Lecture on Labor Rel.gmg.NEW1

LECTURE ON THE LAW ON LABOR RELATIONS

BY:

JUDGE GENER M. GITO, LL.M., D.C.L. (c)

STRUCTURE OF LECTURE

Constitutional Underpinning

Article 254 [244]. Right of employees in the public service. Employees of government corporations established under the Corporation Code shall have the right to organize and to bargain collectively with their respective employers. All other employees in the civil service shall have the right to form associations for purposes not contrary to law.

EXCEPTIONS

EXCEPTIONS

2010 Bar QuestionA, an employee of XYZ Cooperative, owns 500 shares in the cooperative. He has been asked to join the XYZ Cooperative Employees Association. He seeks your advice on whether he can join the association. What advice will you give him?

AnswerI will advice him not to join the Association of Employees. Jurisprudence tells us that employee-member of cooperative cannot join or form labour organization for the purpose of collective bargaining. A is part owner of the cooperative. Thus, he cannot bargain against himself.

TYPES OF EMPLOYEES FOR PURPOSES OF RIGHT TO SELF-ORGANIZATION

TYPES OF EMPLOYEES FOR PURPOSES OF RIGHT TO SELF-ORGANIZATIONA.Managerial Employee refers to an employee who is vested with powers, or prerogatives to lay down and execute management policies or to hire, transfer, suspend, lay off, recall, discharge, assign or discipline employees.

TYPES OF EMPLOYEES FOR PORPOSES OF RIGHT TO SELF-ORGANIZATIONB.Supervisory EmployeesSupervisory employees are those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment.

But to make one a supervisor, the power to recommend must not merely routinary or clerical in nature but must require the use of an independent judgmentDiscretionary or judgmentalIndependentEffective

Supervisory EmployeesLaguna Colleges vs. CIR, 25 SCRA 173This case analyzed the function of area supervisor for the purpose determining whether she is a supervisory employee.The recommendation submitted by area supervisor is subject to the review and final approval of the principal and such recommendation is considered with a grain of salt.Efficiency ratings of the area supervisor can be prevailed upon by the principal

TYPES OF EMPLOYEES FOR PORPOSES OF RIGHT TO SELF-ORGANIZATIONC. Rank and file Employees - All employees not falling within any of the above definitions are considered rank-and-file employees for purposes of this Book.

Importance of Classification

Ineligibility of Managerial EmployeesArticle 255 [245]. Ineligibility of managerial employees to join any labor organization; Right of Supervisory Employees. - Managerial employees are not eligible to join, assist or form any labor organization. Supervisory employees shall not be eligible for membership in the collective bargaining unit of the rank-and-file employees but may join, assist or form separate collective bargaining units and/or legitimate labor organizations of their own. The rank-and-file union and the supervisors union operating within the same establishment may join the same federation or national union.

May confidential employees join, assist or form any labor organization?

Who are confidential employees?Confidential employee employees whose nature of function is to assist in confidential capacity to, or have access to confidential matters of persons who exercise managerial function in the field of labor relations They are those 1) who assist or act in a confidential capacity 2) to persons who formulate, determine and effectuate management policies in the field of labour relations.

May confidential employees join, assist or form any labor organization?Confidential employees are not allowed to join, assist or form any labor organization.Basis: Metrolab Industries Inc. vs. Confesor, G.R. No. 108855, February 28, 1996; SMS Supevisor vs. Laguesma

Article 246. Non-abridgment of right to self-organizationArticle 256 [246]. Non-abridgment of right to self-organization. It shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with employees and workers in their exercise of the right to self-organization. Such right shall include the right to form, join, or assist labor organizations for the purpose of collective bargaining through representatives of their own choosing and to engage in lawful concerted activities for the same purpose or for their mutual aid and protection, subject to the provisions of Article 264 of this Code.

Problem No. 1In a certification election of the rank and file employees of X Co., Roberta and Carlota who are the respective executive secretaries of the President and Executive Vice President for Human Resource of X Co., desired to participate in the said certification. To realize their desire to participate in the certification election, they joined Union A.If you were the counsel for Union B, the contending union, what will you do to protect the interest of your client Union?

AnswerIf I were the counsel for Union B, I will object to the participation of Roberta and Carlota in the certification election. Roberta and Carlota, being confidential employees are prohibited from joining, assisting and forming labour organization for the purpose of collective bargaining. Moreover, they are also not allowed to join Union A as they are outside the bargaining unit of the rank and file employees; being confidential employees, they are considered members of managerial staff.

Problem No. 2Carlota is holding the position of HR Supervisor. His function are as follows: 1) conducts survey evaluation among the rank and file employees as to the performance of their section supervisors; 2) gives examinations to those rank and file employees who seek promotion; 3) tally the result of the survey evaluation and result of the examination and on the basis of the numeral result, recommend the promotion of the employees concerned.

Questions

Answer 1A. Carlota is not a supervisory employee despite her job appellation as such. Supervisory employees are those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. In the problem, the exercise of Carlotas power to recommend is routinary and clerical. She only bases her recommendation on the basis of the numerical result of the evaluation and examination. Thus, her recommendation is not discretionary and judgemental.

Answer 2B. Carlota may not join, assist or form labour organization for the purpose of collective bargaining. Carlota, by the nature of her job, is a confidential employee. She holds confidential information in the field of labour relations which makes him a confidential employee. Thus, being a confidential employee, jurisprudence prohibits her to join, assist or form labour organization.

2004 Bar QuestionMPH Labour Union is the duly certified bargaining representative of the rank and file employees of MM Park Hotel since 1970s. The CBA contained union shop security provisions. After the signing of the 2000-2005 CBA, the union demanded the resignation of Carlo, Carla, and Lito. The Hotel Management replied that it was legally impossible to comply with the demand of the Union.

2004 Bar QuestionIt appeared that Carlo, Carla and Lito were recently promoted as supervisors which is the reason why they resigned from the Union. But according to the Union, the three submitted resignations outside the freedom period. The Union further argued that the Management could not skirt away its obligation to respect and implement the union security clause by promoting the three employees. That could be viewed as rewarding employees for their disloyalty to union, said the union officers.

2004 Bar Question

AnswerWith respect to the first question, union security clause may not be used to justify the demand to dismiss the promoted employees who were formerly members of the rank and file union. As supervisors, they are no longer covered by the CBA of the employer and the rank and file union. Their resignation is not an act of disloyalty. They just obey the law which requires that they cannot be member of a union of the rank and file union.

AnswerWith respect to the second question, the Management may validly refuse the demand of the Union. As stated above, supervisory employees may not join the union of the rank and file; although they may join, assist or form a union of their own

Concepts to RememberLabour Organizations - Any union or association of employees which exists in whole or in part for the purpose of collective bargaining or of dealing with employees concerning the terms and conditions of employment [Article 219 (g)]Legitimate labour organizations LO which is registered with the DOLE [Article 219 (h)]Union LO in the private sector organized for collective bargaining and for other legitimate purposes

Applications of Concepts

How is a labour organization registered?

Federation or National UnionRegistration feeNames of its officers, their addresses, the principal address of labour organization, the minutes of organizational meeting and list of workers who participated in such organization meetingsIf the applicant union has been in existence for one or more years, copies of its annual financial reports4 copies of the constitution and by laws of the applicant, minutes its adoption or ratification and the list of the members who participated in itProof of affiliations of at least 10 locals or chapters which must be a duly recognized collective bargaining agentThe names and addresses of the companies where the local or chapter operates and list of all member.

