LAB REL 3

7/28/2019 LAB REL 3

1/27

1

LABOR RELATIONS

GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION

Article. 260. Grievance machinery and voluntary arbitration. - The

parties to a Collective Bargaining Agreement shall include therein

provisions that will ensure the mutual observance of its terms and

conditions. They shall establish a machinery for the adjustment and

resolution of grievances arising from the interpretation or

implementation of their Collective Bargaining Agreement and thosearising from the interpretation or enforcement of company personnel

policies.

All grievances submitted to the grievance machinery which are not

settled within seven (7) calendar days from the date of its submission

shall automatically be referred to voluntary arbitration prescribed in

the Collective Bargaining Agreement.

For this purpose, parties to a Collective Bargaining Agreement shall

name and designate in advance a Voluntary Arbitrator or panel of

Voluntary Arbitrators, or include in the agreement a procedure for the

selection of such Voluntary Arbitrator or panel of Voluntary

Arbitrators, preferably from the listing of qualified Voluntary

Arbitrators duly accredited by the Board. In case the parties fail to

select a Voluntary Arbitrator or panel of Voluntary Arbitrators, the

Board shall designate the Voluntary Arbitrator or panel of Voluntary

Arbitrators, as may be necessary, pursuant to the selection procedure

agreed upon in the Collective Bargaining Agreement, which shall act

with the same force and effect as if the Arbitrator or panel of

Arbitrators has been selected by the parties as described above.

Grievance refers to any question by either the employer or the unionregarding the interpretation or implementation of any provision of the

collective bargaining agreement or interpretation or enforcement of

company rules and regulations or personnel policies.

Grievance machinery refers to the mechanism for the adjustment and

resolution of grievances arising from the interpretation or

implementation of a CBA and those arising from the interpretation or

enforcement of company personnel policies. It is part of the continuing

process of collective bargaining.

Grievance Procedures refer to the internal rules of procedures

established by the parties in their collective bargaining agreement with

voluntary arbitration as the terminal step, which are intended to

resolve all issues arising from the implementation and interpretation of

their collective agreement. It provides the parties a first crack in

addressing problems in the CBA administration and its use is an

essential requisite before a voluntary arbitrator can take cognizance of

the unresolved grievance. Legally speaking, it is an appeal procedure

and is a must provision in every collective agreement. It is the part of

the agreement which provides for a peaceful way of settling differences

and misunderstanding between the parties.

Legal requirements in the establishment of grievance procedure:(1) Should be sufficient to ensure mutual observance of the terms and

conditions of the CBA;

(2) Should include in the CBA a procedure for the selection of the VAor name and designate in advance a VA.

Mandatory provision in CBA A grievance procedure is a mandatory

provision in the CBA. In the event that a CBA without such provision is

submitted for registration, the registrar should advise the parties to

include a grievance procedure therein before it is considered duly

registered.

Provisions of the CBA subject to grievance machinery:

(1) Economic provisions have direct and measurable monetary costand consequences such as wage rates, paid vacations, pensions,

health and welfare plans, and other fringe benefits.

(2) Non-economic provisions monetary costs cannot be directlycomputed such as the no-strike-no-lockout, union security,

management security, check-off clauses, or grievance procedures.

Establishment of Grievance Committee In the absence of applicable

provision in the CBA, a grievance committee shall be created within 10

days from signing of the collective bargaining agreement. The

committee shall be composed of at least two representatives each from

the members of the bargaining unit and the employer, unless otherwise

agreed upon by the parties. The representatives from among the

members of the bargaining unit shall be designated by the union.

Initiation of grievance:

(1) Grievances are ordinarily brought by the aggrieved employeesusually with the union representative called the shop steward or

grievance officer, to the foreman either orally or in writing. However,

this does not mean that an individual employee or group of employees

cannot present a grievance directly to their employer. Whoever isaggrieved may bring his grievance to the grievance machinery.

(2) Generally, employers cannot initiate grievance. However, the rightgranting the employer to initiate grievance may be included in the CBA

to resolve a question over a vague or indefinite provision of the CBA.

Procedure in handling grievances In the absence of a specific

provision in the CBA or existing company practice prescribing for the

procedures in handling grievance, the following shall apply:

(a) An employee shall present this grievance or complaint orally or inwriting to the shop steward. Upon receipt thereof, the shop

steward shall verify the facts and determine whether or not the

grievance is valid.

(b) If the grievance is valid, the shop steward shall immediately bringthe complaint to the employee's immediate supervisor. The shop

steward, the employee and his immediate supervisor shall exert

efforts to settle the grievance at their level.

(c) If no settlement is reached, the grievance shall be referred to thegrievance committee which shall have 10 days to decide the case.

Where the issue involves or arises from the interpretation or

implementation of a provision in the collective bargaining agreement,

or from any order, memorandum, circular or assignment issued by the

appropriate authority in the establishment, and such issue cannot beresolved at the level of the shop steward or the supervisor, the same

may be referred immediately to the grievance committee.

Submission to Voluntary Arbitration Unresolved grievances will be

referred to voluntary arbitration; and for this purpose, either party may

serve notice upon the other of its decision to submit the issue to

voluntary arbitration. The notice shall state the issue or issues to be

arbitrated, copy thereof furnished the board or the voluntary arbitrator

or panel of VAs named or designated in the CBA. If the party upon

whom the notice is served fails or refuses to respond favorably within 7

days from receipt thereof, the VA or panel of VAs designated in the CBA

shall commence voluntary arbitration proceedings. Where the CBA does

not so designate, the NCMB shall call the parties and appoint a VA or

panel of VAs, who shall thereafter commence arbitration proceedings

VOLUNTARY ARBITRATION

Voluntary Arbitration refers to the mode of settling labor-

management disputes by which the parties select a competent, trained

and impartial persons who shall decide on the merits of the case and

whose decisions in final, executory and unappealable.

7/28/2019 LAB REL 3

2/27

2

Voluntary Arbitrator refers to any person accredited by the Board as

such, or any person named or designated in the CBA by the parties to

act as their voluntary arbitrator, or one chosen by the parties, with or

without the assistance of the Board, pursuant to a selection procedure

agreed upon in the CBA, or one appointed by the NCMB in case either

parties to the CBA refuses to submit to voluntary arbitration. The term

includes panel of voluntary arbitrators.

Two Kinds of Voluntary Arbitrators:

(1) Permanent Arbitrator specifically named or designated in theCBA by the parties as their VA for a period of time, usually during

the lifetime of the CBA rather than for just one case or a specific

group of cases.

(2) Ad Hoc Arbitrator chosen by the parties in accordance with theestablished procedure in the CBA or the one appointed by the

NCMB in case there is failure in the selection or in the case of the

parties to the CBA refuses to submit to voluntary arbitration. He is

named to arbitrate a specific dispute and there is no commitment

to select him again on another set of disputes.

Types of labor disputes to be summated to voluntary arbitration:

(1) Rights disputes include:(a) Unresolved grievances arising from CBA interpretation and

implementation, including violations of the CBA which are not

gross in character;

(b) Unresolved grievances arising from personnel policyenforcement and interpretation, including disciplinary cases.

(2) Interest disputes covers all other labor disputes including ULPsand bargaining deadlocks.

Rights disputes vs. Interest disputes The former contemplate the

existence of a CBA already concluded or a situation in which no effort is

made to bring about a formal change in its terms or to create a new

one. The dispute relates either to the meaning or proper application of

a particular provision therein with reference to a specific situation or to

an omitted case. The claim pertains to rights which have already

accrued and not merely to new ones created for the future. The latter,

on the other hand, relate to disputes over the formation of CBAs or

efforts to secure them. They arise in no such agreement or where it is

sought to change the terms of one and, therefore, the issue is not

whether an existing agreement controls the controversy. They look to

the acquisition of rights for the future, not to assertion of rights claimed

to have vested in the past.

In right disputes, the role of the VA is similar to a court construing acontract, which is to adjudicate rather than legislate. In interest

disputes, the VA is that of a legislator or a bargainer for the parties. He

supplements the collective bargaining process by doing the bargaining

for both parties after they have failed to reach an agreement through

their own bargaining efforts.

Arbitration clause provision in the CBA requiring that grievances, if

unsettled, shall be finally resolved by a VA.

Issues of Arbitrability:

(1) That the case does not involve any of the disputes that are coveredby the arbitration clause;

(2) That while covered by the arbitration clause, some conditionsprecedent such as the exhaustion of the grievance procedure, or

timely notice of intent to arbitrate, have not been met.

