LABOR RELATIONS FINALS

ABBV: GENERAL RULE: EE may exercise right of self-organization or

join or refrain from joining. There is no law which compels him
LLO – legitimate labor organization
to join a labor organization
CEBA - certified exclusive bargaining agent / certified bargaining EXCEPTION: when there is a union security clause/closed shop
union agreement in the CBA
CE – certification election - The EE’s freedom is regulated or withdrawn by
operation of law
BLR – Bureau of Labor Relations
- There is no abridgment of freedom of association
VA – Voluntary Arbitrator here; not constitutionally infirm
GM – grievance machinery - This in fact strengthens the policy of the state to
promote unionism
ULP – unfair labor practice
- In one case; it was held that the union security
LMC – labor management council clause is the most prized achievement of a union
since solidarity and unity is promoted

TOPIC 12: RIGHT TO SELF-ORGANIZATION

What is unionism? What is its advantage? EXCEPTIONS TO THE EXCEPTION: even if there is a union
security clause, an EE can still not be compelled to join a union
 It is more effective to collectively bargain for the when:
employees rights such as salary increase
 The concept is that a legitimate labor organization speaks 1. If employee is a member of a religious organization which
for the group prohibits EE from affiliating with any labor organization
 This is guaranteed under the Constitution then this right prevails over the closed-shop provision
-freedom of religion superior to CONTRACTUAL RIGHTS
(sa orals, Atty asked if freedom of religion is superior to
RIGHTS GUARANTEED UNDER THE CONSTITUTION
freedom of association. He did not answer but I believe as
1. Right to self organization stated by Azucena, it is superior to contractual rights which
- To join, assist and form labor organizations pertains to the closed-shop agreement. This superiority
2. Right to collective bargaining does not refer to the freedom of association)
3. Right to lawful and peaceful concerted activities -Right now, Iglesia already allows it members to join labor
- Ex. Strikes and lockouts organizations but not to join strikes
2. If, at the time of the signing of the CBA, EE is already a
Reason for the guarantee: to PROMOTE unionism member of another labor union ( Art. 248)
- another union means not the union which benefits from
the closed-shop agreement
GUARANTEED UNDER:
3. When it is expressly excluded in the CBA
1. Constitution
- Articles 3 and 13 4. Confidential EEs cannot join union
2. International law
- they are considered excluded
- ILO Conventions 87 and 98
- Became our law because of doctrine of incorporation - BPI case (???)
3. Statutory law
- Labor Code, PD 442, took effect Nov. 1, 1974
3 TIERED CATEGORY OF EES
- Specifically:
a. Right to self-organization – Art. 243 1. Rank-and-file
b. Right to collective bargaining – Art. 234 and 244 - The function is clerical in nature or routinary
c. Right to lawful and peaceful concerted activities – - They have no independent judgment
Art. 263 2. Supervisory EEs
4. Implementing rules and regulations 3. Managerial EEs
- DO 40-03 AS AMENDED  Managerial EEs – (Art 212) one who is vested with powers
- Latest: DO 40-H-13 S. 2013 or prerogatives to lay down and execute management
policies and/or to hire, transfer, suspend, lay-off, recall,
discharge, assign or discipline EEs
Freedom of association is only exercised for purposes not
a. Top management
contrary to law. It is broader than right to self-organization.
b. Middle management
TWO CONCEPTS: c. Front-line management
1. Liberty or freedom – to act as you please without restraint  Supervisory EEs – (Art 212) are those, who, in the
2. Power to join or not to join – freedom to determine your interest of the ER, effectively recommend such
choices managerial actions if the exercise of authority is not

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 merely routinary or clerical in nature but requires the
use of independent judgment
 the recommendation must be: discretionary or
judgmental; independent; effective
 the supervisory managers are also managers but for
purposes of labor relations, they are classified
differently
WHO AMONG THOSE EEs ARE QUALIFIED TO JOIN, ASSIST AND
FORM LABOR ORGANIZATION (LO)?
1. Rank-and-file EEs
2. Supervisory EEs
 The managers are absolutely prohibited
 LABOR ORGANIZATION – (IRR) any union or association of
EEs which exists in whole or in part for the purpose of
collective bargaining, mutual aid, interest, cooperation, or
other lawful purposes
WHO AMONG THEM ARE DISQUALIFIED?
1. Managerial EEs
2. Rank-and-file but confidential EE
3. Supervisory but confidential EE
 Labor Code expressly and ABSOLUTELY prohibits managerial
EEs from joining, forming, assisting LO. For CONFIDENTIAL
EEs, there is NO EXPRESS PROHIBITION
 REASON: Conflict of interest
WHO ARE CONFIDENTIAL EEs?
(p.282 Azucena) According to a case decided by the SC,
confidential EEs are those who assist and act in a confidential
capacity to or have access to confidential matters of, persons
who exercise managerial functions IN THE FIELD OF LABOR
RELATIONS (Philips Industrial Development vs NLRC)
The Labor code does not expressly prohibit confidential EEs
from joining, assisting or forming LO. The basis is in the
DOCTRINE OF NECESSARY IMPLICATION.
They are prohibited for the same reason – conflict of interest.
Managerial EEs are absolutely prohibited. The supervisory EEs,
however, are relatively prohibited because they are allowed to
join, assist, form their own union provided they do not join the
rank-and-file employees. Why? CONFLICT OF INTEREST
2 AREAS WHERE CONFLICT OF INTEREST MAY ARISE
1. Area of discipline
- It is the supervisory EE who disciplines the ranl-
and-file EEs
2. Area of collective bargaining
- What could happen is that the confidential EE can
serve as a SPY
WHAT ABOUT ALIENS?
 Aliens can be EEs in the Philippines if they have a valid
ALIEN EMPLOYMENT PERMIT
PROHIBITIONS
1. Managerial alien EE – absolutely prohibited
2. Supervisory alien EE
- Art. 269: under this article, they can only JOIN
AND ASSIST
- They cannot FORM LO
- There is the same restriction to confidential alien
EEs; still disqualified
3. Rank-and-file alien EEs – only join and assist an LO
REQUISITIES WHEN ALIEND CAN JOIN AND ASSIST
1. The alien is employed/working in the Philippines
2. He has a valid alien employment permit issued by DOLE
3. Nationals of a country that grant the same rights /
reciprocity rule
4. His country is a signatory to ILO 87 and 98
- ILO 87 refers to right to organize
- ILO 98 refers to collective bargaining
- Thus, aliens are eligible to JOIN and ASSISST LO
subject to restrictions
FORMING A LABOR UNION
1. Registering as an independent union
2. Creation of an unregistered union as a local/chapter
A. DO 40-03 as amended; Rule 3 sec 2 REQUIREMENTS in
REGISTERING AS AN INDEPENDENT UNION
1. Name of the applicant labor union, its principal address,
the name of its officers and their respective addresses,
approximate number of EEs 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
- So they have to elect set of officers
- Qualifications to be an officer:
a. Membership in good standing in the union
b. Does not belong to a subversive organization or
who is engaged directly of indirectly in any
subversive activity (Art 241, E, LC)
c. Not convicted of a crime involving moral turpitude
Art 241, F, LC)
- Ex. Estafa. Is BP 22 a crime involving moral
turpitude? (I will include this in the finals ha!
Example I will say here is an EE who wants to
be voted upon but convicted of BP 22.
Qualified?)
2. Minutes of the organizational meeting and the list of EEs
who participated in the said meeting
3. Names of all its members comprising at least 20% of the
EEs in the bargaining unit
BARGAINING UNIT - Refers to a group of EEs sharing
mutual interest within a given ER unit, comprises of all or
less than all of the entire body of EEs in the ER unit or any
specific occupational or geographical grouping within such
ER unit (IRR)
- There can be 2 or more bargaining units based on the
definition
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 - Ex. Rank-and-file bargaining unit, supervisory bargaining
unit.; no managerial bargaining unit
- To organize, recruit at least 20%. SO if there are 1,000 EEs,
recruit 200 EEs to form an independent union
- Is it accurate to say there can be 2 or more unions in the
rank-and-file? YES even if they belong to the same
bargaining unit since the rules only require 20%
- But for purposes of being certified, there only has to be
one bargaining agent; they have to contend among
them who would be exclusive bargaining agent
- Ex. PAL has many unions like pilot union, steward union
- 20% requirement is very liberal
4. Annual financial reports if the applicant has been in
existence for one or more years
5. Applicant’s constitution and by-laws , minutes of its
adoption or ratification, and the list of members who
participated in it
- The constitution defines the rights and obligations,
general principles, philosophy
- By-laws give the specifics such as internal management,
schedule of meetins, etc.
- Qualifications for unio membership can be found in the
constitution
RATIFICATION OF CONSTITUTION and BY-LAWS
 By a majority of members of a union; so the 20%
requirement is critical here
 Agency to approve application as independent union:
BLR
- If denied by BLR, appeal to SOLE within 10 days
- From SOLE: no appeal. The remedy is Rule 65 to
CA
- From CA, Rule 45 to SC
B. CREATION OF UNREGISTERED UNION AS LOCAL/CHAPTER
 Importance of registering
1. To make the union legitimate and for it to acquire legal
personality
2. To acquire and exercise the rights of a legitimate labor
union
 If unregistered, it is NOT ILLEGAL. It simply cannot exercise
the rights of a legitimate LO. It is not illegal because we
have freedom of association
 LEGITIMATE LABOR ORGANIZATION – refers to any labor
organization in the private sector registered or reported
with the department of labor and employment and
includes any branch or local thereof (Art 212)
2-FOLD PROCEDURE in CREATING A LOCAL/CHAPTER
1. Affiliation of independent union with a national
union/federation
2. Direct creation of a local/chapter through chartering
FEDERATION/NATIONAL UNION
Refers to a group of legitimate labor unions in private
establishment organized for collective bargaining or for dealing
with ERs concerning terms and conditions of employment for
their member unions or for participating in the formulation of
social and employment policies, standards and programs,
registered with the Bureau in accordance with Sec 2-B of these
rules (IRR)
2 FOLD PURPOSE OF JOINING, ASSISTING, FORMING UNION
1. Collective bargaining
2. Mutual aid and protection
REQUIREMENTS OF DIRECT CREATION OF A LOCAL/CHAPTER
THROUGH CHARTERING
1. Who creates? The federation or national union
2. How many? At least 10 legitimate LO (IRR)
Ex. Think of 10 banks – RCBC, UnionBank, Metro Bank,
China Bank, Citibank… etc.
- Asian Development Bank – BAWAL! This is an
international organization, not just a bank
- Allied Bank – now it is PNB
- You need at least 10 legitimate LO. SO you have to
organize the unions in each of these 10 banks to form
a federation
SIMPLE SUMMARY OF STEPS by ATTY JMM:
- Get 20% of the number of employees of each bank to form
a union; have each union register as an independent union
or create a local chapter; have each union be made the sole
and exclusive bargaining agent in each of the
establishments; organize these unions; now you can apply
as a federation
- There is a bigger scope here
Ex. You have a total of 20,000 EEs, then you get them to
pay 100php union dues each month. That’s a big amount
- Important requisite: AT LEAST 10 LEGITIMATE LO
TRADE UNION is bigger than a federation.
 Can trade union create a local/chapter?
NO. The law does not mention such creation. So we
cannot create a new rule. The reason is very simple
HOW IS A LOCAL/CHAPTER CREATED?
