Professional Documents
Culture Documents
COVERAGE
Article 243. Coverage and employees right to self-organization.
All persons employed in commercial, industrial and agricultural
enterprises and in religious, charitable, medical, or educational
institutions, whether operating for profit or not, shall have the right
to self-organization and to form, join, or assist labor organizations
of their own choosing for purposes of collective bargaining.
Ambulant, intermittent and itinerant workers, self-employed
people, rural workers and those without any definite employers
may form labor organizations for their mutual aid and protection.
(As amended by Batas Pambansa Bilang 70, May 1, 1980).
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1. ORGANIZING IN GENERAL
The rights to organize and to bargain, in a general sense, are given
not exclusively to employees. Even workers who are not
employees of any particular employer may form their
organizations to protect their interests.
Under Art. 243 of this Code, the right to organize refers also to
forming, joining or assisting a labor organization. Connected to
Art. 246 this right carries with it the right to engage in group
action, provided it is peaceful, to support the organizations
objective which is not necessarily bargaining but, simply, to aid
and protect its members. But this kind of group action must be
differentiated from strike which, because it is work stoppage, must
observe certain regulation; otherwise, the strike may be declared
illegal and its leaders may be thrown out of their jobs.
1.1 Coverage of the Right to Organize; Exceptions
The right to form, join or assist a labor organization is granted to
all kinds of employees of all kinds of employerspublic or
private, profit or non-profit, commercial or religious. Their usual
form of organization is a union and the usual purpose is collective
bargaining with their employers.
But the seemingly all-inclusive coverage of all persons in Article
243 actually admits exceptions. Under Art. 245, for instance,
managerial employees, regardless of the kind of organization
where they are employed, may not join, assist or form any labor
organization, meaning a labor union.
Accordingly, managerial employees cannot, in the absence of an
agreement to the contrary, be allowed to share in the concessions
obtained by the labor union through collective negotiation.
Otherwise, they would be exposed to the temptation of colluding
with the union during the negotiations to the detriment of the
employer. However, there is nothing to prevent the employer from
granting benefits to managerial employees equal to or higher than
those afforded to union members.
Supervisors are allowed to organize, but they cannot for, join or
assist a rank-and-file union.
2. RIGHT TO ORGANIZE CANNOT BE BARGAINED
AWAY
LABOR RELATIONS
Although we have upheld the validity of the CBA as the law
among the parties, its provisions cannot override what is expressly
provided by law that only managerial employees are ineligible to
join, assist or form any labor organization. Therefore, regardless of
the challenged employees' designations, whether they are
employed as Supervisors or in the confidential payrolls, if the
nature of their job does not fall under the definition of
"managerial" as defined in the Labor Code, they are eligible to be
members of the bargaining unit and to vote in the certification
election. Their right to self-organization must be upheld in the
absence of an express provision of law to the contrary. It cannot be
curtailed by a collective bargaining agreement.
3. EMPLOYEES OF NONPROFIT INSTITUTIONS
Under Article 243 of the Labor Code, the rank-and-file employees
of non-profit medical institutions are permitted to form, organize
or join labor unions of their choice for purposes of collective
bargaining. If the union has complied with the requisites provided
by law for calling a certification election, it is incumbent upon the
DOLE Regional Director to conduct such certification election to
ascertain the bargaining representative of the hospital employees.
4.
EXCEPTION:
COOPERATIVE
EMPLOYEE-MEMBERS
OF
LABOR RELATIONS
While the members of a cooperative who are also its employees
cannot unionize for bargaining purposes, the law does not prohibit
them from forming an association for their mutual aid and
protection as employees.
D.O. No. 40-03 allows and defines a workers association as one
which is organized for the mutual aid and protection of its
members or for any legitimate purpose other than collective
bargaining.
5. EXCEPTION: INTERNATIONAL ORGANIZATIONS
A certification election cannot be conducted in an international
organization which the Philippine Government has granted
immunity from local jurisdiction.
The grant of such immunity is a political question whose
resolution by the executive branch of government is conclusive
upon the courts
(1) International Organization and Specialized AgenciesThe term
"international organization" is generally used to describe an organization
set up by agreement between two or more states. Under contemporary
international law, such organizations are endowed with some degree of
international legal personality such that they are capable of exercising
specific rights, duties and powers. They are organized mainly as a means
for conducting general international business in which the member states
have an interest. The United Nations, for instance, is an international
organization dedicated to the propagation of world peace. "Specialized
agencies" are international organizations having functions in particular
fields. The term appears in Articles 57 and 63 of the Charter of the United
Nations.
(2) Principles Underlying the Grant of International Immunities to
International OrganizationsThere are basically three propositions
underlying the grant of international immunities to international
organizations. These principles, contained in the ILO Memorandum are
stated thus: 1) international institutions should have a status which
protects them against control or interference by any one government in the
performance of functions for the effective discharge of which they are
responsible to democratically constituted international bodies in which all
the nations concerned are represented; 2) no country should derive any
national financial advantage by levying fiscal charges on common
international funds; and 3) the international organization should, as a
collectivity of States members, be accorded the facilities for the conduct
of its official business customarily extended to each other by its individual
member States. The theory behind all three propositions is said to be
essentially institutional in character. "It is not concerned with the status,
dignity or privileges of individuals, but with the elements of functional
independence necessary to free international institutions from national
control and to enable them to discharge their responsibilities impartially
on behalf of all their members. The raison d'etre for these immunities is
the assurance of unimpeded performance of their functions by the
agencies concerned.
(3) Labors Basic Rights RemainThe immunity of International Catholic
Migration Commission (ICMC) and the International Rice Research
Institution (IRRI) from local jurisdiction by no means deprives labor of its
basic rights, which are guaranteed by Article II, Section 18, Article III,
Section 8, and Article XIII, Section 3, of the 1987 Constitution; and
implemented by Articles 243 and 246 of the Labor Code.
(4) Certification Election Barred by ImmunityThe immunity granted
being "from every form of legal process except in so far as in any
particular case they have expressly waived their immunity," it is
inaccurate to state that a certification election is beyond the scope of that
immunity for the reason that it is not a suit against ICMC. A certification
election cannot be viewed as an independent or isolated process. It could
trigger off a series of events in the collective bargaining process together
with related incidents and/or concerted activities, which could inevitably
involve ICMC in the "legal process," which includes any penal, civil and
administrative proceedings. The eventuality of Court litigation is neither
remote and from which international organizations are precisely shielded
to safeguard them from the disruption of their functions. Clauses on
jurisdictional immunity are said to be standard provisions in the
constitutions of international Organizations. The immunity covers the
organization concerned, its property and its assets...
LABOR RELATIONS
The highest law of the land guarantees to government employees
the right to organize and to negotiate, but not the right to strike.
1.1 Limited Purpose
The extent of the government employees' right of self-organization
differs significantly from that of employees in the private sector.
The latter's right of self-organization, i.e., "to form, join or assist
labor organizations for purposes of collective bargaining,"
admittedly includes the right to deal and negotiate with their
respective employers in order to fix the terms and conditions of
employment and also, to engage in concerted activities for the
attainment of their objectives, such as strikes, picketing, boycotts.
But the right of government employees to "form, join or assist
employees organizations of their own choosing" under Executive
Order No. 180 is not regarded as existing or available for
"purposes of collective bargaining," but simply "for the
furtherance and protection of their interests."
In other words, the right of Government employees to deal and
negotiate with their respective employers is not quite as extensive
as that of private employees. Excluded from negotiation by
government employees are the "terms and conditions of
employment...that are fixed by law," it being only those terms and
conditions not otherwise fixed by law that "may be subject of
negotiation between the duly recognized employees' organizations
and appropriate government authorities."
Declared to be 'not negotiable' are matters "that require appropriation of
funds;" e.g., increase in salary emoluments and other allowances, car plan,
special hospitalization, medical and dental services, increase in retirement
benefits (Sec. 3, Rule VIII), and those "that involve the exercise of
management
prerogatives;"
e.g.,
appointment,
promotion,
assignment/detail, penalties as a result of disciplinary actions, etc. (Sec. 4,
Id.) Considered negotiable are such matters as schedule of vacation and
other leaves, work assignment of pregnant women; recreational, social,
athletic, and cultural activities and facilities, etc. (Sec. 2, Id.).
2. REGISTRATION
Sec. 7. Government employees' organizations shall register with the
Civil Service Commission and the Department of Labor and Employment.
The application shall be filed with the Bureau of Labor Relations of the
Department which shall process the same in accordance with the
provisions of the Labor Code of the Philippines, as amended. Applications
may also be filed with the Regional Offices of the Department of Labor
and Employment which shall immediately transmit the said applications
to the Bureau of Labor Relations within three (3) days from receipt
thereof.
Sec. 8. Upon approval of the application, a registration certificate be
issued to the organization recognizing it as a legitimate employees'
organization with the right to represent its members and undertake
activities to further and defend its interest. The corresponding certificates
of registration shall be jointly approved by the Chairman of the Civil
Service Commission and Secretary of Labor and Employment. (E.O. No.
180)
3. CERTIFICATION
CORPORATION
ELECTION
IN
GOVERNMENT
LABOR RELATIONS
It is quite clear from this provision that BLR has the original and
exclusive jurisdiction on all inter-union and intra-union conflicts.
An intra-union conflict would refer to a conflict within or inside a
labor union, and an inter-union controversy or dispute, one
occurring or carried on between or among unions. The subject of
the case at bar, which is the election of the officers and members
of the board of KMKK-MWSS, is, clearly, an intra-union conflict,
being within or inside a labor union. It is well within the powers of
the BLR to act upon.
4. WHEN PSLMC MAY RULE ON LEGALITY OF
DISMISSAL
The Public Sector Labor-Management Council, created by
Executive Order No. 180 (June 1, 1987) has jurisdiction to hear
charges of unfair labor practice filed by government employees
against their employer, e.g., the Pamantasan ng Lungsod ng
Maynila. In deciding the ULP charge the PSLMC may also rule on
the complainants dismissal if the two issuesULP and dismissal
are unavoidably interlinked.
5. UNION-BUSTING IN A GOVERNMENT AGENCY, U.L.P.
5.1 Even Temporary Employees May Organize
Even temporary employees enjoy the basic right to form
organization or association for purposes not contrary to law.
Under Art. 277(c) of the Labor Code, any employee, whether
employed for a definite period of not, shall beginning on his first
day of service, be considered an employee for purposes of
membership in any labor union.
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Article 245. Ineligibility of managerial employees to join any labor
organization; Right of Supervisory Employees. - Managerial
employees are not eligible to join, assist or form any labor
organization. Supervisory employees shall not be eligible for
membership in the collective bargaining unit of the rank-and-file
employees but may join, assist or form separate collective
bargaining units and/or legitimate labor organizations of their own.
The rank-and-file union and the supervisors union operating
within the same establishment may join the same federation or
national union. (As amended by Section 18, Republic Act No.
6715, March 21, 1989 and Section 8, Republic Act No. 9481
which lapsed into law on May 25, 2007 and became effective on
June 14, 2007).