Joint submission to arbitration by the parties no problem; but when

only one initiates arbitration by filing a notice of intent to arbitrate

under the arbitration clause of the CBA the other party may raise

issues of arbitrability.

Compulsory Arbitration a system whereby the parties to a dispute are

compelled by the government to forego their right to strike and are

compelled to accept the resolution of their dispute through arbitration

by a third party. It is a mode of resolving a dispute whereby the consent

of one of the parties is enforced by virtue of the law and following

certain procedure laid down by law. The resolution of the dispute is

arrived at by resort to a disinterested third party whose decision is final

and binding on the parties. But in compulsory arbitration, such a third

party is normally appointed by the government.

Authority of Voluntary Arbitrators Under the Labor Code, the

authority to conduct compulsory arbitration is principally vested upon

Labor Arbiters. But cases over which the Labor Arbiter have original and

exclusive jurisdiction may also be taken cognizance of by the VAs who

shall have original and exclusive jurisdiction to hear and decide all

unresolved grievances arising from interpretation or implementation of

the CBA and personnel policies. Likewise, the VA, by virtue of an

agreement of the parties to a controversy, may also hear and decide all

other labor disputes, including unfair labor practices and bargaining

deadlocks. The authority to the VAs of said power is also vested upon

Labor Arbiters. However, there are limitations on the power of the

Labor Arbiters or the NLRC to hear and decide certain cases. Althoughcases arising from the interpretation and implementation of CBAs and

personnel policies may have been filed with the Labor Arbiters under

all-embracing jurisdictional provisions of the Labor Code, however, the

law requires that the same be disposed of by the Labor Arbiters through

no other manner except by referring them to the grievance machinery

and voluntary arbitration as may be provided in said agreements.

Authority of the NLRC The exercise of the NLRC of its appellate

jurisdiction cannot be considered part of the compulsory arbitration

process. When a Labor Arbiter renders his decision, compulsory

arbitration is deemed terminated because with the issuance of his

decision, the hearing and determination of the issues in a case are

terminated. The NLRCs act is merely confined to the review of the

decision of the Labor Arbiter to determine any possible error in his

findings of fact or law. However, the NLRCs exercise of its original

jurisdiction is part of the compulsory arbitration. The NLRC is said to

engage in compulsory arbitration when it hears and decides petitions

for injunction and national interest cases certified to it for compulsory

arbitration by the DOLE Secretary.

Execution of VAs Decision The VA has a power to issue writs of

execution. The moment he issues a decision and there is no appeal, the

decision of the VA becomes final and executory after 10 days fromreceipt of such decision. The winner will now file a motion for

execution. The VA will issue a writ of execution just like a Labor Arbiter.

Appeal Decision of VA One can appeal the decision of the VA by

appealing to the CA within 15 days from the decision (Sec. 1, Rule 43).

The decision of the VA becomes final after 10 days but you have 15 days

to appeal to the CA, which is why you have to give notice to the VA that

you are appealing in order to stay the execution of the decision.

Unionized Establishment Only Article 260 has exclusive application

only to situations where there is a CBA involved embodying provisions

on grievance machinery and voluntary arbitration. The existence of a

CBA presupposes that the establishment is organized or unionized or

that the employees therein are being represented by a duly certified

bargaining union. Where there is no CBA or bargaining union

representing the employees, Article 260 is silent on the particular

procedure. Absent any particular procedure in law mandating the

creation of grievance machinery in unorganized or non-unionized

establishments, there is no legal compulsion on the part of the

employer and employees to create one or resort to this effective

alternative mode of resolving their disputes.

7/28/2019 LAB REL 3

3/27

3

Compulsory Arbitration vs. Voluntary Arbitration

Compulsory arbitration is a system whereby the parties to a dispute are

compelled by the government to forego their right to strike and are

compelled to accept the resolution of their dispute through arbitration

by a third party. The essence of arbitration remains since a resolution of

a dispute is arrived at by resort to a disinterested third party whose

decision is final and binding on the parties, but in compulsory

arbitration, such a third party is normally appointed by the government.

Under voluntary arbitration, on the other hand, referral of a dispute by

the parties is made, pursuant to a voluntary arbitration clause in their

collective agreement, to an impartial third person for a final and binding

resolution. Ideally, arbitration awards are supposed to be complied with

by both parties without delay, such that once an award has been

rendered by an arbitrator, nothing is left to be done by both parties but

to comply with the same. After all, they are presumed to have freely

chosen arbitration as the mode of settlement for that particular

dispute. Pursuant thereto, they have chosen a mutually acceptable

arbitrator who shall hear and decide their case. Above all, they have

mutually agreed to de bound by said arbitrator's decision.

Article. 261. Jurisdiction of Voluntary Arbitrators or panel of Voluntary

Arbitrators. - The Voluntary Arbitrator or panel of Voluntary

Arbitrators shall have original and exclusive jurisdiction to hear and

decide all unresolved grievances arising from the interpretation or

implementation of the Collective Bargaining Agreement and those

arising from the interpretation or enforcement of company personnel

policies referred to in the immediately preceding article. Accordingly,

violations of a Collective Bargaining Agreement, except those which

are gross in character, shall no longer be treated as unfair labor

practice and shall be resolved as grievances under the Collective

Bargaining Agreement. For purposes of this article, gross violations of

Collective Bargaining Agreement shall mean flagrant and/or malicious

refusal to comply with the economic provisions of such agreement.

The Commission, its Regional Offices and the Regional Directors of the

Department of Labor and Employment shall not entertain disputes,

grievances or matters under the exclusive and original jurisdiction of

the Voluntary Arbitrator or panel of Voluntary Arbitrators and shall

immediately dispose and refer the same to the Grievance Machinery

or Voluntary Arbitration provided in the Collective Bargaining

Agreement.

Original and Exclusive Jurisdiction of Voluntary Arbitrators:(1) Unresolved grievances arising from the interpretation or

implementation of the CBA;

(2) Unresolved grievances arising from the interpretation of companypersonnel policies;

(3) Wage distortion issues arising from the application of any wrongwage orders in organized establishments;

(4) Other labor disputes, including ULP and bargaining deadlocks, uponagreement of the parties;

(5) Unresolved grievances arising from the interpretation andimplementation of the Productivity Incentive Programs under RA

6971.

Voluntary arbitration from grievance machinery is actually a mode of

appeal as may be gleaned from the Article 260, in relation to Article

261, that all grievances which are not settled or resolved within 7

calendar days from the date of their submission for resolution to the

last step of the grievance machinery shall automatically be referred to

voluntary arbitration prescribed by the CBA.

Only grievances that are unresolved by the grievance machinery fall

within the original and exclusive jurisdiction of the VA. If a grievance

has not been submitted at the first instance to the grievance machinery,

the VA do not have jurisdiction to decide it. It is actually the grievance

machinery which is exercising the original and exclusive jurisdiction over

the same and not the VAs, who may only validly acquire jurisdiction

over them if they are not settled or resolved within 7 calendar days

from the date of submission for resolution to the last step of the

grievance machinery.

Unresolved grievances

(1) A decision or resolution was rendered thereon through the varioussteps of the grievance machinery and either or both of the parties

is/are not satisfied therewith;

(2) No action at all was taken thereon within the period of 7 days fromits submission for resolution to the last step of the grievance

machinery. (Not from the date of the issuance of any decision or

resolution on the grievance.)

Note: If no action or resolution is made by the grievance machinery

within said period, what is brought before the VA is not a decision or

resolution but the very raw issues presented as grievance before the

grievance machinery.

Cases cognizable by VA but filed with the Labor Arbiteror the regularcourts In case of conflict in jurisdiction, the law provides that the

NLRC, its Regional Offices and the Regional Directors of the DOLE are

not allowed to entertain disputes and grievances under the exclusive

and original jurisdiction of the VA and are required to refer the same to

the grievance machinery or voluntary arbitration under the CBA.

When jurisdiction is exercised:

(1) Upon receipt of a Submission Agreement duly signed by bothparties.

(2) Upon receipt of the notice to arbitrate when there is refusal fromone party.

(3) Upon receipt of an appointment/designation as VA by the board ineither of the following circumstances:

(a) In the event that parties fail to select an arbitrator; or(b) In the absence of a named arbitrator in the CBA and the party

upon whom the notice to arbitrate is served does not

favorably reply within 7 days from the receipt of such notice.

