DURAN, MAUREEN FAITH A.

ELUMBA. CHRISTIAN PHILIP R.

ONDONG, JOAN VICTORIA D.
PAJO, JULIE ANN MAE
UGANG, RAFAEL

LABOR LAW REVIEW 2017

GUIDE QUESTIONS AND ANSWERS FOR FINALS

1. Regular employment vs Casual employment

Regular employees refers to those who have been “engaged to perform activities which are
usually necessary or desirable in the usual business or trade of the employer.”
Casual employees is engaged to perform a job, work or service which is merely incidental to
the business of the employer, and such job, work or service is for a definite period made known
to the employee at the time of engagement. In other words, those performing activities which
are not usually necessary or desirable in the employer’s usual business or trade.

2. When may a casual employee be considered regular

Casual employee becomes regular after one year of service by operation of law. Also,
repeated rehiring of a casual employee makes him a regular employee.

3. What are the requisites of the following:

a. Project employee
Requisites:
1. hires for a specific project or undertaking; and
2. The completion or termination of such project has been determined at the time of
their engagement.

b. Seasonal employee
Requisites:
1. one whose work or service to be performed is seasonal in nature; and
2. The employment is for the duration of the season.

c. Probationary employee
Requisites:
1. one who, for a given period of time, is on observation, evaluation and trial by an
employer during which the employer determines whether or not he is qualified for permanent
employment; and
2. The parties intend to make their relationship regular after the lapse of the
probationary period.
 d. Fixed-term employee
Requisites:
1. the employee is employed for a fixed period; and
2. There is no intention from the parties to make their relationship regular and the
relationship automatically terminates at the expiration of the period.

4. Explain the statement “due process in termination cases refers to statutory and not
constitutional due process “
According to the Agabon doctrine, it is now the prevailing rule that it is not the due process
provided in the Constitution that is required in termination of employment but the statutory
due process provided under Article 277[b] of the Labor Code.
Statutory due process protects employees from being unjustly terminated without just
cause after notice and hearing, as such, the Bill of Rights is not meant to be invoked against acts
of private individuals like employers. Private actions, no matter how egregious, cannot violate
the constitutional guarantees.

5. When is notice alone benefit of hearing be considered compliant with the due process
requirement and when is it not compliant?
Notice alone, without hearing, is considered complaint with due process is when in the case
of:
1. Abandonment of work;
(and more… refer page 417 Chan book)

When it is not complaint, as follows:

1. if employee does not answer;
2. Outright termination;
3. Investigation still required even if incident was witnessed by many;
(and more… refer page 416 Chan book)

6. Cite instances when hearing is not required in validly termination an employee from his
employment.
1. Abandonment of work;
2. Termination of project, seasonal, casual or fixed-term employment;
3. Termination of probationary employment on the ground of failure of the probationary
employee to qualify as a regular employee in accordance with reasonable standards made known to
him at the start of the employment;
4. Termination due to authorized causes under Article 283;
5. Termination due to disease under Article 284; (and more… refer page 417 Chan book)

7. Distinguish termination without cause from termination for non-existing cause

 The distinction is that in the former, it is the intention of the employer to dismiss his
employee for no cause whatsoever, in which case the Termination Pay Law would apply. In the
latter case, the employer does not intend to dismiss the employee but for a specific cause which
turns out to be false or non-existent. Hence, absent the reason which gave rise to his separation
from employment, there is no intention on the part of the employer to dismiss the employee
concerned.

8. In termination, in what instance may an award for reinstatement, back wages and separation
pay be held improper?
When the dismissal is legal and there is no finding of illegality of dismissal such payment is
held not proper or improper.

9. May the dismissal of an employee criminally convicted for the same act which was the basis
of her dismissal be considered illegal?
No, it is not considered illegal. The conviction of an employee in a criminal case is not
indispensable to warrant his dismissal by his employer. If there is sufficient evidence to show
that the employee has been guilty of a breach of trust, or that his employer has ample reason to
distrust him, it cannot justly deny to the employer the authority to dismiss such employee. It is
sufficient for a just cause for their termination based on loss of trust and confidence.

10. When may reinstatement be ordered by the Secretary of labor even if the issue on the
legality and illegality of the employee’s dismissal is pending resolution before the labor
arbiter?
The Secretary of labor may suspend the effects of termination pending resolution of the
case in the event of a prima facie finding by the appropriate official of the DOLE before whom
the dispute is pending that:
1. the termination may cause a serious labor dispute; or
2. The termination is in implementation of a mass lay-off.

11. Is the decision of the labor arbiter, finding that an employee was illegally dismissed
considered immediately executory even pending appeal?
Yes, it is considered immediately executory even pending appeal. Being self-executory, no
writ of execution is required to be issued to implement it.

12. Preventive suspension vs suspension imposed from as a form of penalty

Preventive suspension may be legally imposed against an errant employee only when his
alleged violation is the subject of an investigation, only in cases where the employee’s continued
presence in the company premises during the investigation poses a serious and imminent threat
to the life or property of the employer or of the employee’s co-workers. On the other hand,
suspension as a penalty is when the dismissal is too harsh a penalty due to certain mitigating
factors such as, the absence of malice or the fact that the employee is a first time offender,
suspension is deemed sufficient penalty.
13. May separation be granted despite lawful dismissal or for cause?
No, the award is not proper if there is no finding of illegality of dismissal because the
principal remedy of reinstatement may only be granted in case the dismissal is illegal.

14. Cite instances where officers are held liable without necessarily piercing the veil of corporate
fiction
An officer is held personally liable when:

(1) He assents (a) to a patently unlawful act of the corporation, or (b) for bad faith or gross
negligence in directing its affairs, or (c) for conflict of interest, resulting in damages to the
corporation, its stockholders or other persons;

(2) He consents to the issuance of watered stocks or who, having knowledge thereof, does
not forthwith file with the corporate secretary his written objection thereto;

(3) He agrees to hold himself personally and solidarily liable with the corporation; or

(4) He is made, by a specific provision of law, to personally answer for his corporate action.

15. When is the condition of employment not to marry valid?

The stipulation is a valid exercise of management prerogative. The prohibition against
personal or marital relationships with employees of competitor-companies upon its
employees is reasonable under the circumstances because relationships of that nature
might compromise the interests of the company. Such possibility that a competitor
company might gain access to its trade secrets, manufacturing formulas, marketing
strategies and other confidential programs and information.

16. Constructive dismissal vs forced resignation

Constructive dismissal is an act amounting to dismissal but made to appear as if it were
not. In other words, it is a dismissal in disguise. While, forced resignation is wherein the
employee is made to do or perform an involuntary act – submission or tender of resignation –
meant to validate the action of management in inveigling, luring or influencing or practically
forcing the employee to effectuate the termination of employment, instead of doing the
termination himself.

17. For purposes of determining the minimum retirement pay due to an employee, what are the
components of ½ month salary?
It shall include all of the following:
1. Fifteen (15) days salary of the employee based on his latest salary rate;
2. Cash equivalent of five (5) days of service incentive leave;
3. One-twelfth (1/12) of the 13th month pay due the employee; and
 4. All other benefits that the employer and employee may agree upon that should be
included in the computation of the employee’s retirement pay.

