7/28/23
by both parties and DOLE.
Does Res judicata apply to certificate election?
No. Nature of certification election: Not an adversarial
proceeding. There is no complainant, defendant, or accused.
The title of the case in a non-adversarial proceeding is “in re:”
To be establish a fact, status, or title.
Ex: To establish the choice or the will of the ABU composed of
the regular daily paid production workers of XYZ corporation.
There is this fact sought to be established: WON the
bargaining unit chooses representation and if so, who is the
representative?
In succeeding CE, it is already assumed that they want
representation.
When can you file a petition for certification election in a
succeeding election?
It can only occur if a petition is filed within the narrow window
of 60-day freedom period before the expiration of the 5 th
year of the CBA. Before that, you cannot file because it is
barred by the Contract-ban rule. That is the substitute for res
judicata.
Instead of Res judicata, you have:
3 bars to a petition to Certificate election
1. Certification year rule – No petition shall be entertained
within 1 year from the publication of the last result of the
CE. [Art. 268-269 LC].
It is from the time of the results are published and made known
because it is that time there is SEBA. It is only then the SEBA
can begin bargaining from the CBA.
If the election results are challenged, it will take months before
it can be resolved.
Reason: to give the winner ample opportunity to conclude the
CBA. 1 year is enough time to conclude successfully with the
management.
If no union won in the results, the certification year rule
still applies
It is to grant the employer respect because the CE and the
events leading to a CE is contentious and destabilizing of the
workforce and divisive. There will be divisive forces in one BU.
2. Deadlock-bar rule – Applies when there is EBA that won
the election and he starts and continues the negotiations
for the CBA but is unsuccessful and there is a deadlock.
If there is no more movement in the negotiation, the parties will
declare a deadlock.
The union may:
a. Submit to voluntary arbitration; or
b. Strike.
3. Contract-bar rule – When the negotiation results in a
CBA and it is now formalized. The certified CBA bars a
CE.
Can an unregistered CBA bar a petition for CE?
Yes. If it is a CBA that (1) grants substantial benefits; (2) has
been in effect as the law of the parties for a substantial period
of time without any challenges; and (3) it has been relied upon
Substantial benefits – higher than labor standards benefits,
not merely statutory benefits.
Incremental benefit – the same benefits granted by the labor
standards law but higher.
Ex: SIL for 2 weeks as compared to 5 days SIL granted under
the law.
Supplemental benefit – benefits that are new and not granted
under the Labor Code.
Ex: Rice allowance of P1000 per month granted under the
CBA.
Note: Incremental and supplemental benefits are the proof
that the CBA grants substantial benefits. If only labor
standards benefits are granted, the CBA would be an illegal
sweetheart contract because it renders superfluous
negotiations. What is granted is only what the labor code
grants.
Company union
The formation and continued organization are with the help and
aid of the employer. It is formed with the assistance and
sustained by the employer. It is not a legitimate labor
organization. [Implementing rules]
In a certification election, there is appreciation of ballot.
- The winner of the election is the one who gets majority of
the valid votes cast.
- The ballots should be in a language or dialect
understandable to the employees.
Example:
Ballot on First time election:
 Federation of Free Workers, Petitioner
 Southern Philippines Federation of Labor (SPFL),
intervenor 1 [motion for intervention]
 ULGWP Federation, intervenor 2
Ballot on Succeeding petition for CE:
The petitioner is no longer number 1.
 FFW, Forced intervenor [incumbent]
 SPFL, Petitioner [challenged the Forced intervenor]
 ULGWP, Intervenor 2
Forced intervenor – the incumbent does not need to file a CE.
8/4/2023
What are the modes of identifying the SEBA?
(1) Request for SEBA; and
(2) Certification elections.
Certification election
Certified – At least 3 parties. (1) Management; (2) Union; and
(3) DOLE as the third party who certifies the election.
Consent election is a certification election, but the parties
only agree from the very start that the wording of the
bargaining unit is correct and acceptable.
Inclusion and Exclusion proceedings
- Who can join the collective bargaining unit?
- When you disagree, you can make the employee produce
the list of employees 3 months before the filing of the
petition for CE; (found in the IRR); To identify the rank-and
file, daily paid workers.
How do you treat a protest during the election
proceedings? There are 3 requirements:
(1) The objection must be recorded in the minutes of the
election;
(2) There is an interim order from the part of the election
officer to accommodate the protest/objection; and
(3) It must be formalized in writing not later than 5 days from
the date of the end of the election proceedings.
This is where the terminologies of the omnibus election
code differ from the Labor Code. The CE does not include
the proclamation of the winner, it only includes the closing of
the precincts of the tabulation.
The result of the CE is certified by the med-arbiter. The
election officers present all the results (tabulation).
If the other unions are unsatisfied, they can question the
results before the med-arbiter. The med-arbiter will decide.
If still dissatisfied, BLR. Then CA to SC.
Requisites for Run-off election
(1) There has been a valid certification election;
Valid CE – The participation of the majority of eligible voters.
The ballots must not be spoiled.
If invalid CE, there can be no run-off election. It is an extension
of the process of CE.
(2) There at least 3 choices if it is a new election in an
unorganized establishment.
(3) Sum total votes in the election is at least 50% of the votes
cast.
Is every 2nd election a run-off election?
Not necessarily. If the first election was invalid, then there is no
election at all. The 2nd election is the CE.
Re-run election
If the result is a tie, you can have a re-run election.
But the IRR provides, you can do (1) re-run election; or (2) toss
coin.
If there is no valid election, re-run election can be held.
Referendum
When a substantial number of employees in a BU in an
organized establishment governed by the CBA are now
dissatisfied with the EBU (Labor federation).
They want to disaffiliate in the middle of the CBA. The local are
free to disaffiliate at any time regardless of the constitution and
by-laws of the federation.
Ask the BLR to conduct secret ballot for disaffiliate. In the
same meeting, they can ask if they want to affiliate with
another federation.
When there is already an EBU, the next step is collective
bargaining.
Who has the duty to bargain collectively? Who has the
right to bargain collectively?
