Labor 2 Integration

LABOR 2 Integration Transcript | Prof. D.
Disini | 2nd Sem, AY 2009-2010 Page 1 of 21
Part One: Labor Relations Policy

CONSTITUTIONAL FOUNDATION LABOR POLICY RELATION 2. Definition of terms 2 sources 1. Art 212 2. Implementing rules While some of IR provisions are word for word repro of what is found in LC, note that there are certain new terms not found in LC. And as you read 212, pay particular attention to means and includes Includes: not complete def but rather dictionary definition. Only 4 or 5. Means: Courts ruled that is complete. But then, begin where is the roadmap of law, i.e. statutory framework of law. Map out where are the trees and forest. Trees: specific provision of law, operative provision Forest: entire structure of law So, you begin with constitutional foundation and thats Bill of Rts Art3,S8 specifies: 1. Rt to self organization in both public and private sector of economy 2. Where the rt is recognized by law, code limitation which is purposes not contrary to law Art18, S3 For purposes of Labor Relation law, there are 4 areas of concern 1. Recognition of rt to self-org 2. Recognition of rt to bargain collectively 3. Recognition engage to peaceful concerted activities
Part Two: Worker Right to Self-Org

LABOR CODE PROVISIONS I. Begin with Art 243. Look at its structure, first says, all employees enjoy right of self-org BUT a closer reading of provisions of law, not all employees are classified similarly. First group: for purposes of self-org and purposes of CB. Second group: for purposes of mutual aid and protection. Note when A243 recognizes the rt to self-org, it makes a distinction as to the purpose for self-org. 1. CB 2. Mutual aid and protection. The distinction must be read in the light of freedom of association clause of the constitution. When the law denies RSO, it is limited only for CB, but you cannot deny right for purposes of mutual aid and protection. Nature or purpose of establishment is totally irrelevant, right to self-org is recognized and extended, regardless of nature or purpose of establishment, whether for profit or not, the right exists. A fundamental change in the law, no more distinction whether or not employer is profit or non-profit institution. 2 terms actually used: 1. Employer, 2 employees, 3. Labor organization. Go back to 212 and cross refer to WORKERS ASSN not found in LC but in IR. Why? Bec 1st group says Labor Org for purposes of CB, 2nd group says LO for purpose of mutual aid and protection and that is workers assn which is defined in the IRR
II.
Art 244. Refers to employees of GOCCs in accordance with general law of incorporation namely Corpo Code. But note that EO 180 recognizes right of government employees and by definition employees of GOCC with original charter (the law that created the GOCC). Right to self-org is recognized in EO 180.
A. Employees of GOCC organized in accordance with Corpo Code.

Two categories covered by EO 180 a. Does not speak of ee in govt service performing purely govt functions. b. Neither does it speak of ee of GOCC with original charter. These are covered by EO 180, you learned about this in Labor 1. I.
A. Managerial employees (Art 212 and 82) statement of functions

