UNIVERSITY OF SAN

CARLOS
SCHOOL OF LAW
CEBU CITY

THE
LABOR CODE
With
Comments
and Cases
Volume II-A
LABOR
RELATIONS

Relevant
Points
Compiled
-EH 302SY 2014-2015

1) Ang 181-195

Title IV Labor Organization

Chapter I: Registration and Cancellation
Art. 239-243
Workers right to self-organization is guaranteed under Article XIII of the 1987 Constitution. The
right includes the right to form, join or assist labor organization.
See IRR for definitions of Labor Organization(LO), Legitimate Labor Organizations (LLO), Union,
Exclusive Bargaining Representative (ERB), Workers Association and Legitimate Workers
Association.
Not every union is legitimate; only those properly registered are considered as LLO. Nonregistration does not mean it is illegitimate, it simply is unregistered and has no legal
personality. It exists legally but does not possess the rights of an LLO inter alia, it cannot
petition for Certification Election, Request preventive mediation, or hold a legal strike.
Not every LLO is the EBR. An EBR has to be an LLO, but not every LLO is an EBR. To be an ERB,
union has to be duly registered and has to successfully go through the process of recognition or
election.
2 Broad Purposes of Labor Organizations
An LO is not always a union; it may be an association of employees. The LOs purpose is not only
nor necessarily for collective bargaining but also dealing with employees concerning terms
and conditions of employment. Both these purposes are concerned with terms and conditions.
They are different since the former is a right acquired by an LLO while the latter is a generic
description of interaction between employer and employees that may be exercised even if the
employees group is not registered with DOLE.
In the US, the NLRB has ruled that dealing with is a pattern or practice in which a group of
employees, make proposals to management, and management responds to those proposals by
acceptance or rejection by word or deed. An in-house committee, employees benefits and policy
review committees, safety committee and brainstorming groups have been held to be dealing
with.
Along this line, the Labor-Management Council (LMC) carries the character of n LO. Since they are
labor organization, they are covered by Articles 256-258 but cannot collectively bargain nor
stage a strike.
Labor-Management Cooperation Programs as well as Labor-Management Committees, Workers
Associations are like LMC which are labor organizations but not unions.
Classifications of LO
At the national level, they may be classified:
a
b

National Union/Federation See IRR for definition Ex. Federation of Free Workers (FFW)
Industry Union not defined in IRR. Azucena means any group of LLO operating within
an identified industry, organized for collective bargaining or dealing with employers
concerning terms and conditions of employment within an industry or for participating
in the formulation of social and employment policies, standards and programs in such
industry, duly registered with the Department.
Trade Union Center group of national union/federation organized for the mutual aid
and protection of its member, for assisting them in collective bargaining, or for
participating in the formulation of social and employment policies, standards and
programs.
Alliance aggregation of unions existing in one line of industry or in a conglomerate, a
group of franchisees, a geographical are or an industrial center. Unions or federations
may form an alliance to help one another for a particular purpose. Each member union
retain its own organization, structure and independence. An alliance cannot
represent its member unions in CBA negotiations.

Company-union LO which, in whole or in part, is employer-controlled or employerdominated. It is prohibited by the Labor Code (art. 258d). Not to be confused with an
inside union, which is a union comprised exclusively of employees of a given
employer/s but is free from employer-influence and thus is a bona fide labor union.

At the enterprise level

a

Independent created by independent registration. See IRR for definition. Its legal
personality is not derived from a federation. It may affiliate with a federation, then, it
may also be called an affiliate.
Chapter/Local/Chartered Local created by chartering. See IRR as amended by DO 40B-03 (Fozs book is not updated) for definition Chartered Local, to wit:
" refers to a labor organization in the private sector operating at the enterprise level
that acquired legal personality through registration with the Regional Office in
accordance with Rule III, Section 2-E of these Rules.
Its legal personality is derived from a federation but it may subsequently register itself
independently.

The creation of enterprise-level unions was brought about by RA9481 also known as An Act
Strengthening the Workers Constitutional Right to Self-Orgnaization which lapsed into law on
May 25, 2007. Some of the changes brought about by the law are:
a
b

c
d
e

i
j

k
l

No required number 20 percent requirement applies only to independent registration

and not to chartering.
Tentative Legal Personality Once issued a charter, Chartered Local has personality to
file a petition for certification election (CE). All other rights of the chartered local are
acquired by submitting the necessary documents:
a charter certificate
b names and addresses of officers and members of union (certified under oath by
Secretary or Treasurer and attested by the president)
c constitution and by-laws(CBL) of the union which can be the same as that of the
federation(certified under oath by Secretary or Treasurer and attested by the
president)
Specific Ground for Cancellation of Union Registration
Petition for CE is not prevented by a petition to cancel union registration
The Grounds for Cancellation of Union Registration
a Any falsehood about the CBL
b Any falsehood about the election of officers
c Voluntary Dissolution
Cancellation by 2/3 vote of the membership to dissolve their organization requires
subsequent submission by the board of the organization, attested by the president, of
an application to cancel.
Reportorial Requirements:
a Adoption or amendments to CBL
b Election of officers, with list of voters to be submitted in 30 days
c Annual financial reports within 30 days from close of fiscal year
d Annual list of members
Note: Non-submission of any above is no longer a ground to cancel registration
but erring officer may be punished even by expulsion.
Affiliation with Same Federation Supervisors union and rank and file union may
affiliate with same federation. It abandons prohibition previously laid down by Supreme
Court (SC).
Commingling commingling of supervisors and rank and file in one union is not a
ground to cancel registration. Excludible member is automatically deemed removed.
Non-disclosure of identity If petition for CE in an organized enterprise is filed by the
federation in behalf of chapter, the federation cannot be required to identify the
chapters officers or members.
Non-disclosure even in unionized company letter j. above applies even in an
enterprise without yet a union as bargaining agent.
Employer, a bystander employer has no right to oppose a petition for CE.
Participation is limited to being informed and to be required to submit a list of
employees if CE will be held.

Registration
Not every union is legitimate; only those properly registered are considered as LLO. Nonregistration does not mean it is illegitimate, it simply is unregistered and has no legal
personality. It exists legally but does not possess the rights of an LLO inter alia, it cannot
petition for Certification Election, Request preventive mediation, or hold a legal strike.
In PAFLU vs Secretary of Labor, the legality of the requirement to register labor unions was
upheld. The Supreme Court said the registration required is not a limitation to the right of
assembly or association. It is merely a sine qua non condition for the acquisition of legal
personality and the possession of the rights and privileges granted by law to LLOs. Such
requirement is a valid exercise of police power, because the activities LOs are engaged in affect
public interest which should be protected.
Applications for registrations shall be filed with:
a
b

For independent labor unions, chartered locals and workers association Regional Office
where applicant principally resides
For federations, national unions or workers association operating in more than one region
Bureau or the Regional Offices, but processed and acted upon by the Bureau

Note: LOs may be organized under the Corporation Code as a non-stock corporation but such
incorporation does not grant it the rights and privileges of an LLO, although it acquires legal
personality before regular courts of justice.
Requirements for Registration:
a
b
c
d

Federation/ National Union -- (See IRR Book V Rule III Sec. 2 B)

Independent Labor Union -- (See IRR Book V Rule III Sec. 2 A)
Workers Association -- (See IRR Book V Rule III Sec. 2 C)
Chartered Local (See IRR Book V Rule III Sec. 2 E as amended by D.O. 40-B-03,
Fozs book is not updated) The chartered local must not only be reported but must
be registered, thus necessitating the correction from the original Sec. 2-E. Sec. 2-E as
amended reads:
A duly registered federation or national union may directly create a chartered local
by submitting to the Regional Offices two copies of the following:
a
b
c

A charter certificate issued by the federation/national union indicating the

creation or establishment of the local/chapter
The names of the local/chapters officers, their addresses and the principal office
of the local chapter; and
The local/chapters constitution and by-laws, provided that where the
local/chapters constitution and by-laws is the same as that of the federation or
national union, this fact shall be indicated accordingly.

All the foregoing supporting requirements shall be certified under oath by the
Secretary or the Treasurer of the local/chapter and attested by its President.
Although the law fixes no time for the submission of the required documents for a chartered
local, the IRR requires the documents to be submitted within 30 days from receipt of notice from
the Regional Office. Is the rule valid? Yes, the Supreme Court has upheld the validity of such in a
similar challenge to D.O. 40-03. It said Our courts do not formulate public policy, which is the
province of the legislative and executive department. It is not for us to question the change in
policy, it being a well-established principle beyond question that is it not within the province of
the courts to pass judgments upon the policy of legislative or executive action.
Trade Union Centers cannot create a local chapter as decided by the Supreme Court.
When does a Chapter Become an LLO? Not from the date of filing of the complete documents but
from the date of its issuance of its certificate of registration or certificate of creation of chartered
local.

Is the registration of a chartered local a ministerial function? No, with the shift from the date of
submission to the date of issuance of certificate of registration.
(Personal Note: For the 2 questions above the ruling in SAN MIGUEL CORP., VS. MANDAUE
PACKING PRODUCTS, G.R. NO. 152356, AUGUST 16, 2005, the first case assigned to us cannot be
used as a basis because the in that case, the petition for CE was filed in 1998 when D.O. no. 9
was still in effect rather than D.O. no. 40, which only took effect in February 2003. Thats why
there may be a difference in the answers of Azucena from the ruling of the case)

2) Atienza 196-211
5.4h Requirements Relaxed

The creation of a local does not need subscription by a minimum number of members.
The 20 percent initial membership mentioned in article 239(c) is required to register an
independent union but not a local. This makes it easier to create a chapter than an
independent union, thus expediting the growth of federations or national unions.

The current Implementing Rules (D.O. No. 40, issued in 2003( does not revive the booksof-account requirement in registration.

5.4i Withdrawal by Members

IF withdrawal is done before the application for registration is filed, the withdrawal is
presumed voluntary and it may prejudice the registrability of the applicant union. On
the other hand, if the withdrawal is done after the application is filed, the withdrawal is
considered involuntary and does not affect the registration application.

5.5 Union's Legitimacy not Subject to Collateral Attack

After stating that the union acquires legal personality on the date its registration
certificate is issued, Sec. 8, Rule IV of D.O. 40-03 further states: Such legal personality
may be questioned only through an independent petition for cancellation of union
registration in accordance with Rule XIV of these Rules, and not by way of collateral
attack in [the] petition for certification election proceedings under Rule VIII.

6. COLLECTIVE BARGAINING UNIT (CBU)

Bargaining Unit refers to a group of employees sharing mutual interests withing a

given employer unit, compromised of all or less than all of the entire body of employees
the employer unit or any specific occupational or geographical grouping withing such
employer unit.

It may be all supervisors or all the rank-and-file in the company, but the law does not
allow supervisors and rank-and-file to belong to the same bargaining unit. Or the unit
may be an identifiable smaller group of supervisors or smaller group of rank-and-file
workers.

Can there be several bargaining units of supervisors or of rank-and-file in just one

company? Yes, because of several reasons. But the DOLE policy favors the creation of
only one CBU in one company, i.e., only one for rank-and-file and another one for the
supervisors.

One bargaining unit may be as numerous as thousands of employees or less than a

hundred. The law fixes no minimum or maximum number. Whatever the number, twenty
percent thereof should be members of the independent union applying for registration.

The representative union, once determined, will represent even the members of other
unions as long as they are part of the CBU.

7. CONSTITUTION, BY-LAWS, AND REGULATIONS

Another registration requirement is the submission of the constitution and by-laws (CBL)
of the applicant union.

Like other voluntary associations, labor unions have the right to adopt constitutions,
rules, and by-laws within the scope of the lawful purposes of the union and bind their
members thereby, provided they are reasonable, uniform, and not discriminatory, and
provided they are contrary to public policy or the law of the land.

The articles of agreement of a labor union, whether called a constitution, charter, by

laws, or any other name, constitutes a contract between the members which the courts
will enforce, if not immoral or contrary to public policy or the law of the land.

A union's constitution and by laws govern the relationship between and among its
members. As in the interpretation of contracts, if the terms are clear and leave no doubt
as to the intention of the parties, the literal meaning of the stipulation shall control.

A union member who is entitled to a benefit under the union by-laws has the right to file
a complaint against the union itself to claim such benefit.

7.1 Limitation to By-laws

A statute providing that labor unions may devise and adopt ways and means to make
their rules, regulations, and by-laws, and resolutions effective does not sanction rules,
regulations, by-laws or resolutions to commit wrong, nor does it authorize interference
with the constitutional rights of others.

Under article 234(e) it is implied that the members are the ones to adopt or ratify the
union's constitution and by-laws. It being the governing law of the union, the CBL should
be democratically ratified.

7.2 Amendments

In the absence of other requirements, and subject to vested rights, union constitution
may be made, changed, unmade, or suspended by a majority vote of the members or its
constituent body.

Under Article 241(d), major policy questions are to be deliberated upon and decided by
secret ballot by the members.

8. PROVISIONS COMMON TO THE REGISTRATION OF LABOR ORGANIZATIONS

AND WORKERS' ASSOCIATION

8.1 Attestation, Fee, Copies of Documents

The application for registration of labor unions and workers' associations, notice for
change of name, merger, consolidation and affiliation including all the accompanying
documents, shall be certified under oath by its Secretary or Treasurer, as the case may
be, and attested to by its President.

A labor union and workers' association shall be issued a certificate of registration upon
payment of the prescribed registration fee.

One (1) original copy and two (2) duplicate copies of all documents accompanying the
application or notice shall be submitted to the Regional Office or the Bureau.

8.2 Action on the Application/Notices

The Regional Office or the Bureau, as the case may be, shall act on all applications for
registration or notice of change of name, affiliation, merger and consolidation within ten
(10) days from receipt either by: (a) approving the application and issuing the certificate
of registration/acknowledging the notice/report; or (b) denying the application/notice for
failure of the applicant to comply with the requirements for registration/notice.

8.3 Denial of Application/Return of Notice

Where the documents supporting the application for registration/notice of change of

name, affiliation, merger and consolidation are incomplete or do not contain the required
certification and attestation, the Regional Office or the Bureau shall, within five (5) days
from receipt of the application/notice, notify the applicant/labor organization concerned
in writing of the necessary requirements and complete the same within thirty (30) days
from receipt of notice. Where the applicant/labor organization concerned fails to
complete the requirements within the time prescribed, the application for registration
shall be denied, or the notice of change of name, affiliation, merger and consolidation
returned, without prejudice to filing a new application or notice.

8.4 Appeal

The denial by the regional office may be appealed to the Bureau and then to the Court of
Appeals. The appeal should be filed within ten (10) days from receipt of such notice, on
the ground of grave abuse of discretion or violation of these Rules.

The memorandum of appeal shall be filed with the Regional Office or the Bureau that
issued the denial/return of notice. The memorandum of appeal together with the
complete records of the application for registration/notice of change of name, affiliation,
merger or consolidation, shall be transmitted by the Regional Office to the Bureau or by
the Bureau to the Office of the Secretary, within twenty-four (24) hours from receipt of
the memorandum of appeal.

The Bureau or the Office of the Secretary shall decide the appeal within twenty (20) days
from receipt of the records of the case.

(sidebar pg 201) Some Reasons for Joining a Union

1. Need to improve conditions

2. Discontent with wages
3. Inadequate benefits
4. No feeling of justice
5. Insecurity
6. Poor supervision

7. Lack of communication

9. AFFILIATION

An affiliate is an independently registered union that enters into an agreement affiliation

with a federation or a national union. It also refers to a chartered local which applies for
and is granted an independent registration but does not disaffiliate from its mother
federation or national union.

The mother union shares in union dues collection as it extends its helping hand, while
the daughter draws support and guidance from the mother's wealth of experience or
legal advice.

According to Article 243, a federation or national union, to be registerable or to remain

registered, should have as affiliates no less than ten locals or chapters, each of which is
a duly recognized bargaining agent in the establishment where it operates.

9.1 Principal-Agent Relationship

The relationship between a local or chapter and the labor federation or national union is
generally understood to be that of agency, where the local is the principal and the
federation the agent.

Affiliation by a duly registered local union with a national union or federation does not
make the local union lose its legal personality. Despite affiliation, the local union remains
the basic unit free to serve the common interest of all its members.

9.2 Report of Affiliation; Requirements

An independently registered labor union

affiliating with a federation or national union is required to report such affiliation. The
report shall be filed
with the Regional Office that issued its certificate of registration.

The report of affiliation of independently registered labor unions with a federation or

national union shall be accompanied by the following documents:

(a) resolution of the labor union's board of directors approving the affiliation;

(b) minutes of the general membership meeting approving the affiliation;

(c) the total number of members comprising the labor union and the names of members
who approved the affiliation;

(d) the certificate of affiliation issued by the federation in favor of the independently
registered labor union; and

(e) written notice to the employer concerned if the affiliating union is the incumbent
bargaining agent.

10. DISAFFILIATION

It has been repeatedly held that 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. This right is consistent with the constitutional
guarantee of freedom of association.

Admittedly, there are times when without succor and support local unions may find it
hard, unaided by other support groups, to secure justice for themselves. Yet the local
unions remain the basic units of association, free to serve their own interests subject to
the restraints imposed by the constitution and by-laws of the national federation, and
free also to renounce the affiliation upon the terms laid down in the agreement which
brought such affiliation into existence. In other words, to disaffiliate is a right, but
to observe the terms of affiliation is an obligation.

Neither is disaffiliation from the federation, alleged as an act of disloyalty, a sufficient

ground for dismissal from employment. A local union which has affiliated itself with a
federation is free to sever such affiliation or declare its autonomy from the federation to
which it belongs when the circumstances so warrant, in accordance with the
constitutional guarantee of freedom of association.

Disaffiliation of employees from their mother union and their formation into a new union
do not terminate their status as employees of the corporation as the employees and
members of the local union did not form a new union but merely exercised their right to
register their local union.

However, the disaffiliating must itself be a registered union. If unregistered, it is not a

legitimate labor organization. For this reason, it has no legal personality and does not
possess the rights granted under Article 250.

Case (pg 205): Liberty Cotton Mills Worker's Union vs Liberty Cotton Mills, Inc., G.R. No.
L-33987, September 4, 1975.

[super short version, personal notes: Local union represented by a national federation
was recognized as sole bargaining agent. 32 out of 36 members of local union
disaffiliated from the mother federation. Mother federation, because of union security
clause recommended that the employer terminate employees. Court held that local
union is principal and national federation is agent and since the majority wanted to
disaffiliate, dismissal was unjustified.]

Case (pg 205-206): Tropical Hut Employees Union-CGW, et al. vs Tropical Hut Food
Market, Inc., et al., G.R. Nos. L-43495-99, January 20, 1990.

[super short version, personal notes: Local union left old federation and joined a new
one. In the absence of enforceable provisions in the federation's constitution preventing
disaffiliation of a local union, a local may sever its relationship with its parent. Also,
mother federation wasn't registered with the Department of Labor and therefore didn't
have legal personality to enforce its constitution (ooops) and the ground was on a
technicality in their constitution which cannot rise above the fundamental right to self
organization]

10.1 When to Disaffiliate

Generally, a labor union may disaffiliate from the mother union to form a local or
independent union only during the 60-day freedom period immediately preceding the
expiration of the CBA.

But even before the onset of the freedom period (and despite the closed shop provision
in the CBA between the mother union and management) disaffiliation may still be carried
out, but such disaffiliation must be effected by a majority of the members in the
bargaining unit.

This ruling, this writer believes, is true only if the contract of affiliation does not specify
the period. If it does, the stipulation must be observed.

10.2 Disaffiliation must be by Majority Decision

An individual member or any number of members may disaffiliate from the union during
the freedom period. But disaffiliating the union itself from its mother union must be
supported by the majority of the members. If done by a minority, even during the
freedom period, the act may constitute disloyalty. The minority members breaking away
at the wrong time may be expelled from the union and, because of union security clause,
may be removed from their employment.

Case (pg 207) Villar, et al. vs Inciong, etc., G.R. Nos. L-50283-84, April 20, 1983.

[super short version, personal notes: petitioners were the minority that wanted to
disaffiliate from the mother federation and filed a petition for certification election during
freedom period. Court said that it would have been ok if they disaffiliated themselves
but their actions indicated that they were disaffiliating the local union from the mother
federation without the concurrence of the majority. Mother union recommended that
employers terminate employment of Villar, et al.]

10.3 Disaffiliation: Effect on Union Dues

The obligation of an employee to pay union dues is co-terminus with his affiliation or
membership. The employees' check-off authorization, even if declared irrevocable, is
good only as long as they remain members of the union concerned.

A contract between an employer and the parent organization as bargaining agent for the
employees is terminated by the disaffiliation of the local of which the employees are
members.

A local union which has validly withdrawn from its affiliation with the parent association
and which continues to represent the employees of an employer is entitled to check-off
dues under a CBA.

10.4 Disaffiliation: Effect on Existing CBA; the Substitutionary Doctrine

The substitutionary doctrine provides that the employees cannot revoke the validly
executed collective bargaining contract with their employer by the simple expedient of
changing their bargaining agent.

10.5 Employer Not a Party

The issue of affiliation or disaffiliation is an intra-union dispute that must de resolved in

an action at the instance of the federation or the union or a rival labor organization, not
the employer.

10.6 Affiliation/Disaffiliation: A Summary

A local union may affiliate or disaffiliate from a federation. But affiliation and disaffiliation
entail rights and obligations. Internally, between the union and its members

affiliation/disaffiliation is a major issue that can only be decided by a majority of the

members through a secret balloting in a formal meeting duly called for the purpose.
Externally, between the chapter and the federation, affiliation/disaffiliation is a
contractual relation. Assuming that the elements of a valid contract exist, the contractual
rights and obligations must be complied with. The affiliation contract cannot absolutely
prohibit disaffiliation but may impose limitations or restrictions. It may specify the
number or proportion of votes needed, or the appropriate period to disaffiliate. By
affiliating or disaffiliating, the local union ford not dissolve itself nor does it lose its
standing as the principal; the federation is the agent. But the local union, even a local
chapter, must be a legitimate labor organization.

11. REVOCATION OF CHARTER

A federation, national union or workers association may revoke the charter issued to a
local/chapter or branch by serving on the latter a verified notice of revocation, copy
furnished the Bureau, on the ground of disloyalty or such other grounds as may be
specified in the constitution and by-laws of the federation, national union or workers
association. The revocation shall divest the local/chapter of its legal personality upon
receipt of the notice by the Bureau, unless in the meantime the local/chapter has
acquired independent registration in accordance with these Rules.

11.1 Effect of Cancellation of Registration of Federation or National Union on

Locals/Chapters

The cancellation of registration of a federation or national union shall operate to divest

its locals/chapters of their status as legitimate labor organizations, unless the
locals/chapters are covered by a duly registered collective bargaining agreement. In the
latter case, the locals/chapters shall be allowed to register as independent unions, failing
which they shall lose their legitimate status upon the expiration of the collective
bargaining agreement.

12 MERGER OR CONSOLIDATION

Merger of labor organizations is the process where a labor organization absorbs

another, resulting in the cessation of the absorbed labor organization's existence and the
continued existence of the absorbing labor organization. Another name for merger is
absorption.

Consolidation of unions refers to the creation or formation of a new union arising from
the unification of two or more unions. Another name for consolidation is amalgamation.

Why do unions merge? First, a small union may merge with a larger union in order to
gain access to greater resources and expertise. Second, unions that have traditionally
competed with each other for members may merge in order to eliminate inter-

organizational conflicts; resources that have been used to compete with a rival union
could be used for more constructive purposes once the rivals have merged. Third, unions
whose members' skills have been outmoded by technological and economic changes
may merge with a stronger union in order to maintain job security and institutional
survival.

3) Barte 212-226
12.1 Notice of Merger/ Consolidation of Labor Organization; Where to file

Independent Labor Unions, Chartered Locals and workers Association

It shall be filed with and recorded by the Regional Office that issued the certificate of registration/
certificate of creation of chartered local of either the merging or consolidation labor organization
Federations or National Unions
It shall be filed with and recorded by the Bureau

12.2 Requirements of Notice of Merger/Consolidation

a
b

The minutes of merger/ consolidation convention or general membership meetings of all merging/
consolidating labor organizations, with the list of their respective members who approved the same
The amended constitution and by-laws and minutes of its ratification, unless ratification transpired
in the merger/ consolidation convention, which fact shall be indicated accordingly.

13. CHANGE OF NAME

The notice of change of name of a registered labor organization shall be filed with the Bureau of the
Regional Office where the concerned labor organizations certificate of registration or certificate of creation
of chartered local was issued.
Accompanied by the proof of approval or ratification of change of name and the amended
constitution and by-laws
13.1 Effect: It shall not affect its legal personality. All the rights and obligations of a labor organization
under its old name shall continue to be exercised by the labor organization under its new name.
ART 244 CANCELLATION OF REGISTRATION
ART. 245 EFFECT OF PETITION FOR CANCELLATION OF REGISTRATION
ART. 246 GROUNDS FOR CANCELLATION OF UNION REGISTRATION
ART. 247 VOLUNTARY CANCELLATION OF REGISTRATION
1

CANCELLATION OF REGISTRATION; GROUNDS

While registration is the act that converts a labor organization to a legitimate labor organization,
cancellation is the governments act that divest the organization of that status.
It thereby reverts to its character prior to registration
Although it does not cease to exist or become an unlawful organization, its juridical personality as
well as its statutory rights and privileges is suspended.
It loses entitlement to the rights enumerated in Art 242
It cannot demand recognition by or bargaining with the employer, cannot file a petition for
certification election and cannot strike.

Through RA. No. 9481, the ten grounds mentioned in the unamended Article 239 have been reduced to
three.
1
2

Two pertain to misrepresentation about the union constitution or by-laws or about election of
officers
The third mode is by the desire of the union members themselves
Requisites
a The members desire to dissolve or cancel the registration of their union should have been
voted upon through secret balloting [ Art 241(d)]
b The balloting should take place in a meeting duly called for the purpose of deciding whether
or not to dissolve the union
c The vote to dissolve should represent two-thirds affirmative vote of the general membership.
Not just of the quorum

The members resolution should be followed by an application for cancellation passed and
submitted by the union governing board, which application may be attested to by the
president

1.1 Invalid grounds

-

Illegal strike is not reason to cancel a unions registration

Non-renewal of registration/permit will not cause dismissal of the case filed by the union, provided
that when it filed the petition, it had the juridical personality and the court acquired jurisdiction over
the case
The case could continue without need of substitution of parties, but the decision to be
rendered would bind only those union members who had not withdrawn from the case
before its trial and decision on the merits

1.2 Deleted Grounds

Cabo
- Refers to a person or group of persons or to a labor group, which, in the guise of a labor
organization, supplies workers to an employer, with or without any monetary or other consideration
whether in a capacity of an agent of the employer or as an ostensible independent contractor.
Sweetheart Contract
- A CBA which provides for terms and conditions of employment below minimum standards
established by law
Asking for or accepting attorneys fees or negotiation fees from the employer
- Still exists because the Labor Code itself in Art 249 prohibits it as a ULP act R.A No. 9481 has spared
Art 249
30% of the members supports the petition [Art 241]
Failure to submit annual documentary reports [Art 242-A]
1.3 Administrative Cancellation; the reportorial requirements
Every legitimate labor union and workers association has the duty to submit to the Regional Office
or the Bureau, 2 copies of each of the following documents:
a
b
c

d
e

Any amendment to its constitution and by-laws and the minutes of adoption or ratification of such
amendments, within 30 days from its adoption or ratification
Annual financial reports within 30 days after the close of each fiscal year or calendar year
Updated list of newly elected officers, together with the appointive officers or agents who are
entrusted with the handling of funds, within 30 days after each regular or special election of officers
of from the occurrence of any change in the officers or agents of the labor organization or workers
association
Updated list of individual members of chartered locals , independent unions and workers
associations within 30 days after the close of each fiscal year
Updated list of its chartered locals and affiliates or member organization, collective bargaining
agreements executed and their effectivity period, in the case of federations or national unions,
within 30 days after the close of each fiscal year, as well as the updated list of their authorized
representatives, agents, or signatories in different regions of the country.

The fiscal year of a labor organization shall coincide with the calendar year, unless a differs period is
prescribed in the constitution and by-laws
Failure of the labor organization to submit the reports mentioned above for 5 consecutive years authorizes
the Bureau to institute cancellation proceeding upon its own initiative or upon complaints by any party in
interest
2
-

FILES PETITION FOR CANCELLATION

Any party in interest may commence a petition for cancellation of a unions registration

Jurisprudence
Progressive Development Corporation vs Secretary of Labor
Where the employer sought and won the cancellation of the unions registration on the ground that it
failed to submit the required documents, such as books of accounts and the union by-laws, when it applied
for registration
Toyota Motor Philippine Corp. vs. Toyota Corp. Philippine Labor Union
Where the employer questioned the inclusion of some supervisors in the rank and file union. The petition
filed by the employer led to the divestment of legal personality of the union because its mixed
membership makes it not a labor organization at all.

The petition to cancel shall be under oath and shall state clearly and concisely the facts and grounds relied
upon, accompanied by proof of service to the respondent. But such petition should be a separate action; it
cannot be entertained in the petition for certification election filed by the union
3

WHERE TO FILE PETITION

Subject to the requirement of Notice and Due Process, the registration of any legitimate
independent labor union, chartered local and workers association may be cancelled by the regional
director, or in the case of federation, national or industry union and trades and trade union centers, by the
Bureau Director, upon the filing of an independent complaint or petition for cancellation.
Cancellation orders issued by the Regional Director are appealable to the BLR. The latters decision
id final and executory, hence not appealable to the DOLE secretary but it may be elevated tot eh Court of
Appeals by certiorari. BLR decisions on cancellation cases that originated at the BLR itself may be
appealed to the Secretary by certiorari to the CA.
4

PROCEDURE

The rules of procedure in cancellation case are those applicable to inter/intra union disputes in general
under ART 226

ART 248 EQUITY OF THE INCUMBENT

Chapter II
RIGHTS AND CONDITIONS OF MEMBERSHIP
ART 249 RIGHTS AND CONDITIONS OF MEMBERSHIP IN A LABOR ORGANIZATION
1

DEMOCRATIZATION OF UNION
Unionization transforms the weakness of the individual into the strength
But, as unionisms aim is to install industrial democracy, the union themselves must be democratic.
To democratize the union, it requires the union members to elect their officers every 5 years
through secret balloting. Election of officers is the heart of union democracy.
Further stressing union democracy explicitly grants policy-approving power of the members.
They determine any question of major policy through deliberations and secret balloting
The union are the keepers and dispensers of official authority in the union.
The governing power is the members, not the officers.

NATURE OF RELATIONSHIP BETWEEN UNION AND ITS MEMBERS

The union has been evolved as an organization of collective strength for the protection of labor against
the unjust exaction of capital, but equally important is the requirement of fair dealing between the union
and its members, which is fiduciary in nature, and arises out of two factors:
-

One is the degree of dependence of the individual employee on the union organization
The comprehensive power vested in the union with respect to individual

The union may be considered but the agent of its members for the purpose of securing for them fair and
just wages and good working conditions. As an agent, the union is subject to the obligation of giving the
members as its principals all information relevant to union and matters entrusted to it.
2.1 Duty of Court To Protect Laborers From Unjust Exploitation By Oppressive Employers And
Union Leaders
Fair dealing is equally demanded of unions as well as of employers in their dealing with their
employee. Where the union leadership as in this case at bar was recreant in its duty towards the union
members, the courts must be vigilant to protect the individual interests of the union members.
The union officer cannot refuse to grant a benefit or assistance to which a union member is entitled
under the union constitution and by-laws. The union constitution is a covenant between the union and its
members and among the members.
3
1

RIGHTS OF UNION MEMBERS

Political right- the members right to vote and be voted for, subject to lawful provisions on
qualifications and disqualifications.

2
3

Deliberative and decision making right- the members right to participate in deliberations on major
policy questions and decide them by secret ballot
Rights over money matters- the members right against excessive fees; the right against
unauthorized collection of contributions or unauthorized disbursements; the right to require
adequate records of income and expenses and the right of access to financial records, the right to
vote on officers compensation; the right to vote on proposed special assessments and be deducted
a special assessment only with the members written consent.
Right to information- the members right to be informed about the organizations constitution and
by-laws and the CBA and about labor laws.

Membership in the union does not divest the members of their primary standing as employees. In
this capacity, an individual stands apart from the union. He has a personality and the right to make
individual personal representation to the employer. The worker is an employee first and a union
member second. As between the members and the union, the members are the principal, the union is
the agent or representative. The sovereign power emanates from the people is as true as true in a
state as it is in a labor union.
3.1 Eligibility for Membership
When, how and under what conditions does an employee become a union member?
-

The answer depends on the unions constitution and by-laws inasmuch as Art 259 gives a labor
organization the right to prescribe its own rules for the acquisition or retention of membership.
An employee is qualified for union membership starting on the first day of service.
An employees membership in a union however does not necessarily mean coverage by the CBA, if
one exists. The CBA defines its coverage as agreed by the parties. It may state that it covers only
regular employees, thus excluding the probationary employees, and even among regular
employees, it may exclude certain positions or jobholders.
Qualifying for union membership therefore does not necessarily mean inclusion in the coverage of
the CBA. The reverse is equally true: membership in the CBU does not automatically mean
membership in the union.
Example: members of certain religious sects do not join unions although they are members of the
bargaining unit.
CBU members vote to select a bargaining union or to ratify the CBA. But only union members can
vote to elect union officers, to strike or not to strike, or to decide major policy issues in the union.

Summary:

Inclusion in the CBU depends on the determination of its appropriateness under Art 239 and 266
Inclusion or membership in a union depends on the union constitution and by-laws, without
prejudice to Art 291c
Inclusion or coverage in the CBA depends on the stipulations of the CBA itself.

4. ELECTION OF UNION OFFICERS

The officers of the union are elected directly by the members in secret ballot voting.
The election takes place at intervals of 5 years which is the term of office of the union officers
including those of national union, federation or trade union center.
What positions to fill up, where and how the election should be done are matters left by the law to
the unions constitution and by-laws or to agreement among the members.
Only in the absence thereof will the Implementing Rules of Book V will apply.
The Implementing Rules require the incumbent president to create an election committee within 60
days before expiration of the incumbent officers term. The rules specify the composition as well as
the powers and duties of the election committee, but its rules and actions cannot contradict the
Labor Code mandates.
If the officers with expired term do not call an election, the remedy according to Rule XII is for
atleast 30% of the members to file a petition with the DOLE Regional Office.
The members frustration over the performance of the union officers, as well as their fear of a
fraudulent election to be held under the latters supervision, does not justify disregard of the
unions constitution and by- laws.

4.1 Eligibility of Voters

Only members of the union can take part in the election of union officers.

US Federal Law: in any election required to be held by secret ballot, every member in good standing must
have the right to vote for, or otherwise support the candidates of his choice without being subject to
penalty, discipline or improper interference or reprisal of any kind by the union or any member thereof.
Every member in good standing is entitled to one vote
A member in good standing is any person who has fulfilled the requirements for membership in the union
and who has neither voluntarily withdrawn from membership nor been expelled or suspended from
membership after appropriate proceedings consistent with the lawful provisions of the unions constitution
and by-laws.
A labor organization may prescribe reasonable rules and regulations with respect to voting eligibility.
While the right to vote may thus be deferred within reasonable limits, a union may not create special
classes of non-voting members
A labor organization may condition the exercise of the right to vote on the payment of dues, since paying
dues is a basic obligation of membership.
2 qualifications
a
b

Any rule denying dues-delinquent members the right to vote must be applied uniformly
Members must be afforded a reasonable opportunity to pay dues, including a grace period which
dues may be paid without any loss of rights

Submission of the employees name with the Bureau of Labor Relations as qualified members of the
union is not a sine qua non to enable said members to vote in the election of the unions officers.

4) Basadre 227-241
4.2 Union officer must be an employee
IRR, Book V, Rule II, Sec. 3 [f]
-

One should be employed in the company to qualify as officer of a union in that company.
Although subsequent department orders deleted this provision, the membership qualification
remains because it is required in the Code itself, in Art 241 (c), second sentence.

4.3 Disqualification of Union Officers

Art. 241 (f). No person who has been convicted of a crime involving moral turpitude
shall be eligible for election as a union officer or for appointment to any position in the union.
-

Crime involving moral turpitude- characterized by an act of baseness, vileness or depravity

in the private or social duties which a man owes his fellowmen, or to society in general, contrary
to accepted and customary rule of right and duty between man and man, or conduct contrary to
justice, honesty, modesty, or good morals.

Art. 241 (e). No labor organization shall knowingly admit a member or continue in
membership any individual who belongs to a subversive organization or who is engaged
directly or indirectly in any subversive activity.
-

One who cannot be a member cannot be a candidate for an office.