 By the issuance of a charter certificate by the national
union/federation
 It is created upon issuance
 To be created as a local/chapter, it is not required that you
meet the 20% requirement of EEs in a bargaining unit
 You can have less than 20%. The reason is to encourage
affiliation
 LAW: Only independent union required to have a minimum
of 20% EEs
 So it is easier to create a local/chapter/chartered local
 No need to submit names of members. It is not provided
for under the law (Art. 234-A). This is unlike the creation of
an independent union which requires 20% of the EEs, that’s
why there is a need to disclose the names so the Bureau
can count
BARGAINING UNIT
Refers to a group of EEs sharing mutual interest within a given
ER unit, comprises of all or less than all of the entire body of EEs
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in the ER unit or any specific occupational or geographical
grouping within such ER unit (IRR)
DETERMINATION OF BARGAINING UNIT
1. Mutuality of interest
- Refers to terms and conditions of employment
- Ex. Teachers. , or rank-and-file EEs, or non-academic EEs
of a school
2. Will of the EEs (Globe doctrine)
3. Prior / previous bargaining history
In school, we have rank-and-file bargaining unit, academic
teaching and non-teaching personnel.
They are not in the same bargaining unit because they have
different interests. But what if they decide to go together
because according to number 2, will of the EEs, they can decide
to go together?
Still no, because they have different interests.
IMPORTANCE
Why is it important to determine the bargaining unit?
So that in a petition for certification election, the Med-
arbiter can determine easily
Ex. The EEs are mixed in a bargaining unit. The med-
arbiter has the jurisdiction and power to determine if
you are representing the appropriate bargaining unit
Med-arbiter also has the power to order the mixed EEs to
separate from each oter and hold separate elections
because they should belong to different bargaining units
LOCAL/CHAPTER
 It is easier to create a local/chapter because the
requirements are less stringent. Government made it
simpler to encourage unionism.
 A local/chapter is issued a charter certificate but it also has
to submit other requirements for it to acquire rights of a
legitimate LO. Here, you will only need to select officers,
get a charter certificate
 RULE OF CONSTRUCTION: liberally in favor of the STATE
 the Bureau of Labor Relations can also cause te
cancellation of certificate of registration
MEMBERSHIP IN A UNION
 Qualification: an EE of such establishment
 Qualification to be an OFFICER
1. Membership in good standing in the union
2. Does not belong to a subversive organization or who is
engaged directly of indirectly in any subversive activity
(Art 241, E, LC)
3. Not convicted of a crime involving moral turpitude Art
241, F, LC)
 The second qualification of not belonging to a subversive
organization, is that still applicable? NO
 Why is It included there? Because during the time of
Marcos, they were afraid that unions might be used to
overthrow the government so they placed that provision in
the Labor Code
 Do we still have anti-subversive law? No (p.36 Spectra)
 Term of office: 5 years (Art 241, C)
 Constitution and by-laws can also elaborate duties and
rights since the law only provides for the legal duties
TO REGISTER AS INDEPENDENT UNION
 Submit documents containing membership, principal duties
 Pay UNION DUES
- Reason behind the authority to collect union dues:
principally for existence and survival of the union
- How much? No standard rate. It depends on the industry
where you belong
CONDITIONS: must not be arbitrary, excessive,
unreasonable
- It is the union that fixes the amount and also the one to
collect
MANNER OF COLLECTION
1. DIRECT COLLECTION – no need for written authority of
the EE
2. CHECK-OFF
-need written authorization of member OR the method is
recognized by the ER (see Art 113)
- so if it is recognized in the CBA, the union can still
collect
ACCOUNTABILITY OF UNION
1. The union must record the collection / amount collected
as union dues
2. Observe Section 241 of LC
- If the union collects arbitrary dues, the member can
complain in the BLR. It is an INTRA-UNION DISPUTE
which is subject to SENA
CANCELLATION OF UNION REGISTRATION
 Jurisdiction with the BLR
 Grounds for cancellation (Art 239):
1. Misrepresentation, false statements or fraud in
connection with the adoption or ratification of the
constitution and by-laws or amendments thereto,
the minutes of ratification, and the list of
members who took part in the ratification
2. Misrepresentation, false statements or fraud in
connection with the election of officers, minutes
of the election of officers, and the lit of voters
3. Voluntary dissolution by members
- 2/3 votes of general membership of the union
- Requisites
a. Must hold a general membership meeting
for the purpose of dissolving the union
b. 2/3 votes must be obtained
c. Submit to BLR an application to cancel on
the ground of voluntary dissolution
 After dissolution, the LO ceases to be one. The
members lose their membership as a
consequence
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  If application for cancellation denied,
REMEDIES:
a. Appeal to SOLE
b. Petition for certiorari, Rule 65 to the CA
c. Appeal by Certiorari, Rule 45 to SC
08/29/2014
How to form a union?
1. Register as independent union
2. Create a local/chapter through federation or national union
2-fold procedure
a. Direct creation of local/chapter through chartering
- How is this done? Federation/national union
issues a charter certificate (not certification)
- If the federation/national union revokes the
charter certificate, the union loses its personality
since they derive their personality from the
fed/national union
- The union here is an unregistered union, but they
become the local of that certain fed/national
union
- The difference of this from the second mode
because in the second, the union just wants to
strengthen its bargaining power
- Now if this union is created and registered, it
submits requirements, it now acquires legal
personality. It can now exercise rights of a
legitimate labor organization (LLO)
b. Affiliation of independent union with a
federation/national union
- Here, the union wants to strengthen its bargaining
power by affiliation
- Ex. Alpha Phi Omega Cebu Chapter, American
Chamber of Commerce Cebu Chapter
- But they exist as a union on their own
TOPIC 13: RIGHTS OF AN LLO
What are the rights of an LLO? Art 242, p.22
1. To act as representative for members for purposes of
collective bargaining
- Members here refer to the members of the
bargaining unit, whether union member or not
- Bargaining unit is composed of EEs, union
members/not
- Ex. Of non-union members: confidential EEs, or
those who opt not to be members of the union
- How about Lex Circle? Lex is unregistered, it
cannot transact business; since it has no
personality, its officers will be the ones held liable
in case damage is done unlike a union which has a
separate and distinct personality; I cannot sue Lex
Circle, I should sue the officers composing it
- What does to act as representative for members
mean? Members are the principal; the LO is the
AGENT
- For purpose of collective bargaining only? Can a
union file a suit for illegal dismissal against the
company in behalf of its member- EE?
Ex. X union in behalf of Y, for illegal dismissal
YES, it can be done
- What kind of suit is this? REPRESENTATIVE SUIT,
not a class suit. It can file because the union has a
separate personality on its own, but the consent
of the illegally dismissed member is needed
- Actually the EE can file on his own but it’s better
to use the union as agent, the EE is still the real-
party-in-interest
- Advantage of using the union as agent: the union
will use union funds to litigate the EE’s case. It has
money because it collects union dues
2. To be certified as exclusive representative of all EEs in an
appropriate bargaining unit for purpose of CB
- It must be certified to EXERCISE right to CB
- Mere LLO cannot exercise CB without being
certified
- Ex. In an establishment with 100 people, they
organized an independent union consisting of 20
of all workers. They obtained registration. Can
they now exercise CB and demand to make a CBA?
NO
They have to be certified first. 2 ways of certification:
1. Voluntary recognition
2. Certification election
- Is consent given here in any of these 2 ways? Do you
obtain consent of the workers in any of these ways?
(YES)
- How many for consent to be obtained?
a. Majority of valid votes cast (certification election)
b. Majority of the members of bargaining unit
- In both cases, consent by the workers is given for you
to be exclusive bargaining agent (CEBA)
- LLO has to be certified before it can exercise right to
CB
- REASON: it should enjoy the vote of confidence or the
will of the majority
3. To be furnished by the ER, upon WRITTEN REQUEST, with
its annual audited financial statement, within 30 calendar
days from the date of receipt of the request……
- The union here also needs to be certified before it can
demand financial statements
4. To own property; sue and be sued
So those are the rights of an LLO. A mere LO cannot exercise
those; because registration ahs a 2-fold purpose
1. LO can acquire legal personality
2. LO can acquire rights of an LLO
If there is not registration, the LO can still exist but it can’t
exercise the rights, and it doesn’t have legal personality
2 MODES TO BE CERTIFIED AS EXCLUSIVE BARGAINING AGENT
1. Voluntary recognition
- This mode is actually not provided by law but created by
virtue of D.O./IRR
Requisites:
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 1. A joint statement under oath of voluntary recognition
attesting to the fact of VR
- Done by ER and representative of union
2. Certificate of posting of the joint statement for 15
consecutive days in 2 conspicuous places in the
establishment/ bargaining unit (BU) where union seeks
to operate
3. The approximate number of EEs in the BU, accompanied
by the names of those who support the VR comprising
at least a MAJORITY of the members of the BU
- so if majority, the majority of 100 is 51. At least 51 to
sign joint statement and indicate the names of those
people, and this must also be posted
4. A statement that the Labor union is the only LLO within
the BU
- So this is only applicable if you are the only LLO
- If there are 2/more, there has to be certification
election; the workers must choose who between
them should be CEBA
- If you are only one, you should at least get a majority
of support to be CEBA
- But the ER also has to give consent. So even if you
already got the majority of the EEs, if ER did not
consent, no CEBA. There has to be a joint
undertaking
- What if the ER says NO? what then is the union’s
choice/option? File a petition for certification
election. The union can get the mandate through
this second process
2. Certification election (CE)
- Definition: Refers to the process of determining
through secret ballot the sole and exclusive
representative of the EEs in a BU for the purpose of
CB/negotiation ordered by DOLE
- NOT ADVERSARIAL PROCEEDING; no complainant and
respondent
- How did the Supreme Court describe this process? It is
merely a fact-finding investigation and non-
adversarial proceeding to ascertain the desire of the
EEs on matters of representation
- JURISDICTION for certification election: MED-ARBITER
OF DOLE
A. UNORGANIZED ESTABLISHMENT
i. Who may file?
a. LLO
- Petitioner must be an LLO
b. When requested to bargain collectively, the ER
- Here, the LLO must request
- Once ER has filed, what now is his role? NO
ROLE, just a mere by-stander
- No legal standing to participate; the most it
can lawfully do is to FILE THE PETITION
c. the fed/national union which issued the charter
certificate
- This is important. They can file in behalf of a
local/chapter since not all unions are created
as an independent union. Most are created
through chartering because it’s difficult to
obtain 20%
- Here, there must be proof that it issued the
charter certificate on behalf of the
local/chapter
- PRINCIPAL: local/.chapter; AGENT: federation
d. Local/chapter itself which has been issued a
charter certificate
- But in reality it is the fed/national union which
files to show its power and also to give
support
- This is because local/chapter derives its
personality from the fed/national union
ii. When may petition be filed? ANYTIME
- Why? Because there is no existing CBA and CEBA so
you are free to file anytime
iii. Where? Where’s the venue?
- SKIPPED BY SIR but in the IRR: Regional office which
issued the petitioning union’s certificate of
registration/certificate of creation of chartered local
- Sir: But I thought jurisdiction is with Med-arbiter of
DOLE? Why is it now you file with regional office of
BLR? It refers to BLR there right because it’s the one
that issued the certificate? WHY? Skip ko na to!
- TN: Sir gave a hint though that it is with the Regional
office of the BLR
iv. Contents of petition (p.48 Spectra)
1. Name of petitioner, it’s address and affiliation,
date, number of certificate of registration
2. Name, address, nature of ER’s business
3. Description of BU
4. Approximate number of EEs in the BU
5. Names and addresses of other LLO in the BU
6. Statement indicating any of the ff:
a. That the BU is unorganized/there is no
registered CBA covering the EEs in the BU
- Why? If there is CBA, there is the
CONRTACT BAR RULE
- Here, it has to be unorganized
establishment with no registered CBA
- There is no need to disclose in the petition the
names of the members of the petitioning union
- Why? To avoid interference on the part of the ER;
he might convince them to quit or withdraw the
petition
- Who signs petition for certification election?
President of the union
- Does it require certificate of non-forum shopping?
No because it is not adversarial
v. Posting and Preliminary Conference
- Now the RD of DOLE will receive the petition and
assign it to Med-Arbiter or raffle it if there are
many Med-Arbiters
(so unsa man, diri ka mu-file sa DOLE?! Libog oy!)
