unfair labor practices.doc

7/30/2019 UNFAIR LABOR PRACTICES.doc

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UNFAIR LABOR PRACTICES

ART. 247. CONCEPT OF UNFAIR LABOR PRACTICE AND PROCEDURE FORPROSECUTION THEREOF. UNFAIR LABOR PRACTICES VIOLATE THE

CONSTITUTIONAL RIGHT OF WORKERS AND EMPLOYEES TO SELF-

ORGANIZATION, ARE INIMICAL TO THE LEGITIMATE INTERESTS OF BOTHLABOR AND MANAGEMENT, INCLUDING THEIR RIGHT TO BARGAIN

COLLECTIVELY AND OTHERWISE DEAL WITH EACH OTHER IN AN

ATMOSPHERE OF FREEDOM AND MUTUAL RESPECT, DISRUPT INDUSTRIALPEACE AND HINDER THE PROMOTION OF HEALTHY AND STABLE LABOR-

MANAGEMENT RELATIONS.

CONSEQUENTLY, UNFAIR LABOR PRACTICES ARE NOT ONLY VIOLATIONSOF THE CIVIL RIGHTS OF BOTH LABOR AND MANAGEMENT BUT ARE ALSO

CRIMINAL OFFENSES AGAINST THE STATE WHICH SHALL BE SUBJECT TO

PROSECUTION AND PUNISHMENT AS HEREIN PROVIDED.

SUBJECT TO THE EXERCISE BY THE PRESIDENT OR BY THE SECRETARY OF

LABOR AND EMPLOYMENT OF THE POWERS VESTED IN THEM BYARTICLES 263 AND 264 OF THIS CODE, THE CIVIL ASPECTS OF ALL CASES

INVOLVING UNFAIR LABOR PRACTICES, WHICH MAY INCLUDE CLAIMS

FOR ACTUAL, MORAL, EXEMPLARY AND OTHER FORMS OF DAMAGES,ATTORNEYS FEES AND OTHER AFFIRMATIVE RELIEF, SHALL BE UNDER

THE JURISDICTION OF THE LABOR ARBITERS. THE LABOR ARBITERS

SHALL GIVE UTMOST PRIORITY TO THE HEARING AND RESOLUTION OF

ALL CASES INVOLVING UNFAIR LABOR PRACTICES. THEY SHALL RESOLVESUCH CASES WITHIN THIRTY (30) CALENDAR DAYS FROM THE TIME THEY

ARE SUBMITTED FOR DECISION.

RECOVERY OF CIVIL LIABILITY IN THE ADMINISTRATIVE PROCEEDINGS

SHALL BAR RECOVERY UNDER THE CIVIL CODE.

NO CRIMINAL PROSECUTION UNDER THIS TITLE MAY BE INSTITUTED

WITHOUT A FINAL JUDGMENT FINDING THAT AN UNFAIR LABOR

PRACTICE WAS COMMITTED, HAVING BEEN FIRST OBTAINED IN THE

PRECEDING PARAGRAPH. DURING THE PENDENCY OF SUCHADMINISTRATIVE PROCEEDING, THE RUNNING OF THE PERIOD OF

PRESCRIPTION OF THE CRIMINAL OFFENSE HEREIN PENALIZED SHALL BE

CONSIDERED INTERRUPTED: PROVIDED, HOWEVER, THAT THE FINALJUDGMENT IN THE ADMINISTRATIVE PROCEEDINGS SHALL NOT BE

BINDING IN THE CRIMINAL CASE NOR BE CONSIDERED AS EVIDENCE OF

GUILT BUT MERELY AS PROOF OF COMPLIANCE OF THE REQUIREMENTSTHEREIN SET FORTH. (AS AMENDED BY BATAS PAMBANSA BILANG 70,

MAY 1, 1980 AND LATER FURTHER AMENDED BY SECTION 19, REPUBLIC

ACT NO. 6715, MARCH 21, 1989)


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ELEMENTS [commission of ULP]:

Employment relationship

The act done is expressly defined in the Code as an act of ULP

Acts opposed to workers right to organize

PROSECUTION of ULP

- To prosecute ULP as CRIMINAL offense is not possible until after finality of

judgment in the labor case, finding that the respondent indeed committed ULP

- Only SUBSTANTIAL evidence is required in the labor case in the NLRC

- JURISDICTION: concurrent jurisdiction of the MTC or RTC

- PRESCRIPTION of OFFENSE: 1 year

UNFAIR LABOR PRACTICES OF EMPLOYERS

ART. 248. UNFAIR LABOR PRACTICES OF EMPLOYERS. IT SHALL BE

UNLAWFUL FOR AN EMPLOYER TO COMMIT ANY OF THE FOLLOWING

UNFAIR LABOR PRACTICE:

1) TO INTERFERE WITH, RESTRAIN OR COERCE EMPLOYEES IN THE

EXERCISE OF THEIR RIGHT TO SELF-ORGANIZATION;

2) TO REQUIRE AS A CONDITION OF EMPLOYMENT THAT A PERSON OR

AN EMPLOYEE SHALL NOT JOIN A LABOR ORGANIZATION OR SHALLWITHDRAW FROM ONE TO WHICH HE BELONGS;

3) TO CONTRACT OUT SERVICES OR FUNCTIONS BEING PERFORMED BY

UNION MEMBERS WHEN SUCH WILL INTERFERE WITH, RESTRAIN ORCOERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS TO SELF-

ORGANIZATION;

4) 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 ITSORGANIZERS OR SUPPORTERS;

5) TO DISCRIMINATE IN REGARD TO WAGES, HOURS OF WORK AND

OTHER TERMS AND CONDITIONS OF EMPLOYMENT IN ORDER TO


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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 RECOGNIZEDCOLLECTIVE 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 BARGAININGAGREEMENT. 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 DUESAND 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;

6) TO DISMISS, DISCHARGE OR OTHERWISE PREJUDICE ORDISCRIMINATE AGAINST AN EMPLOYEE FOR HAVING GIVEN OR BEING

ABOUT TO GIVE TESTIMONY UNDER THIS CODE;

7) TO VIOLATE THE DUTY TO BARGAIN COLLECTIVELY AS PRESCRIBED

BY THIS CODE;

8) TO PAY NEGOTIATION OR ATTORNEYS FEES TO THE UNION OR ITS

OFFICERS OR AGENTS AS PART OF THE SETTLEMENT OF ANY ISSUE IN

COLLECTIVE BARGAINING OR ANY OTHER DISPUTE; OR

9) TO VIOLATE A COLLECTIVE BARGAINING AGREEMENT. THE

PROVISIONS OF THE PRECEDING PARAGRAPH NOTWITHSTANDING, ONLYTHE OFFICERS AND AGENTS OF CORPORATIONS, ASSOCIATIONS OR

PARTNERSHIPS WHO HAVE ACTUALLY PARTICIPATED IN, AUTHORIZED OR

RATIFIED UNFAIR LABOR PRACTICES SHALL BE HELD CRIMINALLYLIABLE. (AS AMENDED BY BATAS PAMBANSA BILANG 130, AUGUST 21,

1981)

CONDITIONS PRESEDENT to ULP CHARGE

Injured party comes within the definition of employee

The act charged as ULP must fall under the prohibitions of Art. 248 (ACTS OF

EMPLOYER) OR Art. 249 (acts of the union)


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BY: Gang Casio

UNFAIR LABOR PRACTICES of EMPLOYERS

Unlawful acts or acts of ULP

1. interference. to interfere with the right of self-organization of employees

Lockout = ULP when it is used as a means of dissuading the employees from exercising

their rights under this act

TEST of Employers Remarks: TOTALITY OF CONDUCT DOCTRINE. The

culpability of employers remarks have to be evaluated not only on the basis of their

implications, but against the background of and in conjunction with collateralcircumstances.

Test of Interference whether the employer has engaged in conduct which it may be

reasonably be said tends to intefere with the free exercise of employees right.

2. yellow dog condition. to require as a condition of employment, that a personshould not join a labor organizations or shall withdraw therefrom

Yellow Dog Contract; Badges

1) a representation by the employee that he is not a member of a labor union

2) a promise by the employee not to join a labor union

3) a promise by the employee that, upon joining a labor union, he will quit his

employment


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3. contracting out. to contract-out functions performed by union members in order to

interfere with their right of self-organization

Requisites for Valid Contracting Out

1) made in good faith

2) the contracting out must not have been resorted to, to circumvent the law

3) must not have been the result of malicious or arbitrary action

RUNAWAY shop = ULP. An industrial plant moved by its owners from one location to

another to escape union labor regulations or state laws.

Constructive Discharge when the employer prohibits employees from exercising their

rights under the act, on pain of discharge, and the employee quits as a result of theprohibition, a constructive discharge occurs.

