GENERAL PRINCIPLES LABOR RELATIONS: RELATIONS : The interactions between the employer and employee or their representatives and the mechanism by which the standards and other terms and conditions of employment are negotiated, adjusted, and enforced. ART. XII, Sec 3 (1987 Constitution): Constitution): Guarantees to all workers their right, among others to: (1) self-organization, (2) collective bargaining and negotiations, (4) peaceful and concerted activities, including their right to strike in accordance with law, and (4) participate in policy and decision-making processes, affecting their rights and benefits as may be provided by law. LABOR ORGANIZATION: Any union or association of employees, which exist in whole or in part, for the purpose of collective bargaining with employers, concerning the terms and conditions of employment
SUPERVISORY EMPLOYEE: EMPLOYEE : Those who, in the interest of the employer, effectively recommend managerial actions and the exercise of such authority is not merely routinary or clerical. Absent an ER-EE relationship, there is no labor relation to speak of. If there is no ER-EE, there is no basis of organizing for purposes of collective bargaining. FOUR-FOLD TEST: (SePa-DisCo) (1) Selection and Selection and engagement of employee; (2) Payment of Payment of Wages; (3) Power of Dismissal; Dismissal; (4) Power of Control (refers to the employer’s power to control or the right to control the employee NOT ONLY AS TO THE RESULT OF THE WORK, but also TO THE MEANS AND METHODS by which the same is to be accomplished) CONSEQUENCES OF VIOLATION OF WORKERS’ RIGHT TO
LEGITIMATE LABOR ORGANIZATION: ORGANIZATION : Any labor organization duly registered with DOLE. COMPANY UNION: UNION : Any labor organization whose formation, function, or administration has been assisted by any act defined as ULP. LABOR DISPUTE: DISPUTE : Includes and controversy or matter concerning: (1) Terms or conditions of employment; (2) Association or representation of persons in negotiating the terms and conditions of employment, regardless of whether the disputant stands in the proximate relation of employer and employee. COMPULSARY ABITRATION (MANDATORY CONCILIATIONMEDIATION): MEDIATION) : The process of settlement of labor disputes by a government agency, which has the authority to investigate and make award binding on all the parties (Art. 234). LA and NLRC (in the exercise of its original jurisdiction) shall exert all efforts towards the amicable settlement (Art. 227). A result of which may be a compromise agreement, under Art. 233. Relate further to Single Entry Approach (SEnA). Requirements for Compromise Agreement: SUBSTANTIAL: (1) It must be freely entered into; (2) It must not be contrary to law, morals, or public policy; (3) It must be reasonable; (4) It must be approved by the authority before whom the case is pending; FORMAL: FORMAL: (1) In writing; (2) Signed in the presence of the authorities EMPLOYER and EMPLOYEE EMPLOYER: EMPLOYER : One who employ the services of others; any person acting in the interest of the employer EMPLOYEE: EMPLOYEE : Any person in the employ of the others/employer MANAGERIAL EMPLOYEE: EMPLOYEE : One who is vested with powers and prerogatives to lay down and execute management policies and/or to hire, transfer, discipline, suspend, or discharge employees.
SECURITY OF TENURE (ART. 294): 294): (1) Reinstatement without loss of seniority (2) Full backwages, inclusive of allowances and other benefits (3) Recovery of moral and exemplary damages and attorney’s fees REINSTATEMENT: The restoration of the employee to the state from which he has been unjustly removed or separated, without loss of seniority rights and privileges. DOCTRINE ON REINSTATEMENT PENDING APPEAL ( Garcia v. PAL; Pfizer v. Velasco; WenPhil v. Abing): In cases the Labor Arbiter orders a reinstatement, it is obligatory on the part of the employer to reinstate the employee and pay his wages, during the period of appeal, until the decision of the LA is reversed by a higher court or tribunal. Reinstatement ordered by the LA is self-executory and immediately executory, as it needs no writ of execution to implement the order of reinstatement. The employee is not required to reimburse whatever salary he received, received, for he is entitled to such. (Art. 229) BACKWAGES: BACKWAGES : Relief given to an employee to compensate him for lost earnings, during the period of his dismissal. It presupposes illegal termination. Latest jurisprudence posits that FULL BACKWAGES must be given, regardless if, during the pendency of the case, the employee acquired compensation from other employment. TYPES OF EMPLOYMENT (Art. 295 for Regular, Casual, Project, Fixed-Term, and Seasonal; Art. 296 for Probationary): (1) REGULAR: REGULAR : Employment arrangement where the employee (a) has been engaged to perform activities, which are usually necessary and desirable in the usual business or trade of the employer or or (b) has rendered at least one year of service, service, whether such service is continuous or broken, with respect to the activity in which he is employed (casual-turned-regular). employed (casual-turned-regular).