Initiation of Arbitration:

(1) By Submission Agreement(2) By Demand or Notice to Arbitrate invoking the arbitration clause in

the CBA

(3) An appointment from the NCMB(1) Submission Agreement refers to a written agreement by theparties submitting their case for arbitration, containing a statement of

the issues, the name of their chosen VA and a stipulation and an

undertaking to abide by and comply with the resolution that may be

rendered therein, including the cost of arbitration.

Contents of Submission Agreement:

(a) An agreement to submit to arbitration;(b) The specific issue/s to be arbitrated;(c) The name of the arbitrator;(d) The names, addresses and contact numbers of the parties;(e) The agreement to perform or abide by the decision.(2) Notice to Arbitrate refers to a formal demand made by one partytothe other for the arbitration of a particular dispute in case of refusal

of one party in a CBA to submit the same to arbitration.

Submission to arbitration through Notice to Arbitrate After

exhaustion of the grievance procedure but the grievance remains

unresolved and there is refusal from one party to submit to voluntary

arbitration, the following procedure shall be observed:

7/28/2019 LAB REL 3

4/27

4

(a) A notice to arbitrate shall be served upon the unwilling party, copyfurnished the permanent arbitrator and the NCMB Regional Branch

having jurisdiction over the workplace;

(b) Upon receipt of a notice to arbitrate after the lapse of the seventh-day period within which to respond, the permanent arbitrator/s

shall immediately commence arbitration proceedings;

(c) In the absence of a permanent arbitrator in the CBA, the NCMBappoints a voluntary arbitrator who shall immediately commence

arbitration proceedings upon receipt of such appointment.

Contents of a Notice to Arbitrate:

(a) The names, addresses and contact numbers of the party uponwhom the notice is made;

(b) The arbitration clause of the CBA;(c) The specific issue/s or dispute/s to be arbitrated;(d) The relief sought;(e) The name, address and contact numbers of the initiating party

requesting arbitration.

Submission Agreement vs. Notice to Arbitrate The former is

sometimes called a stipulation or an agreement to arbitrate. It is

used where there is no previous agreement to arbitrate. It describes anexisting dispute. It is more appropriate in interest disputes since CBAs

generally do not provide for the arbitration of such disputes that may

arise in the future. The latter, on the other hand, is more applicable to

rights disputes because CBAs are required to provide for a grievance

procedure and a voluntary arbitration clause with respect to disputes

arising from the application or interpretation of CBAs or company

personnel policies. If a dispute is covered by such an arbitration clause,

arbitration may be initiated by one party by serving upon the other a

written demand or notice of intent to arbitrate.

(3) Appointment from the NCMBContents of an appointment from the NCMB:

(a) The name of the arbitrator;(b) The names, addresses and contact numbers of the parties;(c) The issues to be arbitrated;(d) The basis of appointment;(e) The arbitrator's fee;(f) The signature of appointing NCMB Director.Jurisdiction over ULP practices, bargaining deadlocks and other labor

issues The VAs, upon agreement of the parties, are also empowered

to hear and decide the same issue of ULP, bargaining deadlocks andother labor disputes. The parties may opt to file any of those cases

either before the Labor Arbiter or VAs, both of whom may validly

exercise original and exclusive jurisdiction. The important requirement

here is that the parties must mutually agree to submit them to the VA.

Jurisdiction over termination cases Termination cases fall under the

original and exclusive jurisdiction of the Labor Arbiters and not of VAs,

unless there is an express agreement between the parties to submit the

termination dispute to voluntary arbitration.

Jurisdiction over money claims The law precludes the Labor Arbiter

from enforcing money claims arising from the implementation of a CBA

if the CBA complementarily recognizes that it is the VA who has the

jurisdiction to hear the claim. The jurisdiction of the VA must be

voluntarily conferred upon by the parties to the dispute.

Jurisdiction over strike and lockout cases The VA may hear and

decide such cases as long as the parties mutually agree to submit it to

voluntary arbitration. As far as national interest cases are concerned,

the parties may opt to submit their disputes to voluntary arbitration,

before or at any stage of the compulsory arbitration process therein.

Jurisdiction over cases involving violations of the CBA Generally,

violation of a CBA is no longer treated as an ULP. It should be resolved

as a ordinary grievance properly cognizable under the grievance

machinery and general arbitration provisions of the CBA. However, if

the violation of the CBA is gross in character (refusal to comply with

economic provisions is flagrant or malicious), it should be treated as

ULP and may be taken cognizance of by the Labor Arbiter or by the VA,

upon agreement of the parties.

Jurisdiction over wage distortion

(1) In organized establishments Any dispute arising from such wagedistortion should be resolved through the grievance procedure under

the CBA and if it remains unresolved, through voluntary arbitration.

Unless agree upon by the parties in writing, such dispute shall be

decided by the VA within 10 calendar days from the time said dispute

was referred to voluntary arbitration.

(2) In unorganized establishments the employers and workers shouldendeavor to correct such distortion among themselves. Any dispute

arising therefrom should be settled through the NCMB and if it remains

unresolved after 10 calendar days of conciliation, it should be referred

to the Labor Arbiter in the appropriate branch of the NLRC. The LaborArbiter shall decide the dispute within 20 calendar days from the time

said dispute is submitted for compulsory arbitration.

Wage distortion a situation where an increase in prescribed wage

rates results in the elimination or severe contraction of intentional

quantitative differences in wage or salary rates between and among

employee groups in an establishment as to effectively obliterate the

distinctions embodied in such wage structure based on skills, length of

service or other logical bases of differentiation. Whether a wage

distortion exists is a question of fact that is within the jurisdiction of the

quasi-judicial tribunals. Their actual findings are accorded respect and

even finality by the SC if they are supported by substantial evidence.

Jurisdiction over disputes involving the Productivity Incentives

Program Disputes and grievances must first be submitted to the

Labor-Management Committee for resolution. If they remain

unresolved within 20 calendar days from the time of their submission to

said Committee, the same should be submitted for voluntary

arbitration, in line with the pertinent provisions of the Labor Code.

Jurisdiction over cases of teaching and non-teaching personnel in

private schools Disputes fall under the jurisdiction of the DOLE. In

view of the special employment status of teaching and academic non-teaching personnel and their special roles in the advancement of

knowledge, standards set or promulgated jointly by the DepEd and by

the DOLE should be applied by the latter. Every private school is

required to establish and implement an appropriate system within the

school for the prompt and orderly settlement of personnel disputes at

the school level, subject to the provisions of Article 260 and 261.

Selection and Accreditation of Voluntary Arbitrators

General considerations:

(1) field of choice, or the problem of availability of desired persons;(2) legal qualification;(3) legal disqualification; and(4) criteria and attributes of a suitable arbitrator.Attributes that a voluntary arbitrator should possess:

(1) he must be without prejudice or bias(2) he must be intelligent(3) he must be capable of exercising sound judgment(4) he must be immune to pressures from the parties and from others(5) he must be experienced in the field of labor relations.

7/28/2019 LAB REL 3

5/27

5

Indicators of the acceptability of a VA:

(1) highly knowledgeable and has had significant experience in thefield of labor law, labor relations, personnel management and

union problems;

(2) has the capacity to run a hearing fairly and competently andcommand respect in his role;

(3) is sensitive to and understands the needs of the parties insofar as adecision is concerned and the articulation of the reasons upon

which it is based;

(4) has a reputation in the industrial and union community for fairnessand impartiality; and

(5) because of character, can be depended upon not to depart fromthe ethical standards which arbitrators impose upon themselves.

Accreditation all qualifications prescribed by the NCMB must be met

Period of effectivity of accreditation 5 years

Minimum criteria for accreditation as a VA:

(1) He/she must be a Filipino citizen residing in the Philippines;(2) He/she must be a holder of at least a Bachelors degree preferably

relevant to Labor and Social Relations, Economics and related fieldsof study;

(3) He/she must have at least five (5) years experience in the field ofLabor-Management relations.;

(4) He/she has no pending criminal case involving moral turpitude;(5) Must have completed a training course on voluntary arbitration

conducted by the Board;

(6) Must be a person of good moral character, noted for impartiality,probity, and has not been civilly, criminally and administratively

adjudged guilty of any offense involving moral turpitude as

evidenced by a duly sworn affidavit.

Pre-accreditation Training Program An applicant who possesses the

minimum qualifications will be required to undergo a pre-accreditation

training program to equip him with the basic knowledge, skills and

value orientation necessary to perform the responsibilities and

functions of an accredited voluntary arbitrator. Exception: For

prospective arbitrators who have adequate experience and exposure in

the field of arbitration and labor-management relations, they shall be

required only to attend a briefing/orientation in lieu of a pre-

accreditation training.

