labor2 midterms reviewer

Labor 2 Midterms Reviewer

PROF. SOBREVIÑAS [2nd Sem 2011-2012] 1

PART ONE – LABOR RELATIONS POLICY A. CONSTITUTION

Art III. Section 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.

Art 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.

B. STATUTORY

1. METHODS OF DISPUTE SETTLEMENT

Art. 211. Declaration of Policy. (a) To promote and emphasize the primacy of free collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling labor or industrial disputes; (b) To promote free trade unionism as an instrument for the enhancement of democracy and the promotion of social justice and development;

Art. 263. Strikes, picketing and lockouts. (g) When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return-to-work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary of Labor and Employment or the Commission may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same. In line with the national concern for and the highest respect accorded to the right of patients to life and health, strikes and lockouts in hospitals, clinics and similar medical institutions shall, to every extent possible, be avoided, and all serious efforts, not only by labor and management but government as well, be exhausted to substantially minimize, if not prevent, their adverse effects on such life and health, through the exercise, however legitimate, by labor of its right to strike and by management to lockout. In labor disputes adversely affecting the continued operation of such hospitals, clinics or medical institutions, it shall be the duty of the striking union or locking-out employer to provide and maintain an effective skeletal workforce of medical and other health personnel, whose movement and services shall be unhampered and unrestricted, as are necessary to insure the proper and adequate protection of the life and health of its patients, most especially emergency cases, for the

duration of the strike or lockout. In such cases, therefore, the Secretary of Labor and Employment may immediately assume, within twenty four (24) hours from knowledge of the occurrence of such a strike or lockout, jurisdiction over the same or certify it to the Commission for compulsory arbitration. For this purpose, the contending parties are strictly enjoined to comply with such orders, prohibitions and/or injunctions as are issued by the Secretary of Labor and Employment or the Commission, under pain of immediate disciplinary action, including dismissal or loss of employment status or payment by the locking-out employer of backwages, damages and other affirmative relief, even criminal prosecution against either or both of them. The foregoing notwithstanding, the President of the Philippines shall not be precluded from determining the industries that, in his opinion, are indispensable to the national interest, and from intervening at any time and assuming jurisdiction over any such labor dispute in order to settle or terminate the same.

Art. 124. Standards/Criteria for minimum wage fixing. (5) In cases where there are no collective agreements or recognized labor unions, the employers and workers shall endeavor to correct such distortions. Any dispute arising therefrom shall be settled through the National Conciliation and Mediation Board and, if it remains unresolved after ten (10) calendar days of conciliation, shall be referred to the appropriate branch of the National Labor Relations Commission (NLRC). It shall be mandatory for the NLRC to conduct continuous hearings and decide the dispute within twenty (20) calendar days from the time said dispute is submitted for compulsory arbitration.

Art. 257. Petitions in unorganized establishments. In any establishment where there is no certified bargaining agent, a certification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by a legitimate labor organization. (As amended by Section 24, Republic Act No. 6715, March 21, 1989)

1. KIOK LOY VS. NLRC AND PAMBANSANG KILUSAN NG PAGGAWA

(CUEVAS: G.R. NO. L-54334, JANUARY 22, 1986)

Collective bargaining which is defined as negotiations towards a collective agreement, is one of the democratic frameworks under the New Labor Code, designed to stabilize the relation between labor and management and to create a climate of sound and stable industrial peace. It is a mutual responsibility of the employer and the Union and is characterized as a legal obligation. So much so that Article 249, par. (g) of the Labor Code makes it an unfair labor practice for an employer to refuse "to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work, and all other terms and conditions of employment including proposals for adjusting any grievance or question arising under such an agreement and executing a contract incorporating such agreement, if requested by either party.

While it is a mutual obligation of the parties to bargain, the employer, however, is not under any legal duty to initiate contract negotiation. The mechanics of collective bargaining is set in motion only when the following jurisdictional preconditions are present, namely, (1) possession of the status of majority representation of the employees' representative in accordance with any of the means of selection or designation provided for by the Labor Code; (2) proof of majority representation; and (3) a demand to bargain under Article 251, par. (a) of the New Labor Code . ... all of which preconditions are undisputedly present in the instant case.

2. MANILA DIAMOND HOTEL EMPLOYEES’ UNION VS. CA, THE

SECRETARY OF LABOR AND EMPLOYMENT, AND THE MANILA

DIAMOND HOTEL (AZCUNA: G.R. NO. 140518, DECEMBER 16, 2004)



Whether the CA erred in ruling that the Secretary did not commit any grave abuse of discretion in ordering payroll reinstatement in lieu of actual reinstatement.

This question is answered by the nature of Article 263(g). As a general rule, the State encourages an environment wherein employers and employees themselves must deal with their problems in a manner that mutually suits them best. This is the basic policy embodied in Article XIII, Section 3 of the Constitution, which was further echoed in Article 211 of the Labor Code. Hence, a voluntary, instead of compulsory, mode of dispute settlement is the general rule.

However, Article 263, paragraph (g) of the Labor Code, which allows the Secretary of Labor to assume jurisdiction over a labor dispute involving an industry indispensable to the national interest, provides an exception in ART 263 (g) that “If a strike has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return to work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout.”

This provision is viewed as an exercise of the police power of the State. A prolonged strike or lockout can be inimical to the national economy and, therefore, the situation is imbued with public necessity and involves the right of the State and the public to self-protection. Under Article 263(g), all workers must immediately return to work and all employers must readmit all of them under the same terms and conditions prevailing before the strike or lockout. This Court must point out that the law uses the precise phrase of “under the same terms and conditions,” revealing that it contemplates only actual reinstatement. This is in keeping with the rationale that any work stoppage or slowdown in that particular industry can be inimical to the national economy. It is clear that Article 263(g) was not written to protect labor from the excesses of management, nor was it written to ease management from expenses, which it normally incurs during a work stoppage or slowdown. It was an error on the part of the Court of Appeals to view the assumption order of the Secretary as a measure to protect the striking workers from any retaliatory action from the Hotel. This Court reiterates that this law was written as a means to be used by the State to protect itself from an emergency or crisis. It is not for labor, nor is it for management.

This Court has always recognized the “great breadth of discretion” by the Secretary once he assumes jurisdiction over a labor dispute. However, payroll reinstatement in lieu of actual reinstatement is a departure from the rule in these cases and there must be showing of special circumstances rendering actual reinstatement impracticable, or otherwise not conducive to attaining the purpose of the law in providing for assumption of jurisdiction by the Secretary of Labor and Employment in a labor dispute that affects the national interest. None appears to have been established in this case. Even in the exercise of his discretion under Article 236(g), the Secretary must always keep in mind the purpose of the law. Time and again, this Court has held that when an official by-passes the law on the asserted ground of attaining a laudable objective, the same will not be maintained if the intendment or purpose of the law would be defeated.

2. TRADE UNIONISM

Art. 211. Declaration of Policy. b. To promote free trade unionism as an instrument for the enhancement of democracy and the promotion of social justice and development; c. To foster the free and voluntary organization of a strong and united labor

movement;

3. WORKER ENLIGHTENMENT

Art. 211. Declaration of Policy. (d) To promote the enlightenment of workers concerning their rights and obligations as union members and as employees;

Art. 277. Miscellaneous provisions. a. All unions are authorized to collect reasonable membership fees, union dues, assessments and fines and other contributions for labor education and research, mutual death and hospitalization benefits, welfare fund, strike fund and credit and cooperative undertakings.(As amended by Section 33, Republic Act No. 6715, March 21, 1989)

Art. 241. Rights and conditions of membership in a labor organization. (p) It shall be the duty of any labor organization and its officers to inform its members on the provisions of its constitution and by-laws, collective bargaining agreement, the prevailing labor relations system and all their rights and obligations under existing labor laws.

3. VICTORIA VS. INCIONG AND FAR EAST BROADCASTING

COMPANY, INC. (FERNAN: G.R. NO. L-49046 JANUARY 26, 1988)

The strike staged by the union in 1972 was a futile move. The law then enforced, Republic Act 875 specifically excluded respondent company from its coverage. Even if the parties had gone to court to compel recognition, no positive relief could have been obtained since the same was not sanctioned by law. Because of this, there was no necessity on the part of private respondent to show specific acts of petitioner during the strike to justify his dismissal.

This is a matter of responsibility and of answerability. Victoria, as a union leader, must see to it that the policies and activities of the union in the conduct of labor relations are within the precepts of law and any deviation from the legal boundaries shall be imputable to the leader. He bears the responsibility of guiding the union along the path of law and to cause the union to demand what is not legally demandable, would foment anarchy which is a prelude to chaos.

Victoria should have known and it was his duty to impart this imputed knowledge to the members of the union that employees and laborers in non- profit organizations are not covered by the provisions of the Industrial Peace Act and the Court of Industrial Relations has no jurisdiction to entertain petitions of labor unions or organizations of said non-profit organizations for certification as the exclusive bargaining representatives of said employees and laborers.

As a strike is an economic weapon at war with the policy of the Constitution and the law at that time, a resort thereto by laborers shall be deemed to be a choice of remedy peculiarly their own and outside of the statute, and as such, the strikers must accept all the risks attendant upon their choice. If they succeed and the employer succumbs, the law will not stand in their way in the enjoyment of the lawful fruits of their victory. But if they fail, they cannot thereafter invoke the protection of the law for the consequences of their conduct unless the right they wished vindicated is one which the law will, by all means, protect and enforce.

4. SANTA ROSA COCA-COLA PLANT EMPLOYEES UNION VS. COCA-

COLA BOTTLERS PHILS., INC. (CALLEJO, SR.: G.R. NOS. 164302-03;

JANUARY 24, 2007)

The law makes a distinction between union members and union officers. A worker merely participating in an illegal strike may not be terminated from employment. It is only when he commits illegal acts during a strike that he may be declared to have lost employment status. For knowingly participating in an illegal strike



or participating in the commission of illegal acts during a strike, the law provides that a union officer may be terminated from employment. The law grants the employer the option of declaring a union officer who participated in an illegal strike as having lost his employment. It possesses the right and prerogative to terminate the union officers from service. Union officers are duty-bound to guide their members to respect the law. If instead of doing so, the officers urge the members to violate the law and defy the duly constituted authorities, their dismissal from the service is just penalty or sanction for their unlawful acts. The officers’ responsibility is greater than that of the members. Here, the law required respondents to follow a set of mandatory procedures before they could go on with their strike. But obviously, rather than call on their members to comply therewith, respondents were the first ones to violate the same.

Officers normally mean those who hold defined offices. An officer is any person occupying a position identified as an office. An office may be provided in the constitution of a labor union or by the union itself in its CBA with the employer. An office is a word of familiar usage and should be construed according to the sense of the thing. Since the jurisdiction of shop stewards and the supervisors includes the determination of the issues arising from the interpretation or even implementation of a provision of the CBA, or from any order or memorandum, circular or assignments issued by the appropriate authority in the establishment, they are part and parcel of the continuous process of grievance resolution designed to preserve and maintain peace among the employees and their employer. They occupy positions of trust and laden with awesome responsibilities. In this case, instead of playing the role of “peacemakers” and grievance solvers, the petitioners-shop stewards participated in the strike. Thus, like the officers and directors of the Union who joined the strike, petitioners-shop stewards also deserve the penalty of dismissal from their employment.

5. CONTINENTAL CEMENT CORPORATION LABOR UNION VS. CONTINENTAL CEMENT CORPORATION AND THE DEPUTY

MINISTER OF LABOR (GANCAYCO: G.R. NO. 51544 AUGUST 30, 1990)

The officers had the duty to guide their members to respect the law. Instead, they urged them to violate the law and defy the duly constituted authorities. Their responsibility is greater than that of the members. Their dismissal from the service is a just penalty for their unlawful acts.

It is within the power of the NLRC to order the removal of the officers of petitioner. This is provided for in the labor law. Art. 242. (p) “The Bureau shall have the power to hear and decide any reported violation and to mete out the appropriate penalty.”

The officers of petitioner misinformed the members and led them into staging an illegal strike. If the NLRC is to attain the objective of the Labor Code to ensure a stable but dynamic and just industrial peace, the removal of undesirable labor leaders must be effected.

4. MACHINERY DISPUTE SETTLEMENT

Art. 211 (e) To provide an adequate administrative machinery for the expeditious settlement of labor or industrial disputes

Art. 213. National Labor Relations Commission. There shall be a National Labor Relations Commission which shall be attached to the Department of Labor and Employment for program and policy coordination only, composed of a Chairman and fourteen (14) Members.

Five (5) members each shall be chosen from among the nominees of the workers and employers organizations, respectively. The Chairman and the four (4) remaining members shall come from the public sector, with the latter to be chosen from among the recommendees of the Secretary of Labor and Employment.

Upon assumption into office, the members nominated by the workers and employers organizations shall divest themselves of any affiliation with or interest in the federation or association to which they belong.

The Commission may sit en banc or in five (5) divisions, each composed of three (3) members. Subject to the penultimate sentence of this paragraph, the Commission shall sit en banc only for purposes of promulgating rules and regulations governing the hearing and disposition of cases before any of its divisions and regional branches, and formulating policies affecting its administration and operations. The Commission shall exercise its adjudicatory and all other powers, functions, and duties through its divisions. Of the five (5) divisions, the first, second and third divisions shall handle cases coming from the National Capital Region and the parts of Luzon; and the fourth and fifth divisions, cases from the Visayas and Mindanao, respectively; Provided that the Commission sitting en banc may, on temporary or emergency basis, allow cases within the jurisdiction of any division to be heard and decided by any other division whose docket allows the additional workload and such transfer will not expose litigants to unnecessary additional expense. The divisions of the Commission shall have exclusive appellate jurisdiction over cases within their respective territorial jurisdictions. [As amended by Republic Act No. 7700].

The concurrence of two (2) Commissioners of a division shall be necessary for the pronouncement of judgment or resolution. Whenever the required membership in a division is not complete and the concurrence of two (2) commissioners to arrive at a judgment or resolution cannot be obtained, the Chairman shall designate such number of additional Commissioners from the other divisions as may be necessary.

The conclusions of a division on any case submitted to it for decision shall be reached in consultation before the case is assigned to a member for the writing of the opinion. It shall be mandatory for the division to meet for purposes of the consultation ordained herein. A certification to this effect signed by the Presiding Commissioner of the division shall be issued and a copy thereof attached to the record of the case and served upon the parties.

The Chairman shall be the Presiding Commissioner of the first division and the four (4) other members from the public sector shall be the Presiding Commissioners of the second, third, fourth and fifth divisions, respectively. In case of the effective absence or incapacity of the Chairman, the Presiding Commissioner of the second division shall be the Acting Chairman.

The Chairman, aided by the Executive Clerk of the Commission, shall have administrative supervision over the Commission and its regional branches and all its personnel, including the Executive Labor Arbiters and Labor Arbiters.

The Commission, when sitting en banc shall be assisted by the same Executive Clerk and, when acting thru its Divisions, by said Executive Clerks for the second, third, fourth and fifth Divisions, respectively, in the performance of such similar or equivalent functions and duties as are discharged by the Clerk of Court and Deputy Clerks of Court of the Court of Appeals. (As amended by Section 5, Republic Act No. 6715, March 21, 1989) Art. 214. Headquarters, Branches and Provincial Extension Units. The Commission and its First, Second and Third divisions shall have their main offices in Metropolitan Manila, and the Fourth and Fifth divisions in the Cities of Cebu and Cagayan de Oro, respectively. The Commission shall establish as many regional branches as there are regional offices of the Department of Labor and Employment, sub-regional branches or provincial extension units. There shall be as many Labor Arbiters as may be necessary for the effective and efficient operation of the Commission. Each regional branch shall be headed by an Executive Labor Arbiter. (As amended by Section 6, Republic Act No. 6715, March 21, 1989) Art. 215. Appointment and Qualifications. The Chairman and other



Commissioners shall be members of the Philippine Bar and must have engaged in the practice of law in the Philippines for at least fifteen (15) years, with at least five (5) years experience or exposure in the field of labor-management relations, and shall preferably be residents of the region where they are to hold office. The Executive Labor Arbiters and Labor Arbiters shall likewise be members of the Philippine Bar and must have been engaged in the practice of law in the Philippines for at least seven (7) years, with at least three (3) years experience or exposure in the field of labor-management relations: Provided, However, that incumbent Executive Labor Arbiters and Labor Arbiters who have been engaged in the practice of law for at least five (5) years may be considered as already qualified for purposes of reappointment as such under this Act. The Chairman and the other Commissioners, the Executive Labor Arbiters and Labor Arbiters shall hold office during good behavior until they reach the age of sixty-five years, unless sooner removed for cause as provided by law or become incapacitated to discharge the duties of their office.

The Chairman, the division Presiding Commissioners and other Commissioners shall be appointed by the President, subject to confirmation by the Commission on Appointments. Appointment to any vacancy shall come from the nominees of the sector which nominated the predecessor. The Executive Labor Arbiters and Labor Arbiters shall also be appointed by the President, upon recommendation of the Secretary of Labor and Employment and shall be subject to the Civil Service Law, rules and regulations.

The Secretary of Labor and Employment shall, in consultation with the Chairman of the Commission, appoint the staff and employees of the Commission and its regional branches as the needs of the service may require, subject to the Civil Service Law, rules and regulations, and upgrade their current salaries, benefits and other emoluments in accordance with law. (As amended by Section 7, Republic Act No. 6715, March 21, 1989) Art. 216. Salaries, benefits and other emoluments. The Chairman and members of the Commission shall receive an annual salary at least equivalent to, and be entitled to the same allowances and benefits as those of the Presiding Justice and Associate Justices of the Court of Appeals, respectively. The Executive Labor Arbiters shall receive an annual salary at least equivalent to that of an Assistant Regional Director of the Department of Labor and Employment and shall be entitled to the same allowances and benefits as that of a Regional Director of said Department. The Labor Arbiters shall receive an annual salary at least equivalent to, and be entitled to the same allowances and benefits as that of an Assistant Regional Director of the Department of Labor and Employment. In no case, however, shall the provision of this Article result in the diminution of existing salaries, allowances and benefits of the aforementioned officials.(As amended by Section 8, Republic Act No. 6715, March 21, 1989)

Chapter II POWERS AND DUTIES

Art. 217. Jurisdiction of the Labor Arbiters and the Commission. a.Except as otherwise provided under this Code, the Labor Arbiters shall

have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the following cases involving all workers, whether agricultural or non-agricultural:

b.Unfair labor practice cases; c.Termination disputes; d.If accompanied with a claim for reinstatement, those cases that workers

may file involving wages, rates of pay, hours of work and other terms and conditions of employment;

e.Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations;

f.Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts; and

g.Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding five thousand pesos (P5,000.00) regardless

of whether accompanied with a claim for reinstatement. h.The Commission shall have exclusive appellate jurisdiction over all cases

decided by Labor Arbiters. i.Cases arising from the interpretation or implementation of collective

bargaining agreements and those arising from the interpretation or enforcement of company personnel policies shall be disposed of by the Labor Arbiter by referring the same to the grievance machinery and voluntary arbitration as may be provided in said agreements. (As amended by Section 9, Republic Act No. 6715, March 21, 1989)

Art. 218. Powers of the Commission. The Commission shall have the power

and authority: a.To promulgate rules and regulations governing the hearing and disposition

of cases before it and its regional branches, as well as those pertaining to its internal functions and such rules and regulations as may be necessary to carry out the purposes of this Code; (As amended by Section 10, Republic Act No. 6715, March 21, 1989)

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

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

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

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

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

e.To enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts or to require the performance of a particular act in any labor dispute which, if not restrained or performed forthwith, may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party: Provided, That no temporary or permanent injunction in any case involving or growing out of a labor dispute as defined in this Code shall be issued except after hearing the



testimony of witnesses, with opportunity for cross-examination, in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and only after a finding of fact by the Commission, to the effect:

f.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;

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

h.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;

i.That complainant has no adequate remedy at law; and j.That the public officers charged with the duty to protect complainant’s

property are unable or unwilling to furnish adequate protection.

Such hearing shall be held after due and personal notice thereof has been served, in such manner as the Commission shall direct, to all known persons against whom relief is sought, and also to the Chief Executive and other public officials of the province or city within which the unlawful acts have been threatened or committed, charged with the duty to protect complainant’s property: Provided, however, that if a complainant shall also allege that, unless a temporary restraining order shall be issued without notice, a substantial and irreparable injury to complainant’s property will be unavoidable, such a temporary restraining order may be issued upon testimony under oath, sufficient, if sustained, to justify the Commission in issuing a temporary injunction upon hearing after notice. Such a temporary restraining order shall be effective for no longer than twenty (20) days and shall become void at the expiration of said twenty (20) days. No such temporary restraining order or temporary injunction shall be issued except on condition that complainant shall first file an undertaking with adequate security in an amount to be fixed by the Commission sufficient to recompense those enjoined for any loss, expense or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs, together with a reasonable attorney’s fee, and expense of defense against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the Commission. The undertaking herein mentioned shall be understood to constitute an agreement entered into by the complainant and the surety upon which an order may be rendered in the same suit or proceeding against said complainant and surety, upon a hearing to assess damages, of which hearing, complainant and surety shall have reasonable notice, the said complainant and surety submitting themselves to the jurisdiction of the Commission for that purpose. But nothing herein contained shall deprive any party having a claim or cause of action under or upon such undertaking from electing to pursue his ordinary remedy by suit at law or in equity: Provided, further, That the reception of evidence for the application of a writ of injunction may be delegated by the Commission to any of its Labor Arbiters who shall conduct such hearings in such places as he may determine to be accessible to the parties and their witnesses and shall submit thereafter his recommendation to the Commission. (As amended by Section 10, Republic Act No. 6715, March 21, 1989)

Art. 219. Ocular inspection. The Chairman, any Commissioner, Labor Arbiter or their duly authorized representatives, may, at any time during working hours, conduct an ocular inspection on any establishment, building, ship or vessel, place or premises, including any work, material, implement, machinery, appliance or any object therein, and ask any employee, laborer, or any person, as the case may be, for any information or data concerning any matter or question relative to the object of the investigation. Art. 220. Compulsory arbitration. The Commission or any Labor Arbiter shall have the power to ask the assistance of other government officials and

qualified private citizens to act as compulsory arbitrators on cases referred to them and to fix and assess the fees of such compulsory arbitrators, taking into account the nature of the case, the time consumed in hearing the case, the professional standing of the arbitrators, the financial capacity of the parties, and the fees provided in the Rules of Court.] (Repealed by Section 16, Batas Pambansa Bilang 130, August 21, 1981) Art. 221. Technical rules not binding and prior resort to amicable settlement. In any proceeding before the Commission or any of the Labor Arbiters, the rules of evidence prevailing in courts of law or equity shall not be controlling and it is the spirit and intention of this Code that the Commission and its members and the Labor Arbiters shall use every and all reasonable means to ascertain the facts in each case speedily and objectively and without regard to technicalities of law or procedure, all in the interest of due process. In any proceeding before the Commission or any Labor Arbiter, the parties may be represented by legal counsel but it shall be the duty of the Chairman, any Presiding Commissioner or Commissioner or any Labor Arbiter to exercise complete control of the proceedings at all stages. Any provision of law to the contrary notwithstanding, the Labor Arbiter shall exert all efforts towards the amicable settlement of a labor dispute within his jurisdiction on or before the first hearing. The same rule shall apply to the Commission in the exercise of its original jurisdiction. (As amended by Section 11, Republic Act No. 6715, March 21, 1989) Art. 222. Appearances and Fees.

a.Non-lawyers may appear before the Commission or any Labor Arbiter only: b.If they represent themselves; or c.If they represent their organization or members thereof. d.No attorney’s fees, negotiation fees or similar charges of any kind arising from any collective bargaining agreement shall be imposed on any individual member of the contracting union: Provided, However, that attorney’s fees may be charged against union funds in an amount to be agreed upon by the parties. Any contract, agreement or arrangement of any sort to the contrary shall be null and void. (As amended by Presidential Decree No. 1691, May 1, 1980)

Art. 226. Bureau of Labor Relations. The Bureau of Labor Relations and the Labor Relations Divisions in the regional offices of the Department of Labor, shall have original and exclusive authority to act, at their own initiative or upon request of either or both parties, on all inter-union and intra-union conflicts, and all disputes, grievances or problems arising from or affecting labor-management relations in all workplaces, whether agricultural or 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. (As amended by Section 14, Republic Act No. 6715, March 21, 1989).

Art. 260. Grievance machinery and voluntary arbitration. The parties to a Collective Bargaining Agreement shall include therein provisions that will ensure the mutual observance of its terms and conditions. They shall establish a machinery for the adjustment and resolution of grievances arising from the interpretation or implementation of their Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies. All grievances submitted to the grievance machinery which are not settled within seven (7) calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the Collective Bargaining Agreement. For this purpose, parties to a Collective Bargaining Agreement shall name and designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators, or include in the agreement a procedure for the selection of



such Voluntary Arbitrator or panel of Voluntary Arbitrators, preferably from the listing of qualified Voluntary Arbitrators duly accredited by the Board. In case the parties fail to select a Voluntary Arbitrator or panel of Voluntary Arbitrators, the Board shall designate the Voluntary Arbitrator or panel of Voluntary Arbitrators, as may be necessary, pursuant to the selection procedure agreed upon in the Collective Bargaining Agreement, which shall act with the same force and effect as if the Arbitrator or panel of Arbitrators has been selected by the parties as described above. Art. 261. Jurisdiction of Voluntary Arbitrators or panel of Voluntary Arbitrators. The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have original and exclusive jurisdiction to hear and decide all unresolved grievances arising from the interpretation or implementation of the Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies referred to in the immediately preceding article. Accordingly, violations of a Collective Bargaining Agreement, except those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as grievances under the Collective Bargaining Agreement. For purposes of this article, gross violations of Collective Bargaining Agreement shall mean flagrant and/or malicious refusal to comply with the economic provisions of such agreement. The Commission, its Regional Offices and the Regional Directors of the Department of Labor and Employment shall not entertain disputes, grievances or matters under the exclusive and original jurisdiction of the Voluntary Arbitrator or panel of Voluntary Arbitrators and shall immediately dispose and refer the same to the Grievance Machinery or Voluntary Arbitration provided in the Collective Bargaining Agreement. Art. 262. Jurisdiction over other labor disputes. The Voluntary Arbitrator or panel of Voluntary Arbitrators, upon agreement of the parties, shall also hear and decide all other labor disputes including unfair labor practices and bargaining deadlocks.

Art. 277. (i) To ensure speedy labor justice, the periods provided in this Code within which decisions or resolutions of labor relations cases or matters should be rendered shall be mandatory. For this purpose, a case or matter shall be deemed submitted for decision or resolution upon the filing of the last pleading or memorandum required by the rules of the Commission or by the Commission itself, or the Labor Arbiter, or the Director of the Bureau of Labor Relations or Med-Arbiter, or the Regional Director. Upon expiration of the corresponding period, a certification stating why a decision or resolution has not been rendered within the said period shall be issued forthwith by the Chairman of the Commission, the Executive Labor Arbiter, or the Director of the Bureau of Labor Relations or Med-Arbiter, or the Regional Director, as the case may be, and a copy thereof served upon the parties. Despite the expiration of the applicable mandatory period, the aforesaid officials shall, without prejudice to any liability which may have been incurred as a consequence thereof, see to it that the case or matter shall be decided or resolved without any further delay.(Incorporated by Section 33, Republic Act No. 6715, March 21, 1989)

5. INDUSTRIAL PEACE

Art. 211 (f) To ensure a stable but dynamic and just industrial peace;

Art. 273. Study of labor-management relations. The Secretary of Labor shall have the power and it shall be his duty to inquire into: a.the existing relations between employers and employees in the

Philippines; b.the growth of associations of employees and the effect of such

associations upon employer-employee relations; c.the extent and results of the methods of collective bargaining in the

determination of terms and conditions of employment; d.the methods which have been tried by employers and associations of

employees for maintaining mutually satisfactory relations; e.desirable industrial practices which have been developed through

collective bargaining and other voluntary arrangements; f.the possible ways of increasing the usefulness and efficiency of collective

bargaining for settling differences; g.the possibilities for the adoption of practical and effective methods of

labor-management cooperation; h.any other aspects of employer-employee relations concerning the

promotion of harmony and understanding between the parties; and i.the relevance of labor laws and labor relations to national development.

The Secretary of Labor shall also inquire into the causes of industrial unrest and take all the necessary steps within his power as may be prescribed by law to alleviate the same, and shall from time to time recommend the enactment of such remedial legislation as in his judgment may be desirable for the maintenance and promotion of industrial peace.

6. WORKER PARTICIPATION IN DECISION-MAKING

Art 211. (g). To ensure the participation of workers in decision and policy-making processes affecting their rights, duties and welfare.

Art. 255. Exclusive bargaining representation and workers’ participation in policy and decision-making. The labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining. However, an individual employee or group of employees shall have the right at any time to present grievances to their employer. Any provision of law to the contrary notwithstanding, workers shall have the right, subject to such rules and regulations as the Secretary of Labor and Employment may promulgate, to participate in policy and decision-making processes of the establishment where they are employed insofar as said processes will directly affect their rights, benefits and welfare. For this purpose, workers and employers may form labor-management councils: Provided, That the representatives of the workers in such labor-management councils shall be elected by at least the majority of all employees in said establishment. (As amended by Section 22, Republic Act No. 6715, March 21, 1989)

Art. 277. Miscellaneous provisions. (g) The Ministry shall help promote and gradually develop, with the agreement of labor organizations and employers, labor-management cooperation programs at appropriate levels of the enterprise based on the shared responsibility and mutual respect in order to ensure industrial peace and improvement in productivity, working conditions and the quality of working life. (Incorporated by Batas Pambansa Bilang 130, August 21, 1981) (h) In establishments where no legitimate labor organization exists, labor-management committees may be formed voluntarily by workers and employers for the purpose of promoting industrial peace. The Department of Labor and Employment shall endeavor to enlighten and educate the workers and employers on their rights and responsibilities through labor education with emphasis on the policy thrusts of this Code. (As amended by Section 33, Republic Act No. 6715, March 21, 1989)

6. PHILIPPINE AIRLINES, INC. (PAL) VS. NLRC, LA ORTIGUERRA AND

PALEA (MELO: G.R. NO. 85985 AUGUST 13, 1993)

Whether management may be compelled to share with the union or its employees its prerogative of formulating a code of discipline

PAL asserts that when it revised its Code in 1985, there was no law which mandated the sharing of responsibility therefor between employer and employee. Indeed, it was only on March 2, 1989, with the approval of RA 6715 that amended Art 211 of the LC, that the law explicitly considered it a State policy "to ensure the participation of workers in decision and policy-making processes affecting the rights, duties and welfare." However, even in the absence of said clear provision of law, the exercise of management prerogatives was never considered boundless. It is circumscribed



by limitations found in law, a collective bargaining agreement, or the general principles of fair play and justice. Moreover, it must be duly established that the prerogative being invoked is clearly a managerial one. Indeed, industrial peace cannot be achieved if the employees are denied their just participation in the discussion of matters affecting their rights. Thus, even before Article 211 of the LC was amended by RA 6715, it was already declared a policy of the State, "(d) To promote the enlightenment of workers concerning their rights and obligations . . . as employees." While an "obligation" was not yet founded in law when the Code was formulated, the attainment of a harmonious labor-management relationship and the already existing state policy of enlightening workers concerning their rights as employees demand no less than the observance of transparency in managerial moves affecting employees' rights.

7. MANILA ELECTRIC COMPANY VS. QUISUMBING AND MERALCO

EMPLOYEES AND WORKERS ASSOCIATION (YNARES-SANTIAGO:

G.R. NO. 127598. FEBRUARY 22, 2000)

The employer is allowed to contract out services for six months or more. However, a line must be drawn between management prerogatives regarding business operations per se and those which affect the rights of employees, and in treating the latter, the employer should see to it that its employees are at least properly informed of its decision or modes of action in order to attain a harmonious labor-management relationship and enlighten the workers concerning their rights. Hiring of workers is within the employer’s inherent freedom to regulate and is a valid exercise of its management prerogative subject only to special laws and agreements on the matter and the fair standards of justice. The management cannot be denied the faculty of promoting efficiency and attaining economy by a study of what units are essential for its operation. It has the ultimate determination of whether services should be performed by its personnel or contracted to outside agencies. While there should be mutual consultation, eventually deference is to be paid to what management decides. Contracting out of services is an exercise of business judgment or management prerogative. Absent proof that management acted in a malicious or arbitrary manner, the Court will not interfere with the exercise of judgment by an employer. The law already sufficiently regulates this matter, and Jurisprudence also provides adequate limitations, such that the employer must be motivated by good faith and the contracting out should not be resorted to circumvent the law or must not have been the result of malicious or arbitrary actions.

7. WAGE FIXING

Art. 211. (b). To promote free trade unionism as an instrument for the enhancement of democracy and the promotion of social justice and development;

Art. 263. (g) When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return-to-work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary of Labor and Employment or the Commission may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with

such orders as he may issue to enforce the same. In line with the national concern for and the highest respect accorded to the right of patients to life and health, strikes and lockouts in hospitals, clinics and similar medical institutions shall, to every extent possible, be avoided, and all serious efforts, not only by labor and management but government as well, be exhausted to substantially minimize, if not prevent, their adverse effects on such life and health, through the exercise, however legitimate, by labor of its right to strike and by management to lockout. In labor disputes adversely affecting the continued operation of such hospitals, clinics or medical institutions, it shall be the duty of the striking union or locking-out employer to provide and maintain an effective skeletal workforce of medical and other health personnel, whose movement and services shall be unhampered and unrestricted, as are necessary to insure the proper and adequate protection of the life and health of its patients, most especially emergency cases, for the duration of the strike or lockout. In such cases, therefore, the Secretary of Labor and Employment may immediately assume, within twenty four (24) hours from knowledge of the occurrence of such a strike or lockout, jurisdiction over the same or certify it to the Commission for compulsory arbitration. For this purpose, the contending parties are strictly enjoined to comply with such orders, prohibitions and/or injunctions as are issued by the Secretary of Labor and Employment or the Commission, under pain of immediate disciplinary action, including dismissal or loss of employment status or payment by the locking-out employer of backwages, damages and other affirmative relief, even criminal prosecution against either or both of them. The foregoing notwithstanding, the President of the Philippines shall not be precluded from determining the industries that, in his opinion, are indispensable to the national interest, and from intervening at any time and assuming jurisdiction over any such labor dispute in order to settle or terminate the same.

Art. 99. Regional minimum wages. The minimum wage rates for agricultural and non-agricultural employees and workers in each and every region of the country shall be those prescribed by the Regional Tripartite Wages and Productivity Boards. (As amended by Section 3, Republic Act No. 6727, June 9, 1989).

Art. 124. Standards/Criteria for minimum wage fixing. The regional minimum wages to be established by the Regional Board shall be as nearly adequate as is economically feasible to maintain the minimum standards of living necessary for the health, efficiency and general well-being of the employees within the framework of the national economic and social development program. In the determination of such regional minimum wages, the Regional Board shall, among other relevant factors, consider the following: a.The demand for living wages; b.Wage adjustment vis-à-vis the consumer price index; c.The cost of living and changes or increases therein; d.The needs of workers and their families; e.The need to induce industries to invest in the countryside; f.Improvements in standards of living; g.The prevailing wage levels; h.Fair return of the capital invested and capacity to pay of employers; i.Effects on employment generation and family income; and j.The equitable distribution of income and wealth along the imperatives of

economic and social development. The wages prescribed in accordance with the provisions of this Title shall be the standard prevailing minimum wages in every region. These wages shall include wages varying with industries, provinces or localities if in the judgment of the Regional Board, conditions make such local differentiation proper and necessary to effectuate the purpose of this Title. Any person, company, corporation, partnership or any other entity engaged in business shall file and register annually with the appropriate Regional Board, Commission and the National Statistics Office, an itemized listing of their labor component, specifying the names of their workers and employees below the managerial level, including learners, apprentices and disabled/handicapped workers who were hired under the terms prescribed in the employment contracts, and their corresponding salaries and wages.



Where the application of any prescribed wage increase by virtue of a law or wage order issued by any Regional Board results in distortions of the wage structure within an establishment, the employer and the union shall negotiate to correct the distortions. Any dispute arising from wage distortions shall be resolved through the grievance procedure under their collective bargaining agreement and, if it remains unresolved, through voluntary arbitration. Unless otherwise agreed by the parties in writing, such dispute shall be decided by the voluntary arbitrators within ten (10) calendar days from the time said dispute was referred to voluntary arbitration. In cases where there are no collective agreements or recognized labor unions, the employers and workers shall endeavor to correct such distortions. Any dispute arising therefrom shall be settled through the National Conciliation and Mediation Board and, if it remains unresolved after ten (10) calendar days of conciliation, shall be referred to the appropriate branch of the National Labor Relations Commission (NLRC). It shall be mandatory for the NLRC to conduct continuous hearings and decide the dispute within twenty (20) calendar days from the time said dispute is submitted for compulsory arbitration. The pendency of a dispute arising from a wage distortion shall not in any way delay the applicability of any increase in prescribed wage rates pursuant to the provisions of law or wage order. As used herein, a wage distortion shall mean a situation where an increase in prescribed wage rates results in the elimination or severe contraction of intentional quantitative differences in wage or salary rates between and among employee groups in an establishment as to effectively obliterate the distinctions embodied in such wage structure based on skills, length of service, or other logical bases of differentiation. All workers paid by result, including those who are paid on piecework, takay, pakyaw or task basis, shall receive not less than the prescribed wage rates per eight (8) hours of work a day, or a proportion thereof for working less than eight (8) hours. All recognized learnership and apprenticeship agreements shall be considered automatically modified insofar as their wage clauses are concerned to reflect the prescribed wage rates. (As amended by Republic Act No. 6727, June 9, 1989)

8. LABOR INJUNCTION

Art. 254. Injunction prohibited. No temporary or permanent injunction or restraining order in any case involving or growing out of labor disputes shall be issued by any court or other entity, except as otherwise provided in Articles 218 and 264 of this Code. (As amended by Batas Pambansa Bilang 227, June 1, 1982)

Art. 218. Powers of the Commission. (e) To enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts or to require the performance of a particular act in any labor dispute which, if not restrained or performed forthwith, may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party: Provided, That no temporary or permanent injunction in any case involving or growing out of a labor dispute as defined in this Code shall be issued except after hearing the testimony of witnesses, with opportunity for cross-examination, in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and only after a finding of fact by the Commission, to the effect: 1. That prohibited or unlawful acts have been threatened and will be committed and will be continued unless restrained, but no injunction or temporary restraining order shall be issued on account of any threat, prohibited or unlawful act, except against the person or persons, association or organization making the threat or committing the prohibited or unlawful act or actually authorizing or ratifying the same after actual knowledge thereof; 2. That substantial and irreparable injury to complainant’s property will follow; 3. That as to each item of relief to be granted, greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by the granting of relief; 4. That complainant has no adequate remedy at law; and 5. That the public officers charged with the duty to protect complainant’s

property are unable or unwilling to furnish adequate protection. Such hearing shall be held after due and personal notice thereof has been served, in such manner as the Commission shall direct, to all known persons against whom relief is sought, and also to the Chief Executive and other public officials of the province or city within which the unlawful acts have been threatened or committed, charged with the duty to protect complainant’s property: Provided, however, that if a complainant shall also allege that, unless a temporary restraining order shall be issued without notice, a substantial and irreparable injury to complainant’s property will be unavoidable, such a temporary restraining order may be issued upon testimony under oath, sufficient, if sustained, to justify the Commission in issuing a temporary injunction upon hearing after notice. Such a temporary restraining order shall be effective for no longer than twenty (20) days and shall become void at the expiration of said twenty (20) days. No such temporary restraining order or temporary injunction shall be issued except on condition that complainant shall first file an undertaking with adequate security in an amount to be fixed by the Commission sufficient to recompense those enjoined for any loss, expense or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs, together with a reasonable attorney’s fee, and expense of defense against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the Commission. The undertaking herein mentioned shall be understood to constitute an agreement entered into by the complainant and the surety upon which an order may be rendered in the same suit or proceeding against said complainant and surety, upon a hearing to assess damages, of which hearing, complainant and surety shall have reasonable notice, the said complainant and surety submitting themselves to the jurisdiction of the Commission for that purpose. But nothing herein contained shall deprive any party having a claim or cause of action under or upon such undertaking from electing to pursue his ordinary remedy by suit at law or in equity: Provided, further, That the reception of evidence for the application of a writ of injunction may be delegated by the Commission to any of its Labor Arbiters who shall conduct such hearings in such places as he may determine to be accessible to the parties and their witnesses and shall submit thereafter his recommendation to the Commission. (As amended by Section 10, Republic Act No. 6715, March 21, 1989)

Art. 264. Prohibited activities. a.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.

b.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.

c.No employer shall use or employ any strike-breaker, nor shall any person be employed as a strike-breaker.

d.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)

e.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)

RA 8791. Section 22. Strikes and Lockouts. - The banking industry is hereby declared as indispensable to the national interest and, notwithstanding the provisions of any law to the contrary, any strike or lockout involving banks, if unsettled after seven (7) calendar days shall be reported by the Bangko Sentral to the secretary of Labor who may assume jurisdiction over the dispute or decide it or certify the sane to the National Labor Relations Commission for compulsory arbitration. However, the President of the Philippines may at any time intervene and assume jurisdiction over such labor dispute in order to settle or terminate the same.

