LABOR RELATIONS 2007 Edition

NATIONAL LABOR RELATIONS COMMISSION Art. 218: The Commission shall have the power and authority: (a) To promulgate rules and regulations governing the hearing and dispositio n of cases before it and its regional branches, as well as those pertaining to i ts internal functions and such rules and regulations as may be necessary to carr y out the purposes of this Code; (b) To administer oaths, summon the parties to a controversy, issue subpoena s requiring the attendance and testimony of witnesses or the production of such books, papers, contracts, records, statements of accounts, agreements, and other s as may be material to a just determination of the matter under investigation, and to testify in any investigation or hearing conducted in pursuance of this Co de; (c) To conduct investigation for the determination of a question, matter or controversy within its jurisdiction, proceed to hear and determine the disputes in the absence of any party thereto who has been summoned or served with notice to appear, adjourn its hearings to any time and place, refer technical matters o r accounts to an expert and to accept his report as evidence after hearing of th e parties upon due notice, direct parties to be joined in or excluded from the p roceedings, correct, amend, or waive any error, defect or irregularity, whether in substance or in form, give all such directions as it may deem necessary or ex pedient in the determination of the dispute before it, and dismiss any matter or refrain from further hearing or from determining the dispute or part thereof, where it is trivial or where further proceedings by the Commission are not neces sary or desirable; and (d) To hold any person in contempt direct or indirectly and impose appropria te penalties therefor in accordance with law. A person guilty of misbehavior in the presence of or so near the Chairman or any member of the Commission or any Labor Arbiter as to obstruct or interrupt the p roceedings before the same, including disrespect toward said officials, offensiv e personalities toward others, or refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required to do so, may summarily adjudged in direct contempt by said officials and punished by fine no t exceeding five hundred pesos (P500) or imprisonment not exceeding five (5) day s, or both if it be the Commission or a member thereof, or by a fine not exceedi ng one hundred pesos (P100) or imprisonment not exceeding one (1) day, or both i f it be a Labor Arbiter. The person adjudged in direct contempt by a Labor Arbiter may appeal to the Comm ission and the execution of the judgment shall be suspended pending the resoluti on of the appeal upon the filing of subject person of a bond on condition that h e will abide by and perform the judgment of the Commission should the appeal be decided against him. Judgment of the Commission on direct contempt is immediatel y executory and unappealable. Indirect contempt shall be dealt with by the Commi ssion or Labor Arbiter in the manner prescribed under Rule 71 of the Revised Rul es of Court; and (e) (BAR) To enjoin or restrain any actual or threatened commission of any o r all prohibited or unlawful acts or to require the performance of a particular act in any labor dispute which, if not restrained or performed forthwith, may ca use grave or irreparable damage to any party: Provided, That no temporary or per manent injunction in any case involving or growing out of a labor dispute as def ined in this Code shall be issued except after hearing the testimony of witnesse s, with opportunity for cross-examination, in support of the allegations of a co mplaint made under oath, and testimony in opposition thereto, if offered, and on ly after a finding of fact by the Commission, to the effect (INJUNCTION requirem

ents): (1) That prohibited or unlawful acts have been threatened and will be commit ted and will be continued unless restrained, or have been committed and will be continued unless restrained, but no injunction or temporary restraining order sh all be issued on account of any threat, prohibited or unlawful act, except again st the person or persons, association or organization making the threat or commi tting the prohibited or unlawful act or actually authorizing or ratifying the sa me after actual knowledge thereof; (2) That substantial and irreparable injury to complainant s property will fol low; (3) That, as to each item of relief to be granted, greater injury will be in flicted upon complainant by the denial of relief than will be inflicted upon def endants by the granting of relief; (4) That complainant has no adequate remedy at law; and (5) That the public officers charged with the duty to protect complainant s pr operty are unable or unwilling to furnish adequate protection. Such hearing shall be held after due and personal notice thereof has been served , in such manner as the Commission shall direct, to all known persons against wh om relief is sought, and also to the Chief Executive and other public officials of the province or city within which the unlawful acts have been threatened or c ommitted charged with the duty to protect complainant s property: Prescriptive Periods(2006 notes) ULP MONEY CLAIMS OFFENSES UNDER LC ILLEGAL DISMISSAL 1 year 3 3 4

TEMPORARY RESTRAINING ORDER Requirements: 1.)complainant shall also allege that, unless a temporary restraining order shal l be issued without notice, a substantial and irreparable injury to complainant s property will be unavoidable 2.)such a temporary restraining order may be issued upon testimony under oath, s ufficient, if sustained, to justify the Commission in issuing a temporary injunc tion upon hearing after notice. 3.)Such a temporary restraining order shall be effective for no longer than twen ty (20) days and shall become void at the expiration of said twenty (20) days. 4.)No such temporary restraining order or temporary injunction shall be issued except on condition that complainant shall first file an undertaking with adequa te security in an amount to be fixed by the Commission sufficient to recompense those enjoined for any loss, expense or damage caused by the improvident or erro neous issuance of such order or injunction, including all reasonable costs, toge ther with a reasonable attorney s fee, and expense of defense against the order or against the granting of any injunctive relief sought in the same proceedin and subsequently denied by the Commission. The undertaking herein mentioned shall be understood to constitute an agreement entered into by the complainant and the surety upon which an order may be render ed in the same suit or proceeding against said complainant and surety, upon a he aring to assess damages, of which hearing complainant and surety shall have reas onable notice, the said complainant and surety submitting themselves to the juri sdiction of the Commission for that purpose. But nothing herein contained shall deprive any party having a claim or cause of action under or upon such undertaki ng from electing to pursue his ordinary remedy by suit at law or in equity: Prov ided, further, That the reception of evidence for the application of a writ of i njunction may be delegated by the Commission to any of its Labor Arbiters who sh

all conduct such hearings in such places as he may determine to be accessible to the parties and their witnesses and shall submit thereafter his recommendation to the Commission. (As amended by RA 6715) Art. 219. Ocular inspection. The Chairman, any Commissioner, Labor Arbiter or their duly authorized representatives may at any time during working hours c onduct an ocular inspection on any establishment, building, ship or vessel, plac e or premises, including any work, material, implement, machinery, appliance or any object therein, and ask any employee, laborer or any person as the case may be for any information or data concerning any matter or question relative to the object of the investigation. Art. 220. Compulsory Arbitrators. The Commission or any Labor Arbiter shal l have the power to seek the assistance of other government officials and qualif ied private citizens to act as compulsory arbitrators on cases referred to them and to fix and assess the fees of such compulsory arbitrators, taking into accou nt the nature of the case, the time consumed in hearing of the case, the profess ional standing of the arbitrators, the financial capacity of the parties, and th e fees provided in the Rules of Court. (Repealed by Sec. 16, BP Blg. 130). Art. 221. Technical rules not binding and prior resort to amicable settlem ent. In any proceeding before the Commission or any of the Labor Arbiters, the r ules of evidence prevailing in courts of law or equity shall not be controlling, and it is the spirit and intention of this Code that the Commission and its mem bers and the Labor Arbiters shall use every and all reasonable means to ascertai n the facts in each case speedily and objectively, without regard to technicalit ies of law or procedure, all in the interest of due process. In any proceeding b efore the Commission or any Labor Arbiter, the parties may be represented by leg al counsel but it shall be the duty of the Chairman, any Presiding Commissioner or Commissioner or any Labor Arbiter to exercise complete control of the proceed ings at all stages. Any provision of law to the contrary notwithstanding, the Labor Arbiter shall ex ert all efforts towards the amicable settlement of a labor dispute within his ju risdiction on or before the first hearing. The same rule shall apply to the Comm ission in the exercise of its original jurisdiction. (As amended by RA 6715) LECTURE: Original Jurisdiction of y the Sec.of Labor. NLRC applies to National Interest certified to it b

2006 notes:as such ,NLRC only has exclusive jurisdiction on CERTIFIED cases (no more,no less) and such dispute (like a strike) must be certified by the Secretar y to the NLRC and it can also entertain positions for injunctions. It gains jurisdiction over questions submitted to it even over issues that fall in labor arbiter s exclusive jurisdiction. It also applies to petitions for injunction or TRO under 218(e).TRO takes eff ect upon issuance & not upon receipt. 254 also states that no temporary or permanent injunction or restraining orde r shall be issued by any court except those provided in 218 and 264. As such, where NLRC did not follow and observe the procedure outlined & provid ed for in 218(e), the said writ is illegal and void,even if Court had jurisdic tion to issue it. Reception of evidence for application of a writ of injunction may be deleg

ated by the commission to any of its Labor Arbiters. Aside from that NLRC ar e not bound by the technical rules of procedure in the adjudication of case s

Art. 213. National Labor Relations Commission. There shall be a National L abor Relations Commission which shall be attached to the Department of Labor and Employment for program and policy coordination only, composed of a Chairman and fourteen (14) members. Five (5) members each shall be chosen from among the nominees of the workers and employers organizations, respectively. The Chairman and the four (4) remaining members shall come from the public sector, with the latter to be chosen from amo ng the recommendees of the Secretary of Labor and Employment. Upon assumption into office, the members nominated by the workers and employers organizations shall divest themselves of any affiliation with or interest in the federation or association to which they belong. The Commission may sit en banc or in five (5) divisions, each composed of three (3) members. The Commission shall sit en banc only for purposes of promulgating rules and regulations governing the hearing and disposition of cases before any of its divisions and regional branches and formulating policies affecting its ad ministration and operations. The Commission shall exercise its adjudicatory and all other powers, functions, and duties through its divisions. Of the five (5) d ivisions, the first and second divisions shall handle cases coming from the Nati onal Capital Region and the third, fourth and fifth divisions, cases from other parts of Luzon, from the Visayas and Mindanao, respectively. The divisions of th e Commission shall have exclusive appellate jurisdiction over cases within their respective territorial jurisdiction. The concurrence of two (2) Commissioners of a division shall be necessary for th e pronouncement of a judgment or resolution. Whenever the required membership in a division is not complete and the concurrence of two (2) Commissioners to arri ve at a judgment or resolution cannot be obtained, the Chairman shall designate such number of additional Commissioners from the other divisions as may be neces sary. The conclusions of a division on any case submitted to it for decision shall be reached in consultation before the case is assigned to a member for the writing of the opinion. It shall be mandatory for the division to meet for purposes of t he consultation ordained therein. A certification to this effect signed by the P residing Commissioner of the division shall be issued, and a copy thereof attach ed to the record of the case and served upon the parties. The Chairman shall be the Presiding Commissioner of the first division, and the four (4) other members from the public sector shall be the Presiding Commissioners of the second, thir d, fourth and fifth divisions, respectively. In case of the effective absence or incapacity of the Chairman, the Presiding Commissioner of the second decision s hall be the Acting Chairman. The Chairman, aided by the Executive Clerk of the Commission, shall have adminis trative supervision over the Commission and its regional branches and all its pe rsonnel, including the Executive Labor Arbiters and Labor Arbiters. The Commission, when sitting en banc, shall be assisted by the same Executive Cl erk, and, when acting thru its divisions, by said Executive Clerk for its first division and four (4) other Deputy Executive Clerks for the second, third, fourt h and fifth divisions, respectively, in the performance of such similar or equiv alent functions and duties as are discharged by the Clerk of Court and Deputy Cl erks of Court of the Court of Appeals. Execution of decision (2006 revision):

1.Decision of Med.arbiter & reg.director automatically stayed pending appeal while decision of Bureau(appellate) shall be immediately executory upon issu ance of final judgement 2. Decision of Bureau in exercise of its orig jurisdiction shall automatica lly be stayed pending appeal and decision of Sec.(appellate) be immediately executory upon issuance of final judgement. 2006 notes:Failure to give copy of appeal to Adverse Party w/in 10 days is not fatal if latter is not prejudice by delay. 2006 notes:Mere notice of appeal w/o complying w/ other requisites shall not stop running of period. 2006 notes:Receipt of appeal is complete either upon actual receipt of addresse e or at end of 5 days (if does not claim w/in 5 days from 1st notice of postm aster) --- there s no motion or request for extension of pd w/c to perfect an ap peal shall be allowed. -CBA (termination from a union)- Bureau of Labor Rel.,but if they EE-ER, then , NLRC -Intra-Corporate Affairs RTC (not SEC) 2005 Revision

-Water District- Intra-corporate(LWUA), if employees (CSC) and if customers(RTC no t SEC) Prohibited pleadings and Motions are (2006 Revision): -motion to dismiss complaint, except if lack of jurisdiction over subject matter ,improper venue,res judicata,prescription and forum shopping -bill of particulars -new trial/reconsideration of judgment of labor arbiter -petition for relief from judgment when filed w/ Labor Arbiter -certiorari, mandamus, or prohibition -motion to declare respondent on default 2006 NOTES: Compromise settlement In any stage of these settlement processes(kah it nasa supreme court na), a labor dispute in LA,BLR ,POEA, Regional Director or in MedArbiter may be resolved by the parties through a compromise agreement, pr ovided the agreement is freely entered into and is not contrary to law, moral or public policy. 2006 NOTES: NLRC, Office of the Secretary, BLR and Voluntary Arbitrators acting in their appellate jurisdiction, the decision of such is appeallable to the CA t hen to the Supreme Court. 2006 notes: All the cases may be consolidated with Secretary or NLRC, but once s uch case reached the CA, it cannot be consolidated anymore. LABOR ARBITER:. (Decision is appealable to the NLRC) (a)the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by th e parties for decision without extension, even in the absence of stenographic no tes, the following cases involving all workers, whether agricultural or non-agri cultural: (1) Unfair labor practice cases; (2) Termination disputes;

(3) enforcement of labor standards with claim exceeding P5000 per individual whether or not accompanied with claim for reinstatement; (4) Claims for actual, moral, exemplary and other forms of damages arising f rom the employer-employee relations 2006 notes: The Labor Arbiter has exclusive and original jurisdiction in termina tion or illegal dismissal cases. He will first determine whether an ER-EE relat ionship exist, then ,he will determine whether the employee was terminated for a just cause or as otherwise authorized by the labor code. SMC v NLRC: the Supreme court ruled that it did not arise from er-ee relations hip since it is an innominate contract ( I give so that you may give ) as such it is under regular courts. In Pepsi Cola v NLRC: regular courts has no jurisdiction even if it is an innomi nate contracts since the main action is termination ,then it is a labor dispute which arose out of er-ee relations. 2006 notes:If basis is a chattel mortgage(since it is a nominate contract like s ales,loan and surety) then it is with the regular courts. 2006 notes:If dispute is with the board of directors, it is within the area of t he corporation code so Labor arbiter has no jurisdiction except if such officer of the board is an ordinary employee then it is an issue of security of tenure. (5) Cases arising from any violation of Article 264 (prohibited activities) of this Code, including illegal strikes and lockouts; and (6) Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims arising from employer-employee relations, i ncluding those of persons in domestic or household service, involving an amount exceeding five thousand pesos (P5,000.00), whether or not accompanied with a cla im for reinstatement. (7) violation of compromise agreements and execution of award of voluntary a rbitrators (8) overseas employment disputes (money claim) (9) wage distortion (where there is no CBA), and NCMB failed to resolve disput e after 10 calendar days of conciliation. (b)Cases arising from the interpretation or implementation of collective bargain ing agreements and those arising from the interpretation or enforcement of compa ny personnel policies shall be disposed of by the Labor Arbiter by referring the same to the grievance machinery and voluntary arbitration as may be provided in said agreements. Mandatory Conciliation: Compromise agreement entered into shall be binding and final. Mandatory conc iliation shall be terminated w/in 30 calendar days. w/in 2 days from receipt of assigned case, Labor Arbiter shall issue summons to parties for conference for the purpose of amicably settling the case. 1.should parties arrive at agreement, it shall be reduced into writing and si gned by the parties and their counsel before the labor arbiter, it made not in p resence of LA, latter shall sign it after confronting the parties, particularl y the complainant, if he is satisfied that such is entered voluntarily than LA shall approved it. 2.if parties fail to agree, LA shall issue an order that parties must simult aneously file their respective verified position papers 3.non-appearance during hearing, if on side of complainant during 2 scheduled hearings, than case dismissed w/o prejudice .

