Labrel Reviewer Poquiz

LABOR RELATIONS • It denotes all aspects of ER-EE relationship w/c involve concerted action on the part of the workers. • It is usually associated w/: 1. unio unioni nism sm;; 2. collec collectiv tive e bargaini bargaining; ng; 3. negoti negotiati ations ons;; and 4. concer concerted ted act activi ivitie ties s (strike, picket, mass leave) • The purpose of LabRel is to align the differences b/w ER-EE so that there will be peace, tranquility and order. PARTIES: • In the event of labor dispute, there are 4 parties involved: (a) Immediate/ Active parties (ER & EE) (b) Passive/ Inactive parties (Gov’t (Gov’t & Public) Q: Is there an instance where a passive party becomes an active party? A: YES. In case a LD in an industry indispensable to national interest. In the case of a vital industry dispute, where the President/ Sec. of Labor can assume jurisdiction. ex. There is a LD in PAL, it is a vital industry. The ER & EE are the active parties. Q: The gov’t and the public are passive parties, BUT may the gov’t be an active party in this case? A: YES. For purposes For purposes of resolving the VID. • The Pres or the Sec. of Labor (gov’t) can assume such jurisdiction over LD in PAL in order to protect national interest. Q: What happens if the gov’t does not intervene? A: In terms of economy, there will be no income income on the part of the ER. ER . There will be no wages, salaries salaries on the part of the EE. In terms of economy of the nation, affected. In terms of the production of the workers, if there is a strike, then there will be no work. This is why the gov’t can intervene. Q: Under what procedure what procedure can the gov’t intervene? A: By assuming jurisdiction over LD in an industry indispensable to national interest. BODIES TO IMPLEMENT LABREL: 1. Offic Office e of the Presid President ent 2. DOLE 3. Region Regional al offic offices es of of the the DOLE DOLE 4. NLRC 5. Regional Regional Arbitratio Arbitration n Branches Branches of the the NLRC 6. Bure Bureau au of LabR LabRel el 7. National National Conci Conciliati liation on and and Mediati Mediation on Board Board NATIONAL LABOR COMMISSION • Nature of composition of the NLRC: - It is a tripartite body, trisectoral composition - Its compositions comes from the: 1. gove govern rnme ment nt sec secto torr 2. mana manage geme ment nt 3. labo laborr sec secto torr • The NLRC sits en banc only of instances of policy determination and promulgation of the IRR. Compiled by A.A. Dizon ’15-’16 Updates by CRUZ.DE DIOS.RUIZ

Q: How may the NLRC exercise its quasi-judicial powers? A: It is exercised thru the different divisions. There are 8 divisions. In each division, there are 3 commissioners. commissioners. The chairman comes from the gov’t. The others, from both the management and labor sectors. NLRC

LABOR ARBITER

IBP member

IBP member

15 year years s in in pra pract ctic ice e of of law law

10 year years s in in pra pract ctic ice e of of law law

5 years experience in Labor management

5 years experience in Labor management

Assigned in the region region where he comes from

• The functions of NLRC are appointing, investigative and administrative. - BUT the ff. are the quasi-judicial powers: 1. Cont Contem empt pt powe powers rs 2. Inju Injunc ncti tive ve pow power er 3. Power to resolv resolve e certifi certified ed cases cases under Art. 263-G (assumption power) 4. Appe Appell llat ate e powe powerr QUASI-JUDICIAL POWERS OF NLRC: (1) CONTEMPT POWER OF NLRC • It is to preserve the dignity of the commission. Direct contempt, pursuant to the NLRC 2011 Rules and Procedure of Labor Code. Indirect contempt, pursuant to Rule 71 of the Rules of Procedure. (2) INJUNCTIVE (2) INJUNCTIVE POWER injunction . • The NLRC can issue of TRO or a writ of injunction. These must be issued upon the observance of due process. The TRO may be issued even without a hearing. However, in issuing a writ of injunction there must be a hearing to be conducted. • The NLRC may issue a TRO ex parte or without the presence of the other party because it is a mere interlocutory order prior issuance of the writ of injunction. BUT in the case of writ of injunction, a hearing must be conducted. (3) POWER TO RESOLVE CERTIFIED CASES UNDER ART. 263-G OF THE LC ART. LC (ASSUMPTION POWER) Q: How may the Pres of Sec. of Labor assume jurisdiction over a VID? A: The ER or the union may petition or do a joint petition or motu proprio. • Under Art. 263-G, the nature of this assumption power is (PFCD) plenary, full, complete & discretionary. Q: Can the EE & the union compel the Sec. of Labor to assume jurisdiction? A: NO, it is discretionary. The Sec. of Labor has a wide latitude of discretion. LEGAL EFFECTS OF AN ASSUMPTION ORDER: 1. It has has the the eff effec ectt of writ of injunction. 2. A return return to work work order order is deemed deemed written written in the AO. Page 1 of 18

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Notes and comments by Dean Salvador A. Poquiz

LABOR RELA RELATIONS TIONS REVIEWER REVIEWER

- There are cases where the Sec. of Labor had a separate return to work order. 3. Striking workers should return to work, otherwise, they are deemed to have lost their employment status or they can be dismissed upon compliance with due process. 4. The AO contemplates only actual reinstatement. - The returning striking workers should be reinstated actually by the ER thru their former positions under the same terms and conditions of the ER. - Under the law on dismissal, the ER is given the option to reinstate either actually or via payroll. But on the law of assumption of jurisdiction, payroll is not allowed. XPN: Under special circumstances, they should be reinstated via payroll if there will be an awkward situation or legal/ physical impossibility. 5. Sec. of Labor has concurrent jurisdiction over cases that are cognizable by LA. • Under Art. 224, the LA exercises exclusive jurisdiction over termination disputes, ULP etc. XPN: Under assumption order & pending litigation, the Sec. of Labor can take over pending cases.

2. Discrimination

- if the unequal treatment is designed or calculated to get rid or discourage unionism, it is ULP. (a) laid off (b) retrenchment (c) transfer of EEs 3. Company unionism

- the union is organized at the instance of the co. or ER. (a) organized by the co. Q: How may an employer organize a company union? A: Thru the ff: 1. economic support - turning the assoc. to a LU, organized in the instance of the ER; 2. legal support - the ER gives the best lawyer to be able to build a union; and 3. psychological support - promises of a better future, trust fund etc. (b) not organized by the co.

UNFAIR LABOR PRACTICE (ULP) • It is an act by ER w/c violates the constitutional right of worker to self organization, w/c includes: 1. right to form a union 2. right to take part in its formation 3. right to join or assist a union in CBA 4. right to negotiations 5. right to engage in concerted activities for mutual help and protection Q: Are there instances when ULP is committed in the absence of ER-EE relationship? A: YES. In the ff. instances: (a) Doctrine of innocent bystander - ULP can be committed against a non-ER. (b) Yellow Dog Contract - an agreement where an applicant to the job should not be a member of a union or he is required not to join any labor union. He renounces his constitutional right to self organization. • The nature of ULP is not just administrative offense but is also a criminal offense. It is the courts which has jurisdiction over the criminal However, there must be a final decision administrative or civil aspect before he can criminal aspect.

or civil regular aspect. on the file the

TYPES OF ULP: a) ULP COMMITTED BY THE ER • In ULP, the purpose of any act of the ER is to discourage unionism. To get rid of the union. Types of ULP committed by the ER: 1. Interference, restraint, coercion - This can be committed through the ff: (a) economic means - sweetheart contract, where there will be collusion b/w the union & the ER; (b) physical means - the ER kidnaps the Pres. of the union to scare him if they will push through w/ the CBA; and (c) psychological means - sending death threats; sending an empty coffin Compiled by A.A. Dizon ’15-’16 Updates by CRUZ.DE DIOS.RUIZ

- A militant union but bec. the ER captivated the heart and emotions of the union, the union became a company dominated union. 4. Refusal to bargain collectively