9. TRIPARTISM

Art. 275. Tripartism and tripartite conferences. Tripartism in labor relations is hereby declared a State policy. Towards this end, workers and employers shall, as far as practicable, be represented in decision and policy-making bodies of the government. The Secretary of Labor and Employment or his duly authorized representatives may, from time to time, call a national, regional, or industrial tripartite conference of representatives of government, workers and employers for the consideration and adoption of voluntary codes of principles designed to promote industrial peace based on social justice or to align labor movement relations with established priorities in economic and social development. In calling such conference, the Secretary of Labor and Employment may consult with accredited representatives of workers and employers. (As amended by Section 32, Republic Act No. 6715, March 21, 1989)

DEFINITION OF TERMS 1. STATUTORY REFERENCE – 212, SEC 1 BOOK V IMPLEMENTING RULES

Article. 212. Definitions. - (a) "Commission" means the National Labor Relations Commission or any of its divisions, as the case may be, as provided under this Code. (b) "Bureau" means the Bureau of Labor Relations and/or theLabor Relations Divisions in the regional offices established under Presidential Decree No. 1, in the Department of Labor. (c) "Board" means the National Conciliation and Mediation Board established under Executive Order No. 126. (d) "Council" means the Tripartite Voluntary Arbitration Advisory Council established under Executive Order No. 126, as amended. (e) "Employer" includes any person acting in the interest of an employer, directly or indirectly. The term shall not include anylabor organization or any of its officers or agents except when acting as employer. (f) "Employee" includes any person in the employ of an employer. The term shall not be limited to the employees of a particular employer, unless the Code so explicitly states. It shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent and regular employment. (g) "Labor organization" means any union or association of employees which exists in whole or in part for the purpose of collective bargaining or of dealing with employers concerning terms and conditions of employment. (h) "Legitimate labor organization" means any labor organization duly registered with the Department of Labor and Employment, and includes any branch or local thereof.

(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. (j) "Bargaining representative" means a legitimate labororganization whether or not employed by the employer. (k) "Unfair labor practice" means any unfair labor practice as expressly defined by the Code. (l) "Labor dispute" includes any controversy or matter concerning 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. (m) "Managerial employee" is one who is vested with the powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees. Supervisory employees are those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. All employees not falling within any of the above definitions are considered rank-and-file employees for purposes of this Book. (n) "Voluntary Arbitrator" means any person accredited by the Board as such or any person named or designated in the Collective Bargaining Agreement by the parties to act as their Voluntary Arbitrator, or one chosen with or without the assistance of the National Conciliation and Mediation Board, pursuant to a selection procedure agreed upon in the Collective Bargaining Agreement, or any official that may be authorized by the Secretary of Labor and Employment to act as Voluntary Arbitrator upon the written request and agreement of the parties to a labor dispute. (o) "Strike" means any temporary stoppage of work by the concerted action of employees as a result of an industrial orlabor dispute. (p) "Lockout" means any temporary refusal of an employer to furnish work as a result of an industrial or labor dispute. (q) "Internal union dispute" includes all disputes or grievances arising from any violation of or disagreement over any provision of the constitution and by laws of a union, including any violation of the rights and conditions of union membership provided for in this Code. (r) "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. (s) "Strike area" means the establishment, warehouses, depots, plants or offices, including the sites or premises used as runaway shops, of the employer struck against, as well as the immediate vicinity actually used by picketing strikers in moving to and fro before all points of entrance to and exit from said establishment. (As amended by Section 4, Republic Act No. 6715, March 21, 1989).

2. SIGNIFICANCE – ME ANS AND INCLUDES

8. FEATI UNIVERSITY VS. BAUTISTA AND FEATI UNIVERSITY FACULTY

CLUB-PAFLU (ZALDIVAR: G.R. NO. L-21278, DECEMBER 27, 1966) We find no merit in this claim in the University's claims that it is not an employer within the contemplation of Republic Act No. 875, because it is not an industrial establishment. It will be noted that in defining the term "employer" the Act uses the word "includes", which it also used in defining "employee". [Sec. 2 (d)], and "representative" [Sec. 2(h)]; and not the word "means" which the Act uses in defining the terms "court" [Sec. 2(a)], "labor organization" [Sec. 2(e)], "legitimate labor organization [Sec. 2(f)], "company union" [Sec. 2(g)], "unfair labor practice" [Sec. 2(i)], "supervisor" [Sec. 2(k)], "strike" [Sec. 2(l)] and "lock-out" [Sec. 2(m)]. A methodical variation in terminology is manifest. This variation and distinction in terminology and phraseology cannot be presumed to have been the inconsequential product of an oversight; rather, it must have been the result of a deliberate and purposeful act, more so when we consider that as legislative records show, Republic Act No. 875 had been meticulously and painstakingly drafted and deliberated upon. In using the word "includes" and not "means", Congress did not intend



to give a complete definition of "employer", but rather that such definition should be complementary to what is commonly understood as employer. Congress intended the term to be understood in a broad meaning because, firstly, the statutory definition includes not only "a principal employer but also a person acting in the interest of the employer"; and, secondly, the Act itself specifically enumerated those who are not included in the term "employer", namely: (1) a labor organization (otherwise than when acting as an employer), (2) anyone acting in the capacity of officer or agent of such labor organization [Sec. 2(c)], and (3) the Government and any political subdivision or instrumentality thereof insofar as the right to strike for the purpose of securing changes or modifications in the terms and conditions of employment is concerned (Section 11). Among these statutory exemptions, educational institutions are not included; hence, they can be included in the term "employer". This Court, however, has ruled that those educational institutions that are not operated for profit are not within the purview of Republic Act No. 875. 3. COMMON TERMS

A. EMPLOYER

Article 212. (e) "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.


CLUB-PAFLU (ZALDIVAR: G.R. NO. L-21278, DECEMBER 27, 1966)

Republic Act No. 875 does not give a comprehensive but only a complementary definition of the term "employer". The term encompasses those that are in ordinary parlance "employers." What is commonly meant by "employer"? The term "employer" has been given several acceptations. The lexical definition is "one who employs; one who uses; one who engages or keeps in service;" and "to employ" is "to provide work and pay for; to engage one's service; to hire." The Workmen's Compensation Act defines employer as including "every person or association of persons, incorporated or not, public or private, and the legal representative of the deceased employer" and "includes the owner or lessee of a factory or establishment or place of work or any other person who is virtually the owner or manager of the business carried on in the establishment or place of work but who, for reason that there is an independent contractor in the same, or for any other reason, is not the direct employer of laborers employed there." The Minimum Wage Law states that "employer includes any person acting directly or indirectly in the interest of the employer in relation to an employee and shall include the Government and the government corporations". The Social Security Act defines employer as "any person, natural or juridical, domestic or foreign, who carries in the Philippines any trade, business, industry, undertaking, or activity of any kind and uses the services of another person who is under his orders as regards the employment, except the Government and any of its political subdivisions, branches or instrumentalities, including corporations owned or controlled by the Government."

In The Angat River Irrigation System, et al. vs. Angat River Workers' Union (PLUM), the term employer is defined as follows:

An employer is one who employs the services of others; one for whom employees work and who pays their wages or salaries (Black Law Dictionary, 4th ed., p. 618). An employer includes any person acting in the interest of an employer, directly or indirectly (Sec. 2-c, Rep. Act 875).

Under none of the above definitions may the University be excluded, especially so if it is considered that every professor,

instructor or teacher in the teaching staff of the University, as per allegation of the University itself, has a contract with the latter for teaching services, albeit for one semester only. The University engaged the services of the professors, provided them work, and paid them compensation or salary for their services. Even if the University may be considered as a lessee of services under a contract between it and the members of its Faculty, still it is included in the term "employer". "Running through the word `employ' is the thought that there has been an agreement on the part of one person to perform a certain service in return for compensation to be paid by an employer. When you ask how a man is employed, or what is his employment, the thought that he is under agreement to perform some service or services for another is predominant and paramount."

10. NYK INTERNATIONAL KNITWEAR AND/OR CATHY NG VS. NLRC AND

PUBLICO (QUISUMBING: G.R. NO. 146267, FEBRUARY 17, 2003)

Anent petitioners’ assertion that they cannot be solidarily liable in this case as there was no malice or bad faith on their part has no leg to stand on. What the Court finds apropos is our disquisition in A.C. Ransom Labor Union-CCLU v. NLRC, which held that since a corporation is an artificial person, it must have an officer who can be presumed to be the employer, being the "person acting in the interest of the employer." In other words the corporation, in the technical sense only, is the employer.

In this case Cathy Ng, admittedly, is the manager of NYK. Conformably with our ruling in A. C. Ransom, she falls within the meaning of an "employer" as contemplated by the Labor Code, who may be held jointly and severally liable for the obligations of the corporation to its dismissed employees. Pursuant to prevailing jurisprudence, Cathy Ng, in her capacity as manager and responsible officer of NYK, cannot be exonerated from her joint and several liability in the payment of monetary award to private respondent.

11. ALLIED FREE WORKERS' UNION (PLUM) VS. COMPAÑIA

MARITIMA, TEVES, AND CIR (BENGZON, J.P. : G.R. NOS. L-22951

AND L-22952; JANUARY 31, 1967

The facts strongly indicate that it is AFWU itself who is the "employer" of those laborers. It was AFWU, through its officers, which (1) selected and hired the laborers, (2) paid their wages, (3) exercised control and supervision over them, and (4) had the power to discipline and dismiss them. These are the very elements constituting an employer-employee relationship.

There is no legal impediment for a union to be an "employer". Under the particular facts of this case, however, AFWU appears to be more of a distinct and completely autonomous business group or association. Its organizational structure and operational system is no different from other commercial entities on the same line. It even has its own bill collectors and trucking facilities. And that it really is engaged in business is shown by the fact that it had arrastre and stevedoring contracts with other shipping firms in Iligan City.

B. EMPLOYEE

Art212. "Employee" includes any person in the employ of an employer. The term shall not be limited to the employees of a particular employer, unless the Code so explicitly states. It shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent and regular employment.



12. PRODUCERS BANK OF THE PHILIPPINES VS. NLRC AND

PRODUCERS BANK EMPLOYEES ASSOCIATION (ROMERO: G.R. NO. 118069, NOVEMBER 16, 1998)

Producers Bank asserts since the employees have retired, as a consequence of which no employee-employer relationship exists anymore between it and the employees, the Union no longer had the personality to file the complaint for them. This contention is untenable. Retirement results from a voluntary agreement between the employer and the employee whereby the latter after reaching a certain age agrees to sever his employment with the former. The very essence of retirement is the termination of the employer-employee relationship. Hence, the retirement of an employee does not, in itself, affect his employment status especially when it involves all rights and benefits due to him, since these must be protected as though there had been no interruption of service. It must be borne in mind that the retirement scheme was part of the employment package and the benefits to be derived herefrom constituted, as it were, a continuing consideration for services rendered, as well as an effective inducement for remaining with the corporation. It is intended to help the employee enjoy the remaining years of his life, releasing him from the burden of worrying for his financial support, and are a form of reward for his loyalty. When the retired employees were requesting that their retirement benefits be granted, they were not pleading for generosity but were merely demanding that their rights, as embodied in the CBA, be recognized. Thus, when an employee has retired but his benefits under the law or the CBA have not yet been given, he still retains, for the purpose of prosecuting his claims, the status of an employee entitled to the protection of the Labor Code, one of which is the protection of the labor union. In Esso Philippines, Inc. vs. Malayang Manggagawa sa Esso, we recognized that while the individual complainants are the real party in interest in issues involving monetary claims and benefits, the union, however, is not denied its right to sue on behalf of its members: “We see no legal impediments to considering this particular matter of retirement benefits to be within the ambit of Our consistent holding that when it comes to individual benefits accruing to members of a union from a favorable final judgment of any court, the members themselves become the real parties in interest and it is for them, rather than for the union, to accept or reject individually the fruits of the litigation. In the case at bar, the representations of the Union which may result in prejudice to the interests of any of its individual members in the final judgment being sought to be executed should yield to the individual decisions of the said members themselves, who are free to choose whichever position suits their conscience.” 13. PHILIPPINE AIR LINES, INC. VS. PHILIPPINE AIR LINES EMPLOYEES

ASSOCIATION AND COURT OF INDUSTRIAL RELATIONS

(CONCEPCION: G.R. NO. L-21120, FEBRUARY 28, 1967) Insofar as the Christmas bonus, the accumulated sick leave privileges and the transportation allowance during the lay-off period, the PAL’s contention is clearly devoid of merit. The aforementioned clause must be considered in the light of the entire context of the resolution of July 13, 1954 and of its dispositive part. In ordering therein the “reinstatement” of said employees with “back wages from the date of their dismissal to the date of their reinstatement, and without prejudice to their seniority or other rights and privileges”, it is obvious that the resolution intended to restore the employees to their status immediately prior to their dismissal. Hence, it directed, not only their reinstatement, but, also, the payment of their back wages during the period of their lay-off — thus referring necessarily to a period of time preceding their reinstatement — and the retention of “their seniority or other rights and privileges”. Rights and privileges at what time?

Certainly, not after their reinstatement, but at the time of their aforementioned dismissal. In other words, the reinstatement was with back wages for the lay-off period, coupled with the “seniority or other rights and privileges”, attached to the status of the employees when they were dismissed. To put it differently, the CIR treated said employees as if they had not been absent from work and had been uninterruptedly working during the lay-off period.

C. LABOR ORGANIZATION

"Labor organization" means any union or association of employees which exists in whole or in part for the purpose of collective bargaining or of dealing with employers concerning terms and conditions of employment.

14. AIR LINE PILOTS ASSOCIATION OF THE PHILIPPINES (GASTON

GROUP) VS. CIR AND AIR LINES PILOTS ASSOCIATION OF THE

PHILIPPINES (GOMEZ GROUP) (CASTRO: G.R. NO. L-33705 APRIL

15, 1977) This Court cannot subcribe to the restrictive interpretation made by the court below of the term "labor organization," which Section 2(e) of R.A. 875 defines as any union or association of employees which exist, in whole or in part, for the purpose of the collective bargaining or dealing with employers concerning terms and conditions of employment." The absence of the condition which the court below would attach to the statutory concept of a labor organization, as being limited to the employees of particular employer, is quite evident from the law. The emphasis of Industrial Peace Act is clearly on the pourposes for which a union or association of employees established rather than that membership therein should be limited only to the employees of a particular employer. Trite to say, under Section 2(h) of R.A 875 "representative" is define as including "a legitimate labor organization or any officer or agent of such organization, whether or not employed by the employer or employeewhom he represents." It cannot be overemphasized likewise that labor dispute can exist "regardless of whether the disputants stand in the proximate relation of employer and employee. (Section 2(j), R.a. 875).

D. LEGITIMATE LABOR ORGANIZATION

"Legitimate labor organization" means any labor organization duly registered with the Department of Labor and Employment, and includes any branch or local thereof.

15. CEBU SEAMEN'S ASSOCIATION, INC. VS. CALLEJA, SEAMEN'S

ASSOCIATION OF THE PHILS./DOMINICA C. NACUA

(MEDIALDEA: G.R. NO. 83190, AUGUST 4, 1992) A group of deck officers organized the Cebu Seamen's Association, Inc., (CSAI), a non-stock corporation, and registered it with the SEC. The same group registered the organization with the BLR as Seamen's Association of the Philippines (SAPI). It is the registration of the organization with the BLR, and not with the SEC, which made it a legitimate labor organization with rights and privileges granted under the Labor Code. The BLR correctly ruled that SAPI, the legitimate labor union, registered with its office, is not the same association as CSAI, the corporation, insofar as their rights under the Labor Code are concerned. Hence, the former and not the latter association is entitled to the release and custody of union fees with Aboitiz Shipping and other shipping companies with whom it had an existing CBA.

E. COMPANY UNION



"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.

Article 248. Unfair labor practices of employers. – It shall be unlawful for an employer to commit any of the following unfair labor practice: (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;

F. LABOR DISPUTE

"Labor dispute" includes any controversy or matter concerning 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.


CLUB-PAFLU (ZALDIVAR: G.R. NO. L-21278, DECEMBER 27, 1966) The test of whether a controversy comes within the definition of "labor dispute" depends on whether the controversy involves or concerns "terms, tenure or condition of employment" or "representation." The facts show that the controversy between the University and the Faculty Club involved terms and conditions of employment, and the question of representation. Hence, there was a labor dispute between the University and the Faculty Club, as contemplated by Republic Act No. 875.

17. NESTLÉ PHILIPPINES, INC. VS. NLRC, NUNEZ, VILLANUEVA, VILLENA, ARMAS, KUA AND SOLIDUM (GRIÑO-AQUINO: G.R. NO.

85197 MARCH 18, 1991) The respondents alleged that there is a labor dispute between them and Nestle, and that their default in paying the amortizations for their cars was brought about by their illegal dismissal from work by the petitioner as punishment for their participation in the illegal strike. If they had not participated in the strike, they would not have been dismissed from work and they would not have defaulted in the payment of their amortizations. Paragraph (1) of Article 212 of the Labor Code defines a labor dispute. Nestlé's demand for payment of the private respondents' amortizations on their car loans, or, in the alternative, the return of the cars to the company, is not a labor, but a civil, dispute. It involves debtor-creditor relations, rather than employee-employer relations.

18. SAN MIGUEL CORPORATION EMPLOYEES UNION-PTGWO VS. BERSAMIRA AND SAN MIGUEL CORPORATION (MELENCIO-

HERRERA: G.R. NO. 87700, JUNE 13, 1990)

While it is SanMig's submission that no employer-employee relationship exists between itself, on the one hand, and the contractual workers of Lipercon and D'Rite on the other, a labor dispute can nevertheless exist "regardless of whether the disputants stand in the proximate relationship of employer and employee" provided the controversy concerns, among others, the terms and conditions of employment or a "change" or "arrangement" thereof. Put differently, and as defined by law, the existence of a labor dispute is not negatived by the fact that the plaintiffs and defendants do not stand in the proximate relation of employer and employee. That a labor dispute, as defined by the law, does exist herein is evident. At bottom, what the Union seeks is to regularize the status of the employees contracted by Lipercon and D'Rite in effect, that they be absorbed into the working unit of SanMig. This matter definitely dwells on the working relationship

between said employees vis-a-vis SanMig. Terms, tenure and conditions of their employment and the arrangement of those terms are thus involved bringing the matter within the purview of a labor dispute. Further, the Union also seeks to represent those workers, who have signed up for Union membership, for the purpose of collective bargaining. SanMig, for its part, resists that Union demand on the ground that there is no employer-employee relationship between it and those workers and because the demand violates the terms of their CBA. Obvious then is that representation and association, for the purpose of negotiating the conditions of employment are also involved. In fact, the injunction sought by SanMig was precisely also to prevent such representation. Again, the matter of representation falls within the scope of a labor dispute. Neither can it be denied that the controversy below is directly connected with the labor dispute already taken cognizance of by the NCMB-DOLE.

Whether or not the Union demands are valid; whether or not SanMig's contracts with Lipercon and D'Rite constitute "labor-only" contracting and, therefore, a regular employer-employee relationship may, in fact, be said to exist; whether or not the Union can lawfully represent the workers of Lipercon and D'Rite in their demands against SanMig in the light of the existing CBA; whether or not the notice of strike was valid and the strike itself legal when it was allegedly instigated to compel the employer to hire strangers outside the working unit; — those are issues the resolution of which call for the application of labor laws, and SanMig's cause's of action in the Court below are inextricably linked with those issues.

PART 2: WORKER RIGHT TO SELF-ORGANIZATION

1. BASIS OF RIGHT

19. S.S VENTURES INTERNATIONAL V S.S VENTURES LABOR UNION (2008) The right to form, join, or assist a union is specifically protected by Art. XIII, Section 3 of the Constitution and such right, according to Art. III, Sec. 8 of the Constitution and Art. 246 of the Labor Code, shall not be abridged. Once registered with the DOLE, a union is considered a legitimate labor organization endowed with the right and privileges granted by law to such organization. While a certificate of registration confers a union with legitimacy with the concomitant right to participate in or ask for certification election in a bargaining unit, the registration may be canceled or the union may be decertified as the bargaining unit, in which case the union is divested of the status of a legitimate labor organization. The Court said that to decertify a union it is not enough to show that the union includes ineligible employees in its membership. It must also be shown that there was misrepresentation, false statement, or fraud in connection with the application for registration and the supporting documents, such as the adoption or ratification of the constitution and by-laws or amendments thereto and the minutes of ratification of the constitution or by-laws, among other documents. A. CONSTITUTION

1987 Constitution Art III Sec. 8 The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. 1987 Constitution Art XIII Sec. 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 on investments and to expansion and growth. 1935 Constitution Art III Sec. 6 The right to form associations or societies for purposes not contrary to law shall not be abridged. 1973 Constitution Art IV Sec. 7 The right to form associations or societies for purposes not contrary to law shall not be abridged.

B. STATUTORY

Art 243. Coverage and Employees Right to Self-Organization. All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions, whether operating for profit or not, shall have the right to self-organization and to form, join, or assist labor organizations of their own choosing for purposes of collective bargaining. Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers may form labor organizations for their mutual aid and protection. Art 244 Right of Employees in the Public Service. Employees of government corporations established under the Corporation Code shall have the right to organize and bargain collectively with their respective employers. All other employees in the civil service shall have the right to form associations for purposes not contrary to law. Art 245 Ineligibility of Managerial Employees to Join any Labor Organization; Right of Supervisory Employees. Managerial employees are not eligible to join, assist or form any labor organization. Supervisory employees shall not be eligible for membership in the collective bargaining unit of the rank-and-file employees but may join, assist or form separate collective bargaining units and/or legitimate labor organizations of their own. The rank and file union and the supervisors’ union operating within the same establishment may join the same federation or national union. Art 269 Prohibition Against Aliens; Exceptions.. All aliens, natural or juridical, as well as foreign organizations are strictly prohibited from engaging directly or indirectly in all forms of trade union activities without prejudice to normal contacts between Philippine labor unions and recognized international labor centers. Provided, however, that aliens working in the country with valid permits issued by the Department of Labor and Employment, may exercise the right to self-organization and join or assist labor organizations of their own choosing for purposes of collective bargaining. Provided, further, That said aliens are nationals of a country which grants the same or similar rights to Filipino workers.

20. UST FACULTY UNION V BITONIO (1999)

Self-organization is a fundamental right guaranteed by the Philippine Constitution and the Labor Code. Employees have the right to form, join or assist labor organizations for the purpose of collective bargaining or for their mutual aid and protection. Whether employed for a definite period or not, any employee shall

be considered as such, beginning on his first day of service, for purposes of membership in a labor union.

Corollary to this right is the prerogative not to join, affiliate with or assist a labor union. Therefore, to become a union member, an employee must, as a rule, not only signify the intent to become one, but also take some positive steps to realize that intent.

21. NATIONAL UNION OF BANK EMPLOYEES V MINSTER OF LABOR (1981)

Section 7, Article IV of the Philippine Constitution provides that the right to form associations or societies for purposes not contrary to law shall not be abridged. This right is more pronounced in the case of labor. Section 9, Article II specifically declares that the State shall assure the rights of workers to self-organization, collective bargaining, security of tenure and just and humane conditions of work. Such constitutional guarantees should not be lightly taken much less easily nullified. A healthy respect for the freedom of association demands that acts imputable to officers or members be not easily visited with capital punishments against the association itself" C. UNIVERSAL DECLARATION OF HUMAN RIGHTS

PREAMBLE Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous

acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,

Whereas it is essential to promote the development of friendly relations between nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,

Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,

Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

Article 2. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.



International Covenant on Economic, Social and Cultural Rights

Article 2

1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

3. Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.

Article 8

1. The States Parties to the present Covenant undertake to ensure:

(a) The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;

International Covenant on Civil and Political Rights

Article 22

1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.

3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention.

ILO Convention No. 87

Article 2. Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization.

Article 11. Each Member of the International Labour Organization for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organize.

22. STANDARD CHARTERED BANK OF EMPLOYEES UNION V CONFESSOR

Under the International Labor Organization Convention (ILO) No. 87 FREEDOM OF ASSOCIATION AND PROTECTION OF THE RIGHT TO ORGANIZE to which the Philippines is a signatory, "workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization

concerned, to job organizations of their own choosing without previous authorization."

42

Workers’ and employers’ organizations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom to organize their administration and activities and to formulate their programs.

If an employer interferes in the selection of its negotiators or coerces the Union to exclude from its panel of negotiators a representative of the Union, and if it can be inferred that the employer adopted the said act to yield adverse effects on the free exercise to right to self-organization or on the right to collective bargaining of the employees, ULP under Article 248(a) in connection with Article 243 of the Labor Code is committed.

II. WORKER QUALIFICATION AND REQUIRED ACTION --- CONSTITUTION AND BY-

LAW

23. UST FACULTY UNION V BITONIO (IN RELATION TO ARTICLE 277 C OF THE LC) Self-organization is a fundamental right guaranteed by the Philippine Constitution and the Labor Code. Employees have the right to form, join or assist labor organizations for the purpose of collective bargaining or for their mutual aid and protection. Whether employed for a definite period or not, any employee shall be considered as such, beginning on his first day of service, for purposes of membership in a labor union. III. EXTENT AND SCOPE OF RIGHT

Art 243. Coverage and Employees Right to Self-Organization. All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions, whether operating for profit or not, shall have the right to self-organization and to form, join, or assist labor organizations of their own choosing for purposes of collective bargaining. Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers may form labor organizations for their mutual aid and protection. Art 246. Non-abridgment of right to self-organization. - It shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with employees and workers in their exercise of the right to self-organization. Such right shall include the right to form, join, or assist labor organizations for the purpose of collective bargaining through representatives of their own choosing and to engage in lawful concerted activities for the same purpose or for their mutual aid and protection, subject to the provisions of Article 264 of this Code.

24. HERITAGE HOTEL V PINAGISANG (2009)

The charge that a labor organization committed fraud and misrepresentation in securing its registration is a serious charge and deserves close scrutiny. It is serious because once such charge is proved, the labor union acquires none of the rights accorded to registered organizations. Consequently, charges of this nature should be clearly established by evidence and the surrounding circumstances.

On the charge of dual unionism, the fact that some of respondent PIGLAS union’s members were also members of the old rank and file union, the HHE union, is not a ground for cancelling the new union’s registration. The right of any person to join an organization also includes the right to leave that organization and join another one.

25. REYES V TRAJANO (1992)

Guaranteed to all employees or workers is the "right to self-organization and to form, join, or assist labor organizations of their



own choosing for purposes of collective bargaining." This is made plain by no less than three provisions of the Labor Code of the Philippines, Articles 243, 248 and Omnibus Rules of the LC Rule II Sec. 1.

Logically, the right NOT to join, affiliate with, or assist any union, and to disaffiliate or resign from a labor organization, is subsumed in the right to join, affiliate with, or assist any union, and to maintain membership therein. The right to form or join a labor organization necessarily includes the right to refuse or refrain from exercising said right. It is self-evident that just as no one should be denied the exercise of a right granted by law, so also, no one should be compelled to exercise such a conferred right. The fact that a person has opted to acquire membership in a labor union does not preclude his subsequently opting to renounce such membership.

26. PAN-AMERICAN WORLD AIRWAYS INC V. PAN-AMERICAN EMPLOYEES

ASSOCIATION (1969)

There is both a constitutional and statutory recognition that laborers have the right to form unions to take care of their interests vis-a-vis their employers. Their freedom organizations would be rendered nugatory if they could not choose their own leaders to speak on their behalf and to bargain for them.

If petitioner were to succeed in their unprecedented demand, the laborers in this particular union would thus be confronted with the sad spectacle of the leaders of their choice condemned as irresponsible, possibly even constituting a menace to the operations of the enterprise. That is an indictment of the gravest character, devoid of any factual basis. What is worse, the result, even if not intended, would be to call into question their undeniable right to choose their leaders, who must be treated as such with all the respect to which they are legitimately entitled. The fact that they would be paid but not be allowed to work is, to repeat, to add to the infamy that would thus attach to them necessarily, but to respondent union equally.

27. UNION OF SUPERVISORS (RB) – NATU V SEC. OF LABOR (1981)

Luna’s protests could be treated as union activity by the Industrial Peace Act, which assures the employees' right "to self-organization and to form, join or assist labor organizations of their own choosing and to engage in concerted activities for the purpose of collective bargaining and other mutual aid and protection ... " (Sec. 3, Rep. Act 875). His actuations as such should therefore be considered as legitimate exercise of the employees' right to self-organization and as an activity for their mutual aid and protection, aside from being privileged communication protected by the constitutional guarantee on free speech. IV. WORKERS WITH RIGHT OF SELF-ORGANIZATION

1987 Constitution Art III Sec. 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. 1987 Constitution Art XIII Sec. 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 on investments and to expansion and growth.

A. ALL EMPLOYEES

Art. 243. Coverage and employees’ right to self-organization. All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions, whether operating for profit or not, shall have the right to self-organization and to form, join, or assist labor organizations of their own choosing for purposes of collective bargaining. Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers may form labor organizations for their mutual aid and protection. (As amended by Batas Pambansa Bilang 70, May 1, 1980) Art. 212. Definitions. (f) "Employee" includes any person in the employ of an employer. The term shall not be limited to the employees of a particular employer, unless the Code so explicitly states. It shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent and regular employment.

1. NON-PROFIT ORGANIZATION

28. FEU-DR. NICANOR REYES MEDICAL FOUNDATION, INC. VS. TRAJANO

Article 244 was already amended by BP Blg 70, which added the phrase “whether operating for profit or not”. Under the Art. 244, there is no doubt that rank and file employees of non-profit medical institutions are now permitted to form, organize or join labor unions of their choice for purposes of collective bargaining.

B. MEMBERS – RELIGIOUS GROUP

29. VICTORIANO VS. ELIZALDE WORKERS UNION [RA 3350] was intended to serve the secular purpose of advancing the constitutional right to the free exercise of religion, by averting a situation where certain persons be refused work, or be dismissed from work, or be dispossessed of their right to work and of being impeded to pursue a modest means of livelihood, by reason of union security agreements. The freedom of association also means freedom not to associate.

30. KAPATIRAN SA MEAT AND CANNING DIVISION VS. CALLEJA The right of members of the Iglesia ni Kristo sect not to join a labor union for being contrary to their religious beliefs, does not bar the members of that sect from forming their own union. C. GOVERNMENT CORPORATION EMPLOYEES

Art. 244. Right of employees in the public service. Employees of government corporations established under the Corporation Code shall have the right to organize and to bargain collectively with their respective employers. All other employees in the civil service shall have the right to form associations for purposes not contrary to law. (As amended by Executive Order No. 111, December 24, 1986)

D. SUPERVISORS



Art. 245. Ineligibility of managerial employees to join any labor organization; right of supervisory employees. Managerial employees are not eligible to join, assist or form any labor organization. Supervisory employees shall not be eligible for membership in a labor organization of the rank-and-file employees but may join, assist or form separate labor organizations of their own. (As amended by Section 18, Republic Act No. 6715, March 21, 1989) Art. 212. Definitions. (m) "Managerial employee" is one who is vested with the powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees. Supervisory employees are those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. All employees not falling within any of the above definitions are considered rank-and-file employees for purposes of this Book.

1. TEST

31. PAPER INDUSTRIES CORPORATION VS. LAGUESMA As held in United Pepsi-Cola Supervisory Union vs. Laguesma, “managers” are divided into three: top-level managers, middle managers, and first-line managers. Top and Middle Managers have the authority to devise, implement and control strategic and operational policies while the task of First-Line Managers is simply to ensure that such policies are carried out by the rank-and-file employees of an organization. Under this distinction, “managerial employees” therefore fall in two (2) categories, namely: 1.The “managers” per se composed of Top and Middle Managers, and; 2. the “supervisors” composed of First-Line Managers. The mere fact that an employee is designated as a “manager” does not make him one. Designations should be reconciled with the actual job description.

32. SAMSON VS. NLRC

The dismissal of the petitioner in this case is not justified on ground of loss of confidence, as this ground is restricted to managerial employees. The job description of the petitioner does not contain the power to lay down policies not to hire, transfer, suspend, lay off, recall, discharge, assign, or discipline employees. Instead, his function includes only efficient planning, auditing and control, and “management functions” translated to directing the activities of Med Reps.

33. TAGAYTAY HIGHLANDS VS. TAGAYTAY HIGHLANDS

While Article 245 expressly prohibits supervisory employees from joining a rank-and-file union, it does not provide what would be the effect if a rank-and-file union counts supervisory employees as members. After a certificate of registration is issued to a union, its legal personality cannot be subject to collateral attack. It may be questioned only in an independent petition for cancellation in accordance with Section 5 of Rule V, Book IV of the "Rules to Implement the Labor Code" (Implementing Rules), which section reads:

5.Effect of registration. The labor organization or workers' association shall be deemed registered and vested with legal personality on the date of issuance of its certificate of registration. Such legal personality cannot thereafter be subject to collateral attack, but may be questioned only in an independent petition for cancellation in accordance with these Rules.

The inclusion in a union of disqualified employees is not among the grounds for cancellation, unless such inclusion is due to misrepresentation, false statement or fraud under the

circumstances enumerated in Sections (a) and (c) of Article 239 of above-quoted Article 239 of the Labor Code.

2. RIGHT

34. UNITED PEPSI COLA VS. LAGUESMA When read in relation to this definition in Art. 212(m), it will be seen that Art. 245 faithfully carries out the intent of the Constitutional Commission in framing Art. III, Section 8 of the fundamental law. Nor is the guarantee of organizational right in Art. III, Section 8 infringed by a ban against managerial employees forming a union. The right guaranteed in Art. III, Section 8 is subject to the condition that its exercise should be for purposes "not contrary to law."

35. FILOIL REFINERY CORP. VS. FILOIL SUPERVISORY AND CONFIDENTIAL

EMPLOYEES ASSOCIATION It is well settled that “in relation to his employer,” a foreman or supervisor “is an employee within the meaning of the *Industrial Peace Act+.” For this reason, supervisors are entitled to engage in union activities and any discrimination against them by reason thereof constitutes an unfair labor practice. Supervisors and confidential employees, even though they may exercise the prerogatives of management as regards the rank and file employees, are indeed employees in relation to their employer, the company which is owned by the stockholders and bondholders (capital) and should therefore be entitled under the law to bargain collectively with the top management with respect to their terms and conditions of employment.

36. SANTA ROSA COCA-COLA PLANT EMPLOYEES UNION VS. COCA-COLA

BOTTLERS PHILS., INC. As to the shop stewards who contend that they are merely union members and not union officers, the SC said that they are union officers. It is quite clear that the jurisdiction of shop stewards and the supervisors includes the determination of the issues arising from the interpretation or even implementation of a provision of the CBA, or from any order or memorandum, circular or assignments issued by the appropriate authority in the establishment. In fine, they are part and parcel of the continuous process of grievance resolution designed to preserve and maintain peace among the employees and their employer. They occupy positions of trust and laden with awesome responsibilities. In this case, instead of playing the role of "peacemakers" and grievance solvers, the petitioners-shop stewards participated in the strike. Thus, like the officers and directors of petitioner Union who joined the strike, petitioners-shop stewards also deserve the penalty of dismissal from their employment. E. ALIENS

Art. 269. Prohibition against aliens; exceptions. All aliens, natural or juridical, as well as foreign organizations are strictly prohibited from engaging directly or indirectly in all forms of trade union activities without prejudice to normal contacts between Philippine labor unions and recognized international labor centers: Provided, however, That aliens working in the country with valid permits issued by the Department of Labor and Employment, may exercise the right to self-organization and join or assist labor organizations of their own choosing for purposes of collective bargaining: Provided, further, That said aliens are nationals of a country which grants the same or similar rights to Filipino workers. (As amended by Section 29, Republic Act No. 6715, March 21, 1989)

F. SECURITY GUARDS

37. MANILA ELECTRIC CO. VS. SECRETARY OF LABOR



As for security employees, the implementation rules insofar as it disqualifies security employees from joining labor organizations of the rank and file, is null and void, for not being germane to the purposes of EO 111 (annulled the provision from Art. 245 of old Labor Code, which was erroneously “carried over” in RA 6715’s IRR) and RA 6715. Now they may join either the union of the rank and file or of the supervisors, depending on their rank. (Rationale of previous exclusion: Potential conflict of interest, divided loyalty). V. WORKERS WITH NO RIGHT OF SELF-ORGANIZATION = COLLECTIVE

BARGAINING

A. MANAGERIAL AND CONFIDENTIAL EMPLOYEES – 212(M); 82

Art. 212(m). “Managerial employee” is one who is vested with the powers or prerogatives to lay down and execute management policies and/or hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees. Supervisory employees are those who, in the interest of the employer, effectively recommend such managerial action if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. All employees not falling within any of the above definitions are considered rank-and-file employees for purposes of this Book. Art. 82. Coverage. – The provisions of the Title [Title I – Working Conditions and Rest Periods] shall apply to employees in all establishment and undertakings whether for profit or not, but not to governmental employees, managerial employees, field personnel, members of the family of the employer who are dependent on him for support, domestic helpers, persons in the personal service of another, and workers who are paid by results as determined by the Secretary of Labor in appropriate regulations.

As used herein, “managerial employees” refer to those whose primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof, and to other officers or members of the managerial staff.

“Field personnel” shall refer to non-agricultural employees who regularly perform their duties away from the principal place of business or branch office of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty.

1. Test

38. STANDARD CHARTERED BANK EMPLOYEES UNION V. STANDARD CHARTERED

BANK, 552 SCRA 284 (08)

While Art. 245 limits the ineligibility to join, form and assist any labor organization to managerial employees, jurisprudence has extended this prohibition to confidential employees or those who by reason of their positions or nature of work are required to assist or act in a fiduciary manner to managerial employees and hence, are likewise privy to sensitive and highly confidential records.

Bank cashiers and HR staff are confidential employees. 39. SAN MIGUEL CORPORATION SUPERVISORS AND EXEMPT UNION V.

LAGUESMA, 277 SCRA 370 (97)

Confidential employees: 1. Assist or act in a confidential capacity 2. Persons who formulate, determine, and effectuate management

policies in the field of labor relations.

The two criteria above are cumulative, and both must be met if an employee is to be considered a confidential employee.

Confidential relationship must exist between the employee and his supervisor, and the supervisor must handle the prescribed responsibilities relating to labor relations.

An important element of the “confidential employee rule” is the employee’s need to use labor relations information. A key question

frequently considered is the employee’s necessary access to confidential labor relations information.

40. SUGBUANON RURAL BANK, INC. V. LAGUESMA, 324 SCRA 425 (00)

NOT managerial employees if they only have recommendatory powers subject to evaluation, review, and final decision of the management

41. SAMSON V. NLRC, 330 SCRA 460 (00)

As a ground for dismissal, the term “trust and confidence” is restricted to managerial employees.

Managerial employee – 3 conditions must concur: 1. Their primary duty consists of the management of the

establishment in which they are employed or of a department or subdivision thereof

2. They customarily and regularly direct the work of two or more employees therein

3. They have the authority to hire or fire other employees of lower rank; or their suggestions and recommendations as to hiring and firing and as to the promotion or any other change of status of other employees are given particular weight.

42. PAPER INDUSTRIES CORP. OF THE PHILIPPINES V. LAGUESMA, 330 SCRA 295

(00)

The mere fact that an employee is designated “manager” does not ipso facto make him one. Designation should be reconciled with the actual job description of the employee, for it is the job description that determines the nature of employment.

Managerial employees:

Top and Middle Managers – have the authority to devise, implement and control strategic and operational policies

First-Line Managers – ensure that such policies are carried out by the rank-and-file employees

Power, which is in effect RECOMMENDATORY in character, is SUBJECT TO EVALUATION, REVIEW, and FINAL ACTION by department heads and other higher executives of the company.

NOT an exercise of INDEPENDENT JUDGMENT as required by law.

2. Prohibition and Rationale

43. METROLAB INDUSTRIES, INC. V. ROLDAN-CONFESSOR, 254 SCRA 182 (96)

SC recognizes the exercise of management prerogatives and often declines to interfere with the legitimate business decisions of the employer. However, this privilege is not absolute but subject to limitations imposed by law.

Although Art. 245 limits the ineligibility to join, form and assist any labor organization to managerial employees, jurisprudence has extended this prohibition to confidential employees or those who by reason of their positions or nature of work are required to assist or act in a fiduciary manner to managerial employees and hence, are likewise privy to sensitive and highly confidential records.

In the collective bargaining process, managerial employees are supposed to be on the side of the employer, to act as its representatives, and to see to it that its interests are well protected. The employer is not assured of such protection if these employees themselves are union members. Collective bargaining in such a situation can become one-sided.

It is the same reason that impelled this Court to consider the position of confidential employees as included in the disqualification found in Art. 245 as if the disqualification of confidential employees were written in the provision. If confidential employees could unionize in order to bargain for



advantages for themselves, then they could be governed by their own motives rather than the interest of the employers. Moreover, unionization of confidential employees for the purpose of collective bargaining would mean the extension of the law to persons or individuals who are supposed to act "in the interest of the employers. It is not farfetched that in the course of collective bargaining, they might jeopardize that interest which they are duty-bound to protect.