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1. CATEGORIES OF EMPLOYEES
RA 6715 which took effect on March 21, 1989 (15 days after its
publication in the "Philippines Daily Inquirer") provides that
although "supervisory employees shall not be eligible for
membership in a labor organization of the rank and file
employees," they may, however, "join, assist or form separate
labor organization of their own."
2. INELIGIBILITY OF MANAGERS
2.1 Types of Managerial Employees
3. EVOLUTION
ORGANIZE
OF
SUPERVISORS
RIGHT
TO
LABOR RELATIONS
But to make one a supervisor, the power to recommend must not
be merely routinary or clerical in nature but requires the use of
independent judgment. In other words, the recommendation is (1)
discretionary or judgmental (not clerical), (2) independent (not a
dictation of someone else), and (3) effective (given particular
weight in making the management decision). If these qualities are
lacking or, worse, if the power to recommend is absent, then the
person is not really a supervisor but a rank-and-file employee and
therefore belongs or should belong to a rank-and-file organization.
Similarly, a so-called manager, no matter how his position is titled,
is not really a manager in the eyes of the law if he does not possess
managerial powers (to lay down and execute management policies
and/ or to hire, transfer, suspend, lay-off, recall, discharge, assign
or discipline employees). If he can only recommend the exercise
of any of these powers, he is only a supervisor, hence, may join,
assist or form a supervisors organization.
5. TEST OF SUPERVISORY STATUS
The test of "supervisory" or "managerial status" depends on whether a
person possesses authority to act in the interest of his employer in the
matter specified in Article 212 (k) of the Labor Code and Section 1 (m) of
its Implementing Rules and whether such authority is not merely routinary
or clerical in nature, but requires the use of independent judgment. Thus,
where such recommendatory powers as in the case at bar, are subject to
evaluation, review and final action by the department heads and other
higher executives of the company, the same, although present, are not
effective and not an exercise of independent judgment as required by law.
It is the nature of an employee's functions and not the nomenclature or
title given to his job which determines whether he has rank-and-file or
managerial status. Among the characteristics of managerial rank are: (1)
He is not subject to the rigid observance of regular office hours; (2) His
work requires the consistent exercise of discretion and judgment in its
performance; (3) the output produced or the result accomplished cannot be
standardized in relation to a given period of time; (4) He manages a
customarily recognized department or subdivision of the establishment,
customarily and regularly directing the work of other employees therein;
(5) He either has the authority to hire or discharge other employees or his
suggestions and recommendations as to hiring and discharging,
advancement and promotion or other change of status of other employees
are given particular weight; and (6) As a rule, he is not paid hourly wages
nor subjected to maximum hours of work.
OF
RANK-AND-FILE
AND
LABOR RELATIONS
This policy of segregating the supervisors union from that of the
rank-and-file is founded on fairness to the employees themselves.
It will be doubly detrimental to the employer if the supervisors and
the rank-and-file, as members of only one union, could take a
common stand against the employer.
6.1 Effects of Having Mixed Membership
A union whose membership is a mixture of supervisors and rankand-file is not and cannot become a legitimate labor organization.
It cannot petition for a certification election, much less ask to be
recognized as the bargaining representative of employees.
The Labor Code has made it a clear statutory policy to prevent
supervisory employees from joining labor organizations consisting of
rank-and-file employees as the concerns which involve members of either
group are normally disparate and contradictory.
Clearly, based on Article 245, a labor organization composed of both rankand-file and supervisory employees is no labor organization at all. It
cannot, for any guise or purpose, be a legitimate labor organization. Not
being one, an organization which carries a mixture of rank-and-file and
supervisory employees cannot possess any of the rights of a legitimate
labor organization, including the right to file a petition for certification
election for the purpose of collective bargaining. It becomes necessary,
therefore, anterior to the granting of an order allowing a certification
election, to inquire into the composition of any labor organization
whenever the status of the labor organization is challenged on the basis of
Article 245 of the Labor Code.
The rationale behind the Code's exclusion of supervisors from unions of
rank-and-file employees is that such employees, while in the performance
of supervisory functions, become the alter ego of management in the
making and the implementing of key decisions at the sub-managerial
level. Certainly, it would be difficult to find unity or mutuality of interests
in a bargaining unit consisting of a mixture of rank-and-file and
supervisory employees. And this is so because the fundamental test of a
bargaining unit's acceptability is whether or not such a unit will best
advance to all employees within the unit the proper exercise of their
collective bargaining rights. The Code itself has recognized this, in
preventing supervisory employees from joining unions of rank-and-file
employees.
7. CONFIDENTIAL EMPLOYEES
7.1 First Swing: Inclusion Among Rank-and-File
7.2 Second Swing: Exclusion from Rank-and-File
7.3 Third Swing: Inclusion Among Supervisors
7.4 Fourth Swing: Inclusion Among Monthly Paid Rank-and-File
7.4a Limited Exclusion; Doctrine of Necessary Implication
A confidential employee is one entrusted with confidence on
delicate matters, or with the custody, handling, or care and
protection of the employer's property. While Art. 245 of the Labor
Code singles out managerial employees as ineligible to join, assist
or form any labor organization, under the doctrine of necessary
implication, confidential employees are similarly disqualified.
The doctrine of necessary implication means that what is implied
in a statute is as much a part thereof as that which is expressed.
Art. 245 of the Labor Code does not directly prohibit confidential
employees from engaging in union activities. However, under the
doctrine of necessary implication, the disqualification of
managerial employees equally applies to confidential employees.
The confidential-employee rule justifies exclusion of confidential
employees because in the normal course of their duties they
become aware of management policies relating to labor relations.
It must be stressed, however, that when the employee does not
have access to confidential labor relations information, there is no
legal prohibition against confidential employees from forming,
assisting, or joining a union.
LABOR RELATIONS
Under the old rules, security guards were barred from joining a
labor organization of the rank-and-file. Under RA 6715, they may
now freely join a labor organization of the rank-and-file or that of
the supervisory union, depending on their rank.
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Article 245-A. Effect of inclusion as members of employees
outside the bargaining unit. - The inclusion as union members of
employees outside the bargaining unit shall not be a ground for the
cancellation of the registration of the union. Said employees are
automatically deemed removed from the list of membership of
said union. (Introduced as new provision by Section 9, Republic
Act No. 9481 which lapsed into law on May 25, 2007 and became
effective on June 14, 2007).
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Article 246. Non-abridgment of right to self-organization. It shall
be unlawful for any person to restrain, coerce, discriminate against
or unduly interfere with employees and workers in their exercise
of the right to self-organization. Such right shall include the right
to form, join, or assist labor organizations for the purpose of
collective bargaining through representatives of their own
choosing and to engage in lawful concerted activities for the same
purpose or for their mutual aid and protection, subject to the
provisions of Article 264 of this Code. (As amended by Batas
Pambansa Bilang 70, May 1, 1980).
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1. CONCEPT OF THE RIGHT TO SELF ORGANIZATION
This is a key article that offers an inclusionary definition of the
right to self-organization (S.O.) by saying not what it is but what it
includes. It includes at least two rights: (1) the right to form, join
or assist labor organizations, and (2) the right to engage in lawful
concerted activities. The labor organization may be a union or
association of employees, as mentioned in Article 212(g). Its
purposes may be collective bargaining (as stated in this Article) or
dealing with the employer [as stated in Article 212(g)].
The right to form labor organization is twin to the right to engage
in concerted activities.
It is worth noting, finally, that the right to self-organization is
granted not only to employees but to workers, whether
employed or not. In fact, constitutionally speaking, the right to
form associations or societies is a right of the people, whether
workers or not.
7.4e New CBA may include employees excluded from old CBA;
Expired CBA may be Modified, not just Renewed
No personinside or outside of government, employer or nonemployer, unionist or non-unionistmay abridge these rights. If
abridged in the workplace, the abridgment is termed ULP (unfair
labor practice).
Title VI
UNFAIR LABOR PRACTICES
Chapter I
CONCEPT
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. (As amended by Batas Pambansa Bilang 70, May 1, 1980
and later further amended by Section 19, Republic Act No. 6715,
March 21, 1989).
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1. CONCEPT OF UNFAIR LABOR PRACTICE
As noted at the start of Book V a major aim of labor relations
policy is industrial democracy whose realization is most felt in free
collective bargaining or negotiation over terms and conditions of
employment. But for bargaining negotiation to be true and
meaningful, the employees, first of all, must organize themselves.
Because self-organization is a prerequisitethe lifebloodof
industrial democracy, the right to self-organize has been enshrined
in the Constitution, and any act intended to weaken or defeat the
right is regarded by law as an offense. The offense is technically
called unfair labor practice (ULP). 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.
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
LABOR RELATIONS
as well. Thus, the attack to this constitutional right is considered a
crime which therefore carries both civil and criminal liabilities.
A consideration of the entire law on the matter clearly discloses the
intention of the lawmaker to consider acts which are alleged to constitute
unfair labor practices as violations of the law or offenses, to be prosecuted
in the same manner as a criminal offense. The reason for this provision is
that the commission of an unfair labor practice is an offense against a
public right or interest and should be prosecuted in the same manner as a
public offense. The reason for the distinction between an unfair labor
practice case and a mere violation of an employer of its contractual
obligation towards an employees is, x x x that unfair labor practice cases
involve violations of a public right or policy, to be prosecuted like
criminal offenses whereas a breach of an obligation of the employer to his
employee is only a contractual breach to be redressed like an ordinary
contract or obligation.
1.1 Elements
Commission of unfair labor practice at the enterprise level needs
the presence of certain elements: first, there is employeremployee relationship between the offender and the offended;
and second, the act done is expressly defined in the Code as an
act of unfair labor practice. The first element 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 employeremployee relationship is absent in the first place.
The second element is that the act done is prohibited by the Code,
specifically in Articles 248 and 261 for an employer and Article
249 for a labor organization. Art. 212(k) emphatically defines
unfair labor practice as any unfair labor practice as expressly
defined in this Code. Art. 261 amplifies Art. 248(i) by stating that
violation of a CBA is unfair labor practice only if the violation is
gross in character.
The prohibited acts, it should be stressed, are all related to the
workers self-organizational right and to the observance of a
collective bargaining agreement (CBA). The only possible
exception is Art. 248(f) referring to dismissing or prejudicing an
employee giving testimony under this Code [regardless of the
subject of the testimony].
Because ULP is and has to be related to the right to selforganization and to the observance of the CBA, it follows that not
every unfair act is unfair labor practice.
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 unfair labor practice as legally
defined.
Stripped of legalese, unfair labor practice, when committed by the
employer, commonly connotes anti-unionism.
1.2 Prejudice to Public Interest not an Element of U.L.P.
A showing of prejudice to public interest is not a requisite for ULP
charges to prosper.
2. PROSECUTION OF U.L.P.
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 criminal offense is not possible until after
finality of judgment in the labor case, finding that the respondent
indeed committed unfair labor practice. But such judgment will
not serve as evidence of ULP in the criminal case; the criminal
charge must be proved independently from the labor case.
Moreover, while only substantial evidence is required in labor case
in the NLRC, proof beyond reasonable doubt is needed to convict
in the criminal case of ULP.