- the duty to bargain collectively means the mutual obligation of the ER to confer promptly and expeditiously on reasonable terms and conditions of employment and in good faith, providing the machineries of settlement therein Q: When may mutual bargaining start? A: The union submits a proposal and as a mutual obligation on the part of the ER, the ER is mandated to submit a counter CBA proposal w/in 10 days of receipt. When the ER received the counter CBA and the ER does not submit a counter CBA, the CBA proposal submitted by the union will become the governing CBA in the company premises. (a) Good faith bargaining (Boulwareism) - this is our proposal, “take it or leave it”. It was introduced by Lemuel Boulware (VP of General Electric) (b) Surface bargaining - the ER procastinates & delays the proceedings, the ER has no intention of signing an agreement (c) Runaway shop - they transfer their business to another location to avoid CBA Q: When they discovered it, they held a strike at the place where the ER transferred. Is the strike legal? A: YES. • The concept of the duty to collective bargaining is it includes reasonable terms & conditions of employment. 5. Providing negotiation fess & services

- This will result to incomplete, inadequate CBA. 6. Contracting out of service

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LABOR RELATIONS REVIEWER

- If the contracting exceeds 6 months, that will amount to ULP. The purpose is to get rid of the union w/c is a ULP. 7. Giving out testimony 8. Gross flagrant violation of the CBA

- This refers to economic provisions. • • • • •

Increase of wages Other addtl & labor standards benefits Leave credits Increase of benefits Escalator clause - in the event of sudden increase in the prime commodities of consumer price index brought about by soaring prices, this provides that there will be a gradual increase in wages if there is increase in commodities.

b) ULP COMMITTED BY THE UNION Types of ULP committed by the union: 1. Blue sky bargaining - the CBA proposal contains economic demands that are unreasonable, exaggerated bargaining proposals; the economic demands are sky high or beyond the economic reach of the employer. 2. Feather bedding activity

- it means prolonging the work for the union to earn; compelling the ER to pay services rendered or not rendered, performed or not performed; this is a form of extortion committed by the union to the ER. ex. the employer only needs 50 people but the union compels the ER to pay for 75 people. 3. Restraint, coercion, discrimination on the part of the union 4. Strike coercion on the part of the union 5. Accepting negotiation fees from the union 6. Violation of the CBA of the union TERMINATION DISPUTES • It has something to do on law on dismissal; postemployment LAW ON DISMISSAL • According to Article 3, Section 1. “No person shall be deprived of his life, liberty and property without due process of law.” • Due process class and right to security of tenure. • Labor is a property . One’s labor is property within the mantle of the Constitution. A worker may not have any property except his labor. DUE PROCESS “Audie alteram partem” - No one shall be condemned and unheard Q: What is the quantum of proof in labor proceedings? A: GR: Substansial evidence, w/c a reasonable mind may find adequate to justify conclusions. XPN: To prove the validity of dismissal rest upon the ER to prove it under clear, positive, convincing and accurate evidence.

Compiled by A.A. Dizon ’15-’16 Updates by CRUZ.DE DIOS.RUIZ

2 ASPECTS OF DUE PROCESS: a) Substantive - this refers to the legality or illegality of the act of dismissal; no EE shall be dismissed except in causes provided by law b) Procedural - this refers to the legality or illegality of the manner of dismissal 1. 2-Notice Rule 1st Notice - it must be formal specific discharge; “violation of Company Rules and Regulations” — it is NOT considered as specific discharge. - you reply w/ an intelligible answer if the discharge is NOT specific. 2nd Notice - this is the notice of dismissal ; - inform the EE of the decision to dismiss him; - give the EE the chance to contest validity by filing proper complaint 2. Opportunity to be heard unless the party requests for a hearing (Perez doctrine) DOCTRINE OF COMMENSURATE PENALTY/ PROPORTIONAL RULE: - penalty imposed proportionate to offense committed 1. Length of service 2. Gravity of offense 3. Nature of the position/ employment 4. Nature of the business 5. First offense rule 6. Totality of infractions (Collective infractions rule) 7. Principle of charity, compassion and understanding 8. Principle of equity 2 TYPES OF DISMISSAL: (JUST CAUSE & AUTHORIZED CAUSE DISMISSAL) 1. JUST CAUSE DISMISSAL - this is initiated by the EE; - in the Toyota doctrine, all has no payment of separation pay; - for non-compliance by the ER of the due process of just cause dismissal, he is liable to pay indemnity or nominal damages amounting to P30,000.00 Types of Just Causes: a) Serious misconduct - wrongful or improper conduct that is committed in an aggravated or serious manner. - to be a just cause dismissal, it should be serious; if it were a minor misconduct, then it is not a just cause for dismissal (too harsh a penalty). examples: • Sexual harassment - the Anti-Sexual Harassment Law is designed to protect employees from over sexed superiors 2 Types of Sexual Harassment 1. Quid pro quo - “I give that you may give”; something for something - economic in nature committed by superior officer who has moral dominance, ascendancy over the victim - procurement of sexual favors Page 3 of 18

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2. Hostile environment - unwelcome sexual remarks, advances, utterances, flirtations - physical conduct of a sexual nature where an employee is placed in an intimidating, hostile and offensive environment.

- because of the EE’s gross negligence, it caused the ER a tremendous damage ex. Manager assigned in a very delicate position but he failed to perform his functions. Several company properties were spirited out unknowingly by such manager. This will justify dismissal. - there were some cases where in although not habitual, but if it is gross, then that will justify dismissal

• Fighting in company premises

- No work, no pay (they stop working when there is fight). There must be body contact in order to be serious. • Gambling

- Serious misconduct because of its pernicious effects. • Sexual intercourse in company premises

- this is inflamed either by lust or affection, these are immoral acts that affects moral decency. Immoral acts are any act not accepted by community (ex. married man w/ another family). The basis of determining immorality is the public and secular basis. • Theft

- it is an act of dishonesty, you also have to consider the amount of the property taken because you need to consider also if the penalty is proportional to the offense committed. If it is negligible, dismissal is too harsh a penalty. • Drug-use in company premises

- the refusal to take the test (confirmatory test & screening test) is considered a serious misconduct and may be dismissed. The ER must inform the EE of the test results, without this it is considered illegal dismissal. b) Willfull disobedience

- there is deliberate refusal to obey lawful orders of the ER; repeated commission of same irregularity. However, insubordination is an isolated act and not justified by dismissal. - It does not mean that if there is a violation of the lawful order, that automatically dismisses an employee. We must determine first other circumstances before imposing the supreme economic death penalty which is dismissal. c) Willfull breach of trust and confidence

- it has something to do with protection of company money and propery 2 Types of positions: 1. Fiduciary/ Rank and file employees - requires a tedious, rigorous procedure in the dismissal 2. Managerial employees - mere finding of the basis of loss of trust and confidence will justify dismissal; it is the extension of the personality of the management/ alter-ego of the ER d) Commission of a criminal offense

- any commission of a criminal act against the person of the ER or his immediate family member will justify dismissal

e) Other analogous causes 1. violation of company rules 2. unauthorized absences 3. serious insult/ unbearable treatment of ER 4. abandonment - over acts/ willful intention to ever ER-EE relationship; there must be willful, deliberate refusal not to return. The ER must notify the employee, still need to observe the 2-notice rule but w/o hearing 2. AUTHORIZED CAUSE DISMISSAL

- this is initiated by the ER; - mandates payment of the separation pay; - for non-compliance by the ER, he is liable to pay the amount of P50,000 Types of Authorized Causes: a) I n t r o d u c t i o n o f L a b o r S a v i n g D e v i c e Automation - replacement of workers by machines resulting to technological employment Requirements: 1.

2 separate notice rule - notice to the DOLE and 30 days notice to the EE to be discharged; 2. Fair and reasonable criteria - less preferred status, seniority based on first in last out rule, length of service; this is not provided by law but perhaps in the employment contract or CBA 3. It must be done in good faith 4. There must be payment of separation pay - If it is done just to get rid of the union, this will amount to constructive dismissal and ULP.

b) Retrenchment

- ER is on the verge of economic collapse; the ER is losing

- the ER can embark on retrenchment to prevent losses - the purpose of retrenchment is to prevent the eventual economic catastrophe that will lead to the downfall of the ER; so the ER can reduce company personnel to prevent losses - partial closure is also considered as retrenchment Requirements: 1. 2.

3. 4. 5.

2 separate notice rule - notice to the DOLE and 30 days notice to the EE to be discharged; Fair and reasonable criteria - less preferred status, seniority based on first in last out rule, length of service; this is not provided by law but perhaps in the employment contract or CBA It must be done in good faith Proof of financial pay There must be payment of separation pay - half month pay for every year of service (company is losing)

Q: What kind of losses are contemplated under the LC? A: Actual and anticipated/ impending losses

e) Gross and habitual neglect of duties


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• There is no prohibition for the ER to embark on retrenchment if he could perceive that its economy will go down the drain.

