LABOR RELATIONS TSN 2017
FR. AGUSTIN NAZARENO. 4TH EXAM. ADDU – 3M
__________________________________________________________________________________________
UNFAIR LABOR PRACTICE
August 16, 2017
(1st Half: Yen Melendrez)
Any controversy begins with the definition of the employer.
What is meant by “employer”?
Article 219. Definitions.
xxx
"Employer" includes any person acting in the interest of
an employer, directly or indirectly. The term shall not
include any labor organization or any of its officers or
agents except when acting as employer.
Why is this definition controversial? Because in articles 258
and 259 there seems that there are only two kinds of unfair
labor practice:
(note: in the codal it should be 259 and 260)
1. Unfair labor practice of Employers [258] &
2. Unfair labor practice of Organizations [259].
After that, there is no more unfair labor practice. It seems
like there are only two actors.
Who are the two actors? It’s either you are:
1. Employer, or
2. The employee Organization
as far ULP is concerned. Because, anybody who acts in the
interest of the employer, whether directly or indirectly, is
deemed under the law as employer.
As supposed you are neither an employer or an employee,
can you commit ULP?
If you are police, a member of the PNP, if you go after the
union, dig [inaudible] are you acting in the interest of the
employer? In which case you are the employer because
the definition says “includes any person acting in the
interest of an employer, directly or indirectly”. So you will be
charged under 258. Is that the case? The notes say: nota
bene. It is not true. It is not only employers and labor
organizations that can commit ULP.
What is the basis of this? The basis is article 256 [257]. ULP
begins at 257[258]. But then there is 256 [257].
Article 256. 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 for their mutual aid and
protection, subject to the provisions of Article 264 of this
Code.
This now includes Any person: somebody who is not an
employer covered by 258[259], somebody who is not labor
organization under 259[260], you will fall under the
category of any person and you can still commit ULP.
How? If you “restrain, coerce, discriminate against or
unduly interfere”. That’s how third parties commit ULP.
As to employers, how do they commit ULP?
Article 258. Unfair Labor Practices of Employers. – It shall
be unlawful for an employer to commit any of the
following unfair labor practice:
a) To interfere with, restrain or coerce employees in
the exercise of their right to self-organization;
Xxx
3 ways. How do interpret that in the language in which you
were born?
Interfere with. kanang maglabot-labot, mag apil-apil.
Those terminologies mean don’t interfere. Palayo. Ayaw
pag apil-apil. That is the ideal stance of the employer.
Stand back.
Now if you are an employee, if you are a labor
organization, how do you commit ULP?
Article 259. Unfair Labor Practices of Labor
Organizations. – It shall be unfair labor practice for a
labor organization, its officers, agents or
representatives:
a) To restrain or coerce employees in the
exercise of their right to self-organization.
However, a labor organization shall have the
right to prescribe its own rules with respect to
the acquisition or retention of membership;
Xxx
Only 2 ways. Can you interfere if you are employee or
labor organization? Yes, you can.
The employer cannot: A third party cannot:
1. Interfere 1. restrain
2. restrain or 2. coerce
3. coerce 3. unduly interfere
4. discriminate
You can interfere as long as it is not unduly. What is unduly?
Means not an ordinary interference. It’s an unusual
interference. It is interference that is no longer tolerable.
Can they discriminate? The law says they cannot “restrain,
coerce, discriminate against or unduly interfere with
employees and workers in their exercise of the right to self-
organization”
What is Unfair Labor Practice (ULP)?
Article 219. Definitions.
xxx
(k) "Unfair labor practice" means any unfair labor
practice as expressly defined by the Code.
Q: Is it equivalent to saying that all ULP that may be
committed are already described by the law? So that ULP
is equal to what has been defined by law and can no
longer be added to?
- NO. According to the SC, the list in the law is just
the common ways of committing ULP. There are
still so many combinations that can constitute
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ULP. Because ULP is really a violation to the right to
self-organization of the employees.
What is the concept of ULP?
Article 258. 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, attorney’s 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.
It says that ULP are not only violations of worker’s rights to
self-organization, it is also a violation of society’s right to
industrial peace. Because if you disturb the exercise of the
right to self-organization, you invite action on the part of
organized labor. Many times, when organized labor
organizations resort to collective action, it becomes a
disturbance of peace. Kanang mag strike. It can escalate
and give rise to a criminal action.
The trouble is you cannot file a criminal case of ULP unless
the civil and administrative aspect has been terminated
and there has been a finding that ULP was in fact
committed. Then you can file with the prosecutor’s office
and he can file an information. Then you can begin trial.
However, you cannot use any of the proceeding in the
administrative aspect with the criminal proceeding. You
cannot pick the findings of the judge and use it as
evidence. You have to start from zero.
That is the problem. Because if you go from the admin
proceedings then appeal, basig patay na tanang
witnesses. So how do you begin? That’s why until now there
has been no conviction of ULP as a criminal case. The
concept is very difficult to put into reality. It’s only a crime in
the concept. The criminal aspect remains a concept.
Q: What happens if it is the government employees that
are interfered with, restrained or coerced in their exercise
of their right to form employees organization? Can they file
ULP?
- No, they cannot file. What is their remedy? They
file a complaint with the Labor Management
Council following E.O. 180, Section 15.
EO 180. VII. Public Sector Labor-Management Council
Sec. 15. A Public Sector Labor Management Council,
hereinafter referred to as the Council, is hereby
constituted to be composed of the following:
1) Chairman, Civil Service Commission Chairman
2) Secretary, Department of Labor and Employment
Vice Chairman
3) Secretary, Department of Finance Member
4) Secretary, Department of Justice Member
5) Secretary, Department of Budget and Management
Member
The Council shall implement and administer the
provisions of this Executive Order. For this purpose, the
Council shall promulgate the necessary rules and
regulations to implement this Executive Order.
In the case of PAMANTASAN NG LUNGSOD NG MAYNILA
VS. CSC ET AL. (241 SCRA 506) if you are government
employee and you are interfered with, restrained or
coerced in your exercise of right to self-organization, you
bring your complaint with the PSLMC. You can file with the
labor arbiter complaint for ULP.
Remember, 1-4-3. That is your lotto number.
Prescriptive periods
ULP 1 year
Illegal Dismissals 4 years
Money Claims 3 years
Remember that.
I think ¾ or 4/5 of cases of ULP are committed by
management.
Article 258. Unfair labor practices of employers.
b.) To require as a condition of employment that a
person or an employee shall not join a labor
organization or shall withdraw from one to which he
belongs;
Shortcut for that is Yellow Dog contract. This comes from US
labor relations. This is when an employer requires as a
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condition of employment that you do not join a union, or if
you are already a member of a labor organization, that
you resign.
Can an employer require that you join?
What if the employer has a Union Security Agreement with
the union and the Union security agreement says: “all those
who do not belong to the union may join the company but
once they become regular, they have 60 days to join the
union”. So the employer would say we like you, continue to
join the union.
So the employer can require if there is a Union security
agreement. But the union, the officer cannot require that
you resign from the union that you are already a member
of. The employer cannot require that you do not join the
union.
Suppose that you belong to a religious congregation, a
religious group that believes that membership in a union is
contrary to your religious tennets, there is a special law,
tailored to favor Iglesia ni Cristo because Iglesia forbids its
members to join. Is that valid?
VICTORIANO VS. ELIZALDE ROPE WORKERS union says that is
valid. That is subsequently revalidated in BASA VS
FEDERACION OBRERA DE LA INDUSTRIA TABAQUERA Y
OTROS TRABAJADORES DE FILIPINAS (FOITAF) (GR NO
27113).
What is the reason? Two rights are clashing here. Right of
freedom of religion—constitutional. Right to protect labor—
also constitutional. So labor wants to assert its rights that
there should be union. Why? Because the workers standing
by himself alone, unaided is weak vis-à-vis the employer.
But bonded together, that is the only chance that the
worker can stand in equal footing with the employer.
Ang tukog, kung nag-inusara siya, balion ko ni, sayon
kaayo. Ibugkos ang daghang tukog, kinsay makaputol ini?
Putla ninyo ning silhig nga gibugkos, dili na maputol. Ang
tukog nga nag-inusara dali ra mabali. And tukog nga
nakihig-usa didto sa daghan pag tukog, dili na mabali.
*father talks about datus in cultural minorities*
(2nd half Peter Quiel E. Vega)
UNION SECURITY AGREEMENT
Be reminded that union security agreement is interpreted
strictly against Labor, labor with capital “L” (labor
organization).
Why?
- Because in effect, it is a contractual derogation
of the right to self-organization.
1. One thing it cannot reach is when you are a new
employee but you have already joined a union. You
cannot be made to resign from the union to join the
exclusive bargaining agent with which they have this union
security agreement.
2. Second, if by religious belief you are prohibited to join
the union. (Victoriano case)
GENERAL MILLING case:
The workers here, who were members of the exclusive
bargaining agent (EBA), signed a petition for
certification election outside the 60 day freedom
period. They were expelled from the union for acts of
disloyalty.
According to the EBA, they should have done that
during the 60 day freedom period. So they ask
management to dismiss them because they are no
longer members of the union pursuant to the union
security clause (USC).
The workers filed an illegal dismissal complaint. They
were upheld by the supreme court. The SC says,
signing a petition for certification election (outside the
60 day freedom period) is not a violation of allegiance
to the union.
You just signed the petition. You did not say you are a
member of another union. You just want an election.
SC says, USC must be interpreted against the Labor,
because it is a derogation of right to self-organization.
UNIVERSAL RUBINA V. NLRC
Members of the Iglesia ni Cristo (INC) refused to join
the certification election (C/E). So they are outside
the union even though they enjoy the benefits the
union get from the collective bargaining.
After the expiration of the CBA, this same INC
members filed a C/E. They themselves had formed
their own union.
The incumbent moved to dismiss. They said “how can
they be allowed to file a C/E, when in fact they
asked for exemption to join the union because it is
against their religion. Now they want a C/E?”
Can someone whose religion is against union, later
on change his mind and go ask for an election?
The SC says, YES they can do it. If they will be subject
to disciplinary action by INC, it is between them and
INC. They can choose to exercise the right to self-
organization even if their religious faith prohibits them.
It is always interpreted, in cases of doubt, in favor of
“small L labor”- the solitary individual unorganized
worker.
Article 258. Unfair labor practices of employers.
(c) To contract out services or functions being
performed by union members when such will
interfere with, restrain or coerce employees in the
exercise of their rights to self-organization;
The case here is Shell Oil Philippines vs CIR.
SHELL OIL PHIL. V. CIR
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Shell had their own security guards. The guards were
their own employees. Then the practice of
contracting our security service was introduced.
Shell began to replace the guards who retire or resign
with those of the security agency. So at one time, they
have two kind of security guards – agency and own
security guards.
So the union says “this is ULP” because it is To contract
out services or functions being performed by union
members when such will interfere with, restrain or
coerce employees in the exercise of their rights to self-
organization. Union went on strike.
Is the practice of Shell ULP?
SC says NO. Shell is not contracting out. These
positions are vacated – retired and resigned.
It will be another story if what shell did was “all you,
you are hereby terminated” then replaced by
agency guards. But that was not the case.
Can security guard positions be contracted out?
SC says YES. It is not directly related to the business of
the entity.
Is there ground for strike?
SC says NO. There is good faith.
Suppose you make this arrangement:
There are a group of workers that are organized and you
convinced them to retire early. And you give them a
package – i.e. early retirement benefit plan.
Note: Talks about mo retire, unya mag business, unya
malugi. Tikangkang! Makaluluoy! Wa na napadayon ni
father ang situational, nakalimot na after story telling. haha
Supreme Court has said that subsequent contractualization
of regular employees position do not violate *** after the
former holder of these positions have exited their position
and receives separation pay because they are terminated
because of authorized cause, does not make
contractualization illegal.
Remember what is the yard stick? Those positions that are
not directly related to the regular main business of the
employer.
Article 258. Unfair labor practices of employers. (d)
To initiate, dominate, assist or otherwise interfere with
the formation or administration of any labor
organization, including the giving of financial or
other support to it or its organizers or supporters;
The employer cannot act negatively against the union.
Also, the employer cannot act towards the union. e.g.
tawgan niya ang union “wa namoy kwarta? Hatagan
tamo para maka organize mo’g meeting.” That is ULP. The
employer cannot help. Cannot discourage, and also
cannot help.
Why? That becomes a Company union.
Article 219. XXX
(i.) "Company union" means any labor organization
whose formation, function or administration has
been assisted by any act defined as unfair labor
practice by this Code.
Q: When can an employer give to a union without
committing ULP?
- If there is a proviso in the CBA, that the employer
can give the following benefits to the union by
way of assistance.
E.g. When management agrees to provide for a union an
open space, pay the telephone bill, electricity bill, and
water bill.
Management does not want to specify their assistance in
the CBA because it will become a burden as continuous
practice. What they do is to agree to a general clause –
“management agrees to extend to the union such as
financial, materials, spiritual aid as the union agrees to
accept and refuse.” So they cannot commit ULP.
*talks about Jesuit giving food to those who conduct strike.
It cannot be. Fr. Suggest, ihatag sa madre unya ang madre
mo hatag nila, no ULP.
E.g. There are 3 unions. Ang isa imong gipagamit sa room
sa management para mag meeting. Ang duha, wala. That
is ULP.
E.g. Management organizes a union. It becomes a
company union, that is ULP.
Article 258. Unfair labor practices of employers.
(e) To discriminate in regard to wages, hours of work and
other terms and conditions of employment in order to
encourage or discourage membership in any labor
organization. Nothing in this Code or in any other law shall
stop the parties from requiring membership in a recognized
collective bargaining agent as a condition for
employment, except those employees who are already
members of another union at the time of the signing of the
collective bargaining agreement.
Employees of an appropriate bargaining unit who are not
members of the recognized collective bargaining agent
may be assessed a reasonable fee equivalent to the dues
and other fees paid by members of the recognized
collective bargaining agent, if such non-union members
accept the benefits under the collective bargaining
agreement: Provided, that the individual authorization
required under Article 242, paragraph (o) of this Code shall
not apply to the non-members of the recognized collective
bargaining agent;
1st paragraph: So you cannot, in preference of a particular
union, change hiring or working conditions for those who
are members of that union that you favor especially during
certification election.
2nd paragraph: That is individual written authorization, it
does not apply anymore.
But it is my submission that this agency fee for those who
are not members of the union must be included in the CBA.
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Otherwise, the non-union members has a heavier burden
of supporting the union than the union members
themselves because the union members cannot be
deducted union dues automatically from their pay unless
there is a provision in the CBA (Article 113. Wage deduction
– No employer in his own behalf or in behalf of any person
shall make any deduction from wages xxx b. for union dues
in cases when the right of the worker in his union is checkoff
as recognized by the employer or authorized by the
worker). General rule is you cannot deduct from wage
union dues unless there is CBA provision.
If the agency clause of Art.258 E is carried out even without
a provision in the CBA, then the burden of contributing to
the union is heavier to the non-union member than the
union member. So there must be a provision in the CBA
that non-union members must contribute the same as
union members so that there will be no free riders.
Take note of that because many believe that this is
automatic, with or without a provision in the CBA the
employer can deduct agency fee, NO. if you cannot
deduct union dues without a CBA provision, more reason
you cannot deduct agency fee without a provision in the
CBA.
___________________________________________
August 17, 2017
It is observable when you restrain somebody. It’s obvious,
isn’t that? Even without ULP, that’s a crime under the RPC.
When you constrain somebody, even if it is for a good
purpose, it is still actionable under the RPC. Only, you
cannot bring it to the Labor Arbiter because it is not labor-
related.
But when you say ULP by restraint or coercion, and it is
labor-related, you bring it to the Labor Arbiter.
But if the policeman should detain you, coerce you from
not attending a labor meeting, are you going to say “You
are committing ULP against me?” Ayaw! Pangitaa ang
bug-at kaayong sumbong. Punita sa RPC, crimes against
the fundamental law. Third year na gud mo. Gamitang
tanang balaod na inyong nahibaw-an. Only… kung
muadto ka sa regular courts, what’s your problem? Proof
beyond reasonable doubt. Ari ka sa LA, the quantum of
proof – substantial evidence lang, position paper, affidavit.
Unsa pa man? Dali kaayo. Wala nay direct examination.
Ari ka sa regular courts, patimbangon mo.
Now, procedural, you can see right away whether ULP is
committed. But what is problematic in Article 258 is speech
– ULP which constitutes speech. Because [?] opposite to it is
freedom of speech. And freedom of speech is not an
ordinary right. It is one of the fundamental rights of this
Republic. It is a privileged right, so privileged that it breaks
the norm of laws. The SC says, if a law passed by Congress
has the immediate effect of abridging speech, then it
comes before this Court the heavy burden of proving its
validity. Mao ra nay balaod na tumason(?) na wa pa gani
kaabot sa Korte. Pag-abot sa korte, it has the burden of
proof to show its validity if it abridges the freedom of
speech.
Q: Now, it happens that you have to determine what
speech constitutes ULP speech and goes beyond the tail of
the protection of freedom of speech. What is that?
- In the Insular Life case, the SC made this
pronouncement: Speech that contains promise of
reward or threat of reprisal is ULP speech and
does not enjoy the protection of freedom of
speech.
 Promise of reward – that is the carrot.
 Threat of reprisal – that is the stick.
Bunal ug himas-himas. Kanang duha, ULP speech.
Then, subsequent rulings by the Court.
- Interrogations on the part of the employer of the
activities of the different employees which is
related to his exercise of the right to self-
organization are unwarranted speech.
 Unwarranted speech.
Kinsa dinhi ang mitambong sa union meeting? Kinsa dinhi
ang ni-file na’g application na magpamiyembro siya sa
union? Buang-buang mo… Wa na. That is already ULP
speech. That’s already interference.
Let us say, an employee is absent. Then naay
nakahukom(?) sa supervisor, tsk. Tambong ko sa meeting
sa union, sir. Leader siya sa union. Nitambong to. So ready
na ang supervisor pagkaugma, siga dayon ang mata, kit-
an ang leader, “Dali leader dali. Diin man ka gahapon?”
“Absent ko, sir.” “Absent lagi! Diin man ka? Nganong
absent man ka?” Muingon dayon siya. “Nagsakit akong
asawa, sir, naglaba ko.” “Ayaw pamakak. Diin ka man
gyud?” “Bitaw, sir, … union union, naminaw ra pud ko. Para
kini sa kaauyhan. Nitambong ko sa union meeting.” Buang-
buang ka… Unsa man na? ULP! Kung pagtubag niya,
undang dayon ang supervisor, wala. There is no ULP, if he
does not go beyond legitimate, valid employer interest.
Because “absence” is a valid employer interest. Pero
tuhugon pa gani nimo. Pangitaon pa gyud nimo
nahinungdan unya muabot ka na sa union meeting, wala
na kay labot ana. Diba? Union activity exercised with the
right of self-organization, as far as the employer is
concerned, is not of his business. So you cannot enter sa
restricted data(?).
Karon, there are employers who will say: We hear naay
union-union ngani magporma. Unsa pa mo? Pagbantay
mo kay naa baya koy mga espiya diha ninyo. Mao na
sila’y musulti kung kinsa ninyo ang ga-union-union kay
namiligro na mo. Pang-apply na lang mo ug lain kay ang
adlaw ninyo musawom(?) na, paingon na sa paglubog sa
adlaw. It is the sunset of your employment. Wa na. Unsa
man na? That is a threat of reprisal. That is ULP speech.
Don’t ever do that. If you do that, you commit ULP.
Muingon sad ka, unsa man inyong gikasuk-an, gikalagutan
ninyo? Gusto mo ug increase sa sweldo? Ato na lang nang
panagsultihan. Sigurado kani ihatag na sa management
ninyo basta ato ra nang panagsultihan na kalma, unya
naay productivities sa kamumutana(?), ihatag na. Unsa
man na? Promise of reward. ULP. Hain dapit ireward jud
nimo.
Iingon nimo. Ugma naay raise tanan across the work arun
di namo mag-union-union. Tagaan tamo dayon ug raise.
Dili na mo magkinahanglan mag-union pa arun makakab-
ot sa gipangandoy ninyong asenso sa sweldo. Tagaan mo.
Unsa man na? ULP. Gitagaan na mo ug raise, unfair
gihapon? Connected man gud sa union activities. If your
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action of rewarding is designed to discourage union
membership, it is ULP.
So, patay hala, pagbantay. Karon, naa nay election sa
union. Naay muduol na grupo ngadto sa management.
Muingon: “Sir, kami nagkagrupo dinhi kay gibati mi sa
kumpanya. Unsa kaha sir kung sultihan na lang mi ninyo sa
tinuod. Kinsa may union na kandidato run na duol gyud sa
inyong kasingkasing kay kana akong irecruit?” Sila pa jud
nangutana. Unsa man imong buhaton? Ingnon nimo, “Tan-
awa ra gud na. Imo man ming ibutang sa pandaot. Dili
man mi mamahimong musulti aron makadani(?) ninyo sa
inyong dapiga. Di man mi mahimong musulti ana. Pero ug
mao kanang union inyong ihinganlan, mutambong mi, o di
ba mudumili mi. FMW. Wa mi musulti ha.” Unsa man na?
Mao nay inabogado nga pagsulti. Mao may speech ato.
Mao may speech. Takigan sila sa likod… Be careful of so-
called “Borderline Speech” because there is a ruling of the
SC on borderline speech.
