PRE-FINALS LECTURELABOR LAW REVIEWATTY. J. OSWALD B. LORENZOSecond Semester, A.Y. 2014-2015

If any union member/s violates the union security clause, particularly the close-shop provision, modified union-shop or union-shop provisions, or make an acts of membership and the like, it can be a ground for dismissal because the ground is disloyalty. There is no such thing as modified closed-shop.

Question: When the union recommends to management the dismissal of an employee/s (lets say EEs A,B and C) should management accord them due process (notice and hearing)?

Answer:

Yes. If management does not afford them due process, both the union and management would be liable for damages. But if due process was extended by management, only the union will be liable for damages.

Question: Where do you find the union security clauses? What is the new provision? Previously it was Art. 248.

Answer:

Art. 254.

Question: Is it a correct statement that union security clauses would be a form of valid discrimination?

Answer:

Question: Enumerate the different forms of union security clause.

Answer: Check Poquiz, (2012), p. 198

An agency shop is designed to cover non-union members who enjoy the benefits of the CBA and the purpose is to avoid free-riders. Thus, these non-union members will be assessed of what is known as an agency fee. Agency fee is equivalent to the union dues paid by union members.

Non-union members pay agency fee on the basis of an agency shop agreement.

There are only two instances where a written authorization may not be required. As a general rule, all deductions from the salaries and wages of union members should always be made pursuant to a written authorization known as check-off authorization. However, as exceptions, in cases of (a) deduction of an agency fee, and (b) deduction of yearly/annual mandatory activity, there is no need for a check-off authorization.

Scenario:Every year, the union will sponsor a trip to Boracay for the union members in order to explain to their members the state of the union. In this case, there is no need for a check-off authorization.

The Labor Code, as amended, provides for an automatic renewal clause so that there would be continuity and no chasm.

In cases where there is a unanimity of the decisions of the LA, the NLRC and the CA, when you go to the SC under Rule 45, after your Motion for Reconsideration has been denied by the CA, you can only raise questions of law. However in cases of variance of decisions of the LA, NLRC and CA, both questions of law and questions of fact may be raised before the SC.

CANCELLATION OF UNION REGISTRATION

Cancellation of union registration is filed with the Med-Arbiter, who holds office in the Med-Arbitration Branch located in the DOLE Regional Office.

The venue and jurisdiction in so far as unions are concerned; the Petition for Cancellation of Union Registration must be filed before the DOLE Regional Office of the place where the union operates. However, when individuals are involved or group of individuals of the union would like to file a case before the Regional Arbitration Branch of the NLRC, what determines the venue and jurisdiction would be their workplace.

If a Petition for Cancellation of Union Registration is now filed with the Med-Arbiter, and the Med-Arbiter cancels the union registration, you should appeal to the BLR. If BLR affirms Med-Arbiter, file an MR. If MR is likewise denied, you should appeal to the CA (Rule 65) within 60 days. If CA affirms BLR, file and MR. If MR is denied appeal to the SC under Rule 45 (Petition for Review on Certiorari).

However, in the case of Petition for Cancellation of Federation Registration this is filed with the BLR. Likewise a Petition for the Cancellation of Registration of Workers Association which operates in more than 1 region must also be filed before the BLR. If the BLR in the exercise of its original and exclusive jurisdiction cancels the registration of the federation, the next step would be to go before the Secretary of Labor. If Secretary of Labor affirms BLR, file an MR. If MR is denied, under Rule 65 you can go before the CA, then under the SC under rule 45.

Cases falling within the original and exclusive jurisdiction of the Med-Arbiter are appealable to the BLR. The BLR in this sense would be acting in its appellate capacity. Then you can go to the CA, and thereafter the SC.

In cases of cancellation of federation registration or the cancellation of the registration of workers association operating in more than 1 region, the BLR has original and exclusive jurisdiction. Thereafter, appeal can be made before the Secretary of Labor. Then you can go to the CA, and thereafter to the SC.

Scenario:

The registration of A Labor Union was cancelled by the Med-Arbiter today, can it still operate the next day as a union?

Yes, because the rule is that as long as the cancellation issued by the Med-Arbiter has not yet become final and executory, it shall continue to enjoy the rights and privileges of a legitimate labor organization conferred under Book 5 of the Labor Code, as amended. (Hugon Suyoc Mining Corporation Case)

Scenario:

After availing all possible remedies, the SC finally affirms the cancellation of the registration of the union, and now entered the same in its entries of judgment, can the union still operate the next day?

No. The decision has become final and executory. It will now be de-listed from the list of active unions in the BLR and as a result it can no longer enjoy Book5 rights and privileges.

