved. The mere fact that
the majority of the strikers were able to return to
work does not necessarily mean that the rest
deliberately defied the return to work order or that
they had been sufficiently notified thereof
(Batangas Lagunas Tayabas Bus Company v.
NLRC, GR 101858).
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May the Secretary of Labor temper the
consequence of the defiance to the return to
work order?
Yes. He may merely suspend rather than dismiss
the employees involved (Cebu Portland Cement v.
Cement Workers’ Union, GR L-25032).
Where a return-to-work order is issued, may the
employer be compelled to accept back the
strikers with pending criminal charges relating
to the strike?
Yes. To exclude employees with pending criminal
charges in the directive to the company to accept
back the striking workers without first determining
whether they knowingly committed illegal acts
would be tantamount to dismissal without due
process of law (Telefunken Semiconductors
Employees Union v. Secretary of Labor, GR
122743).
The general rule is that actual readmission is
required and payroll readmission is not
sufficient as compliance with the law. What is
the exception?
The departure from the general rule is allowed
when there is a showing of special circumstances
rendering actual reinstatement impracticable or
otherwise not conducive to attaining the purpose of
the law (Manila Diamond Hotel Employees’ Union
v. CA, GR 140518).
Is voluntary return to work a waiver of the
demands for striking?
It does not imply the waiver of the original
demands (Bisaya Land Transportation Company v.
CIR, 102 Phil. 438).
Which division of the NLRC has jurisdiction
over a business with several workplaces located
in different regions?
The division having territorial jurisdiction over the
principal office of the company shall acquire
jurisdiction to decide such labor dispute, unless the
certification order provides otherwise (Sec. 3, Rule
VIII, NLRC Revised Rules of Procedure, 2005).
May the Secretary of Labor assume jurisdiction
over all the following: petition for injunction
and damages against the striking union, a
complaint for ULP filed by the union, and a
petition to declare an illegal strike?
Yes. The consolidation of the three NLRC cases
was necessary to enable the Secretary of Labor to
completely and efficiently dispose of the dispute in
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its entirety (International Pharmaceuticals v.
Secretary of Labor, GR 92981-83).
When may the Secretary of Labor take
cognizance of an issue which is merely incidental
to the labor dispute?
It should be included in the labor dispute itself, or
otherwise submitted to him for resolution.
Otherwise, it is tantamount to a grave abuse of
discretion (St. Scholastica’s College v. Torres, GR
1100158).
What is the procedure in certified cases?
If there is no need to conduct a clarificatory
hearing, the NLRC shall resolve all certified cases
within 30 calendar days from receipt.
If there is a clarificatory hearing needed, the
NLRC, within 5 days from the receipt of the
records shall issue a notice on the parties to appear
and submit evidence. It must then be resolved
within 60 days from receipt of the records (Sec 5,
Rule VII, NLRC Rules of Procedure, 2005).
May the employer lay off numerous employees
while a labor dispute is still unresolved after the
Secretary of Labor assumed jurisdiction?
No. Management prerogatives must be exercised
consistently with the statutory objective (Metrolab
Industries v. Roldan-Confesor, GR 108855).
Does the Supreme Court have jurisdiction to
declare the Secretary of Labor in grave abuse of
discretion in giving an award in lieu of a
deadlock dispute?
Yes. The extent of judicial review over the
Secretary of Labor’s arbital award is not limited to
a determination of grave abuse in the manner of the
secretary’s exercise of his statutory powers. The
Court must exercise its judicial power to review the
substance of the Secretary’s award when grave
abuse of discretion is alleged to exist in the award
(Meralco v. Quisumbing, GR 127598).
Does a CBA containing a no strike/no lockout
clause and that disputes should be referred to
the voluntary arbitrator valid?
A no-strike-no-lockout stipulation generally
deserves respect by the parties in a CBA. It applies
even to a deadlock in renegotiating the economic
provisions of the CBA (University of San Agustin
Employees Union v. CA).
However, no-strike clause in a CBA applies only to
economic strikes. A strike based on ULP of the
employee is not a violation of the no-strike clause
(Master Iron Labor Union v. NLRC, GR 92009).
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Is the no-strike clause entered by the previous
bargaining agent binding upon the newly
certified bargaining agent?
No. The substitutionary doctrine cannot be invoke
to support the contention that the newly certified
bargaining agent automatically assumes all the
personal undertaking, such as a no-strike clause, of
the deposed union (Benguet Consolidated v. BCI
Employees and Workers Union, GR L-24711).
What is the effect to the union if the work
stoppage was not supported by the union and
the union took steps to get the situation back to
normal?
There would be no strike that violated the no-strike
clause of the CBA (Diwa ng Pagkakaisa v. Fillex
International Corp, 43 SCRA 217).
What is the importance of an improved-offer
balloting?
An improved offer by the employer or a reduced
demand by the union will serve as basis for a secret
balloting that will not reveal who “retreated” from
the fight, which would be helpful in ending the
work stoppage (Azucena, p. 631).
Is picketing the same as a strike?
No. Picketing almost always accompanies a strike
but there may be picketing without a strike because
employees may picket without engaging in work
stoppage. Although picketing is a form of
concerted action, not every concerted action is
strike (Azucena, p. 632).
What is the rule for strikes against innocent
bystanders?
There is no labor dispute between the union and the
innocent bystanders. The court has to power to
confine the sphere of communication to that
directly related to the labor dispute (Philippine
Association of Free Labor Unions v. Cloribel, GR
L-25878).
May domestic servants picket on a private home
in a residential district?
No. A home is not an industrial or a business
enterprise (State v. Cooper, 285 NW 903).
What are the limitations of picketing?
It has to be for a lawful purpose, using lawful
means. Thus, to the extent that it is an instrument
of coercion rather than of persuasion, it cannot
rightfully entitled to the protection association with
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free speech (Security Bank Employees Union v.
Security Bank and Trust, 23 SCRA 503).
What is the limitation with regard to placards
and banners?
The inscription should not be libelous or otherwise
unlawful. The display of signs misstating the facts
in respect of the labor dispute is not permitted
(Azucena, p. 639)
Is the use of loud speakers in front of a pickted
place of business valid?
No. It is condemned as a form of intimidation (31
Am. Jur., Sec. 285)
May the workers of a company demonstrate in
the Malacanang to protest alleged abuses of the
police against the orders of the employer who
was invoking the no-strike clause in the CBA?
Yes. The demonstration is purely and completely
an exercise of their freedom of expression, in
general (Philippine Blooming Mills Employees
Organization v. Philippine Blooming Mills, 51
SCRA 189).
May the union justify work stoppages held in
front of DOLE offices when there is a labor
dispute?
No (Toyota Motors Phils. Corp. Workers
Association v. NLRC, GR 158786, GR 158789).
What is boycott as applied to labor unions?
It is an attempt by arousing a fear of loss, to coerce
others, against their will to withhold from one
denominated “unfriendly to labor” their beneficial
business intercourse (31 Am. Jur., Sec. 250).
What are the kinds of boycott in labor unions?
A primary boycott is valid. It is applied directly
and alone to the offending person by withdrawing
from him all business relations on the part of the
organization that initiated the boycott.
A secondary boycott exercises coercive pressure
upon such customers, actual or prospective, in
order to cause them to withhold or withdraw
patronage from him through fear or loss or damage
to themselves should they deal with him. This is
invalid (Azucena, pp.642-643).
What are valid grounds for boycott by labor?
The ground is valid if it is done for the
maintenance or advancement of wages,
improvement of conditions of labor, engagement of
union employees, reinstatement under contract of
E.
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ATTY. LIBERADOR
union men dismissed because of union affiliation
(Azucena p. 643).
What are invalid grounds for boycott by labor?
The boycott is illegal where the purpose is to
require an employer to coerce his employees to pay
their back dues to the union or discharge them, or
to compel the payment by an employee of a fine or
other penalties, or other reasons that should be
internal (Azucena p. 643)
How should boycotts be conducted?
Only a boycott that is free of violence or
malevolence is held anywhere to be lawful.
Interference with one’s patronage by persuading
his patrons against their will, or preventing them by
means of violence or threats, from having
beneficial intercourse with him is unlawful
(Azucena p. 543).
Is boycott limited only to the employees?
No. They may appeal for sympathetic aid by a
request to withhold patronage or make like proper
measures to induce third persons to withhold their
patronage from the employer in order to compel
him to recognize the demands of the employees
(Azucena p. 543).
What are slowdowns?
It is a method by which one’s employees, without
seeking a complete stoppage of work, retard
production and distribution in an effort to compel
compliance by the employer with the labor
demands made by him (Rothenberg p.101).
Are slowdowns valid?
No. While the employees continue to work and
remain at their positions and accept wages due to
them, they at the same time select what part of their
allocated task they care to perform of their own
volition or refuse openly or secrectly to the
employer’s damage, to do other work (Ilaw at
Buklod ng Manggagawa v. NLRC, GR 91980).
As a general rule, no union members or union
organizers may be arrested or detained for
union activities without previous consultation
with the Secretary of Labor. What are the
exceptions?
a. National security and public peace
b. Commission of a crime (Art. 266, LC).
What is the effect of the compulsory arbitration
proceedings in the NLRC to the criminal cases?