- to be valid, it must be done in writing by the EE and the acceptance must also be in writing.

c) Redundancy

- it is no the duplication in work function; - a position is redundant when it is superfluous. Superfluity is the outcome of some factors: (a) Over-hiring of workers (b) Decline in the volume of business (c) Closure of a particular line of an economic activity previously engaged by the ER - there are excess services that are NOT needed by the ER. These surplus over-hired additional works are NOT needed by the ER, so they must be discharged. Requirements: 1. 2. 3.

2 separate notice rule - notice to the DOLE and 30 days notice to the EE to be discharged; It must be done in good faith There must be payment of separation pay - full month pay for every year of service

d) Disease

- the ER must prove it by way of medical certificate issued by a gov’t hospital/ clinic or doctor;

- the disease cannot be cured in the period of 6 months; if it is curable w/in 6 months, he should be allowed to on LOA Requirements: 1. 2. 3.

2 separate notice rule - notice to the DOLE and 30 days notice to the EE to be discharged; It must be done in good faith There must be payment of separation pay - half month pay for every year of service

e) Closure of business Requirements: 1. 2. 3. 4.

2 separate notice rule - notice to the DOLE and 30 days notice to the EE to be discharged; It must be done in good faith Proof of financial pay No payment of separation pay

f) Analogous causes

CONSTRUCTIVE DISMISSAL - It is a dismissal in disguise; this is quitting of the job since continuing the employment has become impossible, unreasonable, unlikely and unbearable under the circumstances. - Authorized dismissal done in bad faith will amount to constructive dismissal. It is an involuntary resignation or serious insult or unbearable treatment to EE that will force him to resign. examples: 1. Demotion in rank 2. Outsourcing beyond 6 months 3. Resignation - voluntary in nature BUT if it is due to being oppressed this will amount to constructive dismissal 4. Preventive suspension - should not be beyond 30 days otherwise it will be constructive dismissal Resignation

- It is a voluntary act of the EE where personal reasons cannot be sacrificed in favor of the expediency of the service;


Q: Can you withdraw resignation prior acceptance? A: Yes. Q: After acceptance? A: No more because there is already termination of ER-EE relationship. • If the EE insists on coming back and the ER accepts, he should be treated as a new EE. Q: May resignation be done verbally? A: The verbal resignation can be accepted because there is no legal prohibition as long as it is accepted through writing. RELIEFS FOR ILLEGAL DISMISSAL • If there is violation on the substantive (act) & procedural (manner) aspects of due process, there is an illegal dismissal. • You may file it w/ Regional Arbitration Branch of the NLRC having territorial jurisdiction of the workplace of the complainant. Q: What are the normal consequences of illegal dismissal? A: 1. Reinstatement - restoration of the dismissed EE to his former position 2 Types of Reinstatement: a) Actual - employee reinstated to his former position; perform his services and receives his compensation - immediately self-executory pursuant to the Pioneer ruling , there is no more need for a writ of execution b) Payroll - he does not perform his services but receives his compensation • ER is given the option to reinstate either actually or in the payroll. • The ER may reinstate an employee in the payroll if the actual reinstatement is no longer possible. 2 reasons: (i) the ER believes that there was valid cause for the dismissal (ii) ER does not want to see anymore any unwanted face in the company premises bec. it may demoralize other workers Q: Is there violation of “no work, no pay” in payroll reinstatement? A: Generally, yes. BUT since it is the mandate of the law, although it is harsh, there is no violation under the dictum dura lex sed lex. • In the event that the ER is stubborn and does NOT want to reinstate the EE, the lawyer should do the ff: (i) File a motion for contempt against the ER; (ii) File a motion for the payment of monthly salaries; Page 5 of 18

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- There should already be sever antagonism where

(iii) Cause the issuance of writ of execution only for the reinstatement w/c is motu proprio on the part of the LA

the ER and EE cannot look at each other eye to eye anymore - As a form of compromise to reinstatement o Backwages and Separation Pay

2. Backwages

- restoration of the loss income brought about by illegal dismissal

- he should be paid separation pay as a form of compromise to reinstatement, if reinstatement is not possible • Refund Doctrine (Gino-gino case) is already abandoned by Garcia v. PAL - Refund salaries pending appeal is NOT allowed anymore or else it is unjust enrichment. 3. Damages, attorney’s fees and other benefits - it is NOT only stated in the LC but also in NCC. - moral damages is proper when dismissal is done in bad faith or against the law etc. - exemplary damages is proper when dismissal is done in oppressive, whimsical, arbitrary manner - moral and exemplary damage can be of equal amount depending on the LA - attorney’s fees in Art. III of LC shall not exceed 10% (this should be awarded to the winning party/ dismissed EE); he was compelled to litigate, in process he incurred litigation fee. • can award less than 10% • attorney’s fees in a form of damages (extraordinary concept) There are attorney’s fess in ordinary concept: a) lawyer/ retainership fees b) acceptance/ appearance fess

e) The position was already abolished or filled-up - Legal Impossibility - He should be reinstated in a substantially equivalent position - If this cannot be done, the remedy is payment of separation pay plus backwages as a form of compromise. f)

Prescription is four (4) years

- Four (4) years also in illegal dismissal cases g) Physical Disability - May undergo medical examination to determine fitness to work. • If you have a contagious disease, you cannot be reinstated - Occupational disease is compensable Personal Comfort Doctrine - Providing comfort and convenience - Injury or death is compensable - Act of State - Not conducive to working harmony - Employee is too old - Law does not provide reinstatement • Kasambahay Law; Migrant Workers Act; Kulangot Doctrine - Principle of Fiduciary Relationship PROCEDURE IN ILLEGAL DISMISSAL CASES

- If there is a violation of the substantive and procedural aspect — there is ILLEGAL DISMISSAL

4. 6% legal interest on monetary award to the illegally dismissed EE Twin relief of illegal dismissal Reinstatement and payment of full backwages from the time he was illegally dismissed until he was actually reinstated. INSTANCES WHEN REINSTATEMENT IS NOT PROPER: a) Dismissal for Cause b) Employee does not want to be reinstated c) Laches or Waiver • Unreasonable Delay in claiming your right to reinstatement - Employee can still look for a job while waiting for the outcome of his case, and even if there is already an order of reinstatement, he cannot be charged that the has already waived his right to be reinstated because in the meantime, he is earning to feed his family. d) Strained relationship w/ the ER • This cannot be used by the ER just to thwart or frustrate reinstatement - There should be extreme reasons to justify strained relationship

Where to File Illegal Dismissal: • Regional Arbitration Branch of the NLRC having territorial jurisdiction of the workplace of the complainant. • RAB – “over the workplace” A. Before it is filed with the LA: • It will be filed with the Single Entry Approach Proceeding (SENA). Purpose: Amicable Settlement B.

If SENA is terminated because there is no settlement reached by the parties, it will now be raffled with the LA.

1) Once it has been received by the LA, - it will be scheduled for the first 2 preliminary conference (PC) for the purpose of amicable settlement. • It is a mere duplication of SENA. - There is no prohibition upon the LA to grant another PC if it was moved by one or both parties. Although there are only 2 PC under the rules, it may still be granted, even if not provided in 2011 Rules of Procedure. BASIS: ART. 221


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• “Technical rules are not binding and prior resort to amicable settlement” - Relaxed in labor proceedings because the purpose is administration of speedy labor justice. 2) If after the PC, there is no settlement reached: a) The LA will require the parties to simultaneously submit position papers - This is called Position Paper Proceeding - Not a violation of due process because the parties are already given opportunity to be heard - This is substantial compliance with due process OR b) The LA can go on with the case on a trial type proceeding - Subject to LA’s discretion and not the parties. 3) If the position papers were submitted on the scheduled date - They will require a reply • A reply under the rule is the last pleading. • Submitted for resolution (30 days), while OFW cases (90 days) 4) After a decision is rendered and there is a finding of illegal dismissal: - The reinstatement is immediately self-executory - No more writ of execution If you were the Lawyer, ask the Client if he would APPEAL or NOT! • If they file a MOTION FOR RECONSIDERATION, he must comply with the requirements of appeal. - In one SC decision, MR was treated as a mode of appeal. • Upon receipt of the decision of the LA, you have 10 calendar days to appeal. Q: The EE won in the case, but there was no reinstatement as decided by the LA, the EE appealed. In the commission level, they ordered reinstatement provided in the decision of the NLRD and not the LA, is reinstatement immediately self-executory ? A: NO.