LABOR RELATIONS
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
The criminal charge, states Art. 228, falls under the concurrent
jurisdiction of the Municipal or Regional Trial Court. 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.
Article 1
1. Workers shall enjoy adequate protection against acts of anti-union
discrimination in respect of their employment.
2. Such protection shall apply more particularly in respect of acts
calculated to-(a) make the employment of a worker subject to the condition that he shall
not join a union or shall relinquish trade union membership;
(b) cause the dismissal of or otherwise prejudice a worker by reason of
union membership or because of participation in union activities outside
working hours or, with the consent of the employer, within working hours.
Article 2
LABOR RELATIONS
substitution of the judgment of the employer in the conduct of its
business. Such management prerogative may be availed of without
fear of any liability so long as it is exercised in good faith for the
advancement of the employers' interest and not for the purpose of
defeating or circumventing the rights of employees under special
laws or valid agreement and are not exercised in a malicious,
harsh, oppressive, vindictive or wanton manner or out of malice or
spite.
3.4 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.
3.5 Issuance of Rules or Policy
Every business enterprise endeavors to increase its profits. In the
process, it may adopt or devise means designed towards that goal.
Even as the law is solicitous of the welfare of the employees, it
must also protect the right of an employer to exercise what are
clearly management prerogatives. The free will of management to
conduct its own business affairs to achieve its purpose cannot be
denied.
4. DETERMINATION OF VALIDITY
10
LABOR RELATIONS
employees and reporting back to the employer. It is plainly evident
that such conduct on the employers part, however subtly it may be
accomplished, constitutes interference with the employees
exercise of their rights. Inasmuch as the pressure results more
from the employees apprehension than from the employers
purpose in spying and the use of its result, it has been held to be no
answer to a charge of unfair labor practice that the fruits of
espionage were not used.
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 the meeting.
5.6 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 the union.
It is well-settled rule that while a representation election is
pending, the conferral of employee benefits for the purpose of
inducing the employees to vote against a union is unlawful.
11
LABOR RELATIONS
It is irrational to suppose that a purchaser of a manufacturing
enterprise is not aware of the labor-management situation in the
firm he bought.
5.9b Assumption of Obligations by New Company
5.10 Successor Employer; Piercing the Corporate Veil
Closure is likewise not legal and the employees cannot be
separated if, in fact, there is no closure because the closed
department or company reappeared although under a new name. If
the new company is, for instance, engaging in the same business
as the closed company or department, or is owned by the same
people, and the closure is calculated to defeat the workers
organizational right, then, the closure may be declared a
subterfuge and the doctrine of successor employer will be
applied, that is, the new company will be treated as a continuation
or successor of the one that closed. If such be the case, the
separated employees will have to be employed in the new firm
because in the first place they should not have been separated at
all.
The successor employer ruling is an enforcement of the legal
recourse called piercing the veil of corporate entity.
Under the doctrine of piercing the veil of corporate entity, when valid
grounds therefore exist, the legal fiction that a corporation is an entity
with a juridical personality separate and distinct from its members or
stockholders may be disregarded. In such cases, the corporation will be
considered as a mere association of persons. The members or stockholders
of the corporation will be considered as the corporation, that is, liability
will attach directly to the officers and stockholders. The doctrine applies
when the corporate fiction is used to defeat public convenience, justify
wrong, protect fraud, or defend crime, or when it is made as a shield to
confuse the legitimate issues or where a corporation is the mere alter ego
or business conduit of a person, or where the corporation is so organized
and controlled and its affairs are so conducted as to make it merely an
instrumentality, agency, conduit or adjunct of another corporation.
12
LABOR RELATIONS
An employers contracting out of work is itself an unfair labor
practice where motivated by a desire to prevent his employees
from organizing and selecting a collective bargaining
representative, rid himself of union men, or escape his statutory
duty to bargain collectively with his employees bargaining
representative.
As we have previously held, the company can determine in its best
business judgment whether it should contract out the performance of some
of its work for as long as the employer is motivated by good faith, and the
contracting out must not have been resorted to to circumvent the law or
must not have been the result of malicious or arbitrary action.
13
LABOR RELATIONS
Considered in the light of the anti-union attitude exhibited by respondent
company in transferring union president Leones from the main office in
Manila to Cebu when the union was still being organized, and which act
was found by the NLRC as constituting unfair labor practice and unionbusting in connection with the application for clearance to terminate
Leones filed by respondent company, 34 the uneven application of its
marketing plan by respondent company is patently an act of
discrimination, considered as an unfair labor practice under Art. 248(e) of
the Labor Code.
14
LABOR RELATIONS
clause. Despite variations and limitations, a union security clause
essentially requires membership in the union so that an employee
may retain his job and the unions existence is assured.
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. It is indeed compulsory union
membership whose objective is to assure continued existence of
the union. In a sense, there is discrimination when certain
employees are obliged to join a particular union. But it is
discrimination favouring unionism; it is a valid kind of
discrimination.
The employer is not guilty of unfair labor practice if it merely
complies in good faith with the request of the certified union for
the dismissal of employees expelled from the union pursuant to the
union security clause in the collective bargaining agreement.
9.10a Kinds of Union Security Agreements
Closed-shop: Only union members can be hired by the company
and they must remain as union members to retain employment in
the company.
Constitution. But this Court has laid down the ruling that a closed shop is
a valid form of union security, and such provision in a collective
bargaining agreement is not a restriction of the right of freedom of
association guaranteed by the Constitution.
It is the policy of the State to promote unionism to enable the workers to
negotiate with management on the same level and with more
persuasiveness than if they were to individually and independently bargain
for the improvement of their respective conditions. 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-a-vis the employer.
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 welds group solidarity. It is a very effective form of union
security agreement.
15
LABOR RELATIONS
9.10i Closed-Shop, To Whom Not Applicable
All employees in the bargaining unit covered by a closed-shop
agreement are subject to its terms, except the following: (1) any
employee who at the time the closed-shop agreement takes effect
is a bona fide member of religious organization which prohibits its
members from joining labor unions on religious grounds; (2)
employees already in the service and already members of a labor
union or unions other than the majority union at the time the
closed-shop agreement took effect; (3) Confidential employees
who are excluded from the rank-and-file bargaining unit; and (4)
employees excluded from the closed-shop by express terms of the
agreement.
It is well settled in this jurisdiction that, in the absence of a manifest intent
to the contrary, "closed shop" provisions in a collective bargaining
agreement "apply only to persons to be hired or to employees who are not
yet members of any labor organization" and that said provisions of the
agreement are not applicable to those already in the service at the time of
its execution. To hold that the employees in a company who are members
of a minority union may be compelled to disaffiliate from their union and
join the majority or contracting union, would render nugatory the right of
all employees to self organization and to form, join or assist labor
organizations of their own choosing, a right guaranteed by the Industrial
Peace Act (sec. 3, Rep. Act No. 875) as well as by the Constitution (Art.
III, sec. 1[6]).
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LABOR RELATIONS
against an employee for having given or being about to give
testimony under this Code.
Employers reprisal against a testifying employee is ULP because,
furthermore, it violates the right to engage in concerted activity, a
right included in the right to self-organize (Art. 246) and reiterated
in Article 263(b). Concerted activity does not always require a
number of people acting in unison. An employee acting alone in
pursuing a group interest may be said to be doing a concerted
activity which the employer may not curtail.
10.1 Refusal to Testify
Clearly, the efforts to justify petitioner's dismissal on top of the private
respondent's scheme of inducing his employees to sign an affidavit
absolving him from possible violations of the Labor Code taints with
evident bad faith and deliberate malice petitioner's summary termination
from employment. The pivotal question in any case where unfair labor
practice on the part of the employer is alleged is whether or not the
employer has exerted pressure, in the form of restraint, interference or
coercion, against his employee's right to institute concerted action for
better terms and conditions of employment. Without doubt, the act of
compelling employees to sign an instrument indicating that the employer
observed labor standards provisions of law when he might have not,
together with the act of terminating or coercing those who refuse to
cooperate with the employer's scheme constitutes unfair labor practice.
The first act clearly preempts the right of the hotel's workers to seek better
terms and conditions of employment through concerted action.
17
LABOR RELATIONS
(d) To cause or attempt to cause an employer to pay or deliver or
agree to pay or deliver any money or other things of value, in the
nature of an exaction, for services which are not performed or not
to be performed, including the demand for fee for union
negotiations;
(e) To ask for or accept negotiation or attorneys fees from
employers as part of the settlement of any issue in collective
bargaining or any other dispute; or
(f) To violate a collective bargaining agreement.
The provisions of the preceding paragraph notwithstanding, only
the officers, members of governing boards, representatives or
agents or members of labor associations or organizations who have
actually participated in, authorized or ratified unfair labor practices
shall be held criminally liable. (As amended by Batas Pambansa
Bilang 130, August 21, 1981).
________
1.
RESTRAINT
OR
COERCION
BY
LABOR
ORGANIZATION; INTERFERENCE BY UNION IS NOT
ULP
A labor organization commits ULP when it restrains or coerces
employees in their right to self-organization. This provision of Art.
249(a) parallels with Art. 248(a). But interference is left out.
This deliberate omission is the equivalent of license of labor
organization to engage in those practices which, at the hands of an
employer, would constitute actionable unfair labor practices by
way of interference. In other words, a labor organization may
interfere in the employees right to self-organization as long as the
interference does not amount to restraint or coercion.
Interference by a labor organization is not ULP because interfering
in the exercise of the right to organize is itself a function of selforganizing.
1.1 Coercing Participation in Strike
Chapter III
UNFAIR LABOR PRACTICES OF LABOR
ORGANIZATIONS
Article 249. Unfair labor practices of labor organizations. - It shall
be unfair labor practice for a labor organization, its officers, agents
or representatives:
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LABOR RELATIONS
The broad rule is that the union has the right to determine its
membership and to prescribe the conditions for the acquisition and
retention thereof. Consequently, admission to membership may not
be compelled. This rule, however, is qualified in the case of labor
unions holding a monopoly in the supply of labor, either in a given
locality, or as regards a particular employer by reason of a closedshop or similar agreements. In such case, qualified applicants may
not be arbitrarily excluded from membership and their admission
may not be barred by unreasonable rules.
It is well settled that labor unions are not entitled to arbitrarily exclude
qualified applicants for membership, and a closed-shop provision would
not justify the employer in discharging, or a union in insisting upon the
discharge of, an employee whom the union thus refuses to admit to
membership, without any reasonable ground therefor.4 Needless to say, if
said unions may be compelled to admit new members, who have the
requisite qualifications, with more reason may the law and the courts
exercise the coercive power when the employee involved is a long
standing union member, who, owing to provocations of union officers,
was impelled to tender his resignation, which he forthwith withdrew or
revoked. Surely, he may, at least, invoke the rights of those who seek
admission for the first time, and cannot arbitrarily he denied readmission.
The Court stresses, however, that union security clauses are also governed
by law and by principles of justice, fair play, and legality. Union security
clauses cannot be used by union officials against an employer, much less
their own members, except with a high sense of responsibility, fairness,
prudence, and judiciousness.