44. PEPSI COLA PRODUCTS V. SECRETARY OF LABOR, 312 SCRA 104 (99)

A confidential employee is one entrusted with confidence on delicate matters, or with the custody, handling, or care and protection of the employer's property. While Art. 245 singles out managerial employee as ineligible to join, assist or form any labor organization, under the doctrine of necessary implication, confidential employees are similarly disqualified.

If these managerial employees would belong to or be affiliated with a Union, the latter might not be assured of their loyalty to the Union in view of evident conflict of interests. The Union can also become company dominated with the presence of managerial employees in Union membership

(same as Metrolab)

B. WORKER / MEMBER OF COOPERATIVE

45. BENGUET ELECTRIC COOPERATIVE, INC. V. CALLEJA, 180 SCRA 740 (89)

As members of the cooperative they are co-owners thereof. As such, they cannot invoke the right to collective bargaining for “certainly an owner cannot bargain with himself or his co-owners.” (Cooperative Rural Bank of Davao City, Inc. v. Ferrer-Calleja, et al.)

It is the fact of ownership of the cooperative, and not involvement in the management thereof, which disqualifies a member from joining any labor organization within the cooperative.

46. CENTRAL NEGROS ELECTRIC COOPERATIVE, INC. V. SEC. OF DOLE, 201 SCRA

584 (91)

Membership in the cooperative is on a voluntary basis. Hence, withdrawal therefrom cannot be restricted unnecessarily. The right to join an organization necessarily includes the equivalent right not to join the same.

47. REPUBLIC V. ASIAPRO COOPERATIVE, 538 SCRA 659 (07)

Employer-employee relationship: - must concur 1. selection and engagement of the workers

2. payment of wages by whatever means

3. power of dismissal

4. power to control the worker’s conduct, with the latter assuming

primacy in the overall consideration.

The existence of an employer-employee relationship cannot be negated by expressly repudiating it in a contract, when the terms and surrounding circumstances show otherwise.

In Cooperative Rural Bank of Davao City, Inc. v. Ferrer-Calleja, the court held that an employee of a cooperative who is a member and co-owner thereof cannot invoke the right to collective bargaining for certainly an owner cannot bargain with himself or his co-owners. However, in so far as it involves cooperatives with employees who are not members or co-owners thereof, certainly such employees are entitled to exercise the rights of all workers to organization, collective bargaining, negotiations and others as are enshrined in the Constitution and existing laws of the country.

Obviously, an owner-member cannot bargain collectively with the cooperative of which he is also the owner because an owner cannot bargain with himself.

C. NON-EMPLOYEES – 243

Art. 243. Coverage and Employees’ Right to Self-organization. – All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions, whether operation for profit or not, shall have the right to self-organization and to form, join, or assist labor organizations of their own choosing for purposes of collective bargaining. Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers may form labor organizations for their mutual aid and protection. (As amended by BP 70, May 1, 1980)

48. REPUBLIC PLANTERS BANK GENERAL SERVICES EMPLOYEES UNION – NATU V.

LAGUESMA, 264 SCRA 637 (96)

If the union members are not employees, no right to organize for purposes of bargaining, nor to be certified as bargaining agent can be recognized. Since the persons involved are not employees of the company, they are not entitled to the constitutional right to join or form a labor organization for purposes of collective bargaining.

VI. PARTY PROTECTED

49. MACTAN WORKERS UNION V. ABOITIZ, 45 SCRA 577 (72)

The benefits of a CBA extend to the laborers and employees in the collective bargaining unit, including those who do not belong to the chosen bargaining labor organization. The labor union that gets the majority vote as the exclusive bargaining representative does not act for its members alone. It represents all the employees in such a bargaining unit.

The raison d’etre of labor unions: it is not to be forgotten that what is entitled to constitutional protection is labor, or more specifically the working men and women, not labor organizations. The latter are merely the instrumentalities through which their welfare may be promoted and fostered.

VII. NON-ABRIDGMENT OF RIGHT – 246; 248(A); 249(A); 288; 290

Art. 246. Non-abridgment of Right to Self-Organization. – It shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with employees and workers in their exercise of the right to self-organization. Such right shall include the right to form, join, or assist labor organizations for the purpose of collective bargaining through representatives of their own choosing and to engage in lawful concerted activities for the same purpose for their mutual aid and protection, subject ot the provisions of Art. 264 of this Code. (As amended by BP 70, May 1, 1980) Art. 248. Unfailr Labor Practices of Employers (a) To interfere with, restrain or coerce employees in the exercise of their right

to self-organization Art. 249. Unfair Labor Practices of Labor Organizations (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

Art. 288. Penalties. – Except as otherwise provided in this Code, or unless the acts complained of hinge on a question of interpretation or implementation of ambiguous provisions of an existing collective bargaining agreement, any violation of the provisions of this Code declared to be unlawful or penal in nature shall be punished with a fine of not less than P1,000 nor more than P10,000 or imprisonment of not less than 3 months nor more than 3 years, or both such fine and imprisonment at the discretion of the court.



In addition to such penalty, any alien found guilty shall be summarily deported upon completion of service of sentence. Any provision of the law to the contrary notwithstanding, any criminal offense punished in this Code, shall be under the concurrent jurisdiction of the Municipal or City Courts and the Courts of First Instance. (As amended by Sec. 3, BP 70) Art. 290. Offenses. – Offenses penalized under this Code and the rules and regulations issued pursuant thereto shall prescribe in 3 years. All unfair labor practice arising from Book V shall be filed with the appropriate agency within 1 year from accrual of such unfair labor practice; otherwise, they shall be forever barred.

PART THREE. LABOR ORGANIZATION

I. LABOR ORGANIZATION IN GENERAL

A. POLICY –

ART 211 Declaration of Policy b. To promote free trade unionism as an instrument for the enhancement of

democracy and the promotion of social justice and development c. To foster the free and voluntary organization of a strong and united labor

movement d. To promote enlightenment of employees concerning their rights and

obligations as union members and as employees

B. LABOR ORGANIZATION - UNIONS

1. DEFINITIONS

ART 212 Definitions g. Labor organization means ay union or association of employees which exists

in whole or in part for the purpose of collective bargaining or of dealing with employers concerning terms and conditions of employment

h. Legitimate labor organization means any labor organization duly registered with the DOLE and includes any branch or local thereof.

50. UST V SAMAHANG MANGGAGAWA

Acceptance of award or benefit by individual members is not a waiver of the union’s claim. Union members’ individual acceptance of the award and the resulting payments made by company does not operate as a ratification of the DOLE Secretary’s award; nor a waiver of their right to receive further benefits, or what they may be entitled to under the law. Necessitous men are not, truly speaking, free men; but to answer a present emergency, will submit to any terms that the crafty may impose upon them.

As individual components of a union possessed of a distinct and separate corporate personality, respondent’s members should realize that in joining the organization, they have surrendered a portion of their individual freedom for the benefit of all the other members; they submit to the will of the majority of the members in order that they may derive the advantages to be gained from the concerted action of all. Since the will of the members is personified by its board of directors or trustees, the decisions it makes should accordingly bind them. Precisely, a labor union exists in whole or in part for the purpose of collective bargaining or of dealing with employers concerning terms and conditions of employment. What the individual employee may not do alone, as for example obtain more favorable terms and conditions of work, the labor organization, through persuasive and coercive power gained as a group, can accomplish better.

51. AIRLINE PILOTS ASSOCIATION V CIR

Certification proceeding is not a litigation, but an investigation of a non-adversary, fact finding character in which the Court of Industrial Relations plays the part of a disinterested investigator seeking merely to ascertain the desires of employees as to the matter of their representation.

Definition of Legitimate Labor Organization: Section 2(e) of R.A. 875 defines "labor organization" as any union or association of employees which exist, in whole or in part, for the purpose of the collective bargaining or dealing with employers concerning terms and conditions of employment." The emphasis of Industrial Peace Act is clearly on the purposes for which a union or association of employees established rather than that membership therein should be limited only to the employees of a particular employer. Under Section 2(h) of R.A 875 "representative" is define as including "a legitimate labor organization or any officer or agent of such organization, whether or not employed by the employer or employee whom he represents." It cannot be overemphasized likewise that labor dispute can exist "regardless of whether the disputants stand in the proximate relation of employer and employee.”

52. STA LUCIA EAST V SECRETARY OF LABOR

Article 212(g) of the Labor Code defines a labor organization as “any union or association of employees which exists in whole or in part for the purpose of collective bargaining or of dealing with employers concerning terms and conditions of employment.” Upon compliance with all the documentary requirements, the Regional Office or Bureau shall issue in favor of the applicant labor organization a certificate indicating that it is included in the roster of legitimate labor organization. Any applicant labor organization shall acquire legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor organizations upon issuance of the certificate of registration.

53. DUNLOP V SEC OF LABOR

"Clearly, based on this provision [Article 245, Labor Code], a labor organization composed of both rank-and-file and supervisory employees is no labor organization at all. It cannot, for any guise or purpose, be a legitimate labor organization. Not being one, an organization which carries a mixture of rank-and-file and supervisory employees cannot possess any of the rights of a legitimate labor organization, including the right to file a petition for certification election for the purpose of collective bargaining. It becomes necessary, therefore, anterior to the granting of an order allowing a certification election, to inquire into the composition of any labor organization whenever the status of the labor organization is challenged on the basis of Article 245 of the Labor Code."

54. SAN MIGUEL CORP V SAN MIGUEL

A legitimate labor organization is defined as “any labor organization duly registered with the Department of Labor and Employment, and includes any branch or local thereof.” The mandate of the Labor Code is to ensure strict compliance with the requirements on registration because a legitimate labor organization is entitled to specific rights under the Labor Code, and are involved in activities directly affecting matters of public interest. Registration requirements are intended to afford a measure of protection to unsuspecting employees who may be lured into joining unscrupulous or fly-by-night unions whose sole purpose is to control union funds or use the labor organization for illegitimate ends. Legitimate labor organizations have exclusive rights under the law which cannot be exercised by non-legitimate



unions, one of which is the right to be certified as the exclusive representative of all the employees in an appropriate collective bargaining unit for purposes of collective bargaining. The acquisition of rights by any union or labor organization, particularly the right to file a petition for certification election, first and foremost, depends on whether or not the labor organization has attained the status of a legitimate labor organization.

2. LEGITIMATE LABOR ORGANIZATION

55. STA LUCIA EAST V SECRETARY OF LABOR (SUPRA)

56. PROGRESSIVE DEVT CORP V SECRETARY OF LABOR

Article 212(h) defines a legitimate labor organization as "any labor organization duly registered with the DOLE and includes any branch or local thereof." Rule I, Section 1 (j), Book V of the Implementing Rules likewise defines a legitimate labor organization as "any labor organization duly registered with the DOLE and includes any branch, local or affiliate thereof.

A labor organization acquires legitimacy only upon registration with the BLR. Under Article 234 (Requirements of Registration): o Any applicant labor organization, association or group of unions

or workers shall acquire legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor organizations upon issuance of the certificate of registration based on the following requirements: (a) Fifty-pesos (P50.00) registration fee; (b) The names of its officers, their addresses, the principal address of the labor organization, the minutes of the organizational meeting and the list of the workers who participated in such meetings; (c) The names of all its members comprising at least twenty 20% percent of all the employees in the bargaining unit where it seek to operate; (d) If the applicant has been in existence for one or more years, copies, of its annual financial reports; and (e) Four copies of the constitution and by-laws of the applicant union, the minutes of its adoption or ratification and the list of the members who participated in it.

And under Article 235 (Action on Application) o The Bureau shall act on all applications for registration within

thirty (30) days from filing. o All requisite documents and papers shall be certified under oath

by the secretary or the treasurer of the organization, as the case may be, and attested to by its president.

Section 4 of Rule II, Book V of the Implementing Rules requires that the application should be signed by at least twenty percent (20%) of the employees in the appropriate bargaining unit and be accompanied by a sworn statement of the applicant union that there is no certified bargaining agent or, where there is an existing collective bargaining agreement duly submitted to the DOLE, that the application is filed during the last sixty (60) days of the agreement.

57. COASTAL SUBIC V DOLE

Once a labor union attains the status of a legitimate labor organization, it continues as such until its certificate of registration is cancelled or revoked in an independent action for cancellation. In addition, the legal personality of a labor organization cannot be collaterally attacked.

58. CEBU SEAMAN’S ASSOC V FERRER-CALLEJA

It is the registration of the organization with the BLR and not with the SEC which made it a legitimate labor organization with rights and privileges granted under the Labor Code.

3. COMPANY UNION

ART 212 Definitions 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.

ART 248 Unfair labor practices of employers d. To initiate, dominate, assist or otherwise interfere with the formation or

administration of labor organization, including the giving of financial or other support to it or its organizers or supporters

4. WORKERS ASSOCIATION

Implementing Rules Book 5, Rule 1. (ccc) Worker’s association refers to an association of workers organized for the mutual aid and protection of its members or for any legitimate purpose other than collective bargaining.

C. UNION FUNCTION AND RATIONALE

59. UNITED SEAMAN’S UNION OF THE PHILS V DAVAO

SHIPOWNERS

A labor organization is wholesome if it serves its legitimate purpose of promoting the interests of labor without unnecessary labor disputes. That is why it is given personality and recognition in concluding collective bargaining agreements. But if it is made use of as a subterfuge, or as a means to subvert valid commitments, it defeats its own purpose, for it tends to undermine the harmonious relations between management and labor.

60. GUIJARNO V CIR

The function of a labor union is to assure that Constitution’s fundamental objectives for labor would be achieved. It is the instrumentality through which an individual laborer who is helpless as against a powerful employer may, through concerted effort and activity, achieve the goal of economic well-being

61. PHILIPPINE ASSOCIATION OF FREE LABOR UNIONS V. SECRETARY OF LABOR,

27 SCRA 40 (69) The requirement of registration does NOT curtail the freedoms of assembly and association. Said freedoms may still be exercised with or without registration. The latter is merely a condition sine qua non for the acquisition of legal personality by labor unions and the possessions of rights and privileges granted by law. The constitution does not guarantee these rights and privileges, much less legal personality, which are mere statutory creations.

2. REQUIREMENTS AND RATIONALE – 234; 234-A; 237

Article 234. Requirements of registration. - A federation, national union or industry or trade union center or an independent union shall acquire legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor organizations upon issuance of the certificate of registration based on the following requirements: (a) Fifty pesos (P50.00) registration fee; (b) The names of its officers, their addresses, the principal address of the labor organization, the minutes of the organizational meetings and the list of the workers who participated in such meetings;



(c) In case the applicant is an independent union, the names of all its members comprising at least twenty percent (20%) of all the employees in the bargaining unit where it seeks to operate; (d) If the applicant union has been in existence for one or more years, copies of its annual financial reports; and (e) Four copies of the constitution and by-laws of the applicant union, minutes of its adoption or ratification, and the list of the members who participated in it. (As amended by Batas Pambansa Bilang 130, August 21, 1981 and Section 1, Republic Act No. 9481 which lapsed into law on May 25, 2007 and became effective on June 14, 2007). Article 234-A. Chartering and creation of a local chapter. - A duly registered federation or national union may directly create a local chapter by issuing a charter certificate indicating the establishment of the local chapter. The chapter shall acquire legal personality only for purposes of filing a petition for certification election from the date it was issued a charter certificate. The chapter shall be entitled to all other rights and privileges of a legitimate labor organization only upon the submission of the following documents in addition to its charter certificate: (a) The names of the chapter’s officers, their addresses, and the principal office of the chapter; and (b) The chapter’s constitution and by-laws: Provided, That where the chapter’s constitution and by-laws are the same as that of the federation or the national union, this fact shall be indicated accordingly. The additional supporting requirements shall be certified under oath by the secretary or treasurer of the chapter and attested by its president. (As inserted by Section 2, Republic Act No. 9481 which lapsed into law on May 25, 2007 and became effective on June 14, 2007). Article 237. Additional requirements for federations or national unions. - Subject to Article 238, if the applicant for registration is a federation or a national union, it shall, in addition to the requirements of the preceding Articles, submit the following: (a) Proof of the affiliation of at least ten (10) locals or chapters, each of which must be a duly recognized collective bargaining agent in the establishment or industry in which it operates, supporting the registration of such applicant federation or national union; and (b) The names and addresses of the companies where the locals or chapters operate and the list of all the members in each company involved. International Covenant on Economic, Social and Cultural Rights – Art. 8 (b) (c); ILO Convention No. 48, Arts. 7-8 ICESCR Art. 8. 1. The States Parties to the present Covenant undertake to ensure: (b) The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organizations; (c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;

62. MARIWASA ETC. V SEC. DOLE, 608 SCRA 706 (09)

The alleged failure of respondent to indicate with mathematical precision the total number of employees in the bargaining unit is of no moment, especially as it was able to comply with the 20% minimum membership requirement. Even if the total number of rank-and-file employees of petitioner is 528, while respondent declared that it should only be 455, it still cannot be denied that the latter would have more than complied with the registration requirement.

63. S.S. VENTURES, ETC. V. S.S. VENTURES, ETC. 559 SCRA 425 (08) The registration or the recognition of a labor union after it has submitted the corresponding papers is not ministerial on the part of the BLR. After a labor organization has filed the necessary registration documents, it becomes mandatory for the BLR to check if the requirements under Art. 234 of the Labor Code have been sedulously

complied with. If the union's application is infected by falsification and like serious irregularities, especially those appearing on the face of the application and its attachments, a union should be denied recognition as a legitimate labor organization.

64. SAN MIGUEL CORPORATION V. MANDAUE, 467 SCRA 107 (05)

The rule applicable to the case is Department Order No. 9 which states:

Section 1. Chartering and creation of a local chapter — A duly registered federation or national union may directly create a local/chapter by submitting to the Regional Office or to the Bureau two (2) copies of the following: a) A charter certificate issued by the federation or national union indicating the creation or establishment of the local/chapter; (b) The names of the local/chapter's officers, their addresses, and the principal office of the local/chapter; (c) The local/chapter's constitution and by-laws; provided that where the local/chapter's constitution and by-laws is the same as that of the federation or national union, this fact shall be indicated accordingly.

All the foregoing supporting requirements shall be certified under oath by the Secretary or Treasurer of the local/chapter and attested by its President.

It further provides when the local/chapter acquires legal personality:

Section 3. Acquisition of legal personality by local chapter. – A local/chapter constituted in accordance with Section 1 of this Rule shall acquire legal personality from the date of filing of the complete documents enumerated therein. Upon compliance with all the documentary requirements, the Regional Office or Bureau shall issue in favor of the local/chapter a certificate indicating that it is included in the roster of legitimate labor organizations.

It is evident based on this rule that the local/chapter acquires legal personality from the date of the filing of the complete documentary requirements, and not from the issuance of a certification to such effect by the Regional Office or Bureau. On the other hand, a labor organization is deemed to have acquired legal personality only on the date of issuance of its certificate of registration, which takes place only after the Bureau of Labor Relations or its Regional Offices has undertaken an evaluation process lasting up until thirty (30) days, within which period it approves or denies the application. In contrast, no such period of evaluation is provided in Department Order No. 9 for the application of a local/chapter, and more importantly, under it such local/chapter is deemed to acquire legal personality “from the date of filing” of the documents enumerated under Section 1, Rule VI, Book V.

Notwithstanding the amendments, it still is good policy to maintain that per Department Order No. 9, the duty of the Bureau of Labor Relations to recognize the local/chapter upon the submission of the documentary requirements is not ministerial, insofar as the Bureau is obliged to adjudge the authenticity of the documents required to be submitted. For example, the Bureau is not mandated to accept just any purported charter certificate matter how spurious it is in appearance. It is empowered to ascertain whether the submitted charter certificate is genuine, and if finding that said certificate is fake, deny recognition to the local/chapter.

However, in ascertaining whether or not to recognize and register the local/chapter, the Bureau or Regional Office should not look



beyond the authenticity and due execution of the documentary requirements for the creation of the local/chapter.

In regular order, it is the federation or national union, already in possession of legal personality, which initiates the creation of the local/chapter. It issues a charter certificate indicating the creation or establishment of the local/chapter. It then submits this charter certificate, along with the names of the local/chapter’s officers, constitution and by-laws to the Regional Office or Bureau. It is the submission of these documents, certified under oath by the Secretary or Treasurer of the local/chapter and attested by the President, which vests legal personality in the local/chapter, which is then free to file on its own a petition for certification election.

It could be properly said that at the exact moment respondent was filing the petition for certification, it did not yet possess any legal personality, since the requisites for acquisition of legal personality under Section 3, Rule VI of Department Order No. 9 had not yet been complied with. Yet there are peculiar circumstances in this case that allow the Court to rule that respondent acquired the requisite legal personality at the same time it filed the petition for certification election. In doing so, the Court acknowledges that the strict letter of the procedural rule was not complied with. However, labor laws are generally construed liberally in favor of labor, especially if doing so affirms the constitutionally guaranteed right to self-organization.

65. COASTAL SUBIC ETC. V. DOLE, 507 SCRA 300 (06)

A chartered local union acquires legal personality through the charter certificate issued by a duly registered federation or national union, and reported to the Regional Office in accordance with the rules implementing the Labor Code. A local union does not owe its existence to the federation with which it is affiliated. It is a separate and distinct voluntary association owing its creation to the will of its members. Mere affiliation does not divest the local union of its own personality, neither does it give the mother federation the license to act independently of the local union. It only gives rise to a contract of agency, where the former acts in representation of the latter. Hence, local unions are considered principals while the federation is deemed to be merely their agent. As such principals, the unions are entitled to exercise the rights and privileges of a legitimate labor organization, including the right to seek certification as the sole and exclusive bargaining agent in the appropriate employer unit.

Once a labor union attains the status of a legitimate labor organization, it continues as such until its certificate of registration is cancelled or revoked in an independent action for cancellation. In addition, the legal personality of a labor organization cannot be collaterally attacked. Hence, in the absence of any independent action for cancellation of registration against either APSOTEU or ALU, and unless and until their registrations are cancelled, each continues to possess a separate legal personality.

66. SAN MIGUEL CORPORATION, ETC. V. SAN MIGUEL, ETC., 533 SCRA 125

(07) We find no legal justification to support the conclusion that a trade union center is allowed to directly create a local or chapter through chartering. Article 234 now includes the term trade union center, but interestingly, the provision indicating the procedure for chartering or creating a local or chapter, namely Article 234-A, still makes no mention of a "trade union center." Even in the most recent amendment of the implementing rules, there was no mention of a trade union center as being among the labor organizations allowed to charter.

67. PROGRESSIVE DEVELOPMENT CORPORATION V. LAGUESMA, 205 SCRA 802

(92)

Ordinarily, a labor organization acquires legitimacy only upon registration with the BLR, upon submission of the requirements as enumerated in Article 234. Under Article 235 (Action on Application):

"The Bureau shall act on all applications for registration within thirty (30) days from filing. All requisite documents and papers shall be certified under oath by the secretary or the treasurer of the organization, as the case may be, and attested to by its president."

Moreover, section 4 of Rule II, Book V of the Implementing Rules requires that the application should be signed by at 20% of the employees in the appropriate bargaining unit and be accompanied by a sworn statement of the applicant union that there is no certified bargaining agent or, where there is an existing collective agreement duly submitted to the DOLE, that the application is filed during the last sixty (60) days of the agreement.

Rationale: The registration prescribed in is not a limitation to the right of assembly or association, which may be exercised with or without said registration. The latter is merely a condition sine qua non for the acquisition of legal personality by labor organizations, associations or unions and the possession of the "rights and privileges granted by law to legitimate labor organizations." The Constitution does not guarantee these rights and privileges, much less said personality, which are mere statutory creations, for the possession and exercise of which registration is required to protect both labor and the public against abuses, fraud, or impostors who pose as organizers, although not truly accredited agents of the union the purport to represent. Such requirement is a valid exercise of the police power, because the activities in which labor organizations, associations and unions of workers are engaged affect public interest, which should be protected. Furthermore, the obligation to submit financial statements, as a condition for the non-cancellation of a certificate of registration, is a reasonable regulation for the benefit of the members of the organization, considering that the same generally solicits funds or membership, as well as oftentimes collects, on behalf of its members, huge amounts of money due to them or to the organization.

But when an unregistered union becomes a branch, local or chapter of a federation, some of the aforementioned requirements for registration are no longer required. The provisions governing union affiliation are found in Rule II, Section 3, Book V of the Implementing Rules. A local or chapter therefore becomes a legitimate labor organization only upon submission of the following to the BLR:

1) A charter certificate, within 30 days from its issuance by the labor federation or national union, and 2) The constitution and by-laws, a statement on the set of officers, and the books of accounts all of which are certified under oath by the secretary or treasurer, as the case may be, of such local or chapter, and attested to by its president.

Rationale: The intent of the law in imposing lesser requirements in the case of a branch or local of a registered federation or national union is to encourage the affiliation of a local union with a federation or national union in order to increase the local union's bargaining powers respecting terms and conditions of labor. Absent compliance with these mandatory requirements, the local or chapter does not become a legitimate labor organization.



In the case at bar, the failure of the secretary of PDEU-Kilusan to certify the required documents under oath is fatal to its acquisition of a legitimate status.

68. PHOENIX IRON AND STEEL CORPORATION V. SECRETARY OF LABOR, 244

SCRA 173 (95)

A local or chapter becomes a legitimate labor organization only upon submission of the following to the BLR:

1) A charter certificate, within 30 days from its issuance by the labor federation or national union, and 2) The constitution and by-laws, a statement on the set of officers, and the books of accounts all of which are certified under oath by the secretary or treasurer, as the case may be, of such local or chapter, and attested to by its president.

Absent compliance with these mandatory requirements, the local or chapter does not become a legitimate labor organization. In the case of union registration, the rationale for requiring that the submitted documents and papers be certified under oath by the secretary or treasurer, as the case may be, and attested to by the president is apparent. The submission of the required documents (and payment of P50.00 registration fee) becomes the Bureau's basis for approval of the application for registration. The inclusion of the certification and attestation requirements will in a marked degree allay the apprehensions of the employer. Not only is the issuance of any false statement and misrepresentation a ground for cancellation of registration (see Article 239 (a), (c) and (d)); it is also a ground for a criminal charge of perjury. The certification and attestation requirements are preventive measures against the commission of fraud. They likewise afford a measure of protection to unsuspecting employees who may be lured into joining unscrupulous or fly-by-night unions whose sole purpose is to control union funds or to use the union for dubious ends.

In the case of union affiliation with a federation (as in this case), the documentary requirements are found in Rule II, Section 3 (e), Book V of the Implementing Rules, which we again quote as follows: "(c) The local or chapter of a labor federation or national union shall have and maintain a constitution and by-laws, set of officers and books of accounts. For reporting purposes, the procedure governing the reporting of independently registered unions, federations or national unions shall be observed.” Since the "procedure governing the reporting of independently registered unions" refers to the certification and attestation requirements contained in Article 235, paragraph 2, it follows that the constitution and by-laws, set of officers and books of accounts submitted by the local and chapter must likewise comply with these requirements. The same rationale for requiring the submission of duly subscribed documents upon union registration exists in the case of union affiliation.

3. QUESTION OF LEGITIMACY

69. S.S. VENTURES, ETC. V. S.S. VENTURES, ETC. 559 SCRA 425 (08)

Once registered with the DOLE, a union is considered a legitimate labor organization endowed with the right and privileges granted by law to such organization. While a certificate of registration confers a union with legitimacy with the concomitant right to participate in or ask for certification election in a bargaining unit, the registration may be canceled or the union may be decertified as the bargaining unit, in which case the union is divested of the status of a legitimate labor organization. Among the grounds for cancellation is the commission of any of the acts enumerated in

Art. 239 (a) 16 of the Labor Code, such as fraud and misrepresentation in connection with the adoption or ratification of the union's constitution and like documents. The Court, has in previous cases, said that to decertify a union, it is not enough to show that the union includes ineligible employees in its membership. It must also be shown that there was misrepresentation, false statement, or fraud in connection with the application for registration and the supporting documents, such as the adoption or ratification of the constitution and by-laws or amendments thereto and the minutes of ratification of the constitution or by-laws, among other documents.

The employees' withdrawal from a labor union made before the filing of the petition for certification election is presumed voluntary, while withdrawal after the filing of such petition is considered to be involuntary and does not affect the same. After a labor organization has filed the necessary registration documents, it becomes mandatory for the BLR to check if the requirements under Art. 234 of the Labor Code have been sedulously complied with. If the union's application is infected by falsification and like serious irregularities, especial those appearing on the face of the application and its attachments, a union should be denied recognition as a legitimate labor organization. The issuance to the Union of Certificate of necessarily implies that its application for registration and the supporting documents thereof are prima facie free from any vitiating irregularities.

70. FURUSAWA V. SECRETARY OF LABOR, 282 SCRA 635 (97)

The presentation of the xerox copy of the certificate of registration to support its claim of being a duly registered labor organization instead of the submission of the original certificate is not a fatal defect to the organization conferred by its registration with DOLE. The issuance of the certificate of registration evidently shows that FEU-IND has complied with the requirements of Art. 234 of the Labor Code. A certification proceeding is not a litigation in the sense that the term is ordinarily understood, but an investigation of a fact-finding and non-adversarial character. It is not covered by the technical rules of evidence. Thus, as provided in Art. 221, proceedings before the National Labor Relations Commission are not covered by the technical rules of evidence and procedure. 71. SAN MIGUEL CORPORATION, ETC. V. SAN MIGUEL, ETC. 533 SCRA 125 (07)

The Implementing Rules stipulate that a labor organization shall be deemed registered and vested with legal personality on the date of issuance of its certificate of registration. Once a certificate of registration is issued to a union, its legal personality cannot be subject to collateral attack. It may be questioned only in an independent petition for cancellation in accordance with Section 5 of Rule V, Book V of the Implementing Rules:

Sec. 5.Effect of registration. The labor organization or workers' association shall be deemed registered and vested with legal personality on the date of issuance of its certificate of registration. Such legal personality cannot thereafter be subject to collateral attack, but may be questioned only in an independent petition for cancellation in accordance with these Rules.

A direct challenge to the legitimacy of a labor organization based on fraud and misrepresentation in securing its certificate of registration is a serious allegation which deserves careful scrutiny. Allegations thereof should be compounded with supporting circumstances and evidence. The records of the case are devoid of such evidence. Furthermore, this Court is not a trier of facts, and this doctrine applies with greater force in labor cases. Findings of

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fact of administrative agencies and quasi-judicial bodies, such as the BLR, which have acquired expertise because their jurisdiction is confined to specific matters, are generally accorded not only great respect but even finality.

72. PHILIPPINE DIAMOND HOTEL V. MANILA DIAMOND HOTEL EMPLOYEES

ASSOCIATION, 494 SCRA 195 (06) As Art. 255 declares, only the labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit is the exclusive representative of the employees in such unit for the purpose of collective bargaining. The Union’s reliance on Art. 242 (a) [A legitimate labor organization shall have the right to act as representative of its members for the purpose of collective bargaining] is misplaced for not every legitimate labor organization possesses the rights mentioned therein. Art. 242 (a) must be read in relation to Article 255. It bears noting that the goal of the DOLE is geered towards "a single employer wide unit which is more to the broader and greater benefit of the employees working force." The philosophy is to avoid fragmentation of the bargaining unit so as to strengthen the employees’ bargaining power with the management. To veer away from such goal would be contrary, inimical and repugnant to the objectives of a strong and dynamic unionism.

73. SAN MIGUEL CORPORATION V. MANDAUE, 467 SCRA 107 (05)

It is thus very clear that the issuance of the certificate of registration by the Bureau or Regional Office is not the operative act that vests legal personality upon a local/chapter under Department Order No. 9. Such legal personality is acquired from the filing of the complete documentary requirements enumerated in Section 1, Rule VI. Admittedly, the manner by which respondent was deemed to have acquired legal personality by the DOLE and the Court of Appeals was not in strict conformity with the provisions of Department Order No. 9.

In regular order, it is the federation or national union, already in possession of legal personality, which initiates the creation of the local/chapter. It issues a charter certificate indicating the creation or establishment of the local/chapter. It then submits this charter certificate, along with the names of the local/chapter's officers, constitution and by-laws to the Regional Office or Bureau. It is the submission of these documents, certified under oath by the Secretary or Treasurer of the local/chapter and attested by the President, which vests legal personality in the local/chapter, which is then free to file on its own a petition for certification election.

Yet there are peculiar circumstances in this case that allow the Court to rule that respondent acquired the requisite legal personality at the same time it filed the petition for certification election. The Court acknowledges that the strict letter of the procedural rule was not complied with. However, labor laws are generally construed liberally in favor of labor, especially if doing so affirms the constitutionally guaranteed right to self-organization.

74. TAGAYTAY HIGHLANDS INTERNATIONAL GOLF CLUB, INC. V. TAGAYTAY

HIGHLANDS EMPLOYEES UNION, 395 SCRA 699 (03) After a certificate of registration is issued to a union, its legal personality cannot be subject to collateral attack. It may be questioned only in an independent petition for cancellation in accordance with Section 5 of Rule V, Book IV of the "Rules to Implement the Labor Code" (Implementing Rules) which section reads:

Sec. 5. Effectof registration. The labor organization or workers' association shall be deemed registered and

vested with legal personality on the date of issuance of its certificate of registration. Such legal personality cannot thereafter be subject to collateral attack, but may be questioned only in an independent petition for cancellation in accordance with these Rules.

The inclusion in a union of disqualified employees is not among the grounds for cancellation, unless such inclusion is due to misrepresentation, false statement or fraud under the circumstances enumerated in Sections (a) and (c) of Article 239 of the Labor Code. The union, having been validly issued a certificate of registration, should be considered to have already acquired juridical personality which may not be assailed collaterally.

4. RIGHTS OF LEGITIMATE LABOR ORGANIZATION – 242; 242-A

Art. 242. Rights of legitimate labor organizations. A legitimate labor organization shall have the right: 1. To act as the representative of its members for the purpose of collective bargaining; 2. To be certified as the exclusive representative of all the employees in an appropriate bargaining unit for purposes of collective bargaining; 3. To be furnished by the employer, upon written request, with its annual audited financial statements, including the balance sheet and the profit and loss statement, within thirty (30) calendar days from the date of receipt of the request, after the union has been duly recognized by the employer or certified as the sole and exclusive bargaining representative of the employees in the bargaining unit, or within sixty (60) calendar days before the expiration of the existing collective bargaining agreement, or during the collective bargaining negotiation; 4. To own property, real or personal, for the use and benefit of the labor organization and its members; 5. To sue and be sued in its registered name; and 6. To undertake all other activities designed to benefit the organization and its members, including cooperative, housing, welfare and other projects not contrary to law. Notwithstanding any provision of a general or special law to the contrary, the income and the properties of legitimate labor organizations, including grants, endowments, gifts, donations and contributions they may receive from fraternal and similar organizations, local or foreign, which are actually, directly and exclusively used for their lawful purposes, shall be free from taxes, duties and other assessments. The exemptions provided herein may be withdrawn only by a special law expressly repealing this provision. (As amended by Section 17, Republic Act No. 6715, March 21, 1989) Article 242-A. Reportorial requirements. - The following are documents required to be submitted to the Bureau by the legitimate labor organization concerned: (a) Its constitution and by-laws, or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification of the constitution and by-laws within thirty (30) days from adoption or ratification of the constitution and by-lam or amendments thereto; (b) Its list of officers, minutes of the election of officers, and list of voters within thirty (30) days from election; (c) Its annual financial report within thirty (30) days after the close of every fiscal year; and (d) Its list of members at least once a year or whenever required by the Bureau. Failure to comply with the above requirements shall not be a ground for cancellation of union registration but shall subject the erring officers or members to suspension, expulsion from membership, or any appropriate penalty. (As inserted by Section 7, RA 9481 which lapsed into law on May 25, 2007 and became effective on June 14, 2007).

75. ACEDERA V. INTERNATIONAL CONTAINER SERVICES, INC. 395 SCRA 103

(03)



A labor union is one such party authorized to represent its members under Article 242(a) of the Labor Code which provides that a union may act as the representative of its members for the purpose of collective bargaining. This authority includes the power to represent its members for the purpose of enforcing the provisions of the CBA. That APCWU acted in a representative capacity "for and in behalf of its Union members and other employees similarly situated," the title of the case filed by it at the Labor Arbiter’s Office so expressly states.

While a party acting in a representative capacity, such as a union, may be permitted to intervene in a case, ordinarily, a person whose interests are already represented will not be permitted to do the same except when there is a suggestion of fraud or collusion or that the representative will not act in good faith for the protection of all interests represented by him. The dismissal of the APCWU case does not by itself show the existence of fraud or collusion or a lack of good faith on the part of APCWU. There must be clear and convincing evidence of fraud or collusion or lack of good faith independently of the dismissal.

76. PHILIPPINE DIAMOND HOTEL AND RESORT, INC. V. MANILA DIAMOND HOTEL

EMPLOYEES UNION, 494 SCRA 195 (06) As Art. 255 declares, only the labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit is the exclusive representative of the employees in such unit for the purpose of collective bargaining. The Union’s reliance on Art. 242 (a) [A legitimate labor organization shall have the right to act as representative of its members for the purpose of collective bargaining] is misplaced for not every legitimate labor organization possesses the rights mentioned therein. Art. 242 (a) must be read in relation to Article 255. It bears noting that the goal of the DOLE is geered towards "a single employer wide unit which is more to the broader and greater benefit of the employees working force." The philosophy is to avoid fragmentation of the bargaining unit so as to strengthen the employees’ bargaining power with the management. To veer away from such goal would be contrary, inimical and repugnant to the objectives of a strong and dynamic unionism.

77. CORNISTA V. NLRC, 504 SCRA 659 (06) A labor union's function is to represent its members. It can file an action or enter into compromise agreements on behalf of its members. The Union is a closed shop union. For this reason, it was the only one with legal authority to negotiate, transact, and enter into any agreement with the Bank. The Compromise Agreement was ratified by 282 Union members representing a majority of its entire 529 membership. The ratification of the Compromise Agreement by the majority of the Union members necessarily binds the minority. 78. SAN MIGUEL CORPORATION, ETC. V. SAN MIGUEL ETC. 533 SCRA 125 (07) Once a union acquires legitimate status as a labor organization, it continues to be recognized as such until its certificate of registration is cancelled or revoked in an independent action for cancellation. It bears to emphasize that what is being directly challenged is the personality of respondent as a legitimate labor organization and not that of PDMP. Corollarily, PDMP is granted all the rights and privileges appurtenant to a legitimate labor organization, and continues to be recognized as such until its certificate of registration is successfully impugned and thereafter cancelled or revoked in an independent action for cancellation.

79. REPUBLIC V. KAWASHIMA, ETC. 359 SCRA 386 (08)

If there is one constant precept in our labor laws — be it Commonwealth Act No. 213 (1936), 36 R.A. No. 875 (1953), 37P.D. No. 442 (1974), Executive Order (E.O.) No. 111 (1986) 38 or R.A. No. 6715 (1989) — it is that only a legitimate labor organization may exercise the right to be certified as the exclusive representative of all the employees in an appropriate collective bargaining unit for purposes of collective bargaining.

5. EFFECT OF NON-REGISTRATION

80. PROTECTION TECHNOLOGY, INC. V. SECRETARY OF DOLE, 242 SCRA 99

(95)

Although the federation with which the Union is affiliated submitted documents purporting to show that the latter had offered books of account to support its (the Union's) application for registration as a legitimate labor organization, what had been actually submitted to the BLR by the Union was a mere "financial statement," a generous description considering the sheet of paper in fact submitted by the Union. Non-submission of such books of account certified by and attested to by the appropriate officer is a ground which the employer can invoke legitimately to oppose a petition for certification election filed by the local or chapter concerned.

Books of account are quite different in their essential nature from financial statements. In generally accepted accounting practice, the former consist of journals, ledgers and other accounting books (which are registered with the Bureau of Internal Revenue) containing a record of individual transactions wherein monies are received and disbursed by an establishment or entity; entries are made on such books on a day-to-day basis (or as close thereto as is possible). Statements of accounts or financial reports, upon the other hand, merely summarize such individual transactions as have been set out in the books of account and are usually prepared at the end of an accounting period, commonly corresponding to the fiscal year of the establishment or entity concerned. Statements of account and financial reports do not set out or repeat the basic data (i.e., the individual transactions) on which they are based and are, therefore, much less informative sources of cash flow information. Books of account are kept and handled by bookkeepers (employees) of the company or agency; financial statements may be audited statements,i.e., prepared by external independent auditors (certified public accountants).

It is immaterial that the Union, having been organized for less than a year before its application for registration with the BLR, would have had no real opportunity to levy and collect dues and fees from its members which need to be recorded in the books of account. Such accounting books can and must be submitted to the BLR, even if they contain no detailed or extensive entries as yet. The point is that the applicant local or chapter must demonstrate to the BLR that it is entitled to registered status because it has in place a system for accounting for members' contributions to its fund even before it actually receives dues or fees from its members. The controlling intention is to minimize the risk of fraud and diversion in the course of the subsequent formation and growth of the Union.

A union must comply with all the requirements of registration as a legitimate labor organization before it may enjoy the fruits of its certification election victory and before it may exercise the rights of a legitimate labor organization. Registration is a condition sine qua non for the acquisition of legal personality by a labor organization and the exercise of the rights and privileges granted by law to legitimate labor organizations.

