Labor Relations Rights and Organizations

Labor Relations (Finals Coverage, source: Azucena, cases), mary 2012 _________________________________________________________________________
TOPIC 12: RIGHT TO SELF ORGANIZATION

SAN MIGUEL CORPORATION (MANDAUE PACKAGING PRODUCTS PLANTS), petitioner, vs. MANDAUE PACKING PRODUCTS PLANTSSAN PACKAGING PRODUCTS SAN MIGUEL CORPORATION MONTHLIES RANK-AND-FILE UNION FFW (MPPP-SMPPSMAMRFU-FFW), respondent. G.R. No. 152356. August 16, 2005 It is evident based on this rule that the local/chapter acquires legal personality from the date of the filing of the complete documentary requirements, and not from the issuance of a certification to such effect by the Regional Office or Bureau. On the other hand, a labor organization is deemed to have acquired legal personality only on the date of issuance of its certificate of registration, which takes place only after the Bureau of Labor Relations or its Regional Offices has undertaken an evaluation process lasting up until thirty (30) days, within which period it approves or denies the application. In contrast, no such period of evaluation is provided in Department Order No. 9 for the application of a local/chapter, and more importantly, under it such local/chapter is deemed to acquire legal personality from the date of filing of the documents enumerated under Section 1, Rule VI, Book V. Apart from promoting a policy of affiliation of local unions with national unions, there is a practical reason for sanctioning a less onerous procedure for the registration of a local/chapter, as compared to the national union. The local/chapter relies in part on the legal personality of the federation or national union, which in turn, had already undergone evaluation and approval from the Bureau of Legal Relations or Regional Office. In fact, a federation or national union is required, upon registration, to establish proof of affiliation of at least ten (10) locals or chapters which are duly recognized as the collective bargaining agent in the establishment or industry in which they operate; and the names and addresses of the companies where the locals or chapters operate and the list of all the members in each of the companies. Once the national union or federation acquires legal personality upon the issuance of its certificate or registration, its legal personality cannot be subject to collateral attack. The fact that the local/chapter acquires legal personality from the moment the complete documentary requirements are submitted seems to imply that the duty of the Bureau or Regional Office to register the ministerial. In the ordinary course, it should have been FFW, and not respondent, which should have submitted the subject documents to the Regional Office. Nonetheless, there is no good reason to deny legal personality or defer its conferral to the local/chapter if it is evident at the onset that the federation or national union itself has already through its own means established the local/chapter. Under the law, a managerial employee is one who is vested with powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, layoff, recall, discharge, assign or discipline employees. A supervisory employee is one who, in the interest of the employer, effectively recommends managerial actions if the exercise of such recommendatory authority is not merely routinary or clerical in nature but requires the use of independent judgment. Finally, all employees not falling within the definition of managerial or supervisory employee are considered rank-and-file employees. It is also wellsettled that the actual functions of an employee, not merely his job title, are determinative in classifying such employee as managerial, supervisory or rank and file. local/chapter is merely
Labor Relations (Finals Coverage, source: Azucena, cases), mary 2012 _________________________________________________________________________ In the case of Emmanuel Rossell, appellants evidence shows that he undertakes the filling out of evaluation reports on the performance of mechanics, which in turn are used as basis for reclassification. Given a ready and standard form to accomplish, coupled with the nature of the evaluation, it would appear that his functions are more routinary than recommendatory and hardly leave room for independent judgment. In the case of Noel Bathan, appellants evidence does not show his job title although it shows that his recommendations on disciplinary actions appear to have carried some weight on higher management. On this limited point, he may qualify as a supervisory employee within the meaning of the law. This may, however, be outweighed by his other functions which are not specified in the evidence. GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS) and WINSTON F. GARCIA, in his capacity as GSIS President & General Manager, Petitioners, - versus - KAPISANAN NG MGA MANGGAGAWA SA GSIS, Respondent. G.R. No. 170132 December 6, 2006 The Constitution itself qualifies its exercise with the provision in accordance with law. This is a clear manifestation that the state may, by law, regulate the use of this right, or even deny certain sectors such right. Executive Order 180 which provides guidelines for the exercise of the right of government workers to organize, for instance, implicitly endorsed an earlier CSC circular which enjoins under pain of administrative sanctions, all government officers and employees from staging strikes, demonstrations, mass leaves, walkouts and other forms of mass action which will result in temporary stoppage or disruption of public service by stating that the Civil Service law and rules governing concerted activities and strikes in government service shall be observed. The settled rule in this jurisdiction is that employees in the public service may not engage in strikes, mass leaves, walkouts, and other forms of mass action that will lead in the temporary stoppage or disruption of public service. The right of government employees to organize is limited to the formation of unions or associations only, without including the right to strike, adding that public employees going on disruptive unauthorized absences to join concerted mass actions may be held liable for conduct prejudicial to the best interest of the service. The phrase prohibited concerted activity refers to any collective activity undertaken by government employees, by themselves or through their employees organization, with the intent of effecting work stoppage or service disruption in order to realize their demands or force concessions, economic or otherwise; it includes mass leaves, walkouts, pickets and acts of similar nature. Diokno vs. Cacdac, GR No. 168475, July 4, 2007 ART. 226. BUREAU OF LABOR RELATIONS. The Bureau of Labor Relations and the Labor Relations Divisions in the regional offices of the Department of Labor shall have original and exclusive authority to act, at their own initiative or upon request of either or both parties, on all inter-union and intra-union conflicts, and all disputes, grievances or problems arising from or affecting labor-management relations in all workplaces whether agricultural or nonagricultural, except those arising from the implementation or interpretation of collective bargaining agreements which shall be the subject of grievance procedure and/or voluntary arbitration. As defined, an intra-union conflict would refer to a conflict within or inside a labor union, while an inter-union controversy or dispute is one occurring or carried on between or among unions. More specifically, an intra-union dispute is defined under Section (z), Rule I of the Rules Implementing Book V of the Labor Code, viz: (z) Intra-Union Dispute refers to any conflict between and among union members, and includes all disputes or grievances arising from any violation of or disagreement
Labor Relations (Finals Coverage, source: Azucena, cases), mary 2012 _________________________________________________________________________ over any provision of the constitution and by-laws of a union, including cases arising from chartering or affiliation of labor organizations or from any violation of the rights and conditions of union membership provided for in the Code. The controversy in the case at bar is an intra-union dispute.There is no question that this is one which involves a dispute within or inside FLAMES, a labor union.At issue is the propriety of the disqualification of private respondents Daya, et al., by the FLAMES COMELEC in the 7 May 2003 elections.It must also be stressed that even as the dispute involves allegations that private respondents Daya, et al., sought the help of non-members of the union in their election campaign to the detriment of FLAMES, the same does not detract from the real character of the controversy.It remains as one which involves the grievance over the constitution and bylaws of a union, and it is a controversy involving members of the union.Moreover, the non-members of the union who were alleged to have aided private respondents Daya, et al., are not parties in the case.We are, therefore, unable to understand petitioners persistence in placing the controversy outside of the jurisdiction of the BLR.The law is very clear. It requires no further interpretation.The Petition which was initiated by private respondents Daya, et al., before the BLR was properly within its cognizance, it being an intra-union dispute. Indubitably, when private respondents Daya, et al.,brought the case to the BLR, it was an invocation of the power and authority of the BLR to act on an intra-union conflict. SMC Employees Union-PTGWO vs. San Miguel Packaging Products Employees Union GR No. 171153, September 12, 2007 A legitimate labor organization is defined as "any labor organization duly registered with the Department of Labor and Employment, and includes any branch or local thereof." The mandate of the Labor Code is to ensure strict compliance with the requirements on registration because a legitimate labor organization is entitled to specific rights under the Labor Code, and are involved in activities directly affecting matters of public interest. Registration requirements are intended to afford a measure of protection to unsuspecting employees who may be lured into joining unscrupulous or fly-by-night unions whose sole purpose is to control union funds or use the labor organization for illegitimate ends. Legitimate labor organizations have exclusive rights under the law which cannot be exercised by non-legitimate unions, one of which is the right to be certified as the exclusive representative of all the employees in an appropriate collective bargaining unit for purposes of collective bargaining. The acquisition of rights by any union or labor organization, particularly the right to file a petition for certification election, first and foremost, depends on whether or not the labor organization has attained the status of a legitimate labor organization. The procedure for registration of a local or chapter of a labor organization is provided in Book V of the Implementing Rules of the Labor Code. The applicable Implementing Rules enunciates a two-fold procedure for the creation of a chapter or a local. The first involves the affiliation of an independent union with a federation or national union or industry union. The second, finding application in the instant petition, involves the direct creation of a local or a chapter through the process of chartering. A duly registered federation or national union may directly create a local or chapter by submitting to the DOLE Regional Office or to the BLR two copies of the following: (a) A charter certificate issued by the federation or national union indicating the creation or establishment of the local/chapter;
Labor Relations (Finals Coverage, source: Azucena, cases), mary 2012 _________________________________________________________________________ (b) The names of the local/chapter's officers, their addresses, and the principal office of the local/chapter; and (c) The local/chapter's constitution and by-laws; Provided, That where the local/chapter's constitution and by-laws is the same as that of the federation or national union, this fact shall be indicated accordingly. All the foregoing supporting requirements shall be certified under oath by the Secretary or the Treasurer of the local/chapter and attested to by its President. The Implementing Rules stipulate that a local or chapter may be directly created by a federation or national union. A duly constituted local or chapter created in accordance with the foregoing shall acquire legal personality from the date of filing of the complete documents with the BLR. The issuance of the certificate of registration by the BLR or the DOLE Regional Office is not the operative act that vests legal personality upon a local or a chapter under Department Order No. 9. Such legal personality is acquired from the filing of the complete documentary requirements enumerated in Section 1, Rule VI. Article 234 of the Labor Code provides that an independent labor organization acquires legitimacy only upon its registration with the BLR: 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. (Italics supplied.) It is emphasized that the foregoing pertains to the registration of an independent labor organization, association or group of unions or workers. However, the creation of a branch, local or chapter is treated differently. when an unregistered union becomes a branch, local or chapter, some of the aforementioned requirements for registration are no longer necessary or compulsory. Whereas an applicant for registration of an independent union is mandated to submit, among other things, the number of employees and names of all its members comprising at least 20% of the employees in the bargaining unit where it seeks to operate, as provided under Article 234 of the Labor Code and Section 2 of Rule III, Book V of the Implementing Rules, the same is no longer required of a branch, local or chapter. The intent of the law in imposing less requirements in the case of a branch or local of a registered federation or national union is to encourage the affiliation of a local union with a federation or national union in order to increase the local union's bargaining powers respecting terms and conditions of labor.
Labor Relations (Finals Coverage, source: Azucena, cases), mary 2012 _________________________________________________________________________ This Court had, indeed, on several occasions, pronounced that registration based on false and fraudulent statements and documents confer no legitimacy upon a labor organization irregularly recognized, which, at best, holds on to a mere scrap of paper. Under such circumstances, the labor organization, not being a legitimate labor organization, acquires no rights. This Court emphasizes, however, that a direct challenge to the legitimacy of a labor organization based on fraud and misrepresentation in securing its certificate of registration is a serious allegation which deserves careful scrutiny. Anent the foregoing, as has been held in a long line of cases, the legal personality of a legitimate labor organization, such as PDMP, cannot be subject to a collateral attack. The law is very clear on this matter. Article 212 (h) of the Labor Code, as amended, defines a legitimate labor organization as "any labor organization duly registered with the DOLE, and includes any branch or local thereof." On the other hand, a trade union center is any group of registered national unions or federations organized for the mutual aid and protection of its members; for assisting such members in collective bargaining; or for participating in the formulation of social and employment policies, standards, and programs, and is duly registered with the DOLE in accordance with Rule III, Section 2 of the Implementing Rules. The Implementing Rules stipulate that a labor organization shall be deemed registered and vested with legal personality on the date of issuance of its certificate of registration. Once a certificate of registration is issued to a union, its legal personality cannot be subject to collateral attack. It may be questioned only in an independent petition for cancellation in accordance with Section 5 of Rule V, Book V of the Implementing Rules. The aforementioned provision is enunciated in the following: Sec. 5.Effect of registration. The labor organization or workers' association shall be deemed registered and vested with legal personality on the date of issuance of its certificate of registration. Such legal personality cannot thereafter be subject to collateral attack, but may be questioned only in an independent petition for cancellation in accordance with these Rules. Once a union acquires legitimate status as a labor organization, it continues to be recognized as such until its certificate of registration is cancelled or revoked in an independent action for cancellation. It bears to emphasize that what is being directly challenged is the personality of respondent as a legitimate labor organization and not that of PDMP. This being a collateral attack, this Court is without jurisdiction to entertain questions indirectly impugning the legitimacy of PDMP. After an exhaustive study of the governing labor law provisions, both statutory and regulatory, we find no legal justification to support the conclusion that a trade union center is allowed to directly create a local or chapter through chartering. Incidentally, the term trade union center was never mentioned under Presidential Decree No. 442, even as it was amended by Republic Act No. 6715. The term trade union center was first adopted in the Implementing Rules, under Department Order No. 9.