18. Retirement pay vs separation pay

Separation pay should not be confused with retirement pay. Separation pay is the amount due
to the employee where the cessation of employment is due to causes authorized by law (or for any of
the other causes stated above). Retirement pay, on the other hand, is the amount to be paid to the
employee who has reached the compulsory retirement age or who availed of voluntary retirement.

19. What is tripartism?

Tripartism refers to the representation of workers and employers sectors in decision and policy
making bodies of the government. Through tripartism, workers and employers on the one hand,
representing their respective interests, and the government on the other hand, representing the
interest of the public, help shape labor, social and economic policies and programs of the government.

Tripartism is in place in government agencies like the the National Labor Relations Commission
(NLRC), Employees Compensation Commission (ECC), National Wages and Productivity Commission
(NWPC), Technical Education and Skill Development Authority (TESDA), Social Security System (SSS),
Government Service Insurance System (GSIS), Philippine Overseas Employment Administration (POEA),
Overseas Workers’ Welfare Administration (OWWA) and Pag-ibig Home Development Funds (Pag-ibig).

20. Intra union vs inter union

An inter union dispute or representation dispute is one occurring or carried on between or
among unions. It refers to a case involving a petition for certification election filed by a duly registered
labor organization which is seeking to be recognized as the sole and exclusive bargaining agent of a rank
and file employees and supervisory employees, as the case may be, in the appropriate bargaining unit of
a company, firm or establishment. Broadly, an inter union dispute refers to any conflict between and
among legitimate labor unions involving representation questions for purposes of collective bargaining
or to any other conflict or dispute between legitimate labor unions.

On the other hand, an intra union dispute or internal union dispute refers to a conflict within or
inside a labor union. It is any conflict between and between and among union members, including
grievances arising from any violation of the rights and conditions of membership, violation of or
disagreement over any provision of the union’s constitution and by-laws or disputes arising from
chartering or affiliation of union. It refers to a case involving the control, supervision and management
of the internal affairs of a duly registered labor union such us those relating to specific violations of the
unions constitution and by-laws. A complaint for any violation of the constitution and by-laws and rights
and conditions of union membership under Art 241 of the labor code, may be filed in the Regional Office
where the union is domiciled.
21. Do workers have a right to join labor organization?
Yes, workers have a right to join labor organization.
One of the rights sought to be protected is the right of workers to self-organization and to form, join, or
assist labor organizations of their own choosing. (Articles 3 and 243, Labor Code) In this regard, the
Labor Code also declares as a policy of the State the fostering of a free and voluntary organization of a
strong and united labor movement. (Article 211(A)(c), Labor Code)
 Consequently, the Labor Code declares that it shall be unlawful for any person to restrain,
coerce, discriminate against or unduly interfere with employees and workers in their exercise of the
right to self-organization, which includes the right to form, join, or assist labor organizations for the
purpose of collective bargaining through representatives of their own choosing and to engage in lawful
concerted activities for the same purpose or for their mutual aid and protection. (Article 246, Labor
Code)

22. Do workers have a right not to join a labor organization?

Yes, works have a right not to join a labor organization.
The right to self-organize includes the right not to exercise such right. Freedom to associate necessarily
includes the freedom not to associate. Thus, freedom to join unions necessarily includes the freedom
not to join unions.

23. Do workers without any definite employers have the right to self-organization?
Yes, workers without definite employers have the right to self-organization.
All other workers, including ambulant, intermittent and other workers, the self-employed, rural workers
and those without any definite employers may form labor organizations for their mutual aid and
protection and other legitimate purposes except collective bargaining.

24. Who are those workers who cannot join labor organization?
The following cannot join labor organization:
A. Private sector
1. Top and middle level managerial employees;and
2. Confidential employees
B. Public sector
1. High level employees whose functions are normally considered as policy making or
managerial or whose duties are of a highly confidential nature;
2. Members of the Armed forces of the Philippines;
3. Police officers;
4. Policemen;
5. Firemen; and
6. Jail guards
C. Managerial employees who are absolutely prohibited
1. Top management
2. Middle management
3. Firs line management also called supervisory level (allowed but only among themselves)

25. May an employee whose work has ceased due to labor dispute join a strike?
An illegally dismissed employee who seeks reinstatement may join a strike.

26. Do employees of a cooperative have a right to form a union?

Yes, employees of a cooperative have a right to form a union because they have employer
employee relationship with the cooperative. Provided that the employees of the cooperative are not at
the same time members. Employee-members of a cooperative may withdraw as members of the
cooperative for purposes of joining a labor union.
27. Are labor disputes involving employees and at the same time members of a cooperative fall
under the jurisdiction of the labor arbiter?
No, labor disputes involving employees and at the same time members of a cooperative does
not fall under the jurisdiction of the labor arbiter.
The labor arbiter has jurisdiction only over monetary claims and illegal dismissal cases involving
employees of cooperatives but not the claims of termination of membership of members thereof.
Cooperatives organized under RA 6938, are composed of members; hence, issues on termination of
their membership with the cooperative do not fall within the jurisdiction of the labor arbiters.

28. Can an employer legally oppose the inclusion of confidential employees in the bargaining unit
of rank and file employees?
Yes, an employer can legally oppose the inclusion of confidential employees in the bargaining
unit of rank and file employees.
A confidential employee may be a rank-and-file or supervisory employee but because in normal course
of his duties, he becomes aware of management policies relating to labor relations, he is not allowed to
assist, form or join a rank-and-file union or supervisory union, as the case may be. His exclusion from the
bargaining unit is justified under the confidential employee rule. However, the mere access of an
employee to confidential labor relations information which is merely incidental to his duties and
therefore knowledge thereof is not necessary in the performance of said duties, does not make such
employee a confidential employee.

29. True all false: all confidential employees are disqualified to unionize for purposes of collective
bargaining?
False. Confidential employees are not absolutely prohibited from joining unions.
In Southern Philippines Federation of Labor vs Ferrer-Callejas, the inclusion of the confidential rank-and-
file employees in the bargaining unit of rank-and-file employees was upheld by the Supreme Court.
Much earlier, the High Court proclaimed in Filoil Refinery Corportation vs Filoil Supervisory and
Confidential Employees Association, that confidential rank-and-file employees may join the union of
supervisors, especially in a situation where the confidential employees are very few in number and are,
by practice and tradition, identified with the supervisors in their role as representatives of management,
vis-à-vis the rank-and-file employees.

30. How does the government employee’s right to self-organization differ from that of employee
in private sector?
These are the differences between the government employee’s right to self organization from that of
employees in the private sector:
a. Registration of employees organizations made with both civil service commission and the
bureau of labor relations of the department of the department of labor and employment. Once
registered, it is technically called a registered employees organization. In the private sector, this
is theoretically known as a legitimate labor organization.
b. The sole and exclusive bargaining union is called an accredited employees organization. In the
private sector, this is in principle known as a recognized or certified bargaining agent.
c. The unit where the government employee’s organization seeks to operate and represent is
called organizational unit. It is the employer’s unit consisting rank-and-file employees unless
circumstances otherwise require. In the private sector, this is technically known as bargaining
unit.

