You are on page 1of 161

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

PART I INTRODUCTORY MATERIALS

Section 1. INTRODUCTION
1.1 STATUTORY SOURCE AND INTERPRETATION
Statutory provisions of the Labor Code are construed liberally in favor or EEs, unless otherwise intended by or patent from the language of the statute itself. (Caltex Filipino Managers and Supervisors Assistant vs. CIR)

1.2 DEFINITIONS
ER and EE Art. 212 : An ER ! Any person acting in the interest of the E", directly or indirectly. #he term shall not include any labor organi$ation or any of its officers e%cept when acting as an E".

EE ! Any person in the employ of an E". #he term shall not be limited to the EEs of a
particular E", unless this Code e%plicitly states. &t shall include any individual whose wor' has ceased as a result or in connection with any current labor dispute or because of fair labor practice if he has not obtained any other substantially e(uivalent or regular employment. LABOR OR ANI!ATION and LE ITIMATE LABOR OR ANI!ATION 1. Art. 212 :

Labor Organization ! Any union for association of EEs which e%ists for the purpose
of collective bargaining or of dealing with Es concerning terms and conditions of employment.

Legitimate Labor Organization ! Any labor organi$ation duly registered with the
)*LE that includes any branch or local. 2. A lo al !apter be omes a legitimate labor organization onl" upon submission o#$ A. Charter certificate within +, days from its issuance by the laborfederation or national union.

B. Constitution and by-laws, statement on set of officers, and boo's of accounts


which are certified under oath by secretary or treasurer, and attended to by its president. (%!oenix Iron vs. Se retar" o# Labor and Emplo"ment) LABOR DISPUTE

1. Art. 212 : Any controversy or matter concerning terms and conditions of employment or
the association or representation of persons in negotiating, fi%ing, maintaining, changing or arranging terms and conditions of employment, regardless of whether the disputants stand in the pro%imate relation of E" and EE. 2. What is the test to determine whether a labor controversy comes within the definition of labor dispute? &t depends on whether it involves or concerns terms, conditions of employment or representation. (Azu ena)

Sigma Rho ( ) reviewers


(ersonal copy o! RENE CALLANTA )*2

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

1." LABOR RELATIONS POLICY 1. &!at is t!e poli " o# t!e state 'it! respe t to t!e trade unionism(
bargaining and labor relations) It is the policy of the State to : A. .romote and emphasi$e the primacy of free Collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling labor and industrial disputes. /. .romote free trade unionism as an instrument for the enhancement of democracy and the promotion of social 0ustice and development. C. .romote the Enlightenment of wor'ers concerning their rights and obligations as union members and as EEs. ). #o provide an ade(uate administrative 1achinery for the e%peditious settlement of labor or industrial peace. E. #o ensure a stable but dynamic and 0ust &ndustrial peace. 2. #o ensure the participation of 3or'ers in )ecision and policy-ma'ing processes affecting their rights, duties and welfare. olle tive

G. #o encourage free trade 4nionism and free collective bargaining. *Art. 2+, Co##ecti$e %ar&ainin& ! 5egotiations towards a collective agreement designed to
stabili$e the relation between labor and management and to create a climate of sound and stable industrial peace. (.io/ Lo" vs. 0LRC)

#he Secretary of Labor shall have the power and duty to in(uire into aspects of E"-EE
relations concerning the promotion of harmony and understanding between the parties. *Art. 21, A line must be drawn between policies which are purely business-oriented and those which affect the rights of EEs.

3or'ers and E"s shall, as far as practicable, be represented in decision and policyma'ing bodies of the government. #he Secretary of Labor and Employment or his duly authori$ed representatives may call a tripartite conference of representatives of government, wor'ers and EEs for the consideration and adoption of voluntary codes of principles designed to promote industrial peace or to align labor movement relations with established priorities in economic and social development. *Art. 212- *ME vs. C3%I4-

Section 2. RI 'T TO SELF( OR ANI!ATION


6.7 CONSTITUTIONAL BASIS OF RI 'T

1. Art. III) Sec. *) Con+t. : #he right of the people, including those employed in the public
or private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.
, IMPLICATION of phrase for purposes not contrary to law 8 (( #he right is sub0ect to legislative discretion.

2. Art. -III) Sec. ") Con+t. : #he State shall guarantee the rights of all wor'ers to selforgani$ation, collective bargaining and negotiations, and peaceful concerted activities including the right to stri'e in accordance with law.

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

6.6 CO.ERA E /STATUTORY BASIS0 I. Art. 21" : Co$era&e and EE2+ ri&3t to +e#4(or&ani5ation 6 1. All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions --- whether operating for profit or not, shall have the right to self-organi$ation and to form, 0oin or assist labor organi$ations of their own choosing for purposes of collective bar!ainin!.

2. Ambulant, intermittent and itinerant wor'ers, self-employed people, rural wor'ers and
those without definite E"s may form labor organi$ations for their mutual aid and protection. II. Art. 211 : Ri&3t+ o4 EE2+ in t3e 78%#ic +er$ice ! 7. EEs of government corporations established under the Corporation Code shall have the right to organi$e and bargain collectively with their respective E"s. 6. All other EEs in the civil service shall have the right to form associations for the purposes not contrary to law. #he right does not apply to members of the A2. including police officers, policemen, firemen, and 0ail guards. 9igh-level EEs doing policy ma'ing, managerial or confidential duties are not eligible to 0oin the ran'-and-file organi$ation. :overnment EEs covered by E* ;7<, may organi$e, even unioni$e, can negotiate but 5*# /A":A&5, on matters not fi%ed by law. Cannot stri'e. TA9E NOTE: -#he labor code is silent as to the right to stri'e of employees of :*CCs established under the corporation code. /ut it e%pressly grants the right to collectively bargain and to organi$e. -- #he labor code is silent as to right to stri'e and bargain collectively of employees in the civil service. Anyway, the civil service employees are not under the coverage of the Labor Code. III. Art. 21: : 1. Managerial EE5s are not eligible to 0oin, assist, or form any labor organi$ation. Ta;e note: labor organi$ation is a term that is strictly defined ! it should be for the purpose of collective bargaining concerning terms and conditions or dealing with employment concerning terms and condition of employment. #a'e note the law did not say that they cannot form an association, what the law said is that they cannot form a labor organi$ation

2. Supervisor" EE5s shall not be eligible for membership in a labor organi$ation of the
ran'-and-file EEs but may 0oin, assist or form separate labor organi$ations of their own. " Is #rt. 2$% a violation of the ri!ht to self&or!ani'ation of mana!erial employees? 5o, they are not deprived of the right to organi$e. =ust li'e any right, the right to S* is not an absolute right. &t is sub0ect to police power and certain limitation. And in any case, the mangers still have the right to organi$e and form associations for their mutual aid and protection.

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

"emember that the right to 0oin, form, assist organi$ation and associations should be e%ercised for purposes not contrary to law. &t is sub0ect to legislative discretion. 0ational 3nion o# 6an/ Emplo"ees v. Minister o# Labor *778 SCRA ,19- 7:;7 #he SC (uotes /ureau of Labor "elations )irector 5oriel8 #he rights of wor'ers to elforgani$ation finds general and specific guarantees. -Section > Article &? @7A>+B Constitution provides that the right to form associations or societies for purposes not contrary to law shall 5*# /E A/"&):E). #his right is more pronounced in the case of labor. -Section A, Article && @7A>+B specifically declares that the State shall assure the rights of wor'ers to self-organi$ation, collective bargaining, security of tenure and 0ust and humane conditions of wor'. Such constitutional guarantees should not be lightly ta'en much less easily nullified. A healthy respect for the freedom of association demands that acts imputable to officers or members be not easily visited with capital punishments against the association itself. 6.+ E-TENT AND SCOPE OF RI 'T &. Art. 21< : Non(a%rid&e=ent o4 ri&3t to +e#4(or&ani5ation ! It shall be unlawful for any person to : 7. "estrain 6. Coerce +. )iscriminate against or C. 4nduly interfere with (()s and the wor*ers in their e+ercise of the ri!ht to self&or!ani'ation Su ! rig!t s!all in lude t!e rig!t$ -to form, 0oin or assist labor organi$ations -for the purpose of collective bargaining -through re7re+entati$e+ o4 t3eir o>n c3oo+in& and @ta'e note8 the phrase underlined is the policy behind certification of electionB -to engage in lawful concerted activities -- for the same purpose or for their mutual aid and protection, -sub0ect to the provisions of Art 6DC of this Code. &&. #he right to self-organi$ation includes the right not to form or 0oin a union *Re"es vs. <ra=ano- 9owever, by virtue of the operation or enforcement of a closed shop clause in a C/A, an EE may be compelled on pain of dismissal, to become a member of a labor union. *Al antaraRe"es v. <ra=ano ( 28: SCRA 9;9 *:2:uaranteed to all employees or wor'ers is the Eright to self-organi$ation and to form, 0oin, or assist labor organi$ations of their own choosing for purposes of collective bargaining.E #his is made plain by no less than three provisions of the Labor Code of the .hilippines8 Article 6C+ , Article 6C< @aB , Article 6CA @aB. ,he ri!ht of self&or!ani'ation include: a. the right to organi$e or affiliate with a labor union or b. determine which of two or more unions in an establishment to 0oin, and c. to engage in concerted activities with co-wor'ers for purposes of collective bargaining through representatives of their own choosing, or for their mutual aid and protection, i.e., the protection, promotion, or enhancement of their rights and interests.

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

Logically, the ri!ht -., to /oin0 affiliate with0 or assist any union0 and to disaffiliate or resi!n from a labor or!ani'ation0 is subsumed in the ri!ht to /oin0 affiliate with0 or assist any union0 and to maintain membership therein. #he right to form or 0oin a labor organi$ation necessarily includes the right to refuse or refrain from e%ercising said right. &t is self-evident that 0ust as no one should be denied the e%ercise of a right granted by law, so also, no one should be compelled to e%ercise such a conferred right. #he fact that a person has opted to ac(uire membership in a labor union does not preclude his subse(uently opting to renounce such membership. As early as 7A>C this Court had occasion to e%patiate on these self-evident propositions in 1ictoriano v. (li'alde 2ope Wor*ers3 4nion0 et al., vi$.8 E. . . 3hat the Constitution and &ndustrial .eace Act recogni$e and guarantee is the FrightF to form or 0oin associations. 5otwithstanding the different theories propounded by the different schools of 0urisprudence regarding the nature and contents of a Fright,F it can be safely said that whatever theory one subscribes to,8 a ri!ht comprehends at least two broad notions0 namely: 7B first, liberty or freedom, i.e., the absence of legal restraint, whereby an employee may act for himself without being prevented by lawG 6B second, power, whereby an employee may, as he pleases, 0oin or refrain from 0oining an association.

&t is therefore the employee who should decide for himself whether he should 0oin or not an associationG and should he choose to 0oin, he himself ma'es up his mind as to which association he would 0oinG and even after he has 0oined, he still retains the liberty and the power to leave and cancel his membership with said organi$ation at any time. &t is clear, therefore, that the right to 0oin a union includes the right to abstain from 0oining any union Central 0egros Ele tri Cooperative vs Se retar" o# Labor ( 287 SCRA 2;9 *7::7&n addition, membership in the cooperative is on a voluntary basis. 9ence, withdrawal therefrom cannot be restricted unnecessarily. #he right to 0oin an organi$ation necessarily includes the e(uivalent right not to 0oin the same. #he right of the employees to self-organi$ation is a compelling reason why their withdrawal from the cooperative must be allowed. As pointed out by C4"E, the resignation of the memberemployees is an e%pression of their preference for union membership over that of membership in the cooperative. #he avowed policy of the State to afford full protection to labor and to promote the primacy of free collective bargaining mandates that the employeesF right to form and 0oin unions for purposes of collective bargaining be accorded the highest consideration. 0ational Federation o# Labor v. Se retar" o# Labor ( 2;1 SCRA 2:: *7::;&t is essential that the employees must be accorded an opportunity to 2"EELH and &5#ELL&:E5#LH determine which labor organi$ation shall act in their behalf. ! #he complaint in this case was that a number of employees were not able to cast their votes because they were not properly notified of the date. #hey could not therefore have filed their protests within five @IB. At all events, the Solicitor :eneral States, that the protests were not filed within I days, is a mere technicality which should not be allowed to prevail over the wor'ers welfare. &t is essential that the employees must be accorded an opportunity to 2"EELH and &5#ELL&:E5#LH determine which labor organi$ation shall act in their behalf. #he wor'ers in this case were denied this opportunity. 5ot only were a substantial number of them disfranchised, there were, in addition, allegation of fraud and other irregularities which put in

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

(uestion the integrity of the election. 3or'ers wrote letters and made complaints protesting the conduct of the election. #he report of 1ed-arbiter .ura who investigated these allegations found the allegations of fraud and irregularities to be true. #he wor'ers right to self-organi$ation as enshrined in both the Constitution and the Labor Code would be rendered nugatory if their right to choose their collective bargaining representative were denied. &ndeed, the policy of the Labor Code favors the holding of a certification as the most conclusive way of choosing the labor organi$ation to represent wor'ers in a collective bargaining unit. &n case of doubt, the doubt should be resolved in favor of holding a certification of election. III. 1ay an E" impose as condition for employment that the applicant shall not 0oin a labor organi$ation or shall withdraw from the one he belongs toJ 5o. Such a condition parta'es of the nature of a yellow dog contract and constitutes an unfair labor practice. &t is interference with the individuals right to self-organi$ation. *Al antara6.C ?OR9ERS ?IT' RI 'T TO SELF(OR ANI!ATION FOR PURPOSES OF

COLLECTI.E BAR AININ


All EE5s

1. Art. 21" : All persons employed in commercial, industrial and agricultural enterprises
and in religious, charitable, medical, or educational institutions whether operating for profit or not, shall have the right to self-organi$ation and to form, 0oin or assist labor organi$ations of their own choosing for purposes of collective bargaining. 6. #he 1acho hair Saloon refused to bargain with the union of the barbershop composed of < barbers on the ground that the shop was a service establishment and the number of the barbers was less than 7,. &s the contention tenableJ 5o. #he law does not fi% the minimum number of EEs for the e%ercise of the right to self-organi$ation and the right e%tends to all types of establishments. *Al antara+. #he faculty members of a non-profit school converted their club into a labor union. &s this allowedJ Hes. Even EEs in non-profit or religious organi$ations are entitled to e%ercise this right. *Al antaraFE3>40RMF( In . v FE3>40RMF Allian e o# Fil &or/ers*722 SCRA 122- 7:;1 4nder the Art. 6CC provision, there is no doubt that ran' and file employees of non-profit medical institutions @as herein petitionerB are now permitted to form, organi$e or 0oin labor unions of their choice for purposes of collective bargaining. A. RELI ION #he right of the members of the &glesia ni Kristo sect not to 0oin a labor union for being contrary to their religious beliefs does not bar the members of that sect from forming their own union. *.apatiran vs. Calle=aO.ERNMENT CORPORATION EE2S Art. 211 : Ri&3t+ o4 EE2+ in t3e 78%#ic +er$ice ! EEs of government corporations under the Corporation Code shall have the right to organi$e and bargain collectively with their respective E"s.

SUPER.ISORS

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

7. Art. 21: : Supervisory EEs shall not be eligible for membership in a labor organi$ation of the ran'-and-file EEs but may 0oin, assist or form separate labor organi$ations of their own. LSupervisor" EE5sM ! #hose, who, in the interest of the E", effectively recommend such managerial actions if in the e%ercise of such authority is not merely routinary or clerical in nature but re(uires the use of independent 0udgment. @Art. 212B #he criterion which determines whether a particular EE is within the definition of a statute is the character of the wor' performed rather than the title or nomenclature of position held. *0SRC vs. 0LRC%ro#essional?<e !ni al EE5s may 0oin the e%isting ran' and file union or form a union separate and distinct from the e%isting union organi$ed by the ran' and file EEs of the same company. 5. If the recommendation of the teacher area supervisor is sub/ect to evaluation0 review and final approval of the principal0 is the teacher a supervisory ((? 5o. #his is merely ineffective or clerical recommendation. (Laguna Colleges vs. CIR) $. Supervisors were !iven the /ob of either to assist the foreman if the effective dispatch of manpower and e6uipment or e+ecute and coordinate wor* plans emanatin! from his supervisors. #re these supervisors supervisory personnel? 5o. #hey only e%ecute approved and established policies leaving little or no discretion at all whether to implement the said policies or not. *Sout!ern %!ilippines Federation vs. Calle=aCONFIDENTIAL EMPLOYEES assist or act in confidential capacity to persons who formulate, determine and effectuate management policies in the field of labor relations are ineligible to 0oin ran'-and-file union Assist ! management Access ! labor management relations information @5*# trade secretsB. &f not ! may 0oin. #he confidential relation must e%ist between the EE and his supervisor, and the supervisor must handle the prescribed responsibilities relating to labor relations Fil>oil v. Fil>oil Supervisor" @ Con#idential Emplo"ees Asso iaton *9+ SCRA 272- 7:12 &SS4E8 3*5 supervisors form part of management and are not considered as employees entitled to bargain collectivelyJ 7B As stated for the Court by the now Chief =ustice in A: N . Co. of 1anila, &nc. vs. C.&."., < section + of the &ndustrial .eace Act Ee%plicitly provides that FemployeesF O and this term includes supervisors O Fshall have the right to self-organi$ation, and to form, 0oin or assist labor organi$ations of their own choosing for the purpose of collective bargaining through representations of their own choosing and to engage in concerted activities for the purpose of collective bargaining and other mutual aid or protectionF and that Findividuals employed as supervisors . . . may form separate organi$ations of their ownF. 6B &ndeed, it is well settled that PIN RELATION TO 'IS EMPLOYER,F a foreman or supervisor Fis an employee within the meaning of the ActF . . . 2or this reason, supervisors are entitled to engage in union activities and any discrimination against them by reason thereof constitutes an unfair labor practice.E +B #his further serves to point up the validity and rationale of the &ndustrial .eace ActFs provision, since the supervisors and confidential employees, even though they may e%ercise the prerogatives of management as regards the ran' and file employees are indeed employees in relation to their employer, the company which is owned by the Estoc'holders and bondholders @capitalBE in petitionerFs own words, and should therefore be entitled under the law to bargain collectively with the top management with respect to their terms and conditions of employment.

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

CB #he other principal ground of petitionerFs appeal (uestioning the confidential employeesF inclusion in the supervisorsF bargaining unit is e(ually untenable. "espondent court correctly held that since the confidential employees are very few in number and are by practice and tradition identified with the supervisors in their role as representatives of management vis-a-vis the ran' and file employees, such identity of interest has allowed their inclusion in the bargaining unit of supervisors-managers for purposes of collective bargaining in turn as employees in relation to the company as their employer. 0ational Sugar Re#ineries Corp v 0LRC *228 SCRA 922- 7::, &t is the submission of petitioner that while the members of respondent union, as supervisors, may not be occupying managerial positions, they are clearly officers or members of the managerial staff because they meet all the conditions prescribed by law and, hence, they are not entitled to overtime, rest day and supervisory employees under Article 676 @mB should be made to apply only to the provisions on Labor "elations, while the right of said employees to the (uestioned benefits should be considered in the light of the meaning of a managerial employee and of the officers or members of the managerial staff, as contemplated under Article <6 of the Code and Section 6, "ule & /oo' &&& of the implementing rules. 7B 6B &n other words, for purposes of forming and 0oining unions, certification elections, collective bargaining, and so forth, the union members are supervisory employees. &n terms of wor'ing conditions and rest periods and entitlement to the (uestioned benefits, however, they are officers or members of the managerial staff, hence they are not entitled thereto.

%aper Industries Corporation o# t!e %!ilippines v. Laguesma *,,8 SCRA 2:2- 2888 'ELD: 4nited 7epsi cola rulin! was adopted here: @1anagerial employees are ran'ed as #op managers, 1iddle managers and 2irst Line 1anagers. #op and 1iddle 1anagers have the authority to devise, implement and control strategic and operational policies while the tas' of 2irst-Line 1anagers is simply to ensure that such policies are carried out by the ran'-and-file employees of an organi$ation. 4nder this distinction, managerial employees therefore fall in two @6B categories, namely, -the managers per se composed of #op and 1iddle 1anagers, and the -supervisors composed of 2irst-Line 1anagers. #hus, the mere fact that an employee is designated manager does not ipso facto ma'e him one. )esignation should be reconciled with the actual 0ob description of the employee, for it is the =*/ )ESC"&.#&*5 that determines the nature of employment. &n this case, a thorough dissection of the 0ob description of the concerned supervisory employees and section heads indisputably show that they are 5*# actually managerial employees /4# *5LH supervisory employees S&5CE #9EH )* 5*# LAH )*35 C*1.A5H .*L&C&ES. .&C*.s contention that the sub0ect section heads and managers e%ercise the authority to hire and fire is ambiguous and (uiet misleading for the reason that any authority they e%ercise is 5*# S4."E1E but merely A)?&S*"H in character. #heirs is not a 2&5AL )E#E"1&5A#&*5 of the company policies inasmuch as any action ta'en by them on matters relative to hiring, promotion, transfer, suspension and termination of employees is still sub0ect to confirmation and approval by their respective superior. #hus, where such power, which is in effect "EC*11E5)A#*"H in character, is S4/=EC# #* E?AL4A#&*5, "E?&E3, and 2&5AL AC#&*5 by department heads and other higher e%ecutives of the company. #he same, although present, is not effective and not an e+ercise of I-8(7(-8(-, 948:;(-, as re6uired by law. Samson v. 0LRC *,,8 SCRA 9+8- 2888

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

2AC#S8 &n this case, petitioner was being dismissed for uttering insults and offensive words, referring to or directed against Scheing-.lough Corporations 1anagement Committee. 9EL)8 :iven the environmental circumstances of this case, the acts of petitioner clearly do not constitute serious misconduct as to 0ustify dismissal. 5either is his dismissal 0ustified o the ground of loss of confidence. As a ground for dismissal, the term trust and confidence is restricted to managerial employees. .etitioner is not a managerial employee. &!at is t!e test in onsidering '!et!er one is a managerial emplo"ee or not) <efore one may be properly considered a mana!erial employee0 all the followin! conditions must be met: 7. .rimary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereofG 6. #hey customarily and regularly direct the wor' of two or more employees thereinG +. #hey have the authority to hire or fire other employees of lower ran'G or their suggestions and recommendations as to the hiring and firing and as to the promotion or any other change of status of other employees are given particular weight. Q &t is the nature of the employees function and not the nomenclature or title given to his 0ob, which determines whether he has ran'-and-file, supervisory or managerial status.

position-holder a manager or a supervisor.

#he powers of the position0 not the title, ma'e the

/ut to ma'e one a supervisor, the power to recommend must not be merely routinary or clerical in nature but re(uires the use of independent 0udgment. &n other words, the recommendation is8 7discretionary or 0udgmental @not clericalB 6independent @not a dictation of someone elseB +effective@given particular weight in ma'ing management decisionB &f these (ualities are lac'ing, or worse, if the power to recommend is absent, then the person is not really a supervisor but a ran'-and-file EE and therefore belongs or should belong to a " N 2 organi$ation. Similarly, a so-called manager, regardless of impressive title is not really a manager in the eyes of the law, if he does not possess managerial powers to ma'e policy decisions or people decisions @to lay down and e%ecute management policies andR or to hire, transfer, suspend, lay off, recall, discharge, assign or discipline employeeB. &f he can only recommend the e%ercise of any of these powers, he is a supervisor, hence, may 0oin, assist or form a supervisors organi$ation. 3orse, if he cannot even recommend those acts, or his recommendation is not independent, he is not even a supervisor but a ran'-and-file employee, regardless of position, title, per(uisites, or seniority. A. RI 'T TO OR ANI!E and LIMITATION

1. A supervisory union cannot represent the professionalRtechnical and confidential EEs


whose positions are more of the ran' and file than supervisory. #he professionalRtechnical EEs may 0oin the e%isting ran' and file union, or form a union separate and distinct from the e%isting union organi$ed by the ran' and file EEs. #he intent of the law is to avoid a situation where supervisors would merge with the ran' and file, or where the supervisors labor organi$ation would represent conflicting interests. *%!ilippine %!osp!ate vs. <orres2. ,he union of supervisory personnel affiliated with a national federation. ,he local union of ran* and file was also affiliated with the said national federation. Is this allowed? No. A local supervisors union should not be allowed to affiliate with a national federation of union of ran' and file EEs. Supervisors should be given an occasion to

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

10

bargain together with the ran' and file against the interests of the E" regarding terms and conditions of employment. *Atlas Litograp!i vs. Laguesma,his prohibition a!ainst affiliatin! with the same federation applies only when this 2 conditions are present: " N 2 EEs are directly under the authority of the supervisory EEs #he national federation is actively involved in union activities in the company ALIENS Art 2+: %ro!ibition Against AliensA ex eptions = All aliens, natural or 0uridical, as well as foreign organi$ations are strictly ."*9&/&#E) from engaging direct#A or indirect#A in all forms of activities

trade union

without pre0udice to normal contacts between .hilippine labor unions and recogni$ed international labor centersG .rovided, however, that aliens wor'ing in the country with ?AL&) .E"1&#S issued the )*LE may e%ercise the right to self-organi$ation and 0oin or assist labor organi$ations of their own choosing for purposes of collective bargaining G .rovided, further, that said aliens are nationals of a country which grants the same or similar rights to 2ilipino wor'ers. Ta;e note : Aliens, generally, have no right to self organi$e for purpose of collective bargaining unless 7. #hey have valid permits 6. "eciprocity8 #hat said aliens are nationals of a country which grants the same or similar rights to 2ilipino wor'ers SECURITY UARDS

Manila Ele tri vs Se retar" o# Labor ( 7:1 SCRA 212 *7::7E%ecutive *rder 777, promulgated in 7A<D has eliminated the dis(ualification of security guards from forming labor unions. #hey may now 0oin a ran' and file organi$ation. #he dis(ualification in article 6CI with regards to supervisory employees does not include security guards. . #he implementing rules which dis(ualify security guards from 0oining ran' and file organi$ation are null and void for being not germane to the ob0ect and purposes of E* 777. "ule-ma'ing power is always subordinate to the law from which it proceeds. 6.I ?OR9ERS ?IT' NO RI 'T OF SELF(OR ANI!ATION A. MANA ERIAL AND CONFIDENTIAL EE2S

1. Art. 21: : 1anagerial EEs are not eligible to 0oin, assist, or from any labor organi$ation.
LManagerial EE5s ! #hose whose primary duty consists of the management of the establishment of which they are employed or of a department or subdivision thereof, and to other officers and members of the managerial staff. @Art. *2BM #a'e note8 As stated in -ational Su!ar 2efineries >orp v -?2>, #he definition of a managerial employee in Labor relations @Art. 676B is 5*# e%actly the same as the definition under labor standards @Art. <6B. Art. <6 is much broader in scope, while Art. 676 is much narrower in scope and much more strictly construed

2. #he nature of the 0ob determines whether the EEs fall under the definition of
managerial . A managerial EE is one who is vested with powers of prerogatives to lay down and e%ecute management policies andRor hire, transfer, suspend, lay-off, recall

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

11

discharge, assign or discipline EEs or to effectively recommend such managerial actions. *S%FL vs. Calle=a- #he rationale for this is that the union is not assured the loyalty of managerial EEs in view of evident conflict of interests or that the union can become company-dominated with the presence of managerial EEs in the membership. *Bolden Farms vs. Calle=a-

3. Con4identia# EE2+ are also prohibited from forming unions. *%ier; Arrastre vs.
Con#esor- 9aving access to confidential information, they may become a source of undue advantage. #hey may act as spies of either party to a C/A. #hese include accounting personnel, radio and telephone operators and confidential secretaries. *Bolden Farms vs. Calle=a>riteria to determine who are >onfidential (mployees8-7B Assist or act in a confidential capacity, @this means that the confidential nature of his 0ob is not only incidentalB 6B #o persons who formulate, determine, and effectuate management policies in the 4ie#d o4 #a%or re#ation+. Q #he two criteria are c8=8#ati$e) and both must be met if an employee is to be considered a confidential employeeO#hat is, the confidential relationship must e%ist between the employee and his supervisor, and the supervisor must handle the prescribed responsibilities relating to labor relations. RATIONALE: #he e%clusion from bargaining units of employees who, in the normal course of their duties, become aware of mana!ement policies relatin! to labor relations is a principal ob0ective sought to be accomplished by the confidential employee rule. #he broad rationale behind this rule is that employees should not be placed in a position involving a potential conflict of interests. Q 1anagement should not be re(uired to handle labor matters through employees who are represented by the union with which the company is re(uired to deal and who in the performance of their duties may obtain advance information of the companys position with regard to contract negotiations, the disposition of grievances, or other labor relations matter. CAn important element o# t!e C on#idential emplo"ee ruleD is$ -the employees need to use #a%or re#ation+ in4or=ation. #hus, in determining the confidentiality of certain employees, a 'ey (uestion fre(uently considered is the employees necessary access to confidential labor relations information. &t is evident that whatever confidential data the (uestioned employees may handle will have to relate to their functions. 2rom the foregoing functions, it can be gleaned that the confidential information said employees have access to concerns the employers internal business operations. BUT TA9E NOTE: An employee may not be e%cluded from appropriate bargaining unit merely because he has access to confidential information concerning employers internal business operations and which is 5*# "ELA#E) to the field of labor relations.

&t must be borne in mind that Section + of Article S&&& of the 7A<> Constitution mandates the State to guarantee to all wor'ers the right to self-organi$ation. 9ence, confidential employees who may be e%cluded from bargaining units must be S#"&C#L#H )E2&5E) so as not to needlessly deprive many employees of their right to bargain collectively through representatives of their choosing.

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

12

Will the fact that the employer has access to information0 automatically prohibit confidential employees from /oinin! a labor or!ani'ation? 5*. &nformation has to be related to labor relations. If access is merely incidental0 you cannot classify them as confidential employees. #hus a phone operator or driver cannot be classified as a confidential employee for the purpose of e%cluding them from 0oining a union. #a'e note that it is the policy of the law to encourage self-organi$ation, thus the coverage of its application and scope must necessarily be broad. #hus if you have to limit it, the limitation must strictly be construed and well 0ustified. C. #he ma0or patrons duties include ta'ing complete charge and command of the ship and performing the responsibilities of the ship captainG the minor patron also commands the vessel, plying the limits of island waterway, ports and estuaries. Are they eligible to 0oin or form a unionJ 5o. #he e%ercise of discretion and 0udgment in directing a ships course is managerial in nature. *Asso iation o# Marine O##i ers vs. LaguesmaPRO'IBITION AND RATIONALE Metrolab Industries( In . v. Roldan>Con#esor *229 SCRA 7;2- 7::+ 2AC#S8 Employees involved in the controversy include E%ecutive Secretaries of the companys officers. Can they 0oin the labor unionJ 9EL)8 5*, they are confidential employees. Although Article 6CI of the Labor Code limits the ineligibility to 0oin, form and assist any labor organi$ation to managerial employees, =4"&S."4)E5CE 9AS ES#E5)E) this prohibition to confidential employees or those who by reason of their position or nature of wor' are re(uired to assist or act in a 2&)4C&A"H manner to managerial employees and hence, are li'ewise privy to sensitive and highly confidential records. #he "A#&*5ALE behind the e%clusion of confidential employees from the bargaining unit of the ran' and file employees and their (ualification to 0oin any labor organi$ation was succinctly discussed in 7hilips Industrial 8evelopment v. -?2> @67A SC"A 66AR 7AA6B8 T5L"C committed grave abuse of discretion in decreeing hat a .&)&s Service Engineers, Sales 2orce, )ivision Secretary, all Staff of :eneral 1anagement, .ersonnel and &ndustrial "elations )epartment, Secretaries of Audit, E). and 2inancial systems are included within the ran' and file bargaining unit. &n the first place, all these employees, with the e%ception of the service engineers and the sales force personnel, are confidential employees. <y the very nature of their functions0 they assist and act in a confidential capacity to0 or have access to confidential matters of0 persons who e+ercise mana!erial functions in the field of labor relations. #s such0 the rationale behind the ineli!ibility of mana!erial employees to form0 assist or /oin a labor union e6ually applies to them. ,he rationale for inhibition or prohibition a!ainst ;#-#:(2I#? (;7?.@((S /oinin! unions: #he rationale for this inhibition has been stated to be, because is these managerial employees would belong to or be affiliated with a 4nion, the latter might not be assured of their loyalty to the 4nion in view of E?&)E5# C*52L&C# *2 &5#E"ES#S. #he 4nion can also become company-dominated with the presence of managerial employees in 4nion membership. ,his rationale holds true also for confidential employees who have access to confidential information @e%ample8 accounting personnel, radio and telegraph

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

13

operatorsB, since this confidential information may be a source of undue advantage. Said employees may act as a spy or spies of either party to a collective bargaining agreement. &n the collective bargaining process, managerial employees are supposed to be on the side of the employer, to act as its representative, and to see to it that its interests are well protected. #he employer is not assured of such protection if these employees themselves are union members. Collective bargaining in such a situation can become one-sided. &f confidential employees could unioni$e in order to bargain for advantages for themselves, then they could be governed by their own motives rather than the interest of the employers. 1oreover, unioni$ation of confidential employees for the purpose of collective bargaining would mean the e%tension of the law to persons or individuals who are supposed to act Pin the interest of the employers. It is not far fetched that in the course of collective bar!ainin!0 they mi!ht /eopardi'e that interest which they are duty&bound to protect. 2inally, confidential employees cannot be classified as ran' and file. As previously discussed, the nature of employment is (uite distinct from the ran' and file, thus warranting a separate category. #herefore it is not discrimination to e%clude them from bargaining unit of ran' and file. Manila Ele tri Co. v. Euisumbing *,82 SCRA 71,- 7::: #he confidential employees do not share in the same Pcommunity of interest that might otherwise ma'e him eligible to 0oin his ran' and file co-wor'er, precisely because of a conflicting in those interests. #hus employees holding a confidential position are prohibited from 0oining the union of the ran' and file employees. %epsi>Cola %rodu ts %!ilippines( In . v. Se retar" o# Labor *,72 SCRA 789- 7::: #he confidential employees involved in this case are Credit N Collection 1anagers and Accounting 1anagers. DOCTRINE OF NECESSARY IMPLICATION: what is implied in a statute is as much a part thereof as that which is e%pressed. &n applying the 4OC<RI0E OF 0ECESSARF IM%LICA<IO0, the Court too' into consideration the "A#&*5ALE behind dis(ualification of managerial employees e%pressed in /ulletin .ublishing Corporation v. Sanche$, thus P&n the collective bargaining process, managerial employees are supposed to be on the side of the employer, to act as its representative, and to see to it that its interest are well protected. #he employer is not assured of such protection if these employees themselves are union members. Collective bargaining in such a situation can become one-sided. &f confidential employees could unioni$e in order to bargain for advantages for themselves, then they could be governed by their own motives rather than the interest of the employers. /. ?OR9ERBMEMBER OF COOPERATI.E #he right to forming or 0oining a labor organi$ation for purposes of collective bargaining is not available to an EE of a cooperative who at the same time is a member and co-owner thereof. &t is the fact of ownership of the cooperative and not the involvement in the management thereof, which dis(ualifies a member from 0oining any labor organi$ation within the cooperative with respect however, to EEs who are neither members or co-owners, they are entitled to the rights of self-organi$ation for purposes of collective bargaining *6enguet Ele tri vs. Ferrer>Calle=a-. 9owever, a memberRowner has the right to withdraw as owner of the cooperative for purposes of 0oining the union *Central 0egros Ele tri vs. O# 4OLE-.

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

14

COOP MEMBERS An EE of a cooperative who is also a member and co-owner cannot invo'e the right to collective bargaining, for certainly an owner cannot bargain with himself or his coowners. 9owever, insofar as it involves cooperatives with EEs who are not members or coowners thereof, such EEs are entitled to e%ercise the rights of all wor'ers to organi$ation, collective bargaining negotiations and other rights as are enshrined in the Constitution and e%isting laws of the country. *San =ose oop vs. MOLE ( 7:;:/ut even as regards the EEs who are members of the co-operative, their incapacity to bargain does not stop them from forming their organi$ation which is not a union. &ts purpose is not to collectively bargain but to e%tend aid and protection to its members. .urely EEs of the coop may 0oin or organi$e Cooperative Rural 6an/ o# 4avao vs Ferrer>Calle=a *7+2 SCRA 122- 7:;; 9EL)8 4nder .) 7>I, a C**.E"A#&?E is an organi$ation composed of small producers and of consumers who voluntarily 0oin together to form business enterprises which they themselves, own, control and patroni$e. A cooperative is different from an ordinary business concern. &ts owners or members are the ones who run and operate the business while the others are its employees. #n employee of such a cooperative who is a member and co&owner cannot invo*e the ri!ht to collective bar!ainin! for certainly an owner cannot bar!ain with himself or his co&owners. 9owever, insofar as it involves cooperatives with employees who are -., members or co& owners thereof0 certainly such employees are entitled to e%ercise the rights of all wor'ers to organi$ation, collective bargaining negotiations, and others as are enshrined in the Constitution and e%isting laws of the country. C. NON(EE2S Art. 21" : Ambulant, intermittent and itinerant wor'ers, self-employed people, rural wor'ers and those without definite E"s may form labor organi$ations for their mutual aid and protection. 9owever, they are not entitled to the constitutional right to 0oin or form a labor organi$ation for purposes of collective bargaining. R%6 Beneral Servi es Emplo"ees 3nion v. Laguesma *2+9 SCRA +,1- 7::+ 9EL)8 &f union members are not employees, no right to organi$e for the purpose of bargaining, not to be certified as bargaining agent can be recogni$ed. Since the persons involved are not employees of the company, they are not entitled to the constitutional right to 0oin or form a labor organi$ation for purposes of collective bargaining. @"uling based on Singer Sewing 1achine Company v. )rilonG digest is provided belowB Singer Se'ing Ma !ine Compan" vs 4rilon *7:, SCRA 218- 7::, 9EL)8 SC found that there e%isted 5* employer-employee relationship between the parties primarily because the element of the control test is not satisfied by the terms and conditions of the contracts. #here is nothing in the agreement which implies control by the company not only over the end to be achieved but also over the means and methods in achieving the end. &f union members are not employees, there e%ists no right to organi$e for purposes of bargaining nor to be certified as a bargaining agent. It is a fundamental and essential

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

15

condition that the bar!ainin! unit be composed of employees. 2ailing this, the union becomes illegal. 6.D PARTY PROTECTED &t is well-settled doctrine that the benefits of a C/A e%tend to the laborers and EEs in the collective bargaining unit, including those who do not belong to the chosen bargaining labor organi$ation. Ma tan &or/ers 3nion vs Aboitiz ( 92 SCRA 211 *7:129EL)8 C/A constitutes the law between the parties. #he benefits of the C/A e%tend to the employees in the collective bargaining unit. ,he labor union who won as sole bar!ainin! a!ent of the employees does not act for its members alone. It represents all the employees in such a bar!ainin! unit. #he members of 1actan are therefore entitled to the bonuses. Aurthermore0 what is entitled to protection is labor0 not the labor or!ani'ation. #he latter are merely instrumentalities through which their welfare may be promoted and fostered. 6.> SANCTIONS FOR .IOLATION OF RI 'T Art. 21< : Non(a%rid&=ent o4 t3e ri&3t to +e#4(or&ani5ationO &t shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with employees and wor'ers in their e%ercise of the right to self-organi$ation. Such right shall include the right to form, 0oin or assist labor organi$ations for the purposes of collective bargaining through representatives of their own choosing and to engage in lawful concerted activities for the same purpose or for their mutual aid and protection, sub0ect to the provisions of Art. 6DI of this Code. Art. 21* : Un4air #a%or 7ractice+ o4 e=7#oAer+--&t shall be unlawful for an employer to commit any of the following unfair labor practice8 a. #o interfere with, restrain or coerce employees in the e%ercise of their right to selforgani$ationG b. #o re(uire as a condition of employment that a person or an employee shall not 0oin a labor organi$ation or shall withdraw from one to which he belongsG c. #o contract out services or functions being performed by union members when such will interfere with, restrain or coerce employees in the e%ercise of their rights to selforgani$ationG d. #o initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organi$ation including giving of financial or other support to it or its organi$ers or supportersG

e. #o discriminate in regard to wages, hours of wor' and other terms and conditions of
employment in order to encourage or discourage membership in any labor organi$ation. 5othing in this Code or in any other law shall stop the parties from re6uirin! membership in a reco!ni'ed collective bar!ainin! a!ent as a condition for employment, e%cept those employees who are already members of another union at the time of the si!nin! of the collective bar!ainin! a!reement. Employees of an appropriate collective bargaining unit who are not members of the recogni$ed collective bargaining agent may be assessed a reasonable fee e(uivalent to the dues and other fees paid by members of the recogni$ed collective bargaining agent, if such non-union members accept the benefits under the collective agreement8

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

-Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

16

.rovided, that the individual authori$ation re(uired under Art. 6C6 paragraph @oB of this Code shall not apply to the non-members of the recogni$ed collective bargaining agentG

f.

#o dismiss, discharge, or otherwise pre0udice or discriminate against an employee for having given or being about to give testimony under this CodeG

g. #o violate the duty to bargain collectively as prescribed by this CodeG h. #o pay negotiation or attorneys fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other disputeG or i. #o violate a collective bargaining agreement.

#he provisions of the preceding paragraph notwithstanding, only the officers and agents of corporations, associations or partnerships who have actually participated in, authori$ed or ratified unfair labor practices shall be held criminally liable. Art. 21C : Un4air #a%or 7ractice+ o4 #a%or or&ani5ation--&t shall be unfair labor practice for a labor organi$ation, its officers, agents or representatives8 a. to restrain or coerce employees in the e%ercise of their rights to self-organi$ation. 9owever, a labor organi$ation shall have the right to prescribe its own rules with respect to the ac(uisition or retention of membershipG b. to cause or attempt to cause and employer to discriminate against an employee, including -discrimination against an employee with respect to whom membership in such organi$ation has been denied or -to terminate an employee on any ground other that the usual terms and conditions under which membership or continuation of membership is made available to other membersG c. to violate the duty, or refuse to bargain collectively with the employer, provided it is the representative of the employeesG 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, & the nature of an e%action, for services which are not performed or not to be performed, including the demand for fee for union negotiations e. to as' for or accept negotiations or attorneys fees from employers as part of the settlement of any issue in collective bargaining or any other disputeG or f. to violate a collective bargaining agreement.

,he provisions of the precedin! para!raph notwithstandin!0 -*5LH the officers, members of governing boards representatives or -agents or -members of labor organi$ations who have actually participated in, authori$ed or ratified unfair labor practices shall be held criminally liable.

1.

Art. 2** : %enalt" ! 2ine of not #e++ t3an P1)DDD.DD nor =ore t3an P1D)DDD.DD I=7ri+on=ent o4 not #e++ t3an " =ont3+ nor =ore t3an " Aear+, or Bot3, at the discretion of the court.

&n addition to such penalty, any alien found guilty shall be summarily deported upon completion of service.

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

17

Any provision of the law to the contrary notwithstanding any criminal offense punished under this Code shall be under the concurrent 0urisdiction of the 1unicipal or City Courts and the "#C.

2. Art. 2*C : &f the offense is committed by a corporation, trust, firm, partnership,
association or any other entity, the penalty shall be imposed upon the guilty officer or officers of such corporation, trust, firm, partnership, association or entity.

Section ". LABOR OR ANI!ATION


+.7 POLICY Sec. 211 : &t is a policy of the State to 8 7. .romote free trade unionism as an instrument for the enhancement of democracy and the promotion of social 0ustice and development. 6. 2oster the free and voluntary organi$ation of a strong and united labor movement. Fro= t3e co==entarie+ : &f labor unions are to serve and protect the interest of the wor'ers, then the unions themselves must be sufficiently strong and stable to be able to fulfill effectively their assigned role in society. &t is also incontrovertible that in such a regime of collective bargaining it is essential that the negotiations be conducted between parties of relatively e(ual strength. +.6 LABOR OR ANI!ATION ( UNIONS Art. 277. 4e laration o# poli "---&t is the policy of the State8 @gB #o ensure the participation of wor'ers in -decision and policy-ma'ing processes -affecting their rights, duties and welfare. DEFINITIONS A. LABOR OR ANI!ATION Art. 212 : Any union or association of EEs which e%ist for the purpose of collective bargaining or of dealing with E"s concerning terms and conditions of employment. Labor Organization v. &or/er5s Organization LABOR OR ANI!ATION ?OR9ER2S OR ANI!ATION Co=7o+ition: Employees Co=7o+ition: Employees P8r7o+e: collective bargaining or of P8r7o+e: organi$ed for mutual aid and dealing with employers concerning terms protection of its members or for any other and conditions of employment. legitimate purpose ot!er t!an olle tive bargaining Airline %ilots Asso iation o# t!e %!ilippines v. CIR "A <>I defines labor organi$ation as any union or association which e%ists, in whole or in part, for the purpose of collective bargaining. #here is no condition to the statutory concept of a labor organi$ation as bein! limited to the employees. MI-ED MEMBERS'IP 4unlop v. Se . o# Labor ( 288 SCRA 728 *7::;-

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

18

# labor .r!ani'ation composed of both ran* and file and supervisory employees is no labor or!ani'ation at all. &t cannot possess the rights of a legitimate labor organi$ation. <o"ota v. <o"ota $ 2+; SCRA 21, *7::1'ELD: Clearly based on Art. 6CI @&neligibility of managerial employees to 0oin any labor organi$ationG right of supervisory employeesB, a labor organi$ation composed of both ran'-andfile and supervisory employees is no #a%or or&ani5ation at a##. &t cannot, for any guise or purpose be a legitimate labor organi$ation. RATIONALE of Codes e%clusion of supervisors from unions of ran'-and-file employees8 is that such employees, while in the performance of supervisory functions, become the alter ego of management in the ma'ing and the implementing of 'ey decisions at the submanagerial level. Certainly it would be difficult to find unity or mutuality of interests in a bargaining unit consisting of a mi%ture of ran'-and-file and supervisory employees. TA9E NOTE: A legitimate labor organi$ation is technically defined by the code in such a way that it has a designated purpose, which is to bargain collectively. #hus for it to bargain efficiently and effectively it must be an appropriate bargaining unit, meaning that it shares mutuality of interest among members of the unit. #hus if it is composed of supervisor and ran'-and-file, who inherently do not share mutuality of interests, then it cannot serve the purpose of a legitimate labor organi$ation, thus it is no LL* at all. /. LOCAL UNION Sec. 1) R8#e I) Boo; .) IRR2+ : Any labor organi$ation operating at the enterprise level. C. NATIONAL UNION FEDERATION Sec. 1) R8#e I) IRR2+ : Any labor organi$ation with at least 7, locals or chapters each of which must be duly recogni$ed bargaining agent. ). LE ITIMATE LABOR OR ANI!ATION Art. 212 : Any labor organi$ation duly registered with the )*LE, and includes any branch or local thereof. ).7 DOLE RE ISTRATION BASIS A labor organi$ation ac(uires legitimacy only upon registration with the )*LE. *%rogressive 4evelopment vs. Se retar" o# Labor and Emplo"ment- A SEC registration cannot suffice. *Cebu Seamen5s Asso iation vs. Ferrer>Calle=aQ # branch or local of a ?e!itimate ?abor or!ani'ation 8.(S -., become a le!itimate labor or!ani'ation simply by affiliatin! itself. #he rules re(uire certain re(uirements to avoid fraud. E. COMPANY UNION Art. 212 : Any labor organi$ation whose information, function or administration has been assisted by any act defined as 4L. by this Code. Q A company union is not really a union contemplated by law since it violates the provisions of Article 6C<. De7t. Order No. C Boo; 1) Sec. 1
@hB La%or or&ani5ation

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

--

19

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

means any union or association of employees which e%ists in whole or in part for the purpose of collective bargaining or for dealing with employers concerning terms and conditions of employment

@iB Le&iti=ate #a%or or&ani5ation -means any labor organi$ation defined under letter @hB which is duly registered wR the )ept. #he term includes a localRchapter directly chartered by a federation or national union wRc has been duly reported to the )ept. in accordance wR "ule D, sec. 6 of this /oo' @0B ?or;er+2 A++ociation -means any association of wor'ers -organi$ed for mutual aid and protection of its members or -for any other legitimate purpose ot!er t!an olle tive bargaining """ ,his is a new concept. @'B Inde7endent Union -means any labor organi$ation -operating at the enterprise level -whose legal personality is derived through an independent a tion #or registration prescribed under A.6+C of this Code and "+, sec. 6 of these "ules. -An independent union may be affiliated wR a federation, national or industry union, in which case it may also be referred to as an affiliate @lB Loca# 8nionBc3a7ter =ean+ anA #a%or or&. -operating at the enterprise level -whose legal personality is derived through the issuance of a !arter by a duly registered federation or national union, -sub0ect to the reporting re(uirements prescribed in "D, sec. 7 of these "ules. @mB Nationa# 8nionB4ederation =ean+ anA #a%or or&. -with at least 7, localsRchapter or affiliates -- each of which must be a duly certified or recogni$ed collective bargaining agent A FEDERATION: is union composed by &5)E.E5)E5# 45&*5S. An independent union is a labor organi$ation with a legal personality which is derived through an independent action for re!istration. #he provision re(uires that the 7, affiliates of the federation must be duly certified or recogni$ed bargaining agents. #his means that they must have been elected in a certification election, and they must be legitimate labor organi$ations by themselves. Why BC affiliates? 7, is an arbitrary number. #he purpose was so that it will not be easy to form a federation. #he old policy of the law was 7 industry U 7 union. /ut now the new policy of the law is the formation of a Strong and 4nited Labor 4nion. @nB Le&iti=ate >or;er+ a++ociation (( means any wor'ers association defined under letter @0B which is duly re!istered wD the 8ept. @oB Ind8+trA 8nion =ean+ -any group of legitimate labor organi$ations -operating within an identified industry, -organi$ed for collective bargaining or for dealing with employers concerning terms and conditions of employment within an industry or -for participating in formulation of social employment policies, standards and programs in such industry which is duly registered with the )ept. in accordance wR "+. sec. 6 of these rules. @pB Trade 8nion center =ean+ -any group of registered national unions or federations organi$ed for mutual aid and protection of its members for assisting such members in collective bargaining or for participating in formulation....

DOLE RE ISTRATION AS BASIS Cebu Seamen5s Asso .( In v Ferrer>Calle=a ( 272 SCRA 28 *7::2-

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

20

#he unions registration with the bureau and not the SEC ma'es it a legitimate labor organi$ation, with the rights and privileges granted by the Labor Code including the release or custody of union dues. ,he 7ro!ressive 8evelopment case is a very important case. <elow is an outline of the important parts of the case. %rogressive 4ev5t v Se . o# Labor282 SCRA ;82 Art. 676 defines a legitimate labor organi$ation as any labor organi$ation duly registered with the )*LE and includes any branch or local thereof. &. *rdinarily, a labor organi$ation ac(uires legitimacy *5LH upon registration with the /L". #he re(uirements for registration are in Article 6+C. a. #he applicant labor organi$ation shall ac(uire legal personality and shall be entitled to the rights and privileges granted by law to a legitimate labor organi$ation 4.*5 issuance of the certificate of registration based on the re(uirements in Article 6+C. i. ii. .I, registration fee #he names of its officers their addresses, the principal address of the labor org, the minutes of the organi$ational meetings and the list of the wor'ers who participated in such meetings #he names of all its members comprising at least 6,V of all the Ees of the bargaining unit it see's to operate &f the applicant union has been in e%istence for 7 or more years, copies of its annual financial reportsG and 2our @CB copies of the constitution and by-laws of the applicant union, minutes of its adoption or ratification and the list of the members participating in it. b. 1oreover, section C of "ule &&, /oo' ? of the &mplementing "ules re(uires8 @iB @iiB that the application should be signed by at least twenty percent @6,VB of the employees in the appropriate bargaining unit and

iii. iv. v.

be accompanied by a sworn statement of the applicant union that there is no certified bargaining agent or, where there is an e%isting collective agreement duly submitted to the )*LE, that the application is filed during the last si%ty @D,B days of the agreement. RATIONALE: &!at is t!e purpose o# t!e La' #or reGuiring so man" reGuirements) "egistration is re(uired to protect both labor and the public against abuses, fraud, or impostors who pose as organi$ers, although not truly accredited agents of the union they purport to represent. Are t!ese registration reGuirements a urtailment o# t!e #reedom to asso iate) 5*. #hese re(uirements are not restrictions on the freedom of assembly and of association. "ather they are merely conditions sine (ua non for the a Guisition o# legal personalit" by a labor org and the possession of rights and privileges granted by law to a legit L*. #he consti does not guarantee these rights and privileges, much less personality, which are mere statutory creationsOfor the possession

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

21

and e%ercise of which, registration is re(uired. %%% Such re(uirement is valid e%ercise of police power because the activities in which Los are engaged in a44ect 78%#ic intere+t which should be protected. &&. /4# when an 45"E:&S#E"E) union becomes a branch, local or chapter of a federation, some of the aforementioned re(uirements for registration are no longer re(uired. #he provisions governing 45&*5 A22&L&A#&*5 are found in "ule &&, Section +, /oo' ?. "elevant portions are as follows8 @#a'e note this part of the case is no longer seen in the amendments in the rules by )*. 5o. A which was promulgated on 7AA>, this case was decided in 7AA6B TA9E NOTE: #wo types of union may become affiliated with a federation or a national union8 7B A local or chapter of a federation 39&C9 )&) 5*# undergo the rudiments of registration. 6B An independently registered union may also be an affiliate of a federation or national union. &mplicit in the forgoing differentiation is the fact that a local or chapter need NOT BE inde7endent#A re&i+tered. /y force of law @Art. 676 hB such local or chapter becomes a legitimate labor organi$ation upon compliance with the aforementioned provisions of Section + @4nder )*. 5o. A, its is now "ule &? /oo' ? section 7 N section +B ?3at reE8ire=ent+ i=7o+ed %A Art. 2"1 4or t3e re&i+tration o4 an inde7endent 8nion are OMITTED >3en it co=e+ to re&i+tration o4 a #oca# or c3a7terF iB #he re(uirement that the application for registration must be signed by at least 6,V of the employees in the appropriate bargaining unitG iiB #he submission of officers addresses, principal address of the labor organi$ation the minutes of the organi$ational meetings list of the wor'ers who participated in such meetings #he submission of the minutes of the adoption or ratification of the constitution and by laws and the list of the members who participated in it.

iiiB

RATIONALE: 4ndoubtedly, the intent of the law is imposing lesser re(uirements in this case is to encourage the affiliation of a local union in order to increase the local unions bargaining powers respecting term and conditions of labor.

Although there are few re(uirements, the re(uirements in A 6+I regarding certification under oath still has to be complied with. &n the case at bar, the constitution and by-laws and list of officers submitted to the /L", while attested to by the chapters president, were not certified under oath by the secretary. )oes such defect @the consti and by-laws were not certified under oathB warrant the withholding of the status of legitimacy to the local or chapterJ HES. &t is a fatal defect. RATIONALE: #he certification and attestation re(uirements are preventive measures against the commission of fraud.