Renewal of Accreditation Before the expiration of the fifth year of

accreditation, the NCMB will send advice/notice to the voluntaryarbitrator requiring him/her to comply with certain requirements

including submission of updated bio-data, new affidavit stating that he

has no pending criminal case involving moral turpitude.

After a thorough review of the new credentials submitted, the records

and performance of the voluntary arbitrator concerned as to case

disposition and participation to NCMB programs and activities and

voluntary arbitration, the NCMB shall decide whether to issue or not a

certificate renewing the accreditation for another five (5) years.

Article. 262. Jurisdiction over other labor disputes. - The Voluntary

Arbitrator or panel of Voluntary Arbitrators, upon agreement of the

parties, shall also hear and decide all other labor disputes including

unfair labor practices and bargaining deadlocks.

Jurisdiction conferred by mutual agreement of parties The

jurisdiction of the VA to hear and decide all other labor disputes,

including ULP and bargaining deadlocks, is conferred by the parties and

such conferment is recognized by law.

Nature of Jurisdiction

General Rule: Jurisdiction over the subject matter of a suit must find

support in the law and cannot be conferred by consent or acquiescence

of any or all parties or by erroneous belief of the court that it exists.

Exception: Parties to a contract may submit to arbitration whatever

controversy may arise therefrom. Jurisdiction over labor disputes is

allowed by law to be conferred by the parties upon the VA.

Article. 262-A. Procedures. - The Voluntary Arbitrator or panel of

Voluntary Arbitrators shall have the power to hold hearings, receive

evidences and take whatever action is necessary to resolve the issue

or issues subject of the dispute, including efforts to effect a voluntary

settlement between parties.

All parties to the dispute shall be entitled to attend the arbitration

proceedings. The attendance of any third party or the exclusion of any

witness from the proceedings shall be determined by the Voluntary

Arbitrator or panel of Voluntary Arbitrators. Hearing may be

adjourned for cause or upon agreement by the parties.

Unless the parties agree otherwise, it shall be mandatory for the

Voluntary Arbitrator or panel of Voluntary Arbitrators to render anaward or decision within twenty (20) calendar days from the date of

submission of the dispute to voluntary arbitration.

The award or decision of the Voluntary Arbitrator or panel of

Voluntary Arbitrators shall contain the facts and the law on which it is

based. It shall be final and executory after ten (10) calendar days from

receipt of the copy of the award or decision by the parties.

Upon motion of any interested party, the Voluntary Arbitrator or

panel of Voluntary Arbitrators or the Labor Arbiter in the region

where the movant resides, in case of the absence or incapacity of the

Voluntary Arbitrator or panel of Voluntary Arbitrators, for any reason,

may issue a writ of execution requiring either the sheriff of the

Commission or regular courts or any public official whom the parties

may designate in the submission agreement to execute the final

decision, order or award.

Powers of the VA:

(1) Require any person to attend hearing/s;(2) Subpoena witnesses and receive documents when the relevancy of

the testimony and the materiality thereof has been demonstrated

to the arbitrator;

(3) To take whatever action is necessary to resolve the issue/s subjectof the dispute;

(4) To issue a writ of execution to enforce final decisions and inconnection therewith, it shall be his duty to:

(a) See to it that his/her decision is fully satisfied;(b) Inquire into the correctness of the execution of his/her final

decision;

(c) Consider whatever supervening event that may transpireduring such execution;

(d) Determine every question of fact and law which may beinvolved in the execution.

Adjudicatory Power The VA has the power to hold hearings, receive

evidence and take whatever action is necessary to resolve the issues of

the dispute. Arbitrators must feel free to participate personally in the

hearing by asking questions, seeking information and exploring all

angles which he deems necessary for a full understanding of the case.

Compulsory Power VAs have the power to require any person to

attend hearings as a witness. They have the power to subpoena

witnesses and documents when the relevance of the testimony and the

materiality thereof has been demonstrated to them. However, even

assuming its legality, the use of subpoena is not to be encouraged.

7/28/2019 LAB REL 3

6/27

6

Demands for relevant information by either party should be honored

without the formality of a subpoena.

Duty to conciliate and mediate The VA must exert best efforts to

conciliate or mediate to aid the parties in reaching a voluntary

settlement of the dispute before proceeding with arbitration.

Conciliation or mediation should be made even after arbitration has

been initiated and an arbitration hearing has already been commenced.

Duty to encourage parties to enter into stipulation of facts The VA

should encourage the parties to enter into a stipulation of facts which

should be reduced in writing and signed by the parties. The same shall

form part of the records of the case.

Pleadings and appearances in Voluntary Arbitration

Where to file directly to the chosen VA at his designated business or

professional office, copy furnished the Regional Branch of the NCMB

having jurisdiction of the workplace of the complainant.

Service of copies of pleadings, notices and awards:

(1) By personal service;(2) By registered mail.Representations The parties may personally appear in their own

behalf or by their respective representatives. In the latter case, a partys

representative must be duly authorized to appear in writing or he

should be a practicing attorney-in-law. Attorneys or representatives

cannot, without a special power of attorney or express consent, enter

into a compromise agreement with the opposing party in full or partial

discharge of a clients or principals claim.

PROCEEDINGS BEFORE A VOLUNTARY ARBITRATOR

Nature of proceedings non-litigious; they are not governed by

technical rules applicable to court or judicial proceedings but they must,

at all times, comply with the requirements of due process.

Setting of initial conferenceWithin 2 days from receipt of the parties

Submission Agreement, Notice to Arbitrate or Appointment from the

NCMB, the VA is required to set the date, time and place of the initial

conference, with due notice to the parties.

Initial Conference parties are encouraged to explore possible means

of effecting a voluntary settlement of the dispute between them. If theyarrived to an agreement, the same shall be reduced in writing and

signed by the parties before the VA and shall form part of the decision.

Stipulation of facts In the absence of settlement, the VA should

require the parties to stipulate on facts which are no longer disputed,

leaving the presentation and examination of evidence only to such facts

that are still in dispute.

Effect of non-appearance of parties In case of non-appearance for 2

consecutive conferences despite due notice, the VA shall terminate the

conference and issue an order requiring the parties to submit their

respective position papers within 10 calendar days from the receipt of

the said order; otherwise, the case should be deemed submitted for

decision based on the available records on file.

Clarificatory conference or ocular inspection held after the

submission of the position papers and other pleadings.

Recording of the proceedings need not be recorded, but the VA

should make a written summary of the proceedings, including the

substance of the evidence presented.

Exhibits evidence presented and presented in written form; the party

offering must be prepared to use a witness to identify the exhibit and to

show its accuracy if the other party does not accept the same for what

it purports to be.

Due process VAs should observe the requirements of procedural due

process by providing the parties to a case, adequate opportunities to be

heard. Employers are likewise entitled to due process.

Ex parte proceedings and default awards Only an unexplained failure

to appear due notice, not a delay in appearance, can justify an ex parte

proceeding. The Arbitrator must proceed to hear the testimony and

receive all the evidences submitted by the other party including those

that he may require for the making of an award.

Re-opening of hearing Under accepted practice the arbitrator on his

own initiative, or upon request of a party for good cause shown, may

reopen the hearing at any time before the award is rendered. If

reopening would prevent the issuance of the award within the

mandatory time limit, the hearing may not be reopened unless the

parties agree to extend the time limit.

Withdrawal of cases from arbitration Parties may withdraw a case

through agreement. The complainant usually may withdraw the case at

any point prior to arbitration hearing, but after the hearing has

commenced, he may not withdraw the case over the objection of the

other party unless permitted by the arbitrator. Agreement provision

usually allows withdrawal of the case after arbitration hearing only by

mutual consent of the parties.

ARBITRATION DECISIONS AND AWARDS

Decision in arbitration case The final arbitration disposition of issues

submitted to voluntary arbitration is the decision which may take the

form of a dismissal of a claim or grant of a specific remedy, either by

way of prohibition of the commission of particular acts or the specific

performance of particular acts. It has the same legal effect as a

judgment of a court. A decision on matters of fact and law is conclusive

and all matters in the award are res judicata.

Mandatory period to render award or decision Unless the parties

agree otherwise, it shall be mandatory for the VA to render an award or

decision within 20 calendar days from the date of submission of the

case for resolution.