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The criminal cases should be suspended until the
completion of the compulsory arbitration
proceedings in the NLRC (Sarmiento v. Judge
Tuico, GR 75271-73).
What is the effect of participation in a strike
that turns out to be illegal as to the workers who
are not personally responsible for illegal acts?
A union member may not be held responsible for
the union’s illegal strike on the sole basis of such
membership or on account of his having voted
affirmatively for the holding of the strike later
declared illegal (Esso Philippines, Inc. v.
Malayang Manggagawa sa Esso, 75 SCRA 73).
What is the effect of participation in a strike
that turns out to be illegal as to union officers?
They may be terminated from work when he
knowingly participates in an illegal strike, or when
he commits an illegal act during a strike (Toyota
Motor Phil. Corp., Workers Association v. NLRC,
GR 158786, 158789).
Does the penalty for erring strikes always have
to be dismissal?
No. It may be scaled down to suspension (PAL v.
Brillaantes, GR 119360).
A shop steward is appointed by the Union,
charged with negotiating and adjustment of
grievances of employees with the supervisor of
the employer. If they participated in an illegal
strike, may they be dismissed?
Yes. They are not mere union members but officers
(Santa Rosa Coca-Cola Plant Employees and
Laborers Union v. CIR, GR L-19778).
When may a union member lose his employment
during an illegal strike?
A union member who participated in committing
illegal acts during a strike may also lose his
employment status (Chua v. NLRC, GR 105775).
Who declares as to which union officers lose
their employment status due to an illegal strike?
The law grants the employer the option of
declaring a union officer who participated in an
illegal strike as having lost his employment (Gold
City Integrated Port Service v. NLRC, GR 103560).
Is the declaration of illegality of strike a
prerequisite to the dismissal of strikers who
commit illegal acts?
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ATTY. LIBERADOR
Filing a petition to declare a strike illegal is not a
prerequisite for the employer to terminate the
employment of employees, whether union officers
or members, who commit illegal acts in the course
of the strike (Jackbilt Industries v. Jackbilt
Employees’ Workers Union, GR 171618-19).
May the employer dismiss the strikers while its
complaint for illegal strike is pending at the
NLRC?
No. By filing a formal complaint for illegal strike,
it behooved the employer to desist from
undertaking its own investigation on the same
matter (PNOC Dockyard and Engineering Corp v.
NLRC).
What is good-faith strike doctrine?
A strike may be justified by belief in good faith
that the employer was committing unfair labor
practice at the time the striker went on strike. It
saves the strike from being declared illegal and the
strikers from being declared to have lost their
employment status (Azucena, p. 653).
What is the effect of employees who were
dismissed on a good-faith strike when the
allegation of ULP of the employer turned out
not guilty of actual ULP?
The strikers are reinstated without backpay (Ferrer
v. CIR, 17 SCRA 353).
What is the effect when a striker failed to report
for work when one had the opportunity to do
so?
He effectively waived his right to reinstatement
(East Asiatic Co. v. CIR, GR L-29068).
If during a strike, a striking employee has found
another job, is he still entitled to reinstatement?
It depends. The mere fact that strikers or dismissed
employees have found such employment elsewhere
is not necessarily a bar to their reinstatement.
Nonetheless, each case should be weighed as to its
particular facts to determine whether the law would
be best effected by reinstatement (Cromwell
Commercial Employees and Laborers Union v.
CIR, GR L-19778).
What is an illustration of discrimination in the
readmission of strikers?
Discrimination undoubtedly exists where the record
shows that the union activity of the rehired strikers
has been less prominent than that of the strikers
who were denied reinstatement (The Insular Life
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Assurance Co. Employees Association v. The
Insular Life Assurance Co., 37 SCRA 244).
Is the readmission of the strikers on the
condition that they do not destroy company
property and not commit acts of reprisal against
union member show did not participate in the
strike valid?
Yes. The requirements of the company is actually
an act of self-preservation and designed to insure
the maintenance of peace and order in the company
premises (PIMA v. Ang Tibay, GR L-22273).
May wrongfully dismissed employees and
strikers who were ordered reinstated be
subjected to physical examination as
precondition to reinstatement?
No. They may be subjected to periodic physical
examination as old reinstated workers but not as
precondition to reinstatement (Davao Free
Workers Front v. CIR, 20 SCRA 408).
What is the effect when the employer
voluntarily agrees to reinstate strikers?
Such agreement on the part of the employer
constitutes a waiver of the defense that the strike
was illegal (Bisaya Land Trans. Co. v. CIR, GR L-
10114).
In an economic strike, the rule is that strikers
are not entitled to backwages during the time of
the strike. What is the remedy of the strikers?
They may seek reimbursement of his wages from
his union which had declared the strike or filed the
case in the industrial court. He may also have his
absence from work charged against his vacation
leave (J.P. Heilbronn Co. v. National Labor Union,
GR L-5121).
As a general rule, are employees entitled to
backwages in an ULP strike?
It depends. The employees who were
discriminatorily dismissed receive backpay from
the date of the act of discrimination, that is, from
the day of their discharge.
The rest of the employees who struck as voluntary
act of protest against what they considered unfair
labor practices of the company are not entitled to
backpay (Dinglasan v. National Labor Union, GR
L-14183).
If the union is left no other alternative by their
employer’s improper and oppressive conduct and
unfair labor practice but to strike in order to protect
themselves and their unlawfully dismissed
E.
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ATTY. LIBERADOR
companion, the strikers are entitled to backwages
(Davao Free Workers Front v. CIR).
Are employees entitled to backwages when they
engaged in a strike due to an unlawful lockout of
the employer?
Yes. The strike was not of their own volition. They
are entitled to backwages from dismissal to
reinstatement or the time they found another job
(Macleod & Co. of P.I. v. Progressive Federation
of Labor, GR L-7887).
Are employees entitled to backwages when the
strikers who applied for reinstatement were
refused employment or were imposed
preconditions for employment?
Yes. It is a discriminatory act on the part of the
employer (Cromwell Commercial Employees and
Laborers Union v. CIR, GR L-19778).
Does a finding of unfair labor practice
committed by the employer automatically
entitles strikers backwages during the strike?
No. Even after the court has made a finding of
unfair labor practice, it has the discretion to
determine whether to grant backpay or not
(Consolidated Labor Association of the Philippines
v. Marsman and Company, Inc., 11 SCRA 589).
What is the effect of hiring replacements during
the strike on the tenure of the strikers?
Nothing. The strikers have a right to reinstatement
notwithstanding that the management may have
hired other workers to replace them. The
replacements did not gain permanent right to the
positions they held (Feati University v. Bautista,
GR L-21278).
What is happens to the employees when
reinstatement has become impossible?
The employees are entitled to backwages from the
day of the lay-off to the date of its decision [and
separation pay] (Coronel v. CIR, 23 SCRA 990).
May a union still enter into a CBA even if it
would fail to satisfy the 20% requirement due to
the resignation of the strikers?
Yes. The 20% requirement in Art. 234 pertains to
registration of a labor organization and not its
election as a collective bargaining agent. Even if a
legitimate organization could no longer meet the
20% requirement after its registration, it does not,
ipso facto, lose its status as such until after due
hearing by the BLR (Commodity Transport
Corporation v. NLRC, GR 84926).
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labor organizations enforcement of Labor

When are labor organizations civilly liable for Code provisions
damages? Needs a sworn May be done at DOLE’s
If any injury results to anyone, it will be considered complaint filed and own initiative
merely incidental and damnum absque injuria. supported by at least
However, they may be held liable for resulting 20% of the
damages where they attempt to attain their organization’s
legitimate objectives by unlawful means or where membership
they attempt to attain unlawful objectives (32 Am.
Jur., Sec. 135). What is the difference between the visitorial
power in Art. 247 from Art. 128?
May a labor union and/or its officers be
vicariously held liable for illegal acts of strikers? Art. 247 Art. 128
No. For them to be liable, there must be proof of Needs the support of Needs the support of
actual participation in, or authorization or 20% of the 30% of the
ratification of, the illegal acts (Benguet organization’s members organization’s members
Consolidated, Inc. v. BCI Employees Union, 23 Merely invokes the The cancellation of
SCRA 465). visitorial power of the union registration or the
Secretary of Labor over expulsion of union
What must the employer present in order to the financials of the officers may be sought
claim for damages arising from an illegal strike? organizations
The best evidence obtainable by the injured party
must be presented. In the absence of competent When is it prohibited to invoke the visitorial
proof on the actual damages, the employer is power of the Secretary of Labor under Art. 274?
entitled to nominal damages (National Federation a. During the 60-day freedom period
of Labor v. NLRC, GR 113466). b. 30 days immediately preceding the date of
election of union officials (Art. 274, LC)
Generally, aliens are strictly prohibited from
engaging in all forms of trade union activities. Where is the request for examination of books
What are the requirements for when they may of accounts filed?
exercise the right of self-organization and join If for an independent labor unions, chartered locals
or assist labor organizations for the purpose of and workers associations, it shall be filed with the
collective bargaining? Regional Office that issued its certificate of
a. Valid work permits issued by DOLE registration or certificate of creation of chartered
b. Aliens are nationals of a country which local.
grants the same or similar rights to For federations or nation unions and trade union
Filipino workers (Art. 269, LC). centers, it is filed with the BLR (D.O. 40-03).