Labor Relations (Finals Coverage, source: Azucena, cases), mary 2012 _________________________________________________________________________ trade union center is any group of registered national unions or federations organized for the mutual aid and protection of its members; for assisting such members in collective bargaining; or for participating in the formulation of social and employment policies, standards, and programs, and is duly registered with the DOLE in accordance with Rule III, Section 2 of the Implementing Rules. Evidently, while a "national union" or "federation" is a labor organization with at least ten locals or chapters or affiliates, each of which must be a duly certified or recognized collective bargaining agent; a trade union center, on the other hand, is composed of a group of registered national unions or federations. The Implementing Rules, as amended by Department Order No. 9, provide that "a duly registered federation or national union" may directly create a local or chapter. The provision reads: Section 1. Chartering and creation of a local/chapter. A duly registered federation or national union may directly create a local/chapter by submitting to the Regional Office or to the Bureau two (2) copies of the following: (a) A charter certificate issued by the federation or national union indicating the creation or establishment of the local/chapter; (b) The names of the local/chapter's officers, their addresses, and the principal office of the local/chapter; and (c) The local/chapter's constitution and by-laws; provided that where the local/chapter's constitution and by-laws is the same as that of the federation or national union, this fact shall be indicated accordingly. All the foregoing supporting requirements shall be certified under oath by the Secretary or the Treasurer of the local/chapter and attested to by its President. Department Order No. 9 mentions two labor organizations either of which is allowed to directly create a local or chapter through chartering a duly registered federation or a national union. Department Order No. 9 defines a "chartered local" as a labor organization in the private sector operating at the enterprise level that acquired legal personality through a charter certificate, issued by a duly registered federation or national union and reported to the Regional Office in accordance with Rule III, Section 2-E of these Rules. Article 234 now includes the term trade union center, but interestingly, the provision indicating the procedure for chartering or creating a local or chapter, namely Article 234-A, still makes no mention of a "trade union center." Also worth emphasizing is that even in the most recent amendment of the implementing rules, there was no mention of a trade union center as being among the labor organizations allowed to charter. This Court deems it proper to apply the Latin maxim expressio unius est exclusio alterius. Under this maxim of statutory interpretation, the expression of one thing is the exclusion of another. Expressium facit cessare tacitum. What is expressed puts an end to what is implied. Casus omissus pro omisso habendus est. A person, object or thing omitted must have been omitted intentionally. Therefore, since under the pertinent status and applicable implementing rules, the
Labor Relations (Finals Coverage, source: Azucena, cases), mary 2012 _________________________________________________________________________ power granted to labor organizations to directly create a chapter or local through chartering is given to a federation or national union, then a trade union center is without authority to charter directly. It has been observed that the formation of a local or chapter becomes a handy tool for the circumvention of union registration requirements. Absent the institution of safeguards, it becomes a convenient device for a small group of employees to foist a not-so-desirable federation or union on unsuspecting coworkers and pare the need for wholehearted voluntariness, which is basic to free unionism. As a legitimate labor organization is entitled to specific rights under the Labor Code and involved in activities directly affecting public interest, it is necessary that the law afford utmost protection to the parties affected. In sum, although PDMP as a trade union center is a legitimate labor organization, it has no power to directly create a local or chapter. Thus, SMPPEU-PDMP cannot be created under the more lenient requirements for chartering, but must have complied with the more stringent rules for creation and registration of an independent union, including the 20% membership requirement. DONG SEUNG INCORPORATED, vs. BUREAU OF LABOR RELATIONS,HANS LEO J. CACDAC, Director and NAMAWU Local 188 Dong Seung Workers Union, Respondents. G.R. No. 162356, April 14, 2008 Art. 235. Action on application. The Bureau shall act on all applications for registration within thirty (30) days from filing. All requisite documents and papers shall be certified under oath by the secretary or the treasurer of the organization, as the case may be, and attested to by its president. 5. BLR Reg. Form No. 5-LOC-LO. S. 1998 For Chartering Locals/ Chapters x x x x Part I of each of the first seven forms is a space provided for the notarization of the application x x x. However, considering that applicants are not yet fully familiar with the forms in spite of orientation and seminar conducted, some applications have been submitted without using the forms prescribed by the Bureau. In lieu of submitting a notarized application using the official forms, some applicants comply with the requirements by having their supporting documents separately notarized. To prevent inconvenience to the public, particularly to the applicants, the Regional Offices are hereby advised that applications submitted with supporting documents which are separately notarized need not comply with the notarization requirement under Part I or Part II, as the case may be, of the prescribed forms. x x x Accordingly, the absence of notarization under Part I or Part II of the appropriate forms shall not be a basis for denying applications where it appears that all the required supporting documents have already been notarized or attested. (Emphasis supplied) The BLR explained that under the foregoing Advisory, the certification The requirement that the union secretary certify under oath all documents and papers filed in support of an application for union registration is imposed by Article 235 of the Labor Code, to wit:
Labor Relations (Finals Coverage, source: Azucena, cases), mary 2012 _________________________________________________________________________ issued by respondent unions secretary may be notarized either separately or along with the main application. availed of the second option: Indeed, all that Article 235 requires is that the secretarys certification be under oath. It does not prescribe a specific manner of its notarization. Based on its interpretation of Article 235, the BLR, in its October 14, 1998 Advisory, allows for the wholesale notarization of a unions application for registration and recognizes the effects thereof even on the attachments, including the secretarys certification. Article 235, This is a reasonable interpretation considering that the form of which is to forestall fraud and misrepresentation. More notarization contemplated in said Advisory adequately serves the purpose of importantly, such interpretation of the BLR is accorded great weight by the Court for it is said agency which is vested with authority and endowed with expertise to implement the law in question. DEL PILAR ACADEMY, EDUARDO ESPEJO and ELISEO OCAMPO, JR.,Petitioners, vs DEL PILAR ACADEMY EMPLOYEES UNION,Respondent. G.R. No. 170112, April 30, 2008 The collection of agency fees in an amount equivalent to union dues and fees, from employees who are not union members, is recognized by Article 248(e) of the Labor Code. When so stipulated in a collective bargaining agreement or authorized in writing by the employees concerned, the Labor Code and its Implementing Rules recognize it to be the duty of the employer to deduct the sum equivalent to the amount of union dues, as agency fees, from the employees' wages for direct remittance to the union. The system is referred to as check off. No requirement of written authorization from the non-union employees is necessary if the non-union employees accept the benefits resulting from the CBA. The employee's acceptance of benefits resulting from a collective bargaining agreement justifies the deduction of agency fees from his pay and the union's entitlement thereto. In this aspect, the legal basis of the union's right to agency fees is neither contractual nor statutory, but quasi-contractual, deriving from the established principle that non-union employees may not unjustly enrich themselves by benefiting from employment conditions negotiated by the bargaining union. S.S. Ventures International, Inc. vs. S.S. Ventures Labor Union GR No. 161690, July 23, 2008 The right to form, join, or assist a union is specifically protected by Art. XIII, Section 3 of the Constitution and such right, according to Art. III, Sec. 8 of the Constitution and Art. 246 of the Labor Code, shall not be abridged. Once registered with the DOLE, a union is considered a legitimate labor organization endowed with the right and privileges granted by law to such organization. While a certificate of registration confers a union with legitimacy with the concomitant right to participate in or ask for certification election in a bargaining unit, the registration may be canceled or the union may be decertified as the bargaining unit, in which case the union is divested of the status of a legitimate labor organization. Among the grounds for cancellation is the commission of any of the acts enumerated in Art. 239(a) of the Labor Code, such as fraud and misrepresentation in connection with the adoption or ratification of the unions constitution and like documents. The Court, has in previous cases, said that to decertify a union, it is not enough to show that the union includes ineligible employees for in its membership. the It must also be shown as that the there adoption was or misrepresentation, false statement, or fraud in connection with the application registration and supporting documents, such ratification of the constitution and by-laws or amendments thereto and the minutes of ratification of the constitution or by-laws, among other documents. The BLR noted that respondent union correctly
Labor Relations (Finals Coverage, source: Azucena, cases), mary 2012 _________________________________________________________________________ We have in precedent cases said that the employees withdrawal from a labor union made before the filing of the petition for certification election is presumed voluntary, while withdrawal after the filing of such petition is considered to be involuntary and does not affect the same. Now then, if a withdrawal from union membership done after a petition for certification election has been filed does not vitiate such petition, is it not but logical to assume that such withdrawal cannot work to nullify the registration of the union? Upon this light, the Court is inclined to agree with the CA that the BLR did not abuse its discretion nor gravely err when it concluded that the affidavits of retraction of the 82 members had no evidentiary weight. It cannot be over-emphasized that the registration or the recognition of a labor union after it has submitted the corresponding papers is not ministerial on the part of the BLR. Far from it. After a labor organization has filed the necessary registration documents, it becomes mandatory for the BLR to check if the requirements under Art. 234 of the Labor Code have been sedulously complied with. If the unions application is infected by falsification and like serious irregularities, especially those appearing on the face of the application and its attachments, a union should be denied recognition as a legitimate labor organization. Prescinding from these considerations, the issuance to the Union of Certificate of Registration No. RO300-00-02-UR-0003 necessarily implies that its application for registration and the supporting documents thereof are prima facie free from any vitiating irregularities. Suffice it to say that, as aptly observed by the CA, the procedure for acquiring or losing union membership and the determination of who are qualified or disqualified to be members are matters internal to the union and flow from its right to self-organization. The bare fact that three signatures twice appeared on the list of those who participated in the organizational meeting would not, to our mind, provide a valid reason to cancel Certificate of Registration No. RO300-00-02-UR-0003. As the Union tenably explained without rebuttal from Ventures, the double entries are no more than normal human error, effected without malice. Even the labor arbiter who found for Ventures sided with the Union in its explanation on the absence of malice. [F]or fraud and misrepresentation [to be grounds for] cancellation of union registration under Article 239 [of the Labor Code], the nature of the fraud and misrepresentation must be grave and compelling enough to vitiate the consent of a majority of union members. A certification election is exclusively the concern of employees and the employer lacks the legal personality to challenge it. In fact, jurisprudence frowns on the employers interference in a certification election for such interference unduly creates the impression that it intends to establish a company union. Inguillo et al., vs. First Phil Scales Inc., et al., G.R. No. 165407, June 5, 2009 Essentially, the Labor Code of the Philippines has several provisions under which an employee may be validly terminated, namely: (1) just causes under Article 282; (2) authorized causes under Article 283; (3) termination due to disease under Article 284; and (4) termination by the employee or resignation under Article 285. While the said provisions did not mention as ground the enforcement of the Union Security Clause in the CBA, the dismissal from employment based on the
Labor Relations (Finals Coverage, source: Azucena, cases), mary 2012 _________________________________________________________________________ same is recognized and accepted in our jurisdiction. "Union security" is a generic term, which is applied to and comprehends "closed shop," "union shop," "maintenance of membership" or any other form of agreement, which imposes upon employees the obligation to acquire or retain union membership as a condition affecting employment. There is union shop when all new regular employees are required to join the union within a certain period as a condition for their continued employment. There is maintenance of membership shop 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. A closed-shop, on the other hand, may be defined as an enterprise in which, by agreement between the employer and his employees or their representatives, no person may be employed in any or certain agreed departments of the enterprise unless he or she is, becomes, and, for the duration of the agreement, remains a member in good standing of a union entirely comprised of or of which the employees in interest are a part. In the case at bar, in terminating the employment of an employee by enforcing the Union Security Clause, the employer needs only to determine and prove that: (1) the union security clause is applicable; (2) the union is requesting for the enforcement of the union security provision in the CBA; and (3) there is sufficient evidence to support the union's decision to expel the employee from the union or company. The stipulations in the CBA authorizing the dismissal of employees are of equal import as the statutory provisions on dismissal under the Labor Code, since a CBA is the law between the company and the Union, and compliance therewith is mandated by the express policy to give protection to labor. the Court expounded on the effectiveness of union security clause when it held that it is one intended to strengthen the contracting union and to protect it from the fickleness or perfidy of its own members. For without such safeguards, group solidarity becomes uncertain; the union becomes gradually weakened and increasingly vulnerable to company machinations. In this security clause lies the strength of the union during the enforcement of the collective bargaining agreement. It is this clause that provides labor with substantial power in collective bargaining. To safeguard the rights of the employees, We have said time and again that dismissals pursuant to union security clauses are valid and legal, subject only to the requirement of due process, that is, notice and hearing prior to dismissal. In like manner, We emphasized that the enforcement of union security clauses is authorized by law, provided such enforcement is not characterized by arbitrariness, and always with due process. Sta. Lucia East Commercial Corp. vs. Secretary of DOLE, et al GR No. 162355, August 14, 2009 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 concepts of a union and of a legitimate labor organization are different from, but related to, the concept of a bargaining unit.
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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. This Court has categorically ruled that the existence of a prior collective bargaining history is neither decisive nor conclusive in the determination of what constitutes an appropriate bargaining unit. However, employees in two corporations cannot be treated as a single bargaining unit even if the businesses of the two corporations are related. The inclusion in the union of disqualified employees is not among the grounds for cancellation of registration, unless such inclusion is due to misrepresentation, false statement or fraud under the circumstances enumerated in Sections (a) to (c) of Article 239 of the Labor Code. Thus, CLUP-SLECC and its Affiliates Workers Union, having been validly issued a certificate of registration, should be considered as having acquired juridical personality which may not be attacked collaterally. The proper procedure for SLECC is to file a petition for cancellation of certificate of registrationof CLUP-SLECC and its Affiliates Workers Union and not to immediately commence voluntary recognition proceedings with SMSLEC. The employer may voluntarily recognize the representation status of a union in unorganized establishments. SLECC was not an unorganized establishment when it voluntarily recognized SMSLEC as its exclusive bargaining representative on 20 July 2001.CLUP-SLECC and its Affiliates Workers Union filed a petition for certification election on 27 February 2001 and this petition remained pending as of 20 July 2001.Thus, SLECCs voluntary recognition of SMSLEC on 20 July 2001, the subsequent negotiations and resulting registration of a CBA executed by SLECC and SMSLEC are void and cannot bar CLUP-SLECCWAs present petition for certification election. In petitions for certification election, the employer is a mere bystander and cannot oppose the petition or appeal the Med-Arbiters decision. The exception to this rule, which happens when the employer is requested to bargain collectively, is not present in the case before us. Mariwasa Siam Ceramics, Inc. vs. Secretary of DOLE, et al GR No. 183317, December 21, 2009 The reason for such distinction is that if the withdrawal or retraction is made before the filing of the petition, the names of employees supporting the petition are supposed to be held secret to the opposite party. Logically, any such withdrawal or retraction shows voluntariness in the absence of proof to the contrary. Moreover, it becomes apparent that such employees had not given consent to the filing of the petition, hence the subscription requirement has not been met. When the withdrawal or retraction is made after the petition is filed, the employees who are supporting the petition become known to the opposite party The distinction must be that withdrawals made before the filing of the petition are presumed voluntary unless there is convincing proof to the contrary, whereas withdrawals made after the filing of the petition are deemed involuntary.
