Labor Relations FINALS notes based on Atty. Marquez’ Syllabus Prepared by: Yin© “I used to think that you were a colossal pain in the neck. Now I have a much lower opinion of you ” RIGHT TO SELF ORGANIZATION
SCOPE & NATURE OF EMPLOYEE'S RIGHT; CONSTITUTIONAL & STATUTORY BASIS Article III Section 8 (1987 Constitution) The right of the people in the public and private sectors to form unions, associations or societies for purposes not contrary to law shall not be abridged.
Article XIII Section 3 (1987 Co nstitution) The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth. S T A T U TO R Y B A S I S
ARTICLE 243. Coverage and employees right to self-organization . – All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions, whether operating for profit or not , shall have the right to self-organization and to form, join, or assist labor organizations of their own choosing for purposes of collective bargaining . Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers may form labor organizations for their mutual aid and protection.
The rights to organize and to bargain, in a general sense are given not exclusively to employees. This is because even workers who are not employees of any particular employer employer may form their organization to protect their interests. Organization enjoys protection under the bill of rights Under 243, the right to organize refers also to forming, joining or assisting a labor organization. The usual form of organization is a union and the usual purpose is collective bargaining with their employers. Exception to the "all persons" in 243: - Managerial Employees (245) - Supervisors - allowed to organize, but they cannot form, join, or assist a rank-and-file union The right to self organization must be upheld in the absence of an express provision of law to the contrary. I t cannot be curtailed by a CBA. If the nature of the employees' job does not not fall under the definition of "managerial" as defined in the Labor Code, they are eligible to be members of the bargaining unit and to vote in the certification election Cooperative Members If they are members of the cooperative, they become owners of it. Thus, they cannot invoke the right to collective bargaining, for an owner cannot bargain with himself or his co-owners. Cooperatives with employees who are not members can invoke their rights to self-organization. Member-employees may withdraw as members of the cooperative in order to join a labor union. This is okay because being a member of the cooperative is voluntary. However, these members-employees of the cooperative are not precluded to form an association for their mutual aid and protection. "Worker's Association" - one which is organized for the mutual aid and protection of its members for any legitimate purpose other than collective bargaining. International Organizations A certification election cannot be conducted in an international organization which the Philippine Government has granted immunity from local jurisdiction - E.g. IRRI (International Rice Research Institute) ICMC ( International Catholic Migration Commission) - "International Organization" - an organization set up by agreement between two or more states. They are endowed with some degree of international legal personality such that they are capable of exercising specific rights, duties, and power. They are organized mainly as a means for conducting general international business in which the member states have interest. - Labor's Basic rights still remains
International Organization can expressly waive their immunity Aliens working in the country with valid permits may exercise the right to self organization IF they are nationals of a country that grants the same or similar rights to Filipino workers. o Valid work permit from DOLE o Reciprocity rule Religious Objectors Iglesia ni Cristo - Their teachings forbid membership in labor unions This applies even if there is a "closed shop" agreement which would compel compel employees to become union workers a s a condition to employment. This does not bar the members to form their o wn union GENERAL RULE: A person may not be required to join a union as a condition for employment EXCEPTION: Closed Shop Agreement EXCEPTION TO THE EXCEPTION: 1. Employee is prohibited by his religion 2. Employee is already a member of another union at the time of signing of the CBA 3. One is expressly excluded under the Union Security Clause.
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ARTICLE 244. Right of employees in the public service . – Employees of government corporations established under the Corporation Code shall have the right to organize and to bargain collectively with their respective employers . All other employees in the civil service shall have the right to form associations for purposes not contrary to law .
The first sentence of 244 refers to non civil service employees. GOCCs without original charters, incorporated under the Corporation Code. Second sentence refers to employees under the Civil service. If you are an EE of the city of Cebu, you are under the second sentence. Your right to self-organization covers only the right to form associations for purposes not contrary to law. For Civil service employees yo u have EO 180. SECTION 4. The Executive Order shall not apply to the members of the Armed Forces of the Philippines, including police officers, policemen, firemen and jail guards. Government employees have the right to organize and to negotiate, but not the right to strike Purpose is for the furtherance and protection of their interests The right of Government employees is not quite extensive compared to those employed in the private sector Excluded from negotiation by government employees are the terms and conditions of employment that are fixed by law. What maybe subject to n egotiation are those not otherwise fixed by law . Declared to be not negotiable are those matters that require appropriation of funds. No signing bonus for SSS employees. Exceptions: AFP members, police officers, policemen, firemen and jail guards - For reasons of security and safety High level employees - Those whose functions are normally considered as policy making - Whose functions are highly confidential - Professors at UP who are not exercising managerial or highly confidential functions may unionize separately from the non-academic personnel. - Public Sector Labor Management Council (PSLMSC) has jurisdiction to hear charges of ULP filed by government employees against their employer. CSC may adopt their decisions. - Temporary employees may also organize TWO CONCEPTS OF RIGHT TO ASSOCIATION 1. Freedom or liberty - A person cannot be prevented from forming an association as long as there is no law contrary to it 2. Power - The person has the right to dissociate himself from the association if he wants to - He cannot be compelled against his will TWO-FOLD PURPOSE FOR THE EXERCISE OF THE RIGHT 1. Collective Bargaining - Right that maybe acquired by the labor organization after registering with DOLE and being recognized or certified as the exclusive bargaining representative of the employees 2. Mutual Aid and Support RA 9481 (Strengthening the Workers Right to Self Organization) Amended Articles 234, 234-A, 238, 238-A, 239, 239-A, 242-A, 245, 245-A, 256, 257, 258-A DO 40-03_as amended by A-F DO 40-G-03
NON-ABRIDGMENT OF RIGHT TO SELF ORGANIZATION ARTICLE 246. Non-abridgment of right to self-organization. – It shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with employees and workers in their exercise of the right to selforganization. Such right shall include the right to form, join, or assist labor organizations for the purpose of collective bargaining through representatives of their own choosing and to engage in lawful concerted activities for the same purpose for their mutual aid and protection , subject to the provisions of Article 264 of this Code.
The labor organization entitled to the protection does not have to be a registered organization, and it does not have to be a bargaining union . If unregistered, it does not have a right to represent its members because it is not a lega l person - It cannot claim the rights under 242 The right to self organization is granted not only to employees but to workers, whether employed or not. Constitutionally speaking, the right to form associations or societies is a right of the people, whether workers or not. If the rights are abridged, it i s considered as ULP
UNION MEMBERSHIP & FORMATION OF UNION: WHO ARE QUALIFIED & DISQUALIFIED; DOCTRINE OF NECESSARY IMPLICATION ART. 245. Ineligibility of Managerial Employees to Join any Labor Organization; Right of Supervisory Employees . Managerial employees are not eligible to join, assist or form any labor organization . Supervisory employees shall not be eligible for membership in the collective bargaining unit of the rank-and-file employees but may join, assist or form separate collective bargaining units and/or legitimate labor organizations of their own . The rank and file union and the supervisors' union operating within the same establishment may join the same federation or national union .
ART. 245-A. Effect of Inclusion as Members of Employees Outside the Bargaining Unit . - The inclusion as union members of employees outside the bargaining unit shall not be a ground for the cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership of said union.
Three Tiered Classification of employees for purposes of labor relation 1. Managerial 2. Supervisory 3. Rank-and-file (For purposes of labor standard, rank-and-file & Managerial) MANAGERS Constitute three levels of pyramid
Top Management
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Responsible for the overall management of the organization The executives Establish the operating policies and guides the organizations' interactions with its environment CEO, President -
Middle Management Direct the activities of other managers and sometimes also those of operating employees Direct the activities that implement their organizations' policies and to balance the demands of their superiors with the capacities of their subordinates e.g. plant manager
First-line Management
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Responsible for the work of others They direct operating employees only Also called the supervisors e.g. foreman, technical supervisor
In the table above, a distinction exits between: 1.
Those who have the authority to devise, implement, and control strategic and operational policies Top & Middle Managers 2. Those whose task is to simply ensure that such policies are carried out by the rank-and-file employees First Line Management The rationale for prohibiting managerial employees from forming or joining labor organization is that if these managerial employees would belong to or be affiliated with a union, they might not have loyalty to the union because there is a conflict of interest. Furthermore, the union might be company-dominated. SUPERVISORS Can unionize
MANAGER Has the power to decide and to do acts recommended by the supervisor Must possess managerial powers: o Lay down and execute management policies o Hire o Transfer o Suspend o Lay-off o Recall o Discharge o Assign o Discipline employees Takes part in policy making
Decision Maker
SUPERVISOR Has the power only to recommend The power to recommend must not be merely clerical or routinary in nature, it must require the use of his independent judgment. The recommendation must be: 1. Discretionary or Judgmental 2. Independent 3. Effective - given particular weight in making management decision Where such recommendatory powers are subject to evaluation, review and final action by the department heads and other executives is not an exercise of independent judgment.
Recommender
The segregation is for the benefit of the employees a nd employers DOCTRINE OF NECESSARY IMPLICATION Refers to confidential confidential employees A confidential employee is one entrusted with confidence on delicate matters, or with the custody, handling, or care, or protection of the employer's property Under the doctrine of necessary implication, confidential employees are similarly disqualified (like managers) The doctrine of necessary implication means that what is implied in a statute is as much a part thereof as that which is expressed In Metrolab case, the court said the confidential employees should be exempted not only from the closed-shop provision of the CBA but also f rom membership in the rank-and-file bargaining unit. The confidentiality of the position must relate to labor relation matters Confidential employees are those who: 1. Assist or act in a confidential capacity 2. Persons who formulate, determine, and effectuate management policies in the fi eld of labor relations Those two criteria must be met Security guards may join rank-and-file or supervisors ’ union
REGISTRATION OF UNION; JURISDICTION & PROCEDURE; JURIDICAL PERSONALITY ART. 234. Requirements of Registration. - A federation, national union or industry or trade union center or an independent union shall acquire legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor organizations upon issuance of the certificate of registration based on the following requirements: (a) Fifty pesos (P50.00) registration fee; (b) The names of its officers, their addresses, the principal address of the labor organization, the minutes of the organizational meetings and the list of the workers who participated in such meetings; (c) In case the applicant is an independent union, the names of all its members comprising at least twenty percent (20%) of all the employees in the bargaining unit where it seeks to operate; (d) If the applicant union has been in existence for one or more years, copies of its annual financial reports; and (e) Four copies of the constitution and by -laws of the applicant union, minutes of its adoption or ratification, and the list of the members who participated in it
ART. 234-A. Chartering and Creation of a Local Chapter . - A duly registered federation or national union may directly create a local chapter by issuing a charter certificate indicating the establishment of the local chapter. The chapter shall acquire legal personality only for purposes of filing a petition for certification election from the date it was issued a charter certificate. The chapter shall be entitled to all other rights and privileges of a legitimate labor organization only upon the submission of the following documents in addition to its charter certificate: (a) The names of the chapter's officers, their addresses, and the principal office of the chapter; and (b) The chapter's constitution and by-laws: Provided , That where the chapter's constitution and by-laws are the same as that of the federation or the national union, this fact shall be indicated accordingly. The additional supporting requirements shall be certified under oath by the secretary or treasurer of the chapter and attested by its president ARTICLE 235. Action on application. – The Bureau shall act on all applications for registration within thirty (30) days from filing. All requisite documents and papers shall be certified under oath by the secretary or the treasurer of the organization, as the case may be, and attested to by its president.
ARTICLE 236. Denial of registration; appeal . - The decision of the Labor Relations Division in the regional office denying registration may be appealed by the applicant union to the Bureau within ten (10) days from receipt of notice thereof.
ARTICLE 237. Additional requirements for federations or national unions. – Subject to Article 238, if the applicant for registration is a federation or a national union, it shall, in addition to the requirements of the preceding Articles, submit the following: (a) Proof of the affiliation of at least ten (10) locals or chapters, each of which must be a duly recognized collective bargaining agent in the establishment or industry in which it operates, supporting the registration of such applicant federation or national union; and (b) The names and addresses of the companies where the locals or chapters operate and the list of all the members in each company involved.
ART. 238. Cancellation of Registration . - The certificate of registration of any legitimate labor organization, whether national or local, may be cancelled by the Bureau, after due hearing, only on the grounds specified in Article 239 hereof. ART. 238-A. Effect of a Petition for Cancellation of Registration . - A petition for cancellation of union registration shall not suspend the proceedings for certification election nor shall it prevent the filing of a petition for certification election. In case of cancellation, nothing herein shall restrict the right of the union to seek just and equitable remedies in the appropriate courts.
ART. 239. Grounds for Cancellation of Union Registration . - The following may constitute grounds for cancellation of union registration: (a) Misrepresentation, false statement or fraud in connection with the adoption or ratification of the constitution and by-laws or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification; (b) Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election of officers, and the list of voters; (c) Voluntary dissolution by the members ART. 239-A. Voluntary Cancellation of Registration . - The registration of a legitimate labor organization may be cancelled by the organization itself. Provided , That at least two-thirds of its general membership votes, in a meeting duly called for that purpose to dissolve the organization: Provided, further , That an application to cancel registration is thereafter submitted by the board of the organization, attested to by the president thereof. ARTICLE 240. Equity of the incumbent . - All existing federations and national unions which meet the qualifications of a legitimate labor organization and none of the grounds for cancellation shall continue to maintain their existing affiliates regardless of the nature of the industry and the location of the affiliates.
COLLECTIVE BARGAINING is a right that maybe acquired by a labor organization after registering itself with DOLE as the exclusive bargaining representative of the employees. 20% registration requirement applies only to an independent union A local chapter is created once a federation issues a charter certificate. The chapter acquires legal personality. This is referred to as the tentative legal personality . All other union rights will be acquired after submitting the f ollowing: 1. The names and addresses of the members and o fficers 2. The chapter's constitution and by-laws which can be the same as the federation These documents must be certified under oath by the Secretary or Treasurer and attested by the President. The BLR may cancel a union registration based only on the grounds enumerated under Article 239 A petition to cancel a union registration does not prevent the filing or hearing of a petition for certification election There are only three grounds to cancel a union's registration: falsehood about the CBL, about the election of officers, voluntary dissolution At least 2/3 of the membership may vote for dissolution, but this requires subsequent application to cancel to be submitted by the board of the organization a ttested by the president Effects of registration with DOLE It makes the organization a LEGITIMATE LABOR ORGANIZATION (LLO) It has legal personality to demand collective bargaining f rom the employer It can petition for a certification election It can hold a strike Registration is not a limitation to the exercise of the constitutional right to assembly. It is merely a condition sine qua non for the acquisition of legal personality and the possession of the rights granted by the law to LLO. It is a valid exercise of police power, because the activities in which labor organizations are engaged affect public interest, which should be protected. Where to Register For Independent labor Unions, chartered locals, and workers' associations - filed and acted upon by the Regional Office where the applicant principally operates For federations, national unions, workers' associations operating in more than 1 region Filed with BLR or Regional Offices Acted upon by the BLR which has national jurisdiction Recognition by BLR is not a ministerial function After the LO filed the necessary papers and documents for registration, it becomes mandatory for BLR to check if the requirements under Article 234 is complied with. BLR is given 30 days to review all applications for registration The propriety of a certificate of recognition could be assailed DIRECTLY through cancellation proceedings in accordance with 238 and 239 or INDIRECTLY by challenging its petition for the issuance of an order for certification election If there is lacking in the documents for registration, BLR is given 5 days from receipt of the application to notify the applicant. BLR gives the applicant 30 days to complete the documents. Failure to do so, the application for registration is denied. APPEAL Denial by the Regional Office ------> Appeal to BLR Regional Office -----> Court of Appeals Appeals (Rule 65) -----> Supreme Court (Rule 45) Denial by BLR -----> Secretary of Labor Appeal should be filed within 10 days from receipt of such notice on the grounds of grave abuse of discretion or violation of the rules Memorandum of appeal shall be filed with the regional office or BLR that issued the denial. The memorandum of appeal and other documents shall be transmitted by Regional Office to the bureau or by the bureau to the Secretary of Labor within 24 hours f rom receipt of the document. The bureau or the SOLE shall decide the a ppeal within 20 days ffrom rom the receipt of the records of the case
RIGHTS OF LEGITIMATE LABOR ORGANIZATION
ARTICLE 242. Rights of legitimate labor organizations. – A legitimate labor organization shall have the right: (a) To act as the representative of its members for the purpose of col lective bargaining; (b) To be certified as the exclusive representative of all the employees in an appropriate bargaining unit for purposes of collective bargaining; (c) To be furnished by the employer, upon written request, with its annual audited financial statements, including the balance sheet and the profit and loss statement, within thirty (30) calendar days from the date of receipt of the request, after the union has been duly recognized by the employer or certified as the sole and exclusive bargaining representative of the employees in the bargaining unit, or within sixty (60) calendar days before the expiration of the existing collective bargaining agreement, or during the collective bargaining negotiation; (d) To own property, real or personal, for the use and benefit of the labor organization and its members; (e) To sue and be sued in its registered name; and (f) To undertake all other activities designed to benefit the organization and its members, including cooperative, housing, welfare and other projects not contrary to law. Notwithstanding any provision of a general or special law to the contrary, the income and the properties of legitimate labor organizations, including grants, endowments, gifts, donations and contributions they may receive from fraternal and similar organizations, local or foreign, which are actually, directly and exclusively used for their lawful purposes, shall be free from taxes, duties and other assessments. The exemptions provided herein may be withdrawn only by a special law expressly repealing this provision.
ART. 242-A. Reportorial Requirements. - The following are documents required to be submitted to the Bureau by the legitimate labor organization concerned: (a) Its constitution and by-laws, or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification of the constitution and by-laws within thirty (30) days from adoption or ratification of the constitution and by -lam or amendments thereto; (b) Its list of officers, minutes of the election of officers, and list of voters within thirty (30) days from election; (c) Its annual financial report within thirty (30) days after the close of every fiscal y ear; and (d) Its list of members at least once a y ear or whenever required by the Bureau. Failure to comply with the above requirements shall not be a ground for cancellation of union registration but shall subject the erring officers or members to suspension, expulsion from membership, or any appropriate penalty. ARTICLE 277. Miscellaneous provisions. – (a) All unions are authorized to collect reasonable membership fees, union dues, assessments and fines and other contributions for labor education and research, mutual death and hospitalization benefits, welfare fund, strike fund and credit and cooperative undertakings .
The first three rights in 242 do not pertain to just about any union BUT ONLY TO THE UNION THAT HAS BEEN SELECTED AS THE BARGAINING REPRESENTATIVE OF THE EMPLOYEES IN THE BARGAINING UNIT . The union whose demand for collective bargaining was rebuffed by the employer because the union was not the certified bargaining agent, has no right to stage a strike. The union shall represent its members against ULP A labor union has the personality to file an action in behalf of its members. This is the right of the union to represent its members The union and its attorney should be allowed to participate in making compromise settlements with employees who are union members GENERAL RULE: When a union files a case "for and in behalf of its members", a member or several members of that union will not be permitted to file in the same case a compliant -in-intervention even if it alleges that the union was not pursuing the case diligently. EXCEPTION: Intervention maybe allowed when there is a suggestion of fraud, collusion or that the representative will not act in good f aith for the protection of all interests represented by the union Money claims due to laborers cannot be the object of settlement or compromise effected by a union or counsel without the specific individual consent of each laborer concerned. GENERAL RULE: A compromise agreement between the union and the company is binding upon the minority members of the union EXCEPTION: Union has no authority to compromise the individual claims of members who did not consent to such settlement. The union has the right to be furnished with financial statements of the employer After the union has been recognized by the employer as the sole bargaining representative After the union is certified by DOLE as such sole bargaining representative Within the last 60 days of the life of CBA During the collective bargaining negotiation The union has the right to collect dues – checkoff
RIGHTS & DUTIES OF UNION MEMBERS & NON-UNION MEMBERS AND QUALIFICATIONS Art. 241 (very long, see codals) The unions themselves must be democratic (rationale of 241)
Union officers must be elected directly by the members through secret ballots and that the major policy decisions must be voted upon by the members. Rights laid down in 241 maybe summarized as follows: Political Right - the member's right to vote and be voted for Deliberative and decision making right - the member's right to participate in deliberations on major policy questions and decide them by secret ballot Rights over money matters - right against excessive fees, unauthorized collections Right to Information - to be informed about the CBL and the CBA and about labor laws The union maybe considered as AGENT of its members for the purpose of securing for them fair and just wages and good working conditions. As agent, the union is subject to the obligation of giving the members as its principals all information relevant to union and labor matters entrusted to it. The union has an obligation to give an accounting to its members with respect to union contributions
ELECTION OF UNION OFFICERS AND QUALIFICATIONS The officers of the union are directly elected by the members in secret ballot voting Election takes place at intervals of 5 years , which is also the term of office of the officers Positions to be filled up, where, and how election should be done are matters left by law to the union's CBL. In the absence thereof, Implementing rules of Book V will apply IRR requires the incumbent president to create an election committee within 6o days before expiration of the incumbent officers If the officers with an expired term do not call for an election, the remedy would be to file a petition with the DOLE regional office with at least 30% of the members signing . Only members of the union can take part in the election of union officers Member in good standing One should be an employed in the company to qualify as an officer of a union in that company. A person who has been convicted of a crime of moral turpitude is ineligible for election as union officer or for appointment to any position in the union. A person who belongs to a subversive organization or who is engaged directly or indirectly in any subversive activity is disqualified to be a member of a union. Thus, he cannot be elected as an officer too. Union election protest is treated as an intra/ inter union dispute A union officer, after his election, may not be expelled from the u nion for past malfeasance or misfeasance. The remedy against erring union officers is not referendum but union expulsion Due process and Expulsion of a member must be in accordance with the CBL If the rights of the members are violated, it may result to the cancellation of the union registration or expulsion of culpable officers. Any complaint or petition with allegations of mishandling, misappropriation or non-accounting of funds shall be treated as an intra union dispute GENERAL RULE: To report a violation of the labor organization procedures, 30% of the members is required EXCEPTION: When the violation directly affects only one or two members, the only one or two members would be enough to support the violation.
CHECK-OFF PROVISION ARTICLE 113. Wage deduction. – deduction. – No employer, in his own behalf or in behalf of any person, shall make any deduction from the wages of his employees, except: (b) For union dues, in cases where the right of the worker or his union to check-off has been recognized by the employer or authorized in writing by the individual worker concerned
Check-off is a method of deducting from an employee's pay at a prescribed period, the amounts due the union for fees, fines, or assessments. Amount of union dues must be reasonable Assessments, like dues, may also be checked off Dues are defined as payments to meet the union's general and current obligations. The payment must be regular, periodic, and uniform Assessments are payments for a special purpose, especially if required only for a limited time The authorization should specifically state the amount, purpose, and b eneficiary of the deduction GENERAL RULE: Attorney's Fees may not be deducted or checked off from any amount due to an employee without his written consent EXCEPTION: Mandatory activities under the code - A mandatory activity is a judicial process of settling dispute laid down by the law Deduction for Union service Fee are authorized by law and do not require individual check-off authorization Agency Fee is an allowable deduction from employee's wage. wage. This is an amount, equivalent to union dues, which a nonunion member pays to the union because he benefits f rom the CBA negotiated by the union . Your obligation to contribute if you benefit from the CBA arises from a Quasi-contract
DISAFFLIATION: MEMBERS AND UNION When a local union, af filiates with a national federation, the local union remains the basic units of association, free to serve their own interest subject to the restraints imposed by the CBL of the national federation, and free also to renounce the affiliation upon the terms laid down in the agreement which brought such affiliation.
TO DISAFFILIATE IS A RIGHT, BUT TO OBSERVE THE TERMS OF THE AFFILIATION IS AN OBLIGATION The pendency of an election protest involving both the mother federation and the local union is not a bar to a valid disaffiliation. Disaffiliation is not a ground for disloyalty in the absence of specific provisions in the federation's CBL. The right to disaffiliate is exercised ONLY when warranted by the circumstances. GENERAL RULE: A labor union may disaffiliate from the mother union to form a local or independent union ONLY during the 60-day freedom period immediately preceding the expiration of the CBA EXCEPTION: Disaffiliation effected by a majority of the members in a bargaining unit may still be carried out even before the freedom period Disaffiliation has to be decided by the entire membership through secret balloting A member or any number of members may disaffiliate from their union during the freedom period. Disaffiliating the union itself from the mother union must be supported by the majority of its members. If done by a minority, even during the freedom period, may constitute an act of disloyalty. When a union which is not independently registered disaffiliates from the federation, it is not entitled to the rights and privileges granted to a LLO. It cannot file a petition for certification election. The federation is entitled to receive the dues from the employer only as long as the local union is affiliated with the federation. The CBA continues to bind the members of the new or disaffiliated and independent union up to the CBA's expiration SUBSTITUTIONARY DOCTRINE - employees cannot revoke the validly executed CBA with their employer by the simple expedient of changing their bargaining agent. The new agent must respect the contract.
INTRA UNION & INTER UNION DISPUTES; JURISDIC TION OF BLR; OTHER MATTERS Inter-union disputes - refers to any conflict between and among legitimate labor unions involving representation questions for purposes of collective bargaining or to a ny other conflict or dispute between legitimate labor unions Intra-union disputes - refers to any conflict between and among members, including grievances arising from any violation of the rights and conditions of membership, violation of or disagreement over any provision of the union's CBL, or disputes arising from chartering or affiliation of union. A complaint involving intra/inter union disputes shall be filed by LLO or its members. However, if the issues involves the entire membership , complaint must be supported by at least 30% of the membership Other related labor disputes - any conflict between a labor union and the employer or any individual, entity or group that is not a labor organization or workers' workers' association; such dispute include cancellation cancellation of registration of labor union and interpleader. Complaint of this kind maybe filed by a party-in-interest who is not necessarily a union o r union member In any of the two categories: If the dispute involves an independent union, chartered local, or workers' association - filed with the DOLE Regional Office where the labor organization is regist ered If the dispute involves a federation or an industry/national union - filed with the BLR The filing or pendency of any inter/intra union dispute and other related labor relations dispute is not a prejudicial question to any petition for certification election and shall not be a ground for the dismissal of a petition for certification election or suspension of proceedings fro certification election APPEAL Decision of the Med-Arbiter or Regional Director - appeal to the BLR within 10 days from receipt Decision of the BLR - appeal to the Office of the Secretary within 10 days Appeal shall be verified under oath, shall consist of a memorandum of appeal The memorandum of appeal shall be filed in the Regional Office or BLR where the complaint originated. Within 24 hours, they shall transmit the records of the case to the appropriate office. When no appeal is filed within the 10 day period, the decision shall be entered as final and cause the implementation A reply to the appeal must be filed within 10 days from receipt of the memorandum of appeal The BLR or Secretary is given 20 days from r eceipt of the entire records of the case to render a decision. The filing of the memorandum of a ppeal stays the decision The BLR or secretary may call the parties for a clarificatory hearing After 10 days from receipt of the decision of BLR or Secretary, it shall be final and executory unless a motion for reconsideration is filed within the same period The BLR's authority is broad and expansive. It may hold a referendum election among the members of a union for the purpose of determining whether or not they desire to be affiliated with a federation BLR has no authority to order referendum among union members to decide whether to expel or suspend union officers BLR has no authority to forward a case to the Trade Union Congress of the Philippines for arbitration and decision.