4.4 Union Election Protest: Proclamation of Winners

-

A protest regarding election of union officers is treated in the IRR as an intra/inter-union dispute.
(Rule XI of D.O. No. 40-03 applies)

5. ACTION AGAINST UNION OFFICERS

- A union officer, after his election, may not be expelled from the union for past malfeasance or
misfeasance. To do so would nullify the choice made by the union members.
- Remedy against erring union officers is not referendum but expulsion.
Kapisanan na Manggagawang Pinagyakap vs. Trajano (143 SCRA 236)

If the union officers were guilty of the alleged acts imputed against them, the DOLE Sec. should
have meted out the appropriated penalty on them, i.e., to expel them from the Union and not call
for a referendum to decide the issue.
-

Where the people have elected a man to office, it must be assumed that they did this with the
knowledge of his life and character and that they disregarded or forgave his faults or
misconduct if he had been guilty if any.

6. DUE PROCESS IN IMPEACHMENT

Litton Mills Employees Association-Kapatiran vs. Ferrer- Calleja, L-78061 (1988) there must be
substantial compliance with the impeachment procedure as provided by the unions constitution and by-laws.

7. EXPULSION OF MEMBER
A member of a labor union may be expelled only for a valid cause and by following the procedure
outlined in the constitution and by-laws of the union.
Ferrer et al. vs. NLRC
-If after an investigation the petitioners were found to have violated union rules, then and only then
should they be subjected to proper disciplinary measures.
-Expulsion of a member for arbitrary or impetuous reason may amount to unfair labor practice by the
union. This matter is taken up in the chapter on U.L.P. particularly Article 259.

8. RELIEF WITHIN THE UNION

General Rule: Redress must first be sought within the union itself in accordance with its constitution and
by-laws.
Exceptions:
-

Where exhaustion of remedies within the union itself would practically amount to a
denial of justice, it would not be insisted upon, as a condition to the right to invoke
the aid of a court.

Kapisanan ng mga Manggagawa sa MRR vs. Hernandez 20 SCRA 109

In the case, noteworthy is the fact that the complaint was filed against the union and its incumbent officers,
some of whom were members of the board of directors. The constitution and by-laws of the union provide that charges
for any violations thereof shall be filed before the said board. But as explained by the lower court, if the complaints
had done so the board of directors would in effect be acting as respondent investigator and judge at the same
time. To follow the procedure indicated would be a farce under the circumstances, where exhaustion of remedies within the
union itself would practically amount to a denial of justice or would be illusory or vain, it will not be insisted upon,
particularly where property rights of the members are involved, as a condition to the right to invoke the aid of a court.

When there is violation of due process

Verceles, et al. vs, BLR

The union members have chronicled from the very beginning that they were indefinitely suspended without the
benefit of a formal charge sufficient in form and substance. The rule on exhaustion of administrative remedies cannot
squarely apply to them.

9. CONSEQUENCE OF VIOLATION OF RIGHTS

a) Cancellation of the union registration
b) Expulsion of the culpable officers
However, another view holds that Art. 244 and 247 limit to only three the grounds for cancellation
of union registration and violation of Article 249 is not one of the three.
Exception: when 30 % not required
The 30% requirement is not mandatory.
It states that a report of a violation of rights and conditions of membership in a labor organization may
be made by at least thirty percent of all the members of a union or any member or members especially
concerned. The use of the word may negates the notion that the assent of 30% of all members is mandatory.
More decisive is the fact that the provision expressly declares that the report may be made, alternatively by
any member or members specially concerned. And further confirmation that the assent of 30% of the union
members is not a factor in the acquisition of jurisdiction by the BLR is furnished by Art. 226 of the same Labor
code, which grants original and exclusive jurisdiction to the Bureau, over all inter-union and intra-union
conflicts, and all disputes, grievances or problems arising from or affecting labor management relations,
making no reference to any such 30% support requirement. (Verceles, et al. vs. BLR)

10. VISITORIAL POWER

Article 288 authorizes the SOLE or his duly authorized representative to inquire into the financial
activities of any labor organization on the basis of a complaint under oath, supported by a 20 percent of the
membership in order to determine compliance or noncompliance with the laws and to aid in the prosecution of
any violation thereof.
11. CHECK-OFFS AND ASSESSMENTS
A check-off is a method of deducting from an employees pay at prescribed period, the amounts due the union
for fees, fines, or assessments. The right of a union to collect union dues is recognized under Article 291 (a).
Art. 113, one of the lawful deductions from employees wage is for union dues, in cases where the right of the
worker or his union to check-off has been recognized by the employer or authorized in writing by the individual worker
concerned. But the amount of union dues must be reasonable
Art. 249, prohibits the imposition of excessive or arbitrary fees.
-

The amount and collection of union dues are questions that affect the entire membership; hence, they
have to be approved by the members themselves. [Art. 249 (d)]

Assessments, like Dues, may also be Checked-off

Dues- payments to meet the unions general and current obligations. The payment must be regular, periodic, and
uniform. Payment used for a special purpose, especially if required only for a limited time, are regarded as
assessment.
Art. 249- No special assessment, attorneys fees, negotiation fees or any other extraordinary fees may be checked off
from any amount due an employee without individual written authorization duly signed by the employee. The
authorization should specifically state the amount, purpose and beneficiary of the deduction.
Attorneys fees may not be deducted or checked off from any amount due to an employee without his written
consent, except for mandatory activities under the code.
Mandatory Activity- is a judicial process of settling dispute laid down by the law. An amicable settlement entered
into by the management and the union is not a mandatory activity under the code. Moreover, the law explicitly
requires the individual written authorization of each employee concerned, to make the deduction of attorneys fees
valid.
Deductions for union service fee are authorized by law and do not require individual check-off authorizations.
However, the benefits awarded to the employees formed part of the collective bargaining negotiations
although placed under compulsory arbitration. Notwithstanding its compulsory nature, compulsory arbitration is
not the mandatory activity under the Code which dispenses with individual written authorizations for check-offs. It is
a judicial process of settling deputes laid down by law. Besides, Art. 288 (b) does not except a CBA later placed under
compulsory arbitration, from the ambit of its prohibition. In other words, individual written authorizations are needed to
deduct from members salary the attorneys fee for concluding a CBA although compulsory arbitration.
Special Assessment may be checked-off, but Art. 249 should be carefully complied with.
Palacol, et al. vs. Pura Ferrer-Calleja, et al.
The court strikes down the questioned special assessment for being a violation of Art. 249, par.
(n) and (o), and Art. 228 (b) of the Labor Code.
Ruling:
1. Requirements- The failure of the Union to comply strictly with the requirement set out by the law invalidates the
questioned special assessment. Substantial compliance is not enough in view of the fact that the special assessment
will diminish the compensation of the union members. Their express consent is required, and this consent must be
obtained in accordance with the steps outlined by law, which must be followed to the letter. No shortcuts allowed.
[Requirements under Article 249 (n) and (o) were violated in this case]
2. Effects of withdrawal of authorizations.- The withdrawal of the authorization is equivalent to no authorization
at all. (See Art 249 paragraphs (n) and (o) requirements)
3. Forms of disauthorizations.- There is nothing in the law which requires that the disauthorizations must be in
individual form. It can be collective.
4. Purpose of the special assessment.- xxx
5. Art. 228 (b) of the Labor Code, similar charge.- The collection of special assessment partly for the payment
services rendered by union officers, consultants and others may not be in the category of attorneys fees or
negotiation fees. But there is no question that it is an exaction which falls within the category of a similar charge,
and, therefore, within the coverage of the prohibition in the aforementioned article.
6. Unlimited discretion of union president, disallowed
Three Requisites to Collect Special Assessment (to be valid)
a) Authorization by a written resolution of the majority of all the members at the general membership meeting
duly called for the purpose;
b) Secretarys record of the minutes of the meeting;
c) Individual written authorization for check-off duly signed by the employee concerned.
>Article 249 (n and o)- Authorization should proceed form FREE CONSENT
>Check-off of agency fee- another allowable deduction from ees wage is agency fee. This is an amount equivalent
to union dues, which a nonunion member pays to the union because he benefits from the CBA negotiated by the
union. It is agency fee because in negotiating the CBA the union served as the employees agent. (Art 258 (e)

>Illegal check-off is a ground for cancellation of union registration (Art 246 (h) amended by R.A.9481) - on
the part of the Employer, illegal check-off may give rise to a charge of illegal deduction, in violation of Art. 113.
>Employers Liability in Check-off Arrangement- Employers failure to make the requisite deductions may
constitute a violation of a contractual commitment for which it may incur liability for unfair labor practice. But the
employer does not, by that omission, incur liability to the union for the aggregate of dues or assessments uncollected
from the union members or agency fees for non-union employees.
>Jurisdiction over Check-off Disputes
The Regional Director of DOLE, not the labor arbiter, has jurisdiction over check-off disputes. Under Art. 241 of
the Labor Code, the Bureau of Labor Relations has jurisdiction over cases of violations thereof and to meet the
appropriate penalty. The complaint of union members against a union resolution checking off 10% of their CBA benefits
is not a money claim against the employers, even if the employer is named as respondent. The complaint against the
union over which the labor arbiter has no jurisdiction.

5) Calo 242-256
CHAPTER III
RIGHTS OF LEGITIMATE LABOR ORGANIZATION

ART. 242 Rights of Legitimate Labor Organization

1. NOT ANY L.L.O

The first three rights mentioned in this article do not pertain to just about any union but only to the union
that has been selected as the bargaining representative of the employees in the bargaining unit.
The union whose demand for collective bargaining was rebuffed by the employer, because the union was
not the certified bargaining agent, has no right to stage a strike. The strike is illegal. Such illegality is
reason enough for the NLRC to declare that the union officers have lost their employment status.
( Philippine Diamond hotel, etc. vs. Manila Diamond Hotel Employees Union, G.R. No. 158075, June 30,
2006)
2. RIGHT OF UNION TO REPRESENT ITS MEMBERS
It is the function of a labor union to represent its members against the employers unfair labor practices. It
can file an action in their behalf without the cumbersome procedure of joining each and every member as
a separate party.(Davao free workers front vs. CIR, 60 SCRA 408 [1974])
A labor union has the requisite personality to sue on behalf of its members for their individual money
claims. It would be be an unwarranted impairment of the right to self-organization if such collective entities
would be barred from instituting action in their representative capacity. (La Carlota Sugar Central vs. Court
of Industrial Relations, 64 SCRA 78 [1975] )
The means employed by the employer in dealing with the workers individually, instead of collectively
through the union and its counsel, violates good morals as they undermine the unity of the union and fuels
industrial disputes, contrary to the declared policy in the Industrial Peace Act. ( Pampanga Sugar
Development Co., Inc. vs. CIR, 114 SCRA 725[1982] )
2.1 Members Suspecting Their Union
To act as representative of its members for the purposes of collective bargaining includes
the power to represent its members for the purpose of enforcing the provisions of the CBA. When a union
files a case for and in behalf of its members, a member or several members of that union will not be
permitted to file in the same case a complaint-in-intervention even if it alleges that the union is not
pursuing the case diligently. Such complaint, together with the motion for intervention, will have to be
denied upon a finding that those members are already well represented by their union. The intervention
may be allowed, however, when there is a suggestion of fraud or collusion or that the representative will
not act in good faith for the protection of all interests represented by [the union]. (Acedera, et al. vs.
International Container Terminal Services, Inc. et al., G.R. No. 146073, January 13, 2003.)
3. COMPROMISE BINDING UPON MINORITY MEMBERS OF UNION; EXCEPTION

A compromise agreement between the Union and the Company, pursuant to which the complaint in an
unfair labor practice case had been withdrawn and dismissed, is binding upon the minority members of the
union. The action taken by said minority members in disauthorizing the counsel of record and filing another
unfair labor practice case against the company is contrary to the policy of the Magna Carta of labor, which
promotes settlement of differences between management and labor by mutual agreement. If said action
were tolerated, no employer would ever enter into any compromise agreement for minority members of
the union will always dishonour the terms of agreement and demand their better terms.(Dionela vs. Court
of Industrial relations, 8 SCRA 832 [1963])
The court, however, reached a different conclusion in one case. The union, said the court, had no authority
to compromise the individual claims of members who did not consent to such settlement, Not having
authorized their union to enter into such compromise, those members are not bound by the terms of the
settlement; hence, they can still pursue their individual claims for reinstatement and backwages. (Golden
donuts vs. NLRC, et al , G.R. Nos. 113666-68, January 19, 2000.)
4. COMPROMISE OF MONEY CLAIMS
Money claims due to laborers cannot be the object of settlement or compromise effected by a union or
counsel without specific individual consent of each laborer concerned. The beneficiaries are the individual
complainants themselves. The union to which they belong can only assist them but cannot decide for
them.
A judgment based on a compromise agreement authorized by the members does not bind the individual
members or complainants who are not parties thereto nor signatories therein. (Kaisahan ng mga
manggagawa sa La Campana vs. Sarmiento, 133 SCRA 220 [1984].)
Under the philosophy of collective responsibility, an employer who bargains in good faith should be entitled
to rely upon the promises and agreements of the union representatives with whom he must deal under
compulsion of law and contract. Where, however, collective bargaining process is not involved, and what is
at stake are backwages already earned by the individual workers by way of overtime, premium and
differential pay, and final judgment has been rendered in their favor, as in the present case, the real
parties in interest with direct material interest, as against the union which has only served as a vehicle for
collective action to enforce their just claims, are the individual workers themselves. Authority of the union
to waive or quitclaim all or part of the judgment award in favor of the individual workers cannot be lightly
presumed but must be expressly granted, and the employer, as judgment debtor, must deal in all good
faith with the union as the agent the individual workers.( Heirs of Teodolo M. Cruz vs. Court of Industrial
Relations, 30 SCRA 917 [1969])
In another case, the court noted that the complainant union members had not ratified the Return-to-Work
Agreement. It follows that they cannot be held bound by the Return-to-Work Agreement. For waiver thereof
to be legally effective, the individual consent or ratification of the workers or employees involved
must be shown.
5. RIGHT TO BE FURNISHED WITH FINANCIAL STATEMENT
To better equip the union in preparing for or in negotiating with the employer, the law gives it the right to
be furnished with the employers audited financial statements. There are four points in time when the
union may ask in writing for these statements:
1. after the union has been recognized by the employer as sole bargaining representative of the
employees in the bargaining unit; or
2. after the union is certified by DOLE as such sole bargaining representative; or
3. during the collective bargaining negotiation; or
4. within the last 60 days of the life of a CBA.
Under Article 253, the last 60 days of the CBA is the time to give notice to terminate or modify the CBA.
Therefore, this is the time also for the union to gather fresh information on the financial condition of the
company to enable it to prepare intelligently for the forthcoming CBA renegotiation.
The audited financial statements, including the balance sheet and the profit loss statement, should be
provided by the employer within 30 calendar days after receipt of the unions written request.
6. RIGHT TO COLLECT DUES

Dues are defined as payments to meet the unions general and current obligations. The payment must be
regular, periodic, and uniform. Payments used for special purpose, especially if required only for a limited
time, are regarded as assessment.
*The right of a union to collect union dues is already mentioned under the topic check-off in the comments
under article 241. Such right is explicitly recognized in article 277.
ART. 242-A Reportorial Requirements
Now, under the amendments as stated in Article 242-A, last sentence, such cancellation is no longer
allowed
[article 242-A .. failure to comply with the above requirements shall not be a ground for cancellation
of union registration..]
While article 242-A withholds cancellation, the implementing rules proceed with delisting. Apparently , the
implementing rules consider delisting as different from cancellation even if they both lead to loss of the
unions legal personality.
TITLE V
COVERAGE
Article 243 Coverage and Employees Right to Self-organization.
1. ORGANIZING IN GENERAL.
The rights to organize and to bargain, in general sense, are given not exclusively to employees. Even
workers who are not employees of any particular employer may form their organizations to protect their
interests.
Under Article 243 of this code, the right to organize refers also to forming, joining or assisting a labor
organization. Connected to Article 246 this right carries with it the right to engage in group action,
provided it is peaceful, to support the organizations objective which is not necessarily collective
bargaining but, simply, to aid and protect its members. But this kind of group action must be differentiated
from strike which, because it is work stoppage, must observe certain regulations; otherwise, the strike may
be declared illegal and its leaders may be thrown out of their jobs.
1.1 Coverage of the Right to Organize; Exceptions
The right to form , join or assist a labor organization is granted to all kinds of employees of all kinds
of employers --- Public or private, profit or non-profit, commercial or religious. Their usual form of
organization is a union and the usual purpose is collective bargaining with their employers.
But the seemingly all-inclusive coverage of all persons in Aricle 243 actually admits of exceptions.
-

Under Article 245 managerial employees, regardless of the kind of organization where they are
employed, may not join, assist or form any labor organization, meaning a labor union.
Otherwise, they would be exposed to the temptation of colluding with the union during the
negotiations to the detriment of the employer
Supervisors are allowed to organize, but they cannot form, join or assist a rank-and-file union.

2. RIGHT TO ORGANIZE CANNOT BE BARGAINED AWAY

Southern Philippines Federation of Labor (SPFL) vs. Calleja, G.R. No. 80882, April 24, 1989
Held: Although we have upheld the validity of the CBA as the law among the parties, its provision cannot
override what is expressly provided by law that managerial employees are ineligible to join, assist or form
any labor organization. The right to self-organization must be upheld in the absence of an express
provision of law to the contrary. It cannot be curtailed by a collective bargaining agreement.
3.EMPLOYEES OF NON-PROFIT INSTITUTIONS
The rank-and-file employees of non-profit medical institutions are permitted to form, organize or join labor
unions of their choice for purposes of collective bargaining.
4.EXCEPTION: EMPLOYEE-MEMBERS OF A COOPERATIVE

Owners and/or members of the cooperatives are the ones who run and operate the business while the
others are its employees. Irrespective of the number of shares owned by its members they are entitled to
cast one vote each in deciding upon the affair of the cooperative.
An employee of such a cooperative who is a member and co-owner thereof cannot invoke the right to
collective bargaining, for certainly an owner cannot bargain with himself or his co-owners.
However, insofar as it involves cooperatives with employees who are not members or co-owners thereof,
such employees are entitled to exercise the rights of all workers to organization, collective bargaining
negotiations and others as are enshrined in the Constitution and existing laws of the country.
It is the fact of ownership of the cooperative, and not involvement in the management thereof, which
disqualifies a member from joining any labor organization within the cooperative. (Benguet Electric
Cooperative, Inc. vs. Ferrer-Calleja, G.R. No. 79025, December 29, 1989.)

But member-employee of a cooperative may withdraw as members of the cooperative may withdraw as
members of the cooperative in order to join a labor union.Membership in a cooperative is voluntary;
inherent in it is the right not to join(Central Negros Electric Corp. vs. Sec. of Labor, et al., G.R. No. 94045,
September 13, 1991.)

4.1 Exception to Exception: ASSOCIATION, NOT UNION

While members of cooperative who are also its employees cannot unionize for bargaining
purposes, the law does not prohibit them from forming an association for their mutual aid and
protection as employees.
5. EXCEPTION: INTERNATIONAL ORGANIZATIONS
Employees of an organization immuned from Philippines jurisdiction cannot unionize.
Examples: International Rice Research Institute(IRRI and International Catholic Migration Commission
(ICMC)
The grant of such immunity is a political question whose resolution by the executive branch of government
is conclusive upon courts.
5.1 Waiver of Immunity
Waiver of its immunity is discretionary to IRRI. Without such express waiver the NLRC have no jurisdiction
over IRRI even in cases of alleged illegal dismissal of any of its employees ( Callado vs. International Rice
Research Institute, G.R. No. 106483, May 22, 1995.)

5.2 Foreign Workers

Foreigners, whether natural or juridical, as well as foreign corporations, are strictly prohibited from
engaging directly or indirectly in all forms of trade union activities. However, aliens working in the country
with valid work permits may exercise the right of self-organization if they are nationals of a country that
grants the same or similar right to Filipino workers. (Article 269 LC)
6. EXCEPTION: RELIGIOUS OBJECTORS; IGLESIA NI CRISTO MEMBERS
In 1961, R.A. No. 3350 was passed to exempt from such compulsory union membership the followers of
any religious sect(such as INC) whose teachings forbid membership in labor unions. The constitutionality of
RA No. 3350 was upheld by the SC in
Victoriano vs. Elizalde Rope Workers union, et al., G.R. No. L-25246, September 12,
1974
What exception provides, therefore, is that members of said religious sects cannot be compelled or
coerced to join labor unions even when said unions have closed shop agreements with the employers; that
in spite of any closed shop agreement, members of said religious sects cannot be refused employment or
dismissed from their jobs on the sole ground that they are not members of the Collective bargaining union.
It may not be amiss to point out here that the free exercise of religious profession or belief is
superior to contract rights. In case of conflicts, the latter must, therefore, yield to the former.
Does the Exemption Still stand?
The question has not been squarely answered, but four points must be noted:

Firstly, the court cited the new labor code in rejecting the arguments assailing the validity of RA no 3350.
The sense is that the labor code and RA. No. 3350 do not repel each other
Secondly, the exemption can be invoked under the freedom of religion clause in the present constitutions
Bill of Rights.
Thirdly, in the decision rendered in 1988 in kapatiran vs. calleja the court refused to compel the INK
members to join the incumbent union.
Fourthly, in the case of ebralinag vs. division superintendent of cebu, G.R. No. 95770, march 1,1993, the
court in exempting jehovahs witnesses from compulsory participation in flag ceremonies, cited the
religious objectors similar exemption from compulsory union membership. Clearly, as recent as 1993, the
Sc acknowledges the existence or justification of the exemption granted by RA No. 3350 in 1961.
Iglesia ni Kristo Members may form and join own union
Kapatiran sa meat and canning division (tupas local chapter no. 1027) vs. the honourable BLR director
Pura Ferrer-Calleja, et al. G.R. No. L-82914, june 20, 1988.

Note: In a June 1992 decision, the SC held INK members have the right to vote in a certification election.
See reyes vs. trajano in the chapter on employee in collective bargaining.
ART. 244 RIGHT OF EMPLOYEES IN THE PUBLIC SERVICE
1. GOVERNMENT EMPLOYEES RIGHT TO ORGANIZE; LIMITATIONS
The highest law of the land guarantees to government employees the right to organize and to negotiate,
but not to strike.
Laws covering the government employees right to self-organize (Arizala, et al. vs. Court of
appeals, et al., G.R. Nos. L-43633-34,September 14, 1990
1. PD no. 807 The effect was seemingly to prohibit government employees(including those employed in
proprietary functions of the Government) to Strike for the purpose of securing changes of their terms
and conditions of employment,
2. 1987 constitution the right to self-organization shall not be denied to government employees.
3.CSC memorandum Circular No.6 enjoins strikes by government officials and employees.to allow
otherwise is to undermine or prejudice the government system.
4.EO No. 180 the right to self-organization does indeed pertain all employees of all branches,
subdivisions, Instrumentalities and agencies of the government, including government-owned or controlled
corporations with original charters.

6) Cimafranca 257-271
ART 253 [244]. RIGHT OF EMPLOYEES IN THE PUBLIC SERVICE
Employees of government corporations established under the Corporation Code Shall have the
right to organize and bargain collectively with their respective employers.
1. Government Employees right to organize limitations
-the highest law of the land guarantees to government employees the right to organize
and negotiate but not to strike.
Arizala, et.al. vs. CA
(Presidential Decree 807) The effect was to seemingly prohibit government employees
(including those involved in proprietary functions of the government) to strike for the
purpose of securing changes of their terms and conditions of employment something
which they were allowed to do under the Civil Service Act of 1959.
The 1987 Constitution the right to self-organization shall not be denied to government
employees.
CSC Memorandum Circular No. 6 the commission enjoins, under pain of
administrative sanctions, all government employees from staging strikes, demonstrations,
mass leaves, walkouts, and other forms of mass action which will result in temporary
stoppage or disruption of public services.
Executive Order No. 180
1.1
Limited Purpose under EO 180, the rights of self-organization between employees
of the government and those of the private sector differ greatly. PRIVATE SECTOR =
includes rights to deal and negotiate with their respective employers to fix
terms and conditions of employment, also they can engage in concerted
activities like strikes, boycotts, picketing. GOVERNMENT EMPLOYEES = not
available for purposes of collective bargaining but only for furtherance and
protection of their interests.
1.2
No Signing Bonus Employees and officers of the SSS are not entitled to signing
bonus. The SSS FUND is NOT the money of the OFFICIALS.
1.3
Excepted Employees Exception to EO 180, MEMBERS OF AFP, police officers,
policemen, firemen and jail guards. FOR REASONS OF SECURITY AND SAFETY
THEY ARE NOT ALLOWED TO UNIONIZE.
1.3A Professors and Rank and File Employees PROFESSORS OF THE
UNIVERSITY OF THE PHILIPPINES WHO ARE NOT EXERCISING
MANAGERIAL OR HIGHLY CONFIDENTIAL FUNCTIONS ARE RANK AND
FILE EMPLOYEES AND MAY UNIONIZE SEPERATELY FROM THE NON
ACADEMIC PERSONNEL.
1.4 Right to Strike Government employees may engage in concerted activities but must
be exercised in accordance with law.
2. Registration Government employees shall register with the CIVIL SERVICE COMMISSION
AND THE DOLE. THE APPLICATION SHALL BE FILED WITH THE BUREAU OF LABOR
RELATIONS OF THE DEPARTMENT. APPLICATIONS MAY ALSO BE FILED WITH THE
REGIONAL OFFICES OF THE DOLE WHICH WILL BE TRANSMITTED TO THE BLR WITHIN 3
DAYS FROM RECEIPT THEREOF.

3. Certification Election in Government Corporation A certification election to choose the union

that will represent the employees MAYBE CONDUCTED WITH THE BUREAU OF LABOR
RELATIONS IN A GOVERNMENT CORPORATION whether governed by the Labor Code or the
Civil Service Rules
4. When PSLMC my rule on illegality of dismissal THE PSLMC HAS JURISDICTION TO HEAR
CHARGES OF UNFAIR LABOR PRACTICES FILED BY GOVERNMENT EMPLOYEES AGAINST
THEIR EMPLOYER, THE CIVIL SERVICE COMMISSION MAY ADOPT THE FINDINGS OF THE
PSLMC AND ORDER THE EMPLOYER TO REINSTATE THE DISMISSED EMPLOYEES.
5. UNION BUSTING IN A GOVERNMENT AGENCY = UNFAIR LABOR PRACTICE (pamantasan case.
Sigeg mention sa libro pero walay summary)
5.1. Even temporary employees may organize (self-explanatory)
ART. 254 INELEGIBILITY OF MANAGERIAL EMPLOYEES
ORGANIZATION; RIGHT OF SUPERVISORY EMPLOYEES.

TO

JOIN

ANY

LABOR

managerial employees are not eligible to join, assist or form any labor organization.
Supervisory employees shall not be eligible for membership in the collective bargaining unit of
the rank and file employees but may join, assist, or form separate collective bargaining units
and/or legitimate labor organizations of their own. The rank-and-file union and the supervisory
union operating within the same establishment may join the same federation or national union.
ART. 255 [245-A] EFFECT OF INCLUSION AS MEMBERS OF THE EMPLOYEES OUTSIDE
THE BARGAINING UNIT
the inclusion as union members of the employees outside the bargaining unit shall not be
ground for the cancellation of the registration of the union. Said employees are automatically
deemed removed from the list of membership of said union.
1. categories of employees refer to ART 219 (3 classifications)
2. Ineligibility of managers the term managers refer to anyone who is responsible for
subordinates and other organizational resources
a. first line managers lowest level
b. middle managers direct the activities of other managers
c. top managers executives, responsible for overall management of the organization
there will be conflict of interest. Managers will not be assured of their loyalty to the union
because of the nature of their work in the establishment
3. Evolution of supervisors rights to organize unlike managers, supervisors can organize.
4. Definitions of Manager and Supervisor A supervisor has the power only to recommend while
a managerial employee has the power to decide and do those acts. A manager must possess
managerial powers (to lay down and execute management policies and/or to hire, transfer,
suspend, lay-off, recall, discharge, assign or discipline employees). If he can only recommend the
exercise of any of these powers he is only a supervisor.
-in short, a manager makes policy decisions or people decisions or both; a supervisor
recommends those decisions. One is a decision maker, the other, a recommender.

7) Cogue 272-286
Test of Supervisory Status

whether a person possesses authority to effectively recommend managerial actions in the

interest of his employer
whether such authority is not merely routinary or clerical in nature, but requires the use of
indepentdent action
when such recommendatory powers are subject to evaluation, review and final action, the
same, are not effective and not considered as an exercise of independent judgment as
required by law

Characteristics of managerial rank:

1
2
3
4
5
6

He is not subject to the riggid observance of regular office hours

His work requires the consistent exercise of discretion and judgment in its performance
The output produced or the result accomplished cannot be standardized in relation to a
given period of time
He manages a customarily recognized department or subdivision of the establishment,
customarily and regularly directing the work of the other employees there
He either has the authority to hire or discharge other employees or his suggestions and
recommendations as to hiring and discharging, advancement and promotions or other
change of status of other employees are given particular weight
As a rule, he is not paid hourly wages nor subject to maximum hours of work

The power to recommend

-

must not only be effective but should require the use of independent judgment
should not be merely of a routinary or clerical nature

Not incompatible with ILO Convention on Freedom of Association as long as:

1
2

That such workers have the right to form their own association to defend their interest
That the categories of such staff are not defined so broadly as to weaken the organization
of other owkers in the enterprise or branch of activity by depriving them of a substantial
portion of their present or potential membership

Segregation of rank-andfile and supervisors

-

Supervisory employees are allowed to form, join or assist separate labor organizations of
their own, but they are not eligible for membership in a labor organization of the rank-andfile employees. Neither may rank-and file join a union of supervisors
- It will be doubly detrimental to the employer if the supervisors and rank-and-file, as
members of only one union, could take a common stand against the employer.
Confidential employees
-

are those who assist and act in a confidential capacity to, or have access to confidential
matters of, persons who exercise managerial functions in the field of labor relations
(Philips case, GR No. 88957, June 25, 1992)
are those who by reason of their position or nature of work are required to assist or act in
a fiduciary manner to managerial employees and hence, are likewise privy to sensitive and
highly confidential records. (Metrolab case, GR No. 108855, Feb. 28, 1996)
do not constitute a distinct category of employees for purposes of the right to self-organize
confidentiality is not a matter of rank, it is a matter of job content and authority
every managerial position is confidential but not every confidential employee is
managerial; he may be a supervisory or even a rank-and-file employee
the confidentiality of the position should relate to labor relations (labor nexus)

In the Republic Planters Bank case, (GR No. 93468, Dec. 29, 1994)
-

The Court noted that while the Labor Code singles out managerial employees as ineligible
to join, assist, or form any labor organization, under the doctrine of necessary implication,
confidential employees are similarly disqualified

In the Metrolab case, (GR No. 108855, Feb. 28, 1996)

Issue: Whether or not executive secretaries, having vital labor information, where confidential
employees and should not be eligible to join in the bargaining unit of rank-and-file employees.

Ruling: These employees are confidential employees. By the very nature of their functions, they
assist and act in a confidential capacity to, or have access to confidential matters of, persons
who exercise managerial functions in the field of labor relations. As such, the rationale behind
the ineligibility of managerial employees to form, assist, or join a labor union equally applies to
them.

Forming part of the bargaining unit, the executive secretaries stand to benefit from any
agreement executed between the Union and Metrolab. Such a scenario, thus, gives rise to a
potential conflict between personal interests and their duty as confidential employees to act for
and in behalf of Metrolab. They do not have to be union members to affect or influence either
side.

Confidential employees cannot be classified as rank-and-file. The nature of employment of

confidential employees is quite distinct from the rank-and-file, thus, warranting a separate
category. Excluding confidential employees from the rank-and-file bargaining unit, therefore, is
not tantamount to discrimination.

In the case of San Miguel Corp., (GR No. 110399, Aug. 15, 1997)
-

Confidential employees are those who:

1 assist or act in a confidential capacity
2 to persons who formulate, determine, and effectuate management policies in the field
of labor relations.
The two criteria are cumulative, and both must be met if an employee is to be considered
a confidential employee- that is, the confidential relationship must exist between the
employee and his supervisor, and the supervisor must handle the prescribed
responsibilites realting to labor relations
Confidential employee rule: The broad rationale behind this rule is that employees should
not be placed in a position involving a potential conflict of interest
Access to information which is regarded by the employer to be confidential from the
business standpoint, such as financial information or technical trade secrets, will not
render an employee a confidential employee.
It must be access to confidential labor relations information.

New CBA may include employees excluded from old CBA; Expired CBA may be
modified, not just renewed.
-

Regardless of the swinging court rulings, the employer and the union in an enterprise may
negotiaite and agree whom to cover in their CBA. And they are free to change their
agreement: people excluded before may be included now, or vice-versa.

Security Guards may join rank-and-file or supervisors union

-

Under RA NO 7615, they may now freely join a labor organization of the rank-and-file or
that of the supervisory union, depending on their rank.

Workers in export processing zones

-

Export processing zones, anywhere in the Philippines, are part of Philippine territory which
is subject to its sovereignty and laws. To them therefore applies with undiminished force

the Philippine Constitution that guarantees the workers rights to organize, to strike and so
forth.
The zone workers cannot be denied these constitutional rights.
ILO titled Tripartite Declaration of Principles Concerning Multinational Enterprises and
Social Policy states: Where governments of host countries offer special incentives to
attract foreign investments, these incentives should not include any limitations on the
workers freedom of association or the right to organize and bargain collectively.

ART. 256. NON-ABRIDGMENT OF RIGHT TO SELF-ORGANIZATION.

Concept of the right to self-organization

-

Includes at least two rights

1 the right to form, join, assist labor organizations, and
2 the right to engage in lawful concerted activities
The labor organization may be a union or association of employees.
Its purpose may be collective bargaining or dealing with the employer.
The right to form labor organization is twin to the right to engage in concerted activity.
Although twins, they are not inseparable.
Such group action, which should be held peacefully to remain lawful, can similarly be for
collective bargaining purpose, but it can simply be for aid and protection of the members.
The peaceful group action, according to rulings, is an exercise of the right to freedom of
speech under the Bill of Rights.
The labor organization entitled to protection does not have to be a registered organization.
And it does not have to be the bargaining union.
The right to self-organization is granted not only to employees but to workers, whethere
employed or not. In fact, constitutionally speaking, the right to form associations or
societies is a right of the people, whether workers or not.
No person inside or outside of government, employer or non-employer, unionist or nonunionist may abridge these rights. If abridged in the workplace, the abridgement is
termed unfair labor practice (ULP).

8) Collados 287-301
NON-ABRIDGNENT OF RIGHT TO SELFORGANIZATION
NOTES:
Labor organization entitled to protection does not have to be a registered organization
and it does not have to be the bargaining union.
BUT, if UNREGISTRED it cannot claim the rights under ART. 250 [242] Rights of
legitimate labor organization because it does not possess legal representative status.
UNREGISTERED organization cannot sue in behalf of its supposed members.

RIGHT TO SELF-ORGANIZATION is granted not only to employees but to workers,

whether employed or not.
RIGHT TO FORM ASSOCIATIONS or SOCIETIES is a right of the people, whether
workers or not.

No person may abridge these rights. If abridge in the workplace, it is termed as Unfair
Labor Practice

Title VI
Unfair Labor Practice
Chapter 1 (CONCEPT)
ART. 257 [247] Concept of Unfair Labor Practice and
Procedure for prosecution thereof
NOTES:
Major aim of labor relations policy is INDUSTRIAL DEMOCRACY whose realization is most
felt in free collective bargaining or negotiation over terms and conditions of employment.
Self-organization is a prerequisite the lifeblood of industrial democracy, hence, any act
that aims to weaken or defeat said right is treated as an offense. The offense is technically called
Unfair Labor Practice.
Unfair Labor Practice is NOT unfair practice BY labor, rather, a practice unfair TO
labor.
OFFENDER in Unfair Labor Practice: either the (1) Employer, (2) Labor
Organization
VICTIM of Unfair Labor Practice: (1) workers as a body, (2) Employers who value
industrial peace, (3) People in general because the violation of the right to self-organization is
considered a PUBLIC OFFENSE which carries both civil and criminal liabilities.

UNFAIR LABOR PRACTICE (ULP) vs VIOLATION of EMPLOYER of its

CONTRACTUAL OBLIGATION (Breach of an obligation)
In ULP, it involves violation of public right or policy, hence, prosecuted like criminal
offenses.
In Breach of an obligation by the employer to his employees involves only a
contractual breach, hence, to be redressed like an ordinary contract or obligation.