“Borderline speech”
- speech that is designed by the lawyer intended
not to break any law, just take the course, and
yet deliver the same message.
Unsa man na? Normally, it is given to so-called “captive
audience”. Way trabaho. Undangan trabaho. Tigom mo
tanan unya sa gym. Naa tanang mga trabahante. Unya
pagtindog ngang HR ug VP for Labor Relations, nya giayo
na na siyag rehearse sa abogado, so that they will not utter
any promise of reward or threat of reprisal.
Muingon siya, nakahibalo ba mo kung unsa kabug-at niini
atong paga-isturyahan karon? Una, kay giundang man jud
nato atong trabaho. Giundang nato ang trabaho kay
bililhon kaayo ning atong pananghisgutan. Panaghisgutan,
siya ra diay ga-isturya. Tan-awa ninyo, naa nay gatikaw-
tikaw dinha. Di man gyud nato matago. Naa nay
nagtikaw-tikaw nga nagpupurog union. Siguro gi-kablit na
ka, giduol na ka, gikidhatan ka, kay ikaw man ang ilang
gingkinuha. Karon, ako nay katakusang tao mitindog dinhi
na musulti ninyo ayaw na buhata. Kay naa na sa balaod.
Kahibaw ba ka nga naa na sa Labor Code! Katungod na
ninyong mga trabahante nga mag-union, self-
organization. Naa. Inyo nang katungod. Pero bisan
maingon kag inyo nang katungod, kinahanglan gihapon
imo nang timbangon. Diba? Katungod ninyo mag-minyo,
unya mag-gakos ra diay mo dayon? Dili! Timba-
timbangon, diba? Katungod man nang mag-minyo, pero
naa bay tao nga magminyo dayon nga way huna-huna?
Dili! So kitang tanan maghuna-huna, unsa man akong buot
ipahunahuna ninyo?
Tan-awa ra gud, naa tay silangan dinha pareha tag
produkto ha, sabon. Buhat tag sabon, buhat pud syag
sabon. Kahinumdum mo nga kana sila nag-apas sa ila kay
sila man ang number one. Karon, unsa naman ang
nahitabo? Kalooy sa Diyos, sila na sad ang nag-apas nato.
Ngano may mahitabo na? Nakahinumdom mo niadtong
panahona na nagkagubot sila, naa toy strike-strike. Tungod
man to kay nag-union-union man sila. Pero dili ko muingon
na ang union dautan.
Atras-abante ba. Kanang ing-ana. Mao nay gitawag ug
“borderline speech.” Does not contain any promise of
reward or threat of reprisal. How will you characterize that
speech? Is that speech lawful speech or is that ULP?
The SC says: Borderline speech is marked by its contents
and its discourse(?). Ang muhatag kaniyag tinuog kolor,
ang iyang kagikan ug ang kahimtang diha sa iyang
paglitok ana. “Captive-audience speech”, whether the
employee has a chance to speak out his mind is already
negative against borderline speech.
- If it is uttered by an employer that has one been
involved in anti-union behavior, then that speech
which may sound neutral legally is characterized
as ULP speech. Mao na history. Naa gani na siyay
history nga gipasakaan siyag ULP nga kaso
tungod kay nagpahawa siya… ULP kanang
borderline speech. That is the ruling of the SC.
I’d like to square this with what you are familiar with in
remedial laws. Third year, evidence naman mo. What is
that rule in evidence that says evidence that one did not
do or did in one occasion is not evidence that one did or
did not do in another occasion? Unsa man na? Miingon ka
nga kini siya, nadakpan man ni nangawat kadto, e di siya
gyud ning nangawat run. Unsa man na? That is a fallacy,
isn’t that? Because evidence that one did or did not do at
one time is not evidence that one did or did not do in
another time. What is that rule? That rule is “res inter alios
acta”.
Unsa man na? Remedial law na. Although, you know very
well that recidivism is aggravating in criminal law. A
criminal record is evidence that you did something in the
past. Now, if for some other evidence, it is already proven
but now you repeated what you did in the past, you are
not convicted, that fact is routine, that means you are a
recidivist, and the penalty is commensurably increased
because you are repeat offender. But in the conviction
now of this charge, you don’t use that as evidence that
you did it! You cannot use that. That is res inter alios acta.
Now is this the case here? Tungod kay ang employer was
charged before of ULP, harassing workers that were
organizing a union so much so that the union was not
formed and now he gives this borderline speech, therefore
that borderline speech is ULP speech. Is not that inter alios
acta?
Violation of the inter alios acta. Res inter alios acta does
not prohibit you from using past behavior, bringing it now in
order to prove habit. Mao baya nang pirming gamiton
anang mga pedophiles. Mao baya na. Because kanang
child abuse is a character disorder which cannot be
controlled except by intensive therapy. Now, if you have
been proven in the past that you are linked with these
minors. Muingon pirmi kauban-uban minors, unya naay
mga litrato… akbay-akbayan nimo. Ipakita ana. Unsa may
buot ipasabot ini? 60-anyos, unya iyang mga kauban, 12,
13 intawon ang edad. Kani sila dinhi nagkatawa silang
tanan. Wala sila naghilak. Mao man na. That’s how to
prove habit. How to prove character. Why do you want to
prove habit and character? To make the probability of the
commission of the crime as charged that it is not
impossible. In fact, that it is highly probable. That’s what
you want to prove. So that is the same thing.
ULP speech that is concluded because the borderline
speech that was made has a history on the part of the
speaker. Employer has a history of anti-union incidents. And
that in the circumstances obtaining, the employees are left
with no choice but to take it or leave it. Wa man sila. Hilom
tawon sila. Naa sila dinha. Captive audience sila. Gi-
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himayhimayan sila. Gitambagan sila. Giapil ang kasaba.
Alam-alam. Hadlok-hadlok. Naa man sila dinha. Those
circumstances betray the underlying agenda of
discouraging union activity.
Alright, we accept that. Dautan kanang ULP speech. Let
me tell you what many will not tell you. Many will not tell
you this but I tell you this now. What is it? 233. 238, rather,
because 233 has renumbered before the amendment. It is
now 238, privileged communication.
*Based on 2017 DOLE renumbering:
ART. 239 [233]. PRIVILEGED COMMUNICATION. – Information
and statements made at conciliation proceedings shall be
treated as privileged communication and shall not be used
as evidence in the Commission. Conciliators and similar
officials shall not testify in any court or body regarding any
matters taken up at conciliation proceedings conducted
by them.
(*Editor’s note: Article 238 is the Azucena renumbering of
the codal used by Father)
Information and statements made at conciliation
proceedings shall be treated as privileged communication
and shall not be used as evidence in the Commission, i.e.
NLRC before the LA. Conciliators and similar officials shall
not testify since they are present at the conciliation and
mediation proceedings. Conciliators and similar officials
shall not testify in any court or body regarding any matters
taken up at conciliation proceedings conducted by them.
Q: So, is there any instance when you can make a promise
with the view of changing the behavior and getting them
to change their pro-union behavior? Is there an instance
where you can make a threat?
- That instance is during the privileged
communication of conciliation and mediation.
You cannot be charged with ULP because it is
privileged.
Diha ka makapangisog, makapangadlok, maka-threaten,
unsa pa imong buhaton dinha. You cannot be held liable.
Why? Because it is privileged. That is the only exception I
know where you can utter threats of reprisal or promise of
reward. Otherwise, be careful with your speech. Be careful.
Labi na ron, karong panahuna, there are all sorts of
recording systems. Wa ka kahibaw kana imong gika-
istorya, they are wired. Wa man ka kahibaw. Ayawg
kumpiyansa.
Now, for the union, no problem. They can threaten. They
can make promises. Wala man nay problema sa union,
because they can interfere. They can interfere.
The SC has held: Even an ineffective threat of
management is culpable. What do you mean by
“ineffective threat”? Naa kay supervisor. Unsa iyang height,
4 feet. Ang iyahang mga tao tanan, mga 6-footer, dagko
kaayo sa tanan, isog kaayo sa iyaha. Unya siya, kinsay ga-
union ninyo diri?! Mubagul-bagol ra ni. Dili na siya kaabot…
Unya isog kaayo siya sa tanan. Katawa lang sila.
Has he committed ULP? SC says: YES, he has committed,
because the words taken in themselves are threatening.
And the law does not require that the threat be successful,
because if the law requires that then the law will seek to
make existent which it wants not to exist. Mao bitaw nang
naay balaod ana arun wala tay manghadlok. So, mao
man nang “dangerous tendency rule”, diba? Kinsa tung
nagsinggit nga Bol-anon na “all of us should take all our
bolos and cut the head of Governor-General”, kinsa to?
Tung Amerkano na iyang gi… sa liog, tua na siya sa Bohol.
And the nervous SC, headed by an American chief justice
convicted him of rebellion. Layo ra gud kaayo siya. Unya,
sugdan na diri iyahang… tua pa siya sa Bohol. Putlon kuno
niya ang liog ni Governor-General Harrison ba to o kinsa
na? And the SC says, that is “rebellious speech”. Even
though it’s ineffective.
So, speech in the very least must not contain any promise
of reward or threat of reprisal. You threaten somebody
which with an evil that will befall him, and there is no
subject evil. Miingon kag komedya ra man to. What is that?
That is ULP speech.
I have spies. They will report to who will join in the union. Wa
jud kay spy bisag gusto mo. It’s not true. But because you
uttered that threat, that is ULP.
Now, with all the more reason if you have to change
working conditions so as to influence the behavior of the
employees with regard to exercise of their right of self-
organization.
Nag-union sila, nasuko ka. Maingon ka, pa-investigate
nimo, naa diay silay mga sala. Nya sultian tamo tanan
kanang una nga mudangop sa union, kanang mga sad-
an. Ang una nga gusto mag-union, kana maong sad-an.
Katung way sala, di man to sila magkinahanglan ug union.
Tan-awa nang mga computer programmers, computer
database administrators, kanang mga analysts, ga-union
ba na sila? Wa na sila ga-union. Kay ngano man? Kay mao
man sila ang trabaho gagukod nila, sila wa maggukod sa
trabaho. It’s a seller’s target for them, silay hari. Wa na sila
ga-union-union. Samok-samok ra man na. Katung daghan
kaayog nangita ug trabaho, nihit ang posisyon, mao nay
mag-union. Unya katung naay sala, kay matangtang na
sila sa trabaho kung mapatud-an ang ilang sala, mao nay
nagkinahanglan jud sa union.
So, kung ikaw ang organizer, unsa imong buhaton?
Pangitaon nimo ang ilang dehado nga mga tao. Imo na
silang… painiton nimo ang dugo. Diba? Pareho ra na sa
tactics sa aktibista, diba? Initun nimo ang kasingkasing.
Tan-awa among mga… gidaug-daog. Pagsugod ana,
ikaw na nay gidaug-daog kay pamarchahon man ka,
ipadool ka sa pulis, duklon ang imong ulo anang batuta, e
di dugo-dugo na ka, kini baya atong ulo gamay lang
kaayog samad daghan kaayog dugo mugawas... … Mao
na. Mao nay mahitabo. Sa union, mao sad na.
Kinsa ang nasud nga labing niasenso sa labor? Kinsa?
China! 300-400 million people lifted out of poverty… 300-
400 million people lifted out of absolute poverty. What is
absolute poverty? In the 1980, it was living with $1 and
below. Now, inflation is were $2 na karon. If you live on $2 a
day, you are in absolute poverty. Karon diri sa ato, P100 ra.
P100. If you live on that, you are in absolute poverty.
Muingon dayon ang nag-eskwela, uy, P80 ra man akong
baon run… China has been lifted out of it. China. How did
it lift itself out? 300-400 million? Unsa man nang numeroha?
That was the whole of Europe in the eve of the Second
World War. That’s the population of Europe. Lifted out of
poverty in a space of 30 years! How did it do it? Nag-union
ba sila? Wala! Kayod tawon ang Intsik… nisamot nga
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kapikot ang mata gatrabaho. Trabaho gyud maayo. So
much so that our minimum wage here now in the
Philippines is a laughing stock in China. They did not work
for our minimum wage here. Taas na ilang minimum wage
didto! Kataw-an ra na!
For a country who never had a minimum wage, we are a
laughing stock. And we have minimum wage since 1954.
Where did it bring us? Nowhere! Who lifts us up? Guys who
work abroad. That 4.2 million of them, they’re sending
money here. They’re the ones who lift us up. Now, our
organized labor force, our minimum wage, it doesn’t lift us
up. And yet they are still discussing ENDO last night…
pagka way hinungdan! Wa gyuy niasenso. Tae ra na nga
isturya. I’m not basing words because I don’t have too
much time left. I’m in the sunset of my life. But if you choose
that track, nothing will happen. Nothing. It is tried and
tested.
But for your sake, you better study what borderline speech
is, what ULP is, because unless you have a ticket, you can’t
enter the gate. You have to have a ticket. The ticket to
show forth that you have slayed it out, you paid your dues,
you put your back against the wheel, you have earned it.
Maybe you should be able to exhibit calluses in your ass,
because in the end, that is what matters. How long have
you sacrificed? If you’re brilliant, doktora sa, wa na sa law.
Mathematics gani,… you provide proof that one is bigger
than zero. Write a thesis of that. But in law, unless you have
read it, you don’t know it. You have to have read
everything. And that requires sitting. Sitting down. Keeping
that part of your anatomy that has never seen the sun,
away from the sun for an even longer period of time. Sit it
out. Read it. You must love it. Learn to love it…
___________________________________________
September 13, 2017
(first half)
So, this is my recommended book because there is no
other book. ***Talking about the other authors***. So, what
happened is that we are left with Chan. So, what did he
do? He made it very expensive.
All right, we are already through with ULP just one concept I
will leave behind with respect to ULP. There is an old SC
ruling, you can check it with Chan where it states that ULP -
since it can ripen into a criminal case, ULP cannot be
compromised. That is important. The DOLE believes that it
can be compromised. The NLRC believes that it can be
compromised.
FR: NO! IT CANNOT BE.
Q: What happens if there is a settlement?
- With respect to issues involving ULP. There is simply
a failure to prosecute just like in criminal cases.
Mag file ra ug affidavit of desistance ang
complainant.
Q: Is that a compromise?
No! It is not a compromise. There is just a failure to
compromise. The prosecution presents its case the witness
does not appeal. The main witness is the complainant so
how can he take a conviction. So, what happens. The
accused will move to dismiss for violation of his
constitutional right for the speedy disposition of his case.
And so, the court has no choice but to dismiss his case. But
that is not a compromise. What happens when there is a
ULP and there is a settlement of the issues involving ULP.
The next topic after ULP is strikes and lock outs.
STRIKES AND LOCK-OUTS
Article 212
o.) “Strike” means any temporary stoppage of work by the
concerted action of employees as a result of an industrial
or labor dispute.
Three elements to that: Definition.
1. It is a temporary stoppage of work.
2. It is by the concerted action of the employees.
- In other words, the employees act together to put
a stop to work. And then the underlying reason or
ground or cause for this dispute is an industrial
dispute.
3. It is an industrial dispute.
Let us go over the elements one by one.
1. It is a Temporary stoppage.
Now, if the stoppage is no longer temporary it is permanent
stoppage. Why? Because what the workers did is to burn
the workplace. Unsa pa may mahimong trabaho ana. That
is not a strike that is Arson.
Now, in the early days of industrial revolution. The French
worker was known to stop work by means of destruction of
company property. The French workers use wooden
slippers. Niadto intawon sa wala pay fashion, that is the
footwear of the lowly worker. And then when they had a
dispute with respect to wages and the hours of work they
will have a leader. Let us say they are in a textile factory, at
a given signal they get their “sabot” that’s what they call
their slippers. And then they throw their sabot into the
machine - all their machines. That is how the word
sabotage came into the vocabulary because of the sabot.
Kanang wooden slippers of the ordinary French worker.
Ilabay nila guba ang makina undang ang trabaho.
Now, before it was maintained that this was a labor
stoppage, that is criminal in nature, that is a destruction of
company property. The work has stopped but it is not a
temporary stoppage the workers take up the work by their
own volition. Additional costs on the part of the employer.
So, the essence of strike is that it is temporary. In fact,
Justice Fred Ruiz Castro states that a strike is an extension
of the bargaining process so as to force or compel the
employer to grant what they have asked. Now, if what
they are asking is not required by law then that is called an
economic strike. Gusto ka magpataas ug sweldo then
when the employer is only paying above the minimum
wage and you want something higher therefore you
engage in an economic strike.
But if the essence of the dispute is the rights of the worker,
let us say the right to representation the right to form a
union; the right to self-organization; the right to minimum
wage then you have what is called an Unfair Labor
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Practice (ULP). So, basically those are the two classifications
of strikes under the Labor Code:
1. Economic Strike;
2. ULP Strike
Economic strike is all about price. There is a famous story
about George Bernard Shaw. He is a very famous
playwright in the UK. His story was to this effect one of his
admirers which today we call “fans” and they were
engaged in conversation and Shaw says there are so many
rich people in London who can have their way.
So, if you have a million pounds you can get every girl you
want to sleep with and so he turns to this girl and said will
you consider sleeping with me for a million pounds? “I find
that difficult” said the girl. But will you consider it? “Yes,
maybe I will consider”. And then Shaw said how about
sleeping with me just for ten pounds? “The girl said of
course not. How dare you?” “I am not insulting you. It is
already established that you have price. Now we are
talking of the most economical price.”
Now, because you are in a relationship of labor and
management there is always a price. And nobody talks
about an outlandish price. A price that is only sufficient for
you to absorb and never let go of your enterprise. And you
as an employee there is just so much price which you are
willing to give the strength of your arm for that price. And
this is always the subject of deeper relation and sometimes
it can be achieved by sometimes temporarily withholding
your work that could you temporarily withhold it to find out
that the price was low. The consequence is too steep in not
paying the price. That is what Chief Justice Castro says that
is the extension of the bargaining process.
2. It is by the Concerted Action of the employees.
Now, concerted action you cannot achieve this by
yourself. So, it is not an individual right. It is a collective right.
Q: Who desires to strike?
- It is the labor organization. Because it says
concerted action of the employees.
The issue is: Is it the collective (right) of the worker or the
union which is a separate and distinct personality. Kinsa
man the workers by themselves or the union in its separate
and distinct personality. That is the issue.
Q: Why do I say na that is the issue?
- Because in the definition it just says by the
concerted action of the employees.
- There is no talk here about the union whether or
not it has the right. But when you talk about
Article 277 –B (263) the right of the unions to strike
and the right of the employee to withhold work
shall be recognized by the State according to
277-B. So, there are two contrasting provisions
here. One that says that the right of the workers to
strike is vested in the employees in general and
the other is that it is vested in the union as a
separate entity.
Article 277. Strikes, Picketing and Lockouts.
a.) It is the policy of the state to trade unionism and free
collective bargaining.
b.) Workers shall have the right to engage in concerted
activities for purposes of collective bargaining or for their
mutual benefit and protection. The right of legitimate labor
organizations to strike and picket and of employer’s
lockout, consistent with the national interest, shall continue
to be recognized and respected. However, no labor union
may strike and no employer may declare a lockout on
grounds involving inter-union and intra-union disputes.
Q: Why is that important?
- Because this issue still happens. It has not been
decided by the Supreme Court with finality. It has
not been decided.
For instance, several years back here with the BPI group of
employees. It’s the only BPI that is separately unionized
here in the Davao provinces. And when they were
organized they filed a notice of strike as soon as possible
because according to them they were harassed by the
Ayala management to discontinue in their formation.
So, what happened was they immediately affiliated with
the militant organization under the umbrella of KMU. At that
time, it was NFL. So, after they affiliated they filed a notice
of strike but after they filed a notice of strike the workers
became subject to a counter propaganda by the
management. “NFL had so many strikes before look at
what happened to DLPC, Coca Cola, etc. So many
people lost their employment because it is a militant union
it has so many agenda. You are putting yourself in the
hands of a militant group.”
So, the general members of the union became shaken and
they told the leaders we don’t want NFL. So, what
happened, the leaders were forced to disaffiliate and they
have no independent registration. So, what happens is
they continued their strike. It took them sometime to get
together and to file an independent registration because
there were other people rising among them who wanted
to be leaders so that the left leaning leaders among them
will be ousted.
In the meantime, the strike notice that they filed had
already matured. It is already 15 days. Pero wala naman
diha ang union kay dili naman sila affiliated ato, the issue is
if and when they have opted for an independent
registration, are they still obliged to file another notice of
strike?
So, mag-ihap na sad sila ug another waiting period of 15
days? Are they obliged to wait for another waiting period
because they now have to file a new notice of strike if you
claim that the right to strike belongs to the labor
organization then you have to file a new notice of strike if
you claim that the right to strike in the collective members?
The case was brought up to the SC but the SC has already
decided that the strike was illegal due to other
circumstances involved. But the SC did not decide on that
particular issue even if it was raised in that position paper.
As the SC decided. So, if the question is ever raised you
have to bring out the idea that the definition does not limit
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the right to strike within the labor organization it just puts it in
the concerted action of the employees whereas the
prohibition on the right to strike which is found in the Labor
Code squarely puts the right to strike with the labor
organization.
3. It is an Industrial Dispute.
An industrial dispute or a labor dispute is also found in
Article 212 letter l which is now 219 letter l.