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- Is there a need to post the petition? YES
“A copy of the NOTICE of preliminary conference
AND PETITION for CE shall be posted in at least 2
conspicuous places in the establishment”
- So the Med-Arbiter will issue notice and this will
be posted along with the petition
- Will the petition be served on the ER? YES, 258-A
- So in the preliminary conference, there will be
determination of date, place time of CE. What are
the 3 important things to be determined?
1. The scope of the BU to be represented
2. Contending labor unions
3. Other matters relevant for final disposition of
the case
- Why is there a need for posting? This is notice to
the EEs of the INTENT of the LLO to represent
them
- Under the Labor Code, what is the role of the ER?
258-A, a mere bystander. Her has very limited
involvement:
1. The right to be furnished a copy of the
petition
- Why need to notify him? He also has the
right to know who he’s dealing with
2. Providing the list of EEs in the unit for pre-
election
- Why him who needs to submit? Because
it is only him who has the complete list
- Failure to APPEAR, not a ground to deny but only a
waiver of right to be heard
- MA will now forward to RD who will issue the
order then assign an ELECTION OFFICER to
execute the order
- Election officer is not the same as the MA. MA is
almost always a lawyer but Election Officer is not
necessarily one
- Election Officer will give notice of pre-election
conference to PETITIONING UNION AND ER
- Since the ER was notified, he has the right to be
present during this conference but not to
participate
vi. Decision
- After the preliminary conference is concluded, the
MA will render a DECISION, which means he will
decide whether to grant/not the petition
- Grounds of denial of Petition for CE in UNORG
EST
1. The petitioner is not listed in the
Department’s registry of LLO
- Because it is an LLO which can file
- Who keeps records? The BLR keeps
registry or record of unions. BLR is part of
DOLE, also the Med-Arbiter
2. The petitioner’s legal personality has been
revoked, cancelled with finality in accordance
with rule XIV of the rules
- This means registration has been revoked
with FINALITY
- So if there is pending petition for
cancellation, this is not a bar for petition
of CE because the union here is still
considered an LLO; it still enjoys legal
personality/standing
- Then if no grounds at all for denial exist,
the Med-arbiter has NO CHOICE BUT TO
GRANT PETITION
- Is the order granting CE appealable? NO
- If it is denied by the Med-arbiter, it is now
appealable to the SOLE, Art 259
vii. Pre-election Conference
- During pre-election conference, set mechanics
and determination of
1. Date, place, time of CE; shall be on a regular
working day within the ER’s premises unless
circumstances require otherwise
- Election should not be on a holiday
because then there’s no work, no EEs
- This is to ensure the success of the CE
- ER can’t declare own holiday to defeat
the purpose; this is illegal
2. List of eligible and challenged voters
- Here we have the inclusion-exclusion
proceeding which is part of pre-election
conference
- Does Med-Arbiter exercise quasi-judicial
power? YES, but the Election Officer has
NO quasi-judicial power
- This item number 2 is a major one; this is
based on the list of EEs submitted by ER
- Place: it’s the place of
establishment/work
- This is to ensure the success of the CE;
they might have a hard time looking for
transportation
- EXC: Unless circumstances require
otherwise; like security is bad in the
workplace, or there is a threat to life or
limb
3. Number and location of polling places or
booths and the number of ballots
- There is no signing of ballots here yet
4. Name of watchers or representatives
5. Mechanics and guidelines of CE
- Need to for notice, posting? P.57 The EO will issue
and require the posting of the notice of the
conduct if the CE
- Purpose of this posting is for the EEs to be
informed; THIS CANNOT BE WAIVED
viii. Election
a. Date and time: On the date and time of
election, there will be an inspection of the
polling place
- Polling place is the venue; it is broader than
the polling booth
- Ballots must be in English, Filipino or dialect
known to the voter
7
 - Put the appropriate mark there in the ballot
because if you put a smiley, it will strain the
ballot. Either party is prejudiced (sec 9)
- Ballot box has to be locked; it’s where you
drop your ballot
- Now, the votes are cast
Before a vote is cast, it can be challenged. Not
after because it will no longer be identifiable
which ballot is supposed to be challenged
b. Grounds for challenge
1. There is no ER-EE relationship between
voter and company
2. Voter is not a member of the appropriate
BU which petitioner seeks to represent
- Why is there a challenge? Because the
voter is not entitled to vote
c. Who is a voter
- Who is a voter? Article 212 (F) – this is the
LEGAL BASIS, not the DO, sec 5 although it
supplements (p.59)
212: EE includes any person in the employ of
the ER. The term shall not be limited to the
EEs of a particular ER, unless the 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 he has
not obtained any other substantially
equivalent and regular employment
d. Conditions for an EE dismissed to vote:
1. He filed a complaint
2. No final judgment yet
- This is intended to protect the union. SO
without a complaint, you won’t be allowed to
vote. You’re not eligible
e. DOUBLE MAJORITY RULE
1. To have a valid election, majority of the
eligible voters must cast their vote
2. To win the CE, union must obtain majority of
the VALID VOTES cast
- In determining valid CE, do we include
strained ballots? (p.58)
In determining whether or not there is a valid
election, you will include. However, in
determining whether the union will be
certified as CEBA, you have to exclude the
spoiled ballots because they are not valid
votes cast
f. Failure of election
Less of the majority of the eligible voters cast their
votes. However, they can still hold another
election after
g. DISTINCTION BETWEEN MED-ARBITER AND
ELECTION OFFICER
- Election officer has no quasi-judicial power, but
med-arbiter has quasi-judicial power when he
presides over election proceedings
- ELECTION OFFICER can only rule ON-THE-SPOT
QUESTIONS during the election proper
(SIR: I love this topic on CE, so I focus on this.
Master the procedure!)
“Sec 11. The election officer shall rule on any
question relating to and raised during the conduct
of the election. In no case, however, shall the
election officer rule on any of the grounds for
challenge specified in the immediately preceding
section”
 “immediately preceding section” refers to
challenge of votes
 Example: the voting was scheduled for 8
AM – 5 PM and the union wants to end it
at 3 PM. The election officer can rule on
this
h. CHALLENGE OF VOTES
- not ruled upon by the election officer but by the
med-arbiter
- 2 grounds:
1. No ER-EE relationship
2. The challenged voter is not an eligible voter
- The Election officer has no authority to proclaim
the results even if there is no protest filed and
certify the winner. He is only limited to
transmitting to Med-arbiter the records
- If there is a formalized protest within 5 days, Med-
Arbiter will rule on it. He can’t certify yet. This is
pursuant to his quasi-judicial power which is to
rule first on the protest or challenge, then he can
now proclaim and certify
- Who makes a PROTEST? Any party who thinks
there is a violation of procedure
- The protest must be recorded in the minutes of
election proceedings to be entertained and must
be formalized in writing within 5 days (sec 12)
- The ruling on the protest is embodied in the order
on the results of election
ix. Canvassing and calculation of votes
SPOILED BALLOTS:
When is a ballot considered spoiled?
 Placing any unnecessary markings in the
ballot.
- After the election, there will be a closure of the
election; the canvassing of the votes will follow.
- To have a valid election, what is the prescribed
number of votes?
 Majority of the eligible voters must have cast
their votes.
- What if this will not be achieved?
 Election officer will declare the failure of
election.
- To be a certified bargaining agent, how many
votes must be obtained?
 Majority of the valid votes cast.
- In determining if there is a valid election, COUNT
THE SPOILED BALLOTS
8
 - In determining if the union is the certified
bargaining agent, DON’T COUNT THE SPOILED
BALLOTS because a spoiled ballot is not a valid
vote that was cast.
x. Proclamation and certification of result of the
election
- Who shall proclaim & certify the result of the
election?
 SEC. 20 of Rule 9. The MED-ARBITER.
- Med-arbiter can proclaim on 2 instances (sec 19):
1. No protest was filed or, even if one was filed,
the same was not perfected within the 5-day
period for perfection of protest
2. No challenge or eligibility issue was raised or,
even if one was raised, the resolution of the
same will not materially change the results of
the elections
xi. Protest
- If there are any irregularities, there can be protest.
What is the rule in making protest? Where can I
make my protest?
 Before the election officer and should be
reflected in the minutes of the election. The
election should not stop just note the protest.
 This must be formalized in writing within 5
days from the close of the election
proceedings in order to pursue the protest.
- Who will rule the protest?
 Med-Arbiter
- In what instance, may the med-arbiter not
proclaim or certify the result of the election?
 SECTION 20 rule 9
1. When there is a formal protest
2. Challenge or eligibility issue was raised and it
will substantially or materially change the
result of the election.
Is this order, certifying the election appealable or not?
 Yes. Art. 259 of the Labor Code.
 Based on Art. 259, any party to an election
may appeal the ORDER OR RESULTS of the
election
 the first order referred to is the order
granting/denying CE, and the second is the
result of the election
Upon finality of the order, the CEBA can now exercise
collective bargaining. If there is an appeal to the
secretary, will this stop the parties from entering into a
CBA?
 No, it will not stay right to exercise collective
bargaining unless there’s restraining order
from the court (previous discussion, he said
unless SOLE orders otherwise. Libog napud
ko)
09/05/2014
B. ORGANIZED ESTABLISHMENT
- (sec 1, LL) An organized establishment refers to an
enterprise where there exists a recognized or
certified sole and exclusive bargaining agent
i. Who may file:
- same as that of unorganized
ii. When may it be filed:
- Within the freedom period which is 60 days before
the expiration of the CBA.
- The reason for this is there is a violation of an
already existing CBA. There is no point of certifying
a bargaining unit agent because there is already an
existing one.
iii. Where to file:
- The same
- Jurisdiction: the same
iv. Contents
- Same but add signature of at least 25% of all
employees in the appropriate bargaining unit
v. Posting and preliminary conference
- the same
vi. Decision
Ground of Denial for Certification: (sir: memorize
the grounds!)
a. The petitioner is not listed in the Department’s
registry of legitimate labor unions or that its legal
personality has been revoked or cancelled with
finality. NOT LEGITIMATE LU
b. The petition was filed before or after the freedom
period of a duly-registered collective bargaining
agreement. FREEDOM PERIOD; CONTRACT BAR
RULE
- Term of the CBA is 5 years for representation
aspect. This means you cannot disturb the
incumbent for 5 years except if the rules allow
- So you are only allowed to file before the 5th
year ends or the 60-day freedom period
- If filed before freedom period, it will be
denied because the incumbent CEBA is now
implementing or administering the CBA and
the ER has to faithfully comply with this
implementation
- If filed after freedom period, it will also be
denied because the EEs have already showed
their will during the freedom period
 Petition should be supported by 25% of
all the employees in the bargaining unit
 Unlike in unorg est., there is no support
requirement since you only have to make
the representative of the union sign
 SO if you want to challenge, get 25% of
EEs in the bargaining unit
 Why get 25%?
1. The incumbent enjoys the vote of
confidence
2. There is no urgency to dislodge CEBA
from where it is
c. The petition was filed within 1 year from entry of
voluntary recognition or a valid certification,
consent or run-off election is pending.
CERTIFICATION RULE
- If we allow them to exercise collective
bargaining during this period, there is
interference on the right to collective
bargaining
- The duty to collectively bargain exists; it
9
 belongs to both the ER and CEBA (Art 251)
- If there is no CBA, like in unorg est., the duty
to bargain is in Art. 252 and it means there is
the mutual obligation to meet and convene to
conclude a CBA
- If you (the petitioning union) interferes, this
will unduly disrupt their duty
- If both parties or one does not exercise the
duty, there is liability under the LC and that is
a ULP; it is also a crime
- Law penalizes the parties if they refuse
because they do not give workers their
expected benefits. They voted for you but you
do not do your job! So you can go to jail or
incur liability
d. A duly certified union has commenced and
sustained negotiations with the employer in
accordance with Article 250 of the LC within the 1-
year period referred to above, or there exists a
bargaining dreadlock, which had been submitted
to conciliation or arbitration or had become the
subject of a valid notice of strike or lockout to
which an incumbent or certified bargaining agent
is party. BARGAINING DEADLOCK RULE
- In bargaining deadlock, the parties are
troubled, so industrial peace is the reason
here
- If you file, you will only aggravate the
situation. It will only create trouble
- So let the parties resolve the dispute first
e. In case of an organized establishment, failure to
submit the 25% support requirement of the
petition for certification election. FAILURE TO
SUBMIT REQ.