CANCELLATION OF UNION REGISTRATION; GROUNDS; JURISDICTION; PROCEDURE THREE GROUNDS FOR CANCELLATION OF REGISTRATION 1. Misrepresentation about the union CBL 2. Misrepresentation in the Election of Officers 3. Voluntary Dissolution Four requisites for this to be valid: a. The members' desire to dissolve or ca ncel the registration should have been voted upon through secret balloting
The balloting should take place in a meeting duly called for the purpose of deciding whether or not the registration must be cancelled c. 2/3 affirmative vote of the general m embership d. The members resolution must be followed by an application for cancellation - attested by the president There is also an administrative cancellation, see book page 211. Any party in interest may commence a petition for cancellation. An employer may be a party-in-interest Petition to cancel shall be made under oath and shall state clearly and concisely the facts and grounds relied upon, accompanied by a proof of service to the respondent. This must be a separate action. For legitimate independent labor union, chartered local, workers' association - registration maybe cancelled by the Regional Director upon filing of an independent complaint or petition for c ancellation Appealable to BLR ----> CA For federations and national or industry unions and trade union centers - registration maybe cancelled by BLR upon filing of an independent complaint or petition for cancellation Appealable to the Secretary -----> CA The rules and procedures for cancellation cases are those applicable to inter/intra union disputes. b.
INQUIRY INTO THE UNION'S FINANCIAL ACTIVITIES: VISITORIAL POWER ART. 274. Visitorial power . – The Secretary of Labor and Employment or his duly authorized representative is hereby empowered to inquire into the financial activities of legitimate labor organizations upon the filing of a complaint under oath and duly supported by the written consent of at least twenty percent (20%) of the total membership of the labor organization concerned and to examine their books of accounts and other records to determine compliance or noncompliance with the law and to prosecute any violations of the law and the union constitution and by-laws: Provided, That such inquiry or examination shall not be conducted during the sixty (60)-day freedom period nor within the thirty (30) days immediately preceding the date of election of union officials.
The above article authorizes the SOLE or his duly authorized representative to inquire into the financial activities of an y labor organization. Provided: 1. The basis will be a complaint under oath 2. Supported by 20% of the membership The purpose of this is to determine compliance or noncompliance with the laws and to aid in the prosecution of any violation thereof. Difference between the Visitorial Power of the SOLE in 128 and 274
Article 128 SUBJECT
INSPECTION
Article 274
Pertains to administrative Speaks of enforcement of law or regulations enforcement of labor code relating only to financial activities and provisions and all labor laws and records of labor organizations wage orders in employer's establishment Maybe done by the department's own initiative
Needs a sworn complaint filed and supported by ate least 20% of the organization's membership
For a request of examination of books of accounts of independent labor unions, chartered locals and workers' association pursuant to 274 shall be filed with the Regional Office that issued its certificate of registration or certificate of creation of chartered local For a request of examination of books of accounts of federations federations or national or trade union centers unions shall be filed with the Bureau Procedures: 1. File the request at the appropriate office 2. The request may either be: GRANTED There shall be an appointment of an Audit Examiner. The decision granting an audit is interlocutory and is not appealable Audit examiner shall conduct an inventory of all physical assets acquired by the labor organization, if any, and on the basis of his/her findings prepare his/her audited financial report or statement reflecting the true and correct financial accounts and balances of the labor organization with relevant annexes attached. Audit examiner has 60 days from the date of first pre-audit conference within which to complete the conduct of audit. This maybe extended when the records are voluminous. Audit examiner shall inform the Med-Arbiter or BLR at least 10 days before the expiration of 60 days A copy of the audit report shall be submitted to the Med-Arbiter or BLR within 10 days from termination of audit The Med-Arbiter or BLR shall render a decision within 20 days from r eceipt of the audit report DENIED Appealable within 10 days from receipt thereof If Med-Arbiter - appeal to BLR -
No complaint for inquiry or examination of the financial and book of accounts as well as other records of any LLO shall be entertained: a. During the 60-day Freedom period b. Within 30 days immediately preceding the date of election of union officers
OTHER POWERS OF THE SECRETARY OF LABOR
ARTICLE 273. Study of labor-management relations . – The Secretary of Labor shall have the power and it shall be his duty to inquire into: (a) the existing relations between employers and employees in the Philippines; (b) the growth of associations of employees and the effect of such associations upon employer-employee relations; (c) the extent and results of the methods of collective bargaining in the determination of terms and conditions of employment; (d) the methods which have been tried by employers and associations of employees for maintaining mutually satisfactory relations; (e) desirable industrial practices which have been developed through collective bargaining and other voluntary arrangements; (f) the possible ways of increasing the usefulness and efficiency of collective bargaining for settling differences; (g) the possibilities for the adoption of practical and effective methods of labor -management cooperation; (h) any other aspects of employer-employee relations concerning the promotion of harmony and understanding between the parties; and (i) the relevance of labor laws and labor relations to national development. The Secretary of Labor shall also inquire into the causes of industrial unrest and take all the necessary steps within his power as may be prescribed by law to alleviate the same, and shall from time to time recommend the enactment of such remedial legislation as in his judgment may be desirable for the maintenance and promotion of industrial peace.
OTHER SPECIAL LAWS: RA 7916 CHAPTER IV and IRR (Part 1, Rule II, Sec.2; Part IX, Rule XXIII, Sections 1-7) Even if you are in the ECOZONE, the Labor Code of the Philippines still applies. e.g. Industries in MEPZA - employees there can still have labor unions because they are still covered by the Labor Law. If your employer makes you sign a waiver not to be a member of a union as a condition for employment, he is guilty of unfair labor practice.
RIGHTS OF LEGITIMATE LABOR ORGANIZATION LEGEND: LLO – Legitimate Labor Organization Exclusive Bargaining – EBR Representative VR – Voluntary Recognition CE – Certification Election
CsE – Consent Election CBU – Collective Bargaining Unit Collective Bargaining CBA – Agreement ULP – Unfair Labor Practices OE – Organized Establishment
UE – Unorganized Establishment LMC – Labor Management Council CBL – Constitution & By Laws Voluntary Arbitration VA
RIGHTS IN GENERAL Article 242, as amended (See the previous topic on self-organization) EXCLUSIVE BARGAINING AGENT; PURPOSE As provided in DO No. 40-03, "Exclusive Bargaining Representative" refers to a legitimate labor union duly recognized or certified as the sole & exclusive bargaining representative or agent of all the employees in a bargaining unit. CERTIFICATION PROCESS: ELECTION & VOLUNTARY RECOGNITION ART. 256. Representation Issue in Organized Establishments . - In organized establishments, when a verified petition questioning the majority status of the incumbent bargaining agent is filed by any legitimate labor organization including a national union or federation which has already issued a charter certificate to its local chapter participating in the certification election or a local chapter which has been issued a charter certificate by the national union or federation before the Department of Labor & Employment within the sixty (60)-day period before the expiration of the collective bargaining agreement, the Med-Arbiter shall automatically order an election by secret ballot when the verified petition is supported by the written consent of at least twenty-five percent (25%) of all the employees in the bargaining unit to ascertain the will of the employees in the appropriate bargaining unit. To have a valid election, at least a majority of all eligible voters in the unit must have cast their votes. The labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit . When an election which provides for three or more choices results in no choice receiving a majority of the valid votes cast , a run-off election shall be conducted between the labor unions receiving the two highest number of votes : Provided , That the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast . In cases where the petition was filed by a national union or federation, it shall not be required to disclose the names of the local chapter's officers & members. At the expiration of the freedom period , the employer shall continue to recognize the majority status of the incumbent bargaining agent where no petition for certification election is filed.
ART. 257. Petitions in Unorganized Establishments. - In any establishment where there is no certified bargaining agent, a certification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by any legitimate labor organization , including a national union or federation which has already issued a charter certificate to its local/chapter participating in the certification election or a local/chapter which has been issued a charter certificate by the national union or federation. In cases where the petition was filed by a national union or federation, it shall not be required to disclose the names of the local chapter's officers & members. ARTICLE 258. When an employer may file petition . – When requested to bargain collectively, an employer may petition the Bureau for an election. If there is no existing certified collective bargaining agreement in the unit, the Bureau shall, after hearing, order a certification election. All certification cases shall be decided within twenty (20) working days . The Bureau shall conduct a certification election within twenty (20) days in accordance with the rules & regulations prescribed by the Secretary of Labor.
ART. 258-A. Employer as Bystander . - In all cases, whether the petition for certification election is filed by an employer or a legitimate labor organization, the employer shall not be considered a party thereto with a concomitant right to oppose a petition for certification election. The employer's participation in such proceedings shall be limited to : (1) being notified or informed of petitions of such nature; & (2) submitting the list of employees during the pre-election conference should the Med-Arbiter act favorably on the petition
To bargain with the employer, the employees in the CBU can be represented by one & only one union which has to be a LLO duly designated or selected by the employees in the CBU. The selection of such bargaining agent may take place in an organized or unorganized establishment. Organized Establishment (OE)- refers to any enterprise where there exists a recognized or certified sole & exclusive bargaining agent Unorganized Establishment (UE)- where no union has yet been duly recognized or certified as bargaining representative. The union that will represent the employees in bargaining with the employer must be identified. Otherwise, no CBA can be entered into. In UE: Employer may voluntarily recognize the bargaining agent. If there are obstacles to this, the petition to hold an election maybe filed any time by any LLO EXCEPT within 12 months from a previous CE, run-off election, or consent election In OE: Voluntary recognition is NOT POSSIBLE A petition to hold CE has to be filed within the FREEDOM PERIOD, which means the last 60 days of the fifth year of the expiring CBA In other words, the contest between unions comes at intervals of roughly 4 years & 10 months. Petition maybe filed by any LLO, but the petition MUST have the written support of at least 25% of the employees in the bargaining unit An employer may also file a petition for CE Conducted under the supervision & control of DOLE. Where one casting the votes is not decisive enough, a run-off election maybe held. Only when two or more unions are vying for the office of exclusive bargaining representative. (EBR) There are 3 methods to determine EBR: 1. Voluntary Recognition 2. Certification Election with or without run-off 3. Consent Election VR requires three concurrent conditions: VOLUNTARY 1) VR is only possible in a n unorganized establishment REGISTRATION (VR) 2) There is only on union seeking for recognition 3) The union voluntarily recognized should be the majority union as indicated by the fact that members of the bargaining unit did not object to the projected recognition. If no objection is raised, DOLE will be informed and CBA negotiation will commence If an objection is raised, VR is barred and CE will have to take place Under DO No. 40-03, the following must be observed: Within 30 days from recognition, the employer and union shall submit a notice of VR with the Regional Office which issued the recognized labor union’s certificate or registration or certificate of creation o f a chartered local The notice must be accompanied with the following requirements: 1) A joint statement of employer and union under oath of VR attesting to the fact of VR 2) Certificate of posting of the joint statement of VR for 15 consecutive days in at least 2 conspicuous places in the establishment of the bargaining unit where the union seeks to operate
3)
CERTIFICATION (CE)
ELECTION
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The approximate number of employees in the bargaining unit, accompanied by the names of those who support the VR comprising at least a majority of the members of the bargaining unit 4) A statement that the labor union is the only LLO operating within the bargaining unit. These documents must be shall be certified under oath by the employer representative and president of the recognized labor union. If the notice is already sufficient in form, number an d substance, the Regional Office through the Labor Relations Divisions shall record the fact of VR within 10 days from receipt of notice If not sufficient – Regional office shall notify the labor union within 10 days from receipt of notice and ask them to comply. If they failed to complete the requirements, Regional Office shall return the notice of VR within 30 days from receipt of advisory without prejudice to its re-submission. Entry of VR shall bar the filing of a petition for CE for a period of one year from the date of entry of VR The employer and the union should conclude and register a CBA within 1 year from VR, otherwise the VR will lapse and a rival union may petition for CE There must ONLY be one LLO operating within the bargaining unit The holding of CE is the most democratic method of d etermining the employee’s ch oice of their EBR Election is by means of Secret Ballot CE means the process of determining through secret ballot the sole and exclusive representative of the employees in an appropriate bargaining unit, for purposes of collective bargaining or negotiation Nature of CE is an investigation of non-adversary and fact finding character. It is not bound by the technical rules on Evidence. Involves two issues: 1) Proper composition and constituency of the bargaining unit 2) Veracity of majority membership claims of the competing unions so as to identify the one union that will serve as the bargaining representative of the entire bargaining unit Some of the employees may not want to have a union, thus “NO UNION” If “NO UNION” wins, the company of the bargaining unit rema ins ununionized for at least 12 months, the period known as the 12-month bar. After this period, a petition for CE maybe filed again. CE is different from Union Election (UE) UE is held pursuant to the union’s CBL and the right to vote in it is enjoyed by union members. The object is to elect the officers of the union CE is the process ordered and supervised by DOLE, of determining, by secret ballot, whether or not a majority of the employees wish to be represented by a labor organization and, in the affirmative case, by which particular labor organization. In CE, all employees, whether union member or not, who belong to the appropriate bargaining unit can vote. The winners in UE become officers and representatives of the union only while the winners in CE is an entity, a union, which becomes the representative of the whole bargaining unit that includes even the members of the defeated union. Direct Certification is not allowed. The mere fact that there is no opposition does not warrant a direct certification. WHO FILES PETITION FOR CE? A request or a petition to hold CE in an enterprise maybe filed by a registered union OR by an employer (applies to OE and UE) A national union/federation filing a petition in behalf of its local/chapter shall not be required to disclose the names of the local/chapter’s officers and members, BUT shall ATTACH to the petition the CHARTER CERTIFICATE it issued to its local/chapter In OE, the petition must be accompanied with at least 25% written support of the members in the bargaining unit. In UE, no requirement for support WHERE TO FILE CE? Petition shall be filed with the Regional Office which issued the petitioning’s union certificate of registration or certificate of creation of chartered local Petition shall be heard by and r esolved by the Med-Arbiter Where two or more petitions involving the same bargaining unit are filed in one
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Regional Office, the same shall be automatically consolidated with the MedArbiter who first acquired jurisdiction. Where the petitions are filed in different Regional Offices, the Regional Office which the petition was first filed shall exclude all the others; in which case, the latter shall indorse the petition to the former for con solidation WHEN TO FILE PCE? UNORGANIZED ESTABLISHMENT 1) Anytime ORGANIZED ESTABLISHMENT 1) Within the last 60 days of the fifth year of the CBA FORM AND CONTENTS OF PCE Must be in writing, verified under oath by the President of the petitioning LLO 1) If filed by a national union/federation, the petition shall be verified under oath by the president or duly authorized representative of the federation or national union with a certification under oath as to the existence of its local/chapter in the establishment and attaching thereto the charter certificate or a certified true copy 2) If filed by the local/chapter, it shall attach its charter certificate or a certified true copy 3) If filed by the employer, the owner president or any corporate officer, who is authorized by the board of directors shall verify the petition. The petition should also state the following circumstance, whichever is applicable: 1) That the bargaining unit is unorganized or that there is no registered CBA covering the employees in the bargaining unit 2) If there exists a CBA, that the petition is filed within the 60-day freedom period of such agreement 3) If another union had been previously recognized voluntarily or certified in a valid certification, consent r run-off election, that the petition is filed outside the 1 year period from date of recording of such voluntary recognition or conduct of certification or run-off election and no appeal is pending thereon ACTION ON PETITION PRELIMINARY CONFERENCE 1) PCE shall be assigned by raffle to a med-arbiter 2) Med-arbiter shall immediately prepare and serve a notice of preliminary conference to be held within 10 working days from his receipt of PCE 3) The service of the PCE to the employer and service of notice of preliminary conference to the petitioner and incumbent bargaining agent (if any) shall be made within 3 working days from med- arbiter’s receipt of the PCE Personal service, registered mail, courier service A copy of the PCE and notice of preliminary conference shall be posted within the same 3 day period in at least 2 conspicuous places in the establishment. In multiple location workplaces, the posting shall be made in at least two conspicuous places in each location. The preliminary conference is principally meant to determine whether the PCE should be processed further or dismissed. It is the means also to determine the bargaining unit that will participate in the election, the identity of the contending unions, and the possibility of holding a consent election instead of CE Med-arbiter may deny or dismiss the PCE. Denial or grant is always appealable to the SOLE. The grant is NEVER APPEALABLE if it is unorganized establishment HEARINGS AND PLEADINGS Med-Arbiter may conduct as many hearings as necessary, BUT the conduct of hearings cannot exceed 15 days from the date of the scheduled preliminary conference/hearing. After that time, the petition shall be considered submitted for decision. Postponements or continuances are discouraged Within the same 15 day period which the petition is heard, the contending unions may file such pleadings as they may deem necessary for the immediate resolution of the petition. Extensions will not be entertained. All motions shall be resolved by the Med-Arbiter in the same order or decision granting or denying a petition. shall be deemed a The failure of any party to appear in the hearings shall waiver of its right to be heard. The Med-Arbiter, for meritorious reasons
may allow the cancellation of the hearings. This cancellation shall not extend the 15 day period. Within 10 days from the date of the last hearing, the Med-Arbiter shall issue a formal order denying or granting the petition. In ORGANIZED ESTABLISHMENTS , the order of decision granting the petition can only be issued after the lapse of the freedom period. The reason for this is that during the entire 60day freedom period, up to its last day, the door should remain open for any union to file PCE or a motion for intervention 8 GROUNDS TO DENY THE PETITION FOR CE NON-APPEARANCE If the petitioning union does not appear in 2 successive conferences called by the Med-Arbiter, the petition maybe dismissed after it is shown that the petitioner was duly notified. ILLEGITIMACY: UNREGISTERED UNION Except Art 258 (where an employer may file PCE), only a LLO can file PCE. Thus, if the petitioning union is not listed in DOLE’s list of LLOs or if its registration has been cancelled with finality, these facts will authorize the med-arbiter to dismiss the PCE. Even if the union is listed as LLO, its legitimacy may still be questioned in a separate and independent petition for cancellation to be heard and decided by the BLR director or the Regional Director himself. A filing of a petition to cancel DOES NOT SUSPEND the PCE. To serve as a ground for dismissal, the legal personality of the petitioner should have been revoked or cancelled with finality. Neither may a CE be stayed during the pendency of ULP charge against a union filed by the employer. ILLEGITIMACY: NO CHARTER This ground for dismissing PCE obliges the petitioning union, either local or national, to submit a duly issued charter certificate of the chapter at the tome the union files PCE; failure to do so will cause the dismissal of PCE ABSENCE OF EMPLOYMENT RELATIONSHIP If this is absent, the petition has no legal basis and therefore should be dismissed. The employer notified about the petition may invoke and prove the absence of EE relationship THE 12 MONTH BAR Also known as the CERTIFICATION YEAR BAR No petition for CE maybe filed within 1 year from the date of valid certification, consent, or run-off election or from the date of entry of voluntary recognition of the union by the employer. If an election had been held but not one of the unions won, a PCE maybe filed again but only after 12 months. The same ban applies if “NO UNION” won in the previous election On the other hand, if a union has won, such union and the employer must within 12 months start negotiating a CBA. If they fail to do so, the union or the unions that lost can petition again for CE after 12 months from the last election so as to replace the unproductive bargaining agent. If circumstance would show that the cause of not having concluded a CBA was not the union’s fault, such union should not be blamed and a CE should not be authorized even though no CBA has been concluded despite the passage of 12 months. The 12 month bar presupposes that there was an actual of conduct of election. In a case where there was no CE because the first petition was dismissed on the ground that it did not include all the employees who should be properly included in the CBU, the certification year bar does not apply. This bar does not also apply if there was a failure of election because less than majority of the CBU members voted. In this case, another PCE maybe held within 6 months. An election maybe held less than a year after an invalid election. nd Also not barred would be a 2 election held among a group of employees who had not participated in the first election and
had not been given the opportunity to be represented as part st of the unit in the 1 election. A radical change in the size of the bargaining unit within a short period of time, raising a question as to the majority status of the certified representative, may also prompt the NLRB to entertain a PCE during the certification year NEGOTIATION OR DEADLOCK BAR The duly recognized or certified union has commenced negotiation with the employer within the 12 month period, and the negotiation is on-going. Neither will PCE prosper if negotiation is caught in a deadlock. The deadlock does not erase the fact that there is a negotiation which is a barrier to holding CE. The parties should be allowed to resolve their deadlock; replacing the negotiating union will not help. A petition for CE can only be entertained if there is no pending bargaining deadlock submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout. This is to ensure stability in the relationship of the workers and the management. There is a deadlock when there is a complete blocking or stoppage resulting from the action of equal and opposed forces. The deadlock that bars a CE must be genuine and not a drama. One indicator that it is genuine is the submission of the deadlock to a third party arbitrator. EXISTING CBA Known as the CONTRACT BAR RULE Article 232 does not allow the filing of PCE during the life of a duly registered CBA, except, says Article 256, within the last 60 days of the fifth year of the CBA, otherwise known as the freedom period. This is intended to ensure stability in the relationships of the workers and management by preventing frequent modifications of any CBA earlier entered by them in god faith and for the stipulated original period. “Freedom Period” refers to that time when unions are legally allowed to challenge openly and formally the status of the a union as the exclusive bargaining representative of the bargaining unit. Also during this time, switching of allegiance among union members or among the affiliates or chapters maybe done without risking a charge for disloyalty under the CBL or the CBA union’s security clause. The freedom period under Article 253-A & 256 is different from the other 60-day period mentioned in Article 253. The latter speaks of the right of the parties to propose modifications to the existing CBA, as an exception to the rule that the CBA cannot be modified during its lifetime. This 60-day period does not and cannot refer to the representative status of the incumbent union since the acquisition or loss of representative status is to be resolved through CE. This is also called the notice period.
NOTICE PERIOD FREEDOM PERIOD nd The last 60 days of the 2 or The last 60 days of the rd th 3 year of the CBA’s 5 year of the nonrepresentational representational aspect provisions Pertains to an economic event Political event involving involving the employer and only the union and the the bargaining union employees CBA must be registered in accordance with Article 231 Contract Bar Rule Applied: Extended CBA under deadlock. No petition for CE maybe filed before the onset of the freedom period nor after such period. The old CBA is extended until a new one is signed. Contract Bar Rule Applied: Unproved Surreptitious Registration of CBA. Evidence must be presented for the alleged surreptitious registration of the CBA.
Contract Bar Rule NOT Applied: Defective CBA . The CBA must be adequate in that it comprises substantial terms and conditions of employment. Contract Bar Rule NOT Applied : Referendum to register on Independent Union. This is not disallowed by law even while a CBA exists Contract Bar Rule NOT Applied : CBA signed before or within Freedom Period Despite Injunctive Order. A CBA which was prematurely renewed is not a bar to the holding of a CE. The petition for CE does not bar the employer and the incumbent union from renegotiating and renewing the expiring CBA. In other words, a CBA maybe renegotiated before, during, or after the 60 day freedom period. But if during such period, a PCE is filed, the med-arbiter can order the suspension of the renegotiation until the representation proceedings finally end. LACK OF SUPPORT In an ORGANIZED ESTABLISHMENT , PCE must be supported by at least 25% of the bargaining unit. In an UNORGANIZED ESTABLISHMENT, no support is needed. If the withdrawal of support happened before the filing, the withdrawal is presumed voluntary and it affects the propriety of the petition; if after, the withdrawal is deemed involuntary and it does not necessarily cause the dismissal of PCE. PROHIBITED GROUNDS FOR DENIAL COMMINGLING The inclusion as union members of employees outside the bargaining unit shall not be a ground for the cancellation of registration of the union. Said employees are automatically deemed removed from the list of membership of said unions. Neither is such commingling enough reason to dismiss PCE. VALIDITY OF REGISTRATION Issues regarding the union’s registration shall be heard and resolved by the Regional Director in an independent petition for cancellation of its registration and not by the med-arbiter in the PCE, unless the petitioning union is not listed in the DOLE’s roster of LLO or an existing CBA is not registered with the Department. AUTHORITY TO DECIDE THE EXISTENCE OF EE RELATIONSHIP; MEDARBITER’S ORDER APPEALABLE TO THE SECRETARY All issues pertaining to the existence of EE relationship or to eligibility to union membership shall be resolved in the order or decision granting or denying the PCE. In other words, those issues do not stall the PCE and they are not grounds for dismissing PCE. The authority to determine EE relationship is necessary and indispensable in the exercise of jurisdiction by the med-arbiter, his finding thereon may only be reviewed and reversed by the SOLE who exercises appellate jurisdiction under Article 259. Similarly, incidental to the power of the med-arbiter to hear and decide cases is the power to determine eligibility of voters. For instance, it is necessary to consider the legality of the members’ withdrawal from the cooperative in order to determine the legality of their joining union. APPROVAL If there exists no ground to dismiss or otherwise deny the petition for CE, the med-arbiter has to grant it. The ruling for the conduct of CE shall state the following: Name of the employer or establishment Description of the bargaining unit A statement that none of the grounds of dismissal exists Names of the contending labor unions in the following order: Petitioner unions in the order of the date of filing of their respective petitions; forced intervenor; and “No Union” To afford an individual employee-voter an informed choice where a local/chapter is one of the contending unions, a directive to a unregistered local/chapter or a federation/national union representing an unregistered local/chapter to personally submit to the election officer its certificate of creation at least 5 working days before the actual
APPEAL
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conduct of CE. Non-submission of this requirement as certified by the election officer shall disqualify the local/chapter from participating in CE A directive upon the employer and the contending union/s to submit within 10 days from receipt of the order, the certified list of employees in the bargaining unit, or where necessary, the payrolls covering the members of the bargaining unit for the last 3 months prior to the issuance of the order.
