LABOR RELATIONS

Martey

PART I

Section 1. Introduction

1.1 Statutory Source and Interpretation

Statutory provisions of the Labor Code are construed liberally in favor or

EE’s, unless otherwise intended by or patent from the language of the
statute itself. (Caltex Filipino Managers and Supervisors Assistant vs. CIR)

1.2 Definitions

ER and EE

Art. 212 :
 An “ER” – Any person acting in the interest of the ER, directly or
indirectly. The term shall not include any labor organization or any of
its officers except when acting as an ER.

 “EE” – Any person in the employ of an ER. The term shall not be limited
to the EE’s of a particular ER, unless this Code explicitly states. It shall
include any individual whose work has ceased as a result or in
connection with any current labor dispute or because of fair labor
practice if he has not obtained any other substantially equivalent or
regular employment.

Labor Organization and Legitimate Labor Organization

1. Art. 212 :

 “Labor Organization” – Any union for association of EE’s which exists

for the purpose of collective bargaining or of dealing with ER’s
concerning terms and conditions of employment.

 “Legitimate Labor Organization” – Any labor organization duly

registered with the DOLE that includes any branch or local.

2. A local chapter becomes a legitimate labor organization only

upon submission of:

A. Charter certificate within 30 days from its issuance by the labor

federation or national union.

B. Constitution and by-laws, statement on set of officers, and books

of accounts which are certified under oath by secretary or
treasurer, and attended to by its president. (Phoenix Iron vs.
Secretary of Labor and Employment)

Labor Dispute
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1. Art. 212 : Any controversy or matter concerning terms and conditions

of employment or the association or representation of persons in
negotiating, fixing, maintaining, changing or arranging terms and
conditions of employment, regardless of whether the disputants stand
in the proximate relation of ER and EE.

2. What is the test to determine whether a labor controversy comes

within the definition of labor dispute?

It depends on whether it involves or concerns terms, conditions of

employment or representation. (Azucena)

1.3 Labor Relations Policy

1. What is the policy of the state with respect to the trade
unionism, collective bargaining and labor relations?

It is the policy of the State to :

A. Promote and emphasize the primacy of free Collective
bargaining and negotiations, including voluntary arbitration,
mediation and conciliation, as modes of settling labor and
industrial disputes.

B. Promote free trade unionism (the system, methods, or practice of

trade or labor unions) as an instrument for the enhancement of
democracy and the promotion of social justice and development.

C. Promote the Enlightenment of workers concerning their rights

and obligations as union members and as EE’s.

D. To provide an adequate administrative Machinery for the

expeditious settlement of labor or industrial peace.

E. To ensure a stable but dynamic and just Industrial peace.

F. To ensure the participation of Workers in Decision and policy-

making processes affecting their rights, duties and welfare.

G. To encourage free trade Unionism and free collective bargaining.

(Art. 263)

 Collective bargaining – Negotiations towards a collective agreement

designed to stabilize the relation between labor and management and
to create a climate of sound and stable industrial peace. (Kiok Loy vs.
NLRC)

 The Secretary of Labor shall have the power and duty to inquire into
aspects of ER-EE relations concerning the promotion of harmony and
understanding between the parties. (Art. 273)

 A line must be drawn between policies which are purely business-

oriented and those which affect the rights of EE’s.

 Workers and ER’s shall, as far as practicable, be represented in

decision and policy-making bodies of the government. The Secretary of
Labor and Employment or his duly authorized representatives may call
a tripartite conference of representatives of government, workers and
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EE’s for the consideration and adoption of voluntary codes of principles

designed to promote industrial peace or to align labor movement
relations with established priorities in economic and social
development. (Art. 275) (ME vs. CUPID)

Section 2. Right to Self-Organization

2.1 Constitutional Basis of Right

1. Art. III, Sec. 8, Const. : The right of the people, including those
employed in the public or private sectors, to form unions, associations,
or societies for purposes not contrary to law shall not be abridged.

2. Art. XIII, Sec. 3, Const. : The State shall guarantee the rights of all
workers to self-organization, collective bargaining and negotiations,
and peaceful concerted activities including the right to strike in
accordance with law.

2.2 Coverage

I. Art. 243 : Coverage and EE’s right to self-organization –

1. All persons employed in commercial, industrial and agricultural
enterprises and in religious, charitable, medical, or educational
institutions --- whether operating for profit or not, shall have the right
to self-organization and to form, join or assist labor organizations of
their own choosing for purposes of collective bargaining.

2. Ambulant, intermittent and itinerant workers, self-employed people,

rural workers and those without definite ER’s may form labor
organizations for their mutual aid and protection.

II. Art. 244 : Rights of EE’s in the public service –

1. EE’s of government corporations established under the Corporation
Code shall have the right to organize and bargain collectively with their
respective ER’s.

2. All other EE’s in the civil service shall have the right to form
associations for the purposes not contrary to law.

III. Art. 245 :

1. Managerial EE’s are not eligible to join, assist, or form any labor
organization.

2. Supervisory EE’s shall not be eligible for membership in a labor

organization of the rank-and-file EE’s but may join, assist or form
separate labor organizations of their own.

2.3 Extent and Scope of Right

I. Art. 246 : Non-abridgement of right to self-organization – It shall be

unlawful for any person to :
1. Restrain
2. Coerce
3. Discriminate against or
4. Unduly interfere with EE’s and the workers in their exercise of the right
to self-organization
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II. The right to self-organization includes the right not to form or join a union
(Reyes vs. Trejano) However, by virtue of the operation or enforcement of a
closed shop clause in a CBA, an EE may be compelled on pain of dismissal, to
become a member of a labor union. (Alcantara)

III. May an ER impose as condition for employment that the applicant shall
not join a labor organization or shall withdraw from the one he belongs to?

No. Such a condition partakes of the nature of a “yellow dog contract” and
constitutes an unfair labor practice. It is interference with the individual’s
right to self-organization. (Alcantara)

2.4 Workers with Right to Self-Organization for Purposes of

Collective Bargaining

All EE’s

1. Art. 243 : All persons employed in Commercial, Industrial and

Agricultural enterprises and in Religious, Charitable, Medical, or
Educational institutions whether operating for profit or not, shall have
the right to self-organization and to form, join or assist labor
organizations of their own choosing for purposes of collective
bargaining.

2. The Macho hair Saloon refused to bargain with the union of the
barbershop composed of 8 barbers on the ground that the shop was a
service establishment and the number of the barbers was less than 10.
Is the contention tenable?

No. The law does not fix the minimum number of EE’s for the exercise of
the right to self-organization and the right extends to all types of
establishments. (Alcantara)

3. The faculty members of a non-profit school converted their club into a

labor union. Is this allowed?

Yes. Even EE’s in non-profit or religious organizations are entitled to

exercise this right. (Alcantara)

A. RELIGION

The right of the members of the Iglesia ni Kristo sect not to join a labor union
for being contrary to their religious beliefs does not bar the members of that
sect from forming their own union. (Kapatiran vs. Calleja)

Government Corporation EE’s

Art. 244 : Rights of EE’s in the public service –

 EE’s of government corporations under the Corporation Code shall
have the right to organize and bargain collectively with their respective
ER’s.

Supervisors
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1. Art. 245 : Supervisory EE’s shall not be eligible for membership in a labor
organization of the rank-and-file EE’s but may join, assist or form separate
labor organizations of their own.

[“Supervisory EE’s] – Those, who, in the interest of the ER, effectively

recommend such managerial actions if in the exercise of such authority is
not merely routinary or clerical in nature but requires the use of independent
judgment. (Art. 212) The criterion which determines whether a particular EE
is within the definition of a statute is the character of the work performed
rather than the title or nomenclature of position held. (NSRC vs. NLRC)

3. If the recommendation of the teacher area supervisor is subject to

evaluation, review and final approval of the principal, is the teacher a
supervisory EE?

No. This is merely ineffective or clerical recommendation. (Laguna Colleges

vs. CIR)

4. Supervisors were given the job of “either to assist the foreman if the
effective dispatch of manpower and equipment” or “execute and
coordinate work plans emanating from his supervisors.” Are these
“supervisors” supervisory personnel?

No. They only execute approved and established policies leaving little or
no discretion at all whether to implement the said policies or not. (Southern
Philippines Federation vs. Calleja)

A. RIGHT TO ORGANIZE and LIMITATION

1. A supervisory union cannot represent the professional/technical and

confidential EE’s whose positions are more of the rank and file than
supervisory. The professional/technical EE’s may join the existing rank
and file union, or form a union separate and distinct from the existing
union organized by the rank and file EE’s. The intent of the law is to
avoid a situation where supervisors would merge with the rank and file,
or where the supervisor’s labor organization would represent
conflicting interests. (Philippine Phosphate vs. Torres)

2. The union of supervisory personnel affiliated with a national federation.

The local union of rank and file was also affiliated with the said national
federation. Is this allowed?

No. A local supervisors’ union should not be allowed to affiliate with a

national federation of union of rank and file EE’s. Supervisors should be
given an occasion to bargain together with the rank and file against the
interests of the ER regarding terms and conditions of employment. (Atlas
Litographic vs. Laguesma)

Aliens

Art. 269 : Aliens working in the country with valid permits issued by the
DOLE, may exercise the right of self-organization and join or assist labor
organizations of their own choosing for purposes of collective bargaining,
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provided, that said aliens are nationals of a country which grants the same or
similar rights to Filipino workers.

RECIPROCITY

Security Guards

Security guards may join rank and file or supervisors union depending on
their rank. (MERALCO vs. Secretary of Labor and Employment)

2.5 Workers with no Right of Self-organization

Managerial and Confidential EE’s

1. Art. 245 : Managerial EE’s are not eligible to join, assist, or from any
labor organization.

[“Managerial EE’s” – Those whose primary duty consists of the

management of the establishment of which they are employed or of a
department or subdivision thereof, and to other officers and members of
the managerial staff. (Art. 82)]

2. The nature of the job determines whether the EE’s fall under the
definition of “managerial”. A managerial EE is one “who is vested with
powers of prerogatives to lay down and execute management policies
and/or hire, transfer, suspend, lay-off, recall discharge, assign or
discipline EE’s or to effectively recommend such managerial actions.
(SPFL vs. Calleja) The rationale for this is that the union is not assured
the loyalty of managerial EE’s in view of evident conflict of interests or
that the union can become company-dominated with the presence of
managerial EE’s in the membership. (Golden Farms vs. Calleja)

3. Confidential EE’s are also prohibited from forming unions. (Pier8 Arrastre
vs. Confesor) Having access to confidential information, they may
become a source of undue advantage. They may act as spies of either
party to a CBA. These include accounting personnel, radio and
telephone operators and confidential secretaries. (Golden Farms vs.
Calleja)

4. The major patron’s duties include taking complete charge and

command of the ship and performing the responsibilities of the ship
captain; the minor patron also commands the vessel, plying the limits
of island waterway, ports and estuaries. Are they eligible to join or form
a union?

No. The exercise of discretion and judgment in directing a ship’s course is

managerial in nature. (Association of Marine Officers vs. Laguesma)

Worker/Member of Cooperative

The right to forming or joining a labor organization for purposes of collective

bargaining is not available to an EE of a cooperative who at the same time is
a member and co-owner thereof. It is the fact of ownership of the
cooperative and not the involvement in the management thereof, which
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disqualifies a member from joining any labor organization within the

cooperative with respect however, to EE’s who are neither members or co-
owners, they are entitled to the rights of self-organization for purposes of
collective bargaining (Benguet Electric vs. Ferrer-Calleja). However, a
member/owner has the right to withdraw as owner of the cooperative for
purposes of joining the union (Central Negros Electric vs. Of DOLE).

Non-EE’s

Art. 243 : Ambulant, intermittent and itinerant workers, self-employed

people, rural workers and those without definite ER’s may form labor
organizations for their mutual aid and protection. However, they are not
entitled to the constitutional right to join or form a labor organization for
purposes of collective bargaining. (Singer vs. Drilon)

2.6 Part Protected

It is well-settled doctrine that the benefits of a CBA extend to the laborer’s

and EE’s in the collective bargaining unit, including those who do not belong
to the chosen bargaining labor organization. (MWU vs. Aboitiz)

2.7 Sanctions for Violation of Right

1. Art. 248 : It shall be unlawful for an ER to interfere with, restrain or

coerce EE’s in the exercise of their right to self-organization.

2. Art. 249 : It shall be unfair labor practice for a labor organization, its
officers, agents and representatives to restrain or coerce EE’s in the
exercise of their rights to self-organization.

3. Art. 288 : Penalty –

 Fine of not less than P1,000.00 nor more than P10,000.00
 Imprisonment of not less than 3 months nor more than 3 years,
or
 Both, at the discretion of the court.

In addition to such penalty, any alien found guilty shall be summarily

deported upon completion of service.

Any provision of the law to the contrary notwithstanding any criminal

offense punished under this Code shall be under the concurrent jurisdiction
of the Municipal or City Courts and the RTC.

4. Art. 289 : If the offense is committed by a corporation, trust, firm,

partnership, association or any other entity, the penalty shall be
imposed upon the guilty officer or officers of such corporation, trust,
firm, partnership, association or entity.

Section 3. Labor Organization

3.1 Policy

Sec. 211 : It is a policy of the State to :

1. Promote free trade unionism as an instrument for the enhancement of
democracy and the promotion of social justice and development.
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2. Foster the free and voluntary organization of a strong and united labor
movement.

3.2 Labor Organization - Unions

Definitions

A. LABOR ORGANIZATION

Art. 212 : Any union or association of EE’s which exist for the purpose of
collective bargaining or of dealing with ER’s concerning terms and conditions
of employment.

B. LOCAL UNION

Sec. 1, Rule I, Book V, IRR’s : Any labor organization operating at the

enterprise level.

C. NATIONAL UNION FEDERATION

Sec. 1, Rule I, IRR’s : Any labor organization with at least 10 locals or

chapters each of which must be duly recognized bargaining agent.

D. LEGITIMATE LABOR ORGANIZATION

Art. 212 : Any labor organization duly registered with the DOLE, and
includes any branch or local thereof.

D.1 Dole Registration Basis

A labor organization acquires legitimacy only upon registration with the

DOLE. (Progressive Development vs. Secretary of Labor and Employment) A SEC
registration cannot suffice. (Cebu Seamen’s Association vs. Ferrer-Calleja)

E. COMPANY UNION

Art. 212 : Any labor organization whose information, function or

administration has been assisted by any act defined as ULP by this Code.

3.3 Union Rationale – A negotiation towards a collective agreement

in order to stabilize the relation between ER-EE

When is a labor organization wholesome? A labor organization is

wholesome if it serves its legitimate purpose of promoting the interests of
labor without unnecessary labor disputes. That is why it is given personality
and recognition in concluding CBA’s. but if it is made use as a subterfuge, or
as a means to subvert valid commitments, it defeats its own purpose, for it
tends to undermine the harmonious relations between management and
labor. (United Seamen’s Union vs. Davao Shipowners Association)

3.4 Labor Union and Government Regulation

Union Registration and Procedure Requirements

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What are the requirements for registration of a labor organization?

Art. 234 :

Any applicant labor organization shall acquire legal personality and shall be
entitled to rights and privileges of legitimate labor organizations upon
issuance of a certificate of registration upon submission of the following
requirements:
A. Registration Fee
B. Names of its officers, addresses, principal address of the organization,
minutes of meetings and list of workers who participated in meetings.
C. Names of all its members comprising at least 20% of all its EE”s in the
bargaining unit.
D. Copies of annual financial reports if union has been in existence for more
than 1 year.
E. Copies of constitution and by-laws.

Sec. 3, Rule II, Book V, IRR’s: Sworn statement by applicant union that
there is no certified bargaining agent in bargaining unit concerned. When
there is an existing CBA duly submitted to the DOLE, a sworn statement that
the application for registration was filed during the last 60 days of the
agreement.

 The application and all accompanying documents shall be verified

under oath by the secretary or the treasurer as the case may be, and
attested to by the president. (Id.)

II. What are the additional requirements for federations or national

unions?

A. Proof of affiliation of at least 10 local chapters.

 Each of which must be a duly recognized collective bargaining agent in
the establishment or industry in which it operates.

B. Names and addresses of the companies where the locals or the chapters
operate and list of all the members in each company involved.

III. What is the period for action on application? 30 days from filing
(Art. 235)

A. REQUIREMENT AND RATIONALE

Registration is a condition sine qua non for the acquisition of legal

personality by a labor organization. (Protection Technology vs. Secretary of Labor and
Employment) However, it is not a limitation on the right of assembly or
association which may be exercised with or without said registration. (PAFLU
vs. Sec. of Labor) The statutory and regulatory provisions of defining the
requirements of legitimate labor organizations are an exercise of the
overriding police power of the State designed for the protection of workers
against potential abuses by unions that recruit them. (Protection Technology vs.
Sec. of Labor) or fly-by-night unions whose sole purpose is to control union for
dubious ends. (Phoenix Iron vs. Sec. of Labor and Employment)

Action or Denial of Application, and Remedy

1. Sec. 6, Rule II, Book V, IRR’s : Any applicant union may appeal to
the Bureau the denial of registration by the Regional Office, or to the
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secretary if the denial is by the Bureau, within 10 calendar days from

receipt of such decision on grounds of :
A. grave abuse of discretion ; and
B. gross incompetence

 The appeal shall be filed in the Regional Office/Bureau which shall

cause the transmittal of records to the Bureau/Secretary within 5
calendar days from receipt of the appeal.

 The Bureau/Secretary shall decide the appeal within 20 calendar days

from receipt of the records of the case.

2. Can the Regional Office/Bureau exercise discretion in the registration of

the applicant union?

No. As long as the applicant union complies with all the legal
requirements for registration, it becomes the Office’s/Bureau’s ministerial
duty to do register the union. (Vassar vs. Estrella)

Effects on Freedom of Association

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

Rights of Legitimate Labor Organization [REFOSAF]

I. What are the rights of legitimate labor organization?

A. Act as Representative of its members in collective bargaining

B. To be certified as the Exclusive representative of all the EE’s in an

appropriate collective bargaining unit for purposes of collective bargaining.