#he rationale for re(uiring that the submitted documents and papers be certified under oath by the secretary or treasurer, as the case may be, and attested to by the president is apparent. 4pon the approval of the application for registration,

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

22

the L* ac(uires legal personality and thereby becomes entitled to all the rights and privileges granted by the law to a legit L.*. #he employer would naturally need assurance that it is dealing with a bonafide organi$ation, one which has not submitted false statements and misrepresentation to the /L". a. ,he inclusion of the certification and attestation re6uirements will in a mar*ed de!ree allay these apprehensions of mana!ement. /ecause the issuance of a false statement and misrepresentation is a ground for cancellation of registration and is also a ground for criminal charges of per0ury. b. #he certification and attestation re(uirements are preventive measures against the commission of fraud. c. #hey li'ewise afford a measure of protection to unsuspecting employees who may be lured into 0oining unscrupulous or fly-by-night unions whose sole purpose is to control union funds or to use the union for dubious ends. Since there are lesser re(uirements for a local or a chapter, there is greater reason to e%act compliance with the certification and attestation re(uirements. #he policy of the law in conferring greater bargaining power upon labor unions must be balanced with the policy of providing preventive measures a!ainst the commission of fraud. 1A&5 W4ES#&*5 of the case8 ?3en doe+ a %ranc3) #oca# or a44i#iate o4 a 4ederation %eco=e a #e&iti=ate #a%or or&ani5ationF A local or chapter therefore becomes a legitimate L* only upon submission of the following to the /L"8 charter certificate within +, days from its issuance by the national unionG and constitution and /y-laws, statement of the set of officers and boo's of accounts all of which must be certified under oath by the secretary or treasurer of such local chapter and attested by its president. #bsent compliance with these mandatory re6uirements0 the local or chapter does not become a le!itimate labor or!ani'ation. @Ta;e note: #his is not in the law, but only in the implementing rules, now under )*. 5o. A, it is /oo' ?, "ule ?& sec. 7. #he .rofessor as'ed what is the legal basis of these re(uirements, the answer is the implementing rules not the labor code.B &n case at bar, the failure of the secretary of .)E4-Kilusan to certify the re(uired documents under oath is fatal to its ac(uisition of a legitimate status. TA9E NOTE: )ifference of an oath from an attestation is that in an oath, you are in effect saying that all that is contained therein is true and it ma'es you liable for per0ury. 3hile an attestation merely means that you have witnessed the fact of it. San Miguel Foods( In . H. Laguesma ( 2+, SCRA +; *7::1&t is important to determine whether or not a particular labor organi$ation is legitimate since legitimate labor organi$ations have e%clusive rights under the law which cannot be e%ercised by non-legitimate unions. ISSUE: &s a C9A"#E" CE"#&2&CA#E defective if it 5*# certified under oath and attested to by the organi$ations secretary and presidentJ 5* it is not defective. A charter certificate need 5*# be certified under oath. 3hat is re(uired to be certified under oath by the secretary or treasurer and attested to by the locals president are8 7. the constitution and by-laws

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

6. +. Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

23

Statement of the set of officers #he boo's of accounts

#he charter certificate issued by the mother union need not be certified under oath by the secretary or treasurer and attested to by the locals president. &!en does a labor organization a Guire legitima ") *rdinarily a labor organi$ation attains the status of legitimacy only upon the issuance in its name of a Certificate of "egistration by )*LE. Furusa'a v. Se retar" o# Labor ( 2;2 SCRA +,2 *7::1#he presentation of the Sero% copy of the certificate of registration to support its claim of being a duly registered labor organi$ation instead of the submission of the original certificate is sufficient proof of its legitimacy, not a fatal defect. #he issuance of the certificate of registration evidently shows that 2E4-&5) has complied with the re(uirements of Art. 6+C of the Labor Code. Certification proceeding is non-adversarial, technical rules do not apply. 3hen conflicting interests of labor and capital are to be weighed on the scales of social 0ustice, the heavier influence of the latter should be balanced by sympathy and compassion which the law must accord the underprivileged wor'er. #his is only in 'eeping with the constitutional mandate that the State shall afford full protection to labor. +.+ UNION RATIONALE Bui=arno v. CIR22 SCRA ,81 *7:1,#he state has an obligation to afford protection to labor. %%% #hat is to carry out the purpose implicit in one of the five declared principles, namely the promotion of social 0ustice to insure the well being and economic security of the peopleT &t is then the individual employee, as a separate, finite human being, with his problems and his needs, who must be attended to. 9e is the beneficiary of the concerns thus made manifest by the fundamental law. RATIONALE: 3here does that leave a labor unionJ Correctly understood, it is nothing but the means of assuring that such fundamental ob0ectives would be achieved. &t is the instrumentality through which an individual laborer who is helpless as against a powerful employer may, through concerted effort and activity achieve the goal of economic well-being. 3or'ers unorgani$ed are wea', wor'ers organi$ed are strong. 4nions are merely instrumentalities through which their welfare may be protected and fostered. #hat is the raison dXtre of labor unions.&t is the instrumentality by which the wea* laborer up a!ainst the stron! employer, may, by concerted effort, achieve economic well-being. Ieirs o# Cruz v CIR,8 SCRA :71 #he Constitution en0oins the State to afford protection to labor. 2air dealing is e(ually demanded of unions as well as of employers in their dealings with employees. RATIONALE: #he union has been evolved as an organi$ation of collective strength for the protection of labor against e%actions of capital. #he union is but an agent of the individual wor'ers and it has the duty to inform the members of the labor matters entrusted to it. #he employer may rely on the authority of the union to bring the union members especially in collective bargaining where the matters to be discussed are still to

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

24

be observed but this case is an e%ception. 3hat is sought here are bac'wages and other benefits already earned. Authority for the union to waive this must be e%press. &n a compromise or settlement, the individual union members are the real 0udgment creditors and are the real parties in interest. ?3en i+ a #a%or or&ani5ation >3o#e+o=eJ A labor organi$ation is wholesome if it serves its legitimate purpose of promoting the interests of labor without unnecessary labor disputes. #hat is why it is given personality and recognition in concluding C/As. but if it is made use as a subterfuge, or as a means to subvert valid commitments, it defeats its own purpose, for it tends to undermine the harmonious relations between management and labor. *3nited Seamen5s 3nion vs. 4avao S!ipo'ners Asso iation+.C LABOR UNION AND

O.ERNMENT RE ULATION

UNION RE ISTRATION AND PROCEDURE REGUIREMENTS ?3at are t3e reE8ire=ent+ 4or re&i+tration o4 a #a%or or&ani5ationF Art. 2"1 : Any applicant labor organi$ation shall ac(uire legal personality and shall be entitled to rights and privileges of legitimate labor organi$ations upon issuance of a certificate of registration upon submission of the following re(uirements8 A. "egistration 2ee @.hp I,.,,B /. 5ames of its officers, addresses, principal address of the organi$ation, minutes of meetings and list of wor'ers who participated in meetings. C. 5ames of all its members comprising at least 6,V of all its EE s in the bargaining unit. @5ot applicable if by charteringB ). Copies of annual financial reports if union has been in e%istence for more than 7 year. @&f less than 7 year ! 5o more need to file financial statementB E. Copies of constitution and by-laws. Sec. ") R8#e II) Boo; .) IRR2+ : Sworn statement by applicant union that there is no certified bargaining agent in bargaining unit concerned. 3hen there is an e%isting C/A duly submitted to the )*LE, a sworn statement that the application for registration was filed during the last D, days of the agreement. #he application and all accompanying documents shall be verified under oath by the secretary or the treasurer as the case may be, and attested to by the president. @&d.B

II. ?3at are t3e additiona# reE8ire=ent+ 4or 4ederation+ or nationa# 8nion+F /Art. 2"H0 A. .roof of affiliation of at least 7, local chapters. Each of which must be a duly recogni$ed collective bargaining agent in the establishment or industry in which it operates. B. 5ames and addresses of the companies where the locals or the chapters operate and list of all the members in each company involved. A union does not become legitimate by the mere fact of affiliation /4# by registration. &t is registration with the /L" which made it a LL* with rights and privileges granted under the Labor Code. 4nion registration is a ministerial duty if all the re(uirements are present Y 1andamus will lie III. ?3at i+ t3e 7eriod 4or action on a77#icationF +, days from filing *Art. 2,2Boo; . R8#e . Sec. " Action on A77#ication

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

25

#he "egional *ffice or /ureau, as the case may be, shall act on the application for registration within thirty @+,B days thereof, either by approving the application and issuing the certificate of registration, or denying the application for failure of the applicant to comply with the re(uirements for registration. 3here the documents supporting the application are not complete or do not contain the re(uisite attestation re(uirements, the "egional *ffice or /ureau shall, within five days from receipt of application, notify the applicant in writing of the re(uirements needed to complete the application. 3here the applicant fails to complete the re(uirements within thirty @+,B days from receipt of notice, the application shall be denied without pre0udice. TA9E NOTE: Hou cannot deny outright an application for registration when the only ground to deny is the incompleteness of the re(uirements. #he applicant must be notified first and be given a chance to complete the re(uirements. &t is only after thirty days after notice that such may be denied. Boo; . R8#e III /a+ a=ended %A DO. No. C0 : Sec. 1: ?3ere to 4i#e a77#icationI #he application for registration of any8 7B 4ederation) nationa# or ind8+trA 8nion or trade 8nion center: -shall be filed with the B8rea8. 6B Inde7endent Union -shall be filed with and be acted upon by the "egional *ffice where the applicants 7rinci7a# o44ice is located. +B Loca# Union: #he charter certificate issued by the federation or national union in creating a localRchapter, together with the supporting documents8 -shall be filed with the "egional *ffice or the /ureau within @+,B days from the issuance of such charter certificate. Boo; . R8#e .I Sec. 1 C'ARTERIN AND CREATION OF A LOCALBC'APTER: A duly registered federation or national union may )&"EC#LH C"EA#E a localRchapter by submitting to the "egional *ffice or to the /ureau two @6B copies of the following8 a. a !arter erti#i ate &SS4E) /H labor federation or national union indicating the creation or establishment of a local or chapterG b. #he names of the localR chapters officers, their addresses, and principal office of the localRchapterG and c. #he localRchapters constitution and by-lawsG provided that where the localRchapters constitution and by-laws is the same as that of the federation or national union, this fact shall be indicated accordingly. A## the foregoing supporting re(uirements shall be certified under oath by the Secretary or #reasurer of the LocalRchapter and attested to by its .resident. Sec. " ACGUISITION OF LE AL PERSONALITY BY LOCALBC'APTER 6 A localRchapter constituted in accordance with section 7 of this "ule shall ac(uire legal personality from the date of filing of the complete documents enumerated therein. 4pon compliance with all the documentary re(uirements, the "egional *ffice or /ureau shall issue in favor of the localRchapter a certificate indicating that it is included in the roster of legitimate labor organi$ations. Sec. 1 AFFILIATION OF AN INDEPENDENT UNION An independent union shall be considered an affiliate of a federation or national or industry union upon filing by the later to the "egional *ffice or /ureau of8

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

7B 6B +B Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

26

two @6B copies each of verified resolution of affiliation, ratified by a ma0ority of the members of the former, and a resolution of acceptance by the later.

NOTES: Q A LOCAL or C'APTER becomes a LL* only upon submission of the following to the /L"8 7. A C9A"#E" CE"#&2&CA#E, within +, days for its issuance 6. #he constitution and by laws +. A statement on the set of officers C. /oo's of accounts all of which are certified under oath by the secretary or treasurer as the case may be, of such local chapter and attested to by its president. Q DO J C /1CCH0 - #he submission of boo's of accounts is no longer re(uired in registering a union ! if e%istence for less than a year. %agpalain Iauling In . v. <ra=ano ( ,78 SCRA ,+9 *7:::#he Labor Code DOES NOT reE8ire the submission of %oo;+ o4 acco8nt in order for a labor organi$ation to be registered as a legitimate labor organi$ation. #he re(uirement that boo's of account be submitted as a re(uisite for registration can be found only in /oo' ? of the *mnibus "ules &mplementing the Labor code, %RIOR to its amendment by )* 5o. A Series of 7AA>. Specifically, the old Section +@e, "ule &&, of /oo' ? provided that the local or chapter of a labor federation or national union shall have and maintain a constitution and by-laws, set of officers and /**KS *2 ACC*45#S. 2or reporting purposes, the procedure governing the reporting of independently registered union, federations or national unions shall be observed. Since )epartment *rder 5o. A has done away with the submission of boo's of accounts as a re(uisite for registration, .agpalains only recourse now is to have said order declared null and void. #he controlling intention in re(uiring the submission of boo's of accounts is the protection of labor through the minimi$ation of the ris' of fraud and diversion in the handling of union funds. /ut this intention can still be reali$ed through other provisions of the Labor Code. @E%ample Art. 6C7 b, g, h, &, 0, l, mG Art. 6>CB )epartment *rder 5o. A only dispenses with boo's of accounts as a re(uirement for registration of a local or chapter of a national union or federation. As provided by Article 6C7 h and 6C7 0, a labor or!ani'ation must still maintain boo*s of account0 but it need not submit the same as a re6uirement for re!istration. CREATION AND RE ISTRATION MET'ODS: Q A union at the enterprise level may be created either by @aB independent re!istration or @bB charterin!. Inde7endent re&i+tration is obtained by the union organi$ers in an enterprise through their own action instead of through issuance of a charter by a federation, national or industry union. #he union thus created has a legal personality of its own and is called an independent union. /ut it may affiliate with a federation, national or industry union, in which case it may also be called an affiliate. #he application for registration of an independent union is filed with and will be acted upon by the )*LE regional office where the applicants principal office is located. C3arterin& ta'es place when a duly registered federation or national union issues a charter to a union in an enterprise and registers the charter with the "egional *ffice or the /ureau of Labor "elations. #he union recipient of the charter is called a chapter or local. &t has no legal personality of its own as long as it has not availed itself of independent registration. #he charter certificate issued by a federation or national union, together with supporting

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

27

documents evidencing the establishment of such localRchapter, is filed with the regional office or the /ureau of Labor "elations within thirty days after issuance of the charter certificate. INDEPENDENT UNION &ndependent from mother union. &ts legitimacy was obtained on its own. 9as its own registration. "egular re(uirement for registration "e(uirements for registration are in the law itself. 1ay disaffiliate and remain legitimate. AFFILIATE >3o i+ not an inde7endent 8nion )oes not have its own registration. &ts legitimacy was obtained through its mother union. &ts re(uirements for registration are less "e(uirements for registration are not in the law, but in the implementing rules ISSUE: ;ay an affiliate who is not an independent union retain its le!itimacy if it disaffiliates from its mother union from where it derives its le!al personalityDle!itimacy? Ye+. *nce a union attains its legitimacy in A5H means, it retains its legitimacy. /ecause the right to associate includes the right to disaffiliate. @C.B.U.K 5o minimum or ma%imum number is re(uired to constitute a bargaining unit. "egardless of their number, twenty percent of the employees in the bargaining unit should be members of the labor organi$ation applying for independent registration. /ut the 6, percent is not re(uired when a federation or national union creates, through chartering, a local chapter in an enterprise. A company may therefore be unioni$ed even if less than 6, percent of the employees in the bargaining unit participate in the unioni$ing effort. Bar&ainin& 8nit refers to the group of employees which the labor union will represent in dealing or bargaining with the employer. &t is that cluster of 0obs or positions that politically supports within the company the labor organi$ation applying for registration. /argaining unit is the people represented by the representative union which therefore is called the bargaining agent. /argaining unit is e%plained further under Art. 6II. Q A union does not become legitimate by the mere fact of affiliation. /4# by registration. - &t is the registration with the /L" which made it a LL* with rights and privileges granted under the LC. Q 4nion registration is a ministerial duty if all the re(uirements are complied with. - 1andamus will lie. A. REGUIREMENT AND RATIONALE "egistration is a ondition sine Gua non for the ac(uisition of legal personality by a labor organi$ation. *%rote tion <e !nolog" vs. Se retar" o# Labor and Emplo"ment- 9owever, it is not a limitation on the right of assembly or association which may be e%ercised with or without said registration. *%AFL3 vs. Se . o# Labor- #he statutory and regulatory provisions of defining the re(uirements of legitimate labor organi$ations are an e%ercise of the overriding police power of the State designed for the protection of wor'ers against potential abuses by unions that recruit them. *%rote tion <e !nolog" vs. Se . o# Labor- or fly-by-night unions whose sole purpose is to control union for dubious ends. *%!oenix Iron vs. Se . o# Labor and Emplo"ment%rogressive 4ev5t v Se . o# Labor ( 282 SCRA ;82

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

28

#hese re(uirements are not restrictions on the freedom of assembly and of association. "ather they are merely conditions sine (ua non for the ac(uisition of legal personality by a labor org and the possession of rights and privileges granted by law to a legit L*. #he consti does not guarantee these rights and privileges much less personality, which are mere statutory creationsOfor the possession and e%ercise of which, re!istration is re6uired to protect both labor and the public a!ainst abuses0 fraud or impostors who pose as or!ani'ers0 althou!h not duly accredited a!ents of the union they purport to represent.

ACTION OR DENIAL OF APPLICATION) AND REMEDY 1. Sec. <) R8#e II) Boo; .) IRR2+ : Any applicant union may appeal to the /ureau the
denial of registration by the "egional *ffice, or to the secretary if the denial is by the /ureau, within 7, calendar days from receipt of such decision on grounds of 8 A. grave abuse of discretion G and B. gross incompetence #he appeal shall be filed in the "egional *fficeR/ureau which shall cause the transmittal of records to the /ureauRSecretary within I calendar days from receipt of the appeal. #he /ureauRSecretary shall decide the appeal within 6, calendar days from receipt of the records of the case. 6. Can the "egional *fficeR/ureau e%ercise discretion in the registration of the applicant unionJ 5o. As long as the applicant union complies with all the legal re(uirements for registration, it becomes the *fficesR/ureaus ministerial duty to do register the union. *Hassar vs. EstrellaQ 1A5)A14S lies to compel the registration of an L*

EFFECTS ON FREEDOM OF ASSOCIATION


3hile disaffiliation from a labor union is not open to legal ob0ection, since it is implicit in the freedom of association ordained in the Constitution, a closed shop agreement is a valid form of union security and is not a restriction of the right of freedom of association guaranteed by the Constitution.

%AFL3 v. Se . O# Labor #he re(uirement of registration does not curtail the freedoms of assembly and association. Said freedoms may still be e%ercised with or without registration. #he latter is merely a condition sine (ua non for the ac(uisition of legal personality by labor unions and the possessions of rights and privileges granted by law. #he constitution does not guarantee these rights and privileges, much less legal personality, which are mere statutory creations.

RI 'TS OF LE ITIMATE LABOR OR ANI!ATION


I. ?3at are t3e ri&3t+ o4 #e&iti=ate #a%or or&ani5ationF /R E F O S A F0 A. Act as Re7re+entati$e of its members in collective bargaining B. #o be certified as the ELc#8+i$e representative of all the EEs in an appropriate collective bargaining unit for purposes of collective bargaining. C. #o be furnished by the E", upon written re(uest, with its annual audited 4inancia# +tate=ent+, including the balance sheet and the profit and loss statement, aB 3ithin +, calendar days from the date of receipt of re(uest after the union has been duly recogni$ed by the E" or certified as the sole and e%clusive bargaining representative of the EEs in the bargaining unit, or

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

29

bB 3ithin D, calendar days before the e%piration of the e%isting C/A,or cB )uring the collective bargaining negotiation. D. #o o>n property for the use and benefits of the labor organi$ation and its members. E. #o +8e and be sued in its registered name. F. #o underta'e a## ot3er Acti$itie+ designed to benefit the organi$ation and its members. . &ts income and properties which are directly and e%clusively used for their lawful purposes, shall be 4ree 4ro= taLe+, duties and other assessments. #he e%emptions provided herein may be withdrawn only be a special law e%pressly repealing this provision. #he right to represent EEs in collective bargaining is true only for the union of the ma0ority members of the /4 1ust win certification or consent election A registered union has the re(uisite personality to sue on behalf of its members for their individual money claims TIP ON 'O? TO REMEMBER Art. 212 >3en Ao8 are a+;ed to en8=erate it: 7. LL* has right to participate in Collective bargaining8 -As representative of its members @aB -to be certified as representatives of the employees in the appropriate bargaining unit @bB -#o be furnished the annual audited financial statements, this will aid him in collective bargaining @cB. "egistration gives an LL* a 0uridical personality. #hus as a person, it may8 -own property @dB -sue and be sued @eB -underta'e all activities designed to benefit its members and not contrary to law @fB Special #a% e%emption

6.

+.

II. Can t3e 8nion e44ect a co=7ro=i+e o4 t3e =oneA c#ai=+ o4 >or;er+F 1oney claims due to laborers cannot be the ob0ect of settlement or compromise effected by a union or counsel without the specific individual consent of each laborer concerned. *.aisa!an ng mga Manggaga'a sa La Campana vs. SarmientoIII. MaA a 8nion >ai$e a ri&3t o4 8nion =e=%er+ to rein+tate=ent 7ro$ided 4or in an NLRC deci+ionF 5o, the waiver of reinstatement, must be regarded as a personal right which must be e%ercised personally by wor'ers themselves. (Jag vs. 0LRC) A. EFFECT OF NON(RE ISTRATION 4nion, must comply with all the re(uirements of registration as a legitimate labor organi$ation. *%rote tion <e !nolog" vs. Se . o# Labor @ Emplo"ment-. 9owever, if the union has filed application for registration and has submitted all the legal re(uirements, the fact that it does not yet have the certificate of registration will not annul the designation of the labor union as sole bargaining agent by the virtue of a certification election since the defect is not fatal. *3E Automotive EE5s vs. 0oriel<ropi al Iut EEs 3nion>CB& v <ropi al Iut Food Mar/et7 ( ;7 SCRA 71,

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

30

A local union, being a separate and voluntary association, is free to serve the interest of all its members including the freedom to disaffiliate when circumstances warrant. #he locals are separate and distinct units primarily designed to secure and maintain an e(uality of bargaining power between the employer and their employee-members. A local union owes its creation and continued e%istence to the will of its members and not to the federation to which it belongs. 3hen the local union withdrew from the old federation to 0oin a new federation, it was merely e%ercising its primary right to labor organi$ation for the effective enhancement and protection of common interests. In the absence of provisions in the constitution preventin! disaffiliation of a local union0 a local may sever its relationship with its parent. 5on-compliance with the provision in the 5A#4 Constitution re(uiring the service of three months notice of intention to withdraw did not produce the effect of nullifying the disaffiliation. 2irstly, 5A#4 was not even a legitimate labor organi$ation. &t was not registered with the )epartment of Labor and did not possess and ac(uire the legal personality to enforce its constitution and laws, much less the right and privilege under the Labor Code to organi$e and affiliate chapters or locals. Secondly, the act of non-compliance is premised on purely technical grounds which cannot rise above the fundamental right of self-organi$ation. #he disaffiliation did not violate the C/A provisions. #he #9E4-5A#4, not 5A#4, was recogni$ed as the e%clusive bargaining agent in all matters concerning terms and conditions of employment. 3hile the 5A#4 was recogni$ed as the sole bargaining agent in the chec'-off form, it was only acting as an agent of #9E4. 2inally, while C/A imposes dismissal on an Ee who 0oins another federation, that situation does not obtain in this case, since the entire #9E4 was withdrawing from the federation.

CANCELLATION OF T'E UNION CERTIFICATE RE ISTRATION


Art 2"*. #he certificate of registration of any legitimate labor org whether national or local shall be -canceled by the bureau -if it has reason to believe after due hearing that the said labor org no longer meets one or more of the re(uirements herein prescribed. I. ?3at are t3e &ro8nd+ 4or it+ cance##ation o4 8nion re&i+tration %A t3e B8rea8F 7. 1isrepresentation, false statement or fraud by the union with respect to the re(uired documents submitted to the /ureau. 6. 2ailure to submit the documents within +, days from adoption or ratification of the constitution and by-laws or amendments thereto.

3. 1isrepresentation, false statements or fraud in connection with the election of officers,


minutes of the elections and list of voters of failure to submit these documents within +, days from election Lor from the occurrence of any change in the list of officers of the labor organi$ation *Art. 297-M. C. 2ailure to submit annual financial report within +, days after closing of fiscal year and misrepresentation of fraud in the preparation of the financial report. I. Acting as labor contractor or cabo system. Art. 7,D ! labor only contracting D. Entering into C/As which provide terms and conditions of employment below minimum standards. >. As'ing for or accepting attorneys fees or negotiation fees from E"s. <. *ther than for mandatory activities under this Code, Chec'ing of special assessment or other fees without duly signed individual written authori$ation of members.

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

31

9. 2ailure to submit list of individual members once a year or when re(uired *MACE4
MALLBoo; . R8#e I Sec. 1: @00B Cancellation .roceedings refer to the process leading to the revocation of the le!al personality of a labor organi$ation or a wor'ers association after due process. Cance##ation o4 Re&i+tration 8nder Boo; . o4 i=7#e=entin& r8#e+: Sec. 1 .en8e: -"egional office having 0urisdiction over the place where the respondents principally operates. Sec. 2 ?3o =aA 4i#eF -Any party in interest -E%cept in actions involving Article 6C7, in this case only members of the association @+,V consentB Boo; . R8#e .III Sec. : Revo ation o# legal personalit" o# lo al? !apter$ A federationR national union may revo'e the charter issued to a localR chapter or branch by serving on the latter a verified notice of revocation. ro8nd+: 7. disloyalty 6. other grounds as may be specified in the constitution and by-laws Q &n case revo'ed, the local will lose its legal personality if it fails to register as an independent union before the e%piration of the C/A. @Sec. DB Cancellation of registration means that the union is no longer a LL* &ts 0uridical personality as well as its statutory rights and privileges are suspended, /4# the cancellation does not invalidate an otherwise valid C/A which the union has entered into. 9aving held an illegal stri'e is not a reason to cancel a unions registration Y &t may affect stri'ers and officers only Any party in interest may commence a petition for cancellation of registration, e%cept in actions involving violations of Art. 6C7 which can be commenced only by members of the respondent union. II. If a union declares an ille!al stri*e0 is this a !ood !round for cancellation of union re!istration? 5o. 3hile Art .6+A provides the phrase acting as a labor contractorT or otherwise engaging in any activity prohibited by law, this phrase refers to an activity parta'ing the nature of a labor contractor. #hus, an illegal stri'e is not one of the grounds for cancellation of registration. *Itogon>Sa"o vs Sangilo>Itogin &or/er5s 3nionR8#e+ on TRADE UNION RE ISTRATION: Boo; . R8#e III Sec. 2/III0: #he application for registration of an industry or trade union center shall be supported by the following8 aB #he list of its member organi$ations and their respective presidents and, in the case of an industry union, the industry where the union see's to operateG bB #he resolution of membership of each organi$ation, approved by the /oard of )irectors of such unionG cB #he name and principal address of the applicant, the names of its officers and their addresses, the minutes of its organi$ational meetingRs, and the list of member organi$ations and their representatives who attended such meetingsG and

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

32

dB A copy of its constitution and by-laws and minutes of its ratification by a ma0ority of the presidents of the member organi$ations, provided that where the ratification was done simultaneously with the organi$ational meeting, it shall be sufficient that the fact of ratification be included in the minutes of the organi$ational meeting. +.I INTERNATIONAL ACTI.ITIES OF UNION PRO'IBITION AND RE ULATION I. ?3at acti$itie+ %A a#ien+ are 7ro3i%itedF All aliens, whether natural or 0uridical are strictly prohibited from engaging directly or indirectly in all forms of trade union activities without pre0udice to normal contacts between .hilippine labor unions and recogni$ed international labor centers. #he prohibition does not apply to the formation of labor organi$ations by aliens wor'ing in the country with valid wor'ing permits. @Art. 6DAB

<rade 3nion A tivities ! shall mean 8


7. 6. +. C. I. organi$ation formation and administration of labor organi$ationsG negotiation and administration of C/AsG all forms of concerted union actionG organi$ing, managing or assisting union actionG any form of participation or involvement in representation proceedings, representation elections, union electionsG and 6. other analogous activities. *Art. 218-M II. ?3at acti$itie+ %A a#ien+ are re&8#atedF 5o foreign individual, organi$ation or entity may give any form of assistance, in cash or in 'ind directly or indirectly, to any labor organi$ation, group of wor'ers or any au%iliary thereof, such as cooperatives, credit unions and institutions engaged in research, education or communication, in relation to trade union activities, without prior permission by the Sec. of Labor #his prohibition also applies to foreign donations or other forms of assistance, in cash or in 'ind, given directly or indirectly to any E" or E"s organi$ation to support any activity or activities affecting trade unions. III. ,he stri*e declared by 4nion ; has reached its ECth day. ,a*in! pity on the hun!ry and sic* stri*ers0 < and :0 Arench missionaries0 distributed food and drin*s to the stri*ers. Fas any one committed any ille!al act? Ye+. / and :, distributing food and drin's to the stri'ers violated the prohibition against aliens from engaging directly or indirectly in all forms of trade union activities. #he term trade union activities includes all forms of concerted union actions and analogous activities. *Al antaraArt. 217. Appli abilit" to #arm tenants and rural 'or/ers > #he provisions of this #itle pertaining to foreign orgs and activities shall be deemed applicable li'ewise to all orgs of farm tenants, rural wor'ers, and the li'e8 .rovided, #hat in appropriate cases the Sec of Agrarian "eform shall e%ercise the powers and responsibilities vested by this #itle in the Sec of Labor. +.D UNION(MEMBER RELATIONS NATURE OF RELATIONS'IP #he union may be considered but the agent of its members for the purpose of securing for them fair and 0ust wages and good wor'ing conditions and is sub0ect to the obligation of giving the members as its principals all information relevant to union and labor matters entrusted to it. *Ieirs o# Cruz vs. CIRRI 'TS OF UNION MEMBER /ART. 2110 S8==ari5e t3e %a+ic ri&3t+ o4 8nion =e=%er+ :

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

33

1. Po#itica# ri&3t ! 1embers right to vote and be voted for, sub0ect to lawful provisions on
(ualifications and dis(ualifications.

2. De#i%erati$e and deci+ion(=a;in& ri&3t ! 1embers right to participate in deliberations


on ma0or policy (uestions and decide them by secret ballot.

3. Ri&3t o$er =oneA =atter ! 1embers right against e%cessive fees, right against
unauthori$ed collection of contributions or unauthori$ed disbursementsG the right to re(uire ade(uate records of income and e%penses and the right of access to financial recordsG the right to vote on proposed special assessments and be deducted a special assessment only with the members written authori$ation.

4. Ri&3t to in4or=ation ! 1embers right to be informed about the organi$ations


constitution and by-laws and the C/A and about labor laws. As EEs, the union members retain the right to directly present grievances to the E" at anytime

ISSUES
UNION CONSTITUTION: 3S< Fa ult" 3nion v. 6itonio ( ,7; SCRA 7;2 *7:::#he point to be stressed is that the unions C/L is the fundamental law that governs the relationship between and among the members of the union. &t is where the rights, duties and obligations, powers, functions and authority of the officers as well as the members are defined. &t is the organic law that determines the validity of acts done by any officer or member of the union. 3ithout respect for the C/L, a union as a democratic institution degenerates into nothing more than a group of individuals governed by mob rule. #he importance of a unions constitution and by-laws cannot be overemphasi$ed. #hey embody a covenant between a union and its members and constitute the fundamental law governing members rights and obligations. As such, the unions constitution and by-laws should be upheld, as long as they are not contrary to law, good morals, or public policy. A. ADMISION AND DISCIPLINE OF MEMBERS

1. Art. 21C : A labor organi$ation shall have the right to prescribe its own rules and with
respect to the ac(uisition or retention of membership.

2. Art. 2HH : Any EE, whether employed for a definite period or not, shall, beginning on his
7st day of service, be considered an EE for purposes of membership in any labor union. A. 7. ADMISSION

1. Labor unions are not entitled to arbitrarily e%clude (ualified applicants for membership,
and a closed-up provision would not 0ustify the E" in discharging, or a union in insisting upon the discharge of it, an EE whom the union refuses to admit to membership, without any reasonable ground therefor. #hus, while generally the State may not compel the union to admit the individual as a member, this scenario is not an e%ception to that general rule. *Salunga vs. CIRImportant points in Salun!a >ase ENERAL RULE: Labor union is a ."&?A#E and voluntary organi$ation.

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

34

E-CEPTION: 3hen union has access to employment, e%ample8 closed-shop agreement. #his converts union into one with a public character and thus the government will have a right to in(uire into the rules or business of the union. 2. ,he union)s constitution and by&laws provides that no individual who previously belon!ed to another union may be admitted as member thereof. Is this provision valid? No. 3hile a union is in general free to select its own members, it cannot impose arbitrary and discriminatory conditions for admission to membership. &t is very clear that the provision discriminates against an individual for having e%ercised his right to self-organi$ation. *Al antara5. ,he union constitution and by&laws provides that only (()s with 2 years service in the company are eli!ible for membership therein. Is the provision valid? No. #he provision is an unreasonable restriction on the wor'ers e%ercise of his right to self-organi$ation. &t would have those who have less than 6 years of service without representation in bargaining with the E". *Al antaraRI 'T TO DISCIPLINE Hillar v In iong ( 727 SCRA 999 9EL)8 3hen a labor union affiliates with a mother union, it becomes bound by the laws and regulations of the parent organi$ation. &t becomes sub0ect to the laws of the superior body under whose authority the local union functions. #he constitution, by-laws and rules of the parent body, together with the charter it issues pursuant thereto to the subordinate union, constitute an enforceable contract between the parent body and the subordinate union. 3hen members of a labor union sow the seeds of dissension and strife within the union. 3hen they see' the disintegration and destruction of the very union to which they belong. #hey forfeit their rights to remain as members. .A2L4 acted when, after proper investigation and finding of guilt, it decided to remove the oppositors from the list of members of the Amigo Employees 4nion-.A2L4. A. 6 DUE PROCESS RULES

1. An officer or a member of a labor union is entitled to due process before he can be


e%pelled. #he member of the labor union may be e%pelled only for a valid cause and by following the procedure outlined in the constitution and by-laws of the union. *.apisanan ng mga Mangaga'a vs. 6uga"-

2. ,he union constitution and by&laws provides that a member may be e+pelled from the
union upon a vote of 2D5 of all the members. Is the rule valid? No. #he e%pulsion of a union member cannot be made to depend upon the whims and caprices of cp-members. &t must be founded on some 0ust and serious grounds. *Al antara5. % re!ular (()s were dismissed alle!edly pursuant to a union security clause. ,hey had previously been e+pelled from the union for attemptin! to oust the union leadership0 but they were not !iven an opportunity to e+plain their side. ,he company also did not conduct an investi!ation into the matter. Is the dismissal of the (()s lawful? No. #he union should have given them an opportunity to e%plain their side before e%pelling them. And the company should have complied with procedural due process before dismissing them. *Ferrer vs. 0LRC/. ELECTION OF OFFICERS 6 GUALIFICATION) TENURE AND COMPENSATION i$e t3e r8#e+ o4 t3e La%or Code &o$ernin& 8nion o44icer+ : Art. 211 : #he members shall directly elect their officers, including those of the national union or federation, to which they or their union is affiliated, by secret ballot at intervals of I years.

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

35

5o (ualification re(uirements for candidacy to any position shall be imposed other than membership in good standing.

5o person who has been convicted of a crime involving moral turpitude shall be eligible
for election or appointment as a union officer. LMoral turpitude ! Act of baseness, vileness or depravity in the private of social duties which a men owes to his fellowmen, or to society in general. *<a/ vs. Republi #he officers of any labor organi$ation shall not be paid any compensation other than the salaries and e%penses due their positions as specifically provided in the constitution and by-laws, or in a written resolution duly authori$ed by the ma0ority of all the members at a general membership meeting duly called fort he purpose. Any irregularity in the approval of the resolution shall be a ground for impeachment or e%pulsion from the organi$ation. (#rt. 2$B) GUALIFICATON: 1ember in good standing 5ot convicted of crime of moral turpitude

MANNER OF ELECTION: Secret /allot )irect election &nterval of I years TENURE: I years

Co=7en+ation: :enerally none. /ut allowed if the constitution or by-laws allow it, or a written resolution by a ma0ority of all the union members in a general membership meeting called for that purpose. 3S< Fa ult" v. 6itonio A union election is held pursuant to the unions constitution and by-laws and the right to vote in it is en0oyed *5LH /H 45&*5 1E1/E"S. A union election should be distinguished from a certification election, which is the process of determining, through secret ballot, the sole and e%clusive bargaining agent of the employees in the appropriate bargaining unit, for purpose of collective bargaining. Specifically, the purpose of a certification election is to ascertain whether or not a ma0ority of the employees wish to be represented by a labor organi$ation and, in the affirmative case, by '!i ! particular labor organi$ation. &n a certification election, ALL employees belonging to the appropriate bargaining unit can vote. #herefore, a union member who li'ewise belongs to the appropriate bargaining unit is entitled to vote in said election. 9*3E?E", the reverse is not always trueG an employee belonging to an appropriate unit but who is not a member of the union cannot vote in the union election, 45LESS otherwise authori$ed by the constitution and by-laws. /.7 .OTERS LIST Submission of the EEs names with the /L" as (ualified members of the union not a condition sine 6ua non to enable said members to vote in the election of union officers. Wuestion of eligibility to vote may be determined through the use of applicable payroll period and EEs status. *<an in o vs. Ferrer>Calle=a/.6 DISGUALIFICATION OF CANDIDATES )is(ualification of winning candidates will not automatically result in the assumption of office of those who garnered the second highest number of votes. *Manalad vs. <ra=ano-

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

36

/.+ E-PULSION REMEDY "emedy against erring union officers is not referendum but union e%pulsion. 9owever, reelection of union officers and non-election of complaining union members is convincing show of faith on union officers leadership. *.M% vs. <ra=ano/.C ELECTION IN.ALID

1. 2ree and honest elections are indispensable to the en0oyment of EEs and wor'ers of
their right to self-organi$ation. #his right will be diluted if the election is not fairly and honestly conducted. #hus, elections for union officers attended by grave irregularities are invalid. *Rodriguez vs. 6LR-

2. 3ill failure to comply with the technical re(uirements or formalities in relation to the
election of union officers invalidate the electionJ 5o, as long as it does not appear that such failure resulted in the deprivation of any substantial right or prerogative of anyone or caused the perpetration of fraud or other serious anomaly, or preclude the e%pression and ascertainment of the popular will in the choice of officers. *<imbung o vs. Castro/.I GUALIFICATION OF UNION OFFICERS Atty. " won a big case for the union at the 4niversity of the 3est. 9e became very popular with the union members that they elected him as union president. &s this allowedJ 5o. Atty. " is not an EE of the 4niversity. 9e is dis(ualified from becoming an officer of any union therein. *Al antaraC. MAMOR POLICY MATTER 1. Art. 211 : #he members shall determine by secret ballot, after due deliberation, any (uestion of ma0or policy affecting the entire membership of the organi$ation, unless the nature of the organi$ation or force ma0eure renders such secret ballot impractical. &n which case the board of directors of the organi$ation may ma'e the decision in behalf of the general membership. 2. G0 a member of a union was surprised to *now that the union had disaffiliated with the national federation. Fas G any !round to complain? Ye+. As union member, he has the right to participate, by secret ballot, to determine any (uestion of ma0or policy affecting the entire membership. )isaffiliation is a ma0or policy issue. *Al antara). UNION FUNDS i$e t3e r8#e+ o4 t3e La%or Code &o$ernin& 8nion 48nd+ : 7. #he members shall be entitled to full and detailed reports from their officers and representatives of all financial transactions. 6. 5o officer, agent or member of a labor organi$ation shall collect any fees, dues or other contributions in its behalf or ma'e any disbursement of funds unless he is duly authori$ed by the constitution and by-laws. +. Every payment of fees, dues or other contributions by a member shall be evidenced by a receipt signed by the officer or member ma'ing the collection and entered into the record of the organi$ation. C. #he funds of the organi$ation shall not be applied for any purpose or ob0ect other than those e%pressly provided by its constitution and by-laws or those e%pressly authori$ed by written resolution adopted by a ma0ority of the members at a general meeting duly called for the purpose.

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

37

I. Every income or revenue of the organi$ation shall be evidenced by a record showing its source or by a receipt from the person to whom payment is made. D. Any action involving the funds of legitimate labor organi$ation shall prescribe after + years from date of submission of the annual financial report to the )*LE or from date the same should have been submitted, whichever comes earlier. >. #he treasurer shall render a true and correct account of all moneys received and paid by him since he assumed office or since the last day on which he rendered such account. #he account shall be duly audited and verified by affidavit and a copy shall be rendered by the )*LE. #he rendering of the account shall be made 8 a. At least once a year and within +, days after the close of its fiscal year. b. At such other times as may be re(uired by a resolution of the ma0ority of the members of the organi$ation. c. 4pon vacating his office. <. #he boo's of accounts and other financial records shall be open to inspection by any officer or member thereof during office hours. A. 5o special assessment or other e%traordinary fees may be levied upon the members of a labor organi$ation unless authori$ed by a written resolution of a ma0ority of all the membership meeting duly called for the purpose. a. #he secretary shall record the minutes of the meeting which shall be attested by the president. 7,. *ther than for mandatory activities under this Code, no special assessments, attorneys fees, negotiation fees or any other e%traordinary fees may be chec'ed off from the amount due to an EE without an individual written authori$ation duly signed by the EE. 77. #he Sec. of Labor or his duly authori$ed representative is hereby empowered to in(uire into the financial activities of the legitimate labor organi$ation upon filing of a complaint under oath and duly supported by a written consent of at least 6,V of the total membership to determine compliance with the law. a. Such in(uiry shall not be conducted during the D,-day freedom period within the +, days immediately preceding the date of election of the union officials. ).7 SOURCE( PAYMENT(ATTORNEYS FEES Art. 222: A77earance+ and 4ee+(((aB 5on-lawyers may appear before he Commission or any Labor Arbiter only8 7. &f they represent themselvesG or 6. &f they represent their organi$ation or members thereof. bB 5o attorneys fees, negotiation fees or similar charges of any 'ind arising from any collective bargaining negotiations or conclusion of the collective agreement shall be imposed on any individual member of the contracting unionG .rovided, however, that attorneys fees may be charged a!ainst union funds in an amount to be a!reed upon by the parties. Any contract, agreement or arrangement of any sort to the contrary shall be null and void.

1. .ayment of attorneys fees is an obligation of the union and not of the EEs. 1oney of
EEs are not to be used to pay attorneys fees of a lawyer. *%a i#i 6an/ vs. Clave2. #tty. S was hired by a union to assist its president in ne!otiatin! a ><#. #fter the e+ecution of the ><#0 #tty. S sou!ht to collect his attorney)s fees out of the benefits due to the (()s by virtue of the a!reement. Is this proper? No. Atty. Ss claims for attorneys fees should be satisfied out of the funds of the union. *AL3 vs. 0LRC-

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

38

Attorneys fees may not be deducted or chec'ed off from any amount due to an EE without his consent ESCE.# for mandatory activities under the code. Even negotiation fee in collective bargaining is an obligation of the union and not of a particular member D.2 So8rce(PaA=ent(S7ecia# A++e++=ent 1. 3ritten resolution of a ma0ority of all members of the union at a general membership meeting, re(uired for validity of levy of a special assessment. *%ala ol vs. Ferrer> Calle=a6. #he law does not re(uire that this authori$ation must be in individual form. @&d.B 5. ,he <oard of 8irectors of a union passed a resolution assessin! every union member of 72.CC to be used in the purchase of a birthday !ift for the coura!eous lawyer of the union. ,he union members refused to pay assessment. Is the refusal /ustified? Ye+. #he assessment was not authori$ed by a written resolution of a ma0ority of all the members at a general membership meeting for the purpose. $. #t a !eneral membership meetin!0 a ma/ority of the members of the union voted for a written resolution assessin! each member 7%.CC. # member who did not vote affirmatively and did not e+ecute an individual written authori'ation refused to pay the same. Is his refusal /ustified? No. 9e is bound by the resolution. 9owever, the absence of a written chec'-off authori$ation means that the assessment cannot be deducted by the E" from his wages or other amounts due him, but he is still obliged to pay the same. *Al antara An employee who collects a special assessment without being armed with the re(uired general assembly resolution and the written authori$ation from each of the union members may be charged with ma'ing illegal deductions from the EEs salary.

Babriel v. Se . O# Labor ( ,2; SCRA 291 *2888#rt. 2$B has three re6uisites for the validity of the special assessment for the unions incidental e+penses: 7B authori$ation by -written resolution -of ma0ority of ALL the members -at the general membership meeting called for that purpose 6B Secretarys record of the minutes of the meetings attested to by the president. +B &ndividual written authori$ation for chec'-off duly signed by the employees concerned. E. MANDATORY ACTI.ITY Art. 211 : *ther than for the mandatory activities under the Code 8 no special assessment, attorneys fees, negotiation fees or any other e%traordinary fees may be chec'ed off from any amount due to an EE without an individual written authori$ation duly signed by the EE. E.7 DEFINITION ?3at i+ a =andatorA acti$itAF =udicial process of settling dispute laid down by law.

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

39

Heng o v <ra=ano 71, SCRA 722 *7:;:9EL)8 Attorneys fees may not be deducted or chec'ed off from any amount due to an employee without his written consent e%cept for mandatory activities under the Code. A mandatory activity has been defined as a 0udicial process of settling dispute laid down by the law. Amicable settlement entered into by the management and the union can not be considered as a mandatory activity. 4nion filed a claim for emergency cost of living allowance and other benefits however, case never reached its conclusion in view of the parties agreement. &t is not also shown that Atty. /en0amin Sebastian was instrumental in forging the said agreement on behalf of the union members. 2urthermore, Kapasiyahan did not confer upon #imbungco the power to deduct 7,V of the .7I,,,,,.,, despite the alleged approval of the ma0ority of the union wor'ers. Law re(uires the individual written authori$ation of each employee concerned, to ma'e the deduction of attorneys fees valid. /oo' &&&, "ule ?&&&, Section && of the &mplementing "ules does not apply. #his provision envisions a situation where there is a 0udicial or administrative proceedings for recovery of wages. Law allows a deduction for attorneys fees of 7,V from the total amount due to a winning party. 2ringe benefits received by the union members consist of bac' payments of their unpaid emergency cost of living allowances which are totally distinct from their wages. Allowances are benefits over and above the basic salaries of the employees. Such allowances are e%cluded from the concept of salaries or wages. .enalty of e%pulsion from the union presidency imposed upon #imbungco is 0ustified. E.6 CBA NE OTIATION

1. .lacement of re-negotiation for a C/A under compulsory process does not ma'e it a
mandatory activity as to authori$e chec'-off from EEs salary for attorneys fees without written, signed authori$ation. *Balvadores vs. <ra=ano-

2. ;ay a union collect union service fee for its appearance in labor proceedin!?
Ye+. #his is in accordance with the liberali$ed scheme and theory of representation for labor. *RC%I vs. Se . o# Labor and Emplo"ment2. UNION INFORMATION Art. 211 : &t shall be the duty of any labor organi$ation and its officers to inform its members on the 8 7. .rovisions of its constitution and by-laws. 6. C/A +. .revailing labor relations system and C. All their rights and obligations under e%isting labor laws. 2or this purpose, registered labor organi$ations may assess reasonable dues to finance labor relations seminars and other labor education activities. @"esponsibility of officers for dissemination of union information and for respect of the law is greater than that of the members. *0L3 vs. Continental CementENFORCEMENT AND REMEDIES 6 PROCEDURE AND SANCTIONS

1. Art. 211 : Any violation of the above rights and conditions of membership shall be a
ground for cancellation of union registration or e%pulsion of officer from office, whichever is appropriate. At least +,V of all the members or any member or members especially concerned may report such violation to the /ureau. *nly if the issue involves the entire membership of the union Criminal and civil liabilities arising from violations of above rights and conditions of membership shall continue to be under the 0urisdiction of ordinary courts.

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

40

2. ?3en i+ t3e "DN reE8ire=ent not neededF 3hen such violation directly affects only 7
or 6 members, then only 7 or 6 members would be enough to report such violation and see' redress. *.apisanan ng mga Manggaga'a vs. 6uga"A. MURISDICTION 6 E-'AUSTION INTERNAL REMEDIES &. &n case of intra-union disputes, redress must first be sought within the organi$ation itself in accordance with its constitution and by-laws. *Hillar vs. In iong&&. ?3at are t3e eLce7tion+ to t3e eL3a8+tion o4 interna# re=edie+F 7. 2utility of intra-union remedies. 6. &mproper e%pulsion procedure. +. 4ndue delay in appeal as to constitute substantial in0ustice. C. 3hen action is for damages. I. Lac' of 0urisdiction of the investigating body. D. 3hen action of administrative agency is patently illegal, arbitrary and oppressive. >. 3hen issue involves is a pure (uestion of law. <. 3here administrative agency has already pre0udged the case. 9. 3here the administrative, agency was practically given an opportunity to act on the case but did not. *Azu ena+.> UNION AFFILIATION : LOCAL AND PARENT UNION RELATIONS &. Sec. ") R8#e II) Boo; .) IRR2+ : An affiliate of a labor federation or national union may be a local or an independently registered union. RULES: 7. #he labor federation or national union shall issue a charter certificate which shall be submitted to the /ureau within +, days from issuance. 6. An independently registered union shall be considered an affiliate after submission to the /ureau of the contract or agreement of affiliation within 6, days after its e%ecution. +. All e%isting labor federations or national unions are re(uired to submit a list of their affiliates, their addresses and including the names and addresses of their respective officials. C. #he local or chapter of a labor federation or national union shall maintain a constitution and by-laws, set of officers and boo's of accounts. I. 5o person who is not an EE or wor'er of the company or establishment where an independently registered union, affiliate, local or chapter of a national federation or national union operates shall henceforth be elected or appointed as an officer of such union, affiliate, local or chapter. /Under DO .No. C) 1CCH0 Boo; . R8#e .I Sec. 1 C3arterin& and creation o4 a #oca#Bc3a7ter: A duly registered federation or national union may )&"EC#LH C"EA#E a localRchapter by submitting to the "egional *ffice or to the /ureau two @6B copies of the following8 d. a !arter erti#i ate &SS4E) /H labor federation or national union indicating the creation or establishment of a local or chapterG e. #he names of the localR chapters officers, their addresses, and principal office of the localRchapterG and f. #he localRchapters constitution and by-lawsG provided that where the localRchapters constitution and by-laws is the same as that of the federation or national union, this fact shall be indicated accordingly.

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

41

A## the foregoing supporting re(uirements shall be certified under oath by the Secretary or #reasurer of the LocalRchapter and attested to by its .resident. Sec. " AcE8i+ition o4 #e&a# 7er+ona#itA %A #oca#Bc3a7ter 6 A localRchapter constituted in accordance with section 7 of this "ule shall ac(uire legal personality from the date of filing of the complete documents enumerated therein. 4pon compliance with all the documentary re(uirements, the "egional *ffice or /ureau shall issue in favor of the localRchapter a certificate indicating that it is included in the roster of legitimate labor organi$ations. Sec. 1 A44i#iation o4 an Inde7endent Union An independent union shall be considered an affiliate of a federation or national or industry union upon filing by the later to the "egional *ffice or /ureau of8 7B two @6B copies each of verified resolution of affiliation, 6B ratified by a ma0ority of the members of the former, +B and a resolution of acceptance by the later. AFFILIATIONI PURPOSE OFI NATURE OF RELATIONS A. NATURE OF RELATIONS'IP Q #he mother union is merely an agent of the local union. *0AFL3 vs. 0orielSugbuanon Rural 6an/ v. Laguesma ( ,29 SCRA 922 *2888Locals are separate and distinct units primarily designed to secure and maintain an e(uality of bargaining power between the employer and their employee-members in the economic struggle for the fruits of the 0oint productive effort of labor and capital. Association of the locals into the national union was in furtherance of the same end. #hese associations are consensual entities capable of entering into such legal relations with their members. #he essential purpose was the affiliation of the local unions into a common enterprise to increase by collective action the common bargaining power in respect of the terms and conditions of labor. Het the locals remained the basic units of association. A local union maintains its separate personality despite affiliation with a larger national federation. <ropi al Iut v. <ropi al Iut ( 7;7 SCRA 71, *7::8#he right of a local union to disaffiliate from its mother federaton is well-settled. A local union, being a SE.A"A#E and ?*L45#A"H association, is free to serve the interest of all its mebers including the freedom to disaffiliate when circumstances warrant. #he right is consistent with the constitutional guarantee of freedom of association. /. EFFECT 6 LE AL PERSONALITY Affiliation by a duly registered local union with a national union or federation does not ma'e the local union lose its legal personality. 2urthermore, notwithstanding affiliation, the local union remains the basic unit to serve the common interest of all its members. *Adamson vs. CIR Contract of affiliation is an enforceable contract Affiliation by a duly registered union with a national union or federation does not cause the local union to lose its legal personality W.- a union of supervisors affiliated with a federation with a local affiliated consistin! of 2 H A ((s can be validly represented by the federation? #he SC says that the federation may. &n the C/, the federation acts merely as an agent, the local union of supervisors remains to be the principal. #hus, the fact that

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

42

the federation is composed of both unions of supervisors and "N2 EEs has no effect on the personality of the local union of supervisors, the local union does no lose its personality of independence by affiliation. &f the supervisors does 5*# supervise the "N2 EEs. Filipino %ipe and Foundr" Corporation v. 0LRC ( ,7; SCRA +; #he mother union, acting for and in behalf of its affiliate, had the status of an agent while the local remained the basic unit of the association, free to serve the common interest of all its members sub0ect only to restraints imposed by the constitution and by the by-laws of the association. #he same is true even if the local is not a legitimate labor organi$ation. Allian e v. Sama!an ( 7::+ A local labor union is a separate and distinct unit primarily designed to secure and maintain an e(uality of bargaining power and their employee-members. A local union does not owe its e%istence to the federation with which it is affiliated. &t is a separate and distinct voluntary association owing its creation to the will of its members. #he mere act of affiliation does not divest the local union of its own personality, neither does it give the mother federation the license to act independently of the local union. &t only gives rise to a contract of agency where the former acts in representation of the latter. SUPER.ISOR( RAN9 AND FILE UNION AFFILIATION R8#e(a44i#iation ,his case !ives the rule: Atlas Lit!ograp!i v Laguesma *282 SCRA 72- 7::2 9EL)8 #he definition of managerial employees is limited to those having authority to hire and fire while those who only recommend effectively the hiring and firing or transfers of personnel would be considered as closer to ran' and file employees. #he e%clusion, therefor, of middle level e%ecutives from the category of management employees brought about a third classification, supervisory employees, who are allowed to form their own union but are not allowed to 0oin the ran' and file union due to conflicts in interest. A local union of supervisory employees may be allowed to affiliate with a national federation of labor organi$ations of ran' and file employees. 3hat the law prohibits is that supervisory employees 0oin a ran' and file union. #he national federation would be representing the respective interests of the 6 groups separately. ,hese two cases !ive the reason behind the rule above: Adamson vs CIR ( 721 SCRA 2+; *7:;9&ndividuals employed as supervisors shall not be eligible for membership in a labor organi$ation of employees under their supervision but may form separate organi$ations of their own. #he supervisory employees of an employer cannot 0oin any labor organi$ation of employees under their supervision but may validly form a separate organi$ation of their own. &t cant be construed that personalities of the + unions are so merged with the mother federation that for one difference or another they cannot pursue their own ways, independently of the federation.