Independent UnionRegistration feeNames of its officers, their addresses, the principal address of labor organization, the minutes of organizational meeting and list of workers who participated in such organization meetingsThe names of all its members comprising at least 20% of all the employees in the bargaining unit where it seeks to operateIf the applicant union has been in existence for one or more years, copies of its annual financial reports4 copies of the constitution and by laws of the applicant, minutes its adoption or ratification and the list of the members who participated in it

Charter UnionCharter certificate indicating the creation of local chapterThe names of chapters officers, their addressees and the principal office of the chapterThe chapters Constitution and by laws: Provided that where the Chapters Constitution and by-laws are the same, statement of such fact

Tentative Legal Personality

What are the grounds for the cancellation of LOs certificate of registration?Misrepresentation, false statement or fraud in connection with the adoption or ratification of the constitution and by laws or amendments thereof, the minutes of the ratification, and the list of members who took part in the ratificationMisrepresentation, false statement or fraud in connection with the election of officers, munutes of the election and list of votersVoluntary dissolution by the membersArticle [239] 246, (LC)

Effect of inclusion as members of employees outside the bargaining unitArticle 255 [245-A] - The inclusion as union members of employees outside the bargaining unit shall not be a ground for the cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership of said union.

2010 Bar QuestionCompany XYZ has two recognized labor unions, one for its rank-and-file employees (RFLU), and one for supervisory employees (SELU). Of late, the company instituted a restructuring program by virtue of which A, a rank-and-file employee and officer of RFLU, was promoted to a supervisory position along with four (4) other colleagues, also active union members and/or officers.

2010 Bar QuestionLabor Union KMJ, a rival labor union seeking recognition as the rank-and-file bargaining agent, filed a petition for the cancellation of the registration of RFLU on the ground that A and her colleagues have remained to be members of RFLU. Is the petition meritorious? Explain.

AnswerNO. The petition is not meritorious. Under the Article 245-A (254), the inclusion as union members of employees outside the bargaining unit shall not be a ground for the cancellation of the registration. Said employees are automatically deemed removed.

Voluntary CancellationArticle 247 (239-A). Voluntary cancellation of registration. - The registration of a legitimate labor organization may be cancelled by the organization itself: Provided, That at least two-thirds of its general membership votes, in a meeting duly called for that purpose to dissolve the organization: Provided, further, That an application to cancel registration is thereafter submitted by the board of the organization, attested to by the president thereof.

Effect of Petition for Cancellation

Problem No. 3There are 3 unions in ABC Co.: Unions A, B, and C. Union A filed a Petition for Certification Election. Sensing that Union A will win in the certification election, Union B filed a Petition for cancellation of Union As registration on the ground that some of the supervisory employees are members of said Union. On account of the filing by Union B of a petition for cancellation of Union As registration, the former subsequently filed a Motion to suspend certification election until the issue of Union As cancellation of registration is resolved.

Questions

AnswerA. The ground relied upon by Union B for the cancellation of the registration of Union A is not valid. Under the LC The inclusion as union members of employees outside the bargaining unit shall not be a ground for the cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership of said union. Besides, there are only three grounds for the cancellation of Unions registration.

AnswerB. If I were the Med-Arbiter, I will deny to Motion of Union B. The LC clearly provides that The petition for cancellation does not suspend the proceedings on certification election nor shall it prevent the filing of petition for certification election.

Rights and Conditions of Membership in Labour Organizations

Rights and Conditions of Membership in Labor OrganizationsRight over money mattersRights against unauthorized collection or unauthorized disbursementRight to vote on officers compensationMembers right against excessive feesRight to require adequate records of income and expenses and access to financial recordsRight to vote on proposed special assessments

Rights and Conditions of Membership in Labor Organizations

Points to Consider

Points to ConsiderArticle 249 [o] (241)Other than for mandatory activities under the Code, no special assessments, attorneys fees, negotiation fees or any other extraordinary fees may be checked off from any amount due to an employee without an individual written authorization duly signed by the employee. The authorization should specifically state the amount, purpose and beneficiary of the deduction;

Points to ConsiderExceptions to individual authorizationOther than for mandatory activities under the CodeAgency fees - Employees of an appropriate bargaining unit who are not members of the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such non-union members accept the benefits under the collective bargaining agreement: Provided, that the individual authorization required under Article 242, paragraph (o) of this Code shall not apply to the non-members of the recognized collective bargaining agent (Article 258 e [248])

Problem No. 4There are 2 Unions in X Co.: Unions A and B. Union A is the exclusive bargaining representatives of the rank and file employees of X Co. Union A was able to successfully forge a CBA with X Co. The execution of CBA gives each rank and file employee a total economic package of 15K a month. Union A charges all rank and file employees who are not its members a fee equivalent to the fee being paid by the members of Union A. X Co. on the basis of the request of Union A, checked off said fee from the salary of the concerned employees. Said employees protested on the ground that they have not executed written authorization to that effect.

Question

AnswerThe contention of the concerned employee is not tenable. What is being charged from them by Union A is an agency fee. Under the LC, the requirement of individual authorization for a valid check-off is not required in case of agency fee.

Rights of Legitimate Labour Organizations

Rights of Legitimate Labor Organizations

Rights of Legitimate Labor Organizations

Employee Participation in Policy and Decision MakingArticle [255] 266. Exclusive bargaining representation and workers participation in policy and decision-making. Any provision of law to the contrary notwithstanding, workers shall have the right, subject to such rules and regulations as the Secretary of Labor and Employment may promulgate, to participate in policy and decision-making processes of the establishment where they are employed insofar as said processes will directly affect their rights, benefits and welfare.

Constitutional Underpinning

A close scrutiny of the objectionable provisions of the Code reveals that they are not purely business-oriented nor do they concern the management aspect of the business of the company as in the San Miguel case. The provisions of the Code clearly have repercussions on the employee's right to security of tenure. The implementation of the provisions may result in the deprivation of an employee's means of livelihood which, as correctly pointed out by the NLRC, is a property right.

In view of these aspects of the case which border on infringement of constitutional rights, we must uphold the constitutional requirements for the protection of labor and the promotion of social justice, for these factors, according to Justice Isagani Cruz, tilt "the scales of justice when there is doubt, in favor of the worker"

Petitioner's assertion that it needed the implementation of a new Code of Discipline considering the nature of its business cannot be overemphasized. In fact, its being a local monopoly in the business demands the most stringent of measures to attain safe travel for its patrons. Nonetheless, whatever disciplinary measures are adopted cannot be properly implemented in the absence of full cooperation of the employees. Such cooperation cannot be attained if the employees are restive on account, of their being left out in the determination of cardinal and fundamental matters affecting their employment.

Exclusive Bargaining Representation

Bargaining UnitA group of employees of a given employer, comprised of all but not all or less than all the entire body of the employees, which consistent to the equity to the employer, indicate to the best suited to serve the reciprocal rights and duties of the parties under the collective bargaining provision of the law.

Appropriate Bargaining Unit

Appropriate Bargaining UnitCommunity of Interest or doctrine of substantial interestSimilarity in the scale and manner in determining earningsEmployment benefits, hours of work and other terms and conditions of employmentQualifications, skills and training.

Community of Interest or Doctrine of Substantial InterestFrequency of contract or interchange among employeesCommon supervision and determination of labor relations policyHistory of previous collective bargainingDesires of the effected employeesExtent of union organization

Determining the scope or membership of the bargaining unit is significant and far-reaching because it leads to the determination also of:

The employees who can vote in the certification election; (1) employees who can vote in the certification election; (2) the employees to be represented in bargaining with the employer; (3) the employees who will covered by resulting CBA

Importance of distinguishing CBU from the Union

Problem No. 5X Co. has 300 employees. 30 of which are supervisory employees. 50 of which are non-union members. Union A is the exclusive bargaining representative of the rank-in-file employees of X Co., being the only Union in the latter company. Union is negotiating for a collective bargaining agreement with X Co. The Union and the management could not agree on some economic package which resulted in a deadlock. The union filed a notice of strike.

QuestionsIn conducting a strike vote, who are allowed to participate?Suppose a CBA is entered into who shall ratify the CBA?Suppose there are two or more unions vying to become the exclusive bargaining representatives, who shall vote on a certification election?