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The statutory and regulatory provisions defining the requirements of registration of legitimate labor organizations are an exercise of the overriding police power of the state designed for the protection of workers against potential abuses by unions and federations of unions that recruit them.

81. SUGBUANON RURAL BANK, INC. V. LAGUESMA, 324 SCRA 425 (00)

One of the rights of a legitimate labor organization under Article 242(b) of the Labor Code is the right to be certified as the exclusive representative of all employees in an appropriate bargaining unit for purposes of collective bargaining. Having complied with the requirements of Art. 234, it is our view that respondent union is a legitimate labor union. Article 257 of the Labor Code mandates that a certification election shall AUTOMATICALLY be conducted by the Med-Arbiter upon the filing of a petition by a legitimate labor organization. Nothing is said therein that prohibits such automatic conduct of the certification election if the management appeals on the issue of the validity of the union's registration.

6. ACTION OR DENIAL OF APPLICATION AND REMEDY – 235-236

Art. 235. Action on application. The Bureau shall act on all applications for registration within thirty (30) days from filing.All requisite documents and papers shall be certified under oath by the secretary or the treasurer of the organization, as the case may be, and attested to by its president. Art. 236. Denial of registration; appeal. The decision of the Labor Relations Division in the regional office denying registration may be appealed by the applicant union to the Bureau within 10 days from receipt of notice thereof.

82. SAN MIGUEL CORPORATION, ETC. V. SAN MIGUEL CORPORATION, ETC. 467

SCRA 107 (05)

Background: The respondent union, a chapter of a national federation, filed a petition for certification election. Petitioner corporation sought to dismiss the petition on the sole ground that the union was not listed or included in the roster of legitimate labor organizations as released by DOLE Regional Office No. VII on July 24, 1998. Thus, on July 29, 1998, the union submitted to the BLR the same documents earlier attached to its petition for certification. The accompanying letter, signed by union president, stated that the documents were submitted in compliance with the requirements for the creation of a local/chapter, and it was hoped that the submissions would facilitate the listing of respondent under the roster of legitimate labor organizations. Thus, the issue here was whether or not the union had legal personality at the time it filed the petition for certification election.

Ruling: The court cited jurisprudence to say that the issuance of the certificate of registration by the Bureau or Regional Office is not the operative act that vests legal personality upon a local/chapter under Department Order No. 9. Such legal personality is acquired from the filing of the complete documentary requirements enumerated in Section 1, Rule VI. Admittedly, the manner by which respondent was deemed to have acquired legal personality by the DOLE and the Court of Appeals was not in strict conformity with the provisions of Department Order No. 9.

In regular order, it is the federation or national union, already in possession of legal personality, which initiates the creation of the local/chapter. It issues a charter certificate indicating the creation or establishment of the local/chapter. It then submits this charter certificate, along with the names of the local/chapter's officers, constitution and by-laws to the Regional Office or Bureau. It is the submission of these documents, certified under oath by the Secretary or Treasurer of the local/chapter and attested by the

President, which vests legal personality in the local/chapter, which is then free to file on its own a petition for certification election.

In this case, the federation in question did not submit any of these documentary requirements to the Regional Office or Bureau. It did however issue a charter certificate to the putative local/chapter. The union then submitted the charter certificate along with the other documentary requirements to the Regional Office, but not for the specific purpose of creating the local/chapter, but for filing the petition for certification election.

It could be properly said that at the exact moment respondent was filing the petition for certification, it did not yet possess any legal personality, since the requisites for acquisition of legal personality under Section 3, Rule VI of Department Order No. 9 had not yet been complied with. It could also be discerned that the intention of the Labor Code and its Implementing Rules that only those labor organizations that have acquired legal personality are capacitated to file petitions for certification elections. Such is the general rule.

Yet there are peculiar circumstances in this case that allow the Court to rule that respondent acquired the requisite legal personality at the same time it filed the petition for certification election. The Court acknowledges that the strict letter of the procedural rule was not complied with. However, labor laws are generally construed liberally in favor of labor, especially if doing so affirms the constitutionally guaranteed right to self-organization.

True enough, there was no attempt made by the national federation, or the local/chapter for that matter, to submit the enumerated documentary requirements to the Regional Office or Bureau for the specific purpose of creating the local/chapter. However, these same documents were submitted by the local/chapter to the Regional Office as attachments to its petition for certification election. Under Section 3, Rule VI of Department Order No. 9, it is the submission of these same documents that operates to vest legal personality on the local/chapter.

83. UMALI V. LOVINA, 86 P 313 (51)

Section 3 of Commonwealth Act 213 provides that after the filing of an application to register and operate as a legitimate labor organization, the Secretary of Labor "shall conduct an investigation of the activities of the applying labor organization and if, on such investigation, it shall appear that the applicant is entitled to registration, he shall issue a permit therefor upon payment of the registration fee of five pesos. It is claimed that this investigation has not been completed or accomplished because of the union's failure to fill out a questionnaire. An investigation to be conducted by the Secretary of Labor need not take the form of a questionnaire. What is asked in the questionnaire may be secured by other means. He or his representative should conduct and complete that investigation within a reasonable time. The failure of the officials of the petitioner's union to answer or fill out the questionnaire is no lawful excuse or reason for the respondent to neglect the performance of his duty of conducting and completing the investigation required by section 3 of Commonwealth Act 213.

84. VASSAR INDUSTRIES EMPLOYEES UNION V. ESTRELLA, 82 SCRA 280 (78) As long as an applicant union complies with all the legal requirements for registration, it becomes the BLR’s ministerial duty to register the union. It suffices then to order that petitioner Union be registered, there being no legal obstacle to such a step and the duty of the Bureau of Labor Relations being clear.



III. CANCELLATION OF UNION CERTIFICATE REGISTRATION 238-238-A, 239

Article 238. Cancellation of registration. - The certificate of registration of any legitimate labor organization, whether national or local, may be cancelled by the Bureau, after due hearing, only on the grounds specified in Article 239 hereof. (As amended by Section 3, Republic Act No. 9481 which lapsed into law on May 25, 2007 and became effective on June 14, 2007). Article 238-A. Effect of a petition for cancellation of registration. - A petition for cancellation of union registration shall not suspend the proceedings for certification election nor shall it prevent the filing of a petition for certification election. In case of cancellation, nothing herein shall restrict the right of the union to seek just and equitable remedies in the appropriate courts. (As inserted by Section 4, Republic Act No. 9481 which lapsed into law on May 25, 2007 and became effective on June 14, 2007). Article 239. Grounds for cancellation of union registration.- The following may constitute grounds for cancellation of union registration: (a) Misrepresentation, false statement or fraud in connection with the adoption or ratification of the constitution and by-laws or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification; (b) Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election of officers, and the list of voters; (c) Voluntary dissolution by the members. (As amended by Section 5, Republic Act No. 9481 which lapsed into law on May 25, 2007 and became effective on June 14, 2007).

85. MARIWASA ETC. V SEC. DOLE, 608 SCRA 706 (09)

For the purpose of de-certifying a union such as respondent, it must be shown that there was misrepresentation, false statement or fraud in connection with the adoption or ratification of the constitution and by-laws or amendments thereto; the minutes of ratification; or, in connection with the election of officers, the minutes of the election of officers, the list of voters, or failure to submit these documents together with the list of the newly elected-appointed officers and their postal addresses to the BLR.

The bare fact that two signatures appeared twice on the list of those who participated in the organizational meeting would not, to our mind, provide a valid reason to cancel respondent's certificate of registration. The cancellation of a union's registration doubtless has an impairing dimension on the right of labor to self-organization. For fraud and misrepresentation to be grounds for cancellation of union registration under the Labor Code, the nature of the fraud and misrepresentation must be grave and compelling enough to vitiate the consent of a majority of union members.

86. STA. LUCIA ETC. V SECRETARY OF LABOR, 596 SCRA 92 (09)

The inclusion in the union of disqualified employees is not among the grounds for cancellation of registration, unless such inclusion is due to misrepresentation, false statement or fraud under the circumstances enumerated in Sections (a) to (c) of Article 239 of the Labor Code. Thus, CLUP-SLECC and its Affiliates Workers Union, having been validly issued a certificate of registration, should be considered as having acquired juridical personality which may not be attacked collaterally. The proper procedure for SLECC [the employer] is to file a petition for cancellation of certificate of registration of CLUP-SLECC and its Affiliates Workers Union and not to immediately commence voluntary recognition proceedings with SMSLEC. IV. UNION-MEMBER RELATIONS – 241

Art. 241. Rights and conditions of membership in a labor organization. The following are the rights and conditions of membership in a labor organization:

1. No arbitrary or excessive initiation fees shall be required of the members of a legitimate labor organization nor shall arbitrary, excessive or oppressive fine and forfeiture be imposed; 2. The members shall be entitled to full and detailed reports from their officers and representatives of all financial transactions as provided for in the constitution and by-laws of the organization; 3. The members shall directly elect their officers, including those of the national union or federation, to which they or their union is affiliated, by secret ballot at intervals of five (5) years. No qualification requirements for candidacy to any position shall be imposed other than membership in good standing in subject labor organization. The secretary or any other responsible union officer shall furnish the Secretary of Labor and Employment with a list of the newly-elected officers, together with the appointive officers or agents who are entrusted with the handling of funds, within thirty (30) calendar days after the election of officers or from the occurrence of any change in the list of officers of the labor organization; (As amended by Section 16, Republic Act No. 6715, March 21, 1989) 4. The members shall determine by secret ballot, after due deliberation, any question of major policy affecting the entire membership of the organization, unless the nature of the organization or force majeure renders such secret ballot impractical, in which case, the board of directors of the organization may make the decision in behalf of the general membership; 5. No labor organization shall knowingly admit as members or continue in membership any individual who belongs to a subversive organization or who is engaged directly or indirectly in any subversive activity; 6. No person who has been convicted of a crime involving moral turpitude shall be eligible for election as a union officer or for appointment to any position in the union; 7. No officer, agent or member of a labor organization shall collect any fees, dues, or other contributions in its behalf or make any disbursement of its money or funds unless he is duly authorized pursuant to its constitution and by-laws; 8. Every payment of fees, dues or other contributions by a member shall be evidenced by a receipt signed by the officer or agent making the collection and entered into the record of the organization to be kept and maintained for the purpose; 9. The funds of the organization shall not be applied for any purpose or object other than those expressly provided by its constitution and by-laws or those expressly authorized by written resolution adopted by the majority of the members at a general meeting duly called for the purpose; 10. Every income or revenue of the organization shall be evidenced by a record showing its source, and every expenditure of its funds shall be evidenced by a receipt from the person to whom the payment is made, which shall state the date, place and purpose of such payment. Such record or receipt shall form part of the financial records of the organization. Any action involving the funds of the organization shall prescribe after three (3) years from the date of submission of the annual financial report to the Department of Labor and Employment or from the date the same should have been submitted as required by law, whichever comes earlier: Provided, That this provision shall apply only to a legitimate labor organization which has submitted the financial report requirements under this Code: Provided, further, that failure of any labor organization to comply with the periodic financial reports required by law and such rules and regulations promulgated thereunder six (6) months after the effectivity of this Act shall automatically result in the cancellation of union registration of such labor organization; (As amended by Section 16, Republic Act No. 6715, March 21, 1989) 11. The officers of any labor organization shall not be paid any compensation other than the salaries and expenses due to their positions as specifically provided for in its constitution and by-laws, or in a written resolution duly authorized by a majority of all the members at a general membership meeting duly called for the purpose. The minutes of the meeting and the list of participants and ballots cast shall be subject to inspection by the Secretary of Labor or his duly authorized representatives. Any irregularities in the approval of the resolutions shall be a ground for impeachment or expulsion from the organization; 12. The treasurer of any labor organization and every officer thereof who is responsible for the account of such organization or for the collection, management, disbursement, custody or control of the funds, moneys and



other properties of the organization, shall render to the organization and to its members a true and correct account of all moneys received and paid by him since he assumed office or since the last day on which he rendered such account, and of all bonds, securities and other properties of the organization entrusted to his custody or under his control. The rendering of such account shall be made: 1. At least once a year within thirty (30) days after the close of its fiscal year; 2. At such other times as may be required by a resolution of the majority of the members of the organization; and 3. Upon vacating his office. The account shall be duly audited and verified by affidavit and a copy thereof shall be furnished the Secretary of Labor. 13. The books of accounts and other records of the financial activities of any labor organization shall be open to inspection by any officer or member thereof during office hours; 14. No special assessment or other extraordinary fees may be levied upon the members of a labor organization unless authorized by a written resolution of a majority of all the members in a general membership meeting duly called for the purpose. The secretary of the organization shall record the minutes of the meeting including the list of all members present, the votes cast, the purpose of the special assessment or fees and the recipient of such assessment or fees. The record shall be attested to by the president. 15. Other than for mandatory activities under the Code, no special assessments, attorney’s fees, negotiation fees or any other extraordinary fees may be checked off from any amount due to an employee without an individual written authorization duly signed by the employee. The authorization should specifically state the amount, purpose and beneficiary of the deduction; and 16. It shall be the duty of any labor organization and its officers to inform its members on the provisions of its constitution and by-laws, collective bargaining agreement, the prevailing labor relations system and all their rights and obligations under existing labor laws. For this purpose, registered labor organizations may assess reasonable dues to finance labor relations seminars and other labor education activities. Any violation of the above rights and conditions of membership shall be a ground for cancellation of union registration or expulsion of officers from office, whichever is appropriate. At least thirty percent (30%) of the members of a union or any member or members specially concerned may report such violation to the Bureau. The Bureau shall have the power to hear and decide any reported violation to mete the appropriate penalty. Criminal and civil liabilities arising from violations of above rights and conditions of membership shall continue to be under the jurisdiction of ordinary courts. ILO CONVENTION NO. 87- Art. 3 1. Workers' and employers' organizations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes. 2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.

A. CONSTITUTION AND BY-LAWS

87. SAN MIGUEL CORPORATION, ETC. V. SAN MIGUEL, ETC. 533 SCRA 125 (07)

A duly registered federation or national union may directly create a local or chapter by submitting to the DOLE Regional Office or to the BLR two copies of the following:

(a)A charter certificate issued by the federation or national union indicating the creation or establishment of the local/chapter; (b)The names of the local/chapter's officers, their addresses, and the principal office of the local/chapter; and (c)The local/chapter's constitution and by-laws; Provided, That where the local/chapter's constitution and by-laws is the same as that of the federation or national union, this fact shall be indicated accordingly.SACTIH

All the foregoing supporting requirements shall be certified under oath by the Secretary or the Treasurer of the local/chapter and attested to by its President.

The intent of the law in imposing less requirements in the case of a branch or local of a registered federation or national union is to encourage the affiliation of a local union with a federation or national union in order to increase the local union's bargaining powers respecting terms and conditions of labor.

Note: Read the case over and over again, but couldn’t find anything else related to constitution and by-laws, as indicated in this part of the syllabus.

B. NATURE OF RELATIONSHIP

88. HEIRS OF CRUZ V. CIR, 30 SCRA 917 (69)

Just as this Court has stricken down unjust exploitation of laborers by oppressive employers, so will it strike down their unfair treatment by their own unworthy leaders. The Constitution enjoins the State to afford protection to labor. Fair dealing is equally demanded of unions as well as of employers in their dealings with employees. The union has been evolved as an organization of collective strength for the protection of labor against the unjust exactions of capital, but equally important is the requirement of fair dealing between the union and its members, which is fiduciary in nature, and arises out of two factors: "one is the degree of dependence of the individual employee on the union organization; the other, a corollary of the first, is the comprehensive power vested in the union with respect to the individual." The union may, be considered but the agent of its members for the purpose of securing for them fair and just wages and good working conditions and is subject to the obligation of giving the members as its principals all information relevant to union and labor matters entrusted to it. As already discussed above, the union leadership in the case at bar was recreant in its duty towards the union members in apparently having failed to disclose to the union members the full situation of their judgment credit against respondent.

A. ISSUES

1. Admission and Retention of Membership – 249 (a) 277 (c)

Art. 249. 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;

Art. 277. Miscellaneous provisions. c. Any employee, whether employed for a definite period or not, shall, beginning on his first day of service, be considered as an employee for purposes of membership in any labor union. (As amended by Section 33, Republic Act No. 6715)

89. UST FACULTY UNION V. BITONIO, 318 SCRA 185 (99)

Whether employed for a definite period or not, any employee shall be considered as such, beginning on his first day of service, for purposes of membership in a labor union. Corollary to this right is the prerogative not to join, affiliate with or assist a labor union. Therefore, to become a union member, an employee must, as a rule, not only signify the intent to become one, but also take some positive steps to realize that intent. The procedure for union membership is



usually embodied in the union’s constitution and by-laws. An employee who becomes a union member acquires the rights and the concomitant obligations that go with this new status and becomes bound by the union’s rules and regulations.

90. SALUNGA V. CIR, 21 SCRA 216 (67) Although, generally, a state may not compel ordinary voluntary associations to admit thereto any given individual, because membership therein may be accorded or withheld as a matter of privilege, the rule is qualified in respect of labor unions holding a monopoly in the supply of labor. The closed shop and the union shop cause the admission requirements of trade union to become affected with the public interest. Consequently, it is well settled that union shops are not entitled to arbitrarily exclude qualified applicants for membership, and a closed-shop provision would not justify the employer in discharging, or a union in insisting upon the discharge of, an employee whom the union thus refuses to admit to membership, without any reasonable ground therefor. If said unions may be compelled to admit new members, who have the requisite qualifications, with more reason may the law and the courts exercise the coercive power when the employee involved is a long standing union member. Surely, he may, at least, invoke the rights of those who seek admission for the first time, and can not arbitrarily he denied readmission.

2. Discipline – Due Process Rules – 279; 277 (b)

Art. 277. Miscellaneous provisions. b. Subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal except for a just and authorized cause and without prejudice to the requirement of notice under Article 283 of this Code, the employer shall furnish the worker whose employment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires in accordance with company rules and regulations promulgated pursuant to guidelines set by the Department of Labor and Employment. Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the National Labor Relations Commission. The burden of proving that the termination was for a valid or authorized cause shall rest on the employer. The Secretary of the Department of Labor and Employment may suspend the effects of the termination pending resolution of the dispute in the event of a prima facie finding by the appropriate official of the Department of Labor and Employment before whom such dispute is pending that the termination may cause a serious labor dispute or is in implementation of a mass lay-off. (As amended by Section 33, RA 6715, March 21, 1989) Art. 279. Security of tenure. In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. (As amended by Section 34, Republic Act No. 6715, March 21, 1989)

91. BUGAY V. KAPISANAN NG MGA MANGGAGAWA SA MRR, 4 SCRA 487 (62)

Bugay’s affiliation with the Kapisanan was never terminated. Thus, he is entitled to all the rights and obligations appertaining to every member of the Kapisanan Union actions, whether favorable or otherwise, must be taken by the chapters within a period of ten days from the time they receive the resolution. Even under the assumption that the proceedings against Bugay were regular, the resolution in question never had any valid effect on his union

membership. Considering that he has been unduly and discriminatorily deprived of such rights and obligations, the Court finds, and so holds, that the Kapisanan, by their act and conduct, have engaged in and are engaging in ULP.

It should be observed that the main basis of Bugay's action is his claim that because of the ULP committed by the officers of defendant union as found by the CIR and the SC, he has suffered moral damages. It is true that the decisions both of the CIR and SC do not contain any statement that the charges preferred by the officers of the union against him which resulted in his expulsion were "trumped up" or fabricated, or that said officers acted maliciously or in bad faith, but the fact remains that the two courts have found that his expulsion was illegal because of the irregularities committed in his investigation. In effect, it was found that not only has he not been given an opportunity to defend himself but his expulsion was not submitted to the different chapters of the union as required by its constitution and by-laws.

92. VILLAR V. INCIONG, 121 SCRA 444 (83)

That PAFLU [the federation] had the authority to investigate petitioners on the charges filed by their co-employees in the local union and after finding them guilty at charged, to expel them from the roll of membership of the Amigo Employees Union-PAFLU is clear under the constitution of the PAFLU to which the local union was affiliated. And pursuant to the security clause of the new CBA, reiterating the same clause in the old CBA, PAFLU was justified in applying said security clause. Recognized and salutary is the principle that when a labor union affiliates with a mother union, it becomes bound by the laws and regulations of the parent organization. It is undisputable that herein petitioners were members of the Amigo Employees Union at the time said union war affiliated with PAFLU, hence, under the aforesaid principle, they are bound by the laws and regulations of PAFLU.

It is true that under the Implementing Rules and Regulations of the Labor Code, in case of intra-union disputes, redress must first be sought within the organization itself in accordance with its constitution and by-laws. However, it has been held that this requirement is not absolute but yields to exception under varying circumstances. In the case at bar, the petitioners were charged by the officers of the Amigo Employees Union-PAFLU themselves who were also members of the Board of Directors of said local union. Thus, were the petitioners to be charged and investigated according to the local union's constitution, they would have been tried by a trial committee of three (3) elected among the members of the Board who are themselves the accusers. Petitioners would be in a far worse position had this procedure been followed. Nonetheless, petitioners admit in their petition that two (2) of the six (6) charges, i.e. disaffiliation and filing a petition for certification election, are not intra-union matters and, therefore, are cognizable by PAFPLU.

Inherent in every labor union, or any organization for that matter, is the right of self-preservation. When members of a labor union, therefore, sow the seeds of dissension and strife within the union; when they seek the disintegration and destruction of the very union to which they belong, they thereby forfeit their rights to remain as members of the union which they seek to destroy. Prudence and equity, as well as the dictates of law and justice, therefore, compelling mandate the adoption by the labor union of such corrective and remedial measures in keeping with its laws and regulations, for its preservation and continued existence; lest by its folly and inaction, the labor union crumble and fall.



3. Election Officers – Qualifications, Manner of Election, Tenure and Compensation – 241 (c) (f) (k)

Art. 241. Rights and conditions of membership in a labor organization. The following are the rights and conditions of membership in a labor organization: c. The members shall directly elect their officers, including those of the national union or federation, to which they or their union is affiliated, by secret ballot at intervals of five (5) years. No qualification requirements for candidacy to any position shall be imposed other than membership in good standing in subject labor organization. The secretary or any other responsible union officer shall furnish the Secretary of Labor and Employment with a list of the newly-elected officers, together with the appointive officers or agents who are entrusted with the handling of funds, within thirty (30) calendar days after the election of officers or from the occurrence of any change in the list of officers of the labor organization; (As amended by Section 16, Republic Act No. 6715, March 21, 1989) f. No person who has been convicted of a crime involving moral turpitude shall be eligible for election as a union officer or for appointment to any position in the union; k. The officers of any labor organization shall not be paid any compensation other than the salaries and expenses due to their positions as specifically provided for in its constitution and by-laws, or in a written resolution duly authorized by a majority of all the members at a general membership meeting duly called for the purpose. The minutes of the meeting and the list of participants and ballots cast shall be subject to inspection by the Secretary of Labor or his duly authorized representatives. Any irregularities in the approval of the resolutions shall be a ground for impeachment or expulsion from the organization;

a. Voters List

93. TANCINCO V. CALLEJA, 157 SCRA 203 (88)

That 51 of the 56 disenfranchised voters were not yet union members at the time of the election of union officers because their names do not appear in the records of the Union does not have a leg to stand on. Submission of the employees names with the BLR as qualified members of the union is not a condition sine qua non to enable said members to vote in the election of union's officers. It is true that under article 242(c) of the Labor Code, as amended, only members of the union can participate in the election of union officers. The question however of eligibility to vote may be determined through the use of the payroll and employee's status during the applicable payroll period.

In this case, considering that none of the parties insisted on the use of the payroll period-list as voting list and considering further that the 51 remaining employees were correctly ruled to be qualified for membership, their act of joining the election by casting their votes is a clear manifestation of their intention to join the union.

94. UST FACULTY UNION V. BITONIO, 318 SCRA 185 (99)

A union election is held pursuant to the union’s constitution and bylaws, and the right to vote in it is enjoyed only by union members. A union election should be distinguished from a certification election, which is the process of determining, through secret ballot, the sole and exclusive bargaining agent of the employees in the appropriate bargaining unit, for purposes of collective bargaining. Specifically, the purpose of a certification election is to ascertain whether or not a majority of the employees wish to be represented by a labor organization and, in the affirmative case, by whichparticular labor organization. In a certification election, all employees belonging to the appropriate bargaining unit can vote. Therefore, a union member who likewise belongs to the appropriate bargaining unit is entitled to vote in said

election. However, the reverse is not always true; an employee belonging to the appropriate bargaining unit but who is not a member of the union cannot vote in the union election, unless otherwise authorized by the constitution and bylaws of the union. Verily, union affairs and elections cannot be decided in a non- union activity. In both elections, there are procedures to be followed. Thus, the October 4, 1996 election cannot properly be called a union election, because the procedure laid down in the USTFU's CBL for the election of officers was not followed. It could not have been a certification election either, because representation was not the issue, and the proper procedure for such election was not followed. The participation of non- union members in the election aggravated its irregularity.

The importance of a union’s constitution and bylaws (CBL) cannot be overemphasized. They embody a covenant between a union and its members and constitute the fundamental law governing the members' rights and obligations. As such, the union’s constitution and bylaws should be upheld, as long as they are not contrary to law, good morals or public policy. The October 4, 1996 election was tainted with irregularities because of the following reasons. First, the October 4, 1996 assembly was not called by the USTFU. It was merely a convocation of faculty clubs, as indicated in the memorandum sent to all faculty members by Fr. Rodel Aligan, OP, the secretary general of the University of Santo Tomas. It was not convened in accordance with the provision on general membership meetings as found in Article VIII of the USTFU's CBL. Unquestionably, the assembly was not a union meeting. It was in fact a gathering that was called and participated in by management and non- union members. By no legal fiat was such assembly transformed into a union activity by the participation of some union members. Second, there was no commission on elections to oversee the election, as mandated by Sections 1 and 2 of Article IX of the USTFU's CBL. Third, the purported election was not done by secret balloting, in violation of Section 6, Article IX of the USTFU's CBL, as well as Article 241 (c) of the Labor Code. In Rodriguez v. Director, Bureau of Labor Relations, we invalidated the local union elections held at the wrong date without prior notice to members and conducted without regard for duly prescribed ground rules. We held that the proceedings were rendered void by the lack of due process — undue haste, lack of adequate safeguards to ensure integrity of the voting, and the absence of the notice of the dates of balloting.

b. Disqualification Candidate

95. MANALAD V. TRAJANO, 174 SCRA 322 (89) Doctrine: Case: Court was asked to disqualify a candidate already elected for an alleged failure to follow a previous resolution of the court. Court held: Absent overriding considerations to the contrary, the will of the majority in the latter elections should be respected; where people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded of forgave his faults or misconduct, if he had been guilty of any.

96. UST, ETC. V. UST, ETC. 584 SCRA 684 (09) Doctrine: (Citing UST v. Bitonio (99)): An election is held to be void because of certain irregularities: First, assembly was not called by the Union, it was a mere convocation and not convened in accordance with the Union’s Constitution and By-Laws (CBL). Second, there was no commission on elections to oversee the election as mandated by their CBL. And Third, purported election was not done by secret



balloting, in violation of their CBL, as well as Article 241 (c) of the Labor Code. A union election is held pursuant to the union’s constitution and bylaws, and the right to vote in it is enjoyed only by union members.

c. Expulsion Remedy

97. KAPISANAN NG MANGGAGAWANG PINAGYAKAP (KMP) V. TRAJANO 134

SCRA 236 (85) Doctrine: The remedy against erring union officers is not referendum but union expulsion. If the union officers (also petitioners) were guilty of the alleged acts imputed against them (falsification and misrepresentation), said public respondent pursuant to Article 242 of the New Labor Code and in the light of Our ruling in Duyag vs. Inciong, should have meted out the appropriate penalty on them, i.e., to expel them from the Union, as prayed for, and not call for a referendum to decide the issue.

d. Election Invalid

98. RODRIGUEZ V. DIRECTOR BUREAU OF LABOR RELATIONS 165 SCRA 239

(88) Doctrine: An election attended by undue haste, lack of adequate safeguards to ensure integrity of the voting, and absence of notice of the dates of balloting will render the proceedings void. Free and honest elections are indispensable to the enjoyment by employees and workers of their constitutionally protected right to self-organization.

4. MAJOR POLICY MATTER – 241 (D)

Art. 241. Rights and conditions of membership in a labor organization. The following are the rights and conditions of membership in a labor organization: d. The members shall determine by secret ballot, after due deliberation, any question of major policy affecting the entire membership of the organization, unless the nature of the organization or force majeure renders such secret ballot impractical, in which case, the board of directors of the organization may make the decision in behalf of the general membership;

99. HALILI V. CIR 136 SCRA 112 (85)

Doctrine: The retainer's contract between a lawyer and the Union was considered anomalous and even illegal as well as unethical since the contract was executed only between the lawyer and the officers of the Union chosen by about 125 members only. It was not a contract with the general membership, only 14% of the total membership of 897 was represented.

5. Union Funds – 241 (b), (g), (h), (i), (j), (k), (l), (m), (o); 274 Art. 241. Rights and conditions of membership in a labor organization. The following are the rights and conditions of membership in a labor organization: b. The members shall be entitled to full and detailed reports from their

officers and representatives of all financial transactions as provided for in the constitution and by-laws of the organization;

g. No officer, agent or member of a labor organization shall collect any fees, dues, or other contributions in its behalf or make any disbursement of its money or funds unless he is duly authorized pursuant to its constitution and by-laws;

h. Every payment of fees, dues or other contributions by a member shall be evidenced by a receipt signed by the officer or agent making the collection and entered into the record of the organization to be kept and

maintained for the purpose; i. The funds of the organization shall not be applied for any purpose or

object other than those expressly provided by its constitution and by-laws or those expressly authorized by written resolution adopted by the majority of the members at a general meeting duly called for the purpose;

j. Every income or revenue of the organization shall be evidenced by a record showing its source, and every expenditure of its funds shall be evidenced by a receipt from the person to whom the payment is made, which shall state the date, place and purpose of such payment. Such record or receipt shall form part of the financial records of the organization.

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

k. The officers of any labor organization shall not be paid any compensation other than the salaries and expenses due to their positions as specifically provided for in its constitution and by-laws, or in a written resolution duly authorized by a majority of all the members at a general membership meeting duly called for the purpose. The minutes of the meeting and the list of participants and ballots cast shall be subject to inspection by the Secretary of Labor or his duly authorized representatives. Any irregularities in the approval of the resolutions shall be a ground for impeachment or expulsion from the organization;

l. The treasurer of any labor organization and every officer thereof who is responsible for the account of such organization or for the collection, management, disbursement, custody or control of the funds, moneys and other properties of the organization, shall render to the organization and to its members a true and correct account of all moneys received and paid by him since he assumed office or since the last day on which he rendered such account, and of all bonds, securities and other properties of the organization entrusted to his custody or under his control. The rendering of such account shall be made:

a. At least once a year within thirty (30) days after the close of its fiscal year;

b. At such other times as may be required by a resolution of the majority of the members of the organization; and

c. Upon vacating his office. The account shall be duly audited and verified by affidavit and a copy thereof shall be furnished the Secretary of Labor.

m. The books of accounts and other records of the financial activities of any labor organization shall be open to inspection by any officer or member thereof during office hours; xxx

o. Other than for mandatory activities under the Code, no special assessments, attorney’s fees, negotiation fees or any other extraordinary fees may be checked off from any amount due to an employee without an individual written authorization duly signed by the employee. The authorization should specifically state the amount, purpose and beneficiary of the deduction;

Art. 274. Visitorial power. The Secretary of Labor and Employment or his duly authorized representative is hereby empowered to inquire into the financial activities of legitimate labor organizations upon the filing of a complaint under oath and duly supported by the written consent of at least twenty percent (20%) of the total membership of the labor organization concerned and to examine their books of accounts and other records to determine compliance or non-compliance with the law and to prosecute any violations of the law and



the union constitution and by-laws: Provided, That such inquiry or examination shall not be conducted during the sixty (60)-day freedom period nor within the thirty (30) days immediately preceding the date of election of union officials. (As amended by Section 31, Republic Act No. 6715, March 21, 1989)

a. Source – Payment – Attorney’s Fees – 222 cf. 241 (n)

Art. 222. Appearances and Fees. a. Non-lawyers may appear before the Commission or any Labor Arbiter only:

1. If they represent themselves; or 2. If they represent their organization or members thereof.

b. No attorney’s fees, negotiation fees or similar charges of any kind arising from any collective bargaining agreement shall be imposed on any individual member of the contracting union: Provided, However, that attorney’s fees may be charged against union funds in an amount to be agreed upon by the parties. Any contract, agreement or arrangement of any sort to the contrary shall be null and void. (As amended by Presidential Decree No. 1691, May 1, 1980)

Art. 241. Rights and conditions of membership in a labor organization. The following are the rights and conditions of membership in a labor organization: n. No special assessment or other extraordinary fees may be levied upon the

members of a labor organization unless authorized by a written resolution of a majority of all the members in a general membership meeting duly called for the purpose. The secretary of the organization shall record the minutes of the meeting including the list of all members present, the votes cast, the purpose of the special assessment or fees and the recipient of such assessment or fees. The record shall be attested to by the president.

100. PACIFIC BANKING CORPORATION V. CLAVE 128 SCRA 112 (84)

Doctrine: The Attorney’s fees of the lawyer who assisted the union president in negotiating the CBA cannot be deducted from the monetary benefits awarded in a CBA. Article 222 ordains that union funds should be used for the payment of attorney’s fees. The amount awarded in the CBA is not part of the union funds. It is money of the employees

b. Examination Book –274; Implementing Rules, Book V, RI (c)

Art. 274. Visitorial power. The Secretary of Labor and Employment or his duly authorized representative is hereby empowered to inquire into the financial activities of legitimate labor organizations upon the filing of a complaint under oath and duly supported by the written consent of at least twenty percent (20%) of the total membership of the labor organization concerned and to examine their books of accounts and other records to determine compliance or non-compliance with the law and to prosecute any violations of the law and the union constitution and by-laws: Provided, That such inquiry or examination shall not be conducted during the sixty (60)-day freedom period nor within the thirty (30) days immediately preceding the date of election of union officials. (As amended by Section 31, Republic Act No. 6715, March 21, 1989) Book V, Rule 1, Sec. 1. Definition of Terms (c) “Audit Examiner” refers to an officer of the Bureau or Labor Relations Division of the Regional Office authorized to conduct an audit or examination of the books of accounts, including all funds, assets and other accountabilities of a legitimate labor organization and workers association.

101. 102. DUYAG V. INCIONG 98 SCRA 522 (81)

Doctrine: A Labor Official has the power to expel Union officers and to enforce strictly the law and regulations governing trade unions even if that course of action would curtail the so-called union autonomy and freedom from government interference. It is necessary and desirable that the Bureau of Labor Relations and the Ministry of Labor should exercise close and constant supervision over labor unions, particularly the handling of their funds, so as to forestall

abuses and venalities.

c. Union Dues – 113

Art. 113. Wage deduction. No employer, in his own behalf or in behalf of any person, shall make any deduction from the wages of his employees, except:

a. In cases where the worker is insured with his consent by the employer, and the deduction is to recompense the employer for the amount paid by him as premium on the insurance;

b. For union dues, in cases where the right of the worker or his union to check-off has been recognized by the employer or authorized in writing by the individual worker concerned; and

In cases where the employer is authorized by law or regulations issued by the Secretary of Labor and Employment.

103. RODRIGUEZ V. DIRECTOR BUREAU OF LABOR RELATIONS 165 SCRA 239

(88) Doctrine: A resolution increasing union dues which does not bear the signature of at least 2/3 of the members of the council, contrary to the requirements of the union constitution and by-laws is invalid and will be struck down as illegal and void, arbitrary and oppressive.

6. SOURCE – PAYMENT – SPECIAL ASSESSMENT = 241 (N), (O); 222, 113

Art. 241. Rights and conditions of membership in a labor organization. The following are the rights and conditions of membership in a labor organization: n. No special assessment or other extraordinary fees may be levied upon the

members of a labor organization unless authorized by a written resolution of a majority of all the members in a general membership meeting duly called for the purpose. The secretary of the organization shall record the minutes of the meeting including the list of all members present, the votes cast, the purpose of the special assessment or fees and the recipient of such assessment or fees. The record shall be attested to by the president.

o. Other than for mandatory activities under the Code, no special assessments, attorney’s fees, negotiation fees or any other extraordinary fees may be checked off from any amount due to an employee without an individual written authorization duly signed by the employee. The authorization should specifically state the amount, purpose and beneficiary of the deduction;

Art. 222. Appearances and Fees. a. Non-lawyers may appear before the Commission or any Labor Arbiter only:

1. If they represent themselves; or 2. If they represent their organization or members thereof.

b. No attorney’s fees, negotiation fees or similar charges of any kind arising from any collective bargaining agreement shall be imposed on any individual member of the contracting union: Provided, However, that attorney’s fees may be charged against union funds in an amount to be agreed upon by the parties. Any contract, agreement or arrangement of any sort to the contrary shall be null and void. (As amended by Presidential Decree No. 1691, May 1, 1980)

Art. 113. Wage deduction. No employer, in his own behalf or in behalf of any person, shall make any deduction from the wages of his employees, except: c. In cases where the worker is insured with his consent by the employer, and

the deduction is to recompense the employer for the amount paid by him as premium on the insurance;

d. For union dues, in cases where the right of the worker or his union to check-off has been recognized by the employer or authorized in writing by the individual worker concerned; and

e. In cases where the employer is authorized by law or regulations issued by the Secretary of Labor and Employment.

104. 105. PALACOL V. CALLEJA 182 SCRA 710 (90)

Doctrine: No check-offs from any amount due employees may be effected without individual written authorizations duly signed by the employees specifically stating the amount, purpose, and beneficiary



of the deduction. This is in accord with the constitutional principle of the State affording full protection to labor. Hence, a special assessment cannot be validly deducted by a labor union from the lump-sum pay of its members, granted under a collective bargaining agreement (CBA).

106. GABRIEL V. SEC. OF LABOR 328 SCRA 247 (00) Doctrine: The Art.24(o) provides: Other than for mandatory activities under the Code, no special assessment, attorney's fees, negotiation fees or any other extraordinary fees may be checked off from any amount due to an employee without an individual written authorization duly signed by the employee. The authorization should specifically state the amount, purpose and beneficiary of the deduction. The check-off (made to pay atty’s fees), made without valid individual authorizations, cannot be held valid. No deduction can be made from the salaries of the concerned employees other than those mandated by law.

107. ABS-CBN, ETC. V. ABS-CBN, ETC. 182 SCRA 710 (90) Doctrine: The provisions for the check off regarding the 10% special assessment for union incidental expenses, attorneys fees and representation expenses are valid if they satisfy the requirements under Art. 241 namely: 1) authorization by a written resolution of the majority of all the members at the general membership meeting duly called for the purpose; 2) secretary's record of the minutes of the meeting; and 3) individual written authorization for check-off duly signed by the employee concerned.

108. VENGCO V. TRAJANO 173 SCRA 155 (89) Doctrine: It is very clear from the above-quoted provision that attorney's fees may not be deducted or checked off from any amount due to an employee without his written consent except for mandatory activities under the Code. A mandatory activity has been defined as a judicial process of settling dispute laid down by the law. The amicable settlement entered into by the management and the union cannot be considered as a mandatory activity under the Code. It is true that the union filed a claim for emergency cost of living allowance and other benefits before the Ministry of Labor. But this case never reached its conclusion in view of the parties' agreement.

109. GALVADORES V. TRAJANO 144 SCRA 138 (86) Doctrine: No check-offs from any amounts due employees may be effected without individual written authorizations duly signed by the employee specifically stating the amount, purpose and beneficiary of the deduction. The question asked in the plebiscite, besides not being explicit, assumed that there was no dispute relative to attorney's fees. The benefits awarded to the employees still formed part of the collective bargaining negotiations although placed already under compulsory arbitration. The compulsory arbitration is not the "mandatory activity" under the Code which dispenses with individual written authorizations for check-offs, notwithstanding its "compulsory" nature.

7. UNION INFORMATION

110. CONTINENTAL CEMENT CORP LABOR UNION V. CONTINENTAL CEMENT, 189

SCRA 134 (90)

The officers of the union have the duty to guide their members to respect the law. Their responsibility is greater than that of the members. Art. 421 (p) provides that “it shall be the duty of any

labor organization and its officers to inform its members on the provisions of its constitution and by-laws, CBA, the prevailing labor relations system and all their rights and obligations under existing labor laws.” Any violation of the above rights and conditions shall be a ground for cancellation of union registration or expulsion of an officer from office.

In this case, the officers of the union urged their members to violate the law and defy the duly constituted authorities. They misinformed their members and led the union to commit an illegal strike. Their dismissal from service is a just penalty for their unlawful acts.

8. ENFORCEMENT AND REMEDIES – PROCEDURE AND SANCTIONS:

JURISDICTION (EXHAUSTION OF INTERNAL REMEDIES)

111. DIOKNO V CACDAC, 526 SCRA 440 (07)

As a general rule, before a party is allowed to seek the intervention of the court, it is a precondition that he should have availed of all the means of administrative processes afforded him. The premature invocation of court intervention is fatal to one’s cause of action. However, there are exceptions to the applicability of this doctrine.

