Lectures on Labor Relations
From the Lectures and Hand-Outs of Father Agustin L. Nazareno
First Exam Coverage
June 19, 2014
8:00-9:00
ADCJ
This is labor relations. The law is applicable to only 5% in
the labor course because that is the extent of the
organization. But in the bar examinations this covers
50% or more of the questions. Why? Because this is the
most high profiled part of labor. In other words, this part
of labor law comes the headlines.
You have taken up labor standards. Labor standards is
supposed to be that part of the labor legislation which
prescribes the minimum benefits by way of wages, hours
of work, rates of pay that employers cannot ignore and
that employees cannot even waive, that are presumed to
be part and parcel in the very least to every employer-
employee contract. That is labor standards. The law itself
dictates what the terms of the agreement in the very
least. It can be higher, but it cannot be lower.
What is Labor Relations? Labor Relations is that part of
labor legislation by which the relationship of the
organized labor and the employer is regulated in such a
manner that they come to the bargaining involved and
decide by agreement what are the benefits that the
employees enjoy.
Now, it cannot be just labor standards. It cannot just be
the minimum because if it were the minimum then it is
considered, in labor relations linggo, as a sweetheart
contract and it is irregular. Why would you organiza aa
labor union if we arrive at the minimum when that is
already provided by law? So the assumption is there is
something wrong with the organization of the laborers.
Nganong maghago-hago pa man sila, nga ilaha naman
unta na sumala sa balaod? So that is presumed irregular
if you only grant what is already granted by law. So it
must be higher.
If it is grants something higher than what is already
granted by labor standards, it is called INCREMENTAL
BENEFITS. If it grants something totally different from
what labor standards already grants, then it is called
SUPPLEMENTAL BENEFITS. But whether or not it is
incremental or supplemental, it must be over and above
what the law prescribes as minimum of employer-
employee contract. That is labor relations.
Now, the important posture of a student of labor law
should assume is how do I understand this law without
doing violence to the principles under civil law? because
labor law belongs to a highly different traditio, an entirely
different tradition. It is a much shorter history and
trandition than that of civil law. It is not as ancient as civil
law which takes back all the way to the Roman Law
Society. Jus Civiles and Jus Gentium. They are 2 codes.
Jus Civiles, the law for citizens. The root word for civiles
and citizen is the same. [father discussed the Roman
Society, not important really]
Now, in labor law, who has more rights? The employer
who owns the enterprise who cammands the economic
undertaking or the employees who merely co-opted by
the employer by means of hiring? In terms of the
emloyer-employee relationship, the rendition of service
for another in that set-up, the employee has greater
rights than the employer. Why? Because of the principle
that the bias of the constitution is social justicemore in
law to the less in life. Kadtong gamay ra, dungagan.
Katong daghan na, kwaan.
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Balaod sa Roman society, pareho ra tang tanan. Ngano
pareho man? Pareho ra ta naay mata. Ikaw naa, ako
duna usab. Duha imoha, duha pud ang ako. Gitagaan ta
sa Makakagahum paglihok. What does our Constitution
say? NO. our society is distinguished by its marked
inequality. So many have so little and a few have so
much more than what they can consume for their lives.
So therefore, those who have less in life should be given
more in law because if we will not do that we will not
correct the imbalance. If we will not correct the
imbalance then you will have a sitting volcano which will
erupt and that is the end of everybody. So, for the sake
of everybody, you have to be kind to the less fortunate,
to the more in law. Our constitution does not celebrate
our society as one for all. It sees our society as critically
flawed. Mao ng lugwayan katong gamay ra sa pamasin
nga dili unta muabot ning bagyo namakabungkag natong
tanan. Sa mubong pagkasulti mao na atong Constitution.
Now, is that the assumption of the American
Constitution? No that is not the assumption.
Now, there are philosophers who say the idea of law
itself is based on the premise that man is evil and he
cannot be trusted because if man is assumed to be good,
then there is no need of law. Kini buhata, kini ayaw
buhata. When you start doing that, we have rules. Why
cant we be a society without rules?
Love and you can do anything because that sombody
who loves, who thinks the good of everybody cannot be
wrong. There is no need for work in the City of God. The
ideals in the Utopia. Is that the idea of law? What is the
presumption of law? Is man good or bad? You are taught
in Political Law that there is a division of powers and
prerogatives in the Constitution. And the departments
that exercise these distinct powers act as a check for
each other. At the same time that the Constitution grants
the power of the department, it also limits. Why?
Precisely to prevent abuse. So, is abuse a remote rare
possibility in the Constitution? NO, it is a critical concern.
That is why there is check and balances.
I am in an organization which is religious in character.
Our head, the pope has no term. Patuyang lang na siya.
Hangtod mamatay na siya, pope gyapon na siya, gawas
na lang ug mu-resign. What he says is law. Every bishop
in the world is appointed by the pope. No diocese in the
world can elect its own bishop. He appoints every single
bishop, archbishop and cardinal. They are also holding
office for life. From the political point of view, it is a
recipe for abuse. If you put somebody in office without a
term, you know very well, that that is an invitation of
abuse. Yet, that exists in the church. That is the correct
premise of lawman is good, but man is prone to evil.
You have to understand where you are coming from.
Unsa man ka? Unsa man imong pagtuo?
Social justice is the constant mandate of the Constitution.
Now, from the point of view of economics, when a group
of employees organize and form a union, it brings about
an unwarranted cost to wages that is not economic but
artificial. It is based on demand just because in the sense
they have the monopoly of labor. You can just say, we
will not work, if you will not pay! If you will not give us
this much of wages! its a classical example of labor
legislation. The workers turn out, refuse to work unless
they are paid this much. The US Supreme Court
convicted the workers with the crime of organizing the
monopolies in restraint of trade. Where have you met
that? Its in your Revised Penal Code. You cannot engage
in combinations and monopolist in restraint of trade.
Nagpundok mo, emloyees mo sa high factory. Unya
muingon lang mo ug kalit dili nami manarbaho if you do
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not raise our wages! employer says, nagsugod ta, kani
baya atong sabot unya karon ngano usbon man ninyo?!
basta! Dili nami! Kinahanglan pasakaan among sweldo!
the employers now filed a cased and they brounght it
under the Revised Penal Codecombinations and
monopolist in restraint of trade. Then, gradually, there
must be a decision--- the Labor Relations Law. Then, the
National Labor Relations Law specifically granting the
employees the right to form a union and bargain as one.
Once, there is the law, now, it is no longer combination
of monopoly in restraint of trade. What is the reason?
Why was it moved from combination to perfectly
organized? How was it moved? the original thinking is
Justice Holmes, a US Supreme Court justice. He said
how can something be wrong if all people say it when is
it not wrong if one man says it? kung muingon ang
trabahante awh, dili nako mutrabaho kay wa na patas-I
akong sweldo. Pahulay sa ko. If he is the only one whi
says that, is that wrong? Employer cannot do anything,
so be it. But if everybody says that, all of the sudden, it
becomes wrong. It becomes combination a monopolies in
restraint of trade.
Why are workers allowed to organize in order to
monopolize labor? Justice Holmes says, for the very
same reason why capital increase. If capitalists continue
to increase its income and is not illegal then likewise,
organizing should not be held illegal if they held together
and bargain as one.
The great labor leader Samuel Gamburs* in New York, he
was asked, you have engage in strike for the past 3
months, all textile factories in New York shut down, what
are you asking? we are asking for an increase of
wages. We are asking for increase of benefits. We are
asking for lesser working hours. We are asking for the
reduction of 8hours if you get that will you be satisfied?
Can we expect no more demands from you? he says
no, Mr. Senator, we will ask for more! Why? Because we
work more. We will be asking for more and more and
more! Are you not ashamed of asking for more? are
the capitalists ashamed of seeking for more and more
profits?! walay pag-undang kay wala may kinutuban sa
pagdugang sa pagkuha ug income. Thats the
background of the Labor Relations group.
All these benefits, all these issues that we will see, they
are based on laborers presenting counter arguments. You
need this so that you will have a depth of understanding
of this subject. You will understand the principles and you
can see where the growth is. It is still changing based on
new dissents, new counter arguments and new
situations.
Labor relations. If you have not yet bought a labor code,
the version accepted by the SC is Azucenas Labor Code.
There was the renumbering of the Labor Code because of
RA 10151 June 21, 2011. There was a renumbering. It
cites the old number. This is an expensive book. If you
cannot but this book, then have it book alike. That is not
a violation of the law. you are allowed to make one copy
for your personal use and not for commerce. There is no
violation of intellectual property if you make one copy for
yourself. Kung personal use lang. so long as you do not
sell it, basta for your own use. Wala nay problema. Ang
copier, siya ang nagviolate sa law. If wa jud kay budget,
go to the website of DOLE. Download it and print it [old
numbering pa gud ang naa sa DOLE, assumption lang ni
ni Father]. Commentaries, I suggest read Chan2
volumes blue book. That is the most expensive.
Alcantaras is also good but because he is old now, he
has no energy or inclination of revising his book.
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Last time we had 4 exams, we can have fewer exams. It
is divided into 7 topics:
o Right to self-organization
o Unions
o Certification on election
o Collective bargaining
o Unfair labor practice
o Strikes and lock-outs
o Remedies
Why is it divided into topics? Because the labor code is
the most disorganize law. so many revisions already.
Labor relations is Book V, but it is not at all in Book V,
there are other provisions outside Book V that are labor
relations. Labor code is as much a product of haste and
misguided. So, maraming mistakes. Originally this is a PD
of Marcos. No discussion. They just enacted this in 1974.
Marcos did not write this. Its Blas Ople. He never
finished his studies. He was a drop out. the precurosr law
of Labor Relation is Industrial Peace ActRepublic Act
875. That is the product of legislature, Congress in 1953.
By 1974, it was replaced.
Any other class cards?! [father started to read the names
on the green cards silently]. Are there any questions?
JUNE 26, 2014
8:00-9:00
ADCJ
The Constitutional provision of labor relations is centered
on the right to self organization. Art III Sec. 8 of the Bill
of Rights which provides:
The right of the people, including those employed in the
public and private sectors, to form unions, associations,
or societies for purposes not contrary to law shall not be
abridged
is precisely not a right to self organization
this is FREEDOM TO ASSOCIATION because the
right to self organization is defined under Article
252 [243] of the Labor Code.
Art. 252. COVERAGE AND EMPLOYEES RIGHT TO SELF-
ORGANIZATION. All persons employed in commercial,
industrial and agricultural enterprises and in religious,
charitable, medical, or educational institutions, whether
operating for profit or not, shall have the right to self-
organization and to form, join, or assist labor
organizations of their own choosing for purposes of
collective bargaining. Xxx
So what is the right to self organization?
It is to FORM, JOIN, ASSIST labor
organizations of their own choosing for
purposes of collective bargaining
Self organization is directly related to collective
barganing.
If there is no collective barganing, there is no right to self
organization. What is it then if there is no collective
bargaining?
It is the exercise of freedom of association.
What is freedom of association?
It is to form, join or assist labor organization for
purposes not contrary to law. If your
purpose is not contrary to law then that is
exercising freedom of association.
What is the essence of freedom of association?
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Not only physical proximity that you are
together. Just because you are together here in
this classroom does not mean that you are
exercising a freedom of association. In fact, you
are not free here. You are not exercising your
freedom here. Just because you are physically
juxtapose to each other. That is not freedom of
association.
Freedom of association in its essence is
solicitation. You can exercise that even if
you are not physically juxtapose to each other.
All you need is the devicelike cellular phone to
reach the other party. Appointments are
possible because of that device. So much so if
no appointment was set. Kita na lang ta unya
reply: k [or seen LOL!]. that is the essence
of freedom of associationsolicitation.
Father talked about the Islamic State of Iraq and Syria
(ISIS). This organization is soliciting; their fighters talk in
French, German, Chinese because that is the main wave
of revolutionaries. Solicitation. That is freedom of
association
NO THAT IS NOT FREEDOM OF
ASSOCIATION, because their purpose is
contrary to law.
During Marcos time, if you say let us go against Marcos
that is considered contrary to law. so therefore, you are
not exercising freedom of association.
SELF ORGANIZATION
Not the subject that exercise the right that defines the
organization. What is the organization that is formed
when you decide to bond together for the purpose of
collective bargaining? You bargain collectively? Matod pa
sa mamumuo, hiniusang paghangyo ug pag-abot ug
kasabutan. Kamong tanang naghiniusang makigsabot
bahin sasweldo, oras ug trabaho. Dili ra dapat usa ha.
Kamo tanan. Ngano kinahanglan man tanan?
Kinahanglan ang tanan kay kung usa ra contract of
adhesion na. Here is a contract! Take it or leave it!
what matters in this case is thath only 1 party put the
conditions and leaves the other party with no other
choice but either to take or leave it. That is the contract
of adhesion in the civil law language.
What is the attitude of the law with respect to
CONTRACT OF ADHESION? What is the presumption if
there are any problems in interpretation/ construction in
contracts of adhesion?
It is interpreted strictly against the monopolizer
who wrote the contents of the agreement. Any
doubt is interpreted against the one who made
it. Employer contract that only ____ to one
employer are contracts of adhesion. I dont care
what kind of contract it is. I just came across
with a contract. Its a job offer and then you are
asked to write your conforme. Free quarters,
free food, meals, the problem of the workers is
that they are becoming fat because of the
condition. At the end of the day, the employer
will say take it or leave it! Thank You. The
terms are not bad.
If it is such contract of adhesion in the PRIVATE SECTOR
individual workers, with all the more reason is the
contract of adhesion in government employment.
Makabuot ka ba sa imong trabaho sa gobyerno?
You cannot. In fact, if you cannot trace your
government position to some law, its not valid.
Your work in the government, your connection
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in the government is not valid. They call that in
Civil Service Office in your law on public officers
as a plantilla. There must be a plantilla. A
position and a commensurate compensation
attached to that position. If there is no plantilla,
then there is no government position.
How did you get to that position? It depends
elective or appointive positions. How do you
accept an elective postion? Take an oath. That
is the qualifying act, if it is an appointive
position, how do you accept it? Sign your
acceptance in the papers. You cannot be a
government employee unless you are appointed
or elected and you have accepted your
appointment and election.
So, what is true in private employement is even
more true in government. If you release an
individual contract of employment. If it is an
individual position in governmentappointive or
elective engagement.
In the very famous en banc decision:
Alliance of Government Workers vs. Minister of
Labor Employment
124 SCRA 1 [en banc] 1983
Justice Hugo Gutierrez
Hugo Gutierrez says, The Republic of the Philippines, as
sovereign, cannot be covered by a general term like
"employer" unless the language used in the law is clear
and specific to that effect.
So the Republic can never be an employer. He added,
The workers in the respondent institutions have not
directly petitioned the heads of their respective offices
nor their representatives in the Batasang Pambansa.
They have acted through a labor federation and its
affiliated unions. In other words, the workers and
employees of these state firms, college, and university
are taking collective action through a labor federation
which uses the bargaining power of organized labor to
secure increased compensation for its members.
This is talking about a collection of government
institutionSSS, GSIS, office of government institution
that added together and filed the petition with the courts
asking the court to declare that the government is
covered by the term employer that is found in PD
851which mandated a 13th month pay. They say 13th
month pay is universally given to all private employees!
Kami diay?! Government employees! Dili ba nato
maingon na ang employer also covers the
government? Gutierrez says, they have not run to their
heads of offices or to their representatives in the
Batasang Pambansasenators. Ask them to include the
government as employer in PD 851. What did they do?
They went to a labor federation, asking it to bargain for
them that the government be included so that they will
also receive 13th month pay just like everybody else.
Then, Hugo Gutierrez says, They have acted through a
labor federation and its affiliated unions. In other words,
the workers and employees of these state firms, college,
and university are taking collective action through a labor
federation which uses the bargaining power of organized
labor to secure increased compensation for its members.
Since the terms and conditions of government
employment are fixed by law, government workers
cannot use the same weapons employed by workers in
the private sector to secure concessions from their
employers. In government employment, however, it is
the legislature and, where properly given delegated
power, the administrative heads of government which fix
the terms and conditions of employment. And this is
effected through statutes or administrative circulars,
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rules, and regulations, not through collective bargaining
agreements.
In short hand, there cannot be collective bargaining in
the government because the terms and conditions are
fixed by law not by collective bargaining . Is that not
contrary to what the Constitution says under
Article IX B Sec. 2 [par.5] The right to self-
organization shall not be denied to government
employees.? Hugo Gutierrez answered, tell that to the
marines. Thats the problem when people do not have
clear ideas. It is denied government employees. You
cannot bargain. If you can bargain, then those
congressmen are out of work. They determine what are
the terms and conditions of work in the government. If
you can bargain and you are a government employee
then you are actually saying you cannot determine the
terms and conditions of work. Hugo Gutierrez just said
and the whole court spoke for him.
And then Article III Sec. 8 says The right of the
people, including those employed in the public and
private sectors, to form unions, associations, or
societies for purposes not contrary to law shall not
be abridged. Its a good thing that they said unions
they did not say labor organization because labor
organization is that organization of the employees
purposely in part or in whole, the purpose is collective
bargaining. There can be other aggrupations of workers.
Article 252 of the labor code second sentence, after
describing the right to self organization, says may
form labor organizations for their mutual aid and
protection. Not necessarily for collective bargaining.
Give me an example of workers group for mutual aid and
protection.
MUTUAL AID, example, Ateneo de Davao employees
teaching and non-teaching ATENEO EMPLOYEES CREDIT
COOPERATIVE. It answers their credit needs. Gusto ka
manghuram. The College faculty here, high school
faculty, grade school faculty are exercising their right to
self organization. They have a union. The non-teaching
staff has also a labor organization registered in the
Department of Labor. The credit union has all of them in
that organization, teachers and non-teaching. They have
the same membership. One is called a credit cooperative,
the other is called a labor organization. Why? Because
the labor organization is for collective bargaining. They sit
with the school administration every 5 years to draw up
the Collective Bargaining Agreement [CBA]. The credit
union does not sit in a collective bargaining. Its general
assembly meets every year to elect its board of directors
and to distribute its patronage refund. That is
equivalent to dividends ____________. Thats an
example of mutual aid. Unsay tumong? Nagtinabangay
mo. That is mutual aid.
How about groups ofworkers that bond for their
protection? What can we think of is that group of workers
bond together in the form of a mortuary society to
protect themselves against the contingency of death.
What is the purpose of their contribution? They have
bylaws that they will give for every member who dies and
they will give it to the heirs, successors- in- interest
certain amount of money taken from their annual
contribution of the members. Sa adlaw nga mamatay ka,
wa na kay problema. Wa na silay problema. They will be
given that amount because these ontibutions are
supposed to be for protection against the contingency of
death. Thats the kind of organization that our law said if
you contribute not that you will be given the benefit.
Tagaan gani ka sa benepisyo ana, patay na ka. Malipay
ka nga sige ka ug contribute. Wa na gani ka
nagacontribute, wa na. Patay na. MUTUAL AID AND
PROTECTION.
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Can a union engage in a mutual aid and
protection? THERE IS NO PROHIBITION. The law only
says that when you define a labor organization, Article
219[g] Labor Organization means any union or
association of employees which exists in whole or
in part for the purpose of collective bargaining or
of dealing with employers concerning terms and
conditions of employment. So, thats the purpose.
Once, that is your purpose and you want to be
recognized as such, that you want to go in the collective
bargaining, there is another requirement. You have to
register yourself in DOLE then you become a legitimate
labor organization. Later on, you will that.
When you are a labor organization, can you
engage in credit union activity? NO PROBLEM. You
can register yourself also as a credit cooperative.
Can you engage in business and register yourself
also in SEC as a corporation? NO PROBLEM. You can
als register. Just like what happened in Cebu Seamens
Organization vs. Secretary of Labor. Pag-organize
nila as a union, nagsugod sila. Katong incharge, gi-ingnan
na i-rehistro na. wa man niadto sa DOLE, niadto man sa
SEC. so, articles ug bylaws registered sila sa SEC. karon
na gusto na sila mag-collective bargaining, dili man sila
recognize sa DOLE. So, giusab na sad nila. Naa na sad
silay bag-ong articles and bylaws unya giregister nila sa
DOLE. Ok ba? No problem. Karon, nag-away man sila kay
sa wa pa sila narehistro sa DOLE, nagsugod na sila ug
kolekta ug union dues. Unya gikuptan man sa treasurer
sa designated in the articles of registration sa SEC. so,
walay pundo ang official elected and registered of the
DOLE. 2 sets of officers running the same organiation:
SEC AND DOLE. Kinsa may tinuod na officers niana?
Kinsa man ang naay katungod na mukupot sa kwarta?
The Secretay of Labor says, as far as we are concern,
we only respect the registration as labor organization. So,
no other registration can give you standing to collectively
bargain. You cannot collectively bargain unless you
register with the DOLE. That is another requirement in
the kabor organization. Once you register then you are a
legitimate labor organization.
Now, if you are not registered unsa man ka?
illegitimate?! Since the bias of the law is for workers
who exercise their right to self organization, if you are a
labor organization not registered, you are on the way to
be a legitimate YOU ARE NOT ILLEGITIMATE! There is
no hindrance for you to register.
So, as long as some part of your purpose for collective
bargaining that is enough. You are a labor organization.
And if you are registered, you are a legitimate labor
organization. Now, you can file a petition to be elected
among the workers as their representative. Unless you
are registered, you cannot be in an election as a
candidate for the workers.
Can a group of workers have more than 1 labor
organization? YES THEY CAN HAVE. Although, for
registration, you must allege that at least 20% of your
bargaining unit is in the labor organization. Technically
speaking, 5 labor organizations can do that. 100%= 5 for
20% in the labor organization. But in the end, there can
only be one who will be exclusive bargaining agent for
the workers. In the end? How is it done? Election. And
this one is really exclusive. What do you mean by the
word exclusive? The individual cannot even bargain for
himself. All individual contract ceases and only the union,
labor organization which is the exclusive bargaining agent
can agree as to the terms and conditions of workers.
That is one of the very rare exceptions in the CONTRACT
OF AGENCY. Contract of agency is really built on trust
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From the Lectures and Hand-Outs of Father Agustin L. Nazareno
and confidence. It can be terminated anytime even if
there is an agreed expiration. Once you no longer have
trust and confidence in your agent, you can terminate it
at anytime even if there is a time frame. Atty-client is a
form of agency. Can you terminate an attorney-client
relationship that is placed on a contingency fee
agreement? YES. SC said yes, you can once there is no
more trust and confidence.
Ikaw, naa ka sa labor union. Siya, may mu-collectively
bargain. Muingon ka, wa nako kagusto sa inyong
ginahimo! I terminate! I will seek to bargain for myself!
Dili nako! Can you do that? YOU CANNOT. The
agreement is even exclusive of the principal himself. You
cannot terminate. You can only terminate it if there is a
massive or everybody, overwhelming majority, is saying
no more and there must be some wrong doing on the
part of the labor union. Then you can terminate.
Exclusivity is termed 5 years; exclusive even of the
principal. Grabe ang surrender nimo sa imong rights to
the labor organization. It is one of the rare exceptions of
agency.
JULY 2, 2014
c/o ADCJ
Assignments:
Go over EO 180---in the public sector compare
this with private sector
Managerial, supervisors, rank-in-file, confidential
[private vs. public sector]: high level- highly
technical, members of the AFP, PNP, Jail
Guards, firemen [special groups in the public
sector]
Whether there is a material difference between
these different groups of workers
Compare terminologies [what is the terminilogy
in private vs. public]
o Labor organization
o Legitimate labor organization
o Exclusive bargaining agent
o How do you become exclusive?
o Do you really bargain?
o What is it that you bargain in the
private sector?
o What are the consequences, if you are
stop in the private sector in your right
to self-organization?
o How about in the public sector?
July 9, 2014
BIA
Alright what we are discussing in the right of self-
organization is the seat of that right. The seat of that
right is the natural person who is the employee (EE).
[Types of Persons Involved in Contracts enumerated by
Fr.]
In an Employer-Employee (ER-EE) contract:
the one who renders service is always a natural
person, it cannot be a juridical person.
The party to whom the service is rendered, can
be either a natural or juridical person
But the one who renders service is ALWAYS a
natural person.
But there can be a contract for the rendition of service:
between a natural and a juridical person.
A juridical person can render service to a natural
person
And there can be a contract to render service:
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between 2 juridical persons.
But the moment the one rendering service is, in
an ER-EE relationship, it cannot be both a
juridical person.
Lets put it to context. You have taken up legal ethics in
first year. A lawyer renders service to his client. If it is a
general retainer, the rendition of service is not with
respect to any particular case. If it is rendition of service
with respect to a particular case, what is it called? It is a
specific retainer.
Now, can it be that the one who renders legal service is a
juridical person? You have taken it up in legal ethics, the
answer is no. Thats the reason why the practice of the
legal profession cannot be carried out by a juridical
person. Why? Because these are services with legal effect
and there can arise from the rendition of service civil if
not criminal liabilities. Juridical persons cannot be put to
jail. Thats why the practice of the law cannot be the
subject of the purpose of a corporation.
Likewise rendition of service that entail civil or criminal
liability cannot be exercised by juridical person. You
cannot have an accounting corporation, at least in this
jurisdiction. In other jurisdictions, you can, they have
stretched their laws, but in the Philippines, it still remains
that in independent external accountant must always be
a natural person. Yet the relationship is not an ER-EE.
The accountant is not your EE, the external independent
auditor. Im not talking about the managerial accountant
in your company. The external auditor, because it has
civil as well as criminal liabilities.
Now, the quest of the practice of medicine. Thats the
most proximate form of both criminal or civil liability. Di
mahimong corporation mutambal nimo, diba, hiluan pa
lang ka ana. The liability is personal.
Im stressing this point because later on we will see
collective bargaining. A collective bargaining agreement
(CBA) is entered into between 2 juridical persons.
Normally, the ER is a corporation, and then the one who
signs the contract is NOT an individual, it is a union. Its a
labor organization that has a separate and distinct
personality if it is registered with the DOLE. Thats the 2nd
part of this topic we are dealing with- right of self
organization.
Is the union possessed with the right of self organization?
Strictly speaking it does not possess this right
because the SEAT of this right is the
INDIVIDUAL EMPLOYEE .
SECONDARILY, HOWEVER, because it is made
up of workers that have banded together
precisely to enter into collective bargaining, then
secondarily, it may claim prerogatives of self
organization.
BUT in the first instance, it is with the
INDIVIDUAL WORKER who has the right to self
organization.
So we go down the line, what are the classification of
workers?
In labor standards you have seen classification of
workers, we there are:
1. Rank and File
2. Managerial Article 82. "Managerial
employees" refer to those whose primary duty
consists of the management of the
establishment in which they are employed or of
a department or subdivision thereof, and to
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 Lectures on Labor Relations
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other officers or members of the managerial
staff.
Is that [definition of managerial] the same as in Labor
Relations?
Article 219 (m). "Managerial employee" is
one who is vested with the powers or
prerogatives to lay down and execute
management policies and/or to hire, transfer,
suspend, lay-off, recall, discharge, assign or
discipline employees. That is managerial EE-
proper.
Then there is the supervisory EEs which IS NOT PRESENT
IN LABOR STANDARDS:
[In LabStan] The supervisory EEs in labor
standards is STILL the managerial EE, hes not
entitled to overtime, hes not entitled to night
shift differential because it is still classified as
Managerial EE.
Article 82. Coverage. The provisions of this Title shall
apply to employees in all establishments and
undertakings whether for profit or not, but not to ...
managerial employees
But in [LabRel] the [Supervisory] EE can now
exercise the right to self organization even if it is
in a limited fashion. Art. 219 (m) Supervisory
EEs are those who, in the interest of the
employer, effectively recommend such
managerial actions if the exercise of such
authority is not merely routinary or clerical in
nature but requires the use of independent
judgment.
And what is the definition of rank and file EEs in LabRel?
Article 219 (m). All employees not falling within
any of the above definitions are considered
rank-and-file employees for purposes of this
Book. So those who are not managerial or
supervisory
Now, is that all? There is a 4th category of worker. Where
is that found? In jurisprudence, that is the case of a
confidential EE.
TUNAY NA PAGKAKAISA NG MANGGAGAWA SA
ASIA BREWERY vs. ASIA BREWERY, INC.
(626 S 376). August 3, 2010.
Penned by VILLARAMA, JR.
Confidential employees are defined as those
who (1) assist or act in a confidential capacity, (2) to
persons who formulate, determine, and effectuate
management policies in the field of labor relations. The
two (2) criteria are cumulative, and both must be met if an
employee is to be considered a confidential employee
that is, the confidential relationship must exist between the
employee and his supervisor, and the supervisor must
handle the prescribed responsibilities relating to labor
relations. The exclusion from bargaining units of
employees who, in the normal course of their duties,
become aware of management policies relating to labor
relations is a principal objective sought to be accomplished
by the confidential employee rule.
Now, confidential EEs are in a separate category because
they DO NOT:
1. lay down and execute management policies
and/or
2. have the power to hire, transfer, suspend, lay-
off, recall, discharge, assign or discipline
employees
III Manresa 2014-2015
AND YET the law considers them as in the same
category as managerial EE and the law does not allow
them to exercise the right to self organization.
Why? Because just LIKE THE MANAGERIAL EE, the
Confidential EE acts in the interest of the ER directly or
indirectly specially if the ER is a juridical person. It is
management who acts for and in behalf of the ER. You
will later on find out that a juridical person can only act if
there is a natural person. By its very nature, it must exist
only in contemplation of the law, it really cannot act for
itself. It needs a natural person.
In ER-EE relationship, when an ER who is a juridical
person enters in a contract with an EE who is a natural
person, it is only through the mediation of another
natural person. Why? Because the juridical person does
not have the ordnance of the natural person. It cannot
even sign its name to a written contract. Why? Because it
has no hands, it needs the hands of a natural person to
sign the contract. It cannot give its consent to a hiring,
unless there is natural person who gives the consent [for
and in behalf] of the juridical person.
So if the agent of the juridical person without whom the
juridical person cannot act, is allowed to act to bargain
with the juridical person, what happens? CONFLICT OF
INTEREST.
Diri sa ato, naya lisensyado na real estate broker
nakapasag exam. Lisensyado na sila magbaligyag yuta.
Naa silay ginatawag na diser(?) muingon sad na sila na
broker ko pero wala na sila nakapasa. Muduol na sila sa
imo muingon na mamaligya silag yuta. Paghuman nilag
ingon sa imo sa presyo, theyre speaking for the buyer
ha, muingon kag ipababa gamay nang presyo nimo.
Mupalit silag yuta para sa ilahang buyer, mangayo sad
silag commission sa ilahang seller. Is there nothing wrong
with that? You should see that you cannot be the agent
of both. Very few realize that that is illegal, but that is
common practice. Why? The interest of the buyer and the
seller are irreconcilable. Why? Buyer is interest in the
lowest price, the seller is interested in the highest price.
Kung ikaw tig pama-ba, the representative spokesman of
the buyer, muingon ka, nangita ko para sa imo, paubusa
ang presyo. Muadto napud ko diri [seller], mamaligya ko
para sa imo para naa koy commision, pataasa ang
presyo. Kang kinsa man ka, sa buyer or sa seller?
Tangtanga nang yuta, tangtanga na tanan! Ibutang
nimo:
Seller of labor
Buyer of labor
[on one hand] the buyer of labor cannot speak kay wala
siyay baba, wala siyay kamot, mao na naa siyay ahente
niya. Mao nay management, managerial EE. Muingon siya
mupalit kog labor.
Unya diri [on the other hand. Haha] ang mga labourers
magform ug union. Naa sad silay pamaba. Muingon sila,
oh, pila may sweldo pangyuon nimo. Muadto ang
tigpamaba sa iyahang mga trabahante, pila man? Ingnon
dayon nila ilahang presyo.
Karon kaning tigpamaba [sa seller of labor] muingon siya
na sabot nalang sa lagi ta kay miyembro man sad ko
ninyo. The law says you cannot do that because you
cannot run with the rabbits and bark with the dogs at the
same time. That is an illegal anomaly. It ceases to be a
contract that is arms length. Where did you hear that
word? TAX!
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That is the reason why the managerial EE, because he or
she, by necessity acts for the ER, he cannot bargain with
the ER kay otherwise luoy kaayo ang ER.
Now, if you are a confidential EE, the SC says the law
does not disqualify a confidential EE from bargaining, but
because of the confidential EE is in the same boat as the
managerial EE, it can betray the management, the ER,
because he possesses confidential information. That is
their labor relationship. Then, the law prohibits him from
joining a union, the same prohibition as managerial EE.
Now, in the past history, jurisprudence, the SC has said
confidential EE MAY join the supervisory EE, and then he
cannot join rank and file EE, and then the SC he cannot,
finally in the last decision the SC says NO HE CAN
REALLY NOT JOIN ANY UNION.
So is that judicial legislation? Because the law does not
provide.
The SC calls this as the doctrine of necessary
implication.
This is not the first time the SC has enunciated that
doctrine. You are familiar with that in persons and family
relation, Matabuena vs. Cervantes. SC says:
spouses are prohibited from making donations
to each other, why? Because there might be
undue and improper influence.
And secondly, that is a very convenient
contrivance to escape your obligations to your
creditor where the wife cannot pay, so she
conveniently donates the property to her
husband. So shell say, I dont have money
anymore, but Ive already done all my shopping.
My credit card is busted.
The SC prohibits that, undue and improper
influence.
Now, how about if you are in a non-legal relationship?
You are in a common law relationship, or an irregular
relationship. Can there be a possibility of undue and
improper influence?
The SC says YES with all the more reason. So
therefore, the same prohibition of donating to
spouses is operative in cases of the party and
his or her irregular partner, paramour, mistress.
PLEASE DO NOT SAY LEGAL WIFE OR ILLEGAL
WIFE. Para na saw ala nakatuon ug law,
muingon gani kag wife, legal na. Spouse, wife,
that is LEGAL, wala may illegal wife. Pagkaluoy
nalang mga nanulat anang salidaha, anang
script. They are perpetuating ignorance.
So a paramour, a mistress, is not mentioned in the law
[persons and family relations] and yet the SC says the
same prohibition applies. Or is there another law? Is it
not explicit in the law?
So, managerial EEs together with confidential EEs are no
longer allowed to organize.
Supervisory EEs they can form unions and organizations
among themselves. So the law allows them a specific
bargaining unit for supervisory EES.
If you read [cited below] Justice Mendoza has a very long
disquisition there about the types of managerial EEs. Hes
just trying to show that hes taken up some management
courses, probably MBA. Thats nothing.
UNITED PEPSI-COLA SUPERVISORY UNION
(UPSU), petitioner, vs. HON. BIENVENIDO E.
LAGUESMA and PEPSI-COLA PRODUCTS,
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PHILIPPINES, INC. respondents.
[G.R. No. 122226. March 25, 1998]
Penned by Justice Mendoza
FIRST-LINE MANAGERS The lowest level in an
organization at which individuals are responsible
for the work of others is called first-line or first-
level management. First-line managers direct
operating employees only; they do not supervise
other managers. Example of first-line managers
are the foreman or production supervisor in a
manufacturing plant, the technical supervisor in
a research department, and the clerical
supervisor in a large office. First-level managers
are often called supervisors.
MIDDLE MANAGERS The term middle
management can refer to more than one level in
an organization. Middle managers direct the
activities of other managers and sometimes also
those of operating employees. Middle
managers principal responsibilities are to direct
the activities that implement their organizations
policies and to balance the demands of their
superiors with the capacities of their
subordinates. A plant manager in an electronics
firm is an example of a middle manager.
TOP MANAGERS Composed of a comparatively
small group of executives, top management is
responsible for the overall management of the
organization. It establishes operating policies
and guides the organizations interactions with
its environment. Typical titles of top managers
are chief executive officer, president, and
senior vice-president. Actual titles vary from
one organization to another and are not always
a reliable guide to membership in the highest
management classification.
As can be seen from this description, a distinction exist
between those who have the authority to devise,
implement and control strategic and operational policies
(top and middle managers) and those whose task is
simply to ensure that such polices are carried out by the
rank-and-file employees of an organization (first-level
managers/supervisors). What distinguishes them from
the rank-and file employees is that they act in the
interest of the employer in supervising such rank-and-file
employees.
Managerial employees may therefore be said to fall into
two distinct categories: the managers per se, who
compose the former group described above, and the
supervisors who form the latter group. Whether they
belong to the first or second category, managers, vis--
vis employers, are, likewise, employees
The only relevant classifications of management for labor
relations are if you are supervisory or you are
managerial. If you are supervisory, you have a limited
exercise.
Theres an old old case which involves the Cebu _______
[sorry no citation].
A managerial EE who is a supervisor is in the front line,
when the rank and file organized a union. And then, top
management found out that because he made
concessions with them allowing some of the union
leaders to have leaves so that they can have
organizational meetings. So the top management that
found out about this about their superintendants. It was
investigated and management found out that he could
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From the Lectures and Hand-Outs of Father Agustin L. Nazareno
not be trusted, so dismissed. What happened? The
supervisor, he was booted, the union found out and said
that we will take up your case.
You know in the law that once of the incidence of a union
is that it can represent you in a case. And the union
officers can be your legal counsel even if they have not
passed the bar. And I tell you you will meet these labor
leaders who know their labor law and jurisprudence
better than you because thats the only thing they do.
So they said come with us, take an oath, you are our
member and we will file a case. So they filed a case.
Management moved to dismiss, why? Because according
to management a supervisor cannot join a union, a
managerial EE cannot a join a union. This is a union of
rank and file, you cannot join them.
And sure enough, during that time, the CIR said,
CORRECT! You cannot, you are prohibited by law. They
went up to the SC.
Held: It is true you are prohibited from joining a union for
purposes of collective bargaining. IS collective bargaining
involved here? NO! This is litigation. There is no chance
at all for conflict of interest. Therefore, sine this
supervisor is now a bona fide member of the union, he is
entitled to the services of the union.
So take note, if management forms an association among
themselves for purposes other than collective bargaining,
the [prohibition against the] right to self organization
CANNOT BE INVOLVED. There is a precise reason for the
prohibition against management to join a union, where
that is not present, then the prohibition cannot be
invoked. You are up against the FREEDOM OF
ASSOCIATION, and that is a CONSTITUTIONAL RIGHT.
Alright, now, I asked you to read E.O. 180:
EXECUTIVE ORDER NO. 180 June 1, 1987
PROVIDING GUIDELINES FOR THE EXERCISE OF
THE RIGHT TO ORGANIZE OF GOVERNMENT
EMPLOYEES, CREATING A PUBLIC SECTOR LABOR-
MANAGEMENT COUNCIL, AND FOR OTHER
PURPOSES
In accordance with the provisions of the 1987
Constitution, I, CORAZON C. AQUINO, President of the
Philippines, do hereby order:
I. Coverage
Sec. 1. This Executive Order applies to all employees of
all branches, subdivisions, instrumentalities, and
agencies, of the Government, including government-
owned or controlled corporations with original charters.
For this purpose, employees, covered by this Executive
Order shall be referred to as "government employees".
Sec. 2. All government employees can form, join or assist
employees' organizations of their own choosing for the
furtherance and protection of their interests. They can
also form, in conjunction with appropriate government
authorities, labor-management committees, works
councils and other forms of workers' participation
schemes to achieve the same objectives.
Sec. 3. High-level employees whose functions are
normally considered as policy-making or managerial or
whose duties are of a highly confidential nature shall not
be eligible to join the organization of rank-and-file
government employees.
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Sec. 4. The Executive Order shall not apply to the
members of the Armed Forces of the Philippines,
including police officers, policemen, firemen and jail
guards.
II. Protection of the Right to Organize
Sec. 5. Government employees shall not be discriminated
against in respect of their employment by reason of their
membership in employees' organizations or participation
in the normal activities of their organization. Their
employment shall not be subject to the condition that
they shall not join or shall relinquish their membership in
the employees' organizations.
Sec. 6. Government authorities shall not interfere in the
establishment, functioning or administration of
government employees' organizations through acts
designed to place such organizations under the control of
government authority.
III. Registration of Employees' Organization
Sec. 7. Government employees' organizations shall
register with the Civil Service Commission and the
Department of Labor and Employment. The application
shall be filed with the Bureau of Labor Relations of the
Department which shall process the same in accordance
with the provisions of the Labor Code of the Philippines,
as amended. Applications may also be filed with the
Regional Offices of the Department of Labor and
Employment which shall immediately transmit the said
applications to the Bureau of Labor Relations within three
(3) days from receipt thereof.
Sec. 8. Upon approval of the application, a registration
certificate be issued to the organization recognizing it as
a legitimate employees' organization with the right to
represent its members and undertake activities to further
and defend its interest. The corresponding certificates of
registration shall be jointly approved by the Chairman of
the Civil Service Commission and Secretary of Labor and
Employment.
IV. Sole and Exclusive Employees' Representatives
Sec. 9. The appropriate organizational unit shall be the
employers unit consisting of rank-and-file employees
unless circumstances otherwise require.
Sec. 10. The duly registered employees' organization
having the support of the majority of the employees in
the appropriate organizational unit shall be designated as
the sole and exclusive representative of the employees.
Sec. 11. A duly registered employees' organization shall
be accorded voluntary recognition upon a showing that
no other employees' organization is registered or is
seeking registration, based on records of the Bureau of
Labor Relations, and that the said organizations has the
majority support of the rank-and-file employees in the
organizational unit.
Sec. 12. Where there are two or more duly registered
employees' organizations in the appropriate
organizational unit, the Bureau of Labor Relations shall,
upon petition, order the conduct of a certification election
and shall certify the winner as the exclusive
representative of the rank-and-file employees in said
organization unit.
V. Terms and Conditions of Employment in
Government Services
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From the Lectures and Hand-Outs of Father Agustin L. Nazareno
Sec. 13. Terms and conditions of employment or
improvements thereof, except those that are fixed by
law, may be the subject of negotiations between duly
recognized employees' organizations and appropriate
government authorities.
VI. Peaceful Concerted Activities and Strikes
Sec. 14. The Civil Service laws and rules governing
concerted activities and strikes in the government service
shall be observed, subject to any legislation that may be
enacted by Congress.
VII. Public Sector Labor-Management Council
Sec. 15. A Public Sector Labor Management Council,
hereinafter referred to as the Council, is hereby
constituted to be composed of the following:
1) Chairman, Civil Service Commission Chairman
2) Secretary, Department of Labor and Employment Vice
Chairman
3) Secretary, Department of Finance Member
4) Secretary, Department of Justice Member
5) Secretary, Department of Budget and Management
Member
The Council shall implement and administer the
provisions of this Executive Order. For this purpose, the
Council shall promulgate the necessary rules and
regulations to implement this Executive Order.
VIII. Settlement of Disputes
Sec. 16. The Civil Service and labor laws and procedures,
whenever applicable, shall be followed in the resolution
of complaints, grievances and cases involving
government employees. In case any dispute remains
unresolved after exhausting all the available remedies
under existing laws and procedures, the parties may
jointly refer the dispute to the Council, for appropriate
action.
IX. Effectivity
Sec. 17. This Executive Order shall take effect
immediately.
Done in the City of Manila, this 1st day of June, in the
year of Our Lord, nineteen hundred and eighty-seven.
Remember in the beginning we said there is really no
bargaining in government. The very essence of
bargaining is wages, you bargain for wages, how much
are you going to receive. But that is already decided by
the law. If you are a government EE, you cannot go
beyond the standardization of salaries act. That is
dictated by law. So it is congress that determines the
wages. There cant be collective bargaining, you can only
arrive at agreements with respective to NON-SALARY
TERMS of the workers, when you take your leave- all
those cosmetic features of collective bargaining.
And YET, EO 180 says there are certain government EEs
who cannot join an EEs organization. Who are those?
1. High level EEs - Sec. 3. High-level employees
whose functions are normally considered as:
a. policy-making or
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b. managerial or
c. whose duties are of a highly
confidential nature shall not be eligible
to join the organization of rank-and-file
government employees.
2. Members of the AFP, including police,
police officers, firemen, and jail guards -
Sec. 4. The Executive Order shall not apply to
the members of the Armed Forces of the
Philippines, including police officers, policemen,
firemen and jail guards. So this last group is
peculiar to the government service.
Now there are some commentators who say AFP
members and officers and police officers and security
guards are not allowed to form an EEs organization in
government because they have fire arms. They might
attack their high-level officers. If that is the reason, then
in the private sector, security guards should also not be
allowed to form unions.
But now, precisely, that particular provision which denies
guards to form unions; but still security guards are
allowed to form unions. That is in the MERALCO case [dili
ni sure, ako lang nangita ani na case. ]
MANILA ELECTRIC COMPANY, petitioner, vs. THE
HON. SECRETARY OF LABOR AND EMPLOYMENT,
STAFF AND TECHNICAL EMPLOYEES ASSOCIATION
OF MERALCO, and FIRST LINE ASSOCIATION OF
MERALCO SUPERVISORY EMPLOYEES,
respondents.
G.R. No. 91902 May 20, 1991
Penned by: MEDIALDEA, J.
We shall now discuss the rights of the security guards to
self-organize. MERALCO has questioned the legality of
allowing them to join either the rank and file or the
supervisory union, claiming that this is a violation of par.
2, Sec. 1, Rule II, Book V of the Implementing Rules of
RA 6715, which states as follows:
Sec 1. Who may join unions. . . .
xxx xxx xxx
Supervisory employees and security
guards shall not be eligible for
membership in a labor organization of
the rank-and-file employees but may
join, assist or form separate labor
organizations of their own; . . .
xxx xxx xxx
(emphasis ours)
Paragraph 2, Sec. 1, Rule II, Book V, is similar to Sec. 2
(c), Rule V, also of Book V of the implementing rules of
RA 6715:
Rule V.
REPRESENTATION CASES AND
INTERNAL-UNION CONFLICTS
Sec. 1. . . .
Sec. 2. Who may file.Any legitimate
labor organization or the employer,
when requested to bargain collectively,
may file the petition.
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The petition, when filed by a legitimate
labor-organization shall contain, among
others:
(c) description of the bargaining unit
which shall be the employer unit unless
circumstances otherwise require; and
provided further, that the appropriate
bargaining unit of the rank-and-file
employees shall not include supervisory
employees and/or security guards;
xxx xxx xxx
(emphasis ours)
Both rules, barring security guards from joining a rank
and file organization, appear to have been carried over
from the old rules which implemented then Art. 245 of
the Labor Code, and which provided thus:
Art. 245. Ineligibility of security
personnel to join any labor
organization.Security guards and
other personnel employed for the
protection and security of the person,
properties and premises of the
employer shall not be eligible for
membership in any labor organization.
On December 24, 1986, Pres. Corazon C. Aquino issued
E.O. No. 111 which eliminated the above-cited provision
on the disqualification of security guards. What was
retained was the disqualification of managerial
employees, renumbered as Art. 245 (previously Art. 246),
as follows:
Art. 245. Ineligibility of managerial
employees to joint any labor
organization.Managerial employees
are not eligible to join, assist or form
any labor organization.
With the elimination, security guards were thus free to
join a rank and file organization.
On March 2, 1989, the present Congress passed RA 6715.
2 Section 18 thereof amended Art. 245, to read as
follows:
Art. 245. Ineligibility of managerial
employees to join any labor
organization; right of supervisory
employees.Managerial employees are
not eligible to join, assist or form any
labor organization. Supervisory
employees shall not be eligible for
membership in a labor organization of
the rank-and-file employees but may
join, assist, or form separate labor
organizations of their own. (emphasis
ours)
As will be noted, the second sentence of Art. 245
embodies an amendment disqualifying supervisory
employees from membership in a labor organization of
the rank-and-file employees. It does not include security
guards in the disqualification.
The implementing rules of RA 6715, therefore, insofar as
they disqualify security guards from joining a rank and
III Manresa 2014-2015
file organization are null and void, for being not germane
to the object and purposes of EO 111 and RA 6715 upon
which such rules purportedly derive statutory moorings.
In Shell Philippines, Inc. vs. Central Bank, G.R. No.
51353, June 27, 1988, 162 SCRA 628, We stated:
The rule-making power must be
confined to details for regulating the
mode or proceeding to carry into effect
the law as it has been enacted. The
power cannot be extended to
amending or expanding the statutory
requirements or to embrace matters
not covered by the statute. Rules that
subvert the statute cannot be
sanctioned. (citing University of Sto.
Tomas vs. Board of Tax Appeals, 93
Phil. 376).
While therefore under the old rules, security guards were
barred from joining a labor organization of the rank and
file, under RA 6715, they may now freely join a labor
organization of the rank and file or that of the
supervisory union, depending on their rank. By
accommodating supervisory employees, the Secretary of
Labor must likewise apply the provisions of RA 6715 to
security guards by favorably allowing them free access to
a labor organization, whether rank and file or
supervisory, in recognition of their constitutional right to
self-organization.
We are aware however of possible consequences in the
implementation of the law in allowing security personnel
to join labor unions within the company they serve. The
law is apt to produce divided loyalties in the faithful
performance of their duties. Economic reasons would
present the employees concerned with the temptation to
subordinate their duties to the allegiance they owe the
union of which they are members, aware as they are that
it is usually union action that obtains for them increased
pecuniary benefits.
Thus, in the event of a strike declared by their union,
security personnel may neglect or outrightly abandon
their duties, such as protection of property of their
employer and the persons of its officials and employees,
the control of access to the employer's premises, and the
maintenance of order in the event of emergencies and
untoward incidents.
It is hoped that the corresponding amendatory and/or
suppletory laws be passed by Congress to avoid possible
conflict of interest in security personnel.
How about the supervisor of the security guards? He can
join the supervisors union, not the security guards rand
and file union. There is no longer any prohibition.
So what is the reason why they are not allowed to form
an EEs organization [under Sec. 4]?
The only reason is that these are the types in
the organization that cannot have intermediary
organizations. You cannot have another unit
that mediates you and your unit.
If you are in the military, you must know the history of
your unit. Di man ta magsugod sa unsa man na giyera
atong naagian. Kay ngano man? That should be your unit
and there should be no other unit. Muingon imong
leader, advance! muingon dayon ka, kadali sa
magcollective bargaining sa ta. Mangamatay mong tanan
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kung ana! There cannot be any other unit in that case,
dira mana nagsugod ang hazing hazing.
The idea was to replicate the experiences of the
members of the past. If you are a member of the first
marine corps of the US which began in 1914, nagagi na
silag battle of something [sorry wala ko kasabot] *story
about war*. Ilaha nanag history, unsaon nimo pagusab
ana? Imong pasakiton ang mga tao na muagi sa imoha to
make you worthy of this unit. Mao na dira nagsugod ang
hazing. Hazing did not begin with brotherhood, because
brotherhood is not engendered by pain, it is engendered
in the alleviation of pain, not the generation of pain.
Unsaon nimo pagingon na brother nimo na nga maoy
nagpasakit nimo? Pagkabali ana. The contravening
separates the feelings of human nature. An gang dukduk
nimo ang mabuhat nimong brother. How can that
engender brotherhood? Kanong nagtabang nimo, katong
nagitsa sa iyahang kaugalingon on top of a grenade to
protect you, thats your brother. Wala man ka kaagi ana,
mao na pasakiton ka para pahinumdumon ka sa mga
niagi na member of the first marine corps. Unsa na ilang
ingon? The few, the proud, the marines.
Unya magunion pa mo?! Ayaw sa chief, magbargain ta.
Magadvance o magretreat pa ba mo diha. WALA! Kung
ingnon ka sa imong commander ATTACK, everybody
must attack. Nobody is left behind. Mao nay pasabot ana.
Ours is not to reason why, ours is but to do or die unto
the valley of death [The Last of the Light Brigade by
Rudyard Kipling] - the incontestability of the orders
drawn.
Thats the war mongers poem, it encourages war. *HS
poetry time*
In Flanders fields the poppies blow
Between the crosses, row on row,
That mark our place; and in the sky
The larks, still bravely singing, fly
Scarce heard amid the guns below.
We are the Dead. Short days ago
We lived, felt dawn, saw sunset glow,
Loved and were loved, and now we lie
In Flanders fields.
Take up our quarrel with the foe:
To you from failing hands we throw
The torch; be yours to hold it high.
If ye break faith with us who die
We shall not sleep, though poppies grow
In Flanders fields.
That is the reason why there are no unions in the
military. Kana diayng guardian, unsa manang guardian?
Dili na sila military, mga reserve na sila. Mga ROTC na
sila, pasinaw sa ilahang buckle.
July 10, 2014
First Part
Who are the actors in the public private sector?
Managerial, confidential, rank and file, and supervisory.
Limited exercise in the right to self-organization.
Supervisors. Under Art 254, second sentence:
Supervisory employees shall not be eligible for
membership in the collective bargaining unit of the rank
and file employees but may join, assist or form separate
collective bargaining units and/or legitimate labor
organizations of their own. The rank and file union and
the supervisors union operating within the same
establishment may join the same federation or national
III Manresa 2014-2015
union. What I just read is an amendment introduced by
RA 9481, effective June 14, 2007. Supervisory employees
have what is called a bargaining unit created by law
because they cannot join the rank and file union. They
have to form their own union. Because they can join only
their own bargaining unit, jurisprudence in the past has
been very strict in that if the supervisors union and the
rank and file union in the same establishment, mainly
they have a common employer, they cannot be affiliated
with one and the same labor federation. That is the
teaching of the SC until the law was amended. The
applicable case at that time was Dela Salle case. But then
that ruling has been explicitly overturned by the last
sentence of 254. The rank and file union and the
supervisors union operating within the same
establishment may join the same federation or national
union. That is not considered a violation of the bargaining
union created by law separating supervisors and rank and
file. What is the whole idea of separating supervisors and
rank and file? What is the reason behind that? The
reason behind that is labor dispute cont****. That is the
labor relations vocabulary. Supposed the rank and file
have an issue with management with respect to their
overtime rate or their night shift differential and they
would like management to adjust it in the upward
direction. If management does not grant it, that could be
a ground for economic strike. If they declare a strike and
the supervisors belong to the same federation as the rank
and files federation by affiliation, can they not ask the
supervisors to go on strike in sympathy with them? The
supervisors have no labor dispute with management and
yet they belong to the same union because their affiliated
with one and the same federation. That has been borne
out by many cases especially in the US. Muingon manang
rank and file, dili diay mo musunod sa amoa, wala moy
malasakit, pagbati, na kita may pinagsamahan man, usa
lang ta ka federation, bantay lang mo kung mucomplain
mo. Naa sab moy issue, gamay lang man mo supervisers,
unsaon man ninyo pag strike na maundang jud ang
trabaho sa employer? Thats the problem which was
supposed to be obviated by the so-called strict affiliation.
But now that is no longer the case. What has happened
to the separation of unions doctrine enunciated by dela
sale university vs laguesma 294s141 1998, that has been
overturned by Article 254 as amended.
There was also another case, Toyota Motors vs Toyota
Motors 268s573 1997. The petition to have an election of
the bargaining unit in Toyota was sought to be dismissed
by the employer because according to the employer, the
one filing the petition covers supervisory and rank and
file employees which is prohibited by law. They cannot be
in the same union. According to the management
counsel, the one applying for an election to be elected as
the sole and exclusive representative of the bargaining
unit is not a union. If it were, then it should be composed
solely of rank and file or supervisors. But in this case,
there are supervisors mixed there. So the one petitioning
has no standing. It is not a union. The SC upheld that.
Art 255. EFFECT OF INCLUSION AS MEMBERS OF
EMPLOYEES OUTSIDE THE BARGAINING UNIT. The
inclusion as union members of employees outside the
bargaining unit shall not be a ground for the cancellation
of the registration of the union. Said employees are
automatically deemed removed from the list of
membership of said union.
This one I am more in agreement with this. This
amendment is not so bad. Well find out later on that in
that particular phase of a certification election
proceeding, the so-called inclusion and exclusion
proceeding, they can determine who are in the union,
who should be there, who are within the bargaining unit,
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and who are without the bargaining unit. If the
bargaining unit is determined, whoever is mixed in is
automatically excluded. As far as the union is concern,
they may still be members, but as far as management is
concern they will not be covered by the exclusive
bargaining a****. They cannot benefit from whatever is
arrived at in the collective bargaining agreement. You can
be deemed outside the union. So that is another ruling
explicitly overturned by the latest amendments to the
labor code, by RA 9481.
Let us now go to the content of the Right to Self-
Organization. There are at least 4 distinct rights within
the so-called Right to Self-Organization. Some would say
there are 5, but for the time being, let us just say there
are 4. What is that?
The first is found in Art. 252. The right to form, join, or
assist labor organization of their own choosing for
purposes of collective bargaining.
You have the right to form, join, or assist that labor
organization who has won your heart. You cannot be
forced. What is the exception? The exception according
to the SC is a union security clause. The moment a union
becomes an exclusive bargaining agent because he has
been chosen by the bargaining unit as their
representative of the employees within that unit, then, he
can enter into an agreement with management for its
own security. For the duration of the contract, let us say
5 years, there can be an agreement that as to those who
are not yet members of any union, they can be forced to
join the union. That is the exclusive bargaining agent.
How? Let us say, the agreement will say, as soon as this
person becomes regular, he has 2 months within which
to secure membership with the incumbent exclusive
bargaining agent union. If he has already exercise his
right to self-organization, he is already a member of
another union, but that union did not win, he cannot be
forced because that would be a violation of his right to
self-organization because the right to self-organization
says you have the right to form, join, assist union of your
own choosing. You have already chosen, so you cannot
be forced to abandon you choice in favor even of the
exclusive bargaining agent. If you have had no choice
yet, you came in as a provisionary employee, you have
no union affiliation whatsoever, then, you can be
subjected to the union security clause. Know that if you
have not exercised your right to self-organization, you
can be forced to join the exclusive bargaining agent.
Remember, it must be exclusive bargaining agent. It
must be a representative, certified by the Department of
Labor and chosen by the workers. That is the time when
you can be compelled. The SC has said, the union
security clause is a contractual limitation on the right to
self-organization. One of the few instances where the
right to self-organization is limited because of a
contractual provision in the CBA. That has been asked in
the Bar examination several times. What is the relation
between a union security clause and the right to self-
organization? The answer is the union security clause is a
contractual limitation on the right to self-organization.
Second right that makes up the composite right to self-
organization. It is the right not to join any union. That is
found in jurisprudence. That is pronounced by the court
as early as 1974 in the case of Victoriano vs. Elizalde
Rope Workers Union, reiterating the doctrine earlier
pronounce by the court in Abo, et. al. vs. PHILAME
Employees Unioin, 1965. These are the words of Justice
Enrique Fernando before he became Chief Justice when
he penned the Victoriano case: It is clear, therefore, that
the right to join a union includes the right to abstain from
joining any union. Inasmuch as what both the
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Constitution and the Industrial Peace Act have
recognized, and guaranteed to the employee, is the
right to join associations of his choice, it would be
absurd to say that the law also imposes, in the same
breath, upon the employee the duty to join associations.
The law does not enjoin an employee to sign up with any
association. What is the authority of Justice Fernando for
saying that this is part and parcel of the right to self-
organization? Justice Fernando is saying, just as the
correlative of the freedom to associate is the freedom not
to associate. You have the freedom to form a union and
join it just as much as you have the freedom not to join
and assist. The trouble is there is a limit to you not
joining a union because you can be force under the union
security clause. What is the justification of forcing you to
join? The exclusive bargaining agent. The justification is
collective strength. To further strengthen union, to make
it co-equal with management so that it can bargain with
equal standing with management. Others can be force.
We copied our labor laws from the US. Is that the ruling
in the US? In the northern states, New York upwards,
that is the ruling. Thats why, the pa***** for union
strength there is the auto workers union. When you go
south, they are really holding strict to the freedom not to
associate as part and parcel of the freedom to associate.
Even when a union is already elected by the majority, the
minority can still say I will not join the union. I will
bargain for myself. That is why down south, there are no
unions. Without that, the union cannot exist. That is why
the new car factories are all in the south. They are in
New Mexico, Texas, because, these states are so-called
right to work state. Thats the opposite of union security
clause. Right to work state. Dili ko nmu mapugos pag apil
sa union under the pain of being dismissed by work
because I have the right to work. My right to work is
vested and except for a just or authorized cause, I should
not be penalized. Extraneous to that right to work is my
association. You cannot dictate with whom I should
associate. You can prevent me from associating if I have
already associated. But if I have not, nganung pugson
man ko nmu?
The state by passing this legislation is making a choice
that for the sake of industrial strength of the employees
who are weak if they are divided, they must be
strengthen. Thats why the union must be exclusive.
What gave you the right to make that decision? The
social contract that the citizen entered into by passing
the Constitution because in that Constitution is the Social
Justice Provision-to give more in law to those who have
less in life.
But why is it the union membership is not growing? It is
getting less and less. That seems to be not just a
localized phenomenon in the Philippines. It is all over the
world. Union membership is gradually going down. Can
the promotion of social justice be carried out at the very
expense of what is in essence a commercial transaction?
Commercial transaction, parties are free to enter into
agreements. What is that principle? The principle of
autonomy. That is at the very heart of a transaction.
Contracts. What is the constitutional principle that
enshrines that? Non-impairment clause of contracts. No
law impairing the obligation of contracts shall be passed.
Since you have social justice, so many times contracts
are impaired. A is the employer, B is the employee. They
agree on a sum that will be the compensation of B for
rendering service to A. They agree. Then all of the
sudden, the government increases minimum wage. What
has happened? The obligation of contracts has been
impaired. The employee has to give more. Is the
employee doing more? No. Its just the employer that is
made to pay more. Is he now working more hours than
before? No. Why can it be done? It can be done in the
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From the Lectures and Hand-Outs of Father Agustin L. Nazareno
name of social justice. You can impair the obligation of
contracts. Indirect impairment of obligations of contracts.
The ***** is that change. But all of the sudden
government or congress passes social legislation. It
mandates that any employer must register its employees
for social security. That is when economist calls social
security as payroll tax. It is science of economics. This is
called a tax. It increases your obligations. Is that not an
impairment? If you entered into that contractual
relationship and at that time you only pay this much for
social security and now they have increase the
contribution. Again, obligations and contracts is impaired.
Why can it be done? Social justice. The employee is
helpless, poor, he needs all the assistance. And yet the
economists are saying when you do that it discourages
the employer from employing more. And the equivalent
effect is less and less expansion of business and in the
end, less people will be employed, less people will be
paid. Although the law intends to give more to those who
have less in life.
I know we are shifting from law to policy. But labor is
very closely related to policy.
The right not to join any union. If you take that seriously,
there should be no union security clause. Once you have
no union security clause, what do you have? You have
the right to work. Thats a policy that renders exclusive
bargaining representative no longer viable.
Which car companies are economically doing better?
Those that are unionized? Or those that are non-
unionized? As an economic entity, those that are
unionized are in deep trouble. Not a single one of those
that are non-unionized went to congress in the financial
crisis of 2008.
The third right, included in the right to self-organization,
the right to vote by 2/3 majority of its general
membership to cancel registration of its union in a
meeting duly called for the purpose. (Art. 247(239-A))
Do you need a ground to cancel registration of a union?
Must there be wrong doing? No. There is no need. Art
247 as amended by RA 9481 does not require any
ground. Only that the members must be informed of the
purpose of the meeting which is to vote for the
cancellation of the registration of the union. I still have
not seen an instance where this would occur because it is
still the officers who would call the meeting and after the
vote is carried out it is the officers again who must certify
and work it to the Bureau of Labor Relations that such a
meeting occurred and such a 2/3s qualified majority vote
was met and so therefore BLR is requested to cancel
registration of a union. Whats wrong with that? There is
no leader who wants to cancel the organization he is
leading. Its like saying I am a president of nothing. Its
like a right but with no teeth. Makes it difficult for the
2/3s to make their will carried out.
Once the union registration is cancelled, no more union
to represent them. It goes back to the original situation
of individual contracts of employment. No more collective
bargaining agreement. But you need 2/3s of the union.
Fourth, you have the right to file a petition for
cancellation of union registration and/or de-certification
of the union on grounds provided for by law. (Art.
246(239))
This one you need a ground because you are asking the
State to cancel your registration. Its not the union
membership that is moving to cancel it, youre asking the
state. The law has reduced the number of grounds for
cancellation of union to just 3. What are those grounds?
III Manresa 2014-2015
Misrepresentation or false statement or fraud in
connection with the adoption, ratification of the
constitution and by-laws or amendments to the
unions registration.
Misrepresentation or fraud in connection with
the minutes of ratification or in connection with
the election of officers, minutes of the election
of the officers, the list of voters, or failure to
submit these documents together with the list
When there has been a meeting of the general
membership of the union purposely called for
cancelling its registration and a vote has been
cast comprising 2/3s of the general
membership.
Now that the grounds have been reduced to 3, it is more
difficult to cancel the registration of a union than it is for
a corporation to lose its incorporation status because
there are many grounds for a corporation to lose its
status. The registration of a union just like the
registration of a corporation cannot be attacked
collaterally. You have to file a separate action to cancel
its registration.
July 10, 2014
Second Part
ADCJ
-5 MINUTES BREAK-
Alright, now I would like to point out to you Air Phil vs.
BLR 402 SCRA 243 [2005]. The SC used de-certification
here. It is not actually a decertification case. This is a
case for cancellation of registration. If you read the case,
the SC says the mere fact that a group of people within
a union membership voted twice in connection with the
adoption of the constitutional by-laws or its amendments
is not enough to decertify the union. This is a
cancellation. Not a decertificattion. You will later on
understand as we will come to a decertification which is
a form of certification of a union. That this certification of
the union occurs when the union is voted out in a
certification election. It is decertified as an exclusive
bargaining agent. Suffice it to say that this case, you
should understand on its merits is a cancellation for
registration not a decertification. The SC is in error when
it says that it is decertified. A union may be decertified
but it is still a union. Here, the union registration is
sought to be cancelled because it is a ground for
cancellation of registration. You read that case. Go over
it.
Alright, other actors that are involved in the right to self
organization:
1. Aliens
-what you must remember here is that he must be a non-
resident alien. If he is already a resident in the
Philippines, that means he has a permanent right to stay
here, he is not covered. Basically he is an alien.
-second, he must be of a nationality that reciprocally
grants non-resident Filipinos the same right. If we are in
his country of nationality and if we are not granted the
right to self organization in his own country, then he
cannot be granted the right to self organization.
How can he work here if he does not have a permanent
visa? Labor Standards will tell you, DOLE issues work
permits. By virtue of work permits issued by the DOLE,
then the Bureu of Immigation [BOI] grants you a
working visa. It is not the other way around. Remember
the Tim Cone Case Coach of San Miguel [storya2]. There
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is a science to sports. If you cannot provide for the
perfect answer to a particular strategy, you lose.
So, in that case of Tim Cone, the SC said that it is not the
BOI that grants authority to a non-resident to work here
in the Philippines. It must be the DOLE that grants
because there are conditions. You must prove that there
is no Filipino that can take his place. Then , if he is a
foreigner, he must train 2 understudies. That is
ballooning; that is hogwash. That law cannot be followed
that is why Tim Cone is still there coaching. Thats why
the association of coaches complained about Tim Cone.
Are we afraid of competition? You know all these Filipino
First policies is a refuge of the feeble. Everytime you
invoke nationality, right away you are feeble if not
feebleminded. The age of nationalism is dead. Compete
against the world! Nationalism has served to protect
weak Filipinos. [storya2]
Can aliens unionize? There used to be a provision
prohibiting them for engaging in any labor relations
activity. That was because of Martial Law, but it was
amended by RA 6715. During Marcos times there are so
many foreigners joining demonstrations of workers and
so they passed this law no foreigners can engage in any
labor relations activity including union organizing, joining
strikes or conserted activities. The punishment was
immediate deportation as soon as you have served your
prison sentence. That used to be the law but it was
amended by RA6715 effective March 21, 1989;
2. Employees of a cooperatives who are at the
same time members of the cooperatives.
The leading case is Cooperative Rural Bank of Davao City
Inc. vs. P.F. Calleja 165 SCRA 125 [1998]. Here, the SC
says, if you are a member at the same time that you are
an employee of that cooperative, you cannot forma union
because the highest body in a cooperative is the general
assembly.
The assembly of all cooperative members where there is
the principle of 1 member= 1vote regradless of your
number of shares . Very difficult to members of
cooperative to explain to them that in a corporation that
is not the case. The members of a NON-STOCK, NON-
PROFIT corporation of 1 vote=1 member unless the by-
laws provides otherwise. But if you are a STOCK AND
PROFIT corporation, if you are a stockholder, you have as
many votes as you have voting shares.
Padaghanay man na ug kwarta sa corporation. That is
why in a corporation, even if you are a stockholder, you
can be an employee of a corporation and you can join a
union vis--vis corporation.
However, in a cooperative if you are a member at the
same time an employee of the same, you cannot do that.
You cannot bargain with yourself. If all members of a
cooperative are also employees, and they form a union,
they will be bargaining with themselves.
What happens if the cooperative member resigns his
membership in the cooperative but does not resign as an
employee can he now join the union of the coopertive?
YES! Negros [NORECO] vs. Secretary. You can purposely
resign your cooperative membership. You ask the
cooperative to surrender your cash surrender value and
then you cease to become a member of a cooperative.
And then, you are now just an employee. You can now
join the union. You can do that. There is nothing wrong
with that even if you resign for the purpose of joining the
union
Remember, that is not true with a corporation. Let us say
you are the owner of 60% of shares of stock of a
corporation. You are sitting on the board of the
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corporation. Can you join the union? NO because you are
managerial employee. It is not because you are a
stockholder. You act for and on behalf of the employer
who is a juridical person. so, therefore you cannot join
not because you are a stockholder.
You do not sit on the board and you are 60% owner of
the outstanding capital stock. Unya ni-apply ka unya
nadawat ka. You are a passive member/ stockholder.
Lets say youa re hired as driver. Can you join the union
of the rank-and-file employees? Of course you can. Will
you not be bargaining with yourself? NO. you will be
bargaining with the corporation. Your personality is
separate and distinct from the personality of the
corporation. You do not sit in the governing body of the
corporation. So, there is no conflict of interest.
TAKE A LOOK AT THE DIFFERENCE of the corporation
and the cooperative ha. The inhibitions do not apply in
the same fashion.
3. Minors [PD1179]
Neither management nor a collective bargaining union
shall threaten working children to force them to join or
withdraw as member of a union. He has the right. Minors
cannot be prevented from joining. Suppose the 17 years
old can he be a member of a union? YES. Can he be
president or officer of a union? That is another story
because the president has set of duties that require him
to have full capacity to act with legal effect. He cannot do
it because he is a minor. So, he is not qualified to be an
officer of the union. But he can be collected payment, he
can be covered in a collective bargaining agreement, he
cannot be deprived of the benefits that the union obtains
by reason of collective bargaining.
4. Employees of contractors and
subcontractors
They can form a union vis--vis their employer and that
is with contractor. They cannot form a union vis--vis the
entity to which they are secondly*. Who is your
employer? Commando Security Agency Corp. Commando
has a contract with University of Mindanao. They provide
security. Between UM and Commando Security, who vis-
-vis whom can you form a union? Commando or UM?
Commando. What happens with Commando if a labor-
only contract. If Commando is a labor-only contract
contractor, then it is cancelled. Then there is one
employer left. Who is that? UM. That is the only time you
can form a union vis--vis the indirect employer because
your employer is a labor-only contract. So be sensitive to
that nuance. That is labor standards.
5. HOMEWORKERS
They are special workers. They receive raw materials
from their employer. They work to produce according to
the sample given to them. They turn over their produce
to the supplier of raw materials. Less the cost of the
materials, they are paid. Are they industrial workers?
Commercial workers? It looks like because they are
allowed to form a union.
That is different from househelp. The terminology now is
kasambahay. Another useless name! [yaw2]
6. SINGLE EMPLOYEES
Example, a doctor specialist of the retina of the eye and
his patients form a line and he has only one employee
the nurse receptionist. Can he form a union? Technically
speaking, there is no prohibition in the Labor Code
because the Labor Code does not put a minimum number
to form a union. There is no minimum. It just says when
you register, you must say 20% of the bargaining unit
are members of the union. I am everyone. I am 100%! I
am a committee of one! Thats what the implenting rules
sayto register as a union, you need 20% of those of a
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bargaining unit to support the application for registration. form because itinerant workers,
Now, if you are one, thats 100%. you cannot self-employed
bargain with a people, rural
Now, why does the law not require a minimum number non-ER. workers and
for the exercise of the right itself? Because if it did, then those without
it is discrimnatory to single employee workplaces. Tungod any definite
lang kay nag-inusara ka sa imong trabahuanan , dili ka employers
na makahimo ug exercise sa imong right to self
organization? That is discriminatory! You can still! How The use of the term labor organization [in the 2nd
do you exercise your right to self-organization? You go sentence of 252] is a clerical mistake made by congress.
contact a federation. You affiliate yourself directly to the Why do I say that?
federation. And then the federation can represent you for Art. 219 (g) "Labor organization" means any
collective bargaining with your employerthe Dr. of union or association of employees which exists
retina of the eye. in whole or in part:
o for the purpose of collective bargaining
I give you a problem: There is a general manager of Phil or
Carbon Export Corp. he has a sister and the sister has an o of dealing with employers concerning
only son who is spoiled. So spoiled that he has been to 5 terms and conditions of employment.
different schools in Davao City because he has always
been expelled. Can you please provide a work for your So how can you have collective bargaining if you do not
nephew? Give him some alternative. So, the general have an ER. So obviously the labor organization here in
manager brings in the nephew as a rank and file utility the last sentence of 252 is a mistake, that is workers
man. Now, there is a certification of election of rank and association. That is explained in Book V, Rule III and IV
file regular workers. The nephew is rank and file. The of the IRR: [NOTE: c.f. with book basig naay
union does not want to accept him because he is the amendments; see FORMATION distinction below]
nephew of the employer. Union refuses to accept him.
Assuming that he has become regular, he is a bona fide Labor Org Workers Assoc
rank and file, can he force the union to accept him? DO As to purpose Collective Mutual Aid and
YOUR RESEARCH! bargaining protection

July 16, 2014 Example of mutual and protection: Mortuary society. You
BIA make a contribution and anybody who dies during that
month gets that contribution. DO you think the members
*DAP stories and reprimanded by superior stories* there will be dying to get the contribution. We do not
know. But theyre not dying to get it, allegorically, no one
Unions is the generic term. is dying to get it. But you have to die to get it. Get it?
Labor organization is what is applicable to the
private sector. Labor Org Workers Assoc
EEs organization is applicable to the public As to formation 239 and 240 Book V, Rule IV
sector because of EO 180. and III, Sec 2 C
and D
Now there is another application for EEs and that is in the
workers association. Workers association and Labor In a labor organization: This [239] is not the most
Organization they are all in the private sector. What is common way to form a labor organization. Why?
the main difference? In the purpose:
Labor organization Art. 252. All persons "ART. 239. Requirements of Registration. - A
employed in commercial, industrial and federation, national union or industry or trade union
agricultural enterprises and in religious, center or an independent union shall acquire legal
charitable, medical, or educational institutions, personality and shall be entitled to the rights and
whether operating for profit or not, shall have privileges granted by law to legitimate labor organizations
the right to self-organization and to form, join, upon issuance of the certificate of registration based on
or assist labor organizations of their own the following requirements:
choosing for purposes of collective (a) Fifty pesos (P50.00) registration fee;
bargaining a. I dont think its P50 now.
Workers Association - Ambulant, intermittent (b) The names of its officers, their addresses, the
and itinerant workers, self-employed people, principal address of the labor organization, the
rural workers and those without any definite minutes of the organizational meetings and the
employers may form labor organizations for list of the workers who participated in such
their mutual aid and protection. meetings;
a. So its a very detailed tally of the
So if you are to distinguish them, the COMMON meeting.
DENOMINATOR is that they are BOTH MADE UP OF (c) In case the applicant is an independent union,
WORKERS the names of all its members comprising at least
twenty percent (20%) of all the employees in
The differences: the bargaining unit where it seeks to operate;
a. So with this 20% requirement
Labor Org Workers Assoc theoretically a single workplace can
As to existence There must be There is no need have a MAXIMUM of 5 labor
of ER-EE ER-RR for the existence organizations [LO]. Why? Because each
relationship relationship of ER-EE of them can produce the minimum
before you can relationship. The requirement of the 20% of the
form a labor org. 2nd sentence members. If there are 100 workers
If there is none, says: Ambulant, member there, the maximum number
then you cannot intermittent and of LOs is 5, if they get all the EEs to
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 Lectures on Labor Relations
From the Lectures and Hand-Outs of Father Agustin L. Nazareno
join unions. Each of them has 20, 5 can
be registered, assuming there is an
even division. So the law indirectly
gives a maximum limit on the number
of unions in a workplace. That is why,
because of the 20% requirement
before your LO can be registered. But
there is no limit, max or min, to
membership [pasabot ata ni father is
NUMBER of members]. Required, 20%.
Suppose in the workplace there is only
1 worker, secretary. 100% of the
workforce membership. Do you comply
with the requirement? YES! Can you be
a union? Why not?
(d) If the applicant union has been in existence for
one or more years, copies of its annual financial
reports; and
a. The one writing this is really not
familiar with the basics of corporation
law. A union, after it is registered,
receives a personality which gives it
juridical existence. But then it says
here, if the applicant union has been in
existence mao man gani nagapply
kay wala pa siya nagexist! The author
of this law has no accurate
understanding of basics of personality,
existence that is juridical, existence in
contemplation of law. What is the
meaning? If the applicant union has
been in OPERATION for one or more
years WITHOUT LEGAL EXISTENCE,
then it must present its financial
reports. If the union has already been
function (mangolekta sila ug union
dues) naa na silay officers, budget, etc.
they must render a report. It does not
stand to reason. IF IT IS ALREADY IN
EXISTENCE AS A UNION, WHY IS IT
APPLYING FOR REGISTRATION? It only
means it has already been in operation,
not as a juridical personality but as an
organization.
b. Marriage, kung nagpuyo puyo namo,
naa na moy anak, de facto. Naa manay
5 years. What do you do? Do you still
require marriage license? Dili na.
Irehistro nalang na ninyo nang
marriage certificate pagkahuman sa
marriage ceremony. You have been
operating as a marriage, when in fact
there was no marriage.
(e) Four copies of the constitution and by-laws of
the applicant union, minutes of its adoption or
ratification, and the list of the members who
participated in it."
a. This is the more difficult thing. This is
how to register a union. Kinsa man diay
nang magbuhat ug union? Kanang taga
sasa na magload ug sako sa barko.
Tanawa nang listahan nila sa payroll,
kinsa mana? Enting, Upaw, Dodong,
wala man gani apilyedo na ilahang
payroll. No family name. Unsa may
buhat sa checker? *checker stories*
Unsaon pagkatuman ana sa atong
industrial democracy? *tukog sa silhig
and book analogy*
THAT IS WHY, ASIDE FROM THIS [239] YOU HAVE 240.
This is the most common way to form a union. How?
III Manresa 2014-2015
ART. 240. Chartering and Creation of a Local
Chapter. - A duly registered federation or national union
may directly create a local chapter by issuing a charter
certificate indicating the establishment of the local
chapter.
Labor organization, already registered. He issues
a charter certificate to that work place. Issuhan
ka ana, wala na, union na ka!
The chapter shall acquire legal personality only for
purposes of filing a petition for certification
election from the date it was issued a charter
certificate.
That is provisional personality. For what? Filing a
petition for certification election. Makatindog na
ka, pili-a mi! Union mi!
Now, can it go to court and file a suit for and in
behalf of its members? No, it cannot. Its
personality is only for the purpose of filing a
petition for certification election.
When does it become with the full rights and privileges of
a labor organization that it legitimiate?
The chapter shall be entitled to all other rights and
privileges of a legitimate labor organization only upon
the submission of the following documents in
addition to its charter certificate:
(a) The names of the chapter's officers, their
addresses, and the principal office of the
chapter; and
(b) The chapter's constitution and by-laws:
Provided, That where the chapter's constitution
and by-laws are the same as that of the
federation or the national union, this fact shall
be indicated accordingly.
So ibutang ra na nimo, We are local 123 of
FFW, our constitution and by-laws are the same
as our federation HUMAN!
The additional supporting requirements shall be certified
under oath by the secretary or treasurer of the chapter
and attested by its president."
Why is this made easy?
Precisely because so many of the working class
do not have enough educational background to
be able to comply with the original way of
forming the union (239). It was only the
amendment from RA 9481 that chartering was
recognized in the red letter of the law.
Republic Act No. 9481
AN ACT STRENGTHENING THE WORKERS'
CONSTITUTIONAL RIGHT TO SELF-
ORGANIZATION, AMENDING FOR THE PURPOSE
PRESIDENTIAL DECREE NO. 442, AS AMENDED,
OTHERWISE KNOWN AS THE LABOR CODE OF THE
PHILIPPINES
Lapsed into law on MAY 25, 2007
Effective June 14, 2007
Chartering used to be part of the implementing
rules, but because there was so much
controversy, they made it part of the law so that
there can be no more controversy.
Now, there is this 2011 case:
SAMAHANG MANGGAGAWA SA CHARTER
CHEMICAL SOLIDARITY OF UNIONS IN THE
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 Lectures on Labor Relations
From the Lectures and Hand-Outs of Father Agustin L. Nazareno
PHILIPPINES FOR EMPOWERMENT AND REFORMS
(SMCC-SUPER), ZACARRIAS JERRY VICTORIO
Union President, Petitioner, vs. CHARTER
CHEMICAL AND COATING CORPORATION,
Respondent.
G.R. No. 169717; March 16, 2011
Penned by: DEL CASTILLO
Once again, the ER here seeks to delay his registration.
Ang charter, to prove that they are a Legitimate LO,
because only a LLO can file a petition for certification
election, they produce their charter certificate. It was
challenged, ER said thats just a piece of paper, gihimo
himo ra na ninyo. It should have been issued by the
president of the federation.
Is that a valid objection?
Held: No. A union certificate need not be executed under
oath.
Facts: In the main, the CA ruled that petitioner union failed to
comply with the requisite documents for registration under
Article 235 of the Labor Code and its implementing rules. It
agreed with the Med-Arbiter that the Charter Certificate, Sama-
samang Pahayag ng Pagsapi at Authorization, and Listahan ng
mga Dumalo sa Pangkalahatang Pulong at mga Sumang-ayon
at Nagratipika sa Saligang Batas were not executed under oath.
Thus, petitioner union cannot be accorded the status of a
legitimate labor organization.
SC Ruling: We disagree.
The then prevailing Section 1, Rule VI of the
Implementing Rules of Book V, as amended by D.O. No. 9,
series of 1997, provides:
Section 1. Chartering and creation
of a local chapter A duly registered
federation or national union may directly
create a local/chapter by submitting to the
Regional Office or to the Bureau two (2)
copies of the following:
(a) A charter certificate issued by
the federation or national union indicating
the creation or establishment of the
local/chapter;
(b) The names of the
local/chapters officers, their addresses, and
the principal office of the local/chapter; and
(c) The local/chapters
constitution and by-laws provided that
where the local/chapters constitution and
by-laws [are] the same as [those] of the
federation or national union, this fact shall
be indicated accordingly.
All the foregoing supporting
requirements shall be certified under oath
by the Secretary or the Treasurer of the
local/chapter and attested to by its
President.
As readily seen, the Sama-samang Pahayag ng Pagsapi at
Authorization and Listahan ng mga Dumalo sa Pangkalahatang
Pulong at mga Sumang-ayon at Nagratipika sa Saligang Batas
are not among the documents that need to be submitted to the
Regional Office or Bureau of Labor Relations in order to register
a labor organization.
III Manresa 2014-2015
As to the charter certificate, the above-quoted rule indicates
that it should be executed under oath. Petitioner union
concedes and the records confirm that its charter certificate was
not executed under oath.
However, in San Miguel Corporation (Mandaue Packaging
Products Plants) v. Mandaue Packing Products Plants-San
Miguel Corporation Monthlies Rank-and-File Union-FFW (MPPP-
SMPP-SMAMRFU-FFW), which was decided under the auspices
of D.O. No. 9, Series of 1997, we ruled
In San Miguel Foods-Cebu B-Meg
Feed Plant v. Hon. Laguesma, 331 Phil. 356
(1996), the Court ruled that it was not
necessary for the charter certificate to be
certified and attested by the local/chapter
officers. Id. While this ruling was based
on the interpretation of the previous
Implementing Rules provisions which
were supplanted by the 1997
amendments, we believe that the same
doctrine obtains in this case.
Considering that the charter certificate is
prepared and issued by the national union
and not the local/chapter, it does not
make sense to have the
local/chapters officers x x x certify or
attest to a document which they had
no hand in the preparation of.
(Emphasis supplied)
In accordance with this ruling, petitioner unions charter
certificate need not be executed under oath.
Consequently, it validly acquired the status of a legitimate labor
organization upon submission of:
(1) its charter certificate,
(2) the names of its officers, their addresses,
and its principal office, and
(3) its constitution and by-laws
The last two requirements having been executed under oath by
the proper union officials as borne out by the records.
Now, you are now a chartered local, you have received a
charter certificate from the federation. Supposed you
have obtained a fundamental disagreement with the
federation, and you renounce your chartership with the
federation. Bulag ka! What happens to you? That is
answered by:
EDEN GLADYS ABARIA, et al. vs. NATIONAL
LABOR RELATIONS COMMISSION, METRO CEBU
COMMUNITY HOSPITAL, INC., ITS BOARD OF
TRUSTEES, REV. GREGORIO IYOY, SHIELA BUOT,
REV. LORENZO GENOTIVA, RUBEN CARABAN,
RUBEN ESTOYE, LILIA SAURO, REV. ELIZER
BERTOLDO, RIZALINA VILLAGANTE, DRA. LUCIA
FLORENDO, CONCEPCION VILLEGAS, REV. OLIVER
CANEN, DRA. CYD RAGAS, REV. MIKE CAMBA,
AVEDNIGO VALIENTE, RIZALINO TAGANAS,
CIRIACO PONGASI, ISIAS WAGAS, REV. ESTER
GELOAGAN, REV. LEON MANIWAN, CRESENTE
BAOAS, WINEFREDA BARLOSO, REV. RUEL
MARIGA AND THE UNITED CHURCH OF CHRIST IN
THE PHILIPPINES, REV. HILARIO GOMEZ, REV.
ELMER BOLOCON, THE NATIONAL FEDERATION OF
LABOR AND ARMAND ALFORQUE
G.R. No. 154113; December 7, 2011
VILLARAMA, JR.
To prove majority support of the employees, NAMA-
MCCH-NFL presented the CBA proposal allegedly signed
by 153 union members. However, the petition signed by
said members showed that the signatories endorsed the
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From the Lectures and Hand-Outs of Father Agustin L. Nazareno

proposed terms and conditions without stating that they
were likewise voting for or designating the NAMA-MCCH-
NFL as their exclusive bargaining representative. In any
case, NAMA-MCCH-NFL at the time of submission of said
proposals was not a duly registered labor organization,
hence it cannot legally represent MCCHIs rank-and-file
employees for purposes of collective bargaining. Hence,
even assuming that NAMA-MCCH-NFL had validly
disaffiliated from its mother union, NFL, it still did not
possess the legal personality to enter into CBA
negotiations.
musuwat? *canteen vale stories* Mutext pa ka, pero di
ka musuwat. You are no longer functionally literate. How
can you take the minutes of a meeting? *not able to
write stories, ihaw baboy, etc* So federation workers
have organizers.
In workers association: [igo ra ni gimention ni Father
]
RULE III
REGISTRATION OF LABOR ORGANIZATIONS

A local union which is not independently
registered cannot, upon disaffiliation from the
federation, exercise the rights and privileges
granted by law to legitimate labor organizations;
thus, it cannot file a petition for certification
election.
Section 1. Where to file. - Applications for registration of
independent labor unions, chartered locals, workers'
associations shall be filed with the Regional Office where
the applicant principally operates. It shall be processed
by the Labor Relations Division at the Regional Office in
accordance with Sections 2-A, 2-C, and 2-E of this Rule.

