Labrel Summary 1st Exam Points

8/13/2019 Labrel Summary 1st Exam Points

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LABOR RELATIONS 1ST EXAM RIGHT TO SELF-ORG/CERTIFICATION ELECTION/COLLECTIVE BARGAININGProf: FR. AUGUSTINE NAZARENO RIZADA, RESCI ANGELLI

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LABREL SUMMARYPOINTS TO REMEMBER


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NOTES FROM 2012 LABOR RELATIONS LEC 10/6/2013 6:44:00 AM

know the basics of EER

In the phils, we do not allow full SO ur union organized labor with govt sector.

basis: govt employment is not a property right.

GENERAL PRINCIPLES

--In the constitution, there is an assumption that more is given to those who have less in life to correct the imbalance

in society

--labor legis is one of the social justice thrusts of the consti

--right to form a unions is NOT a constitutional right just because its found in the consti. (not allowed: managerial

employees, govt eEE, armed forces, police, fire, jail guards)

--the one mentioned in the consti about labor is just POLICY STATEMENT and not right.

--situation: a non-employee may be accepted as member because that is his right of association; BUT he is no longer

covered in the negotiations of the Union

--ung union mentioned sa article 3 is just mere association and not the 'union' that labor code is talking about

EXAM POINTS (2013 transcript)

1. A PERSON MAY BE A MEMBER OF MORE THAN 1 LABOR ORGANIZATION. If there is as yet no exclusive

bargaining agent that has signed a union security clause, YOU CAN BE A MEMBER OF ALL THE UNIONS. If

the CBL allows it, then it is possible. However, one limitation is UNION SECURITY CLAUSE.

2. You can be a member of a labor organization for purposes of collective bargaining and another union for

purpose other than collective bargaining. (i.e. supervisor who resigned and was illegally dismissed went to

rank and file union to represent him in an illegal dismissal case ALLOWED. No more conflict of interest)3. While there is Exclusive bargaining agent, there can be another union in the bargaining unit (employees not

compelled to comply with union security clause; however, this is not done in practice because the employee

will be paying 2 union dues)

4. UNION SECURITY CLAUSE IS SUSPENDED DURING THE 60-DAY FREEDOM PERIOD.

5. BUT what is still effective is the PAYMENT OF UNION DUES. That continues because it is coterminous with

the fact of representation.

6. SIGNING IN A CONFORME SHEET IN A PETITION FOR CERTIFICATION ELECTION BEFORE THE FREEDOM

PERIOD IS NOT AN ACT OF DISLOYALTY. A union security clause is interpreted strictly against the labor

organization because it is derogatory to the right to self-organization. It is not an act of disloyalty and does

not merit expulsion from the union or termination of employment.

7. AN EMPLOYEE IS STILL A MEMBER OF THE UNION DESPITE ABSENCE FROM WORK (even without pay; EER

is not severed)


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8. Right to self-organization is a PERSONAL RIGHT. BUT although it is a personal right, it can be

SECONDARILIY ESPOUSED BY THE UNION and it is subject to redress and grievance if the union

discriminated against is vis--vis other union.

9. Homeworkers have a right to self-organization

10. Minors have the right to self organization according to the CHILD AND WELFARE CODE ( not labor code)11. NON-resident aliens that have work permits and can claim reciprocity have right to self-organization.

12. Members of cooperatives who are at the same time members of the union not allowed

13. If they resign in the cooperative membership and just remain as employee allowed.

14. HOW CAN PERSONALITY OF UNION CEASE?

a. RIGHT TO CANCEL UNION REGISTRATION through a2/3 vote of general membership in a

meeting called for the purpose given by 9481. This can be done with or without cause.

b. 246 cancel union registration with cause

i. misrepresentation/false statement/fraud in the adoption of CBL, minutes and list of

members

ii. misrepresentation/false statements/fraud in the election of officers, minutes of election

and list of votes

iii. voluntary dissolution by members

c. decertification election happens during the 60day freedom period when at least 25% of the

bargaining unit sign a petition to decertifiy a union in order to go back to a regime of individual

employer-employee relationship. THERE IS STILL A UNION BUT THERE IS NO CBA.

i. Basis is MAJORITY of the valid votes cast.

15. Inclusion of managerial employees AUTOMATIC DROPPED OUT from the list. No longer a ground fordismissing the petition for certification election.

16. Supervisory unions who have the same employer as the rank and file union MAY BELONG TO THE SAME

FEDERATION. There is no more doctrine of separation of union.

17. In the PRIVATE SECTOR voluntary recognition is made upon submission of a REQUEST for voluntary

recognition in the DOLE.

18. In the PUBLIC SECTOR it is AUTOMATIC if there is only 1 employees organization. No need for cert

election.

19. Cert election is held in the public sector only if there are more than 1 employees organization.

20. NOT ALL GOCCs with original charter is government.

21. Certification election is non-adversarial.

22. Description of the bargaining unit example: RANK AND FILE, PRODUCITON WORKERS

23. What is sought to be ascertained in the cert election is the will of the bargaining unit as to the exercise of

their right to self-organization.

a. WON they desire representation


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b. Who will represent them

i. Note: if there is already past collective bargaining history, the 1 st issue is considered

answered.

24. when the VOTES ARE EQUAL between no union and 1 labor organization STATUS QUO.

25. CERTIFIATION ELECTION IS FACT-FINDING PROCEEDING.a. THUS, it is NOT FATAL to a petition if you failed to describe the bargaining unit.

b. If the petition is not in accordance with the form and substance prescribed, its dismissal is

WITHOUT PREJUDICE TO ITS REFILING.

c. MANAGEMENT IS NOT A PARTY TO THE PROCEEDING.

i. Its right is limited only to RECEIVE A COPY OF THE PETITION FOR CERT ELECTION.

ii. It cannot intervene.

iii. But another union is the one allowed to file a motion for intervention.

26. Configuration of the bargaining unit is a matter of legitimate management interest. MANAGEMENT CAN

COMMMENT BUT IT CANNOT MOVE TO DENY PETITION FOR CE.

27. If the management has already signed a CBA with another union and there is a petition for cert election

while the CBA is still existing, MANAGEMENT DOES NOT HAVE RIGHT TO FILE MOTION TO DISMISS

PETITION. The right person to file the petition is the UNION WHOM MANAGEMENT HAS ENTERED INTO A

CBA with.

28. Since a petition for CE is non-adversarial, it is binding against the whole world. If there is only one union

who wins a CE, it bars all the other unions to file the same.

29. If a Collective bargaining agreement is enforced EXCLUSIVE FOR 5 YEARS.

a. It is only exclusive in negotiating an AGREEMENT.b. It is NOT EXCLUSIVE in REPRESENTING THE UNION or BRINGING GRIEVANCE. Any individual or

groups of individual may bring a grievance.

30. If it has not concluded a CBA, it is Binding only for 1 year (cert year rule)

31. BUT the status as exclusive bargaining representative may be overthrown within the period of 5 years

though SCHISM.

a. If you are a minority and you withdrew your allegiance from the union while the union security

clause is in effect, that is a ground for disloyalty and you may be expelled

b. But all of you will withdraw allegiance, then that is valid. It is the union who will be terminated

instead.

32. To determine if there is schism conduct REFERENDUM.

33. SIGNATURE SUPPORT

a. In UNORGANIZED No requirement for signature support. The moment the petition is

filed automatic cert election.


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b. ORGANIZED required but can be less than the percentage required; if there is 25%

signature support. Med-arbiter has no discretion to deny the petition. It is considered

as conclusive as to the will of the bargaining unit re: representation.

34. WITHDRAWAL OF UNION SUPPORT

a. Made BEFORE FILING OF PETITION FOR CE presumed voluntary

b. AFTERinvoluntary but does not affect the petition.

c. But this presumption no longer holds because there is no longer any requirement to

divulge the names of the union officers of the local chapter. Just name officers of the

national federation.

35. UNORGANIZED ESTABLISHMENT not whether the employer has no union yet or no EBA.

Reference must be as to there is yet NO EBA WITH RESPECT TO THE APPROPRIATE BU.

36. The employees of FEBTC cannot be compelled to become union members just merely because

of the union security clause and the merger agreement.