Among the established exceptions are: 1) when the question raised is purely legal; 2) when the administrative body is in estoppel; 3) when the act complained of is patently illegal; 4) when there is urgent need for judicial intervention; 5) when the claim involved is small; 6) when irreparable damage will be suffered; 7) when there is no other plain, speedy, and adequate remedy; 8) when strong public interest is involved; 9) when the subject of the proceeding is private land; 10) in quo warranto proceedings; and 11) where the facts show that there was a violation of due process.

The facts of the case sustain the finding that the private respondents were deprived of due process. Hence, it becomes incumbent upon them to seek the aid of the BLR. To insist on the contrary is to render their exhaustion of remedies within the union as illusory and vain. There was proper application by the Med-Arbiter of the exception to the rule of exhaustion of administrative remedies.

112. SARAPAT V SALANGA, 538 SCRA 324 (07)

Hearings and resolutions of labor disputes are not governed by the strict and technical rules of evidence and procedure observed in the regular courts of law. Technical rules of procedure are not applicable in labor cases, but may apply only by analogy or in a suppletory character, for instance, when there is a need to attain substantial justice and an expeditious, practical and convenient solution to a labor problem.

Even though the issue initially raised on appeal was limited to the Order of the DOLE-NCR Regional Director to hold a general membership meeting, the BLR was justified in taking cognizance of the case to resolve the issue of the propriety of the litigation expenses upon which the 5% special assessment fee was based. The BLR was empowered to rule on the same to avoid further delay of the case. Clearly, consideration of the issue became necessary to arrive at a just decision and complete resolution of the case.

113. DIAMONON V DOLE, 327 SCRA 282 (00)

When the Constitution and By-Laws of Union dictate the remedy for internal dispute, they should be resorted to before recourse can be made to the appropriate administrative or judicial body. A party with an administrative remedy must not merely initiate the prescribed administrative procedure to obtain relief, but also



pursue it to its appropriate conclusion before seeking judicial intervention.

In this case, not only did petitioner fail to comply with Section 2, Rule VIII, Book V of the Implementing Rules of the Labor Code but he also did not exhaust the remedies set forth by the Constitution and by-laws of both unions. In the National Convention of PACIWU and NACUSIP, nothing was heard of petitioner’s complaint against private respondents on the latter’s alleged unauthorized and illegal disbursement of union funds. His failure to seek recourse before the National convention on his complaint against private respondents taints his action with prematurity.

114. VILLAR V INCIONG, 121 SCRA 444 (83)

It is true that under the IRR of the Labor Code, in case of intra-union disputes, redress must first be sought within the organization itself in accordance with its constitution and by-laws. However, it has been held that this requirement is not absolute but yields to exception under varying circumstances.

A case in point would be Kapisanan ng mga Manggagawa sa MRR v Hernandez wherein the complaint was filed against the union and its incumbent officers, some of whom were members of the board of directors. The constitution and by-laws of the union provide that charges for any violations thereof shall be filed before the said board. But if the complainants had done so the board of directors would in effect be acting as respondent investigator and judge at the same time. To follow the procedure indicated would be a farce under the circumstances, where exhaustion of remedies within the union itself would practically amount to a denial of justice or would be illusory or vain, it will not be insisted upon, particularly where property rights of the members are involved, as a condition to the right to invoke the aid of a court

9. ENFORCEMENT AND REMEDIES – PROCEDURE AND SANCTIONS: REMEDY

115. KAPISANAN NG MANGGAGAWANG PINAGYAKAP V TRAJANO, 134 SCRA 236

(85)

In this case, the Med-Arbiter ordered the holding of a referendum, to be conducted under the supervision of the BLR, to decide on the issue of whether to expel or suspend the union officers from their respective positions. Private respondents claimed that the Med-Arbiter erred in calling a referendum to decide the issue. They claim that the appropriate action should be the expulsion of the union officers. Director Trajano however affirmed in toto the order of the Med-Arbiter.

The SC held that If the union officers were guilty of the alleged acts imputed against them, the public respondent pursuant to Article 242 of the New Labor Code and in the light of the ruling in Duyag vs. Inciong, should have meted out the appropriate penalty on them, i.e., to expel them from the Union, as prayed for, and not call for a referendum to decide the issue.

V. UNION AFFILIATION

1. PURPOSE

116. PHILIPPINE SKYLANDERS V NLRC, 375 SCRA 369 (02)

The sole essence of affiliation is to increase, by collective action, the common bargaining power of local unions for the effective enhancement and protection of their interests.

Admittedly, there are times when without succor and support local unions may find it hard, unaided by other support groups, to secure justice for themselves. Yet the local unions remain the basic units of association, free to serve their own interests subject to the

restraints imposed by the constitution and by-laws of the national federation, and free also to renounce the affiliation upon the terms laid down in the agreement which brought such affiliation into existence.

The right of a local union to disaffiliate from its mother federation was upheld in the landmark case of Liberty Cotton Mills Workers Union vs. Liberty Cotton Mills, Inc. Such right is based on the ground that as separate and voluntary associations, local unions do not owe their creation and existence to the national federation to which they are affiliated but, instead, to the will of their members.

2. NATURE OF RELATIONSHIP

117. FILIPINO PIPE AND FOUNDRY CORPORATION, 318 SCRA 68 (99) As enunciated in the case of Liberty Cotton Mills Workers Union v Liberty Cotton Mills Inc., the mother union, acting for and behalf of its affiliate, had the status of an agent while the local union remained the basic unit of the association free to serve the common interest of all its members subject only to the restraints imposed by the constitution and by-laws of the association. The same is true even if the local union is not a legitimate labor organization. The mother federation is a mere agent and the local chapter/union is the principal, notwithstanding the failure of the local union to comply with the procedural requirements that would make it a legitimate labor organization.

3. EFFECT- LEGAL PERSONALITY

118. ADAMSON AND ADAMSON INC. V CIR, 127 SCRA 268 (84)

The issue that was raised in this case was WON a supervisor’s union may affiliate with a federation with which unions of rank-and-file EEs of the same ER are also affiliated. The SC decided in the affirmative and discussed the basic principle that, “The locals are separate and distinct units primarily designed to secure and maintain the equality of bargaining power between the employer and their employee-member in the economic struggle for the fruits of the joint productive effort of labor and capital; and the association of the locals into the national union was in the furtherance of the same end. The essential purpose was the affiliation of the local unions into a common enterprise to increase by collective action the common bargaining power in respect of the terms and conditions of labor. Yet the locals remained the basic units of association; free to serve their own and the common-interest of all, subject to the restraints imposed by the Constitution and By-laws of the Association; and free also to renounce the affiliation for mutual welfare upon the terms laid down in the agreement which brought it into existence.”

The Adamson and Adamson Supervisory Union and the Adamson and Adamson, Inc., Salesmen Association (FFW), have their own respective constitutions and by-laws. They are separately and independently registered of each other. Both sent their separate proposals for collective bar agreements with their employer. There could be no employer influence on rank-and-file organizational activities nor could there be any rank and file influence on the supervisory function of the supervisors because of the representation sought to be proscribed.

RULE – AFFILIATION – COMPARE: 245-A AND CASES

ART. 245. Ineligibility of Managerial Employees to Join any Labor Organization; Right of Supervisory Employees. - Managerial employees are not eligible to join, assist or form any labor organization. Supervisory employees shall not be eligible for membership in the collective bargaining unit of the rank-and-file employees but may join, assist or form separate



collective bargaining units and/or legitimate labor organizations of their own. The rank and file union and the supervisors' union operating within the same establishment may join the same federation or national union ART. 245-A. Effect of Inclusion as Members of Employees Outside the Bargaining Unit. - The inclusion as union members of employees outside the bargaining unit shall not be a ground for the cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership of said union.

119. ADAMSON & ADAMSON V. CIR [127 SCRA 268 (1984)]

Unions formed independently by supervisory and rank-and-file employees of a company may legally affiliate with the same national federation.

(In this case, the rank-and-file employees are not directly under the supervisors who comprise the supervisors' union)

FVS: Adamson & Atlas cases are not good law anymore as they had been modified by Art 245 (as amended by RA 9481)

120. ATLAS LITHOGRAPHIC V. LAGUESMA [205 SCRA 12 (1992)]

Supervisors’ union and R&F unions of the same company, formed independently, are allowed to affiliate with the same national federation where: (a) the federation actively participates in union activity in the

company; and (b) the R&F employees work under the direct supervision of the

members of the supervisors’ union.

On role of supervisor vis-à-vis conflict of interest: o The interests of supervisors on the one hand, and the rank-and-

file employees on the other, are separate and distinct. The functions of supervisors, being recommendatory in nature, are more identified with the interests of the employer. The performance of those functions may, thus, run counter to the interests of the rank-and-file.

o The peculiar role of supervisors is such that while they are not managers, when they recommend action implementing management policy or ask for the discipline or dismissal of subordinates, they identify with the interests of the employer and may act contrary to the interests of the rank-and-file.

121. DE LA SALLE UNIV. MEDICAL CENTER V. LAGUESMA [294 SCRA (1998)]

For the prohibition (for supervisory union and R&F union affiliating with the same national fed) to apply, it is not enough that the supervisory union and the rank-and-file union are affiliated with a single federation. In addition, the supervisors must have direct authority over the rank-and-file employees.

B. LOCAL UNION DISAFFILIATION

1. NATURE RIGHT DISAFFILIATION

122. VOLKSCHEL LABOR UNION V. BLR [137 SCRA 42 (85)]

Local union may lawfully renounce its affiliation with the national federation.

Yet the local unions remain the basic units of association, free to serve their own interests subject to the restraints imposed by the constitution and by-laws of the national federation, and free also to renounce the affiliation upon the terms laid down in the agreement which brought such affiliation into existence.

After having disaffiliated, the national fed has no right to collect union dues from the members of the local union.

Remittance of dues by ER to union/fed. is conditioned on the individual check-off authorization of the union members. Such

authorization, even if declared irrevocable, is good only as long as they remain members of the union concerned.

123. PHILIPPINE LABOR ALLIANCE COUNCIL V. BLR [75 SCRA 162 (1977)]

Once disaffiliation has been demonstrated beyond doubt, a certification election is the most expeditious way of determining which union should be the exclusive bargaining representative of the employees.

124. MALAYANG SAMAHAN NG MGA MANGGAGAWA SA GREENFIELD V. RAMOS

[326 SCRA 428 (2000)]

Disaffiliation is not an act of disloyalty against the mother federation.

A local union has the right to disaffiliate from its mother union or declare its autonomy. A local union, being a separate and voluntary association, is free to serve the interests of all its members including the freedom to disaffiliate or declare its autonomy from the federation to which it belongs when circumstances warrant, in accordance with the constitutional guarantee of freedom of association.

2. RULE – LEGALITY ACT – DISAFFILIATION

125. VILLAR V. INCIONG, SUPRA [121 SCRA 444 (1983)]

Employees have the right to disaffiliate from their union and form a new organization of their own; however, they must suffer the consequences of their separation from the union under the security clause of the CBA (i.e., dismissal from employment).

A closed shop is a valid form of union security, and such provision in a CBA is not a restriction of the right of freedom of association guaranteed by the Constitution.

126. TROPICAL HUT EMPLOYEES UNION V. TROPICAL HUT FOOD MARKET, INC.

[181 SCRA 173 (1990)]

The right of a local union to disaffiliate from its mother federation is well-settled. A local union, being a separate and voluntary association, is free to serve the interest of all its members including the freedom to disaffiliate when circumstances warrant. This right is consistent with the constitutional guarantee of freedom of association.

Also – The Union security clause in the CBA cannot be used to justify the dismissal of members of the union when the local union disaffiliated from the mother federation. CBA imposes dismissal only in case an employee is expelled from the union for joining another federation or for forming another union or who fails or refuses to maintain membership therein.

127. ALEX FERRER V. NLRC [224 SCRA 410 (1993)]

The right of a local union to disaffiliate from a federation in the absence of any provision in the federation’s constitution preventing disaffiliation of a local union is legal.

128. PHILIPPINE SKYLANDERS, INC. V. NLRC [ 375 SCRA 369 (2002)]

Upheld the legality of disaffiliation of the local union from the mother federation.

As to effect. The federation ceases to have any personality to represent the local union in the CBA negotiation (in this case, the fed. filed ULP case against the ER for being excluded from CB negotiation; SC held no ULP).

VI. UNION SECURITY

A. STATUTORY BASIS – 248 (E)



Art. 248. Unfair labor practices of employers. It shall be unlawful for an employer to commit any of the following unfair labor practice: x x x e. To discriminate in regard to wages, hours of work and other terms and

conditions of employment in order to encourage or discourage membership in any labor organization. Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment, except those employees who are already members of another union at the time of the signing of the collective bargaining agreement. 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;

B. RATIONALE – 211 (C)

Art. 211. Declaration of Policy. It is the policy of the State: x x x c. To foster the free and voluntary organization of a strong and united labor movement;

129. ALABANG COUNTRY CLUB, INC. V. NLRC [545 SCRA 351 (2008)]

Enforcement of a union security clause in the CBA is another valid ground for termination of employment. This practice strengthens the union and prevents disunity in the bargaining unit within the duration of the CBA with the threat of expulsion from the union and consequent termination of employment, the union gains more members and strengthens its position against other unions who may wish to claim majority representation.

In terminating the employment of an employee by enforcing the union security clause, the employer needs only to determine and prove that: (1) the union security clause is applicable; (2) the union is requesting for the enforcement of the union security provision in the CBA; and (3) there is sufficient evidence to support the union’s decision to expel the employee from the union.

Definitions:

union shop – when all new regular employees are required to join the union within a certain period as a condition for their continued employment.

maintenance of membership shop – when employees who are union members as of the effective date of the agreement, or who thereafter become members, must maintain union membership as a condition for continued employment until they are promoted or transferred out of the bargaining unit or the agreement is terminated.

130. GUIJARNO V. CIR [52 SCRA 307 (1973)]

A closed shop provision in a CBA must not be given a retroactive effect so as to preclude its being applied to employees in the service (citing Confederated Sons of Labor v. Anakan Lumber Co., et al. ,107 Phil. 915).

A closed shop agreement that is allowed under the Industrial Peace Act should apply to persons to be hired or to employees who are not yet members of any labor organization. It is inapplicable to those already in the service who are members of another union. To hold otherwise would render minority unions at a grave disadvantage and force their members to disaffiliate with them to join the majority union and render nugatory the right of employees to self-organization.

C. VALIDITY AGREEMENT AND AFFECT ON FREEDOM OF CHOICE

131. TANDUAY DISTILLERY LABOR UNION V. NLRC [149 SCRA 470 (1987)] Art 249 (e) of the Labor Code specifically recognizes the closed shop arrangement as a form of union security. The closed shop, the union shop, the maintenance of membership shop, the preferential shop, the maintenance of treasury shop, and check-off provisions are valid forms of union security and strength. They do not constitute ULP nor are they violations of the freedom of association clause of the Constitution

132. ALABANG COUNTRY CLUB, INC. V. NLRC, SUPRA [545 SCRA 351 (08) ] Enforcement of a union security clause in the CBA is another valid ground for termination of employment.

D. TYPES OF UNION SECURITY PROVISIONS

133. INGUILLO ET., AL. V. FIRST PHILIPPINE SCALES, INC. [688 SCRA 471 (2009)]

While Arts. 282-285 of LC did not mention as ground the enforcement of the Union Security Clause in the CBA, the dismissal from employment based on the same is recognized and accepted in our jurisdiction.

“Union security” is a generic term, which is applied to and comprehends “closed shop,” “union shop,” “maintenance of membership” or any other form of agreement which imposes upon employees the obligation to acquire or retain union membership as a condition affecting employment.

union shop – when all new regular employees are required to join the union within a certain period as a condition for their continued employment.

maintenance of membership shop – when employees, who are union members as of the effective date of the agreement, or who thereafter become members, must maintain union membership as a condition for continued employment until they are promoted or transferred out of the bargaining unit or the agreement is terminated.

closed-shop – an enterprise in which, by agreement between the ER and his EEs or their representatives, no person may be employed in any or certain agreed departments of the enterprise unless he or she is, becomes, and, for the duration of the agreement, remains a member in good standing of a union entirely comprised of or of which the employees in interest are a part.

134. ALABANG COUNTRY CLUB, INC. V. NLRC, SUPRA

Enforcement of a union security clause in the CBA is another valid ground for termination of employment. CBA here has union shop and maintenance of membership shop provisions, which are both held valid by the SC. 135. NATIONAL UNION OF WORKERS IN HOTELS, ETC. V. NLRC [567 SCRA 291

(2008)] "Union security" is a generic term which is applied to and comprehends "closed shop," "union shop," "maintenance of membership" or any other form of agreement which imposes upon employees the obligation to acquire or retain union membership as a condition affecting employment.

Art 248(e) of the LC recognizes the

effectivity of a union shop clause.

136. RIZAL LABOR UNION V RIZAL CEMENT CO (17 SCRA 858)

The following CBA provisions does not establish a closed shop, except in a very limited sense namely, that the laborers, employees and workers engaged by the company after the signing of the agreement, must be members of respondent union:



The EMPLOYER agrees in all its branches, units, plants, quarries, warehouses, docks, etc. The UNION agrees to furnish at all time the laborers, employees and all technical helps that the EMPLOYER may require. EMPLOYER, however, reserves its right to accept or reject where they fail to meet its requirements. (Article 1, Sec. 5.)

The EMPLOYER agrees not to have in its employ nor to hire any new employee or laborer unless he is a member of good standing of the UNION, and a bona fide holder of a UNION (NWB) card, provided such new employee or laborer meets the qualifications required by the EMPLOYER. (Article VII, Sec. 1-d).

In order that an employer may be deemed bound, under a collective bargaining agreement, to dismiss employees for non-union membership, the stipulation to this effect must be so clear and unequivocal as to leave no room for doubt thereon (eg. “employees must continue to remain members in good standing of respondent union to keep their jobs…)

137. MANILA CORDAGE CO V CIR (78 SCRA 398)

The CBA provision stating that: “Both parties agree that all employees of the COMPANY who are already members of the UNION at the time of the signing of this AGREEMENT shall continue to remain members of the UNION for the duration of this AGREEMENT.” does not clearly state that maintenance of membership in the Union is a condition of continuous employment in the Company.

F. COVERAGE – WORKER INCLUSION AND EXCLUSION

Art. 248. Unfair labor practices of employers. It shall be unlawful for an employer to commit any of the following unfair labor practice: 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;

138. 139. GUIJARNO V CIR (52 SCRA 307)

A closed shop provision in a CBA must not be given a retroactive effect so as to preclude its being applied to employees in the service… under the Industrial Peace Act it should apply to persons to be hired or to employees who are not yet members of any labor organization and not to those already in the service who are members of another union. To hold otherwise would render minority unions at a grave disadvantage and force their members to disaffiliate with them to join the majority union and render nugatory the right of employees to self-organization.

A closed shop provision may not justify the termination by the employer of an employee who is arbitrarily refused membership to the union without any reasonable ground.

Cases Cited in Guijarno:

Confederated Sons of Labor v Anakan Lumber Co: Without a provision to the effect that the EEs must continue to remain members in good standing of respondent union to keep their jobs, the CBA does not establish a closed-shop proviso and therefore does not affect the right of the company to retain those already

working therefor on or before said date, or those hired or employed subsequently thereto, while they were members of respondent union, but who, thereafter, resign or are expelled therefrom.

Freeman Shirt Mfg v CIR: A closed-shop agreement has been considered as one form of union security whereby only union members can be hired and workers must remain union members in good standing as a condition to continued employment. Such agreement sanctioned under Industrial Peace Act, sec. 4, subsec. a(4), apply to persons to be hired or to employees who are not yet members of any labor organization.

Kapisanan ng mga Manggagawa ng Alak v Hamilton Distillery Co: In the absence of a manifest intent to the contrary, "closed shop" provisions in a collective bargaining agreement apply only to persons to be hired or to employees who are not yet members of any labor organization and that said provisions of the agreement are not applicable to those already in the service at the time of its execution.

G. IMPLEMENTATION – OBLIGATION AND LIABILITIES

140. INQUILLO V FIRST PHILS (68 SCRA 471) In terminating the employment of an employee by enforcing the Union Security Clause, the employer needs only to determine and prove that: (1) the union security clause is applicable; (2) the union is requesting for the enforcement of the union security provision in the CBA; and (3) there is sufficient evidence to support the union's decision to expel the employee from the union or company.

141. NATIONAL UNION OF WORKERS IN HOTELS V NLRC (567 SCRA 291) The dismissal of an employee by the company pursuant to a labor union’s demand in accordance with a union security agreement does not constitute unfair labor practice. An employer is not considered guilty of unfair labor practice if it merely complied in good faith with the request of the certified union for the dismissal of employees expelled from the union pursuant to the union security clause in the Collective Bargaining Agreement.

142. OLVIDO V CA (536 SCRA 73)

GR: When an employer merely complied in good faith with the request of the certified union for the dismissal of employees expelled from the union pursuant to the union security clause in the CBA, the company may not be ordered to grant either backwages or financial assistance in the form of separation pay as a form of penalty.

EX: As the GR is inconsistent with Art279 of the Labor Code as amended by RA 6715, where is adjudged, backwages and other benefits must be awarded from the date of the LA’s decision up to the time the order is actually carried out.

143. MALAYANG SAMAHAN V M. GREENFIELD V RAMOS (326 SCRA 428)

While the union security clauses embodied in the CBA may be validly enforced and that dismissals pursuant thereto may likewise be valid, this, however, does not erode the fundamental requirement of due process. The reason behind the enforcement of union security clauses which is the sanctity and inviolability of contracts cannot override one’s right to due process.

144. ALABANG COUNTRY CLUB V NLRC

Enforcement of a union security clause in the CBA is another valid ground for termination of employment. This practice strengthens the union and prevents disunity in the bargaining unit within the



duration of the CBA with the threat of expulsion from the union and consequent termination of employment the union gains more members and strengthens its position against other unions who may wish to claim majority representation.

In terminating the employment of an employee by enforcing the union security clause, the employer needs only to determine and prove that: (1) the union security clause is applicable; (2) the union is requesting for the enforcement of the union security provision in the CBA; and (3) there is sufficient evidence to support the union’s decision to expel the employee from the union. These requisites constitute just cause for terminating an employee based on the CBA’s union security provision.

Others (Sir’s Additional Cases)

145. CARIÑO V NLRC

For the company to inquire into the lawfulness of the acts of the Union in this regard the expulsion of its members does NOT constitute interference in the administration of Union affairs.

Employer is bound to exercise caution in terminating the services of his employee especially so when it is made upon the request of a labor union pursuant to the CBA. Dismissals must not be arbitrary and capricious…Due process must be observed because it affects not only his position but also his means of livelihood. Employers should therefore respect and protect the rights of their employees, which include the right to labor.

H. FINANCIAL SECURITY – AGENCY SHOP

Art. 113. Wage deduction. No employer, in his own behalf or in behalf of any person, shall make any deduction from the wages of his employees, except: b. For union dues, in cases where the right of the worker or his union to check-

off has been recognized by the employer or authorized in writing by the individual worker concerned;

146. NATIONAL BREWERY V SAN MIGUEL BREWERY (8 SCRA 805) [SUPERSEDED]

The fact whatever benefits the majority union obtains from the ER accrued to its members as well as to non-members alone does not justify the collection of agency fee from nonmembers. The benefits of a CBA are extended to all employees regardless of their membership in the union because to withhold the same from the non-members would be to discriminate against them.

147. DEL PILAR ACADEMY V DEL PILAR ACADEMY EES UNION (553 SCRA 590)

[PREVAILING DOCTRINE]

The collection of agency fees in an amount equivalent to union dues and fees, from employees who are not union members, is recognized by Article 248(e) of the Labor Code

No requirement of written authorization from the non-union employees is necessary if the non-union employees accept the benefits resulting from the CBA.

The employee's acceptance of benefits resulting from a collective bargaining agreement justifies the deduction of agency fees from his pay and the union's entitlement thereto. In this aspect, the legal basis of the union's right to agency fees is neither contractual nor statutory, but quasi-contractual, deriving from the established principle that non-union employees may not unjustly enrich themselves by benefiting from employment conditions negotiated by the bargaining union.

148. HOLY CROSS

A check-off is a process or device whereby the employer, on agreement with the union recognized as the proper bargaining representative, or on prior authorization from its employees,

deducts union dues or agency fees from the latter's wages and remits them directly to the union.

The legal basis of check-off is thus found in statute or in contract. Statutory limitations on check-offs generally require written authorization from each employee to deduct wages; however, a resolution approved and adopted by a majority to the union members at a general meeting will suffice when the right to check-off has been recognized by the employer, including collection of reasonable assessments in connection with mandatory activities of the union, or other special assessments and extraordinary fees.

149. VII. INTERNATIONAL ACTIVITIES OF UNIONS

Art. 269. Prohibition against aliens; exceptions. All aliens, natural or juridical, as well as foreign organizations are strictly prohibited from engaging directly or indirectly in all forms of trade union activities without prejudice to normal contacts between Philippine labor unions and recognized international labor centers: Provided, however, That aliens working in the country with valid permits issued by the Department of Labor and Employment, may exercise the right to self-organization and join or assist labor organizations of their own choosing for purposes of collective bargaining: Provided, further, That said aliens are nationals of a country which grants the same or similar rights to Filipino workers. (As amended by Section 29, Republic Act No. 6715, March 21, 1989) Art. 270. Regulation of foreign assistance. 1. No foreign individual, organization or entity may give any donations, grants

or other forms of assistance, in cash or in kind, directly or indirectly, to any labor organization, group of workers or any auxiliary thereof, such as

cooperatives, credit unions and institutions engaged in research, education or communication, in relation to trade union activities, without prior permission by the Secretary of Labor.

"Trade union activities" shall mean:

1. organization, formation and administration of labor organization; 2. negotiation and administration of collective bargaining agreements; 3. all forms of concerted union action;

4. organizing, managing, or assisting union conventions, meetings, rallies, referenda,

teach-ins, seminars, conferences and institutes; 5. any form of participation or involvement in representation proceedings,

representation elections, consent elections, union elections; and 6. other activities or actions analogous to the foregoing.

b. This prohibition shall equally apply to foreign donations, grants or other forms of assistance, in cash or in kind, given directly or indirectly to any employer or employer’s organization to support any activity or activities affecting trade unions.

c. The Secretary of Labor shall promulgate rules and regulations to regulate and control the giving and receiving of such donations, grants, or other forms of assistance, including the mandatory reporting of the amounts of the donations or grants, the specific recipients thereof, the projects or activities proposed to be supported, and their duration.

Art. 271. Applicability to farm tenants and rural workers. The provisions of this Title pertaining to foreign organizations and activities shall be deemed applicable likewise to all organizations of farm tenants, rural workers, and the like: Provided, That in appropriate cases, the Secretary of Agrarian Reform shall exercise the powers and responsibilities vested by this Title in the Secretary of Labor.

PART 4: PRECONDITIONS TO COLLECTIVE BARGAINING,

APPROPRIATE BARGAINING UNIT AND MAJORITY STATUS

A. APPROPRIATE BARGAINING UNIT

1. DEFINITION AND ROLE IN LAW



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

Any provision of law to the contrary notwithstanding, workers shall have the right, subject to such rules and regulations as the Secretary of Labor and Employment may promulgate, to participate in policy and decision-making processes of the establishment where they are employed insofar as said processes will directly affect their rights, benefits and welfare. For this purpose, workers and employers may form labor-management councils: Provided, That the representatives of the workers in such labor-management councils shall be elected by at least the majority of all employees in said establishment. (As amended by Section 22, Republic Act No. 6715, March 21, 1989) Art. 256. Representation issue in organized establishments. In organized establishments, when a verified petition questioning the majority status of the incumbent bargaining agent is filed before the Department of Labor and Employment within the sixty-day period before the expiration of the collective bargaining agreement, the Med-Arbiter shall automatically order an election by secret ballot when the verified petition is supported by the written consent of at least twenty-five percent (25%) of all the employees in the bargaining unit to ascertain the will of the employees in the appropriate bargaining unit. To have a valid election, at least a majority of all eligible voters in the unit must have cast their votes. The labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit. When an election which provides for three or more choices results in no choice receiving a majority of the valid votes cast, a run-off election shall be conducted between the labor unions receiving the two highest number of votes: Provided, that the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast.

At the expiration of the freedom period, the employer shall continue to recognize the majority status of the incumbent bargaining agent where no petition for certification election is filed. (As amended by Section 23, Republic Act No. 6715, March 21, 1989)

150. BELYCA CORPORATION V CALLEJA

According to Rothenberg, a proper bargaining unit maybe said to be a group of employees of a given employer, comprised of all or less than all of the entire body of employees, which the collective interests of all the employees, consistent with equity to the employer, indicate to be best suited to serve reciprocal rights and duties of the parties under the collective bargaining provisions of the law.

Factors considered in determining proper bargaining unit:

will of employees (Globe Doctrine);

affinity and unity of employee's interest, such as substantial similarity of work and duties or similarity of compensation and working conditions;

prior collective bargaining history; and

employment status, such as temporary, seasonal and probationary employees".

2. DETERMINATION OF APPROPRIATE BARGAINING UNIT

A. Factors – Unit Determination

151. UP V FERRER-CALLEJA (211 SCRA 451) [IN GENERAL – STANDARD TEST]

The test of the grouping is community of mutuality of interests because the basic test of an asserted bargaining unit's acceptability is whether or not it is fundamentally the combination which will best assure to all employees the exercise of their collective bargaining rights.

The dichotomy of interests, the dissimilarity in the nature of the work and duties as well as in the compensation and working conditions of the academic and non-academic personnel dictate the separation of these two categories of employees for purposes of collective bargaining.

152. SAN MIGUEL CORP V LAGUESMA (236 SCRA 595) [HISTORY]

The collective bargaining history of a company is not decisive of what should comprise the collective bargaining unit. 153. BENGUET CONSOLIDATED AND BALATOC MINING CO V BOBOK LUMBERJACK

ASSOCN (103 PHIL 1150) [GEOGRAPHY]

Prime element in determining whether a group of employees constitute a proper bargaining unit is whether it will, without inequity to the employer, best serve all the employees in the exercise of their bargaining rights.

Separation between camps and the different kinds of work in each all militate in favor of the present system since the problem and interest of the worker are peculiar in each camp or department.

154. PHIL DIAMOND HOTEL AND RESORT V MANILA DIAMOND HOTEL EES UNION

(494 SCRA 195) [SIZE –COMPOSITION] The labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive representative of the employees (both the members and non-members of the union) in such unit for the purpose of collective bargaining. However, an individual employee or group of employees shall have the right at any time to present grievances to their employer.

3. CORPORATE ENTITIES

155. STA. LUCIA V SEC DOLE (596 SCRA 92) Employees in two corporations cannot be treated as a single bargaining unit even if the businesses of the two corporations are related.

156. DIATOGON LABOR FEDERATION V OPLE (101 SCRA 534) The fact that their businesses are related and that the 236 employees of Georgia Pacific International Corporation were originally employees of Lianga Bay Logging Co., Inc. is not a justification for disregarding their separate personalities.

157. INDOPHIL TEXTILE MILLS WORKERS UNION V CALICA (205 SCRA 697)

The fact that the businesses of private respondent and Acrylic are related, that some of the employees of the private respondent are the same persons manning and providing for auxilliary services to the units of Acrylic, and that the physical plants, offices and facilities are situated in the same compound, it is our considered opinion that these facts are not sufficient to justify the piercing of the corporate veil of Acrylic.

The doctrine of piercing the veil of corporate fiction applies when the corporate fiction is used to defeat public convenience, justify wrong, protect fraud, or defend crime, or when it is made as a shield to confuse the legitimate issues, or where a corporation is the mere alter ego or business conduit of a person, or where the corporation is so organized and controlled and its affairs are so conducted as to make it merely an instrumentality, agency, conduit or adjunct of another corporation.

158. PHIL. SCOUTS VETERANS SECURITY AND INVESTIGATING AGENCY V TORRES

(244 SCRA 682)



The doctrine of piercing the corporate veil applies in this case as the three agencies in the case at bar failed to rebut the fact that they are (1) managed through the Utilities Management Corporation with all of their employees drawing their salaries and wages from said entity; (2) that the agencies have common and interlocking incorporators and officers; (3) that the PSVSIA, GVM and ASDA employees have a single Mutual Benefit System and followed a single system of compulsory retirement; (4) that the security guards of one agency could easily transfer from one agency to another and then back again by simply filling-up a common pro forma slip called "Request for Transfer"; (5) always hold joint yearly ceremonies such as the "PGA Annual Awards Ceremony"; (6) In emergencies, all PSVSIA Detachment Commanders were instructed to get in touch with the officers not only of PSVSIA but also of GVM and ASDA.

159. SAN MIGUEL EES UNION V CONFESSOR (262 SCRA 81)

In determining an appropriate bargaining unit, the test of grouping is mutuality or commonality of interests. The employees sought to be represented by the collective bargaining agent must have substantial mutual interests in terms of employment and working conditions as evinced by the type of work they performed.

Considering the spin-offs, the companies would consequently have their respective and distinctive concerns in terms of the nature of work, wages, hours of work and other conditions of employment. Interests of employees in the different companies perforce differ.

160. COMPLEX ELECTRONICS V NLRC (310 SCRA 403)

The mere fact that one or more corporations are owned or controlled by the same or single stockholder is not a sufficient ground for disregarding separate corporate personalities.

A “runaway shop” is defined as an industrial plant moved by its owners from one location to another to escape union labor regulations or state laws, but the term is also used to describe a plant removed to a new location in order to discriminate against employees at the old plant because of their union activities. It is one wherein the employer moves its business to another location or it temporarily closes its business for anti-union purposes. A “runaway shop” in this sense, is a relocation motivated by anti-union animus rather than for business reasons.

4. UNIT SEVERANCE AND GLOBE DOCTRINE – INDSUTRIAL/CRAFT UNIONS

161. KAPISANAN NG MANGGAGAWA SA MANILA RAILROAD CO V YARD CREW

UNION RAILROAD ENG’G DEPT UNION (109 PHIL 113) Because of the modern complexity of the relation between both employer and union structure, it becomes difficult to determine from the evidence alone which of the several claimant groups forms a proper bargaining unit. It becomes necessary to give consideration to the express will or desire of the employees - a practice designated as the "Globe doctrine," which sanctions the holding of a series of elections, not for the purpose of allowing the group receiving an over all majority of votes to represent all employees, but for the purpose of permitting the employees in each of the several categories to select the group which each chooses as a bargaining unit.

162. MECHANICAL DEPT LABOR UNION V CIR (24 SCRA 925)

Considering the differences in functions, required skills, community of interest and working conditions in Rolling Stones (Caloocan Shop) and those of the other units, the Globe Doctrine properly applies

In view of its findings and the history of union representation in the railway company, indicating that bargaining units had been formed through separation of new units from existing ones whenever plebiscites had shown the workers’ desires to have their own representatives, and relying on the “globe doctrine” the employees in the Caloocan shop should be given a chance to vote on whether their group should be separated from that represented by the mechanical department labor union, and ordered a plebiscite held for that purpose.

5. EFFECT PRIOR AGREEMENT

163. GENERAL RUBBER AND FOOTWEAR CORP V BUREAU OF LABOR RELATIONS

(155 SCRA 283) Previous agreements preventing the monthly paid employees from joining the rank and file union or from forming their own union cannot bind subsequent unions from forming their bargaining units because it is a curtailment of their right to organize. 164. DE LA SALLE UNIVERSITY V DE LA SALLE UNIVERSITY EES ASSOC (330 SCRA

363) Previous agreements do not bar any renegotiation for any future CBA. During the freedom period, the parties may not only renew the existing CBA but may also propose and discuss modifications or amendments thereto.

Changes - Composition

165. SAN MIGUEL CORP V SAN MIGUEL ETC (467 SCRA 107)

The allegation that the bargaining unit that respondent sought to represent is no longer the same because of the dynamic nature of petitioner’s business, a lot of changes having occurred in the work environment, and that four of respondent’s officers are no longer connected with petitioner have no effect on the Court’s ruling that a certification election should be immediately conducted with respondent as one of the available choices.

If there are matters that have arisen since the filing of the petition that serve to delay or cancel the election, these can be threshed out during the pre-election conferences.

2. EMPLOYER CERTIFICATION – EMPLOYER VOLUNTARY

166. SAMAHANG MANGGAGAWA SA PERMEX V. SECRETARY OF LABOR, 286 SCRA

692 (98) New union, if there is an existing union, could not be the exclusive bargaining representative by virtue of employer recognition. If a union asks the employer to voluntarily recognize it, it in effect asks the employer to certify it as its bargaining representative of the employees - a certification which the employer has no authority to give for it is the employees' prerogative, not the employer's to determine whether they want a union to represent them. By EO 111, direct certification has been discontinued as the method for selecting the exclusive bargaining agent.

3. EFFECT ONE UNION ONLY

167. GEORGE AND PETER LINES, INC. V. ASSOCIATED LABOR UNION, 134 SCRA

82 (85) The holding of a certification election is a statutory policy that should not be circumvented. The fact that there are no competing Unions should not affect the freedom of choice (EEs can always choose ‘No Union’).

4. PURPOSE



168. NATIONAL UNION OF WORKERS IN HOTELS, RESTAURANTS AND ALLIED

INDUSTRIES- MANILA PAVILION HOTEL CHAPTER V. SOLE, 594 SCRA 787

(09)

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

A certification election is the process of determining the sole and exclusive bargaining agent of the employees in an appropriate bargaining unit for purposes of collective bargaining. The significance of an employee’s right to vote in a certification election cannot thus be overemphasized, for he has considerable interest in the determination of who shall represent him in negotiating the terms and conditions of his employment.

5. RELIGION/PAST NON-PARTICIPATION

169. REYES V. TRAJANO, 209 SCRA 484 (92) The right not to join, affiliate with or assist any union and to disaffiliate or resign from a labor organization is subsumed in the right to join affiliate with or assist any union. The said right includes the right to refuse and refrain from exercising such right. Just as anyone cannot be denied the exercise of a right granted by law, neither can they be compelled to exercise such a conferred right. All bona fide employees possess such right. The fact that they did not participate in previous certification elections nor the fact that they are not members of any union does not deprive them of such right. 3. CERTIFICATION ELECTION – PROCESS

A. T UNION AS INITIATING PARTY

170. SAN MIGUEL CORPORATION, ETC. V. SAN MIGUEL, ETC. 467 SCRA 107 (05) The Labor Code defines a labor organization as any union or association of employees which exists in whole or in part for the purpose of collective bargaining or of dealing with employers concerning terms and conditions of employment, and a "legitimate labor organization" as any labor organization duly registered with the DOLE, including any branch or local thereof.

Only legitimate labor

organizations may file a petition for certification election. The issuance of the certificate of registration by the Bureau or Regional Office is not the operative act that vests legal personality upon a local/chapter under Department Order No. 9. Such legal personality is acquired from the filing of the complete documentary requirements enumerated in Section 1, Rule VI.

171. LOPEZ SUGAR CORPORATION V. SECRETARY OF LABOR AND EMPLOYMENT, 247 SCRA 1 (95)

While Article 257 directs the automatic conduct of a CE in an unorganized establishment, it also requires that the PCE must be filed

by an LLO. Article 212(h) defines a legitimate labor organization as 'any labor organization duly registered with the DOLE and includes any branch or local thereof.' The law did not reduce the Med-Arbiter to an automaton which can instantly be set to impulse by the mere filing of a PCE. He is still tasked to satisfy himself that all the conditions of the law are met, and among the legal requirements is that the petitioning union must be a legitimate labor organization in good standing. Being merely an agent for the local organization, the federation's bona fide status alone would not suffice. The local chapter, as its principal, should also be a legitimate labor organization in good standing.

172. DUNLOP V. SECRETARY OF LABOR, 300 SCRA 120 (98) Under Art. 245, a labor organization composed of both rank-and-file and supervisory employees is no labor organization at all. It cannot, for any guise or purpose, be a legitimate labor organization. Not being one, an organization which carries a mixture of rank-and-file and supervisory employees cannot possess any of the rights of a legitimate labor organization, including the right to file a petition for certification election for the purpose of collective bargaining.

173. SAMAHANG V. DOLE, 290 SCRA 680 (98) Petitioner Union is an independently registered labor union. As a legitimate labor organization, its right to file a petition for certification election cannot be questioned. Its failure to prove its affiliation with NAFLU-KMU will, at most, result in an ineffective affiliation. Despite affiliation, the local union remains the basic unit free to serve the interests of its members independently of the federation.