ELEMENTS of UNFAIR LABOR PRACTICE at the

ENTERPRISE LEVEL (important)
1 There is Employer-Employee relationship between the offender and the offended
party.
REASON for such element:
Because U.L.P is negation of, a counteraction to, the right to organize
which is guaranteed to employees in relation to their employer. No labor
organizational right can be negated or assailed if employer-employee
relationship is absent.
2 The act done is expressly defined in the code as an act of unfair labor practice

Note:
ART. 258 and 273 are acts expressly defined as constituting
unfair labor practice of EMPLOYER.
ART. 259 contains acts expressly defined as constituting unfair
labor practice of LABOR ORGANIZATIONS.
All PROHIBITED acts are all related to the workers selforganizational right and observance of a collective bargaining
agreement, except art. 258(f) which refers to dismissing or
prejudicing an employee for giving testimony under this code.
U.L.P is and has to be related to the right to self-organization
and to the observance of the CBA, it follows that not every unfair act
is unfair labor practice.
Unfair Labor Practice, therefore, has a limited, technical meaning because it is a labor
relations concept with a statutory definition. It refers only to acts opposed to workers right to
organize. Without that element (referring to opposing to workers right to organize), the act, no
matter how unfair is not unfair labor practice as legally defined.

ANTI-UNIONISM when the unfair labor practice is committed by the EMPLOYER.

Prejudice to public interest is NOT an element of U.L.P. (see NUBE vs Hon. N.R.
Confessor GR. No. 114974, Jun 16, 2014.)

Prosecution of U.L.P
Art. 257 states that U.L.P has CIVIL and CRIMINAL aspects.
As to the CIVIL ASPECT it may include liability for damages and these may be
passed upon by a labor arbiter. What is required in Labor cases in the NLRC is only
SUBSTANTIAL EVIDENCE.
As to the CRIMINAL ASPECT for it to be prosecuted, there is still a NEED of the
FINALITY OF JUDGMENT in the LABOR CASE(civil aspect), finding that the alleged offender
indeed committed unfair labor practice. But such judgment will not serve as evidence of unfair
labor practice in the criminal case since such criminal charge must be proved independently
from the labor case. And that, PROOF BEYOND REASONABLE DOUBT is needed to convict in
the criminal case of unfair labor practice.
Jurisdiction of CRIMINAL CHARGE Municipal/Regional Trial Court.
Prescription of the CRIMINAL OFFENSE one (1) year. [CAVEAT: wala gi state
sa book if when mu start ug run ang 1 year, but I presumed nga 1 year from the commission of
the act.]

Chapter 2 (Unfair Labor Practices of

EMPLOYERS)
ART. 258 [248] Unfair Labor Practices of Employers (please
read)

NOTES:
Conditions precedent to U.L.P Charge
Before an employee maybe considered aggrieved by an alleged unfair labor
practice by an employer, it must be demonstrated, FIRSTLY, that the INJURED party comes
within the definition of employee as the term is defined by the code, and SECONDLY, the act
charged as U.L.P. must fall under the prohibitions of Art. 258 (acts of the employers) or Art. 259
(acts of the labor union).
EMPLOYEE includes any person in the employ of an employer. The term shall not
be limited to the employees of a particular employer, unless this code so explicitly states. It shall
include any individual whose work ceased as a result of or in connection with any current labor
dispute or because of any unfair labor practice if he has not obtained any other substantially
equivalent and regular employment. (Art. 219 [212] definitions)
Specific denomination of the objectionable act is not necessary to prosecute U.L.P. In
resolving the question of whether or not an employer committed the act charged in the
complaint, it is of no consequence, either as a matter of procedure or substantive law, how the
act is denominated whether restraint, interference or coercion, or as discriminatory discharge,
or as a refusal to bargain, or even as a combination of any or all of these. For however the
employers conduct may be characterized, what is important is that it constituted an unfair labor
practice.
International Labor Organization Convention No. 98 also frowns upon anti-union
discrimination and interference. (Pls. read ART. 1.1 and ART. 2.1 of said ILO Convention No. 98)
The law on unfair labor practices is not intended to deprive the employer of his
fundamental right to prescribe and enforce such rules as he honestly believed to be necessary to
the proper, productive, and profitable operation of his business (MANAGAMENT RIGHT). HENCE,
no ULP if there is VALID EXERCISE of MANAGEMENT RIGHTS.
EXAMPLES OF A VALID EXERCISE OF MANAGEMENT RIGHTS
1

Personnel Movements
As a rule, it is the prerogative of the company to promote, transfer or even
demote its employees to other position when the interests of the company
reasonably demand it.

Acceptance of Mass Resignation

Acceptance of Mass Resignation is NOT ULP. (see Enriquez vs Zamora, GR
No. 51382, Dec. 29, 1986)
PRINCIPLE behind the case: pilots protest
retirement/resignation was not a concerted activity which was protected
by law. They did not assume the status of strikers. They cannot, therefore,
validly claim that the company committed unfair labor practice. When the
pilots voluntarily terminated their employment relationship with the
company, they cannot claim that they were dismissed.

Grant of Profit-Sharing Benefits to Non-Union Members

Management has the prerogative to regulate, according to its discretion and
judgment, all aspects of employment. This flows from the established rule
that labor law does not authorized the substitution of the judgment of the
employer in the conduct of its business.
Such management prerogative may be availed of without fear of any liability
so long as it is exercised in good faith for the advancement of the employers
interest.

The grant by the employer of profit-sharing benefits to the employees outside

the bargaining unit falls under the ambit of its managerial prerogative.
There can be no discrimination committed by the employer as the situation of
the union employees is different from that of the nonunion employees.
Discrimination per se is not unlawful. There can be no discrimination
where the employees concerned are not similarly situated. (see Wise and
Co., Inc. vs Wise and Co., Inc. Employees Union, GR No. 87672, Oct.
13, 1989)

Forced Vacation Leave

The decision to resort to forced leaves was, under the circumstances, a
management prerogative.

5
6

Issuance of Rules or Policy

Taking Action Against Slowdown
Employees have the right to strike, but they have no right to continue
working on their own terms while rejecting the standards desired by their
employer. Hence, an employer does not commit an unfair labor practice by
discharging employees who engage in a slowdown, even if their object is a
pay increase which is lawful. Moreover, an employer does not violation the
act by discharging only some of the employees who participate in the
slowdown.

UNACCEPTABLE DEFENSE if found guilty of ULP is that his conduct was

UNINTENTIONAL and INNOCENT.

9) Degollacion 302-316
4. Determination of validity
Determining the validity of an employers act involves an appraisal of his motives. It is for
the NLRC, in the first instance, to weigh the employers expressed motive in determining the
effect of the employees of managements otherwise equivocal act.
(normally dw naai freedom ang employer on how to treat his employees without being asked to
justify why, pru if based on their history dw, ex. Active ang employee sa union activities nya
against jd ang employer, if naai reason to believe nga ang treatment sa employer sa employee
kai naai bias agi sa iyang pagka.active sa union then pwede ma.interfere ang freedom sa
employer) The failure of the employer to ascribe a valid reason therefor may justify an
interference that his unexplained conduct in respect of the particular employee was inspired by
the latters union membership or activities.

5. First ULP: interference

ULPs under article 258a
1
2
3
4
5

Interference
Yellow dog condition
Contracting out
Company unionism
Discrimination for or against union membership

6
7
8
9

Discrimination because of testimony

Violation of duty to bargain
Paid negotiation
Violation of CBA

Outright and unconcealed intimidation is the most obvious form of interference. Such conduct,
even if done only once, constitutes ULP and will support a cease and desist order by the Board.
(interference is usually done covertly/ discreetly. Basta dli ipaklaru)
The employees executed affidavits describing the meeting that they had with the management
which was requested by the employees to discuss certain matters. The affidavit was used as a
basis for a charge of grave slander against the management.
Management dismissed the employees for executing the affidavit claiming that it was an act of
breach of trust and confidence inimical to the interest of the company.
Ruling: management committed unfair labor practice in dismissing the employees. The dismissal
amounted to interference with, and restraint and coercion of, the petitioners in the exercise of
their right to engage in concerted activities for their mutual aid and protection. (the CBA was
about to be renegotiated, after the dismissal of some of the employees, wala nai nahibilin nga
officer sa union kai na.dismiss na tanan)

5.1 interrogation
Persistent interrogation of employees to elicit information as to what had happened at union
meetings and the identity of the active union employees was held as violative of organizational
rights of employees
When will the interrogation be deemed not coercive?
a
b
c

Employer must inform the employee the purpose of the questioning

Assure that no reprisal will take place
Participation in the questioning is voluntary

5.2 ULP even before union is registered

An employer who interfered with the right to self-organization before the union is registered can
be held guilty of ULP.
5.3 Prohibiting organizing activities
A rule prohibiting solicitation of union membership in company property is unlawful if it applies to
non-working time as well as to working time.
It is an ULP to discharge a supervisor because he refuses to commit unfair labor practices or
because the union activities of an employee, who happens to be the wife of the supervisor.
Examples of unlawful acts to discourage membership in labor organization:
a
b
c

Dismissal upon refusal to give up membership

Refusal over a period of years to provide salary adjustments as stipulated in the CBA
Dismissal on account of joining a union and engaging in union activities

CLLG E.G Gochangco workers union vs NLRC L-67158

5.4 violence or intimidation
Violations have been found where the employer threatened employees favoring union with force
or violence, as warning them against getting caught with a union leaflet
ULP is also committed when the employer asked the unions recruiter to surrender the union
affiliation forms and threatening him with bodily harm.
5.5 espionage and surveillance

This consists of using a small group employees, or other agents, inspired by profit, opportunism
or vengeance to use his/their access to employees quarters and affairs for the purpose of spying
upon few employees and reporting back to the employer.
(espionage and surveillance constitutes interference)
5.6 economic inducements
Announcement of benefits intended to induce the employees to vote against the union
constitutes interference.
5.7 employers expression of opinion; totality of conduct doctrine
The doctrine holds that the culpability of employer;s remarks was to be evaluated not only on the
basis of their implications, but against the background of and in conjunction with collateral
circumstances. Under this doctrine, expressions of opinion by an employer though innocent in
themselves, frequently were held to be culpable.
The insular lif assurance co., ltd., employees association, vs the insular life assurance co., ltd., L25291
5.8 mass layoff amounting to ULP
A companys capital reduction efforts, to camouflage the fact that it has been making profits, and
to justify the mass lay-off of its employees especially union members, were an unfair labor
practice which can neither be countenanced nor condoned.
Madrigal and company, Inc. vs Zamora L-4823

There is ULP when permanent teachers were dismissed because the president of the school
feared that if their contracts were renewed there would be a strike in the school the following
semester.

5.9 lockout or closure amounting to ULP

A lockout, actual or threatened, as a means of dissuading the employees from exercising their
rights under the labor code is clearly an ULP. But an honest closing of ones plant is not a
violation.
(if it is intended to interfere with the rights of the employees then it is an ULP)
5.9a closure, a subterfuge
An employer which closed its business to put an end to a unions activities, and which made no
effort to allow the employees attempt to exercise their right to self-organization and collective
bargaining, and even threatening the employees that they would lose their jobs if they did not
cease affiliation with the union, commits ULP.
Me-Shurn Corporation and Sammy Chou vs Me-shurn workers union GR 156292
5.9b sale in bad faith
Moncada Bijon Factory vs CIR and Moncada united workers union L-18065
Cruz vs PAFLU L-26519
5.9c Assumption of Obligations by New Company
PLASLU vs Sy indion rice and corn Mill L-18476
5.10 successor employer, piercing the corporate veil

Closure is likewise not legal and the employees cannot be separated if, in fact, there is no closure
because the closed department or company reappeared although under a new name. If the new
company is, for instance, engaging in the same business as the closed company or department,
or is owned by the same people, and the closure is calculated to defeat the workers
organizational right, then, the closure may be declared subterfuge and the doctrine of successor
employer will be applied, that is, the new company will be treated as a continuation or successor
of the one that closed. If such be the case, the separated employees will have to be employed in
the new firm because in the first place they should not have been separated at all.

H. Aronson Co., Inc. vs associated labor union L-23010

Second ULP: YELLOW DOG CONDITION

Contract provisions whereby an employee agrees that during the period of his employment he
will not become a member of a labor union have been outlawed in the united states.
The yellow dog contract is a promise exacted from workers as a condition of employment that
they are not to belong to, or attempt to foster, a union during their period of employment.
A typical yellow dog contract usually includes the following provisons:
a
b
c

A representation by the employee that he is not a member of a labor union

A promise by the employee not to join a labor union
A promise that upon joining a union, he will quit his employment

In the Philippines, such a contract is considered an ULP by express provision of the law.

10) Felicia 317-331

ULP
7.1 Contracting Out Restricted by CBA
Shell Oil Workers Union v. Shell Company of the Phils., Ltd. GR No. L-28607, May 31, 1971
Facts: Shell Company dissolved its security guard section and replaced it with an outside agency,
claiming that such act was a valid exercise of management prerogative. The Union argued
otherwise, relying on the CBA provision which assured the continued existence of a security
guard section at least during the lifetime of the collective agreement.
Issue: Whether the then existing collective bargaining contract constituted a bar to such a
decision reached by management.
Ruling: The answer must be in the affirmative As correctly stressed in the brief for the petitioner
union, there was specific coverage concerning the security guard section in the collective
bargaining contract. It was thus an assurance of security tenure, at least, during the lifetime of
the agreement. Nor is it a sufficient answer, as set forth in the decision of the respondent Court,
that while such a section would be abolished, the guards would not be unemployed as they
would be transferred to another position with an increase in pay and with a transfer bonus. For
what is involved is the integrity of the agreement reached, the terms of which should be binding
on both parties. One of them may be released, but only with the consent of the other. The right
to object belongs to the latter, and if exercised, must be respected. Such a state of affairs should
continue during the existence of the contract. Only thus may there be compliance with and
fulfillment of the covenants in a valid subsisting agreement. As far back as 1964, Shell Company
had already been studying the matter of dissolving the security guard section and contracting
out such service to an outside agency. Nonetheless, on August 26, 1966, a collective bargaining
contract was entered into which did assure the continued existence of the security guard section.
The Shell Company did not have to agree to such a stipulation. Or it could have reserved the
right to effect a dissolution and reassign the guards. It did not do so. Instead, when it decided to
take such a step resulting in the strike, it would rely primarily on provisions in the collective

bargaining contract couched in general terms, merely declaratory of certain management

prerogatives. Considering all this, there can be no justification for Shell Companys insistence on
pushing through its project of suh dissolution without thereby incurring a violation of the
collective bargaining agreement.
7.2 Runaway Shop
Runaway shop- an industrial plant moved by its owners from one location to another to escape
union labor regulations or state laws but the term is also used to describe a plant removed to a
new location in order to discriminate against employees at the old plant because of their union
activities. It also refers to business relocation animated by anti-union animus.
Where plant removal is for business reasons but the relocation is hastened by anti-union
motivation, the early removal is an unfair labor practice. Sameness of business is not reason
enough to show run-away shop to pierce the veil of separate corporate entity.
The mere fact that one or more corporations are owned or controlled by the same or single
stockholder is not sufficient ground for disregarding separate corporate personalities. The basic
rule is that mere ownership by a single stockholder or by another corporation of all or nearly all
of the capital stock of a corporation is not of itself sufficient ground for disregarding the separate
corporate personality. In the present case, there was also a complete cessation of the business
operations. (Complex Electronics Employees Association v. NLRC, et al. GR#: 121315, July
19,1999)
4th ULP: COMPANY-DOMINATION OF UNION [Art. 248(d)]
Domination of labor union usually manifests in the following forms:
1 Initiation of the company union idea
3 styles:
a Outright information by the employer or his representatives;
b Employee information on outright demand or influence by employer;
c Managerially motivated formation by employees
2 Financial support to the union;
3 Employer encouragement and assistance;
4 Supervisory assistance
Other manifestations:
1 Key officials of the company have been forcing the employees belonging to a rival union to
join the company-dominated union under pain of dismissal should they refuse to do so;
2 Key officials of the company, as well as its legal counsel, have attended the election of
officers of the company-dominated union;
3 Officers and members of the rival union were dismissed allegedly pursuant to a
retrenchment policy of the company, after they had presented demands for the
improvement of the working conditions despite its alleged retrenchment policy;
4 After dismissal of the aforesaid officers of the rival union, the company engages the
services of new laborers.
5th ULP: DISCRIMINATION [Art. 258(e)]
What the law prohibits is discrimination to encourage or discourage membership in a labor
organization. Where the purpose is to influence the union activity of employees, the
discrimination is unlawful. But discrimination is not the same as differentiation or classification.
Under the Industrial Peace Act (as under the present Labor Code), the discrimination committed
by the employer must be in regard to the hire or tenure of employment or any term or condition
of employment to encourage or discourage membership in any labor organization.
Discrimination occurs when a union member, involved in union activity, is treated differently
from a non-union worker. Antiunion animus is found when the employers conduct is not
motivated, or at least is not entirely motivated by legitimate and substantial business reasons
but by a desire to penalize or reward employees for union activity or the lack of it. Discouraging
membership in a labor organization includes not only discouraging adhesion to union
membership but also discouraging participation in union activities such as a legitimate strike.
Forms:
1 Discrimination in Work Quota
In one case, the pharmaceutical company increased the sales quota of the union president
and vice-president to 400% and 300%, respectively, unlike those of the other field
representatives whose sales quota the company increased by an average of 98% only. The
company could not give a valid explanation for such marked difference.
2

Discrimination in Bonus Allocation

There is unfair and unjust discrimination in the granting of salary adjustments where the
evidence shows that (a) the management paid the employees of the unionized branch; (b)
where salary adjustments were granted to employees of one of its nonunionized branches
although it was losing in its operations; and (c) the total salary adjustments given every
ten of its unionized employees would not even equal the salary adjustments given one
employee in the nonunionized branch.
3

Discrimination in Layoff or Dismissal

Discriminatory dismissal- even where business conditions justified a layoff of employees,
only the unionists were permanently dismissed while nonunionists were not.
The manner in which the prerogative is exercised should not be tainted with abuse of
discretion. Labor is a persons means of livelihood. He cannot be deprived of his labor or
work without due process of law. Retrenchment should not be oppressive and abusive
since it affects ones person and property. Due process of law demands nothing less.
(Bataan Shipyard and Engineering Co., Inc. v. NLRC, GR#: L-78604, May 09, 1988)

Discrimination in Regularization
The complainants are pre-war employees and notwithstanding their length of service
without any indication that they had committed any improper act or behavior, have never
been given any permanent status while others who entered the service in 1957 and 1959
in the same capacity as bus workers or truck helpers were readily given the status. It was
held that the only reason that can be advanced for such indifferent attitude towards
complainants is the fact that they are affiliated with the complainant union which
apparently does not have the sympathy of their employer. (Manila Railroad Co., et.al. v.
Kapisanan ng mga Manggagawa sa Manila Railroad Co., et.al., GR#: L-19728, July 30,
1964)

Discrimination by Blacklisting
Blacklist- a list of persons marked out for special avoidance, antagonism or enmity on the
part of those who prepare the list, or those among whom it is intended to circulate.
When it is resorted to by a combination of employers to prevent employment of
employees for union activities, it may constitute ULP and a right of action for damages.
Where in circulating a list of former employees of notorious laziness or negligence in the
performance of their duties an employee is excluded, the excluded employee possesses
no right of action because the employers community of interest acts both to justify the
combination and to privilege the communication, unless the action of the employers in
combining or in passing communications among themselves for the purpose of excluding
unwanted workers from employment constitutes libel or slander (and in order to be
actionable must be malicious).

Test of Discrimination:
In order to determine whether or not a discharge is discriminatory, it is necessary that the
underlying reason for the discharge be established. The fact that a lawful cause for discharge is
available is not a defense where the employee is actually discharged because of his union
activities. If the discharge is actually motivated by a lawful reason, the fact that the employee is
engaged in union activities at the time will not lie against the employer and prevent him from the
exercise of his business judgment to discharge an employee for cause. (NLRB v. Ace Comb Co.,
342 F. 2 841)
Where circumstances establish a discriminatory motive on the part of the employer, the
assignment of a just cause will be unavailing if it cant be established that the true and basic
inspiration for the employers act is derived from the employees union affiliations or activities,
the assignment by the employer of another reason , whatever its semblance of validity, is
unavailing.
6

Constructive Discharge- where the employer prohibits employees from exercising their
rights under the Act, on pain of discharge, and the employee quits as a result of the
prohibition.

Discharge due to Union Activity, a Question of Fact:

The question of whether an employee was discharged because of his union activities is
essentially a question of fact as to which the findings of the Court of Industrial Relations are
conclusive and binding if supported by substantial evidence considering the record as a
whole.

Substantial evidence- such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion. It means such evidence which affords a substantial basis from which
the fact in issue can be reasonably inferred.
Valid Discrimination: UNION SECURITY CLAUSE
Union Security Clause- a compulsory union membership that essentially requires membership
in the union so that the employee may retain his job and the unions existence is assured.
*In a sense, there is discrimination when certain employees are obliged to join a particular
union. But it is discrimination favoring unionism; it is a valid kind of discrimination.
Kinds of Union Security Agreements:
1 Closed-shop- only union members can be hired by the company and they must remain as
union members to retain employment in the company.
2 Union Shop- nonmembers may be hired, but to retain employment must become union
members after a certain period. The requirement applies to present and future employees.
3 Modified Union Shop- employees who are not union members at the time of signing the
contract need not join the union, but all workers hired thereafter must join.
4 Maintenance of Membership Shop- no employee is compelled to join the union, but all
present or future members must, as a condition of employment, remain in good standing
in the union.
5 Exclusive Bargaining Shop- the union is recognized as the exclusive bargaining agent for
all employees in the bargaining unit, whether union member or not.
6 Bargaining for Members Only: the union is recognized as the bargaining agent only for its
own members.
7 Agency Shop- an agreement whereby employees must either join the union or pay to the
union as exclusive bargaining agent a sum equal to that paid by the members. This is
directed against free rider employees who benefit from union activities without
contributing financially to union support.
*the above variations are opposite of open shop- an arrangement which does not require union
membership as a condition of employment
Validity of Closed-Shop Agreement
Disaffiliation from a labor union is legally allowed because it is implicit in the freedom of
association ordained by the Constitution. A closed-shop, however, is a valid form of union
security, and such provision in a collective bargaining agreement is not a restriction of the right
of freedom of association guaranteed by the Constitution
Closed-shop agreement- is one whereby the employer binds himself to hire only members of the
contracting union who must continue to remain members in good standing to keep their jobs. It
Is the most prized achievement of unionism.
The State promotes unionism to enable the workers to negotiate with management on the same
level and with more persuasiveness than if they were to individually and independently bargain
for the improvement of their respective conditions. To this end, the Constitution guarantees to
them the rights to self-organization, collective bargaining and negotiations and peaceful
concerted actions, including the right to strike in accordance with law. These purposes could be
thwarted if every worker were to choose to go his own separate way instead of joining his coemployees in planning collective action and presenting a united front when they sit down to
bargain with their employers.
Purposes or Reasons of Closed-shop agreement:
1 Means of encouraging the workers to join and support the labor union of their own choice
as their representative in the negotiation of their demands and the protection of their
interests vis--vis the employer;
2 Principle of sanctity or inviolability of contracts- freedom of employees to organize
themselves must be subordinated to the constitutional provision protecting the sanctity of
contracts

11) Galia 332-346

9.10c Advantages and Disadvantages of Closed-shop Agreement
A closed shop agreement is advantageous because it
a. Increases the strength and bargaining power of labor organization
b. Prevents non-union workers from sharing in the benefits of the unions activities
without also sharing its obligations
c. Prevents the weakening of labor organizations by discrimination against union
members.
d. Eliminates the lowering of standards caused by competition with non-union workers.
e. Enables labor organizations effectively to enforce collective agreements.
f. Facilitates the collection of dues and the enforcement of union rules.
g. Creates harmonious relations between the employer and the employee.
But it is disadvantageous as it
a. Results in monopolistic domination of employment by labor organizations.
b. Interferes with the freedom of contract and personal liberty of the individual worker
c. Compels employer to discharge all non-union workers regardless of efficiency,
length of service, etc
d. Facilitates the use of labor organizations by unscrupulous union leaders for the
purpose of extortion, restraint of trade, etc.
e. Denies to non-union workers equal opportunity for employment.
f. Enables union to charge exorbitant dues and initiation fees.
9.10d Enforcement of Union Security Clause upon Corporate Merger
In the case of BPI vs BPI Employees Union-Davao Chapter-Federation of Unions in BPI Unionbank
the High Court is divided. Seven justices voted to apply the union security clause to the
employees of Far East Bank and Trust Co. whose assets and liabilities were transferred to and
absorbed by BPU as the surviving corporation. Six justices disagreed--Majority: It is the policy of the State to promote unionism and stressing that human
beings are never embraced in the term assets and liabilities, believe that the absorbed
employees may be considered new employees as contemplated in the union security clause.
The Union shop clause in the CBA statesnew employees who during the effectivity of the
CBA may be regularly employed by the Bank must join the union within 30 days from their
regularization. Nothing in the clause limits the application to only new employees who possess
non-regular status. In other words, the term new employee as used in the clause is used broadly
without any qualification.
PRINCIPLE: Art. 248e in point mandates that nothing in the said code or any other law
should stop the parties from requiring membership in a recognized collective bargaining agent as
a condition of employment.

9.10e Valid Dismissal Because of Application of Union Security Clause

Union security clauses in CBA if freely and voluntarily entered into are valid and binding.
Thus, dismissal by the company pursuant to a labor unions demand in accordance with a
union security clause does not constitute ULP.
Even if unaware of the closed-shop stipulation, they are bound by it.
Ignorance or dissatisfaction would justify breach thereof.

Union members though entitled to disaffiliate from their union and to form a new
organization of their own, must suffer the consequences of their separation from the union
under the security clause.

CASE: Tanduay Distillery Labor Union v NLRC

Stipulated in their CBA that all workers who become members of the union must
maintain membership in good standing as a condition of continued employment.
Other members joined another union thereby terminated.
Issue: WON employer was justified in terminating private respondents employment
based on TDLUs demand to enforce CBA union security clause
Court said employer did nothing but to put into force their agreement.
Such stipulation is necessary to maintain loyalty and preserve the integrity of the
union.
It is an indirect restriction of the right of an employee to self-organization.
It is a policy that while an employee is given the right to join labor organization,
such right should only be asserted in the manner that will not spell the destruction
of the same organization.

9.10f Dismissal Pursuant to Closed-shop Clause Must Clearly Appear in Contract

To validly dismiss under the union security clause, there should be a clear and unequivocal
statement that the loss of the status of a member of good standing in the union shall be a
cause for dismissal.
Where the union security clause in the collective bargaining agreement merely provided
that the employer shall have in its employ and continue to employ members in good
standing of the union and that it will not employ nor hire any new employee or labourer
unless he is a member of god standing in the union, such clause does not reflect a closed
shop agreement, for the reason that it does not expressly and unequivocably require
membership in the union as a condition for continuance in employment. The terms employ
as well as have in its employ cannot be read as requiring the employer to retain in the
service ONLY members of union in good standing.

9.10g Due Process Required in Enforcing Union Security Clause; Intra-union Matter becomes
Termination Dispute with Employer

Although a union security clause in a CBA may be validly be enforced and dismissal
pursuant thereto may likewise be valid, this does not erode the fundamental requirement
of due process.
While it is true that the issue of expulsion of the local union officers is originally between
the local union and the federation, hence, intra-union in character, the issue was later on
converted into a termination dispute when the company dismissed the petitioners from
work without the benefit of a separate notice and hearing.

9.10h Liability of Union to Pay Wages and Fringe Benefits of Illegally Dismissed Employee

Where the employer compelled the employee to go on forced leave upon recommendation
of the union for alleged violation of the close-shop agreement, the NLRC correctly ordered
the reinstatement of the employee and directed the union to pay the wages and fringe
benefits which the employee failed to receive as a result of her forced leave and to pay
attorneys fee.

9.10i Employer in Good Faith Not Liable

Where the employer dismissed his employees in the belief in good faith that such
dismissal was required by the close-shop provsions of the collective bargaining contract
with the union, he may not be ordered to pay back compensations to such employees
although their dismissal is found to be illegal.

9.11 Exemption from Compulsory Membership

All employees in the bargaining unit covered by a closed-shop clause in a CBA are subject
to its terms, except the following:
(1) Religious objectorsThese are members of a religious sect that prohibits
membership in a labor union
(2) Members of minority unionto hold that the employees in a company who are
members of a minority union may be compelled to disaffiliate from their union and
join the majority or contracting union, would render nugatory the right of all
employees to self organization and to form, join or assist labor organizations of their
own choosing.
(3) Confidential Employeesthey are outside the bargaining unit being represented by
the bargaining union. The CBA does not apply to them.
(4) Employees expressly excluded by CBA stipulation

9.12 Agency Fee Instead of Union Membership

The employees who are benefitting from the CBA because they are part of the bargaining
unit, without being members of the bargaining union, may be required to pay agency fee.
Recognized under Article 258e
A written authorization from the non-union employee is NOT required. The employees
acceptance of the benefits from a collective bargaining agreement justifies the deduction
of agency fees from his pay and the union[s entitlement thereto.
Quasi-contractualbecause employees may not unjustly enrich themselves by benefiting
from employment conditions negotiated by the bargaining union.
The fee is collectible only from employees deriving economic benefits from the unionnegotiated CBA
Treasury shop- employees both members and non-union members shall contribute toward
the cost of collective bargaining and should not be allowed to benefit from the collective
bargaining process without supporting it financially.

10 SIXTH ULP: DISCRIMINATION BECAUSE OF TESTIMONY ARTICLE 258 F

By protecting the employees right to testify, the law therefore shields the workers right to
self-organization from indirect assault by the employer.
Thus it is ULP to dismiss, discharge or otherwise prejudice or discriminate against an
employee for having given or being about to give testimony under this Code.
It violates right to engage in concerted activity.
Concerted activity does not always require a number of people acting in unison it is
enough that an employee acting alone in pursuing a group interest may be said to be
dong a concerted activity which the employer may not curtail.

10.1 Refusal to Testify

The employers retaliation against employee who refuses to testify in favour of the
employer is an ULP
Mabeza v. NLRC---o Employee refused to follw the employers instruction to go to the City Prosecutors
Office to swear the truth of the statement he signed after an order was given to him
to sign a document stating that he was receiving the provisions of labor standards
on wages etc. As a result she was told to turn over the key of her living quarters
back to the employer. Then, she was dismissed for loss of confidence.
o THE COURT RULED---- the acts were tainted with evident bad faith and deliberate
malice on the petitioners summary termination from employment.
o The act of compelling employees to sign an instrument indicating that employer
observed labor standards provisions of law when he might not have, together with
the act of terminating or coercing those who refuse to cooperate with the
employers scheme, constitutes unfair labor practice.
o Analogous to the situation envisaged in Article 248f which distinctly makes it an ULP
to dismiss, discharge, or otherwise prejudice or discriminate against an employee
for having given or being about to give testimony.

10.2 Labor Standards Violation, if Coupled with Retaliation, May Lead to Strike

Article 118 (retaliatory measures of ER; refusal to pay and/or reduce wage) and Article
258f are related. They both speak of employees filing a complaint or giving of testimony.
However 118 is limited to matters about wages, on the other hand article 258 covers any
issue in the Code.
If Labor Standards are violated and the employer does not retaliate against the employees
who reported the violations, there are no unfair labor practice and no strikeable situation.
Ergo, it is plausible therefore that a strike can be traced proximately to labor standards
violation. To say that labor standards violation is not strikeable is true only if there is no
retaliation from the employer that amounts to ULP.

11. SEVENTH ULP: VIOLATION OF THE DUTY TO BARGAIN

12. EIGHTH ULP: PAID NEGOTIATION

Self organization is a treasured right of workers. The law zealously shields them from
corruption. It is ULP for the employer to pay the union or any of its officers or agents any
negotiation fee or attorneys fee as part of settlement in collective bargaining or any labor
dispute.
It is ethically reprehensible.

13. NINTH ULP: VIOLATION OF THE CBA

Implementation is still part of the bargaining process which it should be recalled, rests on
the parties duty to bargain.
The duty to bargain requires good faith. And good faith implies faithful observance of what
has been agreed upon.
It logically follows that noncompliance with the agreement is non-observance of good faith
in bargaining; therefore, the noncompliance amounts to ULP.
HOWEVER, such violation must be GROSS as stated in Article 273.

14. RELIEF IN ULP CASES

14.1 Cease and Desist Order

If the Court after investigation finds that the person named in the complaint has engaged
or is engaging in any unfair labor practice, then the Court shall state its findings of fact
and shall issue or cause to be served upon such person an order requiring him to cease
and desist from such unfair labor practice and take such affirmative action as will
effectuate the policies of the Act including the reinstatement of employees with or without
back pay and including rights of the employees prior to dismissal, including seniority.
The Court is not authorized to issue blank cease and desist orders, but must confine its
injunction orders to specific act or acts which are related to past misconduct.
A cease or desist order is not invalidated because an act complained of was voluntarily
discontinued prior to or during the course of proceedings. However, if the act complained
of happened so long a time that theres no longer any threat or probability of a recurrence,
a cease and desist order will not be justified.

14.2 Affirmative Order

The Court does not only have the power to issue negative or prohibitive orders but also
affirmative or positive orders.
The Court may issue an affirmative order to the respondent to reinstate an employee
dismissed discharged or otherwise prejudiced against for having filed against or for having
given testimony.

14.3 Order to Bargain; Mandated CBA

If an employer has failed or refused to bargain with the proper bargaining agent of his
employees, the Court may, in addition to the usual cease and desist orders, issue an
affirmative order to compel the respondent to bargain with the bargaining agent.
In one case, the Court has upheld the ruling imposing a collective bargaining contract
upon an employer who refused to bargain with the union of its employees.

14.4 Disestablishment

Where the employer had initiated, dominated or assisted in or interfered with the
formation or establishment of any labor organization or contributed financial or other
support to it, the Court may issue, in addition to a cease and desist order, an order
directing the employer to withdraw all recognition from the dominated labor union and to
disestablish the same.
The order to disestablish a company-dominated union does not necessarily impose upon
the employer the duty of dissolving and liquidating the structure and organization of the
objectionable union. Rather, an order for disestablishment comprehends and ordains the
withdrawal of recognition of such labor organisation as the employees bargaining agent
and a bona fide and sufficient communication to the employees of such withdrawal of
recognition of such organization by the employer.

15. ULP IS NOT SUBJECT TO COMPROMISE

ULP is not subject to compromises. The relation between capital and labor are not merely
contractual. They are so impressed with public interest that labor contracts must yield to
the common good.
But in 1997, SC held and affixed the stamp of approval to a compromise settling a ULP
based strike. It explained, while we do not abandon the rule that unfair labor practice acts
are beyond and outside the sphere of compromises; the agreement herein was voluntarily
entered into and represents a reasonable settlement; thus it binds the parties.

16. ULP IN A GIVEN PERIOD SHOULD BE INCLUDED IN SINGLE CHARGE

The union should not, upon dismissal of the chares first preferred in an acts of unfair labor
practice allegedly committed during a given period of time, be allowed to split its cause of
action and harass the employer with subsequent charges, based upon acts committed
during the same period of time.

17. EMPLOYERS RESPONSIBILITY FOR ULP ACTS BY SUBORDINATE OFFICIALS

No stringent rules. The peculiar circumstances of each case were considered controlling.
Where the facts in the case made doubtful the propriety or equity of imputing to the
employer responsibility for the acts of a particular employee, the following considerations
were often employed in deciding the issue:
o Knowledge by the employer of the employees improper acts: Where it appears that
ER was aware of the EEs wrongdoing, his failure to prevent continuation of the
course of conduct or his failure to renounce any connection or affinity therewith,
invited the imputation of fault and responsibility to the employer.
o Continuity of improper conduct by the employer: A single utterance by a
supervisory employee, whether improvident or deliberate on the employees part,
was not ordinarily, and in the absence of proof of actual authority, held to be
sufficient to convict an employer of an unfair labor practice.
HOWEVER, if continued, repeated, or widespread activities in affront of the
rights of the body of employees made by the supervisory employee, there is
an ample justification for ascribing knowledge and blame to the employer.
o Employers past policy and attitude: It has been held that, among other things, the
similarity between the past attitude or policy of the employer and that of the
offending supervisory employee might, in certain cases be indicative of a concert of
effort between the two.

12) Gupana 347-361

ART. 259 (249)
Notes:

1 RESTRAINT OR COERCION BY LABOR ORGANITZATION; INTERFERENCE BY UNION

IS NOT U.L.P.
-... the congressional concern is with means, not ends and the intention is to fix the rules
of the game and to insure that strikes and other union organizational activities are
conducted peaceably by persuasion and propaganda and not by physical force, threats of
force, or threats of economic reprisal
- Interference by labor organization is not U.L.P. because interfering in the exercise of the
right to organize is itself a function of self-organizing.
1

Coercing Participation in Strike

- A union violates (the law) when, to restrain or coerce nonstrikers from working
during a strike, it assaults or threatens to assault them, threatens them with loss
of their jobs, blocks their ingress to and egress from the plant, damages
nonstrikers automobiles or forces them off the highway, physically prevents
from working, or sabotages the employers property in their presence, therby
creating a general atmosphere of fear of violence and threatening the
nonstrikers jobs.
- However, verbally accusing nonstrikers, such as by calling them scabs, has
been held not to violate (the law) unless the verbal abuse occurs under such
circumstances as to imply a threat of violence in the words.