4. company unionism. support a union in a multi-union establishment. May be

manifested in the following manner:

1) initiation of the company union idea

2) financial support to the union

3) employer encouragement and assistance

4) supervisory assistance

5. discrimination for or against union membership. discriminate union membership.

Union Security Clause is valid.

Mass Layoff = ULP when only union members were laid off and there is no economic

reason to do so.


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Sale of Business = ULP if made in bad faith and used only to get rid of the employees

who were members of the Union. If the buyer makes substantial

NONDISCRIMINATORY personnel changes and changes in the operational structure ofthe business, he is not a successor employer and need not bargain with the incumbent

union and the dismissal does not constitute ULP

Principal Elements: the discrimination committed by the employer must be in regard to

the hire or tenure of employment or any term or condition of employment to encourage ordiscourage membership in any labor organization.

Discrimination by Blacklisting. Blacklist is a list of persons marked out for special

avoidance, antagonism or enmity on the part of those who prepare the list, or thoseamong whom it is intended to circulate

Indirect Discrimination Present in the Following Events:

1) the dismissal of a laborer on account of union activities of his brother

2) the discharge of an employee due to the union activities of his wife

3) the discharge of wife due to the union activities of the husband

Union Security Clause; Kinds

1) Closed Shop only union members can be hired by the company and they must

remain as such to retain employment in the company EXCEPT

a. any employee who is a member of religious organization which prohibits its

members from joining labor unions

b. employee already in a service and already a member of another union

c. confidential employees who are excluded from the rank and file bargaining unit


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d. employees excluded from the closed shop by express terms of the agreement

2) Union Shop nonmembers may be hired but to retain employment must becomeunion members after a certain period

3) Modified Union Shop employees who are not union members at the time of signingthe contract need not join the union, but all workers hired thereafter must join

4) Maintenance of membership shop no employee is compelled to join the union, butall present or future members must, as a condition of employment, remain in good

standing in the union

5) Exclusive Bargaining Shop the union is recognized as the exclusive bargainingagent for all employees in the bargaining unit, whether union members or not

6) Bargaining for members only the union is recognized as the bargaining agent only

for its own member

7) Agency shop an agreement whereby employees must either join the union or pay tothe union as exclusive bargaining agent a sum equal to that paid by the members.

Agency Fee no authorization is required based on the doctrine of quasi-contract

6. because of testimony. dismiss or discriminate an employee for having given orbeing about to give testimony under this code

7. violates the duty to bargain or Bargaining with the Minority Union constitutesULP as a refusal to collectively bargain

Situations when the duty to Bargain Exists

a) the duty to bargain means in essence the mutual obligation to meet and convene for thepurpose of:

b) to negotiate an agreement of mandatory subjects like: 1wages, 2hours of work and3all other terms and conditions of employment including for adjusting grievances or

questions arising under such agreement

c) to execute a contract incorporating such agreement if requested by either party

d) the obligation not to terminate or modify the CBA during its lifetime


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Forms of Violation of the Duty to Bargain

1) failure or refusal to meet and convene to bargain in good faith, an employer must

not only meet and confer with the union which represents his employees, but also mustrecognize the union for the purpose of collective bargaining agreement

2) evading the mandatory subjects of bargaining

1. wages and other types of compensation including merit increases

2. working hours and working days, including work shifts

3. vacations and holidays

4. bonuses

5. pensions and retirement plans

6. seniority

7. transfer

8. lay-offs

9. employee workloads

10. work rules and regulations

11. rent of company houses

12. union security agreement

3) bad faith in bargaining including refusal to execute a Collective BargainingAgreement, if requested

Good Faith Bargaining demands more than sterile and repetitive discussion of

formalities precluding actual negotiation, more than formal replies which constitute in


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effect a refusal to treat with the union and more than a willingness to enter upon a sterile

discussion of union-management differences

Badges of Bad Faith Bargaining

i. when the employer fails to vest its negotiators with sufficient

authority to make agreement

ii. when after 1 month of submittal of Unions proposal, the employer

has not made any counter proposal

iii. Surface Bargaining a sophisticated pretense in the form of

apparent bargaining

iv. Inflexible bargaining by the union

v. Boulwarism or the take-it-or-leave-it bargaining

vi. Refusal to furnish, upon request, financial information of the

company

4) gross violation of CBA [flagrant]s

Deadlock or Impasse presupposes a reasonable effort at good-faith bargaining which,

despite noble intentions, does not conclude in an agreement between the parties. A

deadlock does not mean an end of bargaining. It signals rather the need to seekassistance of a 3rd party.

Duty to Bargain and Sale of Business: if there is a substantial and material alteration in

the employing enterprise, the new employer need not bargain with the incumbent union.

If there is none, the new employer needs to bargain with the incumbent union.

Factors to determine Substantial Continuity of the Operation

a) the new employer uses the same plant


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b) he has the same or substantially the same workforce

c) the same jobs exist under the same working conditions

d) he employs the same supervisors

e) he uses the same machinery, equipment and methods

NOTE: an employer does not violate the duty to bargain when

a) the denial of the proposal is due to economic losses as long as the employer

continues to negotiate

b) adoption of an adamant bargaining position in good faith

c) refusal to bargain over demands for commission of ULP

d) refusal to bargain during period of illegal strike

8. paid negotiation. to pay negotiation or attorneys fees to the union as part of the

settlement

9. GROSSLY violate the CBA. Must be gross and flagrant according to Art. 261

Criminal Liability: only officers and agents who have actually participated in, authorized

or ratified ULP

REMEDIES IN ULP CASES

1. Cease and Desist Order issued by the RTC

2. mandatory injunction

3. disestablishment of company union


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4. ULP is not subject to compromise

UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS

ART. 249. UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS. IT

SHALL BE UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION, ITSOFFICERS, AGENTS OR REPRESENTATIVES:

1) 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 TOTHE ACQUISITION OR RETENTION OF MEMBERSHIP;

2) TO CAUSE OR ATTEMPT TO CAUSE AN EMPLOYER TO DISCRIMINATE

AGAINST AN EMPLOYEE, INCLUDING DISCRIMINATION AGAINST ANEMPLOYEE WITH RESPECT TO WHOM MEMBERSHIP IN SUCH

ORGANIZATION HAS BEEN DENIED OR TO TERMINATE AN EMPLOYEE ONANY GROUND OTHER THAN THE USUAL TERMS AND CONDITIONS UNDER

WHICH MEMBERSHIP OR CONTINUATION OF MEMBERSHIP IS MADE

AVAILABLE TO OTHER MEMBERS;

3) TO VIOLATE THE DUTY, OR REFUSE TO BARGAIN COLLECTIVELY

WITH THE EMPLOYER, PROVIDED IT IS THE REPRESENTATIVE OF THE

EMPLOYEES;

4) TO CAUSE OR ATTEMPT TO CAUSE AN EMPLOYER TO PAY OR

DELIVER OR AGREE TO PAY OR DELIVER ANY MONEY OR OTHER THINGSOF VALUE, IN THE NATURE OF AN EXACTION, FOR SERVICES WHICH ARE

NOT PERFORMED OR NOT TO BE PERFORMED, INCLUDING THE DEMAND

FOR FEE FOR UNION NEGOTIATIONS;

5) TO ASK FOR OR ACCEPT NEGOTIATION OR ATTORNEYS FEES FROM

EMPLOYERS AS PART OF THE SETTLEMENT OF ANY ISSUE IN COLLECTIVE

BARGAINING OR ANY OTHER DISPUTE; OR

6) TO VIOLATE A COLLECTIVE BARGAINING AGREEMENT.

THE PROVISIONS OF THE PRECEDING PARAGRAPH NOTWITHSTANDING,ONLY THE OFFICERS, MEMBERS OF GOVERNING BOARDS,

REPRESENTATIVES OR AGENTS OR MEMBERS OF LABOR ASSOCIATIONS

OR ORGANIZATIONS WHO HAVE ACTUALLY PARTICIPATED IN,

AUTHORIZED OR RATIFIED UNFAIR LABOR PRACTICES SHALL BE HELD


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CRIMINALLY LIABLE. (AS AMENDED BY BATAS PAMBANSA BILANG 130,

AUGUST 21, 1981)

UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS

Featherbedding name given to employee practices which create or spread employment

by unnecessarily maintaining or increasing the number of employees used, or theamount of time consumed to work on a particular job.