Article 219
(l.) “Labor dispute” includes any controversy or matter
concerning terms and conditions of employment or
association or representation of persons in negotiating,
fixing, maintaining, changing or arranging the terms and
conditions of employment or the association or
representation of persons in negotiating, fixing,
maintaining, changing or arranging the terms and
conditions of employment, regardless of whether the
disputants stand in the proximate relation of employer and
employee.
Very long definition. Two things are involved it is either:
a) terms or conditions of work or
b) the right to representation that must be what is
involved.
If it is not about terms and conditions or the right to self-
organization, it cannot be a labor dispute. Give an
example: nag strike ang kanang mga jeepney drivers dili
sila mag drive sa ilahang jeepney kay ngano man? Supak
kami sa pagtaas sa presyo sa langis! Dili man intawon na
terms or conditions of work. Mapugngan ba na sa
operator? Dili man intawon na nila mapugngan.
That is not terms and conditions of work so it cannot be a
subject of strike because there is no labor dispute. Ngano
gitawag man na ug strike? Because they do not know that.
Wala man na sila nakatuon sa Labor Code kamo na
nakatuon dili na siya strike. Because the cause is not a
labor dispute.
Let us bring it further, suppose there is in the CBA a
particular provision which is not a mandatory subject of
bargaining in other words not a term or condition of work
or the right of representation.
Let us say it is an option to buy. Management agrees that
for every disposal of company property or equipment or
business it shall grant to the union the right of first refusal
before it can dispose the same to third parties.
So, mamaligya ang employer mga karaang vehicles
ngadto na i-offer sa union naa man na sa CBA.
Q: Is that an economic provision?
Could be because it is reducible to peso value. Now, the
company sells it immediately to a sister corporation, it does
not even offer it to the union. Can the union file a notice of
strike because it is a flagrant and malicious refusal to
comply with an economic provision. If it cannot even be a
mandatory subject of bargaining how can it be terms and
conditions of work?
So, you cannot treat that a labor dispute that calls for a
strike because it is not a mandatory subject of bargaining.
It cannot be termed as ULP strike nor can it be termed as
an economic strike because what you are asking from
management is covered by some other protocol so it
cannot be a ground for strike.
So, there you have the three elements of strike: temporary
stoppage by concerted action of the employees as a
result of labor dispute.
Then Section 2 of PD 823 as amended by PD 849 has said
that the term strike shall comprise not only of concerted
work stoppages but also slowdowns.
Section 2 of PD 823
For purposes of this decree the term “strike” shall comprise
not only concerted work stoppages, but also slowdowns,
mass leaves, sitdowns, attempts to damage, destroy or
sabotage plant equipment and facilities, and similar
activities.
1. Slowdowns
Q: Unsa man ng slowdowns?
Supposed-to-be workers work slowly than they used to be.
Actually, workers reduce the output. So many times, when
workers concerted actions reduce output mao nay
timailhan na nag slowdown sila. Pero busy silang tanan
pero wala juy resulta. Mao man na ang slowdown that is
why the supervisors cannot urge you to work faster
because you are really working faster. But the effect is that
it is a slowdown because the output is not the usual output.
Less than the usual amount.
2. Mass leaves
And then you have mass leaves, normally what happens is
that they will make use of their emergency leave.
Tanan mu apply ug leave. Pero everybody will use their
leave thirty minutes before punching time mag file na
silang tanan…tanan na lang nay sakit. PD 849 says that if
there is stoppage of work because of mass leave that is a
strike.
3. Sit downs
Sit downs is one of the misused and abused words because
if you try to trace the history of labor relations in US, sit
downs are considered as strikes.
Q: What are sit downs? Mulingkod ka? Kasayon ra ana.
In Michigan that huge Ford car factory, there was a huge
sit-down strike daghag patay. No manager can enter.
Gisirhan nila. Nanlingkod sila didto pero andam sila. Nakig-
away sila. First wave of security guards repelled. Sunod
wave ay pusil naman ang dala so hapa-hapa na sila. Sit
down to siya kay gipahawa nila ang employer pero
daghag patay. Sit down strike. Naa puy usa ka strike dinhi.
File ug motion to produce the key so as to open the gates
because it was illegal to block the ingress and egress.
What the union did in this case is gi-welding niya ang gate
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sa gilid wala niya gi-lock pero gi-welding niya. Unsaon man
na nimo pagpangayo ug motion to produce key ana. So,
sit down sila didto walay trabaho kay dili man jud kasulod
ang mga customers.
4. Attempts to damage, destroy or sabotage
Intends to damage or prejudice or sabotage the facilities. If
there is destruction of property then you charge them
before the Labor Code, the penalty is small. So, you go
now to the Revised Penal Code kay mas dako man ang
sentensya. Instead of going to the Labor Code you go
there, kay kung ari ka sa Labor Code ULP lang na siya 6
months to, diri ka sa RPC kay depende na sa value sa
property.
September 13, 2017 (2nd hour)
The definition has 3 requisites for a valid strike but I would
like to propose that there is a fourth requisite. And that was
pronounced by the Supreme Court in PHILIPPINE
BLOOMING MILLS EMPLOYEES ORGANIZATION VS. PHILIPPINE
BLOOMING MILLS STEEL (51 SCRA 189, G.R. No. L-31195,
June 5, 1973).
Philippine Blooming Mills Employees Organization Vs.
Philippine Blooming Mills Steel
Facts: PBM Employees was a union that went on strike
against the management and the strike was eventually
settled. But before it was settled, there was a violent
incident that involved many injuries in the picket lines. The
union charged that management employed Pasay City
police members who were dressed in civilian clothes who
attacked the picket lines. Now, even after the dispute was
settled, the union still felt aggrieved in that the policemen
actually served the interest of the employer.
The union met and they decided to protest and marched
to Malacanang to make their grievances known that they
had been dealt brutally by the Pasay City police. When the
company heard that the union was going to go on mass
demonstration, that means that they would leave behind
their work, management requested that the union
leadership allow a skeletal force to remain and keep the
Bessemer converters going. Bessemer converter is the
processing of iron into steel. It has temperatures as high as
2000 degrees centigrade. It takes 3-4 days to bring the
temperature to 2000 degrees. If you bring the temperature
down, you also need 3-4 days to do that because it’s a
process.
Management says if you leave this behind, naturally the
temperature of these Bessemer converters will go down, it
will take 3 or 4 days, then you will take another 3 or 4 days
to bring it up, we will lose a week. So we are asking you to
leave a skeletal force to maintain the temperature of the
Bessemer converters. The union said they will meet and
decide whether we will give a skeletal force or we will not.
We have to choose who will remain. When the union met,
the decision was either all of us march to Malacanang or
nobody marches. And so they told that to management.
It’s all or nothing. We are going to march.
On the appointed day, they left their work and marched to
Malacanang. But the leaders of the union received notice.
“You are directed to explain why you should not be
dismissed for staging an illegal strike.” You are staging an
illegal strike, work stoppage. You went on demonstration
without provisions on work to continue.
After the summary investigation, the second notice came
out. All the union leaders were dismissed for staging an
illegal strike. The union leaders brought an illegal dismissal
complaint. The labor arbiter says, “You are rightfully
dismissed.” The employees appealed but then it was still
upheld by the NLRC.
Then they went to the Supreme Court. At that time, there
was still no Court of Appeals.This is one of the landmark
cases on civil rights.
Ruling: The SC characterized the issue to be settled by the
court in this manner:
On the one hand, you have the right of the workers as
citizens to peaceably assemble and to petition the
government for redress of grievance. That is what they did
by marching, to let the government know what grievance
they were feeling because of what the Pasay City police
did to them. That is a civil right. That is a constitutional right.
On the other hand, you have the right of the employer to
profits. If the workers left their workplaces, that means a
loss. No productivity not just for one day but for a week
because before you can raise back the temperature of the
Bessemer converter, you have to bring it down too quickly,
clean it up and then gradually raise it up to 2000 degrees
which is required for the process of making steel.
Who has the better right? A mere property right cannot be
heavier than a civil right especially the right to petition
peacefully for the redress of grievance occupies,
especially if this right holds the highest place in the
hierarchy of the rights that are listed in the Constitution (Bill
of Rights). Kana diay pagdemonstrate (the right to petition
the government for the redress of grievance), that’s one of
the highest rights according to the Supreme Court.
Is it not reasonable for the employers to require for a
skeletal force to remain? Anyway, it’s not preventing
everyone from marching. It’s just requiring to safeguard its
economic rights, some should be left behind to maintain
the Bessemer converters. Justice Makasiar (ponente)
quotes Justice Douglas of the US Supreme Court: These civil
rights enshrined in the Bill of Rights are such that nobody
should be excluded in the exercise of these rights. All
should be granted these rights. For as long as there is one
person who is unable to exercise his right, then everybody’s
right is infringed. In the words of Justice Douglas, “The
freedom of one is the freedom of all.” You cannot say, “Kini
ra sila allowed magmarch.” The union was correct when it
said, “Either all of us march or all of us march.”
The charge is illegal strike. Was there an illegal strike? There
was work stoppage. Second, it was done by the concerted
action of the workers. And third, there was a labor dispute.
The labor dispute was whether or not they can leave their
work so they can exercise their right to peaceably
assemble and the right to petition the government for
redress of grievance.
The SC said there is no strike because the work stoppage
was not intended. What was intended? To protest. And in
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order to protest, they have to leave work. How can that be
illegal? If the thing that you do is lawful and correct and is
in accordance with law, any side effect is not criminal or
culpable in nature.
Q: So what is the fourth element?
- The concerted action must be intended. Notice,
the workers here were not exercising a labor right.
They were exercising a civil right and in the course of
exercising their civil right, which is privileged in nature,
which is higher than the right to strike (which is merely
statutory), they caused the work stoppage. And that work
stoppage can be excused because the exercise of the
right to assemble peaceably and redress of grievance is a
privileged right.
We come to the cases of SCHOOL TEACHERS
ASSOCIATION, ET AL VS. LAGUIO, (200 SCRA 323, 1991) and
ASSOCIATION OF CONCERNED TEACHERS – MANILA
CHAPTER VS CARINO.
Association Of Concerned Teachers – Manila Chapter Vs
Carino
Facts: Carino was the Secretary of Education. Carino just
fired these teachers because they went and camped in
Malacanang because their wage adjustment in the
upward direction was already signed into law by the
President but was still not implemented. Tagaan sila ug
warning ni Carino kay ang ilang estudyante, student-
teachers ang gatudlo nila. Wala sila miingon na, “We are
exercising our right to petition the government for redress of
grievance.” Unsa man inyong grievance? This law that has
been enacted was not implemented.
The regular courts and CA: Affirmed the decision of Carino
dismissing the teachers for staging their demonstration.
The teachers were represented by the former UP Law Dean
Bacungan. His argument was the teachers were not on
strike. They were peaceably assembled to petition the
government for the redress of grievance. Ngano i-dismiss
man sila ni Carino na their complaint is legitimate. Naa na
ang law, gi-sign na. Nganong dili man na buhian ng ilang
increase? SC said that the argument would have been
correct if it is just one to three days, isa ka-bulan na man ng
mga teachers dinha na walay trabaho. Napasagdan na
nila ilang mga estudyante.
Ruling: The SC said there is as yet no law granting the
government employees the right to strike. That is what they
were doing. They went on strike for terms and conditions of
work. That is an illegal strike if you cause the work stoppage
against Civil Service Regulation, the Secretary of Education
was within his legitimate prerogative to dismiss you and
replace you with other teachers who will obey the Civil
Service Regulation.
What is the limit of this rule, to petition the government for
redress of grievance? Isa, duha ka-adlaw.
Cases
GSIS – President and General Manger (PGM) Winston
Garcia vs GSIS Union
Facts: The president of the union was called to be
investigated by the investigating committee by the board
of GSIS. The reason for this is these press releases and
conferences accusing the GSIS for being unfair in its
allocation of trading etc. He was accused of maligning the
GSIS and the PGM Winston Garcia.
On the day of the hearing, the former president of GSIS
labor union who was a lawyer, he left his work to be with
the president who is also a lawyer, to be his legal counsel
during the investigation because according to them in an
investigation under the GSIS law, you have the right to
bring counsel. The other leaders of the union left their work
to give moral support to the president who was under
investigation.
Unya daghan man kaayo sila. Murag gi-atake nila ang
Board didto sa GSIS headquarters. Nataranta ang Board.
Nanawag sila ug security guards.Pahawaon ng mga tao.
Dili man sila mupahawa kay duna man silay right. E di
nagkagubot didto. So Winston Garcia filed a case before
the Civil Service Commission of an illegal strike. There is
work stoppage because they --- their work.
Ruling: There is no strike. The stoppage of work was not
intended. It was a side effect. They exercised their right to
counsel. Right to be present in the investigation to make
sure that the investigation is regular and fair. And that is
also granted by the Civil Service Law. If you are under
investigation, you have the right to bring counsel. Labor
Code, mao man sad na. You must be investigated before
you can be dismissed or suspended. You have the right to
bring counsel of your own choice. If the counsel of your
own choice is also one of the employees, he must
necessarily leave his work. If there is a work stoppage that
occurs, it is unintended. It is a side effect. So the SC has
reaffirmed that there is this fourth element. You must intend
the strike. The work stoppage must be directly intended. It
is not a side effect.
Kiok Loy case:
They presented bargaining proposals. Wala man gyud
paminawa. Isa ka-bulan na, wala man gyud tubag. So
they gathered and went to management and asked for
the response of their bargaining proposals. The
management charged them of illegal strike because they
left their workplace.
The SC said there is no strike. If there was work stoppage, it
occurred because they exercised their right to demand
collective bargaining. The management must answer
within 10 days from receipt of those bargaining proposals
but they have not answered them. So the charge of work
stoppage is unavailing.
But remember one day, two days or three days, according
to the SC, musobra pa gani ka ana unya government
employee ka, wala na, ga-strike ka na, it is against the Civil
Service Law. Why? Because there are other third parties
involved. Students, the pupils, they have the right. You are
a public servant entrusted with public trust. Therefore, you
cannot put your terms and conditions of work higher than
your call.
The right to strike as erroneously called by the SC as a
constitutional right. It is not constitutional right in the same
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level as the Bill of Rights. It is constitutional only because
the Constitution mentions it. But it is still a policy requiring
implementing legislation. The Bill of Rights does not need
implementing legislation. In fact there is no legislation that
can wipe it out of the statute books. It is precisely put in the
Constitution so that it is beyond the reach of the plenary
powers of the legislature. It is a sacred space that protects
the individual citizen in the Philippines vis-à-vis the State
who can be so powerful and over-bearing as to erase the
dignity of the individual.
The right to strike is mentioned in Art. XIII, Sec. 3.
ARTICLE XIII Section 3. The State shall afford full protection
to labor, local and overseas, organized and unorganized,
and promote full employment and equality of employment
opportunities for all.
It shall guarantee the rights of all workers to self-
organization, collective bargaining and negotiations, and
peaceful concerted activities, including the right to strike in
accordance with law. They shall be entitled to security of
tenure, humane conditions of work, and a living wage.
They shall also participate in policy and decision-making
processes affecting their rights and benefits as may be
provided by law.
The State shall promote the principle of shared responsibility
between workers and employers and the preferential use
of voluntary modes in settling disputes, including
conciliation, and shall enforce their mutual compliance
therewith to foster industrial peace.
The State shall regulate the relations between workers and
employers, recognizing the right of labor to its just share in
the fruits of production and the right of enterprises to
reasonable returns to investments, and to expansion and
growth.
Right to self-organization, right to strike in accordance with
law. There is always that qualification.
Q: Can the Congress amend the right to strike so that it can
make it practically impossible to exist?
- Yes. It has done so already for several sectors of
employees like:
1. Hospitals. If you’re a hospital and the labor
dispute is not settled within 7 days, the DOH
Secretary can inform the Secretary of Labor and
the latter can assume jurisdiction of the labor
dispute and then you cannot go on strike.
2. Banks. That’s in General Banking Law. General
Banking Law says, if there’s a strike in the banks
and the Secretary of Labor knows of the strike, he
must assume jurisdiction. Once he assumes
jurisdiction, all strikes are enjoined.
Workers in the industries indispensable to the national
interest, the Secretary of Labor may assume jurisdiction or
certify the dispute to the NLRC. Once that is done, no more
strike. You cannot go on strike. There is a tremendous
weight of control on the part of the State to control strike
because a strike is inimical to the general peace and order
and welfare of the population. Therefore, the SC has that
this is only part of the Labor Code that is interpreted strictly
against labor in cases of doubt. All the conditions and
requisites for a strike are interpreted strictly against labor.
Paltos gani ka gamay, igo ka. Illegal imong strike.
COOLING OFF PERIOD for Strikes
1. 15 days for Unfair Labor Practice strikes
2. 30 days for Bargaining Deadlock strikes.
Paltos ka’g usa ka adlaw, sayo ra ka ni-strike. Wala ka
kahulat ug 15 days. 14 days ka. What did the SC say? Is
that negligible? SC says NO. This is interpreted strictly
against labor. The strike is illegal.
PICKET
We say a strike is statutory. How about picketing?
The right to picket is not the same as the right to strike. The
right to picket, kanang magdala ka ug placards. What is
strike? It is temporary stoppage of work.
Q: Mahimo bang maka-picket nga dili maka-strike?
- Yes. Three shifts mo. Nagtrabaho ning usa ka-shift,
pagkahuman sa ilang trabaho, pick-up dayon sila
sa ilahang placard. Suroy-suroy sila. Ang second
shift kumpleto, sige’g trabaho. Wala man
maundang ang trabaho.
Q: Is that (picketing), part of the right to strike?
- No, that is distinct. It flows from freedom of
speech. It is a privileged right.
Q: Can you have requisites that had to be complied with
before you can picket?
- No, because that is equivalent to curtailment of
freedom of speech.
You have rules on Censorship and Licensing before you
can express yourself. What did the SC say about these
rules? This is the exception to the general presumption of
regularity of all legislation. This is the only kind of legislation
that is presumed irregular. Any system of censorship or
licensing before you can be allowed to write and express
comes before this Court with a heavy burden of proving its
validity.
Picketing cannot be stopped. There cannot be a
condition. And it’s an individual right. It is not a right of the
collective. Suko ka sa imong amo, magsandwich card ka
dinha. Maglakaw-lakaw ka sa entrance. 20 years wala’y
increase. Unsa man na? Makakuha siya ug injunction? You
cannot be stopped. It’s part of freedom of speech. That is
not a strike. The Secretary of Labor cannot assume
jurisdiction over that because that is not a strike.
_____________________________________________
September 20, 2017
CJR Ceballos
PROCEDURAL REQUISITES OF A STRIKE.
We are already in the PROCEDURAL REQUISITES OF A
STRIKE.
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Tomorrow, Duterte has proclaimed it a Strike Day. It’s not
really a strike because you are protesting against
government. It’s more on the exercise of the civil right
peaceably to assemble and petition the government for
redress of grievance. This is the exercise tomorrow, which is
next to useless .
PROCEDURAL NEGATIVE REQUISITES OF A STRIKE
1. It must have not violated the duty to bargain
2. There must be no compulsory or voluntary
arbitration of the dispute that is the ground for
strike.
3. There must be no violation of the No-Strike
Clause.
What are the procedural negative requisites for a strike? It
must NOT be there.
1. It must have not violated the duty to bargain.
Article 278. Strikes, Picketing, and Lockouts—
a. It is the policy of the State to encourage
free trade unionism and free collective
bargaining.
A strike declared by the Union to enforce certain
economic demands without first having given
Management reasonable time and opportunity to act on
the request has been held premature and illegal
(INSURRECTO LABOR AND PROJECT WORKERS VS.
INSURRECTO, 95 Phil. 761; 1950).
So there has to be a lot of bargaining. That’s also
a well-known case where a certain supervisor got the ire of
the rank-and-file union because of his harsh way of
supervising. And they gave management an ultimatum. He
must be fired or we will go on strike. Management said,
“We have to investigate it because you cannot fire
anybody without first complying with what is required of the
Labor Code.” The union said, “We have already
investigated him and he deserves to be fired. If you will not
fire him, we will go on strike.” They went on strike. The SC
found that to be premature. Violation of the duty to
bargain.
2. There must be no compulsory or voluntary arbitration
of the dispute that is the ground for strike.
Example: Suppose management dismisses without
granting due process the president and other leaders of
the Union, the Labor Code gives the union the privilege of
striking immediately without need of observing the so-
called Cooling-off Period, but you have to still file a Strike
Notice.
But if those who were fired—on their own they
filed an illegal dismissal complaint with the labor arbiter,
then that issue is already submitted to compulsory
arbitration. You cannot go on strike on that issue because it
is before the courts. You would be making a mockery of
the labor justice system if you conduct a strike because the
employer is no longer at liberty to grant your request. It has
to wait for the decision of the compulsory arbitrator. That is
why it is important that those who are dismissed, even if
they are leaders, they don’t file an illegal dismissal case. Or
you might have voluntary arbitration on the same dispute.
That dispute cannot be a ground for calling a strike.
But let me tell you that each dismissal is a ground
for strike. You might dismiss a leader, but the leader files an
illegal dismissal complaint, you cannot strike on that illegal
dismissal. Subsequently, another person, member of the
union, is dismissed. And you say that is unfair labor practice
because he is dismissed due to his union activities. Now if
the 2nd dismissal, no illegal dismissal case is filed, then that
can be a ground for strike because each dismissal is a legal
dispute. Mura nag sa criminal law bah, na different counts
of estafa.
