BARGAINING UNIT

● Bargaining Unit (BU)

○ Group sharing mutual interests, [**all or less than all employees in the unit or any
specific occupational/geographical grouping]
○ ** Not necessary as long as they pass tests in determination of appropriateness
● Tests to determine BU
○ Will
○ History
○ Status
○ Mutuality of interest
● Terms:
○ EBR
■ Legitimate labor union duly recognized and certified as the sole and
exclusive bargaining representative/agent
○ Organized - there is a bargaining agent and/or existing CBA
○ Unorganized - none
○ Labor Organization
■ Any union or association which exists in whole or in part for the purposes
of any collective bargaining or of dealing with employers concerning terms
and conditions of employement
○ Union
■ labor organization in private sector organized for collective bargaining and
other legitimate purpose
○ Worker’s association
■ EER not required; not allowed to collectively bargain; they can only do
acts for mutual aid and protection of workers)
○ Legitimate Labor Organization
■ any labor organization in private sector registered/reported with DOLE
● Modes of Determining EBR
○ SEBA Certification
■ Conditions:
1. Requesting union (i.e. legitimate labor organization)** is only union
in the BU
2. Majority of the BU are members of the union
■ Effect
● Certified union or local shall enjoy the rights and privileges of an
EBR
● Bar the filing of a petition for certification by any labor organization
for a period of 1 year from the date of its issuance (Upon
expiration, petition for certification can be filed by any LLO unless
CBA was registered with DOLE)
○ Certification Election
■ Requirements:
1. Registered union
 2. 25% support in BU
3. No bar rules
■ Grounds for Denial:
a. Non-Appearance
b. Illegitimacy - unregistered union
c. Illegitimacy - no charter
d. No EER
e. 3 bars
f. Lack of support (25% support)
○ Run off
■ Requisites:
1. Valid election (i.e. majority of BU voted)
2. 3 or more choices (including “No Union”)
3. Not one of the choices got majority valid votes
4. Total number of votes for all unions is at least 50% of votes cast
5. No unresolved challenge of voter or election protest
○ Run on
■ Instances:
a. To break a tie including “no union” and one of the union (in a
certification/consent/re-run election)
b. Failure of Election (less than majority voted and there are no
material challenged votes; it shall not bar filing of a motion for
holding of another certification/consent election within 6 months
from declaration of failure)
○ Consent Election
■ Effect
● Results shall constitute a bar to the holding of a certification
election for one year from the holding of such consent election
(BUT: if there is an appeal on the results of the consent election,
running of period is suspended until decision on appeal is final)
● The bar applies even if there is no petition for certification election
● Bar RULES
○ Contract Bar Rule
● Representation status of an EBR with a registered CBA shall be for 5
years. No petition questioning the majority status can be filed except
during the freedom period on representation aspect of CBA
○ Deadlock Bar Rule
● Grounds:
a. The submission of the deadlock to a 3rd party conciliator or
arbitrator
b. The deadlock is the subject of a valid notice of strike or lockout
○ Negotiation Bar Rule
 ● when a union has already commenced and sustained collective
bargaining negotiations in good faith within the 1- year period, but there is
no CBA yet.