37. CASES

a. BPI V. BPI-EU (2011)

i. Taking a second look on this point, we have come to agree with Justice Brions

view that it is more in keeping with the dictates of social justice and the State

policy of according full protection to labor to deem employment contracts as

automatically assumed by the surviving corporation in a merger, even in the

absence of an express stipulation in the articles of merger or the merger plan.

ii. By upholding the automatic assumption of the non- surviving corporations

existing employment contracts by the surviving corporation in a merger, the

Court strengthens judicial protection of the right to security of tenure of

employees affected by a merger and avoids confusion regarding the status of

their various benefits which were among the chief objections of our dissenting

colleagues. However, nothing in this Resolution shall impair the right of an

employer to terminate the employment of the absorbed employees for a lawful

or authorized cause or the right of such an employee to resign, retire or

otherwise sever his employment, whether before or after the merger, subject

to existing contractual obligations.

iii. Even as we now recognize the right to continuous, unbroken employment of

workers who are absorbed into a new company pursuant to a merger, it is but

logical that their employment may be terminated for any causes provided for

under the law or in jurisprudence without violating their right to security of

tenure. [Bank of the Philippines Islands vs. BPI Employees Union-Davao

Chapter-Federation of Unions in BPI Unibank, 658 SCRA 828(2011)]


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b. BPI-EU V. BPI (2013)

i. issue in this case is whether or not the act of BPI to outsource the cashiering,

distribution and bookkeeping functions to BOMC is in conformity with the law

and the existing CBA. Particularly in dispute is the validity of the transfer of

twelve (12) former FEBTC employees to BOMC, instead of being absorbed in

BPI after the corporate merger.

ii. The Union, however, insists that jobs being outsourced to BOMC were included

in the existing bargaining unit, thus, resulting in a reduction of a number of

positions in such unit. The reduction interfered with the employees right to

self-organization because the power of a union primarily depends on its

strength in number.28

iii. It is incomprehensible how the reduction of positions in t he collective

bargaining unit interferes with the employees right to self - organization

because the employees themselves were neither transferred nor dismissed

from the service.

iv. It is to be emphasized that contracting out of services is not illegal per se . It is

an exercise of business judgment or management prerogative. Absent proof

that the management acted in a malicious or arbitrary manner, the Court will

not interfere with the exercise of judgment by an employer.32

v. sanctioned by said circular, BPI outsourced the cashiering ( i.e., cash-delivery

and deposit pick-up) and accounting requirements of its Davao City branches.

vi. the subject functions appear to be not in any way directly related to the core

activities of banks. They are functions in a processing center of BPI which does

not handle or manage deposit transactions. Clearly, the functions outsourced

are not inherent banking functions, and, thus, are well within the permissible

services under the circular.

vii. banks perform only two (2) main or basic functions deposit and loan

functions. Thus, cashiering, distribution and bookkeeping are but ancillary

functions whose outsourcing is sanctioned under CBP Circular No 1388.

viii. In one case, the Court held that it is management prerogative to farm out any

of its activities, regardless ofwhether such activity is peripheral or core in

nature. What is of primordial importance is that the service agreement does

not violate the employee's right to security of tenure and payment of benefits

to which he is entitled under the law. Furthermore, the outsourcing must not


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squarely fall under labor-only contracting where the contractor or sub-

contractor merely recruits, supplies or places workers to perform a job,

c. ABBOT V. ALCARAZ

i. While it is Abbotts management prerogative to promulgate its own company

rules and even subsequently amend them, this right equally demands that

when it does create its own policies and thereafter notify its employee of the

same, it accords upon itself the obligation to faithfully implement them.

Indeed, a contrary interpretation would entail a disharmonious relationship in

the work place for the laborer should never be mired by the uncertainty of

flimsy rules in which the latters labor rights and duties would, to some extent,

depend. In this light, while there lies due cause to terminate respondents

probationary employment for her failure to meet the standards required for

her regularization, and while it must be further pointed out that Abbott had

satisfied its statutory duty to serve a written notice of termination, the fact

that it violated its own company procedure renders the termination of

respondents employment procedurall y infirm, warranting the payment of

nominal damages.

d. STA. LUCIA V. SOLE

i. Employees in two corporations cannot be treated as a single bargaining unit

even if the businesses of the two corporations are related

ii. The inclusion in the union of disqualified employees is not among the grounds

for cancellation of registration, unless such inclusion is due to

misrepresentation, false statement or fraud under the circumstances

enumerated in Sections (a) to (c) of Article 239 of the Labor Code, and the

proper procedure is for the employer to file a petition for cancellation of

certificate of registration of such union and not to immediately commence

voluntary recognition proceedings with another labor organization The

employer may voluntarily recognize the representation status of a union in

unorganized establishments. The employer may voluntarily recognize the

representation status of a union in unorganized establishments. SLECC was

not an unorganized establishment when it voluntarily recognized SMSLEC as

its exclusive bargaining representative on 20 July 2001. CLUP-SLECC and its

Affiliates Workers Union filed a petition for certification election on 27 February

2001 and this petition remained pending as of 20 July 2001. Thus, SLECCs

voluntary recognition of SMSLEC on 20 July 2001, the subsequent negotiations


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and resulting registration of a CBA executed by SLECC and SMSLEC are void

and cannot bar CLUP- SLECCWAs present petition for certification election.

iii. Same; Same; Same; Certification Elections; In petitions for certification

election, the employer is a mere bystander and cannot oppose the petition or

appeal the Med- Arbiters decision; Exception. We find it strange that the

employer itself, SLECC, filed a motion to oppose CLUP- SLECCWAs petition for

certification election. In petitions for certification election, the employer is a

mere bystander and cannot oppose the petition or appeal the Med- Arbiters

decision. The exception to this rule, which happens when the employer is

requested to bargain collectively, is not present in the case before us.

38. If one union filed petition for CE but was dismissed because there was a problem with their

registration and in the meantime, employer entered into CBA with another union by voluntary

recognition NOT ALLOWED. There must be a certification election. The fact that there is

another union present, it means that there is more than 1 labor org in that establishment.

39. If majority of the eligible voters do not participate and there is an election FAILED ELECTION.

40. A 2nd cert election is NOT ALWAYS a run-off election.

41. REQUISITES FOR RUN-OFF:

a. Valid election before

b. 3 choices and none received majority of the valid votes cast

c. votes of the unions is at least 50% in total (NOT votes for the no union ha! VOTES FOR THE

UNION)

42. You can have certification if there is only 1 union running because in effect, there will still be 2 choices:

union A or no union.

43. POINTS ON RUN-OFF ELECTION

a. AT THE VERY LEAST, IN A RUN-OFF ELECITON, YOU NEED TO HAVE 2 UNIONS RUNNING and NO

UNION.

b. Ang madaog dapat kay ang 2 unions with the highest number of votes. It cannot be union A and

No union. That can never be.

c. Therefore, the 2 possible situations are:

i. No union wins or

ii. 2 unions go through a run-off election

44. contract bar rule cannot does not prevent a bargaining unit from asking for a referendum or plebiscite. Both

can be conducted even if there is still a CBA. (this is because the CBA is still effective; only that there is a

change in the exclusive bargaining representative)

45. 2 instances where there is NO VOLUNTARY RECOGNITION:


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a. Within 1 year after a union has been voluntarily recognized

b. If there is a petition for CE that is filed but dismissed and then there is a pending re-registration of

the same. If another union files again for voluntary recognition, pending that re-registration, the

petition for voluntary recognition cannot be granted. By that fact that there is a pending re-

registration of another union, there is already an organized establishment.

CHARTER TEST

--those with original charter (government)

--without charter(corp code; private)

EXCEPTIONS TO CHARTER TEST

(naa sila orig charter but there were not considered as govt agencies)

1. PSCAA

2. GOCC under 106-107 (i.e. GSIS made liable for the differential wages not paid by teh secu agency to the secu

guards)

GOVT CORPS (covered by CSC law)

BSP--Govt

PNRC--sui generis

Veterans federation--PUBLIC corporation

Local water districts

PAGCORPhilippine international trading corp

NOT COVERED BY GOVT

Pnoc-edc

lumanta v. nlrc and food terminal

TUCP v. national housing corp

Philippine veterans bank

--those union of workers organized for MUTUAL AID OR PROTECTION (not for CBA) is just an exercise of right of

association

; no need to establish EER.

Include outline in the laptop


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DECLARATION OF POLIY

--Policy in employment which are mala in se do not need to have prior consultation; but actual company policies that

are not mala in se REQURE prior consultation before implementation

--other policies: Policy of state regulation; non-interference of state to terms and conditions of work agreed byparties; interference only in exceptional cases

MANAGERIAL, SUPERVISORY AND RANK AND FILE

Employee--can only be a natural person and NOT a juridical s

employer--can both be natural or juridical person.

MANAGERIAL- -vested with powers to execute management policies or hire/assign/discipline employees

supervisory--Effectively recommends managerial actions

--managerial employees are pseudo employees. they act for the ER and so there are PROHIBITED to join a union. ;

violative of principles of agency and there is CONFLICT of interest

supervisory--limited right to SO; also called the BU imposed by law

BAUTISTA V. INCIONG--organizer of labor unions who was employed by the federation is an EMPLOYEE; the labor

union fed was considered an employer.

RANK AND FILE-- EE other than MSC

CONFIDENTIAL EMPLOYEE --absolute prohibition to exercise SO

REPUBLIC PLANTERS BANK V. SECRETARY--branch manager, cashier, and operations officer of bank, chief

accountant are confidential employees. they are privy to the information of management which is significant to labor

relations and such info is used in collective bargaining

SMC V. LAGUESMA

--Confidential employees are those who (1) assist in confidential capacity and (2) who formulate mgt poicies in teh

field of lab rel.

Requisite:

1. confidential relationship exist between EE and supervisor AND


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2. Supervisor must handle the prescribed responsibilities relating to labor relations.

(the 2 requisites are CUMULATIVE and both must be met)

--IMPORTANT element: employees' need to use the lab rel information; DAPAT LABOR RELATIONS INFORMATION;

thus, infor from the business standpoint i.e. financial info or technical trade secrets or merely incidental to his dutiesand knowledge is not necessary in his duties--NOT CONFIDENTIAL EMPLOYEE

--confidential employees CAN NEVER JOIN UNION by reason of doctrine of NECESSARY IMPLICATION. theya re

necessarily included in the prohibition coz they are the same as managerial employees.