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Art 245. Speaks of 2 types:
LABOR 2 Integration Transcript | Prof. D. Disini | 2nd Sem, AY 2009-2010 Page 2 of 21
B. Supervisors to form unions for purposes of CB and you will note that managerial and supervision are defined in
212 of LC. I call your attention that these are technical terms with technical definitions. I. Art 269 nonresident aliens. Meet two requirements of law: 1. Valid working permit 2. Rule of reciprocity meaning the country of the non-resident alien extends the same benefit and privileges to citizens of Phil Art 246 on non-abridgement of right No one can restrain, coerce, unduly interfere with YOU HAVE A COMPLETE ROADMAP NOW OF THE STATUTORY FRAMEWORK ON RT OF SELF-ORG. NOW. I REPEAT, IT IS ART 243 THAT YOU SHOULD NOTE VERY CAREFULLY, BECAUSE THE NATURE OF ESTABLISHMENT WHETHER ORGANIZED PROFIT OR NON-PROFIT. Notice carefully self-organization for purposes of CB for mutual aid and protection. For both cases (either case), the right exists regardless of purpose or nature of establishment. RO is always there, CB lang ang pwedeng tinatanggal. FUNDAMENTAL CONSTITUTIONAL DOCTRINE ON SELF-ORG: 1. Its both constitutional and statutory guaranteed right. 2. Therefore, right of paramount value which cannot be denied to the worker on simple and nebulous grounds. Right is specifically ordained and not merely a derivative right compared with American constitution. 3. Its not a negotiable issue But the fundamental doctrine you should know: nature of the right: a. guaranteed constitutional and statutory b. Paramount cannot be denied on nebulous ground. c. Not subject of negotiation. WORKER QUALIFICATION
I.
1. It must be an employee. Go back to 212 for definition of employee. Note that Art 277(c) clearly states that the
qualification of a worker is that on the first day regardless of tenure or status, qualifies for union membership as an employee. Invite attention however to Art 249 because it also states that union has right to promulgate rules and regulation for admission and retention, meaning therefore, reconcile the 2 insofar as ____. The union cannot touch 277 (c) but they can add, subject to rule that it should not be arbitrary. 241 (e) lo shall not knowingly admit for membership a worker who belongs to subversive organization. This provision is of doubtful validity today, because no favor on implied repeal but subversive law has been amended. That provision of LC no longer is viable. Clear? Now.
2.
EXTENT scope of FREEDOM OF ASSOCIATION
1. Art 243 and 246 speaks of right to join, form or assists LO of their own choosing. That provision of LC and 2. However, 2 cases there is also a negative recognition a. Nick joy (?) fundamental doctrine: freedom of choice on part of workers won to exercise right and b. THE BETTER CASE IS Reyes v Trajano. Court said using one fundamental rule, freedom of choice and
power. The law will not compel a worker to exercise a rt granted by law. Its the worker who makes a choice WON he wants to exercise right, the law will not compel worker one way or the other. I call your attention however, that if the worker exercises in negative fashion and theres valid union security, the worker who exercises in negative will pay consequences namely: 1. Possible loss of employment because of union security provision. Unless exempted by law, he will lose employment. While positive and negative recognition of right. (Not to exercise) Affiliate and disaffiliate anytime Broadly interpreted by courts. 1. Pan American World Airways Rt to SO includes rt of worker to choose who will be their leaders for a. union administration b. collective bargaining purposes No one can interfere in choosing their leaders maybe 2. Union of Supervisors v Secretary Protects whatever union leader will say in defense
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Constitutional are coached in very positive terms.
includes rt to join, affiliate and disaffiliate as integral parts of freedom of association
LABOR 2 Integration Transcript | Prof. D. Disini | 2nd Sem, AY 2009-2010 Page 3 of 21 HOW TO ENFORCE THE RIGHT: violation of both constitutional and statutory. Remedy provided for in 248 and 249 1. Art 248 refers to ULP that may be committed by employer 2. Art 249 refers to ULP that may be committed by LO Go back to 212 for terms of employer, employee and LO Under Art 290, the prescriptive period to bring cause of action is 1 year from date of approval. Violations and sanctions provided for are in 288 and 289. Right violation protection 289 identified parties liable in the event that there is ULP At this point in time do you have any questions. CASE MATERIALS. FUNDAMENTAL RULE: Right to SO is both constitutional and statutory 1. Even non-profit institutions, employees now covered by LC (Far Eastern) Court emphasized that in Art 243 the purpose of establishment as non-profit totally irrelevant. Managerial Employees 2. Samson v NLRC Managerial employees defined by both 212 and statement of functions not of job descriptions but the way they are exercising their functions. If you distill the law you will come out with 2 doctrines. a. Managerial ee do not enjoy RSO for purposes of CB b. Managerial ee although denied RSO for CB cannot be denied to constitutional rt to assembly and assn for mutual aid and protection. c. Any exemptions/prohibitions provided for in law must be strictly construed. Intent of law is to broaden area of concern. Thus if the employees function is to merely administer and implement: by definition he is not managerial. The managerial employee is not a managerial employee. Cooperatives
a. Batangas Electric Company and CENECO. Inaantok na ko. Where an individual merely employee or
only employee and no more, the individual worker enjoys right of SO which means where worker is purely worker/employee and nothing more, the worker enjoys right of SO. Where worker is both employee and member of the cooperative, the rule is reversed. Where individual one and the same time member of the cooperative. Cannot join union for purposes of CB on theory that an owner cannot bargain with his own self all those two doctrines where reiterated in ELECTRIC CASES CENECO Added a rule that its not right in the participation of management thats deciding factor, but the 1 act of ownership not the participation AND 2 worker may choose to resign and withdraw Both employee and cooperative can at anytime withdraw his union membership or resign from the cooperative bec by so doing, he is making a choice bet the two. Prefers to join union other than member. However if rule clearly state the method/procedure and the rule is valid. Comply with rules and regulation. Meaning therefore that rules 1 and 2 are valid all throughout and resign any time and exercise the right. Resign in order to exercise right.
b. c.
Supervisors: fundamental rule who is supervisor? Crucial question you have to answer. Look at structure and component. Components of the definition: a. In whose behalf is the individual acting? Meaning the claim supervisor is acting in interest of employer. In other words, he is not acting in his own behalf but on behalf of employer and term employer again defined in LC. Which means that supervisor by definition is acting in interest of employer b. Statement of acts enumerated that supervisor is doing. What those acts are? 2nd component of definition? This involves memory work. See HTSLRDAD c. EFFECTIVE RECOMMENDATION 1) Recommendatory nature, 2) require use of independent judgment and not clerical in nature. Intent of law: grant supervisors but define strictly who is a supervisor. d. Note and memorize. 2 components to separate: 1 acting in whose behalf and 2 functions performed and 3 when functions are performed, independent judgment not merely clerical in nature, but effective. Statutory guide whether individual is supervisor or not. Individual becomes rank and file workers. Imposes a restriction. Composed exclusively of supervisor. Manager v Supevisor. Amendments to the law: a. By automatic operation of law: disqualify the member b. Sup and r&f can now affiliate with same national union even if there is a direct supervision.
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LABOR 2 Integration Transcript | Prof. D. Disini | 2nd Sem, AY 2009-2010 Page 4 of 21 Be aware of amendment and its effect on 3 cases as to supervisor limitation: compose exclusively in light of Adamson, Atlas and La Salle 1. Sup and rf can now affiliate in on national union. It can now form, subject to exception that it must be composed mainly. In light of amendment. Supervisors union and r&f union are under the supervision. Amendment allows that now. DID AWAY with doctrine of 3 cases. 2. Drop them in case of mixed membership (still does not make a union). Slazenger and Toyota are cured by amendment. 3. Not the title/nomenclature that attaches right, BUT the employees supervisor actually doing. Not job description. It is not determinative. 4. Power is present but its not effective. The recommendation is subject to review by higher authority. Power may be present but not effective and therefore, not a supervisor by definition. 5. Factual issue: problem in labor law. Supervisors are problem. 6. Distinguish between supervisor and manager and managerial employee 7. Distinguish between supervisor and rank and file. can now affiliate. Background of Adamson, Atlas and De La Salle Components are definition 1. In whose 2. what acts 3. Effective use of judgment and not clerical in nature. Power is present but not effective subject to review by higher authority Religion Best case to use: Kapatiran v Calleja because there the court said that if a worker wishes to exercise constitutional guaranteed right to self-organization. Exercise conflicts with the doctrine of the faith or tenets of religion choice made by the worker the religious tenets/doctrine cannot stand in the way by way of obstacle. Nevertheless, doctrine says that choice was made by a worker. Based on statutory right. Cannot interfere with manner of choice/s. Victoriano v Elizalde: be careful. Decided on basis of amended law. Specifically excluded members of INC from coverage of law. But recall that the amendment was not incorporated although Mr. Azucena citing venerable Bernas. Conflict bet freedom of contract and religion. Religion prevails over contract rights refer to the fact of CBA closed shop arrangement. In case of conflicting values: religion tenet v constitutional and stat guarantee to RSO: the latter prevails. Unless sure how to use it, avoid Victoriano because Kapatiran is neutral clear bec it left choice to the worker. In Victoriano, there was union shop and amendment. WHAT DO YOU MEAN BY RELIGION? Im not qualified, I wont talk about religion! Organized or charismatic. Better still what if he doesnt believe? Atheist or agnostic. Refrain from asking this question. Clear? No. Confidential Employees Before I go deeper, remember simple rule. ITS THE ACCESS TEST (San Mig v Laguesma) distinction on access of individual with re information. 1. Info affecting labor mgt relation 2. Info not affecting labor but confidential in nature 3. Integral part of job and not merely incidental FRAMEWORK: a. Who is a confidential employee? b. Distinction between access to information that is labor management relation matters or non labor relations manner, both of which are confidential. Know not only access test but cumulative test. San Mig v Laguesma doctrine. The employee 1) by definition is a confidential employee and 2) that same individual assist another individual who formulates, implements and policies. For labor management relation matters 1. Confidential nature integral part and not incidental part. 2. Assisting person who formulates etc Even if confidential and assists another but not labor management relation matter. Right to SO exists and cannot be denied. If your access has nothing to do, then the right exists. The question is PEAR CASE not all legal secretaries. May not have access to all documents, it is unfortunate that they have access. The court took very liberal interpretation. Not correct doctrine. The correct one is SAN MIGUEL the rest are plain, well, Supreme Court can be the court of last error. I say this because Im before intelligent students. But even if you tell on me, the entire UP Law faculty will come to our defense. 1. Avoid cases that will confuse you. E.g. necessary implication 2. Cumulative test rule. Integral part not merely incidental. 3. What is the cumulative rule.
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LABOR 2 Integration Transcript | Prof. D. Disini | 2nd Sem, AY 2009-2010 Page 5 of 21 Security Guards Nowhere in LC can you find security guards because 245 has been amended. Old LC prohibited security guards on the theory that they cannot have double loyalty. But when amendment was made. Remove the entire content and placed new content. The Sc now interpreted to have a restored right which means, the MERALCO doctrine. Right to join labor organization according the rank and status but bear in mind in they were not employees of intermediary thats why problem arose. Direct employees of MERALCO. They will now join r&f and supervisory. Back to old problem. But thats not SCs problem. Calling attention because judicial doctrine. Bear in mind that for ALIENS there are only two rules 1. Valid working permit 2. Reciprocity NON-EMPLOYEES HAVE NO RIGHT. Singer Sewing Machine. (cited in Republic) Done very fast but it is complete. We have traced the stature map. Nothing was left and every identifiable provision was included. Its a COMPLETE SUMMARY.
Part Three: Labor Organization