31. In what particular point does a the labor organization acquire legal personality?
 Article 234(c) of the Labor Code which stipulates that any applicant labor organization, association or
group of unions or workers shall acquire legal personality and shall be entitled to the rights and
privileges granted by law to legitimate labor organizations upon issuance of the certificate of
registration based on the following requirements:

a. Fifty pesos (P50.00) registration fee;

b. The names of its officers, their addresses, the principal address of the labor organization, the
minutes of the organizational meetings and the list of the workers who participated in such meetings;
c. The names of all its members comprising at least twenty percent (20%) of all the employees in the
bargaining unit where it seeks to operate;
d. If the applicant union has been in existence for one or more years, copies of its annual financial
reports; and
e. Four (4) copies of the constitution and by-laws of the applicant union, minutes of its adoption or
ratification and the list of the members who participated in it.

32. What are prohibited grounds for cancellation of union registration?

Art. 239. Grounds for cancellation of union registration. The following shall constitute grounds for
cancellation of union registration:
1. Misrepresentation, false statement 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. Failure to submit the documents mentioned in the preceding paragraph within thirty (30) days from
adoption or ratification of the constitution and by-laws or amendments thereto;

3. Misrepresentation, false statements or fraud in connection with the election of officers, minutes of
the election of officers, the list of voters, or failure to submit these documents together with the list
of the newly elected/appointed officers and their postal addresses within thirty (30) days from
election;

4. Failure to submit the annual financial report to the Bureau within thirty (30) days after the closing of
every fiscal year and misrepresentation, false entries or fraud in the preparation of the financial
report itself;

5. Acting as a labor contractor or engaging in the "cabo" system, or otherwise engaging in any activity
prohibited by law;

6. Entering into collective bargaining agreements which provide terms and conditions of employment
below minimum standards established by law;

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

8. Other than for mandatory activities under this Code, checking off special assessments or any other
fees without duly signed individual written authorizations of the members;

9. Failure to submit list of individual members to the Bureau once a year or whenever required by the
Bureau; and
10. Failure to comply with requirements under Articles 237 and 238.

33. Who may file for a petition for cancellation of union registration?
Members and officers of a labor organization (di ko sure)

34. Agree or disagree: a petition for cancellation of union registration has the effect of suspending
the proceeding of certification election
Disagree. "ART. 238-A. Effect of a Petition for Cancellation of Registration. - A petition for
cancellation of union registration shall not suspend the proceedings for certification election nor shall it
prevent the filing of a petition for certification election.

In case of cancellation, nothing herein shall restrict the right of the union to seek just and equitable
remedies in the appropriate courts."

35. Cite the role on disaffiliation.

In the absence of enforceable provisions in the federation's constitution preventing disaffiliation

of a local union, a local may sever its relationship with its parent. (People's Industrial and Commercial
Employees, March 15, 1982)

36. When is disaffiliation allowed?

Generally, a labor union may disaffiliate from the mother union to form a local or independent
union only during the 60-day freedom period immediately preceding the expiration of the CBA.

However, even before the onset of the freedom period (and despite the closed-shop provision in the
CBA between the mother union and management) disaffiliation may still be carried out, but such
disaffiliation must be effected by a majority of the members in the bargaining unit.

37. What is the Prescriptive Period on action involving funds of Labor Organization?

Any action involving the funds of the organization shall prescribe after three (3) years from the
date of submission of the annual financial report to the Department of Labor and Employment
or from the date the same should have been submitted as required by law, whichever comes
earlier: Provided, That this provision shall apply only to a legitimate labor organization which has
submitted the financial report requirements under this Code: Provided, further, that failure of
any labor organization to comply with the periodic financial reports required by law and such
rules and regulations promulgated thereunder six (6) months after the effectivity of this Act
shall automatically result in the cancellation of union registration of such labor organization; (As
amended by Section 16, Republic Act No. 6715, March 21, 1989)

38. What do you understand by the Visitorial Power of the Secretary of Labor with the Financial
Activities of the Labor Organization?
 Art. 274. Visitorial power. The Secretary of Labor and Employment or his duly authorized
representative is hereby empowered to inquire into the financial activities of legitimate labor
organizations upon the filing of a complaint under oath and duly supported by the written
consent of at least twenty percent (20%) of the total membership of the labor organization
concerned and to examine their books of accounts and other records to determine compliance
or non-compliance with the law and to prosecute any violations of the law and the union
constitution and by-laws: Provided, That such inquiry or examination shall not be conducted
during the sixty (60)-day freedom period nor within the thirty (30) days immediately preceding
the date of election of union officials. (As amended by Section 31, Republic Act No. 6715, March
21, 1989)

39. On what ground may a union be expelled from the org?

It shall be the duty of any labor organization and its officers to inform its members on the
provisions of its constitution and by-laws, collective bargaining agreement, the prevailing labor
relations system and all their rights and obligations under existing labor laws.

For this purpose, registered labor organizations may assess reasonable dues to finance labor
relations seminars and other labor education activities.

Any violation of the above rights and conditions of membership shall be a ground for
cancellation of union registration or expulsion of officers from office, whichever is appropriate.
At least thirty percent (30%) of the members of a union or any member or members specially
concerned may report such violation to the Bureau. The Bureau shall have the power to hear
and decide any reported violation to mete the appropriate penalty.

40. What is the appropriate Bargaining Unit for purposes of Collective Bargaining?

Art. 255. Exclusive bargaining representation and workers’ participation in policy and decision-
making. The labor organization designated or selected by the majority of the employees in an
appropriate collective bargaining unit shall be the exclusive representative of the employees in
such unit for the purpose of collective bargaining. However, an individual employee or group of
employees shall have the right at any time to present grievances to their employer.

Any provision of law to the contrary notwithstanding, workers shall have the right, subject to
such rules and regulations as the Secretary of Labor and Employment may promulgate, to
participate in policy and decision-making processes of the establishment where they are
employed insofar as said processes will directly affect their rights, benefits and welfare. For this
purpose, workers and employers may form labor-management councils: Provided, That the
representatives of the workers in such labor-management councils shall be elected by at least
the majority of all employees in said establishment. (As amended by Section 22, Republic Act
No. 6715, March 21, 1989)

The basic test for determining the appropriate bargaining unit is the application of a standard
whereby a unit is deemed appropriate if it affects a grouping of employees who have
substantial, mutual interests in wages, hours, working conditions, and other subjects of
 collective bargaining. We have ruled that geographical location can be completely disregarded
if the communal or mutual interests of the employees are not sacrificed.||| (Ang Lee v.
Samahang Manggagawa ng Super Lamination, G.R. No. 193816, [November 21, 2016])

41. What are the factors in determining appropriateness of bargaining unit?

Bargaining Unit
The concepts of a union and of a legitimate labor organization are different from, but
related to, the concept of a bargaining unit. We explained the concept of a bargaining unit
in San Miguel Corporation v. Laguesma, where we stated that:
A bargaining unit is a "group of employees of a given employer, comprised of all
or less than all of the entire body of employees, consistent with equity to the
employer, indicated to be the best suited to serve the reciprocal rights and
duties of the parties under the collective bargaining provisions of the law".
The fundamental factors in determining the appropriate collective bargaining
unit are: (1) the will of the employees (Globe Doctrine); (2) affinity and unity of
the employees' interest, such as substantial similarity of work and duties, or
similarity of compensation and working conditions (Substantial Mutual Interests
Rule); (3) prior collective bargaining history; and (4) similarity of employment
status.
(Sta. Lucia Commercial Corp. v. Secretary of Labor and Employment, G.R. No. 162355,
[August 14, 2009], 612 PHIL 998-1009)

42. What do you understand by one union one company policy?

The One-Union One Company Policy simply provides that there is only one union that will
represent workers in a collective bargaining with the Company.