(2006 Pointers:A party may file motion to revive/re-open a case dismissed w/o prejudice w/in 10 calendar days form receipt, otherwise his only remedy is to refile case in arbitration branch of origin) but if on side of respondent, c omplainant shall be allowed to file his position paper as well as submit eviden ce in support of his cause of action ,then LA shall render decision based on b asis of evidence on record Counsel have authority to bind their clients but cannot enter into compromise agreement w/o express consent or SPA from their clients. A Final and Executo ry judgment cannot be negotiated. Motion to dismiss should be filed on/b4 dat e set for mediation. An order denying motion until final determination is not appealable Case not terminated upon death of employer/owner.

Submission of papers (w/in 10 days from notice of termination of mandatory co nciliation): Papers shall cover only those claims & causes of action raised in the comp laint excluding those that may have been amicably settled. Labor Arbiter shall determine whether there s need for formal hearing . The procedure resolving issue s based on position paper s may be availed of by the arbiter if agreed by par ties. If employer failed to file position papers despite notice, labor arbiter is justified in deciding case based on position papers on record. NLRC cann ot review on appeal its own decision. Verification of Pleadings is a mere form al defect , it is not fatal. Court may order correction of pleading or act on the unverified pleading. 2006 Pointers: Labor Arbiter shall render decision w/in 30 calendar days(w/o ex tension) after submission of case by parties for decision. OFW 90 days. No motio n for reconsideration is allowed by NLRC if any such motion is filed, it shal l be treated as an appeal to the NLRC. Union is not allowed to split causes of action means after dismissal of charges , it harass employer w/ subsequent charges APPEAL: Appeal is perfected by filing by the appellant with the labor arbiter his memora ndum of appeal, copy furnished the appellee, and the payment of the appeal withi n 10 calendar days. (Vir-Jen Shipping vs. NLRC) -- or by posting of a cash or surety bond if such appeal is made by employer. Decisions of labor arbiters are appealable within 10 calendar days to the NLRC o n the following grounds: If there is prima facie evidence of abuse of discretion on the part of the labor arbiter. If the decision, order or award was secured through fraud or coercion, including graft and corruption. If made purely on questions of law. If serious errors in the findings of facts are raised which would cause grave or irreparable damage or injury to the appellant. (Art. 223) In case of a judgment involving a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond (VERY IMPORTANT!!!).

In any event, the decision of the Labor Arbiter reinstating a dismissed or separ ated employee, insofar as the reinstatement aspect is concerned, shall immediate ly be executory, even pending appeal. The employee shall either be admitted back to work under the same terms and conditions prevailing prior to his dismissal o r separation or, at the option of the employer, merely reinstated in the payroll . The posting of a bond by the employer shall not stay the execution for reinsta tement provided herein. 2006 notes:posting of bond is not needed if award is unclear or employer appeals merely an award of damages and not money claim.

The Commission shall decide all cases within twenty (20) calendar days from rece ipt of the answer of the appellee. The decision of the Commission shall be final and executory after ten (10) calendar days from receipt thereof by the parties. Any law enforcement agency may be deputized by the Secretary of Labor and Employ ment or the Commission in the enforcement of decisions, awards, or orders. (As a mended by RA 6715)

To discourage frivolous or dilatory appeals, the Commission or the Labor Arbiter shall impose reasonable penalty, including fines or censures, upon the erring p arties. In all cases, the appellant shall furnish a copy of the memorandum of appeal to the other party who shall file an answer not later than ten (10) calendar days f rom receipt thereof. Decision of Med-Arbiter & reg.Director appeal it to BLR (2005 revision) Decision of Bureau or Director in exercise of Orig. jurisdiction-appeal to Office of Secretary (see diagram on last page) Appeal must be under oath and consist of memorandum of appeal & filed w/in 24 hrs to where complaint or petition originated. Period to reply to appeal mus t be 10 days from receipt of memorandum of appeal it must be filed w/ Bureau o r Office of Sec as the case may be(2004-Azucena) Failure to bring appeal w/in pd. Prescribed by rules render judgement appealed from final & executory. However, it is w/in power of court to suspend its rules whenever purpose of justice requires it(Chronicle v. NLRC 2004 case) It shall become final & executory after 10 days from receipt by parties,unless a motion for recon. Is filed by any party w/in the same pd. Only 1 motion for r econ is Bureau/Secretary shall be allowed (2006 revision) Is order of reinstatement of a labor arbiter stayed by an appeal? Yes, for any i nformation or date concerning any matter or question relative to the object of t he investigation. (Art. 219) May the NLRC order the reinstatement of workers who did not appeal from a decisi on of the labor arbiter ordering payment of separation pay in lieu of reinstatem ents? No. An appellee who has not himself appealed cannot obtained from the appe llate court below. (SMI Fish Industries vs. NLRC)

May the NLRC consider evidence submitted for the first time on appeal? Yes. (Bri stol Laboratories vs. NLRC) 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 b y the Labor Arbiter motu proprio or on motion of an interested party. (Maranaw H otel vs. NLRC)

Do courts or administrative bodies have the power to set or fix rates of pay, wa ges, hours of work and other terms and conditions of employment?As a rule, court s and administrative bodies cannot fix the terms and conditions of employment be cause what is being promoted is collective bargaining.

Art. 224. Execution of decisions, orders, or awards. (a) The Secretary of Labor and Employment or any Regional Director, the Commissi on or any Labor Arbiter or Med-Arbiter, or the voluntary arbitrator or panel of voluntary arbitrators may, motu propio or on motion of any interested party, iss ue a writ of execution on a judgment within five (5) years from the date it beco mes final and executory, requiring a sheriff or a duly deputized officer to exec ute or enforce final decisions, orders or awards of the Secretary of Labor and E mployment or Regional Director, the Commission, or the Labor Arbiter or Med-Arbi ter, or voluntary arbitrator or panel of voluntary arbitrators. In any case, it shall be the duty of the responsible officer to separately furnish immediately t he counsel of record and the parties with copies of said decisions, orders or aw ards. Failure to comply with the duty prescribed herein shall subject such respo nsible officer to appropriate administrative sanctions. (b) The Secretary of Labor and Employment, and the Chairman of the Commissio n may designate special sheriffs and take any measure under existing laws to ens ure compliance with their decisions, orders or awards and those of Labor Arbiter s and voluntary arbitrators or panel of voluntary arbitrators, including the imp osition of administrative fines which shall not be less than five hundred pesos (P500.00) nor more than ten thousand pesos (P10,000.00). (As amended by RA 6715) . Art. 225. Contempt powers of the Secretary of Labor and Employment. In the exercise of his powers under this Code, the Secretary of Labor and Employment m ay hold any person in direct or indirect contempt and impose the appropriate pen alties therefor. Art. 254. Injunction prohibited. No temporary or permanent injunction or r estraining order in any case involving or growing out of labor disputes shall be issued by any court or other entity, except as otherwise provided in Articles 2 18 and 264 of this Code. (As amended by BP Blg. 227)

(BAR)Does service of notice of hearing upon respondent confer jurisdiction of th e former? No. Notices of hearings are not summonses. In the absence of service o f summons or a valid waiver thereof, the hearings and judgment rendered by the L abor Arbiter are null and void. (Larkins vs. NLRC) (BAR)May a legally dismissed EE be entitled to receive moral and exemplary damag

es? Yes, provided the dismissal is effected in an anti-social and oppressive man ner. (Quisaba vs. Sta. Ines Veneer and Plywood) (BAR)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 ille gally 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 dismiss ed 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. (Primer o vs. IAC) Aside from that, in Nestle v. NLRC (2004 case) car loans are not subject to the labor code, but a civil dispute since it involves debtor and creditor relatio nship and that if there is no labor dispute between parties, since parties di d not filed illegal dismissal against empoyer, but directly petitioned for injuc tion, NLRC has no power to issue such (PAL v. NLRC 2004 case) 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 ins tituted in the proper courts. Pending the final determination of the merits of the money claims, no civil acti on arising from the same cause of action shall be filed with any court. (Art. 29 2)

(BAR) In his complaint with the labor arbiter for illegal dismissal, A sought pa yment 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 n ot be supported by evidence unless it is an essential part of the cause of actio n. The burden of proving that payment of said benefits have been made rests with the ER. 2006 notes:claims not allege in complaint but are discussed on position paper ,t he labor arbiter may rule/adjudicate on it provided such claim is on complaint s p osition paper (DBP v NLRC). 2006 notes:but claims on wage differential not alleged in complaint cannot be gr anted by the labor arbiter.

(BAR)May the labor arbiter increase the original award it made after its decisio n 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 award s. (Industrial Timber vs. NLRC)

(BAR) May the labor arbiter decide the case on the basis of a supplemental posit ion paper submitted after the parties have filed their position papers and agree d 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, affida vits and other documents. (Manebo vs. NLRC)

Does the labor arbiter have jurisdiction over a claim of an EE of the SEAFDEC-AQ D an international organization? No. Being an international organization SEAFDEC -AQD enjoys functional independence and freedom from control of the state in wh ose territory its office is located. (SEAFDEC-AQD vs. NLRC) How about JUSMAG? No. The act of hiring cannot be considered a waiver of the for eign state s immunity from suit. (JUSMAG vs. NLRC) BUREAU OF LABOR RELATIONS : Original jurisdiction: appeal to the Office of Secretray Appellate Jurisdiction:decision shall be immediately executory upon issuance of final judgment.

Original Jurisdiction: 1.inter-union/inta-union conflicts 2.all disputes ,or problems arising from labor management relations in all workp laces EXCEPT those arising from implementation or interpretation of the CBA whic h shall be the subject of grievance procedure and voluntary arbitration 3.complaint involving federations,national unions, industry unions ,its officer s or member organization. Compromise Agreements: -if voluntarily agreed upon by parties with assistance of BLR or regional office of Dole,it is final and binding. -only time NLRC or any courts can assume jurisdiction is in case of non complian ce or there is prima facie evidence that the settlement was obtained through fra ud ,misrep or coercion. Power to issue Subpoena: -when relevant to a labor dispute under its jurisdiction either at request of an y interested party or at its own initiative. Registry of Unions and Filing of Collective Agreements: -open and accessible to parties under conditions prescribe by Secretary of DOLE provided that no specific information submitted in confidence shall be disclosed unless authorized by the Secretary or when it is at issue in any judicial litig ation or when public interest/national security so requires. -submitted within 30 days from execution of CBA to the BLR/DOLE for registratio

n accompanied with verified proofs of its posting in 2 conspicious places in the place of work and ratification by the majority of all the workers in the bargai ning unit.

Appeal: -within 10 day to the Secretary -Grounds grave abuse of discretion Gross incompetence

Bureau of Labor relations no longer handles all labor mgt. disputes, it confine s only to union matters, collective bargaining registry , labor education and handles Inter and Intra-union disputes.. 1.)Intra/Inter-union is filed by leg.labor org or its members where issue invo lve is entire membership and complaint must be supported by at least 30% of enti re membership 2.)Other related labor rel. dispute are any conflict bet. Labor union & employer or any individual that is not a labor org. It includes cancellation of regis tration of labor org. & interpleader. It is filed by a party-in-interest who i s not necessarily a union or union member.

Whether 1st or 2nd(2005 revision) category 1. if involves independent union,chartered local or worker s association file it w / DOLE Reg. Office (where labor Org. is registered) 2. If complaint involves federation or an industry/nat.union---file it w/ BLR

Effect of Pendency: 1.rights and relationship and obligations of parties prior to institution shall continue to remain until date of finality of decision rendered. 2.filing or pendency of dispute is not a prejudicial question to any petition fo r certification election and shall not be a ground for dismissal,suspension of certification proceedings. ART. 229. Issuance of subpoenas. - The Bureau shall have the power to require th e appearance of any person or the production of any paper, document or matter re levant to a labor dispute under its jurisdiction, either at the request of any i nterested party or at its own initiative. ART. 233. Privileged communication. - Information and statements made at concili ation proceedings shall be treated as privileged 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 pro

ceedings conducted by them. REGIONAL DIRECTOR: I.ADJUDICATORY POWERS: Money claims arising from labor standards violations not exceeding P5000 per ind ividual and without claims for reinstatement. (BAR)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 hea r money claims and benefits, including legal interest, owing to a househelper pr ovided the complaint does not include a claim for reinstatement and the aggregat e money claims of each EE or househelper does not exceed P5000. (Art. 129) II. VISITORIAL AND ENFORCEMENT POWER OF THE SECRETARY OF LABOR OR HIS DULY AUTH ORIZED REPRESENTATIVE 2006 notes:it has no limit as to the amount. 2006 notes:inspection ends with a compliance order. Process: Access to ER s records and premises at anytime of the day or night whenever work i s being undertaken therein and copy therefrom; question any EE; and investigate any fact, condition or matter which may be necessary to determine violations of this Code and of any labor law, wage order or rules and regulations issued pursu ant thereto. In cases where the relationship or ER-EE still exists, the power to issue Compli ance Orders to give effect to the labor standard provisions of this Code and oth er social legislation. Writ of execution to the appropriate authority shall be issued for the enforceme nt of the said orders, except in cases where the ER contests the findings of the labor employment and enforcement officer and raises issues supported by documen tary proofs which were not considered in the course of inspection. Order stoppage of work or suspension of operations of any unit of or department of an establishment when non-compliance poses grave and imminent danger to the h ealth and safety of workers in the workplace. Within 24 hours, a hearing shall be conducted to determine whether an order for the stoppage of work or suspension of operations shall be lifted or not. In case the violation is attributable to the fault of the ER, he shall pay EE s th eir salaries or wages during the said period. 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 compli ance with LABOR STANDARD LAWS, then the regional director must order the necessa ry rectifications. However, this does not include adjudication of money claims c learly within the ambit of the labor arbiter s authority under Art. 217 of the Lab or Code. (Ong vs. Parel)

2006 notes:Visitorial power of the Regional director is confined with money clai ms arising from labor standards violations while the visitation power of the med -arbiter (regional office) is confinced to inquiring into union financial activi ties. 2006 notes:It shall be unlawful for any person to Obstruct, impede, delay or oth erwise render ineffective the order of the Secretary of Labor. 2006 notes:No inferior court shall issue a temporary or permanent injunction or restraining order or otherwise assume jurisdiction over any case involving the e nforcement orders in accordance with this Article. -Any government EE found guilty of violation, after appropriate administrative i nvestigation, be subject to Summary dismissal from the service. -The Secretary of labor may require ER s to keep and maintain employment records a s may be necessary. GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION: All grievances submitted to the grievance machinery which are not settled within seven (7) calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the collective bargaining agreem ent. Matters falls under the exclusive and original jurisdiction of voluntary arbitra tors provided for in a CBA: Unresolved grievances arising from the: 1.Interpretation or implementation of the CBA and those arising from the interpr etation of enforcement of company personnel policies; 2.Interpretation and enforcement of company personnel policies (sexual harassmen t is a work related matter); and 3.All other disputes including unfair labor practices and bargaining deadlocks s ubmitted to them by agreement of the parties. 4.Wage distortion(there is a CBA unlike in labor arbiter, where there is no CBA). 2006 notes:1&2 constitute the mandatory jurisdictions while #3 constitute permis sive jurisdiction. 2006 notes:grievance machinery under 277B is superior than the grievance machine ry under the CBA. 2006 notes:Moment voluntary arbitrator render his decision, it becomes final and executory after 10 days, however in rules of court, it is appeallable within 15 days how to reconcile it? Follow 15 dyas, but you have to notify voluntary arbitrator that you will appeal the decision. 2006 notes:Voluntary arbitration s jurisdiction is only between mgt and union, as such it has no jurisdiction over workers and latter cannot be compel to answer. 2006 notes:Volarb is not bound by decision of other volarb, that s why there exist no voluntary arbitration jurisprudence. 2006 notes:the President of the Philippines or the labor arbiter can be a volunt ary arbitrator (like the PAL case)