1. to ask for or accept negotiations or attorneys fees from employers as part of the

settlement

2. to violate the CBA

STRIKES AND LOCKOUTS

ART. 263. STRIKES, PICKETING AND LOCKOUTS.

a. IT IS THE POLICY OF THE STATE TO ENCOURAGE FREE TRADE

UNIONISM AND FREE COLLECTIVE BARGAINING.

b. WORKERS SHALL HAVE THE RIGHT TO ENGAGE IN CONCERTED

ACTIVITIES FOR PURPOSES OF COLLECTIVE BARGAINING OR FOR THEIR

MUTUAL BENEFIT AND PROTECTION. THE RIGHT OF LEGITIMATE LABORORGANIZATIONS TO STRIKE AND PICKET AND OF EMPLOYERS TO

LOCKOUT, CONSISTENT WITH THE NATIONAL INTEREST, SHALL CONTINUE

TO BE RECOGNIZED AND RESPECTED. HOWEVER, NO LABOR UNION MAY

STRIKE AND NO EMPLOYER MAY DECLARE A LOCKOUT ON GROUNDSINVOLVING INTER-UNION AND INTRA-UNION DISPUTES.

c. IN CASE OF BARGAINING DEADLOCKS, THE DULY CERTIFIED ORRECOGNIZED BARGAINING AGENT MAY FILE A NOTICE OF STRIKE OR THE

EMPLOYER MAY FILE A NOTICE OF LOCKOUT WITH THE MINISTRY AT

LEAST 30 DAY BEFORE THE INTENDED DATE THEREOF. IN CASES OFUNFAIR LABOR PRACTICE, THE PERIOD OF NOTICE SHALL BE 15 DAYS AND

IN THE ABSENCE OF A DULY CERTIFIED OR RECOGNIZED BARGAINING

AGENT, THE NOTICE OF STRIKE MAY BE FILED BY ANY LEGITIMATE

LABOR ORGANIZATION IN BEHALF OF ITS MEMBERS. HOWEVER, IN CASE


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OF DISMISSAL FROM EMPLOYMENT OF UNION OFFICERS DULY ELECTED

IN ACCORDANCE WITH THE UNION CONSTITUTION AND BY-LAWS, WHICH

MAY CONSTITUTE UNION BUSTING, WHERE THE EXISTENCE OF THE UNIONIS THREATENED, THE 15-DAY COOLING-OFF PERIOD SHALL NOT APPLY

AND THE UNION MAY TAKE ACTION IMMEDIATELY. (AS AMENDED BY

EXECUTIVE ORDER NO. 111, DECEMBER 24, 1986)

d. THE NOTICE MUST BE IN ACCORDANCE WITH SUCH IMPLEMENTING

RULES AND REGULATIONS AS THE MINISTER OF LABOR ANDEMPLOYMENT MAY PROMULGATE.

e.DURING THE COOLING-OFF PERIOD, IT SHALL BE THE DUTY OF THE

MINISTRY TO EXERT ALL EFFORTS AT MEDIATION AND CONCILIATION TOEFFECT A VOLUNTARY SETTLEMENT. SHOULD THE DISPUTE REMAIN

UNSETTLED UNTIL THE LAPSE OF THE REQUISITE NUMBER OF DAYS FROM

THE MANDATORY FILING OF THE NOTICE, THE LABOR UNION MAY STRIKE

OR THE EMPLOYER MAY DECLARE A LOCKOUT.

f. A DECISION TO DECLARE A STRIKE MUST BE APPROVED BY AMAJORITY OF THE TOTAL UNION MEMBERSHIP IN THE BARGAINING UNIT

CONCERNED, OBTAINED BY SECRET BALLOT IN MEETINGS OR REFERENDA

CALLED FOR THAT PURPOSE. A DECISION TO DECLARE A LOCKOUT MUSTBE APPROVED BY A MAJORITY OF THE BOARD OF DIRECTORS OF THE

CORPORATION OR ASSOCIATION OR OF THE PARTNERS IN A PARTNERSHIP,

OBTAINED BY SECRET BALLOT IN A MEETING CALLED FOR THAT

PURPOSE. THE DECISION SHALL BE VALID FOR THE DURATION OF THEDISPUTE BASED ON SUBSTANTIALLY THE SAME GROUNDS CONSIDERED

WHEN THE STRIKE OR LOCKOUT VOTE WAS TAKEN. THE MINISTRY MAY,

AT ITS OWN INITIATIVE OR UPON THE REQUEST OF ANY AFFECTED PARTY,SUPERVISE THE CONDUCT OF THE SECRET BALLOTING. IN EVERY CASE,

THE UNION OR THE EMPLOYER SHALL FURNISH THE MINISTRY THE

RESULTS OF THE VOTING AT LEAST SEVEN DAYS BEFORE THE INTENDEDSTRIKE OR LOCKOUT, SUBJECT TO THE COOLING-OFF PERIOD HEREIN

PROVIDED. (AS AMENDED BY BATAS PAMBANSA BILANG 130, AUGUST 21,

1981 AND FURTHER AMENDED BY EXECUTIVE ORDER NO. 111, DECEMBER

24, 1986)

g. WHEN, IN HIS OPINION, THERE EXISTS A LABOR DISPUTE CAUSING OR

LIKELY TO CAUSE A STRIKE OR LOCKOUT IN AN INDUSTRYINDISPENSABLE 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 COMPULSORYARBITRATION. 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


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OF ASSUMPTION OR CERTIFICATION, ALL STRIKING OR LOCKED OUT

EMPLOYEES SHALL IMMEDIATELY RETURN-TO-WORK AND THE

EMPLOYER SHALL IMMEDIATELY RESUME OPERATIONS AND READMITALL 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 LAWENFORCEMENT 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, ANDALL SERIOUS EFFORTS, NOT ONLY BY LABOR AND MANAGEMENT BUT

GOVERNMENT AS WELL, BE EXHAUSTED TO SUBSTANTIALLY MINIMIZE, IFNOT 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 LABORDISPUTES 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 ANDOTHER 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 OFITS 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 ARESTRICTLY 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 IMMEDIATEDISCIPLINARY ACTION, INCLUDING DISMISSAL OR LOSS OF EMPLOYMENT

STATUS OR PAYMENT BY THE LOCKING-OUT EMPLOYER OF BACKWAGES,

DAMAGES AND OTHER AFFIRMATIVE RELIEF, EVEN CRIMINALPROSECUTION AGAINST EITHER OR BOTH OF THEM.


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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, ANDFROM INTERVENING AT ANY TIME AND ASSUMING JURISDICTION OVER

ANY SUCH LABOR DISPUTE IN ORDER TO SETTLE OR TERMINATE THE

SAME.

h. BEFORE OR AT ANY STAGE OF THE COMPULSORY ARBITRATION

PROCESS, THE PARTIES MAY OPT TO SUBMIT THEIR DISPUTE TOVOLUNTARY ARBITRATION.

i. THE SECRETARY OF LABOR AND EMPLOYMENT, THE COMMISSIONOR THE VOLUNTARY ARBITRATOR SHALL DECIDE OR RESOLVE THE

DISPUTE, AS THE CASE MAY BE. THE DECISION OF THE PRESIDENT, THE

SECRETARY OF LABOR AND EMPLOYMENT, THE COMMISSION OR THE

VOLUNTARY ARBITRATOR SHALL BE FINAL AND EXECUTORY TEN (10)CALENDAR DAYS AFTER RECEIPT THEREOF BY THE PARTIES. (AS

AMENDED BY SECTION 27, REPUBLIC ACT NO. 6715, MARCH 21, 1989)

STRIKE

STRIKE a cessation of work by employees in an effort to get more favorable terms for

themselves, or as a concerted refusal by employees to do any work for their employer, orto work at their customary rate of speed, until the object of the strike is attained by the

employers granting the demanded concession

Strike Area the 1establishment, 2warehouses, 3depots, 4plants, 5offices, 6including thesites or premises used as runaway shops of the employer, 7as 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

Characteristics of a Strike

1. there is established relationship between the strikers and the person(s) against

whom the strike is called

2. the relationship must be one of employer and employee


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3. the existence of a dispute between the parties and the utilization by labor of the

weapon of concerted refusal to work as a means of persuading, or coercing compliance

with the working mens demands

4. the contention advanced by the workers that although work ceases, the employment

relation is deemed to continue albeit in a state of belligerent suspension

5. there is work stoppage, which stoppage is temporary

6. the work stoppage is done through concerted action of the employees

The STRIKING GROUP IS A LLO and, in case of bargaining deadlock, is the

employees sole bargaining representative

LOCK OUT

the temporary refusal of an employer to furnish work as a result of an industrial or labordispute; an employers act excluding employees who are union members form his plant

Requisites of Lock-Out

1. notice of intention to declare a strike/lockout has been filed with the DOLE

2. at least 30 days has elapsed since the filing of the notice before the lockout isdeclared

3. an impasse has resulted in the negotiations; Other Grounds:

a. in anticipation of a threatened strike, where motivated by economic considerations

b. in response to unprotected strike or walkout

c. in response to a whipsaw strike

4. the strike/lockout is not discriminatory

Kinds of Strikes

1. General Strike extends over a whole community, province, state or country

2. Local Strike one undertaken by workers in a particular enterprise, locality or

occupation


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3. Sit-Down Strike when a group of employees or other interest in obtaining a

certain objective in a particular business forcibly take over possession of the property ofsuch business, established themselves within the plant, stop its production and refuse

access to the owners or to the others desiring to work.