C. To be furnished by the ER, upon written request, with its annual audited
financial statements, including the balance sheet and the profit and loss
statement, within 30 calendar days from the date of receipt of request
 After the union has been duly recognized by the ER or certified as the
sole and exclusive bargaining representative of the EE’s in the
bargaining unit, or
 Within 60 calendar days before the expiration of the existing CBA, or
 During the collective bargaining negotiation.

D. To own property for the use and benefits of the labor organization and its
members.

E. To sue and be sued in its registered name.

F. To undertake all other Activities designed to benefit the organization and

its members.

G. Its income and properties which are directly and exclusively used for their
lawful purposes, shall be free from taxes, duties and other assessments. The
exemptions provided herein may be withdrawn only be a special law
expressly repealing this provision. (REFOSAF)
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II. Can the union effect a compromise of the money claims of

workers?

Money claims due to laborers cannot be the object of settlement or

compromise effected by a union or counsel without the specific individual
consent of each laborer concerned. (Kaisahan ng mga Manggagawa sa La Campana
vs. Sarmiento)

III. May a union waive a right of union members to reinstatement provided

for in an NLRC decision?

No, the waiver of reinstatement, must be regarded as a personal right which

must be exercised personally by workers themselves. (Jag vs. NLRC)

A. EFFECT OF NON-REGISTRATION

Union, must comply with all the requirements of registration as a legitimate

labor organization. (Protection Technology vs. Sec. of Labor & Employment). However,
if the union has filed application for registration and has submitted all the
legal requirements, the fact that it does not yet have the certificate of
registration will not annul the designation of the labor union as sole
bargaining agent by the virtue of a certification election since the defect is
not fatal. (UE Automotive EE’s vs. Noriel)

Cancellation of the Union Certificate Registration

I. What are the grounds for its cancellation of union registration by

the Bureau?
1. Misrepresentation, false statement or fraud by the union with respect
to the required documents submitted to the Bureau.

2. Failure to submit the documents within 30 days from adoption or

ratification of the constitution and by-laws or amendments thereto.

3. Misrepresentation, false statements or fraud in connection with the

election of officers, minutes of the elections and list of voters of failure
to submit these documents within 30 days from election [or from the
occurrence of any change in the list of officers of the labor organization
(Art. 241)].

4. Failure to submit annual financial report within 30 days after closing of

fiscal year and misrepresentation of fraud in the preparation of the
financial report.

5. Acting as labor contractor of “cabo” system.

6. Entering into CBA’s which provide terms and conditions of employment

below minimum standards.

7. Asking for or accepting attorney’s fees or negotiation fees from ER’s.

8. Other than for mandatory activities under this Code, Checking of

special assessment or other fees without duly signed individual written
authorization of members.
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9. Failure to submit list of individual members once a year or when

required (MACED MALL)

II. If a union declares an illegal strike, is this a good ground for cancellation
of union registration?

No. While Art .239 provides the phrase “acting as a labor contractor… or
otherwise engaging in any activity prohibited by law,” this phrase refers to
an activity partaking the nature of a labor contractor. Thus, an illegal strike is
not one of the grounds for cancellation of registration. (Itogon-Sayoc vs Sangilo-
Itogin Worker’s Union)

3.5 International Activities of Union Prohibition and Regulation

I. What activities by aliens are prohibited?

 All aliens, whether natural or juridical are strictly prohibited from
engaging directly or indirectly in all forms of trade, union activities
without prejudice to normal contacts between Philippine labor unions
and recognized international labor centers. The prohibition does not
apply to the formation of labor organizations by aliens working in the
country with valid working permits. (Art. 269)

 “Trade Union Activities” – shall mean :

1. organization formation and administration of labor organizations;
2. negotiation and administration of CBA’s;
3. all forms of concerted union action;
4. organizing, managing or assisting union action;
5. any form of participation or involvement in representation proceedings,
representation elections, union elections; and
6. other analogous activities. (Art. 270)]

II. What activities by aliens are regulated?

 No foreign individual, organization or entity may give any form of
assistance, in cash or in kind directly or indirectly, to any labor
organization, group of workers or any auxiliary thereof, such as
cooperatives, credit unions and institutions engaged in research,
education or communication, in relation to trade union activities,
without prior permission by the Sec. of Labor

 This prohibition also applies to foreign donations or other forms of

assistance, in cash or in kind, given directly or indirectly to any ER or
ER’s organization to support any activity or activities affecting trade
unions.

III. The strike declared by Union M has reached its 60 th day. Taking pity on
the hungry and sick strikers, B and G, French missionaries, distributed food
and drinks to the strikers. Has any one committed any illegal act?

Yes. B and G, distributing food and drinks to the strikers violated the
prohibition against aliens from engaging directly or indirectly in all forms of
trade union activities. The term “trade union activities” includes all forms of
concerted union actions and analogous activities. (Alcantara)

3.6 Union-Member Relations

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Nature of Relationship

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 and is
subject to the obligation of giving the members as its principals all
information relevant to union and labor matters entrusted to it. (Heirs of Cruz
vs. CIR)

Rights of Union Members

Summarize the basic rights of union members :

1. Political right – Member’s right to vote and be voted for, subject to
lawful provisions on qualifications and disqualifications.

2. Deliberative and decision-making right – Member’s right to

participate in deliberations on major policy questions and decide them
by secret ballot.

3. Right over money matter – Member’s right against excessive fees,

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 proposed special assessments and be deducted a special
assessment only with the member’s written authorization.

4. Right to information – Member’s right to be informed about the

organization’s constitution and by-laws and the CBA and about labor
laws.

Issues
A. ADMISION AND DISCIPLINE OF MEMBERS
1. Art. 249 : A labor organization shall have the right to prescribe its own
rules and with respect to the acquisition or retention of membership.

2. Art. 277 : Any EE, whether employed for a definite period or not, shall,
beginning on his 1st day of service, be considered an EE for purposes of
membership in any labor union.

A. 1. Admission
1. Labor unions are not entitled to arbitrarily exclude qualified applicants
for membership, and a closed-up provision would not justify the ER in
discharging, or a union in insisting upon the discharge of it, an EE
whom the union refuses to admit to membership, without any
reasonable ground therefor. Thus, while generally the State may not
compel the union to admit the individual as a member, this scenario is
not an exception to that general rule. (Salunga vs. CIR)

2. The union’s constitution and by-laws provides that no individual who

previously belonged to another union may be admitted as member
thereof. Is this provision valid?

No. While a union is in general free to select its own members, it cannot
impose arbitrary and discriminatory conditions for admission to
membership. It is very clear that the provision discriminates against an
individual for having exercised his right to self-organization. (Alcantara)
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3. The union constitution and by-laws provides that only EE’s with 2 years
service in the company are eligible for membership therein. Is the
provision valid?

No. The provision is an unreasonable restriction on the workers’ exercise

of his right to self-organization. It would have those who have less than 2
years of service without representation in bargaining with the ER.
(Alcantara)

A. 2 Due Process Rules

1. An officer or a member of a labor union is entitled to due process

before he can be expelled. The member of the 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. (Kapisanan ng mga Mangagawa
vs. Bugay)

2. The union constitution and by-laws provides that a member may be

expelled from the union upon a vote of 2/3 of all the members. Is the
rule valid?

No. The expulsion of a union member cannot be made to depend upon

the whims and caprices of cp-members. It must be founded on some just
and serious grounds. (Alcantara)

3. 5 regular EE’s were dismissed allegedly pursuant to a union security

clause. They had previously been expelled from the union for
attempting to oust the union leadership, but they were not given an
opportunity to explain their side. The company also did not conduct an
investigation into the matter. Is the dismissal of the EE’s lawful?

No. The union should have given them an opportunity to explain their side
before expelling them. And the company should have complied with
procedural due process before dismissing them. (Ferrer vs. NLRC)

B. ELECTION OFFICERS – QUALIFICATION, TENURE AND

COMPENSATION

Give the rules of the Labor Code governing union officers :

1. The members shall directly elect their officers, including those of the
national union or federation, to which they or their union is affiliated,
by secret ballot at intervals of 5 years.

 No qualification requirements for candidacy to any position shall be

imposed other than membership in good standing.

 No person who has been convicted of a crime involving moral turpitude

shall be eligible for election or appointment as a union officer. [“Moral
turpitude” – Act of baseness, vileness or depravity in the private of
social duties which a men owes to his fellowmen, or to society in
general. (Tak vs. Republic)

 The officers of any labor organization shall not be paid by

compensation other than the salaries and expenses due their positions
as specifically provided in the constitution and by-laws, or in a written
 15

resolution duly authorized by the majority of all the members at a

general membership meeting duly called fort he purpose.
o Any irregularity in the approval of the resolution shall be a
ground for impeachment or expulsion from the organization. (Art.
241)

B.1 Voters List

Submission of the EE’s names with the BLR as qualified members of the
union not a condition sine qua non to enable said members to vote in the
election of union officers. Question of eligibility to vote may be determined
through the use of applicable payroll period and EE’s status. (Tancinco vs.
Ferrer-Calleja)

B.2 Disqualification of Candidates

Disqualification of winning candidates will not automatically result in the

assumption of office of those who garnered the second highest number of
votes. (Manalad vs. Trajano)

B.3 Expulsion Remedy

Remedy against erring union officers is not referendum but union expulsion.
However, re-election of union officers and non-election of complaining union
members is convincing show of faith on union officer’s leadership. (KMP vs.
Trajano)

B.4 Election Invalid

1. Free and honest elections are indispensable to the enjoyment of EE’s
and workers of their right to self-organization. This right will be diluted
if the election is not fairly and honestly conducted. Thus, elections for
union officers attended by grave irregularities are invalid. (Rodriguez vs.
BLR)

2. Will failure to comply with the technical requirements or formalities in

relation to the election of union officers invalidate the election? No, as
long as it does not appear that such failure resulted in the deprivation
of any substantial right or prerogative of anyone or caused the
perpetration of fraud or other serious anomaly, or preclude the
expression and ascertainment of the popular will in the choice of
officers. (Timbungco vs. Castro)

B.5 Qualification of Union Officers

Atty. R won a big case for the union at the University of the West. He became
very popular with the union members that they elected him as union
president. Is this allowed?

No. Atty. R is not an EE of the University. He is disqualified from becoming an

officer of any union therein. (Alcantara)

C. MAJOR POLICY MATTER

1. Art. 241 : The members shall determine by secret ballot, after due
deliberation, any question of major policy affecting the entire
membership of the organization, unless the nature of the organization
or force majeure renders such secret ballot impractical.
 16

 In which case the board of directors of the organization may make the
decision in behalf of the general membership.

2. Z, a member of a union was surprised to know that the union had

disaffiliated with the national federation. Has Z any ground to
complain?

Yes. As union member, he has the right to participate, by secret ballot, to

determine any question of major policy affecting the entire membership.
Disaffiliation is a major policy issue. (Alcantara)

D. UNION FUNDS

Give the rules of the Labor Code governing union funds :

1. The members shall be entitled to full and detailed reports from their
officers and representatives of all financial transactions.

2. No officer, agent or member of a labor organization shall collect any

fees, dues or other contributions in its behalf or make any
disbursement of funds unless he is duly authorized by the constitution
and by-laws.

3. Every payment of fees, dues or other contributions by a member shall

be evidences by a receipt signed by the officer or member making the
collection and entered into the record of the organization.

4. The funds of the organization shall not be applied for any purpose or
object other than those expressly provided by its constitution and by-
laws or those expressly authorized by written resolution adopted by a
majority of the members at a general meeting duly called for the
purpose.

5. Every income or revenue of the organization shall be evidenced by a

record showing its source or by a receipt from the person to whom
payment is made.

6. Any action involving the funds of legitimate labor organization shall

prescribe after 3 years from date of submission of the annual financial
report to the DOLE or from date the same should have been submitted,
whichever comes earlier.

7. The treasurer shall render a true and correct account of all moneys
received and paid by him since he assumed office or since the last day
on which he rendered such account. The account shall be duly audited
and verified by affidavit and a copy shall be rendered by the DOLE. The
rendering of the account shall be made :
a. At least once a year and within 30 days after the close of its
fiscal year.
b. At such other times as may be required by a resolution of the
majority of the members of the organization.
c. Upon vacating his office.

8. The books of accounts and other financial records shall be open to

inspection by any officer or member thereof during office hours.
 17

9. No special assessment or other extraordinary fees may be levied upon

the members of a labor organization unless authorized by a written
resolution of a majority of all the membership meeting duly called for
the purpose.
a. The secretary shall record the minutes of the meeting which shall
be attested by the president.

10. Other than for mandatory activities under this Code, no special
assessments, attorneys fees, negotiation fees or any other
extraordinary fees may be checked off from the amount due to an EE
without an individual written authorization duly signed by the EE.

11. The Sec. of Labor or his duly authorized representative is hereby

empowered to inquire into the financial activities of the legitimate
labor organization upon filing of a complaint under oath and duly
supported by a written consent of at least 20% of the total
membership to determine compliance with the law.
a. Such inquiry shall not be conducted during the 60-day freedom
period within the 30 days immediately preceding the date of
election of the union officials.

D.1 Source-Payment-Attorneys Fees

1. Payment of attorney’s fees is an obligation of the union and not of the
EE’s. Money of EE’s are not to be used to pay attorneys fees of a
lawyer. (Pacific Bank vs. Clave)

2. Atty. S was hired by a union to assist its president in negotiating a CBA.

After the execution of the CBA, Atty. S sought to collect his attorney’s
fees out of the benefits due to the EE’s by virtue of the agreement. Is
this proper?

No. Atty. S’s claims for attorneys fees should be satisfied out of the funds
of the union. (ALU vs. NLRC)

D.2 Source-Payment-Special Assessment

1. Written resolution of a majority of all members of the union at a
general membership meeting, required for validity of levy of a special
assessment. (Palacol vs. Ferrer-Calleja)

2. The law does not require that disauthorization must be in individual

form. (Id.)
3. The Board of Directors of a union passed a resolution assisting every
union member of P2.00 to be used in the purchase of a birthday gift for
the courageous lawyer of the union. The union members refused to
pay assessment. Is the refusal justified?

Yes. The assessment was not authorized by a written resolution of a

majority of all the members at a general membership meeting for the
purpose.

4. At a general membership meeting, a majority of the members of the

union voted for a written resolution assessing each member P5.00. A
member who did not vote affirmatively and did not execute an
individual written authorization refused to pay the same. Is his refusal
justified?
 18

No. He is bound by the resolution. However, the absence of a written

check-off authorization means that the assessment cannot be deducted
by the ER from his wages or other amounts due him, but he is still obliged
to pay the same. (Alcantara)

E. MANDATORY ACTIVITY

Art. 214 : Other than for the mandatory activities under the Code : no
special assessment, attorneys fees, negotiation fees or any other
extraordinary fees may be checked off from any amount due to an EE
without an individual written authorization duly signed by the EE.

E.1 Definition

What is a mandatory activity? Judicial process of settling dispute laid

down by law. (Vengco vs. Trajano)

E.2 CBA Negotiation

1. Placement of re-negotiation for a CBA under compulsory process does
not make it a “mandatory activity” as to authorize check-off from EE’s
salary for attorneys fees without written, signed authorization.
(Galvadores vs. Trajano)

2. May a union collect “union service fee” for its appearance in labor
proceeding?

Yes. This is in accordance with the liberalized scheme and theory of

representation for labor. (RCPI vs. Sec. of Labor and Employment)

F. UNION INFORMATION

Art. 241 : It shall be the duty of any labor organization and its officers to
inform its members on the :
1. Provisions of its constitution and by-laws.
2. CBA
3. Prevailing labor relations system and
4. All their rights and obligations under existing labor laws.

For this purpose, registered labor organizations may assess reasonable

dues to finance labor relations seminars and other labor education activities.
(Responsibility of officers for dissemination of union information and for
respect of the law is greater than that of the members. (NLU vs. Continental
Cement)

Enforcement and Remedies – Procedure and Sanctions

1. Art. 241 : Any violation of the above rights and conditions of
membership shall be a ground for cancellation of union registration or
expulsion of officer from office, whichever is appropriate. At least 30%
of all the members or any member or members especially concerned
may report such violation to the Bureau.

Criminal and civil liabilities arising from violations of above rights

and conditions of membership shall continue to be under the
jurisdiction of ordinary courts.
 19

2. When is the 30% requirement not needed? When such violation

directly affects only 1 or 2 members, then only 1 or 2 members would
be enough to report such violation and seek redress. (Kapisanan ng mga
Manggagawa vs. Bugay)

A. JURISDICTION – EXHAUSTION INTERNAL REMEDIES

I. In case of intra-union disputes, redress must first be sought within the
organization itself in accordance with its constitution and by-laws. (Villar vs.
Inciong)

II. What are the exceptions to the exhaustion of internal remedies?

1. Futility of intra-union remedies.
2. Improper expulsion procedure.
3. Undue delay in appeal as to constitute substantial injustice.
4. When action is for damages.
5. Lack of jurisdiction of the investigating body.
6. When action of administrative agency is patently illegal, arbitrary and
oppressive.
7. When issue involves is a pure question of law.
8. Where administrative agency has already prejudged the case.
9. Where the administrative, agency was practically given an opportunity
to act on the case but did not. (Azucena)

3.7 Union Affiliation, Local and Parent Union Relations

I. Sec. 3, Rule II, Book V, IRR’s : An affiliate of a labor federation or

national union may be a local or an independently registered union.
RULES:
1. The labor federation or national union shall issue a charter certificate
which shall be submitted to the Bureau within 30 days from issuance.

2. An independently registered union shall be considered an affiliate after

submission to the Bureau of the contract or agreement of affiliation
within 20 days after its execution.

3. All existing labor federations or national unions are required to submit

a list of their affiliates, their addresses and including the names and
addresses of their respective officials.

4. The local or chapter of a labor federation or national union shall

maintain a constitution and by-laws, set of officers and books of
accounts.

5. No person who is not an EE or worker of the company or establishment

where an independently registered union, affiliate, local or chapter of a
national federation or national union operates shall henceforth be
elected or appointed as an officer of such union, affiliate, local or
chapter.