What are the prohibited foreign assistance to What is the meaning of Tripartism in labor
any labor organization? relations?
Foreign individuals, organizations or entities may It is the representation of the public or government,
not assist labor organizations in relation to trade the employers, and the workers in policy making
union activities without prior permission by the bodies of the government (Azucena, p. 679).
Secretary of Labor (Art. 270, LC).

What is the difference between the visitorial Employees may not be dismissed except for a
power of the Secretary of Labor in Art. 247 just cause or when authorized by law. What
from power of inspection under Art. 128? happens when an employee is unjustly
dismissed?
Art 247 Art 128 Such worker will be entitled to reinstatement
Relates only to financial Pertains to without loss of seniority rights and other privileges
activities and records of administrative and to his full backwages, inclusive of allowances,

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and to his other benefits or their monetary
equivalent computed from the time his
compensation was withheld from him up to the
time of his actual reinstatement (Art. 279, LC).
Do probationary and contractual employees
have security of tenure?
Yes. They enjoy security of tenure, but only to a
limited extent. They remain secure of their
employment during the period of time their
respective contracts of employment remained in
effect (Labajo v. San Andres High School of
Maramang, GR L-80383).
What is the limitation to the fact the managerial
employees may be dismissed on the ground of
loss of confidence?
The matter determining whether the cause for
dismissing an employee is justified on ground of
loss of confidence cannot be left entirely to the
employer (De Leon v. NLRC, 100 SCRA 691).
What is the employment status of in-house legal
counsels?
They are regular employees. The relationship is
employer and employee, not client-lawyer. To
terminate the relationship, the applicable law is the
Labor Code, not the Rules of Court (Equitable
Banking Corp., v. NLRC, GR 102467).
When is an employee considered regular as
opposed to casual?
a. Engaged to perform activities which are
usually necessary or desirable in the usual
business or trade of the employer
b. Rendered at least one year of service,
whether continuous or broken, with
respect to the activity in which he is
employed (Art. 280, LC).
When are employees not deemed regular despite
performing activities that are necessary or
desirable in the usual business or trade of the
employer?
a. Employed for a specific project or
undertaking, the completion of which has
been determined at the time of
engagement of the employee
b. Work or services to be performed is
seasonal in nature and the employment is
for the duration of the season (Art. 280,
LC).
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Can Art. 280 of the Labor Code be used to
determine the existence of an employer-
employee relationship?
No. Art. 280 merely distinguishes between regular
employees and causal employees for the purpose of
determining the right of an employee to certain
benefits. The article does not apply where the
existence of an employment relationship is in
dispute (Singer Sewing Machine Co., v. Drilon, GR
91307).
Does entering into a contract of services under
the Civil Code negate the existence of
employment relationship?
No (Paguio v. NLRC, GR 147816).
May the employer contend that the employee is
casual by showing that the employee was paid
through cash vouchers and that regular
employment procedure was not complied with?
No. What determines whether a certain
employment is regular or casual is not the nature of
the activities performed in relation to the particular
business or trade considering all the circumstances
(De Leon v. NLRC, GR 70705).
What is the employment status of employees in
cases that there is labor-only contracting?
They are considered employees of the principal.
When they perform tasks which are usually
necessary or desirable in the main business of the
employer, they should be deemed regular
employees (Ecal v. NLRC, GR 92777-78).
What is the effect if the employee was made to
sign an employment contract relating to a
particular phase of work in a specific project
every three months for two years?
It means that the employee performs tasks which
are usually necessary or desirable in the usual
business or trade of the employer and that the
assignments did not end on a project basis. Thus,
the employer is considered regular (Magante v.
NLRC, GR 74969).
May a typist-clerk be considered seasonal
employee when such clerk is employed, allegedly
to meet seasonal or peak demands of business?
No. Since the employee is performing activities
which are usually necessary or desirable in the
usual business, then such employee is considered
regular (Beta Electric Corporation v. NLRC, GR
86408).
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What is the effect when a casual employee
becomes regular through satisfying the one year
of service requirement?
Such employee becomes regular only for that work
activity for which he was hired. Every time the
particular work occurs, he is the one to be hired
(Azucena, p. 702).
What is the effect when casual employees are
dismissed before the expiration of the one year
period?
The employees cannot lawfully claim that their
dismissal was illegal (Capule v. NLRC, GR 90653).
What is the effect to the wages when the casual
employees, who are given higher salary, are
turned into regular employees?
The employees should not receive compensation
less than what they were receiving during the time
they were casual employees (Philippine American
Management Association v. CIR, GR 37206).
May the employer validly contract out a job,
work, or service that would result in
termination of regular employees and reduction
of work hours or splitting of the bargaining
unit?
It depends. It is allowed only when done in good
faith and justified by exigencies of the business
(Azucena, p. 705).
How may regular jobs be contracted out?
Regular jobs may be contracted out by having the
employees agree to a valid Release and Quitclaim
in favor of the employer in exchange for
appropriate separation benefit and retirement
package. The employer may then enter into a
management contract with another company (Wack
Wack Golf & Country Club v. NLRC, GR 149793).
May the union demand the employer to consult
the union before it may contract out jobs that
may last for six months or more?
No. Contracting out is a management right, subject
to regulations already existing. The limitations set
by the union are too specific and may not be
applicable to the situations that the company and
the union may face in the future (San Miguel
Employees Union v. Bersamira, 186 SCRA 496).
What are project employees?
They are those with employment that has been
fixed for a specific project or undertaking, the
completion or termination of which has been
determined at the time of the engagement of the
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employee or where the work or service to be
performed is seasonal in nature and the
employment is for the duration of the season
(Sandoval Shipping Inc. v. NLRC, 136 SCRA 674).
What is the principal test to determine whether
particular employees are regular employees as
distinguished from project employees?
The test is whether the project employees were
assigned to carry out a specific project or
undertaking, the duration and scope of which were
specified at the time the employees were engaged
for that project (ALU-TUCP v. NLRC, G.R. No.
109902).
Will the assertion that length of the project has
gone beyond one year qualify the employee to
become regular?
No. The second paragraph of Art. 280, providing
that an employee who has served for at least one
year shall be considered a regular employee relates
to casual employees, not to project employees
(Mercado v. NLRC, GR 9869).
What is the documentary requirement for
project employment?
The termination of employment in the particular
project/undertaking should be reported to DOLE
Regional Office having jurisdiction over the
workplace within 30 days following the date of his
separation from work (Samson v. NLRC, GR
113166).
When is an employee in a work pool a regular
employee and when a casual employee?
If the employees are free to leave anytime and offer
their services to other employers, they may be
considered as casual employees (Raycor Aircontrol
Systems, Inc. v. NLRC, GR 114290).
Are employees whose work depend on the
availability of contracts or projects regular
employees or project employees for so many
years?
They are project employees. The duration of the
employment of its workforce is not permanent but
coterminous with the projects to which they are
assigned and from whose payrolls they are paid
(Cartagenas v. Romago Electric Company, GR
82973).
The general rule is that project employees are
not entitled to separation pay. What is the
exception?
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The employees are entitled to separation pay when
the project itself was still on-going and so
continued to require the workers’ services for its
completion when they were dismissed from
employment (De Ocampo v. NLRC, GR 81077).
What are the three types of non-project
employees?
a. Probationary employees
b. Regular employees
c. Casual employees (De Jesus v. Philippine
National construction Corp., GR 89990).
What makes a project employee regular?
The employer is considered regular where the
period have been imposed to preclude the
acquisition of tenurial security by the employer
(Samson v. NLRC, GR 113166).
The employments become non-co-terminous with
specific projects when the employees are
continuously rehired due to the demands of the
employer’s business and were re-engaged for many
more projects without interruption (Tomas Lao
Construction v. NLRC, GR 116781).
What is the effect of the cessation of work
activities to the regular employee whose job is
related to several projects?
The employment relation is not severed by merely
being suspended. The employees are merely on
leave of absence without pay until they are
reemployed (Maraguinot and Enero v. NLRC, GR
120969).
When may a project employee or a member of a
work pool acquire the status of a regular
employee?
a. There is a continuous rehiring of project
employees even after cessation of a
project; and
b. The tasks performed by the alleged project
employee are vital, necessary and
indispensible to the usual business or trade
of the employer (Maraguinot and Enero
v. NLRC, GR 120969).
May a project employee who has become a
regular employee be dismissed on the ground of
completion of project?
No. Such reason is not justified (Maraguinot and
Enero v. NLRC, GR 120969).
What is the computation for backwages of
project employees who were illegally separated
from employment?
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It is the amounts corresponding to what could have
been earned during the period from the date the
employees were dismissed until their reinstatement.
The time when the unit in which they belong were
not undertaking any projects should be deducted
(Maraguinot and Enero v. NLRC, GR 120969).
What is the employment status of regular
seasonal employees during offseason?
During the offseason, they are not separated from
service but merely on leave of absence without pay
until they are reemployed. The employment
relationship is merely suspended (Manila Hotel
Co. v. CIR, GR L-18875).
What must be shown for seasonal employees not
to be considered regular employees?
The employer must show that the employees were
hired only for the duration of one season
(Hacienda Fatima v. National Federation of
Sugarcane Workers, GR 149440).