4. Slowdown a willful reduction in the rate of work by a group of employees for the

purpose of restricting the output of the employer (illegal strike)

5. partial strike / quickie strike intermittent unannounced work stoppage, including

slowdowns, unauthorized extension of rest periods, and walkouts for portions of a shift or

for entire shifts (illegal strike)

6. primary strike one declared by the employees who have a direct and immediate

interest, whether economic or otherwise, in the subject of the dispute, which exists

between them and their employer

7. secondary strike refers to a coercive measure adopted by workers against an

employer connected by product or employment with alleged ULP

8. ECONOMIC STRIKE intended to force wage and other concessions from the

employer which he is not required by law to grant

9. ULP STRIKE called against ULP of the employer usually for the purpose of

making him desist from further committing such practices

Strike / Lockout may legally be held because of either or both

1. There must be a Labor Dispute includes any controversy or matter concerning

terms and conditions of employment or the association or representation of persons innegotiating, fixing, maintaining, changing or arranging the terms and conditions of

employment, regardless of whether the disputants stand in the proximate relations of

employer and employee

2. the Grounds must be

a) a CBA deadlock (economic)

b) an ULP act of the employer/union

NOTE:


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1. NO UNION may Strike nor Employer declare a lockout on grounds involving inter-

union and intra-union disputes

2. 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

Illegal Strikes

1. sympathetic strike

2. welga ng bayan

3. Legality in Strikes: until all the remedies and negotiations looking toward the

adjustment or settlement of labor disputes have been exhausted, the law does not look

with favor upon resort to radical measures, the pernicious consequences of whichtranscend the rights of the immediate parties.

Protection to the right to Strike

1. it is generally not subject to labor injunction or restraining order

2. employees may not be discriminated against merely because they have exercisedthe right to strike

3. the use of strike-breakers is prohibited

Strike-Breaker any person who obstructs, impedes, or interferes with by force, violence,

coercion, threats or intimidation any peaceful picketing by employees during any laborcontroversy affecting

a. Wages, hours or conditions of work

b. in the exercise of the right of self-organization or Collective Bargaining

4. mere participation in a strike does not sever the employment relationship


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Striking Employees may advice or persuade others to quit work and join in the strike,

so long as contractual rights are not invaded and that they may advice and persuade

others not to engage their services to the employer against whom the strike is directed

STATUS OF STRIKERS

The relationship existing between employer and employee is not necessarily terminatedby a strike BUT is not entitled to Wage during the strike PROVIDED THAT

a) the strike is in connection to a current labor dispute

b) where the strike is the result of ULP

Obligation of the Employer during a legal strike

a) the employers obligation to bargain collectively in good faith with his employees

continues notwithstanding the fact that the employees are on strike

b) the employer is under an obligation to reinstate striking employees upon

termination of the strike, without discriminating against those more actively engaged in

union activities

Characteristics of an Illegal Strike

1. is contrary to specific prohibition of law

a) Government Employees may not Strike their redress is to petition the congress for

the betterment of the terms and conditions of employment OR may do so in their FREE

TIME

b) Strike must be done only after exhaustion of the Grievance Procedure and After

Arbitration

2. violates specific requirement of law

a) Notice of Strike Notice in the prescribed form filed with the NCMB (DOLE) bythe LLO. (individual notices to strike did not conform with the notice rule)

b) Decision to declare a Strike (Strike Vote) must be approved by a Majority of the

Total UNION membership in the bargaining unit concerned.


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Decision to declare a Lockout must be approved by a majority of the board of directors of

the corporation

Strike Vote Report. The result of the Vote must be submitted to the Minister of Labor

within 7 days from the date of voting before the cooling-off period commences. (a strike

without SVR is illegal)

c) Cooling-off Period

Cause of Strike

Cool-off Period

Economic Grounds / Bargaining Deadlock

30 days

ULP Cases

15 days

Union Busting

No cool-off period

Union Busting dismissal from employment of union officers duly elected where the

existence of the union is threatened

Elements of Union Busting

a) the union officers are being dismissed

b) those officers are the only duly elected in accordance with the union constitution

and by-laws

c) the existence of the union is threatened


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3. is declared for an unlawful purpose, such as inducing the employer to commit an

ULP against non-union employees

Lawful Purpose of the Strike

a) Collective Bargaining Deadlock the situation between the labor and themanagement of the company where there is failure in the collective bargaining

negotiations resulting in a stalemate

b) ULP by Employer Test in determining the existence of ULP

1) objectively, when the strike is declared in protest of ULP which is found to have

been actually committed

2) subjectively, when a strike is declared in protest of what the union believed to be

ULP committed by management, and the circumstances warranted such belief in good

faith, although found subsequently as not committed (Good Faith Strike). This furtherpresupposes that the procedural requirements have been complied.

b) Union Recognition Strike - to Compel Recognition of and Bargaining with the

Majority Union is VALID. However if there is a strike for union recognition without

having proven majority status, it is INVALID.

Conversion Doctrine what had begun as a strike over bargaining demands became anULP when it prolonged by the unions vote to protest the employers outright termination

of strikers seeking re-instatement

Non-Strikeable Issues

1. Physical rearrangement of office

2. companys sales evaluation policy

3. salary distortion under the Wage Rationalization Act

4. employs unlawful means in the pursuit of its objective

a) Picketing; No person engaged in picketing shall

1) Commit any act of violence, coercion or intimidation


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2) obstruct the free ingress to or egress from the employers premises for lawful

purposes

3) obstruct public thorough fares

b) Use of Violence, Force or Threat to pursue labor rights

5. is declared in violation of an existing injunction

a) Strike During Arbitration Illegal

b) Strike During Mediation illegal

c) Strike in violation of a Court Order Illegal

National Interest Cases Automatic Injunction and Return-to-work Order. The President

and the Secretary of Labor shall determine which cases are considered of NationalInterest and shall assume jurisdiction. (e.g. Banking, Electric Company, etc.)

a) Assumption of Jurisdiction does not require prior notice to the parties. Necessarily,

the authority to assume jurisdiction over the said labor dispute must include and extend toall questions and controversies arising therefrom, including cases over which the labor

arbiter has exclusive jurisdiction (Interphil Lab Union v. Interphil Inc)

b) A national interest dispute may be certified to the NLRC even before a strike isdeclared as long as there is an industrial dispute

c) The issuance of an Assumption or Certification Orders which are executory in

character are to be strictly complied with by the parties. Once an assumption/certification

order is issued, strikes are enjoined, or if one has already taken place, all strikers shallimmediately return to work. (48 hours maximum). It is immediately executory.

d) Defiance of a RTWO is a ground for loss of the employment status of any striking

union officer or member. The moment a worker defies a RTWO, he is deemed to have

abandoned his job; ABAONDONMENT; Requisites:


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1) The absence of just and valid cause

2) there is an intention to abandon or defy

3) some overt act from which it may be inferred that the employee has no moreinterest in working

e) Voluntary Return to Work when the officers returned back to work after the

strike, such return did not imply the waiver of the original demands

f) Appeal in cases of Assumption of Jurisdiction.May be appealed to the CA through

certiorari. Example of Grave Abuse of Discretion: when the Secretary imposed a

stipulation which even the union did not ask for.

6. is contrary to an existing agreement, such as a no-strike clause or conclusive

arbitration clause.

Note:

a) Agreement not to strike is only applicable to economic strikes and NOT to ULP

strikes.

b) A no-strike clause is binding not only upon the union, but also upon its individual

members

PICKETING AND OTHER CONCERTED ACTIONS

Picketing involves the presence of striking workers or their union brothers who pace back

and forth before the place of business of an employer considered unfair to organized

labor, in the hope of being able to persuade peacefully other workers not to work in theestablishment and customers not to do business there.

a) Picket without strike Valid.


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b) Picketing at Home the picketing of a private home in a residential district is

generally held improper even when the pickets are domestic servants

c) Picketing must be peaceful

Other Concerted Activities

1. Collective letter

2. publicity

3. placards and banners

4. speeches, music and broadcasts

BOYCOTT a combination to harm one person by coercing others to harm him that is,

a combination of many to cause a loss to one person by causing others, against their will,

to withdraw from him their beneficial business intercourse through threats that unlessothers do so, the many will cause similar loss to him or then.