Affiliation; Purpose of; Nature of relations

A. NATURE OF RELATIONSHIP

The mother union is merely an agent of the local union. (NAFLU vs. Noriel)
 20

B. EFFECT – LEGAL PERSONALITY

Affiliation by a duly registered local union with a national union or federation

does not make the local union lose its legal personality. Furthermore,
notwithstanding affiliation, the local union remains the basic unit to serve the
common interest of all its members. (Adamson vs. CIR)

Local Union Disaffiliation

A. NATURE RIGHT DISAFFILIATION

The right of a local union to disaffiliate from its mother union is consistent
with the constitutional guarantee of freedom of association. (Volkschel Labor
Union vs. BLR)

B. RULE – LEGALITY ACT - DISAFFILIATION

The validity of the legal union disaffiliation is to be determined on the

basis of the provisions of the constitution and by-laws of the local union with
respect to the process of disaffiliation. (Liberty Cotton Mills Workers Union vs.
Liberty Cotton Mills)

C. MINORITY DISAFFILIATION

Generally, a labor union may disaffiliate from the mother union only
during the 60-day period immediately preceding the expiration of the CBA
(Tanduay vs. NLRC). However, a mere minority cannot file a petition for a union
disaffiliation, even within the prescribed 60-day period before the expiry of
an existing CBA. (Villar vs. Inciong)

D. EFFECT OF DISAFFILIATION – SUBSTITUTIONARY DOCTRINE

What is the substitutionary doctrine? EE’s cannot revoke the validly

executed CBA with their ER by the simple expedient of changing their
bargaining agent. (NAFLU vs. Noriel) Thus, the CBA continued to bind the
members of the new of disaffiliated and independent union up to the CBA’s
expiration date. (Associated Workers Union vs. NLRC) However, the substitutionary
doctrine is not applicable to the personal undertaking of the deposed union
i.e. no-strike stipulation. (Benguet Consolidated vs. PAFLU)
Section 4. The Appropriate Bargaining Unit

4.1 Law and Definition

Define the appropriate bargaining unit : Group of EE’s of a given

ER, comprised of all or less than all of the entire body of EE’s, consistent wit
the equity to the ER, indicated to be the best suited to serve the reciprocal
rights and duties of the parties under the collective bargaining provisions of
the law. (SMC vs. Laguesma) Within one unit there may be one or more unions,
but for bargaining with the ER only one union – the majority of incumbent
union – should represent the whole bargaining unit. (Azucena)

4.2 Determination of Appropriate Bargaining Unit

Factors – Unit Determination

 21

The fundamental factors in determining the appropriate

collective bargaining unit are : [W A P E]
1. Will of the EE’s.

2. Affinity and unity of the EE’s interest, such as substantial similarity of

work and duties, or similarity in compensation and working conditions.

3. Prior collective bargaining history.

4. Similarity of employment status, such as temporary, probationary and

seasonal EE”s.

Among these factors, the Supreme Court has consistently ruled that
the test of grouping is mutuality or commonality of interests. The EE’s sought
to be represented by the collective bargaining agent must have substantial
mutual interests in terms of employment and working conditions as evinced
by the type of work they perform. (SMC vs. Laguesma) In this respect, the basic
test of an asserted bargaining unit’s acceptability is whether or not it is
fundamentally the combination which will best assure to all the EE’s the
exercise of their collective bargaining rights. (Belyca vs. Ferrer-Calleja)

1. In making judgments about “community of interest” in these different

settings, the Bureau of Labor and Relation will look to such factors as :
1. Similarity in the scale and manner of determining earnings.
2. 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 EE’s.
5. Frequency of contact or interchange among the EE’s.
6. Geographic proximity.
7. Continuity or integration of production processes.
8. Common supervision and determination of labor-relations policy.
History of collective bargaining.
9. Extent of union organization. (Azucena)

2. A cigar manufacturing company has 7 departments, namely

administrative, raw leaf, cigar, cigarette, engineering and garage,
dispensary and sales. May the rank-and-file in the administrative, sales
and dispensary be grouped separately from the rank-and-file of the
other departments?

Yes. They are engaged in work different from those performed in the other
departments. Thus, they have a community of interest different from that
of the other departments. (Alhambra vs. PAFLU)

3. Golden Farm has 2 sets of EE’s : monthly-paid clerical workers and

daily-paid agricultural workers. May the monthly-paid EE’s constitute a
separate bargaining unit?

Yes. The monthly-paid EE’s have very little in common with the daily-paid
EE’s in terms of duties and obligations, working conditions, salary rates,
and skills. (Golden Farms vs. Sec. of Labor)

4. May the non-academic personnel of UP be joined with the academic

personnel?
 22

No. The 2 groups do not have community or mutuality of interests. (UP vs.
Ferrer-Calleja)

Unit Severance and the Globe Doctrine

What is the Globe Doctrine? The relevancy of the wishes of the EE’s
concerning their inclusion or exclusion from a proposed bargaining unit is
inherent in the basic right of self-organization. While the desire of EE’s with
respect to their inclusion in bargaining unit is not controlling it is a factor
which would be taken into consideration in reaching a decision.

Single or ER Unit is Favored

1. It has been the policy of the Bureau to encourage the information of an
ER unit unless circumstances otherwise require. The proliferation of
unions in an ER unit is discouraged as a matter of policy unless there
are compelling reasons which would deny a certain class of EE’s the
right to self-organization for purposes of collective bargaining.
(Philtranco vs. BLR)

2. It is proposed in a certification election that the professors of L. College

be grouped into 2 units : high school and college professor. The
proposal is based on the fact that the rules governing the 2 are
different, that the set up of the 2 departments are different and that
the manner of their payment is different. This proposal is opposed on
the following grounds : that the 2 departments are under the control of
only 1 board of trustees; that they are housed in the same building;
that there is but 1 cashier and registrar for the 2 departments; that
there are teachers who are teaching in both departments; that the
elementary department would be left without a bargaining
representative; and that there are only 130 teachers involved in the
proceedings. How many bargaining units should there be?

The facts show community of interests of the teachers in the college and
high school departments. Beside, the establishment of separate units
would leave the elementary teachers without a bargaining representative.
And considering that there are only 130 teachers, the division of the
bargaining unit dissipate their strength for collective bargaining purposes.
Finally, the ER would be contending with 2 different unions vying for each
other for better benefits to gain more members. (Laguna College vs. CIR)

Two Companies with Related Businesses

Two corporations cannot be treated as a single bargaining unit even if

their business are related. (Diatogon vs. Ople) However, when if in reality, the
companies constitute a single business entity i.e. 3 corporations acting as
security agencies were under the same management and had interlocking
incorporators and officers, the veil of corporate fiction may be lifted for the
purpose of allowing the EE’s to form a single union and be part of a single
bargaining unit. (PSVSIA vs. Torres)

Section 5. Union Representation : Establishing Union Majority Status

5.1 Pre-condition – ER-EE Relationship

 23

The duty to bargain collectively exists only between the ER and its EE’s.
When there is no duty to bargain collectively, it is not proper to hold
certification election in connection therewith. (PLUM vs. Compania vs. Maritima)

5.2 Methods of Establishing Majority Status

Elections – Certification Election ; Consent Election ; and Run-Off

Election

Define certification election, consent election, and run-off

1. Certification Election – Process of determining through secret ballot,
the sole and exclusive bargaining agent of the EE’s in an appropriate
bargaining unit, for purposes of collective bargaining. (Certification
proceedings directly involve two issues):
a. proper composition and constituency of the bargaining unit; and
b. validity of majority representation claims of the asserted
bargaining representative or of competitive bargaining
representative. (Azucena)

2. Consent Election – Election voluntarily agreed upon by the parties to

determine the issue of majority representation of all the workers in the
appropriate bargaining unit.

3. Run-Off – Election between the labor unions receiving the 2 highest

number of voted when a certification election which provides for 3 or
more choices results in no choice receiving a majority of the valid votes
cast.
 Exclude spoiled ballots

 where the total number of votes for all contending unions is at least
50% of the number of votes cast.

Distinguish consent election from certification election : A consent

election is an agreed one; its purpose being merely to determine the issue of
majority representation of all the workers in the appropriate collective
bargaining agent of all the EE’s in the appropriate bargaining unit for the
purpose of collective bargaining. (Warren Workers Union vs. BLR)

Policy

A. NO DIRECT CERTIFICATION

Direct certification is no longer allowed as a method of selecting the

bargaining agent. Where a union has a filed petition for certification election,
the mere fact that no opposition is made does not warrant a direct
certification. (CENECO vs. Sec. of Labor)

B. EFFECT OF ONE UNION ONLY

Certification election is the best and most appropriate means of

ascertaining the will of the EE’s as to their choice of an exclusive bargaining
representative. That there are no competing unions involved should not alter
that principle, the freedom of choice of the EE’s being the primordial
consideration besides the fact that the EE’s can still choose between “union”
and “no union”. (George and Peter Lines vs. ALU)
 24

C. ONE-UNION, ONE-COMPANY POLICY

Give a brief description on the “one-union, one-company policy” :

The proliferation of unions in an ER unit is discouraged as a matter of policy
unless compelling reasons exist which deny a certain and distinct class of
EE’s the right to self-organization for purposes of collective bargaining.
(Pagkakaisa ng mga Manggagawa sa triumph vs. Ferrer-Calleja)

D. RATIONALE

The holing of a certification election is based on a statutory policy that

cannot be circumvented. The workers must be allowed to freely express their
choice in a determination where everything is open to their sound judgment
and the possibility of fraud and misrepresentation is eliminated. (Progressive
development vs. Sec. of Labor)

Venue of Petition
1. Sec. 1, Rule V, Book V, IRR’s : A petition for certification election
may be filed with the Regional Office which has jurisdiction over the
principal office of the ER.

2. Sec. 6, Rule V, Book V, IRR’s : Upon receipt of the petition, the

regional director shall assign the case to a Med-Arbiter to appropriate
action. The Med-Arbiter shall have 20-workign days from submission of
the case for resolution within which to dismiss or grant the petition.

3. In case the place of work of the EE’s and the principal office of the ER
are located within the territorial jurisdiction of different regional offices,
may the workers file the application in their place of work?

Yes. The word “jurisdiction” as used in the provision refers to venue,

and venue touches more to the convenience of the parties rather
substance of the case. Since the worker is more economically
disadvantaged, the nearest government machinery to settle a labor
dispute must be placed at his immediate disposal. (Cruzvale vs. Laguesma)

5.3 Certification Election

Union as Initiating Party

A. ORGANIZED ESTABLISHMENT

1. Under what conditions may the Med-Arbiter automatically

order a certification election by secret ballot in an organized
establishment?
a. Petition questioning the majority status of the incumbent
bargaining agent is filed before the DOLE within the 60-day
freedom period.

b. Such petition is verified.

c. The petition is supported by the written consent of at least 25%

of all EE’s in the bargaining unit : (Art. 256)
 25

2. In case there are 3 or more unions contending in a certification

election, what will happen if no union receives a majority of the valid
votes cast?

Provided that the total number of votes of all contending unions is at least
50% of the number of votes cast [that is, the contending unions got more
votes than the vote for “no union”], a run-off election will be conducted
between the 2 unions with the highest number of votes. (Alcantara)

3. A certification election was held between 3 contending unions, A, B

and C. Of the 50 eligible voters, only 500 actually cast their votes. A
got 220 votes, B got 242 votes and C got 30 votes, while the rest of the
ballots were considered spoiled. How do you determine the majority
vote in the certification election ?

The majority vote in the certification election is 50% plus 1 of the valid
votes cast. Spoiled ballots are excluded. (Id.)

A.1 Definition

What is an organized establishment? It is a firm or company where

the EE have selected an exclusive bargaining representative or where there
is a CBA duly submitted to the DOLE. (Sec. 6, Rule V, Book V, IRR’s)

Freedom period
1. When may a petition for certification be filed in an organized
establishment? A petition for certification election may be filed
during the last 60 days (freedom period) of the CBA. Any petition filed
before or after the 60-day freedom period shall be dismissed outright.
(Sec. 3, Rule V, Book V, IRR’s)

2. Is the freedom period affected by any amendment, extension

or renewal of the CBA? No. The 60-day freedom period based on the
original CBA, shall not be affected by any amendment, extension or
renewal of the CBA for purposes of certification election. (Sec. 6, Rule V,
Book V, IRR’s)
3. May a new CBA executed by the incumbent exclusive
bargaining representative and the company, and ratified
during the 60-day freedom period be considered a bar to the
certification election? No. 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. (Sec. 4, Rule V, Book V, IRR’s)

A.3 Filing Party

1. Among the legal requirements before a petition for certification
election may be ordered by the Med-Arbiter is that the petitioning
union must be a legitimate labor organization in good standing. (Lopez
Sugar vs. Sec. of Labor)

2. May a federation file such a petition in behalf of its chapter or

local? The mother federation may file a petition for certification as
agent of the local or chapter provided both the mother federation and
the local or chapter is a legitimate labor organization. (Progressive
Development vs. Sec. of Labor)
 26

A.4 Signature verification

It is the Director of Labor Relations, rather than a union that is required

to determine whether there has been compliance with the requirement that
at least 25% of all the EE’s in the bargaining consented in writing to the
holding of a certification election. (Today’s Knitting vs. Noriel)

A.5 Substantial Support

1. What percentage of the EE’s should support the petition for
certification election in an organized establishment? The
required number is 25% of all the EE’s in the bargaining unit.

2. Is there a need simultaneous submission of the signatures

together with the petition for certification election? No. The
mere filing of a petition for certification election within the freedom
period is sufficient basis for the issuance of an order for holding of a
certification election subject to the submission of the consent
signatures within a reasonable period of time. (PWUP vs. Laguesma)

3. May a certification election be called by the Med-Arbiter

although the 25% statutory requirement has not been
complied with? Yes. Even conceding that the statutory requirement of
25% is not strictly complied with, the Med-Arbiter is still empowered to
order that the certification election be held precisely for the purpose of
ascertaining which of the contending labor organizations shall be the
exclusive bargaining agent. The requirement then is relevant only
when it becomes mandatory in conduct a certification election. (CMC vs.
Laguesma) Once the statutory requirement is met, it is mandatory for
the Med-Arbiter to conduct a certification election. (Belyca vs. Ferrer-
Calleja) In all other instances, however, the discretion ought to be
ordinarily exercised in favor of a petition for a certification election.
(CMC vs. Laguesma)

4. The NFSW filed a petition for certification election. It was contended

however by another union that more than 20% of the membership of
NFSW disaffiliated and thus the union cannot meet the 25% support
requirement. Should the petition be dismissed?

If there is a y reasonable doubt as to whom the EE’s have chosen as their

representative for the purpose of collective bargaining, the Bureau shall
order a certification election by secret ballot. To hold otherwise would
violate the liberal approach constantly followed in labor litigation.
(VICMICO vs. Noriel)

A.6 Motion for Intervention – Support

Under the law, the requisite written consent of at least 25% of the
workers in the bargaining unit applies to petition for certification election
only, and not to motions for intervention. (PAFLU vs. Ferrer-Calleja)

Unorganized Establishments

Art. 257 : In any establishment where there is no certified bargaining agent,

a certification election shall automatically be conducted by the Med-Arbiter
upon the filing of a petition by a legitimate labor organization.
 27

A. FILING PERIOD

When may a petition for certification be filed in an unorganized

establishment? A petition for certification election may be filed at any time.
(Sec. 3, Rule V, Book V, IRR’s)

ER as Initiating Party

Art. 258 : When requested to bargain collectively, an ER may petition

the Bureau for an election. If there is no existing CBA in the unit, the Bureau
shall, after hearing, order a certification election. The certification case shall
be decided within 20 working days, and the certification election shall be
conducted within the 20 working days from the decision.

A. ROLE ER

ER has no role in certification election except when asked to bargain

collectively under the “Bystander Rule.” (Philippine fruits and vegetable
Industries vs. Torres) It was a well-settled rule that ER has no standing to
question a certification election since it is the sole concern of the workers.
(PTTC vs. Laguesma)

Conducting Agency
1. Art. 226 : The Bureau of Labor Relations and the Labor Relations
Divisions in the regional offices of the DOLE shall have exclusive and
original authority to act, at their own initiative or upon request of either
or both parties, on all inter-union and intra-union conflicts, and all
disputes, grievances or problems arising from or affecting labor-
management relations in all workplaces whether agricultural or non-
agricultural, except those arising from the implementation or
interpretation of CBA’s which shall be subject of grievance procedure
and/or voluntary arbitration.

2. The practice of the Board referring certification cases to the TUCP, a

private entity, is not sanctioned by the Labor Code. (PLUM vs. Noriel)

Nature of Proceeding

The certification election is the most democratic and expeditious

method by which the laborers can freely determine the union that shall act
as their representative in their dealings with the establishment where they
are working. (PWUP vs. Laguesma) It is not litigation in a sense. It is a mere
investigation of a non-adversary fact-finding character in which the BLR of
the DOLE plays the part of a disinterested investigator seeking merely to
ascertain the desires of the EE’s as to the matter of their representative.
(Airline Pilots Association vs. CIR)

Certification Election – Process and Procedures

Sec. 1, Rule VI, Book V, IRR’s : The Regional Division, shall cause the
necessary posting of offices at least 5 working days before the actual date of
election in 2 most conspicuous places in the company premises.

A.1 Waiver
 28

The execution of an agreement to waive the mandatory 5 days posting

election notices binds the parties thereto by the doctrine of estoppel.
(JISSCOR vs. Torres)

B. VOTING LIST AND VOTER

B.1 All EE’s

1. Only EE’s who are directly employed by the ER and working along the
activities to which the ER is engaged and linked by ER-EE relationship
are qualified to participate in the certification election “irrespective of
the period of their employment.” (Eastland Manufacturing vs. Noriel)

2. Are EE’s prohibited by their religion to be members of a labor

organization be allowed to vote in a certification election? Yes.
The plainly discernible intendment of the law is to grant the right to
vote to all bona fide EE’s in the bargaining unit, whether they are
members of a labor organization or not. (Reyes vs. Trajano)

B.2 Dismissed EE’s

EE’s who have been improperly laid-off but who have a present,
unabandoned right to the expectation of reemployment, are eligible to vote
in certification elections. (Phil. Fruits and Vegetables Industries vs. Torres)

B.3 Probationary EE’s

Probationary EE’s in the appropriate bargaining unit are entitled to

vote. (Airtime Specialists vs. Director of Labor Relations)

C. VOTING DAY
1. Sec. 2, Rule VI, Book V, IRR’s : The election shall be set during the
regular business day of the company unless otherwise agreed upon by
the parties.
2. May a party to a certification election contend that the election was not
held on a regular business day due to the occurrence of a strike that
day?