○ 1-Year Bar/Certification Year Bar Rule
● Within 1 year from the date of a valid certification, consent, or run-off
election even if the “No union” choice won. Therefore, for one year, no
PCE will be entertained
COLLECTIVE BARGAINING
● Not below min of law and set grievance machinery
● Single-enterprise
○ 1 SEBA, 1 Employer
● Multi-employer
○ different employers and recognized/certified labor unions
○ Agree in writing that only incumbent EBR can participate; only ER with incumbent
EBR can join
● Surface bargaining
○ no legal intent to reach agreement
● Blue sky bargaining
○ unrealistic
● Duty to bargain collectively
○ mutual obligation to meet and convene in good faith
● Jurisdictional requirements
○ (a) majority status - SEBA certification or if you win elections; (b) DOLE
certification that you are EBR; (c) demand to bargain
● Documentary requirements
○ (a) CBA; (b) statement of posting of CBA; (c) statement of ratification of CBA
● Holdover Principle
○ keep status quo during freedom period and/or until new CBA is reached
● Terms (Period)
○ Representation: 5 years (representation)
○ Renegotiation of economic provisions (3 years)
● Retroactivity rules:
○ Within 6 months from expiration → 1st day after expiration of 3 years
○ After 6 months → agreement of parties
○ St. Luke’s v. Torres (arbitral awards)
■ If beyond 6 months yung arbitral award, the one who can set the
effectivity date for the arbitral award in that case is the SOLE
● Cases
○ Managerial employee cannot join, assist, or form union (XPN: employer extends
CBA benefits as a matter of company practice)
○ Government employees cannot collectively bargain! They must address their
petition through Congress
○ Law forms part of CBA even if law is not indicated in the CBA
○ Bona fide suspension of operation not exceeding 6 months = no termination of
employment. EER suspended as well. [sir: you can close pero pwede magstrike]
○ ER’s recognition of majority status of incumbent EBR continues when no PCE
was filed. [Sir: So 60 days before 5th year, that’s the freedom period and that’s
the time you can file representation. If you organize = disloyal. But if you certified
CE during the freedom period = ok lang yan]
ADDITIONAL CASES
● Federation cannot demand dismissal because Local Union has right to disaffiliate from
the Federation
○ Allowed Federation pero applied upon its request (??)
● Forming a union outside freedom period is an act of disloyalty
● Principle of non-diminution of benefits
○ BUT: may be diminished by agreement
● SOLE is not prohibited from giving an arbitral award higher than MOA agreed by the
parties
● If a new EBR wins and in the interim of the election, an agreement was made between
the ER and the old EBR, the new EBR can either continue using the old CBA OR
negotiate a new CBA.
● For contract bar to apply, the CBA must be registered
● CBA applies to all covered employees, member or not as long as covered under same
BU (members, hired after CBA, and **managerial if company practice)
● Subsitutionality Principle
○ You have EBR but another union won in the Certification Election. It does not
mean that the CBA is new. The new EBR can negotiate to shorten its term.
○ New EBR not bound to assume past undertakings of old EBR (it is not party to
old CBA)
● CBA term can be extended by the representation status of 5 years cannot!
● Excluded from CBA: executive secretary, confidential employee
● Merger of Company - Union wants to include absorbed employees in CBA. This is
allowed!
● Until no PCE filed, ER continue to recognize incumbent EBR
UNFAIR LABOR PRACTICE
● Concept
○ Violate right to self-organization
● Civil v. Criminal Aspect
○ Civil - recovery in admin proceedings bar recovery under CC; prescriptive period
of 1 year
○ Criminal - only after finality of labor case;
● By Employer (259)
○ Interfere/restrain/coerce exercise of right to self-organization
■ Test of Interference; Totality of Conduct Doctrine
■ Individual bargaining by giving benefits is interference
■ Success of interference is not needed. Mere attempt is enough
■ TCD: even if seemingly innocent, may still be liable based on
circumstances (history of anti-labor bias, etc)
■ Sponsor field trip to non-union members and escorting them to polling
center while encouraging them not to vote for the union; union members
as grass cutters
■ Refusal to make counter-proposal by management is indication of bad
faith
○ Yellow-dog contract
■ Not join/withdraw as condition for employment
○ Contract out
■ Not illegal per se; only when it will interfere with exercise of
self-organization
■ illegal - labor only contracting1 (no control, no substantial capital,
performing tasks directly related to main business operation)
■ Runaway Shop - move to another location/temporarily close for anti-union
purpose
○ Company union
■ initiate/assist/interfere with formation or administration of union and giving
of financial support
○ 3 Distinct Concepts
■ Discrimination - not illegal as long as there is substantial distinction
■ Union Security Clause - just cause for termination if (a) USC applicable;
(b) union requesting; and (c) sufficient evidence; (d) due process - notify
employee and opportunity to be heard
■ Agency Fee - no requirement for non-members of the SEBA to become
its members but they shall pay agency fee for continued employment
(basis: quasi contract unjust enrichment)

1
1. When the contractor or subcontractor does not exercise the right to control over the performance of the work
of the employees. 2. When: (i) the contractor or subcontractor does not have substantial capital, or does not have
investments in the form of tools, equipment, machineries, supervision, work premises, among others; and (ii) the
contractor’s or subcontractor’s employees recruited and placed are performing activities which are directly related
to the main business operation of the principal
 ○ Filing of charges for giving of testimony
■ Only ULP that is unrelated to self-organization
○ Violate duty to bargain collectively (CBA-related)
■ Of economic provisions (hire members of finance department based on
seniority – econ because there is money in promotion)
■ SEBA bargains for all the employees and not only members of the SEBA.