Kinds of Boycott

1. Primary Boycott applied directly and alone to the offending person bywithdrawing from him all business relations on the part of the organization that initiated

the boycott

2. Secondary Boycott a combination not merely to refrain from dealing with a

person, or to advice or by peaceable means persuade his customers to refrain, but to

exercise coercive pressure upon such customers, actual or prospective, in order to cause

them to withhold or withdraw patronage from him through fear of less or damage tothemselves should they deal with him

Factors to be Considered to Determine the Lawfulness of a Boycott

a) the means and methods employed - only a boycott that is free from violence or

malevolence is held to be lawful

b) the ends intended to be accomplished


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1. illegal when its purpose is to require the employer to coerce his employees to pay

their back dues to the union

2. to compel the payment by an employee of a fine or other penalties

3. to compel an employee to refrain from working

4. to compel employment of more help than is necessary

5. to compel one to sign a contract

6. to compel an employer to refrain from issuing new process or machinery

Liability incase of Illegal Boycott: the person as well as all those who have combinedagainst him is liable PROVIDED there is a causal connection between the acts

complained of and the damage suffered

ART. 264. PROHIBITED ACTIVITIES.

a. NO LABOR ORGANIZATION OR EMPLOYER SHALL DECLARE A STRIKE

OR LOCKOUT WITHOUT FIRST HAVING BARGAINED COLLECTIVELY INACCORDANCE 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 BEENOBTAINED AND REPORTED TO THE MINISTRY.

NO STRIKE OR LOCKOUT SHALL BE DECLARED AFTER ASSUMPTION OFJURISDICTION 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 TOREINSTATEMENT 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 OFILLEGAL 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


26/82

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 INTHE 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, NORSHALL 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 OROTHER 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 EMPLOYERS PREMISES FOR LAWFUL PURPOSES,

OR OBSTRUCT PUBLIC THOROUGHFARES. (AS AMENDED BY BATASPAMBANSA BILANG 227, JUNE 1, 1982)

ART. 265. IMPROVED OFFER BALLOTING. IN AN EFFORT TO SETTLE A

STRIKE, THE DEPARTMENT OF LABOR AND EMPLOYMENT SHALLCONDUCT A REFERENDUM BY SECRET BALLOT ON THE IMPROVED OFFER

OF THE EMPLOYER ON OR BEFORE THE 30TH DAY OF THE STRIKE. WHEN

AT LEAST A MAJORITY OF THE UNION MEMBERS VOTE TO ACCEPT THE

IMPROVED OFFER THE STRIKING WORKERS SHALL IMMEDIATELY RETURN


27/82

TO WORK AND THE EMPLOYER SHALL THEREUPON READMIT THEM UPON

THE SIGNING OF THE AGREEMENT.

IN CASE OF A LOCKOUT, THE DEPARTMENT OF LABOR AND EMPLOYMENT

SHALL ALSO CONDUCT A REFERENDUM BY SECRET BALLOTING ON THE

REDUCED OFFER OF THE UNION ON OR BEFORE THE 30TH DAY OF THELOCKOUT. WHEN AT LEAST A MAJORITY OF THE BOARD OF DIRECTORS OR

TRUSTEES OR THE PARTNERS HOLDING THE CONTROLLING INTEREST IN

THE CASE OF A PARTNERSHIP VOTE TO ACCEPT THE REDUCED OFFER, THEWORKERS SHALL IMMEDIATELY RETURN TO WORK AND THE EMPLOYER

SHALL THEREUPON READMIT THEM UPON THE SIGNING OF THE

AGREEMENT. (INCORPORATED BY SECTION 28, REPUBLIC ACT NO. 6715,

MARCH 21, 1989)

IMPROVED OFFER BALLOTING: in case of a lock-out, the DOLE may conduct

referendum by secret balloting on the reduced offer of the union on or before the 30th day

of the lockout.

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 AND264 OF THIS CODE. (AS AMENDED BY BATAS PAMBANSA BILANG 227, JUNE

1, 1982)

GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION

ART. 260. GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION. THEPARTIES 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 THEINTERPRETATION 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 DATEOF ITS SUBMISSION SHALL AUTOMATICALLY BE REFERRED TO

VOLUNTARY ARBITRATION PRESCRIBED IN THE COLLECTIVE

BARGAINING AGREEMENT.


28/82

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 THEAGREEMENT A PROCEDURE FOR THE SELECTION OF SUCH VOLUNTARY

ARBITRATOR OR PANEL OF VOLUNTARY ARBITRATORS, PREFERABLY

FROM THE LISTING OF QUALIFIED VOLUNTARY ARBITRATORS DULYACCREDITED 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 OFVOLUNTARY 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 BYTHE PARTIES AS DESCRIBED ABOVE.

ART. 261. JURISDICTION OF VOLUNTARY ARBITRATORS OR PANEL OF

VOLUNTARY ARBITRATORS. THE VOLUNTARY ARBITRATOR OR PANEL OFVOLUNTARY ARBITRATORS SHALL HAVE ORIGINAL AND EXCLUSIVE

JURISDICTION TO HEAR AND DECIDE ALL UNRESOLVED GRIEVANCESARISING FROM THE INTERPRETATION OR IMPLEMENTATION OF THE

COLLECTIVE BARGAINING AGREEMENT AND THOSE ARISING FROM THE

INTERPRETATION OR ENFORCEMENT OF COMPANY PERSONNEL POLICIESREFERRED 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 GRIEVANCESUNDER THE COLLECTIVE BARGAINING AGREEMENT. FOR PURPOSES OF

THIS ARTICLE, GROSS VIOLATIONS OF COLLECTIVE BARGAINING

AGREEMENT SHALL MEAN FLAGRANT AND/OR MALICIOUS REFUSAL TOCOMPLY WITH THE ECONOMIC PROVISIONS OF SUCH AGREEMENT.

THE COMMISSION, ITS REGIONAL OFFICES AND THE REGIONAL DIRECTORSOF 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 DISPOSEAND 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 OTHERLABOR DISPUTES INCLUDING UNFAIR LABOR PRACTICES AND

BARGAINING DEADLOCKS.


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ART. 262-A. PROCEDURES. THE VOLUNTARY ARBITRATOR OR PANEL OF

VOLUNTARY ARBITRATORS SHALL HAVE THE POWER TO HOLD

HEARINGS, RECEIVE EVIDENCES AND TAKE WHATEVER ACTION ISNECESSARY TO RESOLVE THE ISSUE OR ISSUES SUBJECT OF THE DISPUTE,

INCLUDING EFFORTS TO EFFECT A VOLUNTARY SETTLEMENT BETWEEN

PARTIES.

ALL PARTIES TO THE DISPUTE SHALL BE ENTITLED TO ATTEND THE

ARBITRATION PROCEEDINGS. THE ATTENDANCE OF ANY THIRD PARTY ORTHE EXCLUSION OF ANY WITNESS FROM THE PROCEEDINGS SHALL BE

DETERMINED BY THE VOLUNTARY ARBITRATOR OR PANEL OF

VOLUNTARY ARBITRATORS. HEARING MAY BE ADJOURNED FOR CAUSE

OR UPON AGREEMENT BY THE PARTIES.

UNLESS THE PARTIES AGREE OTHERWISE, IT SHALL BE MANDATORY FOR

THE VOLUNTARY ARBITRATOR OR PANEL OF VOLUNTARY ARBITRATORS

TO RENDER AN AWARD OR DECISION WITHIN TWENTY (20) CALENDARDAYS FROM THE DATE OF SUBMISSION OF THE DISPUTE TO VOLUNTARY

ARBITRATION.

THE AWARD OR DECISION OF THE VOLUNTARY ARBITRATOR OR PANEL

OF VOLUNTARY ARBITRATORS SHALL CONTAIN THE FACTS AND THE LAWON WHICH IT IS BASED. IT SHALL BE FINAL AND EXECUTORY AFTER TEN

(10) CALENDAR DAYS FROM RECEIPT OF THE COPY OF THE AWARD OR

DECISION BY THE PARTIES.

UPON MOTION OF ANY INTERESTED PARTY, THE VOLUNTARY

ARBITRATOR OR PANEL OF VOLUNTARY ARBITRATORS OR THE LABOR

ARBITER IN THE REGION WHERE THE MOVANT RESIDES, IN CASE OF THEABSENCE OR INCAPACITY OF THE VOLUNTARY ARBITRATOR OR PANEL OF

VOLUNTARY ARBITRATORS, FOR ANY REASON, MAY ISSUE A WRIT OF

EXECUTION REQUIRING EITHER THE SHERIFF OF THE COMMISSION ORREGULAR COURTS OR ANY PUBLIC OFFICIAL WHOM THE PARTIES MAY

DESIGNATE IN THE SUBMISSION AGREEMENT TO EXECUTE THE FINAL

DECISION, ORDER OR AWARD.

GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION

Generally, a Grievance Machinery should be provided in the CBA on Questions

(grievance) of:

a. interpretation or implementation of their CBA

b. those arising from the interpretation or enforcement of company personnel policies


30/82

Note:

a. Any issue not settled within 7 days from the date of submission automatically be

referred to Voluntary Arbitrators

b. Bypassing the Grievance Machinery is ULP however, it may be waived.