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(2) CASUAL: Employment arrangement where the employee has been engaged to perform activities, which are not necessary or desirable in the usual business or trade of the employer. (3) PROJECT: Employment arrangement where the employment has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of engagement of the employee. (4) FIXED-TERM: Employment arrangement where the employment has been fixed for a specific period which are usually necessary and desirable in the usual business or trade of the employer (5) SEASONAL: Employment arrangement where the employee has been engaged to work during a particular season. (6) PROBATIONARY: Employment arrangement where the employee, upon his engagement, is made to undergo a trial period, during which the employer determines his fitness to qualify for regular employment, based on reasonable standards made known to him at the time of his engagement. TEST TO DETERMINE TYPE OF EMPLOYMENT (Universal Robina Sugar Milling Corp. v Acibo) : The nature of the employment does not depend solely on the will or word of the employer or on the procedure for hiring and the manner of designating the employee. Rather, the nature of the employment depends on the nature of the activities to be performed by the employee, considering the nature of the employer’s business, the duration and scope of the work done, and, in some cases, even the length of time of the performance and its continued existence. NATIONAL LABOR RELATIONS COMMISSION and its LABOR ARBITERS COMPOSITION: Tripartism; 1 Chairman, 23 Commissioners (7 from Public Sector, 8 from Workers Organizations, 8 from ER Organizations) POWERS OF NLRC: (ICORIC) (1) To Investigate and Decide Cases (Art. 225) (2) To Issue Compulsary Processes (Art. 225) (3) To Conduct Ocular Inspections (Art. 226) (4) To Promulgate Rules and Regulations (Art. 225) (5) To Issue Injunctions (Art. 225) (6) To hold any person in Contempt (Art. 225) JURISDICTION OF NLRC: Exclusive and Original (VIC 2) (1) Certified Cases for compulsory arbitration on strikes and lockouts in an industry indespensible to the national interest by the DOLE Sec. (Art. 278) or by the President (Art. 279) (2) Injunction cases (Art. 225) on situations when the prohibited or unlawful act IN ANY LABOR DISPUTE if not restrained or
performed, may cause grave or irreparable damage to any party or may render ineffectual any decision in favour of such party (3) Contempt Cases (Art. 225) (4) Verified Petition (Rule XII, NLRC Rules) by a party aggrieved by any order or resolution of the Labor Arbiter, including those issued during execution proceedings to annul or modify such order or resolution, IF THERE IS NO APPEAL OR ANY OTHER PLAIN, SPEEDY, AND ADEQUATE REMEDY in the ordinary course of law. Exclusive Appellate (LRC) (1) Cases decided by LA (ART. 224) (2) Cases decided by Regional Offices of DOLE (RD or any duly authorized hearing officer of DOLE) in the exercise of its adjudicatory function, under Art. 129 over monetary claims of workers amounting to NOT MORE THAN P5,000 with no claim for reinstatement (3) Contempt Cases decided by LA Petitions for Certiorari, under Rule 65, against decisions of NLRC should henceforth be initially filed with CA in strict observance of the doctrine of hierarchy of courts. LABOR COURTS v. REGULAR COURTS: If there is a reasonable causal connection between the claim asserted and the ER-EE relationship, then the case is within the jurisdiction of labor courts. In the absence of such, it is the regular courts that have jurisdiction. If the claim arises from contract, such as those entered into by the principal (direct employer) and the independent contractor, regular courts have jurisdiction, in line with the application of the provisions of the New Civil Code. LABOR COURTS v. CIVIL SERVICE COMMISSION: If the case involves GOCC’s, with original charters, jurisdiction is with CSC, applying civil service law. If the GOCC is created under the general law on incorporation (Corporation Code), jurisdiction is with labor courts, applying labor laws. (Juco v NHC) JURISDICTION OF LABOR ARBITER: Exclusive and Original (Art 224) (UTR-DP-5000-VOWC) (1) Unfair labor practice cases (2) Termination disputes (illegal dismissal) (3) Cases that workers may file, involving terms and conditions of employment, if accompanied with reinstatement (4) Claims for actual, moral, exemplary, and other damages, arising from ER-EE relations (5) Cases arising from (Prohibited Activities) violation of Art 264 (old numbering) of the