An order granting PCE is not appealable in the case of UNORGANIZED ESTBALISHMENT An order granting PCE is appealable if the establishment is ORGANIZED. Appeal to the Office of the Secretary within 10 days from receipt thereof. Must be verified under oath and shall consist of a memorandum of appeal specifically stating the grounds relied upon by the appellant with the supporting arguments and evidence. Memorandum of Appeal shall be filed in the Regional Office where the petition originated, copy furnished the contending unions and the employer, as the case may be. Within 24 hours from receipt of the appeal, the Regional Director shall cause the transmittal thereof together with the entire records of the case to the Office of the Secretary. Where no appeal is filed, the med-arbiter shall enter the finality of the decision. A reply to the appeal maybe filed by any party within 10 days from receipt of the memorandum of appeal. Reply shall be filed directly to the office of the secretary The secretary shall have 15 days from receipt of the entire records to decide the appeal. The decision of the secretary shall become final and executory after 10 days from receipt thereof by the parties. No MR shall be entertained Within 48 hours from the finality of the decision, the records shall be remanded to the Regional Director for i mplementation. CONDUCTING OF CERTIFICATION ELECTION PRE-ELECTION CONFERENCE 1) Raffle the case to an election officer within 24 hours from receipt of the notice if entry of judgment granting the PCE 2) Within 24 hours from raffle, election officer shall schedule the preelection conference which should be within 10 days from the receipt of assignment. 3) Pre-election conference shall set the mechanics of the election Date and time of election which shall not be later than 45 days st from the date of the 1 pre-election conference, shall bee on a regular working day and within the employer’s premises List of eligible and challenged voters Number and location of polling booths and number of ballots to be prepared Name of watchers or representatives and their alternates Mechanics and guidelines of the election 4) Failure to appear shall be deemed as waiver of right to be heard 5) Posting of notice of the election at least 10 days before the actual date of election in two conspicuous places in the company premises THE VOTERS 1) All employees who are members of the appropriate bargaining unit sought to be represented by the petitioner at the time of the issuance of the order granting the conduct of CE shall be eligible to vote. 2) The list of voters should be based on the employer-certified list of employees in the CBU or payrolls. If the employer does not submit the payrolls, the union may submit their own list 3) Employees who have been improperly laid off can vote 4) Probationary employees can also vote THE VOTING 1) On the spot questions – the election officer shall rule on any question relating to and raised during the conduct of election. 2) Protest shall be recorded in the minutes of the election CANVASSING OF VOTES 1) Votes shall be counted by the election officer in the presence of the
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representatives of the contending unions. PROCLAMATION AND CERTIFICATION 1) Double Majority Rule Number of votes cast must be the majority of the number of eligible voters Union with the majority of valid votes cast 2) Failure of election No double majority 3) Action on the motion Within 24 hours from receipt of the motion, the election officer shall immediately schedule the conduct of another CE within 15 days from receipt of the motion and cause the posting of the notice at least 10 days prior to election. 4) Run-off Election When an election which provides for the 3 or more choices results in none of the contending unions receiving a majority of the valid votes cast, and there are no objections or challenges which if sustained can materially alter the results, the election officer shall motu proprio conduct a run-off election within 10 days from the close of the election proceeding between the labor unions receiving the 2 highest number of votes; provided, that the total number of votes for all contending union is at least 50% of the number of votes cast. EMPLOYER AS A BYSTANDER; CANNOT OPPOSE PCE He has no right or material interest to assail CE He is allowed to protest against irregularities committed in the conduct of CE His participation is limited to: 1) Being notified or informed of petitions of such nature 2) Submitting the list of employees during the pre-election conference should Med-Arbiter act favorably on the petition. Not mentioned in the Labor Code but authorized and detailed in the Implementing Rules CsE is voluntarily agreed upon by the parties, with or without the intervention of the Department May take place in an organized or unorganized establishment If the parties agree to hold CsE, the results shall constitute a bar to the holding of CE for 1 year from the holding of CsE. Where an appeal has been filed from the results of the CsE, the running of the 1 year period shall be suspended until the decision on appeal has become f inal and executory.
SCOPE: BARGAINING UNIT; JURISDICTIONAL PRECONDITIONS TO COLLECTIVE BARGAINING Collective Bargaining contemplates the representation of the collective interests of all employees in the particular
bargaining unit by a properly selected bargaining agent. The agent is the representative of all the employees in that particular bargaining unit Such bargaining agent shall be the "exclusive" representative of all the employees. The term "exclusive" means that the employer must treat with the representative to the exclusion of all the other bargaining agents. Exclusive Bargaining Agent represents even the minority union When the certified union files a claim against the employer & the case is decided in due course, the decision binds even the minority union, which therefore is barred from filing another case for the same cause of action against the same employer. The action is barred by principle of res judicata. However, on purely personal & individual matters, the union cannot pretend that they know better. If the majority union neglects the interest of the employees in the minority union, then such majority union violated its duty of fair representation. The minority union, although a loser in the CE does not lose its character as a lawful labor organization entitled to protection. There is a reservation in Article 255, "despite the presence of a bargaining agent, an individual employee or group of employees shall have the right at anytime to present grievances to the employer" Under Article 255 also, the bargaining agent's capacity as "exclusive representative" is only for the purpose of collective bargaining. - For negotiating & administering a CBA, the majority union is the sole & exclusive representative - For non-CBA issues, the minority union may act as a group of employees to present grievances to the employer. The minority union is also protected against ULP by the employer. Minority union can engage in peaceful concerted activity, but it cannot resort to work stoppage or strike because strike is reserved to an EBR. Majority union my also represent retired employees who are enforcing their rights embodied in the CBA.
The majority union must serve the interest of all members of the bargaining unit without hostility or discrimination
DUTY TO BARGAIN WITH OR WITHOUT CBA; FOUR FORMS OF VIOLATION OF DUTY TO BARGAIN Art. 250. Procedure in collective bargaining. The following procedures shall be observed in collective bargaining: a. When a party desires to negotiate an agreement, it shall serve a written notice upon the other party with a statement of its proposals. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice; b. Should differences arise on the basis of such notice & reply, either party may request for a conference which shall begin not later than ten (10) calendar days from the date of request. c. If the dispute is not settled, the Board shall intervene upon request of either or both parties or at its own initiative & immediately call the parties to conciliation meetings. The Board shall have the power to issue subpoenas requiring the attendance of the parties to such meetings. It shall be the duty of the parties to participate fully & promptly in the conciliation meetings the Board may call; d. During the conciliation proceedings in the Board, the parties are prohibited from doing any ac t which may disrupt or impede the early settlement of the disputes; & e. The Board shall exert all efforts to settle disputes amicably & encourage the parties to submit their case to a voluntary arbitrator.
Art. 251. Duty to bargain collectively in the absence of collective bargaining agreements . In the absence of an agreement or other voluntary arrangement providing for a more expeditious manner of collective bargaining, it shall be the duty of employer & the representatives of the employees to bargain collectively in accordance with the provisions of this Code. Art. 252. Meaning of duty to bargain collectively. The duty to bargain collectively means the performance of a mutual obligation to meet & convene promptly & expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work & all other terms & conditions of employment including proposals for adjusting any grievances or questions arising under such agreement & executing a contract incorporating such agreements if requested by either party but such duty does not compel any party to agree to a proposal or to make any concession. Art. 253. Duty to bargain collectively when there exists a collective bargaining agreement. When there is a collective bargaining agreement, the duty to bargain collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime. However, either party can serve a written notice to terminate or modify the agreement at least sixty (60) days prior to its expiration date. It shall be the duty of both parties to keep the status quo & to continue in full force & effect the terms & conditions of the existing agreement during the 60 -day period &/or until a new a greement is reached by the parties.
A CBA refers to contract executed upon the request request of either the employer or the EBR of the employees incorporating the agreement reached after negotiations with respect to wages, hours of work & all other terms & conditions of employment, including proposals for adjusting any grievances or questions under such agreement. Parties to Collective Bargaining Employer Employees represented by EBR Duty to Bargain exists when: 1. Where there is yet no CBA CB A (Unorganized Establishment) The mutual obligation of the employer & the employees' EBR to meet & convene. The purposes of meeting & convening are: - To negotiate an agreement on the subjects of wages, hours of work, & all other terms & conditions of employment including proposals for adjusting grievances or questions arising under such agreement - To execute a contract incorporating such agreement if requested by either party The kind of compliance required is prompt, expeditious, & in good faith 2. Where a CBA exists (Organized Establishment) The duty to bargain is the sam e in the above when there is no CBA yet In addition, the obligation not to terminate or modify the CBA during its lifetime. - 60 days before the CBA expires, either party may notify the other party in writing that it desires to terminate or modify the agreement - During the 60 day period & until a new agreement is reached, the CBA remains in full force & effect Either parties maybe allowed to modify the C BA. Prior to that, the CBA remains valid & enforced. FOUR FORMS OF ULP IN BARGAINING 1. FAILURE OR REFUSAL TO MEET OR CONVENE An employer is guilty of ULP in refusing to bargain with the EBR. Employer must recognize the EBR
A union can also be found guilty of refusal to bargain collectively when it insisted that the employer agree to union demands that he make retroactive payments of pension benefits & submit to an audit of his books, before the union would execute a bargaining agreement The pendency of a petition for cancellation of union registration does not preclude the collective bargaining A mere change in the ownership of a business is insufficient to alter a union's status as EBR. If there is a material & substantial alteration in the employing enterprise, the new employer need not bargain with incumbent union Refusing to bargain during period of illegal strike i s an act not deemed refusal to bargain If the employer does not reply to the proposal of the EBR, CBA is imposed on him unilaterally 2. EVADING THE MANDATORY SUBJECTS OF B ARGAINING An employer's duty to bargain is limited to the mandatory subjects; as to the other matters, he is free to bargain or not to bargain 3. BAD FAITH IN BARGAINING, INCLUDING FAILURE OR REFUSAL TO EXECUTE THE COLLECTIVE AGREEMENT, IF REQUESTED The charge of bad faith should be raised while the bargaining is in progress. When the bargaining is finished & the CBA has been executed voluntarily by the parties, a charge of bargaining in bad faith is too late & untenable. Instances of Bad faith: Delay of negotiations, imposing time limit on negotiations Surface Bargaining is manifestation of bad faith - "Surface Bargaining" which means a sophisticated pretense in the form of apparent bargaining. Duty to bargain requires more than a willingness to talk. - “Blue Sky Bargaining” which means unrealistic and unreasonable demands either on the part of the employees or management. They ask for impossible demands. Proposing modifications to expiring CBA is not a form of bad faith 4. GROSS VIOLATION OF THE CBA Occurs when the collective contract is already in place. The negotiations are over at this stage. But at this stage, the duty to bargain is still operative because such duty further requires faithful adherence to the contractual provisions
RIGHT TO COLLECTIVE BARGAINING; SINGLE ENTERPRISE BARGAINING OR DECENTRALIZED BARGAINING & MULTIEMPLOYER BARGAINING OR INDUSTRY WIDE BARGAINING SINGLE ENTERPRISE BARGAINING The law gives primacy to f ree collective bargaining & allows the parties to devise their bargaining rules. The parties meet to set the ground rules before tackling in earnest the CBA proposals of either party. The EBR & employer my adopt such procedure & processes they my deem a ppropriate & necessary for the early termination of negotiations MULTI-EMPLOYER BARGAINING When a number of employers join forces for purposes of collective bargaining. This may take place within many different geographical subdivisions. The structure may consist of an association representing employers or even a whole industry or it maybe composed of a only a few employers who bargain as a group, or through an association This purely optional Procedure - LLO & employers may agree in writing to come together for the purpose of collective bargaining, provided: Only LLO who are incumbent EBR may participate Only employers with counterpart LLO who are incumbent EBR may participate Only those LLO who pertain to employer units who consent to multi-employer bargaining may participate - Multi-employer bargaining maybe initiated by the labor union or by the employers
WHEN TO BARGAIN If the 3 jurisdictional preconditions are present , the collective bargaining should begin within 12 months following the
determination & certification of the employees' EBR EBR . This period is known as the "certification year" Remember that you cannot file PCE during the “certification year”. It is one of the grounds for denial of your PCE Jurisdictional Preconditions to set the collective bargaining in motion 1. Possession of the status of majority representation of the employees' representative in accordance with any of the means of selection or designation provided for by the Labor Code 2. Proof of majority 3. A demand to bargain under Article 250(a) of the Labor Code Employer is not under any legal duty to initiate collective bargaining. The EBR must demand for it
CONTENTS OF CBA: GRIEVANCE MACHINERY & UNION SECURITY CLAUSE; MANDATORY SUBJECT OF BARGAINING; IMPASSE; BOULWARISM Art. 260. Grievance machinery & voluntary arbitration. The parties to a Collective Bargaining Agreement shall include therein provisions that will ensure the mutual observance of its terms & conditions. They shall establish a machinery for the adjustment & resolution of grievances arising from the
interpretation or implementation of their Collective Bargaining Agreement & those arising from the interpretation or enforcement of company personnel policies. All grievances submitted to the grievance machinery which are not settled within seven (7) calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the Collective Bargaining Agreement. For this purpose, parties to a Collective Bargaining Agreement shall name & designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators, or include in the agreement a procedure for the selection of such Voluntary Arbitrator or panel of Voluntary Arbitrators , preferably from the listing of qualified Voluntary Arbitrators duly accredited by the Board. In case the parties fail to select a Voluntary Arbitrator or panel of Voluntary Arbitrators, the Board shall designate the Voluntary Arbitrator or panel of Voluntary Arbitrators, as may be necessary , pursuant to the selection procedure agreed upon in the Collective Bargaining Agreement, which shall act with the same force & effect as if the Arbitrator or panel of Arbitrators has been selected by the parties as described above.
The following are examples of matters considered as mandatory subjects of bargaining : 1. Wages & other types of compensation, including merit increases 2. Working hours & working days including work shifts 3. Vacations & holidays 4. Bonuses 5. Pensions & Retirement Plans 6. Seniority 7. Transfer 8. Lay-offs 9. Employee workloads 10. Work rules & regulations 11. Rent of company houses 12. Union security arrangement Boulwarism is indicative of bad faith, thus categorized as ULP by the employer Discussed in the case of NLRB vs General Electric Co. - After a strike in 1946 which resulted in a settlement which GE company regarded as extremely costly, it developed a new bargaining policy referred to as Boulwarism. - Under this new approach, the company attempted to sell its proposals to its employees & the general public through a publicity campaign in plant newspapers, bulletins, letters, television, & radio announcements & personal contacts. - NLRB found such approach as bad faith on the part of GE. The approach was designed to the derogate the union in the eyes of its members & the public at large. - The approach had 2 major facets: 1. A take-it-or-leave-it approach to negotiations in general which emphasized both the powerlessness & uselessness of the union to its members 2. A communication program that pictured GE as the true defender of the employees' interest, further denigrating the union, & sharply curbing the Company's policy to change its own position. - The aim in a word was to deal with the union through its employees, rather than with the employees through the union IMPASSE The adamant insistence on a bargaining position to the point where the negotiations reach an impasse does not establish bad faith. A bargaining impasse over an issue exists where good faith bargaining on the part of the parties has failed to resolve the issue & there are no definite plans for further efforts to break the deadlock Impasse presupposes a reasonable effort at good faith bargaining which, despite noble intentions, does not conclude in an agreement between the parties. Deadlock or Impasse does not mean the end of bargaining. It signals rather the need to continue the bargaining with assistance of a 3rd party as conciliator or arbitrator whose first aim is to get the parties back to the negotiating table & help them craft a win-win situation. GRIEVANCES A grievance is defined as any question by either the employer or the union regarding the interpretation or application of the CBA or company personnel policies or any claim by either party that the other party is violating any provision of the CBA or company personnel policies. Any dispute or controversy respecting terms & conditions of employment which an employee or group of employees may present to the employer can be a grievance, even without a union or CBA. Voluntary Arbitrators have the original & exclusive jurisdiction over grievances All grievances arising from the implementation or interpretation of the CBA &/or interpretation & enforcement of company policies are compulsorily subject to the grievance machinery Before an aggrieved employee may resort to the courts to enforce his individual rights under a bargaining contract, the employee must exhaust all the remedies avail able to him under such contract. The grievance machinery under the agreement is the every heart of industrial self-government Failure to submit a grievance to the the grievance machinery shall constitute ULP because the grievance grievance procedure is a continuous process of collective bargaining. It is intended to promote a friendly dialogue between the parties. The employee's waiver of her option to submit her case to grievance machinery did not amount to relinquishing her right to avail herself of voluntary arbitration
In the absence of applicable provision in the CBA, a grievance committee shall be created within 10 days from
signing of the CBA - The committee shall be composed of at least 2 representatives each from the members of the bargaining unit & the employer, unless otherwise agreed upon by the parties. The representatives from among the members of the bargaining unit shall be designated by the union. If the union forgot to make a grievance machinery in their CBA, they will be asked to make one. It is indispensable. Grievance Machinery must always be present in the CBA. There can be a grievance even if there is no union or CBA. This will be discussed later under individual grievances Procedure in handling grievances under DO NO. 40-03 - In the absence of a specific provision in the CBA or existing company practice prescribing for the procedures in handling a grievance, DO NO. 40-03 shall apply - An employee shall present his grievance or complaint orally or in writing to the shop steward A Shop Steward is an officer of a union. They are appointed by the union in a shop, department, or plant serving as representatives of the union, charged with negotiating & adjustment of grievances of employees with the supervisor of the employer. He is the representative of the union in a building or workplace. His duties include the conduct of initial negotiations for settlement of grievances, help the members with work-related issues. - Shop Steward shall then verify the facts & determine on whether or not the grievance is valid - If the grievance is valid, shop steward shall immediately bring the complaint to the employee's immediate supervisor Shop steward, employee, & his immediate supervisor shall exert efforts to settle the grievance at their level - If no settlement is reached, the grievance shall be referred to the grievance committee which shall have 10 days to decide the case Union Security Clause A "union security clause" is a stipulation in the CBA whereby the management recognizes that the membership of employees in the union which negotiated said agreement should be maintained & continued as a condition for employment or retention of employment. employment. The obvious purpose is to safeguard & ensure the the continued existence of the union. “Union Security” is a generic term which is applied to and comprehends “closed shop”, “union shop”, “maintenance of membership” or any other form of agreement which imposes upon employees the obligation to acquire or retain union membership as a condition affecting employment. This is to guarantee the survival of the union. It is an enforced membership. Types: 1. Closed shop agreement Only union members can be hired by the company and they must remain as union members to retain employment in the company 2. Maintenance of membership agreement No employee is compelled to join the union, but all present or future members must, as a condition of employment, remain in good standing in the union 3. Union shop agreement Nonmembers may be hired, but to retain employment must become union members after a certain period. The requirement applies to present & future employees 4. Modified union shop agreement Employees who are not union members at the time of signing the contract need not join the union, but all workers thereafter must join 5. Exclusive bargaining Shop The union is recognized as the EBR for all employees in the bargaining unit, whether union members or not 6. Bargaining for members only agreement The union is recognized as the bargaining agent only for its own members 7. Agency shop agreement An agreement whereby the employees must join either the union or pay to the union as EBR a sum equal to that paid by the members. This is directed against “free rider” employees who benefit from union activities without contributing financially to union support 8. Open Shop An arrangement which does not require union membership as a condition of employment The Union Security Clause is regarded by the SC as the most prized achievement of unionism. This is because the existence of the union will be assured & strengthen because everybody in the ba rgaining unit, whether he likes it or not, is compelled to be members of the certified bargaining union. & if all are members of that union, its existence, survival, & p rosperity of that union will be assured. The broad rule is that the union has the right to determine its membership & to prescribe the conditions for the acquisition & retention thereof. Consequently, admission to membership may not be compelled. - Exception: In the case of labor unions holding a monopoly in the supply of labor, either in a given locality, or as regards a particular employer by reason of a closed-shop or similar agreements. In such case, qualified applicants may not be barred by unreasonable rules
Exception to the "Closed Shop Agreement" - When already a member of another union at the time of the CBA - If employee is a member of a religious organization which prohibits him from joining labor
organizations - When the close shop agreement contains a provision excluding the employee from the c overage of the closed shop provision IRR of RA 9165 (Pertinent Provisions only) B. FORMULATION OF DRUG-FREE WORKPLACE POLICIES & PROGRAMS The workplace policies & programs shall be prepared jointly by management & labor representatives & shall be made an integral part of the company’s occupational safety & health & related workp lace programs. In organized establishments , the workplace policies & programs shall be included as part of the Collective Bargaining Agreements D. ROLES, RIGHTS & RESPONSIBILITIES OF EMPLOYERS & EMPLOYEES Labor unions, federations, workers organizations & associations are enjoined to take an active role in educating & training their member s on drug abuse prevention & control. They shall, in cooperation with their respective private sector partners, develop & implement joint continuing programs & information campaigns, including the conduct of capability-building programs, peer counseling & values education with the end in view promoting a positive lifestyles & a drug -free workplace.
RATIFICATION OF CBA, WHEN & WHEN NOT NEEDED & REGISTRATION OF CBA The agreement negotiated by the employees' EBR should be ratified or approved by the majority of all the workers in
the bargaining unit. The proper ratifying group is not the majority union but the majority of all the workers in the bargaining unit represented by the negotiation A CBA is valid between the parties, but unless it will be ratified, it shall not be enforceable. IRR requires: Posting of the CBA in 2 conspicuous places for 5 days Ratification is not needed when the CBA is a product of an arbitral award by the appropriate government authority or by a voluntary arbitrator. The arbitral award may result from voluntary arbitration or form the secretary's assumption of jurisdiction or certification certification of the dispute to the NLRC. However, the CBA still needs to be posted in 2 conspicuous places in the workplace, but this posting is for the information of, & not ratification by the employees affected. CBA has to be registered with the DOLE regional office Pay the registration fee If the CBA is not registered, the contract bar rule shall not apply Ratified but unsigned Still effective even without the signature of the union president or union secretary-treasurer, notwithstanding a contractual provision that the agreement is not valid unless so countersigned. Unratified but implemented The parties to a CBA are required to furnish copies to the appropriate Regional Office with accompanying proof of ratification by the majority of all the workers in the bargaining unit. - CBA is neither valid nor invalid considering that the employees have already enjoyed benefits under such CBA If the parties cannot agree, the result would be a bargaining deadlock. And when there is bargaining deadlock…peaceful concerted activity.
TERM OF CBA: REPRESENTATION ASPECT; ALL OTHER PROVISIONS & RENEGOTIATION OF CBA/RETROACTIVITY Art. 253-A. Terms of a collective bargaining agreement. Any Collective Bargaining Agreement that the parties may enter into shall, insofar as the representation aspect is concerned, be for a term of five (5) years. No petition questioning the majority status of the incumbent bargaining agent shall be entertained & no certification election shall be conducted by the Department of Labor & Employment outside of the sixty-day period immediately before the date of expiry of such fiveyear term of the Collective Bargaining Agreement. All other provisions of the Collective Bargaining Agreement shall be renegotiated not later than three (3) years after its execution Any agreement on such other provisions of the Collective Bargaining Agreement entered into within six (6) months from the date of expiry of the term of such other provisions as fixed in such Collective Bargaining Agreement, shall retroact to the day immediately following such date. If any such agreement is entered into beyond six months, the parties shall agree on the duration of retroactivity thereof. In case of a deadlock in the renegotiation of the Collective Bargaining Agreement, the parties may exercise their rights under this Code.
Two-fold purpose of Article 253-A 1) Promote industrial stability & predictability 2) Assign specific timetables wherein negotiations become a matter of right & requirement The effectivity date depends on whether the CBA is the first CBA or renegotiated CBA. The duration depends on whether the subject provision is representational or non-representational. EFFECTIVITY & RETROACTIVITY If the CBA is the first ever in the bargaining unit, the effectivity date is whatever date the parties agree on - perhaps the date the negotiation started, or ended, or whatever.
The date is important particularly in relation to wage increase (if any) because a long retroaction period will mean sizeable back pay to employees. If the CBA is renegotiated to replace the expired one, Article 253-A answers this. - "If the renegotiation is finished the new CBA is concluded within 6 months from the expiry date of the old one, then the new CBA starts to effect on the date following such expiry date . If no new CBA was completed within that 6 month period, the new C BA, when done, will not automatically retroact" If it will retroact at all, the retroaction date will have to be agreed agreed upon by the negotiating panels. - Example: CBA expired on December 31 A new CBA was concluded on March 31 Effectivity Date: January 1. - In the above example, the newly concluded CBA was within the 6 month period from December 31. The new CBA then retroacted to the date following the expiry date of the old CBA How to construe the word "concluded"? - The determining point is the date the parties agreed, not the date they signed. - This is very clear in the words of 253-A. Such article used the word "agreement" The law however is silent as to cover a situation where 6 months have elapsed but the parties have not reached an agreement with respect to effectivity - In one case, the SC said, that any provision of law should apply - SC gave one provision which is the principle of hold over Such principle suggests that in the absence of a new CBA, the parties must maintain the status quo & must continue in full force & effect the terms & conditions of the existing CBA until a new CBA is reached SC also adopted another legal principle which suggests that in the absence of a new CBA, then an arbitrated CBA takes on the nature of any judicial or quasi-judicial award; it operates & maybe executed unless there are legal justifications for its retroactive application. This was adopted in Manila Electric Co. vs Quisumbing In a Motion for Reconsideration, SC said that CBA arbitral awards granted after 6 months from the expiration of the last CBA shall retroact to such time agreed upon by the parties. Absent such agreement as to retroactivity, the award shall retroact to the first day after the 6 months period following the expiration of the last CBA If there was no prior CBA, the SOLE's determination of the date of retroactivity shall control. Duration of CBA Representation Aspect : 5 years "Representation aspect" refers to the identity & status of the majority union that negotiated the CBA as the EBR All other provisions: not more than 3 years "All other provisions" simply refers to the rest of the CBA, economic as well as non-economic other than representational Extension of Effectivity When the extension was approved by the union in a referendum which was properly supervised by DOLE Rivera vs Espiritu The primary question in this case is whether or not the 10 y ear suspension of the CBA is valid SC answered in the affirmative Agreement to suspend was voluntarily entered into by the EBR. The union voluntarily opted for the 10 year suspension of the CBA. This is part of the union's right to exercise collective bargaining
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RIGHT TO FINANCIAL STATEMENTS Article 242 (c) "To be furnished by the employer, upon written request, with its annual audited financial statements, including the balance sheet & the profit & loss statement, within thirty (30) calendar days from the date of receipt of the request, after the union has been duly recognized by the employer or certified as the sole & exclusive bargaining representative of the employees in the bargaining unit, or within sixty (60) calendar days before the expiration of the existing collective bargaining agreement, or during the collective bargaining negotiation" The purpose of such is to better equip the union in preparing for in negotiating with the employer. When can the union make use of such right? 1. After the union has been recognized by the employer as EBR 2. After the union is certified with DOLE a s EBR 3. Within the last 60 days of the life of the CBA 4. During the collective bargaining negotiation The request must be in writing Employer must comply within 30 calendar days after receipt of the union's request
RIGHT TO PARTICIPATE IN POLICY & DECISION MAKING PROCESSES; PRINCIPLE OF CO-DETERMINATION Art. 255. Exclusive bargaining representation & work ers’ participation in policy & decision-making. decision -making. The labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining. However, an individual employee or group of employees shall have the right at any time to present grievances to their employer. Any provision of law to the contrary notwithstanding, workers shall have the right, subject to such rules & regulation as the Secretary of Labor & Employment may promulgate, to participate in policy & decision-making processes of the establishment where they are employed insofar as said processes will directly affect their rights, benefits & welfare. For this purpose, workers & employers may form labormanagement councils: Provided, That the representatives of the workers in such labor-management councils shall be elected by at least the majority of all employees in said establishment.