No. While it may have affected the actual performance of work, by some
EE’s, it did not necessarily make said date an irregular business day of the
company. (Asian Design vs. Ferrer-Calleja)

D. PROTEST

1. When should a protest be raised?

a. On-the-spot during the conduct of the election.
b. Before the close of proceedings with the representation officer.

Protests not so raised are deemed waived. Such protest shall be

contained in the minutes if the proceedings. (Sec. 3, Rule VI, Book V,
IRR’s)

The protest should be formalized with the Med-Arbiter within 5 days

after the close of the election proceedings, otherwise the protest shall be
deemed dropped. (Sec. 4, Rule VI, Book V, IRR’s)
 29

E. APPEAL

Art. 259 : Any party to an election may appeal the order or results of the
election as determined by the Med-Arbiter directly to the Sec. of Labor and
Employment on the ground that the rules and regulations established by the
Sec. have been violated.
 Such appeal shall be decided within 15 calendar days.

F. ANNULMENT

Circumstances showing irregularities in the holding of the certification

election are sufficient to invalidate the same. (Confederation of Citizens
LaborUnion vs. Noriel)

5.4 Certification of Designated Majority Union

Majority Union

Art. 255 : The labor organization designed or selected by the majority of the
EE’s in the appropriate collective bargaining unit shall be the exclusive
representative of the EE’s in such unit for the purposes of collective
bargaining.

5.5 Bars to Certification Election

One year Bar Rule (Certification year)

A. GENERAL RULE
Sec. 3, Rule V, Book V, IRR’s : No certification election may be held within
1 year from the date of issuance of a final certification result.

The phrase “final certification result” means that there was an actual
conduct of election. In case where there was no certification election
conducted precisely because the first petition was dismissed, on the ground
of a defective petition, the certification year bar does not apply. (R. Transport
vs. Laguesma)

B. EXCEPTIONS

A petition for certification election may be entertained where unusual

circumstances exist. A circumstance would be unusual or out of the ordinary
if it affects the structure, functions or membership of the contracting union
i.e. the number of EE’s in the appropriate bargaining unit has more than
doubled since the last certification election. (Azucena)

Deadlock Bar Rule

What is the deadlock bar rule? A petition for certification election

can only be entertained if there is no pending bargaining deadlock submitted
to conciliation or arbitration of which has become the subject of a valid
notice of strike or lockout. (NASUCIP-TUCP vs. Trajano)

A. NO DEADLOCK
 30

Bargaining deadlock presupposes reasonable effort at good faith

bargaining which, despite noble intentions, does not conclude in agreement
between the parties. (Divine World vs. Sec. of Labor)

Contract Bar Rule

1. What is the contract bar rule? The existence of a CBA duly filed and
submitted to the DOLE, in compliance with the requirements and
standards of the said office bars a certification election in the collective
bargaining unit except within the 60 days prior to the expiration of the
life of such contract. (Foamtex Labor Union vs. Director of Labor Relations)

2. Give the statutory recognition of the contract bar rule : The

Bureau shall not entertain any petition for certification election which
may disturb the administration of duly registered existing CBA’s
affecting the parties. (Art. 232)

3. The exclusive bargaining union entered into a 5-year CBA with the
company. Because of intra-union conflict the ratified CBA was only
registered with the DOLE 3 months after it was ratified. A month later,
another union filed a petition for certification election. The petitioning
union contends that the contract was registered beyond the 30-day
period prescribed by Art. 231. Is the petition barred by the contract bar
rule?

Yes. Non-compliance with the procedural requirements of Art. 231 should

not adversely affect the substantive validity of the CBA. A CBA is more
than a contract. It is highly impressed with public interest for it is an
essential instrument to promote industrial peace. To set it aside o
technical grounds is not conducive to the public good. (TUCP vs. Laguesma)

4. Company A signed a 3-year CBA with Union X, the duly authorized

bargaining representative. The CBA was never formally ratified by the
EE’s, although they all accepted and enjoyed the benefits under the
CBA. 18 months after the CBA was signed, Union Y filed a petition for
certification election. Will the petition of Union Y prosper?

No. While there was no express ratification by the EE’s, the fact that they
received the benefits is an implied ratification of the CBA. The non-
submission of a copy of the CBA to the DOLE is a mere formal requirement
which should not prevent the application of the “contract bar” rule.
(Alcantara)

A. DEFECTIVE CBA

The contract bar rule does not apply when the CBA which is the basis
of the rule is defective. (ALU vs. Ferrer-Calleja)

B. INCOMPLETE CONTRACT

To be a bar to a certification election, the CBA must be adequate in

that it comprises substantial terms and conditions of employment. (Buklod ng
Saulog vs. Casalia)

C. HASTILY CONCLUDED CBA

 31

1. 8 months prior to the expiration of the CBA, the company and the
union renewed the same for another 3 years. Can the renewed CBA be
set up as a bar to the holding of the certification election?

If the CBA is prematurely renewed, such is not a bar to the holding of a

certification election. The ER and a friendly union can not by the mere
expedient of prematurely renewing their CBA, effectively deprive the
workers of their right to freely select their bargaining agent. (General
Textiles Allied Workers Association vs. Director of Labor Relations)

2. ALU had a CBA with PASAR. Several days before the expiration of the
CBA NAFLU filed a petition for certification election. During the
pendency of the representation case, the Med-Arbiter enjoined PASAR
from entering into a CBA with any union. However, ALU and PASAR
concluded a CBA. Is the new CBA a bar to certification election?

No. The CBA was hastily concluded, showing that the parties were in bad
faith when they concluded the CBA. (ALU vs. Ferrer-Calleja)

D. CBA THAT DOES NOT FOSTER STABILITY

More than half of the members of a union resigned from it to form

another union. It later filed a petition for certification election within the 60-
day freedom period. Meanwhile the old union and the company entered into
a new CBA. Is the contract bar rule applicable?

No. It is doubtful if any contract that may have been entered into
between ALU and the company will foster stability in the bargaining unit in
view of the substantial number of EE’s that have resigned from the old union
and joined the new union. (Firestone vs. Estrella)

E. EXCEPTION

Deviation from the contract bar rule is justified only where the need for
industrial stability is clearly shown to be the imperative. (PWUP vs. Laguesma)

F. VALIDITY OF CBA SIGNED DURING REPRESENTATIONS DISPUTE

When a CBA is entered into at the time when a petition for certification
election had already been filed by a union and was then pending resolution,
the said CBA cannot be deemed permanent, precluding the commencement
of negotiations by another union with management. (ATU vs. Trajano)

5.6 Suspension of Certification Election

Prejudicial Question Rule

1. United CMC Textile Workers filed a complaint for unfair labor practice
against CENTEX and PAFLU, alleging the CENTEX helped and
cooperated in the organization of PAFLU. During the pendency of the
case, PAFLU filed a petition for certification election. May the
certification election be suspended pending the determination of the
case?
 32

Yes. Pendency of a formal charge of company domination is a prejudicial

question that bars proceedings for certification election. (United CMC
Textile Workers vs. BLR)

2. Who can file and maintain an opposition to the holding of the

certification election based on a charge of company
domination? Only the union who made the charge since it is the
entity that stands to lose and suffer prejudice by the certification
election. (Id.)

What if there is a pending unfair labor practice charge by the

ER against the union. Can this stay the certification election?
No. (Barrera vs. CIR)

3. What kind of charge of company domination will not suspend

the certification proceedings? A charge that is flimsy, made in bad
faith or filed purposely to forestall the certification election. (Id.)

5.7 Effect of Pending Petition for Cancellation of Trade Union

registration

An order to hold a certification election is proper despite the pendency for

cancellation of the registration certificate of union which is a party to the
representation dispute. The rationale for this is that all the time the
respondent union filed its petition, it still had the legal personality to perform
such act absent an order directing a cancellation. (Association of CA EE’s vs.
Ferrer-Calleja)

Section 6. Collective Bargaining, Process, Procedures and Issues

6.1 General Concepts

1. What is collective bargaining? Collective bargaining has been
defined as the process of negotiation between an ER or ER’s and the
EE’s organization or union to reach an agreement on the terms and
conditions of employment for a specified period. It covers the entire
range of organized relationships between ER’s and EE’s represented by
union, this includes the negotiation, administration, interpretation or
application of the labor contract. (Alcantara)

2. What are the most important aims or aspects of collective

bargaining?

The most important aims are :

a. To establish industrial peace by enabling capital and labor to
resolve their disputes and controversies on terms mutually
acceptable and satisfactory to themselves.

b. To enhance industrial efficiency through speedy resolution of

labor disputes concerning fixing of wages, working hours and
other terms and conditions of contracts incorporating such
agreements, and the adjustment or settlement of any grievance
arising thereunder.

c. To establish benefits of labor higher or greater than those fixed

by law. The various aspects are :
 33

d. The duty of the parties to bargain and negotiate on proposals

concerning wages, working hours and other terms and conditions
of employment.

e. The duty of the parties to adhere to statutory standards of good

faith, promptness and expeditious actions.

f. The duty to refrain from unilateral changes concerning matters

subject to bargaining.

g. In case there is an existing CBA, the duty to adhere faithfully to

its terms and not terminate or modify the same during its period
of effectivity. (Alcantara)

3. What is the nature and purpose of collective bargaining?

Collective bargaining is a democratic framework to stabilize the relation

between labor and management to create a climate of sound and stable
industrial peace. It is a mutual responsibility of the ER and the union and
is their legal obligation. (loy vs. NLRC)

4. What are the jurisdictional preconditions of collective

bargaining?

The mechanics of collective bargaining is set in motion only when the

following jurisdictional preconditions are present :

a. Possession of the status of majority representation of the EE’s

representative in accordance with any of the means of selection
or designation provided by the Labor Code.

b. Proof of majority representation.

c. Demand to bargain under Art. 250. (Id.)

6.2 Bargainable Issues

Obligation to Negotiate Mandatory Bargaining Subjects

1. It is the obligation of the ER and the EE’s representative to

bargain with each other with respect to “wages hours and
other terms and conditions of employment”. They are statutory
of “mandatory” proposals requiring the party to whom they are made
to bargain in good faith concerning them. (Azucena) However, the law
does not compel agreements between ER’s and EE’s and neither party
is obligated to yield even on a mandatory bargaining subject, for as
long as they bargain in good faith. (Id.)

2. What are considered mandatory subjects of bargaining?

a. Wages and other types of compensation
b. Working hours
c. Vacations and holidays
d. Bonuses
e. Pensions and retirement plans
f. Seniority
g. Transfer
 34

h. Lay-off
i. EE’s workloads
j. Work rules and regulations
k. Rent company houses
l. Union security arrangements (Azucena)
m.No-Lockout Clause
n. Clause fixing contractual term.

Non-Mandatory Subjects
1. The right to bargain on a non-mandatory subject does not include to
right to insist on the inclusions of the non-mandatory subject in the
CBA as a condition to any agreement. (Azucena)

2. Give some examples of non-mandatory subjects :

a. Management prerogative clauses.
b. Union discipline clause.
c. Arbitration, strike vote or no-strike clauses.

6.3 Bargaining Procedure

Private Procedure

Art. 251 : In the absence of the CBA, it shall be the duty of the ER and the
representatives of the EE’s to bargain collectively.

Code Procedure

Describe the procedure in collective bargaining : In the absence of an

agreement or other voluntary arrangement providing for a more expeditious
manner of collective bargaining, the following procedures shall be observed :

1. When a party desires to negotiate an agreement, it shall serve a

written notice upon the other with a statement of its proposals. The
other party shall make a reply thereto not later than 10 calendar days
from the receipt of such notice.

2. Should difference arise on the basis of such notice and reply, either
party may request a conference which shall begin not later than 10
calendar days from date of request.

3. If the dispute is not settled, the Board shall intervene upon request of
either or both parties to conciliation meetings. The Board shall have
the power to issue subpoenas requiring the attendance of the parties
to such meetings. It shall be the duty of the parties to participate fully
and promptly in the conciliation meetings the Board may call.

4. During the conclusion proceedings in the Board, the parties are

prohibited from doing any act which may disrupt or impede the early
settlement of the dispute.

5. The Board shall exert efforts to settle disputes amicably and encourage
the parties to submit their case to voluntary arbitration. (Art. 250)

6. The parties shall at the request of either of them, make available such
up-to-date financial information on the economic situation of the
undertaking, as is material and necessary for meaningful negotiations.
 35

Where the disclosure of some of the information could be prejudicial to

the undertaking, its communication may be made condition upon a
commitment that it would be regarded as confidential to the extent
required. (Sec. 5, Rule XIII, Book V, IRR’s)

7. Information and statements made at conciliation proceedings shall be

treated as privilege communication and shall not be used as evidence
in the Commission. Conciliators and similar officials shall not testify in
any court or body regarding any matters taken up at conciliation
proceedings conducted by them. (Art. 233)

8. The agreement negotiated by the EE’s bargaining agent should not be

ratified or approved by the majority of all the workers in the bargaining
unit. (Art. 231) [Ratification in not needed when the CBA is a product of
an arbitral award. The arbitral award may result from voluntary
arbitration or from the secretary’s assumption of jurisdiction or
certification of the dispute to the NLRC. (Azucena)]

A. NATURE OF PROCEDURE

Collective bargaining does not end with the execution of an agreement.

It is a continuous process. The duty to bargain imposes on the parties during
the term of their agreement the mutual obligation “ to meet and confer
promptly and expeditiously and in good faith for the purpose of adjusting any
grievances or question arising under such agreement. (RSB vs. CIR)

Duty to Bargain

Explain the meaning of the duty to bargain effectively : The duty

to bargain collectively means the performance of a mutual obligation to
meet and confer promptly and expeditiously and in good faith for the
purpose of negotiating an agreement with respect to wages, hours of work,
and all other terms and conditions of employment including proposals for
adjusting grievances or questions arising under such agreement and
executing a contract incorporating such agreement if requested by either
party, but such duty does not compel any party to agree to a proposal or to
make any concession. (Art. 252) In case there is an existing collective
contract, the duty shall include the obligation to adhere faithfully to its terms
and not terminate or modify the same during its period of effectivity. (Art. 253)

6.4 The CBA

What is the CBA? It is a negotiated contract between a legitimate

labor organization and the ER concerning wages, hours of work and all other
terms and conditions of employment in a bargaining unit, including
mandatory provisions for grievances and arbitration machineries. (Sec. 1, Rule
VI, Book V, IRR’s)

Registration - Period, Requirements and Actions

Art. 231 : Within 30 days from the execution of a CBA the parties shall
submit copies of the same directly to the Bureau of Regional Office of the
DOLE for registration accompanied with verified proofs of its posting in 2
conspicuous places in the place of work and ratification by the majority of all
the workers in the bargaining unit. The Bureau of Regional Offices shall act
upon the application for registration of such CBA within 5 calendar days from
 36

the receipt thereof. The Regional office shall furnish the Bureau with a copy
of the CBA within 5 days from its submission. The Bureau shall maintain a file
of all CBA’s and other related agreements and records of settlements of labor
disputes and copies of orders, decisions of voluntary arbitrators. The file shall
be open and accessible to interested parties under conditions prescribed by
the Sec. of Labor and Employment.

Contract Beneficiaries
1. When a CBA is entered into by the union representing the EE’s and the
ER, even the non-member EE’s are entitled to the benefits of the
contract. (Rivera vs. SMC)

2. A CBA provides for the deduction of union dues from non-

member of the bargaining union. Is the stipulation valid? Yes. It
provides for the collection of an agency fee from the members who
accept and enjoy the benefits attained through the efforts of the
bargaining agent. The non-union members should not be unjustly
enriched at the expense of the bargaining agent. (Alcantara)

3. How about if the stipulation was not provided for in the CBA
but was merely requested by the bargaining union from the
ER? The stipulation is still valid. EE’s of an appropriate collective
bargaining unit who are not members of the recognized collective
agent may be assessed a reasonable fee equivalent to the dues and
other fees paid by members of the recognized collective bargaining
agent, if such union members accept the benefits under the CBA. The
individual authorization required under Art. 241 shall not apply to the
non-members recognized collective bargaining agent. (Art. 248) The law
does not impose as a condition for the collection of the agency fee that
the same be provided in the CBA, the basis of the union’s right to the
agency fee is quasi-contractual, not contractual. (Alcantara)

4. The CBA negotiated by union Y provides for wages to EE’s in the

production and maintenance department. To avoid discrimination, the
company also granted the increases to EE’s in the administrative and
sales department. Union Y now demands an agency fee from the EE’s
of these departments. Is such demand valid?

No. In the 1st place, the EE’s in the latter 2 departments do not belong to
the bargaining unit covered by the agreement. In the 2 nd place, the wage
increases were not obtained through the efforts of union Y. (Id.)

Contract Administration and Enforcement

A. NATURE OF CONFLICT
1. While the terms and conditions of a CBA constitute the law between
the parties, it is not, however, an ordinary contract to which is applied
the principles of law governing ordinary contracts. A CBA, as a labor
contract within the contemplation of Art. 1700, NCC which governs the
relations between labor and capital, is not merely contractual in nature
but impressed with public interest, thus it must yield to the common
good. As such, it must be construed liberally rather than narrowly and
technically, and the courts must place a practical and realistic
construction upon it, giving due consideration to the context in which it
is negotiated and the purpose which it is intended to serve. (Davao
Integrated vs. Abarquez) However, like ordinary contracts, ignorance of its
 37

terms by either party, including the EE’s who are principals of the
bargaining union, will not justify the breach of the contract. (Manalang
vs. Artex)

2. The CBA was not formally ratified by the majority of the workers in the
bargaining unit. However, the workers received and enjoyed the
benefits under the CBA. Can the EE’s later on have the contract
invalidated for lack of formal ratification?

No. The EE’s have already enjoyed benefits from it. They cannot receive
benefits under provisions favorable to them and later insist that the CBA
is void simply because other provisions turn out not to the liking of certain
EE’s. (Planters Product vs. NLRC)

3. Are wage increases paid by the ER pursuant to laws and wage

orders compliance with the wage increases provided for under
a CBA?