Once again, we enunciate that the proliferation of unions in an employer unit is discouraged
as a matter of policy unless compelling reasons exist which deny a certain and distinct class
of employees the right to self-organization for purpose of collective bargaining (See General
Rubber & Footwear Corporation v. Bureau of Labor Relations, 155 SCRA 283
[1987]|||(Barbizon Philippines, Inc. v. Nagkakaisang Supervisor ng Barbizon Philippines, Inc.-
NAFLU, G.R. Nos. 113204-05, [September 16, 1996], 330 PHIL 472-493)

As clearly indicated in the aforequoted decision, the "one union — one company" rule is not
without exception. The exclusion of the subject employees from the rank-and-file bargaining
unit and the CBA is definitely a "compelling reason" for it completely deprived them of the
chance to bargain collectively with petitioner and are thus left with no recourse but to group
themselves into a separate and distinct bargaining unit and form their own
organization.||| (Barbizon Philippines, Inc. v. Nagkakaisang Supervisor ng Barbizon
Philippines, Inc.-NAFLU, G.R. Nos. 113204-05, [September 16, 1996], 330 PHIL 472-493)

43. What are the modes of representation in labor relations?

 1. Negotiations

2. Collective Bargaining

44. What are the instances that a certification election is mandatory?

Hence, the mere fact that 20% of the workers in the bargaining unit signify their support to the
petition by their written consent, it becomes mandatory on the part of the Med-Arbiter to order
the holding of a certification election in an unorganized establishment (Samahang Manggagawa
ng Pacific Mills, Inc. vs. Noriel, 134 SCRA 152). The 20% requirement, thereof, is peculiar to
petitions for certification election.||| (Philippine Association of Free Labor Unions v. Calleja, G.R.
No. 79347, [January 26, 1989], 251 PHIL 442-447)

Moreover, a perusal of Art. 258 of the Labor Code as amended by Presidential Decree No.
442 reveals that compliance with the 30% requirement (now 20%) makes it mandatory upon the
Bureau of Labor Relations to order the holding of a certification election in order to determine
the exclusive-bargaining agent of the employees. Stated otherwise, it means that with such, the
Bureau is left without any discretion but to order the holding of certification election.
Parenthetically, where the petition is supported by less than 30% (now 20%) the Bureau of
Labor Relations has discretion whether or not to order the holding
of certification election depending on the circumstances of the case.||| (Airtime Specialists, Inc.
v. Ferrer-Calleja, G.R. No. 80612-16, [December 29, 1989], 259 PHIL 1240-1247)

45. What is the effect if no certification election is filed during the freedom period?

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.||| (PICOP Resources, Inc. v. Dequilla, G.R. No. 172666, [December 7, 2011], 678 PHIL 118-
132)

46. Who may file for a petition for certification election?

Art. 257. Petitions in unorganized establishments. In any establishment where there is no

certified bargaining agent, a certification election shall automatically be conducted by the Med-
Arbiter upon the filing of a petition by a legitimate labor organization. (As amended by Section
24, Republic Act No. 6715, March 21, 1989)

Art. 258. When an employer may file petition. When requested to bargain collectively, an
employer may petition the Bureau for an election. If there is no existing certified collective
bargaining agreement in the unit, the Bureau shall, after hearing, order a certification election.
All certification cases shall be decided within twenty (20) working days.
The Bureau shall conduct a certification election within twenty (20) days in accordance with the
rules and regulations prescribed by the Secretary of Labor.
47. Enumerate the bars to certification election.

RULE VIII, Department Order No. 40-03

Section 3. When to file. - A petition for certification election may be filed anytime, except:

(a) when a fact of voluntary recognition has been entered or a valid certification, consent or run-
off election has been conducted within the bargaining unit within one (1) year prior to the filing
of the petition for certification election. Where an appeal has been filed from the order of the
Med-Arbiter certifying the results of the election, the running of the one year period shall be
suspended until the decision on the appeal has become final and executory;

(b) when the duly certified union has commenced and sustained negotiations in good faith with
the employer in accordance with Article 250 of the Labor Code within the one year period
referred to in the immediately preceding paragraph;

(c) when a bargaining deadlock to which an incumbent or certified bargaining agent is a party
had been submitted to conciliation or arbitration or had become the subject of a valid notice of
strike or lockout;

(d) when a collective bargaining agreement between the employer and a duly recognized or
certified bargaining agent has been registered in accordance with Article 231 of the Labor Code.
Where such collective bargaining agreement is registered, the petition may be filed only within
sixty (60) days prior to its expiry.

48. What are the grounds for denial of a certification election?

Article 232. Prohibition on certification election. The Bureau shall not entertain any petition for
certification election or any other action which may disturb the administration of duly registered
existing collective bargaining agreements affecting the parties except under Articles 253, 253-A
and 256 of this Code. (As amended by Section 15, Republic Act No. 6715, March 21, 1989)

49. Is it required that an employer employee exist between employer and employee in the
appropriate bargaining unit before a certification election can be ordered?

A union's right to file a petition for certification election is founded on the existence of
an employer-employee relationship. The workers whom the union intends to represent must
therefore be employees of the enterprise in which an election is sought. (C.A. Azucena, Jr., THE
LABOR CODE WITH COMMENTS AND CASES, 461 [Eighth Edition, 2013])||| (Ang Lee v.
Samahang Manggagawa ng Super Lamination, G.R. No. 193816, [November 21, 2016])

50. Are probationary employees entitled to vote in a certification election?

Airtime Specialists, Inc. v. Ferrer-Calleja holds:

 In a certification election, all rank and file employees in the appropriate
bargaining unit, whether probationary or permanent are entitled to vote. This principle
is clearly stated in Art. 255 of the Labor Code which states that the labor organization
designated or selected by the majority of the employees in an appropriate bargaining
unit shall be the exclusive representative of the employees in such unit for purposes of
collective bargaining. Collective bargaining covers all aspects of the employment
relation and the resultant CBA negotiated by the certified union binds all employees in
the bargaining unit. Hence, all rank and file employees, probationary or permanent,
have a substantial interest in the selection of the bargaining representative. The Code
makes no distinction as to their employment status as basis for eligibility in supporting
the petition for certification election. The law refers to all the employees in the
bargaining unit. All they need to be eligible to support the petition is to belong to the
bargaining unit. (Emphasis supplied)

51. How do you determine the majority vote in a certification election?

Art. 256. Representation issue in organized establishments. In organized establishments, when a

verified petition questioning the majority status of the incumbent bargaining agent is filed
before the Department of Labor and Employment within the sixty-day period before the
expiration of the collective bargaining agreement, the Med-Arbiter shall automatically order an
election by secret ballot when the verified petition is supported by the written consent of at
least twenty-five percent (25%) of all the employees in the bargaining unit to ascertain the will
of the employees in the appropriate bargaining unit. To have a valid election, at least a majority
of all eligible voters in the unit must have cast their votes. The labor union receiving the majority
of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in
the unit. When an election which provides for three or more choices results in no choice
receiving a majority of the valid votes cast, a run-off election shall be conducted between the
labor unions receiving the two highest number of votes: Provided, that the total number of
votes for all contending unions is at least fifty percent (50%) of the number of votes cast.