Workers' Participatory Right: Its Constitutional Meaning The intention of the law makers was to refer to participation in grievance procedures & voluntary modes of settling disputes & NOT to formulation of corporate programs or policies. For a better understanding, look at t he contrasting decisions of the cases below PAL vs NLRC (GR No. 85985)
San Miguel Brewery Sales Force Union vs Ople & SMC (GR No. 53515) & GTE Directories Corp vs Sanchez (GR No. 76219)
PAL completely revised its Code of Discipline & circulated In those two cases, the employers made a policy it among its employees for implementation. The revision without the employees' participation. The policies was made without the employees' participation made centered on the sales operation of the companies. SC ruled in the negative
SC ruled in the affirmative
SC posits that the subject of the revision involves the conduct & discipline of the employees. Such subject affects the employees' tenure; hence, employees' participation is required in shaping the policy .
SC posits that the subject of the policy is with regards to the sales operation of the companies. Being so, it falls on the authority & power of the employer to make such policies even without the participation of the employees.
I guess what you have to remember is participation does not mean co-management of the business . If the
polices would clearly affect the rights of the employees, then their participation in the formulation of such policies is a MUST. After all, they are the ones affected. On the other hand, if the policies would relate to the objectives of the employer in his business, then employees' participation can be dispensed dispensed with. If you look at the situation closely, at the end of the day, the employer still owns the business. If ma-lugi cya sa iyang venture, iyaha ra ng problema. That is why mag-formulate cya ug policies para nindot ug gawas iyang business. If mga in-ani na policies, wala juy magbu-ut nia. Management prerogative ba. Pero if ang subject kai mga noon breaks, uniform, lovelife sa mga workers then dili na cya pwede mag-himu ug policies nga siya-siya lang. Dapat apilun na ang workers kai sila gud affected if ever. P.S. MY OPINION. YOU ARE FREE TO DISAGREE Article 255 deals with the crucial concept of employee participation. Collective bargaining is just one of the forms of employees' participation. It is incorrect to say that the device which secures industrial democracy is collective bargaining & no other. The real aim is employee participation in whatever form it may appear - bargaining or nor bargaining, union or no union Second sentence of Article 255, reserves the right of an individual employee or group of employees to present grievances to their employer at any time. The law provides for another forum - LABOR MANAGEMENT COUNCIL (LMC). This is aside from or instead of a union. Meaning, it can co-exist with a union or it can exist even without a union. BUT LMC can never ever replace a union Under DO No. 40-03 DOLE shall promote the formation of LMC in organized & unorganized establishments to enable the workers to participate in policy & decision making processes in the establishment, insofar as said processes will directly affect their rights, benefits & welfare, except those which are covered by the CBA. In organized establishments , the workers' representatives in the LMC shall be nominated by the EBR In unorganized establishments , the workers' representatives shall be elected directly by the employees at large Individual Grievance A union, LMC or other forum does not replace the individual employee's right to pursue grievances. LLO is a representative of the collective employees, but this fact does not mean that an employee can act only through the representative. Even under investigation, an employee can choose to h&le personally his defense, unassisted by any representative - Such individual right of the employee cannot be taken away by a union's CBL Collective Bargaining Unit (CBU) At the enterprise level, there are 3 democratic devices statutorily embedded to advance the cause of industrial peace namely: 1. Airing of grievance even by an individual employee directly to the employer anytime 2. Participation in policy & decision making by employees, whether unionized or not
3. Collective Bargaining with the employer by unionized employees CBU is the one in number 3 of the above - CBU is that group of jobs & jobholders represented by LLO when it bargains with the e mployer - May comprise of the supervisors OR, SEPARATELY all the rank-&-file population in the company - Under DO No. 40-03 "Bargaining Unit" refers to a group of employees sharing mutual interests within a given employer unit, comprised of all or less than all of the entire body of the employees in the employer unit or any specific occupational or geographical grouping within such employer unit. - Within one CBU, there may be a lot of unions. But only 1 union should represent the entire CBU. This 1 union is the EBR selected by the CBU via Certification Election or Consent Election. If only 1 union in the establishment, then Voluntary recognition The law requires that the CBU be "appropriate" but it does not explain what it means. Jurisprudence however would tell us that "appropriate" would mean that a CBU must be comprised of constituents constituents enjoying a community of interest . The fundamental factors in determining the appropriate collective bargaining unit are : - The will of the employees ( Globe Doctrine ); - Affinity & unity of the employees’ interest, such as substantial similarity of work & duties, or similarity of compensation & working conditions ( Substantial Mutual Interests Rule ); - Prior collective bargaining history; & - Similarity of employment status Bargaining history is not a decisive factor - Other factors must be considered. The test of grouping is community or mutuality of interest. This is so because the basic test of an asserted bargaining unit's acceptability is whether or not it is fundamentally the combination which will best assure to all employees the exercise of their collective bargaining rights Confidential employees are excluded in the bargaining unit of the rank & f iles - Remember the Doctrine of Necessary Implication Temporary or Part time employees - In determining whether temporary or part time employees are sufficiently identified with the regular employees in the bargaining unit to have a community of interest with the regular employees, so as to be properly included in the CBU, one of the important factors is the reasonable likelihood that the temporary or part time employees will eventually become adequately identified in employment with the other members of the CBU . Seasonal Employees - The full-time seasonal employees who have a reasonable expectation of substantial seasonal employment from year to year have been held properly includable in the unit. But part time seasonal employees who receive none of the fringe benefits enjoyed by full time employees have insufficient common interest with the full time employees to be included in the same CBU. Probationary Employees - The fact that an employee is given a classification such as beginner, trainee, or probationary employee, & the fact that contemplation of permanent tenure is subject to satisfactory completion of an initial trial period are insufficient to warrant such employees exclusion f rom a CBU. Single or Employer unit is preferred - One employer enterprise constitutes only one CBU. The more solid employees are, th e stronger is their bargaining capacity. Two corporations cannot be treated as a single CBU even if their business is related. - Subsidiaries or corporations formed out of former divisions of a mother company following a bona fide reorganization may constitute a separate CBU. Determining the scope or membership of the CBU is significant & far-reaching because it leads to the determination also of: - The employees who can vote in CE - The employees to be represented in CBA - The employees who will be covered by the resulting CBA Distinguishing the CBU from the union is important because: - In CE, the voters are the CB U, whether union or nonunion members - In CBA ratification, the voters are the CBU, not just the union members - In strike voting, the voters are the members of the EBR, not the whole CBU
RIGHT TO ENGAGE IN PEACEFUL CONCERTED ACTIVITIES Art. 263. Strikes, picketing & lockouts. a. It is the policy of the State to encourage free trade unionism & free collective bargaining. b. Workers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit & protection. The right of legitimate labor organizations to strike & picket & of employers to lockout, consistent with the national interest, shall continue to be recognized & respected. However, no labor union may strike & no employer may declare a lockout on grounds involving inter-union & intra-union disputes. c. In case of bargaining deadlocks , the duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lockout with the Ministry at least 30 days before the intended date thereof. In
cases of unfair labor practice , the period of notice shall be 15 days & 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 of dismissal from employment of union officers duly elected in accordance with the union constitution & by-laws, which may constitute union busting, where the existence of the union is threatened, the 15-day cooling-off period shall not apply & the union may take action immediately . d. The notice must be in accordance with such implementing rules & regulations as the Minister of Labor & Employment may promulgate. e. During the cooling-off period, it shall be the duty of the Ministry to exert all efforts at mediation & conciliation to effect 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 a majority of the total union membership in the bargaining unit concerned, obtained by secret ballot in meetings or referenda called for that purpose. A decision to declare a lockout must be approved by a majority of the board of directors of the corporation or association or of the partners in a partnership, obtained by secret ballot in a meeting called for that purpose. The decision shall be valid for the duration of the dispute 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 intended strike or lockout, subject to the cooling-off period h erein provided. g. When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor & Employment may assume jurisdiction over the dispute & decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return-to work & the employer shall immediately resume operations & readmit all workers under the same terms & conditions prevailing before the strike or lockout. The Secretary of Labor & Employment or the Commission may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same. In line with the national concern for & the highest respect accorded to the right of patients to life & health, strikes & lockouts in hospitals, clinics & similar medical institutions shall, to every extent possible, be avoided, & all serious efforts, not only by labor & management but government as well, be exhausted to substantially minimize, if not prevent, their adverse effects on such life & health, through the exercise, however legitimate, by labor of its right to strike & by management to lockout. In labor disputes adversely affecting the continued operation of such hospitals, clinics or medical institutions, it shall be the duty of the striking union or locking-out employer to provide & maintain an effective skeletal workforce of medical & other health personnel, whose movement & services shall be unhampered & unrestricted, as are necessary to insure the proper & adequate protection of the life & health of its patients, most especially emergency cases, for the duration of the strike or lockout. In such cases, therefore, the Secretary of Labor & Employment may immediately assume, within twenty four (24) hours from knowledge of the occurrence of such a strike or lockout, jurisdiction over the same or certify it to the Commission for compulsory arbitration. For this purpose, the contending parties are strictly enjoined to comply with such orders, prohibitions &/or injunctions as are issued by the Secretary of Labor & Employment or the Commission, under pain of immediate disciplinary action, including dismissal or loss of employment status or payment by the locking-out employer of backwages, damages & other affirmative relief, even criminal prosecution against either or both of them. The foregoing notwithstanding, the President of the Philippines shall not be precluded from determining the industries that, in his opinion, are indispensable to the national interest, & from intervening at any time & 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 to voluntary arbitration. i. The Secretary of Labor & Employment, the Commission or the voluntary arbitrator shall decide or resolve the dispute, as the case may be. The decision of the President, the Secretary of Labor & Employment, the Commission or the voluntary arbitrator shall be final & executory ten (10) calendar days after receipt thereof by the parties.
Section 3, Article XIII, 1987 C onstitution Section 3. The State shall afford full protection to labor, local & overseas, organized & unorganized, & promote full employment & equality of employment opportunities for all . It shall guarantee the rights of all workers to self-organization, collective bargaining & negotiations, & peaceful concerted activities, including the right to strike in accordance with law xxx
Article XIII Section 3 of the Constitution commands the state to guarantee the rights of all workers to selforganization, collective bargaining & negotiations & peaceful concerted activities including the right to strike in accordance with law.
According to Bernas, "peaceful concerted activities" includes everything short of strike. The phrase "in accordance with law" furthermore applies not only to the right to strike but also to the other rights mentioned in that provision. By virtue of such phrase, the state can enact reasonable laws which can expand or even diminish the coverage of the right to strike. But injunction must be reduced to the barest minimum because the right to strike is a constitutional stature. "Concerted" - when an activity is planned & accomplished by people a cting together. But there is also an opinion that even an individual, acting alone, maybe deemed engaged in "concerted activity" (e.g. making of leaflets to induce other employees to join his cause) Jurisprudence however defines "concerted" as an activity undertaken by 2 or more employees, or by one on behalf of others. FORMS OF PEACEFUL CONCERTED ACTIVITIES 1. Strike Any temporary stoppage of work by the concerted action of the employees as a result of an industrial or labor dispute. It consists not only of concerted work stoppages but also slowdowns, mass leaves, sit-downs, attempts to damage, destroy or sabotage plant equipment & facilities & similar activities 2. Picketing “peaceful picketing” is the right of workers to peacefully march to & fro before an establishment involved in a labor dispute generally accompanied by the carrying & display of signs, placards & ba nners intended to inform the public about the dispute 3. Boycott The concerted refusal to patronize an employer’s goods or services & to persuade other to a like refusal. 4. Lockouts Temporary refusal of any employer to furnish work as a result of industrial or labor dispute, it is an employer's act of excluding employees who are union members from the plant STRIKE & LOCK OUT; BASIS; CONSTITUTTIONAL OR STATUTORY STRIKE Constitutional basis: Section 3, Article XIII, 1987 Constitution Cessation of work by employees in an effort to get more favorable terms for themselves, or to work at their customary rate of speed, until the object of the strike is attained by the employer's granting their demanded concessions. In its ordinary connotation, a combined effort on the part of a body of workmen employed by the same employer to enforce a demand for higher wages, shorter hours, or any other concession by stopping work at a body at a pre-arranged time & refusing to resume work until the demanded concession shall have been granted In Article 212 (o), strike means any temporary stoppage of work by the concerted action of the employees as a result of an industrial or labor dispute Characteristics: 1. There must be an established relationship between the strikers & the person or persons against whom the strike is called 2. There must be EE relationship 3. The existence of a dispute between the parties & the utilization by labor of the weapon of concerted refusal to work as a means of persuading, or coercing compliance with the working men's demands 4. The contention advanced by the workers that although work ceases, the employment relation is deemed continued albeit in a state of belligerent suspension 5. There is temporary work stoppage 6. The stoppage was due to the workers' concerted activity 7. The striking group is LLO, & in the case of bargaining deadlock, it is the EBR The idea behind a strike is that a company engaged in a profitable business cannot afford to have its production or activities interrupted, much less paralyzed. Any interruption or stoppage of production spells loss, even disaster. The capita invested in the business would prove to be unproductive during a strike. Knowing this, the strikers seek to strike in order to interrupt the business. The employer employer company is on the defensive. It almost wants the strike stopped & the strikers back to work so as to resume & continue production. Because of this threat or danger of loss to the company , it does not infrequently give in to the demands of the strikers, just so it can maintain the continuity of production. The right to strike is a constitutional & legal right of the workers as employers have the right to lockout, all within the context of labor relations & collective bargaining. Subject to the enactment by Congress of amendments or a new law on labor relations, the provisions of existing laws shall govern the exercise of those rights. - It is thus regulated by law because it creates a disquieting effect, not only between the labor & management, but also of the over arching public interest. So when the workers strike, it causes not only interruption in the employers business, but also affects the public at large. Because if there is no production of goods & services, the public will also be adversely affected; for that reason it has to be regulated by law. - Example of such law is the Labor code it prescribes a lot of requirement before you can stage a strike, another law is the wage rationalization law. The wage rationalization law which prohibits a strike
involving wage distortion issues. When there is a wage distortion, we learn in labor standards on how to resolve the same, whether it is an organized or an unorganized establishment. The solution there is not to strike, so when you resort to strike, the strike will be considered illegal. It can also be regulated by a contract, so if you have a no strike no lock out clause in your CBA, then the parties are bound to observe that. If they violate that it, then they violate the CBA which as you know is an Unfair Labor Practice. A valid strike needs a labor dispute. Labor Dispute includes any controversy or matter concerning terms & conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms & conditions of employment, regardless of whether the disputants stand in the proximate relation of employer & employee. Where there is no dispute or the dispute has nothing to do with the terms & conditions of employment in the establishment, the stoppage of work by its employees has no basis in labor law and the employees who engage in the work stoppage actually commit an illegal strike and take the risk and consequences of an illegal act. A sympathetic strike is illegal because of the absence of labor dispute “Welga ng Bayan” is in the nature of a general strike which is but an extended sympathetic strike. This is an illegal work stoppage However, in the realm of political freedom, a general strike may be defensible. As long as the strikers would balance it with their obligations in the work place. They must not effect a stoppage of work, such stoppage is not sanctioned by law. Avoidance of Strike Before employees may validly hold a strike, available m easure or remedies must first be exhausted. This is analogous to “exhaustion of a dministrative remedies” Employees are required to exhaust available means in settling the dispute before resulting to strike. This means that a strike is proper only when available remedies are not fruitful. Such remedies include: Grievance procedure Voluntary Arbitration Conciliation, Mediation, Compromise to Avoid Strike An issue awaiting resolution in arbitration proceedings, whether compulsory or voluntary cannot serve as a basis for strike. Arbitration is a legal device to forestall compulsive action over a dispute. To resort to strike despite ongoing arbitration is an act amounting to sabotage of a peaceful conciliatory process. NCMB may upon request of either or both of the parties or upon its own initiative, provide conciliation & mediation services to labor disputes other than notices of strike or lockouts. Conciliation cases which are not subjects of notices of strikes or lockouts shall be docketed as preventive mediation cases NCMB has the power to require the parties’ appearance in conciliation meetings Pre-mature Strike is when the union or strikers failed to exhaust available remedies or strikes which are conducted without sufficient notice to the employer or DOLE “Until all the remedies & 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 which transcend the rights of the immediate parties.” Protection of Strike The right to strike is given the following protection: 1) It is generally not subject to la bor injunction or restraining order 2) Employees may not be discriminated against merely because they have exercised the right to strike 3) The use of strike-breakers is p rohibited A strike-breaker is a person person employed by the employer who obstructs, obstructs, impedes, or interferes by force, violence, coercion, threats, or intimidation of any peaceful picketing by the employees during any labor controversy affecting wages, hours or conditions of work or in the exercise of the right to self-organization or collective bargaining. 4) Mere participation in the strike does not sever the e mployment relationship Employees who peacefully struck for a lawful objective were not liable to their employer even though the strikes shut him down, bankrupted him, or put him out of business, and even though it also caused enormous or irreparable damage to hundreds of thousands of innocent persons not involved in the str ike. Involvement of the AFP/PNP in strike situations is limited to the maintenance of peace & order, enforcement of laws and legal orders of duly constituted authorities and the performance of specific functions provided by the law The personnel detailed as peace-keeping force should be in uniform with proper name cloth at all times Observe strict neutrality in dealing with both parties They should not be stationed in the picket or confrontation line but should be stations such that their presence may deter the commission of criminal acts from either side.
Maintain a 50 meter radius from the picket line, EXCEPT, if the 50 meter radius includes a public thoroughfare, they may stationed themselves in such thoroughfare for the purpose of insuring the free flow of traffic
Status of Strikers -
The declaration of strike does not a mount to renunciation of the employment relation. The EE relationship is merely suspended as the work stoppage is not permanent but only temporary. A Striking employee is still an employee The employee status remains but the effects of employment are suspended Therefore, a striking employee is not entitled to his wage ( No work, No Pay)
LOCKOUT
If employees can strike, employer can lockout. Lockout means the temporary refusal of any employer to furnish work as a result of industrial or labor dispute, it is an employer's act of excluding employees who are union members from the plant. Strike & Lockout are similar. They both connote temporary stoppage of work. The difference is in the identity of the doer. - Strike is done by employees or labor union - Lockout is resorted to by the employer The two are similar also in the sense that they occur because of & in relation to a labor or industrial dispute involving the parties. - An industrial or labor dispute includes any controversy or matter concerning terms & conditions of employment or the association or representation of persons in negotiating, fixing maintaining, changing or arranging the terms & conditions of employment, regardless of whether the disputants stand in the proximate relation of employer & employee.
KINDS OF STRIKE; 6 CATEGORIES OF ILLEGAL STRIKE 6 CATEGORIES OF ILLEGAL STRIKE (from TOYOTA MOTOR PHILS WORKERS ASSO. VS. NLRC, G.R. No. 158786, October 19, 2007) 1) When it is contrary to a specific prohibition of law Remember that Government employees employees have the right to organize BUT they do not have the the right to strike. Therefore, a strike held by them is an example of a strike prohibited by law. 2) When it violates a specific requirement of law A strike or lockout must observe certain procedural requirements in order to enjoy the protection afforded by law Requirements include: Notice of Strike Cooling Off Period Strike Vote Strike Vote Report Procedural Requirements are mandatory. Non-observance thereof makes the strike illegal. The language of the law leaves no room room for doubt that the cooling off period period & the 7 day strike ban after the strike vote report were intended to be mandatory Work Slowdown & Overtime Boycott is a strike on installment Even though the employees continued to work and remain at their positions & accept the wages paid to them, they at the same time select what part of their allotted tasks they are to perform of their own volition or refuse openly or secretly to the employer’ s damage to do their work, in other words, “ work on their own terms” Strike during arbitration is illegal No strike or lockout can be declared while a case is pending involving the same grounds for strike or lockout If the NCMB declares the notice of stri ke as “ appropriate for preventive mediation ”, the effect of such declaration is that the case is dropped from the docket of notices of strike as provided in the NCMB rules, as if there is no notice of strike. During the Preventive Mediation proceedings, no strike could be legally declared If the strikers, through their representatives, had misled, not to say deceived the Industrial Court because despite their assurances that they would not go on strike and did not even have the intention of striking, they went on strike just the same. It was held that the strike was equivalent to a violation or disobedience of an order of the court, hence illegal. (Almeda vs CIR) A strike or walkout on the basis of grievances which have not been submitted to the grievance committee, as stipulated in the CBA is premature and illegal 3) When it is declared for an unlawful purpose The law recognizes 3 strikeable grounds that may validly support a strike: Deadlock in Collective Bargaining; ULP; Flagrant and/or malicious refusal to comply with the economic provisions of the collective bargaining agreement A strike incident to collective bargaining is a lawful purpose. Laborers may strike to better their working conditions, to secure an advance in wages or shorter periods of labor, to secure reemployment of a member of a union deemed to have been improperly discharged, to secure the discharge of a fellow employee deemed obnoxious, or to obtain improved relations with their employers. The legality of a strike is not dependent dependent upon the ability of the management to pay.
To make the legality or illegality if strikes dependent solely on whether the demands of laborers my or may not be granted, is in effect to outlaw altogether an effective means for securing better working conditions. Union busting or interference with the formation of a union, constitutes ULP, hence a valid ground for the declaration of strike. A ULP strike in good faith is a lawful purpose. There are two tests in determining the existence of a ULP strike: i. Objectively, when the strike is declare in protest of ULP which is found to have been actually committed ii. Subjectively, when a strike is declare in protest of what the union believed to be ULP committed by the management, and circumstances warranted such belief in good faith, although found subsequently as not committed A strike to compel recognition of & bargaining with the majority union is a lawful purpose A strike for union recognition without having proven majority status is unlawful Notice the difference of this to the first one. In the for mer, majority status was proven while in this situation, the majority status of the union is absent. A minority union cannot lawfully undertake a strike against the employer; if one has already started it must be halted. Neither can it picket to compel bargaining. No labor dispute can validly exist between a minority union and the employer A strike held to compel recognition while a case is unresolved is illegal If a strike is declared for a trivial, unjust or unreasonable purpose, or if it is carried out through unlawful means, the law will not sanction it and the court will declare it illegal with the adverse consequences to the strikers A strike motivated by an unreasonable demand of the labor union for the dismissal of a fellow employee is illegal & unjustified A strike on non-strikeable issue is unlawful 4) When it employs unlawful means in the pursuit of its objective A strike has to be pursued within the bounds of law. A strike does not suspend the binding force of the law; it does not put the strikers above the law or above their fellowmen. The law imposes limits on the conduct of strike. These limits are collectively known as prohibited acts embodied in Article 264 of the Labor Code To be discussed separately later 5) When it is declared in violation of an existing injunction Usually happens in “National Interest” cases where the SOLE assumes jurisdiction. In such cases, there is an automatic injunction and a return to work order. Extensively discussed in Assumption of Jurisdiction of SOLE 6) When it is contrary to an existing agreement , such as a no-strike clause or conclusive arbitration clause A “no strike clause” is usually contained in a CBA. Discussed in the succeeding topics KINDS OF STRIKE EXTENT GENERAL STRIKE extends over LOCAL STRIKE is one undertaken by workers in a particular a whole community, province, enterprise, locality, or occupation. It usually involves only one state, or country. union or only one industry. NATURE OF THE ACT SIT-DOWN STRIKE accurately PARTIAL/QUICKIE STRIKE , takes STRIKE PROPER defined as a strike in the form of intermittent, traditional sense, to which is unannounced work stoppage, added the element of trespass including slowdowns, by the strikers upon the unauthorized extension of rest property of the employer. This periods, & walkouts for portions is a combination of a strike plus of a shift or for entire shifts. a refusal of the strikers to leave the plant & machines, & the refusal to permit the latter to be operated. DEGREE OF EMPLOYEE PRIMARY STRIKE is one SECONDARY STRIKE occurs when SYMPATHETIC STRIKE INTEREST declared by the employees a group of employees refuse in occurs when workers who have a direct & immediate concert to remain at work for an cease to work in sympathy interest, where economic or employer, not because of any with the workers of otherwise, in the subject of the complaint over their labor another employer, or in dispute, which exists between standards under him, but order to put pressure them & the employer. because he persists in dealing upon the government or rd e.g. strike for raise in the with a 3 person against whom in order to paralyze the wages they have a grievance present economic & social systems. This is illegal. PURPOSE OR NATURE OF ECONOMIC STRIKE is intended ULP STRIKE is called against the ULP of the employer, usually EMPLOYEE INTEREST to force wage & other for the purpose of making him desist from further committing concessions from the such practices. employer, which he is not required by law to grant
e.g. securing higher wages, shortening of working hours
NCMB MANUAL OF PROCEDURE FOR CONCILIATION & PREVENTIVE MEDIATION 3rd Yr, 1st Sem Law\Labor Relations\EXTRAS\NCMB MANUAL OF PROCEDURES FOR CONCILIATION AND PREVENTIVE MEDIATION CASES.pdf The requisites of a valid strike are: 1) A notice of strike 2) Observance of the cooling off period 3) A strike vote must be approved by a majority of the total union membership in the bargaining unit concerned by secret ballot in a meeting called for that purpose 4) Notice must be given to DOLE of the results of the voting at least 7 days before the intended strike
FORM: NOTICE OF STRIKE & LOCKOUT; CONTENTS A notice of strike & lockout must be in the prescribed form with the required contents (Rule IV Sec 2): Names and addresses of the employer and the union involved Nature of the industry to which the employer belongs Number of union members and of the workers in the bargaining unit Other relevant data as may facilitate the settlement of the dispute, such as a brief statement or
enumeration of all pending labor disputes involving the sa me parties In case of bargaining deadlocks , the notice shall as far as practicable, further state: The unresolved issues in the bargaining negotiations and be accompanied by the w ritten proposals of the union The counter-proposals of the employer The proof of a request for conference to settle the differences In cases of unfair labor practices , the notice shall, as far as practicable, state: The acts complained of The efforts taken to resolve the dispute amicably Any notice which does not conform with the requirements of this and the foregoing sections shall be deemed as not having been filed and the party concerned shall be so informed by the regional branch of the Board
WHERE TO FILE AND WHO MAY FILE A Notice of Strike shall be filed with DOLE specifically the regional branch of the National Conciliation & Mediation
Board (NCMB) The question of “who files a notice of strike” is synonymous with “who can strike” Only a LLO can legally hold a strike If the reason for the intended strike is ULP by the employer Notice should be filed by the EBR of the establishment In an UNORGANIZED ESTABLISHMENT , then a notice maybe filed by LLO even if unrecognized If the reason for the intended strike is bargaining deadlock Only the EBR has the legal right to hold a strike An employer can file a notice of lockout A cooling-off period must be observed . This is a time gap required by the NCMB Manual to cool off tempers between the filing of notice and the actual execution of strike or lockout. This may not be suspended upon by the parties. In cases of bargaining deadlock – 30 days In cases of ULP – 15 days In case of unfair labor practice involving the dismissal from employment of union officers duly elected in accordance with the union’s union ’s CBL which may constitute union-busting where the existence of the union is threatened, the fifteen day cooling-off period shall not apply and the union may take action immediately after the strike vote is conducted and the results thereof submitted to the regional branch of the Board In cases where Notice of Strike by the union via registered mail to the employer – the beginning of the cooling-off period shall be the date of receipt by the employer During the cooling-off period, the NCMB upon the receipt of Notice of Strike, mediates and conciliates the parties. The board shall encourage the parties to submit the issues to voluntary arbitration Union busting There is union busting when the union officers who were duly elected in accordance with the CBL are dismissed from employment and there is a threat to the union If the dispute remains unsettled after the lapse of the cooling off period & the 7 day reporting period, the labor union may strike or the employer may lock out its workers. The regional branch of NCMB shall continue mediating and conciliating. Conciliator-Mediator can only suggest solutions. He is not an arbitrator or an adjudicator who may impose his decisions upon the parties
STRIKE VOTE / STRIKE VOTE REPORT Before a strike or lockout may actually be started, a strike or lockout vote should be taken by secret balloting , in meetings or referenda specially called for that purpose .