• File answer within 10 days from receipt of memorandum of appeal c. Posting of the appeal bond • Two Types of Bond to be posted: o Cash o Surety – issued by a reputable bonding company Q: What is the requirement of the law on bond? A: Monetary minus damages and attorney’s fees Q: Does the LA fix the amount of the bond? A: No. LA is not allowed to fix the appeal bond. The law itself fixes the appeal bond Q: How much are you going to post? A: Reasonable amount of the bond Q: Can the appellant employer file to reduce bond? A: Yes, but should be filed during the reglementary period to appeal accompanied by posting a reasonable amount of the bond. Q: What is he did not post a reasonable amount of the bond, instead he posted 10% of the monetary award. Is this allowed? A: In the case of Mcburnie v Ganzon, 10% is allowed but applicable only for the purposes to reduce the bond but not to perfect an appeal Q: What if he filed to reduce bond but did not post bond, what is the legal effect? A: The decision of the LA will become final and executory under the Doctrine of Immutability of Final Judgment. XPN: Backwages are continuous/addup until fully satistfied; Can file motion for recomputation of backwages even if decision is already final d. Personal Service e. Approval of the record of appeal • XPN to Bond: o UERMMC Case, wherein the Employer can post bond provided value of property is substantial to cover monetary award. Q: Can you post 10% for perfecting an appeal? A: No. • In Macberry v Ganzon, the SC allowed 10% initial amount.

NOTE: ! !

If done by the LA – YES If done by the NLRC, COMMISSION LEVEL – NO because it requires issuance of a motion

(4) APPELLATE JURISDICTION 1. Before it is assigned to a ponente commissioner, there will be a consultation. - Purpose is to prevent a one-man decision

REQUIREMENTS OF APPEAL a. Payment of docket fees • If not paid, appeal will be dismissed because it is a matter of jurisdiction b. Submission of a memorandum of appeal • Copy furnish the other party • Mere procedural or formal lapse if you do not give a copy; not fatal Compiled by A.A. Dizon ’15-’16 Updates by CRUZ.DE DIOS.RUIZ

Q: What if before the commissioner decides on the merits, he required the parties to have a conference for purposes of amicable settlement? Is this allowed? A: No legal prohibition. Technical rules and procedures are relaxed in labor proceedings. Q: If no amicable settlement, they submit for decision. If the LA affirmed in toto by the Page 7 of 18

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commission, the employer loses again. What should the employer do? A: File a motion for reconsideration within 10 days from receipt Q: What are the purposes of the MR? A: - To rectify the error committed - To comply with the exhaustion of administrative remedies - The MR is a requisite sine qua non prior certiorari Q: What if, MR is denied, and upon receipt of the denial, how many days to file a petition in Rule 65? A: 60 days Q: What should be included in the petition? A: Three essential dates Date of receipt of the decision of the NLRC Date when MR was filed Date of receipt of the denial of the MR Q: In your petition to the Court of Appeals A: Submit 3 hard copies and the soft copy & pay the docket fees and other fees. 2.

3.

If duly receive by the CA, it will be raffled. • The raffling of cases in the CA is always observed and participated by one justice. • Every raffling day, there is assigned justice of CA. Before it is assigned to a Justice member, there will be another consultation - To prevent one-man decision Q: What if the petition is lacking in form because he only attached photocopied documents? A: They will ask you to submit certified copies; The CA may require the other party to submit a comment, answer, or reply. Q: Upon submission of the petition, what is the other party was not notified to submit a comment? Can you submit a comment without being notified? A: Yes. Submit with leave of court.

4.

Usually, for the settlement of backwages and reward, there is mediation, but if there is non, then it will be decided on the merits based on the documents submitted. When all the documents have been submitted, the CA will notify the parties that it be submitted for resolution.

• If they lose – file an MR • If denied – file it within 15 days Q: Can you file a motion for extension of time to file? A: Yes. Compiled by A.A. Dizon ’15-’16 Updates by CRUZ.DE DIOS.RUIZ

SUPREME COURT GR: File with the SC on the ground that there are purely questions of law and GADALEJ o Because CA is their fact-finder XPNs: If there are mere speculations Possibility that there were facts not given serious consideration or if given consideration, this may amend or modify the decision The decisions of the LA, NLRC, CA are contrary to each other; in collision or at odds at each other; when the decisions are diametrically opposed to each other. Before Entry of Judgment Q: If the SC still decides against the ER, can he file an MR? A: Yes. Q: If the MR is denied, can you file MR over the denial? A: Yes. Q: If denied again, can you file another MR? A: Yes. • You can file until finally, the SC issues a resolution that you cannot anymore file a motion, otherwise, it will be dealt with accordingly. Entry of Judgment • Pre-execution conference • The decision will now go down to the level of the LA for purposes of execution Q: What will the prevailing party do? A: File a motion for the issuance of a writ of execution, but the LA will not just issue a writ, the motion shall be subject to a hearing. Q: The losing party can still appeal. What if the respondent ER did not appeal? A: Upon expiration of the period to appeal, you can file a motion for the issuance of the execution. This will be subject to a hearing. There will be a preexecution conference. • When the decision is already ripe, for enforcement, then you can file a motion for the issuance of a writ of execution. Q: For the losing party, can they still protect their interest? A: Yes. File a motion to quash the writ of execution. Q: What are the grounds for a motion to quash? A: 1. That the decision of the LA is incomplete 2. The amount of the awards is not provided in the dispositive portion 3. That the decision by which execution is based is a product of graft and corruption 4. That the writ of execution is irregularly issued

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5.

That the writ of execution was issued against the client who is not a party to the case TYPES OF EMPLOYMENT

(1) REGULAR - Has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer - Has rendered at least one year of service, whether such service is continuous or broke, with respect to the activity in which he is employed. 2 Types of Regular Employment: a. As to the nature of work - That the EE performs the job that is usually necessary and desirable in the usual business of the employer b. As to the years of service - At least one year of service, whether continuous or with intervals • Mechanic – Regular because UND • Carpenter – Not regular; Only performs incidental work to the principal action; Casual employee o UNLESS he renders work for 10 years i.e. auto repair shop Other types of Regular Employment: 555 Doctrine - Constant renewal of contract - Successive and constant rehiring - Falls under regular employment (ii) Probationary EEs - upon expiration of the probationary period, he becomes a regular employee (iii) Project EEs - if hired constantly, they ceased to be project employees but they become regular employees (i)

• In the case of Millares v NLRC and Zamora case, despite constant rehiring, the employee will never become a regular employee i.e. seafarer. (2) CASUAL (3) CONTRACTUAL (4) PROBATIONARY - Period to learn the job - Period of evaluation - Prelude to regular employment - Training ground GR: 6 months for probationary period XPN: The ER-EE can agree on probation below or beyond 6 months, depending on the technicality of the work • PLDT case – nature of the job required extensive training, probation was agreed to be beyond 6mos. • In case of teachers – full time satisfactory service for 3 years Q: What about apprenticeship and learnership, is this a training period? Compiled by A.A. Dizon ’15-’16 Updates by CRUZ.DE DIOS.RUIZ

A: Yes Q: If the training period in the apprenticeship and learnership expires, should it be considered as probationary period? A: Yes Q: What if a week before the apprenticeship is done, the employer told the apprentice that he will consider him a regular employee, but before you become a regular employee, you have to undergo probationary period, is this valid? A: No, that would amount to double probation that is not allowed by the law. (5) SEASONAL - If the employee was employed from season to season performing the same task, he is a regular seasonal employee. (6) PROJECT - Akin to contractual employment - After project, auto matic termination of ER-E E relationship. - Constant rehiring of a project employee, he becomes a regular employee - Upon termination of every project, the employer should submit a report on termination of projects to the nearest DOLE office. o Legal Consequence: Project becomes regular - Not entitled to normal consequences of illegal dismissal because employed for a fixed term. (7) NON-PROJECT 3 types of Non-Project a. Casual – Perform incidental work b. Probationary – After 6mos becomes regular c. Regular Q: If the project/non-project are employees belonging to the work pool, they can be taken out any time and be assigned from one project to another. If you were assigned in Phase 1 Project A then at Phase 3 of Pr ject B, is this valid? A: Yes. You are an employee belonging to the work pool, then you are treated as a regular employee • In apprenticeship, if the contract was prematurely terminated, the apprentice does not automatically become a regular employee • In learnership, the learner becomes a regular employee if contract was prematurely terminated provided that he has already been trained for two months. RETIREMENT • The Labor Code is not a source of retirement benefits before but the IRR provided for it until the law on retirement (RA 7641) has been enacted. Now, it is a source of retirement benefits. Q: What is retirement? A: Bilateral act between employer and employee where the latter upon reaching a certain age, has to

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separate himself from employment in order for him to enjoy yhe remaining years of his life. Q: Age of retirement A: Compulsory – 65 y/o Optional – 60 y/o Underground Miners – 50y/o

GR: If more than P5K, LA has jurisdiction XPNs: 1.