SUGBUANON RURAL BANK V. LAGUESMA

--Student counselors in UIC are NOT CONFIDENTIAL EMPLOYEES. to be a confidential E, the matter in your

possession and has a duty to safeguard must be labrel related confidential infro.

LABOR-RELATIONS MATTERS:

Salaries

assets

profits and liabilities of school or employer

**they must have bearing on the bargaining process

PAYMASTER OF RANK AND FILE NOT a confidential employee

PAYMASTER OF SUPERVISORY Confidential

trade secrets/industrial secrets/chemical secrets--NOT labor relations related. it is more on industrial-related.

DISTINCITON OF MANAGERIAL AND SUPERVISORY EMPLOYEES

FRANKLIN BAKER V. TRAJANO--Distinction lies in the exercise of independent judgment. if there is use of

independent judgment and you effectively recommend --SUPERVISORY; but if you just do routinary activity--NOT

supervisory.

TEST: WON person possesses authority to act in the interest of his ER in the matters specified AND WON authority is

merely routinary or clerical in nature but requires use of independent judgment.

if the recommendatory power is subject to review and final action by the dept heads of the company, the same is not

an exercise of independent judgment as required by law.

TOYOTA MOTORS V. TIMPCLU/ DUNLOP V. SECRETARY--union which is composed of supervisory/rank and file--

PROHIBITED. it could not possess teh requisite personality to file for recognition of LLO. the union's composition is in

violation of the LC.


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AMENDMENT: 245-a: MERE INCLUSION AS MEMMBERS OF EMPLOYEES OUTSIDE TEH BU SHALL NOT BE AGROUND

FOR CANCELLATION OF UNION REGISTRATION. such ee's are deemed automatically removed from the list of

membership of the union. (RA 9481, JUNE 14, 2007)

OTHER CATEGORIES of employees based on LABOR STANDARDS (those with right to SO are part of the

RANK AND FILE category)

SECURITY GUARDS

--they can join unions vis a vis their DIRECT employers only (the security agency) and not the clients fo their

employers because there is no EER with the client and the relationship only is imposed in case there is

underpayment/non-payment of wages and other benefits. for other purposes, there is no EER.

BASIS: EO 111 and RA 6715

MERALCO V. SECRETARY--since MERALCO has its own security force, they can form a union vis a vis MERALCO; the

non-managerial security personnel are eligible to join LO of the rank and file or that of the supervisory ees depending

on their rank.

DOMESTIC HELPERS OR HOUSE HELPERS

--GR: not allowed to form a union (because they did not grout out of the industrial revolution and if they are so

allowed, it would put an impossible strain on the family living)

With the enactment of kasambahay law, do they have now the right to forma union?--they can form associations for mutual aid and protection

HOMEWORKERS

--CAN form/join/assist a union of their own choosing in accordance with section 3. DO 5 ; Feb 4, 1992

MINORS

--they CAN be members of union and CAN exercise right to SO.

--BUT they CANNOT be officers of the union.

**yellow dog contract--contract where there is a contract that you should join union and if you already have one,

you must withdraw from the same--VOID; violation of right to SO

EMPLOYEES OF CONTRACTORS-SUBCOTNRACTORS


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--they HAVE the right to SO, CBA, peaceful concerted action vis a vis their EMPLOYER

CONTRACTOR/SUBCONTRACTOR but not the indirect employer

--EXCEPTION: labor-only contracting

NERI CASE--court took judicial notice of the widespread practice in both public and private sectors of contracting out

security, janitorial and maintenance services

HYATT HOTEL--The direct employers considered by teh court is NOT the security agency but the secu head of the

hyatt hotel itself. control test used.

SINGLE EMPLOYEE WORKPLACES

--There is no prohibition for her to exercise her right to SO but she can simply affiliate with a labor federation who

will in turn, represent her in the CBA with her employer. LC no reqt of minimum of employees for the exercise of SO.

EMPLOYEES OF INTERNATIONAL ORGANIZATIONS

--CANNOT form union vis a vis their employer.

SEAFDEC V. NRC

--beyond juris of NLRC. being an intl org, it enjoys functional independence.

INTERNATIONAL CATHOLIC MIGRATION V. CALLEJA--grant of diplomatic privileges to Intl catholic migration commission and IRRI EXTENDS to immunity from application

of phil labor laws

--employees therein CANNOT join labor organizations

NON-RESIDENT ALIENS

--Labor code ONLY allows resident aliens with working permits to exercise right to SO if the reciprocity requirement is

met. (art. 269)

--aliens WORKING in the phils with valid working permits have a QUALIFIED right to self-org.

GENERAL MILING--working permit MUST BE ISSUED BY DOLE even if BOI had already granted the alien a working

visa.

RECIPROCITY REQUIREMENT--must be proven. this fact is NOT presumed.


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EMPLOYEES OF COOPERATIVES WHO ARE AT THE SAME TIME MEMBERS THEREOF

--Member-consumers who are employees of the coop CANNOT form/join/assist labor union (owner cannot bargain

with himself or with co-owners

--employees who are NOT members nor co-owners of the cooperatives CAN exercise right to SO, CB and negotiation.

(batangas v. young)

CENTRAL NEGROS ELEC COOP V. SECRETARY

--Member employee who withdraw their membership MAY join labor org (resignation is an expression of their

preference for union membership)

PRINCIPLES

1. Employees of a coop are entitled to exercise right to so EXEPT THOSE Who are members of the cooperative ;they

are considered owners and owners cannot bargain with himself or other co-owners

--BUT employee members of a coop may WITHDRAW as members of the coop to join a labor union.

EMPLOYEES OF THE CORPORATION

rule: does not apply to a STOCKHOLDER in a CORPORATION who is at the same time an employee of a corporation

of which he is a stockholder. his interest is INCHOATE. (different case when it comes to cooperatives; Sa

cooperative, you have one vote in the decision making; in corporation, you cannot usually vote because management

or bod decides)

EMPLOYEES OF GOCC WITH ORIGINAL CHARTERS

--Although written article 276 about government employees, it is merely a directive to the DOLE that they have

NOTHING TO DO with goccs with original charters

EMPLOYEES OF GOCCS WITHOUT original charters/under corporation code

-- ARIZALA V. CA--EO 111 restored tight to SO and bargain of these employees

--GISS exercises proprietary functions

--EO 180, RA 6715 granted to govt employees the right to collective bargaining EXEPT regarding terms of their

employment which are fixed by law; as to term fixed by law, they are NOT prohibited to strike to obtain changes

thereof.

NASECO V. NLRC--NASECO is a GOCC WITHOUT original charter; thus NLRC HAS JURISDICTION

BSP V. NLRC--GOCC WITH original charter and also an instrumentality of govt; covered by govt laws; BSP employees

are under CSC laws AND not by the labor code


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SAMAHANG MANGGAWA NG RIZAL PARK V. NLRC--national parks devt committee is a govt agency, under CSC laws

and not labor code. while they are ALLOWED to organize and join employees, EO 180 provides that in case of

dispute, it is the PSLMC (pub sector labor mgt council) who will hear the dispute and NOT the DOLE.

CABRERA V. NLRC--relations of personnel in NASECO is governed by the LABOR CODE, NLRC because it is organized

under the corporation code.

PAGCOR V. CA

--PAGCOR is a GOCC with original charter; thus under CSC laws

UNIQUE CASE OF WATER DISTRICTS

--Water distribution is a PROPRIETARY FUNCTION; that's why the properties of water districts CAN BE

EXPROPRIATED by the state because water districts DO NOT PERFORM govtl functions

--but WORKERS of water districts are GOVERNMENT employees.

PRINCIPLES ON GOCCS:

--GOCC WITHOUT original charter (dili govt)--covered by LABOR CODE

--WITH original charter (govt)--EO 180/CSC laws


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GOVERNMENTS RIGHT TO SO 10/6/2013 6:44:00 AM

CAN GOVT EMPLOYEES FORM UNIONS?

--with original charters (govt)--NO; they cannot form union for purposes of collective bargaining

--without original charters--under corporation code; they have the right to organize and bargain collectively with their

respective employers.

EO 180

Providing guidelines for the exercise of the right to organize govt employees and creating PSLMC

COVERAGE

--includes GOCCs with original charters

--high level employees (policy making, managerial, highly confidential) not eligible to join rank and file

--does NOT apply to members of AFP, police officers, firemen and jail guards

REGISTRATION OF EMPLOYEES ORGANIZATION

--REGISTER with both CSC and DOLE

--APPLY with BLR (DOLE) OR regional offices of dole (then transmit to BLR within 3 days from receipt)

ISSUANCE OF REGISTRATION CERTIFICATE

--issued upon approval of application

--certifies it as LEGITIMATE employees organization

--gives it the RIGHT TO REPRESENT MEMBERS

--must be JOINTLY APPROVED by the chair of CSC and SOLE

SOLE AND EXCLUSIVE EMPLOYEES REP

--APPROPRIATE organizational unit employers unit consisting of rank and file

--designated as sole and exclusive rep

VOLUNTARY RECOGNITION

--once registered and there is a showing that no other EO is registered or is seeking registration AND it has majority

support of rank and file

WHEN THERE ARE 2 OR MOR REGISTERED EO

--BLR shall upon petition order Certification election

WHAT MAY BE SUBJECT OF NEGOTIATIONS BETWEEN REO and govt auth

--terms and conditions of employment or improvements thereof EXCEPT those fixed by law


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WHAT GOVENRS THEIR CONCERTED ACTIVITIES AND STRIKES Civil service law


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EXAM POINES 2013 LECTURES 10/6/2013 6:44:00 AM

EXAM POINTS

Not all employees have right to self organization. Law EXCLUDES managerial employees.