52. Can a no union win in a certification election?

 Yes, a “No Union” can win in a certification election. The “No Union” vote is always one of
the choices in a certification election. Where majority of the valid votes cast results in “No
Union” obtaining the majority, the Med-Arbiter shall declare such fact in the order.

53. Is the order granting the conduct of certification election appealable?

 Yes, the order granting the conduct of certification election is appealable. In accordance
with Article 259 of the Labor Code, it states that any party to an election may appeal the
order of the certification election as determined by the Med-Arbiter directly to the
Secretary of Labor and Employment on the grounds that the rules and regulations or parts
thereof established by the Secretary of Labor and Employment for the conduct of the
election have been violated. Such appeal shall be decided within fifteen (15) calendar days.

54. Is the inclusion as members of union of employees outside of the bargaining unit a ground for
cancellation of labor union?
  No, it is not. Article 245-A of the Labor Code states that the inclusion as union members of
employees outside the bargaining unit shall not be a ground for the cancellation of the
registration of the union. Rather, said employees are automatically deemed removed from
the list of membership of said union.

55. What jurisdictional pre-conditions must be present to set in motion the mechanics of
collective bargaining?
 The mechanics of collective bargaining is set in motion only when the following jurisdictional
preconditions are present, namely, (1) possession of the status of majority representation of
the employees' representative in accordance with any of the means of selection or
designation provided for by the Labor Code; (2) proof of majority representation; and (3) a
demand to bargain under Article 251, paragraph (a) of the New Labor Code.

56. Is the CBA valid and binding on all the employees in an establishment whether or not union
members?
 Yes, the CBA is valid and binding on all the employees in an establishment regardless if the
employee is a union member or not. If a non-union member belonging to an appropriate
bargaining unit of the recognized bargaining agent and pays agency fees to the union and
accepts the benefits under the collective agreement, the CBA is valid and binding to said
non-union member. On the other hand, if the non-union member is not part of the
appropriate bargaining unit of the recognized bargaining agent and is expressly excluded in
the collective agreements, the CBA is not valid and binding to him.

57. Explain the meaning of duty to bargain collectively

 The duty to bargain collectively means the performance of a mutual obligation to meet and
convene promptly and expeditiously in good faith for the purpose of negotiating an
agreement with respect to wages, hours of work and all other terms and conditions of
employment including proposals for adjusting any grievances or questions arising under
such agreement and executing a contract incorporating such agreements if requested by
either party but such duty does not compel any party to agree to a proposal or to make any
concession.
 In the absence of a collective bargaining agreement or other voluntary arrangement
providing for a more expeditious manner of collective bargaining, it shall be the duty of
employer and the representatives of the employees to bargain collectively in accordance
with the provisions of this Code.
 When there is a collective bargaining agreement, the duty to bargain collectively shall also
mean that neither party shall terminate nor modify such agreement during its lifetime.
However, either party can serve a written notice to terminate or modify the agreement at
least sixty (60) days prior to its expiration date. It shall be the duty of both parties to keep
the status quo and to continue in full force and effect the terms and conditions of the
existing agreement during the 60-day period and/or until a new agreement is reached by
the parties.

58. True or false: in the law of labor relations, the substitutionary doctrine prohibits a new
collective bargaining agent from repudiating a new CBA.
  True, the existing collective bargaining agreement (in full force and effect) must be honored
by a new exclusive bargaining representative because of the policy of stability in labor
relations between an employer and the workers.

59. What do you mean by Successor Employer Doctrine?

 Successor-Employer Doctrine involves a transfer of ownership of the business to a new
employer. Where the change of ownership is in bad faith or is used to defeat the rights of
labor, the successor-employer is deemed to have absorbed the employees and is held liable
for the transgressions of his or her predecessor.

60. Surface Bargaining vs Blue Sky Bargaining

 Surface Bargaining is defined as ―going through the motion of negotiating without any legal
intent to reach an agreement. The determination of whether a party has engaged in
unlawful surface bargaining is a question of the intent of the party in question, which can
only be inferred from the totality of the challenged party‘s conduct both at and away from
the bargaining table. It involves the question of whether an employer‘s conduct
demonstrates an unwillingness to bargain in good faith or is merely hard bargaining. On the
other hand, Blue Sky Bargaining is defined as unrealistic and unreasonable demands in
negotiations by either or both labor and management, where neither concedes anything
and demands the impossible.

61. When shall CBA commence?

 If it is the first ever CBA, the commencement shall be the date the parties agree on.
 If it is renegotiated CBA, the commencement shall depend upon the duration of conclusion.
o If it is concluded within 6 months from the expiry date, the new CBA will retroact to
the date following the expiry date
o If the renegotiated CBA is concluded beyond 6 months from the expiry date, the
matter of retroaction and effectivity is left with the parties.

62. What are the union security clauses in the CBA?

 Closed-shop Agreement – a scheme in which, by agreement between the employer and its
employees through their bargaining union/agent, no person may be employed unless he or
she is, becomes, and, for the duration of the agreement, remains a member in good
standing of the bargaining union.
 Maintenance of Membership Agreement – when employees, who are union members as of
the effective date of the agreement, or who thereafter become members, must maintain
union membership as a condition for continued employment until they are promoted or
transferred out of the bargaining unit, or the agreement is terminated.
 Union Shop Agreement – when all new regular employees are required to join the union
within a certain period as a condition for their continued employment.
 Modified Union Shop Agreement – employees under this arrangement who are not union
members at the time of the signing or execution of the CBA are not required to join the
bargaining union. However, any and all workers hired or employed after the signing or
execution of the CBA are required to join the bargaining union.
 Exclusive Bargaining Agent Agreement – the union which negotiated and concluded the CBA
with management is considered and recognized as the sole and exclusive bargaining agent
 of all the covered employees in the bargaining unit, whether they be members or not of the
said agent.
 Bargaining for Members-Only Agreement – the union which negotiated and concluded the
CBA with management is recognized as the bargaining agent only for its own members.
 Agency Shop Agreement – there is no requirement for non-members of the bargaining
agent to become its members. However, it is required that such non-union members should
pay to the bargaining agent an agency fee as a condition for their continued employment.
 Preferential Hiring Agreement – the employer gives preference in hiring to the members of
the bargaining agent under equal circumstances and qualifications. Once hired or employed,
they are required to maintain their membership in good standing in the bargaining agent for
the duration of the CBA as a condition for their continued employment.