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Labor Relations (Finals Coverage, source: Azucena, cases), mary 2012 _________________________________________________________________________ since their names are attached to the petition at the time of filing. Therefore, it would not be unexpected that the opposite party would use foul means for the subject employees to withdraw their support. Nevertheless, even assuming the veracity of the affidavits of recantation, the legitimacy of respondent as a labor organization must be affirmed. While it is true that the withdrawal of support may be considered as a resignation from the union, the fact remains that at the time of the unions application for registration, the affiants were members of respondent and they comprised more than the required 20% membership for purposes of registration as a labor union. Article 234 of the Labor Code merely requires a 20% minimum membership during the application for union registration. It does not mandate that a union must maintain the 20% minimum membership requirement all throughout its existence. For the purpose of de-certifying a union such as respondent, it must be shown that there was 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; or, in connection with the election of officers, the 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 to the BLR. The bare fact that two signatures appeared twice on the list of those who participated in the organizational meeting would not, to our mind, provide a valid reason to cancel respondents certificate of registration. The cancellation of a unions registration doubtless has an impairing dimension on the right of labor to self-organization. For fraud and misrepresentation to be grounds for cancellation of union registration under the Labor Code, the nature of the fraud and misrepresentation must be grave and compelling enough to vitiate the consent of a majority of union members. In this case, we agree with the BLR and the CA that respondent could not have possibly committed misrepresentation, fraud, or false statements. The alleged failure of respondent to indicate with mathematical precision the total number of employees in the bargaining unit is of no moment, especially as it was able to comply with the 20% minimum membership requirement. General Milling Corp vs. Casio et al. G.R. No. 149552, March 10, 2010 Union security clauses are recognized and explicitly allowed under Article 248(e) of the Labor Code, which provides that: Art. 248. Unfair Labor Practices of Employers. x x x x x x x (e) To discriminate in regard to wages, hours of work, and other terms and conditions of employment in order to encourage or discourage membership in any labor organization. Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment, except those employees who are already members of another union at the time of the signing of the collective bargaining agreement. It is State policy to promote unionism to enable workers to negotiate with management on an even playing field and with more persuasiveness than if they were to individually and separately bargain with the employer. For this reason, the law has allowed stipulations for union shop and closed shop as means of
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Labor Relations (Finals Coverage, source: Azucena, cases), mary 2012 _________________________________________________________________________ encouraging workers to join and support the union of their choice in the protection of their rights and interest vis--vis the employer. Moreover, a stipulation in the CBA authorizing the dismissal of employees are of equal import as the statutory provisions on dismissal under the Labor Code, since a CBA is the law between the company and the union and compliance therewith is mandated by the express policy to give protection to labor. In terminating the employment of an employee by enforcing the union security clause, the employer needs only to determine and prove that: (1) the union security clause is applicable; (2) the union is requesting for the enforcement of the union security provision in the CBA; and (3) there is sufficient evidence to support the decision of the union to expel the employee from the union. These requisites constitute just cause for terminating an employee based on the union security provision of the CBA. It is the third requisite that there is sufficient evidence to support the decision of IBM-Local 31 to expel Casio, et al. which appears to be lacking in this case. The failure of GMC to make a determination of the sufficiency of evidence supporting the decision of IBM-Local 31 to expel Casio, et al. is a direct consequence of the non-observance by GMC of procedural due process in the dismissal of employees. Its worthy to note that Casio, et al. were expelled only five days after the issuance of the letter-complaint against them. The Court cannot find proof on record when the three-day period, within which Casio, et al. was supposed to file their answer or counter-affidavits, started to run and had expired. The Court is likewise unconvinced that the said three-day period was sufficient for Casio, et al. to prepare their defenses and evidence to refute the serious charges against them. Contrary to the position of GMC, the acts of Pino, et al. as officers and board members of IBM-Local 31, in expelling Casio, et al. from the union, do not enjoy the presumption of regularity in the performance of official duties, because the presumption applies only to public officers from the highest to the lowest in the service of the Government, departments, bureaus, offices, and/or its political subdivisions. Irrefragably, GMC cannot dispense with the requirements of notice and hearing before dismissing Casio, et al. even when said dismissal is pursuant to the closed shop provision in the CBA. The rights of an employee to be informed of the charges against him and to reasonable opportunity to present his side in a controversy with either the company or his own union are not wiped away by a union security clause or a union shop clause in a collective bargaining agreement. An employee is entitled to be protected not only from a company which disregards his rights but also from his own union the leadership of which could yield to the temptation of swift and arbitrary expulsion from membership and hence dismissal from his job. In the case at bar, Casio, et al. did not receive any other communication from GMC, except the written notice of termination dated March 24, 1992. GMC, by its own admission, did not conduct a separate and independent investigation to determine the sufficiency of the evidence supporting the expulsion of Casio, et al. by IBP-Local 31. It straight away acceded to the demand of IBP-Local 31 to
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Labor Relations (Finals Coverage, source: Azucena, cases), mary 2012 _________________________________________________________________________ dismiss Casio, et al. BANK OF THE PHILIPPINE ISLANDS, Petitioner, vs. BPI EMPLOYEES UNION-DAVAO CHAPTER-FEDERATION OF UNIONS IN BPI UNIBANK, Respondent. G.R. No. 164301 August 10, 2010 To this end, the Constitution guarantees to them the rights "to self-
organization, collective bargaining and negotiations and peaceful concerted actions including the right to strike in accordance with law." There is no question that these purposes could be thwarted if every worker were to choose to go his own separate way instead of joining his co-employees in planning collective action and presenting a united front when they sit down to bargain with their employers. It is for this reason that the law has sanctioned stipulations for the union shop and the closed shop as a means of encouraging the workers to join and support the labor union of their own choice as their representative in the negotiation of their demands and the protection of their interest vis--vis the employer. In other words, the purpose of a union shop or other union security arrangement is to guarantee the continued existence of the union through enforced membership for the benefit of the workers. All employees in the bargaining unit covered by a Union Shop Clause in their CBA with management are subject to its terms. However, under law and jurisprudence, the following kinds of employees are exempted from its coverage, namely, 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; employees already in the service and already members of a union other than the majority at the time the union shop agreement took effect; confidential employees who are excluded from the rank and file bargaining unit; and employees excluded from the union shop by express terms of the agreement. When certain employees are obliged to join a particular union as a requisite for continued employment, as in the case of Union Security Clauses, this condition is a valid restriction of the freedom or right not to join any labor organization because it is in favor of unionism. This Court, on occasion, has even held that a union security clause in a CBA is not a restriction of the right of freedom of association guaranteed by the Constitution. Moreover, a closed shop agreement is an agreement whereby an employer binds himself to hire only members of the contracting union who must continue to remain members in good standing to keep their jobs. It is "the most prized achievement of unionism." It adds membership and compulsory dues. By holding out to loyal members a promise of employment in the closed shop, it wields group solidarity. As the Union likewise pointed out in its pleadings, there were benefits under the CBA that the former FEBTC employees did not enjoy with their previous employer. As BPI employees, they will enjoy all these CBA benefits upon their "absorption." Thus, although in a sense BPI is continuing FEBTCs employment of these absorbed employees, BPIs employment of these absorbed employees was not under exactly the same terms and conditions as stated in the latters employment contracts with FEBTC. This further strengthens the view that BPI and the former FEBTC employees voluntarily contracted with each other for their employment in the surviving corporation. The rationale for upholding the validity of union shop clauses in a CBA, even if they impinge upon the individual employees right or freedom of association, is not to protect the union for the unions sake. Laws and jurisprudence promote
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Labor Relations (Finals Coverage, source: Azucena, cases), mary 2012 _________________________________________________________________________ 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. In sum, this Court finds it reasonable and just to conclude that the Union Shop Clause of the CBA covers the former FEBTC employees who were hired/employed by BPI during the effectivity of the CBA in a manner which petitioner describes as "absorption." A final point in relation to procedural due process, the Court is not unmindful that the former FEBTC employees refusal to join the union and BPIs refusal to enforce the Union Shop Clause in this instance may have been based on the honest belief that the former FEBTC employees were not covered by said clause. In the interest of fairness, we believe the former FEBTC employees should be given a fresh thirty (30) days from notice of finality of this decision to join the union before the union demands BPI to terminate their employment under the Union Shop Clause, assuming said clause has been carried over in the present CBA and there has been no material change in the situation of the parties. THE HERITAGE HOTEL MANILA, acting through its owner, GRAND PLAZA HOTEL CORPORATION, Petitioner, v. NATIONAL UNION OF WORKERS IN THE HOTEL, RESTAURANT AND ALLIED INDUSTRIES-HERITAGE HOTEL MANILA SUPERVISORS CHAPTER (NUWHRAINHHMSC), Respondent. G.R. No. 178296 January 12, 2011 We cannot ascribe abuse of discretion to the Regional Director and the DOLE Secretary in denying the petition for cancellation of respondent's registration. The union members and, in fact, all the employees belonging to the appropriate bargaining unit should not be deprived of a bargaining agent, merely because of the negligence of the union officers who were responsible for the submission of the documents to the BLR. Labor authorities should, indeed, act with circumspection in treating petitions for cancellation of union registration, lest they be accused of interfering with union activities. the rights In resolving of all the petition, to consideration must be taken of the and fundamental rights guaranteed by Article XIII, Section 3 of the Constitution, i.e., workers self-organization, collective bargaining negotiations, and peaceful concerted activities. Labor authorities should bear in mind that registration confers upon a union the status of legitimacy and the concomitant right and privileges granted by law to a legitimate labor organization, particularly the right to participate in or ask for certification election in a bargaining unit. Thus, the cancellation of a certificate of registration is the equivalent of snuffing out the life of a labor organization. For without such The Regional Director has ample discretion in dealing with a petition for cancellation of a union's registration, particularly, determining whether the union still meets the requirements prescribed by law. It is sufficient to give the Regional Director license to treat the late filing of required documents as sufficient compliance with the requirements of the law. After all, the law requires the labor organization to submit the annual financial report and list of members in order to verify if it is still viable and financially sustainable as an organization so as to protect the employer and employees from fraudulent or fly-by-night unions. With the submission of the required documents by respondent, the purpose of the law has been achieved, though belatedly.
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Labor Relations (Finals Coverage, source: Azucena, cases), mary 2012 _________________________________________________________________________ registration, it loses - as a rule - its rights under the Labor Code. It is worth mentioning that the Labor Code's provisions on cancellation of union registration and on reportorial requirements have been recently amended by Republic Act (R.A.) No. 9481. The amendment sought to strengthen the workers' right to self-organization and enhance the Philippines' compliance with its international obligations as embodied in the International Labour Organization (ILO) Convention No. 87, pertaining to the non-dissolution of workers' organizations by administrative authority. Thus, R.A. No. 9481 inserted in the Labor Code Article 242-A, which provides: ART. 242-A. Reportorial Requirements.-The following are documents required to be submitted to the Bureau by the legitimate labor organization concerned: xxx fiscal year; and xxx xxx xxx (c) Its annual financial report within thirty (30) days after the close of every
Failure to comply with the above requirements shall not be a ground for cancellation of union registration but shall subject the erring officers or members to suspension, expulsion from membership, or any appropriate penalty. ILO Convention No. 87, which we have ratified in 1953, provides that "workers' and employers' organizations shall not be liable to be dissolved or suspended by administrative authority." The ILO has expressed the opinion that the cancellation of union registration by the registrar of labor unions, which in our case is the BLR, is tantamount to dissolution of the organization by administrative authority when such measure would give rise to the loss of legal personality of the union or loss of advantages necessary for it to carry out its activities, which is true in our jurisdiction. Although the ILO has allowed such measure to be taken, provided that judicial safeguards are in place, i.e., the right to appeal to a judicial body, it has nonetheless reminded its members that dissolution of a union, and cancellation of registration for that matter, involve serious consequences for occupational representation. It has, therefore, deemed it preferable if such actions were to be taken only as a last resort and after exhausting other possibilities with less serious effects on the organization. It is undisputed that appellee failed to submit its annual financial reports and list of individual members in accordance with Article 239 of the Labor Code. However, the existence of this ground should not necessarily lead to the cancellation of union registration. Article 239 recognizes the regulatory authority of the State to exact compliance with reporting requirements. Yet there is more at stake in this case than merely monitoring union activities and requiring periodic documentation thereof. The more substantive considerations involve the constitutionally guaranteed
freedom of association and right of workers to self-organization. Also involved is the public policy to promote free trade unionism and collective bargaining as instruments of industrial peace and democracy. Punctuality on the part of the union and its officers could have prevented this petition.
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Labor Relations (Finals Coverage, source: Azucena, cases), mary 2012 _________________________________________________________________________ [G.R. No. 169754. February 23, 2011.] LEGEND INTERNATIONAL RESORTS LIMITED, petitioner, vs. KILUSANG MANGGAGAWA NG LEGENDA (KMLINDEPENDENT), respondent. It is clear that a certification election may be conducted during the pendency of the cancellation proceedings. This is because at the time the petition for certification was filed, the petitioning union is presumed to possess the legal personality to file the same. There is therefore no basis for LEGEND's assertion that the cancellation of KML's certificate of registration should retroact to the time of its issuance or that it effectively nullified all of KML's activities, including its filing of the petition for certification election and its demand to collectively bargain. We agree with the ruling of the Office of the Secretary of DOLE that the legitimacy of the legal personality of KML cannot be collaterally attacked in a petition for certification election proceeding. This is categorically prescribed by Section 5, Rule V of the Implementing Rules of Book V, which states as follows: SEC. 5. Effect of registration. The labor organization or worker's association shall be deemed registered and vested with legal personality on the date of issuance of its certificate of registration. Such legal personality cannot thereafter
be subject to collateral attack but may be questioned only in an independent petition for cancellation in accordance with these Rules.
Hence, to raise the issue of the respondent union's legal personality is not proper in this case. The pronouncement of the Labor Relations Division Chief, that the respondent union acquired a legal personality . . . cannot be challenged in a petition for certification election. The discussion of the Secretary of Labor and Employment on this point is also enlightening, thus: . . . Section 5, Rule V of D.O. 9 is instructive on the matter. It provides that the legal personality of a union cannot be the subject of collateral attack in a petition for certification election, but may be questioned only in an independent petition for cancellation of union registration. This has been the rule since NUBE
v. Minister of Labor, 110 SCRA 274 (1981). What applies in this case is the
principle that once a union acquires a legitimate status as a labor organization, it continues as such until its certificate of registration is cancelled or revoked in an independent action for cancellation. Equally important is Section 11, Paragraph II, Rule IX of D.O. 9, which provides for the dismissal of a petition for certification election based on the lack of legal personality of a labor organization only in the following instances: (1) appellant is not listed by the Regional Office or the BLR in its registry of legitimate labor organizations; or (2) appellant's legal personality has been revoked or cancelled with finality. Since appellant is listed in the registry of legitimate labor organizations, and its legitimacy has not been revoked or cancelled with finality, the granting of its petition for certification election is proper. "[T]he legal personality of a legitimate labor organization . . . cannot be subject to a collateral attack. The law is very clear on this matter. . . . The Implementing Rules stipulate that a labor organization shall be deemed registered and vested with legal personality on the date of issuance of its certificate of registration. Once a certificate of registration is issued to a union, its legal personality cannot be subject to a collateral attack. In may be questioned only in an independent petition for cancellation in accordance with Section 5 of Rule V,
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Labor Relations (Finals Coverage, source: Azucena, cases), mary 2012 _________________________________________________________________________ Book V of the Implementing Rules." PHILIPPINES FOR EMPOWERMENT AND REFORMS (SMCC-SUPER), ZACARRIAS JERRY VICTORIO - UNION PRESIDENT, PETITIONER,VS. CHARTER CHEMICAL AND COATING CORPORATION, RESPONDENT. G.R. No. 169717, March 16, 2011 In San Miguel Foods-Cebu B-Meg Feed Plant v. Hon. Laguesma, 331 Phil. 356 (1996), the Court ruled that it was not necessary for the charter certificate to be certified and attested by the local/chapter officers. While this ruling was based on the interpretation of the previous Implementing Rules provisions which were supplanted by the 1997 amendments, we believe that the same doctrine obtains in this case. Considering that the charter certificate is prepared and issued by the national union and not the local/chapter, it does not make sense to have the local/chapter's officers x x x certify or attest to a document which they had no hand in the preparation of. In accordance with this ruling, petitioner union's charter certificate need not be executed under oath. Consequently, it validly acquired the status of a legitimate labor organization upon submission of (1) its charter certificate, (2) the names of its officers, their addresses, and its principal office, and (3) its constitution and by-laws-- the last two requirements having been executed under oath by the proper union officials as borne out by the records. The inclusion of the aforesaid supervisory employees in petitioner union does not divest it of its status as a legitimate labor organization. While there is a prohibition against the mingling of supervisory and rank-and-file employees in one labor organization, the Labor Code does not provide for the effects thereof. Thus, the Court held that after a labor organization has been registered, it may exercise all the rights and privileges of a legitimate labor organization. Any mingling between supervisory and rank-and-file employees in its membership cannot affect its legitimacy for that is not among the grounds for cancellation of its registration, unless such mingling was brought about by misrepresentation, false statement or fraud under Article 239 of the Labor Code. The Court explained that since the 1997 Amended Omnibus Rules does not require a local or chapter to provide a list of its members, it would be improper for the DOLE to deny recognition to said local or chapter on account of any question pertaining to its individual members. Hence, petitioner union was not divested of its status as a legitimate labor organization even if some of its members were supervisory employees; it had the right to file the subject petition for certification election. Petitioner union correctly argues that its legal personality cannot be collaterally attacked in the certification election proceedings. As we explained in Kawashima: Except when it is requested to bargain collectively, an employer is a mere bystander to any petition for certification election; such proceeding is nonadversarial and merely investigative, for the purpose thereof is to determine which organization will represent the employees in their collective bargaining with the employer. The choice of their representative is the exclusive concern of the employees; the employer cannot have any partisan interest therein; it cannot interfere with, much less oppose, the process by filing a motion to dismiss or an The charter certificate need not be certified under oath by the local union's secretary or treasurer and attested to by its president.
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Labor Relations (Finals Coverage, source: Azucena, cases), mary 2012 _________________________________________________________________________ appeal from it; not even a mere allegation that some employees participating in a petition for certification election are actually managerial employees will lend an employer legal personality to block the certification election. The employer's only right in the proceeding is to be notified or informed thereof. SAN MIGUEL FOODS, INCORPORATED, petitioner, vs. SAN MIGUEL CORPORATION SUPERVISORS, and EXEMPT UNION, respondent. [G.R. No. 146206. August 1, 2011.] Petitioner's contentions are erroneous. In G.R. No. 110399, the Court explained that the employees of San Miguel Corporation Magnolia Poultry Products Plants of Cabuyao, San Fernando, and Otis constitute a single bargaining unit, which is not contrary to the one-company, one-union policy. An appropriate bargaining unit is defined as a group of employees of a given employer, comprised of all or less than all of the entire body of employees, which the collective interest of all the employees, consistent with equity to the employer, indicate to be best suited to serve the reciprocal rights and duties of the parties under the collective bargaining provisions of the law. In National Association of Free Trade Unions v. Mainit Lumber Development
Company Workers Union United Lumber and General Workers of the Phils., the
Court, taking into account the "community or mutuality of interests" test, ordered the formation of a single bargaining unit consisting of the Sawmill Division in Butuan City and the Logging Division in Zapanta Valley, Kitcharao, Agusan [Del] Norte of the Mainit Lumber Development Company. It held that while the existence of a bargaining history is a factor that may be reckoned with in determining the appropriate bargaining unit, the same is not decisive or conclusive. Other factors must be considered. The test of grouping is community or mutuality of interest. This is so because the basic test of an asserted bargaining unit's acceptability is whether or not it is fundamentally the combination which will best assure to all employees the exercise of their collective bargaining rights. Certainly, there is a mutuality of interest among the employees of the Sawmill Division and the Logging Division. Their functions mesh with one another. One group needs the other in the same way that the company needs them both. There may be differences as to the nature of their individual assignments, but the distinctions are not enough to warrant the formation of a separate bargaining unit. Thus, applying the ruling to the present case, the Court affirms the finding of the CA that there should be only one bargaining unit for the employees in Cabuyao, San Fernando, and Otis of Magnolia Poultry Products Plant involved in "dressed" chicken processing and Magnolia Poultry Farms engaged in "live" chicken operations. Certain factors, such as specific line of work, working conditions, location of work, mode of compensation, and other relevant conditions do not affect or impede their commonality of interest. Although they seem separate and distinct from each other, the specific tasks of each division are actually interrelated and there exists mutuality of interests which warrants the formation of a single bargaining unit. Confidential employees are defined as those who (1) assist or act in a confidential capacity, in regard (2) to persons who formulate, determine, and effectuate management policies in the field of labor relations. The two criteria are cumulative, and both must be met if an employee is to be considered a confidential employee that is, the confidential relationship must exist between the employee and his supervisor, and the supervisor must handle the prescribed responsibilities relating to labor relations. The exclusion from bargaining units of employees who, in the normal course of their duties, become aware of management policies relating to labor relations is a principal objective sought to be accomplished by the "confidential employee rule."