Right to SO is statutory. It is not found in the constitution but in the labor code.

Right to SO is a privilege rightFreedom of association is constitutional right.

The right to SO also includes the right NOT TO JOIN.

YOU can only for union vis--vis your employer. (security guards can only form union with the security agency and

not the client himself whom they are rendering service to.)

VICTORIANO V. ELIZARDE HOMEWORKERS:

General rule: freedom of association gives you the right to join an organization and the right NOT to join

Exception: closed shop provision

Exception to exception: religious conviction

SALUNGA V. CIR

Facts: the employee resigned but when he knew that there was a closed shop provision, he withdrew his

resignation but the uion would no longer accept him.

General rule: Basic rules as to membership, loss and internal regulations of the union prerogative of the union.

Exception: when union entered into a closed shop provision, it is no longer a private matter but a public interest.

State has an overriding supervisory concern in the labor organization

Applied in the case: the union was obligated to accept him back. Thus, he was reinstated by the SC and theunion was made liable to pay him his backwages.

GUIJARNO V. CIR

Union has to be protected from the EMPLOYER, GOVT and LABOR OROGANIZATION.

To give the right to SO to government employees requires amendment of the constitution. UNLESS YOU DO A

FUNDAMENTAL OVERHAUL OF CHAGING THE PROVISIONS INT EH CONSTITUTION. THERE CAN BE NO LAW

GRANTING COLLECTIVE BARGAINING TO GOVERNMENT EMPLOYEES.

Who have the right to self org? commercial, industrial, agricultural, religious, charitable, medical/educational

institutions

NOT COVERED: Domestics/house helpers

A labor organization may not be exclusively for collective bargaining. It can have other purposes but the MAIN

purpose must be still for CB.

A labor organization can be at the same time a credit cooperative. It can register in CDA.


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19

An LO that does not engage in CB CAN be registered in DOLE.

LABOR ORGANIZATION in whole or in part for collective bargaining

WORKERS ASSOCIATION for mutual aid and protection

Dole registers both LO and workers associations (org for mutual aid and protection; i.e. mortuary society)

A labor organization may affiliate with a federation and becomes its affiliate. Suppose there is a provision that saysthey can only disaffiliate at a given period of time, it is NOT BINDING. The LOCAL MAY DISAFFILIATE ANYTIME.

SPECIAL FEATURES OF A LABOR ORGANIZATION

UNION SECURITY CLAUSE/CLOSED SHOP provision contractual limitation on the right to SO

It is a voluntary organization.

But there is a rule on check off

New rule on PETITION FOR CANCELLATION OF UNION REGISTRATION (with grounds) must produce SUBSTANTIAL

evidence, not only material but CONSEQUENTIAL. Must be shown that there was misrepresentation/false

statement/fraud in connection with CBL, election of officers, etc. (discrepancy must be of such number as would

change the outcome of the election of officers)

PETITION TO CANCEL REGISTRAITON (without grounds) or VOLUNTARY CANCELLATION OF REGISTRATION

Officers call the meeting of the general membership

2/3 of general membership votes to dissolve the organization

Cancellation petition on grounds provided in 247.

Apply to the BUREAU OF LABOR RELATIONS (DOLE) (made by the board of directors, attested by

president)

TYPES OF EMPLOYEES AND RIGHT TO SELF-ORGANIZATION

In the PRIVATE SECTOR

MANAGERIAL EMPLOYEES

lays down policies/ manage unit/power to ire, fire, discipline, promote, demote, transfer

Not eligible to join/assist/form LO (expressed and absolute)

Labor organization may be held liable if it is acting as employer.

However, if the managerial employee already resigned and then he joined the rank and file who

likewise REPRESENTED HIM as COUNSEL against employer ALLOWED (reason for prohibition no

longer present) and what is at stake is the RIGHT TO COUNSEL. You have right to choose whoever it is

to assist you in a case. You can choose a union.

TITLE DOES NOT MAKE THE MANAGERIAL EMPLOYEE (i.e. sanitary manager is not a managerial

employee; executive secretary) there is no use of independent judgment.


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20

SUPERVISORY EMPLOYEES

Those who in the interest of an employer exercise such authority and NOT merely clerical in nature;

requires use of INDEPENDENT JUDGMENT

EFFECTIVELY RECOMMENDS the hiring, firing and disciplining of lower employees Allowed to form union by themselves but not with rank and file

May affiliate with the same federation as that of rank and file (rank and file and supervisors union

operating within the same establishment may join in the same federation or national union)

RANK AND FILE

Has the fullness of the power of self-organization

Any employee for a definite period or not, shall beginning fro his first day of service be considered an

employee for purpose of membership in labor union.

o SITUATIONS

o Union for regular employees in relation to probationary employees

Probationary employee CANNOT demand membership but the union for regular

employees MAY ADMIT him because union is also at liberty to create its rules and

exceptions to the same.

BUT union CANNOT include the probationary employee in the benefits afforded in the

CBA.

CONFIDENTIAL EMPLOYEES 4th classification as employee in the private sector by virtue of JURISPRUDENCE.

Branch manager, assistant bank manager, accountant, ashier

No right to SO because by doctrine of NECESSARY IMPLICAITON.

NOT CONFIDENTIAL : student counselors

NOT ALL CONFIDENTIAL INFORMAITON HELD BY AN EMPLYEE RENDERS HIM A CONFIDENTIAL

EMPLOYEE. It must be information that is LABOR RELATIONS-RELATED.

o i.e bargaining, information that influences bargaining process,etc

o PAYROLL CLERK

o COST ACCOUNTATNT

NOT CONFIDENTIAL LABREL INFO: industrial secrets,


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RIGHT TO SO OF PUBLIC SECTOR 10/6/2013 6:44:00 AM

RIGHT TO SELF-ORGANIZAITON OF PUBLIC SECTOR

GOVERNMENT EMPLOYEES

governed by EO 180 covers al employees of GOCCs with original charter

Not given the right to self- organization by the constitution; unless the provision public office is a public

trust is removed in the constitution, right to SO shall really be denied to govt employees.

CHARTER TEST

Exceptions to charter test

o Philippine society for prevention of cruelty to animals (charter test only prospective in

application; just because it was made under a charter does not make it at all a govt entity.

Thus it is a private entity and COA does not have right to audit its funds)

o Veterans federation of the Philippines

o PNRC

PNOC Government

PNOC-EDC not government

BSP Government

PROHIBITED TO FORM UNION: HIGH LEVEL EMPLOYEES (policy making, managerial and highly confidential) ABSOLUTE prohibition in

forming a union AFP, police, firemen and jail guards (prohibited because by the nature of their organization, they

survive as a unit; they depend on each other to survive)

Security guards are allowed to form union vis-a-vis the security agency CANNOT FORM

EO 180

Can only enter in COLLECTIVE NEGOTIATION AGREEMENT (leaves, athletic days, etc)

EMPLOYEES ORGANIZATION LEGITIMATE employees organization (once registered)

Once elected SOLE AND EXCLUSIVE representative

WHERE TO REGISTER: in the CIVIL SERVICE COMM and DOLE

WHO OVERSEES UNION ACTIVITY IN PUBLIC SECTOR: Public sector Labor Mgt Council

PSLMC

Chairman: CSC Commissioner

Members:

o SOLE


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o S of finance

o SO DOJ

o SO DBM

JURISDICITON OVER INTRA AND INTER-UNION DISPUTES both in the public and private sector: Bureau of labor

relations of DOLE issues on election of officers and members of the board in the union is within the power of BLR

issues on who between the 2 unions must represent the employees. BLR has supervisory power of the

unions.

ALLIANCE OF GOVT WORKERS V. MINISTER OF LABOR Republic of the Philippines cannot be covered by the

general term employer. It cannot be made to pay 13 th month pay to government employees. Terms and conditions

of government employment are fixed by law and they cannot use the weapons employed in the private sector to

secure concession from their employers. (if they want increases in their compensation, GO TO CONGRESS!)


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OTHER CHARACTERS 10/6/2013 6:44:00 AM

ALIENS

ALLOWED if the alien has a working permit AND if the reciprocity requirement is met.

EMPLOYEES OF COOPERATIVE

Member of cooperative AND also an employee cannot form union But if he RESIGNS as member of cooperative and joins the rank and fi le union ALLOWED

MINORS

Employment age: 15 (for kasambahay: 13)

Allowed to join a union but CANNOT be an officer of the union

EMPLOYEES OF CONTRACTORS OR SUBCONTRACTORS

Bona fide contracting is allowed.