- Is the order granting or denying the certification
election appealable? To where?
 For organized, appealable to the Secretary of
Labor. Art. 259 of the LC
- What is the effect of the appeal? May it suspend
the conduct of the election?
 It will stay or suspend the holding of the
election.
 Why? Appeal has to be decided first
- This is not the same rule. Had it been an
UNORGANIZED ESTABLISHMENT, it will not stay or
suspend the holding of the election.
- The reason for this because in a organized estab.,
there is an CEBA and there is a CBA. There is
nothing that the workers will lose unlike in an UE
there is still no CBA for the workers.
- Is the order denying appealable? YES
vii. Pre-election conference
- Assignment to the election officer and issuance of
notice pre-election conference and list: same
- conduct of the pre-election conference: same
- ballot preparation? Posting of the notice? Actual
voting? Canvassing? Proclamation & Certification?
Appeal of result of the election?: same
viii. Election
- Same
ix. Canvassing, calculation, proclamation
- Same
OK DONE WITH THE PROCEDURE. NOW YOU HAVE A UNION,
WHICH IS THE EXCLUSIVE BARGAINING AGENT (CEBA)
COLLECTIVE BARGAINING AGREEMENT
- You now have the power to collectively bargain and
negotiate
- How will you initiated this Collective Bargaining and
Negotiation?
 Submit a proposal for CBA to the employer
- How many days should the ER respond to your proposal?
 Not later than 10 Calendar days
- CBA Definition
 Refers to the contract between a legitimate labor
union and the employer concerning wages, hours of
work, and all other terms and conditions of
employment in a bargaining unit (IRR)
- Does the LC provide for the Scope of the duty to bargain
collectively when there is still no prev. CBA? ART. 252 of LC.
- How about if there exist a CBA? Art. 253.
- Duty to Collective bargain belongs to BOTH the ER & the
CEBA
- Is refusal to bargain collectively is an UNFAIR LABOR
PRACTICE
NEGOTIATION:
2 principal features of a CBA
1. Economic Provisions
2. Non-Economic Provisions or Political provisions
a. Union security clause
b. Grievance machinery
Non-Economic Provisions in the CBA:
1. The Union Security Clause
- ‘union security clause’ is a stipulation in the CBA
whereby the management recognizes that the
membership of employees in the union which
negotiated said agreement should be maintained
and continued as a condition for employment or
retention of employment.
- This is for the continued existence of the CEBA
FORMS OF THE UNION SECURITY CLAUSE:
a. Closed shop agreement
- ER will only hire members of a CBU and must remain
a member for continued employment
- Considered as the most prized achievement of
unionism because there is no choice on the part of
any person who wishes to be 
employed but to
become a member of the union. THIS WILL ENSURE
THE SURVIVAL OF THE UNION & WILL PROMOTE
UNITY & SOLIDARITY
- It’s constitutionally valid and will not interfere with
freedom of association because the Labor Code is an
exercise of Police Power, and so the freedom of
association can be interfered with
10
 b. Maintenance of membership clause
1. No EE is compelled to join the union but all
present or future members must as condition of
employment remain in good
 standing in the union.
2. Goes together with the Union Shop in one CBA.
c. Union shop agreement
  In the absence of applicable provision in the collective
- ER may hire persons who are not yet members of
a Collective Bargaining Unit however to continue
with their employment they have to become
members after a certain period.
 be composed of at least two (2) representatives each
- Who will benefit? The CBU because it will add to
the membership. The more members the stronger
the collective bargaining power. Adds members
and compulsory dues to support the existence of
the CBU.
2. The Grievance Machinery in the CBA
- Involves the interpretation or implementation of the
collective bargaining agreement and those arising from the
interpretation or enforcement of company personnel
policies.
- The law is telling the ER and the CBA that if you have any
controversy issue or concern on the implementation and
interpretation of the CBA you have to resolve this in the
grievance machinery first
- This is to ensure industrial peace and harmony.
- The law requires incorporation of grievance machinery in
the CBA. If there is failure to incorporate a grievance
machinery then DO 40-03 will apply
- If not resolved at the level of the grievance machinery, it is
not referred to the Voluntary Arbitrator who is chosen by
the parties (ER and CEBA)
- How about if Labor Arbiter is designated as VA? Yes, the
parties can freely choose anybody, no prohibition
- There can be a panel of VA; so there can be 1 VA or many.
Law doesn’t require a number
- Violation of a non-economic provision in the CBA, does
that constitute Unfair Labor Practice?
 NO. For it to be ULP, the law provides in Art 261 of
the LC it must be a flagrant and or malicious
refusal to comply with the E-C-O-N-O-M-I-C
provisions of such agreement.
 Gross violation of an economic provision to
constitute ULP
 So a violation of a non-economic provision is
addressed as a grievance. Jurisdiction is still with
the VA and not the labor arbiter
09/19/2014
ECONOMIC & NON-ECONOMIC PROVISIONS
- Which has jurisdiction in the enforcement of the CBA when
there is a violation of the union security clause? Who is the
aggrieved party?
 The certified bargaining union. The jurisdiction is first
with the GRIEVANCE MACHINERY
 Section 1. Establishment of grievance machinery. -
The parties to a collective bargaining agreement shall
establish a machinery for the expeditious resolution of
grievances arising from the interpretation or
implementation of the collective bargaining agreement
and those arising from the interpretation or
enforcement of company personnel policies.
Unresolved grievances will be referred to voluntary
arbitration and 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.
- Is there a composition as to what constitutes as grievance
machinery?
bargaining agreement, a grievance committee shall be
created within ten (10) days from signing of the
collective bargaining agreement. The committee shall
from the members of the bargaining unit and the
employer, unless otherwise agreed upon by the
parties. The representatives from among the members
of the bargaining unit shall be designated by the union.
Same section 1 of DO-04-03
- So next incase the case is UNRESOLVED, who now has the
jurisdiction? The Voluntary Arbitrator
- So will this violation of the security clause constitute as an
unfair labor practice? No. because it is not an ECONOMIC
PROVISION. It is a NON-economic provision
- Examples of non-economic provisions
1. Union security clause
- Stipulated by the parties
- If the ER insists on hiring despite a closed-shop
agreement, there will be violation of the CBA
- Jurisdiction will first be with the grievance
machinery, not the Labor arbiter because there is
no ULP. There is only ULP if there’s gross violation
of economic provision
2. Grievance machinery
3. This is not mandated by law as a non-economic
provision but another good example is a no-strike
clause (but technically dili apil sa enumeration)
TERM OF THE CBA:
- TERM OF THE CBA is a NON-ECONOMIC provision
- Under the law, what is the term of the CBA?
 as to representation aspect – 5yrs
 other provisions – 3yrs
- in so far as the economic provision, the common is
provision on wage increases, provision on other leave
benefits. Anything that has to do with money.
- “other provisions” term is 3 years
 So can’t parties stipulate longer than 3 years? It
actually depends on agreement of parties
 so they can be longer than 3 years only that they are
subject to renegotiation not later than 3 years
 this refers to BOTH economic and non-economic
provisions
 even if they are for a 5-year term, they should be
renegotiated not later than 3 years
RATIFICATION & REGISTRATION OF CBA
- REGISTRATION IS NOT IMPORTANT FOR VALIDITY OR
EFFECTIVITY of the CBA. Its only effect is that the contract-
bar rule will not apply
- If contract-bar rule will not apply, the petition for CE can be
filed even outside the freedom period
- RATIFICATION NOT NEEDED FOR VALIDITY of CBA since
11
 the parties (ER and CEBA) entered into a valid contract
- BUT, RATIFICATION IS NEED FOR ENFORCEABILITY
 Thus, there is a need to ratify for CBA to be
effective by majority of all the members of the
appropriate bargaining unit (not majority of
member of union!)
 This is the act of submitting to their approval the
CBA
 If they reject, the CBA US VALID BUT
UNENFORCEABLE
 If unenforceable, the union then cannot collect
union dues since this was not approved; union
dues usually form part of CBA
 Situation: union won as CEBA but members
rejected what the CEBA and ER agreed on. Since
the CEBA is a mere agent of the EEs, it cannot by
its own volition implement. Same goes for the ER
- After ratification, they can now apply for registration of the
CBA
- Where will it be registered? Regional Office which issued
the certificate of registration/certificate
Section 1. Where to file. - Within thirty (30) days from
execution of a collective bargaining agreement, the parties
thereto shall submit two (2) duly signed copies of the
agreement to the Regional Office which issued the
certificate of registration/certificate of creation of chartered
local of the labor union- party to the agreement. Where the
certificate of creation of the concerned chartered local was
issued by the Bureau, the agreement shall be filed with the
Regional Office which has jurisdiction over the place where
it principally operates.
- Multi-employer collective bargaining agreements shall be
filed with the Bureau.
RENEGOTIATION and RETROACTIVITY
- Now we have a valid and binding CBA. The law says it is
valid and binding for 5 years for that representation aspect
 Representation aspect is the identity and majority
status of the bargaining unit and you have to respect
this for 5 yrs.
- Other provisions will depend upon the agreement of the
parties
- But the law says this other provision must be renegotiated
not later than 3 yrs.
- How soon does a renegotiated CBA take effect?
a. If renegotiated within 6 months – retroact to the day
immediately following expiration
b. Renegotiated beyond 6 months – agree or fix the
retroactivity
- Why the difference? Example if there is a wage
increase, it is more favorable to fix the period
- Retroactivity is agreed and most ER apply the
effectivity prospectively, but then deadlock
happens because the CEBA wants to apply it
retroactively
- So they still have to agree otherwise they will have
to submit to grievance machinery or VA
- Basis: Art 253-A
- So if the 3rd yr is on Jan 1, 2017 and they sat down
on the last quarter of 2016 to renegotiate. Apply
the law.
- If they finish the negotiation on February, still
within the 6 month period, so then it will retroact
to Jan. 2 2017.
- “If any such agreement is entered into beyond six
months, the parties shall agree on the duration of
retroactivity thereof.” Why is this so? What is the
purpose of the law of providing for this? Why not just
set a period to when the law should retroact?
 To avoid undue financial burden upon the
employer. Because this may impact the
financial status of the employer. So the
law gives you the chance to agree.
- In case the parties cannot agree, they should
submit it to voluntary arbitration because it
involves enforcement of CBA. Voluntary
arbitration. Or thru the grievance machinery then
voluntary arbitration. There will in that case be an
arbitral award. The mediator will decide for the
parties.
- From the decision of the VA, File a motion for
reconsideration or File a petition for review
under Rule43 with the CA
- Rule 43 for quasi
judicial agencies
- From there, to the SC under rule 45
- A situation wherein the issue arising from
enforcement/implementation of CBA would be
assumed (the jurisdiction) by the SOLE is when the
labor dispute causes a strike or lockout in an
industry indispensible to the national interest. And
it will be the SOLE who will have to arbitrate and
not the VA
- So renegotiate the other provisions. What will be
the term of the other provisions after they have
been renegotiated? Still depend on the parties.
They can fix the term, or change the term
depending on parties. Whatever their agreement
is, they have to undergo another renegotiation
REPRESENTATION ASPECT
- The term is 5 years
- Meanwhile, CBA reached the 5th year, which will now
involve the representation aspect. Will the incumbent
exclusive bargaining agent continue to administer the CBA
after the 5th year? What is the duty of the incumbent
bargaining agent if there is no petition for certification
election within the freedom period?
