Labor Relations - Hanniyah

LabRel Lectures: Transcribed by: Hanniyah Sevilla
LABREL 06.27.07 If it should happen that Congress abrogates or repeals the entire book 5 of the Labor Code, and that should be challenged by the Labor Movement in the SC as being unconstitutional, what will be the competing rights? SC has to balance the plenary powers of the legislature, on the other hand there is a right to self organization which is in the Constitution. And you say that the repeal of the law is unconstitutional because the right to self organization is in the Constitution. As students of the law, it is not only important to know which right to exert, but what countervailing right will be asserted over and above that right. It is my submission that just because the right to self organization is in the constitution, does not make it a constitutional right in the same level as the bill of rights. In other words, when that happens, what is bound to be more superior is the plenary rights of the Congress. The remedy will not be judicial, but political. If that is the case, then the right to self organization is not covered by Section 8, Article 3 of the Consti : "The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged." Because the right to self organization as expressed in Article 243 [of the Labor Code] is the right to form, join or assist in labor organizations. "Union" therefore as used in Sec. 8, Art. III is generic in nature. Just because you are employed and form an organization you can call it a union. But when you form a LABOR UNION, it is not the composition that makes it a labor union, it is the purpose. For the purpose of obtaining better terms and conditions of work. In other words, it must end up as one of its primary aims, to arrive at a collective bargaining agreement, that determines basically what are the terms and conditions. Who are the actors in the right to self organization: the personalities who assert the right, and the personalities over whom you assert the right. Under Art. 212, you have definitions. There is a definition of an ER: " any person acting in the interest of an employer, directly or indirectly. The term shall not include any labor organization or any of its officers or agents except when acting as employer. " You take a look at the Implementing RulesR1, Sec. 1: An employer refers to any person or entity who employs the services of others, one for whom employees work and who pays their wages or salaries. An employer includes any person directly or indirectly acting in the interest of an employer. It shall also refer to the enterprise where a labor organization operates or seeks to operate. Note: The first sentence and the third sentence are embellishment of DOLE. That has questionable validity, but as we know Implementing Rules are presumed regular until they are overturned. But as you see that it is a lose definition. What is important to remember in the case of an ER is that an ER can be a natural person or a juridical person . We know in our Persons and Family Relations that in order to be a natural person all we have to be is to be born. If you are an artificial/juridical person, you become a person by virtue of a general enabling law., i.e. the Corporation Code. You comply with the requirements and register with the SEC and then you become a juridical person. Another way is you register with the Cooperatives Dev't Authority, then you become a cooperative. You have rights and obligations separate and distinct from the rights and obligations of the constituent members. So too with a labor organization, the EEs bond together and write their articles and by laws and register with DOLE and become a juridical person. Why am I emphasizing this? So that you will know that whenever there is an artificial person is involved, there is always a natural person. It cannot act by itself, that is why as a consequence, there is a managerial employee. A managerial ee under Art. 212(m) is one who is vested with the powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees . Whenever you have an ER who is a juridical person, there MUST BE a managerial ee because an artificial person cannot act by itself . It is a person by a fiction of law. What is a person? To be a person is to be a subject of rights and obligations.. only a person is subject of rights and obligations. Your personhood does not disappear by the loss of reason, because here you are talking about capacity to act. Tenderness of age only limits your capacity to act, but you do not cease to be a person. "I think that I shall never see, a poem as lovely as a tree... " They embellish the tree as if it has a right to exist more superior than the people, does that have legal foundation? That does not have legal foundation. Imbue the tree with personality to have a right. This is very important because you are about to become lawyers, and you are not pedestrians. That should click in your mind when somebody attributes personality when there is no basis in law. The moment we bring in management, we right away bring in classification. We are classifying employees, and that is not the first time we are classifying ees. Way back in LABSTAN you already classified ees, in terms of hours of work, terms of pay, holidays. Is there managerial ees? Is there a classification of rank and file?
What is the difference between a managerial ee in Art. 83 and a managerial ee in Art. 212(m)? The defn in Labstan is much much broader, because there are two kinds of managerial ee: MANAGERIAL EE PROPERY, who is one who lays down policies, one who supervises, one who has the effective power to recommend; and also SECONDARY MANAGERIAL EE, who are members of the managerial staff. Under LABREL, the defn is narrower.. lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees. Gone is the function of effective recommending. That function now falls under SUPERVISORY EE, which is separate and distinct from Managerial EE. Before, in Labor Standards, supervisory ee is included as a managerial ee. That is why supervisory ee under Labstan is not entitled to overtime, but can they join a labor organization? Yes, they can because Art. 212(m) says: Supervisory employees are those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. So they can form unions. There is a distinction.. i hope you stick to that distinction. Do not be fooled by the discussion of Justice Mendoza in United Pepsi Cola. If you have read the case, J. Mendoza discusses 3 kinds of managerial ees. What is he doing?! There are no 3 kinds of managerial ees in the LC. No commentator need quote that because it is irrelevant. What makes you a managerial ee is not the title, but your actual functions. Do you lay down policies, lay down policies, fire, hire, promote, demote? If you have that power, no matter what your title is, then you are a managerial employee. That is precisely the issue brought up in NATU Republic Planters Bank Supervisors Chapter vs. Sec.(239 SCRA 54 . So they filed a certificatio of election among the supervisors of the bank. And the supervisors union claimed that the managers of the bank must be allowed to join unions, because even if their titles are managers, assistant branch managers, they are not managers. They do not lay down policies, they wait for policies from the main office. They do not have the power to hire, fire, demote, promote.. So what are they? According to the LC, they are supervisory ees. Ruling of the SC: They are not managers, however, they are confidential ees. And confidential ees are situated in the same level as managerial ees. Therefore, they cannot join any union. This is where the SC creates a new category of ees for purposes of LABREL, because confidential ee you cannot find it in LC, you can only find it in jurisprudence. And this is where the SC laid down the doctrine of necessary implication. Even though the law does not include these people from the prohibition, because they are in the same situation, necessarily therefore, the prohibition is carried on to that effect. That is logically included in the law is necessarily included in the prohibition of the law. [Note: In the case of Ligez, the SC made a categorical exception in this doctrine of necessary implication.] So, if you are a confidential ee, you hold data and knowledge peculiar to the advantage of the ER. And you can use it to the advantage of the Union. The power to destroy that which you are working to protect. If you are management, you are supposed to act for the er because the er cannot act on itself. If you are member of the union, you have the power to act against the principal whom you are supposed to protect. You cannot hop with the rabbits and bark with the dogs. Management is expected to act in favor of the principal, and at the expense of the union, if you are allowed to join. You cannot serve two masters at the same time. There is a conflict of interest, that is why you are not allowed to join a union. Is it in Art. 212? It is not found in the LC. And yet the SC says, by necessary implication, confidential ees are prohibited from joining unions. NATU VS. SEC FX: On 17 March 1989, NATU filed a petition for certification election to determine the exclusive bargaining representative of respondent Bank's employees occupying supervisory positions. On 24 April 1989, the Bank moved to dismiss the petition on the ground that the supposed supervisory employees were actually managerial and/or confidential employees thus ineligible to join, assist or form a union, and that the petition lacked the 20% signatory requirement under the Labor Code. NATU submits that an analysis of the decision of public respondent readily yields certain flaws that result in erroneous conclusions. Firstly, a branch does not enjoy relative autonomy precisely because it is treated as one unit with the head office and has to comply with uniform policies and guidelines set by the bank itself. Neither is there evidence showing that subject employees are vested with powers or prerogatives to hire, transfer, suspend, lay off, recall, discharge, assign or discipline employees. Issue: whether the Department Managers, Assistant Managers, Branch Managers/OICs, Cashiers and Controllers of respondent Bank are managerial and/or confidential employees hence ineligible to join or assist the union of petitioner Held: Yes. The grave abuse of discretion committed by public respondent is at once apparent. Art. 212, par. (m), of the Labor Code is explicit. A managerial employee is (a) one who is vested with powers or prerogatives to lay down and execute management policies, or to hire, transfer, suspend, lay off, recall, discharge, assign or discipline employees; or (b) one who is vested with both powers or prerogatives. A supervisory employee is different from a managerial employee in the
sense that the supervisory employee, in the interest of the employer, effectively recommends such managerial actions, if the exercise of such managerial authority is not routinary in nature but requires the use of independent judgment. Branch Managers, Cashiers and Controllers of respondent Bank are not managerial employees but supervisory employees. The finding of public respondent that bank policies are laid down and/or executed through the collective action of these employees is simply erroneous. His discussion on the division of their duties and responsibilities does not logically lead to the conclusion that they are managerial employees, as the term is defined in Art. 212, par. (m). Among the general duties and responsibilities of a Branch Manager is "[t]o discharge his duties and authority with a high sense of responsibility and integrity and shall at all times be guided by prudence like a good father of the family, and sound judgment in accordance with and within the limitations of the policy/policies promulgated by the Board of Directors and implemented by the Management until suspended, superseded, revoked or modified. Similarly, the job summary of a Controller states: "Supervises the Accounting Unit of the branch; sees to the compliance by the Branch with established procedures, policies, rules and regulations of the Bank and external supervising authorities; sees to the strict implementation of control procedures .The job description of a Cashier does not mention any authority on his part to lay down policies, either. On the basis of the foregoing evidence, it is clear that subject employees do not participate in policy-making but are given approved and established policies to execute and standard practices to observe, leaving little or no discretion at all whether to implement said policies or not. It is the nature of the employee's functions, and not the nomenclature or title given to his job, which determines whether he has rank-and-file, supervisory or managerial status. As regards the other claim of respondent Bank that Branch Managers/OICs, Cashiers and Controllers are confidential employees, having control, custody and/or access to confidential matters, e.g., the branch's cash position, statements of financial condition, vault combination, cash codes for telegraphic transfers, demand drafts and other negotiable instruments, 23 pursuant to Sec. 1166.4 of the Central Bank Manual regarding joint custody this claim is not even disputed by petitioner. A confidential employee is one entrusted with confidence on delicate matters, or with the custody, handling, or care and protection of the employer's property. While Art. 245 of the Labor Code singles out managerial employees as ineligible to join, assist or form any labor organization, under the doctrine of necessary implication, confidential employees are similarly disqualified. This doctrine states that what is implied in a statute is as much a part thereof as that which is expressed. In applying the doctrine of necessary implication, we took into consideration the rationale behind the disqualification of managerial employees expressed in Bulletin Publishing Corporation v. Sanchez, 28 thus: ". . . if these managerial employees would belong to or be affiliated with a Union, the latter might not be assured of their loyalty to the Union in view of evident conflict of interests. The Union can also become company-dominated with the presence of managerial employees in Union membership." Stated differently, in the collective bargaining process, managerial employees are supposed to be on the side of the employer, to act as its representatives, and to see to it that its interests are well protected. The employer is not assured of such protection if these employees themselves are union members. Collective bargaining in such a situation can become one-sided. It is the same reason that impelled this Court to consider the position of confidential employees as included in the disqualification found in Art. 245 as if the disqualification of confidential employees were written in the provision. If confidential employees could unionize in order to bargain for advantages for themselves, then they could be governed by their own motives rather than the interest of the employers. Moreover, unionization of confidential employees for the purpose of collective bargaining would mean the extension of the law to persons or individuals who are supposed to act "in the interest of" the employers. It is not farfetched that in the course of collective bargaining, they might jeopardize that interest which they are duty-bound to protect. In fine, only the Branch Managers/OICs, Cashiers and Controllers of respondent Bank, being confidential employees, are disqualified from joining or assisting petitioner Union, or joining, assisting or forming any other labor organization. But this ruling should be understood to apply only to the present case based on the evidence of the parties, as well as to those similarly situated. It should not be understood in any way to apply to banks in general. When do you become a confidential ee? Is any confidential information sufficient to make you one? UIC-- Part of the faculty, (with faculty status) formed a union. The administration opposed the inclusion of student councilors because they possessed confidential information. They might reveal confidential information. The union said what confidential info? Confidential info of students -- 3rd parties. It is not confidential info about management. So what kind of confidential information must it be? It must be in SUGBUANON RURAL BANK VS. LAGUESMA 324 SCRA 425 (2000) Facts: SRBI is a duly registered banking instutituion. Private respondent APSOTEU-TCP is a legitimate labor organization. Priv. Respondent filed a petition for certification of election of the supervisory ee of SRBI. SRBI filed a motion to dismiss the union's petiton on two grounds: 1) the members of private respondent were in fact managerial/confidential ees, and 2) there was a violation of unions. Issue: W/N members of the union are managerial ee or highly-placed confidential ees. Held: No.