Besides, the NFL as the mother union has the right to
investigate members of its local chapter under the
federations Constitution and By-Laws, and if found guilty
to expel such members.[42] MCCHI therefore cannot be
faulted for deferring action on the CBA proposal
submitted by NAMA-MCCH-NFL in view of the union
leaderships conflict with the national federation. We
have held that the issue of disaffiliation is an intra-union
dispute[43] which must be resolved in a different forum
in an action at the instance of either or both the
federation and the local union or a rival labor
organization, not the employer
Not being a legitimate labor organization nor the certified
exclusive bargaining representative of MCCHIs rank-and-
file employees, NAMA-MCCH-NFL cannot demand from
MCCHI the right to bargain collectively in their behalf.[45]
Hence, MCCHIs refusal to bargain then with NAMA-
MCCH-NFL cannot be considered an unfair labor practice
to justify the staging of the strike.
Applications for registration of federations, national
unions or workers' associations operating in more than
one region shall be filed with the Bureau or the Regional
Offices, but shall be processed by the Bureau in
accordance with Sections 2-B and 2-D of this Rule.
Section 2. Requirements for application. - A. The
application for registration of an independent labor union
shall be accompanied by the following documents:
1) the name of the applicant labor union, its
principal address, the name of its officers and their
respective addresses, approximate number of employees
in the bargaining unit where it seeks to operate, with a
statement that it is not reported as a chartered local of
any federation or national union;
2) the minutes of the organizational meeting(s)
and the list of employees who participated in the said
meeting(s);