2006 notes:The Commission, its Regional Offices and the Regional Directors of th e Department of Labor and Employment shall not entertain disputes, grievances or matters under the exclusive and original jurisdiction of the voluntary arbitrat or or panel of voluntary arbitrators and shall immediately dispose and refer the same to the grievance machinery or voluntary arbitration provided in the collec tive bargaining agreement. (As added by RA 6715)

Art. 262. Jurisdiction over other labor disputes. The voluntary arbitrator or panel of voluntary arbitrators, upon agreement of the parties, shall also he ar and decide all other labor disputes including unfair labor practices and barg aining deadlocks. (As added by RA 6715) 2006 notes: interest disputes example is a bargain deadlock while a rights dispu te are adversarial and on the merits ,it pertains only as Juan v ABC Corporation w hile an interest dispute is in re:bargaining deadlock Art. 262-A.Procedures. The voluntary arbitrator or panel of voluntary arbitrator s shall have the power to hold hearings, receive evidences and take whatever act ion is necessary to resolve the issue or issues subject of the dispute, includin g efforts to effect a voluntary settlement between parties. All parties to the dispute shall be entitled to attend the arbitration proceedin gs. The attendance of any third party or the exclusion of any witness from the p roceedings shall be determined by the voluntary arbitrator or panel of voluntary arbitrators. Hearings may be adjourned for cause or upon agreement by the parti es. Unless the parties agree otherwise, it shall be mandatory for the voluntary arbi trator or panel of voluntary arbitrators to render an award or decision within t wenty (20) calendar days from the date of submission of the dispute to voluntary arbitration. The award or decision of the Voluntary Arbitrator or panel of Voluntary Arbitrat ors shall contain the facts and the law on which it is based. It shall be final and executory after ten (10) calendar days from receipt of the copy of the award or decision by the parties. Upon motion of any interested party, the voluntary arbitrator or panel of volunt ary arbitrators or the Labor Arbiter in the region where the movant resides, in case of the absence or incapacity of the voluntary arbitrator or panel of volunt ary arbitrators for any reason, may issue a writ of execution requiring either t he sheriff of the Commission or regular courts or any public official whom the p arties may designate in the submission agreement to execute the final decision, order or award. (As added by RA 6715)

Summary on Voluntary Arbitrators 2006 notes:supervised by National Conciliation and Mediation Board Cases decided within 20 calendar days ,final within 10 calendar days. 1.unresolve grievances arising from interpretation or implementation of the CBA except gross violation of the CBA -unresolve within 7 days from submission to grievance machinery -monetary claim based on CBA provision is under the exclusive jurisdiction of gr

ievance machinery and VolArb 2.unresolved grievances arising from interpretation or enforcement of company pe rsonnel policies 3.upon agreement of parties ,any dispute

MED ARBITER(REGIONAL OFFICE UNDER BLR) Original Jurisidiction: appeal to the office of the Secretary Appellate Jurisdiction:appeal to CA on certiorari 1.petition for certification election (MedArbiter) 2.registration of CBA/Labor Org 3.Inter-union conflicts (representation issue/cancellation of registration) BLR 4.intra-union conflicts (election of officers/compliance with CBL) Regional direct or,appeal with BLR LABOR ORGANIZATION Types of Organization in General: 1.Employee s Organization This pertains to Government Employment, which specifically points to the rank an d file. It should registered to the Civil Service then to the Bureau of Labor Relations It has no right to strike.

2.Worker s Association Pertains to Private Employment for mutual aid and protection. It should be registered to the Bureau of Labor Relations However, it has no right to strike.

3.Labor Organization Pertains to the Rank&File and to Supervisors It should be registered to the Bureau of Labor Relations ,once registered it has a separate and distinct personality but not as a labor organization since you become the latter if such becomes the exclusive bargaining agent. It has a right to strike 2006 notes: when you speak of collective bargaining ,it pertains to a private en tity while if you state negotiation, it means a government entity. 2006 notes: confidential employees like in the case of republic planters case ,t he SC states that it is through necessary implication (n right to self-organizat ion) that even if such ee are not included in law to self organize but if they h

ave conflict of interest, then, they are considered as managerial. it is not title but duty that make you such 2006 notes:with regard non-resident alien, the focus is on reciprocity. 2006 notes:domestic employees are by necessity are not allowed to form union.

Art. 212 : Labor Organization Any union for association of EE s which exists for the purpose of collective bargaining or of dealing with E s concerning terms and conditions of e mployment. Legitimate Labor Organization Any labor organization duly registered with the DOLE that includes any branch or local. A local chapter becomes a legitimate labor organization only upon submission of: A.Charter certificate within 30 days from its issuance by the laborfederation 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 Art. 212 : Any controversy or matter concerning terms and conditions of employme nt or the association or representation of persons in negotiating, fixing, maint aining, changing or arranging terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of ER and EE. What is the test to determine whether a labor controversy comes within the defin ition of labor dispute? It depends on whether it involves or concerns terms, conditions of employment or representation. (Azucena) Labor Relations Policy A.Promote and emphasize the primacy of free Collective bargaining and negotiatio ns, including voluntary arbitration, mediation and conciliation, as modes of set tling labor and industrial disputes. B.Promote free trade unionism 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 a s 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 st abilize the relation between labor and management and to create a climate of sou nd 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 th e parties. (Art. 273) A line must be drawn between policies which are purely business-oriented and tho se which affect the rights of EE s. Workers and ER s shall, as far as practicable, be represented in decision and poli cy-making bodies of the government. The Secretary of Labor and Employment or his duly authorized representatives may call a tripartite conference of representat ives of government, workers and EE s for the consideration and adoption of volunta ry codes of principles designed to promote industrial peace or to align labor mo vement relations with established priorities in economic and social development. (Art. 275) (ME vs. CUPID) Right to Self-Organization Constitutional Basis of Right 1.Art. III, Sec. 8, Const. : The right of the people, including those employed i n 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 worker s to self-organization, collective bargaining and negotiations, and peaceful con certed activities including the right to strike in accordance with law. Coverage I. Art. 243 : Coverage and EE s right to self-organization 1.All persons employed in commercial, industrial and agricultural enterprises an d in religious, charitable, medical, or educational institutions --- whether ope rating 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 collec tive bargaining. 2.Ambulant, intermittent and itinerant workers, self-employed people, rural work ers 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 hav e 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 fo r 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. Extent and Scope of Right

I. Art. 246 : Non-abridgement of right to self-organization for any person to :

It shall be unlawful

1.Restrain 2.Coerce 3.Discriminate against or 4.Unduly interfere with EE s and the workers in their exercise of the right to sel f-organization II. The right to self-organization includes the right not to form or join a unio n (Reyes vs. Trejano) However, by virtue of the operation or enforcement of a cl osed shop clause in a CBA, an ER may be compelled on pain of dismissal, to becom e a member of a labor union. (Alcantara) III. May an ER impose as condition for employment that the applicant shall not j oin 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 constitut es an unfair labor practice. It is interference with the individual s right to sel f-organization. (Alcantara)

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 ent erprises and in religious, charitable, medical, or educational institutions whet her operating for profit or not, shall have the right to self-organization and t o 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 comp osed of 8 barbers on the ground that the shop was a service establishment and th e 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-orga nization 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 u nion. Is this allowed? Yes. Even EE s in non-profit or religious organizations are entitled to exercise this right. (Alcantara) 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 Art. 245 : Supervisory EE s shall not be eligible for membership in a labor organi zation of the rank-and-file EE s but may join, assist or form separate labor organ izations of their own. [ Supervisory EE s] Those, who, in the interest of the ER, effectively recommend suc h managerial actions if in the exercise of such authority is not merely routinar y 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 no menclature of position held. (NSRC vs. NLRC) If the recommendation of the teacher area supervisor is subject to evaluation, r eview and final approval of the principal, is the teacher a supervisory EE? No. This is merely ineffective or clerical recommendation. (Laguna Colleges vs. CIR) Supervisors were given the job of either to assist the foreman if the effective d ispatch of manpower and equipment or execute and coordinate work plans emanating f rom his supervisors. Are these supervisors supervisory personnel? No. They only exe cute approved and established policies leaving little or no discretion at all wh ether to implement the said policies or not. (Southern Philippines Federation vs . Calleja) 2006 notes: supervisors are prohibited from joining rank and file union for purp oses of collective bargaining but not for litigation which means ,he can implore the union in order to defend himself vs the ER but he cannot get benefits of the CBA.

A. RIGHT TO ORGANIZE and LIMITATION 1.A supervisory union cannot represent the professional/technical and confidenti al EE s whose positions are more of the rank and file than supervisory. The profes sional/technical EE s may join the existing rank and file union, or form a union s eparate 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 c onflicting 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 federati on. Is this allowed? No. A local supervisors union should not be allowed to affil iate 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 int erests of the ER regarding terms and conditions of employment. (Atlas Litographi c 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 organizatio ns of their own choosing for purposes of collective bargaining, provided, that s

aid aliens are nationals of a country which grants the same or similar rights to Filipino workers. Security Guards Security guards may join rank and file or supervisors union depending on their r ank. (MERALCO vs. Secretary of Labor and Employment) 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)

Sanctions for Violation of Right 1.Art. 248 : It shall be unlawful for an ER to interfere with, restrain or coerc e 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 off icers, agents and representatives to restrain or coerce EE s in the exercise of th eir 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 d iscretion 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 pu nished under this Code shall be under the concurrent jurisdiction of the Municip al or City Courts and the RTC. 4.Art. 289 : If the offense is committed by a corporation, trust, firm, partners hip, association or any other entity, the penalty shall be imposed upon the guil ty officer or officers of such corporation, trust, firm, partnership, associatio n or entity. 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 o rganization.[ 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 t hereof, and to other officers and members of the managerial staff. (Art. 82)]A m anagerial EE is one who is vested with powers of prerogatives to lay down and exe cute management policies and/or hire, transfer, suspend, lay-off, recall dischar ge, 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 un ion can become company-dominated with the presence of managerial EE s in the membe rship. (Golden Farms vs. Calleja) 2.Confidential EE s are also prohibited from forming unions. (Pier8 Arrastre vs. C onfesor) Having access to confidential information, they may become a source of

undue advantage. (HOWEVER, if no access to confidential info then they may organ ize) 3.Firemen, AFP ,PNP and Jail Warden 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 ju dgment in directing a ship s course is managerial in nature. (Association of Marin e 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 disqualifies a member from joining any labor organization within the cooperative with respect however, to E E s who are neither members or co-owners, they are entitled to the rights of selforganization for purposes of collective bargaining (Benguet Electric vs. FerrerCalleja). However, a member/owner has the right to withdraw as owner of the coop erative 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, r ural workers and those without definite ER s may form labor organizations for thei r mutual aid and protection. However, they are not entitled to the constitutiona l right to join or form a labor organization for purposes of collective bargaini ng. (Singer vs. Drilon)

LABOR ORGANIZATION Art. 212 : Any union or association of EE s which exist for the purpose of collect ive bargaining or of dealing with ER s concerning terms and conditions of employme nt. LOCAL UNION Sec. 1, Rule I, Book V, IRR s : Any labor organization operating at the enterprise level. 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. LEGITIMATE LABOR ORGANIZATION

Art. 212 : Any labor organization duly registered with the DOLE, and includes an y branch or local thereof. 2005 notes: 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)

COMPANY UNION Art. 212 : Any labor organization whose information, function or administration has been assisted by any act defined as ULP by this Code. When is a labor organization wholesome? A labor organization is wholesome if it serves its legitimate purpose of promoting the interests of labor without unnece ssary labor disputes. That is why it is given personality and recognition in con cluding CBA s. but if it is made use as a subterfuge, or as a means to subvert val id commitments, it defeats its own purpose, for it tends to undermine the harmon ious relations between management and labor. (United Seamen s Union vs. Davao Ship owners Association)

Private (SUMMARY) Labor Organization- it is for the purpose of CBA that makes it a labor organizat ion such is granted by DOLE. Legitimate Labor Organization- registered with DOLE Exclusive Bargaining Agent- even if it is the only one ,still there must be a ce rtification election (due to the right of the ee s to a no union vote)

Public(SUMMARY) EE s Organization (same with Labor Org in Private) Legitimate EE Org Sole and Exclusive Representative- if no other organization, once registered ,yo u become the exclusive bargaining agent but if there s 2 of you, then, there s certi fication election.

DETERMINATION OF APPROPRIATE BARGAINING UNIT 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 bargai ning unit Determining whether in one corporation ,dapat ba na may isang union lang or sep arate union.

The fundamental factors in determining the appropriate collective bargaining uni t are : 1. Will of the EE s. 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 bar gaining unit is not controlling it is a factor which would be taken into conside ration in reaching a decision.

2. Affinity and unity of the EE s interest, such as substantial similarity of work and duties, or similarity in compensation and working conditions ( Community or Mutuality of Interest ). In making judgments about community of interest in these different settings, the B ureau 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 conditio ns 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 col lective bargaining. 9.Extent of union organization. (Azucena) A cigar manufacturing company has 7 departments, namely administrative, raw leaf , cigar, cigarette, engineering and garage, dispensary and sales. May the rank-a nd-file in the administrative, sales and dispensary be grouped separately from t he rank-and-file of the other departments? Yes. They are engaged in work differe nt from those performed in the other departments. Thus, they have a community of interest different from that of the other departments. (Alhambra vs. PAFLU) Golden Farm has 2 sets of EE s : monthly-paid clerical workers and daily-paid agri cultural 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 te rms of duties and obligations, working conditions, salary rates, and skills. (Go lden Farms vs. Sec. of Labor) May the non-academic personnel of UP be joined with the academic personnel? No. The 2 groups do not have community or mutuality of interests. (UP vs. Ferrer-Cal leja)

3. Intervening Historical Fact. Due to intervening historical fact, whereby in one group or division in a busine ss entity, the numbers are decreasing due to retrenchment, that division may joi n the other division as a union. 4. Similarity of employment STATUS, such as temporary, probationary and seasonal EE s. 2006 notes: the basic test of an asserted bargaining unit s acceptability is wheth er 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-Callej a)

Single or ER Unit is Favored 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 u nder the control of only 1 board of trustees; that they are housed in the same b uilding; that there is but 1 cashier and registrar for the 2 departments; that t here are teachers who are teaching in both departments; that the elementary depa rtment would be left without a bargaining representative; and that there are onl y 130 teachers involved in the proceedings. How many bargaining units should the re be? The facts show community of interests of the teachers in the college and high sc hool departments. Beside, the establishment of separate units would leave the el ementary teachers without a bargaining representative. And considering that ther e are only 130 teachers, the division of the bargaining unit dissipate their str ength for collective bargaining purposes. Finally, the ER would be contending wi th 2 different unions vying for each other for better benefits to gain more memb ers. (Laguna College vs. CIR) Two Companies with Related Businesses Two corporations cannot be treated as a single bargaining unit even if their bus iness are related. (Diatogon vs. Ople) However, when if in reality, the companie s constitute a single business entity i.e. 3 corporations acting as security age ncies were under the same management and had interlocking incorporators and offi cers, the veil of corporate fiction may be lifted for the purpose of allowing th e EE s to form a single union and be part of a single bargaining unit. (PSVSIA vs. Torres)

Pre-condition

ER-EE Relationship

The duty to bargain collectively exists only between the ER and its EE s. When the re is no duty to bargain collectively, it is not proper to hold certification el

ection in connection therewith. (PLUM vs. Compania vs. Maritima)

REGISTRATION Any applicant labor organization shall acquire legal personality and shall be en titled to rights and privileges of legitimate labor organizations upon issuance of a certificate of registration upon submission of the following requirements ( independent registration): 2005 notes:to register, the members must comprise atleast 20% of all its EE s in b argaining unit except when federation itself created a chartered local(as such, the 20% is not anymore applicable). A. Registration Fee B. Names of its officers, addresses, principal address of the organization, minu tes 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 bargain ing unit. D. Copies of annual financial reports if union has been in existence for more th an 1 year. E. Copies of constitution and by-laws (2005 Pointers: by laws is the contract between members w/c court will enforce unless immoral or contrary to law. It c an be modified by majority of its members.) 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 exi sting 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 presi dent. (Id.) 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 estab lishment 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. period for action on application 30 days from filing (Art. 235)

WHERE TO REGISTER (2005 Revision): Regional Office (where applicant principally operates) For independent union ,chartered locals and worker s association. If reg.office denies, denial is appeallabe to Bureau then to Court of Appea ls (not to sec. of labor)

Bureau or Reg.office (but shall be processed in the Bureau) For federations, Nat.Unions or workers association operating more than 1 year ,if Bureau denies ,appeallable to Sec. of Labor, then to court of Appeals. It is deemed REGISTERED from date of issuance of its cert. of registration or creation of chartered local.