2 UNION-INDUCED DISCRIMINATION
-The forbidden discrimination may refer to terms of hiring or firing, in layoff, in seniority, or
in benefits.
1

Arbitrary Use of Union Security Clause

Salunga vs Court of Industrial Relations
-Union may not arbitrarily exclude qualified applicants for membership or deny
readmission.
-Needless to say, if said union may be compelled to admit new members who have
the requisite qualifications, with more reason may the law and the courts exercise
the coercive power when the employee involved is a long standing union member
who, owing to provocations of union officers, was impelled to tender his resignation,
which he forthwith withdrew or revoked.
- Company was not guilty of unfair labor practice
- In the case at bar, the company was reluctant if not unwilling to discharge
petitioner.
- Having been dismissed from the service owing to an unfair labor practice on the
part of the union, petitioner is entitled to reinstatement as member of the union and
to his former or substantially equivalent position in the company, without prejudice
to his seniority and/or rights and privileges, and with back pay, which back pay shall
be borne exclusively by the union.
Manila Mandarin Employees Union vs NLRC
- A union member may not be expelled from her union, and consequently from her
job, for personal or impetuous reasons or for causes foreign to the closed-shop
agreement and in a manner characterized by arbitrariness and whimsicality.
- This is particularly true in this case where Ms. Beloncio was trying her best to
make a hotel bus boy do his work promptly and courteously so as to serve hotel
customers in the coffee shop expeditiously and cheerfully. Union membership
does not entitle waiters, janitors, and other workers to be sloppy in their work,
inattentive to customers, and disrespectful to supervisors.
- The union should have disciplined its erring and troublesome members instead
of causing so much hardship to a member who was only doing her work for the
best interests of the employer, all its employees, and the general public whom
they serve.

Not Disloyalty to Ask Help from Another Union

Rance, et al. Vs NLRC

- The mere act of seeking help from NAFLU cannot constitute disloyalty as
contemplated in the Collective Bargaining Agreement. At most it was an act of
self-preservation of workers who, driven to desperation, found shelter in the
NAFLU who took the cudgels for them.

3 REFUSAL TO BARGAIN
- U.L.P. under Article 249(c) is intended to insure that unions approach the
bargaining table with the same attitude of willingness to agree as the Act
requires of management.

FEATHERBEDDING AND MAKE-WORK ARRANGEMENTS

- Article 249 (d) refers to featherbedding, a term given to employee practices
which create or spread employment by unnecessarily maintaining or
increasing the number of employees used, or the amount of time consumed, to
work on a particular job.

5 CBA DEAL WITH EMPLOYER

- Asking for or accepting some fee from the employer as part of CBA or dispute
settlement is condiered U.L.P. by the union under paragraph (e) of this article.

ART. 260 (250)

1 NATURE OF COLLECTIVE BARGAINING
1 Definition
- Collective bargaining or negotiations towards collective agreement is a
democratic framework to stabilize the relation between labor and management
to create a climate of sound and stable industrial peace.
- ... includes four related but distinguishable processes: (1) negotiation between
representatives of the management and the union over wages, hours, and other
terms... of employment; (2) the execution of a written contract
embodying the terms agreed upon: (3) negotiation of any question arising as
to the interpretation or application of the contract; and (4) negotiation over the
terms of a new contract or proposed modifications, when an existing agreement
is validly opened for negotiations.
- ... refers to a contract executed upon request of either the employer or the
exclusive bargaining representative of the employees incorporating the
agreement reached after negotiations with respect to wages, hours of work and
all other terms and conditions of employment, including proposals for adjusting
any grievances or questions under such agreement.
2 Rationale
-direct government regulation of wages and hours, workingmens compensation,
health and safety, and social insurance, while important, hits only at the extremes.
- The rules which most vitally affect workers in their daily lives remain to be made
for each industrial establishment either by the employers fiat or by collective
agreements negotiated and administered jointly by the employer and its employees
as a group.
1.3 Strength of the Collective Bargaining Method
- ... it provides an orderly procedure by which each side can seek to present to the
other the best possible case for the satisfaction of its particular demands. There is no
guarantee of an agreed outcome, but he process of negotiation creates at least the
possibility that each side may move closer to the attainment of its own separate

objectives while contributing to the attainment of those that are shared with the other
side.
2.

EMERGENCE OF COLLECTIVE BARAGAINING

-First, in Great Britain, but not much later in other countries, working men sought to
protect themselves against the harsh effects of new machines, new methods of production, new
divisions of labor and new intensities of competition by forming organizations capable of
representing their interests as a group vis-a-vis employers and the State.
-The resistance of many employers to engaging in joint dealings with their workers was
powerfully reinforced by public policy, which in several countries derived its phiolosophical
justification from the anti-cominbation principles of economic liberalism.
-However, in some countries by the turn of the century, and in most of the rest during the
1920s and 1930s, public policy had swung around to at least a benevolent tolerance of collective
bargaining, and increasingly even to its active promotion.

2.1 Orginator
-The practice of collective bargaining itself had existed well before the name came into
existence, some early forms of collective bargaining being known as arbitration or conciliation
even though no neutral third parties took part in the proceedings.
-The credit for coining the expression belongs to Beatrice Webb.

2.2 Adoption in the Philippines

- In the Philippines the idea of collective bargaining first gained formal and official
recognition through C.A. No. 213.. Entitled An Act to Define and Regulate Legitimate Labor
Organization,..
-But it is the Industrial Peace Act (R.A. No. 875, approved by President Elpidio Quirino on
June 17, 1953), that defined collective bargaining and outlined its procedure.

3 PARTIES TO COLLECTIVE BARGAINING

- But the Implementing Rules of Book V, as amended by D.O. No. 09 and further
by D.O. No. 40-03, has dropped officer or agent. It defines Exclusive
Bargaining Representative as any legitimate labor organization duly
recognized or certified as the sole and exclusive bargaining agent of all the
employees in a bargaining unit. The bargaining representative of the employees
is an entity the union - and not the officers of the union. The entity remains
though the officers are changed.

13) Herrera 362-376

(continuation from page 361)

Jurisdictional preconditions of collective bargaining:

1) Possession of the status of majority representation of the employees representative in
accordance with any of the means of selection or designation provided for by the Labor
Code
2) Proof of majority representation It is not an unfair labor practice for an employer to
refuse to negotiate until the asserted bargaining agent has presented reasonable proof of
majority representation. Such demand should be made in (a) good faith and (b) not merely
as a pretext for delay or evasion.

3) A demand to bargain under Art 250 (a) of the Labor Code An employer is not in default
respecting the duty to bargain until a request therefor has been made by the union
If the three jurisdictional preconditions are present, the collective bargaining should
begin within 12 months following the determination and certification of the
employees exclusive bargaining representative. This is called the certification
year. IMPORTANT
GR: Employer commits ULP by refusing to bargain during the certification year.
X: If there are unusual circumstances.
Employee turnover does not constitute unusual circumstances.
A union which has been certified by the NLRB as a bargaining representative enjoys an
irrefutable presumption of a majority status for one year, absent special circumstances.
Following the expiration of the 1-yr certification period, the presumption is only
rebuttable.

Bargaining with Minority Union

Where a majority representative has been designated It is a ULP for the employer, as a
refusal of collective bargaining, to deal and negotiate with the minority representative to
the exclusion of the majority representative.
Where there was no majority representative designated Employer who bargains with a
minority representative does so at his peril, since the subsequent appearance of a
properly designated majority representative may oblige the employer to negotiate with
the latter despite the antecedent negotiations with or commitments to the minority rep.
Where there are several unions claiming to be the legitimate representative It is ULP for
one of the unions to stage a strike and demand that the employer sit down for collective
bargaining.

In the presence of a validly agreed procedure for a free collective bargaining, the Labor Code
procedure shall only apply suppletorily.

When should bargaining end?

The law dictates no deadline. It only demands observance of honesty and good faith.

Multi-employer bargaining
Collective bargaining may take place at the national, industry or enterprise level. The Philippines
has so far tried only the enterprise-level or decentralized bargaining. D.O. 40-03 introduces
multi-employer bargaining (which is only optional) but it does not define an industry union. For
the procedure, pls read D.O. 40-03, Rule XVI, Sections 5-7.

Articles 262-263 (252-253)

Duty to bargain
1) Where there is yet no collective bargaining agreement Duty to bargain means the mutual
obligation of the employer and the employees majority union to meet and convene for the
purposes of:
a. Negotiating an agreement on the subjects of:
i. Wages
ii. Hours of work and
iii. All other terms and conditions of employment including proposals for
adjusting grievances or questions arising under such agreement
b. Executing a contract incorporating such agreement if requested by either party
The kind of compliance required prompt, expeditious and in good faith.
Limitations of the duty that it does not compel any party to agree to a proposal or to
make a concession. So no ULP when a party in good faith turns down a proposal.
2) Where a CBA exists The duty to bargain means all of the above plus the obligation not to
terminate or modify the CBA during its lifetime. But 60 days before the CBA expires, either
party may notify the other in writing that it desires to terminate or modify the agreement.
This 60-day period does not always coincide with the 60-day period pertaining to the
freedom period to resolve representation contest between unions.

Four forms of ULP in Bargaining

1) Failure or refusal to meet and convene
Capitol Medical Center vs Trajano
That there is a pending cancellation proceedings against the respondent union is not a
bar to set in motion the mechanics of collective bargaining. Unless its certificate of

registration and its status as the certified bargaining agent are revoked, the hospital is
duty bound to collectively bargain with the union.
Abaria vs NLRC
Aside from being registered, the local union should further be designated or selected
by the majority of the employees in the bargaining unit as their bargaining
representative. Absent any of these, it is not ULP when the employer refused to
negotiate the CBA.
An acquiring employer (when the company is sold) is a successor to the bargaining
obligations of his predecessor if there is a continuity in the business operation. If the
transfer of assets and employees from one employer to another leaves intact the
identity of the employing enterprise, the transferors duty to recognize and bargain
with an incumbent union devolves upon the transferee as successor employer. As to
whether an employer is successor, the NLRB looks to the totality of circumstances. If
there is a substantial and material alteration in the employing enterprise, the new
employer need not bargain with the incumbent union. If there is a substantial
nondiscriminatory personnel changes and changes in the operational structure of the
business, he is not a successor employer.
Not ULP:
o When an employer refuses to bargain by rejecting the unions economic demands
where he is operating at a loss, on a low profit margin or in a depressed industry, as
long as he continues to negotiate. But financial hardship constitutes no excuse
for refusing to bargain collectively, nor does the need to meet the exigencies arising
from the competition in the trade.
o Adoption of an adamant bargaining position in good faith particularly when the
company is operating at a loss
o Refusal to bargain over demands for commission of unfair labor practices
o Refusal to bargain during period of illegal strike The employer has no obligation to
bargain until he is notified that the illegal strike has been terminated.

14) Itao 377-391

2.7 Acts not Deemed Refusal to Bargain (pg. 377)
Suspecting that the employer was transferring the plant, the union demanded information
concerning the removal of equipment and machinery from the factory. The employer refused.
Was there a refusal to bargain collectively? There was no violation of statutory duty to bargain
since the removal of equipment and machinery from the plant had no relevance to a possible
grievance or to contract administration and did not relate to wages, hours and other terms and
conditions of employment. (Acme Industrial Co. vs. NLRB, 52 LC 23, 630.)
Where, pursuant to an honest doubt, the employer has demanded additional proof or the
acquisition of an official certification of bargaining agency, there is no obligation or duty on the
employers part to enter into negotiations until the demanded proof is presented pending the
certification proceedings, unless it can be established that the demand lacks in good faith and is
intended as an obstruction to negotiations. (NLRB vs. National Seal Corp., 127 F. [2 nd] 776).

Duty to bargain is not violated where:

1 There is no request for bargaining;
2 The union seeks recognition for an inappropriately large unit;
3 The union seeks to represent some persons who are excluded from the Act;
4 The rank-and-file unit includes supervisors or inappropriate otherwise;
5 The demand for recognition and bargaining is made within the year following a
certification election in which the clear choice was no union and no ad interim
significant change has taken place in the unit;
6 The union makes unlawful bargaining demands. But a unions demand for
reinstatement of justifiably discharged strikers, which was not presented as
unconditional demand but rather as a bargainable issue was held no to excuse an
employer from its duty to bargain with the union.

2.8 Alleged Interference in the Selection of the Unions Negotiating Panel (pg. 378)
Standard Chartered Bank Employees Union (NUBE) vs. Hon. Nieves Confesor, GR No. 114974,
June 16, 2004
Facts: The Union asserts that the ER committed ULP when the Banks HR Manager suggested to
the Union that the president of the federation be excluded from the Unions negotiating panel.
Citing the cases of US postal service and Harley Davidson Motor Co., Inc., AMF, the union claims
that interference in the choice of the Unions bargaining panel is tantamount to ULP.
Held: The contention is bereft of merit. In order to show that the ER committed ULP under the
Labor Code, substantial evidence is required to support the claim. In the case at bar, the Union
bases its claim of interference on the alleged suggestions of the [HR manager] to exclude [the
federation president] from the Unions negotiating panel. The circumstances that occurred during
the negotiating do not show that the suggestion made is an anti-union conduct from which it can
be inferred that the Bank (ER) consciously adopted such act to yield adverse effects on the free
exercise of the right to self- organization and Collective Bargaining of the EEs.
2.9 Non-reply to Proposal; CBA Imposed on Employer (pg. 379)
Kiok Loy vs. NLRC and Kilusan , GR No. L-54334, January 22, 1986
Facts: The Pambansang Kilusan ng Paggawa was certified as the sole and exclusive bargaining
agent of the EEs of Sweden Ice Cream. The union furnished Mr. Kiok Loy with 2 copies of its
proposed CBA and requested the company its counter-proposals. The request was ignored. The
Union then filed a notice of strike on the ground of unresolved economic issues in collective
bargaining. Conciliation proceeding followed but it failed. The case was certified to the NLRC for
compulsory arbitration but the company kept on postponing the same, thus, the NLRC rendered
its decision declaring the company guilty of unjustified refusal to bargain and the NLRC also
ordered that the CBA proposed by the union be considered as the CBA. The company filed a
petition for certiorari with the SC.
Held: Collective Bargaining, designed to stabilize the relations between labor and management
for the purpose of industrial peace, is a mutual responsibility between labor and management. It
is a legal obligation, so much so that Art. 249 (now 248) of the Labor Code makes it Unfair Labor
Practice for an ER to refuse to meet and convene promptly and expeditiously in good faith for the
purpose of negotiating an agreement for wages, hours of work, and other terms of employment.
The union complied with the jurisdictional preconditions of collective bargaining, namely: (1)
Possession of majority representation; (2) proof of majority representation; and (3) demand to
bargain. From the overall conduct of the company, it is indubitably shown that it disregarded its
obligation to bargain in good faith. We agree with the pronouncement that it is not obligatory
upon either side of a labor controversy to precipitately accept or agree to the proposals of the
other party. But an erring party should not be tolerated and allowed with impunity to resort to
schemes feigning negotiation by going through empty gestures. To that extent, utmost defense
to its findings of reasonableness of any Collective Bargaining Agreement as the governing
agreement by the EEs and management must be accorded due respect by this court.
2.9 Repetition in Divine Word University (pg. 380)
Divine Word University of Tacloban vs. Sec. of Labor, GR No. 91915, Sept. 11, 1992
After reviewing the facts, the Court overruled the Universitys contention that the unions
proposals may not be unilaterally imposed on it on the ground that a CBA is a contract wherein
the consent of Bothe parties is indispensible. This contention, the Court ruled, is devoid of
merit. The court went on: xxxxxxx as we said in Kiok Loy, a companys refusal to make counter
proposal if consideration in relatiojn to the entire bargaining process, any indicate bad faith and
this is especially true where the Unions request for a counter proposal is left unanswered.
Moreover, the Court added in the same case that it s not obligatory upon either side of a labor
controversy to precipitately accept or agree to the proposals of the other. But an erring party
should not be tolerated and allowed with impunity to resort to schemes feigning negotiation by
going through empty gestures.
3. SECOND U.L.P. IN BARGAINING: EVADING THE MANDATORY SUBJECTS (Pgs. 380381)
It is the obligation of the ER and the EEs representative to bargain with each other with respect
to wages, hours and other terms and conditions of employment. They are statutory or

mandatory proposals. An ERs refusal to negotiate a mandatory subject of bargaining is an ULP

although the ER has every desire to reach agreement and earnestly and in all good faith bargains
to that end. As other matters, he is free to bargain or not to bargain.
A mere remote, direct or incidental impact is insufficient to render a subject a mandatory subject
of bargaining in order for a matter to be subject to mandatory collective bargaining, it must
materially or significantly affect the terms and conditions of employment. However, conditions of
employment include not only what an ER has already granted, but also what it has announced it
intends to grant.
3.1 Wages and Employment Conditions (Pgs. 381-382)
The following are examples of matters considered as mandatory subjects of bargaining:
1
2
3
4
5
6
7
8
9
10
11
12

Wages and other types of compensation, including merit increases;

Working hours and working days, including working shfts;
Vacation and Holidays;
Bonuses;
Pension and retirement plans;
Seniority;
Transfer;
Lay-offs;
EE workloads;
Work rules and regulations;
Rent o f company houses;
Union security arrangements.

3.2 Wage Factors; Solomonic Approach (Pg. 382-383)

Manila Electric Co. vs Hon. Sec. of Labor and MEWA, GR No. 127598, January 27, 1999
While we (the SC through Justice Martinez) do not seek to enumerate in this decision the factors
that should affect wage determination, we must emphasize that a collective bargaining dispute
such as this one requires dues consideration and proper balancing of interest of the parties to the
dispute and of those who might be affected by the dispute. To our mind, the best way in
approaching this task holistically is to consider the available objective facts, including, where
applicable, factors such as the bargaining history of the company, the trends and amounts of
arbitrated and agreed wage awards and the companys previous CBAs, and industry trends in
general. As a rule, affordability or capacity to pays should be taken into account but cannot be
the sole yardstick in determining the wage award, especially in a public utility like MERALCO. In
considering a public utility, the decision maker must always take into account the public
interest aspects of the case; MERALCOs income and the amount of money available for
operating expensesincluding labor costsare subject to state regulation. We must also keep in
mind that high operating costs will certainly and eventually be passed on to the consuming
public as MERALCO has bluntly warned in its pleadings.
We take note of the middle ground approach employed by the Secretary in this case which we
do not necessarily find to be the best method of resolving a wage dispute. Merely finding the
midway point between the demands of the company and the union, and splitting the difference
is a simplistic solution that fails to recognize that the parties may already be at the limits of the
wage levels they can afford. It may lead to the danger too that neither of the parties will engage
in principled bargaining; the company may keep its position artificially low while the union
presents artificially high position, on the fear that a Solomonic solution cannot be avoided.
Thus, rather than encourage agreement, a middle ground approach instead promotes a play
safe attitude that leads to more deadlocks than to successfully negotiated CBAs.
3.2 Workloads and Work Rules (Pg. 383)
EE workloads are a mandatory subject of bargaining. ER rules concerning coffee breaks, lunch
periods, smoking, EE discipline, and dress are also mandatory subjects of bargaining, as are plant
safety rules and general regulations. An ER violates 29 USCS Secs. 158 (a) (5) by unilaterally
instituting a written disciplinary warning system to replace a system of oral reprimands or by
instituting penalty provisions in a newly adopted code of ethics providing that any violation
would result in suspension and multiple infractions would result in discharge.

Company rules relating to safety and work practices come within the meaning of the phrase
other terms and conditions of employment as used in the Act and, therefore, constitute a
mandatory subject of collective bargaining. (NLRB vs. Gulf Power Co., 56 LC 20, 158)
3.2a Code of Conduct (Pg. 384)
Such dos and donts for the EEs of the enterprise are work rules, forming part of terms
and conditions of employment, that are proper subjects of collective bargaining. Hardly
may the ER contend that they are non-negotiable matters.
3.3 Management Prerogatives Clause (Pg. 384)
An ER does not commit an LP by insisting, to the point of a bargaining impasse, on the inclusion
in the contract of a management prerogatives clause, even though some of the matters covered
by the clause are conditions of employment which are mandatory subjects of bargaining under
29 USCS Sec. 158 (d). Thus, an ERs insistence that its decision regarding hiring and tenure of
employment should not be reviewable by arbitration is not a refusal to bargain.
3.4 Union Discipline Clause (Pg. 384)
An ER may bargain to an impasse over his proposal that the union eliminate a piecework ceiling
imposed by a union rule which subjects members to discipline for exceeding the production
quota. However, an ERs insistence to the point of a bargaining impasse on the unions
withdrawal of fines imposed on member-EEs who crossed the picket line around the ERs plant is
an unlawful refusal to bargain, since the right not to withdraw fines is an internal union affairs, a
matter involving relations between EEs and their unions, & therefore not a mandatory bargaining
item.
3.5 Arbitration, Strike-Vote, or No-Strike Clauses (Pg. 384)
An ER may lawfully bargain to an impasse over his proposal that the CBA include an arbitration
clause or a no-strike clause which prohibits the EEs from striking during the life of the
agreement.
3.6 No-Lockout Clause; Clause fixing contractual term (Pg. 384)
An ERs statutory duty to bargain requires him to negotiate over the unions proposal that their
agreement include a clause binding him not to lock out the EEs. An ERs refusal to bargain over
the duration of the contract to be entered into is also an ULP.
3.7 Signing Bonus (Pg. 385)
In contractual terms, a signing bonus is justified by and is the consideration paid for the goodwill
that existed in the negotiations that culminated in the signing of a CBA. Without the goodwill, the
payment of a signing bonus cannot be justified and any order for such payment, to our mind,
constitutes grave abuse of discretion. This is more so where the signing bonus is in the not
insignificant total amount of P16 Million. (Manila Electric Co. vs. Hon. Sec. of Labor and MEWA,
GR No. 127598, January 27, 1999).
A signing bonus is not a benefit which may be demanded under the law. Rather, it is now claimed
by petitioner (union) under the principle of maintenance of existing benefits of the old CBA.
However, as clearly explained by the private respondent (employer), a signing bonus may not be
demanded as a matter of right. If it is not agreed upon by the parties or unilaterally offered as an
additional incentive by private respondent, the condition awarding it must be duly satisfied. In
the present case, the condition sine qua non for its grantsa non strikewas not complied with.
(Caltex Refinery EEs Association vs. Brillantes and Caltex PH Inc., GR No. 123782, September 16,
1997).
3.8 Voluntary Benefits (Pg. 385)
Employment benefits are either statutory if required by law (e.g. Service Incentive Leave) or
VOLUNTARY if granted by the ER although not required by law (e.g. Vacation leave, or bonus, or
14th month pay).
In negotiating a CBA, may the union demand that an existing voluntary benefit be discussed and
included in the CBA? In one, the ER manifested its desire to keep a voluntary benefitthe
companys retirement programunder the managements exclusive control, & therefore refused

to include the retirement policy in the CBA bargaining agenda. The union reacted by charging the
company with ULP by way of bargaining in bad faith, and proceeded to file a notice of strike. The
court refused to impute bad faith on the ERs refusal to include the retirement program in the
CBA negotiation. But the court upheld the inclusion of the voluntary benefit as a proper subject
of bargaining. (Union of Filipino EEs, etc. vs. Nestle PH, Inc., GR No. 158930-31, March 3, 2008).
3.9 No duty to agree even on Mandatory Subjects (Pg. 386)
Where the subject of the dispute is a mandatory bargaining subject, either party may bargain to
an impasse as long as he bargains in good faith. The duty to bargain does not obligate a party to
make concessions or yield a position fairly held. Hence, an ERs adamant insistence on a
bargaining position is not necessarily a refusal to bargain in good faith. Even if the negotiating
party thumbs down the other partys proposals, there is no violation of the duty to bargain
hence, no ULPas long as the negative reply can be explained in good faith.
3.10 Non-mandatory subjects (Pg.386)
An ER cannot insist, to the point of creating a bargaining impasse, on the inclusion of a provision
outside the scope of the statutory bargaining subjects, even if he acts in good faith. On the other
hand, it is lawful to insist on the inclusion of a provision in a CBA if the provision is w/in the scope
of a statutory subject of bargaining.
An ER bargains to an impasse over a non-mandatory subject when he refuses to reach any
agreement with the union unless the union capitulates to him on the subject. However, it has
been held that a bargaining imapasse may be reached over a non-mandatory bargaining subject
although that subject is not the sole cause for the parties failure to agree. When a subject under
discussion is not mandatory, it may be discussed if both parties agree, but a strike or lockout
may not be used to compel negotiation or agreement.
While most matters that might be discussed or proposed in collective bargaining are likely to
bear some relation, to wages, hours, and other terms & conditions of employment, not all
proposals that somehow respond to a problem that is customarily bargained about may
themselves be insisted upon to impasse. By once bargaining and agreeing on a permissive
subject of bargaining, the parties do not make the subject matter a mandatory topic of future
bargaining.
3.11 Bargaining to the Point of Impasse: Not necessarily Bad Faith (Pg. 387)
The adamant insistence on a bargaining position to the point where the negotiations reach
impasse does not establish bad faith. Neither can bad faith be inferred from a partys insistence
on the inclusion of a particular substantive provision unless it concerns trivial matters or is
obviously intolerable.
Bargaining to the point of deadlock may or may not amount to bargaining in bad faith depending
on the whether the insistence refers to a mandatory or a non-mandatory subject of bargaining.
Over a mandatory subject a party may insist on bargaining, even to the point of deadlock, and
his insistence will not be construed as bargaining in bad faith. The reason is that the duty to
bargain requires meeting and convening on terms and conditions of employment but does not
require assent to the other partys proposals. Over a non-mandatory subject, on the other hand,
a party may not insist on bargaining to the point of impasse, otherwise his insistence can be
construed as bargaining in bad faith. It may be construed as evasion of the duty to bargain; such
evasion is ULP.
The above rulings do not mean that the non-mandatory subjects cannot be proposed or that the
proponent cannot demand serious discussion of such proposal. What the rulings forbid is the
posture of making settlement on a non-mandatory subject a precondition to the discussion or
settlement of a mandatory subject. If a non-mandatory subject is proposed and agreed upon, the
agreeing, by itself, is binding.
3.12 When is there deadlock or impasse? (Pg. 388)
Whether the subject is mandatory or non-mandatory that caused a bargaining deadlock, the
union may file a notice or the ER a notice of lock out.

But what is a deadlock? When is there a bargaining deadlock? A bargaining impasse over an
issue exits where good faith bargaining on the part of the parties has failed to resolve the issue
and there are no definite plans for further efforts to break the deadlock.
Impasse presupposes a reasonable effort at good-faith bargaining which, despite noble
intentions, does not conclude in an agreement between the parties.
A substantial change in the bargaining position of one party is necessary to break an existing
impasse so as to render unlawful the other partys subsequent refusal to meet and bargain. No
valid bargaining impasse can be said to occur when the bargaining deadlock is caused by the
failure of one of the parties to bargain in good faith.
3.12a Duty to Bargain when there is deadlock or impasse (Pg. 389)
Deadlock does not mean the end of bargaining. It signals rather the need to continue the
bargaining with the assistance of a third party as conciliator or arbitrator whose first aim is
to get the parties back to the negotiating table and help them craft a win-win solution.
Although negotiations reach a deadlock, the ER must resume negotiations where changed
conditions indicate that an agreement may be possible. Even after the union and the ER
reach a genuine bargaining impasse, the ER commits ULP by cancelling a scheduled
bargain meeting because the union filed ULP charges against the ER. However, an ER
cannot be held to have violated the obligation to bargain collectively with representatives
of its EEs where the negotiations with the union had resulted in a deadlock, causing the ER
to shut down the plant, and the union made no further negotiations until after the plant
had reopened with a new set of EEs operating under an agreement with another labor
organization.
3.12b Strike or Lockout in case of deadlock (Pgs. 389-390)
In fact, deadlock may occur anytime for various reasons such as unacceptability of a
proposal or counter-proposal, grandstanding of a negotiator, autocratic or arrogant stance,
or imprecise wording of a stipulation.
The law (Art. 263) recognizes bargaining deadlock as a valid reason to declare a strike or
lockout. Strike/Lockout presents a major deviation from the preferred smooth route of
bargaining. At this point of the bargaining scenario, strike or lockout is supposed to be
method of resolving an impasse, a device to constrain the parties to end an impasse and
go back to the negotiation table. But a strike/lockout, while meant to be a solution,
frequently becomes a problem in itself.
May a bargaining deadlock be resolved through arbitration by a Labor Arbiter? In the case
of Manila Central Line Corp. vs. Manila Central Line Free Workers Union-NFL, GR No.
109383, June 15, 1998: After the NCMB failed to resolve the bargaining deadlock between
the parties, the union filed a petition for compulsory arbitration in the Arbitration Branch of
the NLRC. Petitioner (ER) joined the petition and the case was submitted for decision. The
SC held that although the unions petition was for compulsory arbitration, the
subsequent agreement of petitioner to submit the matter for the arbitration in effect made
the arbitration a voluntary one. The essence of voluntary arbitration is that it is the
agreement of the parties, rather than compulsion of law, that a matter is submitted for
arbitration. It does not matter that the person chosen as arbitrator is a labor
arbiter who, under Art. 217 of the LC, is charged with the compulsory
arbitration of certain labor cases. There is nothing in the law that prohibits
these labor arbiters from also acting as voluntary arbitrators as long as the
parties agree to have him hear and decide their dispute.
4. THIRD U.L.P IN BARAGINING: BAD FAITH (Pg. 390)
Bargaining deadlock may also arise because of lack of good faith in bargaining.
Good-faith bargaining demands more than sterile and repetitive discussions of formalities
precluding actual negotiation, more than formal replies which constitute in effect a refusal to
treat with the union, and more than a willingness to enter upon a sterile discussion of unionmanagement differences. It requires a sincere effort to reach agreement, although it does not
require agreement itself.

Inviting EEs to disregard and by-pass the union in seeking

redress of their grievance,
notwithstanding the establishment of a grievance procedure in the CBA, has been held a
violation of the duty to bargain in good faith.
The duty to bargain collectively may be violated without a general failure of subjective good
faith, and there is no occasion to consider the issue of good faith if a party refuses even to
negotiate in fact about any of the mandatory subjects. An ER cannot be guilty of a refusal to
bargain if the union is not itself bargaining in good faith.
4.1 Determination of Good Faith
There is no per se test of good faith in bargaining. Good faith or bad faith is an interference to be
drawn from the facts and is largely a matter for the NLRBs expertise. To some degree, the
question of good faith may be a question credibility (US Source cited in the case of Hongkong
and China Banking Corp. EEs Union vs. NLRC, GR No. 125038, Nov. 6, 1997).
A finding of good faith in bargaining cannot be based upon whether a particular provision of a
contract seems reasonable or unreasonable to the NLRB, or whether the NLRB thinks the
provision should be agreed to, but it must be based entirely upon a consideration of the
negotiations as a whole. By the same token, the effect of an ERs actions individually is not the
test of good-faith bargaining, but the impact of all such occasions or actions, considered as a
whole, and the interferences fairly drawn therefrom collectively, may offer a basis for the finding
of NLRB.
A fair criterion of good faith in collective bargaining requires that the parties involved deal with
each other with open and fair mind and sincerely xxxxxxxxxxx
**(continuation kay page 392, wala ko copy sa book ky nagpa Xerox rako. Sarrey guys
)

15) Jao 392-406

When can bargaining in bad faith occur?

Bargaining in bad faith is considered ULP.
If one will be charged with bargaining in bad faith, it should be raised while
the bargaining is in progress.
If filed after the bargaining and the CBA has been executed voluntarily by
the parties, it is too late and untenable.
SMTFM-UAWP vs NLRC
Wage increase was asked by petitioner labor union which was denied
by the respondent. SC said that the union could have refused to
bargain and entered into a CBA when refused by the respondent. The
firm stand of the respondent against the proposal did not mean that it
was bargaining in bad faith since they had the right to insist on their
position to the point of stalemate. Petioner only realized the
importance of their proposal of wage increase when the wage orders
were issued which was after the CBA has been executed by both
parties. The charge of bad faith bargaining on the part of the private
respondent was nothing but a belated reaction to the implementation
of the wage orders that private respondent made in accordance with
law.
With the execution of the CBA, bad faith bargaining can no longer be
imputed upon any of the parties thereto. All provisions in the CBA are
supposed to have been jointly and voluntarily incorporated therein by

the parties. The CBA is proof enough that private respondent exerted
reasonable effort of good faith bargaining.

Instances of Bad Faith:

o Delay of, or Imposing Time Limit on, Negotiations.
National Labor Relations Board of US reported that lack of good faith
is indicated a) where the employer engages in unfair labor practices
while bargaining with the union, b) where it engages in dilatory tactics
during negotiations, or c) where it institutes a wage cut by unilateral
action and without consulting the majority representative.
If employer is motivated by a desire to gain time so as to be able to
undermine the union.
When an employer imposed a 7-month bargaining hiatus because of
the unavailability of its negotiators.
Where the employer postponed several meetings and made no
attempt to reach an agreement when meetings took place.
Where the employers negotiator frequently interrupted bargaining
sessions with time-consuming discussions, and no new areas of
agreement were reached in spite of some counter proposals by the
union and its often-indicated willingness to listen to other offers by the
employer.
When employer subsequently retreated from previously agreed items.
Where the employer pursued a pattern of tactics designed to delay
negotiations as long as possible to make it impossible for the union to
reach a collective bargaining agreement without virtually surrendering
its right to represent the employees in disputes over working
conditions.
To make it appear to the employees that they would be worse off with
a union representative and a collective bargaining agreement than if
they had neither.
Where an employer refused to bind himself contractually as to wage
rates, hours of work, holidays, vacations and bonuses, insisting upon
the right to grant such conditions of employment as gratuities, and
rejected a clause against lockouts. The employer cannot insist upon
withdrawing these matters from the sphere of collective bargaining nor
can he insist upon reserving to himself the right to alter, at his
discretion, existing practices eth respect to these matters for collective
bargaining.
An unwarranted delay in the negotiations may be evidence by bad
faith on the part of the employer. However, an employer has been
held not guilty of bad faith for failing to complete a collective
bargaining contract during a 3-year period where many conferences
had been held during the period, even though the employer had
insisted on a no-strike clause and had raised wages during negotiations
for purpose of meeting competition.
When no representative of the employer is available for conferences
with the union at reasonable time and place.
When in the midst of the bargaining negotiations, without leaving
anyone with authority to continue the negations, employer leaves the
country. ( Jurisprudence)
When after one month of unions submission of proposals to employer,
he has not made any counter proposal.
o Bad faith
Surface Bargaining

Shifting Bargaining Positions

Blue Sky Bargaining

Surface bargaining
o means a sophisticated pretense in the form of apparent
bargaining, does not satisfy the statutory duty to bargain.
o Going through the motion of negotiating without any legal
intent to reach an agreement

The duty is not merely meeting together or simply manifesting

willingness to talk but presupposes a desire to reach an ultimate
agreement to enter collective bargaining contract.
Employer cannot reject a unions acceptance of the employers counter offer on
the ground that the union had earlier rejected the offer
BAD FAITH INSTANCES:
Repeated shifts in position and attitude on the part of an employer
whenever tentative agreement is reached.
Where employer completely repudiated the agreement reached by its
negotiators at the bargaining table and subsequently mad an offer which
was inferior to its initial proposals to the union.
When employer harassed and discharged union leaders, stated that he
would not sign a contract, proposed terms that were obviously unacceptable
to union and brought in non-union employees from other office to
accompany employees during the world day.
o Bad Faith:
Inflexible Demands
Strike Amid Negotiation
Boulwarism or Take-It-or-Leave-It Bargaining
Not giving the relevant information to other party upon request i.e.
financial statement

Not bad faith to propose modification to the Expiring CBA (renegotiation or

modification)
Art. 253 states to terminate or to modify
It may mean to add, subtract, or other ways of changing the contents of
phraseology of contents, including the economic provisions
May mean scaling down the CBA
Renegotiation is preceded by 60-day notice which should not be confused
with 60 day free period.

FOURTH ULP IN BARGAINING: GROSS VIOLATION OF THE CONTRACT

Negotiations are over in this case and the collective contract is already
in place
The violation must be gross in order to be considered ULP.

RATIFICATION BY THE COLLECTIVE BARGAINING UNIT

Mandatory
Ratified by MAJORITY of all the workers in the bargaining unit and must carry
the sworn statement of the union secretary and attested by the union president.
If not signed by president or secretary, still VALID since signing is not a
requirement in ratification. It is only a formality.
IRR requires: posing of the CBA in 2 conspicuous places for five days prior to
ratification in order to clearly inform the workers the provisions in the CBA.
NONCOMPLIACE will render the CBA INEFFECTIVE.