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

43

Adamson and Adamson Supervisory 4nion and the Adamson and Adamson, &nc., Salesmen Association @223B, have their own respective constitutions and by-laws. #hey are separately and independently registered of each other. /oth sent their separate proposals for collective bargaining agreements with their employer. #here is nothing in &ndustrial .eace Act which provides that a duly registered local union affiliating with a national union loses its legal personality, or its independence. Locals are separate and distinct units primarily designed to secure and maintain an e(uality of bargaining power between the employer and their employee-members. Locals remain the basic units of association, free to serve their own and the common interest of all. &nclusion of 223 in the registration is merely to stress that they are its affiliates at the time of registrations. &t does not mean that said local unions cannot stand on their own. 4e la Salle Med v. Laguesma ( 2:9 SCRA 797 #he affiliation of 6 local unions in a company with the same national federation is not by itself a negation of their independence since in relation to an employer, the local unions are considered as the principal, while the federation is deemed as the be merely an agent. LOCAL UNION DISAFFILIATION A. NATURE RI 'T DISAFFILIATION #he right of a local union to disaffiliate from its mother union is consistent with the constitutional guarantee of freedom of association. *Hol/s !el Labor 3nion vs. 6LR A local union which has affiliated with a federation is free to sever such affiliation anytime and such disaffiliation cannot be considered disloyalty in the absence of specific provision in the constitution and by-laws prohibiting disaffiliation. &n the absence of enforceable provisions in the federations constitution preventing disaffiliation of a local union, a local may sever its relationship with its parent. 3hen a union which is not independently registered disaffiliates from the federation, it is not entitled to the rights and privileges granted to a LL* &t cannot file a petition for certification election 5either can it bargain with the E" nor stage a stri'e #he EEs chec'-off authori$ation , even is declared irrevocable, is good only as long as they remain members of the union. 3hen a local union disaffiliates from a national union or federation, the latter ceases to be entitled to chec'-off dues. *nce the fact of disaffiliation is demonstrated beyond doubt a certification election is the most e%peditious way of determining which L* is the e%clusive bargaining representative. /. RULE 6 LE ALITY ACT ( DISAFFILIATION #he validity of the legal union disaffiliation is to be determined on the basis of the provisions of the constitution and by-laws of the local union with respect to the process of disaffiliation. *Libert" Cotton Mills &or/ers 3nion vs. Libert" Cotton MillsC. MINORITY DISAFFILIATION :enerally, a labor union may disaffiliate from the mother union only during the D,-day period immediately preceding the e%piration of the C/A *<andua" vs. 0LRC-. 9owever, a mere minority cannot file a petition for a union disaffiliation, even within the prescribed D,-day period before the e%piry of an e%isting C/A. *Hillar vs. In iong 5eed to be effected by the ma0ority of the members in the bargaining unit

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

44

). EFFECT OF DISAFFILIATION 6 SUBSTITUTIONARY DOCTRINE 3hat is the +8%+tit8tionarA doctrineF EEs cannot revo'e the validly e%ecuted C/A with their E" by the simple e%pedient of changing their bargaining agent. *0AFL3 vs. 0oriel#hus, the C/A continued to bind the members of the new or disaffiliated and independent union up to the C/As e%piration date. *Asso iated &or/ers 3nion vs. 0LRC- 9owever, the substitutionary doctrine is not applicable to the personal underta'ing of the deposed union i.e. no-stri'e stipulation. *6enguet Consolidated vs. %AFL3/ut may negotiate to shorten the period of validity

Section 1. T'E APPROPRIATE BAR AININ


C.7 LA? AND DEFINITION

UNIT

De4ine t3e a77ro7riate %ar&ainin& 8nit : :roup of EEs of a given E", comprised of all or less than all of the entire body of EEs, consistent with the e(uity to the E", indicated to be the best suited to serve the reciprocal rights and duties of the parties under the collective bargaining provisions of the law. *SMC vs. Laguesma- 3ithin one unit there may be one or more unions, but for bargaining with the E" only one union ! the ma0ority of incumbent union ! should represent the whole bargaining unit. *Azu enaDe72t Order No. C /+ 1CCH0) R8#e 1) Sec. 1 /E0 @Bar&ainin& UnitK refers to a group of Employees -sharing mutual interests within a given E" unit, -comprised of all or less than all of the entire body of Employees in the E" unit or any +7eci4ic occ87ationa# or &eo&ra73ica# &ro87in& within such E" unit. ?3at i+ t3e 48nction o4 an a77ro7riate %ar&ainin& 8nitF 7. #o act as a S*?E"E&:5 in relation to the CE and C/A 6. &t is an ELEC#&*5 )&S#"&C#. &t mar's the boundaries of those who may participate in a certification election. +. &t is an Economic 4nit. Arom the readin! of article 2%%: its function is to select or designate a labor organi$ation to represent them in collective bargaining. C.6 DETERMINATION OF APPROPRIATE BAR AININ FACTORS 6 UNIT DETERMINATION <!e #undamental #a tors in determining t!e appropriate are $ O? A P EP 7. 3ill of the EEs. olle tive bargaining unit

UNIT

6. Affinity and unity of the EEs interest, such as substantial similarity of wor' and duties, or similarity in compensation and wor'ing conditions. +. .rior collective bargaining history. C. Similarity of employment status, such as temporary, probationary and seasonal EE s. Among these factors, the Supreme Court has consistently ruled that the test of grouping is mutuality or commonality of interests. #he EEs sought to be represented by the collective bargaining agent must have substantial mutual interests in terms of employment and wor'ing conditions as evinced by the type of wor' they perform. *SMC vs. Laguesma- &n this respect, the basic test of an asserted bargaining units acceptability is whether or not it is fundamentally the combination which will best assure to all the EEs the e%ercise of their collective bargaining rights. *6el" a vs. Ferrer>Calle=a-

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

45

7. &n ma'ing 0udgments about ommunit" o# interest in these different settings, the /ureau of Labor and "elation will loo' to such factors as 8 7. Similarity in the scale and manner of determining earnings. 6. Similarity in employment benefits, hours of wor', and other terms and conditions of employment. +. Similarity in the 'inds of wor' performed. C. Similarity in the (ualifications, s'ills and training of EEs. I. 2re(uency of contact or interchange among the EEs. D. :eographic pro%imity. >. Continuity or integration of production processes. <. Common supervision and determination of labor-relations policy. A. 9istory of collective bargaining. 10. E%tent of union organi$ation. *Azu enaU.P. $. Ferrer(Ca##eQa ) 211 SCRA 1:1 /1CC20 9EL)8 A bar!ainin! unit is a group of Employees, comprised of all or less than all of the entire body of Employees, which the collective interest of all the Employees, consistent wR e(uity to the E", indicate to be the best suited to serve the reciprocal rights N duties of the parties under the C/ provisions of the law. &n De=ocratic La%or A++oc $. Ce%8 Ste$edorin& Co., there are factors wRc must be satisfied N considered in determining the ."*.E" 45&#. "othenberg mentions8 7B will of the Employees, 6B affinity N unity of Employees interest, such as substantial similarity of wor's and duties or similarity of compensation N wor'ing conditions, +B prior C/ history and CB employment status i.e. temporary, seasonal, N probationary Employees. #he #ES# of grouping is C*1145&#H or 14#4AL&#H of &5#E"ES#S because the basic test of an asserted bargaining units ACCE.#A/&L&#H is won it is fundamentally the combination wRc will best assure to all Employees the e%ercise of their C/ rights. QQQ #a'e note8 #his is related to the policy of the law in ensuring the right to collective bargain. TA9E NOTE 4ro= t3e Pro4e++or2+ Lect8re: -#he law is loo'ing only for what is ."*.E" *" A.."*."&A#E. #he law is 5*# loo'ing for the best. -RATIONALE OF T'E COMMUNITY OR MUTUALITY OF INTEREST TEST: :reater chance of success for the collective bargaining process.

&llustration of .rof.8 A group of ran' and file of old employees can be separated from a ran' and file of young employees, especially if the issue involved in the collective bargaining would be to choose between salary raise or a pension plan. #he two groups do not have the same interest, thus it will be harder for them to bargain. ELEMENTS OF AN APPROPRIATE BAR AININ UNIT: 7. C*1.*S&#&*5 -All or less than all of the entire body of employees 6. EW4&#H -+. .4".*SE -*f employees8 A.'.a U Collective interest of employees consistent with the e(uity of the employer.

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

46

--

to serve the reciprocal rights N duties of the parties under the C/ provisions of the law.

Q #he prime element in determining 3*5 a given group of EEs constitutes a proper /4 is whether it will without ine(uity to the E" best serve all EE in the e%ercise of their bargaining rights. Can Ao8 3a$e a 7er=anent %ar&ainin& 8nitF 5o. An appropriate bargaining unit depends on the factors that are influenced by the mar'et place. #he bargaining unit is designed to maintain the mutuality of interest among the employees in such unit. #hus a reason to dissolve, change or e%pand a certain bargaining unit is when #9E &5#E"ES# /E#3EE5 :"*4.S 9AS C9A5:E) *?E" #&1E. 2. # ci!ar manufacturin! company has I departments0 namely administrative0 raw leaf0 ci!ar0 ci!arette0 en!ineerin! and !ara!e0 dispensary and sales. ;ay the ran*&and&file in the administrative0 sales and dispensary be !rouped separately from the ran*&and&file of the other departments? Ye+. #hey are engaged in wor' different from those performed in the other departments. #hus, they have a community of interest different from that of the other departments. *Al!ambra vs. %AFL35. :olden Aarm has 2 sets of (()s : monthly&paid clerical wor*ers and daily&paid a!ricultural wor*ers. ;ay the monthly&paid (()s constitute a separate bar!ainin! unit? Ye+. #he monthly-paid EEs have very little in common with the daily-paid EEs in terms of duties and obligations, wor'ing conditions, salary rates, and s'ills. *Bolden Farms vs. Se . o# Labor$. ;ay the non&academic personnel of 47 be /oined with the academic personnel? No. #he 6 groups do not have community or mutuality of interests. *3% vs. Ferrer> Calle=a'ISTORY San Miguel Corp. v. Laguesma ( 2,+ SCRA 2:2 *7::99EL)8 .rior collective bargaining history is not conc#8+i$e or determinative of what constitutes the appropriate bargaining unit. #he test of grouping is mutuality or commonality of interest. #he Employees sought to be represented by C/ agent must have substantial mutual interests in terms of employment and wor'ing conditions as evinced by the type of wor' they perform. #here is similarity of employment status for all sales personnel. #hey have the same duties, responsibilities, compensation and wor'ing conditions. S1A cant insist that each sales office should constitute one bargaining unit. #here is meager number of sales personnel in each sales office. Even the whole bargaining unit sought to be represented only consists of II employees. &t would not be for the best interest to fractionali$e them further. &t is not the convenience of the employer that constitutes the determinative factor in forming the bargaining unit. Beograp!" K Lo ation 6enguet Consolidated In . v. 6obo/ Lumber=a / Assn. ( 78, % 7728 *2;9EL)8 #he court below is correct in concluding that the system of having one collective bargaining unit for each camp should be maintained and continued for the following reasons8 Such system had operated satisfactorily.

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

47

#he prime element in determining whether a given group of employees constitute a proper bargaining unit is whether it will, without ine(uity to the employer, best serve all employees in the e%ercise of their bargaining rights. &n the present case the separation between the camps and the different 'inds of wor' in each all militate in favor of the present system of separate bargaining units since the problems and interest of the wor'ers are peculiar in each camp or department. #a'e note8 this case is also based on historical factors. Corporate Entities Indo73i# TeLti#e Mi##+ ?or;er+ Union $. Ca#ica ) 2D: SCRA <CH /C20 2AC#S8 #he &ndophil #e%tile 1ills 3or'ers 4nion and &ndophil #e%tile e%ecuted a C/A which provided that the C/A shall apply to the company)s e+tensions and e+pansions. &ndophil Acrylic @39&C9 &S A5*#9E" C*1.A5HB was formed. &ts wor'ers unioni$ed and another C/A was e%ecuted. &ndophil #e%tile 1ills 3or'ers 4nion claimed that Acrylic should be considered an e%tension of &ndophil te%tile and therefore the C/A e%ecuted by &ndophil te%tile and the 4nion should cover &ndophil Acrylic. &SS4E8 3*5 the operation in &5)*.9&L AC"HL&C is an e%tension or e%pansion of &ndophil #e%tile 1ills. 9EL)8 &ndophil AC"HL&C is 5*# an e%tension of &5)*.9&L #ES#&LE. #hus the C/A of &ndophil te%tile, cannot apply to &ndophil Acrylic. 7. #he e%istence of a bonafide business relationship between Acrylic and &ndophil #e%tile is not a proof of being a single corporate entity because the services which are supposedly provided by #e%tile to Acrylic are A4S&L&A"H SE"?&CES or activities which are 5*# ESSE5#&AL in the actual production of Acrylic. #he essential services are discharged e%clusively by Acrylic personnel under the control and supervision of Acrylic managers and supervisors. 6. 4iatagon Labor Federation v. Ople BR L> 999:,>:9 *7:;8- $ two corporations cannot be treated as single bargaining units even if their businesses are related. &t submits that the fact that there are as many bargaining units as there are companies in a conglomeration of companies is a positive proof that a corporation is endowed with a legal personality )&S#&5C#LH &#S *35, independent and separate from other corporations. +. 4nli'e &ndophil #e%tile, &ndophil Acrylic cannot manufacture te%tile while &ndophil #e%tile Cannot buy or import yarn. #hus this shows that &ndophil Acrylic is not an alter ego or an ad0unct or business conduit of &ndophil #e%tile because it has a separate legitimate purpose. C. 4nder the doctrine of piercing the corporate veil, when valid grounds e%ist, the legal fiction that a corporation is an entity with a 0uridical personality separate and distinct from another may be disregarded. )octrine applies when the fiction defeats public convenience, 0ustifies wrong, protects fraud or defends crime. I. #he fact that the businesses are related, that some of the employees are the same persons wor'ing in the other company and the physical plants, offices and facilities are in the same compound arent sufficient to pierce the corporate veil of Acrylic. D. &n 3mali vs CA, legal corporate entity is disregarded only if it is sought to hold the officers and stoc'holders directly liable for a corporate debt or obligation. #he union in this case does not see' to impose a claim on the members of Acrylic. >. Lastly it is grave abuse of discretion to treat 6 companies as a single bargaining unit when these 6 companies are indubitably distinct entities with separate 0uridical personalities.

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

48

San Miguel Corp. Emplo"ees5 3nion v. Con#esor ( 2+2 SCRA ;7*7::+San 1iguel Corporation was originally one company composed of four operating divisions namely8 7. beer, 6. pac'aging, +. magnolia, C. feeds and livestoc'. San 1iguel Corporation employees for ALL )&?S&*5S were represented by San 1iguel Corp employees union.#:3*. San 1iguel underwent a restructuring. As a conse(uence of this 1agnolia and 2eeds N livestoc' )ivision were spun-off and became two separate and distinct corporations. &SS4E8 3*5 the employees of the two new corporations @1agnolia Corp N San 1iguel 2oodsB should still remain in the same bargaining unit and be included & the old bargaining unit of the old S1CJ 9EL)8 5o. Employees in the 1agnolia Corporation and San 1iguel 2oods may form a separate bargaining unit. 7. #he transformation of the companies was a management prerogative and business 0udgment which the courts cannot loo' into unless it is contrary to law, public policy or morals. 5either can we impute any bad faith on the part of S1C to 0ustify the application of the doctrine of piercing the corporate veil. 6. Each of the companies are run by, supervised and controlled by different management terms including separate human resourceRpersonnel managers. Each company enforces its own administrative and operational rules. Each entity maintains separate financial statements and are is audited separately from the other. +. 5o mutuality of interest anymore between corporations8 Considering the spin-offs, the companies would conse(uently have their respective and distinctive concerns in terms of the nature of wor', wages, hours of wor' and other conditions of employment. &nterests of employees in the different companies perforce differ. S1C is engaged in the business of beer manufacturing. 1agnolia is involved in the manufacturing and processing of dairy products while S12& is involved in the production of feeds and processing chic'en. C. #he nature of their products and scales of business may re(uire different s'ills which must necessarily be commensurate by different compensation pac'ages. #he different companies may have different volumes of wor' and different wor'ing conditions. 2or such reason, the employees of the different companies see the need to group themselves together and organi$ed themselves into distinctive and different groups. Ta;e note: #he two cases cited the case of 4iatagon Labor Federation Lo al 778 o# t!e 3LB&% v. O%LE *787 SCRA 2,9( 7:;8B N the .rofessor discussed the case in class, here are the relevant portions8 #he fact that their businesses are related and that the 6+D employees of :eorgia .acific &nternational Corporation were originally employees of Lianga /ay Logging Co. &nc. is not a 0ustification for disregarding their separate personalities. 9ence, the 6+D employees, who are now attached to :eorgia .acific &nternational Corporation, should not be allowed to vote in the certification election at the Lianga /ay Logging Corporation, &nc. #hey should vote at a separate certification election to determine the collective bargaining representative of the employees of :eorgia .acific &nternational Corporation. Ta;e note: #he above three cases were distinguished by the .rofessor with the case of .hil Scouts ?eterans. Management %!il. S outs Heterans v. <orres ( 229 S +;2 *:,#his case involved three companies @.S?S&A, :?1, N AS)AB and only one union @423B. &SS4E8 3hether or not a S&5:LE petition for certification election or for recognition as the S*LE and ESCL4S&?E bargaining agent can validly or legally be filed by a labor union in three

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

49

@+B corporations each of which has a separate and distinct legal personality instead of filing three @+B separate petitionsJ 9EL)8 Hes. 7. #he securities agencies concerned @.S?S&A, :?1, N AS)AB do not e%ist and operate separately and distinctly from each other with different corporate directions and goals. All the cross-lin'ing of the three agencies command, control and communication systems indicate their unitary corporate personality. a. #he security agencies are managed through the 4tilities 1anagement Corporation with all of their employees drawing their salaries and wages from said entity. b. Agencies have common and interloc'ing incorporators and officers. c. .S?S&A, :?1 and AS)A employees have a single 1utual /enefit System and followed a single system of compulsory retirement. d. 5o e%planation was given why the security guards of one agency could easily transfer from one agency to another and then bac' again by simply fillingup a common pro forma slip called E"e(uest for #ransferE. e. .S?S&A, :?1 and AS)A always hold 0oint yearly ceremonies such as the E.:A Annual Awards CeremonyE. f. &n emergencies, all .S?S&A )etachment Commanders were instructed in a memorandum to get in touch with the officers not only of .S?S&A but also of :?1 and AS)A. 6. ?eil of corporate fiction should be lifted for the purpose of allowing the employees of the three agencies to form a single labor union. Employees need not file three separate petitions for certification election. All of these could be covered in a single petition. <est 4unlop Slazenger In . v. Se retar" o# Labor and Emplo"ment ( ,88 SCRA 728 *7::;A unit to be appropriate must affect a grouping of employees who have substantial, mutual interests in wages, hours, wor'ing conditions and other sub/ects of collective bar!ainin!. 6el" a Corporation v. Ferrer>Calle=a ( 7+; SCRA 7;9 *7:;;Among the factors considered in 4emo rati Labor Asso iation v. Cebu Stevedoring are8 7. will of employees @:lobe )octrineBG 6. affinity and unity of employees interest, such as substantial similarity of wor' and duties or similarity of compensation and wor'ing conditionsG +. prior collective bargaining historyG and C. employment status, such as temporary, seasonal and probationary employees. 4nder the circumstances of that case, the Court stressed the importance of the fourth factor and sustained the trial courts conclusion that the two separate bargaining units should be formed in dealing with respondent company, one consisting of regular and permanent employees and another consisting of casual laborers or stevedores. *therwise stated, temporary employees should be treated separately from permanent employees. /ut more importantly, this Court laid down the test of proper grouping, which is communality and mutuality of interest. (+amples wherein the communality or mutuality of interest test was applied: 7B Al!ambra Cigar and Cigarette Manu#a turing v. Emplo"ees Asso iation$ 5ature of wor' was at issue -- the Court stressed the importance of the second factor otherwise 'nown as the substantial-mutual-interest-test. And found that the employees in the administrative, sales and dispensary departments perform wor' which has nothing to do with production and

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

50

maintenance, unli'e those in the raw leaf, cigar, cigarette pac'aging and engineering and garage departments and therefore have a community of interest which 0ustifies the formation or e%istence as a separate appropriate collective bargaining unit. 6B %LASL3 v. CIR$ among the factors to be considered are8 employment status, position and categories of wor', unity of employees interest such as substantial similarity of wor' and duties. +B LH0 %i tures v. %!il Musi ians Build$ there is a substantial difference between the wor' performed by musicians and that of other persons who participate in the production of a film which suffice to show that they constitute a proper bargaining unit. CB Bolden Farms In . v Se retar"$ 1onthly paid office and technical ran'-and-file employees en0oy the constitutional right to self-organi$ation and collective bargaining. Community or mutuality of interest is the essential criterion. /asic test is whether or not it is fundamentally the combination which will best assure to all employees the e%ercise of their collective bargaining rights. 1onthly paid ran'-and-file employees perform administrative or clerical wor'. )aily paid ran'-and-file employees mainly wor' in the cultivation of bananas in the fields. #hey have very little in common in terms of duties and obligations, wor'ing conditions, salary rates, and s'ills. &n the case at bar, it is beyond (uestion that the employees of the livestoc' and agro division of .etitioner Corporation perform wor' entirely different from those performed by employees in the supermarts and cinema. #he noted differences are8 the hours of wor', wor'ing conditions, rates of pay. San Miguel Corp. v. Laguesma ( 2,+ SCRA 2:2 *7::99EL)8 7rior collective bar!ainin! history is not conclusive or determinative of what constitutes the appropriate bar!ainin! unit. #he test of grouping is mutuality or commonality of interest. #he Employees sought to be represented by C/ agent must have substantial mutual interests in terms of employment and wor'ing conditions as evinced by the type of wor' they perform. #here is similarity of employment status for all sales personnel. #hey have the same duties, responsibilities, compensation and wor'ing conditions. UNIT SE.ERANCE AND T'E LOBE DOCTRINE

3hat is the #o%e DoctrineF #he relevancy of the wishes of the EEs concerning their inclusion or e%clusion from a proposed bargaining unit is inherent in the basic right of selforgani$ation. 3hile the desire of EEs with respect to their inclusion in bargaining unit is not controlling it is a factor which would be ta'en into consideration in reaching a decision. FROM T'E PROFESSOR2S LECTURE A %rie4 eL7#anation o4 t3e

LOBE DOCTRINE

&t is best e%plained in the conte%t of a mar'et place and the demand of employment on such mar'et place. #he :L*/E )*C#"&5E usually applies to employees with rare s'ills or highly technical ones. E%ample given8 Case of .ilots and Stewardess. &f ,originally, pilots and stewardesses belong to *5E bargaining unit @unit AB for the purpose of collective bargaining, with the use of the :L*/E )*C#"&5E a plebiscite can be held to determine if the pilot employees would want to form a separate bargaining unit @unit /B. &llustration8 4nit A @original bargaining unitB 8 7,, .ilots Z 6,, Stewardesses U +,, employees 4nit / @proposed new unitB8 .ilots U 7,, employees. #hose in unit / @7,, pilotsB will vote in a plebiscite. #heir choices will be

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

51

@7B #o vote for 4nit A8 this would mean that they do not wish to separate from the original bargaining unit. @6B #o vote for 4nit /8 #his would mean that they would want to form their *35 bargaining unit, composed of pilots only. @+B 5either8 #hey do not want the choices &f you have one /&: bargaining unit, most probably you are grouping together )&22E"E5# SK&LLE) wor'ers. "ationale of the :lobe )octrine8 highly s'illed wor'ers have to separate to increase their mar'et value. 4nder the :lobe )octrine, will of the employees is the determinative factor. SIN LE OR ER UNIT IS FA.ORED

1. &t has been the policy of the /ureau to encourage the information of an E" unit unless
circumstances otherwise re(uire. #he proliferation of unions in an E" unit is discouraged as a matter of policy unless there are compelling reasons which would deny a certain class of EEs the right to self-organi$ation for purposes of collective bargaining. *%!iltran o vs. 6LR6. &t is proposed in a certification election that the professors of L. College be grouped into 6 units 8 high school and college professor. #he proposal is based on the fact that the rules governing the 6 are different, that the set up of the 6 departments are different and that the manner of their payment is different. #his proposal is opposed on the following grounds 8 that the 6 departments are under the control of only 7 board of trusteesG that they are housed in the same buildingG that there is but 7 cashier and registrar for the 6 departmentsG that there are teachers who are teaching in both departmentsG that the elementary department would be left without a bargaining representativeG and that there are only 7+, teachers involved in the proceedings. 9ow many bargaining units should there beJ #he facts show community of interests of the teachers in the college and high school departments. /eside, the establishment of separate units would leave the elementary teachers without a bargaining representative. And considering that there are only 7+, teachers, the division of the bargaining unit dissipate their strength for collective bargaining purposes. 2inally, the E" would be contending with 6 different unions vying for each other for better benefits to gain more members. *Laguna College vs. CIRT?O COMPANIES ?IT' RELATED BUSINESSES #wo corporations cannot be treated as a single bargaining unit even if their business are related. *4iatogon vs. Ople- 9owever, when if in reality, the companies constitute a single business entity i.e. + corporations acting as security agencies were under the same management and had interloc'ing incorporators and officers, the veil of corporate fiction may be lifted for the purpose of allowing the EEs to form a single union and be part of a single bargaining unit. *%SHSIA vs. <orresSI!E OF UNIT AND EFFECT ON RI 'T TO SELF(OR ANI!ATION Filoil Re#iner" Corp. v Filoil Supervisor" and Con#idential Emplo"ees 3nion ( 9+ %!il 272 *7:12ISSUE: #he right of supervisors and confidential employees to organi$e a labor association and to bargain collectively with their employer. 'ELD: Since the confidential employees are very few in number and are by practice and tradition identified with the supervisors in their role as representatives of management vis-[-vis the ran' and file employees, such identity of interest has allowed their inclusion in the

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

52

bargaining of supervisors for purposes of collective bargaining in turn as employees in relation to the company as their employer. #his identity of interest logically calls for their inclusion in the same bargaining unit and at the same time fulfills the laws ob0ective of insuring to them the full benefit of their right to selforgani$ation and to collective bargaining, which could hardly be accomplished if the respondent associations membership were to be bro'en up into five separate ineffective tiny units. Creating fragmentary units would not serve the interest of industrial peace. #he brea'ing up of bargaining units into tiny units will greatly impair their organi$ational value. Since the confidential employees are very few and are identified with the supervisors in their role as representatives of management vis-a-vis the ran' and file employees, such identity of interest has allowed their inclusion in the bargaining unit of supervisors-managers for purposes of collective bargaining. &ndustrial court en0oys a wide discretion in determining the procedure necessary to insure the fair and free choice of bargaining representations by employees. Action in deciding upon an appropriate unit for collective bargaining purposes is discretionary. &ts 0udgment is entitled to finality, unless its action is arbitrary or capricious.

S87er$i+or Unit 4unlop Slazenger v. 0LRC ( ,88 SCRA 728 *7::;Supervisors can be an appropriate bargaining unit. EFFECT OF PRIOR A REEMENT Beneral Rubber @ Foot'ear Corp. v 6LR ( 772 SCRA 2;, *7:;19EL)8 1onthly paid Employees are not managerial. #he supervisory power of such Employees consists merely in recommending as to what managerial actions to ta'e in disciplinary cases. #hey )* 5*# 2&# into the definition of managerial Employees laid down in /ulletin .ublishing Corp v. Sanche$. #hus, they are 5*# ."*9&/&#E) from forming a union. &t hasnt been shown that their responsibilities re(uire the e%ercise of discretion and independent 0udgment or that they possess power and authority to lay down or e%ercise management policies. #he proliferation of unions in an employer unit is discouraged as a matter of policy unless there are compelling reasons which would deny a certain class of employees the right to selforgani$ation for purposes of collective bargaining. #his case does not fall s(uarely within the e%ception. 1onthlies who are ran'-and-file have been historically e%cluded from the bargaining unit composed of daily-paid ran'-and-filers. &t is unusual to have to deal with 6 collective bargaining unions but there is no one to blame for creating the situation. :eneral had sought to indiscriminately suppress the members right to self-organi$ation. E%clusion of the members from the bargaining union of the ran'-and-file or from forming their own union was agreed upon by corporation with the previous bargaining representatives. 9owever, it can never bind subse(uent federations and unions because it is a curtailment of the right to self-organi$ation guaranteed by the labor laws. 1onthly-paid ran'-and-file employees should be allowed to 0oin the union of the daily-paid-ran'-and-file employees so that they can also avail of the C/A benefits or to form their own ran'-and-file union, without pre0udice to the certification election that has been ordered. DETERMININ A ENCY

Art. 2,2 %ro!ibition on Certi#i ation Ele tion

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

53

Lsec. 7I of "A D>7IM #he /ureau shall not entertain any petition for certification election or any other action which may disturb the administration of duly registered e%isting collective bargaining agreements affecting the parties ESCE.# under Art. 6I+, 6I+-A and 6ID of this Code @D, day freedom periodB Filoil Re#iner" Corp. v Filoil Supervisor" and Con#idential Emplo"ees 3nion ( 9+ %!il 272 &ndustrial court en0oys a wide discretion in determining the procedure necessary to insure the fair and free choice of bargaining representations by employees, and that its action in deciding upon an appropriate unit for collective bargaining purpose is discretionary and that its 0udgment in this respect is entitled to almost complete finality, unless its action is arbitrary or capricious and that absent any grave abuse of discretion as to 0ustify the Courts intervention. Action in deciding upon an appropriate unit for collective bargaining purposes is discretionary. &ts 0udgment is entitled to finality, unless its action is arbitrary or capricious.

Section :. UNION REPRESENTATION : ESTABLIS'IN MAMORITY STATUS


I.7 PRE(CONDITION 6 ER(EE RELATIONS'IP

UNION

#he duty to bargain collectively e%ists only between the E" and its EEs. 3hen there is no duty to bargain collectively, it is not proper to hold certification election in connection therewith. *%L3M vs. Compania vs. Maritima&!" is an emplo"er>emplo"ee relations!ip a %RE>CO04I<IO0 be#ore a petition #or erti#i ation ele tion an be entertained) An employer employee relationship is a pre-condition since without such relationship, there will be no duty to bargain on the part of either the employer or employee. #hus it will be senseless to go on with a certification election to choose their bargaining representative when there is no duty to collectively bargain anyway. *Allied Free &or/ers 3nion v. Cia Maritima( 7: SCRA 22;( 7:+1I.6 MET'ODS OF ESTABLIS'IN

MAMORITY STATUS

CERTIFICATION ELECTION I CONSENT ELECTION I AND RUN(OFF ELECTION De4ine certi4ication e#ection) con+ent e#ection) and r8n(o44 1. Certi4ication E#ection ! .rocess of determining through secret ballot, the sole and e%clusive bargaining agent of the EEs in an appropriate bargaining unit, for purposes of collective bargaining. @Certification proceedings directly involve two issuesB8 a. proper composition and constituency of the bargaining unitG and b. validity of ma0ority representation claims of the asserted bargaining representative or of competitive bargaining representative. *Azu ena-

2. Con+ent E#ection ! Election voluntarily agreed upon by the parties to determine the
issue of ma0ority representation of all the wor'ers in the appropriate bargaining unit.

3. R8n(O44 ! Election between the labor unions receiving the 6 highest number of votes
when a certification election which provides for + or more choices results in no choice receiving a ma0ority of the valid votes cast. E%clude spoiled ballots where the total number of votes for all contending unions is at least I,V of the number of votes cast.

Sigma Rho ( ) reviewers

Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA


For the se o! "" "A#$N%LA and other 2&&' barristers

54

Di+tin&8i+3 con+ent e#ection 4ro= certi4ication e#ection : A consent election is an agreed oneG its purpose being merely to determine the issue of ma0ority representation of all the wor'ers in the appropriate collective bargaining unit. A certification election is aimed at determining the sole and e%clusive bargaining agent of all the EEs in the appropriate bargaining unit for the purpose of collective bargaining. *&arren &or/ers 3nion vs. 6LRCERTIFICATION ELECTION 7urpose: determine the S*LE N ESCL4S&?E bargaining agent of all the EEs in the appropriate bargaining unit @A/4B for the purpose of collective bargaining.

Sigma Rho ( ) reviewers

CONSENT ELECTION An agreed one 7urpose: merely to determine the issue of ma0ority representation of all the wor'ers in the A/4 Separate and distinct processG has nothing to do with the import and effect of a certification election )oes not shorten the e%isting C/A )oes not entitle participants to immediately renegotiate an e%isting C/A POLICY A. NO DIRECT CERTIFICATION )irect certification is no longer allowed as a method of selecting the bargaining agent. 3here a union has a filed petition for certification election, the mere fact that no opposition is made does not warrant a direct certification. *CE0ECO vs. Se . o# LaborColgate %almolive %!ilippines v. Ople ( 7+, SCRA ,2,( *7:;;&SS4E8 3*5 the secretary of labor can directly certify a union as the sole and e%clusive bargaining agentJ 9EL)8 5*\ 9e cannot directly certify. #he main purpose of the procedure in Art. 6I> - 6D, is to aid in ascertaining the ma0ority representation. #he implementing rules pertinent to these provisions are all calculated to ensure that the certified bargaining rep is the #"4E C9*&CE *2 #9E E1.L*HEES against all contender. #he constitutional mandate that the State shall assure the rights of the wor'ers to selforgani$ation, collective bargaining, security of tenure and 0ust and humane conditions of wor', should be achieved under a system of law such as the aforementioned provisions of the pertinent statute. 3hen an over$ealous official by-passes the law on the pre-te%t of retaining a laudable ob0ective, the intendment or purpose of the law will lose its meaning as the law itself is disregarded. 3hen respondent minister @Sec. *f LaborB )&"EC#LH certified the union, he in fact )&S"E:A")E) #9E ."*CE)4"E A5) &#S LE:AL "EW4&"E1E5#. #here was therefore 2A&L4"E #* )E#E"1&5E with legal certainty whether the union indeed en0oyed ma0ority representation. #he holding of a certification election at the proper time &S 5*# 5ECESSA"&LH A 1E"E 2*"1AL&#H. Even in a case where a union has filed a petition for certification elections, the mere fact that no opposition is made does -., warrant a certification election. T3ere can %e NO .OLUNTARY RECO NITION Sa=a3an& Man&&a&a&>a +a Pre=eL $. SecretarA o4 La%or ) 2*< SCRA <C" / R 1DHHC20 &SS4E8 Can an employer voluntarily recogni$e a union as the bargaining representative of the employeesJ 9EL)8 5*\ &t cannot. #he employer @.erme%B should not have given its voluntary recognition to the union when the latter as'ed for recognition as e%clusive collective bargaining agent of the employees of the company.

#he company did not have the power to declare the union as the e%clusive representative of the wor'ers for the purpose of collective bargaining. Certification election is the most effective and the most democratic way of determining which labor organi$ation can truly represent the wor'ing force in the A/4 of the company. /. EFFECT OF ONE UNION ONLY Certification election is the best and most appropriate means of ascertaining the will of the EEs as to their choice of an e%clusive bargaining representative. #hat there are no competing unions involved should not alter that principle, the freedom of choice of the EEs being the primordial consideration besides the fact that the EEs can still choose between union and no union . *Beorge and %eter Lines vs. AL3C. ONE(UNION) ONE(COMPANY POLICY :ive a brief description on the one>union( one> ompan" poli " 8 #he proliferation of unions in an E" unit is discouraged as a matter of policy unless compelling reasons e%ist which deny a certain and distinct class of EEs the right to self-organi$ation for purposes of collective bargaining. *%ag/a/aisa ng mga Manggaga'a sa triump! vs. Ferrer>Calle=a). RATIONALE #he holding of a certification election is based on a statutory policy that cannot be circumvented. #he wor'ers must be allowed to freely e%press their choice in a determination where everything is open to their sound 0udgment and the possibility of fraud and misrepresentation is eliminated. *%rogressive development vs. Se . o# Labor.ENUE OF PETITION

1. Sec. 1) R8#e .) Boo; .) IRR2+ : A petition for certification election may be filed with the
"egional *ffice which has 0urisdiction over the principal office of the E".

2. Sec. <) R8#e .) Boo; .) IRR2+ : 4pon receipt of the petition, the regional director shall
assign the case to a 1ed-Arbiter to appropriate action. #he 1ed-Arbiter shall have 6,wor'ing days from submission of the case for resolution within which to dismiss or grant the petition. 5. In case the place of wor* of the (()s and the principal office of the (2 are located within the territorial /urisdiction of different re!ional offices0 may the wor*ers file the application in their place of wor*? Hes. #he word =urisdi tion as used in the provision refers to venue, and venue touches more to the convenience of the parties rather substance of the case. Since the wor'er is more economically disadvantaged, the nearest government machinery to settle a labor dispute must be placed at his immediate disposal. *Cruzvale vs. LaguesmaPAST NON PARTICIPATION 5o law, administrative rule or precedent prescribes forfeiture of the right to vote by reason of neglect to e%ercise the right in the past certification election I.+ CERTIFICATION ELECTION &!at is t!e %3R%OSE o# a erti#i ation ele tion) &t is a means of determining the wor'ers choice of8 7B 3hether the want a union to represent them for collective bargaining *" they want 5* union to represent them at all. 6B And if they choose to have a union represent them, they will choose 39&C9 among the contending union will be the S*LE and ESCL4S&?E bargaining representative of the employees in the appropriate bargaining unit.

7st Level of Choice8 6nd Level of Choice8

Hes 4nion or 5o 4nion &f Hes 4nion wins, 39&C9 union.

3S< Fa ult" 3nion v. 6itonio ,7; SCRA 7;2(*7:::Specifically, the purpose of a certification election is to ascertain whether or not a ma0ority of the employees @7B wish to be represented by a labor organi$ation and @6B by which particular labor organi$ation. BAC9 ROUND POLICIES and C'ARCTERISTICS %e3ind a certi4ication e#ection: 1. It i+ NOT a Liti&ation) %8t a =ere in$e+ti&ation o4 a non(ad$er+arA c3aracter 5o determination of rights violated or asserted. )etermination of wor'ers choice only. IMPLICATION8 #echnical rules and ob0ections should not hamper the correct ascertainment of the labor union that has the support and confidence of the ma0ority of the wor'ers and is thus entitled to represent them in bargaining for the terms and conditions of their employment. @.ort 3or'ers 4nion v. )*LEB 6. it i+ =o+t DEMOCRATIC and =o+t e44icacio8+B e44ecti$e >aA (Samahan! man!!a!awa sa perme+ case) and it i+ a STATUTORY POLICY (<elyca >orp. v. Aerrer&>alle/a) Y #here should be no obstacle in conducting the Certificate election. STATUTORY FRAME(?OR9 AND POLICY TA9E NOTE: Certification election implements the policy of right to self-organi$ation and collective bargaining. #he right of self-organi$ation includes the right of the wor'ers to have a bargaining representative *2 #9E&" *35 C9**S&5: for the purpose of collective bargaining. Stat8torA Fra=e(>or; I. T3e di44erent entrA 7oint+ to a certi4ication e#ection Art. 6ID8 *rgani$ed Establishments Art. 6I>8 4norgani$ed Establishments Art. 6I<8 Employer-&nitiated Certification Election #a'e note8 II. #he mechanics of the three entry-points are similar and the same.

<!e 6ARS to a CE$ 7revents the happenin! of a >(. a. Contract bar rule @Art. 6+6B b. )eadloc'-bar rule c. *ne year bar rule Ta;e note: among all the bar rules, only the contract bar is actually in the labor code, the other two are in the implementing rules.

III.

S8+7en+ion o4 CE: .re0udicial (uestion rule

UNION AS INITIATIN

PARTY

A. OR ANI!ED ESTABLIS'MENT It is an establishment with: a. An e%isting C/AG or b. )uly certified bargaining agent. 1. Under >3at condition+ =aA t3e Med(Ar%iter a8to=atica##A order a certi4ication e#ection %A +ecret %a##ot in an or&ani5ed e+ta%#i+3=entF a. .etition (uestioning the ma0ority status of the incumbent bargaining agent is filed before the )*LE within the D,-day freedom period.

b. Such petition is verified.

c. #he petition is supported by the written consent of at least 6IV of all EEs in the
bargaining unit 8 @Art. 2:<B #he 6IV subscription re(uirement is prescribed only in organi$ed establishments, that is, those with e%isting bargaining agents. )oes not apply to unorgani$ed establishment 2. In case there are 5 or more unions contendin! in a certification election0 what will happen if no union receives a ma/ority of the valid votes cast? .rovided that the total number of votes of all contending unions is at least I,V of the number of votes cast Lthat is, the contending unions got more votes than the vote for no union M, a run-off election will be conducted between the 6 unions with the highest number of votes. *Al antara5. # certification election was held between 5 contendin! unions0 #0 < and >. .f the %EC eli!ible voters0 only %CC actually cast their votes. # !ot 22C votes0 < !ot 2$2 votes and > !ot 5C votes0 while the rest of the ballots were considered spoiled. Fow do you determine the ma/ority vote in the certification election ? #he ma0ority vote in the certification election is I,V plus 7 of the valid votes cast. Spoiled ballots are e%cluded. @&d.B A.7 DEFINITION ?3at i+ an or&ani5ed e+ta%#i+3=entF &t is a firm or company where the EE have selected an e%clusive bargaining representative or where there is a C/A duly submitted to the )*LE. *Se . +( Rule H( 6oo/ H( IRR5sTa;e note: in relation to the one-year bar rule, a duly certified bargaining agent is allowed one-year to negotiate for the signing of a C/A, that is why no CE can be filed at this time. An organi$ed establishment is best distinguished from an unorgani$ed establishment by the presence of a bargaining representative. Since according to Art. 6I>, an unorgani$ed establishment is an establishment >it3o8t a bargaining representative. #he distinctions are important because the re(uirements are different. OR ANI!ED ESTABLIS'MENT .. UNOR ANI!ED ESTABLIS'MENT Art. 2:<: OR ANI!ED 6argaining agent %etition #iled Freedom %eriod E%isting, has one Art. 2:H: UNOR ANI!ED 5one

9as to be a ?E"2&E) 5o need to be verified petition 5o petition for Certification 5ot applicable. election ESCE.# within D, days before the e%piration 5o freedom period. Can file of the collective bargaining petition anytime. agreement @See Art. 6I+ N 6I+-AB #a'e note interpreted 3&#9&5 . how the SC term

What is the rationale of freedom period in or!ani'ed establishments0 why is there none in unor!ani'ed establishments? &t has something to do with industrial peace Substantial support rule 1ust be duly supported by 6IV of ALL #9E 1E1/E"S *2 #9E A.."*."&A#E /A":A&5&5: 45&#. Percenta&e %a+e: all members of an appropriate bargaining unit. What is intent and purpose of law for re6uirin! the substantial support rule? Law wants to 'now the intention of the employees. &f they really want a CE, since they already have a bargaining agent. FREEDOM PERIOD 5* substantial support rule. 39HJ &ntention of law is to bring in the union, to implement policy behind Art. 677a.

1. ?3en =aA a 7etition 4or certi4ication %e 4i#ed in an or&ani5ed e+ta%#i+3=entF A


petition for certification election may be filed during the last D, days @freedom periodB of the C/A. Any petition filed before or after the D,-day freedom period shall be dismissed outright. *Se . ,( Rule H( 6oo/ H( IRR5s-

2. I+ t3e 4reedo= 7eriod a44ected %A anA a=end=ent) eLten+ion or rene>a# o4 t3e


CBAF 5o. #he D,-day freedom period based on the original C/A, shall not be affected by any amendment, e%tension or renewal of the C/A for purposes of certification election. *Se . +( Rule H( 6oo/ H( IRR5s-

3. MaA a ne> CBA eLec8ted %A t3e inc8=%ent eLc#8+i$e %ar&ainin& re7re+entati$e


and t3e co=7anA) and rati4ied d8rin& t3e <D(daA 4reedo= 7eriod %e con+idered a %ar to t3e certi4ication e#ectionF 5o. #he representation case shall not be adversely affected by a C/A registered before or during the last D, days of a subsisting agreement or during the pendency of the representation case. *Se . 9( Rule H( 6oo/ H( IRR5sA.+ FILIN PARTY

1. Among the legal re(uirements before a petition for certification election may be ordered
by the 1ed-Arbiter is that the petitioning union must be a legitimate labor organi$ation in good standing. *Lopez Sugar vs. Se . o# Labor-

2. MaA a 4ederation 4i#e +8c3 a 7etition in %e3a#4 o4 it+ c3a7ter or #oca#F #he mother
federation may file a petition for certification as agent of the local or chapter provided both the mother federation and the local or chapter is a legitimate labor organi$ation. *%rogressive 4evelopment vs. Se . o# Labor &f the legitimacy of the petitioner union is under (uestion in a proceeding see'ing to cancel its registration, such (uestion must first be finally resolved before its petition for a CE may be granted.

*nce the re(uired percentage re(uirement has been reached, the EEs withdrawal from union membership ta'ing place after the filing of the petition for CE will not affect it. A.C SI NATURE .ERIFICATION &t is the )irector of Labor "elations, rather than a union that is re(uired to determine whether there has been compliance with the re(uirement that at least 6IV of all the EEs in the bargaining unit consented in writing to the holding of a certification election. *<oda"5s .nitting vs. 0oriel4oes a RIHAL union !ave aut!orit" to HERIFF t!e signatures in t!e substantial support reGuirement) 5o a rival union may not. *nly the department of labor has authority to verify. #here is no basis for the contention that a duty is cast on respondent director @secretary of laborB to allow a rival labor organi$ation to verify the authenticity of such signatures. #he duty to ascertain whether there was compliance was on the director of labor. *<oda"5s .nitting Free &or/ers 3nion v. 0oriel( 12 SCRA 928( 7:11A.I SUBSTANTIAL SUPPORT

1. ?3at 7ercenta&e o4 t3e EE2+ +3o8#d +877ort t3e 7etition 4or certi4ication e#ection
in an or&ani5ed e+ta%#i+3=entF #he re(uired number is 6IV of all the EEs in the bargaining unit. Is t!e substantial support rule a mandator" reGuirement) &f you strictly follow the letter of the law it would seem to be mandatory. /4# the courts have interpreted Art. 6ID to read in such a way that the secretary of labor has )&SC"E#&*5 to order the holding of the certification election if it will achieve the policy of the law @Self-organi$ation and collective bargainingB. &estern Agusan &or/ers 3nion v. <ra=ano (7:+ SCRA +22( *7::7#his one involves an *":A5&]E) ES#A/L&S91E5#. #he policy of the labor code is partial to the holding of a certificate election. #hus the )*LE in the e%ercise of his sound discretion may order CE even without the +,V @6IVB re(uirement. &!en s!ould t!e substantial support be s!o'n or omplied 'it!) &t need not be shown at the time of filing of the petition, may be shown within a reasonable time thereafter but should be before the election.

2. I+ t3ere a need 4or +i=8#taneo8+ +8%=i++ion o4 t3e +i&nat8re+ to&et3er >it3 t3e
7etition 4or certi4ication e#ectionF 5o. #he mere filing of a petition for certification election within the freedom period is sufficient basis for the issuance of an order for holding of a certification election sub0ect to the submission of the consent signatures within a reasonable period of time. *%&3% vs. Laguesma-

3. MaA a certi4ication e#ection %e ca##ed %A t3e Med(Ar%iter a#t3o8&3 t3e 2:N


+tat8torA reE8ire=ent 3a+ not %een co=7#ied >it3F Hes. Even conceding that the statutory re(uirement of 6IV is not strictly complied with, the 1ed-Arbiter is still empowered to order that the certification election be held precisely for the purpose of ascertaining which of the contending labor organi$ations shall be the e%clusive bargaining agent. #he re(uirement then is relevant only when it becomes mandatory in conduct a certification election. *CMC vs. Laguesma- *nce the statutory re(uirement is met, it is mandatory for the 1ed-Arbiter to conduct a certification election. *6el" a vs. Ferrer>Calle=a- &n all other instances, however, the discretion ought to be ordinarily e%ercised in favor of a petition for a certification election. *CMC vs. Laguesma-

$. ,he -ASW filed a petition for certification election. It was contended however by another union that more than 2CJ of the membership of -ASW disaffiliated and thus the union cannot meet the 2%J support re6uirement. Should the petition be dismissed? &f there is a reasonable doubt as to whom the EEs have chosen as their representative for the purpose of collective bargaining, the /ureau shall order a certification election by secret ballot. #o hold otherwise would violate the liberal approach constantly followed in labor litigation. *HICMICO vs. 0oriel&!at is t!e e##e t on a petition o# members!ip #iled b" t!at union) erti#i ation ele tion o# t!e 'it!dra'al #rom union

*nce the re(uired percentage re(uirement has been reached, the employees withdrawal from union membership ta'ing place after the filing of the petition for certification election will not affect the petition. *n the contrary the presumption arises that the withdrawal was not free but was procured through duress, coercion, or for a valuable consideration. 9ence, the subse(uent disaffiliation of the si% @DB employees from the union will not be counted against or deducted from the previous number who had signed up for the CE. *Oriental <in Can Labor 3nion v. Se retar" o# Labor and Emplo"ment 2:9 SCRA +98( 7::;A.D MOTION FOR INTER.ENTION 6 SUPPORT A union that is merely filing a MOTION FOR INTER.ENTION in a CE filed by another union need 5*# present substantial support. #he substantial support is only needed when filing for a petition for certification election. *%AFL3 vs. Calle=a( 7+: SCRA 9:7-

/. UNOR ANI!ED ESTABLIS'MENTS


Art. 2:H : &n any establishment where there is no certified bargaining agent, a certification election shall automatically be conducted by the 1ed-Arbiter upon the filing of a petition by a legitimate labor organi$ation. FILIN PERIOD

?3en =aA a 7etition 4or certi4ication %e 4i#ed in an 8nor&ani5ed e+ta%#i+3=entF A petition for certification election may be filed at any time. *Se . ,( Rule H( 6oo/ H( IRR5s ALU $+. CALLEMA &n cases of organi$ed bargaining agent, what is essential is whether the petition for certification election was filed within the D,-day freedom period. #he mere filing of the same is sufficient basis for the holding of a certification election. &!o s!all #ile t!e petition under Art. 221) A LE:&#&1A#E labor organi$ation. &t cannot be an unregistered labor organi$ation. #his is best read in relation to Art. 6C6 which enumerates the rights granted to a legitimate labor organi$ation and one of those rights is the right to be chosen as the e%clusive bargaining representative. #his is one way the law encourages union registration. HE03E$ &!ere to #ile) /L" region where union is. #he one nearer to the employees.

ER AS INITIATIN

PARTY

Art. 2:* : 3hen re(uested to bargain collectively, an E" may petition the /ureau for an election. &f there is no e%isting C/A in the unit, the /ureau shall, after hearing, order a certification election. #he certification case shall be decided within 6, wor'ing days, and the certification election shall be conducted within the 6, wor'ing days from the decision.

A. ROLE ER E" has no role in certification election e%cept when as'ed to bargain collectively under the @BA+tander R8#e.K *%!ilippine #ruits and vegetable Industries vs. <orres- &t was a wellsettled rule that E" has no standing to (uestion a certification election since it is the sole concern of the wor'ers. *%<<C vs. Laguesma<A.E 0O<E: Employer is a #*#AL S#"A5:E" in the process of Certification Election. Employer has 5* S#A5)&5: to file a 1*#&*5 #* )&S1&SS *%!il. <elep!one <elegrap! v. SOLA companys interference in the CE creates a suspicion that it intends to establish a company union *Oriental <in Can Labor 3nion v. Se retar" o# Labor-. CONDUCTIN A ENCY

1. Art. 22< : #he /ureau of Labor "elations and the Labor "elations )ivisions in the
regional offices of the )*LE shall have e%clusive and original authority to act, at their own initiative or upon re(uest of either or both parties, on all inter-union and intra-union conflicts, and all disputes, grievances or problems arising from or affecting labormanagement relations in all wor'places whether agricultural or non-agricultural, e%cept those arising from the implementation or interpretation of C/As which shall be sub0ect of grievance procedure andRor voluntary arbitration.

2. #he practice of the /oard referring certification cases to the #4C., a private entity, is not
sanctioned by the Labor Code. *%L3M vs. 0orielNATURE OF PROCEEDIN #he certification election is the most democratic and e%peditious method by which the laborers can freely determine the union that shall act as their representative in their dealings with the establishment where they are wor'ing. *%&3% vs. Laguesma- &t is not litigation in a sense. &t is a mere investigation of a non-adversary fact-finding character in which the /L" of the )*LE plays the part of a disinterested investigator see'ing merely to ascertain the desires of the EEs as to the matter of their representative. *Airline %ilots Asso iation vs. CIRCertification proceedings are in$e+ti&atorA in nat8re since the ob0ect of the proceedings is not the decision of any alleged commission of wrong but is merely the determination of proper bargaining units and the ascertainment of the will and choice of the EEs in the selection in the selection of a bargaining representative. #he determination of the proceedings doesnt entail the entry of remedial orders or redress of rights, but culminate solely in an official designation of bargaining units and an affirmation of the EEs e%pressed choice of bargaining agent. *Foung Men Labor 3nion Stevedores v. CIR( 7, SCRA 2;2-

CERTIFICATION ELECTION 6 PROCESS AND PROCEDURES 6oo/ H Rule MI$ Certi#i ation Ele tions ?'O =aA 4i#eF Sec. 7 Any legitimate labor organi$ation *r any employer, when re(uested to bargain collectively and the status of the union is in doubt ?'ERE to 4i#eF Sec. 6 A petition for certification election shall be filed with the 1ed-Arbiter through the "egional *ffice which has 0urisdiction over

a. the principal office of the employer or b. where the bargaining unit is principally situated. 3here two or more petitions involving the same bargaining unit are filed in one "egional office, the same shall be A4#*1A#&CALLH consolidated. 3here these petitions are filed in different "egional *ffices, the "egional *ffice which 2&"S# ACW4&"ES =4"&S)&C#&*5 over the case shall e%clude the others, in which case the latter shall endorse the petition to the former for consolidation. ?'EN to 4i#eF Sec. + a. &n the absence of a collective bargaining agreement duly registered in accordance with Article 6+7 of the Code, a petition for certification election may be filed at anA ti=e. b. 9owever, no certification election may be held >it3in one year from the date of a valid certification, consent or run-off election or from the date of voluntary recognition in accordance with "ule S of these "ulesG provided that, where an appeal has been filed on the order of the med-arbiter certifying the results of the elction, the running of the one year period shall be suspended until the descision on the appeal shall have become final and e%ecutory. c. 5either may a representation (uestion be entertained if, before the filing of a petition for certification election, i. the duly recogni$ed or certified union has commenced negotiations with the employer in accordance with Article 6I, of the Code within one-year period referred to in the immediately preceding paragraph, ii. or a bargaining deadloc' to an incumbent or certified bargaining agent is a party and has been submitted to conciliation or arbitration or had become the sub0ect of a valid notice of stri'e or loc'-out. d. &f a collective bargaining agreement has been duly registered in accordance with Article 6+7 of the Code, a petition for certification election or a motion for intervention can only be entertained >it3in +iLtA /<D0 daA+ 7rior to t3e eL7irA date o4 +8c3 a&ree=ent. Sec. 1) R8#e .I) Boo; .) IRR2+ : #he "egional )ivision, shall cause the necessary posting of notices at least I wor'ing days before the actual date of election in 6 most conspicuous places in the company premises. A.7 ?ai$er #he e%ecution of an agreement to waive the mandatory I days posting election notices binds the parties thereto by the doctrine of estoppel. *JISSCOR vs. <orres/. .OTIN LIST AND .OTER based on the payrolls @+ mosB voting in a C E does not re(uire union membership because CE elects a bargaining unionG it does not elect union officers

/.7 A## EE2+

1. *nly EEs who are directly employed by the E" and wor'ing along the activities to which
the E" is engaged and lin'ed by E"-EE relationship are (ualified to participate in the

certification election irrespective of the period of their employment. Manu#a turing vs. 0orielAirtime Spe ialists( In . v 4ire tor o# 6LR *7;8 SCRA 19:- 7::8

*Eastland

&n a certification election, all ran' and file employees in the appropriate bargaining unit are entitled to vote. Collective bargaining covers all aspects of the employment relation and the resultant C/A binds all employees in the bargaining unit. All ran' and file employees, probationary or permanent, have a substantial interest in the selection of the bargaining representative. #he code ma'es no distinction as to their employment status. #he law refers to all the employees in the bargaining unit. All they need to be eligible to support the petition is to belong to the bargaining unit.

2. Are EE2+ 7ro3i%ited %A t3eir re#i&ion to %e =e=%er+ o4 a #a%or or&ani5ation %e


a##o>ed to $ote in a certi4ication e#ectionF Hes. #he plainly discernible intendment of the law is to grant the right to vote to all bona fide EEs in the bargaining unit, whether they are members of a labor organi$ation or not. *Re"es vs. <ra=ano6enguet Ele tri Cooperative( In . v Calle=a*7;8 SCRA 198- 7:;: #he employees of a cooperative may not 0oin or form a labor organi$ation for purposes of collective bargaining. As members of the cooperative, they are co-owners. An owner cannot bargain with himself or his co-owners. #he fact the members-employees do not participate in the actual management of the cooperative does not ma'e them eligible to form, assist or 0oin a labor organi$ation for the purposes of collective bargaining. &t is the fact of ownership of the cooperative, not involvement in the management thereof, which dis(ualifies a member from 0oining any labor organi$ation within the cooperative. *nly +> employees are not members of the cooperative and who are the only employees eligible to form or 0oin a labor union. 9owever, the minutes of the certification election show that a total of <+ employees were allowed to vote. #he certification election is still null and void. &t cannot be determined whether or not union was duly elected by the eligible voters of the bargaining unit since even employees who are ineligible to 0oin a labor union within the cooperative because of their membership therein were allowed to vote in the certification election. /.6 DISMISSED EE2S EEs who have been improperly laid-off but who have a present, unabandoned right to the e%pectation of reemployment, are eligible to vote in certification elections. *%!il. Fruits and Hegetables Industries vs. <orresR. <ransport Corp. v Laguesma *221 SCRA ;21Company argues that the employment status of the members of CL*. who 0oined the stri'e must first be resolved before a certification election can be conducted. #his is untenable. &n .hilippine 2ruits v. #orres, employees who have been improperly laid off but who have a present, unabandoned right to or e%pectation of re-employment, are eligible to vote in certification elections. Employees who participated in the stri'e, legally remain as such, until either the motion to declare their employment status legally terminated or their complaint for illegal dismissal is resolved by the 5L"C. /.+ PROBATIONARY EE2S .robationary EEs in the appropriate bargaining unit are entitled to vote. *Airtime Spe ialists vs. 4ire tor o# Labor RelationsC. .OTIN DAY 1. Sec. 2) R8#e .I) Boo; .) IRR2+ : #he election shall be set during the regular business day of the company unless otherwise agreed upon by the parties.