No. In the absence of a provision of law or the CBA to the effect that
benefits provided by the former encompass those provided by the latter,
benefits derived from either law or a contract should be treated as
separate from each other. A CBA is a contractual obligation imposed by
law. EE benefits derived from law are exclusive of benefits arrived through
negotiation and agreement unless otherwise provided by the agreement
itself or by law. (Meycauayan College vs. Drilon)

B. GRIEVANCE PROCEDURE – DISPUTE SETTLEMENT: ISSUES AND

INDIVIDUAL GRIEVANCE
1. Art. 260 : The parties to the CBA shall include therein provisions that
will ensure the mutual observance of its terms and conditions. They
shall establish machinery for the adjustment and resolution of
grievances arising from the interpretation of their CBA and those
arising from the interpretation or enforcement of company personnel
police.

All grievances submitted to the grievance machinery which are

not settled within 7 calendar days from its date of submission shall
automatically be referred to voluntary arbitration prescribed in the
CBA.

2. Art. 225 : However, an individual EE or group of EE’s shall have the

right at any time to present grievances to their ER.

3. J, a member of a union has been certified as the sole and exclusive

bargaining representative of the EE’s, sends a letter to management
requesting, in view of inflation, for an increase in his wages. Is this
allowed?

Yes. Although there may be an exclusive bargaining agent, an individual

EE or group of EE’s have the right to present grievances to their ER. It
would have been different if J demanded for wage increases for the other
EE’s. (Alcantara)

C. CONTRACT DURATION AND RENEWALS

1. Art. 253-A :
 38

a. Any CBA that the parties may enter into shall, insofar as the
representation aspect is concerned; be for a term of 5 years. No
petition questioning the majority status of the incumbent
bargaining agent shall be entertained and no certification
election shall be conducted by the DOLE outside of the 60-day
period immediately before the expiry date of the CBA.

b. All other provisions of the CBA shall be renegotiated 3 years after

its execution.

c. Any agreement on such other provisions of the CBA entered into

within 6 months from the date of expiry of the term of such other
provisions in the CBA, shall retroact to the day immediately
following such date.

 If any such agreement is entered into beyond 6 months, the parties

shall agree on the duration of retroactivity thereof.

2. Contract continue to have legal effects even after its expiry date, until a
new CBA is renegotiated and extended into. (Lopez Sugar Corporation vs. FFW)

4. Union A and Co. B concluded a CBA with a duration of 3 years. Upon

the expiration of the 3-year period, Co. B discontinued to benefits
under the CBA. Is this legal?

No. Art. 253 requires the parties to keep the status quo and discontinue
in full force, and effect until a new agreement is reached. (Alcantara)

D. CBA AND 3RD PARTY APPLICABILITY

Unless expressly assumed, labor contracts such as employment

contracts and CBA’s are not enforceable against a transferee of an
enterprise, labor contracts being in personam, thus binding only between
parties. As a general rule, there is no law requiring a bona fide purchaser of
assets of an ongoing concern to absorb in its employ the EE’s of the latter.
However, although the purchaser of the assets or enterprise is not legally
bound to absorb in its employ the EE’s of the seller of such assets or
enterprise the parties are liable to the EE’s if the colored or clothed with bad
faith. (ALU vs. NLRC)

E. CBA AND THE SEC. OF LABOR AND EMPLOYMENT

May the parties be required by the Sec. of Labor and Employment to

execute a CBA embodying terms and conditions that the latter may
determine? Yes. This is pursuant to the power of compulsory arbitration
vested in the Secretary. (Art. 263)

Section 7. Unfair Labor Practice

7.1 Introductory Concepts

Give the concept of unfair labor practice under the Labor Code :
Unfair labor practices
1. Violate the constitutional right of workers and EE’s to Self-organization
 39

2. Are inimical to the legitimate interests of both labor and management,

including their right to bargain collectively and otherwise deal with
each other in an atmosphere of freedom and mutual respect.

3. Disrupt industrial peace.

4. Hinder the promotion of healthy and stable labor management

relations. (HIDS)

7.2 Requisite Relationship

Conditions precedent to an Unfair Labor Practice

What are the conditions precedent to an unfair labor practice

charge?
1. The injured party comes within the definition of “EE” as that term is
defined by the Code.
2. The act charged as unfair labor practice must fall under Art. 248 or
249.

7.3 No Unfair Labor Practice : Illustrative Instances of Valid Exercise

of Management Rights

Personnel Movements
1. As a rule, it is the prerogative of the company to promote, transfer or
even demote its EE’s to the other positions when the interests of the
company reasonably demand it. Unless there are instances which
directly points to interference by the company with the EE’s rights to
self-organization, the transfer of an EE should be considered as within
the bounds allowed by law. (Rubberworld vs. NLRC)

2. 9 teachers were hired by a school on a yearly basis. The nine are

members of a union. After their 2nd yearly contract, the school refused
to renew their contract on the ground that their teaching performances
were not satisfactory. Is the refusal unfair labor practice?

No. The refusal was not by reason of their union membership but by
reason of their poor teaching performances. (Bilboso vs. Victorias Mining)

Grant of Profit-Sharing Benefits to Non-Union Members

It is the prerogative of management to regulate, according to its

discretion and judgment, all aspects of employment. 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 ER’s interest and not for
the purpose of defeating or circumventing the rights of EE’s under special
laws or valid agreement and are not exercised in a malicious, harsh
oppressive, vindictive or wanton manner or out of malice or spite. (Wise vs.
Wise EE’s Union)

Forced Vacation Leave

The forced vacation leave without pay in view of the economic crisis,
being neither malicious, oppressive or vindictive, does not constitute unfair
labor practice. (Philippine Graphic vs. NLRC)
 40

Issuance of Rules or Policy

Every business enterprise endeavors to increase its profits. In the

process, it may adopt or devise means designed towards that goal. (SMC vs.
Ople)

Taking Action Against Slowdown

EE’s have the right to strike, but they have no right to continue
working while rejecting the standards desired by their ER. Hence, the ER
does not commit as unfair labor practice by discharging EE’s who engaged in
slowdown, even if their object is a pay increase and therefore is lawful.
(Azucena)

EE Discipline

The dismissal of a union member because of threats made against the

life of the ER and there being evidence that more active members of the
union were retained is not an unfair labor practice. (PTUC vs. CIR)

Closed Shop Agreements

Dismissal of an EE upon demand of a union pursuant to a closed shop

agreement is not an unfair labor practice. (Lirag Textile vs. Blanco)

7.4 Unfair Labor Practice of ER’s

Restraint, Interference or Coercion

Art. 248 : It shall be unlawful for the ER to interfere with, restrain or
coerce EE’s in the exercise of their right to self-organization.

1. Although experience has shown that certain forms of conduct, however

disguised, either directly or indirectly result in actual interference with
or intimidation of EE’s in exercising their rights, to distinguish between
culpable “interference” from an innocent and non-interfering course of
conduct is often difficult. Interference with EE organizational rights was
found where the superintendent of the ER threatened the EE’s with
cutting their pay; increasing rent of the company houses, or closing the
plant if they supported the union and where the ER encouraged the
EE’s to sign a petition repudiating the union. (Azucena)

A. INTERROGATION

In order that questioning of an EE concerning his union activities would

not be deemed coercive, the ER must communicate to the EE the purpose of
the questioning, assure him that no reprisal would take place, and obtain his
participation on a voluntary basis. In addition, questioning must also occur in
a context free from ER hostility to union organization and must not itself be
coercive in nature. (Id.)

B. PROHIBITING AND INTERFERING IN ORGANIZING ACTIVITIES

Give instances of unfair labor practice in the form of prohibitions

against union organizing activities :
 41

1. Rule prohibiting solicitation of union membership in company property

during non-working and working time. (Id.) But if the prohibition is
merely during working hours, this is not unfair labor practice since the
ER has the prerogative of promulgating rules and enhance production
within its premises during working hours. (Alcantara)

2. Dismissal of union members upon their refusal to give up their

membership, under pretext of retrenchment due to reduced dollar
allocations. (Manila Pencil Co. vs. CIR)

3. Refusal over period of years to give salary adjustments according to

improved salary scales in the CBA’s. (Benguet Consolidated vs. BCI EE’s
Union)

4. Dismissal of an old EE allegedly for inefficiency, on account of her

having joined a union and engaging in union activities. (East Asiatic vs.
CIR)

5. Issuance of suspension and termination orders for EE’s participating in

a verification election. (Gochangco Workers Union vs. NLRC)

6. Dismissal of EE’s who refused to resign from their union and to affiliate
with another one which was formed at the instance of the ER.
(Progressive Development vs. CIR)

7. C, the duly elected president of the union, was dismissed by the

company for allegedly threatening the lives of 4 EE’s. It was however
established that he was very active in union affairs and that he was
dismissed a day after his union sent collective bargaining proposals to
the company; and that C, had no reason to threaten the 4 EE’s. (Royal
Undergarment vs. CIR)

8. Refusal to renew teaching contracts of teachers because of fear of the

school that there will be a strike the succeeding semester. (Rizal-
Memorial Colleges Union vs. NLRC)

C. VIOLENCE OR INTIMIDATION

Violation must have been found where the ER threatened EE’s favoring
the union with force or violence. (Azucena) In another case, the ER was found
guilty of unfair labor practice when 2 EE’s were provoked into a fight by 2
recently hired EE’s pursuant to a strategy of the company designed to
provide an apparent lawful cause for their dismissal and said dismissed EE’s
had not figured in similar incidents before or violated company’s rules in
their many years with the company. (Visayan Bicycle vs. NLU)

D. ESPIONAGE AND SURVEILLANCE

One form of “pressure” which some over-eager ER’s sometimes use is

the practice of spying upon EE’s. Inasmuch as the “pressure” results more
from the EE’s apprehension than from the ER’s purpose in spying, and the
use of its results, it has been held to be no answer to a charge of unfair labor
practice that the fruits of espionage were not used. When an ER engages in
surveillance or takes steps leading his EE’s to believe it is going on, a
violation results because the EE’s come under threat of economic coercion or
retaliation for their union activities. (Azucena)
 42

E. ECONOMIC INDUCEMENTS
1. A violation results from an ER’s announcements of benefits prior to a
representation election, where it is intended to induce the EE’s to vote
against the union. (Id.)

2. While a strike is going on, the president of the company sent each
worker a letter stating among others that if the latter returned to work,
he can have his meals within the office, make a choice whether to go
home at the end of the day or to sleep nights at the office, enjoy free
coffee and occasional movies. Is the writing of the letter unfair labor
practice?

Yes. The letter tends to undermine the concerted activity of the EE’s, an
activity which they are entitled free from the ER’s molestation. (Insular Life
EE’s Association vs. Insular Life)

F. EXPRESSION OF ANTI-UNION OPINION

If the ER evinced willingness to be guided by and to accept the EE’s

choice, criticism or depreciating remarks made by the ER concerning a
particular labor union or labor unions generally did not constitute an unfair
labor practice, provided, of course, the remarks were not so hostile as to
evidence or produce a coercive or intimidating purpose or effect. (Azucena)

F.1 Totality of Conduct Doctrine

The culpability of ER’s remarks were to be evaluated not only on the

basis of their implicit implications, but were the be appraised against the
background for and in conjunction with the collateral circumstances i.e.
history of particular ER’s labor relations or anti-union bias or because of their
connection with an established collateral plan of coercion or interference.
(Id.)

G. MASS LAY-OFF
1. A company’s capital reduction efforts, a subterfuge, a deception, to
camouflage the fact that it has been making profits and to justify mass
lay-off of its EE ranks, especially of union members, were an unfair
labor practice. (Madrigal and Company vs. Zamora)

2. There is unfair labor practice in the lay-off of a bank of 65 EE’s who

were active union members allegedly by reason of retrenchment,
although the bank was not suffering any losses. (People’s Bank vs. People’s
Bank EE’s Union)

G. LOCKOUTS, CLOSUREla
1. A lockout, actual or threatened, as a means of dissuading the EE’s from
exercising their rights clearly an unfair labor practice. (Azucena)

2. An ER which closes its business to put an end to a union’s activities

and which made no effort to allow the EE’s attempt to exercise their
right to self-organization and collective bargaining commits unfair labor
practice. (Sy Chi Junk Shop vs. Federacion Obrero de la Industria)
 43

3. Where there is a simulated sale as a device to merely get rid of the

EE’s who were members of the union, the company is guilty of unfair
labor practice. (Moncada Bijon Factory vs. CIR) The acquiring company
created to relieve the old company of its obligations is liable for the old
company’s obligations. (PLASLU vs. Sy Indong) The doctrine of “piercing
the veil of corporate identity” will be utilized, to the effect, that the
separateness of corporate personality will be disregarded if it is being
used to run away from corporate obligations. (Delfin vs. Inciong)

H. RUN-AWAY SHOP

The transfer of an industrial plant from one location to another in order

to discriminate against EE’s at the old plant because of their union activities.
(Azucena)

I. REFUSAL TO HIRE STRIKING WORKERS

There is unfair labor practice in the refusal of ER to reinstate strikers

who abandoned their strike and who voluntarily and unconditionally offered
to return to work. (Cromwell vs. CIR)

Yellow Dog Contract

1. Art. 248 : It shall be unlawful for the ER to require as a condition of
employment that a person or an EE shall not join a labor organization
or shall withdraw from one to which he belongs.
2. What is a yellow dog contract? It is a promise exacted from workers
a condition of employment that they do not belong to, or attempt to
foster, a union during their period of employment. The typical yellow
dog contract contains a representation by the EE that he is not a
member of a labor union and a promise by him not to join a labor union
or upon joining a union to quit his employment. (Alcantara)

3. X, a member of a union, applied for employment with Y Co. The union

is not among the unions in the bargaining unit. He was told by the
personnel manager that he cannot be employed unless he resigned
from his union. X refuses to do so. He was not hired. Is this unfair labor
practice?

Yes. This is an example of an exaction of a yellow dog contract. The

defense that X is not yet an EE of Y is not tenable since the unfair labor
practice covered by a “yellow dog” contract may be committed against a
prospective EE. (Alcantara)

Contracting Work Out

1. Art. 248 : It shall be unlawful for an ER to contract out services or
functions being performed by union members when such will interfere
with, restrain or coerce EE’s in the exercise of their rights to self-
organization.

2. Shell dissolved its security guard section, transferred 18 guards to

other departments and eventually dismissed them, then contracted out
to an independent security agency. Such section was among the
departments covered by the existing CBA. In the absence of an express
reservation in the CBA of Shell’s right to abolish the section, did the ER
commit unfair labor practice?
 44

Yes. The dissolution of a section is a violation of the CBA, the terms of

which cannot be unilaterally disregarded by either party. Shell should
have specifically reserved its right to dissolve the section; a statement of
management prerogatives couched in general terms is not sufficient.
(Shell Oil vs. Shell)

Company Dominated Union

1. Art. 248 : It shall be unlawful for an ER to initiate, dominate, assist or
otherwise interfere with the formation or administration of any labor
organization, including the giving of financial aid or other support to it
or its organizers or supporters.

2. What are the various manifestations of domination of labor

union?
a. Initiation of the company union idea.
b. Financial support to the union.
c. ER encouragement and assistance i.e. immediately granting the
union exclusive recognition as a bargaining agent without
determining majority representation.
d. Supervisory assistance i.e. solicitation of membership. (Philippine
American Cigarette Factory Union vs. Philippine American Cigarette Factory)

Discrimination
1. Art. 248 : It shall be unlawful for an EE to discriminate in regard to
wages, hours of work, and other terms and conditions of employment
in order to encourage or discourage membership in any labor
organization. [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. (Azucena)]

2. Give some examples of discrimination resulting in unfair labor

practices :
a. Discrimination in work quota between members and non-
members of union. (AHS/Philippines EE’s Union vs. NLRC)

b. Discrimination in dissemination of bonus allocation of salary

adjustments between members and non-members of union
contrary to previous practice of dividing equally the percentage
of net profits. (Manila Hotel vs. CIR)

c. Even where business conditions justified a lay-off of EE’s, unfair

labor practices in the form of discriminatory dismissal were found
where only unionists were permanently dismissed while non-
unionists were not. (Manila Pencil vs. CIR)

d. Discrimination in regularization between old EE’s who were

members of union and new EE’s who were non-members. The
new EE’s were immediately given permanent appointments after
their hiring. (Manila Railroad vs. Kapisanan ng mga Manggagawa sa
Manila Railroad)

e. Indirect discrimination i.e. the discharge of an EE due to the

union activities of wife, brother or husband. (Azucena)
 45

3. What is the test of discrimination to be considered unfair labor

practice? 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 EE is actually discharge because of his union
activities. If the discharge is actually motivated by a lawful reason, the
fact that the EE is engaged in union activities at the time will not lie
against the ER and prevent him from the exercise of his business
judgment to discharge an EE for cause. (Id.)

4. A company considers one factor for promotion the fact that an EE is

Ilocano. Assuming this is discriminatory, is this unfair labor practice?

No. Only such act as would interfere with the EE’s right to self-
organization, encourage or discourage membership in a labor
organization, or discriminate against an EE of having given or being about
to give testimony under the Code are considered unfair labor practices.
The said provisions, being penal in character, should be strictly construed.
(Alcantara)

Violation of Duty to Bargain

1. Art. 248 : It shall be unlawful for an ER to violate the duty to bargain
collectively as prescribed by this Code.

2. While the law does not compel the parties to reach an agreement, it
does contemplate that both parties will approach the negotiation with
an open mind and make reasonable effort to reach a common ground
of agreement. (Kiok Loy vs. NLRC)
3. ALU was certified as the bargaining agent of Balmar Farms. Balmar
subsequently received a letter by the president of the union of its
workers that they wanted to negotiate directly with the company and
not through ALU. Because of this, Balmar refused to negotiate with
ALU. Is this unfair labor practice?

Yes. ALYU has been certified as the exclusive bargaining agent, and it is
not for Balmar to question which group in the bargaining representative of
its workers. (Balmar farms vs. NLRC)

Testimony of EE
Art. 248 : It shall be unlawful for an ER to dismiss , discharge or otherwise
prejudice or discriminate against an EE for having given or being about to
give testimony under this Code.

Negotiation or Attorneys Fees

Art. 248 : It shall be unlawful for an ER to pay negotiation of attorneys fees
to the union or its officers or agents as part of the settlement of any issue in
collective bargaining or any other dispute.

Violation of CBA
1. Art. 248 : It shall be unlawful for an EE to violate a CBA.