2 Types of Registration: 1.Independent registration (already discussed) 2.Affiliating with a Federation or National Union -issued chartered certificate -DOLE shall issue your registered certification that you have become a local of such federation. (2006 notes)Being local, if your registration is cancelled, then you have no sta nding. However, if local is expelled from union, you still enjoy independence.

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 appropria te collective bargaining unit for purposes of collective bargaining. C. To be furnished by the ER, upon written request, with its annual audited fina ncial 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 an d 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 me mbers. E. To sue and be sued in its registered name. F. To undertake all other Activities designed to benefit the organization and it s members. G. Its income and properties which are directly and exclusively used for their l awful purposes, shall be free from taxes, duties and other assessments. The exem ptions provided herein may be withdrawn only be a special law expressly repealin g this provision. (REFOSAF) Can the union effect a compromise of the money claims of workers? Money claims d ue to laborers cannot be the object of settlement or compromise effected by a un ion or counsel without the specific individual consent of each laborer concerned . (Kaisahan ng mga Manggagawa sa La Campana vs. Sarmiento)

May a union waive a right of union members to reinstatement provided for in an N LRC decision? No, the waiver of reinstatement, must be regarded as a personal ri ght which must be exercised personally by workers themselves. (Jag vs. NLRC)

EFFECT OF NON-REGISTRATION Union, must comply with all the requirements of registration as a legitimate lab or 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 regist ration will not annul the designation of the labor union as sole bargaining agen t by the virtue of a certification election since the defect is not fatal. (UE A utomotive EE s vs. Noriel) 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 con tractor or otherwise engaging in any activity prohibited by law, this phrase refer s to an activity partaking the nature of a labor contractor. Thus, an illegal st rike is not one of the grounds for cancellation of registration. (Itogon-Sayoc v s Sangilo-Itogin Worker s Union)--- PROHIBITED ACTIVITY PARTAKES THAT OF A LABOR C ONTRACTOR. 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 th ese 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 fis cal year and misrepresentation of fraud in the preparation of the financial repo rt. 5. Acting as labor contractor of cabo system.

6. Entering into CBA s which provide terms and conditions of employment below mini mum 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 asse ssment or other fees without duly signed individual written authorization of mem bers. 9. Failure to submit list of individual members once a year or when required (MA CED MALL)

Who files Petition (2005 revision) Any party in interest may commence a petition for cancellation of registration including the employer except in action involving violations of Art.241 w/c ca n only be commence by members of the labor org. constituting at least 30% of all members. The petition shall be under oath and shall state clearly and concisely the fa cts and grounds relied upon accompanied by proof of service to the responde nts. Where to file(2005 revision) Regional director- for independent labor union, chartered local and worker s asso ciation Bureau Director-federations, national or industry unions and trade union centers . Cancellation orders issued by reg.directos are appeallable to BLR, the latter s de cision is final and executory. But if it is original, appeal to Secretary. (pro cedure is same to inter-intra union) Effect: It loses entitlement to the rights enumerated under Art.242, It cannot demand recognition by or bargaining w/ employer, cannot file a petition for certifi cation election and cannot strike ( 2005 revision)

SUMMARY OF JURISDICTIONS: 1.Disputes/Registration & Affiliation/ Merger & Consolidation/ Change of Name: a.If Independent Union, Chartered local and Worker s Associaiton file it with DOL E Regional Office (who has jurisdiction also w/ regard check off disputes) b.For Federation, National Union, Worker s association operating for 1 year file it with BLR ( Who has jurisdiction also w/ regard CBA termination from union, but i f it is ER-EE, then to NLRC )

2.Appeal: a.Appeal from above is to the BLR if registration denied, then to Secretary b.Appeal is to Secretary then to the Court of Appeals if registration is denied

3.Certification Election (discussed in depth in succeeding topic) a.Petition

regional office which has jurisdiction over principal office of Employer Reg Direc tor assigned case to med-arbiter which latter has 20 days from submission of ca se. b.Signature Verification It is the director of Labor Relations not the union who will determine if there has compliance with at least 25% of Employees consent. c.Protest Formalized with Med-Arbiter w/in 50 days after close of election proceedings ,ot herwise protest be deemed dropped. Appeal shall be to the Secretary on ground violation of rules and regulation e stablished by secretary. UNION-MEMBER RELATIONS Nature of Relationship The union may be considered but the agent of its members for the purpose of secu ring 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) Summarize the basic rights of union members : 1. Political right Member s right to vote and be voted for, subject to lawful prov isions on qualifications and disqualifications. 2. Deliberative and decision-making right Member s right to participate in deliber ations on major policy questions and decide them by secret ballot. 3. Right over money matter Member s right against excessive fees, right against un authorized collection of contributions or unauthorized disbursements; the right to require adequate records of income and expenses and the right of access to fi nancial records; the right to vote on proposed special assessments and be deduct ed a special assessment only with the member s written authorization. 4. Right to information Member s right to be informed about the organization s const itution 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 rul es and with respect to the acquisition or retention of membership. 2. Art. 277 : Any EE, whether employed for a definite period or not, shall, begi nning on his 1st day of service, be considered an EE for purposes of membership in any labor union. 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 t o admit to membership, without any reasonable ground therefor. Thus, while gener ally the State may not compel the union to admit the individual as a member, thi s 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 i s very clear that the provision discriminates against an individual for having e xercised his right to self-organization. (Alcantara) 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 se rvice without representation in bargaining with the ER. (Alcantara) 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 fro m the union upon a vote of 2/3 of all the members. Is the rule valid?No. The exp ulsion 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. Th ey 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 co mpany 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 t heir side before expelling them. And the company should have complied with proce dural due process before dismissing them. (Ferrer vs. NLRC)

2006 notes: Local is the agent of the bargaining unit, however, it ceases to be exclusive in terms of grievances ,which means, an employee (who is not a member) must be def ended by the union since such ee is a member of the bargaining unit, even though not a member of a local. Federation-is the agent of the local

B.UNION OFFICERS

QUALIFICATION, TENURE AND COMPENSATION

Give the rules of the Labor Code governing union officers : 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 ball ot at intervals of 5 years( duration in office). > No qualification requirements for candidacy to any position shall be imposed o ther 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 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 impea chment 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 o fficers. Question of eligibility to vote may be determined through the use of ap plicable 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 assu mption of office of those who garnered the second highest number of votes. (Mana lad vs. Trajano) B.3 Expulsion Remedy Remedy against erring union officers is not referendum but union expulsion. Howe ver, 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 worker s of their right to self-organization. This right will be diluted if the electio n is not fairly and honestly conducted. Thus, elections for union officers atten ded by grave irregularities are invalid. (Rodriguez vs. BLR) 2. Will failure to comply with the technical requirements or formalities in rela tion to the election of union officers invalidate the election? No, as long as i t does not appear that such failure resulted in the deprivation of any substanti al right or prerogative of anyone or caused the perpetration of fraud or other s erious 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 ve ry popular with the union members that they elected him as union president. Is t his 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 deliberati on, any question of major policy affecting the entire membership of the organiza tion, unless the nature of the organization or force majeure renders such secret ballot impractical. > 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 dete rmine any question of major policy affecting the entire membership. Disaffiliati on is a major policy issue. (Alcantara)

RULES GOVERNING UNION FUNDS : 1. The members shall be entitled to full and detailed reports from their officer s and representatives of all financial transactions. 2. No officer, agent or member of a labor organization shall collect any fees, d ues or other contributions in its behalf or make any disbursement of funds unles s he is duly authorized by the constitution and by-laws. 3. Every payment of fees, dues or other contributions by a member shall be evide nces by a receipt signed by the officer or member making the collection and ente red 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 exp ressly 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 sh owing 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 prescri be after 3 years from date of submission of the annual financial report to the D OLE 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 render ed 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 mad e : 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. 9. No special assessment or other extraordinary fees may be levied upon the memb ers of a labor organization unless authorized by a written resolution of a major ity of all the membership meeting duly called for the purpose.The secretary shal l 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 du ly 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 up on filing of a complaint under oath and duly supported by a written consent of a t least 20% of the total membership to determine compliance with the law.Such in quiry shall not be conducted during the 60-day freedom period within the 30 days immediately preceding the date of election of the union officials. Attorneys Fees 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. Cl ave) 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 th e 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. (A LU vs. NLRC) 2005 notes: Atty fees may not be deducted from any amount due to an employee w/ o his written consent (except for mandatory activities under the Code) 2006 notes:even if tapos na ang decision, atty may file for atty s fees as long as the money is still in the hands of the court. 2006 notes:10% atty s fees in labor is the maximum, so a lawyer should file an att y fee lower than that. 2 cases where Atty s fees may be assessed : 1.cases from withholding of wages 2.cases from collective bargaining negotiations

UNION INFORMATION Art. 241 : It shall be the duty of any labor organization and its officers to in form 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 f inance labor relations seminars and other labor education activities. (Responsib ility 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 sha ll be a ground for cancellation of union registration or expulsion of officer fr om office, whichever is appropriate. At least 30% of all the members or any memb

er 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. 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 vio lation and seek redress. (Kapisanan ng mga Manggagawa vs. Bugay)

CHECK OFF Requisites for a valid check off: 1. authorization by a written resolution of majority of members at a gen. me mbership called for the purpose. 2. Secretary recorded it 3. Individual written authorization for check off duly signed by employee conc erned. Types of Check off: 1.Special Assessment(ex:union education and dues) Written resolution of a majority of all members of the union at a general member ship meeting, required for validity of levy of a special assessment. (Palacol vs . Ferrer-Calleja) The law does not require that disauthorization must be in individual form. (Id.) The Board of Directors of a union passed a resolution assisting every union memb er of P2.00 to be used in the purchase of a birthday gift for the courageous law yer of the union. The union members refused to pay assessment. Is the refusal ju stified? Yes. The assessment was not authorized by a written resolution of a maj ority of all the members at a general membership meeting for the purpose. At a general membership meeting, a majority of the members of the union voted fo r a written resolution assessing each member P5.00. A member who did not vote af firmatively and did not execute an individual written authorization refused to p ay the same. Is his refusal justified? No. He is bound by the resolution. Howeve r, the absence of a written check-off authorization means that the assessment ca nnot be deducted by the ER from his wages or other amounts due him, but he is st ill obliged to pay the same. (Alcantara)

2.Mandatory Activities Art. 214 : Other than for the mandatory activities under the Code : no special a ssessment, attorneys fees, negotiation fees or any other extraordinary fees may be checked off from any amount due to an EE without an individual written author ization duly signed by the EE. What is a mandatory activity? Judicial process of settling dispute laid down by law. (Vengco vs. Trajano) CBA Negotiation

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 w ithout written, signed authorization. (Galvadores vs. Trajano) 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) 2006 notes: Another allowable deduction from employee s wages what we call AGENCY FEE -- it is the amount equal to dues paid by non-union members since he benef its from CBA negotiated by union.

Jurisdiction over Check Off

Disputes

Reg.Director of DOLE (not labor arbiter 2005 Revision) and that a check off comp laint is not against ER even if latter is named as respondent.

ABS-CBN Case: check off is a process whereby the ER, on agreement with union, re cognized as proper bargaining representative on prior authorization form EEs ,de ducts union dues/agency fees from latter s wages and remits it to union. It is for benefit of union and only indirectly to individual ee. -- no deduction be taken from workers who did not sign any check-off authorizati on.

AFFILIATION , MERGER AND CONSOLIDATION Affiliation Sec. 3, Rule II, Book V, IRR s : An affiliate of a labor federation or national un ion may be a local or an independently registered union. RULES: 1. The labor federation or national union shall issue a charter certificate whic h shall be submitted to the Bureau within 30 days from issuance. 2. An independently registered union shall be considered an affiliate after subm ission 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 li st 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 feder ation or national union operates shall henceforth be elected or appointed as an officer of such union, affiliate, local or chapter. NATURE OF RELATIONSHIP The mother union is merely an agent of the local union. (NAFLU vs. Noriel) 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, notwiths tanding affiliation, the local union remains the basic unit to serve the common interest of all its members. (Adamson vs. CIR)

DISAFFILIATION The right of a local union to disaffiliate from its mother union is consistent w ith the constitutional guarantee of freedom of association. (Volkschel Labor Uni on vs. BLR) LEGALITY ACT - DISAFFILIATION 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 close d shop agreement is a valid form of union security and is not a restriction of t he right of freedom of association guaranteed by the Constitution. 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 respec t to the process of disaffiliation. (Liberty Cotton Mills Workers Union vs. Libe rty Cotton Mills) 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 (i t would constitute disloyalty), even within the prescribed 60-day period before the expiry of an existing CBA. (Villar vs. Inciong) EFFECT OF DISAFFILIATION 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 t o bind the members of the new of disaffiliated and independent union up to the C BA s expiration date. (Associated Workers Union vs. NLRC) However, the substitutio nary doctrine is not applicable to the personal undertaking of the deposed union i.e. no-strike stipulation. (Benguet Consolidated vs. PAFLU) With regard union dues (2005 revision), the obligation of ee to pay union(inclu ding check off) dues is coterminous w/ its affiliation or membership

Merger Process where labor org absorbs another resulting in cessation of absorbed union s existence(1 is bigger than the other) Consolidation Unification of 2/more union (Amalgamation) Where to file (2005 revision): -for Indep.labor union,chartered locals & worker s associaton file & recorded by Reg ional Office that issued cert.of registration and creation of chartered local . -for notce of merger or consolidation of federation or nat.union--Bureau Change of Name Notice of Change of Name shall be filed with Bureau or Reg.Office where la bor org s cert. of registration was issued. Such Change of name shall not affe ct all rights and obligations of the org. under the old name.

3 METHODS OF ESTABLISHING MAJORITY STATUS 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 represen tative or of competitive bargaining representative. a.Unorganized Establishment: petition to hold election may be filed w/ DOLE Reg.office anytime by any legist.labor org except w/in 12 mos. From a previo us CE, run-off or consent election(2005 revision). b.Organized: Petition filed only w/in the freedom pd,such must have a written support of atleast 25% of employees so as not to be considered as a nuisance. In casting votes, it is under supervision and control of DOLE officials. --- if casting of votes is not decisive enough ,the election official may requ ire a run-off election. Certification election can also be conducted by B ureau of labor Relations in a gov t corporation whether governed by Labor Code or Civil Service Rules (2005 Revision)

VENUE OF PETITION 1. Sec. 1, Rule V, Book V, IRR s : A petition for certification election may be fi led 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 dire ctor shall assign the case to a Med-Arbiter to appropriate action. The Med-Arbit er 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 lo cated 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 convenienc e of the parties rather substance of the case. Since the worker is more economic ally disadvantaged, the nearest government machinery to settle a labor dispute m ust be placed at his immediate disposal. (Cruzvale vs. Laguesma)

Procedure (organized and unorganized): 1.Petition with Med Arbiter (which will decide within 20 days) 2.File Appeal with Regional office but it is the Secretary of Labor who decides a.if secretary decides, the decision is final and executory and not subject to m otion for reconsideration. b.if petition is denied, party can file a memorandum of appeal to regional direc tor -regional director transmits MOA to secretary -party given period to reply to the appeal -15 days to decide, decision is final and unappelable if petition is granted in an unorganized. NO DIRECT CERTIFICATION Direct certification is no longer allowed as a method of selecting the bargainin g 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. (CENEC O vs. Sec. of Labor) ONE-UNION, ONE-COMPANY POLICY The proliferation of unions in an ER unit is discouraged as a matter of policy u nless compelling reasons exist which deny a certain and distinct class of EE s the right to self-organization for purposes of collective bargaining. (Pagkakaisa n g mga Manggagawa sa triumph vs. Ferrer-Calleja) RATIONALE The holding of a certification election is based on a statutory policy that cann ot be circumvented. The workers must be allowed to freely express their choice i n a determination where everything is open to their sound judgment and the possi bility of fraud and misrepresentation is eliminated. (Progressive development vs . Sec. of Labor) 2005 Pointers: --when a union files a case for & in behalf of its members a member or several members of that union will not be permitted to file in same case a complaint-in -intervention even if it alleges the union was not pursuing the case diligent ly.Such complaint , together w/ motion for intervention will have to be denied upon a finding that members are already well represented by their union . Intervention may be allowed when there s a suggestion of fraud or collusion o r that the representative will not act in good faith for protection of all i nterest represented by the union.