What are the seasonal employees entitled to
when they become regular seasonal employees?
Since the employer-employee relationship is
merely suspended, the laborers have a reason to
expect that such activities will be resumed
(Industrial-Commercial-Agricultural Workers’
Union v. CIR, GR L-21465).
May an employment contract be made with a
fixed period?
Yes. However, to be valid, it must be entered
without any force, duress or improper pressure
being brought to bear upon the employee and
absent any other circumstance vitiating consent.
The employer and the employee should deal with
each other in more or less equal terms (Brent
School v. Zamora, GR 48494).
Generally, a fixed-period employee is not
regular because the job will exist only for a
specified period of time. Nonetheless, in what
sense may such worker be considered regular?
a. The nature of his work is necessary or
desirable in the principal business of the
employer; and
b. He enjoys security of tenure during the
limited time of his employment (Vinta
Maritime Co v. NLRC, GR 113911).
When is an employment contract with a fixed
term invalid?
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It is invalid when the purpose behind the contract
was to evade the application of the labor laws,
making it appear that the employee was not regular
(Cielo v. NLRC, GR 78693).
What is the effect when employees who had
contracts with a fixed term and perform
activities necessary to the usual business of the
employer are allowed to work beyond such
term?
If the employees continue to work after the term,
they attain regular status (Viernes v. NLRC, GR
108405).
Is it permissible for an employer to hire casual
employees every month for five months, after
which, their services are terminated and
replaced by other casual employees on the same
five month duration?
No. It is considered a circumvention of the
employees’ right to security of tenure and to other
benefits (Purefoods Corp. v. NLRC, GR 122653).
What is the effect of several renewals of the
fixed-period employment in regular jobs?
They are considered regular employees (Philips
Semiconductors v. Fadriquela, GR 141717).
Are seafarers contractuals despite performing
activities desirable and necessary to the business
of the employer?
Yes. Art. 280 of the Labor Code does not apply to
overseas employment. Their employment is
governed by the POEA Standard Employment
Contract (Millares v. NLRC, GR 110524).
Generally, probationary employment shall not
exceed 6 months from the date employee started
working. What is the exception?
It may be extended when covered by an
apprenticeship agreement stipulating a longer
period (Art. 281, LC).
How are probationary employees validly
terminated?
They may be terminated for a just cause or when he
fails to qualify as a regular employee in accordance
with reasonable standards made known by the
employee at the time of his engagement (Art. 281,
LC).
What is the effect when the probationary
employee works after the probationary period?
The employee is considered regular (Art. 281, LC).
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What is the purpose of probationary
employment?
It is for the employer to determine whether the
employee is qualified for permanent employment
(International Catholic Migration Commission v.
NLRC, GR 72222).
May a probationary employee be terminated
even before the expiration of 6 months?
Yes, provided that there was sufficient cause for
terminating his probationary employment for less
than 6 months (MERALCO v. NLRC, GR 83751).
What is the effect when the probationary
employee was not informed of the standard that
would qualify him as regular employee?
The employee is deemed to have been hired from
day one as a regular employee (Cielo v. NLRC, 193
SCRA 140).
Are probationary employees entitled to security
of tenure?
Yes. During their tenure of employment or before
the contract expires, they cannot be removed
except for cause as provided by law (Manila Hotel
Corp. v. NLRC, GR L-53453).
What is the effect if the position of the
probationary employee is abolished the day
before the employee becomes regular?
It may be considered highly suspicious as
circumvention of the security of tenure. The
employee is presumed to have satisfactory
performance of his work (Manila Hotel Corp. v.
NLRC, GR L-53453).
What are the limitations to the termination of
probationary employees?
a. It must be exercised in accordance with
the specific requirements of the contract
b. If a particular time is prescribed, the
termination must be within such time and
if formal notice is required, then that form
must be used
c. The employer’s dissatisfaction must be
real and in good faith
d. No unlawful discrimination in the
dismissal (Manila Hotel Corp. v. NLRC,
GR L-53453).
What is the effect of successive rehiring of
probationary employees?
The employee will be considered regular as it may
be construed as a ploy to avoid the obligations
imposed by law (Octavio v. NLRC, GR 88636).
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Generally, probationary employment should be
limited to six months. What are the exceptions?
a. When the parties agree otherwise
b. When it is established by company policy
or when required by the nature of work to
be performed by the employee (Buiser v.
Legardo, GR L-63316).
May the employer and the employee validly
agree to extend the probationary period beyond
six months?
Yes. When the employer extends the probationary
period to give the employee a chance to meet the
requirements of the job, it is considered a valid
extension which will not make the employee
regular (Mariwasa Manufacturing v. Legardo, GR
74246).
How is the last day of probationary status of the
employee computed?
It is the end of the (30 days x 6 months) 180th day,
in conformity with Art. 13 of the Civil Code
(Mitsubishi Motors v. Chrysler Phil. Labor Union,
GR 148738).
When may teachers be considered permanent?
Full time teachers who have rendered three
consecutive years of satisfactory services shall be
considered permanent (University of Sto. Tomas v.
NLRC, GR 855139).
What are the just causes for termination by the
employer?
a. Serious misconduct or willful
disobedience by the employee of the
lawful orders of his employer or
representative in connection with his
work;
b. Gross and habitual neglect by the
employee of his duties;
c. Fraud or willful breach by the employee
of the trust reposed in him by his
employer or duly authorized
representative;
d. Commission of a crime or offense by the
employee against the person of his
employer or any immediate member of his
family or his duly authorized
representative;
e. Other causes analogous to the foregoing
(Art. 282, LC).
What is the limitation on how the employees
should manage their people?
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So long as a company’s prerogatives are exercised
in good faith for the advancement of the
employer’s interest and not for the purpose of
defeating or circumventing the rights of the
employees under special laws or under valid
agreements, the Supreme Court will uphold them
(San Miguel Brewery v. Ople, GR 53515).
What are the safeguards for a transfer to be
valid?
When the transfer is not unreasonable, nor
inconvenient, nor prejudicial to him, and it does not
involve a demotion in rank or diminution of his
salaries, benefits, and other privileges, the
employee may not complain that it amounts to a
constructive dismissal (PT&T v. Laplana, GR
76645).
Does the employer have a right to demote
employees?
Yes. It is management prerogative to transfer,
demote, discipline and even to dismiss an
employee to protect its business, provided it is not
tainted with unfair labor practice (Petrophil Corp.
v. NLRC, GR L-64048).
What constitute serious misconduct for
dismissal?
The misconduct must be grave and aggravated in
character. It should be in connection with the
employee’s work (Azucena, p. 753).
What is the test to determine if an employee
should be dismissed on the ground of
immorality?
It is whether, taking the nature of the employment
into account, the immoral acts complained of such
as to render the servant incapable of performing the
service properly or were calculated to injure the
employer’s business (Azucena, p. 754)
Is sexual harassment in the workplace a ground
for dismissal?
Yes (Villarama v. NLRC, GR 106341).
Would a fisticuff on a private matter between
two employees which had no apparent
deleterious effect on the substantial interest of
the company warrant dismissal from
employment?
No (North Camarines Lumber Co. v. Berreda, GR
75436).
May a teacher be dismissed solely on the ground
of marrying her student?
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No. If there is no direct evidence to show immoral
acts were committed or that she took advantage of
her position, there is no basis to dismiss her (Chua-
Qua v. Clave, GR L-49549).
May teachers be dismissed from employment on
the ground of immorality by having an extra-
marital relationship?
Yes. When a teacher engages in extra-marital
relationship, especially when the parties are both
married, such behavior amounts to immorality,
justifying his dismissal from employment (Santos,
Jr. v. NLRC, GR 115795).
How should immoral conduct be to constitute a
ground for dismissal?
It must be corrupt as to constitute a criminal act or
so unprincipled as to be reprehensible to a high
degree or committed under such scandalous or
revolting circumstances as to shock the common
sense of decency (Narag v. Narag, A.C. 3405).
May an employee be terminated on the ground
of a company policy prohibiting marriage
between employees?
It depends. Such company policy may be valid only
if there is a legitimate business concern in
imposing the policy (Star Paper Corp. v. Simbol,
GR 164774).
What are the requisites for willful disobedience
to constitute a ground for termination?
a. The order is reasonable and lawful
b. Sufficiently known to the employee
c. In connection with the duties which the
employee has been engaged to discharge
(Azucena, p. 758).
May employees refuse to comply with company
policies merely because they do not like the
policy?
No. It does not follow that just because the
employees are unable to realize or appreciate the
desirability of the employer’s policies or rules, the
latter were laid down to oppress the former. The
employees’ defiance of authority of the employer
left the latter with no alternative except to impose
those actions (GTE Directories Corp v. Sanchez,
GR 76219).
What are the elements of willful disobedience to
constitute a ground for termination of
employment?
a. The employee’s assailed conduct must
have been willful or intentional
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b. The order violated is reasonable, lawful,
made known to the employee and must
pertain to the duties which he had been
engaged to discharge (Gold City
Integrated Port Services v. NLRC, GR
860000).
Management has the right to transfer or
reassign an employee. What is the limitation to
this right?
It cannot be done where it is vitiated by improper
motive and is merely a disguised attempt to remove
or punish the employee sought to be transferred
(Bank of the Philippine Islands Employees Union
v. NLRC, GR 78842-44).