Labor only contracting is PROHIBITED.

BONA FIDE CONTRACTING

o Registered in ODLE

o Has sufficient capital, investments and equipment

o Employees of bona fide contracting may only form union vis a vis their employer and not the

person they are rendering services to (i.e. security guards)

LABOR ONLY CONTRACTING

o Case of PHILBANK V. NLRC the manpower agency was cancelled and the employer is Phil

bank Com. The contractual employee can exercise right to SO as against Phil Bank Com.HOMEWORKERS

POSSESSES the right to SO (Section 3, DO 5, Feb. 4, 1992)

SINGLE EMPLOYEE WORKER

Nurse receptionist of a doctor with own clinic

There is NO MINIMUM number to form a labor organization.

If you are a lone employee, just AFFILIATE WITH A FEDERATION and the federation will bargain with

the employer in your behalf.


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UNION 10/6/2013 6:44:00 AM

UNIONS

What is definitive is its PURPOSE and not its membership. Its purpose must include at least collective

bargaining.

Those AMBULANT, INTERMITTENT, SELF-EMPLOYED, RURAL WORKERS AND WITHOUT DEFINITEEMPLOYES workers association lang; only for mutual aid and protection and NOT for collective

bargaining.

Workers association CANNOT FILE PETITION FOR CERTIFICATION ELECITON; only a legitimate labor

organization.


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HOW TO FORM LABOR ORGANIZAITON 10/6/2013 6:44:00 AM

HOW TO FORM A LABOR ORGANIZATION

INDEPENDENT REGISTRATION BY PETITION OF 20% OF THE EMPLOYEES

If there are untruthful statements in the petition ground for cancellation of union registration

Grounds for cancellation must be consequential, material Remedy for refusal to register a labor organization which is compliant with requirements of the law is

MANDAMUS.

CHARTERING AND CREATION OF A LOCAL CHAPTER

The local chapter shall acquire a legal personality ONLY FOR PURPOSES OF IFLING PETITITON FOR

CERTIFICAITON ELECTION. You do not have personality for all other purposes. IT CANNOT FILE CASE

FOR AND IN BEHALF OF ITS MEMBERS.

How do you gain full personality? ORGANIZE. Adopt your own cbl, elect officers and submit papers to

dole.

Must provided proof of affiliation of at least 10 locals recognized as CBA in their respective

establishments

OTHER TERMINOLOGIES

BARGAINING REPRESENTATIVE

Could mean the exclusive bargaining agent or a live person

The person who actually talks and bargains Can be replaced

COLLECTIVE BARGAINING AGENT

Refers ONLY to the JURIDICAL PERSON and NOT the natural person.

Only refers to the union

Cannot be replaced


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REGISTRATION 10/6/2013 6:44:00 AM

POINTS ON REGISTRATION

REGISTRAITON IS NECESSARY FOR COLLECTIVE BARGAINING.

Registration in the SEC is not the same registration required by DOLE to become a legitimate labor organization

(cebu seamens association v. pura ferrer)

ONCE REGISTERED, REGISTRAITON IS NO LONGER SUBJECT TO COLLATERAL ATTACK. You must institute a

separate case.

2 ways by which a unions registration is successfully attacked

file petition for cancellation of registration of union based on 3 grounds in 246.

o Fraud/misrepresentation int eh adoption of CBL

Note: Organizational meeting

Independent registration happens before registration

Chartering of local the meeting happens after being registered

o Fraud/misrep in the election of officers

For example, 10 of those in the list were already promoted as supervisors yet they

were included as among those who voted that is still FALSIFICAITON but is NOT

MATERIAL.

o VOLUNTARY DISSOLUTION

Voting is 2/3

No grounds needed


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RIGHTS AND CONDITIONS OF MEMBERSHIP 10/6/2013 6:44:00 AM

RIGHTS AND CONDITIONS OF MEMBERSHIP

Violation of the rights/conditions NO LONGER A GROUND FOR CANCELLATION OF UNION

REGISTRAITON. It is only a ground to PENALIZE THE CULPABLE OFFICERS after due hearing and

investigation.

RIGHT AGAINST ARBITRARY/EXCESSIVE/OPRESSIVE FINE AND FORFEITURES

What determines the reasonableness of the fee is in relation to the earnings of the union member.

RIGHT TO FULL AND DETAILED REPORTS FROM OFFICERS OF ALL FINANCIAL TRANSACTIONS

RIGHT TO ELECT OFFICERS BY SECRET BALLOT

Practice now is to vote by delegation

Term of office is 5 years to coincide with term of CBA

RIGHT TO DECIDE BY SECRET BALLOT ANY QUESTION OF MAJORITY POLICY AFFECTING THE ENTIRE

MEMBERHSIP

Union dues

To strike or not to strike

Voted by MAJORITY OF THE QUORUM

CONDITION: NO person convicted of crime involving moral turpitude shall be eligible as union officer

CONDITION/PROHIBITION: No officer shall collect fees or make disbursements of money unless authorized by the

CBL

CONDITION: EVERY PAYMENT OF FES SHALL BE EVIDENCED BY RECEIPT

Signed by the officer making the collection

Entered in the record of the organization

Labor org is EXEMPT from income TAX

CONDITION: EXPENDITURES MUST BE AUTHORIZED

How?

o CBL

o Written resolution by majority of the members (majority of the quorum only)

Requires qualified notice


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RIGHT TO RECEIVE FINANCIAL REPORTS

Late submission will only be penalized and not ground for cancelation of union registration

CONDITION: PROHIBITION ON COMPENSATION OF OFFICERS OFFICERS OF Labor organization NOT PAID ANY COMPENSATION OTHER THAN SALARIES PRVOIDED

IN THEIR CBL or RESOLUTION authorized by ALL THE MEMBERS (Absolute majority)

Minutes of meeting and list of participants subject to inspection by SOLE

Necessary expenses may be reimbursed for as long as you can produce receipts

If there is anomaly with respect to compensation and reimbursement, it is a ground for impeachment

or expulsion from the organization.

RIGHT TO REQUIRE TREASURER TO RENDER FINANCIAL REPORTS

At least once a year within 30 days after CLOSE of fiscal year

At such other times as required by SIMPLE MAJORITY of members

Upon vacating office

o Requirement of audit: NO EXTERNAL AUDIT NEEDED.

o Must provided for a balance sheet and profit and loss statement

RIGHT OF INSPECTION

Express request in writing

You may copy the books of accounts and other records of financial activities at YOUR OWN EXPENSE

RULE ON SPECIAL ASSESSMENT OR EXTRAORDINARY FEES

Special return resolution

Approved by ABSOLUTE MAJORITY

Qualified notice with records of minutes of the meeting

FEES FOR NON-MANDATORY ACTIVITIES

If mandatory may collect even without resolution

If not mandatory requires INDIVIDUAL WRITEN RESOLUTION SIGNED BY EMPLOYEE

Collection for attorneys and negotiation feesrequires the resolution + individual written authorization

DUTY TO INFORM MEMBERS on MANDATORY ACTIVITIES

Regarding CBL, CBA and other labor relations system


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Note: the requirement that 30% must report on the violation is merely DIRECTORY.

Criminal and civil liabilities that may arise still with COURTS.


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RIGHTS AND CONDITIONS OF MEMBERHSIP 10/6/2013 6:44:00 AM


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10/6/2013 6:44:00 AM


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10/6/2013 6:44:00 AM


33/51

RIGHTS OF LEGITIMATE LABOR ORG 10/6/2013 6:44:00 AM

RIGHTS

Right to act as representative of its members for purposes of collective bargaining

o If you have been certified as EBA, then you can bargain. Mere registration of the union does

not give you the status to bargain with employer.

o It bargains not only for its members but also for non-members but are part of the bargainingunit

If you have registered and elected as EBA, then you can be the exclusive representative of the

employees in the appropriate bargaining unit.

WHEN EBA MAY DEMAND LATEST AUDITED FINANCIAL STATEMENT FROM EMPLOYER:

o Upon certification as EBA (within 30 days from date of receipt of request)

o During negotiation of cba

o 60 days before expiration of CBA

you may also ask for the SCHEDULES

THERE MUST BE A WRITTEN REQUEST. Otherwise, the refusal of the owner to

furnish him with financial statement shall not constitute unfair labor practice.

To own real/personal property (inherent)

To sue and be sued (inherent)

To undertake all other activities to benefit the org and its members including HOUSING,

COOPERATIVES, Other projects.

Other rules

Notwithstanding any provision to the contrary, INCOME AND PROPERTIES OF LO SHALL BE FREE FROMTAXES.

o Union dues are tax exempt

o But the building of the union that is rented out is NOT tax-exempt.

o The property must be DIRECTLY AND EXCLUSIVEDLY USED FO LAWFUL PURPOSE by the

union

EXEMPTIONS COVERED:

o Income tax

o Property tax

o Gift tax on grants/endowments/gift/donation/

o Duties and other assessments


34/51

RIGHTS OF LEGITIMATE LO 10/6/2013 6:44:00 AM

LABOR ORGANIZATION

1. You can only be a govt employee if you are eitherappointed or employed.

2. What make a labor organization are its purpose and

NOT its composition. Purpose: for collectivebargaining, in whole or in part.3. There are 2 ways to register to become a

LEGITIMATE labor organization-= 234 (independentregistration) and 234-A (chartering))

4. After being certified as a LLO, the next step isCertification Election.

5. As an LLO, you must be registered in the list of labororganizations kept by the BUREAU of labor relations.

6. However, even without CE, there is an instance whereafter registration; there is direct certification. [basis:

Article 242 (c)] here, there is VOLUNTARYRECOGNITION and the procedure that is followed iscouched in Rule 7.