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Labor Code, including questions involving legality of strikes and lockouts (6) Except claims for Employee Compensation, Social Security, PhilHealth, and maternity benefits, all other claims arising from EREE relations, involving an amount exceeding P5,000, regardless of whether accompanied with reinstatement (7) Cases under Art. 128 on the Visitorial and Enforcement Powers of DOLE Sec., when the employer contests the findings of the labor employment and enforcement officer and raises issues supported by documentary proofs, which were not considered in the course of inspection. (8) Monetary claims and claim for damages of Overseas Contract Workers (RA 8042) (9) Wage distortion disputes in unorganized establishments (RA 6727) (10) Enforcement of compromise agreement, when there is non-compliance by any of the parties, pursuant to Art. 233) (11) Others as may be provided by law Exception to the Exclusive and Original Jurisdiction of Labor Arbiters (1) When Sec. of DOLE or the President exercises jurisdiction over national interest cases and decide them himself (Art. 279) (2) When the NLRC exercises its power of compulsory arbitration over certified cases over national interest (Art. 278) (3) Cases of involving interpretation and implementation of CBA (Art. 224) must be referred to the grievance machinery and voluntary arbitration (4) Cases of interpretation and enforcement of company policies (Art. 224) must be referred to the grievance machinery and voluntary arbitration (5) When parties agree to submit the case to voluntary arbitration panel, pursuant to Art. 274 and 275 DETERMINING JURISDICTION OF DOLE SEC., REGIONAL DIRECTOR, AND LABOR ARBITER, IN RELATION TO ARTICLES 128, 129, AND 224: This was discussed in People’s Broadcasting (BomboRadyo) v. Sec. of DOLE . DOLE’s prerogative to determine the existence of ER-EE relationship is not coextensive with the visitorial and enjoyment power. Such determination is merely preliminary, incidental, and collateral to the DOLE’s primary function of enforci ng labor standards provisions. The existence of an ER-EE relationship is a statutory prerequisite to and a limitation on the power of the Sec. of DOLE Thus, we must determine where the complaint is filed and whether there is an existing ER-EE relationship.
(1) If a complaint is brought before DOLE to give effect to the labor standards provisions of the Labor Code or other labor legislation, and it finds that; THERE IS AN EXISTING ER-EE RELATIONSHIP, THE DOLE EXERCISES JURISDICTION TO THE EXCLUSION OF THE NLRC. THERE IS NO EXISTING ER-EE RELATIONSHIP, THE JURISDICTION IS PROPERLY WITH NLRC. If a complaint is brought before DOLE, is in the nature of a monetary claim, and it is accompanied by a claim for reinstatement (meaning there is no existing ER-EE relationship), the jurisdiction is properly with NLRC. Otherwise, if there is no claim for reinstatement and the aggregate amount of claim exceeds P5,000, jurisdiction is properly with Regional Director of DOLE, pursuant to Art. 129. (2) If a complaint is brought before NLRC, and THERE IS STILL AN EXISTING ER-EE RELATIONSHIP, THE JURISDICTION IS PROPERLY WITH DOLE. Decisions of Sec. of DOLE are appealable to CA by Rule 65; then to SC by Rule 45. Decisions of RD are appealable to NLRC, which decision is further appealable to CA by Rule 65; then to SC by Rule 45. Decision of LA are appealable to NLRC, which decision is further appealable to CA by Rule 65; then to SC by Rule 45. APPEAL ART. 229: Decisions, awards, and orders of Labor Arbiters, unless appealed to the NLRC by any or both parties, within 10 calendar days, from receipt of such decisions, awards, or orders. The perfection of an appeal within the statutory/reglementary period is not only MANDATORY, but also JURISDICTIONAL and failure to do so renders the questioned decision final and executory. REQUISITES FOR PERFECTION OF APPEAL: (1) It must be filed within reglementary period; 10 days from LA or 5 days from RD (2) Filing of a Verified Memoradum of Appeal containing the grounds, issues raised, arguments propounded, and reliefs sought, with a statement of the date the appellant received the appealed decision, award, or order (3) In three copies (4) Proof of payment of appeal fee and legal research fee (5) In case of monetary award, an appeal by the employer may be perfected only by posting of a Bond. A mere notice of appeal without complying with the requisites aforesited shall not stop the running of the period.