Statutory roadmap Art 212 1. Definition of labor organization (Art 211 and 254) 2. Policy statement and declaration Procedures for union registration 234 Independent unions 234A Affiliate 237 Federations and national unions Cancellation already amended .long enumeration no longer exist. Only 3 grounds now. Although IR is still highly questionable, amended in the law. 238 239 Now Definitions Components: 1. Labor unions: Composed of employees - Purpose in whole or in part for the purposes of collective bargaining which means that it may have plural purposes PROVIDED one refers to collective bargaining and the case of Airline Pilots that the thrust of definition refers to purpose not that employees only are members of union. The definition says that it is an assn of employee but SC determined that the meaning of term ee is not limited to employee of only one employer. The thrust of definition is on purpose. As long as one of the many purposes, the union remains to be a labor union. 2. Legitimate labor union keyword: registration with DOLE. What confers legitimate status on part of labor union. Non stock, non profit with SEC but not legitimate insofar as Lc is concerned because youll have to reckon with 242 which now says that the right is extended only to legitimate lo but read 242 in 212 but based on DOLE registration and not with any other. Classic case is Cebu Seamens valid under SEC but not under LC> note the law did not define what is an illegitimate labor organization. The fact of non-registration does not mean it is automatically illegitimate. 3. Company union is a union the formation, administration of which is assisted by employer or receives financial or other support from employer. Read 247 because thats what defines it. 4. Lastly workers assn: composition is employees differ in purpose because for mutual aid and protection. Defined and catalogue as you need it to understand. Now go back to 211 bec 1. it is a statement on recognition that unions are valid institutions in Phil society and 2. theres an ascribing a function of the union. Instrument of democracy and promotion of social justice. 3. Strong and united labor movement. Note the law was amended. Strong and united. One company and one union is no longer the policy today. While DOLE encourages such, the law recognizes several union in several establishment as a possibility. An exception to one company and one union. NEXT TIME; read carefully 234, 234-a, 237 and distinguish 237 from national trade union center because not synonymous from federation. 234 refers to independent union. 234-a grant of legitimate status only of a restrictive; only for pet cert but not rights in 242. Finally, note that careful when are the financial statements part of the document because there are exceptions to the rule.
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LABOR 2 Integration Transcript | Prof. D. Disini | 2nd Sem, AY 2009-2010 Page 6 of 21 READ BLACK LETTER LAW SHAKE HANDS ATTITUDE WITH THE CASES GET A 3. 11 March 2010 The Chapter on LO is one of the longest in your outline. However, you can abbreviate and consolidate it but first of all, good working knowledge of stat framework of law. i. DEFINITION Art 212g refers to LO, look for two components: 1 composition (union / assn of employees) and 2 purpose of organization (CB / dealing with employer concerning terms and conditions of employment) Art 212h LLO and as you read def of LLO, your focus should be registration BUT WHERE? DOLE! Art 212 company union and forced to read 248d bec they are related. Note: focus on def is the ERs influence on that union: 1 organization, 2 administration and 3 financial support ii. POLICY DECLARATION A. 211 B and A Main area of focus 1. Preferential use of voluntary modes of dispute settlement 2. Role and function in society 3. Participation in decision making process A. Limited use of labor injunction. B. Tripartism as mode of dispute PROCEDURE FOR REGISTRATION Art 234, 234-A and 237 But your guide is ability to make distinction and when to use 234 compared with 234-A and secondly, 234 and 234-A on one hand and 237 on the other. I.e. Art 234 v 234-A and then 234 + 234-A v 237 Art 235 Application for reg and action on it and within 30 days from filing with BLR or LRD in regional offices Art 236 Appeal procedure: LRD in RO denying registration within 10 days from receipt of notice thereof Art 239 has been amended. No need to read in orig form. Read as amended and note that amended concerns two areas: 1. Voluntary cancellation new provision Requirements: a. 2/3 vote of all members to dissolve in a general membership meeting b. Application to cancel the registration: submitted to board of org and attested to by the president 2. Involuntary (violation of law) - Cancellation of cert of reg by provision of law - the act of cancellation is attributable to union a. Misrepresentation and fraud: refers to constitution and bylaws (i.e. basic documents which brought union into being) b. Misrepresentation and fraud in re election matters Common to both kinds of involuntary dissolution: misrep and fraud Difference as to the area of concern: 1. Basis documents 2. Election of union officers Art Art Art Art Art 270 248 241 275 254 foreign activities union security rights and condition on union membership. on tripartism on limited use of labor injunction
This stat framework that you must have good working knowledge on. Read it very carefully. You will not get lost in the exam. DEFINITION OF LLO
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LABOR 2 Integration Transcript | Prof. D. Disini | 2nd Sem, AY 2009-2010 Page 7 of 21 Keycase: Airline Pilots Assn where SC said: the focus or emphasis of definition is on PURPOSE which is stated to be in whole or in part for CBA and not that they should be employees only of a particular employer. Question of MIXED UNION MEMBERSHIP A union of sup must be exclusively of sup and r&f must be exclusively. Slazinger and Toyota: the doctrine remains. Its not an LO by definition. BUT note the amendment in 245-A (when ee who is not part of CBU is part of LO, all union has to do is to drop them from union membership) Legitimate only one word: registration with DOLE. Only reg with some other govt agency does not confer legitimate status. Call attention to Art 234-A because labor union that is chartered affiliate of legitimate nation union. Legitimate status only limited. ONLY FOR certification election. But if it wants to attain all 242 rights, it must file all necessary documents before it can avail. Distinction made by amendment: only confers limited legitimate status because it is chartered by a legitimate national union. Limited only to filing only pet for cert elect, not enjoying the rights mentioned in 242 of LC. For the union to enjoy mentioned in 242, it must file all other supporting requirements in addition to charter certificate. 242-a merely conferred legit labor status only in a limited way i.e. purpose of filing a petition for certification election. Distinguish 237 (reg requirements of national union or confederation of unions of national status) OR 234 (labor unions that are not federations by definition) New decision: National trade union cannot issue charter cert bec law not recognize not trade union center. Bear in mind, law is making a distinction between 237 (national union) and trade union centers. (234-A) UNION REGISTRATION Key to understanding any problem involving union reg is to be able to distinguish very clearly whether you can avail provisions of 234 (indep union that are not trade union federations) bec 234 refer to indep locals whereas 237 refers to federations or national trade union centers. AND Art 234-A refers exclusively to the registration requirements of a union that is a chartered affiliate of a legitimate national union. Note particularly the requirements. Fundamental distinction 237 need of a support that there are 10 locals each legit and recognized BR in establishment located 234 percentage of membership that supports union registration 234-A union reg is abbreviated bec intend of law is to encourage unions to affiliate. Note distinction between each requirement. Note the requirement that every application must be duly attested and certified. This requirement of OATH and ATTESTATION are design as protective measure: for parties. i.e. worker member, the employer and the public FUNDAMENTAL QUESTION: 1. Union reg is not violative of the freedom of assn guaranteed by constitution and LC? Union reg requirements in order to obtain legit status and avail rights provided for under 242 is NOT violative of constitutional and statutory. 2. Know the secondary rule which says that union can exist with or without registration as an organization. 3. Requirements of reg are only for purpose of putting conditions before a union can avail of rights guaranteed by law under 242. Because right guaranteed by law are stat creation and not constitutional guarantees. Role of BLR insofar as reg is concerned is NOT purely mechanical. Includes authority to examine document, not merely clerical in nature. Therefore if non-reg happens, the fact of non-reg does not mean that union is illegitimate. UNREGISTERED: All that it means is that the LO cannot avail of their rights provided by law under 242. May I also call your attention to 242-A because it is an amendment referring to REPORTORIAL REQUIREMENTS expected of every LLO. It is the impt article, I suggest you read very carefully 242 because its closely related to definition of LLO. Since cancellation has already been amended, you have no problem at all because long enumeration of law is no longer there. You have no problem because the amendment is brand new, no decision interpreting the new law. At the risk of overemphasizing: 241 which is law on union governance is a law that is expected to be known by every labor law student. Governing law on how union should be administered. But bear in mind, its cuttable into small pieces. 1.
2. Collection of money
Election matters.
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3. Special assessments and extra-o fees and method of collecting them. Concentrate here. In one simple
sentence, you should know ABSCBN, Palacol and Gabriel. All three cases interpret meaning of 241. Note particularly, how and what are mechanics for special assessments and extra-or fees. a. How can union adopt resolution b. How to collect In one word: strict implementation of 241 which means you should know requirements of 241 because SC has said there are no shortcuts available insofar as 241 is concerned, strict compliance with law is required. How was resolution adopted? General membership meeting, quorum requirement + reporting requirement. Procedural rule that you must memorize by heart.
Compare 241 (collecting from individual special assessment and extra-ordinary fees) with 222 (collecting from union fund for purpose of CB, atty f and settlement of labor dispute): distinction on special assessment and extrao fees. Know distinction between mandatory activity and non-mandatory and its relation to check-off.
Major policy decision: 1. normal condition 2. abnormal/special When do you apply these? The authority to apply decision, require as a gen rule that workers participate (by means of secret ballot after due deliberation). However, when is there exception. That, you should know. Under 241 (d) 1. nature of organization 2. force majeure renders impractical the determination by secret ballot Go back to Labor1 specifically on 113 on legit deductions allowed by law on wages. [Right to check must be 1. recognized by the employer 2. authorized in writing by the individual concerned UNION SECURITY PROVISIONS There are only three forms basically. All other are variations of the three. 1. Closed shop 2. Union shop 3. Maintenance of membership clause Basis for adoption of union security: Art 248 how do you distinguish one from the other. 1. At the time of entry of worker into the workforce: a. Closed shop: must be member at the time of hiring b. Union shop: worker need not be a member at time of hiring BUT he must join within the stipulated period of time as a condition for his employment c. Maintenance: neutral provision. Worker may or may not be member of provision as a requirement for entry into workforce 2. but once he has entered, theres a second area which refers to condition for continuing employment a. in all, worker must be member b. While they may have entered under diff conditions, but once they are already employed, all the forms must retain their union membership as a condition for continuing employment 3. What happens if the worker loses his union membership? If he loses, then it is a ground to terminate the employment of worker. If as a gen principle of law, if he loses employee status, then the union security provision will authorize the employer to terminate services of employer upon request of the union HOWEVER the union security provision is always strictly construed because as a principle of law, union security does not violate freedom of assn HOWEVER regardless of what form involved, law requires employer to accord worker fundamental requirements of due process before termination of employment rule is . if there is wrongful implementation, union as well as employer is jointly and severally liable for damage done on worker. 4. Rule on DP very strict even if union tells employer that they will assume full and solidary liability for any liability, ER is not relieved to accord due process. 5. Even if er is threatened by union with strike action, remember for Labor 1, termination must comply with substantive (grounds alleged by union) and procedural (notice hearing notice) dp. AFFILIATION 1. Cardinal rule: affiliation and disaffiliation are part and parcel of the constitution and stat guaranteed right of self-org. 2. Affiliation takes place, a. the affiliate is not a creation of the national union.
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b. Leg personality of affiliate and union to which it is affiliated are sep and distinct. Each one maintains c. Each one is a consensual body that can enter contract on its own BUT if national union participated in d. If union wants to disaffiliate (there are procedures provided for) the question is : if procedure is valid, it
can be enforced. Union must comply with procedure in the contract. If illegal, no need to comply. Rule: freedom of assn includes affiliation and disaff. Read 269 and 270 foreign activities of union. 270: distinction what acts can be done without approval of DOLE Sec. what acts can be done only after approval of the DOLE Sec. Outlines on Labor union, its a long outline. Is there anything that you want to be explained. Uncovered area? nego process, it did so only as an agent. Principal is the local union, since its principal, it owns the CBA sep legal personality
Part Four: Preconditions to CB: ABU and Union Majority Status