2.Consent Election Election voluntarily agreed upon by the parties to determine the issue of majority representation of all the workers in the appropriate barga ining unit.

3.Run-Off Election between the labor unions receiving the 2 highest number of vo ted when a certification election which provides for 3 or more choices results i n 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 t he 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 repr esentation 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 barg aining. (Warren Workers Union vs. BLR) CERTIFICATION ELECTION I.ORGANIZED ESTABLISHMENT It is a firm or company where the EE have selected an exclusive bargaining repre sentative or where there is a CBA duly submitted to the DOLE. (Sec. 6, Rule V, B ook V, IRR s) Conditions that 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 regional office within the 60-day freedom period (file by LLO or ER when requested to bargain collectively). 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) 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? RUN-OFF ELE CTION 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) A certification election was held between 3 contending unions, A, B and C. Of th e 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 spo iled. How do you determine the majority vote in the certification election ? 2006 notes:The majority vote in the certification election is 50% plus 1 of the valid votes cast. Spoiled ballots are excluded. (Id.) Freedom Period A petition for certification election may be filed during the last 60 days (free dom period) of the CBA (if there is an existing CBA). Any petition filed before or after the 60-day freedom period shall be dismissed outright. (Sec. 3, Rule V, Book V, IRR s) 2006 notes:if no existing CBA, it is filed anytime except when barred by certifi cation year rule(within 1 yr from implementation of new CBA), deadlock bar rule or negotiations rule. 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 an d 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 adverse ly affected by a CBA registered before or during the last 60 days of a subsistin g agreement or during the pendency of the representation case. (Sec. 4, Rule V, Book V, IRR s) May a federation file such a petition in behalf of its chapter or local? The mot her federation may file a petition for certification as agent of the local or ch apter provided both the mother federation and the local or chapter is a legitima te labor organization. (Progressive Development vs. Sec. of Labor) Signature verification It is the Director of Labor Relations, rather than a union that is required to d etermine 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 certi fication election. (Today s Knitting vs. Noriel) Substantial Support(BAR) 1. What percentage of the EE s should support the petition for certification elect ion in an organized establishment? The required number is 25% of all the EE s in t he bargaining unit. 2. Is there a need simultaneous submission of the signatures together with the p etition for certification election? No. The mere filing of a petition for certif ication 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% st atutory requirement has not been complied with? Yes. Even conceding that the sta tutory requirement of 25% is not strictly complied with, the Med-Arbiter is stil l empowered to order that the certification election be held precisely for the p urpose of ascertaining which of the contending labor organizations shall be the exclusive bargaining agent. The requirement then is relevant only when it become

s mandatory in conduct a certification election. (CMC vs. Laguesma) Once the sta tutory requirement is met, it is mandatory for the Med-Arbiter to conduct a cert ification election. (Belyca vs. Ferrer-Calleja) In all other instances, however, the discretion ought to be ordinarily exercised in favor of a petition for a ce rtification election. (CMC vs. Laguesma) 4. The NFSW filed a petition for certification election. It was contended howeve r by another union that more than 20% of the membership of NFSW disaffiliated an d 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 represe ntative for the purpose of collective bargaining, the Bureau shall order a certi fication election by secret ballot. To hold otherwise would violate the liberal approach constantly followed in labor litigation. (VICMICO vs. Noriel) Motion for Intervention Support

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

ER as Initiating Party (both to organized and unorganized) 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, aft er hearing, order a certification election. The certification case shall be deci ded within 20 working days, and the certification election shall be conducted wi thin the 20 working days from the decision. ER has no role in certification election except when asked to bargain collective ly under the Bystander Rule. (Philippine fruits and vegetable Industries vs. Torre s) It was a well-settled rule that ER has no standing to question a certificatio n election since it is the sole concern of the workers. (PTTC vs. Laguesma) II.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. 2006 notes: there is no 25% requirement. 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) except within 1 yr from date of a valid certification election (certification y ear rule)

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 a gricultural or non-agricultural, except those arising from the implementation or interpretation of CBA s which shall be subject of grievance procedure and/or volu ntary arbitration. 2. The practice of the Board referring certification cases to the TUCP, a privat e 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 whic h the laborers can freely determine the union that shall act as their representa tive 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-a dversary 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. Waiver The execution of an agreement to waive the mandatory 5 days posting election not ices binds the parties thereto by the doctrine of estoppel. (JISSCOR vs. Torres)

VOTING LIST AND VOTERS 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 par ticipate in the certification election irrespective of the period of their employ ment. (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 intend ment of the law is to grant the right to vote to all bona fide EE s in the bargain ing unit, whether they are members of a labor organization or not. (Reyes vs. Tr ajano) Dismissed EE s EE s who have been improperly laid-off but who have a present, unabandoned right t o the expectation of reemployment, are eligible to vote in certification electio ns. (Phil. Fruits and Vegetables Industries vs. Torres) Probationary EE s Probationary EE s in the appropriate bargaining unit are entitled to vote. (Airtim e Specialists vs. Director of Labor Relations) VOTING DAY 1. Sec. 2, Rule VI, Book V, IRR s : The election shall be set during the regular b usiness 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 hel d 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 di d not necessarily make said date an irregular business day of the company. (Asia n Design vs. Ferrer-Calleja) PROTEST 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 cl ose of the election proceedings, otherwise the protest shall be deemed dropped. (Sec. 4, Rule VI, Book V, IRR s) APPEAL Art. 259 : Any party to an election may appeal the order or results of the elect ion as determined by the Med-Arbiter directly to the Sec. of Labor and Employmen t on the ground that the rules and regulations established by the Sec. have been violated. > Such appeal shall be decided within 15 calendar days. ANNULMENT Circumstances showing irregularities in the holding of the certification electio

n are sufficient to invalidate the same. (Confederation of Citizens LaborUnion v s. Noriel) 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 representa tive of the EE s in such unit for the purposes of collective bargaining.

BAR TO CERTIFICATION ELECTION A. GENERAL RULE :One year Bar Rule (Certification year) Sec. 3, Rule V, Book V, IRR s : No certification election may be held within 1 yea r from the date of issuance of a final certification result. The phrase final certification result means that there was an actual conduct of el ection. In case where there was no certification election conducted precisely be cause the first petition was dismissed, on the ground of a defective petition, t he certification year bar does not apply. (R. Transport vs. Laguesma) B. EXCEPTIONS A petition for certification election may be entertained where unusual circumsta nces 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 c ertification election. ( 2004 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 conciliatio n or arbitration of which has become the subject of a valid notice of strike or lockout. (NASUCIP-TUCP vs. Trajano) 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 What is the contract bar rule? The existence of a CBA duly filed o the DOLE, in compliance with the requirements and standards of bars a certification election in the collective bargaining unit he 60 days prior to the expiration of the life of such contract. and submitted t the said office except within t (Foamtex Labor

Union vs. Director of Labor Relations) Give the statutory recognition of the contract bar rule : The Bureau shall not e ntertain any petition for certification election which may disturb the administr ation of duly registered existing CBA s affecting the parties. (Art. 232) The exclusive bargaining union entered into a 5-year CBA with the company. Becau se 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 reg istered 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 o f Art. 231 should not adversely affect the substantive validity of the CBA. A CB A 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 technica l grounds is not conducive to the public good. (TUCP vs. Laguesma) Company A signed a 3-year CBA with Union X, the duly authorized bargaining repre sentative. The CBA was never formally ratified by the EE s, although they all acce pted 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-submi ssion 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 com prises substantial terms and conditions of employment. (Buklod ng Saulog vs. Cas alia)

C. HASTILY CONCLUDED CBA 8 months prior to the expiration of the CBA, the company and the union renewed t he same for another 3 years. Can the renewed CBA be set up as a bar to the holdi ng of the certification election? If the CBA is prematurely (since wala pang 6 months) 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 th e workers of their right to freely select their bargaining agent. (General Texti les Allied Workers Association vs. Director of Labor Relations) DAPAT 6 MONTHS!!! Not before or after ,dapat within 6 months ALU had a CBA with PASAR. Several days before the expiration of the CBA NAFLU fi led a petition for certification election. During the pendency of the representa tion case, the Med-Arbiter enjoined PASAR from entering into a CBA with any unio n. 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 ba d 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 c ontract bar rule applicable? No. It is doubtful if any contract that may have been entered into between ALU a nd the company will foster stability in the bargaining unit in view of the subst antial number of EE s that have resigned from the old union and joined the new uni on. (Firestone vs. Estrella)

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

4blue95 says that you enter into CBA in order that you have demands that the ben efits and other things you want to receive must be beyond what is stated by law. If however, such benefit is just the same with the law, then that is what we ca ll as SWEETHeart Contract.

VALIDITY OF CBA SIGNED DURING REPRESENTATION DISPUTE When a CBA is entered into at the time when a petition for certification electio n had already been filed by a union and was then pending resolution, the said CB A cannot be deemed permanent, precluding the commencement of negotiations by ano ther union with management. (ATU vs. Trajano) 2006 notes: If after 5 yrs, no certification election was conducted, ER must res pect the existing CBA, EE s cannot demand for CBA beyond that period the only except ion where new CBA is possible beyond the freedom period is when such existing CB A is not registered. 2006 notes:in voting during certification election, it should be based on valid votes such that it must be 50% +1 coz if not ,then even if garnered highest vote ,such entity cannot be declared as exclusive bargaining unit, therefore, a run-o ff must occur. 2006 notes: union may disaffiliate even before the 60 day freedom period if it p ossesses the will of majority of the members. 2006 notes:lawyer cannot enter into compromise ,but he can enter w/ regard colle ctive negotiation agreement and memorandum agreement in behalf of the members.

SUSPENSION OF CERTIFICATION ELECTION Prejudicial Question Rule 1. United CMC Textile Workers filed a complaint for unfair labor practice agains t CENTEX and PAFLU, alleging the CENTEX helped and cooperated in the organizatio n of PAFLU. During the pendency of the case, PAFLU filed a petition for certific ation election. May the certification election be suspended pending the determin ation of the case? Yes. Pendency of a formal charge of company domination is a p rejudicial question that bars proceedings for certification election. (United CM C Textile Workers vs. BLR) 2. Who can file and maintain an opposition to the holding of the certification e lection based on a charge of company domination? Only the union who made the cha rge since it is the entity that stands to lose and suffer prejudice by the certi fication election. What if there is a pending unfair labor practice charge by the ER against the un ion. 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 fo restall the certification election. (Id.)

Effect of Pending Petition for Cancellation of Trade Union registration An order to hold a certification election is proper despite the pendency for can cellation of the registration certificate of union which is a party to the repre sentation dispute. The rationale for this is that all the time the respondent un ion filed its petition, it still had the legal personality to perform such act a bsent an order directing a cancellation. (Association of CA EE s vs. Ferrer-Callej a) CERTIFICATION ELECTION CANNOT BE FILED WHEN(SUMMARY): 1.Certification Year Rule (Unorganized Establishment) The one year gives a chance to the winner a chance to negotiate the CBA. Howeve r, even if lampas na 1 year if negotiation is still on going ,certification yea r rule applies, so if that is the scenario no certification election is entertai ned in order to allow that a CBA shall be concluded. 2006 notes:but negotiation of the CBA during the 60 day freedom period does not bar a petition for certification election.

2.Deadlock Bar Rule (Organized Establishment)

Once it exist, the condition that it must be a subject to a strike or a compulso ry arbitration is not anymore applicable, so long as such deadlock exist. There is deadlock whenever there is an impasse or no movement (kay di magkasundo sa mga demands) in the negotiation and that they do not meet on a common groun d.

3.Contract Bar Rule (Organized Establishment) Whenever there is already an existing CBA, there is no need for a petition for c ertification election except during the 60 day freedom period. a.Any CBA that the parties may enter into shall, insofar as the representation a spect is concerned; be for a term of 5 years. No petition questioning the majori ty status of the incumbent bargaining agent shall be entertained and no certific ation election shall be conducted by the DOLE outside of the 60-day period immed iately before the expiry date of the CBA (CONTRACT BAR RULE). b.All other provisions of the CBA shall be renegotiated 3 years after its execut ion.

4.Schism (Substitutionary Doctrine) Majority of the local wanted to break out form the union ,therefore, a referendu m was called and thereby resulting to the majority of the locals to break out fr om the union. However ,they have to respect the existing CBA a.but the new union can ask for the shortening of CBA b.new union is not bound by the personal obligation of the old union (like a no strike clause)

INTERNATIONAL ACTIVITIES OF UNION PROHIBITION AND REGULATION What activities by aliens are prohibited?

All aliens, whether natural or juridical are strictly prohibited from engaging d irectly 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 organiza tions 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, repre sentation elections, union elections; and 6. other analogous activities. (Art. 270)]

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 instit utions engaged in research, education or communication, in relation to trade uni on activities, without prior permission by the Sec. of Labor > This prohibition also applies to foreign donations or other forms of assistanc e, 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. > (BAR)The strike declared by Union M has reached its 60th day. Taking pity on t he 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, dist ributing food and drinks to the strikers violated the prohibition against aliens from engaging directly or indirectly in all forms of trade union activities. Th e term trade union activities includes all forms of concerted union actions and an alogous activities.

Always remember(May 16,2006 update): Bargaining Unit is the principal, as such it is the one who enjoys the CBA benef its and perform the CBA, but it has no personality Exclusive Bargaining Agent is the Agent thereby it is the one who negotiates the CBA and secures it, therefore it has a personality.

COLLECTIVE BARGAINING Process of negotiation between an ER or ER s and the EE s organization or union to r each an agreement on the terms and conditions of employment for a specified peri od. It covers the entire range of organized relationships between ER s and EE s repr esented by union, this includes the negotiation, administration, interpretation or application of the labor contract. Nature and Purpose of collective bargaining Collective bargaining is a democratic framework to stabilize the relation betwee n 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 obliga tion. (loy vs. NLRC)

1.RIGHT TO BARGAIN (arises as soon as union becomes exclusive bargaining agent,it has right to col lective bargaining) The mechanics of collective bargaining is set in motion only when the following jurisdictional preconditions are present : -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 La bor Code. -Proof of majority representation. -Demand to bargain under Art. 250.

2006 NOTES:CBA is a never ending process because parties continue to negotiate ( Repulbic Savings Bank v CIR) Collective bargaining does not end with the execution of an agreement. It is a c ontinuous process. The duty to bargain imposes on the parties during the term o f their agreement the mutual obligation to meet and confer promptly and expediti ously and in good faith for the purpose of adjusting any grievances or question arising under such agreement. (RSB vs. CIR)

2.DUTY TO BARGAIN According to GenMilling v CA: there are 5 instances whereby duty to bargain aris es: 1.wage distortion 2. Art. 251: In absence of CBA,Party shall bargain collectively in accordance wi th law (and may demand latest audited financial statement) 3.Art 252:when there is already an exclusive bargaining agent, latter shall pres ent proposal and when management do not agree, then you may enter into agreemen t that to meet promptly and in good faith for purposes of arriving into a CBA. 4.Art 253:when there s CBA, neither party shall terminate or modify agreement. 5.Art 253-A:All other provision of CBA shall be renegotiated not later than 3 ye ars after its execution. a.Any CBA that the parties may enter into shall, insofar as the representation a spect is concerned; be for a term of 5 years. No petition questioning the majori ty status of the incumbent bargaining agent shall be entertained and no certific ation election shall be conducted by the DOLE outside of the 60-day period immed iately before the expiry date of the CBA (CONTRACT BAR RULE). b.All other provisions of the CBA shall be renegotiated 3 years after its execut ion. 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. 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) Union A and Co. B concluded a CBA with a duration of 3 years. Upon the expiratio n of the 3-year period, Co. B discontinued to benefits under the CBA. Is this le gal?No. Art. 253 requires the parties to keep the status quo and discontinue in full force, and effect until a new agreement is reached.