Otherwise, there would be discrimination
■ When an ER proceeds to negotiate with a splinter union instead of EBR
■ Pending resolution of intra-corp dispute, Union officers remain under
holdover capacity
○ Paid negotiation (CBA-related)
■ As part of settlement of any issue in collective bargaining or any other
dispute
○ Gross violation of CBA (CBA-related)
■ ULP - gross + economic (LA)
■ Grievance - non-gross + economic; non-economic (grievance/VA)

● By Union
○ Restrain/coerce in exercise of self-organization
○ Discrimination
■ cause or attempt to cause an ER to discriminate in general (member or
not)
■ Discriminate employee whose membership denied
■ Discriminate employee whose membership terminated on ground other
than conditions under which membership is made available to others
■ XPN: require membership as condition for employment
○ Violate duty/refusal to bargain collectively
■ Duly certified SEBA + violate/refuse
○ Featherbedding
■ Union require ER to hire more employees than is necessary
■ In the nature of an exaction for services that are not performed/will not be
performed
○ Demand or accept fees
■ Not only for settlement purposes. ANY FEES; mere attempt enough
○ Gross violation of CBA

GRIEVANCE MACHINERY AND VA

● Mandatory submission to GM
○ If not settled w/in 7 days - automatic referral to VA
● Grievance
○ Question interpretation/application of CBA/company policies
○ Claim that other party is NOT grossly violating CBA/company policies
● If no GM, CBA cannot register
● To by-pass GM is to commit ULP (violate duty to bargain??)
● Can by-ass GM and VA immediately
● VA Jurisdiction
○ Question interpretation/application of CBA/company policies
○ Claim that other party is NOT grossly violating CBA/company policies
○ All labor disputes included ULP and deadlocks
○ interpretation and implementation of the productivity incentive programs
○ Head and decide wage distortion issues arising from the application of any wage
orders in organized establishments
● VA is only mandatory in character if there is a specific agreement between the parties to
that effect.
○ Termination disputes fall under the jurisdiction of the LA (xpn: the union and the
company agree that termination disputes should be submitted to voluntary
arbitration)
● Actual termination - cognizable by LA
● Power of VA
○ Hearing
○ Receive evidence
○ Efforts settlement
○ Determine the attendance of any third party or the exclusion of any witness from
the proceedings
○ Render an award or decision
■ Within 20 calendar days (unless: agreement)
■ Final and executory - after 10 days from the receipt of the copy of the
award or decision by the parties (expiration or receipt of MR).
■ Denial of MR - can appeal to CA under Rule 43 petition for review within
15 days from notice of denial
○ If the issue contained in the submission agreement was whether or not the
employee was regular, VA has also authority to determine the back wages due to
the regular employees.
REMEDIES
● Alternative Dispute Resolution
○ used to resolve a labor dispute through conciliation, mediation, voluntary
arbitration, or plant-level bipartite mechanisms, such as labor-management
cooperation (LMC) and grievance machinery.