Petitioner vehemently argues that the functions and responsibilities of the employees involved constitute the "very core of the bank's business, lending of money to clients and borrowers, evaluating their capacity to pay, approving the loan and its amount, scheduling the terms of repayment, and endorsing delinquent accounts to counsel for collection citing Tabacalera Insurance Co vs. NLRC. In Tabacalera, we sustained the classification of a credit and collection supervisor by management as a managerial/supervisory personnel. But in that case, the credit and collection supervisor "had the power to recommend the hiring and appointment of his subordinates, as well as the power to recommend any promotion and/or increase." In the present case, however, petitioner failed to show that the employees in question were vested with similar powers. At best they only had recommendatory powers subject to evaluation, review, and final decision by the bank's management. The job description forms submitted by petitioner clearly show that the union members in question may not transfer, suspend, lay-off, recall, discharge, assign, or discipline employees. Moreover, the forms also do not show that the Cashiers, Accountants, and Acting Chiefs of the loans Department formulate and execute management policies which are normally expected of management officers. Now may the said bank personnel be deemed confidential employees? Confidential employees are those who (1) assist or act in a confidential capacity, in regard (2) to persons who formulate, determine, and effectuate management policies [specifically in the field of labor relations. The two criteria are cumulative, and both must be met if an employee is to be considered a confidential employee-that is, the confidential relationship must exist between the employee and his superior officer; and that officer must handle the prescribed responsibilities relating to labor relations. The doctrine of necessary implication extends the prohibition of managerial ees to join union to include confidential ees, It must be stressed, however, that when the employee does not have access to confidential labor relations information, there is no legal prohibition against confidential employees from forming, assisting, or joining a union. Petitioner's explanation, however, does not state who among the employees has access to information specifically relating to its labor relations policies. Even Cashier Patricia Maluya, who serves as the secretary of the bank's Board of Directors may not be so classified. True, the board of directors is responsible for corporate policies, the exercise of corporate powers, and the general management of the business and affairs of the corporation. As secretary of the bank's governing body, Patricia Maluya serves the bank's management, but could not be deemed to have access to confidential information specifically relating to SRBI's labor relations policies, absent a clear showing on this matter. Thus, while petitioner's explanation confirms the regular duties of the concerned employees, it shows nothing about any duties specifically connected to labor relations. There is this case of De la Salle vs. Lacuesma (254 SCRA 141, 1998 ) - Medical College of DLSU, rank and file union and they have a supervisors union. Now, both are separate union in accordance with law. Now, these chapters affiliate with one federation. (A federation is a national union with different unions at the work place level). Is that allowed? A chapter of the rank and file and a chapter of the supervisory union belong to one labor federation. Isn't that an indirect violation of Art. 245 of the LC? SC says that Art. 245 must be interpreted strictly against the curtailing of the right against self organization. Exceptions to the right of self organization is not looked upon with favor by the court, because the court is pro-freedom. Therefore, any provision of law which curtails that right is interpreted strictly. Having said that, the SC stated that rank and file ee labor organizations and supervisor ee unions MAY affiliate with one and the same federation if and when the requirements are met: 1) the supervisors do not directly supervise the rank and file ee -- here, the rank and file were non teaching staff, the supervisors were teaching staffs. so they do not supervise the rank and file. 2) the federation does not play an active role in the collective bargaining negotiation. In other words, each of these labor organizations in the different work places handle their own CBA; they do not request help from the federation to handle their negotiation. In that instance, their affiliation with the federation is merely organizational; supporting not directly in the mechanics of the exercise of the rights. How about minors? In your labstan, what is the youngest age you can be employed? 15 diba, provided that it is not a hazardous work place. A hazardous workplace involves underground minings, involving chemicals, etc. You can be employed if you are less than 15 if you are under the direct supervision of your parents and granted a work permit by the DOLE, and your education is guaranteed unhampered and you are not made to pose as models in advertisements involving tabacco, alcohol and violence. Lab Rel 06.28.07 Are foreigners allowed to form unions? Take a look at Article 269 and 270 ART. 270. Regulation of foreign assistance. - (a) No foreign individual, organization or entity may give any donations, grants or other forms of assistance, in cash or in kind, directly or indirectly, to any labor organization, group of workers or any auxiliary thereof, such as cooperatives, credit unions and institutions engaged in research, education or communication, in relation to trade union activities, without prior permission by the Secretary of Labor.
"Trade union activities" shall mean: (1) organization, formation and administration of labor organization; (2) negotiation and administration of collective bargaining agreements; (3) all forms of concerted union action; (4) organizing, managing, or assisting union conventions, meetings, rallies, referenda, teach-ins, seminars, conferences and institutes; (5) any form of participation or involvement in representation proceedings, representation elections, consent elections, union elections; and (6) other activities or actions analogous to the foregoing. (b) This prohibition shall equally apply to foreign donations, grants or other forms of assistance, in cash or in kind, given directly or indirectly to any employer or employers organization to support any activity or activities affecting trade unions. (c) The Secretary of Labor shall promulgate rules and regulations to regulate and control the giving and receiving of such donations, grants, or other forms of assistance, including the mandatory reporting of the amounts of the donations or grants, the specific recipients thereof, the projects or activities proposed to be supported, and their duration. ART. 269. Prohibition against aliens; exceptions . - All aliens, natural or juridical, as well as foreign organizations are strictly prohibited from engaging directly or indirectly in all forms of trade union activities without prejudice to normal contacts between Philippine labor unions and recognized international labor centers: Provided, however, That aliens working in the country with valid permits issued by the Department of Labor and Employment, may exercise the right to self-organization and join or assist labor organizations of their own choosing for purposes of collective bargaining: Provided, further, That said aliens are nationals of a country which grants the same or similar rights to Filipino workers. So Article 269 is the exception to the prohibition against aliens engaging in any trade union activity. There is this reciprocity rule. How about minors? Are they allowed? Yes, under Article 3 of the Child and Youth Welfare Act. If there is no Child and Youth Welfare Act, are minors still allowed to form unions? Does the LC put a limit or age requirement to the right of self organization? The right to self organization is found in Article 243. "ART. 243. Coverage and employees right to self-organization . - All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions, whether operating for profit or not, shall have the right to self-organization and to form, join, or assist labor organizations of their own choosing for purposes of collective bargaining . Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers may form labor organizations for their mutual aid and protection." Is there an age requirement there? No. Even without Article 3 of the Child and Youth Welfare Code, minors employed can exercise their right to self organization. How about domestics?But if you form an association for mutual aid and protection which is in the 2nd sentence of Article 243, that is not self organization. If you take a look at Article 212 (g) there you have the definition of a labor organization - " any union or association of employees which exists in whole or in part for the purpose of collective bargaining or of dealing with employers concerning terms and conditions of employment." A labor organization is defined by its purpose, not by its membership. And its purpose must be for collective bargaining. The right of self organization is peculiarly for the right of collective bargaining. This is precisely the first sentence of Article 243. How about the second sentence which you say is exercisable by domestics? Are they allowed to collectively bargain.. those ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers? There is no right to self organization.. their organization is for mutual aid and protection. Give an example of mutual aid and protection: a health fund - you contribute for a health fund, like mortuary account. So we go back, are domestics allowed to self organization? No, because they are not included in the enumeration in Article 243 which provides, "All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions, x x x". Where are they employed? In a household. Review labstan definition of domestics:
Art. 141 : "Domestic or household service" shall mean service in the employers home which is usually necessary or desirable for the maintenance and enjoyment thereof and includes ministering to the personal comfort and convenience of the members of the employers household, including services of family drivers. A household is not enumerated in the first sentence of Article 143. That is why you cannot exercise Article 129 with respect to visitorial powers of the DOLE with respect to housemaids because a home is not classified as a work place. So that is the reason why domestics are not allowed to exercise the right to self organization. Besides, it would be absurd. They picket your house, yet under the LC, you are mandated to give them food and shelter. So pag gabi, uli sila sa inyo to eat and sleep and then picket again in the morning. That is the reason behind the reason. I hope by now you are able to distinguish. If its a legal question, you cite the law. But if you are asked WHY IS THIS THE LAW, then you do not cite the law. There are a few questions asked like that in the Bar. If you are a single employee in the workplace, can you form a union? First, the LC does not put a numerical minimum for the formation of labor. You can search high and low, there is no minimum number required. And [second] you have this in Article 243 " ALL persons employed x x x", it does not say "except if you are a lone employee." Note: There are two ways of forming a union: 1) By organizing yourself, drawing up by laws, articles and file them with DOLE. 2) There is the system of affiliation. There is already an existing union, a federation. Then you affiliate yourself with that federation. You agree among yourselves that you affiliate with the federation. That is how a single employee exercises his right to self organization. The federation will now represent her/him with the er. Numbers neither inhibit nor promote the right to self organization. It is neutral. You can exercise this right whether you are one or one thousand. Actors in the public sector.. Take a look at Executive Order 180. EO 180 has the force of law, it is not just an executive order because it was promulgated when Corazono Aquino had legislative powers. There are different classifications of EEs here: HIGH LEVEL EES MEMBERS OF AFP INCLUDING POLICEMEN, FIREMEN, JAIL GUARDS RANK AND FILE EE THE first two cannot form unions. Only the rank and file can form an employees organization, not a labor organization. Section 2: All government employees can form, join or assist employees' organizations of their own choosing for the furtherance and protection of their interests. They can also form, in conjunction with appropriate government authorities, labor-management committees, works councils and other forms of workers' participation schemes to achieve the same objectives. An employees association is not the same as a labor union. That is why precisely there is a separate law. They are not included in ART. 244. Right of employees in the public service. - Employees of government corporations established under the Corporation Code shall have the right to organize and to bargain collectively with their respective employers. All other employees in the civil service shall have the right to form associations for purposes not contrary to law. Who are these government corporations? Those without original charters. Then all other ees in the civil service shall form associations for purposes not contrary to law. What are those purposes not contrary to law? EO 180 Sec. 2 says "x x x for the furtherance and protection of their interests" How about collective bargaining, is that in accordance with law? No, because renumeration in public service is not determined by contract. It is determined by law. You cannot change it by agreement. So when the constitution says in Art. 3, Sec. 8, unions there therefore is a generic term. It involves unions for the purpose of collective bargaining and also those organizations not for collective bargaining but for furtherance of interest or for mutual aid and protection. PROHIBITION ABSOLUTE PROHIBITION (reason: conflict of interest) Absolute prohibition (by necessary implication) PRIVATE SECTOR MANAGEERIAL EMPLOYEE CONFIDENTIAL EMPLOYEE RANK AND FILE PROHIBITION (employees association) ABSOLUTE PROHIBITION (reason: conflict of interest) ABSOLUTE PROHIBITION May form employees PUBLIC HIGH LEVEL EMPLOYEE CONFIDENTIAL EMPLOYEE RANK AND FILE
7
association ABSOLUTE PROHIBITION (reason: some commentators say that they bear arms, they might attack the government they are trying to defend. Accdg. to Fr. Gus RA 6715 introduced the amendment that security guards can form unions, hence, negating the above reason. The reason clearly is that these organizations cannot stand any other organization/association. If you are a soldier, your loyalty is to your platoon. There can be no other organization that will mediate their loyalty.
QUALIFIED PROHIBITION CANNOT JOIN UNION OF RANK AND FILE
SUPERVISORY EE
MEMBERS OF AFP, PNP, FIREMEN, JAILGUARDS
So when can you exercise your right to self organization? Can probationary workers, when their engagement is still conditioned upon meeting the standards of their er, which have been made known to them at the inception of their relation, can they exercise their right to self organization? ARTICLE 277(C) states Any employee, whether employed for a definite period or not, shall, beginning on his first day of service, be considered as an employee for purposes of membership in any labor union. Later on we will find out that this provision is not exact. You go to the Supreme Court because you have the right, there is no union of the rank and file, there is only union of the supervisory ee, makapapugos ba ka? 277 c says that I can be a member of the union from the first day of work! Dili na tama. IF the union is within your bargaining unit, then you can, but if it is not, then you cannot. Note: That the classification of employees is always with respect to a certain legal principle, i.e. hours of work, tenure. The problem is you are given a classification but you are asked something else. For example, casual, probationary, etc, that is classification according to tenure. But you are asked right of self organization. So that is red herring. So know the basis of the classification. LABREL O7.04.07 We have seen the various actors in the right to S.O. both in the public and private sectors. We have seen the amendment of RA 6715 which granted, by implication, the right to s.o. of the otherwise excluded security guards. RA 6715 likewise created a new category of ees, the supervisors, taking it out of managerial ees, which before were not allowed specifically to join union. In the MERALCO vs. SEC case, the security guards, if you were in a supervisory position, you join the union for the supervisors. If you are rank and file, you join the union of the rank and file. But you can now exercise the right to s.o. For most set ups, the security guards cannot join the unions that are found in the clien that they are serving. This is to safeguard the health and safety of the personnel and faculty of [their] clients. It means that if they are supplied by an agency, they do not have er-ee relationships with clients, so therefore they cannot join the union of their clients. However, if their agency, who is considered legally their er, if it has a union, that is the union that they can join. So it is not a violation of their right if they cannot join the union of the rank and file of their clients because there must be an existence of an er-ee relationship before you can join a [labor] union. The only union you can join even if there is no er-ee relationship is a worker's union. That is the second sentence of Art. 243 -- "ambulents, itinerants, x x x for mutual aid and protection". Lets take a look at the labor organization. Take note that most of labor commentators do not emphasize this point: THAT LABOR ORGANIZATIONS (LO) EXERCISE THE RIGHT TO SELF ORGANIZATION IN A SECONDARY SENSE. The law grants to the indiv. worker the right to exercise s.o. Right to s.o. is the aggrupation of workers join together for the purpose of obtaining better terms and conditions of work thru collective bargaining. We are looking at a LO whose purpose is collective bargaining, not just mutual aid and protection. Chief Justice Fernando says that the LO is the haven of refuge of the ordinary, lowly worker. It becomes a seed of the right to self organization. Later on, when we find out in collective bargaining that a LO has union security clause in its constitution, it can force all those in the bargaining unit to be part of the union. It can compel the individual. The reason for that is: the laborer, standing by himself is weak, the laborer joined together is strong. In order to give labor equal footing with mgt. it is given this coercive power to congregate laborers. That is why it can force laborers to become members. Therefore, it can now, in secondary right, exercise s.o.