Provided in the original Article of 263-G, on assumption of jurisdictions - That the assumption power is by nature PFCD. You cannot fault the Secretary of Labor in assuming jurisdiction in labor dispute. - If one of the instances under assumption is money claim, even if it’s P5k below or above, since one of there is under assumption, the President or Secretary has jurisdiction

2.

Under Art. 126 of the LC - Visitorial, inspection, and enforcement power of the Secretary of Labor, but this is exercise through the Regional Office of the DOLE - It it’s a money claim, regardless of the amount of the claim, Regional Office has jurisdiction

Q: Component parts of retirement A: 22.5 x # of yrs of service - 15 days a month for every year of service - 5 days service incentice leave - 1 ! for 13th month pay Q: Can additional benefits be included in the retirement pay? A: GR: No XPN: Unless they are voluntary benefits agreed by the parties

Q: How may the RO take cognizance of a money claim regardless of the amount? A: Can be motu proprio, by way of a labor standards complaint filed by any employee. On the basis of the labor standards complaint, the RO through the RD issues an inspection audit. Audited for the purposes of determining WON the employer complies with labor standards rules and regulations.

Q: May the employer and union agree on an early retirement plan? A: Yes Q: Employer and union agree that an employer for a just cause is not entitled to retirement benefits, is it valid? A: SC said it is valid; not against public policy PRESCRIPTION

3.

• THREE YEARS - Purely money claims - Incremental proceeds from tuition fee hikes - Employees compensation claims - Union funds - Service Incentive leave from the receipt of the claim of the employee - Criminal cases under the labor code XPNs: - ULP – 1 year - Simple Illegal Recruitment – 5 years - Syndicated illegal Recruitment – 20 years - Large scale/qualified illegal recruitment – 20 years • FOUR YEARS - Illegal Dismissal o Violation of constitutional right to property o Right to security of tenure based on due process and equal protection clause - GSIS Claims XPN: Retirement and life insurance claims – Imprescriptible - Reinstatement • TEN YEARS - Social Security Claims • TWENTY YEARS - To collect contribution of employers MONEY CLAIMS Compiled by A.A. Dizon ’15-’16 Updates by CRUZ.DE DIOS.RUIZ

Money claim pending with the LA can still be transmitted for voluntary arbitration by agreement of the parties. Q: Where is the document required under the law, for the voluntary arbitrator to take cognizance of the case? A: This is what we call “Submission Agreement”. The vital industry dispute can be resolved by a voluntary agreement of the parties. • All the matters of employer-employee relationship, the LA has jurisdiction • Damages – the usual consequences of an illegal dismissal: a) reinstatement b) payment of backwages c) 6% etc. • The LA can award damages, attorney’s fees, and other backwages STRIKES AND LOCKOUTS

• Any stoppage of work by concerted action of employees as a result of any industrial or labor dispute - No such thing as permanent strike - Counterpart of strike is lockout Active Parties - Employer - Employee Passive Parties - Government - Public Page 10 of 18

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- Staged against a non-employer TYPES OF STRIKE: 1. AUTHORIZED STRIKE - A strike that is approved by the majority of the total union members - Upon the union’s consent Q: How would you determine approval or consent of workers in union? A: This is done through strike voting Q: What is the purpose of this AS that it should be approved by the union members? A: The SC said, the purpose it to prevent a wildcat strike, prevent corruption. 2. WILDCAT STRIKE - Unauthorized strike - Without approval of union membership

4. GENERAL STRIKE - Political, sympathetic type of strike that is staged against non-employers because it’s a strike against the government - Covers a wider area of staging a strike. - Strikes by jeepney federations; transportation strikes Q: Why sympathetic? A: No ER-EE relationship 5. SLOW DOWN STRIKE - To reduce production - Illegal because it violates the ‘no work, no pay’ labor principle 6. SIT DOWN STRIKE - Other form of slow down strike - Worker are confined in the plant, they reduce to perform the work for a short period of time. After some time, they resume. - Also violates ‘no work, no pay’ principle. 7. QUICKIE STRIKE - Impromptu - Of short duration - Outside of the company premises

• In Pascual Liners case, he union staged a strike for the purpose of compelling the employer to recognize them as the bargaining agent. That is illegal because strike is not one of the modes in determining representation status. 13. LIGHTNING STRIKE - Of short duration - Brief and Concise - Without compliance with the requirements of a lawful strike. 14. LABOR PRACTICE 15. GOOD FAITH STRIKE - Illegal; not a defense in a strike said the SC in the case of Grand Boulevard Hotel v Dacanay. - In GF strike, the union stages a strike on the ground that the employer was committing ULP but it was later on found out that the employer was not committing ULP, in the meantime the union held a strike without compliance with the requirements of staging a lawful strike. 16. LEGAL STRIKE - In conformity with the requirements that are not complied within declaring a strike 17. ILLEGAL STRIKE - There were requirements that are not complied with declaring a strike

8. BRIEF 9. ORDINARY 10. ECONOMIC STRIKE - A result of a bargaining deadlock on economic issues - With the breakdown of the negotiation process, the union can file a notice of strike directly with the NCMB - There are economic concessions where the employer is not ready to five, that is why there is economic deadlock. - ULP because this is a strike staged in violation of the constitutional right of workers to self-organization.


Q: Four modes in determining the bargaining agent/ contracting union/bargaining agency? A: 1. Sole Exclusive Bargaining Agency (SEBA) Certification 2. Consent Election 3. Certification Election 4. Run-off Election 5. Re-run Election Q: Is strike one of the modes in determining the bargaining agent? A: No

3. PARTICULAR STRIKE - In one particular business establishment where a strike is staged - Confined

11. SYMPATHETIC STRIKE

12. UNION RECOGNITION STRIKE - To compel the employer to recognize one’s union as the employee’s bargaining agent.

Requirements for Staging a Lawful Strike 1. There must be a collective bargaining o It must be based on a lawful and factual ground 2. It must be approved by the total union membership 3. It should be declared only on two strikable issues a. CBA deadlock b. ULP 4. Filing of notice of strike o File it with the NCMB (Nat’l Conciliation & Mediation Board) o If it is economic - 30 days; if ULP – 15 days (pulling off period) o Notice of cooling-off period Page 11 of 18

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- To reduce the tension, heightened emotion

A: GR: No, because of the no work no pay principle XPN: 1. On paying the backwages 2. If the strikers were discriminatorily dismissed or if they did not strike but were actually illegally locked-out by the employers 3. The strikers unconditionally offered to return to work but it was rejected by the employer From the time of rejection, the strikers are entitled to backwages

• Pulling-off period 1. Principle of Improved offer 2. Principle of Reduce offer 5.

Compliance with the 24-hour prior notice rule o Notify the employed and NCMB of the place, date, and time o In order for NCMB to send a representative during strike voting o If no representative, not fatal. Important is that they were notified.

6. 7.

Strike Voting Submission of the strike voting o 7 days waiting period

• The offer to return to work of the striking workers should be unconditional.