You have no personality as a legitimate labor 3) the name of all its members comprising at least
organization. That is why you must distinguish between 20% of the employees in the bargaining unit;
what is an affiliate and what is a simple local:
4) the annual financial reports if the applicant has
Affiliate Chartered Local been in existence for one or more years, unless it has not
Book V. Rule I. Sec. 1. (a) Book V. Rule I. Sec. 1. (i) collected any amount from the members, in which case a
statement to this effect shall be included in the
1. refers to an independent refers to a labor application;
union affiliated with a organization in the private
federation, national union sector operating at the 5) the applicant's constitution and by-laws, minutes
or enterprise level that of its adoption or ratification, and the list of the members
acquired legal personality who participated in it. The list of ratifying members shall
2. a chartered local which through the issuance of be dispensed with where the constitution and by-laws
was subsequently granted a charter certificate by was ratified or adopted during the organizational
independent registration a duly registered meeting. In such a case, the factual circumstances of the
but did not disaffiliate from federation or national ratification shall be recorded in the minutes of the
its federation, reported to union, and reported to the organizational meeting(s).
the Regional Office and the Regional Office in
Bureau in accordance with accordance with Rule III, B. The application for registration of federations and
Rule III, Sections 6 and 7 Section 2-E of these Rules. national unions shall be accompanied by the following
of these Rules. [That means by documents:
Chartering]
If you disaffiliate from the If you disaffiliate, you 1) a statement indicating the name of the applicant
federation, you can still act cannot function as a union. labor union, its principal address, the name of its officers
as a union because you Why? Because your and their respective addresses;
have independent registration, personality, is
registration. tied with the federation. 2) the minutes of the organizational meeting(s)
and the list of employees who participated in the said
In the actual practice, the federation, the workers there meeting(s);
cannot do the ____ work. Record meetings, pagsulat sa
minutes sa meetings. Are they [workers] the ones there? 3) the annual financial reports if the applicant
No. Nakakatun na sila ug sulat sa didto, didto, but they union has been in existence for one or more years, unless
are not functionally literate. Day in and day out, imong it has not collected any amount from the members, in
trabaho magputol ug dahon sa saging. Kanusa ra man ka
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 Lectures on Labor Relations
From the Lectures and Hand-Outs of Father Agustin L. Nazareno
which case a statement to this effect shall be included in
the application;
4) the applicant union's constitution and by-laws,
minutes of its adoption or ratification, and the list of the
members who participated in it. The list of ratifying
members shall be dispensed with where the constitution
and by-laws was ratified or adopted during the
organizational meeting(s). In such a case, the factual
circumstances of the ratification shall be recorded in the
minutes of the organizational meeting(s);
5) the resolution of affiliation of at least ten (10)
legitimate labor organizations, whether independent
unions or chartered locals, each of which must be a duly
certified or recognized bargaining agent in the
establishment where it seeks to operate; and
6) the name and addresses of the companies
where the affiliates operate and the list of all the
members in each company involved.
Labor organizations operating within an identified
industry may also apply for registration as a federation or
national union within the specified industry by submitting
to the Bureau the same set of documents.
C. The application for registration of a workers'
association shall be accompanied by the following
documents:
1) the name of the applicant association, its
principal address, the name of its officers and their
respective addresses;
2) the minutes of the organizational meeting(s)
and the list of members who participated therein;
3) the financial reports of the applicant association
if it has been in existence for one or more years, unless it
has not collected any amount from the members, in
which case a statement to this effect shall be included in
the application;
4) the applicant's constitution and by-laws to which
must be attached the names of ratifying members, the
minutes of adoption or ratification of the constitution and
by-laws and the date when ratification was made, unless
ratification was done in the organizational meeting(s), in
which case such fact shall be reflected in the minutes of
the organizational meeting(s).
D. Application for registration of a workers'
association operating in more than one region shall be
accompanied, in addition to the requirements in the
preceding subsection, by a resolution of membership of
each member association, duly approved by its board of
directors.
E. The report of creation of a chartered local shall
be accompanied by a charter certificate issued by the
federation or national union indicating the creation or
establishment of the chartered local.
Section 3. Notice of change of name of labor
organizations; Where to file. - The notice for change of
name of a registered labor organization shall be filed with
the Bureau or the Regional Office where the concerned
labor organization's certificate of registration or certificate
of creation of a chartered local was issued.
Section 4. Requirements for notice of change of name. -
The notice for change of name of a labor organization
shall be accompanied by the following documents:
III Manresa 2014-2015
(a) proof of approval or ratification of change of
name; and
(b) the amended constitution and by-laws.
Section 5. Certificate of Registration/Certificate of
Creation of Chartered Local for change of name. - The
certificate of registration and the certificate of creation of
a chartered local issued to the labor organization for
change of name shall bear the same registration number
as the original certificate issued in its favor and shall
indicate the following: (a) the new name of the labor
organization; (b) its former name; (c) its office or
business address; and (d) the date when the labor
organization acquired legitimate personality as stated in
its original certificate of registration/certificate of creation
of chartered local.
Section 6. Report of Affiliation with federations or
national unions; Where to file. - The report of affiliation
of an independently registered labor union with a
federation or national union shall be filed with the
Regional Office that issued its certificate of registration.
Section 7. Requirements of affiliation. - The report of
affiliation of independently registered labor unions with a
federation or national union shall be accompanied by the
following documents:
(a) resolution of the labor union's board of directors
approving the affiliation;
(b) minutes of the general membership meeting
approving the affiliation;
(c) the total number of members comprising the
labor union and the names of members who approved
the affiliation;
(d) the certificate of affiliation issued by the
federation in favor of the independently registered labor
union; and
(e) written notice to the employer concerned if the
affiliating union is the incumbent bargaining agent.
Section 8. Notice of Merger/Consolidation of labor
organizations; Where to file. - Notice of merger or
consolidation of independent labor unions, chartered
locals and workers' associations shall be filed with and
recorded by the Regional Office that issued the certificate
of registration/certificate of creation of chartered local of
either the merging or consolidating labor organization.
Notice of merger or consolidation of federations or
national unions shall be filed with and recorded by the
Bureau.
Section 9. Requirements of notice of merger. - The notice
of merger of labor organizations shall be accompanied by
the following documents:
(a) the minutes of merger convention or general
membership meeting(s) of all the merging labor
organizations, with the list of their respective members
who approved the same; and
(b) the amended constitution and by-laws and minutes of
its ratification, unless ratification transpired in the merger
convention, which fact shall be indicated accordingly.
Section 10. Certificate of Registration. - The certificate of
registration issued to merged labor organizations shall
bear the registration number of one of the merging labor
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organizations as agreed upon by the parties to the
merger.
The certificate of registration shall indicate the following:
(a) the new name of the merged labor organization; (b)
the fact that it is a merger of two or more labor
organizations; (c) the name of the labor organizations
that were merged; (d) its office or business address; and
(e) the date when each of the merging labor
organizations acquired legitimate personality as stated in
their respective original certificate of registration.
Section 11. Requirements of notice of consolidation. -
The notice of consolidation of labor organizations shall be
accompanied by the following documents:
(a) the minutes of consolidation convention of all
the consolidating labor organizations, with the list of their
respective members who approved the same; and
(b) the amended constitution and by-laws, minutes
of its ratification transpired in the consolidation
convention or in the same general membership
meeting(s), which fact shall be indicated accordingly.
Section 12. Certificate of Registration. - The certificate of
registration issued to a consolidated labor organization
shall bear the registration number of one of the
consolidating labor organizations as agreed upon by the
parties to the consolidation.
The certificate of registration shall indicate the following
(a) the new name of the consolidated labor organization;
(b) the fact that it is a consolidation of two or more labor
organizations; (c) the name of the labor organizations
that were consolidated; (d) its office or business address;
and (e) the date when each of the consolidating labor
organizations acquired legitimate personality as stated in
their respective original certificates of registration.
RULE IV
PROVISIONS COMMON TO THE REGISTRATION OF
LABOR ORGANIZATIONS AND WORKERS
ASSOCIATION
Section 1. Attestation requirements. - The application for
registration of labor unions and workers' associations,
notice for change of name, merger, consolidation and
affiliation including all the accompanying documents,
shall be certified under oath by its Secretary or Treasurer,
as the case may be, and attested to by its President.
Section 2. Payment of registration fee. - A labor union
and workers' association shall be issued a certificate of
registration upon payment of the prescribed registration
fee.
Section 3. Accompanying documents. - One (1) original
copy and two (2) duplicate copies of all documents
accompanying the application or notice shall be
submitted to the Regional Office or the Bureau.
Section 4. Action on the application/notice. - The
Regional Office or the Bureau, as the case may be, shall
act on all applications for registration or notice of change
of name, affiliation, merger and consolidation within ten
(10) days from receipt either by: (a) approving the
application and issuing the certificate of
registration/acknowledging the notice/report; or (b)
denying the application/notice for failure of the applicant
to comply with the requirements for registration/notice.
Section 5. Denial of Application/Return of Notice. - Where
the documents supporting the application for
III Manresa 2014-2015
registration/notice of change of name, affiliation, merger
and consolidation are incomplete or do not contain the
required certification and attestation, the Regional Office
or the Bureau shall, within five (5) days from receipt of
the application/notice, notify the applicant/labor
organization concerned in writing of the necessary
requirements and complete the same within thirty (30)
days from receipt of notice. Where the applicant/labor
organization concerned fails to complete the
requirements within the time prescribed, the application
for registration shall be denied, or the notice of change of
name, affiliation, merger and consolidation returned,
without prejudice to filing a new application or notice.
Section 6. Form of Denial of Application/Return of Notice;
Appeal. - The notice of the Regional Office or the Bureau
denying the application for registration/returning the
notice of change of name, affiliation, merger or
consolidation shall be in writing stating in clear terms the
reasons for the denial or return. The denial may be
appealed to the Bureau if denial is made by the Regional
Office or to the Secretary if denial is made by the Bureau,
within ten (10) days from receipt of such notice, on the
ground of grave abuse of discretion or violation of these
Rules.
Section 7. Procedure on appeal. - The memorandum of
appeal shall be filed with the Regional Office or the
Bureau that issued the denial/return of notice. The
memorandum of appeal together with the complete
records of the application for registration/notice of
change of name, affiliation, merger or consolidation, shall
be transmitted by the Regional Office to the Bureau or by
the Bureau to the Office of the Secretary, within twenty-
four (24) hours from receipt of the memorandum of
appeal.
The Bureau or the Office of the Secretary shall decide the
appeal within twenty (20) days from receipt of the
records of the case.
Section 8. Effect of registration. - The labor union or
workers' association shall be deemed registered and
vested with legal personality on the date of issuance of
its certificate of registration or certificate of creation of
chartered local.
Such legal personality may be questioned only through
an independent petition for cancellation of union
registration in accordance with Rule XIV of these Rules,
and not by way of collateral attack in petition for
certification election proceedings under Rule VIII.
Section 9. Effect of change of name. - The change of
name of a labor organization shall not affect its legal
personality. All the rights and obligations of a labor
organization under its old name shall continue to be
exercised by the labor organization under its new name.
Section 10. Effect of merger or consolidation. - Where
there is a merger of labor organizations, the legal
existence of the absorbed labor organization(s) ceases,
while the legal existence of the absorbing labor
organization subsists. All the rights, interests and
obligations of the absorbed labor organizations are
transferred to the absorbing organization.
Where there is consolidation, the legal existence of the
consolidating labor organizations shall cease and a new
labor organization is created. The newly created labor
organization shall acquire all the rights, interests and
obligations of the consolidating labor organizations.
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 Lectures on Labor Relations
From the Lectures and Hand-Outs of Father Agustin L. Nazareno
This was not mentioned by father, pero naa ni
sa iyahang outline:
Labor Org Workers Assoc
As to petition for Can file Cannot file
certification
election
July 17, 2014
First Part
Classification of unions. Private sector you have labor
organizations and workers association. Public sector you
have employees organization. In the private sector you
have the classification based on the fullness of the right
to self organization. You begin with labor organization. If
you are a labor organization you begin with the purpose
of collective bargaining. Thats what makes you a labor
organization you register with the department of labor
bureau of labor relations after registration when you
receive your registration certificate, you become a
legitimate labor organization. Before that are you
illegitimate? Nooooooo! You are favored. That word
legitimate is as you can see those who formed this code
have a Civil Law background. There is no such thing in
the United States. In the Labor Relations Act of the
United States it is a registered union or an unregistered
union. There is no such thing as legitimate and
illegitimate. Kung mu-ingon kag legitimate illegitimate
ang opposite ana diba? Parehas na sa binuang na Legal
Wife. Naa ba diay nga illegal na wife? Propagating
ignorance in the Philippines. Mao na atong media.
Hundred percent Filipino. Mao na. wife ka you are
legitimate. Legal ka. Wife ka. Di gani ka legal. Unsa man
ka? KEYBET. Paramour. Mistress. Mao nay title ana.
Ngano man nang na legal wife man na? kasi sugod sugod
na sa sinultihan nato. Asawa asawa. Wife wife. Mao na. I
hate the Filipino language. It has done nothing but
retrogress the Philippines. Mao na. you dont have to
learn it. Legitimate labor organization; there is no
illegitimate. It is a tragedy of Filipino categorization. Once
you are legitimate, you can file a petition for certification
election. How many ways do you become a legitimate
labor organization? Articles 239 and 240. Which is the
easiest? 240. What is the drawback? What is the
disadvantage of 240? If you disaffiliate, you cease to
become a union. Which means that you are at the mercy
of the federation. You eat from the hand of the
federation. And yet what is the relationship between the
local and the federation? According to the Supreme
Court- the local is the principal, the federation is the
agent. And yet when the local separates, the local ceases
to exist and the federation continues to exist. Stupid law.
If it is favor of the workers, the registration should not be
lost. It. They should have put a provision there that puts
and end to locals being at the mercy of the federation.
But then personality does not depend on the federation
because the Supreme Court said time and again-
between a local and a federation, the federation is the
agent. Is the federation the agent of the workers?
Nooooo. The federation is the agent of the local. Who is
the agent of the workers in the bargaining unit? The
labor organization. It is the agent. It becomes the
exclusive bargaining agent if it is elected by the
bargaining unit as their representative in collective
bargaining. That is the fullness of representative status in
collective bargaining. You begin with labor organization,
legitimate labor organization, exclusive bargaining agent.
I would like to point out to you- exclusive bargaining
agent that is just one name, that is in Article 243 (a)-
collective bargaining agent. Book 1, section 1 there is
exclusive bargaining representative. Unsa man na? laing
tao na? mao gihapon nang sigbina na. bargaining
representative? Ahhh. This one. Bargaining
III Manresa 2014-2015
representative. This can mean two things. This can mean
the labor organization that is representing you in
collective bargaining and it can also mean the actual
warm body. The natural person representing the union in
collective bargaining during the collective bargaining
negotiations. Why? Take a look at the definition at article
219.
Article 219 (j). Bargaining representative means a
legitimate labor organization or any officer or agent of
such organization whether or not employed by the
employer.
That is wrong! The definition is wrong. Theres a clerical
mistake there. legitimate labor organization whether or
not employed by the employer. How can you employ a
labor organization? Even in the correct version which is
the long version, it is still wrong. Because the bargaining
representative is not just a legitimate labor organization.
What is it? It is already an exclusive bargaining agent. An
exclusive bargaining agent has been chosen. It is
certified by the Department of Labor. Nobody can take its
place. Not even the principals, not even the employees
can do away with them. The bargaining representative
which is not an organization seeks to bargain and he can
be an employee; whether he has an employer employee
relationship with whom he bargains or he may not be an
employee; he may be a lawyer. He is representing the
representative. Why is he representing the
representative? Because the representative is a juridical
person. It has no mouth, it has no hands, it has no feet.
It exists in the pure contemplation of the law just like a
corporation. Thats a union. It has a personality separate
and distinct from the personality of its members. But
because it is that abstract, it needs someone to act for it.
So be sure you know the distinction.
Why is an exclusive bargaining agent not allowed to be a
person. Have you ever thought of that? Why? Think
about it. Later on. I will ask you. Ngano man hinoon na
pili-on na representative sa mga mamumuo dili man
tawo- na maka pirma, na maka sulti. Its a juridical
person. Why? Nanihanglan hinoon ug lain nasad na tao.
Because it has no mouth. It has no hands.
There is a problem. There is a tension. How do you
become an exclusive bargaining agent? The labor Code
indirectly allows recognition. Without the benefit of an
election, there is a process allowed by the implementing
rules that the union and management can go to the
Bureau of Labor and register themselves after they have
entered into bargaining and the Department of Labor
makes an investigation and concludes that the collect
bargaining agreement signed is certified as governing
between the parties and the one that signed it for the
workers is the exclusive bargaining agent without the
benefit of an election. And yet the Supreme Court, time
and again, frowns upon direct recognition; direct
certification. What is your proof for that? As late as 2006
Mavicalon Corporation vs. Brion 482 SCRA 87. The
Supreme Court emphatically says- For a union to become
an exclusive bargaining representative, of a particular
establishment, it must emerge as winner in a certification
election. The Supreme Court is biased for certification
election. The Department of Labor is biased for direct
certification, voluntary recognition part of the employer
and registering that recognition with the Department of
Labor as good as election. Understand where they are
coming from. The Department of Labor cannot possibly
attend to all workplaces that want an election. Gamay
man na silag budget. Gamay lang man na silag mga tao.
Pila ba kabuok na certification election officers? LIMA ka
buok! Nay mag certification election sa Picop. Naay mag
certification election sa Gensan. The Department of Labor
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 Lectures on Labor Relations
From the Lectures and Hand-Outs of Father Agustin L. Nazareno
has to supervise the election. So they are adapting the
rule from the United States of Direct Certification. But our
Supreme Court by virtue of an examination of the right to
self-organization has also including the right of
association. The Supreme Court defines that part of the
content of the right to self-organization is not only to
choose your union but also to choose not to be a union.
How is that expressed? Only in an election. That is why
the Supreme Court. Its mandatory for the Supreme
Court- the moment there is one union that says he is the
representative there must be an election. Why? The other
choice is no union and it can happen that even if there is
one union with more than 20% of the workers signing as
members of that union. Mapildi na gihapon na sa
election. We will see more of that when we come to
certification election. But the process from legitimate
labor organization to exclusive bargaining agent that is
where crucial legal issues arise. That is where it arises.
Because the exclusive bargaining agent is very powerful.
The Supreme Court has said- membership in the union is
largely determined by the union. The union determines
what are the qualifications, what are the requirements,
what are the conditions, how much is going to be paid
and there should be no body or no authority that should
restrain the union in the determination of the
qualifications of its members. That what the SC says.
Because that what is described as industrial democracy.
Beginning of Book V, article 218 used to be 211-
Declaration of Policy of labor relations:
(b) To promote free trade unionism as an instrument for
the enhancement of democracy and the promotion of
social justice and development.
That is industrial democracy. Free trade unionism is
essential to the enhancement of democracy. Victoriano
vs. Elizalde Roadworkers Union- Supreme Court says
there are three possible sources of oppression of the
employee: 1. It can come from the employer and the
employers administration, 2. It can come from
government because government is powerful and, 3. It
can come from the union itself. It can come from the
union itself which according to Justice Enrique Fernando
then, before he became Chief Justice, it can come from
the union even if the union is the so called haven of
refuge of the lowly employee or worker. Basahi si justice
Fernando. Malibog na ka sa inenglish ni niya. How do you
translate haven of refuge? What is a haven? A haven in
an inlet where ships go in usually thats where harbors
are located because it is not an open sea. What is a
refuge? The same pareho. Adto gihapon ka mudagan
mutago. Waste for words but sometimes in literature
there is license to waste words. In literature, that is what
Justice Fernando is trying to imitate. He was trying to
imitate Shakespeare and Julius Caesar.
How can a union be a source of oppression to the
worker? The illustrative story is Salonga vs. CIR. Salonga
was a former president of the union of San Miguel
Corporation. He has since been a union member and he
kept criticizing the incumbent officers until the incumbent
officers said, Wa naman kaha ka makagusto aning union
kay dautan pareha nimu, may pag mupahawa nalang ka
sa union. Ingon si Salonga, Oo bitaw, wala man ko nag
kinahanglan kaninyo, you do not at all help me. I will
resign from the union. So he wrote a letter of
resignation and hand it over to the officers of the union.
After he did that, the personnel manager of SMC called
him and said, Dont you know there is a union security
agreement in the CBA. What is a union security
agreement? It is a proviso in the CBA that requires you to
be a member of the union and continue to be a member
of the union and if you are mad, if you cease to be
become a member, you resign from the union, youre
III Manresa 2014-2015
expelled from the union, the union can ask management
to terminate you. Thats the proviso in the CBA agreed
upon between the management and the union. And so
Salonga said, is that so? I forgot. So he went back to
the union and said, Im getting back my letter of
resignation. The officers said, Too bad. Youre too late.
Here is our acceptance of your resignation. So after he
received that, the union wrote management.
Management acted on the letter of the union asking him
to be terminated following the union security clause. So
he was terminated. He filed an illegal dismissal case. The
defense of the union and San Miguel is. First, San Miguel
says, Nisunod lang mi sa CBA. We are in good faith.
The unions defense, He asked to resign. Nalipay mi kay
sabaan mani kaayu. Are we at fault that there is no more
troublemaker? We accepted his resignation. Is that
correct? The SC says no that is not correct. Why? You
might have been correct up to that point accepting his
resignation. But when he sought to withdraw his letter of
resignation that was equivalent to an application to
become a member again of the union. Is the union free
to determine its criteria for accepting members? SC says
yes the union is free. That is the general rule. But there
is an exception. When a union signs a union security
agreement with management, it loses part of its freedom
to determine entirely the requisites of membership. Why?
Because you are so powerful. Your being a member or
not determines whether you can continue working or not.
Only a grave compelling reason can prevent you from not
accepting an employee as a union member if you have a
union security clause. Bargaining unit, you are a union for
that bargaining unit. You are not free to reject those who
want to become a member of that bargaining unit in your
union if you have a union security clause. If you do not
have a union security clause, you can be very exclusive.
Why? You do not have power to indirectly make a man
lose his livelihood. Part of the job of the State is not only
to watch out. It makes sure that management believes.
Makes sure that the government is not oppressive. Makes
sure that the union is not oppressive likewise. How do
they do it? By a system of registration. You are asked to
register. The employee as member of the union has a
resort for complaints vis--vis the union. That is called an
intra-union controversy. Why is that recognized? Because
of the real possibility that the union can be oppressive to
each members.
What are some of the provisions of the Labor Code that
are now protecting the Union?
1. This principle enunciated in the implementing
rules, that once a union is registered with the
Department of Labor, its registration cannot be
attacked collaterally, not subject to collateral
attack. What is the meaning of that? You need a
distinct and a separate proceeding to attack the
registration of the union. Before it was possible,
a union files a petition election vis--vis its
employer. The employer can file an opposition
saying that one filing the petition is not a union
so cannot be subject for registration. There are
lots of cases with that but dont read them coz
they are no longer applicable. Why? Because the
rule now says that once you are registered, your
registration can only be attacked by a separate
proceeding, you must file distinct proceeding for
the cancellation of the registration of the union.
Only direct attack is possible not collateral. First
enunciated in Pagpalain Haulers Inc. vs.
Trajano. Samahan ng mga Manggagawa ng
Samma vs. Samma Corporation March 13, 2009
penned by Justice Corona.
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 Lectures on Labor Relations
From the Lectures and Hand-Outs of Father Agustin L. Nazareno
2. Now somebody applies, brings application for
union registration and then the Bureau of Labor
does not approve it the registration and there is
no real legal objection, it is just they dont act
on it. What is the remedy? Their remedy is
MANDAMUS. Then that is the protection of the
union.
3. Now there are other provisions, the grounds for
the cancellation of the registration of the union
is now just limited to 3 before so many grounds.
Any violation of the members rights, conditions
of the membership is already a ground for the
cancellation of the registration. Now there are
just 3.
4. Again, what happens if a union loses its way and
register instead to Department of Labor,
registers in the Securities and Exchange
Commission, muingon ka na ka-kenkoy man
ana, naa na nahitabo na, you read the case of
Cebu Seamens Assn., Inc. vs. Calleja 212 SCRA
50 1992. Asa man diay tong ilang gisugo para
magregister sa union? Imbes nga mag-adto sa
Department of Labor niadto sa SEC. Narehistro
didto sa SEC, unsa naman sila? Nahimo silang
association- Cebu Seamens Association Inc.
gud. Now when we file a petition for election of
registration wala dawata sa Department of
Labor, what? They dont recognize
incorporation, the registration; you have to
register with us. So again they had to register.
Pagrehistro nila, nag-organize nasad sila, nag-
election nasad sila so what happens? There are
two sets of officers, corporation officers and the
union officers. Then when you have 2 sets,
mag-away gyud na Kinsa man ang mukupot sa
kuwarta? Mag-away na na sila, who has the
right, the treasurer of the corporation or the
treasurer of the union. The SC says that the
Department of Labor is correct only the
treasurer of the union has the lawful right to
possess the union dues, to collect them from the
members not the corporation treasurer .
Now let me ask you this question, there is this proviso,
291 letter C, any employee whether employed for a
definite period or not shall beginning on his first day of
his service be considered as an employee for the
purposes of membership in any labor organization. Is this
a right to be a member of a union for as long as there is
a union in your company, and the union cannot deny you
membership because it his first day of his service be
considered as an employee for the purposes of
membership in any labor organization. Now we are
talking about the right of the union to accept you as a
member or not, does this close all the unions rights for
you to become a member?
The union is the union for the regular production workers
of this company. Regular production workers. The
employee is still probationary; can he join the union of
the regular employee? Muingon ka na mao man ang sulti
291 letter C, whether employed for a definite period or
not shall beginning on his first day of his service, can he
force the union to accept him? No! Can he join? Yes if he
is allowed by the union but later on we will see that if
their bargaining agreement arrived at, that bargaining
agreement covers only of that of the regular workers, the
members of the union who are not within that bargaining
unit are not covered in the enjoyment of that collective
bargaining unit. So make sure you have a clear ideas
about the right of the union member to join a union, the
right of the employee to join, when can he demand that
III Manresa 2014-2015
right, the union, when does the union have the freedom
to say no to a union member . The union is for the
production workers, one of the workers is the driver of
the manager of the production plant, he is a regular
worker but he drives for the manager. Muingon ang
union, di ko mudawat nimo kay espiya ka, you are with
the manager, every time you attend the meeting here
and when you hear something i-report dayun nimo sa
manager so we will not accept you, can the union say
that? Better have clear ideas about that, which right can
be invoked in each of these situations in that way you will
understand the right to self-organization and the right of
unions to determine its membership.
See you each other 2 hours from now.
July 17, 2014
Second Part
ADCJ
When employees can unionize, they can file a case in
court but normally because they are unschooled, they
cannot. Now, normally, its the union who files the case.
Give a distinction between the real party in interest and
the representative party. The real party in interest is
always named represented by and then the
representative. Normally, the real party in interest
cannot bring the case because there are some limitation
because of his or her personality.
Now, when a union files a case, what is the name of the
case? just the union. Let us say its a money claims
complaint-- underpayment or nonpayment of the wage.
Whats the title of the case? complainantunions name.
Are the members named? No, they are not named. Its
enough. versus the employer who is the respondent.
Respondent always because this is an administrative
case.
What happens if a unions personality is being attacked in
a separate case. The management makes that
manifestation before the Labor Arbiter where the money
claims is filed. Is the cancellation proceedings of the
unions registration a prejudicial question which must be
entertained before the money claims continue? NO. It
continues.
Suppose there is already a finding in the Bureau of Labor
Relations that the unions registration should be
cancelled. The employer makes now a manifestation in
the money claims complaint before the labor arbiter.
What should the labor arbiter do? NOTHNG. The case
continues because it is still not final.
What happens if and when that decision of Bureau of
Labor Relations is finally adjudged and affrmed and it is
executory? That means that unions registration is
cancelled and then the money claims complaint is still in
progress what happens? IT STILL CONTINUES. IT IS
UNAFFECTED.
It normally happens let us say 100 union members. In
the money claims complaint, the union is the only one
named. In the meantime na nagipit na ang mga workers,
management continues to make offers. You are asking
for a total of P180,000. Kanus-a pa ni mahuman ning
kaso? Can you not see? Musaka pa mi hantod SC. Patay
na ka. Unsa na lang kaha kung mudawat ka niini?
Compromise? let us say, of the 100 employees
representing the union, 50 accept the compromise and it
is not reported to the labor arbiter. What happens when
there is a decision in favor of the union? It only applies
for those who did not enter into compromise. When is it
settled? In the execution part. Management will produce
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 Lectures on Labor Relations
From the Lectures and Hand-Outs of Father Agustin L. Nazareno
all the quitclaims and receipts. Suppose all entered into
compromise. The management can present that and
thats it.
Suppose the amount is much higher than what was
compromised, what is the result? As long as the
compromise is with an adequate consideration. In other
words, it is not grossly inadequate, that compromise will
hold and the union shall have fulfilled its pay.
We go back to Baby Uyanguren represented by City
Mayor Rodrigo Duterte. How is the case titled? Ahh you
have not taken special proceedings. It is In Re:
abandoned case of Baby Uyanguren represented by City
Mayor Rodrigo Duterte and then the caption will be
adoption. Case Number: SPP let us say something
happens to Mayor Duterte, God forbid. What will happen?
The court when informed upon his death will appoint
another representative. The court will summon the vice
mayor. are you willing to represent baby found in
UyangurenBaby Uyanguren? and the vice mayor says
no! I dont want to adopt. I have already 8 known
children. So what happens? The court will order, city
health officer can you represent? until there is
representative, the case cannot go on. That is the
general rule on representative party but in labor that is
not the way. In corporations, it is when a corporation has
to bring suit, there has to be a natural person that
stands. First, you have the Board of Trustees/ Directors
passing a resolution to file a case, otherwise, there is no
case. Are they asking, will the Labor Arbiter ask for the
resolution of the Board of Directors of the union? NO!
they do not ask!
Is the union required to file an affidavit of non forum
shopping? NO! The union is not obliged to file an affidavit
of forum shopping. Why? Its in favor of the employee/
working man. The situation is such that the working man
is given all the benefit of the doubt to be able to recover
his wages. Read the cases that are given there beause
you will see what I mean.
Now, can the union enter into compromise with
management? Management is offering compromise. look
each of the workers the average money caims is
P150,000. This case may reach 8-10 years and that is
very liberal forecast because conservative forecast it will
take 15 years. Unsa kaha kung musugot na lang ka ug
compromise? Inyo pa dayon ang kwarta P50,000.00 NO!
THEY CANNOT. The only way the union can enter into
compromise, by getting the individual employees to
execute a compromise agreement. Why? Because they
are the real parties in interest. Dili man ang union ang
mutunga kada alas otso sa buntag ug mugawas alas
singko sa hapon. Ang tao man! Sila man ang sweldohan.
That is why it is they who will execute the compromise
agreement.
Is it enough for a union to call for a general meeting?
mao ni ang makobra nimo. Mao ni atong gipangayo ha.
P150,000.00 kada isa sa ato pero ang kompanya
naghanyo P50,000.00 karon dayon nato madawat. Wa
nay daghang libog. Di ninyo ni dawaton? 2/3 vote ang
nigawas. Is that enough? it needs an individual written
compromise agreement. There is a need an individual
written compromise agreement. So, that is not enough.
But you know that there is a very interesting case. I
forgot the title. The only one who has broken that
principle indirectly is the Department of Labor under the
most unschooled presidentJoseph Estrada. He
succeeded by entering into a collective agreement with
Phil. Airlines that for 10 years there will be no collective
bargaining. Steady lang. it was not even notified. Picture
III Manresa 2014-2015
taking etc. upheld by the Supreme Court. Thats the case
of Philippine Airlines. FROZEN. The name of their union is
Philippine Airlines Employees Association [PALEA]; for the
pilots, its ALPAP. Airline Pilots Association of the
Philippines [ALPAP]
Now, you are already in the union, what are your rights
vis-a-vis the union? Article 249. This used to be very
important before because each one of these was ground
for cancellation of the registration of the union. Now, it is
no longer true because the grounds are reduced into 3 as
enunciaated by Article 246. Let us go over these
Art. 241. Rights and conditions of membership in a
labor organization. The following are the rights
and conditions of membership in a labor
organization:
a. No arbitrary or excessive initiation fees
shall be required of the members of a
legitimate labor organization nor shall
arbitrary, excessive or oppressive fine and
forfeiture be imposed;
-what is the measurement for the determination
of whether or not an initiation is arbitrary or
excessive? How do you know when it is
excessive? It depends on the pay of the union
member. The pay level of the bargaining unit
employees. If you are a member of ALPAP,
P35,000 initiation fee is reasonable. Your basic
pay is P200,000.00 then you have other
additional compensation. So, P25,000 is
reasonable. But if you ask P500 and the
minimum wage is P250, the workers may
already cry out because the general rule of the
thumb is the monthly contribution to the union
should not exceed 1 days pay.Thats the
normal. Sa 30 days sa bulan, 24 days of which
nagtrabaho ka. 4 ka semana sa usa ka bulan.
Upat ka adlaw lang imong ihatag sa Ginoo kay
musimba ka. Usa ka adlaw na bayad sa imoha
ihatag nimo sa union. Is that excessive? Upat sa
Ginoo, isa sa union? Dili. Pero kung duha na
gani, unsa naman ng union? Ginoo-ginoo na pud
diay na siya? [LOL!]
b. The members shall be entitled to full and
detailed reports from their officers and
representatives of all financial
transactions as provided for in the
constitution and by-laws of the
organization;
-full financial report. If you go through these
[the article], 2/3 of the rights has something to
do with money. Why? Because that is always the
source of quarrel. Its always money. Ang union
mag-away sa kwarta. detailed financial reports.
Detailed. Very difficult to enforce. Why? Sige
bagulbol ang mga tao di man sila mangayo ug
account. Why? Because of our culture. Mangayo
na gani ka ug account/ report, mutubag dayon
ang isa unsa ka? Wala kay salig nako? mag-
away namo dayon. Full and detailed financial
reports.
c. The members shall directly elect their
officers, including those of the national
union or federation, to which they or their
union is affiliated, by secret ballot at
intervals of five (5) years. No qualification
requirements for candidacy to any position
shall be imposed other than membership
in good standing in subject labor
organization. The secretary or any other
responsible union officer shall furnish the
Secretary of Labor and Employment with a
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 Lectures on Labor Relations
From the Lectures and Hand-Outs of Father Agustin L. Nazareno
list of the newly-elected officers, together
with the appointive officers or agents who
are entrusted with the handling of funds,
within thirty (30) calendar days after the
election of officers or from the occurrence
of any change in the list of officers of the
labor organization; (As amended by
Section 16, Republic Act No. 6715, March
21, 1989)
-why is this a right to directly elect? Because
before there is the system of representation. If
you are a labor federation, there are several
locals, you just call the president or the vice
president from the national convention and then
they elect the president. The general
membership, they elect. Just 1 person besides
the president and the vice president to go up
the national. Thats normally the system before.
But now, it is everybody who will elect the
president. Is that good? There are some who
are really in the union side who say that this is a
very bad provision because it is the candidate of
the employer who will win. PLDT, how many
workers? Its about 5,000 and there are so
many offices. From Laoag to Tawi-tawi. Now,
who can go around campaigning to these places
if he does not have the support of the
management so he can ride the plane? Thats
why they said that this provision is ridiculous.
The others also say NO! Associated Labor
Union [ALU], one of the greatest. Who is the
president? Atty. Democrito Mendoza. When did
he become president? 1954. The same year that
the Industrial Peace Act was enacted. Thats the
precursor of Book V of the Labor Code which
was deemed effective November 1, 1974.
Nausab na lang ang Labor Code, kinsa man ang
presidente sa ALU? Democrito Mendoza. Why is
that possible? Wala na jud nailisdi hangtod
karon. Lupig pa ang Santo Papa.
Trade Unions of the Philippines of Alliance
Services [TUPAS]. That is also a very huge
federation. Who is the president? Mr. Tupas
also! From the foundation up to now, it is still
Mr. Tupas. Pagkalain ana! A union has to be like
an army, you must trust the commander. He
knows the tactics alone because he is not
communicating the tactics kanus-a ta mag-
strike, kanus-a ta mag-ing-ani. Management
already knows about that. It will leak out! So,
only the leader knows. It must move like an
army as one if the union has the comparable
strength as that of the management. That is the
issue in either representative election or general
membershipwide election.
d. The members shall determine by secret
ballot, after due deliberation, any question
of major policy affecting the entire
membership of the organization, unless
the nature of the organization or force
majeure renders such secret ballot
impractical, in which case, the board of
directors of the organization may make
the decision in behalf of the general
membership;
So the determination of secret ballot after due
deliberation of questions affecting the entire
membership of the organization. Give an
example of an issue that affects general
membership;
III Manresa 2014-2015
example: union dues or initiation fee. Butuhan
na kung pila jud. Unya muingon ang union
increase na ta karon! Increase naman gani ang
suka. Increase na sad ang union dues! will the
members vote for the increase of the union
dues? NEVER. So, how would you increase? You
put the initiation fee and union dues in the by-
laws. Sa ato pa, when you enter into the union
you are deemed to have agreed to observe the
by laws. And the way is such that, it increases
as salaries increase. How will you put it that
way? Put it by percentage. 2% of annual salary
or 1% of annual salary. Everytime, the basic
increases, the union dues increases.
Detrmination on secret ballot. Strike? That is
why we will later find out that there is this
strike vote voted by the general membership
of the union.
e. No labor organization shall knowingly
admit as members or continue in
membership any individual who belongs to
a subversive organization or who is
engaged directly or indirectly in any
subversive activity;
-this has been repealed because there is no
longer a subversive organization.
f. No person who has been convicted of a
crime involving moral turpitude shall be
eligible for election as a union officer or
for appointment to any position in the
union;
-taas pa ug requirement ang union officer
president kaysa sa presidente sa Pilipinas.
convicted na of a crime, elected ra gihapon as
City Mayor of Manila.
g. No officer, agent or member of a labor
organization shall collect any fees, dues,
or other contributions in its behalf or
make any disbursement of its money or
funds unless he is duly authorized
pursuant to its constitution and by-laws;
-treasurer collects. You will later on find out that
a cooperative is under formation. The organizers
are the ones who collect. Now, diri naa ray usa
ang treasurer mag-issue ug resibo. Ang
problema ang membro maulaw man mangayo
ug resibo kay naanad naman sila na ing-ana ang
sistema. Wa man resibohi. That is the sickness
of the masa very informal. Mag-away na gani,
iyahay na na ug tan-aw sa by-laws. Kinsa man
tong gitugutan? Hain naman tong nagakolekta?
Wa na dinha tua na sa Leyte.
h. Every payment of fees, dues or other
contributions by a member shall be
evidenced by a receipt signed by the
officer or agent making the collection and
entered into the record of the organization
to be kept and maintained for the purpose;
-again, this is all about money.
i. The funds of the organization shall not be
applied for any purpose or object other
than those expressly provided by its
constitution and by-laws or those
expressly authorized by written resolution
adopted by the majority of the members
at a general meeting duly called for the
purpose;
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-angay ni basahon sa PDAF. PDAF walay law.
there is no appropriation act. There is a
collection act.
j. Every income or revenue of the
organization shall be evidenced by a
record showing its source, and every
expenditure of its funds shall be evidenced
by a receipt from the person to whom the
payment is made, which shall state the
date, place and purpose of such payment.
Such record or receipt shall form part of
the financial records of the organization.
Any action involving the funds of the
organization shall prescribe after three (3)
years from the date of submission of the
annual financial report to the Department
of Labor and Employment or from the date
the same should have been submitted as
required by law, whichever comes earlier:
Provided, That this provision shall apply
only to a legitimate labor organization
which has submitted the financial report
requirements under this Code: Provided,
further, that failure of any labor
organization to comply with the periodic
financial reports required by law and such
rules and regulations promulgated
thereunder six (6) months after the
effectivity of this Act shall automatically
result in the cancellation of union
registration of such labor
organization; (As amended by Section 16,
Republic Act No. 6715, March 21, 1989)
-very easy to remember because money claims
prescribe in 3 years. Remember in Labor
Standards? Illegal dismissal prescribes in how
many years? 4 years. Lumanta vs. NLRC.
k. The officers of any labor organization shall
not be paid any compensation other than
the salaries and expenses due to their
positions as specifically provided for in its
constitution and by-laws, or in a written
resolution duly authorized by a majority of
all the members at a general membership
meeting duly called for the purpose. The
minutes of the meeting and the list of
participants and ballots cast shall be
subject to inspection by the Secretary of
Labor or his duly authorized
representatives. Any irregularities in the
approval of the resolutions shall be a
ground for impeachment or expulsion
from the organization;
-the general rule is that the union officers are
not compensated but the by-laws can provide
for compensation. But it must be there. You
know the president of PALEA? He is paid
compensation because he has to go around the
Philippines. Considerable compensation. But if it
is not provided, there is no prohibition from
granting you compensation by written resolution
duly authorized by majority of all the members
of the general membership. So, what is the 2nd
way of granting you compensation? Absolute
majority of all the members not just majority of
the quorum, but all the members. If there are
100 members, 51 must vote. What is the
quorum necessary for a valid meeting? 51. Now,
if you are going to pass this resolution to give
compensation to the officer, how many must
vote in that meeting? All of them. 51. That is the
III Manresa 2014-2015
meaning of this that it must be absolute
majority.
l. The treasurer of any labor organization
and every officer thereof who is
responsible for the account of such
organization or for the collection,
management, disbursement, custody or
control of the funds, moneys and other
properties of the organization, shall render
to the organization and to its members a
true and correct account of all moneys
received and paid by him since he
assumed office or since the last day on
which he rendered such account, and of all
bonds, securities and other properties of
the organization entrusted to his custody
or under his control. The rendering of such
account shall be made:
a. At least once a year within thirty
(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; and
-what is this majority absolute? It is
only quorum majority because there is
no all. It does not say all
c. Upon vacating his office.
-but, you will found out later that
during freedom period, you can no
longer bring a complaint or made an
inspection of the records of the
treasurer of the union because that is
considered as harassment. We will
take that up later.
The account shall be duly audited and verified
by affidavit and a copy thereof shall be
furnished the Secretary of Labor.
m. The books of accounts and other records
of the financial activities of any labor
organization shall be open to inspection by
any officer or member thereof during
office hours;
n. No special assessment or other
extraordinary fees may be levied upon the
members of a labor organization unless
authorized by a written resolution of a
majority of all the members in a general
membership meeting duly called for the
purpose. The secretary of the organization
shall record the minutes of the meeting
including the list of all members present,
the votes cast, the purpose of the special
assessment or fees and the recipient of
such assessment or fees. The record shall
be attested to by the president.
o. Other than for mandatory activities under
the Code, no special assessments,
attorneys fees, negotiation fees or any
other extraordinary fees may be checked
off from any amount due to an employee
without an individual written
authorization duly signed by the
employee. The authorization should
specifically state the amount, purpose and
beneficiary of the deduction; and
-the case here is ABS-CBN Supervisers vs.
ABS-CBN et al. You will see Loren Legarda,
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Mel Tiangco. They used to pay from their
increased amounts. The SC upheld it. Because
they did not take in an individual written
authorization. When it comes to special
assesment, there must be an authorization
special individual written authorization. The only
exception is mandatory activities. What is
mandatory? Letter [p]
p. It shall be the duty of any labor
organization and its officers to inform its
members on the provisions of its
constitution and by-laws, collective
bargaining agreement, the prevailing labor
relations system and all their rights and
obligations under existing labor laws.
Mura nag plato inyong panan-aw. [class laughed sign
of affirmation].
JULY 24, 2014
FIRST PART
We said that the union has no right to compromise a
money claims complaint of its members or those of the
bargaining unit because the right is personal in the
employee. And yet in one case the SC has held that it
was irregular on the part of the employer to secure
quitclaims and compromise agreements individually from
the workers without the intervention of the union. This is
Pampanga Sugar Dev. Co., Inc., vs. CIR 114 SCRA 725.
Needless to say, the means employed by the petitioner-
employer in the instant case, of dealing with its workers
individually instead of collectively through the private
respondent union and its counsel, violates good morals
as it undermines the unity of the union and fuels
industrial disputes, contrary to the declared policy of the
law. But if you examine the case closely, you can see that
the consideration for the quitclaim agreements
individually was not fair. So on that score, the court
found a way to nullify it. Grossly disadvantageous to the
employees.
Money claims of workers cannot be the object of
settlement or compromise made by a union or counsel
without the individual consent of the workers. The union
must be consulted because he can only assist the
employees but he cannot decide for them. Waivers of
money claims to be legally effective, the individual
consent or ratification of the workers or employees
involved must be shown. Neither the officers nor the
majority of the members of the union have any authority
to waive the accrued rights pertaining to the dissenting
minority members even under a CBA which provides for a
union shop. If it is in favor of the employee then the
unions intervention is alright. If it is not in favor of the
employee then the intervention of the union is not
alright. Always the yardstick is what is the ***** of the
employee. We were through the various rights and
conditions of membership of a labor organization. I said
before this used to be very important because each of
this was a ground for cancellation of registration of the
union. Now, no more. At most, each of this rights and
conditions maybe a ground for disciplinary action on the
part of the union officer in charge for whoever among the
officers of the union committed the wrong. He could
either be suspended or expelled from the union. This is
as much as what the **** of the rights and conditions of
membership is nowadays. The whole reasoning be, if that
is an erring union officer, why make the entire union
suffer the consequence by cancellation of registration. So
that union registration is no longer cancelled, the guilty
union officer is the one who is to *****.
III Manresa 2014-2015
There is a particular instance where the union can collect
union dues even without the resolution approved by the
outstanding majority of the membership. What is that?
The so-called mandatory activities, where expenses are
needed for mandatory activities. An example is a seminar
to inform the organization and the officers on the
provisions on its constitution and by-laws, its collective
bargaining agreement and the prevailing labor relations
system and all the rights and obligations under existing
labor laws. That is 249(p). Thats why it says, for this
purpose, registered labor organizations may assess
reasonable dues to finance labor relations seminars and
other labor education activities. So this is an exception to
the rule.
Rights of legitimate labor organizations, 250. A legitimate
labor organization shall have the right to act as the
representative of its members for the purpose of
collective bargaining. This is a misleading statement
because a legitimate labor organization cannot act as a
collective bargaining agent. It must be an exclusive
bargaining agent. So when a union acts as a collective
bargaining agent, it cannot act just for its members. It
must act for the entire bargaining unit, members and
non-members included. You will see later on what the
difference is between the bargaining unit and the union
itself. For the time being just keep this distinction, the
bargaining unit is the principal, the union is the agent of
the principal. Whenever there is a collective bargaining
unit, whenever there is collective bargaining process,
negotiating the cba, the union carries with it not just the
members but also the non-members for as long as they
are covered by the bargaining unit. This is inaccurate, the
statement. So I refer you for better understanding of this
statement, Furusawa Rubber Phil, Inc vs. Secretary. The
SC there says representing its members primordially
involves the right to be certified as the exclusive
representative of all the employees in the appropriate
bargaining unit or purposes of collective bargaining.
Second, to be certified as the exclusive representative of
the employees in an appropriate collective bargaining unit
for purposes of collective bargaining. This one is more
accurate. If you are a legitimate labor organization, you
maybe certified as exclusive bargaining agent. You go
through a certification election if you garner a majority of
the valid votes cast in that election then you can be
certified as the exclusive bargaining agent of that
bargaining unit.
Letter c, to be furnished by the employer, upon written
request, with its annual audited financial statements,
including the balance sheet and the profit and loss
statement, within thirty (30) calendar days from the date
of receipt of the request, after the union has been duly
recognized by the employer or certified as the sole and
exclusive bargaining representative of the employees in
the bargaining unit, or within sixty (60) calendar days
before the expiration of the existing collective bargaining
agreement, or during the collective bargaining
negotiation. The union has a right to the latest audited
financial statements of the employer. Audited financial
statements include balance sheets and profit and loss
statement. Can the union request to ********* of the
balance sheets or of the profit and loss statement? If it is
required for proper appreciation and understanding of the
financial statement so as to enable it to draw up more
meaningful bargaining proposals, then that is considered
part and parcel of the financial statements and the union
can ask for a copy. An audited financial statement
contains footnotes to make certain items in the balance
sheet or profit and loss statement understandable. You
have it there and you can ask for it in order to render the
financial statements understandable. This right is granted
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From the Lectures and Hand-Outs of Father Agustin L. Nazareno
so that the union will have a realistic basis for drawing up
its bargaining proposals. That is why before collective
bargaining, as soon as the union is declared exclusive
bargaining agent, it has the right to demand a copy of
the latest audited financial statement or if a collective
bargaining agreement exists, within 60 days from the
expiration of the cba, the union also has the right to
demand the latest financial statement because renewal of
the cba is possible during that time, that is allowed by
law, that the parties renew the cba. If the union has not
ask before collective bargaining or the 60 day period has
elapsed without asking for it and is already in the process
of bargaining, it can also demand during bargaining a
copy of the latest audited financial statements. So there
are 3 instances. Has there been a decision on the part of
the SC? There has been. Only it is not a decision that is
ratio decidendi, it is obiter dictum because the SC there
says, in Standard Chartered Bank Employees Union NUBE
vs. Confessor, while the refusal to furnish the requested
information is in itself an unfair labor practice, however, if
the union failed to put its request in writing as required in
Article 250 (c) of the LC, the employer cannot be held
liable for unfair labor practice. What the SC say here is
failure on the part of the employer to furnish the latest
audited financial statement upon written request of the
exclusive bargaining agent that is an unfair labor
practice. The union can be penalized for that.
Letter d and e, these are so called inherent powers of the
union, to own property, real or personal, for the use and
benefit of the labor organization and its members. To sue
and be sued in its registered name. What do you mean
by inherent powers? These powers define the union. It is
tied to its personality. It could not be a union if it could
not own property or it could not sue or be sued. So even
if there was no law amended or legislated, the union still
has the power to sue and be sued, to own real and
personal property. That is the essence of ******. We
learn from civil law that to make a person is to be the
subject of rights and obligations. Primary right is property
right. You are a natural person. You might forsake real
property but you cannot be exempted from any relation
to real property. You must have rights to real property.
This right is pure surplusage. You do not have to right
this down.
Letter f, to undertake all other activities designed to
benefit the organization and its members, including
cooperative, housing welfare and other projects not
contrary to law. The union puts up a cooperative, the
members of the cooperative are also the members of the
union but the officers in the cooperative are separate and
distinct from the officers in the union. Supposed there is
a breakdown in collective bargaining and the members
themselves of the union. Now, almost to a man and to a
woman demand that the officers of the cooperative now
represent the bargaining unit in collective bargaining. Can
that be done? It is a mere formality. What composes the
cooperative is the same composition as the union. They
must first elect the officers of the cooperative as officers
of the union. They must first expel all those officers of
the union if they want to do that. Why? Because of the
personality that is recognized in labor code is the union.
Its not the cooperative. Supposed like the labor union
PALEA, they engaged in buying and selling dried fish
because they have planes flying. Question, is that
taxable? Because in the last paragraph it says,
notwithstanding any provision of a general or special law
to the contrary, the income and the properties of
legitimate labor organizations, including grants,
endowments, gifts, donations and contributions they may
receive from fraternal and similar organizations, local or
foreign, which are actually, directly and exclusively used
for their lawful purposes, shall be free from taxes, duties
III Manresa 2014-2015
and other assessments. The exemptions provided herein
may be withdrawn only by a special law expressly
repealing this provision. You know from your taxation
that the general attitude of the trier of facts of the court
with respect to exemption is interpreted strictly against
the taxpayer. All doubts are resolved in favor of taxation
not on exemption. If there is a doubt as to whether or
not a particular tax exemption provision of law has been
repealed, what is the general interprentation? It has been
repealed. That is the biased of the law because the law
does not look in favor of tax exemption because taxes
are the lifeblood of the State. Now, here, there is a
provision of law in favor of retaining this exemption. It
says exemptions provided herein may be withdrawn only
by a special law expressly repealing this provision. What
are these tax exemptions? Exempt from income tax.
What else? Gift tax. Donation is a gift. Endowments is a
gift. And these are gifts locally sourced or sourced from
abroad. The income is exempt from tax. So kung mag
negosyo ka union ug bulad, and it gains income, is it
exempt? Remember it says here, actually, directly and
exclusively used for their lawful purposes. What is
exempt is income by way of union dues. Assessments
because they are actually and directly used for the union.
If a union forms a cooperative then it engages in the
business of selling bulad to its members, is that exempt
from income tax? It is because now they are a
cooperative. A cooperative is exempt from tax but not
because it is a union. If the union wants a form of tax
exempt activity, form a cooperative. Form a cooperative
for housing, credit, marketing. That is also tax exempt
not because it is a union but because it is a cooperative.
And then it is exempted from taxes, duties and other
assessments.
What are assessments, other assessments? You will take
it up in the National Internal Revenue Code. Certain
legislative bodies are allowed to make assessments. You
have a property. It is valued decently but not handsomely
and all of the sudden there is a four-lane highway that is
paved where your property is located and suddenly the
value of the property increases by leaps and bounds.
Before it was only, let us say, three hundred pesos per
square meter, now it is ten thousand pesos per square
meter. Tan-awa nang Mintal, Tan-awa ang Mintal.
Kadagko na kayo ang mga dalan. Butngan na nag mga
mall. And the City Sanggunian is planning to impose and
assessment. Because your property has gained in value.
Wa pa ba mo kasaka sa mintal kadyut karong panahuna?
Tanawa. But if is the union there that has a piece of land
and has a headquarters and there is an assessment. It is
exempt from assessment. So, rights of legitimate labor
organizations. What is an intra-union dispute? An intra-
union dispute is one between a union member and an
officer, a union member and another union member, an
officer versus an officer ect. Now, when there is a
controversy of that nature, who has jurisdiction? It is the
Bureau of Labor Relations. You file it with the med arbiter
in the same office where you file a petition for
certification election. Now, what is the rule with respect
to intra-union disputes? The rule is- you must first
exhaust your internal remedies. Every union has a
constitution and by-laws. In the by-laws you have
provisions there that outline the remedies of an
aggrieved member to whom does he bring his complaint?
Then you actually have(inaudible) . Only then can you
bring it to the bureau of labor relations, to the med
arbiter. Away duha ka union member. Give an example.
The collective bargaining agreement says- management
recognizes the unions rights to recommend any of its
members to fill up a vacancy in the work force covered
by the CBA. So, let us say that there is this machine.
Were talking about a textile machine, a weaving
machine. Normally there is a weaving machine tender na
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From the Lectures and Hand-Outs of Father Agustin L. Nazareno
tig padagan ana, tig switch, tig off. Human naa siyay
assistant tender, naa siay oiler, naa siyay feeder. Mu-
retire na nang tender. Kinsa man mu puli sa tender? The
weaving machine tender? Kinsa man mu-puli. It depends
to the union. Logically the assistant who is the next
closes and the most knowlegable, should be the one who
takes his place. But the union recommends the oiler?
Ngano man ang oiler man jud gi-recommend. Kay
parente man sa vice-president sa union. Nag reklamo ang
assistant tender. Can he go straight to the BLR? No. he
first goes to the unions internal complaint procedure. Di
pa gani siya satisfied, thats when he brings it to the med
arbiter of the Bureau of Labor Relations. Alright, what is
an inter-union dispute. An inter-union dispute is a fight
between two unions. Who has exclusive and original
jurisdiction? It is also the BLR. Normally that happens
during certification election. One union claims that there
was massive cheating. Magkatawa mo ana. Katawa mo.
Pero sige lang jud ni. There is no clean election result
beyond protest the moment the number in a collective
bargaining unit exceeds one thousand. Ngano man?
Huna hunaa ninyo. Pila man ang minimum wage?-300. If
the union dues is just one half of a days salary per
month-150. One thousand na ka tao eh di 150,000 na na.
multiply that by 12 sobra million na na. mag away nang
tao. Mag away man gani-ug diyes pesos. Mag away na sa
1 million. Kinsay may madaog?- inter-union dispute. Here
there is no question of exhausting internal remedies. You
go straight to the med arbiter and you protest. You will
learn later on how an election protest in a certification
election is done. Now, cancellation proceedings. When
the registration of a union is sought to be cancelled that
is also an intra-union dispute. Who has jurisdiction? Again
it is the BLR. The Bureau of Labor Relations Med Arbiter.
Now, if you are in the government and you have an issue
about your union. Is it the Civil Service Commission that
has jurisdiction? It is the BLR according to the Supreme
Court not the Civil Service Commission. Why is that?
Because according to the Supreme Court- the Civil
Service Commission does not have the technical
competence. The Bureau of Labor Relations has the
technical competence to rule on disputes where what is
to be applied are exactly the provisions in article 250 and
249 of the Labor Code, rights and conditions of
membership and the rights of legitimate labor
organizations. Federation, National Union. To be a
federation you register, it is needed that you should have
ten locals that are exclusive bargaining agents of their
bargaining units. Thats the minimum. Before, if you have
less than that, your license is automatically cancelled it is
a ground for cancellation. Now, the law is specific 9481,
only three grounds for cancellation. Is it possible to have
a federation to no longer have any local? Wala na siyay
local and his license is still operative. Sad to say- yes.
Mao nang tinuod na ghost union. Wa na nay sulod.
Federation na wala nay sulod na siya. No more locals and
yet it cannot be cancelled. Why can it be not cancelled?
Because it is no longer a ground for cancellation. It can
only be cancelled if its members in a meeting duly called
for the purpose will vote for cancelling. Wa na may
members. Unsa nalang man himuon ana? Mangilkil
nalang. Mag sige nalang ug file for certification election
pang hadlok anang mga gagmay tindahan aron pang
litkan na sila. Tan awa na. tan awa na. Thats the law
created by the labor law genius-Jinggoy Estrada. That is
the result. Let us pray for him because he is now in jail.
III Manresa 2014-2015
Second Exam Coverage
July 30, 2014
BIA
We will begin taking up certification elections. For
certification election, you should be familiar with the
definitions in Book V, Rule I, Section 1, Bargaining Unit
Bargaining unit refers to a group of EEs sharing mutual
interests within a given employer unit, comprised of all or
less than all of the entire body of employees in the
employer unit or any specific occupational or
geographical grouping within such employer unit.
This definition was taken from Rothenburg who is an
inferior (?) commentary on world war labor relations.
Take a look at that definition right there. I will tell you of
the defect of that definition. The defect is that it is not a
group of employees because if it were, then it continues
to change everytime there is a change in the composition
of EEs. But the bargaining unit remains constant
throughout the life of a CBA. The only time it changes is
after the CBA has expired and there are certain changes
that occur. The bargaining unit is the beneficiary for
whom the bargaining agent enters into CBA. The
bargaining unit is the principal and the beneficiary for
whom the union enters into collective bargaining.
Many times it is bigger than the union because it is
conceivable that at all in the bargaining unit are members
of the union which is the exclusive bargaining
representative. So unless there is a unanimous, uniform,
adherence to one union, the the union will be co-
extensive with the bargaining unit. Until there is a new
EE that is admitted into the bargaining unit because he or
she does not necessarily become a member of the union
on the first day of work.
So the better way to think of a bargaining unit is that it is
a list of positions occupied by EEs. It is more of a list of
positions occupied by EEs. There it says: group of EEs
sharing mutual interests within a given employer unit,
comprised of all or less than all This should not be
comprised of all or less than all, it should be less than all.
Why?
Because within the ER there are already
managers, they are already excluded. They are
prohibited from law from joining any union.
There are supervisors who can never belong to
a rank and file bargaining unit.
So as a general rule, you cannot say composed
of all or less than all.
The ONLY TIME you can say of composed of all
is, when? Single EEs! Thats the only time you
can say, which is very rare.
Again, let me point out:
"Certification Election" or consent election refers to the
process of determining, through secret ballot, the sole
and exclusive representative of the employees in an
appropriate bargaining unit, for purposes of collective
bargaining or negotiation. A certification election is
ordered by the Department, while a consent election is
voluntarily agreed upon by the parties, with or without
the intervention by the Department
Time and again the SC has said that there has to be a
certification election even if there is only one union vying
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for the allegiance of the EEs of that bargaining unit.
There has to be an election because as you have found
out in the right to self organization, it includes the right
not to join a union. So even if there is one union, you still
have to have an election between 1 union and no union.
A certification election is ordered by the Department,
while a consent election is voluntarily agreed upon by the
parties, with or without the intervention by the
Department
If the department does not intervene, who
certifies? In other words, a consent election is a
species of certification election. It is only called
consent election because the fact is we do not
dispute the configuration of the bargaining unit,
they already agree as to the configuration of the
bargaining unit as the same is described in the
petition for certification election. So they just
say, let us go ahead with the election. They
consent to the election
But then the DOLE adds with or without the
intervention by the Department. Who certifies
it, if there is no need for the DOLE to
intervene?
Its as stupid as saying certified financial
statements without need of an external auditor.
Kinsa may muingon na kanang financial
statement husto siya na mga numero, husto sa
lagda, and it reflects faithfully under generally
accepted acctg principles the financial story of
the corporation? It must be the 3rd party an
independent external auditor.
Kana ang trabaho sa DOLE, naay ER, naay EE.
Ang EE mupili sa iyahang representative na
makigsabot sa iyahang ER bahin sa lagda sa
trabaho, oras, sweldo. Kining napili, tinuod ba ni
na gipili sa mga EE? Kinsay muingon ana?
Source na independent na walay gisaligan, kani
tinuod ni na gipili thats why hes certified. It is
a certified, exclusive bargaining unit. Makacertify
ba ka sa imong kaugalingon? What is that called
in evidence? Self-serving evidence! you cannot
help but certify yourself. *jokes on being bright
and DL na dili ka certified kung ikaw ra
ningingon*
BUT YET THE DEPARTMENT CHANGED THAT!
This is what you get when a nincompoop like
Jingoy Estrada authors these laws. *Jingoy
rants*
[note, wala na-answer ni father ang question. ]
So you have a group of EEs who can enter into a contract
of employment. By virtue of a certification election, the
individual contracts of employment is set aside, its
equivalently nullified and a new contract is entered into.
That is a collective bargaining agreement (CBA).
A CBA is entered into by the representative of the EEs.
Now, under EO 180, when it is with respect to public
sector EEs, there is no need for certification election,
there is only 1 union which seeks for certification and
bargaining. I can see why that is practical because
anyway in the government sector, you do not enter into
an agreement with respect to rates of pay, etc because
they are all provided by law. You only negotiate taking
vacation leave, etc. inconsequential things about the
terms of work because the terms and conditions are
provided by law. I can see why that is tolerable with the
public sector.
But when it comes to the private sector, you enter into
individual contracts of employment. Now, granted those
contracts of employment are contracts of adhesion
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[definition of contract of adhesion]. Now ER-EE contract
is a contract of adhesion, unless you are LEBRON JAMES
or any of those NBA players. They have their agents who
enter into contract s for them. Michael Jordans contract
had a clause for love of the game clause. What is the
meaning of that? That if he felt like it, he wanted to, he
can play 3-on-3 in any street game wherever he wanted
because he loved the game. So the NBA cannot stop him!
*basketball stories, insurance contracts of NBA players
stories*
In contracts of adhesion, it is the ER who dictates the
terms and conditions. This is a violation of the theory on
contracts where theoretically the persons who enter into
contracts should stand on equal footing. Is it? Before,
when I was younger I would say, yes it is a violation. But
now, I doubt. The life of businesses are becoming shorter
and shorter, and it is the life of the business venture that
gets shorter and so many things take over it.
*earthen pot substituted by iron pots, etc stories,
microwave stories*
Individual contracts of employment are largely contracts
of adhesion because the ER actually takes the bigger risk.
He is not only risking labor, he is risking PAST labor.
Capital is past labor saved.
Top management cannot be organized, so if you count
top management, the union can only be less than the
employer unit. The ER unit is the entire complement
here. Is management an EE?
Yes. Why? Because he meets the 4 criteria of
ER-EE relationship [he is engaged, selection and
hiring, paid wages, they can be fired, etc] but
he is not a true EE, because he acts for and in
behalf of the ER. So duha na iyahang kalo na
gisuot, he wears 2 hats. For that reason he is
not allowed to enter into collective bargaining
A supervisor is viewed as a pure EE and
management. So therefore he is allowed to form
a union in a limited fashion he must form his
own bargaining unit with his own union, he
cannot join rank and file.
Now you have the rank and file here. Rank and
file can only be less than the ER unit.
The only exception is when there is only 1 EE. If
you are a single EE in the workplace which is
very rare, or you are an incorporated EE. Who is
an incorporated EE? What is an example?
o Example: Manny pacquiao inc. the
number 1 EE and asset is many
pacquiao. Why did he incorporate? So
he can charge for his personal
expenses to income.
Thats the only time when you are the entire ER
unit.
Now this rank and file must make a choice in the exercise
of self organization.
1st choice WON representation
2nd choice Which among the choices [a, b, c] is the
exclusive representative
Those are the issues that are to be determined in
certification election. Those are the questions. This is a
pre-election determination. The bargaining unit, during
the election, these are the choices:
Won representation (1 of choices is no union;
others, union a, b, c, etc)
When it is already an organized establishment, there is
already a union. When there is a subsequent election,
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there is no more, NO UNION [choice], it is only union
candidates because it is already organized.
UNLESS there is 20% in the bargaining unit who will file
a petition for no union. They want the organized
establishment to go back to a state of no representation,
they want to go back to INDIVIDUAL CONTRACTS.
This is certification election.
August 6, 2014
Rules to implement the labor code. Again let me remind
you, that that is the correct name of the rules - not what
the SC says it is. The SC calls it Omnibus Rules to
Implement the Labor Code and the SC is wrong. Why?
*father directs class to page 372*
SECTION 1. Title. These Rules shall be referred to as
the "Rules to Implement the Labor Code."
Supreme Court has been misguided by Vicente Fos(?)
who used to print the omnibus rules to implement the
labor code. *stories about him*
We are in certification elections, before we go through
certification elections proper, we go through the different
terminologies. I asked you to go over Rule VII of Book V
of the rules to implement the labor code. Remember
book V has been revised and the revision is d.o. 40-03
series of 2003. They had to revise it because there were
these subsequent amendments. RA 9481 which changed
some provisions.
Before, there was no need for any ceremony for
voluntary recognition. Voluntary recognition is what they
called the act of the ER dealing with a union coming up
with a collective bargaining agreement (CBA) even if that
union has not yet gone through a certification election. In
other words, if you havent gone thru a certification
election with the majority who looks to you as the
exclusive bargaining representative of that bargaining
unit, the ER who enters into contract with you does so
because he voluntary recognizes that you are the
exclusive representative. It is by his own volition that he
does so.
Once you arrive at a CBA, that CBA has been signed and
you go to BLR and you register the CBA. When the BLR
accepts it for registration and stamps it as certified, then
that act of the BLR is called direct certification.
Why is it direct?
Because the normal process is you go thru an
election, the winner of the election is the union
which the BLR will certify as the EBR. He enters
into contract with management and
management pays the P1000 and the union
registers that agreement with the BLR. Then,
the BLR stamps the CBA and the CBA is
certified, NOT THE UNION.
WHY? Because the union is already certified
upon the declaration that it is the winner of the
election. Kaning certify certify, sabta ni ha?
In other words, a union that wins a certification
elections succeeds in entering into a CBA with
management and management registers it,
there is no need for that union to be certified
because he is already certified. It is the
agreement that should be certified. An
agreement that is certified is binding against the
WHOLE WORLD, no other union, as long as that
CBA is existent, no union can come in and
bargain with management for as long as the
III Manresa 2014-2015
CBA is extant. The parties are the same. The
union and management signed it, they are the
only ones recognized, no body else.
If somebody else wishes to bargain, they will be
cast away! Thats the law. EXCLUSIVE
bargaining units. Exclusive is bisag di na ka
gusto, mao gihapon na. pareho nagkaminyuon
na di na ka gusto sa imong partner kay bad
breath na ka. Wa kay mahimo! *marriage
stories* thats why marriage agreements are
registered with the ROD [civil registrar?] and per
chance if you succeed in annulling, what is there
to do? Not to miss for that judgment to be
entered into the book of judgments. After it is
registered, bring it to the civil registrar to undo
the entry to marriage. It is binding against the
whole world! *title in marriage annulment cases
stories*
When you for a petition for certification election,
what is the title of the case? In Re: Petition for
Certification election at XYZ Corporation.
It is non-adversarial, that is ruling in LVN v.
Philippine Musicians Guild:
EN BANC
G.R. No. L-12582 January 28, 1961
LVN PICTURES, INC., petitioner-appellant, vs.
PHILIPPINE MUSICIANS Guild (FFW) and COURT OF
INDUSTRIAL RELATIONS, respondents-appellees.
CONCEPCION, J.:
The absence of an express allegation that the members
of the Guild constitute a proper bargaining unit is fatal
proceeding, for the same is not a "litigation" in the sense
in which this term is commonly understood, but a mere
investigation of a non-adversary, fact finding character, in
which the investigating agency plays the part of a
disinterested investigator seeking merely to ascertain the
desires of employees as to the matter of their
representation. In connection therewith, the court enjoys
a wide discretion in determining the procedure necessary
to insure the fair and free choice of bargaining
representatives by employees.
What is it then if it is non-adversarial? It is a fact-finding
proceeding.
What fact? The fact sought to be establish:
o WON the bargaining unit is composed
of LIVING HUMAN BEINGS workers and
they want representation or not
o If they answer is YES, then who is their
exclusive bargaining representative.
o If NO, there is no need to answer 2nd
fact.
There is now a rule about voluntary recognition. That is
found In rule 7 of book 5 of the rules. [please check with
Azucena for the corresponding UPDATED provisions
kay wala ni online, so di nako ma-copy paste.]
Sec. 1 when and where to file
Comments:
What is the document that is important?
Notice of voluntary recognition
If it were a certification election and the union wants to
be nominated, he files a petition for certification election.
That is Rule VIII.
Voluntary recognition why is it not a petition for
voluntary recognition? *says sample of petition*
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It is as stupid as saying kung magtaban man
mo, naa bay mutaban ug asawa na mananghid
sa ginikanan sa iyahang itaban? Naa ba? If you
want to elope with a certain lass, do you ask
permission from the parents of that lass before
you elope with her?
You ask permission if you want to get married
THATS CERTIFICATION ELECTION
Voluntary recognition is ELOPEMENT. Nagkuyog
na mo, nagkauyon na mo, nagpirma na mo.
What happens if you have been living together
as husband and wife without the benefit of
marriage defacto for 5 years. You want to
regularize your status, what do you do? You
dont apply for marriage certificate. You do not.
In fact, this very proceeding is the HEIGHT of
stupidity. Imagine you have to file a notice of
voluntary recognition with the office, which
issued a recognized labor unions certificate of
registration, or certificate of creation of a
chartered union. There are 2 difficulties under
this particular rule:
o It does not mention the work
place supposing sa federation and its
registered with the NCR, do you file the
voluntary notice in the NCR when you
are here operating in Katiil(?), Davao
Oriental? This is the same thing that
happened where the SC had to correct
where a certification election should be
filed because the earlier version of the
law said it should be filed in the
regional office of the DOLE that has
jurisdiction over the ER. When it did so,
that is when the Nestle Case occurred.
[sorry no citation] Later on, they
amended the provision in the
Implementing Rules. *silence*
o Note: wala giingon ni Father ang 2nd
Sec. 2. Requirements of the voluntary
recognition
Comments:
(a) Joint statement this is an affidavit under oath.
We, management and union, _______ have
this day on the part of management voluntary
recognize that the union is the sole and
exclusive baragaining representative of the
appropriate bargaining unit of the regular rank
and file EEs of XYZ Corp. and the union of
regular production workers of XYZ Corp accept
the recognition Sgd. Then you submit this!
(b) Certificate of posting that both management
and union hereby certify that notice of this
voluntary recognition has been posted in 2
conspicuous places in XYZ corporation from aug
1 to aug 16, 15 consecutive days, as reqd by
Sec 2
(c) Approximate number of EEs so take note no
signatures are required, just the approximate
number of EEs in the bargaining unit
accompanied by the names of those who
support the voluntary recognition
(d) Statement why is there no need for the
signatures of the majoritys subordinate?
o Because this is not a certification
proceeding. What the DOLE does with
the notice of voluntary recognition is to
recognize the recognition. They do not
certify the selection of the bargaining
unit. If they did, then they would have
required the signatures.
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Now, what is the effect once this is done?
Sec. 3 Action on the notice
Comments:
1st paragraph so they report it in the roster of
Legitimate labor unions that you are now recognized.
Who has the duty to retain a roster of LLO?
Bureau of Labor Relations; c.f. with 236
Article 236. Registry of unions and file of collective
bargaining agreements. The Bureau shall keep a registry
of legitimate labor organizations.
Now if the notice of voluntary recognition is recorded in
the registry of legitimate labor unions, is there a
promotion of the labor union with respect to collective
bargaining? Is his status now raised for him to engage in
collective bargaining?
What is the ranking of unions with respect to
collective bargaining, towards the right to being
the exclusive bargaining unit?
o 1st labor organization, your purpose
partakes in part or in whole collective
bargaining
o 2nd register with DOLE Legitimate
labor organization. So now you are in
the registry.
o To be exclusive bargaining agent, you
have to go thru certification election.
After you have been elected, you won,
then you become exclusive bargaining
agent. It is the DOLE that proclaims
and certifies you.
Here, after you receive notice of voluntary
recognition, naa lang man gihapon ka sa roster
of legitimate labor organization. Sec. 3, Rule VII
within 10 days from receipt of notice if it is
sufficient in form number and substance, the
labor relations division shall record the fact of
voluntary recognition in the roster
2nd paragraph [no comment, just read.]
Sec. 4 Effect of recording
1st paragraph [not read by father]
2nd paragraph effect is 1 year, no certification election
petition may be filed. Which is the same if they were
certified as if they were in a certification election.
You accomplish something because you have the
cooperation of management. Management draws up with
the participation of the union a notice of voluntary
recognition. You file it and it has the SAME EFFECT AS A
CERTIFICATION ELECTION!
Mark my words: this will be challenged by the courts. And
time and again, as in a long line of cases, once again,
this will be shut down because voluntary recognition is
inimical to the constitutional right to association, to the
statutory right of collective bargaining. That has
happened, so many times. So be familiar with Rule VII.
Recognition, what is recognition, the effect.
August 7, 2014
5:00-6:00
Kem
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From the Lectures and Hand-Outs of Father Agustin L. Nazareno
4 W and 1 H.
1st W.
Rule VIII Certification Election
Section 1. Who may file. Any legitimate labor
organization, including a national union or federation that
has issued a charter certificate to its local/chapter or the
local/chapter itself, may file a petition for certification
election.
A national union or federation filing a petition in
behalf of its local/chapter shall not be required to disclose
the names of the local/chapters officers and members,
but shall attach to the petition the charter certificate it
issued to its local/chapter.
When requested to bargain collectively in a
bargaining unit where no registered collective bargaining
agreement exists, an employer may file a petition for
certification election with the Regional Office.
In all cases, whether the petition for certification
election is filed by an employer or a legitimate labor
organization, the employer shall not be considered a
party thereto with a concomitant right to oppose a
petition for certification election. The employers
participation in such proceedings shall be limited to: (1)
being notified or informed of petitions of such nature;
and (2) submitting the list of employees during the pre-
election conference should the Med-Arbiter act favorably
on the petition.
Any employee has the right to intervene for the
protection of his individual right.
Who may file? A legitimate labor organization,
an employer when requested to bargain collectively and
20% of the bargaining unit of an organized establishment
during the freedom period when they file a petition for
de-certification election. They are not filing a petition for
certification election. They are filing a de-certification
election.
What is our authority for that? You go to the
case of LVN vs Phil. Musicians, 1 SCRA 132 (1961) and
examine the footnotes. There you will find a petition for
de-certification election. Our law does not recognized it
or rather is silent about it. But it is a logical and legal
necessity that it should be recognized. If it were not
recognized, then the 60-day freedom period will be less
than free. In other words, it will only be free for those
who want to have a union. But we know very well from
Victoriano vs. Elizalde that the right to form, join and
assist a labor organization of ones choice includes the
right not to join. Those who are of the persuasion not to
join should also be given the right to ****** during the
freedom period, otherwise, that period will be less than
free.
2nd W.
Section 2. Where to file. A petition for certification
election shall be filed with the Regional Office which
issued the petitioning unions certificate of registration/
certificate of creation of chartered local.
The petition shall be heard and resolved by the
Med-Arbiter;
Where two or more petitions involving the same
bargaining unit are filed in one Regional Office, the same
shall be automatically consolidated with the Med-Arbiter
who first acquired jurisdiction. Where the petitions are
III Manresa 2014-2015
filed in different Regional Offices, the Regional Office in
which the petition was first filed shall exclude all others;
in which case, the latter shall indorse the petition to the
former for consolidation.
I dont believe in this definition here in Section
2. There is a problem here. It is more accurate to say
that the petition should be filed in the Regional Office
that has jurisdiction over the workplace. In other words,
the work-level place of the union. What is the difficulty
about this? Let us say you have an original employer that
was nationwide and unionized. So originally, the office
that granted registration or certificate of creation of
chartered local was in the head office in Manila. Let us
say for some business reason or other this particular
corporation ****** and it is now just operating in Davao.
What happens? Are you still going to file a petition for
certification election in the NCR? Crazy! Where the
workplace is that where you a file a petition for
certification election. If your workplace is the entire
Philippines like PLDT, like PAL, the union there is a
national union. You file it in the NCR because that is the
office of the Department of Labor that has jurisdiction of
the entire Philippines as the workplace. Somehow there
will be a case that will be filed because management will
want to explore this just to delay certification election.
Thats one of the defenses of management. They put up
a legal problem and they lose in the med arbiter level,
they file an appeal directors level, they file an appeal
court of appeals, then after 10, 12, 15 years, they
postpone the election. You know very well management
profits if the regime is individual contract employment not
collective bargaining agreement. If you illegally dismiss
somebody, you make it lasts 15-20 years. What you do is
you just set aside an amount of money. That is his
wages. If you have a good money manager, money is
supposed to double every 5 years. At the end of 20
years, you just pay actually of the amount because if
money doubles every 5 years you just leave of that
amount at the end of 20 years.
So where to file? Think of the workplace. The
union at the workplace level and the one department of
labor regional office that has jurisdiction over that
workplace is the place where you file. Suppose the
workplace is governed by 2 regional offices. Why?
Because the workplace is so broad. You have a mine or
an agri business. Region 11 and region 10. Who has
jurisdiction? The regional office that first receives a
petition for certification election covering that workplace
gains jurisdiction to the exclusion of the other regional
office.
Section 3. When to File. A petition for certification
election may be filed anytime, except:
(a) When a fact of voluntary recognition has been
entered or a valid certification, consent or run-
off election has been conducted within the
bargaining unit within one (1) year prior to the
filing of the petition for certification election.
Where an appeal has been filed from the order
of the Med-Arbiter certifying the results of the
election, the running of the one year period shall
be suspended until the decision on the appeal
has become final and executory;
(b) When the duly certified union has commenced
and sustained negotiations in good faith with the
employer in accordance with Article 250 of the
Labor Code within the one year period referred
to in the immediately preceding paragraph;
(c) When a bargaining deadlock to which an
incumbent or certified bargaining agent is a
party had been submitted to conciliation or
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arbitration or had become the subject of a valid
notice of strike or lockout;
(d) When a collective bargaining agreement
between the employer and a duly recognized or
certified bargaining agent has been registered in
accordance with Article 231 of the Labor Code.
Where such collective bargaining agreement is
registered, the petition may be filed only with
sixty (60) days prior to its expiry.
Here we come to the principle of automatic certification
election. What is the policy of automatic certification
election? First let us examine the reason why there is
such a policy. There is such a policy because the
constitution is biased in favor of self-organization. If
there is a doubt, the law will conclude that the worker is
exercising his right to self-organization. Why is that the
idea? Because there is social justice. So what? Why does
the social justice dictate that the State act favorably to
self-organization? Because without social justice, labor
and management do not stand on equal footing.
Management is more powerful than labor. Why? Because
of the law. What does the law say? The beginning of
labor management contract is that management owns
the enterprise. So he has all the prerogatives. If he owns
the enterprise, what is the result of ownership in the Civil
Code? Is it only one right? Ownership is a bundle of
rights. What constitutes that bundle? Jus possidendi, jus
fruendi, jus otendi, jus disponendi, jus abutendi.
Memorize that because those are the basics of property.
He possesses it. He can exclude anybody from it. If he
does not like the worker, he could rightly just exclude the
worker. Go away, youre fired! But there is a law that
prohibits him from doing it. He can choose anyone to
come and join him because he owns the business. As
Justice Conrado Sanchez says, the worker by himself
standing alone does not stand on equal footing with
management. Management by itself is already organized.
Any enterprise worthy of its name is incorporated. Its
already a composite of many and the laborer is one sole
singular solitary. That is why the law is biased in favor of
self-organization because there is social justice. It
recognizes inequalities in our society and it tries to
remedy it by granting more in law to those who have less
in life.
Notion of automatic certification election.
There is that policy in the state. In unorganized
establishments, what is the meaning of unorganized
establishment? An establishment where there is no
exclusive bargaining agent. There maybe unions but they
have not gotten to the status of exclusive bargaining
agent. Another definition, it is an establishment that is
not governed by a collective bargaining agreement. But
the more accurate definition is one where there is no
exclusive bargaining agent. In an unorganized
establishment when a petition for certification election is
filed, automatically the med arbiter will order the holding
of a certification election. That is the policy of automatic
certification election applied to an unorganized
establishment. How about a organized establishment?
Does the policy of automatic certification election applies?
Yes it applies. But in a very narrow and limited sense. It
works this way. When a petition for certification election
is filed during the 60 day freedom period namely the last
60 days of the 5th year of a CBA, the med arbiter who
receives the petition has no discretion but to grant the
petition for certification election. That is the policy of
automatic certification election. And now that you know
that you put it into context under these 3 rules where
you know you cannot file a certification election. What
are these 3 rules? These 3 rules only 1 applies
unorganized establishment. All 3 applies to organized
establishment.
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1st rule. No petition for certification election can
be entertained within 1 year from the results of the
certification election. If the certification election in a
winner, a union winning, there is certified as an exclusive
bargaining agent and he is given 1 year to conclude CBA
by negotiation with management. 1 year no petition can
be entertained over the same bargaining unit. If the
petition for certification election ripened into an election
where no union won, the certification rules and holds,
there can be no petition entertained over that same
bargaining unit where there was an election for 1 year
from the results. What is the reason? To give
management rest because sometimes it can be hostile.
The workplace has to be given a time to heal to give
management a chance of achieving its legitimate
business end. What you have to remember is certification
election and the final results. Normally what
commentators will say is 1 year from certification
election. Its 1 year from the results. Sometimes the
results are contested and so there is still a case that runs
with the med arbiter and then goes all the way to the
secretary of labor then it goes to the CA then it goes to
the SC. Once the SC judges, then you count the 1 year
period. It is not from the time of certification election. It
is from the results of the certification election. So thats
the first rule. 1 year. The so-called certification year rule.
2nd rule. The deadlock bar rule. Let us say there
is certification election. Winner CBA. He begins
bargaining with management. He does not arrive at any
CBA. 1 year has already elapsed. Sige lang sila ug
negotiation. What happens? Once the year is about to
end from the results of the certification election, the
union becomes ******. Wala na silay protection.
Somebody else can file a petition and hold an election,
unyag mapildi xa? So normally, a union declares a
deadlock, files a notice of strike. The deadlock bar rule
says, where negotiations have ended in a deadlock, then,
for as long as the deadlock is not resolved, there can be
no petition for certification election. This rule applies only
to organized establishment. The 1st rule applies to
organized and unorganized.
3rd rule. Contract bar rule. No petition for certification
election can be entertained over a bargaining unit. That
is already covered by a CBA that is certified, that has
been registered. The certified CBA bars the petition for
certification election. What is the exception? 60 day
freedom period. Except when that CBA thats supposed to
bar is already on its terminal 60 days because that 60
day period is called freedom period.
Those are the 3 instances where no petition for
certification election may be filed. You have to know that
together with the policy of automatic certification
election.
If you are asked, when can you file a petition for
certification election? You have to discussed all those. Is
it correct to say, if it is an unorganized establishment,
you can file a petition for certification election at
anytime? It is not correct. You can file at anytime
provided that particular establishment does not fall within
the certification year rule. Thats the complete answer.
Section 4. Forms and contents of the petition. the
petition shall be in writing, verified under oath by the
president of petitioning labor organization. Where a
federation or national union files a petition in behalf of its
local or affiliate, the petition shall be verified under oath
by the president or duly authorize representative of the
federation or national union. In case the employer filed
the petition, the owner, president or any corporate
officer, who is authorized by the board of directors, shall
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verify the petition. The petition shall contain the
following:
(a) The name of petitioner, its address, and
affiliation if appropriate, the date and number of
the certificate of registration. If the petition is
filed by a federation or national union, the
national president or his/her duly authorized
representative shall certify under oath as to the
existence of its local/chapter in the
establishment and attaching thereto the charter
certificate or a certified true copy thereof. If the
petition is filed by a local/chapter it shall attach
its charter certificate or a certified true copy
thereof;
(b) The name, address and nature of employers
business;
(c) The description of the bargaining unit;
(d) The approximate number of employees in the
bargaining unit;
(e) The names and addresses of other legitimate
labor unions in the bargaining unit;
(f) A statement indicating any of the following
circumstances:
(1) That the bargaining unit is unorganized or
that there is no registered collective
bargaining agreement covering the
employees in the bargaining unit;
(2) If there exists a duly registered collective
bargaining agreement, that the petition is
filed within the sixty-day freedom period of
such agreement; or
(3) If another union had been previously
recognized voluntarily or certified in a valid
certification, consent or run-off election,
that the petition is filed outside the one-
year period from date of recording of such
voluntary recognition or conduct of
certification or run-off election and no
appeal is pending thereon.
(g) In an organized establishment, the signature of
at least twenty-five percent (25%) of all
employees in the appropriate bargaining unit
shall be attached to the petition at the time of
its filing; and
(h) Other relevant facts.
Letter c, the description of the bargaining unit, is very
important. So if you are asked, when the bargaining unit
first appears? It first appears tentatively in the petition
for certification election. In other words, the description
here is not necessary constituting the bargaining unit. It
may still be modified after hearing. But the initial
configuration of the bargaining unit is described here
because the bargaining unit is initially the suggestion of
the union but is finalized by the state. When does the
state finalized it? The moment the med arbiter issues an
order to hold a certification election, then it describes the
bargaining unit. That is covered by that order. Only the
workers within that bargaining unit can vote in a
certification election. Very important the description of
the bargaining unit. You know why? Because later on you
enter into a CBA, ang union gusto man jud mudaghan
ang union dues dba? Daghan muamot ana, daghan
kwarta ang union. Whose benefit is it if the bargaining
unit is enlarge? Its the union. Daghan man ang union
dues. So in the execution of the CBA, they want the
bargaining unit to be enlarged. And yet if it is larger than
the description of the bargaining unit that orders the
certification of the union that holds the election, that
enlargement is illegal. It embraces other workers who
have not yet exercised the right to self-organization. So
you pre-empt their exercised. Ikaw nay nagbuot. You
violate their right to self-organization. If you also will use
III Manresa 2014-2015
the bargaining unit smaller than its description in the
order certifying the union, what happens? You also
exclude others who have already exercised their right to
self-organization. You have to be faithful to the
configuration of the bargaining unit. What will you use to
prove the actual size, configuration of the bargaining
unit? You pull out the certification order. The order of the
med arbiter certifying the union as the exclusive
bargaining agent of this bargaining unit because they will
describe it. If it is the same as the description when you
file it, sa ato pa nidaog ka. Will management want a
smaller bargaining unit or a bigger bargaining unit?
Depende kung hain ang tao nmu. Kung ang mga taong
pabor nmu dli gusto sa union eh di pagamyon nmu ang
bargaining unit. Pero kung mas daghan ka ug tao na naa
sa gawas, eh di padak-an nmu ang bargaining unit aron
pag election daog ka. Thats the principle of
gerrymandering-the artificial contrivance of creating
voting districts even if they are not contiguous with each
other for political purposes.
Management always assumes that the
description that the union has in its petition is already the
winning description of the bargaining unit as the union
describes it. Do you think that is a safe assumption?
Union organizing has two basic phases. There is the
so called subrosas stage and the above ground
stage. (Dili ko sure sa akong nadungog pero murag mao
nana). The subrosa stage, tago ang union ana. Magsugod
na si organizer sa union, mangita silag tao, unsa man
ilang pangitaon? Kadtong problemado na worker.
Tawgon nila tong informal na lider sa sulod. Kadtong lider
sa kabuang. Dili tong inila na lider. Tawag na silag mga
tulo nila unya storyahon nila, panahon na na mag union
kita sa sulod kay kita mga dinaogdaog. Sunod semana
pag dala mu ug isa. Ang tulo nahimo nang unom. Sunod
semana pag dala mu ug isa. Ang unom nahimo nang
dose hangtod sa nahimo na silang 24. At a certain point,
when you have a critical mass, you surface. Open na ang
inyong kampanya. That is when the organizers realized
that they have gained the maximum membership from
covert operations. Pag surface nmu, open na ang
campaign, mag file naka sa imong petition for
certification. Ngano man? If the employer stops you, he
becomes guilty of unfair labor practice. It becomes an
added issue and it becomes an emotional issue.
If for some instance, the one who prepared the
petition forgot to include a description of the bargaining
unit, what is the effect? LVN vs Phil. Musicians says,
the effect in the petition cause by the absence of the
description of the bargaining unit is not fatal. But later on
there are decisions wherein the SC says, it is fatal. What
ruling is correct? The first ruling is correct because it is a
non-adversarial proceeding. If the med arbiter dismisses
your petition it is always without prejudice of the filing of
the petition.
AUGUST 7, 2014
8:00-9:00
ADCJ
Lets go back to certification of election
When you file a petition for certification election you are
asking the Bureau of Labor Relations [BLR] to conduct a
fact finding investigation. You are not filing an adversarial
case. So, if you fail as dictated by sec. 4 or rule 8 to
provide a description of the bargaining unit, it is not fatal.
You can still re-file it.
(d) the approximate number of employees in the
bargaining unit;
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(e) the names and addresses of other legitimate
labor unions in the bargaining unit;
(f) a statement indicating any of the following
circumstances:
1) that the bargaining unit is unorganized
or that there is no registered collective
bargaining agreement covering the
employees in the bargaining unit;
when do you do that? Say that there is no CBA
covering the employees in the bargaining unit?
When there is a certified exclusive bargaining
agent and 1 year certification rule has lapsed
and there is no deadlock.
2) if there exists a duly registered
collective bargaining agreement, that the
petition is filed within the sixty-day
freedom period of such agreement; or
In other words, you are already answering the 3
rules that prohibit the filing of the petition for
certification election. You are now answering the
contract bar rule, certification year rule and
dead lock bar rule
3) if another union had been previously
recognized voluntarily or certified in a
valid certification, consent or run-off
election, that the petition is filed outside
the one-year period from entry of
voluntary recognition or conduct of
certification or run-off election and no
appeal is pending thereon.
(g) in an organized establishment, the signature of
at least twenty-five percent (25%) of all
employees in the appropriate bargaining unit shall
be attached to the petition at the time of its filing;
and
What is the effect organized establishment? That means
this is 60-day freedom period or outside the certification
period rule, you file a petition for certification election
and then you attach to it the support of 25% of the
bargaining unit. If there are 100 in the bargaining unit,
25 signed in support of the petition. What is the effect?
The effect is the med-arbiter has no discretion but to
grant the certification election. The law concludes that
there is a substantial evidence of doubt as to whether or
not the incumbent, there must be an incumbent there,
the incumbent union still enjoys the support of the
majority of the bargaining unit. That is to be verified now
in an election. The med-arbiter is mandated to call a
certification election.
If the petition in an organized establishment lacks 25%
signature support of those covered in the bargaining unit,
supposed its only 20%, can the med arbiter order
certification election? YES, but this time its discretionary
on its part.
What do most med arbiters do? If the signature support
in an organized establishment petition for certification
election falls short of 25% what do they do? Most med
arbiters call for a certification election.
If the incumbent objects and says this is a useless
exercise!. All the med-arbiters will do is prove it that it
is useless! you dont have to worry if you have the
support of the majority because you will win in the
election. The incumbent will say ga-kalas kalas ra mo ug
panahon! whose time will be wasted? The Department
III Manresa 2014-2015
of Labor. Allow us to waste our time! At least we will
verify what the choice is of the bargaining unit.
SC say, again and again and again certification election
is the best means of ascertaining the will of the bargining
unit. To find out what the bargaining unit really feels,
conduct a certification elecion. It is a secret ballot
proceeding, each employee or worker who will write
down his choice without anybody watching him. In
secret, mupahungaw siya kung unsa man ang iyang
gibati sa kinahiladman sa iyang baga! Musuwat siya!
Unya imo nang sumadahon. Mailhan nimo kung unsa ang
gininhawa sa kinatibuk-an sa bargaining unit.
In the days of the old, management was allowed to file a
motion to dismiss. Now, it is not allowed. Managements
entry point in the proceeding is on the issue of
appropriate bargaining unit and normally that is the issue
in unorganized establishment. Once it is organized
already, the law assumes that the bargaining unit is
made appropriate. They no longer look into that
question.
Now when it is a virgin bargaining unit, wa pa mahilabti
na bargaining unit, file a petition for certification election.
That is the first issue. Is the bargaining unit described in
the petition appropriate ?
Now, what is the problem with that issue? That the law
does not say the most approporiate. The law only says
appropriate. Angayan ba ang bargaining unit na imung
gihulagway niining imong petition? Dili man muingon ang
balaod na labing angayan ba. Angayan man lang so there
is a spectrum of choices. There is a discretion on the part
of the med-arbiter.
Nag-t-shirt ka, nangutana ka angayan na ba ko? ana ko
HUBUA! HUBUA IMONG T-SHIRT! karon wa na jud kay
t-shirt, angayan na ba ko? [hubua ang imong pang-
ubos! LOL! :p]
There are degrees of angayan. Somehow your mind
has a grasp of degrees of beauty--- beautiful, more
beautiful, most beautiful. [storya2] Karl Graner story2
philosophy SUNGGO!
Section 5. Raffle of the case. - Upon the filing of
the petition, the Regional Director or any of
his/her
authorized representative shall allow the party
filing the petition to personally determine the
Med-Arbiter assigned to the case by means of a
raffle. Where there is only one Med-Arbiter in the
region, the raffleshall be dispensed with and the
petition shall be assigned to him/her.
So, kining raffle of the case, kahibawo man mo ning
raffle noh? Kaning sa Region11, duna bay raffle? Naa
unta pero karon, nanganak man ang usa ka med-arbiter.
Wa nay raffle kay usa na lang man ang nabilin. Siya na
ang mu-decide.
Section 6. Notice of preliminary conference. -
Immediately after the raffle of the case or receipt
of the petition, the same shall be transmitted to
the Med-Arbiter, who shall in the same instance
prepare and serve upon the petitioning party a
notice for preliminary conference. The first
preliminary conference shall be scheduled within
ten (10) WORKING days from THE MED-
ARBITERS receipt of the petition.
The service of the petition to the employer and
the notice for preliminary conference of the
petitioner and the incumbent bargaining agent, if
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 Lectures on Labor Relations
From the Lectures and Hand-Outs of Father Agustin L. Nazareno
any, shall be made within 3 working days from the
med-arbiters receipt of the petition.
The service shall be made by personal service,
registered mail, or courier service. A copy of the
petition of the notice of preliminary conference
shall be posted within the same 3-day period in at
least two conspicuous places in the establishment.
Sec. 6, thats the first thing that the med arbiter will issue
NOTICE OF PRELIMINARY CONFERENCE.
Posting2 gyapon. It is my submission that this posting
has been rendered obsolete by the present age internet.
Wa nay! Email na na! mahimo naman ng personal service
karon. In fact with the email age, mahimo nang mag-
election ta kada tuig. The technology is already there.
Storya2 [internet caf, unya wala kape!]
Now, there is the terminology here forced intervenor
sec. 7, who is a forced intervenor?
Section 7. Forced Intervenor. - The incumbent
bargaining agent shall automatically be one of the
choices in the certification election as forced
intervenor.
Kahibawo ka ang balota sa cetfication election is not the
same as your electoin ballot. Before the PCOS machine,
now, PCOS has followed the format of the certification
election. Shading2 man na sa certification election.
If it is unorganized, first time petition for certification
election, there is no forced intervenor, but there is always
a mandatory choice. Katapusan jud na. no union. [ refer
to the illustration drew by father]. Unya kini Union C,
Union B, Union A. what determines your order? As to
who filed first. This is the petitioner in an unorganized
establishment. This is the first intervenor. If you have a
union, you want to engage and be offered as a choice in
the certification election, you file a MOTION TO
INTERVENE. A motion of intervention in a petition for
certification election. Sunod gani ka sa petitioner, ikaw
dayon ang ikaduhang choice. Naa pa ganiy mu-file sunod
nimo, union C ka. You are the second intervenor. And
then the last but not least choice is no union. Organized
ni ha, organized [observation: feel nako namali lang si
father kay for unorganized man ni nga discussion pero i-
note lang basig ako ang mali]. Ikaw, if you are the one
voting , you puta check or a cross. And the canvassers
will take a look. That is your choice. THIS IS IN
UNORGANIZED ESTABLISHMENT [so, murag namali lang
jud si father ganiha].
If it is organized establishment [check the illustration
made by father], magsugod dire forced intervenor. Kinsa
man ni? Mao ning incumbent. Petitioner. Intervenor.
Another intervenor. Is there no union? NO MORE. Its
assumed. Unless 20% in the bargaining unit file a
PETITION FOR DE-CERTIFICATION ELECTION. If there is
that, then there will be no union. But in most elections, in
organized establishments, no union is no longer a
choice because it is assumed that the bargaining unit has
chosen to remain represented and it is just a choice of
who will represent them.
Now, kung ang fight ninyo sa union kanang mubo kaayo
ug education. Kanang mga tao sa arastre, kanang naa sa
pier, kanang mga construction workers, tagasagaran ana
no read-no write. Wala na sila kasabot ana.ang ila ra
masabtan anang naa sa balota ang kwadrado [square2].
Unya ingnon nimo, piniliay ni. Unsaon man nimo
pagpaila sa imong gipili? Kining upat ka kwadrado,
checkan na nimo o kurusan. Pilion nimo. Karon, hain man
III Manresa 2014-2015
ta ana? Ika-tulo ta! Dire ta! Dire! Mao ning atoa! Ayaw ug
kawala ha! Pagsulod nimo, pag-abre sa balota , ipha:
uno, dos, tres! Tres, ato na! kana ang butangi. Ayaw
kalimot ha.
Karon, aron magpabilin na sila, ugma walay trabaho kay
butuhanay man. Pauli na sila, lagyo kaayo na ug paulian.
Imo nang i-maintain. Unsaon nimo pagmaintain?
Paimnon nimo, gitara2, karaoke, all night. my way
pakantaha! Pulutan! Prmiro beer ba, unya ug di matarog
butangan nimo ug Tanduay. Sunod, kana nang ilimnon
nga nagdala ug bunal! Kulafu! Musilaab na!
Pagkaugma botohanay na. pukawon na nimo sila. wuie!
Mata na! botohanay na! tagaan na nimo ug lapis. I.D.
ipakita ang I.D. usahay maglalis pa sa I.D. ngano man?
Singko mil na ka empleyado unya nagtrabaho na sila.
Bungkal sa yuta. Magkalapok. Faded na kaayo. 6 years
ago pa gikwaan ug litrato. Nag-ngisi pa sila ato. Labi na
ug babae. Dako kaayo ug kausaban. Muage ka ug unom
ka tuig sa init. Layo na kaayo,. Sa litrato ga-ngisi ka pa,
ga-lipstick ka pa. unya karon, magduha2 na ang magtan-
aw sa id. ikaw ba jud ni? OBJECT! so pabilin ka. Lalis
sa mo didto. Ang uban pinalitay ug ID. Mao may buhaton
sa ubang union. Paliton ang ilang ID. Mangita sila ug
kaparehag itsura. Pabotohon.
Katulo ha! Ayaw kalimti katulo! pag-gawas,
gipangutana nimo o! unsa man? Unsa ang imong
gibuhat?. Ang tubag sa empleyado, pinahambog, huh!
Akong gisiguro jud! GI-CHECKAN NAKO TANANG BOXES
SA BALOTA! dili to counted! Giguba ang imong
instruction! Thats when you realizedwhen you instruct
these kind of people. You are lucky if 30% of your
instructions are followed. They all have the goodwill in
the world. But they just do not have the focus! mao
nang ang uban kay gusto jud madaog, pulihan na lang na
nila ang worker.
You think education is expensive? You try to be ignorant.
See how expensive it is. Ang sayop nimo balik2! Way
pagkahuman.
The law says, the med arboiter has to transmit the votes
in the language that can be understood by the worker.
Naa gyapoy masayop kay dili diay makabasa. It is already
translated into Ilocano. Ngano dili man makasabot?
Grade 2 ra man ko. Pangutan-on nimo makabasa ba
ka? o, makabasa ko uy! yes they can read, but it takes
a long time for them to read.
aaaaaaaaaddddaaaaaaahhhhaaaaam they are not
functionally literate! They do not read everyday. Dugay
kaayo makabasa. I tell you, suwayi ninyo makigdumog
dinha! Suwayi! Makaingon jud ka nga may na lang wa
ko sikmahi sa Diyos. Nakahuman diay ko. Naa koy
giskwelahan. Pagkadako aning grasyaha. Mamauli na ta.
August 13, 2014
BIA
BIA: Please refer to azucena for provisions Note,
all cases cited by father, gi-search lang nako.
Please verify if mao na sila
Description in the bargaining unit LVN says lack of
description of the bargaining unit does not make for a
fatal mistake because the certification election is not an
adversarial proceeding, it is fact-finding.
EN BANC
G.R. No. L-12582 January 28, 1961
LVN PICTURES, INC., petitioner-appellant, vs.
PHILIPPINE MUSICIANS Guild (FFW) and COURT OF
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INDUSTRIAL RELATIONS, respondents-appellees.
CONCEPCION, J.:
The absence of an express allegation that the members
of the Guild constitute a proper bargaining unit is fatal
proceeding, for the same is not a "litigation" in the sense
in which this term is commonly understood, but a mere
investigation of a non-adversary, fact finding character, in
which the investigating agency plays the part of a
disinterested investigator seeking merely to ascertain the
desires of employees as to the matter of their
representation. In connection therewith, the court enjoys
a wide discretion in determining the procedure necessary
to insure the fair and free choice of bargaining
representatives by employees.
Sec. 6. Notice of preliminary conference
Comments:
1st paragraph did not read
2nd paragraph only read it
3rd paragraph Whos responsibility is it to post? It does
not say but you can be sure that it is the ER. Why? Why
not the union, after all the ER is just a by-stander in the
certification election? In other words, ER is not a party to
the proceeding; and yet it is the duty of the ER to post
that is why he is given a copy. That is his right, under RA
9481, to receive a copy. Why is it his duty?
Because he owns the place, the wall in which it
is posted is his the private ER, not owned by
the union. So he determines what comes up on
the wall, and what should be there.
Now, here is the category that we are introduced to:
Sec. 7. Forced Intervenor
Comments:
So right away you know, this category has no place in an
unorganized establishment. There is no forced intervenor
in an unorganized establishment only in organized
establishment. All other parties who want to participate in
a certification election WON organized, after the petition
is filed, the only way they can participate is by filing a
motion for intervention [RULE VIII, SEC. 8].
Sec. 8 Motion for intervention
Comments:
1st paragraph not read
2nd paragraph read
Sec. 9. Preliminary Conference and
hearing
Comments:
(a) Bargaining unit to be represented that is one
of the issues to be settled in the preliminary
conference.
(b) The contending union.
(c) Possibility of consent election
(d) Existence of any of the bars - in other words,
those 3 rules when a petition for certification
election cannot be filed:
a. [father mentions sec. 3 bars, inaudible]
b. Contract bar rule is there an existing
CBA, that is what is to be determined.
III Manresa 2014-2015
c. How many contending unions are
there?
So somebody will appear there and say they are waiting
for the charter certificate, but they want to participate.
What will the med arbiter do? He makes an appearance
in the conference and the med arbiter says FILE A
MOTION FOR INTERVENTION. UNSAON NIYA PAGFILE
NA WALA PA SIYA NA UNION?! Diba? When do you
become a union?
When you have issued a charter certificate, you
have provisional personality at least for the filing
of a petition for certification election, or
the motion for intervention, you now have some
personality to engage in the certification
election.
Other than that, you only no personality yet. Only
provisional personality. So there is now a new ruling
where the SC says a charter certificate need not be
issued under oath. The federation can issue, murag
diploma ra na. The moment you have it, signed by the
officers of the union, you are already a local licensed to
participate in a certification election.
Then bargaining unit. How is a bargaining unit
determined?
The yardstick is appropriate for collective
bargaining is in the landmark case of:
SECOND DIVISION
G.R. No. 77395 November 29, 1988
BELYCA CORPORATION, petitioner, vs. DIR. PURA
FERRER CALLEJA, LABOR RELATIONS, MANILA,
MINISTRY OF LABOR AND EMPLOYMENT; MED-ARBITER,
RODOLFO S. MILADO, MINISTRY OF LABOR AND
EMPLOYMENT, REGIONAL OFFICE NO. 10 AND
ASSOCIATED LABOR UNION (ALU-TUCP), MINDANAO
REGIONAL OFFICE, CAGAYAN DE ORO CITY,
respondents.
PARAS, J.:
In the instant case, respondent ALU seeks direct
certification as the sole and exclusive bargaining agent of
all the rank-and-file workers of the livestock and agro
division of petitioner BELYCA Corporation (Rollo, p. 232),
engaged in piggery, poultry raising and the planting of
agricultural crops such as corn, coffee and various
vegetables (Rollo, p. 26). But petitioner contends that the
bargaining unit must include all the workers in its
integrated business concerns ranging from piggery,
poultry, to supermarts and cinemas so as not to split an
otherwise single bargaining unit into fragmented
bargaining units (Rollo, p. 435).<re||an1w>
The Labor Code does not specifically define what
constitutes an appropriate collective bargaining unit.
Article 256 of the Code provides:
Art. 256. Exclusive bargaining representative.The labor
organization designated or selected by the majority of the
employees in an appropriate collective bargaining unit
shall be exclusive representative of the employees in
such unit for the purpose of collective bargaining.
However, an individual employee or group of employee
shall have the right at any time to present grievances to
their employer.
According to Rothenberg, a proper bargaining unit maybe
said to be a group of employees of a given employer,
comprised of all or less than all of the entire body of
employees, which the collective interests of all the
employees, consistent with equity to the employer,
indicate to be best suited to serve reciprocal rights and
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From the Lectures and Hand-Outs of Father Agustin L. Nazareno
duties of the parties under the collective bargaining
provisions of the law (Rothenberg in Labor Relations, p.
482).
This Court has already taken cognizance of the crucial
issue of determining the proper constituency of a
collective bargaining unit.
Among the factors considered in Democratic Labor
Association v. Cebu Stevedoring Co. Inc. (103 Phil 1103
[1958]) are: "(1) will of employees (Glove Doctrine); (2)
affinity and unity of employee's interest, such as
substantial similarity of work and duties or similarity of
compensation and working conditions; (3) prior collective
bargaining history; and (4) employment status, such as
temporary, seasonal and probationary employees".
There are at least 4 criteria:
1. Collective bargaining history
2. Globe doctrine
3. Substantial mutual interest test
4. Employment status probationary
Collective bargaining:
What is that criteria? As far as the
appropriateness of the bargaining unit is
concerned, what was in the past is also true
today. If you are appropriate bargaining unit
yesterday, you must still be appropriate. Thats
why in organized establishments, where there is
an existing CBA, there is an incumbent exclusive
bargaining agent. When a union files a petition
for certification election, they no longer go thru
considerations of WON the union has money.
They assume that the bargaining unit now will
obtain still today, and for the next 5 years.
There is no more issue as to appropriateness of
the bargaining unit. But they will just ask next,
how many unions are running? And then set the
date for certification election.
Now, this also happens in a so called consent
election. Unorganized. File petition 1 union.
Preliminary conference, management
representative is asked with what he can say if
he agrees as to the bargaining unit as described
in the petition. The management says, we have
no problem, we agree, that is an appropriate
bargaining unit. Ah election dayon! Lets call for
an election. What if somebody says we are still
forming a union, we are still waiting for a
charter certificate. But the president of the
federation which we would like to be a local of is
still in Germany, attending a world labor
conference, so there is nobody to sign for the
charter local. Will you allow us to join the
certification election, pending the issuance of a
charter certificate? What do you think? Will the
med arbiter allow them to enter? *Stiftung
Foundation stories*
o Personality, as you very well know, is
jurisdictional. Your capacity to enter
into any legal ___ is premised on the
fact that you have personality. If you
dont, what are you? We cannot even
say that you dont have a right because
we dont even talk about you! Because
personality means that you are the
subject of rights and obligations. Wa ka
diha! JURISDICTIONAL.
o The law might be liberal in that there is
no specific form required in the
issuance of a charter certificate, but
that is always required by law before
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you can have any semblance of a right
or obligation.
So bargaining history is more or less destiny.
What are the exceptions to this rule?
SECOND DIVISION
[G.R. No. 79526 : December 21, 1990.]
192 SCRA 598
NATIONAL ASSOCIATION OF FREE TRADE UNIONS
(NAFTU), Petitioner, vs. MAINIT LUMBER DEVELOPMENT
COMPANY WORKERS UNION-UNITED LUMBER AND
GENERAL WORKERS OF THE PHILIPPINES.
(MALDECOWU-ULGWP), Respondents.
PARAS, J.:
Moreover, while the existence of a bargaining history is a
factor that may be reckoned with in determining the
appropriate bargaining unit, the same is not decisive or
conclusive. Other factors must be considered. The test of
grouping is community or mutuality of interests. This is
so because "the basic test of an asserted bargaining
unit's acceptability is whether or not it is fundamentally
the combination which will best assure to all employees
the exercise of their collective bargaining rights."
(Democratic Labor Association v. Cebu Stevedoring
Company, Inc., et al., 103 Phil. 1103 [1958]).
Certainly, there is a mutuality of interest among the
employees of the Sawmill Division and the Logging
Division. Their functions mesh with one another. One
group needs the other in the same way that the company
needs them both. There may be difference as to the
nature of their individual assignments but the distinctions
are not enough to warrant the formation of a separate
bargaining unit.
Secondly, the issue had been raised earlier by petitioner.
The respondent Bureau of Labor Relations had already
ruled on the same in its decision dated April 28, 1986
affirming the Med-Arbiter's Order dated April 11, 1985
which granted the petition for Certification Election.
NAFTU did not elevate the April 28, 1986 decision to this
Court. On the contrary, it participated in the questioned
election and later it did not raise the issue in its election
protest (Rollo, p. 210). Hence, the principle of res
judicata applies. It was settled as early as 1956 that "the
rule which forbids the reopening of a matter once
judicially determined by competent authority applies as
well to the judicial and quasi-judicial acts of public,
executive or administrative officers and boards acting
within their jurisdiction as to the judgments of courts
having general judicial powers . . ." (B.F. Goodrich
Philippines, Inc. v. Workmen's Compensation Commission
and Leandro M. Castro, 159 SCRA 355 [1988]).
Comments: Basically this is a story of our lumber
industry. Mainit lumber used to have 2 bargaining units,
the lumber mill *stories on lumber process* (so this is 1)
and katong mga tua sa lumber concession namutol sa
kahoy, land scaler, mga helper, driver, another
bargaining unit. So what happened? Nahurot naman ang
mga logs. Wala na may mga logs didto. *Indonesia
logging stories* So the petitioner moved to reduce the
bargaining unit from 2 to just 1 because of the much
reduced number of lumber operations EEs. Now, of
course the company opposed it. Why? To postpone,
padugayon niya. Hangtod madugay na, abot 10 years, eh
di mao lang gihapon na nga CBA nabilin, dako ug
savings. Nadugay. That is the technique, delay delay
delay. you are not taught that in lawschool *legal
ethics recital*
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 Lectures on Labor Relations
From the Lectures and Hand-Outs of Father Agustin L. Nazareno
Father confesses he did that, for the sake of a higher
law. *stories* What put an end to the delay? The
death of the named witness. Heart attack man namatay,
ah pagbuot na sa Ginoo. *stories continue*
In labor, favourite trick of ERs is delay. Klaro na kaayo,
oppose. That is why in the new law, right before the new
law, the ER is not a party. He cant even file a motion to
dismiss the petition. He can only file a manifestation.
Calls Mr. Solano[pero si Mr. Solana ginatanaw], what is
the difference between manifestation and a motion?
Motion Manifestation
It is a pleading asking for Not asking of an order, it
an order which is not just proffers to the court a
contained in the case or certain piece of
decision on the merits, so information; it does not ask
it requires a special for an order
pleading
*3rd year na daw ta, sakpan na daw dapat nato na sa
remedial law *
Mainit lumber, what does the court say?
The court says, normally history is constitutive
of the appropriateness of the bargaining unit
BUT WHERE THERE IS AN INTERVENING
SUBSTANTIAL CAUSE to change radically, then
the court will not insist on the historical
configuration of the bargaining unit. In other
words, it is NECESSITY.
Unsaon man nimo pagkahibalo sa collective
bargaining na wala namay tao sa logging?!
Bisag muorder pa ka na naay 2 kabuok na
bargaining unit, kani (1 bargaining unit) ang
naay tao, kani (the other unit) mga anino nalang
man na. mga wala naman na diha. So therefore,
you have to change.
That is the same as:
SECOND DIVISION
G.R. No. 100485 September 21, 1994
SAN MIGUEL CORPORATION, petitioner, vs. THE
HONORABLE BIENVENIDO E. LAGUESMA and NORTH
LUZON MAGNOLIA SALES LABOR UNION-INDEPENDENT,
respondents.
PUNO, J.:
A bargaining unit is a "group of employees of a given
employer, comprised of all or less than all of the entire
body of employees, consistent with equity to the
employer, indicate to be the best suited to serve the
reciprocal rights and duties of the parties under the
collective bargaining provisions of the law." 5
The fundamental factors in determining the appropriate
collective bargaining unit are: (1) the will of the
employees (Globe Doctrine); 6 (2) affinity and unity of
the employees' interest, such as substantial similarity of
work and duties, or similarity of compensation and
working conditions (Substantial Mutual Interests Rule);
(3) prior collective bargaining history; and (4) similarity of
employment status. 7
Contrary to petitioner's assertion, this Court has
categorically ruled that the existence of a prior collective
bargaining history is neither decisive nor conclusive in the
determination of what constitutes an appropriate
bargaining unit. 8
Indeed, the test of grouping is mutuality or commonality
of interests. The employees sought to be represented by
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the collective bargaining agent must have substantial
mutual interests in terms of employment and working
conditions as evinced by the type of work they perform.
In the case at bench, respondent union sought to
represent the sales personnel in the various Magnolia
sales offices in northern Luzon. There is similarity of
employment status for only the regular sales personnel in
the north Luzon area are covered. They have the same
duties and responsibilities and substantially similar
compensation and working conditions. The commonality
of interest among he sales personnel in the north Luzon
sales area cannot be gainsaid. In fact, in the certification
election held on November 24, 1990, the employees
concerned accepted respondent union as their exclusive
bargaining agent. Clearly, they have expressed their
desire to be one.
Petitioner cannot insist that each of the sales office of
Magnolia should constitute only one bargaining unit.
What greatly militates against this position is the meager
number of sales personnel in each of the Magnolia sales
office in northern Luzon. Even the bargaining unit sought
to be represented by respondent union in the entire north
Luzon sales area consists only of approximately fifty-five
(55) employees. 9 Surely, it would not be for the best
interest of these employees if they would further be
fractionalized. The adage "there is strength in number" is
the very rationale underlying the formation of a labor
union.
Comments: This is about the beer division. The beer
division used to be a very very lucrative source for the
unions dues, tagas kaayo ni silag mga sweldo. You did
not see SMC at its height, katong mga nagadeliver sa
beer, daghan kaayog mga truck. Ang mga salesmen,
mestiso. *Father describes workers and history of SMC
ownership*
There were separate geographical bargaining units.
What happens? Attrition. What is attrition? Those who
retire are not replaced until finally those who are left are
offered early retirement package which they cannot
refuse, nagawala na! Thats why they moved to
consolidate these 5 bargaining units to 1. The union
moved. Management again opposed. YOU READ THIS
CASE! because the principal lawyer here is ___
Nograles *stories*
If you read the case, Nograles argues that his assistant
lawyer did not have authority to make a concession. Can
you imagine that? Your lawyer-companion tells the SC
that your companion did not have authority to make
those concessions? And it is in the minutes because the
assistant lawyer already gave in and said okay we will
reduce the bargaining unit from 5 to 1. And they filed a
special motion because they said their lawyer who was a
member of the firm did not have authority to make that
concession. Nograles himself argued that. You read that
case!
Now it can also happen that 1 bargaining unit will be
made into several units? That is what happened in:
EN BANC
G.R. No. L-28223 August 30, 1968
MECHANICAL DEPARTMENT LABOR UNION SA
PHILIPPINE NATIONAL RAILWAYS, petitioner, vs. COURT
OF INDUSTRIAL RELATIONS and SAMAHAN NG MGA
MANGGAGAWA SA CALOOCAN SHOPS, respondents.
REYES, J.B.L., J.:
The trial judge then reviewed the collective bargaining
history of the Philippine National Railways, as follows:
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 Lectures on Labor Relations
From the Lectures and Hand-Outs of Father Agustin L. Nazareno
On several similar instances, this Court allowed
the establishment of new and separate
bargaining unit in one company, even in one
department of the same company, despite the
existence of the same facts and circumstances
as obtaining in the case at bar.
The history of the collective bargaining in the Manila
Railroad Company, now the Philippine National Railways
shows that originally, there was only one bargaining unit
in the company, represented by the Kapisanan Ng
Manggagawa sa MRR. Under Case No. 237-MC, this Court
ordered the establishment of two additional units, the
engine crew and the train crew to be represented by the
Union de Maquinistas, Fogoneros, Ayudante Y Motormen
and Union de Empleados de Trenes, respectively. Then in
1961, under Cases Nos. 491-MC, 494-MC and 507-MC
three new separate units were established, namely, the
yard crew unit, station employees unit and engineering
department employees unit, respectively, after the
employees concerned voted in a plebiscite conducted by
the court for the separation from existing bargaining
units in the company. Then again, under Case No. 763-
MC, a new unit, composed of the Mechanical Department
employees, was established to be represented by the
Mechanical Department Labor Union. Incidentally, the
first attempt of the employees of the Mechanical
Department to be separated as a unit was dismissed by
this Court of Case No. 488-MC.
In the case of the yard crew, station employees and the
Engineering Department employees, the Supreme Court
sustained the order of this Court in giving the employees
concerned the right to vote and decide whether or not
they desire to be separate units (See G.R. Nos. L-16292-
94, L-16309 and L-16317-18, November, 1965).
In view of its findings and the history of "union
representation" in the railway company, indicating that
bargaining units had been formed through separation of
new units from existing ones whenever plebiscites had
shown the workers' desire to have their own
representatives, and relying on the "Globe doctrine"
(Globe Machine & Stamping Co., 3 NLRB 294) applied in
Democratic Labor Union vs. Cebu Stevedoring Co., L-
10321, 28 February 1958, Judge Martinez held that the
employees in the Caloocan Shops should be given a
chance to vote on whether their group should be
separated from that represented by the Mechanical
Department Labor Union, and ordered a plebiscite held
for the purpose. The ruling was sustained by the Court en
banc; wherefore, the Mechanical Department Labor
Union appealed to this Court questioning the applicability
under the circumstances of the "Globe doctrine" of
considering the will of the employees in determining what
union should represent them.
Technically, this appeal is premature, since the result of
the ordered plebiscite among the workers of the
Caloocan shops may be adverse to the formation of a
separate unit, in which event, as stated in the appealed
order, all questions raised in this case would be rendered
moot and academic. Apparently, however, the appellant
Mechanical Department Labor Union takes it for granted
that the plebiscite would favor separation.
We find no grave abuse of discretion in the issuance of
the ruling under appeal as would justify our interfering
with it. Republic Act No. 875 has primarily entrusted the
prosecution of its policies to the Court of Industrial
Relations, and, in view of its intimate knowledge
concerning the facts and circumstances surrounding the
cases brought before it, this Court has repeatedly upheld
the exercise of discretion of the Court of Industrial
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Relations in matters concerning the representation of
employee groups (Manila Paper Mills Employees &
Workers' Association vs. C.I.R. 104 Phil. 10; Benguet
Consolidated vs. Bobok Lumber Jack Association, 103
Phil. 1150).
Appellant contends that the application of the "Globe
doctrine" is not warranted because the workers of the
Caloocan shops do not require different skills from the
rest of the workers in the Mechanical Department of the
Railway Company. This question is primarily one of facts.
The Industrial Court has found that there is a basic
difference, in that those in the Caloocan shops not only
have a community of interest and working conditions but
perform major repairs of railway rolling stock, using
heavy equipment and machineries found in said shops,
while the others only perform minor repairs. It is easy to
understand, therefore, that the workers in the Caloocan
shops require special skill in the use of heavy equipment
and machinery sufficient to set them apart from the rest
of the workers. In addition, the record shows that the
collective bargaining agreements negotiated by the
appellant union have been in existence for more than two
(2) years; hence, such agreements can not constitute a
bar to the determination, by proper elections, of a new
bargaining representative (PLDT Employees' Union vs.
Philippine Long Distance Telephone Co., 51 Off. Gaz.,
4519).
As to the charge that some of the members of the
appellee, "Samahan Ng Manggagawa", are actually
supervisors, it appears that the question of the status of
such members is still pending final decision; hence, it
would not constitute a legal obstacle to the holding of the
plebiscite. At any rate, the appellant may later question
whether the votes of those ultimately declared to be
supervisors should be counted.
Whether or not the agreement negotiated by the
appellant union with the employer, during the pendency
of the original petition in the Court of Industrial Relations,
should be considered valid and binding on the workers of
the Caloocan shops is a question that should be first
passed upon by the Industrial Court.
Comments: This case shows you that it is the civilist who
understood the Globe doctrine, all the others they do not
understand! Because the next criteria, the Globe doctrine,
many commentators say that the criteria for the
determination of the appropriateness of the bargaining
unit if you use the Globe doctrine, is the will of the
majority of the workers. Padaghanay ba. Whereas, JBL
Reyes, following the Globe case, an NLRB case, not a US
case, decided by the NLRB of the US, became a guiding
doctrine both in the US and other jurisdictions. That
decision says you hold a referendum not only of the
proposed bargaining unit but all those that will be ___.
You see, it was the case of a generalised bargaining unit,
there were many kinds of workers. Then the mechanics
grew in number they were close to of the general
bargaining unit and they wanted to split. They say that
they have their own interest they wanted to protect. That
is when the NLRB said a referendum should be help if the
interest of all will be served equally if you retain the same
bargaining unit who is splitting up, then it could be that
the majority of the bigger bargaining unit that will
determine the appropriateness. [inaudible]
Please take note that this referendum can be understood
to be a choice of the workers and yet it is not a part of a
certification election. Certification election, you hold as to
what will be the result. As to referendum, you will hold
what will be the regime in order to comply with the
appropriate bargaining unit. WON 2, or just 1. Wala pa ka
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 Lectures on Labor Relations
From the Lectures and Hand-Outs of Father Agustin L. Nazareno
nakapili sa imong representative, you are still choosing
the appropriateness of the bargaining unit.
The appropriate case to read there is:
SECOND DIVISION
G.R. No. L-41106 September 22, 1977
LITEX EMPLOYEES ASSOCIATION, petitioner, vs.
GEORGE A. EDUVALA, in his capacity as Officer-in-
Charge, BUREAU OF LABOR RELATIONS Departmentof
Labor and FEDERATION OF FREE WORKERS (F.F.W.),
respondents.
FERNANDO, J.:
1. Article 226 of the New Labor Code cannot be misread
to signify that the authority conferred on the Secretary of
labor and the officials of the Department is limited in
character. On the contrary, even a cursory reading
thereof readily yields the conclusion that in the interest of
industrial peace and for the promotion of the salutary
constitutional objectives of social justice and protection to
labor, the competence of the governmental entrusted
with supervision over disputes involving employers and
employees as well as "inter-union and intra-union
conflicts," is broad and expensive. Thereby its purpose
becomes crystal-clear. As is quite readily discernible
where it concerns the promotion of social and economy
rights, the active participation in the implementation of
the codal objective is entrusted to the executive
department. There is no support for any allegation of
jurisdictional infirmity, considering that the language
employed is well-nigh inclusive with the stress on its "and
exclusive authority to act." If it were otherwise, its policy
might be rendered futile. That is to run counter to a basic
postulate in the canons of statutory interpretation.
Learned Hand referred to it as the proliferation of
purpose. As was emphatecally asserted by Justice
Frankfurter: "The generating consideration is that
legislation is more than composition. It is an active
instrument of government which, for purposes of
interpretation, means that laws have ends to be
achieved. It is in this connection that Holmes said, 'words
are flexible.' Again it was Holmes, the last judge to give
quarter to loose thinking or vague yearning, who said
that 'the general purpose is a more is a more important
aid to the meaning than any rule which grammar or
formal logic may lay down.' And it was Holmes who
chided courts for being apt to err by sticking too closely
to the words of a law when those words import a policy
that goes beyond them." 3 What is intended by the
framers of code or statute is not to be frustrated. Even
on the assumption that by some strained or literal
reading of the employed, a doubt can be raised as to its
scope, the 'immitation should not be at war with the end
sought to be attained. It cannot be denied that if through
an ingenious argumentation, limits may be set on a
statutory power which should not be there, there would
be a failure to effectuate the statutory purpose and
policy. That kind of approach in statutory construction
has never recommended itself. 4
2. Nor has petitioner made out a case of grave abuse of
since the matter involved is a dispute as to whether or
not the members of petitioner labor union had decided,
contrary to the wishes of its president, to join respondent
Federation. What better way could there be of
ascertaining the truth there than to hold the referendum
election. The guarantee of fairness as to whether there is
accuracy depends on the impartiality and neutrality of the
Bureau of Labor Relations. There is nothing in petitioner's
submission to indicate that such would not be the case.
Under such circumstances then, petitioner labor union
could not be held to allege that there was an abuse,
much less a grave abuse, of the discretionary authority
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vested in such office. It suffices to take note of how often
this Court, after a careful consideration of the issue
involved, had rejected such a contention in certification
cases, analogous, if not similar in character. Invariably,
the imputation that the holding of an election for the
purpose of determining with exactitude the wishes of the
employees concerned as amounting to arbitrary exercise
of a power had been rejected. 5
August 14, 2014
5:00-6:00
Kem
THE PRELIMINARY CONFERENCE
Essential to the preliminary conference is the
determination of whether or not the bargaining unit is
appropriate. Now that is a very important question if the
bargaining unit that we are talking about is not
organized- unorganized establishment. That is why
section 9 of Rule 8, Book V of the Rules to implement the
Labor Code. It is no. 1. Letter (a):
xxx
Section 9. Preliminary Conference; Hearing.-
The Med-Arbiter shall conduct a preliminary conference
and hearing within ten (10) days from receipt of the
petition to determine the following:
(a) The bargaining unit to be represented;
(b) Contending labor unions;
(c) Possibility of a consent election;
(d) Existence of any of the bars to certification
election under section of this rule; and
(e) Such other matters as may be relevant for
the final disposition of the case.
xxx
The bargaining unit of the representative represented
you have to determine whether or not that is appropriate.
And then you take a look at the yardstick that is used to
measure appropriateness: first is collective bargaining
history and we saw the examples of Naftu vs. Mainit
Lumber and San Miguel Corporation vs. Laguesma.
THE GLOBE DOCTRINE
The second yardstick is the Globe Doctrine taken from
the US case Globe Machine and Stamping Company (3
NLRB 294, 1937). The best Filipino case applying this
doctrine as enunciated in the case is Mechanical Dept
Labor Union vs. CIR (24SCRA926). The case of a general
skilled union, a general skilled bargaining unit where a
certain craft unit has grown and they want to separate
and be a distinct bargaining unit. That is where JBL
Reyes says this is a case where you apply the Globe
Doctrine. How do you apply it?- by holding a referendum.
Now what is the issue in the referendum?-The issue is
whether there will be two or one bargaining unit- which is
means that after the referendum there will still be a
certification election as to who will represent either the
two bargaining units or just the one bargaining unit. So,
if there is no generalized bargaining unit and it does not
involve a growing number craft unit, the globe doctrine
has no application.
Suppose originally, there is just one bargaining unit: the
production regular daily paid workers together with the
monthly paid administrative workers. That is the original
bargaining unit. What is the common thread?- they are
regulars. One is paid on a daily basis the other is paid on
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 Lectures on Labor Relations
From the Lectures and Hand-Outs of Father Agustin L. Nazareno
a monthly basis. How many are there? There is just 35 of
them. There are about 6 monthly paid administrative
workers (white collar), the rest are production workers.
Now, Suppose they grow in size, the production workers
are now 65 the administrative monthly paid workers are
now 12. Are you going to apply the Globe Doctrine?
There is a basis for that issue because you are not talking
of a craft unit. But is more of a point are the two US
cases which I gave you: Special Health Care
Rehabilitation Center of Mobile and United Steel Workers
That the 2011 case and DPG Operations Incorporated
and Teemsters Local (2011). The Supreme Court now in
the United States says that the Globe Doctrine in health
industries is automatically applied if the seceding
employees of a generalized bargaining unit are licensed
professionals. Now, if you are in a hospital you have
many ranked and file workers involved, you have
dieticians, you have nurse assistants, you have
attendants, you have registered nurses etc. Now, once
you have a group of nurses that has increased so in
number that they now want to cede from the original
generalized bargaining unit. The decision of the court is
that they have to be given a chance to secede. Its
automatic. Why? Because they are professionals- they
follow a certain career path. That is an improvement of
the original Globe Doctrine. Now, the US Supreme Court
has not applied it in any other case only that. The lead
industry here are the public hospital employees. You
know in the United States the union movement has
shifted, there are now more unionized work places in the
government sector that in the private sector. Why?
Because the unions have found it more lucrative to invest
in organizing in the public sector that in the private
sector. In the private sector, the employers since it is
there money that will be lost- they fight the unions. In
the public sector since those who are acting for the
employer are not permanent especially if you are city
mayor or governor- you just want to be voted re-elected.
You can readily give in to the demands of the union. You
do not win a fight as hard as you do in the private sector.
Now, health industry is very sensitive. The application
here with respect to nurses has also been necessitated
because of a new law requiring a certain maximum ratio
between patient and nurses. Because there is this law a
hospital cannot accept more patients than what the law
requires. That is also another factor which drove the
Supreme Court into that ruling namely- when a certain
craft employees are professionals, they are licensed and
they want to separate and they have a substantial
number that could constitute an appropriate bargaining
unit, even if the larger bargaining unit opposes, they
should be allowed to secede and form their own
bargaining unit.
MUTUALITY OF INTEREST
Alright, the third measure in the determination of an
appropriate bargaining unit is the existence of substantial
mutual interest test- whether or not the employees in the
bargaining unit share substantial mutual interest. Now,
this was the ratio desidendi in the Belyca Corporation vs.
Pura Ferrer Calleja case (126 SCRA 184, 1988).
Remember, Belyca Corporation has three divisions as it
were, the first one outside the town Malaybalay was their
piggery together with their farm. The farm grew part of
the feeds that went into sustaining their piggery. I think
at that time they had 100 sows and they grew corn, they
grew camote and that was what they harvested and they
made that and they formulated their own feeds for their
pigs. Feeds as you know you have a body, whether it is
corn bran, rice bran or flour bran. When you mill wheat
bran, there is also tahop na mahibilin ba. That is the
body. Sa ato mao nang kan-on. The protein content you
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put there can either be fish meal or meat and for the
piglets you put skimmed milk. The big piggeries they
formulate their own feeds. The biggest feed mill in South
East Asia does not sell its feeds it just produces feeds to
feed its stock and that is in one island off the coast of
Singapore it is part of Indonesia. Theres a piggery there
that has two hundred thousand (200,000) sows
multiplied by ten (10) the standing herd in any given time
is two million (2,000,000). Where do you get enough
feeds to feed two million? First where do they get people
to take care of that since Indonesia is Muslim. All the
workers in the piggery which Lucio Tan imitated, because
Lucio Tan has one hundred thousand (100,000) sows.
They are not the ordinary Indonesians, they are the
Indonesians from Bali. Why? Because the Indonesians
from Bali are hindus. They are not Muslims. They love to
eat pork. Where do they get feeds? Because the owner of
that piggery is one of the biggest importers of wheat
because he owns the biggest factory of noodles. He
produces fourteen billion (14,000,000,000) packets of
noodles per year to feed the two hundred and forty
thousand (240,000,000) Indonesians who love to slurp
noodles. Because you mill wheat good for two hundred
and forty thousand people you have enough meat bran,
wheat bran, as your ready-made body for the feeds for
the pigs.
The ones who are organizing Belica were the agricultural
workers- the piggery workers, those who were doing the
cultivation of corn feeds and the camote feeds, ect. Now,
when the final petition, Belica opposed the petition saying
the correct configuration of the bargaining unit is not just
the agricultural department but it should include the
supermarket employees, which is one part of the city and
another part of the city where they had two movie
houses, two restaurants and a bowling alley and some-
the entertainment department.
Thats what Belica manifested before the labor arbiter.
The Labor arbiter ruled that the appropriate bargaining
unit is just the agricultural unit. Belica appealed. What is
the argument of Belica? -You are seriously
inconveniencing the employer. Why?-This department
forms a bargaining unit, we have to bargain with them.
Suppose the entertainment department forms a
bargaining unit, you have to negotiate with them?
Suppose, the supermarket forms a bargaining unit, you
have to negotiate with them? You will be multiplying
bargaining units. Too much burden of a burden on the
employer. That is the argument of Belica when it went to
the secretary of labor. At the time there was still no
appeal from the secretary of labor to the court of
appeals, you go directly to the Supreme Court. That is
when Belica, because it was shut down by the director of
the Bureau of Labor Relations where the ruling of the
Med- Arbiter was appealed went to the Supreme Court.
What did the Supreme Court say? Supreme Court says
there is no substantial community of interest between the
employees in the agricultural department and those in
the supermarket and those in the movie houses and
entertainment department. Why is there no community of
interest? Pareha man silag amo pareha man sila gadawat
ug sweldo.
Why cannot they bargain together? SC says first of all
there is no social congress between these employees. To
have commonality of interest there must be social
congress at least mag tagbo mo bah, mag storya mo,
mag hisguti mo. The agricultural employees were
prohibited from going to the main office on the second
floor of the supermarket. Their pay was brought to them
on site. They could not even go, you can understand
why. Would you allow people who have been working the
whole day in the piggery in their overalls to walk into an
office. Muagi ka sa supermarket unya musaka ka sa taas
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 Lectures on Labor Relations
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gikan ka sa piggery. Thats one way to drive away your
customers is it not. Piggeries have a peculiar smell. Some
say it is the smell of money. Some will say you can have
that smell. So, because they are prohibited there is no
social congress. How can they discover what is common
in there interest.
Then the SC says second, they are paid on a daily basis.
Whereas many of the workers in the supermarket and in
the entertainment departments were paid on a monthly
basis. Third, a good many of the agricultural employees
were seasonal workers. There were harvesters, there
were planters, there were cultivators. So, there are some
parts of the year that they were not called to work, there
were other parts of the year that they were made to
work and even do overtime. So, their interest as a class
of workers are distinct and different from the other
workers. Kung manlingkod man mo sa lamesa kay mag
bargain mo, daily paid ka, imong katupad monthly paid.
Unsa man na increase inyong pangayuon? Daily increase
or monthly? A monthly paid employee is paid the same
amount every month regardless of the actual number of
working days within the month. He does not care about a
daily increase. The daily wage earner does not care about
the monthly amount. He cares about the hourly rate, his
daily rate. So, if that is the case you are bargaining with
one. He will just play you against each other. You see the
difference? That is what the SC says- there must be a
commonality of interest in order to form a strong enough
bargaining unit.
EMPLOYMENT STATUS
Alright, and finally you have this last criteria which is
employment status. Are you seasonal, are you
probationary, are you regular? Now between a regular
and a probationary employee what is foremost in the
mind of the probationary?- do not look for a high salary,
just get inside there and become permanent. Get in! once
youre in and you are regular then you can ask for more.
The regular workers since they are already in, their main
interest is the economic increase in the workers. So both
workers do not have, on that score alone, communality in
interest. Muingon ra nang employer- permanentehun
nako ning tanan basta di na mo mangayo ung increase.
Sukol na tong mga probationary kay gusto ra man silag
musulod. Mingon sad ang regular- unfair, unfair kay nag
sakripisyo rami, pa increase ang among gusto. Pero
muingon ang employer- kamo probationary paman mo,
wa paman kay mahibaw-an, wa namo na i-increase.
Human magpa bilin diay nang probationary? Mag lalis na!
There is no clear path to even arriving at a decision
which the entire bargaining unit can agree on. That is
why employment status is also a measure of
appropriateness of a bargaining unit.
Alright, let us say that the bargaining unit has now been
fixed. Once it is fixed, the med arbiter will issue an order.
Remember before the Med-Arbiter can arrive at that
decision, he will ask for a position paper from amongst
them. Position paper as to why you think the bargaining
unit should be (inaudible). He will ask the union then he
will decide. How will this decision be formed? It will be in
the form of an order to hold a certification election. So,
you will say- whereas union x has filed a petition for
certification election; whereas the bargaining unit that
union x is asking is also the same configuration that
union y, union z, union p, is endorsing in its motions for
intervention. And then it discusses the arguments of
management. And then the med arbiter says- wherefore,
in view of the foregoing, a certification election is ordered
III Manresa 2014-2015
among the regular, rank and file, daily paid workers of
the production factory of XYZ corporation on, and it will
give the date, during office and working hours, to be
supervised by the Election Officer of the Regional Office
of the Department of Labor Number XI. And then that is
posted. Two conspicuous places, 5 days before the
election.
INCLUSION AND EXCLUSION PROCEEDINGS
And then what happens afterwards is the so called
inclusion and exclusion proceedings. What is that?-The
Med-Arbiter will now decide who are included in that
bargaining unit. Let us say that by tradition July 1 the
company releases its list of new regular employees that
will absorbed by the corporation from the probationary
employees that began in January 1. 6 months probation.
January 1 to june 30. July 1 the company issues but the
certification election is order to be held on June 20. The
union will argue- kanang gi recommend na to be
regularized should be allowed to vote already because for
all purposes they will be part of the bargaining unit.
Those that have been recommended. So there will be a
debate. Are they or are they not included? Will they be
allowed to vote? Now if you are the company what is
your stand? It depends. Kung imo nang mga tao sige pa
botoha.
If you are the union and they are not your constituents,
you do not have their allegiance, you will not want them
to vote. Let us say there are regular employees there
that have been recommended for supervisory positions
and they are already slated for training to go up to
manila. One week from July 1 they are suppose to fly to
Manila already for the first part of their supervisory
training. Question- are they still eligible to vote in this
certification election of the regular rank and file
employees. Ahhhh debate nasad. There are very simple
questions like the list contained. Muingon nang union kini
siya patay naman ni ngano naa paman ni sa listahan?
Then management said that we were given an order by
the med arbiter to produce the list one week before the
filing of the petition for certification election because
clearly that parole list is undisturbed. It was made not
under the consideration of the petition. There was no
petition yet, it was an objective list so we are putting it.
But in the meantime the guy died thats is not our fault.
Unya human patay naman na ngano gi apil man gihapon
na ninyo? Ang lista man ang gipangayo as of this date.
Now, that list together with an order to hold a
certification election has to be posted in two conspicuous
places. What is the purpose of the posting five days.
What is the purpose? so that all those employees will
be made aware of the election. If he believes that he
belongs to that bargaining unit but his name is not on the
list, he should raise an objection. apil man ko. I am a
regular worker. Regular rank and file ko. Driver man ko.
Kang kinsa man ka nag drive?- sa manager. Aaaah mao
nang wa ka gibutang sa lista kay manager man diay
imong gi drivan. Tuta ka man. Dili ka I-apil diha. Can he
object? Why am I excluded? The union objects. What is
the ground of the objection of the union?- confidential
employee. Is he a confidential employee from the
definition of the Rules to Implement the Labor Code? So
you can see the so many issues that will arise from the
so called inclusion or exclusion proceedings.
POLLING PLACES
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 Lectures on Labor Relations
From the Lectures and Hand-Outs of Father Agustin L. Nazareno
Now after that they will decide how many polling places
there will be. Kanang TADECO, abot nag tres mil ka
trabahante, lima ka farms. Five farms named after the
five children of Antonio Floriendo. Unya nay head office.
Kanang head office at least duha ka buok polling places
ana. Ang mga kampo lagyo kaayo. Musakay gud ka anag
tricycle o di kaha habal-habal kung dili pag abot nimo
didto luya na kaayo ka. Election gani diha lupig pa nang
election sa gobyerno ana kay hakutay mga kandidato sa
tanang union. You have to decide how many polling
places. Each polling place there will be inspectors of the
petitioner, the forced intervenor and the other
intervenors. Kana sila linya na sila dira. And then if there
are issues that are involved, you must register your
objection. I bring to your attention Rule number IX-
conduct of certification election:
Section 12. Protest- when is a protest perfected, any
party in interest may file a protest based on the conduct
and mechanics of the election. Such protest shall be
recorded in the minutes of elections proceedings.
So you must go to the election officer who is the DOLE
representative. He writes the minutes and you must say-
I object to allowing these three people to vote, obviously
they are not the same people who are printed in their ID.
Kanang naa sa ilang ID dili na sila. Lahi na. gi palit nang
ilang ID. Objection jud ka ana. (talks about the condition
of the farmers ID as compared to ADDU ID being clean).
So the first requirement- it must be recorded in the
minutes. Second, the protesting party must formalize its
protest with the med arbiter with specific grounds,
arguments and evidence within five days after the close
of election proceedings. If not recorded in the minutes
and not formalized within the prescriptive period, the
protest shall be deemed dropped. Now, what do you
mean by election proceedings? Because it is (inaudible)
that you count 5 days and within that period you must
formalize it. Mag buhat kag position paper ana. What is
the close of election proceedings?- you have to go to
Rule 1, Section 1.
XXX
(p) Election proceedings refer to the period
during a certification election, consent or run-off election
and election of union officers, starting from the opening
to the closing of the polls , including the counting,
tabulation and consolidation of votes, but excluding the
period for the final determination of the challenged votes
and the canvass thereof
xxx
So, election proceedings in certification election is not the
same as election proceedings under the Omnibus Election
Code. Because election proceedings in the election code
includes proclamation. If you protest after proclamation.
What is that now? In the omnibus election code? That is
already an election contest. So there is a difference. All
others probably the same. But the definition of election
proceedings here does not include proclamation. So,
panghipos na dira kay manga uli na. wa may
proclamation pa diha bisag na canvass na nila tanan. Wa
pa man na. Panguli nila wa paman na. it is by an order of
the med arbiter that somebody is proclaimed. There
being a certification election that was just concluded,
such and such number cast their ballots, these number
were stray, these ones not invalidated. Majority of the
valid votes were cast in favor of so and so. In view of the
foregoing such and such union is hereby declared as the
certified exclusive bargaining agent of the regular rank
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and file daily paid production workers of XYZ Corporation.
That is how the results of the election is made- by an
order of the Med-Arbiter. Now, that order is considered a
final order. You cannot appeal that. You can appeal so if
you appeal an order declaring a union certified collective
bargaining agent, his certification year that one year
period given to him by law within which conclude a
bargaining agreement with the employer and all other
petitions from third parties are disallowed that is
postponed until the decision of the med arbiter is
rendered final and executory. So, read the implementing
rules. We cannot read everything, take it up in class. You
see the mechanics there of a certification election.
Mechanics of a certification election. Nay certification
election karon na mu daugay na pero napildi tungod sa
tactic. Kana bang hinangyu ay ba. ayaw sa intawon
ninyo na palabi-i mig pildi, lamang man gud kaayo mo.
Tagaan tamog pang picnic oh. Adto ba mog samal. Daog
na bitaw mo. Daog na bitaw. Puros man mo bul anon
kadaghanan ninyo bul anon so pildi jud mi taga talete
lang man mi. di jud mi kadaog. Pag picnic nalang mo.
Mu tuo gani sila mu-picnic gani. Goodbye! taob.
Kwartahan nila ang boto. Double man na kung dili gani
mapa boto man na siya. Doble man na. kuhaan gani ilang
boto human musaka imo. Wa moy kalibutan anang
kinamangay sa gabii sa election. Mag ronda na silag
balay nay lista. sila marikris kauban ni sila, delikado ta
diri. Asa nimo iconcentrate imong mao na! pero wa na
dinhi(labor code). Kahibalo ka tanan dire pero pildihon
gihapon ka kay maayo kaayo mangamag tao. Pag picnic
nalang mo.
AUGUST 14, 2014
8:00-9:00
ADCJ
Lets take up some recent cases which reflect the rules
followed by the SC when they exclude certain people
from the bargaining unit.
SMC Supervisors & Exempt Employees Union vs.
Laguesma
G.R. No. 110399
August 15, 1997
ROMERO, J.
These people were not included in the regular bargaining
unit. This was the result of the formation of the new
corporation SAN MIGUEL FOODS INC. They amalgamated
several divisions and they formed one corporation. SC
says, that even if these personnel handle confidential
data regarding technical and internal business operations,
they are not to be considered confidential employees
because the confidential information that they are into
are not labor relations related so they are allowed to
form their own bargaining unit and from there, their
union can be formed and they can undergo certification
election.
Now, again, there is this point which was raised by
Belyca Corporation vs. Calleja that it was not
possible for social congress because the agricultural
department was separated locationally from the
supermarket and the entertainment department so you
would think that it is impossible workplaces that are
separate physically and they still form in one bargaining
unit, but in this case of SMC Supervisors & Exempt
Employees Union vs. Laguesma, the SC says you
have the san miguel foods plants: SAN MIGUEL CORP-
MAGNOLIA POULTRY PLANTS in Cabuyao, Laguna and
then you have San Fernando Pampanga, and then you
have Otis, having community or mutuality of interests
they constitute a single bargaining unit. Several plants
ha, raising chicken.
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Chicken sexer, chicks are sold actually on the 2nd or 3rd
day, but they have to classify. Its only the males that are
sold. There are chicken sexers to identify the sex of the
chicks. They do it by hundreds. Its a waste of feeds
feeding females; they do not grow as big. So only males
are sold. Kana sila certified na sila na makaila ka sa sex
by hundreds. The best chicken sexers are Koreans!
It was immaterial that the 3 plants have different
locations as they did not impede the operations of a
single bargaining representative.
Why is it that you can form a single collective bargaining
unit even if you are physically separated, but in Belyca
you cannot? Remember in Belyca, there is no social
congress. Why is it now that they are allowed? Thats the
same thing in San Miguel Foods vs. SMC Supervisors
[2011]. Separate plants. Why? Because now there is an
extinct [dili ko sure sa word na ako nadunggan]. You can
have social congress even if you are separated. You can
now have communication. You can have consultation
through communications. Physical, locational separation
is no longer a bar to social congress. Employees can
exchange ideas and come up with a common stand.
Here is an issue in International School Alliance
Educators vs. Quisumbing [2000]. This is the case of
teachers teaching the same students and yet you have
teachers that are local and then you have teachers who
are foreign hires. They are hired from the US. They are
brought to the Philippines to teach in the national
highschool. Now, the SC says it is justified that the
foreign hires form a separate bargaining unit. First of all,
they are foreign workers and they have the right to self
organization. what is required? Reciprocity. You must be
allowed if you are of the same status of the working visa
non-resident in US they must also allowed these workers
to exercise the right to self-organization. These teachers
they are allowed. What makes them different? The
foreign hires enjoyed certain benefits not granted to the
local hires. These benefits such as housing,
transportation, shipping cost, taxes, travel allowance are
reasonably related to their status as foreign hires and
justified the exclusion of the former from the latter. So,
because they need to bargain with respect to these items
only proper to them because they are foreign hires, they
should be separated from the local hires. You know there
are 2-3 cases related to international schools and foreign
hires. Why? The wife of Pres. Ramos. She was one of the
academic assistant principal from the international
school. And so, there is so much controversy. Now that
she is not there, there are no more cases. It was Mrs.
Ramos.
Now, San Miguel Foods Inc vs. SMC Supervisors.
You have the issue of 3 kinds of plants still dealing with
chicken. The 2 plants are dealing with live chicken and
the other plant is dealing with dressed chicken. Sininaan
diay nang manok?! LOL! Dressed chicken means
slaughter house na sa manok. They get chicken from
their contract growers and process them and they brand
them Magnolia Chiken [storya2 re: history of Magnolia
and Nestle Ice Cream].
Now, here the issues is: can you put together people
working with live chicken and those working with dress
chicken even when they are separate? So it is not just
the issue of being separated locationally, its also about
what you are actually doing. SC says Although they
seem separate and distinct from each other, the specific
tasks of each division are actually interrelated and there
exist mutuality of interest which warrants permission of a
single bargaining unit.
III Manresa 2014-2015
Then, heres the issue on confidential employees. Now,
those who have knowledge in the accounting
department, accounting personnel should be excluded
from the bargaining unit as to their access of the
confidential information may become the source of undue
advantage. Example: cost accountant; he knows the cost.
So he knows the margins. Kabalo siya sa ginansya. That
is labor relations related.
But how about the payroll master kanang naay lista sa
personnel and then the amount of take home pay, siya
man ang mu-hand-out ana. Or he gives or compiles the
list of payroll and sends it to the bank so that the bank
will credit the accounts of these payees/ employees. Is
the paymaster a confidential employee? According to the
ruling However, such fact does not apply to the position
of Payroll Master and the whole gamut of employees
who, as perceived by petitioner, has access to salary and
compensation data. The CA correctly held that the
position of Payroll Master does not involve dealing with
confidential labor relations information in the course of
the performance of his functions. Since the nature of his
work does not pertain to company rules and regulations
and confidential labor relations, it follows that he cannot
be excluded from the subject bargaining unit. why?
Paymaster low level employees man na. He is not a
confidential payroll. Slow learner mostly. These are
minium wage earners. So it is not something confidential.
Kanang gitagaan nimo ug sweldo sa sobre, ngano sobre
man na? ngano dili through ATM? kay casual, seasonal,
after 6 months, when the peak is reached, they are no
more needed anymore. Kanus-a man mudaghan ang
kunsumo sa manok? Pasko, new year. Daghan ka ug
ihawon niana. Sometimes, its localized. There are certin
places that have the season in a year that the
consumption is high and so the supply must be higher
which needs additional person. These are those who
pertain to a minimum wage and their salary data is not
considered confidential because they are so many of
them. Not ATM because that is too cumbersome to ope
ATM accounts for them.
Can you tell the difference with your ATM account and
you payroll ATM account? No maintaining balance for the
payroll ATM account because you are not the owner of
that account. And that is required by law. Where does
the law require that? Art. 127. Prohibition against
elimination or diminution of benefits. Nothing in
this Book shall be construed to eliminate or in any
way diminish supplements, or other employee
benefits being enjoyed at the time of
promulgation of this Code. If if the maintaining
balance is required then by that much your pay is
reduced. The maintaining balance is maintained by the
company. Bantayi na!
Again, they exclude 2 particular persons from the regular
rank and file bargaining unit: San Miguel Foods case:
human resource assistant and personnel assistant.
Human resource assistant because the scope of ones
work necessarily involves labor relationsrecruitment
and selection of employees; access to employees
personal files and compensation apckage and human
resource management. Personnel assistant, because ones
work as a P.A. includes the recording of minutes of
management during collective bargaining negotiations
and securing legal advice for labor issues from the
petitioners team of lawyers, and implementation of
company programs. Therefore, in the discharge of their
functions, both gain access to vital labor relations
information which outrightly disqualifies them from union
membership. So take note those particular personnel are
excluded from the bargaining unit.
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From the Lectures and Hand-Outs of Father Agustin L. Nazareno
Remember, pagkahuman sa issue sa order to hold
certification election, it is inclusion and exclusion
proceedings. Is this guy in or out? Because you are
talking about the list of positions. What do they occupy?
Are the positions that they occupy legal to the positions
allow them to be in the bargaining unit? Take note: it is
not the person that is disqualified, it is actually the
position. What you do in the position.
Can you exclude from the bargaining unit the fact that
the person there is the nephew of the general
managemer? How come? Mao na siyay espiya! Dili na
nato na siya patambungon sa meeting! Musulti man na
didto sa general managemer unsa ang atong gihisgutan.
We should exclude him! Can he be excluded? What is his
work? He is just a regular utility man. Dili na confidential
position. YOU CANOT EXCLUDE HIM! So, make sure you
know what is the basis. Because the basis is the position.
What is his duties and resposibilities. In other words, it is
the bargaining unit.
Alright, lets take a look at the KINDS OF CERTIFICATION
ELECTION
The proper definition of certification election, it is the fact
finding proceeding by which 2 facts are ascertained:
Whether or not the abrgaining
unit composed of positions
occupied by emploeyees
desire representation or not
and
If they do desire, who or what
union is their exclusive
bargaining representative
Those are the 2 issues that are determined by
certification election.
How about appropriateness of the bargaining unit? Those
are all subordinate issues. In fact, they become non-
issues, presumed to be non-issues, the moment there is
collective baragining history. So, that is cettification
election.
What is consent election? Consent election is a type of
certification election which does not rquire a hearing on
the appropriateness of the bagraining unit. It immediately
goes into the determination as to who will be the
exclusive bargaining representative. Why? Because all
parties that is the employer and the contending unions
are in agreement as to the appropriateness of the
bargaining unit and that agreement is adopted by the
State. remember that it is the State who certifies that is
why there is a need tfor the State to adopt it.
I will compare it with auditing. When a corportion wants
to tell its stories in a minimum fashion in a business
community, it tells you in numbers. Wa ganina numero
na, dili na respected in the business community. That is
in the same category as fictionHarry Potter na! so you
have to reduce it to numbers either your numbers tell
your story accurately or not. Now, who says that you are
telling accurately? It is the 3rd party that is certified to do
just that. To tell that this story is corret, after having
examined the books, the 3rd party will say it is accurate,
it is truthful and it is comprehensive and it is good as
story considering the generally accepted accounting
principles.
Now, so he certifies it. The Corporation Code provides
that if your assets are less than 50k, you do not need a
cpa because you cannot afford it anymore. So you do not
need. Who certifies it? It is sufficient that the chief
III Manresa 2014-2015
financial officer or the one acting in that capacity attests
under oath na mao ni ang tinuod. Singkwenta mil ra
among assets. Mao ni. That is enough and accepted by
the BIR.
Now, supposed you are a corporation you just bought
another corporation and you incorporated him right
away, but you paid 50% more than what is assets are
actually worth. Bayran nimo, sobra ang presyo, unya
gipakang nimo dira, unsa man nahitabo dinha? HANGIN
IMONG GIBAYRAN UG DOBLE unya imong gibutang dira.
Unya malipay ang business community na imo nang
gibuhat?! [yaw2]. Hangin ang imong gibayran. Unya
muingon ka kinsa man buang2 muhimo ana? Pagpalit
nimo sa corporation, wa na kay kompetensya ikaw na
lang. Are you not willing to pay 50% more of the certain
price? kung muundang na ang kompetisyon ikaw na lang
ang nahibilin.
Now, your next problem is that the BIR will not allow
that. Magpabilin sa imong libro sobra sa imong gibayad
hangin lang na imong nakuha unya pagtan-aw mudako
jud na imong assets kay sobra man ni. So, instead of
50M, 100M may gisuwod nimo. Hangin man na. BIR in
the Philippines, you are allowed to advertise goodwill. But
in Hong Kong and New York, you must record the
goodwill immediately. You must register that right away
as yours. That is when the certified independent external
auditor will say this statement is true and correct. It tells
you the truth. If loss money and that is approved by the
BIR.
If you are listed, it does not matter. Tanang tao makakita
ana. Ug dili sila mutuo na nakakuha ka ug advantage
which is not reducible by quantity, in numbers, bagsak
imong negosyo ana, pero kung nituo nimo, nibilib nimo,
taas imong presyo sa stock.
You see why certification is very important? In labor, if
you are certified, nobody else can bargain. Ikaw ra for 5
years. You are the only one who can bargain. Not even
the principals can bargain. Other unions watching the
design, they would like to bargain for you. Why? Because
there is 22k a month just union dues coming from you.
We would like to do the bargaining for you. Can you do
that? You cannot because the bargaining representative
is certified. The process by which he undergoes to that
certification is important because he is now the monopoly
for the next 5 years. That is important. Now, certification
bars all others but there are always exceptions:
1. Referendum [2 kinds]:
a. Refrendum as to whether or not the
general bargaining unit of generally
skilled workers will serve for general
skilled and the specific craft workers
that is one operator*.
That is one presented in
Mechanical Department
Labor Union vs. CIR; that
is not a true certification
election. That is a
preliminary issue.
b. Again, there is a referendum that can
also be conducted in order to
determine whether or not a local has
disaffiliated from the federation which
is the exclusive bargaining agent and
has alliance himself with a new
federation.
That is Litex vs. Eduvala.
That is not barred during
the 5-year period because
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 Lectures on Labor Relations
From the Lectures and Hand-Outs of Father Agustin L. Nazareno