1. ORGANIZED ESTABLISHMENT

a. Definition

174. CALIFORNIA MANUFACTURING CORPORATION V. LAGUESMA, 209 SCRA 606

(92) Union filed PCE among supervisory EEs, ER opposed, saying that the petition does not have 25% support from bargaining unit. Union replied, claiming that under the law, when there is no existing unit yet in a particular bargaining unit at the time a PCE is filed, the 25% rule on the signatories does not apply. Issue: WON CE should be held without showing of 25% support. Held: Yes. Article 257 of the Labor Code is applicable to unorganized labor organizations and not to establishments where there exists a certified bargaining agent which had previously entered into a collective bargaining agreement with the management. Otherwise stated, the establishment concerned must have no certified bargaining agent. The supervisors of ER in the case at bar which constitute a bargaining unit separate and distinct from that of the rank-and-file, have no such agent. ER's insistence on the 25% subscription requirement is clearly immaterial. The same has been expressly deleted by Section 24 of Republic Act No. 6715 and is presently prescribed only in organized establishments, that is, those with existing bargaining agents. B. FREEDOM PERIOD

175. ATLANTIC GULF AND PACIFIC CO. MANILA, INC. V. LAGUESMA, 212 SCRA

281 (92) ER has adopted the practice of hiring project EEs when existing fabrication capacity cannot absorb increases in job orders for steel structures and other heavy construction works. ER executed a CBA with the URFA, which is the sole and exclusive bargaining agent of all the regular rank-and-file employees of the petitioner. LAKAS-NFL filed



a PCE and was granted. ER appealed, claiming that the project employees sought to be represented by LAKAS-NFL have been regularized and are deemed included in the existing CBA with URFA. Issue: WON PCE should be granted. Held: No. The existence of a duly registered CBA between ER and URFA, which is the sole and exclusive bargaining representative of all the regular rank-and-file employees of the ER, bars any other labor organization from filing a petition for certification election except within the 60-day period prior to the expiration of the Collective Bargaining Agreement. C. WHEN APPLIED

176. ASSOCIATED LABOR UNION V. CALLEJA (1989) We have previously held that the mechanics of collective bargaining are set in motion only when the following jurisdictional preconditions are present, namely, (1) possession of the status of majority representation by the employees' representative in accordance with any of the means of selection and/or designation provided for by the Labor Code; (2) proof of majority representation; and (3) a demand to bargain under Article 251, paragraph (a), of the New Labor Code. It bears mention that even in cases where it was the then Minister of Labor himself who directly certified the union as the bargaining representative, this Court voided such certification where there was a failure to properly determine with legal certainty whether the union enjoyed a majority representation. In such a case, the holding of a certification election at a proper time would not necessarily be a mere formality as there was a compelling reason not to directly and unilaterally certify a union.

177. GENERAL MILLING CORPORATION V. COURT OF APPEALS (2004) ART. 253-A. Terms of a collective bargaining agreement. – Any Collective Bargaining Agreement that the parties may enter into shall, insofar as the representation aspect is concerned, be for a term of five (5) years. No petition questioning the majority status of the incumbent bargaining agent shall be entertained and no certification election shall be conducted by the Department of Labor and Employment outside of the sixty-day period immediately before the date of expiry of such five year term of the Collective Bargaining Agreement. All other provisions of the Collective Bargaining Agreement shall be renegotiated not later than three (3) years after its execution.... The law mandates that the representation provision of a CBA should last for five years. The relation between labor and management should be undisturbed until the last 60 days of the fifth year. D. FORM OF PETITION – SIGNATURE VERIFICATION AND VERIFICATION OF

PLEADINGS

178. NATIONAL MINES AND ALLIED WORKERS UNION V. SECRETARY OF LABOR

(1993)

Verification of a pleading is a formal, not jurisdictional requisite. Even if verification is lacking and the pleading is formally defective, the courts may dispense with the requirement in the interest of justice and order of correction of the pleading accordingly. Generally, technical and rigid rules of procedure are not binding in labor cases; and this rule is specifically applied in certification election proceedings, which are non-litigious but merely investigative and non-adversarial in character.

The fact that the list of signatures is undated does not necessarily mean that the signatures were obtained prior to the 60-day period before the expiration of the existing collective bargaining

agreement. What is important is that the petition for certification election must be filed during the freedom period and that the 25% requirement of supporting signatures be met upon the filing thereof.

179. TODAY’S KNITTING V. NORIEL (1977)

What is required is that the petition for certification election should have in its favor "the written consent of at least 30% of all the employees in the bargaining unit”. The duty then cast on the Detector of Labor Relations is to ascertain whether there has been such a compliance. There is no doubt in this case there was evidence that more than a total of two-hundred signatures were obtained by respondent Union in seeking such a certification election. The Director having himself that the codal requisite had been met, he had no choice but to order such certification. There is no basis for the contention that a duty is cast on the Director to allow a rival labor organization to verify the authenticity of such signatures. At any rate, if there is any doubt as to the required number having been met, what better way is there than the holding of a certification election to ascertain which union really commands the allegiance of the rank-and-file employees. E. VENUE

180. CRUZ VALLE INC. V. LAGUESMA (1994)

Section 1, Rule V, Book V of the Omnibus Rules Implementing the Labor Code: Where to file. A petition for certification election shall be filed with the Regional Office which has jurisdiction over the principal office of the Employer. The petition shall be in writing and under oath.

The word "jurisdiction" as used in said provision refers to the venue where the petition for certification must be filed. Section 1, Rule V, Book V of the Omnibus Rules Implementing the Labor Code refers only to cases where the place of work of the employees and the place of the principal office of the employer are within the same territorial jurisdiction of the Regional Office where the petition for certification election is filed. The said provision does not apply to the filing of petitions for certification election where the place of work of the employees and the place of principal office of the employer are located within the territorial jurisdictions of different regional offices.

F. SUBSTANTIAL SUPPORT

1. RATIONALE AND COMPUTATION

181. PHILIPPINE ASSOCIATION OF FREE LABOR UNIONS V. FERRER-CALLEJA (1989) The reason behind the 20% requirement is to ensure that the petitioning union has a substantial interest in the representation proceedings and that a considerable number of workers desire their representation by the said petitioning union for collective bargaining purposes. Hence, the mere fact that 20% of the workers in the bargaining unit signify their support to the petition by their written consent, it becomes mandatory on the part of the Med-Arbiter to order the holding of a certification election in an unorganized establishment. The 20% requirement, thereof, is peculiar to petitions for certification election. Nowhere in ARTS. 256 and 257 does it appear that a motion for intervention in a certification election must be accompanied by a similar written consent. Not even in the Implementing Rules of the Labor Code.

182. ST. JAMES SCHOOL V. SAMAHANG MANGGAGAWA NG ST. JAMES SCHOOL

(2005)



All employees who are members of the appropriate bargaining unit sought to be represented by the petitioner at the time of the certification or consent election shall be qualified to vote. A dismissed employee whose dismissal is being contested in a pending case shall be allowed to vote in the election. In case of disagreement over the voters’ list or over the eligibility of voters, all contested voters shall be allowed to vote. However, their votes shall be segregated and sealed in individual envelopes in accordance with Section 9 of these Rules. (Section 2, Rule XII, Book V of the Omnibus Rules)

2. COMPLIANCE

183. CALIFORNIA MANUFACTURING CORPORATION V. LAGUESMA (1992) The 25% subscription is presently prescribed only in organized establishments, that is, those with existing bargaining agents. Compliance with the said requirement need not even be established with absolute certainty. The Court has consistently ruled that "even conceding that the statutory requirement of 30% (now 25%) of the labor force asking for a certification election had not been strictly compiled with, the Director (now the Med-Arbiter) is still empowered to order that it be held precisely for the purpose of ascertaining which of the contending labor organizations shall be the exclusive collective bargaining agent. The requirement then is relevant only when it becomes mandatory to conduct a certification election. In all other instances, the discretion, according to the rulings of this Tribunal, ought to be ordinarily exercised in favor of a petition for certification.

3. MOTION INTERVENTION

184. PORT WORKERS UNION OF THE PHILIPPINES V. LAGUESMA (1992) It is crystal clear from Arts. 256 and 257 that the requisite written consent of at least 20% of the workers in the bargaining unit applies to petitioners for certification election only and not to motions for intervention. As long as the motion for intervention has been properly and timely filed and the intervention would not cause any injustice to anyone, it should not be denied and this is so even if the eventual purpose of the Motion for Intervention is to participate in the Certification Election. After all, the original applicant had already met the 20% requirement.

4. SUBMISSION

185. ORIENTAL TIN CAN LABOR UNION V. SECRETARY OF LABOR (1998)

Article 253-A of the Labor Code explicitly provides that the aspect of a union’s representation of the rank-and-file employees contained in the CBA shall be for a term of five (5) years and that “(n)o petition questioning the majority status of the incumbent bargaining agent shall be entertained and no certification election shall be conducted by the Department of Labor and Employment outside of the sixty-day period immediately before the date of expiry of such five year term of the Collective Bargaining Agreement.” Accordingly, Section 3, Rule V, Book V of the Omnibus Rules Implementing the Labor Code provides that “(i)f a collective bargaining agreement has been duly registered in accordance with Article 231 of the Code, a petition for certification election or a motion for intervention can only be entertained within sixty (60) days prior to the expiry date of such agreement.”

The filing of a petition for certification election during the 60-day freedom period gives rise to a representation case that must be resolved even though a new CBA has been entered into within that period. Even if an agreement has been prematurely signed by the

union and the company during the freedom period, the same does not affect the petition for certification election filed by another union. This is clearly provided for in the aforequoted Section 4, Rule V, Book V of the Omnibus Rules Implementing the Labor Code.

186. PORT WORKERS UNION OF THE PHILIPPINES V. LAGUESMA (1992)

The certification election is the most democratic and expeditious method by which the laborers can freely determine the union that shall act as their representative in their dealings with the establishment where they are working. The holding of a certification election is a statutory policy that should not be circumvented. In line with the policy, the administrative rule requiring the simultaneous submission of the 25% consent signatures upon the filing of petition for certification election should not be strictly applied to frustrate the determination of the legitimate representative of the workers. Significantly, the requirement in the rule is not found in Article 256, the law it seeks to implement. This is all the more reason why the regulation should at best be given only a directory effect. Accordingly, the mere filing of a petition for certification election within the freedom period is sufficient basis for the issuance of an order for the holding of a certification election, 8 subject to the submission of the consent signatures within a reasonable period from such filing.

5. EFFECT WITHDRAWAL

187. TAGAYTAY HIGHLANDS INTERNATIONAL GOLF CLUB V. TAGAYTAY HIGHLANDS

EMPLOYEES UNION (2003) Regarding the alleged withdrawal of union members from participating in the certification election, this Court’s following ruling is instructive: “’*T+he best forum for determining whether there were indeed retractions from some of the laborers is in the certification election itself wherein the workers can freely express their choice in a secret ballot.’ Suffice it to say that the will of the rank-and-file employees should in every possible instance be determined by secret ballot rather than by administrative or quasi-judicial inquiry. Such representation and certification election cases are not to be taken as contentious litigations for suits but as mere investigations of a non-adversary, fact-finding character as to which of the competing unions represents the genuine choice of the workers to be their sole and exclusive collective bargaining representative with their employer.”

6. DISCRETION RULE APPLICATION

188. AIRTIME SPECIALISTS, INC. VS. HON. DIRECTOR OF BUREAU OF LABOR

RELATIONS PURA FERRER-CALLEJA (1990) Compliance with the 30% requirement (now 20%) makes it mandatory upon the BLR to order the holding of a certification election in order to determine the exclusive-bargaining agent of the employees. It means that the Bureau is left without any discretion but to order the holding of certification election. BUT where the petition is supported by less than 30% (now 20%) the BLR has discretion whether or not to order the holding of certification election depending on the circumstances of the case, of which it has intimate knowledge.

189. WESTERN AGUSAN WORKERS UNION LOCAL 101 OF THE UNITED LUMBER

AND GENERAL WORKERS OF THE PHILIPPINES VS. TRAJANO (1991) The policy of the Labor Code is indisputably partial to the holding of a certification election so as to arrive in a manner definitive and certain concerning the choice of the labor organization to represent the workers in a collective bargaining unit. Conformably to said basic concept, the Court recognized that the Bureau of Labor Relations in the exercise of sound discretion, may order a certification election



notwithstanding the failure to meet the 30% requirement. In this case, serious doubts exist whether WAWU-ULGWP-Local 101 still represents the majority of the rank-and-file employees at the employer corporations. The best forum for determining whether there were indeed retractions from some of the laborers is the certification election itself wherein the workers can freely exercise their choice in a secret ballot.

2. UNORGANIZED ESTABLISHMENT

Art. 212. Definitions. (h) “Legitimate labor organization” means any labor organization duly registered with the Department of Labor and Employment, and includes any branch or local thereof. Art. 257. Petitions in unorganized establishments. – In any establishment where there is no certified bargaining agent, a certification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by a legitimate labor organization. (As amended by Section 24, Republic Act No. 6715, March 21, 1989) Art. 242. Rights of legitimate labor organizations. – A legitimate labor organization shall have the right: (b) To be certified as the exclusive representative of all the employees in an appropriate bargaining unit for purposes of collective bargaining;

190. STA. LUCIA EAST COMMERCIAL CORP. (SLECC) VS. SECRETARY OF DOLE

The employer may voluntarily recognize the representation status of a union only in unorganized establishments. In this case, CLUP-SLECC and its Affiliates Workers Union constituted a registered labor organization at the time that SLECC voluntarily recognized SMSLEC. Thus, subsequent negotiations and registration of a CBA executed by SLECC with SMSLEC are void and could not bar CLUP-SLECCWA’s petition for certification election.

a. Definition

191. PHILIPPINE TELEGRAPH AND TELEPHONE CORP. VS. LAGUESMA (1993) The supervisory employees of PT&T did not yet have a certified bargaining agent to represent them at the time the Union, which is legitimate labor organization duly registered with the DOLE, filed the petition for certification election. Since no certified bargaining agent represented the supervisory employees, PT&T may be deemed an unorganized establishment within the purview of Art. 257 of the Labor Code. Consequently, the Med-Arbiter correctly granted the petition for certification election among the supervisory employee of petitioner PT&T because Art. 257 provides that said election should be automatically conducted upon filing of the petition.

192. CALIFORNIA MANUFACTURING CORP. VS. LAGUESMA (1992) Article 257 of the Labor code is applicable to unorganized labor organizations and not to establishments where there exists a certified bargaining agent which had previously entered into a CBA with the management. Otherwise stated, the establishment concerned must have no certified bargaining agent for the employees concerned.

193. CELINE MARKETING CORP. VS. LAGUESMA (1992) Even if the petition for certification election does not carry the authorization of a majority of the rank-and file employees, their consent is not necessary when the bargaining unit that the union seeks to represent, is still unorganized. The petition for certification election may be filed by any union, not by the employees. Thus, Article 257 of the Labor Code provides that in any establishment where there is no certified bargaining agent, a certification election

shall automatically be conducted by the Med-Arbiter upon the filing of a petition by a legitimate labor organization.

b. Mandatory Election

194. SUGBUANON RURAL BANK, INC. VS. LAGUESMA (2000) One of the rights of a legitimate labor organization under Article 242(b) of the Labor Code is the right to be certified as the exclusive representative of all employees in an appropriate bargaining unit for purposes of collective bargaining. Article 257 of the Labor Code mandates that a certification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by a legitimate labor organization. Nothing is said therein that prohibits such automatic conduct of the certification election if the management appeals on the issue of the validity of the union’s registration. B. THE EMPLOYER AS INITIATING PARTY

Art. 212. Definitions. – (e) “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. Art. 258. When an employer may file petition. – When requested to bargain collectively, an employer may petition the Bureau for an election. If there is no existing certified collective bargaining agreement in the unit, the Bureau shall, after hearing, order a certification election.

All certification cases shall be decided within twenty (20) working days.

The Bureau shall conduct a certification election within twenty (20) days in accordance with the rules and regulations prescribed by the Secretary of Labor. Art. 258-A. Employer as Bystander. – In all cases, whether the petition for certification election is filed by an employer or a legitimate labor organization, the employer shall not be considered a party thereto with a concomitant right to oppose a petition for certification election. The employer’s participation in such proceedings shall be limited to: (1) being notified or informed of petitions of such nature; and (2) submitting the list of employees during the pre-election conference should the Med-Arbiter act favorably on the petition.

195. STA. LUCIA EAST CORP. VS. SECRETARY OF DOLE (2009) In petitions for certification election, the employer is a mere bystander and cannot oppose the petition or appeal the Med-Arbiter’s decision. The exception to this rule happens only when the employer is requested to bargain collectively.

1

196. REPUBLIC VS. KAWASHIMA TEXTILE, ETC. (2008)

R. A. No. 9481 inserted Article 238-A to the Labor Code, which provides that “a petition for cancellation of union registration shall not suspend the proceedings for certification election nor shall it prevent the filing of a petition for certification election. In case of cancellation, nothing herein shall restrict the right of the union to seek just and equitable remedies in the appropriate courts.” Furthermore, under Section 12 of R.A. No. 9481, employers have no personality to interfere with or thwart a petition for certification election filed by a legitimate labor organization. Article 258-A, a new provision, treats the employer merely as a bystander. (In this case, however, the petition for certification election was filed years before June 14, 2007, the date of effectivity of R.A. No. 9481.)

1 GOOD LAW: Article 258-A has trumped this exception. Article 258-A, inserted by Section 12 of R.A. No. 9481 into the Labor Code, states in express terms that the employer has no right to oppose a petition for certification election “in all cases, whether the petition for certification is filed by an employer or a legitimate labor organization.” The provision was not applied in this case because the controversy arose about six years before R.A No. 9481 lapsed into law.



197. NOTRE DAME VS. LAGUESMA (2004)

Unless it filed a petition for a certification election pursuant to Article 258 of the Labor Code, the employer has no standing to question the election, which is the sole concern of the workers. The Labor Code states that any party to an election may appeal the decision of the med-arbiter. Petitioner-employer was not such a party to the proceedings, but a stranger which had no right to interfere therein.

198. SMC QUARRY WORKERS UNION VS. TITAN MEGABAGS INDUSTRIAL CORP. (2004)

In certification elections, the employer is a bystander, it has no right or material interest to assail the certification election. Thus, when a petition for certification election is filed by a legitimate labor organization, it is good policy of the employer not to have any participation or partisan interest in the choice of the bargaining representative. While employers may rightfully be notified or informed of petitions of such nature, they should not, however, be considered parties thereto with an inalienable right to oppose it.

4. NATURE OF PROCEEDING

A. Nature

199. YOUNG MEN LABOR UNION STEVEDORES VS. CIR (1965) The object of the proceedings is not the decision of any alleged commission of wrong nor asserted deprivation of rights but is merely the determination of proper bargaining units and the ascertainment of the will and choice of the employees. The determination of the proceedings does not entail the entry of remedial orders or redress of rights, but culmination solely in an official designation of bargaining units and an affirmation of the employees’ expressed choice of bargaining agent. Considering that certification proceedings are investigatory in nature, and that the conduct of such proceedings should be expedited as much as possible, the Court should not interfere with the discretion of the CIR (now BLR) in connection with such proceedings, at least in the absence of clear and patent abuse.

B. Certifical election and run-off – process and procedure

Art. 256. Representation issue in organized establishments. – In organized establishments, when a verified petition questioning the majority status of the incumbent bargaining agent is filed before the Department of Labor and Employment within the sixty-day period before the expiration of the collective bargaining agreement, the Med-Arbiter shall automatically order an election by secret ballot when the verified petition is supported by the written consent of at least twenty-five percent (25%) of all the employees in the bargaining unit to ascertain the will of the employees in the appropriate bargaining unit. To have a valid election, at least a majority of all eligible voters in the unit must have cast their votes. The labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit. When an election which provides for three or more choices results in no choice receiving a majority of the valid votes cast, a run-off election shall be conducted between the labor unions receiving the two highest number of votes: Provided, that the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast.

At the expiration of the freedom period, the employer shall continue to recognize the majority status of the incumbent bargaining agent where no petition for certification election is filed. (As amended by Section 23, Republic Act No. 6715, March 21, 1989)

Art. 257. Petitions in unorganized establishments. – In any establishment where there is no certified bargaining agent, a certification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by a legitimate labor organization. (As amended by Section 24, Republic Act No. 6715, March 21, 1989)

Art. 258. When an employer may file petition. – When requested to bargain collectively, an employer may petition the Bureau for an election. If there is no existing certified collective bargaining agreement in the unit, the Bureau shall, after hearing, order a certification election.

All certification cases shall be decided within twenty (20) working days.

The Bureau shall conduct a certification election within twenty (20) days in accordance with the rules and regulations prescribed by the Secretary of Labor.

Effect Private Agreement

200. ILAW AT BUKLOD NG MANGGAGAWA V DIRECTOR (1979) The Labor Code never intended that the Director of Labor Relations should abdicate, delegate and relinquish his arbitrational prerogatives in favor of a private person or entity or to a federation of trade unions. Such a surrender of official functions is an anomalous, deplorable and censurable renunciation of the Director's adjudicatory jurisdiction in representation cases. (Any agreement to refer a dispute to another body for settlement is not allowed)

201. PLUM FEDERATION OF INDUSTRIAL AND AGRARIAN WORKERS V NORIEL

(1982) Certification election (vis-à-vis the referring of cases to a different body to settle disputes as in this case) is the fairest and most effective way of determining which labor organization can truly represent the working force. It is a fundamental postulate that the win of the majority if given expression in an honest election with freedom on the part of the voters to make their choice, is controlling. Protection to labor and freedom of peaceful assembly and association are guaranteed by the Constitution.

a. Election – Mechanics of process

RULE VI Election

SECTION 1. Conduct of an election. — The Regional Division shall cause the necessary posting of notices at least five (5) working days before the actual date of election in two most conspicuous places in the company premises. The notices shall contain the date of election, names of the contending parties, the description of the bargaining unit and the list of eligible voters. SECTION 2. Election conducted during regular business day. — The election shall be set during the regular business day of the company unless otherwise agreed upon by the parties. SECTION 3. Representation officer may rule on any on-the-spot questions. — The Representation Officer may rule on any on-the-spot question arising from the conduct of the election. The interested party may, however, file a protest with the Representation Officer before the close of the proceedings. Protests not so raised are deemed waived. Such protests shall be contained in the minutes of the proceedings. SECTION 4. Protest to be decided in twenty (20) working days. — When the protest is formalized before the Med-Arbiter within five (5) days after the close of the election proceedings, the Med-Arbiter shall decide the same within twenty (20) working days from the date of its formalization. If not formalized within the prescribed period, the protest shall be deemed dropped. The decision may be appealed to the Bureau in the same manner and on the same grounds as provided under Rule V. SECTION 5. Motion to postpone does not stay election. — The filing of a motion to postpone shall not stay the holding of the election. SECTION 6. Duties of Representation Officer. — Before the actual voting commences, the Representation Officer shall inspect the polling place, the ballot boxes and the polling booths to insure secrecy of balloting. The parties shall be given opportunity to witness the inspection proceedings. After the examination of the ballot box, the Representation Officer shall lock it with three keys one of which he shall keep and the rest forthwith given one each to the employer's representative and the representative of the labor organization. If more than one union is involved, the holder of the third key



shall be determined by drawing of lots. The key shall remain in the possession of the Representation Officer and the parties during the proceedings and thereafter until all the controversies concerning the conduct of the election shall have been definitely resolved. SECTION 7. Preparation of ballots. — Ballots shall be prepared in Filipino and English along with a translation in the local dialect, if any, for the guidance of worker-voters. SECTION 8. Marking and canvassing of votes. — (a) The voter must write a cross (x) or a check (/) in the square opposite the union of his choice. If only one union is involved, the voter shall make his cross or check in the square indicating "Yes" or "No". (b) If a ballot is torn, marked, or defaced, in such a manner as to create doubt or confusion or identify the voter, it shall be considered spoiled. If the voter inadvertently spoils a ballot, he shall return it to the Representation Officer who shall destroy it and deliver him another ballot. (c) As soon as the polls close, the votes cast shall be counted and tabulated by the Representation Officer in the presence of the representatives of the parties. Upon completion of the canvassing, the Representation Officer shall give each representative a certification of the result of the election and minutes of the concluded election. (d) The ballots, tally sheets, and certification of the results, together with the minutes of the election, shall be sealed in an envelope and signed outside by the Representation Officer and by representatives of the contending parties. These envelopes shall remain sealed under the custody of the Representation Officer until after the Med-Arbiter has finally certified the winner. (e) The Med-Arbiter, upon receipt of the results of the election and no protest having been filed, shall certify the winner. (f) The union which obtained a majority of the valid votes cast by the eligible voters shall be certified as the sole and exclusive bargaining agent of all the workers in the appropriate unit. However, in order to have a valid election, at least a majority of all eligible voters in the bargaining unit must have cast their votes.

RULE VII Challenges and Run-Offs

SECTION 1. Challenging of votes. — (a) Any vote may be challenged for a valid cause by any observer before the voter has deposited his vote in the ballot box. (b) If a ballot is challenged on valid grounds, the Representation Officer shall segregate it from the unchallenged ballots and seal it in an envelope. The Representation Officer shall indicate on the envelope the name of the challenger and the ground of the challenge. SECTION 2. Run-off election. — When an election which provides for three (3) or more choices results in no choice receiving a majority of the valid votes cast, and no objections or challenges have been presented which if sustained might change the results, the representation officer shall motu proprio conduct a run-off election within five (5) calendar days from the close of the election between the labor unions receiving the two highest number of votes; Provided, that the total number of votes for all contending unions is at least fifty (50%) percent of the number of votes cast. The ballots in the run-off election shall provide for two choices receiving the highest and the second highest number of the votes cast.

b. Posting notice

c. Waiver

202. JISSCOR INDEPENDENT UNION V TORRES (1993)

Grounds of a protest may be filed on the spot or in writing with the representation officer and shall be contained in the minutes of the proceedings. Protests not so raised are deemed waived.

There is no merit in the argument that the non-posting of the notice of the certification election as prescribed misled and confused the workers regarding the mechanics of the election.

JIU is estopped from raising that issue for it signed an agreement with JISSCOR to waive the mandatory 5 days posting of election notices

d. Voting list and voters

203. NATIONAL UNION OF WORKERS IN HOTELS. V SEC DOLE (2009) The period of reckoning in determining who shall be included in the list of eligible voters is, in cases where a timely appeal has been filed from the Order of the Med-Arbiter, the date when the Order of the Secretary of Labor and Employment, whether affirming or denying the appeal, becomes final and executory. X x x The filing of an appeal to the SOLE from the Med-Arbiter’s Order stays its execution, in accordance with Sec. 21, and rationally, the Med-Arbiter cannot direct the employer to furnish him/her with the list of eligible voters pending the resolution of the appeal.

204. ACOJE WORKERS UNION V NATIONAL MINES &ALLIED WORKERS UNION

(1963) The labor unions concerned agreed, not only to the holding of the aforementioned election, but, also, to the use of the Company payroll of March31, 1961, as the basis for determining who are qualified to votes subject to the approval of the lower court. Said labor unions were given an opportunity to make their comments and observations on the list of workers contained in the payroll and to ask or suggest the inclusion or exclusion of names therein or therefrom. Petitioner's representative then stated that it would abide by whatever ruling the court may make on the matter of inclusion and exclusion of voters. The court issued the corresponding order for the holding of the election and made its ruling on the question as to who were qualified to vote, and petitioner did not move for a reconsideration of said ruling, although two (2) other labor unions and the Company did so, and their motions for reconsideration were denied by the Court en banc. Hence, petitioner may no longer contest the accuracy of the aforementioned voters' list.

205. NOTRE DAME V LAGUESMA (2004) Only the employees themselves, being the real parties-in-interest, may question their removal from the voters’ list. This Court would be the last agency to support an attempt to interfere with a purely internal affair of labor. The provisions of the Labor Code relating to the conduct of certification elections were enacted precisely for the protection of the right of the employees to determine their own bargaining representative. Employers are strangers to these proceedings. They are forbidden from influencing or hampering the employees’ rights under the law. They should not in any way affect, much less stay, the holding of a certification election by the mere convenience of filing an appeal with the labor secretary.

206. ST. JAMES SCHOOL V SAMAHANG MANGGAGAWA SA ST. JAMES (2005)

In case of disagreement over the voters’ list or over the eligibility of voters, all contested voters shall be allowed to vote. However, their votes shall be segregated and sealed in individual envelopes in accordance with Section 9 of these Rules. X x x The motor pool, construction and transportation employees of the Tandang Sora campus had 149 qualified voters at the time of the certification election. Hence, the 149 qualified voters should be used to determine the existence of a quorum. Since a majority or 84 out of the 149 qualified voters cast their votes, a quorum existed in the certification election.

e. Voters all employees

Art. 212 (f). "Employee" includes any person in the employ of an employer. The term shall not be limited to the employees of a particular employer, unless the Code so explicitly states. It shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent and regular employment.



Art. 256. Representation issue in organized establishments. In organized establishments, when a verified petition questioning the majority status of the incumbent bargaining agent is filed before the Department of Labor and Employment within the sixty-day period before the expiration of the collective bargaining agreement, the Med-Arbiter shall automatically order an election by secret ballot when the verified petition is supported by the written consent of at least twenty-five percent (25%) of all the employees in the bargaining unit to ascertain the will of the employees in the appropriate bargaining unit. To have a valid election, at least a majority of all eligible voters in the unit must have cast their votes. The labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit. When an election which provides for three or more choices results in no choice receiving a majority of the valid votes cast, a run-off election shall be conducted between the labor unions receiving the two highest number of votes: Provided, that the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast. At the expiration of the freedom period, the employer shall continue to recognize the majority status of the incumbent bargaining agent where no petition for certification election is filed. (As amended by Section 23, Republic Act No. 6715, March 21, 1989)

207. NATIONAL UNION OF WORKERS IN HOTELS. V SEC DOLE (2009) In the present case, records show that the probationary employees, including Gatbonton, were included in the list of employees in the bargaining unit submitted by the Hotel on May 25, 2006 in compliance with the directive of the Med-Arbiter after the appeal and subsequent motion for reconsideration have been denied by the SOLE, rendering the Med-Arbiter’s August 22, 2005 Order final and executor 10 days after the March 22, 2007 Resolution (denying the motion for reconsideration of the January 22 Order denying the appeal), and rightly so. Because, for purposes of self-organization, those employees are, in light of the discussion above, deemed eligible to vote. X x x The true importance of ascertaining the number of valid votes cast is for it to serve as basis for computing the required majority, and not just to determine which union won the elections.

208. YOKOHAMA TIRES PHILIPPINES V YOKOHAMA EMPLOYEES UNION (2007) Even the new rule has explicitly stated that without a final judgment declaring the legality of dismissal, dismissed employees are eligible or qualified voters.

209. AIRTIME SPECIALISTS V DIRECTOR BLR (1989) In a certification election all rank-and-file employees in the appropriate bargaining unit are entitled to vote. Collective bargaining covers all aspects of the employment relation and the resultant CBA negotiated by the certified union binds all employees in the bargaining unit. Hence, all rank-and-file employees, probationary or permanent, have a substantial interest in the selection of the bargaining representative. The Code makes no distinction as to their employment status as basis for eligibility in supporting the petition for certification election. The law refers to “all” the employees in the bargaining unit. All they need to be eligible to support the petition is to belong to the “bargaining unit”

210. BARRERA V CIR (1981) Moreover, is there not in the posture taken by petitioner a contravention of what is expressly set forth in the Industrial Peace Act, which speaks of the labor organizations 'designated or selected for the purpose of collective bargaining by the majority of the employees in an appropriate collective bargaining unit [be the exclusive] representative of all the employees in such unit for the purpose of collective bargaining.' The law clearly contemplates all the employees, not only some of them. As much as possible then, there is

to be no unwarranted reduction in the number of those taking part in a certification election, even under the guise that in the meanwhile, which may take some time, some of those who are employees could possibly lose such status, by virtue of a pending unfair labor practice case."

211. CONFEDERATION OF CITIZENS LABOR UNIONS V NORIEL (1980) For the integrity of the collective bargaining process to be maintained and, thus, manifest steadfast adherence to the concept of industrial democracy, all the workers of a collective bargaining unit should be given the opportunity to participate in a certification election.

212. EASTLAND MANUFACTURING CO. V NORIEL (1982) The plain language of the law certainly is controlling. All employees can participate [in certification election].

213. R. TRANSPORT CO. V LAGUESMA (1993) As held in the case of Philippine Fruits and Vegetables Industries, Inc. v. Torres, 211 SCRA 95 (1992): At any rate, it is now well-settled that employees who have been improperly laid off but who have a present, unabandoned right to or expectation of re-employment, are eligible to vote in certification elections. Thus, and to repeat, if the dismissal is under question, as in the case now at bar whereby a case of illegal dismissal and/or unfair labor practices was filed, the employees concerned could still qualify to vote in the elections. Therefore, the employees of petitioner who participated in the strike, legally remain as such, until either the motion to declare their employment status legally terminated or their complaint for illegal dismissal is resolved by the NLRC. The employer has no right to interfere in the election and is merely regarded as a bystander (Divine Word University of Tacloban v. Secretary of Labor and Employment, 213 SCRA 759 [1992]).

f. Effect non-participation previous election

214. REYES V TRAJANO Failure to take part in previous elections is no bar to the right to participate in future elections. No law, administrative rule or precedent prescribes forfeiture of the right to vote by reason of neglect to exercise the right in past cases.

VOTING DAY

215. ASIAN DESIGN AND MANUFACTURING CORP V CALLEJA (1989) In answer to petition's contention that there being a strike on May 21, 1986, the day the certification election was held, said day cannot be considered a regular business day, the respondent Director ruled: Furthermore, anent complainant's contention that the certification election was conducted not on regular business day, the same is devoid of merit. The records further show that during the pre-election conference the contending parties agreed that the election should be conducted on May 21, 1986 which was, on that time, a determined regular business day of the company. This was in accordance with Section 2, Rule VI Book V, of the IRR of the Labor Code which explicitly provides that “The election shall be set during the regular business day of the company unless otherwise agreed upon by the parties.” The alleged strike and/or picketing of some employees at the company's premises which coincided with the actual conduct of certification election might, perhaps have affected the actual performance of works by some employees, but did not necessarily make said date an irregular business day of the company to go against the aforesaid Rule.



g. Validity

216. NATIONAL UNION V. SECRETARY OF LABOR 594 SCRA 767 (09) It is well-settled that under the so-called "double majority rule," for there to be a valid certification election, majority of the bargaining unit must have voted AND the winning union must have garnered majority of the valid votes cast. Under Art. 256 of the Labor Code, the union obtaining the majority of the valid votes cast by the eligible voters shall be certified as the sole and exclusive bargaining agent of all the workers in the appropriate bargaining unit. This majority is 50% + 1.

217. SAMAHAN NG MANGGAGAWA SA PACIFIC PLASTIC V. LAGUESMA

(MNMPP) 267 SCRA 303 (97)

Art.256 of the Labor Codes provides that in order to have a valid election, at least a majority of all eligible voters in the unit must have cast their votes.

The Court denied the petition holding that the Certification of Election (CE) being questioned is invalid. The CE held shows that 62 of the 98 eligible voters included in the list of employees obtained from the SSS have cast their votes. Hence, the legal requirement for a valid election was met.

G. PROTEST

PERIOD

218. TIMBUNGCO V. CASTRO 183 SCRA 140 (90)

Under the Rules Implementing the Labor Code, protests against elections should be formalized before the Med-Arbiter within 5 days from the close of the election proceedings and must be decided by the latter within 20 working days (Book V, Rule XII referring to Rule XI).

In this case, the objection to the results of the election of officers came only after the lapse of two years after it was held. And in that interval, no informal protest, oral or written, was ever presented against the election. There was tacit acceptance of the regularity of the elections and the results thereof. They must be deemed to have forfeited their right to impugn the results of the election. Also, it does not appear that the dispensing by the membership of the Kapisanan with certain technical requirements or formalities in relation to the election of July 15, 1984 had resulted in the deprivation of any substantial right or prerogative of anyone, or caused the perpetration of a fraud or other serious anomaly, or more importantly, precluded the expression and ascertainment of the popular will in the choice of officers.

219. DHL PHILIPPINES CORPORATION UNITED RANK AND FILE ASSOCIATION-

FEDERATION OF FREE WORKERS V. BUKLOD NG MANGGAGAWA NG DHL

PHILIPPINES CORPORATION 434 SCRA 670 (04)

The petition for nullification of the CE was filed less than a month after conduct of the election.

The late filing of the Petition for a new election can be excused under the peculiar facts of this case, considering that the employees concerned did not sleep on their rights, but promptly acted to protect their prerogatives. Hence, their failure to follow strictly the procedural technicalities regarding the period for filing their protest should not be taken against them. Mere technicalities should not be allowed to prevail over the welfare of the workers. What is essential is that they be accorded an opportunity to determine freely and intelligently which labor organization shall act on their behalf. Having been denied this opportunity by the betrayal committed by petitioner’s officers in the present case, the

employees were prevented from making an intelligent and independent choice.

When the med-arbiter admitted and gave due course to respondent’s Petition for nullification of the election proceedings, the election officer should have deferred issuing the Certification of the results thereof. Section 13 of the Implementing Rules cannot strictly be applied to the present case.

H. APPEAL

Article 259. Appeal from certification election orders. Any party to an election may appeal the order or results of the election as determined by the Med-Arbiter directly to the Secretary of Labor and Employment on the ground that the rules and regulations or parts thereof established by the Secretary of Labor and Employment for the conduct of the election have been violated. Such appeal shall be decided within fifteen (15) calendar days. (As amended by Section 25, Republic Act No. 6715, March 21, 1989)

220. PHILIPPINE FRUITS AND VEGETABLES INDUSTRIES V. TORRES 211 SCRA 95

(92)

Section 4 of Implementing Rules reads: “Where the protest is formalized before the med-arbiter within 5 days after the close of the election proceedings, the med-arbiter shall decide same the within 20 working days from the date of formal action. If not formalized within the prescribed period, the protest shall be deemed dropped. The decision may be appealed to the Bureau in the same manner and on the same grounds as provided under Rule 5.”

PFVI, after filing a manifestation of protest on election day on December 16, 1988, only formalized the same on February 20, 1989, or more than two months after the close of election proceedings. The phrase “close of election proceeding” as used in Sections 3 and 4 of the pertinent Implementing Rules (Rule 6, Book 5) refers to that period from the closing of the polls to the counting and tabulation of the votes as it could not have been the intention of the Implementing Rules to include in the term “close of the election proceedings” the period for the final determination of the challenged votes and the canvassing since it may take a very long period of time. The protest, therefore, was filed outside the reglementary period.

221. SAMAHAN NG MANGGAGAWA SA FILSYSTEMS V. SECRETARY OF LABOR 290

SCRA 680 (98)

Petitioner is an independently registered labor union as evidenced by a Certificate of Registration. As a legitimate labor organization, petitioner’s right to file a petition for certification election on its own is beyond question.Therefore, its failure to prove its affiliation with NAFLU-KMU cannot affect its right to file the petition for CE as an independent union. Despite affiliation, the local union remains the basic unit free to serve the common interest of all its members and pursue its own interests independently of the federation.

The order of the Med-Arbiter dismissing petitioner's petition for certification election was seasonably appealed. The appeal stopped the holding of any certification election. Section 10, Rule V of the Implementing Rules of Book V of the Labor Code is crystal clear and hardly needs any interpretation. Accordingly, there was an unresolved representation case at the time the CBA was entered between FWU and private respondent. Following Section 4, Rule V of the Implementing Rules of Book V of the Labor Code, such CBA cannot and will not prejudice petitioner's pending representation case or render the same moot.



222. NOTRE DAME MEGABAGS INDUSTRIAL CORPORATION V. LAGUESMA 433

SCRA 224 (04)

Unless the employer itself has filed a petition for a certification election pursuant to Article 258 of the Labor Code, an employer has no standing to question such election or to interfere therein. Being the sole concern of the workers, the election must be free from the influence or reach of the company.

Art. 259, LC pertains not just to any of the med-arbiter’s orders, but to the order granting the petition for certification election. Not all the orders issued by a med-arbiter are appealable. Interlocutory orders issued by the med-arbiter prior to the grant or denial of the petition, including orders granting motions for intervention issued after an order calling for a certification election, shall not be appealable. However, any issue arising therefrom may be raised in the appeal on the decision granting or denying the petition.

The intention of the law is to limit the grounds for appeal that may stay the holding of a certification election. This intent is manifested by the issuance of Dept Order No. 40: Under the new rules, an appeal of a med-arbiter’s order to hold a certification election will not stay the holding thereof where the employer company is an unorganized establishment, and where no union has yet been duly recognized or certified as a bargaining representative.

This new rule decreases or limits the appeals that may impede the selection by employees of their bargaining representative. Expediting such selection process advances the primacy of free collective bargaining, in accordance with the State’s policy to promote and emphasize the primacy of free collective bargaining and to ensure the participation of workers in decision and policy-making processes affecting their rights, duties and welfare.

223. SMC QUARRY WORKERS UNION V. TITAN MEGABAGS INDUSTRIAL

CORPORATION 428 SCRA 524 (04)

Med-Arbiter held there was ER-EE relationship so granted petition for CE filed by union. ER appealed, to Secretary who denied appeal. ER went to CA on certiorari.

The remedy of an aggrieved party in a Decision or Resolution of Secretary of DOLE is to timely file a motion for reconsideration as a precondition for any further or subsequent remedy, and then seasonably file a special civil action for certiorari under RULE 65 of the Rules. Without a motion for reconsideration seasonably filed, the resolution becomes final and executory.

Art. 259, LC: any party to a certification election may appeal the order of the Med-Arbiter directly to the Secretary of Labor who shall decide the same within 15 calendar days.