2006 notes:Unless expressly assumed, labor contracts such as employment contract s and CBA s are not enforceable against a transferee of an enterprise, labor contr acts being in personam, thus binding only between parties. As a general rule, th ere 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 t he assets or enterprise is not legally bound to absorb in its employ the EE s of t he seller of such assets or enterprise the parties are liable to the EE s if the c olored or clothed with bad faith. (ALU vs. NLRC) 3.PROCEDURE A.NEGOTIATION PHASE(END S WITH CBA) 10 days management should response, if not ,it is mark as not bargaining. 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 te rms and conditions of employment including proposals for adjusting grievances o r questions arising under such agreement and executing a contract incorporating such agreement if requested by either party, but such duty does not compel any p arty to agree to a proposal or to make any concession. (Art. 252) Negotiation consist of : Meet and convene In good faith For purpose of CBA Make any concession To agree to any proposal 2006 notes:a status tentatively agreed upon means it is not permanent and may b e modify again so it can never be a source of right. 2006 notes:it is considered in badfaith if parties negotiate but at same time ma nagement while negotiating files an action questioning the standing of the union , or that management bargain through the employees and not through a union. 2006 notes:it is also badfaith if there is surface bargaining whereby sige barga in pero no result.

Art. 260 : The parties to the CBA shall include therein provisions that will ens ure the mutual observance of its terms and conditions. They shall establish mach inery for the adjustment and resolution of grievances arising from the interpret ation of their CBA and those arising from the interpretation or enforcement of c ompany 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. Registration - Period, Requirements and Actions Art. 231 : Within 30 days from the execution of a CBA the parties shall submit c opies of the same directly to the Bureau of Regional Office of the DOLE for regi stration 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 o f such CBA within 5 calendar days from the receipt thereof. The Regional office shall furnish the Bureau with a copy of the CBA within 5 day s from its submission. The Bureau shall maintain a file of all CBA s and other rel ated agreements and records of settlements of labor disputes and copies of order s, decisions of voluntary arbitrators. The file shall be open and accessible to interested parties under conditions prescribed by the Sec. of Labor and Employme nt. PRIVATE PROCEDURE Art. 251 : In the absence of the CBA, it shall be the duty of the ER and the rep resentatives of the EE s to bargain collectively.

CODE PROCEDURE In the absence of an agreement or other voluntary arrangement providing for a mo re expeditious manner of collective bargaining, the following procedures shall b e observed : 1. When a party desires to negotiate an agreement, it shall serve a written noti ce 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 m ay request a conference which shall begin not later than 10 calendar days from d ate of request. 3. If the dispute is not settled, the Board shall intervene upon request of eith er or both parties to conciliation meetings. The Board shall have the power to i ssue subpoenas requiring the attendance of the parties to such meetings. It shal l be the duty of the parties to participate fully and promptly in the conciliati on meetings the Board may call. 4. During the conclusion proceedings in the Board, the parties are prohibited fr om 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 p arties 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. Where the disclosure of some of the information could be prejudicial to the undertaking, its communication m ay 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 regard ing any matters taken up at conciliation proceedings conducted by them. (Art. 23 3)

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 assum ption of jurisdiction or certification of the dispute to the NLRC.] B.ADMINISTRATION PHASE (THERE IS ALREADY A CBA) In case there is an existing collective contract, the duty shall include the obl igation to adhere faithfully to its terms and not terminate or modify the same d uring its period of effectivity. (Art. 253) Steps in Administration are(art 253): 1.neither shall terminate agreement 2.not modify terms, however,an exemption is the 3 year rule whereby terms can be negotiated not later than the 3rd year. if there s grievance, the steps in negotiation is followed.

Art. 225 : However, an individual EE or group of EE s shall have the right at any time to present grievances to their ER. (BAR) J, a member of a union has been certified as the sole and exclusive bargai ning 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 deman ded for wage increases for the other EE s

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 l aw governing ordinary contracts. A CBA, as a labor contract within the contempla tion 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 mu st 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 c onstruction upon it, giving due consideration to the context in which it is nego tiated and the purpose which it is intended to serve. (Davao Integrated vs. Abar quez) However, like ordinary contracts, ignorance of its terms by either party, includ ing the EE s who are principals of the bargaining union, will not justify the brea ch of the contract. (Manalang vs. Artex) Are wage increases paid by the ER pursuant to laws and wage orders compliance wi th the wage increases provided for under a CBA? No. In the absence of a provisio n 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 sh ould be treated as separate from each other. A CBA is a contractual obligation i mposed by law. EE benefits derived from law are exclusive of benefits arrived th rough negotiation and agreement unless otherwise provided by the agreement itsel f or by law. (Meycauayan College vs. Drilon)

The CBA was not formally ratified by the majority of the workers in the bargaini ng unit. However, the workers received and enjoyed the benefits under the CBA. C an 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 Pr oduct vs. NLRC) C.RE-NEGOTIATION PHASE 2006 notes:if incumbent remain, or there s new exclusive bargaing agent, so you re negotiate(follow steps in negotiation)so during this time if there s grievance fol low negotiation steps also.

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 purs uant to the power of compulsory arbitration vested in the Secretary. (Art. 263) 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)

(BAR)A CBA provides for the deduction of union dues from non-member of the barga ining 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 unjustl y enriched at the expense of the bargaining agent.

(BAR)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 recog nized collective agent may be assessed a reasonable fee equivalent to the dues a nd 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 nonmembers recognized collective bargaining agent. (Art. 248) The law does not impo se 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.

(BAR)The CBA negotiated by union Y provides for wages to EE s in the production an d 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 u nit covered by the agreement. In the 2nd place, the wage increases were not obta ined through the efforts of union Y.

4.PRODUCT OF THE AGREEMENT The CBA It is a negotiated contract between a legitimate labor organization and the ER c oncerning wages, hours of work and all other terms and conditions of employment in a bargaining unit, including mandatory provisions for grievances and arbitrat ion machineries. (Sec. 1, Rule VI, Book V, IRR s) The most important aims of CBA are : a.To establish industrial peace by enabling capital and labor to resolve their d isputes and controversies on terms mutually acceptable and satisfactory to thems elves. b.To enhance industrial efficiency through speedy resolution of labor disputes c oncerning fixing of wages, working hours and other terms and conditions of contr acts incorporating such agreements, and the adjustment or settlement of any grie vance arising thereunder. c.To establish benefits of labor higher or greater than those fixed by law. The various aspects are : 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, prompt ness and expeditious actions. f.The duty to refrain from unilateral changes concerning matters subject to barg aining. g.In case there is an existing CBA, the duty to adhere faithfully to its terms a nd not terminate or modify the same during its period of effectivity.

Check-off if it is not in the by-laws, that is the time that majority vote sets in. if it is in the by-laws, kahit walang authorization sa individual employee ,dahi l nasa by laws na siya, such employee is subjected to such check-off (as such t he ABS-CBN ruling is not applicable if such check-off is in the by laws of the C BA)

BASIC PARTS OF CBA: 1.RECOGNITION CLAUSE Define representation of bargaining unit w/c is same order certifying the union as representative

2.UNION SECURITY CLAUSE(applies prospectively) Open shop Open to everyone, a member can resign anytime

Closed shop Agreement whereby an ER binds himself to hire only members of the co ntracting union who must continue to remain members of the union in good standin g for the duration of the agreement as a for the continued employment. Union shop Only whereby an ER is permitted to employ a union-worker, but to reta in employment such worker must become a union member after some period and maint ain his membership therein in good standing for the duration of the agreement. 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. Agency shop An agreement whereby EE s must either join the union or pay to the uni on as exclusive bargaining agent a sum equal to that paid by members(to discoura ge free riders).

2006 notes:Union security clause is not applicable to: 1.members of another union 2.religious 3.everybody during the 60-day freedom period

2006 notes: whenever union invokes union security clause ,management must conduc t independent investigation to know that such clause is being followed, but mana gement cannot question the decision based on the investigation being conducted b

y union.

3.GRIEVANCE SECURITY CLAUSE Labor arbiter has jurisdiction over grievance pero pwede ang VolArb if agreed by parties. But NCMB can dictate who will be the voluntary arbitrator. However,even if it involves personnel policies interpretation if there is alread y a termination, jurisdiction is with labor arbiter not volarb.

4.NO STRIKE, NO LOCK-OUT CLAUSE Strike here covers only economic strike (not ULP strike since not waivable) sinc e former compels management to grant something higher than that granted by law ( like a higher wage) Bargainable Issues in the CBA Obligation to Negotiate Mandatory Bargaining Subjects

It is the obligation of the ER and the EE s representative to bargain with each ot her 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 mad e to bargain in good faith concerning them. However, the law does not compel agr eements between ER s and EE s and neither party is obligated to yield even on a mand atory bargaining subject, for as long as they bargain in good faith.

What are considered mandatory subjects of bargaining (these are the terms and co nditions of work): 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 h. Lay-off i. EE s workloads j. Work rules and regulations k. Rent company houses l. Union security arrangements m. No-Lockout Clause n. Clause fixing contractual term.

2006 notes: award of loans for housing is a mandatory subject, however, if what was the demand is that there must be no lay off for 2 yrs then that is not an ec onomic benefit so not mandatory. 2006 notes:Gross violation is the refusal of employer to grant an economic benef it in the CBA (which constitutes an unfair labor practice)

Non-Mandatory Subjects The right to bargain on a non-mandatory subject does not include to right to ins ist on the inclusions of the non-mandatory subject in the CBA as a condition to any agreement. Give some examples of non-mandatory subjects : a. Management prerogative clauses. b. Union discipline clause. c. Arbitration, strike vote or no-strike clauses. UNFAIR LABOR PRACTICE Unfair labor practices 1. Violate the constitutional right of workers and EE s to Self-organization 2. Are inimical to the legitimate interests of both labor and management, includ ing 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. Conditions precedent to an Unfair Labor Practice 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. No Unfair Labor Practice : Illustrative Instances of Valid Exercise of Managemen t 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 reasonabl y 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 shou ld 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 cont ract on the ground that their teaching performances were not satisfactory. Is th e refusal unfair labor practice?

No. The refusal was not by reason of their union membership but by reason of th eir 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 t he advancement of the ER s interest and not for the purpose of defeating or circum venting the rights of EE s under special laws or valid agreement and are not exerc ised in a malicious, harsh oppressive, vindictive or wanton manner or out of mal ice or spite. (Wise vs. Wise EE s Union) Forced Vacation Leave The forced vacation leave without pay in view of the economic crisis, being neit her malicious, oppressive or vindictive, does not constitute unfair labor practi ce. (Philippine Graphic vs. NLRC)

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 re jecting the standards desired by their ER. Hence, the ER does not commit as unfa ir labor practice by discharging EE s who engaged in slowdown, even if their objec t is a pay increase and therefore is lawful. -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)

2006 notes: in ULP, exhaust first all administrative remedies, then file for cri minal.

UNFAIR LABOR PRACTICE OF EMPLOYER 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. 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 fr om an innocent and non-interfering course of conduct is often difficult. Interfe rence 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 t he EE s to sign a petition repudiating the union. 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 questionin g, 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 f rom ER hostility to union organization and must not itself be coercive in nature . (Id.) 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 act ive 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) LOCKOUTS, CLOSURE 1. A lockout, actual or threatened, as a means of dissuading the EE s from exercis ing their rights clearly an unfair labor practice. (2004 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-organiza tion and collective bargaining commits unfair labor practice. (Sy Chi Junk Shop vs. Federacion Obrero de la Industria) 3. Where there is a simulated sale as a device to merely get rid of the EE s who w ere members of the union, the company is guilty of unfair labor practice. (Monca da Bijon Factory vs. CIR) The acquiring company created to relieve the old compa ny 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 disregarde d if it is being used to run away from corporate obligations. (Delfin vs. Incion g) PROHIBITING AND INTERFERING IN ORGANIZING ACTIVITIES Give instances of unfair labor practice in the form of prohibitions against unio n organizing activities : 1. Rule prohibiting solicitation of union membership in company property during non-working and working time. But if the prohibition is merely during working ho urs, this is not unfair labor practice since the ER has the prerogative of promu lgating rules and enhance production within its premises during working hours. 2. Dismissal of union members upon their refusal to give up their membership, un der 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 j oined a union and engaging in union activities. (East Asiatic vs. CIR) 2006 notes:ULP Dismissal is filed w/in 1 yr; without just/authorized causes is f iled within 4 yrs. 2006 notes:If ULP Dismissal cannot be filed w/in 1 yr,you can cannot convert it to ordinary illegal dismissal but cannot convert latter to ULP. 2006 notes: The remedy of reinstatement in ordinary dismissal has many exemption s kay kung di pwede you could avail separation pay. While in ULP ,reinstatement must be executed. 5. Issuance of suspension and termination orders for EE s participating in a verif ication 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 sen t collective bargaining proposals to the company; and that C, had no reason to t hreaten 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 U nion vs. NLRC)

SPEECH Borderline Speech Speech prepared by lawyer for employer whereby it does not contain a promise ,re ward or threat. To know that if such speech is anti-union and would constitute ULP, know the hi story of the context of the act (TOTALITY OF CONDUCT) Totality of Conduct The culpability of ER s remarks were to be evaluated not only on the basis of thei r implicit implications, but were the be appraised against the background for an d 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 estab lished collateral plan of coercion or interference. 2006 notes: 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 practi ce, provided, of course, the remarks were not so hostile as to evidence or produ ce a coercive or intimidating purpose or effect. 2006 notes:law only require that speech taken in themselves to have tendency to produce the evil sought to be taken as ULP. However, an exemption to such is wh enever it is for a legitimate purpose 2006 notes:with regard symbolic speech(wearing of arm band by ee)if there was hi story that mgt allow it, therefore mgt cannot hinder it.

VIOLENCE OR INTIMIDATION Violation must have been found where the ER threatened EE s favoring the union wit h force or violence. (2004 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 E E s pursuant to a strategy of the company designed to provide an apparent lawful c ause for their dismissal and said dismissed EE s had not figured in similar incide nts before or violated company s rules in their many years with the company. (Visa yan Bicycle vs. NLU)

ESPIONAGE AND SURVEILLANCE One form of pressure which some over-eager ER s sometimes use is the practice of spy ing upon EE s. Inasmuch as the pressure results more from the EE s apprehension than f rom 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 wer e 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. RUN-AWAY SHOP The transfer of an industrial plant from one location to another in order to dis criminate against EE s at the old plant because of their union activities. REFUSAL TO HIRE STRIKING WORKERS There is unfair labor practice in the refusal of ER to reinstate strikers who ab andoned their strike and who voluntarily and unconditionally offered to return t o work. (Cromwell vs. CIR) Yellow Dog Contract 1. Art. 248 : It shall be unlawful for the ER to require as a condition of emplo yment that a person or an EE shall not join a labor organization or shall withd raw from one to which he belongs. 2. What is a yellow dog contract? It is a promise exacted from workers a conditi on of employment that they do not belong to, or attempt to foster, a union durin g their period of employment. The typical yellow dog contract contains a represe ntation 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. 3. X, a member of a union, applied for employment with Y Co. The union is not am ong 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 exa ction 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 co mmitted against a prospective EE. Contracting Work Out 1. Art. 248 : It shall be unlawful for an ER to contract out services or functio ns being performed by union members when such will interfere with, restrain or c oerce EE s in the exercise of their rights to self-organization. 2. Shell dissolved its security guard section, transferred 18 guards to other de partments and eventually dismissed them, then contracted out to an independent s ecurity agency. Such section was among the departments covered by the existing C BA. In the absence of an express reservation in the CBA of Shell s right to abolis h the section, did the ER commit unfair labor practice?Yes. The dissolution of a section is a violation of the CBA, the terms of which cannot be unilaterally di sregarded 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 Art. 248 : It shall be unlawful for an ER to initiate, dominate, assist or other wise interfere with the formation or administration of any labor organization, i ncluding the giving of financial aid or other support to it or its organizers or

supporters. 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 encoura ge or discourage membership in any labor organization. [Discouraging membership in a labor organization includes not only discouraging adhesion to union members hip 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/P hilippines EE s Union vs. NLRC) b. Discrimination in dissemination of bonus allocation of salary adjustments bet ween 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 practi ces 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 appoin tments after their hiring. (Manila Railroad vs. Kapisanan ng mga Manggagawa sa M anila Railroad) e. Indirect discrimination i.e. the discharge of an EE due to the union activiti es of wife, brother or husband. (Azucena) 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 f act 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 actu ally motivated by a lawful reason, the fact that the EE is engaged in union act ivities at the time will not lie against the ER and prevent him from the exercis e 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 ac t as would interfere with the EE s right to self-organization, encourage or discou rage 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 lab or practices. The said provisions, being penal in character, should be strictly construed.