the SC says time again that a referendum. Is it MFW or

the local is the real party in ULGWP? MFW is the
interest in collective incumbent, they want to
bargaining and the disaffiliate. Let us hold a
federation is just an agent referendum. Now, when
of the local. So even if the the referendum shows an
constitution and by laws of overwhelming majority who
the federation prohibit wants to disaffiliate and
disaffiliation, during the 5- they want to affiliate now
year period, that does not with ULGWP, what happens
prevent the total disability. when it is supposed to be
Now, if that happens it must within the 5-year period
be massive, overwhelming when all other parties can
in nature. Not just 51% it come in? that is when the
must be massive probably SUBSTITUTIONARY
90% of those in the DOCTRINE applies.
bargaining unit have voted BENGUET vs.
to disaffiliate. Give me an Benguet
example: here is a employees. The
federation that formed a CBA still continues.
local union with this Whatever CBA was
employer engaged in entered into that
making of charcoal for continues.
export. Now, in certification However, the new
election, it was this bargaining agent
federation that was chosen. the new
It certified. So it begins federation of which
collective bargaining even the local is
before he has control in the affiliated steps into
collective bargaining the shoes of the
agreement he has already old federation, now
received from management he administers the
the entire forecasted union collective
dues for the next 5 years. bargaining
Sabot siya sa management. agreement but he
Give us the union dues is not bound by the
now! Based on this number personal conditions
of employees! Now we are that the old
willing to get the union predecessor
dues. So wala na sila dira! federation
The federation is already committed itself to.
gone. Why is it interested to What are those?
get the money? Probably its The union security
aiming for another bigger clause, the no
corporations, so that they strike clause, etc
can get more employees, those that are
more than union dues so personal to the
they need capital to spend union. The new
for the election campaign. baragining agent is
Byaan na nila. So, what not bound by it.
happens to their The Benguet case
constituents there, the says, this new
locals? They have federation can
grievances. Nobody can negotiate to
entertain. They have shorten the
complaint. Nobody existing CBA.
entertains. It is already They can shorten.
more than 1 year, there is Negotiate. Of
still no CBA because there is course its up to
no assistance. So the local the employer. The
sees now unsa may employer can say,
kaugmaon nato niining lets just see this
federation?! Let us CBA through and
disaffiliate! Mangita ta ug then we talk about
laing federation! do you the new CBA. Its
think in that instance, those a matter of
in the bargaining unit know negotiation.
that that is his call? That
there is just 50%+1 who
wants to disaffiliate, Now, another kind of certification election: RUN-OFF
everybody wants to ELECTION.
disaffiliate! Now supposed
the DOLE is not sure, then Sec. 1 Rule 1 of Book V (ss) "Run-off Election" refers
the local will say, let us hold to an election between the labor unions receiving

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 Lectures on Labor Relations
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the two (2) highest number of votes in a
certification or consent election with three (3) or
more choices, where such a certified or consent
results in none of the three (3) or more choices
receiving the majority of the valid votes cast;
provided that the total number of votes for all
contending unions is at least fifty percent (50%)
of the number of votes cast.
You only have a run-off election if:
1. Valid election
When is there a valid certification election? If a
majority of the eligible voters of the bargaining
unit cast their vote. So, 50%+1. What happens
if there is no valid election? Less than 50%+1
vote in a certification election? there is a failure
of election. You have to have another shot of
electing. In other words, it is not a certififcation
eleciton. So, please remember this, a second
election in the same bargaining unit is not
necessarily a run-off election, because to have a
run-off election, the number one requirement is
there was a preceding election that was a valid
election.
2. In that valid election, there were at least 3
choices.
Please disabuse your mind from the fact that
there are at least 3 unions. NO! 3 CHOICES. It
could be: union A, union B and no union.
3. And none of the choices receives the
majority of the valid votes cast.
The basis of winning the certification election is
majority of the valid votes cast. The basis for a
valid election is participation of the majority of
the eligible voters. Basta ang boto na nakuha
unya gisuksok dira sa ballot box, 50%+1 eligible
voters bisan ang katunga ato invalid pa, kay
gichekan ang tanan, valid ang election. So,
normally, you cannot say that the chosen
exclusive bargaining agent is the choice of the
majority voters in the bargaining unit. Very
seldom ra na. labi nag daghan ang unions that
are vying for allegiance of the bargaining unit.
So, none of the choices receives of the majority
of the valid votes cast.
4. there are at least 3 choices
5. the number of votes attributable to all the
unions vying must be at least 50% of the
votes cast whether valid or not.
50% na gani, you cannot have no union
winning. Because for no union to win, it must
be at least the majority of the valid votes cast.
So, be sure you have those 5 things to memorize.
Alright, READ THE CASES ON THE: DISCRETION OF THE
MED ARBITER.
-end-
August 20, 2014
BIA
*appointment of associate justice stories*
Conclusion: God save the Philippines.
Lets go through the jurisprudence on the discretion of
the MedArbiter.
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In a petition for certification election, what is the ambit of
the discretion of the medarbiter?
Q: Suppose a petition is filed in an organized
establishment before the 60-day freedom period. Let us
say 1 week before the 60-day freedom period. Does the
medarbiter have jurisdiction to just hold the petition until
the tolling of the 60-day freedom period? Since its a non-
adversarial proceeding, does the med arbiter have
jurisdiction to hold on until toll of 60-day freedom period
then thereafter accepts officially the petition for cert
election?
SC says: any petition filed before or after the 60
day freedom period, the med arbiter has no
jurisdiction to entertain it. It shall be dismissed.
Liberty commercial center inc v. Pura ferrer calleja 169 s
459
Q: If a petition for certification election in an organized
establishment does not have the 25% signature support,
can med arbiter still order holding of cert election?
Yes he has discretion even if he does not have
25% signature support.
Q: Suppose petition still in an organized establishment
has the 25% signature support of bargaining unit, does
the med arbiter have jurisdiction to call cert election?
The answer is that is the only discretion the med
arbiter has [I think father means the one above]
He HAS TO call cert election. The 25% is
requirement as to establishment of legal doubt
as to representative status of that bargaining
unit.
Its already an organized establishment, it has
an incumbent. The 60-day freedom period.
There is a petition that is filed before that there
is 25% signature support of the bargaining unit,
then the med arbiter no longer has any
discretion but to call a certification election.
Alu v. Trajano 172 s 49 1989
Where the 25% support requirement of the petition is
met, the medarbiter has ministerial duty to order
election. He has no choice.
Q: suppose a petition in an organized establishment is
filed with less than 25% of signature support, can
petitioner subsequently submit additional signatures of
support?
The25% need not be submitted simultaneously
with the petition, it may be given later in the
hearing
Port workers v. Laguesma 207 s 329
Q: How about those intervene in an organized
establishment. They file motion of intervention, do they
have to have sign support?
SC says, no. It is the petition where signature
support is material. But as to motion to
intervene there is no such requirement.
Bf goodrich v. Bf goodrich natu
(National Association of Trade Unions, it is a Labor Center
Federation)
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Q: Where a participation of a union is challenged by a
rival union in a separate complaint with the LA for being
company dominated union, can the labor arbiter
nonethless order certifcation election to be held?
SC says no, that is a prejudicial question. If it is
a rival union that files an unfair labor practice
complaint against a rival union, then that must
first be settled. And there are several rulings
about that. Foremost of which is BF Goodrich.
BUT if it is management that questions rival
union, that is not a prejudicial question. Only if
it is another union.
Q: There is a pending separate petition for cancellation of
unions registration, can med arbiter still order the holding
of a certification election even if the petitioner is facing a
union registration cancellation proceeding?
Sc says, yes.
nuve v. Minister 110 s 274
Now there is a peculiar ruling:
UE automative ees v. Noriel 72 s 1976
Facts: the union is in the process of registration. It files a
petition for certification election in an unorganized
establishment. ___ consents to the certification election,
there is an election that is held and the union wins and
its registration certificate has not yet come out.
Q: is the registration still valid?
SC says yes. That the union chosen in the
certification election is not yet duly registered is
not sufficient to annul the election certificate. As
long as there is a bond fide effort to have it
registered.
Q: In effect, for as long as you have complied with all the
requisites of registration and you do not get any
response, much less a registration certificate, what is
your remedy?
MANDAMUS. That is precisely because
certification election in the exercise of the right
of self organization is one of the biases of the
constitution. Consti is all in favor of labors.
I give you:
Phil. Fruits v, torres 211 s 95 1992
Where the SC defines the meaning close of election
proceedings which determines time within which 5 days
you must formalize your protest in writing.
Dont forget election proceedings in certification election
is not the same as the proceedings in the omnibus
election code.
Q: May the mandatory 5 day posting of certification
election notice be waived by participating unions?
SC says yes, provided its unanimous, all
participating unions. That is:
jisscor independent union v. Torres 221 s 699
Recantations or retractions of union support in petition
for certification election
III Manresa 2014-2015
old rule: if retraction or recantation is dated
before the filing of petition, then SC said that is
presumed to be valid. If retraction or
recantation is dated after filing, then it is not
valid because presumed done under duress.
Why? The moment you file your petition for
certification election, you furnish a copy to
management. They know that there is a
petition. Those who sign support there are
known to management.
Now you would think that there is no need
anymore of that type of ruling after the
enactment of Ra 9481 because now union is not
obliged to reveal any of its members in an
unorganized establishment [file a petition, it
could be that a petition is filed by the officers, or
the officers of the local, or any of the members,
so management has no way of finding out who
the members are of the local WON it is before or
after the filing of the petition]. BUT THEN the SC
said in a recent decision retractions are best
resolved by a certification election. It
cannot be taken by face value. The best way to
settle the issue of WON retractions in support of
the union are genuine, is to hold a certification
election.
o You are the union, you say that that is
not true. The only way to find out is
certification election.
o If you are management, you say that
that is not true. The recommendation is
not valid. Then you should not be
afraid of a certification election because
that would be discovered there.
Benguet v. Benguet consolidated 23 s 465 1968
Please read that case and know what a schism(?), the
substitutionary doctrine is.
A schism(?) is further explained by the SC in:
Pambansang kapatiran v. Sec 253 s 96 1996
Referendum as to won local wants to disaffiliate from
their mother federation, there is this very short decision:
fed of unions of rizal v. Pura ferrer 24 may 1989
[I cannot find this on the net]
It ordered a referendum. This is a Chinese restaurant.
You better get a copy of that decision.
Another case that illustrates referendum:
Warren mftg workers v. Blr 159 s 387
Although the decision, the syllabi says, this is an example
of a consent election, it is actually a referendum.
Q: Can an ER appeal the results of a certification
election?
SC has said ER is not a party to a certification
election, so he cannot appeal.
The ER can appeal order of med arbiter to hold
certification election if he does issues with
respect to bargaining unit - won it is
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appropriate. Remember that order is a final
order and can be appealable under the grounds
provided for by the labor code like:
o when the decision is patently
erroneously made on its face as made
by the trier of the facts.
o It carries findings such that when it is
not corrected because it may have
irreparable harm to the parties.
o So it is very narrow ha. Not a mere
simple error.
Q; What is the meaning of unorganized establishment?
It must be the bargaining unit which has no
union. The ER itself could have a union and it
still unorganized if the bargaining unit that
composes it is new and it has not undergone a
certification election. That is:
california mftg v. Laguesma 209 s 606 1990
Basically those are the rulings of the court on the
discretion of the med arbiter.
So we are ready to begin COLLECTIVE BARGAINING.
Q: When does collective bargaining begin?
Article 260 (250). Procedure in collective bargaining. The
following procedures shall be observed in collective
bargaining:
a) When a party desires to negotiate an
agreement, it shall serve a written notice upon
the other party with a statement of its
proposals. The other party shall make a reply
thereto not later than ten (10) calendar days
from receipt of such notice;
Who usually submits bargaining proposals?
It is always the union, the exclusive bargaining
agent. So the assumption is there has already
been certification election and the union has
been officially certified as the EBR, then it draws
bargaining proposals and submits it to
management.
Is that the beginning of the DUTY to bargain?
Let me bring your attention to:
Article 250 (242). Rights of legitimate labor organizations.
A legitimate labor organization shall have the right:
c) To be furnished by the employer, upon written
request, with its annual audited financial statements,
including the balance sheet and the profit and loss
statement, within thirty (30) calendar days from the date
of receipt of the request, after the union has been duly
recognized by the employer or certified as the sole and
exclusive bargaining representative of the employees in
the bargaining unit, or within sixty (60) calendar days
before the expiration of the existing collective bargaining
agreement, or during the collective bargaining
negotiation;
So after the union has been certified as the sole and
exclusive bargaining representative, it can submit a
request in writing to management to supply the latest
audited FS and management must give.
So which is the beginning of collective?
Take a look at title of 260 PROCEDURE.
III Manresa 2014-2015
The beginning of collective bargaining as a
process is 260 (a).
The beginning of collective bargaining as a duty
and a right of the union is 250 (c)
So collective bargaining can either be a process or a duty
as well as a right. What does the SC say? The trouble is
the Sc says 260 is the beginning of collective bargaining
as a DUTY. Kalimot siya sa title ba, procedure! Kalimot
ang SC.
There is this case where the SC points to 250 and says if
the ER does not submit after a request has been given
then it is guilty of unfair labor practice. There is a
sanction. So you have a duty already. But there the SC
says in this case the union requested but it was not in
writing. So there is no sanction. I give you the citation of
the case, that is last years case. [note, walay gihatag si
Father. ]
The oft quoted case is:
Loy v. NLRC
Decided by serafin cuevas (served 3 branches)
*Cuevas stories* Quoted in the General Milling v. Castro
The duty to bargain begins where 3 requisites exist:
1. Majority representation status of the union
2. Proof of majority representation status
3. Submission to the ER of the written bargaining
proposals.
THEN there is a duty to bargain.
I thought that that decision is overturned with the
passage of RA 6715 or the Herrera-Veloso law because it
added 250 (c). but then the SC quoted that decision in
the General Milling case.
General milling was organized establishment in the 60
day freedom period they were handed bargaining
proposals. GM sucked it up, did not reply. The 60 day
freedom period lapsed, what is the effect if it lapsed
without certification election?
The incumbent has to be recognized.
BUT STILL the ER did not do anything to the proposals
even after 10 days. In fact 1 year passed. Thats why the
union went on strike.
According to General Milling, there has already been a
schism. There are so many disaffiliated they have
denounced their union. They want another federation. So
General Milling says I dont know who to negotiate even
if it there are bargaining proposals.
Thats when SC quoted Loy case. (father mentions 3
requisites).
What is the difference between Majority representation
status of the union and proof of majority representation
status of the union?
*Father ends class *
b) Should differences arise on the basis of such
notice and reply, either party may request for a
conference which shall begin not later than ten
(10) calendar days from the date of request.
c) If the dispute is not settled, the Board shall
intervene upon request of either or both parties
or at its own initiative and immediately call the
parties to conciliation meetings. The Board shall
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have the power to issue subpoenas requiring the
attendance of the parties to such meetings. It
shall be the duty of the parties to participate
fully and promptly in the conciliation meetings
the Board may call;
d) During the conciliation proceedings in the Board,
the parties are prohibited from doing any act
which may disrupt or impede the early
settlement of the disputes; and
e) The Board shall exert all efforts to settle
disputes amicably and encourage the parties to
submit their case to a voluntary arbitrator.
August 21, 2014
NO CLASS
August 27, 2014
BIA
3 phases of Collective Bargaining as a process:
1st
Negotiation Phase
2nd
Administation Phase
3rd
Re-negotiation phase
[gi-draw ni ni father sa pinaka-start, before negotiation
phase] Remember it is not possible unless voluntary
recognition in a certification has occurred, or there is a
results of the certification election. It begins here, ha.
The moment there an exlcuisve bargaining agent:
1. They can request from the ER a copy of the
latest audited financial statements. That is
provided in Art. 250 (C)
To be furnished by the employer, upon written request,
with its annual audited financial statements, including the
balance sheet and the profit and loss statement, within
thirty (30) calendar days from the date of receipt of the
request, after the union has been duly recognized by the
employer or certified as the sole and exclusive bargaining
representative of the employees in the bargaining unit, or
within sixty (60) calendar days before the expiration of
the existing collective bargaining agreement, or during
the collective bargaining negotiation;
What happens if the ER does not give a copy?
That is unfair labor practice, and ER may be
cited for refusal to bargain. You will find out
later on that ULP can ripen into a criminal
offense. So he has a duty to furnish the FS that
is certified.
What is the meaning of certified financial statements?
Audited by an independent external CPA. He has
a license, he stands or falls on his audit.
What does he certify to? Suppose you are given financial
statements, how will you know it is certified? What do
you look for?
There is a formal statement by the accounting
firm one of its partners that these financial
III Manresa 2014-2015
statement are accurate and they tell the
financial story of the company and it is true and
correct in accordance with the generally
accepted accounting principles
*story about internationalization of accounting principles
and some who do not*
Is the Philippines currently following the international
accounting standards? (calls someone, doesnt know)
WHO HERE IS A CERTIFIED PUBLIC ACCOUNTANT/ NO
BODY? THERE MUST BE ONE HERE.
GONZALES (PATAKA!): Alabastro, Father
-This part actually pwede na ninyo i-skip, and utang na
loob, weird kaayo ang feeling i-transcribe ang self. -
In theory, Philippines follows international.
However, some companies which are multi-
national in scope still follow other standards like
US. International Financial Reporting standards.
*jokes about financial statements nga naay picture. Point
is, pangitai ang signature*
*Luoy ang abugado na di kabalo mutanaw ug financial
statements, KAY ANG MGA ABUGADO LABAW SA MGA
CPA (sorry po. ), kung di ka kabalo, kaluluoy jud ka
kaayo. ITS VERY SIMPLE! Download on the internet and
read, MUBASA MAN GANI MOG WILLS, kana pa kaha *
So that is the first thing you look at, the formal statement
WON it is backed up by the CPA. What kind of statements
are there, Mr. Alabastro?
Balance sheet, income statement, cash flows
What I want is the certifying statement that an
independent CPA makes, how many kinds are there? Is
there only one kind?
It depends on the audit engagement.
What kind of attestations are there?
(mali akong tubag, sorry po. , basta ang point
ni father is) in GENERAL, Unconditional
certification. The CPA says in the statement that
the financial statements faithfully represents and
reflects the financial story of the corporation
without qualification and that the figures therein
are true and accurate.
But there are some items there that are
qualified certifications,then the CPA will say
what they are.
In general we can unconditionally say that
statements are ok, but these are caveats
(qualified),but in general its still fine.
San Miguel Corporation attests that it has about 2B
bottles in inventory, but the bottles are not in their
possession, what kind of attestation is that?
(lahi ata akong pagsabot kay father, basta
iyahang ingon is) HISTORICAL. You certify that
these bottles are owned by you but they are not
in your possession.
A corporation has certain stocks, bonds, in its treasury,
how do you list it?
(answer na gusto ni father ) at cost, not
market value, para conservative look at value of
company.
*makuratan ka if 300 imong gibutang, pero ang tinuod
kay 30. Mas maayo na irecord nimo ug 30 pero ang
presyo diay niya sa market kay 300*
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So with the audited financial statements, you can see the
real value of the corporation.
If you list securities owned by you at less than its market
price, its good for the company. Because you are being
conservative, that is what happened to warren buffet.
*Stories about companies taken over since they list
shares at cost, not at market value (forest
concessionaires)*
*father talks about intellectual property cases, leverage
your company on debt para maturn-off ang mga gusto
mag-take over sa company*
-diri na dapit magbalik sa lesson na jud -
So you have to have an idea about the financial
statements. That is why the labor code makes it
mandatory for the ER to give a copy to the certified
bargaining agent.
FLOW:
1. The process of collective bargaining begins
with the union submitting to management the
written proposals for bargaining, after it has
been directly certified (voluntary recognition) or
it has been declared as the sole and exclusive
bargaining representative in a certification
election. It submits bargaining proposals.
2. The ER has 10 days to respond.
a. Is this period mandatory? What is the
consequence if you do not respond?
LVN v. Philippine Musicians Guild ER LVN did not
respond, 10 days become 60 days. Union filed a notice of
strike and within the notice of strike, there was a
conference called, the mediator asked ER, LVN, why it did
not respond. LVN says we have no certainty if we will
continue to operate, we are losing so badly that we are
waiting for the annual neeting of the stockholders to
decide if we will continue operations or not. Is that a
valid reason not to respond? [in between, LVN closed
down]
So SC says that is a valid reason because afterall
there is no need to go to collective bargaining if
the ER shut down.
Another case:
Aristocrat Restaurant
[No citation from Father]
The EEs formed a union, had certification election,
became the EBR. They presented bargaining proposals, in
writing to the general manager. They received it, did not
do anything. The union files a notice to strike, ground:
ULP- refusal to bargain. Sec of Labor calls conference,
mediation, the old woman owner was asked why did you
not respond, she says Im new here. I did not even see
it, the proposals. She just got it during mediation. Right
and there, she says some may be given some cannot be
(terms of proposals) wrote on the margins those terms.
Is aristocrat liable for ULP for refusal to bargain when
there was no formal counterproposal submitted?
SC says there has been substantial compliance
with the requirement required by 260 of the
labor code.
Again, the case of Kiok Loy Certification election, union
wins. Union submits written bargaining proposals.
Management does not acknowledge that it received or
makes any counterproposal. It let the 10 days lapse.
III Manresa 2014-2015
Again union files notice of strike. SOL assumes
jurisdiction of case, during conference, SOL asks where
the counterproposal is. Management says we do not
have. So the SOL resolved the case, SOL will look into the
proposal of union, we will look into your financial
statements and find that it Is reasonable. We are now
imposing this proposal for the collective bargaining unit.
SOL orders, unilaterally, that it is the CBA because they
did not offer any counterproposal. Can the SOL impose
bargaining proposals as the CBA? A cba is supposed to be
an agreement (meeting of the minds) and there is only 1
mind in the proposal, how can the proposal become the
cba?
SC under the pen of CUEVAS (the only justice
served 3 branches )the bargaining proposals
are, by the dictate of the SOL, is the CBA. That
is landmark. It violates all principles of
contracts. The US is more than 200 years in
labor relations, you cannot find a decision like
that. And yet they continue to repeat the words
of justice holmes that collective bargaining is a
system by which you bring the parties to the
table, but you cannot force them to agree.
I thought this decision cannot stand, but recently it is
again quoted by the SC in the general milling v.
casio(castro?). again, the SC says the duty to bargain
begins:
1. Party submitted bargaining proposals
THAT IS THE 3rd REQUIREMENT.
The first is when the union has majority representation
status. Second when the union produces proof of
majority representation status. Third when it has
submitted written bargaining proposals.
Whats the difference between?
majority representation proof of majority
status representation status
Pangutanon ka minyo ba ka dai? Oo minyo. Asa imong
bana? Wala ko kabalo kay bulag mi. unsa mana, minyo o
bulag?
When you put down legally separated, what does it
mean? It means there is court decree allowing
separation. Are you married? Yes. The bond of marriage
still exists, it is an institution. It is not the same for
someone who is married [and bulag] and those living
together under 1 roof as husband and wife. Who is more
married? Under the maternity leave act, the 2nd one is
more married because the husband can avail maternity
leave. Pero katong bulag, maski minyo sila.
You have been certified as a collective bargaining agent,
you won the certification election, you entered into
collective bargaining and yet you were not able to
conclude the collective bargaining after 15 months.
Q: do you still have majority representation status?
Yes, you have majority representation status.
Q: do you have proof?
No more
The presumption that you are exclusive bargaining agent
is only for 1 year. The certification is good for 1 year.
After that is gone, any legitimate labor organization can
challenge your proof of majority representation status.
File a petition certification election.
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So you can file collective bargaining proposals, its not
only that you are majority representative, it must be that
you have proof of majority representation status.
For the distinction you read:
Divine word university of tacloban v. Secretary torres
*father finds out we dont have wifi in the room,
concludes class saying: What kind of university is this?
* of negotiating an agreement with respect to
August 28, 2014
5:00-6:00
Kem
And so we identified the phases of collective bargaining,
which is the first phase: negotiation phase, the content of
the duty to bargain is described in 262 formerly 252.
Before 262, is a useless provision which is article 261,
they could not amend this before, it used to be a long
provision but then they changed it so it ends up with
saying nothing. You look at that provision:
ART 261 Duty to bargain collectively in the absence
of collective bargaining agreements. In the absence
of an agreement or other voluntary arrangement
providing for a more expeditious manner of collective
bargaining, it shall be the duty of employer and the
representatives of the employees to bargain
collectively in accordance with the provisions of
this Code
What else are you going to follow your own code? Do you
follow the civil code? You have to follow the labor code.
They dont have to put this in writing. It is an empty
provision. There is a long story why this is here, because
this labor code is the most amended law, this is the only
law which underwent amendment even before it took
effect, this was published May 1, 1973. Basically because
of book one, the first agrarian reform was passed by
marcos covering rice and corn lands. Marcos wanted to
give the message that he was for genuine reform, so less
than a year after he declared Marshall Law, September
21, 1972. On May 1, 1973, he put out PD 442 or the
Labor Code. the basic author of this is his Labor
secretary Blas Ople. Blas Ople before was associated with
the left, in fact he was a drop out of UP, he did not even
finish a degree. And they kept amending it, this became
effective November 1, 1974, but even before it made
effective, it was already amended twice.
Now there are several duty to bargain provisions in this
labor code, the first one is article 261.
there is no CBA, there is no voluntary arrangement of
collective bargaining, do you have duty bargain? You
have a duty to bargain in accordance with the labor code
because it says here,
ART 261 Duty to bargain collectively in the absence
of collective bargaining agreements. In the absence
of an agreement or other voluntary arrangement
providing for a more expeditious manner of collective
bargaining, it shall be the duty of employer and the
representatives of the employees to bargain
collectively in accordance with the provisions of
this Code.
What does the provision of the code say? Art. 260-You
begin to bargain the moment you receive a written
proposal handed to you by the union that is in the
possession of majority representation status together
with proof of majority represatation status, thats what
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the provisions of the code says. You dont have to say
that because it is already in the code. That is the first
duty to bargain provision.
Second is 262, it is equivalent to negotiation phase
Art. 262. Meaning of duty to bargain
collectively. The duty to bargain collectively means the
performance of a mutual obligation to meet and convene
promptly and expeditiously in good faith for the purpose
wages, hours of work and all other terms and
conditions of employment including proposals for
adjusting any grievances or questions arising
under such agreement and executing a contract
incorporating such agreements if requested by either
party but such duty does not compel any party to
agree to a proposal or to make any concession
This is during the negotiation phase of the CBA. There
are 5 aspects there. First three are positive aspects, to
wit:
1. To meet promptly and expeditiously;
2. In good faith; and
3. For the purpose of negotiating an agreement.
The 4th and the 5th aspects are negative, namely:
4. The duty to bargain does not require the parties to
agree to any proposal;
5. Or to make any concession.
Those are the two negative aspects, you have no duty to
agree to a proposal precedent, you have no duty to make
any concession. Now we explained, this duty to bargain is
mandatory subjects of bargaining. What are the
mandatory subjects of bargaining? 262 says terms and
conditions of employment including proposals for
adjusting any grievances terms and conditions of
employment including proposals for adjusting any
grievances is that a mandatory subjects of bargaining?
You have to agree on how you will decide it, and how
you resolve. It is a procedural issue. Now that is one level
higher of mandatory subjects of bargaining. Why?
Because it is now a mandatory provision in the CBA. The
CBA is not a CBA unless you have a provision governing
grievance procedure. What do you do when there is a
disagreement? Now this apply about the usual problems
after the perfection of a regular contract. After the
perfection of the regular contract, you have the execution
phase. If you do not execute what do you call that? In
contract language? Breach of contract. Either party may
breach the contract. Now, that is never followed in labor
relations, do not make the mistake of saying breach of
collective bargaining agreement there is no such thing.
If you say that, you betray your ignorance and if I am the
examiner I will fail you. Because there is no such thing.
What is it in collective bargaining? It is a Grievance.
There is only a grievance. The only one who grieves is
the employee, the union. Why does the employer not
grieve? The employer does not grieve because the
employer has managerial prerogatives, he owns the
enterprise. That is the milieu, that is the medium where
the terms and conditions of work are exercised and
found. The CBA says working hours shall be from 8 to
12 and after a meal period of 1 hour, 1-5 PM. The
employee does not show up, without any notice does the
employer say? I grieve, you have violated the contract,
shall we go to a grievance procedure? NO! The employer
acts! this is my establishment, you are not appearing you
are penalized!. First offense you are given a written
warning. Second offense you are not only given a written
warning, you are suspended. Third offense, you are out!
Why can the employer do that? Because he owns the
enterprise.
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Once again, you are back to that unique situation of the
CBA, the CBA is not like a sales contract, the seller and
buyer, more or less they stand of equal footing with each
other. Its not like that! because the seller of labor is not
on equal footing with the buyer of labor. Because the
buyer of labor owns the enterprise where the labor is
carried out. If he does not agree with what they are
doing, he fires you and you are out, and that is when the
employee grievs. The procedure for grieving must be
outlined in the CBA. All other terms and conditions you
must negotiate, you dont have to agree. Let us say one
of the proposals is rice allowance, the union is asking
for rice allowance for all those in the bargaining unit. Is
management obliged to discuss that? YEAH! That is
terms and conditions of work. Is management obliged to
agree to it? NO! Because the law says such duty does not
compel any party to agree to the proposal or to make a
concession. How about grievance machinery? You have
to agree! You must put it down. It is a mandatory
provision in the CBA, there must be an agreement to it,
otherwise there is no CBA.. So please be able to
distinguish what is a mandatory subject of bargaining and
what is a mandatory provision in the CBA
Terms and conditions of work. you know general
motors, the CBA of general motors used to provide health
benefits to retired workers. Thats how powerful they
were, at the time when the auto industry in the united
states was at its height, the unions was so powerful they
were able to bargain from management not only health
benefits from the employees and his family but even after
they retire. They used to get higher hourly rate than
nurses. Like at one point their hourly rate was 36 dollars
per hour, the nurses would only get 32, even in new york
which is considered as one of the highest standards of
living. Wala nay college ha. Assembly line lang na, some
parts in the assembly line is just brawn, mukarga kag
chasis niadto, mao man to si joe luis? Na maayo mu
uppercut kay tigalsa og chasis. Maigo ka ato sa kuto2
ugma naka kamata. LELS! The retired employees
continue to receive benefits. Now they computed, the
GM's liability on its health benefits of retired workers
alone was equivalent to the entire assets of toyota. So
finally they have been told you must put an end to the
health benefits of retired workers. How do you go
around that? You pay them off!. And they have to tell the
union, its either continue the health benefits of retired
employees or you will never get an increase because
there is so much to pay for. So the union finally agree
depending on your numbers of years of retirement, the
longer you have been retired, the longer you have been
receiving the health benefits, you will get a lump sum
and that would be the end of your retirement benefits.
With that lump sum is up to you, you will buy health
insurance or whatever, you will get now a graduated
insurace benefits. So, the question arose, is that terms
and conditions of work? Health benefits of retired worker,
who are no longer at work? The NLRB group said It is a
mandatory subject of bargaining, it is terms and condition
of work, just like retirement benefits are terms and
conditions of work.
First, mandatory subject of bargaining must be within the
bargaining unit, the terms and conditions of work that
you can force you employer to sit down and bargain with
you must be within the bargaining unit. Second, it must
be terms and conditions of work, not any other subject
matter. I want to point out to you! a provision which is
very common in CBA, ang abogado ingani sa employer
wa jud kasabot unsa ang mandatory subjects of
bargaining, what do they agree? Example, Management
hereby agrees to supply the union with the names of its
probationary workers and when would they are expected
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to be regularized the bargaining unit is for the regular
workers, and management agrees to submit the list of all
probationary workers? Nganu musugot ana? Na outside
the bargaining unit mana?ha? Tanawa pagud ng mga
bargaining agreeement dinha. Wala kasabot! You are no
position to do that because it is outside the bargaining
unit! Pero samtang diha pa sila paabuton na nila just like
retirement benefits. Therefore it is a term and condition
of work, that influences them to stay or to get out and to
transfer to another place. Its a term and condition of
work, like health benefits when I am already retired. That
is different when the employer says I will furnish the
union who represents only regular workers the list of my
workers that are not probationary in fact they are in the
bargaining unit.
Terms and conditions of work. Meralco case, the
union says to encourage throughout the workers to stay,
they should be granted assurance that they have a
source of borrowing to build a home. So the CBA says
management hereby agrees to contribute a seed money
for a fund which will be available to all those in the
bargaining unit for borrowing to build there first home,
management hereby agrees to provide seed fund in
order to lend money to those in the bargaining unit the
fund will be manage by the union and they will screen
those who will borrow. What does the supreme court
say? The SC says that is not a mandatory subject of
bargaining. The establishment of a fund is not a matter
to be agreed upon by the employer and the employees.
It would have been different if the CBA said
management hereby agrees that it would lend money at
this much interes,t to all those who have been in service
for at least 10 years in order to build their own home
that would be a housing allowance or a housing loan, but
to build a fund, the SC says that is not a mandatory
subject of bargaining. SO, you must have a clear idea of
what is mandatory subject of bargaining because that is a
limitation of a duty to bargain. Dili sa tanan panahaon
muingon ka, magsabot ta! maglingkod ta! maghisgut ta!
it does not mean you have an obligation to sit down.
You are only obligated to negotiate if it is a mandatory
subject of bargaining.
Now, Good faith bargaining, to give you an example,
is the day of Boulwarism. Boulwarism is what was
practiced by Mr. Boulware, vice president of labor
relations of general electric. Just before the actual
negotiation for a collectve bargaining agreement, he
published the package proposal of the management, he
bought air time, radio time and at that time there was
still no television, because if there were he would have
also bought TV time, bought also newspaper, print space,
explaining the package. Then special people approach
the families of the workers that were covered by the
bargaining unit, explaining to wives and to the families of
the workers the superiority of the management's
package. And then when he sat down to bargain he says
the bargaining is over, I will not bargain anymore
because I have proven my point that this package we
have is far more superior than you owes to the union.
This was later found by the NLRB as a violation of good
faith bargaining. Because number one, you give the other
party a take it or leave it choice, akin to a contract of
adhesion, just like individual contracts of employment. A
contract of employment is you receive a job offer is it
not? You are inform that our proposal is that your
monthly rate would be 5,333 US dollars a month, that
you would be working straight 12 hrs a day for 10 days
and you will be out in the workplace and you will not
have to work for another 10 days etc. If you are
agreeable to this proposal then kindy sign below. And
then you just signed. You cannot change the contract,
you either accept it or reject it that is your choice. In
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other words there is no negotiation, because it is a take it
or leave it choice. So SC says this Boulwarism is wrong
because of that. Number 2 it is wrong because you are
not bargaining with the representatives, you have to
bargain with the representatives of the bargaining unit
which is the exclusive bargaining agent, the bargaining
panel of the union. (illustration sa board) This is the
bargaining unit, it is represented by a union, and then
the union must have a bargaining representatives.
Because the union is a juridical person it must have real
warm bodies speaking for it, because the union has no
mouth and no hand, it cannot even sign the CBA. Why is
it structured this way? First of all why is a bargaining unit
created? A bargaining unit has to be created because not
all employees can bargain. You cannot include
management, you have to separate supervisors from
rank and file, otherwise there would be collusion. Ang
kasakit sa usa mahimog kasakit sa tanan diba? Huna
hunaa pa gud ang maid nimo asawa sa driver nimo?
Nasuko ka sa maid nimo ibanga ka sa driver nimo? LELS!
Nasuko ka sa driver nimo hiluan ka sa maid! LELS! Ang
supervisor og rank and file pareho ra sila usa na ka union
ang kasakit sa rank and file mahimog kasakit sa
supervisor, mao ng hinungdan. Because there would be
an additional relationship that would undermines the
employee relationship, that is the reason why. Now, so
the bargaining unit has to be carved out of the employer
unit or the larger employer unit, that is the reason. Now,
why is it that there must be a union that must represent
it, why not direct a live person? Magelection sila knsa ang
president dra mao ng murepresent! nganu magunion pa
man gyud? Why? Wala na giexplain sa inyung mga book,
wla gi explain ni azucena. Tanawa pa gud ang tao warm
body, finite being, is the one representing the bargaining
unit, unya maigo siyag kilat? Hain naman knsa naman
murepresent? LELS! Mag election na sad? magaway na
sad? That is why it has to be a juridical person. Because
a juridical person is capable of perpetual existence. Now,
then the juridical person will choose one who will
represent them in representing the bargaining unit. The
warm bodies that will actually sit in the bargaining table
can be or need not be members of the union. You can
actually hire a lawyer to sit down, who do not have EE-
ER with management, you seek expertise of other
people. Maigo siyag kilat, pulihan nimo!. Because
certification election is very contentious. Remember! the
bargaining unit in terms of its role is the principal, union
is the agent. In terms of the benefits, the bargaining unit
is the beneficiary, they enjoy the benefits, they also they
carry out the obligations. The union on the other hand,
negotiates the benefits. They do not enjoy it except for
the so called personal clauses in the CBA like check off
union dues. Management hereby agrees to check off
union dues from the salaries of workers. So even before
a worker gets his salary the union dues is already been
deducted at source. Murag gobyerno. Murag BIR! kim
henares.LELS! Wala pa gani nakuha imong sweldo
gikuhaan na og tax.
Now, the bargaining unit is a decision both of the
employees and the state, element here is the employer
because the configuration of the bargaining unit must
take into consideration the just and valid ends of the
employee, you cannot make the bargaining unit as such
that which would be inconvenient to the bargaining unit.
You create so many bargaining units, now walay mahimo
ning employer, sige lang nag suroy2 sa bargaining unit to
conclude the CBA, you cannot do that. But this union it
is entirely a creation and choice of the employees{?). The
petition for certification election is a matter to the
employees, management is hands off, walay labot!
Now this representatives who's choice is this? It is
supposed to be to the union, question! Can management
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say, and writes a letter to the union, you know in the last
negotiations 5 years ago it took us two years to arrive at
a CBA and part of the reason is your lawyer, very
combative. We are requesting that you replace your
lawyer so that we will progress with our negotiation. Can
management do that? Is that a mandatory subject of
bargaining? Kanang CBA asa man ka magsugod,
economic provisions or the so called political provisions?
The usual wisdom is, if you start with the economic
provisions, the economic provisions is the heart of the
CBA, mao man na ang gipangita sa tanan pila ang
increase? Now kung magsugod ka dira, murag nikaon
paka ngsugod naka sa bukog gahi kaayo sa tanan, wala
kay agi! no sense of accomplishment!, but if it is a
political provision(non economic provision) like no strike
no lock out clause, check off, security of tenure,
these are a little bit easier to agree upon. Why? What is
the difference between economic provision and non-
economic provision? Any provision that is reduceable to
peso term is an economic provision. You say 5 days leave
instead of 6, that is an economic provision because you
can reduce it to peso terms. One sack of rice, or rice
allowance, another example. By the way, NEVER! if you
have a management position you do not agree to grant a
service or commodity. Why? It took SMC 25 years to
remove 1 sack of rice subsidy in the CBA when it agree to
it. In 1950's rice only cost P28 pesos per sack. kadto
1,600 or 1,700 per sack, karun pila ang sack of rice?
Gusto kag 7 tonner P2,200. So every year you are
actually granting your employees to increase that is tax
free, who bears it? The employer, that is the problem if
you agree to the grant of commodity of a service. What is
the economical resort to it? You agree to a peso amount
that will fetch the commodity in the CBA. Lets say health
benefits, management agrees to provide, you do not say
free hospitalization , you say management will provide
such health, hospitalization, accident benefits as can be
fetch by the P1000 per capita health insurance. KANA!
Mumahal baya ang benefits. Health cost changes
August 28, 2014
8:00-9:00
ADCJ
We discussed in the last period about the insistence on
who should be in the negotiating panel, economic
provision and non-economic provision. I strongly suggest
that you read the case of STANDARD CHARTER BANK
EMPLOYEES-NUBE VS. SECRETARY CONFESSOR 432
SCRA 308 [2004]. You will see here when you have a
valid claim for unfair labor practice on the part of one
partys insistence as to who should be in the panel. When
is that unfair labor practice? The decision here says, if
you object and yet you continue to bargain, you waived
it. If you only raise it later on, even if you went through
the bargaining process and you opposed in changing your
panel, you effectively waived it.
Here the SC also says that, if the union does not put in
writing its demand for audited financial statement, it
waives it.You are already in bargaining and you say all
propositions or proposals how does this compare with
the financial statements? Is this alright? SC says, if you
do not put it in writing, you have fallen short on what the
law requires.
There is only this one remark I have in this decision and
this is the so-called BLUE SKY BARGAINING because
that is even included in the syllabus for Bar Examinations.
BLUE SKY is not a labor relations term. It is a commercial
term. The US SC said that the Securities Commission Act
is a blue sky law.Why is it called the blue sky law?
because it is the law that protects the innocent investor
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from all parties who are trying to sell them scams.
Securities that promised the sky.
Here, the SC calls it, Blue Sky Bargaining if your
demands, unions demands are unreasonable. But it has
no place in the labor relations. If they just read the old
cases like Caltex vs. PLO 93 Phil 294 [1954] subsequently
reiterated in San Carlos Milling Co. vs. CIR 1SCRA 740
[1961]. SC says in those cases: you cannot make the
reasonableness in laymans as an index of its validity or
legality. It can be outrageous as it can be. It should be
rejected if it is outrageous. But then, it is still valid if you
ask for better terms and conditions. Why so? Because, at
one point, most of these labor standards that workers
now enjoy were impossible demands. If the whole world
work for 12 hours, it was sun up to sun down in the
beginning of the industrial revolution, as soon as there
was light, the workers continue to work. So its 6am-
6pm. When workers asked for 10 hours of work instead
of 12, its impossible. The first employer to grant it would
find it impossible because he would be at a loss. That is
why JBL Reyes says, we should not make reasonableness
the yardstick of the validity of the demand. Do you think
that stands to reason? The SC is completely oblivious to
the decision. Instead they even quoted it. You can see
the depth of the thinking of the labor---SHALLOW!
Nakalimtan na nila nga naa na siya na desisyon and it is
still good law.
The whole business standards, you cannot go lower 35
days or week, if you do, you will lose. So, the more you
lower down, you will be at the losing end. Workers and
unions of the bank would demand lower working hours,
they put the company in jeopardy. Thats the thinking of
the businessman because the businessman always thinks
of longer hours for a bucks paid. But you cannot do that
way. Now there are so many ways and means to be
productive. There is technology. There is creative
methodology. Many things. So, you cannot even make
that increase following the thinking of reasonableness in
Caltex case. you cannot make the reasonableness of the
demand as the yardstick to bargain to gain to the finding
of unfair labor practice to the proposals of collective
bargaining.
Alright, we said, the duty to bargain entails good faith,
one of the ways that good faith is violated is bolwarism,
surface bargaining, SC says blue sky bargaining [big
question mark; whenever you will be asked that in the
Bar Examinations, you can cite the JBL Reyes opinion and
you will be top notcher because the SC will be reminded
in their decision which has not yet overturned. This is just
a second division ruling and that PLO Caltex ruling is en
banc], Nestle ruling. What is that Nestle ruling? This
ruling is so thorny that the first division ruling of the SC
was 2006 union vs. nestle 499scra521[2006] and the
court found it necessary 2 years later to entertain a
motion for reconsideration the then resolution UNION vs.
NESTLE 547scra323.
This is the issue: Nestle has 13 plants. The biggest food
company. They were bargaining in the last, the 13 th
company. This 13th company is controlled by KMU. Now,
nestle proposes a retirement plan that is non-employee
contributed. So, no contribution from the employee. It is
so much better than what the law provides.what does the
law provide? Labor standards: month salary+5days
incentive leave + 1/12 of 13th month pay that is
according to the Manual Code Labor Standards of DOLE
= 22.5days wages for every year of services.
Now, Nestle says, we are offering you 1.5. 1 and a half
salary for every year of service. No contribution from the
employee. Fully funded by the employer guaranteed. So,
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let us no longer bring it to the table for discussion. You
accept that. The union said, NO! we must put it in the
table. We want to negotiate! We are not satisfied. So,
management said, No! We dont want to discuss it
anymore agree na ang 12 ka planta. Ikaw na lang ang
last. We do not want to revise it! Kay magkagubot na pud
sa uban pang planta. Management has already completed
group of companies. So we do not want to revise it.
Now, the union raised MANDATORY SUBJECT FOR
BARGAINING. We must discus it because it is mandatory
subject for bargaining. They raised it to SC. Is it or is it
not? SC says in its first decision, YES, it is the mandatory
subject for bargaining. Question: Is the insistence of
nestle not to discuss the terms an unfair labor practice
act which is proscribed by the law? SC says NO IT IS
NOT. It is just as legitimately positioned as the position
that you should want to discuss it. When you say I do
not want to discuss it and you say I want to discuss it
jointly officious*.
This 2nd decision is no more legitimate than the 1st. The
union filed a seond motion for reconsideration. Nothing
new. Naglangan2 lang jud ang KMU. Now, why is it that
that is not a refusal to bargain when you say I do not
want to discuss it? Why not ULP? Because the stand of
management is not take-it or leave it. It is I am willing
to discuss with you that I do not want to discuss with
you. For as long as you keep talking that you dont
want to talk, you are still bargaining. That is the key. Any
position you can think. Because the duty to bargain does
not compel you to agree to a proposal or make a
concession. So as long as you talk, you can say that you
dont want to talk anymore. As long as you are talking,
you are still bargaining. I keep on repeating that because
they dont understand the decision. Why is it decided
thos way? Is it that refusal to bargain is unfair labor
practice? Is that bargaining when you refuse? In other
words, under Book V of the Labor Code, there is an
illegitimate way to disagree and there is a legally
agreeable way to agree and that is continued
bargaining. That is the duty to bargain when we visit
first this negotiation phase.
2ND NEGOTIATION PHASE
Now you have an agreement that is the law of the
parties. The behavior of the parties are now measured by
agreement. Is there still negotiation? If you look at the
basic principles of conracts, they wont let you have a
next agreement. Negotiations na. Only now
exceution.But, the SC come up with a ruling and the SC
says, in collective bargaining, negotiations, bargaing does
not end in the execution of the written contract.
Collective bargaining is a never ending process. Republic
Savings Bank vs. CIR 21 SCRA 226 [1967].
This has been asked many times in the bar examinations.
What does it mean that in labor relations, collective
bargaining does not end? What does the saying mean
when it says that collective bargaining does not end wit
the collective bargaining agreement? You read the case.
The SC says: when the respondents complained against
nepotism, favoritism and other management practices,
they were acting within an area marked out by the
Industrial Peace Act as a proper sphere of collective
bargaining. There is already a collective bargaining
agreement ha! Even the reference to immorality was not
irrelevant as it was made to support the respondents'
other charge that the bank president had failed to
provide wholesome working conditions, let alone a good
moral example, for the employees by practicing
discrimination and favoritism in the appointment and
promotion of certain employees on the basis of illicit
relations or blood relationship with them.
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What the Bank should have done was to refer the letter-
charge to the grievance committee. This was its duty,
failing which it committed an unfair labor practice under
section 4(a) (6). For collective bargaining does not end
with the execution of an agreement. It is a continuous
process. The duty to bargain imposes on the parties
during the term of their agreement the mutual obligation
"to meet and confer promptly and expeditiously and in
good faith . . . for the purpose of adjusting any
grievances or question arising under such agreement"8
and a violation of this obligation is, by section 4 (a) (6)
and (b) (3) an unfair labor practice. Instead of stifling
criticism, the Bank should have allowed the respondents
to air their grievances. Good faith bargaining required of
the Bank an open mind and a sincere desire to negotiate
over grievances.
So, what does this tell you? Supposed an empoyee or a
union is unreasonable, he makes a complaint with
management and management believes that there is no
grievance at all, what is the duty of management? Go to
grievance machinery. That is still the duty. You still have
to meet this unreasonable guy and try to reason with
him.
You know we are talking now of the grievance
machinery. Then, you know about the requirement of the
law about the old Article 277[b] now Article 291
investigation required by law before you seriously
discipline your employees. Book VI, you have the 2-notice
rule. If an employee is in jeopardy of being suspended or
dismissed there is due process that is required dictated
by the old 277[b] which is now Aticle 291. Subject to the
constitutional right of workers to security of tenure and
their right to be protected against dismissal except for a
just and authorized cause and without prejudice to the
requirement of notice under Article 283 of this Code, the
employer shall furnish the worker whose employment is
sought to be terminated a written notice containing a
statement of the causes for termination and shall afford
the latter ample opportunity to be heard and to defend
himself with the assistance of his representative if he so
desires in accordance with company rules and regulations
promulgated pursuant to guidelines set by the
Department of Labor and Employment. This is what is
termed as due process.
Yet, the SC says due process is not enrolled here! Why?
Due process is your right vis--vis the goverment. When
it is the employer who investigates you, there is no due
process there. There is the process because it is
STATUTORICALLY demanded by Article 291[b]. The law
requires you. It is not the Constitution because the latter
is your right vis--vis the law. again, the SC forgot that it
said that.
So if you have grievance procedure and you have this
due process, which do you follow first? The grievance
or the due process? Hospital naay warehouse. Naay
bodegero dira, warehouse man. Naa say access ang uban
dira. Nangawala ang mga xray plates. So, management
puts up a sign the warehouseman is temporarily
suspended pending investigation of the disappearance of
the xray plates. All those who have information as to the
disappearance of these plates, they are asked to report
to the manager so as to be able to find out. Unya
muingon ang warehouse man, gipakaulawan ko! Ngano
gibutang man na dira! You are maligning me! Are you
saying I stole it?! I demand grievance! This is my
complain vis--vis employer because I have been
maligned! What is the duty of the management?
Investigation or grievance? Duty to bargain, it conducts
grievance because the employer has *** grievance. They
must meet and yet he still has to conduct investigation
because it is also required by Article 291[b]. Now, after
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he has finished the investigation and found out that the
warehouseman is the one responsible, then you have
another grievance because the union will meet with you
and say, can we not settle this? Can you not lower the
penalty?. That is grievance procedure. So actually there
are 2 grievances therethe complaint of the employee
which you cannot just set aside. You must meet promptly
and expeditiously to adjust the demand. Conduct the
investigation. After the investigation, you must conduct
another grievance. Sad-an na jud. Are you still obloged
by law to go through greivance procedure? YES. You are
still required.
So, remember, that is part of the duty to bargain. There
is already a written agreement with the parties, any
disagreemnt arising from that agreement can give rise to
a grievance and management must observe that.
What is the definition of a grievance? Its in the
implementing rules sec. 1 rule 1 [u] "Grievance" refers
to any question by either the employer or the union
regarding the interpretation or implementation of any
provision of the collective bargaining agreement or
interpretation or enforcement of company personnel
policies.so, as long as it is in the CBA, it is a grievance.
What if in the CBA, it is not about terms and conditions of
work, is it still a grievance?
Supposed there are provisions of CBA by which the
company obliges itself to grant a loan for emergency
purposes provided the employee complies with the
requisites of the grant. Youve been hit by flood and you
proved that you hit by flood. You proved that your take
home pay cannot possibly respond with the emergency.
Your home was destroyed. Once you have proven that,
the management lends you money. Now, supposed you
do not tell the truth. Litrato na ang gipakita balay diay sa
imong igsoon. Gipakita pa nimo ang mga litrato na naa
imong mga anak luoy kaayo kay nagkurog2. Nag-ice
bucket challenge ra diay to sila. Unya nakahuwam ka
tungod sa mga litrato na imong gipakita. Pagkahuman
gibawi sa kompanya anf gihuwam sa imo. The company
says, you are not entitled to the staggard payments. The
whoke thing shall be returned. What is that?
Nagproblema ka. Because its all about loans. Loans are
nominate contracts. The proper forum that has
jurisdiction is the regular court. SC says: conflicts arising
from CBA [arising means if the law or rule that will be
used to resolve the dispute is labor statute or CBA], then
it is a labor dispute. If it is not, then it is not a labor
dispute. It cannot be a grievance. The proper remedy for
the employees to file a case in the regular courts because
you are talking about a loan, a nominate contract.
GRIEVANCE
Part of the exrcise of collective bargaining duty is to
attend to grievance. So even if you are in the
administration phase, technically negotiations have
stopped because you have concluded an agreement, you
are still negotiating when it comes to the grievances. So
with regard to grievances, the 3 positive duties still apply.
You have to meet prompt and expeditious, in good faith,
in order to arrive at a settlement. Although, the union has
a duty to agree or disagree the proposal or to make any
concessions.
Now, that is one part of the duty, once there is a CBA.
Once there is a CBA, there is another set of duties what
is that? Article 263 Duty to Bargain Collectively
when there exist a CBA. When there is a collective
bargaining agreement, the duty to bargain
collectively shall also mean that neither party shall
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terminate nor modify such agreement during its
lifetime.xxx
You cannot put aan end of it or change it because I told
you there are 3 exceptions: sism, local disaffiliates,
there is a new substitute to the whole collective
baragining agent because of the massive disaffiliation,
then the new substitute can negotiate. That is the ruling
in Benguet vs. Consolidated Mining. That is an exception.
GR:You cannot terminate nor modify. What is the
exception to modify? When the employer grants higher/
better benefits than what is provided in the CBA, then
that becomes a new law. the employer can no longer
return to the CBA and lower down benefits. That
happened in Davao Fruits vs. NLRC. Naa silay CBA. It
turned out that Davao Fruits was paying 13th month pay
more generously than what the law provided. how do you
compute 13th month pay? 13th month pay= total cash
wage [stratight time pay excluding overtime, premium
pay, 13th month] divided by 12. What did Davao Fruits
do? They included overtime pay and practiced it for more
than 5 years. They finally said, sayop diay mi. anyway
the CBA says 13th month pay. It does not say more than
13th month pay. What were giving you is more than 13 th
month pay. We are going back to the correct
computation as provided by CBA. SC says NO MORE you
have been practiting it for 5 years.That has ripen into a
right.so therefore you can modify the CBA provided it is
for the good and benefit of the worker.if it is better for
the employee, you can modify. But if you will change it
less than what is provided, you are in violation with the
CBA. That is part of unfair labor practice bargaining.
And then article 263 continues xxx However, either
party can serve a written notice to terminate or
modify the agreement at least sixty (60) days
prior to its expiration date.xxx. Actually, the law
means here that you can begin re-negotiations for the
succeeding CBA. You are not terminating or modifying
the existing CBA. You can begin to renegotiate it 60 days
prior to its expiration. xxx It shall be the duty of
both parties to keep the status quo and to
continue in full force and effect the terms and
conditions of the existing agreement during the
60-day freedom period and/or until a new
agreement is reached by the parties. So, actually
what is *** here is the renegotiation part.
HOWEVER, in another provision, there is this grant or
option on the part of the union to renegotiate the last 2
years of a CBA for as long as you begin renegotiation for
the last 2 years of the CBA its benefits before the end of
the 3rd year. That is Article 264 [former 253-A] Art.264.
Terms of a collective bargaining agreement. Any
Collective Bargaining Agreement that the parties
may enter into shall, insofar as the representation
aspect is concerned, be for a term of five (5)
years. No petition questioning the majority status
of the incumbent bargaining agent shall be
entertained and no certification election shall be
conducted by the Department of Labor and
Employment outside of the sixty-day period
immediately before the date of expiry of such five-
year term of the Collective Bargaining
Agreement.xxx so 60-day freedom period is the last
60 days of the 5th year of the CBA.
xxx All other provisions of the Collective
Bargaining Agreement shall be renegotiated not
later than three (3) years after its execution. Any
agreement on such other provisions of the
Collective Bargaining Agreement entered into
within six (6) months from the date of expiry of
III Manresa 2014-2015
the term of such other provisions as fixed in such
Collective Bargaining Agreement, shall retroact to
the day immediately following such date.xxx so
you have this option that before the end of the 3rd year,
you can submit to management written proposals and
then for the last 2 years, you change it, modify it,
renegotiate it. That means management has the duty to
bargain as to the last 2 years if the CBA has the term of 5
years.
Q: can you waive the right to negotiate for the last 2
years? YES, you can. It must be explicit. You waived the
right to negotiate. Who waives it? The union. The
exclusive bargaining agent. General Milling vs. Casio: that
is the duty to bargain, the moment you receive
bargaining proposals as to the last 2 years and you
ignore it, you violated the duty to bargain. You must
follow Article 260 again. You have 10 days to respond the
bargaining proposals. Submit it to the employer and you
go to concessions*. There you have the instances of the
duty to bargain. Many provisions here:
1. Negotiation phase
2. Unorganized establishment, the moment there is
an exclusive bargaining agent
3. There is a duty to bargain when there is a CBA
4. When there is a grievance arising being the
meaning which it is a labor controversy because
you need labor organization or CBA to resolve
the controversy
5. If the employees representative presents you a
bargaining proposal before the end of the 3rd
year of the 5-year CBA. You have to renegotiate
for the next 2 years.
How about the last 60 days of the CBA, if you have
presented with bargaining proposals do you have
the duty to bargain? This time SC says, An employer
who renegotiates the CBA within the 60-day freedom
period does so at his own risk because there might
be third party who will file a petition for certification
election and if the petition is granted there will be a
certification election and he is not sure whether or
not the incumbent will win. If the incumbent wins,
well and good. If the incumbent loses and there is a
new certified collective bargaining agent, he will
have to enter into a new CBA negotiations to the
new agent. That is why it is optional on the part of
management to enter into a new negotiations with
the incumbent for the renewal of CBA in the last 60
days of the 5th year of the CBA.
Murag labo na sa inyong mga nawong ang akong
ginastorya. You have to read. Draw it. Subaya na.
sumpaya ang phases. So you can get the flow because if
you just follow this, you cannot see the process. Alright
we will meet again.
September 3, 2014
BIA
We have discussed economic provisions and non-
economic provisions.
What is an example of economic provisions? These can
be reduced to peso terms. If not, it is non-economic.
Ex: Wage increase
Why is it important to distinguish?
Because of the provision of the labor code that
now reduces violation of the CBA practically only
involving economic provisions
The law says only flagrant violations of the
economic provisions of the labor code
constitutes unfair labor practice. If you violate
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any other provision and it is not an economic
provision, it is not unfair labor practice.
What constitutes flagrant violation of economic
provision? Flagrant and or malicious refusal to
comply with an economic provision. That is
unfair labor practice (ULP), violating CBA.
So therefore, even if it is an economic provision
but there are ambiguous terms in the provision,
it cannot be flagrant. Why? Because it is a
question of interpretation. Flagrant and/or
malicious refusal to comply with the provision,
and the provision is unambiguous and the
employer simply does not comply with the
provision, then it is ULP.
If it is ULP, who has jurisdiction? It is the labor
arbiter. Under the old 217 (224) -Article 217.
Jurisdiction of the Labor Arbiters and the
Commission. Except as otherwise provided
under this Code, 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 the parties for
decision without extension, even in the absence
of stenographic notes, the following cases
involving all workers, whether agricultural or
non-agricultural:
Unfair labor practice cases;
If it is not ULP, who has jurisdiction? Questions
arising from the interpretation, implementation
or enforcement of collective bargaining is under
the jurisdiction voluntary arbitrator thru
grievance machinery. - Article 260. Grievance
machinery and voluntary arbitration. The parties
to a Collective Bargaining Agreement shall
include therein provisions that will ensure the
mutual observance of its terms and conditions.
They shall establish a machinery for the
adjustment and resolution of grievances arising
from the interpretation or implementation of
their Collective Bargaining Agreement and those
arising from the interpretation or enforcement of
company personnel policies.
o So the 1st par. Here declares in so
many words that the grievance
procedure is a must in a CBA. It must
be present, it is a mandatory provision,
not just a mandatory subject of
bargaining. There must be agreement
as to it and must be placed in the CBA.
Then it says
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 Agreement.
For this purpose, parties to a Collective
Bargaining Agreement shall name and designate
in advance a Voluntary Arbitrator or panel of
Voluntary Arbitrators, or include in the
agreement a procedure for the selection of such
Voluntary Arbitrator or panel of Voluntary
Arbitrators, preferably from the listing of
qualified Voluntary Arbitrators duly accredited by
the Board. In case the parties fail to select a
Voluntary Arbitrator or panel of Voluntary
Arbitrators, the Board shall designate the
Voluntary Arbitrator or panel of Voluntary
Arbitrators, as may be necessary, pursuant to
III Manresa 2014-2015
the selection procedure agreed upon in the
Collective Bargaining Agreement, which shall act
with the same force and effect as if the
Arbitrator or panel of Arbitrators has been
selected by the parties as described above
o This is more common (panel). The
designation of a specific person as a VA
in a CBA is very rare. Matikog sila,
patay, kinsa man imong VA? Wala na.
whereas if you have a procedure for
selecting, you do not run that risk.
What is the difference between designating the VA or a
procedure to determine a VA, or a procedure to
determine a panel? Which is better, to have a panel or
just one VA?
Its better to have a procedure for the
designation of only 1 VA. If you designate a
panel it is very expensive. VAs do not serve out
of the largeness of their hearts. You have to pay
them. So normally you do if it is a panel, the
union shall appoint 1 VA for the panellists.
Management shall appoint 1. The 2 shall select a
3rd one, which turns out the 3rd one is the one
who will resolve the problem because he will
side with the other. The one chosen by the
union side with the union, one chosen by mgt
will side with mgt. and whoever the 3rd one
sides with wins. So it ends up with 1 who
decides a resolution in VA panellists. So im
telling you that from experience.
Article 261. Jurisdiction of Voluntary Arbitrators or panel
of Voluntary Arbitrators. The Voluntary Arbitrator or panel
of Voluntary Arbitrators shall have original and exclusive
jurisdiction to hear and decide all unresolved grievances
arising from the interpretation or implementation of the
Collective Bargaining Agreement and those arising from
the interpretation or enforcement of company personnel
policies referred to in the immediately preceding article.
Accordingly, violations of a Collective Bargaining
Agreement, except those which are gross in character,
shall no longer be treated as unfair labor practice and
shall be resolved as grievances under the Collective
Bargaining Agreement. For purposes of this article, gross
violations of Collective Bargaining Agreement shall mean
flagrant and/or malicious refusal to comply with the
economic provisions of such agreement.
Now, what happens if the LA receives a complaint
labelled as ULP and the LA finds that it is a question of
interpretation in the CBA. What shall he do?
Article 217. Jurisdiction of the Labor Arbiters and
the Commission.
Except as otherwise provided under this Code,
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 the parties for decision without
extension, even in the absence of stenographic
notes, the following cases involving all workers,
whether agricultural or non-agricultural:
Cases arising from the interpretation or
implementation of collective bargaining
agreements and those arising from the
interpretation or enforcement of company
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. (As
amended by Section 9, Republic Act No. 6715,
March 21, 1989)
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So the only jurisdiction of the LA is to dismiss the case,
not just to dismiss it but to REFER it, order the parties to
comply with Voluntary Arbitration if they had gone thru
grievance machinery. If they have not, comply with
grievance machinery. So it is not an ordinary dismissal.
There is a referral to the forum which has the correct
jurisdiction.
Article 276(262-B). Cost of voluntary arbitration and
Voluntary Arbitrators fee. The parties to a Collective
Bargaining Agreement shall provide therein a
proportionate sharing scheme on the cost of voluntary
arbitration including the Voluntary Arbitrators fee. The
fixing of fee of Voluntary Arbitrators, whether shouldered
wholly by the parties or subsidized by the Special
Voluntary Arbitration Fund, shall take into account the
following factors:
Nature of the case;
Time consumed in hearing the case;
Professional standing of the Voluntary Arbitrator;
Capacity to pay of the parties; and
Fees provided for in the Revised Rules of Court.
The amount necessary for the parties to register a CBA is
collected and that is Voluntary Arbitration fund.
Sometimes labor unions do not have funds to answer for
the payment of the VA, so they will ask. They will file a
petition with the labor department to see if they can get
a grant from the voluntary arbitration fund so that they
can pay the VA. So the union does not like VA because
they have to pay. Management, no problem. But the
union, since they have to pay, as much as possible they
want to make it a non-VA case.
Now most CBA in the US and more and more the PH is
following have included as part of the CBA a non-
economic provision feature as an annex. What is that
annex? The disciplinary book of the EEs, the so called red
book or (maski unsang color) book in the company. What
does a red book look like? *drawing matrix* *Father
demos matrix*
1st offense 2nd offense 3rd offense
tardiness OR WR F S+F
Theft D na diretso
Legend:
OR oral warning
WR written warning
F - fine
S suspension
D dismissal
Now, this is not economic provision. This is disciplinary,
political provision. This cannot be the subject of ULP
because it cannot be reduced to peso terms.
Now, the SC has ruled that this entirety of discipline book
cannot be completed without the participation of the EEs
in the formulation. Take note that the SC says
PARTICIPATION, not CONSENT OR AGREEMENT. They
participate. They might be thoroughly against it, as long
as the rules in the red book are reasonable even if all of
them disagree then that will be valid as long as there has
been participation. Its the same rule as tuition fees.
students dont have to agree to the increase in the tuition
fee, they participate in formulation, as long as there has
III Manresa 2014-2015
been consultation, it is the state who determines WON
the increase is reasonable. Likewise, that is the rule in
the labor code with respect to the non-economic
provisions.
The matter of discipline necessarily if it is the subject of
serious penalties, like suspension or dismissal, you have
to follow the procedure laid out in the Labor Code. That
procedure must be complied 1st before you comply with
grievance procedure. If it is a disciplinary case, and you
enter into grievance after you have finished investigation,
2-notice rule, ample opportunity to be heard with the EE
having the right to later on have a counsel of his own
choice, could be a labor officer, a friend it could be a
lawyer. He has the right to bring with him or her during
investigation. After there has been a ruling, say he is
found guilty as charged and therefore the penalty of
dismissal is meted out that is where you rely on
grievance. Why? Because now there is the proximate
possibility of a substantial change for his or her
employment status. If there is no substantial change, IT
IS MY SUBMISSION, there is no more grievance it is no
longer GRIEVABLE.
Now remember, even if it is not grievable, the ER still has
the obligation to meet promptly and expeditiously to try
to adjust and arrive at a reasonable agreement. That is
part of the duty to bargain collectively when the CBA
already exists. Unit and they say it is grievable, and they
(management) says it is not. Now this thing continues,
he will bring it to the voluntary arbitrator.VA will have the
1st instance to rule on its arbitrability, just like a judge
has the 1st instance to rule as WON he has jurisdiction. Is
it not that you file a motion to dismiss for lack of
jurisdiction with the judge? Thats really a polite way for
saying to the judge you have no business here, you
better go home. its just called in our parlance a
motion to dismiss. We are asking you to get rid of this
complaint because you have no power to hear or decide
whatever it is that the complaint is saying. SO ALSO IN
VOLUNTARY ARBITRATION, you file a motion to dismiss
with the VA.
Take note that the VAs jurisdiction is 2-fold:
1. There is the mandatory jurisdiction which is
interpretation or implementation of CBA or
interpretation and enforcement of company and
personnel policies. Or, the 3rd mandatory
jurisdiction is one which involves wage
distortions.
a. Remember there are 2 ways of wage
distortion?
b. Article (old) 124. Standards/Criteria for
minimum wage fixing. Where the
application of any prescribed wage
increase by virtue of a law or wage
order issued by any Regional Board
results in distortions of the wage
structure within an establishment, the
employer and the union shall negotiate
to correct the distortions. Any dispute
arising from wage distortions shall be
resolved through the grievance
procedure under their collective
bargaining agreement and, if it remains
unresolved, through voluntary
arbitration. Unless otherwise agreed by
the parties in writing, such dispute shall
be decided by the voluntary arbitrators
within ten (10) calendar days from the
time said dispute was referred to
voluntary arbitration.
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So if there is wage distortion and there is a
union, and there is a CBA, such wage distortion
is subject to the mandatory jurisdiction of the
VA. So there are 3 classes of cases.
2. Now, permissive jurisdiction as the law says,
Article 262. Jurisdiction over other labor
disputes. The Voluntary Arbitrator or panel of
Voluntary Arbitrators, upon agreement of the
parties, shall also hear and decide all other labor
disputes including unfair labor practices and
bargaining deadlocks.
ULP (224) original and exclusive jurisdiction of
the labor arbiter. But if the parties agree, they
can also submit to voluntary arbitration. That is
permissive jurisdiction.
Is there any limitation to permissive jurisdiction?
Can you submit any question at all?
o IT IS MY SUBMISSION THAT there is a
limit to voluntary arbitration provided it
is terms and conditions of work. If it is
not terms and conditions of work, then
the VA has no jurisdiction. If the CBA
agreed on something which are not
terms and conditions of work, but a
subject matter covered by commercial
law, covered by financial rehabilitation
and insolvency act of 2010, the VA will
have no jurisdiction over that.
o Suppose they agree, that mgt hereby
agrees in case of insolvency the union
will have 1st preference over anyone
else as to payment of wages, unpaid
wages, benefits and separation pay.
The union agrees, mgt agrees in case
mgt goes bankrupt. Nabankrupt man
run, na wala man, gipangembargo ang
mga property, wala mutuman ana, naa
na sa CBA. The union asks for VA. You
think the VA has jurisdiction over that?
I dont think so because that question
involves so many other parties, and
that is covered especially by law the
FRIA Act of 2010. So even if the parties
agree you cannot bring that to VA
because there are other parties
involved. So that is the limitation with
permissive jurisdiction because you will
read in so many reviewers ANY
SUBJECT MATTER UNDER THE SUN
can be brought to the VA just as long
as the parties agree. That is a
misleading statement, you cannot do
that. Mas ngilngig pa diay ang VA
kaysa sa korte, anybody can decide
bankruptcy cases, mortgages. You are
a bank (mortgagee) to whom the ER
mortgaged his property for a loan.
Unya embargohon sa VA ipambayad sa
sweldo sa mga EEs. *story sa
procedure* You are making the VA a
court of general jurisdiction. Do you
need to be a lawyer to be a voluntary
arbitrator? No you do not. Ikaw ray
magbuot ini, mas hawd pa ka sa
abugado, that cannot be.
o So remember if you come to an
agreement, ER and the union, on a
subject matter which is not a
mandatory subject of bargaining, is
that agreement valid? Yes. It is valid. It
has not been ruled here but in the US,
III Manresa 2014-2015
the US SC says it is valid. But the labor
tribunals do not have jurisdiction. For
as long as it is a particular subject
matter for which there was an
agreement does not require a particular
form, then the written CBA is sufficient
in form for bargaining. One of the
highest forms man nang CBA because
it is a public instrument. Dili manang
meeting of minds. Its in writing, and it
is a public instrument because the
notary public enters into the picture
there is an acknowledgement. Before
me, so and so, the president of
company and president of the union
appears, showing to me documentary
evidence of identity such as senior
citizen ID. that is acceptable as a
competent evidence of identity as long
as there is a picture, serial number
issued by the government, so it is a
public instrument. Then despite that, if
it is not a mandatory subject of
bargaining, it cannot be under the
jurisdiction either of the labor tribunals
or the VA.
Now, in the course of forming a contract, there are many
concessions. That is usually piece meal karong adlawa
nagagree mo sa wages, sunod adlaw nagagree mo sa
benefits, sunod kay sa inclusion of the disciplinary book.
Question: what is the status of those items which have
already been agreed upon and set aside to move to other
items of the discussion of the CBA? What is the status?
That happened in the case decided by the SC
where the ER invoked compliance with the wage
order because they agreed on such and such a
day on the particular increase that is set aside.
Then the wage order says those who have not
yet received an increase yet as of this day are
granted this much increase under the floor-wage
system. Before man mi sa deadline, so we have
complied. But the final agreement of the CBA
did not happen after 1 or 2 months after they
had agreed temporarily.
Question: when has the wage increase deemed
to have been agreed upon, at the end of the
signing, or during the precise day in the minutes
when they said they have agreed? SC says all
agreements prior to the final signing are
deemed to be TENTATIVE in nature, they can
still be changed around, amended, improved, or
traded for another concession from the parties.
The real agreement comes only upon the final
signing of the CBA, only upon the final
signing.
September 4, 2014
5:00-6:00
Kem
We took up yesterday the significance of economic
provisions. Economic provisions are the heart of a CBA. If
it does not have economic provisions and the union
agrees with it with the employer, is it a CBA? There are
many of that registered with the Department of Labor. It
is called CNA (Collective Negotiation Agreement)
and it is entered into by government employees unions
with the government. But it does not provide for
economic benefits. There was one CNA that tried it. Just
a little bit. They inserted a signing bonus. But what
happened? The COA disapproved of the practice and
refused to give its imprimatur in the audit post
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disbursement audit. The COA makes 2 audits. Who is
COA here? Pre disbursement audits and post
disbursement audits. Warningan na sila. Ayaw lage mo
ana. Salaries in government is a legislative issue. It
belongs to the province of Congress because the funds
that ultimately ******* are government funds from
taxation. Only Congress can appropriate how taxation
money can be spent. Not even PNOY can do it with a
DAP. Thats what the SC has said unanimously. But then
this particular government office went ahead. Why?
Because they think they are wise. They said this is not
purely government money. Is SSS taxation money? No it
is not. Its the money of the members which we collect
and we give to them the protection that the law entitles
them to. And they use this not more than 10% of the
moneys of SSS shall be spent in the administration of the
SSS. Why cant we use this little bonus since we have
extra? They were toying with the idea that since this
money is in the twilight zone, its neither private nor
purely public money, therefore we can play around with
it. That is the case now.
The government employees can only enter into
a CNA. It cannot enter into CBA. The soul of CBA is
economic provisions which government employees
cannot even make an agreement with government
superiors. They cannot provide for it. It is a question of
law. It reemphasizes the rock bottom truth that
eventhough you are in the government, just like the
private sector you receive a salary, salary is incidental.
Your relationship with the government is not contractual.
Your position there is based on law. And only the law can
appropriate the necessary compensation you receive, not
any agreement. And it is my submission that until they
amend the Constitution, this will not change. You have to
amend the Constitution in order to allow the employees
to enter into CBA with management, with their
administrators. Because otherwise, you are amending the
Constitution. There is no contractual relationship. It is a
relationship of trust. All government employees, public
officers hold in trust an office. Unsa may pasabot ana? Sa
binisaya pa, kana inyong gihuktan na katungdan, mao
nay tulubagon. Piniyalan ka. Mutubag ka. Kung pribado
ka mutubag ka sa imong asawa. Kung naa ka sa
gobyerno mutubag ka sa haring lungsod kay nagahulbot
ka ug katundangan aron mabulahan ang haring lungsod.
Read that case. SSS vs CA. I gave you the citation of that
case already. That is in the first set of notes in labor
organizations. A CNA cannot agree on bonus because
according to the SC that is an irregular disposition of
public funds. The funds in the SSS is not strictly
government funds because it is not derived from
taxation. But it is funds held in trust and it can only be
disposed in accordance with law. It is funds held in trust.
In trust for whom? In trust for the members. The
government by law is a guarantor of the benefits.
What is the status of a temporarily agreed provision of
the CBA in the course of bargaining negotiations? That is
Phil. Apparel Workers Union vs NLRC 106 SCRA
444 (1981). Specific provisions agreed upon in the
course of CBA negotiations do not constitute perfected
contracts. Nor are they to be understood as a perfected
CBA because perfected CBAs only exist upon the signing
thereof, subject to repudiation by the majority of the
bargaining unit.
Non-economic provision. One of the strong examples
of a non-economic provision is the so-called recognition
clause. Usually it is found in the beginning of the CBA.
Here is a recognition clause: This agreement shall apply
to the companys plant facilities and installations and to
any extension and expansion thereat. The CBA of regular
daily paid production workers of Indo Phil. Naniguro ba
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ang union. Now what happened? There was another
building constructed in the premises. This time this new
building is put up by Indo Phil. The old building that was
organized was a building of Indo Phil Textile. The other
one was acrylic. Separate corporation but the same
controlling interest. The union says because there is this
provision in the recognition clause, that new building is
now included in our CBA. They are part of the bargaining
unit. They cannot go to the process of selecting their own
representative. A petition for certification election filed
covering that new factory within the same premises
should not be entertained. Is the union correct? The SC
says no, its not correct. Separate corporation. Just
because you say our grasp is this is not binding on the
rest of the world. They can petition for certification
election because they are a separate entity which tells
you that the bargaining unit is not for the union or any of
the parties to a CBA to determine to expand or to
contract. It is fixed by certification. If you expand it to
cover people who were not included in the original
petition for certification election, what happens? You
violate their right to self-organization. If you contract it
smaller than what it actually is by coverage, then you
violate those who have already exercised their right to
self-organization. You have to remain faithful to the
certification order. That is non-economic provision.
But the most famous non-economic provision is the so-
called union security clauses. There are at least 4
union security clauses: open shop, closed shop,
maintenance membership clause, agency shop.
Open shop. The employer can accept anybody whether
he is a union member or not a union member. He can be
accepted and he does not have to form a union or join
one in order to continue in employment. In other words,
it is basically a workplace that is single employee contract
******.
Closed shop. The workplace is close to all would be
employees unless you first become a member of the
union. The employer can only accept you if you have
already become a member of the union. Continued
membership in the union is a condition for continued
employment. If you cease to become a member of the
union for one reason or another, then the union can
compel management to terminate you. That is closed
shop. That is very powerful according to CJ Enrique
Fernando. That is the highest victorious achievement of a
union, to get the employer to sign a closed shop
agreement.
Union shop. It is a variation of a closed shop. You dont
have to be a union member to be hired by management.
But after you become a regular, you are given a
reasonable period of time within which to apply with the
union. Maybe a month or 60 days. You must continue to
become a member as a condition for continued
employment. Should you cease to be one, the union can
compel management to terminate you.
Maintenance membership clause. You dont have to
be a union member to be hired by the employer. You
dont have to become a member of the union the
moment you become regular. But all members of the
union are obliged to continue their membership because
if they dont, then the union can ask management to
terminate you.
Agency clause. If you are within the bargaining unit
and you are not a member of the union but continue to
receive the benefits under the CBA negotiated by the
union, you are obliged to pay the union an agency fee
equivalent to the amount that the members pay as union
dues. That is mandated by 258 letter e, 2 nd paragraph:
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Employees of an appropriate collective bargaining unit
who are not members of the recognized collective
bargaining agent may be assessed a reasonable fee
equivalent to the dues and other fees paid by members
of the recognized collective bargaining agent, if such
non-union members accept the benefits under the
collective agreement. Provided, that the individual
authorization required under Article 242 [now 249],
paragraph (o) of this Code shall not apply to the
nonmembers of the recognized collective bargaining
agent. [The reference should be to Article 241, (now
248); this error in the Code is still uncorrect. CAA]
Is agency fee automatic? In other words, if you have
non-union members within the bargaining unit, they
automatically pay agency fees regardless of the presence
or absence of that provision in the CBA. Is 258 (e)
sufficient to grant the union the power to exact agency
fees? Or must it be provided in the CBA? There are many
who say that 258 grants the union that power and there
is no need for a provision in the CBA. I dont think that is
correct. Why? Because if that were so, the obligation of
non-union members to support the union is heavier than
the union members obligation to support the union. Even
for union members you cannot deduct union dues from
their salaries unless there is a union shop agreement
according to 113 (b):
Art 113. Wage Deduction No employer, in his own
behalf or in behalf of any person, shall make any
deduction from the wages of his employees, except: (b)
for union dues, in cases where the right of the worker or
his union to check-off has been recognized by the
employer or authorized in writing by the individual worker
concerned.
So there has to be a provision in the CBA, otherwise,
even if you are a known union member, you cannot be
deducted from your salary the union dues. If a non-union
member is deducted agency fee even if that is not yet
recognized by the employer in the CBA, then the
obligation of a non-union member to support the union is
more burdensome than the obligation of a union
member.
These union security clauses, whether it be closed shop,
union shop, maintenance of membership, agency fees,
are the exceptions to this rule. There are 3 known
exceptions:
1st exception. It cannot be applied to an employee
belonging to the bargaining unit who has already
exercised his/her right to self-organization. For
instance, you form a union and that union ran for
certification election, that union lost to another union.
This other union now signs the union shop agreement
with management. Can you be forced to become a
member of that union? No, you cannot because that
would be a violation of your right to self-organization. In
other words, a union shop agreement is applied
prospectively. Only to newcomers. It cannot be applied to
those who have already e In other words, a union shop
agreement is applied prospectively. Only to newcomers.
It cannot be applied to those who have already exercised
their right to self-organization.
2nd exception. There is this special law that was
passed which says that if your religion prohibits
you from joining unions, then you are not obliged
to join a union even if there is a union security
clause. The original decided case for that is Victoriano
vs. Elizalde Rope Workers Union (1974). And then it was
succeeded by so many decided cases repeating the same
ruling, Basa vs FOITAF 61 scra 93 (1974), Gonzales vs
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Central 139 scra 30 (1985), Kapatiran sa Meat Division vs
Pura Ferrer Calleja 162 scra 367 (1988).
Here comes the case of Kapatiran ng Meat Division. This
is Robina. Gocongwei wanted to bring in as many
workers that is Iglesia ni Cristo. And all of them they said
they do not want to join certification election. But then
the following election after 5 years, they found that they
are the majority so they filed a petition for certification
election, the INC, who by their tenets are supposed to be
prohibited from forming a union. So the incumbent filed a
motion to dismiss. These people are contradicting
themselves. What did the SC say? SC says I dont care
about what their religion says. There is no law prohibiting
them from filing a petition for certification election. What
their religion prohibits is not amounting to a legal
prohibition under the labor code. They can still file. Gidili
sa ilang religion, under the law it is not. So they were
allowed and they won and they became the exclusive
bargaining agent. Take note of the case.
3rd exception. 60 day freedom period. During the 60
day freedom period, you are no longer bound by the
union security clause. If you resign from the union, you
have every right because it is freedom. The union cannot
pursue you and ask management to fire you because you
are no longer a member of the union. However, during
the 60 day freedom period, the check-off clause part of
the union security clause is deemed operative. You are
still under the obligation to contribute to the union as a
member. You are no longer bound to be loyal, you can
form another union, but you must pay the union dues.
When does the duty to be check-off union dues end? This
is answered by the SC in the Volkswagen labor union
case. The plant of Volkswagen in Manila is unionized and
the union members in the middle of a CBA, they have a
******, overwhelming majority disaffiliated from the
federation. But the federation says, we are the
signatories of the union. The president and the high
officials of the federation are the signatories. So even
after they have disaffiliated, they say, the agreement
stands. So we still have the right to collect the union
dues. Thats what the officer said. The union members in
the local said do not check-off and give to the federation.
They all signed a request of management. So
management deducted from the salary but then held a
deduction in escrow. What is that? It is held by a 3rd
party and release to the rightful owner thereof upon the
happening of a condition. Is the contract still extant? Will
the contract be followed because it is the federation that
has the right to receive the union dues? The SC said,
fundamental to the principle of union dues and agency
fee is representation. For as long as you are representing
the bargaining unit, you are entitled to the union dues. If
you are no longer representing, you have no right to the
union dues. That is deeper than the contract. SC says
because you represent therefore you can enter into a
CBA and asked for union dues. Not the other way around.
So representation is the fundamental principle of union
dues. This helps you understand the ruling of the SC in
Weiss and Co. vs. NLRC. Here, the union says, we are the
union of daily paid production workers of XYZ
corporation. But then the practice of management is after
we finished the CBA, its ratified, all those in the
bargaining units, they received the signing bonus,
management automatically applies the benefits of the
CBA to the monthly paid. Ingon ang union those monthly
paid are free riders. Nakisakay lang. The object of agency
is to get rid of free riders. Therefore, they should be
made to pay agency fee to us. Kami nagtapok, nag
negotiate, nag strike unya sila nag tanaw2 ra, paghuman
na naa nay CBA, bulahan sila. Wala silay hago. Wa silay
malasakit. Hatag silag union dues. Is that correct? The
SC said you cannot extend the bargaining unit just
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because you have identity of benefits. SC says the
identity of benefits is not the basis to conclude that there
is representation. Identity of benefits lives to the
conclusion of the largest on the part of the employer.
Nakakuha sila sa benepisyo sa CBA dili tungod sa union.
Tungod kana sa luag kaayo na kasing2 sa ilang agaron.
Take note of those rulings. Weiss and Co. vs NLRC.
September 4, 2014
8:00-9:00
ADCJ
The union security clause. Very important point with
respect to the perspective of the law with respect to
dealing with the union security clauses is again and again
emphasized by the SC that the union security clause is
not interpreted, in case of doubt, in favor of labor. It is
one of the few exceptions to the rule that labor contracts,
in case of doubt, are intrpreted in favor of labor. Why is
that? A union Security Clause is a contractual limitation
on the right to self organization. No law, no institution,
no party should in one way or another influence an
employee on how he exercises his right to self
organization.
Whether or not he should join the union is his own
decision to make. It should be a free decision,
unencumbered by any forces pulling him either way. He
and he alone decides for himself. But then in 258[e] you
have this proviso: that an employer and exclusive
bargaining agent can agree that workers must join a
union.
So right away that is a limitation on the riht to self
organization. Prospectively applied, if you have not
exercised your right to self organization, now you are
directed by the contract to join the union who happens to
be the exclusive bargaining agent. How do you justify
that? You justify that by saying that basically, as an
organization the union, unless he has the exclusivity to
represent the bargaining unit, it cannot stand on equal
footing with management. So you give him this particular
arrangement that no one else can represent but the
union.
Now, this is the heart of labor relations. In the US, the
northern part of the country, theyre calling it now the
Roosevelt* because industry has just abandoned the
palce because labor relations is fully employed there.
Whereas in the south they have this so-called right to
work clause: no union can exclusively represent
someone if he chooses not to be represented bya union.
Even if it wins in a certification election, each worker has
the right to work by himself without representation of
any union. So no union can function. That is what they
called the right to work states: Florida, Louisiana,
Texas, New Mexico and that is where all the new car
manufacturing companies are.
So, union security clause is the heart of labor relations.
SC said, you do not interpret in case of doubt in favor of
labor. Ex: Lumber Case. The law says, unless someone is
already a member of the union, he cannot be admittted
in the company. He must continue to be a member of the
union as a condition for continued employment, but then
the clause stops there. When this guy resigned for this
union. The union asked that this guy be properly
terminated. He filed an illegal dismissal complaint. SC:
there is no specific phrase in the union security clause
that says that the union has the right to demand from
management that he remove. It just says: continued
membership is aconidtion of continued employment.
That clause is not a union security clause. That is just a
clause where the employer agrees that the union is the
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sole supplier of labor workers. So, key to a union security
clause that is effective is the EXPLICIT provision that if
the employee resigns or expelled from the union, the
union can ask the management to terminate the
employee. Otherwise, it is not a union security clause.
That is born out by the latest cases with respec t to the
enforcement to the union security clause:
1. Sanyo Fili Workers [1992]
2. Silva vs. NLRC [1997]
3. Malayan Samahan vs. Ramos
4. General Milling vs. Casio 615 SCRA 113 [2010]:
the SC has made it more difficult for the union
to compel the management to terminate an
employee. I dont know if you could understand
this, we dont have the time but if you can go
through 4 listed cases because the requirements
of the Supreme Court escalates
Actually it all started with Salonga vs. CIR. We already
discussed this before. The union says we dont like the
present leadership. The union resigned. Then the
personal manager told him, there is a union security
clause. If you resign, then management can be
demanded to terminate you. So, he changed his mind.
So he went back to the union saying I am revoking my
resignation. The union says too late! We already
accepted your resignation. Management dismissed him.
He files an unfair labor practice dismissal case. Was he
validly dismissed? SC: NO. When he filed his resignation
and the union accepted, the union had a full prerogatives
of a free organization. But subsequently, when he
revoked his resignation, that is considered an application
for membership again. When you accepted his
resignation, then he is out but when he asked to revoke
his resignation, that is akin to or similar to an application
for membership. Just like any organization, the
organization is free to accept any member according to
the criteria. But once a union has a union security clause,
the union is no longer free to have monopolistic
determination as to its criteria for acceptance of
membership. The State comes in and the State puts a
limit to the freedom of the union to determine the
criteria of its membership. Why? Because the union now
has the power to determine who work and who do not
work. So, when a union has a union security shop
agreement with the employer, he can only deny
membership anyone in the bargaining unit when it is a
grave and substantial reason. In this case, criticizing
union officers is a not a grave and substantial reason.
Therefore, the union acted arbitrarily and the union
violated the right to self organization of the employee.
Employer is ordered to reinstate.Now, the employer is
ordered to pay backwages but it is the union who must
reimburse to the employer as to backwages. What is the
liability of the employer? According to the Sc, the
employer acted in good faith, he has no liability.
Subsequently, the SC says no. Malayan Samahan vs.
Ramos the SC says, an employer that is faced with a
demand from a union to separate from the workplace an
employee who has been expelled in the union on the
strength of a union security clause, the obligation of that
employer is to conduct his own investigation because the
empployee has the rights under the LC to an
investigattion. So now the employer has the duty to
conduct investigation.
What is the object of the investigation? Malayan
Samahan [2000]: to determine w/n the employee was
granted the proper proceudre prescribed in the bylaws
of the union proposed that it investigates for his loyalty
and expulsion from the union. If the investigation has
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taken place, then, the employer should respect the
results of the investigation.
Now, here comes General Milling vs. Casio [2010]: again,
expulsion from the union. Demand from the union that
management must terminate employee. The employer
says, as a defense, As a defense, GMC contends that as
an employer, its only duty was to ascertain that IBM-
Local 31 accorded Casio, et al. due process; and, it is the
finding of the company that IBM-Local 31 did give Casio,
et al. the opportunity to answer the charges against
them, but they refused to avail themselves of such
opportunity. So, there was an investigation, the
employees did not cooperate. Therefore, they have done
their duty according to what the SC here says.
Now, SC says the employer must find out whether the
decision of the union to expel the employee is back up by
substantial evidence. That is a very dangerous criteria.
Because the employer has the duty to look at the merits
of the case and review the decision of the union. It has
the power now to substitute its judgment for the union. I
think at some point later, this must be corrected by
another decision. Because the union now will be
beholden by the management. Because the management
now reviews the decision. The union must be free from
management.
There is another subsequent case and involves PICOP.
60-day freedom period has not yet occurred. There is a
union vying for certification election against the
incumbent. It secured signatures from the employees
before the 60 day feedom period and there are those
who signed and they are members of incumbent. Petition
for certification election is filed during the 60-day
freedom peroid, but this signatures were obtained before
the 60-day period. The incumbent still won. Then the
incumbent suddenly investigated those disloyal to the
incumbent. They are disloyal because they signed in
favor of calling a certification election. They expelled.
They demanded the management to terminate them. So,
theres a case. Labor arbiter supports the union; NLRC
affirms the union. Is there a proper exercise of a union
security clause? Were these people disloyal? SC: splits
here in order to put down the security clause. There is no
disloyalty. Eventhough it is outside the freedom period,
the signatures were not in support of the petitioner. The
signatures were in support for calling a certification
election. That is splitting hairs isnt that? That is not an
act of disloyalty if you sign even outside the freedom
period. That is not disloyalty. It is disloyal if you sign in
support to petition for certification election of the
particular union outside the freedom period. But if you
sign a petition that an election should be held that is not
disloyalty to the union. Im pointing this out to tell you at
what wavelength the SC goes in order to nullify a union
security clause. Unless it is really clear, union security
clause stands.
Alright, a CBA has already been signed. What are the
requisites? Post signing of the CBA. Article 236. It should
be ratified by the majority of all workers in the bargaining
unit. That is very difficult to get. That is why there is this
institution called signing bonus. CBA provides for a
signing bonus. Is that a bribe? NO because it is granted
to all. Officers, members, anybody within the abrgaing
unit who signs is granted by this.
Now, the law requires that after the signing of the CBA
the secreatry of CBA attested by the president executes
an affidavit that:
1. CBA has been ratified by the majority of all in
the baragining unit;
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NOTE: it is not majority of the union; it is
majority of the principal of the bargaining
unit
2. That it has been posted in 2 conspicuous places
at the work place for all the bargaining unit to
examine
What happens if there is no ratification?
The negotiating panels of the union and the
management should go back to table and
try to hammer out another CBA that is
acceptable to the bargaining unit. Naa na
ganiy signatures sa tanan, sigurado na ang
affidavit of the secretary attested by the
President and it is brought to the Regional
office of the DOLE. And the employer
provides for the P1,000 registration fee. It
is the employers duty to pay the fee.
P1,000 regardless what kind of CBA it is
whether for 7,000 people or just 70 people.
The same registration fee.
Now, as to the effectivity of its provisions, the law says if
the CBA is concluded within 6 months from the expiration
of the previous CBA, then all the provisions of the new
CBA retroacts from the day it is concluded. If it is not
concluded within 6 months, let us say, 7 months or a
year, the retroactivity of the provisions of the CBA is for
the parties to decide.
Now, the SC in St. Lukes Medical Center vs. Torres 223
SCRA 779 [1993] said that if there is a style on the basis
of CBA etc, deadlock and the secretary of labor orders
the party to conclude the CBA and the order contains the
date of effectivity and the date of effectivity is retroactive
to the end of the preceding CBA even if conclusion is
beyond the 6-month period, that is valid. The secretay
can order the retoractivity even if the conclusion of the
CBA by his order is beyond the 6-month period.
Now, youof course know that another non-economic
provision such as a NO STRIKE CLAUSE. No strike clause
is the union agrees to refrain from going to strike for the
duration of the CBA. In other words, the CBA is
committed to grievance machinery for anything that it is
supposed to, but it cannot go to strike.
Now, jurisprudence says, the strike that is held and there
is a no strike clause is ony an economic strike not an
unfair labor practice strike grounded on ULP act on the
part of the management. That is not set aside by the
union when they signed the no strike clause. What the
union waives is no strike clause on economic strike. An
economic strike is one wage to obtain a demand which
the management is not oblige to grant under the Labor
Code. Example: So they want an increase managemnet in
wage. They cannot go to strike if they have a no strike
clause.But if the management commits ULP like it expels
or separates from service union leaders, that is ULP. That
does not prohibit the union for calling on strike even if
they have signed the no strike clause because dismissal
of the leaders that constitutes ULP. SC says if there ULP
strikes are included in the no strike clause, then that
could be equivalently license to management to contract
all manner of ULP will be included.
So, can a CBA that is not registered be a valid CBA?Does
it bar a petition for certification election? Technically
speaking it must. But then there are cases where the SC
admits of exceptions: Planters products vs. NLRC: an
unregistered CBA that has been operative for a
considerable period of time which CBA grants to the
bargaining unit employees substantial benefits
[substantial benefits means benefits clearly above labor
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standars benefits], then it is considered a valid and
legitimate CBA and it bars the petition for certification
election. So, is certification and registration necessary?
Yes because prima facie it is a bar.
Now, when can a certified CBA not bar a petition for
certification election? A certified CBA, meaning registered
with the DOLE after the requisites are filed, cannot bar a
petition for certification election if ti is so-called
premature CBA. What do you mean by premature CBA?
That is a CBA concluded during a 60-day freedom period
and is registered during that period. It cannot bar a
petition for certification election because it is premature.
What do you mean by premature? It is not yet effective.
It only follows after the expiration of the old CBA. That is
why the SC says that an employer bargains at his own
risk and concludes a CBA with the union during the
freedom period because the primacy during that period is
freedom. The law rectify* the petition for certification
election and it is supported by 25% of the bargaining unit
signatures, the arbiter has no discretion but to grant the
petition for certification election.
So if you are the employer, should you or should you not
bargain during the 60-day freedom period? It depends as
to the incumbent. Is the incumbent with the full support
of the employees? Does it have the majority? If it has,
then sign the CBA. The sooner you sign the more you are
at peace and the more you can devote time on your
business operations and concerns. But can CBA provide
rates lower than minimum of labor standards? CANNOT.
If it does then the union agreed for it such agreement is
known in labor standards as sweetheart contract. They
just provide for labor standards benefit. So it is a token.
Why would you go through the trouble of signing for
benefits when you already have under the law? obviously
it is for the benefit of the employer and that is ULP on
the part of the union and management.
Can a CBA provide for the benefits lower than the
previous CBA but higher than labor standards? Is it not a
violation of the prohibition against diminution of benefits?
That is the exception of the prohibition against diminution
of benefits because a union can decide to take a haircut
in return for another benefit. Ex: supposed the union
says ok we will agree for wage deduction , but you
management must sign a no lay-off policy paubos mi sa
sweldo pero walay mataktak sa trabaho. This is a
voluntary acceptance of the union and the bargaining
unit of lower wage pay. That is not a violation because
you are getting another benefit.
Manila Fashions vs. NLRC 264 SCRA 104 [1996]. They are
unionized; they were demanding for higher wages in the
negotiations of the CBA. Management says you cannot.
So they went to strike. They went on strike for 3 months.
After 3 months, kulob na ang mga kaldero sa mga tao,
the workers decide na magbalik na sa trabaho. The
employer now says sorry dili na mi! dili namo kaya
inyong demand! Naa bayay bag-ong wage order, dili
namo na kaya i-implement. The union now says, we
will agree to disregard the minimum wage order! so they
were now agreeing to something below the minimum
wage and they out that in the CBA. Condonation of non-
implementation of the new wage order. Ok for those
workers. They continued to work below the minimum
wage. How about katong mga bag-ong hires? Gikiha man
nila ang management. Management now says, the union
agreed for it in the CBA! SC says: YOU CANNOT
CONDONE for lower minimum wage order even if agree
upon. Remember this principle: labor standards rights
cannot be waived in the forward direction. It can only be
waived in the backward direction. The moment you file a
case for minimum wage that becomes a money claim.
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Now, you can waive it. But in the forward direction, you
cannot waive, not even the union in the CBA. So, the CBA
cannot condone the non-implementation of wage order.
These are the word s of the SC, the parties in a CBA
may establish such stipulations, clauses, terms and
conditions as they may deem convenient provided they
are not contrary to law, morals, good customs, public
order or public policy.[6] Section 3, Art. VIII, of the CBA
is a void provision because by agreeing to condone the
implementation of the Wage Order the parties thereby
contravened its mandate on wage increase of P12.00
effective 8 January 1991. Also, as stated by the Labor
Arbiter, it is only the Tripartite Wage Productivity Board
of the DOLE that could approve exemption of an
establishment from coverage of a Wage Order. So, you
cannot do that. No condonation.
Now, for your further expansion can you read SMC
employees union PTG vs. Confessor 262 SCRA 81 [1996].
This is the decision SC wishes to forget. Read. Read. The
issue here is how long or how many years should the
CBA be? The ponente of the decision quotes Boy Herrera
who used to be Senator and he is the author of Herrera-
Veloso Law [RA6715] who extended the span of the CBA
for 5 years but actually he says that it can be further
extended. The longer the CBA the better for the
incumbent. SC actually says you can actually extend the
CBA, but then if you follow the reasoning of Herrera you
will arrive at absurdity.
Ingon man si Herrera, 3 by 3 [check the illustration]. The
law is 3 by 2 man unta na from understanding. Before
the end of the 3rd year, the law allows you to renegotiate
the last 2 years even if you have already negotiated the 5
years because 5 years is a long time. The old period
under 875, the Industrial Peace Act is only 3 years. 6715,
the Herrera-Veloso Law introduced that provision 5 years,
aron madugay2 ba. Now, in the beginning here, you
negotiate for 5 years so there are already provisions for 5
years but the law grants you in that to renegotiate the
last 2 years and that is the duty to bargain here as long
as the bargaining proposals are submitted before the
end of the 3rd year. Now, Herrera says when you
negotiate here, you can negotiate for 3 years. Why? He
says when the time you reach the 60 days here, there
could be or there could not be a petition for certification
election.if there is a petition for certification election and
the incumbent is ousted, a new bargaining representative
takes over and his job is rendered easier, according to
Boy Herrera. He has one more contract year to
administer. So he will adjust. He is not under pressure to
produce new benefits whether better than previous. It is
an adjustment period for 1 year. Thats what Boy herrera
says. So, you can actually go 3 years, but actually the
freedom period is ony here [pointing out on the
illustration]. So, maihap ka, another 5 years. 1,2,3 pag-
abot dire magrenegotiate na sad na. it turns out that you
have 2 extra years. Di ba magkadugang na
magkadugang? Because this is a transition period. This is
not a contract of the new guy. He will want a new
contract. But according to Herrera, he has to meet this
out if he so wishes and he will not be under pressure to
produce immediately new and better benefits. Time to
adjust. I never heard that idea that a union needs time to
adjust. That is Boy Herrera who postulated that. This is
absurd! Thats why we never heard it discussed. But the
SC says that you can actually *** more than 5 years.
What is worse is if you go to the case of Espiritu, the SC
upheld what President Estrada said. 10 years , no CBA. It
is still the old CBA that would take effect and they
followed it. The SC upheld it. Thats the case of Phil.
Airline: 10 years no new CBA, the old one is still effective
in the name of saving the flood carrier of PAL. Again,
nobody talks about that decision.
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criminal, must be parties cannot be