In case of labor disputes causing or likely to cause a strike or lockout in

an industry indispensable to the national interest which has been

submitted for voluntary arbitration, the same should be resolved by the

VA within 30 calendar days from the date of submission thereof for

resolution. The decision of the VA shall be final and executory 10

calendar days after receipt thereof by the parties. Failure on the part of

the VA to render such decision, resolution, order or award, within the

prescribed period shall, upon complaint of a party, be a sufficient

ground for the NCMB to discipline said VA, pursuant to the guidelines

issued by the DOLE Secretary.

Full and complete settlement of issues during pendency of arbitration

proceedings the terms of the settlement must be reduced in writing

and adopted as the decision of the arbitrator.

Monetary award the amount granted and the formula used in the

computation, if any, should be specified.

Finality of award and decision The decision or award of the VA shall

be final and executory after 10 calendar days from receipt of the copies

thereof by the parties.

7/28/2019 LAB REL 3

7/27

7

Motion for reconsideration of VA decision

TENG vs. PAHAGAC

Facts: Teng engaged in a deep sea fishing business. Teng claims that he

customarily enters into JVAs with master fishermen (maestros) who are

experts in deep sea fishing. The maestros hired respondents as checkers

to determine the volume of the fish caught in every fishing voyage.

Respondents filed a complaint for illegal dismissal against Teng before

the NCMB. In his defense, Teng maintained that he did not have any

hand in hiring respondents; the maestros invited them to join the

venture. The VA rendered a decision in Tengs favor and declared that

no ER-EE relationship existed. The respondents received the VAs

decision on June 12, 2003. They filed an MR, which was denied in an

order, which they received on July 8, 2003. On July 21, 2003, the

respondents elevated the case to the CA, which reversed the VA's

decision. On appeal, Teng contends that the VAs decision is not subject

to an MR in the absence of any specific provision allowing this recourse.

Held: Article 262-A provides that the decision of the VA shall be final

and executory after 10 calendar days from receipt of the copy of the

award or decision by the parties. Presumably, the decision may still bereconsidered by the VA on the basis of an MR duly filed during that

period. The seasonable filing of an MR is a mandatory requirement to

forestall the finality of such decision. The absence of a categorical

language in Article 262-A does not preclude the filing of an MR of the

VAs decision within the 10-day period. Tengs allegation that the VAs

decision had become final and executory by the time the respondents

filed an appeal with the CA thus fails. The respondents seasonably filed

an MR of the VAs judgment, and the VA erred in denying the motion.

A contrary provision can be found in DO 40-03, providing that the

decision of the VA is not subject of an MR. Neither the VA nor Teng

cited DO 40-03 as authorities for their cause, considering that these

were the governing rules while the case was pending and these directly

and fully supported their theory. Had they done so, their reliance on the

provisions would have nevertheless been unavailing. By allowing a 10-

day period, the obvious intent of Congress in amending Article 263 to

Article 262-A is to provide an opportunity for the party adversely

affected by the VAs decision to seek recourse via an MR or a petition

for review under Rule 43. Indeed, an MR is the more appropriate

remedy in line with the doctrine of exhaustion of administrative

remedies. For this reason, an appeal from administrative agencies to

the CA via Rule 43 requires exhaustion of available remedies as a

condition precedent. By disallowing reconsideration of the VAsdecision, DO 40-03 denies the VA the chance to correct himself and

compel the courts of justice to prematurely intervene with the action of

an administrative agency entrusted with the adjudication of

controversies coming under its special knowledge, training and specific

field of expertise. Relief must first be obtained in an administrative

proceeding before a remedy will be supplied by the courts even though

the matter is within the proper jurisdiction of a court.

Modification of award and decision by motion or motu proprio An

award should be regarded as the judgment of a court of last resort so

that all reasonable presumption should be ascertained in its favor and

easy mode of obtaining justice, would be merely an unnecessary step in

the course of litigation, causing delay and expenses, but not finally

settling anything. In the interest of justice and industrial peace,

however, the consistent stand of the NCMB has been that voluntary

arbitrator may modify their original awards or decisions but only to

correct typographical or harmless errors that are patently obvious on

the face of the award or decision. They may not, however, introduce a

substantial amendment to their award or decision in the guise of

correcting a harmless or typographical error.

JUDICIAL REVIEW OF DECISIONS OF VOLUNTARY ARBITRATORS

Decisions are final and executory As a general rule, decision and

awards of VAs are final, unappealable and executory within 10 calendar

days from receipt of a copy thereof by the parties. It is well-settled rule,

however, that the findings of fact and law made by the VA may be

reviewed by the court.

Grounds for contesting the VAs decision:

(1) Lack or want of jurisdiction;(2) Grave abuse of discretion;(3) Violation of due process;(4) Denial of substantive justice;(5) Erroneous interpretation of the law.Factual findings of VA Findings of facts of VAs are accorded not only

respect but even finality if they are supported by substantial evidence,

even if not overwhelming or preponderant.

APPEAL FROM DECISIONS OF VOLUNTARY ARBITRATORS

Ordinary appeal under Rule 43 A VA enjoys in law the status of aquasi-judicial agency; hence, his decisions and awards are appealable by

way of a petition for review to the CA.

LDB vs. ALDBE

Facts: From a submission agreement of the LDB and the ALDBE arose an

arbitration case to resolve whether or not the company has violated the

CBA provision and the MOA on promotion. At a conference, the parties

agreed on the submission of their respective position papers. Atty.

Garcia, in her capacity as VA, received ALDBE's position paper. LDB, on

the other hand, failed to submit its position paper despite a letter from

the VA reminding them to do so. Without LDB's position paper, the VA

rendered a decision.

Held: The jurisdiction conferred by law on a VA is quite limited

compared to the original jurisdiction of the labor arbiter and the

appellate jurisdiction of the NLRC. The award or decision of the VA shall

be final and executory after 10 calendar days from receipt of the copy

of the award or decision by the parties, while the decision, awards, or

orders of the Labor Arbiter are final and executory unless appealed to

the NLRC by any or both parties within 10 calendar days from receipt of

such decisions, awards, or orders. Hence, while there is an express

mode of appeal from the decision of a labor arbiter, RA 6715 is silentwith respect to an appeal from the decision of a VA. The awards of VAs

determine the rights of parties; hence, their decisions have the same

legal effect as judgments of a court. It follows that the VA, whether

acting solely or in a panel, enjoys in law the status of a quasi-judicial

agency but independent of, and apart from, the NLRC since his

decisions are not appealable to the latter.

Assuming arguendo that the VA may not strictly be considered as a

quasi-judicial agency, board or commission, still both he and the panel

are comprehended within the concept of a "quasi-judicial

instrumentality." An "instrumentality" is anything used as a means of

agency. Thus, the terms governmental "agency" or "instrumentality"

are synonymous in the sense that either of them is a means by which a

government acts, or by which a certain government act or function is

performed. The VA no less performs a state function pursuant to a

governmental power delegated to him under the provisions in the

Labor Code and he falls, therefore, within the contemplation of the

term "instrumentality." In effect, this equates the award or decision of

the voluntary arbitrator with that of the RTC. Consequently, in a

petition for certiorari from that award or decision, the CA must be

deemed to have concurrent jurisdiction with the SC.

7/28/2019 LAB REL 3

8/27

8

Period of appeal within 15 days from notice of the award, judgment

or final order or resolution of the VA.

Use of Rule 65 instead of Rule 43 as mode of appeal Use of an

erroneous mode of appeal is a valid cause for dismissal of a petition for

certiorari. The independent action of certiorari under Rule 65 cannot be

availed of as a substitute for the lost remedy of an ordinary appeal,

including that provided under Rule 43, especially if such loss or lapse

was occasioned by ones own neglect or error in the choice of remedies.

It must be noted that Rule 65 lies only where there is no appeal and

no plain, speedy and adequate remedy in the ordinary course of law.

Exceptions when Rule 65 is given due course despite availability of

remedy of appeal:

(1) When public welfare and advancement of public policy dictates;(2) When the broader interest of justice so requires;(3) When the writs issued are null and void; or(4) When the questioned order amounts to an oppressive exercise of

judicial authority.

SAMAHAN NG MGA MANGGAGAWA SA HYATT vs. BACUNGAN

Facts: In 1995 and 1996, Dacles and Valencia respectively assumed their

duties as glass cleaners at Hyatt, pursuant to the cleaning service

contract executed between Hyatt and CSC. Meanwhile, Hyatt hired

Dalmacio and Dazo on a casual basis as florist/sales clerk and

helper/driver, respectively. After their contracts expired, the two signed

another employment contract with Hyatt. During a meeting, petitioner

union questioned the status of Dacles, et al. Petitioner union and Hyatt

agreed to submit the matter for resolution through the grievance

machinery as provided for in their CBA. Petitioner union claimed that

Dacles, et al. were regular employees. On the other hand, Hyatt

maintained that they were mere project employees. Thereafter, Hyatt

dismissed Dacles and Valencia on the ground that the service contract

between Hyatt and CSC had been terminated. Petitioner union and

Hyatt were unable to settle the dispute through the grievance

procedure and agreed to elevate the issue for voluntary arbitration.