Violation of Duty to Bargain 1. Art. 248 : It shall be unlawful for an ER to violate the duty to bargain coll

ectively as prescribed by this Code. 2. While the law does not compel the parties to reach an agreement, it does cont emplate that both parties will approach the negotiation with an open mind and ma ke 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 subsequentl y received a letter by the president of the union of its workers that they wante d to negotiate directly with the company and not through ALU. Because of this, B almar 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 q uestion which group in the bargaining representative of its workers. (Balmar far ms vs. NLRC) Testimony of EE Art. 248 : It shall be unlawful for an ER to dismiss , discharge or otherwise pr ejudice or discriminate against an EE for having given or being about to give te stimony under this Code. Negotiation or Attorneys Fees Art. 248 : It shall be unlawful for an ER to pay negotiation of attorneys fees t o the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute. ECONOMIC INDUCEMENTS A violation results from an ER s announcements of benefits prior to a representati on election, where it is intended to induce the EE s to vote against the union. While a strike is going on, the president of the company sent each worker a lett er stating among others that if the latter returned to work, he can have his mea ls 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 w riting of the letter unfair labor practice?Yes. The letter tends to undermine th e concerted activity of the EE s, an activity which they are entitled free from th e ER s molestation. (Insular Life EE s Association vs. Insular Life) 2006 notes: if 3rd person commits ULP, you are automatically commit Employer ULP . However, a mayor or a GOCC with original charter if not due to labor organizat ion, do not commit ULP. VIOLATION OF CBA 1. Art. 248 : It shall be unlawful for an ER to violate a CBA. 2. Art. 261 : Violations of a CBA, except those which are gross in character, sh all no longer be treated an unfair labor practice and shall be resolved as griev ances under the CBA.

UNFAIR LABOR PRACTICE OF LABOR ORGANIZATIONS Restraint or Coercion by Labor Organization 1. Art. 249 : It shall be unfair labor practice for a labor organization to rest

rain 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 exe rcise of his right to refuse to participate or recognize a strike i.e. blocks th eir ingress and egress from the plant or damages their automobiles. 2006 notes:to be a restraint or coercion in ULP it must be an actionable threat which means it must constitute a crime and must be violated by an exclusive b argaining agent.

Discrimination 1. Art. 249 : It shall be unfair labor practice for a labor organization to caus e or attempt to cause an ER to discriminate against an EE, including discriminat ion 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 condit ions under which membership is made available to other members. 2. The union may not arbitrarily use the union security clause to unjustly discr iminate 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 resol ution of disaffiliation from the mother federation. The federation demanded dism issal of the union members pursuant to the maintenance of membership clause in t he CBA. Thereafter, the union members were dismissed. Is there unfair labor prac tice? Yes. The union members were dismissed by reason of their freedom to disaff iliate. (Liberty Cotton Mills Workers Union vs. Liberty Cotton Mills) 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.

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 re presentative of the EE s.

Featherbedding and Make-Work Arrangements Art. 249 : It shall be unfair labor practice for a labor organization to cause o r attempt to cause an ER to deliver or agree to pay or deliver any money or othe r things of value, in the nature of an exaction, for services which are not perf ormed or not to be performed including the demand for free for union negotiation s. Define featherbedding : Name given to EE practices which create or spread employ ment by unnecessarily maintaining or increasing the number of EE s used, or the amou

nt of time consumed to work on a particular job. 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 contai ner, has the union committed in unfair labor practice?Yes. The union is guilty o f 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.

Gross Violation of CBA Art. 249 : It shall be unfair labor practice for a labor organization to violate a CBA. 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 grievanc es under the CBA. 2006 notes: Gross Violations of a CBA -- Flagrant and/or malicious refusal to comp ly with the economic provisions of such agreement. 2006 notes: to violate a CBA , the union should violate the no strike clause .

ENFORCEMENT, REMEDIES AND SANCTIONS

In case the ER committing the unfair labor practices is a corporation, associati on or partnership, who may be held criminally liable? Only the officers and agen ts of corporations, associations or partnerships who have actually participated in, authorized or ratified the unfair labor practices shall be held criminally l iable. (Art. 248) Who may be held criminally liable for the unfair labor practices committed by la bor unions? Only the officers, members of governing boards, representatives or a gents or members of labor associations or organizations who have actually partic ipated in, authorized or ratified the unfair labor practices shall be held crimi nally 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 La bor and Employment of the powers vested in them by Arts. 263 and 264 of this Cod e, the civil aspects of all cases involving unfair labor practices which may inc lude claims for actual, moral, exemplary and other forms of damages, attorneys f ees and other affirmative relief, shall be under the jurisdiction of the Labor A rbiters. > The Labor Arbiters shall revolve such cases within 30 days from the time they are submitted for decision. > Recovery of civil liability in the administrative proceedings shall bar recove ry under the Civil Code. 2.Art. 290 : All unfair labor practices shall be filed with the appropriate agen cy 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 pr oceeding, the running of the period of prescription of the criminal offense here in penalized shall be considered interrupted. The final judgment in the administ rative 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 age ncy within 1 year from the accrual of such unfair labor practice, otherwise, th ey shall be forever barred. 3. Art. 228 : The criminal charge shall fall under the concurrent jurisdiction o f the Municipal or regional trial Court. 4. When is an unfair labor practice deemed to be purely an administrative offens e and not a criminal act? When the acts complained of hinges on a question of in terpretation 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)

2005 Pointers on Compromise: Any compromise settlement even on labor std. matters agreed to by parties w/ a ssistance of the BLR or the Reg.office of DOLE is final and binding upon part ies. Quitclaims signed while motion for recon was still pending with DOLE and witho ut leave of court are not valid (Veloso v. DOLE 2004 case) NLRC or any court shall not assume jurisdiction over issues involved therei n except: in case of non-compliance w/ compromise agreement or if there is pr ima facie evidence of fraud,misrepresentation or coercion. 2005 pointers: When compromise is violated, other party could either enforce compromise by a w rit of execution or regard it as rescinded and so insist upon his original dem and. 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 a nd 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 c ompany-dominated labor union and to disestablish the same. 4. Order to bargain ning agent. Penalties Art. 288 : Except as otherwise provided in this Code, or unless the acts complai ned of hinges on a question of interpretation or implementation of ambiguous pro visions of an existing CBA, any violation of the provisions of this Code declare d 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. Affirmative order to the respondent to bargain with the bargai

SUMMARY

UNFAIR LABOR PRACTICE OF EMPLOYER 1.Interfere,restrain or coerce employees in exercise of their right to self-orga nization. 2.Require as condition of employment that EE not join or withdraw from a labor organization 3.Contract our services performed by union members 4.Initiate ,assist or dominate w/ formation/administration of labor organization (including giving of financial or other support) 5.Discriminate w regards wages 6.Dismiss or prejudice EE for giving/about to give testimony under this Code 7.Violate duty to bargain collectively 8.Pay negotiation or atty s fees t o union as part of settlement of issue in the C BA 9.Violate CBA(Gross)

UNFAIR LABOR PRACTICE OF LABOR ORGANIZATION 1. Restrain or coerce EEs in exercise of their rights to self-organization (but Organization have right to prescribe rules w regard acquisition or retention of membership) 2. Cause/Attempt to cause an ER to discriminate against an EE 3. Violate duty or refuse to bargain collectively w ER 4. Cause or attempt to cause an EE to pay money or other things for services not to be performed including demand for fee for union registrations 5. Ask or accept negotiations of atty s fees from ER as part of settlement 6. Violate CBA (Gross)

2006 notes:these are just the common acts, there is no limit as to type of act d eviced by the employer or union to commit unfair labor practice UNION SECURITY

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 t ime of the signing of the CBA. Different types of union security arrangements: Open shop Open to everyone, a member can resign anytime

Closed shop Agreement whereby an ER binds himself to hire only members of the co ntracting union who must continue to remain members of the union in good standin g for the duration of the agreement as a for the continued employment. Union shop Only whereby an ER is permitted to employ a union-worker, but to reta in employment such worker must become a union member after some period and maint ain his membership therein in good standing for the duration of the agreement. 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. Agency shop An agreement whereby EE s must either join the union or pay to the uni on as exclusive bargaining agent a sum equal to that paid by members(to discoura ge free riders).

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 retentio n 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 cont racting union. > Membership in the contracting union is a condition for continued employment. The validity of a union security provisions is largely recognized; it is intende d to make the union strong that true collective bargaining may be assured. Statu tes recognizing the validity of closed shop agreements have been justified on th e 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) Validity Agreement and Effect on Freedom of Choice A union security provision is not a restriction of the right of freedom of assoc iation guaranteed by the Constitution. (Villar vs. Inciong) Contract Drafting and Interpretation of Provisions Union Security

1. A CBA provides : The union shall have the exclusive right and privilege to su pply 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 ob liged to terminate the EE s employment? No. The stipulation does not establish a c losed-shop agreement : Dismissal pursuant to a closed-shop clause must clearly a ppear 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 f ail to meet its requirements. The ER agrees not to employ any new EE unless he i s a member of good standing of the union provided such new EE meets the qualific ations 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 t he EE must remain a member of good standing of the union. And it is not clear th at membership in the union is a condition for continuation or retention of emplo yment. Stipulations of this nature are strictly construed; doubts are resolved a gainst the existence of the right to dismiss.

Closed Shop Agreement 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 labo r 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 othe r than the majority union at the time the closed shop agreement took effect. (St a. Cecilia Sawmills vs. CIR) c. Supervisors ineligible to join the majority union because of the membership t herein of EE s under their supervision. (BISCOM vs. PAFLU) d. EE s excluded from the closed shop by express terms of the agreement. These exc lusions applies to other types of union security arrangements, such as the agenc y 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 em ploy 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. B y reason of the agreement, he is dismissed. Is the dismissal valid?Yes. His dism issal was effected pursuant to the closed shop provision of the CBA. The validit y 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 di smiss the members of union? No. The closed shop agreement cannot be enforced aga inst EE s who are already members of another union at the time of the signing of t he CBA. To compel the members of a minority union to disaffiliate from their un ion and join the majority or contracting union would render nugatory the right o f 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 sho p stipulation. 3 of its members affiliated themselves with another union. When b eing dismissed, they claimed they were unaware of the contents of the CBA. Is th e contention tenable? No. Neither their ignorance, nor their dissatisfaction wit h the CBA would justify breach thereof or the formation by them of a union of th eir 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)

Maintenance of Membership 1. A CBA provides : Both parties agree that all EE s of the company who are alread y members of the union at the time of the signing of this agreement shall contin ue to remain members of the union for the duration of the agreement. 3 members o f the union resigned to join a new union. They were dismissed. Is their dismissa l legal?No. The contractual provision relied upon does not expressly provide tha t 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 u nion is a condition for continued employment. In order that an ER may be bound t o 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 r esolved 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 anothe r union and even filed a petition for certification election. As the CBA contain ed 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. W hen members seek the destruction of the organization to which they belong, they forfeit their right to remain as members. (Tanduay Distillery Union vs. NLRC) Does the expiration of the CBA preclude the dismissal of the guilty union member s? No. The expiration of the CBA did not cleanse from them from the acts of disloy alty. They committed such acts while the CBA was in force. (Id.) 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 stand ing ceases to be binding during the 60-day freedom period immediately preceding the expiration of the CBA. (Id.) 3. 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 th e clause. Is this valid? No. The maintenance of membership clause only applies t o EE s who are members of the contracting union at the time of the execution of th e CBA and to those who may thereafter on their own volition join the union. (Alc antara)

Agency Shop Art. 248 : EE s of an appropriate collective bargaining unit who are not members o f the recognized collective bargaining agent may be assessed a reasonable fee eq uivalent to the dues and other fees paid by members of the recognized collectiv e 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 app ly to the nonmembers of the recognized collective bargaining agent. 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 u nion 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 rec eive. The ER would not have compelled the EE were it not for the union s insistenc e. (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 wa s required by the closed shop provisions of the CBA with the union, he may not b e ordered to pay back compensation to such EE s although their dismissal is illega l. (NLU vs. Zip Venetian Blind)

STRIKES AND LOCKOUTS

Art. 263 : Workers shall have the right to engage in concerted activities for pu rposes 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 lockou t, consistent with national interest shall continue to be recognized and respect ed. Policy Statement In line with the policy of the State to encourage free trade unionism and free c ollective bargaining, workers shall have the right to engage in concerted activi ties for purposes of collective bargaining or for mutual benefit and protection. A similar right to engage in concerted activities for mutual benefit and protec tion is tacitly and traditionally recognized in respect of ER s. (Ilaw at Buklod n g Manggagawa vs. NLRC)

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. 2006 notes: there should be temporary stoppage of work coz if no stoppage ,then there s no strike even if there are already banners/picket. 2006 notes: to have a strike their should be a concerted activities. [ Labor dispute Any controversy or matter concerning terms and conditions of employ ment or the association of representation of persons in negotiation, fixing, mai ntaining, changing or arranging the terms and conditions of employment, regardle ss of whether or not the disputants stand in the proximate relations of ER s and E E s. (Art. 212) 1. Fruit Canning Co. has been requiring workers to render overtime work of 5 hou rs everyday for the past 6 months. Due to the refusal of the ER to stop this pra ctice, all the EE s refused to work overtime and left the plant after working 8 ho urs during the day. They reported for the regular work schedule the following mo rning. Is this a strike? Yes. It is a temporary stoppage of work by the concerne d action of the EE s by reason of a labor or industrial dispute. A labor dispute i ncludes any controversy or matter concerning terms and conditions of employment. 2. The of 10 Is the es. It EE s due to a dispute involving wages worked for only 8 hours a day instead hours in accordance with a practice which had been followed for 5 years. refusal of the workers to adhere to the 10-hours work schedule a strike?Y is a limited or partial strike.