APPROPRIATE BARGAINING UNIT (ABU) Art 255 and 256 make mention of ABU put them together, 212 does not provide for a definition. Statutory reference to the term defined in IR but th eIR is a copycat definition of Rothenberg which means therefore, first thing you are expected to know: 1. Role and fxn of ABU in the scheme of labor relation. 2. Definition of what is an ABU 3. Standard test and factor test 4. __________ Owned commonly by one org 5. Determining agency and its finality 6. Is there such a thing as permanent bargaiing _______ Best case discussing ABU: UP v Calleja. I repeat, inevitably youll have to read Rothenberg who defined ABU in 1954 and consistently the same definition up to today. Roth is an American author. He said that the first component of the definition is 1. Employees of an employer, in whole or all. Composition therefore of an ABU are employees either in whole or a part of employers workforce, 2. To equity to the employer i.e. ease in admin and enforcement of th eCBA that will come into force 3. Key phrase: what is the tset to determine the appropriateness of a BU? group employees with common interests in wages, hrs and other terms and conditions. Rationale for the grouping: if you group ee with common interest, theres an assurance that the rights of ee are better enforced, recognized and more successful. Looking at def: last two that you should concentrate on . the case of UP v Calleja: LC uses only one word what is ABU, that is appropriate the same UP v Calleja also dissected and analyzed all decisions of SC from frist to last and made a study of different factors: geog, admin and all and laid down one fundamental rule: namely: 1. Several factor are taken into consideration/account in determination of what is an ABU BUT no one factor is decisive. factors test 2. Since the first case was brought to SC up to today, the standard test is what is known as commonality or mutuality refers to only one question: How do you group employees with a common interest in wages, hours of work, and other terms and conditions of employment. Rational behind: grouped accdg to mutual interest, greater assuarance that guaranteed rights will be enchanced and reciprocal righst and oblig can better be done. All bar exam questions, refers to what is standard test. Standard test: appropriate, but appropriate is not define. It means how do you group group with common interest 3. No such thing as best bargaining unit. Not optimum but appropriate. Since 1954 up to today, the only test accepted is commonality or mutuality interest. Answers two thing: a. How do you group? b. What is rationale for grouping? Common interest and greater assurance Ideally scope , size and composition must be decided voluntarily by parties. BUT if not decided by the parties, it (i.e. size, scope and composition of BU) should be determined by DOLE. And it does not bind future union and o____ parties. What in sum is it all about? In sum, the functions are: 1. ABU it performs role of an electoral district. Under 255: simply because LU selected by majority of EE in ABU becomes which means therefore 2. Marks the boundaries where cert election be conducted. Having marked boundaries, it marks one sovereign. Its a sovereign unit for a given pd of time. For such time on one time. One exclusive BR 3. Economic unit which det who are the beneficiaries of a CBa.
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LABOR 2 Integration Transcript | Prof. D. Disini | 2nd Sem, AY 2009-2010 Page 10 of 21 If you know 3 functions of standard test and factor test, then you know the law on ABU. GLOBE DOCTRINE: NOT A certifcation election. Its a plebiscite to determine the will of employees if they want to form a new bargaining unit. Meaning they are ceding from an existing one. WHICH MEANS, there is an existing ABU but a small group but wants to remove themselves from the group. The reason is purely economic: improve the market value of our labor. That doctrine applies only if all things are equal. Correct to keep them or move. 3 instances applied in the Phil 1. Railroad: classic example of ABU 2. Aborted application bec not push through but merely said Globe Doctrine Globe doctrine = consideration of will of workers. But to determine will, one must frirst conduct a plebiscite: Do you want or not want out? If yes, conduct a cert election because its at this point in time that unions will compete for majority status. It was asked in recent bar exam. Industrial union: no distinction on the scheme. Mass production techniques, there are very few skill. Mostly you are industrial worker. What youre expected to know: read all the bar exam questions: including my previous exam is the definition, the standard test and meaning of appropriate. Several businesses are commonly owned and commonly managed by so there are two groups. 1. Indophil and Diatogon: GENERAL. Mere fact that two bus entities have rel in common is not sufficient ground to pierce the veil of corporate. Indophil (located in same area) 2. Security agency cases: EXCEPTION to the rule. Unitary aspect of management and high degree of commonality which justified piercing the veil of corporate fiction of three separate entities. Common ownership, anniversy, management, payrolls, strategic measure in evne tof emergency and interchangeability. All these allow common. 3. EO 180: Bias in. principal test. What if different branches? ESTABLISHING UNION MAJORITY STATUS 256 257 258 258-A Distinction and when to use 256, 257, 258 Key: 256 and 257 Union as an initiating party in certification election. It can invoke only 256, i.e. organized establishments on 257 i.e. unorganized establishments. Key to understanding which to invoke is to understand definition of organized establishments and unorganized establishments and requirements 258 employer is invoking the cert elect mechanics. First group: 1. 256 and 257 the only party that can invoke is LLO bec you cannot invoke EBR status to a cert election unless you invoke 242 of LC. Common then to both 256 and 257 the initiating party is an LLO Dunlop v Secretary 2. 256 When is establishment deemed organized? not company per se but the bargaining unit a. Existing CBA valid and in full force and effect b. No existing CBA BUT there is a duly recognized or certified labor union that has 1 year to negotiate a contract. Union is voluntarily recognized. 1 year to negotiate a CBA c. Conditions that must be met as requirements to invoke 256: i. Filed by a legit labor union ii.It must be filed during the freedom period (253-A) i.e. last 60 days of an existing CBA iii.In the form of a verified petition which has been ruled by the SC to be non-jurisdictional. If its not verified, its not fatal because can be returned anytime for correction. NAMAWU v Secretary iv.Substantial support percentage of employees in ABU that supports petition. But make a distinctin. Are these employees member of union or ABU? Because its employees of ABU, base is much bigger. It must be cleared in your mind. 1. Courts have ruled a. that substantial support applies on in pet for cert election and NOT motion for intervention. PAFLU v Ferrer Calleja, Port Workers v Ferrer Calleja
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b. Even if there is withdrawal of substantial support, election will continue c. Discretionary rule, even if no substantial support, it can order the cert election 3.
if we are to achieve the policy objective of the law Western Agusan Workers Union v Trajano 257 When is establishment deemed unorganized? a. No EBR although the establishment may have unions never pa nagkaron ng CE b. Conditions: Requirements in 256. Absent in 257. Intent of law is to bring in the union bec its an unorganized establishment. 258 Employer as initiating party a. 258-A Role of employer: a by-stander and total stranger in cert election process because best proof of withdrawal is the support is the votes. THIGCI v THEU
4.
When is an election automatic? GR: Not ministerial. Must satisfy himself that all requirements are met Lopez Sugar v Secretary Exception: If all requirements in 256 have been complied with. So before you talk of voluntary recognition, you must first read Art 256 and 257 and the two companion cases. BOTH cases: invoke 256 and 257 refer to CE. Intent of the law: Secrecy of the ballot 1. Colgate Palmolive: DOLE sec without conducting election, certified a union as EBR. On the basis of proof other than election by majority status. In this particular case, SC said that the act of DOLE Sec in certifying union without conducting is clear violation of 256 and 257. The act of sec of labor has no legal basis/foundation at all. 2. Samahan ng Manggagawa sa Permex: Employer voluntarily recognized the union the act of employer in voluntary recognition is in effect certifying the union as an EBR and therefore is violative of the provisions of 256 and 257. Why? Because art 256/7 has rich judicial background. Courts laid down following principle: a. Cert election is most efficacious way of determining majority status. In both cases: the art invoked is 256 and 257, you will note that these art differ to cert election. It is very clear that intent of law is secrecy of ballot, through an election process. What happens now? Because of 2 doctrines: DOLE now promulgated new rule which says voluntary recognition but note very carefully the mechanics of voluntary recognition: 1. Union is legit 2. The sole albor union in the establishment 3. Voluntary recognition is duly reported to DOLE and made known in the establishment. Compare voluntary recognition with 256,7,8: one thing is missing: secrecy of choice. How do you answer if it is asked in the bar? You have to invoke the strict interpretation of SC in art 256 and 257 and 258 and finally the voluntary recognition clause. No one has challenged the validity of the IR but you will note that the LC states DOLE Sec can promulgate rules and regulations to implement rules and regulation of this Code. Judicial doctrine tells you that SoL cannot, under the guise of interpretation, amend the provision of law. Did it amend? Its a matter of choice to you. If you read the two cases not the judicial doctrine, you can only have one conclusion. If you want secrecy of choice, theres only one. Nobody has challenged it until today. Until challenged, it is valid, meaning employer can voluntarily recognized. Subject to strict limitations without violation provisions of law. Apparently, there are two choices now: 1. Cert elect 2. Voluntary recognition 3. Consent election (secrecy of ballot is still maintained) - Parties now allowed under IR that when there is petition, med-arb will record that parties have agreed and under IR, a consent election can be a bar to the holding of cert election. In sum, invoking art 256 and 257 and 258. The only way one can establish majority status is cert election. Whether you are invoking 256 or 257 or 258, the mechanics of election is found in Art 256. The only safe guide for you to understand as it is provided in Art 256 1. Know the distinction between cert election and run off election 2. Know meaning of votes cast, valid votes cast and combined votes of all participating union = 50% of all votes cast. 3. Distinction between cert election and run off 4. When do you conduct run off? Votes cast: votes were cast in the urn Valid votes cast: open ballots, all validly cast, there may be votes that are not valid Majority: 50%+1 of valid votes cast Certification election: begins with primary question 1. Was election validly held? a. 50% of eligible votes must cast their vote: Yes or No 2. If valid, what choice won?
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LABOR 2 Integration Transcript | Prof. D. Disini | 2nd Sem, AY 2009-2010 Page 12 of 21 Make distinction whether 2 choices or more than 3 choice. Its important for run off election where it is required that there be at least 3 choices. Minimum in cert elect is 2. b. Winning party may be union or no union. c. Test: which option received majority of valid votes cast. d. If no union won, thats the end of story. 1 year bar rule. If consent election: within a period of 6 months, they can file again. No question on IR because Sir does not agree with it. When to apply run off election rule? a. Election was validly conducted b. There was at least 3 choices but not one of the choices obtained majority of the valid votes cast. 2 unions and no union. Not one obtained majority of valid votes cast. c. BUT combined votes must be equal to 50% of the votes cast. d. In order to assure that there be EBR: only the 2 unions that obtained highest vote will participate. No union choice is automatically out. Unless, 2 unions tied, both of them will be on the ballot. A. WHO CAN VOTE? Memorize definition of the term employee. Includes current labor dispute and who has not obtained. B. What is an election day? Regular business day. Supposing theres typhoon or flood or majority could not both. Can not apply Asian Transmission because there is __C. How to annul? Same rule as political election D. Participation of 3P who apply meddlers does not invalidate the cert elect. Warren Mfg: still valid up to a point. 1. Insofar as saying certification election is by mandate of law. Voluntary and consent election. Correct. 2. Cert elect is still valid. Results in certification of EBR 3. Only certification determines the choice. Call attention to IR. No longer correct: 4. Consent election has nothing to do with CB No longer correct too. Consent election may result to majority choice. 2 more things: What are the bars? Not the place where you go after our exam. I understand its in the morning. Go and Bonilla doctrines. 1 year bar. When do you reckon the 1 year? From the date of results certification was finally certified. Because there are three dates. Day of conduct of election Results certified Appeal period resolve not applicable II. Contract bar rule finds justification in 231 saying if there is a CBA duly registered then it is a bar to a cert election provided CBA is complete. Incomplete CBA cannot be completed in order to invoke the bar. Premature contract cannot likewise be invoke, it was renegotiated prior to expiry date. Law abhors a vacuum. If contract is premature. Apply substitionary doctrine. Substation: if winning party is diff from signing, the winning party will step into shoes of old party. Can renegotiate if it wishes. Contract: complete registered. Bow. There is a bar. III. Deadlock bar rule. You cannot forget this 99% of recitations resulted in a deadlock. So you cannot forget this. They cannot believe I have deadlock, they thought I was a killer Despite best efforts of parties, they failed to agree. They complied with rules of 250 and 251 and 252 and negotiated Deadlock is submitted to voluntary arbitration or compulsory or valid notice of intention to strike a.
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Suspension rules: Case for ULP referring to company discrimination prejudicial question. Until and unless resolved, there will be no cert elect but the law requires the petitioning party to suspend party must be the same party that filed complaint for ULP. Take a look at establishing majority status in your outline ART 256 and 257 and 258 must be mastered by you and you must know the relationship between 25678 and rule on voluntary recognition. Im doing it fast but taking a precautionary measure by asking you to read your outlines. 18 March 2010 Take exam on 30th
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LABOR 2 Integration Transcript | Prof. D. Disini | 2nd Sem, AY 2009-2010 Page 13 of 21 What is impt for you to know very well is definition of Rothernberg reason: that last 2 parts explain exactly what has been the common test in the Phil since 1964. You read in your notes in UP Calleja, LC provides only one test. According to time and circumstance. Tracing history of law in the phil. Justice narvasa wrote that statement with one simple guide, whatever it may be. Common standard test, apply what is commonality or mutuality of interest. Why? Best assure that workers can make maximize the use of constitutional guarantee of law in RSO and RCB for reciprocal rights and obligations are respected and protected. 2. 2nd major area. Other factors taken into consideration (e.g. history, location, employee classification) the court has followed American doctrine. Not one test is a prevailing test. The impt of a factor is determined by time and circumstance. Standard for mutuality of interest 3. Distinguish Diatagon and Indophil. Common interest : there may be interrelationship but it will not in itself justify forming one BU. Security agency as exception: Unitary aspect of management that and pervasive commonality. Read particular position of decision so you understand very well. 4. Parties allowed to agree to extent composition on extent and scope of BU; failure to do so, will require the DOLE to determine, because if without ABU there can be no cert elect. A reading of 255 and 256 will tell you that ABU is the electoral district (i.e. area where the CE is conducted). No discrimination because duty of fair rep imposed by law on exclusive bargaining representative. Represent all, regardless of fact that there may be membership in ABU of indiv who are non-union members. Duty of fair representation demands that there be no discrimination. Impt of issue on determining majority status: I have to go back to it simply because while 256 referring to cert elect in organized establishments, 257 meaning certification election in unorganized establishment and 258 meaning cert elect upon petition of an employer remain intact, there is the amendment on 258-A which says that refers only to 258 but not t256 and 257. The amendment indicates, or codifies what is existing judicial doctrine. New IRR with respect to voluntary recognition which now affects in many ways than you can imagine 256 and 7. Now. Art 256 and 257 may be affected and I think it is affected by rule on voluntary recognition, so you will note then that the old question, how do you determine EBR the old answer was cert election and it is statutory doctrine that cert elec is best, most democratic and efficacious way of det majority choice because there is secrecy of choice through ballot. However it does not exist from law but the IR. It tells of 3rd way. Fully understand structure of voluntary recognition to understand judicial doctrine of 256 and 257. Insofar as vol recognition is concerned, its principal distinction is it does not have secrecy of choice. However, IR is worded in such a way that it tries to alleviate principal defect lack of secrecy and the mechanics: 1. Vol recognition take place only if a. Only 1 LLO in establishment b. Employer and union agreed to vol recognition by showing proof of majority status OTHER than hat of cert election c. Fact is reported to vol recognition made known to DOLE Note procedural safeguards that procedural rules have in place to mitigate lack of election. IR says consent election can have effect of cert election. 1. If parties vol agree to conduct consent election will be recorded in the minutes of meeting and conducted as if cert eelect took place. Hence warren as doctrine may not be in full force and effect. If you were to ask what are mechanics of majority status 1. Cert elect 2. Consent elect (bec of IR) 3. Voluntary recognition Read 256 and 7 meaning organized establishment election and unorganized cert election in light of Colgate and Permex. Compare with vol rec clause, not in consent election where secrecy is maintained. What does 256 and 257 say? Common to both, only LLO can initiate the process bec under 242, only a LLO can exercise rights granted by law to LLO rt to be determined EBr. Thats clear. But a reading of 256 will tell you that there is implicit in the article, the secrecy of the choice and means that election conducted subj to certain requirements: 1. Legit status 2. Substantial report 3. Timeliness bec of freedom period Interpreting art 256 read Premex. Independent, a careful reading will tell you that its an implementation of existing judicial doctrine, no better alternative than cert elect to maintain secrecy of choice. Erred in recognizing a union as ebr. Without conducting certification election. That violate squarely 256 but if you read Colgate Palmolive with earlier decisions on policy declarations, line is straight. No alternative to election bec it will be conducted even if only one union (George and Peter lines) freedom of ____ is being preserved. Colgate is strict: no election, no cert. Samahan ng Manggawa: problem was instead of secretary, it was the employer that voluntarily recognized union without conducting election. Same doctrine earlier promulgated in colgate is being reiterated by courts. Following them, only conclude there is no alternative other than to conduct cert elect. However, IR introduced 2 concepts,
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LABOR 2 Integration Transcript | Prof. D. Disini | 2nd Sem, AY 2009-2010 Page 14 of 21 voluntary recognition subject to safeguards, if you compare, the one missing element is secrecy of choice. Cardinal rule in lC Consent election maintains secrecy of choice there is less criticism. Directed it on voluntary recognition. To sum it all up. If you were to determine solely on basis fo LC and 2 cases: theres only one way: cert election. However, bec IR so provide: vol recognition 2nd way. 3rdly consent election rule. Reconciliation of 256-7, voluntary and consent election. Speaking only of methodology/procedure of establishing majority status, is it clear. 1. policy 2. mechanics of election Going back to mechanics, bear in mind that 256-7 not amended at all. So most if not all used 257 and 257 and rarely only used vol recognition procedure. Mechanics that you must be aware of plues the fact of conduct uner 256 or 257, or the election is conducted under 258. Procedure or election is common all found in art 256. Break it down to component parts. As we said earlier, 2567 have one common char: pet must be LLO. Basic fundamental difference between 2567: requirements in 256 are not found in 257 at all. What are those requirements. 1. No petition can be entertained nor one conducted during lifetime except for last 60 days of CBA. Known as the freedom period. 2. Read 256 and 253-A maximum duration of CBA is 5 years. 3. The petition must be verified in form, otherwise, it does not raise juris problem. Only procedural problem, return pet for correction. 4. Substantial support rule: the first thing know, what is substantial. 25% of total mem of ABU supports 5. While there is substantial support: companion rule that there is the discretionary rule i.e. even if the 25% substantial support is not present, there is discretion granted by law to DOLE to order rejection 6. Need not be shown at time of filing petition, show thereafter. Union no right to verify authenticity of subsup requirement 7. Sub support not application motion for intervention, only cert elect Election automatically ordered, ___________________________ Segregated 256. 257 union initiated election: 2442 will apply hence means only a legit union deemed to be unorganized if not existing CBA or not EBR though several unions and establishment. Distinguish organized and unorganized. Simple because organization says there is an existing CBA but bear in mind by judicial doctrine, theres contract bar rule. A union that has been certified as EBR has one year to negotiate a contract. By definition, therefore, if certified without contract, it has period to negotiate contract. Establishment deemed organized. Looking back at 2576=, not that 257 requirements of 56 namely 1. Timeliness 2. Substantial support not present. Intent of law, bring in union easily so policy can be achieved. WHAT IS BEING GROUPED IS the occupational titles. Not the employees. A close reading of 255 ab is an electoral unit. Mark the boundaries. 258 covers situation that petitioner is employer. He can file the petition only because the union asked for recognition and the ER doubts. The fact that he doubts did not destroy doctrine of stranger. There is 258-A that codified the total stranger doctrine entitled only to be inform and furnish the list. 25678 but before I leave it once and for all. As long as fundamental distinction. Whether election is 25678, you will note that the mechanics is provided for in 256. Cert election, Run-off Same rule will apply in 256 2nd guide: what is meaning of the phrase votes cast and valid votes cast majority of valid votes cast combined votes of all participating union = 50% of votes cast
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LABOR 2 Integration Transcript | Prof. D. Disini | 2nd Sem, AY 2009-2010 Page 15 of 21 When does votes cast apply? Election validly held Majority or50% or must cast their vote? Means the workers participated (draft ballot, but validity of ballot not in issue) Which among choices won? Won = received majority of valid votes cast (i.e. 50% + 1) Law now making distinction between votes cast and valid votes cast. There is a right of challenge insofar as validity of votes cast is concerned. For a choice to win, it must receive majority of Valid votes cast; it becomes imperative how many choices were there. Run-off may be a possibility. But it requires that not one of the choices obtained majority valid votes in the cert election there was at least 3 or more choices i.e. there was union a, union b and no union. Should cert election be conducted? Is all over. Should the run off be conducted, met the test of validity, 3 or more choices, combined votes of 2 or all the participating unions = 50% of votes cast. Now. You are ready to conduct a run off election. The same rule but no union choice is eliminated. 2nd elimination: least number of votes is also eliminated. The remaining g contenders will be 2 unions highest number EXCEPT if tie between 2nd or 3rd, all three will participate. Mechanics of law distinguish bet cert elect, run-off and intent of law is to bring in union to make use of fact that policy objective of law must be attained. The heart or the matter. How to determine choice. That is the process. When can you invoke one over the other. When can you invoke. Distinguish between bars and the prejudicial question rule or suspension of election ( 1. very strict bec of requirement that here must be formal charge of company domination. The only ulp recognized that can be invoked in a suspension rule.) 2. only the one that file charge can ask for suspension.
Part Five: Collective Bargaining: Process, Procedures and Issues