Sec. 15, Rule XI, Book V, LC IRR: the Decision or Resolution of the Secretary of the DOLE on appeal shall be final and executory. Upon finality of the Decision, the entire records of the case shall be remanded to the office of origin for implementation, unless restrained by appropriate court.

Even if there was no procedural flaw, still the CA should have denied respondent’s petition for certiorari. In certification elections, the employer is a bystander. It has no right or material interest to assail the certification election. When a petition for certification election is filed by a legitimate labor organization, it is good policy of the employer not to have any participation or partisan interest in the choice of the bargaining representative.

I. ANNULMENT

1. ALLEGATIONS/GROUNDS

224. UNITED EMPLOYEES UNION OF GELMART INDUSTRIES V. NORIEL 67 SCRA

267 (75)

The results of the election cannot be set aside. What is significant in a certification election is that employees are given the opportunity to know who shall represent them. In this case, the election cannot be set aside on the fact that the UEUGIP (union) apparently had an issue as to its leadership, there being a clash between two factions in the same union. The grievance complained of is more fancied than real. UEUGIP has little support and could not match GATCORD. GATCORD got 64% while UEUGIP got 4.5% of the votes. The majority must rule in a certification election.

225. NATIONAL FEDERATION OF LABOR V. SECRETARY OF LABOR 287 SCRA 599

(98) The complaint in this case was that a number of employees were not able to cast their votes because they were not properly notified of the date. There was also the allegations of ATU-TUCP that it couldn’t really identify all the voters who voted except for some; that polling precincts were not really conducive to secrecy as they were scattered in different places outside the company premises, in waiting sheds and in the back of vehicles, etc.; and that some voters were dictated on to vote for #3, which was the union NFL. The records shows that as early as August 22 and 30, 1989, employees already wrote letters/affidavits alleging irregularities in the elections and disfranchisement of workers as grounds to question the election. These were attached to respondent’s petition just 16 days after the election.

226. DHL PHILIPPINES CORPORATION UNITED RANK AND FILE ASSOCIATION-

FEDERATION OF FREE WORKERS V. BUKLOD NG MANGGAGAWA NG DHL

PHILIPPINES CORPORATION 434 SCRA 670 (04)

The making of false statements or misrepresentations that interfere with the free choice of the employees is a valid ground for protest. A certification election may be set aside for misstatements made during the campaign, where 1) a material fact has been misrepresented in the campaign; 2) an opportunity for reply has been lacking; and 3) the misrepresentation has had an impact on the free choice of the employees participating in the election. A misrepresentation is likely to have an impact on their free choice, if it comes from a party who has special knowledge or is in an authoritative position to know the true facts. This principle holds true, especially when the employees are unable to evaluate the truth or the falsity of the assertions.

The fact that the officers of petitioner especially its president, misrepresented it to the voting employees as an independent union constituted a substantial misrepresentation of material facts of vital concern to those employees. The materiality of such misrepresentation is self-evident. The employees wanted an independent union to represent them in collective bargaining, free from outside interference. Thus, upon knowing that petitioner was in fact an affiliate of the FFW, the members disaffiliated from petitioner and organized themselves into an independent union. Additionally, the misrepresentation came from petitioner’s recognized representative, who was clearly in a position to hold himself out as a person who had special knowledge and was in an authoritative position to know the true facts. Although petitioner won in the election, it is now clear that it does not represent the majority of the bargaining employees, owing to the affiliation of its members with respondent.

2. IRREGULARITIES

227. CONFEDERATION OF CITIZENS LABOR UNION V. NORIEL 116 SCRA 694 (82)

The certification election is invalid because of certain irregularities such as that (1) the workers on the night shift (10p.m. to 6a.m.)



and some of those in the afternoon shift were not able to vote, so much so that out of 1,010 voters only 692 voted and about 318 failed to vote; (2) the secrecy of the ballot was not safeguarded; (3) the election supervisors were remiss in their duties and were apparently "intimidated" by a union representative and (4) the participating unions were overzealous in wooing the employees to vote in their favor by resorting to such tactics as giving free tricycle rides and T-shirts.

The purpose of a certification election is to give the employees "true representation in their collective bargaining with an employer" That purpose was not achieved in the run-off election because many employees or union members were not able to vote and the employer, through apathy or deliberate intent, did not render assistance in the holding of the election.

228. TIMBUNGCO V. CASTRO 183 SCRA 140 (90)

The election of officers is valid, although there is no record of the number of members who attended the meeting, the number of those who actually voted, and the number of votes obtained by each candidate, and that a COMELEC had not been formed to supervise the election.

In the first place, it does not at all appear that the dispensing by the membership of the Kapisanan with certain technical requirements or formalities in relation to the election had resulted in the deprivation of any substantial right or prerogative of anyone, or caused the perpetration of a fraud or other serious anomaly, or more importantly, precluded the expression and ascertainment of the popular will in the choice of officers. In the second place, the objections to the elections of officers on July 15, 1984 have come too late, and they must be deemed to have forfeited their right to impugn the same. Under the Rules implementing the Labor Code, protests against elections should be formalized before the med-arbiter within (5) days from the close of the election proceedings and must be decided by the latter within (20) working days. In this case, the protest against the election was presented to the med-arbiter only after the lapse of almost (2) years after it was held. And in that interval, no informal protest, oral or written, was ever presented against the election. Indeed, there was tacit acceptance of the regularity of the elections and the results thereof, for during that period of almost (2) years, certain significant events took place without demur or objection of any sort on the part of private respondents and the rest of the members of the Kapisanan.

6. CERTIFICATION OF DESIGNATED MAJORITY UNION

Article 255. Exclusive bargaining representation and workers’ participation in policy and decision-making. The labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining. However, an individual employee or group of employees shall have the right at any time to present grievances to their employer. Any provision of law to the contrary notwithstanding, workers shall have the right, subject to such rules and regulations as the Secretary of Labor and Employment may promulgate, to participate in policy and decision-making processes of the establishment where they are employed insofar as said processes will directly affect their rights, benefits and welfare. For this purpose, workers and employers may form labor-management councils: Provided, That the representatives of the workers in such labor-management councils shall be elected by at least the majority of all employees in said establishment. (As amended by Section 22, Republic Act No. 6715, March 21, 1989) Article 256. Representation issue in organized establishments. In organized establishments, when a verified petition questioning the majority status of the

incumbent bargaining agent is filed before the Department of Labor and Employment within the sixty-day period before the expiration of the collective bargaining agreement, the Med-Arbiter shall automatically order an election by secret ballot when the verified petition is supported by the written consent of at least twenty-five percent (25%) of all the employees in the bargaining unit to ascertain the will of the employees in the appropriate bargaining unit. To have a valid election, at least a majority of all eligible voters in the unit must have cast their votes. The labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit. When an election which provides for three or more choices results in no choice receiving a majority of the valid votes cast, a run-off election shall be conducted between the labor unions receiving the two highest number of votes: Provided, that the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast. At the expiration of the freedom period, the employer shall continue to recognize the majority status of the incumbent bargaining agent where no petition for certification election is filed. (As amended by Section 23, Republic Act No. 6715, March 21, 1989) Art. 212. Definitions. j. "Bargaining representative" means a legitimate labor organization whether

or not employed by the employer.

A. MAJORITY UNION

229. NATIONAL UNION, ETC V. SEC OF DOLE, 594 SCRA 767 (09)

The conduct of a certification election has a two-fold objective: to determine the appropriate bargaining unit and to ascertain the majority representation of the bargaining representative, if the employees desire to be represented at all by anyone.

The true importance of ascertaining the number of valid votes cast is for it to serve as basis for computing the required majority, and not just to determine which union won the elections. It is not simply the determination of who between two or more contending unions won, but whether it effectively ascertains the will of the members of the bargaining unit as to whether they want to be represented and which union they want to represent them.

230. PHIL. DIAMOND HOTEL AND RESORT, INC. V. MANILA DIAMOND HOTEL

EMPLOYEES UNION, 494 SCR 195 (06) According to Article 255 of the Labor Code, only the labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit is the exclusive representative of the employees in such unit for the purpose of collective bargaining. The union respondent is not the exclusive majority of the employees of the petitioner, hence it could not demand from the petitioner the right to bargain collectively in their behalf.

231. MARICALUM MINING V. BRION, 482 SCRA 87 (06) According to Article 256 of the Labor Code, for a union to become an exclusive bargaining representative of a particular establishment, it must emerge as winner in a certification election. In the case at bar, there was no certification election held challenging the majority status of NAMAWU as the exclusive bargaining representative of petitioner’s employees. NAMAWU, therefore, remains the exclusive bargaining representative of petitioner’s employees and possesses legal standing to represent them.

232. TRADE UNIONS OF THE PHIL., V. LAGUESMA, 236 SCRA 586 (94)

It is crystal clear from the records that the rank-and- file employees of private respondent's Glassware Division are, at present, represented by ILO-PHILS. Hence, petitioner's reliance on the March 22, 1990 Certification that "Transunion Corporation" has no existing collective bargaining agreement with any labor organization issued by Director



Bautista, Jr., is misplaced. Before petitioner filed a Petition for Certification election, or on November 15, 1989, Integrated Labor Organization (ILO-Phils.) was duly certified by DOLE as the sole and exclusive bargaining agent of the rank-and-file employees of Transunion Corporation-Glassware Division. The existence and filing of CBA entered into between ILO-PHILS and the employer on November 29, 1989 and confirmed in a Certification, dated April 24, 1990, issued by Director Romeo A. Young of DOLE-Region IV. The Certification of ILO-PHILS "as the sole and exclusive bargaining agent of the rank-and-file workers of Transunion-Glassware Division," means it shall remain as such during the existence of the CBA, to the exclusion of other labor organizations, including petitioner, and no petition questioning the majority status of the incumbent bargaining agent shall be entertained, nor shall certification election be conducted, outside of the fifty-day freedom period immediately before the expiry date of the five-year term of the CBA.

B. RUN-OFF ELECTION

233. NATIONAL UNION, ETC V. SEC OF DOLE, 594 SCRA 767 (09)

A run-off election refers to an election between the labor unions receiving the two (2) highest number of votes in a certification or consent election with three (3) or more choices, where such a certified or consent election results in none of the three (3) or more choices receiving the majority of the valid votes cast; provided that the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast.

In this case, having determined that no majority won, conducting a run-off election is proper.

C. EFFECT OF CERTIFICATION

234. NATIONAL V. SAN MIGUEL, 85 SCR 805 (02) CAN’T LOCATE THE CASE. SEEMS NEITHER THE SCRA NOR THE YEAR CITATION IS PROPER.

7. BARS TO CERTIFICATION ELECTION

A. ONE YEAR BAR RULE: PERIOD COVERED

235. R. TRANSPORT CORP. V. LAGUESMA, 227 SCRA 827 (93)

Petitioner further argued that the 2nd

petition for certification election by respondent CLOP, NAFLU, and ALU-TUCP were barred at least for a period of one year from the time the 1

st petition of

CLOP was dismissed. Petitioner’s contention is untenable. Section 3, Rule V, Book V of the Omnibus Rules Implementing the Labor Code provides:

“Sec. 3. When to file- In the absence of collective bargaining agreement, duly registered in accordance with Article 231 of the Code, a petition for certification election may be filed any time. However, no certification election may be held within one year from the date of issuance of a final certification election result...”

The phrase “final certification election result” means that there was an actual conduct of election i.e., ballots were cast and there was a counting of votes. In this case, there was no certification election precisely because the first petition was dismissed, on the ground of defective petition which did not include all the employees who should be properly included in the collective bargaining unit.

236. KAISAHAN NG MANGGAGAWANG PILIPINO V. TRAJANO, 201 SCRA 453

(91) The one-year period- known as the “certification year” during which the certified union is required to negotiate with the employer, and the certification election is prohibited has long expired. NAFLU has

been issued a declaration of a final certification election on February 27, 1981 but petitioner filed the petition for Cerification Election with the Bureau on April 11, 1985 or 4 years thereafter.

B. DEADLOCK BAR RULE

1. Requirements

237. NATIONAL CONGRESS OF UNIONS IN THE SUGAR INDUSTRY V. TRAJANO, 208

SCRA 18 (92)

Section 3, Rule V, Book V of the Omnibus Rules Implementing the Labor Code provides:

“Sec. 3. When to file- In the absence of collective bargaining agreement, duly registered in accordance with Article 231 of the Code, a petition for certification election may be filed any time. However, no certification election may be held within one year from the date of issuance of a final certification election result. Neither may a representation question be entertained if, before the filing of a petition for certification election, a bargaining deadlock to which an incumbent or certified bargaining agent is a party had been submitted to conciliation or arbitration or had become the subject of valid notice or strike or lockout.

“If a collective bargaining agreement has been duly registered in accordance with Art 231 of the Code, a petition for Certification election or a motion for intervention can only be entertained within 60 days prior to the expiry date of such agreement.”

The clear mandate of the aforequoted section is that a petition for certification election may be filed at any time, in the absence of collective bargaining agreement. Otherwise put, the rule prohibits the filing of a petition for certification election in the following cases: (1) During the existence of a collective bargaining agreement

except within the freedom period; (2) Within one (1) year from the date of the issuance of

declaration of a final certification election result; or (3) During the existence of a bargaining deadlock to which an

incumbent or certified bargaining agent is a party had been submitted to conciliation or arbitration or had become the subject of valid notice or strike or lockout

The Deadlock Bar Rule simply provides that a petition for certification election can only be entertained if there is no pending bargaining deadlock submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout. The principal purpose is to ensure stability in the relationship of the workers and the management.

2. No Deadlock

238. DIVINE WORD UNIVERSITY OF TACLOBAN V. SEC OF DOLE, 213 SCRA 759

(92)

A “deadlock” is defined as the counteraction of things producing entire stoppage: a state of inaction or neutralization caused by the opposition of persons or of factions: standstill. The word is synonymous with the word impasse which, within the meaning of American federal labor laws, “presupposes reasonable effort at good faith bargaining which, despite noble intentions, does not conclude in agreement between the parties.”

Be that as it may, the Court is not inclined to rule that there has been a deadlock or an impasse in the collective bargaining process. While it recognizes that technically, DWU has the right to file the petition for certification election as there was no bargaining deadlock to speak of, to grant its prayer would put an unjustified



premium on bad faith bargaining. The record is replete with evidence on the University’s reluctance and thinly disguised refusal to bargain with the duly certified bargaining agent, such that the inescapable conclusion is University evidently had no intention of bargaining with it.

C. CONTRACT BAR RULE

Art 232. Prohibition on Certification Election. The Bureau shall not entertain any petition for certification election or any other action which may disturb the administration of duly registered existing collective bargaining agreements affecting the parties except under Articles 253, 253-A, and 256 of this Code. (As amended by Section 15, Republic Act No. 675, march 21, 1989).

1. History

239. GENERAL MARITIME STEVEDORES OF THE PHIL. V SOUTH SEA SHIPPING LINES, 108 P 1112 (64)

The National Labor-Relations Board, which is the counterpart of our CIR, regards the conflict as one which requires it to strike a balance between the desirability of achieving stability in industrial relations secured through bargaining, on the one hand, and the benefits flowing from the grant of employee full freedom in their choice of representative, on the other.

The Board initially took the unqualified view that the existence of agreements was no bar to certification of bargaining representatives. This gave support to the doctrine of substitution whereby a change of representatives would alter an existing contract only by "substituting the new union for the old under its substantive terms"

The Board subsequently held that a CBA of reasonable duration is "in the interest of the stability of industrial relations", a bar to certification elections. In adopting the "contract-bar policy", the Board was careful in refusing to announce an inflexible rule as to its authority, and whenever possible, it avoided a determination of the contract's effect on its power of certification election.

In 1947, the Board held that it would regard a 2 year contract as a bar to an election until its expiration, because collective bargaining had: "So emerged from a stage of trial and error (that) the time has come when stability of industrial relations can better be served, without unreasonably restricting employees in their right to change representatives, by refusing to interfere with bargaining relations secured by collective agreements for 2 years' duration."

In 1953, the same Board announced that: "The time has arrived when stability of labor relations can be better served, without unreasonably restricting employees in their right to change representatives, by holding as a bar collective bargaining agreements even for 5 years' duration (when) a substantial part of the industry concerned is covered by contracts with a similar term."

From all this, it may be seen that the National Labor Relations Board has not adopted an iron-clad policy, rigid and fixed, but rather one to be applied according to the changing conditions and industrial practices

240. CONFEDERATION OF CITIZENS LABOR UNION V. NLRC, 60 SCRA 450 (74),

FERNANDO, J. CONCURRING OPINION, PP 467-420.

While the right to free and unfettered choice by employees of their exclusive bargaining representative should be respected, there are circumstances which in the interest of stability of labor relations, call for a relaxation in its observance.

The contract bar rule in the US: Two competing values clashed. Statute guarantees right to bargain through representatives of

their own choosing. Also, statute aims to achieve stability. So the Board declared that the existence of a CBA will not bar an election but the winning union was subject to the existing agreement.

The pragmatic approach has been followed, due note taken of varied as well as changing conditions to make it truly responsive. It’s going too far to affix to the contract bar rule the element of inflexibility.

2. Rule Statement

241. COLEGIO DE SAN JUAN DE LETRAN V ASSOCIATION OF

EMPLOYEES AND FACULTY OF LETRAN (340 SCRA 587; SEPT 18, 2000)

The "Contract Bar Rule" under Section 3, Rule XI, Book V, of the Omnibus Rules Implementing the Labor Code, provides that: " .… If a collective bargaining agreement has been duly registered in accordance with Article 231 of the Code, a petition for certification election or a motion for intervention can only be entertained within sixty (60) days prior to the expiry date of such agreement."

The rule is based on A 232, in relation to A253, 253-A and 256 of the LC. No petition for certification election for any representation issue may be filed after the lapse of the sixty-day freedom period. The old CBA is extended until a new one is signed. The rule is that despite the lapse of the formal effectivity of the CBA the law still considers the same as continuing in force and effect until a new CBA shall have been validly executed. Hence, the contract bar rule still applies. The purpose is to ensure stability in the relationship of the workers and the company by preventing frequent modifications of any CBA earlier entered into by them in good faith and for the stipulated original period.

242. SAMAHAN NG MGA MANGGAGAWA SA PERMEX V. SECRETARY

OF LABOR (286 SCRA 692; MARCH 2, 1998) Petitioner invokes the contract-bar rule. They contend that under Arts. 253, 253-A and 256 of the Labor Code and Book V, Rule 5, §3 of its Implementing Rules and Regulations, a petition for certification election or motion for intervention may be entertained only within 60 days prior to the date of expiration of an existing collective bargaining agreement. The purpose of the rule is to ensure stability in the relationships of the workers and the management by preventing frequent modifications of any collective bargaining agreement earlier entered into by them in good faith and for the stipulated original period. Excepted from the contract-bar rule are certain types of contracts which do not foster industrial stability, such as contracts where the identity of the representative is in doubt. Any stability derived from such contracts must be subordinated to the employees’ freedom of choice because it does not establish the kind of industrial peace contemplated by the law. Such situation obtains in this case. The petitioner entered into a CBA with Permex Producer when its status as exclusive bargaining agent of the employees had not been established yet.

243. BARBIZON PHILS. V. NAGKAKAISANG SUPERVISOR (261 SCRA

738; SEPTEMBER 16, 1996)

The petition for certification election cannot be deterred by the "contract-bar rule," which finds no application in the present case. The petitioning union NSBPI is not questioning the majority status of Buklod as the incumbent bargaining agent of petitioner's rank and file employees. The petition for certification election is addressed to a separate bargaining unit — the excluded employees of petitioner.



A contract bar applies in a situation where the petition is directed towards one and the same bargaining unit. This does not appear to be so in the case considering the built-in-limitation in the CBA excluding the workers sought to be represented by herein petitioner from its coverage, albeit, their being admittedly rank and file employees.

3. INCOMPLETE CONTRACT

244. BUKLOD NG SAULOG TRANSIT V. CASALLA (99 PHIL 16 ; MAY 9, 1956)

The trial court found that the collective bargaining agreement entered into by and between the Saulog Transit, Inc. and the Buklod ñg Saulog Transit "does not touch in substantial terms the rates of pay, wages, hours of employment, and other conditions of employment of all the employees in the company but seeks to establish merely a grievance procedure for drivers, conductors and inspectors who are members of the Buklod ñg Saulog." And even in the supplementary agreement, there is no clear-cut stipulation as to "rates of pay, wages, hours of employment, or other conditions or employment." The trial court took, however, into consideration both agreements and found that the first agreement being incomplete does not bar a certification election; and as to the supplementary agreement the Court held that it having been entered into after the filing of the petition for a certification election the same cannot and does not bar a certification election.

4. PREMATURE CONTRACT

245. SAMAHAN NG MANGGAGAWA SA PACIFIC PLASTIC V

LAGUESMA (267 SCRA 307; JANUARY 31, 1997)

Rule V, Book V of the Omnibus Rules Implementing the Labor Code, §4 provides: The representation case shall not, however, be adversely affected by a collective bargaining agreement registered before or during last 60 days of a subsisting agreement or during the pendency of the representation case.

This rule was applied in the case of ALU-TUCP v. Trajano where the Court held that the representation case will not be adversely affected by a CBA registered before or during the freedom period or during the pendency of the representation case. In ALU v. Calleja, it was also held that a CBA, which was prematurely renewed, is not a bar to the holding of a certification election.

246. CITIZEN’S LABOR UNION-CCLU V CIR

18 SCRA 624; November 12, 1966

Against the claim of the MME that it represents the will of the majority of the rank and file employees at the Pandacan Terminal unit, is the manifestation, advanced with vehemence, of both the CLU and the ESSO that after the secret ballot election, the employee composition has substantially changed because a great number of the employees and laborers in the Pandacan Terminal unit have left their employment, retired, or been compulsorily laid off with the approval of the CIR.

Against the presumption of continued majority status is the rule that such majority status does not continue forever --- (1) "especially in face of an assertion and offer of proof to the

contrary" (2) "in view of altered circumstances which have likely occurred in

the interim" (3) "by a change in the conditions which demonstrates that a shift

in sentiment actually exists among the employees, and is caused by other factors than the employer's refusal to bargain collectively.

5. EXCEPTION

247. PORT WORKERS UNION OF THE PHILS. (PWUP) VS. LAGUESMA, INTERNATIONAL CONTAINER TERMINAL SERVICES (ICTS)

March 18, 1992

It has long been settled that the policy of the Labor Code is indisputably partial to the holding of a certification election so as to arrive in a manner definitive and certain concerning the choice of the labor organization to represent the workers in a collective bargaining unit. Conformably to said basic concept, this Court recognized that the Bureau of Labor Relations in the exercise of sound discretion, may order a certification election notwithstanding the failure to meet the 30% requirement

The certification election is the best method of determining the will of the workers on the crucial question of who shall represent them in their negotiations with the management for a collective bargaining agreement that will best protect and promote their interests. It is essential that there be no collusion against this objective between an unscrupulous management and a union covertly supporting it while professing its loyalty to labor, or at least that the hopes of labor be not frustrated because of its representation by a union that does not enjoy its approval and support. It is therefore sound policy that any doubt regarding the real representation of the workers be resolved in favor of the holding of the certification election. This is preferable to the suppression of the voice of the workers through the prissy observance of technical rules that will exalt procedure over substantial justice.

6. NOT REGISTERED CBA

248. TRADE UNIONS OF THE PHILIPPINES V LAGUESMA 236 SCRA 586; September 21, 1994

It appears that the procedural requirement of filing the CBA within 30 days from date of execution under Article 231 was not met. The subject CBA was executed on November 28, 1989. It was ratified on December 8, 1989, and then filed with DOLE for registration purposes on March 14, 1990. Be that as it may, the delay in the filing of the CBA was sufficiently explained, i.e., there was an inter-union conflict on who would succeed to the presidency of ILO-PHILS. The CBA was registered by the DOLE only on May 4, 1990. It would be injudicious for us to assume, as what petitioner did, that the said CBA was filed only on April 30, 1990, as 5 days before its registration, on the unsupported surmise that it was done to suit the law that enjoins Regional Offices of DOLE to act upon an application for registration of a CBA within five 5 days from its receipt thereof. In the absence of any substantial evidence that DOLE officials or personnel, in collusion with private respondent, had antedated the filing date of the CBA, the presumption on regularity in the performance of official functions holds.

More importantly, non-compliance with the cited procedural requirement should not adversely affect the substantive validity of the CBA between ILO-PHILS and the Transunion Corp. covering the company's rank and file employees. A collective bargaining agreement is more than a contract. It is highly impressed with public interest for it is an essential instrument to promote industrial peace. Hence, it bears the blessings not only of the employer and employees concerned but even the Department of Labor and Employment. To set it aside on technical grounds is not conducive to the public good.

7. REGISTERED CBA



249. ASSOCIATION OF INDEPENDENT UNIONS IN THE PHILS V NLRC

(CENAPRO) 305 SCRA 219; March 25, 1999

When a CBA has been duly registered, a petition for certification election or motion for intervention may only be entertained within 60 days prior to the expiry of said agreement. Hence, CCC acted accordingly and did not commit union busting.

8. EXPIRED CBA


EMPLOYEES AND FACULTY OF LETRAN 340 SCRA 587; Sept 18, 2000

The Contract Bar Rule under Section 3, Rule XI, Book V, of the Omnibus Rules Implementing the Labor Code, provides that: If a collective bargaining agreement has been duly registered in accordance with Article 231 of the Code, a petition for certification election or a motion for intervention can only be entertained within sixty (60) days prior to the expiry date of such agreement. The rule is based on Article 232,[8] in relation to Articles 253, 253-A and 256 of the Labor Code. No petition for certification election for any representation issue may be filed after the lapse of the sixty-day freedom period. The old CBA is extended until a new one is signed. The rule is that despite the lapse of the formal effectivity of the CBA the law still considers the same as continuing in force and effect until a new CBA shall have been validly executed. Hence, the contract bar rule still applies. D. CONSENT ELECTION

II. SUSPENSION OF CERTIFICATION ELECTION

A. PREJUDICIAL QUESTION

Art. 248. Unfair labor practices of employers. It shall be unlawful for an employer to commit any of the following unfair labor practice: (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

251. BF GOODRICH PHILS. V. B.F. GOODRICH CONFIDENTIAL AND SALARIED

EMPLOYEES UNION

There is novelty in the specific question raised, as to whether or not a certification election may be stayed at the instance of the employer, pending the determination of an unfair labor practice case filed by it against certain employees affiliated with respondent-unions. That is a matter of which this Court has not had an opportunity to speak on previously. What is settled law, dating from the case of Standard Cigarette Workers' Union v. Court of Industrial Relations,

16 decided in 1957, is that if it were a labor

organization objecting to the participation in a certification election of a company-dominated union, as a result of which a complaint for an unfair labor practice case against the employer was filed, the status of the latter union must be first cleared in such a proceeding before such voting could take place. The reason is that the certification election may lead to the selection of an employer-dominated or company union as the employees' bargaining representative, and when the court finds that said union is employer-dominated in the unfair labor practice case, the union selected would be decertified and the whole election proceedings would be rendered useless and nugatory.

The unique situation before us, however, it exactly the reverse. It is management that would have an unfair labor practice case filed by it for illegal strike engaged in by some of its employees concluded,

before it would agree to the holding of a certification election. The reason that justifies the postponement of a certification election pending an inquiry, as to the bona fides of a labor union, precisely calls for a different conclusion. If under the circumstances disclosed, management is allowed to have its way, the result might be to dilute or fritter away the strength of an organization bent on a more zealous defense of labor's prerogatives. The difficulties and obstacles that must be then hurdled would not be lost on the rest of the personnel, who had not as yet made up their minds one way or the other. This is not to say that management is to be precluded from filing an unfair labor practice case. It is merely to stress that such a suit should not be allowed to lend itself as a means, whether intended or not, to prevent a truly free expression of the will of the labor group as to the organization that will represent it. It is not only the loss of time involved, in itself not likely to enhance the prospect of respondent-unions, but also the fear engendered in the mind of an ordinary employee that management has many weapons in its arsenal to bring the full force of its undeniable power against those of its employees dissatisfied with things as they are. There is no valid reason then for the postponement sought.

252. UNITED CMC TEXTILE WORKERS UNION VS BLR (JULY

CONVENTION) 128 SCRA 316; March 22, 1984

Under settled jurisprudence, the pendency of a formal charge of company domination is a prejudicial question that, until decided, bars proceedings for a certification election, the reason being that the votes of the members of the dominated union would not be free.

What is settled law, dating from the case of Standard Cigarette Workers' Union vs. Court of Industrial Relations (101 Phil. 126), decided in 1957, is that if it were a labor organization objecting to the participation in a certification election of a company-dominated union, as a result of which a complaint for an unfair labor practice case against tire employer was filed, the status of the latter union must be first cleared in such a proceeding before such voting could take place

B. PARTY AND ISSUE

253. BARRERA V CIR (PAWO) GRN L-32853; September 25, 1981

If it were a labor organization objecting to the participation in a certification election of a company dominated union, as a result of which a complaint for an unfair labor practice case against the employer was filed, the status of the latter union must be first cleared in such a proceeding before such voting could take place. However, In this case the situation is exactly the reverse. It is management that would have an unfair labor practice case filed by it for illegal strike engaged in by some of its employees concluded, before it would agree to the holding of a certification election. Thus, if management is allowed to have its way, the result might be to dilute or fritter away the strength of an organization bent on a more zealous defense of labor's prerogatives. The difficulties and obstacles that must be then hurdled would not be lost on the rest of the personnel, who had not as yet made up their minds one way or the other. This is not to say that management is to be precluded from filing an unfair labor practice case. It is merely to stress that such a suit should not be allowed to lend itself as a means, whether intended or not, to prevent a truly free expression of the will of the labor group as to the organization that will represent it. It is not only the loss of time involved, in itself not likely to enhance the prospect of respondent-



unions, but also the fear engendered in the mind of an ordinary employee that management has many weapons in its arsenal to bring the full force of its undeniable power against those of its employees dissatisfied with things as they are. There is no valid reason then for the postponement sought. This is one instance that calls for the application of the maxim, lex dilationes semper exhorret (The law abhors delays).

254. UNITED CMC TEXTILE WORKERS UNION VS BLR (JULY

CONVENTION) 128 SCRA 316; March 22, 1984

Under settled jurisprudence, the pendency of a formal charge of company domination is a prejudicial question that, until decided, bars proceedings for a certification election, the reason being that the votes of the members of the dominated union would not be free. The rationale for the suspension of the election proceedings has been further amplified as follows:

Only a formal charge of company domination may serve as a bar to and stop a certification election, the reason being that if there is a union dominated by the Company, to which some of the workers belong, an election among the workers and employees of the company would riot reflect the true sentiment and wishes of the said workers and employees from the standpoint of their welfare and interest, because as to the members of the company dominated union, the vote of the said members in the election would not be free. It is equally true, however, that the opposition to the holding of a certification election due to a charge of company domination can only be filed and maintained by the labor organization which made the charge of company domination because it is the entity that stands to lose and suffer prejudice by the certification election,' the reason being that its members might be overwhlemed in the voting by the other members controlled and dominated by the Company.

What is settled law, dating from the case of Standard Cigarette Workers' Union vs. Court of Industrial Relations (101 Phil. 126), decided in 1957, is that if it were a labor organization objecting to the participation in a certification election of a company-dominated union, as a result of which a complaint for an unfair labor practice case against tire employer was filed, the status of the latter union must be first cleared in such a proceeding before such voting could take place

9. EFFECT, PENDING PETITION, CANCELLATION TRADE UNION

REGISTRATION – 238 – A

Art238 A - Cancellation of registration; appeal. The certificate of registration of any legitimate labor organization, whether national or local, shall be cancelled by the Bureau if it has reason to believe, after due hearing, that the said labor organization no longer meets one or more of the requirements herein prescribed.

255. ASSOCIATION OF COURT OF APPEALS EMPLOYEES V. FERRER-CALLEJA

An order to hold a certification election is proper despite the pendency of the petition for cancellation of the registration certificate of the respondent union. The rationale for this is that at the time the respondent union filed its petition, it still had the legal personality to perform such act absent an order directing a cancellation.

It is the duty of the State to ensure industrial peace by granting everyone the opportunity to organize. Hence, a petition for certification election filed by an interested labor organization shall be dealt with a view to attaining this objective. This is especially true when it involves the ultimate respect for and protection of

the rights of government employees. In granting to employees in the civil service the right to organize, a procedure has been enacted to allow them to select what union shall be the recognized representative for all those in one agency, i.e., a certification election. (Sections 5, 6 and 12; Executive Order No. 180; Sections 3 and 4, Rule V and Rule VI, Rules and Regulations to Govern the Exercise of the Government Employees to Self-Organization)

NB: Significant case because it recognizes the rights of government employees to self-organize.

256. PROGRESSIVE DEVELOPMENT CORP V. LAGUESMA

Once a labor organization attains the status of a legitimate labor organization it begins to possess all of the rights and privileges granted by law to such organizations. Registration based on false and fraudulent statements and documents confer no legitimacy upon a labor organization irregularly recognized. Under such circumstances, the labor organization, not being a legitimate labor organization, acquires no rights, particularly the right to ask for certification election in a bargaining unit. The invalidity of respondent Union's registration would negate its legal personality to participate in certification election. A. GENERAL CONCEPTS

I. POLICY DECLARATION

ART XIII, 1987 CONSTITUTION LABOR 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. ART. 211. Declaration of Policy. - A. It is the policy of the State: (a) To promote and emphasize the primacy of free collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling labor or industrial disputes;

257. KIOK LOY VS NLRC (PAMBANSANG KILUSAN NG PAGGAWA)

Collective bargaining which is defined as negotiations towards a collective agreement, is one of the democratic frameworks under the New Labor Code, designed to stabilize the relation between labor and management and to create a climate of sound and stable industrial peace. It is a mutual responsibility of the employer and the Union and is characterized as a legal obligation. So much so that Article 249, par. (g) of the Labor Code makes it an unfair labor practice for an employer to refuse "to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work, and all other



terms and conditions of employment including proposals for adjusting any grievance or question arising under such an agreement and executing a contract incorporating such agreement, if requested by either party.

While it is a mutual obligation of the parties to bargain, the employer, however, is not under any legal duty to initiate contract negotiation.

The mechanics of collective bargaining is set in motion

only when the following jurisdictional preconditions are present, namely, (1) possession of the status of majority representation of the employees' representative in accordance with any of the means of selection or designation provided for by the Labor Code; (2) proof of majority representation; and (3) a demand to bargain under Article 251, par. (a) of the New Labor Code .

258. SCOUT RAMON ALBANO VS NORIEL

Certification Election: Concept and Purpose The same principle was again given expression in language equally emphatic in the subsequent case of Philippine Association of Free Labor Unions v. Bureau of Labor Relations:

6 "Petitioner thus

appears to be woefully lacking in awareness of the significance of a certification election for the collective bargaining process. It is the fairest and most effective way of determining which labor organization can truly represent the working force. It is a fundamental postulate that the will of the majority given expression in an honest election with freedom on the part of the voters to make their choice, is controlling. No better device can assure the institution of industrial democracy with the two parties to a business enterprise, management and labor, establishing a regime of self-rule.

7 That is to accord respect to the policy of the

Labor Code, indisputably partial to the holding of a certification election so as to arrive in a manner definitive and certain concerning the choice of the labor organization to represent the workers in a collective bargaining unit.

Employer’s Hands-off Policy There is relevance likewise to this excerpt from Monark International, Inc. v. Noriel, cited in the Comment of Solicitor General Mendoza: "There is another infirmity from which the petition suffers. It was filed by the employer, the adversary in the collective bargaining process. Precisely, the institution of collective bargaining is designed to assure that the other party, labor, is free to choose its representative. To resolve any doubt on the matter, a certification election, to repeat, is the most appropriate means of ascertaining its will. It is true that there may be circumstances where the interest of the employer calls for its being heard on the matter. An obvious instance is where it invokes the obstacle interposed by the contract-bar rule. This case certainly does not fall within the exception. Sound policy dictates that as much as possible, management is to maintain a strictly hands-off policy. For if it does not, it may lend itself to the legitimate suspicion that it is partial to one of the contending unions. That is repugnant to the concept of collective bargaining. That is against the letter and spirit of welfare legislation intended to protect labor and to promote social justice. The judiciary then should be the last to look with tolerance at such efforts of an employer to take part in the process leading to the free and untrammeled choice of the exclusive bargaining representative of the workers."

II. NATURE PURPOSE AND RULES OF INTERPRETATION

259. SUAREZ VS NATIONAL STEEL

CBA is more than a contract A CBA is more than a contract; it is a generalized code to govern a

myriad of cases which the draftsmen cannot wholly anticipate. It covers the whole employment relationship and prescribes the rights and duties of the parties.

[18] If the terms of the CBA are clear

and have no doubt upon the intention of the contracting parties, the literal meaning of its stipulation shall prevail. However, if the CBA imports ambiguity, then the parties' intention as shown by their conduct, words, actions and deeds -- prior to, during, and after executing the agreement, must be ascertained. That there is an apparent ambiguity or a failure to express the true intention of the parties, especially with regard to the retirement provisions of the 1994-1996 CBA, is evident in the opposing interpretations of the same by the Labor Arbiter and the CA on one hand and the NLRC on the other. It is settled that the parole evidence rule admits of exceptions. A party may present evidence to modify, explain or add to the terms of the written agreement if he raises as an issue, among others, an intrinsic ambiguity in the written agreement or its failure to express the true intent and agreement of the parties thereto.

[19]

Proof by Subsequent and Contemporaneous Acts While the CBA, on its face, does not contain an express prohibition of payment of retirement benefits to retrenched employees, the parties may still prove it by means of contemporaneous and subsequent acts of the parties to the agreement, such as the execution of the affidavits by the NASLU-FFW officers and respondent's managers.

260. LEPANTO VS LEPANTO LOCAL STAFF UNION

The terms and conditions of a collective bargaining contract constitute the law between the parties. If the terms of the CBA are clear and have no doubt upon the intention of the contracting parties, the literal meaning of its stipulation shall prevail.

It is settled that in order to ascertain the intention of the contracting parties, the Voluntary Arbitrator shall principally consider their contemporaneous and subsequent acts as well as their negotiating and contractual history and evidence of past practices.

261. UNITED EMPLOYEES UNION OF GELMART INDUSTRIES V NORIEL

The institution of collective bargaining is a prime manifestation of industrial democracy at work. The two parties to the relationship, labor and management, make their own rules by coming to terms. That is to govern themselves in matters that really count. As labor, however, is composed of a number of individuals, it is indispensable that they be represented by a labor organization of their choice. Thus may be discerned how crucial a certification election is.

There must be an opportunity to determine which labor organization shall act on their behalf. It is precisely because respect must be accorded to the will of labor thus ascertained that a general allegation of duress is not sufficient to invalidate a certification election; it must be shown by competent and credible proof. That is to give substance to the principle of majority rule, one of the basic concepts of a democratic polity.

262. PI MANUFACTURING VS PI MANUFACTURING SUPERVISORS

UNION

To compel employers simply to add on legislative increases in salaries or allowances without regard to what is already being paid, would be to penalize employers who grant their workers more than the statutory prescribed minimum rates of increases. Clearly, this would be counter-productive so far as securing the interests of labor is concerned.



At this juncture, it must be stressed that a CBA constitutes the law between the parties when freely and voluntarily entered into.

[13]

Here, it has not been shown that respondent PIMASUFA was coerced or forced by petitioner to sign the 1987 CBA. All of its thirteen (13) officers signed the CBA with the assistance of respondent NLU. They signed it fully aware of the passage of R.A. No. 6640. The duty to bargain requires that the parties deal with each other with open and fair minds. A sincere endeavor to overcome obstacles and difficulties that may arise, so that employer-employee relations may be stabilized and industrial strife eliminated, must be apparent.

[14] Respondents cannot invoke the

beneficial provisions of the 1987 CBA but disregard the concessions it voluntary extended to petitioner. The goal of collective bargaining is the making of agreements that will stabilize business conditions and fix fair standards of working conditions.

[15]

Definitely, respondents posture contravenes this goal.

263. ALMARIO VS PAL

The CBA is the law between the contracting parties – the collective bargaining representative and the employer-company. Compliance with a CBA is mandated by the expressed policy to give protection to labor. In the same vein, CBA provisions should be “construed liberally rather than narrowly and technically, and the courts must place a practical and realistic construction upon it, giving due consideration to the context in which it is negotiated and purpose which it is intended to serve.” This is founded on the dictum that a CBA is not an ordinary contract but one impressed with public interest. It goes without saying, however, that only provisions embodied in the CBA should be so interpreted and complied with. Where a proposal raised by a contracting party does not find print in the CBA, it is not a part thereof and the proponent has no claim whatsoever to its implementation.

PAL invested for the training of Almario to enable him to acquire a higher level of skill, proficiency, or technical competence so that he could efficiently discharge the position of A-300 First Officer. Given that, PAL expected to recover the training costs by availing of Almario’s services for at least three years. The expectation of PAL was not fully realized, however, due to Almario’s resignation after only eight months of service following the completion of his training course. He cannot, therefore, refuse to reimburse the costs of training without violating the principle of unjust enrichment.