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A confidential employee is one entrusted with confidence on delicate, or with the custody, handling or care and protection of the employer's property. Confidential employees, such as accounting personnel, should be excluded from the bargaining unit, as their access to confidential information may become the source of undue advantage. However, such fact does not apply to the position of Payroll Master and the whole gamut of employees who, as perceived by petitioner, has access to salary and compensation data. The CA correctly held that the position of Payroll
Master does not involve dealing with confidential labor relations information in the
course of the performance of his functions. Since the nature of his work does not pertain to company rules and regulations and confidential labor relations, it follows that he cannot be excluded from the subject bargaining unit. Corollarily, although Article 245 of the Labor Code limits the ineligibility to join, form and assist any labor organization to managerial employees, jurisprudence has extended this prohibition to confidential employees or those who by reason of their positions or nature of work are required to assist or act in a fiduciary manner to managerial employees and, hence, are likewise privy to sensitive and highly confidential records. Confidential employees are thus excluded from the rank-and-file bargaining unit. The rationale for their separate category and disqualification to join any labor organization is similar to the inhibition for managerial employees, because if allowed to be affiliated with a union, the latter might not be assured of their loyalty in view of evident conflict of interests and the union can also become company-denominated with the presence of managerial employees in the union membership. Having access to confidential information, confidential employees may also become the source of undue advantage. Said employees may act as a spy or spies of either party to a collective bargaining agreement. In this regard, the CA correctly ruled that the positions of Human Resource Assistant and Personnel Assistant belong to the category of confidential employees and, hence, are excluded from the bargaining unit, considering their respective positions and job descriptions. As Human Resource Assistant, the scope of one's work necessarily involves labor relations, recruitment and selection of employees, access to employees' personal files and compensation package, and human resource management. As regards a Personnel Assistant, one's work includes the recording of minutes for management during collective bargaining negotiations, assistance to management during grievance meetings and administrative investigations, and securing legal advice for labor issues from the petitioner's team of lawyers, and implementation of company programs. Therefore, in the discharge of their functions, both gain access to vital labor relations information which outrightly disqualifies them from union membership. CTSHDI The proceedings for certification election are quasi-judicial in nature and, therefore, decisions rendered in such proceedings can attain finality. It bears stressing that a certification election is the sole concern of the workers; hence, an employer lacks the personality to dispute the same. The general rule is that an employer has no standing to question the process of certification election, since this is the sole concern of the workers. Law and policy demand that employers take a strict, hands-off stance in certification elections. The bargaining representative of employees should be chosen free from any extraneous influence of management. A labor bargaining representative, to be effective, must owe its loyalty to the employees alone and to no other. The only exception is where the employer itself has to file the petition pursuant to Article 258 of the Labor
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Labor Relations (Finals Coverage, source: Azucena, cases), mary 2012 _________________________________________________________________________ Code because of a request to bargain collectively.
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STRIKES AND LOCKOUTS Bargaining Deadlock is defined as the situation between the labor and the management of the company where there is failure in the collective bargaining negotiations resulting in a stalement. An employer may lockout his employees to protect his bargaining position after an impasse occurs in negotiations, and possible also before such an impasse is reached. The question whether a lockout constitutes an unfair labor practice under the NLR Act must be decided on the facts of each case, and each case must be carefully measured by its own setting. Lockout has been held valid in the following situations: In anticipation of a threatened strike, where motivated by economic considerations; In response to unprotected strike or walkout; In response to a whipsaw strike. Lockout has been held unlawful where undertaken in the following purposes: To discourage and dissipate membership in a labor organization, otherwise kill the union; To aid a particular union by preventing further organizational work of its rival, or to coerce the employees to join the favored union; To avoid bargaining Lockout must be for a lawful purpose and carried out through lawful means. A lockout is unlawful where it is declared in order to defeat organizational and bargaining rights of employees. Kinds of strikes a. Extent (1) General extends over a whole community, province, state or country. It is an extended form of sympathetic strike, involving many workers who cease to work in sympathy with the workers of another employer, or in order to put pressure upon the government or in order to paralyze the present economic and social systems. (2) b. Local or particular is one undertaken by workers in a particular enterprise, locality or occupation; it usually involves only one union or only one industry. Nature of the act (1) (2) Strike proper Sit-down strike - occurs when a group of employees or others interested in obtaining a certain objective in a particular business forcibly take over possession of the property of such business, establish themselves within the plant, stop its production and refuse access to the owners or to the others desiring to work. In the traditional sense, it adds the element of trespass by the strikers upon the property of the employer. It is a combination of the trike plus a refusal of the strikers to leave the plant and machines, and refusal to permit the latter to be operated.
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Sit down is a method of prosecuting a strike in which the striking employees of the offending employer remain on the employers business premises, and, without working themselves, retain such dominion over the plants facilities so as to prevent access to and the continued operation of these facilities. Slowdown is a willful reduction in the rate of work by a group of employees for the purpose of restricting the output of the employer. The slowdown is a method by which ones employees, without seeking a complete stoppage of work, retard production and distribution in an effort to compel compliance by the employer with the labor demands made upon him. (3) Partial or quickie strike takes the form of intermittent, unannounced work stoppage, including slowdowns, unauthorized extension of rest periods, and walkouts for portions of a shift or for entire shifts. Quickie strike is sometimes used interchangeably with wildcat strike which is a work stoppage that violates the labor contract and is not authorized by the union. c. Degree of employees interest (1) Primary strike is one declared by the employees who have a direct and immediate interest, whether economic or otherwise, in the subject of the dispute, which exists between them and their employer. Typical examples are employees who strike for a raise in their wages or in protest of employers to bargain with their duly certified representative. It also refers to an original or initial strike, that is, a strike which is waged by the union primarily aggrieved. (2) Secondary strike refers to a coercive measure adopted by workers against an employer connected by product or employment with alleged unfair labor conditions or practices. It exists where employees in concert refuse to assist or cooperate with the allegedly unfair employers or their product. It is the absence of this connection between employment and product which characterizes the sympathetic as distinguished from the secondary strike. A secondary strike occurs when a group of employees refuse in concert to remain at work for an employer, not because of any complaint over their labor standards under him, but because he persists in dealing with a third person against whom they have a grievance. It is an attempt to secure the economic assistance of their employer to compel this third person to capitulate to the union over some issue between them, at the risk of losing the unionized employers business if he does not capitulate. (3) Sympathetic strike is one in which the striking employees have no demands or grievances of their own, but strike for the purpose of directly or indirectly aiding others, without direct relation to the advancement of the interest of the strikers. It is a stoppage of work to make common cause with other strikers in other
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establishment or companies, without the existence of any labor dispute between the string employees and their own employer. d. Purpose or nature of employees interest (1) Economic strike is intended to force wage and other concessions from the employer, which he is not required by law to grant. It is declared for the purpose of securing higher wages and for other immediate conditions of labor as a shorter work day, higher rate of overtime compensation, and such other economic benefits as are usually included in a collective bargaining contract. Also known as a bargaining strike, it is designed to enforce the union position on bargainable issues, when an impasse is reached or the negotiations fail to produce any agreement. The striking employees have no intention of severing employment relations with their employer, except temporarily for the duration of the strike, although the employer is free to replace them, if he can. Strikes are presumed to be economic rather than unfair labor practice. This is a strike held to force wage or other concessions from the employer which he is not required by law to grant. (2) Unfair labor practice strike is called against the unfair labor practices of the employer, usually for the purpose of making him desist from further committing such practices. This type of strike is perhaps the best known of strikes for mutual protection, which are declared in protest, and for the discontinuance, of employer abuses. This is a strike which is provoked or prolonged by a refusal to bargain or a discriminatory discharge or any other sort of ULP by the employer. To distinguish economic strike from ULP strike is not pointless because upon it depends the applicability of certain requirements or strikers rights. For instance, the cooling-off period required for bargaining deadlock strike (which usually involves economic demands) is 30 days; a ULP strike, on the other hand, requires only 15 days. Conversion Doctrine the strike staged by the union was initially meant to compel the company to grant it certain economic benefits set forth in its proposal for collective bargaining. But the strike changed its character from the time the company refused to reinstate the complainants because of their union activities although it agreed to readmit the others. The Board applied the usual rule that strikers who are permanently replaced during the economic phase of the strike are not entitled to immediate reinstatement, while strikers replaced after the date of conversion are. Welga ng Bayan (Peoples strike) is in the nature of a general strike which is but an extended sympathetic strike; it is a work stoppage affecting numerous (if not all) employers including a particular employer who has no dispute with his employees regarding terms and conditions of employment. Employees who have no labor dispute with their employer but who, on a day they are supposed to work, refuse to work so as to join instead a welga ng bayan, are committing an illegal work stoppage. The stoppage violates employment obligations, sacrifices productivity, and victimizes even law abiding employers. A strike can validly take place only in the presence of and in relation to a labor dispute between the employer and employees involved. A strike in contemplation of labor law, is
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recognized and protected only of the work stoppage is brought about by disagreements regarding terms and conditions of employment or regarding ways to arrange or adjust, inter alia, those terms and conditions. Where there is no dispute or the dispute has nothing to do with the terms and conditions of employment in the establishment, the stoppage of work by its employees has no basis in labor law and the employees who engage in the work stoppage actually commit an illegal strike and take the risks and consequences of such an illegal act. Avoidance of strike Pacific measures or remedies must first be exhausted before employees may stage a strike. Our courts have insisted on something analogous to the doctrine of exhausting administrative remedies, by requiring employees to exhaust available means of settling dispute without resort to a strike. Strikes and other coercive acts are deemed justified only when peaceful alternatives have proved unfruitful in settling the dispute. Conciliation, Mediation, Compromise to Avoid Strike To resort to a strike despite ongoing arbitration is an act amounting to sabotage of a peaceful conciliatory process. The law disdains it. The NCMB, may upon request of either of both parties or upon its own initiative, provide conciliation-mediation services to labor disputes other than notices of strikes or lockouts. Conciliation cases which are not subjects of notices of strike or lockout shall be docketed as preventive mediation cases. Premature strike It was declared without giving the manager or BOD, who were in another place, reasonable time within which to consider and act on the demands of the union, the nature of which were such that no possible action could be taken by the officials to whom they were submitted. The petitioner went on strike, knowing their demands could not be acted upon by the Treasurer of the company in the absence of its President who was then in the U.S. and they did not wait until their demands could be transmitted to said president and acted upon by him. Despite the attention given by the company to the unions demand for the dismissal of its foreman for an alleged assault, the company even asking the Fiscal to reopen the case after he had dropped it, the laborers when on strike without waiting of the Fiscals investigation of the case. Strike which was called before the expiration of the six-day period granted by the Conciliation Service to the employer within which to answer the unions demands. However, failure to wait for the expiration of such period was excused where the strikers had presented their demands for a period of four months before the strike and no answer thereto had been obtained. Neither is the strike illegal, where after the union submitted its demands, the company ignored them and sent out notice to the employees that, unless they joined a different
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labor union, they would be discharged at the end of the month; or where the company foreman was pressuring the strikers to join his (foremans) union when they already had a union of their own choice. Declared illegal strike because of the following purposes To procure the commission of an unlawful or criminal act; To compel an employer to join a boycott To overthrow the government Protection of strike (1) (2) (3) (4) It is generally not subject to labor injunction or restraining order; Employees may not be discriminated against merely because they have exercised the right to strike; The use of strike-breakers is prohibited Mere participation in a strike does not sever the employment relationship
Article 264 (c) No employer shall use or employ any strike-breaker, nor shall any person be employed as a strike-breaker. Strike-breaker - means any person who obstructs, impedes, or interferes with by force, violence, coercion, threats, or intimidation any peaceful picketing affecting wages, hours or conditions of work or in the exercise of the right of self-organization or collective bargaining. Employees who peacefully struck for a lawful object were not liable to their employer even though the strikes shut him down, bankrupted him, or put him out of business, and even though it also caused enormous and irreparable damage to hundreds of thousands of innocent persons not involved in the strike. The clear weight of authority is to the effect that striking employees may advise or persuade others to quit work and join in a strike, so long as contractual rights are not invaded, and that they may advise and persuade others not to engage their services to the employer against whom the strike is directed. In other words, the right to strike includes the right to use peaceable and lawful means to induce present and expectant employees to join the ranks of the strikers. Status of strikers The declaration of a strike does not amount to renunciation of the employment relation. By withdrawing temporarily from the service, the employees seek to induce the employer to acquiesce in their demands and to reinstate them in the service under the conditions that they seek to impose. Although they cease to work, the employees intend to retain their position. During a strike the employer-employee relationship is not terminated but merely suspended as the work stoppage is not permanent but only temporary.
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Art. 212 (f) Employee includes any person in the employ of an employer. The term shall not be limited to the employees of a particular employer, unless 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. Striking employee, as a rule, is not entitled to his wage during the strike. Legality of strike: The six factors affecting legality An illegal strike is one which: (1) Is contrary to a specific requirement of law, such as strike by employees performing governmental functions; (2) Violates a specific requirement of law; (3) Is declared for an unlawful purpose, such as inducing the employer to commit an unfair labor practice against nonunion employees; (4) Employs unlawful means in the pursuit of its objectives, such as a widespread terrorism of nonstrikers; (5) Is declared in violation of an existing injunction; (6) Is contrary to an existing agreement, such as a no-strike clause or conclusive arbitration clause. First factor in legality of strike: Statutory prohibition Government employees have the right to organize but they do not have the right to strike. A strike held by them would be an example of an illegal strike that violates legal prohibition. Since the terms and conditions of government employment are fixed by law, government workers cannot use the same weapons employed by workers in the private sector to secure concessions from their employers. The principle behind labor unionism in private industry is that industrial peace cannot be secured through compulsion by law. Relations between private employers and their employees rest on an essentially voluntary basis. Subject to the minimum requirements of wage laws and other labor and welfare legislation, the terms and conditions of employment in the unionized private sector are settled through the process of collective bargaining. In government employment, however, it is the legislature and, where properly given delegated power, the administrative heads of government which fix the terms and conditions of employment. And this is effected through statutes or administrative circulars, rules, and regulations, not through collective bargaining agreements. The fact that the conventional term strike was not used by the striking employees to describe their common course of action is inconsequential, since the substance of the situation, and not its appearance, will be deemed to be controlling. The ability to strike is not essential to the right of association. In the absence of statute, public employees do not have the right to engage in concerted work stoppages for any purpose. Second factor in legality of strike: Procedural Requirements
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It bears stressing that the requirements are mandatory, meaning, non-compliance therewith makes the strike illegal. a. Notice of strike (NS) only legitimate labor organization can legally hold a strike. If the reason for the intended strike is ULP by the employer, the notice should be filed by the duly recognized bargaining agent. If the bargaining unit involved has yet no bargaining agent, then the notice may be filed by even an unrecognized labor union, provided the a union is duly registered. If the reason for the intended strike is bargaining deadlock, only the bargaining union has the right to file a notice of strike. A bargaining deadlock presupposes that a union has been selected as the bargaining agent and such union has been certified by the DOLE or recognized by the employer as the employees exclusive bargaining representative. Contents of the notice the notice shall state, among others, the names and addresses of the employer and the union involved, the nature of the industry to which the employer belongs, the number of union members and of the workers in the bargaining unit, and such other relevant data as may facilitate the settlement of the dispute, such as a brief statement or enumeration of all pending labor disputes involving the same parties. In cases of bargaining deadlocks, the notice shall, as far as practicable, further state the unresolved issues in the bargaining negotiations and be accompanied by the written proposals of the union, the counter-proposals of the employer and the proof of a request for conference to settle the difference. In cases of ULP, the notice shall, as far as practicable, state the acts complained of and the efforts taken to resolve the dispute amicably. In case a notice does not conform with the requirements of this and the foregoing section/s, the regional branch of the Board shall inform the concerned party of such fact. b. Cooling-off period a cooling off period must be observed, i.e. a time gap is required to cool off tempers between the filing of notice and the actual execution of strike (or lockout). The cooling off period is 30 days in case of bargaining deadlock and 15 days in case of ULP. However, in the face of union busting as defined in Art.263(c), the cooling off period need not be observed and the union may take action immediately after the strike vote is conducted and the results thereof submitted to the appropriate regional branch of the Board. The NCMB, upon receipt of the notice of strike and during the cooling-off period, mediates and conciliates the parties. The regional branch of the Board may, upon agreement of the parties, treat a notice as a preventive mediation case. It shall also encourage the parties to submit the dispute to voluntary arbitration. During the proceedings, the parties shall not do any act which may disrupt or impede the early settlement of the dispute. They are obliged, as part of their duty to bargain collectively in good faith; to participate fully and promptly in the conciliation meetings called by the regional branch of the Board.