TERMINOLOGIES

1. BARGAINING UNIT - group of employees sharing mutual interest

within a given employer unit comprised of all roless than all of the entire body of employees inthe employer unit

- erroneous definition because there is ALWAYS 2BARGAINING UNITS IN A GIVEN EMPLOYER(Supervisory and rank and file)

- a union does NOT represent the employees.UNION REPRSENTS A BARGAINING UNIT.

2. CANCELLATION PROCEEDINGS

-

Process leading to revocation of certificate ofregistration of the labor organization- Cancellation proceedings DO NOT PRECLUDE

conduct of certification election.3. CERTIFICAITON ELECTION

- Process of determining through secret ballot thesole and exclusive rep of the employees in anappropriate bargaining unit and to resolve the 2issues

- If organized, options are: petitioner, forcedintervenor and intervenors

- If UNORGANIZED petitioner, intervenors andNO UNION

- NOTE: during the freedom period, 25% of the

workers can file a petition for DECERTIFICATIONELECTION.4. CONSENT ELECTION

- Election voluntarily agreed upon by the parties- There is no longer controversy as to the

configuration of the bargaining unit.5. ELECTION OFFICER

- officer from BLR in the regional office authorizedto conduct the different forms of election

o Certification election

o run off electiono consent electiono referendum ando plebiscite

6. ELECITON PROCEEDINGS

- Refers to period during election starting fromopening to closing of polls INCLUDINGcounting/tabulation/consolidation of votes butEXCLUDING period of final determination ofchallenged votes and canvass thereof

7. ELIGIBLE VOTER- voter belonging to the appropriate BU

8. EXLCUSIVE BARAGAINING REPRESENTATIVE- Legitimate labor union duly recognized/certified

as sole and exclusive bargaining rep or agent inthe BU

9. BARGAINING REPRESENTATIVE- LLO or officer or agent of the LO won employed

by the employer

10. MED-ARBITER- The one who hears the petition in the BLR

11. - Refers to an enterprise where there exists a

recognized/certified sole and exclusive bargainingagent (with respect to the particular bargainingunit in that establishment)

RULE 7- VOLUNTARY RECOGNITION

1. WHEN TO FILE:a. Unorganized w/ only 1 LLO

i. Employer may voluntarily recognize therepresentation status of such unionii. Employer AND union shall submit a

notice of voluntary recognition withRegional office w/c issued the laborunions certificate of recognition or certof chartered local WITHIN 30 DAYSfrom such recognition.

2. REQUIREMENTS: notice of VR shall beaccompanied by original copy and 2 duplicate copiesof the ff. documents:

a. Joint statement under oath (of employerand union president) of VR attesting to fact

of VRb. Cert of posting of the joint statement for 15consecutive days in @ least 2 conspicuousplaces in the establishment or BU whereunion seeks to operate

c. Approximate # of employees in the BU +names of those who support VR comprising@ least a majority of the members of the BUand


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d. Statement that labor union is the ony LLOoperating w/I the BU.

All accompanying documents of the notice for VRshall be certified under oath by the employer rep ANDpresident of recognized labor union.

Note: The posting is for the purpose that if theemployees think agreement does not reflect theiragreement, they can complain to the BLR.

3. ACTION ON THE NOTICEa. If notice of VR is sufficient in form, number

and substance + no other registered laborunion Regional office (thru lab reldivision) record the fact of VR in its roster

AND notify the labor union WITHIN 10 DAYSfrom receipt of the notice

b. If insufficient in form, # and substance within same period, notify the union andadvice compliance with requirements.

c. If NONE complies within 30 days fromreceipt of advisory-> RO shall return thenotice for VR without prejudice to itsresubmission.

NOTE:i. Notice becomes final by INACTION

4. EFFECT OF RECORDING OF FACT OFVOLUNTARY RECOGNITION DIRECTCERTIFICAITON

a. union shall enjoy the rights/privileges andobligations of an existing EBA of allemployees in the BU

b. entry of VR shall BAR the filing of a petitionfor CE by any LO for 1 year from such dateof entry; upon expiration pwede na unlessa CBA between ER and VR labor union wasexecuted and registered with Regional Officein accordance with rule 17

POINTS:i. VR under this provision is binding against the

whole world; all other labor orgs areprevented to represent the workers.

j. Policy of recognition is adopted because ofbig labor federations who can just easilyform unions in local areas

k. Labor codes definition of CE is incorrect: thecorrect definition is that it is a process bywhich 2 facts are verified; WON BU wants

representation and if they want, who willrepresent them

l. Original definition of CE is erroneousbecause it assumes that BU wantsrepresentation. The right to SO include theright NOT to join. Therefore, if you are theonly labor organization proceed toelection the choices are: UNION A Or NOUNION. If the NO UNION votes win, then itwill be the individual contracts of theemployees will govern.

m. With respect to CE, the UNIONREPRESENTS THE BARGAINING UNIT NOT the employees.

n. In the entire unit of employees, there is atleast 2 bargaining units. Why? Because

Article 245 created a BU by operation oflaw the supervisors unit.

o. The determination of the EBA is NON-LITIGUOUS in nature. This was firstenunciated in the LVN case. thus, if thepetition is defective, it should not bedismissed outright.

p. However, even if non-adversarial angnature of the CE, it is technical to PREVENTfly by night labor organizations that seeksto take advantage of the endurance ofworkers.

q. FR. GUS the whole idea of VR and directcertification RUNS COUNTER TO THE VERESSSENCE OF THE RIGHT TO SO. It openthe possibility of employer simulating thechoice of the BU. I am a firm believer of theinconsistency and non-legitimacy ofrecognition.

r. If there are misrepresentations orfalsification in the petition filed it can be aground for falsification of public documentBUT the employer is afraid to convict youbecause the falsification is based on theJOINT STATEMENT made by the employerhimself. So he himself will be guilty of thecharges.

s. The representative of the bargaining is a juridical person; such that there is anothernatural person who actually sits andbargains. That person may be changedanytime.

t. The bargaining representative MAY OR NOTbe employed by the employer (becauseusually, it is not the union president whotalks; it can be a lawyer who is withauthority from the union, appointedthrough a board resolution)

RULE 8-CERTIFICATION ELECTION

1. WHO MAY FILEa. Any legitimate labor organization

i. Local/independent unionii. Federation or national union

shall not be required to disclose thenames of the locals officers andmembers but shall attach thecharter certificate it issued to thelocal

b. Employer when requested to bargaincollectively in a BU where NO registered CBAexists; employer files petition in the regionaloffice

c. 25% of the bargaining unit supporting apetition for the abolishing of the union andthe same is filed during the freedom period

NOTE: in ALL CASES(whether filed by employeror LLO) Employer NOT considered a party


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thereto w/ a concomitant right to oppose apetition for CE. Its participation is only limited to:

a. Being notified/informed of petitions ofsuch nature; and

b. Submitting list of employees during thepre-election conference should Med-

Arbiter act favorably on the petition.(employer has NO RIGHT TO FILEMOTION TO DISMISS THE PETITION. Ifthe petition if ever is dismissed, it isnever with prejudice. It MAY BEREFILED)

ANY EMPLOYEE has right to intervene forprotection of his individual right.

2. WHERE TO FILEa. Regional office which issued petitioning

unions Cert. of registration/cert. of creationof chartered local heard by MED ARBITER

b. RULESi. If 2 or more petitions filed in same

BU filed in same RO Automaticallyconsolidated

ii. 2 or more petitions filed in differentROs RO in which petition was firstfiled shall exclude all others; therest shall indorse petition to the onewhere it was first filed

iii. If workplace is on boundary of 2regional offices the workplace isthe basis of venue; the RO whichhas jurisdiction is the one with theCORRECT VENUE;

3. FORMS AND CONTENTS OF PETITIONa. Petition shall be in writingb. Verified under oath:

i. If filed by the labor org bypresident of the LO

ii. if federation in behalf of the local it shall be verified by the presidentor duly authorized rep of thefederation;

iii. if it is the employer verified bythe owner, president OR anycorporate officer authorized by theBoard of Directors

c. CONTENTS:i. name of

petitioner/address/affiliation/dateand number of CR (if federation,the national president or authorizedrep shall certify under oat as toexistence of local chapter + attachcharter cert or a certified copythereof; if local files attach thecharter cert or certified copy)

ii. name/address/nature ofEMPLOYERs business

iii. description of BUiv. approximate number of employees

in BU

v. names/address of other LLU in theBU

vi. statement of the ff:1. BU is unorganized or that

there is no registered CBAcovering employees in theBU

2. If there is CBA petitionfiled within the freedomperiod

3. If another one previouslyrecognized in a valid cert,consent or run offelection same is filedoutside the 1 year periodfrom the DATE OFRECORDING and nappeals is pending

vii. In Organized establishmentsignature of at least 25% of allemployees in the BU is attached ATTIME of filing

viii. Other relevant facts.