Answers

Answers

Answers

METHODS OF DETERMINING BARGAINING REPRESENTATIVE

A. Voluntary RecognitionRequisites:1. Is possible only in unorganized establishment 2. Only one union is asking for recognition3. Union recognized should be the majority union

Requirements for Recording Voluntary RecognitionA joint statement under oath of voluntary recognitionCertificate of posting of the joint statement from 15 days in at least 2 conspicuous placesApproximate number of employees and the list those employees who support voluntary recognition comprising at least majority of the members of the BUStatement the Union is the only organization

B. Certification ElectionThe process of determining by secret ballot the sole and exclusive bargaining agent of the employees in an appropriate bargaining agent.

Who files petition for certification election (PCE)?It may be filed by a legitimate labor organization or employerA local or charter which has been issued a charter certificate by the National union or federationNational union or federation in behalf of its local or chapter. In this case the National union need not disclose the local/chapters officer and members.

When to file?

When to file?

When to file PCE?

Grounds for Denial of PCE

A.Non-appearanceB.Illegitimacy (unregistered or no charter)C.Absence of employment relationshipD.Election Bar Rule (12 months)E.Negotiation or Deadlock bar ruleF.Contract bar ruleG.Lack of Support

A. Non- AppearanceUnder the IRR of the Labor Code, if the petitioner does not appear for two successive conferences called by the Med-Arbiter, the petition may be dismissed, after it is shown that the petitioner was duly notified

D.O. No. 40-F-03

B. IllegitimacyOnly a legitimate labor organization can file PCE. Thus, if the petitioning union is not listed in the DOLEs list of LLO or if the registration has been cancelled with finality, these facts will authorize the Med-Arbiter to dismiss the PCE

Does the filing of petition to cancel union registration cause the suspension of PCE?

Article 245 [238-A] Effect of a petition for cancellation of registration. - A petition for cancellation of union registration shall not suspend the proceedings for certification election nor shall it prevent the filing of a petition for certification election.

C. No Employer-EmployeeThe employees right to unionize and the unions right to file PCE are founded on the existence of employer-employee relationship. Where this is absent, the petition has no legal and therefore should be dismissed.The employer, notified about the petition, may invoke and prove the absence of employer-employee relationship.

Does the Med-Arbiter or the Secretary have the authority to determine the existence of an employer-employee relationship between the parties in the PCE?

D. 12 Month Bar Rule

There can be no determination of bargaining representative within a year of the proclamation of the results of the CE. Here the results, which showed that 61% of the employees voted for new union, were certified only on February 25, 1991 but on December 1, 1991, Permex already recognized the union and entered into a CBA. This is dubious.

E. Negotiation or Deadlock Bar Rule

When is deadlock bar not applicable?

F.Contract Bar Rule

What if the PCE is filed after the 5 year term of the CBA which is already outside the freedom period?

National Congress of Unions vs. Ferrer-Calleja, (1992)The contract bar rule is applicable in a situation where the CBA was automatically extended by operation of law under Article 253 which provides:It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period or until a new agreement is reached by the parties.

Will contract bar rule bar the PCE if the CBA is entered before or within the freedom period?

N.B.

G. Lack of SupportRequirement when there is existing CBA:25% of the employees in the bargaining unitIf a petition for certification election lacks 25% support because union members has withdrawn their membership, may the petition be still granted?It depends on when the members withdrew their signatures.

Appeal of the Order Granting or Denying Petition

Problem No. 6X Co. needed 40 janitors, on top of its existing 40 janitors. Consequently, it entered into supply of service contract with Y Janitorial Service, one of the well-organized and capitalized janitorial services in the country. 40 janitors of Y Janitorial Service were assigned to X Co. The 40 janitors assigned to X Co. organized themselves into a labour Union and had it registered with the DOLE. After it was registered, it filed a Petition for Certification election in order to be certified as the exclusive bargaining representative of all the janitors of X Co.

Question

AnswerIf I were the counsel of X Co, I will file a Motion to Dismiss the Petition for Certification filed by the Union of 40 janitors. My ground in filing a Motion to Dismiss is the absence of employer-employee relationship.The employees right to unionize and the unions rights to file a petition for CE are founded on the existence of employer-employee relationship.

Problem No. 7X Co has an existing 5 year CBA with Union A which is about to expire on March 30, 2014. On January 15, 2015, X Co and Union A negotiated and eventually renewed the CBA for another 5 years starting from April 1, 2014. On March 15, 2014, Union B, a contending union, filed a Petition for Certification election. Union A filed a Motion to Dismiss on the ground of contract bar rule inasmuch as a new CBA has already been renewed by Union A and X Co.

Question

AnswerIf I were the Med-Arbiter, I will deny the Motion to Dismiss. The IRR of the Labour Code provides that the representation case shall not be adversely affected by a CBA registered before or during the last sixty (60) days of the subsisting CBA.

Question

AnswerNo. Union Bs Petition for Certification Election is barred by contract bar rule.It is provided under the LC that it shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period or until a new agreement is reached by the parties. Thus, the CBA is automatically renewed by operation of law.

Run-off ElectionA valid election took place because majority of the CBU members votedAt least three choicesNot one obtained majorityTotal union votes is at least 50%No challenged votes or election protest that would materially affect the result of election

Problem No. 8CBU has 100 members, result:Union A 20 Union B 15No Union - 5 Will there be run off election?

AnswerNo, there will not be run-off election. The following are the requirements for a run-off election: A valid election took place because majority of the CBU members voted; at least three choices; not one obtained majority; total union votes is at least 50%; no challenged votes or election protest that will materially affect the result of the election. In the given problem, there is no valid election that took place because not more than 50% of the employees participated in the certification election.

Problem No. 9CBU has 100 members, result:Everyone voted, Result:Union A 25 Union B 20No Union - 55 Will there be run off election?

AnswerNo, there will not be run-off election. The following are the requirements for a run-off election: A valid election took place because majority of the CBU members voted; at least three choices; not one obtained majority; total union votes is at least 50%; no challenged votes or election protest that will materially affect the result of the election. In the given problem, the no-union choice won as it obtained the majority.

Problem No. 10CBU has 100 members, result:80 votedUnion A 30 Union B 15Union C 20No Union - 15 Will there be run off election?

AnswerYes, there will be a run-off election. The following are the requirements for a run-off election: A valid election took place because majority of the CBU members voted; at least three choices; not one obtained majority; total union votes is at least 50%; no challenged votes or election protest that will materially affect the result of the election. All the requirements are present in the given problem. The run-off election will be between, Union A and Union B.

2009 Bar QuestionAmong the 400 regular rank and file workers of MNO co., a certification election was ordered conducted by the Med-Arbiter of the Region. The contending parties obtained the following votes:Union A 70Union B 71Union C 42Union D 33No Union 180Spoiled votes 4

Question 1There were no objections or challenges raised by any party on the results of the electionCan Union B be certified as the sole and exclusive collective bargaining agent among the rank and file workers of MNO Co considering that it garnered the highest number of votes among the contending unions? Why and why not?

AnswerNo. To be certified as bargaining agent, the required is the majority of the valid votes cast which in the given problem is 199. Since Union B got only 71 votes, it cannot be certified as the sole and exclusive bargaining agent of MNOs rank and file workers

Question 2May the management legally ask for the absolute termination of the certification election proceedings because 180 of the workers a clear plurality of the voters have chosen not to be represented by any union?

AnswerNo because 216 or the majority of the workers want to be represented by a Union as bargaining agent. Hence, a clear majority is in favor of being represented by the union. Moreover, Under the Article (258-A), 270, in all cases, whether the PCE is filed by an employer or legitimate labour organization, the employer shall not be considered a party thereto with concomitant right to oppose the petition.