The NCMB may, at its own initiative or upon the request of any affected party, supervise the conduct of secret balloting. The union or the employer shall furnish NCMB the notice of meetings referred to at least 24 hours before such meetings as well as the results of the voting at least 7 days before the intended strike or lockout, subject to the cooling off period. The 15 to 30 day cooling off period is designed to afford the parties the opportunity to amicably resolve the dispute with the assistance of the NCMB The 7 day strike ban is intended to give DOLE an opportunity to verify whether the projected strike really carries the imprimatur of the majority of the union members The decision to declare a strike requires the secret ballot approval of majority of the total union membership in the bargaining unit concerned . The needed vote is majority of the total union membership, not just majority of the members present in the meeting or referenda Majority of the union membership, not of the bargaining unit The members of the minority union may or may not be c alled to the strike vote meeting. The needed vote is 50% plus 1 of the total union membership For a lockout, it needs the secret ballot concurrence of majority of the directors or partners The employer is not invited during the conduct of strike vote The purpose of the Strike Vote is to ensure that the decision to strike broadly rests with majority of the union and not with a mere of minority The result of the strike or lockout should be reported to the NCMB at least 7 days before the intended strike or lockout. This means that after the strike vote is taken and the result reported to NCMB, 7 days must pass before the union can actually commence the strike This 7 day reporting period is intended to give the DOLE an opportunity to verify whether the projected strike really carries the imprimatur of the majority of the union members. A strike held within the 7 day period is illegal The submission of a strike vote report gives assurance that a strike vote has been taken and that if the report concerning it is false, the majority of the members can take a ppropriate remedy before its too late. The requirement of giving notice o f the conduct of a strike vote to NCMB at least 24 hours before the meeting for that said purpose is designed to: a) Inform the NCMB of the intention of the union to conduct a strike vote b) Give the NCMB ample time to decide on whether or not there is a need to supervise the conduct of the strike vote to prevent any acts of violence o r irregularities c) Give NCMB ample time to deploy the officer in case they decide to do so
GROUNDS FOR STRIKE & LOCKOUT – VALIDITY OF “NO STRIKE CLAUSE” A strike or lockout may be declared under the following grounds: 1) 2) 3)
Deadlock in Collective Bargaining ULP Flagrant and/or malicious refusal to comply with the economic provisions of the collective bargaining agreement “No Strike Clause” or “No lockout Clause” is one of the political aspects that the parties enter into during CBA negotiation It provides that disputes between the parties, including alleged ULP act by the employer should be resolved through VA instead of through a strike. This clause is binding and valid . respect by the parties of the CBA and by the labor A no strike/lockout clause generally deserves respect authorities. Such stipulation applies even to a deadlock in renegotiating the economic provisions of the CBA. If the CBA stipulates a no strike/lockout clause & that the disputes between the parties must be resolved through a grievance machinery, including VA, a notice of strike filed by the union violates such agreement. The NCMB should consider such notice not duly filed & direct the union to avail itself of the grievance machinery and VA. A similar posture should be taken by the SOLE instead of assuming jurisdiction over the dispute Strikes held in violation of no strike/lockout clause are considered illegal. If members disregard a no strike clause, union may become liable over such act. A no strike clause is binding not only upon the union, but also its individual members The SC has held that a no strike clause in a CBA establishes a rule of conduct or condition of employment, the violation which by an employee justifies discipline or discharge. An employer may maintain an action against a union for damages resulting from a violation of a no strike clause, even though the employer grievances relating to the same work stoppage are arbitrable. A union which agrees to an express no strike clause impliedly agrees to undertake every reasonable means to induce members participating in an authorized strike to return to work. If the strike or stoppage is not initiated or supported by the union, then it is not violative of a no strike clause A strike during the term of the CBA is not ipso facto a violation of a no strike clause in the CBA
If the CBA does not provide for arbitration of disputes, the courts will not imply a no strike clause. If the CBA’s preamble stated a contractual purpose to preve nt lockouts, boycotts, & strikes does not constitute a waiver of the right to strike However, if a CBA establishes arbitration as a means of settling disputes, such as from an agreement that disputes shall be settled exclusively and finally by compulsory arbitration or an agreement that the arbitration procedure shall be the exclusive means of adjudicating all other matters , then a no strike pledge is inferable. NO STRIKE CLAUSE NOT BINDING UPON A NEWLY CERTIFIED BARGAINING AGENT The substitutionary doctrine (remember? It was mentioned earlier ), cannot be invoked to support the contention that a newly certified collective bargaining agent automatically assumes all the personal undertakings such as a no strike clause in the collective bargaining agreement deposed by the union . To consider that a new union is bound by such would violate the legal maxim that res inter alios acta alios nec prodest nec n ocest . BUT the new union could always voluntarily assume all the personal undertakings made by the former agent. Strike or lockout is recognized as a valid weapon in collective bargaining. Either of them maybe declared to bring pressure upon the other party, where an impasse has arisen, during bargaining negotiations or when one party commits ULP, subject to statutory requirements. Strike or lockout cannot be the subject of injunction except when there is assumption of jurisdiction by SOLE and where prohibited acts are committed by the strikers. Lockout or strike is proper only when: 1) Notice of intention to declare a strike or lockout has been filed with DOLE 2) Compliance with the cooling off period 3) An impasse has resulted 4) The strike or lockout is not discriminatory STRIKEABLE ISSUE & NON-STRIKEABLE ISSUE Non-strikeable Issues: 1) Inter-union and intra-union disputes - The law provides for med-arbitration procedures for inter/intra union dispute 2) Violations of labor standards law, UNLESS Article 248, particularly clauses C, F, or I is also violated - In the case of violation of labor standards laws, the law provides for labor enforcement procedures 3) Issues already brought to voluntary or compulsory arbitration - Arbitration, by its nature, is a legal device to forestall compulsive action over a dispute. To resort to a strike despite on going arbitration is an act amounting to sabotage of a peaceful conciliatory process. The law disdains it. 4) Mere violation of the collective bargaining agreement involving political provisions - Except flagrant and/or malicious refusal to comply with the economic provisions of the collective bargaining agreement 5) Questions of interpretation or implementation of the Agreement and company personnel policies 6) Disputes arising from the wage distortion resulting from the wage order 7) Physical Rearrangement of Office - Reliance Surety & Insurance Co vs NLRC In effecting a change in the seating arrangement in the offices of the underwriting department, the employer merely exercised a reasonable prerogative that the employees could not validly question, much less assail as act of ULP 8) Company’s Sale Evaluation Policy - GTE Directories Corporation vs Sanchez The company’s adoption of a new “Sales Evaluation and Production Policy” was within its management prerogative to regulate, according to its own discretion and judgment, all aspects of employment including the manner 9) Cases pending at the DOLE, BLR, NLRC, NWPC, Office of the Secretary, Voluntary Arbitrator, CA, SC 10) Execution & Enforcement of final orders, awards, resolutions in no. 9 above 11) Any issue covered by a NO STRIKE COMMITMENT in a duly executed CBA No strike or lockout maybe declared without first having filed a Notice of Strike or lockout. No strike or lockout maybe declared without the necessary strike or lockout vote having been obtained & reported to the board No strike maybe declared after assumption of jurisdiction by SOLE or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of the cases involving the same grounds for strike or lockout
ASSUMPTION OF JURISDICTION/SEC/DOLE/ NATURE OF POWER; SCOPE; EFFECT OF ASSUMPTION Article 263 (g) When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor & Employment may assume jurisdiction over the dispute & decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification,
all striking or locked out employees shall immediately return-to work & the employer shall immediately resume operations & readmit all workers under the same terms & conditions prevailing before the strike or lockout. The Secretary of Labor & Employment or the Commission may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same. In line with the national concern for & the highest respect accorded to the right of patients to life & health, strikes & lockouts in hospitals, clinics & similar medical institutions shall, to every extent possible, be avoided, & all serious efforts, not only by labor & management but government as well, be exhausted to substantially minimize, if not prevent, their adverse effects on such life & health, through the exercise, however legitimate, by labor of its right to strike & by management to lockout. In labor disputes adversely affecting the continued operation of such hospitals, clinics or medical institutions, it shall be the duty of the striking union or locking-out employer to provide & maintain an effective skeletal workforce of medical & other health personnel, whose movement & services shall be unhampered & unrestricted, as are necessary to insure the proper & adequate protection of the life & health of its patients, most especially emergency cases, for the duration of the strike or lockout. In such cases, therefore, the Secretary of Labor & Employment may immediately assume, within twenty four (24) hours from knowledge of the occurrence of such a strike or lockout, jurisdiction over the same or certify it to the Commission for compulsory arbitration. For this purpose, the contending parties are strictly enjoined to comply with such orders, prohibitions &/or injunctions as are issued by the Secretary of Labor & Employment or the Commission, under pain of immediate disciplinary action, including dismissal or loss of employment status or payment by the locking-out employer of backwages, damages & other affirmative relief, even criminal prosecution against either or both of them. The foregoing notwithstanding, the President of the Philippines shall not be precluded from determining the industries that, in his opinion, are indispensable to the national interest, & from intervening at any time & assuming jurisdiction over any such labor dispute in order to settle or terminate the same.
“Industry indispensable to national interest” could be Hospitals, schools, Airline Companies, Shipping companies, Banks, Pharmaceutical Companies, or Telecommunication companies. The Labor Code vests the President of the Philippines and the Secretary of Labor & Employment almost unlimited discretion to determine what industries maybe considered as indispensable to the national interest. According to the Labor Code, when there is a labor dispute causing or likely to cause a strike affecting national interest, SOLE may: 1) either assume jurisdiction 2) certify the dispute to NLRC for compulsory arbitration
SOLE may act on his own initiative or upon petition by any of the parties. Such assumption or certification has the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order If one has already taken place at the time of assumption or certification , all striking or locked out employees shall immediately return to work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout Use of the power automatically stops a strike or prevents an impending strike The assumption or certification order has the effect of regulating the management prerogative of determining the assignment or movement of employees. In line of the above, if there is a pending resolution of the dispute and a company layoffs workers, it is considered as illegal because it is violative of the a ssumption order. The assumption of jurisdiction by SOLE is in the nature of a police power measure SOLE acts to maintain industrial peace. Thus, his assumption or certification is not intended to impede the workers’ right to strike but to obtain a speedy settlemen t of dispute. This is an example of automatic injunction . BUT, this is strictly limited to national interest cases. The issuance of injunction in national interest cases is an exception to Article 254 which, in general, forbids labor injunctions. Remember, that even in these cases, the parties retain the option to submit the dispute to VA SOLE may assume jurisdiction over labor disputes involving a cademic institutions The ongoing labor dispute at the school adversely affects the national interest. A work stoppage in a school unduly prejudices the students and will entail great loss in terms of time, effort & money to all concerned. More important, is the fact that the school is engaged in the promotion of the physical, intellectual & emotional wellbeing of the country’s youth. In GTE Directories vs Sanchez, where the company was involved in the production & publication of telephone directories, the SC said that such activity can scarcely be described as an industry affecting the national interest. SC further said that its services, while of value, cannot be deemed to be in the same category of such essential activities such as “the generation or distribution of energy” or those undertaken by “banks, hospitals, and export -oriented industries”. It cannot be regarded as playing as vital a role in communication as other mass media . The General banking Law, revised in 2000, explicitly classifies BANKING as an industry indispensable to national interest. RA No. 8791 Sec 22. Strikes & Lockouts . – The banking industry is hereby declared as indispensable to the national interest and, notwithstanding the provisions of any law to the contrary, any strike or lockout involving banks, if unsettled unsettled after 7 calendar days days , shall be reported by the Bangko Sentral to the Secretary of Labor who may assume jurisdiction over the dispute or decide it or certify the same to the NLRC for compulsory arbitration. However, the President of the Philippines may at any time intervene & assume jurisdiction over such labor dispute in order to settle or terminate the same.
SOLE’s assumption of jurisdiction maybe exercised without the necessity of prior notice or hearing given to any of the parties disputants. This is due to the exigency of the situation in relation to national interest SOLE may immediately take action where a strike has effectively paralyzed a vital industry without waiting for the filing of notice of strike The power of SOLE to assume jurisdiction is CONSTITUTIONAL Article 263 (g) was enacted by Congress pursuant to the police power of the state. And we all know that police power, together with the power of eminent domain and the power of taxation is an inherent power of government & does not need to be expressly conferred by the constitution Certification to NLRC “Certified Labor Disputes” are cases certified to the Co mmission for compulsory arbitration under Article 263 (g) dealing about national interest cases A national interest dispute may be certified to the NLRC even BEFORE BEFORE a strike strike is declared. The law does not require the existence of a strike, but only an industrial dispute Such industrial dispute is not denied by the employer & the union Officials of DOLE previously tried to conciliate the disputants but without success The NLRC here is not sitting as a judicial court, but as an administrative body charged with the duty to implement the order of SOLE . As the implementing body, its authority did not include the power to amend the Secretary’s order. NLRC must act within the earliest time possible & with the end view that its action would not only serve the interests of the parties alone, but would also have favorable implications to the community and to the economy as a whole. Effects of Defiance Non-compliance with the certification order of SOLE shall be considered as an illegal act committed in the course of the strike or lockout, and shall authorize the NLRC to enforce the same under pain of immediate disciplinary action, including dismissal or loss of employment status or payment by the locking out employer of backwages, damages, and/or other affirmative relief, even criminal prosecution against liable parties. An assumption or certification order is immediately effective even without a return to work order. Assumption & Certification orders are executory in character are to be strictly complied with by the parties even during the pendency of any petition questioning their validity. Certification of the dispute to the NLRC makes the continuation of the strike illegal, provided that the parties are duly notified of the certification order. Notice to the parties is a prerequisite even if the order states that it is “immediately executory” In labor cases, both the party & its counsel must be duly served their separate copies of the order, decision or resolution, unlike in ordinary judicial proceedings where notice to counsel is deemed notice to party. Refusal to receive the Assumption of Jurisdiction Order amounts to a defiance of the order, which defiance makes the continuation of the strike an illegal act, thus subjecting the strikers to loss of employment status. The strikers should resume to work immediately upon receipt or constructive receipt of the order. A grace period may be given but that is not required by law. The mere issuance of an assumption order by the SOLE automatically carries with it a return-to-work order. The return-to-work order order confers a right and imposes an obligation. obligation. As a right, it can be waived. BUT as a duty, it must be discharged even against the will of the employee. Returning to work in this situation is not a matter of option or voluntariness but of obligation. Not only union officers but also union members who defy a return-to-work order are subject to dismissal. They are deemed to have participated in a n legal act. Alleged or perceived defiance of the return-to-work order does not mean automatic dismissal of the defying employees. Due process must be observed. Given the chance to explain, the employees may prove that there was no defiance at all. An order to return to work which the Labor Court may properly issue in the exercise of its power of arbitration and conciliation, is intended to restore the strikers to their positions in the company under the last terms & conditions existing before the dispute arose. The admission must be actual, no t payroll readmission Thus the placement of the striking teachers to “subsequently equivalent academic assignments” could not be considered reinstatement under the “same terms & conditions prevailing before the strike” Striking ship personnel – return to their same ship assigned as before they staged their strike. The return to work only means desistance to the Voluntary return to work is not waiver of original demands. The strike, such desistance is a personal act of the strikers and cannot be used against the union & interpreted as a waiver by it of its original demands fro which the strike was adopted as a weapon. In assumption of jurisdiction, the power of SOLE e xtends to all questions & controversies arising therefrom The parties should not be permitted to isolate other germane issues or demands & reserve them for determination in the other cases pending before before other branches of the industrial court. All such other pending cases must be consolidated by the branch who has taken cognizance of the cas e. Procedure in Certified cases a) Unless there is a necessity to conduct a clarificatory hearing, the NLRC shall resolve all ce rtified cases within 30 calendar days from receipt by the assigned Commissioner b) Where a clarificatory hearing is needed, the Commission shall within 5 calendar days from receipt of the records, issue a notice to be served on the parties through the fastest means available, requiring them to appear & submit additional evidence
All certified cases shall be resolved by the NLRC within 60 calendar days from receipt No motion for postponement or extension shall be entertained NOTE: It is not the Secretary t hat renders the decision, it is the NLRC ha! And a motion of reconsideration can be filed within 10 days. If your MR is denied, the decision of NLRC becomes final & executory. Your remedy now is Rule 65 to CA, then from CA to SC under Rule 45 Execution of Judgment in a Certified Case – Upon issuance of the entry of judgment, NLRC shall motu propio or upon motion by the proper party, may cause the execution of the judgment in the certified case The exercise of SOLE’s assumption of jurisdiction can be subject to judicial review. SC may inquire no just into the validity of the act of assuming jurisdiction over the dispute but even into the correctness or reasonableness of the contents of the SOLE’s order, award or resolution. This is because the Secretary, in exercising this power, is granted a great breadth of discretion. The parties are allowed to withdraw the case from compulsory arbitration under 263 (g) and instead bring it to a voluntary arbitrator. c) d)
PROHIBITED ACTIVITIES & STRIKE AREA Art. 264. Prohibited activities . a. No labor organization or employer shall declare a strike or lockout without first having bargained collectively in accordance with Title VII of this Book or without first having filed the notice required in the preceding Article or without the necessary strike or lockout vote first having be en obtained and reported to the Ministry. No strike or lockout shall be declared after assumption of jurisdiction by the President or the Minister or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout. Any worker whose employment has been terminated as a consequence of any unlawful lockout shall be entitled to reinstatement with full backwages. Any union officer who knowingly participates in an illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status: Provided, That mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the employer during such lawful strike.
b.
No person shall obstruct, impede, or interfere with, by force, violence, coercion, threats or intimidation, any peaceful picketing by employees during any labor controversy or in the exercise of the right to selforganization or collective bargaining, or shall aid or abet such obstruction or interference.
c.
No employer shall use or employ any strike-breaker, nor shall any person be employed as a strike-breaker.
d.
No public official or employee, including officers and personnel of the New Armed Forces of the Philippines or the Integrated National Police, or armed person, shall bring in, introduce or escort in any manner, any individual who seeks to replace strikers in entering or leaving the premises of a strik e area, or work in place of the strikers. The police force shall keep out of the picket lines unless actual violence or other criminal acts occur therein: Provided, That nothing herein shall be interpreted to prevent any public officer from taking any measure necessary to maintain peace and order, protect life and property, and/or enforce the law and legal order.
e.
No person engaged in picketing shall commit any act of violence, coercion or intimidation or obstruct the free ingress to or egress from the employer’s premises for lawful purposes, or obstruct public thoroughfares.
A strike has to be pursued within the bounds of law. A strike does not suspend the binding force of the law; it does not put the strikers above the law or above their fellowmen. The law imposes limits on the conduct of strike. The use of violence or threat i n pursuing labor rights is punishable under the RPC. Art. 289. Formation, maintenance and prohibition of combination of capital or labor through violence or threats. — The penalty of arresto mayor and a fine not exceeding 300 pesos shall be imposed upon any person who, for the purpose of organizing, maintaining or preventing coalitions or capital or labor, strike of laborers or lock-out of employees, shall employ violence or threats in such a degree as to compel or force the laborers or employers in the free and legal exercise of their industry or work , if the act shall not constitute a more serious offense in accordance with the provisions of this Code. Threats, Coercion, Violence Even if the purpose of the strike is valid, the strike my still beheld invalid where the means employed are illegal. Circumstances where the strike was held to be illegal The strikers formed a human cordon alongside the wharf used by the shipping company and blocked all approaches to the vessels of the shipping companies. The strikers employed not only a human fence but also acts of violence & coercion. Strikers obtained through coercion possession of the vessels of the ship owners on several occasions & refused to leave in spite of appeals made by the owners & officers of the said vessels Non-striking employees were threatened with bodily harm if they persisted in proceeding to the vessels of the ship companies Strikers shouting slanderous & scurrilous words against the owners of the vessels
Strikers resort to acts of terrorism attended with physical violence for the purpose of preventing nonstrikers from working Commission of acts of sabotage against the property of employer Infliction of physical injuries, assault, breaking of truck side windows, throwing of empty bottles at non-strikers The use of violence, intimidation, restraint or coercion in carrying out concerted activities, which are injurious to the rights of property, or to particular individuals, makes a strike illegal. Acts of violence justify the dismissal of the guilty strikers. Likewise, employees maybe discharged for illegal acts or misconduct during a strike, such as circulating libelous statements against the employer which show actual malice. Where violence was committed on both sides during a strike, such violence cannot be a ground for declaring the strike as illegal . The responsibility for the use of force should be individual & not collective. The liability for prohibited acts has thus to be determined on an individual basis Article 264 (e) further forbids obstruction of points of ingress or egress as well as public thoroughfares. Such obstructions are beyond valid exercise of the right to strike because they deprive the owner of the company premises of its right to use them for a lawful purpose and the passers-by the use of public passage. The illegal obstructions on public thoroughfares, such as streets or sidewalks, are nuisances which the local government authorities can summarily remove. If there is a commission of prohibited activities in the conduct of strike the employer’s remedy to stop is to file an injunction with the NLRC under Art. 218 (e). This is an original jurisdiction on the NLRC. “To enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts or to require the performance of a particular act in any labor dispute which, if not restrained or performed forthwith, may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party: Provided, That no temporary or permanent injunction in any case involving or growing out of a labor dispute as defined in this Code shall be issued except after hearing the testimony of witnesses, with opportunity for cross-examination, cross-examination, in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and only after a finding of fact by the Commission, to the effect : (1) That prohibited or unlawful acts have been threatened and will be committed and will be continued unless restrained , but no injunction or temporary restraining order shall be issued on account of any threat, prohibited or unlawful act, except against the person or persons, association or organization making the threat or committing the prohibited or unlawful act or actually authorizing or ratifying the same after actual knowledge thereof; (2) That substantial and irreparable injury to complainant’s property will follow; (3) That as to each item of relief to be granted, greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by the granting of relief; (4) That complainant has no adequate remedy at law ; and (5) That the public officers charged with the duty t o protect complainant’s property are unable or unwilling to furnish adequate protection. ”
IMPROVED OFFER & REDUCED OFFER BALLOTING Article 265- In an effort to settle a strike, the DOLE shall conduct a referendum by secret balloting on the improved offer of the employer (reduced offer of the union in case of a lockout) on or before the the 30th day of the strike. When at least a majority of the union members (or if lockout: board of directors/trustees/partners holding the controlling interest in case of a partnership vote to accept the reduced offer), vote to accept the improved offer, the striking (or locked out) workers shall immediately return to work and the employer shall readmit them upon the signing of the agreement .