.a#id e#ection 1a0ority of the wor'ers of the A/4 must cast their vote )oes not ma'e any distinction whether the ballot is valid or not 2. ;ay a party to a certification election contend that the election was not held on a re!ular business day due to the occurrence of a stri*e that day? 5o. 3hile it may have affected the actual performance of wor', by some EEs, it did not necessarily ma'e said date an irregular business day of the company. *Asian 4esign vs. Ferrer>Calle=a). PROTEST 1. ?3en +3o8#d a 7rote+t %e rai+edF @by the representation officerB a. *n-the-spot during the conduct of the election. b. /efore the close of proceedings with the representation officer. Q .rotests not so raised are deemed waived. Such protest shall be contained in the minutes if the proceedings. @Sec. ") R8#e .I) Boo; .) IRR2+B Q #he protest should be formali$ed with the 1ed-Arbiter within I days after the close of the election proceedings, otherwise the protest shall be deemed dropped. @Sec. 1) R8#e .I) Boo; .) IRR2+B must be made of record in the minutes of the proceeding P3i#. Fr8it+ R .e&eta%#e+ Ind. $. Torre+ R8#in&: According to Sec. +-C "ule ?& /' ?, the following are re(uired so that a 7rote+t may prosper8 @aB .rotest must be filed with the representation officer and made of record in the minutes of the proceedings before the close of election proceedings. .rotest not so raised are deemed waivedG @bB .rotest must be formali$ed before the 1ed-Arbiter within I days after the close of the election proceedings, which shall then be decided within 6, wor'ing days from the. #he close of the election proceedings is the period from the closing of the polls to the counting and tabulation of the votes. Ier ules Industries In . v Se retar" ( 279 SCRA 72: *7::25otice of the certification election had been issued. Copies of said notice were given and posted in conspicuous places. .ayroll was used as the basis of the votersF list. *nly 7I out of the A< voters signed their names showing that they actually voted. #hese were shown by the minutes of the pre-election conference. 5either the records of the case nor the minutes of the certification election show that 9ercules protested the conduct of the certification election. 7rotests not so raised are deemed waived. Jiss or Independent 3nion v <orres ( 227 SCRA +:: *7::,:rounds of a protest may be filed on the spot or in writing with the representation officer and shall be contained in the minutes of the proceedings. .rotests not so raised are deemed waived. #he minutes of the certification election show that =&4 only protested against the use of emblem, visor, pin. *ther protests not so raised are deemed waived. #here is no merit in the argument that the non-posting of the notice of the certification election as prescribed misled and confused the wor'ers regarding the mechanics of the election. =&4 is estopped from raising that issue for it signed an agreement with =&SSC*" to waive the mandatory I days posting of election notices. #he doctrine of estoppel is based on grounds of public policy, fair dealing, good faith and 0ustice, and its purpose is to forbid one to spea' against his own act, representations, or commitments to the in0ury of one to whom they were directed and who reasonably relied thereon. #he results of the certification election belie the allegation that the wor'ers were misinformed about the election out of 7,C eligible voters, AA were able to cast their votes and only + were spoiled ballots. 5othing in the records shows that the alleged wearing of sunvisors and pins, the posting of huge streamers, as well as the alleged escorting of voters by S1=-AL4 have unduly pressured, influenced, vitiated, or in any manner affected the choice of the wor'ers.

E. APPEAL Art. 2:C : Any party to an election may appeal the order or results of the election as determined by the 1ed-Arbiter directly to the Sec. of Labor and Employment on the ground that the rules and regulations established by the Sec. have been violated. Such appeal shall be decided within 7I calendar days. 2. ANNULMENT 3nited Emplo"ees 3nion o# Belmart Inv. v. 0oriel ( +1 S 2+1 *12:eneral allegation of duress is not sufficient to invalidate a certification electionG it must be shown by competent and credible proof. Slightest doubt cannot be entertained that what possesses significance in a petition for certification is that through such a device the employees are given the opportunity to ma'e 'nown who shall have the right to represent them. 3hat is e(ually important is that not only some but all of them should have the right to do so. :rievance spo'en of is more fancied than real, the assertion of confusion and demorali$ation based on con0ecture rather than reality. 5or need this Court pass upon the ground of protest based on the alleged participation by nuns and a priest who presumably aided the cause of :A#C*"). ?ictoriano v. Eli$alde left no doubt as to the privacy of religious freedom, to which contractual rights, even on labor matters, must yield. *neFs religious convictions may be the basis for a employee 0oining or refusing to 0oin a labor union. "eference was made to the registration of :A#C*") allegedly having been revo'ed. .leadings do not touch upon the matter. Court is not in a position to rule on such a (uestion. Con#ederation o# Citizens Labor 3nion v. 0oriel ( 77+ S +:9 *;2Certification election is invalid because of certain irregularities. 3or'ers on the night shift and some of those in the afternoon shift were not able to vote. *ut of 7,,7, voters only DA6 voted and about +7< failed to vote. Secrecy of the ballot was not safeguarded. Election supervisors were remiss in their duties and were apparently EintimidatedE by a union representative. .articipating unions were over$ealous in wooing the employees to vote in their favor by resorting to such tactics as giving free tricycle rides and #-shirts. Certification election gives the employees Etrue representation in their collective bargaining with an employerE. AL4Fs written protest was based on the same founds invo'ed by CCL4 in its protest. #hat fact alone should have alerted 5oriel to disregard the technicality that CCL4Fs protest was not filed on time.

<imbung o v. Castro ( 7;, S 798 *:8.a0ares was arguing that the elections where #imbungco won was invalid because there was no C*1ELEC and no tally sheet was prepared which set out the number of votes that each candidate got. 9owever, it does not appear that the dispensing by the membership of the Kapisanan with certain technical re(uirements or formalities in relation to the election had resulted in the deprivation of any substantial right or prerogative of anyone, or caused the perpetration of a fraud or other serious anomaly, or precluded the e%pression and ascertainment of the popular will in the choice of officers. *b0ections to the elections have come too late, and they must be deemed in the premises to have forfeited their right to impugn. .rotests against elections should be formali$ed before the med-arbiter within @IB days from the close of the election proceedings. .rotest was presented only after the lapse of 6 years after it was held. 5o informal protest, oral or written, was ever presented against the election. #here was tacit acceptance of the regularity of the elections and the results for during that period of 6 years, certain significant events too' place without demur or ob0ection of any sort. #imbungco officially made 'nown to the /L" the KapisananFs disaffiliation from the 2ederacion 2*&#A2 and obtained a new certificate of registration for the union. 9e and the other officers of the Kapisanan negotiated with the AAA#C management and succeeded in bringing about the e%ecution of a new C/A. I.C CERTIFICATION OF DESI NATED MAMORITY UNION

MAMORITY UNION Art. 2:: ELc#8+i$e %ar&ainin& re7re+entation and >or;er+ 7artici7ation in 7o#icA and deci+ion(=a;in& O+ec. 22 o4 RA <H1:P -- #he labor organi$ation designated or selected by the ma0ority of the EEs in an appropriate collective bargaining unit shall be the e%clusive representative of the EEs in such unit for the purpose of collective bargaining. 9owever, an individual EE or group of EEs shall have the right at any time to present grievances to their E". Any provision of law to the contrary notwithstanding, wor'ers shall have the right, sub0ect to such rules and regulations as the S*LE may promulgate, to participate in policy and decision-ma'ing processes of the establishment where they are employed in so far as said processes will directly affect their "&:9#S, /E5E2&#S and 3EL2A"E. 2or this purpose, wor'ers and E"s may form LA/*" 1:# C*45C&LsG .rovided, that the representatives of the wor'ers in such labor mgt councils shall be elected by at least the ma0ority of all EEs in said establishment. Art. 22+ Representation issue in organized establis!ments > &n organi$ed establishments, when a verified petition (uestioning the ma0ority status of the incumbent bargaining agent is filed before the )*LE within the D, day period before the e%piration of the C/A, the 1ed-Arbiter shall automatically order an election by secret ballot when the verified petition is supported by the written consent of at least 6IV of all the employees in the bargaining unit to ascertain the will of the employees in the appropriate bargaining unit. #o have a valid election, at least a ma0ority of all eligible voters in the unit must have cast their votes. #he labor union receiving the ma0ority of the valid votes cast shall be certified as the e%clusive bargaining agent of all the wor'ers in the unit. 3hen an election which provides for + or more choices results in no choice receiving a ma0ority of the valid votes cast, a run-off election shall be conducted between the labor unions receiving the 6 highest number of votes. .rovided, that total number of votes for all contending unions is at least I,V of the number of votes cast. At the e%piration of the freedom period, the E" shall continue to recogni$e the ma0ority status of the incumbent bargaining agent where no petition for certification election has been filed. 6enguet Ele tri Cooperative( In . v Calle=a ( *7;8 SCRA 198- 7:;: #o have a valid certification election, at least a ma0ority of all eligible voters in the unit must have cast their votes. #he labor union receiving the ma0ority of the valid votes cast shall be certified as the e%clusive bargaining agent of all the wor'ers in the unit. &n this case, the election is invalid. *nly +> employees are not members of the cooperative and who are the only employees eligible to form or 0oin a labor union. 9owever, the minutes of the certification election show that a total of <+ employees were allowed to vote. #he certification election is still null and void. &t cannot be determined whether or not union was duly elected by the eligible voters of the bargaining unit since even employees who are ineligible to 0oin a labor union within the cooperative because of their membership therein were allowed to vote in the certification election. I.I BARS TO CERTIFICATION ELECTION 7B 6B +B Contract bar rule @Art. 6I+-AR Art. 6++B )eadloc' /ar-"ule *ne-Hear /ar rule ."E?E5#S a CE merely .*S#.*5ES a CE

<ars to a certification election: Suspension 2ule:

ONE YEAR BAR RULE /CERTIFICATION YEAR0 A. ENERAL RULE Sec. ") R8#e .) Boo; .) IRR2+ : 5o certification election may be held within 7 year from the date of issuance of a final certification result.

#he phrase 4ina# certi4ication re+8#t means that there was an actual conduct of election. &n case where there was no certification election conducted precisely because the first petition was dismissed, on the ground of a defective petition, the certification year bar does not apply. *R. <ransport vs. LaguesmaQ 2rom time of valid certification election. 5ot from time of final resolution of appeal. /. E-CEPTIONS A petition for certification election may be entertained where unusual circumstances e%ist. A circumstance would be unusual or out of the ordinary if it affects the structure, functions or membership of the contracting union i.e. the number of EEs in the appropriate bargaining unit has more than doubled since the last certification election. *Azu enaDEADLOC9 BAR RULE ?3at i+ t3e dead#oc; %ar r8#eF A petition for certification election can only be entertained if there is no pending bargaining deadloc' submitted to conciliation or arbitration of which has become the sub0ect of a valid notice of stri'e or loc'out. *0AS3CI%><3C% vs. <ra=ano)EA)L*CK-/A" "4LE /reE8i+ite+0 7B .arties must have negotiated in good faith. 6B )eadloc' must have been submitted to voluntary arbitration or a valid sub0ect of a valid notice of stri'e or loc'-out. A. NO DEADLOC9 /argaining deadloc' presupposes reasonable effort at good faith bargaining which, despite noble intentions, does not conclude in agreement between the parties. *4ivine &orld vs. Se . o# LaborDead Loc; is defined as the counteraction of things producing entire stoppage8 a state of inaction or of neutrali$ation caused by the opposition of persons of factions @as in government or a voting bodyB8 stand still. #here is a deadloc' when there is a Pcomplete bloc'ing or stoppage resulting from the action of e(ual and opposed forces as the deadloc' of 0ury or legislature. #he word is synonymous to impasse which, within the meaning of the American federal labor laws, presupposes reasonable effort at good faith bargaining which, despite noble intentions, does not conclude to an agreement between the parties. Di+ini: A precondition for the application of the rule is that the deadloc' must be based on good faith bargaining. CONTRACT BAR RULE

1. ?3at i+ t3e contract %ar r8#eF #he e%istence of a C/A duly filed and submitted to the
)*LE, in compliance with the re(uirements and standards of the said office bars a certification election in the collective bargaining unit e%cept within the D, days prior to the e%piration of the life of such contract. *Foamtex Labor 3nion vs. 4ire tor o# Labor RelationsENERAL RULE: E-CEPT: TA9E NOTE: #he bureau shall 5*# entertain any petition for certification election. @2reedom periodBArt. 6I+, 6I+-A, 6ID8 3ithin D, days before e%piration of the five year term of the C/A. #he contract bar rule can be validly invo'ed only if the e%isting C/A contains substantially those materials that should be included in the C/A.

6u/lod ng Saulog <ransit v. Casalla ( :: %!il 7+( 7:2+ #he provisions of the law contemplates a situation8

7B 5*# *5LH when there had been 5* A:"EE1E5# entered into by and between employees or laborers and employer or management as to the terms and condition of employment. 6B /4# ALS* where there had been an agreement that leaves out many or the same matters on which the parties should have stipulated. &n the present case, the collective bargaining agreement entered into by and between the petitioners and company does not touch in substantial terms, the rate of pay, wages, hours of employment and other conditions of employment of all the employees in the company but see's to establish merely a grievance procedure for drivers, conductors, and inspectors who are members of the /u'lod ng Saulog. #he agreement being incomplete is no bar to a certification election. <A.E 0O<E$ C/A should be complete A# #9E #&1E *2 2&L&5: of petition for certification election, even if amended C/A is submitted wherein the terms and conditions are complete, it will not bar a petition for CE already filed. Contract need not be certified, only registered.

2.

i$e t3e +tat8torA reco&nition o4 t3e contract %ar r8#e : #he /ureau shall not entertain any petition for certification election which may disturb the administration of duly registered e%isting C/As affecting the parties. @Art. 2"2B

&!at is t!e e##e t o# an expired C6A on t!e ontra t bar rule) 5o petition for CE may be filed after the lapse of the D, day freedom period. #he old C/A is e%tended until a new one is filed. #he purpose is to ensure stability in the relationship of the wor'ers and the company by preventing fre(uent modifications of any C/A earlier entered into by them in good faith and for the stipulated original period. 5. ,he e+clusive bar!ainin! unit entered into a %&year ><# with the company. <ecause of intra&union conflict the ratified ><# was only re!istered with the 8.?( 5 months after it was ratified. # month later0 another union filed a petition for certification election. ,he petitionin! union contends that the contract was re!istered beyond the 5C&day period prescribed by #rt. 25B. Is the petition barred by the contract bar rule? Ye+. 5on-compliance with the procedural re(uirements of Art. 6+7 should not adversely affect the substantive validity of the C/A. A C/A is more than a contract. &t is highly impressed with public interest for it is an essential instrument to promote industrial peace. #o set it aside on technical grounds is not conducive to the public good. *<3C% vs. Laguesma$. >ompany # si!ned a 5&year ><# with 4nion K0 the duly authori'ed bar!ainin! representative. ,he ><# was never formally ratified by the (()s0 althou!h they all accepted and en/oyed the benefits under the ><#. BL months after the ><# was si!ned0 4nion @ filed a petition for certification election. Will the petition of 4nion @ prosper? No. 3hile there was no e%press ratification by the EEs, the fact that they received the benefits is an implied ratification of the C/A. #he non-submission of a copy of the C/A to the )*LE is a mere formal re(uirement which should not prevent the application of the contract bar rule. *Al antara #he C/A has to be certified before it can serve as a bar to a petition for certification election. <!e ontra t bar rule s!all not appl" i# t!e #ollo'ing onditions exist$ 7B #he agreement contains provisions lower than the standards fi%ed by law, or 6B #he documents supporting its registration are falsified, fraudulent, or tainted with misrepresentation. A++ociated Trade Union+ $. TraQano R8#in&: #he contract bar rule simply provides tha a petition for certification election or a motion for intervention can only be entertained within D,

days ."&*" to the e%piry date of an e%isting C/A. *therwise put, the rule prohibits the filing of a petition for certification election during the e%istence of a C/A e%cept within the Pfreedom period as it is called, when the said C/A is about to e%pire. #he purpose is to ensure stability in the relationship of the wor'ers and the management by preventing fre(uent modifications of any C/A earlier entered into by them in good faith and for the stipulated original period. A. DEFECTI.E CBA #he contract bar rule does not apply when the C/A which is the basis of the rule is defective. *AL3 vs. Ferrer>Calle=a/. INCOMPLETE CONTRACT #o be a bar to a certification election, the C/A must be ade(uate in that it comprises substantial terms and conditions of employment. *6u/lod ng Saulog vs. CasaliaC. 'ASTILY CONCLUDED CBA B. L months prior to the e+piration of the ><#0 the company and the union renewed the same for another 5 years. >an the renewed ><# be set up as a bar to the holdin! of the certification election? &f the C/A is prematurely renewed, such is not a bar to the holding of a certification election. #he E" and a friendly union can not by the mere e%pedient of prematurely renewing their C/A, effectively deprive the wor'ers of their right to freely select their bargaining agent. *Beneral <extiles Allied &or/ers Asso iation vs. 4ire tor o# Labor Relations2. #?4 had a ><# with 7#S#2. Several days before the e+piration of the ><# -#A?4 filed a petition for certification election. 8urin! the pendency of the representation case0 the ;ed&#rbiter en/oined 7#S#2 from enterin! into a ><# with any union. Fowever0 #?4 and 7#S#2 concluded a ><#. Is the new ><# a bar to certification election? No. #he C/A was hastily concluded, showing that the parties were in bad faith when they concluded the C/A. *AL3 vs. Ferrer>Calle=a). CBA T'AT DOES NOT FOSTER STABILITY 1ore than half of the members of a union resigned from it to form another union. &t later filed a petition for certification election within the D,-day freedom period. 1eanwhile the old union and the company entered into a new C/A. &s the contract bar rule applicableJ 5o. &t is doubtful if any contract that may have been entered into between AL4 and the company will foster stability in the bargaining unit in view of the substantial number of EEs that have resigned from the old union and 0oined the new union. *Firestone vs. EstrellaE. E-CEPTION )eviation from the contract bar rule is 0ustified only where the need for industrial stability is clearly shown to be the imperative. *%&3% vs. Laguesma2. .ALIDITY OF CBA SI NED DURIN REPRESENTATION DISPUTE

3hen a C/A is entered into at the time when a petition for certification election had already been filed by a union and was then pending resolution, the said C/A cannot be deemed permanent, precluding the commencement of negotiations by another union with management. *A<3 vs. <ra=anoI.D SUSPENSION OF CERTIFICATION ELECTION PREMUDICIAL GUESTION RULE S!ould be read in relation to Art. 29;d$ 3L%$

&t shall be unlawful for an employer to commit any of the following unfair labor practice. @dB #o initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organi$ation, including the giving of financial or other support to it or its organi$ers or supporters. B. 4nited >;> ,e+tile Wor*ers filed a complaint for unfair labor practice a!ainst >(-,(K and 7#A?40 alle!in! the >(-,(K helped and cooperated in the or!ani'ation of 7#A?4. 8urin! the pendency of the case0 7#A?4 filed a petition for certification election. ;ay the certification election be suspended pendin! the determination of the case? Hes. .endency of a formal charge of company domination is a pre0udicial (uestion that, until decided, bars proceedings for certification election the reason being that the votes of the members of the dominated union would not be free. #he rationale for the suspension of the election proceedings is that the certification election may lead to the selection of an E"-dominated or company union as the EEs bargaining representative, and when the court finds that the said union is E"-dominated in the 4L. case, the union selected would be decertified and the whole election proceedings would be rendered useless and nugatory. @United CMC TeLti#e ?or;er+ $+. BLR ) 12* SCRA "1<B RA<IO0ALE #or suspension the reason being, in the words of 1r. =ustice 1ontemayor, Mif there is a union dominated by the company0 to which some of the wor*ers belon!0 an election amon! wor*ers and employees of the company would not reflect the true sentiment and wishes of the said wor*ers and employees because the votes of the members of the dominated union would not be free.3 @1anila .aper 1ills Employees vs. Court of &ndustrial "elations, 7,C .hil. EAnd we have held, through 1r. =ustice =./.L. "eyes, that such charge of company domination is a pre0udicial (uestion that until decided, shall suspend or bar proceedings for certification election. @Standard Cigarette 3or'ersF 4nion vs. Court of &ndustrial "elations, 7,7 .hil. 76DB E&ndeed, if as a result of the .eltaFs complaint in Case 5o. 6II-4L., the 3or'ers 4nion should be ordered dissolved as a company dominated union, any election held in the meantime would be a waste of energy and money to all parties concerned.E #he rationale for the suspension of the election proceedings has been further amplified as follows8 E3hat is settled law, dating from the case of Standard Cigarette 3or'ersF 4nion v. Court of &ndustrial "elations @7,7 .hil. 76DB, decided in 7AI>, is that if it were a labor organi$ation ob0ecting to the participation in a certification election of a company-dominated union, as a result of which a complaint for an unfair labor practice case against the employer was filed, the status of the latter union must be first cleared in such a proceeding before such voting could ta'e place. &n the language of =ustice =./.L. "eyes as ponente8 ^As correctly pointed out by =udge Lanting in his dissenting opinion on the denial of petitionerFs motion for reconsideration, a complaint for unfair labor practice may be considered a pre0udicial (uestion in a proceeding for certification election when it is charged therein that one or more labor unions participating in the election are being aided, or are controlled, by the company or employer. #he reason is that the certification election may lead to the selection of an employer-dominated or company union as the employeesF bargaining representative, and when the court finds that said union is employer-dominated in the unfair labor practice case, the union selected would be decertified and the whole election proceedings would be rendered useless and nugatory.F #here would be an impairment of the integrity of the collective bargaining process if a companydominated union were allowed to participate in a certification election. #he timid, the timorous, and the faint-hearted in the ran's of labor could easily be tempted to cast their votes in favor of the choice of management. Should it emerge victorious, and it becomes the e%clusive representative of labor at the conference table, there is a frustration of the statutory scheme. &t ta'es two to bargain. #here would be instead a unilateral imposition by the employer. #here is need therefore to in(uire as to whether a labor organi$ation that aspires to be the e%clusive bargaining representative is company-dominated before the certification election.E

?'AT SUSPENDS8 ?'O MAY AS9 FOR SUSPENSION:

2ormal charge of 4L. against the employer for establishing a company union. *nly a union. CE cannot be suspended based on a pendency of a formal charge of 4L. against a labor organi$ation.

2. ?3o can 4i#e and =aintain an o77o+ition to t3e 3o#din& o4 t3e certi4ication e#ection
%a+ed on a c3ar&e o4 co=7anA do=inationF *nly the union who made the charge since it is the entity that stands to lose and suffer pre0udice by the certification election. @&d.B ?3at i4 t3ere i+ a 7endin& 8n4air #a%or 7ractice c3ar&e %A t3e ER a&ain+t t3e 8nion. Can t3i+ +taA t3e certi4ication e#ectionF 5o. *6arrera vs. CIR-

3. ?3at ;ind o4 c3ar&e o4 co=7anA do=ination >i## not +8+7end t3e certi4ication
7roceedin&+F A charge that is flimsy, made in bad faith or filed purposely to forestall the certification election. @&d.B #he mere allegation of one of the contesting L4 of company domination cannot suspend a CE. *nly a formal charge can do that #he filing of a formal charge is the basis of the pre0udicial (uestion of whether or not the said union is really company dominated I.> EFFECT OF PENDIN

PETITION FOR CANCELLATION OF TRADE UNION

RE ISTRATION
An order to hold a certification election is proper despite the pendency for cancellation of the registration certificate of union which is a party to the representation dispute. #he rationale for this is that all the time the respondent union filed its petition, it still had the legal personality to perform such act absent an order directing a cancellation. *Asso iation o# CA EE5s vs. Ferrer> Calle=a-

Section <. COLLECTI.E BAR AININ AND ISSUES

: PROCESS) PROCEDURES

<!e rig!t to olle tivel" bargain is Constitutionall" guaranteed. Art. MIII( Se . ,. #he State shall afford full protection to labor, local and overseas, organi$ed and unorgani$ed, and promote full employment and e(uality of employment opportunities for all. &t shall guarantee the rights of all wor'ers to self-organi$ations, COLLEC<IHE 6ARBAI0I0B A04 0EBO<IA<IO0S( and peaceful concerted activities, including the right to stri'e in accordance with law. #hey shall be entitled to security of tenure, humane conditions of wor', and a living wage. #hey shall also participate in policy and decision-ma'ing processes affecting their rights and benefits as may be provided by law. #he State shall promote the PRINCIPLE OF S'ARED RESPONSIBILITIES between wor'ers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. #he State shall regulate the relations between wor'ers and employers, recogni$ing the right of labor to its 0ust share in the fruits of production and the right of enterprises to reasonable returns on investments, and to e%pansion and growth.

<!is Constitutional guarantee is implemented b" t!e Labor Code. <!us it is also statutoril" guaranteed. Art 211 @aB #o promote and emphasi$e the primacy of FREE COLLEC<IHE 6ARBAI0I0B and negotiations, including voluntary arbitration, mediation and conciliation, as modes of setting labor or industrial disputesG It is implemented b" t!e #ollo'ing provisions o# t!e Labor Code$ 7. PROCEDURE Art. 6I, Art. 6I7 &n relation with Art. 6++ 6. DUTY TO BAR AIN COLLECTI.ELY Art. 6I6 Art. 6I+ +. TERMS Art. 6I+-A D.7

ENERAL CONCEPTS
of negotiation between an E" or E"s and the EEs organi$ation or union to reach an agreement on the terms and conditions of employment for a specified period. &t covers the entire range of organi$ed relationships between E"s and EEs represented by union, this includes the negotiation, administration, interpretation or application of the labor contract. *Al antara-

1. ?3at i+ co##ecti$e %ar&ainin&F Collective bargaining has been defined as the process

2. ?3at are t3e =o+t i=7ortant ai=+ or a+7ect+ o4 co##ecti$e %ar&ainin&J


,he most important aims are : a. #o establish industrial peace by enabling capital and labor to resolve their disputes and controversies on terms mutually acceptable and satisfactory to themselves. b. #o enhance industrial efficiency through speedy resolution of labor disputes concerning fi%ing of wages, wor'ing hours and other terms and conditions of contracts incorporating such agreements, and the ad0ustment or settlement of any grievance arising thereunder. c. #o establish benefits of labor higher or greater than those fi%ed by law. ,he various aspe ts are : a. #he duty of the parties to bargain and negotiate on proposals concerning wages, wor'ing hours and other terms and conditions of employment. b. #he duty of the parties to adhere to statutory standards of good faith, promptness and e%peditious actions. c. #he duty to refrain from unilateral changes concerning matters sub0ect to bargaining.

d. &n case there is an e%isting C/A, the duty to adhere faithfully to its terms and not
terminate or modify the same during its period of effectivity. *Al antara-

5. ?3at i+ t3e nat8re and 78r7o+e o4 co##ecti$e %ar&ainin&F

Collective bargaining is a democratic framewor' to stabili$e the relation between labor and management to create a climate of sound and stable industrial peace. &t is a mutual responsibility of the E" and the union and is their legal obligation. *lo" vs. 0LRC<. ?3at are t3e Q8ri+dictiona# 7recondition+ o4 co##ecti$e %ar&ainin&F #he mechanics of collective bargaining is set in motion only when the following 0urisdictional preconditions are present 8 a. .ossession of the status of ma0ority representation of the EEs representative in accordance with any of the means of selection or designation provided by the Labor Code. b. .roof of ma0ority representation. c. )emand to bargain under Art. 6I,. @&d.B D.6 BAR AINABLE ISSUES OBLI ATION TO NE OTIATE I MANDATORY BAR AININ SUBMECTS

1. It is t!e obligation o# t!e ER and t!e EE5s representative to bargain 'it! ea !


ot!er 'it! respe t to C'ages !ours and ot!er terms and onditions o# emplo"mentD. #hey are statutory of mandatory proposals re(uiring the party to whom they are made to bargain in good faith concerning them. *Azu ena- 9owever, the law does not compel agreements between E"s and EEs and neither party is obligated to yield even on a mandatory bargaining sub0ect, for as long as they bargain in good faith. @&d.B 2. ?3at are con+idered =andatorA +8%Qect+ o4 %ar&ainin&F a. 3ages and other types of compensation b. 3or'ing hours c. ?acations and holidays d. /onuses e. .ensions and retirement plans f. Seniority g. #ransfer h. Lay-off i. EEs wor'loads 0. 3or' rules and regulations '. "ent company houses l. 4nion security arrangements *Azu enam. 5o-Loc'out Clause n. Clause fi%ing contractual term. NON(MANDATORY SUBMECTS

1. #he right to bargain on a non-mandatory sub0ect does not include to right to insist on the
inclusions of the non-mandatory sub0ect in the C/A as a condition to any agreement. *Azu ena-

2.

i$e +o=e eLa=7#e+ o4 non(=andatorA +8%Qect+ 8 a. 1anagement prerogative clauses. b. 4nion discipline clause. c. Arbitration, stri'e vote or no-stri'e clauses.

0estle %!il. H 0LRC *7:, SCRA 289- 7::7 9EL)8 "etirement .lan was Ea collective bargaining issue right from the startE for the improvement of the e%isting "etirement .lan was one of the original C/A proposals submitted by the 42E to president of 5estle .hilippines.

#he unionFs original proposal was to modify the e%isting plan by including a provision for early retirement. #he company did not (uestion the validity of that proposal but merely offered to maintain the e%isting non-contributory retirement plan which it believed to be still ade(uate for the needs of its employees. #he union modified its proposal, but the company was adamant. &mpasse on the retirement plan become one of the issues certified to the 5L"C for compulsory arbitration. "etirement plan is negotiable. &nclusion of the retirement plan in the C/A as part of the pac'age of economic benefits e%tended by the company to its employees to provide them a measure of financial security after they shall have ceased to be employed in the company, reward their loyalty, boost their morale and efficiency and promote industrial peace, gives Ea consensual characterE to the plan so that it may not be terminated or modified at will by either party. #he fact that the retirement plan is non-contributory does not ma'e it a non-issue in the C/A negotiations. Almost all of the benefits granted to its employees under the C/A are noncontributory benefits. Since the retirement plan has been an integral part of the C/A since 7A>6, demand to increase the benefits due the employees is a valid C/A issue. Employees have a vested or demandable right to a non-contributory retirement plan. &t is an e%isting benefit voluntarily granted to them by their employer. D.+ BAR AININ

PROCEDURE

PRI.ATE PROCEDURE Art. 2:1 : &n the absence of the C/A, it shall be the duty of the E" and the representatives of the EEs to bargain collectively. IMPLICATION: .rovisions of this code are only supplementary not mandatory with regards to the process of collective bargaining. /ecause it is the policy of the state to promote the primacy of 2"EE collective bargaining. @677aB. Y #he Labor Code authori$es parties to provide for their own procedures in Collective /argaining but it must be more ES.E)&#&*4S that that provided in Art. 6I,. Y &f they are unable to agree they must follow procedure in the labor code @Art. 6I,B. 3hile it is a mutual obligation of the parties to bargain, the E", however, is not under any legal duty to initiate contract negotiation. CODE PROCEDURE De+cri%e t3e 7roced8re in co##ecti$e %ar&ainin& : In the absence of an a!reement or other voluntary arran!ement providin! for a more e+peditious manner of collective bar!ainin!0 the followin! procedures shall be observed : 7. 3hen a party desires to negotiate an agreement, it shall serve a written notice upon the other with a statement of its proposals. #he other party shall ma'e a reply thereto not later than 7, calendar days from the receipt of such notice. 6. Should difference arise on the basis of such notice and reply, either party may re(uest a conference which shall begin not later than 7, calendar days from date of re(uest. +. &f the dispute is not settled, the /oard shall intervene upon re(uest of either or both parties to conciliation meetings. #he /oard shall have the power to issue subpoenas re(uiring the attendance of the parties to such meetings. &t shall be the duty of the parties to participate fully and promptly in the conciliation meetings the /oard may call. C. )uring the conciliation proceedings in the /oard, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the dispute.

5. #he /oard shall e%ert efforts to settle disputes amicably and encourage the parties to
submit their case to voluntary arbitration. *Art. 228-

6. #he parties shall at the re(uest of either of them, ma'e available such up-to-date
financial information on the economic situation of the underta'ing, as is material and necessary for meaningful negotiations. 3here the disclosure of some of the information could be pre0udicial to the underta'ing, its communication may be made condition upon a commitment that it would be regarded as confidential to the e%tent re(uired. *Se . 2( Rule MIII( 6oo/ H( IRR5s-

7. &nformation and statements made at conciliation proceedings shall be treated as


privilege communication and shall not be used as evidence in the Commission. Conciliators and similar officials shall not testify in any court or body regarding any matters ta'en up at conciliation proceedings conducted by them. *Art. 2,,-

8. #he agreement negotiated by the EEs bargaining agent should not be ratified or
approved by the ma0ority of all the wor'ers in the bargaining unit. *Art. 2,7- L"atification in not needed when the C/A is a product of an arbitral award. #he arbitral award may result from voluntary arbitration or from the secretarys assumption of 0urisdiction or certification of the dispute to the 5L"C. *Azu ena-M Art. 228 in summar"$ 7B 6B All proposal and counter-proposal must be in writing. 5o verbal proposal or counterproposal. #ime periods are provided for by law. Re7#A: not later than 7, calendar days from receipt of notice. ReE8e+t 4or a con4erence shall begin 7, days after ma'ing such re(uest. TA9E NOTE: #his procedure is )&"EC#*"H in nature and not mandatory, failure to comply with the prescribed time periods will not amount to an unfair labor practice. Sta&e+ o4 t3e Co##ecti$e Bar&ainin& Proce++

STA E 1 Or&ani5ation(Re7re+enationa# normal course: Y 2ormation N registration of union Y "e(uest N grant of voluntary recognition Y .etition for certificationRconsent election @CEB Y 9olding of election Y Certification of e%clusive bargaining representative @E/"B

STA E 2 Bar&ainin& Pro7er normal course: Y /argaining preparations Y .resentation of proposals and Counterproposals Y /argaining on specific mandatory or nonmandatory items Y Conclusion of negotiationsG signing Y "atification Y "egistration of C/A

STA E " Contract Ad=ini+tration normal course: Y &mplamentation of of C/A provisions Y C/A (uestions submitted to N resolved through grievance machinery or voluntary arbitration Y "enegotiation on 6nd N +rd year of non-representational provisions Y 2reedom period on the Ith yearG holding of election to resolve EE representation detourDdeviation Y Stri'e because of gross violation of C/A economic provisions Y +rd party interventionG conciliationmediation or arbitration

detourDdeviation Y Election protest Y Appeal to Labor Secretary Y Certiorari in Court of Appeals Y Stri'e because of union busting or other 4L. by the E" Y +rd party interventionG conciliationmediation or arbitration

detourDdeviation Y Stri'eRloc'out because of bargaining deadloc' or 4L. in bargaining Y +rd party interventionG conciliationmediation or arbitration

Nationa# Union o4 Re+ta8rant ?or;er+ $. CIR ) 1D SCRA *1" /<10 9EL)8 &5 letter sent by the union containing its demands, there appears mar's, opposite each demand, such as a chec' for those demands to which 1rs. 2elisa 9errera was agreeable, a cross signifying the disapproval of 1rs. 9errera, and a circle regarding those demands which were left open for discussion on some future occasion that the parties may deem convenient. Such mar'ings were made during the discussion of the demands in the meeting. #hat 9errera had agreed to some of the demands shows that she did not refuse to bargain collectively. #res did not refuse to bargain collectively because they accepted some of the demands while they refused the others even leaving open other demands for future discussion. #hose demands were discussed at a meeting. 4nder Section 7C of "epublic Act <>I whenever a party serves a written notice upon the employer ma'ing some demands the latter shall reply not later than 7, days from receipt, but this condition is merel" pro edural. &ts non- compliance cannot be deemed to be an act of unfair labor practice. #res did not ignore the letter. 3hile #res denied the capacity of the complaining union to bargain collectively, this is because they were of the impression that before a union could have that capacity it must first be certified by C&". #his is what they stated in their answer to the petition for certification filed by said union. 2urthermore, another union also claimed to represent the ma0ority of the employees of restaurant. A. NATURE OF PROCEDURE Collective bargaining does not end with the e%ecution of an agreement. &t is a continuous process. #he duty to bargain imposes on the parties during the term of their agreement the mutual obligation to meet and confer promptly and e%peditiously and in good faith for the purpose of ad0usting any grievances or (uestion arising under such agreement. *RS6 vs. CIRDUTY TO BAR AIN EL7#ain t3e =eanin& o4 t3e d8tA to %ar&ain e44ecti$e#A : #he duty to bargain collectively means the performance of a mutual obligation to meet and confer promptly and e%peditiously and in good faith for the purpose of negotiating an agreement with respect to wages, hours of wor', and all other terms and conditions of employment including proposals for ad0usting grievances or (uestions arising under such agreement and e%ecuting a contract

incorporating such agreement if re(uested by either party, but such duty does not compel any party to agree to a proposal or to ma'e any concession. *Art. 222- &n case there is an e%isting collective contract, the duty shall include the obligation to adhere faithfully to its terms and not terminate or modify the same during its period of effectivity. *Art. 22,-

:ood faith bar!ainin! is genuine and reasonable bargaining


*ne cannot view an isolated act of a party and on that basis conclude that there is bad faith. 4ut" to bargain in good #ait! *Art. 222-$ Can be bro'en down into two components8 #he positive statement and the 5egative Statement. 1. POSITI.E STATEMENT 0A<3RE o# dut" to bargain8 1utual *bligation

IO&8 to meet and convene promptly and e%peditiously in good faith. %3R%OSE8 for the purpose of negotiating an agreement@C/AB

0EBO<IA6LE ISS3ES8 with respect to wages, hours of wor' and all other terms and conditions of employment including proposals for ad0usting any grievances or (uestions arising under such agreement 2. NE ATI.E STATEMENT DUTY: Tbut such duty does not compel any party to agree to a proposal or to ma'e any concession. ". E-ECUTION OF A CONTRACT: Art. 6I6 also states that it is part of the duty to bargain to eLec8te a contract incorporating such agreements if re(uested by either party. TA9E NOTE: .roposals embodied in minutes does not form part of the C/A. @Samahang 1anggagawa sa #op 2arm v. 5L"C @6AI SC"A 7>7, 7AA<B ARTICLE 2:". D8tA to %ar&ain co##ecti$e#A >3en t3ere eLi+t+ a co##ecti$e %ar&ainin& a&ree=ent. O 7. When there is a collective bar!ainin! a!reement0 the duty to bar!ain collectively shall also mean that neither party shall terminate or modify such a!reement durin! its lifetime. 2. Fowever0 either party can serve a written notice to terminate or modify the a!reement at least si+ty (EC) days prior to its e+piration date. 5. It shall be the duty of both parties to *eep the status 6uo and to continue in full force and effect the term and conditions of the e+istin! a!reement durin! the EC&day period andDor until a new a!reement is reached by the parties. .io#ation+ o4 D8tA to Bar&ain 72ailure or refusal to meet and convene 6Evading the purposes of bargaining +5ot observing :2 in bargaining C:rossly violating the economic provisions of the C/A 0at5l Congress o# 3nions( et . vs. Call =a Art. 6I+ of the LC provides that it shall be the duty of both parties to 'eep the status (uo and to continue in full force and effect the terms and conditions of the e%isting agreement during the D,-day freedom period andR or until a new agreement is reached by the parties. )espite the lapse of the formal effectivity of the C/A, the law still considers the same to be continuing in force and effect until a new C/A shall have been validly e%ecuted. D.C T'E CBA

?3at i+ t3e CBAF &t is a negotiated contract between a legitimate labor organi$ation and the E" concerning wages, hours of wor' and all other terms and conditions of employment in a bargaining unit, including mandatory provisions for grievances and arbitration machineries. *Se . 7( Rule HI( 6oo/ H( IRR5sRE ISTRATION ( PERIOD) REGUIREMENTS AND ACTIONS Art. 2"1 : 3ithin +, days from the e%ecution of a C/A the parties shall submit copies of the same directly to the /ureau or "egional *ffice of the )*LE for registration accompanied with verified proofs of its posting in 6 conspicuous places in the place of wor' and ratification by the ma0ority of all the wor'ers in the bargaining unit. #he /ureau or "egional *ffices shall act upon the application for registration of such C/A within I calendar days from the receipt thereof. #he "egional office shall furnish the /ureau with a copy of the C/A within I days from its submission. #he /ureau shall maintain a file of all C/As and other related agreements and records of settlements of labor disputes and copies of orders, decisions of voluntary arbitrators. #he file shall be open and accessible to interested parties under conditions prescribed by the Sec. of Labor and Employment. CONTRACT BENEFICIARIES DOCTRINE OF FAIR REPRESENTATION: 3hen a collective bargaining agreement is entered into by the union representing the employees N the employer, even the non-member employees in the appropriate bargaining unit are entitled to the benefits of the agreement. RATIONALE: #he rationale behind the e%tension of the benefits of a collective bargaining agreement even to non-union members is to preclude undue discrimination. Rivera v San Miguel 6re'er" *29 SCRA ;+- 7:+; &t is binding on all employees because a C/A is the law of the plant. "ivera stresses that he is not a member of the labor union, and Article S? of the private plan is not binding on him. Assuming he is not bound by the terms of the private plan, then it is only 0ust and logical that its benefits be withheld li'ewise from him. 3hen 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. #o accord its benefits only to members of the union without any valid reason would constitute undue discrimination against non-members. Ma tan &or/ers 3nion v Aboitiz *92 SCRA 211- 7:12 9EL)8 #he terms and conditions of a collective bargaining contract constitute the law between the parties. #hose who are entitled to its benefits can invo'e its provisions. &n the event that an obligation therein imposed is not fulfilled, the aggrieved party has the right to go to court for redress. 5or does it suffice as a defense that the claim is made on behalf of non-members of intervenor Associated Labor 4nion, for it is a well-settled doctrine that the benefits of a collective bargaining agreement e%tend to the laborers and employees in the collective bargaining unit, including those who do not belong to the chosen bargaining labor organi$ation.

1. A CBA 7ro$ide+ 4or t3e ded8ction o4 8nion d8e+ 4ro= non(=e=%er o4 t3e
%ar&ainin& 8nion. I+ t3e +ti78#ation $a#idF Hes. &t provides for the collection of an agency fee from the members who accept and en0oy the benefits attained through the efforts of the bargaining agent. #he non-union members should not be un0ustly enriched at the e%pense of the bargaining agent. *Al antara-

2. 'o> a%o8t i4 t3e +ti78#ation >a+ not 7ro$ided 4or in t3e CBA %8t >a+ =ere#A
reE8e+ted %A t3e %ar&ainin& 8nion 4ro= t3e ERF #he stipulation is still valid. EEs of an appropriate collective bargaining unit who are not members of the recogni$ed collective agent may be assessed a reasonable fee e(uivalent to the dues and other fees paid by members of the recogni$ed collective bargaining agent, if such union members accept the benefits under the C/A. #he individual authori$ation re(uired under

Art. 297 shall not apply to the non-members of the recogni$ed collective bargaining agent. *Art. 29;- #he law does not impose as a condition for the collection of the agency fee that the same be provided in the C/A, the basis of the unions right to the agency fee is (uasi-contractual, not contractual. *Al antara5. ,he ><# ne!otiated by union @ provides for wa!e increases to (()s in the production and maintenance department. ,o avoid discrimination0 the company also !ranted the increases to (()s in the administrative and sales department. 4nion @ now demands an a!ency fee from the (()s of these departments. Is such demand valid? No. &n the 7st place, the EEs in the latter 6 departments do not belong to the bargaining unit covered by the agreement. &n the 6nd place, the wage increases were not obtained through the efforts of union H. @&d.B CONTRACT ADMINISTRATION AND ENFORCEMENT A. NATURE OF CONTRACT

1. 3hile the terms and conditions of a C/A constitute the law between the parties, it is not,
however, an ordinary contract to which is applied the principles of law governing ordinary contracts. A C/A, as a labor contract within the contemplation of Art. 7>,,, 5CC which governs the relations between labor and capital, is not merely contractual in nature but impressed with public interest, thus it must yield to the common good. As such, it must be construed liberally rather than narrowly and technically, and the courts must place a practical and realistic construction upon it, giving due consideration to the conte%t in which it is negotiated and the purpose which it is intended to serve. *4avao Integrated vs. AbarGuez- 9owever, li'e ordinary contracts, ignorance of its terms by either party, including the EEs who are principals of the bargaining union, will not 0ustify the breach of the contract. *Manalang vs. Artex 9i=%er#A C#ar; P3i#+ $. Lorredo R8#in& A C/A, 0ust li'e any other contract, is respected as the law between the parties and compliance therewith in good faith is mandated. Similarly, the rules embodied in the CC on the proper interpretation of contracts can very well govern, the intention of the parties is primordial. &f the terms of the contract are clear, the literal meaning of the stipulations shall control. /ut if the words appear to be contrary to the evident intention of the parties, the latter shall prevail over the former.

SUBSTITUTIONARY DOCTRINE /Ben&8et Con+o#idated $. BCI EE+ R ?or;er+ Union0 #he substitutionary doctrine was formulated by the 5L"/ as its initial compromise solution to the problem facing it when there occurs a shift in the EEs union allegiance after the e%ecution of a bargaining contract with their E" by the simple e%pedience of changing their bargaining agent. #he EEs through their new bargaining agent, cannot renege on their C/ contract e%cept to negotiate with the management for the shortening thereof. &n formulating the subtitutionary doctrine, the only condition involved was the EEs interest in the e%isting C/A. =ustification for the doctrine is that the ma0ority of the EEs is the true party in interest to the contract. #he substitutionary doctrine cannot be invo'ed to support the contention that a newly certified C? agent automatically assumes all personal underta'ings li'e the no-stri'e stipulation in the C?A ! made by the deposed union. #he new C/A should have a prospective effect because of the hold over principle @Art. 6I+ ! 6I+-AB of the old C/A

2. ,he ><# was not formally ratified by the ma/ority of the wor*ers in the bar!ainin! unit. Fowever0 the wor*ers received and en/oyed the benefits under the ><#. >an the (()s later on have the contract invalidated for lac* of formal ratification? No. #he EEs have already en0oyed benefits from it. #hey cannot receive benefits under provisions favorable to them and later insist that the C/A is void simply because other provisions turn out not to the li'ing of certain EEs. *%lanters %rodu t vs. 0LRC5. #re wa!e increases paid by the (2 pursuant to laws and wa!e orders compliance with the wa!e increases provided for under a ><#? No. &n the absence of a provision of law or the C/A to the effect that benefits provided by the former encompass those provided by the latter, benefits derived from either law or a contract should be treated as separate from each other. A C/A is a contractual obligation. EE benefits derived from law are e%clusive of benefits arrived through negotiation and agreement unless otherwise provided by the agreement itself or by law. *Me" aua"an College vs. 4rilonQ a C/A is a contractual obligation, it is distinct from an obligation imposed by law B. RIE.ANCE PROCEDURE 6 DISPUTE SETTLEMENT: ISSUES AND INDI.IDUAL RIE.ANCE Art. 222 Ex lusive bargaining representation and 'or/ers parti ipation in poli " and de ision>ma/ing. = #he labor organi$ation designated or selected by the ma0ority of the employees in an appropriate collective bargaining unit shall be the e%clusive representative of the employees such unit for the purpose of collective bargaining. 9owever, an individual employer or group of employees shall have the right at any time to present grievances to their employer. Any provision of law to the contrary notwithstanding, wor'ers shall have the right, sub0ect to such rules and regulations as the Secretary of Labor and Employment may promulgate, to participate in policy and decision-ma'ing processes of the establishment where they are employed insofar as said processes will directly affect their rights, benefits, and welfare. 2or this purpose, wor'ers and employers may form labor-management councilsG .rovided, #hat the representatives of the wor'ers in such labor management councils shall be elected by at least the ma0ority of all employees in said establishment. Art. 2+8 Brievan e Ma !iner" and Holuntar" Arbitration. ! #he parties to a C/A shall include therein provisions that will ensure the =8t8a# o%+er$ance of its terms and conditions. #hey shall establish a machinery for the ad0ustment and resolution of grievances arising from @7B the interpretation or implementation of their C/A and @6B those arising from the interpretation or enforcement of company personnel policies. All grievances submitted to the grievance machinery which are not settled >it3in H ca#endar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the C/A. 7B or include in the agreement a procedure for the selection of such ?oluntary Arbitrator or panel of ?oluntary Arbitrators preferably from the listing of (ualified ?oluntary Arbitrators duly accredited by the /oard. 6B &n case the parties fail to select a ?oluntary Arbitrator or panel of ?oluntary Arbitrators, the /oard shall designate the ?oluntary Arbitrator or panel of ?oluntary Arbitrators, as may be necessary, 78r+8ant to t3e +e#ection 7roced8re a&reed 87on in t3e CBA, which shall act 2or this purpose, parties to a C/A shall name and designate in advance a ?oluntary Arbitrator or panel of ?oluntary Arbitrators,

with the same force and effect as if the ?oluntary Arbitrator or panel of Arbitrators has been selected by the parties as described above. B. 90 a member of a union that has been certified as the sole and e+clusive bar!ainin! representative of the (()s0 sends a letter to mana!ement re6uestin!0 in view of inflation0 for an increase in his wa!es. Is this allowed? Ye+. Although there may be an e%clusive bargaining agent, an individual EE or group of EEs have the right to present grievances to their E". &t would have been different if = demanded for wage increases for the other EEs. *Al antara Article 6D7 gives the ?*L45#A"H A"/&#"A#*" @or panel of ?oluntary ArbitratorsB original and e%clusive 0urisdiction to hear and decide8 74nresolved grievances arising from the interpretation or implementation of the collective bargaining agreementG and 6#hose arising from the interpretation or enforcement of company personnel policies. +Also violations of C/A, if not resolved through grievance machinery :ross ?iolations U flagrant andRor malicious refusal to comply with the economic provisions of the C/A &f the violation is :"*SS in character, treat as 4L. which should be heard and decided by a Labor Arbiter /4#, &n Art. 6D6, parties are allowed to submit the 4L. @gross violationsB to a voluntary arbitrator 4Even bargaining deadloc's and all other disputes may, %A a&ree=ent o4 t3e 7artie+, be considered proper sub0ect of voluntary arbitration.

As ruled by the SC in San Miguel Corp v. 0LRC *Mar ! 72( 7::+-$ A termination dispute may be submitted by the parties to voluntary arbitration, but in the absence of such agreement in clear and une(uivocal language, the dispute should be lodged with a #a%or ar%iter in line with article 67>. Caltex Re#iner" Emplo"ees Asso iation v. 6rilliantes ( 21: SCRA 27; *7::15o particular setup for a grievance machinery is mandated by law. "ather, Article 6D, of the Labor Code, as incorporated by "A D>7I, provides for only a single grievance machinery in the company to settle problems arising from Einterpretation or implementation of their collective bargaining agreement and those arising from the interpretation or enforcement of company personnel policies.E 3e believe that the procedure described by public respondent sufficiently complies with the minimum re(uirement of the law. .ublic respondent even provided for two steps in hearing grievances prior to their referral to arbitration. #he parties will decide on the number of arbitrators who may hear a dispute only when the need for it arises. Even the law itself does not specify the number of arbitrators. #heir alternatives O whether to have one or three arbitrators O have their respective advantages and disadvantages. &n this matter, cost is not the only considerationG full deliberation on the issues is another, and it is best accomplished in a hearing conducted by three arbitrators. &n effect, the parties are afforded the latitude to decide for themselves the composition of the grievance machinery as they find appropriate to a particular situation. At bottom, we cannot really impute grave abuse of discretion to public respondent on this issue. Master Iron Labor 3nion v 0LRC *27: SCRA 91- 7::, 9EL)8 4nion staged the stri'e only after the Corporation had failed to abide by the agreement forged between the parties upon the intervention of no less than the )*LE after the union had complained of the CorporationFs unabated subcontracting of wor'ers who performed the usual wor' of the regular wor'ers. Companys failure to traverse unions allegations that the 5L"C abused its discretion in holding that the provision on grievance procedure had not been e%hausted clearly sustains such allegation and upholds the contention that the Corporation refused to undergo said procedure.

&t should be remembered that a grievance procedure is part of the continuous process of collective bargaining. &t is intended to promote a friendly dialogue between labor and management as a means of maintaining industrial peace. #he CorporationFs refusal to heed re(uest to undergo the grievance procedure clearly demonstrated its lac' of intent to abide by the terms of the C/A. #he CorporationFs insistence that the hiring of casual employees is a management prerogative betrays its attempt to coat with legality the illicit curtailment of its employeesF rights to wor' under the terms of the contract of employment and to a fair implementation of the C/A. As to the no-stri'e clause in a C/A, it is applicable only to economic stri'es. Corollarily, if the stri'e is founded on an unfair labor practice of the employer, a stri'e declared by the union cannot be considered a violation of the no-stri'e clause. An economic stri'e is defined as one which is to force wage or other concessions from the employer which he is not re(uired by law to grant &n this case, stri'e was grounded on violation of the C/A or the CorporationFs practice of subcontracting wor'ersG discriminationG coercion of employeesG unreasonable suspension of union officials, and unreasonable refusal to entertain grievance. San Miguel Corp. v. 0LRC ,89 SCRA 7 *7::::rievance machinery is mandatory provision of the C/A. %AL v Santos *27; SCRA 972- 7::, 9EL)8 Section 6, Article &? of the .AL-.ALEA C/A states that division head shall answer the grievance within I days from the date of presentation. &f the division head fails to act within I days, the grievance must be resolved in favor of the aggrieved party. :rievance was filed with 1r. AbadFs secretary during his absence. 4nder Section 6, the division head shall act on the grievance within I days. :rievants 'new that division head was then Eon leaveE when they filed their grievance. #his 'nowledge, however, should not prevent the application of the C/A. 3hen Abad failed to act within the reglementary period, complainants, believing in good faith that the effect of the C/A had already set in, cannot be blamed if they did not conduct ramp inventory. &t is hard to believe that everything under AbadFs authority would have to stand still during his absence from office. Someone has to be left to attend to AbadFs duties. #his may be a product of inadvertence on the part of .AL management, but certainly, complainants should not be made to suffer the conse(uences. :rievance of employees is not a matter which re(uires the personal act of 1r. Abad and thus could not be delegated. .AL could at least have assigned an officer-in-charge to loo' into the grievance and possibly ma'e his recommendation to 1r. Abad. &t is of no moment that 1r. Abad immediately loo'ed into the grievance upon returning to wor', for it must be remembered that the grievants are wor'ingmen who suffered salary deductions and who rely so much on their meager income for their daily subsistence and survival. 3hen these employees first presented their complaint, .AL failed to act on it. &t was only after a formal grievance was filed and after 1r. Abad returned to wor' that .AL decided to turn an ear. :rievance machinery was established for both labor and management as a vehicle to thresh out whatever problem may arise in the course of their relationship, every employee is duty bound to present the matter before the management and give the latter an opportunity to impose whatever corrective measure is possible. C. CONTRACT DURATION AND RENE?ALS Art. 22,>A <erms o# a olle tive bargaining agreement. = %OLI<ICAL AS%EC<$ Any Collective /argaining Agreement that the parties may enter into shall, insofar as the representation aspect is concerned,

--

be for a term of five @IB years.

5o petition (uestioning the ma0ority status of the incumbent bargaining agent shall be entertained and no certification election shall be conducted by the )*LE -outside of the si%ty-day period immediately before the date of the e%piry of such five year term of the Collective /argaining Agreement. ECO0OMIC AS%EC<: All other provisions of the C/A shall be renegotiated not later than three @+B years after its e%ecution. Any agreement on such other provisions of the C/A entered into within si% months from the e%piry of the term of such other provisions as fi%ed in such C/A, shall retroact to the day immediately following such date. &f any such agreement is entered into beyond si% months, the parties shall agree on the duration of the retroactivity thereof, &n case of a deadloc' in the renegotiation of the C/A, the parties may e%ercise their rights under this Code. Boo; . R8#e -.I Sec. ": Ter=+ o4 co##ecti$e %ar&ainin& a&ree=ent--REPRESENTATION ASPECT: #he representation status of the incumbent e%clusive collective bargaining representative which is a party to a duly registered collective bargaining agreement shall be for a term of I years. 5o petition (uestioning the ma0ority status of the incumbent e%clusive bargaining representative shall be entertained And no certification shall be conducted by the )epartment outside of the si%ty-day period immediately before the date of e%piry of such five-year term. NON(REPRESENTATION ASPECT: All other provisions of said agreement shall, AS A 1A##E" *2 "&:9#, be renegotiated not later than three @+B years after its e%ecution. Any agreement on such other provisions shall retroact to the day immediately following such date. &f any such provisions are entered into beyond si% months, the parties shall agree on the duration of retroactivity. &n case of a deadloc' in the renegotiation, the parties may e%ercise their rights under the Code. &n the case of renegotiation, all re(uirements for registration prescribed under the two immediately preceding sections shall be complied with, whichever is applicable, e%cept payment of the registration fee. San Miguel Corp Emplo"ees 3nion v. Con#esor ( BR>7772+2 :?7:?:+ 'ELD: Article 6I+-A is a new provision. #his was incorporated by Section 67 of "epublic Act 5o. D>7I @the 9errera-?eloso LawB which too' effect on 1arch 67, 7A<A. #his new provision states that the C/A has a term of five @IB years instead of three years, before the amendment of the law as far as the representation aspect is concerned. All other provisions of the C/A shall be negotiated not later than three @+B years after its e%ecution. #he Ere7re+entation a+7ectS: -refers to the identity and ma0ority status of the union that negotiated the C/A as the e%clusive bargaining representative of the appropriate bargaining unit concerned. EA## ot3er 7ro$i+ion+E -simply refers to the rest of the C/A, economic as well as non-economic provisions, e%cept representation.