Sabay tayo Doctrine - Same day for notice of strike and strike voting • No prohibition provided you complied with the 24-hour prior notice rule and other requirements • During the cooling off period, an officer of the union was dismissed which constitutes union busting. Q: If there is a union busting, can a union immediately stage a strike? A: The SC said, if you have already complied with other requirements, you can immediately stage a strike. You can dispense with the cooling off period but you can never dispense with the 7-day waiting period. • In the case of strikes in union hospital or clinics, the parties are required to establish an effective skeletal workforce. If there are patients in the emergency and ICU area, and there are no medical helpers to assist, then it would be a problem. This is the philosophy behind why there should be an effective workforce schedule. 8.

Compliance with the doctrine of means and purposes - The purpose must be legal and the means used in attaining it should also be legal. - Must comply with all the requirements

Doctrine of Means and Purposes • If illegal means were committed during the strike, according to the SC, the union cannot use slanderous, libelous, scandalous, scurrilous, utterances. • If there is massive violence, also illegal. • In case of the declaration of illegality of strike, those who are liable for dismissal are the officers of the union under the doctrine of vicarious liability. Q: Officers of the union participated during strike. Liable? A: GR: Not liable for ordinary strike XPN: If actively participated, they can be dismissed BUT must be categorically identified, if not, violation of due process.

Q: Can Right to Strike be waived? A: GR: No XPNs: 1. No strike no lockout clause in the CBA 2. In case of assumption order issued by the President 3. In case of Preventive Mediation Order LOCKOUT A weapon of the employer; same requirements in staging a strike; refusal to furnish work to employees •

HOW TO HAVE AN EFFECTIVE STRIKE • There must be an effective picketing to have a strike Q: Can there be picketing without a strike? A: Yes. Picketing is a guaranteed freedom under the constitution. In the words of US SC, stranger picketing is constitutionally guaranteed. It was resounded by the PH SC as part of freedom of expression. Q: During picketing period, illegal acts committed affected third persons. ULP? A: Yes, notwithstanding no ER-EE relationship. Doctrine of Innocent Bystander. Strike of Government Employees • Not applicable • They are granted the right to collective negotiations • Beyond CAN o Matter fixed by Law o Those that pertain to appropriation/Budget (constitutional prohibition) o High level employees

- Private Sector – Collective Bargaining Agreement - Public Sector – Collective Negotiation Agreement It is settle that Government Employees cannot stage a strike because: 1. It will be a form of insurrection against public authority in the light of the principle of state sovereignty. This principle disqualifies government employees to stage a strike 2. Government employees are civil servants. They serve the people that is why if they strike, such strike is a civil service offense. (PD 807)

Q: Will they be entitled to economic benefits? Compiled by A.A. Dizon ’15-’16 Updates by CRUZ.DE DIOS.RUIZ

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3.

It will affect the delivery of vital and basic services to the people XPN: GOCCs without original charters known as corporate offsprings or subsidiaries wherein they can CBA and strike.

Some Government Employees who cannot strike: - High level employees - Members of the AFP, PNP, BJMP, and Firemen

XPN: Section 10, RA 8042 (Compensation claims of overseas workers) BUREAU OF LABOR RELATIONS (BLR) • The powers, functions, and jurisdiction of the BLR are intertwined with the powers and functions of the Regional Office of the DOLE • Except conciliation matters • In case of registration of unions and federations, BLR. In case of registration of independent unions, RO of DOLE

JURISDICTIONAL AREAS

RIGHT TO SELF ORGANIZATION

Q: Does the LA have jurisdiction over matters involving certain churchmen? Austria v NLRC A: On secular matters – YES On purely religious matters - NO Q: Issuance of writ of execution A: LA Q: Over third-party claims because a writ of execution is issued against a party? A: LA

GR: Applies to all XPN: (Those disqualified by law) 1. Managerial employees 2. Members of the cooperatives 3. Confidential Employees entrusted w/ confidential information Kulangot Doctrine/ Confidential Employee Principle: On matters of labor relations ONLY – they cannot form union 4. High level employees in Govt Sector 5. Members of the AFP, PNP, BJMP, BFP

Q: Money claims filed by the employees who are members of a cooperative? A: Arbitration Committee has jurisdiction

Q: Can aliens or non-resident aliens form a labor union? A: GR: NO. XPN: Principle of reciprocity – if their country extends the same rights of Filipino workers

• Members of cooperative cannot file money claims against cooperative since they are part-owners of the cooperative Q: Over Foreigner Government? A: LA has no jurisdiction

Q: Under the Constitution and Labor Code, what is the labor organization that is contemplated? A: Legitimate labor organization – one that is registered either with the BLR or RO of the DOLE.

Q: Over PH government? A: LA has no jurisdiction Q: Under the Principle of State Sovereignty? A: COA • Any money claims filed against the government should be with the COA Q: Does LA have jurisdiction over international agencies? A: None; imbued with functional immunities Q: Does LA have jurisdiction over intra-corporate cases? A: None; RTC (no longer the SEC under Securities Act of 2000) • Corporate officers are created by board – LA has no jurisdiction • If not corporate officer and he was dismissed – LA has no jurisdiction Q: Does LA have jurisdiction over training agreements? A: None; DOLE GR: LA has no jurisdiction over - Death Claim - Philhealth - Insurance Claim Compiled by A.A. Dizon ’15-’16 Updates by CRUZ.DE DIOS.RUIZ

REQUIREMENTS FOR REGISTRATION –— to be legitimate labor organization 1. Payment for registration fee 2. Submission of the constitutional bylaws 3. Names of officers and members 4. In case of first time registration: - Minutes of the org meeting by Sec/ Treasurer of the union requested by President If the union is already existing for some time: - Financial statement of the union •

•

Upon submission, it is now ministerial on the part of the RO of the DOLE to issue a certificate of registration compellable by Mandamus.

LEGAL EFFECTS OF REGISTRATION: (Rights of a legitimate labor organization) 1. Right to representation This applies ONLY to union members 2. Right to be certified as the bargaining agent in the company - Applies to ALL employees 3. Right to sue and be sued in its registered name 4. Right to own property 5. Right to tax exemption 6. Right to engage in activities that redounds to the welfare of the members of the union 7. Right to be copy furnished w/ the audited financial statement of ER – upon request of union Page 13 of 18

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-

- Most efficacious, most expeditious manner

Employer will ONLY be liable for ULP (Surface Bargaining) if there is request coming from the union. A u di t ed F S s h o ul d b e p r e pa r e d b y a n independent, credible, external auditor. Not company auditor otherwise it would be self– serving.

in determining the will of the employees • Double Majority Rule - First Majority Rule • At least a majority of all eligible voters in the bargaining unit must have cast their votes - Second Majority Rule • The union receiving the majority of the valid votes shall be certified as the exclusive bargaining agent (provided for all contending unions, 50% of the votes have been validly cast )

THE RIGHT TO BE CERTIFIED AS COLLECTIVE BARGAINING AGENT Q: What is Agency Shop/ Treasury Shop/ AntiHitchhiker Clause / Anti- Free Rider Clause? A: Requires non-members to pay fees equivalent to the amount of union dues. Q: Is there still a need to conclude an agency shop to be concluded by the parties in the CBA? A: No more need because law itself provided agency shop. It’s in the law stating that non-union members who received CBA benefits are required to pay fees (agency fees) equivalent to the amount of union dues to support the union that made the benefits possible. Or else there will be unjust enrichment. MODES OF DETERMINING COLLECTIVE BARGAINING AGENCIES IN THE BARGAINING UNIT 1.

2.

SEBA (Sole Exclusive Bargaining Agent) CERTIFICATION - Any union can file to be a SEBA in a bargaining unit - Only 1 union can be certified or recognized as a SEBA - Similar to Voluntary Recognition: o There is only 1 union in the bargaining unit o It should have majority support

RE-RUN ELECTION

- Subsequent certification election - 3 instances: a. b. c.

There is failure of Certification Election as declared by the election officer (below 50% votes cast) There is a tie between 2 unions There is a tie between a union and a nonunion

5. RUN-OFF ELECTION - Automatic second election rule: 50% votes cast but no one garnered majority vote When an election which provides for 3 or more choices, results in no choice receiving a majority of the valid votes cast, the election officer shall motu proprio conduct a run-off election bet. the labor unions receiving the 2 highest number of votes. Provided that the total number of votes for all contending unions is at least 50% of the number of votes cast.

CONSENT ELECTION

- Election voluntarily agreed upon by 2 or more unions, w/ or w/o intervention of the RO of DOLE, to conduct an election to determine the bargaining agent in the bargaining unit. - Between & among unions in the unit, they have consented among themselves to conduct an election.