A union member may not be expelled from her union, and consequently
from her job, for personal or impetuous reasons or for causes foreign to
the closed-shop agreement and in a manner characterized by arbitrariness
and whimsicality.
AND
MAKE-WORK
19
LABOR RELATIONS
problems and objectives, both where they differ and where they
are identical.
Moreoverand this is very importantit provides an orderly
procedure by which each side can seek to present to the other the
best possible case for the satisfaction of its particular demands.
It elicits the consent of those who will have to live under the terms
of any agreement derived from the bargaining process. Stability is
an important element in employment, and consent assures
stability because parties who have accepted an agreement will live
by its terms.
2. EMERGENCE OF COLLECTIVE BARGAINING
First in Great Britain, but not much later in other countries,
working men sought to protect themselves against the harsh effects
of new machines, new methods of production, new divisions of
labor and new intensities of competition by forming organizations
capable of representing their interests as a group vis--vis
employees and the State.
2.1 Originator
The credit for coining the expression belongs to Beatrice Webb,
who first used it in 1891 in her study on The Cooperative
Movement in Great Britain.
In non-English speaking countries, particularly on the European
continent, where the process of collective bargaining has an
equally long history, the emphasis was placed on the term
collective agreement because during the early period the
workers aimed not so much at establishing the procedure of
bargaining itself as at having such agreements recognized and
enforced as legally binding contracts.
2.2 Adoption in the Philippines
In the Philippines the idea of collective bargaining first gained
formal and official recognition through Commonwealth Act No.
213, approved by President Manuel L. Quezon on November 21,
1936.
1.2 Rationale
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LABOR RELATIONS
employees before the expiration of the one-year period. The rule is
the same whether the union lost its majority as a result of the
employers unfair labor practices or through no fault of the
employer.
A union which has been certified by the NLRB as a bargaining
representative for a particular unit enjoys an irrefutable
presumption of a majority status for one year, absent special
circumstances. Following the expiration of the one-year
certification period, there continues to be a presumption in favor of
a union majority, though the presumption is rebuttable. Employee
turnover does not constitute unusual circumstances shortening
the period.
6. SINGLE ENTERPRISE BARGAINING PROCEDURE
BROADLY DESCRIBED
The law gives primacy to free collective bargaining (Art. 211) and
allows the parties to devise their bargaining rules (Art. 251). This
is the basic reason the bargaining procedure is governed primarily
by agreement of the parties.
In the presence of validly agreed procedure, the Labor Code
procedure applies suppletorily only.
D.O. No. 40-03 supplements the codal provisions:
7. MULTI-EMPLOYER BARGAINING
21
LABOR RELATIONS
Competitive pressures are the dominant forces that encourage both
unions and employers to enter into multi-employer or industrywide bargaining relationships. Small employers in highly
competitive and labor-intensive fields may find it easier to operate
with uniformity of labor cost.
The multi-employer unit is particularly advantageous to both sides
in industries composed of many small, financially weak
employers.
Multi-employer bargaining provides both management and unions
with significant cost savings in negotiation of labor agreements. It
is cheaper to negotiate one master multi-employer agreement than
a number of single-employer agreements.
There are, however, other considerations than costs, such as intraorganizational issues, that the parties take into account before
opting for multi-employer units. Multi-employer bargaining may
not only overlook the needs of various employee groups, but also
ignore particular requirements of individual employers.
What may be readily acceptable to one employer may be
considered as financially disastrous by another.
To arrive at multi-employer agreements is much more difficult
than to arrive at single-employer contracts. The expanded size of
the unit composed of many heterogeneous groups leads to
intensive intra-organizational bargaining both on the unions and
on the employers side. At times, these intra-organizational
pressures may lead to lengthy delays in negotiations and even to
breakdown of bargaining.
7.2 Multi-employer Bargaining Procedure (D.O. No. 40-03)
Section 5. When multi-employer bargaining available. - A legitimate labor
union(s) and employers may agree in writing to come together for the
purpose of collective bargaining, provided:
(a) only legitimate labor unions who are incumbent exclusive bargaining
agents may participate and negotiate in multi-employer bargaining;
(b) only employers with counterpart legitimate labor unions who are
incumbent bargaining agents may participate and negotiate in multiemployer bargaining; and
(c) only those legitimate labor unions who pertain to employer units who
consent to multi-employer bargaining may participate in multi-employer
bargaining.
Section 6. Procedure in multi-employer bargaining. - Multi-employer
bargaining may be initiated by the labor unions or by the employers.
(a) Legitimate labor unions who desire to negotiate with their employers
collectively shall execute a written agreement among themselves, which
shall contain the following:
1) the names of the labor unions who desire to avail of multi-employer
bargaining;
2) each labor union in the employer unit;
3) the fact that each of the labor unions are the incumbent exclusive
bargaining agents for their respective employer units;
4) the duration of the collective bargaining agreements, if any, entered into
by each labor union with their respective employers.
7.4 Optional
Under D.O. No. 40-03 multi-employer bargaining is purely
optional for employers and unions.
Unlike other bargaining units, the multi-employer unit is based
primarily on the consent of the firms involved.
________
Article 252. Meaning of duty to bargain collectively. The duty to
bargain collectively means the performance of a mutual obligation
to meet and convene promptly and expeditiously in good faith for
the purpose of negotiating an agreement with respect to wages,
22
LABOR RELATIONS
hours of work and all other terms and conditions of employment
including proposals for adjusting any grievances or questions
arising under such agreement and executing a contract
incorporating such agreements if requested by either party but
such duty does not compel any party to agree to a proposal or to
make any concession.
________
Article 253. Duty to bargain collectively when there exists a
collective bargaining agreement. When there is a collective
bargaining agreement, the duty to bargain collectively shall also
mean that neither party shall terminate nor modify such agreement
during its lifetime. However, either party can serve a written notice
to terminate or modify the agreement at least sixty (60) days prior
to its expiration date. It shall be the duty of both parties to keep the
status quo and to continue in full force and effect the terms and
conditions of the existing agreement during the 60-day period
and/or until a new agreement is reached by the parties.
________
1. DUTY TO BARGAIN DEFINED
The law contemplates and defines two situations when the duty to
bargain exists: Situation one, when there is yet no collective
bargaining agreement (Art. 252), and Situation two, where a CBA
exists (Art. 253).
For Situation One, the duty to bargain means in essence the mutual
obligation of the employer and the employees majority union to
meet and convene.
The purposes of the meeting and convening are:
(1) to negotiate an agreement on the subjects of:
(a) wages, (b) hours of work, and (c) all other terms and conditions
of employment including proposals for adjusting grievances or
questions arising under such agreement; and
23
LABOR RELATIONS
(6) the union makes unlawful bargaining demands.
2.7 Alleged Interference in the Selection of the Unions
Negotiation Panel
In order to show that the employer committed ULP under the Labor Code,
substantial evidence is required to support the claim. Substantial evidence
has been defined as such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.
24
Since the passage of the Taft-Hartley Act, the National Labor Relations
Board has held that industrial pensions, group insurance, and merit
increases all are matters about which employers must bargain collectively.
LABOR RELATIONS
dos and donts for employees of the enterprise are work rules,
forming part of terms and conditions of employment, that are
proper subjects of collective bargaining. Hardly may the employer
contend that they are non-negotiable matters.
3.3 Management Prerogatives Clause
(4) Bonuses;
(6) Seniority;
(7) Transfer;
(8) Lay-offs;
(9) Employee workloads;
(10) Work rules and regulations;
(11) Rent of company houses;
(12) Union security arrangements.
3.1a Wage Agreement; Solomonic Approach
We take note of the "middle ground" approach employed by the Secretary
in this case which. we do not necessarily find to be the best method of
resolving a wage dispute. Merely finding the midway point between the
demands of the company and the union, and "splitting the difference" is a
simplistic solution that fails to recognize that the parties may already be at
the limits of the wage levels they can afford. It may lead to the danger too
that neither of the parties will engage in principled bargaining; the
company may keep its position artificially low while the union presents an
artificially high position, on the fear that a "Solomonic" solution cannot be
avoided. Thus, rather than encourage agreement, a "middle ground
approach" instead promotes a "play safe" attitude that leads to more
deadlocks than to successfully negotiated CBAs.
25
LABOR RELATIONS
In short, if the reason behind a signing bonus is absent, no signing
bonus need be given.
3.8 No Duty to Agree Even on Mandatory Subjects
The Act does not compel agreements between employers and
employees, and neither party is legally obligated to yield even on a
mandatory bargaining subject. Where the subject of the dispute is a
mandatory bargaining subject, either party may bargain to an
impasse as long as he bargains in good faith. The duty to bargain
does not obligate a party to make concessions or yield a position
fairly held. Hence, an employers adamant insistence on a
bargaining position is not necessarily a refusal to bargain in good
faith.
Even if the negotiating party thumbs down the other partys
proposals, there is no violation of the duty to bargainhence, no
ULPas long as the negative reply can be explained in good faith.
3.9 Non-mandatory Subjects
An employer cannot insist, to the point of creating a bargaining
impasse, on the inclusion of a provision outside the scope of the
statutory bargaining subjects, even if he acts in good faith. On the
other hand, it is lawful to insist on the inclusion of a provision in a
collective bargaining agreement if the provision is within the scope
of a statutory subject of bargaining.
An employer bargains to an impasse over a non-mandatory
bargaining subject when he refuses to reach any agreement with
the union unless the union capitulates to him on that subject.
However, it has been held that a bargaining impasse may be
reached over a non-mandatory bargaining subject although that
subject is not the sole cause for the parties failure to agree. When
a subject under discussion is not mandatory, it may be discussed if
both parties agree, but a strike or lockout may not be used to
compel a negotiation or agreement.
While most matters that might be discussed or proposed in
collective bargaining are likely to bear some relation, even if
tenuous, to wage, hours, and other terms and conditions of
employment, not all proposals that somehow respond to a
problem that is customarily bargained about may themselves be
insisted upon to impasse. By once bargaining and agreeing on a
permissive subject of bargaining, the parties do not make the
subject a mandatory topic of future bargaining.
3.10 Bargaining to the Point of Impasse: Not necessarily Bad Faith
The adamant insistence on a bargaining position to the point where
the negotiations reach an impasse does not establish bad faith.
Neither can bad faith be inferred from a partys insistence on the
inclusion of a particular substantive provision unless it concerns
trivial matters or is obviously intolerable.
The question as to what are mandatory and what are merely permissive
subjects of collective bargaining is of significance on the right of a party
to insist on his position to the point of stalemate. A party may refuse to
enter into a collective bargaining contract unless it includes a desired
provision as to a matter which is a mandatory subject of collective
bargaining; but a refusal to contract unless the agreement covers a matter
which is not a mandatory subject is in substance a refusal to bargain about
matters which are mandatory subjects of collective bargaining, and it is no
answer to the charge of refusal to bargain in good faith that the insistence
on the disputed clause was not the sole cause of the failure to agree or that
agreement was not reached with respect to other disputed clauses.
Stated in another way, the ruling means that bargaining to the point
of deadlock may or may not amount to bargaining in bad faith
depending on whether the insistence refers to a mandatory or a
non-mandatory subject of bargaining.