Collective bargaining is both a duty and a right.
The labor code only lists the duty to bargain (5 provisions).
1. Art. 124 - Standards/Criteria for Minimum Wage Fixing.
2. Art. 262 - Duty to bargain collectively in the absence of
collective bargaining agreement.
3. Art. 263 - Meaning of duty to bargain collectively.
4. Art. 261. - Procedure in Collective Bargaining
5. Art. 264. - Duty to bargain collectively when there exists a
collective bargaining agreement.
Summary of Art. 263: Contents of duty to bargain in negotiation
phase
3 positive & 2 negative requirements:
Positive
1. Meet promptly and expeditiously. (behavioral)
2. Meet in good faith; Good faith cannot be proven because it
its presupposed. It is bad faith that must be proven. What
are the indices of bad faith?
There are at least 5 bad faith bargaining examples.
To arrive to an agreement, you must be in good faith.
Bad faith has a thin line to separate it with hard nose
bargaining. Difference between bad faith bargaining vs.
hard nose bargaining:
Hard nose bargaining is allowed because of the 2 negative
elements – the duty to bargain does not compel any party to
agree to a proposal or to make any concession.
Mgt is in bad faith: If they keep meeting but there is still no
CBA, then good faith is questioned.
Mgt response: but such duty does not compel any party to
agree to a proposal or to make any concession. (Art. 263)
Ex: Doctrine of triennial cohabitation.
3. Bargain for the purpose of arriving at a CBA.
Negative
4. But this duty does not oblige any party to agree to any
proposal or to make any concession.
First phase of CB process: Negotiation
Duty to bargain refers to management.
Right to bargain refers to the union.
Why? Because of the peculiar set-up of ER-EE. The ER is
always the proactive party. The EE is the reactive party. If
there is no enterprise, there is no employee.
Bargaining organizations never occur in a vacuum. It is always
with the existence of ER-EE relationship. In Art. 262, there is
already ER-EE relationship but involves individual contract of
employments.
Even if there is a CBA, mgt does not wait to have a violation of
the CBA. Mgt just acts on its prerogatives.
There is no such thing as breach of CBA. There is only a
grievance because the employers always act, and the
employees grieve on the actions of the employer. Managerial
prerogatives are just limited by EE’s labor rights. Managerial
prerogative exists with ownership of the enterprise.
It is the employer that holds the key.
When does the duty to bargain begin?
Read: Kiok Loy Swedish Ice cream v. NLRC (141 SCRA 179,
1986)
3 requisites of duty to bargain:
(1) Majority representation status of the union;
(2) Proof of majority representation status;
(3) The union submits to mgt their written bargaining
proposals.
If complied, mgt has to produce its counter proposals within 10
days. Then after 10 days, they will negotiate on the proposals
and counterproposals.
Rights of legitimate labor organizations
Art. 251[242] (c) To be furnished by the employer, upon written
request, with its annual audited financial statements, including
the balance sheet and the profit and loss statement, within
thirty (30) calendar days from the date of receipt of the request,
after the union has been duly recognized by the employer or
certified as the sole and exclusive bargaining representative of
the employees in the bargaining unit, or within sixty (60)
calendar days before the expiration of the existing collective
bargaining agreement, or during the collective bargaining
negotiation;
 The moment the union is already certified, he has the right
to request in writing, the latest financial statements.
The SC upheld the Kiokloy doctrine:
General Milling v. Castro.
Divine Word University of Tacloban vs Secretary (1992)
End of first phase: when the contract has been signed and
the post-signing formalities have been completed
When the union president signs an affidavit “attached thereto is
a copy of the CBA; Copies have been posted in at least 2
conspicuous places and has been ratified by the majority of the
BU; and it pays registration fee with the BLR giving 2 copies of
the CBA”
Must be unanimously signed and ratified
Purpose of giving copy to BLR
If the union’s copy and the mgt’s copy are not the same and
there is a disagreement, the copy of the BLR prevails. It is the
controlling copy.
2nd phase: Administration phase
Administer the CBA; make the CBA work. There is still a duty
to bargain, as compared to ordinary contractual law. The
employer and the employee administer or enforce the CBA.
More actively, it is the employee [union side] who continues to
assert the contract. Bargaining or negotiations does not end
with a written CBA.
Employers have the managerial prerogative.
Art. 264: Contents of duty to bargain in administering stage
[ 2nd phase]
Art. 264. Duty to bargain collectively when there exists a
collective bargaining agreement. When there is a collective
bargaining agreement, the duty to bargain collectively shall
also mean that neither party shall terminate nor modify such
agreement during its lifetime. However, either party can serve
a written notice to terminate. It shall be the duty of both parties
to keep the status quo and to continue in full force and effect
the terms and conditions of the existing agreement during the
60-day period and/or until a new agreement is reached by the
parties.
2 positives
1. You must maintain the status quo. [do not terminate or
modify]
2. Continue, in full force and effect the terms and conditions
of the existing agreement during the 60-day freedom
period or until a new agreement is agreed upon.
3 negatives
Elements:
1. Neither party shall terminate the CBA.
2. Nor modify such agreement during its lifetime. Not even
during the 60-day freedom period.
What you amend will be effective for the subsequent CBA that
will succeed the existing CBA that you are administering.
You cannot unilaterally modify the CBA.
XPN:
(1) Novation – a product of another agreement.
You can change CBA provided it is for the benefit of the
EE. If the change makes them receive less, it is the prohibited
change under Art. 264. It is the employee who will justify the
change.
(2) Management can negotiate during the 60-day period. The
union presents a written proposal for renewal and
management can choose to accept or decline it.
“either party can serve a written notice to terminate or modify
the agreement at least sixty (60) days prior to its expiration
date.” – no duty to bargain because if mgt does so, it does so
at its own risk. No duty of mgt to negotiate an early renewal of
the CBA.
Automatic certification election
In organized establishment, 25% signature support is present.
In unorganized establishment
- No need to present the signature.
If the new union is elected, the old CBA is nullified.
Republic Savings Bank vs. CIR:
The SC said, the letter of the union president might have been
exaggerated, etc., it might not have been in good faith, but it
was actually a grievance. It was a complaint that had
everything to do with the terms and conditions of work.