-gutom na kaayo.- with the court. compelled.
End.
The decision of VA becomes final 10 days after a copy
September 10, 2014 of the decision has been received.
BIA Article 275 (262-A). Procedures.

Alright lets bring to a close the loose ends of collective The award or decision of the Voluntary
bargaining. Arbitrator or panel of Voluntary Arbitrators shall
contain the facts and the law on which it is
The decision of a voluntary arbitrator (VA) can be arrived based. It shall be final and executory after ten
at by position paper, submission of documentary or (10) calendar days from receipt of the copy of
testimonial evidence such as affidavits, there is no right the award or decision by the parties.
to cross examination before the VA. What happened to
the constitutional right to confront ones accusers? Is it COMPARE WITH:
not operative before the VA?
According to the SC it is not operative because Rule 43. Section 1. Scope. This Rule shall
that is your right when it comes to criminal apply to appeals from judgments or final orders
cases. The right to confront ones accusers of the Court of Tax Appeals and from awards,
during cross examination, that is n criminal judgments, final orders or resolutions of or
cases, not in administrative cases. authorized by any quasi-judicial agency in the
exercise of its quasi-judicial functions. Among
So the VA can decide cases based on position papers, it these agencies are the ... voluntary arbitrators
can call witnesses, the VA can conduct ocular inspections authorized by law
(like Labor Arbiter) to examine the place of work and
determine certain factual issues. Rule 43. Section 4. Period of appeal. The
appeal shall be taken within fifteen (15) days
But what is the difference between LA prerogative to from notice of the award, judgment, final order
conduct ocular inspection v. VA right to conduct ocular or resolution, or from the date of its last
inspection? publication, if publication is required by law for
its effectivity, or of the denial of petitioner's
Labor Arbiter (LA) Voluntary Arbitrator motion for new trial or reconsideration duly filed
(VA) in accordance with the governing law of the
Jurisdiction of LA is Discretion and jurisdiction court or agency a quo.
compulsory by law, its of the voluntary arbitrator
dictated by the labor code is by submission to the VA How do you reconcile?
because SM of case is
dictated to be under his G.R. No. 149050
jurisdiction, but as to third SAMAHAN NG MGA MANGGAGAWA
parties it does not have SA HYATT NUWHRAIN-APL,
compulsory processes of Petitioner,
law. - versus -
The LA can issue subpoena So he (VA) can go VOLUNTARY ARBITRATOR FROILAN
duces tecum. What is worksite, there are M. BACUNGAN and HYATT REGENCY
subpoena duces tecum? workers there, he can ask Respondents.
What is the difference with questions, but he cannot March 25, 2009
subpoena and subpoena compel EEs to answer modifying the Luzon Development Bank v.
duces tecum. because they do not Association of Luzon Development Bank
Ad testificandum submit to his jurisdiction. Employees case
in other words the
person who can Physical attributes of the Petitioner union argues that the proper remedy to assail a
identify the workplace, he can go decision of a voluntary arbitrator is a special civil action
documents. They there and take a look. Is for certiorari under Rule 65 of the Rules of Court and not
are documents, dili this really a dangerous an appeal via a petition for review under Rule 43.
mana maglakaw workplace? Naa bay mga Petitioner unions theory is based on the following
kalit didto sa korte trabahante diri nagbitay ratiocinations: first, the decision of the voluntary
*with matching anang tumoy kanang arbitrator is similar to the decisions rendered by the
wiggle * giayo dira sa building dira, National Labor Relations Commission (NLRC) and the
documents are hazardous na. Secretary of Labor and Employment, which become final
useless without nagkumbitay nang mga and executory after ten (10) calendar days from receipt
testimonial tao dira taas kaayo na of notice, in that the Labor Code expressly disallows an
evidence that is kabuhi ka ana madakilas appeal from their judgment or final order; second,
why it is the queen ka dira ana na ka punita Section 2 of Rule 43, which exempts judgments or final
of all evidences. sa ubos, sinsilyo nang orders issued under the Labor Code from an appeal via
Kana man ang utok nimo diha mabunal Rule 43, should apply with equal force to decisions of
basis sa sa na sa semento. Wala labor voluntary arbitrators.
pagdelay ug case. manay hardhat. For that
*hangtod matter I dont think the The petition lacks merit.
mamatay ang hardhat can save them.
witness stories* The question on the proper recourse to assail a decision
Unsaon man nimo He can ask questions, of a voluntary arbitrator has already been settled in
paglaban ana? cannot compel answers Luzon Development Bank v. Association of Luzon
Modes of discovery unless they submit to Development Bank Employees, where the Court held that
early on. If it is jurisdiction of VA. Third the decision or award of the voluntary arbitrator or panel
III Manresa 2014-2015 Page 68
 Lectures on Labor Relations
From the Lectures and Hand-Outs of Father Agustin L. Nazareno
of arbitrators should likewise be appealable to the Court
of Appeals, in line with the procedure outlines in Revised
Administrative Circular No. 1-95 (now embodied in Rule
43 of the 1997 Rules of Civil Procedure), just like those of
the quasi-judicial agencies, boards and commissions
enumerated therein, and consistent with the original
purpose to provide a uniform procedure for the appellate
review of adjudications of all quasi-judicial entities.
Subsequently, in Alcantara, Jr. v. Court of Appeals, and
Nippon Paint Employees Union v. Court of Appeals, the
Court reiterated the aforequoted ruling. In Alcantara, the
Court held that notwithstanding Section 2 of Rule 43, the
ruling in Luzon Development Bank still stands. The Court
explained, thus:
The provisions may be new to the Rules of Court but it is
far from being a new law. Section 2, Rules 42 of the 1997
Rules of Civil Procedure, as presently worded, is nothing
more but a reiteration of the exception to the exclusive
appellate jurisdiction of the Court of Appeals, as provided
for in Section 9, Batas Pambansa Blg. 129, as amended
by Republic Act No. 7902:
(3) Exclusive appellate jurisdiction over all final
judgments, decisions, resolutions, orders or awards of
Regional Trial Courts and quasi-judicial agencies,
instrumentalities, boards or commissions, including the
Securities and Exchange Commission, the Employees
Compensation Commission and the Civil Service
Commission, except those falling within the appellate
jurisdiction of the Supreme Court in accordance with the
Constitution, the Labor Code of the Philippines under
Presidential Decree No. 442, as amended, the provisions
of this Act and of subparagraph (1) of the third
paragraph and subparagraph (4) of the fourth paragraph
of Section 17 of the Judiciary Act of 1948.
The Court took into account this exception in Luzon
Development Bank but, nevertheless, held that the
decisions of voluntary arbitrators issued pursuant to the
Labor Code do not come within its ambit x x x
On some occasions, rules of procedure may be relaxed
and on that basis the Court of Appeals could have treated
the petition for certiorari as a petition for review under
Rule 43. However, as correctly pointed out by the Court
of Appeals, the petition was filed beyond the
reglementary period for filing a petition for review under
Rule 43. It is elementary in remedial law that the use of
an erroneous mode of appeal is a cause for dismissal of
the petition for certiorari and it has been repeatedly
stressed that a petition for certiorari is not a substitute
for a lost appeal.
In any event, the voluntary arbitrator did not commit any
reversible error in ruling that Dacles and Valencia were
employees of CSC, an independent contractor, whose
services may be terminated upon the expiration of the
contract for cleaning services between CSC and
respondent Hyatt. There is no dispute that Dacles and
Valencia performed services at respondent Hyatt
pursuant to the said contract. The Court affirms the
ruling of the voluntary arbitrator that Dacles and Valencia
cannot be considered as employees of respondent Hyatt
in the absence of evidence to prove that CSC had been
engaged in labor-only contracting.
The Court also affirms the voluntary arbitrators findings
that Dalmacio and Dazo were project employees, whose
employment may be terminated only upon the closure of
the flower shop. Said findings are in accord with the
conditions of the employment contracts between
respondent Hyatt and the two employees.
III Manresa 2014-2015
Well-settled is the rule that findings of fact of
administrative agencies and quasi-judicial bodies which
have acquired expertise because their jurisdiction is
confined to specific matters, are generally accorded not
only great respect but even finality. They are binding
upon this Court unless there is a showing of grave abuse
of discretion or where it is clearly shown that they were
arrived at arbitrarily or in utter disregard of the evidence
on record.
The Luzon Development Bank case says, remember
before we only have 275 which says that the decision or
order of the VA becomes final 10 days from receipt of the
copy of the decision. So there is no appeal. Your only
remedy is rule 65 petition for certiorari, you begin a new
case. Thats your only remedy.
Now luzon Stevedoring case 1995 says from now on the
SC will not ___ the same in a petition for certiorari. This
court now delegates the CA to receive all petitions for
certiorari on VAs decision. So there is a devolution.
But then, the SC said after landmark ruling on Judiciary
Reorganization act that commanded the court to
promulgate new rules of court. They changed, they said
it will not be certiorari, but petition for review on
certiorari rule 43. Explicit, section 1. Decisions of VA go
to the CA for petition for review on certiorari.
What is the difference between Rule 65 and Rule 43?
You have taken civil procedure already, you are
now masters of the review process
Rule 65 has very narrow grounds it is grave
abuse of discretion as to amount to lack or
excess of jurisdiction. This is how narrow rule 65
is. Its an extraordinary remedy.
Rule 43 that is no longer a matter of right.
When you go from the MTC to RTC for appeal,
that is still a matter of right, correctible on any
error. When you go from RTC to CA, that is still
a matter of right. In other words, the higher
court can dismiss your case in one liner. What is
a one-liner decision? Dismissed for lack of
merit You just look for a mistake. For failure to
include a certification of non-forum shopping,
petition is dismissed
When the court by its rules degrades it from rule
65 to rule 43, it broadens the grounds. What are
the grounds now?
o Art. 229. Appeal. Decisions, awards, or
orders of the Labor Arbiter are final
and executory unless appealed to the
Commission by any or both parties
within ten (10) calendar days from
receipt of such decisions, awards, or
orders. Such appeal may be
entertained only on any of the
following grounds:
o If there is prima facie evidence of
abuse of discretion on the part of the
Labor Arbiter;
o If there is prima facie evidence of
abuse of discretion on the part of the
Labor Arbiter;
o If the decision, order or award was
secured through fraud or coercion,
including graft and corruption;
o If made purely on questions of law;
and
o If serious errors in the findings of facts
are raised which would cause grave or
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From the Lectures and Hand-Outs of Father Agustin L. Nazareno

irreparable damage or injury to the
appellant.
Why is it serious? Because if it
is not corrected, it will cause
grave irreparable injury to the
party.
How much time do you have, 15 days, or 10
days?
o If there is no appeal, final in 10 days
by then VA can issue writs of execution
because the VA like a judge can issue a
writ of execution.
o Who will execute the writ? Does he
have a sheriff? He can ask the sheriff
of regular LA or the Court sheriff. He
just has to compensate the sheriff so
that he can execute the decision.
o If you appeal, can you file MR with VA?
Yes. In samahan ng mga
manggagawa sa hyatt (see
case above).
1 and only 1 MR may be
allowed upon proper motion
and full payment of docket fee
within the reglementary
period, allow extension of 15
days within which to file a
petition for review
So you send notice to the VA
that you are appealing so that
he will not issue an order of
final entry of the judgement
or decision upon the lapse of
10 days.
Issue a notice, prepare the
petition for review on
certiorari and then you file it
with the CA after your motion
has been turned down for MR.
and by their submission you are constituted as
the VA of the case.
I should have brought here the equivalent of the
SCRA or PReport of voluntary arbitration
decisions in the US. You also have there
jurisprudence. *stories on these jurisprudence
and El Curi and El Curi(?)*
Are voluntary arbitrators required to follow precedence?
Are decisions of previous VAs binding on others?
Normally it is not, but if it is sensical, the
succeeding VA should not decide the case in a
vacuum. It should refer to the old case and see
what is reasonable applicable to the new case.
You do not have to reinvent the work. So there
are certain issues and areas where VA can profit
from past determinations.
Now, there used to be a compilation of decisions
of VA that was begun, but that was discontinued
for lack of funds.
Why is there a compilation in the US?
Because the US SC has never review a decision
of the VA. Imagine that how powerful VA in the
US. They have not reversed a VAs decision in
the SC, that is why they take their VA seriously
kay mao ra man ning katapusan.
What is the reasoning? If you have chosen this
man or woman to decide your case, then he is
the last law, we dont have entry point. In the
US you cant even file a MR for the decision of
the VA. The moment he issues his decision, its
final. It has left him, no more, because it is
voluntary between the parties. Upon the
accomplishment of the purpose, no more, thats
it. Not even a MR can be filed.
They copied 275 (262-A) from the US Labor
Code.

So it is now appealable to the CA under rule 43, not rule

65. PLEASE BANTAYI NA. thats a finer point, but be
cognizant of that because REMEDIAL LAW IS THE HEART
OF LAWYERING. Substantive law makaresearch pa ka,
remedial law, kung mahimo KILAWA NANG BOOK,
MEMORIZE THE NUMBERS.

Then from CA, go to SC, Petition for review, question of

law. You cannot create a necessity on the 1st page your
narration, kinahanglan jud tanawon sa SC, ayaw nalang
jud, samok samok ka lang. *sentiments ni Father filing
appeal*

Now, when the SC finally decides and you file a MR and

the MR is denied, what happens after the decision has
become final and executory?
It is remanded to the National Conciliation and
Mediation board (NCMB). Sila napud nang
mangita kung buhi pa ba nang VA.
Then the VA will issue a writ of execution to
enforce the order or the decision. That is what
will happen.

There is a system for accrediting VA. If you will examine

the list of VA here in Mindanao, 0001 was our late dean
estrellado. You can be accredited as long as you
attend a 1 week seminar. You dont have to be a lawyer
to be a VA.

Can a non-accredited VA be appointed to be VA?

Yes, you dont need to be accredited, for as long
as parties agree. They can submit case to you