*bviously, the framers of the law wanted to maintain &5)4S#"&AL .EACE and stability by having both management and labor wor' harmoniously together without any disturbance. #hus, no outside union can enter the establishment within five @IB years and challenge the status of the incumbent union as the e%clusive bargaining agent. Li'ewise, the terms and conditions of employment @economic and non-economicB can not %e E8e+tioned %A t3e e=7#oAer+ or e=7#oAee+ d8rin& t3e 7eriod o4 e44ecti$itA o4 t3e CBA. #he C/A is a contract between the parties and the parties must respect the terms and conditions of the agreement. 5otably, the framers of the law did not give a fi%ed term as to the effectivity of the terms and conditions of employment. &t can be gleaned from their discussions that it was left to the parties to fi% the period. &n the instant case, it is not difficult to determine the period of effectivity for the nonrepresentation provisions of the C/A. #a'ing it from the history of their C/As, S1C intended to have the terms of the C/A effective for three @+B years rec'oned from the e%piration of the old or previous C/A which was on =une +,, 7A<A. 6. Contract continues to have legal effects even after its e%piry date, until a new C/A is renegotiated and entered into. *Lopez Sugar Corporation vs. FF&$. 4nion # and >o. < concluded a ><# with a duration of 5 years. 4pon the e+piration of the 5&year period0 >o. < discontinued to benefits under the ><#. Is this le!al? No. Art. 6I+ re(uires the parties to 'eep the status (uo and to continue in full force, and effect until a new agreement is reached. *Al antara Re7re+entation A+7ect /<D(daA FREEDOM PERIOD0 "efers to the identity and ma0ority status of the union that negotiated the C?A as the e%clusive bargaining representative A## ot3er re7re+entation+ "efers to the rest of the C?A, economic as well as non-economic ESCE.# representational provisions EFFECT OF E-PIRY %ier ; Arrastre v Con#esor ( 297 SCRA 2:9 *7::29EL)8 3hen there is a C/A, the duty to bargain collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime. Either party can serve a written notice to terminate or modify the agreement at least si%ty @D,B days prior to its e%piration date. &t shall be the duty of both parties to 'eep the status (uo and to continue in full force and effect the terms and conditions of the e%isting agreement during the D,-day period andRor until a new agreement is reached by the parties. All other provisions of the C/A shall be renegotiated not later than @+B years after its e%ecution. Any agreement entered into within si% @DB months from the date of e%piry of the term of such other provisions as fi%ed in such C/A, shall retroact to the day immediately following such date. &f any such agreement is entered into beyond si% months, the parties shall agree on the duration of retroactivity. Although a C/A has e%pired, it continues to have legal effects as between the parties until a new C/A has been entered into. &t is the duty of both parties to the C/A to 'eep the status (uo, and to continue in full force and effect the terms and conditions of the e%isting agreement during the D,-day freedom period andRor until a new agreement is reached by the parties. #he legal effects of the immediate past C/A between company and union terminated, and the effectivity of the new C/A began, only when Secretary resolved their dispute. 0e' %a i#i <imber and Suppl" Co. In v. 0LRC ( ,2; SCRA 989 *2888-

&SS4E8 3*5 the terms of an e%isting C/A particularly as to the economic provisions, can be e%tended beyond the three year period prescribed by law in the absence of a new agreementJ 9EL)8 4ntil a new C/A has been e%ecuted by and between the parties, they are duty bound to 'eep the status (uo and to continue in full force and effect the terms and conditions of the e%isting agreements. #he law does not provide for an e%ception nor (ualification as to which of the economic provisions of the e%isting agreements are to retain force and effect, therefore it encompasses all provisions. #he 5ew C/A is given ."*S.EC#&?E effect generally since 6I+ and 6I+-A provides for an automatic renewal clause in e%isting C/As. PURPOSE: #o avoid creating a gap during which no agreement would govern. /etter for industrial peace if effectivity of the C/A is longer. ). CBA AND "RD PARTY APPLICABILITY 4nless e%pressly assumed, labor contracts such as employment contracts and C/As are not enforceable against a transferee of an enterprise, labor contracts being in personam, thus binding only between parties. As a general rule, there is no law re(uiring a bona fide purchaser of assets of an ongoing concern to absorb in its employ the EEs of the latter. 9owever, although the purchaser of the assets or enterprise is not legally bound to absorb in its employ the EEs of the seller of such assets or enterprise the parties are liable to the EEs if the transaction between the parties is colored or clothed with bad faith. *AL3 vs. 0LRC A labor contract merely creates an action in personam and does not create any real right which should be respected by +rd parties. An innocent transferee of a business establishment has no liability to the EEs of the transferor to continue employing them. Sundo'ner 4ev5t. Corp. v 4rilon *7;8 SCRA 79- 7:;: 9EL)8 Labor contracts such as employment contracts and C/As are not enforceable against a transferee of an enterprise, labor contracts being in personam, thus binding only between the parties. A labor contract merely creates and action in 7er+ona= and does not create any real right which should be respected by third parties. #his conclusion draws its force from the rights of an employer to select his employees and to decide when to engage them. #he same can only be restricted by law through the e%ercise of police power. #here is no law re(uiring a bona fide purchaser of assets of an on-going concern to absorb in its employ the employees of the latter. 9owever, although the purchaser of the assets or enterprise is not legally bound to absorb in its employ the employers of the seller of such assets or enterprise, the parties are liable to the employees if the transaction between the parties is colored or clothed with bad faith. &n the CA/, it is undisputed that when 1abuhay surrendered the leased premises to Sy0uco and as'ed Sy0uco to offer same to other lessees it was Sy0uco who found Sundowner and persuaded to lease said premises. 1abuhay had nothing to do with the negotiations and consummation of the lease contract bet Sundowner and Sy0uco. Manlimos v. 0LRC ( 292 SCRA 792 *7::23e disagree with the Labor ArbiterFs reliance on the case of 1obil Employees Association vs. 5ational Labor "elations Commission. #he 5L"C was correct in holding that 1obil was not applicable because 1obil involved the termination of employment under Article 6<+ @before Article 6<CB of the Labor code and not termination of employment as a result of the change of corporate ownership, as in the case of private respondent Super 1ahogany .lywood

Corporation. &n 1obil, the original employer, 1obil *il .hilippines, &nc., completely withdrew from business and was even dissolved. &n the case at bar, there was only a change of ownership of Super 1ahogany .lywood Corporation which resulted in a change of ownership. &n short, the corporation itself, as a distinct and separate 0uridical entity, continues to e%ist. #he issue of whether there was a closing or cessation of business operations which could have operated as 0ust cause for the termination of employment was not material. #he change in ownership of the management was done bona fide and the petitioners did not for any moment before the filing of their complaints raise any doubt on the motive for the change. *n the contrary, upon being informed thereof and of their eventual termination from employment, they freely and voluntarily accepted their separation pay and other benefits and individually e%ecuted the "elease or 3aiver which they ac'nowledged before no less than a hearing officer of the )*LE. A change of ownership in a business concern is not proscribed by law. &n Central A$aucarera del )anao vs. Court of Appeals, this court stated8 #here can be no controversy for it is a principle well-recogni$ed, that it is within the employerFs legitimate sphere of management control of the business to adopt economic policies or ma'e some changes or ad0ustments in their organi$ation or operations that would insure profit to itself or protect the investment of its stoc'holders. As in the e%ercise of such management prerogative, the employer may merge or consolidate its business with another, or sell or dispose all or substantially all of its assets and properties which may bring about the dismissal or termination of its employees in the process. Such dismissal or termination should not however be interpreted in such a manner as to permit the employer to escape payment of termination pay. 2or such a situation is not envisioned in the law. &t stri'es at the very concept of social 0ustice. &n a number of cases on this point, the rule has been laid down that the sale or disposition must be motivated by &ood 4ait3 a+ an e#e=ent o4 eLe=7tion 4ro= #ia%i#itA. &ndeed, an innocent transferee of a business establishment has no liability to the employees of the transferor to continue employing them. 5or is the transferee liable for past unfair labor practices of the previous owner, e%cept, when the liability therefor is assumed by the new employer under the contract of sale, or when liability arises because of the new ownerFs participation in thwarting or defeating the rights of the employees. 3here such transfer of ownership is in good faith, the transferee is under no legal duty to absorb the transferorFs employees as there is no law compelling such absorption. #he most that the transferee may do, for reasons of public policy and social 0ustice, is to &i$e 7re4erence to t3e E8a#i4ied +e7arated e=7#oAee+ in the filling of vacancies in the facilities of the purchaser. E. CBA AND T'E SEC. OF LABOR AND EMPLOYMENT MaA t3e 7artie+ %e reE8ired %A t3e Sec. o4 La%or and E=7#oA=ent to eLec8te a CBA e=%odAin& ter=+ and condition+ t3at t3e #atter =aA deter=ineF Hes. #his is pursuant to the power of compulsory arbitration vested in the Secretary. @Art. 2<"B

Section H. UNFAIR LABOR PRACTICE


>.7 INTRODUCTORY CONCEPTS FOR A 3L% <O EMIS< <IE FOLLO&I0B M3S< CO0C3R$ 1. ?'O IS T'E ACTOR: &f under Art. 6C<8 Employer &f under Art. 6CA8 Labor *rgani$ation

Ta;e note:

that a Labor *rgani$ation may commit a 4L. under either 6CA or 6C<. Since Art. 676e recogni$es that there are times when a Labor *rgani$ation can be defined as an employer if it is in relation to its own employees. #hus if 4L. committed against its own employees, the Labor *rgani$ation is liable under Art. 6C<. &f Committed against it union members who are employees of a different employer, it commits 4L. under Art. 6CA.

2. ?3at ACT >a+ co==itted #hese acts are enumerated under Art. 6C< and 6CA ". ?a+ it directed a&ain+t t3e ri&3t to +e#4(or&ani5ation andBor co##ecti$e %ar&ainin&F &f yes, then it may be a 4L. case. &f 5o, then it cannot be a 4L. case. i$e t3e conce7t o4 8n4air #a%or 7ractice 8nder t3e La%or Code : 4nfair labor practices /.(I(D('i0 1. .io#ate the constitutional right of wor'ers and EEs to Self-organi$ation

2. Are ini=ica# to the legitimate interests of both labor and management, including their
right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect.

3. Di+r87t industrial peace. 4. 'inder the promotion of healthy and stable labor management relations.
4L. are not only violations of civil rights of both labor and management /4# are also criminal offenses against the state C&?&L AS.EC#S of all cases involving 4L. which may include claims for actual, moral, e%emplary and other forms of damages, attorneys fees and other affirmative reliefs, shall be under the 0urisdiction of labor arbiters resolve cases within +, days "ecovery of civil liability in the administrative proceedings shall bear recovery under the civil code.@5o double recoveryB 5o criminal proceeding may be instituted without a final 0udgment, finding that a 4L. was committed ."*?&)E), 9*3E?E", the final 0udgment in the administrative proceedings shall not be binding in the criminal case nor be considered as evidence of guilt /4# merely as proof of compliance of the re(uired re(uirements. Any allegation of 4L. has to be proved by facts and evidence. reat Paci4ic Li4e A++8rance Cor7. ) "D" SCRA 11" /1CCC0

PL E=7#oAee+ Union $.

3hile an act or decision of an employer may be unfair, certainly 5*# E?E"H 452A&" AC# or decision constitutes unfair labor practice @4L.B as defined and enumerated under Art. 6C< of the Labor Code. ,here should be no dispute that #?? the prohibited acts constitutin! unfair labor practice in essence relate to the wor*ers) 2I:F, ,. S(?A&.2:#-IG#,I.-. #hus, an employer may be held liable under this provision if his conduct affects in whatever manner the right of an employee to self-organi$e. #he decision of respondent :"E.AL&2E to consider the top officers of petitioner 45&*5 as unfit for reinstatement is 5*# essentially discriminatory and constitutive of an unlawful labor practice of employers under the above-cited provision.

Meanin& o4 Di+cri=ination )iscrimination in the conte%t of the Code involves either encouraging membership in any labor organi$ation or is made on account of the employees having given or being about to give testimony under the Labor Code. #hese have not been proved in the case at bar. #here can be 5* discrimination where the employees concerned are not similarly situated. A union officer has larger and heavier responsibilities than a union member. /y committing prohibited activities during the stri'e, de la "osa as ?. of 4nion demonstrated a higher degree of imprudence and irresponsibility. ?erily this 0ustifies his dismissal. %oli " o# t!e Labor Code Since the ob0ective of the Labor Code is to ensure a stable but dynamic and 0ust industrial peace, the dismissal of undesirable labor leaders should be upheld. Regarding Management prerogative in relation to 4is rimination &t bears emphasis that the employer is free to regulate all aspects of employment according to his own discretion and 0udgment. #his prerogative flows from the established rule that labor laws do not authori$e substitution of 0udgment of the employer in the conduct of his business. "ecall of wor'ers clearly falls within the ambit of management prerogative. ,he employer can e+ercise this prero!ative without fear of liability so lon! as it is done in 7B :**) 2A&#9 for the advancement of his interest and 6B not for the purpose of defeating or circumventing the rights of the employees under special laws or valid agreements. &t is valid as long as it is not performed in a malicious, harsh, oppressive, vindictive or wanton manner or out of malice or spite. "eadmitting the union members to the e%clusion of )omingo and de la "osa was nothing less than a sound e%ercise of management prerogative, an act of self-preservation in fact, designed to insure the maintenance of peace and order in the company premises. CONSTRUCTION Caltex Filipino Managers and Supervisors Assn. v CIR *99 SCRA ,28- 7:12 9EL)8 &t is imperative that in order to attain the laudable ob0ectives of "A <>I calculated to safeguard the rights of Ees, the provisions thereof should be liberally constructed in favor of the (( and strictly a!ainst the (2, unless otherwise intended by or patent from the language of the statute itself. >.6 REGUISITE RELATIONS'IP CONDITIONS PRECEDENT TO AN UNFAIR LABOR PRACTICE ?3at are t3e condition+ 7recedent to an 8n4air #a%or 7ractice c3ar&eF 1. #he in0ured party comes within the definition of EE as that term is defined by the Code. @EE-E" relationship e%istsB 6. #he act charged as unfair labor practice must fall under Art. 6C< or 6CA. " ,here must be an employer&employee relationship. Ameri an %resident Lines( In . v Clave *779 SCRA ;2+- 7:;2 9EL)8 Applying the 2our 2actors #est @selection and engagement, payment of wages, power of dismissal, and controlB, there e%ists no E"-EE relation between A.L and the individual watchmen. &t necessarily follows that the E" cannot be guilty of the 4L. charge as under "A <>I, such may occur only within the conte+t of an (2&(( relationship. ,his ne+t case is an e+ception0 the law created an artificial employer&employee relationship:

%!elps>4odge Corp. v 0LR6 *,7, 3.S. 711- 7:97 9EL)8 #his case is an e%ception to the rule laid down in American .resident Lines, an 4L. can be committed outside the E"-EE relationship because the policy of the law is to foster unionism. #he ultimate concern of the 5ational Labor "elation Act was to claimant the causes of certain substantial obstructions to the free flow of commerce. #his vital national purpose was to be accomplished by encouraging the practice and procedure of C/ and by protecting the e%ercise by wor'ers of full freedom of association. TA9E NOTE8 #he general rule is that for a 4L. case to arise there must be an employeremployee relationship, but if the employer re(uires as a condition for employment that the employees will 5*# 0oin the union, there is imposed an artificial employee-employer relationship for the purposes of unfair labor practice. #his is to achieve the policy ob0ectives of the law.

>.+ NO UNFAIR LABOR PRACTICE : ILLUSTRATI.E INSTANCES OF .ALID

E-ERCISE OF MANA EMENT RI 'TS


PERSONNEL MO.EMENTS

1. As a rule, it is the prerogative of the company to promote, transfer or even demote its
EEs to the other positions when the interests of the company reasonably demand it. 4nless there are instances which directly points to interference by the company with the EEs rights to self-organi$ation, the transfer of an EE should be considered as within the bounds allowed by law. *Rubber'orld vs. 0LRC-

2. N teachers were hired by a school on a yearly basis. ,he nine are members of a union.
#fter their 2nd yearly contract0 the school refused to renew their contract on the !round that their teachin! performances were not satisfactory. Is the refusal unfair labor practice? 5o. #he refusal was not by reason of their union membership but by reason of their poor teaching performances. *6ilboso vs. Hi torias MiningRANT OF PROFIT(S'ARIN BENEFITS TO NON(UNION MEMBERS

&t is the prerogative of management to regulate, according to its discretion and 0udgment, all aspects of employment. Such management prerogative may be availed of without fear of any liability so long as it is e%ercised in good faith for the advancement of the E"s interest and not for the purpose of defeating or circumventing the rights of EEs under special laws or valid agreement and are not e%ercised in a malicious, harsh oppressive, vindictive or wanton manner or out of malice or spite. *&ise vs. &ise EE5s 3nionFORCED .ACATION LEA.E #he forced vacation leave without pay in view of the economic crisis, being neither malicious, oppressive or vindictive, does not constitute unfair labor practice. *%!ilippine Brap!i vs. 0LRCISSUANCE OF RULES OR POLICY Every business enterprise endeavors to increase its profits. &n the process, it may adopt or devise means designed towards that goal. *SMC vs. Ople-

TA9IN

ACTION A AINST SLO?DO?N

EEs have the right to stri'e, but they have no right to continue wor'ing while re0ecting the standards desired by their E". 9ence, the E" does not commit as unfair labor practice by discharging EEs who engaged in slowdown, even if their ob0ect is a pay increase and therefore is lawful. *Azu enaEE DISCIPLINE #he dismissal of a union member because of threats made against the life of the E" and there being evidence that more active members of the union were retained is not an unfair labor practice. *%<3C vs. CIRCLOSED S'OP A REEMENTS )ismissal of an EE upon demand of a union pursuant to a closed shop agreement is not an unfair labor practice. *Lirag <extile vs. 6lan o-

>.C UNFAIR LABOR PRACTICE OF ER2S RESTRAINT) INTERFERENCE OR COERCION Art. 21* 8 &t shall be unlawful for the E" to interfere with, restrain or coerce EEs in the e%ercise of their right to self-organi$ation. Ta;e note: Comparing 6C<a with 6CAa8 interfere does not constitute a 4L. under 6CAa. Art.2::( ELc#8+i$e %ar&ainin& re7re+entation and >or;er+ 7artici7ation in 7o#icA and deci+ion(=a;in&.#he labor organi$ation designated or selected by the ma0ority of the employees in an appropriate collective bargaining unit shall be the e%clusive representative of the employees in such unit for the purpose of collective bargaining. 9*3E?E", an individual employee or group of employees shall have the right at any time to present grievances to their employer. Any provision of law not with standing, wor'ers shall have the right, sub0ect to such rules and regulations as the Secretary of Labor and Employment may promulgate, to Lparticipate in policy and decision-ma'ing processes of the establishment where they are employed insofar as said processes will directly affect their rights, benefits, and welfare. 2or this purpose, wor'ers and employers may form LA/*"-1A5A:E1E5# C*45C&LS8 .rovided, that the representatives of the wor'ers in such labor management councils shall be elected by at least the ma0ority of all employees in said establishment. @gB Art.2HH( Mi+ce##aneo8+ 7ro$i+ion+.( #he 1inistry shall help promote and gradually develop, 3&#9 #9E A:"EE1E5# of labor organi$ations and employers, LA/*" 1A5A:E1E5# C**.E"A#&*5 ."*:"A1S at appropriate levels of the enterprise based on shared responsibility and mutual respect in order to ensure industrial peace and improvement in productivity, wor'ing conditions and (uality of wor'ing life. &n establishments where no legitimate labor organi$ation e%ists, LA/*"-1A5A:E1E5# C*11&##EES may be formed ?*L45#A"&LH by wor'ers and employers for the purpose of promoting industrial peace.

@hB

#he )epartment of Labor and Employment shall endeavor to enlighten and educate the wor'ers and employers on their rights and responsibilities through labor education with emphasis on the policy thrusts of this Code. TA9E NOTE:

&nterfere is defined in the dictionary as8 to meddle, obstruct or hinder, to act in a way that impedes or obstructs others, to enter into the concern of others. #he Labor 1anagement Cooperation .rograms and the Labor 1anagement Committees could not be considered as interference of employer with the right to self-organi$ation since this committees and programs are entered into ?*L45#A"&LH and 3&#9 the A:"EE1E5# of the Labor 4nion. /esides, the purpose of this committee and program is the promotion of industrial peace.

1. Although e%perience has shown that certain forms of conduct, however disguised, either
directly or indirectly result in actual interference with or intimidation of EEs in e%ercising their rights, to distinguish between culpable interference from an innocent and noninterfering course of conduct is often difficult. &nterference with EE organi$ational rights was found where the superintendent of the E" threatened the EEs with cutting their payG increasing rent of the company houses, or closing the plant if they supported the union and where the E" encouraged the EEs to sign a petition repudiating the union. *Azu ena TOTALITY OF CONDUCT DOCTRINE An E"s e%pression of opinion about unioni$ation may or may not amount to 4L. depending on combination of circumstances. #he tota#itA o4 cond8ct doctrine holds that the culpability of the E"s remar's is to be evaluated not only on the basis of their implications, but against the bac'ground of collateral circumstances. 4nder this doctrine, e%pressions of opinion by an E", though innocent in themselves, fre(uently are held to be culpable or ob0ectionable because of the circumstances under which they are uttered. A. INTERRO ATION &n order that (uestioning of an EE concerning his union activities would not be deemed coercive, the E" must communicate to the EE the purpose of the (uestioning, assure him that no reprisal would ta'e place, and obtain his participation on a voluntary basis. &n addition, (uestioning must also occur in a conte%t free from E" hostility to union organi$ation and must not itself be coercive in nature. @&d.B 6lue Flas! Express( In . v. 0LR6 Ruling

3hen interrogation is conducted with the proper safeguards, the fact that it is systematic does not impart a coercive power to the interrogation. #he test is whether, under all circumstances, the interrogation with the EEs in the e%ercise of rights guaranteed by the act. 0ote$ #lthou!h this case mar*s an important departure from the previous practice in re/ectin! the doctrine that interro!ation per se is unlawful0 and adoptin! the principle that it is privile!ed: 7> '!en t!e purpose is legitimate 2> '!en a ompanied b" assuran es against reprisal( and ,> '!en una ompanied b" ot!er 3L%s Operating Engineers Lo al 9: v. 0LR6 Ruling

#he board revised the /lue 2lash test and announced the standards which may be used as guidelines to determine whether a poll by the E" is lawful. Absent unusual circumstances, the polling of EEs by an E" will be violative of Sec. <@aB @7B of the Act @prohibition on interference, restraint or coercion of EEs right to self organi$ationB unless the ffg safeguards are observed8 7the purpose of the poll is to determine the truth of a unions claim of ma0ority 6this purpose is communicated to the EEs +assurances against reprisals are given

Cthe EEs are polled by secret ballot, and Ithe E" has not engaged in 4L. or otherwise created a coercive atmosphere. /. PRO'IBITIN AND INTERFERIN IN OR ANI!IN ACTI.ITIES

i$e in+tance+ o4 8n4air #a%or 7ractice in t3e 4or= o4 7ro3i%ition+ a&ain+t 8nion or&ani5in& acti$itie+ :

1. "ule prohibiting solicitation of union membership in company property during nonwor'ing and wor'ing time. @&d.B /ut if the prohibition is merely during wor'ing hours, this is not unfair labor practice since the E" has the prerogative of promulgating rules and enhance production within its premises during wor'ing hours. *Al antara-

2. )ismissal of union members upon their refusal to give up their membership, under
prete%t of retrenchment due to reduced dollar allocations. *Manila %en il Co. vs. CIR-

3. "efusal over period of years to give salary ad0ustments according to improved salary
scales in the C/As. *6enguet Consolidated vs. 6CI EE5s 3nion-

4. )ismissal of an old EE allegedly for inefficiency, on account of her having 0oined a union
and engaging in union activities. *East Asiati vs. CIR-

5. &ssuance of suspension and termination orders for EEs participating in a verification


election. *Bo !ang o &or/ers 3nion vs. 0LRC-

6. )ismissal of EEs who refused to resign from their union and to affiliate with another one
which was formed at the instance of the E". *%rogressive 4evelopment vs. CIR-

7. C, the duly elected president of the union, was dismissed by the company for allegedly
threatening the lives of C EEs. &t was however established that he was very active in union affairs and that he was dismissed a day after his union sent collective bargaining proposals to the companyG and that C, had no reason to threaten the C EEs. *Ro"al 3ndergarment vs. CIR-

8. "efusal to renew teaching contracts of teachers because of fear of the school that there
will be a stri'e the succeeding semester. *Rizal>Memorial Colleges 3nion vs. 0LRCQ an apprehension that there might be a future stri'e in the school is not a ground for dismissal of the teachers Insular Li#e Emplo"ees Asso iation v. Insular Li#e Assuran e Co. *,1 SCRA 299- 7:17 9EL)8 2ree speech on both sides and for every faction on any side of the labor relation is to be made a constitutional and useful right. Labor is free to turn its publicity on any labor oppression, substandard wages or unfairness or ob0ectionable wor'ing condition. #he E" too, should be free to answer and turn publicity on the records of leader of the union which see's the confidence of his men. ?!en Inappli able #he protection of free speech is however, inapplicable where the e%pression of opinion by the E"Ragent contains a promise of benefit, threat or reprisal. 3hen the E" offered reinstatement and attempted to ^bribe the stri'ers with comfortable cots, free coffee, and occasional movies, *# pay for wor' performed in e%cess of < hours, and arrangement for their families, so the would abandon their stri'e and return to wor', it was in fact engaged in stri'e brea'ing and Ror union busting and conse(uently 4L.. #he respondents contend that the sending of the letters, e%hibits A and /, constituted a legitimate e%ercise of their freedom of speech. 3e do not agree.

#he said letters were directed to the stri'ing employees individually O by registered special delivery mail at that O without bein! coursed throu!h the 4nions which were representing the employees in the collective bargaining. 3L%> Individual bargaining or ommuni ation$ inter#eren e 'it! t!e rig!t o# olle tive bargaining$ E#he act of an employer in notifying absent employees I-8I1I84#??@ during a stri'e following unproductive efforts at collective bargaining that the plant would be operated the ne%t day and that their 0obs were open for them should they want to come in has been held to be an unfair labor practice, as an #>,I1( I-,(2A(2(->( with the ri!ht of collective bar!ainin! through dealing with the employees individually instead of through their collective bargaining representatives.E (5B #m. 9ur. %E50 citin! -?2< v. ;ont!omery Ward H >o. O># NthP B55 A2d EIE0 B$E #?2 BC$%) &ndeed, it is an unfair labor practice for an employer operating under a collective bargaining agreement to negotiate or to attempt to negotiate with his employees individually in connection with changes in the agreement. And the basis of the prohibition regarding individual bargaining with the stri'ers is that although the union is on stri'e, the employer is still under obli!ation to bargain with the union as the employeesF bargaining representative (;elo 7hoto Supply >orporation vs. -ational ?abor 2elations <oard0 52B 4.S. 552). ELa=7#e+ o4 ULP Indeed0 some such similar actions are ille!al as constitutin! unwarranted acts of interference. 7B #hus, the act of a company president in writing letters to the stri'ers, urging their return to wor' on terms inconsistent with their union membership, was ad0udged as constituting interference with the e%ercise of his employeesF right to collective bargaining (?i!hter 7ublishin!0 >># Ith0 B55 A2d E2B). 6B &t is li'ewise an act of interference for the employer to send a letter to all employees notifying them to return to wor' at a time specified therein, otherwise new employees would be engaged to perform their 0obs. +B &ndividual solicitation of the employees or visiting their homes, with the employer or his representative urging the employees to cease union activity or cease stri'ing, constitutes unfair labor practice. Co==on e#e=ent o4 a%o$e eLa=7#e+ All the above-detailed activities are unfair labor practices because they tend to undermine the concerted activity of the employees, an activity to which they are entitled free from the employerFs molestation. 1oreover, since e%hibit A is a letter containing promises of benefits to the employees in order to entice them to return to wor', it is not protected by the free speech provisions of the Constitution (-?2< v. >learfield >heese >o.0 Inc.0 2B5 A2d IC). #he same is true with e%hibit / since it contained threats to obtain replacements for the stri'ing employees in the event they did not report for wor' on =une 6 7AI<. #he free speech protection under the Constitution is inapplicable where the e%pression of opinion by the employer or his agent contains a promise of benefit, or threats, or reprisal (5B #m. 9ur. %$$Q -?2< vs. >learfield >heese >o.0 Inc.0 2B5 A2d ICQ -?2< vs. :oi!y >o.0 2BB A2d %550 5% #?2 2d $22). &ndeed, when the respondents offered reinstatement and attempted to EbribeE the stri'ers with Ecomfortable cots,E Efree coffee and occasional movies,E EovertimeE pay for Ewor' performed in e%cess of eight hours,E and EarrangementsE for their families, so they would abandon the stri'e and return to wor', they were guilty of stri'e-brea'ing andRor union-busting and, conse(uently, of unfair labor practice.

&t is e(uivalent to an attempt to brea' a stri'e for an employer to offer reinstatement to stri'ing employees individually, when they are represented by a union, since the employees thus offered reinstatement are unable to determine what the conse(uences of returning to wor' would be. Ot!er violations o# rig!t to sel#>organization8 ?i*ewise violative of the ri!ht to or!ani'e0 form and /oin labor or!ani'ations are the followin! acts8 7B the offer of a Christmas bonus to all EloyalE employees of a company shortly after the ma'ing of a re(uest by the union to bargainG 6B wage increases given for the purpose of mollifying employees after the employer has refused to bargain with the union, or for the purpose of inducing stri'ing employees to return to wor'G +B the employerFs promises of benefits in return for the stri'ersF abandonment of their stri'e in support of their unionG CB and the employerFs statement, made about D wee's after the stri'e started, to a group of stri'ers in a restaurant to the effect that if the stri'ers returned to wor', they would receive new benefits in the form of hospitali$ation, accident insurance, profit-sharing, and a new building to wor' in. Even a t o# inter#eren e is ine##e tive( it is still a 3L%$ #he circumstance that the stri'ers later decided to return to wor' ostensibly on account of the in0unctive writ issued by the Court of 2irst &nstance of 1anila cannot alter the intrinsic (uality of the letters, which were calculated, or which tended, to interfere with the employeesF right to engage in lawful concerted activity in the form of a stri'e. &nterference constituting unfair labor practice will not cease to be such simply because it was susceptible of being thwarted or resisted, or that it did not pro%imately cause the result intended. 2or success of purpose is not, and should not, be the criterion in determining whether or not a prohibited act constitutes unfair labor practice. <ES< OF I0<ERFERE0CE$ R,he test of whether an employer has interfered with and coerced employees within the meanin! of subsection (a) @7B is whether the employer has engaged in conduct which it may reasonably be said tends to interfere with the free e%ercise of employeesF rights under section + of the Act, and it is not necessary that there be direct evidence that any employee was in fact intimidated or coerced by statements of threats of the employer if there is a reasonable inference that anti-union conduct of the employer does have an adverse effect on self-organi$ation and collective bargaining.E (Arancisco0 ?abor ?aws BN%E0 1ol. II0 p. 5250 citin! -?2< v. Aord0 >.#.0 BN$L0 BIC A2d I5%). 4is rimination in t!is ase$ &t is not denied that when the stri'ers reported for wor' on =une 6, 7AI<, D+ members of the 4nions were refused readmission because they had pending criminal charges. 9owever, despite the fact that they were able to secure their respective clearances +C officials and union members were still refused readmission on the alleged ground that they committed acts inimical to the Companies. &t is beyond dispute, however, that non-stri'ers who also had criminal charges pending against them in the fiscalFs office, arising from the same incidents whence the criminal charges against the stri'ers evolved, were readily readmitted and were not re(uired to secure clearances. #his is a clear act of discrimination practiced by the Companies in the process of rehiring and is therefore a violation of sec. C @aB @CB of the &ndustrial .eace Act. #he respondents did not merely discriminate against all the stri'ers in general. #hey separated the active from the less active 4nionists on the basis of their militancy, or lac' of it, on the pic'et lines. 4nionists belonging to the first category were refused readmission even after they were able to secure clearances from the competent authorities with respect to Fthe criminal charges filed against them. &t is significant to note in this connection that e%cept for one union official who deserted his union on the second day of the stri'e and who later participated in crashing through the pic'et lines, not a single union officer was ta'en bac' to wor'. )iscrimination undoubtedly e%ists where the record shows that the union activity of the rehired stri'ers has been less prominent than that of the stri'ers who were denied reinstatement.

ESo is there an unfair labor practice where the employer, although authori$ed by the Court of &ndustrial "elations to dismiss the employees who participated in an illegal stri'e, dismissed only the leaders of the stri'ers, such dismissal being evidence of discrimination against those dismissed and constitution a waiver of the employerFs right to dismiss the stri'ing employees and a condonation of the fault committed by them.E @Carlos and 2ernando, Labor and Social Legislation, p. D6 citing .hil. Air Lines, &nc. v. .hil. Air Lines Employees Association, L-<7A>, *ct. +7, 7AI<.B. E)elayed reinstatement is a form of discrimination in rehiring, as is having the machinery of reinstatement in the hands of employees hostile to the stri'ers, and reinstating a union official who formerly wor'ed in a unioni$ed plant, to a 0ob in another mill, which was imperfectly organi$ed.E @1orabe, #he Law on Stri'es, p. C>+, citing Sunshine 1ining Co. > 5L"/ 76I6G Cleveland 3orsted 1ills, C+ 5L"/ ICIG italics supplied.B E(ually significant is the fact that while the management and the members of the screening committee admitted the discrimination committed against the stri'ers, they tossed bac' and around to each other the responsibility for the discrimination. #hus, :arcia admitted that in e%ercising for the management the authority to screen the returning employees, the committee admitted the non-stri'ers but refused readmission to the stri'ers @tsn., 2eb. D, 7AD6, pp. 7I-7A, 6+-6AB. ?icente Abella, chairman of the managementFs screening committee, while admitting the discrimination, placed the blame therefor s(uarely on the management @tsn., Sept. 6,, 7AD,, pp. >-<, 7C-7<B. /ut the management, spea'ing through the respondent *lbes, head of the Companies, disclaimed responsibility for the discrimination. 9e testified that E#he decision whether to accept or not an employee was left in the hands of that committee that had been empowered to loo' into all cases of the stri'ers.E @tsn., Sept. D, 7AD6, p. 7A.B C. .IOLENCE OR INTIMIDATION ?iolations have been found where the E" threatened EEs favoring the union with force or violence. *Azu ena- &n another case, the E" was found guilty of unfair labor practice when 6 EEs were provo'ed into a fight by 6 recently hired EEs pursuant to a strategy of the company designed to provide an apparent lawful cause for their dismissal and said dismissed EEs had not figured in similar incidents before or violated companys rules in their many years with the company. *Hisa"an 6i " le vs. 0L3). ESPIONA E AND SUR.EILLANCE *ne form of pressure which some over-eager E"s sometimes use is the practice of spying upon EEs. &nasmuch as the pressure results more from the EEs apprehension than from the E"s purpose in spying, and the use of its results, it has been held to be no answer to a charge of unfair labor practice that the fruits of espionage were not used. 3hen an E" engages in surveillance or ta'es steps leading his EEs to believe it is going on, a violation results because the EEs come under threat of economic coercion or retaliation for their union activities. *Azu ena-

In+8#ar Li4e EE+ A++ociation $. In+8#ar Li4e A++8rance Co. R8#in&


Espionage by an E" of union activities or surveillance thereof, are instances of interference, coercion or restraint of EEs in connection with the right to organi$e, 0oin and form unions as to constitute 4L.. 4L. is committed whether the espionage is carried out by a professional labor spy or detective, official or supervisory EEs, or fellow EEs at the re(uestRdirection of the E", or an e%-EE. E. ECONOMIC INDUCEMENTS 7. A violation results from an E"s announcements of benefits prior to a representation election, where it is intended to induce the EEs to vote against the union. @&d.B

2. While a stri*e is !oin! on0 the president of the company sent each wor*er a letter statin! amon! others that if the latter returned to wor*0 he can have his meals within the office0 ma*e a choice whether to !o home at the end of the day or to sleep ni!hts at the office0 en/oy free coffee and occasional movies. Is the writin! of the letter unfair labor practice? Hes. #he letter tends to undermine the concerted activity of the EEs, an activity which they are entitled free from the E"s molestation. *Insular Li#e EE5s Asso iation vs. Insular Li#e-

In+8#ar Li4e EE+ A++oc. $. In+8#ar Li4e A++8rance Co. R8#in&


3hen the E" offered reinstatement and attempted to Pbribe the stri'ers with comfortable cots, free coffee, and occasional movies, *# pay for wor' performed in e%cess of < hours, and arrangement for their families, so they would abandon their stri'e and return to wor', it was in fact engaged in stri'e brea'ing andRor union busting and conse(uently 4L.. 2. E-PRESSION OF ANTI(UNION OPINION &f the E" evinced willingness to be guided by and to accept the EEs choice, criticism or depreciating remar's made by the E" concerning a particular labor union or labor unions generally did not constitute an unfair labor practice, provided, of course, the remar's were not so hostile as to evidence or produce a coercive or intimidating purpose or effect. *Azu ena2.7 TOTALITY OF CONDUCT DOCTRINE #he culpability of E"s remar's were to be evaluated not only on the basis of their implicit implications, but were the be appraised against the bac'ground for and in con0unction with the collateral circumstances i.e. history of particular E"s labor relations or anti-union bias or because of their connection with an established collateral plan of coercion or interference. @&d.B Hisa"an 6i " le Manu. Co. v. 0at5l Labor 3nion ( 79 SCRA 2 *+2"othenberg has this to say8 E. . . it can be established that the true and basic inspiration for the employerFs act is derived from the employeeFs union affiliations or activities, the assignment by the employer of another reason, whatever its semblance or validity, is unavailing. #hus, it has been held that the facts disclosed that the employerFs acts in discharging employees were actually prompted by the employerFs improper interest in the affected employeeFs union affiliations and activities, even though the employer urged that his acts were predicated on economic necessity, desire to give employment to more needy persons, lac' of wor', cessation of operations, refusal to wor' overtime, refusal of non-union employees to wor' with union employees, seasonal lay-off, libelous remar's against management, violation of company rules.E @"othenberg on Labor "elations, pp. C,,-C,7G italics supplied.B Tran+#ation: An employer may have a valid ground for termination under Art. 6<6 or the companypolicies. Such act committed by the employee may be, standing alone, considered 0ust cause for termination. /4# if read with the circumstances and in light of unfair labor practice and the right to elf-organi$e, it may be considered as an unfair labor practice even though only a small connection e%ists. TOTALITY RULE: *ne single act may be innocent if standing alone, but if the totality of circumstance show that the employer was motivated by an unfair labor practice then a case for 4L. may arise. TA9E NOTE: Effect or failure of the act is immaterial. :. MASS LAY(OFF

1. A companys capital reduction efforts, a subterfuge, a deception, to camouflage the fact


that it has been ma'ing profits and to 0ustify mass lay-off of its EE ran's, especially of union members, were an unfair labor practice. *Madrigal and Compan" vs. Namora-

2. #here is unfair labor practice in the lay-off of a ban' of DI EEs who were active union
members allegedly by reason of retrenchment, although the ban' was not suffering any losses. *%eople5s 6an/ vs. %eople5s 6an/ EE5s 3nion:. LOC9OUTS) CLOSURE

1. A loc'out, actual or threatened, as a means of dissuading the EEs from e%ercising their
rights clearly an unfair labor practice. *Azu ena-

2. An E" which closes its business to put an end to a unions activities and which made no
effort to allow the EEs attempt to e%ercise their right to self-organi$ation and collective bargaining commits unfair labor practice. *S" C!i Jun/ S!op vs. Federa ion Obrero de la Industria-

3. 3here there is a simulated sale as a device to merely get rid of the EEs who were
members of the union, the company is guilty of unfair labor practice. *Mon ada 6i=on Fa tor" vs. CIR- #he ac(uiring company created to relieve the old company of its obligations is liable for the old companys obligations. *%LASL3 vs. S" Indong- #he doctrine of piercing the veil of corporate identity will be utili$ed, to the effect, that the separateness of corporate personality will be disregarded if it is being used to run away from corporate obligations. *4el#in vs. In iong9. RUN(A?AY S'OP #he transfer of an industrial plant from one location to another in order to discriminate against EEs at the old plant because of their union activities. *Azu ena Doctrine o4 SUCCESSOR EMPLOYER #he new company will be treated as a continuation or successor of the one that closed. &n such a case, the separated EEs will have to be employed in the new firm because in the first place they should not have been separated at all. &. REFUSAL TO 'IRE STRI9IN ?OR9ERS

#here is unfair labor practice in the refusal of E" to reinstate stri'ers who abandoned their stri'e and who voluntarily and unconditionally offered to return to wor'. *Crom'ell vs. CIRYELLO? DO CONTRACT

1. Art. 21* : &t shall be unlawful for the E" to re(uire as a condition of employment that a
person or an EE shall not 0oin a labor organi$ation or shall withdraw from one to which he belongs.

2. ?3at i+ a Ae##o> do& contractF &t is a promise e%acted from wor'ers a condition of
employment that they do not belong to, or attempt to foster, a union during their period of employment. #he typical yellow dog contract contains a representation by the EE that he is not a member of a labor union and a promise by him not to 0oin a labor union or upon 0oining a union to (uit his employment. *Al antara5. K0 a member of a union0 applied for employment with @ >o. ,he union is not amon! the unions in the bar!ainin! unit. Fe was told by the personnel mana!er that he cannot be employed unless he resi!ned from his union. K refuses to do so. Fe was not hired. Is this unfair labor practice?

Hes. #his is an e%ample of an e%action of a yellow dog contract. #he defense that S is not yet an EE of H is not tenable since the unfair labor practice covered by a yellow dog contract may be committed against a prospective EE. *Al antaraCONTRACTIN ?OR9 OUT

1. Art. 21* : &t shall be unlawful for an E" to contract out services or functions being
performed by union members when such will interfere with, restrain or coerce EEs in the e%ercise of their rights to self-organi$ation. 2. Shell dissolved its security !uard section0 transferred BL !uards to other departments and eventually dismissed them0 then contracted out to an independent security a!ency. Such section was amon! the departments covered by the e+istin! ><#. In the absence of an e+press reservation in the ><# of Shell)s ri!ht to abolish the section0 did the (2 commit unfair labor practice? Hes. #he dissolution of a section is a violation of the C/A, the terms of which cannot be unilaterally disregarded by either party. Shell should have specifically reserved its right to dissolve the sectionG a statement of management prerogatives couched in general terms is not sufficient. *S!ell Oil vs. S!ell Contracting wor' out by an E" is a 4L. when it is motivated by a desire to prevent his EEs from organi$ing and selecting a collective bargaining representative. COMPANY DOMINATED UNION

1. Art. 21* : &t shall be unlawful for an E" to initiate, dominate, assist or otherwise interfere
with the formation or administration of any labor organi$ation, including the giving of financial aid or other support to it or its organi$ers or supporters. 2. ?3at are t3e $ario8+ =ani4e+tation+ o4 do=ination o4 #a%or 8nionF a. &nitiation of the company union idea. #his may further occur in + styles8 7- outright formation by the employer or his representativesG 6- employee formation on outright demand or influence by the E"G +- managerially motivated formation by EEs b. 2inancial support to the union. An E" commits 4L. if he defrays the union e%penses or pays the fees of the attorney who drafted the union e%penses or pays the fees of the attorney who drafted the unions constitution and by-laws. c. E" encouragement and assistance &mmediately granting the union e%clusive recognition as a bargaining agent without determining ma0ority representation. d. Supervisory assistance Solicitation of membership, permitting union activities during wor'ing time or coercing EEs to 0oin the union by threats of dismissal or demotion. *%!ilippine Ameri an Cigarette Fa tor" 3nion vs. %!ilippine Ameri an Cigarette Fa tor"DISCRIMINATION

1. Art. 21* : &t shall be unlawful for an EE to discriminate in regard to wages, hours of
wor', and other terms and conditions of employment in order to encourage or discourage membership in any labor organi$ation. L)iscouraging membership in a labor organi$ation includes not only discouraging adhesion to union membership but also discouraging participation in union activities such as a legitimate stri'e. *Azu ena-O

2.

i$e +o=e eLa=7#e+ o4 di+cri=ination re+8#tin& in 8n4air #a%or 7ractice+ 8

a. )iscrimination in wor' (uota between members and non-members of union.


*AIS?%!ilippines EE5s 3nion vs. 0LRC-

b. )iscrimination in dissemination of bonus allocation of salary ad0ustments


between members and non-members of union contrary to previous practice of dividing e(ually the percentage of net profits. *Manila Iotel vs. CIR-

c. Even where business conditions 0ustified a lay-off of EEs, unfair labor practices
in the form of discriminatory dismissal were found where only unionists were permanently dismissed while non-unionists were not. *Manila %en il vs. CIR-

d. )iscrimination in regulari$ation between old EEs who were members of union


and new EEs who were non-members. #he new EEs were immediately given permanent appointments after their hiring. *Manila Railroad vs. .apisanan ng mga Manggaga'a sa Manila Railroade. &ndirect discrimination i.e. the discharge of an EE due to the union activities of wife, brother or husband. *Azu ena-

3. ?3at i+ t3e te+t o4 di+cri=ination to %e con+idered 8n4air #a%or 7racticeF &t is


necessary that the underlying reason for the discharge be established. #he fact that a lawful cause for discharge is available is not a defense where the EE is actually discharge because of his union activities. &f the discharge is actually motivated by a lawful reason, the fact that the EE is engaged in union activities at the time will not lie against the E" and prevent him from the e%ercise of his business 0udgment to discharge an EE for cause. @&d.B $. # company considers one factor for promotion the fact that an (( is Ilocano. #ssumin! this is discriminatory0 is this unfair labor practice? 5o. *nly such act as would interfere with the EEs right to self-organi$ation, encourage or discourage membership in a labor organi$ation, or discriminate against an EE of having given or being about to give testimony under the Code are considered unfair labor practices. #he said provisions, being penal in character, should be strictly construed. *Al antara&ise and Co. v. &ise and Co. Ee5s 3nion ( 71; SCRA 2,+ *;:9EL)8 #here can be no discrimination committed by company as the situation of the union employees are different and distinct from the non-union employees. &ndeed, discrimination per se is not unlawful. ,here can be no discrimination where the employees concerned are not similarly situated. #he union can not claim that there is grave abuse of discretion by the company in e%tending the benefits of profit sharing to the non-union employees as they are two @6B groups not similarly situated. #hese non-union employees are not covered by the C/A. #hey do not derive and en0oy the benefits under the C/A. #he grant by the company of profit sharing benefits to the employees outside the Ebargaining unitE falls under the ambit of its managerial prerogative. &t appears to have been done in good faith and without ulterior motive. 1ore so when as in this case there is a clause in the C/A where the employees are classified into those who are members of the union and those who are not. &n the case of the union members, they derive their benefits from the terms and conditions of the C/A contract which constitute the law between the contracting parties. /oth the employer and the union members are bound by such agreement. """ ,he 7rofessor critici'es the practice of e+tendin! the benefits of a ><# to non&union members outside the appropriate bar!ainin! unit because it has a chillin! effect on the union. In the Wise case0 the company e+tended the profit sharin! benefit in ><# to those outside its covera!e. Di+cri=ination S>ee7+ta;e+ Sta44 Per+onne# R8#in& : PCSO $ A++oc. o4

4nder "A <>I, an E" commits an 4L. when it discriminates against a labor union in favor of another. )iscriminatory acts under the applicable law are not limited to hiring or tenure but e%tend to terms and conditions of employment. An E" can discriminate in favor of a union, even if it were not company dominated. )iscriminatory acts can be effected against a union itself. Since the .CS* e%tended privileges and concessions to the .CSS4 while denying the same privileges and concessions to the respondent union at a time when neither union had been recogni$ed as sole bargaining representative.

CLAUSE

.ALID DISCRIMINATION: UNION SECURITY

4nion security clause is any form of agreement which imposes upon EEs the obligation to ac(uire or retain union membership, otherwise their employment will be terminated. #he ob0ective is to assure continued e%istence of the union through enforced membership. &n a sense, there is discrimination when certain employees are obliged to 0oin a particular union. /ut is discrimination favoring unionismG it is a valid 'ind of discrimination. .IOLATION OF DUTY TO BAR AIN

1. Art. 21* : &t shall be unlawful for an E" to violate the duty to bargain collectively as
prescribed by this Code.

2. 3hile the law does not compel the parties to reach an agreement, it does contemplate
that both parties will approach the negotiation with an open mind and ma'e reasonable effort to reach a common ground of agreement. *.io/ Lo" vs. 0LRC5. #?4 was certified as the bar!ainin! a!ent of <almar Aarms. <almar subse6uently received a letter by the president of the union of its wor*ers that they wanted to ne!otiate directly with the company and not throu!h #?4. <ecause of this0 <almar refused to ne!otiate with #?4. Is this unfair labor practice? Ye+. AL4 has been certified as the e%clusive bargaining agent, and it is not for /almar to (uestion which group is the bargaining representative of its wor'ers. *6almar #arms vs. 0LRC A 4L. is committed when it is shown that the E", after having been served with a written bargaining proposal did not even bother to submit a reply. TESTIMONY OF EE Art. 21* : &t shall be unlawful for an E" to dismiss , discharge or otherwise pre0udice or discriminate against an EE for having given or being about to give testimony under this Code. NE OTIATION OR ATTORNEYS FEES Art. 21* : &t shall be unlawful for an E" to pay negotiation of attorneys fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute. .IOLATION OF CBA

1. Art. 21* : &t shall be unlawful for an EE to violate a C/A. 2. Art. 2<1 : ?iolations of a C/A, e%cept those which are gross in character, shall no longer
be treated an unfair labor practice and shall be resolved as grievances under the C/A. >.I UNFAIR LABOR PRACTICE OF LABOR OR ANI!ATIONS

RESTRAINT OR COERCION BY LABOR OR ANI!ATION

1. Art. 21C : &t shall be unfair labor practice for a labor organi$ation to restrain or coerce
EEs in the e%ercise of their right to self-organi$ation. 9owever, a labor organi$ation shall have the right to prescribe its own rules with respect to the ac(uisition or retention of membership. TA9E NOTE: Interfere is not included as an act of 4L. under 6CAa because a labor organi$ation shall have the right to prescribe its own rules with respect to the ac(uisition or retention of membership.

2. #he provision is violated by a unions restraining or coercing an EE in the e%ercise of his


right to refuse to participate or recogni$e a stri'e i.e. bloc's their ingress and egress from the plant or damages their automobiles. *Azu enaDISCRIMINATION

1. Art. 21C : &t shall be unfair labor practice for a labor organi$ation to cause or attempt to
cause an E" to discriminate against an EE, including discrimination against an EE with respect to who, membership in such organi$ation has been denied or to terminate an EE on any ground other than the usual terms and conditions under which membership is made available to other members.

2. #he union may not arbitrarily use the union security clause to un0ustly discriminate
against non-members of the union. *Salunga vs. CIR5. 8ue to ne!li!ence of a mother federation in attendin! to a case filed by its local a!ainst the (20 52 out of the 5E members of the local union si!ned a resolution of disaffiliation from the mother federation. ,he federation demanded dismissal of the union members pursuant to the maintenance of membership clause in the ><#. ,hereafter0 the union members were dismissed. Is there unfair labor practice? Hes. #he union members were dismissed by reason of their freedom to disaffiliate. *Libert" Cotton Mills &or/ers 3nion vs. Libert" Cotton Mills-

4. ?3at i+ t3e #ia%i#itA o4 t3e ER and t3e =ot3er 4ederationF #he companys liability
should be limited to reinstatement considering that the dispute revolve around the mother federation and its local. #he mother federation at whose instance the wor'ers were dismissed, should be held liable for payment of bac'wages. @&d.B REFUSAL TO BAR AIN Art. 21C : &t shall be unfair labor practice for a labor organi$ation to violate the duty, or refuse to bargain collectively with the E", provided it is the representative of the EEs. FEAT'ERBEDDIN AND MA9E(?OR9 ARRAN EMENTS

1. Art. 21C : &t shall be unfair labor practice for a labor organi$ation to cause or attempt to
cause an E" to deliver or agree to pay or deliver any money or other things of value, in the nature of an e%action, for services which are not performed or not to be performed including the demand for free for union negotiations.

2. De4ine FEAT'ERBEDDIN

: 5ame given to EE practices which create or spread employment by unnecessarily maintaining or increasing the number of EEs used, or the amount of time consumed to wor' on a particular 0ob. *Azu ena-

5. # union in a company declares a stri*e to compel the (2 to assi!n 2 chec*ers to B container. If it can be established that only B chec*er is needed for a container0 has the union committed in unfair labor practice?

Hes. #he union is guilty of featherbedding. NE OTIATION FEES Art. 21C : &t shall be unfair labor practice for a labor organi$ation to as' for or accept negotiations or attorneys fees from the E"s as part of the settlement of any issue in collective bargaining or any other dispute. CS'eet!eart Contra tD .IOLATION OF CBA

1. Art. 21C : &t shall be unfair labor practice for a labor organi$ation to violate a C/A. 2. Art. 2<1 : ?iolations of a C/A, e%cept those which are gross in character, shall no longer
be treated as unfair labor practice and shall be resolved as grievances under the C/A. _:ross ?iolations of a C/A M 2lagrant andRor malicious refusal to comply with the economic provisions of such agreement. *Al antara>.D ENFORCEMENT) REMEDIES AND SANCTIONS PARTIES LIABLE FOR ACTS

1. ?3o =aA co==it an 8n4air #a%or 7racticeF #he E" or a labor organi$ation may
commit unfair labor practices. @&d.B

2. In ca+e t3e ER co==ittin& t3e 8n4air #a%or 7ractice+ i+ a cor7oration) a++ociation


or 7artner+3i7) >3o =aA %e 3e#d cri=ina##A #ia%#eF *nly the officers and agents of corporations, associations or partnerships who have actually participated in, authori$ed or ratified the unfair labor practices shall be held criminally liable. @Art. 21*B

3. ?3o =aA %e 3e#d cri=ina##A #ia%#e 4or t3e 8n4air #a%or 7ractice+ co==itted %A
#a%or 8nion+F *nly the officers, members of governing boards, representatives or agents or members of labor associations or organi$ations who have actually participated in, authori$ed or ratified the unfair labor practices shall be held criminally liable. @Art. 21CB PROSECUTION AND PRESCRIPTI.E PERIOD A. CI.IL ASPECT

1. Art. 21H : Sub0ects to the e%ercise by the .resident or by the Secretary of Labor and
Employment of the powers vested in them by Arts. 6D+ and 6DC of this Code, the civil aspects of all cases involving unfair labor practices which may include claims for actual, moral, e%emplary and other forms of damages, attorneys fees and other affirmative relief, shall be under the 0urisdiction of the Labor Arbiters. #he Labor Arbiters shall revolve such cases within +, days from the time they are submitted for decision. "ecovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code.

2. Art. 2CD : All unfair labor practices shall be filed with the appropriate agency within 7
year from the accrual of such unfair labor practice, otherwise, they shall be forever barred. /. CRIMINAL ASPECT

1. Art. 21H : 5o criminal prosecution may be instituted without a final 0udgment finding that
an unfair labor practice was committed, having been first obtained in the administrative proceedings. )uring the pendency of the administrative proceeding, the running of the period of prescription of the criminal offense herein penali$ed shall be considered

interrupted. #he final 0udgment in the administrative proceeding shall not be binding in the criminal case nor be considered as evidence of guilt but merely as proof of compliance of the re(uirements therein set forth.

2. Art. 2CD : All unfair labor practices shall be filed with the appropriate agency within 7
year from the accrual of such unfair labor practice, otherwise, they shall be forever barred.

3. Art. 22* : #he criminal charge shall fall under the concurrent 0urisdiction of the 1unicipal
or regional trial Court.

4. ?3en i+ an 8n4air #a%or 7ractice dee=ed to %e 78re#A an ad=ini+trati$e o44en+e


and not a cri=ina# actF 3hen the acts complained of hinges on a (uestion of interpretation or implementation of ambiguous provisions of an e%isting C/A. @Art. 2**B COMPROMISE 4nfair labor practice is not sub0ect to compromise. *Bo !ang o &or/ers 3nion vs. 0LRCAF%M6AI v. AF%M6AIE3 *:1 SCRA 172- 7:;8 9EL)8 Wuitclaims and releases e%ecuted by EES do not estop them from pursuing their claims arising from the 4L. of the E". #he basic reason is that such (uitclaims are against public policy and therefore, null and void. Since the dismissal of the EES constituted 4L., it is immaterial whether some have e%ecuted (uitclaims or not. #he acceptance of termination pay does not divest the laborer of the right to prosecute his E" for 4L.. #he reason is that the EE is placed in a position where he needs to have money, a case of adherence not of his choice. 4L. acts are beyond compromises such as (uitclaims, releases and settlement. Are t!e rules stated above abandoned in t!e ase o# Re#ormist 3nion) 5o. "eformist is a case of compulsory arbitration. Re#ormist 3nion v. 0LRC ( 2++ SCRA 17, *7::1#he dispute or stri'e was settled when the company and the union entered into an agreement on 7A =anuary 7AA, where the private respondents agreed to accept all employees who by then, had not yet returned to wor'. /y acceding to the peaceful settlement bro'ered by the 5L"C, the private respondents waived the issue of the illegality of the stri'e. #he very nature of compulsory arbitration ma'es the settlement binding upon the private respondents, for compulsory arbitration has been defined both as Ethe process of settlement of labor disputes by a government agency which has the authority to investigate and to ma'e an award which is binding on all the parties,E and as a mode of arbitration where the parties are Ecompelled to accept the resolution of their dispute through arbitration by a third party.E Clearly then, the legality of the stri'e could no longer be reviewed by the Labor Arbiter, much less by the 5L"C, as this had already been resolved. &t was the sole issue submitted for compulsory arbitration by the private respondents, as is obvious from the portion of their letter (uoted above. #he case certified by the Labor Secretary to the 5L"C was dismissed after the union and the company drew up the agreement mentioned earlier. #his conclusively disposed of the stri'e issue. #he agreement entered into by the company and the union, moreover, was in the nature of a compromise agreement, i.e., Ean agreement between two or more persons, who for preventing or putting an end to a lawsuit, ad0ust their difficulties by mutual consent in the manner which they agree on, and which everyone of them prefers to the hope of gaining, balanced by the danger of losing.E #hus, in the agreement, each party made concessions in favor of the other to avoid a protracted litigation.