So therefore, the least you could have done was to follow the
grievance process. You should have treated it as a grievance.
You should have met with them promptly and expeditiously and
discover ways by which you will deal with the subject of the
complaint. But you did not. So, you committed unfair labor
practice.
Even when there is already a CBA, the employer has the
continuous duty to negotiate with the union as to complaints
arising from the CBA involving work-related issues.
Negotiating with the union does not end with an agreement. It
includes adjusting the terms and conditions of the bargaining
agreement.
Mandatory subjects of bargaining
The parties to the CBA are free to negotiate for the ABU. If not
mandatory, the mgt is not compelled to sit down with the union.
Union of Filipro Employees v. Nestle
Retirement benefits are mandatory subjects of bargaining.
There has to be negotiation on the benefits.
The fact that the retirement plan is non-contributory, i.e., that
the employees contribute nothing to the operation of the plan,
does not make it a non-issue in the CBA negotiations. As a
matter of fact, almost all of the benefits that the petitioner has
granted to its employees under the CBA – salary increases,
rice allowances, midyear bonuses, 13th and 14th month pay,
seniority pay, medical and hospitalization plans, health and
dental services, vacation, sick & other leaves with pay – are
non-contributory benefits.
Since the retirement plan has been an integral part of the CBA
since 1972, the Union’s demand to increase the benefits due
the employees under said plan, is a valid CBA issue.
The mgt’s position not to negotiate on the retirement benefits is
the same right as the union’sposition to bargain on such
benefits.
Why is that possible?
Because of the 2 negatives in Art. 263. You cannot be
compelled be to agree to negotiate. Insistence in not
negotiating as long as you do it during negotiation, that is not
bad faith.
Bad faith bargaining does not mean that you cannot make a
stand in bargaining. Provided that you do not leave the table
when negotiating.
In kiok loy why was it in bad faith?
Kiok loy never sat with the union and never offered counter-
proposals. The SC held that Kiok loy was guilty for ULP for
refusing to bargain with the union.
What if the subject is not a mandatory subject of
bargaining? No duty to bargain
Meralco vs. NLRC:
One of the bargaining proposals of the labor union was for
management to provide seed capital to the union, to be
administered by the union, in its housing loan made available
to their members and all those covered by the bargaining unit.
The SC said there is no duty to bargain because that is not a
mandatory subject of bargaining. The SC held that they are
asking management to, in effect, capitalize the loaning
program of the union. That is not terms and conditions of work.
Suppose there is an agreement written in the CBA that
mgt agrees to give the union the right of first refusal to
purchase the fully depreciated assets. Mgt offers it first to
the union before it will pace in public auction.
What happens if mgt just sells the assets without offering
it to the union first?
In the US, that is held to be a non-mandatory subject of
bargaining because it is granting the union an option to buy. An
option to buy is not covered by the Labor Code, it is covered by
the Law on Sales.
Unless the union puts up option money, it does not really have
a right of first refusal.
If it is non-mandatory subject of bargaining, what is your
option?
The union can push it, but it cannot be the subject of notice of
strike because it does not involve terms and conditions of work.
To be a mandatory subject of bargaining, it must be the
terms and conditions of work of the bargaining unit and
not outside of it.
Ex: bargaining unit of regular employees and not of
probationary employees.
Can the ER in the middle of the CBA say that there is a
new product, and they have to close this old product line?
Can the employer partially close down the department?
YES, that is a prerogative of ownership of the management.
But the mgt has to pay the separation benefits of the EE. The
welfare of the EE is still taken care of.
What happens when there is disagreement arising from
CBA?
Read: Republic savings bank vs. CIR
If there is disagreement, there are still negotiations called
“adjustment”.
Ex: employee discipline
The disciplinary standard for employees is included in the CBA
by way of an annex.
Is CBA a process that has an end? When does the CBA
process end?
Why is there a duty to bargain when there already exists a
CBA?
The CBA is sui generis.
8/8/2023
In the negotiation phase, there is already a SEBA. He is
already asserting his right to collective bargaining.
What are the modes of selecting a SEBA?
(1) The union is declared as the SEBA after the SEBA
proceeding; or
(2) The union is certified after it wins a certification election.
Case: Aristocrat restaurant – because the employer did not
write a counter-proposal, this caused the union to file a notice
of strike.
There is only one negotiating phase. Re-negotiation is the
next phase.
Re-negotiating – you are also administering the old and or malicious refusal to comply with the provisions. It is an
expired CBA because it remains as the agreement between economic provision if it involves a benefit that is granted a peso
the parties. It is automatically extended. value.