ART. 256. Representation Issue in Organized
Establishments.
(last sentence) 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."
- Term of office of officers is 5 years, so it coincides with
term for representation aspect
- So this means the right to represent is good for 5 years
- If no petition for CE filed on 5th year, obligation of the ER is
continue to recognize the CEBA. The purpose is to
administer the CBA even beyond 5th year so as to prevent a
vacuum
12

SUBSTITUTIONARY DOCTRINE
- Concept
The "Substitutionary doctrine" provides that the
employees cannot revoke the validly executed collective
bargaining contract with their employer by the simple
expedient of changing their bargaining agent. The new
agent must respect the contract. The employees, thru their
new bargaining agent, cannot renege on the collective
bargaining contract, except to negotiate with management
for the shortening thereof.
The "Substitutionary doctrine" cannot be invoked to
support the claim that a newly certified collective
bargaining agent automatically assumes all personal
undertakings, such as the no-strike stipulation in this case,
assumed by the deposed union.
- Why? The CBA should be respected until expiration. They
have to administer, and not change the CBA. The new CEBA
only steps into the shoes of predecessor and continues to
administer; cannot change it since after all it is only an
agent
- Duty to bargain collectively if there is a CBA found in Art
253: the hold-over principle or automatic renewal : “It shall
be the duty of both parties to keep the status quo and
continue in full force and effect the terms and conditions of
the existing agreement during the 60-day period and/or
until a new agreement is reached by the parties”
GRIEVANCE MACHINERY
- If the parties failed to incorporate in CBA a GM, they
cannot excuse themselves from creating one
- The law now will set up for them through IRR 40-03 sec 1
rule XIX.
- Composition of grievance committee (Sec 1)
 At least 2 representatives each from members of the
bargaining unit and the ER (so at least 4 in all) unless
otherwise agreed by the parties
- How is grievance resolved? (Sec 2)
a. An EE shall present his grievance or complaint orally or
in writing to the shop steward. Upon receipt thereof
the shop steward shall verify the facts and determine
whether or not the grievance is valid
- What’s a shop steward? One who facilitates the
grievances of the union members against the ER
- He is an employee of the ER but appointed as such
by the UNION
- How about if a girl? Stewardess? No, still a shop
steward!
- If he’s illegally removed from OFFICE, it is an intra-
union dispute. There is NO ILLEGAL DISMISSAL
since there is no dismissal from employment (this
is a case decided by the SC ha! Read the cases I
assigned to you! Zzz)
b. If the grievance is valid, the shop steward shall
immediately bring the complaint to the EE’s immediate
supervisor. The shop steward, the EE and his
immediate supervisor shall exert efforts to settle the
grievance at their level
c. If no settlement is reached, the grievance shall be
referred to the grievance committee which shall have
10 days to decide the case
- In CBA, parties incorporate a GM depending on agreement
- If none, they can adopt the one set up by the IRR or they
can use that as their guide
- How important is GM in org est? this can minimize labor
disputes and maintain INDUSTRIAL PEACE
- If not resolved at grievance level, go to the VA
- What if they refuse to submit to GM? There is no ULP since
the GM is not an economic provision. But, there’s still a
violation here of the CBA so they should go to the VA
- VA NOT PART OF NLRC (It’s there in the Revised Guidelines
of Voluntary Arbitration!)
- VA jurisdiction: Art 261 LC
1. Interpretation or implementation of the CBA
2. Interpretation or enforcement of company personnel
policies
- Very long definition of COMPANY PERSONNEL
POLICIES is found in a case (don’t make your own)
- Decided by the Supreme Court (p.510 Azucena):
“They are guiding principles stated in broad, long-
range terms that express the philosophy or beliefs
of an organization’s top authority regarding
personnel matters. They deal with matters
affecting efficiency and well-being of employees
and include, among others, the procedures in the
administration of wages, benefits, promotions,
transfer, and other personnel movements which
are usually not spelled out in the collective
agreements. The usual source of grievances,
however, is the rules and regulations governing
disciplinary actions.”
- If still unresolved, VA is a QUASI-JUDICIAL
INSTRUMENTALITY so remedy: PETITION FOR REVIEW
UNDER RULE 43 TO THE CA
- If none filed, decision is final and executory after 10
calendar days
- How about a MOTION FOR RECON? SC said It is imperative
even if prohibited under the IRR because this is part of the
doctrine of exhaustion of administrative remedies
- Notwithstanding the express IRR provision, that IRR
provision then is void
- After, go to the SC under RULE 45
- Coca Cola Bottlers Case: decision of VA should be under
Rule 43, not rule 65. If you commit a mistake there, you will
be guilty of gross ignorance of the law!
OTHER RIGHTS OF AN LLO
1. To be furnished with financial statements (Art 242 C)
- Union has to be the CEBA or certified exclusive
bargaining agent to exercise this ; mere LLO cannot
request
- Must undergo first voluntary recognition or CE
- By the way which is easier? CE is easier because of
the vote requirement
- Vote requirement in voluntary recognition is
majority of the bargaining unit, while in CE it’s
majority of valid votes cast. So, the valid votes cast
13
 can be less than the majority of the membership
of bargaining unit. This is more limited
- The request must be written
- If ER ignores/ refuses to honor right to be furnished, SC
said this is ULP, but there should be proof that a request
was made in writing
- When? (p.75 spectra)
1. After the union has been recognized by the ER as
sole bargaining representative of the EEs in the
bargaining unit
2. After the union is certified by the DOLE as such sole
bargaining representative
3. Within the last 60 days of the life of the CBA
4. During the collective bargaining negotiation
- Why is this right granted to the CEBA? Is it allowed during
the 60 day period? Because of Art 253, the duty to bargain
collectively. If they want to improve/modify the CBA during
the 60day period, they are authorized to modify the
provisions of CBA or terminate them until new agreement
is reached
2. Right to participate in policy-decision making
- Basis: Art. 255
- Not the same as PRINCIPLE OF CO-DETERMINATION. What
is it? It is participation in chartering corporate programs
and policies. SO this is not the same as right to participate
in policy-decision making because the latter is only the
right to participate in the deliberation of matters which
may affect their rights and the formulation of policies
relative thereto
- Includes right to form labor management council (LMC)
 Composed of representatives of ER and EE
 They can co-exist: labor union and LMC
 Labor union is for collective bargaining while LMC is for
outside of collective bargaining
 Thus, they have different areas of concerns
 They are also composed differently: LMC composed of
management and EEs; while union composed of EEs
only
 Which is more cordial or peaceful? The LMC because of
its composition. Union is more biased towards the
members but the LMC is not. LMC also considers the
side of the management
 Creation of the LMC is in conjunction with the right to
participate in policy-decision making
 PAL CASE in book, p. 428 wherein the EEs decided to
promulgate code of conduct. What did SC say there?
 Ad lib: strikes or lockouts can last years unless if the
industry affected is indispensable to the national
interest
3. To sue and be sued
- LLO has juridical personality separate from officers and the
members
- Can sued and be sued on its own
- It can be held liable as an entity
4. Can acquire properties
- By the way, is trade union a labor org? Yes it is, but it
cannot file petition for CE because to be able to file, it must
be an independent union or local or chapter
- Trade union is larger than federation because it is
composed of several federations
RIGHT TO PEACEFUL CONCERTED ACTIVITIES
- The ER is prohibited from interfering with right of self-
organization of the EEs
- If ER and CEBA cannot agree, a bargaining deadlock may
result. Remedies of parties:
1. Strike or lockout 2. File ULP case
- THE RIGHT TO PEACEFUL CONCERTED ACTIVITIES IS ONLY
GRANTED TO CEBA
- Forms: (p.78 Spectra)
1. Boycott
2. Picketting
- This is a form of freedom of expression or speech
- It’s marching to and fro with placards
- Not done during work hours; can be done during
breaks; before or after office hours otherwise you
can be sanctioned
- Wearing armbands is allowed since this is still part
of freedom of expression
- These forms are okay, what’s really REGULATED
by law is STRIKE
3. Strike
- Among the 3 concerted activities, it is strike that’s
regulated
- Why? There is temporary stoppage of work
Defintion (212): Any temporary stoppage of work
by the concerted action of EEs as a result of an
industrial or labor dispute
- So strike presupposes a labor dispute
- Labor dispute definition (212): 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
ER and EE
- Example: Can security guards in UCS go on strike?
Yes they can. It will still constitute a labor dispute
though they’re not EEs
- Lockout definition (212): temporary refusal of an
ER to furnish work as a result of an industrial or
labor dispute
RIGHT TO STRIKE
- Grounds:
1. Bargaining deadlock
- Happens during negotiation of CBA between CEBA
& ER
2. ULP
- Can be committed both by ER and LO
3. Gross violation of economic provisions of the CBA
- If any ground exists, party may file notice of strike
- WHERE? NCMB with jurisdiction over the workplace
- Same place to file for notice of lockout
- Secretary now: Rosalinda Baldoz
14
- No support requirement for filing. IMPORTANT:
a. Signed and filed by officer authorized in form
prescribed by the NCMB
b. There’s cooling-off period (Art 263)
1. Bargaining deadlock – 30 days before intended
date of strike
2. ULP – 15 days
3. Union-busting – no cooling-off period; can take
action immediately
- Why? There is serious threat to the survival of the
union because without the officers, who will now
manage the union? Nobody!
- Purpose of cooling-off period – for parties to
decide
- Can this be extended? Yes by agreement of parties
- NCMB NOT a QUASI-JUDICIAL BODY
 There is only the conciliator/mediator; not an
arbitrator who has power to adjudicate;
NCMB not even covered under rule 43
 It has coercive power but it cannot adjudicate
c. Union required to furnish copy of notice of strike to ER,
same way ER required to furnish copy of notice of
lockout to the CEBA
d. NCMB conducts conciliation-mediation conference
- NCMB sends out notice of conciliation
- Cooling-off period continues to run
- There’s a possibility parties can’t settle the
dispute, but they can’t stage a strike/lockout right
away
- STRIKE VOTE is conducted first, and NCMB has to
be notified 24 hours before the meeting (40-03)
STRIKE VOTE
- It’s the UNION that conducts this
- Union submits notice to NCMB of the strike vote
 Only an LLO can file notice because the right to
peaceful concerted activities belongs only to the
LLO
 Likewise, individual workers can’t file
- Requisites for a valid strike vote:
1. Meeting specially called for purpose of conducting
strike vote
2. Conduct is by secret ballot
3. Majority of total union membership to support the
strike vote
 It’s majority of total union membership, not the
bargaining unit, because the people who will stage
a strike is the union so they should be the ones to
vote
- The strike vote is to ascertain if the members are willing to
strike; if no strike vote then it is an illegal strike
- There is a need to notify the conduct of strike vote to
NCMB to ensure integrity
- Why secret ballot? Secure sanctity of the ballot. If this is
violated, the union can recommend dismissal of EE
especially when there is a closed-shop agreement, and this
is a just cause
- If majority is obtained, the union will submit it 7 days
before intended date of strike . 7-day waiting period/7-
day strike ban
- Can it conduct strike vote during cooling-off period? Yes it
can be conducted anytime but should notify NCMB 24
hours before conduct
- When will 7day period start to run?
 If you conduct it within the cooling-off period, in effect
you are “tucking it in”, so don’t do that
 Counting starts after the applicable cooling off period
 The purpose is for the parties to explore possibilities
of settling the dispute
 7-day strike ban is the last chance for NCMB to know
that there is no other choice but to strike
 Can be converted to a preventive mediation case
- PURPOSE OF STRIKE: to paralyze the operations of
company; to make the ER bend on its knees. On the part of
the company, to force the union to agree to its
proposals/counter-proposals
- Before the union can conduct a strike vote, it has to notify
NCMB 24 hours before the conduct
- Results of the strike vote are also submitted to the NCMB 7
days before the intended strike – called the 7-day waiting
period or 7-day strike ban
- SUMMARIZE: Now, the union complied with filing notice of
strike, cooling-off period, notified NCMB, conducted a
strike vote, submitted the strike vote results, now it can
stage a strike
PREVENTIVE MEDIATION
- The rules allow the conversion of this strike to a preventive
mediation case. What is this?