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A strike/lockout notice, upon agreement of the parties, may be referred to alternative modes of dispute resolution, including voluntary arbitration. Information and statements given at conciliation proceedings are treated as privileged
communication. Conciliators and similar officials shall not testify in any court or body regarding any matter taken up at conciliation proceedings conducted by them. The reason for these rules is to encourage free and frank exchange of proposals and counter-proposals between the parties, thus assisting the conciliator in searching for the formula most acceptable to both sides. c. Strike to Vote (SV) before a strike (or lockout) may actually be started, a strike/lockout vote should be taken by secret balloting, in meetings or referenda specially called for the purpose. The regional branch of the Board may, at its own initiative or upon request of any affected party, supervise the conduct of the secret balloting. In every case, the union or the employer shall furnish the regional branch of the Board the notice of meetings referred to at least 24 hours before the intended strike or lockout, subject to the cooling off period. The decision to declare a strike or lockout requires the secret-ballot approval of the majority of the total union membership in the bargaining unit concerned. The needed vote is majority of the total union membership, not just majority of the members present in the meeting referenda. And it is the majority of the union membership, not of the bargaining unit. The members of the minority union may or may not be called to the strike vote meeting. The purpose of the strike vote is to ensure that the decision to strike broadly rests with the majority of the union members in general and not with a mere minority, and at the same time, discourage wildcat strikes, union bossism and even corruption. A strike vote report submitted to the NCMB at least seven days prior to the intended strike ensures that a strike vote was indeed taken. In the event that the report is false, the seven-day period affords the members an opportunity to take appropriate remedy before it is too late. The 15 to 30 day cooling 0ff period is designed to afford the parties the opportunity to amicably resolve the dispute with the assistance of the NCMB conciliator/mediator, while the seven-day strike ban is intended to give the DOLE an opportunity to verify whether the projected strike really carries the imprimatur of the majority of the union members. The needed vote is 50% + 1 of the total union membership. Where the total union membership was 178, about 60 of whom had been dismissed and had received separation benefits, but their dismissal was being contested by the union, the vote needed to pass the strike vote should be majority of the 178, which includes the 60. The union cannot claim that the dismissal of the 60 is illegal and yet exclude them in trying to get majority vote to hold a strike. Similarly, a lockout needs the secret-ballot concurrence of majority of the directors or partners.
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d.
Strike vote report (SVR) The result of the strike (or lockout) should be reported to the NCMB at least seven days before the intended strike or lockout, subject to the cooling off period. This means that after the strike vote is taken and the result reported to NCMB, 7 days must pass before the union can actually commence the strike. This seven-day reporting period is intended to give the DOLE an opportunity to verify whether the projected strike really carries the imprimatur of the majority of the union members. the requirement of giving notice of the conduct of a strike vote to the NCMB at least 24 hours before the meeting for the said purpose is designed to: to provide an opportunity for conciliation and mediation inform the NCMB of the intent of the union to conduct a strike vote; to give the NCMB ample time to decide on whether or not there is a need to supervise the conduct of the strike vote to prevent acts of violence and/or irregularities attendant thereto; and should the NCMB decide on its own initiative or upon the request of an interested party including the employer, to supervise the strike vote, to give it ample time to prepare for the deployment of the requisite personnel, including peace officers of need be. The law does not specify whether the strike vote be taken within or outside the cooling off period, but the NCMBs Primer on Strike, Picketing and Lockout states that if the strike vote is filed within the cooling off period, the 7-day requirement shall be counted from the day following the expiration of the cooling off period. In effect, the 7 days are added to the 15-day or 30-day cooling off period. It must be stressed that the requirements of cooling off period and 7-day strike ban must both be complied with, although the labor union may take a strike vote and report the same within the statutory cooling off period. The right to strike, because of its more serious impact upon the public interest, is more vulnerable to regulation than that right to organize and select representatives for lawful purposes of collective bargaining. The requirements constitute a valid exercise of the police power of the state.
Declaration of strike or lockout If the dispute remains unsettled after the lapse of the cooling off period and the 7-day reporting period, the labor union may strike or the employer may lockout its workers. The regional branch of NCMB shall continue mediating and conciliating. The conciliator-mediator, however, can only suggest solutions. He is not an arbitrator or an adjudicator who may impose his decisions upon the parties. Respondents unjustified unilateral alteration of the 24-hour work schedule thru their concerted activities of overtime boycott and work slowdowns can be classified as a strike on an installment basis.
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In case of union busting Where the employer is trying to bust the union, the union is a victim. It needs assistance, not hindrance. And it will be adding insult to injury to ask the unionists to cool off while the union is being busted. Hence, Art 263(c) does away with the cooling off period requirement in case of union busting. But the union must still file a notice of strike and take a strike vote and submit the report and this is in fact requires greater need for their observance because unlike in bargaining deadlock where the parties positions are usually expressed in yes or no or are verifiable from objective facts and figures, the assertions in a ULP charge can be highly objective, even distorted by emotions. Even judicial statements acknowledge that testing a ULP act involves an appraisal of the perpetrators motives. Union busting, or interference with the formation of a union, constitutes an unfair labor practice act, hence a valid ground for the declaration of strike. Any ULP act under Art 248 is strikeable. Union busting exists when (elements) (1) (2) (3) The union officers are being dismissed; Those officers are the ones duly elected in accordance with the union constitution and bylaws; The existence of the union is threatened.
Strike during arbitration illegal The concerted action of the union members and officers in not reporting for work on April 46, 1985, when they were supposed to render work on those days according to their work schedules and during the pendency of the compulsory arbitration proceedings on the certified labor dispute, constituted an illegal strike. The strike being illegal, the officers of the striking union who knowingly took part in the strike are deemed to have lost their employment status. If the declaration of the Court of Industrial Relations declaring a strike illegal, new demands or matters arise not in connection with, or similar to, the demands in the former case subject of the decision, and the laborers strike anew, the new strike cannot be held as a violation of the decision. But, again, the procedural requirements must be complied with. Strike despite preventive mediation Although the Labor Code does not name preventive mediation as a settlement mode, the NCMB enunciates it as a remedy to prevent or resolve disputes whether strikeable or nor. Preventive mediation can be initiated simply by request. Under Art 263 of the Labor Code, all that the Secretary may enjoin is the holding of the strike, but not the companys right to take action against union officers who participated in the illegal strike and committed illegal act. The prohibition which the Secretary issued to PAL constitutes an unlawful deprivation of property and denial of due process for it prevents PAL
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from seeking redress for the huge property losses that it suffered as a result of the unions illegal mass action. Art 254 of the Labor Code provides that no injunction or restraining order shall be issued by any court except as otherwise provided in Art 218 and 264. Under Art 218(e), injunction may be used to restrain an actual or threatened unlawful strike. SMC is correct in claiming that the union failed to comply with the procedural requirements of a valid strike, because it failed to file a valid notice of strike with the NCMB as prescribed by Art 263 of the LC. When NCMB converted IBMs notices into preventive mediation, this had the effect of dismissing the notices of strike filed by IBM. After such a conversion, it is as if there was no notice of strike. And that during the pendency of the preventive mediation proceedings, no strike could be legally declared. Dismissal of Employees during Conciliation, When Legal and Enforceable The filing of the strike notice and the commencement of conciliation of conciliation activities by the Bureau of Labor Relations did not operate to make GTEs orders illegal and unenforceable so as to excuse continued noncompliance therewith. It does not follow that just because the employees or their union are unable to realize or appreciate the desirability of their employers policies or rules, the latter were laid down to oppress the former and subvert legitimate union activities. Indeed, the overt, direct, deliberate and continued defiance and disregard by the employees of the authority of their employer left the latter no alternative except to impose sanctions. The sanction of suspension having proved futile, termination of employment was the only option left to the employer. Third factor in legality of strike: Purpose; Economic and ULP Strike Strikeable issues: (1) (2) Collective bargaining deadlock; Employers unfair labor practice
Non-strikeable issues: (1) (2) (3) (4) (5) (6) Inter-union or intra-union disputes Violation of labor standards law, unless Art 248, particularly clauses c, f, or i, is also violated Any issue involving wage distortion Cases pending at the DOLE regional offices, BLR, NLRC or its regional branches, NPWC and its regional wage boards, office of the Secretary, Voluntary Arbitrator, CA, SC Execution and enforcement of final orders, decisions, resolution or awards in no. 4 Any issue covered by a no strike commitment in a duly executed CBA Inter-union and intra-union disputes and violation of labor standards laws are not valid grounds for strike or lockout because the law provides for med-arbitration procedures in the disposition
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of inter-union and intra-union disputes and labor enforcement in the case of labor standards violations. Legality of strike not dependent upon ability of management to grant demands The ability of the company to grant demands is one thing, and the right of the laborers to make said demands is another thing. The latter should be kept inviolate. There are other instrumentalities which may be resorted to in case of excesses. To make the legality or illegality of strikes dependent solely on whether the demands of laborers may or may not be granted, is in effect to outlaw altogether an effective means for securing better working conditions. ULP strike in good faith: Two tests in determining the existence of an unfair labor practice strike: (1) (2) Objectively, when the strike is declared in protest of ULP which is found to have been actually committed; and Subjectively, when a strike is declared in protest of what the union believed to be ULP committed by management, and the circumstances warranted such belief in good faith, although found subsequently as not committed. It is not even required that there be in fact a ULP committed by the employer. It suffices if such a belief in good faith is entertained by labor as the inducing factor for staging a strike. If the management performed acts (like taking disciplinary measures against certain union members) which, under the circumstances, the strikers believed were ULP on the part of the management, although they were not, the court ruled that the strike cannot be held illegal. However, the unions belief needs rational basis. It does not excuse the unions nonpresentation of substantial evidence to support its allegation of ULP by the employer. Procedural requirements apply even to a ULP strike in good faith Even if the union acted in good faith in the belief that the company was committing a ULP, if no notice of strike and a strike vote were conducted, the said strike is illegal. A no-strike clause prohibition in a CBA is applicable only to economic strike. Unlawful purpose: strike for union recognition without having proven majority status It should be emphasized that the legal way to secure union recognition is not through strike. It is through certification election or voluntary recognition by the employer if there is no doubt as to the unions majority status. This is why Art 263(b) prohibits a strike due to an interunion or intra-union dispute. If two or more unions are contending for majority status and eventually for the right to be recognized as the exclusive bargaining representative, such contest should be resolved through election and not through a work stoppage. This means, in other words, that recognitional strike has no place in our labor relations law. But where the majority status of a union is not in doubt, not in dispute, or certainly established and, despite this, the employer still refuses to bargain, then the situation is one of refusal to bargain which is ULP act by the employer; in this situation the union, if it strikes, will be staging a valid ULP strike, assuming that the other requirements are complied with.
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No confusion need arise in distinguishing recognition strike from ULP strike if one remembers the three jurisdictional preconditions to collective bargaining. To recall, these are: (1) possession of majority status; (2) proof of majority representation; and (3) a demand to bargain. If these or any one of these conditions is not present, it will be premature for a union to hold a strike to compel bargaining; in fact, such a strike is not to compel bargaining but to compel recognition. Such strike finds no support in present law. Union-recognition strike as its legal designation implies, is calculated to compel the employer to recognize ones union, and not the other contending group, as the employees bargaining representative to work out a CBA despite the striking unions doubtful majority status to merit voluntary recognition and lack of formal certification as the exclusive representative in the bargaining unit. Minority union cannot strike By law the right to be the exclusive bargaining representative of all the employees in an appropriate collective bargaining unit is vested in the labor union designated or selected for such purpose by the majority of employees in the unit concerned. When a union, after winning an election, is certified as the exclusive bargaining representative, any other union who participated in the election thereby becomes a minority union. A minority union cannot demand collective bargaining with the employer because such right properly belongs to the union that commands the majority. Moreover, the defeated union cannot lawfully undertake a strike against the employer; if one is being done, it must come to a halt. Neither can it picket to compel bargaining. To allow said union to continue picketing for the purpose of drawing the employer to the collective bargaining table would obviously be to disregard the results of the consent election. To further permit the unions picketing activities would be to flaunt at the will of the majority. No labor dispute can exist between a minority union and an employer in such a case. But this is not to say that the minority union is helpless or an easy prey. Although it cannot strike, it can engage in peaceful concerted activity short of strike and it can file a ULP complaint. Strike held to compel recognition while case is unresolved, illegal It was of no avail to the petitioner to strike to show to the company and the intervenor UOEF that the petitioner had more than 30 members, because the question of whether or not the petitioner had more than 30 members employed in the service of the Company was at that time sub judice, both parties having submitted evidence before the court to prove their respective contentions and the company had the right to wait for the decision of the court upon evidence adduced before it. The only permissible way to prove an allegation and to influence the decision of the court is to adduce evidence in the regular course of the proceeding.
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The labor organization filed its notice of strike even before it received the answer of the employer to its demands, clearly indicating that the union was predisposed to go on strike, regardless of the willingness of the members to negotiate. It was an illegal strike when such was declared, at the instance of a union president, as a protest against his supposed dismissal by the management on account of his union activities, when the truth was that he was separated from the service of the company because of his voluntary resignation, which was duly accepted, and afterwards the company refused to reemploy him upon his application. In another case, the SC said: Considering that the weight of authority is that employees have a right, either individually or in combination, to quit working because a fellow employee is obnoxious to them (unless an employment contract for a definite period intervenes, or the move is actuated by malice), since employees may choose not only their employer but also their associates. Nonstrikeable: Physical rearrangement of office There is no question that the strike itself was prompted by no actual existing ULP committed by petitioner. In effecting a change in the seating arrangement in the offices of the underwriting department, the employer merely exercised a reasonable prerogative employees could not validly question, much less assail as an act of ULP. The Court is at a loss how rearranging furniture can justify a four-month-long strike. Nonstrikeable: Companys sales evaluation policy The companys adoption of a new sales evaluation and production policy was within its management prerogative to regulate, according to its own discretion and judgment, all aspects of employment, including the manner, procedure and processes by which particular work activities should be done. To sanction disregard or disobedience by employees of a rule or order laid down by management, on the pleaded theory that the rule or order is unreasonable, illegal, or otherwise irregular for one reason or another, would be disastrous to the discipline and order that it is in the interest of both the employer and his employees to preserve and maintain in the working establishment and without which no meaningful operation and progress is possible. Until and unless the rules or orders are declared to be illegal or improper by competent authority, the employees ignore or disobey them at their peril. Nonstrikeable: Salary distortion under the Wage Rationalization Act The legislative intent that solution of the problem of wage distortion shall be sought by voluntary negotiation or arbitration, and not by strikes, lockouts or other concerted activities of the employees or management, is made clear in the rules implementing RA 6727 issued by the SOLE pursuant to the authority granted by Sec 13 of the Act. Sec. 16, Chapter 1 of these implementing rules, after reiterating the policy that wage distortions be first settled voluntarily by the parties and eventually by compulsory arbitration, declares that, any issue involving wage distortion shall not be a ground for strike/lockout.
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Nonstrikeable: Inter-union or intra-union dispute It may be recalled that the BLR, under Art 226, exercises original and exclusive authority to act on all inter-union and intra-union disputes. Internal union dispute is defined in Art 212(q). Whether the dispute is between or among unions (inter-union) or internal to one union, the dispute does not involve the employer. Since the dispute is not with the employer, the dispute cannot justify a work stoppage. Fourth factor in legality of strike: Means and methods The limits are among the prohibited activities that Art 264 speaks of, particularly paragraph (e). It states that no person engaged in picketing shall a) Commit any act of violence, coercion or intimidation, or b) Obstruct the free ingress to or egress from the employers premises for lawful purposes, or c) Obstruct public thoroughfares. Whoever commits these acts- union officers or members, employees or non-employees- is answerable for the acts. Art. 289 of the RPC. Formation, maintenance and prohibition of combination of capital or labor through violence or threats. The penalty of arresto mayor and a fine not exceeding 300 pesos shall be imposed upon any person who, for the purpose of organizing, maintaining or preventing coalitions or capital or labor, strike of laborers or lock-out of employees, shall employ violence or threats in such a degree as to compel or force the laborers or employers in the free and legal exercise of their industry or work, if the act shall not constitute a more serious offense in accordance with the provisions of this Code. Even if the strike is valid, the strike may still be held invalid where the means employed are illegal. It must be noted that the mere filing of charges against an employee for alleged acts during a strike does not by itself justify his dismissal. The charges must be proved at an investigation duly called where the employee shall be given an opportunity to defend himself. This is true even if the alleged ground constitutes a criminal offense. Violence on both sides Where violence was committed on both sides during a strike, such violence cannot be a ground for declaring the strike as illegal. Responsibility for use of force: Individual The responsibility for the illegal acts must be on an individual and not collective basis. Therefore, although the strike was illegal because of the commission of illegal acts, only the union officers and strikers who engaged in violent, illegal and criminal acts against the employer are deemed to have lost their employment status. Union members who were merely instigated to participate in the illegal strike should be treated differently.