63. Exception of closed shop agreement

 There are kinds of employees who are exempted from agreeing to this union security
agreement, namely, (a) employees who at the time the union shop agreement takes effect
are bona fide members of a religious organization which prohibits its members from joining
labor unions on religious grounds; (b) employees already in the service and already
members of a union other than the majority at the time the union shop agreement took
effect; (c) confidential employees who are excluded from the rank and file bargaining unit;
and (d) employees excluded from the union shop by express terms of the agreement.

64. Explain the theory of automatic assumption of employment contracts by surviving

corporations in a merger
 In a complete merger situation where there is total takeover by one corporation over
another and there is silence in the merger agreement on what the fate of the human
resource complement shall be, the latter should not be left in legal limbo and should be
properly provided for, by compelling the surviving entity to absorb these employees. This is
in cognizance with Section 80 of the Corporation Code which states that the surviving
corporation has the legal obligation to assume all the obligations and liabilities of the
merged constituent corporation. In a merger and consolidation situation, affected
employees cannot be treated without consideration of the applicable constitutional
declarations and directives, or, worse, be simply disregarded. If they are so treated, it is up
to the Court to read and interpret the law so that they are treated in accordance with the
legal requirements of mergers and consolidation, read in light of the social justice, economic
and social provisions of our Constitution. Hence, there is a need for the surviving
corporation to take responsibility for the affected employees and to absorb them into its
workforce where no appropriate provision for the merged corporation’s human resources
component is made in the Merger Plan.

65. How do you reconcile the compulsion implicit in a closed shop provision with the
constitutional guarantee of freedom of expression?
 The rationale for upholding the validity of union shop clauses in a CBA, even if they impinge
upon the individual employee’s right or freedom of association, is not to protect the union
for the union’s sake. Laws and jurisprudence promote unionism and afford certain
protections to the certified bargaining agent in a unionized company because a strong and
effective union presumably benefits all employees in the bargaining unit since such a union
would be in a better position to demand improved benefits and conditions of work from the
 employer. In the hierarchy of constitutional values, this Court has repeatedly held that the
right to abstain from joining a labor organization is subordinate to the policy of encouraging
unionism as an instrument of social justice.

66. Is a CBA executed pursuant to an arbitral award valid?

 Yes, it is valid since an arbitrated CBA is the result of voluntary arbitration under Art. 275 or
from the secretary’s assumption of jurisdiction or certification under Art. 278 (g). In the
absence of an agreement between the parties, an arbitrated CBA takes on the nature of any
judicial or quasi-judicial award. It operates and may be executed only prospectively unless
there are legal justifications for its retroactive application. On the other hand, when the CBA
is only part of an arbitral award, it may be made retroactive to the date of expiration of the
previous agreement.

67. When do renegotiated CBA take effect prospectively or retrospectively?

 If it is concluded within 6 months from the expiry date, the new CBA will retroact to the date
following the expiry date
 If the renegotiated CBA is concluded beyond 6 months from the expiry date, the matter of
retroaction and effectivity is left with the parties.

68. When may the effectivity of the CBA be suspended?

 The effectivity of the CBA may be suspended when there is a severe financial situation faced
by the employer, and there is a need to suspend the effectivity of the CBA with the peculiar
and unique intention of not merely promoting industrial peace, but preventing the closure
of the employer’s business. The right to free collective bargaining, after all, includes the
right to suspend it.

69. What do you understand by run way shop?

A runaway shop is defined as 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.It is one wherein the employer moves its business to another location or it temporarily
closes its business for anti-union purposes. A runaway shop in this sense, is a relocation motivated by
anti-union animus rather than for business reasons.

70. Is refusal to bargain collectively for a closed shop stipulation a ULP? Definition of closed shop
A “closed-shop” may be defined as a scheme in which, by agreement between the employer and
its employees through their bargaining union/agent, no person may be employed unless he or she is,
becomes, and, for the duration of the agreement, remains a member in good standing of the bargaining
union. Basically, this kind of agreement stipulates the undertaking by the employer not to hire or
employ any person who is not a member of the bargaining union. Once employed, it is required that the
said person should remain a member of the bargaining union in good standing as a condition for
continued employment, at least during the whole duration of the CBA.

Read BANK OF PHILIPPINE ISLANDS v. BPI EMPLOYEES UNION-DAVAO CHAPTER FEDERATION OF UNIONS
IN BPI UNIBANK (AUG 2010)
71. When is compulsory arbitration become voluntary arbitration? 290 scra 690

Art 250(e) of the Labor Code provides that if effects of conciliation fail, the NCMB shall
encourage the parties to submit their case to a voluntary arbitrator. With specific reference to cases
involving deadlocks in collective bargaining, Art. 262 provides:

The Voluntary Arbitrator or panel of Voluntary Arbitrators, upon agreement of the parties, shall also
hear and decide all other labor disputes including unfair labor practices and bargaining deadlocks.

This is what the parties did in the case of MANILA CENTRAL LINE CORPORATION, petitioner, vs. MANILA
CENTRAL LINE FREE WORKERS UNION-NATIONAL FEDERATION OF LABOR and the NATIONAL LABOR
RELATIONS COMMISSION. After the Board failed to resolve the bargaining deadlock between parties,
the union filed a petition for compulsory arbitration in the Arbitration Branch of the NLRC. Petitioner
joined the petition and the case was submitted for decision. Although the unions petition was for
compulsory arbitration, the subsequent agreement of petitioner to submit the matter for arbitration in
effect made the arbitration a voluntary one. The essence of voluntary arbitration, after all is that it is by
agreement of the parties, rather than compulsion of law, that a matter is submitted for arbitration. It
does not matter that the person chosen as arbitrator is a labor arbiter who, under Art 217 of the Labor
Code, is charged with the compulsory arbitration of certain labor cases. There is nothing in the law that
prohibits these labor arbiters from also acting as voluntary arbitrators as long as the parties agree to
have him hear and decide their dispute.

72. Can a dispute falling under the jurisdiction of LA be submitted for voluntary arbitration?

Under Article 262 of the Labor Code, upon agreement of the parties, the Voluntary Arbitrator or
panel of Voluntary Arbitrators may also hear and decide all other labor disputes, including unfair labor
practices and bargaining deadlocks. For this purpose, before or at any stage of the compulsory
arbitration process, parties to a labor dispute may agree to submit their case to voluntary arbitration.