Question 3If you were the duly designated election officer in this case, what would you do to effectively achieve the purpose of certification proceedings. Discuss.

AnswerI will conduct a run-off election. All the elements of a valid run-off election are present. They are: A valid election took place because majority of the CBU members voted, at least three choices; not one obtained majority; total union votes is at least 50%; no challenged votes or election protest that will alter the result of the election

Consent ElectionIf during the preliminary conference the contending unions agreed to have a consent election then Med-Arbiter shall conduct election.

Collective Bargaining Negotiation

JURISDICTIONAL PRECONDITIONS OF COLLECTIVE BARGAINING

1997 Bar QuestionKKK, a newly-formed labor union claiming to represent a majority of workers in the Company, proceeded to present a list of demands to the management for the purpose of collective bargaining. The company, declined to deal with the Union leaders, alleging that they had not as yet presented any proof of majority status. KKK then charged the Company with ULP, and declared a wild cat strike wherein the means of ingress and egress were blocked and isolated acts of destruction and violence were committed.

Question

AnswerNO. It is not ULP for the employer not to bargain with KKK. There are 3 jurisdictional preconditions for bargaining. First, is the possession of majority status; second, is proof of majority status; and third, is the demand to bargain. In the given problem, since KKK has not presented proof of majority status, the Company is not yet obligated to bargain with it.

PARTIES TO COLLECTIVE BARGAINING

PROCEDURE IN COLLECTIVE BARGAININGArticle 260 (250)

What is the Duty to Bargain Collectively? Importance of this QuestionULP:Art. 258 (g) - To violate the duty to bargain collectively as prescribed by this Code.

What is the Duty to Bargain Collectively?

Article 262 (252)

What is the Duty to Bargain Collectively? Article 263

WHAT ARE THE ULP IN BARGAINING?

Failure and Refusal to Meet and Convene

After the jurisdictional preconditions for bargaining have been complied with, it is the duty of the employer to meet and convene with the majority union. Failure or refusal on the part of the employer to meet the bargaining union amounts to ULP.

Problem No. 11The employers reason for not meeting with the bargaining union is that it filed a petition for cancellation of the bargaining unions registration. Employer contends that the petition for cancellation of union registration constitutes a prejudicial question that should be settled first before it can be compelled to bargain with the union.

Capitol Medical Center vs. Trajano (2005)

That there is a pending cancellation of registration proceedings against the respondent Union is not a bar to set in motion the mechanics of collective bargaining. If a certification election is not affected by the pendency of petition for cancellation of Union registration, so is the collective bargaining process.

Do economic exigencies justify refusal to bargain?

An employer is not guilty of refusal to bargain by adamantly rejecting the unions proposal where he is operating at a loss, as long as he continues to negotiate. But financial hardships constitute no excuse for refusing to bargain collectively.

Problem No. 12The bargaining union submitted a proposed CBA to the employer as jumpstart to collective bargaining negotiation. The employer just ignored the proposal of the union. Employer did not submit any counter-proposal despite follow up from the union. The union filed a notice of strike. The case was eventually referred to NLRC for compulsory arbitration. The NLRC ruled to adopt the unions proposed CBA.Is the ruling of NLRC correct inasmuch as CBA being a contract must be mutually agreed upon by the parties?

Kiok Loy vs. NLRC (1986)

The ruling of the NLRC is correct. While it is not obligatory upon either side of a labor controversy to precipitately accept or agree to the proposals of the other, an erring party should not be tolerated and allowed with impunity to resort to schemes feigning negotiations by going through empty gestures. In this case, the employer committed ULP by its refusal to meet and convene with the Union. Divine Word College of Tacloban vs. Secretary of Labor

Evading Mandatory Subject of Bargaining

It is the obligation of the employer and the employees representative to bargain with each other with respect to wages, hours of work and other terms and condition of employment.

What are the mandatory subjects of collective bargaining?

What is the importance of knowing the mandatory subjects of bargaining?

When is there deadlock or impasse in bargaining?A bargaining deadlock exists where good faith bargaining on the part of the parties has failed to resolve the issue and there are no definite plans for further efforts to break the deadlockIf this is so, the union may file a notice of strike and the employer a lockout. N.B.: the deadlock must be on the mandatory subjects of bargaining.

Manila Central Line Corp. vs. Union (1998)After the NCMB failed to resolve the bargaining deadlock between the parties, the union filed a petition for compulsory arbitration in the Arbitration Branch of the NLRC. Petitioner joined the Petition and the case was submitted for decision.

Manila Central Line Corp. vs. Union (1998)Although the petition is for compulsory arbitration, it can be considered a voluntary arbitration because of the willing participation of both parties. It does not matter whether the person chosen as arbitrator is a labour arbiter. There is nothing in the law that prohibits these labour arbiters from also acting as voluntary arbitrators as long as the parties agree to have him hear and decide the case.

Bad Faith in Bargaining

The issue of bad faith in bargaining can be resolved on a case to case basis. There is no hard and fast rule for its determination. Each factual circumstance should be analyzed.An employers steadfast position on a particular proposal from the union cannot, by itself, be considered bad faith in bargaining.

Instances of Bad Faith

Standard Charter Bank Employees Union vs. Confesor (2004)The union accused the bank of engaging in surface bargaining because out of 36 economic provisions, the bank made only 6 economic counterproposals. Further, as borne by the minutes of the meetings, the bank, after indicating the economic provision it had rejected, accepted, retained or open for discussion, refused to make a list of items it agreed to include in the economic package.

Standard Charter Bank Employees Union vs. Confesor (2009)The union was not able to show that the bank had done acts, both at and away of the bargaining table, which tend to show that it did not want to reach an agreement with the union, or settle the differences between it and the union. Admittedly, the parties were not able to agree and reached a deadlock. However, it should be pointed out that the duty to bargain does not compel either party to agree to a proposal or to make a concession.

When may bargaining in faith be raised?It should be raised while the bargaining is in process. If the CBA has already been executed, bargaining in bad faith can no longer be imputed against either party.REASON: All provisions in the CBA are supposed to have been jointly and mutually incorporated and agreed upon by the parties.SMTFM-UWP vs. NLRC, September 7, 1998

GROSS VIOLATION OF CBAFlagrant and/or malicious refusal to comply with economic provisions of the CBA.Thus, termination of the CBA prior to its expiration is ULP.

RATIFICATION and REGISTRATION of CBAThe agreement negotiated by the employees bargaining agent must be ratified by the majority of all the workers of the bargaining unit. The CBA must be posted for five days before ratification.This is provided for by Article 236 (231) BUT: Ratification is not needed when it is a product of an arbitral award.CBA must be registered with the DOLE, but it is not a condition for its validity.Contract bar rule will become effective from the date of registration of CBA.

Requirement for the Registration of CBACollective Bargaining AgreementStatement that the CBA was posted in two (2) conspicuous places for at least five (5) consecutive daysStatement that the CBA was ratified by the majority of the employees in the bargaining unit

AUTOMATIC RENEWAL OF CBAArticle 263 (253): x x x. It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties.

Problem No. 13The parties executed a CBA which has the duration of 3 years; from 2001 to 2004. It provided for a yearly increase in salary. In 2004, due to the case pending between the parties, a new CBA was not executed. Will there be salary increase in 2005?

AnswerYes, there will be salary increase in 2005. The mandate of Article (253), 263 of the Labor Code is very clear that there should be an automatic renewal of the CBA until new agreement is reached by the parties. The law does not provide for any exception nor qualification as to which the economic provision of the existing agreement are to retain force and effect, therefore, it must be understood as encompassing all the terms and conditions in the said agreement .