It is therefore important that we take a look at this landmark case of SALUNGA vs. CIR (September 27, 1967) In this case, the SC laid down the rules when the right to s.o. of the union comes in conflict with the right of s.o. of the workers. Just briefly: Mr. Salunga used to be a member of a local union of San Miguel Corporation (SMB). At first he was just an ordinary member, but through time, he became very critical of the acts of the officers. He kept on criticizing. So the officers challenged him to resign if he was really dissatisfied. So he resigned, he wrote a letter to the union officers. Shortly after he resigned, the mgr. of SMB called him informing him of the Union Security clause, and as a condition for continued employment, you have to be a member of the union. If you cease to become a member of the union, the union can ask the er to sever your employment. So he wrote a second letter. The second letter was taking back his letter of resignation. The next step that the union took was to go to mgt. demanding that Salunga be terminated. Mgt. says I have no choice, Mr. Salunga, you have to be terminated. Salunga filed an illegal dismissal complaint. He impleaded SMB and the Union. The ruling of the SC: The union, like any other organization, should be free from any interference from the outside, either from er or the gov't, as to its internal policies of membership. Policy of a free labor movement enunciated in the LC dictates that the gov't should not interfere in the union membership. That is found in Art. 211(B). So these are all policy determinations which dictate that the Gov't should have a hands-off policy with respect to unions. So that is the preliminary pronouncement of SC. BUT when the union enters into a CBA with management, and that CBA contains a union security clause that requires continued membership in the union as a continued employment [and] if that [condition] is not fulfilled, then the union has power to compel management to terminate the ee, then, according to the SC, the union loses part of its freedom to exercise the right to s.o. The moment that happens, membership in the union becomes replete with public policy. The court can now look at how the union accepts or rejects those who apply as members. Why? Because they have power now to grant work or not. Their power has now overached into your livelihood. Now, third pronouncement of the SC. If that is the case that it is now a matter of public policy, the union cannot just reject union membership unless it is based on SUBSTANTIAL AND VERY SERIOUS grounds. Then the SC discussed the facts: When Salunga filed his [1st] letter [of resignation], it was well within the union's prerogative to accept it if it so desires. When Salunga withdrew his letter of resignation, that was now an application to become a member again of the Union. In that application, the union was not really as free to reject, except upon serious and substantial reasons/grounds. The criticizing of the union is not a serious and substantial ground. Therefore, the union cannot reject Salunga's application. Order: Salunga is reinstated and it is the Union who must pay the full backwages of petitioner. SALUNGA VS. CIR Facts: On Oct. 1959, the Union entered into a CBA with SMB which included a union security clause. The CBA provided as a condition of employment, membership with the Union. Salunga had been an employee of San Miguel since 1948. He was a member of the Union NBAILP-PAFLU since 1953. However, due to some dissatisfaction petitioner had with the union officers, he tendered his resignation from the union on 1961. The union, upon acceptance of the petitioner's resignation, forwarded the same to SMB and made a request for immediate implementation of the CBA agreement in Sec. 3. The Company having informed him that his aforementioned resignation would result in the termination of his employment, in view of said section, petitioner wrote to the Union, on August 31, 1961, a letter withdrawing or revoking his resignation and advising the Union to continue deducting his monthly union dues. He, moreover, furnished a copy of this communication to the Company. The latter, in, turn, notified the Union of the receipt of said copy and that "in view thereof, we shall not take any action on this case and shall consider Mr. Francisco Salunga still a member of your union and continue deducting his union due." On September 8, 1961, the Union told the Company that petitioner's membership could not be reinstated and insisted on his separation from the service. Consequently, the Company dismissed petitioner, forcing the latter to file an illegal dismissal case against the former. Held: Although, generally, a state may not compel ordinary voluntary associations to admit thereto any given individual, because membership therein may be accorded or withheld as a matter of privilege, the rule is qualified in respect of labor unions holding a monopoly in the supply of labor, either in a given locality, or as regards a particular employer with which it has a closed-shop agreement. The reason is that the closed shop and the union shop cause the admission requirements of trade unions to become affected with the public interest. Likewise, a closed shop, a union shop, or maintenance of membership clauses cause the administration of discipline by unions to be affected with the public interest. Consequently, it is well settled that such unions are not entitled to arbitrarily exclude qualified applicants for membership, and closedshop provision would not justify the employer in discharging, or a union in insisting upon the discharge of, an employee whom the union thus refuses to admit to membership, without any reasonable ground therefor. Needless to say, if said unions may be compelled to admit new members, who have the requisite qualifications, with more reason may the law and the courts exercise the coercive power when the employee involved is a long standing union member, who, owing to provocations of union officers, was impelled to tender his resignation,
which he forthwith withdrew or revoked. Surely, he may, at least, invoke the rights of those who seek admission for the first time, and can not arbitrarily be denied readmission. This is a very interesting case because many commentators never bother with the fact that the union has the right to self organization. You must not forget that it is not just a natural person who has freedom of association. An organization has freedom to associate because it is also a person. I am a student, I have a right to enroll! But you forget that the school, being a person, also has the right to choose. Consequently, if a student is allowed to enroll for a semester, he must be given a reasonable chance to complete his degree, unless a supervening cause intervenes, i.e. academic deficiency. But technically speaking, the school has the right whom to teach, who to teach, what to teach. That is the freedom of the school raised to the level of academic freedom. So make sure that you basically recognize this right [of unions], because once there is conflict between the right of s.o. of the members and the right of s.o. of the union, it is almost always, it is the individual who is given priority by the courts, esp. by the SC. Why? Because the labor organization exists for the individual, the protection is ultimately for the individual. case: VICTORIANO VS. ELIZALDE WORKERS ASSOCIATION (Chief Justice Fernando) Normally, the bar question would say "Against what forces is the individual worker supposed to be protected?" There are at least three forces against which the individual worker must be protected from: 1) He should be protected against CAPITAL, against his EMPLOYER. Because an er, left to himself without proper control, can exploit the ordinary worker. 2) He must be protected from GOVERNMENT, because gov't is powerful. And sometimes if it is not checked, it will tend to impose its will upon the lowly worker. 3) He must be pretected from his UNION, because as time goes, it [union] assumes its own interest. And that interest might be in conflict with the ordinary, lowly interest of a single, solitary employee. This was the most unkindest cut of all; For when the noble Caesar saw him stab, Ingratitude, more strong than traitors' arms, Quite vanquish'd him: then burst his mighty heart; - Shakespeare Article 234 is the process that is described in the red letter of the law for the registration of a labor organization. Take note that in that process, there must be an organizational meeting that includes all the members of the union, and they must agree to the formation and this must be documented. ART. 234. Requirements of registration. - Any applicant labor organization, association or group of unions or workers shall acquire legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor organizations upon issuance of the certificate of registration based on the following requirements. (a) Fifty pesos (P50.00) registration fee; (b) The names of its officers, their addresses, the principal address of the labor organization, the minutes of the organizational meetings and the list of the workers who participated in such meetings ; (c) The names of all its members comprising at least twenty percent (20%) of all the employees in the bargaining unit where it seeks to operate; (As amended by Executive Order No. 111, December 24, 1986). (d) If the applicant union has been in existence for one or more years, copies of its annual financial reports; and (e) Four (4) copies of the constitution and by-laws of the applicant union, minutes of its adoption or ratification, and the list of the members who participated in it. Now, let us go to the Implementing Rules (IRR). There is another way of forming a union, and that is by affiliation. Take a look at Rule III, Sec. 6. The rules that were formerly in place before this new Dept. Order 40-03 1 had a special rule in registering an affiliation of a chartered local. Now it is just found together with rule III. You report an affiliation. Who reports an affiliation? The federation says that it has affiliated a certain local. What are the requirements? Sec. 7 Sec. 7. Requirements of affiliation 0 the report of affiliation of independently registered labor unions with a federation or national union shall be accompanied by the following documents:
1
(Note: Please see website of DOLE, I think they have new issuances amending IRR of Book V. The latest one is 2005, amending Sec. 4 and 5 Rule IV, Rule VII of Book V)
10
a) b) c) d)
e) f) Whose general membership is this? The federation or the local? It is the local.
resolution of the labor unions board of directors approving the affiliation minutes of the general membership meeting approving the affiliation; the total number of members comprising the labor union and the names of members who approved the affiliation; the certificate of affiliation issued by the federation in favor of the independently registered labor union; and written notice to the employer concerned if the affiliating union is the incumbent bargaining agent.
What is a local? The opposite of that is not foreign (herher). The opposite of than is federation. The local is labor organization on the workplace level (CF: Rule 1, Sec. 1(i)) So, independent union and a chartered local. Now, if you are a union at the workplace level and you have an independent registration by virtue of Art. 234, can you still affiliate with a federation? A federation is an aggrupation of different unions on the workplace level, tenor of which must at least be the exclusive bargaining agent of that particular er. The answer is yes, you can still affiliate with the federation. In which case, actually, you have potentially two personalities: You have your own independent registration and you have your registration of the federation. If you are expelled from the federation, you are still a union/labor organization organized under the LC. But if you are not an independently registered union, if you are dismissed, or severed or resigned from the federation, you must immediately affiliate with another federation, otherwise you do not have personality. Now, we go back to Justice Fernando. He says that the local that affiliated with the federation is the principal and the federation is the agent. The employees that are members of the union are the true principals, the union is their agent. But the local, with respect to the federation, is the principal, and the federation is the agent. That is why even if the by-laws and the constitution of the federation prohibit dissafiliation except towards the end of the CBA, the local can still disaffiliate, because the contract of principal and agent may be severed anytime, even if there is consideration. Agency can be terminated anytime. This is because this [contract] is based on confidence. To show you that the organization, like the affiliated local, there is this particular provision in Rule 4, Book 5, Sec. 8 --Effect of Registration whether it be independent registration under Art. 234 or registration by affiliation. "Sec. 8: The labor union or worker's association shall be deemed registered and vested with legal personality from the time of the date of the issuance of a certificate of registration or certificate of affiliation x x x Such legal personality may be questioned only through an independent petitition for x x x and not by way of collateral attack x x x " So, personality of a labor organization cannot be attacked collaterally. When a union petitions for election to be chosen by the workers, it impleads the ER. The ER answers, there should be no election because there is no union, it has no personality. So for the purpose of adjudication of rendering a union a non person, there must be a principal main action, you cannot attack it collaterally. July 5, 2007 Let us go to the definition of labor organization. Let us take the red letter of the law. Art. 212 (g) that is the primary definition of a union for collective bargaining. That is only present in the private sector. Art. 212 (g) "Labor organization" means any union or association of employees which exists in whole or in part for the purpose of collective bargaining or of dealing with employers concerning terms and conditions of employment. Now, the next level to labor organization is legitimate labor organization. That is letter h. (h) "Legitimate labor organization" means any labor organization duly registered with the Department of Labor and Employment, and includes any branch or local thereof. Here you have 3 categories: A legitimate labor organization, and then a branch or local. Those are the terminologies of the red letter of law. Let me point out letter j. (j) "Bargaining representative" means a legitimate labor organization or any officer or agent of such organization whether or not employed by the employer. When do you become a bargaining representative if you are a labor organization? After you have been elected in a certification election and you are certified by DOLE. So now they represent the workers. That is the 3rd and highest degree for purposes of perfecting your status as a union.