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In order to hold a labor organization liable for the unlawful acts of individual officers, agents or members, there must be proof of actual authorization or ratification of such acts after actual knowledge thereof. Minor disorders Minor disorders would not deprive a striker of the possibility of reinstatement. Blockade or obstruction Article 264(e) forbids obstruction of points of ingress or egress as well as public thoroughfares. Such obstructions are beyond valid exercise of the right to strike because they deprive the owner of the company premises of its right to use them for lawful purposes and the passers-by the use of public passage. The illegal obstructions on public thoroughfares, such as streets or sidewalks, are nuisance which local government authorities can summarily remove. Obstructions or blockades to entrance or exit of a private company during a labor dispute may also be removed upon orders of the office of the Secretary, the NLRC, or its branches. The removal is to be done by police authorities, coordinating with labor officials concerned.
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Grievance Machinery and Voluntary Arbitration CBA, Law between the parties An employer violates his duty to bargain collectively where he unilaterally alters or changes a term or condition of employment maintained pursuant to an existing CBA. The employer is found to have failed to live up in good faith to the terms of its CBA by denying the privileges and benefits thereof to 15 drivers and helpers through its device of trying to pass them off as employees of its salesmen and propagandists. Such posture was a serious violation of the duty to bargain collectively and constituted unfair labor practice in any language. Issue: Does the term dependent in the CBA include fetus? While the Civil Code states that civil personality may be extinguished by death, it does not say that only those who have acquired juridical personality can die. A child inside a womb already has life. Hence, the employee is entitled to the leave-with-pay and insurance benefit under the CBA because of death of a legitimate dependent child. In a case involving a CBA interpretation and implementation, the court upheld the legality of management-formulated guidelines upgrading the academic qualifications of applicants recommended by its ex-employees, although the CBA does not specify such qualifications. Construing the contract The CBA being a contract, the rules embodied in the Civil Code on interpretation aof contracts should govern. The intent of the parties should be ascertained by considering relevant provisions of said CBA. This is founded on the dictum that a CBA is not an ordinary contract but one impressed with public interest. It goes without saying, however, that only provisions embodies in the CBA should be so interpreted and complied with. Proposal contained in minutes but not in the CBA itself A proposal mentioned in the negotiation minutes but not embodied in the collective bargaining contract itself is not part of the CBA. It cannot serve as basis of a charge of violating the CBA or of bargaining in bad faith. If there was indeed a promise or undertaking on the part of private respondent to obligate itself to grant an automatic across-the-board wage increase, petitioner union should have requested or demanded that such promise or undertaking be incorporated in the CBA. After all, petitioner union has the means under the law to compel private respondent to incorporate this specific economic proposal in the CBA. Zipper clause A device to forestall negotiation proposals after the CBA has been signed. It is a stipulation in a CBA indicating that issues that could have been negotiated upon but not contained in the CBA cannot be raised for negotiation when the CBA is already in effect. In short, the CBA is a complete agreement; negotiation is closed, as a zipper does.
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Law deemed written in contract The fact that the officers and unlicensed members of the crew of the vessels had a collective bargaining that did not contain any provision on the payment of accumulated leaves does not bar itself the employees resort to the leave law. The rule is that the law forms part of, and is read into, every contract, unless clearly excluded therefrom in those cases where such exclusion is allowed. Binding effect of agreement A union member who is employed under an agreement between the union and his employer is bound by the provisions thereof, since it is a joint and several contract of the members of the union entered into by the union as their agent. Persons entitled to benefits When a collective bargaining contract is entered into by the union representing the employees and the employer, even the non-member employees are entitled to the benefits of the contract. To accord its benefits only to members of the union without any valid reason would constitute undue discrimination against non-members. It is even conceded that a laborer can claim benefits from a CBA entered between the company and the union of which he is a member at the time of the conclusion of the agreement, even after he has resigned from said union. Managers not entitled to CBA benefits; exception Managers, who are not allowed to unionize to bargain collectively with the employer, cannot claim benefits contained in the CBA negotiated by the workers under them. They cannot obtain indirectly what they cannot do directly. However, there is nothing to prevent the employer from granting benefits to managerial employees equal to or higher than those afforded to union members. There can be no conflict of interest where the employer himself voluntarily agrees to grant such benefits to managerial employees. Effect of Collective Agreement on the individual contracts of employment When a collective agreement is concluded between a labor union and an employer, the members of the labor union are precluded from entering into individual contracts of employment. But if the agreement merely fixes wages and working conditions, the employer may enter into particular contracts of employment with his employees even though both are bound by the general contracts as to wages and working conditions. Enforceability against transferee of enterprise The rule is that unless expressly assumed, labor contracts, such as employment contracts and collectively bargaining agreements are not enforceable against a transferee of an enterprise,
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labor contracts being in personam, thus binding only between the parties. A labor contract merely creates an action in personam and does not create any real right which should be respected by third parties. This conclusion draws its force from the right of an employer to select his employees and to decide when to engage them as protected under our Constitution, and the same can only be restricted by law through the exercise of the police power. Exceptions: Although the purchaser of the assets or enterprise is not legally bound to absorb in its employ the employees of the seller of such assets or enterprise, the parties are liable to the employees if the transaction between the parties is colored or clothed with bad faith. Wiley Doctrine Under the Wiley doctrine, announced by the U.S. Supreme Court, a duty to arbitrate arising from a collective bargaining agreement survives the employers ceasing to do business as a separate entity after its merger with a substantially large corporation, so as to be binding on the larger corporation, where relevant similarity and continuity of operations across the change in ownership is evidenced by the wholesale transfer of the smaller corporations employees to the larger corporations plant. If a contractual duty to arbitrate survives the employers merger into another corporate employer, question as to the effect of the merger on the rights of the employees covered by the agreement-the former employees of the merged employer-are arbitrable if questions as to those rights would have been arbitrable before the merger. But a duty to arbitrate arising from CBA does not survive in every case in which the ownership or corporate structure of an enterprise is changed. It does not survive where there is lack of any substantial continuity of identity in the business enterprise before and after a change, or where the union abandons its right to arbitration by failing to make its claims known. Change of bargaining agent: 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. And it is in this light of this that the phrase said new agent would have to respect said contract must be understood. It only means that the employees, thru their new bargaining agent, cannot renege on their collective bargaining contract, except of course to negotiate with the management for the shortening thereof. The substitutionary doctrine cannot be invoked to support the contention that a newly certified collective bargaining agent automatically assumes all the personal undertakings-like the no-strike stipulation herein the CBA made by the deposed union. When BBWU bound itself and its officers not to strike, it could not have validly bound also all the other rival unions existing in the bargaining units in question. BBWU was the agent of the employees, not of the other unions which possess distinct personalities. Grievances A grievance is defined as any question by either the employer or the union regarding the interpretation or application of the CBA or company personnel policies or any claim by either
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party that the other party is violating any provisions of the CBA or company personnel policies. Personnel policies Personnel policies are guiding principles stated in broad, long-range terms that express the philosophy of an organizations top priority regarding personnel matters. The 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 agreement. The usual source of grievance, however, is the rules and regulations governing disciplinary actions. By-passing the grievance machinery: ULP All grievances arising from the implementation or interpretation of the CBA and/or
interpretation and enforcement of company personnel policies are com0ulsorily subject to the grievance machinery. Establishing and utilizing this mode are empathetically required by Art 260. Refusal or failure to do so is an ULP, because the grievance procedure is part of the continuous process of collective bargaining. It is intended to promote friendly dialogue between labor and management as a means of maintaining industrial peace. The grievance machinery under the agreement is the very heart of industrial self-government. Where procedural requirements of such CBA were disregarded, the purported dismissal for just cause of an employee was invalid, particularly where the company acted post haste and without affording the employee the time and opportunity to present his side. In view, however, of the State policy to encourage voluntary arbitration of all other labormanagement disputes, it is submitted that a grievance may be brought directly to voluntary arbitration without passing through the grievance machinery, especially when the latter has been proven to be ineffective in the past, or when the parties inadvertently failed to include a grievance machinery provision in their CBA. Waiver of grievance machinery procedure and submission to VA Art 262 of the Labor Code provides that upon agreement of the parties, the VA can hear and decide all other labor disputes. The employees waiver of her option to submit her case to grievance machinery did not amount to relinquishing her right to avail herself of voluntary arbitration. VOLUNTARY ARBITRATION Where the grievance remains unresolved, either party may serve notice upon the other of its intention to submit the issue to voluntary arbitration. The notice shall stat the issue or issues to be arbitrated, copy thereof furnished the board or the voluntary arbitrator or panel of voluntary arbitrators named or designated in the CBA. If the party upon whom the notice is served fails or refuses to respond favorably within seven days from receipt thereof, the voluntary arbitrator or panel of voluntary arbitrators designated in the CBA shall commence
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voluntary arbitration proceedings. Where the CBA does not so designate, the board shall call the parties and appoint a voluntary arbitrator or panel of VA, who shall thereafter commence arbitration proceedings in accordance with the preceding paragraph. In instances where parties fail to select a VA or panel of VA, the regional branch of the Board shall designate the VA or panel of VA, as may be necessary, which shall have the same force and effect as if the parties have selected the arbitrator. The parties to CBA shall decide on the number of arbitrators who may hear a dispute only when the need for it arises. Even the law itself does not specify the number of arbitrators. Their alternatives whether to have one or three arbitrators have their respective advantages and disadvantages. In this matter, cost is not the only consideration; full deliberation on the issues is another; and it is best accomplished in a hearing conducted by three arbitrators. In effect, the parties are afforded the latitude to decide for themselves the composition of the grievance machinery as they find appropriate to a particular situation. Labor arbitration is the reference of a labor dispute to a third party for determination on the basis of evidence and arguments presented by such parties, who are bound to accept the decision. Voluntary arbitration - a contractual proceeding whereby the parties to any dispute or controversy, in order to obtain a speedy and inexpensive final disposition of the matter involved, select a judge of their own choice and by consent submit their controversy to him for determination. Under voluntary arbitration, referral of a dispute by the parties is made, pursuant to a voluntary arbitration clause in their collective agreement, to an impartial third person for a final and binding resolution. Compulsory arbitration the process of settlement of labor disputes by a government agency (or other means provided by the government) which has the power to investigate and make an award binding upon the parties. It is a system whereby the parties to a dispute are compelled by the government to forego their right to strike and are compelled to accept the resolution of their dispute through arbitration by a third party. The essence of arbitration remains since a resolution of a dispute is arrived at by resort to a disinterested third party whose decision is final and binding on the parties, but in compulsory arbitration, such third party is normally appointed by the government. In Phil context, the judge in voluntary arbitration is called arbitrator, while that in compulsory is labor arbiter. The jurisdiction of a VA is stated in Articles 261 and 261 while that of an LA is in Art 217. Voluntary arbitration: A private judicial system A VA is not a public tribunal imposed upon the parties by a superior authority which the parties are obliged to accept. He has no general character to administer justice for a community which transcends the parties. He is rather part of a system of self-government created by and confined to the parties. The arbitration system has other unique characteristics. Unlike judges in our courts of law, arbitrators have no tenure of office and are not politically appointed or elected. An arbitrators continued selection depends on how satisfactorily and effectively he serves the needs of the
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parties in settling industrial disputes. In effect, management and labor established a private judicial system whereby they select their own judges and fix their own rules of procedure. The system is recognized by law. When parties have agreed to final and binding arbitration, the courts will enforce the agreement and the arbitrators award. The primary function of voluntary labor arbitration is to provide (1) a process for the orderly disposition of disputes and (2) a foundation for stable labor-management relations. Commercial arbitration grew up as an alternative to court action, while labor-management arbitration has evolved primarily as a substitute for strikes. Voluntary arbitration, a master procedure In labor-management relations, voluntary arbitration is a master procedure. Any and all kinds of labor disputes may be submitted to, settled, or resolved through voluntary arbitration, if the parties so desire. Money claims, bargaining deadlocks, strike or lockout, employment termination, and even questions about existence or absence of employer-employee relationship, may be resolved by the parties with finality by availing themselves of voluntary arbitration. As a matter of procedure, VA takes precedence over other dispute settlement devices. When a labor arbiter, for instance, is presented with a case falling under his original and exclusive jurisdiction, the parties may withdraw from him, no matter at what stage it may be, if the parties mutually decide to bring the dispute instead to voluntary arbitration. And even when a strike or lockout in a national interest case is placed under the jurisdiction of the Secretary of Labor or NLRC, the parties can withdraw the case from either office anytime to lodge it instead to a VA (or panel of VA). The primacy of voluntary arbitration is mandated by the Phil Constitution itself and entrenched in the Labor Code as a matter of basic industrial relations policy. These legal mandates, in turn, are formalized recognition of the fundamental tenet that the best persons to resolve a labor dispute are the party disputants themselves. Is voluntary arbitration really voluntary? Yes, because the parties themselves chose the arbitrator and define the issues submitted to him. But submission to him of the issues named in Art 261 is required by law. Who may be accredited as voluntary arbitrator The following are the minimum criteria for accreditation as voluntary arbitrator: 1. A Filipino citizen residing the Phil; educational trainings short of a Bachelors Degree; 3. At least 5 years experience in labor-management relations; 4. Completion of a training course on voluntary arbitrators conducted by the Board; and 5. A person of good moral character, noted for impartiality, probity, and has not been civilly, criminally and administratively adjudged guilty of any offense involving moral turpitude as evidenced by a duly sworn affidavit
2. A holder of Bachelors Degree in any field of behavioral or applied sciences or equivalent
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How voluntary arbitrator is chosen A VA is chosen by the parties themselves. Their choice is not limited to the arbitrators accredited by the NCMB, although Art 260 says they should preferably choose accredited ones. The choice is usually influenced by the trust in the persons fairness and knowledge of the dynamics, including law, of labor-management relations. The preferred method of selection is by mutual agreement of the parties. Alternative methods include the selection or appointment by an administrative agency like the NCMB. Parties in general may choose between the use of a temporary or permanent arbitrator. They have also a choice as to the number of arbitrators, either a sole arbitrator or a panel of arbitrators or Arbitrator Board. Temporary or ad hoc arbitrator is selected when a dispute is already at hand. He is named to arbitrate a specific dispute or a specific group of disputes, and there is no commitment to select him again. Permanent arbitrator, on the other hand, is one who is selected before a dispute arises, usually during the negotiation of the CBA. He is to serve for a period of time, usually during the life of the CBA, rather than for just one case or specific group of cases. Distinguished from a court of law The procedures followed in an arbitration case are quite different from those in a court of law. The latter are formal, whereas arbitration proceedings are informal. A judge under the doctrine of stare decisis is obliged to follow precedents set by other judges. Arbitrators are not obliged to follow precedents set by other arbitrations in similar cases. The rules of evidence established in courts of law are not followed in arbitration proceedings. What might be admissible in an arbitration case would not necessarily be admissible in a court of law. The arbitrator determines what is admissible evidence. In courts of law, decisions may be appealed to a higher court, but in arbitration there is no comparable appeal recourse. With the exception of certain specialized courts, judges hear a great variety of cases and are not usually experts in the particular subject matter brought before them. Most labor arbitrators, on the other hand, have extensive background and knowledge of the manifold problem in industrial relations, and they hear only industrial disputes. This specialized experience enable them to become eminently qualified as experts in this field. The complexity of public court procedures (except in small claims court) makes it almost impossible for a person to pursue a claim without the aid of an attorney. In arbitration hearings the procedures are simple and, where the issues are not complicated and technical, the services of an attorney are not essential. Fees paid to an arbitrator are shared equally by the parties. The total cost of an arbitration proceeding is far less than costs of a lawsuit. Arbitration, in sum, is a non-technical and relatively inexpensive procedure for obtaining a quick solution to industrial disputes by persons who have specialized knowledge of labor management relations.