Once the CBA expires, the old, expired contract continued until
there is a new CBA.
Negotiating [1st phase] and Re-negotiation [3rd phase] are
materially different.
In the CBA, there is grievance machinery. What do you
follow when the EE does not agree with the ER’s action?
Book Six. Before you can institute a major action [dismissal or
suspension] there must be a procedure. That takes place
before you can go to grievance.
If there is a doubt as to the terminology, that is not a
violation. It is not ULP since it is only a question of
interpretation.
 CARDONA VS. NLRC
The conservator can counterman questionable agreements
and not bona fide agreements. No ULP since there is no
flagrant or malicious refusal to comply with the CBA.

There is already a decision by the ER. There would be a

grievance hearing and grievance letter.

3RD PHASE: Re-negotiation phase

(1) Within the 60-day freedom period; or
(2) Not later than the 3rd year of the CBA.

[Article. 253-A. Terms of a collective bargaining agreement.]

Not later than the 3rd year of the CBA

It was allowed because 5 years is a long time. We might need
to re-negotiate. Before the end of the third year of the CBA,
parties may re-negotiate the terms and conditions as to the last
two years.

Examples of bad faith bargaining

1. Boulwarism

General Electric was not in good faith when they were

bargaining because they have tried to convince everybody else
except the bargaining panel. General Electric did not negotiate
with the bargaining representative.

You cannot bargain with the union members directly, you

can only bargain with the bargaining representative.

2. Surface bargaining
There is no intention on the parties to arrive at a CBA. You
just appear, you fulfill the first requirement- meet promptly and
expeditiously, you are just there.

3. Blue-sky bargaining
Blue sky terminology is used in securities law and not in Labor
Law. When a union makes exaggerated or unreasonable
proposals, that is Blue Sky Bargaining. That is not intended for
agreement because it is impossible to grant. So therefore, you
are engaged in bad faith bargaining on the part of the union.

 Standard Chartered Bank Employees Union (NUBE)

vs. Confessor
This is an obiter dictum. The SC said that there is no blue sky
bargaining in this case. Economic Affordability is not the
measure of the validity of a bargaining proposal.

Whatever the working class now enjoy is a standard, it was

once impossible.
Ex: 8 hours workday.

Economic provisions
Where the nitty gritty of the CBA is contained. ULP violation as
to violation of the CBA is when you do not comply with the
economic provisions of the CBA. It must be gross violation of
the economic provisions of the CBA. Gross violation is flagrant