11
First, you have labor organization: what is determinative of labor organization? Not membership but purpose. The purpose must include (though not exclusively) in part or in whole, to bargain with the er for better terms and employment of work, etc. The next category is a legitimate labor organization. You register? WE saw that in Art. 234 -- independent registration or by charter affiliation. The federation issues you a charter certificate, you have organizational meetings, draw constitution and by laws and together with these three you submit to the DOLE then you are now included in the roster of locals. you are now one of the locals, because legitimate labor organization includes any branch or local thereof. Let us go to the IRR. Rule 1, Sec. 1: Affiliate: Refers to an independent union affiliated with a federation/national union, or a chartered local which are subsequently granted independent registration, but did not disaffiliate from its federation x x x x So if you are an affiliate, it means that you are a local, but not just a local, you are have an independent registration under 234. After you are a legitimate labor organization, you affiliated yourself with a federation. So you have DUAL LEGAL PERSONALITY. You have the personality of your own and you have the personality of the federation. Now, let us go to Sec. 1(i)- Chartered Local: Refers to a labor organization in a private sector operationg at the enterprise level that acquired legal personality through the issuance of a charter certificate by a duly rgistered federation or national union, and reported to the Regional Office x x x So when you talk about a chartered local as opposed to the affiliate, the chartered local does not have an independent registration. It is a legitimate labor organization because it is part of a federation, and the federation is a legitimate labor organization. One of the additional requirements for the registration of a federation over and above what 234 requires, is found in Art 237. ART. 237. Additional requirements for federations or national unions . - Subject to Article 238, if the applicant for registration is a federation or a national union, it shall, in addition to the requirements of the preceding Articles, submit the following: (a) Proof of the affiliation of at least ten (10) locals or chapters , each of which must be a duly recognized collective bargaining agent in the establishment or industry in which it operates, supporting the registration of such applicant federation or national union; and (b) The names and addresses of the companies where the locals or chapters operate and the list of all the members in each company involved. Take a look at the terminologies because there are additional terminologies here. We have the local, that is in contrast with Art. 212(h). But there are at least additional terminologies, it says "Proof of the affiliation of at least 10 locals or chapters", so a local may be called a chapter, a branch as in Art. 212 or it may be called affiliate under Sec. 1(a) of the Rules, except that we know that an affiliate has dual personality; a chartered local has only one personality. And a branch we still don't know. And then it says that "each of which must be a duly recognized collective bargaining agent in the establishment or industry in which it operates". Notice that the terminologies here, which is the red letter of the law, is not the same as that being used in 212(j) because the terminology in letter (j) is bargaining representative. So Labor Organization --> Legitimate Labor Organization --> Bargaining Representative (which is broader), the other terminology is Collective Bargaining Agent. In terms of perfection of status, for purposes of collective bargaining, this is the sequence. You begin with this (labor organization), your purpose is collective bargaining. You register with the DOLE, you undergo election, then now you have the fullness of the status of a labor organization. Then you have local, branch, chapter, affiliate. Local could be affiliate, it could be chapter. But you know that the affiliate has an independent registration, then it affiliates itself. Then you have a federation or a national union. Why is it important? A federation can have various locals or chapters from different industries. What's an example? NFL (Nat'l Federation of Labor), SPFL (Southern Phil. Federation of Labor). You can have a chapter from Pfizer, which is pharmaceutical. You can have a chapter from Davao Union Cement, which is manufacturing or from SM, which is retail. But if you are a national union, the example is PLDT Union. In PLDT union, the workplace is scattered all over the Philippines. You have workers in NCR, Legaspi, Bicol, Baguio, Davao. Those are various locals, and they are connected with the National Union. Another example is PALEA --Phil. Airlines Employees Assoc. So it is just one ER with many chapters. Then you have labor centers. What's an example of this? TUCP (Trade Union Center of the Philipppines), or TUPAS (Trade Unions of the Phil. and Allied Services). These are aggrupations or associations of federations and local independents bonded together under one constitution. Their purpose is to make common stands with respect to issues in labor or labor relations, wages, etc, for purposes of consultation* with the executive -- executive meaning tripartite formulation of policy.. so groups combine, meet and agree with respect to
12
policies in labor. What are those 3 sectors? From the employees (unions), from the employer and then from government. So they meet together. That is how the tripartite wage and productivity board is composed of. For purposes of determination of minimum wage, these three meet and distill the particular policies with respect to wages. They do not assist them to collective bargaining, but their members all participate in collective bargaining situations because they are aggrupations of workers that are organized. Aside from this, how about KMU -- Kilusang Mayo Uno? Is that a labor center? KMU is not a registered labor center because it claims to be multi-sectoral. It has students, it has urban poor, federations, etc. (History about KMU and Teamsters) It is important that you know these terminologies. You go through the landscape of unions, because the generic term is unions. And unions could either be for CBA, or non-CBA. If it is for CBA, then it is covered principally by Book V. Other than Book V, you are just talking about activities more akin in the exercise of the right of association. But here (in Book V), this is protected already. Why? Because you can demand your ER sit with you and agree on terms and conditions, you draw up a contract. If the ER does not sit down with you, then the ER may be held to account for exercise of ULP (unfair labor practice). Now, where can you find that under the law that you can compel somebody to sit down with you and sign an agreement? That is only in Book V, only in ER-EE relationship that is organized. Why is that? Because the law itself makes that saw, because labor is a protected sector of our society. That is the only case that you can do that. To make that possible, there have been several decisions of the SC with respect to the nature of the representation that the l.o. exercises over its members. You have taken up Civ Pro and you know certain types of cases that are filed either in your own name or in the name of others. When it comes to money claims, you have learned in LABSTAN, arises out of a er-ee where the er underpays or fails to pay wages and other benefits. The cause of action belongs to the individual ee. If there is a union, it is the union who files the money claim. Now, does the union have to list down all its members that it represents? The SC said there is no need. The union can file a complaint, and later on if the money claim is awarded, then all the members who fit into the complaint and are similarly situated become the beneficiaries of the award. Now, supposed after the filing of the money claims complaint, the union loses its registration or its registration is cancelled. Is there need to substitute party? The SC said, NO. That is different from Civ pro. [In Civ Pro] if the party representing you loses his personality-- kintahay minor ka, imong amahan ang imong representative party. He files a case in your behalf and then he commits a crime which carries civil interdiction, then in that case, you have to substitute him. But here, the SC says, there is no need for substitution even if the registration of the union is cancelled. The case can go on, and all those union members who fit in the cause of action or similarly situated, they will be the beneficiaries of the award of the labor tribunal. Let me remind you that under the rules now, in a money complaint, the personality of a labor union cannot be questioned. Why? Because the personality of the union is not open to collateral attack. There must be a separate and distinct action for carrying out the cancellation of the union's registration. Now, suppose there is a ruling at the 1st instance of the Bureau of Labor Relations that the labor union's registration is cancelled. And it is still subject to appeal. That is not enough to curtail the union. The union is still functioning because the decision is not final and executory. Only when the decision is final and executory is the union deemed to have lost its personality, but then the case continues with the union members taking up the actions for the union. Question: Does the union have authority to compromise the money claim of its members? If it has the authority to bring an action to claim the underpayment and wage differentials of members, does it have authority to compromise the same? Answer: The union does not have authority to compromise them. It must be each member who must compromise his/her own money claim. Question: Suppose the union, in a general membership meeting of all the members of the union, they vote by more than 2/3 majority that they will compromise their money claims, does that bind everyone? Answer: That is the case of ABS-CBN Union vs. ABS-CBN. There the SC says there must be individual written authorization. So those who refused to give the individual written authorization are not covered because money claims are personal to them, and it is only them who can surrender the same. LAB REL 07.06.07 CASES ON A UNION WHEN IT BECOMES A LOCAL OR A CHAPTER OF A FEDERATION (see Annex Cases) 1. If the local is an independently registered union, which in the implementing rules is called an affiliate, it does not lose its independent legal personality. Why? Because there is no provision which divests it of its original registration. ADAMSON VS. CIR 127 SCRA 268 (1984) 2. The local becomes subject to the rules and regulations of the federation. In other words, the federation has a right to investigate and expel members of the local on the basis of the constitution and by laws of the federation. VILLAR VS INCIONG 121 SCRA 444 (1983)
13
3. The contractual relation between local and federation from the CBA point of view is that of principal and agent. A local is the principal, and the federation is the agent. And therefore, the real party in the CBA is the local, not the federation. PICEWO VS. PICC 112 SCRA 440 (1982) reiterated in TROPICAL HUT VS. TROPICAL HUT 181 SCRA 173 (1990) 4. Contrary to the constitution and by laws of the federation (which allows disaffiliation only within the 60 day freedom period), the local may disaffiliate from the federation at anytime, provided that such act is approved by the great majority of all the eE's in the bargaining unit. ASSOCIATED WORKERS VS NLRC (188 SCRA 123 1998) 5. As a corollary to number 4, once there is a disaffiliation, the obligation to remit union dues for the federation -- to check off dues for the federation-- ends, even if the contract still continues. VOLKSCHELL VS. BLR 137 SCRA 42 (1989) 6. The local union, not the federation, is liable for damages arising from an illegal strike voted for by the local, even if it was the federation who filed the notice of strike. The real party in interest is the local, so it is the local who is liable for damages arising from an illegal strike, even if federation filed the notice of strike. Before we go to Art. 241, we must first be familiar with that bureau in the labor dept. that has jurisdiction over labor unions -- the BUREAU OF LABOR RELATIONS (blr) Under Article 212 (b) Bureau means the Bureau of Labor Relations and/or the Labor Relations Divisions in the regional officies established under PD 1 of DOLE. Let me tell you that in the DOLE there are several bureaus ha. There is Buruea of Labor Studies. But whenever a Bureau is being referred to in book 5, that is the BLR, not the Bureau of Labor Studies. The BLR is found in Art. 226. The BLR has its principal office in Manila, but then it has several personnel that are attached to the Regional Offices of DOLE. Because for every region there is a regional office of the DOLE, and it has labor relations officers assigned therein. Under 212 (A) when it says Commission it means National Labor Relations Commission. Are there other commissions in the DOLE? Yes, the National Productivity and Wages Commission. But that is not what is referred to, but the National Labor Relations Commission. So, take a look at Art. 226. Bureau of Labor Relations . - The Bureau of Labor Relations and the Labor Relations Divisions in the regional offices of the Department of Labor, shall have original and exclusive authority to act, at their own initiative or upon request of either or both parties, on all inter-union and intra-union conflicts , and all disputes, grievances or problems arising from or affecting labormanagement relations in all workplaces, whether agricultural or non-agricultural, except those arising from the implementation or interpretation of collective bargaining agreements which shall be the subject of grievance procedure and/or voluntary arbitration. The Bureau shall have fifteen (15) working days to act on labor cases before it, subject to extension by agreement of the parties. *interunion - conflicts between unions intraunion- conflicts within the unions, either officers vs. officers, members vs. members or members vs. officers. Now, again, take a look at Art. 231. One of the functions of the BLR is to maintain a registry of unions and a registry of CBAs. ART. 231. Registry of unions and file of collective bargaining agreements. - The Bureau shall keep a registry of legitimate labor organizations. The Bureau shall also maintain a file of all collective bargaining agreements and other related agreements and records of settlement of labor disputes and copies of orders and decisions of voluntary arbitrators. The file shall be open and accessible to interested parties under conditions prescribed by the Secretary of Labor and Employment, provided that no specific information submitted in confidence shall be disclosed unless authorized by the Secretary, or when it is at issue in any judicial litigation, or when public interest or national security so requires. Within thirty (30) days from the execution of a Collective Bargaining Agreement, the parties shall submit copies of the same directly to the Bureau or the Regional Offices of the Department of Labor and Employment for registration, accompanied with verified proofs of its posting in two conspicuous places in the place of work and ratification by the majority of all the workers in the bargaining unit. The Bureau or Regional Offices shall act upon the application for registration of such Collective Bargaining Agreement within five (5) calendar days from receipt thereof. The Regional Offices shall furnish the Bureau with a copy of the Collective Bargaining Agreement within five (5) days from its submission. The Bureau or Regional Office shall assess the employer for every Collective Bargaining Agreement a registration fee of not less than one thousand pesos (P1,000.00) or in any other amount as may be deemed appropriate and necessary by the Secretary of Labor and Employment for the effective and efficient administration of the Voluntary Arbitration Program. Any amount collected under this provision shall accrue to the Special Voluntary Arbitration Fund. The Bureau shall also maintain a file and shall undertake or assist in the publication of all final decisions, orders and awards of the Secretary of Labor and Employment, Regional Directors and the Commission.