 Unratified but implemented - members cannot later on insist that the CBA is void
since they already benefitted from it.

WHEN RATIFICATION NOT NEEDED

When product of arbitral award by appropriate government authority or by a
voluntary arbitrator.
Still needs to be posted in 2 conspicuous places in order to inform the
employees of the awarded CBA, not to ratify.
When not satisfied with the award, remedy is certiorari.

EXECUTION OF CONTRACT
Labor Code did not specify which comes first between ratification and
execution. What is important is the ratification, not the sequence of steps.
When CBA is ratified, the CBA is finalized and formal signing follows. The
parties indicate the date of execution and the effectivity date.
UNWRITTEN OR UNSINGED CBA IS STILL VALID EVEN IF ORIGNALY
CONTEMPLATED TO BE SIGNED OR WRITTEN SINCE THIS REQUIREMT CAN BE
WAIVED.

WHEN THERE IS A DISPUTE AND IS IN ARBITRATION, THE SUBSEQUENT

EXECUTION OF A CBA WILL RENDER THAT PENDING DISPUTE ABORTED.
to preserve the pending dispute will violate the purpose if the CBA
which is to agree on the mattes that needs to be agreed by both
parties.

REGISTRATION OF CBA
Register with the DOLE Regional Office where the bargaining unit is registered
or where it principally operates within 30 calendar days form execution of
agreement.
Multi-employer CBA shall be filed with the Bureau of Labor Relations.
CBA is effective as long as it is signed by both parties. The certification of the
Bureau is not needed for it to be effective.
REQUIREMENTS FOR REGISTRATION: Original and 2 duplicate copies which must be
certified under oath by representative(s) of the employer(s) and labor union(s)
concered:
Collective bargaining agreement
Statement that the CBA was posted in 2 conspicuous places for 5 days
before ratification.
A statement that the CBA was ratified by majority of all the employees of a
bargaining unit.
o Incomplete documents or not verified under oath may be denied.
o If denied by Regional office, appeal to Bureau within 10 days or to the
Secretary if the denial is by the Bureau.
o no other document shall be required in registration.

16) Jumalon 407-421

Implementation, the renegotiation.

Implementation is preceded often by meetings among the management and the union groups to
brief implementors about the CBA provisions particularly on the changes and frequently it starts
even before the contract is registered (note that registration is a formal step in the CBA process
but not a prerequisite to its validity). Implementation must not be taken lightly because it is still
part of the duty to bargain. (note: Neglecting, Deviating from our violation of terms of CBA is a
ULP).

Another part of the duty to bargain is to renegotiate the CBA when it is about to expire.
applies only to those renegotiable provisions (non political and non representational issues).

It

What was exluded form the old CBA may be proposed for inclusion in the new CBA as negotiation
precisely contemplates proposals and counter proposals. A case cited in the book held that the
parties in CBA may not only renew existing CBA but may also propose and discuss modifications.

Automatic Renewal of CBA.

New Pacific Timber and Supply Company Inc

CBA provides for a yearly increase of salary in 1981-1984. There was a wage increase in 1985
but petitioner company said there is no legal basis for the grant of CBA benefit because the term
was only up to 1984. (Court said Terms and condition of CBA continue to have full force and
effect beyond the stipulated term when no new agreement is executed by and between the
parties to avoid or prevent a situation were no CBA at all would govern bet ER company and its
EEs).Petitioner also insisted that those hired after 1984 are new parties to the agreement and
certainly cannot claim the benefits thereunder ( Court: when a collective bargaining contract is
entered into by the union with the ER, even the non member employees are entitled to the
benefits because to accord it only to members without valid reason would constitute an undue
discrimination against non members).

Terms of CBA

Effectivity. If CBA is the first ever in the bargaining unit the effectivity date is whatever date the
parties agree on. But when CBA is renegotiated to replace the expired one and if renegotiation is
finished and CBA is concluded the following applies:
Within 6 months retroacts to the day following expiry.
Beyond 6 month does not automatically retroacts, the matter of retroaction and the
possible retroactive date are left to the parties.
*CBA arbitral awards granted after 6 mos from CBA expiration shall retroact to the time agreed
upon by ER and EE or their union, absent such agreement, award shall retroact to the first day
after 6 month period following the expiration of the last day of CBA should there be one (Manila
Electric case).

Duration or Life Span of CBA

5 years for the representation aspect (identity and majority status of the union) and not more
than 3 years for all other provisions (all other provisions in the CBA econ and non econ other
than rep).

Now does it follow that all renegotiated non representation provisions of CBA should be for a
term of 3 years? No, note from the SOLEs memo quoted with approval from SC that it does not
require either two or three year; rather, it recognizes the primacy of mutual agreement between
the parties.
Extention of effectivity of CBA when valid. When it is approved by the union in referendum
(properly supervised by the DOLE and within the authority of the interim board to administer the
Cba and operate the union) when it is acceptable to both parties and did not violate the law.

Art 254. No temporary or permanent injunction or restraining order in any case involving or
growing out of labor disputes shall be issued by any court or other entiy, except as otherwise
provided in Articles 218 and 264 of this code.

Reason : Labor injunctions have the deceptive appeal of the quick and easy solution, and theirin
lies their danger, for disputes between workers and employers, now often complicated by the
internecine disputes among workers themselves , are not always of comparable simplicity.
Generally not proved to be an effective means of settling labor disputes.

Note: There is a case in the book Republic Flour Mill Workers Association vs Reyes where the
validity of the write of preliminary injunction was upheld by the SC. The reason is that it is not a
labor injunction that is provided by the labor code. There was no labor dispute existing between
the pet union and resp AIA Flour Mills Inc. The injunction ordered by the judge was one in
pursuant to Rule 60 of ROC.

AIA Four Mills Inc is one of the lesse of the land of the Employer of the Striking employees. They
were prevented from entering the premise when union declared strike and picketed the premise.
(The only reason why I included this case here is because its in the book but really this is not the
kind of example we want to read because this is not the injunction referred to in the provision
above).

17) Largosa 422-436

Social dumping

occurs when companies transfer their production activities and employment in order to
exploit lower wages and inferior working conditions in peripheral countries, thereby
putting wages and working conditions in the original production countries under pressure.
Competition focuses on differences in terms and conditions of employment.
By relocating production activities, companies hope to achieve a sharp reduction in
expenditure, including the cost of labour.

Concession bargaining when a decrease in the level of protection is negotiated with the trade
unions.

TITLE VII
COLLECTIVE BRAGAINING AND
ADMINISTRATION OG AGREEMENT (CONT`D.)
[PART 2. EMPLOYEE PARTICIPATION
AND REPRESENTATION]

ARTICLE 255
EXCLUSIVE BARGAINING REPRESENTATION AND WORKER`S PARTICIPATION IN POLICY
AND DECISION-MAKING

Worker`s participatory right: Its constitutional meaning

A. What is the meaning or extent of the workers` right to participate in policy and
decision-making?
Does it carry approval/disapproval power?
Ans: The deliberations of the 1986 Constitutional Commission reveal that the intention was
to refer to participation in GRIEVANCE PROCEDURES and VOLUNTARY MODES of setting
disputes and not to formulation of corporate programs or policies.

B. Three Levels of employee participation

Corporate Level- refers to strategic policies pertaining to the mergers,
acquisitions, pricing and marketing policies, disposition of profits and the
like.
Plant or Department level administrative decisions are made; decisions
made refer to hiring, firing and promotion of employees, cost and quality
control, resource allocatios, achievements of target quotas etc.
Shop-floor level operating decisions are made; decisions usually refer to
scheduling of work, safety regulations, work methods, training of new
employees
According to the deliberations of 1986 Constitutional Commission, the phrase : to participate in
policy and decision-making affecting their interests refers:

1. AS TO PROCESS:
Grievance procedures, conciliation proceedings, voluntary modes of settling disputes and
negotiations in free collective bargaining agreement.
2. AS TO SCOPE AND SUBSTANCE
Rights and benefits of workers.

ADOPTION OF THE PARTICIPATORY MANAGEMENT STYLE

Human Relations Approach

Emphasized participation of employees and worker democracy, because it was believed

that participation would motivate workers to be better workers through increased morale,
decreased resistance to company authority, and fuller sense of involvement and
belonging.
Aimed at ensuring that workers were less vulnerable to persuasion y union organizers.

Despite the aforementioned, there is no solid basis to contend that our constitution`s grant of
participatory right is meant to weaken union formation. In any case, it is commonly known that
employees may or may not unionize for various reasons, not just because of presence or
absence of participatory right.

EMPLOYEE`S PARTICIPATION IN FORMULATING THE CODE OF DISCIPLINE

The Supreme Court declared in the case of PAL vs NLRC that employees possess the right to
participate in the deliberation of matters which may affect their rights and formulation of policies
relative thereto. One such matter is the formulation of a CODE OF DISCIPLINE.

Philippine Airlines, Inc. (PAL) vs. NLRC, et. al

GR No. 85985, August 13, 1993

PARTICIPATORY RIGHT DOES NOT GRANT MANAGEMENT CONTROL

Contrast the ruling in the PAL case with these cases:

San Miguel Brewery Sales Force Union (PTGWO) vs. Ople and SMC
Gr. No. 53515, February 8, 1989

GTE Directories Corp. vs. Sanchez

Gr. No. 76219, May 27, 1991

In both cases, the authority and power of the employer to make policy, without employees`
participation, is recognized and upheld. Disobeying the policy is recognized as a valid reason to
dismiss the disobedient employees.

WORKERS` PARTICIPATION AS THE REAL OBJECTIVE; THE LMC

Collective Bargaining is just one of the forms of employee participation. The real aim of collective
bargaining is employee participation in whatever form it may appear--- bargaining or no
bargaining, union or no union.

Since individual representation in dealing or bargaining with the employer is weak, the law
provides another forum --- Labor-management council (LMC).

LMC:

Can exist where there is no union or co-exist with a union.

It can represent employees across the enterprise, present grievances regardless of the
grievant`s rank, and proffer proposals unhindered by formalities.
Can handle projects and programs whoever is the proponent, form committees for myriad
purposes, instill discipline and improve productivity.

2 kinds of LMC:
1 Labor-management cooperation programs
2 Labor management committee
The common purpose is promotion of productivity and of industrial peace through labor
education.

DEPARTMENT`S PROMOTION OF LMC AND OTHER COUNCILS

In organized establishments, the worker`s representatives to the council shall be nominated by
the exclusive bargaining representative.
In establishments where no legitimate labor organization exists, the workers representative shall
be elected directly by the employees at large.

INDIVIDUAL GRIEVANCE
The law explicitly preserves and respects the right of an individual employee or any group of
employees to directly present grievances to their employers at anytime.
The second sentence of Article 255 is meant to be an exception to the exclusiveness of the
representative role of the union`s constitution and by-laws.

Moreover, the bargaining representative must be given the opportunity to be present at the
meeting between the employer and employee.

COLLECTIVE BARGAINING UNIT (CBU) DEFINED

At the enterprise level, there are (3) three democratic devices:
1
2
3

Airing of grievance even by an individual employee directly to the employer anytime.

Participation in policy and decision-making by employees, whether unionized or not.
Collective bargaining with the employer by unionized employees.

CBU is that group of jobs and jobholders represented by the recognized or certified union when it
bargains with the employer.
The group may comprise all the supervisors, or separately, all the rank-and-file
employees (nowdays called the associates) in the company.

If a single unit (only one for all supervisors or only one for all rank-and-file) is not feasible,the law
allows subgroups as bargaining units, provided only that each sub-group is appropriate.
It is appropriate if its members share substantially common concerns and interests.
(take note of the definition of bargaining unit in DO 40-03)

Bargaining union has to be the majority union, the one where majority of the CBU members
belong. The majority status is determined through a union selection process.

representative union, bargaining union, majority union, bargaining agent and bargaining
representative are one and the same. It refers to the CBU in bargaining or dealing with the
employer.

APPROPRIATENESS OF BARGAINING UNIT; FACTORS CONSIDERED

The basic test of a bargaining unit`s acceptability (or appropriateness) is whether it will best
assure to all employees the exercise of their collective bargaining rights. Industrial experience
indicates that the most efficacious bargaining unit is one which is comprised of constituents
enjoying a community of interest.

In making judgments about community of interest in theses different settings, the board will
look to such factors as:
1
2

Similarity I the scale and manner of determining earnings

Similarity in employment benefits, hours of work and other terms and conditions of
employment
3 Similarity in the kinds of work performed
4 Similarity in the qualifications, skills and training of the employees
5 Frequency of contact or interchange among the employees
6 Geographic proximity
7 Continuity of integration of production processes
8 Common supervision and determination of labor-relations policy
9 History of collective bargaining
10 Desires of the affected employees
11 Extent of union organization
Geographical location can be completely disregarded if the communal or mutual interests of the
employees are not sacrificed.
In the case of UP vs. Calleja- Ferrer, the court ruled that the distance among the three plants is
not productive of insurmountable difficulties in the administration of union affairs.
Neither are there Regional differences that are likely to impede the operations of a single
bargaining representative.

BARGAINING HISTORY NOT A DECISIVE FACTOR

National Association of Free Trade Unions(NAFLU) VS. Mainit Lumber Development

Company Workers Union-United Lumber and General Workers of the Philippines
(MALDECOWU-ULGPWP)
Gr. No. 79526, December 21, 1990

18) Lim 437-451

5.2 EXCLUSION OF CONFIDENTIAL EMPLOYEES
Case: PHILIPS INDUSTRIAL DEVELOPMENT, INC vs NLRC and PHILIPS EMPLOYESS ORGANIZATION,
GR no. 88957
FACTS: Respondent NLRC committed grave abuse of discretion in decreeing that PIDI s service
engineers, sales force, division secretaries, all of staff of general management, personnel and
industrial relations department, secretaries of audit, edp and financial system are included within
the rank and file bargaining unit.

HELD: All these employees, with the exception of the service engineers and the sales force
personnel, are CONFIDENTIAL EMPLOYEES. In their 5 previous CBAs between PIDI and PEO-FFW
explicitly considered them as confidential employees. By the very nature of their functions, THEY
ASSIST AND ACT IN A CONFIDENTIAL CAPACITY TO, OR HAVE ACCESS TO CONFIDENTIAL MATTERS
OF, PERSONS WHO EXERCISE MANAGERIAL FUNCTIONS IN THE FIELD OF LABOR RELATIONS.
5.3 TEMPORARY OR PART-TIME EMPLOYEES
RULE: They are excluded from bargaining unit.
FACTOR TO DETERMINE A PART TIME EMPLOYEE: the reasonable likelihood that the temporary or
part-time employees will eventually become adequately identified in employment with other
members of the bargaining unit.
5.4 SEASONAL EMPLOYEES
Full time seasonal employees who have reasonable expectation of substantial employment
from year to year held INCLUDIBLE IN THE UNIT, but part-time seasonal employees have
INSUFFICIENT COMMON INTEREST with the full time to be INCLUDED IN THE SAME
BARGAINING UNIT.
RETAIL STORES: part-time with 4 hours or more/ week for the last quarter before eligibility
date INCLUDIBLE IN THE UNIT
CASUAL employees are excluded, but if working with an employer who operates a referral
system for unskilled labor have been held an appropriate unit.
5.5 PROBATIONARY EMPLOYEES
> the classification as beginner, trainer or probationary employee, and the contemplation of
permanent tenure subject to satisfactory completion of initial trial period, are insufficient to
warrant such employees exclusion from a bargaining unit.
6. REFERENDUM WHERE INTERESTS ARE DISSIMILAR
> In case of Philips Industrial cited above, the court held that regards sales representatives and
service engineers(not holding supervisory positions), there is no doubt that they are entitled to
join or form a union as they are not disqualified to do so.
> following the GLOBE DOCTRINE, they should be allowed to determine for themselves what
union to join or form. The best way to determine their preference is through REFERENDUM.
6.1 DESIRE OF THE EMPLOYEES; THE GLOBE DOCTRINE
> first enunciated in the GLOBE MACHINE & STAMPING CO. case
The desires of the employees are relevant to the determination of the appropriate bargaining
unit. It is inherent in the basic right to self organization, but this is not a controlling factor, it is a
factor which would be taken into consideration in reaching a decision.
7. SINGLE OR EMPLOYER UNIT PREFERRED
> it has been held the policy of the BLR to encourage the formation of an employer unit unless
circumstances otherwise require.
> one employer enterprise constitutes only one bargaining unit. The more solid the employees
are, the stronger is their bargaining capacity
7.1 EXCEPTIONS TO ONE UNIT POLICY
> the exclusion of the subject employees from the rank and file bargaining unit an cba is
definitely compelling reason, for it completely deprived them the chance to bargain collectively
with petitioner are thus left with o recourse but to group themselves into a separate and distinct
bargaining unit and form their own organization.
8. TWO COMPANIES WITH RELATED BUSINESS
RULE: two companies cannot be treated as a single bargaining unit even if their business are
related.
CASE: INDOPHIL TEXTILE MILL WORKERS UNION-PTGWO vs. VOLUBTARY ARBITRATOR
TEODORICO P. CALICA and INDOPHIL TEXTILE MILLS, INC (page 441)
8.1 SUBSIDIARIES AND SPUN OFF CORPORATIONS
RULE: subsidiaries or corporations formed out of former divisions of a mother company following
a bona fide reorganization may constitute separate bargaining units.
CASE: SAN MIGUEL COR EMPLOYEES UNION PTGWO, etc vs. CONFESOR, SAN MIGUEL CORP.,
MAGNOLIA CORP., AND SAN MIGUEL FOODS, INC., ( page 443)

8.2 THE FOUR- FACTOR ANALYSIS

a. interrelations of operation;
b. centralized control of labor relations( single most critical factor);
c. common managements; and
d. common ownership
ART. 267 (256) REPRESENTATION ISSUE IN ORGANIZED ESTABLISHMENTS
ART. 268 (257) PETITIONS IN UNORGANIZED ESTABLISHMENTS
ART. 269 (258) WHEN AN EMPLOYER MAY FILE A PETITION
ART 270 (258-A) EMPLOYER AS BYSTANDER
ART. 271 (259) APPEAL FROM CERTIFICATION ELECTION ORDER
NOTE: please refer to spectra notes on UNORGANIZED/ ORGANIZED establishments. thanks*_*

19) Llorad 452-466

Direct Certification No Longer Allowed
-even in case where a union has filed a petition for certification election
-by virtue of EO No. 111, the direct certification originally allowed under Art.257 of LC
has apparently been discontinued as a method of selecting the exclusive bargaining
agent of the workers.
NOTE: (This amendment affirms the superiority of the certification election over the
direct certification which is no longer available now under the change in said provision.
Who files petition for certification election?
a. By a registered union or by an employer
b. Any legitimate labor organization, including a national union or federation that has
issued a charter certificate to its local/chapter or the local/chapter itself
NOTE:
(1)Employer is not considered as a party, thus, cannot oppose a petition for
certification election. Employers participation is limited only to:
a. Being notified or informed of petition of such nature; and
b. Submitting the list of employees during the pre-election conference
c. Any employee has the right to intervene
Intervention
Who will file?
Other unions which are interested in joining a certification election
NOTE:
(1)
Whether petitioner or intervenor, the union has to be an LLO
(2)
A union that has no legal personality to file a petition for CE has no
personality either to file a petition-in-intervention.
Where to file the PCE?
-with the Regional Office which issued the petitioning unions certificate of registration or
certificate of creation of chartered local
Who will hear the petition?

-Med-Arbiter
what if there are two or more petitions involving the same bargaining unit are
filed in one Regional Office?
-shall be automatically consolidated
Note: If filed in different regional offices, the regional office in which the petition was first
filed shall exclude the others
When to file the PCE?
Has CBA- only within the last 60 days of the 5th year of the CBA
No CBA- anytime outside the 12-month bar
Note: (there are exceptions. Please refer to page 455)
Forms and Contents of Petition (pages 4555-456)
ACTION ON PETITION:
A. Preliminary conference
-to be held within 10 working days from the Mediator-Abiters receipt of petition
-meant to determine whether the PCE should be processed further or be dismissed
B. Hearings and Pleadings
-conduct of hearing cannot exceed 15 days from the date of the scheduled
preliminary conference
- no extensions of time
- failure to appear is deemed waiver of right to be heard
-within 10 days from last hearing med arbiter will issue order granting or denying
the petition
C. Denial: 8 grounds
1. Non-appearance
-non appearance of the petitioner for two consecutive scheduled conferences
before the Mediator-Arbiter despite notice
2. Illegitimacy: unregistered union
3. Illegitimacy: no charter
4. absence of employment relationship (between all the members of the
petitioning union and the establishment where the proposed bargaining unit is
sought to be represented
5. the election bar- the 12-month bar
-

filing of a petition within one year from the date of recording of the voluntary
recognition, or within the same period from a valid certification, consent or
run-off election where no appeal on the results of the certification, consent or
run-off election is pending.

6. election bar- negotiation or deadlock

- where a duly certified union has commenced and sustained negotiations with
the employer in accordance with Art. 260 of the LC within the 1-year period
referred to in Section 14 (d) of the Implementing Rules or where there exists
a bargaining deadlock which has been submitted to conciliation or arbitration
or has become the subject of a valid notice of strike or lockout where an
incumbent or certified bargaining agent is a party.

NOTE:
(1)Deadlock Bar rule- a petition for certification election can only be
entertained if there is no pending bargaining deadlock submitted to
conciliation or arbitration or had become the subject of a valid notice of
strike or lockout.
(2)An artificial deadlock a deadlock prearranged or preserved by collusion
of the employer and the majority union-is deception of the workers,
hence, not a barrier to a petition for C. E.
7. Election Bar- existing CBA
8. Election Bar- Lack of support
-in an organized establishment, the failure to submit the 25% signature
requirement to support the filing of the petition for certification of election.

20) Luana 467-481

Collective Bargaining and Administration of a agreement
Pgs. 467-481
Part.2 Employee participation and representation
Two different 60-day periods (Pg. 466-467)
The freedom period under Articles 264 and 267 is different from and ought not to be mistaken
for the other 60-day period mentioned in Art. 263. The latter speaks of the proper time to
propose modifications to the existing CBA. It is the notice period for renegotiation of an
expiring CBA. It is a notice from either or both the management and the bargaining union. This
60-day period under Art. 263 does not and cannot refer to the representative status of the
incumbent union since the acquisition or loss of representative status is to be resolved through a
certification election (CE), and not through negotiation with the ER. Therefore, the 60-day period
under Art.263 refers to modifying or renegotiating the CBA provisions other than
representational, also called economic provisions. It occurs towards the end of the 2 nd or 3rd year
of the CBA. ITt is an economic event between the negotiating union and the management.
The freedom period, in contrast, is the last 60 days of the CBAs 5 th year of the representational
aspect. The freedom period is a political event involving only the rival unions and the voters-EEs.
Registered CBA (Pg.467)
To bar a certification election, it is no longer necessary that the CBA be verified; it is enough
that it is registered in accordance with Art. 236.
Contract-bar rule applied: Extended CBA under deadlock (Pg. 467-468)
No petition for certification election may be filed before the onset of the freedom period nor after
such period. The old CBA is extended until a new one is signed.
In the case of National Congress of Unions in the Sugar Industry of the Philippines vs. FerrerCalleja, et.al., GR No. 89609, January 27, 1992, the court held: Sec. 6, Rule V (now Sec. 3, Rule
XI), Book V of the Implementing Rules provides that a petition for CE can only be entertained
within the 60 dys period to the expiry date of an existing CBA. Otherwise put, the rule prohibits
to the petition for CE during the existence of a CBA except within the freedom period, when the
said agreement is about to expire. The petitioners contention that the expiration of the CBA in
1987 private respondent NFSW-FGT-KMU and the company had not concluded a new CBA, does
not render the contract-bar rule inapplicable. This so because Art. 253 of the LC provides that: it
shall be the duty of both parties to keep the status quo and to continue in full force and effect
the terms and conditions of the existing agreement during the 60-day period and/or until a new
agreement is reached by the parties. Despite the lapse of the formal effectively of the CBA, the
law still considers the same as continuing in full force and effect until a new one is executed.
Thus, the contract bar rule still applies.

Contract- bar rule applied: Unproved Surreptitious Registration of CBA (Pg. 469)
Even if the existing CBA is registered surreptitiously, as alleged by the petitioner union, but no
evidence is presented proving the alleged surreptitious registration, the petition for CE cannot be
granted. The contract-bar rule applies.
Contract-bar rule NOT applied:
a

Defective CBA (Pg. 469)

Associated Labor Union (ALU) vs. Ferrer-Calleja, GR No. 77282, May 5, 1989
Facts: The BLR director ordered the holding of a certification election, ruling that the
contract-bar rule does not apply in the present controversy because the CBA involved was
defective as it was not duly submitted in accordance with the IRR. There is no proof
tending to show that the CBA has been posted in at least two conspicuous places in the
establishment at least 5 days before its ratification and that it has been ratified by the
majority of the EEs in the bargaining unit.
Ruling: We find no reversible error in the challenged decision of the BLR director. A careful
consideration of the facts culled from the records of this case, especially the allegations of
petitioner itself yields the conclusion that the CBA in question is indeed defective, hence
unproductive of the legal effects attributed to it
To bar a CE, the CBA must be adequate in that it comprises substantial terms and
conditions of employment.

Referendum to Register an Independent Union (Pg. 470)

In one case the union, claiming to be a local union of the rank and file EEs of the China
City Restaurant, filed with the DOLE a petition to Conduct a referendum to determine the
will of the China City EEs to have the Union registered independently. The arbiter granted
the petition but prohibited the union or its members from disaffiliating from the mother
union prior to the 60-day freedom period of the existing CBA.
Here, what was involved is a referendum to be conducted among the rank and file EEs to
determine WON they are in favor of the having an independently registered union in the
establishment. This referendum is neither union disaffiliation nor severance; it is not
disallowed by law even while a CBA exists. Holding referendum is not banned by the
contract bar rule.

CBA signed before or within freedom period (Pg. 470-471)

To renegotiate the CBA before or during the freedom period is expressly allowed by D.O.
No. 40-03. Its Sec. 14, Rule VII states that the Med-Arbiter may dismiss the petition for CE
on any of the following grounds xxx (b) the petition was filed before or after the freedom
period duly registered CBA; provided that the 60-day period based on the original CBA
shall not be affected by any amendment, extension or renewal of the CBA. Even clearer
and more categorical is Sec. 24 (renumbered as 25) of the same Rule VIII, which says:
Effect of Early Agreement: The representation case shall not be adversely affected by
a CBA registered before or during the last 60 days of a subsisting agreement or during the
pendency of the representation case.
What would be the effect on the renegotiated CBA if a union other than the one that
executed it should win the CE?
In a pertinent case, it was held that the union thus certified would have to respect the
contract, but that it may bargain with the management to shorten the life of the contract if
it is too long.
When a CBA is entered into at the time when the petition for CE had already been filed by
a union and was then pending resolution, the said CBA cannot be deemed permanent,
precluding the commencement of the negotiations by another union with the
management. In the meantime, however, so as not to deprive the workers of the benefits
of the said agreement, it shall be recognized and given effect on a temporary basis,
subject to the results of the CE. The agreement may be continued in force if the union that

negotiated it is certified again as the exclusive bargaining representative or may be

rejected and replaced in the event the rival union emerges as the winner.
CBA Signed despite suspension order may be declared invalid (Pgs. 471-472)
Also in 1989, the Court ruled that a CBA signed while there was a pending representation case
was invalid. The court said: basic to the contract-bar rule is the proposition that the delay of the
right to select to representatives can be justified only where stability is deemed paramount.
Excepted from the contract-bar rule are certain types where the identity of the representatives is
in doubt. Any stability derived from such contracts must be subordinated to the EEs freedom of
choice because it does not establish the type of industrial peace contemplated by the law. (PH
Association of Free Labor Unions vs. Estrella, GR No. 45323, February 20, 1989)
Again in a 2005 decision, the Court invalidated the hasty recognition of a union and the signing
of a CBA with that union where such acts were done while there was a pending petition for CE by
another union.
3.9h Eight Ground: Election Bar: Lack of Support (Pgs. 472)
The 8th reason for possible dismissal of a PCE (petition for Certification Election) is the lack of
support to the petition. Art. 267 requires that the PCE in an organized establishment which may
be filed within the freedom period should be supported by at least 25% of the bargaining unit.
In a company still unorganized the worker should find it easy to organize, but once a union has
established itself as the EEs representative, it should not be so easy for another union to replace
the incumbent. Trying to do so will disturb the peace in the enterprise. To justify the disturbance,
it must appear that a sizeable portion of the EEsat least 25%-- desires to have a new union.
Without this minimum support the challenge to the incumbent looks like a nuisance.
The CBU, Not the Enterprise (Pg. 473)
If a companys rank and file EEs are unionized but the supervisor are not, does the supervisors
petition need the 25% minimum support?
No, because the company is considered unorganized. The petition for CE involves only the
supervisors, not the rank and file. Insofar as the supervisors are concerned, the establishment
is considered ununionized. Hence, the requirement for 25% support to the petition does not
apply.
IOWs, in deciding whether the 25% requirement is applicable or not, the law considers the CBU
involved, not the whole enterprise. This, again, makes it easy for workers to unionize, a basic
objective of labor relations law.
Election despite lack of 25% support (Pg. 473)
Compliance with the said requirement need not even be established with absolute certainty. The
Court has consistently ruled that even conceding that the statutory requirement of 30% (now
25%) of the labor force asking for a CE had not been strictly complied with, the director (now the
Med-Arbiter) is still empowered to order that it be held precisely for the purpose of ascertaining
which of the contending labor organizations shall be the exclusive collective bargaining agent.
(Atlas Free Workers Union [AFWU-PSSLU] Local vs. Noriel, GR No. L-51905, May 26 1981)
The requirement then is relevant only when it becomes mandatory to conduct a certification
election. In all other instances, the discretion, according to rulings of this Tribunal, ought to be
ordinarily exercised in favor of a petition for certification. (National Mines and Allied Workers
Union [NAMAWU-UIF] vs. Luna, et. Al.,GR No. L-46722, June 15, 1978)
Effect of Withdrawal of signatories (Pg. 473-474)
If a petition for a certification election lacks the 25% support because a sizeable number of union
members has withdrawn their membership, may the petition still be granted? Or must it be
dismissed?
In the case of La Suerte Cigar and Cigarette Factory vs. Director, 123 SCRA 679 (1983): On the
issueWON the withdrawal of 31 union members from NATU affected by the petition for CE
insofar as the 30% (now 25%) requirement is concernedWe reverse the order of the respondent
BLR Director it appearing undsputably that the 31 union membes had withdrawn their support to
the petition before the filing of said petition. It would be otherwise if the withdrawal was made

after the filing of the petition for it would be presumed that the withdrawal was not free and
voluntary. The presumption would arise that the withdrawal was procured through duress,
coercion or for valuable consideration. IOWs, the distinction must be that withdrawals made
before the filing of the petition are presumed voluntary unless there is convincing proof to the
contrary whereas withdrawals made after the filing of the petition are deemed involuntary.
If the withdrawal or retraction is made before the filing of the petition, the names of the EEs
supporting the petition are supposed to be held secret to the opposite party. Logically, any such
withdrawal or retraction shows voluntariness in the absence of proof to the contrary. Moreover, it
becomes apparent that such EES had not given consent to the filing of the petition, hence the
subscription requirement has not been met.
When the withdrawal or retraction is made after the petition is filed, the EEs who are supporting
the petition become known to the opposite party since their names are attached to the petition
at the time of filing. Therefore, it would not be unexpected that the opposite party would use foul
means for the subject EEs to withdraw their support.
3.10 Prohibited Ground for the Denial/Suspension of the petition (Pgs. 475- 476)
3.10a Commingling
The inclusion as union members of EEs outside the bargaining unit shall not be a ground for the
cancellation of the registration of the union.
3.10b Validity of registration
All issues pertaining to the validity of the petitioning unions certificate of registration or its legal
personality as a labor organization, validity of registration and execution of CBAs shall be heard
and resolved by the Reg. Dir. In an independent petition for cancellation of its registration
and not by the Mediator-Arbitrator in the petition for certification election, unless the petitioning
union is not listed in the Departments roster of LLOs or an existing CBA is not registred.
3.10c Authority to decide existence of ER-EE relationship; Med-Arbiters order appealable to
secretary
Does the Med-arbiter or the SOLE have the authority to determine the existence of an ER-EE
relationship between the parties in a petition for CE?
All issues pertaining to the existence of the ER-EE relationship or to the eligibility of a union
membership shall be resolved in the order or decision granting or denying the petition for CE.
IOWs, those issues do not stall the PCE and they are not grounds for dismissing a PCE.
As the authority to determine the ER-EE relationship is necessary and indispensable in the
exercise of jurisdiction by the Med-Arbiter, his finding thereon may only be reviewed and
reversed by the SOLE who exercises appellate jurisdiction under Art. 259 (now 271) of the LC as
amended.
Similarly, incidental to the power of the Med-Arbiter to hear and decide cases is the power to
determine eligibility of voters.
3.11 Employer a Bystander; Cannot Oppose PCE (Pgs. 476- 477)
In petitions for certification election, has the ER been transformed from being an intruder to
being a party?
The Supreme Court maintains in recent decisions that ERs are mere bystanders in CE
proceedings.
The ERs standing in representation disputes, such as petition for CE, has been definitely defined
by law R.A. No. 9481 of 2007 inserts an amendatory article that states:
Art. 258-A. Employer as Bystanders.In all cases, whether the petition for certification
election is filed by the ER or LLO, the ER shall not be considered a party thereto with a
concomitant right to oppose a petition for certification election. Xxxxxxxx
3.12 Action on the Petition; Approval (Pgs. 477-478)

If there exists no ground to dismiss or otherwise deny the petition for CE the Med-Arbiter has to
grant it.
The ruling for the conduct of a CE shall state the ff:
a
b
c
d
e

The name of the ER or establishment;

A description of the bargaining unit;
A statement that none of the grounds for dismissal exists;
The names of the contending labor unions which shall appear in the ff. order: the
petitioner unions in the order of the date of filing of their respective petitions; the forced
intervenor; and no union;
To afford an individual EE-voter an informed choice where the local/chapter is one of the
contending unions, a directive to an unregistered local/chapter or a federation/ national
union representing an unregistered local/chapter to personally submit to the election
officer its certificate of creation at least 5 working days before the actual conduct of the
CE. Non-submission of this requirement as certified by the election officer shall disqualify
the local/chapter from participating the CE; and
A directive upon the ER and the contending union(s) to submit within 10 days from receipt
of the order, the certified list of EEs in the bargaining unit, or where necessary, the
payrolls covering the members of the bargaining unit for the last 3 months prior to the
issuance of the order.