While we do not abandon the rule that Runfair labor practice acts are beyond and outside the sphere of compromises0R the a!reement herein was voluntarily entered into and represents a reasonable settlement0 thus it binds the parties. *n this score, the Labor Code bestows finality to unvitiated compromise agreements8 Art. 66>. Compromise agreements. O Any compromise settlement, including those involving labor standard laws, voluntarily agreed upon by the parties with the assistance of the /ureau or the regional office of the )epartment of Labor, shall be final and binding upon the parties. #he 5ational Labor "elations Commission or any court shall not assume 0urisdiction over issues involved therein e%cept in case of non-compliance thereof or if there is prima facie evidence that the settlement was obtained through fraud, misrepresentation or coercion. RELIEF IN UNFAIR LABOR PRACTICE CASES ?3at are t3e $ario8+ 4or=+ o4 re#ie4 a$ai#a%#e in 8n4air #a%or 7ractice ca+e+F

1. Cea+e and De+i+t Order ! *rder served upon such person re(uiring him to cease and
desist from such unfair labor practice.

2. A44ir=ati$e order ! )irecting full reinstatement of EE with bac' pay. 3. Di+e+ta%#i+3=ent ! *rders directing the E" to withdraw all recognition from a
company-dominated labor union and to disestablish the same.

4. Order to %ar&ain ! Affirmative order to the respondent to bargain with the bargaining
agent. PENALTIES Art. 2** : E%cept as otherwise provided in this Code, or unless the acts complained of hinges on a (uestion of interpretation or implementation of ambiguous provisions of an e%isting C/A, any violation of the provisions of this Code declared to be unlawful or penal in nature shall be punished with 7. A fine of not less than .7,,,,.,, nor more than .7,,,,,.,, or 6. &mprisonment of not less than + months or more than + years , or +. /oth such fine and imprisonment at the discretion of the court. &n addition to such penalty, any alien found guilty shall be summarily deported upon completion of service of sentence.

Section. *. UNION SECURITY


<.7 STATUTORY BASIS Art. 21* : 5othing in this Code or in any other law shall stop the parties from re(uiring membership in a recogni$ed collective bargaining agent as a condition of employment, e%cept those EEs who are already members of another union at the time of the signing of the C/A. <.6 TYPES 6 UNION SECURITY PRO.ISIONS ?3at are t3e di44erent tA7e+ o4 8nion +ec8ritA arran&e=ent+F

1. C#o+ed +3o7 ! Agreement whereby an E" binds himself to hire only members of the
contracting union who must continue to remain members of the union in good standing for the duration of the agreement as a condition for the continued employment.

2. Union +3o7 ! *ne whereby an E" is permitted to employ a non-union-wor'er, but to


retain employment such wor'er must become a union member after some period and maintain his membership therein in good standing for the duration of the agreement.

3. Maintenance o4 =e=%er+3i7 c#a8+e ! )oes not re(uire non-members to 0oin the union
but provides that those who do 0oin must maintain their membership for the duration of the union contract, under penalty of discharge.

4. A&encA +3o7 ! An agreement whereby EEs must either 0oin the union or pay to the
union as e%clusive bargaining agent a sum e(ual to that paid by members.

PREFERENTIAL S'OP A REEMENT


#he E" agrees to give preference to the members of the bargaining union in hiring or filing of vacancies and retention in case of lay-off. #he E" can hire in the open mar'et if union members are not available All things being e(ual, union members are given preference over non-union members with regards to hiring. Di+tin&8i+3 c#o+ed +3o7 4ro= 8nion +3o7 : Q C#o+ed +3o7 ! #he E" cannot hire any wor'er who is not a member of the contracting union. 1embership in the contracting union is a condition for employment and retention of employment. Q Union +3o7 ! E" may hire wor'er who is not a member of the contracting union but the wor'er must within a specified period after his employment become a member of the contracting union. 1embership in the contracting union is a condition for continued employment. 'irin& 3nion S!op Contin8ed E=7#oA=ent Employees have After some time, access to labor employee must mar'et. Can be become a member hired even if not union member. ro8nd 4or Ter=ination &f they employee does not 0oin the union after a reasonable time, it will be grounds for termination After due process is observed &f not a member at anytime, grounds for termination After due process is observed &f disaffiliates from union, grounds for termination After due process is observed

Closed S!op

Employee must become a member at the time of hiring

1ust be a member all through-out

Maintenan e s!op

Already a member at the time of hiring

1ust maintain membership, otherwise it shall be a ground for termination

<.+ RATIONALE #he validity of a union security provisions is largely recogni$edG it is intended to ma'e the union strong so that true collective bargaining may be assured. Statutes recogni$ing the validity of closed shop agreements have been 0ustified on the basis of police power. #he recognition of the validity of such agreements has been held to be the most pri$ed achievement of unionism. *Juat vs. CIRRATIONALE(e=7#oAee action

3S< v. 6itonio ( ,7; SCRA 7;2 *7:::Self-organi$ation is a fundamental right guaranteed by the .hilippine Constitution and the Labor Code. Employees have the right to form, 0oin or assist labor organi$ations for the purpose of collective bargaining or for their mutual aid and protection. 3hether employed for a definite period or not, any employee shall be considered as such, beginning in his first day of service, for purposes of membership in a labor union. Corollary to this right is the prerogative not to 0oin, affiliate with or assist a labor union. #herefore, to become a labor union member, an employee must, as a rule, not only signify the intent to become one, but also ta'e some positive steps to reali$e that intent. #he procedure for union membership is usually embodied in the unions constitution and bylaws. An employee who becomes a union member ac(uires the rights and the concomitant obligations that go with this new status and become bound by the unions rules and regulations. Juat v. CIR ( 72 SCRA ,:7 *7:+2A closed shop agreement has been considered as one form of union security whereby only union members can be hired A5) wor'ers must remain union members as a condition of continued employment. "A#&*5ALE CL*SE) S9*.8 #he re(uirement for employees or wor'ers to become members of a union as a condition for employment redounds to the benefit and advantage of said employees because by holding out to loyal members a promise of employment in the closed-shop the union wields group solidarity. &n fact it is said that the closed-shop contract is the most pri$ed achievement of unionism. <o '!o is Closed>s!op proviso o# a C6A appli able) Closed-shop proviso of a collective bargaining agreement entered into between an employer and a duly authori$ed labor union is applicable not only to the employer and a duly authori$ed labor union is applicable 5*# *5LH to the @7B employees or laborers that are employed A2#E" the collective bargaining agreement was entered into. /4# ALS* to @6B old employees who A"E 5*# members of any labor union at the time the said collective bargaining agreement was entered into. &n other words, if an employee or laborer is already a member of a labor union different from the union that entered into a collective bargaining agreement with the employer providing for a closed-shop, said employee or wor'er cannot be obliged to become a member of that union which had entered into a C/A with the employer as a condition for his continued employment. Bui=arno v. CIR ( 22 SCRA ,81 *7:1,ENERALLY: a state may 5*# compel ordinary voluntary associations to admit thereto any given individual, because membership therein may be accorded or withheld as a matter of privilege. E-CEPTION: #he rule is (ualified in respect of labor unions holding a monopoly in the supply of labor, either in a given locality, or as regards a particular employer with which it has a closed-shop agreement. Conse(uently, it is well settled that such unions are 5*# entitled to arbitrarily e%clude (ualified applicants for membership, and a closed-shop provision would not 0ustify the employer in discharging, or a union in insisting upon the discharge of, an employee whom he union thus refuses to admit to membership, without any reasonable ground thereof.

#o further increase the effectiveness of labor organi$ations, a closed-shop has been allowed.

<.C .ALIDITY OF A REEMENT AND EFFECT ON FREEDOM OF C'OICE A union security provision is not a restriction of the right of freedom of association guaranteed by the Constitution. *Hillar vs. In iong valid e%ercise of police power Q a CL*SE) S9*. provision in a C/A should not be applied retroactively Hillar v. In iong ( 727 SCRA 999 *7:;,A closed-shop is a valid form of union security, and a provision thereof in a collective bargaining agreement is not a restriction of the right of freedom of association guaranteed by the Constitution. 3here in a closed-shop agreement it is stipulated that union members who cease to be in good standing shall immediately be dismissed, such dismissal does not constitute an unfair labor practice e%clusively cogni$able by the C&". Mala"ang Sama!an v. Ramos ( ,2+ SCRA 92; *2888#he reason behind the enforcement of union security clauses which is the sanctity and inviolability of contracts cannot override ones right to due process. <.I CONTRACT DRAFTIN

AND INTERPRETATION OF PRO.ISIONS 6 UNION

SECURITY
B. # ><# provides : ,he union shall have the e+clusive ri!ht and privile!e to supply the company with laborers and the company a!rees to hire only such persons who are members of the union. If the union member is e+pelled0 is the company obli!ed to terminate the (()s employment? No. #he stipulation does not establish a closed-shop agreement 8 )ismissal pursuant to a closed-shop clause must clearly appear in the C/A. *Con#ederated Sons o# Labor vs. Ana/an2. # ><# provides : ,he (2 a!rees to employ only members in !ood standin! of the union. ,he (20 however0 reserves its ri!hts to accept or re/ect (()s where they fail to meet its re6uirements. ,he (2 a!rees not to employ any new (( unless he is a member of !ood standin! of the union provided such new (( meets the 6ualifications re6uired by the (2. Is the (2 obli!ed to terminate an e+pelled member of the union? No. #he contract does not clearly prescribe the period within which the EE must remain a member of good standing of the union. And it is not clear that membership in the union is a condition for continuation or retention of employment. Stipulations of this nature are strictly construedG doubts are resolved against the e%istence of the right to dismiss. Rizal Labor 3nion v. Rizal Cement Co. &n order for an employer to be bound under a union security clause in the C/A, to dismiss an employee for lac' of or loss of union membership, the stipulation must be so clear and une(uivocal as to leave absolutely no room for doubt. ,here must be a provision that union members must be in !ood standin! to *eep their /ob.

<.D CLOSED S'OP A REEMENT 1. ?3en i+ a c#o+ed +3o7 7ro$i+ion not a77#ica%#eF

All EEs in the bargaining unit covered by a closed shop agreement are sub0ect to its terms, ex ept8

a. Any EE who at the time the closed shop agreement ta'es effect is a bona fide
member of a religious organi$ation which prohibits its members from 0oining labor unions on religious grounds *Hi toriano vs. Elizalde Rope &or/ers 3nion-

b. EEs already in the service and already members of a labor union or unions other
than the ma0ority union at the time the closed shop agreement too' effect. *Sta. Ce ilia Sa'mills vs. CIR-

c. Supervisors ineligible to 0oin the ma0ority union because of the membership


therein of EEs under their supervision. *6ISCOM vs. %AFL3-

d. EEs e%cluded from the closed shop by e%press terms of the agreement. #hese
e%clusions applies to other types of union security arrangements, such as the agency shop. *0ational 6re'er" and Allied Industries Labor 3nion vs. SMC2. K union has a ><# with @. >o. which provides ,he >ompany underta*es not to employ anyone who is not a member of the 4nion and to dismiss from employment any (( who resi!ns or is e+pelled from the 4nion. G0 an ((0 resi!ns from the union. <y reason of the a!reement0 he is dismissed. Is the dismissal valid? Ye+. 9is dismissal was effected pursuant to the closed shop provision of the C/A. #he validity of such provision is recogni$ed. *Just vs. CIR5. 4nion # wins over 4nion < in a certification election0 then enters into a ><# with the (2. ,he ><# contained a closed shop provision. Is the (2 obli!ed to dismiss the members of union? No. #he closed shop agreement cannot be enforced against EEs who are already members of another union at the time of the signing of the C/A. #o compel the members of a minority union to disaffiliate from their union and 0oin the ma0ority or contracting union would render nugatory the right of the EEs to self-organi$ation. *Freeman S!irt vs. CIR$. ,he <a!on! <uhay 4nion had with the #rte+ 8evelopment a ><# with a closed shop stipulation. 5 of its members affiliated themselves with another union. When bein! dismissed0 they claimed they were unaware of the contents of the ><#. Is the contention tenable? No. 5either their ignorance, nor their dissatisfaction with the C/A would 0ustify breach thereof or the formation by them of a union of their own. A union member who is employed under an agreement between the union and his E" is bound by the provisions thereof. *Manalang vs. Artex 4evelopment A closed shop provision in a C/A should not be applied retroactivity

<.> MAINTENANCE OF MEMBERS'IP


B. # ><# provides : <oth parties a!ree that all (()s of the company who are already members of the union at the time of the si!nin! of this a!reement shall continue to remain members of the union for the duration of the a!reement. 5 members of the union resi!ned to /oin a new union. ,hey were dismissed. Is their dismissal le!al? No. #he contractual provision relied upon does not e%pressly provide that membership in the union is a condition for continued employment in order that an E" may be bound to dismiss EEs who does not maintain their membership in the union is a condition for continued employment. &n order that an E" may be bound to dismiss EEs who do not maintain their membership in the union, the stipulation to this effect must be so clear as to leave no room for doubt. An underta'ing of this nature is so harsh that it must be strictly construed and doubts must be resolved against the e%istence of the right to dismiss. *Manila Cordage vs. CIR-

2. #bout L months after the e+ecution of a ><#0 some union members /oined another union and even filed a petition for certification election. #s the ><# contained a maintenance of membership clause the bar!ainin! a!ent sou!ht the dismissal of the (()s. Is this valid? Ye+. #he union members committed acts of disloyalty. 3hen members see' the destruction of the organi$ation to which they belong, they forfeit their right to remain as members. *<andua" 4istiller" 3nion vs. 0LRC5. 8oes the e+piration of the ><# preclude the dismissal of the !uilty unionmembers? No. #he e%piration of the C/A did not cleanse from them from the acts of disloyalty. #hey committed such acts while the C/A was in force. @&d.B $. If the act of disloyalty was committed durin! the freedom period 0 could the union security clause still be enforced? No. #he re(uirement for union members to maintain their membership is good standing ceases to be binding during the D,-day freedom period immediately preceding the e%piration of the C/A. @&d.B %. K union has a ><# with @ >o.0 containin! a maintenance of membership clause. 8ue to the refusal of G to /oin it0 K demanded the dismissal of G pursuant to the clause. Is this valid? No. #he maintenance of membership clause only applies to EEs who are members of the contracting union at the time of the e%ecution of the C/A and to those who may thereafter on their own volition 0oin the union. *Al antara-

Although union security clauses are valid and enforceable, this does not erode the
fundamental re(uirement of )4E ."*CESS <.< FINANCIAL SECURITY 6 A ENCY S'OP Art. 21* : EEs of an appropriate collective bargaining unit who are not members of the recogni$ed collective bargaining agent may be assessed a reasonable fee e(uivalent to the dues and other fees paid by members of the recogni$ed collective bargaining agent, if such non-union members accept the benefits under the C/A. #he individual authori$ation re(uired under Art. 6C6 of this Code shall not apply to the nonmembers of the recogni$ed collective bargaining agent. C'EC9(OFF: Art. 11" %: 5o employer, in his own behalf or in behalf of any person, shall ma'e any deduction from the wages of his employees e%cept8 for union dues, in cases where the right of the wor'er of his union to chec'-off has been recogni$ed by the employer OR authori$ed in writing by the individual wor'er concerned. Art. 211 =)n)o: =. #he boo's of accounts and other records of the financial activities of any labor org shall be open to inspection -by any officer or member thereof -d8rin& o44ice 3o8r+G n. 5o special assessment or other e%traordinary fees may be levied upon the members of a labor org8 -unless authori$ed by a written resolution -of a ma0ority of all the members of a general membership meeting -duly called for the purpose. -#he secretary of the org shall record8 -the minutes of the meeting -including the list of all members present, -he votes cast, -the purpose of the special assessment or fees and -the recipient of such assessments or fees.

--

#he record shall be atte+ted to by the president. @5o need to be under oathB

o. *ther than for mandatory activities under the Code, no special assessments, atty.s fees, negotiation fees or anA ot3er eLtraordinarA 4ee+ may be chec'ed off from any amount due to an employee -without an individual written authori$ation duly signed by the Ee. -#he authori$ation should specifically state -the amount, -purpose and -beneficiary of the deductionG A6S>C60 S3%ERHISORS EM%LOFEES 30IO0 H. A6S>C60 ( 7::: A chec'-off is a process or device whereby the employer, on agreement with the 4nion, recogni$ed as the proper bargaining representative, *" on ."&*" authori$ation from its employees, deduct 8nion d8e+ or a&encA 4ee+ from the latters wages and remit them directly to the union. &ts desirability in a labor organi$ation is (uite evident. &t is assured thereby of C*5#&5*4S 245)&5:. As this Court has ac'nowledged, the system of chec'-off is primarily for the benefit of the 4nion and only indirectly, for the individual employees. the legal basis of chec'-off is found in statutes or in contracts. #he statutory limitation on chec'offs are found in Article 6C7 g 8 5o officer, agent, or member of a labor organi$ation shall collect any fees, dues, or other contributions in its behalf or ma'e any disbursement of its money or funds unless he is duly authori$ed pursuant to its constitution and by-laws. etc. See also 6C7 m,n,o. FROM PROFESSOR2S LECTURE re6uisites so that special assessment for union)s incidental e+penses be valid Article 6C7 spea's of three @+B re(uisites that must be complied with in order that the special assessment for 4nions incidental e%penses, attorneys fees and representation e%penses be valid and upheld8 7. authori$ation by a written of the ma0ority of all the members at the general meeting for that purpose. 6. secretarys record of the meeting. +. &ndividual written authori$ation for chec'-off. 0ational 6re'er" and Allied Industries Labor 3nion v. SMC ( ; SCRA ;82 *7:+,#his case 0ustifies the practice of charging A:E5CH 2EE to 5*5-45&*5 1E1E/E"S who benefit from the C/A negotiated by the representative union. &t is true, as the union claims, that whatever benefits the ma0ority union obtains from the employer accrue to its members as well as to non-members. /ut this alone does not 0ustify the collection of agency fee from non-members. 2or the benefits of a collective bargaining agreement are e%tended to all employees regardless of their membership in the union because to withhold the same from the non- members would be to discriminate against them. (International .il Aactory Wor*ers 4nion (AAW) v. ;artine'0 et al.0 :.2. -o. ?&B%%EC0 8ec. 5B0 BNEC). 1oreover, when a union bids to be the bargaining agent, it voluntarily assumes the responsibility of representing a## t3e e=7#oAee+ in the appropriate bargaining unit. #hat is why Section 76 of the law states that E#he labor organi$ation designated or selected for the purpose of collective bargaining by the ma0ority of the employees in an appropriate collective bargaining unit shall be the e%clusive representative of all the employees in such unit for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment.E

#he unionFs contention that non-members are Efree ridersE who should be made to pay for benefits received by them is answered in the concurring opinion of 1r. =en'in in the :eneral 1otors case, supra at CA<, thus8 E#his statement of the limits to permissible encouragement of union membership restricts unions, in contractually guaranteeing their own financial security against Ffree riders,F to agreements of the type contemplated by Congress, i.e., Fpermitted union shopF or Fmaintenance of membership contract,F both being agreements e%plicitly Fre(uiring membership.F E And now 3e come to the ne%t point raised by the union, namely, that non-members should be made to pay on the principle of (uasi contract. #he union invo'es Article 67C6 of the Civil Code which provides that O R>ertain lawful0 voluntary and unilateral acts !ive rise to the /uridical relation of 6uasi& contract to the end that no one shall be un/ustly enriched or benefited at the e+pense of another.R @&talics oursB /ut the benefits that accrue to non-members by reason of a collective bargaining agreement can hardly be termed Eun0ust enrichmentE because, as already pointed out, the same are e%tended to them precisely to avoid discrimination among employees. (International .il Aactory Wor*er3s 4nion (AAW) v. ;artine'0 et al.0 :.2. -o. ?&B%%EC0 8ec. 5B0 BNEC). /esides, as the trial court held, there is no allegation in the complaint that the amount of .C.,, represents the e%pense incurred by the union in representing each employee. 2or the benefits e%tended to non-members are merely incidental. RATIONALE o4 a&encA 4ee: Lastly, it is contended that the collection of agen " #ee may be 0ustified on the principle of agency. &n answer to this point, it may be stated that when a union acts as the bargaining agent, it assumes the responsibility imposed upon it by law to represent not only its members but all employees in the appropriate bargaining unit of which it is the agent. #he Civil Code states that a&encA i+ 7re+8=ed to %e 4or co=7en+ation unless there is proof to the contrary. @Art. 7<>IB. #here can be no better proof that the agency created by law between the bargaining representative and the employees in the unit is without compensation than the fact that these employees in the minority voted against the appellant union. ABE0CF FEE no' !as a statutor" basis Art. 21* e 2nd 7ara&ra73: Temployees of an appropriate bargaining unit who are not members of the recogni$ed collective bargaining agent mat be assessed a reasonable fee e(uivalent to the dues and other fees paid by members of a recogni$ed collective bargaining agent, if such non-union member accepts the benefit under the C/AT <a/e note$ &n the case of agency fee, individual authori$ation not applied, or not re(uired. #his is for practical reasons, because the law recogni$es the e%treme difficulty of imposing agency fee on non-union members, more especially to members of rival unions. AL A==en Tran+ $ Bico# Tran+7ortation E=7#oAee+ M8t8a# A++ociation ) C1 P3i# <1C >hec*&off may be enforced: 7B with the consent of the employer or 6B by authority in writing by the employees. 3hen the union and the employer agree, the attitude of the employees is immaterial. 3hen the employees duly authori$e the chec'-off, as provided by the last clause, the employerFs consent is unnecessary and its recognition of the right is obligatory.

&f this were not so, if in any case the employerFs conformity were essential, it would have to be concluded that the second clause is superfluous and meaningless, for the first clause already provides for such conformity as a condition precedent. *n the economic and practical side, petitioner complains that the practice imposes an e%tra burden on the employer. #his alone is no reason for opposing the arrangement. 3age increases, reduction of wor'ing hours, sic' leave, hospitali$ation and other privileges granted to the employed entail diminution of profits and additional duties and obligations to an e%tent much greater than the inconvenience and additional e%pense involved in the adoption of the chec'-off system. &n fact, the circumstances of this case ma'e said adoption more compelling than in ordinary cases. #he petitioner is operating in four provinces comprising nearly the whole /icol region. #he employees, the ma0ority of whom are affiliates of the respondent labor union, are scattered in these provinces. &t is not difficult to see how much easier and less e%pensive it is for the company to handle the collection of membership dues than it would be for individual members to ma'e remittances to their unionFs office, or for the union to send out collectors in so wide a territory. #he e%tra wor' and e%pense incurred by the company in deducting from its employeesF salaries the amounts the employees owe their union are small in comparison with the savings in time and money by the union and the employees, savings which can not fail to effect increased efficiency and redound to the benefit of the employer itself in the long run. &n the ad0ustment of industrial conflicts concessions have to be made and some rights to be surrendered, or enforced if necessary in the interest of conciliation and peace. #he system of chec'-off is avowedly primarily for the benefit of the union and only indirectly of the individual laborers. 9owever, the welfare of the laborers depends directly upon the preservation and welfare of the union. &t is the union which is the recogni$ed instrumentality and mouthpiece of the laborers. *nly through the union can the laborers e%ercise the right of collective bargaining and en0oy other privileges. 3ithout the union laborers are impotent to protect themselves against Ethe reaction of conflicting economic changesE and maintain and improve their lot. #o protect the interests of the union ought therefore to be the concern of arbitration as much as to help the individual laborers. <.A LIABILITIES OF UNION AND ER LIABILITY OF UNION TO PAY ?A ES AND FRIN E BENEFITS OF ILLE ALLY DISMISSED EE 3here the E" compelled the EE to go on forced leave upon recommendation of the union for alleged violation of the EE of the closed shop agreement, the union is the party liable to pay the wages and fringe benefits which the EE failed to receive. #he E" would not have compelled the EE were it not for the unions insistence. *Manila Mandarin EE5s 3nion vs. 0LRCER IN OOD FAIT' NOT LIABLE

3here the E" dismissed his EEs in the belief in good faith that such dismissal was re(uired by the closed shop provisions of the C/A with the union, he may not be ordered to pay bac' compensation to such EEs although their dismissal is illegal. *0L3 vs. Nip Henetian 6lindQ although union security clauses are valid and enforceable, this does not erode the fundamental re(uirements of due process

IMPLEMENTATION 6 OBLI ATION AND LIABILITIES Bui=arno v. CIR 4nion pays bac' wages for illegally dismissed employees due to its insistence.

Libert" Cotton Mills &or/ers 3nion v. Libert" Cotton Mills ( 7:1: Considering, however, that their dismissal was effected without previous hearing, and at the instance of .A2L4, this mother federation should be, as it is hereby, held liable to the petitioners for the payment of their bac' wages. <andua" v. 0LRC 4nion members cannot escape C/A they approved. Carino v. 0LRC ( 7::8 #urning now to the involvement of the Company in the dismissal of petitioner Cari`o, we note that the Company upon being formally advised in writing of the e%pulsion of petitioner Cari`o from the 4nion, in turn simply issued a termination letter to Cari`o, the termination being made effective the very ne%t day. 3e believe that the Company should have given petitioner Cari`o an opportunity to e%plain his side of the controversy with the 4nion. 5otwithstanding the 4nionFs Security Clause in the C/A, the Company should have reasonably satisfied itself by its own in(uiry that the 4nion had not been merely acting arbitrarily and capriciously in impeaching and e%pelling petitioner Cari`o. &n Liberty Cotton 1ills 3or'erFs 4nion, et al v. Liberty Cotton 1ills, et al. the Court held respondent company to have acted in bad faith in dismissing the petitioner wor'ers without giving them an opportunity to present their side in their controversy with their own union. E%%% %%% %%% &t is *4" considered view that respondent company is e(ually liable for the payment of bac'wages for having acted in bad faith in effecting the dismissal of the individual petitioners. /ad faith on the part of respondent company may be gleaned from the fact that the petitioner wor'ers were dismissed hastily and summarily. At best, it was guilty of a tortious act, for which it must assume solidary liability, since it apparently chose to summarily dismiss the wor'ers at the unionFs instance secure in the unionFs contractual underta'ing that the union would hold it Efree from any liabilityE arising from such dismissal. %%% %%% %%% 3hile respondent company, under the 1aintenance of 1embership provision of the Collective /argaining Agreement, is bound to dismiss any employee e%pelled by .A2L4 for disloyalty, upon its written re(uest, this underta'ing should not be done hastily and summarily. #he company acted in bad faith in dismissing petitioner wor'ers without giving them the benefit of a hearing. &t did not even bother to in(uire from the wor'ers concerned and from .A2L4 itself about the cause of the e%pulsion of the petitioner wor'ers. &nstead, the company immediately dismissed the wor'ers on 1ay 6A, 7AD O in a span of only one day O stating that it had no alternative but to comply with its obligation under the Security Agreement in the Collective /argaining Agreement, thereby disregarding the right of the wor'ers to due process, selforgani$ation and security of tenure. %%% %%% %%% #he power to dismiss is a normal prerogative of the employer. 9owever, this is not without limitations. #he employer is bound to e%ercise caution in terminating the services of his employees especially so when it is made upon the re(uest of a labor union pursuant to the Collective /argaining Agreement, as in the instant case. )ismissals must not be arbitrary and capricious. )ue process must be observed in dismissing an employee because it affects not only his position but also his means of livelihood. Employers should therefore respect and protect the rights of their employees, which include the right to labor. . . . %%% %%% %%%E &n 1anila Cordage Company v. Court of &ndustrial "elations, et al., 7, the Court stressed the re(uirement of good faith on the part of the company in dismissing the complainant and in effect held that precipitate action in dismissing the complainant is indication of lac' of good faith. %%% %%% %%% #he contention of the petitioners that they acted in good faith in dismissing the complainants and, therefore, should not be held liable to pay their bac' wages has no merit. #he dismissal of

the complainants by the petitioners was precipitate and done with undue haste. Considering that the so-called Fmaintainance of membershipF clause did not clearly give the petitioners the right to dismiss the complainants if said complainants did not maintain their membership in the 1anco Labor 4nion, the petitioners should have raised the issue before the Court of &ndustrial "elations in a petition for permission to dismiss the complainants. %%% %%% %%%E 3e conclude that the Company had failed to accord to petitioner Cari`o the latterFs right to procedural due process. #he right of an employee to be informed of the charges against him and to reasonable opportunity to present his side in a controversy with either the Company or his own 4nion, is not wiped away by a 4nion Security Clause or a 4nion Shop Clause in a C/A. An employee is entitled to be protected not only from a company which disregards his rights but also from his own 4nion the leadership of which could yield to the temptation of swift and arbitrary e%pulsion from membership and hence dismissal from his 0ob.

Section C : UNION CONCERTED ACTI.ITIES


A.7 BASIS OF RI 'T TO EN A E IN CONCERTED ACTI.ITIES 7. CONSTITUTION ! Artic#e -III) Sec ": LABOR. #he State shall afford full protection to labor, local and overseas, organi$ed and unorgani$ed, and promote full employment and e(uality of employment opportunities for all. &t shall guarantee the rights of all wor'ers to self-organi$ation, collective bargaining and negotiations, and peaceful concerted activities, including the right to stri'e &5 ACC*")A5CE 3&#9 LA3. #hey shall be entitled to security of tenure, humane conditions of wor', and a living wage. #hey shall also participate in policy and decision-ma'ing processes affecting their rights and benefits as may be provided by law. #he State shall promote the principle of shared responsibility between wor'ers and employers and the preferential use of voluntary modes in settling disputes including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. #he State shall regulate the relations between wor'ers and employers, recogni$ing the right of labor to its 0ust share in the fruits of production and the right of enterprises to reasonable returns on investments, and to e%pansion and growth. <A.E 0O<E8 #he bo%ed portion above states the PURPOSE and MEANS te+t which is the test for the legality of the stri'e. PURPOSE: Aor purpose of enforcin! ri!ht to 7B self-organi$ation @stri'es against 4L.B and 6B collective bargaining and negotiations @economic stri'es based on bargaining deadloc'B MEANS: .eaceful and in accordance with the law

2.

STATUTORY 6 Art. 2<" /%0

3or'ers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection. #he right of legitimate labor organi$ations to stri'e and pic'et and of employers to loc'out, C*5S&S#E5# 3&#9 #9E 5A#&*5AL &5#E"ES#, shall continue to be recogni$ed and respected.

9owever, no labor union may stri'e and no employer may declare a loc'out on grounds involving inter-union and intra-union disputes. <A.E 0O<E$ *bservation8 ,he ri!ht to stri*e is constitutionally !uaranteed and also statutorily !uaranteed0 while the ri!ht to loc*&out is only statutorily !uaranteed. (ven under the ?abor >ode0 the 7urpose and ;eans ,est is also enunciated: PURPOSE: Collective bargaining or @for their mutual aid and protectionB MEANS: Consistent with the 5ational &nterest. LIMI<A<IO0S$ #he Constitution and the Labor Code grudgingly grants the right to stri'e or loc'-out because among all the rights granted to the wor'ers, the law sets limitations for the e%ercise of the right. &t is the most regulated activity. Limitation b" t!e Constitution8 Limitation set b" t!e Labor Code8 @read in relation to Art. 6D+ gB I=7#ication o4 t3e Li=itation: #he 0oint coordinated activities may be forbidden or restricted by law or by contract. @&law at /u'lod v. 5L"CB Should be e%ercised &5 ACC*")A5CE 3&#9 LA3. Should be e%ercised 5A#&*5AL &5#E"ES#. C*5S&S#E5# 3&#9 #9E

Iere is an example o# a ase '!erein a stri/e is limited or #orbidden b" a provision o# la'. <!is ase involves a ase o# 'age distortion. Ila' at 6u/lod v 0LRC ( 7:; SCRA 2;+ *7::7Among the rights guaranteed to employees by the Labor Code is that of engaging in concerted activities in order to attain their legitimate ob0ectives. Article 6D+ of the Labor Code, as amended, declares that in line with Ethe policy of the State to encourage 4ree trade 8nioni+= and 4ree co##ecti$e %ar&ainin&, T wor'ers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection.E A similar right to engage in concerted activities for mutual benefit and protection is tacitly and traditionally recogni$ed in respect of employers. ,he more common of these concerted activities as far as employees are concerned are: aB +tri;e+ O the temporary stoppage of wor' as a result of an industrial or labor disputeG

bB 7ic;etin& O the marching to and from at the employerFs premises, usually accompanied by the display of placards and other signs ma'ing 'nown the facts involved in a labor disputeG and cB %oAcott+ O the concerted refusal to patroni$e an employerFs goods or services and to persuade others to a li'e refusal. *n the other hand, the counterpart activity that management may licitly underta'e is the #oc;o8t O the temporary refusal to furnish wor' on account of a labor dispute. &n this connection, the same Article 6D+ provides that the Eright of legitimate labor organi$ations to stri'e and pic'et and of employer to loc'out, con+i+tent >it3 t3e nationa# intere+t, shall continue to be recogni$ed and respected.E Te+t o4 #e&a#itA ,he le!ality of these activities is usually dependent on: 7B the legality of the purposes sought to be attained and 6B the means employed therefor.

&t goes without saying that these 0oint or coordinated activities =aA %e 4or%idden or re+tricted %A #a> or contract. Re+tricted %A #a>: &n the particular instance of Edistortions of the wage structure within an establishmentE resulting from Ethe application of any prescribed wage increase by virtue of a law or wage order,E Section + of "epublic Act 5o. D>6> prescribes a specific0 detailed and comprehensive procedure for the correction thereof, thereby implicitly e%cluding stri'es or loc'outs or other concerted activities as modes of settlement of the issue. #he legislative intent that solution of the problem of wage distortions shall be sought by voluntary negotiation or arbitration, and not by stri'es, loc'outs, or other concerted activities of the employees or management, is made clear in the rules implementing "A D>6> issued by the Secretary of Labor and Employment pursuant to the authority granted by Section 7+ of the Act. Section 7D, Chapter & of these implementing rules, after reiterating the policy that wage distortions be first settled voluntarily by the parties and eventually by compulsory arbitration, declares that, R#ny issue involvin! wa!e distortion shall not be a !round for a stri*eDloc*out.R Re+tricted %A contract: 1oreover, the collective bar!ainin! a!reement between the S1C and the 4nion, relevant provisions of which are (uoted by the former without the latter s demurring to the accuracy of the (uotation, also prescribes a similar eschewal of stri'es or other similar or related concerted activities as a mode of resolving disputes or controversies, generally, said agreement clearly stating that settlement of Eall disputes, disagreements or controversies of any 'indE should be achieved by the stipulated grievance procedure and ultimately by arbitration. #he provisions are as follows8 ,he 4nion was thus prohibited to declare and hold a stri*e or otherwise en!a!e in non&peaceful concerted activities for the settlement of its controversy with S;> in respect of wa!e distortions0 or for that matterQ any other issue Rinvolvin! or relatin! to wa!es0 hours of wor*0 conditions of employment andDor employer&employee relations.R #he partial stri'e or concerted refusal by the 4nion members to follow the five-year-old wor' schedule which they had therefore been observing, resorted to as a means of coercing correction of Ewage distortions,E was therefore forbidden by law and contract and, on this account, illegal. 6L< 6us Co. v. 0LRC 9EL)8 #he right to stri'e is one of the rights recogni$ed and guaranteed by the constitution as an instrument of labor for its protection against e%ploitation by management. /y virtue of this right, the wor'ers are able to press their demands for better terms of employment with more energy and persuasiveness, posing the threat to stri'e as their reaction to the employerFs intransigence. 'i+torA o4 Concerted Acti$itie+ 6isig ng Manggaga'a v. 0LRC Stri'e has been considered the most effective weapon of labor in protecting the rights of employees to improve the terms and conditions of their employment. &t may be that in highly developed countries, the significance of stri'e as a coercive weapon has shrun' in view of the preference for more peaceful modes of settling labor disputes. &n underdeveloped countries, however, where the economic crunch continues to enfeeble the already marginali$ed wor'ing class, the importance of the right to stri'e remains undiminished as indeed it has proved many a time as the only coercive weapon that can correct abuses against labor. &t remains as the great e(uali$er.

&n the .hilippine milieu where social 0ustice remains more as a rhetoric than a reality, labor has vigilantly fought to safeguard the sanctity of the right to stri'e. &ts struggle to gain the right to stri'e has not been easy and effortless. LaborFs early e%ercise of the right to stri'e collided with the laws on rebellion and sedition and sent its leaders languishing in prisons. #he spectre of incarceration did not spur its leaders to slothG on the contrary it spi'ed labor to wor' for its legitimi$ation. #his effort was enhanced by the flowering of liberal ideas in the 4nited States which inevitably crossed our shores. &t was enormously boosted by the American occupation of our country. 9ence, on =une 7>, 7AI+, Congress gave statutory recognition to the right to stri'e when it enacted "A <>I, otherwise 'nown as the &ndustrial .eace Act. 2or nearly two @6B decades, labor en0oyed the right to stri'e until it was prohibited on September 76, 7A>6 upon the declaration of martial law in the country. #he 7C-year battle to end martial rule produced many martyrs and foremost among them were the radicals of the labor movement. &t was not a mere happenstance, therefore, that after the final battle against martial rule was fought at E)SA in 7A<D, the new government treated labor with a favored eye. Among those chosen by then .resident Cora$on C. A(uino to draft the 7A<> Constitution were recogni$ed labor leaders li'e Eulogio Lerum, =ose ). Calderon, /las ). *ple and =aime S.L. #adeo. #hese delegates helped craft into the 7A<> Constitution its Article S&&& entitled Social =ustice and 9uman "ights. 2or the first time in our constitutional history, the fundamental law of our land mandated the State to E.. guarantee the rights of all wor'ers to self-organi$ation, collective bargaining and negotiations, and peaceful concerted activities, including the right to stri'e in accordance with law.E #his constitutional imprimatur given to the right to stri'e constitutes signal victory for labor. *ur Constitutions of 7A+I and 7A>+ did not accord constitutional status to the right to stri'e. Even the liberal 4S 2ederal Constitution did not elevate the right to stri'e to a constitutional level. 3ith a constitutional matri%, enactment of a law implementing the right to stri'e was an inevitability. "A D>7I came into being on 1arch 67, 7A<A, an intentional replication of "A <>I. &n light of the genesis of the right to stri'e, it ought to be obvious that the right should be read with a libertarian latitude in favor of labor. &n the wise words of 2ather =oa(uin :. /ernas, S.=., a distinguished commissioner of the 7A<> Constitutional Commission E. . . the constitutional recognition of the right to stri'e does serve as a reminder that in0unctions, should be reduced to the barest minimumE. 6L< 6us Co. v. 0LRC 9EL)8 #he stri'e is indeed a powerful weapon of the wor'ing class. /ut precisely because of this, it must be handled carefully, li'e a sensitive e%plosive, lest it blow up in the wor'ersF own hands. #hus, it must be declared only after the most thoughtful consultation among them, conducted in the only way allowed, that is, peacefully, and in every case conformably to reasonable regulation. Any violation of the legal re(uirements and strictures, such as a defiance of a return-to-wor' order in industries affected with public interest, will render the stri'e illegal, to the detriment of the very wor'ers it is supposed to protect. Even war must be lawfully waged. A labor dispute demands no less observance of the rules, for the benefit of all concerned. POLICY STATEMENT &n line with the policy of the State to encourage free trade unionism and free collective bargaining, wor'ers shall have the right to engage in concerted activities for purposes of collective bargaining or for mutual benefit and protection. A similar right to engage in concerted activities for mutual benefit and protection is tacitly and traditionally recogni$ed in respect of E"s. *Ila' at 6u/lod ng Manggaga'a vs. 0LRCA.6 STRI9E ACTI.ITY

1. De4ine a +tri;e. &t is a temporary stoppage of wor' by the concerted action of EEs as a
result of an industrial or labor dispute. @Art. 212B A valid stri'e needs a labor dispute. *Azu ena-

Labor dispute ! Any controversy or matter concerning terms and conditions of employment or the association of representation of persons in negotiation, fi%ing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether or not the disputants stand in the pro%imate relations of E"s and EEs. @Art. 212B IMPLICATION: An inter-union and intra-union cannot be a valid ground for a stri'e or loc'-out. Since a Labor dispute is technically defined under art. 676 Y Absent a labor dispute there can be no concerted activities under the labor code. Ta;e note: wel!a n! bayan @political stri'eB is not a valid stri'e under the labor code since no labor dispute is involved. A labor dispute is technically defined as to include controversies or matters relating to terms and conditions of employment or representation issues. A welga ng bayan for purpose of lowering oil price is not a valid stri'e under the labor code. @but may be upheld as a valid e%ercise of speech, although employee may still suffer conse(uence of abandonment of wor'.B E%ceptional case8 .hil /looming 1ills case, not right to stri'e but freedom of e%pression. 3age distortion issues are not also valid ground for a stri'e since the law provides for a procedure to settle the problem. (Ilaw at <u*lod case0 see di!est in this reviewer)

A labor dispute can nevertheless e%ist regardless of whether the disputants stand in the
pro%imate relation of E" and EE provided the controversy concerns, among others, the terms and conditions of employment or a change or arrangement thereof. .ut differently, as defined by law, the e%istence of a labor dispute is not negatived by the fact that the plaintiffs and defendants do not stand in the pro%imate relations of E" and EE. *SMC emplo"ees 3nion vs. 6ersamira( 7;+ SCRA 9:+ 2. Aruit >annin! >o. has been re6uirin! wor*ers to render overtime wor* of % hours everyday for the past E months. 8ue to the refusal of the (2 to stop this practice0 all the (()s refused to wor* overtime and left the plant after wor*in! L hours durin! the day. ,hey reported for the re!ular wor* schedule the followin! mornin!. Is this a stri*e? Ye+. &t is a temporary stoppage of wor' by the concerted action of the EEs by reason of a labor or industrial dispute. A labor dispute includes any controversy or matter concerning terms and conditions of employment. *Al antara5. ,he (()s due to a dispute involvin! wa!es wor*ed for only L hours a day instead of BC hours in accordance with a practice which had been followed for % years. Is the refusal of the wor*ers to adhere to the BC&hours wor* schedule a stri*e? Ye+. &t is a limited or partial stri'e. @&d.B

RESTRICTION ON T'E RI 'T TO STRI9E


7- &t must result from an industrial or labor dispute 6- &t must be consistent with the national interest NATURE AND PURPOSE A stri'e is coercive activity resorted to by laborers to enforce their demands. #he idea behind a stri'e is that a company engaged in a profitable business cannot afford to have its production or activities interrupted, mush less, paraly$ed. /ecause of this threat or danger of loss, the company gives in to the demand of the stri'ers, 0ust so it can maintain continuity in production. *%!ilippine Can Compan" vs. CIRTEMPORARY IN NATURE IM%LICA<IO0$ Employee-Employer relationship continues to e%ist, it is only at best suspended. 1ere participation in a stri'e in not a ground for termination.

EFFECT OF ?OR9 RELATIONS'IP EEs who go on stri'e do not (uit their employment. &t is a mere temporary stoppage of wor'. #he declaration of a stri'e does not amount to renunciation of the employment relation. #he relationship of E" and EE continues. *Rex <axi vs. CIR- )uring a stri'e, the E"-EE relationship is not terminated but merely suspended as the wor' stoppage is not permanent but only temporary. #he EEs status during a stri'e remains but the effects of employment are suspended, hence, a stri'ing EE, as a rule, is not entitled to his wage during a stri'e. *Azu enaROUNDS FOR STRI9IN A. ALLO?ABLE STRI9ES 6 Art. 2<" /c0 7In ases o# bargaining deadlo /(*ECO0OMIC S<RI.ESY the duly certified or recogni$ed bargaining agent may file a notice of stri'e or the employer may file a notice of loc'out with the )epartment at least thirty @+,B days before the intended date thereof. <A.E 0O<E$ *nly a recogni$ed bargaining agent may file a notice of stri'e regarding a bargaining deadloc'. #hus it implies that only a legitimate labor organi$ation may file such notice of stri'e. 2In ases o# un#air labor pra ti e(

Y the period of notice shall be fifteen @7IB days and in the absence of a duly certified or recogni$ed bargaining agent, the notice of stri'e may be filed by any legitimate labor organi$ation in behalf of its members. <A.E 0O<E$ &n absence of a bargaining agent, *5LH a legitimate labor organi$ation may file. 5ot 0ust any labor organi$ation. Another way the law encourages union registration. ,3nion 6usting

Y 9owever, in case of dismissal from employment of union officers d8#A e#ected in accordance with the union constitution and by-laws, which may constitute union busting where the e%istence of the union is threatened, Y the 7I-day cooling-off period shall not apply and the union may ta'e action immediately. <A.E 0O<E8 >oncept of union bustin! is a technical definition. ,he followin! must concur: 7B 6B A union officer was dismissed from employment Such union officer was duly elected I=7#ication: An appointed union officer is not contemplated by this provision. +B 9e was elected in accordance with the procedure prescribed in the Constitution and /y-laws of the 4nion. #his means that he was ?AL&)LH elected. RULES:

IMPLEMENTIN

ro8nd+ 4or +tri;e and #oc;o8t. O A stri'e or loc'out may be declared in cases of8 7B bargaining deadloc's and 6B unfair labor practices.

?iolations of collective bargaining agreement shall not be considered unfair labor practice and shall not be stri'eable. EMCE%<IO0$ e%cept flagrant andRor malicious refusals to comply with its economic provisions. #hese will be considered as a 4L. which is a ground for stri'ing. Y 5o stri'e or loc'out may be declared on ground involving inter-union ad intra-union disputes or on issues brought to voluntary or compulsory arbitration. Sec. 6 ?3o =aA dec#are a +tri;e or #oc;o8t. O Any certified or duly recogni$ed bargaining representative may declare a stri'e in cases of bargaining deadloc's and unfair labor practices. #he employer may declare a loc'out in the same cases. &n the absence of a certified or duly recogni$ed bargaining representative, any legitimate labor organi$ation in the establishment may declare a stri'e but only on grounds of unfair labor practices. /. PRO'IBITED STRI9ES 7Inter>union and intra>union disputes Y because no labor dispute is involved.

Art. 2<" /%0 : 9owever, no labor union may stri'e and no employer may declare a loc'out on grounds involving inter&union and intra&union disputes. 2In an industr" indispensable to t!e national interest( '!en alread" t!e Se . O# Labor or %resident erti#ied b"

Art. 2<" /&0 : 3hen, in his opinion, there e%ists a labor dispute causing or li'ely to cause a stri'e or loc'out in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume 0urisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically en/oinin! the intended or impendin! stri*e or loc*out as specified in the assumption or certification order. &f one has already ta'en place at the time of assumption or certification, all stri'ing or loc'ed out employees shall immediately return to wor' and the employer shall immediately resume operations and readmit all wor'ers under the same terms and conditions prevailing before the stri'e or loc'out. #he Secretary of Labor and Employment or the Commission may see' the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same.

,-

4id not bargain olle tivel"( 4id not #ile noti e o# stri/e or did not ta/e stri/e vote

Art. 2<1. Pro3i%ited acti$itie+. 6 @aB 5o labor organi$ation or employer shall declare a stri'e or loc'out without first having bargained collectively in accordance with #itle ?&& of this /oo' or without first having filed the notice re(uired in the preceding Article or without the necessary stri'e or loc'out vote first having been obtained and reported to the )epartment. 9&!en ontrovers" submitted to ompulsor" arbitration or voluntar" arbitration

Sti## 8nder Art. 2<1 Y 5o stri'e or loc'out shall be declared after assumption of 0urisdiction by the .resident or the Secretary or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the stri'e or loc'out.

2-

&!en in an improved o##er balloting( ma=orit" o# union members a improve o##er

ept t!e

Art. 2<:. I=7ro$ed o44er %a##otin&. - &n an effort to settle a stri'e, the )epartment of Labor and Employment shall conduct a referendum by secret balloting on the improved offer of the employer on or before the +,th day of the stri'e. 3hen at least a ma0ority of the union members vote to accept the improved offer, the stri'ing wor'ers shall immediately return to wor' and the employer shall thereupon readmit them upon the signing of the agreement. &n case of a loc'out, the )epartment of Labor and Employment shall also conduct a referendum by secret balloting on the reduced offer of the union on or before the +,th day of the loc'out. 3hen at least a ma0ority of the board of directors or trustees or the partners holding the controlling interest in the case of a partnership vote to accept the reduced offer, the wor'ers shall immediately return to wor' and the employer shall thereupon readmit them upon the signing of the agreement. @As amended by "A D>7IB +0o stri/e( '!en la' pres ribes a pro edure #or settling t!e dispute or '!en grievan e pro edure under C6A !as not been ex!austed "et Ila' at 6u/lod ng Manggaga'a v. 0LRC #he C/A clearly states that settlement of Eall disputes, disagreements or controversies of any 'indE should be achieved by the stipulated grievance procedure and ultimately by arbitration. #he 4nion was thus prohibited to declare and hold a stri'e or otherwise engage in non-peaceful concerted activities for the settlement of its controversy with S1C in respect of wage distortions, or for that matter, any other issue Einvolving or relating to wages, hours of wor', conditions of employment andRor employer-employee relations.E #he partial stri'e or concerted refusal by the 4nion members to follow the five-year-old wor' schedule which they had theretofore been observing, resorted to as a means of coercing correction of Ewage distortions,E was therefore forbidden by law and contract and, on this account, illegal. ,his case is sort of an e+ception to the rulin! above %!il Metal Foundries v. CIR &t is admitted by petitioner that it accepted the invitation of /aylon for a grievance conference on *ctober I, 7AD+. Het, two hours after it accepted the letter of invitation, it dismissed /aylon without prior notice andRor investigation. Such dismissal is undoubtedly an unfair labor practice committed by the company. 4nder these facts and circumstances, /aylon and the members of the 4nion had valid reasons to ignore the schedule grievance conference and declared a stri'e. 3hen the 4nion declared a stri'e in the belief that the dismissal of /aylon was due to union activities, said stri'e was not illegal. &t is not even re(uired that there be in fact an unfair labor practice committed by the employer. &t suffices, if such a belief in good faith is entertained by labor, as the inducing factor for staging a stri'e. #he stri'e declared by the 4nion in this case cannot be considered a violation of the Eno stri'eE clause of the Collective /argaining Agreement because it was due to the unfair labor practice of the employer. 1oreover, a no stri'e clause prohibition in a Collective /argaining Agreement is applicable only to economic stri'es. #he stri'e cannot be declared as illegal for lac' of notice. &n stri'es arising out of and against a companyFs unfair labor practice, a stri'e notice is not necessary in view of the stri'e being founded on urgent necessity and directed against practices condemned by public. A.OIDANCE OF STRI9ES

1. .acific measures must first be e%hausted before stri'es are to be declared. Stri'es and
other coercive means of settling the dispute are deemed 0ustified only when peaceful alternatives have proved unfruitful in settling the dispute. *%IILMAROA vs. CIR2. ,he union sent demands for the dismissal of a foreman on !rounds that he maltreated an ((. ,he company refused to dismiss the foreman but reopened his case in the fiscal)s office. <ecause of the company)s refusal0 the union went to stri*e. Is the stri*e le!al? No. #he demand for the dismissal had been accorded the attention it merited. *0L3 vs. CIR-

An agency that helps in avoiding stri'es by e%haustion of pacific remediesRmeasure is


the 5C1/

A dispute undergoing preventive mediation or arbitration cannot serve as a reason for


holding a stri'e or loc'out NO STRI9E CLAUSE IN CBA Master Iron Labor 3nion v. 0LRC #s this >ourt has held in 7hilippine ;etal Aoundries0 Inc. vs. >I2 (NC S>2# B5% OBNINP)0 a no& stri*e clause in a ><# is applicable only to economic stri'es. >orollarily0 if the stri*e is founded on an unfair labor practice of the employer0 a stri*e declared by the union cannot be considered a violation of the no&stri*e clause. I+ t3e @No +tri;e c#a8+eK a $a#id +ti78#ation in a CBAF Hes. /ut it is applicable only to economic stri'es. ?3at i+ an econo=ic +tri;eF An economic stri'e is defined as one which is to force wage or other concessions from the employer which he is not re(uired by law to grant (>onsolidated ?abor #ssociation of the 7hilippines vs. ;arsman H >o.0 Inc.0 BB S>2# %LN OBNE$P). &n this case, the stri'ing wor'ers enumerated in their notice of stri'e the following grounds8 violation of C/A or the CorporationFs practice of subcontracting wor'ersG discriminationG coercion of employeesG unreasonable suspension of union officials, and unreasonable refusal to entertain grievance. .rofessor .erfecto 2ernande$, in his boo' Law on Stri'es, .ic'eting and Loc'outs, states that an economic stri'e involves issues relating to demands for higher wages, higher pension or overtime rates, pensions, profit sharing, shorter wor'ing hours, fewer wor' days for the same pay, elimination of night wor', lower retirement age, more healthful wor'ing conditions, better health services, better sanitation and more safety appliances. ,he demands of the wor*ers0 bein! covered by the ><#0 are definitely within the power of the >orporation to !rant and therefore the stri*e was not an economic stri*e. PROTECTION OF STRI9E ?3at are t3e &enera# 7rotection+ o4 t3e ri&3t to +tri;eF ,he ri!ht to stri*e is !iven the followin! protections: 1. &t is generally not sub0ect to labor in0unctions or restraining order. @Art. 2:1B

2. EEs may not be discriminated against merely because they have e%ercised the right to
stri'e. @Art. 21*B

3. #he use of stri'e brea'ers is prohibited. @Art. 2<1B

A.+ TYPES) C'AN ES AND CON.ERSION ( STRI9ES DEFINITIONS

1. Econo=ic +tri;e ! &ntended to forge wage and other concessions from the E", which is
not re(uired by law to grant. *Consolidated Labor Asso iation vs. Marsman- Also 'nown as bargaining stri'es.