III Manresa 2014-2015 Page 70

 Lectures on Labor Relations
From the Lectures and Hand-Outs of Father Agustin L. Nazareno
Third Exam Coverage
SEPTEMBER 11, 2014 (5)
RULES on SOLICITATION
They do not put so much emphasis- the local reviewers,
local commentators on labor relations, they do not put so
much emphasis on rules of solicitation because they do
not understand the rules on unfair labor practice (ULP) as
applied to speech.
I remember very early in 1986 when I came from
graduate studies. I have a case of unfair labor practice
and it was the case of the principal of Holy Cross I think
she is dead now. She threatened a teacher- you are no
longer and educator because you have joined a union.
You should not do that. So I filed an ULP case against the
principal because there were witnesses.
The labor arbiter who decided who is also dead now-
labor arbiter Sancho. His famous phrase in many
decisions is, after he gives the side of management and
the side of the union and then he puts the issue: is the
contention of management correct?, tell that to the
marines. Thats his famous sentence. That was labor
arbiter Sancho.
So in this complaint he says tell that to the marines!
Theres freedom of speech. Youre an educator, you can
speak what is in your mind otherwise you are not an
educator he says.
So I have no choice I raised it to the NLRC. The NLRC
also said tell it to the marines. But then on motion for
reconsideration the NLRC revised its ruling. That is what
is being ruled at by the landmark case in Philippine
jurisprudence that is:
Insular Life Assurance Co. Lmtd., NAFTU vs.
Insurance Life Assurance Company (1971).
I. The respondents contend that the sending of the
letters, exhibits A and B, constituted a legitimate exercise
of their freedom of speech. We do not agree. The said
letters were directed to the striking employees
individually by registered special delivery mail at that
without being coursed through the Unions which were
representing the employees in the collective bargaining.
The act of an employer in notifying absent employees
individually during a strike following unproductive efforts
at collective bargaining that the plant would be operated
the next day and that their jobs were open for them
should they want to come in has been held to be an
unfair labor practice, as an active interference with the
right of collective bargaining through dealing with the
employees individually instead of through their collective
bargaining representatives. (31 Am. Jur. 563, citing NLRB
v. Montgomery Ward & Co. [CA 9th] 133 F2d 676, 146
ALR 1045)
Indeed, it is an unfair labor practice for an employer
operating under a collective bargaining agreement to
negotiate or to attempt to negotiate with his employees
individually in connection with changes in the agreement.
And the basis of the prohibition regarding individual
bargaining with the strikers is that although the union is
on strike, the employer is still under obligation to bargain
with the union as the employees' bargaining
representative (Melo Photo Supply Corporation vs.
National Labor Relations Board, 321 U.S. 332).
III Manresa 2014-2015
Indeed, some such similar actions are illegal as
constituting unwarranted acts of interference. Thus, the
act of a company president in writing letters to the
strikers, urging their return to work on terms inconsistent
with their union membership, was adjudged as
constituting interference with the exercise of his
employees' right to collective bargaining (Lighter
Publishing, CCA 7th, 133 F2d 621). It is likewise an act of
interference for the employer to send a letter to all
employees notifying them to return to work at a time
specified therein, otherwise new employees would be
engaged to perform their jobs. Individual solicitation of
the employees or visiting their homes, with the employer
or his representative urging the employees to cease
union activity or cease striking, constitutes unfair labor
practice. All the above-detailed activities are unfair labor
practices because they tend to undermine the concerted
activity of the employees, an activity to which they are
entitled free from the employer's molestation.1
Moreover, since exhibit A is a letter containing promises
of benefits to the employees in order to entice them to
return to work, it is not protected by the free speech
provisions of the Constitution (NLRB v. Clearfield Cheese
Co., Inc., 213 F2d 70). The same is true with exhibit B
since it contained threats to obtain replacements for the
striking employees in the event they did not report for
work on June 2, 1958. The free speech protection under
the Constitution is inapplicable where the expression of
opinion by the employer or his agent contains a promise
of benefit, or threats, or reprisal (31 Am. Jur. 544; NLRB
vs. Clearfield Cheese Co., Inc., 213 F2d 70; NLRB vs.
Goigy Co., 211 F2d 533, 35 ALR 2d 422).
Indeed, when the respondents offered reinstatement and
attempted to "bribe" the strikers with "comfortable cots,"
"free coffee and occasional movies," "overtime" pay for
"work performed in excess of eight hours," and
"arrangements" for their families, so they would abandon
the strike and return to work, they were guilty of strike-
breaking and/or union-busting and, consequently, of
unfair labor practice. It is equivalent to an attempt to
break a strike for an employer to offer reinstatement to
striking employees individually, when they are
represented by a union, since the employees thus offered
reinstatement are unable to determine what the
consequences of returning to work would be.
Likewise violative of the right to organize, form and join
labor organizations are the following acts: the offer of a
Christmas bonus to all "loyal" employees of a company
shortly after the making of a request by the union to
bargain; wage increases given for the purpose of
mollifying employees after the employer has refused to
bargain with the union, or for the purpose of inducing
striking employees to return to work; the employer's
promises of benefits in return for the strikers'
abandonment of their strike in support of their union; and
the employer's statement, made about 6 weeks after the
strike started, to a group of strikers in a restaurant to the
effect that if the strikers returned to work, they would
receive new benefits in the form of hospitalization,
accident insurance, profit-sharing, and a new building to
work in.2
Citing paragraph 5 of the complaint filed by the acting
prosecutor of the lower court which states that "the
officers and members of the complainant unions decided
to call off the strike and return to work on June 2, 1958
by reason of the injunction issued by the Manila Court of
First Instance," the respondents contend that this was
the main cause why the strikers returned to work and not
the letters, exhibits A and B. This assertion is without
merit. The circumstance that the strikers later decided to
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 Lectures on Labor Relations
From the Lectures and Hand-Outs of Father Agustin L. Nazareno
return to work ostensibly on account of the injunctive
writ issued by the Court of First Instance of Manila
cannot alter the intrinsic quality of the letters, which were
calculated, or which tended, to interfere with the
employees' right to engage in lawful concerted activity in
the form of a strike. Interference constituting unfair labor
practice will not cease to be such simply because it was
susceptible of being thwarted or resisted, or that it did
not proximately cause the result intended. For success of
purpose is not, and should not, be the criterion in
determining whether or not a prohibited act constitutes
unfair labor practice.
The test of whether an employer has interfered with and
coerced employees within the meaning of subsection (a)
(1) is whether the employer has engaged in conduct
which it may reasonably be said tends to interfere with
the free exercise of employees' rights under section 3 of
the Act, and it is not necessary that there be direct
evidence that any employee was in fact intimidated or
coerced by statements of threats of the employer if there
is a reasonable inference that anti-union conduct of the
employer does have an adverse effect on self-
organization and collective bargaining. (Francisco, Labor
Laws 1956, Vol. II, p. 323, citing NLRB v. Ford, C.A.,
1948, 170 F2d 735).
Besides, the letters, exhibits A and B, should not be
considered by themselves alone but should be read in the
light of the preceding and subsequent circumstances
surrounding them. The letters should be interpreted
according to the "totality of conduct doctrine,"
... whereby the culpability of an employer's remarks were
to be evaluated not only on the basis of their implicit
implications, but were to be appraised against the
background of and in conjunction with collateral
circumstances. Under this "doctrine" expressions of
opinion by an employer which, though innocent in
themselves, frequently were held to be culpable because
of the circumstances under which they were uttered, the
history of the particular employer's labor relations or anti-
union bias or because of their connection with an
established collateral plan of coercion or interference.
(Rothenberg on Relations, p. 374, and cases cited
therein.)
It must be recalled that previous to the petitioners'
submission of proposals for an amended renewal of their
respective collective bargaining agreements to the
respondents, the latter hired Felipe Enage and Ramon
Garcia, former legal counsels of the petitioners, as
personnel manager and assistant corporate secretary,
respectively, with attractive compensations. After the
notice to strike was served on the Companies and
negotiations were in progress in the Department of
Labor, the respondents reclassified 87 employees as
supervisors without increase in salary or in responsibility,
in effect compelling these employees to resign from their
unions. And during the negotiations in the Department of
Labor, despite the fact that the petitioners granted the
respondents' demand that the former drop their demand
for union shop and in spite of urgings by the conciliators
of the Department of Labor, the respondents adamantly
refused to answer the Unions' demands en toto.
Incidentally, Enage was the chairman of the negotiating
panel for the Companies in the collective bargaining
between the former and the Unions. After the petitioners
went to strike, the strikers were individually sent copies
of exhibit A, enticing them to abandon their strike by
inducing them to return to work upon promise of special
privileges. Two days later, the respondents, thru their
president and manager, respondent Jose M. Olbes,
brought three truckloads of non-strikers and others,
III Manresa 2014-2015
escorted by armed men, who, despite the presence of
eight entrances to the three buildings occupied by the
Companies, entered thru only one gate less than two
meters wide and in the process, crashed thru the picket
line posted in front of the premises of the Insular Life
Building. This resulted in injuries on the part of the
picketers and the strike-breakers.lwph1.t Then the
respondents brought against the picketers criminal
charges, only three of which were not dismissed, and
these three only for slight misdemeanors. As a result of
these criminal actions, the respondents were able to
obtain an injunction from the court of first instance
restraining the strikers from stopping, impeding,
obstructing, etc. the free and peaceful use of the
Companies' gates, entrance and driveway and the free
movement of persons and vehicles to and from, out and
in, of the Companies' buildings. On the same day that the
injunction was issued, the letter, Exhibit B, was sent
again individually and by registered special delivery mail
to the strikers, threatening them with dismissal if they
did not report for work on or before June 2, 1958. But
when most of the petitioners reported for work, the
respondents thru a screening committee of which
Ramon Garcia was a member refused to admit 63
members of the Unions on the ground of "pending
criminal charges." However, when almost all were cleared
of criminal charges by the fiscal's office, the respondents
adamantly refused admission to 34 officials and union
members. It is not, however, disputed that all-non-
strikers with pending criminal charges which arose from
the breakthrough incident of May 23, 1958 were
readmitted immediately by the respondents. Among the
non-strikers with pending criminal charges who were
readmitted were Generoso Abella, Enrique Guidote,
Emilio Carreon, Antonio Castillo, Federico Barretto,
Manuel Chuidian and Nestor Cipriano. And despite the
fact that the fiscal's office found no probable cause
against the petitioning strikers, the Companies adamantly
refused admission to them on the pretext that they
committed "acts inimical to the interest of the
respondents," without stating specifically the inimical acts
allegedly committed. They were soon to admit, however,
that these alleged inimical acts were the same criminal
charges which were dismissed by the fiscal and by the
courts..
Verily, the above actuations of the respondents before
and after the issuance of the letters, exhibit A and B,
yield the clear inference that the said letters formed of
the respondents scheme to preclude if not destroy
unionism within them.
To justify the respondents' threat to dismiss the strikers
and secure replacements for them in order to protect and
continue their business, the CIR held the petitioners'
strike to be an economic strike on the basis of exhibit 4
(Notice of Strike) which states that there was a "deadlock
in collective bargaining" and on the strength of the
supposed testimonies of some union men who did not
actually know the very reason for the strike. It should be
noted that exhibit 4, which was filed on January 27,
1958, states, inter alia:
TO: BUREAU OF LABOR RELATIONS
DEPARTMENT OF LABOR
MANILA
Thirty (30) days from receipt of this notice by the Office,
this [sic] unions intends to go on strike against
THE INSULAR LIFE ASSURANCE CO., LTD.
Plaza Moraga, Manila
THE FGU INSURANCE GROUP
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Plaza Moraga, Manila
INSULAR LIFE BUILDING ADMINISTRATION
Plaza Moraga, Manila .
for the following reason: DEADLOCK IN COLLECTIVE
BARGAINING...
However, the employees did not stage the strike after the
thirty-day period, reckoned from January 27, 1958. This
simply proves that the reason for the strike was not the
deadlock on collective bargaining nor any lack of
economic concessions. By letter dated April 15, 1958, the
respondents categorically stated what they thought was
the cause of the "Notice of Strike," which so far as
material, reads:
3. Because you did not see fit to agree with our position
on the union shop, you filed a notice of strike with the
Bureau of Labor Relations on 27 January 1958, citing
`deadlock in collective bargaining' which could have been
for no other issue than the union shop." (exhibit 8, letter
dated April 15, 1958.)
The strike took place nearly four months from the date
the said notice of strike was filed. And the actual and
main reason for the strike was, "When it became crystal
clear the management double crossed or will not
negotiate in good faith, it is tantamount to refusal
collectively and considering the unfair labor practice in
the meantime being committed by the management such
as the sudden resignation of some unionists and [who]
became supervisors without increase in salary or change
in responsibility, such as the coercion of employees,
decided to declare the strike." (tsn., Oct. 14, 1958, p.
14.) The truth of this assertion is amply proved by the
following circumstances: (1) it took the respondents six
(6) months to consider the petitioners' proposals, their
only excuse being that they could not go on with the
negotiations if the petitioners did not drop the demand
for union shop (exh. 7, respondents' letter dated April 7,
1958); (2) when the petitioners dropped the demand for
union shop, the respondents did not have a counter-offer
to the petitioners' demands. Sec. 14 of Rep. Act 875
required the respondents to make a reply to the
petitioners' demands within ten days from receipt
thereof, but instead they asked the petitioners to give a
"well reasoned, workable formula which takes into
account the financial position of the group companies."
(tsn., Sept. 8, 1958, p. 62; tsn., Feb. 26, 1969, p. 49.)
II. Exhibit H imposed three conditions for readmission of
the strikers, namely: (1) the employee must be interested
in continuing his work with the group companies; (2)
there must be no criminal charges against him; and (3)
he must report for work on June 2, 1958, otherwise he
would be replaced. Since the evidence shows that all the
employees reported back to work at the respondents'
head office on June 2, 1953, they must be considered as
having complied with the first and third conditions.
Our point of inquiry should therefore be directed at
whether they also complied with the second condition. It
is not denied that when the strikers reported for work on
June 2, 1958, 63 members of the Unions were refused
readmission because they had pending criminal charges.
However, despite the fact that they were able to secure
their respective clearances 34 officials and union
members were still refused readmission on the alleged
ground that they committed acts inimical to the
Companies. It is beyond dispute, however, that non-
strikers who also had criminal charges pending against
them in the fiscal's office, arising from the same incidents
whence the criminal charges against the strikers evolved,
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were readily readmitted and were not required to secure
clearances. This is a clear act of discrimination practiced
by the Companies in the process of rehiring and is
therefore a violation of sec. 4(a) (4) of the Industrial
Peace Act.
The respondents did not merely discriminate against all
the strikers in general. They separated the active from
the less active unionists on the basis of their militancy, or
lack of it, on the picket lines. Unionists belonging to the
first category were refused readmission even after they
were able to secure clearances from the competent
authorities with respect to the criminal charges filed
against them. It is significant to note in this connection
that except for one union official who deserted his union
on the second day of the strike and who later
participated in crashing through the picket lines, not a
single union officer was taken back to work.
Discrimination undoubtedly exists where the record
shows that the union activity of the rehired strikers has
been less prominent than that of the strikers who were
denied reinstatement.
So is there an unfair labor practice where the employer,
although authorized by the Court of Industrial Relations
to dismiss the employees who participated in an illegal
strike, dismissed only the leaders of the strikers, such
dismissal being evidence of discrimination against those
dismissed and constituting a waiver of the employer's
right to dismiss the striking employees and a condonation
of the fault committed by them." (Carlos and Fernando,
Labor and Social Legislation, p. 62, citing Phil. Air Lines,
Inc. v. Phil. Air Lines Emloyees Association, L-8197, Oct.
31, 1958.)
It is noteworthy that perhaps in an anticipatory effort
to exculpate themselves from charges of discrimination in
the readmission of strikers returning to work the
respondents delegated the power to readmit to a
committee. But the respondent Olbes had chosen Vicente
Abella, chief of the personnel records section, and Ramon
Garcia, assistant corporate secretary, to screen the
unionists reporting back to work. It is not difficult to
imagine that these two employees having been
involved in unpleasant incidents with the picketers during
the strike were hostile to the strikers. Needless to say,
the mere act of placing in the hands of employees hostile
to the strikers the power of reinstatement, is a form of
discrimination in rehiring.
Delayed reinstatement is a form of discrimination in
rehiring, as is having the machinery of reinstatement in
the hands of employees hostile to the strikers, and
reinstating a union official who formerly worked in a
unionized plant, to a job in another mill, which was
imperfectly organized. (Morabe, The Law on Strikes, p.
473, citing Sunshine Mining Co., 7 NLRB 1252; Cleveland
Worsted Mills, 43 NLRB 545; emphasis supplied.)
Equally significant is the fact that while the management
and the members of the screening committee admitted
the discrimination committed against the strikers, they
tossed back and around to each other the responsibility
for the discrimination. Thus, Garcia admitted that in
exercising for the management the authority to screen
the returning employees, the committee admitted the
non-strikers but refused readmission to the strikers (tsn.,
Feb. 6, 1962, pp. 15-19, 23-29). Vicente Abella, chairman
of the management's screening committee, while
admitting the discrimination, placed the blame therefor
squarely on the management (tsn., Sept. 20, 1960, pp.
7-8, 14-18). But the management, speaking through the
respondent Olbes, head of the Companies, disclaimed
responsibility for the discrimination. He testified that "The
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From the Lectures and Hand-Outs of Father Agustin L. Nazareno
decision whether to accept or not an employee was left in
the hands of that committee that had been empowered
to look into all cases of the strikers." (tsn., Sept. 6, 1962,
p. 19.)
Of course, the respondents through Ramon Garcia
tried to explain the basis for such discrimination by
testifying that strikers whose participation in any alleged
misconduct during the picketing was not serious in nature
were readmissible, while those whose participation was
serious were not. (tsn., Aug. 4, 1961, pp. 48-49, 56). But
even this distinction between acts of slight misconduct
and acts of serious misconduct which the respondents
contend was the basis for either reinstatement or
discharge, is completely shattered upon a cursory
examination of the evidence on record. For with the
exception of Pascual Esquillo whose dismissal sent to the
other strikers cited the alleged commission by them of
simple "acts of misconduct."
III. Anent the third assignment of error, the record shows
that not a single dismissed striker was given the
opportunity to defend himself against the supposed
charges against him. As earlier mentioned, when the
striking employees reported back for work on June 2,
1958, the respondents refused to readmit them unless
they first secured the necessary clearances; but when all,
except three, were able to secure and subsequently
present the required clearances, the respondents still
refused to take them back. Instead, several of them later
received letters from the respondents in the following
stereotyped tenor:
This will confirm the termination of your employment
with the Insular Life-FGU Insurance Group as of 2 June
1958.
The termination of your employment was due to the fact
that you committed acts of misconduct while picketing
during the last strike. Because this may not constitute
sufficient cause under the law to terminate your
employment without pay, we are giving you the amount
of P1,930.32 corresponding to one-half month pay for
every year of your service in the Group Company.
Kindly acknowledge receipt of the check we are sending
herewith.
Very truly yours,
(Sgd.) JOSE M. OLBES
President, Insurance Life
Acting President, FGU.
The respondents, however, admitted that the alleged
"acts of misconduct" attributed to the dismissed strikers
were the same acts with which the said strikers were
charged before the fiscal's office and the courts. But all
these charges except three were dropped or dismissed.
Indeed, the individual cases of dismissed officers and
members of the striking unions do not indicate sufficient
basis for dismissal.
Emiliano Tabasondra, vice-president of the petitioner FGU
Insurance Group Workers & Employees Association-
NATU, was refused reinstatement allegedly because he
did not report for duty on June 2, 1958 and, hence, had
abandoned his office. But the overwhelming evidence
adduced at the trial and which the respondents failed to
rebut, negates the respondents' charge that he had
abandoned his job. In his testimony, corroborated by
many others, Tabasondra particularly identified the
management men to whom he and his group presented
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themselves on June 2, 1958. He mentioned the
respondent Olbes' secretary, De Asis, as the one who
received them and later directed them when Olbes
refused them an audience to Felipe Enage, the
Companies' personnel manager. He likewise categorically
stated that he and his group went to see Enage as
directed by Olbes' secretary. If Tabasondra were not
telling the truth, it would have been an easy matter for
the respondents to produce De Asis and Enage who
testified anyway as witnesses for the respondents on
several occasions to rebut his testimony. The
respondents did nothing of the kind. Moreover,
Tabasondra called on June 21, 1958 the respondents'
attention to his non-admission and asked them to inform
him of the reasons therefor, but instead of doing so, the
respondents dismissed him by their letter dated July 10,
1958. Elementary fairness required that before being
dismissed for cause, Tabasondra be given "his day in
court."
At any rate, it has been held that mere failure to report
for work after notice to return, does not constitute
abandonment nor bar reinstatement. In one case, the
U.S. Supreme Court held that the taking back of six of
eleven men constituted discrimination although the five
strikers who were not reinstated, all of whom were
prominent in the union and in the strike, reported for
work at various times during the next three days, but
were told that there were no openings. Said the Court:
... The Board found, and we cannot say that its finding is
unsupported, that, in taking back six union men, the
respondent's officials discriminated against the latter on
account of their union activities and that the excuse given
that they did not apply until after the quota was full was
an afterthought and not the true reason for the
discrimination against them. (NLRB v. Mackay Radio &
Telegraph Co., 304 U.S. 333, 58 Sup. Ct. 904, 82 L. Ed.
1381) (Mathews, Labor Relations and the Law, p. 725,
728)
The respondents' allegation that Tabasondra should have
returned after being refused readmission on June 2,
1958, is not persuasive. When the employer puts off
reinstatement when an employee reports for work at the
time agreed, we consider the employee relieved from the
duty of returning further.
Sixto Tongos was dismissed allegedly because he
revealed that despite the fact that the Companies spent
more than P80,000 for the vacation trips of officials, they
refused to grant union demands; hence, he betrayed his
trust as an auditor of the Companies. We do not find this
allegation convincing. First, this accusation was
emphatically denied by Tongos on the witness stand.
Gonzales, president of one of the respondent Companies
and one of the officials referred to, took a trip abroad in
1958. Exchange controls were then in force, and an
outgoing traveller on a combined business and vacation
trip was allowed by the Central Bank, per its Circular 52
(Notification to Authorized Agent Banks) dated May 9,
1952, an allocation of $1,000 or only P2,000, at the
official rate of two pesos to the dollar, as pocket money;
hence, this was the only amount that would appear on
the books of the Companies. It was only on January 21,
1962, per its Circular 133 (Notification to Authorized
Agent Banks), that the Central Bank lifted the exchange
controls. Tongos could not therefore have revealed an
amount bigger than the above sum. And his competence
in figures could not be doubted considering that he had
passed the board examinations for certified public
accountants. But assuming arguendo that Tongos indeed
revealed the true expenses of Gonzales' trip which the
respondents never denied or tried to disprove his
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statements clearly fall within the sphere of a unionist's
right to discuss and advertise the facts involved in a labor
dispute, in accordance with section 9(a)(5) of Republic
Act 875 which guarantees the untramelled exercise by
striking employees of the right to give "publicity to the
existence of, or the fact involved in any labor dispute,
whether by advertising, speaking, patrolling or by any
method not involving fraud or violence." Indeed, it is not
only the right, it is as well the duty, of every unionist to
advertise the facts of a dispute for the purpose of
informing all those affected thereby. In labor disputes,
the combatants are expected to expose the truth before
the public to justify their respective demands. Being a
union man and one of the strikers, Tongos was expected
to reveal the whole truth on whether or not the
respondent Companies were justified in refusing to
accede to union demands. After all, not being one of the
supervisors, he was not a part of management. And his
statement, if indeed made, is but an expression of free
speech protected by the Constitution.
Free speech on both sides and for every faction on any
side of the labor relation is to me a constitutional and
useful right. Labor is free ... to turn its publicity on any
labor oppression, substandard wages, employer
unfairness, or objectionable working conditions. The
employer, too, should be free to answer and to turn
publicity on the records of the leaders of the unions
which seek the confidence of his men ... (Concurring
opinion of Justice Jackson in Thomas v. Collins, 323 U.S.
516, 547, 65 Sup. Ct. 315, 89 L. Ed. 430.) (Mathews,
Labor Relations and the Law, p. 591.)
The respondents also allege that in revealing certain
confidential information, Tongos committed not only a
betrayal of trust but also a violation of the moral
principles and ethics of accountancy. But nowhere in the
Code of Ethics for Certified Public Accountants under the
Revised Rules and Regulations of the Board of
Accountancy formulated in 1954, is this stated. Moreover,
the relationship of the Companies with Tongos was that
of an employer and not a client. And with regard to the
testimonies of Juan Raymundo and Antolin Carillo, both
vice-presidents of the Trust Insurance Agencies, Inc.
about the alleged utterances made by Tongos, the lower
court should not have given them much weight. The firm
of these witnesses was newly established at that time
and was still a "general agency" of the Companies. It is
not therefore amiss to conclude that they were more
inclined to favor the respondents rather than Tongos.
Pacifico Ner, Paulino Bugay, Jose Garcia, Narciso Dao,
Vicente Alsol and Hermenigildo Ramirez, opined the lower
court, were constructively dismissed by non-readmission
allegedly because they not only prevented Ramon Garcia,
assistant corporate secretary, and Vicente Abella, chief of
the personnel records section of the Companies, from
entering the Companies' premises on May 21, 1958, but
they also caused bruises and abrasions on Garcia's chest
and forehead acts considered inimical to the interest of
the respondents. The Unions, upon the other hand, insist
that there is complete lack of evidence that Ner took part
in pushing Garcia; that it was Garcia who elbowed his
way through the picket lines and therefore Ner shouted
"Close up," which the picketers did; and that Garcia
tossed Paulino Bugay's placard and a fight ensued
between them in which both suffered injuries. But despite
these conflicting versions of what actually happened on
May 21, 1958, there are grounds to believe that the
picketers are not responsible for what
happened.lwph1.t The picketing on May 21, 1958, as the fiscal's office, they were readily admitted, but those
reported in the police blotter, was peaceful (see Police
blotter report, exh. 3 in CA-G.R. No. 25991-R of the Court
of Appeals, where Ner was acquitted). Moreover,
III Manresa 2014-2015
although the Companies during the strike were holding
offices at the Botica Boie building at Escolta, Manila;
Tuason Building at San Vicente Street, Manila; and Ayala,
Inc. offices at Makati, Rizal, Garcia, the assistant
corporate secretary, and Abella, the chief of the
personnel records section, reported for work at the
Insular Life Building. There is therefore a reasonable
suggestion that they were sent to work at the latter
building to create such an incident and have a basis for
filing criminal charges against the petitioners in the
fiscal's office and applying for injunction from the court of
first instance. Besides, under the circumstances the
picketers were not legally bound to yield their grounds
and withdraw from the picket lines. Being where the law
expects them to be in the legitimate exercise of their
rights, they had every reason to defend themselves and
their rights from any assault or unlawful transgression.
Yet the police blotter, about adverted to, attests that they
did not resort to violence.
The heated altercations and occasional blows exchanged
on the picket line do not affect or diminish the right to
strike. Persuasive on this point is the following
commentary: .
We think it must be conceded that some disorder is
unfortunately quite usual in any extensive or long drawn
out strike. A strike is essentially a battle waged with
economic weapons. Engaged in it are human beings
whose feelings are stirred to the depths. Rising passions
call forth hot words. Hot words lead to blows on the
picket line. The transformation from economic to physical
combat by those engaged in the contest is difficult to
prevent even when cool heads direct the fight. Violence
of this nature, however much it is to be regretted, must
have been in the contemplation of the Congress when it
provided in Sec. 13 of Act 29 USCA Sec. 163, that
nothing therein should be construed so as to interfere
with or impede or diminish in any way the right to strike.
If this were not so, the rights afforded to employees by
the Act would indeed be illusory. We accordingly recently
held that it was not intended by the Act that minor
disorders of this nature would deprive a striker of the
possibility of reinstatement. (Republic Steel Corp. v. N. L.
R. B., 107 F2d 472, cited in Mathews, Labor Relations
and the Law, p. 378)
Hence the incident that occurred between Ner, et al. and
Ramon Garcia was but a necessary incident of the strike
and should not be considered as a bar to reinstatement.
Thus it has been held that:
Fist-fighting between union and non-union employees in
the midst of a strike is no bar to reinstatement. (Teller,
Labor Disputes and Collective Bargaining, Vol. II, p. 855
citing Stackpole Carbon, Co. 6 NLRB 171, enforced 105
F2d 167.)
Furthermore, assuming that the acts committed by the
strikers were transgressions of law, they amount only to
mere ordinary misdemeanors and are not a bar to
reinstatement.
In cases involving misdemeanors the board has generally
held that unlawful acts are not bar to reinstatement.
(Teller, Labor Disputes and Collective Bargaining, Id., p.
854, citing Ford Motor Company, 23 NLRB No. 28.)
Finally, it is not disputed that despite the pendency of
criminal charges against non-striking employees before
strikers who had pending charges in the same office were
refused readmission. The reinstatement of the strikers is
thus in order.
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[W]here the misconduct, whether in reinstating persons
equally guilty with those whose reinstatement is opposed,
or in other ways, gives rise to the inference that union
activities rather than misconduct is the basis of his
[employer] objection, the Board has usually required
reinstatement." (Teller, supra, p. 853, citing the Third
Annual Report of NLRB [1938], p. 211.)
Lastly, the lower Court justified the constructive dismissal
of Florencio Ibarra allegedly because he committed acts
inimical to the interest of the respondents when, as
president of the FGU Workers and Employees
Association-NATU, he advised the strikers that they could
use force and violence to have a successful picket and
that picketing was precisely intended to prevent the non-
strikers and company clients and customers from
entering the Companies' buildings. Even if this were true,
the record discloses that the picket line had been
generally peaceful, and that incidents happened only
when management men made incursions into and tried
to break the picket line. At any rate, with or without the
advice of Ibarra, picketing is inherently explosive. For, as
pointed out by one author, "The picket line is an
explosive front, charged with the emotions and fierce
loyalties of the union-management dispute. It may be
marked by colorful name-calling, intimidating threats or
sporadic fights between the pickets and those who pass
the line." (Mathews, Labor Relations and the Law, p.
752). The picket line being the natural result of the
respondents' unfair labor practice, Ibarra's misconduct is
at most a misdemeanor which is not a bar to
reinstatement. Besides, the only evidence presented by
the Companies regarding Ibarra's participation in the
strike was the testimony of one Rodolfo Encarnacion, a
former member of the board of directors of the petitioner
FGU Insurance Group Workers and Employees Union-
NATU, who became a "turncoat" and who likewise
testified as to the union activities of Atty. Lacsina, Ricardo
Villaruel and others (annex C, Decision, p. 27) another
matter which emphasizes the respondents' unfair labor
practice. For under the circumstances, there is good
ground to believe that Encarnacion was made to spy on
the actvities of the union members. This act of the
respondents is considered unjustifiable interference in the
union activities of the petitioners and is unfair labor
practice.
It has been held in a great number of decisions at
espionage by an employer of union activities, or
surveillance thereof, are such instances of interference,
restraint or coercion of employees in connection with
their right to organize, form and join unions as to
constitute unfair labor practice.
... "Nothing is more calculated to interfere with, restrain
and coerce employees in the exercise of their right to
self-organization than such activity even where no
discharges result. The information obtained by means of
espionage is in valuable to the employer and can be used
in a variety of cases to break a union." The unfair labor
practice is committed whether the espionage is carried on
by a professional labor spy or detective, by officials or
supervisory employees of the employer, or by fellow
employees acting at the request or direction of the
employer, or an ex-employee..." (Teller, Labor Disputes
and Collective Bargaining, Vol. II, pp. 765-766, and cases
cited.) .
IV. The lower court should have ordered the
reinstatement of the officials and members of the Unions,
with full back wages from June 2, 1958 to the date of
their actual reinstatement to their usual employment.
Because all too clear from the factual and environmental
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milieu of this case, coupled with settled decisional law, is
that the Unions went on strike because of the unfair labor
practices committed by the respondents, and that when
the strikers reported back for work upon the invitation
of the respondents they were discriminatorily
dismissed. The members and officials of the Unions
therefore are entitled to reinstatement with back pay.
[W]here the strike was induced and provoked by
improper conduct on the part of an employer amounting
to an 'unfair labor practice,' the strikers are entitled to
reinstatement with back pay. (Rothenberg on Labor
Relations, p. 418.)
[A]n employee who has been dismissed in violation of the
provisions of the Act is entitled to reinstatement with
back pay upon an adjudication that the discharge was
illegal." (Id., citing Waterman S. S. Corp. v. N. L. R. B.,
119 F2d 760; N. L. R. B. v. Richter's Bakery, 140 F2d
870; N. L. R. B. v. Southern Wood Preserving Co., 135 F.
2d 606; C. G. Conn, Ltd. v. N. L. R. B., 108 F2d 390; N.
L. R. B. v. American Mfg. Co., 106 F2d 61; N. L. R. B. v.
Kentucky Fire Brick Co., 99 F2d 99.)
And it is not a defense to reinstatement for the
respondents to allege that the positions of these union
members have already been filled by replacements.
[W]here the employers' "unfair labor practice" caused or
contributed to the strike or where the 'lock-out' by the
employer constitutes an "unfair labor practice," the
employer cannot successfully urge as a defense that the
striking or lock-out employees position has been filled by
replacement. Under such circumstances, if no job
sufficiently and satisfactorily comparable to that
previously held by the aggrieved employee can be found,
the employer must discharge the replacement employee,
if necessary, to restore the striking or locked-out worker
to his old or comparable position ... If the employer's
improper conduct was an initial cause of the strike, all the
strikers are entitled to reinstatement and the dismissal of
replacement employees wherever necessary; ... . (Id., p.
422 and cases cited.)
A corollary issue to which we now address ourselves is,
from what date should the backpay payable to the
unionists be computed? It is now a settled doctrine that
strikers who are entitled to reinstatement are not entitled
to back pay during the period of the strike, even though
it is caused by an unfair labor practice. However, if they
offer to return to work under the same conditions just
before the strike, the refusal to re-employ or the
imposition of conditions amounting to unfair labor
practice is a violation of section 4(a) (4) of the Industrial
Peace Act and the employer is liable for backpay from the
date of the offer (Cromwell Commercial Employees and
Laborers Union vs. Court of Industrial Relations, L-19778,
Decision, Sept. 30, 1964, 12 SCRA 124; Id., Resolution
on motion for reconsideration, 13 SCRA 258; see also
Mathews, Labor Relations and the Law, p. 730 and the
cited cases). We have likewise ruled that discriminatorily
dismissed employees must receive backpay from the date
of the act of discrimination, that is, from the date of their
discharge (Cromwell Commercial Employees and Laborers
Union vs. Court of Industrial Relations, supra).
The respondents notified the petitioner strikers to report
back for work on June 2, 1958, which the latter did. A
great number of them, however, were refused
readmission because they had criminal charges against
them pending before the fiscal's office, although non-
strikers who were also facing criminal indictments were
readily readmitted. These strikers who were refused
readmission on June 2, 1958 can thus be categorized as
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discriminatorily dismissed employees and are entitled to
backpay from said date. This is true even with respect to
the petitioners Jose Pilapil, Paulino Bugay, Jr. and Jose
Garcia, Jr. who were found guilty only of misdemeanors
which are not considered sufficient to bar reinstatement
(Teller, Labor Disputes and Collective Bargaining, p. 854),
especially so because their unlawful acts arose during
incidents which were provoked by the respondents' men.
However, since the employees who were denied
readmission have been out of the service of the
Companies (for more than ten years) during which they
may have found other employment or other means of
livelihood, it is only just and equitable that whatever they
may have earned during that period should be deducted
from their back wages to mitigate somewhat the liability
of the company, pursuant to the equitable principle that
no one is allowed to enrich himself at the expense of
another (Macleod & Co. of the Philippines v. Progressive
Federation of Labor, 97 Phil. 205 [1955]).
The lower court gave inordinate significance to the
payment to and acceptance by the dismissed employees
of separation pay. This Court has ruled that while
employers may be authorized under Republic Act 1052 to
terminate employment of employees by serving the
required notice, or, in the absence thereof, by paying the
required compensation, the said Act may not be invoked
to justify a dismissal prohibited by law, e.g., dismissal for
union activities.
... While Republic Act No. 1052 authorizes a commercial
establishment to terminate the employment of its
employee by serving notice on him one month in
advance, or, in the absence thereof, by paying him one
month compensation from the date of the termination of
his employment, such Act does not give to the employer
a blanket authority to terminate the employment
regardless of the cause or purpose behind such
termination. Certainly, it cannot be made use of as a
cloak to circumvent a final order of the court or a scheme
to trample upon the right of an employee who has been
the victim of an unfair labor practice. (Yu Ki Lam, et al. v.
Nena Micaller, et al., 99 Phil. 904 [1956].)
Finally, we do not share the respondents' view that the
findings of fact of the Court of Industrial Relations are
supported by substantial and credible proof. This Court is
not therefore precluded from digging deeper into the
factual milieu of the case (Union of Philippine Education
Employees v. Philippine Education Company, 91 Phil. 93;
Lu Do & Lu Ym Corporation v. Philippine-Land-Air-Sea
Labor Union, 11 SCRA 134 [1964]).
V. The petitioners (15 of them) ask this Court to cite for
contempt the respondent Presiding Judge Arsenio
Martinez of the Court of Industrial Relations and the
counsels for the private respondents, on the ground that
the former wrote the following in his decision subject of
the instant petition for certiorari, while the latter quoted
the same on pages 90-91 of the respondents' brief: .
... Says the Supreme Court in the following decisions:
In a proceeding for unfair labor practice, involving a
determination as to whether or not the acts of the
employees concerned justified the adoption of the
employer of disciplinary measures against them, the
mere fact that the employees may be able to put up a
valid defense in a criminal prosecution for the same acts,
does not erase or neutralize the employer's right to
impose discipline on said employees. For it is settled that
not even the acquittal of an employee of the criminal
charge against him is a bar to the employer's right to
impose discipline on its employees, should the act upon
III Manresa 2014-2015
which the criminal charged was based constitute
nevertheless an activity inimical to the employer's
interest... The act of the employees now under
consideration may be considered as a misconduct which
is a just cause for dismissal. (Lopez, Sr., et al. vs.
Chronicle Publication Employees Ass'n. et al., G.R. No. L-
20179-81, December 28, 1964.) (emphasis supplied)
The two pertinent paragraphs in the above-cited decision
* which contained the underscored portions of the above
citation read however as follows:
Differently as regard the dismissal of Orlando Aquino and
Carmelito Vicente, we are inclined to uphold the action
taken by the employer as proper disciplinary measure. A
reading of the article which allegedly caused their
dismissal reveals that it really contains an insinuation
albeit subtly of the supposed exertion of political pressure
by the Manila Chronicle management upon the City
Fiscal's Office, resulting in the non-filing of the case
against the employer. In rejecting the employer's theory
that the dismissal of Vicente and Aquino was justified,
the lower court considered the article as "a report of
some acts and omissions of an Assistant Fiscal in the
exercise of his official functions" and, therefore, does
away with the presumption of malice. This being a
proceeding for unfair labor practice, the matter should
not have been viewed or gauged in the light of the
doctrine on a publisher's culpability under the Penal
Code. We are not here to determine whether the
employees' act could stand criminal prosecution, but only
to find out whether the aforesaid act justifies the
adoption by the employer of disciplinary measure against
them. This is not sustaining the ruling that the publication
in question is qualified privileged, but even on the
assumption that this is so, the exempting character
thereof under the Penal Code does not necessarily erase
or neutralize its effect on the employer's interest which
may warrant employment of disciplinary measure. For it
must be remembered that not even the acquittal of an
employee, of the criminal charges against him, is a bar to
the employer's right to impose discipline on its
employees, should the act upon which the criminal
charges was based constitute nevertheless an activity
inimical to the employer's interest.
In the herein case, it appears to us that for an employee
to publish his "suspicion," which actually amounts to a
public accusation, that his employer is exerting political
pressure on a public official to thwart some legitimate
activities on the employees, which charge, in the least,
would sully the employer's reputation, can be nothing but
an act inimical to the said employer's interest. And the
fact that the same was made in the union newspaper
does not alter its deleterious character nor shield or
protect a reprehensible act on the ground that it is a
union activity, because such end can be achieved without
resort to improper conduct or behavior. The act of the
employees now under consideration may be considered
as a misconduct which is a just cause for dismissal.**
(Emphasis ours)
It is plain to the naked eye that the 60 un-underscored
words of the paragraph quoted by the respondent Judge
do not appear in the pertinent paragraph of this Court's
decision in L-20179-81. Moreover, the first underscored
sentence in the quoted paragraph starts with "For it is
settled ..." whereas it reads, "For it must be remembered
...," in this Court's decision. Finally, the second and last
underlined sentence in the quoted paragraph of the
respondent Judge's decision, appears not in the same
paragraph of this Court's decision where the other
sentence is, but in the immediately succeeding
paragraph.
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 Lectures on Labor Relations
From the Lectures and Hand-Outs of Father Agustin L. Nazareno
This apparent error, however, does not seem to warrant
an indictment for contempt against the respondent Judge
and the respondents' counsels. We are inclined to believe
that the misquotation is more a result of clerical
ineptitude than a deliberate attempt on the part of the
respondent Judge to mislead. We fully realize how
saddled with many pending cases are the courts of the
land, and it is not difficult to imagine that because of the
pressure of their varied and multifarious work, clerical
errors may escape their notice. Upon the other hand, the
respondents' counsels have the prima facie right to rely
on the quotation as it appears in the respondent Judge's
decision, to copy it verbatim, and to incorporate it in their
brief. Anyway, the import of the underscored sentences
of the quotation in the respondent Judge's decision is
substantially the same as, and faithfully reflects, the
particular ruling in this Court's decision, i.e., that "[N]ot
even the acquittal of an employee, of the criminal
charges against him, is a bar to the employer's right to
impose discipline on its employees, should the act upon
which the criminal charges were based constitute
nevertheless an activity inimical to the employer's
interest."
Be that as it may, we must articulate our firm view that in
citing this Court's decisions and rulings, it is the bounden
duty of courts, judges and lawyers to reproduce or copy
the same word-for-word and punctuation mark-for-
punctuation mark. Indeed, there is a salient and salutary
reason why they should do this. Only from this Tribunal's
decisions and rulings do all other courts, as well as
lawyers and litigants, take their bearings. This is because
the decisions referred to in article 8 of the Civil Code
which reads, "Judicial decisions applying or interpreting
the laws or the Constitution shall form a part of the legal
system of the Philippines," are only those enunciated by
this Court of last resort. We said in no uncertain terms in
Miranda, et al. vs. Imperial, et al. (77 Phil. 1066) that
"[O]nly the decisions of this Honorable Court establish
jurisprudence or doctrines in this jurisdiction." Thus, ever
present is the danger that if not faithfully and exactly
quoted, the decisions and rulings of this Court may lose
their proper and correct meaning, to the detriment of
other courts, lawyers and the public who may thereby be
misled. But if inferior courts and members of the bar
meticulously discharge their duty to check and recheck
their citations of authorities culled not only from this
Court's decisions but from other sources and make
certain that they are verbatim reproductions down to the
last word and punctuation mark, appellate courts will be
precluded from acting on misinformation, as well as be
saved precious time in finding out whether the citations
are correct.
Happily for the respondent Judge and the respondents'
counsels, there was no substantial change in the thrust of
this Court's particular ruling which they cited. It is our
view, nonetheless, that for their mistake, they should be,
as they are hereby, admonished to be more careful when
citing jurisprudence in the future. ACCORDINGLY, the
decision of the Court of Industrial Relations dated August
17, 1965 is reversed and set aside, and another is
entered, ordering the respondents to reinstate the
dismissed members of the petitioning Unions to their
former or comparatively similar positions, with backwages
from June 2, 1958 up to the dates of their actual
reinstatements.
It is still good law because it was reiterated in the latest
case of:
T&H Shoplifters Corp. vs. T&H Shoplifters Corp.
Workers Union
III Manresa 2014-2015
3rd Division, Justice Mendoza (FEB 26, 2014, G.R.
191714).
As to the issue of ULP, petitioners argument is utterly
without merit.
In the case at bench, petitioners are being accused of
violations of paragraphs (a), (c), and (e) of Article 257
(formerly Article 248) of the Labor Code,13 to wit:
Article 257. Unfair labor practices of employers.It shall
be unlawful for an employer to commit any of the
following unfair labor practices:
(a) To interfere with, restrain or coerce employees in the
exercise of their right to self-organization;
xxxx
(c) To contract out services or functions being performed
by union members when such will interfere with, restrain,
or coerce employees in the exercise of their right to self-
organization;
xxxx
(e) To discriminate in regard to wages, hours of work,
and other terms and conditions of employment in order
to encourage or discourage membership in any labor
organization. x x x
The concept of ULP is embodied in Article 256 (formerly
Article 247) of the Labor Code,14 which provides:
Article 256. Concept of unfair labor practice and
procedure for prosecution thereof.Unfair labor
practices violate the constitutional right of
workers and employees to self-organization, are
inimical to the legitimate interests of both labor
and management, including their right to
bargain collectively and otherwise deal with
each other in an atmosphere of freedom and
mutual respect, disrupt industrial peace and
hinder the promotion of healthy and stable
labor-management relations.
xxxx
In essence, ULP relates to the commission of acts that
transgress the workers right to organize. As specified in
Articles 248 [now Article 257] and 249 [now Article 258]
of the Labor Code, the prohibited acts must necessarily
relate to the workers' right to self-organization x x x.15
In the case of Insular Life Assurance Co., Ltd. Employees
Association NATU v. Insular Life Assurance Co. Ltd.,16
this Court had occasion to lay down the test of whether
an employer has interfered with and coerced employees
in the exercise of their right to self-organization, that is,
whether the employer has engaged in conduct which, it
may reasonably be said, tends to interfere with the free
exercise of employees rights; and that it is not necessary
that there be direct evidence that any employee was in
fact intimidated or coerced by statements of threats of
the employer if there is a reasonable inference that anti-
union conduct of the employer does have an adverse
effect on self-organization and collective bargaining.
The questioned acts of petitioners, namely: 1) sponsoring
a field trip to Zambales for its employees, to the
exclusion of union members, before the scheduled
certification election; 2) the active campaign by the sales
officer of petitioners against the union prevailing as a
bargaining agent during the field trip; 3) escorting its
employees after the field trip to the polling center; 4) the
continuous hiring of subcontractors performing
respondents functions; 5) assigning union members to
the Cabangan site to work as grass cutters; and 6) the
enforcement of work on a rotational basis for union
members, all reek of interference on the part of
petitioners.
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 Lectures on Labor Relations
From the Lectures and Hand-Outs of Father Agustin L. Nazareno
Indubitably, the various acts of petitioners, taken
together, reasonably support an inference that, indeed,
such were all orchestrated to restrict respondents free
exercise of their right to self-organization. The Court is of
the considered view that petitioners undisputed actions
prior and immediately before the scheduled certification
election, while seemingly innocuous, unduly meddled in
the affairs of its employees in selecting their exclusive
bargaining representative. In Holy Child Catholic School
v. Hon. Patricia Sto. Tomas,17 the Court ruled that a
certification election was the sole concern of the workers,
save when the employer itself had to file the petition x x
x, but even after such filing, its role in the certification
process ceased and became merely a bystander. Thus,
petitioners had no business persuading and/or assisting
its employees in their legally protected independent
process of selecting their exclusive bargaining
representative. The fact and peculiar timing of the field
trip sponsored by petitioners for its employees not
affiliated with THS-GQ Union, although a positive
enticement, was undoubtedly extraneous influence
designed to impede respondents in their quest to be
certified. This cannot be countenanced.
Not content with achieving a "no union" vote in the
certification election, petitioners launched a vindictive
campaign against union members by assigning work on a
rotational basis while subcontractors performed the
latters functions regularly. Worse, some of the
respondents were made to work as grass cutters in an
effort to dissuade them from further collective
action.1wphi1 Again, this cannot be countenanced.
More importantly, petitioners' bare denial of some of the
complained acts and unacceptable explanations, a mere
afte1ihought at best, cannot prevail over respondents'
detailed narration of the events that transpired. At this
juncture, it bears to emphasize that in labor cases, the
quantum of proof necessary is substantial evidence,18 or
that amount of relevant evidence as a reasonable mind
might accept as adequate to suppoti a conclusion, even if
other minds, equally reasonable, might conceivably opine
otherwise.19
In fine, mindful of the nature of the charge of ULP,
including its civil and/or criminal consequences, the Court
finds that the NLRC, as correctly sustained by the CA,
had sufficient factual and legal bases to support its
finding of ULP.
What does TRH Shoplifters Corp. say?- in the case of
insular life this court had occasion to lay down the test
on whether an employer has interfered with and
coerced employees in the exercise of right to self-
organization
That is- when the employer has engaged in
conduct which it may reasonably be said to
interfere with the free exercise of the
employees rights.
Therefore, it is NOT NECESSARY that there be
direct evidence that any employee is in fact
intimidated or coerced by statements of threats
by an employer if there is a REASONABLE
INFERENCE that anti-union conduct of the
employer does have that adverse effect on self-
organization and collective bargaining.
Kanang speech that contains threat or reprisal or
contains promise or reward is already ULP speech.
Ignan gani nimo nang tao- pag bantay mag union-union
gani mo! Kulob kaldero ninyo kay timan-an mo sa inyong
agalon. Mapa hawa mo. Unsa man na?
III Manresa 2014-2015
That is threat. That is not covered by freedom of
speech.
Now, suppose you are a four-foot tall supervisor among
six-footers. Your underlings are all six-footers. Kay ngano
man?- arrastre. Ikaw?- Ikaw ray college graduate dira
pero four feet ra ang imong height. Eh ignan nimo silag-
buang-buang mo ha, ga union-union (something
threatening Inaudible) di gani ka kaabot kay six-footer
man sila. Katawa lang na sila sa imo. Diba?
The contention is- is unfair labor practice committed? But
you have not threatened anyone. What is the ruling of
the court?
The Court says there is unfair labor practice.
Even if no evidence is presented that an
employee was in fact intimidated.
Why? What is the reason? The SC does not say
in Insular, it is said in another decision and this
time by JBL Reyes. The SC says- if you require,
for the commission of ULP through threatening
speech that someone is in fact threatened,
then you make it a requirement for that
what the law seeks to prevent that it occur
first.
Tuyo man sa balaod na wala untay hadlukon na
empleyado. Na imo na hinuon buhaton na
katarungan na naay nahadlok una paka maka
santa sa kahadlok. You see the logic behind the
argument? The law cannot require that
somebody be threatened with the speech
because that is what the law seeks to prevent.
So what is the measure therefore?
It is the same as the so called DANGEROUS
TENDENCY RULE.
If you go to speech, the only thing that can
prevent freedom of speech or the only thing that
can arrest the privileged constitutional right of
peaceable assembly to protest transgressions of
ones rights and ask for redress of grievance,
THE ONLY THING IS CLEAR AND PRESENT
DANGER is it not in the constitution.
What is that kind of test? It is BASED ON
PROXIMITY AND INTENSITY.
o It must be so near as it is about to
happen and
o what is about to happen is substantially
serious enough as to cause the
suspension of otherwise the privileged
right of freedom of speech. Thats what
the SC says.
The trouble is when it comes to rebellion the old
decisions are DANGEROUS TENDENCY:
o for as long there is a tendency in the
speech, taken by itself, regardless of
circumstances when it was said, that it
is calling for the use of arms to
overthrow the government, that is
enough to be an (inaudible) speech.
The state can stop that speech.
o Remember the famous case of the
Boholano who said- the evils that the
Americans brought to this country are
so dire that all of us should sharpen
our bolos and rise up. Layo ra gud
kaayo siya tora gud siya sa Bohol atong
panahuna. Unsahog abot ana sa
Manila? and cut the head of the
governor general ana siya. He was
prosecuted for rebellion and there were
dissenting opinions. They said thats
not insighting for rebellion, bolo lang
nang iyang gamiton human tora pa siya
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 Lectures on Labor Relations
From the Lectures and Hand-Outs of Father Agustin L. Nazareno
sa Bohol. Pirting layu-a niya. That is a
dangerous tendency. That is the rule.
Here, in unfair labor practice that is the rule.
Even if you have not in fact created any fear
in uttering your threats, you have
committed unfair labor practice. Its the
same as rebellion. Dangerous tendency rule.
Im giving you a copy courtesy of lawphil, ruling of Insular
Life vs. Insular Life. This is the landmark case on- Unfair
Labor Speech. Fred Ruiz Castro, Chief Justice. Please
read this. If there is only one case you will read on unfair
labor practice, let it be Insular Life vs. Insular Life- en
banc ruling of the Supreme Court. So that you will not
make the same mistake of, God rest his soul, Executive
Labor Arbiter Sancho. Tell that to the marines.
SEPTEMBER 11, 2014 (8)
So it is important to note that the commission of ULP by
way of INTERFERENCE can be either:
negatively or positively done.
o If you promise a reward that is
interference.
o If you threaten, that is also
interference.
o If you help an employee to join a union
that is interference;
o If you prevent him from joining that is
also interference.
So what is your IDEAL POSTURE AS AN EMPLOYER?
YOU ARE A BYSTANDER. That is why it is
reiterated specifically in RA9481 that certification
election is solely the business of the employees.
Employer, do nothing. Keep out of the way.
Now, you see in the Labor Code company union in the
implementing rules Rule I of Book V Sec. 1
Company Union is one whose formation is
accomplished with the help of the employer that
is ULP.
It is found in Article 219 [212] letter i. means
any labor organization whose formation,
function or administration has been assisted
by any act defined as unfair labor practice by
this Code.
Principle: Actions based on the fact and scope of
ownership which otherwise will be legitimate, valid, legal
is now illegal invalid because of ULP laws.
Illustration: In 1986 we had a strike here in Ateneo.
The university was barricaded by the union. It was
Christmas. During the Christmas holidays, the community
normally gets so many gifts, food, cake, goodies and
more than enough for the fathers to consume. They said,
we should give it to the union there; they are just
picketing; they can use the food.
THAT IS ULP! Since when charity becomes
ULP? Since there was PD 442 [labor code]
o You CANNOT DO ANYTHING
positively or negatively to the union.
You keep out. bystanders lang ka! You
must understand that concept because
it is double-bladed!
Finally, they have compromised to give it to the
sisters and the latter will give it to the picketers.
It is no longer the employer that is giving it
to them but the public. Sisters here are third
party so in that case NO ULP.
III Manresa 2014-2015
So, it is not only the fundamental freedoms in the
Constitution that is limited because there is a thing such
as ULP, most of all it is managerial.
Principle: An employer has the prerogative to contract
out services that are not directly related to its businesses.
An employer can contract out services janitorial,
maintenance, security services.
Illustration: Now, supposed Shell, the employer hired
its security directly. Now, all the security employees
formed a union vis--vis Shell. Now, EVEN IF there is
prerogative to contract out services, they are NOT
DIRECTLY RELATED TO THE BUSINESS OF THE
EMPLOYER, can you do that now that by forming a
union?
NO! YOU CAN NO LONGER DO THAT because
that will be interpreted as precisely done to
stop them from exercising the right to self
organization.
An act of managerial prerogative which
would otherwise be valid and legal is no
longer valid and legal. Keep in mind when
you are given a problem!
You cannot help an employee joining a union and yet if in
the CBA there is union security clause by which
management recognizes that this union is the exclusive
bargaining agent and deducts the union dues. Isnt it
helping the union?
Its collecting for the union, the union dues
should be given voluntarily validly to the union
because it is agreed in the CBA.
What happens if management for instance refuses to do
that in the guise that management does not know
whether the union has sever his relation from the
federation or is now an independent union? He just stops
collecting.
What the management should do is collect it
and
place it on escrow waiting for the condition to
happen that the clear right for this union dues is
finally decided.
Now what happens? Can the union ask the SC later on
that this is a violation of the law and therefore because
management did not collect, it should be the
management that should reimburse the union for the
uncollected union dues?
NO, the union cannot ask that management
reimburse. That is the case of:
Holy Cross vs. NLRC
SC says you cannot do that!
The collection by management by union dues
for and in behalf of the union is a help to the
union.
If it stops its help, it may be commanded to do
the act again.
But the management is NOT SUPPOSE TO make
the payment of union dues which is the
obligation of the members. You cannot do that.
The voluntary arbitrator cannot order
management to reimburse the uncollected union
dues.
So, many managerial prerogatives are limited because of
ULP rules.
Now, I passed on to you this RULES ON
SOLICITATION. This limits the prerogatives of
management to make rules.
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 Lectures on Labor Relations
From the Lectures and Hand-Outs of Father Agustin L. Nazareno
1. Take the first rule a NO SOLICITATION RULE OF
UNION MEMBERSHIP OR THE PROHIBITION
AGAINST DISTRIBUTION OF UNION
LITERATURE DURING WORKING HOURS OR
WORKING TIME OR WITHIN COMPANY
PROPERTY IS PRESUMPTIVELY INVALID.
[check the hand-out]
PRESUMED INVALID: [TIME]
Like no union campaigning during working
hours.
No union campaigning within the premises. That
is also presumed to be invalid because working
time is not necessarily entirely managements
time.
o There are recognized times there
where it is NOT THE EMPLOYERS TIME
like rest periods, breaks.
o Can you govern what is spoken during
breaks? It cannot be all work during
the break. People will be talking about
the movies they have watched or what
were they doing over the weekends or
whether or not their babies were
having a fever. That is not work talk.
o If he can do other than work talk and
you prohibited from doing union talk,
then you are being discriminatory. You
are interfering.
Now, even if that is the rule, presumptively invalid, you
cannot prohibit people from talking about union in the so-
called NEUTRAL AREAS.
What are neutral areas? like cafeteria. In that
area, you can talk about anything other than
work. So, you can talk about soliciting union
membership.
Now, you CANNOT PROHIBIT them from
DISTRIBUTING UNION LITERATURE.
Distribute ka ug handbills UNION KITA! WHY WE NEED
UNION? In the US, it is sophisticated. There are
organizers that initiate the subrosa stage. Surface na
gani, hawa na na sila, lahi na pud ang manulod. Kanang
antigo jud ana. Now when the workers come out, there
are all sorts of campaign activities.
Can the company prohibit workers who have
PRESCRIBED UNIFORMS wearing union buttons?
UNION KITA!or wear pants, hands, bonds GO WITH
THE WINNING TEAM! KMU Can the company prohibit
that?
The company will say we can prohibit that
because we prescribed a uniform. Youre
working in a bank, naa man moy uniform ngano
dungagan man na ninyong uniform. Thats
violation of company policies. Kanang union
button na inyong gisul-ob ninyo, that is an
addition to the uniform sanctioned by the
company. SO, THEREFORE, THE COMPANY
CAN SAY REMOVE THAT!
Now, if the union CAN SHOW THAT IN THE
PAST that there were certain additions, but the
company DID NOT STOP them from doing
that, then the stopping of the union buttons
becomes DISCRIMINATORY.
o Naay ubang mga employees
nagbakasyon sila sa Baguio mamalit
sila ug souvenir. Pagbalik nila gusto
nila ipahibalo sa tanan nga gikan sila
III Manresa 2014-2015
didto sul-ob sila ug mga burloloy dinha,
bonet, headgear. Dili man sawayon sa
supervisor. Wa man gibadlong sa
supervisor ng mga nagbandana-
bandana gikan ug Baguio.
o If you can prove that that was done in
the past and it did not do anything
about the protocol dress code of the
company, then you are discriminatory
when you stop them from wearing
union buttons.
Example: distribution of literature 21:11-23:40 [check the
illustration of father]. Let us say, this is already sidewalk.
This is the entrance of the plant. Naay guard house
dinha. Naa silay time card machine. As you go out there,
naay nag-atang dinha sa gawas. Naghatag ug union bills.
Handbills. MAG-UNION KITA! nagdistribute sila. Can
they be stopped distributing when they are here outside
the company premises? It is immediately outside the
company premises. Pag-gawas naa na dira.
AS A GENERAL RULE: you cannot be stopped
because youre outside.
EXCEPTION: But if you prove that so many of
these people just throw away the handbills, they
do not bother to read it and its scattered all
over the place there unya inig ulan, naa pay
maslide dinha, madakdak apil pa nuon sa
liability of the employer. Thats the GOING
AND COMING RULE, then you can say that
you can stop the distribution.
o But the prerogatives of the employer
are limited because of the ULP
provisions.
Now when you go to these rules, you can see that there
are certain workplaces that are already EXEMPTED by
jurisprudence from the regular rules [in neutral places,
you cannot prohibit]
The rule is you CANNOT PROHIBIT UNION
SOLICITATION:
during working hours or
within company premises.
That is considered to be overarching.
Illustration:
1. But, in workplaces like DEPARTMENT
STORES, where customers have access to
neutral places like canteens, YOU CAN
PROHIBIT UNION SOLICITATION, because:
o the customers might hear these union
talk or there might be heated
discussions between union vying for
employees allegiance. This might turn
off customers.
So management can prohibit union talk even in neutral
places in this case. [EXCEPTION TO NEUTRAL PLACES]
2. HOSPITALS, when the neutral places are
within the access of ambulant patients essential
to the hospital is peace of the patient that the
patient be not disturbed.
o Now, if there is union talk, in the
canteen and there might be a heated
discussion, it might disturb the peace
that the patient needs for recovery.
o You are an operating room nurse. Naa
kay button dire, because the hospital
cannot stop you, but there are certain
sensitive equipments in the OR. In fact
surgeons are not allowed to wear
jewelries when they perform surgical
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 Lectures on Labor Relations
From the Lectures and Hand-Outs of Father Agustin L. Nazareno
procedure in the OR; in like manner
this can be done to the union. These
are SPECIAL WORK PLACES
3. For instance, a union organizer, has no right to
demand entry in the workplace. He is known to
be a union organizer. Managemet can keep him
out. naa may dako na sign dinha
UNAUTHORIZED PERSONS NOT ALLOWED
BEYOND THIS POINT.
o GR: Valid man na against union
organizer. And you asserted I
volunteer for the sake of these people!
YOU ARE NOT ALLOWED. He cannot
say my right to self organization is
jeopardized because he has no right to
self organization. [ORGANIZER] has no
ee-er relationship with the company.
He is different from the employee here.
o EX: But naa sign dira dako kaayo
UNAUTHORIZED PERSONS NOT
ALLOWED unya daghan kaayo
nagasulod dinha magdala anang
baligya kan-on, sud-an, pansit. Wala
man na silay labot, di man na sila
hunungon but kung labor organizer
bunuon. You are being
DISCRIMINATORY if you disallow
the organizer because you have
allowed third parties that are
unauthorized. Tan-awa ang
banatyunon sa personnel kung ikaw
abogado ka ug company, daghan
kaayo kag huna-hunaon.
AS A GENERAL RULE: The organizer cannot get in.
EXCEPTION: there are certain workplaces where the
company is bound by law to allow them. These are the
so-called ISOLATED WORKPLACES mining sites,
agribusiness sites. Why? What is the reason of the
decision by the US Supreme Court?
[GENERAL RULE] US Supreme Court said, if
you are located in an urban center, the
organizer is not allowed to contact workers
within the premises of the employer. The
organizer can always call them up by phone or
in some other ways.
[EXCEPTION] But if it is an isolated place
where you live and work in the same
company premises, there is no practical
probability for the right to self organization to be
exercised. You need an organizer to come in
and explain to you the mechanics of forming a
union. Help you in forming it. If it is not there,
then the law might be there but, for all
practical purposes you cannot form a
union because you do not know how.
Thats why the organizer is allowed to come in
in agribusiness areas or in isolated places. So
they have no probability of exercising
their right to self organization. so, again
that is taken into consideration when you talk
about rules on solicitation.
Alright, let us go to Article 258 and go 1 by 1 because
90% of ULP is committed by management not by the
union. In ULP there are only 5 provisions here:
Article 256-259
Article 302 and 304 the 1 year prescriptive
period for ULP.
Those are the only provisions of ULP.
III Manresa 2014-2015
Art. 258 [248]. Unfair labor practices of
employers. It shall be unlawful for an employer to
commit any of the following unfair labor practice:
a. To interfere with, restrain or coerce
employees in the exercise of their right to
self-organization;
This is the summary of the enumeration. Take note SC
has said that this enumeration is NOT EXHAUSTIVE.
There are other ways of committing ULP. We cannot
possibly put all those ways. All we know is if it is a form
of interference, then it is ULP.
b. To require as a CONDITION OF
EMPLOYMENT that a person or an
employee shall not join a labor
organization or shall withdraw from one to
which he belongs;
The short term for this particular offense is YELLOW
DOG CONTRACT. When an employer requires a new
employee that as a condition he must not join a union or
withdraws from such union where he or she belongs.
That is very common.
Illustration: Palingkuron ka dira unya pasulaton ka ug
reaction. Sulat ka dinha ang mga kapitalista nagpasasa
sa dugo ug singot sa mga trabahante. Tinuod buang2
ning mga kapitalista! giingnan ka sa kompanya, pag-uli
didto sa inyo! Panglaba didto! is it a yellow dog
contract?
Definitely it is.
You already belong to some, but MIND YOU
KMU IS NOT A LABOR ORAGNIZATION.
WA DYUD NA NAREHISTRO SA BLR. IT IS
A MULTI-SECTORAL GROUP. NAMAMIN-
KMU; ANGLO-KMU.
c. To contract out services or functions being
performed by union members when such
will interfere with, restrain or coerce
employees in the exercise of their rights to
self-organization;
This is what is called ULP CONTRACTING OUT. You
contract out services that are performed by union
members.
Illustration: Let us say a company has its own janitors.
They hire directly. Tungod sa Nestle na kaso, the
consultant says lets contract out.
If what they will do is like what Shell did, naay early
retirement, avail the retirement. Unya dili man sila mu-
avail, pugson jud. Katong mu-avail, voluntary.
That is not against the law. its not against the
law not to replace a retiring janitor because that
place is lost not by the act of the employer but
by attrition. Muretire na imong janitor, dili na ka
pulihan, pulihan nimo ug contractual employee,
dili na ULP.
Lets say they are starving in the bargaining unit because
it becomes smaller and smaller by not replacing. Is the
ULP?
NO because the loss of the job is because of
attrition not by the overt positive act of the
employer.
Remember, you cannot contract out service of the union
members that are DIRECTLY RELATED TO HIS
BUSINESS. That would be:
labor-only contracting
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besides being ULP.
Magkuyog na dinhi ang labor standards ug labor
relations.
d. To initiate, dominate, assist or otherwise
interfere with the formation or
administration of any labor organization,
including the giving of financial or other
support to it or its organizers or
supporters;
A company that helps the union is committing a ULP. Mao
nay nakapait ana. Kaingon nimo nga maayong tao ka.
Ikaw na ang nitabang, ikaw pa ang isumbong ug ULP.
Illustration: Presidente sa union nagdala ug formal letter
adto sa management. Karon kay pasko were asking you
to contribute 2 lechons in our Christmas party.
Nicontribute ang manager. Pagkaugma filelan siya ug
ULP. Unsa may defense nimo? I am giving it as a
Christian Christmas celebration.
SO ULP!
Unsa may defense nimo kung ikaw ang abugado
sa kompanya. How will you prevent that from
happening? The ONLY WAY TO PREVENT
THAT is to provide in the collective bargaining
agreement that you are going to give lechons to
the union during Christmas. So, that act now is
a fulfillment of the provision in the CBA.
The RULE is the company will always say we cannot
commit ourselves to the kind of help. Time might come
that I cannot afford anymore. We want to be free.
So you put a BLANKET CLAUSE: Management hereby
commits to assist the union in all possible ways, financial,
moral, in ways agreeable to the union. You can invoke
CBA.
e. To discriminate in regard to wages, hours
of work and other terms and conditions of
employment in order to encourage or
discourage membership in any labor
organization.
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 for
employment
EXCEPT those employees who are already
members of another union at the time of
the signing of the collective bargaining
agreement.
Employees of an appropriate bargaining
unit who are not members of the
recognized collective bargaining agent
may be assessed a reasonable fee
equivalent to the dues and other fees paid
by members of the recognized collective
bargaining agent, if such non-union
members accept the benefits under the
collective bargaining agreement:
Provided, that the individual authorization
required under Article 242, paragraph (o)
of this Code shall not apply to the non-
members of the recognized collective
bargaining agent;
Illustration: Nahibaw-an na ni sila na magform ug union.
Ayaw na na sila pa-overtyma. Sir naka-overtime man
III Manresa 2014-2015
mi sauna. Ngano kami man? Wa na moy overtime, di
na nako isulti ang rason. Kahibawo mo. Kalain sad nimo
sir oi. Ayaw pag-ing-ana sir, nagpabuhat bay mi ug bag-
ong kasilyas sa amo. Nagpa-extension ko. Mao ganing
nagaovertime ko. wa na nang extrafunds nimo kay naa
man gu kay extra-organization dinha
That is ULP!
Please take note of this: nag-union na siya, DILI NA
NIMO SIYA TAGA-AN UG PRIVILEGES UG CASH
ADVANCE. Is that ULP?
NO. Cash advance is a form of mutuum. Loan
man na. That is NOT PART OF THE TERMS
AND CONDITIONS OF WORK. That is an
entirely separate contract.
GR: You cannot change conditions of work because of
the practice of self-organization. [YOU CANNOT
INTERFERE]
EX: is the second sentence, 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 for employment, except those
employees who are already members of another
union at the time of the signing of the collective
bargaining agreement. This is the union security
clause.
Management when it signs the union security
clause is obligated to make new employees as
soon as they become regular members of the
union. That is the exception to non-interference.
SC says, the union security clause is a
contractual limitation of the freedom in
the exercise of the right to self
organization, that is recognized.
SEPTEMBER 17, 2014
Unfair Labor Practice (ULP) can be practiced in either of 3
ways:
1. Interference
2. Restraint
3. Coercion
1) Interference - by declared policies that they publish,
so their managerial prerogatives to their direct business,
and influence outcomes of their undertaking in order to
make profit, may be curtailed
SPEECH
GR: Technically speaking, they have freedom to express
themselves.
EX: But if their expression contains any right of reprisal or
promise of reward, that becomes ULP.
So to that extent, their freedom is diminished.
It is diminished for sake of strengthening labor,
for the sake of giving labor a chance to organize
itself.
To form labor unions is considered by the
constitution as desirable, it has a preference.
Thats why there is a curtailment of the freedom
of ER, he cannot act ordinarily.
So for instance, you compare it with the FREEDOM OF
THE LABOR ORGANIZATION.
Illustration: You have a labor leader within a given
department. Lets say you talk about a textile factory, it
has several machines. They have a spinning machine that
makes thread, very high speed. There is a weaving
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machine that makes use of the thread to make the cloth.
There is the dying machine to color the cloth. And finally,
there is the conditioner of the cloth, you cut(?) it or you
put it in lower temperature so that the cloth will be finally
ready.
Each of those stages has a crew, the spinning machine
has a tender (the one who tends the machine). Naa
mana siyay mga assistant, kanang oiler (siya ang
magbutang sa fuel). So there is the spinning, weaving
tender, the assistant tender, there is the oiler. *stories
about organic and synthetic cloth* Naa na siyay isa ka-
grupo.
The tender head of the machine is already a union
member, he has convinced every single one to become a
union member. Except the oiler, he refuses to be a union
member; and the generator tender says ikaw ray naglahi
diri, ikaw ray buang buang diri. Kami tanan nakita namo
unsa ngano na magunion ta. Kay kung di ta magunion,
mawagtang ta *drama drama* pasagdan ka namo,
malupitan gani ka, bahala ka diha
Is that a threat? Yes, that is a threat.
Is that ULP? No, it is not.
Conclusion: For Labor side, A THREAT TO BECOME
ULP, the threat itself must constitute a crime. If not
yet crime or felony, it does not constitute ULP.
MANAGEMENT
If mgt says union union mo, naa moy reklamo, di tamo
paminawon
Is that a threat? Yes.
Is that ULP? Yes, it is, because it is intended to
influence the EE in the exercise of his right to
self organization (SO).
Even if threat DOES NOT CONSTITUTE
CRIME, it is ULP, because it is interference.
Interference can be for ill, or it can be for good.
o When you interfere with somebody, uy
duko kay mabangga na imong ulo, you
interfere but it is for the good.
Pagkabati sa imong tshirt, interfere
mana but it is for the good.
ULP NA KUNG ANG MGT MUINGON ANA.
Muingon ang management mao na inyong union tshirt?
Mura manag trapo I am criticizing it not from the point
of view of the exercise of the right of SO, but from the
POV of fashion.
Is that ULP? Yes, it is ULP.
CONCLUSION: When you interfere, labot labot ka,
whether for good or for ill, it is ULP.
UNION
Speech. Muingon ang union organizer or president kamo
tanan diri, kay naa man moy bargaining unit, be ready
when the day comes for the day is near [lalum kaayo
ang bisaya, in short, magnegotiate daw si union
president na hatagan sila each ug kotse]. Klaro naman na
nga nagbugal bugal. It is an impossibility, it is an
impossible demand. Matud pa sa SC, it is a blue sky
bargain.
It is NOT ULP. It cannot be ULP. When the
demand of the union is next to impossible to do,
that is not ULP.
RATIONALE: Because at one point or another,
any of these standard benefits that the union or
working man is NOW enjoying, USED TO BE
impossible to give. So IT CANNOT BE the
measure of ULP.
III Manresa 2014-2015
BUT FOR THE ER
A simple promise.
it is already ULP, if it has a tendency to
influence to the exercise of the right to SO.
If I say, nadungog nako *mumbling* ako nalang jud
nang dawaton na naa moy sakit sa dughan, *drama*
pamilya ra man ta isulti nalang nato. Unsa mana na? kay
kung mahatag na nako, ihatag na nako. Unsa man
inyong gusto?
Is that ULP? Yes, that is already ULP. Promise of
reward.
RATIONALE: Speech which in another context
without the exercise right to SO, which would
be perfectly valid speech, is not valid because
it involves right to SO.
I hope you understand ha? That is the dark side of Labor
Relations. It does not help for the ER to be generous,
because he will be held on to what he says, to how he
acts, that is what happens.
Unya muingon kag that is the standard complaint of the
capitalist. What is it?
Ang mga mamumuo (manggagawa) sige lag
pangayo ug increase. Always increase, di mana
sila muingon na pamuban ang sweldo. Wala nay
retreat.
Unya muingon dayon ang capitalista kung
malugi na, they do not share in the loss, they
share in the bounty, not the loss.
Unsa may tubag ana? Samuel Gompers(?)
United textile workers of America. 1899. *history
lesson* Mr. Chairman I can summarize it one
word: more. We want more [char ]
*dialogue*
Im talking about Bread and butter unionism
(BBU) because that is unionism, Im not talking
about unionism with a separate and distinct
agenda. The latter is contained in the
communist manifesto *dialogue, history*
political ilahang agenda. *sabton daw nato unsa
nang agenda, paglawyer na ta, kay lain daw na
ilahang tunong, kay di lang daw na pagkuha ug
more; if dili, mawala daw ta * In BBU, you just
want more. *rant rant*
CONCLUSION: This is the weak point of labor relations
and this is what gives those with different agenda the
leverage they need to expand the *** conventions of our
society.
So we have seen interference in speech, in acts.
We have seen yellow dog contract, very
common.
We have seen ULP contracting.
We have seen company-union activities, when a
company creates a company union, he does not
oppose a union, he aids the union, supports the
union and yet that is ULP. The union who
receives help will not complain, it is the other
union who will complain.
Mind you, there is an old landmark decision again by JBL
Reyes.
A petition for certification election (CE), maybe delayed if
ANOTHER UNION, AN INTERVENOR opposes the
petition on the ground that petitioner is a company
union.
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But if any other party opposes a petitioner, then it does
not matter. It does not delay CE.
If it is another union that alleges, then what the
oppositor raises is what is called a PREJUDICIAL
QUESTION, which must be settled before the issue on
CE will be resolved.
discriminate against any employee who:
has filed any complaint or instituted any
proceeding under this Title or
has testified or is about to testify in such
proceedings.
Similar wording, but what is the difference?

That decision has not yet been overturned. 258 118

There is a change in
DISCRIMINATORY ACTS terms and conditions of
work, what is the
ULP by discriminatory acts when the ER changes the reason, because he has
terms and conditions of work because of exercise of right filed a case, what does
of SO. He hopes to change behavior to your right to SO 258(f) say
by his acts. The case that 118 is about is a
to discriminate against labor standards case under
Illustration: Let us say the company premises is at a an employee for having this title
distance from the highway where public transportation is given or being about to
available. There is a road leading to the company give testimony under
premises. Let us say the company, now and then, gives this Code If it is LabStan, wala kay
the EEs a ride to the public highway where the public union, no exercise of the right
transportation is available. Then when the EEs form a If you file a case vs. of SO, gi-kiha na imong ER
union, they stop it. What happens? your ER for ULP, and kay wala ka bayri sa imong
That is ULP because the change in the terms the ER changes the 13th month, unya ang ER
and conditions of work is motivated to terms and conditions of buang ka, kinsay nagbutang
influence your right to SO. That is work because of that ug pagkaon sa imong lamesa?
discriminatory, that is: action Kami. Unya ikiha mi nimo?
that is ULP, Karon wala na kay OT
e. To discriminate in regard to wages, hours of that is not just
work, and other terms and conditions of retaliatory
employment in order to encourage or discourage measures.
membership in any labor organization. If you are dismissed If they deny you 13th month
because you filed ULP pay because you filed
Nothing in this Code or in any other law shall complaint: complaint vs. ER under labor
stop the parties from requiring membership in a that is ULP standards because he does not
recognized collective bargaining agent as a DISMISSAL pay night shift differential,
condition for employment and how much time do you have to
you have 1 file?
EXCEPT those employees who are already year to file That is a MONEY
members of another union at the time of the complaint CLAIMS
signing of the collective bargaining agreement. because the COMPLAINT, that is
prescriptive 3 years.
Employees of an appropriate collective period of ULP
bargaining unit who are not members of the (258 f) is 1 If he dismisses you for filing a
recognized collective bargaining agent may be year. case, alleging that you are not
assessed a reasonable fee equivalent to the paid 13th month pay, and he
dues and other fees paid by members of the dismisses you, that is
recognized collective bargaining agent, if such ULP dismissal, you have ILLEGAL DISMISSAL.
non-union members accept the benefits under 1 year. Illegal dismissal- you
the collective agreement. Provided, That the have 4 years to file;
individual authorization required under Article Lumanta v. NLRC
242 [now 249], paragraph (o) of this Code shall prescriptive for illegal
not apply to the nonmembers of the recognized dismissal is 4 years.
collective bargaining agent; [The reference Even if you did not file it as a ULP dismissal, you can still
should be to Article 241, (now 248); this error in file it as an ordinary dismissal because an ULP dismissal
the Code is still uncorrected. CAA] is a dismissal without just or authorized cause. So you
can file it as an ordinary dismissal. You still have 4 years.
The capital sin of discriminatory acts labelled under ulp is
dismissal of EE because of his right to exercise SO. That ULP dismissal can ripen Retaliatory dismissal complaint
is: into a criminal case cannot ripen into criminal case

f. To dismiss, discharge, or otherwise prejudice or

discriminate against an employee FOR HAVING ULP dismissal ALWAYS But ordinary dismissal without
GIVEN OR BEING ABOUT TO GIVE merits reinstatement just or authorized cause,
TESTIMONY under this Code; because the law wants reinstatement may be
to teach the ER a excused:
All a labor relations case because: lesson. if your position has
General Rule: been abolished and
248(f)[258 ata dapat?] has to be distinguished from 118: separation pay no substantially
in lieu of equivalent position is
ART. 118. RETALIATORY MEASURES. It shall be reinstatement available to you, then
unlawful for an employer to refuse to pay or reduce the is NOT the ER MIGHT BE
wages and benefits, discharge or in any manner ALLOWED IN JUST ALLOWED TO
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ULP PAY BENEFITS IN
DISMISSAL. LIEU OF
REINSTATEMENT.
g. To violate the duty to bargain collectively as
prescribed by this Code;
So the duty to bargain if violated, it is ULP. Remember it
is a continuing duty, that duty exists even if there is
already a CBA. So if you DO NOT meet promptly or
expeditiously to adjust grievances, you are an ER, you
can be held guilty of refusal to bargain which is ULP.
h. To pay negotiation or attorneys fees to the
union or its officers or agents as part of the
settlement of any issue in collective bargaining
or any other dispute
I just like to point out: for the union it is ulp to ask for
you look at (e) To ask for or accept negotiations or
attorneys fees from employers as part of the settlement
of any issue in collective bargaining or any other
dispute;
Thats already ULP.
Is it unfair labor practice, if the company says okay, ang
magtibwas sa tanan, aron mahuman na ni kay dugay na
kaayo ta na negotiate, aron musugot mo, 10k signing
bonus. Para mahuman ta ani, pirmahay na ni.? Ana ang
leader ah maayo na.? Is that not a violation of 258 (h)
To pay negotiation or attorneys fees
IT IS NOT, because it is available to
everybody(?). it says here, to the union or its
officers or agents. If it is given to everybody,
what does it become? It is a benefit.
o Sa election nato, bisag tanan botante
hatagan nimog kwarta aron muboto
nimo, unsa mana? Violation gihapon na
sa Omnibus Election Code. Bisag pa
tanan.
o Pero dinhi sa LabRel, mahimo, palitan
nimo tanan, basta tanan hatagan nimo.
Union gani naghatag, thats the common
coffers, or only the officers, it is a bribe,
therefore, IT IS ULP.
And then:
i. To violate a collective bargaining agreement.
Of course with a proviso that:
what is violated is ECONOMIC provision
and the violation is gross in nature, flagrant and
malicious refusal to comply with the economic
provisions of the CBA.
That is ULP committed by the ER.
ULP COMMITTED BY LABOR ORGANIZATIONS (LO)
ART. 259 [249]. UNFAIR LABOR PRACTICES OF LABOR
ORGANIZATIONS. It shall be unfair labor practice for a
labor organization, its officers, agents or representatives:
(a) To restrain or coerce employees in the exercise of
their rights to self-organization. However, a labor
organization shall have the right to prescribe its own
rules with respect to the acquisition or retention of
membership;
(b) To cause or attempt to cause an employer to
discriminate against an employee, including
III Manresa 2014-2015
discrimination against an employee with respect to whom
membership in such organization has been denied or to
terminate an employee on any ground other than the
usual terms and conditions under
which membership or continuation of membership is
made available to other members;
(c) To violate the duty, or refuse to bargain collectively
with the employer, provided it is the representative of the
employees;
(d) To cause or attempt to cause an employer to pay or
deliver or agree to pay or deliver any money or other
things of value, in the nature of an exaction, for services
which are not performed or not to be performed,
including the demand for fee for union negotiations;
(e) To ask for or accept negotiations or attorneys fees
from employers as part of the settlement of any issue in
collective bargaining or any other dispute; or
(f) To violate a collective bargaining agreement.
The provisions of the preceding paragraph
notwithstanding, only the officers, members of governing
boards, representatives or agents or members of labor
associations or organizations who have actually
participated in, authorized or ratified unfair labor
practices shall be held criminally liable.
BQ: What is a SWEET HEART CONTRACT?
It is supposed to be an oxymoron. If you are
sweethearts, you dont have a contract. You
may have an understanding, there is no
contract. It degrades the relationship if you have
a contract.
That is why in Labrel: A sweet heart contract is
illegal. When a contract only offers, CBA only
offers labor standards benefit or lower, that is a
sweet heart contract.
This is a ULP. There have been decisions of SC
which called this an ULP for LO to ask for or
accept benefits that are already granted
by law or even lower than that.
a. To restrain or coerce employees in the exercise
of their rights to self-organization.
However, a labor organization shall have the
right to prescribe its own rules with respect to
the acquisition or retention of membership;
b. To cause or attempt to cause an employer
to discriminate against an employee, including
discrimination against an employee with respect
to whom membership in such organization has
been denied or
to terminate an employee on any ground other
than the usual terms and conditions under which
membership or continuation of membership is
made available to other members;
Especially in cases of enforcement of union security
clause (USC) that is what happens.
Illustration: They have somebody they dont like, they try
him for *** then they dismiss him, then they go to
management on the strength of the USC to dismiss him
since he has been expelled from the union. That act is
ULP.
c. To violate the duty, or refuse to bargain
collectively with the employer, provided it is the
representative of the employees
d. To cause or attempt to cause an employer to
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pay or deliver or agree to pay or deliver any
money or other things of value, in the
nature of an exaction, for services which
are not performed or not to be performed,
including the demand for fee for union
negotiations;
These are kickbacks, the original kickbacks. Diri mana
gikan ang kickback. Again that comes from the US
underworld war.
Illustration: Ngadto sa mga pier, sa mga sakyanan didto
kay daghan man kaayog delivery, ingon mana sila sa mga
consignees sa pier, wala moy kabalakan kay bayran ta
mo ug gamay sa inyong mga kagamiton. Nothing will
happen to your karton(?), well just give you certain
sums. Dili ko muhatag. Nailad ang mga tao dira. Naay
forklift, tuhugon, isahaon nang mga tariba (joke: tarib in
English. :P) pagkalupyak anang displayhan nimo, wala na
may mupalit ana. *stories na mga lupyak na whatever;
mafia stories*
SEPTEMBER 18, 2014 (5)
Before we leave unfair labor practice, I would like to utter
out the RARE INSTANCE WHEREIN YOU CAN UTTER
THREATS OR MAKE PROMISES WITH IMPUNITY.
That is a rare instance but it is there and it is provided by
the labor code. When is that? It is Article 238. That is
privileged communication.
Article 238.[233]. PRIVILEGED COMMUNICATION-
Information and statements made at conciliation
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 proceedings conducted by them.
So during conciliation, even if presided not by conciliators
or mediators, cause it says: conciliators or similar
officials.
Illustration: Sometimes the conciliators will use a
prominent figure which carries respect for all parties. Let
us say you will ask the mayor to conciliate and mediate
because the mayor is respected by all the parties
concerned, the labor union members, the officers, the
employer. They will ask the mayor to conciliate. That is
still technically mediation under art. 238 and it is
privileged.
GENERAL RULE: So, whatever the parties say there
cannot be used in evidence in any forum.
So, if the employer threatens during conciliation, it is
NOT UNFAIR LABOR PRACTICE. It is, but you cannot
use it. You cannot prove it. You cannot bring it in
evidence. It is inadmissible as evidence because of art.
238.
You might make a promise during conciliation
and mediation, you can make an admission
during conciliation and mediation. BUT YOU
CANNOT BE HELD TO IT IN ANY OTHER
FORUM.
So, this is the time that you can do all the
threatening you want- during mediation and
conciliation. You can make all sorts of promises
and you cannot be held to it should mediation
and conciliation break down.
Why? Because it is privileged in nature.
III Manresa 2014-2015
What is the reason why it is privileged?
So that the parties will completely open up
during the conciliation, that all avenues for a
possible settlement may be explored. No holds
bar. Thats the whole idea why it is privileged
and confidential. Heart to heart namo
magsultihanay dinha.
Now, that in order to get that, the law
guarantees that it is privileged communication.
You cannot use it in court. You cannot use it
before the NLRC. So you cannot file an unfair
labor practice complaint.
[EXCEPTION] Later on we will see this land mark case of:
Philippine Airlines vs. Secretary
SC says that because the NCMB reclassified the notice of
strike from a notice of strike to preventive
mediation, the SC says: that shows that the grounds
cited in the notice of strike is not strike-able because the
NCMB downgraded the notice of strike to preventive
mediation. [this is what happened during NCMB
conciliation]
Now, how did the Supreme Court learn that the NCMB
did that? Did the NCMB testify? Because it says they
cannot testify in any proceeding. It is supposed to be
privileged in nature.
That Philippine Airlines vs. Secretary case is just
an instance where everybody just forgot about
this (inaudible). The unions counsel forgot
about it, he should have objected- you cannot
use that. But the unions counsel did not object
so it is carried. JUST LIKE PRIVILEGED
COMMUNICATION IN THE RULES OF
COURT, YOU HAVE TAKEN THAT UP, IF
YOU DO NOT ASSERT IT. YOU WAIVE IT.
So, keep this is mind because even the Supreme Court
forgot about this.
There is another case
The Supreme Court censured the NCMB Director himself-
Atty Oralla, for revealing what took place during the
negotiation. The SC says- That is inadmissible.
CONCLUSION: What does this tell you? So if you want to
threaten call a mediation and conciliation meeting. That
is where you threaten and you can do it in impunity. If
you also want to make a promise, that is also where you
offer and you can do it with impunity. Under of the
protection of privileged communication.
STRIKES AND LOCKOUTS
Now we go to Strikes and Lockouts. There are only 3 or 4
provisions on strikes and lockouts. What are those?
Art. 277 which used to be 263,
Art. 278- prohibited activities, and
then you have Art. 279- Improved offer
balloting, and
Art. 280.
The first two are the kilometric provisions of the Labor
Code on Strikes and Lockouts.
What is a strike?- the definition of a strike is found,
before it used to be in Art. 212, now it is in Art. 219,
letter (o).
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Art. 219.[212].(o) Strike means any temporary
stoppage of work by the concerted action of employees
as a result of an industrial or labor dispute.
If you want to learn the meaning of a lockout:
that is what the employer does equivalent to a strike. A
lockout is when the employers will not grant work to the
employees as its way of expending the bargaining with
the employees.
Means the temporary refusal of the employer to furnish
work as a result of an industrial or labor dispute
Three elements in the definition of a strike:
1. Temporary stoppage of work;
2. By the concerted action of the employees;
3. As a result of an industrial dispute.
When an employee goes on strike, he CONTINUES TO
BE AN EMPLOYEE. He does not renounce employment
by not working. Take note of that principle.
If you do not show up in court what is the meaning of
that?
You waive your right to be heard. You are
declared in default and the hearing will continue
ex parte.
Di ka mutuman sa trabaho. Unsa may pasabot ana? Di na
ka gusto ma empleyado ka?
NO! The law does not recognize that conclusion
because the law recognizes a temporary
stoppage of work. You are still an employee.
For how long can you continue to be an employee and
not show up for work because you are on strike?
Take a look at the definition of an employee in
art. 219 (f)
As long as he has not obtained any other
substantially equivalent and regular
employment
Art. 219.[212]. (f) Employee includes any person in the
employ of an employer. The term shall not be limited to
the employees of a particular employer, unless this Code
so explicitly states.
It shall include any individual whose work has ceased as
a result of or in connection with any current labor dispute
or because of any unfair labor practice if has not
obtained any or other substantially equivalent and
regular employment.
Illustration: Management by an act of ULP, dismisses an
employee as a consequence that is a ground for a strike.
The union goes on a strike. The strike is prolonged. Are
the employees who are on strike still employees?
Yes by definition temporary stoppage of work.
How about the one who got axed/dismissed? Is he still an
employee?
From this definition, yes, it includes any
individual who is dismissed as result of or in
connection with any current labor dispute
or because of any ULP. If, he has not
obtained any other substantially equivalent or
regular employment.
This last phrase any other substantially equivalent or
regular employment, comes from a decision of the SC in
the Celebrated case under the Industrial Peace Act. RA
875.
Far Eastern University vs.CIR
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The faculty went on strike because the President of the
faculty was unceremoniously dismissed by management
for forming a union.
At that time the contention of Far Eastern University is
that the teachers cannot form a union because the labor
relations law only covers a shop floor not a school.
That is their contention.
If you are a tertiary level school and by that very fact you
ante-dated the industrial revolution, faculty and school
are governed peculiar protocols that is not shop-floor
protocol. That is why tertiary level professors in the US
cannot form a union. They are governed by different
protocols.
Teachers in the secondary and elementary level they can
form unions. But tertiary level, they cannot. Why? A self-
respecting college or university is governed by the tenure
system.
You apply to a school and you teach, you are an
instructor.
Then you are promoted to assistant professor.
Who promotes you? There is what you call a
tenure committee. The tenure committee is
selected from full professors of the teaching
faculty. Mu-boto na sila nimo.
What is their criteria? Your grading as an
instructor, your teaching ability. But the most
important part of the criteria is your research.
What research papers have you published?
What books have you published? What standing
does it have in the academic community? That is
why there is a saying there as it goes- publish
or perish. You cannot be a full professor if you
have not published.
Skwela kag Ivy League School (enumerates
schools in the ivy league), kanang mag atubang
nimo, kanang imong gi-kuptan, mao nang nag
suwat sa libro. Kanang nasa imong atubanga.
Bati kaay mu tudlo pero award-winning ang
libro. Makatulog ka kay iya raman basa-basahon
nang iyang libro. Ngano di naman siya
maniguro?- full professor naman siya. Security
of tenure. Kanang mga full professors they
teach one subject, the rest of the time they do
research. They do not even correct test papers.
Who does the correcting?- its the teaching
assistant. The TA who is also a graduate student
on his way on becoming a PhD. Mao nang silang
boy sa professor. (more on teaching assistants).
ANG POINT IS: Full Professor CANNOT BE EMPLOYEES
because they themselves decide their tenure. There is no
union there in tertiary level teaching professor because of
that peculiar protocol that the academic teaching
community, your peers determine who will be their peers.
The President of the union, one of the instructors of FEU
was unceremoniously dismissed. Strike! Assumption of
jurisdiction by the Secretary, go up to the court of
industrial relations, finally to the SC. It took 10 years for
the case to be finally settled.
In the meantime what did this President of the union who
was dismissed do? He applied for work in the Central
Bank and they accepted him as researcher. And in fact he
was paid double his salary that he was paid in FEU kay
instructor lang man siya sa FEU unya librarian. Wa man
na siyay graduate degree. Pag apply niya sa Central Bank
as researcher, he climbed the ladder and became Senior
Researcher and was receiving double the salary.
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When the judgment on that FEU vs. CIR case became
final and executory, the SC said: FEU committed ULP,
the strike was legal, all the employees that were
separated, that were suspended, the strikers must be
admitted back to the university.
Present siya sa iyang kaugalingon- pare ko! Biyaan nako
akong trabaho na doble ang sweldo. Then management
says WE CANNOT ACCEPT YOU because you have
obtained a substantially equivalent and regular
employment. You are no longer just casual. You have an
appointment and you are regular. So you cease to
become an employee. What did the SC say?
No, the fact that you get double the salary
and you are now a regular employee does
not mean that you have obtained a
substantially similar and regular
employment.
Why? the SC says: because in the Central Bank
you will remain forever a researcher, you can
never aspire to be a Central Bank Governor
because you are not qualified. You have no
career path. But in a University, because you are
a librarian, you can aspire to move up the ladder
and be the Chief Librarian of the university.
CONCLUSION: So, your taking up a regular
appointment in the Central Bank DOES NOT
MEAN you have ceased to be an employee. FEU
is ordered to reinstate Mr. So and so with full
back-wages. Mura siyag nakadaog ug lotto. Ten
years of back-wages.
Thats why they put this in the Labor Code,
Article 219 (f).
Illustration: You are a welder, nag strike mo, lagpot ka,
apply ka, unsa man ang second career nimo? Beautician!
In a fashion parlor then you become good at it. Katong
straight himuon nimog kulot, kadtong kulot buhaton
nimong straight. Suppose you win an award- the most
creative hairdo. Naa ka sa newspaper. Karon na settle na
ang strike ninyo gusto naka mubalik sa pagka welder.
Mahimo pa kaha na?
YES! Following the doctrine now enshrined in
art. 219 (f) the presumption is that unless you
have obtained a substantially equivalent
employment, YOU ARE STILL AN EMPLOYEE
because a strike does not severe the employer-
employee relationship.
That is also one of the reasons why, if you recall, of the
four requisites of the employer-employee relationship (1.
Selection in hiring, 2. Payment of wages, 3. Power to
dismiss, and 4. Power of control).
Now, let me ask you is there anything in the requisites
that say exertion or rendition of service? those are four
requisites. Ngano man walay service dira? Naay sweldo,
ngano walay service? Selection in hiring, you are hired.
Hired, bayad ug sweldo, power to dismiss, power to
control. But it does not say rendition of service. Why?
There is none because EVEN IF YOU ARE ON
STRIKE AND YOU DO NOT RENDER
SERVICE you are still an employee there is still
employer employee relationship.
Illustrations na dili kelangan to render service
para EE:
You are an employee human mag bakasyon ka
together with your vacation leave, wala ka nag
render ug service, nagpa hayahay ka, employee
gihapon ka. That does not cut employer-
III Manresa 2014-2015
employee relationship. Please remember that.
Basic! Basic na! Basic!
Pag pirma nimo sa kontra, wa pa man ka nag
render ug service, if it is a written contract and
you have accepted it because you have
accepted a job offer: Dear Mr. So-and-so
welcome to the family of Shell Oil Company of
the Philippine/Pilipinas Shell, you shall be an
engineer in training. Your responsibilities will be
provided you by separate cover after you report
to your supervisor-mr. so-and-so. Your position
carries with it compensation annually of, let us
say, $63,000. If you are in agreement with this
job offer, kindly sign your conforme below in the
space provided for. Welcome to Shell. Pirma
dayon ka. Pag human nimog pirma unsa man
na? that is a perfected contract. You are already
an employee.
o Maigo kag kilat kay naa ka pasulod ka
sa shell headquarters, maigo kag kilat,
employees compensation ka na. Work
related injuries, sickness or death ka
na. nakahatag na ba kag service? Wa
pa. nagpahayahay paka wa paka
nakatrabaho na igo naka. Are you
already an employee? Yes you are!
Remember that kay gamay kaayo
commentator nakasabot sa employer-
employee relationship enough to
discuss that. You are already an
employee.
That theme is carried out here. Mu strike ka, you are an
employee while you are on strike. It really goes against
our culture. Supak kas sa imong hagalon, bandera
bandera ka dira, wa ka mutrabaho- purposely. Are you
still an employee of your employer against whom you are
on strike?
Yes you are.
If denies it, if he does something as if you are
not there, he commits ULP. Because he does
something that changes the terms and
conditions work because of your exercise of your
right of self-organization. Striking is a right.
Now, you might say there are three elements:
1. Temporary stoppage of work;
2. By concerted activity of the employees;
3. As a result of an industrial dispute.
Let us take the third point. What is an industrial dispute?
An industrial dispute according to Art. 219 (L):
Art. 219.[212]. (l) Labor Dispute includes any
controversy or matter concerning
terms or conditions of employment or
the association or representation of persons in
negotiating, fixing, maintaining, changing or
arranging the terms and conditions of
employment,
REGARDLESS OF WHETHER THE
DISPUTANTS STAND IN THE PROXIMATE
RELATION OF EMPLOYER AND
EMPLOYEE.
Shortcut definition of labor dispute. Its either a
controversy of:
terms and conditions of work or
right to self-organization.
NO OTHER!
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Mag strike mo? O mag strike mi. ngano man? Unsa may
mulo ninyo sa inyong kagalon? MAG STRIKE MI KAY
GI PASAKA USAB ANG PRESYO SA
LANGIS/GASOLINA. Kinsa man mag buot ana imong
kagalon? Dili kay restaurant man na siya. Ngano strikan
man ninyo? Mao nang sugo sa among mga amo na lain.
Kinsa man imong amo?- KMU. Is that a strike?
That is NOT A STRIKE according to the
definition and yet every town they can hurry,
every pedestrian who knows nothing calls it a
strike. IT IS NOT A STRIKE.
Kay nag strike ko mao nang di ko mutuman sa
trabaho. Wa ka mag tuman sa trabaho? AWOL
ka. Absence without leave. You are not on
strike. You promote it, marcha marcha dirag
dugayon nimo. Abandonment ka.
Association of Concerned Teachers vs. CA
Approve increase of salary of teachers, thats a law,
signed by the President, published in 2 newspapers of
general circulation. Wa gihapon ni implement si
President. Strike sila, biyaan nila ilang mga klase, ngadto
sila sa Malacanang. They could not approach Malacanang
because the soldiers where there, police nagkampo sila
didto. Usa ka adlaw, usa semana, tulo ka semana, tulo ka
buwan. Education secretary says if you will not come
back you will be cut-off from the roster of teachers.
Going once. Going twice. Three times. Final. Youre out.
What was their defense? their lawyer was dean Bacungan
of UP Law Center, UP Lawschool. Unsa man depensa ni
Bacungan? these teachers were NOT ON STRIKE. They
were in the exercise of their constitutional right
peaceably to assemble for redress of grievance? They
have a right to that increase, it is already a law. The
budget secretary has not released it to them. Unsahon
man niyag release, wa may kwarta. They passed a law
but there is no source. Are they on strike or not?
SC says- if you had said after staying there in
Malacanang for three days that you are
peaceably protesting your violation of your right
for redress of grievance, that might have
been correct. But if you have stayed there for
three months, you are VIOLATING CIVIL
SERVICE LAW. Violation on going on strike,
abandonment of your students, dereliction of
duty. THEREFORE, YOU ARE OUT.
SEPTEMBER 18, 2014 (8)
If a strike is a CONCERTED ACTION, then the subject
of the right is plural, not singular.
But then there is a controversy, as to the seat of the
right. Where is the right located? Is it in the collective of
the employees that make up the union or is it the
juridical person of the labor organization? That is the
issue and the text of the law lends itself to either
interpretation. Why?
219[o] says, a seat of the strike is
COLLECTIVE because it says by the
concerted actions of the employees ,
plural.
277b second sentence says The right of
legitimate labor organizations to strike
and picket and of employers to lockout
So where is the right? The rights seems to be IN THE
LEGITIMATE LABOR ORGANIZATION WITH
JURIDICAL PERSONALITY. This makes a difference.
Someday the SC will have to come out with the decision
spelling out where the right really belongs.
III Manresa 2014-2015
Illustration: Suppose there is the workplace that is being
organized into a union, but the ER is not sympathetic, in
fact he is hostile and starts to committing ULP, delays
payment of salary, does many things to pressure
employees to give up.
What workers do? They go to federation, give us charter
certificate so that we can file a petition for certification
election. So the federation gave them a charter
certificate. They filed the petition. Once they have filed
the petition, management even becomes more hostile to
them. So the union asked the federation what do we do.
The latter says we will declare a strike. Give us your
papers right away, so that you will have full personality,
your organizational meeting, adoption of minutes, your
list of officers, list of members. File a notice of strike.
Right away, the federation asks the officers to sign and
file the notice of strike.
After they have filed a notice of strike, there are 3 rd
parties and tell officers dont you know, you have the
worst federation! Walay giagian ana na employer na wa
nagsira. Naglagot mo sa inyong employer. You are
jumping from the frying pan right straight to the fire.
Paghuna-hun mo ana workers.
So they disaffiliated and they filed an independent
registration under 234. File sila ug independent
registration and they are granted independent
registration. So once again, they are a union. Now, they
file a petition for certification election. Do they still have
to file a notice to strike?
IT DEPENDS:
o If the RIGHT BELONGS TO LABOR
ORGANIZATION, their first notice of
strike is already gone because it was
filed by another labor organization
which they are no longer affiliated with.
o But if IT BELONGS TO THE
COLLECTIVITY OF PERSONS, they
are the same persons they dont have
to file anymore.
It is important to discuss the filing because the cooling
off period is determined from the time of filing. If the
employer is already firing so many people one after
another, you do not want to waste time. You want the
cooling off period to be shorter. So it makes a difference.
Where is the right to strike? Is it with the warm bodies
that make the union? Or is it the so-called legal
personality of the union? That is an open wisdom.
SC, 12-15 years ago, did have the chance to rule on that
but, it did not rule. What case was that?
No Citation, BPI-Davao City Case
It was here in Davao. BPI. The branches of the Davao
region are unionized. They are unionized. They used to
be under NAMAMIN-KMU. Nagkahiusang Mamumuo sa
Habagatang Mindanao. The first president of NAMAMIN-
BPI was the late father of counselor Lea Librado. He was
the first president. He was the one who held a strike.
Now, there is a big controversy decided by the SC 2 years
ago. You know BPI bought Far East Bank. Far East Bank
is not unionized. The biggest branch of Far East Bank in
San Pedro says that they dont want to be a union. why
are we forced to become a union member by the union
security clause?! Does it bind us? We have already
exercised our right to self organization. we dont want a
union! Why are we made to be a member?!
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The union says you are not a part of the bargaining unit!
There is a union security clause that says within 2
months from you becoming a member of regular
workforce, you must become a member of the union.
Very long decision. You should read that.
SC says, THEY DONT HAVE TO JOIN THE UNION. If
they will be forced under pain of dismissal that is a
violation of their security of tenure. This clause must
be interpreted in favor of individual labor not the
labor that is the big L labor organization. That must be
interpreted in favor of the warm body that is the laborer.
Read that case that is very interesting. You can see
principles of labor clashing each other.
Three elements of the right to strike until the SC in a
decided case which is a political case COMES UP
ANOTHER ELEMENT ADDING A FOURTH ELEMENT.
PHILIPPINE BLOOMING MILLS EMPLOYEES ASSOC. VS.
PHIL. BLOOMING MILLS.
Phil. Blooming Mills is a corp organized in the business of
manufacturing of a steel products. So, it is not a textile
mill. It is a mill for steel. Its workers organized in the
union went to strike. In the course of strike, the strikers
picket lines were bruttally dismantled and disrupted by
the so-called members of the Pasay City Pulis dressed in
civilian clothes. Union members knew that. They
recognized the Pasay City police.
They entered into the compromise agreement and went
back to work but they still feel a sense of injustice. So,
they decided that they are going to march and protest to
Malacanang, air their grievance against the Pasay police.
Now, when the employer found out about it, the
employer called the leaders. Employer said, you are
protesting against the government, we are not blocking
you. Go and protest. Were just asking you this, leave
behind a skeletal force, enough to keep the heaters of
the company so that the temperature is kept within being
restored. The steel is cooked at 2,000 degrees centigrade
and from 0-2000, it needs 4 days to do that and when
you cool it down, you also need 4 days. So if all of you
march, necessarily, you will lose 8 days.
So, the union leaders say we will meet and decide
among ourselves. They met, they decided either all of us
march or none of us will march. They marched. When
they came back, notice: all the officers of the union
are dismissed for grave insubordination. Result of
the insubordination is the itemized loss of the company.
They were dismissed. The union filed an illegal practice
case. ULP dismissal case. why are we dismissed for
exercising our right to self organization?!
SC: remember this is still the height of martial law. This
case is 1973 penned by SC Justice Makasiar. Makasiar
says, the bill of rights is not a list of equal rights. There
is a heirarchy. Some are more important than others.
What is the most important right? It is the right to
peaceably assemble and redress the government
for grievance. Now, that is what the union members
were exercising. So, they were not exercising the
right to self organization. They were exercising
their civil rights. Range against that right is the right of
the employer to profits. That is a property right. When
you weight property right against civil right, the more
weighty right is the civil right.
III Manresa 2014-2015
Is management here reasonable by requiring skeletal
force to leave asking them equivalently not to exercise
their civil right?
SC says NO. The employer is being
unreasonable. Why? Civil rights are so important
that it must be exercised and open to be
exercised by all. If there is one that cannot
exercise that right, then the rights of all is in
danger. The freedom of 1 is freedom of all. So,
it is essential that all the workers agreed to
march peacably assemble to redress their
grievance.
Now, did they commit an illegal strike because that is the
charge; officers are dismissed because they led an illegal
strike, grave insubordination?
THERE WAS NO STRIKE. Work stopped not by
their concerted action. Work stopped
because they exercised a superior right
which is peaceably to assemble and
petition the government for redress of
grievances.
So therefore, what is the element introduced by this
case?
4. That there must be an intent to work stoppage
that it CANNOT JUST BE A BY-PRODUCT OF
A LEGITIMATE OR VALID ACTION. If it is a
by-product work stoppage and you did not
intend it, then, there is no strike.
Now, some 15 years later, there is this case of:
GSIS represented by President and General
Manager vs. CA.
You know, Arroyo appointed Winston Garcia and if you
will read, most of his cases, he loses. He cannot be found
now. Now, he put under investigation the president of
the union because the president of the union refused to
sign of the waiver of certain benefits that Wiston Garcia
no longer gives to GSIS. Because he refused to sign, he
put him under investigation.
So, the president says, I am under investigation, I am a
lawyer, but I want to hire counsel to defend me under
investigation. I have that right under the Civil Service
Law. Who is the lawyer? The former president who is
also a lawyer.
Now, GSIS says No you cannot have a lawyer, we need
all people working. I have assigned him somewhere to go
auditing.
But then the lawyer refused to go and insisted that he be
the counsel and other union members wrote Winston
Garcia telling him you are being unjust!!! we will hold it
in one straight day here in the main office. It will be
closed doors. It will be fast investigation.
Union members say no! Union officers went on the day
of investigation. union officers left their places to be
there and support the president who is under
investigation. The former president did not go to the
assigned work because he was needed to stand as
counsel of the incumbent president. Garcia discontinued.
Then he filed a case against these 2 presidents. For
staging a strike-work stoppage. He also charged the
other union people who were there to attend the
investigation for an illegal strike. Civil Service Shutdown
Mr. Garcia.
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SC reiterated Phil. Bloming Mills. If at all there was work concerted action of employees as a result of the
stoppage, it was not at all intended. That work stoppage labor dispute.
CANNOT BE DENOMINATED AS STRIKE.
For the work stoppage to be a strike, it must be The difference between a picket and the strike is that
intended.
Strike Picket
So, you will find in jurisprudence, I still have to find a strike has a prior Picket, there is none. In
case where the SC declares an illegal strike that was procedural and substantial fact, there cannot be any
conducted just for 1 day. Its not yet here. I still have to requirement prior requirement because
find. that would constitute prior
restraint. Picketing is a
Kiokloy case species of freedom of
speech and any form of
Wa man tubaga ang ilahang collective bargaining censorship, licensing, etc
proposals. They left their work, they went to the main that is called prior restraint
office. we will not go back to work unless you have and the SC says, that is
answered our bargaining proposals. Kiokloy never presumed invalid because
answered. Later on, illegal strike., work stoppage, by the it curtails freedom of
concerted action as a result. Is there a strike? speech.
THERE IS NO STRIKE. It was not intended. They
were just enforcing their right for a Freedom of speech is so
counterproposal at the end of 10 days from important that it should not
submission of their bargaining proposal. be curtailed and if it is at
all to be curtailed, then the
CONCLUSION: So, its not in the statute 219[o] but there law curtailing it comes into
is a fourth element: the work stoppage must be the court with the heavy
intended and not just a by-product of a valid and burden of proving its
legitimate act. validity. That is the only
time when the law is
Illustrations NOT A CRIME because NOT presumed invalid if it is in
INTENDED: any form prior censorship
Maayo imong pagdrive. Nag-observe ka sa or restraint.
speed limit. Maayo imong pagbreak. Nikalit lang
ug labang ang tao. Naligsan nimo siya, patay. Illustrations:
You are doing something legitimate. You have Picket can be exercised individually or
not broken a law. Patay na naligsan. Naligsan collectively. Gikuha nimo ang karton sa gatas.
siya kay nagkuot siya sa iyang bulsa ninaog sa Imong gigunting, gisulatan nimo sa likod, INOT
jeep unya nahulog man na iyang 10 pesos, AKONG AGALON! DI MUHATAG UG INCREASE!
iyahang gigukod sa tunga sa dalan. Namatay TAN-AWA AKONG BUHOK PUTI NA! WA GYAPOY
siya sa tinguha ng makuha ang 10 peso-coin. INCREASE! lakaw2 ka dinha. Picketing is a
Did you intend the death? is that negligence form of freedom of speech.
resulting to homicide? NO NEGLIGENCE.
NOTHING. Now, what happens if it is a supermarket, can
you picket in the supermarket and announce
Naay tao nag-commit ug suicide sa bridge. Unya that the supermarket is selling anti-labor
gabii man, nilukso siya. Wa man siya kakita nga grapes?
naa diay tao didto sa banka namasol. Ang o That is allowed, according to the US
naluksuhan mao nuon ang namatay. Siya ang Supreme Court. That is freedom of
buhi. Can he be charged with negligence speech.
resulting in homicide? Is there a law against o Is there a EE-ER relationship? No. they
commiting suicide? None. Ayaw lang tabanga are advertising making the public know
kay kana crime na na, assisting to commit the controversy that is involved.
suicide. Is there an intent in this case?
Suppose the supermarket owner says, we are
That is the same with strike. selling both kinds of grapes: anti-labor grapes
and pro-labor grapes. And then you go back
Strike and picketing. Picketing is what we noticed and we and forth carrying this placard saying, do not
say ah, nagstrike na sila?. Muage ka dira sa Roxas, patronize this supermarket, they sell anti-labor
unya makakita ka anang ga-martsa-martsa gadala ug grapes! You are not doing any harm to grapes.
placards. Muingon ka ahh nagstrike na sila. You are being discriminatory. You have no right
WA NA GA-STRIKE! Ga-picket na! to do that. That is speech that is harming the
best interest not only the supermarker owner
Principle: It is possible to have a picket without a strike. but also the owner of the grapes who are your
friends. So, can a restraining order be issued
Illustration: Suppose the workplace is on a 3-shift basis. against that speech? That is discriminatory.
Strike ang union, unya niana sila ayaw! Picket lang ta! What did the US Supreme Court say?
ohhh pagka-off sa first shift, sila ang martsa dira; pag- o That is NOT DISCRIMINATORY
off sa second shift, puli didto pahulay ang usa. Gatrabaho SPEECH. That is minor compared to
tong katulo. Puli2 sila. the evil to be continued to be
WALAY UNDANG ANG TRABAHO. There is perpetuated. So, the TRO cannot be
no work stoppage but there is a picket. issued against the picketers.
Is the definition of the strike complied? NO
because it says temporary work stoppage by the Principle: Government workers can be prevented from
striking.
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Supreme Court says, there is as yet no law granting
government employees the right to strike. It is my
submission that until you amend the Constitution, you
cannot grant the government employees the right
to strike because government employment is a public
trust. He is not holding a property right. He is holding a
public trust. Kanang imong trabaho tulubagon na sa
katawhan. Mao ng ingon ni Pnoy, kayo ang boss ko!
ampingi ang silhig, daspan kay manubag ka ana sa
katawhan. Until you change that, you cannot give the
right to strike to the government employees. That is just
my submission.
Why is the provision on strikes kilometric? Ngano taas
man ni kaayo?! Article 277. Because there are so many
prior requirement before you can go to strike. So, the
whole course of the strike is, in fact, just knowing 2
BASIC DIVISIONS:
1. Substantial requirement
Positive [3]
Negative [3]
2. Procedural requirement
positive [6]
negative [3]
Mao lang na inyong timan-an, whether or not it is in
compliance. Ayaw na pangita ug lain pa.
CONSTRUCTION: Strikes are interpreted strictly against
the labor. It is the only law that is interpreted against
labor in cases of doubt. Other than that, all labor laws
are interpreted in favor of labor.
SEPTEMBER 24, 2014
I would like to discuss to you about the recent decisions
of the SC, you need to read this for political law and
labor,
EN BANC
G.R. No. 170139, August 05, 2014
SAMEER OVERSEAS PLACEMENT AGENCY, INC.,
Petitioner, v. JOY C. CABILES, Respondent.
Leonen
The SC here overturned the ruling of the CA and found
that the overseas workers illegally dismissed.
Now the RA8042 migrant workers act there is a
provision there that was declared unconstitutional by the
SC. That provision says that if you are illegally dismissed
you, by your overseas contractor, are entitled to the
balance of the equivalent aggregate salaries of the
balance of your contract or your 3 months wages for
every year of service whichever is less that is the wording
of the law.
Now the SC declared it as unconstitutional for being
discriminatory. Why is it that if you are here there is such
rule, but if you are a maintaining overseas that is the rule
you are paid less not the balance.
Now congress in an amendment of RA 8042 which is
10022 they have legally the same provision, word for
word. Now this illegal dismissal of the case still was
covered by RA8042 but by the time the judgment was
promulgated what is now controlling is RA1022, the SC
says, our ruling in this case will create confusion in the
reinstatement and collection of back wages who are
illegally dismissed because congress repeated has the
same provision in the 10022.
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And Leonen says, the court cannot declare yet 10022
unconstitutional because the court is still waiting for
another case, that this is the very lis mota, then we can
decide. Now the SC take it as exceptional and declared it
as unconstitutional.
Can you imagine that? Precisely the court needs a
particular case, and the law that would be applied before
you can declare the law as unconstitutional because
otherwise you can be the congress also.
This is the decision and it is en banc and unanimous.
Only Sereno did not vote because shes on leave
otherwise it is 14-0. This is the man who also authored
the Bangsamoro, so there are many questionable
provisions.
If you are taking the bar now there is a good chance that
it will be asked in the bar. It will be good if you have solid
ideas about it because it refers to the fundamental
principles in political law not to mention remedial law.
We are now in strikes and lockouts. We said that before
court will grant, you have to comply with the substantial
and procedural requisites. In both substantial and
procedural requisites there are negative and positive
requisites.
Requisites of a strike: Art. 277 and Art. 278
ART. 277 [263]. STRIKES, PICKETING, AND LOCKOUTS.
(a) It is the policy of the State to encourage free trade
unionism and free collective
(b) Workers shall have the right to engage in concerted
activities for purposes of collective bargaining or for their
mutual benefit and protection.
The right of legitimate labor organizations to strike and
picket and of employers to lockout, consistent with the
national interest, shall continue to be recognized and
respected.
However, no labor union may strike and no employer
may
declare a lockout on grounds involving inter-union and
intra-union disputes.
(c) In cases of bargaining deadlocks, the duly certified or
recognized bargaining agent may file a notice of strike or
the employer may file a notice of lockout with the
Ministry at least 30 days before the intended date
thereof. In cases of unfair labor practice, the period of
notice shall be 15 days and in the
absence of a duly certified or recognized bargaining
agent, the notice of strike may be filed by any legitimate
labor organization in behalf of its members.
However, in case of dismissal from employment of union
officers duly elected in accordance with the union
constitution and by-laws, which may constitute union
busting where the existence of the union is threatened,
the 15-day cooling-off period shall not apply and the
union may take action
immediately.
(d) The notice must be in accordance with such
implementing rules and regulations as the Minister of
Labor and Employment may promulgate.
(e) During the cooling-off period, it shall be the duty of
the Ministry to exert all efforts at mediation and
conciliation to effect a voluntary settlement.
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Should the dispute remain unsettled until the lapse of the
requisite numberof days from the mandatory filing of the
notice, the labor union may strike orthe employer may
declare a lockout.
(f) A decision to declare a strike must be approved by a
majority ofthe total union membership in the bargaining
unit concerned, obtained bysecret ballot in meetings or
referenda called for that purpose. A decision todeclare a
lockout must be approved by a majority of the board of
directors ofthe corporation or association or of the
partners in a partnership, obtainedby secret ballot in a
meeting called for that purpose.
The decision shall bevalid for the duration of the dispute
based on substantially the same groundsconsidered when
the strike or lockout vote was taken. The Ministry may at
itsown initiative or upon the request of any affected
party, supervise the conductof the secret balloting. In
every case, the union or the employer shall furnishthe
Ministry the results of the voting at least seven days
before the intendedstrike or lockout, subject to the
cooling-off period herein provided.
(g) When, in his opinion, there exists a labor dispute
causing or likely tocause a strike or lockout in an industry
indispensable to the national interest, theSecretary of
Labor and Employment may assume jurisdiction over the
disputeand decide it or certify the same to the
Commission for compulsory arbitration.
Such assumption or certification shall have the effect of
automatically enjoiningthe intended or impending strike
or lockout as specified in the assumption orcertification
order. If one has already taken place at the time of
assumptionor certification, all striking or locked out
employees shall immediately returnto work and the
employer shall immediately resume operations and
readmitall workers under the same terms and conditions
prevailing before the strikeor lockout.
The Secretary of Labor and Employment or the
Commission mayseek the assistance of law enforcement
agencies to ensure compliance with thisprovision as well
as with such orders as he may issue to enforce the same.
In line with the national concern for and the highest
respect accorded tothe right of patients to life and health,
strikes and lockouts in hospitals, clinics,and similar
medical institutions shall, to every extent possible, be
avoided,and all serious efforts, not only by labor and
management but government
as well, be exhausted to substantially minimize, if not
prevent, their adverseeffects on such life and health,
through the exercise, however legitimate, bylabor of its
right to strike and by management to lockout. In labor
disputesadversely affecting the continued operation of
such hospitals, clinics or medicalinstitutions, it shall be
the duty of the striking union or locking-out employerto
provide and maintain an effective skeletal workforce of
medical and otherhealth personnel, whose movement
and services shall be unhampered and unrestricted, as
are necessary to insure the proper and adequate
protectionof the life and health of its patients, most
especially emergency cases, for theduration of the strike
or lockout. In such cases, therefore, the Secretary of
Labor
and Employment is mandated to immediately assume,
within twenty-four (24)hours from knowledge of the
occurrence of such a strike or lockout, jurisdictionover
the same or certify it to the Commission for compulsory
arbitration.
Forthis purpose, the contending parties are stricdy
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enjoined to comply with suchorders, prohibitions and/or
injunctions as are issued by the Secretary of Laborand
Employment or the Commission, under pain of immediate
disciplinaryaction, including dismissal or loss of
employment status or payment by thelocking-out
employer of backwages, damages and other affirmative
relief, evencriminal prosecution against either or both of
them.
The foregoing notwithstanding, the President of the
Philippines shallnot be precluded from determining the
industries that, in his opinion, areindispensable to the
national interest, and from intervening at any time
andassuming jurisdiction over any such labor dispute in
order to setde or terminatethe same.
(h) Before or at any stage of the compulsory arbitration
process, theparties may opt to submit their dispute to
voluntary arbitration.
(i) The Secretary of Labor and Employment, the
Commission or thevoluntary arbitrator shall decide or
resolve the dispute within thirty (30) calendardays from
the date of the assumption of jurisdiction or the
certification orsubmission of the dispute, as the case may
be. The decision of the President,
the Secretary of Labor and Employment, the Commission
or the VoluntaryArbitrator shall be final and executory ten
(10) calendar days after receiptthereof by the parties.
SUBSTANTIAL REQUISITES
NEGATIVE
a.) The ground for the strike must not be
based upon an intra or inter union dispute
Illustration: let us say the union declares a strike to prove
to the ER that we have the numbers (old incumbent), the
ER is always declaring that the union dont have the
numbers that is why he refuses to enter a CBA, to stop
the results of the Certification Election, now it is 1 year
already from winning the certification election, we will
declare a strike against union A with union B. what is
that?
That is basically an inter-union dispute. You are
trying to prove that you have more numbers
that the other union, there is a conflict between
you and that union.
b.) The strike must not be based on a plain
violation of the CBA except when the
violation is gross in character.
That is, flagrant and/or malicious refusal to comply with
the economic provisions of such agreement. That is in
Art. 273.
Even it is an economic provision that is in question if the
violation is due to interpretation that is ambiguous, that
even if it is an economic provision and the ER refuses to
implement it,
that CANNOT BE A GROUND because it is not
gross in character. It is a question of
interpretation.
c.) The strike must not be based on a
trivial ground.
Reliance surety v NLRC
The rearrangement of the working space of this
particular insurance company, What is the workplace
of an insurance company? Just one giant hall, so many
desks lined up, people are pushing papers. Management
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found out that people have become too friendly and were
working slower and slower, so they re-arranged the
desks. The president of the union, didto nasa likod duol
sa kasilyas... he resented this. And the union
president filed a notice of strike.
This is a trivial ground. It must be a serious
ground.
What makes it serious is not so much the
reasonableness of the demand because it is not the
yardstick of the determination. Whether or not the
demand of the union for going to strike is not
granted, is not grave.
Its the AFFORDABILITY OF THE PARTY.
The legality of strike doesnt depend on the
reasonableness of the economic demand. At one
time or the other that which labor enjoys were
in the past impossible demands, that is in the
case of
San Carlos Milling vs CIR
Now if the reasoning goes this way, if reasonableness of
the demand is the yardstick the improvement of the
conditions of a working man becomes almost impossible.
The regular working hours before was 12, no one was
granting 8 hrs. When the workers were asking for 8 hrs it
was impossible. The working hours at the time of our lord
were 12 hrs. Why? Because the landowner goes out to
the market looking for more workers, he gets some and
he gets back at 12nn at 3pm and finally at 5pm in the
afternoon, it is just 1 more hr to go before sundown, and
he pays every each of them the same salary which is 1
days pay. You work where you could see! Which is in
contrast to what we have now, we dont see people
working in the fields during the daytime, you see them
working during the night time with lights, why? Which is
cooler? Thats what technology can do for you. When
everybody was working for 12 hours and you ask for 8
hrs that is an unreasonable demand and if you make that
your yardstick the working hrs can never be less than 12.
That is the reasoning of JBL REYES why that cannot be
the weight to establish a serious cause as a ground for
strike.
POSITIVE
a.) The strike must be based either a CBA
deadlock OR an unfair labor practice
So what is a CBA deadlock?
Now in the course of negotiation there are arguments,
counterarguments, sometime there is a draw out is that
already a deadlock? The court said that if it is a CBA
deadlock,
San Miguel Corporation v. NLRC
304 SCRA 1.
Deadlock is defined as the situation between labor and
management of a company where there is failure in the
collective bargaining negotiations resulting in a
stalemate. There is no more movement, there is no
more progress.
If you say we are deadlock here and we set it
aside and discuss another point in the
bargaining proposals, that is not yet a
deadlock because you are still moving, IN
OTHER WORDS NOT ALL DISAGREEMENTS
ARE DEADLOCK.
CAPITOL MEDICAL CENTER vs laguesma
III Manresa 2014-2015
February 4, 1997, 267 SCRA 503.
There is deadlock when there is complete blocking or
stoppage resulting from the action of an equal or
opposing force. The word is synonymous with the word
"impasse" which presupposes reasonable effort that
would create bargaining and which despite noble
intentions, does not conclude in agreement
between the parties
Positively, you must be able to tell whether it is
bargaining deadlock or ULP. IT MUST BE EITHER, IT
CANNOT BE BOTH.
Now what is ULP? ULP are any of those practices or
combination of those enumerated in 258 used to be 248,
what is it now?
b.) The ground for a strike must be a
serious ground.
That is the OPPOSITE OF TRIVIAL GROUND.
Illustration: In other words when that union will say that
we are declaring strike now, to recall our victory over the
strike last year and we finally we got what we wanted
for striking for 2 months so we are declaring a strike for
only 1 day, for anniversary. Ha! Are you kidding? For the
sake of remembering you will stop all work? That is not a
serious ground.
c.) The purpose AND the means of the
strike must be lawful
So if the purpose is trivial, if is not ULP, or bargaining
deadlock, but the means are legal they did not commit
any destruction of property you observe peaceful
picketing, is the strike illegal?
FOR THE STRIKE TO BE ILLEGAL BOTH
THE PURPOSE AND THE MEANS ARE
ILLEGAL.
The difficulty relating to MEANS is ALWAYS
VIOLENCE.
The occurrence of VIOLENCE IS NOT
ENOUGH to make a strike illegal.
It must be PERVASIVE VIOLENCE not
sporadic violence according to CJ Castro.
What is the opposite of pervasive violence?
Sporadic violence.
What happens when violence occur during this time?
If it is sporadic violence then there is possibility
that liability is individual, whoever
participated in that incident of violence is liable.
So you seek out who participated
o if you are in the union side you must
have people with cameras is it not? So
you record things.
o If you are the management you must
have not only cameras but cctvs. Para
klaro kung kinsa na!
Illustration: Strike! Naa sad ngpicket dra! Ang kompanya
gusto pulihan ang mga strikers para padayun ilang
trabaho, so ngdala sila og mga workers gikan sulod.
Padala sila og truck enclosed pa kanang 10 wheelers.
Unya pagsulod kay harangun mn jud na sa union arun
tanawon ang sulod. Dili mana magpahunong ng
management. Unsa man ilang buhaton? Butngan na nilag
grasa. Naa ba diay muhigda ana sa tunga? Mapagpaligis
jud mo? Unya magubot daun ang mga tao! tayog2x
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daun, balintuwangun dayun unya abrihan. Violence na
ba!
Unya unsa man ang gihimo og evidence to prove they
were involve in violence? The grease! Kung kinsa tong
nay grease apil to kay nihikap to sa vehicle. Question!
Does the union have the right to stop and scrutinize the
vehicle?
The answer is yes! It is one of its prerogatives
because otherwise their picket line would be
broken. It is Obstructing, impeding, peaceful
picketing, that is one of the prohibited practices.
Now if management is doing something
legitimate, let us say they are carrying food in
the offices or for management who are staying
within the company premises. That is legitimate.
Itapok lang na nila.
Remember the police cannot stay in the strike zone. They
must be at least 100 yards away from the strike zone.
Who has the right?
Now if the violence is PERVASIVE then THE WHOLE
STRIKE BECOMES ILLEGAL what is the consequence
of an illegal strike?
All officers who consented to, or endorsed to
strike, or voted for strike loses their employment
where as the ordinary members continues his
employment is not penalize thereby, that is the
consequence of an illegal strike.
What makes the strike illegal when it comes to violence?
Not just ordinary violence, not just sporadic
violence, not just violence that happened
incidental to the strike, but pervasive violence.
DOES VIOLENCE HAVE TO OCCUR TO MEET THE
PERVASIVE VIOLENCE CRITERIA?
The answer is no! The CIR before under the
industrial peace act RA 875 declared a strike as
illegal even before an act of violence has
occurred.
When? When the probability of pervasive
violence becomes imminent.
Illustration: Naa nay mga reports hasta tong mga tua sa
bukid ninaog na tanan workers nagdala na og kadena,
chikorno, dos por dos, tubo, nglingya na sila. Unya
maghuwat paka na mbunalan?
Kuha na ka dayun og restraining order! These
are prohibited activities.
Mao man tong nahitabo sa TSC of which PNOY is so
ashamed about. CJ Castro has a very discerning note in
his very famous ponencia en banc by the SC, he says:
the legislature must certainly have been aware that
violence can occur instant, if not if it is likely to occur
because once you have are on strike you know that
verbal negotiations have ended, this time forestall means
of negotiating has entered, deprivation of work, salary or
compensation. Who can last longer? In such a dire
situation he said it is very easy for hot words to give way
to angry words, and angry words give way to violence.
Kung wala na nagtingogay peaceful na diay? Wala na sila
nagkasinabot sunod ana shagitay unya labayay na. And
yet congress has still granted labor__?
CONCLUSION: Even if it is likely to occur, so the law
according to CJ Castro is really not allergic to violence. It
admits the probability of violence to occur as long as it is
not pervasive. The law envisions some violence.
PROCEDURAL REQUISITES
III Manresa 2014-2015
NEGATIVE
a.) There must be no violation of the duty
to bargain on the part of the union
You cannot go to strike right away, you must have
complied with duty to bargain. Remember CB deadlock
that is an interest dispute, bargaining deadlock or ULP
deadlock is a rights dispute.
But either way you must first negotiate in fact built in to
the law is the cooling period which is the last chance to
arrive at a peaceful settlement to the dispute.
You are given 15 days if it is ULP strike and
30 days if it is bargaining deadlock.
Cooling off period, that is when the time the NCMB
comes in and works the whole time, conciliation and
mediation.
What if they hate each other so much that they cannot
meet anymore, thats when the NCMB resorts to what is
called shuttle Mediation.
Management is placed in one big place , labor is
place in another big place, gisultian and
mediator sa isa, ana ang mediator unsa man
imong ikasulti ani, mao ni iyang gisulti unsa man
ang tubag ninyu, unya ang mediator balik na
sad, they shuttle back and forth between parties
in the hope of arriving at peaceful settlement of
the dispute.
You have duty to bargain if you do not show up
the NCMB in the conciliation and mediation
meetings now there is now a violation to bargain
BUT you can always escape, why? Because
you can say that the best evidence to
prove that we refused to negotiate is the
NCMB, you subpoena the NCMB whether
to appear before the Labor Arbiter or with
the secretary of labor.
o If the sec of labor assumes jurisdiction
of the labor dispute you subpoena, is
the NCMB going to appear? The NCMB
is not going to appear! why? Because
Art. 238 prohibit it from testifying from
any court or body regarding any matter
taken up in the conciliation proceedings
conducted by them.
Suppose somebody produces CCTV footage of
your conciliation-mediation proceedings?
Tanawa wala jud ningtungha ang management,
niadto na ang NCMB, nibalik nasad wala gihapon
ang management, gilangaw nako dri. Is that
enough evidence? Muingon kag shuttle
conciliation mana mao ng kay naa sa pikas
building ang isa ka party! Kay nakigtagbo ra sa
union!
SEPTEMBER 25, 2014 (5)
PROCEDURAL REQUIREMENTS
POSITIVE
a. The first requirement is a strike notice.
Where should the strike notice be filed?
Under the primer of the Department of Labor, it
should be filed within NCMB.
But 277 says it should be filed with the Ministry.
Which is correct?
IT SHOULD BE FILED WITH THE MINISTRY
OF THE DEPARTMENT OF LABOR
because when you file it just with the NCMB, the
issue of the sufficiency of the notice of strike
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cannot be open for discussion because it will be
part of the proceedings of conciliation and
mediation. Everything that the NCMB possesses
by way of documentation cannot be presented
in any forum so how can you prove either way
that the notice is insufficient in substance and
form or that it is already compliant with the law.
So necessarily, you have to file it with the
Department of Labor.
But because the primer says that you have to
file it with the NCMB, give a copy to the NCMB.
BUT THE FILING REQUIREMENT UNDER
THE LETTER OF THE LAW IS FULFILLED IF
THE NOTICE OF STRIKE IS FILED WITH
THE DOL.
What should the notice of strike contain? It depends.
If the notice of strike is for a ULP strike
o then it must contain the recitation of
the acts or omission which constitutes
the ULP.
If the strike is grounded on bargaining deadlock
o then it must contain the allegation of
pertinent to collective bargaining.
o To the notice must be attached the
proposals that the union has submitted
to management.
o And then the discussion as to which of
these proposals has already gone
through negotiation sessions.
o What has been agreed upon. What has
been set aside.
o And what of the proposals is the cause
of the deadlock.
That is the requirement for purposes of sufficiency of
strike notice. Where is that found? That is found in the
IRR for strikes.
Now the filing of the notice of strike tolls the period for
cooling off.
ULP strikes, 15 day cooling off period.
Bargaining deadlock strikes, 30 day cooling off
period.
You can see even in the IRR it is still the board.
Board refers to the National Conciliation ana Mediation
Board
Book V, Rule XXII
Section 7. Notice of strike or lockout.
In bargaining deadlocks, a notice of strike or
lockout shall be filed with the regional branch of
the Board at least thirty (30) days before the
intended date thereof, a copy of said notice
having been served on the other party
concerned.
In cases of unfair labor practice, the period of
notice shall be fifteen (15) days.
However, in case of unfair labor practice
involving the dismissal from employment of any
union officer 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 fifteen-day
cooling-off period shall not apply and the
union may take action immediately after
the strike vote is conducted and the
results thereof submitted to the
appropriate regional branch of the Board.
III Manresa 2014-2015
Section 8. Contents of notice. The notice shall
state, among others, the names and addresses of the
employer and the union involved, the nature if the
industry to which the employer belongs, the number of
union members and of the workers in the bargaining unit,
and such other relevant data as may facilitate the
settlement of the dispute, such as a brief statement or
enumeration of all pending labor disputes involving the
same parties.
In cases of bargaining deadlocks, the notice shall, as far
as practicable, further state the unresolved issues in the
bargaining negotiations and be accompanied by the
written proposals of the union, the counter-proposals of
the employer and the proof of a request for conference
to settle the differences.
In cases of unfair labor practices, the notice shall, as far
as practicable, state the acts complained of and the
efforts taken to resolve the dispute amicably.
In case a notice does not conform with the requirements
of this and the foregoing section/s, the regional branch of
the Board shall inform the concerned party of such fact.
Section 9. Action on Notice. Upon receipt of the
notice, the regional branch of the Board shall exert all
efforts at mediation and conciliation to enable the parties
to settle the dispute amicably. The regional branch of the
Board may, upon agreement of the parties, treat a notice
as a preventive mediation case. It shall also encourage
the parties to submit the dispute to voluntary arbitration.
During the proceedings, the parties shall not do any act
which may disrupt or impede the early settlement of the
dispute. They are obliged, as part of their duty to bargain
collectively in good faith and to participate fully and
promptly in the conciliation meetings called by the
regional branch of the Board.
A notice, upon agreement of the parties, may be referred
to alternative modes of dispute resolution, including
voluntary arbitration.
b. Observe the cooling off period. Thats the
second requirement.
THE ONLY EXCEPTION FOR COOLING OFF PERIOD
is ULP strikes which is grounded on union busting and
there is already the dismissal of union leaders.
SC has said, the leader that must be dismissed is one
that is provided for in the Constitution and by-laws of the
union. If his position is not provided for there, then he
cannot be considered a leader whose dismissal can
constitute union busting. That is what is excepted only.
Now what are the obligations during the cooling off
period?
Cooling off period you have to meet promptly
and expeditiously during the sessions that the
mediator calls. Parties must be there.
They must refrain from doing any acts that will
further delay or obstruct or make impossible the
amicable settlement of the dispute.
The ONLY EXCEPTION to that is union busting
dismissal of union leaders.
c. Before you can take the strike vote, you
must send notice to the DoL and the NCMB
that you are about to take a strike vote.
How much time do you have to give? 24 hours.
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DoL has the choice WON: the employer shall thereupon readmit them
o to conduct the vote or upon the signing of the agreement.
o to just observe the voting or
o to just wait and accept the results of Take note, it is no longer the NCMB who does the
the vote. improved offer balloting. It is the DoL.