Preventive mediation case – refers to the potential labor
disputes, which are the subject of a formal or informal request
for conciliation and mediation assistance sought by either or
both parties or upon the initiative of the NCMB to avoid the
occurrence of actual labor disputes.
- What will happen then can they still go on strike or
lockout? NO. the strike or lockout is drop because of the
conversion.
09/26/2014
STRIKE OR LOCKOUT IN AN INDUSTRY INDISPENSABLE TO
NATIONAL INTEREST
- Kinds of labor disputes
a. Labor standards dispute
b. Labor relations dispute
- If the labor dispute is one which is causing or likely to cause
a atrike/lockout in an industry indispensable to the national
interest, THE EEs MAY STILL STAGE A STRIKE/ER CAN STILL
LOCKOUT UNTIL SOLE ASSUMES JURISDICTION IF HE IS SO
MINDED
- SOLE has power to intervene as long as it is a industry
indispensable to NI
- Does a USC belong to this? TAKE NOTE THAT THE LIST IN
THE DO IS NOT EXCLUSIVE. May mga jurisprudence class.
 Education Industry. SOLE Assumes the jurisdiction of the
labor dispute
- Upon assumption, its issues a ASSUMPTION JURISDICTION
ORDER
15
  How is service of this done? PERSONAL SERVICE
like the service of summons because of urgency
and paramount necessity of AJO because the
industry affected one which is indispensable to the
NI
- May this be done motu proprio? THE OLD RULE is that
there is only assumption when a party files. However, there
is an amendment in the DO’s I have assigned to you. What
is this? YES it can be motu proprio. DO-40-G-03 sec. 15
- What is the effect of issuing a AJO?
 Such assumption shall have the effect of
automatically enjoining an impending strike or
lockout.
 If a strike/lockout has already taken place at the
time of assumption, all striking or locked out
employees and other employees subject of the
notice of strike shall immediately return to work
and the employer shall immediately resume
operations and readmit all employees under the
same terms and conditions prevailing before the
strike or lockout.
- Summarize the effect of the assumption of the SOLE in a
strike or lockout:
 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.
- What if the strikers do not return to work?
 Their strike will become a prohibited activity subject
to sanction and disciplinary actions. It can also be a
ground for termination of employment for just cause.
- What is the purpose of the law which mandates the
employees to resume operations?
 These industries are indispensable to the national
interest. The law, in the exercise of police power,
prevents these industries from interrupting the
economy and stability of the State.
- What if the faculty of USC has a strike and there is an
assumption by the SOLE, can Fr. Miranda readmit them by
payroll?
 No because what the law intends is actual
reinstatement and not just readmission by payroll.
 It must be actual reinstatement because operations of
the industry are indispensable to the NI and therefore
they must continue
 The state cannot afford even a moment of interruption
because it will greatly affect the economy, NI
- Can an employee readmit the employees but assign them
to a different position?
 No because the law provides that EEs readmit all
workers under the same terms and conditions
prevailing before the strike or lockout. It’s a restriction
to management prerogative.
- Examples:
 Public utilities like water supply and VECO
 Hospital
 Eductation
 Air traffic control
 Trade and commerce: banking, petroleum,
pharmaceutical, shipping, telecommunications, airlines
 NOT indispensable: malls, fastfoods, restaurants
- Assuming the SOLE assumed jurisdiction on an industry
that is not indispensable to the NI, is this valid? NO, it is
illegal and the party aggrieved can question the AJO
- LEGAL REMEDY: Petition for certiorari Rule 65 to CA, after
motion for reconsideration
 file motion for recon first because a requirement
of rule 65 is that there must be no other plain,
speedy and adequate remedy
 doctrine of exhaustion of administrative remedies
- SOLE can decide the case OR certify it to the NLRC for
compulsory arbitration
- 1 NLRC, 8 divisions: 5 in Luzon, 1 in Visayas, 1 in Mindanao
- NLRC will not take cognizance of the dispute in exercise of
its ORIGINAL JURISDICTION
- REMEDY from NLRC: motion for reconsideration, then
petition for certiorari to CA Rule 65
 Do not go to SOLE after NLRC
 So this is the same if SOLE assumed jurisdiction,
rule 65 is the remedy from both and also, BOTH
require you file first a motion for recon
- PAL CASE
 PAL outsourced many of its activities like ticketing
with a contractor. SO you see now the personnel
wearing different uniforms form PAL because they
are put there by the contractor
 Union sued for ULP because of the outsourcing of
functions of regular workers and as a result, many
were terminated
 The union threatened a strike and the SOLE
assumed jurisdiction
 PAL won in the level of the SOLE, but union went
to the OFFICE OF THE PRESIDENT which dismissed
the appeal
 This office of the president acted correctly
because the SOLE is just the alter-ego of the
President so his decision is also the decision of the
President
 So na-technical sila. They went now to the CA, but
I don’t know what happened after
 So you see, if you follow a wrong remedy, there
will be DISMISSAL OF YOUR CASE, so follow the
procedure
- REMEDY FROM ISSUANCE OF AJO: motion for recon but
this will not stop the AJO from being immediately executor
because the NI is involved here
REMEDIES OF ER IF THERE ARE PROHIBITED ACTS COMMITTED
- After faithfully complying with the requirements, the union
can now stage a strike
- In the course of staging a strike, EEs may also be guilty of
PROHIBITED ACTS DURING THE STRIKE
1. Violence
16
 2. Blocking the ingress and egress in the workplace
1. FILE PETITION FOR INJUNCTION DIRECTLY WITH THE NLRC
- In Art 254, there’s an anti-injunction ban so the regular
courts are prohibited from issuing an injunction order exc:
- Art 218 – powers of the NLRC
- Art 264 – when the SOLE assumes jurisdiction
- So a labor dispute is exclusive to the these tribunals: NLRC
and SOLE; let them resolve the labor dispute
- But the NLRC cannot stop the STRIKE, it will only enjoin the
commission of prohibited acts
 Example: if you are blocking the ingress/egress, the
police can physically carry you somewhere else
- SO this is not the same EFFECT as with the AJO of SOLE. The
SOLE is more powerful in issuing AJO because of National
Interest
- REMEDY of union which feels aggrieved of the injunction
order of NLRC: rule 65 petition for certiorari to the CA,
then rule 45 SC
- Suppose SM had a labor dispute with its EEs. The EEs went
on a strike and blocked all the ingress and egress so the
customers cannot enter anymore. The owners of the shops
and outlets inside were also affected even when they did
not have any labor dispute with SM EEs
 INNOCENT BY-STANDER RULE applies:
The owners of the outlets are not privy to their
CBA; they have no labor dispute but they can file
PETITION FOR INJUNCTION in the regular courts
being an innocent by-stander
- Suppose also USC hired a security agency under a
contracting arrangement. But the contractor turned out to
be “balasubas” and did not comply with its obligations; it
did not pay the guards. Can the guards go on strike?
 Can they form a union in USC? YES, depending on
their rank and status
 So they can form, and they did form a union and
now they have a labor dispute with the security
agency
 THEY CAN GO ON STRIKE depending of course if
they have a ground: bargaining deadlock or ULP,
after complying with procedural requirements
 So now they’re blocking the ingress/egress. People
cannot enter because they staged the strike in the
school premises; the STRIKEABLE AREA is their
place of work
 (212 L) LABOR DISPUTE: “…..regardless of whether
the disputants stand in the proximate relation of
ER and EE.”
 Therefore, though the guards are not EEs of USC
but the phrase “regardless” connotes that a labor
dispute extends to even a contracting
arrangement. In the first place, if it were not for
USC< they won’t be there. There’s a PROXIMATE
relationship, not a direct one
 REMEDY OF USC: file a petition for injunction in
the NLRC
 Why with the NLRC? Because there’s a
ban on regular courts
 Since there is a LABOR DISPUTE between
USC and the guards, they have to file with
the NLRC. Unlike the owners of the
outlets of SM, USC is not an innocent by-
stander. It is a part to the labor dispute
2. DISCIPLINARY ACTION
- EFFECT if the AJO NOT FOLLOWED: this is a commission of
a prohibited act and can be the subject of a disciplinary
action
- How to initiate disciplinary action against EEs if they
committed prohibited acts? Follow the procedure in
termination but subject to due process:
 Send a notice to explain within 5 days why they
should not be dismissed for committing illegal acts
 Investigation
 Terminate them for committing illegal acts
3. PETITION TO DECLARE STRIKE ILLEGAL
- Where? To the LABOR ARBITER under Article 217
- The labor arbiter has the power to declare a strike illegal
- EFFECT if LA finds the strike illegal: make a distinction
a. UNION officers – can be declared to have lost their
employment status, or for illegal acts
b. MEMBERS – can be declared only for illegal acts
committed during a strike
 If there is an AJO but they persisted not to return,
either officer or member can now be declared to have
lost employment status because the illegal act being
done is defiance of the AJO
 In another case, there is no defiance of AJO but the
union did not comply with strike vote or cooling off
period? Article 264 says mere participation of union
member in an illegal strike is not a ground of
termination.
 For union officers, ER has to prove that they
“knowingly” participated in an illegal strike
 DISTINCTION: for a union officer, there are 2 ground
for dismissal here: participation in illegal acts and
illegal strike. For members, only illegal acts
- AGENCIES THAT DECLARE A STRIKE ILLEGAL
a. Labor Arbiter
b. NLRC – because the decision of the LA is appealed to
the NLRC
c. SOLE – only instance is when SOLE assumes jurisdiction
over a labor dispute under Art 263 involving industry
indispensable to NI
- So the SOLE decides the case INCLUDING legality
of strike/lockout
- Jurisdiction of SOLE here is very comprehensive.
He can decide ANY LABOR DISPUTE BROUGHT
BEFORE HIM INCLUDING THOSE UNDER ART. 217
(jurisdiction of LA)
- It is also very comprehensive in the sense that he
can decide also issues related to the strike/lockout
including those even under Art 217 BUT ONLY FOR
ESTABLISHMENTS IN INDUSTRIES INDISPENSABLE
TO THE NATIONAL INTEREST
DECISION of VOLUNTARY ARBITRATOR
- The VA usually contemplate organized establishments
- How about a termination dispute? YES he can assume even
17
 if it’s not his original jurisdiction in Art 261 AS LONG AS for compulsory arbitration
BOTH PARTIES AGREE, the CEBA and the ER – both should - What is the purpose of this? Why does the law allow this?
decide to submit the dispute to the VA
 This is because the law wants parties to establish
- REMEDY FROM VA: Petition for Review under Rule 43 machinery for the adjustment and resolution of
because VA is among those listed in rule 43 and VA is a grievances arising from the interpretation or
QUASI-JUDICIAL INSTRUMENTALITY implementation of their Collective Bargaining
- FROM CA: to SC rule 45 Agreement and those arising from the interpretation
- the decision of VA is final and executor after 10 calendar or enforcement of company personnel policies.
days  It is the policy of the state to allow the parties to
- Under rule 43, filing of petition for review is 15 days , but provide a mechanism between them for a peaceful
the VA’s decision becomes final and executor after 10 days. resolution to the dispute. There is of course nothing
wrong with that.
How can you now stop the decision of the VA? Together
with petition for review, ask for a TRO to stop enforcement  If you do not allow them to put a mechanism to
resolve the dispute you are in effect allowing the
otherwise VA can enforce his decision
employer to resort to other measures like locking the
employees out and in the part of the union strike,
10/03/2014 which is bad for the interest of the public.