May a Med Rep validly refuse his reassignment
from Manila to Cagayan Valley?
No. By the very nature of his employment, a drug
salesman or medical representative is expected to
travel. He should anticipate reassignment according
to the demands of the business (Abbot
Laboratories v. NLRC, GR 76959).
May the employer validly transfer two of its
working students from Tarlac to Manila without
sufficient business reasons?
No. It was grossly inconvenient to the workers and
would mean a disruption of their studies. There is
also no business urgency that necessitated their
transfer. It may be construed as a means to
demoralize union members (Yuco Chemical
Industries v. Ministry of Labor and Employment,
GR 75656).
May an employee refuse the transfer from one
city to another, in the same province, despite
being reimbursed of the cost of transportation
and salary increase?
No. The transfer is valid absent any showing of bad
faith on the part of the employer in effecting the
transfer. The refusal of the employee to the transfer
constitutes willful disobedience of a lawful order of
the employer, warranting dismissal (Homeowners
Savings and Loan Association, Inc. v. M. Cabatbat,
GR 97067).
When may an employee validly refuse a transfer
based on inconvenience?
The transfer order becomes flawed and
unenforceable if it fails the criteria of lawfulness
and reasonableness (Azucena, p. 766).
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What is the limit of the prerogative of
management to transfer an employee from one
position to another?
It cannot be used as a subterfuge by the employer
to rid himself of an undesirable worker. It must be
shown that the transfer was not unreasonable,
inconvenient or prejudicial to the employee; nor
does it involve a demotion in rank or benefits (Blue
Dairy Corp v. NLRC, GR 129843).
May an employee be removed for refusing to
accept a transfer that would give the employee a
higher pay and rank?
No. Such transfer is in the nature of a promotion.
There is no law that compels an employee to a
promotion. In refusing, the employee is merely
exercising his right, and thus, cannot be removed
for that reason (Dosch v. NLRC, GR 51182).
How is a transfer distinguished from a
promotion?
Transfer refers to lateral movement from one
position to another of equivalent rank, level or
salary.
Promotion denotes a scalar ascent of an employee
to another position higher either in rank or salary.
(Millares v. Subido, 20 SCRA 954).
What is the requirement for neglect of duties to
be a ground for dismissal?
It must not only be gross but also habitual. The
single or isolated acts of negligence do not
constitute a just cause for dismissal of the
employee (Department of Labor Manual, Sec.
4343.01[27]).
What is the requirement to constitute
abandonment of job as a ground for dismissal of
an employee?
a. The failure to report for work or absence
without valid or justifiable reason, and
b. A clear intention to sever the employer-
employee relationship, as manifested by
some overt acts (Labor v. NLRC, GR
110388).
Usually, filing a complaint for illegal dismissal
negates abandonment. What is an example when
the dismissal of the employee was held valid
despite such complaint?
If the illegal dismissal complaint was intended to
gain leverage for the employee to induce the
employer to withdraw the criminal charge filed
against the employee. Abandonment not having
been disproved, the employee’s dismissal on that
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ground is held valid (Arc-Men Foods Industries
Corp. v. NLRC, GR 113721).
Attitude problem may be a just cause to dismiss
an employee since it is analogous to loss of
confidence. What is required for dismissal on
this ground to be valid?
There should be substantial evidence to support the
termination on the ground of attitude. The mere
mention of negative feedback from her team
members is not enough proof (Heavylift Manila v.
CA, GR 154410).
May an employee be excused for falsifying time
cards on the ground that it was a superior who
ordered him to do so?
No. In order for obedience to be considered as an
exempting circumstance, it must be in compliance
with a lawful order not opposed to a higher positive
duty of the subaltern, and that the person
commanding him act within the scope of his
authority (San Miguel Corporation v. NLRC, GR
82467).
What is required for loss of confidence to be
considered as ground for dismissal?
It must be genuine. It must also be related to the
performance of the duties of the employee such as
would show him to be thereby unfit to continue
working for the employer (Azucena, p. 781).
To which kinds of employees should termination
based on loss of confidence ideally apply?
a. Employees occupying positions of trust
and confidence
b. Situations where the employee is routinely
charged with the care and custody of the
employer’s money or property (N.
Mabeza v. NLRC, GR 118506).
Should loss of confidence as ground for
termination be shown beyond reasonable doubt?
No. It is sufficient if there is some basis for the loss
of confidence or if the employer has reasonable
ground to believe that the employee is responsible
and that the nature of his participation rendered
him unworthy of trust and confidence demanded by
his position (Reyes v. Ministry of Labor, GR
47805).
Is conviction of the employee in a criminal case
required for such employee to be terminated on
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the ground of commission of crime or offense
against the person of the employer or the
employer’s immediate family?
No. Conviction in a criminal case is not required
(Azucena, p. 784).
What is necessary to show in order for an act to
be considered an analogous cause for
termination of an employee?
The cause must be due to the voluntary and/or
willful act or omission of the employee (Nadura v.
Benguet Consolidated, GR L-17780).
Theft committed by an employee against
another is not work related, hence, not serious
misconduct. May the employee still be
dismissed?
Yes. It may be considered and analogous cause. It
is analogous to serious misconduct where voluntary
and/or willful or omission attesting to an
employee’s moral depravity (John Hancock Life
Insurance Corp. v. J. Davis, GR 169549).
What are the authorized causes of terminating
the employment of an employee according to the
Labor Code?
a. Installation of labor-saving devices
b. Redundancy
c. Retrenchment to prevent losses
d. Closing or cessation of operation of the
establishment (Art. 283, LC).
e. Disease (Art. 284, LC).
What is the documentary requirement of
terminating the employment on the ground of
just causes?
There should be written notice on the worker and
the Department of Labor and Employment at least
one month before the intended date thereof (Art.
283, LC).
What is the compensation to be received by the
employee when terminated due to authorized
causes?
If due to installation of labor saving devices or
redundancy
Higher of 1 month
Installation of labor saving pay or 1 month pay
devices or redundancy for every year of
service
Retrenchment, closure, Higher of 1 month
cessation of operations not pay or ½ month pay
due to serious business for every year of
losses of financial service
rerverses
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Is the list of authorized causes under the Labor
Code exclusive?
No (Azucena, p. 787).
When is an employee entitled to backwages and
when is the employee entitled to separation pay?
When an employee is unjustly dismissed from
work, such employee is entitled to reinstatement
without loss and other rights and other privileges
and to his full backwages.
The employee whose employment is terminated
due to any of the causes under Art. 283 is entitled
to separation pay (Azucena, p. 788).
When does redundancy exist?
It exists when the services of an employee are in
excess of what is reasonableas demanded by the
actual requirements of the enterprise (Wiltshire
File Co., v. NLRC, GR 82249).
Can an employee show that another person is
holding the same position in the company to
justify that his position is not redundant?
No. Redundancy does not ordinarily refer to
duplication of work (Wiltshire File Co., v. NLRC,
GR 82249).
May an employee complain of illegal dismissal
when transferred from Baguio to Makati when
it was done because of the abolition of the
position the employee had in Baguio?
No. Management has prerogative to abolish a
position which it deems no longer necessary. The
transfer was merely an accommodation because the
employee may be terminated under an authorized
cause (Great Pacific Life Assurance Corp. v.
NLRC, GR 88011).
May a regular employee complain of illegal
dismissal when the work was replaced by an
independent contractor?
No. It is a legitimate business decision to
implement a cost-saving program through getting
an independent contractor. There must be proof
that management abused its discretion or acted in a
malicious or arbitrary manner to be liable of illegal
dismissal (Serrano v. NLRC, GR 117040).
What must be shown by the employer to
terminate an employee due to retrenchment?
The employer bears the burden to prove his
allegation of economic or business reverses
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(Precision Electronics Corporation v. NLRC, GR
86657).
What are the requirements of valid
retrenchment?
a. It is necessary to prevent or minimize
losses and such losses are proven
b. Written notice is given to the employees
and the Department of Labor and
Employment at least one month before the
intended date or retrenchment
c. Separation pay (Art. 283, LC)
d. Good faith on the part of the employer
e. The employer uses fair and reasonable
criteria in ascertaining who will be
dismissed or retained (Asian Alcohol
Corporation v. NLRC, 305 SCRA 416).
Employees who were retrenched staged a strike.
The strike was found to be illegal. Will be
terminated employees still receive separation
pay?
Yes. The declaration that they had lost their
employment status produced no real significance
since their retrenchment preceded the declaration
of strike (Asionics Phil., Inc. v. NLRC, GR
124950).
What are some of the criteria the employer can
use in selecting employees to be dismissed on the
account of retrenchment?
a. Less preferred status
b. Efficiency rating
c. Seniority (Asiaworld Publishing House,
Inc. v. Ople, GR 56398).
Are actual business losses necessary before
employers may retrench employees?
No. Preventive retrenchment is lawful (Lopez
Sugar Corporation v. Federation of Free Workers,
GR 75700-01).
What is the standard to justify retrenchment?
a. Losses expected should be substantial
b. Substantial loss must apprehended must
be reasonable imminent
c. Reasonable necessity and likely to
effectively prevent the expected losses
d. Losses, actual or imminent, must be
proven by sufficient and convincing
evidence (Lopez Sugar Corporation v.