3. There must be no violation of the No-Strike Clause.
Remember I told you in Collective Bargaining, the
No-Strike Clause is designed by the Dept. of Labor. And
they will normally suggest if you submit a CBA without a No-
Strike, No-Lockout Clause, they will return it and say you
add a No-Strike, No-Lockout Clause.
Q: Now, what does a No-Strike Clause cover?
- SC says, A No-Strike Clause covers only economic
strikes. It does not cover ULP strikes.
- Why?
Because if it did, then a No-Strike Clause would
actually be an open-ended permission to
management to commit all kinds of unfair labor
practice, because the union cannot go on strike
on the basis of ULP.
- So a No-Strike Clause prevents, obviates, right
away economic strikes. But it cannot stop ULP
strikes.
- ULP strikes are not covered by a No-Strike Clause.
Once again let me remind you, if there is a schism—the
exclusive bargaining agent (EBA) is replaced because the
Local disaffiliates with the Federation and is now affiliated
with another Federation, this new Federation takes the
place of the old one. This new EBA-Federation is not
covered by the No-Strike Clause. Why? Because a No-Strike
Clause is personal to the union. That’s what the SC says. It is
an obligation on the part of the union substituted.
Which tells you that, somehow for the Supreme
Court, the right to strike is located with the union—with the
separate and distinct personality—not with the collectivity
of people, as far as that decision is concerned. So No-Strike
Clause does not cover the substitute EBA under the
Benguet Mining Doctrine.
Let us go now to POSITIVE procedural requisites.
POSITIVE PROCEDURAL REQUISITES OF A STRIKE
1. You must file a Strike Notice
2. Cooling-Off Period (15 days for ULP strike, 30
days for deadlock strike)
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3. There must be a strike vote by secret ballot
4. 7-day Waiting Period
5. Continuing the compliance with the duty to
conciliate and mediate under the auspices
of the NCMB
----------------------------
1. You must file a Strike Notice.
First, you have a Strike Notice. The SC has put new
requirements on what a Strike Notice, as demanded by
Department of Labor, should contain. Otherwise, it is no
notice at all.
Q: What should be the contents and form of a Notice of
Strike?
- Remember a Strike Notice varies according to the
ground for the strike.
a) If the ground for the strike is deadlock, it is an
economic strike:
1. Then you have to submit a copy, attached
to the strike notice, of all the bargaining
proposals.
2. Then you have to submit a copy of the
running minutes of the negotiation. Which of
the different proposals has been agreed
upon, which has not yet been touched
upon, and where exactly is the deadlock.
You have to point that out in your strike
notice.
3. And a strike notice has to be signed by the
officers of the union. This is emphasized by
the SC in the case of MAGDALAM
MULTIPURPOSE AND LIVELIHOOD COOP VS.
KILOSAN NG MGA MANGGAGAWA NG LGS,
659 SCRA 768; 2011 case.
4. The formal requirements of submitting a
strike under oath, and then
5. it is verified, has also been pointed out by
the SC as necessary, and must be complied
with.
Q: What is the effect if these formal requisites are not met?
- The effect is, it is as if no notice of strike has been
filed.
Remember, all these requirements are to be strictly
interpreted against the union, against Labor. Because it is
disruptive of the general peace and order of society. That
is why it is not liberally interpreted in favor of union in case
of doubt. It is, in cases of doubt, interpreted against
Labor—the big “L”, dili tong katong pobre nga laborer—
against the union.
Q: If you fail to give a copy of the strike notice to the
employer, what is the effect?
- According to Magdala Multipurpose, and
according to Judge Cañete, it is also fatal.
Makamatay. Dead bull. It is as if no notice has
been filed.
Even under the amended Book V of the Labor
Code, the employer is not considered party to a
certification election etc., [but] he has a right to a copy of
the petition. So also with a notice of strike. The employer
must be served first with the notice of strike. And then the
copy, which must have been signed by the employer, is
what is filed with the Department of Labor. So that the
Department of Labor is apprised as to the service of copy
of the notice of strike to the employer.
Q: Where should the notice of strike be filed?
- Under the primer of the Labor Code, the notice of
strike is supposed to be filed with the Board
[National Conciliation and Mediation Board].
- According to the Labor Code, the notice of strike
is supposed to be filed with the Ministry, now
Department of Labor.
- Which is correct? It should be filed with the
Ministry because the NCMB cannot testify in any
court or any forum as to whether or not the notice
is adequate in substance or in form. They are
prohibited from testifying. It should be filed with
the Ministry, and the Ministry informs them, so they
can begin to conciliate and mediate. The whole
idea why the Dept. of Labor, in their primer on
strike, wants the notice of strike to be filed with the
Board so that the Board can immediately act.
Now there is a Philippine Airlines case, which says that
because the Board reclassified a notice of strike as only for
preventive mediation and not for cooling-off period
conciliation, the SC said there is no ground for strike.
Now question, how did the SC get that? Did the Board
testify? It was alleged in the position paper of the
management, and the union failed to object. So it was not
the Board who testified, because if it did, then it would be
contrary to the Labor Code. What you say, present, or
submit with NCMB is privileged. It can never be used in any
forum for any purpose. So that ruling is obiter. Nasipyat ang
abogado sa union. [Note: He talks about experienced
unionista nga tig prepare sa mga position papers until the
case reaches the CA and SC and finds a lawyer who will
sign it. They can argue very well but they have no idea as
to procedure, what is admissible, what is not admissible.]
b) If you were to file a strike notice and the
ground for strike is ULP
1. Then according to the SC, in the
MAGDALAM ruling, you must describe
how the ULP is committed.
Q: How do you describe it?
- The description is according to the acts or
omissions that constitute ULP. The acts or omission.
This description must be adequate in form and
substance. [Note: Then he likens it to how
sufficiency of an Information is determined: the
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acts alleged to have been committed and not
the label of the case filed].
Economic strike and unfair labor practice strike, layo kaayo
na. One can never be contained with the other. How can
you say that the strike notice for ULP strike contains the
material requirements for an economic strike? You cannot.
It’s so different. Mubo rani [referring to ULP strike]. Ang
economic strike, taas! Daghang attachments required.
Sometimes they even require a certification from the
Department of Labor that the NCMB and number of
sessions it has intervened and that there has been no
success. That’s the only time. Otherwise, you would still
continue with the conciliation and mediation before you
can file a strike notice due to deadlock.
2. Observance of the Cooling – Off Period:
- 15 days for ULP strike
- 30 days for deadlock strike
Q: What are those “days,” calendar days or working days?
- Calendar days. If the 15th day falls on a
holiday, then the next working day is the end
of the cooling-off period.
Q: What is the purpose of the cooling-off period?
- The purpose is to give you a last chance for
conciliation and mediation. Double time na
ana ang mediator and conciliator sa NCMB.
[Take note: Then story about why luoy ang
mga mediator and conciliators—because
both parties suspect them, and they get
ulcers because of their stressful job ]
Do you have a duty to appear in conciliation and
mediation? Yes, you have a duty to appear. Now what
happens if you do not appear? Violation of the duty to
bargain before striking! That is the result. Who will testify?
The NCMB will say, “He did not appear”? No, the NCMB
cannot do it. So the NCMB will try its very best to bring the
parties together.
Suppose the dispute is so heated that the parties
cannot stand each other anymore, magsinumbagay na
sila, what happens? Then the NCMB shall have what they
call a Shuttle Conciliation. You will meet in a building, and
the parties are at the opposite ends of the room. Ang
NCMB maoy mag shuttle back and forth between parties.
That’s very heroic.
The best job for mediator/conciliator is sports legal
dispute sa USA bah, mag strike ang NBA. Because they
have a standing rule: The first offer is the last offer. Mao na
gyud na. Aron di madugay. [Note: Then he talks more
about the recent strike in the NBA on the 60-40 profit
sharing between players and team owners]. Di man
mahimong di muhangyo ning Pinoy.
3. There must be a Strike Vote.
[No strike or lockout vote] without notice first
having been obtained and reported to the Ministry. You
inform management and also the Dept. of Labor that you
are going to make a strike vote, 24 hours before you take
the strike vote.
Q: Why 24 hours?
- To give a chance to the Department of
Labor to either:
(1) supervise the taking of the strike vote or
(2) to observe the conduct of the strike vote.
If you do not inform the Dept. of Labor? It is
as if no strike vote has been taken. And then
your strike is illegal. That is a prohibited
activity, going on a strike without a strike
vote.
A decision to declare a strike under Article 278 (f):
Art. 278 (f). A decision to declare a strike must be approved
by a majority of the total union membership in the
bargaining unit concerned, obtained by secret ballot in
meetings or referenda called for that purpose. A decision
to declare a lockout must be approved by a majority of
the board of directors of the corporation or association or
of the partners in a partnership, obtained by secret ballot in
a meeting called for that purpose. The decision shall be
valid for the duration of the dispute base don substantially
the same grounds considered when the strike or lockout
vote was taken. The Ministry [the Department of Labor, not
the NCMB as what is stated in the primer!] may, at its own
initiative or upon the request of any affected party,
supervise the conduct of the secret balloting. In every
case, the union or the employer shall furnish the Ministry the
results of the voting at least seven days before the
intended strike or lockout, subject to the cooling-off period
herein provided.
Q: “Total union membership” What does that mean?
- Absolute majority.
- If there are 100 members of the union, 50% +
1 must vote. 50% + 1 is also the quorum for a
meeting of a union. But if 50%+1 is present in
the meeting, then all of them must vote to go
to strike. Otherwise, the strike vote did not
pass, because the majority needed is
majority of the total union membership in the
bargaining unit concerned.
- So once again it tells us that the law is
pointing to the union as the one who has the
right to strike. It’s not the bargaining unit.
It is assumed that most in the BU are members of the union,
but it need not be. If the majority in the BU are not
members of the union, it will turn out that a minority of the
bargaining unit declares a strike. That is why, that is in favor
of the theory that the right to strike should be in the
collectivity of workers, not in the union that has a separate
and distinct personality for representation of the bargaining
unit. I am talking about Art. 278 (f).
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So after the taking of the strike vote, there is again what is
called a
4. Observe the Waiting Period
Q: What is that waiting period?
- 7 days from submission to the Department of
Labor and to the employer.
- The purpose of the waiting period is to grant
any union member the opportunity to
complain as to any irregularity that might
have occurred in the taking of the strike vote.
It is no longer for conciliation and mediation.
That is for the cooling-off period.
Now so that you will remember the strike vote, we
will contrast it with the Improved Offer Balloting, which is
Art. 280.
Art. 280. Improved Offer Balloting -- In an effort to settle a
strike, the Department of Labor and Employment shall
conduct a referendum by secret balloting on the improved
offer of the employer on or before the 30th day of the strike.
When at least a majority of the union members vote to
accept the improved offer, the striking worker shall
immediately return to work and the employer shall
thereupon readmit them upon the signing of the
agreement.
Q: What is the majority required in an improved offer
balloting?
- When at least a majority of the union
members vote—that is Simple Majority. That is
not absolute majority. To go on strike, you
need absolute majority.
Sometimes an improved-offer balloting is held at
the picket lines. Dili na present ang kadaghanan sa union.
Manginhas na na sila kay kulob nang kaldero. Unsa may
imong lung-agon nga wa man kay sweldo. So nag iyahay
na na’g panlakaw. So the law does not require anymore
an absolute majority. The majority of the quorum present is
enough. Then the improved offer of the employer is
accepted.
Strike vote Absolute majority
Improved Offer Balloting Simple majority
Now decided cases on Cooling-off Period:
There are many cases wherein the union goes on
strike 1 day short of the cooling-off period. SC says that is
material. The strike is illegal.
COCA-COLA BOTTLERS PHILS. INC VS. NLRC
(1998 case).
“Accordingly, since the strike vote was conducted and
submitted to the DOLE on April 14, 1987, the 7th day fell on
April 21, 1987. Since there is no dispute that the union struck
on April 20, 1987, only the 6th day since the submission of
the strike vote, the strike was patently illegal.”
Q: Can we not give the benefit of the doubt to the union?
- No. The requirements of a strike are
interpreted strictly against the union.
Again, the purpose of the 7-day waiting period:
“The submission of the report gives assurance that
a strike vote has been taken, and that if the
report concerning it is false, the majority of the
members can take appropriate remedy before it
is too late.
If the purpose of the required strike notice and
strike vote report are to be achieved, the periods
prescribed for their attainment must be deemed
mandatory.
That is the ruling in NFSW VS. OVEJERA, 114 SCRA
354 (1982), subsequently reiterated in LA PANDAY WORKERS
UNION VS. NLRC (199--).
Now suppose,
1. The strike vote was conducted within the
cooling-off period; AND
2. the 7-day waiting period after the report is
submitted to DOLE is completed within the
cooling period,
Q: Do you still wait 7 days more after the end of the
cooling-off period before going to strike? In other words,
Can the waiting period coincide with the cooling-off
period?
- The DOLE in the primer on strikes says that the
waiting period is always in addition to the
cooling-off period. It cannot be coincide with
the cooling-off period in whole or in part.
- But the SC in the decision of NSFW VS.
OVEJERA said that the waiting period can
be, in part or in whole, coincided with the
cooling off period.
So if you are ever asked, you can answer that
way, or you can answer straight from the primer of the
DOLE. But the DOLE really wants the overall time to be
stretched because as much as possible it wants to avoid a
strike. So the longer the time it takes to strike, the more
leeway they have to exploit mediation, conciliation,
injunction, or with the Secretary to take over the labor
dispute.
After the waiting period, the fifth positive procedural
requisite is:
5. Continuing the compliance with the duty to
conciliate and mediate under the auspices of the
NCMB
So, even when the strike is already in progress,
there may still be the NCMB calling for mediation and
conciliation. And you still have the duty to comply and
mediate and conciliate. That is what the law says should
be one of the last procedural positive requisites of a strike.
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Now, certain “knots and ends” [Note: Huhu Sorry I can’t
hear it clearly] about the strike.
Q: How long is a strike notice valid?
- The strike notice is valid according to Article
278 (f):
“The decision shall be valid for the duration of the dispute
based on substantially the same grounds considered when
the strike or lockout vote was taken.”
So pagkahuman sa waiting period, you have the
obligation to strike immediately the following day. But you
can postpone it. You can still withhold going on strike if you
believe there is still hope for conciliation and mediation.
Q: For how long can you postpone?
- For as long as the ground for the strike is still
obtaining.
Q: What does the strike do to the status of the employee as
employee of the employer’s company? Is employer-
employee relationship suspended? Are they still
employees while they are on strike?
- A strike is a right as an employee, so you
continue to be an employee. A strike does
not change the relationship of the employer
and employee.
That is why if after a strike has been in progress for
several days and the union sends notice to the employer
that they are lifting picket lines and returning to work
unconditionally, then management cannot turn away the
workers. If the employer does that, that is an illegal lockout
because the employer has to follow the same requisites as
the strike if it locks out.
[See Codal for the specifics]
1. It has to send a notice of lockout to the DOLE
and the union.
2. Then it has to go through the cooling-off
period.
3. Then it has to have a lockout vote.
So if the employer just says, “No more! We are not
accepting you back to work,” he is ending the employer-
employee relationship, which is illegal.
What is the effect of downgrading of the NCMB of a notice
of strike to a category of preventive mediation? This is the
PAL case, and as I said, it is a very rare case because the
union’s counsel failed to object when management used
inadmissible evidence from the NCMB.
Q: What is this so-called Privilege of Good Faith Error?
- It is exemplified in PNOC DOCKYARD VS.
NLRC, 291 SCRA 231 (1998):
PNOC DOCKYARD VS. NLRC
291 SCRA 231 (1998)
“A strike is valid if the strikers believed in good faith
that the act of the employer constitutes unfair labor
practice although it was not and that the strike was
necessary in order to arrest the evil effects of the said
ULP act upon the union and its members.”
Presidente mani sa union, gi dismiss sa
employer after so-called “hasty investigation.” And he
was the one pushing to file for a notice of strike
because the employer was bringing in non-union
members as dock workers. Hinay-hinay naman sila’g
kawala, so gusto sa presidente mapatalsik to sila. Kay
ngano man diay? Kay kaning president was already
acting as cabo. Kanang cabo, mangolekta og part of
the wages of those who are illiterate. Naa siyay mga
tao di kabalo mubasa, siya’y muihap sa sweldo,
dayon kuhaan niya’g gamay aron sigurado silang
makabalik sa trabaho. That’s illegal. That is acting as a
cabo. He was investigated, and he was terminated.
The union members really thought he was
terminated because he was militant against the
employers, so they went on strike. After a while, it
became clear that he was really at fault, he
committed acts that were valid grounds for dismissing
him.
Now what is the effect?
The SC said, privilege of good faith error! Kasagaran
ani illiterate man. Dockworkers, kina-mub-an man
gyud nang klaseha sa trabaho. Pareha ra na sa mga
construction. Li-og ra nimoy capital ana, alsa-alsa,
kalot-kalot. Purnal, unskilled. So that kind of work lends
itself to abuse. Pag ingon ana’g, “Kita, murag gi
abusuhan ta! O, di strike!” Unya di diay tinuod.
If by the unbiased eye, it could possibly be interpreted
that the employer has committed ULP even though he
was not, that is the only requirement to qualify it as a
privilege of good faith error. Nasayop ko pag tuo nga
ULP to, dili diay to ULP.
The SC is saying, “If there is a chance that it can be
interpreted as ULP, then the ordinary worker is
protected. He is not deemed to have engaged in an
illegal strike.”
Q: May strikers be held liable for libel for derogatory
accusations in placards and flyers?
- This is the story of PCIB VS. PHILTOWN BANK
EMPLOYEES ASSOCIATION (1998).
PCIB VS. PHILTOWN BANK EMPLOYEES ASSOCIATION
(1998)
Philippine National Bank employees went on strike.
Ilang plackard nag ingon, “PCIB bad accounts
transferred to PNB-NIDC.” Philippine National Bank-
National Investment and Development Corp. (NIDC)
was the investment bank arm of the PNB and it was
created under the Corporation Code. PNB was before
a GOCC.
Nag strike sila. Kinsa ma’y nasuko? Ang PCI Bank! Gi-
kiha ang union sa PNB-NIDC—that you have maligned
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PCI Bank. That you have put PCI Bank in danger of a
bank run because you are propagating these false
news that we have bad accounts which we passed
over to PNB-NIDC.
The lower court ruled against PCI Bank. There is no
propagation here, there is no libel.
Court of Appeals, pildi sila, saka lang gihapon.
The SC said nobody takes placards seriously.
Everybody looks at placards and takes it with a grain
of salt. It is privileged communication. The SC says,
“You do not expect from sailors genteel language of
gentlemen and statesmen.”
Kung mga marinero nah, ang sinultihan ana, katong
sinultihan sa pier, dili tong statesmen, sa mga huwes.
So also with placards, you do not expect genteel
language. So there is no libel.
[Note: Story about the Nixon Watergate scandal
poster showing a pregnant Girl Scout, with the caption:
“Nixon’s the one.” The Girl Scout of the America sued the
poster maker for libel.] The US Supreme Court said this
poster is clearly a caricature. Nobody takes it seriously. The
Girl Scout of America’s reputation is beyond impunity. It is
so wholesome that you cannot possibly malign the Girl
Scouts of America by a simple poster.
The conclusion is that poster language is a strike is
given a lot of leeway. Precisely because of the emotional
context of a strike. Each party has reached the ends of
their persuasive powers. So siniggitay namo dinha.
Even violence is expected to occur. And yet
Congress gave the right to go on strike. It is still accepted
as a legitimate way to settle dispute. Withholding labor or
withholding work on the part of the employer when the
employer goes on lockout, that is still considered as
legitimate. Even if there is a strong possibility that there will
be violence, recriminations, or libelous statements that
could be spoken if the situation were otherwise.
Q: Are strikers entitled to strike-duration pay? Kung correct
sila that they have been at the losing end of unfair labor
practice, and they cannot go to work because they were
on strike, Are they entitled to strike-duration pay?
- The decided case here is J.P. HEILBRONN CO.
VS. NATIONAL LABOR UNION, 92 PHIL 575
(1953).
- If you are a striking worker, you are not
entitled to strike-duration pay. What you are
doing is your right. The employer is also
resisting because he is not obliged to grant
that which you are asking, so he is also right.
If both of you are correct, then the law will
leave you where you are; each of you
absorbs your own loss. The employer, he loses
his profits.
- If you are an innocent worker, you are not a
member of the striking union and you want to
go to work but you cannot go to work
because there are picket lines, are you
entitled to strike-duration pay? SC says, you
are also not entitled to strike duration pay
because these two [the strikers and the
employer] are exercising their rights. If the
parties are exercising their rights, you are an
accepted collateral damage. The law will
leave you where you are to absorb your own
loss.
However, I want to refer you to DAVAO FREE
WORKERS VS. CIR, 60 SCRA 408. That is a very famous case.
That happened here in Sasa, and the lawyers of the
stevedoring company was headed by Jose Diokno. Who
was the lawyer of the unions? He was former Deputy
Ombudsman Atty. Nitorreda, and he beat Diokno in this
case. One of the few records we have of Diokno defeated
by a local boy. So many people died, so much violence.
And the SC said, for the brazen ULP acts
committed by the employer, as a penalty, as a punitive
damage, the employer was made to pay the wages of
the workers for the duration of the strike. An exception, as a
punitive damage! So if you want to read that case, that’s
an example of the exception.