CRIMINAL ACTION  Policy of the state to voluntary arbitration not
- If there are strikers who in the course of a strike commit compulsory arbitration
violence, they can be:
1. Arrested or detained
DISTINGUISH COMPULSORY ARBITRATION from VOLUNTARY
2. Can be prosecuted in courts of law
ARBITRATION
Requirements:
Voluntary Compulsory
a. For arrest/detention: Art 266: Except on grounds of
national security and public peace, or in case of Who Parties law
establishes it
commission of a crime, no union members or union
organizers may be arrested or detained for union Subject matter UNRESOLVED Defined by LAW,
activities without previous consultation with the SOLE. GRIEVANCES enumerated in
b. For criminal prosecution: DO 40-G-03: The regular involving: Art. 217,
jurisdiction of
courts hall have jurisdiction over any criminal action a.Interpretation
Labor Arbiter
under Art. 272 of the Labor Code, as amended, but &
subject to the required clearance from the DOLE on implementatio
n of CBA
cases arising out of or related to a labor dispute
b. Interpretation
pursuant to the Circular… & enforcement
of company
personnel
THE GRIEVANCE MACHINERY (GM) policies
- Article 260 Rendition of Final and Appealable to
a. Interpretation and implementation of CBA decision UNAPPEALABLE. the NLRC
b. Interpretation and enforcement of company personnel Only mode of
review is rule 43
policies
- GM is a mechanism on adjudication and resolution of Done by who Voluntary Labor arbiters
disputes concerning issues mentioned above arbitrators who
- The law requires the parties to incorporate GM in the CBA have quasi-judicial
function
- Grievance handling is a framework of alternative dispute
resolution that prevents labor disputes. It is similar to Choice of Chosen by the Not chosen
voluntary arbitration, conciliation and mediation. The GM is arbitrator parties
a form of alternative dispute resolution established under
the Labor Code
- This is because the state does not want the parties to take
the law into their own hands. Strikes and lockouts are not
encouraged
- If the parties are unable to create one, the IRR creates for
the parties a GM with representatives chosen by both
- If issue is not resolved, it is referred to voluntary arbitration FROM AZUCENA (p.516)
– this is when you are supposed to know the Revised
- Voluntary arbitration has been defined as a contractual
Guidelines
proceeding whereby the parties to any dispute or
- GM Procedure is in the IRR (40-03)
controversy, in order to obtain a speedy an inexpensive
- In handling a labor dispute that has been unresolved final disposition of the matter involved, select a judge of
involving contract interpretation or implementation, use their own choice and by consent submit their controversy
the Revised Guidelines, not the NLRC Rules because that is to him for determination. Referral of a dispute is made by
the parties pursuant to a voluntary arbitration clause in
18
their CBA, to an impartial third person for a final and
binding resolution.

- It is permissible to stipulate in CBA that a termination
dispute is also subject to GM/VA. This is sufficient to confer
jurisdiction because according to Art. 262, upon
agreement, all other disputes including ULP and bargaining
deadlocks may be subject to voluntary arbitration. Labor
standards disputes may even be included
- So Voluntary Arbitration is better since compulsory is very
strict. Labor arbiter cannot take cognizance of a case unless
conferred by law in Art. 217. Those are the only cases they
can decide because it is the LAW that defines them; while
voluntary arbitrator is allowed by law to take cognizance of
other matters
- Situation: You’re member of a bargaining unit and union.
ER has a CBA with union and it contains provision on wage
increase. ER did not implement it and the union did not
bother. SO you went to the management in your capacity
as a member. Can you bring such grievance directly to
management?
 YES. Under Art 255, it is permissible. You are not
prevented by the existence of the union from bringing
your grievance directly to the management
 Now, the ER said the union is not interested in your
grievance. Can you as individual member file a
complaint to the GM/VA? NO. Parties in the GM/VA
are only the ER and the CEBA
We have studied that one stipulation in the CBA is the union
security clause. What again are the types of union security
clauses?
1. Closed shop agreement
- ER will only hire members of a CBU and must remain a
member for continued employment
- Considered as the most prized achievement of unionism
because there is no choice on the part of any person who
wishes to be employed but to become a member of the
union
2. Maintenance of membership agreement
- No EE is compelled to join the union but all present or
future members must as condition of employment remain
in good standing in the union
- Goes together with the Union Shop in one CBA.
3. Union shop agreement
- ER may hire persons who are not yet members of a
Collective Bargaining Unit however to continue with their
employment they have to become members after a certain
period.
Grievance machinery again is it economic or non- economic?
- non economic
what is the duration of that provision?
- SUBJECT TO AGREEMENT OF THE PARTIES
Situation: So lets say the parties agree to a closed shop
agreement in the CBA, the ER hires workers who will hire
members of the existing bargaining unit. So parties are
complying with the agreement. One day, the union officer
dismissed one of its union members for disloyalty. The union
requested the ER that
1. We have a closed shop agreement
2. This person is no longer a member of the union
We are asking you to terminate this person. This is what we call
enforcement of the union security clause. So the ER terminated
that person from employment. Now there is a termination
dispute. The person filed a complaint before the Labor arbiter
against the ER. Does the LA have jurisdiction?
- Yes because the parties involved here are the
employee on one side and the employer and union on
the other side. The dispute is not subject to the
grievance machinery because the parties involved in a
dispute subject to the GM are the Certified Bargaining
Union and the employer.
- SC: the parties to VA or the GM are the Certified
Bargaining Union and ER on the other hand.
- Who will be presiding the grievance? The grievance
committee
TOPIC14: REVISED PROCEDURAL GUIDELINES IN THE CONDUCT
OF VOLUNTARY ARBITRATION PROCEEDINGS
- Situation: There’s a grievance consisting of a termination
dispute. There is also a stipulation in the CBA that such
dispute must be subject to the GM/VA. ER terminated
union President illegally; there was no just cause and due
process.
 He cannot file his complaint with the Labor Arbiter
because it’s stipulated in the CBA that they should
undergo GM/VA. The labor arbiter will dismiss it
a. Referral to GM
- SO if there’s a stipulation in the CBA, he will have
to refer it first to the GM/VA
- Agreement will bind all EEs including the officers
and the union representing them; the EEs gave
their consent to be bound through their union
- Going back to composition of GM: 40-03
 At least 2 representatives from each ER and
union
- The GM will now try to resolve the complaint for
illegal dismissal. It will be unavoidable that the
union will side with the officer. Likely, they can’t
resolve their dispute at their level so the grievance
will now remain UNRESOLVED
b. Go to the VA – submission of the dispute
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 - It is valid to stipulate who the VA is
- Permanent arbitrator: the VA specifically named
or designated in the CBA by the parties as their VA
- Ad-hoc arbitrator: the VA chosen by the parties in
accordance with the established procedures in the
CBA or the one appointed by the board in case
there is failure in the selection or in case either of
the parties to the CBA refuses to submit to VA
- Example: They can stipulate
1. Dean Monteclar
2. In case of absence, death incapacity; Dean
Valencia
3. In case of absence, death, incapacity; Justice
Ingles
 This is a valid stipulation as long as such
people chosen will outlive the CBA
- If the parties have not stipulated names, they can
appoint someone when the grievance arises
- Under IRR, NCMB has a list of accredited VA’s. If
you don’t know who to appoint, there’s this list.
You can apply, no exam; meet the qualifications
and undergo workshop; then you are issued an
accreditation. YOU CAN BE SUBJECT TO THE
OMBUDSMAN (na slip of the tongue si sir? So
public officer jud tingali ang VA)
- Voluntary arbitrator’s fee:
Art. 262-B. Cost of voluntary arbitration and
Voluntary Arbitrator’s fee. The parties to a
Collective Bargaining Agreement shall provide
therein a proportionate sharing scheme on the
cost of voluntary arbitration including the
Voluntary Arbitrator’s 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:
a. Nature of the case;
b. Time consumed in hearing the case;
c. Professional standing of the Voluntary
Arbitrator;
d. Capacity to pay of the parties; and
e. Fees provided for in the Revised Rules of Court.
- So there is no specific fee but there are factors. The law
leaves to the parties to agree how much
- If you have no financial capacity, there’s a subsidy called
the Special Voluntary Arbitration Fund. Unlike in the labor
arbiter, if you have no money, your case is dead. There is
no subsidy
- Why is there such fund? Because the state encourages this
as a mode; there is no such fund in compulsory arbitration
so will be forced to finance your own case
- SO now you submit the termination dispute to the VA; you
now choose who that VA is to resolve on the alleged illegal
dismissal. Of course, the VA can decline, so the parties will
have to choose again
- If they can’t choose, they can go to the list of from there,
draw by lots
- Assuming the VA agreed to accept, he will now preside and
meet with the parties. For this, he require a
SUBMISSION AGREEMENT: a written agreement by the
parties submitting their case for arbitration containing the
issues, the chosen arbitrator and stipulation to abide by
and comply with the resolution including the cost of
arbitration
- There’s just a form for this submission agreement; fill it up
with the names of the lawyers if any, issues, sign and
submit to the VA
- The VA also has DUTIES and POWERS under the guidelines:
Section 3. Powers.
The voluntary arbitrator shall have the following powers to:
1. Require any person to attend hearing/s;
2. Subpoena witnesses and receive documents when the
relevancy of the testimony and the materiality thereof
has been demonstrated to the arbitrators;
3. Take whatever action is necessary to resolve the
issue/s subject of the dispute;
4. Issue a writ of execution to enforce final decision and,
in connection therewith, it shall be his duty to:
I. See to it that his/her decision is fully satisfied;
II. Inquire into the correctness of the execution of
his/her final decision;
III. Consider whatever supervening event that may
transpire during such execution;
IV. Determine every question of fact and law which
may be involved in the execution.
- The VA can try, decide, gather evidence and render
decisions like the labor arbiter
c. Submission of position papers
- Now the Va will require you to submit a position paper
- When? Agreed by parties
- When is the reply filed? Still agreed by the parties
- Everything is by agreement. It is voluntary by nature so at
the end of the day, they parties should abide by the
decision rendered
- In practice: the VA informs you ahead of his FEE. Example,
the VA was a lawyer and he asked for 10K per issue in the
submission agreement. So it was narrowed down to 1
issue. This is a quasi-judicial function so whatever decision
rendered may be subject to review, and here your
reputation is at stake. This is a heavy responsibility
- SO in practice, there is the principle of money down before
the position paper
- When the position papers are submitted, the VA can hold a
clarificatory hearing if there is a need; but often, non is
conducted
- Is the position paper in arbitration similar to the NLRC
rules of procedure where you attach the position paper,
your statements, and your evidences?
 Arbitration - You submit your position paper
simultaneously, if you want to comply you can comply,
you agree on when you submit, when you file a reply.
Everything is by agreement. Then I will take a look at it
and would try to see whether there is a need to have a
hearing or not. If there is no need then I will decide the
dispute based on the position papers.
- The rules of procedure in the NLRC – there is always a
reglementary period
d. Rendition of decision
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- REMEDY to question decision of VA: Motion for
reconsideration 10 days after receipt by the parties of
decision
- Office of the VA is a QUASI-JUDICIAL INSTRUMENTALITY.