Term of the CBAArticle 264 (253-A). Terms of a collective bargaining agreement. Any Collective Bargaining Agreement that the parties may enter into shall, insofar as the representation aspect is concerned, be for a term of five (5) years. No petition questioning the majority status of the incumbent bargaining agent shall be entertained and no certification election shall be conducted by the Department of Labor and Employment outside of the sixty-day period immediately before the date of expiry of such five-year term of the Collective Bargaining Agreement.

TERM OF THE CBAArticle 264 (253-A). Terms of a collective bargaining agreement. x x x. All other provisions of the Collective Bargaining Agreement shall be renegotiated not later than three (3) years after its execution. Any agreement on such other provisions of the Collective Bargaining Agreement entered into within six (6) months from the date of expiry of the term of such other provisions as fixed in such Collective Bargaining Agreement, shall retroact to the day immediately following such date. If any such agreement is entered into beyond six months, the parties shall agree on the duration of retroactivity thereof. In case of a deadlock in the renegotiation of the Collective Bargaining Agreement, the parties may exercise their rights under this Code.

Two Periods in CBA

IllustrationThe Company and the Union forged a CBA which became effective on January 1, 2014.The economic provision shall be renegotiated not later than December 31, 2017. However, the representational provision will expire on December 31, 2019.Should the party forge a renegotiated agreement on May 1, 2017, it will retroact on January 1, 2017. However, should the parties forged an agreement August 1, 2017, the retroactivity is subject to the mutual agreement of the parties.

Problem No. 14The economic provisions of CBA will expire in 2001. The parties renewed it for three years. It thus exceeds the five (5) year term of the CBA.Are parties allowed to have an extension of three years for economic provisions of the CBA or should it be limited to two (2) years?Will the extension prevent the holding of certification election during the last 60 day of the existing CBA?

AnswerYes. The parties are allowed to agree on the period of extension of the economic provisions of the CBA and their agreement is binding as long as it is ratified by the majority of the employees of the bargaining unit. The same will however not adversely affect the right of another union to challenge the majority status of the incumbent bargaining agent within sixty (60) days before the lapse of the original five (5) year term of the CBA.San Miguel Corp. employees Union-PTGWO vs. Confesor (1996)

2009 Bar QuestionThe Company and X Union, the certified bargaining agent of the rank-and-file employees, entered into a CBA effective for the period of January 1, 2002 to December 31, 2007. For the 4th and 5th years of the CBA, the significant improvements in wages and other benefits obtained by the Union were:

2009 Bar QuestionSalary increase of P1,000 and P1,200 monthly, effective January 1, 2006 and January 1, 2007, respectively;Vacation leave and sick leave were adjusted from 12 days to 15 days annually for each employeeMedical Subsidy from P3,000 to P10,000Rice subsidy of P600 per monthBirthday Leave with pay and birthday gift of P1,500

2009 Bar QuestionAs early as October 2007, the Company and the Union started negotiations to renew the CBA. Despite mutual good intentions and earnest efforts, they could not agree. However, no union filed a petition for certification election during the freedom period. On March 30, 2008, no CBA had been concluded. Management learned that the Union would declare a deadlock on the next scheduled bargaining meeting.

2009 Bar QuestionAs expected, on April 3, 2008, the Union declared a deadlock. In the afternoon of the same day, management issued a formal announcement in writing, posted on the bulletin board, that due to the CBA expiration on December 31, 2007, all fringe benefits contained therein are considered withdrawn and can no longer be implemented, effective immediately.

Question 1

AnswerThe freedom period or the period within which the contending union may challenge the majority status of the bargaining union is the last sixty days of the five year CBA or from 60 days before the expiry date of the CBA.

Question 2

AnswerNo. The certification election filed by the contending union will not prosper. It should be pointed out that the petition for certification election was filed outside the freedom. Moreover, because of the mandated automatic renewal of the CBA under Article 253 (263) of the LC, the petition for certification election is barred by contract bar rule.

Question 3

AnswerNO. The management withdrawal of fringe benefits is illegal. Under Article 253, It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties. Thus, the CBA is automatically renewed.

May the parties agree to extend the five year term of the representation issue?NO. As the representation aspect of the CBA, it is non-extendable. It is for a term of five years. In other words, despite an agreement for a CBA with a life of more than five years, either as an original provision or by amendment, the bargaining unions status is effective only for five years and can be challenged within sixty (60) days prior to the expiration of the CBAs first 5 years.FVC Labor Union-PTWGO vs. Samahang Nagkakaisang Manggagawa ng FVC, November 27, 2009

CBA: Law Between the PartiesFACTS: Jean Legaspi, an English teacher in Petitioner clollege, requested the latter to allow her to be on study leave with grant-in aid equivalent to her 18 months salary and allowance, pursuant to Section 1, Article XIII of the CBA. However, petitioner denied her request, claiming that she is not entitled to grant-in aid under its "Policy Statement and Guidelines for Trips Abroad for Professional Growth." The petitioner reasoned out that per its policy, it would only grant study leave if the teacher would pursue a higher degree studies, not that one which only confers a certificate and not a degree.

CBA: Law Between the PartiesQUESTION: May company policy override the provision of the CBA?ANSWER: NO. The CBA is considered to be the law between the parties. Unilaterally formulated rules and policy can neither contradict nor undermine the CBA. At most, such rules are merely suppletory to the CBA. Besides, should there be doubt in the in the definition of higher studies, such doubt should be resolved in favor of labor.Holy Cross of Davao College vs. Holy Cross of Davao Faculty Union-KAMAPI, G.R. No. 156098, June 27, 2005

Interpretation of CBAArt. 1700. The relations between capital and labor are not merely contractual. They are so impressed with public interest that labor contracts must yield to the common good. Therefore, such contracts are subject to the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects.Art. 1702. In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer.

Zipping ClauseIt is a stipulation in the CBA indicating that issues that could have been negotiated upon but not contained in the CBA cannot be raised for negotiation when CBA is already in effect. In short, CBA is a complete agreement; negotiation is closed.

Persons Entitled to BenefitsWhen a collective bargaining contract is entered into by the union representing the employees and the employer, even the non-member employees are entitled to the benefits of the contract. To accord its benefits only to members of the union without any valid reason would constitute undue discrimination against non-members

Change of Bargaining Agent: Substitutionary Doctrine

The agreement is binding on the parties for the period therein specified. The employees cannot revoke the validly executed bargaining contract with their employer by the simple expedient of changing their representative.The new agent, however, may bargain for the shortening of the contractBenguet Consolidated vs. BCI Employees and Workers Union, 23 SCRA 465

No Injunction RuleArticle 265 (254). Injunction prohibited. No temporary or permanent injunction or restraining order in any case involving or growing out of labor disputes shall be issued by any court or other entity, except as otherwise provided in Articles 218 and 264 of this Code.

Article. 272 (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 those arising from the interpretation or enforcement of company personnel policies.

Article. 272 (260). - x x x xAll 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.

Article. 272 (260). Grievance machinery and voluntary arbitration. - x x x xFor 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.

What is grievance?

Grievance MachineryRefusal or failure to follow grievance procedure by either party is ULP. This is because grievance procedure is part of the continuing process of collective bargaining.As a matter of rule, before an aggrieved party may resort to the courts to enforce his individual rights under the CBA, he must exhaust all the available remedies in the CBA.

Problem No. 15Petitioner was asked by the management to explain her allegedly hostile, arrogant, disrespectful and defiant attitude. After she gave her explanation, she was dismissed. She informed the management that she is waiving her right to avail of the grievance machinery and instead submitted the case to voluntary arbitrator to which the management agreedIs her waiver to avail grievance machinery, a relinquishment of her right to avail of the aid of voluntary arbitrator?

AnswerNO. Voluntary arbitration as a mode of settling the dispute was not forced upon the respondents. The respondent agreed to it. Besides, the employees waiver of her option to submit her case to grievance machinery did not amount to relinquishing her right to avail herself of voluntary arbitration.Apalisok vs. Radio Philippines Network G.R. No. 138094, May 29, 2003

Voluntary ArbitrationArticle. 273 (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.