3.13 Appeal of Order granting or Denying Petition (Pgs. 478-479)

The only order that cannot be appealed is an order granting the conduct of a certification
election in an UNORGANIZED establishment. Any issue arising therefrom may be raised by
means of protest on the conduct and results of the CE.
The order granting the conduct of a CE in an ORGANIZED establishment and the decision
dismissing or denying the petition, whether in organized or unorganized establishment, may be
appealed to the Office of the Secretary within 10 days from receipt thereof. In short, denial of
any petition for CE is always appealable, but never appealable is the approval of any
PCE in an enterprise still ununionized. The reason is sound and simple: the law wants
to unionize the ununionized.
The appeal shall be verified under oath & shall consist of a memorandum of appeal specifically
stating the grounds relied upon by the appellant with the supporting arguments and evidence.
The memorandum of appeal shall be filed in the Reg. Office where the petition originated, copy
furnished the contending unions and the ER, as the case may be. W/in 24 hours from receipt of
the appeal, the Reg. Dir. shall cause the transmittal thereof together with the entire records of
the case to the Office of the Secretary.
Where no appeal is filed within the 10 day period, the med-arbiter shall enter the finality of the
order/decision in the records of the case and cause the transmittal of the records of the petition
to the Reg. Director.
A reply to the appeal may be filed by any party to the petition within 10 days from receipt of the
memorandum of appeal. The reply shall be filed directly with the Office of the Secretary.
The Secretary shall become final and executor after 10 days from receipt thereof by the parties.
No MR of the decision shall be entertained. Within 48 hours from notice of receipt of decision by
the parties and finality of the decision, the entire records of the case shall be remanded to the
Reg. Office of origin for implementation. Implementation of the decision shall not be stayed
unless restrained by the appropriate court.
May a CE be held legally upon petition of Union B while a petition for CE earlier filed by Union A is
pending appeal at the Office of the Secretary? NO, the appeal should be resolved first. (Samahan
ng mga Manggagawa sa Filsystems vs. Sec. of Labor, GR No. 128067, June 5, 1998)
3.14 Conducting the CE (Pgs. 480-481)
3.14a pre-election Conference
*could not summarize because procedure siya, and as illustrated in the book: page 480- 481.
Raffle of the case. - Within twenty-four (24) hours from receipt of the notice of entry of final
judgment granting the conduct of a certification election, the Regional Director shall cause the
raffle of the case to an Election Officer who shall have control of the pre-election conference and
election proceedings

Pre-election conference. - Within twenty-four (24) hours from receipt of the assignment for the
conduct of a certification election, the Election Officer shall cause the issuance of notice of preelection conference upon the contending unions and the employer, which shall be scheduled
within ten (10) days from receipt of the assignment.
The pre-election conference shall set the mechanics for the election and shall determine, among
others, the following:
(a) date, time and place of the election, which shall not be later than forty-five (45) days
from the date of the first pre-election conference, and shall be on a regular working day
and within the employer's premises, unless circumstances require otherwise;
(b) list of eligible and challenged voters;
(c) number and location of polling places or booths and the number of ballots to be
prepared with appropriate translations, if necessary;
(d) name of watchers or representatives and their alternates for each of the parties during
election;
(e) mechanics and guidelines of the election.
Waiver of right to be heard. - Failure of any party to appear during the pre-election conference
despite notice shall be considered as a waiver to be present and to question or object to any of
the agreements reached in said pre-election conference. Nothing herein, however, shall deprive
the non-appearing party or the employer of its right to be furnished notices of subsequent preelection conferences and to attend the same.
Minutes of pre-election conference. - The Election Officer shall keep the minutes of matters
raised and agreed upon during the pre-election conference. The parties shall acknowledge the
completeness and correctness of the entries in the minutes by affixing their signatures thereon.
Where any of the parties refuse to sign the minutes, the Election Officer shall note such fact in
the minutes, including the reason for refusal to sign the same. In all cases, the parties shall be
furnished a copy of the minutes.
The pre-election conference shall be completed within thirty (30) days from the date of the first
hearing.
Posting of Notices.- The Election Officer shall cause the posting of notice of election at least ten
(10) days before the actual date of the election in two (2) most conspicuous places in the
company premises. The notice shall contain:
(a) the date and time of the election;
(b) names of all contending unions;
(c) the description of the bargaining unit and the list of eligible and challenged voters.
The posting of the notice of election, the information required to be included therein and the
duration of posting cannot be waived by the contending unions or the employer.
3.14b Conducting the CE: the Voters
Section 5. Qualification of voters; inclusion-exclusion. - All employees who are members of the
appropriate bargaining unit sought to be represented by the petitioner at the time of the
issuance of the order granting the conduct of a certification election shall be eligible to vote.
The list of voters should be based on the ER-certified list of EEs in the CBU or payrolls. If the ER
does not submit the list or payrolls, the union may submit its own list.
Even the list of EEs submitted to the SSS may be used as a basis to comprise the list of voters for
the CE. IT should ideally be the payroll should have been used for the purpose of the election.
However, the unjustified refusal of a company to submit the payroll in its custody, despite efforts
to make it produce it, compelled resort to SSS list as the next best source of information. After
all, the SSS list is a public record whose regularity is presumed. (Samahan ng manggagawa sa
Pacific Plastic vs. Hon. Laguesma, GR No. 111245, January 31, 1997).

Only the EEs who are directly employed by the ER and working along then activities to which the
ER is engaged and linked by ER-EE relationship are qualified to participate in the CE, irrespective
of the period of employment. (Eastland Mfg. Corporation vs. Noriel, 111 SCRA 674).
In case of disagreement over the voters list or over the eligibility of voters, all contested voters
shall be allowed to vote. But their votes shall be segregated and sealed in individual envelopes n
accordance with Secs. 10 and 11 of Rule 9 (IX), D.O. No. 40-03.

21) Macapobre 482-496

ARTS. 267-271
3.14b Conducting the C.E.: the Voter
Qualification of voters; inclusion-exclusion
ALL employees who are members of the appropriate bargaining unit sought to be
represented by the petitioner at the time of the issuance of the order granting the
conduct of a certification election shall be eligible to vote.
The list of voters should be based on the employer-certified list of employees in the
CBU or payrolls. If the employer does not submit the list or payrolls, the union may
submit its own list. Even the list of employees submitted to the SSS may be used as
basis to comprise the list of voters for the C.E.
Only the employees who are directly employed by the employer and working along
the activities to which the employer is engaged and linked by employer-employee
relationship are qualified to participate in the certification election, irrespective of the
period of their employment.
Employees of an independent contractor who undertakes to do a piece work for
his account and responsibility, with minimum interference on the part of the other
contracting party, not being laborers or employees of the latter, are not qualified to
participate therein.
In case of a disagreement over the voters list or over the eligibility of voters, all
contested voters shall be allowed to vote. But their votes shall be segregated and sealed
in individual envelopes.
Dismissed Employee
An employee who has been dismissed from work but has contested the legality of
the dismissal in a forum of appropriate jurisdiction at the time of the issuance of the
order for the conduct of a certification election shall be considered a qualified voter,
UNLESS his/ her dismissal was declared valid in a final judgment at the time of the
conduct of the certification election.
Probationary Employees
In a certification election, all rank and file employees in the appropriate bargaining
unit are entitled to vote.
Collective bargaining covers all aspects of the employment relation and the
resultant CBA negotiated by the certified union binds all the employees in the bargaining
unit. Hence, all rank-and-file employees, probationary or permanent, have a substantial
interest in the selection of the bargaining representative. The Code makes no distinction

as to their employment status as basis of eligibility in supporting the petition for

certification election. All they need to be eligible to support the petition is to belong to
the bargaining unit.
INK Believers May Vote
In the CE, all members of the unit, whether union members or not, have the right
to vote. Union membership is not a prerequisite. If majority of the unit members do not
want a union, as expressed in the CE, such majority decision must be respected.
Reyes, et. al. vs. Cresencio B. Trajano, et al. and Tri union Employees Union, et. al.
G.R. No. 84433, June 2, 1992
xxx. The respondents argument that the petitiners are disqualified to vote
because the are not constituted into a duty organized labor union-members of the INK
which prohibits its followers, on the religious grounds, from joining or forming any labor
organization- and hence, not one of the unions which vied certification as sole and
exclusive bargaining representative, is specious (especially misleadingly attractive).
Neither law, administrative rule nor jurisprudence requires that only employees affiliated
with any labor organization may take part in a certification election. On the contrary, the
plainly discernible intendment of the law is to grant the right to vote to all bona fide
employees in the bargaining unit, whether they are members of a labor organization or
not.
3.14c Conducting the CE: The Voting
The voting shall open on the date and time agreed upon in the pre-election
conference.
Secrecy and sanctity of the ballot
To ensure secrecy of the ballot, the Election Officer, together with the authorized
representatives of the contending unions and the employer, shall, before the start of the
actual voting, inspect the polling place, the ballot boxes and the polling booths.

Preparation of ballots
The election officer shall prepare the ballots in English and Filipino or the local
dialect, corresponding to the number of votes and a reasonable number of extra ballots.
All ballots shall be signed at the back by the Election Officer and authorized
representative of each of the contending unions. A party who refuses or fails to sign the
ballots waives its right to do so and the Election Officer shall enter the fact of refusal and
the reason therefor in the records of the case.
Marking of Votes
The voter must put a cross(x) or check( ) mark in the square opposite the name of
the union of his choice or No Union if he does not want to be represented by any union.
If a ballot is torn, defaced or left unfilled in such a manner as to create doubt or
confusion or to identify the voter, it shall be considered spoiled. If the voter inadvertently
spoils a ballot, he/she shall return it to the Election officer who shall destroy it and give
him/her another ballot.

Procedure in the challenge of votes

The ballot of the voter who has been properly challenged during the pre-election
conference, shall be placed in an envelope which shall be sealed by the election officer
in the presence of the voter and the representatives if the contending unions. The
Election officer shall indicate on the envelope the voters name, the union challenging
the voter, and the ground for the challenge. The sealed envelope shall then be signed by
the Election Officer and the representatives if the contending unions. The Election Officer
shall note all challenges in the minutes of the election proceedings and shall have
custody if all envelopes containing the challenged votes. The envelopes shall be opened
and the question of eligibility shall be passed upon by the Mediator-Arbiter only if the
number of segregated votes will materially alter the results of the election.
On-the-spot Questions
The election Officer shall rule on any question relating to and raised during the
conduct of the election. In no case, however, shall the election officer rule on any of
the grounds for challenge specified in the immediately preceding section.
Protest; when Perfected
Any party-in-interest may file a protest based on the conduct or mechanics of the
election. Such protest shall be recorded in the minutes of the election proceedings.
Protest not so raised are deemed waived.
The protesting party must formalize its protest with the Med-arbiter, with specific
grounds, arguments and evidence, within five (5) days after the close of the election
proceedings. If not recorded in the minutes and formalized within the prescribed period,
the protest shall be deemed dropped.
U.L.P. in Relation to Election
It is unfair labor practice for the company to suspend the workers on the ground of
abandonment of work on the day on which the pre-election conference had been
scheduled. It is employees right to hold a certification election, the exercise of which is
their sole prerogative.
A company commits unfair labor practice where it issued suspension and
termination orders while the employees are in the midst of a certification election
preliminary to a labor-management conference to normalize employer-employee
relations.
3.14d Conducting the CE: Canvassing of Votes
The voting shall close in the date and time agreed upon in the pre-election
conference. Canvassing shall immediately follow.
Canvassing of Votes
The votes shall be counted and tabulated by the Election Officer in the presence of
the representatives if the contending unions. Upon completion of the canvass, the
Election Officer shall give each representative a copy of the minutes of the election
proceedings and results of the election. The ballots and the tally sheets shall be sealed in
an envelope and signed by the Election Officer and the representatives of the contending
unions and transmitted to the Med-Arbiter, together with the minutes and results of the
election, within 24 hours from the completion of the canvass.
Where the election is conducted in more than one region, the consolidation of
results shall be made within 15 days from the conduct thereof.

Failure of the representative of the contending unions to appear during the election
proceedings and canvass of votes shall be considered a waiver of the right to be present
and to question the conduct thereof.
3.14e Who Wins in the C.E.: Proclamation and Certification

(PAGE 486)

In order to have a valid election, at least, a majority of all eligible voters in the unit
must have cast their votes.
Within 24 hours from final canvass the votes, there being a valid election; the
Election Officers shall transmit the records of the case to the Med-Arbiter who shall,
within the same period from receipt of the minutes and results of election, issue an order
proclaiming the results of the election and certifying the union which obtained a majority
of the valid votes cast as the sole and exclusive bargaining agent in the subject
bargaining unit, under any of the following conditions:
a No protest was filed or, even if one was filed, the same was not perfected within
the five-day period for perfection of the protest
b
No challenge or eligibility issue was raised or, even if one was raised, the
resolution of the same will not materially change the results of the elections.
The winning union shall have the rights, privileges and obligation of a duly certified
collective agent from the time of certification is issued.
Where majority of the valid notes cast results in No Union obtaining the majority,
the Med-Arbiter shall declare such fact in the order.
Certification of Collective Bargaining Agent
The union which obtained a majority of the valid votes cast shall be certified as the
sole and exclusive bargaining agent of all employees in the appropriate bargaining unit
within five (5) days from the day of the election, provided no protest is recorded in the
minutes of the election.
3.14f Failure of Election; Motion for a Remedial Election
Failure of Election
Where the number of votes cast in a certification or consent election is less than
the majority of the number of eligible voters and there are no material challenged votes,
the Election Officer shall declare a failure of election in the minutes of the election
proceedings.
Effect of failure of Election
A failure of election shall not bar the filling of a motion for the immediate holding
of another certification or consent election within 6 months from date of declaration of
failure of election.( Some practitioners call this a remedial election.)
Action on the motion
Within 24 hours from receipt of the motion, the Election officers shall immediately
schedule the conduct of another certification or consent election within 15 days from
receipt of the motion and cause the posting of the notice of certification election at least
10 days prior to the scheduled date of election in 2 most conspicuous places in the
establishment.
3.14g Run-off Election

When an election which provides for 3 or more choices results in none of the
contending unions receiving a majority of the valid votes cast, and there are no
objections or challenges which if sustained can materially alter the results, the Election
Officer shall motu proprio conduct a run-off election within10 days from the close of the
election proceedings between the labor unions receiving the two highest number of
votes; provided, that the total number of votes for all contending unions is at least
50% of the number of votes cast.
No Union shall not be a choice in the run-off election.
Notice of run-off elections shall be posted by the Election Officers at least 5 days before
the actual date of run-off election.
Qualification of voters in the run-off election
The same voters list used in the certification election shall be used in the run-off
election. The ballots in the run-off election shall provide as choices the unions receiving
the highest and second highest number of votes cast. The labor union receiving the
greater number of valid votes shall be certified as the winner.
To summarize, a run-off election is proper if five concurrent conditions exist,
namely:
1 A valid election took place because majority of the CBU members voted
2 The election presented at least three choices, e.g. Union One, Union Two, and No
Union, meaning there are at least two union candidates
3 Not one of the unions obtained the majority of the valid votes
4 The total number of votes for all the unions is at least 50% of the votes cast
5 There is no unresolved challenge of voter or election proper
EXAMPLE:
1 The CBU has 100 members, fifty voted: Union One received 30 votes; Union
Two, 15 and No Union, 5. Is a run-off election proper: No, because in the first
place there is no valid election since the votes cast are less than 51(majority of the
CBU voters). There is failure of election. The status quo is maintained, that is, the
company is ununionized. But another C.E. may be called within 6 months.
2 The CBU has 100 members and everyone voted: 25 for Union one, 20 for Union
two and 55 for No Union. NO invalid votes. Is run-off election proper? No.
Because although there is a valid election the 45 votes for unions are less than
50% of the votes cast. Status quo is maintained.
3 The CBU has 100 members. 80 voted: 30 for Union one, 15 for Union two, 15
for Union three, and 20 for NO Union. No invalid votes. Which union won?
None, because not one got the majority of the 80 valid votes. Is run-off election
proper? Yes, because the contending unions obtained 60 votes which even exceeds
of the votes cast. The run-off will be between the labor unions receiving the the
two highest number of votes. In this example, Union one will face both union
two and union three because the two tied for the second highest number of
union votes. The rematch is not between two unions but between two highest
votes.. If they did not tie, only the union that received the higher vote will have a
rematch with Union one. The No-union choice is eliminated from the run-off.
3.15 Appeal to Secretary as to Election Result
Section 21. Appeal; finality of decision
The decision of the Med-Arbiter may be appealed to the Secretary within 10 days
from receipt by the parties of a copy thereof.

The appeal shall be under oath and shall consist of a memorandum of appeal,
specifically stating the grounds relied upon by the appellant with supporting arguments
and evidence.
Where no appeal is filed within the 10 day period, the order/ decision shall become
final and executory and the Med-arbiter shall enter this fact into the records of the case.
Section 22. Where to Appeal
The memorandum of appeal shall be filed in the regional office where the petition
originated, copy furnished the contending unions and the employer, as the case may be.
Within 24 hours from receipt of the appeal, the regional directors shall cause the
transmittal thereof together with the entire records of the case to the office of the
secretary.
Section 23. Period to Reply
A reply to the appeal may be filed by any party to the petition witin 10 days from
receipt of the memorandum of appeal. The reply shall be filed directly with the Office of
the Secretary.

Section 24. Decision of the Secretary

The Secretary shall have 15 days from receipt of the entire records of the petition
within which to decide the appeal. The decision of the Secretary shall become final and
executory after 10 days from receipt thereof by the parties. No motion for
reconsideration if the decision shall be entertained.(already declared unconstitutional by
SC because it violates the principle of exhaustion of administrative remedies. Hence, you
can file a motion for reconsideration)

Section,25. Transmittal of records to the regional office

Within 48 hours from notice of receipt of decision by the parties and finality of the
decision, the entire records of the case shall be remanded to the regional office of origin
for implementation. Implementation of the decision shall not be stayed unless restrained
by appropriate court.
3.16 Election Irregularities, Protest by Employer
The manner in which the election was held could make the difference between
industrial strife and industrial harmony in the company. What an employer is prohibited
from doing is to interfere with the conduct of the certification election for the purpose of
influencing its outcome. But certainly an employer has an abiding interest in seeing to it
that the election is clean, peaceful, orderly, and credible..xxxx this court invalidated a
certification election upon showing of disfranchisement, lack of secrecy in the voting and
bribery.
THIRD METHOD: CONSENT ELECTION (PAGE 491)
Voluntary recognition and certification election, two of the methods to determine
which union will bargain with the employer. The third and last method is called consent
election.
Difference (certification election vs. consent election)

Certification election is ordered by the department while a consent election is

voluntarily agreed by the parties, with or without the intervention of the department.

*Two or more unions are involved in a consent election. And like certification election,
consent election may take place in an unorganized or organized establishment.

Effect of Consent Election

Where a petition for certification election had been filed, and upon the intercession
of the Med-Arbiter, the parties agreed to hold a consent election, the results shall
constitute a bar to the holding of a certification election for 1 year from the holding of
such election. Where an appel has been filed from the results of the consent election, the
running of the 1 year period shall be suspended until the decision on appeal has become
final and executory.
Where no petition for certification election was filed but the parties themselves
agreed to hold a consent election.
5. The winner as sole and exclusive representative
The term exclusive means that the employer must treat with the representative
to the exclusion of all other claiming bargaining agents.
5.1 Exclusive Bargaining Agent Represents Even the Minority Union
When the certified union files a claim against the employer and the case is decided
in due course, the decision binds even the minority union which, therefore, is barred
from filing another case for the same cause of action against the same employer. The
action is barred by the principle of res judicata.
However, although the union has every right to represent its members in the
negotiation regarding the terms and conditions of their employment, it cannot negate
their wishes on matters which are purely personal and individual to them. When the
company gave them the opportunity to choose, and they voluntarily exercised their
choice, their decision should be respected.
5.2 Protection and Capacity of the Loser; the Duty of Fair Representation
If the majority union neglects the interest of employees in the minority union, if
the duty of fair representation is violated, what can the minority do?
The minority union, although a loser in the election, does not lose its character as
a lawful labor organization entitled to protection under Article 256 which makes it
unlawful for any person to abridge the right to self-organization. Art. 266, despite
presence of a bargaining agent, an individual employee or group of employees shall
have the right at any time to present grievances to their employer. For negotiating and
administering a CBA, the majority union is therefore the sole and exclusive
representative, but for non-CBA issues the minority union may act as a group of
employees to present grievances to the employer.

May a minority union charge the employer with U.L.P?

The protection provided by Article 256 and the U.L.P. acts proscribed in Articles
257-258 do not distinguish between bargaining agent or non-bargaining agent. What is

being shielded from U.L.P. is the right to self-organization and not only the right to
collectively bargain. It can even engage in peaceful concerted activity. But it cannot
resort to work stoppage or strike because strike is reserved to an exclusive bargaining
representative.
5.3 Is the Bargaining Union a Majority Union?
The Bargaining union does not always comprise the numerical majority in the
bargaining unit. Article 267 requires, for a union to win in a C.E., only a majority of the
valid votes cast. The majority of the valid votes may be lesser than the majority if the
employees in the bargaining unit.
To illustrate:
The CBU has 100 members. The union to represent them should have been
selected by at least 51 of the 100. But under Art. 267, a union can be declared the
winner even if it received only a majority of the valid votes cast which, can be lesser
than the majority of the members. If 51 voted and 30 of the valid votes went the Union
one, this union becomes the bargaining union although, in fact, less than 1/3 of the CBU
voted for it.
5.4 May the Bargaining Agent Represent Retired Employees?
When the retired employees were requesting that their retirement benefits be
granted, they were not pleading for generosity but were merely demanding that their
rights, as embodied in the CBA, be recognized. Thus, when an employee has retired but
his benefits under the law or the CBA have not yet given, he still retains, for the purpose
of prosecuting his claims, the status if an employee entitled to the protection of the
Labor Code, one if which is the protection of the labor union. While the individual
complainants are the real party in interest in issues involving money claims and benefits,
the union, however, is not denied its right to sue on behalf of its members.

Art. 272
1.CONTRACT ADMINISTRATION AS PART OF THE DUTY TO BARGAIN
The duty to bargain continues into the contract administration stage. In effect,
contract negotiations are the legislative process of collective bargaining; the day-to-day
working out of plant problems is its administrative or judicial aspects.
2. C.B.A., LAW BETWEEN THE PARTIES
The provision of the collective bargaining agreement must be respected since it
terms and conditions constitute the law between the parties. Those who are entitled to
its benefits can invoke its provisions. IN the event that an obligation therein imposed is
not fulfilled, the aggrieved party has the right to go to court for redress.

22) Managbanag 497-511

2. C.B.A., LAW BETWEEN THE PARTIES
- provisions of the collective bargaining agreement (CBA), during its lifetime, constitute the law
between the parties
- nonfulfillment of the obligation gives the aggrieved party a right to go to court for redress

Summary of Cases:
An employer, who unilaterally alters or changes a term or condition of employment in the
CBA, violates his duty to bargain collectively.
The employer who denies the privileges and benefits of its drivers and helpers by trying to
pass them off as employees of its salesmen and propagandists have failed to live up in
good faith to the terms of its CBA and hence a serious violation of the duty to bargain
collectively and constituted unfair labor practice.
The CBA, during its lifetime, constitute the law between the parties and cannot b impaired
by subsequent rule of the Minister of Labor.
Holy Cross of Davao College vs. Holy Cross of Davao Faculty UnionKAMAPI G.R. No.
156098, June 27, 2005
Legaspi, a teacher in the petitioner school, requested for a study leave of 18 months with
salary and allowance, a benefit provided in their 1997 CBA, but was denied and only
granted a 12-month study leave without pay. The school reasoned that she was not
entitled to such benefit under the schools Policy Statement and Guidelines for Trips for
professional Growth, issued in 1998. Said policy would grant financial assistance only if
the faculty member would pursue a higher degree and not just a certificate as in the case
of Ms. Legaspi.
The court ruled that Ms. Legaspi should not be barred from the benefits under the CBA.
Unilaterally imposed orders or rules qualifying the terms contained in the agreement are
subordinate to the CBA. Such rules are merely suppletory and can neither contradict nor
undermine the terms found in the CBA.
2.1 Construing the Contract
- CBA, being a contract, the rules in the Civil Code on interpretation of contracts should govern
- if the terms of the contract are clear, the literal meaning of the stipulations shall control, but
if the words are contrary to the evident intention of the parties, the latter shall prevail
- any doubts or ambiguity in the contract shall be resolved under Art. 1702 of the CC that: In
case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety
and decent living for the laborer
2.2 Proposal contained in minutes but Not in the CBA Itself
- not part of the CBA and thus cannot serve as basis of a charge of violating the CBA or of
bargaining in bad faith
A proposal not embodied in the CBA is not a part thereof and will remain as just a
promise, the implementation of which cannot be validly demanded under the law.
2.3 Zipper Clause
- a device to forestall the negotiation proposals after the CBA has been signed
- it is a stipulation in the CBA which indicates that issues which could have been negotiated
but not contained in the CBA cannot be raised for negotiation one the CBA is already in effect
3. LAW DEEMED WRITTEN IN CONTRACT
- an existing law enters into and forms part of a valid contract without the need for the parties
expressly making reference to it. Unless such law is clearly excluded therefrom and granting
such exclusion is allowed.
4. BINDING EFFECT OF AGREEMENT

- since the CBA is a joint and several contract entered into by the union, the agent of the
members, with an employer, a union member employed under such agreement is bound by the
provisions thereof
4.1 Persons Entitled to Benefits
-benefits of the contract extend even to non-member employees
4.2 Managers Not Entitled to CBA Benefits; Exception
- managers are not allowed to unionize and thus cannot claim the benefits contained in the
CBA negotiated by the workers under them
- managerial employees cannot likewise share in the concessions obtained by the labor union
through collective negotiation, unless there is an agreement to the contrary
- the employer is not prevented from granting benefits to managerial employees equal to or
higher than those given to union members
4.3 Effect of Collective Agreement on the Individual Contracts of Employment
- union members are precluded from further entering into individual contracts of employment
- but if the agreement merely fixes wages and working conditions, the employer may enter
into particular contracts of employment with his employees
5. ENFORCEABILITY AGAINST TRANSFEREE OF ENTERPRISE
5.1 Purchase of Assets
- labor contracts (employment contracts and collective bargaining agreements), being in
personam, are binding only between the parties and are not enforceable against a transferee of
an enterprise
- the constitution protects the right of employers to select his employees and to decide when
to engage them, and such can only be restricted by law through the exercise of police power
- general rule: there is no law requiring a bona fide purchaser of assets of an on-going
concern to absorb in its employ the employees of the latter
5.2 Exceptions
- the parties are liable to the employees if the transaction between them are colored or
clothed with bad faith (see topic: Sale in Bad Faith under Art. 258 comments, p. 312)
5.3 Merger and Consolidation
- merger takes places when two or more corporations join into a single corporation which is
one of the merging corporations; the separate existence of the other constituent corporations
ceases
- consolidation occurs when two or more corporations join into a new single corporation; the
separate existence of all the constituent corporations ceases, except that of the consolidated
corporation
- the surviving or consolidated corporation shall be responsible and liable for all the liabilities
and obligations of each of the constituent corporation as if it had incurred such liabilities and
obligations itself. Any pending claim, action or proceeding brought by or against any of such
constituent corporations may be prosecuted by or against the surviving or consolidated
corporation, as the case may be. The rights of the creditors of liens upon the property of any of
such constituent corporations shall not be impaired by such merger or consolidation
5.4 Wiley Doctrine

- the surviving or consolidated corporation shall have the duty to bargain, when there is
relevant similarity and continuity of operations across the change in ownership as evidenced by
the wholesale transfer of the smaller corporations employees to the larger corporations plant
6. CHANGE OF BARGAINING AGENT; SUBSTITUTIONARY DOCTRINE
- the employees cannot revoke the validly executed CBA with their employer by the simple
expedient of changing their bargaining agent. The contract continues to bind the parties until its
expiration date. The new agent however, may negotiate the shortening of the contract period
7. GRIEVANCES
- a grievance is any question by either the employer or the union regarding the interpretation or
application of the CBA or company personnel policies or any claim by either party that the other
party is violating any provision of the CBA or company personnel policies
- a CBA will not be registered with the DOLE if it does not contain a provision on grievance
procedure or machinery which is a must provision required of all CBAs. In case a CBA is
submitted without such provision, the registrar should advise the parties to include a grievance
procedure / machinery therein before it is considered duly registered
7.1 By-passing the Grievance Machinery: U.L.P.
- all grievances are compulsorily subject to the grievance machinery. Such requirement being
an extension of the parties duty to bargain, the violation of which amounts to unfair labor
practice (ULP)
An aggrieved employee must exhaust all the remedies (grievance procedure/machinery)
available to him under the bargaining contract before he can resort to the courts for the
enforcement of his individual rights under such contract
A strike is illegal if such was carried out notwithstanding the provisions of the existing
CBA which provides for a specific procedure in dealing with grievances of union
members or simply stated, when such procedure was not availed of before the strike
was declared
Procedure for dismissal of employees in the CBA must be observed even if such
dismissal is with cause. Absent such adherence, the purported dismissal for just cause is
invalid, particularly when the company acted post haste and without affording the
employee the time and opportunity to present his side
-

A grievance may be brought directly to voluntary arbitration without passing through the
grievance machinery, especially when:

the grievance machinery has been proven to be ineffective in the past, or

when the parties inadvertently failed to include a grievance machinery provision in

their CBA

23) Marquez 512-526

7.2 Waiver of Grievance Machinery Procedure and Submission to VA
Apalisok vs. Radio Philippines Network, et al., G.R. No. 138094, May 29, 2003
Facts: Apalisok was asked to explain her alleged hostile, arrogant, disrespectful and
defiant behavior to her superior, the Station Manager. Eventually, she was dismissed.
She informed RPN that she waived her right to resolve her case through the grievance

machinery as t provided in the CBA; instead she filed her illegal dismissal complaint with
the NLRC which referred the case to NCMB.
By submission agreement, the EE and ER agreed to submit the case to the VA. VA
resolved in favor of the EE. On the appeal, it was reversed by the CA because it
considered the waiver of EE. CA considered it as relinquishment of EEs right. VA, then,
has no jurisdiction
Ruling: There was no relinquishment of right. Voluntary arbitration as a mode of settling
dispute was not forced upon respondents.
7.3 Structure and Procedure
In the absence of applicable provision in CBA:
1 A grievance committee shall be created within 10 days.
2 GR: Compose of at least 2 representatives from each members of bargaining unit
designated by the union and ER.
EXC: unless agreed by the parties
Procedure in handling Grievances
In the absence of applicable provision in CBA and company practice:
1 Present grievance or complain to shop steward
2 Shop steward will verify if the complaint/grievance is valid
3 If valid, bring the complain to immediate supervisor of the complainant
4 They will exert efforts to settle at their level
5 If no settlement is reached, it will be referred to grievance committee
6 The GC has 10 days to decide
Note: applies to interpretation or implementation of CBA, or order from appropriate
authority of in the establishment
8. Voluntary Arbitration
If the grievance is remained unresolved, EITHER PARTY may serve notice upon the other
of its decision to submit decision to voluntary arbitration.
1 Notice shall state the issue or issues to be arbitrated
2 Copy of such shall be furnished to:
a Board or
b VA or
c Panel of VAs
named in the CBA.
3 If the party upon whom the notice is served fails or refuses to respond w/in 7
days, VA shall commence the voluntary arbitration
4 When CBA does not designate, the parties will be called and appoint VA
5 If parties fails to select, the regional branch of the Board shall designated
6 The parties are afforded to the latitude to decide for themselves the composition of
the GM
Labor Arbitration the reference of labor dispute to the third person for determination
on basis of evidence and arguments presented by the parties who are bound to accept
the decision.
Voluntary Arbitration a contractual proceeding whereby the parties to any dispute
or controversy, in order to achieve speedy and inexpensive settlement, select their own
judge of their own choice and by consent submit their controversy to him for
determination.
Compulsory arbitration is the process of settlement of labor dispute by a
government agency which has the power to investigate and make an award binding
upon the parties.

8.1 Voluntary arbitration: a private judicial system

1. Voluntary arbitration is a part of a system of self-government created and confined to
the parties.
2. They select their own judge and fix their own procedure.
8.2 Voluntary arbitration, a master procedure
1. Any and all kinds of labor dispute may be submitted to voluntary arbitration.
2. Voluntary arbitration takes precedence over other dispute settlement devises.
a. a case filed in LA, SOLE or NLRC can be withdrawn and lodge it instead to VA
8.3 Powers and duties of VA or panel of VAs
Varying degrees of power of VA depends on CBA.
8.3a Power to arbitrate any dispute
8.3b No power to add to or subtract from the contract
VA is empowered only to interpret the contract not to add or modify it.
As a GR, authority of VA:
1 General authority to investigate and hear case upon notice to the parties and to
render an award based on the contract and record of the case;
2 Incidental authority to perform all acts, necessary to an adequate discharge of his
duties and responsibilities. Ex setting and conduct of hearing;
3 Special powers in aid of his general contractual authority like the authority to
determine arbitrability of any particular dispute and to modify any provision of
existing agreement upon which a proposed change is submitted for arbitration;
4 Authority to issue writ of execution.
A Power in General
Under the NCMB guidelines:
1 To require any person to attend hearing
2 To subpoena witness and receive documents
3 To take whatever action to resolve the issue subject to dispute (except ipaduel
ang parties hakhak)
4 To issue writ of execution
B Adjudicatory power
1 Personally hold hearings
2 Receive evidence
3 To take whatever action to resolve the issue subject to dispute
4 Must initiative in reconciling apparent contradictions
C Compulsory power
1 To require any person to attend hearing
2 To subpoena witness and receive documents
D Duty to conciliate and mediate
8.4 Functions of arbitrator
VA performs functions which are not normal to the courts, and the considerations which
help him to fashion his judgment maybe foreign to the competence of the court because
dispute ate the plant level require knowledge of the custom and practices of a particular
factory or industry as reflected in particular agreement.
The VAs power is contractual rather than judiciary in nature because such power is
derived from the agreement of the parties.