Unfair labor Practice (ULP) 8/22/23
Once there is an organized concerted activity like a strike, it
becomes disturbance of society in general. It is the only
provision in labor that is interpreted strictly against labor. It is
because society’s peace and equinity are at stake.
Causes of strike
1. Unfair labor practice; and
2. Bargaining deadlock.
The more urgent is unfair labor practice. ULP is committed by
the employer. Most of the cases are ULP committed by the
employer.
What does ULP involve?
Art. 258 of the Labor Code
Article 258. Concept of unfair labor practice and
procedure for prosecution thereof. Unfair labor practices
violate the constitutional right of workers and employees to
self-organization are inimical to the legitimate interests of
both labor and management, including their right to bargain
collectively and otherwise deal with each other in an
atmosphere of freedom and mutual respect, disrupt
industrial peace and hinder the promotion of healthy and
stable labor management relations.
Consequently, unfair labor practices are not only violations
of the civil rights of both labor and management but are also
criminal offenses against the State which shall be subject to
prosecution and punishment as herein provided.
Subject to the exercise by the President or by the Secretary
of Labor and Employment of the powers vested in them by
Articles 263 and 264 of this Code, the civil aspects of all
cases involving unfair labor practices, which may include
claims for actual, moral, exemplary and other forms of
damages, attorney’s fees and other affirmative relief, shall
be under the jurisdiction of the Labor Arbiters.
No criminal prosecution under this Title may be instituted
without a final judgment finding that an unfair labor practice
was committed, having been first obtained in the preceding
paragraph. During the pendency of such administrative
proceeding, the running of the period of prescription of the
criminal offense herein penalized shall be considered
interrupted: Provided, however, that the final judgment in the
administrative proceedings shall not be binding in the
criminal case nor be considered as evidence of guilt but
merely as proof of compliance of the requirements therein
set forth.
You cannot initiate ULP as a criminal proceeding without
completing the administrative process. There is no decision of
the SC of a ULP as a criminal proceeding.
What is the consequence if ULP ripens into a criminal
case?
It cannot be compromised. There will be a filling of an affidavit
of desistance. That is not compromise.
Concept of ULP
It begins procedurally by necessity and by mandate of the law
as a labor proceeding. It has the probability of being filed as a
criminal proceeding, but the labor proceeding must be
terminated first. The labor proceeding must arrive at a positive
determination that ULP was committed. That is jurisdictional so
that you can begin the criminal proceeding.
In the criminal proceeding, you have to being strictly from zero.
Who are the actors in ULP?
1. Employer;
2. Labor organization; and
3. Third person [neither labor nor employer].
Definition of employer in the Labor Code
Art. 219[e]
(e) Employer includes any person acting in the interest of an
employer, directly or indirectly. The term shall not include
any labor organization or any of its officers or agents except
when acting as employer.
The third party is a legitimate third party as an actor in
ULP because of Art. 257.
Article 257. Non-abridgment of right to self-
organization.
It shall be unlawful for any person to restrain, coerce,
discriminate against or unduly interfere with employees and
workers in their exercise of the right to self-organization.
Such right shall include the right to form, join, or assist labor
organizations for the purpose of collective bargaining
through representatives of their own choosing and to
engage in lawful concerted activities for the same purpose
or for their mutual aid and protection, subject to the
provisions of Article 264 of this Code.
4 ways the third party can commit ULP:
1. Restrain;
2. Coerce;
3. Discriminate; and
4. Unduly interfere.
Example of 3rd party committing ULP:
The mayor was asked by his sister to help her son find a job.
The mayor made the nephew work in a factory. However, the
nephew organized a union and a strike in the company. The
mayor asked the police to arrest his nephew for organizing a
union.
The mayor should be charged for violating the freedom of
association, crimes against the fundamental laws under the
criminal code. However, this is still a ULP because the mayor
is restraining his nephew in his right to self-organization.
ULP of employers
Article 259. Unfair labor practices of employers.
It shall be unlawful for an employer to commit any of the
following unfair labor practice:
(a) To interfere with, restrain or coerce employees in the
exercise of their right to self-organization
3 ways of ULP by employers:
1. Interference;
2. Restraint; and
3. Coercion.
Note: You must have an ER-EE relationship before you can
have the RTSO vis-à-vis with that employer. It is not ULP if
there is no ER-ER.
Example: If the employer has a rule that there shall be no
solicitation of union membership within the working
premises during working hours.
Is that an ULP rule?
Yes. In the US Jurisdiction, the court held that rule is ULP
because it is an overarching rule. It is indiscriminate. An
employer has valid business reasons to control the behavior of
its employees for its business end. But the employer cannot
control the employee’s speech that the normal speech will be
impeded.
There are neutral places in the workplace where workers can
engage in topics not about work (ex: canteen, comfort room).
The conditions are too broad. During working hours, there are
rest periods wherein employees can talk about anything else
not related to work. You cannot prevented from soliciting union
membership that time. Thus, the rule is violative of the
employees RTSO.
Example: Union literature is being distributed at the entrance
not within the company premises.
Can they be prevented?
GR: No. Because that is no longer the premises owned by the
employer.
XPN: What if as they are distributing the pamphlets, they just
ignore it and throw it everywhere. Then it rains and somebody