● Conciliation
○ Conciliator-Mediator assist
● Mediation
○ Conciliator-Mediator starts advising the parties or offering solutions
● Who can avail? Any party to dispute at the National Conciliation and Mediation Board
(NCMB) and its Regional Branches
● Preventive Mediation
○ Not a provision in the CBA; Potential labor dispute
○ Who can file
■ president/rep of EBR (deadlock)
■ No EBR, president/rep of LLO (ULP)
■ ER/rep (deadlock and ULP)
○ How
■ Personal service or registered mail with the REGIONAL TRIAL COURT
with jurisdiction over the workplace
○ Grounds
■ Deadlock; ULP; Flagrant and/or malicious refusal to comply with the
economic provisions of CBA
○ CONVERT: Notice of Strike/Lockout → Preventative Mediation
■ Done before cooling-off period expires
● Notice of STRIKE
○ Requirements: notice, strike vote, notice of results of voting 7 days before strike
○ Cooling of period
■ Deadlock - 30 days before strike
■ ULP - 15 days
■ Union Busting - no need but there is 7-day strike ban
○ If no EBR, LLO can file
○ Secret ballot
■ Supervision of DOLE in secret ballot request or motu proprio
● Notice of LOCKOUT
○ Deadlock - 30 days before cooling off
○ ULP - majority of board approves by secret ballot
○ DOLE may supervise
● Petition for Assumption of Jurisdiction by the SOLE
○ In his opinion will affect indispensable industry to national interest
■ Assume jurisdiction over the dispute and decide It OR
■ Certify the same to the Commission for compulsory arbitration
● Strikes/Lockouts in Hospitals, Clinics and Similar Medical Institutions
○ skeletal workforce
 ○ Within 24 hours from knowledge of the strike/lockout, the SOLE may: Assume
jurisdiction over the dispute OR
○ Certify the dispute to the Commission for compulsory arbitration
● Injunction
○ may be granted by the Commission
■ Prohibited/Unlawful acts have been threatened to be committed/will
continue unless restrained
■ Substantial and irreparable damage to petitioner’s property
■ No other remedy
■ Public officers unable to protect property
■ Petitioner suffer greater injury if not granted then respondent if item is
granted
● This is different when you defy a resumption order, RTW order, or certification order. No
distinction between officer and union member. if you defy, disciplined ka.
● If the claim for damages arose from an illegal strike, and not from just mere acts of
quasi-delict, then the NLRC will have jurisdiction over the case.
GOVERNMENT EMPLOYEES
● Has right to self organize and
○ Except the following:
■ High-level employees
■ Whose functions are policy-making or managerial or
■ Whose duties are of a highly confidential nature
■ Members of the Armed Forces of the Philippines,
■ Police officers
■ Firemen
■ Jail guards.
● No right to collectively bargain
○ BUT: They have a right to collectively bargain for provisions na not fixed by law
● Right to strike
○ Peaceful Concerted Activities and Strikes governed by Civil Service laws and
rules
○ Not allowed to negotiate or to strike as regards the terms of their employment
which were fixed by law.
● SSS employees are not entitled to the signing bonus. The process of collective
negotiations in the public sector does not encompass terms and conditions of
employment requiring the appropriation of public funds.
● Professors, associate professors and assistant professors are not "high-level
employees" "whose functions are normally considered policy determining, managerial or
. . . highly confidential in nature
● employees academic and non-academic employees have no mutuality of interests
● BLR has jurisdiction over intra-union dispute (election of officers) of an employee's
organization in the public sector
CBA DATA REQUIREMENTS (where to get)
● Worker Profile
○ Company
● Company Compensation Scheme
○ Company
● Company Financial Condition
○ Company; SEC
● Other Company Data (ie. ownership, name of board directors and top management, long
term plans)
○ Company
○ Company Annual Report
○ Management Reports
○ SEC
● Economic Indicators
○ National Economic Development Authority (NEDA)
○ National Statistics Office (NSO)
○ Department of Labor and Development (DOLE)
○ Bangko Sentral ng Pilipinas (BSP)
● Industry Profile
○ Company Finance Department
○ SEC
○ DTI
○ Bureau of Labor and Employment Statistics – Department of Labor and
Employment (BLES-DOLE)