2. Art. 261 : Violations of a CBA, except those which are gross in

character, shall no longer be treated an unfair labor practice and shall
be resolved as grievances under the CBA.

7.5 Unfair Labor Practice of Labor Organizations

 46

Restraint or Coercion by Labor Organization

1. Art. 249 : It shall be unfair labor practice for a labor organization to
restrain or coerce EE’s in the exercise of their right to self-organization.

2. The provision is violated by a union’s restraining or coercing an EE in

the exercise of his right to refuse to participate or recognize a strike i.e.
blocks their ingress and egress from the plant or damages their
automobiles. (Azucena)

Discrimination
1. Art. 249 : It shall be unfair labor practice for a labor organization to
cause or attempt to cause an ER to discriminate against an EE,
including discrimination against an EE with respect to who,
membership in such organization has been denied or to terminate an
EE on any ground other than the usual terms and conditions under
which membership is made available to other members.

2. The union may not arbitrarily use the union security clause to unjustly
discriminate against non-members of the union. (Salunga vs. CIR)

3. Due to negligence of a mother federation in attending to a case filed

by its local against the ER, 32 out of the 36 members of the local union
signed a resolution of disaffiliation from the mother federation. The
federation demanded dismissal of the union members pursuant to the
maintenance of membership clause in the CBA. Thereafter, the union
members were dismissed. Is there unfair labor practice?

Yes. The union members were dismissed by reason of their freedom to

disaffiliate. (Liberty Cotton Mills Workers Union vs. Liberty Cotton Mills)

4. What is the liability of the ER and the mother federation? The

company’s liability should be limited to reinstatement considering that
the dispute revolve around the mother federation and its local. The
mother federation at whose instance the workers were dismissed,
should be held liable for payment of backwages. (Id.)

Refusal to Bargain

Art. 249 : It shall be unfair labor practice for a labor organization to violate
the duty, or refuse to bargain collectively with the ER, provided
 it is the representative of the EE’s.

Featherbedding and Make-Work Arrangements

1. Art. 249 : It shall be unfair labor practice for a labor organization to

cause or attempt to cause an ER to deliver or agree to pay or deliver
any money or other things of value, in the nature of an exaction, for
services which are not performed or not to be performed including the
demand for free for union negotiations.

2. Define featherbedding : Name given to EE practices which create or

spread employment by “unnecessarily” maintaining or increasing the
number of EE’s used, or the amount of time consumed to work on a
particular job. (Azucena)
 47

3. A union in a company declares a strike to compel the ER to assign 2

checkers to 1 container. If it can be established that only 1 checker is
needed for a container, has the union committed in unfair labor
practice?

Yes. The union is guilty of featherbedding.

Negotiation Fees

Art. 249 : It shall be unfair labor practice for a labor organization to ask for
or accept negotiations or attorneys fees from the ER’s as part of the
settlement of any issue in collective bargaining or any other dispute.

Violation of CBA

1. Art. 249 : It shall be unfair labor practice for a labor organization to

violate a CBA.

2. Art. 261 : 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. {“Gross Violations of a CBA”]
“ Flagrant and/or malicious refusal to comply with the economic
provisions of such agreement. (Alcantara)
7.6 Enforcement, Remedies and Sanctions

Parties Liable for Acts

1. Who may commit an unfair labor practice? The ER or a labor
organization may commit unfair labor practices. (Id.)

2. In case the ER committing the unfair labor practices is a

corporation, association or partnership, who may be held
criminally liable? Only the officers and agents of corporations,
associations or partnerships who have actually participated in,
authorized or ratified the unfair labor practices shall be held criminally
liable. (Art. 248)

3. Who may be held criminally liable for the unfair labor practices
committed by labor unions? Only the officers, members of
governing boards, representatives or agents or members of labor
associations or organizations who have actually participated in,
authorized or ratified the unfair labor practices shall be held criminally
liable. (Art. 249)

Prosecution and Prescriptive Period

A. CIVIL ASPECT
1. Art. 247 : Subjects to the exercise by the President or by the Secretary
of Labor and Employment of the powers vested in them by Arts. 263
and 264 of this Code, the civil aspects of all cases involving unfair
labor practices which may include claims for actual, moral, exemplary
and other forms of damages, attorneys fees and other affirmative
relief, shall be under the jurisdiction of the Labor Arbiters.

 The Labor Arbiters shall revolve such cases within 30 days from the
time they are submitted for decision.
 48

 Recovery of civil liability in the administrative proceedings shall bar

recovery under the Civil Code.

2. Art. 290 : All unfair labor practices shall be filed with the appropriate
agency within 1 year from the accrual of such unfair labor practice,
otherwise, they shall be forever barred.

B. CRIMINAL ASPECT
1. Art. 247 : No criminal prosecution may be instituted without a final
judgment finding that an unfair labor practice was committed, having
been first obtained in the administrative proceedings. During the
pendency of the administrative proceeding, the running of the period
of prescription of the criminal offense herein penalized shall be
considered interrupted. The final judgment in the administrative
proceeding shall not be binding in the criminal case nor be considered
as evidence of guilt but merely as proof of compliance of the
requirements therein set forth.

2. Art. 290 : All unfair labor practices shall be filed with the appropriate
agency within 1 year from the accrual of such unfair labor practice,
otherwise, they shall be forever barred.

3. Art. 228 : The criminal charge shall fall under the concurrent
jurisdiction of the Municipal or regional trial Court.

4. When is an unfair labor practice deemed to be purely an

administrative offense and not a criminal act? When the acts
complained of hinges on a question of interpretation or implementation
of ambiguous provisions of an existing CBA. (Art. 288)

Compromise

Unfair labor practice is not subject to compromise. (Gochangco Workers Union vs.
NLRC)

Relief in Unfair Labor Practice Cases

What are the various forms of relief available in unfair labor

practice cases?
1. Cease and Desist Order – Order served upon such person requiring
him to cease and desist from such unfair labor practice.

2. Affirmative order – Directing full reinstatement of EE with back pay.

3. Disestablishment – Orders directing the ER to withdraw all

recognition from a company-dominated labor union and to disestablish
the same.

4. Order to bargain – Affirmative order to the respondent to “bargain”

with the bargaining agent.

Penalties

Art. 288 : Except as otherwise provided in this Code, or unless the acts
complained of hinges on a question of interpretation or implementation of
 49

ambiguous provisions of an existing CBA, any violation of the provisions of

this Code declared to be unlawful or penal in nature shall be punished with
1. A fine of not less than P1,000.00 nor more than P10,000.00 or
2. Imprisonment of not less than 3 months or more than 3 years , or
3. Both such fine and imprisonment at the discretion of the court.

In addition to such penalty, any alien found guilty shall be summarily

deported upon completion of service of sentence.

Section. 8. Union Security

8.1 Statutory Basis

Art. 248 : Nothing in this Code or in any other law shall stop the parties from
requiring membership in a recognized collective bargaining agent as a
condition of employment, except those EE’s who are already members of
another union at the time of the signing of the CBA.

8.2 Types – Union Security Provisions

What are the different types of union security arrangements?

1. Closed shop – Agreement whereby an ER binds himself to hire only
members of the contracting union who must continue to remain
members of the union in good standing for the duration of the
agreement as a for the continued employment.

2. Union shop – Only whereby an ER is permitted to employ a union-

worker, but to retain employment such worker must become a union
member after some period and maintain his membership therein in
good standing for the duration of the agreement.

3. Maintenance and membership clause – Does not require non-

members to join the union but provides that those who do not join
must maintain their membership for the duration of the union contract,
under penalty of discharge.

4. Agency shop – An agreement whereby EE’s must either join the union
or pay to the union as exclusive bargaining agent a sum equal to that
paid by members.

Distinguish closed shop from union shop :

* Closed shop –
 The ER cannot hire any worker who is not a member of the contracting
union.
 Membership in the contracting union is a condition for employment
and retention of employment.

* Union shop –
 ER may hire worker who is not a member of the contracting union but
the worker must within a specified period after his employment
become a member of the contracting union.
 Membership in the contracting union is a condition for continued
employment.

8.3 Rationale
 50

The validity of a union security provisions is largely recognized; it is

intended to make the union strong that true collective bargaining may be
assured. Statutes recognizing the validity of closed shop agreements have
been justified on the basis of police power. The recognition of the validity of
such agreements has been held to the most prized achievement of unionism.
(Juat vs. CIR)

8.4 Validity Agreement and Effect on Freedom of Choice

A union security provision is not a restriction of the right of freedom of

association guaranteed by the Constitution. (Villar vs. Inciong)

8.5 Contract Drafting and Interpretation of Provisions – Union

Security

1. A CBA provides : The union shall have the exclusive right and privilege
to supply the company with laborers and the company agrees to hire
only such persons who are members of the union. If the union member
is expelled, is the company obliged to terminate the EE’s employment?

No. The stipulation does not establish a closed-shop agreement :

Dismissal pursuant to a closed-shop clause must clearly appear in the
CBA. (Confederated Sons of Labor vs. Anakan)

2. A CBA provides : The ER agrees to employ only members in good

standing of the union. The ER, however, reserves its rights to accept or
reject EE’s where they fail to meet its requirements. The ER agrees not
to employ any new EE unless he is a member of good standing of the
union provided such new EE meets the qualifications required by the
ER. Is the ER obliged to terminate an expelled member of the union?

No. The contract does not clearly prescribe the period within which the EE
must remain a member of good standing of the union. And it is not clear
that membership in the union is a condition for continuation or retention
of employment. Stipulations of this nature are strictly construed; doubts
are resolved against the existence of the right to dismiss.

8.6Closed Shop Agreement

1. When is a closed shop provision not applicable?

All EE’s in the bargaining unit covered by a closed shop agreement are
subject to its terms, except:

a. Any EE who at the time the closed shop agreement takes effect
is a bona fide member of a religious organization which prohibits
its members from joining labor unions on religious grounds
(Victoriano vs. Elizalde Rope Workers Union)

b. EE’s already in the service and already members of a labor union

or unions other than the majority union at the time the closed
shop agreement took effect. (Sta. Cecilia Sawmills vs. CIR)

c. Supervisors ineligible to join the majority union because of the

membership therein of EE’s under their supervision. (BISCOM vs.
PAFLU)
 51

d. EE’s excluded from the closed shop by express terms of the

agreement. These exclusions applies to other types of union
security arrangements, such as the agency shop. (National Brewery
and Allied Industries Labor Union vs. SMC)

2. X union has a CBA with Y. Co. which provides “The Company

undertakes not to employ anyone who is not a member of the Union
and to dismiss from employment any EE who resigns or is expelled
from the Union.” Z, an EE, resigns from the union. By reason of the
agreement, he is dismissed. Is the dismissal valid?

Yes. His dismissal was effected pursuant to the closed shop provision of
the CBA. The validity of such provision is recognized. (Just vs. CIR)

3. Union A wins over Union B in a certification election, then enters into a

CBA with the ER. The CBA contained a closed shop provision. Is the ER
obliged to dismiss the members of union?

No. The closed shop agreement cannot be enforced against EE’s who are
already members of another union at the time of the signing of the CBA.
To compel the members of a minority union to disaffiliate from their union
and join the majority or contracting union would render nugatory the right
of the EE’s to self-organization. (Freeman Shirt vs. CIR)

4. The Bagong Buhay Union had with the Artex Development a CBA with
a closed shop stipulation. 3 of its members affiliated themselves with
another union. When being dismissed, they claimed they were
unaware of the contents of the CBA. Is the contention tenable?

No. Neither their ignorance, nor their dissatisfaction with the CBA would
justify breach thereof or the formation by them of a union of their own. A
union member who is employed under an agreement between the union
and his ER is bound by the provisions thereof. (Manalang vs. Artex
Development)

8.7Maintenance of Membership

1. A CBA provides : Both parties agree that all EE’s of the company who
are already members of the union at the time of the signing of this
agreement shall continue to remain members of the union for the
duration of the agreement. 3 members of the union resigned to join a
new union. They were dismissed. Is their dismissal legal?

No. The contractual provision relied upon does not expressly provide that
membership in the union is a condition for continued employment in order
that an ER may be bound to dismiss EE’s who does not maintain their
membership in the union is a condition for continued employment. In
order that an ER may be bound to dismiss EE’s who do not maintain their
membership in the union, the stipulation to this effect must be so clear as
to leave no room for doubt. An undertaking of this nature is so harsh that
it must be strictly construed and doubts must be resolved against the
existence of the right to dismiss. (Manila Cordage vs. CIR)

2. About 8 months after the execution of a CBA, some union members

joined another union and even filed a petition for certification election.
 52

As the CBA contained a maintenance of membership clause the

bargaining agent sought the dismissal of the EE’s. Is this valid?

Yes. The union members committed acts of disloyalty. When members

seek the destruction of the organization to which they belong, they forfeit
their right to remain as members. (Tanduay Distillery Union vs. NLRC)

3. Does the expiration of the CBA preclude the dismissal of the

guilty unionmembers?

No. The expiration of the CBA did not cleanse from them from the acts of
disloyalty. They committed such acts while the CBA was in force. (Id.)
4. If the act of disloyalty was committed during the “freedom
period”, could the union security clause still be enforced?

No. The requirement for union members to maintain their membership is

good standing ceases to be binding during the 60-day freedom period
immediately preceding the expiration of the CBA. (Id.)

5. X union has a CBA with Y Co., containing a maintenance of

membership clause. Due to the refusal of Z to join it, X demanded the
dismissal of Z pursuant to the clause. Is this valid?

No. The maintenance of membership clause only applies to EE’s who are
members of the contracting union at the time of the execution of the CBA
and to those who may thereafter on their own volition join the union.
(Alcantara)

8.8 Financial Security – Agency Shop

Art. 248 : EE’s of an appropriate collective bargaining unit who are not
members of the recognized collective bargaining agent may be assessed a
reasonable fee equivalent to the dues and other fees paid by members of
the recognized collective bargaining agent, if such non-union members
accept the benefits under the CBA. The individual authorization required
under Art. 242 of this Code shall not apply to the nonmembers of the
recognized collective bargaining agent.

8.9 Liabilities of Union and ER

Liability of Union to Pay Wages and Fringe Benefits of Illegally

Dismissed EE

Where the ER compelled the EE to go on forced leave upon

recommendation of the union for alleged violation of the EE of the closed
shop agreement, the union is the party liable to pay the wages and fringe
benefits which the EE failed to receive. The ER would not have compelled the
EE were it not for the union’s insistence. (Manila Mandarin EE’s Union vs. NLRC)

ER in Good Faith not Liable

Where the ER dismissed his EE’s in the belief in good faith that such
dismissal was required by the closed shop provisions of the CBA with the
union, he may not be ordered to pay back compensation to such EE’s
although their dismissal is illegal. (NLU vs. Zip Venetian Blind)
 53

Section 9 : Union Concerted Activities

9.1 Basis of Right to Engage in Concerted Activities

Art. 263 : Workers shall have the right to engage in concerted

activities for purposes of collective bargaining or for their mutual benefit and
protection. The right of legitimate labor organizations to strike and picket and
of ER’s to lockout, consistent with national interest shall continue to be
recognized and respected.

Policy Statement

In line with the policy of the State to encourage free trade unionism
and free collective bargaining, workers shall have the right to engage in
concerted activities for purposes of collective bargaining or for mutual
benefit and protection. A similar right to engage in concerted activities for
mutual benefit and protection is tacitly and traditionally recognized in
respect of ER’s. (Ilaw at Buklod ng Manggagawa vs. NLRC)

9.2 Strike Activity

1. Define a strike. It is a temporary stoppage of work by the concerted

action of EE’s as a result of an industrial or labor dispute. (Art. 212) A
valid strike needs a labor dispute. (Azucena)

[“Labor dispute” – Any controversy or matter concerning terms and

conditions of employment or the association of representation of persons
in negotiation, fixing, maintaining, changing or arranging the terms and
conditions of employment, regardless of whether or not the disputants
stand in the proximate relations of ER’s and EE’s. (Art. 212)

2. Fruit Canning Co. has been requiring workers to render overtime work
of 5 hours everyday for the past 6 months. Due to the refusal of the ER
to stop this practice, all the EE’s refused to work overtime and left the
plant after working 8 hours during the day. They reported for the
regular work schedule the following morning. Is this a strike?

Yes. It is a temporary stoppage of work by the concerned action of the

EE’s by reason of a labor or industrial dispute. A labor dispute includes
any controversy or matter concerning terms and conditions of
employment. (Alcantara)

3. The EE’s due to a dispute involving wages worked for only 8 hours a
day instead of 10 hours in accordance with a practice which had been
followed for 5 years. Is the refusal of the workers to adhere to the 10-
hours work schedule a strike?

Yes. It is a limited or partial strike. (Id.)

Nature and Purpose

A strike is coercive activity resorted to by laborers to enforce their

demands. The idea behind a strike is that a company engaged in a profitable
business cannot afford to have its production or activities interrupted, mush
less, paralyzed. Because of this threat or danger of loss, the company gives
 54

in to the demand of the strikers, just so it can maintain continuity in

production. (Philippine Can Company vs. CIR)

Effect of Work Relationship

EE’s who go on strike do not quit their employment. It is a mere

temporary stoppage of work. The declaration of a strike does not amount to
renunciation of the employment relation. The relationship of ER and EE
continues. (Rex Taxi vs. CIR) During a strike, the ER-EE relationship is not
terminated but merely suspended as the work stoppage is not permanent
but only temporary. The EE’s status during a strike remains but the effects of
employment are suspended, hence, a striking EE, as a rule, is not entitled to
his wage during a strike. (Azucena)

Avoidance of Strikes

1. Pacific measures must first be exhausted before strikes are to be

declared. Strikes and other coercive means of settling the dispute are
deemed justified only when peaceful alternatives have proved
unfruitful in settling the dispute. (PHILMAROA vs. CIR)

2. The union sent demands for the dismissal of a foreman on grounds that
he maltreated an EE. The company refused to dismiss the foreman but
reopened his case in the fiscal’s office. Because of the company’s
refusal, the union went to strike. Is the strike legal?

No. The demand for the dismissal had been accorded the attention it
merited. (NLU vs. CIR)

Protection of Strike

What are the general protections of the right to strike?