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GROUNDS: (AFQE) (1) If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter (2) If the decision, order, award was secured through fraud or coercion, including graft and corruption (3) If made purely on questions of law (4) If serious errors in the findings of facts are raised, which would cause grave or irreparable damage or injury to the appellant In case of a judgment involving monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company, duly accredited by the Commission, in the amount equivalent to the monetary award in the judgment appealed from. Nonetheless, a motion to reduce appeal bond may be made, pursuant to NLRC Rules and applying further McBurnie v. Ganzon. Thus: (a) The filing of a motion to reduce appeal bond shall be entertained by the NLRC subject to the following conditions: (1) there is meritorious ground; and (2) a bond in a reasonable amount is posted; (b) For purposes of compliance with condition no. (2), a motion shall be accompanied by the posting of a provisional cash or surety bond equivalent to ten percent of the monetary award subject of the appeal, exclusive of damages and attorney's fees; (c) Compliance with the foregoing conditions shall suffice to suspend the running of the 10-day reglementary period to perfect an appeal from the labor arbiter's decision to the NLRC; (d) The NLRC retains its authority and duty to resolve the motion to reduce bond and determine the final amount of bond that shall be posted by the appellant, still in accordance with the standards of meritorious grounds and reasonable amount; and (e) In the event that the NLRC denies the motion to reduce bond, or requires a bond that exceeds the amount of the provisional bond, the appellant shall be given a fresh period of ten 10 days from notice of the NLRC order within which to perfect the appeal by posting the required appeal bond. In all cases, the appellant shall furnish a copy of the memorandum of appeal to the other party, who shall file an answer not later than 10 calendar days from receipt thereof. The Commission shall decide all cases within 20 calendar days from receipt of the answer of the appellee. The decision of the Commission shall be final and executor after 10 calendar days from receipt thereof by the parties.
(3) Maintenance of a file of CBAs; and (4) Maintenance of a file of all settements or final decisions of SC, CA, NLRC, and other agencies on labor disputes. JURISDITION Exclusive and Original Jurisdiction (Art. 232): To act on its own initiative or upon request of either or both parties on all: (1) Intra-union conflicts: refers to any conflict between and among union 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 constitution and by-laws, or disputes arising from chartering or affiliation of union. (2) Inter-union conflicts: refers to any conflict between and among legitimate labor unions involving representation questions for purposes of collective bargaining or to any other conflict or dispute between legitimate labor unions. (3) Other related labor relations dispute: involves any conflict between a labor organization and the employer or any individual, entity, or group, which is NOT a labor organization or worker’s association, which includes (a) cancellation of registration of unions and worker’s associations and (b) a petition for interpleader. BLR has NO JURISDICTION on those cases arising from the implementation or interpretation of CBAs, which shall be the subject of grievance procedure and/or voluntary arbitration INSTITUTION OF ACTION (1) DOLE Regional Office, where the labor organization is registered (Med-Arbiter): If it involves an independent union, a chartered local, or a worker’s association; Appealable to BLR, within 10 days from receipt of decision (2) BLR: If the complaint involves a federation or an industry/national union; Appealable to DOLE Sec., within 10 days from receipt of decision LABOR ORGANIZATIONS LABOR ORGANIZATION: Any union or association of employees, which exist in whole or in part, for the purpose of collective bargaining with employers, concerning the terms and conditions of employment and for other legitimate purposes. LEGITIMATE LABOR ORGANIZATION : Any labor organization duly registered with DOLE. UNION: Any labor organization in the private sector organized for collective bargaining and for other legitimate purposes.
BUREAU OF LABOR RELATIONS ADMINISTRATIVE FUNCTIONS OF BLR (Art. 237): (1) Regulation of registration of the labor unions; (2) Keeping of a registry of labor unions;
INDEPENDENT UNION: Any labor organization operating at the enterprise level whose legal personality is derived through an independent action for registration with the BLR.