NOTE:a. Certification election is non adversarial;

it is FACT findingb. Failure to comply, petition is NOT

dismissed but will be given back forproperty compliance

c. VERIFICATION need to prevent fly bynight personalities that take advantageof automatic certification policy inunorganized establishments. Because ifxa lang isa sa unorganizedestablishments, med-arbiter willautomatically conduct CE. So verificationis for the purpose of limiting the abusein the policy of CE.

d. If there was non-compliance with therequirements there is no penalty forre-filing.

4. WHEN NOT TO FILE

a. CERTIFICATION YEAR RULE w/in 1year from the time a labor organization iscertified as EBA through the fact of voluntaryrecognition or a valid certification, consent orrun-off election

i. organized theres an operatingCBA or there is no CBA but there isalready a certified EBA

ii. unorganized no CBA and no EBAiii. This applies to BOTH organized and

unorganized establishments. Sowithin 1 year from and after acertification election, there can beno other CE which can beconducted.

iv. If in a CE, a union wins, within 1year, no other petition for CE canbe filed. If the no union votewin, no petition for CE can also befiled within the same period of 1


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year. This is to give both employerand workplace rest. Therefore, onlyafter 1 year can another CEcovering the same BU be allowed.

b. DEADLOCK BAR RULEi. Deadlock can happen even if the 1

year period after the certification ofthe LLO as the EBA

ii. Deadlock is shown when there isalready in BOTH or either parties,voluntary arbitration, compulsoryarbitration or the declaration ofstrike. If that happens, no petitionfor CE on that BU can beentertained.

iii. This is ONLY APPLICABLE TOORGAINZED ESTABLISHMENTS.

c. CONTRACT BAR RULE

i. For as long as there is an existingCBA, no petition for certificationelection covering the samebargaining unit can be entertainedby the med-arbiter EXCEPT duringthe 60 day freedom period.

5. RAFFLE OF THE CASEa. Who assigns the raffle: Regional director or

his duly authorized representativeb. When: upon receipt of the petitionc. What: assign case by raffle to a MED-

ARBITER.d. How: in the presence of the petitioner if he

so desirese. Petition shall be then transmitted to the

assigned med-arbiter

6. NOTICE OF PRELIMINARY CONFERENCEa. from the receipt of petition Med-arbiter

shall prepare and serve a notice ofpreliminary conference to be held WITHIN10 WORKING DAYS from such receipt

b. within 3 WORKING days from receipt petition and notice of prelim conference shallbe served to employer; notice of prelim conserved to incumbent bargaining agent (ifany)

c. service may be made by personal service,registered mail or courier service.

d. POSTING reqt: copy of the petition and

notice of PC posted within the same 3 dayperiod in at least 2 conspicuous places in theestablishment; if multiple-locationworkplaces posting made in at least 2conspicuous places in every location.

NOTE:i. Petitioning union NOT obliged to

furnish copy to employer BEFOREfiling the petition for CE

ii. It is the med-arbiter who must sendout a copy of the petition.

iii. Employer has a RIGHT to receive acopy of the CE petition. (basis:

Article 258-A) even if he is merely aby-stander.

iv. Employer is NOT a party to the casebecause there is no litigation.

v. REPRESENTATION ISSUE Organized establishmentsemployer may file a Manifestationwith the med-arbiter attachingaffidavits of employees withdrawingtheir support from the union.However, that will not be a groundfor dismissing the petition. HOLDTHE CE.

vi. If it is the FEDERATION filing notrequired to disclose names of thelocal chapters officers andmembers.

7. FORCED INTERVENORa. The forced intervenor is the incumben

bargaining agent b. He is AUTOMATICALLY one of the choices in

the CE.c. So in organized establishments, the forced

intervenor is the 1 st intervenor. If theresanother LLO, he files a motion to interveneand shall be called 2 nd intervenor and so onand so forth.

8. MOTION FOR INTERVENTIONa. Organized establishment any LLO other

than incumbent bargaining agent may fileduring the freedom period; form andcontents of the motion are the same withthe petition for CE

b. Unorganized may be filed at ANY timeprior to the decision of the Med-arbiter; formand contents are the same

c. Motion resolved in the SAME decision issuedin the petition for CE.

9. PRELIMINARY CONFERENCE; HEARINGa. Who conducts: med-arbiterb. When: within 10 days from the receipt of the

petition for CEc. What is determined:

i. BU to be represented BU means agroup of employees of a givenemployer comprised of all or lessthan all of the entire body ofemployees, which the collectiveinterests of all the EE, consistentwith equity to ER, indicate to bestsuited to serve reciprocal rights andduties of the parties under the CBprovisions of the law

ii. Contending labor unionsiii. Possibility of consent electioniv. Existence of any of the bars to CE

andv. Such other matters as may be

relevant for the final disposition ofthe case


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NOTE:i. DETERMINATION OF

APPROPRIATE BARGAINING UNIT (Belyca v. pura ferrer calleja)This is the first part in CE. The 2 nd partis: inclusion and exclusion proceedings.Further, the order to hold thecertification election is final andappealable. It disposes with finality theissue on the appropriateness of thebargaining unit.

How do you determine the appropriatebargaining unit?

4 CRITERIA:a. PRIOR COLLECTIVE

BARGAINING HISTORY whatever is the past BU, that ispresumed as the appropriateBU; this can only be changedby any intervening substantialcause carrying with itcompelling reasons, cause orconsideration which causessubstantial changes in the BU(Naftu v. mainit lumber; sanMiguel v. laguesma)

b. GLOBE DOCTRINE choiceor will of the employees as tothe precise configuration of thebargaining unit

c. MUTUALITY OF INTERSTOR COMMUNALITY OFINTEREST most importanttest of grouping; affinity andunity of the employees interestsuch as substantial similarity ofwork and duties or similarity ofcompensation and workingconditions

d. SIMILARITY OFEMPLOYMENTSTATUS whether regular orprobationary; seasonal ortemporary, etc.

iii. IMPORTANCE OF the distinction: thefactors mentioned are NOT decisivenor conclusive; however, the unionrepresents the bargaining unit andNOT the employees.

iv. SIGNIFICANCE OF BARGAININGUNIT it mentioned or described 3times:

i. Forms and contents of petition(rule 8, section 4) descriptionis tentative for it is the LOwhich proposes theconfiguration; Employer canprotest the description

ii. Order/decision of Med-arbiterto hold the CE (rule 8, section13) employer can question

the order; such order of theMA is appealable

iii. Order certifying the EBA (rule9, section 16) can still bequestioned; because if the BUcoverage is expanded to thosenot originally covered, you areviolating their right to self-organization

v. If there is inclusion or exclusion byimplication in the bargaining unit, therecan be nullification of such inclusion orexclusion;

vi. The right to self-organization cannot bewaived by the union and may bewaived only by the employee himselfbecause such is a personal right.

vii. LIMITATION of the scope of thecollective bargaining unit you cannotenter into a CBA with employees whoare not in the appropriate bargainingunit.

viii. Who decides which is the appropriatebargaining unit? THE STATE.

ix. Who decides the exclusive bargainingagent? The WORKERS. The statemerely certifies who the EBA is.

x. Nature of exclusive bargaininagent the duty of bargaining is reallyexclusive as it even excludes theemployees themselves; therefore, ifyou are part of the BU, you can nolonger assert your individual contractwith ER because the EBA is the onlyentity who can bargain for you.Whatever CBA provides, that willgovern.

xi. In UNORGANIZED establishment, thedetermination of the appropriate BU isthe 1 st issue to be determined; inORGANIZED it is no longer an issuebecause of that prior bargaininghistory.

xii. CALIFORNIA MANUFACTURYING LAGUESMA what is the configurationof the appropriate BU? There are 2:supervisors and the rank and filebargaining units.

10. GROUNDS FOR THE DENIAL OF THE PETITION: Med arbiter MAY dismiss on any of the ff. grounds:

a. Petitioning union OR nationalunion/federation not listed in the DOLEregistry of LLO OR legal personalityrevoked/cancelled with finality

i. BLR keeps the roster of bothgovernment and private laborunions

ii. You can be held liable for perjurysince the petition is verified

iii. This is the only ground whereMOTION TO DISMISS is allowed.