14
They might have decisions also. Remember Art. 129 of your labor standards? The Regional Director has jurisdiction over money claims as long as there is no prayer for reinstatement, and the individual aggregate monetary claim does not exceed P5,000.00. So the regional director also makes awards in cases of inspection of workplaces, and there is a deficiency of wages, the regional director can act on the basis of the recommendation. These are the types of decisions which the bureau shall maintain a file of. That is where the file is kept-- with the BLR. Who is their front line officer? The MED-ARBITER. In contrast with the LABOR ARBITER. The frontline officer of the NLRC is the LA, while that of the Bureau is the MA. Let us go to Art. 241. There is an enumeration all the way up to letter P. ART. 241. Rights and conditions of membership in a labor organization. The following are the rights and conditions of membership in a labor organization: (a) No arbitrary or excessive initiation fees shall be required of the members of a legitimate labor organization nor shall arbitrary, excessive or oppressive fine and forfeiture be imposed; So this is protection to the ordinary member of the union against his own union who might extract excessive or arbitrary fees. Now, what is an arbitrary, excessive inititation fee? Aron ka makasulod sa union, chargean ka ug initiation fee. Suppose a union charges an initiation fee of P10,000.00 is that excessive? It depends, if it is ALPAC -- Airline Pilots Association of the Philippines, the first officer and captain -- that's only 10% of the basic salary. But if you require P100 initiation fee for the stevedores of SASA, taas na na! That is almost a day's pay, and they cannot afford to miss a day's pay. (b) The members shall be entitled to full and detailed reports from their officers and representatives of all financial transactions as provided for in the constitution and by-laws of the organization So this is the right to a full and detailed financial reports. That is the second rule, and the 2nd rule already has something to do with money. (c) The members shall directly elect their officers, including those of the national union or federation, to which they or their union is affiliated, by secret ballot at intervals of five (5) years. No qualification requirements for candidacy to any position shall be imposed other than membership in good standing in subject labor organization. The secretary or any other responsible union officer shall furnish the Secretary of Labor and Employment with a list of the newly-elected officers, together with the appointive officers or agents who are entrusted with the handling of funds, within thirty (30) calendar days after the election of officers or from the occurrence of any change in the list of officers of the labor organization ; This is the right to directly elect their officers. Now the terms of the officers cannot be longer than 5 years. Why is is 5 years? To coincide with the term of the CBA. Now, what is the system under than this, because this mandates: "directly elect the officers by secret ballot". Is there another way? By representation -- in other words, the federation will just call a convention in manila and then the different delegates from the local and move up to Manila and they will elect the officers. Here, the mandate of the law -- because letter C was introduced by Republic Act No. 6715, this was an amendment, this was a change in the original rights and conditions of membership-what is the whole point of this change? The whole point of this change is supposedly to end dynasties. Why? There are dynasties of the labor movement. Like Associated Labor Unions, founded in the 1950s. The Industrial Peace Act was enacted in 1953, the precouser of book 5 of the LC. It was superseded by the LC in 1974. That is also the year that ALU was founded, and the first president of ALU was Demokrito Mendoza. Upto now, he is still the President of ALU. Is that not dynasty? And yet, the some people say that if you implement letter C, that members shall directly elect, if you are a big federation all over the Philippines, the only candidate that will win is someone who has the money to travel around so that he will be known by the grassroots members. And who has the money to travel around? The candidate of the employer, not the candidate of the members. Dynasty, accdg. to the labor leaders in response to this amendment, is inevitable. Because a union must be constructed and configured like an army. Only one knows the plan, otherwise, if you broadcast this --ani ha, inganing petsa ta magstrike, ayaw pagsaba -- so dapat isa lang ang nakabalo sa plano. And when he gives that command, it has the stature that everybody follows. Because during the crisis situation of a union, that is what is needed. Accdg. to them, this amendment introduced by RA 6715, tends to weaken the union. If you ask Mendoza, they will say that this is intended to weaken. But if you ask Mr. Veloso which authored the amendment, he will say that this amendment is to give power to the members, so that they have a say to who their leader is, and if they are dissatisfied with them, they can take them out. You should know it because one of these days you might be asked in the Bar: There is a move to take direct election of union leaders, are you in favor or against it? Comment. So that is a give away question, and the safe answer is: There are two schools of thought. (d) The members shall determine by secret ballot, after due deliberation, any question of major policy affecting the entire membership of the organization, unless the nature of the organization or force
15
majeure renders such secret ballot impractical, in which case, the board of directors of the organization may make the decision in behalf of the general membership ; So all must participate in deciding by secret ballot major policy affecting the entire membership. Example, the amount of union dues, how much union dues to collect? One day salary? One half day's salary? Now, the union leaders do not want that to be the subject of voting by everybody and what do they do? They put it in their articles of incorporation. They will say that "the union dues that will be checked off from every member of this federation shall not exceed 1 1/2 or 2% of the gross pay of the member" So as your salary increases, it also increases. And it is also proportionate, the bigger your salary, the bigger your union dues. Now, if it is in the constitution and by laws, do you still vote for it? No more because that is the terms and conditions of your agreement. You are supposed to have read that. If you don't agree, then you don't join, but if you do join, you are presumed to have agreed to that condition. (e) No labor organization shall knowingly admit as members or continue in membership any individual who belongs to a subversive organization or who is engaged directly or indirectly in any subversive activity; THIS HAS BEEN ABROGATED. THIS IS NO LONGER IN FORCE. (f) No person who has been convicted of a crime involving moral turpitude shall be eligible for election as a union officer or for appointment to any position in the union ; Take a look at that because that immediately raises the stature of the union officers higher than even the President of the Republic. The President has minimal qualifications -- able to read and write. (g) No officer, agent or member of a labor organization shall collect any fees, dues, or other contributions in its behalf or make any disbursement of its money or funds unless he is duly authorized pursuant to its constitution and by-laws; Why is this here? This rule is here because during the organizational phase of a union, there are still no officers, there is still no treasurer, secretary. It is the organizers who start to collect money to fund the union's activities. After their organization, there is already an election of officers, these organizers get used to collecting, sige lang gihapons suroy ug pangolekta. Ikaw, maulaw sad ka dili muhatag, pero wala na na silay katungod kay naa naman officers gi-elect. (h) Every payment of fees, dues or other contributions by a member shall be evidenced by a receipt signed by the officer or agent making the collection and entered into the record of the organization to be kept and maintained for the purpose; Simple man kaayo ni, klaro man ni. Any respectable organization will have to follow this as this is part of accounting, and yet this has to be put here because the lower you are as an organization, the more at home you are of informal ways. Labor Relations 7-11-07 Article 241: the Rights and Conditions of Membership in a Labor Organization. You have to be familiar with this article is the source of intra-union disputes. When the union member complains against the union he must be able to cite clear his rights. If it is not a violation of the constitution and by-laws of the union you must somehow read it with Article 241 to make it an intra-union controversy. Otherwise, the Med Arbiter will refer you to mediation & conciliation. Article 241(g) no officer, agent or member of a labor organization shall collect any fees, dues, or other contributions in its behalf or make any disbursements of its money or funds unless he is duly authorized pursuant to its constitution and by-laws. How can the constitution and by-laws authorize? It can directly authorize by giving the particular expense. For instance, it can mandate certain times or instances of labor seminar so that is an expense that is already mandated by the constitution and by-laws. You do not debate on that. The Board of Directors of the union can also pass a budget for a particular expenditure. They do so because they are authorized by the constitution & by-laws. That is why all of the expenses can somehow be directly or indirectly paid to the constitution & by-laws. So also is with respect to the collection of fee he/she must be authorized to collect not like in the beginning of the probation period where organizers simply collect where there is yet no authority. Once there is a constitution & by-laws you must follow the constitution & by-laws. If you continue to collect that is a violation of Article 241(g). Article 241(h) Every payment of fees, dues or other contributions by a member shall be evidenced by a receipt signed by the officer or agent making the collection and entered into the record of the organization to be kept and maintained for the purpose.
16
So if you do not make a receipt and you receive payment that is a violation. This is because it is now a right of a member to be given a receipt for any contribution that he makes by way of fees or dues to the union. So he can sue the officer charged with collecting if he does not issue a receipt. Article 241(i) The fund of the organization shall not be applied for any purpose or object other than those expressly provided by its constitution and by-laws or those expressly authorized by written resolution adopted by the majority of the members at a general meeting duly called for the purpose. Extraordinary expenditures must be approved by the members at a general meeting duly called for the purpose. Is it the absolute majority of the membership or is it just a quorum majority? It is just a quorum majority. If there are 200 members then the general assembly meeting to be valid must have 100 plus one. The majority of that is enough to pass the expenditure because it says majority of the members in a meeting it does not say majority of all the members. Majority is 50% of the whole plus one. Article 241(j) Every income or revenue of the organization shall be evidenced by a record showing its source, and every expenditure of its funds shall be evidenced by a receipt from the person to whom payment is made, which shall state the date, place and purpose of such payment. Such record or receipt shall form part of the financial records of the organization. (Amended by Sec. 16, RA 6715) Any action involving the funds of the organization shall prescribe after three years from the date of submission of the annual financial report to the Department of Labor and Employment or from the date the same should have been submitted as required by law, whichever comes earlier; Provided, that this provision shall apply only to a legitimate labor organization which has submitted the financial report requirements under this Code; Provided, further; that the failure of any labor organization to comply with the periodic financial reports required by law and such rules and regulations promulgated thereunder 6 months after the effectivity of this Act shall automatically result in the cancellation of union registration of such labor organization. The failure to file financial reports has been upheld in the case of PAFLU vs. Secretary, famous landmark case of Chief Justice Roberto Concepcion. In this case, he distinguished between freedom of association and __. Because the union PAFLU claimed that by cancelling registration the Department of Labor was violating the members constitutional right to association. Roberto Concepcion in his clear and lucid language distinguished it. A totally and distinct personality that is to be registered is not a precondition for the exercise of freedom of association. Your separate and legal personality as a union is cancelled if you failed to report. That is not necessary for the exercise freedom of association. Because freedom of association is essentially association. The Martial Law was proclaimed, General Order No. 1, to be effective the gathering of three or more people. If you gather three or more you could be arrested and detained without the need of any warrant. Why? Because it is very easy to say let us meet together and topple the government because it is an unauthorized government. Martial rule is already in excess of constitution. So immediately Marcos declared I dont care what the Sandiganbayan has done which is one of the smelliest courts that has made an appearance. The essence of freedom of association is solicitation. Remember it is not the gathering physically. Kay kung tinuod pa na kanang tanan nagasakay og jeep diba more than three man pandakpon mo kay naa mo dira nagkatigom mo. The juxtaposing of people is not freedom of association. The essence of association is solicitation. That is why even in the internet, even if you are miles apart you can associate. And any country that wants to control the internet is actually violating your freedom of association. China is the number one violator of freedom of association. The big internet websites like yahoo, google, and different Chinese websites are forced to give to the government. They have primary codes. The Chinese government hires people to keep track. If you are a man and you associated with more than one woman you could have been arrested in Martial Law. You cannot gather three or more. That is General Order No. 1. General Order No. 2 is check points. That is why kanang mga check point nga good evening sir, G.O. 2 ni sir those are part of G.O. 2. All those soldiers are educated and trained. Who issued the GO? The Commander in Chief. It is a military operation. It does not require a warrant. If the union registration is cancelled for failure to comply with the periodic financial report that is not a violation of the freedom of association. Prescriptive period is supposed to be 3 years from the date of submission of report or from the date of actual submission , whichever comes earlier. Every expenditure from the funds shall be credited by a receipt from the person to whom payment is made which shall state the date, place and purpose of the same. What if you make a payment but there is no receipt or traditionally there is no receipt? For example, musakay ka og jeep alangan mag-issue pa nag receipt nimo. Sulayi pangayo og receipt diba sagpaon ka sa driver. The same with taxi. You cannot get a receipt from taxi. For instance, you are assigned to do a certain duty and you go to the Department of Labor tapos mugasto ka unsaon man na nimo? You produce your own receipt. Example taxi from Sasa to Regional Office. You must have evidence of the expenditure. Article 241(k) The officers of any labor organization shall not be paid any compensation other than the salaries and expenses due to their positions as specifically provided for in the constitution and by-laws, or in a written resolution duly authorized by a majority of all the members at a general membership meeting duly called for the purpose. The minutes of the meeting and the list of participants and ballots cast shall be subject to inspection by the Secretary of Labor or his duly authorized representatives. Any irregularities in the approval of the resolutions shall be a ground for impeachment or expulsion from the organization.