Held: Petitioner union argues that the proper remedy to assail a

decision of a VA is certiorari under Rule 65. The SC disagrees. The

decision of the VA should be appealable to the CA under Rule 43, just

like those of the quasi-judicial agencies, boards and commissions, and

consistent with the original purpose to provide a uniform procedure for

the appellate review of adjudications of all quasi-judicial entities. In the

case, the petition was filed beyond the reglementary period for filing apetition for review under Rule 43. It is elementary in remedial law that

the use of an erroneous mode of appeal is a cause for dismissal of the

petition for certiorari and it has been repeatedly stressed that a petition

for certiorari is not a substitute for a lost appeal. In any event, the VA

did not err in ruling that Dacles and Valencia were employees of CSC,

whose services may be terminated upon the expiration of the contract

between Hyatt and CSC. Well-settled is the rule that findings of fact of

administrative agencies and quasi-judicial bodies which have acquired

expertise because their jurisdiction is confined to specific matters, are

generally accorded not only great respect but even finality. They are

binding upon this Court unless there is a showing of grave abuse of

discretion or where it is clearly shown that they were arrived at

arbitrarily or in utter disregard of the evidence on record.

EXECUTION PROCEEDINGS IN VOLUNTARY ARBITRATION CASES

Compliance with decision Both parties to a voluntary arbitration

proceeding are required to comply voluntarily and faithfully with the

decision rendered therein. Such compliance must be made without

delay. After all, the parties are presumed to have freely chosen

arbitration as the mode of settlement for that particular dispute.

Enforcement of decision In case of non-compliance of the decision by

either or both parties, a motion to enforce/execute may be filed with

the VA who may issue a writ of execution requiring either the sheriff of

the NLRC or the regular courts or any public official whom the parties

may have designated in their Submission Agreement, to execute the

final decision. In the absence of the VA or, in case of his incapacity, the

motion should be field with the Labor Arbiter in the region having

jurisdiction over the workplace. The filing of the motion is without

prejudice to any other action which the aggrieved party may take

against the non-complying party such as a motion for contempt or

imposition of fines and penalties.

Pre-execution conference Within 2 working days from receipt of the

motion for the issuance of a writ of execution, the VA, or in case of his

incapacity, the Labor Arbiter before whom the motion is filed, is

required to schedule a pre-execution conference to thresh out matters

relevant to the execution.

Issuance of writ of execution Execution must be issued, as a matter of

course, upon a decision that finality dispose of the action or proceeding.

Effect of filing a petition for certiorari on the execution process Filingof a petition for certiorari with the CA or SC does not stay the execution

of the assailed decision of a VA, unless a TRO or injunction is issued by

the CA or SC pending resolution of such petition.

Article. 262-B. Cost of voluntary arbitration and Voluntary Arbitrators

fee. - The parties to a Collective Bargaining Agreement shall provide

therein a proportionate sharing scheme on the cost of voluntary

arbitration including the Voluntary Arbitrators fee. The fixing of fee of

Voluntary Arbitrators, whether shouldered wholly by the parties or

subsidized by the Special Voluntary Arbitration Fund, shall take into

account the following factors:

(a) Nature of the case;(b) Time consumed in hearing the case;(c) Professional standing of the Voluntary Arbitrator;(d) Capacity to pay of the parties; and(e) Fees provided for in the Revised Rules of Court.

Cost of Arbitration and VAs fee The parties shall provide a

proportionate sharing scheme on the cost of voluntary arbitration.

Unless the parties agree otherwise, the cost should be shared equally

by the parties. The VA is permitted to charge not only per diem fee but

also other fees like cancellation, postponement, rescheduling or

administrative fees. The parties are encouraged to set aside funds forsuch costs. In the event that said funds are not sufficient, an amount by

way of subsidy taken out of the Special Voluntary Arbitration Fund

(SVAF) may be availed of by either or both parties subject to the

guidelines issued by the DOLE Secretary.

SVAF A Special Voluntary Arbitration Fund has been established in the

NCMB to subsidize the cost of voluntary arbitration in cases involving

the interpretation and implementation of the CBA, including the

Arbitrators fees, and for such other related purposes to p romote and

develop voluntary arbitration. The NCMB shall administer the SVAF in

accordance with the guidelines it may adopt upon the recommendation

of the Tripartite Voluntary Arbitration Advisory Council, which

guidelines shall be subject to the approval of the DOLE Secretary.

Continuing funds needed for this purpose in the initial yearly amount of

P15M shall be provided in the 1989 annual general appropriations acts.

The amount of subsidy in appropriate cases shall be determined by the

NCMB in accordance with established guidelines issued by it upon the

recommendation of the Council. The Fund shall also be utilized for the

operation of the Council, the training and education of VAs, and the

Voluntary Arbitration Program.

7/28/2019 LAB REL 3

9/27

9

LUDO vs. SAORNIDO

Facts: LUDO engaged the arrastre services of CLAS for the loading and

unloading of its products. Several arrastre workers were deployed by

CLAS to perform the services. These arrastre workers were

subsequently hired as regular rank-and-file employees of LUDO every

time the latter needed additional manpower services. Said employees

thereafter joined LUDO EMPLOYEES UNION, which acted as the

exclusive bargaining agent. The LEU entered into a CBA with LUDO.

Thereafter, the union requested LUDO to include in its members period

of service the time during which they rendered arrastre services to

LUDO through the CLAS so that they could get higher benefits. LUDO

failed to act on the request. Thus, the matter was submitted for

voluntary arbitration. The parties accordingly executed a submission

agreement raising the sole issue of the date of regularization of the

workers for resolution by the VA. In its decision, the VA ruled that: (1)

the employees were engaged in activities necessary and desirable to

the business of petitioner, and (2) CLAS is a labor-only contractor of

petitioner, and declaring that the complainants shall be considered

regular employees.

Held: LUDO contends that the award of benefits which were beyond theterms of submission agreement was not proper. The SC did not agree.

The jurisdiction of the Labor Arbiter and the VA over the cases

enumerated in the Labor Code can possibly include money claims in one

form or another. Compulsory arbitration has been defined both as "the

process of settlement of labor disputes by a government agency which

has the authority to investigate and to make an award which is binding

on all the parties, and as a mode of arbitration where the parties are

compelled to accept the resolution of their dispute through arbitration

by a third party." While a VA is not part of the governmental unit or

labor departments personnel, said VA renders arbitration services

provided for under labor laws. Generally, the arbitrator is expected to

decide only those questions expressly delineated by the submission

agreement. Nevertheless, the arbitrator can assume that he has the

necessary power to make a final settlement since arbitration is the final

resort for the adjudication of disputes.

As regards the issue on prescription, the determination whether the

claim is barred by prescription is a question of fact which must be

ascertained based on the evidence, both oral and documentary,

presented by the parties before the VA. In this case, the VA found that

prescription has not as yet set in to bar the respondents claims for the

monetary benefits awarded to them. Basic is the rule that findings of

fact of administrative and quasi-judicial bodies, which have acquiredexpertise because their jurisdiction is confined to specific matters, are

generally accorded not only great respect but even finality.

STRIKES AND LOCKOUTS AND FOREIGN INVOLVEMENT

IN TRADE UNION ACTIVITIES

Article. 263. Strikes, picketing and lockouts. - (a) It is the policy of the

State to encourage free trade unionism and free collective bargaining.

(b) Workers shall have the right to engage in concerted activities for

purposes of collective bargaining or for their mutual benefit and

protection. The right of legitimate labor organizations to strike and

picket and of employers to lockout, consistent with the national

interest, shall continue to be recognized and respected. However, no

labor union may strike and no employer may declare a lockout on

grounds involving inter-union and intra-union disputes.

(c) In case of bargaining deadlocks, the duly certified or recognized

bargaining agent may file a notice of strike or the employer may file a

notice of lockout with the Ministry at least 30 day before the intended

date thereof. In cases of unfair labor practice, the period of notice

shall be 15 days and in the absence of a duly certified or recognized

bargaining agent, the notice of strike may be filed by any legitimate

labor organization in behalf of its members. However, in case of

dismissal from employment of union officers duly elected in

accordance with the union constitution and by-laws, which may

constitute union busting, where the existence of the union is

threatened, the 15-day cooling-off period shall not apply and the

union may take action immediately. (As amended by Executive Order

No. 111, December 24, 1986).