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b. Failure of local/federation in behalf of thelocal to submit a duly issued chartercertificate upon filing of the petition for CE;

i. The one filing the petition is thelocal or the federation for and inbehalf of the local/chapter

ii. The local will know he is the listthrough the Registry of Unions andfile of Collective agreement kept bythe BLR

iii. If it is the federation who files apetition for himself, allege that youare in the list by GIVING theregistration number.

iv. If found to be not in the list, it canbe liable for perjury

v. Benefit if it is the federation whofiles petition for and in behalf of thelocal only the president andofficers of the national union signsthe petition; locals do not have tosign an dso the employer would notknow who the members of theunion are.

vi. Benefit if it is the local who files itis the local who has the personalityto enter into a CBA, decide whatpercentage of dues collected, etc.local will have the key role innegotiation and CBA and not thenational union.

c. Filing petition BEFORE or AFTER the freedomperiod of the duly registered CBA;

i. This ONLY APPLIES to ORGANIZEDESTABLISHMENTS;

ii. The freedom period under theORIGINAL CBA is not affected byany amendment, extension orrenewal of the CBA. Therefore,even if within the 1 year period,CBA is amended, the original 60days remains. It will not bechanged just because it wasamended or extended/renewed.

d. Petition was filed WITHIN 1 YEAR from entryof VR, or a valid certification, consent or run-off election and no appeal on the RESULTSof the certification, consent or run-offelection is pending.

i. No petition must be filed within 1

year from the date of thepublication of the results of the CE

ii. This APPLIES TO BOTHORGANIZED and UNORGANIZEDestablishments.

iii. This is the ONLY prohibitive rule APPLICABLE TO UNORGANIZEDESTABLISHMENTS with respect tothe filing of the petition forcertification election.

e. Duly certified union has commenced andsustained negotiations with employer in

accord with Article 250 within the 1 yearperiod referred in section 14 (c) OR thereexists a bargaining deadlock which had beensubmitted to conciliation or arbitration orhad become the subject of a valid notice ofstrike or lockout to which an incumbent orcert. bargaining agent is a party.

i. ONLY applicable to ORGANIZEestablishments

ii. See discussion on deadlock bar rule

f. Failure to submit the 25% supportrequirement for the filing of the petition forCE

i. What is the ground is the TOTALFAILURE to submit the 25%signature support

ii. If there is 25% support med-arbiter has no discretion but toconduct the CE

iii. If less than 25% order a CE still.

g. Non-appearance of petitioner , for 2consecutive scheduled conference before MAdespite due notice

i. This rule should be changed!ii. This is not consistent with the rule

that a CE is non-litigious in nature.

h. Absence of the EER between ALL themembers of the petitioning union and theestablishment where the proposed BU issought to be represented.

i. This is decided BEFORE thedeclaration of the appropriatebargaining unit. Employer will makea manifestation.

EXAM POINTS- If the petition was defective in form, the Med-

arbiter may dismiss it but it cannot deny itsrefilling

- If the petition does not contain a description ofthe bargaining unit he can dismiss it or he cangive it back to you and ask you to put suchdescription.

- EMPLOYEES SIGNATURE WITHDRAWAL, if mao BEFORE filing of the petition for

certification election presumedvoluntary

o AFTER filing involuntary and will NOTaffect the petition.

- SIGNATURE SUPPORTo Not really important in unorganized

establishments. The moment it is filed,the discretion of the med-arbiter is onlyto order the cert election. That is thepolicy of AUTOMATIC CERTFIICAITON

o IN ORGANIZED if you have 25%signature support, that is automaticcertification election. No discretion todeny the petition.


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- General rule: NO CERTIFICIAOTN ELECTION ON A NON-WORKING DAY. It must be a workingday.

- Exception: if with approval of management and ALL contending parties agree, then the med-arbiter can conduct the agreement of parties andmake the certification election happen.

- It is not the med-arbiter who supervises theelection. It si the election officer of the BLR. Themed-arbiter is only the one who decides WON toproclaim.

11. PROHIBITED GROUNDS FOR THEDENIAL/SUSPENSION OF THE PETITION

a. INCLUSION-EXCLUSION PROCEEDINGS Byvirtue of article 245-a (RA 9481, may 25,2007), the inclusion as union members ofthe EEs outside the BU, shall NOT be aground for the cancellation of the unionregistration.

b. The purpose of the law of adding this one isto overturn previous jurisprudence whichdismissed the petitions for CE d/t inclusion ofsupervisors in the union of the rank and fileemployees

c. In exclusion inclusion proceedings, if therehas been a declaration of the appropriateBU, and order to hold the CE is issued lokat the employees embraced I the BU, if youare not there, you are automatically out.

d. What if part-time salesmen, part-timeproduction, and therefore, such employee iscovered under 2 bargaining units. What isthe solution? I DO NOT KNOW fr. Gus

12. ANCILLARY ISSUESa. ancillary means subsidiary issues b. This provision enunciates policy of the BLR

that it abhors interlocutory orders. All issuesare settled in the main case as to WON togrant the petition for CE

c. Example of Ancillary issues are:i. Issues pertaining to the existence

of EER raised before med-arbiterduring the hearing and pleadings This shall be resolved in the sameorder/decision of the MED-ARBITERgranting/denying petition for CE

ii. Validity of the petitioning unionscert. of registration or its legalpersonality as a labororganization heard/resolved by

the REGIONAL DIRECTOR in anindependent petition forcancellation of its registration (notby the med-arbiter in the petitionfor CE)

iii. Validity of registration andexecution of CBA heard/resolvedby the REGIONAL DIRECTOR in anindependent petition forcancellation of its registration (notby the med-arbiter in the petitionfor CE)

Exception: (same may be filed inthe Med-arbiter)

1. if the petitioning union isNOT LISTED in the Doleroster or

2. Existing CBA is noregistered with DOLE.

13. RELEASE OF ORDER/DECISIONa. Med-arbiter shall release his order

granting/denying petition:i. Personally to the partiesii. On agreed date and timeiii. Release made within 10 days from

the last hearing

14. APPEAL FROM THE ORDER GRANTING THECONDUCT OF CE

a. Unorganized establishmenti. It is NOT SUBJECT TO APPEAL;ii. Any issue arising therefrom may be

raised through PROTEST on theconduct and results of the CE

b. Organized establishmenti. May be APPEALED to the office of

the SECRETARYii. File memorandum of appeal within

10 days from receipt of such orderiii. Appeal shall be verified under oathiv. Memo of appeal shall sate the

grounds relied upon by theappellant with supportingarguments and evidence

15. APPEAL FROM ORDER DENYING THE PETITIONa. In both organized and unorganized appeal

to the office of Secretary within 10 daysfrom receipt of such decision.

b. Appeals in both order granting and denyingshall mean CALENDAR days.

16. WHERE TO FILE APPEALa. In the Regional office where the petition

originatedb. Copy of the memo must be furnished to the

contending unions and the employer priorto filing of the memo of appeal, there mustbe proof of service of the same to otherparties, ie. Employer and the union.

c. Within 24 hours from such receipt, Regionaldirector shall cause the transmittal thereofwith the entire records of the case to the

office of the secretary. ( usually the 24 hoursis not followed because MA usually waits forthe reply to be filed before the entire recordsare sent to the Sec. of Labors office)

17. IF NO APPEAL IS TAKEN, THEORDER/DECISION SHALL BECOME FINAL

a. When final: when no appeal is taken withinthe 10 day period

b. Who enters the finality: med-arbiterc. Where: in the records of the cased. What: med-arbiter shall cause transmittal

thereof to the Regional Director


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18. PERIOD TO FILE REPLY IF AN APPEAL IS MADEa. Who: any party to the petitionb. When: within 10 days from receipt of the

memo of appealc. Where filed: in the Office of the Secretary

19. DECISION OF THE SECRETARYa. Within 15 days from receipt of the memo of

appeal and the entire records, secretary shalldecide on the appeal

b. Filing of the memo of appeal from the orderor decision of the MA STAYS the holding ofany cert. election

c. Secretarys decision shall become F/E AFTER10 DAYS from the receipt thereof by theparties. NO MFR shall be entertained.

20. TRANSMITTAL OF RECORDS TO REGIONALOFFICE

a. When: entire records shall be remanded tothe Regional office of origin forimplementation WITHIN 48 HOURS fromnotice of receipt of decision by parties andfinality of the decision

b. Implementation of the decision shall not bestayed unless restrained by the appropriatecourt the Court of appeals.

21. EFFECTS OF CONSENT ELECTIONa. Where a petition for certification election had

been filed and upon the intercession of themed-arbiter and the parties agree to hold aconsent election the results thereof shallconstitute a bar to the holding of acertification election for 1 year from theholding of such consent election.

b. Where an appeal has been filed from theresults of the consent election the runningof the 1 year period shall be suspended untilthe decision on appeal has become F/E.

c. Where no petition for CE was filed but theparties themselves agree to hold a consentelection with the intercession of the Regionaloffice the result thereof shall constitute abar to another petition for certificationelection

NOTES:i. There is CONSENT election when:

1. Parties agree to hold Consentelection

2. No more hearing held where theemployer is notified in order toascertain the description of thebargaining unit prior to theholding of the election. If so,proceed na to the inclusion-exclusion proceedings;

3. Consent election is the ONLYtime where the 3 instances ofproviding for the description ofthe bargaining unit are the sameor has identical descriptions

ii. The definition under rule 1, book 5 section1 of Consent election is ERRONEOUS. (CEvoluntarily agreed upon by the parties, w/or w/o intervention by departmentincorrect!)

iii. Section 24 gives the CORRECT definitionbecause in a consent election: there is apetition for certification election which isfiled and the parties agree on theappropriateness of the BU and itsparameters and they give consent to theholding of the CE.

22. EFFECTS OF EARLY AGREEMENTSa. The representation case shall not

Labrel Summary 1st Exam Points

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