September 27, 2017
What is an illegal strike? It is a strike without fulfilling one or
combination of those requisites provided for by the law.
There are positive, negative, procedural, and substantive
requisites. If you fail to comply with one, you are already in
illegal strike. The requirements are strictly interpreted
because at stake is the general welfare clause. The society
is disturbed by the strike. So, it is one of the provisions of
Labor Law that is interpreted strictly, in cases of doubt, in
favour of the general public and not in favour of labor.
ILLEGAL STRIKE AND STRIKE THAT CONSTITUTES A PROHIBITED
ACTIVITY; DIFERENCE
During a strike, there can be prohibited activities. The
commission of these activities does not normal makes the
strike illegal. There are certain prohibited activities which
will not make the strike illegal, unless those are requisites, for
instance:
1. Striking without first bargaining
2. Striking without first filing a notice of strike
3. Striking without conducting a strike vote
4. Striking after assumption of jurisdiction or
certification of the dispute by the Secretary
(Article 278, paragraph 1)
5. Obstructing picket lines
6. Escorting those who will replace striking workers
(Article 278d)
These does not makes the strike illegal but it makes it a
prohibited activity which is worse than an illegal strike
because in the latter, all those officers who participated
and assented to the illegal strike lose their employment
status. The ordinary union member who participated in the
strike cannot be terminated. But, all those who
participated in a prohibited activity strike - a strike carried
out no matter whether it complies with all the requisites
provided by law and after the Secretary of DOLE has
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assumed jurisdiction over the dispute, all those who
participated in the strike, whether you are a officer or an
ordinary union member, will lose their employment status.
When does the Secretary assume? When he issues an
assumption of jurisdiction order, or when he certifies the
dispute to the NLRC.
Art. 264. Prohibited activities.
1. No labor organization or employer
shall declare a strike or lockout
without first having bargained
collectively in accordance with Title
VII of this Book or without first having
filed the notice required in the
preceding Article or without the
necessary strike or lockout vote first
having been obtained and reported
to the Ministry.
No strike or lockout shall be declared
after assumption of jurisdiction by the
President or the Minister or after
certification or submission of the
dispute to compulsory or voluntary
arbitration or during the pendency of
cases involving the same grounds for
the strike or lockout.
Any worker whose employment has
been terminated as a consequence
of any unlawful lockout shall be
entitled to reinstatement with full
backwages. Any union officer who
knowingly participates in an illegal
strike and any worker or union officer
who knowingly participates in the
commission of illegal acts during a
strike may be declared to have lost
his employment status: Provided, That
mere participation of a worker in a
lawful strike shall not constitute
sufficient ground for termination of his
employment, even if a replacement
had been hired by the employer
during such lawful strike.
2. No person shall obstruct, impede, or
interfere with, by force, violence,
coercion, threats or intimidation, any
peaceful picketing by employees
during any labor controversy or in the
exercise of the right to self-
organization or collective bargaining,
or shall aid or abet such obstruction
or interference.
3. No employer shall use or employ any
strike-breaker, nor shall any person be
employed as a strike-breaker.
4. No public official or employee,
including officers and personnel of
the New Armed Forces of the
Philippines or the Integrated National
Police, or armed person, shall bring in,
introduce or escort in any manner,
any individual who seeks to replace
strikers in entering or leaving the
premises of a strike area, or work in
place of the strikers. The police force
shall keep out of the picket lines
unless actual violence or other
criminal acts occur therein: Provided,
That nothing herein shall be
interpreted to prevent any public
officer from taking any measure
necessary to maintain peace and
order, protect life and property,
and/or enforce the law and legal
order. (As amended by Executive
Order No. 111, December 24, 1986)
5. No person engaged in picketing shall
commit any act of violence,
coercion or intimidation or obstruct
the free ingress to or egress from the
employer’s premises for lawful
purposes, or obstruct public
thoroughfares. (As amended by
Batas Pambansa Bilang 227, June 1,
1982)
OBSTRUCTING PICKET LINES
Obstructing or impeding picket lines of strikers (Article 278
b) - that is a prohibited activity. Gubuton nimo ba ang
picket lines. We will later on see that prohibited acts can
be subject of criminal prosecutions under the Labor Code.
It could be a fine and/or imprisonment.
No person shall obstruct, impede, or
interfere with, by force, violence, coercion,
threats or intimidation, any peaceful
picketing by employees during any labor
controversy or in the exercise of the right to
self-organization or collective bargaining,
or shall aid or abet such obstruction or
interference.
What is a strike breaker? He is the one who breaks the
picket lines.
"Strike-breaker" means any person who
obstructs, impedes, or interferes with by
force, violence, coercion, threats, or
intimidation any peaceful picketing
affecting wages, hours or conditions of
work or in the exercise of the right of self-
organization or collective bargaining.
Picket lines are the strikers themselves and some supporters
who walk back and forth at the entrance or egress of the
employer to apprise the public as to their issues. Magdala
na sila ug placard. Marcha-marcha sila. There are no
prohibition for strikers to employ supporters.
Can they just stand there? No, they cannot stand! That is
a public place – the side walk. As you know very well, that
is re nullius. It is owned by no one, yet it is accessible to
everyone. You can use it as long as you are walking. That
is a pedestrian walk. That is why the strikers must walk. Di
sila mupabilin dinha kay mutindog na gani ka, yoy are
obstructing already. Daghan gud mo kaayo.
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So, a picket must necessarily be a moving picket. Kana
ang pirmente wala masabti sa mga strikers. Kay kung naa
gani strike, butangan dayon nila ug pisi unya musulod
dayon ang mga hinayhay. Unya, sunod ana wala na!
Gadung-ag na sila, galuto na sila dinha. Aso-aso na.
Kadtong mulabay, mukaon. Makasimhot na sa chorizo.
(Hahaha!) That is prohibited activity – blocking the ingress
or egress of the employer’s premises.
How do you remedy that? You do not file a complaint for
illegal strike because that does not make the strike illegal.
That is an isolated experience. Instead, you go to the NLRC
and file an injunction.
Art. 217. Jurisdiction of the Labor Arbiters
and the Commission.
Xxx
5. Cases arising from any violation of Article
264 of this Code, including questions
involving the legality of strikes and lockouts;
and
Why can you not go to the LA? Under Article 219, the
Labor Arbiter has the jurisdiction to declare a strike legal or
illegal. The LA does not have the power to issue an
injunction. You might be able to file an illegal strike
complaint with the LA, but when you want an injunctive
order, you have to go to the NLRC.
Art. 225. Powers of the Commission. The
Commission (NLRC) shall have the power
and authority:
e. To enjoin or restrain any actual or
threatened commission of any or all
prohibited or unlawful acts or to
require the performance of a
particular act in any labor dispute
which, if not restrained or performed
forthwith, may cause grave or
irreparable damage to any party or
render ineffectual any decision in
favor of such party: Provided, That no
temporary or permanent injunction in
any case involving or growing out of
a labor dispute as defined in this
Code shall be issued except after
hearing the testimony of witnesses,
with opportunity for cross-
examination, in support of the
allegations of a complaint made
under oath, and testimony in
opposition thereto, if offered, and
only after a finding of fact by the
Commission, to the effect:
1. That prohibited or unlawful acts have
been threatened and will be
committed and will be continued
unless restrained, but no injunction or
temporary restraining order shall be
issued on account of any threat,
prohibited or unlawful act, except
against the person or persons,
association or organization making
the threat or committing the
prohibited or unlawful act or actually
authorizing or ratifying the same after
actual knowledge thereof;
2. That substantial and irreparable injury
to complainant’s property will follow;
3. That as to each item of relief to be
granted, greater injury will be inflicted
upon complainant by the denial of
relief than will be inflicted upon
defendants by the granting of relief;
4. That complainant has no adequate
remedy at law; and
5. That the public officers charged with
the duty to protect complainant’s
property are unable or unwilling to
furnish adequate protection.
Such hearing shall be held after due and
personal notice thereof has been served, in
such manner as the Commission shall
direct, to all known persons against whom
relief is sought, and also to the Chief
Executive and other public officials of the
province or city within which the unlawful
acts have been threatened or committed,
charged with the duty to protect
complainant’s property: Provided,
however, that if a complainant shall also
allege that, unless a temporary restraining
order shall be issued without notice, a
substantial and irreparable injury to
complainant’s property will be
unavoidable, such a temporary restraining
order may be issued upon testimony under
oath, sufficient, if sustained, to justify the
Commission in issuing a temporary
injunction upon hearing after notice. Such
a temporary restraining order shall be
effective for no longer than twenty (20)
days and shall become void at the
expiration of said twenty (20) days. No such
temporary restraining order or temporary
injunction shall be issued except on
condition that complainant shall first file an
undertaking with adequate security in an
amount to be fixed by the Commission
sufficient to recompense those enjoined for
any loss, expense or damage caused by
the improvident or erroneous issuance of
such order or injunction, including all
reasonable costs, together with a
reasonable attorney’s fee, and expense of
defense against the order or against the
granting of any injunctive relief sought in
the same proceeding and subsequently
denied by the Commission.
The undertaking herein mentioned shall be
understood to constitute an agreement
entered into by the complainant and the
surety upon which an order may be
rendered in the same suit or proceeding
against said complainant and surety, upon
a hearing to assess damages, of which
hearing, complainant and surety shall have
reasonable notice, the said complainant
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and surety submitting themselves to the
jurisdiction of the Commission for that
purpose. But nothing herein contained shall
deprive any party having a claim or cause
of action under or upon such undertaking
from electing to pursue his ordinary remedy
by suit at law or in equity: Provided, further,
That the reception of evidence for the
application of a writ of injunction may be
delegated by the Commission to any of its
Labor Arbiters who shall conduct such
hearings in such places as he may
determine to be accessible to the parties
and their witnesses and shall submit
thereafter his recommendation to the
Commission. (As amended by Section 10,
Republic Act No. 6715, March 21, 1989)
The NLRC has the power to enjoin or restrain any actual or
threatened commission of any or all prohibited or unlawful
acts or to require the performance of a particular act in
any labor dispute in which, if not restrained or performed
forthwith, may cause grave or irreparable damage to any
party or render ineffectual any decision in favor of such
party.
So, file ka ug complaint of injunction with urgent motion or
TRO. Techncially speaking, the NLRC can issue a TRO ex-
parte – without hearing the other party. But in a labor
case, that is a no-no. the NLRC will always want to hear
the side of the parties before it issues a restraining order.
What will you attach to the urgent motion for TRO? You
attach the affidavit of your witnesses. Then, you produce a
video or photo of the status of the gate and present that to
the NLRC. The Commission will issue summons to the Labor
Union together with the copy of the urgent motion and
complaint for injunction.
What will the Labor Union do? Magtawag dayon na sila ug
press-conference – tawgon na nila ang media. Tang-tang
ang mga hinayhay, ang mga barricades tapos marcha-
marcha dayon sila. Ang media dayon kay ABS-CBN. Then
they will report and interview the members. Unya, ipakita
dayon nila nga ga lakaw-lakaw sila. Pag-abot didto sa
Commission, muingon dayon ang Labor Union – “Oh, here
is our evidence. There is no blocking the ingress or egress
of the employer’s entrance. We are moving! And our
evidence is from a disinterested party. The evidence of the
employer is self-serving.” Mao na kasagaran kontrahon
nila. Sultian na ta mo nga daan.
Then, the NLRC will decide whether it will issue an order.
Normally, the NLRC will decide to issue an order because
that it also prohibited by law.
Henceforth, parties are enjoined to keep free the
entrance of ingress and egress to and from the
employer’s premises. The union is hereby
forewarned that any blocking, impeding, or
threatening parties who shall enter the premises of
the employer, will be dealt with in accordance
with the Labor Code provisions against blocking
the ingress and egress of the employer’s premises.
Future na ni, di na past act. Unya pagkahuman ana,
mubalik nasad gihapon na! So, ang mahitabo ana kung
mubalik, it’s an indication of a higher degree of violence.
The employer will say – “Magdala ta ug van! Unya
musulod ta ngadto kay naa i-deliver nga supplies.” So
silbato-silbato. Unya kay sirado man na ang van unya ang
strikers muingon na – “Ngano man na? Unsa ma’y sulod
ana?” Mga scabs! Scabs are those who will take over the
striker’s place at the work place. Pulihan na sila ba!
Are scabs prohibited? They are not prohibited in the Labor
Code. What is prohibited are strike-breakers – those who
break the picket lines. Unsaon man nimo pagsulod didto,
tapos scab ka? Gawas kung buk-on nimo ang picket lines.
So, kung gusto ka mupuli, mu-break ka sa picket lines.
Kana ang gi-dili.
Bantay kay kanang van na sirado, unya gusto jud musulod
unya dili makasulod kung di abrihan. Muingon ang driver
na ngano iya man abrihan, pangawaton pa lang ang
sulod sa van niya. Babagan dayon sa strikers and higda
dinha sa atubangan. Mag drama-drama. Gi foresee na
na ug maayo sa strike manager. Unsa’y buhaton sa
manager? Butangan na ug grasa tanan. Mag gubot na,
tawagon dayon na ang pulis tapos tuwaron na nila,
matumba na. Muabot ang pulis tapos kung kinsa to ang
naa’y grasa, mao na ang responsable ana. Tactic na!
Unsa man sad mahimo sa union? Do not go there with you
bare hands! Use gloves! (Hahahaha)
Is the union within its rights to stop and inspect an enclosed
van? It has a right to protect the workplace, that no strike-
breaker can enter it by means of a vehicle. So, they can
use such force as necessary to stop that. Management
can solve that by opening the van showing that there are
no scabs there. Pirmero na van butangan na nila ug grasa
kay wa man scabs dinha tapos yugyugon sa strikers tapos
wa man diay so partida sa press. The following day, naa
na sad van na enclosed. Kana, butngan na na nila ug
scabs. Tapos naa naman ang mga police. Pagmaka
sulod na, padayon ang trabaho didto.
Whenever there is a strike, ang luoy kay office workers. You
are not used to the heat of the sun. One week ka na sa
gawas. Tulo na na ang sip-on nimo tapos hilantan ka na.
Muingon man dayon na ang president sa union – “there
must be one warm body contribution kada member.” So
kung masakit na ang member, iyang bana na sad ang
iyang paapilon. If there are two entrances, madoble ang
trabahuon sa union kay they have to picket the other side
also. Tapos pikon ang management anang strike, mag
abri sila ug duha pa ka gate. So, upat na ka gate. How
can you prevent? Daghan naman magluya. Problema! If
you are already an outside worker, bisan kana, mga two or
three weeks, din a magdugay! Ang kalaban naman sad
nila kay uwan naman sad. They might be used to the heat,
but they are not used to the rain. Ang problemado, ang
worker.
So you get your restraining order from the Commission.
When you file and question the legality of the strike, you file
it with the LA because it has jurisdiction to determine, under
Article 224 subparagraph 5, cases arising from any violation
of Article 264 of this Code, including questions involving the
legality of strikes and lockouts. That is original and exclusive
jurisdiction of the LA.
While that is pending and there are prohibited activities,
you need an injunction, you go to the NLRC because it has
the source or power to grant injunctive relief.
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What happens when the employer has a prior idea that a
strike is happening and starts transferring the equipments to
other places so that he can continue work and not
stopped? Is that illegal? That is not illegal. But the
consequence is, that place where you transferred it to, can
be picketed by the strikers.
Let’s say you have a dry cleaning and laundry services.
Mag strike imong worker, so ibalhin nimo imong mga
makina kay gagmay ra ma na. Sa balay niya gibutang.
Nahibaw-an sa workers. They have the right to picket there
at the house of the manager. Imong asawa di na
makagawas aron mangompra. Ang mga bata, di na
makagawas aron mangeskwela. Is that legal? Yes, since
you transferred the workplace there, it can be the subject
of picketing. Mao na ang gitawag na RUNAWAY SHOP.
A runaway shop can be the subject of picketing.
“No public official or employee, including officers and
personnel of the New Armed Forces of the Philippines or the
Integrated National Police, or armed person, shall bring in,
introduce or escort in any manner, any individual who
seeks to replace strikers in entering or leaving the premises
of a strike area, or work in place of the strikers. The police
force shall keep out of the picket lines unless actual
violence or other criminal acts occur therein: Provided, That
nothing herein shall be interpreted to prevent any public
officer from taking any measure necessary to maintain
peace and order, protect life and property, and/or enforce
the law and legal order.”
This is another prohibited activity. Suppose you are the
police or the military, with all the reason you are prohibited
because you are not supposed to take sides – you have to
be neutral. In fact, 50 meters away from the strike zone,
the police cannot be there. They can only go there if the
peace and order is threatened.
“Obstruct, impede, or interfere by force, violence,
coercion, threats, or intimidation any peaceful picketing by
employees during any labor controversy or in the exercise
of the right to self-organization or shall or abet such
obstruction or interference.”
“No person engaged in picketing shall commit any act of
violence, coercion or intimidation or obstruct the free
ingress to or egress from the employer’s premises for lawful
purposes, or obstruct public thoroughfares.”
Kanang public thoroughfares or obstruction - that is not the
jurisdiction of the military. It is the jurisdiction of the CTTMO
(City Traffic and Transfer Management Office). Sila ang
judge anang sidewalk. Sila ang mupapahawa ining mga
tao sa sidewalk based on an ordinance. Ang pulis diay?
Kadaghan na anang priorities sa pulis. Criminal man ang
gipangita ana.
Art. 279. Improved offer balloting. In an
effort to settle a strike, the Department of
Labor and Employment shall conduct a
referendum by secret ballot on the
improved offer of the employer on or
before the 30th day of the strike. When at
least a majority of the union members vote
to accept the improved offer the striking
workers shall immediately return to work
and the employer shall thereupon readmit
them upon the signing of the agreement.
In case of a lockout, the Department of
Labor and Employment shall also conduct
a referendum by secret balloting on the
reduced offer of the union on or before the
30th day of the lockout. When at least a
majority of the board of directors or trustees
or the partners holding the controlling
interest in the case of a partnership vote to
accept the reduced offer, the workers shall
immediately return to work and the
employer shall thereupon readmit them
upon the signing of the
agreement. (Incorporated by Section 28,
Republic Act No. 6715, March 21, 1989)
Improved offer balloting is a referendum by secret ballot
on the improved offer of the employer on or before the
30th day of the strike. It means that improved offer is
normally applicable only in dead lock strikes, not ULP
strikes. Wa gani mo magkasabot, mag deadlock strike na
sila.
If the employer changes his mind and makes a better offer,
then there can be a voting. This time, it’s just a simple
majority of the quorum of the union members and that is
enough to accept the improved offer. The quantum
majority needed is less than the quantum majority required
for a strike vote. Kay ang strike vote, majority of all the
members man – absolute majority. Here, it’s majority of the
union members. Wala naman ang all. So, that is already
the majority of the quorum.
LEGAL REMEDIES AGAINST PROHIBITED PRACTICES:
1. File ULP complaint taken up by the management
under Article 224 and file it with the LA.
2. File a complaint for violation of Article 278
(Prohibited Practices) in relation to Article 224
(Jurisdiction of the LA)
3. File a criminal case under Article 286 - Any person
violating any of the provisions of Article 278 of the
Labor Code shall be punished by a fine of not less
than one thousand pesos (P1,000.00) nor more
than ten thousand pesos (P10,000.00) and/or
imprisonment for not less than three months nor
more than three (3) years. This is filed with the
regular courts.
4. File an injunction suit to restrain or enjoin the
prohibited acts, whether actual or threatened,
under Article 225 E with NLRC under Rule 58
section 10 of the Rules of Court. You have to put
up a bond. Gasto na. The union can stop that by
also putting up a counterbond.
September 27 (2nd Part)
Let us go to strike.
There is this 64 dollar question: May strikes be enjoined?
GR: Only prohibited acts maybe enjoined, not the strike
itself. That is the pronouncement of the SC in the En Banc
decision of Bisig ng Mga Manggagawa v. NLRC (226 SCRA
499, 1993) The SC says the constitutional recognition of the
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right to strike does serve as a reminder that injunction
should be reduced to the fairest minimum. This is one of the
more accurate statements of the SC. Wala muingon ang
SC ug “the constitutional right to strike.”
Correct: “The constitutional recognition of the right to
strike.”
Having said that, here are the 5 exceptions to the “NO
injunction against strike” rule:
1. The FIRST exception is Manila Bulletin
Publishing Corp. v. Sanchez (144 SCRA 678) It will
be good for you to read this case because this is
a once-in-a-blue-moon case.
You know, this case happened before RA 6750 (Herrera-
Veloso Law). The Herrera-Veloso Law introduced to the
Labor Code the right of supervisors to form unions. Before
that, supervisors were lumped together with managers
and they had no right to strike. So before RA 6750, what
happened? Manila Bulletin employees who were
supervisors formed a union. They were claiming that they
were closer to the rank and file than managers so they
could form a union. Because management opposed
them, they filed a notice of strike because according to
them, management was committing unfair labor
practice by preventing them from forming a union.
So, what did the Manila Bulletin management do? They
went straight to the Supreme Court on an injunction
coupled with declaratory relief. How can you combine
injunction with declaratory relief? One of the
requirements of an injunction is: you must have a clear
right! Unya kining declaratory relief: the law is not so
clear that you want a clarification from the court as to
the rights of the parties. Unsaon man na? Basta kay they
combined it.