Where is your roadmap. Constitutional guaranteed right for all workers have rt to nego collectively. Apparently, nego private, cb private (A13S3 constitutional) 243 Rt to bargain collectively is also statutorily guaranteed right. You have basis for the right. Read 250 and 251which are procedural rules for CB. Crucial word: more expeditious. Law allow parties to negotiate procedure. If unable to agree on more expeditious way, by automatic provision of Law, 251 will apply. Thats wrong wake up. It should have been ahead of 250 bec its procedure provided by law. 251 is the procedure to agree. Yes you can agree, but if less expeditious than 250 it should be 250. What and how? 1. It should always in writing 2. What is the effect of time frame 3. NCMB Read 233 I an integral part of 250 by way of reference. Because 233 is privilege communication. Clear? Heart of entire matter. Read very very carefully. Art 252 and 253 both in relation to article 248 and 249 with respect to ULP. Mastering therefore the structure of 252 is a conditioning that you must know before examination. Relationship between 252 and 253 because 253 refers to effect of expiration of CBA. Meaning what is the duty imposed by law on the parties if the agreement has already expired 253-a speaks of 1. Majority status of union cannot be question except last 60 days. Max period is 5 years 2. Question of reopener not later than 3 years but what issues can be reopened? All other provisions 3. Question of if we do reopen, what will be date of effectivity reopened clause. Read Rivera v Espiritu. Only case interpreting 253. Know roadmap but concentrate on 252, 3 and 3-a In other words, parameters are now clearly marked. You will note that 250 up to 253-a implement what is constitutionally guaranteed as right of all workers to bargain collectively. Art 211 to being with. Big A a policy of state to promote an emphasize the primacy and it mentions CB. Be very careful that you do not read selectively, not read 211Aa independent of 211B because big b reiterates policy statement but at same time provides exception e.g 263 g but dont forget h bec it return to 211Aa.
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1. All proposals and counterproposal must be in writing. Fundamental doctrine says if not find itself in print,
minute of nego has no value at all. Whatever must have been said during nego process must be in writing. Proposal, counterproposal. The fact it did not find in CBA itself, no rights can be claimed, no liability may be imposed. Not printed in CBA, no writing = 0. Time frame: refer to submission and reply to the proposal by judicial doctrine. Failure to comply with does not give rise to unfair labor practice. Merely directory and not mandatory in nature. Mediation as alternative modes of dispute settlement. The law makes reference to NCMB. Organized and established by an EO. Board mentioned in 250 is same board defined in 212. Board = NCMB
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Read in NCMB, corss refer on 233 in privilege communication. Mechanics of law is clear in your mind. Concentrate on extent and power of NCMB simple reason: law defines function not arbitration but med and council. All it can do is if there is a deadlock to suggest to parties to submit case, the ncmb can never be the arbitrator. Rather unusual in sense that it has subpoena powers. i.e. it can compel parties to participate in conciliation in mediating proceedings over and above all, imposes obligation and duty on all participating parties, not to do any act that will impair or imperil the conciliation and mediation process. Thats structure of law. The power is: 1. `ask parties to appear 2. Neither party allowed to do any act that will imperil/impair the process 3. Companion law is 233 in order to encourage 0partcipationini process, theres rule in priv communication. During conciliation proceedings, nothing said during conciliation/mediation acceptable in evidence in any court of law or admin body. 4. No indiv public or private compelled to testify a to mater discussed during process 5. Nissan: arb award not based on co9nfidential info divulged during medication and conciliation process. 252 cut in small pcs to be manageable 1. Explains and discusses what is called standard of behavior a. Positive statement i. Defines standard of beh as obligation for parties to meet and confer promptly expe and n GF to nego contract. ii. Defines how parties should beh with objective of nego a k iii. b. Negative statement i. Neither party compelled to agree to counter or proposal ii.One does not negate the other. If failure to comply, probability fo colliding with 248 and 249 speak of an ULP where parties refused to bargain in GF iii.252 mention GF also in 248 and 249 2. Negotiable issues a. Includes obligation of parties to put all agreement in writing b. 3. Related 252 with 253 because it refers to obligation to bargain during expiry date of CBA and the effect of expiry date. Finally, 4. 253-A with respect to period of CBA Kiok Loy v NLRC: CBA is one of cornerstones of Phil labor policy. Get the tone and intent of law as interpreted by the courts. But you begin to meet and confer promptly expeditiously and in GF. According o the Court: Mechanics of CBA are not self executory bec one must initiate. Process begins by initiating and it does not say that only union can. The employer can be also. Although more common is the union that initiates bargaining process. Who initiates? Not self-explanatory Nature of CBA Duty Duty revolves around one words good faith. The simple rule is simple. Malapropism
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LABOR 2 Integration Transcript | Prof. D. Disini | 2nd Sem, AY 2009-2010 Page 17 of 21 Goodness of faith or the badness will be measured, what did parties do during negotiating process. What is in the mind is now released for all to see how the parties behaved during the process. An answer of no by and in itself is indicative of bad faith. But with no explanation coupled of bad faith . it does not open communication. Good faith therefore: 1. What parties do 2. Mind open and not close to what? Open and not close o the idea that therell be CBA in effect therefore is satisfied if party says no but explains why you cannot foreclose the possibility of agreement. Clear. Simple line. The next one well try to simplify. Wages, hours of work and other terms and condition deemed to be negotiable issue. difficulty other terms and conditions in order for the issue to fall within that phrase, establish a direct connection between nature of work and business. Is the proposal one that has direct connection between nature of work and nature of business. If it does, it falls within, so. You have defined wages, hrs of work. Now simplify. Following the doctrine of SC is the issue mandatory, negotiable OR directory negotiable. Wages and hrs and other terms and condition. When mandatory and when directory Distinction: Mandatory: party must negotiate in gf AND if not there is the possible violation of the duty to bargain because its an ULP if reach point of impasse. The use of economic weapons available. Strike or lockout if and only if issue is mandatory. If directory, freedom of parties to negotiate it at all. No danger of ULP there can be no impasse in use of economic weapons. If the employer agrees to negotiate a directory issue. Standard of conduct will be determined by 252. At least its standard of conduct. Question if the issue is merely directory. But the employer agreed to negotiate, did he convert it to mandatory? No intention of asking in the finals Know the formula and the consequence. Wages here and now. Includes deferred wages at some future time e.g. pensions and retirement pays. Remember plan of DOLE to lengthen the workday and shorten the workweek. Purely academic point of view. Thats void. bec you cannot give up benefits granted by law. Dole sweetened it, it was trying to tell employer and worker, theres a benefit for you, you will only work for three days save money for transpo and food. DOLE did not tell them of loss of premium pay. Finish of how to compute the grades. Reduced the passing rate. We meet on Monday at 9:00. Hopefully able to finish it by then. Going back therefore to 252 master it very well. Read 253 during lifetime of CBA there should be no changes except 60 days freedom period. In the meantime contract had expired, remain in full force and effect. Judicial doctrine. As a whole not only speicif provisions or provision. The entire CBA and you cannot say, I will do it only selectively. New Pacific Timber v NLRC Alright, Contract administration and enforcement and contents 1. Defined in law agreement bet 2 parties, substantially affect 1705 2. CBA benefits all employee within the CBU. 3. Contract in personam, not in rem and therefore affects only parties directly signatories. 3P if and only if, you can show there was fraud. Sundowner v Drilon 22 March 2010 Know 252-A and 252 in relation to duty to bargain in good faith Duration of CBA, representation of __ when it can be challenge, reopening, effect of reopening to det the date of what is agreed upon Closely related to law on ULP, youre also expected know if the right to bargain collectively is violated, is there sanction under 248 with respect to meaning of duty to bargain in good faith. Art 260 with respect to when is a violation of CBA simply a grievance and therefore that proceeding is non-arbitrable. Non-mandatory and mandatory issues. Distinction between mandatory and non-mandatory issues. Question with respect to CBA?
Part Six: Employer/Union Acts of ULP: Violative of Ee Rts to SO & CB