2. Un4air #a%or 7ractice +tri;e ! Called against the unfair labor practices of the E",
usually for the purpose of ma'ing him desist from further committing such practices. *Azu ena-

3. SA=7at3etic +tri;e ! *ne in which the stri'ing EEs have no demands or grievances of
their own, but stri'e for the purpose of property of directly or indirectly aiding others, without direct relation to the advancement of the interest of the stri'ers. @&d.B 1. ?3at are t3e te+t+ in deter=inin& t3e eLi+tence o4 an 8n4air #a%or 7ractice +tri;eF ,here are two tests in determinin! the e+istence of an unfair labor practice stri*e:

a. O%Qecti$e#A, when the stri'e is declared in protest of unfair labor practice which
is found to have been actually committedG

b. S8%Qecti$e#A, when a stri'e is declared in protest of what the union believed to


be unfair labor practices committed by management, and the circumstances warranted such belief in good faith although subse(uently as not committed. @&d.B &t is not re(uired that there be as such in fact unfair practice committed by the E". &t suffices if such a belief in good faith is entertained by labor as the inducing factor for staging a stri'e. *S!ell Oil &or/ers 3nion vs. S!ell?iolations of C/As e%cept flagrant andRor malicious refusal to comply with its economic provisions shall not be considered unfair labor practice and shall not be stri'eable. *Se . 7( Rule MIII( 6oo/ H( IRR5s 5o stri'e clause-5o loc'out8 ?alid applicable only to economic stri'es not 4L. stri'es C'AN E IN TYPE An economic stri'e may be converted into an unfair labor practice stri'e, as when a stri'e for greater benefits is called off in anticipation of negotiations and eventual agreement but is resumed upon the commission by the E" of acts of discrimination against the leaders of the stri'e. *Consolidated Labor Asso iation vs. MarsmanQ An economic stri'e changes in character to one of an unfair labor practice from the time a company refuses to reinstate some of its stri'ing employees because of their union activities after it had offered to readmit all the stri'ers and in fact did readmit the others @non-union stri'ersB. MaA a +tri;e %e con$erted into a #oc;(o8tF An economic stri'e changes in character to one for 4L. from the time the company refuses to reinstate some of its stri'ing employees because of their union activities after it had offered to readmit all the stri'ers and in fact did readmit the others *Consolidated Labor Asso iation v. Marsman and Co.NON(CON.ERSION 6STRI9E TO LOC9OUT

A stri'e is not converted into a loc'out by the filing of notice of offer to return to wor' during pendency of dispute. *Rizal Cement &or/ers 3nion vs. CIRSYMPAT'ETIC STRI9E /ecause a valid stri'e presupposes a labor dispute, it follows that a sympathetic stri'e is illegal. *Azu ena- e%. 3elga ng bayan Are 'or/ slo'do'ns also a #orm o# stri/e) 3or' slowdowns are an illegal stri'e. #hey are a stri'e on installment basis, were apparently a pattern of manipulating production depending on whether the unions demand were met. @.hil #hread 3or'ers 4nion v. Confessor, supraB Y Slowdown is generally condemned as inherently illicit and un0ustifiable, because while the employer continues to wor' and remain at their position and accept the wages paid to them, they at the same time select what part of their allotted tas' they want to perform to the employers damage, they wor' on their own terms. @&law at /u'lod v. 5L"C, supraB A.C LOC9OUT DEFINITION De4ine a #oc;o8t 8 Loc'out means that temporary refusal to any E" to furnish wor' as a result of an industrial or labor dispute. @Art. 212B &t is an E"s act e%cluding EEs who are union members from his business and factory premises. *Sta. Mesa Slip'a"s vs. CIR- A valid loc'out needs a labor dispute. *Azu enaNATURE AND PURPOSE Loc'out is recogni$ed as a valid weapon of management in collective bargaining. &t may be declared to bring pressure upon the union, where a impasse has arisen during bargaining negotiations or where the union commits unfair labor practices, sub0ect to statutory re(uirements. *Azu ena-

EFFECT OF ?OR9 RELATIONS'IP Stri'e and loc'out are similar in the sense that they connote temporary stoppage of wor'. #he relationship of E" and EE continues. @&d.B A.I LE ALITY OF STRI9E OR LOC9OUT ?3at are t3e < 4actor+ a44ectin& t3e #e&a#itA o4 +tri;e or a #oc;o8tF #n ille!al stri*e or loc*out is one which : 7. &s contrary to a specific prohibition of lawG 6. ?iolates a specific re(uirement of lawG +. )eclared for an unlawful purpose C. Employs unlawful meansG I. )eclared in violation of an e%isting in0unctionG 6. Contrary to an e%isting agreement *Azu enaCONTRARY TO SPECIFIC PRO'IBITION OF LA? :overnment EEs have the right to organi$e but they do not have the right to stri'e. Since the terms and conditions of government EEs are fi%ed by law, government wor'ers cannot use the same weapons employed by wor'ers in the private sector to secure concessions from their EEs. *SSEA vs. CA&!o ma" de lare a stri/e or lo /out )

Any certified or duly recogni$ed bargaining representative may declare a stri'e N the employer may declare a loc'out. Y &n the absence of a certified or duly recogni$ed bargaining representative, any legitimate labor organi$ation in the establishment may declare a stri'e /4# only on !rounds of unfair labor practices.

PROCEDURAL REGUIREMENTS
:E5E"ALLH, the following are procedural re(uirements for a stri'e. #hey have been held to be mandatory. 5ot following them has the conse(uence of declaring the stri'e an illegal one. (n#s' vs. ove=era?3at are t3e 7roced8ra# reE8i+ite+ 4or a +tri;e to enQoA t3e 7rotection o4 #a>F

1. A 5*#&CE *2 S#"&KE *" L*CK*4# with the re(uired contents, should be filed with
the )*LE, specifically the regional branch of the 5ational Conciliation and 1ediation /oard, copy furnished the E" or the union, as the case may be. @Art. 2<"B Lnotice of intentM Y .oint where cooling-off period is counted from 6. A C**L&5: !*22 .E"&*) must be observed i.e. a time gap is re(uired to cool off tempers between the filing of notice and the actual e%ecution of the stri'e or loc'outG the cooling off period is +, days in case of bargaining deadloc' and 7I days in case of unfair labor practice. 9owever, in cases of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting where the e%istence of the union is threatened, the cooling off period need not be observed. @&d.B /ut stri'e vote is still conducted and the results submitted to the 5C1/ +. )uring the cooling-off period, the 5C1/ mediates and conciliates the parties. #hey are not allowed to do any act which may disrupt or impede the early settlement of the dispute. A part of their duty to bargain, they are obliged to participate fully and promptly in the 5C1/ meetings. @&d.B C. /efore a stri'e or loc'out may actually be started, a S#"&KE ?*#E *" L*CK*4# ?*#E should be ta'en by secret balloting, with 6C-hour prior notice to the 5C1/. #he decision to declare a stri'e re(uires the secret ballot approval of the ma0ority of the total union membership in the bargaining unit concerned. Similarly, a loc'out needs the secret ballot concurrence of ma0ority of the directors or partners. @&d.B .urpose8 So that there will be no wild card stri'e. Y *bserve that not all members of an appropriate bargaining unit are to participate in a stri'e vote. *nly 45&*5 member in such appropriate bargaining unit. 5on-union members are not included in stri'e votes. ?oting base8 ma0ority of the total union membership

5. #he "ES4L# *2 #9E S#"&KE *" L*CK*4# ?*#E should be reported to the 5C1/
at least > days before the intended stri'e or loc'out, sub0ect to the cooling off period. @&d.B #his is intended to give the )*LE an opportunity to verify whether the pro0ected stri'e or loc'out really carries the imprimatur of the ma0ority of union members or board of directors, as the case may be. A stri'e or loc'out held within >-day waiting period is plainly illegal. *Lapanda" &or/ers 3nion vs. 0LRC An 5C1/ primer indicates that the >-day reporting period and the cooling off period @if re(uiredB run separately and are counted separately #he > days are in addition to the 7I or +, days cooling-off period

D. 5o stri'e or loc'out may be declared on grounds involving inter-union and intra-union disputes. @&d.B

7. 5o stri'e or loc'out shall be declared without the labor organi$ation or the E" first
having bargained collectively i.e. e%haustion of grievance procedure before declaration of stri'e. *Art. 2+9-

8. 5o stri'e or loc'out shall be declared after assumption of 0urisdiction by the .resident of


the Secretary of Labor. *Art. 2+,-

9. 5o stri'e or loc'out shall be declared after certification or submission of the dispute to


compulsory or voluntary arbitration, nor may a stri'e or loc'out be declared during the pendency of cases involving the same grounds for the stri'e or loc'out. *Azu ena-

10. 5on-observance of procedural re(uirement ma'es stri'e illegal. *0FS& vs. Ove=era *nly a LL* can legally hold a stri'e @4L. only not economic e%cept if E/AB Any certified or duly recogni$ed bargaining representative may declare a stri'e incase of bargaining deadloc's and 4L.s. #he E" may declare a loc' out in the same cases. &n the absence of a duly certified or duly recogni$ed bargaining representative, any LL* in the establishment may declare a stri'e but only on ground of 4L.. 4nder the law, the ff can declare a stri'e8 7Certified /argaining representative @#he fact that the union was certified means that it is a registered union can be certifiedB 6)uly recogni$ed bargaining representative @the union can either be registered or non-registered, as the E" may voluntarily recogni$e it despite its not being registeredB +LL* @by definition, means a registered union, but only in the absence of ;7 or ;6 and only on 4L.B ununioni$ed employees cannot hold a lawful wor' stoppage because only a union can file a notice of stri'e and only a union can ta'e a stri'e vote amoung its members and then report its result to the 5C1/. Is t!ere a ooling>o## period #or a 30IO0>63S<I0B stri/e) #he .rofessor )issini believes that the cooling-off period, as well as the seven day stri'e ban is 3A&?E) in cases of 45&*5-/4S#&5: stri'e. #he reason for this is that the law provides for the word &11E)&A#ELH . And the reason for the law providing for the word immediately &s that because the e%istence of the union is threatened by the dismissal of the union officer. &f they still wait for the seven day or fifteen day period, the union might not e%ist anymore to hold its stri'e. .rofessor A$ucena thin's otherwise. @& havent read professor A$cunea, but this is what my professor says, when it comes to labor law and our e%am, he is the boss\B .rof. A$ucena believes that even in 4nion-/usting stri'es the seven-day stri'e ban period is still observed. &mmediately is interpreted in such a way that the 7I-day cooling-off period for 4L. will be reduced to seven days. 0ational Federation o# Sugar &or/ers *0SF&- vs. Ove=era L Ma" ,7( 7:;2 O *aLanguage o# t!e la'. O #he foregoing provisions @Art. 6DC and 6DIB hardly leave any room for doubt that the cooling-off period in Art. 6DC@cB and the >-day stri'e ban after the stri'evote report prescribed in Art. 6DC@fB were meant to be, and should be deemed, =andatorA. 3hen the law says Ethe labor union may stri'eE should the dispute Eremain unsettled until the lapse of the re(uisite number of days @cooling-off periodB from the mandatory filing of the

notice,E the unmista'able implication is that the union may not stri'e before the lapse of the cooling-off period. Similarly, the mandatory character of the >-day stri'e ban after the report on the stri'e-vote is manifest in the provision that Pin ever" ase,E the union shall furnish the 1*LE with the results of the voting Eat least seven @>B days before the intended stri'e, sub0ect to the @prescribedB cooling-off period.E It must be stressed that the re6uirements of coolin!&off period and I&day stri*e ban must both be complied with0 althou!h the labor union may ta*e a stri*e vote and report the same within the statutory coolin!&off period. &f only the filing of the stri'e notice and the stri'e-vote report would be deemed mandatory, but not the waiting periods so specifically and emphatically prescribed by law, the purposes @hereafter discussedB for which the filing of the stri'e notice and stri'e-vote report is re(uired would not be achieved, as when a stri'e is declared immediately after a stri'e notice is served, or when O as in the instant case O the stri'e-vote report is filed with 1*LE after the stri'e had actually commenced. Such interpretation of the law ought not and cannot be countenanced. &t would indeed be selfdefeating for the law to imperatively re(uire the filing on a stri'e notice and stri'e-vote report without at the same time ma'ing the prescribed waiting periods mandatory. @bB %urposes o# stri/e noti e and stri/e>vote report. O &n re(uiring a stri'e notice and a cooling-off period, the avowed intent of the law is to provide an opportunity for mediation and conciliation. &t thus directs the 1*LE Eto e%ert all efforts at mediation and conciliation to effect a voluntary settlementE during the cooling-off period. So, too, the >-day stri'e-vote report is not without a purpose. As pointed out by the Solicitor :eneral O E1any disastrous stri'es have been staged in the past based merely on the insistence of minority groups within the union. #he submission of the report gives assurance that a stri'e vote has been ta'en and that, if the report concerning it is false, the ma0ority of the members can ta'e appropriate remedy before it is too late.E &f the purpose of the re(uired stri'e notice and stri'e-vote report is to be achieved, the periods prescribed for their attainment must, as aforesaid, be deemed mandatory. E. . . when a fair interpretation of the statute, which directs acts or proceedings to be done in a certain way, shows the legislature intended a compliance with such provision to be essential to the validity of the act or proceeding, or when some antecedent and prere(uisite conditions must e%ist prior to the e%ercise of power or must be performed before certain other powers can be e%ercised, the statute must be regarded as mandatory. So it has been held that, when a statute is founded on public policy Lsuch as the policy to encourage voluntary settlement of disputes without resorting to stri'esM, those to whom it applies should not be permitted to waive its provisions. * &aiting period a#ter stri/e noti e and stri/e>vote report( valid regulation o# rig!t to stri/e. O #o (uote =ustice =ac'son in &nternational 4nion vs. 3isconsin Employment "elations /oard, ++D 4.S. 6CI, at 6IA O E#he right to stri'e, be ause o# its more serious impa t upon t!e publi interest, is more vulnerable to regulation than the right to organi$e and select representatives for lawful purposes of collective bargaining . . .E #he cooling-off period and the >-day stri'e ban after the filing of a stri'e-vote report, as prescribed in Art. 6DC of the Labor Code, are reasonable restrictions and their imposition is essential to attain the legitimate policy ob0ectives embodied in the law. 3e hold that they constitute a $a#id eLerci+e o4 t3e 7o#ice 7o>er of the state. @dB @& omitted paragraph d para mabawasan yung binabasa niyoB @eB 52S3 stri'e is illegal. O #he 52S3 declared the stri'e si% @DB days after filing a stri'e notice, i.e., before the lapse of the mandatory cooling-off period. &t also failed to file with the

1*LE before launching the stri'e a report on the stri'e-vote, when it should have filed such report Eat least seven @>B days before the intended stri'e.E 4nder the circumstances, we are perforce constrained to conclude that the stri'e staged by petitioner is not in conformity with law ECONOMIC AND UNFAIR LABOR PRACTICE STRI9E

1. <!e Labor Code re ognizes onl" t'o valid grounds #or t!e de laration o# a stri/e.
,he 2 are : a. collective bargaining deadloc'G and b. E"s unfair labor practice. # stri*e not based on any of these 2 causes is necessarily tainted with ille!ality. *Azu ena-

2. ?3en doe+ a dead#oc; ari+eF A deadloc' arises when there is an impassa which
presupposes reasonable effort at good faith bargaining which, despite noble intentions, does not conclude the agreement between the parties. 3here for instance, the E" never made any serious efforts to respond to proposals from the union, it cannot be maintained that a deadloc' arose. *4ivine &ord 3niversit" vs. Se retar" o# Labor-

3. Legality of stri'e is not dependent upon the ability of management to grant demands. &f
said demands cannot be granted for being un0ust or unreasonable, the only conse(uence should be their re0ection and not the punishment of the wor'ers who presented them. *Caltex vs. %LO-

'O? TO 9NO? IF T'E STRI9E IS LE ALF


PURPOSE AND MEANS TEST Y &f the purpose is trivial, un0ust, and unreasonable or it was carried out through unlawful means, the stri'e is illegal. Y &n cases no falling within the prohibition against stri'es, its legality depends upon8 7- the purpose for which it is maintained 6- the means employed in carrying it on

Luzon Marine 4ept. 3nion v. Roldan


#he stri'e was illegal because the reason for it was merely to prove that the union numbered more than +, members. 3e have adverted to the ruling of this Court in 2e+ ,a+icab >ompany vs. >ourt of Industrial 2elations, supra, that in cases not falling within the prohibition against stri'es, the legality or illegality of a stri'e depends, first, upon the purpose for which it is maintained, and, second, upon the means employed in carrying it on. #hus, if the purpose which the laborers intend to accomplish by means of a stri'e is trivial, unreasonable or un/ust or if in carrying on the stri'e, the stri'ers should commit violence or cause in0uries to persons or damage to property, the stri'e, although not prohibited by in0unction, may be declared by the court illegal, with the adverse conse(uences to the stri'ers.

%!il. Marine O##i ers Build v. Cia. Maritima


&n this 0urisdiction, however, acts of violence in carrying on a stri'e are not so easily overloo'ed in the determination of its legality or illegality. #o overloo' them Ewould encourage abuses and terrorism and would subvert the very purpose of the law which provides for arbitration and peaceful settlement of disputes.

#his Court has repeatedly frowned upon the use of unlawful means in carryin! out a stri*e. &n cases not falling within the prohibition against stri'es, the legality or illegality of a stri'e depends first, upon the purpose for which it is maintained, and, second, upon the means employed in carrying it on. #hus, if the purpose which the laborers intend to accomplish by means of a stri*e is trivial0 unreasonable0 or un/ust or if in carryin! on the stri*e the stri*ers should commit violence or cause in/uries to persons or dama!e to property0 the stri*e0 althou!h not prohibited by in/unction0 may be declared by the court ille!al with the adverse conse6uences to the stri*ers. 9ere we find that the ma0ority opinion predicated the illegality of the stri'e not merely on the infringement of said agreement by the union but on the proven fact that, in carrying out the stri'e, coercion, force, intimidation, violation @sicB with physical in0uries, sabotage and the use of unnecessary and obscene language or epithets were committed by top officials and members of the union in an attempt to prevent arbitration and peaceful settlement of labor disputes. As aptly said in one case8 FA labor philosophy based upon the theory that mi!ht is ri!ht, in disregard of law and order, is an unfortunate philosophy of regression whose sole conse(uences can be disorder, class hatred and intolerance. #he C&", in finding the .1*: responsible for the aforementioned acts of violence, said8 As some of the above offenses were perpetrated by the pic'eters not only in Hen'oFs presence but in direct cooperation with him and under his leadership .1*: cannot seriously pretend innocence and avoid complicity in or liability for their acts and conduct and the conse(uent effects thereof upon 1aritimaFs property. R8#e on $icario8+ #ia%i#itA 3a+ %een a%andoned 8 #rue, Section A@cB of the Act has discarded the principle of Evicarious liabilityE under which a stri'ing labor organi$ation is necessarily held responsible for the acts of even a single stri'er. #hat the law, as it is now, re(uires in order to hold an association or or!ani'ation liable for the unlawful acts of individual officers0 members0 or a!ents0 3proof of actual participation in0 or actual authori'ation of such acts or of ratifyin! of such acts after actual *nowled!e thereof.F &t is not essential that two or three of these elements should concur. *ne suffices. &n the case at bar, the unlawful acts, as already pointed out, were done in the presence of Hen'o as well as with his cooperation and under his direction and, hence, conclusive of the actual participation and ratification thereof of .1*:. 1oreover, there is nothing in the record to show that this union disauthori$ed or ob0ected to Hen'oFs acts and those of the other pic'eters despite the fact that such acts had undoubtedly come to its 'nowledge or that of its officers and members. 4nder the circumstances, the C&" correctly held that the .1*: stri'e against 1A"&#&1A was illegal.

Caltex %!il In . v. %!il. Labor Org.( Caltex C!apter


#hese demands, if granted, would certainly tend to improve the conditions of the laborers and employees affected, and cannot be said to be trivial, much less illegal. /ut whether the same are unreasonable or un0ust is a matter to be decided after proper consideration. &f said demands cannot be granted for being un0ust or unreasonable, the only conse(uence, in the appropriate words of the Court of &ndustrial "elations in banc, should Ebe their re0ection and not the punishment of the wor'ers who presented them.E #o ma'e the legality or illegality of stri'es dependent solely on whether the demands of laborers may or may not be granted, is in effect to outlaw altogether an effective means for securing better wor'ing conditions. 3nion o# Filipro Emplo"ees v. 0estle %!il. #he 5L"C correctly upheld the illegality of the stri'es and the corresponding dismissal of the individual complainants because of their Ebra$en disregard of successive lawful orders of then Labor 1inisters /las 2. *ple, Augusto Sanche$ and Labor Secretary 2ran'lin )rilon dated )ecember 77, 7A<I, =anuary +,, 7A<D and 2ebruary C, 7A<D, respectively, and the cavalier treatment of the provisions of the Labor Code and the return-to-wor' orders of the 1inister @now

SecretaryB of Labor and Employment, or Articles 6DC and 6DI @now renumbered Arts. 6D+ and 6DCB. &n addition, the 5L"C gave the following reasons8 the stri'e was staged in violation of the e%isting C/A provisions on E5o Stri'eR5o Loc'out ClauseE stating that a stri'e, which is in violation of the terms of the collective bargaining statement, is illegal, especially when such terms provide for conclusive arbitration clauseG instead of e%hausting all the steps provided for in the grievance machinery provided for in the collective bargaining agreement to resolve the dispute amicably and harmoniously within the plant level, 42E went on stri'eG the prescribed mandatory cooling-off period and then >-day stri'e and after submission of the report of stri'e vote at 5estleFs 1a'ati *ffices and 1untinlupa and Cabuyao .lants were not complied with, while no notice of stri'e was filed by respondents when they staged the stri'e at 5estleFs Cagayan de *ro .lant contrary to the pertinent provision of Articles 6D+ and 6DC of the Labor Code, emphasi$ing that Ethe mandatory character of these cooling-off periods has already been categorically ruled upon by the Supreme CourtG in carrying out the stri'e, coercion, force, intimidation, violence with physical in0uries, sabotage, and the use of unnecessary and obscene language or epithets were committed by the respondent officials and members of either 42E or 3A#4. &t is well-settled that a stri'e conducted in this manner is illegal.

Relian e Suret" and Insuran e Co( v( 0LRC


&n effecting a change in the seating arrangement in the office of the underwriting department, the petitioner merely e%ercised a reasonable prerogative employees could not validly (uestion, much less assail as an act of unfair labor practice. #he Court is indeed at a loss how rearranging furniture, as it were, can 0ustify a four-month-long stri'e. UIDELINES AND BALANCIN OF INTEREST

S!ell Oil &or/ers 3nion v. S!ell Co. o# t!e %!ils. 4nder the circumstances, it would be going too far to consider that it thereby became illegal. #his is not by any means to condone the utili$ation of force by labor to attain its ob0ectives. &t is only to show awareness that in labor conflicts, the tension that fills the air as well as the feeling of frustration and bitterness could brea' out in sporadic acts of violence. &f there be in this case a weighing of interests in the balance, the ban the law imposes on unfair labor practices by management that could provo'e a stri'e and its re(uirement that it be conducted peaceably, it would be, to repeat, un0ustified, considering all the facts disclosed, to stamp the stri'e with illegally. &t is enough that individual liability be incurred by those guilty of such acts of violence that call for loss of employee status. Almira v. 6F Boodri ! %!ils( In . Legal despite the presence of violence because there were in0uries on both sides because management did not, understandably, play a passive role confronted as it was with the unruly disruptive tactics of labor. #his is not, by any means, to condone activities of such character, irrespective of the parties responsible. &t is merely to e%plain what cannot be 0ustified. A stri'e otherwise valid, if violent in character, may be placed beyond the pale. Care is to be ta'en, however, especially where an unfair labor practice is involved, to avoid stamping it with illegality 0ust because it is tainted by such acts. #o avoid rendering illusory the recognition of the right to stri'e, responsibility in such a case should be individual and not collective. A different conclusion would be called for, of course, if the e%istence of force while the stri'e lasts is pervasive and widespread, consistently and deliberately resorted to as a matter of policy. &t could be reasonably concluded then that even if 0ustified as to ends, it becomes illegal because of the means employed. IS OOD FAIT' A DEFENSEF

Inter'ood Emplo"ees Asso v. International Iard'ood &f the determination whether a stri'e is legal or illegal were to depend upon the reason or motive, no matter how groundless or false it may be, the stri'ing members of a labor union had in mind or believed in good faith at the time they staged the stri'e, there would then be no need for the court to pass upon that (uestion, because what the stri'ers had in mind or believed in good faith at the time they struc' can hardly be refuted, rebutted or disproved. &f the Court of &ndustrial "elations were bound to believe and so find what the stri'ing members of a labor union allege or claim to be the reason or motive for their staging a stri'e, because as claimed by the petitioner the right of the members of a labor union to stri'e for mutual aid or protection, as recogni$ed in section +, "epublic Act 5o. <>I, is an absolute right, then there would no longer be any necessity for holding or conducting a hearing, where both parties to the controversy may present their proofs and upon which the Court is to determine which of the claims or contentions is true, correct and lawful, as disclosed by the evidence before it. Luzon Stevedoring Corp. v. CIR &n Interwood (mployees #ssociation vs. International Fardwood H 1eneer >o., L->C,A, 1ay 7<, 7AID. I6 *.:. +A+D, +AC7, the Court has ruled that if the stri'ers act from an unlawful, illegitimate, un0ust, unreasonable, or trivial ground, reason or motive, even if they do so in good faith, and the >ourt of Industrial 2elations so finds0 the stri*e may be declared ille!al notwithstandin! their !ood faith. As a general rule, where the union believed that the employer committed 4L. and the circumstances warranted such belief in good faith, the resulting stri'e may be considered legal although, subse(uently, such allegations of 4L. were found to be groundless. 9*3E?E", a mere claim of good faith would not suffice. %eople Industrial and Commer ial Emplo"ees and &or/ers Org. v. %eople Industrial and Commer ial Emplo"ees and &or/ers Corp. #he stri'e is legal. A stri'e may be considered legal when the union believed that the respondent company committed unfair labor acts and the circumstances warranted such belief in good faith although subse(uently such allegation of unfair labor practices are found out as not true. Master Iron Labor 3nion v. 0LRC All told, the stri'e staged by the petitioners was a legal one even though it may have been called to offset what the stri'ers believed in good faith to be unfair labor practices on the part of the employer. ?erily, such presumption of legality prevails even if the allegations of unfair labor practices are subse(uently found out to be untrue. Consonant with these 0urisprudential pronouncements, is Article 6D+ of the Labor Code which clearly states Ethe policy of the State to encourage free trade unionism and free collective bargainingE. .aragraph @bB of the sale article guarantees the wor'ersF Eright to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protectionE and recogni$es the Eright of legitimate labor organi$ations to stri'e and pic'et and of employers to loc'outE so long as these actions are Econsistent with the national interestE and the grounds therefor do not involve inter-union and intra-union disputes. i$e +o=e eLa=7#e+ o4 +tri;e 3a$in& a #a>48# 78r7o+e. 7. Stri'e incident to collective bargaining. @&d.B

2. Self-defenses i.e. stri'e held against the formation of a company dominated union.
*4avao Free &or/ers vs. CIR-

3. Stri'e against E"s unfair labor practice. *Namboanga &ood %rodu ts vs. 0LRC4. 4nfair labor practice stri'e in good faith, although such acts by the E" were not found to
be unfair labor practices. *%epsi>Cola Labor 3nion vs. 0LRC-

5. Stri'e to compel recognition of and bargaining with ma0ority union. *Caltex Filipino
Managers and Supervisors Asso iation vs. CIR- L9owever, a stri'e for union recognition is through a certification election. *Azu enai$e +o=e eLa=7#e+ o4 +tri;e+ >it3 no #a>48# 78r7o+e+:

1. Stri'e due to rearrangement of office. *Relian e Suret" vs. 0LRC2. Stri'e due to companys sales evaluation policy *B<E 4ire tories vs. San !ez3. Stri'e to compel removal of an EE not due to violation of union security arrangement.
*Azu ena-

4. Salary distortion under the 3age "ationali$ation Act *I6M vs. 0LRC5. &nter-union or intra-union dispute. *Art. 2+,6. Stri'e to compel company to produce ban' statements to show actual financial condition
of the company. 3hat the union may only re(uire are up-to-date financial information normally submitted to relevant government agencies such as balance sheets and financial statements. *Se . 2( Rule MIII( 6oo/ H( IRR5sMEANS AND MET'ODS

1. Even if the purpose of a stri'e is valid, the stri'e may be held invalid where the means
employed are illegal. *3nited Seamen5s 3nion o# t!e %!ilippines vs. 4avao S!ipo'ners Asso iation- #he use of violence, intimidation, restraint or coercion in carrying out concerted activities, which are in0urious to the rights of property, or to particular individuals ma'e a stri'e illegal. *Liberal Labor 3nion vs. %!il. Can Co.9owever, minor disorders will not suffice to ma'e a stri'e illegal *Insular Li#e EE5s Assn.vs. Insular Li#e2. ,he stri*e by a union in a !asoline company was attended with violence in $ or % occasions. ,he stri*e is sou!ht to be declared ille!al on !rounds that it was attended by violence. Is this alle!ation tenable? &t depends on the factual circumstance of the case. &f the acts of violence are not pervasive, and the responsibility for the acts are individual, then the stri'e may be considered still legal. *S!ell Oil &or/ers 3nion vs. S!ell5. If some mana!ement officials were unable to leave the premises because of a stri*e0 may the stri*ers be held !uilty of ille!al detention? No. #he detention was not done in criminal intent. 3hile no doubt to be deplored, such conduct cannot be made a basis for a finding of criminal guilt. *%eople vs. 6arbaNo 7er+on en&a&ed in 7ic;etin& +3a##: 7Commit any act of violence, coercion or intimidation 6*bstruct the free ingress to or egress from the E"s premises for lawful purposes +*bstruct public thoroughfares Coercing or threatening non-stri'ing EEs is illegal #he union may persuade non-stri'ing members, /4# cannot coerce or intimidate them, to 0oin the stri'e, &ill a violen e ommitted during a stri/e ma/e t!e stri/e an illegal one) It de7end+.

:enerally in 4L. stri'es, the court has been liberal. Y &f violence is committed only by some individuals, the stri'e will not be declared illegal but the person actually committing such illegal act will suffer the conse(uences. Y &f the violence is pervasive and widespread, consistently and deliberately resorted to as a matter of policy, it is illegal because of the means employed. &!at is e##e t i# stri/e is de lared illegal) FOR <IE OFFICERS$ Y if he 'nowingly participates in illegal stri'e8 losses employment status. FOR <IE EM%LOFEE$ Y 1ere participation in illegal stri'e8 not ground for termination of employment, even though employer hired a replacement. /ut participation in &LLE:AL AC#S during a stri'e @whether legal stri'e or illegal stri'eB8 means loss of employment for the employee. #AKE 5*#E8 ?icarious liability, meaning the fault of one is the fault of all, is not applicable in stri'es. *nly those who performed the illegal acts will be punished.@Shell oil N Almira caseB E44ect o4 I##e&a#itA Art. 2+9. %ro!ibited a tivities. K @aB 5o labor organi$ation or employer shall declare a stri'e or loc'out without first having bargained collectively in accordance with #itle ?&& of this /oo' or without first having filed the notice re(uired in the preceding Article or without the necessary stri'e or loc'out vote first having been obtained and reported to the )epartment. 5o stri'e or loc'out shall be declared after assumption of 0urisdiction by the .resident or the Secretary or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the stri'e or loc'out. EFFECT OF UNLA?FUL LOC9(OUT Y Any wor'er whose employment has been terminated as a conse(uence of an unlawful loc'out shall be entitled to reinstatement with full bac'wages. EFFECT OF UNLA?FUL STR9E &!o ma" be de lare to !ave lost !is emplo"ment status) 7B Any union officer who 'nowingly participates in an illegal stri'e 6B And any wor'er or union officer who 'nowingly participates in the commission of ille!al acts during a stri'e may be declared to have lost his employment status8 &!o ma" 0O< 6E de lared to !ave lost t!eir emplo"ment) .rovided, that mere participation of a wor'er in a lawful stri'e shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the employer during such lawful stri'e. IMPLEMENTIN RULES8 Firin! of replacements. O #he mere participation of a wor'er in a lawful stri'e shall not constitute sufficient ground for termination of his employment even if a replacement had been hired by the employer during such lawful stri'e. /ut any union officer who 'nowingly participates in the commission of illegal acts during a stri'e may be declared to have lost his employment status. 4i'a ng %ag/a/aisa v. Filtex Internation Corp.

9EL)8 3or' was resumed in the afternoon of 2ebruary 6,, 7AD7, and all the employees were readmitted e%cept the union officers. &n other words the incident of 2ebruary 7A was already closedG and if a stri'e was called on 2ebruary 6D it was because the readmission of the said officers, as demanded in the letter of the union dated 2ebruary 66, was refused. Since such refusal appears to be groundless, the fact that a stri'e was called on 2ebruary 6D, 7AD7 would not affect the resolution of this case, the only issue here being the legality or illegality of the alleged stri'e of 2ebruary 7A. #he decision appealed from is hereby modified by ordering the reinstatement of the officers of the union who were refused admission by the respondent, with bac'wages from the date of such refusal less whatever amounts earned by them from other employment during the same period or could have been earned with the e%ercise of reasonable diligence. In assessin! the bac*wa!es the guidelines indicated by this Court in the case of &togon-Suyoc 1ines, &nc. vs. Sa`gilo-&togon 3or'ersF 4nion, and subse(uently applied in East Asiatic Co., Ltd., et al. vs. C&", should be observed, as follows8 2irst. #o be deducted from the bac' wages accruing to each of the laborers to be reinstated is the total amount of earnings obtained by him from other employment@sB from the date of dismissal to the date of reinstatement. Should the laborer decide that it is preferable not to return to wor', the deduction should be made up to the time 0udgment becomes final. And these, for the reason that employees should not be permitted to enrich themselves at the e%pense of their employer. /esides, there is the ^lawFs abhorrence for double compensation.F Second. Li'ewise, in mitigation of the damages that the dismissed respondents are entitled to, account should be ta'en of whether in the e%ercise of due diligence respondents might have obtained income from suitable remunerative employment 3e are prompted to give out this last reminder because it is really un0ust that a discharged employee should, with folded arms, remain inactive in the e%pectation that a windfall would come to him. A contrary view would breed idlenessG it is conducive to lac' of initiative on the part of a laborer. /oth bear the stamp of undesirability. Maria C!ristina Fertilizer %lant Emplo"ees Asso . v. <anda"ag /+ee Di++entin& O7inion a#+o0 #he Supreme Court affirmed the resolution of the &ndustrial Court lawful acts, had lost their status as employees. A stri'e is illegal where the stri'ers resort to unlawful acts in the conduct of the stri'e, such as conducting a highly coercive pic'eting, preventing the plant supervisor from chec'ing defects in the company plant, threatening with harm or violence a contractor dealing with the company, using human barricades to bloc' the ingress of nonstri'ers, and displaying inflammatory placards. &t is not a grave abuse of discretion for the Court of &ndustrial "elations to declare that union officers and members, who too' part in an illegal stri'e, authori$ed the unlawful acts, committed them or ratified them, had lost their status as employees. Di++ent o4 M8+tice Fernando *n a more specific level, it may be stated that a stri'e does not automatically carry the stigma of illegality even if no unfair labor practice were committed by the employer. &t suffices if such a belief in good faith is entertained by labor as the inducing factor for staging a stri'e. So it was clearly stated by Chief =ustice Concepcion, while still an Associate =ustice of this Court8 EAs a conse(uence, we hold that the stri'e in (uestion had been called to offset what petitioners were warranted in believing in good faith to be unfair labor practices on the part of 1anagement, that petitioners were not bound, therefore, to wait for the e%piration of thirty @+,B days from notice of stri'e before staging the same, that said stri'e was not, accordingly, illegal and that the stri'ers had not thereby lost their status as employees of respondents herein. 3hy a mere finding of the illegality of a stri'e should not be automatically followed by wholesale dismissal was once again stressed in the recent case of Almira v. /. 2. :oodrich .hilippines, &nc. in these words8 E&t would imply at the very least that where a penalty less punitive would suffice, whatever missteps may be committed by labor ought not to be visited with a conse(uence so severe. &t is not only because of the lawFs concern for the wor'ingman. #here is, in addition, his family to consider. 4nemployment brings untold hardships and sorrows on those dependent on the wage-earner. #he misery and pain attendant on the loss of 0obs then

could be avoided if there be acceptance of the view that under all the circumstances of this case, petitioners should not be deprived of their means of livelihood. 5or is this to condone what had been done by them. 2or all this while, since private respondent considered them separated from the service, they had not been paid. 2rom the strictly 0uridical standpoint, it cannot be too strongly stressed, to follow )avis in his masterly wor', )iscretionary =ustice, that where a decision may be made to rest on informed 0udgment rather than rigid rules, all the e(uities of the case must be accorded their due weight. 2inally, labor law determinations, to (uote from /ultmann, should be not only secundum rationem but also secundum caritatem.E #his decision, it must be noted, was rendered after the effectivity of the present Constitution. 9ence this dissent, there being, to my mind, a failure to meet the more e%acting standard to 0ustify dismissal of stri'ers, even on the assumption that the stri'e could be declared illegal. %epsi Cola Labor 3nion v. 0LRC Although the stri'e was declared illegal, there was absence of proof that the ran' and file members of the 4nion who participated therein deserve their loss of employment. #heir sole membership in the union or their given authority to it to stri'e, believing in good faith that it was their sole bargaining representative, did not ma'e them liable if they did not actually participate therein. #he officers of the 4nion who staged the stri'e in defiance of the 1ed-ArbiterFs ruling should be held solely responsible. 6a us v. Ople A mere finding of the illegality of a stri'e should not be automatically followed by wholesale dismissal of the stri'ers from their employment 3nion o# Filipro Emplo"ees v. 0estle A stri'e that is underta'en despite the issuance by the Secretary of Labor of an assumption or certification order becomes a prohibited activity and thus illegal, pursuant to the second paragraph of Art. 6DC of the Labor Code as amended. #he 4nion officers and members, as a result, are deemed to have lost their employment status for having 'nowingly participated in an illegal act. Relian e Suret" and Insuran e v. 0LRC &n staging the stri'e in (uestion, a stri'e that was illegal in more ways than one, the reinstated union officers were clearly in bad faith, and to reinstate them without, indeed, loss of seniority rights, is to reward them for an act public policy does not sanction. 3e can not apply, either, the ruling in /acus v. *ple, where we held that the mere finding of illegality attending a stri'e does not 0ustify the EwholesaleE dismissal of stri'ers who were otherwise impressed with good faith. #he Court must not be understood to be abandoning the teachings of either 2errer, Almira, or /acus. #he Court reiterates that good faith is still a valid defense against claims of illegality of a stri'e. 3e do find, however, not a semblance of good faith here, but rather, plain arrogance, pride, and cynicism of certain wor'ers. Luzon Marine 4ept. 3nion v. Roldan 3e have adverted to the ruling of this Court in "e% #a%icab Company vs. Court of &ndustrial "elations, supra, that in cases not falling within the prohibition against stri'es, the legality or illegality of a stri'e depends, first, upon the purpose for which it is maintained, and, second, upon the means employed in carrying it on. #hus, if the purpose which the laborers intend to accomplish by means of a stri'e is trivial, unreasonable or un0ust or if in carrying on the stri'e, the stri'ers should commit violence or cause in0uries to persons or damage to property, the stri'e, although not prohibited by in0unction, may be declared by the court illegal, with the adverse conse(uences to the stri'ers. %!il. Marine O##i ers Build v. Cia Maritima

&n this 0urisdiction, however, acts of violence in carrying on a stri'e are not so easily overloo'ed in the determination of its legality or illegality. #o overloo' them Ewould encourage abuses and terrorism and would subvert the very purpose of the law which provides for arbitration and peaceful settlement of disputes. this Court has repeatedly frowned upon the use of unlawful means in carrying out a stri'e. &n cases not falling within the prohibition against stri'es, the legality or illegality of a stri'e depends first, upon the purpose for which it is maintained, and, second, upon the means employed in carrying it on. #hus, if the purpose which the laborers intend to accomplish by means of a stri'e is trivial, unreasonable, or un0ust or if in carrying on the stri'e the stri'ers should commit violence or cause in0uries to persons or damage to property, the stri'e, although not prohibited by in0unction, may be declared by the court illegal with the adverse conse(uences to the stri'ers. 9ere we find that the ma0ority opinion predicated the illegality of the stri'e not merely on the infringement of said agreement by the union but on the proven fact that, in carrying out the stri'e, coercion, force, intimidation, violation @sicB with physical in0uries, sabotage and the use of unnecessary and obscene language or epithets were committed by top officials and members of the union in an attempt to prevent arbitration and peaceful settlement of labor disputes. As aptly said in one case8 FA labor philosophy based upon the theory that might is right, in disregard of law and order, is an unfortunate philosophy of regression whose sole conse(uences can be disorder, class hatred and intolerance. #he C&", in finding the .1*: responsible for the aforementioned acts of violence, said8 As some of the above offenses were perpetrated by the pic'eters not only in Hen'oFs presence but in direct cooperation with him and under his leadership .1*: cannot seriously pretend innocence and avoid complicity in or liability for their acts and conduct and the conse(uent effects thereof upon 1aritimaFs property. #rue, Section A@cB of the Act has discarded the principle of Evicarious liabilityE under which a stri'ing labor organi$ation is necessarily held responsible for the acts of even a single stri'er. #hat the law, as it is now, re(uires in order to hold an association or organi$ation liable for the unlawful acts of individual officers, members, or agents, Fproof of actual participation in, or actual authori$ation of such acts or of ratifying of such acts after actual 'nowledge thereof.F &t is not essential that two or three of these elements should concur. *ne suffices. &n the case at bar, the unlawful acts, as already pointed out, were done in the presence of Hen'o as well as with his cooperation and under his direction and, hence, conclusive of the actual participation and ratification thereof of .1*:. 1oreover, there is nothing in the record to show that this union disauthori$ed or ob0ected to Hen'oFs acts and those of the other pic'eters despite the fact that such acts had undoubtedly come to its 'nowledge or that of its officers and members. 4nder the circumstances, the C&" correctly held that the .1*: stri'e against 1A"&#&1A was illegal. Caltex %!il. In .( v. %!il. Labor Org. &f after the decision of the Court of &ndustrial "elations declaring a stri'e illegal, new demands or matters arise not connected with, or similar to, the demands in the former case, and the laborers struc' anew, the new stri'e cannot be held as a violation of the decision.

LABOR INMUNCTION
DEFINITION AND NATURE Miria= ?e%+ter DictionarA 6 INMUNCTION: An in0unction is available as a remedy for harm for which there is no ade(uate remedy at law. #hus it is used to prevent a future harmful action rather than to compensate for an in0ury that has already been occurred, or to provide relief from harm for which an award of money damages is not a satisfactory solution or for which a monetary value is impossible to calculate. A defendant who violates an in0unction is sub0ect to penalty for contempt. %!ilippine Airlines( In . v. 0LRC ( 2;1 SCRA +12 *7::;-

:E5E"ALLH, inQ8nction is a preservative remedy for the protection of oneFs substantive rights or interest. &t is not a cause of action in itself but merely a provisional remed", an ad0unct to a main suit. &t is resorted to only when there is a pressing necessity to avoid in0urious conse(uences which cannot be remedied under any standard of compensation. #he application of the in0unctive writ rests upon the e%istence of an emergency or of a special reason before the main case be regularly heard. <!e essential onditions #or granting su ! temporar" in=un tive relie# are$ 7B that the complaint alleges facts which appear to be sufficient to constitute a proper basis for in0unction and 6B that on the entire showing from the contending parties, the in0unction is reasonably necessary to protect the legal rights of the plaintiff pending the litigation. &5=45C#&*5 is also a special e(uitable relief granted only in cases where there is no plain, ade(uate and complete remedy at law. &n labor cases, Artic#e 21* o4 t3e La%or Code empowers the 5L"C O E@eB #o en0oin or restrain any actual or threatened commission of any or all prohibited or unlawful acts or to re(uire the performance of a particular act in any labor dispute which, if not restrained or performed forthwith, may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such partyG . . . @Emphasis *ursB Complementing the above-(uoted provision, Sec. 1) R8#e -I o4 t3e Ne> R8#e+ o4 Proced8re o4 t3e NLRC, pertinently provides as follows8 ESection 7. &n0unction in *rdinary Labor )ispute. O A preliminary in0unction or a restraining order may be granted by the Commission through its divisions pursuant to the provisions of paragraph @eB of Article 67< of the Labor Code, as amended, -when it is established on the bases of the +>orn a##e&ation+ in the petition -that the acts complained of, aB involving or arising from any #a%or di+78te before the Commission, which, bB if not restrained or performed forthwith, may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party. #he foregoing an illar" po'er may be e%ercised by the Labor Arbiters8 -ONLY a+ an INCIDENT to t3e ca+e+ 7endin& before them in order to preserve the rights of the parties during the pendency of the case, (( /4# eLc#8din& labor disputes involving stri'es or loc'out. 2rom the foregoing provisions of law, the power of the 5L"C to issue an in0unctive writ originates from EanA #a%or di+78teE upon application by a party thereof, which application if not granted Emay cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party.E #he term ELABOR DISPUTEE is defined as Eany controversy or matter concerning terms and conditions of employment or the association or representation of persons in negotiating, fi%ing, maintaining, changing, or arranging the terms and conditions of employment regardless of whether or not the disputants stand in the pro%imate relation of employers and employees.E #he term ECONTRO.ERSY is li'ewise defined as Ea litigated (uestionG adversary proceeding in a court of lawG a civil action or suit, either at law or in e(uityG a 0usticiable dispute.E A EQ8+ticia%#e contro$er+AE is Eone involving an active antagonistic assertion of a legal right on one side and a denial thereof on the other concerning a real, and not a mere theoretical (uestion or issue.E #a'ing into account the foregoing definitions, it is an ESSENTIAL REGUIREMENT that8 there must first be a LA/*" )&S.4#E between the contending parties before the labor arbiter.

&!" does in=un tion not appl" to t!e #a ts o# t!is ase) &n the present case, there is no labor dispute between the petitioner and private respondents as there has yet been no complaint for illegal dismissal filed with the labor arbiter by the private respondents against the petitioner. 2urthermore, an e%amination of private respondentsF petition for in0unction reveals that it has no basis since there is no showing of any urgency or irreparable in0ury which the private respondents might suffer. &!en is an in=ur" onsidered irreparable) An in0ury is considered irreparable if it is of such constant and fre(uent recurrence that no fair and reasonable redress can be had therefor in a court of law, or where there is no standard by which their amount can be measured with reasonable accuracy, that is, it is not susceptible of mathematical computation. &t is considered irreparable in0ury when it cannot be ade(uately compensated in damages due to the nature of the in0ury itself or the nature of the right or property in0ured or when there e%ists no certain pecuniary standard for the measurement of damages. &n the case at bar, the alleged in0ury which private respondents stand to suffer by reason of their alleged illegal dismissal can be ade(uately compensated and therefore, there e%ists no Eirreparable in0ury,E as defined above which would necessitate the issuance of the in0unction sought for. Article 6>A of the Labor Code provides that an employee who is un0ustly dismissed from employment shall be entitled to reinstatement, without loss of seniority rights and other privileges, and to the payment of full bac'wages, inclusive of allowances, and to other benefits or their monetary e(uivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. #he ruling of the 5L"C that the Supreme Court upheld its power to issue temporary mandatory in0unction orders in the case of Chemo-#echnische 1fg., &nc. Employees 4nion-)2A, et. al. vs. Chemo-#echnische 1fg., &nc. et. al., doc'eted as :.". 5o. 7,>,+7, is misleading. As correctly argued by the petitioner, no such pronouncement was made by this Court in said case. *n =anuary 6I, 7AA+, we issued a 1inute "esolution in the sub0ect case stating as follows8 EConsidering the allegations contained, the issues raised and the arguments adduced in the petition for certiorari, as well as the comments of both public and private respondents thereon, and the reply of the petitioners to private respondentFs motion to dismiss the petition, the Court "esolved to )E5H the same for being premature.E &t is clear from the above resolution that we did not in anyway sustain the action of the 5L"C in issuing such temporary mandatory in0unction but rather we dismissed the petition as the 5L"C had yet to rule upon the motion for reconsideration filed by petitioner. #hus, the minute resolution denying the petition for being prematurely filed. 2inally, an in0unction, as an e%traordinary remedy, is not favored in labor law considering that it generally has not proved to be an effective means of settling labor disputes. POLICY %e3ind 7ro3i%ition o4 i++8ance o4 inQ8nction: Y &t has been the policy of the State to encourage the parties to use the non-0udicial process of negotiation and compromise, mediation and arbitration. #hus, in0unctions may be issued only in cases of e%treme necessity based on legal grounds clearly established, after due consultations or hearing and when all efforts at conciliation are e%hausted which factors, however, are clearly absent in the present case. A. RULE ON INMUNCTIONS As a :E5E"AL "4LE, labor disputes are not sub0ect to in0unction. 9*3E?E", the protective force of the law will be applied when prohibited or unlawful acts are being or about to be committed that will cause grave or irreparable damage to the complaining party. *Azu ena-

Q Labor dispute ! 0urisdiction @5L"CB Caltex Filipino Managers and Supervisors Asso iation v. CIR ( 99 SCRA ,28 *7:12RATIONALE 4or 7ro3i%ition87B &t is well 'nown that the scheme in "epublic Act 5o. <>I for achieving ind8+tria# 7eace rests essentially on a FREE AND PRI.ATE A REEMENT between the employer and his employees as to the terms and conditions under which the employer is to give wor' and the employees are to furnish labor, unhampered as far as possible by 0udicial or administrative intervention. *n this premise the lawma'ing body has virtually prohibited the issuance of in0unctive relief involving or growing out of labor disputes. 6B #he prohibition to issue labor in0unctions is designed to &i$e #a%or a co=7ara%#e %ar&ainin& 7o>er with capital and must be liberally construed to that end. &t is said that the prohibition creates substantive and not purely procedural law. 3ithin the purview of our ruling, spea'ing through =ustice Labrador, in Social Security Employees Association @.A2L4B, et al. vs. #he 9on. Edilberto Soriano, et al. @:.". 5o. L-6,7,,, =uly 7D, 7ADC, 77 SC"A I7<, I6,B,8 BE0ERAL R3LE$ EMCE%<IO0$ there can be no inQ8nction i++8ed a&ain+t anA +tri;e. ESCE.# in only one instance, that is, when a labor dispute arises in an &5)4S#"H &5)&S.E5SA/LE #* #9E 5A#&*5AL &5#E"ES# and such dispute is CE"#&2&E) /H #9E ."ES&)E5# of the .hilippines to the Court of &ndustrial "elations in compliance with Sec. 7, of "epublic Act 5o. <>I.

%urpose o# an in=un tion in an 30CER<IFIE4 ase$ As a corollary to this, an in0unction in an uncertified case must be based on the strict re(uirements of Sec. A@dB of "epublic Act 5o. <>IG the purpose of such an in/unction is not to en/oin the stri*e itself0 but only unlawful activities. &n this case =udge #abigne cautioned the parties to maintain the status (uo G he specifically advised the employees 5*# #* :* *5 stri'e. 3ill disobedience to the 0udges advice constitute contemp of courtJ 5o. According to SC what =udge #abigne stated during said hearing should be construed what actually it was O an advice. #o say that it was an order would be to concede that respondent court could validly en0oin a stri'e, especially one which is not certified in accordance with Sec. 7, of "epublic Act 5o. <>I. #o adopt the view of respondent court would not only set at naught the policy of the law as embodied in the said statute against issuance of in0unctions, but also remove from the hands of labor unions and aggrieved employees an effective lawful weapon to either secure favorable action on their economic demands or to stop unfair labor practices on the part of their employer. /. REGUIREMENTS OF .ALID INMUNCTION Art. 21* : 7. 4nlawful acts are being committed or threatened to be committed. 6. #he act, if not en0oined or if not performed forthwith, may cause grave or irreparable damage. +. 3itnesses must be heard an opportunity for cross-e%amination provided. C. #he complaint is made under oath.