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Arbitrable disputes In the field of labor relations, arbitration applies to two kinds of disputes: (1) Contract negotiation disputes are disputes as to the terms of CBA. Where there is an existing agreement to arbitrate such disputes, and a bargaining deadlock or impasse has arisen, the disputants submit to an impartial outsider for settlement the collective bargaining issue which they had been unable to settle by themselves, whether or not aided by conciliators. (2) Contract interpretation disputes are disputes arising under an existing CBA, involving such matters as the interpretation and application of the contract, or alleged violation of its provisions. Arbitration of contract negotiation disputes is often known as arbitration of interest, while arbitration of contract interpretation disputes is known as arbitration of grievance or rights. The usual arbitration clauses in CBAs empower the arbitrator to only interpret the contract. Few contracts provide for the arbitration of interest disputes. When the terms and conditions of an agreement are in dispute, they are usually submitted to arbitration by means of a special contract, called a submission agreement, which is signed by the disputants. Jurisdiction of Labor Arbiter and Voluntary Arbitrator An analysis of the provisions of Articles 217, 261, 262 indicates that: 1. The jurisdiction of the LA and VA or panel of VAs over the cases enumerated in Articles 217, 261, and 262, can possibly include money claims in one form or another. 2. The cases where the LA have original and exclusive jurisdiction are enumerated in Art 217, and that of VA or panel of VAs in Art 261. 3. The original and exclusive jurisdiction of LAs is qualified by an exception as indicated in the introductory sentence (a) Except as otherwise provided under this Code the LA shall have original and exclusive jurisdiction to hear and decide the following cases involving all workers... 4. The jurisdiction of VA or panel of Vas is provided for in Art 261 and 262 of the Labor Code A. A close reading of Art 261 indicates that the original and exclusive jurisdiction of VA or panel of Vas is limited only to: unresolved grievances arising from the interpretation or implementation of the CBA and those arising from the interpretation or enforcement of company personnel policies Accordingly, violations of a CBA, except those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as grievances under the CBA... B. VA or panel of Vas, however, can exercise jurisdiction over any and all disputes between an employer and a union and/or individual worker as provided for in Art 262. It must be emphasized that the jurisdiction of the VA and panel of VAs under Art 262 must be voluntarily conferred by both labor and management. The labor disputes referred to in the same Art 262 can include any or all of those disputes mentioned in Art 217 which ordinarily are under the LAs original and exclusive jurisdiction.
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The LA had no jurisdiction to hear and decide petitioners money-claim-underpayment of
retirement benefits, as the controversy between the parties involved an issue arising from the
interpretation or implementation of a provision of the CBA. The VA or panel of VAs has original and exclusive jurisdiction over the controversy under Art 261 of the Labor Code, and not the LA. Jurisdiction over termination disputes The parties will proceed to select a VA or panel of VAs based on the procedure outlined in their CBA. But this referral by the LA presupposes that the parties had agreed in unequivocal language that the termination dispute should be submitted to grievance machinery and voluntary arbitration. Without such explicit agreement, the LA may hear and decide the case. Since there has already been an actual termination, the matter falls within the jurisdiction of the LA. Art 261 grants to VA original and exclusive jurisdiction to hear and decide all unresolved
grievances arising from then interpretation or implementation of the CBA and those arising
from the interpretation or enforcement of company personnel policies. Note the phrase unresolved grievances. In the case at bar, the termination of petitioner is not unresolved grievance. Hence, it was proper to have filed the illegal dismissal complaint with the LAs office. Further, Art 260 provides that the parties to a CBA shall name or designate their respective representative to the grievance machinery and if the grievance is unsettled in that level, it shall automatically be referred to the VAs designated in advance by the parties to a CBA of the union and the company. It can thus be deduced that only disputes involving the union and the company shall be referred to the grievance machinery or VA. Policies, Rule, Procedures Company personnel policies are guiding principles stated in broad, long-range terms that express the philosophy or beliefs of an organizations top priority regarding personnel matters. They deal with matters affecting efficiency and well-being of employees and include, among others, the procedure in the administration of wages, benefits, promotions, transfer and other personnel movements which are usually not spelled out in the collective agreement. The usual source of grievance, however, are the rules and regulations governing disciplinary actions. Company policies must be issued by top management which is responsible for making major policies that are by their nature company-wide in application. Minor policies, better known as rules and procedures, are the extension of major policies and are usually formulated by minor executives or department managers. Rules are specific guides intended to govern conduct and action of operating supervisors and employees in the performance of their designated activities.
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Procedures are made to specify ways or methods of carrying out policies and rules. A procedure tells what to work, or task to do, how to do it, and when to do it. Jurisdiction over CBA violations CBA violations not constituting ULP are likewise cognizable by a VA if not resolved through the grievance machinery. If the violations, however, are gross in character, these are to be treated as ULP which, following Art 217, are to be heard and decided by a LA. Gross violations refer to flagrant and/or malicious refusal to comply with the economic provisions of the CBA. Yet, even in gross violation cases, the parties are allowed by Rat 262 to submit the ULP case to a VA. In fact, even bargaining deadlocks and all other disputes may, by agreement of the parties, be submitted to a voluntary arbitrator. For ULP case to be cognizable by the LA, and the NLRC to exercise its appellate jurisdiction, the allegations in the complaint should show prima facie the concurrence of two things, namely: (1) gross violation of the CBA; and (2) the violation pertains to the economic provisions of the CBA Unsubstantiated conclusions of bad faith and unjustified refusal to re-employ petitioners do not constitute gross violation of the CBA for purposes of lodging jurisdiction with the LA and the NLRC. It is even doubtful if the CBA provision on re-employment fits into the accepted notion of an economic provision of the CBA. Other cases Voluntary arbitrators also have exclusive and original jurisdiction to hear and decide wage distortion issues arising from the application of any wage orders in organized establishments, as well as unresolved grievances arising from the interpretation and implementation of the productivity incentive programs under RA 6971. Upon agreement of the parties, any other labor dispute may be submitted to a VA or panel of VAs. Before or at any stage of the compulsory arbitration process, the parties may opt to submit their dispute to VA. The NLRC, its regional branches and Regional Directors of the DOLE shall not entertain disputes, grievances or matters under the exclusive and original jurisdiction of the VA or panel of VAs provided in the CBA. Dispute over companys drug abuse policy A unions petition to enjoin implementation of the companys drug policy is a labor dispute beyond RTCs jurisdiction. It is a personnel policy dispute within the jurisdiction of a VA.
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How voluntary arbitration is initiated Voluntary arbitration may be initiated either by: (1) A Submission sometimes called a stipulation or an agreement to arbitrate. It is used where there is no previous agreement to arbitrate. The Submission, which must be signed by both parties, describes an existing dispute; it often names the arbitrator, procedures in the hearing and it sometimes contains considerable details of the arbitrators authority and other matters which the parties wish to control. Submission is more appropriate in interest disputes since collective agreement generally do not provide for the arbitration of such disputes that may arise in the future. Submission is often entered into after the dispute has materialized and the issues can already be defined. (2) By a Demand or Notice invoking a collective arbitration clause more applicable to rights dispute because collective agreements are required under RA 6715 to provide for a grievance procedure and a voluntary arbitration of the agreement. Thus, there is an agreement to arbitrate future dispute that may arise under and during the term of CBA. If a dispute is covered by such an arbitration clause, arbitration may be initiated unilaterally by one party by serving upon the other a written demand or notice of intent to arbitrate. The submission agreement; extent of Arbitrators authority In general, the arbitrator is expected to decide those questions expressly stated and limited in the submission agreement. However, since arbitration is the final resort for the adjudication of disputes, the arbitrator will assume that he has the power to make final settlement. To illustrate: Assume that the submission empowers the arbitrator to decide whether Mr. X was discharged for just cause. The arbitrator in this instance would assume that his powers extended beyond giving yes-or-no answer and included the power to reinstate Mr. X with or without back pay. While some leeway is implied from the circumstances and the contract, the arbitrator will normally not prescribe proper procedures for the future relations of the parties unless expressly authorized to do so. Nor may he resolve other grievances that are not precipitated by the same facts. It is important to note that even if the particular issue is non-contractual or is not arbitrable under the contract, the parties may stipulate to arbitrate such issue in the submission agreement. The arbitrator then has full authority to handle the matter. It is thus essential to stress that the VA had plenary jurisdiction and authority to interpret the agreement to arbitrate and to determine the scope of his own authority subject only, in proper case, to the certiorari jurisdiction of the SC. The arbitrator viewed his authority as embracing not merely the determination of the abstract question of whether or not a performance bonus was to be granted but also, in the affirmative case, the amount thereof. The SC ruled that the arbitrator did not exceed his authority. Generally, the arbitrator is expected to decide only those questions expressly delineated by the submission agreement. Nevertheless, the arbitrator can assume that he has the necessary power to make a final settlement since arbitration is the final resort for adjudication disputes. The SC further said:
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The issue of regularization should be viewed as two-tiered issue. While the submission agreement mentioned only the determination of the date of regularization, law and jurisprudence give the VA enough leeway of authority as well as adequate prerogative to accomplish the reason for which the law on VA was created speedy labor justice. It bears stressing that the underlying reason why this case arose is to settle, once and for all, the ultimate question of whether respondent employees are entitled to higher benefits. To require them to file another action for payment of such benefits would certainly undermine labor proceedings and contravene the constitutional mandate providing full protection to labor. Powers of the Arbitrator a. Power to arbitrate any dispute this type of clause grants the arbitrator jurisdiction to hear and determine practically any matter in dispute between the parties. Moreover, he is not necessarily limited to matters specifically stated in the contract. It is common, however, for some relationship to be shown between the matter in dispute and the provisions of the contract. b. No power to add to or subtract from the contract such clauses clearly state the parties intention that the arbitrator will be empowered only to interpret the contract but not add to or modify it. The distinction between an award that merely interprets and one that adds to or modifies the contract is not always easy to make. What an arbitrator may consider as merely an interpretation of a contractual provision may be viewed by one of the parties as an addition to or a modification of the contract. On the other hand, a refusal by an arbitrator to rule because in his opinion he would be adding to or modifying the contract may be interpreted by one of the parties as a rationalization for refusing to make a decision. A far more effective way to narrow the range of arbitral power is to state exactly what matter he is not to handle. As general rule, the authority of an arbitrator embraces or covers the following: 1. General authority to investigate and hear the case upon notice to the parties and to render an award based on the contract and record of the case; 2. Incidental authority to perform all acts, necessary to an adequate discharge of his duties and responsibilities like setting and conduct of hearing, attendance of witnesses and production of documents and other evidence, fact-finding and other modes of discovery, reopening of hearing, etc.; 3. Special powers in aid of his general contractual authority like the authority to determine arbitrability of any particular dispute and to modify any provision of existing agreement upon which a proposed change is submitted for arbitration; 4. Authority to issue writ of execution
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Functions of arbitrator The arbitrators authority is contractual rather than judicial in nature; his power is conferred by the CBA; and his duty with respect to that agreement is to settle disputes arising thereunder by applying and interpreting that agreement. But so long as an arbitrator is not arbitrary, he has wide latitude in exercising his authority, especially in fashioning an appropriate remedy. A clause limiting the arbitrators power to add to, subtract from, or alter the provisions of the agreement does not affect the arbitrators jurisdiction but merely limits his power to fashion an award. Arbitrators interpretation of CBA It is said that an arbitral award does not draw its essence from the CBA, hence there is an unauthorized amendment or alteration thereof, if: 1. It is so unfounded in reason and fact; 2. It is so unconnected with the wording and purpose of the agreement; 3. It is without factual support in view of its language, its context, and any other indicia of the parties intention; 4. It ignores or abandons the plain language of the contract; 5. It is mistakenly based on a crucial assumption which concededly is a non-fact; 6. It is unlawful, arbitrary or capricious; and 7. It is contrary to public policy If the terms of a CBA are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of its stipulation shall prevail. However, if, in a CBA, the parties stipulate that the hires must be presumed of employment qualification standards but fail to state such qualification standards in said CBA, the VA may resort to evidence extrinsic of the CBA to determine the full agreement intended by the parties. When a CBA may be expected to speak on a matter, but does not, its sentence imports ambiguity on that subject. In order to ascertain the intention of the contracting parties, their contemporaneous and subsequent acts shall be principally considered. The VA may also consider and rely upon negotiating and contractual history of the parties, evidence of past practices interpreting ambiguous provisions. The VA has to examine such practices to determine the scope of their agreement, as where the provision of the CBA has been loosely formulated.
ARTICLE 262-A. Procedures. - The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have the power to hold hearings, receive evidences and take whatever action is necessary to resolve the issue or issues subject of the dispute, including efforts to effect a voluntary settlement between parties. All parties to the dispute shall be entitled to attend the arbitration proceedings. The attendance of any third party or the exclusion of any witness from the proceedings shall be determined by the Voluntary Arbitrator or panel of Voluntary Arbitrators. Hearing may be adjourned for cause or upon agreement by the parties. Unless the parties agree otherwise, it shall be mandatory for the Voluntary Arbitrator or panel of Voluntary Arbitrators to render an award or decision within twenty (20) calendar days from the date of submission of the dispute to voluntary arbitration.
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Labor Relations (Finals Coverage, source: Azucena, cases), mary 2012 _________________________________________________________________________ The award or decision of the Voluntary Arbitrator or panel of Voluntary Arbitrators shall contain the facts and the law on which it is based. It shall be final and executory after ten (10) calendar days from receipt of the copy of the award or decision by the parties. Upon motion of any interested party, the Voluntary Arbitrator or panel of Voluntary Arbitrators or the Labor Arbiter in the region where the movant resides, in case of the absence or incapacity of the Voluntary Arbitrator or panel of Voluntary Arbitrators, for any reason, may issue a writ of execution requiring either the sheriff of the Commission or regular courts or any public official whom the parties may designate in the submission agreement to execute the final decision, order or award.
Compliance with the duty to arbitrate If a CBA requires settlement of disputes exclusively by the arbitration, then arbitration is needed before court suits for breach of the contract may be filed. Nonetheless, then parties to a CBA may waive the arbitration covenants of the agreement, but their conduct must clearly show that intention. Who determines the arbitration procedures In practice, voluntary arbitration of labor cases use procedures based on the Labor Code as amended and its Implementing Rules, the CBA, and other agreement of the parties, the directives of the arbitrator, and the procedural rules of appropriate agencies like the NCMB Procedural Guidelines in Conduct of Voluntary Arbitration Proceedings. In the appreciation of evidence, the arbitrator is not bound by the Rules of Court. Ethical standards of arbitrators Since in effect, he is a judge, and his ethics must be on the same high level as the code that governs the conduct of judicial tribunals. Failure on the part of the voluntary arbitrator to render a decision, resolution, order or award within the prescribed period shall, upon complaint of a party, be sufficient ground for the Board to discipline said voluntary arbitrator, pursuant to the guidelines issued by the Secretary. In cases where the recommended sanction is de-listing, it shall be unlawful for the VA to refuse or fail to turn over to the Board, for its further disposition, the records of the case within ten calendar days from the demand thereof. Voluntary arbitration award, generally final; exceptions In spite of statutory provisions making final the decisions of certain administrative agencies, the SC may take cognizance of petitions questioning these decisions where want of jurisdiction, grave abuse of discretion, violation of due process, denial of substantial justice, or erroneous interpretation of the law are brought to its attention. The Labor Code and its Implementing Rules reflect the important public policy of encouraging recourse to voluntary arbitration and of shortening the arbitration process by rendering the arbitral award non-appealable to the NLRC. The result is that a voluntary arbitral award may
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be modified and set aside only upon the grounds on which a decision of the NLRC itself may be modified or set aside by the SC. Motion for reconsideration Sec. 7, Rule XIX of D.O. 40-03 appears to depart from previous rules and rulings. It reads: The decision, order, resolution or award of the VA or panel of VAs shall be final and executory after 10 calendar days from receipt of the copy of the award or decision by the parties and it shall not be subject of a motion for reconsideration. Review of award by certiorari The VA, whether acting solely or in a panel, enjoys in law the status of quasi-judicial agency but independent of, and apart from, the NLRC since his decisions are not appealable to the latter. Sec. 9 of BP Blg. 129 provides that the CA shall exercise exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards of RTC and quasi-judicial agencies, instrumentalities, boards or commissionsexcept those falling within the appellate jurisdiction of the SC in accordance with the Constitution, Labor Code, . Assuming arguendo that the VA or panel of VAs may not strictly be considered as a quasijudicial agency, board or commission, still both he and the panel are comprehended within the concept of a quasi-judicial instrumentality. The VA no less performs a state function pursuant to a governmental power delegated to him under the provisions therefor in the Labor Code and he falls, therefor, within the contemplation of the term instrumentality. The fact the his functions and powers are provided in the Labor Code does not place him within the exceptions to said Sec 9 since he is a judicial instrumentality as contemplated therein. A fortiori, the decision or award of the VA or panel of VAs should likewise be appealable to the CA, in line with the procedure outlined in Revised Administrative Circular no. 1-95, just like those of the quasi-judicial agencies, boards and commissions enumerated therein. In effect, this equates the award or decision of the VA with that of the RTC. Consequently, in a petition for certiorari from that award or decision, the CA must be deemed to have concurrent jurisdiction with the CS. From VA to CA: Mode of appeal is Rule 43, not 45 It is not settled that an appeal from the decision of a VA falls within the exclusive appellate jurisdiction of the CA. Indeed, the SC took this decision into consideration in approving the 1997 Rules of Civil Procedure. The mode of appeal from VA to the CA is therefore Rule 43 of the 1997 Rules of Procedure. It is not Rule 65 because a petition for certiorari under that Rule lies only where there is no appeal and no plain, speedy and adequate remedy in the ordinary course of law. Certiorari under Rule 65 cannot be allowed when a party fails to appeal a judgment despite availability of that remedy. Certiorari is not a substitute for lost appeal. exclusive and not alternative or successive.