(d) The notice must be in accordance with such implementing rules

and regulations as the Minister of Labor and Employment may

promulgate.

(e) During the cooling-off period, it shall be the duty of the Ministry to

exert all efforts at mediation and conciliation to effect a voluntary

settlement. Should the dispute remain unsettled until the lapse of the

requisite number of days from the mandatory filing of the notice, the

labor union may strike or the employer may declare a lockout.

(f) A decision to declare a strike must be approved by a majority of the

total union membership in the bargaining unit concerned, obtained bysecret ballot in meetings or referenda called for that purpose. A

decision to declare a lockout must be approved by a majority of the

board of directors of the corporation or association or of the partners

in a partnership, obtained by secret ballot in a meeting called for that

purpose. The decision shall be valid for the duration of the dispute

based on substantially the same grounds considered when the strike

or lockout vote was taken. The Ministry may, at its own initiative or

upon the request of any affected party, supervise the conduct of the

secret balloting. In every case, the union or the employer shall furnish

the Ministry the results of the voting at least seven days before the

intended strike or lockout, subject to the cooling-off period herein

provided. (As amended by Batas Pambansa Bilang 130, August 21,

1981 and further amended by Executive Order No. 111, December 24,

1986).

(g) When, in his opinion, there exists a labor dispute causing or likely

to cause a strike or lockout in an industry indispensable to the

national interest, the Secretary of Labor and Employment may assume

jurisdiction over the dispute and decide it or certify the same to the

Commission for compulsory arbitration. Such assumption or

certification shall have the effect of automatically enjoining the

intended or impending strike or lockout as specified in the assumption

or certification order. If one has already taken place at the time ofassumption or certification, all striking or locked out employees shall

immediately return-to-work and the employer shall immediately

resume operations and readmit all workers under the same terms and

conditions prevailing before the strike or lockout. The Secretary of

Labor and Employment or the Commission may seek the assistance of

law enforcement agencies to ensure compliance with this provision as

well as with such orders as he may issue to enforce the same.

In line with the national concern for and the highest respect accorded

to the right of patients to life and health, strikes and lockouts in

hospitals, clinics and similar medical institutions shall, to every extent

possible, be avoided, and all serious efforts, not only by labor and

management but government as well, be exhausted to substantially

minimize, if not prevent, their adverse effects on such life and health,

through the exercise, however legitimate, by labor of its right to strike

and by management to lockout. In labor disputes adversely affecting

the continued operation of such hospitals, clinics or medical

institutions, it shall be the duty of the striking union or locking-out

employer to provide and maintain an effective skeletal workforce of

medical and other health personnel, whose movement and services

shall be unhampered and unrestricted, as are necessary to insure the

proper and adequate protection of the life and health of its patients,

7/28/2019 LAB REL 3

10/27

10

most especially emergency cases, for the duration of the strike or

lockout. In such cases, therefore, the Secretary of Labor and

Employment may immediately assume, within twenty four (24) hours

from knowledge of the occurrence of such a strike or lockout,

jurisdiction over the same or certify it to the Commission for

compulsory arbitration. For this purpose, the contending parties are

strictly enjoined to comply with such orders, prohibitions and/or

injunctions as are issued by the Secretary of Labor and Employment or

the Commission, under pain of immediate disciplinary action,

including dismissal or loss of employment status or payment by the

locking-out employer of backwages, damages and other affirmative

relief, even criminal prosecution against either or both of them.

The foregoing notwithstanding, the President of the Philippines shall

not be precluded from determining the industries that, in his opinion,

are indispensable to the national interest, and from intervening at any

time and assuming jurisdiction over any such labor dispute in order to

settle or terminate the same.

(h) Before or at any stage of the compulsory arbitration process, the

parties may opt to submit their dispute to voluntary arbitration.

(i) The Secretary of Labor and Employment, the Commission or the

voluntary arbitrator shall decide or resolve the dispute, as the case

may be. The decision of the President, the Secretary of Labor and

Employment, the Commission or the voluntary arbitrator shall be final

and executory 10 calendar days after receipt thereof by the parties.

Strike means any temporary stoppage of work by the concerted

action of employees as a result of an industrial or labor dispute; not

only concerted work stoppages but also slowdowns, mass leaves, sit-

downs, attempts to damage, destroy or sabotage plant equipment and

facilities, and similar activities.

Elements:

(1) There is a temporary stoppage of work;(2) By the concerted activity of the employees;(3) There is a labor dispute.Lockout means any temporary refusal of an employer to furnish work

as a result of an industrial or labor dispute. It consists shutdowns, mass

retrenchment and dismissals initiated by the employer. Lockout,

however, may take other forms such as the employers act of excluding

employees who are union members.

Purpose of a strike or lockout:

(1) Strike for collective bargaining and for workers mutual benefitand protection

(2) Lockoutredress employers grievances against the commission bythe certified bargaining union of ULP or to resolve a bargaining

impasse.

Picketing the act of workers in peacefully marching to and fro before

an establishment involved in a labor dispute generally accompanied by

the carrying and display of signs, placards and banners intended to

inform the public about the dispute.

While workers have the right to peaceful picketing, no person engaged

in picketing is allowed to commit any act of violence, coercion or

intimidation or obstruct the free ingress to or egress from the

employer's premises for lawful purposes, or obstruct public

thoroughfares. In the same light, no person is permitted to obstruct,

impede or interfere with, by force, violence, coercion, threats or

intimidation, any peaceful picketing by workers during any labor

controversy or in the exercise of the right to self-organization or

collective bargaining or shall aid or abet such obstruction or

interference. No employer is allowed to use or employ any person to

commit such acts nor shall any person be employed for such purpose.

Right to picket is part of the right guaranteed under the law to engage

in concerted activities for purposes of collective bargaining for their

manual benefit and protection. This right is also duly guaranteed under

the freedom of speech principle in the Constitution. It cannot be

prohibited even in the absence of ER-EE relationship.

Limitations on the right of picketing:

(1) any act of violence, coercion or intimidation is prohibited;(2) stationary picket;(3) use of means like placing objects as permanent blockade or to

effectively close points of entry or exit in company premises;

(4) prevent employees of another company which is not theiremployer, from getting in and out of its rented premises.

Note: If the picketers use foul language during the picketing, such may

not result in, or give rise to, libel or action for damages.

Picket vs. Strike

(1) Right to strike stems out of its right to self-organization. The rightto picket stems from the constitutional right of freedom of speech.

(2) The strike is collective in character. Whether it be concerted groupof employees acting together or an LLO, there is a right to strike

because not one single person can stop work. But freedom of

speech is individual in nature.

(3) Strike requires procedural requisites. In picketing, there are noprocedural preconditions.

(4) Normally, strike cannot be enjoined, although there are exceptions.Freedom of speech may be ordered or scheduled, but it cannot be

enjoined whether by the Secretary of Labor or regular courts.

Determine whether picket or strike consider totality of the

circumstances surrounding the situation

Hospitals, Clinics and Medical Institutions In line with the national

concern for and the highest respect accorded to the right of patients to

life and health, strikes and lockouts in hospitals, clinics and similar

medical institutions shall, to every extent possible, be avoided and all

serious efforts, not only by labor and management but government as

well, be exhausted to substantially minimize, if not prevent, their

adverse effect on such life and health, through the exercise, however

legitimate, by labor of its right to strike and by management to lockout.

Government employees classified into two:

(1) Employees of GOCCs without original charter (Corporation Code) covered by the Labor Code; possess and enjoy the rights to self-

organization and to strike just like any employees in the private sector.

(2) Employees of the government and its political subdivisions andinstrumentalities, including GOCCs with original charter covered by

the Civil Service Law; posses and enjoy only the right to self-

organization, but not the right to strike. If employees of the government

and GOCCs with original charter go to strike, they violate the Civil

Service Law because there is no law granting government employees

the right to strike. The right to strike is not constitutional, it is statutory.

MANILA PUBLIC SCHOOL TEACHERS vs. LAGUIO JR. Teachers left their

work, marched to Malacanang and camped outside for one month.