17
The general rule is that the officers of the union are not paid. That is what Article 241(k) says. The exception is if the constitution and bylaws so provide or by the general membership by absolute majority vote then they shall so be paid. That is the rule. You know the process. Sinugdanan sa meeting naay quorum present tanan. Sunod mag-debate mo. Unya nay tao nag tindog who is so abnoxious and the Chair grants him the floor. Kanang mga tao nagduka na na, kaihion na na sila, manghawa na. Pero nagpirma na sila og attendance kay ipangpasapasa na. Sunod kung gamay nalang nahibilin ingnon nimo nga mao ning pabor nako so magsugod na ta. So katong nagattendance mao natong nagpirma. But actually it is not absolute majority. Thats an old trick perfected by the Communist. Mao nang ang number one position na ilang pangitaon jud dili man Chairman o dili man Presidente. Ang ilang pangitaon kay Secretary General. Secretary lang man kaha na siya unsa mang kahadlokan nato sa iya? Mao nay nagkupkop sa records. He legalizes everything. Assignment: research on the historical event of haymarket square. That is an important historical event for labor relations. When did it occur? What country did it occur in? What are the consequences of its occurrence? What is the perspective now at history looking back at what happened in haymarket square? You cannot finish labor relations without knowing what happened in haymarket square. Not paid compensation. And then the qualified formal requirement of the meeting that authorized payment of compensation & salary to union officers if the same were not provided by the constitution and by-laws but by the general assembly in a meeting duly called for the purpose. Article 241(l) - The treasurer of any labor organization and every officer thereof who is responsible for the account of such organization or for the collection, management, disbursement, custody or control of the funds, moneys and other properties of the organization, shall render to the organization and to its members a true and correct account of all moneys received and paid by him since he assumed office or since the last day on which he rendered such account, and of all bonds, securities and other properties of the organization entrusted to his custody or under his control. The rendering of such account shallbemade: 1. 2. 3. At least once a year within thirty (30) days after the close of its fiscal year; At such other times as may be required by a resolution of the majority of the members of the organization; and Upon vacating his office.
The account shall be duly audited and verified by affidavit and a copy thereof shall be furnished the Secretary of Labor. In case in the bar examination they ask you how many times is the treasurer of the union obliged or mandated to make a financial account? That is Article 241(l). These are the three instances: 1. At least one a year within 30 days after the close of the fiscal year. That is very easy to remember. Because as you very well know that is also the time within which the union must file a financial report to the Department of Labor at the end of the fiscal year. Have you taken up tax? Fiscal year is very crucial to taxation because that is the basis for the accounting period. The fiscal year has a difference as to a calendar year. But it may not begin and end with the calendar year. But it is related, that is, 365 days. That is the fiscal year, that is the accounting period - the period within which you account for the financial story of a place. Now, 30 days from the close of the fiscal year, the treasurer of the union must make an account. So that is one instance. 2. At such other times as may be required by a resolution of the majority of the members of the organization. Is this absolute majority? No, it is just a quorum majority. So there is a very small quantum of votes needed to command the treasurer to make the report. 3. Upon vacating his office. The account shall be duly audited and verified by affidavits and a copy thereof should be furnished to the Secretary of Labor. Why is this necessary? To put a closure to his accountability, and so that the incoming treasurer will not be penalized by the indiscretions of the predecessor, or so that the incoming treasurer will not be able to steal money and so is that predecessor, either way so there must be closure. That is why he is commanded upon vacating the office to produce a financial report. So that is the description of his duty. The treasurer of any organization and any officer thereof will be responsible for the account of such organization for the collection, management, disbursement, custody or control of funds, money and other properties shall render to the organization and its members a true and correct account of all money received by him since he assumed office or since the last day of which he rendered such account and/or bonds, securities and other properties of the corporation in his custody or under his control. What is the fiscal year of the Ateneo? Is it the calendar year? No, it is not the calendar year. It is the academic year. It always begins June 1 and it ends May 31. Most business establishments follow the calendar year. They begin January 1 and they end December 31. You cannot have a balance sheet without a specific date. That is the snapshot because you are talking about an ongoing concern. The assets of a union increase or decrease depending on the transactions of the day. There is no such thing as static financial situation. Thats why it is called an ongoing concern. Mind you its not a joke. PICOP or Peoples Industries Corporation of the Philippines has 8,000 workers. Kung mukompute ka anag tag dosyentos pesos kada bulan. That is over a million. That is why naay nagapatay diha pag election. LABREL 07.13.07
18
So did you read up on the Hay Market Massacre? Where did that happen? In Chicago in 1886, at the heart of the Industrial Revolution. How many people died there? Hundreds? Not hundreds.. 8. That is the originin of Kilusang Mayo Uno because it happened on May 1. That is the beginning of the international labor movement of the communist. That is why it is glorified because accdg. to the thinking of the Communist, it was the beginning of the end of the capitalist labor. With that came the Communist Manifesto: "workers of the world unite, you have nothing to lose but your chains." But it is ironic because 100 years from then, who lost? It is still the capitalist who is around. The Communist Int'l Labor Movement is gone. That is why they no longer want to put KMU. We went through the prerogatives of labor union members under Art. 241. And we are down to this rule of requiring the treasurer of the labor organization to make his reports under these three instances -- mandatory. And you have the right of inspection under letter M which may be exercised by any officer or member thereof during office hours. (m) The books of accounts and other records of the financial activities of any labor organization shall be open to inspection by any officer or member thereof during office hours; Now, you may look at the books. I believe the stockholders rights apply to this section. You cannot demand a copy, but you can copy at your own expense. And the union has the right to determine the time when they (books) are open for inspection, because if this right can just be exercised at will, then the officers will have nothing to do but just opening the books. So it can be ordered in such a fashion that the implementing law may provide. Now, remember the rule of secret ballot voting in order to decide an issue affecting all the members. That is letter (D). Remember that when you read letter (N). This is a specific rule with regard to special assessment. It says: (n) No special assessment or other extraordinary fees may be levied upon the members of a labor organization unless authorized by a written resolution of a majority of all the members in a general membership meeting duly called for the purpose. The secretary of the organization shall record the minutes of the meeting including the list of all members present, the votes cast, the purpose of the special assessment or fees and the recipient of such assessment or fees. The record shall be attested to by the president. So there is a need for voting and absolute majority. So there are even formal requirements when it comes to special assessment in addition to the secret ballot voting required by letter (d). Then it says: (o) Other than for mandatory activities under the Code, no special assessments, attorneys fees, negotiation fees or any other extraordinary fees may be checked off from any amount due to an employee without an individual written authorization duly signed by the employee. The authorization should specifically state the amount, purpose and beneficiary of the deduction; So when it is a special assessment or when it is atty's fees or negotiatition fees, or extraordinary fees, then aside from the secret ballot (in letter D), and the formal requirements (in letter N -- the secretary has to write down all thos who participated in the meeting, and the attestation of the president, etc), additional requirement of INDIVIDUAL WRITTEN AUTHORIZATION DULY SIGNED BY THE EMPLOYEE. Now what happens if all vote and write the written authority and there is only one who does not want? Then he cannot be covered by this special assessment ; he cannot be checked off by the employer. Check off means it will be deducted from the source by the employer.. kuhaon na ba. Di na sya kakita ana, diretso na na sa union. Now, that is why you have to read the ABS CBN case. That is the landmark case for special assessment. You will see those who did not give their written authorization will not be covered by the special assessment. So Korina Sanchez, Jay Sonza, Mel Tiangco filed a case that they should not be covered, and the Union could not prove that it was a mandatory activity -- because it says "OTHER THAN for MANDATORY ACTIVITY". If it were a mandatory activity, you can collect on special assessment, this is the exception to the exception. But here, this was not a mandatory activity because it was attorney's fees for the attorney who helped them negotiate their CBA. What are these mandatory activities for which you can collect for special assessment without necessarily going through the formalities of individual written authorization in letter O and N. That is answered in letter P: (p) It shall be the duty of any labor organization and its officers to inform its members on the provisions of its constitution and by-laws, collective bargaining agreement, the prevailing labor relations system and all their rights and obligations under existing labor laws. For this purpose, registered labor organizations may assess reasonable dues to finance labor relations seminar and other labor education activities. That is a mandatory requirement. You can collect special assessment on that because that is mandated by the labor code. Then it says:
19
Any violation of the above rights and conditions of membership shall be a ground for cancellation of union registration or expulsion of officers from office, whichever is appropriate. Normally it is the officers who are being penalized, because is you cancel the registration of the Union, you are in effect, penalizing the members, that is why most often, it is the officers who are penalized. At least thirty percent (30%) of the members of a union or any member or members specially concerned may report such violation to the Bureau. The Bureau shall have the power to hear and decide any reported violation to mete the appropriate penalty. What bureau is it? Bureau of Labor Relations. So it has the exclusive and original jurisdiction of what is called intra-union disputes, which arise under this Art. 241. Is there need for 30% to file the complaint before the Med-Arbiter of the Bureau can hear and decide those cases? By a decided case, the SC said that this 30% requirement is merely directory. That is Rodriguez vs. Director of Labor Relations 165 SCRA 239 (1988) . That is only directory. Now, let me bring to your attention Art. 274, visitorial power. When did we first come across this power? We saw this in Art. 128 Visitorial powers of Sec DOLE or representative of Sec. of DOLE with respect to enforcement of minimum wage. ART. 274. Visitorial power. - The Secretary of Labor and Employment or his duly authorized representative is hereby empowered to inquire into the financial activities of legitimate labor organizations upon the filing of a complaint under oath and duly supported by the written consent of at least twenty percent (20%) of the total membership of the labor organization concerned and to examine their books of accounts and other records to determine compliance or non-compliance with the law and to prosecute any violations of the law and the union constitution and by-laws: So who has the power to inspect labor organizations, to visit them, to look at their books? Under 247, the Sec. of Labor or his duly authorized representatives -- the Bureau or the Director or any officer there can be made the duly authorized representative. Provided, That such inquiry or examination shall not be conducted during the sixty (60)-day freedom period nor within the thirty (30) days immediately preceding the date of election of union officials. (As amended by Section 31, Republic Act No. 6715, March 21, 1989). This particular last provision is so that this particular visitorial power will not be used for persecution against particular personalities. So you cannot do it during the freedom period of the CBA and upon assumption of office, within 30 days. Now, the issue here is the BLR has the exclusive and original jurisdiction to try and decide intra-union dispute, and this dispute may spring out from money controversy. Can the Bureau on its own, does it have power to inspect? Because it says here (Art. 274) they have to wait for the Sec. of Labor? It would seem that they have to wati for the Sec. of Labor. Do they not have on their own the visitorial power to inspect? They have [such power], but just to show you how topsy-turvy our law is, it is found in Chapter 16, Book 4, Title 7 of the Admin. Code of 1987. And yet, the Supreme Court has taken acknowledgment of it. Where? In the case of La Tondena Workers' Union vs. Sec. 239 SCRA 117 (1992) So now we know: The Sec. of Labor has visitorial powers, the BLR on its own can exercise visitorial powers. Why? In the interest of the working man who is supposed to be protected by the Union. So those are the rights and conditions of members. Just to put things in perspective, you have taken up Admin. Law, and you have come across the doctrine of exhaustion of admin. remedies. That is the same rule that is applicable here. The union member must first exhaust all the internal remedies available to a worker under its constitution and by-laws. So he must seek redress from the authority of the Union. After he/she has exhausted [the remedies], then s/he can file a complaint with the Med-Arbiter. Of course you know that there are so many exceptions, suppose the one you are complaining against is the one under the constitution and by-laws whom you should file your complaint with, or if it is a question of law, etc. There are 13 exceptions here, laid down by jurisdiction. That is also applicable here. Article 242: We are talking here of the rights of a legitimate labor organization. ART. 242. Rights of legitimate labor organizations. - A legitimate labor organization shall have the right: (a) To act as the representative of its members for the purpose of collective bargaining; That is only half true, because when it acts as representative for purposes of collective bargaining, we will learn later on, that it is not only representing its union members, but it represents the entire barganing unit.