That you must give the DoL 24 hours. In the IRR, it is the NCMB which conducts the secret
balloting for strike vote which again is questionable they
What is the effect IF YOU DO NOT GIVE THE cannot testify as to WON the requisites of the law for a
NOTICE? strike vote is adequate.
It is as if no strike vote is taken.
TO PASS A STRIKE VOTE IMPROVED OFFER
Muingon ka, why is this the order? You file a notice to BALLOTING
strike first then you take a strike vote. What is the basis What is the majority for a What is the majority required
of the notice of strike? strike vote? for an improved offer
The basis of the notice of strike is the vote of balloting?
the Board of Directors of the union. Majority of all the Majority of the union
members. Absolute members. Simple
d. Third requirement is strike vote. majority. Majority.

Why the do you have to take a strike vote? Why the difference? The difference is accounted for this
Because under the rights and conditions of way.
membership in a labor organization, the union
members have the right to vote by secret ballot TO PASS A STRIKE IMPROVED OFFER
on matters that affect the entire membership VOTE BALLOTING
and a strike **********. As the strike progresses, To receive the improved
normally the strikers offer of the employer on or
That is the basis for the strike vote, the ratification of the already try to find an before the 30th day of the
right to strike. alternative income which strike is just a slim
has been disrupted by the majority.
Section 10. Strike or lockout vote. A decision to strike. Mangita nalang sila Does not even
declare a strike must be approved by A MAJORITY OF ug kaulian. Mag part time have to be a
THE TOTAL UNION MEMBERSHIP IN THE o unsa bana. Mostly the majority of the
BARGAINING UNIT CONCERNED obtained by secret worker who is a member entire
ballot in meetings or referenda called for the purpose. of the union is out there membership.
looking for work. Now, if Because it just
What is the necessary vote to pass a strike vote? that is the case, what says, x x x When
THE MAJORITY OF THE TOTAL UNION happen to the union in the at least a
MEMBERSHIP. picket lines? They will be majority of the
less than the total union members
Why do you have to remember that? membership of the union. vote to accept
Because there is a difference between the So for going on the improved
majority required for the strike vote and the strike, the offer, the
majority that is required for an improved offer majority required striking workers
balloting. is more stringent. shall
[ABSOLUTE immediately
An improved offer balloting is found in Article 279. MAJORITY] return to work
and the
ART. 279 [265]. IMPROVED OFFER BALLOTING. In an employer shall
effort to settle a strike, the Department of Labor and thereupon
Employment shall conduct a REFERENDUM BY SECRET readmit them
BALLOTING on the improved offer of the employer on upon the
or before the 30th day of the strike. signing of the
agreement. X x x
WHEN AT LEAST A MAJORITY OF THE UNION
MEMBERS VOTE TO ACCEPT THE IMPROVED Improved offer is ONLY
OFFER AVAILABLE when it is in
the striking workers shall immediately return to DEADLOCK STRIKE.
work and
the employer shall thereupon readmit them Illustration: Ang gipangayong increase sa union is P300.
upon the signing of the agreement. Ang gihatag sa management P30 ra. Sometime, the
management will improve its offer to P50. That will be
In case of a LOCKOUT, the Department of Labor and the subject of improved offer.
Employment shall also conduct a referendum by secret
balloting on the reduced offer of the union on or before Supposed it does not get the majority, will that preclude
the 30th day of the lockout. management from adjusting their offer?
No. Later on, they can say, well improve it to
WHEN AT LEAST A MAJORITY OF THE BOARD OF P70 or P80. Then another improved offer
DIRECTORS OR TRUSTEES OR THE PARTNERS balloting. It is not prohibited. It is not just taken
HOLDING THE CONTROLLING INTEREST IN THE once. You could have several improved offers.
CASE OF A PARTNERSHIP VOTE TO ACCEPT THE
REDUCED OFFER, TAKE NOTE THAT THE ONE WHO CONDUCTS THE
the workers shall immediately return to work IMPROVED OFFER BALLOTING IS DOLE.
and
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e. After you take the results of the improved
offer, you must bring it to the DoL, the
results. Then you count another 7 days
which is the waiting period. That is the 4 th
requisite, the waiting period of 7 days.
What is that 7-day waiting period? What is the purpose of
the 7-day waiting period? Is that the same as the cooling
off period?
COOLING OFF PERIOD The WAITING PERIOD is
is for conciliation to be observe to give a
mediation. Last effort to chance to any union
arrive at an amicable member who may have
settlement. any complaints at the way
a strike vote was taken.
That is the waiting period.
Is the waiting period over and above the cooling off
period? Sumpay bana? Or can you take it during the
cooling off period?
[IN ADDITION] Once again the PRIMER says, it
is always over and above. It is always in
addition to the cooling off period. That is what
the primer says, the official commentary of the
DoL.
Likewise the IRR, that is also what is said.
Rule XXII, Section 10. x x x In every case,
the union or the employer shall furnish the
regional branch of the Board and the notice of
meetings referred to in the preceding
paragraph at least twenty-four (24) hours
before such meetings as well as the results of
the voting at least seven (7) days before
the intended strike or lockout, subject to
the cooling-off period provided in this
Rule.
It is always in addition to according to DoL.
BUT IN THE DECIDED CASE OF
NFSW (National Federation of Sugar Workers) vs Ovejera
114 SCRA 354
Subsequently reiterated in
Lapanday Workers Union vs. NLRC
1995
The SC has said that the waiting period can be PARTLY
OBSERVED TOGETHER WITH THE COOLING OFF
PERIOD and only the deficit will be added to the cooling
off period.
So if the cooling off period is 15 days, on the
10th day you took the strike vote, after which
you have to observe a 7 day waiting period.
You just extend the cooling off period for
another 2 days because you begin to count the
waiting period together with the cooling off
period.
That is what Ovejera says.
f. The final requisite is you have to comply
with the duty to conciliate and mediate
under the auspices of the NCMB even
while the strike is already in progress.
So now and then the conciliator might call a meeting.
Representatives of the union and management must
attend the conciliation and mediation meeting that the
NCMB might continue to call.
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Illustration: Suppose a union goes on strike. After 5 days
of the strike, the union sends a notice to management
saying we are lifting our picket lines and we are now
going back to work. No conditions, no extra demands.
Can management still say padaun mo?
NO! That would be unfair labor practice.
Management is obliged to accept back all the
striking workers. Remember the strike does not
sever ER-EE relationship.
After you have taken a strike vote and the waiting period
is consumed, humana ang 7 days, human nasab ang
cooling off period, are you obliged to go on strike? Or
you can postpone it? Lets say for 1 year. To keep
management in suspense. Dili usa ta mustrike. Naa
naman kay strike vote. Naka comply naman ka sa tanan
requisites. Wa gihapon ka mustrike. Can you do that? Is
that allowed? How long can you postpone going to strike
after complying with the strike vote and waiting period?
That is answered by 277 (g).
(g) When, in his opinion, there exists a labor dispute
causing or likely to cause a strike or lockout in an
industry indispensable to the national interest, the
Secretary of Labor and Employment may assume
jurisdiction over the dispute
and decide it or certify the same to the Commission for
compulsory arbitration.
Such assumption or certification shall have the effect of
automatically enjoining the intended or impending strike
or lockout as specified in the assumption or certification
order.
If one has already taken place at the time of assumption
or certification, all striking or locked out employees shall
immediately return to work and the employer shall
immediately resume operations and readmit all workers
under the same terms and conditions prevailing before
the strike or lockout.
The Secretary of Labor and Employment or the
Commission may seek the assistance of law enforcement
agencies to ensure compliance with this provision as well
as with such orders as he may issue to enforce the same.
In line with the national concern for and the highest
respect accorded to the right of patients to life and
health, strikes and lockouts in hospitals, clinics, and
similar medical institutions shall, to every extent possible,
be avoided, and all serious efforts, not only by labor and
management but government
as well, be exhausted to substantially minimize, if not
prevent, their adverse effects on such life and health,
through the exercise, however legitimate, by labor of its
right to strike and by management to lockout. In labor
disputes adversely affecting the continued operation of
such hospitals, clinics or medical institutions, it shall be
the duty of the striking union or locking-out employer to
provide and maintain an effective skeletal workforce of
medical and other health personnel, whose movement
and services shall be unhampered and
unrestricted, as are necessary to insure the proper and
adequate protection of the life and health of its patients,
most especially emergency cases, for the duration of the
strike or lockout.
In such cases, therefore, the Secretary of Labor and
Employment is mandated to immediately assume, within
twenty-four (24) hours from knowledge of the occurrence
of such a strike or lockout, jurisdiction over the same or
certify it to the Commission for compulsory arbitration.
For this purpose, the contending parties are strictly
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enjoined to comply with such orders, prohibitions and/or
injunctions as are issued by the Secretary of Labor and
Employment or the Commission, under pain of immediate
disciplinary action, including dismissal or loss of
employment status or payment by the locking-out
employer of backwages, damages and other affirmative
relief, even criminal prosecution against either or both of
them.
The foregoing notwithstanding, the President of the
Philippines shall not be precluded from determining the
industries that, in his opinion, are indispensable to the
national interest, and from intervening at any time and
assuming jurisdiction over any such labor dispute in order
to setde or terminate
the same.
It says that a strike notice is valid for the duration of the
dispute on substantially the same grounds. For as long as
the cause of conflicts still takes, your strike vote is valid.
There is this particular case of
Philippine Airlines vs. Secretary,
L-8810,
January 23, 1991
The SC says, because the NCMB downgraded the notice
of strike into another column which is preventive
mediation, therefore, the ground for strike of the union is
not strikeable. There is no ground for strike.
This is where I say the unions counsel forgot that
whatever is there in the NCMB is confidential. The SC
should not be able to recognize it in evidence. The NCMB
cannot testify in any court or proceedings.
How did this get to the SC? Somebody must have
presented this in evidence. Counsel of the union was
sleeping during the proceedings. So therefore, it was
used.
There is this case
PCI Bank vs. PNB Employees Association
105 SCRA 315, 1981
During the strike of PNB Employees, they were carrying
placards, they were saying wala nay kwarta ang PNB.
They cannot give us increase.
One of the sign says, PCI Banks bad debts that
transferred to PNB-NDC. The party who was offended
was PCI Bank, a third party. PCI Bank files a libel suit
against the union for carrying those placards. They were
saying, we have no bad debts that was absorbed by PNB.
Will that libel suit prosper?
The SC says no, it will not prosper. The signs in
the placards, people will always state it with a
grave insult. Whatever is written there are not
nice words. SC says it is a privileged
communication [dili kanang inadmissible in
evidence, pero communication protected by
Consti]
If you are maligned in posters during strike, ang
tao na magtanaw ana magkatao. Muingon sila
pirting sukua sa nagdala sa poster, dli sila
mutuo sa giingon sa poster. That is called the
pingpong effect. What is the pingpong effect?
Kita ka ug duha ka tao na maglalis ug
magsiningitay sila, unsa man imong tendency?
Dli man ka mudapig sa isa. Kung wala nimo sila
ilhi, mura kag gatanaw ug pingpong. If you do
III Manresa 2014-2015
not know the individuals concern and there is a
heated argument, it becomes an object of
curiosity. It is not an issue that catches you and
you side with somebody else.
The issue about compensation during a strike. Are the
strikers entitled to strike duration pay?
2 kinds of people who are not at work during a
strike:
1. Strikers and
2. those who are not striking but are
employees of the employers struck
against, they cannot go to work because they
cannot bring ********. Sige sila ug report kada
adlaw pero dli sila kasulod. Do they merit strike
pay for all the times that they are present during
the strike?
The SC says for the strikers and for the innocent third
party employees who cannot go to work because of the
strike
THERE IS NO PAY. That is the rule. Why?
Strike is not an evil thing. When somebody
complies with his obligation and exercises his
rights, and work cannot be done, so pay cannot
be release for the work, the SC says, the law will
leave the parties where they are.
The employer will absorb his own loss because
of the strike. The strikers will absorb his loss, no
pay. Each will bear his own loss.
Because you are not concerned about something that is
irregular or against the law.
SEPTEMBER 25, 2014 (8)
Lets take up the prohibited acts during strike that is 278.
What are these prohibited acts during strike?
Art. 278. Prohibited activities.
No labor organization or employer shall declare a
strike or lockout without first having bargained
collectively in accordance with Title VII of this
Book
[This is STRIKING WITHOUT FIRST BARGANING] or
without first having filed the notice required in the
preceding Article
[This is STRIKING WITHOUT FILING A NOTICE OF
STRIKE] or
without the necessary strike or lockout vote first
having been obtained and reported to the Ministry
[This is STRIKING WITHOUT CONDUCTING A STRIKE
VOTE].
No strike or lockout shall be declared after
assumption of jurisdiction by the
President or the Minister or
certification or submission of the dispute
to compulsory or voluntary arbitration or
during the pendency of cases involving the
same grounds for the strike or lockout.
[This is STRIKING AFTER AN ASSUMPTION OF
JURIDSDICTION OR CERTIFICATION OF DISPUTE BY
SECRETARY]. Assumption of juridsdiction and certification
of dispute is found in Article 277g.
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Striking after a dispute is submitted to compulsory or
voluntary arbitration, you can no longer strike once the
issue to the labor dispute has been submitted to the
Voluntary Arbiter or is now a subject to a suit with the
Labor Arbiter that is compulsory arbitration because you
are forum shopping. You are submiting your issues to a
particular forum for resolution but at the same time you
are trying to influence its outcome by going to strike. You
are form shopping
Any worker whose employment has been
terminated as a consequence of any unlawful
lockout shall be entitled to reinstatement with full
backwages.
Any union officer who knowingly participates in an
illegal strike and any worker or union officer who
knowingly participates in the commission of illegal
acts during a strike may be declared to have lost
his employment status: Provided, That mere
participation of a worker in a lawful strike shall
not constitute sufficient ground for termination of
his employment, even if a replacement had been
hired by the employer during such lawful strike.
No person shall obstruct, impede, or interfere
with, by force, violence, coercion, threats or
intimidation, any peaceful picketing by employees
during any labor controversy or in the exercise of
the right to self-organization or collective
bargaining, or shall aid or abet such obstruction or
interference.
This is obstructing or impeding picket lines.
While people are picketing, this you have to remember, a
picket is legal if it is a MOVING PICKET. You cannot
just picket by just standing. Why?
You are in violation of the CITY ORDINANCE.
This side walk is not a property of the employer.
That is why the employer cannot eject you from
the sidewalk. But the whole city must have
access to the sidewalk because the sidewalk is
res nulius. It is owned by no one and yet it must
be available for everyone. Agianan man na.
So, in order to have a legitimate use of that, you
must use it as a passage way. You must be like
the rest of the city not just walking through. Agi-
agi ka ka dinha. Maglakaw-lakaw jud ka. You
must be in moving picket.
Illustration: So, if you are moving, katong nagalakaw sa
side walk, lakaw2 pud na sila. But ikaw nagpicket man
ka, balik2 man ka. In the US, every year will picket
paghuman ana pauli na na sila. Ngano man? Wala may
makakuha anang ilang lugar. Kay tugnaw man kaayo.
Dire sa Pilipinas, byae na, pagbalik nimo ang nag-okupar
ana mga security guards na sa employer so dili na ka
maka-picket mao ng ilaha ng guardihan dira. Magbutang
na na sila ug mga baril. Murag nahimong kampo nila.
That is violation of striking.
No employer shall use or employ any strike-
breaker, nor shall any person be employed as a
strike-breaker.
You must distinguish strike breaker and a scab. Ang
tawag ana dinhi eskerol.
Scab is one who takes the palce of a striking
worker who works inside the working place of
the employer. There is no prohibition
against being a scab
III Manresa 2014-2015
but there is a prohibition against being a strike
breaker. You cannot bust a picketline.
Now in order for you to be a scab and work
inside the employers premises, you have to
break picketlines unless you fly going inside. So,
almost always, a scab is a strike breaker. One
that has broken picketlines in order to take the
place of striking workers.
And the rule which the SC has not yet changed its
ambivalent is the one ruled by the court under RA875
The Industrial Peace Act.
If it is an ECONOMIC STRIKE because the
demand constitutes a non-legal obligation on
the part of the employer to grant and the union
strikes, the employer can procure
replacements from the striking workers.
o What is the status? The status is
temporary no matter how long the
strike lasts even if it is one year. YOU
DO NOT GAIN REGULAR STATUS.
o Why? Because strike does not severe
ee-er relationship.
So the moment the strike ends, balik tong mga
regular workers and the scabs are terminated.
That is the rule under RA 875 the Industrial
Peace Act.
Now what is the rule when it is ULP STRIKE? If
the employer has committed ULP, he has no
right to continue in his business. He does
not have the same right as in economic
strike to replace the workers that went on
strike.
Now, if you allow yourself But if you allow yourself to
to be used as a strike be used as a scab without
breaker or you yourself breaking picket lines, you
break the picket lines, you are without fault.
are committing a prohibited
act.
Insular Life vs. Insular Life case.
Nihigda sila sa picket lines.
The case here, BPI Davao Chapter
Gisirhan sa mga strikers ang bangko pero nakasulod man
na ilahang mga officers and the other non-union
members. They are inside. Di sila mahutdan ug
refrigerator supplies sa BPI. So, dili sila magutom sa
sulod.
Karon, ang katong naa sa sulod as working time,
overtime after the strike ended 3 months. Nagpadugang
man sila ug kwarto sa ilahang balay tungod sa ilahang
extra compensation na ilahang nadawat.
Now, kadtong mga strikers na naa sa gawas, its amazing
what a 1-peso coin can do. Kini bang 1-peso coin
[nagpakita si Father ug piso coin], sandig sila sa glass
unya magturno2 na sila dukduk piso. Saba kaayo na sa
sulod. Di jud ka katulog sa sigeg dukdok. Piso ra na.
Now, unsa man na? When it comes to prohibited acts
especially this one found in obstruction impeding,
interfering with, by force, violence, coercion,
threats or intimidation, any peaceful picketing by
employees during any labor controversy or in the
exercise of the right to self-organization or
picketing shall commit any act of violence
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this refers to the picketers ha, coercion or
intimidation or obstruct the free ingress to or
egress from the employers premises for lawful
purposes, or obstruct public thoroughfares.
Now, if you file a case for ILLEGAL STRIKE, where do
you file it?
File it with the labor arbiter. Article 224[5].
Art. 224. Jurisdiction of the Labor Arbiters and the
Commission.
Except as otherwise provided under this Code, 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
the parties for decision without extension, even in
the absence of stenographic notes, the following
cases involving all workers, whether agricultural
or non-agricultural:
5. Cases arising from any violation of Article 278
of this Code, including questions involving the
legality of strikes and lockouts;
You file it with the labor arbiter.
But when you want to GET RESTRAINING ORDER
against prohibited activities
you have to go to NLRC because it is the NLRC
that has the power to issue injunction not the
labor arbiter under 225 [e].
Art. 225. Powers of the Commission. The
Commission shall have the power and authority:
xxx [e] To enjoin or restrain any actual or
threatened commission of any or 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 cause
grave or irreparable damage to any party or
render ineffectual any decision in favor of such
party: Provided, That no temporary or permanent
injunction in any case involving or growing out of
a labor dispute as defined in this Code shall be
issued except after hearing the testimony of
witnesses, with opportunity for cross-
examination, in support of the allegations of a
complaint made under oath, and testimony in
opposition thereto, if offered, and only after a
finding of fact by the Commission
If there is an ILLEGAL PROHIBITED PRACTICE
occurring:
the remedy is you enjoin it. You go to the NLRC.
You go to the NLRC. If the labor dispute is hre
in Davao, you go to Cagayan de Oro ask for
restraining order.
o Normally, kwaan na nimo ug litrato
kanang ilahang mga barricades dira
and
o then file ka ug ex parte motion
restraining order.
o Andam ka na ug bond. Magpost ka ug
bond.
o Unsa may mga tubag anang mga
unions? Tawagon dayon na nila ang
mga media. Media man ang magdala
ug coverage. Pag-abot sa media, wa
na, wa nay barricade. Sila na gatuyok-
tuyok nagsige ug singgit-singgit.
Lakaw2 na sila. Unya mao dayon na
ang ilahang answer sa urgent motion
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for restraining order. Ang ilahang tubag
niana, subpoena duces tecum against
these media people to produce the
film.
o Kana, dili na sa union na film, ABS-CBN
mismo nagcover ana, tan-awa naa bay
barriccade dira. Wa man di ba? Unsaon
nimo na pagrefute? You better find out.
di na nato patas-on ang storya kay ako
na ang ma-abogado ninyo kung ing-
ana. Mao ng gyera dira.
Remember you cannot get restraining order
from labor arbiter, but from the NLRC.
Principle: Do not make a mistake of time to get
an injunction for a strike. Very difficult to get
injunction for a strike. You get injunction
against prohibited activities.
You must cite the provision why it is prohibited.
You must produce evidence of the prohibited
acts. Produce ka ug medical certificate. Because
kung naa na ng prohibited acts and you are not
challenging the srtike, you first file an injunction
with an urgent prayer for restraining order.
Injunction for what? The purpose against
prohibited activity is to obtain an order to cease
and desist prohibited activity. For the mean time
you are asking for the restraining order which
should be granted by the NLRC ex parte if you
can produce the evidence.
Options:
Now, so, for this prohibited activities against
these prohibited activities, you can also FILE
ULP COMPLAINT under Article 223 letter L or
file a complaint for violation of 278 prohibted
practices in relation to 223 [a] or
you can file a criminal case under Article 286 or
you can file a case for injunction suit to restrain
or enjoin the prohibited acts whether actual or
threatened under Article 223 [e] with the NLRC
under Rule 589 Sec. 10 of the Rules of Court.
May a strike be enjoined?
GENERAL RULE: INJUNCTION PROHIBITED.
Article 265 No temporary or permanent injunction or
restraining order in any case involving or growing out of
labor disputes shall be issued by any court or other
entity, except as otherwise provided in Articles 225 and
278 of this Code.
So, the general rule is there is no injunction against a
strike.
This is reiterated by the SC in
Bisig ng mga Manggawa vs. NLRC
226 SCRA 499
The constitutional recognition of the right to strike does
serve as a reminder that injunction should be reduced to
the barest minimum.
And then the SC says, the prohibition against injunctions
in labor disputes creates its substantive and not purely
procedural wrongs.
FIVE EXCEPTIONS: WHEN INJUNCTION ALLOWED
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Bulletin Publishing vs. Sanchez
144 SCRA 678
This is the Manila Bulletin Case. this is still before the
amendment of the Labor Code introduced by Herrera-
Veloso Law, RA1617. You know before all managerial
officers including supervisors cannot form a union. Then,
the Herrera-Veloso Law introduced an amendment that
supervisors can now form a union. Just like RA 875
allowed supervisors.
So, during this time even supervisors are not allowed to
form a union. The supervisors of Manila Bulletin formed a
union. They strike. Manila Bulletin filed an injunction go
straight to the SC asking for injunction to stop from
striking and forming a union. According to Manila Bulletin,
this is a clear violation of a law and they have a clear
right. So they were asking for injunction from the highest
court because it is a question of law. The SC entertained
the petition for injunction. If you read the case, the
basis of SC is justice and equity. It issued the
injunction and stopped the supervisors. After that Manila
Bulletin did not publish most of the landmark cases of the
Supreme Court.
3rd parties who stand to suffer grave and
irreparable injury: THE INNOCENT BYSTANDER
RULE
Who is an innocent bystander? Sa bisaya standby. It is
defined in
MSF Tire vs. CA
311 SCRA 784[1999]
This is what happened here, there was this Filipino tire
retapping plant. The workers there went on strike
because of the deadlock of collective bargaining. 2
months into the strike, they were suddenly served with
notice to leave picket lines or else you will be held in
contempt. Why? Because in the meantime what the tire
retapping plant had done: It sold its land to MSF Siam
Tyre Company. 60% owned by the Filipino retapping
plant and 40% owned by Siam Tyre which is a subsidiary
of Siam Cement of Thailand. It is an equivalent of San
Miguel. Biggest conglomorate of companies. And then the
retapping plant sold the assets to MSF Tire. MSF Tire is
owned 60% by Siam Cement and 40% by the Retapping
plant. Change of ownership.
Now, after the change of ownership, they went to the
regular courts and they obtained an injunction to stop the
strike because they say we are not the employer
anymore. We are third party. Regular courts issued
injunction. CA reversed. Is the injunction correct that was
issued by the lower court?
SC said, MSF Rubber is not an innocent
bystander. It has history connected with labor
dispute. It is not innocent. It is privy to the
labor dispute.
What is an innocent third party that can obtain the
retsraining order against the strikers? When can you be
an innocent party? The answer is in...
Coscowela vs. NLRC or
Liwayway Publications vs. CIR
Liwayway publication used to be a sister company of
Manila Bulletin. The original owner of Manila Bulletin used
to be Mr. Hans Menzi. He was a Filipino-American citizen.
He has so many landholdings, properties. Davao Oriental,
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he has a plantation there which was taken over by the
Cooperative of workers.
MB Liwayway
COMMON ENTRANCE
But this is where Manila Bulletin was. This is where
Liwayway building, inside the same compound. The
employees here went to strike and they picketed. The
common entrance. So, Liwayway trucks could not go
here. What is Liwayway publishing? Komiks. Its
distribution thoughout the Philippines had stopped
because of the picketers.
You cannot go to NLRC and ask for an injunction
because there is no ee-er relaitonship between
Liwayway and the picketers.
Where do you go to a restraining order? You go
to the regular courts. There you have to plead
that you are an innocent bystander and you
stand to sustain grave and irreperable injury
because of strike. Since you are innocent, you
are asking the court that the strikers stop the
strike as to you because you are suffering grave
and irreparable injury. Now, we are just located
here.
The controlling shareholder here is Menzi. The controlling
here is Menzi. PAREHO RA NA! KANG MENZI NA
TANAN! said by the strikers.
The SC said no! separate and distinct personality
and there is no reason to pierce the veil of
corporate entity. Therefore the court issued a
restraining order. Ari mo pag-picket sa
atubangan.
Illustration: Suppose you are one of those in the Gaisano
Mall selling fish balls. You are renting 10k per month for
the space. Gaisano Mall opens 9:30 in the morning basta
Saturday and Sunday. Now you are there bringing
already your fish balls. Pag-abot nimo, nagstrike,
nagpicket sila. Dili na ka kasulod. Kasayang sa income
nako. Pambayad sa renta! Mamaligya nako ug fishball!
Huh! Naka-attend baya ko ug labor ni father, magfile ko
ug injunction regular court! I am an innocent bystander!
Mamaligya ra ko ug fishball! These guys have balls to
stop me! magpetition ka ron comes now the fishball
vendor unto this honorable court asking for injunction do
you think the court will listen to you and pity to you small
entrepreneur? Nabuhi sa fishball?
NO YOU ARE NOT AN INNOCENT
BYSTANDER. Why? Because the employer and
you have a privity of contract. You are
committed.
An innocent bystander is like this [refer to the illustration]
who is juxtapose specially.
Unsa man ang iyang sala? Nga ang iyang
building tupad lang sa gikalagutan na agalon.
Nagtupad man dira. Ikaw man ang na-igo which
suffered the injury. Mao na. that is why you can
ask for injunction because you are innocent
bystander.
Once there is privity, you are not an innocent bystander.
That is the second instance of injunction of a strike.
Article 277g When, in his opinion, there exists a
labor dispute causing or likely to cause a strike or
lockout in an industry indispensable to the
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national interest, the Secretary of Labor and
Employment may assume jurisdiction over the
dispute and decide it or certify the same to the
Commission for compulsory arbitration. Such
assumption or certification shall have the effect of
automatically enjoining the intended or impending
strike or lockout as specified in the assumption or
certification order.xxx
Article 277 [g] also says that xxx in hospitals, clinics
and similar medical institutions the Secretary of
Labor and Employment may immediately assume,
within twenty four (24) hours from knowledge of
the occurrence of such a strike or lockoutxxx.
General banking law of 2000 sec. 22
Section 22. Strikes and Lockouts. - The banking
industry is hereby declared as indispensable to the
national interest and, notwithstanding the
provisions of any law to the contrary, any strike or
lockout involving banks, if unsettled after seven
(7) calendar days shall be reported by the Bangko
Sentral to the secretary of Labor who may assume
jurisdiction over the dispute or decide it or certify
the same to the National Labor Relations
Commission for compulsory arbitration. However,
the President of the Philippines may at any time
intervene and assume jurisdiction over such labor
dispute in order to settle or terminate the same .
So those are the 5 instances where a strike maybe
enjoined. So, next time we will discuss 277g favorite
source of bar examination questions.
OCTOBER 1, 2014
g. When, in his opinion, there exists a labor dispute
causing or likely to cause a strike or lockout in
an industry indispensable to the national
interest, the Secretary of Labor and Employment
may assume jurisdiction over the dispute and
decide it or certify the same to the Commission
for compulsory arbitration.
Now, at the end of letter G:
The foregoing notwithstanding, the President of
the Philippines shall not be precluded from
determining the industries that, in his opinion,
are indispensable to the national interest, and
from intervening at any time and assuming
jurisdiction over any such labor dispute in order
to settle or terminate the same.
This power is really a power of the president of the
Republic and because the SOLE is an alter ego of the
president, he is empowered to exercise this power. As far
as I remember, there is only 1 president who ever
exercised this power. There was a version of this is RA
875. There was only 1 president who got to use this.
Joseph Estrada. He assumed jurisdiction over the labor
dispute of Philippine Airlines. *stories*
Now, this has a long history and the wording has
changed. The word now says a labor dispute arising in
an industry indispensable to the national interest".
The original wording under General Order(?) No.
5 during Martial Law accompanied LOI 368
issued by Pres. Marcos 26, January 1976, the
phraseology was "a labor dispute arising from
an industry vital to the national interest."
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Subsequently the legislative body under
president marcos, BP, enacted a similar version
of this, but the phraseology is a labor dispute
arising from an industry affecting the national
interest
Finally, 6715 leaving the phraseology which until
now has endured a labor dispute arising in an
industry indispensable to the national interest.
What is the significance of all those changes?
NOTHING. The interpretation is still the same.
That the court is clothed to question to question
the discretion of the president or the SOLE when
he assimes jurisdiction over a labor dispute.
Why?
Justice Fernando says it behooves upon this
Court to assume a becoming modesty when it
comes to reviewing the exercise of a power
which the statute or the constitution grants the
president and only him to exercise.
That is a constitutional principle - co-equal
branches of government, not 1 is superior from
the other. And it is by maintaining own province
of exercise, its own constitutionally delegated
authority and power that the republic will
continue to endure if each of these 3 branches
of govt acts according to the grant and at the
same time the limitation to the constitution.
Illustrations:
So if you will be asked, is coca cola indispensible to the
national interest?
Mahugno diay ni atong ekonomiya kung walay
coca cola? And yet time and again, if there is
labor dispute with coke, SOLE assumed
jurisdiction over the same.
When there was a strike in 1986 in Ateneo de Davao, the
SOLE assumed jurisdiction, on the basis of then 263, now
277 g. Is ADDU indispensible to the national interest?
You can imagine a world without ADDU. The
world will still continue to exist without addu.
Even Davao city, it will not go down crashing
thru Davao Gulf just because there is no more
AdDU. This may be destructive of your self-
importance [LOL]. Your school and consequently
you are not that important that you are
indispensible to the life of Davao City. AND YET,
Whereas, ADDU is one of the biggest universities in
Southern Mindanao with a population at that time of 12k
students; whereas the youth of the land is the
cornerstone of the ***
The SC will not question WON AdDU is
indispensible to the national interest.
What will make sc question is grave abuse of
discretion (GAD), not simple error.
Example of GAD:
PHIMCO INDUSTRIES, INC., petitioner, vs. HONORABLE
ACTING SECRETARY OF LABOR JOSE BRILLANTES and
PHIMCO INDUSTRIES LABOR ASSOCIATION, respondents.
304 S 747
THIRD DIVISION
PURISIMA, J.
Phimco industries is one of the 3 match maker companies
in the Philippines. Maker of safety matches in the
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Philippines. It distributes matches in Luzon. It Visayas, its
in Cebu. In Mindanao, the maker of matches is in Butuan.
Now Phimco is located Punta Sta. Ana(?). When then
Sec. Brillantes SOLE assumed jurisdiction over the labor
dispute, he wrote in the whereas clauses, whereas there
is an acting community that will stand to be divided
because most of the workers of the Phimco industries;
whereas this corporation though not indispensable to the
national interest is nonetheless a supplier of an essential
product (safety matches) So the SOLE admitted explicitly
that it is not indispensable to the national interest, this
industry. So where do you leave the SC?
The SC has no choice but to censure to the
SOLE. This is the one and only case where the
SC corrects the SOLE.
The pivotal issue here is: whether or not the public
respondent acted with grave abuse of discretion
amounting to lack or excess of jurisdiction in assuming
jurisdiction over subject labor dispute. Yes.
Article 263, paragraph (g) of the Labor Code,
provides:
(g) When, in his opinion, there exist a labor dispute
causing or likely to cause a strike or lockout in an
industry indispensable to the national interest, the
Secretary of Labor and Employment may assume
jurisdiction over the dispute and decide it or certify the
same to the Commission for compulsory arbitration x x
x.
The Labor Code vests in the Secretary of Labor the
discretion to determine what industries are indispensable
to the national interest. Accordingly, upon the
determination by the Secretary of Labor that such
industry is indispensable to the national interest, he will
assume jurisdiction over the labor dispute in the said
industry.[8] This power, however, is not without any
limitation. In upholding the constitutionality of B.P. 130
insofar as it amends Article 264 (g)[9] of the Labor Code,
it stressed in the case of Free telephone Workers Union
vs. Honorable Minister of Labor and Employment, et
al.,[10] the limitation set by the legislature on the power of
the Secretary of Labor to assume jurisdiction over a labor
dispute, thus:
Batas Pambansa Blg. 130 cannot be any
clearer, the coverage being limited to strikes
or lockouts adversely affecting the national
interest.[11]
In this case at bar, however, the very admission by
the public respondent draws the labor dispute in question
out of the ambit of the Secretarys prerogative, to wit:
While the case at bar appears on its face not to fall
within the strict categorization of cases imbued with
national interest, this office believes that the obtaining
circumstances warrant the exercise of the powers under
Article 263 (g) of the Labor Code, as amended.[12]
The private respondent did not even make any
effort to touch on the indispensability of the match
factory to the national interest. It must have been
aware that a match factory, though of value, can
scarcely be considered as an industry
indispensable to the national interest as it
cannot be in the same category as generation and
distribution of energy, or those undertaken by
banks, hospitals, and export-oriented
industries.[13]
Yet, the public respondent assumed jurisdiction
thereover, ratiocinating as follows:
For one, the prolonged work disruption has
adversely affected not only the protagonists, i.e., the
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workers and the Company, but also those directly and
indirectly dependent upon the unhampered and
continued operations of the Company for their means of
livelihood and existence. In addition, the entire
community where the plant is situated has also been
placed in jeopardy. If the dispute at the Company
remains unabated, possible loss of employment, not to
mention consequent social problems, might result
thereby compounding the unemployment problem of the
country.
Thus we cannot be unmindful of the possible dire
consequences that might ensue if the present dispute is
allowed to remain unresolved, particularly when an
alternative dispute resolution mechanism obtains to
dispose of the differences between the parties herein.[14]
It is thus evident from the foregoing that the
Secretarys assumption of jurisdiction grounded on the
alleged obtaining circumstances and not on a
determination that the industry involved in the
labor dispute is one indispensable to the national
interest, the standard set by the legislature, constitutes
grave abuse of discretion amounting to lack of or excess
of jurisdiction.
To uphold the action of the public respondent under the
premises would be stretching too far the power of the
Secretary of Labor as every case of a strike or lockout
where there are inconveniences in the community, or
work disruptions in an industry though not indispensable
to the national interest, would then come within the
Secretarys power. It would be practically allowing the
Secretary of Labor to intervene in any Labor dispute at
his pleasure. This is precisely why the law sets and
defines the standard: even in the exercise of his power of
compulsory arbitration under Article 263 (g) of the Labor
Code, the Secretary must follow the law. For when an
overzealous official by-passes the law on the pretext of
retaining a laudable objective, the intendment or purpose
of the law will lose its meaning as the law itself is
disregarded[15]
In light of the foregoing, we hold that the public
respondent gravely abused his discretion in
assuming jurisdiction over the labor dispute sued
upon in the case.
Now even if this is the case, it is my submission that if
the SC lets say assumes jurisdiction over a labor dispute
of bian laguna rural bank, naa silay 3 branches. Unya
nagstrike mga EE. If the SOLE assumes jurisdiction over
the labor dispute, the SC is precluded from law for
declaring it as a GAD. Why?
because 277 g included in the industries as
indispensable to the national interest - is what is
written in the general banking law - that the
SOL can assume jurisdiction over labor disputes
in any bank. There is no distinction, it does not
say commercial. ANY BANK.
Also hospitals, no matter how small, as long as
it has a license, under 277 g, it is considered as
indispensible to national interest, which is why a
strike is not allowed, and the SOLE is enjoined
from assuming jurisdiction over the hospital.
There is another case where the SC obliquely says that
the SOLE should not have assumed jurisdiction over the
case, but eventually allowed. THAT IS NOT RATIO
DECIDENDI.
GTE DIRECTORIES CORPORATION, petitioner, vs. HON.
AUGUSTO S. SANCHEZ and GTE DIRECTORIES
CORPORATION EMPLOYEES UNION, respondents.
197 S 452; May 27, 1991
FIRST DIVISION
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NARVASA, J: things:
1. Adopt in
Minister Sanchez decided the dispute in the exercise of toto the entire
the jurisdiction assumed by his predecessor in findings of fact
accordance with Article 263 (g) of the Labor Code, and
providing in part as follows: recommendati
"(g) When in his opinion there exists a labor dispute ons
causing or likely to cause strikes or lockouts adversely
affecting the national interest, such as may occur in but 2. Partially
not limited to public utilities, companies engaged in the adopt and
generation or distribution of energy, banks, hospitals, and partially
export-oriented industries, including those within export modify
processing zones, the Minister of Labor and Employment
shall assume jurisdiction over the dispute and decide it or 3. Completely
certify the same to the Commission for compulsory disregard, ask
arbitration . . ." another
hearing and
Held: The assumption of jurisdiction is open to question. investigation,
but he cannot
The production and publication of telephone say disregard
directories, which is the principal activity of GTE, everything
can scarcely be described as an industry affecting and make
the national interest. GTE is a publishing firm chiefly judgment.
dependent on the marketing and sale of advertising About what?
space for its not inconsiderable revenues. Its services, That is a
while of value, cannot be deemed to be in the same violation of
category of such essential activities as "the generation or admin. due
distribution of energy" or those undertaken by "banks, process based
hospitals, and export-oriented industries." It cannot be on the case of
regarded as playing as vital a role in communication as Ang Tibay.
other mass media. The small number of employees Who will be hearing
involved in the dispute, the employer's payment of "P10 officer?
million in income tax alone to the Philippine government," NLRC will not
and the fact that the "top officers of the union were leave everything
dismissed during the conciliation process," obviously do to come to place If you got
not suffice to make the dispute in the case at bar one of dispute. He will to NLRC;
"adversely affecting the national interest." SOLE designate the if still
CERTIFIES most senior Labor parties
This is the mechanics: *writes on board* THE DISPUTE Arbiter (LA) here, are still
TO THE the chief dissatisfie
When SOLE assumes NLRC. (executive) LA, or d, they
jurisdiction, it doesnt most senior to go to
mean he has to leave the hearing court of
office and come to place officer, he will appeals,
of dispute since receive evidence, and the
jurisdiction is the power to position paper, SC
hear the case. So biyaan etc., findings of
niya tanan para mubaba fact,
and muadto diri. That is recommendations
not true. , and
He or she delegates the The nlrc will
277 G SAYS power to the regional If you got come up with the
THERE CAN director of labor - he to SOLE; decision. That is
BE assumes jurisdiction, RD if still the story.
ASSUMPTION becomes the hearing dissatisfie
ORDER officer. d, go to Now in the past, I used to believe that certification of a
(SOLE CAN What are the requisites for court of labor dispute is the original jurisdiction of the NLRC. You
ASSUME Administrative Due appeals, will notice in 224:
JURISDICTIO Process? Ang Tibay v. CIR. and the
N) Now, it was the CIR who sc ART. 224 [217]. JURISDICTION OF LABOR ARBITERS AND
was the hearing forum for THE COMMISSION. (a) Except as otherwise provided under
the SOLE. this Code, the Labor Arbiters shall have original and
The RD will hear the exclusive jurisdiction to hear and decide within thirty (30)
parties. calendar days after the submission of the case by the parties
Labor Union will for decision without extension, even in the absence of
submit position stenographic notes, the following cases involving all workers,
paper, also ER. whether agricultural or non-agricultural:
Makes finding of 1. Unfair labor practice cases;
facts, 2. Termination disputes;
recommendations 3. If accompanied with a claim for reinstatement, those
, then gives to cases
SOLE. that workers may file involving wages, rates of pay, hours
Then SOLE can of work and other terms and conditions of employment;
do one of either 3 4. Claims for actual, moral, exemplary and other forms of
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damages arising from the employer-employee relations;
5. Cases arising from any violation of Article 264 [now
278]
of this Code, including questions involving the legality of
trikes and lockouts;
6. Except claims for Employees Compensation, Social
Security, Medicare and maternity benefits, all other claims,
arising from employer-employee relations, including those
of persons in domestic or household service, involving an
amount exceeding five thousand pesos (P5,000.00)
regardless of whether accompanied with a claim for
reinstatement.
(b) The Commission shall have exclusive appellate
jurisdiction over all cases decided by Labor Arbiters.
there is no original jurisdiction of the NLRC. So the
NLRC clearly has no original jurisdiction.
But in a 2013 case
When the NLRC hears an assumption of jurisdiction
certified, he is doing so as an ADJUNCT BODY OF THE
SOLE.
So the NLRC's jurisdiction is derivative from the
order of the SOLE certifying the dispute.
o What does that mean? THE NLRC
HAS NO JURISDICTION TO
MODIFY THE CERTIFICATION
ORDER.
In the certification order it is written in the order
is:
o all strikes must be enjoined, whether in
progress or complete (?)
o all workers must return to the
workplace and the Er must accept the
worker.
At one time, the NLRC said, the workers, those who are
afraid to work, they will just be return to the payroll.
They do not need to come to actual workplace.
The SC the NLRC does not have jurisdiction to
do that.
The hearing officers do not have jurisdiction.
Theres is the passive duty of hearing the case
for the benefit of the SOLE.
CONCLUSION: So this is NOT ORIGINAL
JURISDICTION, IT IS A DERIVATIVE
JURISDICTION. The whole idea is labor dispute is so
impt, we have to rush its decision and this is the way
rush it.
What are the effects of assumption of jurisdiction
or certification order?
2011 Revised Rules of Procedure of the NLRC. SECTION
3. EFFECTS OF CERTIFICATION. - a) Upon
certification, the intended or impending strike or lockout
is automatically enjoined
NOTWITHSTANDING the filing of any motion for
reconsideration of the certification order nor the non-
resolution of any such motion which may have been duly
submitted to the Office of the Secretary of Labor and
Employment.
If a work stoppage has already taken place at the time of
the certification:
all striking or locked out employees shall
immediately return to work and
the employer shall immediately resume
operations and readmit all workers under the
same terms and conditions prevailing before the
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strike or lockout.
b) All cases between the same parties, except where the
certification order specifies otherwise the issues
submitted for arbitration which are already filed or may
be filed, and are relevant to or are proper incidents of the
certified case, shall be considered subsumed or absorbed
by the certified case, and shall be decided by the
appropriate Division of the Commission.
Subject to the second paragraph of Section 4 of Rule IV,
the parties to a certified case, under pain of contempt,
shall inform their counsels and the Division concerned of
all cases pending with the Regional Arbitration Branches
and the Voluntary Arbitrators relative or incident to the
certified case before it.
c) Whenever a certified labor dispute involves a business
entity with several workplaces located in different
regions, the Division having territorial jurisdiction over
the principal office of the company shall acquire
jurisdiction to decide such labor dispute; unless the
certification order provides otherwise.
1) All strikes are enjoined; whether in progress or
complete (?)
a. If it is [in progress?] - you cannot stop
it
b. If it has started, you must stop it
2) You must return to work and the ER must
accept all returning workers.
a. We will see later on there are very
queer cases about this acceptance of
returning workers.
b. Note if not come back to work
3) All cases between the same parties, except
where the certification order specifies otherwise
the issues submitted for arbitration which are
already filed or may be filed, and are relevant to
or are proper incidents of the certified case,
shall be considered subsumed or absorbed
by the certified case, and shall be decided by
the appropriate Division of the Commission.
Illustration: Suppose you are the union and you file a MR
asking the SOLE to reconsider the assumption of
jurisdiction order. Because our only strength is to stop
work, that is the only way to make the ER feel the effect.
Undang trabaho, undang negosyo, undang ang kita. So
we are asking you, if you assume jurisdiction, you are
ruling in favor of the ER. So if the union files an urgent
motion, can you not wait until SOLE resolves that motion
before you actually stop work until you continue your
strike?
The SC says NO YOU CANNOT POSTPONE,
IMMEDIATELY YOU MUST STOP. You cannot
postpone it for 1 day, the SC says, enjoining the
strike is not contemplated to be done in favor of
the ER.
In whose is it granted?
IT IS THE GRANTED IN FAVOR OF THE
PEOPLE OF THE PHILIPPINES. Because the
labor dispute is arising from an industry
indispensable to the national interest. For the
sake of national interest, that work stoppage
must be stopped. It must be brought back to
normal because the economy will suffer. That is
what the SC said in
ST. SCHOLASTICA'S COLLEGE, petitioner, vs. HON.
RUBEN TORRES, in his capacity as SECRETARY OF
LABOR AND EMPLOYMENT, and SAMAHAN NG
MANGGAGAWANG PANG-EDUKASYON SA STA.
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ESKOLASTIKA-NAFTEU, respondents.
210 S 565
FIRST DIVISION
BELLOSILLO, J
Held: Article 263 (g) of the Labor Code provides that if a
strike has already taken place at the time of assumption,
"all striking . . . employees shall immediately return to
work."
This means that by its very terms, a return-to-work order
is immediately effective and executory notwithstanding
the filing of a motion for reconsideration (University of
Sto. Tomas v. NLRC, G.R. No. 89920, 18 October 1990;
190 SCRA 759). It must be strictly complied with even
during the pendency of any petition questioning its
validity (Union of Filipro Employees v. Nestle' Philippines,
Inc., 192 SCRA 396).
After all, the assumption and/or certification order is
issued in the exercise of respondent SECRETARY's
compulsive power of arbitration and, until set aside, must
therefore be immediately complied with.
The rationale for this rule is explained in University of
Sto. Tomas v. NLRC, supra, citing Philippine Air Lines
Employees Association v. Philippine Air Lines, Inc., 38
SCRA 372 (1971) thus "To say that its (return-to-work
order) effectivity must wait affirmance in a motion for
reconsideration is not only to emasculate it but indeed to
defeat its import, for by then the deadline fixed for the
return to work would, in the ordinary course, have
already passed and hence can no longer be affirmed
insofar as the time element is concerned."
the NLRC while sitting in a compulsory arbitration
certified to it by the Secretary of labor and employment is
not taking the role of a judicial board but as an
administrative body charged with the duty to implement
the order of the Secretary. [kani nag gicite ni father,
wala sa case na iyahang gihatag]
Effects of the assumption of jurisdiction and
certification: [review siguro ni na part, apil ang
first 3 mentioned ni Fr. Before this enumeration]
1. Enjoined
2. Back to work
a. What is the consequence if you do not
go back to work? You are out of work.
You will be dismissed
b. If you are an ER, you do not take back
everybody, you commit ULP.
3. Consolidation of all cases.
a. If the Labor Union has filed a case with
the LA against management and it is
still pending with the LA, the LA will be
sent notice that there is a ____ and the
LAs duty is to suspend proceedings,
gather all the papers of the case and
____ them to the SOLE because there
is a certification of the case.
b. The only exception is if the case is
already with the Court of Appeals,
because if it is at the CA it is circuitous
to bring it back down to the SOLE
because the decision of the SOLE is
appealable to the CA. Kung naa na sa
CA, padayon na na sa SC.
4. Parties must continue to mediate and conciliate
under the auspices of the NATIONAL
CONCILIATION AND MEDIATION BOARD,
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even as they argue to file position papers or
motions with the SOLE or the NLRC
5. Parties must refrain from committing such acts
that will aggravate the dispute (negative
requirement) Maintain the status quo.
Those are the 5 effects of the assumption of jurisdiction
order or the certification order under 277 (g).
Wala ni specifically gidiscuss na part sa provision ni
Father
Such assumption or certification shall have the effect of
automatically enjoining the intended or impending strike
or lockout as specified in the assumption or certification
order. If one has already taken place at the time of
assumption or certification, all striking or locked out
employees shall immediately return to work and the
employer shall immediately resume operations and
readmit all workers under the same terms and conditions
prevailing before the strike or lockout. The Secretary of
Labor and Employment or the Commission may seek the
assistance of law enforcement agencies to ensure
compliance with this provision as well as with such orders
as he may issue to enforce the same.
In line with the national concern for and the highest
respect accorded to the right of patients to life and
health, strikes and lockouts in hospitals, clinics, and
similar medical institutions shall, to every extent possible,
be avoided, and all serious efforts, not only by labor and
management but government as well, be exhausted to
substantially minimize, if not prevent, their adverse
effects on such life and health, through the exercise,
however legitimate, by labor of its right to strike and by
management to lockout. In labor disputes adversely
affecting the continued operation of such hospitals, clinics
or medical institutions, it shall be the duty of the striking
union or locking out employer to provide and maintain an
effective skeletal workforce of medical and other health
personnel , whose movement and services shall be
unhampered and unrestricted, as are necessary to insure
the proper and adequate protection of the life and health
of its patients, most especially emergency cases, for the
duration of the strike or lockout. In such ca ses,
therefore, the Secretary of Labor and Employment is
mandated to immediately assume, within twentyfour (24)
hours from knowledge of the occurrence of such a strike
or lockout, jurisdiction over the same or certify it to the
Commission for compulsory arbitration. For this purpose,
the contending parties are strictly enjoined to comply
with such orders, prohibitions and/or injunctions as are
issued by the Secretary of Labor and Employment or the
Commission, under pain of immediate disciplinary action,
including dismissal or loss of employment status or
payment by the locking out employer of backwages,
damages and other affirmative relief, even criminal
prosecution against either or both of them.
OCTOBER 2, 2014 (5)
Let us go back to our discussion of 277 (g). The SC has
said in
Capitol Medical Center Incorporated vs. Trajano
2005, 462 SCRA 457
The discretion to assume jurisdiction may be exercised by
the Secretary of Labor and Employment without the
necessity of prior notice or hearing given to any of the
parties. The rationale of this primary assumption of
jurisdiction can justify ****** on his own consideration
of the exigency of the situation in relation to the national
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 Lectures on Labor Relations
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interest. WON he assumes jurisdiction is not based
on the arguments of the parties. It is based on
national interest. That is the overarching
consideration.
What is covered by the assumption of jurisdiction?
What is the scope of the Secretarys authority to decide
matters between the parties of the dispute?
According to the SC in
St. Scholastica College vs. Torres
1992
The grant of such power necessarily includes and extends
to all questions and controversies that may have
arisen from the labor dispute over which he
assume jurisdiction
including those cases falling under the original
and exclusive jurisdiction of the Labor Arbiter.
All embracing
Thats why one of the consequences of assumption
of jurisdiction is a consolidation of all the cases
between the parties whether it is a separate earlier
controversies. They are subsumed in the Secretary.
The Secretary therefore is granted by the law the wide
latitude to resolve the over-all relationship between
management and the exclusive bargaining agent of the
labor organization with whom it is in controversy.
GR: There is this issue of return to work. Because one
of the consequences if you will remember is the return to
work of all striking workers.
As far as I know, there is only one EXCEPTION. That is
the case of
NFL vs. NLRC, L-65150
November 11, 1985
That is the only time where the SC says, the return to
work by the striking workers is EXCUSED.
Why did the SC excused this case? What are the facts of
this case? NFL was the union of the wire tappers of BF
Goodrich in Basilan when it was still free of the Abu
Sayyaf. During the collective bargaining negotiations, the
ER was insisting that there should be a quota for each
tapper. BF Goodrich wanted a quota of 250 trees every
working day. The union says we can never comply with
that. Management says why cant our tappers comply?
There is no reason why you cannot comply. The union
said no we cannot. Why? The management says look,
how many minutes are there in 1 working day? 8 hours x
60 you arrive at 480 minutes. You divide that by 250, you
have about 2 minutes per tree.
The Kidapawan tappers can do it, why cant you. Union
says the Kidapawan tappers can do it because the trees
there are still young, they are not mature trees. The trees
in Basilan are already mature trees. They are on a rolling
contoured farm. If you are dealing with a rubber tree that
is already mature, the bottom part is so hard, it is beyond
tapping. What you do? You climb the tree. That is why
the tappers in Basilan carry ladders. Dili nmu makuha in 2
minutes.
They have a deadlock. They went on strike. The
Secretary assumed jurisdiction over the labor dispute.
After they assumed jurisdiction, they were ordered return
to work. Pag return to work, you will still have to make
the 250 rubber tree quota. The workers said I might as
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well not report because I cannot make the quota and so I
will be fired. So nobody reported or returned to work.
3 months later, wan a jud sila mureturn to work, nag cge
nakuha ang BF Goodrich ug substitute, papahawaon na
sila sa ilang *****house where they were *****. The
sheriff accompanied by the military, they were driven out.
That is when the union filed an urgent motion to enjoin
the employer from ejecting the workers and their
families. That is when the issue of return to work arose.
YOU DID NOT RETURN TO WORK, why do
you continue and stay in the ****house. It is for
workers. You did not return to work and so you
have to be ejected. The SC says there is valid
reason for not to return to work.
All other reasons have been rejected by the SC.
There is no excuse even if the LO files a MR,
that is still not a reason not to return to work.
Together with the return to work obligation of the
workers, there is a corollary obligation on the part of the
ER to accept everyone to work.
It is plain and simple to conclude that a worker who is
dismissed from work and his dismissal is the very
controversy that gave rise to this right, that he will be
allowed to go back to work and the ER must accept him.
But there is the case of
PLDT vs. Manggagawa ng Komunikasyon
This has to do with telephone operators. There were 200
of them. Since they were already useless because of the
cellphone, these 200 operators were terminated for
redundancy. The union opposed. The Secretary of Labor
assumed jurisdiction over the labor dispute after the
Manggagawa already staged their strike. In the
assumption of jurisdiction, the Secretary ordered return
to work, except those that were terminated due to
redundancy. Why the Secretary did that?
Because the 30-day period notice for
redundancy termination lapsed earlier than
the 30-day cooling off period necessary after the
filing of the notice of strike. 2 weeks before, the
notice already lapsed.
When you are to be terminated for an
authorized cause, you file a notice, serve it with
the EE who is to be terminated and the DoL.
After 30 days, you must be paid. And they were
already paid. And they already signed
quitclaims. Technically speaking they were not
EE anymore.
But the union says, the situation before the controversy is
that they were EEs. Are they included in those who the
company must accept as to return to work?
SC says the return to work must cover ALL THE
STRIKING WORKERS. That includes all the
telephone workers, the telephone operators,
even those who have received their termination
benefits and have signed the quitclaim. Take
note of that ruling.
UIC vs. Secretary,
448 SCRA 190, January 14, 2005.
Once again the union of the faculty filed a notice of
strike. What is that? Because of the controversy. The
whole controversy is whether the head teachers, heads of
the departments, etc, they are included in the bargaining
unit. That was the question.
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What happened was after the NCMB had so many Return to work.
sessions of conciliation and mediation, they have
succeeded in convincing the union and the administration Suppose the assumption of jurisdiction does not
to bring out this particular issue as to whether or not order a return to work.
these particular positions, head teachers, department The SC says that is not a reason not to return to
heads, are included in the bargaining unit of the rank and work. Why? Because what is operative is 277 (g)
file. Bring it out and have it resolved by a voluntary and 277 it is says it is automatic the moment
arbitrator. the Secretary assumes or certifies the dispute.
SO AYAW NA TANAWA ANG ORDER,
The voluntary arbitrator was chosen and asked for PANGITAA ANG LABOR CODE.
position papers very fast and the VA arrived at a decision.
The decision of the VA is these department heads, Even if the strike is illegal, it becomes a prohibited
teachers, etc., are not included in the bargaining unit. activity.
The union did not appeal the decision. They filed instead
a notice of strike. So the decision of the VA became final ILLEGAL STRIKE PROHIBITED STRIKE
and executory. After it had been final and executory, the An illegal strike is one that a strike that constitutes a
union went on strike. does not comply with any prohibited activity in
or all of the requisites of a contravention with an
The sisters went to Manila and succeeded in getting valid lawful strike as assumption of jurisdiction
assumption of jurisdiction order. The assumption of provided for in the Labor order
jurisdiction order issued by the Secretary did not specify Code.
who are the EEs that are to go back. It just said, all A prohibited strike may be
striking workers are ordered to return to work. UIC said illegal strike, it may begin
we are not going to accept those that are out because as an illegal strike, but it is
they are not included even in the bargaining unit. They continued despite an
are not included in the union. That the union filed a ULP. assumption of jurisdiction
Again, that ULP complaint was subsumed by the order or an order of the
Secretary. Secretary certifying the
dispute in the NLRC. The
Can the Secretary of Labor upon assumption of moment you continue the
jurisdiction of a labor dispute, order the ER to reinstate strike, any and all those
EEs terminated by the ER even if those terminated EEs who continue to participate
are not part of bargaining unit and their termination is will lose their employment
covered by a decision of the VA which decision has status.
become final and executory. That is the issue. An illegal strike, if you did
The SC says YES THEY ARE STILL COVERED not comply with the Here, every one who
by virtue of the overarching interest of the State substantial or procedural participates in a strike loses
to restore the status quo ante bellum. What requirements, kinsa may his employment status.
the law seeks to restore is the situation before pakasad.on, just the
the controversy. leaders who consented to If prohibited strike, every
If the composition of the BU is the issue that led or indorsed the illegal one who participates in
to the strike, in other words it is the issue that strike. All the others, the that illegal strike loses his
cause the labor dispute, then the situation that ordinary members do not employment status
must be restored is BEFORE THAT WHEN lose his employment status
THESE PEOPLE WERE STILL WITHIN THE
ER. OCTOBER 2, 2014 (8)
Not even a decision that has become final and
executory will prevent them from being covered Now how do you use that outline? What you do is you go
by the return to work order. through the labor code, and start from the right column I
purposely did not change the numbering so that you will
Pay attention to those cases because common sense will look for the new numbering then you number then put
say no they are not included. How could they be the paragraph here, thats how you know the law and the
included? But the SC has said again and again, they are sequence.
included.
You know you think taxation, is very hard, all those
There is a particular decision commentaries, what they are doing they are only quoting
the NIRC because you are not familiar of it, but if you
Philippine Airlines vs. Secretary Drilon outline it matuhog2 lang na nimo, because if you do not
193 SCRA 223, 1991 outline it you will have a massive quake attacking you.