Voluntary ArbitrationArticle. 273 (261). Jurisdiction of Voluntary Arbitrators or panel of Voluntary Arbitrators. - x x xThe 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.

Voluntary ArbitrationArticle. 274 (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.

Voluntary Arbitrator

What is company personnel policy?Company personnel policies are the guiding principles stated in broad, long-range terms that express the philosophy of an organizations top authority regarding personnel matters. They deal with matters affecting the administration of wages, benefits, promotions, transfer and other personnel movements which are not spelled out in the CBA.

Jurisdiction of Labor ArbiterUnfair labor practicesTermination disputesClaims for wages, rates of pay, hours of work, or other terms and conditions of employment, if accompanied with a claim for reinstatementClaims for actual, moral, exemplary and other damages arising from employer-employee relationshipViolation of Article 264 and legality of strikes and lock-outsAll claims arising from employer-employee relationship exceeding 5K pesos.

Comparison of JurisdictionLABOR ARBITERCases provided in Article 217ULP, termination disputes, money claims arising from employer-employee relationLegality of strikes and lockoutsClaims of domestic helpersVOLUNTARY ARBITRATORCases provided in Article 261 and 262Unresolved grievancesAny and all labor dispute upon agreement of the parties

Does Voluntary Arbitrator have jurisdiction over termination disputes? All other disputes under Article 262 of the Labor Code may include termination disputes, provided that the agreement between the company and the union states in unequivocal language that the parties conform to the submission of termination disputes and unfair labor practice to voluntary arbitration.Vivero vs. Court of Appeals, 344 SCRA 268

Problem No. 16The Company has an existing CBA with Union A. During the existence of said CBA, a faction of Union A vaulted from it and established a new union, Union B. More than half of the members of Union A resigned and joined Union B. The Company, upon demand from Union B, withheld remitting union dues to Union A. Worse, the Company negotiated with Union B for another CBA. Union A filed a ULP case against the Company with the Labour Arbiter for violating the CBA. The companys contention is that the LA has no jurisdiction as the case should be referred to Voluntary Arbitrator.

Question

AnswerIf I were the Labour Arbiter, I will not consider the contention of the Company that I do not have jurisdiction to hear and decide the case. Not all violations of the CBA amount to ULP; only those which are gross and pertain to the CBAs economic provisions. However, gross violation per se, such as utter disregard of the very existence of the CBA itself is ULP. When the company proceeds to negotiate with the splinter union despite the existence of its valid CBA with Union A, the company indubitably abandons its recognition of the latter and terminates the entire CBA.Employees Union of Bayers vs. Bayers (2010)

ProcedureArticle. 275 (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.

ProcedureArticle. 262-A. Procedures. x x xAll 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.

ProcedureArticle. 262-A. Procedures. x x xUnless the parties agree otherwise, it shall be mandatory for the Voluntary Arbitrator or panel of Voluntary Arbitrators to render an award or decision within twenty (20) calendar days from the date of submission of the dispute to voluntary arbitration.

ProcedureArticle. 262-A. Procedures. x x xThe 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.

ProcedureArticle. 262-A. Procedures. x x xUpon 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.

Flow Chart of Procedure

Is motion for reconsideration allowed on the decision of the Voluntary Arbitrator?

Coca-Cola Bottlers Phils. vs. Coca-Cola, July 28, 2005, the Supreme Court ruled that MR is allowed. It based its ruling on Article 262 and the 1989 rules of NCMB. BUT: Section 7, Rule XIX of D.O. No. 40, series of 2003: The decision, order, resolution or award of the voluntary arbitrator or panel of voluntary arbitrators shall be final and executory after ten (10) calendar days from receipt of the copy of the award or decision by the parties and it shall not be subject of a motion for reconsideration.

Review of Decision of VRThe decision of the Voluntary Arbitrator is appealable to the Court of Appeals through a Petition for Review under Rule 43.Section 1 of which provides. This rule shall apply to appeals from judgments or final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions x x x voluntary arbitrators . . .

UNFAIR LABOR PRACTICES

Concept of Unfair Labor PracticeArticle 257 (247)Violate the constitutional right of workers and employees to self-organizationInimical to the legitimate interests of both labor and managementHinder the promotion of healthy and stable labor-management relations

Concept of Unfair Labor PracticeUnfair labor practices are not only violations of the civil rights of both labor and management but are also criminal offenses against the State.

How is the criminal aspect of ULP prosecuted?No criminal prosecution under this Title may be instituted without a final judgment finding that an unfair labor practice was committed, having been first obtained in administrative proceedings. During the pendency of such administrative proceeding, the running of the period of prescription of the criminal offense herein penalized shall be considered interrupted: Provided, however, that the final judgment in the administrative proceedings shall not be binding in the criminal case nor be considered as evidence of guilt but merely as proof of compliance of the requirements therein set forth.

Elements of ULP

ULP of Employers

Unfair Labor Practices of EmployerArticle 258 (248)

InterferenceInsular Life Assurance Employees Association vs. Insular Life Co., Ltd, G.R. No. L-25291, January 30, 1971

Company president sent a letter to strikers to abandon the strike with corresponding consideration in return

Dabuet vs. Roche (1987)The petitioners, who were all officer of the Union, wrote a letter to the management expressing the grievance of the Union regarding the dismissal of the Union President and Vice-President. At the meeting, in stead of discussing the problem, the GM berated the petitioners and called the person who wrote the letter stupid. Feeling alluded to, the lawyer of the Union, filed a case for grave slander against the GM based on the affidavit executed by the Petitioner. The GM in turn, filed a case for perjury against the petitioner. Further, the GM suspended the petitioner and later dismissed them for lost of trust and confidence.

Dabuet vs. Roche (1987)Did the management commit ULP?Yes. The GM act of dismissing the petitioners, who then constituted the remaining and entire officialdom of the Union is ULP. This is more so when the CBA in the company was about to be renegotiated. Their dismissal under the circumstances, amounted to interference with, restrain or coerce employees in the exercise of their right to engage in concerted activities for their mutual aid and protection

May ULP be committed even when the Union is yet to be organized?

Yellow Dog Contract

Contracting out

In contracting out services, is it required that the Union be first consulted?It is not required. It is within the exclusive prerogative of the management to decide on whether to contract out services or not. For as long as the employer is motivated by good faith and the contracting out is not resorted to circumvent the law or it is a result of malicious or arbitrary action, contracting out cannot be classified as ULP.Meralco vs. Quisumbing and MEWA, 1999

Runaway ShopRunaway shop refers to business relocation animated by anti-union animus. Sameness of business is not reason enough to show run-away shop to pierce the veil of separate corporate entity.

Complex Electronic Employees Association vs. NLRC, July 19, 1999

Company Union

Manifestation of Company Domination of Union:

Discrimination

Test of DiscriminationFor the purpose of determining whether or not a discharge is discriminating, it is necessary that the underlying reason for discharge be established. The fact that a lawful cause for discharge is available is not a defense where the employee is actually discharge because of his union activities. (NLRB vs. Ace Comb). If the discharge is actually motivated by a lawful reason, the fact that employee is engaged in union activities at the time will not lie against the employer and prevent him from the exercise of his business judgment to discharge an employee for cause.Cainta Catholic School vs. Union, (2006)

Valid Discrimination

Union Security Agreements

Union Security Agreement

Union Security Agreement

Union Security Agreement

Union Security Agreement

Exceptions to Closed Shop

BPI vs. BPI Employees Union (2010)New employees falling within the bargaining unit as defined in Article I of this Agreement, who may hereafter be regularly employed by the Bank shall, within thirty (30) days after they become regular employees, join the Union as a condition of their continued employment. It is understood that membership in good standing in the Union is a condition of their continued employment with the Bank.