Now the SC rendered this decision En Banc. Sanchez at
the time was the Department of Labor Secretary. The SC
ordered the Secretary to not register the union of
supervisors. According to the SC, we are entertaining this
case as a matter of justice and equity. Then the SC says it
is a clear right: the Labor Code prohibits managers and
supervisors [to join unions]. So management has a clear
right. And so the Secretary of Labor is ordered not to
recognize the supervisors’ union of Manila Bulletin.
*Chika time with Hanz Menzi* 
So, read the Manila Bulletin case. It’s a once-in-a-blue-
moon case where the SC exercises its overriding
jurisdiction.
2. The SECOND exception is the Innocent
Bystander Rule. The landmark case here is MSF Tire
and Rubber Company v. CA (311 SCRA 784, 1999)
This is what happened: Here is a tire rubber repacking
company. Its workers went on strike because of a
bargaining deadlock. They could not agree on the terms
of the CBA. After the strike had gone on for two (2)
months, sirado ang planta, all of a sudden, the striking
workers got an injunction order from the RTC of
Muntinlupa. Unsa man ni? Unsa man ning injunction?
Because MSF Tire went to the regular courts and
petitioned an injunction. Kuyaw. And the court granted
the TRO. What happened is that this rubber repacking
company sold the land where the rubber repacking
company is in Muntinlupa. They sold it to a company;
60% owned by the original company but 40% owned by
Sayam Rubber. Sayam Rubber is a subsidiary of Sayam
Cement which is, they say, the equivalent of San Miguel
Corporation in Thailand although so much bigger than
San Miguel Corp. Who is the controlling stockholder of
Sayam Cement? The controlling stockholder is the King
of Thailand. So mao na ang source sa iyang income. It’s
called Sayam Cement, but its main source of revenue is
actually petroleum. *Chika minute with the King of
Thailand* So 60-40. But then, the improvements, the
machineries, the trucks, the different other assets of this
old rubber company was sold to MSF tire. MSF Tire now is
80% owned by Sayam Cement and 20% by the original
tire repacking company.
Who sued MSF Tire? Why are they suing? MSF says, we
did not hire these people. Why are they striking? We are
an innocent bystander and we are suffering damages
because of the strike. The issue is are they or are they not
innocent bystanders.
The SC said you are not an innocent bystander. Apil gud
ka sa corporation. 60% gud ka tag-iya sa yuta. 20% ka
tag-iya dire [sa corporation]. So dili ka innocent. What is
an innocent bystander? The illustration given by the
Court is the case of Liwayway Publishing v. CA.
Liwayway Pubishing is a sister company of Manila
Bulletin. It is located in the same compound as Manila
Bulletin.
Liwayway Manila Bulletin
Common entrance. Nagstrike sa Manila Bulletin The strikers
picketed at the main entrance. Chabaw ang Liwayway.
Unsaon naman namo ron pagbaligya sa Bisaya, Liwayway,
Hiligaynon? Hah?
Liwayway Publication went to the court. It said we are a
victim of the strikers. We cannot go the labor arbiter
because there is no employer-employee relationship
between us. And yet they are conducting their picket and
our customers cannot get in. how do we get our
magazines out to our customers? We will need an
injunction to order them to picket here [x mark] and not in
the main entrance. We are innocent bystanders.
What is the answer of the union? You are not innocent. The
controlling stockholder of Manila Bulletin is Hanz Menzi. The
controlling stockholder of Liwayway is also Hanz Menzi. That
is why it is staying in the same property that is owned by
also Hanz Menzi. So you are not innocent.
The SC says Manila Bulletin is a separate and distinct
personality that is registered with the Securities and
Exchange Commission. Liwayway is also a separate and
distinct personality that is also registered with the SEC. So
are you saying that we should disregard the separate and
distinct personality; pierce the veil of separate personality?
What is the anomaly being covered by the corporate
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entity that justifies the abrogation of the separate and
distinct personalit[ies]? There is no perpetuation of crime,
evasion of a relational [?]. There is none. Saying that you
are the same by the mere fact that there is one controlling
stockholder, we are going to disregard the separate and
distinct personality: that cannot stand.
SC said: Innocent Bystander [si Liwayway]! Restraining order
is issued. If you want to continue your picketing and strike,
picket and strike before the building of Manila Bulletin. So
that is the meaning of innocent bystander. Tagaan kag
problema, this is Gaisano Mall. You are a hole in the wall of
Gaisano Mall; namaligya ka ug fish balls. Inig buntag
nagdala ka sa imong fish balls, dala sad ka sa imong
gamay nga shellane. One day abot ka ug sayo, uy,
nagstrike man ang mga tao. Nagpicket ang mga Gaisano
Mall worker (at the entrance. So dili ka makasulod) Ingon
dayon ka, may nalang nagtuon ko sa akong labor law!
Nakahinumdum ko ni Fr Nazareno. Muadto ko sa RTC. File
ka ug petition for a restraining order claiming that you are
an innocent bystander; you have nothing to do with the
labor controversy; there is no employer-employee
relationship between you and the strikers and yet, the fish
balls that you have purchased got wasted. You are
suffering injury. Tugutan unta ikaw nila na magsulod. Are
you an innocent bystander?
Ingon dayon ang Court, tell it to the marines! You are not
an innocent bystander. Why? Because you have privity of
contract between Gaisano Mall and you. Contract of
lease. Sumpay ka sa kinabuhi sa Gaisano Mall kay
nagpirma man ka sa contract of lease. You have privity of
contract with Gaisano Mall so you are not an innocent
bystander.
It is your misfortune Liwayway that you are in juxtaposition
with Manila Bulletin.
That is the reason why you can go to the regular courts and
the regular court can issue a restraining order. Muapil siya
sa labor dispute because somebody who is neither
employee nor employer is suffering an irreparable right.
3. The THIRD exception is 277(g).
When in the opinion of the secretary of labor there exists a
labor dispute causing or likely to cause a strike or lockout in
an industry indispensable to the national interest, the
Secretary of Labor and Employment may assume
jurisdiction over the dispute and decide it or certify the
same in the Commission for compulsory artbitration.
The moment the Secretary assumes jurisdiction, what
happens? Such assumption or certification shall have the
effect of automatically enjoining the intended or
impending strike or lockout as specified in the assumption
or certification order. If one has already taken place at the
time of assumption or certification, all striking or lockout
employees shall immediately return to work and the
employer shall immediately resume operations and
readmit all workers under the same terms and conditions
prevailing before the strike or lockout. The Secretary of
Labor and Employment or the Commission may seek the
assistance of law enforcement agencies to ensure
compliance with this provision as well as with such orders as
he may issue to enforce the same.
So the Secretary of Labor has jurisdiction to take over a
case; assume jurisdiction. The moment he assumes:
automatic no more strike; all strikers return to work; the
employer must be forced to take back the workers.
Automatic na.
There had been many examples of the Secretary of Labor
assuming jurisdiction. The SC has said in a long line of cases
is the return to work order or the resumption of work is
ordered by the court granted by the law not in favor of any
party but in favor of the economy at large because it is a
dispute in an industry indispensable to the national interest.
So it’s the national interest that motivates the grant of
power to the secretary of labor.
Now, nagstrike ang Coca-Cola. Would you say that Coca-
Cola is indispensable to the national interest? The Secretary
of Labor assumes jurisdiction. Is Coca-Cola indispensable to
the national interest that the economy of the Philippines is
about to crumble because Coca-Cola is no longer
producing Coke? Naa baya uban sayo pa sa buntag,
Coke na. I know someone in my early priesthood…sa kasal,
sa fiesta, di man kape ila ipainom nimo…Coks (haha).
Gipas-an pa didto sa bukid. Basta naay Coks, special
occasion gyud na. Does that make Coke an industry
indispensable to the national interest?
Here in Davao (1986); economic strike; the Secretary of
Labor assumed jurisdiction. Are you convinced that Ateneo
de Davao is indispensable to the national interest?
Mamatay ba ang national interest kung walay AdDU? For
all you know kung masunog ni, mupadayon gihapon ang
Davao City. Dili man ni indispensable. Why? In Philippine
Telecommunications Workers v. CA the SC gave the
reason. You know, when the law grants to a specific
branch of government a power to exercise, in the words of
Justice Enrique Fernando, it behooves upon this Court to
assume a becoming modesty not to question that exercise
of power because the law has already granted that power
to a co-equal branch of government.
What is the trigger for the court to question the assumption
of jurisdiction? Only when there is grave abuse of
discretion. If grave abuse of discretion happens, then the
courts will begin to examine the exercise of that power.
What is an example of that? An example is Philippine
Match Company v. Secretary Brillantes. What happened
there? Why was the exercise of the assumption of
jurisdiction by the Secretary nullified by the SC? It was
nullified by the SC because the Secretary himself provided
the grounds for nullifying his own order.
PHIMCO (Philippine Match Company) v. Brillantes (304
SCRA 747, 1999). Traditionally, duha ra na kabuok ang
match companies sa Pilipinas. PHIMCO sa Manila and
Pano Match sa Cebu. PHIMCO distributes matches to the
whole of Luzon and part of the Visayas. Pano Match
distributes matches to part of the Visayas and the whole of
Mindanao. Nagstrike ang PHIMCO. The secretary of labor
assumed jurisdiction. Brillantes issued an assumption of
jurisdiction order.
Normally, an order begins with whereas clauses. In one of
the whereas paragraphs [of the assumption of jurisdiction
order] it said: “whereas this may not be a case involving an
industry indispensable to the national interest, nevertheless,
it is a significant community that is affected by the strike.”
Gi-admit naman mismo sa Secretary na dili gani ni
indispensable interest. Nganong nag-assume pa man siya.
It leaves the Court no choice but to countermand the
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order assuming jurisdiction. But if you just exercise it
forthright, like Davao, like Coca-Cola, the court will not
question. Why? Ma-uwaw siya magquestion. Diba
according to Justice Fernando, “it behooves upon this
court to assume a becoming modesty”; that it should not
question the exercise of that power specifically granted by
the law for that branch of government exercising it.
You know, this particular 277 (g) has undergone so many
changes. But the ruling of the SC has always been the
same. Before, it used to be “vital to the national interest”.
And then it was amended by Martial Law and it became
broader because it says, “affecting national interest”. If you
just the affect national interest, sulod ka na. Then the third
amendment, RA 6750 (Herrera-Veloso Law): “indispensable
to the national interest”.
That is the only case (PHIMCO case) where the SC came
out exquisitely shooting down the exercise of the power of
the Secretary in assuming jurisdiction.
------------------------------------------------------------------------
Now, the Secretary:
a. assumes jurisdiction, or
b. certifies the dispute to the NLRC
Don’t tell me that the Secretary of Labor will drop all his
work and will come to Davao City because there is a labor
dispute in Coca-Cola. What does he do?
In the assumption order, he appoints a Regional Director of
Labor to act as hearing officer.
If it is certified, he will issue an order to the NLRC that is
closest to the labor dispute. It is the NLRC in Cagayan de
Oro. Mao na ang iyang tagaan ug order to act as a
hearing officer. Now, they (Cagayan NLRC) could also
have work. They cannot just leave their work and come
here for hearing. So, they will order the Executive Labor
Arbiter in Davao City to be the hearing officer.
The hearing officer will conduct the hearings. File a [?]
paper, etc. and then they will give it to the Secretary of
Labor.
Now, do you remember the decided case of Ang Tibay v.
CIR re: requirements of due process in administrative
cases? You read that decision. It is a certification case. The
Secretary of Labor (because at that time there was still no
NLRC) ordered the CIR to make the hearings. Of course, it’s
the Secretary of Labor who will decide. What does the
Secretary of Labor do? Because after the hearing, the
Executive Labor Arbiter or the Regional Director of Labor
will make findings of fact and recommendation.
The Secretary has three (3) choices:
a. accept in toto, or
Kinsa man na si Toto? (haha) Pirmahan dayon
niya sa ubos. Mao na nang decision.
b. accept in part, reject in part, or
c. reject altogether the findings of fact and
recommendation and ask for another hearing.
Now, what is the power of the Executive Labor Arbiter in
case of certification of the case or the Regional Director in
case of assumption of jurisdiction?
*Chika time with labor dispute ending in killings in both
parties. Balos-balos. Gihaya sa picket lines. Naay pari
niabot, unya nagmisa pud daw didto. What did the
Regional Director as the hearing officer do? He did not
issue a return to work. Ana siya I am taking exception
because this will just aggravate the case. What did the SC
say? The Regional Director has no power to modify or in
any way change because return to work is automatic
whether or not the order contains a return to work. It is
contained in 277 (e). So also with the Executive Labor
Arbiter; he cannot amend because the return to the work is
for the sake of the economy at large and not for the sake
of any of the parties in dispute. Please remember that.
Mugawas gani ni sa Bar. (Leakage na ni guys)
Returning to work cannot be excused. You must return to
work.
Q: The strike happened because the leaders of the union
were dismissed for cause. When there is assumption of
jurisdiction, must they return to work?
A: SC says, yes. They must return to work.
This is the case of Smart. Dos sientos ka telephone
operators, they were laid off. Kay ngano man? Redundant.
Wala naman na. Now, the union protested. Kinahanglan
daw ibutang sila sa laing trabaho. But many of them
already received their separation pay. Pero nagstrike man
mga PLDT employees. Secretary of Labor assumed
jurisdiction; issued return to work order. Are the laid off
employees who already received their separation pay
covered by the return to work order? The decision of the
SC: all of them are covered.
What is the purpose of the return to work order? The return
to work order is necessary to restore the situation status quo
ante bellum. To return it just as it was before the dispute
erupted.
There is only one (1) instance where the SC excused the
non-return to work. What is that? That is the case NFL v.
NLRC. Rubber tappers ni sa Basilan.
In the Collective Bargaining, niingon ang management: we
want to increase your quota (within 8 hours of work). You
must be able to tap 250 trees.
Workers: We cannot do that. That is less than 2 minutes per
tree.
Management: Nahimo man lagi na sa Kidapawan?
Workers: That is Kidapawan. That is not Basilan. The trees in
Basilan were planted before the second World War. Dagko
na kaayo ang mga kahoy. Nanginahanglan na mi ug
ladder. [The process of tapping one tree is] more than 2
minutes na. Dili namo na mahimo.
Now, wa man gihapon mu-give up ang management. So
there was a deadlock. And then strike. The Secretary of
Labor assumed jurisdiction. Return to work! Wa man mu-
return to work ang mga workers.
Why?
Workers: Mu-return to work mi, the 250 [trees] we cannot
reach. Tangtang gihapon mi. Dinhi na lang mi (sa bank
house).
After 1 month, they did not return to work. The
management requested an order from the Secretary’s
office to terminate these [?]; to draw them out of the bank
house. Kuha na sila ug military aron i-clearing ang bank
house. Pag-abot sa military, nagkabuang na ang union.
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Urgent motion! Intervention by the Supreme Court. It
delved on the merits. It said that the failure to comply with
the return to work is justifiable. Because if they return to
work, they cannot comply to tap 250 trees.
That remains to be the only case where the SC excused the
non-compliance of the return to work.
September 28, 2017
The general rule is that strikes cannot be enjoined, but
there are few exceptions:
First, the manila bulletin case, as I told you about.
Second, is the so called innocent bystander rule.
Third, is article 277(G) that is when a labor dispute is
occurring in the industry indispensable to the national
interest.
Now we said that the first rule is because article 277(G)
precisely puts this to the office of the president actually the
one who is granted authority to assume jurisdiction over a
labor dispute that occurs in an industry indispensable to the
national interest is the president of the Republic. Why? The
last paragraph of 277 G, the president of the Philippine shall
not be precluded in determining and form intervening at
any time and assuming jurisdiction such labor dispute in
order to settle the same.
So it is actually the president that has this extraordinary
power and who you may ask is the president that has ever
done this? Has there been a president who has assumed a
labor dispute in an industry indispensable to the national
interest? President Erap Estrada, he assumed jurisdiction
directly over the labor dispute in the Philippine Airlines
(PALEA vs PAL). 10 years there will be no strikes, PAL cannot
lay-off anybody for the next 10 years and the collective
bargaining will continue after 10 years. Can you imagine
that? The Supreme court upheld Estrada, because the
challenge later on challenge came from the unions
minority. Effectively the presidents decision when he
assumed jurisdiction is that he made our union the
exclusive bargaining agent for more than 5 years. How can
he do that? The SC upheld Estrada because the
extraordinary reasons of the airline industry. (story about
airline industry by Bloomberg)
Philippine Airlines went for 10 years, walay CBA, walay
election, the same salaries and no lay-offs. 10 years
because that is the solution of President Estrada.
What are the effects when there is an assumption of
jurisdiction or a certification of the dispute to the NLRC?
There are several effects, first effect, all workers who are on
strike must return to work. Second effect, the employers
must accept all employees.
I told you the smart case, and the PLDT vs manggagawa
ng komunikasyon sa Pilipinas (2005, Chico-Nazario, 2nd
division). The secretary of labor assumed jurisdiction of the
dispute and ordered a return to work except those who
were terminated due to redundancy, the union struck on
23 of December 2002. The SC said, the return to work order
must cover all striking workers that includes all telephone
workers even those who had received there termination
benefits.
Again, there is this case of UIC vs secretary (2005, Azcuna,
1st division)
(Story about Joaquin Bernas, Adolfo Azcuna and Heidi
Yorac)
The issue in immaculate concepcion case, can the
secretary, upon the assumption, order the employer to
reinstate the employees terminated by the employer even
if those terminated employees are not part of the
bargaining unit? And their termination is covered by
decision of the VA which decision had become final and
executory.
Now the union did not appeal the decision of the VA so
after 10 days it became final and executory. The secretary
came up with the ruling.
Management did not reinstate these people who are not
part of the bargaining unit as ruled by the VA. Should this
people be reinstated? Because upon assumption of the
jurisdiction all workers must be reinstated to restore into the
status quo ante bellum or before the eruption of the
dispute.
The SC said: even if the they were already *** by the VA,
they should have been reinstated. Why? Again to restore it
to the status quo ante bellum. So what is the penalty? They
are given backwages for duration they should have been
reinstated up to dates until finality of the judgement of the
labor dispute.
Who is an employee? It includes any person in the employ
of an employer, the term shall not be limited to the
employees of the particular employer. It shall include any
individual whose work has ceased his work in connection of
labor dispute or because of unfair labor practice if he has
not obtained any other substantially equivalent and
regular employment.
So it can happen that your employment connection with
the employer has been severed but still you are an
employee that is why you are reinstated in case of your
assumption of jurisdiction. This is taken in the case of “CIR vs
FEU”. One of the leaders of the union was the assistant
librarian of the university, because he was kicked out the
union went on strike. He had no choice but to look for work,
he was accepted and given appointment as central bank
researcher. The SC said, the management of the FEU did
commit ULP, so reinstatement. Now, apil pa ba sya sa
employee didto sa FEU na regular naman sya 15 years sa
central bank. The SC said, he is part of those to be
reinstated! He has not obtained any substantially the same
and regular employment. The salary did not matter
because in the bangko central he will be forever a
researcher he has no career path there it is a dead end
road, because he is a librarian. If he was in FEU, he could
become a university librarian and it is essential to the
university, he has a career path.
October 11, 2017
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So I asked the office to give you a copy of the summary of
remedies of labor disputes. It’s all there. The numbers that
are there are the articles in the Labor Code as
renumbered. So, the way to go through this is you read and
then go to the articles and see whether it is true.
Now, we are already finished of grievance. And they say
that grievance normally ends in voluntary arbitration. And
then, from voluntary arbitration, where does it go? From
voluntary arbitration, if the party is still dissatisfied, it goes up
to the CA. How? It goes to the CA by way of Certiorari.
Why does it have to go by Certiorari? Because there is no
provision for appeal. The law says that the decision of the
VA becomes final and executory 10 days from receipt of a
copy of the decision of the VA. So, after 10 days, it’s
supposed to be final. But then, if there’s grave abuse of
discretion, you can move up to the CA. The question is how
much time do you have to go up to the CA?
We have a problem, and the SC has not yet made a
definitive pronouncement on the matter. Why? Under Rule
43 of the 1997 Rules of Civil Procedure section 1, you can
appeal the decision of the VA in 15 days. Take a look at
section 1, and there is a whole list of courts or
administrative bodies or agencies from which you can go
to the CA. Towards the very end, there is voluntary
arbitrator.
Section 1.Scope. — This Rule shall apply to appeals
from judgments or final orders of the Court of Tax
Appeals and from awards, judgments, final orders or
resolutions of or authorized by any quasi-judicial
agency in the exercise of its quasi-judicial functions.
Among these agencies are xxx
and voluntary arbitrators authorized by law. (n)
So what happens to the substantial provision in the Labor
Code which says it becomes final in 10 days from receipt of
the copy?
ART. 275 (262-A). PROCEDURES.
The award or decision of the Voluntary Arbitrator or panel
of voluntary arbitrators shall contain the facts and the law
on which it is based. It shall be final and executory after 10
calendar days from receipt of the copy of the award or
decision by the parties.
The provision in Rule 43 section 1 has been affirmed by the
Court in
SAMAHAN NG MGA MANGGAGAWA SA HYATT V.
BACUNGAN, L-149050, March 25, 2009 2nd Division Penned
by Justice Tinga
The decision of the VA to the CA is now appealable under
Rule 43, not Rule 65.