Temporary / ad hoc Arbitrator is selected when the dispute is already at hand.Permanent Arbitrator one who is selected before the dispute arises

Jurisdiction of Voluntary Arbitrator has original and exclusive jurisdiction over money

claims arising from (Grievances)

1. Contract Negotiation Disputes disputes as to the terms of a CBA

2. Contract Interpretation Disputes disputes arising under an existing CBA involving

such matters as the interpretation and application of the contract, or alleged violation of

its provisions including company policies

1) termination disputes, however if there is already an actual termination, the matter

falls with the jurisdiction of the Labor Arbiters

2) CBA violations not constituting ULP

3) Wage distortion issues

2. Upon agreement of the parties, all labor disputes including ULP and Bargaining

Deadlocks

How Arbitration is Initiated

2. a submission Agreement signed by both parties, describing the existing dispute.

3. by a demand or notice invoking a collective agreement arbitration


31/82

Authority of an Arbitrator

1. general authority to investigate and hear the case upon notice to the parties and torender an award based on the contract and record of the case

2. incidental authority to perform all acts, necessary to an adequate discharge of hisduties and responsibilities like setting and conduct of hearing, attendance of witnesses

and production of documents and other evidences, fact-finding and other modes of

discovery, reopening of hearing, etc.

3. special powers in aid of his general contractual authority like the authority to

determine arbitrability of any particular dispute and to modify any provision of existing

agreement upon which a proposed change is submitted for arbitration

4. authority to issue writ of execution

Appeal: Decision of the VA has a 10 calendar day finality (MR may be allowed -A 262-A). there is no appeal from the decision of the Voluntary Arbitrator, however, when

applicable, it may be brought through Rule 65 certiorari to the CA (Sime Darby Phils v.Magsalin)

Grounds for Certiorari (Continental Marble v. NLRC)

1. want of jurisdiction

2. grave abuse of discretion

3. violation of due process

4. denial of substantial justice

5. erroneous interpretation of the law

Zipper Clause a stipulation in a CBA indicating that issues that could have been

negotiated upon but not contained in the CBA cannot be raised for negotiation when the

CBA is already in effect.

Effect of the CBA


32/82

binding upon the Employer and the members of the appropriate bargaining unit even if

non-union members

enforceability of the cba to transferee employer

a) generally, the transfer of interest of the current employer to another, seversemployment relationship between the new party. EXCEPTION: when the transaction is

colored or clothed with bad faith

b) ON Mergers and Consolidation

Mergers when 2 or more corporations joint into a single corporation which is one of the

merging corporation; the separate existence of the other constituent corporation ceases

Consolidation when 2 or more corporation joint into an new single corporation;

separate existence of all the constituent corporation ceases, except that of the

consolidated corporation

Generally, the surviving or consolidated corporation shall be responsible for all theliabilities and obligations of each of the constituent corporation

Wiley Doctrine the surviving or consolidated corporation shall have the duty to bargain,

when there is relevant similarity and continuity of operations across the change inownership as evidenced by the wholesale transfer of the smaller corporations employees

to the larger corporations plant

Substitutionary Doctrine the employees cannot revoke the validity executed CBA with

their employer by the simple expedient of changing their bargaining agent. They mayhowever, negotiate the shortening of its period.

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


33/82

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 BYEXECUTIVE ORDER NO. 111, DECEMBER 24, 1986)

EO 180 for furtherance and protection of their interest

Declared not negotiable: those that require appropriation of funds

Negotiable: schedule of vacation and other leaves

HIGH LEVEL EMPLOYEE one whose functions are normally considered policy

determining, managerial or whose duties are highly confidential in nature

REGISTRATION: CSC and DOLE. Upon approval of the application, a registrationcertificate shall be issued to the organization

Remedies in Labor Disputes

1. Grievance Procedure in the CBA

2. Conciliation 3rd party meets with employer and labor and aids in reaching anagreement

3. Mediation 3rd party studies each side and makes proposals (cannot render an

award or decision)

4. Enforcement or compliance order an act of the Secretary in the exercise of his

visitorial power

5. Certification of Bargaining Representatives determination of which contending

unions shall represent employees in Collective Bargaining (handled by Med-Arbiters ofthe DOLE Regional Offices after certification of consent elections)

6. Arbitration - submission of a dispute to an impartial person for determination on the

basis of evidence and arguments of the parties.


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Voluntary Arbitration if the submission of dispute is by agreement of the parties and

the arbitrators or panel of arbitrators is chosen by them

(more elaborate discussion further in the material)

Compulsory Arbitration if submission of the dispute is by directive of law to the LaborArbiters of the NLRC

7. Assumption of jurisdiction by the Secretary

(among others)

POWERS AND DUTIES

ART. 217. JURISDICTION OF THE LABOR ARBITERS AND THE COMMISSION.

a. EXCEPT AS OTHERWISE PROVIDED UNDER THIS CODE, THE LABORARBITERS 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, THEFOLLOWING CASES INVOLVING ALL WORKERS, WHETHER AGRICULTURAL

OR NON-AGRICULTURAL:

1. UNFAIR LABOR PRACTICE CASES;

2. TERMINATION DISPUTES;

3. 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;

4. CLAIMS FOR ACTUAL, MORAL, EXEMPLARY AND OTHER FORMS OF

DAMAGES ARISING FROM THE EMPLOYER-EMPLOYEE RELATIONS;

5. CASES ARISING FROM ANY VIOLATION OF ARTICLE 264 OF THIS

CODE, INCLUDING QUESTIONS INVOLVING THE LEGALITY OF STRIKESAND LOCKOUTS; AND

6. EXCEPT CLAIMS FOR EMPLOYEES COMPENSATION, SOCIAL

SECURITY, MEDICARE AND MATERNITY BENEFITS, ALL OTHER CLAIMS


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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 WHETHERACCOMPANIED WITH A CLAIM FOR REINSTATEMENT.

b. THE COMMISSION SHALL HAVE EXCLUSIVE APPELLATE JURISDICTION

OVER ALL CASES DECIDED BY LABOR ARBITERS.

c. CASES ARISING FROM THE INTERPRETATION OR IMPLEMENTATION OF

COLLECTIVE BARGAINING AGREEMENTS AND THOSE ARISING FROM THE

INTERPRETATION OR ENFORCEMENT OF COMPANY PERSONNEL POLICIESSHALL 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)

JURISDICTION OF LABOR ARBITERS

What is the nature of jurisdiction of Labor Arbiters?

The jurisdiction is original and exclusive in nature.

Labor Arbiters have no appellate jurisdiction.

What are the money claims over which Labor Arbiters have jurisdiction?

Money claims falling within the original and exclusive jurisdiction of the Labor Arbitersmay be classified as follows:

1. any money claim, regardless of amount, accompanied with a claim for reinstatement(which involves a termination case); or

2. any money claim, regardless of whether accompanied with a claim for reinstatement,exceeding the amount of P5,000.00 per claimant (which does not necessarily involve

termination of employment).

Money claims must have arisen from employment or some aspect or incident of

such relationship (San Miguel Corp. vs. NLRC implied and innominate contract)


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Do Labor Arbiters have jurisdiction over wage distortion cases?

YES, only in unorganized establishments. In organized establishments, jurisdiction is

vested with Voluntary Arbitrators. (Art. 124, par.5)

Do Labor Arbiters have jurisdiction over money claims of Overseas Filipino Workers

(OFWs)?

YES. Those arising from employer-employee relationship or by virtue of any law or

contract involving Filipino workers for overseas deployment, including claims for actual,

moral, exemplary and other forms of damages.

(NOTE: The POEA continues to have jurisdiction over recruitment or pre-employment

cases which are administrative in nature, involving or arising out of recruitment laws,rules and regulations, including money claims arising therefrom or violation of the

conditions for issuance of license to recruit workers).

How should the monetary claims of OFWs be computed?

Skippers Pacific, Inc. vs. Mira, et al., (G. R. No. 144314, November 21, 2002) Under

Section 10, Republic Act No. 8042, the claim for unpaid salaries of overseas workers

should be whichever is less between salaries for unexpired portion of the contract or 3months for every year of the remaining unexpired portion of the contract (in case contract

is one year or more).

Do Labor Arbiters have jurisdiction over legality of strikes and lockouts?

YES, except in strikes and lockouts in industries indispensable to the national interest, in

which case, either NLRC (in certified cases) or DOLE Secretary (in assumed cases) has

jurisdiction.