“Improved Offer Balloting” is a dev ice to stop the work stoppage. By the improved offer balloting device, the strike or lockout may end peaceably, silently, without anyone losing face because no one will appear defeated. An improved offer by the employer or a reduced demand by the union will serve as basis for a secret balloting that will not reveal who retreated from the fight. Under DO 40-03: “Section 12. Improved Offer Balloting . – In case of a strike, the regional branch of the Board shall, at its own initiative or upon the request of any affected party , conduct a referendum by secret balloting on the th improved offer of the employer on or before the 30 day of strike. When at least a majority of the union members vote to accept the improved offer, the striking worker shall immediately return to work & the employer shall thereupon re-admit them upon signing of the agreement . In case of a lockout , the regional branch of the Board shall also conduct a referendum by secret th balloting on the reduced offer of the union on or before the 30 day of the lockout. When at least a majority of the board of directors or trustees or the partners holding the controlling interest in the case of partnership vote to accept the reduced offer, the workers shall immediately return to work & the employer shall thereupon readmit them upon the signing of the agreement .” CONSEQUENCES OF LEGAL & ILLEGAL STRIKE Strikers’ Retention of Employment Strikers remain as employees while they are on strike. The effects of employment are merely suspended during that time. Meaning, no work – no pay. Article 264 of the Labor Code: “mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the employer during such lawful strike ”
However, when union members merely participate in an illegal strike without committing any illegal act, are
they liable? This was squarely answered in Gold City Integrated Port Service, Inc. v. NLRC, where it was held that an ordinary striking worker cannot be terminated for mere participation in an illegal strike. This was an affirmation of the rulings in Bacus v. Ople and Progressive Workers Union v. Aguas , where it was held that though the strike is illegal, the ordinary member who merely participates in the strike should not be meted loss of employment on the considerations of compassion and good faith and in view of the security of tenure provisions under the Constitution . In Esso Philippines, Inc. v. Malayang Manggagawa sa Esso (MME), it was explained that a member is not responsible for the union’s illegal strike even if he voted for the holding of a strike which became illegal . Under the rule of vicarious liability, mere membership in a labor union serves as basis of liability for acts of individuals, or for a labor activity, done on behalf of the union. The union member is made liable on the theory that all the members are engaged in a general conspiracy, and the unlawful acts of the particular members are viewed as necessary incidents of the conspiracy. The rule on vicarious liability of a union member was abandoned and it is only when a striking worker “knowingly participates in the commission of illegal acts during a strike” that he will be penalized with dismissal. Striker’s Loss of Employment It is very clear therefore that the law protects the union members. Their participation in the strike that turned out to be illegal does not result in their loss of job. As to the union officers, however, the law is different. The code says in Article 264: “Any union officer who knowingly participates in an illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status: Provided, That mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the employer during such lawful strike” Article 264 makes a distinction between workers & union officers who participate in a strike. An ordinary striking worker cannot be terminated for mere participation in an illegal strike. There must be proof that he committed illegal act s during a strike. A union officer maybe terminated from work when he knowingly participates in an illegal strike, or when he commits an illegal act during a strike. What are considered illegal acts? No precise meaning was given to the the phrase “illegal acts.” It may encompass a number of acts that violate existing labor or criminal laws, such as the following: 1) Violation of Art. 264(e) of the La bor Code which provides that “n o person engaged in picketing shall commit any act of violence, coercion or intimidation or obstruct the free ingress to or egress from the employer’s premises for lawful purposes, or obstruct public thoroughfares”; 2) Commission of crimes and other unlawful a cts in carrying out the strike; and 3) Violation of any order, prohibition, or injunction issued by the DOLE Secretary or NLRC in connection with the assumption of jurisdiction/certification Order under Art. 263(g) of the Labor Code This enumeration is not exclusive and it may cover other breaches of existing laws. Anyone, in fact, who knowingly commits illegal act s with or without a strike can be held liable. To summarize , ANYONE – ANYONE – whether union officer or member – who commits illegal acts in the course of a strike, whether the strike itself is le gal or illegal, is liable for his illegal acts and may lose his job. During a work stoppage, even if it is based on a defensible reason, the laws of the land continue with full force & effect. For instance, the criminal laws, are not suspended even if the workers have a valid reason to complain & to strike. The individual strikers must be identified. Simply referring to “strikers” or “complainants in this case” is not enough to warrant their dismissal Dismissal of a union officer who committed illegal acts during a strike is not discrimination constituting ULP. A union officer carries heavier r esponsibilities than a union member does. The penalty imposable on the erring strikers does not always have to be dismissal; it maybe scaled down to suspension. In one case, SC upheld the penalty of suspension based on the finding that both parties contributed to the volatile atmosphere em erging despite the SOLE’s status quo order, disrupting thereby the orderly continuance of the negotiation. “Whoever must come to court, must do so with clean hands” If employer ka, then you are seeking for dismissal sa mga strikers, then dapat sa imuha pud nga part, wala ka naka-contribute sa ilang pagka-isog. Dapat as an employer, wala ka nakaaggravate sa situation bah Take not that the codal provision mentions “officers”, not “leaders” . There can be leaders who are n ot officers. Shop Stewards are Union Officers. (I previously mentioned this in grievances topic ) The position of the shop steward has been acknowledged to be a position within the union; and even in Section 2 of Rule XIX of the Implementing Rules of Book V of the Labor Code, as amended by DOLE Order 40-03, the shop steward is understood to be a union officer who plays an important role in the grievance procedure . The shop steward is responsible for receiving complaints and grievances of the employees and for bringing these complaints to
the immediate supervisor of the employee concerned. If the grievance is not settled through the efforts of the shop steward, it is referred to the grievance committee. In short, they act as peacemakers. If they instead join an illegal strike, then they should properly be dismissed, just like the union officers The law in using the word “may,” grants the employer the option of declaring a union officer who participated in an illegal strike as having lost his employment. Declaration of Illegality of a strike is not a prerequisite prerequisite to the dismissal of illegal strikers strikers This means that filing a petition to declare the strike illegal is not a prerequisite for the employer to terminate the employment of employees, whether union officers or members., who commit illegal acts in the course of the strike. For instance, Article 264 (e) prohibits any person engaged in picketing from obstructing the free ingress to & egress from the employer’s premises. Where the strikers are found to have committed this act, their dismissal from employment was declared legal. GENERAL RULE: A prior petition to declare the strike illegal is not necessary EXCEPTION: Complaint for illegal strike is pending before the NLRC By filing a formal complaint for illegal strike, employer must desist from undertaking its own investigation on the same matter, concluding upon the illegality f the union activity, and dismissing outright the union officers involved. A strike may be justified by belief in good faith that the employer was committing ULP at the time the strikers went on strike. Good faith saves the strike from being declared illegal & the strikers from being declared to have lost their employment. A striker who failed to report for work when on had the opportunity to do so waived thereby his right of reinstatement. Because of the apparent lack of interest of the strikers concerned as shown by their failure to report to work without justifiable reason, they are deemed to ha ve forfeited their right to reinstatement. Wrongfully dismissed employees & strikers who are ordered reinstated may be subjected to periodic physical examination as old reinstated workers BUT NOT AS A PRECONDITION TO REINSTATEMENT. Where the employer voluntarily agreed to reinstate the strikers, such agreement on the part of the employer constitutes a waiver of the defense that the strike was illegal. GENERAL RULE: NO BACKWAGES IN STRIKE In an economic strike, the strikers are not entitled to backwages on the principle that “a fair day’s wage” accrues only for a “fair day’s labor”. No work – No pay principle Wages & salaries represent the compensation of the labor performed by the laborers or employees, not having performed any work during the strike, they should not be paid a ny wage or salary. st 1 exception to the general rule : Employees who were discriminatorily dismissed for union activities are entitled to receive back pay from the date of the act of discrimination, that is, from the day of the discharge. nd 2 exception to the general rule: The laborers concerned did not voluntarily strike but were practically locked out. This happens when the company notifies the employee on a certain date that they would cease to work, & notwithstanding the efforts of the employees to reach a compromise, the company adopted a stern attitude which left no other alternative to the employees but to walk out. rd 3 exception to the general rule: The Voluntary strikers offer to return to work unconditionally despite ULP When the strikers abandon the strike & apply for reinstatement despite ULP & the employer either refuses to reinstate them OR imposes upon their reinstatement new conditions that constitute ULP, the employees/strikers must be awarded with back pay. Even after finding of ULP by the employer, the award of backwages rests on the discretion of the courts. It is not therefore automatic. The strikers have the right to reinstatement notwithstanding that the management may have hired other workers to replace them. The replacements did not gain permanent right to the positions they held. Reinstatement of strikers, who have not found substantially equivalent employment elsewhere, therefore follows as a matter of right , notwithstanding that the employer has hired others to take the place of the strikers for the purpose of continuing the operation of the plant or the business of the industry. Where reinstatement of illegally dismissed strikers has become impossible, backwages should be paid Resignation of strikers does not prevent the signing of the CBA The 20% requirement under Article 234 pertains to the registration of a labor organization and not to its election as a collective bargaining agent. Even when LLO could no longer meet the 20% requirement after its registration, it does not, ipso facto, lose its status as such until after due hearing by BLR. Civil Liabilities of Labor Organization Where a combination of laborers is recognized as legal & the strike is lawful, no liability arises because of injuries arising thereto. This is the principle of damnum absque injuria Labor unions are not liable in damages for the unauthorized or Unratified unlawful acts of their officials nor are they responsible for the unlawful acts of individual members which are neither their officers nor committees have directed, aided, or approved.
Where the acts of labor unions & their members are unlawful & tortious, the officers participating in such
unlawful actions are liable for the resulting damages irrespective of the fact that they were acting in behalf of the union. Members of labor unions are not subject to civil liability for the acts of the union or its officers as such, UNLESS it is shown that they personally authorized or participated in the particular acts, & the l iability of a member of a labor union for the wrongful acts of his associates done without his knowledge or approval is not to be inferred fro mere membership in the union. A person against whom an unlawful boycott has been instituted may have an action for damages thereby occasioned against any & all if the persons who have combined against him, PROVIDED, there is causal connection between the acts complained of & the damage suffered. A labor organization which interferes with the right of a worker to dispose of his services in a free market must justify such interference interference or respond in damages. A labor union has no right to extort money from employers as the rice of forbearance from the threatened labor difficulties. If employer paid, he may recover such sum A labor organization have been held liable for damages arising out of publication & circulation of false statements relating to industrial controversies. Union officers may not be held vicariously liable for illegal acts of strikers. Vicarious liability has been expressly legislated out by RA 875 The standing rule now is that for a labor union and/or its officials & members to be liable, there must be proof of actual participation in or authorization or ratification of the illegal acts . Union officers are liable for damages caused to the business by the illegal strike. The business owner may recover those damages if he is a ble to prove them. In addition, the officers will lose their jobs.
PROHIBITION AGAINST ARREST & DETENTION OF UNION MEMBERS Art. 266. Requirement for arrest and detention. Except on grounds of national security and public peace or in case of commission of a crime, no union members or union organizers may be arrested or detained for union activities without previous consultations with the Secretary of Labor. DO NO. 40-G-03 Operational Guidelines Section 9. Request for PNP assistance . Any request for PNP assistance made by DOLE and/or its appropriate agencies shall be in writing, specifying the acts to be performed or conducted by PNP and shall be addressed to the PNP Regional Director or the City Police Director in the case of highly urbanized cities, or the Provincial Director in the case of municipalities and component cities. Any request for PNP assistance by the parties to the labor dispute, including those within the economic zone, shall be in writing and shall be coursed through the DOLE and/or its appropriate agencies or through PEZA, where appropriate. Section 10. Coordination with the PNP peace-keeping team . In case a PNP peace-keeping team is requested, the Office of the Secretary or ICMC shall closely coordinate with the team and ensure observance of the following: a. The PNP peace-keeping team shall stay at least 50-meter radius away from the picket/strike/lockout area. ln case the 50-meter radius includes a public thoroughfare, traffic police shall ensure the free flow of traffic. b. in the exercise of their peace-keeping functions, members of the team shall at all times be in proper uniform, without lethal weapons and firearms, and with properly displayed nameplate. They shall: (1) Exercise maximum tolerance and when called for by the situation or when all other peaceful and non-violent means have been exhausted, may employ as a last resort only such means as may be necessary and reasonable to prevent or repel an aggression; (2) Observance of courtesy and strict neutrality, bearing in mind that the parties to the labor dispute are not their adversaries but their partners in the quest for industrial peace and human dignity; (3) Not deliberately inflict any physical harm upon strikers and/or picketers or any person involved in the strike /lockout; and (4) Not fraternize with any of the parties involved in the controversy, and shall not accept any invitation from management personnel or union officials/personnel involved in the controversy. (5) Ensure that the strike-bound area is a gun-free zone, to include civilians and police personnel. (6) Respect the Constitutional guarantee on the right of the people to be secured from unreasonable searches and seizures, no search or arrest arising from labor dispute shall be made except through a valid court warrant. The arresting officers shall notify the DOLE within twenty; four hours after the arrest was made Section 11. Role of company security guards and similar personnel when strike/lockout occurs . The Office of the Secretary or the NCMB shall reiterate observance by company security guards and similar personnel, during picket/strike/lockout of the provisions of Sections 1, 2 and 3 of Rule XVIII of "the 2003 implementing Rules and Regulations, of Republic Act No. 5487 or the "Private Sec urity Agency Law”, which form an integral part of this Operational Guidelines as Annexed and any violations shall be proceeded in accordance with the 2003 Implementing Rules and Regulations of Republic Act 5487, as amended, and PNP Memorandum-Circular 20018-O01 or the “Revised Rules in the Investigation in the Administrative Cases Involving Security and Training Personnel, Security Agencies and Training Institutions”, incorporated herein as Annexes “B” and “C”.
LEGAL REMEDIES BY EMPLOYER & UNION IN CASE OF STRIKE/LOCKOUT: LABOR DISPUTE; JURISDICTION & PROCEDURE BEFORE LABOR ARBITER & SECRETARY OF LABOR Art.212(l) "Labor dispute" includes any controversy or matter concerning terms and conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and
conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee. Under the preliminary topic of STRIKES, I already discussed extensively that a valid strike needs a valid labor dispute. Just review that Parties may result to voluntary arbitration and other modes of alternative dispute resolution such as voluntary arbitration under the NCMB For national interest cases, compulsory arbitration via assumption order of SOLE
ARTICLE 262. Jurisdiction over other labor disputes. — The Voluntary Arbitrator or panel of Voluntary Arbitrators, upon agreement of the parties, shall also hear and decide all other labor disputes including unfair labor practices and bargaining deadlocks. Arbitration shall be discussed extensively in the next topic
INNOCENT BY-STANDER RULE While peaceful picketing is entitled to protection as an exercise of free speech, the courts are empowered to confine or localize the sphere of communication or the demonstration to the parties to the labor dispute. The court may insulate establishments or persons with no industrial connection or having interest totally foreign to the context of the dispute. Thus, the right may be regulated at the instance of third persons or “innocent by -standers.”
ANTI INJUNCTION BAN; FREEDOM AT THE WORKPLACE
Art. 254. Injunction prohibited . No temporary or permanent injunction or restraining order in any case involving or growing out of labor disputes shall be issued by any court or other entity, except as otherwise provided in Articles 218 and 264 of this Code. Under the first exception, Article 218 (e) of the Labor Code expressly confers upon the NLRC the power to “enjoin or restrain actual and threatened commission of any or all prohibited or unlawful acts, or to require the performance of a particular act in any labor dispute which, if not restrained or performed forthwith, may cause grave or irreparable damage to any party or render ineff ectual any decision in favor of such party x x x.” The second exception , on the other hand, is when the labor organization or the employer engages in any of the “prohibited activities” enumerated in Article 264. Pursuant to Article 218 (e), the coercive measure of injunction may also be used to restrain an actual or threatened unlawful strike. Regular courts are without authority to issue injunction orders in cases involving or originating from labor disputes even if the complaint was filed non-striking employees & the employer was also made a respondent to the action or even if the complainant is a customer of the strike-bound employer or a sister company of the strike-bound employer, whose premises were picketed by the strikers. Exception: A regular court may issue injunction to protect the interest of neutral employers in common situs picketing
REVISED GUIDELINES OF THE NCMB FOR THE CONDUCT OF VOLUNTART ARBITRATION PROCEEDINGS EFFECTIVE SEPTEMBER 16, 2005 3rd Yr, 1st Sem Law\La bor Relations\EXTRAS\NCMB Guidelines in the Conduct of VA Proceedings.pdf LEGEND: Panel of Voluntary VA – Voluntary Arbitration GM – Grievance Machinery PVAr – ARbitrators VAr – Voluntary Arbitrator CAn – Compulsory Arbitration ADR – Alternative Dispute Resolution
PERTINENT LAWS Art. 260. Grievance machinery and voluntary arbitration . The parties to a Collective Bargaining Agreement shall include therein provisions that will ensure the mutual observance of its terms and conditions. They shall establish a machinery for the adjustment and resolution of grievances arising from the interpretation or implementation of their Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies. All grievances submitted to the grievance machinery which are not settled within seven (7) calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the Collective Bargaining Agreement. For this purpose, parties to a Collective Bargaining Agreement shall name and designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators, or include in the agreement a procedure for the selection of such Voluntary Arbitrator or panel of Voluntary Arbitrators, preferably from the listing of qualified Voluntary Arbitrators duly accredited by the Board. In case the parties fail to select a Voluntary Arbitrator or panel of Voluntary Arbitrators, the Board shall designate the Voluntary Arbitrator or panel of Voluntary Arbitrators, as may be necessary, pursuant to the selection procedure agreed upon in the Collective Bargaining Agreement, which shall act with the same force and effect as if the Arbitrator or panel of Arbitrators has been selected by the parties as described above. Art. 261. Jurisdiction of Voluntary Arbitrators or panel of Voluntary Arbitrators . The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have original and exclusive jurisdiction to hear and decide all unresolved grievances arising from the interpretation or implementation of the Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies referred to in the immediately preceding article. Accordingly, violations of a Collective Bargaining Agreement, except those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as grievances under the Collective Bargaining Agreement. For purposes of this article, gross violations of Collective Bargaining Agreement shall mean flagrant and/or malicious refusal to comply with the economic provisions of such agreement. The Commission, its Regional Offices and the Regional Directors of the Department of Labor
and Employment shall not entertain disputes, grievances or matters under the exclusive and original jurisdiction of the Voluntary Arbitrator or panel of Voluntary Arbitrators and shall immediately dispose and refer the same to the Grievance Machinery or Voluntary Arbitration provided in the Collective Bargaining Agreement.
Art. 262. Jurisdiction over other labor disputes . The Voluntary Arbitrator or panel of Voluntary Arbitrators, upon agreement of the parties, shall also hear and decide all other labor disputes including unfair labor practices and bargaining deadlocks. Art. 262-A. Procedures. The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have the power to hold hearings, receive evidences and take whatever action is necessary to resolve the issue or issues subject of the dispute, including efforts to effect a voluntary settlement between parties. All parties to the dispute shall be entitled to attend the arbitration proceedings. The attendance of any third party or the 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) calendar days 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 law on 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 the absence 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 or regular courts or any public official whom the parties may designate in the submission agreement to execute the final decision, order or award. Art. 262-B. 262-B. Cost of voluntary arbitration and Voluntary Arbitrator’s fee. The parties to a Collective Bargaining Agreement shall provide therein a proportionate sharing scheme on the cost of voluntary arbitration including the Voluntar y Arbitrator’s fee. The fixing of fee of Voluntary Arbitrators, whether shouldered wholly by the parties or subsidized by the Special Voluntary Arbitration Fund, shall take into a ccount the following factors: a. Nature of the case; b. Time consumed in hearing the case; c. Professional standing of the Voluntary Arbitrator; d. Capacity to pay of the parties; and e. Fees provided for in the Revised Rules of Court. FRAMEWORK OF ADR FOR DISPUTE PREVENTION: CONCILIATION-MEDIATION; VOLUNTARY ARBITRATION, GRIEVANCE HANDLING, WORKPLACE COOPERATION (LMC) OR EMPLOYEE INVOLVEMENT (EI) & EMPLOYEE PARTICIPATION (EP) SCHEMES & COLLECTIVE BARGAINING Contract Administration is still part off the duty to bargain. The CBA, becomes the law between the parties. As a contract, there will be ambiguities to be clarified and gaps to be filled. In other words, the duty to bargain continues into the contract administration stage. Strengthening the binding force of the CBA, Article 248 considers as ULP any act that violates an existing CBA. But such must be related to Article 261 which limits that kind of ULP to “gross violations” only. The provisions of the CBA must be respected since its terms & conditions "constitute the law between the parties". Those who are entitled to its benefits can invoke its provisions. The CBA being a contract, the rules embodied in the NCC on interpretation of the contracts must govern. If the terms of the contract are clear, the literal meanings of the stipulations shall control, but if the words appear to be contrary to the evident intention of the parties, the latter shall prevail over t he former. A proposal mentioned in the negotiation minutes but not embodied in the collective bargaining contract itself is not part of the CBA A device to forestall negotiation proposals after the CBA has been signed is the "zipper clause". In short, the CBA is a complete a greement; negotiation is closed, as a zipper does. Law is deemed written in the contract. CBA covers all employees, even those non-members of the majority union or the EBR Managers are not entitled to CBA benefits unless the employer a ffords the same benefits to the managers Change of EBR (disaffiliation), the CBA still binds them up to the expiration of current CBA. Also known as the substitutionary doctrine When a CBA is concluded between a labor union and an employer, the members of the union are precluded from entering into individual contracts of employment. BUT i f the agreement merely fixes wages and working conditions, the employer may enter into particular contracts of employment with his employees even though both are bound by the general contract a s to wages & working co nditions Grievances, Grievance Machinery, LMC, Collective Bargaining & Employees’ Involvement & Participation in Policy making has already been discussed in the previous topic. Remember? I will just focus on Voluntary Arbitration here ha
STRIKE/LOCKOUT INTERVENTION ON THE PART OF DOLE: CONCILIATION & MEDIATION; ASSUMPTION OF JURISDICTION; VOLUNTARY/COMPULSORY ARBITRATION Conciliation & Mediation has also been discussed na. See the topic on Strike under avoidance of strike, sub-topic Conciliation, Mediation, Compromise to Avoid Strike Assumption of Jurisdiction has also been discussed under the previous topic, sub-topic assumption of jurisdiction of SOLE GRIEVANCE; CONCEPT & SCOPE Already discussed in the previous topic
SUBMISSION AGREEMENT; NOTICE TO ARBITRATE; ARBITRATION CLAUSE submitting their case for arbitration containing Submission Agreement refers to a written agreement by the parties submitting
the issues, the chosen arbitrator, and stipulation to abide by & comply with the resolution including the cost of arbitration. The submission agreement shall contain: The agreement to submit to arbitration The specific issue/s submitted to arbitration The name of arbitrator The names, addresses & contact numbers of the pa rties The agreement to perform or abide by the decision NOTICE TO ARBITRATE This refers to a formal demand made by one party to other other for the arbitration of a particular dispute in case of refusal of one party in a CBA to submit to arbitration. A notice to arbitrate shall be served to the unwilling party copy furnished to the permanent arbitrator named in the CBA & to the regional NCMB exercising jurisdiction over the work place The unwilling party is given 7 days to respond. After the lapse of such period, voluntary arbitration shall then commence. If the CBA does not designate an arbitrator , the NCMB shall call the parties & appoint a VAr or PVAr, who shall thereafter commence arbitration proceedings. Contents of the Notice: The names, addresses & contact numbers of the parties to whom the notice is made The arbitration clause of the CBA The issue/s to be arbitrated The relief sought The name, addresses & contact numbers of the initiating party ARBITRATION CLAUSE This is a provision in the CBA requiring that grievances, if unsettled, shall be finally resolved by a VAr
GRIEVANCE MACHINERY; UNRESOLVED GRIEVANCES Grievance Machinery was discussed in previous topics already Remember that a grievance must pass through the grievance machinery. If the grievance still remains unresolved,
that is where voluntary arbitration comes in. Article 260 of the Labor Code provides that unresolved grievances shall be submitted to Voluntar y Arbitration COLLECTIVE BARGAINING AGREEMENT & COMPANY PERSONNEL POLICIES Already discussed under the topic of Rights of LLO, sub-topic Right to participate in Policy & decision-making processes DISPUTES INVOLVING PRODUCTIVITY INCENTIVE PROGRAMS UNDER RA 6791 RA 6971 AN ACT TO ENCOURAGE PRODUCTIVITY AND MAINTAIN INDUSTRIAL PEACE BY PROVIDI NG INCENTIVES TO BOTH LABOR AND CAPITAL. RA 6971 expanded the jurisdiction of VAr to include all unresolved disputes, grievances or other matters arising from the interpretation and implementation of a productivity incentives program which remains unresolved within 20 calendar days from the time of the submission to labor-management committee GRIEVANCE PROCEDURE: GRIEVANCE COMMITTEE Already discussed in the previous topics VOLUNTARY ARBITRATION DISTINGUISHED FROM COMPULSORY ARBITRATION In its broad sense arbitration is the reference of a dispute to an impartial third person, chosen by the parties or appointed by statutory authority to hear & decide the case in controversy. COMPULSOLRY ARBITRATION VOLUNTARY ARBITRATION The consent of the parties is enforced by statutory The consent of the parties is not enforced by statutory provisions. Meaning the parties are COMPELLED by the provisions. The parties themselves can voluntarily agree government to forego their right to strike & a re to submit a certain dispute to resolution. resolution. This can seen compelled to accept the resolution of their dispute in an “arbitration clause” provided for in t he CBA which through arbitration by a third party. serves as the law between the parties. This is the process of settlement of labor disputes by a This is a contractual proceeding whereby the parties to any dispute or controversy, in order to obtain a speedy government agency which has the authority to investigate & to make an award which is binding on all & inexpensive final disposition of the matter involved, the parties select a judge of their own choice & by consent submit their controversy to him for determination. Officiated by the Labor Arbiter under Article 217 of the Officiated by a Voluntary Arbitrator under Article 261 & Labor Code 262 of the Labor Code
DESIGNATION, OR APPOINTMENT OF VOLUNTARY ARBITRATOR; AD-HOC & PERMANENT A PERMANENT ARBITRATOR is the voluntary arbitrator specifically nam ed or designated by the parties in the CBA as
their voluntary arbitrator An AD-HOC ARBITRATOR is the voluntary arbitrator chosen by the parties in accordance with established procedures in the CBA OR the one a ppointed by NCMB in case there is a failure in the selection or incase either of the parties to the CBA refuses to submit to voluntary arbitration. arbitration. Ad Hoc/ Temporary arbitrators are usually selected when a dispute is already at hand.