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Appeal and certiorari are mutually
Finding of facts of a voluntary arbitrator There is no merit in the contention that only questions of law, and not findings of fact, of a voluntary arbitrator may be reviewed by the SC. While the Court has accorded great respect for, and finality to, findings of fact of VA and administrative agencies, which have acquired expertise in their respective fields, like the DOLE and NLRC, their findings of fact and the conclusions drawn therefrom have to be supported by substantial evidence. In the instant case, the finding of the VA that X was an employee of the petitioner corporation is not supported by the evidence or by the law.
ARTICLE 262-B. Cost of voluntary arbitration and Voluntary Arbitrators fee. - The parties to a Collective Bargaining Agreement shall provide therein a proportionate sharing scheme on the cost of voluntary arbitration including the Voluntary Arbitrators fee. The fixing of fee of Voluntary Arbitrators, whether shouldered wholly by the parties or subsidized by the Special Voluntary Arbitration Fund, shall take into account the following factors: (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.
UNFAIR LABOR PRACTICES

ARTICLE 247. Concept of unfair labor practice and procedure for prosecution thereof. - Unfair labor practices violate the constitutional right of workers and employees to self-organization, are inimical to the legitimate interests of both labor and management, including their right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect, disrupt industrial peace and hinder the promotion of healthy and stable labor-management relations. Consequently, unfair labor practices are not only violations of the civil rights of both labor and management but are also criminal offenses against the State which shall be subject to prosecution and punishment as herein provided. Subject to the exercise by the President or by the Secretary of Labor and Employment of the powers vested in them by Articles 263 and 264 of this Code, the civil aspects of all cases involving unfair labor practices, which may include claims for actual, moral, exemplary and other forms of damages, attorneys fees and other affirmative relief, shall be under the jurisdiction of the Labor Arbiters. The Labor Arbiters shall give utmost priority to the hearing and resolution of all cases involving unfair labor practices. They shall resolve such cases within thirty (30) calendar days from the time they are submitted for decision. Recovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code. No criminal prosecution under this Title may be instituted without a final judgment finding that an unfair labor practice was committed, having been first obtained in the preceding paragraph. During the pendency of such administrative proceeding, the running of the period of prescription of the criminal offense herein penalized shall be considered interrupted: Provided, however, that the final judgment in the administrative proceedings shall not be binding in the criminal case nor be considered as evidence of guilt but merely as proof of compliance of the requirements therein set forth.
Concept of unfair labor practice The offense is technically called unfair labor practice. Literally, it does not mean an unfair practice by labor but a practice unfair to labor, although the offender may either be an employer or a labor organization.
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The victim of the offense is not just the workers as a body and the well-meaning employers who value industrial peace, but the State as well. Thus, the attack to this constitutional right is considered a crime which therefore carries both civil and criminal liabilities. The reason for the distinction between an unfair labor practice case and a mere violation of an employer of its contractual obligation towards an employee is that unfair labor practice cases involve violation of public right or policy, to be prosecuted like criminal offenses, whereas a breach of an obligation of the employer to his employees is only a contractual breach to be redressed like an ordinary contract or obligation. Elements Commission of ULP at the enterprise level needs the presence of certain elements: 1. There is employer-employee relationship between the offender and the offended is required because ULP is negation of, a counteraction to, the right to organize which is available only to employees in relation to their employer. No organizational right can be negated or assailed if ER-EE relationship is absent in the first place. 2. The act done is expressly defined in the Labor Code as an act of unfair labor practice The second element is that the act done is prohibited by the Code, specifically in Articles 248 and 261 for an employer and Art 249 for a labor organization. Article 212(k) emphatically defines unfair labor practice as any unfair labor practice as expressly defined by this Code. The prohibited acts, it should be stressed, are all related to the workers self-organizational right and to the observance of collective bargaining agreement. The only possible exception is Art 248(f) referring to dismissing or prejudicing an employee for giving testimony under this Code [regardless of the subject of the testimony]. Because ULP is and has to be related to the right to self-organization and to the observance of the CBA, it follows that not every unfair act is unfair labor practice. A business man, for instance, who eases out his loyal partner so that he alone can amass the profits, may be unfair and ungrateful to his partner, but he is not committing ULP. The partner is not an employee and removing him has nothing to do with workers right to organize. Similarly, if a manager promotes an employee on the basis of personal acquaintance and not of qualifications and performance, he may be unfair to the better qualified employees, but is not guilty of ULP. Promoting an employee not on the basis of merits may be bad human resource management but it does not amount to ULP. ULP, therefore, has a limited, technical meaning because it is a labor relations concept with a statutory definition. It refers only to acts opposed to workers right to organize, without that element, the act, no matter how unfair, is not ULP as legally defined. Stripped of legalese, ULP, when committed by the employer, commonly connotes anti-unionism. Prejudice to public interest not an element of ULP A showing of prejudice to the public interest is not a requisite for ULP charges to prosper. Prosecution of ULP Under Art 247, ULP has civil as well as criminal aspects. The civil aspect may include liability for damages and these may be passed upon by a labor arbiter. To prosecute ULP as a criminal offense is not possible until after finality of judgment in the labor case, finding that the respondent indeed committed ULP. But such judgment will not serve as evidence of ULP in the criminal case. Moreover, while only substantial evidence is
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required in the labor case in the NLRC, proof beyond reasonable doubt is needed to convict in the criminal case of ULP. The criminal charge, states Art 288, falls under the concurrent jurisdiction of the MTC or RTC. The same article defines the penalty of fine and/or imprisonment. Under Art 289, the penalty shall be imposed upon the guilty officers of a corporation, partnership, association or entity. If the ULP is committed by a labor organization the parties liable are those mentioned in Art 249. The offense prescribes in one year. Unfair Labor Practices of Employers
ARTICLE 248. Unfair labor practices of employers. - It shall be unlawful for an employer to commit any of the following unfair labor practice: (a) To interfere with, restrain or coerce employees in the exercise of their right to self-organization; (b) To require as a condition of employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs; (c) To contract out services or functions being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their rights to self-organization; (d) To initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization, including the giving of financial or other support to it or its organizers or supporters; (e) To discriminate in regard to wages, hours of work and other terms and conditions of employment in order to encourage or discourage membership in any labor organization. Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment, except those employees who are already members of another union at the time of the signing of the collective bargaining agreement. Employees of an appropriate bargaining unit who are not members of the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such non-union members accept the benefits under the collective bargaining agreement: Provided, that the individual authorization required under Article 242, paragraph (o) of this Code shall not apply to the non-members of the recognized collective bargaining agent; (f) To dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code; (g) To violate the duty to bargain collectively as prescribed by this Code; (h) To pay negotiation or attorneys fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute; or (i) To violate a collective bargaining agreement. The provisions of the preceding paragraph notwithstanding, only the officers and agents of corporations, associations or partnerships who have actually participated in, authorized or ratified unfair labor practices shall be held criminally liable.
Conditions precedent to ULP charge Before an employee may be considered aggrieved by an alleged ULP by an employer, it must be demonstrated, firstly, that the injured party comes within the definition of employee as that term is defined by the Code, and secondly, the act as ULP must fall under the prohibitions of Art 248 (acts of the employer) or Art 249 (acts of the union). Considering that the employees dismissal, because of charges against the manager is not connected with or necessarily arising from union activities, (inconsiderate and untactful attitude towards the employees and clients of the company) the dismissal did not constitute ULP. Despite the employees right to self-organization, the employer still retains his inherent right to discipline his employees, his normal prerogative to hire or dismiss them. In this case,
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the Court ruled that the dismissal of the employee was unjustified, but the employer did not commit ULP because the act has no union connection. No ULP: Illustrative instances of valid exercise of management rights The law on ULP is not intended to deprive the employer of his fundamental right to prescribe and enforce such rules as he honestly believes to be necessary to the proper, productive and profitable operation of his business. Nor are his rights of selection ad discharge of his employees wrested from him. a. Personnel movements As a rule, it is the prerogative of the company to promote, transfer or even demote its employees to other position when the interests of the company reasonably demand it. Unless there are instances which directly point to interference by the company with the employees rights to self-organization, the transfer of an employee should be considered as within the bounds allowed by law, e.g., where despite his transfer to a lower position, his original rank and salary remained undiminished. It is likewise the companys prerogative to promote its employees to managerial positions. Managerial positions are offices which can only be held by persons who have the trust of the corporation and its officers. They should not be prevented from doing so. A promotion which is manifestly beneficial to an employee should not give rise to a gratuitous speculation that such a promotion was made simply to deprive the union of the membership of the promoted employee. b. c. Acceptance of mass resignation Acceptance of voluntary resignation is not ULP. Grant of profit-sharing benefits to non-union members There can be no discrimination committed by the employer as the situation of the union employees is different from that of the non-union employees. Discrimination per se is not unlawful. There can be no discrimination where the employees concerned are not similarly situated. The grant by the employer of profitsharing benefits to the employees outside the bargaining unit falls under the ambit of its managerial prerogative. d. Forced vacation leave Where the vacation leave without pay, which the employer requires employees to take in view of the economic crisis, is neither malicious, oppressive, or vindictive, ULP is not committed. e. Issuance of rules or policy the new marketing scheme in issue was viewed by the union as ULP since the complementary distribution system would reduce the take-home pay of the salesmen and their truck helpers, for the company would be unfairly competing with them. The Court ruled that every business enterprise endeavors to increase its profits. In the process, it may adopt or devise means designed towards that goal. The scheme is management prerogative. f. Taking action against slowdown - Employees have the right to strike, but they have no right to continue working on their own terms while rejecting the standards desired by their employer. Hence, an employer does not commit ULP by discharging employees who engage in a slowdown, even if their object is a pay increase which is lawful. Moreover, an employer does not violate the act by discharging only some of the employees who participate in the slowdown where he discharges them to serve as an example to stop the slowdown and not for discriminatory reasons. Determination of validity An employer may treat freely with an employee and is not obliged to support his actions with a reason or purpose. However, where the attendant circumstances, the history of the employers past conduct and like considerations, coupled with an intimate connection between
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the employers action and the union affiliations or activities of the particular employee or employees taken as a whole raise a suspicion as to the motivation for the employers action, the failure of the employer to ascribe a valid reason therefor may justify an inference that his unexplained conduct in respect of the particular employee or employees was inspired by the latters union membership or activities. First ULP: Interference (Art 248[a]) Outright and unconcealed intimidation is, of course, the most obvious form of interference. Needless to say, such conduct on the employers part, even if only on one occasion, constitutes ULP and will support a cease and desist order by the Board. Interference with employee organizational rights was found where the superintendent of the employer threatened the employees with cutting their pay, increasing rent of the company houses, or closing the plant if they supported the union and where the employer encouraged the employees to sign a petition repudiating the union. Respondent companys act in dismissing the petitioners, who then constituted the remaining and entire officialdom of the Roche Products Labor Union, after the unions president and vice-president had been earlier dismissed, and when the CBA in the company was about to be renegotiated, was a ULP. Their dismissal, under the circumstances, amounted to interference with, and restraint or coercion of, the petitioners in the exercise of their right to engage in concerted activities for their mutual aid and protection. Interrogation Persistent interrogation of employees to elicit information as to what had happened at union meetings and the identity of the active union employees was held as violative of organizational rights of employees. In order that the questioning of an employee concerning his union activities would not be deemed coercive, the employer must communicate to the employee the purpose of the questioning, assure him that no reprisal would take place, and obtain his participation on a voluntary basis. In addition, questioning must also occur in a context free from employer hostility to union organization and must not itself be coercive in nature. Interrogating an employee as to his union affiliation is not per se ULP but circumstances may make it as such. ULP even before union is registered Under Art 248(a) of the Labor Code, to interfere with, restrain, or coerce employees in their exercise of the right to self-organization is a ULP on the part of the employer. Paragraph (d) of said article also considers it a ULP of an employer 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. In short, an employer who interfered with the right to self-organization before th union is registered can be held guilty of ULP. Prohibiting organizing activities A rule prohibiting solicitation of union membership in company property is unlawful if it applies to non-working time as well as to working time. Where majority of the employees live on the premises of the employer and cannot be reached by any means or procedures practically available to union organizers, the employer may be
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required to permit non-employee union organizers to come within its premises, in order to solicit employees. However, in the absence of showing that the illegal dismissal was dictated by anti-union motives, the same does not constitute a ULP as would be a valid ground for strike. The remedy is an action for reinstatement with backwages and damages. The following are further examples of unlawful acts to discourage membership in a labor organization: (1) Dismissal of union members upon their refusal to give up their membership, under the pretext
of retrenchment due to reduced dollar allocations; (2) Refusal over a period of years to give salary adjustments; (3) Dismissal of an old employee allegedly for inefficiency, on account of her having joined and engaging in union activities. The respondent company deserves strongest condemnation for ignoring the petitioners
permission for some time out to attend to the hearing of their petition for certification election before the med-arbiter. It is only an act of arrogance, but a brazen interference as well, with the employees right to self-organization, contrary to the prohibition of the Labor Code against ULP. ULP cases are not, in view of public interest involved, subject to compromises. Violence or intimidation Two employees were dismissed for violation of a company rule against fights in the premises or during working hours. It appears, however, that said employees, who were union officers, were provoked into a fight by two recently hired employees. It was shown that they were provoked to fight because the company wanted to create an apparently lawful cause for their dismissal. The dismissed employees, in fact, had not figured in similar incidents before or violated company rules in their many years with the company. This strategy of the company is ULP. Espionage and surveillance This device consists of using one or a small group of employees, or other agents, inspired by profit, opportunism, vengeance or some kind of human frailty to use his or their access to employees quarters and affairs for the purpose of spying upon fellow employees and reporting back to the employer. When an employer engages in surveillance or takes steps leading his employees to believe it is going on, a violation results because the employees come under threat of economic coercion or retaliation for their union activities. Unlawful surveillance was properly found where supervisors were present near the place where union meeting was being held to check the names of employees leaving a meeting. Economic inducements A violation results from an employers announcement of benefits prior to a representation election, where it is intended to induce the employees to vote against a union.
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Employers expression of opinion; totality of conduct doctrine The doctrine holds that the culpability of employers remarks is to be evaluated not only on the basis of their implications, but against the background of and in conjunction with collateral circumstances. Under this doctrine, expressions of opinion by an employer, though innocent in themselves, frequently were held to be culpable because of the circumstances under which they were uttered, the history of the particular employers labor relations or anti-union bias or because of their connection with an established collateral plan of coercion or interference. Under this doctrine it was held, that an expression which might be permissibly uttered by one employer, might, in the mouth of a hostile employer, be deemed improper and consequently actionable as a ULP.
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Labor Relations Rights and Organizations

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Labor Relations Rights and Organizations

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Labor Relations (Finals Coverage, source: Azucena, cases), mary 2012 _________________________________________________________________________

TOPIC 12: RIGHT TO SELF ORGANIZATION

2. A holder of Bachelors Degree in any field of behavioral or applied sciences or equivalent

The LA had no jurisdiction to hear and decide petitioners money-claim-underpayment of

Appeal and certiorari are mutually

UNFAIR LABOR PRACTICES

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