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NATIONAL UNION: Any labor organization with at least 10 locals/chapters each of which must be a duly certified or recognized collective bargaining agent. EXCLUSIVE BARGAINING REPRESENTATIVE : Legitimate labor organization duly recognized or certified as the sole and exclusive bargaining representative or agent of all the employees in a bargaining unit. WORKER’S ASSOCIATION: Association of workers organized for
mutual aid and protection of its members or for any other legitimate purpose other than collective bargaining. AFFILIATE: An independently registered union that entered into an agreement of affiliation with a federation or national union. It also refers to a chartered local, which applied for and was granted an independent registration, but did not disaffiliate from its mother federation or national union. REQUIREMENTS FOR THE ISSUANCE OF CERTIFICATE OF REGISTRATION OF UNIONS Independent Union (Art. 240) (1) Registration Fee of P50 (2) Names of officers and their addresses, address of the labor organization, the minutes of organizational meetings, and the list of workers who participated in such meeting (3) In case of independent union, names of members comprising at least 20% of all the employees of the bargaining unit; (4) If the union has been existing for one or more years, its annual financial reports (5) Four copies of its constitution and by-laws, minutes of its adoption or ratification, and the list of members who participated in it Chartered Locals/Chapter Union (Art. 241): From the day it was issued a charter certificate, the chapter shall acquire legal personality only for purposes of filing a petition for certification election. It shall acquire all other rights and privileges of a legitimate labor organization, upon registration. (1) Charter Certificate issued by the mother union (2) Names of officers and their addresses, address of the local chapter (3) Chapter’s constitution and by-laws; Provided, that where the chapter’s constitution and bylaws are the same as that of the federation or national union, this fact shall be indicated accordingly. Federation or National Union (Art. 244): In addition to requirements mentioned: (1) Proof of affiliation of at least 10 locals or chapters, each of which must be dulyrecognized collective bargaining agent (2) The names and addresses of the companies, where locals or chapters operate and the list of all the members in each company involved.
DISAFFILIATION: When an affiliated local union may disaffiliate from the federation. General rule on freedom period applies. However, an exception is if disaffiliation is made by majority of the union members in the bargaining unit. SUBSTITUTIONARY DOCTRINE: The CBA continues to bind the members of the new or disaffiliated and independent union up to the CBA’s expiration date. MERGER (ABSORPTION): Process where the labor organization absorbs another, resulting in the cessation of the absorbed labor organization’s existence and the continued existence of the absorbing labor organization. CONSOLIDATION (AMALGAMATION): The creation or formation of a new union, arising from unification of two or more union. CANCELLATION OF REGISTRATION (Art. 245): 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 Art. 247. GROUNDS: (M2V2) (1) 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 (2) Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election of officers, and the list of voters (3) Voluntary dissolution by the members (4) Violation of rights and conditions of membership (art. 250) VOLUNTARY CANCELLATION (Art. 248): By the organization, provided that at least 2/3 of its general membership votes in a meeting duly called for that purpose. GENERAL GROUINGS OF RIGHTS AND CONDITIONS OF MEMBERSHIP IN LABOR ORGANIZATION (Art. 250): (1) Deliberative and decision-making rights (2) Right to information (3) Rights over money matters (4) Political rights Last paragraph of Art. 250: Any violation of the above rights and conditions of membership shall be ground for cancellation of union registration or expulsion of officers from office, whichever is appropriate. At least 30% of the members of a union OR any member or members specially concerned may report such violation to the Bureau. RIGHTS OF LEGITIMATE LABOR ORGANIZATIONS (Art. 251): (USER-FOE) (1) Undertake activities for the benefit of the organization and its members (2) Sue and be sued
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(3) Exclusive representative of all employees in the bargaining unit (certification elections) (4) Represent union members in collective bargaining (5) Furnished by employers of audited financial statement (6) Own properties (7) Exemption from taxes REPORTORIAL REQUIREMENTS (Art 252): The legitimate labor organization must submit the following: (COMA) (1) Constitution and by-laws, or amendments thereto, minutes of ratifications, and the list of members who took part in the ratification, within 30 days from adoption of such; (2) List of Officers, minutes of election of officers, and list of voters, within 30 days from election (3) List of Members, at least once a year or whenever required by Bureau (4) Annual Financial Reports, within 30 days after the close of fiscal year Failure to comply with the above-mentioned shall not be a ground for cancellation of union registration, but shall subject the erring officers or members to suspension, expulsion, or any other appropriate penalty. COVERAGE OF RIGHT TO SELF-ORGANIZATION ART. 257: Non-abridgement of Right to Self-Organize (1) To form, join, and assist labor organizations for the purpose of collective bargaining, through representatives of their own choosing (2) To engage in lawful concerted activities for the same purpose and for their mutual aid and protection ART. 253: Eligibility to join labor organizations (see Memaid 2016, p. 112) RIGHTS OF EMPLOYEES IN PUBLIC SECTOR (GOCCs with Original Charter) (Art. 254): They cannot bargain with the government concerning the conditions of their employment. However, they can negotiate (through collective negotiation agreements or MOA) with the government on those terms and conditions of employment which are not fixed by law. They are enjoined by Civil Service Memorandum Circular No. 6 from staging strikes, demonstrations, mass leaves, walkouts, and other concerted activities. They can only form, join, or assist labor organizations for purposes not contrary to law. Managerial employees are ineligible to join any labor organization, while such is not the case for supervisory employees (Art. 255). UNFAIR LABOR PRACTICES Generally, ULP are prohibited acts related to the worker’s right to self-organization and to the observance of the CBA. It is a practice unfair to labor, although the offender may either be an employer or a labor organization.