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Federation of Free Workers, GR 75700-
01).
What is the effect if the employer presents
financial statements to justify retrenchment that
do not bear the signature of a certified public
accountant or audited by an external auditor?
It has no evidentiary value (Uichico v. NLRC, GR
121434).
What is the effect when the employer hired new
employees to replace the retrenched employees?
It could be an illegal dismissal or an unfair labor
practice if done on account of the union activities
of the employees (Bogo-Medellin Supercane
Planters Association v. NLRC, GR 97846).
Distinguish redundancy from retrenchment.
Redundancy results from the fact that the position
of the employee has become superfluous, an excess
over what is actually needed, even if the business
has not suffered losses. Separation pay is higher.
Retrenchment is linked with losses. It is a cost-
cutting measure (Azucena, p. 805).
Distinguish permanent retrenchment from
temporary retrenchment.
Permanent retrenchment is contemplated in Art.
283.
Temporary retrenchment is mentioned in Art. 286
over the employee who is still willing to work but
is not recalled. He is deemed separated or
constructively dismissed (Azucena, p. 805).
What is the effect when the number of days an
employee works is decreased due to financial
losses of the business but the employee is rotated
by the employer over about 6 months?
The employee is considered to have been
effectively deprived of a gainful occupation. The
employee is considered dismissed or retrenched
from employment (International Hardware v.
NLRC, GR 80770).
What is the effect when the reason for reduction
of work days was not specifically explained and
applied only to union officers?
It amounted to constructive dismissal and ULP
(Unicorn Safety Glass v. Basarte, GR 154689).
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What happens when the corporation resumed
operations barely a month after the supposed
folding up and only after obtaining an
agreement with the remaining union officers
that they would not organize a union if they are
readmitted to work?
Such acts constitute ULP (Me Shurn Corp. v. Me
Shurn-FSM, GR 156292).
To whom should the factual issue of financial
losses be raised?
Losses are proven before the Labor Arbiter or the
NLRC (Me Shurn Corp. v. Me Shurn-FSM, GR
156292).
Are financial losses needed before a business can
be closed down?
No. An employer may close or cease his business
operations or undertaking even if he is not
suffering from serious business losses or financial
reverses, as long as he pay his employees their
termination pay in the amount corresponding to
their length of service (Catatista v. NLRC, GR
102422).
Does Art. 283 of the Labor Code contemplate
only closure of the whole business before the
provision becomes operative?
No. It includes both the complete cessation of
operations and cessation of only part of a
company’s activities (Coca-Cola Bottlers v. NLRC,
GR 93530-36).
Is temporary shutdown of a portion a business a
valid reason to terminate employees?
It is not a valid reason where operations continued
after such repairs and it is apparent that the closure
of the company’s warehouse was merely a ploy to
get rid of the employees (Brotherhood Labor Unity
Movement v. Zamora, GR 48645).
Should separation pay be paid in case of closure
because of serious business losses?
No. When closure is not due to serious business
losses or financial reverses is the employer liable
for separation pay. If the closure is due to business
losses, the law does not impose any obligation
upon the employer to pay separation benefits
(North Davao Mining Corp. v. NLRC, GR 112546).
Does previous generosity obligate the company
to extend the same generosity to newly
terminated employees?
It depends on the circumstances. Generally, the
employer should extend the same generosity on the
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ground of equality. However, when the company is
not able to extend the same amount of generosity
because of business losses that did not exist when
the first set of termination was made, then, there is
no reason for the company to extend the same
amount of generosity (North Davao Mining Corp.
v. NLRC, GR 112546).
Are employees entitled to separation pay when
closure of the business was due to passing of a
law, something which is beyond the control of
the employer?
No. The closure contemplated in Art. 283 of the
Labor Code is a unilateral and voluntary act on the
part of the employer to close the business
establishment, for an employer to be liable for
separation pay (National Federation of Labor v.
NLRC, GR 127718).
Are employers entitled to separation pay when
the severance of employer-employee
relationship is due to the expiration of their
working relationship with the lessee?
No. The case entails expiration of tenure, not
dismissal (Hilado v. Leogardo, GR 65863).
What is the effect of the sale of the business to
the employees?
It is considered a closure of business and the
employees lose their jobs, with post-employment
benefits, unless the new owner opts to retain or
rehire them (Azucena, p. 823).
What is the rule with regard to employees when
the business is sold?
The transferee is not liable and has no legal duty to
absorb the transferor’s employees. The transferee is
liable when the liability is assumed or when
liability arises because of the new owner’s
participation in defeating the rights of the
employees (Manlimos v. NLRC, GR 113337).
Are employees entitled to retirement fees since
their employment in the old corporation when it
is already merged with another?
Yes. The merged corporation is a successor-
employer. It is answerable to the lawful obligations
of the predecessor employers (Filipinas Port
Services v. NLRC, GR 97237).
An employee may be terminated when found
suffering from any disease and whose continued
employment is prohibited by law or is
prejudicial to his health as well as to the health
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of his co-employees. What are the requirements
to terminate an employee on this ground?
a. Separation pay equivalent to 1 month
salary or ½ month salary for every year of
service.
b. Certification by competent public health
authority that the nature of such disease is
that it cannot be cured within 6 months
even with proper medical treatment
(Azucena, p. 828).
What are the procedural requirements for
terminating an employee based on just cause?
a. Notice of intention to dismiss, indicating
his acts or omissions complained against
b. Notice of the decision to dismiss
c. Opportunity to answer and rebut the
charges against him, in between such
notice (MGM Marine Services v. NLRC,
GR 114313).
What is the procedural requirement for
terminating an employee based on authorized
causes under Art. 283?
Service of written notice to the employee and the
appropriate Regional Office of the Department at
least 30 days before the effectivity of the
termination, specifying the grounds (Azucena, p.
833)
What is the procedural requirement for
terminating an employee based on completion of
contract?
No prior notice is required if brought about by
completion of the contract or phase thereof. If
based on the failure of the employee to meet
standards, sufficient notice must be given within a
reasonable time (Azucena, p. 833).
Does the requirement of due process before
terminating an employee apply only to rank and
file employees?
No. It applies equally to all workers, including
managerial employees (Offshore Industries v.
NLRC, GR 83108).
Does procedural due process require a formal
trial?
No. Summary proceedings may be conducted.
What is essential is ample opportunity to be heard
(Homeowners Savings and Loan Association v.
NLRC, GR 97067).
Will a Notice of Preventive Suspension and
subsequent interview sufficient compliance for
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the requirements of notice and opportunity to be
heard?
No. Notice should appraise the employee of the
causes of his dismissal. Opportunity to be heard
should give the employee an opportunity to refute
the accusations leveled against him (De Vera v.
NLRC, GR 93070).
Is consultation with the union sufficient notice to
terminate an employee?
No. Such consultation or consent by the union is
not a substitute for actual observance of the rights
of the employee to notice and opportunity to be
heard (Century Textile Mills v. NLRC, GR 77859).
What is “ample opportunity to be heard” as
contemplated by the law?
It is meant every kind of assistance that
management must accord to the employee to enable
him to prepare adequately for his defense. It should
be construed as a period of at least 5 days from
receipt of notice (Azucena, p. 835).
Is the employer justified in not giving the
employee ample opportunity to be heard when
the employee is terminated from employment
due to the union security clause?
No. The right to be informed of the charges against
him and to reasonable opportunity to be heard is
not wiped away by a union security clause or a
union shop clause in the CBA (Carino v. NLRC,
GR 91086).
When the employee admits his guilt, there is no
need for a hearing. What is the requirement on
such cases?
All that is needed is to inform the employee of the
findings of management (China Banking Corp. v.
Borromeo, GR 156515).
There is no need for investigation and hearing
when the employee is to be terminated due to
authorized cause. What may the employee do to
contest the termination?
The appropriate forum for such controversion
would be the Department of Labor and
Employment (Withshire File Co. v. NLRC, GR
82249)
May the employer inform all the employees of
their termination due to the expiration of the
lease through a notice of closure on the
employee’s bulletin board?
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No. It is not sufficient compliance with the
statutory requirement which requires that the
employer must notify him in writing (Shoppers
Gain Supermart v. NLRC, GR 110731).
Is Voluntary Arbitration substantial compliance
with the one-month mandatory notice
requirement under termination due to
authorized causes?
Yes. Voluntary Arbitration proceedings more than
satisfied the intention of the law considering parties
were accorded the benefit of a hearing, in addition
to the right to present their respective position
papers and documentary evidence (Revidad v.
NLRC, GR 111105).
When is notice not required for termination of
an employee based on retrenchment due to
authorized causes?
If an employee consented to his retrenchment or
voluntarily applied for retrenchment due to
authorized causes, the required previous notice to
the DOLE is not necessary (International
Hardware Inc. v. NLRC, GR 80770).
What is the quantum of evidence that is
required in administrative cases involving
termination of employees?
There must be substantial evidence to support the
finding. It is such relevant evidence as a reasonable
mind might accept as adequate to support a
conclusion (Ang Tibay v. CIR, 69 Phil. 635).
What is the effect of retention of an employee
after actual discovery of an act of misconduct?