- If there motion for reconsideration denied, 10 days from
denial
- If no motion for recon is filed, REMEDY: rule 43 petition for
review to the CA on grounds of question of law and fact
within 15 days
 Petition for certiorari – rule 65 CA
 Petition for review on certiorari or Appeal by certiorari
– rule 45 SC
 Petition for review – rule 43 CA
- But the decision of the VA after 10 days is final and
executory, while the remedy under rule 43 is available until
the 15th day
- Now, the decision of the VA can be stayed if petition for
review is filed by filing an INJUNCTIVE RELIEF to enjoin
enforcement
- If there is no such injunctive relief, the VA can execute he
decision writ of execution upon finality and enforce it
- FROM CA: petition for review on certiorari, rule 45 to the
SC on pure questions of law within 15 days
JURISDICTION OF VA (under Guidelines, rule 4, sec 1)
Exclusive and original jurisdiction over the following cases:
1. All unresolved grievances arising from the
interpretation or implementation of the CBA
2. All unresolved grievances arising from the
implementation or enforcement of company personnel
policies
3. All wage distortion issues arising from the application
of any wage orders in ORGANIZED ESTABLISHMENTS
So distinction on jurisdiction of wage orders:
a. Organized establishment – VA
b. Unorganized establishment – Labor Arbiter
4. All unresolved grievances arising from the
interpretation and implementation of the productivity
incentive programs under RA 6971
5. (ADDED) All grievances not settled or resolved within
7 calendar days from date of submission for resolution
to the last step of the GM
NOTICE TO ARBITRATE
- There’s arbitrable issue and 1 party is not willing to submit
to VA, REMEDY of other party is to file NOTICE TO
ARBITRATE with NCMB and serve a copy on the other party
- NOTICE TO ARBITRATE: a formal demand mae by one party
to the other for the arbitration of a particular dispute in
case of refusal of one party in a CBA to submit for
arbitration
- NCMB will take cognizance of the case and require to
submit the dispute to VA; they can also appoint a VA motu
proprio
- The parties cannot go the compulsory arbitration when the
matter is outside the jurisdiction of the labor arbiter
- So this is the remedy for the reluctance of 1 party to
arbitrate
TOPIC 15: UNFAIR LABOR PRACTICE
- It can be committed by both ER and LLO
- Nature: the violation of the constitutional right to self-
organization
- RIGHT TO SELF-ORGANIZATION: the right of workers to
FORM, JOIN or ASSIST in the formation of labor
organizations
 Can foreigners form join assist labor organization?
GR: Art. 269. Prohibition against aliens; exceptions.
All aliens, natural or juridical, as well as foreign
organizations are strictly prohibited from engaging
directly or indirectly in all forms of trade union
activities without prejudice to normal contacts
between Philippine labor unions and recognized
international labor centers:
EXC: Provided, however,
1. That aliens working in the country with valid
permits issued by the Department of Labor and
Employment,
2. may exercise the right to self-organization and
join or assist labor organizations of their own
choosing for purposes of collective bargaining:
3. Provided, further, That said aliens are nationals of
a country which grants the same or similar rights
to Filipino workers.
- it is a constitutional right, and the violation of this is called
the ULP
- it is BOTH CIVIL and CRIMINAL OFFENSE
- basis for civil liability: Art 32, par 12
“Any public officer or employee, or any private individual,
who directly or indirectly obstructs, defeats, violates or in
any manner impedes or impairs any of the following rights
and liberties of another person shall be liable to the latter
for damages:
Xxx
12) the right to become a member of associations or
societies for purposes not contrary to law
Can policemen form a labor union?
They are expressly prohibited.
How about firefighters? Or are they firemen? We have
government firemen.
A: EO 180 : The following shall not be eligible to form, join or
assist any employees’ organization for purposes of
collective negotiations:
a) high level, highly confidential and coterminous
employees;
b) members of the Armed Forces of the Philippines;
c) members of the Philippine National Police;
d) firemen;
e) jail guards; and,
f) other personnel who, by the nature of their functions,
are authorized to carry firearms, except when there is
express written approval from management.
LET’S GO DOWN THE LINE!
ART. 248. UNFAIR LABOR PRACTICES OF EMPLOYERS. It shall
be unlawful for an employer to commit any of the following
unfair labor practice:
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1. TO INTERFERE WITH, RESTRAIN OR COERCE EMPLOYEES IN
THE EXERCISE OF THEIR RIGHT TO SELF-ORGANIZATION;
- Example: the EEs are recruiting members for the union
and the ER interferes, this is a ULP
- This is ULP because the EE decides on his own to
exercise the right or not. He also has the right to quit
membership
2. 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
- 2 REQUISITES to CONSTITUTE ULP:
a. there is an ER-EE relationship
b. the acts is one of those enumerated under the law
- Under this second instance of ULP, this is the ONLY
exception to the requirement of ER-EE relationship
because it says “PERSON”
- This is also called the YELLOWDOG CONTRACT
- Situation 1: The ER says, yes you can apply but you
can’t join any union. The person can sue him for
DAMAGES using Art. 32. Jurisdiction is with the
REGULAR COURTS ; not the labor arbiter because that
person is not employed
- Situation 2: Now you are hired as an EE, and you were
made to quit by ER due to union activities. LABOR
ARBITER now has jurisdiction for claims of actual,
moral and other damages arising from EE-ER
relationship
- But the parties can still agree to submit this to VA If
they both agree
3. 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
- Contracting out is legal, as you learned in labor
standards under Art. 106, 107, 108
- What’s illegal?
a. Labor-only contracting
b. When contracting-out interferes with right to self-
organization; this constitutes ULP
4. 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
- ER cannot encourage a union; that is an exclusive affair
otherwise a COMPANY UNION is created and this is
illegal
- “Union cannot sleep with the enemy”
- Union is a TRUSTEE of EEs/members
 Union is required to abide with principles of
fair dealing
 There is an element of trust
 A FIDUCIARY RELATIONSHIP where the EEs
placed trust and confidence on the union
 EEs are the TRUSTOR and the union is the
TRUSTEE
 If there is a breach of trust, EEs are authorized
to oust the CEBA
 How do they oust it? Challenge the status by a
PETITION FOR CERTIFICATION ELECTION
5. 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
- ER’s act of discriminating in terms of wages is NOT
illegal per se
- It is only ULP when it encourages or discourages
membership in a union
 Ex. ER says I won’t promote you unless you
don’t become a union organizer anymore! –
illegal
- EE has the BURDEN OF PROOF to prove the claim of
ULP – the one who accuses has the burden of proof
- ALLEGATION vs. PROOF
 You have to prove that allegation by or
evidence such as testimonial, documentary or
object evidence
 If the evidence is admissible, then that is now
called the PROOF
 So prove that the discrimination of wages was
to encourage or discourage union activities
6. TO DISMISS, DISCHARGE OR OTHERWISE PREJUDICE OR
DISCRIMINATE AGAINST AN EMPLOYEE FOR HAVING
GIVEN OR BEING ABOUT TO GIVE TESTIMONY UNDER THIS
CODE
- Original jurisdiction of ULP is with the LABOR ARBITER
- Can it be decided by the SOLE? Only when involving a
labor dispute which is causing or likely to cause a strike
or lockout in an industry indispensable to the national
interest
- It can also be with the VOLUNTARY ARBITRATOR if the
parties agree on it
7. TO VIOLATE THE DUTY TO BARGAIN COLLECTIVELY AS
PRESCRIBED BY THIS CODE
- ER has duty when there’s a CEBA or even when there is
no CEBA yet
- DUTIES
a. With a CBA – Art. 253: Neither party shall
terminate or modify such agreement during its
lifetime. However, either party can serve a written
notice to terminate or modify the agreement at
least 60 days prior to its expiration date. It shall be
the duty of both parties to keep the status quo
and continue in full force and effect the terms and
conditions of the existing agreement during the
60-day period and/or until a new agreement is
reached
b. Without a CBA – Art. 252: mutual obligation to
meet and convene promptly and expeditiously in
good faith for the purpose of negotiating an
agreement with respect to wages, hours of work
and all other terms and conditions of
employment…
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 - Violation of the foregoing duties is ULP since this is
detrimental to the EEs. They expect the CEBA to do its
job
- JURISDICTION: file the complaint with the Labor
Arbiter UNLESS parties stipulated in CBA that it’s
subject to GM/VA
8. TO PAY NEGOTIATION OR ATTORNEY’S FEES TO THE
UNION OR ITS OFFICERS OR AGENTS AS PART OF THE
SETTLEMENT OF ANY ISSUE IN COLLECTIVE BARGAINING
OR ANY OTHER DISPUTE
- To unduly influence the union into giving concession,
that is prejudicial. If you accept money from ER that
might influence. The union is just an agent- just human
beings- can also be tempted with money, cash or kind.
To avoid that - the law said it’s ULP
9. TO VIOLATE THE CBA
- Mere violation of the CBA is not unfair labor practice.
It has to be a gross violation of the CBA where there is
flagrant and/or malicious refusal to comply with the
economic provisions of the CBA.
- What is the EXCEPTION where the violation of the CBA,
even if not an economic provision, is considered ULP?
When the ER completely disregards the CBA. There is
arbitrary and gross disregard of the CBA.
ART. 249. UNFAIR LABOR PRACTICES OF LABOR
ORGANIZATIONS. It shall be unfair labor practice for a labor
organization, its officers, agents or representatives:
1. TO RESTRAIN OR COERCE EMPLOYEES IN THE EXERCISE OF
THEIR RIGHT 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
- LLO cannot compel any EE to join because an individual
is free to associate or not
- There’s this 2 concept of association: the liberty and
the power.
Because the employee has the liberty to decide and
act for himself and power to choose to associate
himself with the union and he can also choose to
dissociate himself, if he belongs to that union.
- So, you cannot compel and force an EE to join your
union. That amounts to ULP. Leave it up to him. That is
his freedom of association.
- In one establishment here in Cebu, the propaganda of
the union is “you have to join us ha. If you will not join
us, you will lose your job”. That was their propaganda,
and the EEs there believe that propaganda until such
time that I went there and enlightened them and
explain to the EEs and what is that right to form an
organization and right not to form such and the pros
and cons of a union organization.
- A legitimate labor union that has not been certified as
the exclusive bargaining agent cannot exercise the
right to collective bargaining. It has to be CERTIFIED
2. 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
3. TO VIOLATE THE DUTY, OR REFUSE TO BARGAIN
COLLECTIVELY WITH THE EMPLOYER, PROVIDED IT IS THE
REPRESENTATIVE OF THE EMPLOYEES
4. 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
- This is also called FEATHER BEDDING
5. TO ASK FOR OR ACCEPT NEGOTIATION OR ATTORNEY’S
FEES FROM EMPLOYERS AS PART OF THE SETTLEMENT OF
ANY ISSUE IN COLLECTIVE BARGAINING OR ANY OTHER
DISPUTE
6. TO VIOLATE A COLLECTIVE BARGAINING AGREEMENT
- Not mere violation, it has to be GROSS violation of
economic provisions –a malicious and flagrant refusal
to comply
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.
RUN-AWAY SHOP
An industrial plant moved by its owners from one location
to another to escape union labor regulations or state laws.
But the term is also used to describe a plant removed to a
new location in order to discriminate against employees at
the old plant because of their union activities
BAD-FAITH BARGAINING
1. Surface Bargaining
- A sophisticated pretense in the form of apparent
bargaining
- ER gives proposals which could not be offered with any
reasonable expectation that they would be accepted
by the union
- Going through the motions of negotiation without any
legal intent to reach an agreement
- Can be committed by ANY party
2. Blue-sky bargaining
- Making exaggerated or unreasonable proposals
- Can be committed by ANY party
- Situation: CEBA proposed a CBA which has the moon
and stars for its limits. Can ER close its business and
terminate instead the workers?
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  Closure of business must be in GOOD FAITH
 LLO also was in BAD FAITH because of blue-
sky bargaining
 There was BAD FAITH ON BOTH parties
 Is in pari delicto rule applicable? YES it is
applicable. The law will leave them as they are
and maintain the status quo
 No relief to either of the parties
 So as a result, the business has to be opened
 THIS IS AN SC CASE! SC said the proper
remedy is to SUE FOR ULP, not closing the
business because this will be bad faith

3. Boulwarism
- Product, firm, fair offer marketed vigorously to the
consumers or EEs to convince them that the company
and not the union is their true representative

4. Yellow-dog contract
- Contract provisions whereby an EE agrees that during
the period of his employment he will not become a
member of a labor union
- May also include:
a. Representation by the EE that he is not a member
of a labor union
b. Promise by the EE not to join a labor union
c. Promise by the EE that, upon joining a labor union,
he will quit his employment

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