BPI vs. BPI Employees Union (2010)

How does union security clause apply in merged corporation? Are the employees of the absorbed corporations required to join the union? Can they be considered as new employees of the surviving corporation?

BPI vs. BPI Employees Union (2010)Section 2, Article II of the CBA is silent as to how one becomes a regular employee of the BPI for the first time. There is nothing in the said provision which requires that a new regular employee first undergo a temporary or probationary status before being deemed as such under the union shop clause of the CBA.

BPI vs. BPI Employees Union (2010)Petitioner insists that the term new employees, as the same is used in the Union Shop Clause of the CBA at issue, refers only to employees hired by BPI as non-regular employees who later qualify for regular employment and become regular employees, and not those who, as a legal consequence of a merger, are allegedly automatically deemed regular employees of BPI. However, the CBA does not make a distinction as to how a regular employee attains such a status. Moreover, there is nothing in the Corporation Law and the merger agreement mandating the automatic employment as regular employees by the surviving corporation in the merger.

BPI vs. BPI Employees Union (2010)What is indubitable in from the Union Shop Clause is that upon the effectivity of the CBA, petitioners new regular employees, regardless of the manner by which they became employees of BPI are required to join the Union as a condition of their continued employment.

Discrimination for Testimony

Discrimination for TestimonyWill it cover refusal to testify?Yes.Mebeza vs. NLRC (1997)

Violation of the Duty to Bargain

Paid Negotiation

Violation of CBA(i) To violate a collective bargaining agreement

Who is liable?

Problem No. 17Carlito filed a collection suit against Luis, a friend of Lito, Carlitos employer. Rowena, Carlitos co-employee testified in favor of Carlito. This infuriated Lito. Consequently, Lito suspended Rowena for testifying in favour of Carlito.Is Lito guilty of ULP?

AnswerNO. Carlito is not guilty of ULP. To be liable of ULP for discriminating for giving testimony the testimony must be related to the provision of the Labour Code. The language of the LC speaks of testimony under the Code. Thus, if the testimony has nothing to do with the provisions of the LC, the employers may be liable for anything but not ULP.

Unfair Practices of Labor Organization[Article 259](a) To restrain or coerce employees in the exercise of their right to self-organization. However, a labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of membership.

Unfair Practices of Labor Organization(b) To cause or attempt to cause an employer to discriminate against an employee, including discrimination against an employee with respect to whom membership in such organization has been denied or to terminate an employee on any ground other than the usual terms and conditions under which membership or continuation of membership is made available to other members

Unfair Practices of Labor Organization(c) To violate the duty, or refuse to bargain collectively with the employer, provided it is the representative of the employees

Unfair Practices of Labor Organization(d) To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other things of value, in the nature of an exaction, for services which are not performed or not to be performed, including the demand for fee for union negotiations.

Unfair Practices of Labor Organization(e) To ask for or accept negotiation or attorneys fees from employers as part of the settlement of any issue in collective bargaining or any other dispute

Unfair Practices of Labor Organization(f) To violate a collective bargaining agreement.

Who will be Liable?Only officers, members of the governing boards, representatives or agents or members of labour association or organizations who have actually participated authorized or ratified unfair labour practices shall be criminally liable.

STRIKES AND LOCK-OUTS

Constitutional UnderpinningArticle XIII, Section 3It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.

STRIKETemporary stoppage of work by concerted action of the employees as a result of labour and industrial disputeArticle 219 (o)

LABOR DISPUTEIt includes any controversy or matter concerning terms and conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee. [Article 219(l)]

Employees with no labour dispute with their employer but who refuses to work on work day to join a Welga ng Bayan commit an illegal work stoppage.Biflex Phils., Inc., Labor Union, et.al., vs. Biflex Industrial, 511 SCRA 247

Not all labour dispute may become the basis of strike or lock-outThe right of legitimate labour organizations to strike and picket and of employers to lockout, consistent with the national interest, shall continue to be recognized and respected. However, no labour union may strike and no employer may declare a lockout on grounds involving inter-union and intra-union disputes.Article 277 (b)

Who May Strike/Lock-Out?StrikeBargaining DeadlockExclusive bargaining representativeUnfair Labour PracticeLegitimate Labour OrganizationExclusive bargaining representatives Lock-Out

Employer

6 Factors Effecting the Legality of Strike

1. Contrary to Specific Provision of Law

Social Security System Employees Association (SSSEA) vs. CA, 175 SCRA 686Bangalisan vs. CA, July 31, 1997Public employees are denied the right to strike or engage in stoppage against public employer. The right of the sovereign to prohibit strikes or work stoppages by public employees was clearly recognized by common law.

2. Violate Specific Requirement of LawProcedural RequirementsFiling of Notice of StrikeObservance of Cooling-Off PeriodTaking of Strike VoteObservance of Seven Day Strike-Vote-Report Period.

Notice of StrikeThe notice shall state, among others, the names and addresses of the employer and the union involved, the nature of the industry to which the employer belongs, the number of union members and of the workers in the bargaining unit, and such other relevant data as may facilitate the settlement of the dispute, such as a brief statement or enumeration of all pending labour disputes involving the same parties.

Notice of StrikeIn cases of bargaining deadlocks, the notice shall, as far as practicable, further state the unresolved issues in the bargaining negotiations and be accompanied by the written proposals of the union, the counter-proposals of the employer and the proof of a request for conference to settle the differences. In cases of unfair labour practices, the notice shall, as far as practicable, state the acts complained of and the efforts taken to resolve the dispute amicably.

Who files the Notice of Strike?Only a legitimate labour organization can legally hold a strike.If the reason for intended strike is ULP, notice should be filed by the LLO or certified bargaining agent.If bargaining deadlock, only the certified bargaining agent can file notice of strike

Cooling-Off Period

Union busting as ground

Union busting as groundArticle 264: No labour organization shall declare strike..without first having a filed a noticeor without the necessary strike vote having first obtained and reported.

Strike Vote

The failure of the union to comply with the requirement of the giving of notice to NCMB at least 24 hours prior to the holding of a strike vote will make render the subsequent strike staged by the union illegal.

Capitol Medical Centre vs. NLRC, April 26, 2005

Strike Vote Report

Should the strike vote be taken within or outside the cooling-off period, it shall be counted from the day following the expiration of the cooling off-period.

Sukhotai Cuisine vs. CA, July 17, 2006

PROCEDURAL REQUIREMENTS ARE MANDATORY; NON-OBSERVANCE MAKES THE STRIKE ILLEGAL

No labour organization or employer shall declare a strike or lockout without first having bargained collectively in accordance with Title VII of this Book or without first having filed the notice required in the preceding Article or without the necessary strike or lockout vote first having been obtained and reported to the Ministry.

Article (264) (278) (a)

Other reasons that may cause the illegality of strike?

What is preventive mediation?Mediation is a process of resolving disputes with the aid of a neutral person the mediator who helps the parties identify issues and develop proposals to resolve disputes.Although the LC does not name preventive mediation, the NCMB manual enunciates it as a remedy. The remedy of preventive mediation is already jurisprudentially accepted.

3. Declared for Unlawful Purpose

Non-Strikable Issues

ULP Strike in Good FaithTwo Test in Determining the Existence of ULPObjectively, when strike is declared in protest of ULP which is found to have been actually committed.Subjectively, when strike is declared in protest to what the union believed to be ULP committed by the employer.