The reason is that the duty to bargain requires meeting and
convening on terms and conditions of employment but does not
require assent to the other partys proposals.
Over a non-mandatory subject, on the other hand, a party may not
insist on bargaining to the point of impasse, otherwise his
insistence can be construed as bargaining in bad faith. It may be
construed as evasion of the duty to bargain; such evasion is ULP.
The above rulings do not mean that non-mandatory subjects
cannot be proposed or that the proponent cannot demand serious
discussion of such proposal. What the rulings forbid is the posture
of making settlement on a non-mandatory subject a precondition to
the discussion or settlement of a mandatory subject. If a nonmandatory subject is proposed and agreed upon, the agreeing
party, by itself, is binding.
3.11 When Is There Deadlock or Impasse?
A bargaining impasse over an issue exists where good faith
bargaining on the part of the parties has failed to resolve the issue
and there are no definite plans for further efforts to break the
deadlock.
Impasse, within the meaning of the federal labor laws,
presupposes reasonable effort at good faith bargaining which,
despite noble intentions, does not conclude in an agreement
between the parties. In the NLRBs view, whether a bargaining
impasse exists is a matter of judgment dependent on such factors
as the bargaining history, the parties good faith in negotiations, the
length of the negotiations, the importance of the issue or issues as
to which there is disagreement, and the contemporaneous
understanding of the parties as to the state of negotiations.
3.11a Duty to Bargain When There Is Deadlock or Impasse
Deadlock does not mean the end of bargaining. It signals rather the
need to continue the bargaining with the assistance of a third party
as conciliator or arbitrator whose first aim is to get the parties back
to the negotiating table and help them craft a win-win solution.
3.11b Strike or Lockout in Case of Deadlock
Bargaining may proceed smoothlyand this is the wish of most
negotiation panelsbut it may also be marred by insinuations,
misunderstandings, and apparently irreconcilable bargaining
positions. Deadlock develops. In fact, deadlock may occur anytime
for various reasons such as unacceptability of a proposal or
counter proposal, grandstanding of a negotiator, autocratic or
arrogant stance, or imprecise wording of a stipulation.
The law (Art. 263) recognizes bargaining deadlock as a valid
reason to declare a strike or lockout. Strike/ lockout presents a
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LABOR RELATIONS
Bargaining in bad faith is considered ULP under Art, 248(g). But if
one will be charged with bargaining in bad faith, the charge should
be raised while the bargaining is in progress. When the bargaining
is finished and the CBA has been executed voluntarily by the
parties, a charge of bargaining in bad faith is too late and
untenable.
With the execution of the CBA, bad faith bargaining can no longer be
imputed upon any of the parties thereto. All provisions in the CBA are
supposed to have been jointly and voluntarily incorporated therein by the
parties. This is not a case where private respondent exhibited an
indifferent attitude towards collective bargaining because the negotiations
were not the unilateral activity of petitioner union. The CBA is proof
enough that private respondent exerted "reasonable effort at good faith
bargaining."
The unions proposal, not being part of the signed contract, cannot serve
as basis of holding the management guilty of bad faith in bargaining or in
implementing their contract as signed.
4.3 Instances of Bad Faith: Delay of, or Imposing Time Limit on,
Negotiations
An unwarranted delay in negotiations may be evidence of bad faith
on the part of the employer. However, an employer has been held
not guilty of bad faith for failing to complete a collective
bargaining contract during a 3-year period, where many
conferences had been held during the period, even though the
employer had insisted on a no-strike clause and had raised wages
during negotiations for the purpose of meeting competition.
The National Labor Relations Board of the United States reported
that lack of good faith is indicated where the employer engages in
unfair labor practices while bargaining with the union; where it
engages in dilatory tactics during negotiations; or where it
institutes a wage cut by unilateral action and without consulting
the majority representative.
Nonetheless, the prior adjudication of bad faith on an earlier
occasion is not itself substantial evidence of present bad faith.
As the Court held in the case of Kiok Loy v. NLRC, 141 SCRA 179, 186
(1986), the company's refusal to make counter-proposal to the union's
proposed CBA is an indication of its bad faith.
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LABOR RELATIONS
of a legitimate labor organization which is certified as the
exclusive bargaining agent, is to ask for and be furnished with the
employers annual audited financial statements, including the
balance sheet and the profit and loss statement. Such information
is crucial in bargaining.
At this stage, the negotiations are over; the document has been
signed, sealed, and delivered. Implementation should follow. But
at this stage the collective bargaining process is not yet over, and
the duty to bargain is still operative because such duty further
requires faithful adherence to the contractual provisions. Violation
of the contract amounts to ULP, if the violation is gross.
6. RATIFICATION
REQUIREMENTS
BY
THE
CBU;
MANDATORY
28
LABOR RELATIONS
In any of those situations the CBA still needs to be posted in two
conspicuous places in the workplace, but the posting is for the
information of, and not ratification by, the employees affected.
Moreover, the CBA has to be registered with the DOLE regional
office.
To require ratification of the CBA in case of arbitral awards will be
inconsistent with the nature of arbitration as a dispute-settlement
device.
The preceding comment, however, does not mean that the arbitral
award is beyond question. Certiorari on proper grounds is
available.
6.3 Ratified but Unsigned
Lack of the purely ministerial act of signing the formal contract
did not obviate the fact that there was a binding contract.
6.4 Unratified but Implemented
The parties to a collective agreement are required to furnish copies to the
appropriate Regional Office with accompanying proof of ratification by
the majority of all the workers in the bargaining unit. This was not done in
the case at bar. But we do not declare the CBA invalid or void considering
that the employees have enjoyed benefits from it. They cannot receive
benefits under provisions favorable to them and later insist that the CBA is
void simply because other provisions turn out not to the liking of certain
employees. It is iniquitous to receive benefits from a CBA and later on
disclaim its validity.
7. EXECUTION OF CONTRACT
A party to a collective bargaining may be required to sign a
contract where the agreement has been reached by the parties and
only one partys refusal to execute a contract is preventing its
being carried into effect. Such refusal is an unfair labor practice
7.1 Unwritten or Unsigned Agreement
American courts have held that a collective bargaining agreement
is valid though not reduced to writing or signed, if neither party
requests a written instrument.
7.2 Effect of Signing on Other Disputes
8. REGISTRATION OF C.B.A.
________
Article 253-A. Terms of a collective bargaining agreement. Any
Collective Bargaining Agreement that the parties may enter into
shall, insofar as the representation aspect is concerned, be for a
term of five (5) years. No petition questioning the majority status
of the incumbent bargaining agent shall be entertained and no
certification election shall be conducted by the Department of
Labor and Employment outside of the sixty-day period
immediately before the date of expiry of such five-year term of the
Collective Bargaining Agreement. All other provisions of the
Collective Bargaining Agreement shall be renegotiated not later
than three (3) years after its execution.
1. DURATION OF A C.B.A.
RA No. 9715 (March 21, 2989) has introduced through Art. 253-A
a significant change in setting the durations or terms of a CBA at
29
LABOR RELATIONS
five years for the representation aspect and not more than three
years for all other provisions. The representation aspect refers
to the identity and majority status of the union that negotiated the
CBA as the exclusive representative of the bargaining unit. All
other provisions: simply refers to the rest of the CBA, economic as
well as non-economic other than representational.
The conference agreed to make the terms and conditions or
economic provision of the CBA good only for three years so as
to protect the economic gains of the workers.
Obviously, the framers of the law wanted to maintain industrial peace and
stability by having both management and labor work harmoniously
together without any disturbance. Thus, no outside union can enter the
establishment within five (5) years and challenge the status of the
incumbent union as the exclusive bargaining agent. Likewise, the terms
and conditions of employment (economic and non-economic) cannot be
questioned by the employers or employees during the period of effectivity
of the CBA. The CBA is a contract between the parties and the parties
must respect the terms and conditions of the agreement. Notably, the
framers of the law did not give a fixed term as to the effectivity of the
terms and conditions of employment. It can be gleaned from their
discussions that it was left to the parties to fix the period.
The issue as to the term of the non-representation provisions of the CBA
need not belabored especially when we take note of the Memorandum of
the Secretary of Labor dated February 24, 1994. In said memorandum, the
Secretary of Labor had occasion to clarify the term of the renegotiated
terms of the CBA vis-a-vis the term of the bargaining agent, to wit:
As a matter of policy the parties are encourages (sic) to enter into a
renegotiated CBA with a term which would coincide (sic) with the
aforesaid five (5) year term of the bargaining representative.
In the event however, that the parties, by mutual agreement, enter into a
renegotiated contract with a term of three (3) years or one which does not
coincide with the said 5-year term, and said agreement is ratified by
majority of the members in the bargaining unit, the subject contract is
valid and legal and therefore, binds the contracting parties. The same will
however not adversely affect the right of another union to challenge the
majority status of the incumbent bargaining agent within sixty (60) days
before the lapse of the original five (5) year term of the CBA.
30
LABOR RELATIONS
Moreover, any injunctive order in non-national interest disputes
can be directed only against the illegal acts being committed in
connection with the labor dispute; it cannot be directed against the
dispute itself.
There is no power the exercise of which is more delicate which requires
grater caution, deliberation, and sound discretion, or (which is) more
dangerous in a doubtful case than the issuing of an injunction; it is the
strong arm of equity that never ought to be extended unless to cases of
great injury, where courts of law cannot afford an adequate or
commensurate remedy in damages. The right must be clear, the injury
impending or threatened, so as to be averted only by protection preventive
process of injunction.
________
Article 255. Exclusive bargaining representation and workers
participation in policy and decision-making. The labor
organization designated or selected by the majority of the
employees in an appropriate collective bargaining unit shall be the
exclusive representative of the employees in such unit for the
purpose of collective bargaining. However, an individual employee
or group of employees shall have the right at any time to present
grievances to their employer.
Any provision of law to the contrary notwithstanding, workers
shall have the right, subject to such rules and regulations as the
Secretary of Labor and Employment may promulgate, to
participate in policy and decision-making processes of the
establishment where they are employed insofar as said processes
will directly affect their rights, benefits and welfare. For this
purpose, workers and employers may form labor-management
councils: Provided, That the representatives of the workers in such
labor-management councils shall be elected by at least the majority
of all employees in said establishment. (As amended by Section
22, Republic Act No. 6715, March 21, 1989).
________
1.
WORKERS
PARTICIPATORY
CONSTITUTIONAL MEANING
RIGHT:
ITS
2. WORKERS PARTICIPATION
OBJECTIVE; THE LMC
AS
THE
REAL
31
LABOR RELATIONS
bargaining representative must be given the opportunity to be
present at the meeting between the employer and employee.
4. COLLECTIVE BARGAINING UNIT (CBU) DEFINED
At the enterprise level there are three democratic devices,
statutorily embedded, to advance the cause of industrial peace,
namely: airing of grievance even by an individual employee
directly to the employer anytime; participation in policy and
decision-making by employees, whether unionized or not; and
collective bargaining with the employer by unionized employees.