Dont complicate your life with ULP 1. ULP has technical definition simply because 212 categorically states that its an act of ULP if and only if the law says so. The law says so only under 248 and 249 so that is your basic legal framework. Definition of term and enumeration of the term. Because 212 must be related with 248 and 249 2. 246 guarantees the non-abridgment of the rights. 3. 247 provides for the 1 nature of a ULP and 2 how to enforce right in the event theres violation. Law distinguishes civil aspect of ULP as distinguished from the criminal aspect of ULP and the requirement that before criminal aspect prosecuted, requirement of finality of judgment in civil. Finality that there is finding that
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LABOR 2 Integration Transcript | Prof. D. Disini | 2nd Sem, AY 2009-2010 Page 18 of 21 here is ULP because if there is finding no ULP, one cannot prosecute criminally simply because rules of evidence vary. In the event that crim pros possible, judgment of civil aspect that ULP committed is of limited value because a. Only proves compliance with procedural requirements b. Entire different proceedings from one and the other no evidentiary value because the nature of proceedings is different The entire stat framework anchored on protecting right guaranteed by law in both constitution 13 and 243 namely two rights to self-organization and CB. Are the rights being protected. If you have very good working knowledge, you wont get loss. How do you cut the statutory framework to manageable proportions 1. 248 exactly the acts mentioned as ULP and therefore you can draw a statement from that statement. An act may be deemed to be unfair If and only if it violates the constitutional and statu guaranteed rights of selforganization 2. It may be unfair but not within the ambit of 248 and 2149, unfair in your book sbut not in LC
1. The first statements identify who are the alleged violators of the act. Identify who the alleged violator because
youll name them in the complaint. 248 is for employer (note: employer likewise defined in 212) who is the actor of the act? and 249- identified actor is labor orga by definition defined in 212. Workers association in IRR while LC does not include them, 2nd par refers to workers assn can also commit act lf ULP under 249. Note it says officers or agents not defined in the LC. Only way to determine is to look at the constitutional and by law of the union to be able to identify it. Agent does not mean agency law provided you are able to establish agency relationship, a loose term will apply SPECIFIC ACTS Par A of both: use the same terms. In case of 248 the operative act is interfere, restrain or coerce but in Art 249 Par A the operative act is restrain or coerce. Not defined in any manner whatsoever, nevertheless, judicial interpretation that lexicon definition is acceptable in law. Note that there is a close relationship between specified operative acts, interfere restrain coerce bt you will note that act must be directed against something. Thats employees right to selforganization to bargain collectively. The exact formula to determine whether there is an ULP. What is operative act, interfere restrain or coerce but actor is employer. Labor union: only one direction ang thrust: interfere, coerce restrain rights granted by law: bargain collectively and self-organization. Interfere does not appear had it appear, anything union would do is violation of law. Note very clearly there is no definition in law of interfere restrain coerce, ordinary laymens definition as it appears in dictionary is acceptable. Formula clear in your mind: 1. Look for actor 2. Look for act 3. Against whom 4. Specifically what rights Youll never get loss as long as you have identified actor, act and thrust of the act. 99.9 percent youre on the right track. If you get away, if you turn away, youll be affected simply because your mind will not operate on legal terms but your feeling that is unfair. Close relationship between Par A in both sides and Par after A in both sides. Enumerated acts are what happened over time and history. They illustrate interfere and restrain, but illustrations are not exhaustive because enumeration not exhaustive. Because of that 2nd fundamental principle: law not written in a way that law maker was able to foresee any and every. The law interpretor and administrator given ample and adequate. They can interpret the law. 2nd fundamental principle: the law was not designed in such a manner that the lawmaker was able to determine in exact detail all possible ramifications considering that, then your principle tells you that lawmaker intended the law administrator and interpreter to interpret law in light of its object i.e. to protect the worker against invasion of the two rights. 3rd fundamental principle: its not the success or failure of act that really matters. 1. does it have reasonable tendency to succeed 2. Totality of conduct: single act may look innocent, but in view of big picture, theres pattern of ULP Insular Life v Insular Life Assurance 3. Mixed motives of employer test is also applicable: er may have many motives in doing the act, good and violative of law so note theres a just cause for er to do the act but they may be another motive. Visayan Bicycle if you can prove that anti-union bias contributed even in a small way, then you can be sure theres gonna be ULP 4. Not proof beyond reasonable doubt in the civil aspect, only substantial evidence.
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LABOR 2 Integration Transcript | Prof. D. Disini | 2nd Sem, AY 2009-2010 Page 19 of 21 FUNDAMENTAL RULES I. ULP is technically defined phrase (212 , 248 and 249) II. Registered or not it does not matter III. What is the act; definite direction: Contracting out 1. It remains intact. An er can contract out work. The act of contracting out is not per se a ulp. It becomes ulp if and only if 2 conditions are met. The work contracted out are performed by members of union. 2. The act of contracting out has a cooling effect on the workers attitude. 3. Reconcile with 106. Its the criminal prosecution and civil aspect. Jurisdiction. Judicial doctrine: totality of conduct, mixed motives, substantial not All you read are extra.
Part Seven: Economic Weapons: Strikes and Lockouts