3.

4.

CERTIFICATION ELECTION (CE) - The process of determining thru secret ballot, the sole and exclusive bargaining agent of the employees in an appropriate bargaining unit, for the purposes of collective bargaining. • Sole concern Rule - It is the sole concern of the workers/ employees • Bystander Rule - The employer, who has no legal standing, is a mere bystander in certification election - Limited to being notified or informed of the filing of the petition for CE X P N : May file a petition for certification election in order to determine WON this union has the majority status • Best Forum Rule


CERTIFICATION ELECTION (Further discussion) Consent/ subscription requirement to conduct CE • 25% of all the employees in the appropriate bargaining unit - If met mandatory to conduct CE - If not met, discretion of RO of DOLE Vote requirement • 50% majority vote Q: What if the 25% consent requirement is not complied with, may a CE be conducted? A: Discretionary upon the RO of the DOLE to conduct CE. Reason: Because in conducting CE, even if 25% is not met, this is the most expeditious manner in determining will of employees. Q: If below 50% there is no valid CE – there is failure of CE. If there is failure, what is the legal effect? A: Re-run election. If there is failure, w/in 6mos, by motion, a CE can be filed. Q: Who declares failure of CE? A: Election officer Q: If 50% has been complied with but no one garnered majority vote, what is the legal effect? A: Run-off election. Automatic 2 nd election. Page 14 of 18

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NO UNION • Situation wherein there are 3 or more choices but a “no union” won: - A no union may win on account of freedom of religion. There are religious groups allowed by law not to form unions (Iglesia ni Cristo) - A non-union cannot exist in a run-off election. Q: Why does the constitution allow certain religious groups NOT to join labor unions? A: Bec. Freedom of religion is freedom of conscience Q: If a no union won, does the law allow that in a bargaining unit, there will be no union for some time? A: No union situation rule will be allowed only for 1 YEAR. There will be a certification to that effect that in the meantime for 1 year, there will be no union. Those religious groups may still vote in CE by voting “no union”.

A: Still valid, but there is no prohibition upon the new CB agent to shorten the life of the CBA. Legal basis: • New CB agent can move for shortening on the ground that nature of CBA is a contract in personam. • Substitutionary doctrine: allows the substitution of the old CB Agent with the new CB agent – but it will not affect the validity of CBA contracted by old CB agent. 60 DAY FREEDOM PERIOD • CE shall be conducted in the 60-day freedom period • Can also file a petition for intervention during this period. • Federations can also file petition for disaffiliation from the federation of a member union. 2.

ONE-YEAR CERTIFICATION BAR RULE

- No CE conducted within 1 year following the final election results

WHO CAN VOTE IN A CERTIFICATION ELECTION • ALL rank and file employees • Probationary employee • Dismissed employee - Provided he contested his dismissal. - If he contested, that means the EE-ER relationship is just suspended.

- CE may not be held within 1 year from the date of issuance of final certification result (there was an actual conduct of elections) - Applies to all modes of determining CB agencies 3.

DEADLOCK BAR RULE

- CE cannot be conducted during the existence of a bargaining deadlock

- During the bargaining process, bargaining may break

Q: Do you determine the eligibility of voters in the CE? A: NO. The CE is not proper forum. The proper forum is the “Inclusion-Exclusion” proceedings or the preelection conference. INSTANCES WHERE CE IS BARRED/ CANNOT BE CONDUCTED – despite compliance with 25% consent requirement 1.

CONTRACT BAR RULE - CE may not be conducted during existence of the CBA XPN: within 60-day freedom period immediately preceding the 5th year of such CBA (prior to the expiration of such CBA)

down, economic concessions cannot be given out by the employer – it will create a deadlocl - When you file a notice to strike due to bargaining deadlock – it prohibits filing of CE 4.

OUTSIDE THE FREEDOM PERIOD RULE

- A petition for CE or Motion for Intervention filed before/after the freedom period – shall be dismissed outright.

5.

NEGOTIATION BAR RULE

- No representation issue may be entertained, if before the filing of a petition for CE, the certified bargaining union has commenced negotiations with the employer w/in 1year from date of mode of determining CB agencies.

• As to representation: 5 YEARS • As to negotiation: 3 YEARS 6. Q: What if there were negotiations, at the end of the 3 rd year the terms and conditions were approved by the parties, ratified by the employees.

APPEAL BAR RULE

- An y re pr esen ta ti on issu e, th e on e th at ha s jurisdiction is the Mediation-Arbiter.

- The ruling of the Med-Arbiter is directly appealable to the DOLE Secretary.

What is the duration of the validity of such terms and conditions re-negotiated not later than the end of the 3 rd year of 5-year representation aspect of the CBA? A: Period of validity – 2 years

- Pending resolution to the appeal, cannot file CE. 7.

CHARGE OF COMPANY UNIONISM RULE

- This is ULP. The employer captivated the hearts and emotions of the union.

Q: What if the 5-year representation aspect of the CBA (old CBA) expired, no new CBA has been agreed upon, is there hiatus bet. the relationship of employees to the union? A: NONE. Automatic Renewal Clause - Law provides that the old CBA will subsist under the principle of CBA continuity. Q: What if CBA exists, and during the lifetime of the CBA, there was a change in the CB Agent. Effect? Compiled by A.A. Dizon ’15-’16 Updates by CRUZ.DE DIOS.RUIZ

- Cannot conduct CE bec. It is a prejudicial question. - The charge of ULP shall be resolved first before you can file CE Q: In the case of company unionism, can the union file for CE? A: No, because SC stated that it is a prejudicial question which should be resolved ahead of CE. However, there is a department order that said it is not a PQ. SC prevails. Page 15 of 18

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NOT LISTED IN THE REGISTRY RULE - When the petitioner is not listed in DOLE’s registry of legitimate labor union or that is legal personality has been revoked or cancelled with finality. GR: Only legitimate unions can file CE. Nonregistered unions CANNOT file CE XPN: RA 9481 o A chartered local that is used a charter certificate by a federation or national union, such local chapter is granted with an imperfect, partial, incomplete, legal personality o Although not registered, it can file but only for purposes of CE

Q: What if Union B filed for a CE. Union A contends that they filed outside the 60-day period. Is Union A’s contention valid? A: No. Because Union B can file a petition for CE outside the 60-day period as XP bec of mass withdrawal, split from the majority union.

8.

Federations are composed of 2 types: 1) Affiliates 2) Local chapters issued by chartered certificates Q: May a local chapter become a full legal person? A: Yes. By submission only of the requirements of the law • Charter certificate • Consti bylaws • Names of officers & addresses • Local chapter’s location and address INSTANCES WHERE CERTIFICATION ELECTION IS ALLOWED (Exceptions to the Contract Bar Rule) 1. CBA is not registered - CBA is the law of the plant • It shall be approved by the parties, ratified by the employees, and registered to the RO of the DOLE - Purpose of registration: To bar CE - IF not registered: Any legitimate labor union can file for CE. 2.

CBA is incomplete/ inadequate - Because of the collusion of the ER and the union, the contract became a sweetheart contract that does not provide substantial economic benefits to the workers. - The terms and conditions are substandard, incomplete and inadequate. - Will not bar CE

3.

CBA has been hastily entered into or prematurely extended - Done outside the 60-day freedom period. - CBA has been prematurely extended. - Doctrine of premature extension – not bar CE

4.

In case of mass disaffiliation, mass withdrawal or split from majority union - Union A (majority union members) transferred to Union B. Union A despite lack of members can STILL bargain. - Until and unless the majority union is defeated in the CE, in the eyes of the law, it is still the majority union.