3. INDIVIDUAL GRIEVANCE
Within one unit there may be one or more unions. The bargaining
unit therefore is not the same as, and usually a bigger group than, a
union. But only one union should represent the whole CBU in
bargaining with the employer. The chosen union is called the
bargaining agent, its principal being the CBU members
themselves.
The bargaining union has to be the majority union, the one where
majority of the CBU members belong.
Representative union, bargaining union, majority union,
bargaining agent, and bargaining representative are one and
the same. It refers to the union that represents the CBU in
bargaining or dealing with the employer.
5. APPROPRIATENESS
FACTORS CONSIDERED
OF
BARGAINING
UNIT;
32
experience indicates that the most efficacious bargaining unit is one which
is comprised of constituents enjoying a community of interest. This
community of interest is reflected in groups having substantial similarity
of work and duties or similarity of compensation and working conditions.
LABOR RELATIONS
such employees exclusion from a bargaining unit. Moreover, the
eligibility of probationary employees does not turn on the
proportion of such employees who, willingly or not, fail to
continue to work for the employer throughout the trial period.
6. REFERENDUM WHERE INTERESTS ARE DISSIMILAR
The decision then of the Executive Labor Arbiter in merely
directing the holding of a referendum to determine the will of the
service engineers, sales representatives as to their inclusion or
exclusion in the bargaining unit is the most appropriate procedure
that conforms with their right to form, assist or join a labor union
or organization.
6.1 Desire of the Employees; The Globe Doctrine
The desires of the employees are relevant to the determination of
the appropriate bargaining unit. The relevancy of the wishes of
employees concerning their inclusion or exclusion from a
proposed bargaining unit is inherent in the basic right to self
organization. While the desires of the employees with respect to
their inclusion in a bargaining unit is not controlling, it is a factor
which would be taken into consideration in reaching a decision.
7. SINGLE OR EMPLOYER UNIT IS FAVORED
It has been the policy of the Bureau of Labor Relations to
encourage the formation of an employer unit unless circumstances
otherwise require. In other words, one employer enterprise
constitutes only one bargaining unit. The more solid the employees
are, the stronger is their bargaining capacity.
The proliferation of unions in an employer unit is discouraged as a
matter of policy unless there are compelling reasons which would
deny a certain class of employees the right to self-organization for
purposes of collective bargaining.
Single plant units are presumed to be appropriate for purposes of
collective bargaining.
Instead of forming another bargaining unit, the law requires them to be
members of the existing one. The ends of unionism are better served if all
the rank-and-file employees with substantially the same interests and who
invoke their right to self-organization are part of a single unit so that they
can deal with their employer with just one and yet potent voice. The
employees' bargaining power with management is strengthened thereby.
33
9. SUMMATION OF SIGNIFICANCE
It is helpful to reiterate that the bargaining unit is not the same as
the union; in fact, there may be several unions (majority and
minority) in one bargaining unit. Determining the scope or
membership of the bargaining unit is significant and far-reaching
because it leads to the determination also of: (1) the employees
who can vote in the certification election; (2) the employees to be
represented in bargaining with the employer; and (3) the
employees who will be covered by the resulting CBA.
Distinguishing the CBU from the union is important because
1. in a CE the voters are the CBU, whether union or non-union
members;
2. in CBA ratification the voters are the unit, not just the union
members;
3. in strike voting, the voters are the members of the union, not all
of the unit.
________
Article 256. Representation Issue in Organized Establishments. In organized establishments, when a verified petition questioning
the majority status of the incumbent bargaining agent is filed by
any legitimate labor organization including a national union or
federation which has already issued a charter certificate to its local
LABOR RELATIONS
chapter participating in the certification election or a local chapter
which has been issued a charter certificate by the national union or
federation before the Department of Labor and Employment
within the sixty (60)-day period before the expiration of the
collective bargaining agreement, the Med-Arbiter shall
automatically order an election by secret ballot when the verified
petition is supported by the written consent of at least twenty-five
percent (25%) of all the employees in the bargaining unit to
ascertain the will of the employees in the appropriate bargaining
unit. To have a valid election, at least a majority of all eligible
voters in the unit must have cast their votes. The labor union
receiving the majority of the valid votes cast shall be certified as
the exclusive bargaining agent of all the workers in the unit. When
an election which provides for three or more choices results in no
choice receiving a majority of the valid votes cast, a run-off
election shall be conducted between the labor unions receiving the
two highest number of votes: Provided, That the total number of
votes for all contending unions is at least fifty percent (50%) of the
number of votes cast. In cases where the petition was filed by a
national union or federation, it shall not be required to disclose the
names of the local chapters officers and members.
At the expiration of the freedom period, the employer shall
continue to recognize the majority status of the incumbent
bargaining agent where no petition for certification election is
filed. (As amended by Section 23, Republic Act No. 6715, March
21, 1989 and Section 10, Republic Act No. 9481 which lapsed into
law on May 25, 2007 and became effective on June 14, 2007).
________
Article 257. Petitions in Unorganized Establishments. - In any
establishment where there is no certified bargaining agent, a
certification election shall automatically be conducted by the MedArbiter upon the filing of a petition by any legitimate labor
organization, including a national union or federation which has
already issued a charter certificate to its local/chapter participating
in the certification election or a local/chapter which has been
issued a charter certificate by the national union or federation. In
cases where the petition was filed by a national union or
federation, it shall not be required to disclose the names of the
local chapters officers and members. (As amended by Section 24,
Republic Act No. 6715, March 21, 1989 and Section 11, Republic
Act No. 9481 which lapsed into law on May 25, 2007 and became
effective on June 14, 2007).
________
Article 258. When an employer may file petition. When
requested to bargain collectively, an employer may petition the
Bureau for an election. If there is no existing certified collective
bargaining agreement in the unit, the Bureau shall, after hearing,
order a certification election.
All certification cases shall be decided within twenty (20) working
days.
The Bureau shall conduct a certification election within twenty
(20) days in accordance with the rules and regulations prescribed
by the Secretary of Labor.
________
Article 258-A. Employer as Bystander. - In all cases, whether the
petition for certification election is filed by an employer or a
34
UNION:
LABOR RELATIONS
In an organized establishment, on the other hand, voluntary
recognition is not possible. A petition to hold a CE has to be filed
within the freedom period which means the last sixty (60) days
of the fifth year of the expiring CBA; in other words, the contest
between unions comes at intervals of roughly four years and ten
months. The petition may be filed by any LLO, but the petition
must have the written support of at least twenty-five percent (25%)
of the employees in the bargaining unit. The 25% initial support
indicates that the petitioner has a fair chance of winning and that
the petition is not just a nuisance.
Conceivably but rarely an employer may also file a petition for a
CE.
The election is conducted under the supervision and control of
DOLE officials. It ends up with a formal and official statement of
results, certifying which union won, if any. Hence, the election is
appropriately called certification election.
Where one casting of votes is not decisive enough to elect a union,
the election officials may require a run-off election if certain other
conditions exist, as explained below.
But a certification election, a run-off election, or a consent election
is needed only when two or more unions are vying for the office
of exclusive bargaining representative (EBR). Where there is but
one union in the bargaining unit and there is ample proof that that
union carries the majority of the employees, the law allows the
employer to voluntarily recognize such union. Voluntary
recognition does away with the more tedious electoral contest
between unions.
There are, therefore, three methods to determine the bargaining
union: (1) voluntary recognition; (2) certification election with or
without run-off; and (3) consent election.
2. FIRST METHOD: VOLUNTARY RECOGNITION (V.R.)
The employers voluntary recognition of the employees union
significantly facilitates the bargaining process. The employees,
especially the union leaders and organizers, rejoice when they are
able to convince the employer to voluntarily recognize and
subsequently bargain with their union. But VR requires three
concurrent conditions.
First, voluntary recognition is possible only in an unorganized
establishment. In an organized setting the employer cannot
voluntarily recognized any new union because the law (Art. 256)
requires him to continue recognizing and dealing with the
incumbent union as long as it has not been properly replaced by
another union.
Second, only one union is asking for recognition; if there are two
or more unions asking to be recognized the employer cannot
recognize any of them; the rivalry must be resolved through an
election;
Third, the union voluntarily recognized should be the majority
union as indicated by the fact that members of the bargaining unit
did not object to the projected recognition. If no objection is
raised, the recognition will proceed, the DOLE will be informed
and CBA negotiation will commence. If objection is raised, the
35
LABOR RELATIONS
Simply said, the last paragraph means that the employer and the
union should conclude and register a CBA within one year from
the voluntary recognition, otherwise, the recognition will lapse and
a rival union may petition for a certification election.
3. SECOND METHOD: CERTIFICATION ELECTION
(C.E.)
Whenever there is doubt as to whether a particular union represents the
majority of the rank-and-file employees, in the absence of a legal
impediment, the holding of a certification election is the most democratic
method of determining the employees' choice of their bargaining
representative. It is the appropriate means whereby controversies and
disputes on representation may be laid to rest, by the unequivocal vote of
the employees themselves.
Exercising their suffrage through the medium of the secret ballot, they can
select the exclusive bargaining representative that, emboldened by their
confidence and strengthened by their support shall fight for their rights at
the conference table. That is how union solidarity is achieved and union
power is increased in the free society. Hence, rather than being inhibited
and delayed, the certification election should be given every
encouragement under the law, that the will of the workers may be
discovered and, through their freely chosen representatives, pursued and
realized.
3.1 Fact-Finding
In labor legislation, certification proceedings is not a litigation in
the sense in which the term is ordinarily understood, but an
investigation of non-adversary and fact finding character. As such,
it is not bound by technical rules of evidence.
The law does not contemplate the holding of a certification
election unless the preliminary inquiry shows a reasonable doubt
as to which of the contending unions represents a majority, or
unless ten per centum of the laborers demand this election. But
these grounds necessarily depend on the weight of the evidence
adduced by the rival unions, and this weight, in turn, cannot be
determined properly if the right to cross examination is denied.
Certification proceedings directly involve only two issues: (a)
proper composition and constituency of the bargaining unit; and
(b) veracity of majority membership claims of the competing
unions so as to identify the one union that will serve as the
bargaining representative of the entire bargaining unit.
But some of the employees may not want to have a union; hence,
No Union is one of the choices (candidates) named in the
ballot. If No Union wins, the company pr the bargaining unit
remains ununionized for at least 12 months, the period known as
the 12-month bar. After that period, a petition for a CE may be
filed again.
3.1a Certification Election Differentiated from Union Election
A union election is held pursuant to the union's constitution and bylaws,
and the right to vote in it is enjoyed only by union members. A union
election should be distinguished from a certification election, which is the
process of determining, through secret ballot, the sole and exclusive
bargaining agent of the employees in the appropriate bargaining unit, for
purposes of collective bargaining. Specifically, the purpose of a
certification election is to ascertain whether or not a majority of the
36
LABOR RELATIONS
replaced by another. And until so replaced it has the right to retain
the recognition by the employer.
The employer, says Article 258, may file a PCE when it has been
asked to bargain. If this happens, the holding of the CE becomes
mandatory if there is no existing registered collective bargaining
agreement. However, instead of itself filing a petition, the
employer usually lets the unions interplead to determine who
among them will bargain with the employer.