20
(b) To be certified as the exclusive representative of all the employees in an appropriate bargaining unit for purposes of collective bargaining; What do you mean by certified? First, musulod ka sa bargaining unit, and after your election, the BLR certifies that election. Murag bendisyonan ka ba, you are certified. Ikaw ang napili.. you are certified. You have a right to do that if you are chosen in a certification election. (c) To be furnished by the employer, upon written request, with its annual audited financial statements, including the balance sheet and the profit and loss statement, within thirty (30) calendar days from the date of receipt of the request, after the union has been duly recognized by the employer or certified as the sole and exclusive bargaining representative of the employees in the bargaining unit, or within sixty (60) calendar days before the expiration of the existing collective bargaining agreement, or during the collective bargaining negotiation; So human na ang election, certified na sya, he (union) can demand from the employer a copy of the latest audited financial statement. Audited financial statement, there are two: the balance sheet, and profit and losses. You have a right to demand. Now, if you have not demanded within 30 days after you were certified, you can also ask for it during the negotiations or during collective bargaing negotiations, or within 60 days before the expiration of the existing CBA (to help you prepare for the succeeding negotiation). So those are the 3 instances when you can demand the audited financial statement of the employer when you are certified. (9:14) So do not forget that. There are three instances when the treasurer of the labor union must make a report and three instances where the union can demand from the employer copies of the latest audited financial statement. Remember that normally, audited financial statement come out at the end of the fiscal year. So it is necessarily the audited financial statement of the previous year that the union will have a copy and used by the union as a basis for negotiations. The significance is when you are audited, a 3rd person looks into your statement and he certifies that this is a true and faithful financial story of the company. There is a third party who vouches for that. After that, you have the necessary incidental rights of a juridical person: (d) To own property, real or personal, for the use and benefit of the labor organization and its members; (e) To sue and be sued in its registered name; and (f) To undertake all other activities designed to benefit the organization and its members, including cooperative, housing, welfare and other projects not contrary to law. Thats why you will understand that a labor organization, its purpose in whole or in part is collective bargaining because it can undertake other purposes like housing. And to encourage it to do that, look at the last paragraph because that is social legislation: Notwithstanding any provision of a general or special law to the contrary, the income and the properties of legitimate labor organizations, including grants, endowments, gifts, donations and contributions they may receive from fraternal and similar organizations, local or foreign, which are actually, directly and exclusively used for their lawful purposes, shall be free from taxes, duties and other assessments. The exemptions provided herein may be withdrawn only by a special law expressly repealing this provision. (As amended by Section 17, Republic Act No. 6715, March 21, 1989). So you have that. What taxes do unions need not pay or from what taxes are they exempt? Property taxes (real property tax found in the Administrative Code), Income Tax, Gift Tax, Special Assessments, and Duties. The only one that has a better status is the church, because of American Bible Society vs. City of Manila --even if the church makes some money from the selling of bible, even that is not taxable. So you have now the entire rights of a legitimate labor organization. Labrel 07.18.07 ART. 239. Grounds for cancellation of union registration. - The following shall constitute grounds for cancellation of union registration: (a) Misrepresentation, false statement or fraud in connection with the adoption or ratification of the constitution and by-laws or amendments thereto, the minutes of ratification and the list of members who took part in the ratification; (b) Failure to submit the documents mentioned in the preceding paragraph within thirty (30) days from adoption or ratification of the constitution and by-laws or amendments thereto;
21
(c) Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election of officers, the list of voters, or failure to submit these documents together with the list of the newly elected/appointed officers and their postal addresses within thirty (30) days from election;chan robles virtual law library (d) Failure to submit the annual financial report to the Bureau within thirty (30) days after the closing of every fiscal year and misrepresentation, false entries or fraud in the preparation of the financial report itself; (e) Acting as a labor contractor or engaging in the "cabo" system, or otherwise engaging in any activity prohibited by law; (f) Entering into collective bargaining agreements which provide terms and conditions of employment below minimum standards established by law; (g) Asking for or accepting attorneys fees or negotiation fees from employers; (h) Other than for mandatory activities under this Code, checking off special assessments or any other fees without duly signed individual written authorizations of the members; (i) Failure to submit list of individual members to the Bureau once a year or whenever required by the Bureau; and (j) Failure to comply with requirements under Articles 237 and 238. What are the grounds for cancellation of labor union's registration? Please do not make the mistake of identifying just Article 239. Article 239 is NOT an exclusive list. Look at Art. 241, it says there: "Any violation of the above rights and conditions of membership shall be a ground for cancellation of union registration or expulsion of officers from office, whichever is appropriate. x x x". So potentially, therefore, any of these provisions in 241 is a ground for cancellation of registration. So in relation to 239, you have 241. And then under Art. 239, it says under letter (j) Failure to comply with requirements under Articles 237 and 238. And those are requirements for the registration. Now we all know the grounds for cancellation of registration. Failure to comply with Articles 234, with 237, 239 and 241. These sum up the entirety of the grounds for cancellation of registration. What is important in the cancellation of registration is notice and hearing. Registration once issued is a vested right and therefore the union may not be deprived of the same without compliance with the requirements of due process. And due process is complied with if there is notice and hearing. All right, let us go to CERTIFICATION ELECTION. The IRR has a peculiar definition for certification election. Rule 1, Sec. 1(h) (h) "Certification Election" or "Consent Election" refers to the process of determining through secret ballot the sole and exclusive representative of the employees in an appropriate bargaining unit for purposes of collective bargaining or negotiation. A certification eletion is ordered by the Department, while a consent election is voluntarily agreed upon by the parties, with or without the intervention by the Department. Know that very well because that is erroneous. First of all, it does not distinguish between certification election and consent election. Secondly, intervention of the State by way of overseeing elections is permissive, when it is not. In other words, there could be or there could not be intervention by the DOLE (the State) in the certification election. That is incorrect, precisely because it is for certification election, not just election because the State certifies the result. You have an accountant in you establishment, and you have a certified public accountant, what is the difference? The CPA issues a sworn statement, that the work of the accountant in telling the financial story is as close as possible to the real financial story. Somebody else certifies, he's an independent body. The trouble is our DOLE is only schooled in one school of thought. The real definition of a certification election is: It is the process of determining whether or not a bargaining unit wishes to be represented, and if so, who or what union shall represent them. And the result of that process is certified by the state as the true and correct choice of the bargaining unit. So basically there are two issues to be determined: 1. Whether or not the bargaining unit may be represented; 2. Who is that representative. Now, its not like an election for a mayor. The people there have no choice, whether they like it or not, they must have a mayor. That is why you just vote for who will be a mayor. But in a certification election, especially if it is the first certification election in an unorganized
22
establishment, even if there is only one candidate, there is still an election. And what is the choice? The choice is between no union and that candidate. And time and again the SC has said that even if there is only one candidate, there has to be an election. Why? Because the right to selforganization includes the right not to join a union. Now, please keep that in mind because under EO 180, it says that if there is only 1 union registered for a particular employee's unit, then the same will be listed as the exclusive bargaining agent of that unit. There is what we call direct certification. The government itself certifies that that is the representative. Now I believe that that can still be challenged before the SC, and if that will be challenged by the government workers, they will say that our right to self organization should not be less than the right to self organization of those employed in the private sector. Because even if there is only one union, they can still choose between no union and that union. WE will later on see that there are several kinds of certification election. First it says CONSENT ELECTION. The definition there is not quite accurate because in the certification election proceedings, actually if it is an unorganized establishment, the first order of business is to determine the appropriate bargaining unit. Please disabuse yourselves of the idea that the union represents the employees. No, it does not. The union represents a bargaining unit. What is a bargaining unit? A bargaining unit is a specific configuration of employees in one employer. You have at least that in any employer there are at least 2 bargaining units. Why? You have the bargaining unit of supervisors, because the supervisors cannot join the rank and file. And secondly, there is the bargaining unit of the rank and file. At least there are two, and you can be sure of that. So, rank and file can also be very broad, it can be divided into several bargaining unit. Now, question: What are the accepted criteria for the determination of a bargaining unit as appropriate? That is answered in BELYCA CORP. VS CURRA-FERRER CALLEJA 168 SCRA 184(1991) . In this case, this is an unorganized establishment, meaning there is still no union in this establishment. The union came in for the 1st time and filed a petition for certification election. Management opposed and what was the opposition? It was grounded on the improprietness of the bargaining unit. Now, this is where the SC listed down several criteria, and it is important for you to realize why a multiple criteria is needed because the law does not say the "most appropriate bargaining unit" but it says "appropriate bargaining unit". So the leeway for discretion is wide. You will later on see that the title of a certification election is not Union, petitioner vs. Management, respondent. Management is NOT a party. What the SC says in LVN vs Phil. Musicians' Guild is a landmark pronouncement in labor relations because SC says that a petition for certification is a fact finding proceeding. What is the fact sought to be established? The choice of the people in the bargainng unit. That is why the title for a petition for certification election is: IN RE: Petition for Cert. Election among Rank and File Ees of XYZ Corp. That is the title of the petition. In Belyca case, the setting here is Malaybalay Bukidnon. There is a place there called Kalasugay. As you go into that portion, you will see there a farm where Belyca Corp had a 300 sow piggery, and some cornfields and cassava fields.Uptown there is this particular supermarket, Belyca Supermarket. And there is another part of town with two movie theaters and a restaurant, that is all part of Belyca Corporation. Now, ALU went into the farm of Belyca and organized the farmers. They filed a petition for certification elections, and the respondent is Belyca Corporation, and they want this established as a bargaining unit, carved out of the rank and file workers of Belyca. And they want to represent this bargaining unit. Management opposed and said this is not the appropriate bargaining unit. Mgt says the appropriate bargaining unit is the entire employee unit. They gave particular reasons: If this (farmers) is the appropriate bargaining unit, then all these (supermarket workers and the theater and restaurant workers) will also separate and we will have no time to manage and we will just be sitting with one union after another. So this is not the appropriate bargaining unit. The med-arbiter who heard this made a pronouncement that the appropriate bargaining unit is this farm and therefore set an election. Belyca appealed it to the Sec of Labor and then to SC. SC says there are several criteria for determination of the appropriateness of a bargaining unit . What are those criteria? 1. BARGAINING HISTORY 2. GLOBE DOCTRINE 3. COMMUNITY OF INTEREST 4. STATUS OF THE WORKERS' EMPLOYMENT i. BARGAINING HISTORY
23
What do you mean by bargaining history? IF this were an organized establishment, meaning there is already a union here representing these workers, the next time it holds a petition for certification election, the bargaining unit over which representation will be determined, will still be the unit because it is presupposed that what is apppropriate before is still appropriate now. What is the bargaining unit yesterday will still be the bargaining unit today and tomorrow. What is the exception? The exception is if there is AN INTERVENING SUBSTANTIALLY ALTERING HISTORICAL FACT. What could that fact be? The case of NAFTU vs. Mainit Lumber-ULGWP Before, Mainit Lumber was divided into two general bargaining unit for the rank and file. The first bargaining unit (BU) is for the logging workers. Most of these workers are out in the field, operating heavy machineries, staling the logs, loading the trucks.. they are out in the forest. The second BU is the sawmill, those that cut the logs, classify the logs, load and ship the logs. So these are two separate BU. In the course of the years, all the logs were consumed. There were no more logs to be cut. So they laid off people little by little until those who working-- the remnants of the logging BU -- became the members of the logpulp when the logs from Indonesia which they improvised (?) were dropped off and brought into the sawmill. Gamay na lang ang tao. So the union moved that instead of 2 BUs, there should only be 1 because the logging BU were depleted. Is that correct because management opposed it? SC said that's correct, it should only be one because there is now a substantial fact that has altered the situation. So that principle of bargaining history is given exception to. Another exception to that rule is SAN MIGUEL CORP VS LAGUESMA 236 SCRA 595 (1994) What happened here? We are talking here of the sales force of SMB. The sales force of SMB used to be made up of roving mestizo employees that had white uniforms, white shirt, khaki pants, and they roamed in these trucks which were really SMB trucks, and they got their merchandise from the SMB bodega, and they distributed SMB. So you have a sales force in La Union, in Baguio, in Lawat, Ilocos Norte, in Isabela, in all these different places. Now, what happened? SMB entered into a revision of its sales force. Instead of employing these mestizo looking individuals, SMB began to set up this guerilla style of selling, pioneered by Pop Cola. What was this guerilla style of selling introduced by Pop Cola? Muadto sila to the biggest sari-sari store in the area, gusto ka ba mahimong distributor? Unya, mao ni imong area, pautangon ka namo, buhat kag bodega sa imong likod, butangan natog softdrinks. Dayon imong mga tao ang manuroy diha sa inyong area, manguhag order, unya ang mudeliver ana kanang mga trisikle drivers na.Dili na na sila ma-unionize. Mao na na ang nahitabo. That was questioned in the SC, San Miguel Special Events Team vs. Secretary . It was upheld by the SC. Because: 1. it was bona fide business interest -- to reduce cost. 2. Management did not reduce the pay of the salesmen. They incorporated their commissions in their basic, so even if their territory is growing smaller and smaller, they were still receiving the same pay. But they were no longer being replaced. If they retire, there will be no replacement hired for you. The area they leave behind will be taken over by these sari sari store distributors. So nagkagamay na sila ug kagamay. Hantod sa kagamay nila, napugos sila ug retire. Those are business exigencies. In this case, before, there used to be let say 30 salesmen in San Fernando, La Union; 40 in Baguio; etc. These were the different chapters of the union. Karon, because of the retirements, mahimo na lang 2 salesmen in La Union, 3 in Baguio etc. Because they were already very few, the union moved that they will be constituted as a single BU. They could no longer survive if they will still be considered different BUs. So they were pointing to that intervening fact that changed substantially the circumstances. Is that correct? The SC says Yes, bargaining history is taken excpetion to because of the intervening substantially altering historical fact. ii. GLOBE DOCTRINE The Globe Doctrine is not a doctrine of the US Supreme Court. It is just a pronouncement of the NLRB (National Labor Relations Board). But because of its wisdom, it became very popular and was used by all the states without exception and so it became a federal doctrine. If you have a general bargaining unit (which means: those employees included in the general bargaining unit have different technicals -- there could be plumbers there, mechanics, electricians, etc-- there common denominator is that they are rank and file), and there is a particular group of workers with one technical specialization (i.e. plumbers), and they want to separate because now they are a substantial group (daghan na sila), and they feel that they do not get a proper representation when they are mixed with the generality of the rank and file ees. how is that to be decided? Whether there will be remaining general bargaining unit or whether there will be two: one a general bargaining unit, and the other a craft unit now made up of one particular craft.