CONCERTED ACTIVITY Road map: Art XIII, Sec 3 - guarantee and limitations of right to strike and lockout 212 definition strike and lockout 263 procedural rules including liabilities 264 prohibited activities in the course of strike 265 last offer balloting Sublime ridiculous fully ridiculous Memorize word for word its only one sentence. Art 13: it refers to the State guarantees the right of worker to engage in peaceful concerted activities including the right to strike in accordance with law. General categorical statement, theres a guarantee to right of all workers to engage Keyword is peaceful. Read art 264 means all quiet Concerted activities refer to the strike. Although, lockout is included because employer is not mentioned. Strike defined in 212. in accordance with law is 263 namely procedure, allowed strikes and 264-2 prohibited strikes One sentence in Constitution peaceful (refers to 264 behavior of parties in the course of right to activity) concerted activity right to strike in accordance with law what strikes are allowed? What strikes prohibited? Therefore read 263 and 264. Note very carefully, the heart of all your outline is actually peaceful concerted activities in accordance with law it is that. i repeat. Purpose Or Means test Peaceful Concerted Activities 263 Strike In accordance with law (procedural regulations)
264
I gathered the diaspora of the articles. Put together to make them coherent. The entire heart. How is it regulated? a. Only the following strikes are valid b. The following are prohibited c. Procedure Simplest but most complicated Purpose: why Means: how what did they do in the course of activity Strike is temporary cessation of work as a result of industrial or labor dispute. Deduct two principles: 1. DEFINITION If there is strike, EER is not terminated. It is at best, merely suspended. But you will note that 263 tells you, if there is strike, the rel is not terminated even if declared illegal. As a result of labor or industrial dispute, go to 212 on the definition on term of labor or industrial dispute. If you go back to LC, the following are only grounds for strike, bargaining deadlock or economic strike. And ULP strike. This answers the purpose. Only two: ULP or bargaining deadlock and economic strike
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2. PURPOSE Include slowdown i.e. installment 3. No lockout clause: applies to ulp not to economic strike. There is distinction between no strike no lockout (both
4. give up right to strike). What is given up in no strike or no lockout clause? You dont give up ULP, not economic, theres procedure. You only give up one. Who can declare strike? Only a LLU or a duly recognized EBR can engage in both strike ULP and economic strike. Legitimate union but not recognized, it can only engage in ULP but not economic. Purpose and the means. Exactly what it means. Catalog. No?
5.
6.
SL Allowed? WHO?
Procedure need not be sequential. But then. Three types of strike ULP ECO Strike busting its really ulp, not contrary to rule that there are only two The key: you memorize 263 insofar as procedural requirements are concerned. Funny case of Sukhothai. Each one of requirements has reason for it. Best exemplified in the case of Lopez sugar central. Filing of notice of intention of strike, taking strike vote, reporting, cooling-off, 7 day strike ban Primer of NCMB which says that 7 day is part of 15 cooling off. Thats what it says, right or not, its been complicated by Sukhotai. Entered because of the union busting type. Even if union busting, all that you are exempted is observance of cooling off period. You still have to file notice of intent, ______. But you still have to observe 7 days cooling off already dead union. You dont argue with bar examiner. Read Federation of Sugar Cane Planters v Ovejera. Liabilities: 1. Union officers more strictly compared with rank and file 2. IF authorizes, ratifies, participates is liable. To impose liability is employers discretion. 3. If ordinary rank and file worker, a. he must be clearly identified as person who committed illegal act b. Given due process c. Not a ground to terminate. Burden of econ strike is born by both parties Strike breaker and strike area hold you responsible. Union busting: termination of employment of a duly elected, not appointed. Last offer: within 30days after declaration to strike, they will be asked to vote. If they do, cease. Vote on reduced offer.
Part Eight: Picketing