Other unions which are interested in joining a certification election
may file a motion for intervention. Such motion is governed by the
same rules that apply to a PCE.
Whether petitioner or intervenor, the union has to be an LLO.
If the petition for certification election was filed by the federation which is
merely an agent, the petition is deemed to be filed by the chapter, the
principal, which must be a legitimate labor organization. The chapter
cannot merely rely on the legitimate status of the mother union.
Where the constitution, by-laws and the list of members who supposedly
ratified the same were not attested to by the union president, and the
constitution and by-laws were not verified under oath, the local union has
no personality to file a petition for certification election it not being a
legitimate labor organization. The petition should be dismissed.
A union that has no legal personality to file a petition for CE has no
personality either to file a petition-in-intervention.
37
LABOR RELATIONS
The first three grounds are applicable to establishments with or
without a CBA; the last two are pertinent only to an establishment
with a CBA about to expire on its fifth year.
3.8a Ground 1: Petitioner not an LLO
Excepting Article 258, only a legitimate labor organization (LLO)
can file a petition for certification election. Thus, if the petitioning
union is not listed in the DOLEs list of LLOs or it has no CBA
registered in the DOLE, these facts raise doubt as to its being an
LLO, and the med-arbiter may dismiss the PCE.
But even if the union is listed as LLO or is a party to a CBA, its
legitimacy may still be questioned in a separate and independent
petition for cancellation to be heard and decided by the BLR
Director or the Regional Director himself.
Does the filing of a petition to cancel the petitioners registration
cause the suspension or dismissal of the PCE? No, the mere filing
foes not. To serve as a ground for dismissal of a PCE, the legal
personality of the petitioner should have been revoked or cancelled
with finality.
The filing or pendency of any inter/intra-union dispute and other related
labor relations dispute is not a prejudicial question to any petition for
certification election and shall not be a ground for the dismissal of a
petition for certification election or suspension of proceedings for
certification election.
No petition for a CE may be filed within one year from the date of
a valid certification, consent, or run-off election or from the date of
entry of a voluntary recognition of the union by the employer.
Thus, if an election had been held but not one of the unions won a
PCE may be filed again but only after 12 months. The law does
not want more than one election in a 12-month period. The same
bar applies if No Union won in the previous election.
38
LABOR RELATIONS
On the other hand, if a union has won, such union and the
employer must within 12 months start negotiating a collective
agreement. If they fail to do so, they are defeating the employees
wish to have a CBA; hence, the union or unions that lost can
petition again for a certification election after 12 months from the
last election so as to replace the unproductive bargaining agent
which, perhaps, is cavorting with the employer.
Ordinarily, a bargaining agent who failed to secure a CBA within 12
months could be suspected as a tool of management and should deserve to
be replaced. But if circumstances show that the cause of not having
concluded a CBA was not the unions fault, such union should not be
blamed, and a CE should not be authorized even though no CBA has been
concluded despite passage of twelve months. The situation takes the
nature of a deadlock bar.
The 12-month prohibition presupposes that there was an actual conduct of
election i.e. ballots were cast and there was a counting of votes. In this
case, there was no certification election conducted precisely because the
first petition was dismissed, on the ground of a defective petition which
did not include all the employees who should be properly included in the
collective bargaining unit, the certification year bar does not apply.
Neither does this bar apply if in fact there was a failure of election
because less than majority of the CBU members voted. In that
case, another PCE may be filed within six (6) months.
An election held less than a year after an invalid election is not
barred. Also not barred would be a second election held among a
group of employees who had not participated in the first election
and had not been given the opportunity to be represented as part of
the unit in the first election.
A radical change in the size of a bargaining unit within a short
period of time, raising a question as to the majority status of the
certified representative, may also prompt the NLRB to entertain a
petition for an election during the certification year.
The one-year rule does not apply to a unit clarification petition
filed during the certification year.
In a CE, the No Union choice won. Within 12 months from that
election the employer voluntarily recognized a new union and then
concluded with it a CBA. Is the 12-month bar violated? Are the
recognition and the CBA valid?
Excepted from the contract-bar rule are certain types of contracts which
do not foster industrial stability, such as contracts where the identity of the
representative is in doubt. Any stability derived from such contracts must
be subordinated to the employees' freedom of choice because it does not
establish the kind of industrial peace contemplated by the law.
39
LABOR RELATIONS
In other words, in deciding whether the 25% requirement is
applicable or not, the law considers the CBU involved, not the
whole enterprise. This, again, makes it easy for workers to
unionize, a basic objective of labor relations law.
Election Despite Lack of 25 Percent Support
Even in the situation where the 25% is needed. This requirement
may be relaxed.
Compliance with the said requirement need not even be established with
absolute certainty. The Court has consistently ruled that "even conceding
that the statutory requirement of 30% of the labor force asking for a
certification election had not been strictly complied with, respondent
Director is still empowered to order that it be held precisely for the
purpose of ascertaining which of the, contending labor organizations shall
be the exclusive collective bargaining agent."
40
LABOR RELATIONS
(b) Referendum to Register on Independent Union
This referendum is neither union disaffiliation nor severance; it is not
disallowed by law even while a CBA exists.
41
LABOR RELATIONS
Section 13. Order/Decision on the petition. - Within ten (10) days from the
date of the last hearing, the Med-Arbiter shall issue a formal order
granting the petition or a decision denying the same. In organized
establishments, however, no order or decision shall be issued by the MedArbiter during the freedom period.
The order granting the conduct of a certification election shall state the
following:
(a) the name of the employer or establishment;
(b) the description of the bargaining unit;
(c) a statement that none of the grounds for dismissal enumerated in the
succeeding paragraph exists;
(d) the names of contending labor unions which shall appear as follows:
petitioner union/s in the order in which their petitions were filed, forced
intervenor, and no union; and
(e) a directive upon the employer and the contending union(s) to submit
within ten (10) days from receipt of the order, the certified list of
employees in the bargaining unit, or where necessary, the payrolls
covering the members of the bargaining unit for the last three (3) months
prior to the issuance of the order
decide the appeal. The filing of the memorandum of appeal from the order
or decision of the Med-Arbiter stays the holding of any certification
election.
The decision of the Secretary shall become final and executory after ten
(10) days from receipt thereof by the parties. No motion for
reconsideration of the decision shall be entertained.
Section 22. Transmittal of records to the Regional Office. - Within fortyeight (48) hours from notice of receipt of decision by the parties and
finality of the decision, the entire records of the case shall be remanded to
the Regional Office of origin for implementation. Implementation of the
decision shall not be stayed unless restrained by the appropriate court.
42
LABOR RELATIONS
certification election shall be considered a qualified voter, unless
his/her dismissal was declared final judgment at the time of the
conduct of the certification election.
(c) the description of the bargaining unit and the list of eligible and
challenged voters.
Probationary Employee
Dismissed Employee
An employee who has been dismissed from work but has contested
the legality of the dismissal in a forum of appropriate jurisdiction
at the time of the issuance of the order for the conduct of a
43
LABOR RELATIONS
The respondents' argument that the petitioners are disqualified to vote
because they "are not constituted into a duly organized labor union"
"but members of the INK which prohibits its followers, on religious
grounds, from joining or forming any labor organization" and "hence,
not one of the unions which vied for certification as sole and exclusive
bargaining representative," is specious. Neither law, administrative rule
nor jurisprudence requires that only employees affiliated with any labor
organization may take part in a certification election. On the contrary, the
plainly discernible intendment of the law is to grant the right to vote to all
bona fide employees in the bargaining unit, whether they are members of
a labor organization or not.
The protesting party must formalize its protest with the Med-Arbiter, with
specific grounds, arguments and evidence, within five (5) days after the
close of the election proceedings. If not recorded in the minutes and
formalized within the prescribed period, the protest shall be deemed
dropped.
Section 15. Conduct of election and canvass of votes. - The election
precincts shall open and close on the date and time agreed upon during the
pre-election conference. The opening and canvass shall proceed
immediately after the precincts have closed. Failure of any party or the
employer or his/her/their representative to appear during the election
proceedings shall be considered a waiver to be present and to question the
conduct thereof.
44
(b) no challenge or eligibility issue was raised or, even if one was raised,
the resolution of the same will not materially change the results of the
elections.
The winning union shall have the rights, privileges and obligations of a
duly certified collective bargaining agent from the time the certification is
issued.
Where majority of the valid votes cast results in "No Union" obtaining the
majority, the Med-Arbiter shall declare such fact in the order.
Section 16. Certification of Collective Bargaining Agent. - The union
which obtained a majority of the valid votes cast shall be certified as the
sole and exclusive bargaining agent of all the employees in the appropriate
bargaining unit within five (5) days from the day of the election, provided
no protest is recorded in the minutes of the election.
LABOR RELATIONS
2. the election presented a least three choices, e.g., Union One,
Union Two, and No Union, meaning there are at least two union
candidates.
3. not one of the unions obtained the majority ofthe valid votes.
4. the total number of votes for all the unions is at least 50% of the
valid votes cast.
5. there is no unresolved challenge of voter or election protest.
3.14 Appeal to Secretary as to Election ResultSee D.O. No. 40E-03 (dated 30 November 2005)
3.15 Election Irregularities, Protest by Employer
The manner in which the election was held could make the difference
between industrial strife and industrial harmony in the company. What an
employer is prohibited from doing is to interfere with the conduct of the
certification election for the purpose of influencing its outcome. But
certainly an employer has an abiding interest in seeing to it that the
election is clean, peaceful, orderly and credible.
5. THE WINNER
REPRESENTATIVE
AS
SOLE
AND
EXCLUSIVE
45
LABOR RELATIONS
Article. 260. Grievance machinery and voluntary arbitration. - The
parties to a Collective Bargaining Agreement shall include therein
provisions that will ensure the mutual observance of its terms and
conditions. They shall establish a machinery for the adjustment
and resolution of grievances arising from the interpretation or
implementation of their Collective Bargaining Agreement and
those arising from the interpretation or enforcement of company
personnel policies.
All grievances submitted to the grievance machinery which are not
settled within seven (7) calendar days from the date of its
submission shall automatically be referred to voluntary arbitration
prescribed in the Collective Bargaining Agreement.
For this purpose, parties to a Collective Bargaining Agreement
shall name and designate in advance a Voluntary Arbitrator or
panel of Voluntary Arbitrators, or include in the agreement a
procedure for the selection of such Voluntary Arbitrator or panel of
Voluntary Arbitrators, preferably from the listing of qualified
Voluntary Arbitrators duly accredited by the Board. In case the
parties fail to select a Voluntary Arbitrator or panel of Voluntary
Arbitrators, the Board shall designate the Voluntary Arbitrator or
panel of Voluntary Arbitrators, as may be necessary, pursuant to
the selection procedure agreed upon in the Collective Bargaining
Agreement, which shall act with the same force and effect as if the
Arbitrator or panel of Arbitrators has been selected by the parties
as described above.
________
1. CONTRACT ADMINISTRATION AS PART OF THE
DUTY TO BARGAIN
Collective bargaining is not an end in itself. It is a means to an
end, which is the making of collective agreements stabilizing
employment relations for a period of time with results
advantageous both to the worker and the employer.