8.5 Binding effect

VAs decision is same legal effects as judgement in the court. Res judicata is applicable.
8.6 Period to render the arbitration award
GR: 20 calendar days from the date of submission of the case for resolution
Exc: Unless the parties agreed otherwise
Or 30 days in labor dispute causing or likely to cause strike or lock-out in an industry
indispensable to national interest.
NB:
1 VAs decision shall be final executory after 10 days from receipt thereof by the
parties.
2 Failure of VA to render judgement within prescribe days is a sufficient ground to
discipline the VA upon filing of complaint to NCMB of a party.
3 In case the sanction of erring VA is delisting, it shall be unlawful for VA to refuse or
fail to turn-over to NCMB the records of the case within 10 days.
8.7 Rules of procedure governing voluntary arbitration
GR: rules are subject of agreement among the parties to a labor dispute and their
chosen arbitrator.
EXC: absence of agreement, NCMB Revised Procedural Guidelines in the Conduct of
Voluntary Arbitration Proceedings, October 15, 2004 and Rules of Court shall apply by
analogy, directory or suppletory.
Notes:
1 Guidelines should be liberally construed.
2 While the intendment of law is to favor the EE, it no way implies ER is not entitled
to due process. ER right to be heard is a matter of great concern. (Unicraft
Industries International Corporation vs CA, GR 134903)
9. Who may be accredited as voluntary arbitrator
Minimum requirements:
1 Filipino citizen residing in Philippines
2 Holder of a Bachelors degree
3 At least 5 years experience in labor-management relations
4 Completion of a training course on voluntary arbitration conducted by the Board
5 A person of a good moral character
10. How voluntary arbitrator is chosen
VA is chosen by the parties by mutual agreement. Parties can choose preferably the
accredited ones. The choice is usually influenced by the trust of in the persons fairness
and knowledge of the dynamics, including in law, of labor-management relations.
Temporary or ad hoc arbitrator is selected when a dispute is already at hand. He is to
arbitrate specific or specific group of dispute and there is no commitment to select him
again.
Permanent arbitrator is one who is selected before the dispute arises, usually durong
the negotiation of CBA. He is to serve a period of time.
11. Distinguished from a court of law
Voluntary Arbitration
Regular courts

1 Informal
2 Not obliged to follow stare
decisis
3 Rules of evidence are not
followed.
4 No
comparable
appeal
recourse
5 Not
technical
and
relatively not expensive
procedure

1
2
3
4

Formal
Follows doctrine of stare decisis
Decision may be appealed
Rules of court applies technically

ARTICLE 273 [261]. JURISDICTION OF VOLUNTARY ARBITRATORS OR PANEL

OF VOLUNTARY ARBITRATORS
The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have original
and exclusive jurisdiction to hear and decide all unresolved grievances arising
from the interpretation or implementation of the Collective Bargaining
Agreement and those arising from the interpretation or enforcement of
company personnel policies referred to in the immediately preceding article.
Accordingly, violations of a Collective Bargaining Agreement, except those
which are gross in character, shall no longer be treated as unfair labor practice
and shall be resolved as grievances under the Collective Bargaining Agreement.
For purposes of this article, gross violations of Collective Bargaining Agreement
shall mean flagrant and/or malicious refusal to comply with the economic
provisions of such agreement.
The Commission, its Regional Offices and the Regional Directors of the
Department of Labor and Employment shall not entertain disputes, grievances
or matters under the exclusive and original jurisdiction of the Voluntary
Arbitrator or panel of Voluntary Arbitrators and shall immediately dispose and
refer the same to the Grievance Machinery or Voluntary Arbitration provided in
the Collective Bargaining Agreement.
ARTICLE 274 [262]
The Voluntary Arbitrator or panel of Voluntary Arbitrators, upon agreement of
the parties, shall also hear and decide all other labor disputes including unfair
labor practices and bargaining deadlocks.
1 Arbitrable disputes
2 kinds of disputes:
a Contract-negotiation disputes
- Disputes as to the terms of a collective bargaining
- Example: when impasse or bargaining deadlock has risen
- AKA arbitration of interest
b Contract interpretation disputes
- Disputes arising under existing CBA
- Involves interpretation, application of the contract, or alleged violation of its
provisions
- AKA arbitration of grievance or rights
Note:
- Usual CBA arbitration clauses provides interpretation of contract
- Few only for arbitration of interest

When terms and agreement are in dispute, they usually submit in a special
contract called submission agreement

2 Jurisdiction of LA and VA
Contextual and wholistic analysis of LA and VA by Justice Purisima in San Jose vs.
NLRC:
1 Includes money claims in one form or another
2 LAs original and exclusive Article 224; VA Article 273

24) Miralles 527-541

ART. 274
continuation of Jurisdiction of L.A. and V.A. from page 526
3. The original and exclusive jurisdiction of Labor arbiters is qualified by an exception as
indicate3d in the introductory sentence of Article 224 (a). The phrase Except as otherwise
provided under this Code refers to the following exceptions:
A Art. 224 (c)
Cases arising from the interpretation or implementation of collective bargaining
agreement and those arising from the interpretation or enforcement of company
procedure/policies shall be disposed of by the Labor Arbiter by referring the same to
the grievance machinery and voluntary arbitrator as may be provided in said
agreement.
B Article 273
The Voluntary Arbitrator or panel of Voluntary Arbitrators, upon agreement of the
parties, shall also hear and decide all other labor disputes including unfair labor
practices and bargaining deadlocks.
4. A. The original and exclusive jurisdiction of Voluntary Arbitrator or Panel of Voluntary
Arbitrators is limited only to unresolved grievances arising from the interpretation
or implementation of the CBA and those arising from the interpretation or enforcement
of company personnel policies Accordingly, violations of a CBA, except those which
are gross in character, shall no longer be treated as unfair labor practice and shall be
resolved as grievances under the CBA
B Voluntary arbitrators or Panel of Voluntary Arbitrators, however, can exercise
jurisdiction over any and all disputes between an employer and a union and/or
individual worker as provided for in Art. 274.
It must be emphasized that the jurisdiction of the VA or Panel of Vas under Article
262 must be voluntarily conferred by both labor and management. The labor
disputes referred to in the same Article 274 can include any or all of those
disputes mentioned in Article 224 which ordinarily are under LAs original and
exclusive jurisdiction.
2.1 Jurisdiction Over Termination Disputes
The preference or bias of the law in favor of voluntary arbitration justifies the view that
employment termination disputes, arising from CBA or personnel policy implementation,
are cognizable by a voluntary arbitrator and not a labor arbiter. Such termination cases, if filed
with a labor arbiter, is to be dismissed for lack of jurisdiction and referred to the concerned NCMB
Regional Branch for appropriate action. But this referral by the labor arbiter presupposes that the
parties had agreed in unequivocal language that the termination dispute should be
submitted to grievance machinery and voluntary arbitration. Without such explicit agreement,
the labor arbiter may hear and decide the case.
It need not be mentioned that the parties to a CBA are the union and the company.
Hence, only disputes involving the union and the company shall be referred to the grievance
machinery or voluntary arbitrators. In the Sanyo case, the dispute is between the union and the

company, on the one hand, and some union and non-union members who were dismissed, on the
other hand. No grievance between the company and the union exists which could be brought to
a grievance machinery. Since there has already been an actual termination, the matter falls
within the jurisdiction of the LA.
It can thus be deduced that only disputes involving the union and the company shall be
referred to the grievance machinery or voluntary arbitrators.
2.1 a Policies, Rules, Procedures
Company personnel policies are guiding principles stated in broad, long-range terms that
express the philosophy or beliefs of an organizations top authority regarding personnel matters.
The usual source of grievances, however, are the rules and regulations governing disciplinary
actions.
Company policies must be issued by top management which is responsible for making
major policies that are by their nature company-wide in application.
Minor policies, better known as rules and procedures, are the extension of major policies
and are usually formulated by minor executives or department managers. Rules are specific
guides intended to govern conduct and action of operating supervisors and employees in the
performance of their designated activities.
2.2 Jurisdiction Over CBA Violations
CBA violations not constituting U.L.P are likewise cognizable by a voluntary arbitrator if not
resolved through the grievance machinery. If the violations, however, are gross in character,
these are to be treated as unfair labor practice which, following Art. 224 (a-1), are to be heard
and decided by a labor arbiter. Gross violations refer to flagrant and/or malicious refusal to
comply with the economic provisions of the CBA. Yet, even in gross violation cases, the
parties are allowed by Art. 274 to submit the ULP case to a voluntary arbitrator. In
fact, even bargaining deadlocks and all other disputes may, by agreement of the parties,
be submitted to a voluntary arbitrator.
Thus, in Silva vs Philtread, the court says that for a ULP case to be cognizable by the LA,
and the NRLC, to exercise its appellate jurisdiction, the allegations in the complaint should show
prima facie the concurrence of two things, namely: (1) gross violation of the CBA; and (2) the
violation pertains to the economic provisions of the CBA.
2.2a Gross Violation Per Se of the CBA Constitutes U.L.P
Reference to the economic provisions of the CBA is not a necessary element of U.L.P.
where the employer in effect totally disregarded the subsisting CBA. The pronouncement in
Silva, should not be construed to apply to violations of the CBA which can be considered as gross
violations per se, such as utter disregard of the very existence of the CBA itself such as
when an employer proceeds to negotiate with a splinter union despite the existence of its valid
CBA with the duly certified and exclusive bargaining agent, the former indubitably abandons its
recoginition of the latter and terminates the entire CBA. An employer should not be allowed to
rescind unilaterally its CBA with the duly certified bargaining agent.
2.2b Liability for Damages; Union Not Entitled to Moral Damages
A union, like a corporation, is an artificial person that exists only in contemplation of law. It
has no feelings, no emotions, no senses. Hence, it cannot experience physical suffering or
mental anguish that translate to moral damages.
2.3 Other Cases
VAs also have exclusive and original jurisdiction to hear and decide wage distortion
issues arising from the application of any wage orders in organized establishments, as
well as unresolved grievances arising from the interpretations and implementation of the
productivity incentive programs under R.A. No. 6971.
Upon agreement of the parties, any other labor dispute may be submitted to a
voluntary arbitrator or panel of voluntary arbitrators. Before or at any stage of the
compulsory arbitration process, the parties may opt to submit their dispute to voluntary
arbitrations.
The NLRC, its regional branches and the Regional Directors of the DOLE shall not entertain
disputes, grievances or matters under the exclusive and original jurisdiction of the
voluntary arbitrator or panel of voluntary arbitration provided in the CBA.
2.4 Dispute over Companys Drug Abuse Policy
A unions petition to enjoin implementation of the companys drug policy is a labor dispute
beyond RTCs jurisdiction. It is a personnel policy dispute within the jurisdiction of a VA.
3. HOW VOLUNTARY ARBITRATION IS INITIATED
Voluntary arbitration may be initiated either by:

1 Submission
-sometimes called a Stipulation or an Agreement to Arbitrate
-used where there is no previous agreement to arbitrate
-more appropriate in interest disputes since collective agreement generally do not provide
for the arbitration of such disputes that may arise in the future
-often entered into after the dispute has materialized and the issues can already be
defined
2 by a Demand or Notice invoking a collective agreement arbitration clause
-more applicable to rights dispute because collective agreements are required under RA
6715 to provide for a grievance procedure and a voluntary arbitration clause with respect
to disputes arising from the application or interpretation of the agreement
-if a dispute is covered by such an arbitration clause, arbitration may be initiated
unilaterally by one party serving upon the other a written demand or notice of intent to
arbitrate
3.1 The Submission Agreement; Extent of Arbitrators Authority
In general, the arbitrator is expected to decide those questions expressly stated and
limited in the submission agreement. However, since arbitration is the final resort for the
adjudication of disputes, the arbitrator will assume that he has the power to make a final
settlement.
It is important to note that even if the particular issue is non-contractual or is not
arbitrable under the contract, the parties may stipulate to arbitrate such issue in the
submission agreement.
It is thus essential to stress that the VA had plenary jurisdiction and authority to interpret
the agreement to arbitrate and to determine the scope of his own authority subject only,
in a proper case, to the certiorari jurisdiction of this Court.
3.2 Arbitrators Interpretation of CBA
It is said that an arbitral award does not draw its essence from the CBA, hence, there is an
unauthorized amendment or alteration thereof, if:
1 It is so unfounded in reason and fact;
2 It is so unconnected with the wording and purpose of the agreement;
3 It is without factual support in view of its language, its context, and any other indicia of
the parties intention;
4 It ingnores or abandons the plain language of the contract;
5 It is mistakenly based on a crucial assumption which concededly is a nonfact;
6 It is unlawful, arbitrary or capricious; and
7 It is contrary to public policy
Art. 275 (262-A) PROCEDURES
1. COMPLIANCE WITH DUTY TO ARBITRATE
If a CBA requires settlement of disputes exclusively by the arbitration, then arbitration is
needed before court suits for breach of the contract may be filed. Nonetheless, the parties to a
CBA may waive the arbitration covenants of the agreement, but their conduct must clearly show
that intention.
2. ETHICAL STANDARDS OF ARBITRATORS
An arbitrator is obliged to maintain a high level of professional ethics in his relationships
with the parties and the appointing agencies. His conduct should be above reproach. Since in
effect, he is a judge, his ethics must be on the same high level as the code that governs the
conduct of judicial tribunals.
3. VOLUNTARY ARBITRATION AWARD, GENERALLY FINAL; EXCEPTIONS
The decisions of voluntary arbitrators must be given the highest respect and as a general
rule, must be accorded a certain measure of finality. It is not correct, however, that this
respect precludes the exercise of judicial review over their decisions.
A voluntary arbitrator by the nature of his functions acts in a quasi-judicial capacity. There
is no reason why his decisions involving interpretation of law should be beyond the
Supreme Courts review.
A voluntary arbitral award may be modified and set aside only upon the grounds on which
a decision of the NLRC itself may be modified or set aside by the Supreme Court.

A VA, whether acting solely or in a panel, enjoys in law the status of a quasi-judicial
agency but independent of, and apart from, the NLRC since his decision are not appealable
to the latter.

3.2a From VA to CA: Mode of Appeal is Petition for Review under Rule 43, not Special
Civil Action of Certiorari under Rule 65
The mode of appeal from VA to the CA is therefore a petition for review under Rule 43. It is
not rule 65 because a petition for certiorari under that rule lies only where there is no appeal
and no plain, speedy and adequate remedy in the ordinary course of law.
Nonetheless, the Court cited situations when petition for certiorari despite availability of
appeal, may be entertained, such as:
1 When public welfare and advancement of public policy dictates;
2 When the broader interest of justice so requires;
3 When the writs issued are null and void;
4 When the questioned order amounts to an oppressive exercise of judicial authority.
3.3 Findings of Facts of a VA
There is no merit in the contention that only questions of law, and not findings of fact, of a
VA may be reviewed by the Court. While the Court has accorded great respect for, and finality to,
findings of fact of VA and administrative agencies which have acquired expertise in their
respective fields, like the Labor Department and the NLRC, their findings of fact and the
conclusions drawn therefrom have to be supported by substantial evidence.

25) Ochavillo 542-545

Principle of Union-Management Relations
A

Rationale of Relations
1 Workers organize into labor union not alone for economic motives but also for equally
compelling psychological and social ones, so that they can participate in making the
decisions that vitally affect them in their work and community life.
2 Union-management cooperation tends to make management more efficient and unions more
cost-conscious, thereby improving the competitive position of a business enterprise and
increasing the earnings of both workers and owners.
3 The nature of union-management relations and the administration of a contract are
influenced greatly by pattern of social relationship in any given community.
4 The future of industrial democracy depends upon the attainment of full production and
employment on a sustained basis during and after the war.
Attitude and Leadership
1 The leadership requirements and responsibilities of management increase under unionmanagement relations.
2 Management should frankly acknowledge the role of the union in bringing about
improvements in working conditions.
3 The policies and actions of unions are likely to reflect the policies and actions of
management.
4 The attitudes and actions of management largely determine the degree of cooperativeness
of union leadership.
5 The time lag in the growth of constructive union leadership, after management ceases its
opposition, varies with the extent to which labor assumes responsibility for the development
of its leaders.
Collective Bargaining and Contract Administration
1 The collective bargaining marks the end of individual and the beginning of group relations
between workers and management.
2 The initial collective-bargaining practices are influenced in varying degrees by the preunion
history of the particular industrial concern and by the fact that genuine union-management
relations are initiated by the union.
3 Collective bargaining is an instrument for workers and owners, through unions and
management, to solve their problems directly without recourse to the government.
4 Collective bargaining is the extension of the basic principles and practices of democracy into
industry.
5 A prime objective of collective bargaining is the redistribution of the proceeds of production.
6 Workers acquire a qualified property interest in their jobs under a collective-bargaining
contract.

The successful administration of a contract requires the maintenance of an effective system

of communications for both management and the union, in bringing complaints from the
bottom up and relaying decisions and policies from the top down.
8 Participation of workers, union representatives, and management at all levels is a
prerequisite to the successful administration of a collective-bargaining contract.
9 The peaceful administration of a contract requires the confidence of workers that they will
get justice through the collective-bargaining machinery in the settlement of their grievance.
10 The natural outgrowth of local-plant and individual company collective bargaining is
bargaining between district or industry-wide organizations of management and union.
Grievance Handling
1 Grievance should be settled speedily and as near their point of origin as possible.
2 Grievances should be settled on their merits with no logrolling permitted.
3 Salesmen and purchasing agents usually possess a more natural ability for handling
managements relations with unions than do operating officials.
Participation
1 Managements assumption of sole responsibility for productive efficiency actually prevents
the attainment of maximum output.
2 The participation of organized workers in management provides an outlet for their creative
desires, as it is essentially a creative and cooperative undertaking.
3 Union management cooperation to reduce cost, eliminate wastes, increase productive
efficiency, and improve quality represents a practical program that provides workers with
effective direct participation in the creative phases of management.
4 Union should participate with management in distributing the proceeds of each firms
production between its owners and workers.
5 The greater the participation of workers through their unions in setting piecework and
tonnage rates, in making time and motion studies, in determining work standards and job
evaluations, the greater are the earnings and output.
Employee Security and Sharing
1 Each group of workers strives for the kind of seniority rules which it thinks will provide the
greatest amount of job protection.
2 Seniority is an instrument designed to eliminate favoritism and discrimination.
3 The power to discharge should not be lodged in a single individual.
4 Workers should enjoy full freedom of opportunity for advancement and promotion.
5 There is no basic conflict between seniority and productive efficiency.
6 The proceeds of technological changes, labor saving machinery, and other factors
contributing to lower unit costs of production should be shared equitably between owners
and workers.
7 The adjustment of wage-rate inequalities should be exclusively on the basis of the merits of
each case.
Union Security
1 Membership in the union should be a condition of employment.
2 The union shop is a necessary prerequisite for constructive union-management relations.
3 The union shop may be an instrument for their constructive or negative union-management
relations, depending chiefly upon managements outlook and the caliber of union leadership.

These principles are not immutable rules of union-management relationships, because they are the
outgrowth of changing conditions and, as a consequence, are themselves constantly subject to change.

26) Velez 550-640

Right to peaceful concerted activities:

Strike or lock out may be caused either by collective bargaining deadlock or an unfair labor
practice.

Violations of collective bargaining agreement except flagrant and/or malicious refusal to comply
with its economic, shall not be considered unfair labor practice and not be strike able.

No strike or lickout may be declared on grounds involving inter-union and intra-union disputes or
without first having filed a notice of strike or lockout or without the necessary strike or lockout

vote having been obtained and reported to the borad. Neither will a strike be declared after
assumption of jurisdiction by 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 strike or lockout.

In the course of collective bargaining, a lockout is proper only when the following requisites are
met
a) notice of intention to declare a strike/lockout has been filed with the department of labor.
b) At least thirty days has elapsed since the filing of the notice before lockout is declared
c) An impasse has resulted in the negotiations;
d) The strike/lockout is not discriminatory
*** The notice or cooling off period is 15 days for unfair labor practices (U.L.P) strike/lockout and
30days for bargaining strike/lockout
***Cooling off period will not apply if it involves union busting.

In defending again an unfair labor practice charge a raising out of such a use of a lockout, an
employer should show that he was merely protecting his bargaining position and not acting out
of hostility to the process of collective bargaining or by way of discriminating against union
members.

Lockouts has been held valid in the following situations:

a) In anticipation of a threatened strike, where the motivated by economic consideration
b) In response to unprotected strike or walkout
c) In response to a whipsaw strike

Lockouts have been held unlawful where undertaken for the following purposes:

A) to discourage and dissipate membership in a labor organization

B) to aid a particular union by preventing further organizational work of its rival, or to coerce
the employees to join the favored union
C) to avoid bargaining
Lockout is unlawful where it is declared in order to defeat organizational and bargaining rights of
employees.

Where there is no dispute or the dispute has nothing to do with he terms and conditions of
employment in the establishment, the stoppage of work by its employees has no basis in labor
law and the employees who engage in the work stoppage actually commit an illegal strike and
take the risk and consequences of such an illegal act.

Please see page 560. Case: national union of workers in hotel, etc. vs. NLRC and peninsula hotel,
G.R. no. 125561, march 6, 1998

Protection of strike:
The right to strike is given the following protection:

1) It is generally not subject to labor injunction or restraining order

2) Employees may not be discriminated against merely because they have exercised the
right to strike
3) The use of strike-breakers is prohibited
4) Mere participation in a strike does not sever the employment relationship.
Employees who peacefully struck for lawful object were not liable to their employer even though
the strike shut him down, bankrupted him, or put him out of business, and even though it also
caused enormous and irreparable damage to hundreds of thousands of innocent persons not
involved in the strike.

Any person who obstructs the free and lawful ingress to and egress from the employers
premises or who obstructs public thoroughfares may be arrested and accordingly charged in
court.

The employees status during a strike remains, but the effects of employment are suspended,
hence a striking employee, as a rule, is not entitled to his wage during the strike.

The authoritative Ludwig Teller says that an illegal strike is one which:
1)
2)
3)
4)
5)
6)

Is contrary to a specific prohibition of law

Violates a specific requirement of law
Is declared for an unlawful purpose
Employ unlawful means in the pursuit of its objectives
Is declared in violation of an existing injunction
Is contrary to an existing agreement, such as a no-strike clause or conclusive arbitration
clause
*** see page 568(starting)
Second requisite: Procedural requirements
Filing of notice of strike, observance of cooling-off period, taking of strike vote, and observance of
seven-day strike vote report period. It bears stressing that these requirements are mandatory;
meaning non compliance therewith makes the strike illegal.

Notice of strike:
File with the department of labor and employment specifically the regional branch of the national
conciliation and mediation board.
Who file: only a legitimate labor organization can legally hold a strike.

If the reason for the intended strike is U.L.P by the employer, the notice should be filed by the
duly recognized or certified bargaining agent. If the bargaining unit involved has yet no
bargaining agent, then the notice may be filed by even an unrecognized labor union, provided
the union is duly registered.

If the reason for the intended strike is bargaining deadlock, only the bargaining union ha the
legal right to file a notice of strike.

Cooling off period:

A cooling-off period must be observed, i.e, a time gap is required to cool off tempers between the
filing of notice and the actual execution of strike (or lockout). The cooling-off period is thirty days
in case of bargaining deadlock and fifteen days in case of unfair labor practice. However, in the
face of union busting as defined in article 277, the cooling-off period need not be observed and
the union may take action immediately after the strike vote is conducted and the results thereof
submitted to the appropriate regional branch of the board.

Strike vote:
Secret balloting

In every case, the union or the employer shall furnish the regional branch of the board the notice
of meetings referred to at least twenty-four 24 hours before such meetings as well as the result
of the voting at least seven (7) days before the intended strike or lockout, subject to the coolingoff period. The decision to declare a strike requires the secret-ballot approval of majority of the
total union membership in the bargaining unit concerned. The needed vote is majority of the
total union membership, not just majority of the members present in the meeting of referenda.
And it is majority of the union membership, not of the bargaining unit. The members of the
minority union may or may not be called to strike vote meeting.

Strike vote report:

The result of the strike (or lockout voting) should be reported to the NCMB at least seven (7) days
before the intended strike or lockout, subject to the cooling-off period.

A strike held within seven-day waiting period is plainly illegal. A strike staged without the
submission of the result of the strike-vote is illegal.

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

The law does not specify, but NCMBs Primer on strike, picketing and lockout states that if the
strike vote is filed within the cooling-off period, the 7-day requirement shall be counted from the
day following the expiration of the cooling-off period. In effect, the seven days. Are added to the
15-day or 30-day cooling off period.

the submission of the report gives assurance that a strike vote has been taken and that, if the
report concerning it is false, the majority of the members can take appropriate remedy before it
is too late.

Declaration of strike or lockout:

If the dispute remains unsettled after the lapse of the cooling-off period and the seventy-day
reporting period, the labor union may strike or the employer may lock out its workers. The
regional branch of the NCMB shall continue mediating and conciliating. The conciliation-mediator,
however can only suggest solutions. He is not an arbitrator or an adjudicator who may impose
his decisions upon the parties

In case of Union Busting:

Union busting exists when:

1) The union officers are being dismissed
2) Those officers are the ones duly elected in accordance with the union constitution and bylaws
3) The existence of the union is threatened
If the union is being busted, there is no need to observe the cooling off period. But must the
union still file a notice of strike, and take a strike vote, and submit the strike vote report? It is
submitted that those requirements are still mandatory even in the face of union busting.

What is being excused in case of union busting is only the observance of the 15-day cooling
period.

Equally uncompromising is the NCMB primer on strike, Picketing, and lockout which partly
states: in case of ULP due to union busting, the time requirement for filing of the notice of strike
shall be dispensed with but the strike vote requirement being mandatory in character, shall in
every case be complied with.

Indeed, in case of alleged union busting, the three remaining requirements- notice, strike vote,
and 7-day repot period-cannot be dispensed with; in fact, there is greater need for their
observance.

Strike during arbitration: Illegal

***read: Filsyn employees chapter vs. Drilon page 581

Personal notes sa case:

-Employees were required to work on weekends and holiday (properly compensated)
-labor dispute
-union filed for notice of strike
-upon employers petition, the minister of labor certified the labor dispute to the NLRC for
compulsory arbitration
-Employees did not work on Maundy Thursday, Good Friday, and black Saturday= strike
-held: the certification of the dispute to the NLRC for compulsory arbitration had the effect of
enjoining the intended strike subject of the notice

Strike despite preventive mediation :

The effect of the declaration (the NCMB had declared the notice of stike as appropriate for
preventive mediation) was to drop the case from the docket of notice of strikes as provided in

rule 41 of the NCMB rules, as if there was no notice of strike. During the pendency of preventive
mediation proceedings no strike could be legally declared.
Filsyn employees chapter vs. drilon, et al., G.R no. 82225, april 5, 1989
(important case) ***page 581

Personal note (still from the book):

-when the NCMB converted IBMs notices into preventive mediation, this had the effect of
dismissing the notices of strike filed by IBM. In the case of PAL vs. Drilon, the court ruled that
after the pendency of the preventive mediation proceedings, no strike could be legally declared
***san Miguel corporation vs. NLRC and IBM page 585 pero makitan sa page 586

Violation of a valid order:

The strikers, through their representatives, had misled, not to say deceived, the industrial court
because despite their assurance that tey would not go on strike just the same. It was held that
the strike was equivalent to a violation or disobedience of an order of the court, hence illegal.

Grievance procedure bypassed:

-Stipulation in the CBA: in case of any alleged unfair labor practice on the part of either party,
there will be no strikes, lockouts, or any prejudicial action xxx. Through a grievance procedure
herein outlined. Rule: the unions argument in support of that contention is vague and
unconvincing. No specific statutory enactment was cited to show the illegality of that stipulation.
-It was stipulated therein that if a laborer had a complaint, the same would first be resolved by a
grievance committee. Then, if the decision was not satisfactory, the same would be referred to
the top official of the union and the company. And if still no settlement was reached, the matter
would be submitted to the CIR. Such stipulation was upheld.

- The main purpose of the parties in entering into a CBA is to adopt a procedure in the settlement
of their disputes so that strikes may be prevented. This procedure must be followed in its entirety
if it is to achieve its objectives.

- Even if the management has failed to do it duty in connection with the formation of the
grievance committee stipulated in the agreement, such failure does not give to labor the right to
declare a strike outright, for its duty under the agreement is to exhaust all available means
within its reach before resorting to force. If labor chooses not to deal with the management
either because of distrust or prejudice, the other way left to achieve a peaceful settlement on
grievance is to resort to the court of Industrial relations. Strikes held in violation of the terms
contained in a collective bargaining agreement are illegal, especially when they provide for
conclusive arbitration clauses. These agreements must be strictly adheres to and respected if
their end is to be achieved.

- A strike or walkout on the basis of grievance, which have not been submitted to the grievance
committee, as stipulated in the agreement of the parties sanctioned by the CIR, is premature and
illegal.

Case:

Since the CBA contained provisions on grievance and arbitration, obviously the union violated
such provisions when it filed a notice of strike without availing of the remedies therein. Such
infringement of the grievance and arbitration provisions constitutes further justification for the
issuance of an injunction against the strike. As held by the court in the case of IPP and PWU vs.
ISRC: strikes held in violation of the terms contained in collection bargaining agreement are
illegal when they provide for conclusive arbitration clauses. These agreement must be strictly
adhere to and respected if their ends have to be achieved.
***San Miguel corporation vs. NLRC and IBM page 585

Dismissal of employees During Conciliation, when legal and enforceable:

When the strike notice was files by the union, the change of events which culminated in the
termination of the 14 salespersons employment was already taking place; the series of defiant
refusals by said sales representatives to comply with GTEs requirement to submit individual
reports was already in progress. At that time, no less than 3 of the ultimate 6 direct orders of the
employer for the submission of the reports had already been disobeyed. The filing of the strike
notice, and the commencement of conciliation activities by the bureau of labor relations did not
operate to make GTEs orders illegal and unenforceable so as to excuse continued
noncompliance therewith. It does not follow that just because the employees or their union are
unable to realize or appreciate the desirability of their employers policies or rules, the latter
were laid down to oppress the former and subvert legitimate union activities. Indeed, the overt,
direct, deliberate, and continued defiance and disregard by the employees of the authority of
their employer left the latter with no alternative except to impose sanctions.
***GTE directories corp. vs. Sanchez, et al page 587

Third Factor in legality of strike: purpose; economic and ULP strike

The labor code recognizes only two strikeable grounds or causes that may validly support a
strike; 1) collective bargaining deadlock and 20 employers unfair labor practice. A strike not
based on these two causes is necessarily tainted with illegality.

Accordingly, the following are non-strikeable issues;

1) Inter-union or intra-union disputes
2) Violation of labor standard laws, unless art. 258, particularly clause (c ), (F), or (i) is also
violated
3) Any issue involving wage distortion
4) Case pending at the DOLE regional offices, BLR, NLRC, or its regional branched, NWPC and
its regional wage boards, office of the secretary, voluntary arbitrator, court of appeals, or
the supreme court.
5) Execution and enforcement of final orders, decisions, resolutions or awards in no. 4 above.
6) Any issue covered by a no- strike commitment in a duly executed CBA.
The Conversion Doctrine

Initiated over bargaining demands but during the course of the strike, the employer
commits unfair labor practices.
The board applied the usual rule that strikes who are permanently replaced during the
economic phase of the strike are not entitled to immediate reinstatement, while strikers
replace d after the date of conversion are.

Legality of Strike not dependent upon the ability of management to grant demands.

-The ability of the company to grant said demands is one thing, and the right of the laborers to
make said demands is another thing.

Lawful purpose; strike against employers unfair labor practice

-

Union busting, or interference with the formation of a union, constitutes an unfair labor
practice act, hence a valid ground for the declaration of strike. Any U.L.P act under Art.
258 is strikeable.
***Davao free workers front vs. CIR page 592
The rule in this jurisdiction is that subjection by the company of its employees to a series
of questioning regarding their membership in the union or their union activities in such a
way as to hamper the exercise of free choice on their part, constitutes unfair labor
practice. PHILSTEAMs aforestated interrogation squarely falls under this rule. ***Phil.
Steam navigational co. vs phil marine officers guild page 593

Lawful purpose: U.L.P strike in Good Faith:

There are two test in determining the existence of an unfair labor practice strike:

1) Objectively, when the strike is declared in protest of unfair labor practice which is found to
have been actually committed; and
2) Subjectively, when a strike 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 found subsequently as not committed.
It is not even required that there be in fact an unfair labor practice committed by the employer. It
suffices if such a belief in good faith is entertained by labor as the inducing factor for staging a
strike.

If the management performed acts, which, under the circumstances, the strikers believed were
unfair labor practices on the part of the management, although they were not, the court ruled
that the strike cannot be held illegal. However, the unions belief needs some rational basis.

Case: ***ferrer vs court of industrial relations page 594

Good-faith strike Doctrine applied even to a strike without prior Notice and despite
a No-strike clause

It suffices, if such belief in good faith is entertained by labor as the inducing factors for
staging a strike. The strike staged by the union in this case cannot be considered a
violation of the no-strike clause of the collective bargaining agreement because it was
due to unfair labor practices of the employer. Moreover, a no-strike clause prohibition in a
collective bargaining agreement is applicable only to economic strikes. ***Philippine metal
foundries, Inc. vs. court of industrial relations page 597

Even Good-faith strike requires rational basis

-

The notice of strike filed by the union before the NCMB on July 12, 1991 contained general
allegations that RBS management committed unfair labor practices by its gross violation

of the economic provisions in their collective bargaining agreement and by alleged acts of
coercion, union interference and discrimination which amounted to union busting. It is the
union, therefore, who had the burden of proof to present substantial evidence to support
these allegations.
It is not enough that the union believed that the employer committed acts of unfair labor
practice when the circumstance clearly negate even prima facie showing to warrant such a
belief.
Even assuming arguendo that in the issuance of said guidelines RBS may have violated
some provisions in the collective bargaining agreement, there was no palpable showing
that the same was a flagrant and/or malicious refusal to comply with its economic
provisions. Hence, the law mandates that said violation shall not be considered unfair
labor practice and shall not be strikeable. ***tiu and hayuhay vs. NLRC and republic
broadcasting system page 598

Do the procedural requirement apply even to a ULP strike in good faith?

the reliance is misplaced. Peoples industrial did not rule that the procedural steps can be
dispensed with even if the union believed in good faith that the company was committing
an unfair labor practice. While it is true that Philippine metal held that a strike cannot be
declared as illegal for lack of notice , however , it is important to note that said case was
decided in 1979. At this juncture, it must be stressed that with the enactment of R.A no.
6715 which took effect on march 21 1989, the rule given to the department of labor are
mandatory in nature.
Thus, even if the union acted in good faith in the belief that the company was committing
an unfair labor practice, if no notice of strike and a strike vote were conducted, the said
strike is illegal. ***national federation of labor vs NLRC page 600

Lawful purpose: Strike to compel recognition of and bargaining WITH THE MAJORITY
UNION
-

***Caltex filipino managers and supervisors association vs. CIR page 601

Unlawful purpose: strike for union recognition without HAVING PROVEN MAJORITY
STATUS
-

But where the majority status of union is not in doubt, not in dispute, or is certainly
established and, despite this, the employer still refuses to bargain, then the situation is
one of refusal to bargain which is unfair labor practice act by the employer; in this
situation the union, if it strikes, will be staging a valid ULP strike, assuming that the other
requirements are complied with. ***lakas ng manggagawang makabayan vs. marcelo
enterprise page 602
***association of independent unions in the Philippines case page 602

May a Minority Union strike?

-

When a union, after winning in a election, is certified as the exclusive bargaining

representative, any other union who participated in the election thereby becomes a
minority union. A minority union cannot demand collective bargaining with the employer
because such right properly belongs to the union that commands the majority. Moreover;
the defeated union cannot lawfully undertake a strike against the employer; if one is being
done, it must come to a halt. Neither can it picket to compel bargaining.
After a union has been certified as the bargaining representative, a strike by a minority
union to compel an employer to bargain with it is unlawful. No labor dispute can exist
between a minority union and an employer in such case.
If a union, after defeat in a certificate election, stages a strike to compel recognition as the
bargaining agent, such strike is clearly unlawful.
But this is not to say the minority union is helpless or an easy prey. Although it cannot
strike, it can engage in peaceful concerted activity short of strike and it can file a ULP
complaint.

Strike held to compel recognition while case is unresolved

***Luzon marine department union case page 604

Unlawful purpose: trivial, unjust or unreasonable

Illegal Strike: shaven-head strikers (kalbo) in a tourist-class hotel

-

Acts calculated to force disruption of operations, thereby violating the no-strike clause in
the CBA, constitute illegal strike.

The unions violation of the Hotels grooming standards was clearly a deliberate and
concerted action to undermine the authority of and to embarrass the hotel and was,
therefore, not a protected action.
Obviously, the hotel does not need to advertise its labor problems with its clients.
Thus, we hold that the unions concerted violation of the Hotels grooming standards which
resulted in the temporary cessation and disruption of the hotels operation is an
unprotected act and should be considered as an illegal strike. ***National union of workers
in the hotel restaurant and allied industries page606

Unlawful purpose: strike on non-strikeable issue

Nonstrikeable: Physical rearrangement of office
-

There is no question that the strike itself was prompted by no actual existing unfair labor
practice committed by the petitioner. In effecting a change in the seating arrangement in
the office of the underwriting department, the employer merely exercise a reasonable
prerogative employees could not validly question, much less assail as an act of unfair
labor practice. The court is at loss how rearranging furniture can justify a four-month-long
strike. As to the respondents change of harassment , the commission found none, abd as
a general rule, the supreme court is bound by its findings. ***reliance surety and
insurance case page 608

Nonstrikeable: companys sales evaluation policy

-***GTE directories corporation case page 609* important
Nonstrikeable: salary distortion under the wage rationalization act
-***ilaw at buklod ng manggagawa case page 611

Nonstrikeable: inter-union or intra-union disputes

-

Bureau of labor relations, uner art 226, exercises original and exclusive authority to act on
all inter-union and intra-union disputes
The dispute does not involve the employer. Since the dispute is not with the employer, the
dispute cannot justify a work stoppage.
no strike or lockout may be declared on grounds involving inter-union or internal union
disputes or on issues brought to voluntary or compulsory arbitration.

Fourth Factor In legality of Strike: Means and Methods

-

A strike has to be pursuant within the bound of law. A strike does not suspend the binding
force of law; it does not put the strikers above the law or above their fellowmen.
- Thus, the law limits to their exercise. These limits are among the prohibited activities that
article 264 speaks of, particularly paragraph (e) . it stated that no person engaged in
picketing shallA) Commit any act of violence, coercion or intimidation, or

B) Obstruct the free ingress to or egress from the employers premises for lawful purpose
C) Obstruct public thoroughfares
Whoever commits these acts- union officers, or MEMBERS, EMPLOYEES or non-employees-is
answerable for the acts.

Threats, coercion or violence

-

The use of violence , intimidation, restraint or coercion in carrying out concerted activities,
which are injurious to the right of property, or to particular individuals, makes a strike
illegal. Unlawful acts of preventing nonstrikers from working and the commission of acts of
sabotage against the property of the employee as well as the employment of violence on
nonstrikers; infliction of physical injuries, assault, breaking of truck side and windows,
throwing of empty bottles at nonstrikers.
But it must be noted that the mere filing of charges against an employee for alleged illegal
acts during a strike does not by itself justify his dismissal. The charges must be proved at
an investigation duly called where the employee shall be given an opportunity to defend
himself. This is true even if the alleged ground constitutes a criminal offense, as we held in
Almira vs. B.F Goodrich phil inc. In that case, we ordered the reinstatement of employees
against whom criminal complaints had been filed but not yet proved

Violence on Both Sides

-Where violence was committed on both sides during a strike, such violence cannot be a ground
for declaring the strike as illegal.
Responsibility of Use of force: individual vs. collective?
-

To avoid rendering illusory the recognition of the right to strike, responsibilities in such a
case should be individual and not collective. A different conclusion would be called for, of
course, if the existence of force while the strike lasts was pervasive and widespread
consistently and deliberately resorted to as a matter of policy.

Officials inability to leave premises, not illegal detention

-Clearly, there was no kidnapping ; the detention or deprivation of liberty under the circumstance
while certainly not to be justified, was not done with criminal intent.
- Their objective , as clearly observed by the lower court , was not to inflict loss of freedom to the
complainants but to weaken management resistance so that it would give in to their demands.
While no doubt to be deplored, such conduct cannot be made a basis for a finding of probable
cause that the crime penalized by the codal provision in question was committed. ***People vs.
Barba page 617

Blockage or obstruction
Obstructions are beyond the valid exercise of the right to strike because they deprive the owner
of the company premises of its right to use them for unlawful purposes and the passers-by the
use of public passage. The illegal obstructions on public thoroughfares, such as streets or
sidewalks, are nuisances, which local government authorities can summarily remove

Fifth Factor in legality of strike: injunction

National interest cases; automatic injuction and return-of-work order

When there is a labor dispute causing or likely to cause a strike affecting national interest,
the secretary of labor and employment may either assume jurisdiction or certify the
dispute to the national labor relations commission for compulsory arbitration. The
secretary may so act at his own initiative or upon petition by any of the parties.
Such assumption or certification has the effect of automatically enjoining the intended or
impending strike or lockout as specified in the assumption or certification order. If one has
already taken place at the time of assumption or certification, all striking or locked out
employees shall immediately return to work under the same terms and conditions
prevailing before the strike or lockout. This is an example of automatic injunction. But this
is strictly limited to national interest cases, and even in these cases the parties retain
the option to submit the dispute to voluntary arbitration.
The issuance of injunction in national interest cases is an exception to art.254, which, in
general, forbids labor injunctions.

What are considered national interest cases?

-

The code vests the president of the Philippines and the secretary of labor and employment
almost unlimited discretion to determine what industries may be considered as
indispensable to the national interest.
It is in the nature of a police power measure.