NOTE: Local Water District are quasi-public corporation, employees belong to civil

service dismissal governed by the CSL (PD 198 Provincial Water Utilities Act of 1973)

ART. 218. POWERS OF THE COMMISSION. THE COMMISSION SHALL HAVE

THE POWER AND AUTHORITY:


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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 FUNCTIONSAND SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY

OUT THE PURPOSES OF THIS CODE; (AS AMENDED BY SECTION 10,


b.TO ADMINISTER OATHS, SUMMON THE PARTIES TO A CONTROVERSY,

ISSUE SUBPOENAS REQUIRING THE ATTENDANCE AND TESTIMONY OFWITNESSES 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 HEARINGCONDUCTED 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 WITHNOTICE 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 ANDTO 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 SUCHDIRECTIONS 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 THEDISPUTE 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 THESAME, 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 DEPOSITIONWHEN 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


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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 JUDGMENTSHALL 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 SHOULDTHE 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 UNDERRULE 71 OF THE REVISED RULES OF COURT; AND (AS AMENDED BY

SECTION 10, REPUBLIC ACT NO. 6715, MARCH 21, 1989)

Do Labor Arbiters have contempt powers?

Yes. However, it must be noted that according to the 2003 case of Land Bank of the

Philippines vs. Listana, Sr., [G. R. No. 152611, August 5, 2003], quasi-judicial agenciesthat have the power to cite persons for indirect contempt pursuant to Rule 71 of the Rules

of Court can only do so by initiating them in the proper Regional Trial Court. It is not

within their jurisdiction and competence to decide the indirect contempt cases. These

matters are still within the province of the Regional Trial Courts.

e. TO ENJOIN OR RESTRAIN ANY ACTUAL OR THREATENED COMMISSION

OF ANY OR ALL PROHIBITED OR UNLAWFUL ACTS OR TO REQUIRE THEPERFORMANCE 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 ANYDECISION 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 FORCROSS-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 THECOMMISSION, TO THE EFFECT:

1. THAT PROHIBITED OR UNLAWFUL ACTS HAVE BEEN THREATENEDAND 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,


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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 COMPLAINANTS

PROPERTY WILL FOLLOW;

3. THAT AS TO EACH ITEM OF RELIEF TO BE GRANTED, GREATER

INJURY WILL BE INFLICTED UPON COMPLAINANT BY THE DENIAL OFRELIEF 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

COMPLAINANTS PROPERTY ARE UNABLE OR UNWILLING TO FURNISHADEQUATE 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 ISSOUGHT, 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 COMPLAINANTS 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 COMPLAINANTS PROPERTYWILL 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 UPONHEARING 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 INJUNCTIONSHALL 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 THOSEENJOINED FOR ANY LOSS, EXPENSE OR DAMAGE CAUSED BY THE

IMPROVIDENT OR ERRONEOUS ISSUANCE OF SUCH ORDER OR

INJUNCTION, INCLUDING ALL REASONABLE COSTS, TOGETHER WITH AREASONABLE ATTORNEYS 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.


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THE UNDERTAKING HEREIN MENTIONED SHALL BE UNDERSTOOD TO

CONSTITUTE AN AGREEMENT ENTERED INTO BY THE COMPLAINANT ANDTHE 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 ANDSURETY SHALL HAVE REASONABLE NOTICE, THE SAID COMPLAINANT

AND SURETY SUBMITTING THEMSELVES TO THE JURISDICTION OF THE

COMMISSION FOR THAT PURPOSE. BUT NOTHING HEREIN CONTAINEDSHALL 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 OFINJUNCTION 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 HISRECOMMENDATION TO THE COMMISSION. (AS AMENDED BY SECTION 10,


JURISDICTION OF THE NLRC

What are the two kinds of jurisdiction of the NLRC?

The National Labor Relations Commission exercises two (2) kinds of jurisdiction:

1.original jurisdiction; and

2. exclusive appellate jurisdiction.

Original jurisdiction.

a. Injunction in ordinary labor disputes to enjoin or restrain any actual or threatenedcommission 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.

b. Injunction in strikes or lockouts under Article 264 of the Labor Code.

c. Certified labor disputes causing or likely to cause a strike or lockout in an industry

indispensable to the national interest, certified to it by the Secretary of Labor and

Employment for compulsory arbitration.


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Exclusive appellate jurisdiction.

a. All cases decided by the Labor Arbiters including contempt cases.

b. Cases decided by the DOLE Regional Directors or his duly authorized HearingOfficers (under Article 129) involving recovery of wages, simple money claims and other

benefits not exceeding P5,000 and not accompanied by claim for reinstatement.

What is the distinction between the jurisdiction of the Labor Arbiters and the NLRC?

The NLRC has exclusive appellate jurisdiction on all cases decided by the LaborArbiters. The NLRC does not have original jurisdiction on the cases over which Labor

Arbiters have original and exclusive jurisdiction (see above enumeration). If a claim doesnot fall within the exclusive original jurisdiction of the Labor Arbiter, the NLRC cannot

have appellate jurisdiction thereover.

What is the power to assume jurisdiction or certify "national interest" labor disputes to

NLRC?

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 certifythe same to the Commission for compulsory arbitration. (Article 263 [g], Labor Code).

What are the cases falling under the DOLE Secretary's appellate power?

a. Orders issued by the duly authorized representative of the Secretary of Labor and

Employment under Article 128 (Visitorial and Enforcement Power) may be appealed tothe latter. (Art. 128).

b. Denial of application for union registration or cancellation of union registrationoriginally rendered by the Bureau of Labor Relations (BLR) may be appealed to the

Secretary of Labor and Employment. (NOTE: If originally rendered by the Regional

Office, appeal should be made to the BLR).


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c. Decisions of the Med-Arbiter in certification election cases are appealable to the

DOLE Secretary. (Art. 259). (NOTE: Decisions of Med-Arbiters in intra-union disputesare appealable to the BLR).

Do Labor Arbiters have injunction power?

It must be noted that the provision in the 1990 version of the NLRC Rules granting

injunction power to the Labor Arbiters is no longer found in its 2002 version. It is opinedthat this deletion is correct since Article 218 of the Labor Code grants injunctive power

only to the "Commission" which obviously refers to the NLRC's various divisions and

not to the Labor Arbiter.

What are the money claims falling under the jurisdiction of DOLE Regional Directors?

Under Article 129, the Regional Director or any of the duly authorized hearing officers of

DOLE have jurisdiction over claims for recovery of wages, simple money claims andother benefits, provided that:

1. the claim must arise from employer-employee relationship;

2. the claimant does not seek reinstatement; and

3. the aggregate money claim of each employee does not exceed P5,000.00.

[Distinction of Art. 217, 128, and 129]JURISDICTION OF GRIEVANCE

MACHINERY IN THE CBA

What are the cases falling under the jurisdiction of the Grievance Machinery?

Any grievance arising from:

1. the interpretation or implementation of the Collective Bargaining Agreement(CBA); and

2. The interpretation or enforcement of company personnel policies.


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(NOTE: 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 CBA)

JURISDICTION OF VOLUNTARY ARBITRATORS OR PANEL OF Vas

What are the cases falling under the jurisdiction of the Voluntary Arbitrator or panel of

Voluntary Arbitrators?

The Voluntary Arbitrator (or panel of Voluntary Arbitrators) has original and exclusive

jurisdiction over the following:

1. All unresolved grievances arising from the interpretation or implementation of the

collective bargaining agreement after exhaustion of the grievance procedure; and

2. All unresolved grievances arising from the implementation or interpretation ofcompany personnel policies. (Article 261).

3. All other labor disputes including unfair labor practices and bargaining deadlocks,

upon agreement of the parties. (Article 262).

How should cases falling under the jurisdiction of the Voluntary Arbitrator but

erroneously filed with the Labor Arbiters or DOLE Regional Offices be processed?

They shall immediately be disposed and referred to the Grievance Machinery or

Voluntary Arbitration provided in the CBA.

In case of conflict, who has jurisdiction over termination disputes, Labor Arbiter orVoluntary Arbitrator?

ATLAS FARMS, INC. VS. NLRC (G.R. NO. 142244; Nov. 18, 2002) Jurisdiction overtermination disputes belongs to Labor Arbiters and NOT with Grievance Machinery nor

Voluntary Arbitrator [cited Maneja vs. NLRC, 290 SCRA 603, 616, (1998)].

CELESTINO VIVERO VS. COURT OF APPEALS, HAMMONIA MARINE

SERVICES, ET AL., (G. R. NO. 138938, OCTOBER 24, 2000) - Under Article 262, the

Voluntary Arbitrator may assume jurisdiction only when agreed upon by the parties.

Policy Instructions No. 56 issued by DOLE Secretary Confesor clarifying the jurisdiction


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of Labor Arbiters and Voluntary Arbitrations does not apply. It reiterated the ruling that

dismissal is not a grievable issue.