Note: Prohibited acts are all related to the workers’ self organizational right and observance of CBA, except Art. 259(f), dismissing or prejudicing an employee for giving testimony under the Code No criminal prosecution under this Title may be instituted without a final judgment finding that an unfair labor practice was committed, having been first obtained in the preceding paragraph. During the pendency of such administrative proceeding, the running of the period of prescription of the criminal offense herein penalized shall be considered interrupted: Provided, however, that the final judgment in the administrative proceedings shall not be binding in the criminal case nor be considered as evidence of guilt but merely as proof of compliance of the requirements therein set forth. ELEMENTS: (1) Existence of ER-EE relationship (2) Act don is expressly defined in the code as an act of ULP Anti-union or anti-right to self-organization motive must be proved because it is a definitional element of ULP. The burden of proof falls on the shoulders of petitioner to establish or substantiate a claim of ULP. ULP BY EMPLOYERS (Art. 259): (IY-C2D2-VPV) (1) Interference: to interfere with, restrain, or coerce employees in the exercise of their right to selforganization Totality of Conduct Doctrine: The culpability of employer’s remarks is to be evaluated not only on the basis of their implications, but against the background of and in conjunction with collateral circumstances. (2) Yellow Dog Condition: to require as a condition of employment that a person or employee shall not join a labor organization or shall withdraw from one to which he belongs (3) Contracting Out: 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 right to self-organization (4) Company-Domination of Union: 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 and officers (5) Discrimination: 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
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(6) Discrimination Because of Testimony: to dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code (7) Violation of Duty to Bargain: to violate the duty to bargain collectively as prescribed by this Code Run-away Shop: An unfair labor practice of management, which usually takes place by effecting the transfer of ownership, the plant itself, or its equipment, or by temporary closing its business purposely to bust the union or to evade the payment of legitimate obligations. Surface Bargaining: It means going through the motions of negotiating, without any legal intent to reach an agreement (8) Paid Negotiation: to pay negotiation or attorney’s fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute (9) Violation of CBA: to violate a collective bargaining agreement. It must be gross, flagrant and/or malicious refusal to comply with the economic provision of the CBA SECURTY ARRANGEMENTS: Stipulations in the CBA requiring membership in the contracting union as a condition for employment or retention of employment in the company. Art. 259 (e): 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. Art. 260 (a): However, a labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of membership. KINDS: (1) Closed-Shop Agreement: only union members can be hired by the company and they must remain as union members to retain employment (2) Semi-Closed Shop Agreement: prospective employee must be a member of the union as a condition of employment and has no requirement for the employee to remain as member of the contracting union in good standing as a condition for continued employment (3) Union Shop Agreement: Non-members may be hired, but to retain employment, must become union members
(4) Maintenance of Membership Agreement: No employee is compelled to join the union. But, all the present or future members must, as a condition of employment, remain in good standing (5) Preferential Shop Agreement: The employer merely agrees to give preference to the members of the bargaining union in hiring, promotion, or filing vacancies and retention in case of lay-off. (6) Agency Shop Agreement: an agreement whereby employees must either join the union or pay to the union as exclusive baragaining agent a sum equal to that paid by members. (7) Modified Union Shop Agreement: provides that the employees who are not union members at the time of signing the contract (CBA) need not join the union, but all the workers hired thereafter must join. (8) Exclusive Bargaining Shop Agreement: provides that the union is recognized as the exclusive bargaining agent for all employees in the bargaining unit, whether union members or not. (9) Bargaining for Members Only Agreement: provides that the union is recognized as the bargaining agent only for its own members REQUIREMENTS FOR A VALID TERMINATION OF THE EMPLOYEE UNDER CLOSED-SHOP AGREEMENT: (DR. PEC) (1) It can only be exercised by giving the employee his right to due process. (2) It cannot be applied to employees who are already members of the rival union or to the employees based on their religious beliefs. (3) The agreement can only be applied prospectively. (4) The agreement must be expressed in clear and unequivocal terms. (5) Any doubt must be resolved against existence of closedshop agreement. Note: On the part of the employer, it needs only to determine and prove that: (1) The security clause is applicable. (2) The union is requesting for the enforcement of the union security provisions of the CBA. (3) There is sufficient evidence to support the union’s decision to expel the employee from the union. (4) Employer must comply with due process. ULP BY LABOR ORGANIZATIONS (Art. 260): (GRADE-V) (1) To grossly violate a collective bargaining agreement. (2) To restrain or coerce employees in the exercise of their right to self-organization.