steps on it and gets injured.
That becomes the responsibility of the employees. If the union
literature becomes messy, the employer can stop them from
distributing such. It is ULP restriction based on legitimate
business concern.
Special workplaces
1. Department stores;
2. Supermarket;
3. Hospitals
In these places, if the CR is common with the customers, they
can prevent union speech in these neutral spaces (ex:
corridors).
Hospitals – can prevent union conversation in the neutral
areas because there are patients.
Isolated workplaces
1. Mining areas; and
2. Large agri-business plantations.
These are where the workers live with their employers in bun
houses. Labor organizers cannot be prevented from entering
those places because the RTSO of these employees will be
reduced to zero, unlike in urban setting (factory).
In a factory, when you go home you can still be approached
by the labor organization because your home is separate from
the workplace.
Rules of solicitation
Employer’s speech that contains any promise of reward or
threat of reprisal is unfair labor practice speech.
Promising a reward
EXAMPLE: The owner of the factory finds out that there is
a movement to create a union. He calls all the workers to
a meeting, stops all production, and gives a speech:
“I know you are organizing a union. What is it that you like to
happen to you? What is it that you do not like that is
happening to you? Tell me. You want an increase? I will give
it to you if I can afford it. Tell me. What do you not like?”
That is already an interference speech. You are joining their
RTSO. That is not allowed. There is promise of reward by
promising the employees a raise so that they will not organize
a union. That is ULP.
Threat of reprisal
Example: When the employers say “I have spies here. If I
can discover that you are forming a union. I will fire you.”
That is ULP. You lead your employees to believe that they are
under surveillance.
Another example:
If you know that the EE was absent because of union activities
[certification election] yet you still ask, that is interference
speech by the employer. That is ULP.
Ambivalent speech/Neutral speech
Speech that is purposely written by a lawyer who knows what
culpable ULP speech is. No promise of reward or threat of
reprisal.
Example: When a union is being organized, the management
will call a captain audience meeting to stop all work and gather
everyone. The management will start to speak and says that
“We already know that you are starting a union. We will not
stop you because that is your right. However, we just want to
advice that a union might be bad for you.”
How is ambivalent speech treated in litigation?
It is treated according to the actual history of the employer and
the circumstances that surround that speech. If the employer
has a history of anti-union bias, then that speech is ULP.
Is evidence that one did or did not do at one time, become
an evidence that one did do at another time?
That rule is called Res inter alios acta. The ruling of the SC is
not violative of that rule because we are talking about habit. In
habit, what you did in one time can used to prove your habit or
character.
THIRD EXAM COVERAGE
Unfair labor practice
9/1/23
Right to strike vs. Picketing
Right to strike Picketing
- Statutory [Labor Code]. - Constitutional [Freedom
- Subject to Prerequisites of speech]
- Collective right - Not subject to pre-
- Can be enjoined requisites
- Protected right - Can be done by one
- Based on right to self- person
organization - Cannot be enjoined
- Exercised by legitimate - Privileged right
 labor organization - Based on freedom of 3. Ground for the strike cannot be trivial in character.
[needs juridical speech When the ground to strike is trivial
personality; LLO must - Exercised by Case: Reliance surety vs. NLRC
be registered] employees individually
or collectively [does not Ilaw at Buklod ng mga Manggagawa sa San Miguel
need juridical Corporation vs. NLRC
personality] Wage distortion cannot be ground for strike. A slowdown is
strike. It is partial strike and a strike on installments. When
Privileged right cannot be touched, amended or modified by union declares a slowdown, it not made known to mgt. What is
the plenary powers of the Congress. But a strike[protected being slowed down is the productivity.
right] must be in accordance with law. The right to strike is
subject to the oversight of congress. San Carlos Milling vs. CIR
If the strike is based on collective bargaining deadlock and
Elements of a strike what the union is asking is not within the employer’s ability to
1. Temporary stoppage of work; afford to grant that demand, that is not a trivial ground.
2. Concerted action of employees; Affordability on the part of the employer does not make the
3. Result of a labor dispute [industrial dispute]; and ground trivial.
4. Intention of work stoppage (PBM Employees vs. PBM
Steel). Positive:
1. The strike must be based on CBA deadlock or ULP. If
Case: PBM Employees vs. PBM Steel CBA deadlock, the cooling off period is 30 days. If ULP,
The right of the workers is not a labor right but a right in the the cooling off period is 50 days.
constitution to peaceably assemble and petition the
government for redress and grievance. It is a separate right No-strike clause
from the freedom of speech. If the CBA provides that for the duration of this CBA, there shall
be no lay-off of any employee covered by this agreement and
Property right is inferior to constitutional right. Property right that the union agrees that the union shall not stage any strike.
should give way to the right to peaceably assemble and This no strike clause does not cover ULP strike but only CBA
petition the government for redress and grievance. deadlock strike. It is because if otherwise, the employer can
just commit any ULP.
Work stoppage
A by-product and unintended side effect by the workers. It was 2. The strike must be based on serious grounds.
not a strike even if there was a work stoppage. This case The strike is supposed to be a last resort. You must by all
introduced a 4th requirement: You must intend a work means try to settle the dispute. A labor dispute covers (1)
stoppage. If you did not intend it, then it is not a strike. terms and condition of work; or (2) the right of representation.