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, PLACEOR 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 ANYINFORMATION OR DATA CONCERNING ANY MATTER OR QUESTION

RELATIVE TO THE OBJECT OF THE INVESTIGATION.[This power is not meant to

duplicate visitorial-enforcement authority laid down under Art. 128]

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 FIXAND ASSESS THE FEES OF SUCH COMPULSORY ARBITRATORS, TAKING

INTO ACCOUNT THE NATURE OF THE CASE, THE TIME CONSUMED INHEARING 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, BATASPAMBANSA BILANG 130, AUGUST 21, 1981)

ART. 221. TECHNICAL RULES NOT BINDING AND PRIOR RESORT TO

AMICABLE SETTLEMENT. IN ANY PROCEEDING BEFORE THE COMMISSIONOR 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 ANDITS 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 LAWOR 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 ORCOMMISSIONER 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 ORBEFORE 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)


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Basis of Decision: submission of position papers, affidavits or documentary evidence

Modicum of admissibility: substantial evidence

Ang Tibay vs. CIR (1940) cardinal primary rights which must be respected even in

proceedings of this character:

1) right to a hearing

2) tribunal must consider the evidence presented

3) decision must be supported by something (evidence)

4) supporting evidence must be substantial

5) decision must be rendered on the evidence presented or at least contained in the

record and disclosed to the parties affected

6) the body or CIR or any of its judges must act on his own independent considerationof the law and facts, and not simply accept the views of he subordinate in arriving

decision

7) decide in such manner that parties can know the various issues involved and the

reason for the decision

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 ATTORNEYS FEES, NEGOTIATION FEES OR SIMILAR CHARGES OF

ANY KIND ARISING FROM ANY COLLECTIVE BARGAINING AGREEMENTSHALL BE IMPOSED ON ANY INDIVIDUAL MEMBER OF THE CONTRACTING

UNION: PROVIDED, HOWEVER, THAT ATTORNEYS FEES MAY BE CHARGED

AGAINST UNION FUNDS IN AN AMOUNT TO BE AGREED UPON BY THEPARTIES. 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)


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APPEAL

ART. 223. APPEAL. DECISIONS, AWARDS, OR ORDERS OF THE LABORARBITER ARE FINAL AND EXECUTORY UNLESS APPEALED TO THE

COMMISSION BY ANY OR BOTH PARTIES WITHIN TEN (10) CALENDAR

DAYS FROM RECEIPT OF SUCH DECISIONS, AWARDS, OR ORDERS. SUCHAPPEAL MAY BE ENTERTAINED ONLY ON ANY OF THE FOLLOWING

GROUNDS:

a. IF THERE IS PRIMA FACIE EVIDENCE OF ABUSE OF DISCRETION ON

THE PART OF THE LABOR ARBITER;

b. IF THE DECISION, ORDER OR AWARD WASSECURED THROUGH FRAUDOR COERCION, INCLUDING GRAFT AND CORRUPTION;

c. IF MADE PURELY ON QUESTIONS OF LAW; AND

d. IF SERIOUS ERRORS IN THE FINDINGS OF FACTS ARE RAISED WHICH

WOULD CAUSE GRAVE OR IRREPARABLE DAMAGE OR INJURY TO THEAPPELLANT.

IN CASE OF A JUDGMENT INVOLVING A MONETARY AWARD, AN APPEALBY THE EMPLOYER MAY BE PERFECTED ONLY UPON THE POSTING OF A

CASH OR SURETY BOND ISSUED BY A REPUTABLE BONDING COMPANY

DULY ACCREDITED BY THE COMMISSION IN THE AMOUNT EQUIVALENT

TO THE MONETARY AWARD IN THE JUDGMENT APPEALED FROM.

IN ANY EVENT, THE DECISION OF THE LABOR ARBITER REINSTATING A

DISMISSED OR SEPARATED EMPLOYEE, INSOFAR AS THE REINSTATEMENTASPECT IS CONCERNED, SHALL IMMEDIATELY BE EXECUTORY, EVEN

PENDING APPEAL. THE EMPLOYEE SHALL EITHER BE ADMITTED BACK TO

WORK UNDER THE SAME TERMS AND CONDITIONS PREVAILING PRIOR TOHIS DISMISSAL OR SEPARATION OR, AT THE OPTION OF THE EMPLOYER,

MERELY REINSTATED IN THE PAYROLL. THE POSTING OF A BOND BY THE

EMPLOYER SHALL NOT STAY THE EXECUTION FOR REINSTATEMENT

PROVIDED HEREIN.

TO DISCOURAGE FRIVOLOUS OR DILATORY APPEALS, THE COMMISSION

OR THE LABOR ARBITER SHALL IMPOSE REASONABLE PENALTY,INCLUDING FINES OR CENSURES, UPON THE ERRING PARTIES.

IN ALL CASES, THE APPELLANT SHALL FURNISH A COPY OF THEMEMORANDUM OF APPEAL TO THE OTHER PARTY WHO SHALL FILE AN

ANSWER NOT LATER THAN TEN (10) CALENDAR DAYS FROM RECEIPT

THEREOF.


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THE COMMISSION SHALL DECIDE ALL CASES WITHIN TWENTY (20)

CALENDAR DAYS FROM RECEIPT OF THE ANSWER OF THE APPELLEE. THE

DECISION OF THE COMMISSION SHALL BE FINAL AND EXECUTORY AFTERTEN (10) CALENDAR DAYS FROM RECEIPT THEREOF BY THE PARTIES.

ANY LAW ENFORCEMENT AGENCY MAY BE DEPUTIZED BY THESECRETARY OF LABOR AND EMPLOYMENT OR THE COMMISSION IN THE

ENFORCEMENT OF DECISIONS, AWARDS OR ORDERS. (AS AMENDED BY

SECTION 12, REPUBLIC ACT NO. 6715, MARCH 21, 1989)

APPEALSWhat are the modes of appeal from the decisions of the various labor tribunals?

1. DECISION OF LABOR ARBITERS: Appeal from the decision of the Labor Arbiter isbrought by ordinary appeal to the NLRC within ten (10) calendar days from receipt by

the party of the decision. From the decision of the NLRC, there is no appeal. The onlyway to elevate the case to the Court of Appeals is by way of the special civil action of

certiorari under Rule 65 of the Rules of Civil Procedure. From the ruling of the Court of

the Appeals, it may be elevated to the Supreme Court by way of ordinary appeal underRule 45 of the Rules of Civil Procedure. (St. Martin Funeral Home vs. NLRC, et al., G.

R. No. 130866, September 16, 1998).

2. DECISION OF VOLUNTARY ARBITRATORS: The decision of a Voluntary

Arbitrator or panel of Voluntary Arbitrators is appealable by ordinary appeal under Rule

43 of the Rules of Civil Procedure directly to the Court of Appeals. From the Court ofAppeals, the case may be elevated to the Supreme Court by way of ordinary appeal under

the same Rule 45. (Luzon Development Bank vs. Association of Luzon Development

Bank Employees, et al., G. R. No. 120319, October 6, 1995).

3. DECISION OF THE BLR: A. Denial of application for registration of a union. If the

denial is issued by the Regional Office, it may be appealed to the BLR. If the denial isoriginally made by the BLR, appeal may be had to the Secretary of Labor and

Employment. B. Cancellation of registration of a union. If the cancellation of union

registration is ordered by the Regional Office, the same may be appealed to the BLR. Ifthe cancellation is done by the BLR in a petition filed directly therewith, the BLR's

decision is appealable to the Secretary of Labor and Employment by ordinary appeal.

The decision of the BLR rendered in its original jurisdiction may be appealed to the

Secretary of Labor and Employment whose decision thereon may only be elevated to the

Court of Appeals by way of certiorari under Rule 65.


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The decision of the BLR rendered in its appellate jurisdiction may not be appealed to theSecretary of Labor and Employment but may be elevated directly to the Court of Appeals

by way of certiorari under Rule 65. (Abbott Laboratories Philippines, Inc. vs. Abbott

Laboratories Employees Union, et al., G. R. No. 131374, January 26, 2000).

4. DECISION OF THE MED-ARBITER IN CERTIFICATION ELECTION CASES -The decision is appealable to the DOLE Secretary of Labor and Employment.

5. DECISION OF THE DOLE REGIONAL DIRECTORS OR HIS DULYAUTHORIZED HEARING OFFICERS UNDER ARTICLE 129 INVOLVING

RECOVERY OF WAGES, SIMPLE MONEY CLAIMS AND OTHER BENEFITS NOT

EXCEEDING P5,000 AND NOT ACCOMPANIED BY CLAIM FOR

REINSTATEMENT - The decision is appealable to the NLRC and not to the DOLESecretary.

(NOTE: Appeal from CA to SC should be under Rule 45 (Petition for Review on

Certiorari) and not Rule 65 (Special Civil Action for Certiorari) - SEA POWERSHIPPING ENTERPRISES, INC. VS. COURT OF APPEALS, ET AL., G. R. NO.

138270, JUNE 28, 2001)

APPEAL TO THE NLRC FROM DECISIONS OF LABOR ARBITERS

What are the grounds for appeal?

There are four (4) grounds, to wit:

(a) If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter;

(b) If the decision, order or award was secured through fraud or coercion

unfair labor practices.doc

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