C. WAIVER

264. RIVERA VS ESPIRITU

A CBA is “a contract executed upon request of either the employer or the exclusive bargaining representative incorporating the agreement reached after negotiations with respect to wages, hours of work and all other terms and conditions of employment, including proposals for adjusting any grievances or questions arising under such agreement.” The primary purpose of a CBA is the stabilization of labor-management relations in order to create a climate of a sound and stable industrial peace. In construing a CBA, the courts must be practical and realistic and give due consideration to the context in which it is negotiated and the purpose which it is intended to serve.

Article 253-A has a two-fold purpose. One is to promote industrial stability and predictability. Inasmuch as the agreement sought to promote industrial peace at PAL during its rehabilitation, said agreement satisfies the first purpose of Article 253-A. The other is to assign specific timetables wherein negotiations become a matter

of right and requirement. Nothing in Article 253-A, prohibits the parties from waiving or suspending the mandatory timetables and agreeing on the remedies to enforce the same.

In the instant case, it was PALEA, as the exclusive bargaining agent of PAL’s ground employees, that voluntarily entered into the CBA with PAL. It was also PALEA that voluntarily opted for the 10-year suspension of the CBA. Either case was the union’s exercise of its right to collective bargaining. The right to free collective bargaining, after all, includes the right to suspend it.

The acts of public respondents in sanctioning the 10-year suspension of the PAL-PALEA CBA did not contravene the “protection to labor” policy of the Constitution. The agreement afforded full protection to labor; promoted the shared responsibility between workers and employers; and the exercised voluntary modes in settling disputes, including conciliation to foster industrial peace."

B. BARGAINING PROCEDURE

1. PRIVATE PROCEDURE-

ART. 251. Duty to bargain collectively in the absence of collective bargaining agreements. - In the absence of an agreement or other voluntary arrangement providing for a more expeditious manner of collective bargaining, it shall be the duty of employer and the representatives of the employees to bargain collectively in accordance with the provisions of this Code.

2. CODE PROCEDURE

ART. 250. Procedure in collective bargaining. - The following procedures shall be observed in collective bargaining: (a) When a party desires to negotiate an agreement, it shall serve a written notice upon the other party with a statement of its proposals. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice; (b) Should differences arise on the basis of such notice and reply, either party may request for a conference which shall begin not later than ten (10) calendar days from the date of request. (c) If the dispute is not settled, the Board shall intervene upon request of either or both parties or at its own initiative and immediately call the parties to conciliation meetings. The Board shall have the power to issue subpoenas requiring the attendance of the parties to such meetings. It shall be the duty of the parties to participate fully and promptly in the conciliation meetings the Board may call; (d) During the conciliation proceedings in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes; and (e) The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to a voluntary arbitrator. (As amended by Section 20, Republic Act No. 6715, March 21, 1989).

265. TABIGUE VS INTERNATIONAL COPRA

A[n agency] is said to be exercising judicial function where [it] has the power to determine what the law is and what the legal rights of the parties are, and then undertakes to determine these questions and adjudicate upon the rights of the parties. Quasi-judicial function is a term which applies to the action, discretion, etc. of public administrative officers or bodies, who are required to investigate facts or ascertain the existence of facts, hold hearings, and draw conclusions from them as a basis for their official action and to exercise discretion of a judicial nature. NCMB is not a quasi-judicial body.

Pursuant to Article 260 of the Labor Code, the parties to a CBA shall name or designate their respective representatives to the



grievance machinery and if the grievance is unsettled in that level, it shall automatically be referred to the voluntary arbitrators designated in advance by parties to a CBA. Consequently only disputes involving the union and the company shall be referred to the grievance machinery or voluntary arbitrators

The right of any employee or group of employees to, at any time, present grievances to the employer does not imply the right to submit the same to voluntary arbitration.

3. NATURE OF PROCEDURE

266. ASSOCIATED LABOR UNIONS (ALU) VS. FERRER-CALLEJA The mechanics of collective bargaining are set in motion only when the following jurisdictional preconditions are present, namely, (1) possession of the status of majority representation by the employees' representative; (2) proof of majority representation; and (3) a demand to bargain

267. CALTEX V. BRILLANTES

True, union members have the right to demand wage increases through their collective force; but it is equally cogent that they should also be able to justify an appreciable increase in wages. We observe that private respondent's detailed allegations on productivity are unrebutted. It is noteworthy that petitioner ignored this argument of private respondent and based its demand for wage increase not on the ground that they were as productive as the Shell employees. Thus, we cannot attribute grave abuse of discretion to public respondent.

Although the union has every right to represent its members in the negotiation regarding the terms and conditions of their employment, it cannot negate their wishes on matters which are purely personal and individual to them. In this case, the forty employees freely opted to be covered by the Old Plan; their decision should be respected. The company gave them every opportunity to choose, and they voluntarily exercised their choice. The union cannot pretend to know better; it cannot impose its will on them.

No particular setup for a grievance machinery is mandated by law. Rather, Article 260 of the Labor Code, as incorporated by RA 6715, provides for only a single grievance machinery in the company to settle problems arising from "interpretation or implementation of their collective bargaining agreement and those arising from the interpretation or enforcement of company personnel policies." Article 260, as amended, reads:

Art. 260. Grievance Machinery and Voluntary Arbitration. The parties to a Collective Bargaining Agreement shall include therein provisions that will ensure the mutual observance of its terms and conditions. They shall establish a machinery for the adjustment and resolution of grievances arising from the interpretation or implementation of their Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies.

All grievances submitted to the grievance machinery which are not settled within seven (7) calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the Collective Bargaining Agreement.

For this purpose, parties to a Collective Bargaining Agreement shall name and designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators, or include in the agreement a procedure for the selection of such Voluntary Arbitrator or panel of Voluntary Arbitrators, preferably from the listing of qualified Voluntary Arbitrators duly accredited by the Board. In case the parties fail to

select a Voluntary Arbitrator or panel of Voluntary Arbitrators, the Board shall designate the Voluntary Arbitrator or panel of Voluntary Arbitrators, as may be necessary, pursuant to the selection procedure agreed upon in the Collective Bargaining Agreement, which shall act with same force and effect as if the Arbitrator or panel of Arbitrators has been selected by the parties as described above

A signing bonus may not be demanded as a matter of right. If it is not agreed upon by the parties or unilaterally offered as an additional incentive by private respondent, the condition for awarding it must be duly satisfied. In the present case, the condition sine qua non for its grant — a non-strike — was not complied with.

It should be understood that bargaining is not equivalent to an adversarial litigation where rights and obligations are delineated and remedies applied. It is simply a process of finding a reasonable solution to a conflict and harmonizing opposite positions into a fair and reasonable compromise. When parties agree to submit unresolved issues to the secretary of labor for his resolution, they should not expect their positions to be adopted in toto. It is understood that they defer to his wisdom and objectivity in insuring industrial peace. And unless they can clearly demonstrate bias, arbitrariness, capriciousness or personal hostility on the part of such public officer, the Court will not interfere or substitute the said officer's judgment with its own. In this case, it is possible that this Court, or some its members at least, may even agree with the wisdom of petitioner's claims. But unless grave abuse of discretion is cogently shown, this Court will refrain from using its extraordinary power of certiorari to strike down decisions and orders of quasi-judicial officers specially tasked by law to settle administrative questions and disputes. This is particularly true in the resolution of controversies in collective bargaining agreements where the question is rarely one of legal right or wrong — nay, of black and white — but one of wisdom, cogency and compromise as to what is possible, fair and reasonable under the circumstances.

268. AMERICAN PRESIDENT LINES VS CLAVE

The following elements are generally considered to determine whether an employer-employee relationship exists: (1) the selection and engagement of the employee; (2) the payment of wages; (3) the power of dismissal; and (4) the power to control the employee's conduct-although the latter is the most important element.

An employer cannot be held guilty of ULP for not renewing an employment contract that already expired.

269. NATIONAL UNION OF RESTAURANT WORKERS V CIR

It is true that under Sec 14, RA 875 whenever a party serves a written notice upon the employer making some demands the latter shall reply thereto not later than 10 days from receipt thereof, but this condition is merely procedural, and as much its non-compliance cannot be deemed to be an act of unfair labor practice. The fact is respondents did not ignore the letter sent by the union so much so that they called a meeting to discuss its demands.


EMPLOYEES AND FACULTY OF LETRAN

Article 252 of the Labor Code defines the meaning of the phrase “duty to bargain collectively”.

Article 252. Meaning of duty to bargain collectively. – The duty to bargain collectively means the performance of mutual obligation to meet and convene promptly and expeditiously in



good faith for the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreements if requested by either party but such duty does not compel any party to agree to a proposal or to make any concession.

There is a requirement on both parties of the performance of the mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement. The union lived up to its requisite when it presented its proposals for the CBA to petitioner. On the other hand, petitioner devised ways and means in order to prevent the negotiation.

- Petitioner’s utter lack of interest in bargaining with the union is obvious in its failure to make a timely reply to the proposals presented by the union. This is a clear violation of Article 250 of the Labor Code

Article 250. Procedure in collective bargaining. – The following procedures shall be observed in collective bargaining: (a) When a party desires to negotiate an agreement, it shall serve a written notice upon the other party with a statement of its proposals. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice. Xxx

In order to allow the employer to validly suspend the bargaining process there must be a valid petition for certification election raising a legitimate representation issue. Hence, the mere filing of a petition for certification election does not ipso facto justify the suspension of negotiation by the employer. The petition must first comply with the provisions of the Labor Code and its Implementing Rules. Foremost is that a petition for certification election must be filed during the sixty-day freedom period.

271. KIOK LOY (SWEDEN ICE CREAM PLANT) V NLRC, KILUSAN

Article 249, par. (g) LC makes it an unfair labor practice for an employer to refuse "to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work, and all other terms and conditions of employment including proposals for adjusting any grievance or question arising under such an agreement and executing a contract incorporating such agreement, if requested by either party."

Collective bargaining which is defined as negotiations towards a collective agreement, is designed to stabilize the relation between labor and management and to create a climate of sound and stable industrial peace. It is a mutual responsibility of the employer and the Union and is characterized as a legal obligation.

While it is a mutual obligation of the parties to bargain, the employer, however, is not under any legal duty to initiate contract negotiation.

The mechanics of collective bargaining is set in motion only when the ff. jurisdictional preconditions are present, namely, (1) possession of the status of majority representation of the employees' representative in accordance with any of the means of selection or designation provided for by the LC; (2) proof of majority representation; and (3) a demand to bargain under Art 251, par. (a) of the Labor Code . . . all of which preconditions are undisputedly present in the instant case.

272. NISSAN MOTORS V. SEC. DOLE

(Topic – conciliation proceedings)

The Court cannot sanction the award made by the DOLE Sec. based ostensibly on the revelation of Administrator Olalia that it was sourced from the confidential position given him by the company. The reason – Art. 233 of the LC prohibits the use in evidence of confidential information given during conciliation proceedings. The administrator clearly breached this provision. This confidential information given to Admin. Olalia was made prior to theIUnion’s slowdown and defiance of the Assumption order causing it additional losses.

DUTY TO BARGAIN

Art. 250. Procedure in collective bargaining. The following procedures shall be observed in collective bargaining: a. When a party desires to negotiate an agreement, it shall serve a written

notice upon the other party with a statement of its proposals. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice;

b. Should differences arise on the basis of such notice and reply, either party may request for a conference which shall begin not later than ten (10) calendar days from the date of request.

c. If the dispute is not settled, the Board shall intervene upon request of either or both parties or at its own initiative and immediately call the parties to conciliation meetings. The Board shall have the power to issue subpoenas requiring the attendance of the parties to such meetings. It shall be the duty of the parties to participate fully and promptly in the conciliation meetings the Board may call;

d. During the conciliation proceedings in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes; and

e. The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to a voluntary arbitrator. (As amended by Section 20, Republic Act No. 6715, March 21, 1989)

Art. 251. Duty to bargain collectively in the absence of collective bargaining agreements. In the absence of an agreement or other voluntary arrangement providing for a more expeditious manner of collective bargaining, it shall be the duty of employer and the representatives of the employees to bargain collectively in accordance with the provisions of this Code. Art. 252. Meaning of duty to bargain collectively. The duty to bargain collectively means the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreements if requested by either party but such duty does not compel any party to agree to a proposal or to make any concession. Art. 253. Duty to bargain collectively when there exists a collective bargaining agreement. When there is a collective bargaining agreement, the duty to bargain collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime. However, either party can serve a written notice to terminate or modify the agreement at least sixty (60) days prior to its expiration date. It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties. Art. 242. Rights of legitimate labor organizations. C. To be furnished by the employer, upon written request, with its annual audited financial statements, including the balance sheet and the profit and loss statement, within thirty (30) calendar days from the date of receipt of the request, after the union has been duly recognized by the employer or certified as the sole and exclusive bargaining representative of the employees in the bargaining unit, or within sixty (60) calendar days before the expiration of the existing collective bargaining agreement, or during the collective bargaining negotiation;



1. MEANING OF DUTY

273. UNIVERSITY OF SAN AGUSTIN INC V. UNIVERSITY OF SAN AGUSTIN

EMPLOYEES UNION The law sets is the minimum, not the maximum percentage, and there is even a 10% portion the disposition of which the law does not regulate. Hence, if academic institutions wish to allot a higher percentage for salary increases and other benefits, nothing in the law prohibits them from doing so. 274. UNION OF FILIPRO EMPLOYEES ETC. V. NESTLE PHILS 1991 (NESTLE PHILS V.

NLRC, UNION OF FILIPRO EMPLOYEES)

The company's contention that its retirement plan is non-negotiable, is not well-taken. The NLRC correctly observed that the inclusion of the retirement plan in the collective bargaining agreement as part of the package of economic benefits extended by the company to its employees to provide them a measure of financial security after they shall have ceased to be employed in the company, reward their loyalty, boost their morale and efficiency and promote industrial peace, gives "a consensual character" to the plan so that it may not be terminated or modified at will by either party

The fact that the retirement plan is non-contributory, i.e., that the employees contribute nothing to the operation of the plan, does not make it a non-issue in the CBA negotiations. As a matter of fact, almost all of the benefits that the petitioner has granted to its employees under the CBA — salary increases, rice allowances, mid-year bonuses, 13th and 14th month pay, seniority pay, medical and hospitalization plans, health and dental services, vacation, sick & other leaves with pay — are non-contributory benefits. Since the retirement plan has been an integral part of the CBA since 1972, the Union's demand to increase the benefits due the employees under said plan, is a valid CBA issue.

2006

Issue 1: The purpose of collective bargaining is the acquisition or attainment of the best possible covenant or terms relating to economic and non-economic benefits granted by laborers and due the employees. In demanding that the terms of the Retirement Plan be opened for renegotiation, the members of UFE-DFA-KMU are acting well within their rights as we have, indeed, declared that the Retirement Plan is consensual in character; and so, negotiable. (1991 case cited)

Issue 2: Allegation of Unfair Labor Practice. Nestle is accused of violating its duty to bargain collectively when it purportedly imposed a pre-condition (retirement benefits) to its agreement to discuss and engage in collective negotiations with the union. By imputing bad faith unto the actions of Nestle, the union had the burden of proof to present substantial evidence to support the allegation of ULP. The union failed to substantiate its claim.

2008 (Motion for partial reconsideration)

Failure to reach an agreement after negotiations have continued for a reasonable period does not establish a lack of good faith. The statutes invite and contemplate a collective bargaining contract, but they do not compel one. The duty to bargain does not include the obligation to reach an agreement.

For a charge of ULP to prosper, it must be shown that Nestle was motivated by ill will, “bad faith or fraud, or was oppressive to labor, or done in a manner contrary to morals…” in disclaiming unilateral grants as proper subjects of their CB negotiations. While the law

makes it an obligation for the employer and employees to bargain collectively with each other, such compulsion does not include the commitment to precipitately accept or agree to the proposals of the other. All it contemplates is that both parties should approach the negotiation with an open mind and make reasonable effort to reach a common ground of agreement.

275. GENERAL MILLING CO. VS. CA

The union lived up to this obligation when it presented proposals for a new CBA to within three (3) years from the effectivity of the original CBA. But GMC failed in its duty under Article 252 to make a counter-proposal. Union devised a flimsy excuse by questioning the existence of the union and the status of its membership to prevent any negotiation.

Corporation’s failure to make a timely reply to the proposals presented by the union is indicative of its utter lack of interest in bargaining with the union. Its excuse that it felt the union no longer represented the workers, was mainly dilatory as it turned out to be utterly baseless. This is an indication of bad faith. Where the employer did not even bother to submit an answer to the bargaining proposals of the union, there is a clear evasion of the duty to bargain collectively. Since it was GMC which violated the duty to bargain collectively it had lost its statutory right to negotiate or renegotiate the terms and conditions of the draft CBA proposed by the union.

276. REPUBLIC SAVINGS BANK

When the respondents complained against nepotism, favoritism and other management practices, they were acting within an area marked out by the Act as a proper sphere of collective bargaining. Even the reference to immorality was not irrelevant as it was made to support the respondents' other charge that the bank president had failed to provide wholesome working conditions, let alone a good moral example, for the employees by practicing discrimination and favoritism in the appointment and promotion of certain employees on the basis of illicit relations or blood relationship with them.

Good faith bargaining required of the Bank an open mind and a sincere desire to negotiate over grievances.

11 The grievance

committee, created in the collective bargaining agreements, would have been an appropriate forum for such negotiation. Indeed, the grievance procedure is a part of the continuous process of collective bargaining.

12 It is intended to promote, as it were, a

friendly dialogue between labor and management as a means of maintaining industrial peace.

2. DEADLOCK

277. SAN MIGUEL CORP. V. NLRC Deadlock is defined as the situation between the labor and the management of the company where there is failure in the collective bargaining negotiations resulting in a stalemate. Union cites collective bargaining deadlock as grounds for filing notice of strike. These grounds, however, appear more illusory than real. For failing to exhaust all the steps in the grievance machinery and arbitration proceedings provided in the CBA, the notice of strike should have been dismissed by the NLRC and union ordered to proceed with the grievance arbitration proceedings. In abandoning the grievance proceedings and stubbornly refusing to avail of the remedies under the CBA, private respondent violated the mandatory provisions of the CBA.



3. MINUTES OF NEGOTIATION

278. SAMAHANG MANGGAGAWA SA TOP FORM V. NLRC

Petitioner union anchors its arguments on the alleged commitment of private respondent to grant an automatic across-the-board wage increase in the event that a statutory or legislated wage increase is promulgated. It cites as basis therefor, a portion of the Minutes of the collective bargaining negotiation.

The basic premise of this argument is definitely untenable. To start with, if there was indeed a promise or undertaking on the part of private respondent to obligate itself to grant an automatic across-the-board wage increase, petitioner union should have requested or demanded that such “promise or undertaking” be incorporated in the CBA. After all, petitioner union has the means under the law to compel private respondent to incorporate this specific economic proposal in the CBA. It could have invoked Article 252 of the Labor Code defining “duty to bargain,” thus, the duty includes “executing a contract incorporating such agreements if requested by either party.” Petitioner union’s assertion that it had insisted on the incorporation of the same proposal may have a factual basis considering the allegations in the aforementioned joint affidavit of its members. However, Article 252 also states that the duty to bargain “does not compel any party to agree to a proposal or make any concession.” Thus, petitioner union may not validly claim that the proposal embodied in the Minutes of the negotiation forms part of the CBA that it finally entered into with private respondent.

Petitioner union’s contention that the Minutes of the collective bargaining negotiation meeting forms part of the entire agreement is pointless. The Minutes reflects the proceedings and discussions undertaken in the process of bargaining for worker benefits in the same way that the minutes of court proceedings show what transpired therein. At the negotiations, it is but natural for both management and labor to adopt positions or make demands and offer proposals and counter-proposals. However, nothing is considered final until the parties have reached an agreement. In fact, one of management’s usual negotiation strategies is to “x x x agree tentatively as you go along with the understanding that nothing is binding until the entire agreement is reached.” If indeed private respondent promised to continue with the practice of granting across-the-board salary increases ordered by the government, such promise could only be demandable in law if incorporated in the CBA.

4. SUSPENSION OF BARGAINING

279. COLLEGIO DE SAN JUAN DE LETRAN V. ASSN. OF EMPLOYEES (SUPRA, BARGAINING PROCEDURE, P. 27)

5. WAIVER OF RIGHT

280. RIVERA V. ESPIRITU (SUPRA, WAIVER P. 27 OUTLINE) BARGAINABLE ISSUES

1. ISSUES

281. PHIL. AM. MANAGEMENT CO. INC. V. PHIL. AM. MANAGEMENT EMPLOYEES

ASSN. Questions of minimum wages are not within the sphere of bargaining between the parties. For legislation of that character proceeds on the premise that there is a fkloor below which the amount paid laibor not ffall. That is to assure decent living conditions. Such an enactment is compulsory in nature; not even the consent of the employees themselves suffices to defeat its operation. Plainly put, the question

of minimum wage is not negotiable. What the law decrees must be obeyed.

282. MANILA FASHIONS V. NLRC

A CBA provision is void where the parties, in agreeing to condone the implementation of a Wage Order, contravene its mandate of wage increase – it is only the Tripartite Wage Productivity Board of the DOLE that could approve an exemption of an establishment from coverage of a Wage Order. Parties to a CBA may not, by themselves, set a wage lower than the minimum wage. To do so would render nugatory the purpose of a wage exemption, not to mention the possibility that employees may be duped or be unwittingly put in a position to accept a lower wage.

If petitioner is a financially distressed company then it should have applied for a wage exemption so that it could meet its labor costs without endangering its viability or its very existence upon which both management and labor depend for a living.

D. BARGAINABLE ISSUES

1. ISSUES

283. SAMAHANG MANGGAGAWA SA TOP FORM MANUFACTURING UNITED

WORKER’S OF THE PHILIPPINES VS. NLRC (98), SUPRA The question as to what are mandatory and what are merely permissive subjects of collective bargaining is of significance on the right of a party to insist on a position to the point of stalemate. A party may refuse to enter into a collective bargaining contract unless it includes a desired provision as to a matter which is a mandatory subject of collective bargaining; but a refusal to contract unless the agreement covers a matter which is not a mandatory subject is in substance a refusal to bargain about matters which are mandatory subjects of collective bargaining; and it is no answer to the charge of refusal to bargain in good faith that the insistence on the disputed clause was not the sole cause of the failure to agree or that agreement was not reached with respect to other disputed clauses. The company’s refusal to grant the union’s demand to a provision for an across the board wage increase for wage orders did not mean it was bargaining in bad faith and it had a right to insist on its position to the point of a stalemate since this was a mandatory subject of collective bargaining being an important economic provision. Likewise, the union could have insisted on its position on the issue by refusing to enter into a CBA without the concession of such provision. 284. STANDARD CHARTERED BANK EMPLOYEES UNION VS. CONFESOR (04), SUPRA

Article 248(a) of the Labor Code, considers it an unfair labor practice when an employer interferes, restrains or coerces employees in the exercise of their right to self-organization or the right to form association. The right to self-organization necessarily includes the right to collective bargaining. Parenthetically, if an employer interferes in the selection of its negotiators or coerces the Union to exclude from its panel of negotiators a representative of the Union, and if it can be inferred that the employer adopted the said act to yield adverse effects on the free exercise to right to self-organization or on the right to collective bargaining of the employees, ULP under Article 248(a) in connection with Article 243 of the Labor Code is committed.

However, in order to show that the employer committed ULP under the Labor Code, substantial evidence is required to support the claim. Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The circumstances that occurred during the negotiation do not show that the suggestion made by Diokno to



Divinagracia to exclude Umali from the union’s negotiating panel is an anti-union conduct from which it can be inferred that the Bank consciously adopted such act to yield adverse effects on the free exercise of the right to self-organization and collective bargaining of the employees, especially considering that such was undertaken previous to the commencement of the negotiation and simultaneously with Divinagracia’s suggestion that the bank lawyers be excluded from its negotiating panel.

285. UST V UST (09)

A signing bonus is a grant motivated by the goodwill generated when a CBA is successfully negotiated and signed between the employer and the union. A bonus is an act of gratuity or liberality by the giver; when UST filed the instant petition seeking the affirmance of the DOLE Secretary’s order in its entirety which included a signing bonus which there was originally basis for and assailing only the increased amount of the signing bonus awarded, it is considered to have unqualifiedly agreed to grant the original award to the respondent union’s members. E. COLLECTIVE BARGAINING

1. DEFINITION

286. TEMIC VS TEMIC (09) When the CBA was made between the union and management, management had already established a practice of forwarding some work in the warehouse department to service providers. In this sense, the union accepted the forwarding arrangement, albeit implicitly, when it signed the CBA with the company. Thereby, the union agreed, again implicitly by its silence and acceptance, that jobs related to the contracted forwarding activities are not regular company activities and are not to be undertaken by regular employees falling within the scope of the bargaining unit but by the forwarders’ employees. Thus, the skills requirements and job content between forwarders’ jobs and bargaining unit jobs may be the same, and they may even work on the same company products, but their work for different purposes and for different entities completely distinguish and separate forwarder and company employees from one another.

287. FACULTY ASSOCIATION OF MIT VS. CA The Collective Bargaining Agreement (CBA) is a contract between the parties for the duration of its term. Until a new CBA is executed between the parties, they are duty bound to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement. The law does not provide for any exception nor qualification on which economic provisions of the existing agreement are to retain its force and effect. Therefore, it must be understood as encompassing all the terms and conditions in the said agreement. The CBA is the norm of conduct between the parties and compliance therewith is mandated by express policy of the law. The proposed new system of faculty ranking is a contravention from of the existing provision of the CBA and thus violative of the law between the parties.

288. TSPI VS. TSPI EMPLOYER’S UNION (08) The CBA is the law between the parties and they are obliged to comply with its provisions. If the terms of the contract, as in a CBA, are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of the stipulations shall control. In the case at bar the CBA clearly states that the wage increases for the years 2001 and 2002 shall be deemed inclusive of the mandated

minimum wage increases under future wage orders that may be issued. 289. HONDA PHILIPPINES VS. SAMAHAN NG MALAYANG MAGGAGAWA SA HONDA

(05) A collective bargaining agreement refers to the negotiated contract between a legitimate labor organization and the employer concerning wages, hours of work and all other terms and conditions of employment in a collective bargaining unit. As in all contracts, the parties to a CBA may establish such stipulations, clauses, terms and conditions as they may deem convenient provided these are not contrary to law, morals, good customs, public order, or public policy. Thus, where the CBA is clear and unambiguous it becomes the law between the parties and compliance therewith is mandated by express policy of law.

290. UNIVERSITY OF IMMACULATE CONCEPCION VS. SECRETARY OF LABOR (02) A CBA refers to the negotiated contract between a legitimate labor organization and the employer concerning wages, hours of work and all other terms and conditions of employment in a bargaining unit, including mandatory provisions for grievances and arbitration machineries (Manila Fashions v NLRC). As in all other contracts, there must be clear indications of that the parties reached a meeting of the minds.

291. NATIONAL FEDERATION OF LABOR VS. CA (04) A collective bargaining agreement refers to the negotiated contract between the legitimate labor organization refers to the negotiated contract between the legitimate labor organization and the employer concerning wages, hours of work and all other terms and conditions in a bargaining unit. Unless annulled, the CBA, as a contract governing the employer and the employees respecting to the terms of employment, should prevail.

292. RIVERA VS. ESPIRITU (02) A CBA is a contract executed upon the request of either the employer or the exclusive bargaining representative incorporating the agreement reached after negotiations with respect to wages, hours of work, and all other terms and conditions of employment, including proposals for adjusting any grievances or questions arising under such agreement. The primary purpose of the CBA is the stabilization of labor-management relations in order to create a climate of sound and stable industrial peace. In construing a CBA, the courts must be practical and realistic and give due consideration to the context in which it is negotiated and the purpose which it is intended to serve. The ten year suspension of the PAL-PALEA CBA did not contravene the “protection to labor” policy of the Constitution. The agreement afforded full protection to labor; promoted the shared responsibility between workers and employers; and the exercised voluntary modes in settling disputes, including conciliation to foster industrial disputes, including conciliation to foster industrial peace.

2. CONTENTS

a. See sample CBAs

b. Effect of Sub-standard Contract 239(f); CF 239 as amended

239 no longer has 239 (f) such that entering into substandard contracts is no longer a ground for cancellation of union registration

Art 239 Grounds for Cancellation of Union Registration (f) Entering into collective bargaining agreements which provide terms and conditions of employment below minmum standards established by law



Art 239 as amended Art 239. Grounds for Cancellation of Union Registration. The following may constitute grounds for cancellation of union registration: a. Misrepresentation, false statement or fraud in connection with the

adoption or ratification of the constitution and by-laws or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification;

b. Misrepresentation, false statement or fraud in connection with the adoption or ratification of the constitution and by-laws or amendments thereto, the minutes of ratification, and the list of member who took part in the ratification;

c. Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election officers, and the list of voters;

d. Voluntary dissolution of members.

c. Duration and Re-negotiation

Art 253-A. Terms of a collective bargaining agreement. Any Collective Bargaining Agreement that the parties may enter into shall, insofar as the representation aspect is concerned, be for a term of five (5) years. No petition questioning the majority status of the incumbent bargaining agent shall be entertained and no certification election shall be conducted by the Department of Labor and Employment outside of the sixty-day period immediately before the date of expiry of such five-year term of the Collective Bargaining Agreement. All other provisions of the Collective Bargaining Agreement shall be renegotiated not later than three (3) years after its execution. Any agreement on such other provisions of the Collective Bargaining Agreement entered into within six (6) months from the date of expiry of the term of such other provisions as fixed in such Collective Bargaining Agreement, shall retroact to the day immediately following such date. If any such agreement is entered into beyond six months, the parties shall agree on the duration of retroactivity thereof. In case of a deadlock in the renegotiation of the Collective Bargaining Agreement, the parties may exercise their rights under this Code. (As amended by Section 21, Republic Act No. 6715, March 21, 1989)

d. Grievance Procedure

Art 260. Grievance machinery and voluntary arbitration. The parties to a Collective Bargaining Agreement shall include therein provisions that will ensure the mutual observance of its terms and conditions. They shall establish a machinery for the adjustment and resolution of grievances arising from the interpretation or implementation of their Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies.

All grievances submitted to the grievance machinery which are not settled within seven (7) calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the Collective Bargaining Agreement.

For this purpose, parties to a Collective Bargaining Agreement shall name and designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators, or include in the agreement a procedure for the selection of such Voluntary Arbitrator or panel of Voluntary Arbitrators, preferably from the listing of qualified Voluntary Arbitrators duly accredited by the Board. In case the parties fail to select a Voluntary Arbitrator or panel of Voluntary Arbitrators, the Board shall designate the Voluntary Arbitrator or panel of Voluntary Arbitrators, as may be necessary, pursuant to the selection procedure agreed upon in the Collective Bargaining Agreement, which shall act with the same force and effect as if the Arbitrator or panel of Arbitrators has been selected by the parties as described above.

293. SA MIGUEL FOODS INC. CORP VS. SMC EMPLOYEES UNION – PTGWU (07) Whether or not the Union demands are valid; whether or not SanMig's contracts with Lipercon and D'Rite constitute "labor-only"

contracting and, therefore, a regular employer-employee relationship may, in fact, be said to exist; whether or not the Union can lawfully represent the workers of Lipercon and D'Rite in their demands against SanMig in the light of the existing CBA; whether or not the notice of strike was valid and the strike itself legal when it was allegedly instigated to compel the employer to hire strangers outside the working unit …all of these are issues the resolution of which call for the application of labor laws. Jurisdiction over such issues belongs to the labor tribunals. A labor dispute can nevertheless exist "regardless of whether the disputants stand in the proximate relationship of employer and employee" provided the controversy concerns, among others, the terms and conditions of employment or a "change" or "arrangement" thereof.

294. UNITED KIMBERLY-CLARK EMPLOYEES UNION VS. KIMBERLY-CLARK PHILS. INC. (06)

Management prerogative must be exercised in good faith for the advancement of the employer’s interest ad not for the purpose of defeating or circumventing the rights of the employees under special laws. valid agreements such as the individual contracts of employment and the CBA, and general principles of fair play. In this instance the management acted in accord with the CBA when they made employment guidelines to supplement the provisions of the CBA pursuant to a previous ruling of the SC that they were not obliged to unconditionally accept recommendees since these recommendees must still meet the required employment standard theretofore set the management.

295. LUZON DEVELOPMENT BANK VS. ASSOCIATION OF DEVELOPMENT BANK

EMPLOYEES (95) Parties to a CBA are required to include therein provisions for a machinery for the resolution of grievances arising from the interpretation or implementation of the CBA or company personnel policies. For this purpose, parties to a CBA shall name and designate therein a voluntary arbitrator or panel of arbitrators, or include a procedure for their selection, preferably from those accredited by the National Conciliation and Mediation Board (NCMB).

296. NAVARRO VS. DAMASO III (95) The acts of the petitioner (molesting a co-employee) in this case involved a violation of the Code of Employees discipline. Consequently there was no justification for the petitioner to invoke the grievance machinery provisions of the CBA. However, since the case of the petitioner was voluntarily submitted for voluntary arbitration by the union and the employer with the petitioner’s consent, the decision of the voluntary arbitrator (dismissal) was sustained.

297. SAN MIGUEL CORP VS. CONFESOR (96)

The CBA is a contract between the parties and they must respect the terms and conditions of the agreement. Notably, the framers of the law did not give a fixed term as to the effectivity of the terms and conditions of employment. It can be gleaned from their discussions that it was left to the parties to fix. Taking it from the history of their CBAs, SMC intended to have the terms of the CBA effective for three (3) years reckoned from the expiration of the old or previous CBA.

On the issue of representation, a Memorandum from the Secretary of Labor states that the parties, by mutual agreement may enter into a renegotiated contract with a term of three (3) years or one which does not coincide with the said five (5) year term, and if said agreement is ratified by majority of the members in the bargaining



unit, the subject contract is valid and legal therefore binds the parties.

298. GENERAL MILLING VS. COURT OF APPEALS (04), SUPRA

Art 253A of the LC mandates that the representation provision of a CBA should last five years. the relation between labor and management should be undisturbed until the last 60 days of the fifth year. Hence, it is undisputable that when the union requested for a renegotiation of the economic terms of the CBA it was still the certified collective bargaining agent of the workers because it was seeking said renegotiation within 5 years from the date of effectivity of the CBa. The union’s proposal was also submitted within the 3 year period from the date of the effectivity of the CBA. There was not valid reason for management to refuse to negotiate in good faith with the union.

3. Registration – Period, Requirements, and Action

Art. 231. Registry of unions and file of collective bargaining agreements. The Bureau shall keep a registry of legitimate labor organizations. The Bureau shall also maintain a file of all collective bargaining agreements and other related agreements and records of settlement of labor disputes and copies of orders and decisions of voluntary arbitrators. The file shall be open and accessible to interested parties under conditions prescribed by the Secretary of Labor and Employment, provided that no specific information submitted in confidence shall be disclosed unless authorized by the Secretary, or when it is at issue in any judicial litigation, or when public interest or national security so requires.

Within thirty (30) days from the execution of a Collective Bargaining Agreement, the parties shall submit copies of the same directly to the Bureau or the Regional Offices of the Department of Labor and Employment for registration, accompanied with verified proofs of its posting in two conspicuous places in the place of work and ratification by the majority of all the workers in the bargaining unit. The Bureau or Regional Offices shall act upon the application for registration of such Collective Bargaining Agreement within five (5) calendar days from receipt thereof. The Regional Offices shall furnish the Bureau with a copy of the Collective Bargaining Agreement within five (5) days from its submission.

The Bureau or Regional Office shall assess the employer for every Collective Bargaining Agreement a registration fee of not less than one thousand pesos (P1,000.00) or in any other amount as may be deemed appropriate and necessary by the Secretary of Labor and Employment for the effective and efficient administration of the Voluntary Arbitration Program. Any amount collected under this provision shall accrue to the Special Voluntary Arbitration Fund.

The Bureau shall also maintain a file and shall undertake or assist in the publication of all final decisions, orders and awards of the Secretary of Labor and Employment, Regional Directors and the Commission. (As amended by Section 15, Republic Act No. 6715, March 21, 1989)

4. Contract Beneficiaries - Beneficiaries

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

Any provision of law to the contrary notwithstanding, workers shall have the right, subject to such rules and regulations as the Secretary of Labor and Employment may promulgate, to participate in policy and decision-making processes of the establishment where they are employed insofar as said

processes will directly affect their rights, benefits and welfare. For this purpose, workers and employers may form labor-management councils: Provided, That the representatives of the workers in such labor-management councils shall be elected by at least the majority of all employees in said establishment. (As amended by Section 22, Republic Act No. 6715, March 21, 1989) Art 212 (f) "Employee" includes any person in the employ of an employer. The term shall not be limited to the employees of a particular employer, unless the Code so explicitly states. It shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent and regular employment.

299. PAL VS PALEA (08)

“Bargaining Unit”- all or less than all of the entire body of employees, which the collective interest of all the employees, with equity to the employer, indicates to be the best suited to serve the reciprocal rights and duties of the parties. Under the CBA the benefits extend to ALL employees in a collective bargaining unit, including those who do not belong to the chosen bargaining labor organization, hence including regular employees. Employees need only to be members of the bargaining unit. Non-regular employees are members of the bargaining unit.



7. CBA AND DISAFFILIATION-SUBSTITUTION DOCTRINE

300. ELISCO-ELIROL LABOR UNION V NORIEL80 SCRA 682TEEHANKEE;

DECEMBER 29, 1977

The union consisting of the members-employees of an employer is the principal party to the CBA (rather than the mother union which is merely its agent) and is therefore entitled to be recognized as the sole and exclusive bargaining representative entitled to administer and enforce the collective bargaining agreement with the employer.

Substitution Doctrine - even during the effectivity of a CBA executed between employer and employees thru their agent, the employees can change said agent but the contract continues to bind then up to its expiration date. They may bargain however for the shortening of said expiration date.

Justification for the doctrine - majority of the employees, as an entity under the statute, is the true party in interest to the contract, holding rights through the agency of the union representative. Thus, any exclusive interest claimed by the agent is defeasible at the will of the principal.

9. EFFECT EXPIRY

301. FACULTY ASSOCIATION OF MIT V. CA, 523 SCRA 709 (2007) Until a new CBA is executed by and between the parties, they are duty-bound to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement.

302. NEW PACIFIC TIMBER AND SUPPLY CO. INV. V NLRC (BUAT ET

AL.)328 SCRA 173KAPUNAN; MARCH 17, 2000

When a collective bargaining contract is entered into by the union representing the employees and the employer, even the non-member employees are entitled to the benefits of the contract.It must first be established whether a CBA was in effect during the time of the appeal.

A CBA, as to its economic provisions, can be extended beyond the period stipulated therein, and even beyond the three-year period prescribed by law, in the absence of a new agreement. Article 253 of the Labor Code explicitly provides:

ART. 253. Duty to bargain collectively when there exists a collective bargaining agreement. - When there is a collective bargaining agreement, the duty to bargain collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime. However, either party can serve a written notice to terminate or modify the agreement at least sixty (60) days prior to its expiration date. It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties.

Until a new Collective Bargaining Agreement has been executed by and between the parties, they are duty-bound to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement. In the case at bar, no new agreement was entered into by and between petitioner Pacific and NFL pending appeal of the decision in NLRC Case.

303. MANILA ELECTRIC CO. V QUISUMBING (MEWA)302 SCRA

173MARTINEZ; JAN.27, 1999

It was held that there is no sufficient legal ground on the justification for the retroactive application of the disputed CBA. The CBA should be effective for a term of 2 years. The 5-year term

requirement under Art.253-A is specific to the representation aspect.

What the law additionally requires is that a CBA must be re-negotiated within 3 years after its execution. If no agreement is reached within 6 months from the expiry date of the 3 years that follow the CBA execution, the law expressly gives the parties - not anybody else - the discretion to fix the effectivity of the agreement.

The law does not specifically cover the situation where no agreement has been reached with respect to the effectivity of the CBA within the 6 month period allowed. In this eventuality, any provision of law should then apply, for the law abhors a vacuum.

One such provision is the principle of hold over, i.e., that in the absence of a new CBA, the parties must maintain the status quo and must continue in full force and effect the terms and conditions of the existing agreement until a new agreement is reached. In this manner, the law prevents the existence of a gap in the relationship between the collective bargaining parties.

Another legal principle that should apply is that in the absence of an agreement between the parties, then, an arbitrated CBA takes on the nature of any judicial or quasi-judicial award; it operates and may be executed only respectively unless there are legal justifications for its retroactive application.

304. CITIZENS LABOR UNION-CCLU V CIR (MALAYANG

MANGGAGAWA SA ESSO, DEPT OF LABOR, ESSO)G.R. NO. L-24320, L-24421CASTRO, J.; NOVEMBER 12, 1966

It is a sound and unassailable labor practice for labor and management to conclude a new contract before the expiry date of any collective bargaining agreement in order to avoid a hiatus in management-labor relations.Against the presumption of continued majority status, however, is the rule that such majority status does not continue forever "especially in face of an assertion and offer of proof to the contrary", or "in view of altered circumstances which have likely occurred in the interim", or "by a change in the conditions which demonstrates that a shift in sentiment actually exists among the employees, and is caused by other factors than the employer's refusal to bargain collectively".

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