LABOR RELA TI ONS M I DTERM EXAM REVI EWER (Atty. Usita) / Mabanglo, Vicson A.
(3) 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 Sweetheart Doctrine: provides that it is ULP for a labor organization to ask for or accept negotiation or attorney’s fees from the employer in settling a bargaining issue or dispute. (4) 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. (5) 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. “ Featherbedding” (6) To violate the duty, or refuse to bargain collectively with the employer, provided it is the representative of the employees. Blue Sky Bargaining: making exaggerated or unreasonable proposals. Whether or not union is engaged in such is determined by the evidence presented by the union as to its economic demands. ULP in Bargaining (by Labor Organization or by Employer): (BE-GF) (1) Bad faith in bargaining (Boulwarism) (2) Evading the mandatory subjects of bargaining (3) Gross violation of CBA (4) Failure or refusal to meet and convene COLLECTIVE BARGAINING DUTY TO BARGAIN COLLECTIVELY: In the absence of CBA (Art. 262): In the absence of an agreement or other voluntary arrangement providing for a more expeditious manner of collective bargaining, it shall be the duty of employer and the representatives of the employees to bargain collectively in accordance with the provisions of this Code. (Art. 263): The duty to bargain collectively means the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreements if requested by either party but such duty does not
compel any party to agree to a proposal or to make any concession. In the presence of CBA (Art. 264): 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: (1) to keep the status quo and (2) to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties. REQUISITES OF COLLECTIVE BARGAINING: (MEDS) (1) Possession of status of representation (2) Proof of majority representation (Certification of BLR) (3) ER-EE Relationship (4) Demand to bargain collectively (Kiok Loy v NLRC) PROCEDURE IN COLLECTIVE BARGAINING (Art. 261): The following procedures shall be observed in collective bargaining: (a) When a party desires to negotiate an agreement, it shall serve a written notice upon the other party with a statement of its proposals. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice; (b) Should differences arise on the basis of such notice and reply, either party may request for a conference which shall begin not later than ten (10) calendar days from the date of request. (c) If the dispute is not settled, the Board shall intervene upon request of either or both parties or at its own initiative and immediately call the parties to conciliation meetings. The Board shall have the power to issue subpoenas requiring the attendance of the parties to such meetings. It shall be the duty of the parties to participate fully and promptly in the conciliation meetings the Board may call; (d) During the conciliation proceedings in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes; and (e) The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to a voluntary arbitrator. CERTIFICATION YEAR: The collective bargaining should begin within the 12 months, following the determination and certification of thee mployee’s exclusive bargaining representative. This period is known as the “certification year”. COLLECTIVE BARGAINING AGREEMENT: A contract executed upon request of either the employer or the exclusive bargaining representative of the employees, incorporating in the agreement reached, after negotiations with respect to wages, hours of work, and other terms and conditions of employment in a bargaining unit, including proposals for adjusting any grievances or questions under such agreement.
LABOR RELA TI ONS M I DTERM EXAM REVI EWER (Atty. Usita) / Mabanglo, Vicson A.
PROCEDURE FOR REGISTRATION ( Art.237): (1) Submission of copies of the CBA to the BLR or the Regional Office of DOLE within 30 days from execution, accompanied by (a) verified proof of posting in two conspicuous places in the place of work and (b) verified proof of ratification by the majority of all the workers in the bargaining unit; (2) Action upon the application for registration within 5 calendar days from receipt thereof; the regional office shall furnish BLR with a cop of CBA within 5 days from submission; (3) BLR or RO shall assess the employer for every CBA, a registration fee of not less than P1,000 (4) Issuance of Certificate of Registration Usual Provisions in CBA: (BES2-FM-A-VC2D2) (1) Definition of Bargaining Unit (2) Economic Benefits (3) Union Security Clause (4) No Strike-No Lockout Clause (5) Provisions on Family Planning, Participation, or Sports (6) Management Prerogative Clause (7) Provisions on Administration of Agreement (8) Voluntary Arbitration Clause (9) Check-off Provisions (10) Completeness of Agreement (11) Provisions Against Drug Use in Workplace (12) Duration of Agreement ZIPPER CLAUSE: a stipulation in the CBA indicating that issues that could have been negotiated upon, but not contained in the CBA cannot be raised to negotiation, when the CBA is already in effect. WILEY DOCTRINE: states that a duty to arbitrate arising from a collective bargaining agreement survives the employer’s ceasing to do business as a separate entity, after its merger with a substantially large corporation, where relevant similarity and continuity of operations across the change in ownership is evidenced by the wholesale transfer of smaller corporation’s employees to the larger corporation. DEADLOCK: Synonymous with impasse or a standstill which presupposes reasonable effort in good faith bargaining, but despite noble intentions does not conclude an agreement between parties. (See MemAid 2016 for Bargaining to the Point of Deadlock and Remedies, p. 128) AUTOMATIC RENEWAL CLAUSE : The CBA shall remain effective and enforced even after the expiration of the period fixed by the parties, as long as no new agreement is reached by them. The automatic renewal pertains only to the economic provisions of CBA and does not include representational aspect of CBA. FREEDOM PERIOD: The 60-day period immediately preceeding the expiration of the representation period of 5 years in the CBA.