An unintended work stoppage is not a strike
In Kiok Loy, the SC held there was no strike because the work
stoppage was not intended.
Government employees
Case: ACT (Association of Concerned Teachers) vs.
Carino
1 week of protesting is peaceably assembling to petition for
redress and grievance. But if 1 month, that is dereliction of
duty, and you can be summarily dismissed for failing to perform
a public function.
The price of petroleum is not a ground to strike. It is not within
the control of the employer. It is not a labor dispute.
GR: A strike should not be the first impulse. There must be
negotiations.
XPN: When it involves dismissal of union leaders and
endangering the union. The union can just file a notice to strike
without observing the cooling off period.
3. The purpose and the means of the strike must be both
lawful.

SSS employee’s association vs. CA
In absence of government legislation regulating the right to
strike, they are prohibited from exercising the right to strike by
virtue of the memorandum order. There is no law yet granting
government employees the right to strike.
The means used in the strike: Violence
Not all strikes with violence makes the strike illegal. Only
pervasive violence changes the nature of the strike from lawful
to unlawful. Opposite of pervasive violence is sporadic
violence.

Requisites for a lawful strike Distinguish pervasive violence and sporadic violence. Once
Article 278 you are an illegal strike, you cannot revert to being a legal
Article 279 strike.
Article 280
Procedural
2 basic categories of requisites for a lawful strike Negative:
1. Substantial; and 1. The strike must not have violated the duty to bargain.
2. Procedural
Case: Insurefco Paper Pulp & Project Worker’s Union v. Sugar
Substantial Refining Corporation
Negative: You must first bargain the union because a strike is last resort
1. Strike must not be based on intra or inter-union and not a first resort.
dispute [Art. 277(b)];
2. Strike must not be based on a violation of CBA except
if the violation of CBA is ULP (gross violation of CBA);
2. There must be no compulsory or voluntary arbitration
of the dispute. The ground to strike must not be the
subject of the compulsory or voluntary arbitration.
Filing both an illegal dismissal complaint and the notice of
strike, renders the strike invalid. You cannot be engaged in two
forums.
Either you withdraw the compulsory arbitration or the strike. If
you submit to voluntary arbitration, and still strike, that is an
illegal strike.
SMART Communications v. CA
3. No violation of no strike, no lockout rule.
Covers only CBA deadlock strike and not ULP strike.
9/5/23
Positive
1. Strike notice under oath and verified.
If the ground for the strike is:
 ULP – the strike notice must contain specific acts and
omissions with the date, place and time which prove the
ULP.
 Bargaining deadlock – attach to the strike notice the:
1. Bargaining proposals of the union;
2. Counterproposal of management; and
3. Progress of the negotiations where there has been
tentative agreements, no agreements and where there has
been deadlock.
The notice of strike should be filed with the ministry because
there should be a determination as to whether a strike notice
should be filed and the sufficiency of the notice. It cannot be
filed in the NCMB [National Conciliation Mediation Board]
because in the NCMB, everything is confidential.
ARTICLE 239. [233] Privileged Communication. —
Information and statements made at conciliation
proceedings shall be treated as privileged communication
and shall not be used as evidence in the Commission.
Conciliators and similar officials shall not testify in any court
or body regarding any matters taken up at conciliation
proceedings conducted by them.
What happens if the labor arbiter orders the conciliator to
testify?
That is illegal. The Conciliator cannot be compelled to testify
because if he were to testify, reconciliation and mediation
process will be less than confidential.
When the union files a strike notice, must the union have
the support of the majority of the union?
No. It is only the decision of the leadership of the union. The
requirement of the strike vote is for later.
Who can file a strike notice?
Preferably it must be the EBA.
Two ways of being a EBA:
(1) Request for SEBA; or
(2) Certification election.
If there is no EBA, can a labor organization file a notice of
strike?
It should be a legitimate labor organization.
If the union receives a charter certificate of local, is that
enough for the union to file a notice of strike?
No. Because that charter certificate is for the provisional
personality of the union to petition for CE. What the union
should do is ask the federation to file a notice of strike.
If there is destruction of property in the strike, it will be the local
who will sustain the damages caused and not the federation.
2. Observance of cooling off period
Cooling off period
ULP – 15 days.
Bargaining deadlock – 30 days
If the striking union fails to observe the cooling off period by 1
day, the strike is illegal. The requisite for strike must be
complied with utmost fidelity.
What will they do during the cooling off period?
They will meet promptly and expeditiously at the place of the
conciliator to reach a settlement.
At the end of the cooling off period, the union can go on
strike. How soon after the end of the cooling off period the
can the union go on strike? Will the union forfeit the right
to strike if they do not strike immediately?
A union can go on strike for as long as the cause or the ground
for strike is still obtaining or has not been settled. Waiting is not
a waiver of the right to strike.
What is considered a waiver of the right to strike?
The act of the union withdrawing its notice of strike. The first
requirement is not fulfilled. Even if the ground is still obtaining,
the union has already forfeited the right to strike on that very
ground they have alleged on their first notice. They can no
longer revive it.
However, if the mgt commits a ULP again, that can be a
ground for filling again a notice of strike.
Why would the union withdraw the notice of strike?
Requirements of strike vote
1. It must be by secret ballot.
2. 24 hours before the taking of the strike vote, the union
must inform the DOLE that the strike vote is to be taken.
The DOLE can send representatives or not attend and just
receive the results.
7-day waiting period
After the taking of the strike vote, there is a 7-day waiting day
period to give a chance to any union member to file a
complaint if there has been any irregularity in the taking of the
strike vote.
The 7-day waiting period is in addition to the cooling off period.
This is the practice that is being followed.
However, the SC held in National Federation of Sugar Workers
v. Ovejera [1982], that the waiting period may be counted
simultaneously with the cooling off period. If there is an excess,
then that is the only additional days.
If there is a complaint as to any irregularity during the cooling