Personal notes:
Examples of industries vested with national interest;
-

Educational institutions
Inimical to national economy
Banks

Assumption of jurisdiction: prior notice not required

-The discretion to assume jurisdiction may be exercised by the scretaryof labor and employment
without the necessity of prior notice or hearing given to any of the parties disputants.
-the labor minister may immediately take action where strike has effectively paralyzed a vital
industry, e.g., a bus company drivers strike, without waiting the filing of notice of strike

Effects of Defiance
-

Non-compliance with the certification order of the secretary of labor and employment shall
be considered as an illegal act committed in the course of the strike or lockout, and shall
authorize the commission to enforce the same under pain of immediate disciplinary action,
including dismissal or loss of employment status or payment by the lock-out employer of
backwages, damages and/or other affirmative relief, even criminal prosecution against the
liable parties

Case:***grand boulevard hotel case page 623

Assumption or certification order immediately effective even without return to work

order; strike becomes an illegal activity
-

Regardless therefore of their motives, or the validity of their claims, the striking workers
must cease and or/ desist from any and all acts that tend to, or undermine this authority of
the secretary of labor, once an assumption and/or certification order is issued. They
cannot, for instance, ignore return to work orders, citing unfair labor practice on the part of
the company, to justify their actions.
We also wish to point out that an assumption and/or certificate order of the secretary of
labor automatically results in a return to work of all striking workers, whether or not
corresponding order has been issued by the secretary of labor. Thus the striking workers

erred when they continued with their strike alleging absence of a return to work
order.***union of filipino employees case page 625
- Certification of the dispute to the NLRC makes the continuation of the strike illegal,
provided that the parties are duly notified of the certification order. Notice to the parties is
a prerequisite even if the order states that it is immediately executory
-case:***PNOC dockyard case page 626
Refusal to receive the RTWO (return to work order)
-

Refusal to receive the AJO ( assumption of jurisdiction order) amounts to defiance of the
order, which defiance makes the continuation of the strike an illegal act, thus subjecting
the strikers to loss of employment statues.
***University of san agustin case page 626 important

Defiance of RTWO, an illegal act

-

Not only union officers but also union members who defy return to work order are subject
to dismissal. They are deemed to have participated in an illegal act.
Case: ***st. scholastics college case important page 629

Individual Identification of strikers

when the employees slowed down in their work after the DOLE secretary has assumed
jurisdiction over the dispute, the slowdown amounted to a strike in defiance of the assumption
order. For that reason, it is illegal strike. The union officers who participated in the illegal strike
may be established. Each of these officers must be individually identified and the extent or
nature of his participation proven with certainty; otherwise, the termination is invalid.

Abandonment has varying elements

The rule that to constitute abandonment of position there must be occurrence of the intention to
abandon and some overt act from which it may be inferred that the employees has no more
interest in working is available as a defense against dismissals under art. 296. But it cannot be
under art.277 (g) or art.278 (a).

Restoration of condition upon issuance of return to work order

An order to return to work, which the labor court may properly issue in the exercise of it power of
arbitration and conciliation, is intended to restore the strikers to their positions in the company
under the last terms and conditions existing before the dispute arose.

The enforcement of a new company policy, requiring the employees to use upt heir earned
leaves instead of accumulating them, without judicial authorization, would indeed constitute a
violation of such order for the maintenance of status quo in relations between the workers and
the company.

Where a return to work order is issued, may the employer be compelled to accept
back to work the strikes with pending criminal charges

Thus, to exclude union officers, shop stewards and those with pending criminal charges in
the directive to the company to accept back the striking workers without first determining
whether they knowingly committed illegal acts would be tantamount to dismissal without
due process of law.
Actual, Not payroll, readmission
The third sentence of article 277(g) states that the striking or locked out employees shall
return to work and the employer shall readmit them, under the same terms and
conditions prevailing before the strike or lockout. The court interprets this to mean actual,
not payroll, readmission to the employees position.
In another case the court recognizes that one of the superseding circumstances that
justified payroll reinstatement is the fact that the subject employees positions were
declared confidential in nature by a panel of voluntary arbitrator.
Neither did the secretarty of labor abuse her discretion when she allowed payrolls
reinstatement of the strikes in a large hotel. She did not insist that the management
physically and immediately reinstate them because as the management pointed out, it
would not look nice to have bald staff attending to the hotels guest.

Voluntary return to work is not waiver of original demand

-

When the radio officers returned back to work after the strike, such return did not imply
the waiver of the original demands. The fact that the radio operator returned back to work
and ended their strike only meant that they desisted from the strike; such desistance is a
personal act of the strikers, and cannot be used against the union and interpreted as a
waiver by it of its original demand for which the strike was adopted as a weapon.

27) Zayas 641-650

14.7 Assumption Order Regulates Management Prerogatives
When labor dispute has occurred and a general injunction has been issued restraining the
commission of disruptive acts, management prerogatives must be exercised consistently with
the statutory objective.
Metrolab Industries, Inc. VS Roldan-Confessor
In this case, the SOLE assumed jurisdiction over the dispute and issued a restraining order.
While the dispute was still unresolved, the company laid off 94 and 73 EEs on ground of
redundancy. SC said that any act committed during the pendency of the dispute that tends to
give rise to further contentious issues or increase the tensions between the parties should be
considered an act of exacerbation. The unilateral action of mgt is blatant violation of the
injunction of this Office against committing acts which would result in exacerbate the dispute.
14.8 Secretarys Arbitral Award
The SOLE can render arbitral award. The arbitral award though not per se categorized as an
agreement voluntarily entered into by the parties, it can be considered as an approximation of a
CBA which would otherwise have been entered into by the parties. Hence, it has force and effect
of a valid contract between the parties.
14.9 Legal Discretion; Judicial Review of SOLEs Award or Order
Legal discretion is not a mental discretion to be exercised ex gratia (given freely), but it is to be
exercised in conformity with the spirit of the law and in a manner to subserve and not to impede
or defeat the ends of substantial justice.
Manila Electric vs Quisimbing
Every legal power of the SOLE under the labor code, or for that matter, any act of the
executive, that is attended by grave abuse of discretion is subject to review by the SC in an
appropriate proceeding. The extent of judicial review must include the substance of the
Secretarys award when grave abuse of discretion is alleged to exist in the award.

14.20 Appeal of Secretarys Order

Involves national interest appeal to the Office of the President
Non-national interest cases file a petition for certiorari under Rule 65
An appeal erroneously presented to the OP does not toll the running of the period to file petition
for certiorari.
14.21 Secretarys Abuse of Discretion, Examples
- imposing a stipulation which even the union did not ask for in a bargaining deadlock over which
the SOLE assumed jurisdiction
- when the SOLE moto proprio changed the maintenance-of-membership clause contained in his
earlier order to a more stringent union shop clause.
- when the SOLE excluded from readmission the employees-strikers whom the ER separated on
the ground of redundancy (see ART 263(g) for justification)
14.22 Withdrawal of Case to Submit to VA
Art 267 (h) allows the parties, at any stage, to withdraw the case from compulsory arbitration
and bring it to voluntary arbitration.
15. Sixth Factor in Legality of Strike: AGREEMENT OF THE PARTIES
GOP-CCP Workers Union vs CIR ruling upheld in Liberal Labor Union vs Phil. Can Company:
strikes held in violation of the terms contained in a CBA are illegal, especially when they
provide for conclusive arbitration clauses. These agreements must be strictly adhered to and
respected if their ends have to be achieved.
Master Iron Labor Union vs NLRC:
A no strike clause in a CBA is applicable only to economic strikes. Thus, if the strike is
founded on an unfair labor practice of the employer, a strike declared by the union cannot be
considered a violation of the no-strike clause.
An economic strike is defined as one which is to force wage or other concessions from the
employer which he is not required by law to grant.
15.2 No Strike Clause Binding; Primacy of Voluntary Arbitration Agreement
A no strike-no lockout stipulation generally deserves respect by the parties to the CBA and
by the labor authorities. Such stipulation applies even to a deadlock in renegotiating the
economic provisions of the CBA. Where the CBA stipulations that disputes between the parties
should be resolve through a grievance machinery, including voluntary arbitration, a notice of
strike filed by the union violates the agreement. The NCMB should consider such notice as not
duly filed and then direct the union to avail itself of the grievance machinery and voluntary
arbitration. A similar posture should be taken by the SOLE instead of assuming jurisdiction over
the dispute.
Primacy of Voluntary Arbitration over Assumption of Jurisdiction
SOLEs jurisdiction over labor disputes must include and extend to all questions and
controversies arising therefrom, including cases in which the labor arbiter has exclusive
jurisdiction. However, the present case (University of San Agustin EEs Union-FFW vs CA and
University of San Agustin) is an exception to that holding. For, the NCMBs interaction on the
universitys motion to refer the dispute to VA veritably forced the hand of the University to seek
and accordingly submit to the jurisdiction of the SOLE. Considering that the CBA contained no
strike, no lockout and grievance machinery and VA clauses, the NCMB under its own procedure
should have declared as not duly filed the Unions Notice of Strike and should have referred the
labor dispute to VA.

15.3 No-Strike Clause Not Binding Upon Newly Certified Bargaining Agent
Benguet Consolidated, Inc vs BCI EEs and Workers Union PAFLU:
Is the new bargaining agent bound by the strike clause of the previous bargaining agent?
The substitutionary doctrine only provides that the employees cannot revoke the validlyexecuted collective bargaining contract with their ER by simple expedient of changing their
bargaining agent. It cannot be invoke to support that a newly certified CBA automatically
assumes all the personal undertakings like the no strike stipulation. As the newly certified CBA,
it can always voluntarily assume all personal undertakings made by the displaced agent. But
there was no showing that the union formally adopted the existing contract in this case.
15.4 If Members Disregard a No-Strike Clause
A no-strike clause is binding not only upon the union, but also upon its individual
members. An ER may maintain an action against the union for damages resulting from violation
of the no-strike clause, even though the ER grievances relating to the same work stoppage are
arbitrable. However, the union is entitled a reasonable period of time after inception of the strike
in which to take required action, after which the unions liability commences; where the union
knows of the stike at about the time it commences, the union is properly allowed about 48 hours
in which to take action to end the strike, after which the period of liability runs.
15.6
A court will not imply a no-strike clause in the contract which does not provide for
arbitration of disputes. However, a no-strike pledge is inferable from a collective bargaining
agreement establishing arbitration as a means of settling disputes.
ART. 279 (265) Improved Offer Balloting
Improved offer balloting is a device to end a work stoppage. By this device, the strike or lockout
may end peaceably, silently without anyone losing face because no one will appear defeated. It
offers a graceful exit where there is an improved offer by ER, or reduced demand by the union
that will serve as a basis of secret balloting that will not reveal who retreated from the fight.

28) Ochavillo 651-661

652-661
No-strike pledge inferred from other provisions
A strike during the term of a collective bargaining agreement is not ipso facto a violation of the agreement.
Collective bargaining agreement stating a contractual purpose to prevent lockouts, boycotts, and strikes,
does not constitute waiver of the right to strike.

Article 279 (265) IMPROVED OFFER BALLOTING

In an effort to settle a strike, the Department of Labor and Employment shall conduct a
referendum by secret balloting on the improved offer of the employer on or before the 30 th day
of the strike. When at least a majority of the union members vote to accept the improved offer,
the striking workers shall immediately return to work and the employer shall thereupon
readmit them upon the signing of the agreement.
In case of lockout, the Department of Labor and Employment shall also conduct a
referendum by secret balloting on the reduced offer of the union on or before the 30 th day of
the lockout. When at least a majority of the board of directors or trustee or the partners

holding the controlling interest in the case of a partnership vote to accept the reduced offer,
the workers shall immediately return to work and the employer shall thereupon readmit them
upon the signing of the agreement.
Improved-offer balloting
Improved offer Balloting is a device to end the work stoppage. An improved offer by the
employer, or a reduced demand by the union, will serve as basis for a secret balloting that will not reveal
who retreated from the fight.

PICKETING AND OTHER CONCERTED ACTIONS

1

Picketing is the presence of striking workers or union brothers standing outside the place of business
in order to persuade peacefully other workers not to work in the establishment. Picketing almost always
accompanies a strike.
1

Picketing without strike it is established that the constitutional right of free speech is infringed by
a states judicial policy forbidding resort to peaceful picketing where there is no immediate
employer-employee relationship, as in the case of organizational or recognitional picketing. Hence,
a state cannot outlaw picketing merely because there is no strike in progress.

Moving picket
The public easement of way and passage permits the pickets to parade in front of or near the
picketed establishment. They have the right of passage but this right does not create the
additional rights of squatting or assembly. Any such squatting or assembly would exceed the scope
of the public easement and would constitute and enjoinable trespass.

Obstruction
Picketing conducted as to amount to a nuisance is unlawful. Picketing may be nuisance if it
constitutes an obstruction to the free use of property. Permissible activities on the part of picketers
do not include obstruction of access of customers.
1
Phimco vs.Phimco industries Labor Association
While the picket was moving, it was maintained so close to the company gates that it virtually
constituted an obstruction, especially when the strikers joined hands that for all intents and
purposes, blocked the free ingress to and egress from the company premises. Article 264 of the
Labor Code tells us that picketing carried on with violence, coercion or intimidation is unlawful.
Words or acts which are calculated and intended to cause an ordinary person to fear an injury to
his person, business or property are equivalent to threats. The manner in which the respondent
union officers and members conducted the picket in the present case had created such an
intimidating atmosphere that non-striking employees and even company vehicles did not dare
cross the picket line.

Picketing of Neutral parties or Innocent Bystanders

Philippine Association of Free Labor Unions vs. Cloribel
Facts: members of the union picketed in front of the building and along the common passageway
of the banking firm office. Two of the other tenants located in the building filed a petition, claiming
that the activities affected their enjoyment of the leased premises as well as their businesses.
Ruling: There is no labor dispute between petitioner union and the complainants, who are
innocent bystanders. A picketing labor union has no right to prevent employees of another
company from getting in and out of its rented premises, otherwise it will be held liable for damages
for its act against innocent bystanders.

Picketing of Home
The picketing of a private home in a residential district is generally held improper, even when the
pickets are domestic servants on the ground that a home is not an industrial or a business
enterprise, but rather an institution used and maintained as a place of abode.

Limitation
Picketing as a concerted activity is subject to the same limitation as strike, particularly as to lawful
purpose and lawful means.

Violence and Intimidation

Picketing carried on with intimidation, threats, coercion, or force is unlawful, however laudable the
strikers motive or purpose, and regardless of whether the intimidated persons are the employers
employee or potential employees or customers. A bona fide labor dispute is not justified in
assaulting a police officer.

Untruthful Picketing
Picketing may carry placards and banners truthfully advising the public concerning the dispute, but
the untruthful picketing is unlawful picketing and is enjoinable even though its purpose is valid.
Picketing is not peaceful where there is shouting or the use of loudspeakers in front of the picketed
place of business. Permissible activities on the part of picketers do not include misrepresentation.
This is in accord with the general rule that the means employed in aid of a strike must be free from
falsehood or defamation.

OTHER CONCERTED ACTIVITIES

1
Collective letter
Concerted activities include not only strikes and picketing, but also informal actions, such as
voicing their grievances against the bank president through a letter signed and published by them.
2

Publicity
Striking employee have a right to acquaint the public with the fact of the existence of a strike
setting forth their claims in a controversy over terms and conditions of employment, by sign,
handbill, or newspaper advertisement as a legitimate means of economic coercion.

Placards and Banners

Strikers having the right to apprise the public of the fact of the strike and solicit its support may
inscribe his grievance upon placards and banners, provided the inscription is not libelous or
otherwise unlawful. The right to banner is subject to limitations provided for by law and ordinance.
The display of banners informing the public that the employer is unfair is not unlawful if the
statements made are true in face, and there is no obstruction to traffic or of access to the
plaintiffs place of business.
Wearing of Armbands.
Bascon vs. CA
Wearing armbands and putting up placards to express ones views without violating the rights of
third parties, are legal per se and even constitutionally protected.

29) Rudela 662-676

SPEECHES, MUSIC, AND BROADCASTS
It is not unlawful for a labor organization in a radio broadcast, without employing threat or
intimidation, to express its honest opinion as to the fairness of an employer toward organized
labor and to advise the public and friends of labor not to patronize him. Nor is it unlawful to
cause to be driven through apparatus for broadcasting music. However, the use of
loudspeaker in front of a picketed place of business has been condemned as a form of
intimidation. The same is true of the holding of street meetings near the place of business of
the employer with whom a union has a dispute.
EMPLOYEES DEMONSTRATION TO PROTEST POLICE ABUSES
It was the duty of the company to protect the Union and its members from the
harassment of local police officers. It was to the interest of herein private respondent firm to rally
to the defense of and to take up the cudgels for its employees so that they can report for work
free from harassment, vexation or peril and as a consequence perform more efficiently their
respective task to enhance its productivity as well as profits. (Philippine Blooming Mills case)
RALLIES AS ILLEGAL STRIKE
(Toyota Motor Phils) The Union fails to realize one major difference: there was no labor
dispute in Philippine Blooming Mills Employees Organization. In the present case, there was an
on-going labor dispute arising from Toyotas refusal to recognize and negotiate with the Union,
which was the subject of the notice of strike filed by the Union on January 16, 2001. The court
affirmed the dismissal of more than 200 union officers and members.

BOYCOTT- as applied to labor unions, is generally understood to be a combination to harm one

person by coercing others to harm him- that is, a combination of many to cause a loss to one
person by causing others, against their will, to withdraw from him their beneficial business
intercourse through threats that unless others do so, the many will cause similar loss to him or
them. It is an attempt, by arousing a fear of loss, to coerce others, against their will to withhold
from one denominated unfriendly to labor their beneficial business intercourse. The essential
idea of boycotting is a confederation, generally secret, of many persons whose intent is to injure
another by preventing any and all persons from doing business with him, through fear of
incurring the displeasure, persecution, and vengeance of the conspirators.
LAWFULNESS OF THE BOYCOTT
1

LEGITIMATE- boycott by labor for the purpose of the maintenance or advancement of

wages, improvement of conditions of labor, shortening of periods of labor,
engagements of union employees, and reinstatement. It should be free of violence or
malevolence.
ILLEGAL- purpose is to require an employer to coerce his employees to pay their back
dues to the union or discharge them, or to compel the payment by an employee of a
fine, or to compel the employee to refrain from working, to compel to sign contract, or
to compel an employer to refrain from issuing new process or machinery.

The striking employees may appeal for sympathetic aid by a request to withhold
patronage or make like proper measures to induce third persons to withhold their patronage from
the employer in order to compel him to recognize the demands of the employees.
SLOWDOWN
It is a method by which ones employees, without seeking complete stoppage of work,
retard production and distribution in an effort to compel compliance by the employer with the
labor demands made upon him. It may or may not be accompanied by strike. It may be gesture,
preliminary to strike, which is calculated to serve as an admonition or warning to the offending
employer; or, alternatively, it may be a movement in prosecution of a strike which has been
declared without a walk-out. In either event, the movement can be executed only by the
employees themselves. In this respect does the slowdown differ from picketing, secondary
boycott, etc. in the latter cases, the project may be executed by employees and nonemployees
alike, in slowdown, it can be executed only by such of the offending employers personnel. In one
case, slowdown is strike on the installment plan, a willful reduction of the rate of work by
concerted action of workers to restrict the output of the employer, in relation to a concerted
action of workers to restrict the output of employer, in relation to a labor dispute; as an activity
by which workers, without a compete stoppage of work, retard production or their performance
of duties and functions to compel management to grant their demands.
CONSEQUENCES OF CONCERTED ACTIONS
STRIKERs RETENTION OF EMPLOYMENT- strikers remain as employees while they are on
strike. The effects of employment, generally, are merely suspended during that time- the workers
do not work and do not get paid. Even if strike is declared as illegal, the strike need not have
been attended with such a drastic consequence as termination of employment relationship. This
is because of the security of tenure provision of the Constitution.
Civil and criminal law are not suspended during a strike, hence anyone who commits an
illegal act, whether a union officer or a member, is civilly or criminally liable no matter whether
the strike is legal or not. Furthermore, the commission of illegal acts, including coercion, grave
threats, intimidation is reason enough to terminate the employment of such striker-employee.
The individual strikers committing the illegal acts must be identified. Simply referring to
strikers, AIU strikers, or complainants in this case is not enough to justify their dismissal.
But proof beyond reasonable doubt is not required; substantial evidence is enough.
SUSPENSION INSTEAD OF DISMISSAL

The penalty imposable does not always have to be dismissal; it may be scaled down to
suspension. Suspension was upheld by the court in a case where both parties, ER and UNION,
contributed to the volatile atmosphere emerging despite the SOLEs status quo order. Both sides
were at fault or in pari delicto.
UNION OFFICERS OR LEADERS?
The codal provision mentions OFFICERS, not LEADERS. There can be leaders who are
not officers.
SHOP STEWARDS ARE UNION OFFICERS
Thus, like the officers and directors of petitioner union who joined the strike, petitionersshop stewards also deserve the penalty of dismissal from their employment.
UNION MEMBERS
A union member, who participated in committing illegal acts during a strike, whether legal
or illegal, may also lose his employment status.
WHO DECLARES LOSS OF EMPLOYMENT STATUS?
Gold City Port Service, Inc vs NLRC- the law, in using the word may, grants the employer
the option of declaring a union officer who participated in an illegal strike as having lost his
employment.
DECLARATION OF ILLEGALITY OF STRIKE NOT A PREREQUISITE TO DISMISSAL OF
ILLEGAL STRIKERS
Filing a petition to declare a strike illegal is not a prerequisite for the employer to
terminate the employment of employees, whether union officers or members, who commit illegal
acts in the course of the strike. A prior petition to declare the strike illegal is not necessary.
EXCEPTION: PENDING CASE AT THE NLRC
The issues relating to the strike and lockout were
through corresponding complaints filed by petitioner itself
formal complaint for illegal strike, it behooved petitioner
investigation on the same matter, concluding upon the
dismissing outright the union officers involved.

already submitted before the NLRC

and private respondents. By filing a
to desist from undertaking its own
illegality of the union activity and

EMLOYERS OBSERVANCE OF DUE PROCESS

An employers declaration that a striker has lost his employment status is, technically,
not dismissal although it amounts to the same thing. Dismissing an employee is an act of the
employer. But an employer declaring that an employee has lost his employment is merely
confirming the effect of an (illegal) act initiated by the employee himself. It is as if the employee
brought about his own dismissal, and the employer is merely confirming it. But due process- a
valid cause and a valid procedure- must be observed. In the PHIMCO case, the employer directed
the strikers to explain within 24 hours why they should not be dismissed for committing illegal
acts during strike. Three days later, they were informed of their dismissal. This procedure says
the court, is not sufficient compliance with the due process requirement which applies to every
case of employment termination. EE are dismissed but ER has to pay damages.

30) Tidoso 677-691

A Good- Faith Strike

A strike may be justified by belief in good faith that the employer was committing unfair
labor practice (ULP) at the time the strikers went on strike.
ONE INSTANCE OF GOOD FAITH
Ferrer vs. CIR (1996)
...there is no denying the fact that the time chosen by the management therefor, when
considered in relation with the attending circumstances, reasonably justify the belief
of the Union that the real or main purpose of the management was to
discourage membership in the Union, to discredit the officers thereof, to weaken
the Union and to induce or compel the same to sign the draft of a collective
bargaining agreement. Said belief was confirmed by the fact that prosecutors of the
Court of Industrial Relations found sufficient grounds to file, and did file against the
management, a complaint for ULP.
TOTAL ABSENCE OF GOOD FAITH
Reliance Surety and Insurance vs. NLRC and Union (1991)
in effecting a change in the seating arrangement in the office of the underwriting
department, the petitioner (employer) merely exercised a reasonable prerogative
employees could not validly question, much less assail as an act of ULP.
In this case, Union invoked that they believed in good faith that there was ULP which was
affirmed by the NLRC. Supreme Court held there was no good faith but merely attended
with plain arrogance, pride and cynicism of certain workers because rearrangement of
seats cant justify a four-month long strike.
Effect: Declared illegal. Officers with knowledge forfeited employment.
B Forfeiture of Reinstatement
Strikers who fail to report for work when one had the opportunity to do so waived thereby
his right to reinstatement. Because of the apparent lack of interest of the strikers
concerned as shown by their failure to report to work without justifiable reason with the
petitioners (employers) therein, we are constrained to declare them to have forfeited their
right to reinstatement.
The mere fact that the striking employee found an employment elsewhere is not
necessarily a bar to their reinstatement.
Reinstatement may render the question of illegality of strike as moot. Where the
ER voluntarily agreed to reinstate the strikers, such agreement on the part of the employer
constitutes a waiver of the defence that the strike is illegal.

C Discrimination
To constitute as a ULP, the discrimination by the employer must be in regard to the hire
or tenure of employment or any term or condition of employment to encourage or
discourage membership in any labor organization.

D Backwages in Strike
General Rule:
No backwages for strikers on the principle that a fair days wage for a fair days labor.
Also base on the ground that strike is a voluntary and deliberate cessation of work
on the part of the workers to bargain on their demands, the ER should not bear strikers
loss of income.
Applies to strike when strike is used as an economic weapon (i.e. bargain for across-theboard wage increase, additional sick leave with pay, etc.)

For purposes of backwages in strike on the ground of ULP, there is a need to classify ULP
into two classifications, 1.) Discriminatorily dismissed for union activities, and 2.)
voluntarily went on strike even if it is in protest of an ULP.
For the second classification, the stoppage of their work was not the direct consequence
of the companies ULP. Furthermore, the stoppage of work was made voluntarily, hence,
there is no backwages due.

Exceptions to the GR: (backwages are paid)

-

For the first classification, the EEs on strike will get backwages from the day of their
discharge. (see above classifications)
INVOLUNTARY strikers are paid their backwages. Put in mind that what is generally
not subject to backwages are strikes that are voluntarily made by EEs. Strikes which
are done by EEs due to the stern attitude of the company leaving the EEs no other
alternative but to walk out is considered involuntary strike and subject to backwages.
Voluntary strikers that abandon the strike and apply for reinstatement
unconditionally, meaning in the same condition prior to strike, and are denied
reinstatement or are imposed by the employers new conditions prior to
reinstatement, can claim backwages from such denial of reinstatement or imposition of
new conditions for employment.

In illegal strikes, it follows the GR rule on backwages. EEs that are not considered to have lost
their employment status will be reinstated but without backwages.

E ERs Right to hire replacement during strikes.

Replacements should not be a bar for reinstatement of strikers in their original positions.
Replacement EEs are deemed to have accepted employment with the knowledge that they
are hired as replacements and their employment is subject to the consequences of the
labor dispute between ER and the strikers.

31) Varga 692-706

RESIGNATION OF STRIKERS DOES NOT PREVENT SIGNING OF CBA
The 20% req. (Art 234 LC) pertains to the REGISTRATION of a Labor Org. & NOT to its election as
a collective bargaining agent
>> Even when a legitimate labor org. could no longer meet the 20% req. after its registration,
it does NOT ipso facto, lose its status as such until after due hearing by the BLR.
CIVIL LIABILITY OF LABOR ORG.
If Lawful actions (Labor Org) = any injury will be considered as merely INCIDENTAL!
If Strike is Lawful = NO LIABILITY for injuries (INCIDENTAL)
If Unlawful Means/ Unlawful Objectives = Liable for resulting damages
*Note/s: PROOF OF ACTUAL AUTHORIZATION OR RATIFICATION OF SUCH ACTS AFTER ACTUAL
KNOWLEDGE = needed to hold a labor org. liable for unlawful acts
LIABILITY FOR ACTS OF OFFICERS
Labor Union are LIABLE for Unlawful Acts of Officers which they have AUTHORIZED
NOT LIABLE if UNAUTHORIZED
LIABILITY OF MEMBERS

MEMBERS NOT LIABLE for MERE MEMBERSHIP in the Union for the wrongful acts of his associates without
his KNOWLEDGE or APPROVAL
Members are NOT subj. to Civil Liability for the acts of the Union or its Officers, UNLESS it is shown that
that they personally authorized/ participated in the PARTICULAR acts.
*Note/s: However, Members are liable for damages from UNLAWFUL ACTS which they participated.
LIABILITY OF LABOR UNIONS
DAMAGES ARISING FROM BOYCOTT
Unlawful Boycott = DAMAGES! provided there is CAUSAL CONNECTION between the acts
complained of & the damage suffered.
DAMAGES FOR INTERFERING WITH RIGHT OF LABORERS TO WORK
If done INTENTIONALLY & WITHOUT LEGAL JUSTIFICATION =DAMAGES!
EXTORTING MONEY FROM EMPLOYERS
ILLEGAL CONSPIRACY TO EXTORT MONEY = money obtained may be RECOVERED back +
DAMAGES!
ARISING OUT OF PUBLICATIONS AND CIRCULATIONS OF FALSE STATEMENTS
Whether Lawful or Unlawful = DAMAGES!
DAMAGES
For a Labor Union &/or its officials & members to be held liable, there must be PROOF of ACTUAL
PARTICIPATION in, or AUTHORIZATION or RATIFICATION of, illegal acts.
Illegal Strike = employer is entitled to an award of damages ADEQUATELY proved.
In the Absence of COMPETENT PROOF on the Actual Damages suffered = still entitled to NOMINAL
DAMAGES
*Summary: Union Officers are LIABLE for DAMAGES caused to the business by the ILLEGAL STRIKE. The
Business Owner may recover those damages if he is able to prove them. In addition, the Officers will Lose
their Jobs.
IN PARI DELICTO DOCTRINE
If the employer committed ILLEGAL LOCKOUT & the employees staged an ILLEGAL STRIKE, they are BOTH
AT FAULT. >> The Court will RESTORE their Respective Positions before the Strike. The dismissed strikers
will be ORDERED REINSTATED WITHOUT BACKWAGES.
CHAPTER II- ASSISTANCE TO LABOR ORG.
ART 281 [267] ASSISTANCE BY THE DEPT. OF LABOR
The Dept. of Labor, at the initiative of the Secretary of Labor, shall extend special assistance to the
organization, for the purpose of collective bargaining, of the most underprivileged workers who, for
reasons of occupation, organizational structure or insufficient incomes are not normally covered by major
labor organizations or federations.
ART 282 [268] ASSISTANCE BY THE INSTITUTE OF LABOR & MANPOWER STUDIES
The Institute of Labor & Manpower Studies shall render technical & other forms of assistance to labor
organizations & employer organizations in the field of labor education, esp. pertaining to collective
bargaining, arbitration, labor standards and the Labor Code of the Phils. In general.
LABOR EDUCATION (LE)
Labor Unions FAILURE to provide LE to members = ground for CANCELLATION OF UNION REGISTRATION
& EXPULSION of the Union Officers at fault.
CHAPTER III- FOREIGN ACTIVITIES
Gen. Rule: ALL Aliens, natural or juridical as well as Foreign org are STRICTLY PROHIBITED from
engaging DIRECTLY or INDIRECTLY in ALL forms of TRADE UNION activities
Excp: Aliens working in the country with VALID PERMITS issued by DOLE = may exercise right to selforganization & join/ assist labor org. of their own choosing for purposes of Collective Bargaining.
REGULATION OF FOREIGN ASSISTANCE
No Foreign individuals, org. or entity may give any donations, grants/ other forms of assistance, in cash or
kind, DIRECTLY/INDIRECTLY to ANY Labor Org., group of workers, or any auxillary thereof, such as
cooperatives, credit unions & institutions engaged in research, education or communication, in relation to
trade union activities, WITHOUT PRIOR PERMISSION by the SECRETARY OF LABOR.

TRADE UNION ACTIVITIES shall mean:

1 Organization, formation & administration of labor organizations
2 Negotiation & administration of collective bargaining agreements
3 ALL forms of CONCERTED UNION ACTIONS
4 Organizing, managing, or assisting union conventions, meetings, rallies, referenda,
teach-ins, seminars, conferences & institutes
5 Any form of participation or involvement in representation elections, consent elections,
union elections
6 Other activities or actions analogous to the foregoing
*Note/s: 1. Prohibition shall equally apply to Foreign Donations, grants & other forms of assistance. 2.The
Sec. of Labor shall promulgate rules & regulations to regulate & control the giving & receiving of such
donations. 3. Applicable to Farm Tenants & Workers, but instead of Sec of Labor, the Sec. of Agrarian
Reform shall exercise the power & resp. of regulation.
ART 273. STUDY OF LABOR MANAGEMENT RELATIONS
The Sec. of Labor shall have the power & it shall be his duty to inquire into:
a The existing relations between employers & employees in the Phils.
b The growth of associations of employees & the effect of such associations upon employer-employee
relations
c The extent and results of the methods of collective bargaining in the determination of terms and
conditions of employment
d The methods which have been tried by employers and associations of employees for maintaining
mutually satisfactory relations
e Desirable industria practices which have been developed through collective bargaining and other
voluntary arrangements
f The possible ways of increasing the usefulness and efficiency of collective bargaining for settling
differences
g The possibilities for the adoption of practical and effective methods of labor management
cooperation
h Any other aspects of employer-employee relations concerning the promotion of harmony &
understanding between the parties
i
The relevance of labor laws & labor relations to national development.
The Sec. of labor shall also inquire into the causes of industrial unrest & take all the necessary steps
within his power as may be pprescribed by law to alleviate the same, and shall from time to time
recommend the enactment of such remedial legislation as in his judgement may be desirable for the
maintenance & promotion of industrial peace.
VISITORIAL POWER (See ART. 274)
The SEC. OF LABOR & EMPLOYMENT/ his duly recognized REPRESENTATIVE is empowered to
INQUIRE into the financial activities of legitimate labor org. & to examine their book of accounts &
other records.
Requirements: Upon filing of a COMPLAINT UNDER OATH & duly supported by the WRITTEN
CONSENT OF 20% OF THE TOTAL MEMBERSHIP OF THE LABOR ORGANIZATION CONCERNED.
Purpose:
To determine compliance/ non-compliance with the law
To prosecute any violations of the laws & of the unions constitution and by laws.
Limitation/s:
That such INQUIRY/ EXAMINATION shall NOT be CONDUCTED during the 60 day FREEDOM
PERIOD nor WITHIN 30 DAYS immediately preceding the date of election of union officials.
*Note/s: (also See D.O. No. 40-03)
The SEC. OF LABOR & EMPLOYMENT has jurisdiction over checking the financial records
The power can be delegated by the SOLE to the BLR. (the SOLE or his duly authorized rep. . .)
Request for exam. of books of accounts of INDEPENDENT LABOR UNIONS, CHARTERED LOCAL &
WORKERS ASSOCIATIONS = filed with Regional Office that issued its certificate of registration or
certificate of creation of chartered local.
Request for exam. of books of accounts of FEDERATIONS OR NATIONAL UNIONS & TRADE UNION
CENTERS = filed with the BUREAU.
The Complaint/ Petition for Audit/ examination of funds & books shall prescribe WITHIN 3yrs. FROM
THE DATE OF SUBMISSION OF ANNUAL FINANCIAL REPORT to the DEPT. or FROM THE DATE THE
SAME SHOULD HAVE BEEN SUBMITTED
The decision granting the conduct of audit shall include the appointment of the AUDIT EXAMINER &
a directive upon him to submit his report & recommendations WITHIN 10days from termination of
audit
Decision GRANTING the Conduct of Audit = INTERLOCUTORY; NOT APPEALABLE

Decision DENYING/ DISMISSING THE COMPLAINT/PETITION FOR AUDIT = may be APPEALABLE

WITHIN 10DAYS FROM RECEIPT THEREOF.

AUDIT EXAMINER
Shall CONDUCT an INVENTORY of ALL PHYSICAL ASSETS acquired by the Labor Org.
Make report of his findings to the parties involved & the same shall include his findings &
recommendations
*Note/s: The Copy of the Audit report shall be forwarded by the Audit Examiner to the MED-ARBITER
or the BUREAU DIRECTOR WITHIN 10DAYS FROM THE TERMINATION OF THE AUDIT together
with the entire records of the case & ALL documents relative to the conduct of Audit.
TRIPARTISM (See ART 275)
The representation of the 3 sectors- the PUBLIC or the GOVERNMENT, the EMPLOYERS, & the
WORKERS in POLICY-MAKING bodies of the govt.
*Note/s: Such kind of representation is not ordained, not even by the Constitution. What is provided for,
for the PRIVATE SECTOR is WORKERs PARTICIPATION in POLICY & DECISION-MAKING PROCESSES
directly affecting their rights, benefits, & welfare.
REASON/PURPOSE: Relations between capital & labor are NOT merely contractual. They are so impressed
with public interest that representations from the employer and the employee in decision and policymaking bodies of the govt are necessary. This is also in affirmation of the role of the State as the
guardian of the peoples rights & the constitutional provision on protection to labor.

32) Zayas

707-710

ART. 291 (277) Miscellaneous Provisions

Read the Codal Provision