The act may be considered condoned as to be no
longer available as a ground of dismissal (Azucena,
p. 843).
When may an employee be placed under
preventive suspension?
The employer may do so if his continued
employment poses a serious and imminent threat to
the life or property of the employer or his co-
workers (DO 9, 1997).
Is continued absence and tardiness of a sales
clerk, who was able to complete her tasks
without prejudice to the company’s interest a
ground for preventive suspension?
No. Her tardiness does not, in any way, pose
serious threats to the property of the employer
(Global Incorporated v. Atienza, GR L-51612-13).
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How long is the maximum period for preventive
suspension?
It can last no longer than 30 days. During the
period, wages and other benefits should be paid to
the employee
For project and nonproject employees in the
construction industry, it cannot be longer than 15
days(Sec. 4, DO 19, 1993).
What is the effect if preventive suspension is
extended beyond 30 days?
It may be construed as constructive dismissal
(Hyatt Taxi Services, Inc. v. Catinoy, GR 143204).
The penalty must be proportionate to the
offense in disciplinary cases against an
employee. What may be a factor in determining
the proper penalty?
a. The value of the property taken (Gelmart
Industries Phils., Inc. v. NLRC, GR
85668).
b. Previous offenses is the infractions are
related to the subsequent offense upon
which the basis for termination (Filipro v.
Ople, 182 SCRA 1).
When and where should a complaint for illegal
dismissal be filed?
It is filed with Regional Branch of the NLRC,
under the jurisdiction of the Labor Arbiter. It is
filed within 4 years from the time the employee is
dismissed (Azucena, p. 848).
What are the four kinds of separation pay?
a. Statutory separation pay is cases of legal
termination under Art. 283 and 284
b. Separation pay as financial assistance, as
an act of social justice
c. Separation pay in lieu of reinstatement
where reinstatement is ordered but not
feasible
d. Separation pay as employment benefit
granted in a CBA or company policy
(Azucena, p. 850).
What is included in the computation for
statutory separation pay?
It should include not just the basic salary but also
the regular allowance that an employee has been
receiving (Planters Products, Inc. v. NLRC, GR
78524).
Should commissions be included in the base
figure in computing statutory separation pay?
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No. Such commissions must be earned by actual
market transactions (Soriano v. NLRC, GR 75510).
Is an employee who admitted to have committed
acts of dishonesty entitled to separation pay?
No. A person dismissed for cause is not entitled to
separation pay (PLDT v. NLRC, GR 80609).
What is the standard in determining when an
employee is entitled to separation pay as a
matter of equity?
It is allowed only in cases where the employee is
validly dismissed for cases other than serious
misconduct or those reflecting his moral character
(PLDT v. NLRC, GR 80609).
May the Court delete the award for separation
pay based on equity when improper despite the
fact the employer failed to question the
monetary award?
Yes. If the resolution of the issue of lawfulness of
the award of financial assistance to the employee is
essential to render substantial justice as between
the parties, the Court may pass upon such issue and
rule accordingly (Chua v. Nestle, GR 159460).
As a general rule, an employee who voluntarily
resigns from employment is not entitled to
separation pay. What are the exceptions?
The exceptions are when it is stipulated in the
employment contract of collective bargaining
agreement, or it is sanctioned by established
employer practice of policy (Hinatuan Mining
Corp. v. NLRC, GR 117394).
What is the difference between backwages and
reinstatement?
Backwages, in general, are granted on the grounds
of equity for earnings which a worker or employee
has lost due to his illegal dismissal. It presupposes
illegal termination.
Reinstatement is the restoration to a state of
condition from which one had been removed or
separated (Torillo v. Leogardo, GR 77205).
Can there be a finding of illegal dismissal
without the payment of backwages?
Yes. The court may not only mitigate, but also
absolve the employer from liability for backwages
where good faith is evident (Durabilt Recapping
Plant Company v. NLRC, GR 76746).
How is separation pay different from
backwages?
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Backwages is a form of relief that restores the
income that was lost by reason of unlawful
dismissal.
Separation pay is oriented towards the immediate
future, the transitional period the dismissed
employee must undergo before locating a
replacement job (Torillo v. Leogardo, GR 77205).
Distinguish backwages from unpaid salary?
Unpaid salaries refer to those earned prior to
dismissal. Backwages refer to those earnings lost
after and because of illegal dismissal (General
Baptist Bible College v. NLRC, GR 85534).
What is the effect when the employee failed to
claim backwages in a case for illegal dismissal?
It has no effect. It is a substantive right that cannot
be defeated by a mere procedural lapse (General
Baptist Bible College v. NLRC, GR 85534).
What is the effect when the NLRC did not
award backwages and the employee failed to
raise this issue on appeal?
It is not a bar of the Court of Appeals from
awarding backwages when necessary in arriving at
a complete and just resolution of the case or to
serve the interests of justice or to avoid dispensing
piecemeal justice (St. Michael’s Institute v. Santos,
GR 145280).
How is backwages computed?
Backwages is pegged at the wage rate at the time of
the employee’s dismissal, inclusive of regular
allowances that the employee had been receiving
such as emergency and living allowances and the
13th month pay mandated under the law (Equitable
Banking Corp. v. Sadac, GR 164772).
After the employee is illegally terminated, there
had been annual general salary increases in the
company. Should these be included in
computing for backpay?
No. Salary increase is neither an allowance nor
benefit (Equitable Banking Corp. v. Sadac, GR
164772).
What is the time frame for computing
backwages?
It is computed from the time that his compensation
was withheld from himor from the time of his
illegal dismissal, up to the time of his actual
reinstatement (Philippine Industrial Security
Agency Corp. v. Dapiton, 377 Phil 951).
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What is the prescriptive period for backwages in
illegal dismissal cases?
The employee is given 4 yearsfrom the time of his
illegal dismissal within which to institute the
complaint (Reyes v. NLRC, GR 180551).
What is the effect to backwages when the
employee was able to earn during the period of
illegal dismissal?
Backwages, should not, as a general rule, be
diminished or reduced by the earnings derived by
him elsewhere during the period of his illegal
dismissal. They are entitled to full backwages
(Bustamante v. NLRC, GR 111651).
What is the effect when the employee who was
illegally dismissed has reached retirement age?
Reinstatement is no longer feasible. Backwages
will not extend beyond the employee’s retirement
date (Equitable Banking Corp. v. NLRC, GR
102467).
When is extraordinary inflation applied in the
imposition of interest for backwages?
Effects of extraordinary inflation are not to be
applied without an agreement between the parties
and without an official declaration thereof by
competent authorities (Lantion v. NLRC, GR
82028).
What is the effect of the failure to comply with
the notice requirements of the labor code to the
employee who was dismissed under a just cause
or authorized cause?
The dismissal remains valid but the employer is
liable for damages to account of failure to give a
formal notice as required by law (Wenphil
Corporation v. NLRC, GR 80587).
How is reinstatement incompatible with guilt?
Where the totality of evidence is sufficient to
warrant the dismissal of the employees, the law
warrants their dismissal without making any
distinction between a first offender and a habitual
delinquent (Colgate Palmolive Philippines, Inc. v.
Ople, GR 73681).
What is the relationship between backwages and
illegal dismissal?
An award of backwages presupposes a finding of
illegal dismissal. However, not every case of illegal
dismissal entails an award of backwages (Azucena,
p 884).
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What happens when the illegally dismissed
employee cannot be reinstated due to changed
circumstances?
The employee is to be paid full backwages from the
time of dismissal up to the time his employment
would have actually ended due to the changed
circumstance (Azucena, pp. 884-885).
When may an employee be reinstated despite
the closure of the original employer?
The employee can be reinstated when there is
continuity of business, without substantial break,
between the original employer and the new
employer (Pepsi-cola Bottling Co., et al. v. NLRC,
GR 101900).
Separation pay can be given instead of
reinstatement in cases where there is “strained
relations” between the employer and employee.
When can this doctrine be applied?
It should be proved that the employee concerned
occupies a position where he enjoys the trust and
confidence of his employer; and that it is likely that
if reinstated, an atmosphere of antipathy and
antagonism may be generated as to adversely affect
the efficiency and productivity of the employee
concerned (Globe-Mackay Cable and Radio Corp.
v. NLRC, GR 82511).
What must the employer do if a replacement of
the illegally dismissed employee was already
hired?
The illegally dismissed employee should be
reinstated to a substantially equivalent position
(Pedroso v. Castro, GR 70361).
How much is the separation pay in lieu of
reinstatement?
It is one month pay for every year of service (Gaco
v. NLRC, GR 104690).
What is the formula in computing the
separation pay of a seasonal worker?
Total number of days actually worked x Daily Rate
x 15 days
Total no. of working days in 1 year
What is the remedy if the employer fails or is
unable to comply with a final and executory
judgment (or order pending appeal) for
reinstatement?
The remedy is to compel the employer by writ of
execution to effect the reinstatement and pay the
amounts decreed. The employer may be cited in
contempt for failure or refusal to reinstate the
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employee despite several writs of execution
(Chrisitan Literature Crusade v. NLRC, 171 SCRA
712).
What is the period in which backwages will be
computed?
The obligation for accrued backwages continues to
accumulate until the reinstatement is actually
implemented (Triad Security & Allied Services v.
Ortega, GR 160871).