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 cann ot afford to have its production or activities interrupted, mush less, paralyzed . Because of this threat or danger of loss, the company gives in to the demand o f the strikers, just so it can maintain continuity in production. (Philippine Ca n Company vs. CIR) Effect of Work Relationship EE s who go on strike do not quit their employment. It is a mere temporary stoppag e of work. The declaration of a strike does not amount to renunciation of the em

ployment relation. The relationship of ER and EE continues. (Rex Taxi vs. CIR) D uring 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 s trike remains but the effects of employment are suspended, hence, a striking EE, as a rule, is not entitled to his wage during a strike. Avoidance of Strikes 1. Pacific measures must first be exhausted before strikes are to be declared. S trikes and other coercive means of settling the dispute are deemed justified onl y when peaceful alternatives have proved unfruitful in settling the dispute. (PH ILMAROA vs. CIR) 2. The union sent demands for the dismissal of a foreman on grounds that he malt reated an EE. The company refused to dismiss the foreman but reopened his case i n the fiscal s office. Because of the company s refusal, the union went to strike. I s the strike legal?No. The demand for the dismissal had been accorded the attent ion it merited. (NLU vs. CIR)

Protection of 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 ri ght to strike. (Art. 248) 3. The use of strike breakers is prohibited. (Art. 264)

Definitions 1. economic strike Intended to forge wage and other concessions from the ER, whi ch is not required by law to grant. (Consolidated Labor Association vs. Marsman) Also known as bargaining strikes. 2. 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 p ractices. 3. sympathetic strike One in which the striking EE s have no demands or grievances of their own, but strike for the purpose of property of directly or indirectly aiding others, without direct relation to the advancement of the interest of the strikers.

2006 notes: in case of ambiguity, the court shall interpret strikes to be in fav or of management not of labor.

Tests in determining the existence of an unfair labor practice strike:

There are two tests in determining the existence of an unfair labor practice str ike: 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 war ranted such belief in good faith although subsequently as not committed. (Id.) I t 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 i nducing 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 ec onomic 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 whe n a strike for greater benefits is called off in anticipation of negotiations an d eventual agreement but is resumed upon the commission by the ER of acts of dis crimination against the leaders of the strike. (Consolidated Labor Association v s. Marsman) Non-Conversion Strike to Lockout A strike is not converted into a lockout by the filing of notice of offer to ret urn 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 sympatheti c strike is illegal.

2006 notes:once there s run-away shop, the area of strike is enlarge. 2006 notes:everything you took up with NCMB is a privilege communication, partie s cannot use it in court.

ECONOMIC AND UNFAIR LABOR PRACTICE STRIKE 1. The Labor Code recognizes only two valid grounds for the declaration of a str

ike. 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 illegali ty. (Azucena) 2. When does a deadlock arise? A deadlock arises when there is an impass which pr esupposes reasonable effort at good faith bargaining which, despite noble intent ions, does not conclude the agreement between the parties. Where for instance, t he 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. Secretar y of Labor) 3. Legality of strike is not dependent upon the ability of management to grant d emands. 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) Give some examples of strike having a lawful purpose. 1. Strike incident to collective bargaining. 2. Self-defenses i.e. strike held against the formation of a company dominated u nion. (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 F ilipino Managers and Supervisors Association vs. CIR) [However, a strike for uni on recognition is through a certification election. 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 arran gement. (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 c ondition of the company. What the union may only require are up-to-date financia l information normally submitted to relevant government agencies such as balance sheets and financial statements. (Sec. 5, Rule XIII, Book V, IRR s)

REQUISITES FOR A STRIKE TO ENJOY THE PROTECTION OF LAW: 1. A notice of strike or lockout with the required contents, should be filed wit h the DOLE, specifically the regional branch of the National Conciliation and Me diation 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 empl oyment 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. 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 settle ment of the dispute. A part of their duty to bargain, they are obliged to partic ipate fully and promptly in the NCMB meetings. 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 maj ority of the total union membership in the bargaining unit concerned. Similarly, a lockout needs the secret ballot concurrence of majority of the directors or p artners. 5. The result of the strike or lockout vote should be reported to the NCMB at le ast 7 days before the intended strike or lockout, subject to the cooling off per iod.This is intended to give the DOLE an opportunity to verify whether the proje cted strike or lockout really carries the imprimatur of the majority of union me mbers or board of directors. A strike or lockout held within 7-day waiting perio d is plainly illegal. (Lapanday Workers Union vs. NLRC) 6. No strike or lockout shall be declared without the labor organization or the ER first having bargained collectively i.e. exhaustion of grievance procedure be fore declaration of strike. (Art. 264) 7. No strike or lockout shall be declared after assumption of jurisdiction by th e President of the Secretary of Labor. (Art. 263) 8. No strike or lockout shall be declared after certification or submission of t he dispute to compulsory or voluntary arbitration, nor may a strike or lockout b e declared during the pendency of cases involving the same grounds for the strik e or lockout. Non-observance of the above procedural requirement makes strike illegal. (NFSW v s. Ovejera)

GUIDELINES IN THE CONDUCT OF STRIKE: SUBSTANTIAL GUIDELINES: Negative Rules: 1. strike not based on intra or inter- union dispute 2. strike not based on violation of CBA (except if Gross) 3. not based on trivial ground (petty walang hinundan like causing stoppage due to change in seat plan) JBL Reyes once said that legality is not made to depend on reasonableness of the strike.

4. not based on wage distortion Positive Rules: 1. based on CBA deadlock or ULP 2. based on serious grounds 3. purpose and means must both be lawful

PROCEDURAL GUIDELINES: Negative Rules: 1. strikes must not violate before hand the duty to bargain 2. no strike must be conducted on a ground subjected to compulsory or voluntary arbitration 2006 notes: however, if new issue that has not been submitted to voluntary arbit ration ,then you can go on strike. 3. no violation of no strike clause , so dapat ULP strike dapat

Positive Rules: 1. there must be a strike notice with Dept of Labor and NCMB 2006 notes:failure to give copy of such notice to management renders strike ille gal 2. observance of cooling off period (not applicable if there is union busting) ULP is 15 days Deadlock is 30 days 3. observance of strike vote 4. observance of waiting period 5. compliance with duty to conciliate and mediate

2006 notes: strike zone must be 50 meters PROHIBITED PRACTICES (264): 1.No strike or lockout shall be declared: -Without first having bargained collectively -Without first having filed the notice required -Without first having obtained and reported to the DOLE the necessary strike or

lockout vote. -after assumption of jurisdiction by the President or by Secretary -after certification or submission of dispute to compulsory/voluntary arbitratio n. -pendency of cases involving same grounds for the strike or lockout (but if not same ground,strike or lockout may be declared) 2. No person shall obstruct, impede or interfere with by force, violence, coerci on, threats or intimidation any peaceful picketing by EE s during any labor contro versy or in the exercise of the right of self-organization or collective bargain ing, or shall aid or abet such obstruction or interference. 3.no Er shall use or employ any strike breaker nor shall any person be employed as a strike breaker. 4. 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. 5. No public official or EE including officers and personnel of the AFP or the P NP, or armed person, shall bring in, introduce or escort any individual who seek s to replace strikers in entering or leaving the premises of a strike are, or wo rk in place of strikers. The police force shall keep out of the picket lines unl ess actual violence or other criminal acts occur.

Officer who knowingly participating or commit illegal acts ,he is deemed termina ted (Samahang Manggawa v Sulpicio Lines 2004 case), whereas , a worker cannot ip so facto be terminated by merely participating in illegal strike since there mus t be proof established that he commits illegal acts during the strike. Means and Methods Even if the purpose of a strike is valid, the strike may be held invalid where t he means employed are illegal. (United Seamen s Union of the Philippines vs. Davao Shipowners Association) The use of violence, intimidation, restraint or coercio n in carrying out concerted activities, which are injurious to the rights of pro perty, 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 il legal (Insular Life EE s Assn.vs. Insular Life) 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 a ttended 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 stri ke may be considered still legal. (Shell Oil Workers Union vs. Shell) If some management officials were unable to leave the premises because of a stri ke, 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) 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 un ion 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 emplo

yment or the association or representation of persons in negotiating, fixing, ma intaining, changing or arranging the terms and conditions of employment, regardl ess of whether or not the disputants stand in the proximate relation of ER s and E E s. (Art. 212) 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. 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.

IMPROVED/REDUCED OFFER BALLOTING 2006 notes:applicable only for economic strike,not applicable in ULP strike sinc e latter cannot be compromise since imbued with public interest. Strike In an effort to settle a strike, the DOLE shall conduct a referendum by s ecret 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 o ffer, the striking workers shall immediately return to work and the ER shall the reupon readmit them upon signing of the agreement. 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 lo ckout. When at least a majority of the board of directors or trustees or the par tners 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 shal l thereupon readmit them upon signing of the agreement. (Art. 265) CONSEQUENCES OF CONCERTED ACTIONS

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 suffic ient ground for termination of his employment, even if a replacement had been hi red by the ER during such lawful strike. (Art. 264) However, if the strike is il legal.: 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 i llegal 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 il legal strike. There must be proof that he committed illegal acts during a strik e. (INPORT vs. NLRC) Who Declares Loss of Employment Status The law grants the ER the option of declaring loss of employment status. 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 (PRIVIL EGE OF GOOD FAITH ERROR) Strikers who conducted an illegal strike on the good-faith belief that the compa ny had committed unfair labor practice, which turns out to be false, do not forf eit their employment. They are entitled to reinstatement. (Ferrer vs. CIR)

Strike not Marked with Good Faith Strikers who conducted a strike which is illegal and not marked with good faith forfeit their employment. (Reliance Surety vs. NLRC)

REMEDIES ON PROHIBITED PRACTICES: 1.File ULP complaint + cease and desist order from NLRC 2.File complaint in violation of 264 (allege it) 3.File criminal case under 272 4.File injunction suit to restraint/enjoin prohibitive acts under Rule V w/ the NLRC(no need for a bond ,only a proof and it can be granted ex parte) APPLICATION OF THE PARI-DELICTO RULE 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 restoratio n of the status quo ante and brining back the parties to their respective positi

ons 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 prin ciple that a fair day s wage accrues only for a fair day s labor. (SMB vs. NLU) 2. For an unfair labor practice strike, the right of the workers to receive back pay depends on whether they are voluntary or involuntary strikers. 3. 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) 4. 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 serv ice, they should not get paid; this in accordance with the no wok no pay rule. ER s Right to Hire Replacement during Strike Discuss the principles governing the hiring of worker replacements during a stri ke? 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 th e 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 t he 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 t hem as soon as the strikers request reinstatement in their previous position. (I nsular Life EE s Assn. vs. Insular Life) Damages Union officers may not be vicariously held liable for illegal act of strikers. T he rule of vicarious liability no longer applies. (Benguet Consolidated vs. BCI EE s Assn.) Huntington v. NLRC (2004 case) Certificate of Non-forum shopping is mandatory and should accompany pleadings filed b4 NLRC. It is still valid if not accomp any pleadings but was filed w/in reglementary period or if not ,still valid sin ce complaint form did not require such undertaking since they simply filled in the blanks provided it is substantial compliance and with valid reason. Rufina Patis v. Alusitain(2004 case), it order for a labor law to cover EE such claimant must still be the EE of ER at time statute took effect, or claimant had complied w/ requirements for eligibility under statute for such retirement benefits. PICKETING, SLOWDOWN AND OTHER CONCERTED ACTIVITIES 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 info rm the public concerning the dispute. Picketing includes stationing persons at t he site of the labor dispute for the purpose of exercising coercion or intimidat ion on other. However, the requirement of the law is that the picket must be a m oving picket.

PICKETING AND LIBEL LAWS The mere fact that the language employed by the picketers is far from being cour teous and polite does not give rise to a cause for libel and damages. (PCIB vs. Philnabank EE s Assn.) Absence of an ER-EE relationship does not make picketing illegal. (De Leon vs. N LU) 2006 notes: no libel in strike since language in strike is filled with emotions ,and strikes are considered privilege communication. RESTRICTIONS 1. Art. 264 : No person engaged in picketing shall commit any act of violence, c oercion or intimidation or obstruct the free ingress to or egress from the ER s pr emises for lawful purposes, or obstruct public thoroughfares. 2. A picketing labor union has no right to prevent EE s of another company from ge tting in and out of its rented premises, otherwise it will be held liable for da mages against an innocent by-stander. (Liwayway vs. Permanent Concrete Workers U nion) 3. Picketing as a concerted activity is subject to the same limitations as strik e, particularly as to lawful purpose and lawful means. Like the freedom of expre ssion 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 pro tection associated with free speech. (Security Bank EE s Union vs. Security Bank)

2006 notes: Picketing is grounded on freedom of speech , it may be committed by a lone solitary employee and no need to comply with requirements (procedural) si nce it is a privilege given by constitution and as such it cannot be enjoined un less applying the clear and present danger rule. 2006 notes:while on a strike, it is grounded on right to self organization and t hat it is committed by a collective of workers that may or may not be a union, b ut it must comply with the requirements set by law and it can be enjoined by the secretary of DOLE. 2006 notes: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 c ommunication 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 d ispute. (PAFLU vs. Cloribel)

SLOWDOWN Method by which one s EE s, without seeking a complete stoppage of work, retard prod uction and distribution in an effort to compel compliance by the ER with the lab or demands made upon by him. 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 othe

r work. (IBM vs. NLRC)

BOYCOTT It is the concerted refusal to patronize an ER s goods and services and to persuad e others to a like refusal. Is a boycott lawful? EE s may lawfully exert economic pressure on their ER by mean s of a boycott, provided they act peaceably and honestly.

2006 notes:Are strikers entitled to strike duration pay? NO, a lawful strike is a matter of right. When you do something lawful, the stand of court is to leave you where you are since both is suffering loss. --ee who suffered loss who is not part of union and who do not participate ,he t oo bears his own loss since he is part of the company set up. --however, in Davao Freeworkers v CIR ,the SC award a strike duration pay as a p unitive pay.

INJUNCTIONS LABOR DISPUTES(STRIKES) ARE NOT SUBJECT TO INJUNCTION.

EXCEPTIONS: However, the protective force of the law will be applied when prohibited or unla wful acts are being or about to be committed that will cause grave or irreparabl e damage to the complaining party. 1.third party suffered a grave ,irreparable injury (innocent bystander rule whereb y such 3rd party has no privity of contract or relation to the employees who str iked.) 2006 notes:in liwayway case: since liwayway and manila bulleting is in same comp ound and since employee s of bulletin are picketing outside,the clients of liwaywa y could not enter. As such liwayway may go to court (not NLRC) since no ER-EE re lationship exist in order to enjoin such strike. 2.hospitals 3.banks 4.industries that are indispensable to national interest.

TEMPORARY RESTRAINING ORDER The Code allows the issuance of a temporary restraining order without prior noti ce to other parties concerned. The issuance is predicated on complainant s testimo ny or petition under oath that unless the order is issued without notice, substa ntial or irreparable injury to complainant s property will be unavoidable. A tempo rary restraining order, however, automatically expires after 20 days. Requirements: 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 ir reparable 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 i ts 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 protec t complainant s property.

JURISDICTION TO ISSUE INJUNCTION Lies not with the regular courts but with the Commission. (Maria Cristina Fertil izer Plant EE s Assn. Vs. Tandayag) However, regular courts may issue injunction i f it is to prevent strikers from preventing to lawful movement of 3rd parties. ( Republic Flour Mill Workers Assn. vs. Reyes) INJUNCTION IN NATIONAL INTEREST CASES

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 Presid ent 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 a rbitration. (Art. 264) The Code vests the President and the Secretary of Labor a lmost unlimited discretion as to what industries may be considered indispensable to national interest.

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) 2 Certification of Labor Dispute : Automatic Injunction Such assumption of the Secretary or certification to the NLRC for compulsory arb itration has the effect of automatically enjoining the intended or ongoing strik e or lockout as specified in the assumption or certification order. (2004 Azucen a) 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 under taken despite the issuance by the Secretary of Labor of an assumption or certifi cation order becomes a prohibited activity and thus illegal. (Zamboanga Wood Pro ducts vs. NLRC) Not only union officers but also union members who defy return-t o-work order are subject to dismissal for participation in an illegal act. (St. Scholastica s College vs. Torres) 3 Effect of Certification for Compulsory Arbitration The certification for compulsory arbitration overrides under unresolved proceedi ngs before the NLRC. Proceedings in the injunction and unfair labor practice cas es filed by the ER necessarily have to be suspended to await the outcome of the compulsory arbitration proceedings. (Bagong Bayan Realty vs. Ople) 4 Incidental Issues May the Secretary of Labor, in the exercise of his jurisdiction under Article 26 3 (g) takes cognizance which is merely incidental to the labor dispute over whic h 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 C ollege vs. Torres) ?? ?? ??

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