A voluntary arbitrator is chosen by the parties themselves. Note that their choice is not limited to the a rbitrators accredited by the NCMB, although Article 260 says they should PREFERABLY choose the accredited ones. This choice is usually influenced by the rust in the person’s fairness & knowledge of the dyna mics, including law of labor management relations The preferred method of selection is by mutual a greement of the parties. Alternative methods include the selection or appointment by an administrative agency like the NCMB The parties will also decide on t he number of arbitrators – either a sole arbitrator or a panel of arbitrators In instances where parties fail to select a voluntary arbitrator or panel of arbitrators, the regional branch of NCMB shall designate the VAr or PVAr, as maybe necessary which shall have the same fore & effect as if the parties have selected the arbitrator. The appointment from NCMB shall contain the f ollowing: The name of arbitrator The names, addresses & contact numbers of the parties The issues to be arbitrated The basis of appointment The arbitrator’s fee The signature of appointing NCMB Director JURISDICTION OF VOLUNTARY ARBITRATOR; ORIGINAL & EXCLUSIVE & CONCURRENT Jurisdiction of VAr EXCLUSIVE & ORIGINAL CONCURRENT 1) All unresolved grievances arising from the All other labor disputes including ULP & bargaining implementation or interpretation of the CBA deadlocks. 2) All unresolved grievances arising from the implementation or enforcement of company personnel policies 3) All wage distortion issues arising from the application of any wage orders in organized establishments 4) All unresolved grievances arising from the interpretation or implementation of the productivity incentive programs under RA 6971 The jurisdiction of the Vary can be found in Article 261 & 262 with the Labor Code. You can also find it NCMB Revised Guidelines Note that the jurisdiction of VAr under Article 262 must be voluntarily conferred by both labor & management . 262 would refer to “all other labor disputes” “all other labor disputes” could include any or all di sputes under Articles 217 which ordinarily are under the Labor Arbiter’s original & exclusive jurisdiction This is because any or all of the cases mentioned in 217 can, by agreement of the parties, be presented to & decided with finality by a voluntary arbitrator. Note that a VAr, under 261 has “original & exclusive” jurisdiction over disputes concerning CBA implementation or personnel policy enforcement. In addition to that, 262 says that the parties may submit to a VAr “ all other disputes including ULP & Bargaining deadlocks ”. In other words, a case under 217 may be lodged instead with a Var. The principle behind this is that, the law prefers, or gives primacy to voluntary arbitration instead of compulsory arbitration from entertaining a dispute . Employment Termination Disputes, arising from CBA or personnel policy implementation are cognizable by the Var. If such is filed w ith the Labor Arbiter, it has to be dismissed & referred to NCMB for appropriate action BUT this referral by the Labor Arbiter presupposes that the parties had agreed in unequivocal language that the termination dispute should be submitted to grievance machinery & VA. Without such explicit agreement, the labor arbiter may heard & decide the case . CBA violations not constituting ULP are a lso cognizable by VAr if not resolved through the grievance machinery. If the violations are gross ( flagrant and/or malicious refusal to comply with the economic provisions of the CBA) are to be treated as ULP and are cognizable by the Labor Arbiter under 217 Pero pwede gihapon sa VAr under 262, aku lang i-explain above dba nga ang 217 cases p wede ra gihapon sa VAr under 262 EXERCISE OF JURISDICTION; POWERS & DUTIES OF VOLUNTARY ARBITRATOR When can the VAr start to exercise his jurisdiction? 1) Upon receipt of the submission agreement duly signed by both parties 2) Upon receipt of the notice to arbitrate when there is a refusal from one party 3) Upon receipt of an appointment or designation as VAr by the NCMB Director in either of the following cases: a. In the event the parties fail to select a VAr b. In the absence of a named arbitrator in the CBA & the party upon whom the notice to arbitrate is served does not favorably reply within 7 days from receipt of such notice DUTIES OF VAr 1) Duty to Conciliate & Mediate The VAr shall exert his best efforts to conciliate or mediate to aid the parties in reaching a voluntary settlement of the dispute, before proceeding with arbitration
2)
Duty To encourage the parties to enter into a stipulation of facts To facilitate the speedy disposition of cases, in case the parties failed to reach a voluntary settlement of the dispute, the VAr shall encourage the parties parties to enter into stipulation of facts, which shall be reduced in writing, signed by the parties, and shall form part of the records of the case. POWERS OF VAr 1) Require any person to attend the hearing/s 2) Subpoena witnesses & receive documents when the relevancy of the testimony & the materiality thereof has been demonstrated to the arbitrators 3) Take whatever action/s necessary to resolve the issue/s subject of the dispute 4) Issue a writ of execution to enforce final decisions, and in connection therewith, it shall be his duty to: a. See to it that his/her decision is f ully satisfied b. Inquire into the correctness of his execution of h is/her final decision c. Consider whatever supervening event that may transpire during such execution d. Determine every question of fact & law which maybe involved in the execution Note also that in the submission a greement, the extent of the arbitrator’s authority is als o defined there. In general, the arbitrator is expected to decide those questions expressly stated & limited in the submission agreement. However, since arbitration is the final resort for adjudication of disputes, the arbitrator will assume that he has the power to make final settlement. E.g. Assume that the submission empowers the arbitrator to decide whether Mr. X was discharged for a just cause. The a arbitrator rbitrator in this instance would assume that his powers extended beyond giving a yes or no answer & included the power to reinstate Mr. X. with or without back pay.
COST OF VOLUNTARY ARBITRATION & FEES OF VOLUNTRAY ARBITRATOR The parties to a collective bargaining agreement shall provide therein a proportionate sharing scheme to pay the
cost of voluntary ar bitration, including the voluntary arbitrator’s fee. Unless the parties agree otherwise, the cost of voluntary arbitration proceedings and voluntary arbitrator’s fees shall be shared equally by the parties out of the funds that they may set aside for the purpose, under their collective agreement. The fixing of the fee of voluntary arbitrator or panel of voluntary arbitrators, shall take into account the following factors: a) Nature of the case b) Time consumed in hearing the case c) Profession standing of the voluntary arbitrator d) Capacity to pay of the parties e) Fees provided for in the Revised Rules of Court
NATURE OF PROCEEDINGS, INITIAL CONFERENCE; ARBITRATION ISSUES; GROUND RULES; FILING OF POSITION PAPERS & OTHER PLEADINGS; CLARIFICATORY HEARING; RECORDING OF PROCEEDINGS; ARBITRATION CONFERENCE In practice, VA of labor cases use procedures based on the Labor Code as amended by RA 6715 & its IRR, the CBA, & other agreement of the parties, the directives of the arbitrator, & the procedural rules of appropriate agenc ies like the NCMB Procedural Guidelines in the Conduct of Voluntary Arbitration Proceedings. In the appreciation of evidence, the arbitrator is not bound by the Rules of C ourt Nature of Proceedings The proceeding before the VAr are non-litigious is nature . They are not governed by the technical rules applicable to court or judicial proceedings, but they must, a t all times, comply with the requirements of due process. Initial Conference Within 2 days from receipt of the submission agreement, notice to arbitrate or appointment from the board, the VAr shall: Set the date, time & place of the initial conference Notify the parties of the initial conference During the initial conference, the parties shall be encouraged to explore all possible means of effecting a settlement of the dispute. Should the parties arrive at any agreement as to the whole or any part of the dispute, it shall be reduced in writing & signed by the parties before the VAr The written agreement shall form part of the final decision In the absence of any settlement , the VAr shall require the parties to stipulate facts which are no longer disputable , leaving the presentation & examination of evidence , and only to such facts that are still in dispute If the parties fail to appear for 2 consecutive conferences, despite due notice The VAr shall terminate the conference & issue an order requiring the parties to submit their respective position papers within 10 calendar days from receipt of said order If the parties again fail to submit the required position papers, the case shall be deemed submitted for decision based on available records on file. Arbitration Issues The VAr must see to it that he clearly understands the issue/s submitted to arbitration. If, after conferring with the pa rties, VAr finds necessity to simplify or clary the issue/s, he shall assist the parties in the reformulation of the same
Ground Rules The parties & the VAr shall jointly formulate & adopt the ground rules on the following: Schedule & Frequency of Conferences Rules on Postponements Period & Manner of submission of position papers & other pleadings Determination for the necessity of conducting clarificatory conference Period to decide the case Cost of Arbitration Filing of Position Papers & Other Pleadings The VAr shall direct the parties to submit verified position papers & other pleadings on the date agreed upon during the initial conference Position papers shall cover only: Issues & causes of a ctions raised in the submission agreement Notice to Arbitrate or Appointment of VAr Stipulation of facts, as simplified & clarified during the initial conference Position paper shall be accompanied by any evidence, including affidavits of witnesses which shall take the form of direct testimonies Clarificatory Hearing Immediately after the submission of position papers & other pleadings, the VAr shall determine the need for holding a clarificatory conf erence or ocular inspection. The parties shall be notified of such Recording of Proceedings The proceedings before the VAr need not be recorded, PROVIDED, that the VAr in consultation with the parties should: Make a written summary summary of the proceedings proceedings Such summary must include all the evidence presented If the parties request for the taking of record of proceedings & testimony of witnesses, the VAr shall must honor such request Payment of the cost shall be assumed by the requesting party Arbitration Conference In the conduct of a rbitration, the VAr must provide the parties adequate opportunities to be heard. VAr shall control the proceedings & see to it that proper decorum is observed VAr must render a ruling of the issue/s raised in the course of the proceedings VAr must treat all significant aspects of the proceedings as confidential in nature UNLESS confidentiality is waived by the parties. Persons having direct interest in the subject of arbitration shall have the right to attend any conference , BUT the attendance of any other person shall be at the discretion of the VAr DECISION OF VOLUNTARY ARBITRATOR, & PROHIBITED MOTION; APPEAL PROCEDURE Decision of Voluntary Arbitrator The decision of VAr may either be: Dismissal of a claim Grant of specific remedy VAr must render a decision within the time stipulated by the parties during the initial conference (ground rules gani )BUT in no case to exceed 20 calendar days from submission of the case for decision Failure of the VAr to render a decision within the time agreed upon by the parties, W ITHOUT justifiable reason, is a sufficient ground f or the NCMB to discipline said VAr pursuant to the guidelines issued by SOLE Before NCMB can discipline, the party or parties to the case must file a verified complaint first. If due to the above, the VAr is de-listed from the list of accredited VAr, he must turn over the record of the case to NCMB within 10 days from demand for further disposition In the event that the parties finally settle their dispute during the pendency of the arbitration proceedings, the terms of settlement must be reduced into writing & shall be ADOPTED as the decision of the VAr The decision must state in clear, concise & definite terms the facts & the law upon which it is based If the decision of VAr involves a monetary award, VAr must specify: The amount granted Formula used in the computation for arriving at such amount The decision of VAr shall be final & executory after 10 calendar days from receipt of copy of the decision by the parties Both parties must comply faithfully & voluntarily with the decision of VAr If you have read AZUCENA’s book, he said that the decision of the VA r can be a subject of judicial review primarily because VAr acts in a quasi-judicial capacity . That’s PAGE 520. The jurisprudence that he used was a 1998 & a 1984 case. However, in the 2009 case of Tabigue vs International Copra Export Association, the SC said: Under Section 9 (3) of the Judiciary Reorganization Act of 1980, the Court of Appeals exercises exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards of Regional Trial Courts and quasi-judicial agencies , instrumentalities, boards or commissions. An agency is said to be exercising judicial function where it has has the power to determine what the law is and what the legal rights of the parties are , and then undertakes to determine these is a term which questions and adjudicate upon the rights of the parties . Quasi-judicial function is applies to the action, discretion, etc. of public administrative officers or bodies, who are required
to investigate facts or ascertain the existence of facts, hold hearings, and draw conclusions from them as a basis for their official action and to exercise discretion of a judicial nature. Given NCMB’s following functions , as enumerated in Section 22 of Executive Order No. 126 (the Reorganization Act of the Ministry of Labor and Employment ), it can not be considered a quasi judicial agency. viz: (a) Formulate policies, programs, standards, procedures, manuals of operation and guidelines pertaining to effective mediation and conciliation of labor disputes; (b) Perform preventive mediation and conciliation functions; (c) Coordinate and maintain linkages with other other sectors sectors or institutions, and other government authorities concerned with matters relative to the prevention and settlement of labor disputes; (d) Formulate policies, plans, programs, standards, standards, procedures, manuals of operation and guidelines pertaining to the promotion of cooperative and non-adversarial schemes, grievance handling, voluntary arbitration and other voluntary modes of dispute settlement; (e) Administer the voluntary arbitration arbitration program; maintain/update a list list of of voluntary voluntary arbitrations; compile arbitration awards and decisions; (f) Provide counseling and preventive mediation assistance particularly in the administration of collective agreements; (g) Monitor and exercise technical supervision over the Board programs programs being implemented in the regional offices; and (h) Perform such other functions as may be provided by law or assigned by the Minister, Motion for Reconsideration (MR) Article 262-A does not prohibit the filing of MR. Like what Atty. Marquez said, it’s in the case of Teng vs Pahagac, a 2010 decided case On March 21, 1989, Republic Act No. 6715 took effect, amending, among others, Article 263 of the Labor Code which was originally worded as: Art. 263 x x x Voluntary arbitration awards or decisions shall be final, unappealable, and executory As amended, Article 263 is now Article 262-A, which states: Art. 262-A. x x x [T]he award or decision x x x shall contain the facts and the law on 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 Notably, Article 262-A 262-A deleted the word “unappealable” from Article 263. The deliberate selection of the language in the a mendatory act differing from that of the original act indicates that the legislature intended a change in the law, and the court should endeavor to give effect to such intent. It is true that the present rule [Art. 262 -A] makes the voluntary arbitration award final and executory after ten calendar days from receipt of the copy of the award or decision by the parties. Presumably, the decision may still be reconsidered by the Voluntary Arbitrator on the basis of a motion for reconsideration duly filed during that period VAr’s VAr’s decision may still be reconsidered on the basis of a motion for reconsideration seasonably filed within 10 days from receipt thereof . The seasonable filing of a motion for reconsideration is a mandatory requirement to forestall the finality of such decision . Under Section 6, Rule VII of the same guidelines implementing Article 262-A of the Labor Code, this Decision, as a matter of course, would become final and executory after ten (10) calendar days from receipt of copies of the decision by the parties x x x unless, in the meantime, a motion for reconsideration OR a petition for review to the Court of Appeals under Rule 43 of the Rules of Court is filed within the same 10 -day period. By allowing a 10-day period, the obvious intent of Congress in amending Article 263 to Article 262A is to provide an opportunity for the party adversely affected by the VAr ’s decision to seek recourse via a motion for reconsideration or a petition for review under Rule 43 of the Rules of Court filed with the CA. Indeed, a motion for reconsideration is the more appropriate remedy in line with the doctrine of exhaustion of administrative remedies . For this reason, an appeal from administrative agencies to the CA via Rule 43 of the Rules of Court requires exhaustion of available remedies as a condition precedent to a petition under that Rule. By disallowing reconsideration of the VA’s decision, Section 7, Rule XIX of DO 40 -03 and Section 7 of the 2005 Procedural Guidelines went directly against the legislative intent behind Article 262A of the Labor Code. These rules deny the VA the chance to correct himself a nd compel the courts of justice to prematurely intervene with the action of an administrative agency entrusted with the adjudication of controversies coming under its special knowledge, training and specific field of expertise. Appeal Procedure From St. Louis University vs Cobbarubias, a 2010 case: Rule 43 of the Rules of Court provides that appeals from the judgment of the VA r shall be taken to the CA, by filing a petition for review within fifteen (15) days fr om the receipt of the notice of judgment. Furthermore, upon the filing of the petition, the petitioner shall pay to the CA clerk of court the docketing and other lawful fees ; Non-compliance Non-compliance with the procedural requirements shall be a sufficient ground for the petition’s dismissal.
Thus, payment in full of docket f ees within the prescribed period is not only mandatory, but also jurisdictional. It is an essential requirement, without which, the decision appealed from would become final and executory as if no appeal has been filed. From CA to SC under Rule 45 Pure questions of law File within 15 days from the receipt of judgment of CA COMPLIANCE OF & EXECUTION OF DECISIONS OR ORDER OF VOLUNTARY ARBITRATOR When the decision become final & executory, the execution of the award or decision shall be in accordance with Rule 39 of the Rules of Court Remember that the decision of VAr shall be final & executory after 10 calendar days from receipt of copy of the decision by the parties Therefore you must perfect your appeal within 10 calendar days Pero dba 15 days man sa Rule 43 ug 45? I dunno, kung unsa jud. Wala man sa cases gud. Pero para safe, follow the 10 days nalang kay mao man gisulti sa Article 262-A. Or pwede pud cya final & executory na after 10 days pero the reglementary period to appeal is 15 days. Pero pwede ba na ma-appeal kung final & executory na? Hmmmm. Wala ku kabaw. If kabaw mu,ingna ku ha An appeal to CA (Rule 43) or SC (Rule 45) does not stay the execution of the VAr You have to secure an injunctive relief or TRO to stop the enforcement of the decision or the execution In instances of non-compliance by either or both parties, a motion to enforce or execute the award may be filed with the VAr who may issue a writ of execution requiring either the sheriff of the NLRC or the regular courts, or any public official whom the parties may designate in the submission agreement to execute the final decision. In the absence of VAr or in case of his incapacity, the motion may be filed with the Labor Arbiter in the region having jurisdiction over the work place . The filing of the motion for issuance of writ f execution shall be without prejudice to any other action the aggrieved party may take against the non-complying party such as petition for contempt or imposition of fines. Pre-Execution Conference Within 2 working days from the receipt of the motion for issuance of writ of execution, the VAr or in case of his incapacity, the Labor Arbiter before whom the motion is filed shall schedule a pre-execution conference. Purpose: To thresh out matter relevant to execution A writ of execution shall be i ssued upon a decision that finally disposes of the actions or proceedings. The sheriff or other authorized officer shall be guided by the NLRC Manual on Execution of judgment
UNFAIR LABOR PRACTICE Art. 247. Concept of unfair labor practice and procedure for prosecution thereof . Unfair labor practices violate the constitutional right of workers and employees to self-organization, are inimical to the legitimate interests of both labor and management, including their right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect, disrupt industrial peace and hinder the promotion of healthy and stable labor-management relations. Consequently, unfair labor practices are not only violations of the civil rights of both labor and management but are also criminal offenses against the State which shall be subject to prosecution and punishment as herein provided. Subject to the exercise by the President or by the Secretary of Labor and Employment of the powers vested in them by Articles 263 and 264 of this Code, the civil aspects of all cases involving unfair labor practices, which may include claims for actual, moral, exemplary and other forms of damages, attorney’s fees and other affirmative relief, shall be under the jurisdiction of the Labor Arbiters. The Labor Arbiters shall give utmost priority to the hearing and resolution of all cases involving unfair labor practices. They shall resolve such cases within thirty (30) calendar days from the time they are submitted for decision. Recovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code. No criminal prosecution under this Title may be instituted without a final judgment finding that an unfair labor practice was committed, having been first obtained in the preceding paragraph. During the pendency of such administrative proceeding, the running of the period of prescription of the criminal offense herein penalized shall be considered interrupted: Provided, however, that the final judgment in the administrative proceedings shall not be binding in the criminal case nor be considered as evidence of guilt but merely as proof o f compliance of the requirements therein set forth.
Art. 248. Unfair labor practices of employers. It shall be unlawful for an employer to commit any of the following unfair labor practice: a. To interfere with, restrain or coerce employees in the exercise of their right to self -organization; b. To require as a condition of employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs; c. To contract out services or functions being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their rights to self-organization;
d. To initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization, including the giving of financial or other support to it or its organizers or supporters; e. To discriminate in regard to wages, hours of work and other terms and conditions of employment in order to encourage or discourage membership in any labor organization. Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment, except those employees who are already members of another union at the time of the signing of the collective bargaining agreement. Employees of an appropriate bargaining unit who are not members of the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such non-union members accept the benefits under the collective bargaining agreement: Provided, that the individual authorization required under Article 242, paragraph (o) of this Code shall not apply to the non-members of the recognized collective bargaining agent; f. To dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code; g. To violate the duty to bargain collectively as prescribed by this Code; h. To pay negotiation or attorney’s fees to the union or its of ficers or agents as part of the settlement of any issue in collective bargaining or any other dispute; or
i. To violate a collective bargaining agreement. The provisions of the preceding paragraph notwithstanding, only the officers and agents of corporations, associations or partnerships who have actually participated in, authorized or ratified unfair labor practices shall be held criminally liable. Art. 249. Unfair labor practices of labor organizations. It shall be unfair labor practice for a labor organization, its officers, agents or representatives: a. To restrain or coerce employees in the exercise of their right to self-organization. However, a labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of membership; b. To cause or attempt to cause an employer to discriminate against an employee, including discrimination against an employee with respect to whom membership in such organization has been denied or to terminate an employee on any ground other than the usual terms and conditions under which membership or continuation of membership is made available to other members; c. To violate the duty, or refuse to bargain collectively with the employer, provided it is the representative of the employees; d. To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other things of value, in the nature of an exaction, for services which are not performed or not to be performed, including the demand for fee for union negotiations; e. To ask for or accept negotiation or attorney’s fees from employers as part of the settlement of any issue in collective bargaining or any other dispute; or
f. To violate a collective bargaining agreement. The provisions of the preceding paragraph notwithstanding, only the officers, members of governing boards, representatives or agents or members of labor associations or organizations who have actually participated in, authorized or ratified unfair labor practices shall be held criminally liable.
REQUISITES; NATURE Self-organization is the lifeblood of the industrial democracy, the right to self-organize has been enshrined in the
constitution itself & any act intended to weaken or defeat the right is regarded by law as an offense. The offence is technically called UNFAIR LABOR PRACTICE. Literally, it does not mean an unfair practice by the labor but a practice unfair to labor The offender may either be an employer or labor organization. Article 246 is the conceptual mother of ULP. It declares that it is unlawful for any person to restrain, coerce, discriminate against or unduly interfere with the exercise of the right to self-organization The victim of this offense is not just the workers as a body & well-meaning employers who value industrial peace, but the State as well. Thus the attack to this constitutional right is considered a crime which therefore carries both civil & criminal liabilities. Commission of ULP at the enterprise level needs the presence of certain elements/requisites: 1) There is EE relationship between the offender & the offended This firs element is required because ULP is negation of, a counteraction to, the right to organize which is available only to employees in relation to their employer No organizational right can be negated or assailed if EE relationship is absent on the first place The injured party comes within the def inition of “employee” as that term is defined by the code 2) The act done is expressly defined in the Labor Code as an act of ULP Specifically Articles 248 & 261 for an employer & 249 for a labor organization
Article 261 amplifies Article 248 (i) by stating that violation of a CBA is ULP only if the violation is gross in character flagrant and/or malicious refusal to comply with the economic provisions of the CBA These prohibited acts are all related to the workers’ self -organizational right & to the observance of a CBA The only possible exception is Article 248 (f) referring to dismissing or prejudicing an employee for giving testimony under the code “Not every unfair act is ULP ” Promoting an employee not on the basis of merits may be bad human resource management but does not amount t ULP The nature of ULP therefore is that it has a limited meaning because it is a labor relations concept with a statutory definition. It refers only to acts opposed to the workers’ right to organize. Without that element, the act, no matter how unfair, is not ULP as legally defined Under Article 247, ULP has civil as well as criminal aspects:
CIVIL ASPECT Include liabilities for damages Substantial evidence Labor Arbiter / Voluntary Arbitrator
CRIMINAL ASPECT To prosecute ULP as a criminal offense is not possible until after finality of judgment in the labor case Proof beyond Reasonable Doubt Concurrent Jurisdiction of MTC or RTC
ACTS OF UNFAIR LABOR PRACTICE: EMPLOYER & UNION; SURFACE BARGAINING; BLUE SKY BARGAINING; FEATHERBEDDING; YELLOW DOG CONTRACT; RUN AWAY SHOP PART I: UNFAIR LABOR PRACTICES COMMITTED BY THE EMPLOYER The law on ULP is not intended to deprive the employer of his fundamental right to prescribe & enforce such rules as he honestly believes to be necessary to the proper, productive & profitable operation of his business. In one case, SC said that: “considering that the employee’s dismissal, because of charges against the manager is not connected with or necessarily arising from union activities, the dismissal did not constitute ULP. Despite the employee’s right to self -organization, the employer still retains his inherent right to discipline his employees, his normal prerogative to hire or dismiss them ” It is the prerogative of the employer to promote, transfer or even demote its employees, UNLESS there are instances which directly point to the interference by the company with the employees’ right to self organization. In summarized form, the 9 ULP acts of an employer under Article 248 are: 1) Interference 6) Discrimination because of 2) “Yellow Dog” Contract testimony 3) Contracting Out 7) Violation of duty to bargain 4) Company Unionism 8) Paid negotiation 5) Discrimination for or against 9) Violation of CBA union membership FIRST ULP: INTERFERENCE (248A) Outright & unconcealed intimidation is the most obvious form of interference. Even if only on one occasion, it constitutes ULP & will support a “cease & desist” order by the board Instances wherein the SC said that employer is guilty of interference : Superintendent of the employer threatened the employees with cutting their pay, increasing rent of the company houses, or clo sing the plant if they supported the union Employer encouraged the employees to sign a petition repudiating the union Persistent interrogation of employees to elicit information as to what had happened at union meetings & the identity of the active union employees was held as violative of organizational rights of employees. NOTE: Interrogating an employee as to his union affiliation is not per se ULP but circumstances may make it such In order that the questioning of an employee concerning his union activities would not be deemed coercive, the employer must communicate to the employee the purpose of questioning, assure him that no reprisal would take place, & obtain his participation on voluntary basis ULP even before the formation of the union can also happen. If the employees were dismissed because they were soliciting signatures in order to form a union within a plant. Dismissal of union members upon their refusal to give up their membership, under the pretext of retrenchment due to reduced dollar allocations Refusal over a period of years to give salary adjustments according to the improved scales in the CBA Dismissing of an old employee allegedly for inefficiency, on account of her having joined a union & engaging in union activities Employer’s announcement of benefits prior to a representation election, where it is intended to induce the employees to vote against the union When employer dismisses his employees despite their permanent status, because he fears that of the employees’ contracts were renewed, there would be a strike in the establishment
A threatened lockout by an employer wherein the primary purpose thereof was to interfere with the employees’ right to organize Totality of Conduct Doctrine The doctrine holds that the culpability of employer’s remarks was to be evaluated not only on the basis of their implications, but against the background of & in conjunction with collateral circumstances. Under this doctrine, expressions of opinion by an employer, though innocent in themselves, frequently were held to be culpable because of the employer’s labor relations or anti -union bias or because of their connection with an established collateral plan of coercion & interference . Under this doctrine, it was held, as previously observed, that an expression which might be permissibly uttered by one employer, might in the mouth of a more hostile employer, be deemed improper & consequently actionable as ULP Sale in Bad Faith The sale of the factory as a simulated device resorted by the employer merely to get rid of the employees who were members of the union SECOND ULP: “YELLOW DOG” CONTRACT (248B) Contract provisions whereby an employee agrees that during the period of his employment he will not become a member of a labor union is an act of ULP The “yellow dog” contract is a promise extracted from the workers as a condition of employment that they are not to belong to or attempt to foster a union during their period of em ployment. The typical “yellow dog” contract is an at -will employment agreement which contains, in addition the usual provisions for employment, the 3 following provisions: 1) A representation by an 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 “Yellow Dog” contract is an exception to the rule that only when an employer-employee relationship exists will ULP may be committed THIRD ULP: CONTRACTING OUT (248C) Contracting out, itself, is not ULP; it’s the ill intention that makes it so. I decided to do this in tabulated format nalang
GUILTY OF ULP NOT GUILTY OF ULP An employer is not guilty of ULP in contracting work An employer’s contracting out of work is itself ULP where it is motivated by a desire to prevent his out for business reasons such as decline in employees from organizing & selecting an EBR, rid business, the inadequacy of his equipment, or the himself of union men, or escape his statutory duty need to reduce cost, even if employer’s estimate to bargain collectively with his employees’ of his cost is based on a projected increase bargaining representative attributable to unionization . The company can determine in its best judgment whether it should contract out the performance of some of its work FOR AS LONG AS THE EMPLOYER IS MOTIVATED BY GOOD FAITH, & THE CONTRACTING OUT MUST NOT HAVE BEEN RESORTED TO CIRCUMVENT THE LAW OR MUST NOT HAVE BEEN THE RESULT OF MALICIOUS OR ARBITRARY ACTION
SITUATION: CONTRACTING OUT WAS RESTRICTED BY CBA Employer is guilty of ULP in contracting out the work An employer is not guilty of ULP when he exercises to an outside agency, and such contracting out was his management prerogative, such as reassignment restricted by a valid CBA. of employees When a CBA was entered into, the company could have chosen not to agree with the stipulation against contracting out of services OR it could have reserved the right to effect dissolut ion or exercise the management prerogative of reassignment. Thus, the ULP strike called by the union was VALID.