73. Is termination dispute a grievable issue?

Termination of employment is not a grievable issue that must be submitted to the grievance
machinery or voluntary arbitration for adjudication. The jurisdiction thereover remains within the
original and exclusive ambit of the Labor Arbiter and not of the Voluntary Arbitrator. Even if the CBA
provides that termination disputes are grievable, the same is merely discretionary on the part of the
parties thereto. Once there is actual termination, jurisdiction is conferred upon Labor Arbiters by
operation of law. Interpretation of CBA and enforcement of company personnel policies are merely
corollary to an illegal dismissal case. The Voluntary Arbitrator will only have jurisdiction over illegal
dismissal cases when there is express agreement of the parties to the CBA, i.e., the employer and the
bargaining agent, to submit the termination case to voluntary arbitration. Absent the mutual express
agreement of the parties, Voluntary Arbitrator cannot acquire jurisdiction over termination
cases. The express agreement must be stated in the CBA or there must be enough evidence on record
unmistakably showing that the parties have agreed to resort to voluntary arbitration

74. What is the principle of co determination?

 The principle of co-determination refers to the right given to the employees to participate in
policy and decision-making processes that affect their rights, benefits and welfare

75. Requisites of a valid strike

The following are the requisites for a valid strike:

It must be based on a valid and factual ground;

A notice of strike must be filed with the NCMB-DOLE;

A notice must be served to the NCMB-DOLE at least twenty-four (24) hours prior to the taking of the
strike vote by secret balloting, informing said office of the decision to conduct a strike vote, and the
date, place, and time thereof;

A strike vote must be taken where a majority of the members of the union obtained by secret ballot in a
meeting called for the purpose, must approve it;

A strike vote report should be submitted to the NCMB-DOLE at least seven (7) days before the intended
date of the strike;

Except in cases of union-busting, the cooling-off period of 15 days, in case of unfair labor practices of the
employer, or 30 days, in case of collective bargaining deadlock, should be fully observed; and

The 7-day waiting period/strike ban reckoned after the submission of the strike vote report to the
NCMB-DOLE should also be fully observed in all cases.

76. Who may declare a strike or lockout? On what grounds?

Only a legitimate labor organization may declare a strike. For obvious reason, the employer cannot. As
to the personality of the union, the following requirements should be shown before a strike may be
validly declared and staged:

a. The union should be legitimate. A strike conducted by a union which has not been shown to be a
legitimate labor organization is illegal.

2. Inorganizedestablishmentwheret hereisacertifiedbargainingagen t,
onlytherecognizedorcertifiedco llective bargaining union can validly stage a strike. A minority
union cannot stage a strike. A strike conducted by a minority union is patently illegal
because no labor dispute which will justify the conduct of a strike may exist between the
employer and a minority union. To permit the union’s picketing activities would be to flaunt
at the will of the majority.
3. In unorganized establishment where there is no certified bargaining agent,
any legitimate labor organization in the establishment may declare a strike but only on the
ground of unfair labor practice. The only other ground of bargaining deadlock cannot be
invoked in support of a strike in an unorganized establishment for the simple reason that no
CBA can be negotiated and concluded absent such recognized or certified collective
bargaining agent. In this situation, the existence of a bargaining deadlock is an impossibility.
 WHO MAY DECLARE A LOCKOUT?

Only the employer can declare and stage a lockout. For obvious reason, no union can.

The employer may declare a lockout based on any of the two (2) grounds that may similarly
be invoked by the union in staging a strike, i.e., (1) bargaining deadlock; and/or (2) unfair
labor practice.

77. When may economic strike convert to ulp strike?

A strike declared for the purpose of demanding higher benefits from the employer for which he
is not required by law to grant may be converted into a political strike when the employer commits
unfair labor practice that makes the strike last longer than it would have if limited to the economic
objectives that began it.

78. WHEN IS A STRIKE CONSIDERED ILLEGAL? Can a strike be prohibited?

1. A strike is illegal if it is declared and staged:

1. 1) Without complying with the procedural but mandatory requisites (See 7
requisites above).
2. 2) For unlawful purpose such as to compel the dismissal of an employee or to
force recognition of the union or for

trivial and puerile purpose or to circumvent contracts and judicial orders.

3. 3) Based on non-strikeable or invalid grounds such as:

a) Inter-unionorintra- uniondisputes.

b) Simple violation of CBA in contrast to gross violation thereof which is deemed ULP. c)
Violationoflaborstandards.
d) Legislated wage orders (wage distortion).

4. 4) Without first having bargained co llectively.

5. 5) In violation of the “no strike, no lockout” clause in the CBA.
6. 6) Without submitting the issues to the grievance machinery or voluntary arbitration
or failing to exhaust the steps

provided therein.

7. 7) While conciliation and mediation proceeding is on-going at the NCMB.

8. 8) Based on issues already brought to voluntary or compulsory arbitration.
9. 9) During the pendency of a case involving the same ground/s cited in the notice of
strike.
10. 10) In defiance of an assumption or certification or return-to-work order.
11. 11) In violation of a temporary restraining order or an injunction order.
12. 12) After the conversion of the notice of strike into a preventive mediation case.
13. 13) Against the prohibition by law.
 14. 14) By a minority union.
15. 15) By an illegitimate union.
16. 16) By dismissed employees.
17. 17) In violation of the company code of conduct which prohibits “inciting or
participating in riots, disorders, alleged

strikes or concerted actions detrimental to [Toyota’s] interest,” The penalty for which
is dismissal.

18. 18) As protest rallies in front of government offices such as in the following cases:

Toyota Motor Phils. Corp. Workers Association [TMPCWA] v. NLRC,3 where the
Supreme Court ruled that the protest rallies staged by the employees from February
21 to 23, 2001 in front of the offices of the Bureau of Labor Relations (BLR) and the
DOLE Secretary constitute illegal strike and not legitimate exercise of their right to
peaceably assemble and petition the government for redress of grievances. It was
illegal for having been undertaken without satisfying the mandatory pre-requisites for
a valid strike under Article 263 of the Labor Code.

The ruling in Toyota was cited in Solidbank Corporation v. Gamier, 4 as basis in

declaring the protest action of the employees of petitioner Solidbank which was
staged in front of the Office of the DOLE Secretary in Intramuros, Manila, as
constitutive of illegal strike since it paralyzed the operations of the bank. The protest
action in this case was conducted because of the CBA deadlock.

19. 19) As welga ng bayan which is in the nature of a general strike as well as an
extended sympathy strike

79. In a labor dispute, the secretary of labor issued an assumption order. Give the legal implications of
such order.
When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in
an industry indispensable to the national interest, the Secretary of Labor and Employment may assume
jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory
arbitration. Such assumption or certification shall have the effect of automatically enjoining the
intended or impending strike or lockout as specified in the assumption or certification order. If one has
already taken place at the time of assumption or certification, all striking or locked out employees shall
immediately return-to-work and the employer shall immediately resume operations and readmit all
workers under the same terms and conditions prevailing before the strike or lockout. The Secretary of
Labor and Employment or the Commission may seek the assistance of law enforcement agencies to
ensure compliance with this provision as well as with such orders as he may issue to enforce the same.

80. Effect of conversion of a notice of strike to preventive mediation by the ncmb

The conversion of a notice of strike to preventive mediation by the NCMB results to the legal
effect that there is absence of notice of strike and thus, there can be no legal strike thereafter to speak
of. When the NCMB orders the preventive mediation, the union loses its notice of strike it had filed.
Article 264 of the Labor Code explicitly states that a declaration of strike without first having filed the
required notice is a prohibited activity.
 81. What is the purpose and means test in holding a strike?