GROUNDS FOR THE CANCELLATION OF UNION REGISTRATION [MEMORIZE ART. 245]

Now limited to only three grounds.The third ground is the voluntary dissolution by the members. The threshold needed is 2/3 of all members. Thus, with the higher threshold, it is more difficult to voluntarily cancel union registration. Previously, if you compare your book to the grounds before June 2007, a union entering into a kabo contracting arrangement supplies labor is a ground for the cancellation of union registration. This however is no longer a ground today. To enter into a sweetheart agreement was previously considered as a ground. This is no longer a ground today. These 2 grounds are deleted by virtue of RA 9481 which took effect on June 2007.

Another amendment brought by RA 9481 concerns Art. 251. This provision prohibits managerial employees from forming, joining or assisting in the formation of unions. This is also the same provision which allows supervisors to form a union of their own. What happens when there is a co-mingling or rank and file and supervisory employees in one union? Does it invalidate the labor organization? It does not. RA 9481 superseded the Doctrine of Separation of Unions. The case of Atlas Lithographic v. Lacuesta is no longer a good decision. In this case, the SC ruled that supervisory and rank-and-file employees cannot join the same federation. Today, by virtue of the amendments laid down by RA 9481, they can now separately join the same federation.

FORMATION OF AN INDEPENDENT UNION [ART. 240]

Before an independent union can file a verified Petition for Certification Election, it must comply with the requirements, especially the requirement with respect to the signature of 20% of all the employees of the bargaining unit. If it is in existence for one year or more, it is required to submit copies of its financial statements. Upon payment of the P50 registration fee, it shall be issued a Certificate of Registration.

You register a union with the DOLE Regional Office where the labor organization operates.

Before an independent union can file a verified Petition for Certification Election, it must first obtain a Certificate of Registration.

FORMATION OF A CHARTERED LOCAL [ART. 240-A]

Another innovation introduced by RA 9481 concerns a chartered local. In the case of a chartered local, the moment a duly registered federation issues a charter certificate of a chartered local it can now file a verified Petition for Certification Election; except when there exist bars or impediments to the Petition. It need not comply with the reporting requirements as of yet. For the purpose of filing a Petition for Certification Election, it can file the same immediately because it is already conferred with a personality separate and distinct from the federation. But, if said chartered local would want to enjoy Book 5 rights, it must comply and submit the reporting requirements. Upon compliance with the reporting requirements, said chartered local shall be issued a Certificate of Creation of a Chartered Local.

VARIOUS BARS TO A PETITION FOR CERTIFICATION ELECTION [BEDA NOTES, p. 120]

When these bars exist, a verified Petition for Certification Election may be deferred for the meantime, and it would not be acted upon by the Med-Arbiter.

1. Contract-Bar Rule [ART. 238]

While a valid and registered CBA exists for a fixed duration of 5 years is subsisting, the Med-Arbiter is not allowed to hold an election contesting the majority status of an incumbent union during the five-year term of the CBA, except during the 60-day period (Freedom Period) immediately prior to the expiration of the CBA.

When a labor union enters into a CBA with the employer, they should register the same so that it will become a registered and certified CBA. Thus, from the date of registration, up to the 61st day prior to the expiration of the CBA, no rival union can file a Petition for Certification Election shall be entertained by the Med-Arbiter because there exists a valid and certified CBA.This bar is designed in order to avoid union politicking and to promote stability in the company.

The contract referred to in the CONTRACT-BAR Rule is the CBA.

The rival union may file a verified Petition for Certification Election during the 60 day period immediately prior to the expiration of the CBA known as the Freedom Period.

If there are three unions in the company, A (majority union), B (minority union) and C (minority union), and B filed a Petition for Certification Election it must file the same within the last 60 days. By then the contract-bar rule no longer applies. However, there is another requirement. There must be appended consent signatures of 25% of the employees belonging to the bargaining unit (NOT based on the total union membership).

Two Requirements in filing for a Petition for Certification Election

1. The petition must be filed within the last 60 days immediately preceding the expiration of the CBA, otherwise known as the Freedom Period.2. Consent signatures of 25% of the employees belonging to the bargaining unit must be appended with the Petition.

Rule on Retraction of Signatures

When signatures are withdrawn before the Petition for Certification Election was filed before the Med-Arbiter, it shall be considered as a voluntary withdrawal of signature. It is considered as a voluntary withdrawal because at that point in time, the management does not know yet who among the employees affixed their signatures.

However, if the withdrawal occurred after the Petition was already filed with the Med-Arbiter, all withdrawals shall be deemed as involuntary withdrawals. This is so because at this point in time the management already knows the identities of those who affixed their signature, thus opening the possibility of management harassing the employees to withdraw their signatures.

Before filing VOLUNTARY WITHDRAWALAfter filing INVOLUNTARY WITHDRAWAL2. Dead-lock Bar Rule

As long as there is a dead-lock, no Petition for Certification Election can be entertained until the same is resolved. This is especially when dead-lock is accompanied by a valid notice of strike or notice of lock-out. (NACUSIT Case)

However, in the case of Kampil-Katipunan, the SC did not apply the Dead-lock Bar Rule because they feigned the existence of a dead-lock. The dead-lock must be genuine.