We have ruled in several cases that a strike may be considered legal when the union believed that the respondent company committed unfair labour acts and the circumstance warranted such belief in good faith although subsequently such allegation of ULP are found not true.Peoples Industrial and Commercial Employees and Workers Org. vs. Peoples Industrial and Commercial Corp., March 15, 1982

Do procedural requirements apply even to ULP Strike in good faith? Even if the union acted in good faith in the belief that the company was committing an unfair labour practice, if no notice of strike and strike vote were conducted, the said strike is illegal. National Federation of Labour, et.al., vs. NLRC, et. al., December 15, 1997

4. Employs Unlawful Means

Employs unlawful means

5. Violation of Existing InjunctionWhen, in his opinion, there exists a labour dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labour and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration.Article 263, 277 (g)

Violation of Existing InjunctionThe 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 labour dispute in order to settle or terminate the same. Article 277 (g)

2 Persons who may assume jurisdiction

Assumption by the President

Assumption of the SOL

Effect of Assumption of Jurisdiction 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 of assumption 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.Article 277 (g)

What are considered national interest cases?The Code vest the President or the Secretary of Labor almost unlimited discretion to determine what industries may be considered as indispensable to the national interest

Effect of Defiance of RTWONon-compliance with the certification order shall be considered as an illegal act committed in the course of the strike or lock-out and the participating employees shall be considered to have lost their employment.A strike undertaken despite the issuance of AJO becomes a prohibited activity and, thus, illegal. Moreover, the union officers and members who have participated in the said illegal activity are, as result, deemed to have lost their employment status.

Points to Remember in AJO

What disputes may be resolved when the Secretary assumes jurisdiction?All cases between the same parties, except where the certification order specifies otherwise the issues submitted for arbitration, which are already filed or may be filed, and are relevant to are proper incidents of the certified case, shall be considered subsumed or absorbed by the certified case, and shall be decided by the appropriate Division of the Commission.

What disputes may be resolved when the Secretary assumes jurisdiction?The Secretary was explicitly granted by Article 263 (g) of the Labour Code the authority to assume jurisdiction over a labour dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, and decide the same accordingly. Necessarily, this authority to assume jurisdiction over the said labour dispute must include and extend to all questions and controversies arising there from, including cases over which the labour arbiter has exclusive jurisdiction.International Pharmaceuticals, Inc., vs. Secretary, 205 SCRA 59

Does assumption of jurisdiction empower the DOLE Secretary to render an arbitral award?Yes, it is within the Secretarys power under Article 277(g). By assuming jurisdiction over labor disputes in industries indispensable to national interest, it is within his competence to render an arbitral award.

Bagong Pagkakaisa ng Manggagawa ng Triumph vs. Secretary (2010)Article 277(g) (263) is both extra-ordinary and a pre-emptive power to address an extra-ordinary situation a strike or lockout in an industry indispensable to national interest. The grant is not limited to the grounds in the notice of strike or lockout, nor it is limited to the incidents of the strike or lockout that in the meanwhile may have taken place. As the term assume jurisdiction connotes, matters within the dispute that gave rise to or which arose out of the strike; it extends to all questions and controversies arising from or related to dispute, including cases over which the labour arbiter has exclusive jurisdiction.

How do you question the arbitral award of the Secretary of Labour?

6. Violation of the Existing AgreementNo strike clause in the CBA is binding only as far as the ground for strike is economic. Such clause does not cover strike whose ground is ULP.Thus, even if there is no-strike clause in the CBA, union may declare strike if ULP is committed.Master Iron Labour Union, vs. NLRC, February 17, 1993

Violation of the Existing AgreementBUT: No strike clause in the CBA is binding only to union that agreed to it in the CBA. It does not bind the newly certified bargaining agent.Benguet Consolidated, Inc., vs BCI Employees and Workers Union-PAFLU, April 30, 1968

CONSEQUENCES OF CONCERTED ACTIONSFundamental Principle:Employment relationship is not severed when the workers refused to work on account of a valid strike. Why?Employee includes any individual whose work has ceased as a result of or in connection with any current labor dispute [Article 219 (f)].

When Strike is LegalEffects: Employees who participated in legal strike shall not become liable, whether they are officers of the union or mere members. However, the workers who participated in the strike is not entitled to wages during the time that they were on strike. A principle of a fair days work for a fair days labor applies.

When Strike is IllegalEffects: Employees who participated in illegal strike shall not be liable, that is, they shall not lose their employment. However, union officers knowingly participates in an illegal strike may be declared to have lost their employment. [Article 278(a)]

When Employees Committed Illegal Acts During StrikeEffects: Employees who participated in the commission of illegal act during legal or illegal strike shall be liable in the sense that they may be declared to have lost their employment. [Article 278(a)]This includes union officers and members of union.

Who declares loss of employment status?

May the employees who were dismissed for participating in an illegal strike entitled to reinstatement and backwages?Only reinstatement but not backwages. Considering that they did not render work for the employer during strike, they are entitled only to reinstatement. With respect to backwages, the principle of a fair days work for a fair days labor, applies. Abaria vs. NLRC, December 7, 2011

2003 Bar QuestionMagdalo, a labour union in Oakwood, a furniture manufacturing firm, after failing in its negotiations with Oakwood, filed with the DOLE a notice of strike. The DOLE summoned Magdalo and Oakwood for conciliation hearings to resolve the deadlock. Unable to agree despite efforts of the DOLE, Magdalo called a strike participated in by its officers and union members including Cesar, a rank-and-file employee. Oakwood filed a petition to declare a strike illegal for not observing the seven day cooling-off period. Oakwood claimed that the strike being illegal, all those who participated therein, including Cesar could be dismissed as, in fact, they were so dismissed by Oakwood. Decide the case.

AnswerNot all who participated in the illegal strike may be dismissed. We must distinguish who participated in the illegal strikes. If it is the union officers who knowingly participated in the illegal strike, they may be declared to have lost their employment. If they are only union members, then they will not be considered to have lost their employment. Ordinary union members may be considered to have lost their employment if they committed illegal acts during the strike. Applying the said legal principle, the dismissal of union members including Cesar is illegal.

2004 Bar QuestionEmployees of ABC declared a strike after filing a Notice of Strike with DOLE. They barricaded company gates and damage vehicles entering company premises. On the second day of strike, ABC filed a petition for DOLE to intervene through the issuance of assumption of jurisdiction order that the Secretary may issue when a strike or lock-out will adversely affect national interest.

2004 Bar QuestionABC furnished the Secretary with evidence to show that company vehicles had been damaged; that electric power had been cut off; and equipment and materials were damaged because electric power was not immediately restored. ABC forecast that the countrys supply of chlorine for water treatment (which the company produces) would be affected adversely if ABCs operations were closed down by the strikers.Could the DOLE Secretary intervene, assume jurisdiction and issue a TRO? Briefly justify your answer.

AnswerYes, the SOLE can assume jurisdiction over the dispute because ABC could be considered as an industry indispensable to the national interest since it produces the countrys supply of chlorine for water treatment. The assumption of jurisdiction by the SOLE has the effect of ending the strike. The strikers will be subject to a return to work order by the SOLE upon her assumption jurisdiction

2004 Bar QuestionBecause of allege ULP by the management of GFI System, a government-owned and controlled corporation, its employees walked out from their jobs and refused to return to work until the management would grant their union official recognition and start negotiations with them. The leaders of the walk-out dismissed, and the other participants were suspended for 60 days. In arguing their case before the CSC, they cited the principle of social justice for workers and the right to self-organization and collective action, including the right to strike.

2004 Bar QuestionThey claimed that the Constitution shielded them from any penalty because their walk-out was a concerted action pursuant to their rights guaranteed by the basic law.Is the position taken by the walk-out leaders and participants legally correct?

AnswerThe position taken by the walk-out leaders and participants is not legally correct. They are government employees, and as such, they do not have the right to strike. Section 3, Article XIII provides that the State shall guarantee the rights of the workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities including the right to strike in accordance with law.

2006 Bar QuestionAs a result of bargaining deadlock between ROSE Corp. and ROSE Employees Union, its members staged a strike. During the strike, several employees staged a strike. During the strike, several employees committed illegal acts. The company refused to give in to the unions demands. Eventually, its members informed the company of their intention