Within how many days must the employees
come to their employer to have themselves
reinstated?
The employees should be given a reasonable time
to wind up their current preoccupation or at least
explain why they could not return to work at once
(Buenviaje v. CA, GR 147805).
What happens when the employer fails to
reinstate the employee after the decision in the
NLRC but the SC decides the case in favor of
the employer?
The employee will be entitled to backwages from
the time of the decision of the NLRC until finality
of the decisions of the SC (Roquero v. PAL, GR
152329).
Is the employee required to reimburse salaries
received during his reinstatement pending
appeal when the decision to reinstate is
eventually reversed by final judgment?
No. Even if reversed, it is obligatory upon the
employer to reinstate and pay the wages of the
dismissed employee during the period of appeal
until reversal by the higher court (Roquero v. PAL,
GR 152329).
Is the immediately executory character of the
reinstatement affected by the employer’s denial
of employer-employee relationship?
No. Although the existence of employer-employee
relationship is challenged, it is indisputable that
prior to the filing of the cases, the complainants
were working for the employer (PAL v. NLRC, GR
113827).
What is the difference between the
reinstatement order of the Labor Arbiter and
that of the NLRC?
The reinstatement order of the Labor Arbiter is
immediately executory, even pending appeal. The
reinstatement order of the NLRC need as writ of
execution 5 days after the order has become final
and executory (Azucena, p. 908).
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When are moral damages recoverable in illegal
dismissal cases?
They are recoverable only where the dismissal or
suspension of the employee was attended by bad
faith or fraud, or constituted an act oppressive to
labor, or was done in a manner contrary to morals,
good customs or public policy (PAL v. NLRC, GR
132805).
How much is the indemnity for a househelper
who is unjustly dismissed?
The househelper is entitled to compensation
already earned plus 15 days by way indemnity
(Art. 149, LC).
As a general rule, the officers of the corporation
are not liable for the illegal dismissal of the
employee when the officers act within the scope
of their authority. What are the instances when
the officers are liable?
a. When there is piercing of the corporate
veil
b. Directors and trustees who willfully and
knowingly vote for or assent to patently
unlawful acts or who are in gross
negligence or bad faith are solidarily liable
for damages (Azucena, pp. 913-914).
Art 264 states that an employer who violates the
Minimum Wage Act can be subject to fine
and/or imprisonment. Who is this provision
implemented if the employer is a corporation?
Art. 212(c) of the Labor Code includes persons
acting in the interest of an employer, directly or
indirectly, in the definition of an employer. Hence,
the responsible officer can be held personally
liable. If there is no definite proof as to who is the
responsible officer, the president is presumed to be
the responsible officer (AC Ransom Labor Union v.
NLRC, GR 69494).
When are corporate directors and officers
solidarily liable with the corporation for
termination of employment?
They are solidarily liable when the termination was
done with malice and bad faith (Uihico v. NLRC,
GR 121434).
In a contracting agreement, the indirect
employer is solidarily liable for unpaid wages.
What is the extent of this liability?
The solidary liability is only to the extent of the
work performed under the contract. It will not
apply when the employees were no longer worker
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for the indirect employer when they were illegally
dismissed (Rosewood Processing v. NLRC, GR
116476-84).
When may an employee file a claim against an
employer even after executing a quitclaim?
When the voluntariness of the execution of the
quitclaim or release is put in issue, or when it is
proved that there is an unwritten agreement
entitling the employee to other remuneration or
benefits, then such a money claim of the employee
may still given due course (Talla v. NLRC, GR
79913).
Quitclaims are invalid if they are contrary to public
policy (Carmelcraft Corp. v. NLRC, GR 90634-35).
May an employee contest the validity of a
quitclaim on the ground that it was accepted
because of dire necessity?
No. It is not an acceptable ground for annulling
releases when it is not shown that the employees
had been forced to execute them (Veloso v. DOLE,
GR 87297).
As a general rule, an employee may terminate
without just cause the employment relationship
by serving a written notice on the employer at
least 1 month in advance. When is such notice
not needed?
a. Serious insult by the employer or his
representative on the honor and person of
the employee;
b. Inhuman and unbearable treatment
accorded the employee by the employer or
his representative
c. Commission of a crime or offense by the
employer or his representative against the
person of the employee or any of the
immediate members of his family; and
d. Other causes analogous to any of the
foregoing (Art. 285, LC).
What is the effect the employee fails to furnish
the employer of a written notice of resignation?
The employer may hold the employee liable for
damages (Art. 285, LC).
Is the employer required to have the employee
continue the employment relationship for thirty
days after serving the notice of resignation?
No. After notice, it becomes discretionary on the
part of management as an employee who intends to
resign be allowed a shorter period before his
resignation becomes effective (Phimco Industries
v. NLRC, GR 118041).
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Generally, resignation may be withdrawn.
When may it not be withdrawn?
Once the employer accepts the resignation, its
withdrawal needs the employer’s consent
(Intertrod Maritime, Inc. v. NLRC, GR 81087).
Generally, an employee who voluntarily resigns
from employment is not entitled to separation
pay. What are the exceptions?
a. There is a stipulation for payment of such
in the CBA,
b. Payment is sanctioned by established
employer practice or policy (Travelaire &
Tours Corp. v. NLRC, GR 131523).
What is constructive discharge?
It is a quitting because continued employment is
rendered impossible, unreasonable or unlikely, as,
an offer involving a demotion in rank and a
diminution in pay (Philippine Japan Active Carbon
Corp. v. NLRC, GR 83239).
What is the effect when the employee was
suspended beyond the 30-days preventive
suspension?
It operates as constructive dismissal (Hyatt Taxi
Services v. Catinoy, GR 143204).
When is employment not deemed terminated
despite the suspension of work?
a. Bona fide suspension of operation of a
business or undertaking for a period not
exceeding 6 months
b. The fulfillment by the employee of a
military or civic duty
In both cases, the employee should resume work
not later than 1 month from resumption of
operations of his employer or from his relief from
military or civic duty (Art. 286, LC).
The 6-month floating status requires the dire
exigency of the employer’s bona fide suspension
of operation, business or undertaking. What is
the effect of the absence of such dire exigency?
It may be a form of illegal dismissal (Sentinel
Security Agency, Inc. v. NLRC, GR 122468).
The stipulations in the CBA or applicable
employment contract will apply in retirement.
Without such agreement, what is the retirement
benefit required by law?
An employee, upon reaching the age of 60 to 65
(mandatory retirement age), and who has served 5
 The Fraternal Order of UTOPIA
ATENEO DE MANILA UNIVERSITY 62
SCHOOL OF LAW
LABOR LAW II REVIEWER ATTY. LIBERADOR
VILLEGAS

years in the said establishment, shall be entitled to
retirement pay of at least ½ month salary for every
year of service. A fraction of at least 6 months,
considered as one whole year (Art. 287, LC).
How should the ½ month salary in retirement be
computed?
It is 15 days + ½ of 13th month pay + cash
equivalent of 5 days service incentive leaves (Art.
287, LC).
What is the age of retirement for underground
mining employees?
Upon reaching the age of 50, but not beyond 60
(compulsory retirement age), and worked at least 5
years as underground mine worker, may retire and
receive retirement benefits (Art. 287, LC).
Code (Callanta v. Carnation Philippines, GR
70615).
When does the period to file a claim against the
employer begin?
It starts when the employer refuses, expressly or
impliedly, to comply with his duty as employer to
the employee (Baliwag Transit v. Ople, GR 57642).
Is the prescriptive period for illegal dismissal
suspended by filing a criminal case for estafa?
No. An action for illegal dismissal is an
administrative case which is entirely separate and
distinct from a criminal action for estafa. Each may
proceed independently from the other (Pepsi Cola
Bottling Company v. Guazon, GR 81162).

Who are exempted from the coverage of

retirement benefits? What are the prescriptive periods for cases
Retail, service, and agricultural establishments or under the Labor Code?
operations employing not more than 10 employees
are exempted (Art. 287, LC). Offenses penalized by the 3 years
Labor Code
What is the requirement for retirement terms Unfair Labor Practices 1 year from accrual
other than those provided by law? Money claims from 3 years from the time
There should be assent by the employee affected employer-employee the cause of action
(Jaculbe v. Silliman University, GR 156934). relationship accrued

May an employee claim retirement benefits and
separation pay simultaneously?
Yes. Separation pay from forced termination and
benefits given as contractual right due to many
years of faithful service do not necessarily exclude
each other (UE v. UE Faculty Association, GR
74007).
What is the effect to the prescriptive period if
the employee relied on the promise of the
employer for payment?
It may justify the filing of the complaint beyond
three years (Cadalin v. POEA Administrator, GR
104776).

May an employee continue to work despite

reaching the age of compulsory retirement?
Yes. The matter of extension of service of such
employee or official is addressed to the sound
discretion of the employer (UST Faculty Union v.
NLRC, GR 89885).

Who is penalized when the offence is committed

by a juridical entity?
The penalty is imposed upon the guilty officer or
officers of such corporation, trust, firm,
partnership, association or entity (Art. 289, LC).

What is the prescriptive period for an action for

reinstatement?
It prescribes in 4 years, for injury to the employee’s
rights as provided under Article 114 6 of the Civil

E.
CHUA