Rule 65 is Certiorari, original action that used to be
what it should be because there is no mode of appeal. But,
with the passing of SC Circular No. 1-95, you relate that to
Luzon
Development Bank v. Association of Luzon Development
Bank Employees, a 1995 case, the appeal now:
Rule 43 Section 4.Period of appeal. — The appeal shall be
taken within 15 days from notice of the award, judgment,
final order or resolution, or from the date of its last
publication, if publication is required by law for its
effectivity, or of the denial of petitioner's motion for new
trial or reconsideration duly filed in accordance with the
governing law of the court or agency a quo. Only 1 MR
shall be allowed. Upon proper
motion and the payment of the full amount of the docket
fee before the expiration of the reglementary period, the
CA may grant an additional period of 15 days only within
which to file the petition for review. No further extension
shall be granted except for the most compelling reason
and in no case to exceed 15 days. (n)
That is section 4 of Rule 43, 1997 Rules of Civil Procedures
Revised by Administrative Circular No. 1-95.
And from the CA, you go to the SC on question of law.
Remember the 2 exceptions I said here:
1. Illegal dismissal – that is an exception of the act
from grievance to the voluntary arbitrator, or
2. When you go to the SC on a pure question of law
in the same way that the workers went straight to
the SC from the decision of VA Bacungan in
Mantrade case as a question on 13th month pay.
So, BLR is the third column here with respect to federations
and national trade union centers
- their registration, revocation, and cancellation
cases, also
- intra-union disputes and inter-union conflicts.
What is the difference between inter-union and intra-
union? Intra-union pila man n aka union ang nag away?
Walay union nag away. Mga myembro sulod sa union nag
away, intra gud. Member versus member, member against
officer, officer against officer.
Now, inter-union dispute, pila man ka union nag away? At
least 2. There could be more but at least 2. Then you have
a proper classification of inter-union dispute.
Who has jurisdiction? BLR.
Now, the trouble with the BLR is that the BLR although it has
jurisdiction to hear and decide conflicts within the union,
the SC has ruled that the BLR does not have jurisdiction to
award damages. It has no jurisdiction to award damages.
So mag away ang duh aka union uya daug ka nya you
cannot get relief by way of damages. Mag sugod na sad
ka sa regular court. Adto na sad ka mangayog damages.
Mao unta nay gi amend ni Jinggoy of the Labor Code.
Niadto ang Labor Arbiter wa may damages. so if you file
an illegal dismissal case in the LA, and you were adjudged
the winner, can you claim damages because of the
manner of your dismissal? You have to file another case in
the regular courts because damages are within their
jurisdiction. That is why they amended. After the
amendment, the standard case of Sta. Ines-Melale v. NLRC
was finally thrown out. Now, the LA can award damages.
So that is what you have to be careful with respect to
BLR original jurisdiction 232 with respect to inter-union and
intra-union disputes.
ARTICLE 232, LC. BUREAU OF LABOR RELATIONS
The Bureau of Labor Relations and the Labor Relations
Divisions in the regional offices of the Department of Labor,
shall have original and exclusive authority to act, at their
own initiative or upon request of either or both parties, on
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all inter-union and intra-union conflicts, and all disputes,
grievances or problems arising from or affecting labor-
management relations in all workplaces, whether
agricultural or non-agricultural, except those arising from
the implementation or interpretation of collective
bargaining agreements which shall be the subject of
grievance procedure and/or voluntary arbitration.
The Bureau shall have fifteen (15) working days to act on
labor cases before it, subject to extension by agreement of
the parties.
Of course, as to petitions for certification elections:
1. Complaints about election of officers, that is intra-
union ha
2. CBA registration disputes
3. Visitorial powers - that is handled by the regional
office of the Dept. of Labor.
4. Actions arising from 249 (administration and
accounting of union funds and other violations of
the rights of members)
5. Rights and conditions of memberships (232)
6. Certification elections, and then
7. Exercise of visitorial powers of the DOLE-BLR on
unions
o There is visitorial powers of the workplace
(128)
o There is visitorial powers also for unions.
The union’s offices can be inspected at
any time of the day or night provided it
is open. You do not need a search
warrant there. The Regional Director of
Labor can send his inspectors.
Now, where is the power of the BLR provided? It is provided
in the Administrative Code. The provision in the Labor Code
is for the Secretary to have visitorial powers and his
authorized representative. The power of the BLR is not
derived from the Secretary. It is derived from law and it is in
the Administrative Code. How do we know that? Because
the SC pointed that out in a landmark case of La Tondeña
Workers Union vs. Secretary 239 SCRA 117. According to
the SC, the BLR’s visitorial powers is provided by Section 16,
Chapter 4, Book 4, Title 7 of the Administrative Code of
1987.
Sec. 16. Bureau of Labor Relations. - The
Bureau of Labor Relations shall set policies, standards, and
procedures on the registration and supervision of legitimate
labor union activities including denial, cancellation and
revocation of labor union permits. It shall also set policies,
standards,and procedure relating to collective bargaining
agreements, and the examination of financial records of
accounts of labor organizations to determine compliance
with relevant laws.
So, cancellation of union registration, suspension of unions
because of violations, etc.
What are the grounds now? Only three grounds left:
1. Misrepresentation, falsification of the minutes of
the adoption of the Constitution and By-Laws by
the union;
2. Misrepresentation, falsification, other irregularities
in the minutes of the election of officers;
3. When the union under the provision of the Labor
Code now has in a meeting duly called for the
purpose voted to have its registration cancelled
and it is by vote of 2/3 of the union total
membership. Once that happens, then that is a
ground for cancellation of the union registration.
All the other so-called grounds before – violation of
rights and conditions of membership, they are going to
be remedied by disciplining the officers of the union
that are in charge: president, the treasurer, the vice
president, they will be disciplined. And they will be
disciplined by removal, suspension. Can you imagine
that if a president of the union is removed by the BLR?
What will happen?
Suppose the union and management have a Union
Security Agreement that continued membership in the
union is a condition for continued employment?
Tangtang siya sa trabaho. Football siya. But you can
no longer have the union’s registration cancelled
because of the violations of the rights and conditions
of membership because that is now *.
Let me ask you. Suppose management insists on its
interpretation of the union provision because of its
copy of the CBA. The copy of the CBA “may provide
for emergency leave”. But the union’s copy is “shall
provide for emergency leave”. How do you settle
that? Where will you go? Grievance? Labor Arbiter?
Where will you go? Who has the authoritative copy of
the CBA? The BLR. Mao ganing giparehistro ninyo.
Mao nang certified copy of the CBA. Bayad kag usa
ka libo, irehistro nimo, those are the post negotiation
formalities of the CBA. Remember? Human nag
pirmahe, hatag na ang signing bonus. Mao to ang
mag daug diha. So, ipa-subpoena na ninyo,
pagawasun ninyo na.
Whether it’s a grievance, pagawasun ninyo. Pakita
diha. BLR mupagawas ana. If you charge
management that it is flagrant and/or malicious
violation of the CBA economic provision, kay naa man
kay gipaabot, shall provide for *, but economic
provision nana because the provision is reducible to
peso value. Mahimong mu-file kag ULP ana. Asa man
nato i-* ang ULP beh? Asa man ka mu-file anang ULP?
LA ka mu-file ana, exclusive and original jurisdiction na
sa LA. But if it is a question of interpretation, asa man a
mu-file? Grievance kana, VA. In either case, i-
subpoena na nimo nang BLR na produce, ipakita na.
ipakita ang CBA kay mao nay definitive evidence of
what is the CBA.
POEA: what is the jurisdiction of the POEA? Remember,
if you charge a fee for recruiting and placement, you
need a license. If you do not charge a fee, you have
a permit.
1. Cancellation of permits;
2. Cancellation of license;
Adto na mag daog sa POEA.
How about violations of contracts of OFWs? Can the POEA
not adjudicate that? Before but now no more.
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But then, there are other disciplinary actions versus OCWs
(Overseas Contract Workers). What are those?
Mupakanaog ug directive and POEA: no deployment of
Filipinos allowed in Iraq or in Afghanistan. Pero matintal
man gyud ang Pilipino. Kinsa may maka disiplina ana?
POEA ang mudisiplina ana. Cancelled ang imong
deployment, ikaw blacklisted kana, di kana maka apply ug
trabaho didto sa gawas. Japan na discover nila nganung
gi dugukan man ning club? Kay pirti pa ka batan-un sa
mga nag sayaw2 dinha. Pilipina ang ga sayaw2, minor.
Dakop. What’s the rule now if there is a minor? Mandatory
repatriation. The government spends for that. Cancelled
imong passport. Wa na. Di naka makahimo ug langyawg
panarbaho. Dicsciplinary actions of OCWs, it’s the POEA.
And they can effectively recommend for the cancellation
of passport of an OCW for violating POEA rules.
Alright, remember, the agent here when it comes to sea
men, kanang sea-based contract workers seamen man na
sila, land-based mao na silang contractor, land-based. If
their foreign principal violates the contract, gipapauli silag
kalit, naa pay nahibilin sa ilang contract, the principal
cannot be reached by our laws because our labor laws
are municipal in nature. Who will be reached? The
manning agent if it is sea-based, the placement agency if
it is land-based. Sila na maoy gukdon. Sila nay gukdon.
Padal-an silag summons muingun sila ‘di naman mi agent,
the new agent is this placement agency, not us even
though in the contract it is us, we were the agent at the
time of the signing’.
Are you still involved when you are no longer the agent?
Yes. The law says you are liable until the expiration of the
contract that you signed even though your relationship as
principal and agent has been separated. Bag-o nang
exception sa law on agency. The agent cannot be
solidarily liable with the principal when he is no longer the
agent. He cannot be. It is the principal always. Why?
Because the contract of agency is based on trust and
confidence and at any time can be severed.
Now, let’s discuss Art 128 of the Labor Code --- the visitorial
powers and quasi-judicial powers of the RD of Labor. There
is no limit to the money claims in visitorial powers. No limit.
The Labor Inspector goes to the office or the workplace.
Art. 128. Visitorial and enforcement power.
1. The Secretary of Labor and
Employment or his duly authorized
representatives, including labor
regulation officers, shall have access
to employer’s records and premises at
any time of the day or night whenever
work is being undertaken therein, and
the right to copy therefrom, to
question any employee and
investigate any fact, condition or
matter which may be necessary to
determine violations or which may aid
in the enforcement of this Code and
of any labor law, wage order or rules
and regulations issued pursuant
thereto.
2. Notwithstanding the provisions of
Articles 129 and 217 of this Code to the
contrary, and in cases where the
relationship of employer-employee still
exists, the Secretary of Labor and
Employment or his duly authorized
representatives shall have the power
to issue compliance orders to give
effect to the labor standards provisions
of this Code and other labor legislation
based on the findings of labor
employment and enforcement officers
or industrial safety engineers made in
the course of inspection. The Secretary
or his duly authorized representatives
shall issue writs of execution to the
appropriate authority for the
enforcement of their orders, except in
cases where the employer contests
the findings of the labor employment
and enforcement officer and raises
issues supported by documentary
proofs which were not considered in
the course of inspection. (As amended
by Republic Act No. 7730, June 2,
1994).
An order issued by the duly authorized
representative of the Secretary of
Labor and Employment under this
Article may be appealed to the latter.
In case said order involves a monetary
award, an appeal by the employer
may be perfected only upon the
posting of a cash or surety bond issued
by a reputable bonding company
duly accredited by the Secretary of
Labor and Employment in the amount
equivalent to the monetary award in
the order appealed from. (As
amended by Republic Act No. 7730,
June 2, 1994)
3. The Secretary of Labor and
Employment may likewise order
stoppage of work or suspension of
operations of any unit or department
of an establishment when non-
compliance with the law or
implementing rules and regulations
poses grave and imminent danger to
the health and safety of workers in the
workplace. Within twenty-four hours, a
hearing shall be conducted to
determine whether an order for the
stoppage of work or suspension of
operations shall be lifted or not. In
case the violation is attributable to the
fault of the employer, he shall pay the
employees concerned their salaries or
wages during the period of such
stoppage of work or suspension of
operation.
4. It shall be unlawful for any person or
entity to obstruct, impede, delay or
otherwise render ineffective the orders
of the Secretary of Labor and
Employment or his duly authorized
representatives issued pursuant to the
authority granted under this Article,
and no inferior court or entity shall
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issue temporary or permanent
injunction or restraining order or
otherwise assume jurisdiction over any
case involving the enforcement orders
issued in accordance with this Article.
5. Any government employee found
guilty of violation of, or abuse of
authority, under this Article shall, after
appropriate administrative
investigation, be subject to summary
dismissal from the service.
6. The Secretary of Labor and
Employment may, by appropriate
regulations, require employers to keep
and maintain such employment
records as may be necessary in aid of
his visitorial and enforcement powers
under this Code.
After the inspection, the Regional Director of Labor will issue
compliance orders, wage orders.
How do you counter a compliance order? The only
evidence allowed after the compliance order has been
issued is if you can present documentary evidence not
otherwise considered in the course of inspection. A payroll
is required by the implementing orders to be at hand
during the inspection. If you cannot have any
documentary evidence, the conclusion is, you are
suppressing evidence because it is inimical to your cause.
That is the general presumption in evidence.
What ‘documentary evidence’ are we talking about that
you can present to counter the compliance order of the
Regional Director? An example is an exception order
issued by the Regional Tripartite Wages and Productivity
Boards.
So kana magamit na pero wa gani kay exception ana, na
dili sa mi muhatag sa wage order kay nagkagidlay ning
employer. Naluoy ang employees sa employer, so
unanimous ang pirma, sila tanan nipirma sa CBA. Dili na
pwede. Only an exception order by the Regional Tripartite
Board will excuse you from not complying with the wage
order.
Rule: Wage orders by exemption cannot be obtained by
any waiver of the employees and/or the union itself.
What’s the next thing that will follow? An Order of
execution, pareha ng madaog ka ug kaso. Kinsa hatagan
sa order to execute, ang sheriff, padulong na sya sa
bangko sa employer.
That is visitorial powers. Karon, backtrack ta gamay, balik
ta sa Voluntary Arbitration. Does the VA have power to
inspect the workplace? Yes, he can do that. Can the VA
interview workers? You have to qualify. If the worker a
member of the union, if signatory sya sa CBA, then YES. But
if dili member sa union, even if he belongs to the BU, he is
considered a third party who has not surrendered himself to
the jurisdiction of the VA, so he cannot be compelled.
Lain ang contempt powers sa VA ug Compulsory arbitrator.
RD of Labor also has quasi judicial powers. Over what
cases? Money claims. Dependent on the amount. What is
the jurisdictional amount? Amounts not exceeding 5K.
Situation: Suppose there are many workers who have
individual aggregate money claims that do not exceed 5k
and none of them have been severed from employment
and they go to RD on a money claims complaint. If one of
the workers have a money claim that exceeds 5k, what is
the right thing for the RD to do?
Answer: He must inform the workers that they have to refile
the case with the LA. Because there is one that exceeds his
jurisdiction. Why is it that everybody else has to follow,
when only one of them has a money claim that exceeds
5K? The reason is in order to avoid conflict of decision. So
para pareho ang judgment, para sila tanan, they go to the
LA. There must be no prayer for reinstatement, which
means that it is not a termination case. Naa gani na
termination, if that is the cause of action in the main and
the money claims is merely ancilliary, the amount no longer
matters. LA na dayon. Maski below 5k, above 5k.
Now, let us go to the last column, Labor Arbiter. ULP.
Original and exclusive jurisdiction over ULP. What can
trump this? When the parties say sa VA na lang sila. The LA
has to give way to the VA. Why? Because the constitution
favors VA over compulsory arbitration. Because it’s more
beneficial to the parties or more accessible. Remember
ULPs cannot be compromised, because it may be the
subject of criminal prosecution.
Now we go to termination cases, example of termination
cases not covered by the jurisdiction of LA: If the
termination of the employee is due to the action of board
of directors of the corporation, it is not within the jurisdiction
of LA as a general rule. Example Vice President ka for
production and manufacture. 6 years na ka and every
year naa kay appointment. However, sa 7th yr wala
nagvote sa imo ang BOD.
Does the LA have jurisdiction? No. Because it would require
the LA to look into the actuations and proceedings of the
BOD and he has no jurisdiction to do that. Who has
jurisdiction to look into the internal proceedings of the
BOD? It is only the intracorporate court designated by the
Securities xxxx (Inaudible pero ana si Fr we will learn about
it in Corpo)
There are 2 exceptions (where the termination case is not
covered by the LA):
1. Gregorio Araneta University Foundation vs.
Antonio J. Teodoro : 16779 : 1988 Case
Bale, si Teodoro Acads VP and then sa 7th yr niya wala sya
gi-vote sa BOD as Acads VP. The Labor Arbiter has no
jurisdiction. Can the LA look into the internal proceedings of
the BOD and determine whether or not the proceeding is
regular or irregular? The LA is not a court of general
jurisdiction. The LA is a specialized office just dealing with
labor and has nothing to do with corporate affairs. So
gidismiss.
Ruling: The SC says the Board of Directors was within its
powers and authority to terminate Teodoro as to his duties
as AcadsVP but since he was a tenured regular professor
they should have reverted him to teaching because his
shortcomings as Acads VP has nothing to do with his
tenured regularity as a professor, therefore the LA is
correct.
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Employee man sya na karaan so naa sya’y Security of
Tenure as employee. Gipromote sya wala man sya
gipahulog sa pagtudlo so kay gitanggal man sya na
administrator dapat ibalik sya sa pagtudlo. Pero if you are
an ordinary executive, and then gitanggal ka, the SC says
the LA has no jurisdiction. It is the Board that removed him.
GREGORIO ARANETA UNIVERSITY
FOUNDATION vs. ANTONIO J. TEODORO
Teodoro started as a clerk in the Registrar's
Office of petitioner. In the course of his
continuous employment, he was promoted
to Assistant Cashier, Cashier, Treasurer,
Finance Director and, ultimately on
election by the Board of Trustees, as Vice
President and concurrently Treasurer.
As of March 23, 1983, Teodoro was holding
his position on an "Ad Interim Extension of
Appointment/Tenure" issued by the
University President up to March 31, 1983
pending appropriate action of the Board
of Trustees at its next meeting. His services
were thereafter re-extended to April 30,
1983, with his signed conformity, and finally
up to May 31, 1983 after which he was no
longer elected by the Board as Vice-
President and/or Treasurer.
He filed his basic complaint with the NLRC
on April 6,1984.
Petitioner raised for the first time in this
Court the issue of jurisdiction of the NLRC.
Petitioner theorizes that since Teodoro was
a corporate officer, the present
controversy is within the jurisdiction of the
Securities and Exchange Commission,
pursuant to P.D. 902-A, and not in the
public respondent.
Without the need of applying the rule on
estoppel by laches against petitioner, its
contention must fail on the ground of
misplaced reliance. As explained in Dy,
and the same is true with Philippine School
of Business Administration, the controversies
therein were intracorporate in nature and
squarely within the purview of Section 5(c),
P.D. 902-A since the real question was the
invalidity of the board of directors'
meetings wherein the corporate officers
involved were not re-elected, resulting in
the termination of their services. Thus:
There is no dispute that the position
from which Teodoro Vailoces claims to
have been illegally dismissed is an
elective corporate office. He himself
acquired that position through election
by the bank's Board of Directors at the
organizational meeting of November
17, 1979. He lost that position because
the Board that was elected in the
special stockholders' meeting of June 4,
1983 did not reelect him. And when
Vailoces, in his position paper
submitted to the Labor Arbiter,
impugned said stockholders' meeting
as illegally convoked and the Board of
Directors thereby elected as illegally
constituted, he made it clear that the
heart of the matter was the validity of
the Directors' meeting of June 4, 1983
which, by not re-electing him to the
position of manager, in effect caused
termination of his services.
Those considerations do not obtain in the
case at bar. No intracorporate controversy
exists and the jurisdiction of the public
respondent herein should be sustained.
2. Salafranca vs Philamlife : 121791 : December 23,
1998
What happened to Salafranca vs Philamlife?
Salafranca vs Philamlife
In 1981, Enrique Salafranca was hired as an
administrative officer by the Philamlife
Village Homeowners Associaiton, Inc.
(PVHAI). Salafranca was tasked to manage
the village’s day to day activities. His
employment was originally for 6 months
only but his contract was renewed multiple
times until 1983. But even after 1983,
he was still allowed to continue work even
without a renewed contract. In 1987, PVHAI
amended its by-laws. Among the
amendment was a provision that the
administrative officer (Salafranca) shall
have a tenure which is co-terminus with the
Board of Directors which appointed him. In
1992, the tenure of said Board of Directors
expired and so Salafranca was terminated.
ISSUE: Whether or not Salafranca was
illegally dismissed.
HELD: Yes. At that time, Salafranca already
enjoys security of tenure because he is
already a regular employee. It is true that
PVHAI has the right to amend its by-laws
but such amendment must not impair
existing contracts or rights. In this case, the
provision that Salafranca’s position shall be
co-terminus with the appointing Board
impairs his right to security of tenure which
has already vested even prior to the
amendment of the by-laws in 1987.
Dugay na Chief of Security si Salafranca sa Philam
Subdivision. But ang members daghan ang complaint
because dili kuno mudisiplina ang chief security sa mga
buang-buang sa subdivision, kanang paspas kayo mu-
drive, saba kayo pagka-gabie, wala daw gabuyag so dili
effective ang chief security. So ang BOD sa Subdivision,
gipa-amend nila ang Articles and by-laws and ibutang nila
that the Chief of Security needs to be appointed by them.