The right to strike is given the following protections:
1. It is generally not subject to labor injunctions or restraining order. (Art.
254)

2. EE’s may not be discriminated against merely because they have

exercised the right to strike. (Art. 248)

3. The use of strike breakers is prohibited. (Art. 264)

9.3 Types, Changes and Conversion - Strikes

Definitions
1. Define an economic strike – Intended to forge wage and other
concessions from the ER, which is not required by law to grant.
(Consolidated Labor Association vs. Marsman) Also known as bargaining
strikes.

2. Define unfair labor practice strike – Called against the unfair labor
practices of the ER, usually for the purpose of making him desist from
further committing such practices. (Azucena)

3. Define sympathetic strike – One in which the striking EE’s have no

demands or grievances of their own, but strike for the purpose of
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property of directly or indirectly aiding others, without direct relation to

the advancement of the interest of the strikers. (Id.)

4. What are the tests in determining the existence of an unfair

labor practice strike?

There are two tests in determining the existence of an unfair labor

practice strike:
a. Objectively, when the strike is declared in protest of unfair labor
practice which is found to have been actually committed;
b. 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 subsequently as not committed. (Id.) It is not
required that there be as such in fact unfair practice committed
by the ER. It suffices if such a belief in good faith is entertained
by labor as the inducing factor for staging a strike. (Shell Oil
Workers Union vs. Shell)

Violations of CBA’s except flagrant and/or malicious refusal to

comply with its economic provisions and shall not be considered unfair
labor practice and shall be strikeable. (Sec. 1, Rule XIII, Book V, IRR’s)

Change in Type

An economic strike may be converted into an unfair labor practice

strike, as when a strike for greater benefits is called off in anticipation of
negotiations and eventual agreement but is resumed upon the commission
by the ER of acts of discrimination against the leaders of the strike.
(Consolidated Labor Association vs. Marsman)

Non-Conversion –Strike to Lockout

A strike is not converted into a lockout by the filing of notice of offer to

return to work during pendency of dispute. (Rizal Cement Workers Union vs. CIR)

Sympathetic Strike

Because a valid strike presupposes a labor dispute, it follows that a

sympathetic strike is illegal. (Azucena)

9.4 Lockout

Definition

Define a lockout : Lockout means that temporary refusal to any ER to

furnish work as a result of an industrial or labor dispute. (Art. 212) It is an
ER’s act excluding EE’s who are union members from his business and
factory premises. (Sta. Mesa Slipways vs. CIR) A valid lockout needs a labor
dispute. (Azucena)

[“Labor dispute” – Any controversy or matter concerning terms and

conditions of employment or the association or representation of persons in
negotiating, fixing, maintaining, changing or arranging the terms and
conditions of employment, regardless of whether or not the disputants stand
in the proximate relation of ER’s and EE’s. (Art. 212)
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Nature and Purpose

Lockout is recognized as a valid weapon of management in collective

bargaining. It may be declared to bring pressure upon the union, where a
impasse has arisen during bargaining negotiations or where the union
commits unfair labor practices, subject to statutory requirements. (Azucena)

Effect of Work Relationship

Strike and lockout are similar in the sense that they connote temporary
stoppage of work. The relationship of ER and EE continues. (Id.)

9.5 Legality of Strike or Lockout

What are the 6 factors affecting the legality of strike or a lockout?

An illegal strike or lockout is one which :
1. Is contrary to a specific prohibition of law;
2. Violates a specific requirement of law;
3. Declared for an unlawful purpose
4. Employs unlawful means;
5. Declared in violation of an existing injunction;
6. Contrary to an existing agreement (Azucena)

Contrary to Specific Prohibition of Law

Government EE’s have the right to organize but they do not have the
right to strike. Since the terms and conditions of government EE’s are fixed
by law, government workers cannot use the same weapons employed by
workers in the private sector to secure concessions from their EE’s. (SSEA vs.
CA)

Procedural Requirements [N, C, SV, 7]

What are the procedural requisites for a strike to enjoy the

protection of law?
1. A notice of strike or lockout with the required contents, should be filed
with the DOLE, specifically the regional branch of the National
Conciliation and Mediation Board, copy furnished the ER or the union,
as the case may be. (Art. 263)

2. 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 the strike or lockout; the cooling off period is 30 days in case of
bargaining deadlock and 15 days in case of unfair labor practice.
However, in cases of dismissal from employment of union officers duly
elected in accordance with the union constitution and by-laws, which
may constitute union busting where the existence of the union is
threatened, the cooling off period need not be observed. (Id.)

3. During the cooling-off period, the NCMB mediates and conciliates the
parties. They are not allowed to do any act which may disrupt or
impede the early settlement of the dispute. A part of their duty to
bargain, they are obliged to participate fully and promptly in the NCMB
meetings. (Id.)
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4. Before a strike or lockout may actually be started, a strike vote or

lockout vote should be taken by secret balloting, with 24-hour prior
notice to the NCMB. The decision to declare a strike requires the secret
ballot approval of the majority of the total union membership in the
bargaining unit concerned. Similarly, a lockout needs the secret ballot
concurrence of majority of the directors or partners. (Id.)

5. The result of the strike or lockout vote should be reported to the NCMB
at least 7 days before the intended strike or lockout, subject to the
cooling off period. (Id.) This is intended to give the DOLE an
opportunity to verify whether the projected strike or lockout really
carries the imprimatur of the majority of union members or board of
directors, as the case may be. A strike or lockout held within 7-day
waiting period is plainly illegal. (Lapanday Workers Union vs. NLRC)

6. No strike or lockout may be declared on grounds involving inter-union

and intra-union disputes. (Id.)

7. No strike or lockout shall be declared without the labor organization or

the ER first having bargained collectively i.e. exhaustion of grievance
procedure before declaration of strike. (Art. 264)

8. No strike or lockout shall be declared after assumption of jurisdiction

by the President of the Secretary of Labor. (Art. 263)

9. No strike or lockout shall be declared after certification or submission

of the dispute to compulsory or voluntary arbitration, nor may a strike
or lockout be declared during the pendency of cases involving the
same grounds for the strike or lockout. (Azucena)

10. Non-observance of procedural requirement makes strike illegal.

(NFSW vs. Ovejera)

Economic and Unfair Labor Practice Strike

1. The Labor Code recognizes only two valid grounds for the
declaration of a strike. The 2 are :
a. collective bargaining deadlock; and
b. ER’s unfair labor practice.

A strike not based on any of these 2 causes is necessarily tainted with

illegality. (Azucena)

2. When does a deadlock arise? A deadlock arises when there is an

impassé which presupposes reasonable effort at good faith bargaining
which, despite noble intentions, does not conclude the agreement
between the parties. Where for instance, the ER never made any
serious efforts to respond to proposals from the union, it cannot be
maintained that a deadlock arose. (Divine Word University vs. Secretary of
Labor)

3. Legality of strike is not dependent upon the ability of management to

grant demands. If said demands cannot be granted for being unjust or
unreasonable, the only consequence should be their rejection and not
the punishment of the workers who presented them. (Caltex vs. PLO)
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Give some examples of strike having a lawful purpose.

1. Strike incident to collective bargaining. (Id.)

2. Self-defenses i.e. strike held against the formation of a company

dominated union. (Davao Free Workers vs. CIR)

3. Strike against ER’s unfair labor practice. (Zamboanga Wood Products vs.
NLRC)

4. Unfair labor practice strike in good faith, although such acts by the ER
were not found to be unfair labor practices. (Pepsi-Cola Labor Union vs.
NLRC)

5. Strike to compel recognition of and bargaining with majority union.

(Caltex Filipino Managers and Supervisors Association vs. CIR) [However, a strike
for union recognition is through a certification election. (Azucena)

Give some examples of strikes with no lawful purposes:

1. Strike due to rearrangement of office. (Reliance Surety vs. NLRC)

2. Strike due to company’s sales evaluation policy (GTE Directories vs.

Sanchez)

3. Strike to compel removal of an EE not due to violation of union security

arrangement. (Azucena)

4. Salary distortion under the Wage Rationalization Act (IBM vs. NLRC)

5. Inter-union or intra-union dispute. (Art. 263)

6. Strike to compel company to produce bank statements to show actual

financial condition of the company. What the union may only require
are up-to-date financial information normally submitted to relevant
government agencies such as balance sheets and financial statements.
(Sec. 5, Rule XIII, Book V, IRR’s)

Means and Methods

1. Even if the purpose of a strike is valid, the strike may be held invalid
where the means employed are illegal. (United Seamen’s Union of the
Philippines vs. Davao Shipowners Association) The use of violence,
intimidation, restraint or coercion in carrying out concerted activities,
which are injurious to the rights of property, or to particular individuals
make a strike illegal. (Liberal Labor Union vs. Phil. Can Co.) However, minor
disorders will not suffice to make a strike illegal (Insular Life EE’s Assn.vs.
Insular Life)

2. The strike by a union in a gasoline company was attended with

violence in 4 or 5 occasions. The strike is sought to be declared illegal
on grounds that it was attended by violence. Is this allegation tenable?

It depends on the factual circumstance of the case. If the acts of violence

are not pervasive, and the responsibility for the acts are individual, then
the strike may be considered still legal. (Shell Oil Workers Union vs. Shell)
 59

3. If some management officials were unable to leave the premises

because of a strike, may the strikers be held guilty of illegal detention?

No. The detention was not done in criminal intent. While no doubt to be
deplored, such conduct cannot be made a basis for a finding of criminal
guilt. (People vs. Barba)

Injunction

A. RULE ON INJUNCTIONS

As a general rule, labor disputes are not subject to injunction.

However, the protective force of the law will be applied when prohibited or
unlawful acts are being or about to be committed that will cause grave or
irreparable damage to the complaining party. (Azucena)

B. REQUIREMENTS OF VALID INJUNCTION

Art. 218 :
1. Unlawful acts are being committed or threatened to be committed.

2. The act, if not enjoined or if not performed forthwith, may cause grave
or irreparable damage.

3. Witnesses must be heard an opportunity for cross-examination

provided.

4. The complaint is made under oath.

5. As to each item of relief, the injury to the complainant will be greater

by its denial than to defendant by its grant.

6. Complainant has no adequate remedy at law.

7. Public officers are unwilling or unable to do their duty to adequately

protect complainant’s property.

C. TEMPORARY RESTRAINING ORDER

The Code allows the issuance of a temporary restraining order without

prior notice to other parties concerned. The issuance is predicated on
complainant’s testimony or petition under oath that unless the order is
issued without notice, substantial or irreparable injury to complainant’s
property will be unavoidable. A temporary restraining order, however,
automatically expires after 20 days. (Id.)

D. JURISDICTION TO ISSUE INJUNCTION

Lies not with the regular courts but with the Commission. (Maria Cristina
Fertilizer Plant EE’s Assn. Vs. Tandayag) However, regular courts may issue
injunction if it is to prevent strikers from preventing to lawful movement of
3rd parties. (Republic Flour Mill Workers Assn. vs. Reyes)

E. INJUNCTION IN NATIONAL INTEREST CASES

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When is a strike enjoined by the assumption of jurisdiction of the

president or the Secretary of Labor and Employment?

A strike or lockout is prohibited after assumption of jurisdiction by the

President or the Secretary of Labor :
1. in industries indispensable to the national interest; or
2. after certification or submission of the dispute to compulsory or
voluntary arbitration. (Art. 264) The Code vests the President and the
Secretary of Labor almost unlimited discretion as to what industries
may be considered indispensable to national interest. (Azucena)

E.1 Power to Assume Jurisdiction Constitutional

Art. 263 and 264 have been enacted pursuant to the police power to
the State. It is an inherent power of the State which does not need to be
expressly conferred by the Constitution. (Union of Filipro EE’s vs. Nestle)

E.2 Certification of Labor Dispute : Automatic Injunction

Such assumption of the Secretary or certification to the NLRC for

compulsory arbitration has the effect of automatically enjoining the intended
or ongoing strike or lockout as specified in the assumption or certification
order. (Azucena) Their assumption or certification order is immediately
effective even without a return-to-work order. (Union of Filipro EE’s vs. Nestle) A
strike that is undertaken despite the issuance by the Secretary of Labor of an
assumption or certification order becomes a prohibited activity and thus
illegal. (Zamboanga Wood Products vs. NLRC) Not only union officers but also union
members who defy return-to-work order are subject to dismissal for
participation in an illegal act. (St. Scholastica’s College vs. Torres)

E.3 Effect of Certification for Compulsory Arbitration

The certification for compulsory arbitration overrides under unresolved

proceedings before the NLRC. Proceedings in the injunction and unfair labor
practice cases filed by the ER necessarily have to be suspended to await the
outcome of the compulsory arbitration proceedings. (Bagong Bayan Realty vs.
Ople)

E.4 Incidental Issues

May the Secretary of Labor, in the exercise of his jurisdiction under

Article 263 (g) takes cognizance which is merely incidental to the labor
dispute over which he has assumed jurisdiction? Yes, provided said issue in
involved in the labor dispute itself or otherwise submitted to him for
resolution. (St. Scholastica’s College vs. Torres)

Agreement of the Parties

1. A no strike prohibition in a CBA is applicable only to economic strikes.

An unfair labor practice strike is not covered and workers may go on
strike based on the unfair labor practice despite the no-strike provision.
(Master Iron Labor Union vs. NLRC)

2. Is no-strike clause binding on the newly certified bargaining

agent? No. This is a personal undertaking of the old certified
 61

bargaining agent which does not bind the newly certified bargaining
agent. (Benguet Consolidated vs. BCI EE’s Union)

3. There is no violation by the union of the no-strike clause if the work

stoppage was not initiated or supported by the union. (Azucena)
4. About 1,400 EE’s of a company staged a mass walk-out. The strike was
staged without prior notice and in violation of the no-strike clause. It is
not however disputed that the company did not pay the salaries of the
EE’s for 2 months. In the exercise of his power of compulsory
arbitration, may the Secretary of Labor declare the strike illegal?

Even on the assumption that the illegality of the strike is predicated on its
violation of the lack of notice of strike and the no-strike clause, still the
automatic finding of the illegality of strike finds no authoritative support in
the light of the attending circumstances. (Bacus vs. Ople)

9.6 Employment of Strike breakers and Role of Peace Officers during

Strikes

Art. 264 :
1. No ER shall use or employ any strike-breaker, nor shall any person be
employed as a strike-breaker.

2. No public official or EE including officers and personnel of the AFP or

the PNP, or armed person, shall bring in, introduce or escort any
individual who seeks to replace strikers in entering or leaving the
premises of a strike are, or work in place of strikers. The police force
shall keep out of the picket lines unless actual violence or other
criminal acts occur.

9.7 Improved Offer Balloting

What is meant by improved or reduced offer balloting?

1. Strike – In an effort to settle a strike, the DOLE shall conduct a

referendum by secret balloting on the improved offer of the ER on or
before the 30th day of the strike. When at least a majority of union
members vote to accept the improved offer, the striking workers shall
immediately return to work and the ER shall thereupon readmit them
upon signing of the agreement.

2. Lockout – In case of a lockout, the DOLE shall also conduct a

referendum by secret balloting on the reduced offer of the union on or
before the 30th day of the lockout. When at least a majority of the
board of directors or trustees or the partners holding the controlling
interest in the case of partnership vote to accept the reduced offer, the
workers shall immediately return to work and the ER shall thereupon
readmit them upon signing of the agreement. (Art. 265)

9.8 Picketing, Slowdown and other Concerted Activities

A. DEFINITION
Define picketing – Walking or patrolling in the vicinity of a place of
business involved in a labor dispute and, by word of mouth, banner or
placard, undertaking to inform the public concerning the dispute. Picketing
includes stationing persons at the site of the labor dispute for the purpose of
 62

exercising coercion or intimidation on other. However, the requirement of the

law is that the picket must be a moving picket. (Azucena)

B. PICKETING AND LIBEL LAWS

The mere fact that the language employed by the picketers is far from
being courteous and polite does not give rise to a cause for libel and
damages. (PCIB vs. Philnabank EE’s Assn.)

C. ER-EE RELATIONSHIP

Absence of an ER-EE relationship does not make picketing illegal. (De

Leon vs. NLU)

D. RESTRICTIONS

1. Art. 264 : No person engaged in picketing shall commit any act of

violence, coercion or intimidation or obstruct the free ingress to or
egress from the ER’s premises for lawful purposes, or obstruct public
thoroughfares.

2. A picketing labor union has no right to prevent EE’s of another

company from getting in and out of its rented premises, otherwise it
will be held liable for damages against an innocent by-stander.
(Liwayway vs. Permanent Concrete Workers Union)

3. Picketing as a concerted activity is subject to the same limitations as

strike, particularly as to lawful purpose and lawful means. Like the
freedom of expression in general, it has limits. Thus, to the extent that
it is an instrument of coercion rather than of persuasion, it cannot
rightfully be entitled to the protection associated with free speech.
(Security Bank EE’s Union vs. Security Bank)

E. PROHIBITED ACTIVITIES

Art. 264 : No person shall obstruct, impede or interfere with by force,

violence, coercion, threats or intimidation any peaceful picketing by EE’s
during any labor controversy or in the exercise of the right of self-
organization or collective bargaining, or shall aid or abet such obstruction or
interference.

F. POWER OF COURTS TO CONFINE PICKETING

While peaceful picketing is entitled to protection as an exercise of free

speech, courts are not without power to confine or localize the sphere of
communication or the demonstration to the parties to the labor dispute,
including those with related interest, and to insulate establishments or
persons with no industrial connection or having interest totally foreign to the
context of the dispute. (PAFLU vs. Cloribel)

Slowdown

1. Define slowdown. Method by which one’s EE’s, without seeking a

complete stoppage of work, retard production and distribution in an
effort to compel compliance by the ER with the labor demands made
upon by him. (Azucena)
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2. Slowdown is considered inherently illicit and unjustifiable because

while the EE’s continue to work and remain at their positions and
accept wages from them, they at the same time select what part of
their allocated task they care to perform of their own volitions or refuse
openly or secretly to the ER’s damage to the other work. (IBM vs. NLRC)

Boycott

1. Define boycott : It is the concerted refusal to patronize an ER’s goods

and services and to persuade others to a like refusal. (Id.)

2. Is a boycott lawful? EE’s may lawfully exert economic pressure on

their ER by means of a boycott, provided they act peaceably and
honestly. (Alcantara)

9.9 Consequences of Concerted Actions

Strikers Retention or Loss of Employment

Does participation in a strike mean loss of employment for the

worker?