Their salary adjustment, which is covered by law, and the President

already signed it, was implemented. They are now contending that they

are gathering peacefully in redress or grievance as part of their

constitutional right. The SC held that from the pleaded and submitted

facts, the mass actions were, to all intents and purposes, a strike. They

constituted a concerted and unauthorized stoppage of or absence from

work. Because of their actions, and there is no law allowing to strike,

7/28/2019 LAB REL 3

11/27

11

the teachers violated the Civil Service Law. The Secretary of Education

was correct in striking them off form the roster of teachers.

BLTBCO vs. NLRC

Facts: Respondent union filed a Notice of Strike against BLTBCo on the

grounds of ULP and violation of the CBA. BLTBCo asked the Secretary of

Labor to assume jurisdiction over the dispute or to certify it to the NLRC

for compulsory arbitration. BLTBCo also moved to dismiss the notice of

strike. A copy of the certification order was served upon the NAFLU and

on the TLM-BLTBCo-NAFLU. However, it was noted in the notice of

order that union secretary Soriano refused to receive it. The officers

and members of TLM-BLTBCo-NAFLU went on strike and maintained

picket lines blocking the premises of BLTBCo's terminals. The NLRC

issued a resolution ordering the striking employees to lift their picket

and to remove all obstructions and barricades. All striking employees on

payroll were required to return to work. BLTBCo was directed to accept

them back to work. BLTBCo then caused the publication of the

resolution and called on all striking workers to return to work. Of the

some 1,730 employees who went on strike, only 1,116 reported back

for work. 17 others were later re-admitted. Subsequently, about 614,

including those who were allegedly dismissed for causes other than thestrike, filed individual complaints for illegal dismissal. Their ground was

that they were refused admission when they reported back for work.

Held: BLTBCo contends that the 190 union members who participated

in the illegal strike should not have been reinstated because they defied

the return-to-work order. The SC disagreed. 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. The contention of BLTBCo

that the respondents abandoned their position is also not acceptable.

An employee who forthwith takes steps to protest his lay-off cannot by

any logic be said to have abandoned his work. For abandonment to

constitute a valid cause for termination of employment, there must be a

deliberate, unjustified refusal of the employee to resume his

employment. This refusal must be clearly established. A worker who

joins a strike does so precisely to assert or improve the terms and

conditions of his employment. If his purpose is to abandon his work, he

would not go to the trouble of joining a strike.

BLTBCo's last point is that the NLRC should not have issued the blanket

directive for the "reinstatement of all striking employees of BLTBCo who

have not committed illegal acts." The key clause here is "who have not

committed illegal acts." The directive was not really "blanket," asBLTBCo would call it, but indeed selective. The loss of employment of

striking union members is limited to those "who knowingly participates

in the commission of illegal acts." Evidence must be presented to

substantiate the commission thereof.

The right to strike is one of the rights recognized and guaranteed by the

Constitution as an instrument of labor for its protection against

exploitation by management. By virtue of this right, the workers are

able to press their demands for better terms of employment with more

energy and persuasiveness, poising the threat to strike as their reaction

to the employer's intransigence. The strike is indeed a powerful weapon

of the working class. But precisely because of this, it must be handled

carefully, like a sensitive explosive, lest it blow up in the workers' own

hands. Thus, it must be declared only after the most thoughtful

consultation among them, conducted in the only way allowed, that is,

peacefully, and in every case conformably to reasonable regulation. Any

violation of the legal requirements, such as a defiance of a return-to-

work order in industries affected with public interest, will render the

strike illegal, to the detriment of the workers it is supposed to protect.

Different Forms of Strikes

As to nature:

(a) Legal strike for a valid purpose and conducted through meansallowed by law.

(b) Illegal strike for a purpose not recognized by law or, if for a validpurpose, it is conducted through means not sanctioned by law.

(c) Economic strike one declared to demand higher wages, overtimepay, holiday pay, vacation pay, etc.; it is for the purpose of forcing

wage or other concessions from the employer which he is not

required by law to grant.

(d) ULP or Political strike one called to protest against the employersULP enumerated in Art. 248, including gross violation of the CBA

under Art. 261, and union-busting under Art. 263 (c).

(e) Slowdown strike staged without the workers quitting their workbut by merely slackening or reducing their normal work output.

(f) Wildcat strike one declared and staged without the majorityapproval of the recognized bargaining agent; deemed to aggravate

the illegality of concerted actions for the purpose of applying the

proper penalty to those responsible for illegal work stoppages.

(g) Sit-down strike workers stop working but do not leave their placeof work.

As to coverage:(a) General strike covers and extends over a whole province or

country; the employees of various companies and industries cease

to work in sympathy with striking workers of another company.

(b) Particular strike covers a particular establishment or employer orone industry involving one union or federation.

As to purpose:

(a) Economic strike(b) ULP strikeAs to the nature of the strikers action:

(a) Partial strike unannounced work stoppages such as slowdowns,walkouts or unauthorized extension of rest periods.

(b) Sit-down strike(c) Slowdown strikeAs to the extent of the strikers action:

(a) Primary strike conducted by workers against the employerinvolving a labor dispute directly affecting them.

(b) Secondary strike staged by workers of an employer involving anissue which does not directly concern or affect their relationship

but rather, by some circumstances affecting the workers such as

when the employer persists to deal with a third person againstwhom the workers have an existing grievance.

(c) Sympathy strike strikers have no demands or grievances or labordispute of their own against their employer but nonetheless stage

the strike for the purpose of aiding, directly or indirectly, other

strikers in other establishments or companies, without necessarily

having any direct relation to the advancement of the strikers

interest.

Industrial or labor dispute includes any controversy or matter

concerning the terms and conditions of employment of the association

or representation of persons in negotiating, fixing, maintaining,

changing, or arranging the terms and conditions of employment

regardless of whether the disputants stand in the proximate relation of

employer and employee.

REQUIREMENTS OF LEGAL STRIKE

(1) Strike does not violate a law.(2) It is for a lawful purpose (valid and factual grounds).(3) It is conducted strictly in accordance with procedural requirements

of law.

(4) It must be carried out in consonance with the agreement of theparties.

7/28/2019 LAB REL 3

12/27

12

(5) If carried out with lawful methods, there must be no act ofviolence, coercion or intimidation.

(6) It must not be in violation of any injunction order.(1) STRIKE DOES NOT VIOLATE A LAWBANGALISAN vs. CA Petitioners were among the 800 public school

teachers who staged "mass actions" to dramatize their grievances. The

DepEd Secretary issued a Return-to-Work Order. Petitioners failed to

comply with said order, and charged with violation of Civil Service law.

They were placed under preventive suspension. Despite due notice,

petitioners failed to submit their answer to the complaint. The

petitioners were then found guilty as charged. Petitioners contend that

they were not on strike but were merely exercising their constitutional

right peaceably to assemble. The SC held in the absence of statute,

public employees do not have the right to engage in concerted work

stoppages for any purpose. Further, petitioners are being penalized not

because they exercised their right of peaceable assembly, but because

their actuations constituted conduct prejudicial to the best interest of

the service, punishable under the Civil Service law. It bears stressing

that suspension of public services, however temporary, will inevitably

derail services to the public, which is one of the reasons why the rightto strike is denied government employees. To grant employees of the

public sector the right to strike, there must be a clear and direct

legislative authority therefor.

SSSEA vs. CA The officers and members of SSSEA staged an illegal

strike and barricaded the entrances to the SSS Building, preventing non-

striking employees from reporting for work and SSS members from

transacting business with the SSS. It appears that the SSSEA went on

strike after the SSS failed to act on the union's demands. In recognizing

the right of government employees to organize, the legislators intended

to limit the right to the formation of unions or associations only,

without including the right to strike. Under E.O. No. 180, the employees

in the civil service are denominated as "government employees" and

that the SSS is one such GOCC with an original charter; hence, its

employees are part of the civil service and are covered by the CSC's

memorandum prohibiting strikes. This being the case, the strike staged

by the employees of the SSS was illegal.

(2) IT IS FOR A LAWFUL PURPOSETwo valid and factual grounds in support of a legal strike:

(a) Collective bargaining deadlock (Economic strike) A bargainingdeadlock is a situation where there is a failure in the collectivebargaining negotiations between the bargaining agent and the

employer, resulting in a stalemate. Despite efforts at bargaining in good

faith, the parties have failed to resolve the issues and it appears that

there are no other definite options or plans in sight to break it. There is

deadlock when there is complete blocking or stoppage in the

negotiation resulting from the action of equal and opposing forces. It is

synonymous with the word impasse which presupposes reasonable

effort at good faith bargaining on the part of both parties which,

des