off period, the DOLE can investigate. If they are not satisfied,
they can call again for another strike vote. If there are no
complaints, the union can now strike.
3. Compliance of both parties of the duty to mediate and
conciliate at the auspices of the mediator and conciliator.
Shuttle mediation
The union is in one place and the management is in the office.
The conciliator will go the union and gets his opinion. The
conciliator goes to the mgt and relays the message of the
union and gets the response of the mgt. Then the conciliator
will go back to the union again. The conciliator shuttles
between the union and mgt. They cannot be both on the same
room because they might fight.
Suppose out of the blue, after the waiting period and the
strike, the union sends a letter to mgt informing them that
they are lifting picket lines and they will go back to work.
Then the mgt tells them to just continue the strike
because they already hired additional security guards.
Can the employer do that?
No. The strike does not sever the ER-EE relationship. If the
employer does that, he will be guilty of ULP. If the strikers say
that they are going back to work, they waive their right to strike.
If they go back to the picket line after informing mgt that they
will stop the strike, that is a violation.
If during the conciliation proceedings, mgt says that we
can afford what you are asking but because we do not like
your union leader, we will not grant your request. Can you
use that in court if there is no settlement?
No. That will be self-serving allegation on the part of the union.
There is no corroborative evidence and that cannot be proven.
If the mgt during the conciliation and mediation threatens
the union members and makes promises. Is that ULP?
No. They are privileged communication.
9/12/23
Art 277(g)
- There is no formal proceeding needed. The secretary of
labor can act of his own accord. Any party can go to him
and ask for assumption of jurisdiction.
- Not all can go on strike if it is a hospital.
- In a banking industry, the Secretary of labor can assume
jurisdiction over a labor dispute.
Kinds of labor dispute
1. Rights dispute – Normally disciplinary. An employee is
investigated and is found to be guilty under the company
policies. The company informs that the employee will be
terminated.
The union goes into grievance and ask for a lesser penalty or
prove the innocence of the union member. If the employer
insists, there can be termination.
2. Interest dispute – a bargaining deadlock. There is still no
CBA but there is a clash.
Ex: mgt wants P10 for daily wage but the employees want P50,
and they cannot reach an agreement.
The criteria for an interest dispute are what decision or number
is most livable to all the parties. It is not morality but it is what it
is livable.
Procedural timeline of Art. 277(g)
- As this goes on, there can be controversy as to prohibited
practices.
- One of the consequences of an assumption of jurisdiction
is that the parties must refrain from any conduct that will
aggravate the labor dispute.
- A slowdown has nothing to do with the actual merits that is
being discussed. This may be brought in a motion.
- The union may ask to bring back practices. Mgt might
have withdrawn certain practices as a result of a strike.
What happens when a strike injures a 3 rd party that is not
included in the parties to the dispute?
This is the Liwayway Publishing Corporation v. CIR case.
Manila Bulletin, somewhere in Metro Manila near the pier, had
a compound and Manila Bulletin printing press was located in
one section. Right beside it, were the offices of the printing
press of Liwayway Publishing Company.
The workers picketed and went on a strike and the business of
Liwayway was affected. Liwayway went to the regular courts
because there was no ER-EE between the workers and the
mgt. The mgt resorted to injunction to prohibit the strikers from
picketing the main entrance.
The workers said that if we are not allowed to picket the
entrance, then where will we conduct our picketing. The
workers allege that Liwayway should not be distinguished from
Manila bulletin because they have the same controlling owner
[piercing the veil].
The SC says that Liwayway says an innocent by-stander and
they are not included in the fight between the workers and the
Manila bulletin. [Manila bulletin is the sister company of
Liwayway].
In MSF Tire v. Court of Appeals, during the 2 months strike,
the union entered into an agreement with Siam cement. The
machinery, improvements, buildings, etc, equipment including
the vehicles, were sold to a company that was 80% owned by
Siam cement and 20% owned by the old stockholders of the
tire company.
80% was already run by the foreigners. Only land is only
required to be owned by 60% Filipino owned corporation, it
does not include improvements.
When the union received the restraining order because the
owner now is MSF rubber, the union contested the order. MSF
rubber alleges that it is an innocent bystander and they are
asking relief to lift the picket lines so they can conduct
business.
The SC denied the plea for injunction of MSF. It held that MSF
was not an innocent by-stander because he was privy to the
labor dispute. MSF knows that the one who transferred
ownership is undergoing a labor dispute.
Illustration:
You are a lessee of the mall and you renting a stall. The
workers of the mall were on a strike, and they were picketing
and as stall owner, you cannot enter your stall. The stall owner
may go to court and ask for damages and injunction.

Will the court grant the stall owner’s restraining order?

That depends if you are an innocent by-stander. The stall
owner cannot be granted because the owner is privy to the
contract. You have a lease agreement with the mall. You have
a privity contract with the mall.

Unlike in Liwayway, it does not have a lease agreement with

Manila bulletin.

Illustration:
The union in Holy Cross College, because it is KMU affiliated,
had a very bitter strike against Holy Cross. Not only did they
strike and picket the various entrances in Holy Cross, but they
also picketed the bishop’s residence. The bishop should go to
NLRC and ask that the workers stop picketing at the residence.

But if it is a director who is being picketed, if he should ask for

relief, he should go to the regular courts since he does not
have ER-EE relationship with the workers.

If there is property destruction or damages sustained

during the strike, who pays for that? Employees belonging
to the bargaining unit cannot go to work because there is
a picket line. They are not receiving pay because they
cannot go to court. Who should answer for their strike
duration pay?

Since a strike is allowed by law, whatever losses the strikers

and employers endure is to their own account. As to 3 rd parties
who suffer loss because of the strike, they should bear their
own loss because a strike is a legal activity. Each must bear
his own loss.