The SC ruled that the Secretary EXCEEDED HIS AMBIT Now you have many forums under the labor justice you
OF HIS JURISDICTION by including the workers as not have
within the power of the ER to dismissed. In other words, 1. NLRC start from the labor arbiter
the issue of dismissal is beyond the issue that the 2. BLR that is the med arbiter
Secretary had power to do despite the consolidation of 3. Voluntary arbitrator
cases. 4. regional director of labor

That is now considered to be a mistake on the part of the
SC. Now and then you will see commentators who will
still invoke that case. But clearly that is a mistake.
Summary:
Pending cases are suspended and consolidated.
A strike or lockout is enjoined.
So many and they have different paths and they have
different jurisdiction, if you do not outline it, it is very
difficult to understand, you are given this outline so you
can follow it.
OCTOBER 8, 2014

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 Lectures on Labor Relations
From the Lectures and Hand-Outs of Father Agustin L. Nazareno
If youve noticed the outline, there are 6 columns. Lets us
begin from the right-most.
GRIEVANCE MACHINERY
ART. 272 [260]. GRIEVANCE MACHINERY AND
VOLUNTARY ARBITRATION. The parties to a Collective
Bargaining Agreement shall include therein provisions
that will ensure the mutual observance of its terms and
conditions. They shall establish a machinery for the
adjustment and resolution of grievances arising from the
interpretation or implementation of their Collective
Bargaining Agreement and those arising from the
interpretation or enforcement of company personnel
policies.
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 Agreement.
For this purpose, parties to a Collective Bargaining
Agreement shall name and designate in advance a
Voluntary Arbitrator or panel of Voluntary Arbitrators, or
include in the agreement a procedure for the selection of
such Voluntary Arbitrator or panel of Voluntary
Arbitrators, preferably from the listing of qualified
Voluntary Arbitrators duly accredited by the Board. In
case the parties fail to select a Voluntary Arbitrator or
panel of Voluntary Arbitrators, the Board shall designate
the Voluntary Arbitrator or panel of Voluntary Arbitrators,
as may be necessary, pursuant to the selection procedure
agreed upon in the Collective Bargaining Agreement,
which shall act with the same force and effect as if the
Arbitrator or panel of arbitrators has been selected by
the parties as described above.
Remember this column is only applicable if it is an
organized establishment with a CBA, because a CBA
crystallizes the grievance machinery. It might be
organized but there is no CBA yet, so this column does
not apply.
Now, there are 2 kinds, classes of disputes that are to go
through the grievance machinery. What are those?
1. Disputes concerning the
interpretation/implementation of CBA
2. Disputes concerning the
interpretation/implementation of company
personnel policies
So, CBA and company personnel policy.
Then it says, all others defined as grievance by the CBA.
Let us say that it has something to do with the
union security clause. Now, that is not exactly a
benefit, but the union security clause might be
called into question the moment there is a
controversy let us say, the worst of it, the union
would require management to terminate an EE,
to ask to be expelled from the union, when the
USC requires as a condition for the continuity of
employment continued membership in the
union. When that happens, what is the
obligation of management?
o You know from the Casio case, the SC
says not only is management supposed
to see to it that the EEs are accorded
the necessary hearing according to the
bylaws of the union as written , an
opportunity to air his case, not only
that, but management must see to it
that there is substantial evidence that
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supports the conclusion of the union to
expel the EE.
o If management does not do that, then
mgt is a party to the illegal termination
or dismissal of the EE.
Remember not all grievances, all disputes that
go thru grievance, necessarily end with
voluntarily arbitration. If it ends up with
dismissal, its a disciplinary case and it ends up
with dismissal, normally the union will not elect
voluntary arbitration. Why?
o Because VA requires payment
o Whereas, under Art. 224
ART. 224 [217]. JURISDICTION OF
LABOR ARBITERS AND THE
COMMISSION. (a) Except as
otherwise provided under this Code,
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 the
parties for decision without extension,
even in the absence of stenographic
notes, the following cases involving all
workers, whether agricultural or non-
agricultural:
2. Termination disputes;
Terminations are under the original and
exclusive jurisdiction of the labor
arbiter. So once termination has
occurred, they will file a claim, not for
purposes of VA, but they will file for
illegal dismissal with the Labor Arbiter.
Another mandatory jurisdiction are wage distortions
under Art. 124.
Art. 124 X X X
Where the application of any prescribed wage increase by
virtue of a law or Wage Order issued by any Regional
Board results in distortions of the wage structure within
an establishment, the employer and the union shall
negotiate to correct the distortions. Any dispute arising
from the wage distortions shall be resolved through the
grievance procedure under their collective bargaining
agreement and, if it remains unresolved, through
voluntary arbitration. Unless otherwise agreed by the
parties in writing, such dispute shall be decided by the
voluntary arbitrators within ten (10) calendar days from
the time said dispute was referred to voluntary
arbitration.
Wage distortion cases here, where there is a CBA.
All these cases that are processed thru the grievance
machinery when the outcome leaves much to be desired
by either party intended to go(?) thru voluntary
arbitration usually it is the union or the EE involved which
complains. Leaves it up to the voluntary arbitrator. The
decision of the voluntary arbitrator is now to be appealed
(Luzon Development Bank v. Association of Luzon
Development Bank EEs 1996 En Banc) now goes to the
Court of Appeals instead of the SC.
EN BANC
G.R. No. 120319 October 6, 1995
LUZON DEVELOPMENT BANK, petitioner, vs.
ASSOCIATION OF LUZON DEVELOPMENT BANK
EMPLOYEES and ATTY. ESTER S. GARCIA in her capacity
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 Lectures on Labor Relations
From the Lectures and Hand-Outs of Father Agustin L. Nazareno
as VOLUNTARY ARBITRATOR, respondents.
ROMERO, J.:
In labor law context, arbitration is the reference of a
labor dispute to an impartial third person for
determination on the basis of evidence and arguments
presented by such parties who have bound themselves to
accept the decision of the arbitrator as final and binding.
Arbitration may be classified, on the basis of the
obligation on which it is based, as either compulsory or
voluntary.
Compulsory arbitration is a system whereby the parties to
a dispute are compelled by the government to forego
their right to strike and are compelled to accept the
resolution of their dispute through arbitration by a third
party. 1 The essence of arbitration remains since a
resolution of a dispute is arrived at by resort to a
disinterested third party whose decision is final and
binding on the parties, but in compulsory arbitration,
such a third party is normally appointed by the
government.
Under voluntary arbitration, on the other hand, referral of
a dispute by the parties is made, pursuant to a voluntary
arbitration clause in their collective agreement, to an
impartial third person for a final and binding resolution. 2
Ideally, arbitration awards are supposed to be complied
with by both parties without delay, such that once an
award has been rendered by an arbitrator, nothing is left
to be done by both parties but to comply with the same.
After all, they are presumed to have freely chosen
arbitration as the mode of settlement for that particular
dispute. Pursuant thereto, they have chosen a mutually
acceptable arbitrator who shall hear and decide their
case. Above all, they have mutually agreed to de bound
by said arbitrator's decision.
In the Philippine context, the parties to a Collective
Bargaining Agreement (CBA) are required to include
therein provisions for a machinery for the resolution of
grievances arising from the interpretation or
implementation of the CBA or company personnel
policies. 3 For this purpose, parties to a CBA shall name
and designate therein a voluntary arbitrator or a panel of
arbitrators, or include a procedure for their selection,
preferably from those accredited by the National
Conciliation and Mediation Board (NCMB). Article 261 of
the Labor Code accordingly provides for exclusive original
jurisdiction of such voluntary arbitrator or panel of
arbitrators over (1) the interpretation or implementation
of the CBA and (2) the interpretation or enforcement of
company personnel policies. Article 262 authorizes them,
but only upon agreement of the parties, to exercise
jurisdiction over other labor disputes.
On the other hand, a labor arbiter under Article 217 of
the Labor Code has jurisdiction over the following
enumerated cases:
. . . (a) Except as otherwise provided
under this Code 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 the parties for decision
without extension, even in the absence
of stenographic notes, the following
cases involving all workers, whether
agricultural or non-agricultural:
1. Unfair labor practice cases;
2. Termination disputes;
3. If accompanied with a claim for
reinstatement, those cases that
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workers may file involving wages, rates
of pay, hours of work and other terms
and conditions of employment;
4. Claims for actual, moral, exemplary
and other forms of damages arising
from the employer-employee relations;
5. Cases arising from any violation of
Article 264 of this Code, including
questions involving the legality of
strikes and lockouts;
6. Except claims for Employees
Compensation, Social Security,
Medicare and maternity benefits, all
other claims, arising from employer-
employee relations, including those of
persons in domestic or household
service, involving an amount exceeding
five thousand pesos (P5,000.00)
regardless of whether accompanied
with a claim for reinstatement.
xxx xxx xxx
It will thus be noted that the jurisdiction conferred by law
on a voluntary arbitrator or a panel of such arbitrators is
quite limited compared to the original jurisdiction of the
labor arbiter and the appellate jurisdiction of the National
Labor Relations Commission (NLRC) for that matter. 4 The
state of our present law relating to voluntary arbitration
provides that "(t)he award or decision of the Voluntary
Arbitrator . . . shall be final and executory after ten (10)
calendar days from receipt of the copy of the award or
decision by the parties," 5 while the "(d)ecision, awards,
or orders of the Labor Arbiter are final and executory
unless appealed to the Commission by any or both
parties within ten (10) calendar days from receipt of such
decisions, awards, or orders." 6 Hence, while there is an
express mode of appeal from the decision of a labor
arbiter, Republic Act No. 6715 is silent with respect to an
appeal from the decision of a voluntary arbitrator.
Yet, past practice shows that a decision or award of a
voluntary arbitrator is, more often than not, elevated to
the Supreme Court itself on a petition for certiorari, 7 in
effect equating the voluntary arbitrator with the NLRC or
the Court of Appeals. In the view of the Court, this is
illogical and imposes an unnecessary burden upon it.
In Volkschel Labor Union, et al. v. NLRC, et al., 8 on the
settled premise that the judgments of courts and awards
of quasi-judicial agencies must become final at some
definite time, this Court ruled that the awards of
voluntary arbitrators determine the rights of parties;
hence, their decisions have the same legal effect as
judgments of a court. In Oceanic Bic Division (FFW), et
al. v. Romero, et al., 9 this Court ruled that "a voluntary
arbitrator by the nature of her functions acts in a quasi-
judicial capacity." Under these rulings, it follows that the
voluntary arbitrator, whether acting solely or in a panel,
enjoys in law the status of a quasi-judicial agency but
independent of, and apart from, the NLRC since his
decisions are not appealable to the latter. 10
Section 9 of B.P. Blg. 129, as amended by Republic Act
No. 7902, provides that the Court of Appeals shall
exercise:
xxx xxx xxx
(B) Exclusive appellate jurisdiction over
all final judgments, decisions,
resolutions, orders or awards of
Regional Trial Courts and quasi-judicial
agencies, instrumentalities, boards or
commissions, including the Securities
and Exchange Commission, the
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From the Lectures and Hand-Outs of Father Agustin L. Nazareno
Employees Compensation Commission
and the Civil Service Commission,
except those falling within the appellate
jurisdiction of the Supreme Court in
accordance with the Constitution, the
Labor Code of the Philippines under
Presidential Decree No. 442, as
amended, the provisions of this Act,
and of subparagraph (1) of the third
paragraph and subparagraph (4) of the
fourth paragraph of Section 17 of the
Judiciary Act of 1948.
xxx xxx xxx
Assuming arguendo that the voluntary arbitrator or the
panel of voluntary arbitrators may not strictly be
considered as a quasi-judicial agency, board or
commission, still both he and the panel are
comprehended within the concept of a "quasi-judicial
instrumentality." It may even be stated that it was to
meet the very situation presented by the quasi-judicial
functions of the voluntary arbitrators here, as well as the
subsequent arbitrator/arbitral tribunal operating under
the Construction Industry Arbitration Commission, 11 that
the broader term "instrumentalities" was purposely
included in the above-quoted provision.
An "instrumentality" is anything used as a means or
agency. 12 Thus, the terms governmental "agency" or
"instrumentality" are synonymous in the sense that either
of them is a means by which a government acts, or by
which a certain government act or function is performed.
13 The word "instrumentality," with respect to a state,
contemplates an authority to which the state delegates
governmental power for the performance of a state
function. 14 An individual person, like an administrator or
executor, is a judicial instrumentality in the settling of an
estate, 15 in the same manner that a sub-agent appointed
by a bankruptcy court is an instrumentality of the court,
16 and a trustee in bankruptcy of a defunct corporation is
an instrumentality of the state. 17
The voluntary arbitrator no less performs a state function
pursuant to a governmental power delegated to him
under the provisions therefor in the Labor Code and he
falls, therefore, within the contemplation of the term
"instrumentality" in the aforequoted Sec. 9 of B.P. 129.
The fact that his functions and powers are provided for in
the Labor Code does not place him within the exceptions
to said Sec. 9 since he is a quasi-judicial instrumentality
as contemplated therein. It will be noted that, although
the Employees Compensation Commission is also
provided for in the Labor Code, Circular No. 1-91, which
is the forerunner of the present Revised Administrative
Circular No. 1-95, laid down the procedure for the
appealability of its decisions to the Court of Appeals
under the foregoing rationalization, and this was later
adopted by Republic Act No. 7902 in amending Sec. 9 of
B.P. 129.
A fortiori, the decision or award of the voluntary
arbitrator or panel of arbitrators should likewise be
appealable to the Court of Appeals, in line with the
procedure outlined in Revised Administrative Circular No.
1-95, just like those of the quasi-judicial agencies, boards
and commissions enumerated therein.
This would be in furtherance of, and consistent with, the
original purpose of Circular No. 1-91 to provide a uniform
procedure for the appellate review of adjudications of all
quasi-judicial entities 18 not expressly excepted from the
coverage of Sec. 9 of B.P. 129 by either the Constitution
or another statute. Nor will it run counter to the
legislative intendment that decisions of the NLRC be
reviewable directly by the Supreme Court since, precisely,
the cases within the adjudicative competence of the
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voluntary arbitrator are excluded from the jurisdiction of
the NLRC or the labor arbiter.
In the same vein, it is worth mentioning that under
Section 22 of Republic Act No. 876, also known as the
Arbitration Law, arbitration is deemed a special
proceeding of which the court specified in the contract or
submission, or if none be specified, the Regional Trial
Court for the province or city in which one of the parties
resides or is doing business, or in which the arbitration is
held, shall have jurisdiction. A party to the controversy
may, at any time within one (1) month after an award is
made, apply to the court having jurisdiction for an order
confirming the award and the court must grant such
order unless the award is vacated, modified or corrected.
19
In effect, this equates the award or decision of the
voluntary arbitrator with that of the regional trial court.
Consequently, in a petition for certiorari from that award
or decision, the Court of Appeals must be deemed to
have concurrent jurisdiction with the Supreme Court. As a
matter of policy, this Court shall henceforth remand to
the Court of Appeals petitions of this nature for proper
disposition.
And by virtue of the decision of the SC (Samahan ng mga
Manggagawa sa Hyatt v. Voluntary Arbitrator Capunan,
3/25/2009), SC says the decision of the voluntary
arbitrator is now appealable to the Court of Appeals
under Rule 43. It is no longer by certiorari, as ruled in the
Luzon Development Bank case, it is now petition for
review on certiorari, Rule 43.
Rule 43. Section 1. Scope. This Rule shall apply
to appeals from judgments or final orders of the Court of
Tax Appeals and from awards, judgments, final orders or
resolutions of or authorized by any quasi-judicial agency
in the exercise of its quasi-judicial functions. Among
these agencies are the and voluntary arbitrators
authorized by law.
SECOND DIVISION
SAMAHAN NG MGA MANGGAGAWA SA HYATT
NUWHRAIN-APL v. VOLUNTARY ARBITRATOR FROILAN
M. BACUNGAN and HYATT REGENCY
G.R. No. 149050
March 25, 2009
Tinga, J.:
Petitioner union argues that the proper remedy to assail a
decision of a voluntary arbitrator is a special civil action
for certiorari under Rule 65 of the Rules of Court and not
an appeal via a petition for review under Rule 43.
Petitioner unions theory is based on the following
ratiocinations: first, the decision of the voluntary
arbitrator is similar to the decisions rendered by the
National Labor Relations Commission (NLRC) and the
Secretary of Labor and Employment, which become final
and executory after ten (10) calendar days from receipt
of notice, in that the Labor Code expressly disallows an
appeal from their judgment or final order; second,
Section 2 of Rule 43, which exempts judgments or final
orders issued under the Labor Code from an appeal via
Rule 43, should apply with equal force to decisions of
labor voluntary arbitrators.
The petition lacks merit.
The question on the proper recourse to assail a decision
of a voluntary arbitrator has already been settled in
Luzon Development Bank v. Association of Luzon
Development Bank Employees,[12] where the Court held
that the decision or award of the voluntary arbitrator or
panel of arbitrators should likewise be appealable to the
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Court of Appeals, in line with the procedure outlines in
Revised Administrative Circular No. 1-95 (now embodied
in Rule 43 of the 1997 Rules of Civil Procedure), just like
those of the quasi-judicial agencies, boards and
commissions enumerated therein, and consistent with the
original purpose to provide a uniform procedure for the
appellate review of adjudications of all quasi-judicial
entities.[13]
Subsequently, in Alcantara, Jr. v. Court of
Appeals,[14] and Nippon Paint Employees Union v. Court
of Appeals,[15] the Court reiterated the aforequoted
ruling. In Alcantara, the Court held that notwithstanding
Section 2 of Rule 43, the ruling in Luzon Development
Bank still stands. The Court explained, thus:
The provisions may be new to the Rules of Court
but it is far from being a new law. Section 2, Rules 42 of
the 1997 Rules of Civil Procedure, as presently worded, is
nothing more but a reiteration of the exception to the
exclusive appellate jurisdiction of the Court of Appeals, as
provided for in Section 9, Batas Pambansa Blg. 129, as
amended by Republic Act No. 7902:
(3) Exclusive appellate jurisdiction over all final
judgments, decisions, resolutions, orders or awards of
Regional Trial Courts and quasi-judicial agencies,
instrumentalities, boards or commissions, including the
Securities and Exchange Commission, the Employees
Compensation Commission and the Civil Service
Commission, except those falling within the appellate
jurisdiction of the Supreme Court in accordance with the
Constitution, the Labor Code of the Philippines under
Presidential Decree No. 442, as amended, the provisions
of this Act and of subparagraph (1) of the third
paragraph and subparagraph (4) of the fourth paragraph
of Section 17 of the Judiciary Act of 1948.
The Court took into account this exception in Luzon
Development Bank but, nevertheless, held that the
decisions of voluntary arbitrators issued pursuant to the
Labor Code do not come within its ambit x x x[16]
On some occasions, rules of procedure may be relaxed
and on that basis the Court of Appeals could have treated
the petition for certiorari as a petition for review under
Rule 43. However, as correctly pointed out by the Court
of Appeals, the petition was filed beyond the
reglementary period for filing a petition for review under
Rule 43. It is elementary in remedial law that the use of
an erroneous mode of appeal is a cause for dismissal of
the petition for certiorari and it has been repeatedly
stressed that a petition for certiorari is not a substitute
for a lost appeal.[17]
In any event, the voluntary arbitrator did not commit
any reversible error in ruling that Dacles and Valencia
were employees of CSC, an independent contractor,
whose services may be terminated upon the expiration of
the contract for cleaning services between CSC and
respondent Hyatt. There is no dispute that Dacles and
Valencia performed services at respondent Hyatt
pursuant to the said contract. The Court affirms the
ruling of the voluntary arbitrator that Dacles and Valencia
cannot be considered as employees of respondent Hyatt
in the absence of evidence to prove that CSC had been
engaged in labor-only contracting.
The Court also affirms the voluntary arbitrators findings
that Dalmacio and Dazo were project employees, whose
employment may be terminated only upon the closure of
the flower shop. Said findings are in accord with the
conditions of the employment contracts between
respondent Hyatt and the two employees.
III Manresa 2014-2015
Well-settled is the rule that findings of fact of
administrative agencies and quasi-judicial bodies which
have acquired expertise because their jurisdiction is
confined to specific matters, are generally accorded not
only great respect but even finality. They are binding
upon this Court unless there is a showing of grave abuse
of discretion or where it is clearly shown that they were
arrived at arbitrarily or in utter disregard of the evidence
on record.
Remember, the aggrieved has 15 days to file an appeal,
but the decision of the voluntary arbitrator becomes final
and executory 10 days from receipt of a copy thereof.
That is why if you want to appeal, you must serve notice
to the voluntary arbitrator, so that he will not issue an
order of entry of judgment of his award.
So there is this discrepancy which has never been really
reconciled by the Court or the Congress:
10 days it becomes final and executory
Yet you have 15 days to appeal
So you have to serve notice with the voluntary arbitrator
so that he will not issue an order of entry of judgment.
Is there a grievance if the union does not support or
bring up the case of an EE?
Yes, there is. Explicit in the labor code, Any
single EE or group of EEs may bring a
grievance
Soni*** v. NLRC is in error. There the SC says
there is no grievance because the union did not
file the grievance. It was only the ER. There is a
grievance. Any EE or group of EEs may file a
grievance if it is a case with managerial action
and managerial resolution of the complaint is
not agreeable for the purposes, so they can file
a grievance.
Alright lets move the 2nd column from the right
Med Arbiter (Petition for Certification Election (CE)) and if
its outside of metro manila, you normally file these
petitions, registrations, etc with the Regional Office of the
DOLE. The regional office of the DOLE has attached to it
the med arbiters, they are personnel of the Bureau of
Labor Relations. They are supposed to coordinate
administratively with the regional office DOLE, they are
just attached to that office. Why? Because that office it is
the office where they receive their pay, to file their
attendance. But their orders come from the BLR. They
are officials of the BLR.
What are the jurisdiction of the BLR?
Registration of unions
Cancellation registration
Petitions for certification election
Intra union disputes, where the EEs are
aggrieved by the actions of the union
Inter union disputes, 2 unions fighting each
other
It is the BLR who has jurisdiction, the med arbiter has
jurisdiction.
Alright, now lets go thru them 1 by 1:
1. Local Union intra union disputes for violation of:
a. Constitution and by-laws
b. Rights and conditions of membership
under 241 (taas kaayo ang provision,
please see your codals nalang. )
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Now, this is filed with the Med Arbiter. Give an example
of a union member filing a complaint against his union.
Let us say management says since the weaving
machine tender has retired the position is now
open to be filled out. Following the CBA, we are
asking the union to submit to us their
recommendation. Now, the weaving machine
tender is the head of that machine, but there
are several other personnel there, theres the
oiler, feeder, assistant tender, normally it should
be assistance tender who is next in line. The
assistant tender, all of them, are union
members, but the president of the union has
**** to somewhere far down the line, and he
pulls out his nephew and he is the one
recommended. Hes not even an assistant
tender, he has no experience(?) running the
machine. Hes just a feeder. Feeding the
chemicals that will produced the thread that will
be woven. So the assistant tender is aggrieved.
Now, can he file a case with the med arbiter because he
was by-passed by the union?
NOT YET! What must he do? He must exhaust
all the internal means in the by-laws of the
union. Because there are supposed to be
remedial measures in the by-laws of the union.
So he files a claim with the union, the union
goes into an investigation and the union says
you were not chosen, there was a committee
and several names were submitted. The one
who is chosen is this guy [nephew] its only
incidental that he is the nephew of the union
president.
So after he gets THAT judgement, he has now
exhausted the internal remedies. Hes now
ready to go to the BLR med arbiter.
He files an intra union complaint, hes being
discriminated against by the union, in favor of
somebody who is less qualified than he is, the
nephew of the president of the union.
What will the med arbiter do?
He will say it is not for me to overturn the
decision of the union. I cannot substitute my
judgment for the judgment of the union as to
who should be recommended for the position.
So therefore, I cannot do anything.
What is his next step?
He appeals to the Secretary of Labor or the
director of the BLR.
o Take note, if it is in Metro Manila, the
director does not review the decision of
the med arbiter, it is the secretary of
labor.
o If it comes from the provinces other
than the NCR, it can happen that the
decision of the med arbiter is reviewed
by the Director of the BLR.
From that decision of the
director of BLR, you go now to
the Court of Appeals, you do
not pass through the
Secretary.
And the Secretary has no
power to review the decision
of the director of the BLR.
That has been the ruling of
the Supreme Court.
2. Alright now lets go to #2 classification of cases
election of officers, election contests.
III Manresa 2014-2015
There is a lot of fighting among unions especially the big
unions. Then theres an election. The particular group of
candidates, lets say they have been cheated on by the
incumbent set of officers who are re-elected. This is an
election contest. Where do you file that?
You file that with the Med Arbiter. That is an
intra union controversy.
3. CBA registration
Remember 30 days after the CBA has been signed, it
must be posted in 2 conspicuous places in the workplace
and then it must be ratified by the majority of all of the
bargaining unit. That is called as attested, sworn to in an
affidavit of the secretary of the union, and then attested
by the president, and that is filed with the BLR together
with copies of the CBA. That is filed there, and payment
of P1,000 because it is the obligation of the ER to pay the
registration.
Now, suppose there will be na EE who will complain I
never saw that CBA. I never read it, it wasnt posted at
all So hes challenging the sworn statement of the
secretary. And then they will say oh, look at it, the
attached signatures of those ratified. Oh you already
filed it! This is my signature. That is my signature when I
received by signing bonus but I did not read it But it
says so here that you have read it and understood what
you have read. As a consequence you receive the signing
bonus Usa ra gani ka magcomplain, anugon lang
usikusik ka lang sa panahon, maayo unta na daghan mo
na mausab pa na (sufficient number).
4. Remember there are 2 kinds of registration:
a. registration of an independent union
(239)
ART. 239 [234]. REQUIREMENTS OF REGISTRATION.
A federation, national union or industry or trade union
center or an independent union shall acquire legal
personality and shall be entitled to the rights and
privileges granted by law to legitimate labor organizations
upon issuance of the certificate of registration based on
the following requirements:
(a) Fifty pesos (P50.00) registration fee;
(b) The names of its officers, their addresses, the
principal address of the labor organization, the minutes of
the organizational meetings and the list of the workers
who participated in such meetings;
(c) In case the applicant is an independent union, the
names of all its members comprising at least twenty
percent (20%) of all the employees in the bargaining unit
where it seeks to operate;
(d) If the applicant union has been in existence for one
or more years, copies of its animal financial reports; and
(e) Four copies of the constitution and by-laws of the
applicant union, minutes of its adoption or ratification,
and the list of the members who participated in it.
b. Registration of a chapter
i. usually done by the issuance
of a charter certificate by the
federation and
ii. then the local subsequently
holds a meeting, adopts its
own by-laws or just certifies
that the by-laws are the same
as that of the federation, and
iii. then it submits the financial
accounting of its expenses if it
has been in actual operation
for about a year, and
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iv. it lists its officers, all those
who voted for the officers,
v. submit that to the DOLE-BLR
and
vi. then they become a full union
personality, not just for
purposes of filing of
certification election but also
for all other exercises of
personality like filing a case in
behalf of its members.)
Visitorial Powers (288)
ART. 288 [274]. VISTTORIAL POWER. The Secretary
of Labor and Employment or his duly authorized
representative is hereby empowered to inquire into the
financial activities of legitimate labor organizations upon
the filing of a complaint under oath and duly supported
by the written consent of at least twenty percent (20%)
of the total membership of the labor organization
concerned and to examine their books of accounts and
other records to determine compliance or noncompliance
with the law and to prosecute any violations of the law
and the union constitution and by-laws; Provided, That
such inquiry or examination shall not be conducted
during the sixty (60)-day freedom period nor within the
thirty (30) days immediately preceding the date of
election of union officials.
Inquiry into the unions financial activities. 288 is the
power of the Sectary or any of duly authorized
representative to do an exercise visitorial powers.
Now, I told you that the BLR on its own without need of
the **** of the Secretary of Labor has its powers to visit
and inspect unions at any time of the day as long as their
union officers are open(?). Where is that found? BLRs
power even without the **** of the Secretary?
Sec. 16, Chapter 4, Book 4, Title VII of the
Administrative Code of 1987
SECTION 16. Bureau of Labor Relations.The
Bureau of Labor Relations shall set policies,
standards, and procedures on the registration
and supervision of legitimate labor union
activities including denial, cancellation and
revocation of labor union permits. It shall also
set policies, standards, and procedure relating to
collective bargaining agreements, and the
examination of financial records of accounts of
labor organizations to determine compliance
with relevant laws.
The Bureau shall also provide proper orientation
to workers on their rights and privileges under
existing laws and regulations, and develop
schemes and projects for the improvement of
the standards of living of workers and their
families.
That was pointed out by the celebrated case in
Latondena (?) Workers Union v. Secretary. 239
S 117. 1994 case
SECOND DIVISION
[G.R. No. 96821. December 9, 1994.]
LA TONDEA WORKERS UNION, petitioner, vs. THE
HONORABLE SECRETARY OF LABOR AND EMPLOYMENT,
and HON. PURA FERRER-CALLEJA, in her capacity as
Director, Bureau of Labor Relations, respondents.
MENDOZA, J p:
III Manresa 2014-2015
With regard to the first issue, the petitioner cites art. 274
of the Labor Code and Rule VIII-A of the implementing
rules, in support of its contention that the BLR had no
authority to conduct an examination of the books of the
LTWU and that such authority is vested solely in the
Secretary of Labor or his duly authorized representative.
These provision state:
Art. 274. Visitorial Powers. The Secretary of Labor and
Employment or his duly authorized representative is
hereby empowered to inquire into the financial activities
of legitimate labor organizations upon the filing of a
complaint under oath and duly supported by the written
consent of at least twenty (20%) percent of the total
membership of the labor organization concerned and to
examine their books of accounts and other records to
determine compliance or non-compliance with the law
and to prosecute any violations of the law and the union
constitutions and by-laws; Provided, that such inquiry or
examination shall not be conducted during the sixty (60)
day freedom period nor within the thirty (30) days
immediately preceding the date of election of union
officials.
Rule VIII-A
VISITORIAL POWER
Sec. 1. Exercise of visitorial power. The Secretary of
Labor and Employment or his duly authorized
representative shall inquire into the financial activities of
any legitimate labor organization and examine their
books of accounts and other records to determine
compliance with the law and the organization,
constitution and by-laws, upon the filing of a complaint
under oath and duly supported by the written consent of
at least 20% of the total membership of the labor
organization concerned.
Sec. 2. Period of inquiry or examination. No inquiry
or examination of the financial activities and books of
accounts as well as other records of any legitimate labor
organization mentioned in the preceding section shall be
conducted during the 60 day freedom period nor within
30 days immediately preceding the date of election of
union officials.
The petitioner argues that although art. 274 authorizes
the Secretary to delegate the examination of accounts to
a representative, the BLR Director cannot be considered a
duly authorized representative because the power to
examine the books of accounts of a union has already
been delegated to union account officers pursuant to the
implementing rules, Rule 1, sec. 1 (ff) which provides:
"Union Accounts Examiners " are officials of the Bureau
or the Industrial Relations Division in the Regional Office
empowered to audit books of accounts of the union.
On the other hand, the public respondents contend that
union accounts examiners are actually officials of the BLR
because the word "Bureau" in sec. 1 (ff) refers to the
Bureau of Labor Relations. At any rate, they contend that
by endorsing the case to the BLR , the Secretary of Labor
and Employment clearly designated the BLR to act on his
behalf.
Respondent's contention is well taken. The "union
accounts examiners of the Bureau" mentioned in Rule 1,
sec. 1 (ff) of the implementing rules as having the power
to audit the books of accounts of unions are actually
officials of the BLR because the word "Bureau" is defined
in Rule 1, sec. 1 (b) of the same rules as the Bureau of
Labor Relations.
Anyway, the delegation of authority to union accounts
examiners in Rule 1, sec. 1 (ff) is not exclusive. By
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indorsing the case to the BLR, the Secretary of Labor and
Employment must be presumed to have authorized the
BLR to act on his behalf. As already stated, the Secretary
made two indorsement: first, when he referred to the
BLR the letter dated July 27, 1989 of Ramon de la Cruz
and Norma Marin seeking the annulment of the audit
report of the DOLE NCR, and second, on September 4,
1990 when, instead of acting on the petition for review of
the union, he indorsed it to the BLR.
Independently of any delegation, the BLR had power of
its own to conduct the examination of accounts in this
case. Book IV, Title VII, Chapter 4, sec. 16 of the
Administrative Code of 1987 provides:
Sec. 16. Bureau of Labor Relations. The Bureau of
Labor Relations shall set policies, standards, and
procedures on the registration and supervision of
legitimate labor union activities including denial,
cancellation and revocation of labor union permits. It
shall also set policies, standards, and procedure relating
to collective bargaining agreements, and the examination
of financial records of accounts of labor organizations to
determine compliance with relevant laws.
The Bureau shall also provide proper orientation to
workers on their rights and privileges under existing laws
and regulations, and develop schemes and project for the
improvement of the standards of living of workers and
their families.
The Labor Code, as amended by RA 6715, likewise
authorizes the BLR to decide intra-union disputes. This
includes the examinations of accounts. Thus, art. 226 of
the Code provides:
Art. 226. Bureau of Labor Relations. The Bureau of
Labor Relations and the Labor Relations Divisions in the
regional offices of the Department of Labor shall have
original and exclusive authority to act, at their own
initiative or upon request of either or both parties, on all
inter-union and intra-union conflicts, and all disputes,
grievances or problems arising from or affecting labor-
management relations in all workplaces whether
agricultural or non-agricultural, except those arising from
the implementation or interpretation of collective
bargaining agreements which shall be the subject of
grievance procedure and/or voluntary arbitration.
The Bureau shall have fifteen (15) working days to act on
labor cases before it, subject to extension by agreement
of the parties.
Petitioner's contention that the intra-union dispute
mentioned in this provision does not include the
examination of accounts of the union because it
contemplates intra-union conflicts affecting labor-
management relations is untenable. Conflicts affecting
labor-management relations are apart from intra-union
conflicts, as is apparent from the text of art. 226.
This brings us to the second question, whether the
examination of accounts in this case is valid considering
that it was not initiated through a sworn written
complaint by at least 20% of the total membership of the
LTWU. As already stated, the case arose from a letter
written by 200, out of a total membership force of 1,015
of the LTWU. These represented 19.70% of the total
membership of the union, just a little less than the
required number.
The requirements referred to were inserted in art. 274 by
way of an amendment by R.A. 6715 which took effect on
March 21, 1989. On the other hand, the letter of the
union members petitioning for an examination of the
financial records of the union was made on March 14,
1989, i.e., seven days before the effectivity of the
III Manresa 2014-2015
amendments. At the time the letter was made, art. 274
merely provided:
Art. 274. Visitorial power. The Secretary of
Labor or his duly authorized representative is
hereby empowered to inquire, from time to
time, into the financial activities of legitimate
labor organizations and to examine their books
of accounts and other records to determine
compliance or non-compliance with the law and
to prosecute any violations of the law and the
union constitution and by-laws.
The validity of the request for examination of union
accounts must be determined as of the time of its filing.
Hence we hold that the request of the 200 union
members in this case was validly made and conferred
jurisdiction on the DOLE-NCR to conduct the examination
of the books of accounts of the petitioners.
It is indeed true that, in setting aside the audit report of
the DOLE-NCR, the BLR cited the fact that the
examination of accounts had been made within the so-
called "freedom period." But as the BLR pointed out in its
order dated September 29, 1989, the ban on examination
or audit of union funds within 60 days of the expiration of
the collective bargaining agreement had been a policy of
the Department of Labor and Employment even before
R.A. 6715 took effect. There is, therefore, nothing
inconsistent in holding that the examination of accounts
by the DOLE-NCR as void for having been conducted
within the freedom period and saying now that since the
letter requesting such an examination was made before
the effectivity of R.A. 6715, the requirements of sworn
written complaint and support of at least 20% of the total
membership of the union do not apply.
The examination subsequently ordered by the BLR,
although made after the effectivity of R.A. 6715, was
validly conducted because it was simply a continuation of
proceedings already began in the DOLE-NCR. As a matter
of fact the petitioners, in elevating the matter to the
Secretary of Labor, specifically requested that their letter
be treated as a motion for reconsideration or as an
appeal from the audit report of the DOLE-NCR.
Finally, it is claimed that petitioners Ramon de la Cruz
and Norma Marin were denied due process by the BLR.
As already shown, however, they were given every
opportunity to defend themselves, including a warning
that if they persisted in their refusal to submit the books
of accounts of the union they would be considered to
have waived the right to present their evidence. As they
did not heed the warning, we think the BLR was justified
in using, as basis of its examination, the certification of
La Tondea, Inc. as to the amount remitted by it to the
LTWU as union dues. This, at any rate, is a factual matter
and the rule is that the findings of facts of administrative
agencies, when supported by substantial evidence, will
not be disturbed.
So the Secretary or the BLR can exercise visitorial
powers.
Question: Does this include EEs organization in the public
sector?
Yes, it includes the EEs organization. Because
the EEs organization in the public sector are also
registered with the BLR, if they have intra union
disputes that is also covered by the BLR.
Suppose a BLR inspector goes to a unions office. What
can you expect?
It can ask give me the minutes of you election
officers meeting, who signed it, who voted, what
percentage in favor of this did they vote, you
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can ask for almost all questions(?). What is
your latest roster of members? As of what date
is this? Muingon sila as of the last pay day
because here is the day which will fall the union
dues that well check off for the members of the
union. So the BLR inspector has all the powers
to examine the records of the union.
5. Actions arising from 249 (again taas kaayo ang
provision) arising from administration and
accounting of union funds and other violations
of rights of members
Remember, they cannot bring an action for this within
the cooling off period. Why?
It is understood to be harassment of the
incumbent officers. So you must file the action
with respect to accounting of union funds
before the cooling off period that is what 288
says.
ART. 288 [274]. VISTTORIAL POWER. The
Secretary of Labor and Employment or his duly
authorized representative is hereby empowered
to inquire into the financial activities of
legitimate labor organizations upon the filing of
a complaint under oath and duly supported by
the written consent of at least twenty percent
(20%) of the total membership of the labor
organization concerned and to examine their
books of accounts and other records to
determine compliance or noncompliance with
the law and to prosecute any violations of the
law and the union constitution and by-laws;
Provided, That such inquiry or examination shall
not be conducted during the sixty (60)-day
freedom period nor within the thirty (30) days
immediately preceding the date of election of
union officials.
6. Petitions for Certification election
ART. 267 [256]. REPRESENTATION ISSUE IN
ORGANIZED
ESTABLISHMENTS. In organized establishments, when
a verified petition questioning the majority status of the
incumbent bargaining agent is filed by any legitimate
labor organization including a national union or federation
which has already issued a charter certificate to its local
chapter participating in the certification election or a local
chapter which has been issued a charter certificate by the
national union or federation before the Department of
Labor and Employment within the sixty-day period before
the expiration
of the collective bargaining agreement, the Med-Arbiter
shall automatically order an election by secret ballot
when the verified petition is supported by the written
consent of at least twenty-five percent (25%) of all the
employees in the bargaining unit to ascertain the will of
the employees in the appropriate bargaining unit.
To have a valid election, at least a majority of all eligible
voters in the unit must have cast their votes. The labor
union receiving the majority of the valid votes cast shall
be certified as the exclusive bargaining agent of all the
workers in the unit.
When an election which provides for three or more
choices results in no choice receiving a majority of the
valid votes cast, a run-off election shall be conducted
between the labor unions receiving the two highest
number of votes: Provided, That the total number of
votes for all contending unions is at least
fifty percent (50%) of the number of votes cast. In cases
where the petition was filed by a national union or
III Manresa 2014-2015
federation, it shall not be required to disclose the names
of the local chapters officers and members.
At the expiration of the freedom period, the employer
shall continue to recognize the majority status of the
incumbent bargaining agent where no petition for
certification election is filed. (Note: Article 267 of the
Labor Code, as amended, is further amended by Sec. 23
of R.A. No. 6715 and further amended by Sec. 10 of R.A.
No. 9481, effective June 14,
2007.)
ART. 268 [257]. PETITIONS IN UNORGANIZED
ESTABLISHMENTS. 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 any legitimate labor organization,
including a national union or federation which has already
issued a charter certificate to its local/chapter
participating in the certification election or a local/chapter
which has been issued a charter certificate by the
national union or federation. In cases where
the petition was filed by a national union or federation, it
shall not be required to disclose the names of the local
chapters officers and members.
ART. 269 [258]. WHEN AN EMPLOYER MAY FILE
PETITION. When requested to bargain collectively, an
employer may petition the Bureau for an election. If
there is no existing certified collective bargaining
agreement in the unit, the Bureau shall, after hearing,
order a certification election. All certification cases shall
be decided within twenty (20) working days. The Bureau
shall conduct a certification election within twenty (20)
days in accordance with the rules and regulations
prescribed by the Secretary of Labor and employment.
Alright, the BLRs award or decision is appealable to the
Court of Appeals. From the CA you go to the SC.
Alright, 3rd column, BUREAU OF LABOR
RELATIONS
1. Federation/national union/trade union centers
remember that for a federation to be
legitimately given a license as such, how many
locals do they need?
a. 10 locals that must all be exclusive
bargaining agents in their workplaces.
But now, a violation of this requirement
is no longer a group for cancellation.
So what happens if the federation no longer has a local?
It is an empty federation.
Will its registration be cancelled?
Technically speaking, no because that is not one
of the grounds for the cancellation of
registration.
2. Registration/revocation and cancellation cases.
Why is this separate?
a. Because a union once registered, its
registration or separate and distinct
personality cannot be attacked
collaterally.
b. Whats the meaning of that? To attack
the personality of the union you must
file a separate and distinct case.
You file a petition for certification
election and the ER makes a
manifestation that that union does not
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have a registration, etc, it brings up the
issue of the personality of the union.
NO MORE you cannot do that, before
YOU COULD BUT NOW NO MORE.
9481(?) prohibits that.
If you want to attack, you have to file a
separate petition.
c. Intra union disputes/ inter union
conflicts
i. Again, that is original
jurisdiction of the BLR.
Here is a labor federation that is ousted while the CBA is
still in effect, of which it is the signatory of the CBA. It
was ousted by an overwhelming majority of the
bargaining unit. Then there is now a new labor
federation, to which the local union has been ****. Now
the ousted federation files an inter union dispute against
the new substituted federation. Is that an inter union
dispute?
Yes it is. The BLR has to decide that.
Alright we go now to the 4th column, POEA
1. Cancellation and suspension of license or
authority to recruit of recruitment agencies
Of course you also register here. POEA has jurisdiction
for:
1. Registration
2. Cancellation
3. Suspension of license or permit to recruit
Take note POEA also has:
4. Visitorial powers at any time of the day or night
if the office of the licensee or recruiter is open,
then the POEA inspectors can go in. what can
they check?
a. They can check the contracts between
the placement agency and the
principal, or they can check the
contracts that are offered to their
recruits, they can be asked to produce
the list of tariffs, placement fees, the
other payables or fees that an OCW
pays them.
b. Why do they have be checked? They
[agency] cannot collect anything that is
not approved. It cannot collect.
c. Remember in the Shamir(?) case? They
collected 70k from me, as placement
fee, but Shamir says, no, only 2k. SC
says return 70k with interest. SC
believed Cabelles (?)
d. why did the sc believe cabelles? Nag
produce pa silag resibo wa gipirmahan
ni cabelles ang iyahang gibayad kay 2k
ra, naa tay proof. Wa man
nakapresent. Ingon sila ana ra among
tarifa oh, 2k lang man among
pangayuon. Schedule of tariff man to,
wala sila pakita ug resibo. And if you
are in possession of that documentary
evidence and you do not present it,
that means you are ****.
2. Disciplinary actions vs. OCWs
What is that? For instance, you cannot go to Japan as an
entertainer if you are a minor. You must be at least 18
years old to go to Japan to be an entertainer. Now, what
happens if you are bound in Japan and you are 16 yrs old
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and you are dancing now there is the cabaret? What will
happen?
According to 8042 as repeated in 10022(?),
immediate repatriation. You are brought back.
At whose expense? At the expense of the ***.
You are repatriated and your passport is
recommended to conciliation(?) and you cannot
be given passport for 5 years. You are
penalized. Disciplinary actions vs. OCWs. That is
equivalent to falsification of public document,
your passport is your public document. You say
you are 18 and you are only 16.
That is an example of disciplinary action of OCW.
[tragic na nag recording diri banda sorry ]
Again, what are other questions here? The POEA issues a
bulletin, no employment in Iraq because there is war. NO
employment in Syria. Ilang visa, Dubai. Kuwait. Lupad na
sila didto, pagabot didto naghulat na ang agent. Dadon
na sila, padrive-on na sila ug truck diretso sa Iraq. Tua
na sila sa Iraq. Unya karon na hostage na sila unya
iyahang inahan nagtawag na silahang congressman, duol
dayon kay Binay kuhaon dayon niya. Pagkakuha ana nila,
they are supposed to undergo case(?). going against
*****. *story about airforce pick up* those are the
disciplinary issues of OCW.
Remember there are already 2M in the middle east and
then once you receive *** anyone of the OCW who is in
trouble there has a right to counsel. so he has to report
his case to the embassy or consulate and the consulate
must look for a local lawyer for him. That is now
mandatory. In fact the embassy or consulate cannot give
the alibi that it is closed because it is a holiday in places
where there is a considerable number of Filipino OCWs,
the embassy cannot be closed. There has to be a skeletal
force manning, hotline ready to respond to complaints of
OCWs. Kanang gibukbuk na sa ilahang amo, kanang
girape na gidala na sa hospital. They are supposed to
answer immediately. That is OCW disciplinary action.
OCTOBER 9, 2014 (5)
Now we are in Regional Director.
Now remember there are 2 kinds of jurisdiction for
the RD.
1. There is the visitorial powers. In other words
enforcement jurisdiction.
a. The visitorial powers is not figure-
sensitive. It is not covered by the same
limitations as not exceeding P5,000.
b. Visitorial powers does not matter how
much the underpayment or non-
payment of wages are with respect to
the minimum wage
2. The so-called adjudicatory powers, quasi-
judicial powers. The quasi-judicial powers is
provided by 129.
a. It is dependent on the amount which is
quantitatively fixed. It is figure-
sensitive. So the limit is P5,000, not
exceeding. Kung musubra nana sa
P5,000, wala nay apil sa adjudicatory
jurisdiction.
COMPARE WITH OTHER FORA:
If you recall, there is in the handbook of the DoL, they
quote the minimum wage law 6727, the latest
amendment to that. It says there that one of the
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remedies for non-payment of minimum wage is the
award of treble the amount of underpayment. Unsa
maning treble? 3 times the amount may be awarded. But
if you look at it, ONLY A JUDGE can award it in the
criminal prosecution of violation of the minimum wage
law because the minimum wage law has criminal
liabilities.
That I can never forget because in 1986, when the union
went on strike here and there was adjustment of the
minimum wage, whereupon the union filed a criminal
complaint against Father Samson, the president then, for
violation of the minimum wage law.
What is the defense? The defense is this. In
special laws, even if intent does not matter, you
must intend the act for it to be criminal. If you
do not intend the act, then it is not criminal. He
did not intend not to pay much less did he
intend to violate. The law came in and he has
nothing to pay it.
Treble the amount of non-payment or underpayment
may be adjudged the ER but by the courts in a
criminal prosecution for violation of the Minimum
wage Law. Otherwise, if you file just a pure money
claims complaint, the decisive issue is the amount.
Jurisdiction is determined by the amount.
If you accompany it with a prayer for reinstatement, then
it is no longer within the jurisdiction of the Regional
Director. Why? Because the main cause of action
becomes termination which is now under 224, under the
ORIGINAL AND EXCLUSIVE JURISDICTION OF THE
LA. LAs jurisdiction includes original and exclusive,
termination. You are asking to be reinstated because you
are terminated. That is the main cause of action. And
ancillary to that is money claims. At that point, money
claims is no longer amount-sensitive. It can be lower
than P5,000 and the LA has jurisdiction because he has
jurisdiction over the merits of the case in the main.
2 kinds of visitorial powers jurisdiction:
1. Labor standards and
2. occupation, safety and health.
Remember the powers of the Regional Director as the
DULY AUTHORIZED REPRESENTATIVE OF THE
SECRETARY OF LABOR.
He can issue a restraining order to suspend
operations at the workplace. Ex-parte. Without
need of hearing the side of the ER, he can issue
provided the grounds are grave and imminent
danger to the life and limb of the workers or
other third persons.
When it is occupational safety, the power of the
Secretary is recognized as urgent.
Will immediately issue suspension of operations.
Then what is the obligation of the RD? He has to
call a hearing within 24 hours and the only issue
to be heard is WON the restraining order will be
continued or it will be discontinued.
Now the ER can submit evidence to prove that
the restraining order should be lifted. Otherwise,
it will continue. For as long as the grounds for
which the restraining order was called prevails,
the restraining order obtains.
You know of course that there is a new DoL IRR. That is
VOLUNTARY COMPLIANCE AND CERTIFICATION.
There are now 5 kinds of voluntary compliance and
certification. If you get 1, for 3 years, you are free of any
visitorial inspection.
1. Compliance of labor standars,
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2. compliance of health and safety,
3. compliance of employment of minors, that you
are not employing any minor, child labor,
4. compliance with gender sensitivity laws.
a. Remember there are laws for
appreciating the difference if you have
women in your work force. There must
be separate comfort rooms.
5. And then there is certification, consisting of
clearance from any evidence of trafficking.
You get a clearance, for 3 years you will no longer be
inspected.
What does that consist of?
You call the DoL, the ER calls the DoL then you
get a third party representative with task force
that is in charge in enforcing this special laws.
Then you inspect the place.
Then they certify. For 3 years you need not be
inspected anymore.
If it is pure money claims, remember, NOT EXCEEDING
P5,000 INDIVIDUAL AGGREGATE MONEY CLAIMS.
The totality of the claims of one individual
should not exceed P5,000.
Illustration: If there are multiple complainants, 20
complainants against 1 ER, and 1 has a money claims
complaint that exceeds by P10 of the P5,000. Mahimo ba
ng pamub-an arong magpabilin?
Take note that the proper action of the RD of
Labor according to 159 is not to dismissed the
claim. What must he do? He indorses the case.
Where? To the LA.
Illustration: Does he do that even if there is only 1 and
20 others are below P5000?
Yes, everybody goes. Why? In order to avoid
conflict of decisions. They have to go together.
Now the issue is, does the Secretarys authorized
representative, maybe the RD, have jurisdiction to
determine the existence of ER-EE relationship? That is
the issue raised in
Peoples Broadcasting vs. Regional Director of Labor
Peoples Broadcasting (Bombo Radio), because there was
one complaint from a Bombo Radio complainant, that he
was not being paid the minimum wage. Wala kuno siyay
night shift differential. Nag trabaho siya lapas na sa alas
11 sa gabie. What was the answer of Bombo Radio? BR
says this complainant is not being paid night shift
differential because she is a talent. She is not an EE. She
works at 11 because the studios are already free. After
11 music nalang man na. After 11 kinsa naman maminaw
nimu? Bantay sa morgue, pulis na katugon, taxi driver na
katugon sab. O kana bang law student na insomniac na.
Wa namay trabaho ang studio ana, ana na sila mag
record sa mga drama. Mao nay iyang trabaho. Tiguwang
siya tanawon pero batan.on siya ug sinultihan. BR says
she is not an EE, she is an independent contractor. But
the RD of Labor insisted on taking jurisdiction over the
case. Thats for certiorari.
The first decision of the SC, Peoples
Broadcasting, SC says that the RD maybe does
not have jurisdiction to determine the existence
or non-existence of ER-EE relationship. That was
the 1st decision.
But there was a very strong dissent by Justice
Brion, who is supposed to be the labor authority
of the SC. Why? Because Justice Brion used to
be the Secretary of Labor and he pushed for
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visitorial powers. He pushed for the adjudicatory
jurisdiction of the RD as a mode of unclogging
the dockets of the LA. The LAs now are saddled
with so many cases.
That Peoples Broadcasting ruling en banc, more
than a year later has been reversed. THE SC
NOW SAYS, THAT THE RD OF LABOR HAS
POWER TO DETERMINE THE EXISTENCE
OR NON-EXISTENCE OF ER-EE
RELATIONSHIP. It is not just a presumption
on their part. They have power to determine the
existence of ER-EE relationship.
What is the basic argument why the RD has no
jurisdiction?
Because the RD is not equipped to handle
adversarial process just like the LA. Because the
RD is an implementor and enforcer of the law.
He has no time to sit back and receive position
paper, make inspection, hear witnesses. Wala
siya ana. Most of the time he is out of the office.
He does not have the time to consider
everything. That is the basic reason.
And yet Brion says how can you award
underpayment and non-payment of minimum of
wage if you cannot determine ER-EE
relationship? What is the basis for your award?
The majority opinion says the basis for your
award is the presumption. But if this
presumption is contested, you have to step
aside and leave it to the LA who can handle
adversarial processes. If the existence of your
presumption is questioned.
But anyway the law now says from the 2 nd en
banc decision of the SC, Peoples Broadcasting,
which was brought back. The 1st was a decision.
The 2nd is a resolution of the MR which is 1 year
and a half.
TAKE NOTE THERE ARE OTHER POWERS OF THE
RD.
The RD of Labor can issue a restraining order
to stop the effects of dismissals or
retrenchments or terminations due to
redundancy.
o Remember, before you can terminate
workers on the ground of redundancy,
retrenchment, labor saving devices, or
financial loss, the ER must serve notice
to the EE one month before the date of
effecting the termination and also the
DoL.
o The LC says, if the RD foresees that
this is in implementation of a mass
layoff. Daghan kaayo ang natanggal.
o Or this will give rise to a serious labor
dispute, and then the RD of Labor can
suspend the termination. They can stop
the termination.
o What follows after that stop?
Assumption of jurisdiction by the
Secretary if a union is involved because
they want to stop the labor dispute that
might affect the economy of the
Philippines. Assumption of jurisdiction.
What is required for the exercise? Just
the notice. Because the law does not
require any hearing. The RD can do
that.
Again, the RD can be the hearing officer when
the Secretary of Labor assumes jurisdiction of a
labor dispute where the ER belongs to an
industry indispensable to the national interest.
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o Does the Secretary conduct the
hearing? No.
o the Secretary delegates to the RD
whose territory is where the labor
dispute is upon. So the RD becomes
the hearing officer. He suspends most
of the things that he is doing to be the
hearing officer.
o And then he makes findings of fact and
recommendations to the Secretary and
the Secretary issues his decision.
What is the rule? Remember the SC has said,
the RD cannot modify the assumption of
jurisdiction order. He is acting and his acts
cannot be of wider discretion than the
Secretary itself. Automatic to that assumption
is return to work and the ER must accept all.
o The RD cannot modify the order and
say you do not have to return to work,
you are just returned to payroll.
Because if you return to work the
animosity is at such a level that there
will be a physical fight in the workplace
and so I am telling the workers who
are supposed to return, you do not
have to return to work actually. You
just return to payroll.
o The SC has said you CANNOT DO
THAT IF YOU ARE THE RD
BECAUSE YOUR PURPOSE IN
OBEYING THE LAW TO RESUME
WORK is not for the sake of peace and
order. What is it? It is for the sake of
economy to return to the status quo
ante bellum in that particular workplace
so as to be productive. To contribute to
the economy.
o It is not in favor of any party that an
assumption of jurisdiction is exercised.
Thats why the RD cannot modify,
adjust the order of the Secretary of
Labor assuming jurisdiction and
restraining all strikes and ordering a
return to work.
All these you have to remember with respect to RD.
Last column, Labor Arbiter.
ART. 224 [217]. JURISDICTION OF LABOR ARBITERS
AND THE COMMISSION. (a) Except as otherwise
provided under this Code, 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 the parties for decision without extension,
even in the absence of stenographic notes, the following
cases involving all workers, whether agricultural or non-
agricultural:
1. Unfair labor practice cases;
2. Termination disputes;
3. If accompanied with a claim for reinstatement,
those cases that workers may file involving wages,
rates of pay, hours of work and other terms and
conditions of employment;
4. Claims for actual, moral, exemplary and other
forms of
damages arising from the employer-employee
relations;
5. Cases arising from any violation of Article 264
[now 278] of this Code, including questions involving
the legality of trikes and lockouts;
6. Except claims for Employees Compensation, Social
Security, Medicare and maternity benefits, all other
claims, arising from employer-employee relations,
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including those of persons in domestic or household
service, involving an amount exceeding five
thousand pesos (P5,000.00) regardless of whether
accompanied with a claim for reinstatement.
(b) The Commission shall have exclusive appellate
jurisdiction over all cases decided by Labor Arbiters.
(c) Cases arising from the interpretation of collective
bargaining agreements and those arising from the
interpretation or enforcement of company 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.
First class of cases is unfair labor practice.
Remember what is the prescriptive period for unfair labor
practice? When must you file an unfair labor practice
complaint?
You must file it within 1 year from the time the
right of action accrues.
If it is unfair labor practice dismissal and you did not file
it within 1 year, what happens?
You can still file it as an ordinary illegal dismissal
because an unfair labor practice dismissal is a
dismissal without any grounds. Therefore you
can file it as an ordinary illegal dismissal and you
have 4 years to do it under Lumanta vs. NLRC.
Mao ning mga numero na bantayan ninyo sa prescription.
1 year unfair labor practice.
Money claims 3 years even if it is from a written
contract.
o This goes against the general rule in
the Civil Code. What is the prescriptive
period for claims from a written
contract? Civil law? 10 years.
o Labor prescriptive period is 3 years that
is why the obligation of the ER to
maintain payroll records for as far as
the LC is concern is 3 years also
because that is the prescriptive period
for money claims.
For illegal dismissal it prescribes in 4 years.
OCTOBER 9, 2014 (8)
Let us examine this last column. Jurisdiction of the
labor arbiter.
San Miguel vs. NLRC
180 SCRA 281; 1999 case
SMC invited its employees to make suggestions for cost-
savings devices and their processes and there is one
employee who complained that he submitted a particular
procedure or program and it was returned by the
administration or management of San Miguel to him and
he claims that eventually that suggestion he made was
put into practice and SMC realized savings.
So he was claiming that he must be entitled to a portion
of the savings as SMC has said that if your suggestion is
successful, you would be given a 20% share of the
savings. He filed the case with the labor arbiter and the
labor arbiter decided in his favor.
SC SAID, LABOR ARBITER HAS NO
JURISDICTION AT ALL BECAUSE THIS IS
AN INNOMINATE CONTRACT WHICH IS
UNDER THE CIVIL CODE. SC says to resolve
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this dispute you do not resolve the labor code.
You use the civil code.
So therefore the one which has jurisdiction is the regular
court.
Here comes the case of
Pepsi Cola vs. Martinez
112 SCRA 578.
In this instance here is a salesman in Pepsi Cola who
claims that he participated in a contest of Pepsi Cola.
Managemnet said that if you are the highest in your sales
contribution profit, you will receive house and lot. He
claimed that he had highest sales performance but
instead of entertaining his claim, Pepsi Cola fired him. He
filed it with the regular courts.
SC SAYS NO JURISDICTION OF THE
REGULAR COURT. WHO HAS
JURISDICTION? LABOR ARBITER. There is
already termination. The cause in the main is
termination and the anciliary cause is the
contest.
Illustration: When there is a cessation of engagement or
termination of employment through a position that is
filled up for the directors
THE LABOR ARBITER HAS NO
JURISDICTION because if so he has to look
the internal workings of the board of directors.
It is the REGULAR COURT which was
designated by the SC as an INTRA-
CORPORATE WORK. Such a controversy will
be considered as intra-corporate controversies
which under PD 902-A Sec. 6 belongs to the
regular courts, under the Securities and
Exchange Code.
That is the line of decisions of the SC and I can give you
the list of cases of the SC:
Cagayan de Oro Colliseum vs. Minister
Dy vs. NLRC
PSGA vs. Lanao*
Fortune Cement vs. NLRC
GR: REGULAR COURTS HAVE JURISDICTION ON INTRA-
CORPORATE ISSUES
THERE ARE 2 EXCEPTIONS:
Gregorio Araneta University Foundation vs.
Teodoro 167 SCRA 79 [1988]
He was a teacher in the university for many years.
Eventually he was promoted as vice-president for
administration. But that position was a top management
position and your tenure is every year by vote of the
board of directors. They did not renew his appointment.
They told him goodbye. They gave him a little pabaon
and he was dismissed. He filed an illegal dismissal
complaint with the labor arbiter. Labor arbiter entertained
it.
SC: LABOR ARBITER HAS JURISDICTION.
The board of directors of the university has
discretion to unseat top management.
But, when they unsit him they cannot dismiss
him from the school because he has a tenure as
a teacher. And that tenure is found under Book
VI of Labor Code and academic freedom.
CONCLUSION: So he must not be dismissed. That is an
issue that needs the intervention of the use of the labor
code so therefore the labor arbiter has jurisdiction.
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Salafranca vs. Philam Life
300 SCRA 469 [1998]
Salafranca was the security head of the Philam Life Subd.
The company wanted to get rid of this head of security
because he was no longer efficient. They amended the
articles and by laws of the constitution of the
homeowners to include the position of the head security
to be appointed by the board. Once they did that, they
first appointed him for 1 year. The following year, they
no longer appointed him. He was unceremoniously
dismissed. He filed an illegal dsmissal compaint with the
labor arbiter. Labor arbiter dismissed the case following
the decision of Cagayan Colliseum.
SC SAYS LABOR ARBITER HAS
JURISDICTION because the amendment in
the articles was clearly to cirmcumvent his right
to security of tenure. They are hiding behind the
corporation code in order to escape the
prohibitions under the Labor Code. It should be
the Labor Code that should be used in resolving
this particluar dispute.
Principle: The meaning now in all these cases when the
SC says all other money claims and controversies arising
from ee-er relationship, the meaning of arising from is
WHAT LAW IS TO BE USED IN ORDER TO RESOLVE
THE DISPUTE.
If it is the LC then the one that has jurisdiction
is the labor tribunal.
If it is not the Labor Code, then it is the regular
court.
Ill show you another case
Nestle vs. NLRC
195 SCRA 340 [1991].
This Nestle has a group of salespersons to push their
infant formulas, dairy products. So different salespersons.
Those that are pushing for infant formulas are provided
by samples. These salesmen were found sold those
samples. They were investigated and the company
decided that because the conduct was so great they have
to dismiss them.
Now, when that was announced to them that they were
dismissed they filed un illegal dismisal complaint with the
labor arbiter. Once it was filed with the labor arbiter, the
company sent them notice saying you have company
cars with you under car plan.
Background: A car plan goes like this, the
company buys the car. It places it in the name
of the individual employee. It is chattel
mortgaged back to the company. The
company holds the title by way of chattel
mortgage. The individual employee pays the
company a monthly sum to amortize. He has to
pay it with his car allowance.
The company issued a notice to the salesmen. Return
the car to us or you pay the balance. You can have the
car, we can release the chattel mortgage just pay the
balance. Otherwise, return it to us. Wa man sila. They
did not answer. Nestle tried to redeem the possession of
personal property. They filed replevin. Abtik man kaayo
ang mga salesmen. Wa naman dira ang sakyanan
gibutang. They opposed the replevin on the ground of
lack of jurisdiction. The court has no jurisdiction to issue
a writ of replevin because there is a pending case of
illegal dismissal. This issue of the car is a prejudicial
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question. Illegal dismissal has to be settled first before
this issue of possession of company car is to entertain.
SC: the contract of chattel car plan is separate
and distinct contract. It is a nominate contract.
IT MUST BE SETTLED BY THE REGULAR
COURTS. NOTHING TO DO WITH EE-ER
RELATIONSHIP.
Two years ago there was again another issue
Smart Communications vs. CA.
Gitagaan siya ug company car. The thing is the company
car was only in memo. There was no chattel mortgage. It
was just a memorandum between individual ang Smart
Corporation. So, she had possession of the vehicle. Now,
the same thing, she was terminated. The company said
return the vehicle if not pay the balance. But the lady
manager refused to return. Again the claim was no
jurisdiction because this is not chattle mortgage. So,
there is no jurisdiction of the regular courts. This is part
and parcel of the total package of my compensation.
SC SAID: IT IS THE REGULAR COURT THAT
HAS JURISDICTION. Who has the better right
to personal property is a civil code issue.
SO, EVEN IF YOU DO NOT HAVE A
CHATTLE MORTAGE, it is the regular court
that has jurisdiction. So, pay attention to those
cases.
Ill give you the authority ha where several employees for
money claims against the same employer and some
employees on individual claims exceed 5,000 and others
go back, jurisdiction is within labor arbiter.
Eva Management vs. Dela Cerna
29 July 1991
[unpublished case]
Bulldog Security Agency vs. Undersecretary
17 July 1991
[unpublished case]
5Ds Liner vs. DOLE
2 October 1991
[unpublished]
The SC did not even bother to publish these. I dont
know why but perhaps because it is common sense that
you do not split cases. It must go to just one forum.
Otherwise there will be miscarriage of justice if there is
different judgments.
Now, there is in the notes given to you of termination
that if you file an appeal of an illegal termination finding,
it is the employer who was defeated in the labor arbiter,
file ka ug appeal, the bond must be posted together with
your position paper within 10days.
If you DO NOT AGREE WITH THE AMOUNT
OF THE BOND and you want to reduce it, the
latest case now is to file a MOTION FOR
REDUCTION OF BOND when you include at the
same time that you file that motion to put a
bond at least 10% of the amount that you are
objecting to.
What is the basis for the computation of the bond?
According to SC, the basis of the computation of
the bond is the money award
o but excluding moral damages and
attorneys fees.
o All others like backwages, separation
pay, that is all included in the
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computation because you must secure
that with the bond but not moral
damages and attorneys fees.
So when you appeal a money award and your appeal
only questions moral damages and attorneys fees, you
do not file a bond because that is not included in the
computation.
So, now, supposed the labor arbiter renders a decision
and orders reinstatement without any computation as to
the amount that is to be paid. He makes a finding of
underpayment or nonpayment of wages or 13 th month
pay and then he says wherefore in view of the foregoing
employer is hereby ordered to pay 13th month pay and
night shift differential but he DOES NOT GIVE THE
AMOUNT, so even if you want to file a bond at the same
time you present your appeal position paper within 10
days, you cannot do it. So, what do you do?
You file a MOTION FOR CLARIFICATION AS TO
THE AMOUNT.
Once that motion is granted, how much time do
you have? SC said you have a complete 10 days.
The 10 day period is extended because it is not
your fault that you cannot provide for the bond.
Alright, money complaints.
Bondoc vs. NLRC.
Here is a company president that grants to an
employee a loan to purchase a car because he was
managing officer of a dealership and a car repair
shop. He is given a loan as his one of his privileges and
given the loan and given car repaired. He resigngs and
transferred to another company and leaves behind an
unpaid loan. Question: where should the company file
suit?
It is with the REGULAR COURTS.
Apudaca vs. NLRC.
Here is an employee who has not been paid 13 th month
pay and the company says we will just offset that and
considered paid your unpaid subscription stock with the
company. Can you do that?
NO, THOSE ARE 2 different contractslabor
code [13th month pay] and corporation code
[unpaid stock]. YOU CANNOT OFFSET.
Air Material Wing Savings and Loan Association
June 13, 1994.
Supposed a lawyer is employed by the company as its in
house counsel and one of his items of compensation is
notarial fees but at reduced rates because he is also
receiving a monthly salary. When he is terminated, he
files not only an illegal dismissal complaint but also
money claims over unpaid notarial fees. Does the labor
arbiter have jurisdiction over unpaid notarial fees?
YES.
Gacanay vs. NLRC
260 SCRA 46 [1996]
Now, to enforce liability arising from breach of trust as
well as to recover any amount allegedly misappropriated
in the course or performance of salesmen function
It must be brought before the REGULAR
COURTS because that is a criminal case.
Please keep in mind:
Zamboanga Water Distict vs. Buhat
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Water districts are GOCCs and its employees CANNOT
RESORT TO THE LABOR ARBITER. You are organized
by virtue of the Water Code. So you cannot enter into a
CBA. Collective Negotiation Agreement ra mo. You cannot
claim 13th month pay. There is no 13th month pay in the
standardization pay. No jurisdiction ang labor arbiter.
Illustration: Now, may the labor arbiter rule upon the ff:
1. Claims for overtime pay
2. Holiday pay
3. 13th month pay
4. Sick-leave pay
Which are all included in the COMPLAINT FOR
ILLEGAL DISMISSAL but not proven. There is no
evidence at all presented by the complainant?
SC says YES, the burden of proving that
payment has been made rest upon the party
who will suffer if no evidence at all is presented
by either party--- that is the employer. That is
why he is required to keep payroll records up to
3 years. Pag-ingon niya wa ko bayri! diara
ang payroll record! Nakadawat na ka!
If you are the possessor of documentary
evidence and you do not introduce it to the
forum, the conclusion is suppression. That
means inimical to your cause. Dili pabor nimo
kay wa man nimo gipakita.
Seaborn Carriers Corp vs. NLRC
237SCRA 343 [1994].
Alright, claims not alleged in the complaint but
made in the complainants position paper. You
know a complaint with the labor arbiter is just a checklist.
Naa na na dira tanang money claims, 13 th month, night
shift differential, overtime pay, regular holiday pay,
special holiday pay, naa na dira and imo na lang buhaton
mag-check na lang ka. Nahuman naman nimo ug check.
Ug wa ka kabalo cheke. Paghuman nimo pirmaha. Labor
arbiter himself will do the notarizing. Verfied man na;
under oath. Kaduha na i-notarized. Kinsa may
murecognize ana, ang labor arbiter na muhusay ana. Wa
nay bayad. So present ka dinha. Now, its up to the
employer to prove that he was paid or that he was never
present during those dates. You have to refute those. If
not, patay ka.
PDP vs. NLRC
233 SCRA 250 [1994].
Claims not alleged in the complaint but made in the
complainants position paper
yes
Consolidated Rural Bank vs. NLRC
301 SCRA 223 [1999]
Can the labor arbiter rule on the merits of the case simply
on the basis of position papers filed by the parties?
YES, it is entirely within the bounds of labor
arbiters authority to decide the case based on
mere position papers and supporting documents
without formal trial or hearing.
Manebo vs. NLRC
229 SCRA 240 [1992]
Can the labor arbiter rule on the merits of the case on
the basis of a supplemental position paper and
memorandum submitted by one of the parties after
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From the Lectures and Hand-Outs of Father Agustin L. Nazareno
the parties can file their position papers and agreed to
consider the case submitted for decision?
Normally what the labor arbiter does is this, file ka ug
complaint. Ipa-summon niya ang employer. The first
meeting up to the second meeting, compromise na. labor
arbiter will try to settle.
Kung dili gani ma-settle, labor arbiter will say file position
paper. I will give you 30 days. Supposed to be
magdungan mo ug file ana. After filing, tan-awon na
niya. If he think he can rule on it on the basis of position
papers he will issue an order. What is that order?
NOTICE TO THE PARTIES ORDER. This case is
considered submitted for decision.
After that, he must decide the case within 30 days from
the issuance of the said order for submission. Now,
sometimes, even after the issuance of that order, naay
maggukod ug supplemental position paper. Pakapin na
position paper.
The rule should be, the labor arbiter should
recall his order for the submission of the case
and grant the party time to submit counter-
answer for the supplemental position.
In this case, gitugutan niya ang isa ka party but
wala niya tagai ug copy sa other party. Unya
ang basis sa iyang decision, position paper sa
both parties ug katong pahabol na supplemental
position paper. Walay due process ana. You
have to allow the other party time and
opportunity to refute the argument.
Austria vs. NLRC
310 SCRA 410 [1999].
Now, an illegal dismissal complaint filed by the pastor
against the 7th day Adventist Mission corporation in view
of the principle of separation of church and state. pastor
siya. Apparently, this pastor has a contract with the
church that he would be a pastor for 3 years.
Before the expiration of the contract, he was just
removed and transferred without contract. So he sued
the Adventist Mission Corp. Can the latter claim the
principle of separation of church and state and move for
dismissal?
NO! What is involved here is the relationship of
the church as an employer and the minister as
an employee. It was a contract.
The minister was not excommunicated or
expelled from the membership of the church,
but was terminated from employment. The case
does not concern an ecclesiastical or wholly
religious affair as to bar the state from taking
cognizance of the case. naa may contract.
Illustration: Kung pari ka dira sa San Pedro. This priest
contracted marriage. The one who officiated it was his
friend who was also a priest. Bishop excommunicated the
2 priests. They filed with the labor arbiter an illegal
dismissal complaint. The defense of the bishop is
separation of church and state.
SC says CORRECT. Exommunication is a
violation of the laws of the church.
Here, in the 7th day adventist, there was a contract and
the violation is the contract.
Ilaw at Buknol ng mga Manggagawa vs. NLRC
299 SCRA 536 [1993].
Now, here is a complaint filed by 2 union members
against the employer and the complaint is for illegal and
III Manresa 2014-2015
exhorbitant deductions and they impleaded the union
together with the union an illegal expulsion. Does the
labor arbiter have jurisdiction?
NO BECAUSE THE ESSENCE OF THIS
COMPLAINT IS INTRA-UNION DISPUTE.
Clearly this is an intra-union dispute between
the union and the union members.
It falls under the original and exclusive
jurisdiction of the BLR and Labor Relations
Division of the Regional Office.
Marino Jr. and UST Facuty Union
January 31, 2005
Please keep in mind that the BLR has no
jurisdicition to award damages.
Mag-away ang duha ka union, unya this 1 faction says
we suffered damages. Gi-ransak among office by the
other faction. Nawagtang ang kwarta ug mga furniture.
SC says, unlike the NLRC which is explicitly
vested in the jurisdiciton of claims for other
forms of damages, the BLR IS NOT
EMPOWERED to adjudicate claims of such
nature arising from intra or interunion dispute.
Thus, damages that resulted from padlocking of
union offices by other faction are under the
jurisdiction of the REGULAR COURTS.
The conflict as to who is the rightful set of
officers to govern the union belongs to
JURISDICTION OF BLR.
CONCLUSION: So, file ka una sa BLR paghuman sa BLR,
adto naka mudagan sa regular courts for damages.
TERMINATION LAW
Termination is part of labor standards module so the
concentration of this notes are THE CAUSES OF
TERMINATION NOT FOUND IN THE LABOR CODE
because there are many
So I advise that you go to the labor code commentaries
on termination causes dismissals and authorized causes
under the labor code and supplement it with these laws.
(hand out ni father)
There are only 3 questions that will be asked in
termination?
1. Is there is substantial cause?
2. Is there procedural cause?
3. Is the dismissal or termination proportionate to
the cause?
So all termination cases those are the 3 questions that
you ask. Now there is no procedural cause, in other
words you do not follow the procedure outlined under the
labor code.
There are two types of procedure.
1. There is a procedure for dismissal
2. And a procedure for authorized cause
If you do not follow you will be fine but the dismissal or
termination is effective provided there is a cause,
now if there is no substantial cause, there is no
culpability on the part of the EE, or
there is no authorized cause, authorized cause is
neutral to the responsibility, then the dismissal
or termination is illegal then there has to be
reinstatement.
So there are different rulings as to the so called
reinstatement pending appeal.
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The moment you have a ruling from the labor arbiter

relating to illegal dismissal
the ER appeals to the NLRC, the ER has already
the obligation to reinstate the EE either actual
reinstatement or payroll reinstatement.
If the NLRC reverses the labor arbiter now that
means that he can stop paying or
o if he is actually reinstated he cannot
dismiss him since the decision is not
yet final if he appeals to the CA,
o If it is payroll reinstatement he can
stop paying, that is the new rule now,
it is all discussed here, I will give you
this 37 pages.

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