The following eve, na-approve naman ilang amendment
sa SEC, nag appoint sila ug Chief of Security, lahi ilang gi-
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appoint, dili si Salafranca. So, nag-file sya ug illegal
dismissal against Philam. What is the ruling of the SC?
Ruling: The SC said what the subdivision BOD did was a
contrivance in order to be able to fire the chief of security.
They went through the contrivance of creating a board-
appointed position and since it was done in bad faith, in
other words, it deprived the Chief Security of his vested
right over his job since he has gained regularity, that new
position created with the powers of the board is ultra vires
and the LA has the jurisdiction to declare that the action of
the board is equivalent to unjust termination.
Those are the 2 exceptions. Teodoro has been asked in the
Bar but Salafranca, not yet been asked. Who knows. You
might be the lucky batch.
Once again, the general rule is that the LA cannot look into
the internal proceedings of the BOD in appointing or
denying an appointment to an office which its by-laws
have created under the powers of the BOD.
Alright. Let’s now go to Money Claims.
There are certain money claims that cannot be in the
jurisdiction of LA. We have cases.
1. Molave vs Laron.
2.
MOLAVE MOTOR SALES, INC.,
vs.
HON. CRISPIN C. LARON
Petitioner is a corporation engaged in the
sale and repair of motor vehicles in
Dagupan City. Private respondent was, or
is, the sales manager of PLAINTIFF.
Alleging that DEFENDANT was a former
employee, PLAINTIFF had sued him, on
March 22, 1983, for payment of accounts
pleaded that during his incumbency as
such the defendant incurred accounts with
the remaining balances in the total sum of
P33,890.38 arising from the purchases of
vehicles and parts, repair jobs of his
personal cars and cash advances.
In the case below, PLAINTIFF had sued for
monies loaned to DEFENDANT, the cost of
repair jobs made on his personal cars, and
for the purchase price of vehicles and parts
sold to him. Those accounts have no
relevance to the Labor Code. The cause of
action was one under the civil laws, and it
does not breach any provision of the Labor
Code or the contract of employment of
DEFENDANT. Hence, the civil courts, not the
Labor Arbiters and the NLRC, should have
jurisdiction.
Manager si Gemeniano sa Molave Motors. The company
does repair work of damaged motor vehicles and one of
his privileges as manager is he can have his own car
repaired for free. Now, nagpaayos sya and nagpa-
overhaul sa iyang makina pagkahuman niresign sya. So
management went to the LA. Management said they had
a money claim kay kana sya part of his benefit as manager
is to have repairs. The LA entertained the case. Does LA
have jurisdiction?
Ruling: SC says no. No jurisdiction because this is a case of
mutuum. Utang diay ni. It is to be settled by the use of the
provisions of the Civil Code on loans. It is not within the
jurisdiction of the LA.
3. Another case, SMC vs NLRC (1989)
SMC told its employees, we are encouraging you to be
imaginative, to think of ways of how we can improve our
systems, suggest something, write it up and if your
suggestion is taken up by the company, then you will share
in the savings that the company will realize from the use of
your suggestion. Niingon ang isa na nihatag ko ug
suggestion then gi-reject ninyo then inyoha diay gikopya.
Kato na employee ga-trabaho sya sa distillery unya naa’y
nagbag-o unya iyaha tong suggestion. So niadto sya sa LA
on a money claim. Asa na daw ang share niya sa savings.
Because he said the company promised a share.
LA ruling: SMC should pay.
SC ruling: The SC said LA has no jurisdiction over the
dispute. Why? Because this is a case of an innominate
contract. The Labor Arbiter has no jurisdiction.
4. Pepsi-Cola Bottling vs Judge Martinez and
Tumala: G.R. No. L-58877 : March 15, 1982
Davao case ni. Si Tumala ang nadaog sa salesman contest
and an sya na, “niingon mo na national contest ni, na
padaghanay ug sales tapos ang prize kay house and lot
and wala ko niya hatagi ug house and lot tapos nireklamo
ko, gisipa ko ninyo.” That’s why he went to the regular
courts. Abi nimo ug innominate contract kay naa daw syay
gi-buhat. Kay nagbaligya sya ug daghan kaayo. So I did
and you must give (Note: This is Facio ut Des). Nahulog sa
office ni Judge Martinez. Si Judge Martinez said naa sya’y
jurisdiction.
Ruling: The SC said he had no jurisdiction because the main
cause of action is termination and the other issues are only
ancillary issues. Gi-terminate baya sya. So original
jurisdiction is with the LA because there is already
termination and the rest are just ancilliary issues to the
main.
PEPSI-COLA BOTTLING COMPANY
vs.
HON. JUDGE ANTONIO M. MARTINEZ, in his
official capacity, and ABRAHAM TUMALA,
JR.
This petition for certiorari, prohibition and
mandamus raises anew the legal question
often brought to this Court: Which tribunal
has exclusive jurisdiction over an action
filed by an employee against his employer
for recovery of unpaid salaries, separation
benefits and damages — the court of
general jurisdiction or the Labor Arbiter of
the National Labor Relations Commission
[NLRC]?
The facts that gave rise to this petition are
as follows:
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Abraham Tumala, Jr. filed a complaint
against petitioners Pepsi-Cola Bottling Co.
Under the first cause of action, the
complaint averred inter alia that Tumala
was a salesman of the company in Davao
City and was declared winner of the "Lapu-
Lapu Award" for his performance as top
salesman of the year, an award which
entitled him to a prize of a house and lot;
and that petitioners, despite demands,
have unjustly refused to deliver said prize
Under the second cause of action, it was
alleged that on August 21, 1980, petitioners
"arbitrarily and ilegally" terminated his
employment.
Respondent Tumala maintains that his
action for delivery of the house and lot, his
prize as top salesman of the company for
1979, is a civil controversy triable exclusively
by the court of the general jurisdiction.
Ruling: The SC does not share this view. The
claim for said prize unquestionably arose
from an employer-employee relation and,
therefore, falls within the coverage of par. 5
of P.D. 1691, which speaks of "all claims
arising from employer-employee relations,
unless expressly excluded by this Code."
Indeed, Tumala would not have qualitfied
for the content, much less won the prize, if
he was not an employee of the company
at the time of the holding of the contest.
Besides, the cause advanced by
petitioners to justify their refusal to deliver
the prize—the alleged fraudulent
manipulations committed by Tumala in
connection with his duties as salesman of
the company—involves an inquiry into his
actuations as an employee.
5. Another case (sorry wala’y citation gihatag):
Naa’y usa ka piloto. Iyang nahibal-an magpalupad ug
gagmay lang na eroplano and nipirma sya ug contract
with Singapore Airlines for a Pilot Training Agreement. Gipa-
dala sya sa Amsterdam and the company spent for his
training. He was to spend 300 hours in the flight simulator
and he will do that after the theoretical training and pass
another set of examinations. Then he signed a contract
with Singapore Airlines. What did the contract say, that if
he left after a certain number of years, and he is already a
pilot of SG airlines then he will pay damages and your
surety will also be jointly and solidarily liable. Karon after
two years ni-resign man sya and nibalhin sa Saudia Airlines.
Gigukod sya sa SG Airlines. The contract was signed here in
the Philippines and so it was brought before the regular
courts. The court held that the case involves an ER-EE
relationship and so the courts have no jurisdiction.
Ruling: The SC says this is not an ordinary ER-EE relationship
because there is a surety. It is an innominate contract. If
the LA is given jurisdiction over this by reason of
termination, it has to have jurisdiction over the surety as
well, which cannot be because the LA is not a court of
general jurisdiction.
Pag naa in-ani, if there are (1) liquidated damages, and (2)
there is a surety, therefore, the LA does not have
jurisdiction.
October 12, 2017
Original and exclusive jurisdiction of the labor arbiter;
Money claims of the labor arbiter
MARILLO JR., ET.AL. AND UST FACULTY UNION VS GAMILLA,
January 31 2005, 2nd Division, Justice Tinga. That’s where the
SC said: the BLR has no jurisdiction to award actual, moral,
exemplary, and other forms of damages. The BLR is not
empowered to adjudicate claims of such nature arising
from intra-union or inter-union dispute. That is the
pronouncement of the Courts. So remember that.
And there is a story of this Nestle salesman. This Nestle
salesmen are all on car plans. You have heard of a car
plan? What is it actually? Why are these drug pushers, or
these drug salesmen/salespersons, why are they on a car
plan? First of all, big territories, then they go to different
doctors and they try to push their particular brand of
medicine and the antibiotics. There are many
pharmaceutical companies selling antibiotics… (Father
asks class about drug pushers/salesman)
This is what happens. A car plan is designed to favor the
company. The makers of the car are named in the
company or the drug salesperson? It is in the name of the
drug salesperson. But it is chattel mortgaged to the
company. And the salesperson pays the company
periodically out of his car allowance which the company
pays. Why does the company not hold title to the care?
Because if the car hits somebody, or bumps somebody, or
destroys a property or like, who is liable? Not the company,
but the owner of the vehicle. So that’s the reason why it is
in the name of the drugs salesman. But the whole thing is
negotiated by the company, when they buy the car from,
let’s say, Toyota, they get it at specialized prices. Special
prices. They buy many. And Toyota would like them to be
repeat buyers. So barato. And then the drug salesman
pays.
Now this drug salesman in Nestle. What kind of drugs they
are pushing? They were pushing infant formula. Suroy-suroy
na sila mubaligya ana. Now, they were investigated for
selling samples. Nagbaligya silag samples. There are very
few salespersons who can’t resist selling samples such as
Viagra because it is highly in demand. In fact there are
people who look to buy Viagra specifically as sample
because it’s more open….
They were selling. And upon investigation, the company
found out that it is true that they were selling samples when
that is supposed to be given to doctors to promote the
products that they are selling. So after investigation, they
were told: you are terminated for cause. Nakasala mo,
mao man na. Now, after notice of termination, the
company sends another notice – separate notice. What is
that notice? “Return the car to the company, or just pay
the company the balance of what you owe under the car
plan.” Naa pa man kay balance wa nimo mabayri, bayri,
imuha nang kotse. The company will just issue an order to
lift a chattel mortgage annotation.
What did the Nestle salesmen do? Wa man nila giuli.
Instead they filed an illegal dismissal complaint, and then
they said “Until this illegal dismissal is settled, that is when
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we will return the vehicle.” What did the company do? The
company Nestle filed a suit in the regular courts, and that
suit is called “replevin”. What is replevin? It is a suit to
recover personal property. You are after the writ of
replevin. Once you filed the petition and the petition is
sufficient in form and substance, the writ of replevin issues
as a matter of course. Produce this particular personal
property in your possession, but which rightly belongs to the
petitioner Nestle. Unsa may tubag? Motion to dismiss for
lack of jurisdiction. They said: The regular courts does not
have jurisdiction on the issue on whether or not they should
retain the car because whether or not they should retain
the car is conditioned upon our employment. This car was
given to us in connection with an employer-employee
relationship. So therefore, the one that has jurisdiction is the
Labor Arbiter, not the regular courts. Paghuman ana ha.
Gyera na sa mga abogado. File ka diri. Petitioner. Answer.
Reply.
Who is correct? The employer-company who is now asking
that or the employee who says that this is a prejudicial
question to the main issue as to whether or not we were
rightly dismissed?
SC says: it is the regular court that has jurisdiction and this
question can be settled upon EREE. Why? Because it is
covered by an innominate contract of a loan with a
subsidiary contract of a chattel mortgage.
So finally, the Nestle drug salesmen, they have to return the
vehicle. But I bet you, when I looked at the dates of the
case, wa na, tagtag na kaayo to pag-uli nila kay dugay
kaayo ang desisyon. Miabot man ug 5 years to. Kadugay.
Mao nay giingon. Justice delayed, justice denied. Ang
makauna, maoy daog. That’s why a word of advice, tuni-i
ninyo nang provisional remedies... (Father talks about
provrem and PAO)
Pareha ini, illegal dismissal, prejudicial question. I-raise nato.
Ako pay Nestle, pangita dayon ug Spiderman. Spiderman!
Naa nay writ of replevin. Hain man ang kotse? Spiderman
ang mukuha ana, kamangon nag gabii, …, pak gawas na
na, kuhaon na na nimo. Naay mga spiderman. Dugay ma
na… Lima na katuig nahuman ang kaso. E di goodbye.
Pag-abot sa imuha, di kagang-kagang na. Gi-tow na gani
kay di na kadagan sa iyang kaugalingong motor. Human
na. Pildi namo. Paggawas sa replevin, spiderman imong
pangitaon. Naa dinhi mga spiderman. Bawion ang kotse.
Ingon nila, mao nay di mahimo sa mga babae nga lawyer,
kay ga-high heel kag gadala sa writ of replevin! Sows!  Di
ka kahimo. Laki ray kahimo ana…
Abogado ka sa Nestle. Pangitai nag paagi, kuhaon na
nato. What is the usual motive of the company when it
does that? Because there are 300 other salesman who also
have car plans. Musulod na sa ilang huna-huna, muingo
na sila, o di naa pud tay samples ana. So it becomes that
crucial.
So you know huh, why is it that replevin can never be under
the jurisdiction of the Labor Arbiter? Once again, because
it is question of property. What law is used to resolve the
dispute? It is not the Labor Code, it is the Civil Code. Mao
nay key nimo. That is the key.
Now, just 2 years ago, the same issue came up with Smart
Communication. This time it was a manager that have a
car plan. The same thing. But the car plan was not
formalized in a chattel mortgage. It was just an informal
agreement kept in the files of (the personnel file) of that
manager. This car was […], she bought it, but there is a
memorandum that she will reimburse the company paying
from her car allowance. Now, she was terminated. Why?
She failed to meet her quota. She did not challenge the
termination. She challenged the order of the company to
return the car. Question: since there is no chattel
mortgage, since, it’s just an informal agreement between
the parties, does the ruling in Nestle still held? And the SC
says, YES it is. Why? Because once again, the SC says: it is a
question of who has the better right of this particular
personal property – the car. And the Labor Code cannot
solve that. It is the Civil Code that is used. That is why the
Labor Arbiter cannot issue a restraining order to Smart
Communication to refrain from repossessing the care away
from this female manager.
So that is how far this particular issue has been […]. Even if
there is no chattel mortgage, even if there is an informal
car plan, it is still within the jurisdiction of the regular courts,
not with the Labor Arbiter.
Alright, take note that the Labor Arbiter now has jurisdiction
to rule upon violations of OCW contracts. If the OCW’s
contract is violated, and he is repatriated back to the
Philippines without finishing his contract, he files an illegal
dismissal complaint for premature termination of contract,
Labor Arbiter has jurisdiction. Venue? Venue is the choice
of the OCW. Either the Labor Arbiter that has jurisdiction
over the residence of the OCW, or the Labor Arbiter that
has jurisdiction over any of the places where any of the
elements were completed. Where was the contract of
employment signed? Manila. Then it could be filed in
Manila. Now, if it was signed in Cebu but the
disembarkation is in Manila, they could still file it in Manila
because it is the commission of one of the elements of the
crime.
So the Labor Arbiter, unlike any illegal termination cases,
has the power to award any reimbursement of the so-
called placement fee, plus 12% interest, plus the salaries of
the unexpired portion of the employment contract.
Now, just to let you know that the SC has said, that the
particular provision in the amendatory law which says that
the OCW, right of OCW to be paid for damages can be
unexpired portion of 3 months whichever is lower is
rendered unconstitutional, it is invalid. Because the Labor
Code does not say that is the remedy. The remedy is full
backwages. So, it would be discriminatory if the OCW’s
actual damages would be less than compared to the
remedy of a local. So, a local worker has an advantage.
The OCW therefore can recover the remaining term of the
contract and the salaries associated with the remaining
term. You know of course that the legal rate of interest was
fixed by the court as 6%, but here, the Labor Arbiter can
order 12% over the placement fee from the time it was
paid up to the time of the decision is rendered. Why?
Because it’s specified by the law.
This Smart case I was talking about is SMART
COMMUNICATIONS VS ASTORGA, January 28 2008, 542
SCRA 434, 3rd Division, by Nachura.
Now, when is an appeal form the LA to the NLRC
perfected? You must prepare your appeal, position paper,
within 10 days from receipt of the decision of the LA. Not
only that. You must put up a bond, perfect the bond within
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that same period, 10 days. What are the exemptions, if
any, with respect to the bond?
1. If the decision is not clear on the money awards. It
says illegal dismissed but it makes no
pronouncement as to the backwages. So you do
not know. So you prepare your brief, and then
you also file a motion to clarify the decision on
how much. Because there is no clear award of
the money claims.
2. Suppose the decision awards backwages, the
decision awards attorney’s fees, moral damages,
exemplary damages, and the appellant only
questions the moral damages and exemplary
damages and the attorney’s fees, does he have
to file a bond? Answer is no. No need to file. What
is covered is the actual damages, the
backwages, or the separation benefits. But
exemplary, moral damages, that is not included
in the computation of the bond that has to be
perfected upon.
You are interested in the Nestle case, it is NESTLE VS NLRC
195 SCRA 340 (1991). That is the replevin issue.
Now, may the LA decide the case without calling a
hearing, but simply based on position papers? What
happens is after the chances for compromise agreement,
calling a hearing, there is no compromise agreement, what
do the LA says? Okay, I will issue an order, both parties file a
position paper. Is that alright with you? Ok. Ok. So right
away, he issues an order: Parties are hereby ordered to file
their position papers simultaneously. After the LA has
received the position paper, and goes over the position
paper, can he decide to decide the case on the basis of
position papers alone and not call a hearing? He can do
that. He will issue an order. Parties are informed that this
case is considered submitted for decision. Mao na. Only his
decision is […].Now, if after the issue such order, naa pay
usa. Let’s say, the management still manages to file a
supplemental position paper, mao man nay trick. 10 days
ra gud na. Human sa imong kaso, mangayo kag desisyon
sa LA, file ka dayon position paper for appeal. 10 days. The
LA says, file a position paper. Unya wa kay panahon kay
daghan ra bag kaso. File kag gamayng position paper,
murag pro-forma ba… Mao na imong i-file, wa kay
nasabtan gud, aron makameet lang ka sa deadline.
Pagkafile na nimo, nakameet na ka sa deadline, sunod na
sad nimo ang supplemental position paper. Naa tay kuan
desisyon sa SC in a similar case…
Supplemental position paper that are filed after the order
of the LA informing the parties that the case is now
submitted for decision and the LA knows that the other
party was not served the copy of the supplemental position
paper. And he decides the case without informing the
other party. The SC says, that is irregular. You cannot do
that. The other party must be given a chance to reply to
the supplemental position paper, otherwise there is an
injustice that is being created.
In your position paper, you discuss underpayment of
wages, you discuss other benefits that was not given to
you. The other party (management) did not take that up.
Why? Because in the complaint it was not there. Can the
LA award the underpayment? Can the LA award the other
benefits that are asked for in the position paper which is
not in the complaint? SC says: YES. Bantayan na nimo,
simultaneous kanang position paper, wa man ka kabasa
sa iyahang position paper ana. Naa ganiy naapil sa
iyahang position paper unya wala naapil sa imuhang
position paper, file jud kag supplemental position paper
because the SC has held that if it is alleged but not proven,
the LA can award it. If it is argued in the position paper but
it is not in the complaint, it is well within the power of the LA
to award those claims. So dapat tubgaon jud na nimo sa
position paper.
Money claims that are pleaded, asked for in the
complaint, but not proven, if not disproven, can be
awarded by the LA. Why is that the case? Because the
employer is presumed to possess the evidence and is
required by law to file the payroll, of the disbursement of
benefits. It is the employer that has the record. So all the
employer has to do is to produce the record… As far as the
law is concerned, you don’t even have a long position
paper because the answer to the complaint is paid.
Attach payroll or a receipt... Mu-argue ka, tulo ka tuig na
mi gitaagan ug bonus. So bonus becomes a matter of
right. Muingon ang employer, we only gave one bonus this
year. Di gani ka muhatag ug evidence ana kas-a ra aka
muhatag uf bonus, then the next item of evidence to
present is your profit and loss statement. Naa man nay
profit and loss statement, naay salaries, wa may bonus, wa
mi muhatag ug bonus. And the profit and loss statement is
audited, certified by the independent external aurditor.
That is the evidence that you give. Ayaw ka. Namakak ka.
Di na nimo mahimo. Di nimo na tubugon. You only allege
and deny it without giving proof. You are expected to give
the proof.
So that is how the LA does it.
I will not review on the reinstatement pending appeal.
Nabungol na mo ana. That is in the termination
proceeding. You have a choice. There is a finding illegal
dismissal, upon appeal, you are reinstated in either actual
or payroll. You must report to the LA within 10 days from
receipt of the decision as to your choice. That is why there
is no need for writ of execution because the employer must
make a report as to what his choice is upon receipt of the
decision of the LA.
Now, if it is reversed by the NLRC, then you can stop paying
if it is reversed. What happened to the money that has
disbursed between the LA and NLRC, mabawi ba na nimo?
Mareimurse ba? No. Charge to experience na nimo na.
You cannot get it back. In fact the SC says: if for any
reason that was not paid, and eventually that decision of
the LA was reversed by finality by the SC, the employer still
has the obligation to pay the wages of that illegally
dismissed employee from the time of the pronouncement
of the LA up to the decision of the NLRC reversing the
same.
So, you are now ready for the exam. 
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