3. One Year Bar Rule

This is a situation where there are various contending unions and the option of No Union is provided for. Thus, in order to give meaning to this No Union choice for a period of one year reckoned from the date of the Final Certification Election Result, there will be no petition for certification election that will be entertained in the establishment.

Scenario:

The certification election was held on Jan. 5, 2015. From said period until Jan. 5, 2016, no Petition for Certification Election shall be entertained because of the One Year Bar Rule. If the election was held on Feb. 16, 2015, the same will be possible because the One Year Bar Rule no longer applies.4. Certification Year Bar

Certification election, voluntary recognition or run-off election are covered by the Certification Year Bar.

5. Consent Election Bar

This will operate as a bar against the filing of a Petition for Certification Election within a year from the holding of a Consent Election provided that there is an active intervention on the part of the Med-Arbiter. Without active intervention of the Med-Arbiter, this will not be considered as a bar.

Scenario:

Unions A, B and C operate in A Corporation which is an unorganized establishment. A Union filed a Petition for Certification Election before the Med-Arbiter in the DOLE Regional Office where the union operates. The Med-Arbiter tried to convince the members of A Union that instead of filing for a Petition for Certification Election, they would rather hold a Consent Election. A Union agreed. In the consent election, C Union won. In this case, the consent election would now be a bar against any Petition for Certification Election because there is an active intervention of the Med-Arbiter.

Scenario:

The officers of Unions X, Y and Z agreed upon themselves, while in a cocktail lounge, without any intervention from the Med-Arbiter, that instead of filing for a Petition for Certification Election, they would rather hold a Consent Election. X Union won. Y Union filed a verified Petition for Certification Election within a period of 1 year after the holding of the consent election. This is allowed because there was no active intervention of the Med-Arbiter.

6. Negotiation Year Bar

A Petition for Certification Election cannot be entertained if before the filing of the said petition, the duly recognized or certified union has commenced negotiations with the employer in accordance with Art. 256.

BARGAINING UNIT v. APPROPRIATE BARGAINING UNIT

Bargaining Unit

A group of employees of a given employer, comprised of all or less than all the entire body of employees, which, consistent with equity to the employer, indicate to be best suited to serve the reciprocal rights and duties of the parties under the collective bargaining provision of the law.

Appropriate Bargaining Unit

A group of employees of a given employer for collective bargaining purposes, have substantially mutual bargaining interests in terms and conditions of employment that can assure them of the exercise of their collective bargaining rights. (Belyea Corp. vs. Ferrer-Calleja)

Simply stated, it is a classification of jobs or positions where two or more employees possess common employment interests and conditions and which may be reasonably combined together for the purpose of collective bargaining. (Poquiz, 2012)

The SC ruled that a collective bargaining unit should only cover one company and not two or more. (Indophil Textile Mill vs. Galicia) FACTORS THAT DETERMINE THE APPROPRIATENESS OF A BARGAINING UNIT [POQUIZ, p. 235]

1. Globe Doctrine

There can be one, two or three bargaining units depending on the will or desire of the employees.

2. Community or mutuality of interests test

This is based on the case of U.P. v. Hon. Ferrer-Calleja. This is otherwise known as the Commonality of interest doctrine.

Question: Should there be two bargaining units of the rank-and-file unions, one for teaching personnel and one of non-teaching personnel? Or they should be under one bargaining unit only?

Answer: There must be two bargaining units. In the case of U.P. v. Hon. Ferrer-Calleja, the SC ruled that the test an asserted bargaining units acceptability is whether or not it is fundamentally the combination of which will best assure to all employees the exercise of their collective bargaining rights.

3. Prior collective bargaining history test

For example, Mercury Drug in the past maintained three separate unions (Luzon, Visayas and Mindanao) and they have their respective CBAs.

4. Similarity of employment status test

Question: What are the kinds of employment status?

Answer:

RegularSeasonalProbationary

5. Geographical location factor (Ateneo Notes)

This is similar to prior bargaining history.

Question: What do you think is the policy of the DOLE on Bargaining Units in one company?

Answer:

One-Union, One-Company Policy

Question: Do you think all 4 or 5 factor can or must be present in the determination of a single bargaining unit? Or the presence of 1 would be enough in the determination of the appropriateness of a bargaining unit?Answer:

Presence of one would suffice. Rarely would all these factors coincide.

DIFFERENCE BETWEEN A LABOR ARBITER AND A MED-ARBITER

An LA is a presidential appointee. A Med-Arbiter is not.

An LA may be chosen by the parties as a VA. However, when he is chosen by the parties, he will NOT be acting under his mandate under Art. 223 (a) (1)-(6). He will be acting in the mandate and capacity of a VA.

FUNCTIONS OF THE NCMB

The conciliation and mediation function of the BLR has been absorbed by the NCMB. This is also the agency that accredits voluntary arbitrators.Arellano University School of LawTaft Avenue, cor. Menlo St., Pasay City