A mere participation of a worker in a lawful strike shall not constitute

sufficient ground for termination of his employment, even if a replacement
had been hired by the ER during such lawful strike. (Art. 264) However, if
the strike is illegal.:
1. The union officer who knowingly participated in an illegal strike; and
2. Any worker or union officer who knowingly participates in the
commission of illegal acts during a strike may be declared to have lost
their employment status.

An ordinary striking worker cannot be terminated for mere

participation in an illegal strike. There must be proof that he
committed illegal acts during a strike. (INPORT vs. NLRC)

Who Declares Loss of Employment Status

The law grants the ER the option of declaring loss of employment

status. (Id.)

No Financial Assistance to Dismissed Strikers

Financial assistance is not required to be given to a worker who

participated in an illegal strike. (Chua vs. NLRC)

Strike on Good Faith Belief that Company Committed Unfair Labor

Practice

Strikers who conducted an illegal strike on the good-faith belief that

the company had committed unfair labor practice, which turns out to be
false, do not forfeit their employment. They are entitled to reinstatement.
(Ferrer vs. CIR)

Strike not Marked with Good Faith

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Strikers who conducted a strike which is illegal and not marked with
good faith forfeit their employment. (Reliance Surety vs. NLRC)
Application of the Pari-Delicto Rule

Is the pari-delicto rule applicable in strikes and lockouts? Yes.

When the parties are in pari delicto – the EE’s having staged an illegal strike
and the ER having declared an illegal lockout – such situation warrants the
restoration of the status quo ante and brining back the parties to their
respective positions before the illegal strike and illegal lockout through
reinstatement, without backwages, of the dismisses EE’s. (Philippine Inter-
Fashion vs. NLRC)

Backwages

1. In an economic strike, the strikers are not entitled to backwages on the

principle that a “fair day’s wage” accrues only for a “fair day’s labor.”
(SMB vs. NLU) For an unfair labor practice strike, the right of the
workers to receive backpay depends on whether they are voluntary or
involuntary strikers. If they are involuntary strikers, they are entitled to
backpay. (Macleod vs. Progressive Federation of Labor) However, when they
are voluntary strikers, that is, they were not discriminatorily dismissed
by the ER, then they are generally not entitled to backpay, except
when they voluntary offer to return to work and the ER refuses to
readmit them. (Cromwell EE’s Assn. vs. CIR)

2. Are EE’s who are unable to work by reason of a lockout validly declared
by the ER entitled to wages corresponding to the period of the lockout?

No. The refusal of the ER to furnish work is unlawful. And since the EE’s
did not render any service, they should not get paid; this in accordance
with the “no wok no pay” rule. (Alcantara)

ER’s Right to Hire Replacement during Strike

Discuss the principles governing the hiring of worker replacements

during a strike? During the pendency of an economic strike, the ER may
hire replacements on a permanent basis and is not bound to discharge such
permanent replacements in the event that the strikers decide to resume
their employment. (Consolidated Labor Assn. vs. Marsman) On the other hand,
while replacements may also be hired by the ER to take the places left
vacant by the EE’s engaged in unfair labor practice strike, such replacements
are not permanent and the ER under a duty to dismiss them as soon as the
strikers request reinstatement in their previous position. (Insular Life EE’s Assn.
vs. Insular Life)

Damages

Union officers may not be vicariously held liable for illegal act of
strikers. The rule of vicarious liability no longer applies. (Benguet Consolidated vs.
BCI EE’s Assn.)

Section 10. Remedies

 What are the different remedies available in labor disputes?

1. Grievance procedure – In adjustment of complaint following steps
prescribed in the CBA or company policy.
 65

2. Conciliation – Process where a disinterested 3 rd party meets with

management and labor, at their request or otherwise, during a labor
dispute or in collective bargaining conferences, and by cooling
tempers, aids in reaching an agreement.

3. Mediation – A 3rd party studies each side of the dispute then makes
proposal for the disputants to consider, but a mediator cannot render
an award.

4. Enforcement or compliance order – An act of the Secretary of Labor

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

5. Certification of bargaining representatives – Determination of

which union shall represent EE’s in collective bargaining. This is
handled by “Med-Arbiters” of DOLE.

6. Arbitration – The submission of a dispute to an impartial

determination on the basis of impartial evidence and arguments of the
parties.

7. Assumption of jurisdiction – An authority vested by law to the

Secretary of Labor or the President to decide a dispute causing or likely
to cause a strike or lockout in an industry indispensable to the national
interest.

8. Certification to NLRC – An action of the Secretary of Labor

empowering the NLRC to compulsorily arbitrate a dispute causing or
likely to cause a strike or lockout in an industry indispensable to the
national interest.

9. Injunction – An extraordinary remedy and is not favored in labor law.

As a general law, an injunction or a restraining order to prevent or stop
the doing of an act is avoided in resolving a labor dispute because the
state policy and aim is to encourage the parties to use the non-judicial
processes of negotiation and compromise, mediation and arbitration.

10. Judicial action – Complaint with regular court in cases falling

under its jurisdiction i.e. criminal case of unfair labor practice.

11. Appeal – Process by which an order, decision or award is

elevated to a higher authority, on specified grounds, so that the order,
decision or award may be modified or set aside and a new one issued.

12. Judicial review – No law allows appeal from decision of the

Secretary of Labor or of the NLRC, or of a voluntary arbitrator. In these
cases, the “special civil action” of certiorari, prohibition and mandamus
may be lodged with the Supreme Court.

13. Compromise settlement – In any stage of these settlement

processes, the labor dispute may be resolved by the parties through a
compromise agreement, provided the agreement is freely entered into
and is not contrary to law, moral or public policy. (Azucena)
 66

 What cases fall under the exclusive and original jurisdiction of labor
arbiters? Labor arbiters shall have exclusive and original
jurisdiction to hear and decide within 30 working days after
submission of the case by the parties for decision without
extension the following cases involving all workers, whether
agricultural or non-agricultural :
1. Unfair labor practices.
2. Termination disputes.
3. If accompanied with a claim for reinstatement, those cases that
workers may file involving wages, rates of pay, hours of work and other
terms and conditions of employment.
4. Claims for actual, moral and exemplary and other forms of damages
arising form the ER-EE relations.
5. Cases arising from any violation of Art. 264 of this Code, including
questions involving the legality of strikes and lockouts.
6. Except claims for EE’s compensation, social security, medicare and
maternity benefits, all other claims arising from ER-EE relations,
including those of persons in domestic or household service, involving
an amount exceeding P5,000.00 whether or not accompanied with a
claim for reinstatement.

 Does service of notice of hearing upon respondent confer

jurisdiction of the former? No. Notices of hearings are not
summonses. In the absence of service of summons or a valid waiver
thereof, the hearings and judgment rendered by the Labor Arbiter are
null and void. (Larkins vs. NLRC)

 Do labor arbiters have jurisdiction to hear and decide claims

for damages arising from unfair labor practices? Yes. The civil
aspects of all cases involving unfair labor practices, which may include
claims for actual, moral, exemplary and other forms of damages,
attorney’s fees and other affirmative reliefs, shall be under the
jurisdiction of the labor arbiters. (Art. 247)

 Does the Regional Director of the DOLE have jurisdiction to

hear and decide money claims of workers? Yes. He is empowered
through summary procedure, to hear money claims and benefits,
including legal interest, owing to a househelper provided the complaint
does not include a claim for reinstatement and the aggregate money
claims of each EE or househelper does not exceed. (Art. 129)

 How are disputes arising from wage distortions settled? When

there is a CBA, through the grievance procedure and, if it remains
unresolved, through voluntary arbitration. When there is no CBA, the
dispute shall be settled through the NCMB and, if it remains unresolved
after 10 calendar days of conciliation, shall be referred to the
appropriate branch of the NLRC. (Art. 124)

 Cases not falling under the jurisdiction of labor arbiters:

1. Civil action to collect sum of money owed by the EE to the ER. (Georg
Gortjahm vs. Isnani)

2. Action for damages for breach of contractual stipulations. (Dai-Ichi

Electronis vs. Villarama)
 67

3. Tortious acts by the president of a company against EE’s. (Medina vs.

Bartolome)

4. Replevin case to recover fishing vessel from striking crew members.

(Basaya vs. Militante)

5. Civil case to annul the public auction sale of several properties of the
ER used to pay liabilities to the EE’s on the ground that the properties
were owned by 3rd parties. (Manliguez vs. CA) In contrast to the Pucan vs.
Bengzon case, what was being questioned was not the writ of executions
issued by the DOLE but the ownership over the property in question.
(Alcantara)

6. Suit filed by an independent contractor. (Cabe vs. Tumang)

7. Intra-company disputes. (Dy vs. NLRC)

 Cases falling under the jurisdiction of the labor arbiters:

1. Legality of strikes and lockouts. (Samahang Manggagawa ng Liberty
Commercial Center vs. Pimentel)

2. Suit for damages from picketing that accompany a strike. (NFL vs.
Eisma)

3. Complaint arising from implementation of union security clause. (Sanyo

Philippines Workers Union vs. Canizares)

 May an illegally dismissed EE still file a civil case for tort

against the ER if he was already awarded damages in the
illegal dismissal case that he filed with the labor arbiter?

No. The judgment of the labor arbiter granting the illegally dismissed EE
separated pay operated as a bar to his subsequent action for a tort
against the ER if he was already awarded damages in the illegally
dismissed EE separation pay operated as a bar to his subsequent action
for the recovery of damages before the regular court under the doctrine of
res judicata. (Primero vs. IAC)

 In his complaint with the labor arbiter for illegal dismissal, A

sought payment for holiday pay and the 13th month pay and
holiday pay even if he did not prove that he was paid these
benefits?

Yes. The claimant’s allegation which need not be supported by evidence

unless it is an essential part of the cause of action. The burden of proving
that payment of said benefits have been made rests with the ER. (Seaborne
Carriers vs. NLRC)

 May the labor arbiter increase the original award it made after
its decision was rendered final and executory by a dismissal of
the NLRC of an appeal with respect to the said case?

Yes. The backwages merely correspond to the period of dismissal when

the case was originally heard by the labor arbiter. Recomputation is
necessary to arrive at a just and proper determination of the monetary
awards. (Industrial Timber vs. NLRC)
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 May the labor arbiter adjudicate on claims not alleged in the

complaint?

Yes, provided the claims are made in the complaint’s position paper. But
claims for wage differentials are not made in the complaint or in the
position paper cannot be passed upon. (DBP vs. NLRC)

 May the labor arbiter decide the case on the basis of a

supplemental position paper submitted after the parties have
filed their position papers and agreed to consider the case
submitted for the decision?

No. After submitting the case for decision, the parties shall not be allowed
to allege facts not referred to and any cause of action not included in the
complaint or position papers, affidavits and other documents. (Manebo vs.
NLRC)

 Does the labor arbiter have jurisdiction over a claim of an EE of

the SEAFDEC-AQD an international organization?

No. Being an international organization SEAFDEC-AQD enjoys functional

independence and freedom from control of the state in whose territory its
office is located. (SEAFDEC-AQD vs. NLRC)

 How about JUSMAG? No. The act of hiring cannot be considered a

waiver of the foreign state’s immunity from suit. (JUSMAG vs. NLRC)

 Does the Med-Arbiter have jurisdiction over inter-union

conflicts? Yes. The decision of the Med-Arbiter is appealable to the
Secretary of Labor. (Pepsi Cola Sales and Advertising Union vs. Secretary of
Labor)

 May a legally dismissed EE be entitled to receive moral and

exemplary damages? Yes, provided the dismissal is effected in an
anti-social and oppressive manner. (Quisaba vs. Sta. Ines Veneer and Plywood)

 What matters falls under the exclusive and original jurisdiction

of voluntary arbitrators provided for in a CBA?
Unresolved grievances arising from the:
1. Interpretation or implementation of the CBA and those arising
from the interpretation of enforcement of company personnel
policies;

2. Interpretation and enforcement of company personnel policies;

and

3. All other disputes including unfair labor practices and bargaining

deadlocks submitted to them by agreement of the parties. (Art.
262)

 Within what period should a complaint for unfair labor

practice, illegal dismissal and money claims be filed with the
labor arbiters?

1. Unfair labor practice – 1 year from accrual thereof (Art. 290)

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2. Illegal dismissal – 4 years from accrual thereof (Art. 1146, NCC)

3. Money claims – 3 years form the time the cause of actions accrues
(Art. 291)
 Give the effect of the pendency of a money claim before the
labor arbiter on criminal and civil actions arising from or based
on the same cause of action?

Money claims shall be filed independently of the criminal action that may
be instituted in the proper courts.

Pending the final determination of the merits of the money claims, no

civil action arising from the same cause of action shall be filed with any
court. (Art. 292)

 Are the technical rules of evidence followed in proceedings

before labor arbiters? No. (Art. 221)

 May non-lawyers appear before labor arbiters? Non lawyers may

appear before labor arbiters only if they represent themselves or their
organizations or members thereof. (Art. 222)

 What are the grounds so that decisions of labor arbiters are

appealable?

Decisions of labor arbiters are appealable within 10 calendar days to the

NLRC on the following grounds:
1. If there is prima facie evidence of abuse of discretion on the
part of the labor arbiter.

2. If the decision, order or award was secured through fraud or

coercion, including graft and corruption.

3. If made purely on questions of law.

4. If serious errors in the findings of facts are raised which would

cause grave or irreparable damage or injury to the appellant.
(Art. 223)

 How is appeal perfected? Filing by the appellant with the labor

arbiter his memorandum of appeal, copy furnished the appellee, and
the payment of the appeal within 10 calendar days. (Vir-Jen Shipping vs.
NLRC)

 Is order of reinstatement of a labor arbiter stayed by an

appeal? Yes, for any information or date concerning any matter or
question relative to the object of the investigation. (Art. 219)

 May the NLRC order the reinstatement of workers who did not
appeal from a decision of the labor arbiter ordering payment of
separation pay in lieu of reinstatements? No. An appellee who has
not himself appealed cannot obtained from the appellate court below.
(SMI Fish Industries vs. NLRC)
 70

 Is the decision of the NLRC appealable to the Secretary of

Labor? No. Decisions of the NLRC before the Supreme Court by means
of a petition for certiorari. (Alcantara)

 May the NLRC consider evidence submitted for the first time on
appeal? Yes. (Bristol Laboratories vs. NLRC)

 Does the NLRC exercise any original jurisdiction? Yes. In cases of

labor disputes certified to it by the Secretary of Labor for compulsory
arbitration and it can also entertain positions for injunction. (Id.)

 Is PD 1508, the Katarungang Pambarangay Law, applicable to

labor cases? No. (Montoya vs. Escayo)

 Give the scope of visitorial powers of the Secretary of Labor

and Employment and regional directors under Art. 128 of the
Labor Code?

The visitorial power provided for under Art. 128 is confined to checking
compliance with labor standard laws, then the regional director must
order the necessary rectifications. However, this does not include
adjudication of money claims clearly within the ambit of the labor
arbiter’s authority under Art. 217 of the Labor Code. (Ong vs. Parel)

 If a party submits to the jurisdiction of a labor tribunal and

obtains an unfavorable judgment, can later on question the
jurisdiction of the said tribunal?

No. When a party has voluntarily submitted to the jurisdiction of a court

tribunal, he cannot later on, if he gets an unfavorable judgment adopt an
inconsistent posture and attack the latter’s jurisdiction. (Tijam vs.
Sibonghanoy)

 Is the reinstatement aspect of the decision of the labor arbiter

self-executory even pending appeal?

No. There must be a writ of execution which may be issued by the Labor
Arbiter motu proprio or on motion of an interested party. (Maranaw Hotel vs.
NLRC)

 Do courts or administrative bodies have the power to set or fix

rates of pay, wages, hours of work and other terms and
conditions of employment?

As a rule, courts and administrative bodies cannot fix the terms and
conditions of employment because what is being promoted is collective
bargaining. (Alcantara)

Section 11. Choice Questions on Public Sector EE’s

1. J, a supervisor of Casino Filipino was dismissed by PAGCOR due

to loss of confidence. He filed a case for damages with the RTC.
PAGCOR filed a motion to dismiss on ground of lack of
jurisdiction of the RTC to hear thecase. Is the ground valid?
 71

Yes. The case involving whether J was illegally dismissed falls under the
jurisdiction of the Merits Systems Protection Board and the Civil Service
Commission. The claim for damages was merely incidental to the illegal
dismissal. (PAGCOR vs. CA)

2. Is the case not cognizable by the labor arbiter? No. PAGCOR is a

GOCC with an original charter. (Id.)
3. What is GOCC with original charter? It is a GOCC with a legislative
charter i.e. PAGCOR and DBP. (Alcantara)

4. May EE’s of the government go on strike and may the latter

declare a lockout? No. The terms and conditions of government EE’s
are fixed by law and thus they are prohibited from using the normal
instruments available to private sector EE’s. However, under Sec. 13 of
EO 180, the terms and conditions or improvements thereof not fixed by
law may be the subject of negotiations between duly recognized EE’s
organizations and appropriate government authorities. (Id.)

5. Assuming that EE’s of GOCC’s with original charters cannot go

on strike, may they nevertheless from unions and petition for
certification election?

Yes. Although they are covered by civil service laws, they are guaranteed
the right to self-organization. Under EO 180, where there are two or more
duly registered EE’s organizations in the appropriate bargaining unit, the
BLR shall, upon petition order the conduct of certification election and
certify the winner as the exclusive representative of the rank-and-file EE’s
in the said organizational unit. (TUPAS vs. NHA)

6. Some 800 public school teachers did not conduct their classes
and instead converged at Liwasang Bonifacio to protest the
non-payment of their benefits. Is the mass action lawful? No.
EE’s in the public service do not have the right to strike. (MPSTA vs.
Laguio)

7. The NHC is 100% government-owned organized in accordance

with EO 399, the Uniform Charter of Government Corporations.
Are its EE’s covered by the provisions of the Labor Code?

Yes. The NHC is incorporated under and pursuant to a general legislation

and not by an act of Congress or by special law. (TUPAS vs. NHC)

8. The Public Sector Management Council has jurisdiction to hear charges

of unfair labor practice filed by a government EE against their ER. In
deciding the unfair labor practice charge, the PSLMC may also rule on
the complainant’s dismissal if the two issues are unavoidably linked.
(PLM vs. CSC)