However narrowly it may canalize its course, the execution of a
contract does not complete collective bargaining. Piece rates and
work assignments frequently require day-to-day adjustments;
periodic decisions must be made concerning such matters as shop
rules, job content, and the letting of subcontracts. There will be
ambiguities in the agreement to be clarified and gaps be filled. In
other words, the duty to bargain continues into the contract
administration stage.
In effect, therefore, contract negotiations are the legislative
process of collective bargaining; the day-to-day working out of
plant problems is its administrative or judicial aspects.
Strengthening the binding force of the CBA, Art. 248 considers as
unfair labor practice any act that violates an existing collective
bargaining agreement. But this law must be related to Art, 261
which limits that kind of ULP to gross violations only.
2. C.B.A., LAW BETWEEN THE PARTIES
The provisions of the collective bargaining agreement must be respected
since its terms and conditions "constitute the law between the parties."
Those who are entitled to its benefits can invoke its provisions. In the
event that an obligation therein imposed is not fulfilled, the aggrieved
party has the right to go to court for redress.
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LABOR RELATIONS
expressly making reference to it. Only thus could its validity
insofar as some of its provisions are concerned be assured.
4. BINDING EFFECT OF AGREEMENT
It is true that whatever benefits the majority union obtains from the
employer accrue to its members as well as to non-members. For the
benefits of a collective bargaining agreement are extended to all
employees regardless of their membership in the union because to
withhold the same from the non-members would be to discriminate
against them.
5. ENFORCEABILITY
ENTERPRISE
AGAINST
TRANSFEREE
OF
47
LABOR RELATIONS
5.1 Purchase of Assets
The rule is that unless expressly assumed, labor contracts such as
employment contracts and collective bargaining agreements are not
enforceable against a transferee of an enterprise, labor contracts being in
personam, thus binding only between the parties. A labor contract merely
creates an action in personally 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.
As a general rule, there is no law requiring a bona fide purchaser of assets
of an on-going concern to absorb in its employ the employees of the latter.
5.2 Exceptions
Although the purchaser of the assets or enterprise is not legally bound to
absorb in its employ the employers 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.
AGENT;
7. GRIEVANCES
A grievance is defined as any question by either the employer or
the union regarding the interpretation or application of the
collective bargaining agreement or company personnel policies or
any claim by either party that the other party is violating any
provision of the CBA or company personnel policies.
If the term grievance is to be applied in the loose or generic sense,
any dispute or controversy respecting terms and conditions of
employment which an employee or group of employees may
48
LABOR RELATIONS
present to the employer can be a grievance, even without a union
or CBA.
The expansion of the original and exclusive jurisdiction of
voluntary arbitrators to include questions arising from the
interpretation and enforcement of company personnel policies has
the effect of widening the meaning and interpretation of a
grievance to include a situation where there is no collective
bargaining agent and no CBA.
Personnel policies are guiding principles stated in broad, longrange terms that express the philosophy or beliefs of an
organizations top authority regarding personnel matters.
They deal with matters affecting efficiency and well-being of
employees and include, among others, the procedures in
administration of wages, benefits, promotions, transfer and other
personnel movements which are usually not spelled out in the
collective agreement. The usual source of grievances, however, is
the rules and regulations governing disciplinary actions.
7.1 By-passing the Grievance Machinery: ULP
All grievances arising from the implementation or interpretation of
the collective bargaining agreement and/or interpretation and
enforcement of company personnel policies are compulsorily
subject to the grievance of machinery.
Upholding the requirement, the Court has ruled that the grievance
procedure provided in the CBA should be adhered to by the
parties. Refusal or failure to do so is an unfair labor practice,
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.
(b) If the grievance is valid, the shop steward shall immediately bring the
complaint to the employee's immediate supervisor. The shop steward, the
employee and his immediate supervisor shall exert efforts to settle the
grievance at their level.
8. VOLUNTARY ARBITRATION
Section 3. Submission to voluntary arbitration. - Where grievance remains
unresolved, either party may serve notice upon the other of its decision to
submit the issue to voluntary arbitration. The notice shall state 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
collective bargaining agreement. If the party upon whom the notice is
served fails or refuses to respond favorably within seven (7) days from
receipt thereof, the voluntary arbitrator or panel of voluntary arbitrators
designated in the collective bargaining agreement shall commence
voluntary arbitration proceedings. Where the collective bargaining
agreement does not so designate, the board shall call the parties and
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LABOR RELATIONS
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.
8.2 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 partieswith finalityby availing themselves of voluntary
arbitration.
As a master procedure voluntary arbitration takes precedence over
other dispute settlement devices (i.e., cases before the labor arbiter
or Secretary of Labor or the NLRC)
A dispute pending in voluntary arbitration (or compulsory
arbitration, for that matter) cannot be the subject of a strike or
lockout notice.
9. WHO MAY BE ACCREDITED AS VOLUNTARY
ARBITRATOR
The following are the minimum criteria for accreditation as voluntary
arbitrator:
1. A Filipino citizen residing in the Philippines;
2. A holder of at least a Bachelors Degree in any field of behavioral or
applied sciences or equivalent educational training short of a Bachelors
Degree;
3. At least five (5) years experience in the field of Labor-Management
relations;
4. Completion of a training course on voluntary arbitration 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.
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Arbitration
Informal
Not obliged
Not observed
No comparable
recourse
Hear
only
disputes
Not essential
appeal
industrial
LABOR RELATIONS
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. Contract interpretation disputes are
disputes arising under an existing collective bargaining agreement,
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.
2. JURISDICTION OF L.A. AND V.A.
The aforecited provisions of law cannot be read in isolation or separately.
They must be read as a whole and each Article of the Code reconciled one
with the other. An analysis of the provisions of Articles 217, 261, and 262
indicates, that:
1. The jurisdiction of the Labor Arbiter and Voluntary Arbitrator or Panel
of Voluntary Arbitrators 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 Labor Arbiters have original and exclusive
jurisdiction are enumerated in Article 217, and that of the Voluntary
Arbitrator or Panel of Voluntary Arbitrators in Article 261.
3. The original and exclusive jurisdiction of Labor Arbiters is qualified by
an exception as indicated in the introductory sentence of Article 217 (a),
to wit:
Art. 217.
Jurisdiction of Labor Arbiters . . . (a) Except as
otherwise provided under this Code the Labor Arbiter shall have original
and exclusive jurisdiction to hear and decide . . . the following cases
involving all workers. . . .
The phrase "Except as otherwise provided under this Code" refers to the
following exceptions:
A. Art. 217. Jurisdiction of Labor Arbiters . . .
xxx
(c) Cases arising from the interpretation or implementation of collective
bargaining agreement and those arising from the interpretation or
enforcement of company procedure/policies shall be disposed of by the
Labor Arbiter by referring the same to the grievance machinery and
voluntary arbitrator as may be provided in said agreement.
B. Art. 262. Jurisdiction over other labor disputes. The Voluntary
Arbitrator or panel of Voluntary Arbitrators, upon agreement of the
parties, shall also hear and decide all other labor disputes including unfair
labor practices and bargaining deadlocks.
4. The jurisdiction of Voluntary Arbitrator or Panel of Voluntary
Arbitrators is provided for in Arts. 261 and 262 of the Labor Code as
indicated above.
1. ARBITRABLE DISPUTES
A. A close reading of Article 261 indicates that the original and exclusive
jurisdiction of Voluntary Arbitrator or Panel of Voluntary Arbitrators is
limited only to:
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LABOR RELATIONS
practice and shall be resolved as grievances under the Collective
Bargaining Agreement. . . . .
B. Voluntary Arbitrators or Panel of Voluntary Arbitrators, however, can
exercise jurisdiction over any and all disputes between an employer and a
union and/or individual worker as provided for in Article 262.
It must be emphasized that the jurisdiction of the Voluntary Arbitrator or
Panel of Voluntary Arbitrators under Article 262 must be voluntarily
conferred upon by both labor and management. The labor disputes
referred to in the same Article 262 can include all those disputes
mentioned in Article 217 over which the Labor Arbiter has original and
exclusive jurisdiction.
As shown in the above contextual and wholistic analysis of Articles 217,
261, and 262 of the Labor Code, the National Labor Relations
Commission correctly ruled that the Labor Arbiter had no jurisdiction to
hear and decide petitioner's 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 collective
bargaining agreement. The Voluntary Arbitrator or Panel of Voluntary
Arbitrators has original and exclusive jurisdiction over the controversy
under Article 261 of the Labor Code, and not the Labor Arbiter.
52
They shall 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 voluntary arbitrator or panel of voluntary arbitrators. Before or at any
stage of the compulsory arbitration process, the parties may opt to submit
their dispute to voluntary arbitration.
The National Labor Relations Commission, its regional branches and
Regional Directors of the Department of Labor and Employment shall not
entertain disputes, grievances or matters under the exclusive and original
jurisdiction of the voluntary arbitrator or panel of voluntary arbitrators and
shall immediately dispose and refer the same to the appropriate grievance
machinery or voluntary arbitration provided in the collective bargaining
agreement.
LABOR RELATIONS
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 a
final settlement.
It is thus essential to stress that the Voluntary Arbitrator had
plenary jurisdiction and authority to interpret the agreement to
arbitrate and to determine the scope of hs own authority subject
only, in a proper case, to the certiorari jurisdiction of this Court.
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 of disputes.
The issue of regularization should be viewed as two-tiered issue. While
the submission agreement mentioned only the determination of the date or
regularization, law and jurisprudence give the voluntary arbitrator enough
leeway of authority as well as adequate prerogative to accomplish the
reason for which the law on voluntary arbitration 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.
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LABOR RELATIONS
1. General authority to investigate and hear the case upon notice of
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 proof documents and other
evidences, fact-finding and other modes of discovery, reopening of
hearing, etc.;
3. Special power 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.
5. FUNCTIONS OF ARBITRATOR
The labor arbitrator under a collective bargaining agreement is an
indispensable agency in the continuous collective bargaining
process. He sits to settle disputes at the plant leveldisputes
which require for their solution knowledge of the custom and
practices of a particular factory or of a particular industry as
reflected in particular agreements.
On the other hand, the power and authority of arbitrators in labor
dispute cases is derived from and limited by the terms of the
parties agreement. The arbitrator is confined to interpretation and
application of the CBA; he does not sit to dispense his own brand
of industrial justice. 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.
2.
WHO
DETERMINES
PROCEDURES
THE
ARBITRATION
3. It is without factual support in view of its language, its context, and any
other indicia of the parties' intention;
________
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.
54
the voluntary arbitrator to refuse or fail to turn over to the board, for its
further disposition, the records of the case within ten (10) calendar days
from demand thereof.
The Labor Code and its Implementing Rules thus clearly 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 be modified and set aside only
upon the same grounds on which a decision of the NLRC itself
may be modified or set aside, by the Supreme Court.
LABOR RELATIONS
4.2a From VA to CA: Mode of Appeal is Rule 43, not 65
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 to a case fails to appeal a judgment
despite the availability of that remedy, certiorari not being a substitute for
lost appeal. The remedies of appeal and certiorari are mutually exclusive
and not alternative or successive.
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