PICKETING Not in detail. Call attention to 3rd party innocent bystander rule: focused on who is innocent third party and why interest to be protected. Not involved in any manner in the labor dispute but his area is picketed, possibility that the parties outside might believe that they are parties. Therefore will sympathize. There is danger that there may be sympathy, the party who is innocent 3P, it will take the law in his own hands. The state will regulate the area of picketing. Picket only in area of establishment involved in labor dispute. Although strike area include where employer move his or her business. There area no American cases cited. Picketing is a specie of freedom of speech (Mortera) only deviant is the case of the bank sued correctly for libel and slander but court sympathizing with workers. Deviant. Take place even absent EER. Stranger picketing can take place. Can you regulate because cannot curtail. The only case you have is regulation by area. Innocent 3rd party bystander rule. Number but you can construct your theory. Insular Life: one purpose: appeal to reason and therefore asking for sympathy. No room for force. Door. Behind you. Veteran grander. Yes you can limit. While freedom of speech.
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Part Ten: Alt to Use of Econ Weapons: Conciliation and Arb

COMPULSORY ARBITRATION NLRC delegated authority. LA receive evidence 3. Assumption of jurisdiction: issued or not: return to work order automatic 4. Compliance is duty not obligation 5. Extent of authority: plenary or full? 6. Hospitals and medical institutions: treated separately but not prohibited from striking. Law requires skeletal workforce to protect the sick. Return to work order Nature of dispute Extent of authority 263-g and h: voluntary arbitration VOLUNTARY ARBITRATION Art 13 S3 of Constitutional: preferred mode 260 original and exclusive jurisdiction, extent of authority Contain of CBA as well as Voluntarily conferred jurisdiction
Labor Rel in Public Sector

EO 180 END OF YOUR COURSE The final draft. Third version. FEATHERBEDDING: Bayanihan dance company of PWU
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LABOR 2 Integration Transcript | Prof. D.

Disini | 2nd Sem, AY 2009-2010 Page 1 of 21

Part One: Labor Relations Policy

Part Two: Worker Right to Self-Org

A. Employees of GOCC organized in accordance with Corpo Code.

A. Managerial employees (Art 212 and 82) statement of functions

Art 245. Speaks of 2 types:

LABOR 2 Integration Transcript | Prof. D. Disini | 2nd Sem, AY 2009-2010 Page 2 of 21

EXTENT scope of FREEDOM OF ASSOCIATION

Constitutional are coached in very positive terms.

includes rt to join, affiliate and disaffiliate as integral parts of freedom of association

Part Three: Labor Organization

LABOR 2 Integration Transcript | Prof. D. Disini | 2nd Sem, AY 2009-2010 Page 8 of 21

LABOR 2 Integration Transcript | Prof. D. Disini | 2nd Sem, AY 2009-2010 Page 9 of 21

Part Four: Preconditions to CB: ABU and Union Majority Status

LABOR 2 Integration Transcript | Prof. D. Disini | 2nd Sem, AY 2009-2010 Page 11 of 21

Part Five: Collective Bargaining: Process, Procedures and Issues

LABOR 2 Integration Transcript | Prof. D. Disini | 2nd Sem, AY 2009-2010 Page 16 of 21

Part Six: Employer/Union Acts of ULP: Violative of Ee Rts to SO & CB

Part Seven: Economic Weapons: Strikes and Lockouts

LABOR 2 Integration Transcript | Prof. D. Disini | 2nd Sem, AY 2009-2010 Page 20 of 21

Part Eight: Picketing

LABOR 2 Integration Transcript | Prof. D. Disini | 2nd Sem, AY 2009-2010 Page 21 of 21

Part Ten: Alt to Use of Econ Weapons: Conciliation and Arb

Labor Rel in Public Sector

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