It is a legal strike if it was called for a valid purpose and conducted through means allowed by law.

82. Whether or not a one morning sit down or one day work absent is a strike? 139 scra 478
(Pwede magpaclarify ko sa question, a strike ra or illegal strike? Weird if "strike" ra ang question.) read
the case 139 scra 478. A one morning sit down strike is nonetheless a strike except when the workers on
the strike were still paid their daily wage for that day despite being on said strike and such meeting was
done to collectively bargain with the employer.

83. What is the rule on anti injunction policy?

As a general rule, strikes and lockouts that are validly declared enjoy the protection of the law and
cannot be enjoined unless illegal acts are committed or threatened to be committed in the course
thereof. In the case of strikes, this policy applies even if the strike appears to be illegal in nature. The
rationale for this policy is the protection extended to the right to strike under the Constitution and the
law. It is basically treated as a weapon that the law guarantees to employees for the advancement of
their interest and for their protection.

84-86.
When may an injunction be issued by the nlrc in connection with strike and by the ca on same issue?
When is innocent bystander or 3rd party be entitle for issuance of an injuction?
8What are the conditions of the issuance of TRO by nlrc be ex parte?
Art. 218. Powers of the Commission. The Commission shall have the power and authority:
a. To promulgate rules and regulations governing the hearing and disposition of cases before it and its
regional branches, as well as those pertaining to its internal functions and such rules and regulations
as may be necessary to carry out the purposes of this Code; (As amended by Section 10, Republic
Act No. 6715, March 21, 1989)

b. To administer oaths, summon the parties to a controversy, issue subpoenas requiring the
attendance and testimony of witnesses or the production of such books, papers, contracts, records,
statement of accounts, agreements, and others as may be material to a just determination of the
matter under investigation, and to testify in any investigation or hearing conducted in pursuance of
this Code;

c. To conduct investigation for the determination of a question, matter or controversy within its
jurisdiction, proceed to hear and determine the disputes in the absence of any party thereto who
has been summoned or served with notice to appear, conduct its proceedings or any part thereof in
public or in private, adjourn its hearings to any time and place, refer technical matters or accounts
to an expert and to accept his report as evidence after hearing of the parties upon due notice, direct
parties to be joined in or excluded from the proceedings, correct, amend, or waive any error, defect
or irregularity whether in substance or in form, give all such directions as it may deem necessary or
expedient in the determination of the dispute before it, and dismiss any matter or refrain from
further hearing or from determining the dispute or part thereof, where it is trivial or where further
 proceedings by the Commission are not necessary or desirable; and

d. To hold any person in contempt directly or indirectly and impose appropriate penalties therefor in
accordance with law.

A person guilty of misbehavior in the presence of or so near the Chairman or any member of the
Commission or any Labor Arbiter as to obstruct or interrupt the proceedings before the same,
including disrespect toward said officials, offensive personalities toward others, or refusal to be
sworn, or to answer as a witness or to subscribe an affidavit or deposition when lawfully required to
do so, may be summarily adjudged in direct contempt by said officials and punished by fine not
exceeding five hundred pesos (P500) or imprisonment not exceeding five (5) days, or both, if it be
the Commission, or a member thereof, or by a fine not exceeding one hundred pesos (P100) or
imprisonment not exceeding one (1) day, or both, if it be a Labor Arbiter.

The person adjudged in direct contempt by a Labor Arbiter may appeal to the Commission and the
execution of the judgment shall be suspended pending the resolution of the appeal upon the filing
by such person of a bond on condition that he will abide by and perform the judgment of the
Commission should the appeal be decided against him. Judgment of the Commission on direct
contempt is immediately executory and unappealable. Indirect contempt shall be dealt with by the
Commission or Labor Arbiter in the manner prescribed under Rule 71 of the Revised Rules of Court;
and (As amended by Section 10, Republic Act No. 6715, March 21, 1989)

e. To enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts
or to require the performance of a particular act in any labor dispute which, if not restrained or
performed forthwith, may cause grave or irreparable damage to any party or render ineffectual any
decision in favor of such party: Provided, That no temporary or permanent injunction in any case
involving or growing out of a labor dispute as defined in this Code shall be issued except after
hearing the testimony of witnesses, with opportunity for cross-examination, in support of the
allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and
only after a finding of fact by the Commission, to the effect:

1. That prohibited or unlawful acts have been threatened and will be committed and will be continued
unless restrained, but no injunction or temporary restraining order shall be issued on account of any
threat, prohibited or unlawful act, except against the person or persons, association or organization
making the threat or committing the prohibited or unlawful act or actually authorizing or ratifying
the same after actual knowledge thereof;

2. That substantial and irreparable injury to complainant’s property will follow;

3. That as to each item of relief to be granted, greater injury will be inflicted upon complainant by the
denial of relief than will be inflicted upon defendants by the granting of relief;

4. That complainant has no adequate remedy at law; and

5. That the public officers charged with the duty to protect complainant’s property are unable or
unwilling to furnish adequate protection.
Such hearing shall be held after due and personal notice thereof has been served, in such manner as
the Commission shall direct, to all known persons against whom relief is sought, and also to the
Chief Executive and other public officials of the province or city within which the unlawful acts have
been threatened or committed, charged with the duty to protect complainant’s property: Provided,
however, that if a complainant shall also allege that, unless a temporary restraining order shall be
issued without notice, a substantial and irreparable injury to complainant’s property will be
unavoidable, such a temporary restraining order may be issued upon testimony under oath,
sufficient, if sustained, to justify the Commission in issuing a temporary injunction upon hearing
after notice. Such a temporary restraining order shall be effective for no longer than twenty (20)
days and shall become void at the expiration of said twenty (20) days. No such temporary
restraining order or temporary injunction shall be issued except on condition that complainant shall
first file an undertaking with adequate security in an amount to be fixed by the Commission
sufficient to recompense those enjoined for any loss, expense or damage caused by the improvident
or erroneous issuance of such order or injunction, including all reasonable costs, together with a
reasonable attorney’s fee, and expense of defense against the order or against the granting of any
injunctive relief sought in the same proceeding and subsequently denied by the Commission.

The undertaking herein mentioned shall be understood to constitute an agreement entered into by
the complainant and the surety upon which an order may be rendered in the same suit or
proceeding against said complainant and surety, upon a hearing to assess damages, of which
hearing, complainant and surety shall have reasonable notice, the said complainant and surety
submitting themselves to the jurisdiction of the Commission for that purpose. But nothing herein
contained shall deprive any party having a claim or cause of action under or upon such undertaking
from electing to pursue his ordinary remedy by suit at law or in equity: Provided, further, That the
reception of evidence for the application of a writ of injunction may be delegated by the
Commission to any of its Labor Arbiters who shall conduct such hearings in such places as he may
determine to be accessible to the parties and their witnesses and shall submit thereafter his
recommendation to the Commission. (As amended by Section 10, Republic Act No. 6715, March 21,
1989)