RUNAWAY SHOP
A “runaway shop” is defined as an industrial plant moved by its owners fro m one location to another to escape union labor regulations or state laws, but the term is also used to describe a plant removed to a new location in order to discriminate against employees at the old plant because of their union activities. It is one wherein the employer moves its business to another location or it temporarily closes its business for anti-union purposes. A runaway shop in this sense is motivated by anti -union animus rather than for business reasons Employer is guilty of ULP if his purpose for moving Employer is not guilty of ULP if the purpose of the business from one location to another if moving the business from location to another is for motivated by anti-union animus. a legitimate business purpose. “ Animus” means a feeling of ill will arousing active hostility In Complex Electronics Employees Association vs NLRC (p. 310 of Azucena), SC made the following pronouncements:
Ionics was not set up merely for the purpose of transferring the business of Co mplex. At that time the labor dispute arose at Complex, Ionics was already existing as an independent company. It cannot be said that the temporary closure of Complex & its subsequent transfer of business to Ionics was for anti -union purposes. The union failed to show that the primary reason for the closure of the establishment was due to the union activities of the employees . The mere fact that one or more corporations are owned or controlled by the same or single stockholder is not sufficient ground for disregarding separate corporate personalities. THEREFORE, THE TRANSFER OF COMPLEX TO IONICS WAS NOT A ULP ACT BECAUSE IT WAS DONE FOR A LEGITIMMATE BUSINESS PURPOSE
FOURTH ULP: COMPANY-DOMINATION OF UNION (248D) Domination of a labor union usually manifests in the following forms: 1) Initiation of the Company Union Idea – this may further occur in 3 styles: a. Outright formation by the employer of his representatives b. Employee formation on outright demand or influence by the employer c. Managerially motivated formation by employees 2) Financial Support to the Union – An employer commits ULP if he defrays the union expenses or pays the attorney’s fees to the attorney who drafted the CBL of the union 3) Employer Encouragement & Assistance – Immediately granting the union exclusive recognition as a bargaining agent without determining whether the union represents the majority is an illegal form of assistance amounting to ULP 4) Supervisory Assistance – This takes the form of soliciting membership, permitting union activities during working time or coercing employees to join the union by threats of dismissal or demotion. A labor union is company-dominated where it appears that key officials of the company have been forcing the employees belonging to a rival union to join the former under the pain of dismissal should they refuse to do so. Also when key officials as well as their legal counsels have attended the election of officers of a certain union When officers of the rival union were dismissed by the company is also a ULP act by the employer.
FIFTHE ULP: DISCRIMINATION (248E) What the law prohibits is discrimination to encourage or discourage membership in a labor organization. Where the purpose is to influence the union a ctivity of the employees, the discrimination is unlawful. DISCRIMINATION IS NOT THE SAME A DIFFERENTIATION/CLASSIFICATION E.g. it is common management practice to classify jobs & grant them varying levels of pay or benefits package 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 or discourage me mbership in any labor organization”. Discouraging membership in a labor organization includes not only discouraging participation in union activities such as a legitimate strike. Discrimination in work quota In one case, the pharmaceutical company increased the sales quota of the union president & vicepresident to 400% & 300% respectively. The company cannot give a valid explanation for such. Union president was transferred from Manila to C ebu when the union was still being organized Discrimination on Bonus Allocations & Salary adjustments Where a company, contrary to its previous practice of dividing equally a certain percentage of its net profits as Christmas Bonus, allocated 50% thereof only to its Manila Hotel Employees, some of whom were granted year-end bonuses, while its Pines Hotel Employees, where there exists a labor union, did not receive any year-end bonus. There is unfair & unjust discrimination in granting of salary adjustment where the evidence shows that 1) The management pays the employees of t he unionized branch 2) Where salary adjustments were granted to employees of one of its non-unionized branches although it was losing in its operations 3) The total salary adjustments given every 10 of its unionized employees would not even equal the salary adjustments given to 1 employee in the unionized branch Discrimination in Layoff or Di smissal Even if the dismissal was for a legitimate reason, there is still ULP when only unionists were permanently dismissed and non-unionists were not. The manner of exercising the prerogative of dismissing employees must not be tainted of abuse of discretion Discrimination by blacklisting A blacklist has been defined as a list of persons marked out for special avoidance, antagonism, or enmity on the part of those who prepare the list or those among it is intended to circulate, as where trade union “blacklists” workmen who refuse to conform to its rules, or where a list of insolvent or untrustworthy persons is published by a commercial agency or mercantile association.
When it is resorted to by a combination of employers to prevent employment of employees for union activities, it may constitute ULP It may also give rise to a right of action for damages by the employees prejudiced under A8 if the NCC Indirect Discrimination Employer is guilty of ULP if he discriminates an employee for having filed charges or for having given or being about to give a testimony. The following indirect acts were held to be ULP: The dismissal of a laborer on account of union activities of his brother The discharge of an employee due to the union activities of his wife The discharge of a wife due to a union activity of the husband Test of Discrimination The underlying for the discharge must be established in order to determine whether or not the discharge was discriminatory The fact that a lawful cause for discharge exists is NOT a defense where the employee is actually discharged due to his union activities. If the discharge was actually motivated by a lawful reason , the fact that the employee is engaged in union activities at the time will not lie against the employer & prevent him from the exercise of his business judgment to discharge an employee for cause. An inference that the discharge of an employee was motivated by his union activity must be based upon evidence, direct or circumstantial, not upon mere suspicion . Constructive Discharge Where the employer prohibits the employees from exercising their rights of self-organization, on pain of discharge, and the employee quits as a result of the prohibition, a constructive discharge occurs, which maybe remedied in a ULP proceeding Discharge Due to Union Activity: A Question of Fact The allegation must be supported by a substantial evidence considering the record as a whole. Substantial Evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It means such evidence which affords a substantial basis from which the fact in issue can be reasonably inferred Valid Discrimination: Union Security Clause This is a form o f encouragement of union membership which is not considered ULP This is where the management the union enter into a CBA containing a union security clause A union security clause essentially requires membership in the union so that an employee may retain his job and the union’s existence is a ssured Union security is a generic term which is applied to & comprehends “closed shop”, “union shop”, “maintenance of membership” or any other form of agreement which imposes upon the employees of the obligation to require or retain union membership as a condition affecting employment Kinds of Union Security Agreements I already discussed this under the topic of Right to Self-Organization, sub-topic Union Security Clause. Please refer there Validity of Closed Shop Agreement A closed shop is a valid form of union security, & such provision in the CBA is not a restriction of the right of freedom of a ssociation guaranteed by the constitution The law has sanctioned stipulations for the union shop & the closed shop as a means of encouraging workers to support support & join the labor union of their own choice as their their representative in the negotiation of their demands & the protection of their interests visà-vis the employer. Advantages & Disadvantages of Closed-Shop Agreement ADVANTAGES DISADVANTAGES Increases the Strength & bargaining power of labor Results in monopolistic domination of employment organizations by labor organizations Prevents non-union workers from sharing in the Interferes with the freedom of contract & personal benefits of the union’s a ctivities without also liberty of the individual worker sharing its obligations Prevents the weakening of labor organizations by Compels employers to discharge all non-union discrimination against union members workers regardless of efficiency, length of service, etc. Eliminate the lowering of standards caused by Facilitates the use of labor organizations by competition of non-union workers unscrupulous union leaders, for the purpose of extortion, restraint of trade, etc. Enables labor organizations effectively to enforce Denies to non-union workers the opportunity for collective agreements employment Facilitates the collection of dues & enforcement of Enables union to charge exorbitant dues & initiation union rules fees Creates harmonious relations between the employer & employee Valid Dismissal because of application of union security clause
The dismissal by the company of an employee pursuant to a labor union’s demand in accordance with a union security agreement does not constitute ULP Dismissal Pursuant to Closed-Shop must clearly appear in Contract There should be a clear & unequivocal statement that the loss of the status of a member of good standing in the union shall be a cause for dismissal Union shop, as with closed-shop provisions, must be strictly construed against the existence of union shop. Due Process Required in Enforcing Union security Clause; Intra-union matter becomes termination dispute with employer Although a union security clause in a CBA maybe validly enforced & dismissal pursuant thereto may likewise be valid, this does not erode the fundamental requirement of due process While it is true that the issue of expulsion of the local union officers is originally between the local union & federation, hence intra-union in character, the issue was later on converted into a termination dispute when the company dismissed the petitioners from work without the benefit of a separate notice & hearing . Liability of Union to pay wages & fr inge benefits of illegally dismissed employee When the employer compelled the employee to go on forced leave upon recommendation of the union for alleged violation by the employee of the closed-shop agreement, the employee must be reinstated and the union must pay the wages & fringe benefits which the employee failed to receive as a result of her forced leave & to pay attorney’s fees. The employer would not have forced the employee to go on forced leave if it weren’t for the insistence & demand. Employer in Good Faith is not liable Where the employer dismissed his employees in the belief in good faith that such dismissal was required by the closed-shop provision of the CBA with the union, he may not be ordered to pay back compensations to such employees although d ismissal is found to b illegal. Employees not covered by closed-shop agreement 1) Any employee who at the time the closed agreement takes effect is a bona fide member of religious organization which prohibits its members from joining labor unions on religious grounds 2) Employees already in the service & already members of a labor union other than the EBR 3) Confidential Employees 4) Employees excluded from the closed shop agreement by express terms of the agreement Agency fee instead of Union Membership Agency fees is an amount paid by a non-union member who benefits from the CBA of the EBR. SIXTH ULP: DISCRIMINATION BECAUSE OF TESTIMONY (24 8F) The law protects the right of the workers to testify on matters covered by the labor code If this right is not protected, the right to self-organization will be indirectly defeated because the employees will fear their employer’s reprisal. Employer’s reprisal against a testifying employee is ULP because, it violates the right to engage in concerted activities. Concerted activity does not always require a number of people acting in a unison. An employee acting alone in pursuing a group interest maybe said to be doing a concerted activity which the employer may not curtail. This situation is analogous to an employer who retaliates against an employee for refusing to testify in favor of such employer It is plausible that a strike can be traced proximately to labor standards violation. To say that labor standards violations is not a strikeable is TRUE ONLY IF THERE IS NO RETALIATION FROM THE EMPLOYER THAT AMOUNTS TO ULP UNDER 248(F) If labor standards are violated & the employer does not retaliate against the employees who reported the violations, there is no ULP & no strikeable situation. In this case, the enforcementvisitorial function of DOLE (Article 128) or the adjudicatory power of that office or of the NLRC will operate. SEVENTH ULP: VIOLATION OF THE DUTY TO BARGAIN (248G) Already discussed under to topic of duty to bargain EIGHTH ULP: PAID NEGOTIATION (248H) It is a punishable act of ULP for the employer to pay the union or any of its officers or agents any negotiation fee or attorney’s fees as part of settlement in collective bargaining or labor dispute NINTH ULP: VIOLATION OF THE CBA (248I) Implementation is still part of the bargaining process which, it should be recalled, rests on the parties “duty to bargain” Duty to bargain requires good faith BUT SUCH VIOLATION TO CONSTITUTE ULP MUST BE GROSS VIOLATION Flagrant and/or malicious refusal to comply with the economic provisions of the collective bargaining agreement Examples of economic provisions of the CBA: Wage increase, and leaves; like: vacation leave, sick leave, emergency leaves, etc.
PART II: UNFAIR LABOR PRACTICES COMMITTED BY THE LABOR ORGANIZATION Article 249 of the Labor Code Restrain or Coercion by Labor Organization; Interference by Union is not ULP
Interference by a labor organization is not ULP . A labor organization may interfere in the employee’s right o self -organization as long as the interference does not amount to restraint or coercion. Interference in the exercise exercise of the right to self-organize self-organize is in itself a function of self-organizing. To illustrate the above: a. Where a union campaigns for membership even among the members of another union. b. A union at the a ppropriate time, files a petition to dislodge an incumbent bargaining union. c. A bargaining union, through a union security clause, requires an incoming employee to join the union, or when the occasion arises, persuades non-striking employees to join a strike. The above are examples of ac ts of interference committed by the labor organization but are not considered as ULP. They a re, instead manifestations of union dynamics & democracy as whose ultimate beneficiaries presumably will be the workers themselves. Mura ang gusto isulti ni Azucena ba kai murag normal ra a ang ng interference done by the labor organization. Kung gnhn ka man-recruit ug members, sort of mudu-ul man jd ka sa worker para i-convince cya na mu-apil sa imuha union. Interference is in itself part of the right to self-organize. If i-compare na nmu sa employer, lahi ra jud cya. Kay sa employer sort of i-threat niya ang employee para d mu-apil ug union. Meaning, ang iyang right to self-organize jud ang gikuha sa employer. AS IN ABSOLUTELY D CYA PWEDE MU-APIL UG UNION, sa labor organization, gi-induce raka para mu-apil ka nila Coercing participation in Strike Violation is committed when a union threatens the employees with bodily harm in order to force them to strike. A union violates the law when: To restrain or coerce non-strikers from working during a strike Assaults or threatens to assault the non-strikers Threatens them with the loss of their jobs Blocks their ingress or egress from the plant Damages non- strikers’ automobiles or forces them of f the highway Physically prevents them from working Sabotage the employer’s property in their presence Union-Induced Discrimination The law forbids as ULP union attempts to cause an employer : 1) To grant advantages for union members over non member, 2) For union members in good standing over suspended or expelled members 3) For union members over permit holders 4) For members of the union executive board over more senior employees 5) For members of one union over members of another union 6) For members of one local over members of another local The forbidden discrimination may refer to terms of hiring or firing, lay-off, seniority, or in benefits Arbitrary use of Union security Clause The broad rule is that the union has the right to determine its membership & to prescribe the conditions for the acquisition & retention thereof. Consequently, admission to membership may not be compelled. This rule is qualified in the case of labor unions holding a monopoly in the supply of labor, either in a given locality OR as regards a particular employer by reason of a closed-shop or similar agreements In such case, qualified applicants may not be arbitrarily excluded from membership & their admission may not be barred by unreasonable rules. If an employee is dismissed from service owing to ULP on the part of the union, such employee is entitled to reinstatement as member of union & to his former or substantially equivalent position in the company, without prejudice to his seniority and/or privileges, & with back pay, which back pay shall be borne exclusively by the union. Take Note ha, EXCLUSIVELY BY THE UNION Union security clauses cannot be used by union officials against an employer, much less their own members, except with a high sense of responsibility, fairn ess, prudence, & judiciousness. A union member may not be expelled from her union & consequently her job, for personal or impetuous reasons for causes foreign to the closed- shop agreement & in a manner characterized by arbitrariness & whimsicality Union may not arbitrarily exclude qualified applicants for membership or deny readmission It is well-settled that labor unions are not entitled to arbitrarily exclude qualified applicants for membership, & a closed-shop provision would not justify the employer in discharging or a union in insisting upon the discharge of an employee whom the union thus refuses to admit to membership, without any reasonable ground therefore. When company was not guilty of ULP
When the union insisted insisted on the discharge of employee, employee, and the employer exhibits exhibits reluctance to do so, the company is not guilty of ULP. Without the insistence of the union, company would not have discharged the employee. Right of the employee dismissed from service due to ULP of a union If an employee is dismissed from service owing to ULP on the part of the union, such employee is entitled to reinstatement as member of union & to his former or substantially equivalent position in the company, without prejudice to his seniority and/or privileges, & with back pay, which back pay shall be borne exclusively by the union. AGAIN, EXCLUSIVELY BORNE BY THE UNION The mere act of asking help from another union cannot constitute disloyalty. At most it was an act of selfpreservation of workers who, driven to desperation, found shelter in another union who tool the cudgels for them. The absence of a full blown investigation of the expelled members of the union by an impartial body provided no basis for the union’s accusation of disloyalty Employees are entitled to due process BEFORE they may be exp elled from the union on charge of disloyalty Refusal to Bargain (249C) A union violates its duty to bargain collectively by entering negotiations with a fixed purpose of not reaching an agreement or signing a contract. This ULP is intended to insure that u nions approach the bargaining table with the same attitude of willingness to agree as such is also required from the management. FEATHERBEDDING FEATHERBEDDING (249D) ( 249D) Also known as “MAKE WORK ARRANGEMENTS” A term given to employee practices which create or spread employment by unnecessarily maintaining or increasing the number of employees used, or the amount of time consumed to work on a particular job. This stems from the desire on the part of the employees for job security in the face of technological improvements or in the face of employer subcontracting CBA DEAL WITH THE EMPLOYER (249E) Asking for or accepting some “fee” fro m the employer as of CBA or dispute settlement is considered ULP by the union In fact, such act is more than ULP – it is a reprehensible betrayal of trust that deserves condemnation of the highest order BEFORE, this was a ground for cancellation of union registration. But after the amendments, this act was is not anymore a ground for cancellation of union registration. PRESENTLY, KARUN, DLI NA CYA GROUND FOR CANCELLATION SURFACE BARGAINING A sophisticated pretense in the form of apparent bargaining This does not satisfy the statutory duty to bargain – the duty is not discharged by merely meeting together or simply manifesting a willingness to talk. It requires more than a willingness to enter upon a sterile discussion of union management differences BLUE SKY BARGAINING When union makes exaggerated or unreasonable proposals. The demands of the union must be based on economic reasons. It must be reaso nable. PRESCRIPTIVE PERIOD; PENAL PROVISION Prescriptive Period under Article 290 Art. 290. Offenses. Offenses penalized under this Code and the rules and regulations issued pursuant thereto shall prescribe in three (3) years. All unfair labor practice arising from Book V shall be filed with the appropriate agency within one (1) year from accrual of such unfair labor practice; otherwise, they shall be forever barred.
Penal provision under Article 288 Art. 288. Penalties. EXCEPT as otherwise provided in this Code , OR UNLESS the acts complained of hinge on a question of interpretation or implementation of ambiguous provisions of an existing collective bargaining agreement, any violation of the provisions of this Code declared to be unlawful or penal in nature shall be punished with a fine of not less than One Thousand Pesos (P1,000.00) nor more than Ten Thousand Pesos (P10,000.00) or imprisonment of not less than three months nor more than three years, or both such fine and imprisonment at the discretion of the court . In addition to such penalty, any alien found guilty shall be summarily deported upon completion of service of sentence. Any provision of law to the contrary notwithstanding, any criminal offense punished in this Code, shall be under the concurrent jurisdiction of the Municipal or City Courts and the Courts of First Instance.
FINE: Not less that 1,000 nor more than 10,000 IMPRISONMENT: Not less than 3 months nor more than 3 years I drew a table above dba about the civil aspect & criminal aspect of ULP, review nalang that one. I wrote man there when you can file the criminal aspect of ULP
JURISDICTION & PROCEDURE Art. 217. Jurisdiction of the Labor Arbiters and the Commission.
a. Except as otherwise provided under this Code, the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the following cases involving all workers, whether agricultural or nonagricultural: 1. Unfair labor practice cases; ULP cases shall be filed with: JURISDICTION: Labor Arbiter VENUE: Regional Arbitration Branch having jurisdiction over the workplace of the complainant or petitioner NOTE, VERY IMPORTANT: Dba I explained naman sa topic on Voluntary Arbitration nga cases cognizable by the Labor Arbiter can also be submitted to Voluntary Arbitration . Remember that, Art. 217 is compulsory arbitration . And I already said dba nga under Art. 262, the th e parties MAY submit to a Voluntary Arbitrator or panel “ALL OTHER DISPUTES INCLUDING UNFAIR LABOR PRACTICES and bargaining deadlocks. Nya I said naman sa Voluntary Arbitration dba nga LAW PREFERS OR GIVES PRIMACY TO VOLUNTARY ARBITRATION INSTEAD OF COMPULSORY ARBITRATION . And look at the last paragraph of Art. 261, IT FORBIDS A COMPULSORY ARBITRATOR FROM ENTERTAINING A DISPUTE PROPERLY BELONGING TO THE JURISDICTION OF A VOLUNTARY ARBITRATOR. Sabotable ra? HEHE If the ONLY question is the legality of the expulsion of an employee from the union BLR BUT if the question extended to the dismissal of the employee (like sa closed-shop agreement gani, kato i-expel sa union and employee unya ipugos pud nila ang employer nga i-dismiss cya kay d naman member sa union) Labor Arbiter Decisions of the Labor Arbiter is appealable to NLRC. Within 10 days from receipt of the adverse decision of Labor Arbiter A mere notice of appeal is not sufficient. It must be accompanied with a verified memorandum of appeal. Decisions of the NLRC is a ppealable to CA under Rule 65 CA to Supreme Court Labor Arbiter NLRC Court of Appeals Supreme Court No need to explain na the p rocedure in Voluntary Arbitration ha kai naa rana sa previous topics
RELIEF/S AGAINST ULP CEASE AND DESIST ORDER After investigation, and the person person named in the complaint is found t be guilty guilty of ULP, then cease desist
order shall be issued. This is an order requiring such person to cease & desist from such ULP and take a ffirmative actions as will effectuate the policies of the act including, BUT not limited to: Reinstatement of Employee Back pay Seniority Rights To support a cease & desist order, the records must show: 1) That the restrained misconduct was an issue in the case 2) That there was a finding of fact of said misconduct 3) Such finding of fact was supported by evidence A cease & desist order is not invalidated because the act complained of was voluntarily discontinued prior to or during the course of proceedings. If the act happened so long a time that there is no longer any threat or probability of recurrence, a cease & desist order will not be justified. AFFIRMATIVE ORDER Where the employer dismissed, discharged or otherwise prejudiced or discriminated against an employee for having filed against or for having given or about to give testimony, the court, in addition to the cease & desist order may issue an affirmative order to the employer to reinstate said employee with back pay from date of discrimination The order may usually direct the full reinstatement of the discharged employee to his substantially equivalent position without prejudice to his seniority rights & other rights & privileges. Likewise, when an employer has failed or refused to bargain with the proper bargaining agent of his employees, in addition to the usual cease & desist order, an affirmative order directing the employer to bargain with the bargaining agent may also be issued. DISESTABLISHMENT Where the employer had initiated, dominated, or assisted in or interfered with the formation or establishment of any labor organization or contributed financial aid or other support to it, in addition to the cease & desist order, an order directing the employer to withdraw all recognition from the dominated labor union & to disestablish the same. ULP CANNOT BE SUBJECT TO COMPROMISE In view of public interest, ULP cannot be a subject of a compromise. The relation between capital & labor are not merely contractual. They are so impresses with public interests that labor contracts must yield to the common good. But in 1997, the court affixed a stamp of approval to a compromise settling a ULP strike. It explained:
“while we do not abandon the rule that ULP acts are beyond & outside the sphere of compromises ; the agreement herein was voluntarily entered into & represents as a reasonable settlement; this it binds the parties” ULP IN A GIVEN PERIOOD SHOULD BE INCLUDED IN A SINGLE CHARGE When a labor union accuses an employer of acts of ULP allegedly committed during a period of time, the charges should include all acts of ULP committed against any or all members of the union during that period. EMPLOYER’S RESPONSIBILITY FOR ULP ACTS OF SUBORDINATE OFFICIALS The following considerations were often employed in deciding the issue: Knowledge by the employer of the employee’s improper acts Where it was established that the employer was aware of the employee’s wrongdoing, his failure to prevent continuation of the course of conduct – EMPLOYER RESPONSIBLE Continuity of improper conduct by employee A single utterance by a supervisory employee, whether improvident or deliberate on the employee’s part, was not ordinarily & in absence of proof of actual a uthority – EMPLOYER RESPONSIBLE Employer’s past policy & attitude The similarity between the past attitude or policy of the employer & that of the offending supervisory employee might, in certain cases , be indicative of a concert of effort between the two.