What may be done during the Freedom Period: (DAC) (1) A labor union may Disaffiliate (2) Either party can serve a written notice or Terminate or modify the agreement (3) A petition for Certification Election may be filed ABSORPTION DOCTRINE/ACCRETION DOCTRINE: When one company is sold to another, the duty to bargain, which originally devolves upon the selling party, is transferred to the buying party. SUCCESSOR-IN-INTEREST DOCTRINE: When an employer with an existing CBA is succeeded by another employer, the successor-in-interest, who is a buyer in good faith, has no liability to the employees in continuing employment and the CBA, bcause these contracts are in personam. Except: (1) When successor-in-interest expressly assumes (2) When made to circumvent the laws (3) When made in bad faith SUBSTITUTIONARY DOCTRINE: (See Disaffiliation) Where there occurs a shift in the employees’ union allegiance after the execution of the CBA contract with the employer, the employees can change their agent (the labor union), but the CBA, which is still subsisting, continues to bind the employees up to its expiration date. LOCK, STOCK, AND BARREL RULE : Under the rule, the CBA proposed by the union may be imposed lock, stock, and barrel on employer, who refused to negotiate a CBA. The employer, which violates the duty to bargain collectively, loses its statutory right to negotiate or renegotiate the terms and conditions of the draft CBA proposed by the union. Hence, the proposals of the union may be adopted as the CBA and imposed upon the employer. (Kiok Loy v NLRC) CONTRACT-BAR RULE (Art. 238 in relation to Art. 265): While a valid and registered CBA is subsisting for a fixed period of 5 years, the Bureau is not allowed to hold an election contesting the majority status of the incumbent union, except during the 60 dayperiod immediately prior to its expiration, which period is called the freedom period. As regards Economic Provisions, it shall be renegotiated not later than 3 years. ONE-UNION, ONE-COMPANY POLICY: provides that the proliferation of unions in an employer unit is discouraged as a matter of policy, unless there are compelling reasons which will deny a certain class of employees the right to self-organization for purposes of collective bargaining. BARGAINING UNIT: a group of employees of a given employer, comprised of all or less than all the entire body of the employees, which share reciprocal rights and duties, under the collective bargaining provisions of the law.
LABOR RELA TI ONS M I DTERM EXAM REVI EWER (Atty. Usita) / Mabanglo, Vicson A.
FOUR FACTORS IN DETERMINING THE APPROPRIATE BARGAINING UNIT: (CHEG) (1) Community of Interest Doctrine or Substantial Mutual Interest Rule: characterized by the similarity of employment status, same duties, and responsibilities and substantially similar compensation and working conditions. (2) Prior collective bargaining history (3) Employment status (4) Globe Doctrine: based on the express will or desire of the workers. In defining the appropriate bargaining unit, the determining factor is the desire of the workers themselves. EXCLUSIVE BARGAINING REPRESENTATIVE: Legitimate labor organization duly recognized or certified as the sole and exclusive bargaining representative or agent of all the employees in a bargaining unit. MEANS TO DETERMINE EXCLUSIVE BARGAINING REPRESENTATIVE: (1) By Petition for Certification Election of Legitimate Labor Organization a. Organized Establishment b. Unorganized Establishment (2) By Petition for Certification Election of Employer, when requested to bargain collectively in a bargaining unit where no registered collective bargaining agreement exists (3) By Voluntary Recognition (See MemAid 2016 for discussion on procedure, pp.132-136)
LABOR RELA TI ONS M I DTERM EXAM REVI EWER (Atty. Usita) / Mabanglo, Vicson A.