COLLECTIVE BARGAINING AGREEMENT (Usual contents of CBA enumeration, check p. 20 of Dizon Notes) (1) UNION SECURITY CLAUSES WHY? - For union to have a mass based support, because thru this, the union will be a strong union who can maintain its vitality in the bargaining process with the management. “Closed shop agreement” Q: What is the important provision that should be injected in the closed-shop agreement? A : A u n i o n m e m b e r s h o u l d m a i n t a i n h i s membership in good standing to retain his employment. o If nowhere to be found: It is a mere hiring agreement NOT closed shop agreement. •

SC: The title or nomenclature is not important, what is important is the BODY which provides the proviso that the union member must maintain his membership in good standing in order to retain his employment. If not there – construed against its existence - A closed shop agreement must be accompanied by maintenance of membership shop - In union shop, once employed, you must maintain membership with the contracting union and must maintain good standing also. Q: Assuming closed-shop agreement is valid, can the union request the ER to dismiss an expelled union member? A: Yes. Upon request of the union. Q: If you are a lawyer of the ER, what will you advise if there was a request from the union to expel the said EE pursuant to the closed-shop agreement? A: I will advise ER to observe due process. If ER did not comply with due process even if there was a closed-shop agreement, it may amount to illegal dismissal. If ER observed due process – the only relief that may be imposed to the ER is REINSTATEMENT. o For other benefits: the union will be liable.

(2) COMMON FORMS OF UNION SECURITY CLAUSES ( Enumeration, Dizon Notes p. 21) (3) MUTUAL OBSERVANCE CLAUSE - Some CBAs provide that upon signing the agreement, it has become effective, the parties are required to comply with the terms and conditions of the CBA in good faith. - They shall be mutually observed in good faith.

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(4) INCREASE IN WAGES - Economic in nature. - Escalator clause o In the event of sudden increase in the consumer price index or cost-of-living index brought about by soaring prices of prime commodities o There is an agreement bet. parties that there should be a corresponding gradual increase of wages. o If price decreases – wages not decreased. (5) NO STRIKE, NO LOCKOUT CLAUSE - Waiver on the right to strike GR: The right to strike cannot be waived XPN: Instances when right to strike CAN BE WAIVED: 1. No strike, no lockout clause in the CBA 2. Issuance of an assumption order 3. Issuance of a preventive mediation order - Any notice of strike is filed at the NCMB - NCMB should issue a preventive mediation order and the purpose of this is to convert the notice of strike in to a preventive mediation case. GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION - Also known as Conclusive Arbitration Clause - The judicial aspect of the CBA Cases cognizable by the grievance machinery - Those arising from the interpretation or implementation of the CBA and those from the interpretation or enforcement of company personnel policies. PROCESS: 1. Initially grievance could be resolved w/ the intervention of the union officer aka SHOP STEWARD who narrows down the issues for resolution to the highest mgt officer 2. Still not resolved: It shall be brought to the resolution of the grievance machinery 3. Still not resolved: It shall be submitted for voluntary arbitration. Q: What is the nature of the transmittal from the grievance machinery to voluntary arbitration? A: The Labor Code answers this in the nature of an APPEAL Q: If instead of submitting to the grievance machinery, they addressed it directly for voluntary arbitration, is this allowed? A: Yes. SC said there is no prohibition and is in accord w/ speedy labor justice. In Central Pangasinan Case, Al le ge d vi ol at io n of th e CB A gr ie va nc e procedure is moot and academic. The parties’ active participation in the Voluntary Arbitration proceedings and failure to insist that the case be remanded to the Grievance Machinery – shows clear intention to have the issue of respondent’s


illegal dismissal directly resolved by the voluntary arbitrator. HELD: It is unnecessary to rule on the matter in light of the preference to bring the illegal dismissal dispute to voluntary arbitration w/o passing thru the grievance machinery. DECISION OF THE VOLUNTARY ARBITRATOR The decision of the voluntary arbitrator (VA)– appealable to the CA RULE 43 (ordinary appeal) pursuant to Luzon Development Bank case: HELD: The VA no less performs a state function pursuant to a governmental power delegated to him under provisions therefor in the Labor Code – he falls w/in term “instrumentality” pursuant to Sec. 9 BP 129 The fact that this functions and powers are provided for in the LC does not place him w/in the XPNs to said Sec. 9 since he is a quasi-judicial instrumentality as contemplated therein. •

• The decision of the VA has the legal effect of a decision of the court that is why it is appealable to the CA. GRIEVANCE: • In the absence of a CBA, a grievance may still be resolved. GM is not confined only when there is CBA. • A grievance is usually initiated by the EE, but there is no legal prohibition upon the ER to initiate a complaint on matters that involve any ambiguity in the enforcement or interpretation of company policies and collective bargaining. Attendance in grievance machinery: • Parties are required to attend the GM procedures. • Fails to attend: This party can be liable for ULP bec. attendance in the GM is a requirement in the CBA • There will be a violation of the CBA and this can be treated as an ULP – refusal to bargain Do not want to attend because they want it to be • directed to VA - ALLOWED OTHER MATTERS COGNIZABLE BY VA 1. Cases cognizable by the LA, transmitted for VA, by agreement of the parties - Submission agreement should be submitted to the VA so that VA can recognize the case - 2 remedies if any one of the parties does not want to submit: a) Notice to arbitrate – to compel other party to submit for arbitration b) Submission agreement by virtue of the parties 2. 3.

Wage distortion problems in unionized establishments Ordinary violations that will not amount to gross violation of the CB 4. Matters for compulsory arbitration ex. Illegal dismissal - If illegal dismissal is submitted for VA, VA can take cognizance of other collateral matters like award of backwages and atty fees 5.

Productivity incentives

- VA may resolve vital industry dispute by agreement of the parties – submission agreement required

- It is allowed: RO of DOLE was appointed as VA Page 17 of 18

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Administrative Intervention in an on-going dispute • There is an order of the DOLE where you can request for administrative intervention to resolve an on-going labor dispute on matters of interpretation of company policies and collective bargaining • PROVIDED: this on-going dispute is not subject of a notice of strike or subject to any labor body. It should be filed by way of request to the Sec. of DOLE. • This is also a form of arbitration

ex. Poultry raising and Cinema – no same interest so 1 interest = 1 bargaining unit 3.

Prior collective bargaining history test

- Consider the bargaining history between the bargaining unit and the ER

4.

Similarity of employment status test

- Determine on account of status of employment ex. Teachers in college and HS should not have separate appropriate bargaining unit

DOLE REGIONAL DIRECTORS AND ASSISTANT REGIONAL DIRECTORS AS EX- OFFICIO VOLUNTARY ARBITRATORS • It is allowed on matters of interpretation of company policies and collective bargaining • Whatever matters involving labor dispute under the administrative intervention of the DOLE, if the Sec. of Labor will not resolve it, the Sec. may refer it to the Reg. Director or Assistant Reg. Director of the DOLE – because they are designated EVA (Ex-officio VA) CBA IS THE LAW OF THE PLANT

- It is the fundamental charter that governs the relationship of the ER and the union. • IF CBA has a conclusive arbitration clause yet a notice of strike is filed by the union, union CAN BE SUBJECT OF ULP. o SC: What will be the use of this clause if it will not be complied with. CBA is the law of the plant. If not complied with either of the parties will be liable.

CORPORATE SPIN-OFF RULE • ALLOWED • A big company creates small units in order to simplify CB process. • The transformation of the companies was a management prerogative and business judgement must be governed by the policy of good faith. STOP LOCK GATE CLAUSE (Non chargeability clause) • This is the clause in the CBA where any increase in wages or benefits in the CBA are exclusive of other benefits that may later on be decreed by the government, shall also be granted to the workers • CBA benefits are exclusive to other benefits decreed later on by the government. It cannot be charged in the future. XPN: Unless the CBA provides for a credibility clause (that it can be credited against future benefits decreed by the government)

Q: If there was incumbent bargaining agent who was responsible for the CBA, approved by the parties, but later on, there was a change in the bargaining agent under the Substitutionary Doctrine. May a new bargaining agent initiate process where the life of CBA is shortened? A: Yes. Because the CBA is in nature, a contract in personam. •

An APPROPRIATE BARGAINING UNIT means the process of grouping, classifying workers or employees according to their employment status, qualifications, salaries, terms and conditions.

4 WAY TEST IN DETERMINING APPROPRIATE CB UNIT (Factors of determination) 1. Globe Election Doctrine - The express will or desire of employees test - Election conducted to determine the appropriate bargaining unit 2.

Community or mutuality of interests test

- There should be a similarity of interest - Same qualifications, salaries and working conditions - What is important is they have the same substantial interest. ex. Sales agents of beer in L,V.M. Should agents in Luzon have diff. bargaining unit from Visayas and Mindanao? – NO. They have same qualifications, experience and bracket of salaries.


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Labrel Reviewer Poquiz

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