I. As to each item of relief, the in0ury to the complainant will be greater by its denial than to defendant by its grant. D. Complainant has no ade(uate remedy at law. >. .ublic officers are unwilling or unable to do their duty to ade(uately protect complainants property. Ila' at 6u/lod ng Manggaga'a *I6M- v. 0LRC ( 7:; SCRA 2;+ *7::7BE0ERAL R3LE$ >annot issue (K 7#2,( #s a rule such restrainin! orders or in/unctions do not issue ex parte0 but only after compliance with the followin! re6uisites0 to wit: aB a 'EARIN held Eafter due and PERSONAL NOTICE thereof has been served, in such manner as the Commission shall direct, to a## 'nown persons against whom relief is sought, and also to the C3ie4 ELec8ti$e and ot3er 78%#ic o44icia#+ of the province or city within which the unlawful acts have been threatened or committed charged with the duty to protect complainantFs propertyGE bB reception at the hearing of Ete+ti=onA o4 >itne++e+, with opportunity for cro++( eLa=ination, in support of the allegations of a complaint made under oath,E as well as Etestimony in opposition thereto, if offered . . .G cB Ea 4indin& o4 4act %A t3e Co==i++ion, to the effect8 @7B #hat prohibited or unlawful acts have been threatened and will be committed and will be continued unless restrained, -but no in0unction or temporary restraining order shall be issued on account of any threat, prohibited or unlawful act, -e%cept against the person or persons, association or organi$ation =a;in& the threat or co==ittin& the prohibited or unlawful act or act8a##A a8t3ori5in& or rati4Ain& the same after actual 'nowledge thereofG

@6B @+B

#hat +8%+tantia# and irre7ara%#e inQ8rA to complainantFs property will followG #hat as to each item of relief to be granted) &reater inQ8rA will be inflicted upon complainant by the denial of relief than will be indicted upon defendants by the granting of reliefG #hat complainant has no adeE8ate re=edA at #a>G and #hat the public officers charged with the duty to protect complainantFs property are unable or unwilling to furnish ade(uate protection.E

@CB @IB

EMCE%<IO0$ &!en it an issue ex parte. Fowever0 a temporary restrainin! order may be issued e+ parte under the followin! conditions: aB the complainant Eshall also allege that, unless a temporary restraining order shall be issued without notice, -a SUBSTANTIAL and IRREPARABLE INMURY to complainantFs PROPERTY will be unavoidableGE bB there is ETESTIMONY 8nder OAT') +844icient, if sustained, to 0ustify the Commission in issuing a temporary in0unction upon hearing after noticeGE

cB the Ecomplainant shall first 4i#e an 8nderta;in& >it3 adeE8ate +ec8ritA in an amount to be fi%ed by the Commission sufficient to recompense those en0oined for any loss, e%pense or damage caused by the improvident or erroneous issuance of such order or in0unction, including all reasonable costs, together with a reasonable attorneyFs fee, and e%pense of defense against the order or against the granting of any in0unctive relief sought in the same proceeding and subse(uently denied by the CommissionGE and dB the Etemporary restraining order shall be effective for no longer than twenty @6,B days and shall become $oid at t3e eL7iration o4 +aid t>entA /2D0 daA+.E #he reception of evidence Efor the application of a writ of in0unction may be delegated by the Commission to any of its Labor Arbiters who shall conduct such hearings in such places as he may determine to be accessible to the parties and their witnesses and shall submit thereafter his recommendation to the Commission.E #he record reveals that the Commission e%ercised the power directly and plainly granted to it by sub-paragraph @eB Article 67> in relation to Article 6IC of the Code, and that it faithfully observed the procedure and complied with the conditions for the e%ercise of that power prescribed in said sub-paragraph @eB. &t acted on S1CFs application for immediate issuance of a temporary restraining order eL 7arte on t3e &ro8nd t3at +8%+tantia# and irre7ara%#e inQ8rA to it+ 7ro7ertA >o8#d tran+7ire %e4ore t3e =atter co8#d %e 3eard) on noticeI it, however, first direct S1C Labor Arbiter Carmen #alusan to receive S1CFs testimonial evidence in support of the application and thereafter submit her recommendation thereonG it found S1CFs evidence ade(uate and issued the temporary restraining order upon bond. 5o irregularity may thus be imputed to the respondent Commission in the issuance of that order. &n any event, the temporary restraining order had a lifetime of only twenty @6,B days and became $oid i7+o 4acto at the eL7iration o4 t3at 7eriod. &n view of the foregoing factual and legal considerations, all irresistibly leading to the basic conclusion that the concerted acts of the members of petitioner 4nion in (uestion are violative of the law and their formal agreement with the employer, the latterFs submittal, in its counterpetition that there was, in the premises, a Elegal duty and obligationE on the part of the respondent Commission Eto en0oin the unlawful and prohibited acts and omissions of petitioner &/1 and the wor'ers complained ofE 6, O a proposition with which, it must be said, the *ffice of the Solicitor :eneral concurs, asserting that the Efailure of the respondent commission to resolve the application for a writ of in0unction is an abuse of discretion especially in the light of the fact that the restraining order it earlier issued had already e%piredE O must perforce be conceded. C. TEMPORARY RESTRAININ ORDER

#he Code allows the issuance of a temporary restraining order without prior notice to other parties concerned. #he issuance is predicated on complainants testimony or petition under oath that unless the order is issued without notice, substantial or irreparable in0ury to complainants property will be unavoidable. A temporary restraining order, however, automatically e%pires after 6, days. @&d.B PROCEDURE 4or i++8ance o4 Te=7orarA Re+trainin& Order aB the complainant Eshall also allege that, unless a temporary restraining order shall be issued without notice, -a SUBSTANTIAL and IRREPARABLE INMURY to complainantFs PROPERTY will be unavoidableGE bB there is ETESTIMONY 8nder OAT') +844icient, if sustained, to 0ustify the Commission in issuing a temporary in0unction upon hearing after noticeGE cB the Etemporary restraining order shall be effective for no longer than twenty @6,B days and shall become $oid at t3e eL7iration o4 +aid t>entA /2D0 daA+.E

dB 5o such temporary restraining order or temporary in0unction shall be issued e%cept on condition that -- Ecomplainant shall first 4i#e an 8nderta;in& >it3 adeE8ate +ec8ritA in an amount to be fi%ed by the Commission sufficient to recompense those en0oined for any loss, e%pense or damage caused by the improvident or erroneous issuance of such order or in0unction, including all reasonable costs, together with a reasonable attorneyFs fee, and e%pense of defense against the order or against the granting of any in0unctive relief sought in the same proceeding and subse(uently denied by the CommissionGE ILA? at B8;#od n& Man&&a&a>a $. NLRC # ,2. may be issued e+ parte under the followin! conditions#he complainant shall also allege that, unless a #"* shall be issued without notice, a +8%+tancia# and irre7ara%#e inQ8rA to t3e co=7#ainant2+ 7ro7ertA >i## %e 8na$oida%#e #here is te+ti=onA 8nder oat3, sufficient, if sustained, to 0ustify the Commission in issuing the temporary in0unction upon hearing after notice #he complainant shall first 4i#e an 8nderta;in& >it3 adeE8ate +ec8ritA in an amount to be fi%ed by the Commission sufficient to recompense those en0oined for any loss, e%pense or damage caused by the improvident or erroneous issuance of such order or in0unction, including all reasonable costs, together with a reasonable attorneys fee, and e%pense of defense against the order of against the ranting of any in0unctive relief sought in the same proceeding and subse(uently denied by the CommissionG and a) #he #"* shall be e44ecti$e 4or no #on&er t3an 2D daA+ and +3a## %eco=e $oid at t3e eL7iration o4 +aid 2D daA+. ). MURISDICTION TO ISSUE INMUNCTION Lies not with the regular courts but with the Commission @5L"CB. *Maria Cristina Fertilizer %lant EE5s Assn. Hs. <anda"ag- 9owever, regular courts may issue in0unction if it is to prevent stri'ers from preventing the lawful movement of +rd parties. *Republi Flour Mill &or/ers Assn. vs. Re"esRo#e O4 T3e La%or Ar%iter /Boo; . R8#e -Li Sec. 1"0T T#he reception of evidence for the application of the writ of in0unction may be delegated by the Commission to any Labor Arbiter who shall submit his recommendations to the Commissions for its consideration and resolution. 0estle %!ils. In . H. 0LRC ( 7:2 SCRA ,98 *7::7#he power of the 5L"C to issue writs of in0unction is found in Article 67< of the Labor Code, which provides8 SArt. 21*. .owers of the Commission. O #he Commission shall have the power and authority8 E@eB #o en0oin or restrain any actual or threatened commission of any or all prohibited or unlawful acts or to re(uire the performance of a particular act in any labor dispute which, if not restrained or performed forthwith, may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party8 . . .E MAIN POINT OF T'E CASE8 ,hat power0 as the statute provides0 can only be e+ercised in a ?#<.2 8IS74,(. InQ8nction and Med(Ar%iter 4inio v. Laguesma ( 21, SCRA 78: *7::1-

#here is no (uestion that the issuance of a temporary restraining order is addressed to the sound discretion of the 1ed-Arbiter. 9owever, Ethis discretion should be e%ercised based upon the grounds and in the manner provided by law.E &n the case of labor in0unctions or temporary restraining orders, one may issue only in instances where the complainant or applicant will suffer grave or irreparable damages as provided in Sec. I, "ule S?&, /oo' ? of the *mnibus "ules &mplementing the Labor Code8 Sec I. &n0unctions. O 5o temporary in0unctions or restraining order in any case involving or growing out of a labor dispute shall be issued by any court or other entity. *n the other hand, the .ffice of the 7resident0 the Secretary of ?abor0 the >ommission0 the ?abor #rbiter or med& arbiter may en/oin any or all acts involvin! or arisin! from any case pendin! before any of said offices or officials which if not restrained forthwith may cause !rave or irreparable dama!e to any of the parties to the case or seriously affect social or economic stability. &n the instant controversy, the first petition for in0unction and temporary restraining order filed by petitioners on 6A =anuary 7AA6 was manifestly insufficient to show grave or irreparable in0ury and it pu$$les us to no end how the 1ed-Arbiter could have issued the temporary restraining order on such flimsy basis. 2or instance, petitioners alleged that the .C&/E4-Comelec was illegally constituted, yet, they unhesitatingly participated in the pre-election process. #hey announced their candidates and actively campaigned for them. &n the petition for in0unction itself, petitioners even stated that they filed their certificates of candidacy in compliance with the directives of the .C&/E4-Comelec. 6+ 9ow can petitioners obey the orders of the .C&/E4Comelec and at the same time re0ect its authorityJ #his should have put the 1ed-Arbiter on guard. We thus concur with the findin!s of the public respondent: 3hile it is true that the 1ed-Arbiter has the authority to issue a writ of preliminary in0unction, or a temporary restraining order against any act arising from any case pending before him, the e%ercise thereof shall always be sub/ect to the test of reasonableness. #he 1ed-Arbiter should ascertain that the act complained of, if not restrained forthwith, may cause grave or irreparable damage to any of the parties to the case. 8ama!e is considered RirreparableR: @aB if it is of such constant and fre(uent recurrence that no fair or reasonable redress can be had therefor in a court of law @Allendorf vs. Abalanson, +< .hil. I<IB, or @bB where there is no standard by which their amount can be measured with reasonable accuracy, that is, it is not susceptible of mathematical computation @SSC vs. /ayona, et al., L7+III, 1ay +,, 7AD6B. 1easured against such test, the act complained of in the present case such as the conduct of the election as originally set on +7 =anuary 7AA6 may not be said to cause Egrave or irreparableE damage to the petitioner-appellee considering that any complaint or (uestion on the conduct of the election maybe the sub0ect of protest, an administrative remedy available and convenient to the parties in the case. *n the contrary, considering that the petition for issuance of a writ of in0unction was filed barely two days before the date set for the conduct of the election, when the election materials were already readied and the other mechanics for election had already been threshed out, to say the least, the damage that would result would substantially be more, should the election be postponed to another indefinite time. &t is well to remember that Ein0unctions or restraining orders are frowned upon as a matter of labor relations policy,E and as a general reminder8 #here is no power the e%ercise of which is more delicate which re(uires greater caution, deliberation, and sound discretion, or @which isB more dangerous in a doubtful case than the issuing of an in0unctionG it is the strong arm of e(uity that never ought to be e%tended unless to cases of great in0ury, where courts of law cannot afford an ade(uate or commensurate remedy

in damages. #he right must be clear, the in0ury impending or threatened, so as to be averted only by the protecting preventive process of in0unction. E. INMUNCTION IN NATIONAL INTEREST CASES 3hen is a stri'e en0oined by the assumption of 0urisdiction of the president or the Secretary of Labor and EmploymentJ A stri'e or loc'out is prohibited after assumption of 0urisdiction by the .resident or the Secretary of Labor 8 7. in industries indispensable to the national interestG or 2. after certification or submission of the dispute to compulsory or voluntary arbitration. @Art. 2<1B #he Code vests the .resident and the Secretary of Labor almost unlimited discretion as to what industries may be considered indispensable to national interest. *Azu enaB E.7 PO?ER TO ASSUME MURISDICTION CONSTITUTIONAL Art. 2<" and 2<1 have been enacted pursuant to the police power to the State. &t is an inherent power of the State which does not need to be e%pressly conferred by the Constitution. *3nion o# Filipro EE5s vs. 0estleE.6 CERTIFICATION OF LABOR DISPUTE : AUTOMATIC INMUNCTION Such assumption of the Secretary or certification to the 5L"C for compulsory arbitration has the effect of automatically en0oining the intended or ongoing stri'e or loc'out as specified in the assumption or certification order. *Azu ena- #his assumption or certification order is immediately effective even without a return-to-wor' order. *3nion o# Filipro EE5s vs. 0estle- A stri'e that is underta'en despite the issuance by the Secretary of Labor of an assumption or certification order becomes a prohibited activity and thus illegal. *Namboanga &ood %rodu ts vs. 0LRC- 5ot only union officers but also union members who defy return-to-wor' order are sub0ect to dismissal for participation in an illegal act. *St. S !olasti a5s College vs. <orres Assumption and certification orders are e%ecutory in character and are to be strictly complied with by the parties even during the pendency of any petition (uestioning their validity. E.+ EFFECT OF CERTIFICATION FOR COMPULSORY ARBITRATION #he certification for compulsory arbitration overrides other unresolved proceedings before the 5L"C. .roceedings in the in0unction and unfair labor practice cases filed by the E" necessarily have to be suspended to await the outcome of the compulsory arbitration proceedings. *6agong 6a"an Realt" vs. OpleE.C INCIDENTAL ISSUES 1ay the Secretary of Labor, in the e%ercise of his 0urisdiction under Article 6D+ @gB ta'es cogni$ance of an issue which is merely incidental to the labor dispute over which he has assumed 0urisdictionJ Ye+, provided said issue is involved in the labor dispute itself or otherwise submitted to him for resolution. *St. S !olasti a5s College vs. <orresBa+ica##A) t3e 4o##o>in& 7oint+ are >3at t3e Pro4e++or Di+ini e=73a+i5ed in t3e inte&ration #ect8re. 7. Labor &n0unction is not the same as the in0unction under the rules of court. 6. :eneral rule is stated in Art. 6IC #he e%ceptions are in Art. 67< and Art. 6DC Y &f you are filing in0unction under Art. 67<, the allegations of the acts committed are different from the allegations of acts committed under Art. 6DC. /4# the procedure to follow is the same, Art. 67<.

+. .rocedure for issuance of #"* is different from procedure of issuance of &n0unction. Y #here similarity is in the testimony given. Y /ut #"* is different because it is valid only for 6, days. C. &t is important to ta'e note of the /*5) filed. And what other remedies there are 0ust incase the in0unction or #"* is wrongfully issued.

A REEMENT OF T'E PARTIES

1. A no stri'e prohibition in a C/A is applicable only to economic stri'es. An unfair labor


practice stri'e is not covered and wor'ers may go on stri'e based on the unfair labor practice despite the no-stri'e provision. *Master Iron Labor 3nion vs. 0LRC-

2. Is no>stri/e lause binding on t!e ne'l" erti#ied bargaining agent) 5o. #his is a
personal underta'ing of the old certified bargaining agent which does not bind the newly certified bargaining agent. *6enguet Consolidated vs. 6CI EE5s 3nion-

3. #here is no violation by the union of the no-stri'e clause if the wor' stoppage was not
initiated or supported by the union. *Azu ena$. #bout B0$CC (()s of a company sta!ed a mass wal*&out. ,he stri*e was sta!ed without prior notice and in violation of the no&stri*e clause. It is not however disputed that the company did not pay the salaries of the (()s for 2 months. In the e+ercise of his power of compulsory arbitration0 may the Secretary of ?abor declare the stri*e ille!al? Even on the assumption that the illegality of the stri'e is predicated on its violation of the lac' of notice of stri'e and the no-stri'e clause, still the automatic finding of the illegality of stri'e finds no authoritative support in the light of the attending circumstances. *6a us vs. OpleA.D EMPLOYMENT OF STRI9E BREA9ERS AND ROLE OF PEACE OFFICERS

DURIN

STRI9ES

Art. 2<1 : 7. 5o E" shall use or employ any stri'e-brea'er, nor shall any person be employed as a stri'e-brea'er. 6. 5o public official or EE including officers and personnel of the A2. or the .5., or armed person, shall bring in, introduce or escort any individual who see's to replace stri'ers in entering or leaving the premises of a stri'e are, or wor' in place of stri'ers. #he police force shall 'eep out of the pic'et lines unless actual violence or other criminal acts occur.

676 @rB Stri;e(%rea;er means any person who ! obstructs impedes, or interferes with /H ! force, violence, coercion threats, or intimidation A5H .EACE24L .&CKE#&5: /H EEs during any labor controversy affecting wages, hours or conditions of wor' or in the e%ercise of "S* or C/ .*L&CER1&L&#A"H personnel should station themselves outside a I,-meter radius from the pic'et line.

9owever, if the I, meter radius includes a public thoroughfare, they may station themselves at that thoroughfare to 'eep free flow of traffic REGUIREMENT FOR ARREST R DETENTION enera# R8#e: 3ith previous consultation with the Secretary of Labor ELce7tion+: 7B :rounds of national security and public peace 6B &n case of commission of crime BY(STANDER RULE: #he by-stander establishment, which is entitled to en0oin a labor stri'e or pic'et must be entirely different from, without any communication whatsoever to, either party to the dispute. Master Iron Labor 3nion v. 0LRC #he bringing in of CA.C*1 soldiers to the peaceful pic'et lines without any reported outbrea' of violence, was clearly in violation of the following prohibited activity under Article 6DC @dB of the Labor Code. As the Labor Arbiter himself found, no pervasive or widespread coercion or violence were perpetrated by the petitioners as to warrant the presence of the CA.C*1 soldiers in the pic'et lines. &n this regard, worth (uoting is the following e%cerpt of the decision in Shell *il 3or'ersF union vs. Shell Company of the .hilippines, Ltd., +A SC"A 6>D L7A>7M, which was decided by the Court under the old &ndustrial .eace Act but which e%cerpt still holds true8 E. . . 3hat is clearly within the law is the concerted activity of cessation of wor' in order that .. employer cease and desist from an unfair labor practice. #hat the law recogni$es as a right. #here is though a disapproval of the utili$ation of force to attain such an ob0ective. 2or implicit in the very concept of a legal order is the maintenance of peaceful ways. A stri'e otherwise valid, if violent in character, may be placed beyond the pale. Care is to be ta'en, however, especially where an unfair labor practice is involved, to avoid stamping it with illegality 0ust because it is tainted by such acts. #o avoid rendering illusory the recognition of the right to stri'e, responsibility in such a case should be individual and not collective. A different conclusion would be called for, of course, if the e%istence of force while the stri'e lasts is pervasive and widespread, consistently and deliberately resorted to as a matter of policy. &t could be reasonably concluded then that even if 0ustified as to ends, it becomes illegal because of the means employed.E Arrest and )etention of Law ?iolators ! Art. 6DD "e(uirement for arrest and detention. - E%cept on grounds of national security and public peace, no union members or union organi$ers may be arrested or detained for union activities without previous consultations with the Secretary of Labor and Employment. A.> IMPRO.ED OFFER BALLOTIN ?3at i+ =eant %A i=7ro$ed or red8ced o44er %a##otin&F

1. Stri;e ! &n an effort to settle a stri'e, the )*LE shall conduct a referendum by secret
balloting on the improved offer of the E" on or before the +,th day of the stri'e. 3hen at least a ma0ority of union members vote to accept the improved offer, the stri'ing wor'ers shall immediately return to wor' and the E" shall thereupon readmit them upon signing of the agreement.

2. Loc;o8t ! &n case of a loc'out, the )*LE shall also conduct a referendum by secret
balloting on the reduced offer of the union on or before the +,th day of the loc'out. 3hen at least a ma0ority of the board of directors or trustees or the partners holding the controlling interest in the case of partnership vote to accept the reduced offer, the

wor'ers shall immediately return to wor' and the E" shall thereupon readmit them upon signing of the agreement. @Art. 2<:B A.< PIC9ETIN ) SLO?DO?N AND OT'ER CONCERTED ACTI.ITIES A. DEFINITION De4ine 7ic;etin& ! 3al'ing or patrolling in the vicinity of a place of business involved in a labor dispute and, by word of mouth, banner or placard, underta'ing to inform the public concerning the dispute. .ic'eting includes stationing persons at the site of the labor dispute for the purpose of e%ercising coercion or intimidation on other. 9owever, the re(uirement of the law is that the pic'et must be a moving pic'et. *Azu enaI=7ortant 4ro= t3e Pro4e++or Di+ini2+ Inte&ration: 7B .ic'eting is not mentioned in the law of stri'es. 6B &t is a form of e%ercising the freedom of e%pression. +B &t cannot be en0oined, but it may be regulated. CB Stranger pic'eting is allowed. IB "45-A3AH S9*.8 employees can pic'et in new wor' place. De4inition ! Law )ictionary .ic'eting by members of a trade union or stri'ers, consists in posting members at all the approaches to the wor's struc' against for the purpose of reporting the wor'man going to or coming from the wor'sG and to use suc' influence as may be in their power to prevent the wor'man from accepting the wor' there. @/ouviers Law )ictionaryB Nat8re and P8r7o+e o4 Pic;et Line P8r7o+e: 7ublici'e labor dispute and see* sympathy Nat8re Insular Li#e Assuran e Co. Ltd. Emplo"ees Asso . v. Insular Li#e Insuran e Co. Ltd. #he heated altercations and occasional blows e%changed on the pic'et line do not affect or diminish the right to stri'e. .ersuasive on this point is the following commentary8 3e thin' it must be conceded that some disorder is unfortunately (uite usual in any e%tensive or long drawn out stri'e. A stri'e is essentially a battle waged with economic weapons. Engaged in it are human beings whose feelings are stirred to the depths. "ising passions call forth hot words. 9ot words lead to blows on the pic'et line. #he transformation from economic to physical combat by those engaged in the contest is difficult to prevent even when cool heads direct the fight. ?iolence of this nature, however much it is to be regretted, must have been in the contemplation of the Congress when it provided in Sec. 7+ of Act 6A 4SCA Sec. 7D+, that nothing therein should be construed so as to interfere with or impede or diminish in any way the right to stri'e. &f this were not so, the rights afforded to employees by the Act would indeed be illusory. 3e accordingly recently held that it was not intended by the Act that minor disorders of this nature would deprive a stri'er of the possibility of reinstatement.E @"epublic Steel Corp. v. 5. L. ". /., 7,> 26d C>6, cited in 1athews, Labor "elations and the Law, p. +><B 9ence the incident that occurred between 5er, et al. and "amon :arcia was but a necessary incident of the stri'e and should not be considered as a bar to reinstatement. #hus it has been held that8 RAist&fi!htin! between union and non&union employees in the midst of a stri*e is no bar to reinstatement.R Se urit" 6an/ Emplo"ees 3nion v. Se urit" 6an/ and <rust Co. #he union despite various #"*s and return to wor' orders by the court, still held their stri'e. #he union contends that the lower court 0udge committed grave abuse of discretion when he issued e% parte a restraining order prohibiting the wor'ers from staging or continuing a stri'e or

pic'eting Eof whatever 'ind or form, particularly, at plaintiffFs main office at Escolta, 1anila,E as well as any of its branches. &t is true that respondent /an' is in the unenviable position of an innocent bystander caught in the cross-fire. &t enlists oneFs sympathy, but it cannot with reason assert that its difficulties are in no way connected with a labor controversy. /esides, it is now too late to consider as lac'ing the elements of a labor dispute a situation where rival unions vie for supremacy. #his court has so indicated in at least two decisions, /ala(ue$on #rans. Labor 4nion v. 1u`o$-.alma and 1alayang 1anggagawa sa Esso v. Esso Standard Eastern. Even if it be granted, however, that the ordinary procedure provided by the "ules of Court could be relied upon, the last mentioned order of respondent =udge dated =anuary +, 7AD<, which modified what was issued by him on 5ovember 6, 7AD> en0oining Ethe defendants or their representatives from pic'eting of whatever 'ind or formE, still could not survive the 0urisdictional test. &t suffers from the fatal defect of prohibiting any pic'eting of whatever 'ind or form.E #his cannot be done consistently with the &ndustrial .eace Act, which categorically provides that no Court, Commission or /oard of the .hilippines Eshall have 0urisdiction e%cept as provided in section ten of this Act to issue any restraining order, temporary or permanent in0unction in any case involving or growing out of a labor dispute to prohibit any person or persons participating or interested in such dispute from doing whether singly or in concert, any of the following acts8 @IB :iving publicity to the e%istence of, or the facts involved in any labor dispute, whether by advertising, spea'ing, patrolling, or by any method not involving fraud or violenceG . 1oreover, this Court, in Calte% "efinery Association v. Lucero, made e%plicit its disapproval of an in0unction against stri'es, holding that Eno Court can issue a restraining order against union members who plan to hold a stri'e even if the same may appear to be illegal.E #hat is so in view of the unmista'able language employed in the &ndustrial .eace Act, with reference to stri'es. #he statutory command on pic'eting li'ewise calls for a similar declaration. #he obstacle that bars the /an' from attaining its ob0ective to bar all pic'eting is indeed too formidable to surmount. Also, even without such a categorical mandate e%pressed in the Act, the recognition of peaceful pic'eting as a constitutional right embraced in the freedom of e%pression dating from the 7AC> decision of 1ortera v. Court of &ndustrial "elations, precludes the issuance of such a blan'et prohibition as that imposed in the challenged order of respondent =udge of =anuary +, 7AD<. #his is not to say that pic'eting, li'e freedom of e%pression in general, has no limits. Certainly, to the e%tent that it is an instrument of coercion rather than of persuasion, it cannot rightfully be entitled to the protection associated with free speech. E(ually so, there can be no indiscriminate ban on the freedom to disseminate the facts of a labor dispute and to appeal for public sympathy, which is the aim of peaceful pic'eting, without a transgression of the Constitution, sufficient to oust a court of 0urisdiction, even on the assumption that it was originally possessed of such a competence, which was not so in this case as had been earlier made clear.

Mortera v. CIR #he prohibition should be understood to cover only illegal pic'eting, that is, pic'eting through the use of illegal means. .eaceful pic'eting cannot be prohibited. &t is part of the freedom of speech guaranteed by the Constitution. #herefore, the order of the Court of &ndustrial "elations prohibiting pic'eting must be understood to refer only to illegal pic'eting, that is, pic'eting through the use of illegal means.

%!il. Asso . o# Free Labor 3nions v. Cloribel I00OCE0< 6FS<A04ER R3LE AS 4ISC3SSE4 I0 <IIS CASE #he right to pic'et as a means of communicating the facts of a labor dispute is a phase of the freedom of speech guaranteed by the constitution. &f peacefully carried out, it can not be curtailed even in the absence of employer-employee relationship. #he right is, however, not an absolute one. 3hile peaceful pic'eting is entitled to protection as an e%ercise of free speech, we believe that courts are not without power to confine or locali$e the sphere of communication or the demonstration to the parties to the labor dispute, including those with related interest, and to insulate establishments or persons with no industrial connection or having interest totally foreign to the conte%t of the dispute. #hus the right may be regulated at the instance of third parties or Einnocent bystandersE if it appears that the inevitable result of its e%ercise is to create an impression that a labor dispute with which they have no connection or interest e%ists between them and the pic'eting union or constitute an invasion of their rights. &n one case, decided by this Court, we upheld a trial courtFs in0unction prohibiting the union from bloc'ing the entrance to a feed mill located within the compound of a flour mill with which the union had a dispute. Although sustained on a different ground, no connection was found between the two mills owned by two different corporations other than their being situated in the same premises. &t is to be noted that in the instances cited, peaceful pic'eting has not been totally banned but merely regulated. And in one American case, a pic'et by a labor union in front of a motion picture theater with which the union had a labor dispute was en0oined by the court from being e%tended in front of the main entrance of the building housing the theater wherein other stores operated by third persons were located. /. PIC9ETIN AND LIBEL LA?S

#he mere fact that the language employed by the pic'eters is far from being courteous and polite does not give rise to a cause for libel and damages. *%CI6 vs. %!ilnaban/ EE5s Assn.Q .ic'eting cannot be prohibited or en0oined but may be regulated. C. ER(EE RELATIONS'IP Absence of an E"-EE relationship does not ma'e pic'eting illegal. *4e Leon vs. 0L3). RESTRICTIONS

1. Art. 2<1 : 5o person engaged in pic'eting shall commit any act of violence, coercion or
intimidation or obstruct the free ingress to or egress from the E"s premises for lawful purposes, or obstruct public thoroughfares.

2. A pic'eting labor union has no right to prevent EEs of another company from getting in
and out of its rented premises, otherwise it will be held liable for damages against an innocent by-stander. *Li'a"'a" vs. %ermanent Con rete &or/ers 3nion-

3. .ic'eting as a concerted activity is sub0ect to the same limitations as stri'e, particularly


as to lawful purpose and lawful means. Li'e the freedom of e%pression in general, it has limits. #hus, to the e%tent that it is an instrument of coercion rather than of persuasion, it cannot rightfully be entitled to the protection associated with free speech. *Se urit" 6an/ EE5s 3nion vs. Se urit" 6an/Inno ent ,rd %art" Rule and Liabilities

Li'a"'a" %ublis!ing Co. v. %ermanent Con rete &or/ers 3nion 3e find and hold that there is no connection between the Liwayway .ublications, &nc. and the stri'ing 4nion, nor with the company against whom the stri'ers staged the stri'e, and neither are the acts of the driver of Liwayway its general manager, personnel manager, the man incharge of the bodega and other employees of Liwayway in reaching the bodega to obtain newsprint therefrom to feed and supply its publishing business interwoven with the labor dispute between the stri'ing 4nion and the .ermanent Concrete .roducts company. &f there is a connection between Liwayway publishing company and the .ermanent Concrete .roducts company, it is that both are situated in the same premises, which can hardly be considered as interwoven with the labor dispute pending in the Court of &ndustrial "elations between the stri'ers and their employer. #he right to pic'et as a means of communicating the facts of a labor dispute is a phase of the freedom of speech guaranteed by the constitution. &f peacefully carried out, it cannot be curtailed even in the absence of employer-employee relationship. #he right is, however, not an absolute one. 3hile peaceful pic'eting is entitled to protection as an e%ercise of free speech, we believe that courts are not without power to confine or locali$e the sphere of communication or the demonstration to the parties to the labor dispute, including those with related interest, and to insulate establishments or persons with no industrial connection or having interest totally foreign to the conte%t of the dispute. #hus, the right may be regulated at the instance of third parties or ^innocent bystandersF if it appears that the inevitable result of its e%ercise is to create an impression that a labor dispute with which they have no connection or interest e%ists between them and the pic'eting union or constitute an invasion of their rights. &n one case decided by this Court, we upheld a trial courtFs in0unction prohibiting the union from bloc'ing the entrance to a feed mill located within the compound of a flour mill with which the union had a dispute. Although sustained on a different ground, no connection was found other than their being situated in the same premises. &t is to be noted that in the instances cited, peaceful pic'eting has not been totally banned but merely regulated. And in one American case, a pic'et by a labor union in front of a motion picture theater with which the union had a labor dispute was en0oined by the court from being e%tended in front of the main entrance of the building housing the theater wherein other stores operated by third persons were located. E. PRO'IBITED ACTI.ITIES Art. 2<1 : 5o person shall obstruct, impede or interfere with by force, violence, coercion, threats or intimidation any peaceful pic'eting by EEs during any labor controversy or in the e%ercise of the right of self-organi$ation or collective bargaining, or shall aid or abet such obstruction or interference. 2. PO?ER OF COURTS TO CONFINE PIC9ETIN 3hile peaceful pic'eting is entitled to protection as an e%ercise of free speech, courts are not without power to confine or locali$e the sphere of communication or the demonstration to the parties to the labor dispute, including those with related interest, and to insulate establishments or persons with no industrial connection or having interest totally foreign to the conte%t of the dispute. *%AFL3 vs. CloribelSLO?DO?N

1. 4e#ine slo'do'n$ 1ethod by which ones EEs, without see'ing a complete stoppage
of wor', retard production and distribution in an effort to compel compliance by the E" with the labor demands made upon by him. *Azu ena-

2. Slowdown is considered inherently illicit and un0ustifiable because while the EEs
continue to wor' and remain at their positions and accept wages from them, they at the same time select what part of their allocated tas' they care to perform of their own

volitions or refuse openly or secretly to the E"s damage to the other wor'. *I6M vs. 0LRCBOYCOTT

1. 4e#ine bo" ott $ &t is the concerted refusal to patroni$e an E"s goods and services and
to persuade others to a li'e refusal. @&d.B

2. I+ a %oAcott #a>48#F EEs may lawfully e%ert economic pressure on their E" by means
of a boycott, provided they act peaceably and honestly. *Al antaraA.A CONSEGUENCES OF CONCERTED ACTIONS STRI9ERS RETENTION OR LOSS OF EMPLOYMENT Doe+ 7artici7ation in a +tri;e =ean #o++ o4 e=7#oA=ent 4or t3e >or;erF A mere participation of a wor'er in a lawful stri'e shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the E" during such lawful stri'e. @Art. 2<1B Io'ever( i# t!e stri/e is illegal.$ 7. #he union officer who 'nowingly participated in an illegal stri'eG and 6. Any wor'er or union officer who 'nowingly participates in the commission of illegal acts during a stri'e may be declared to have lost their employment status. An ordinary stri'ing wor'er cannot be terminated for mere participation in an illegal stri'e. #here must be proof that he committed illegal acts during a stri'e. *I0%OR< vs. 0LRC Anyone who commits an &LLE:AL AC# during a stri'e may be dismissed from employment, whether he is a member or an officer of the union and regardless of whether the stri'e itself is legal or not. A LA324L S#"&KE is a protected wor'ers activity - an EE on stri'e is still an EE - after the stri'e, he has the right to re-assume his 0ob 8n#e++ in the meantime he has lost it by committing certain illegal acts. 3hat the law prohibits is 5*# the hiring of temporary replacements /4# the use of stri'e brea'ers @troublema'ersB )* ;7, does not permit an E" to engage the services of a contractorRsubcontractor to provide substitute services in place of the stri'ing wor'ers. ?'O DECLARES LOSS OF EMPLOYMENT STATUS #he law grants the E" the option of declaring loss of employment status. @&d.B NO FINANCIAL ASSISTANCE TO DISMISSED STRI9ERS 2inancial assistance is not re(uired to be given to a wor'er who participated in an illegal stri'e. *C!ua vs. 0LRCSTRI9E ON OOD FAIT' BELIEF T'AT COMPANY COMMITTED UNFAIR LABOR PRACTICE Stri'ers who conducted an illegal stri'e on the good-faith belief that the company had committed unfair labor practice, which turns out to be false, do not forfeit their employment. #hey are entitled to reinstatement. *Ferrer vs. CIR-

STRI9E NOT MAR9ED ?IT'

OOD FAIT'

Stri'ers who conducted a stri'e which is illegal and not mar'ed with good faith forfeit their employment. *Relian e Suret" vs. 0LRCAPPLICATION OF T'E %ARI>4ELIC<O RULE I+ t3e pari>deli to r8#e a77#ica%#e in +tri;e+ and #oc;o8t+F Hes. 3hen the parties are in pari delicto ! the EEs having staged an illegal stri'e and the E" having declared an illegal loc'out ! such situation warrants the restoration of the status 6uo ante and brining bac' the parties to their respective positions before the illegal stri'e and illegal loc'out through reinstatement, without bac'wages, of the dismissed EEs. *%!ilippine Inter>Fas!ion vs. 0LRCBAC9?A ES

1. &n an economic stri'e, the stri'ers are not entitled to bac'wages on the principle that a
fair days wage accrues only for a fair days labor. @SMB $+. NLUB 2or an unfair labor practice stri'e, the right of the wor'ers to receive bac'pay depends on whether they are voluntary or involuntary stri'ers. &f they are involuntary stri'ers, they are entitled to bac'pay. *Ma leod vs. %rogressive Federation o# Labor- 9owever, when they are voluntary stri'ers, that is, they were not discriminatorily dismissed by the E", then they are generally not entitled to bac'pay, e%cept when they voluntary offer to return to wor' and the E" refuses to readmit them. *Crom'ell EE5s Assn. vs. CIR2. #re (()s who are unable to wor* by reason of a loc*out validly declared by the (2 entitled to wa!es correspondin! to the period of the loc*out? No. #he refusal of the E" to furnish wor' is lawful. And since the EEs did not render any service, they should not get paidG this in accordance with the no wor' no pay rule. *Al antaraIN.OLUNTARY STRI9ERS /ULP STRI9ES0 )iscriminatorily dismissed EEs receive bac'pay from the date of the act of discrimination, that is, from the day of their illegal discharge. .OLUNTARY STRI9ERS /ULP STRI9ES0 EEs who struc' as a voluntary act of protest against what they considered 4L. of the company are not entitled to bac'wages. #he stoppage of their wor' was not the direct conse(uence of the companys 4L.. 5evertheless, even after the court has made a finding of 4L., it has the discretion to determine whether or not to grant bac' pay. ER2S RI 'T TO 'IRE REPLACEMENT DURIN STRI9E

4is uss t!e prin iples governing t!e !iring o# 'or/er repla ements during a stri/e) )uring the pendency of an economic stri'e, the E" may hire replacements on a permanent basis and is not bound to discharge such permanent replacements in the event that the stri'ers decide to resume their employment. *Consolidated Labor Assn. vs. Marsman- *n the other hand, while replacements may also be hired by the E" to ta'e the places left vacant by the EEs engaged in unfair labor practice stri'e, such replacements are not permanent and the E" is under a duty to dismiss them as soon as the stri'ers re(uest reinstatement in their previous position. *Insular Li#e EE5s Assn. vs. Insular Li#eDAMA ES 4nion officers may not be vicariously held liable for illegal act of stri'ers. #he rule of vicarious liability no longer applies. *6enguet Consolidated vs. 6CI EE5s Assn.-

?'O SUFFERS BURDEN OF ECONOMIC LOSSF

7. &n a 4L. Stri'e a. &f the wor'er was the direct victim of the 4L.8 /ac'pay, the employer suffers economic loss. b. &f the stri'er was not the direct victim and only voluntarily 0oined the stri'e8 no bac'pay Cro'n'ell Emplo"ees and Laborers 3nion v. CIR #here are two types of employees involved in unfair labor practice cases should be distinguished, namely, those who were discriminatorily dismissed for union activities and those who voluntarily went on stri'e even if it is in protest of an unfair labor practice. /oth types of employees are entitled to reinstatement. 2rom the rule that employees who stri'e because of unfair labor practice are entitled to reinstatement, however, must be e%cepted those who, although discriminatorily discharged, must nevertheless be denied reinstatement because of @7B unlawful conduct or @6B because of violence. )iscriminatorily dismissed employees receive bac' pay from the date of the act of discrimination, that is, from the day of their discharge. 9owever those employees who voluntarily went on stri'e even if in protest against what they considered unfair labor practices of the company are not entitled to bac'pay. #he stoppage of their wor' was not the direct conse(uence of the companyFs unfair labor practice. 9ence, their economic loss should not be shifted to the employer. Consolidated Labor Asso iation v. Marsman &n an economic stri'e, the stri'ers are not entitled to bac'pay, since the employer should get the e(uivalent dayFs wor' for what he pays his employees. )uring the time that the stri'e was an economic one, complainants had no right to bac' pay. #he &ndustrial Court could not have made a finding of unfair labor practice with respect to such time, as none had so far been committed. #his being an unfair labor practice case, it cannot, therefore, order reinstatement much less bac' pay for that period. SSS v. SSS Supervisors 3nion 3e find for SSS based on the e(uitable tenet of a Efair dayFs wage for a fair dayFs labor.E E#he age-old rule governing the relation between labor and capital or management and employee is that of a ^fair dayFs wage for a fair dayFs labor.F &f there is no wor' performed by the employee there can be no wage or pay, unless of course the laborer was able, willing and ready to wor' but was illegally loc'ed out, dismissed or suspended. &t is hardly fair or 0ust for an employee or laborer to fight or litigate against his employer on the employerFs time.E &n this case, the failure to wor' on the part of the members of respondent 4nion was due to circumstances not attributable to themselves. /ut neither should the burden of the economic loss suffered by them be shifted to their employer, the SSS, which was e(ually faultless, considering that the situation was not a direct conse(uence of the employerFs loc'out or unfair labor practice. 4nder the circumstances, it is but fair that each party must bear his own loss.E Considering, therefore, that the parties had no hand or participation in the situation they were in, and that the stoppage of the wor' was not the direct conse(uence of the companyFs loc'out or unfair labor practice, ^the economic loss should not be shifted to the employer.F =ustice and e(uity demand that each must have to bear its own loss, thus placing the parties in e(ual footing where none should profit from the other there being no fault of either.E %!il. Inter>Fas!ion v. 0LRC #he findings show that both petitioner and the 77C stri'ers are in pari delicto, a situation which warrants the maintenance of the status (uo. #his means that the contending parties must be

brought bac' to their respective positions before the controversyG that is, before the stri'e. #herefore, the order reinstating the 77C employees is proper. 3ith such restoration of the status (uo ante it necessarily follows, as li'ewise submitted by the Solicitor :eneral, that the petition must be granted insofar as it see's the setting aside of the award of three monthsF bac'wages to the 77C employees ordered reinstated on the basis of the general rule that stri'ers are not entitled to bac'wages @with some e%ceptions not herein applicable, such as where the employer is guilty of oppression and union-busting activities and stri'ers ordered reinstated are denied such reinstatement and therefore are declared entitled to bac'wages from the date of such denialB. 1ore so, is the principle of Eno wor', no payE applicable to the case at bar, in view of the undisputed finding of illegality of the stri'e.

Section 1D. REMEDIES


?'AT ARE T'E DIFFERENT REMEDIES A.AILABLE IN LABOR DISPUTESF

1.

rie$ance 7roced8re ! &n ad0ustment of complaint following steps prescribed in the C/A or company policy. labor, at their re(uest or otherwise, during a labor dispute or in collective bargaining conferences, and by cooling tempers, aids in reaching an agreement.

2. Conci#iation ! .rocess where a disinterested +rd party meets with management and

3. Mediation ! A +rd party studies each side of the dispute then ma'es proposal for the
disputants to consider, but a mediator cannot render an award.

4. En4orce=ent or co=7#iance order ! An act of the Secretary of Labor in the e%ercise of


his visitorial or administrative authority to enforce labor laws, polices, plans, programs, rules and regulations.

5. Certi4ication o4 %ar&ainin& re7re+entati$e+ ! )etermination of which union shall


represent EEs in collective bargaining. #his is handled by 1ed-Arbiters of )*LE.

6. Ar%itration ! #he submission of a dispute to an impartial determination on the basis of


impartial evidence and arguments of the parties.

7. A++8=7tion o4 Q8ri+diction ! An authority vested by law to the Secretary of Labor or


the .resident to decide a dispute causing or li'ely to cause a stri'e or loc'out in an industry indispensable to the national interest.

8. Certi4ication to NLRC ! An action of the Secretary of Labor empowering the 5L"C to


compulsorily arbitrate a dispute causing or li'ely to cause a stri'e or loc'out in an industry indispensable to the national interest.

9. InQ8nction ! An e%traordinary remedy and is not favored in labor law. As a general law,
an in0unction or a restraining order to prevent or stop the doing of an act is avoided in resolving a labor dispute because the state policy and aim is to encourage the parties to use the non-0udicial processes of negotiation and compromise, mediation and arbitration.

10. M8dicia# action ! Complaint with regular court in cases falling under its 0urisdiction i.e.
criminal case of unfair labor practice.

11. A77ea# ! .rocess by which an order, decision or award is elevated to a higher authority,
on specified grounds, so that the order, decision or award may be modified or set aside and a new one issued.

12. M8dicia# re$ie> ! 5o law allows appeal from decision of the Secretary of Labor or of the
5L"C, or of a voluntary arbitrator. &n these cases, the special civil action of certiorari, prohibition and mandamus may be lodged with the Supreme Court.

13. Co=7ro=i+e +ett#e=ent ! &n any stage of these settlement processes, the labor
dispute may be resolved by the parties through a compromise agreement, provided the agreement is freely entered into and is not contrary to law, moral or public policy. *Azu ena DUE PROCESS Sec. C "ule I of the 5ew "ules of .rocedure of the 5L"C vests upon the Labor arbiter the discretion to determine the need for a formal trial or hearing. o 9e may at his discretion, merely re(uire the parties to submit their respective position papersRmemoranda and decide on the basis thereof without resorting to technicalities.

Labor laws mandate the speedy disposition of cases with the lease attention to technicalities but without sacrificing the fundamental re(uisites of due process.

?3at ca+e+ 4a## 8nder t3e eLc#8+i$e and ori&ina# Q8ri+diction o4 #a%or ar%iter+F
?abor arbiters shall have e+clusive and ori!inal /urisdiction to hear and decide within 5C wor*in! days after submission of the case by the parties for decision without e+tension the followin! cases involvin! all wor*ers0 whether a!ricultural or non&a!ricultural : 7. 4nfair labor practices. 6. #ermination disputes. +. &f accompanied with a claim for reinstatement, those cases that wor'ers may file involving wages, rates of pay, hours of wor' and other terms and conditions of employment. C. Claims for actual, moral and e%emplary and other forms of damages arising form the E"-EE relations. 5. Cases arising from any violation of Art. 2<1 of this Code, including (uestions involving the legality of stri'es and loc'outs. D. E%cept claims for EEs compensation, social security, medicare and maternity benefits, all other claims arising from E"-EE relations, including those of persons in domestic or household service, involving an amount e%ceeding .I,,,,.,, whether or not accompanied with a claim for reinstatement.

Doe+ +er$ice o4 notice o4 3earin& 87on re+7ondent con4er Q8ri+diction o4 t3e


4or=erF 5o. 5otices of hearings are not summonses. &n the absence of service of summons or a valid waiver thereof, the hearings and 0udgment rendered by the Labor Arbiter are null and void. *Lar/ins vs. 0LRC-

Do #a%or ar%iter+ 3a$e Q8ri+diction to 3ear and decide c#ai=+ 4or da=a&e+ ari+in&
4ro= 8n4air #a%or 7ractice+F Hes. #he civil aspects of all cases involving unfair labor practices, which may include claims for actual, moral, e%emplary and other forms of damages, attorneys fees and other affirmative reliefs, shall be under the 0urisdiction of the labor arbiters. *Art. 291-

Doe+ t3e Re&iona# Director o4 t3e DOLE 3a$e Q8ri+diction to 3ear and decide
=oneA c#ai=+ o4 >or;er+F Hes. 9e is empowered through summary procedure, to hear money claims and benefits, including legal interest, owing to a househelper provided the complaint does not include a claim for reinstatement and the aggregate money claims of each EE or househelper does not e%ceed I,,,,. *Art. 72:-

'o> are di+78te+ ari+in& 4ro= >a&e di+tortion+ +ett#edF 3hen there is a C/A,
through the grievance procedure and, if it remains unresolved, through voluntary arbitration. 3hen there is no C/A, the dispute shall be settled through the 5C1/ and, if it remains unresolved after 7, calendar days of conciliation, shall be referred to the appropriate branch of the 5L"C. *Art. 729-

E%pulsion of union members is an &5#"A-45&*5 affair /4# it becomes a


termination dispute when the company dismisses the wor'ersOthe 0urisdiction is with the LABOR ARBITER.

MURISDICTION BY ESTOPPEL: A party to a case who participated actively in


the litigation before an office cannot subse(uently (uestion the 0urisdiction of that office.

The appellate 0urisdiction of the S*LE is limited only to a review of cancellation


proceedings decided by the /L" in the e%ercise of its e%clusive and original 0urisdiction @not in the e%ercise of /L" appellate 0urisdictionB, Ca+e+ not 4a##in& 8nder t3e Q8ri+diction o4 #a%or ar%iter+:

1. Civil action to collect sum of money owed by the EE to the E". *Beorg Bort=a!m vs.
Isnani-

2. Action for damages for breach of contractual stipulations. *4ai>I !i Ele tronis vs.
Hillarama-

3. #ortious acts by the president of a company against EEs. *Medina vs. 6artolome4. "eplevin case to recover fishing vessel from stri'ing crew members. *6asa"a vs.
Militante-

5. Civil case to annul the public auction sale of several properties of the E" used to pay
liabilities to the EEs on the ground that the properties were owned by + rd parties. *Manliguez vs. CA- &n contrast to the %u an vs. 6engzon case, what was being (uestioned was not the writ of e%ecutions issued by the )*LE but the ownership over the property in (uestion. *Al antara-

6. Suit filed by an independent contractor. *Cabe vs. <umang7. &ntra-company disputes. *4" vs. 0LRC Ca+e+ 4a##in& 8nder t3e Q8ri+diction o4 t3e #a%or ar%iter+:

1. Legality of stri'es and loc'outs. *Sama!ang Manggaga'a ng Libert" Commer ial


Center vs. %imentel-

2. Suit for damages from pic'eting that accompany a stri'e. *0FL vs. Eisma3. Complaint arising from implementation of union security clause. *San"o %!ilippines
&or/ers 3nion vs. Canizares MaA an i##e&a##A di+=i++ed EE +ti## 4i#e a ci$i# ca+e 4or tort a&ain+t t3e ER i4 3e >a+ a#readA a>arded da=a&e+ in t3e i##e&a# di+=i++a# ca+e t3at 3e 4i#ed >it3 t3e #a%or ar%iterF 5o. #he 0udgment of the labor arbiter granting the illegally dismissed EE separated pay operated as a bar to his subse(uent action for a tort against the E" if he was already awarded damages in the illegally dismissed EE separation pay operated as a bar to his subse(uent action for the recovery of damages before the regular court under the doctrine of res /udicata. *%rimero vs. IAC-

In 3i+ co=7#aint >it3 t3e #a%or ar%iter 4or i##e&a# di+=i++a#) A +o8&3t 7aA=ent 4or
3o#idaA 7aA and t3e 1"t3 =ont3 7aA =aA A %e a>arded 1"t3 =ont3 7aA and 3o#idaA 7aA e$en i4 3e did not 7ro$e t3at 3e >a+ 7aid t3e+e %ene4it+F Hes. #he claimants allegation of these benefits is a negative allegation which need not be supported by evidence unless it is an essential part of the cause of action. #he burden of proving that payment of said benefits have been made rests with the E". *Seaborne Carriers vs. 0LRC-

MaA t3e #a%or ar%iter increa+e t3e ori&ina# a>ard it =ade a4ter it+ deci+ion >a+
rendered 4ina# and eLec8torA %A a di+=i++a# o4 t3e NLRC o4 an a77ea# >it3 re+7ect to t3e +aid ca+eF Hes. #he bac'wages merely correspond to the period of dismissal when the case was originally heard by the labor arbiter. "ecomputation is necessary to arrive at a 0ust and proper determination of the monetary awards. *Industrial <imber vs. 0LRC-

MaA t3e #a%or ar%iter adQ8dicate on c#ai=+ not a##e&ed in t3e co=7#aintF
Hes, provided the claims are made in the complaints position paper. /ut claims for wage differentials are not made in the complaint or in the position paper cannot be passed upon. *46% vs. 0LRC-

MaA t3e #a%or ar%iter decide t3e ca+e on t3e %a+i+ o4 a +877#e=enta# 7o+ition
7a7er +8%=itted a4ter t3e 7artie+ 3a$e 4i#ed t3eir 7o+ition 7a7er+ and a&reed to con+ider t3e ca+e +8%=itted 4or t3e deci+ionF 5o. After submitting the case for decision, the parties shall not be allowed to allege facts not referred to and any cause of action not included in the complaint or position papers, affidavits and other documents. *Manebo vs. 0LRC-

Doe+ t3e #a%or ar%iter 3a$e Q8ri+diction o$er a c#ai= o4 an EE o4 t3e SEAFDEC(
AGD an internationa# or&ani5ationF 5o. /eing an international organi$ation SEA2)EC-AW) en0oys functional independence and freedom from control of the state in whose territory its office is located. *SEAF4EC>AE4 vs. 0LRC-

'o> a%o8t MUSMA F 5o. #he act of hiring cannot be considered a waiver of the
foreign states immunity from suit. *J3SMAB vs. 0LRC-

Doe+ t3e Med(Ar%iter 3a$e Q8ri+diction o$er inter(8nion con4#ict+F Hes. #he
decision of the 1ed-Arbiter is appealable to the Secretary of Labor. *%epsi Cola Sales and Advertising 3nion vs. Se retar" o# Labor-

MaA a #e&a##A di+=i++ed EE %e entit#ed to recei$e =ora# and eLe=7#arA da=a&e+F


Hes, provided the dismissal is effected in an anti-social and oppressive manner. *Euisaba vs. Sta. Ines Heneer and %l"'ood ?3at =atter+ 4a##+ 8nder t3e eLc#8+i$e and ori&ina# Q8ri+diction o4 $o#8ntarA ar%itrator+ 7ro$ided 4or in a CBAF 4nresolved grievances arising from the8 7. &nterpretation or implementation of the C/A and those arising from the interpretation of enforcement of company personnel policiesG 6. &nterpretation and enforcement of company personnel policiesG and

3. All other disputes including unfair labor practices and bargaining deadloc's
submitted to them by agreement of the parties. *Art. 2+2 Labor cases involving companies that are under receivership should be suspended accordingly. ?it3in >3at 7eriod +3o8#d a co=7#aint 4or 8n4air #a%or 7ractice) i##e&a# di+=i++a# and =oneA c#ai=+ %e 4i#ed >it3 t3e #a%or ar%iter+F

1. Un4air #a%or 7ractice ! 7 year from accrual thereof *Art. 2:82. I##e&a# di+=i++a# ! C years from accrual thereof *Art. 779+( 0CC3. MoneA c#ai=+ ! + years form the time the cause of actions accrues *Art. 2:7-

i$e t3e e44ect o4 t3e 7endencA o4 a =oneA c#ai= %e4ore t3e #a%or ar%iter on cri=ina# and ci$i# action+ ari+in& 4ro= or %a+ed on t3e +a=e ca8+e o4 actionF 1oney claims shall be filed independently of the criminal action that may be instituted in the proper courts. .ending the final determination of the merits of the money claims, no civil action arising from the same cause of action shall be filed with any court. *Art. 2:2-

Are t3e tec3nica# r8#e+ o4 e$idence 4o##o>ed in 7roceedin&+ %e4ore #a%or ar%iter+F
5o. *Art. 227-

MaA non(#a>Aer+ a77ear %e4ore #a%or ar%iter+F 5on lawyers may appear before labor
arbiters only if they represent themselves or their organi$ations or members thereof. *Art. 222 ?3at are t3e &ro8nd+ +o t3at deci+ion+ o4 #a%or ar%iter+ are a77ea#a%#eF 8ecisions of labor arbiters are appealable within BC calendar days to the -?2> on the followin! !rounds: 1. &f there is prima #a ie evidence of abuse of discretion on the part of the labor arbiter. 6. &f the decision, order or award was secured through fraud or coercion, including graft and corruption. +. &f made purely on (uestions of law.

4. &f serious errors in the findings of facts are raised which would cause grave or
irreparable damage or in0ury to the appellant. *Art. 22,-

'o> i+ a77ea# 7er4ectedF 2iling by the appellant with the labor arbiter his
memorandum of appeal, copy furnished the appellee, and the payment of the appeal fee within 7, calendar days. *Hir>Jen S!ipping vs. 0LRC-

I+ t3e NLRC or #a%or ar%iter e=7o>ered to cond8ct an oc8#ar in+7ectionF Hes, for
any information or date concerning any matter or (uestion relative to the ob0ect of the investigation. *Art. 27:-

MaA t3e NLRC order t3e rein+tate=ent o4 >or;er+ >3o did not a77ea# 4ro= a
deci+ion o4 t3e #a%or ar%iter orderin& 7aA=ent o4 +e7aration 7aA in #ie8 o4 rein+tate=ent+F 5o. An appellee who has not himself appealed cannot obtained from the appellate court any affirmative relief other than those granted in the decision of the court below. *SMI Fis! Industries vs. 0LRC-

I+ t3e deci+ion o4 t3e NLRC a77ea#a%#e to t3e SecretarA o4 La%orJ 5o. )ecisions of
the 5L"C may only be (uestioned before the Supreme Court by means of a petition for certiorari. *Al antara-

MaA t3e NLRC con+ider e$idence +8%=itted 4or t3e 4ir+t ti=e on a77ea#F Hes.
*6ristol Laboratories vs. 0LRC-

Doe+ t3e NLRC eLerci+e anA ori&ina# Q8ri+dictionF Hes. &n cases of labor disputes
certified to it by the Secretary of Labor for compulsory arbitration and it can also entertain petitions for in0unction. @&d.B

I+ PD 1:D*) t3e 9atar8n&an& Pa=%aran&aA La>) a77#ica%#e to #a%or ca+e+F 5o.


*Monto"a vs. Es a"o-

i$e t3e +co7e o4 $i+itoria# 7o>er+ o4 t3e SecretarA o4 La%or and E=7#oA=ent and re&iona# director+ 8nder Art. 12* o4 t3e La%or CodeF #he visitorial power provided for under Art. 12* is confined to chec'ing compliance with labor standard laws. 9owever, this does not include ad0udication of money claims clearly within the ambit of the labor arbiters authority under Art. 21H of the Labor Code. *Ong vs. %arel-

I4 a 7artA +8%=it+ to t3e Q8ri+diction o4 a #a%or tri%8na# and o%tain+ an 8n4a$ora%#e Q8d&=ent) can #ater on E8e+tion t3e Q8ri+diction o4 t3e +aid tri%8na#F 5o. 3hen a party has voluntarily submitted to the 0urisdiction of a court tribunal, he cannot later on, if he gets an unfavorable 0udgment adopt an inconsistent posture and attac' the latters 0urisdiction. *<i=am vs. Sibong!ano" I+ t3e rein+tate=ent a+7ect o4 t3e deci+ion o4 t3e #a%or ar%iter +e#4(eLec8torA e$en 7endin& a77ea#F 5o. #here must be a writ of e%ecution which may be issued by the Labor Arbiter motu proprio or on motion of an interested party. *Marana' Iotel vs. 0LRC Do co8rt+ or ad=ini+trati$e %odie+ 3a$e t3e 7o>er to +et or 4iL rate+ o4 7aA) >a&e+) 3o8r+ o4 >or; and ot3er ter=+ and condition+ o4 e=7#oA=entF As a rule, courts and administrative bodies cannot fi% the terms and conditions of employment because what is being promoted is collective bargaining. *Al antara-

Section 11. C'OICE GUESTIONS ON PUBLIC SECTOR EE2S


1. M) a +87er$i+or o4 Ca+ino Fi#i7ino >a+ di+=i++ed %A PA COR d8e to #o++ o4
con4idence. 'e 4i#ed a ca+e 4or da=a&e+ >it3 t3e RTC. PA COR 4i#ed a =otion to di+=i++ on &ro8nd o4 #ac; o4 Q8ri+diction o4 t3e RTC to 3ear t3eca+e. I+ t3e &ro8nd $a#idF Hes. #he case involving whether = was illegally dismissed falls under the 0urisdiction of the 1erits Systems .rotection /oard and the Civil Service Commission. #he claim for damages was merely incidental to the illegal dismissal. *%ABCOR vs. CA-

2. I+ t3e ca+e not co&ni5a%#e %A t3e #a%or ar%iterF 5o. .A:C*" is a :*CC with an
original charter. @&d.B

3. ?3at i+

OCC >it3 ori&ina# c3arterF &t is a :*CC with a legislative charter i.e. .A:C*" and )/.. *Al antara#he terms and conditions of government EEs are fi%ed by law and thus they are prohibited from using the normal instruments available to private sector EEs. 9owever, under Sec. 7+ of E* 7<,, the terms and conditions or improvements thereof not fi%ed by law may be the sub0ect of negotiations between duly recogni$ed EEs organi$ations and appropriate government authorities. @&d.B

4. MaA EE2+ o4 t3e &o$ern=ent &o on +tri;e and =aA t3e #atter dec#are a #oc;o8tF 5o.

5. A++8=in& t3at EE2+ o4

OCC2+ >it3 ori&ina# c3arter+ cannot &o on +tri;e) =aA t3eA ne$ert3e#e++ 4ro= 8nion+ and 7etition 4or certi4ication e#ectionF Hes. Although they are covered by civil service laws, they are guaranteed the right to self-organi$ation. 4nder E* 7<,, where there are two or more duly registered EEs organi$ations in the appropriate bargaining unit, the /L" shall, upon petition order the conduct of certification election and certify the winner as the e%clusive representative of the ran'-and-file EEs in the said organi$ational unit. *<3%AS vs. 0IAcon$er&ed at Li>a+an& Boni4acio to 7rote+t t3e non(7aA=ent o4 t3eir %ene4it+. I+ t3e =a++ action #a>48#F 5o. EEs in the public service do not have the right to stri'e. *M%S<A vs. Laguio-

6. So=e *DD 78%#ic +c3oo# teac3er+ did not cond8ct t3eir c#a++e+ and in+tead

H. T3e N'C i+ 1DDN &o$ern=ent(o>ned or&ani5ed in accordance >it3 EO "CC) t3e Uni4or= C3arter o4 o$ern=ent Cor7oration+. Are it+ EE2+ co$ered %A t3e 7ro$i+ion+ o4 t3e La%or CodeF Hes. #he 59C is incorporated under and pursuant to a general legislation and not by an act of Congress or by special law. *<3%AS vs. 0IC-

8. #he .ublic Sector 1anagement Council has 0urisdiction to hear charges of unfair labor
practice filed by a government EE against their E". &n deciding the unfair labor practice charge, the .SL1C may also rule on the complainants dismissal if the two issues are unavoidably lin'ed. *%LM vs. CSCQ notes R LIBERAL CONSTRUCTION OF PROCEDURAL RULES MAY BE APPLIED ONLY ON T'E FF : 73here a rigid application will cause miscarriage of 0ustice 63here the interest of substantial 0ustice will be served +3here the resolution of the motion is addressed in sole to the sound and 0udicious discretion of the court C3here the in0ustice to the adverse party is not commensurate with the degree of his thougtlessness )ismissal of appeals bases solely on technicality is frowned upon.

Strict rules on evidence should not be applicable in wor'mens compensation cases .robability not ultimate proofRdegree of certainty is the test of proof in compensation proceedings An EE who refuses to submit any evidence is deemed to admit her guilt.

5otice to counsel is notice to party, thus appeal out of time cannot be entertained, mista'es of lawyer bind the client .erfection of an appeal within the reglementary period is not only mandatory but also 0urisdictional #he posting of a cash or surety bond by the E" is an indispensable re(uirement in order for the E" appeal may be perfected #he order of reinstatement by the LA is not stayed by the filing of an appeal, such order is immediately e%ecutory.