24
The NLRB says there should be a referendum of all the members involved and they should decide which regime should be followed -- and that became known as Globe Doctrine because the ER there is the Globe Electrical Company in the US. So what is the doctrine if you really want to be precise about the Globe Doctrine? IF a general unit -- all those covered by it --- will be equally served by maintaining that gen. unit or by breaking it up into a craft unit and a gen. unit, then it should be the workers who will decide by a secret ballot what regime should be followed: multiple bargaining unit or a general bargaining unit. That is the real Globe Doctrine. But the Supreme Court just sums it up: IT IS THE WILL OF THE WORKERS THAT SHOULD DETERMINE A PARTICULAR BARGAINING UNIT. It is the choice of the workers that should determine the BU. That is a litte over generalization, that is not accurate. iii. COMMUNITY OF INTEREST The criteria that should determine whether this should be the BU or some other configuration is a community of interest. Whether or not the employees covered by the BU share a common interest with respect to pay, days of work, working conditions, etc. so that they can bind themselves together and have common cause with which to bargain with management. Example: You have daily paid and monthly paid ees. That does not configure to commonality of interest. Daily paid or monthly paid. The monthly paid people do not care if it is a holiday or not because they receive the same amount of pay regardless of actual number of working days a month. But a daily paid worker, you are interested in finding out the actual number of working days in a month. So the increase you are trying to get is an increase in a monthly rate if you are a monthly employee.. and so there is no commonality of interest. iv. STATUS OF WORKER'S EMPLOYMENT For example, you are a probationary employee. You are still under a conditianal employment. What is the condition? You will be a regular subject to compliance with the standards of the company during the probationary period, say 6 months. Now, if in the bargaining unit you also have regulars, you will have no commonality of interest.. you will have opposing interest. Why? Because the probationary worker would readily sacrifice increase of wages provided he be granted security of tenure. Bahala na walay increase, basta ma-regular lang sila. What was the ruling of the SC in Belyca case? There is a lack of community of interest if the bargaining unit is the entire employee unit. Why? 1. The agricultural workers here, many of them are seasonal workers, and they do not work the whole 365 days, unlike the workers in the supermarket. 2. They (farmers) are paid on a daily basis, while the supermarket workers are mostly paid on a monthly basis. 3. There is no social intercourse. They cannot mingle with each other in order to forge a common stand; in order to exchange views. Why? Because the workers in the farm are paid there; they have their records there. They are in fact prohibited from going to the supermarket. So how can they make common cause with each other if they are socially segregated by the rules of the company itself. Therefore, this (farmer's BU) is an appropriate bargaining unit. So first, it is the appropriateness of the bargaining unit. Now, the real definition of representation.. if the employer says, "I agree with the appropriateness of the bargaining unit, there is no objection." Then the Med-Arbiter says "So you consent to the election? Sige, election!". The issue to be determined is the second part, who if, at all, will represent this bargaining unit. So you set right away the date of the election. So there are two possibilities: either the employer really knows that he is going to win in this election because he agrees to an election right away, or he is in favor of the union representation becuase he consents to an election. But that is very rare-- because from the business point of view, union are additional cost, which is not a market cost. So I would like to ask you to read UP vs. Curra-Ferrer Calleja 211 SCRA 451 . This is another angle of looking at a bargaining unit in the public sector. And then SAMAHAN VS. SECRETARY 286 SCRA 692 (1998 ). Where the SC said that there has to be a certification election. The law has dissiminated voluntary recognition and direct certification in the private sector.. there has to be an election even if there is only one union, because the right to self organization includes the right not to join a union. LABREL 07.20.07 We are still in certification elections. And we saw that especially in unorganized establishment, the first issue that the first issue that the Med-Arbiter is faced with is the appropriateness of the bargaining unit. That is the first issue. The discretion of the Med-Artbiter, unless it is pre-empted by law, as in the case of supervisors where he does not have any discretion, is otherwise broad. Because the law does not say the most appropriate, but it simply says "appropriate bargaining unit). We also saw the four criterias. And yet I told you that sometimes the SC comes up with criterias other than those. If you have read UP vs. Curra-Ferrer Calleja, remember there the non-teaching staff of UP wanted to include in their certification elections wanted to include the professors. According to them, it
25
will simplify the relations between the University if it will only have to deal with one union. So they want to include the professors. Second, the UP normally gives the same raise in pay and other benefits to the teaching staff, that the non-teaching staff are able to get from the UP. So you might as well represent also the teaching staff. That's their second argument. The UP opposed the lumping together of the teaching staff and non-teaching staff into one bargaining unit. The issue was brought to the SC. The SC has this clear ruling that is somehow condensending, somehow discriminatory. SC says it cannot imagine what is of common interest between the ordinary wage earner and the professors who have had long education and high degrees such as PhDs and graduate degrees. It would seem for the SC that in a tertiary level employer, it would be difficult to mingle a tertiary professor with a non-teaching staff, because there is no community of interest. The SC says that in the case of the non-teaching staff, it is the UP who determines if you become regular or not provided you meet the standards made known to you at the inception of the relation. If you meet the standards, then you become a regular. If you are a professor in UP, how do you become a tenured professor? It is not just the UP which determines that, it is your peers. There is a tenure committee, and so many criteria which will determine if you will become a tenured professor. And peculiar to that criteria is your field of expertise. Did you finish your degree in a respectable institution? What have you written or published? Where was it published? What research have you done? It is not UP that determines that, it is your peers. Because in the end, the teacher in the tertiary level is that rare employee that enjoys that double security of tenure. S/he enjoys that security of tenure in the Labor Code. And if you are a professor with tenure in the university, you are also protected by that security of tenure based on academic freedom. You cannot be disciplined because of what you teach, on the basis of the contents of what you teach. Why? Because you are supposed to be in the forefronts of knowledge. The ordinary rank and file non-teaching staff cannot possibly be together with tertiary level professors. So, can that be understood as another bargaining unit imposed by law? You know that the BU of supervisors is imposed by law; they cannot join the rank and file workers, they must form their own bargaining unit. Now, can this UP case be another one? We don't know.. this has not been answered yet. Article 256 is certification elections in organized establishments. Art. 257 is certification elections in an unorganized establishment. ART. 256. Representation issue in organized establishments. - In organized establishments, when a verified petition questioning the majority status of the incumbent bargaining agent is filed before the Department of Labor and Employment within the sixty-day period before the expiration of the collective bargaining agreement, the Med-Arbiter shall automatically order an election by secret ballot when the verified petition is supported by the written consent of at least twenty-five percent (25%) of all the employees in the bargaining unit to ascertain the will of the employees in the appropriate bargaining unit. That is the first sentence. That answers the question when is there an automatic certification election in an organized establishment. When? 1. If the petitioner filed it within 60 days prior to the expiration of the CBA and 2. It has the signature support of at least 25% of those covered in the BU. Remember this is an organized establishment. They have a union representing the BU; they have a CBA, but it is about to expire. It is within the 60 day expiration date (or the so-called freedom period).. within that period, any union, as long as it is legitimate, can file a petition challenging the representation status of the incumbent who is administering the existing CBA. If he wants an automatic election, he must convince 25% of the BU to support that petition -- sign it. If he does that, then the Med-Arbiter no longer has any discretion to grant or deny the petition. He must order the conduct of certification election. That is in organized establishment. Now let us first go to Art. 257; let us not yet finish Art. 256. Here [in Art. 257] it is unorganized. The BU is not yet represented.. virgin unit, wala pa jud representation ana. ART. 257. Petitions in unorganized establishments. - In any establishment where there is no certified bargaining agent, a certification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by a legitimate labor organization. (As amended by Section 24, Republic Act No. 6715, March 21, 1989). So, question: When you petition for certification election in an unorganized establishment -- a bargaining unit that has yet no exclusive bargaining agent; no existing CBA -- are you obliged to support that petition with signatures from employees covered by the BU? No, you are not. There is no need for any signature support, unlike the organized establishment. In unorganized, there is no need for signature support. What is the effect if you file a petition and you are a legitimate labor organization? What should the Med-Arbiter do? The Med-Arbiter should automatically order the conduct of certification election.
26
Is that correct? Can the Med-Arbiter do that? Theoretically, yes. But before you file for a certification election, you must include there proof of service to the ER. The ER is given a copy of the petition. The ER who looks at the petition may not agree to the description of the BU, if so, he files an opposition. So the Med-Arbiter has to determine the appropriateness of the BU. That is what delays what would otherwise be by explicit command of 247, an automatic certification. That is what happened in Belyca. If the er does not agree to the definition of the BU, mao na ang makalangan. Because the ER has a legitimate reason to intervene in the petition for certification election when it comes to the bargaining unit; when it comes to the configuration. So the answer therefore to the question: what is automatic certification election? What is the policy of automatic certification? You must distinguish your answer. In an organized establishment, this is the rule; in an unorganized establishment, this is the rule. It is not just one answer, because under the law, there are two provisions dealing with that. So we go to the IRR to see what should be the contents in a petition for certification election. Rule 8, Sec. 4: Form and Contents of a certification election. Sec. 4. The petition shall be in writing, verified under oath by the president of petitioning labor organization. Where the petition is filed by a federation or national union, it shall be verified under aoth by the president or its duly authorized representative. So that is as to form. So if it is in writing, that is not sufficient. It must be verified. What do you mean by verified-- pag verified gani, notarized na, because you execute a verification. " I, Juan de la Cruz, of legal age, resident of Davao City, having been sworn in accordance with law, do hereby depose to say: x x x 1) That I am the president of XYZ union of ABC Corporation; 2) That I have caused the above petition for certification to be drawn up and I have read the same and the contents thereof are true of my own personal knowledge. In witness thereof, I hereby set my hand on this day x x x" That is verified. If there is no verification, iuli na sa DOLE, dili na i-dismiss. If it is not in correct form, it is as if there was no petition that was filed. So what are the contents? The petition shall contain the following: (a) the name of petitioner, its address, and affilitaion if appropriate, the date and number of its certificate of registration. If the petition is filed by a federation or national union, the date and number of the certificate of registration or certificate of creation of chartered local; (b) the name, address and nature of employer's business; (c) the description of the bargaining unit What could be a possible description? Daily paid production regular workers of ABC Corporation. Klaro. Mga daily na sila, naa sa production, regular na sila -- walay labot ang probationary why? Because status is included in the determination, diba? So you do not include different status. Now, is that final? NO. The Med-Arbiter has to rule on that. That is tentative, and the Med-Arbiter will conduct hearing. He will ask Management, "why do you oppose? Submit a memorandum"; "Union, why is this your bargaining unit, submit a memorandum." So, this is always tentative. (d) the approximate number of employees in the bargaining unit; (e) the names and addresses of other legitimate labor unions in teh bargaining unit; (f) a statement indicating any of the ff. circumstances: 1) that the bargaining unit is unorganized, or there is no registered collective bargaining agreement covering the employees in the bargaining unit; 2) if there exists a duly registered collective bargaining agreement, that the petition is filed within the sixty-day period of such agreement; or 3) if another union had been previously recognized voluntarily or certified in a valid certification, consent or run-off election, that the petition is filed ouside the one-year period from entry of voluntary recognition or conduct of certification or run-off election and no appeal is pending thereon. (g) in an organized establishment, the signature of at least 25% of all employees in the appropriate bargaining unit shall be attached to the petition at the time of its filing; and (h) other relevant facts. Now, the question is: when does the description of the bargaining unit become final? It becomes final upon the order to hold a certificate election. You go now to Sec. 13, Rule 8 Sec. 13. Order/Decision on the petition- Within 10 days fromt eh date of the last hearing, the Med-Arbiter shall issue a formal order granting the petition or a decision denying the same. In organized establishments, however, no order or decision shall be issued by the Med-Arbiter during the freedom period. (To give the chance to other unions) The order granting the conduct of a certification election shall state the following:
27
(a) the name of the employer or establishment; (b) the description of the bargaining unit; (c) x x x Naa ra, mao na na. That is the bargaining unit! Is that final bargaining unit? Is that already really the final decision on the bargaining unit? YES, IF THERE IS NO APPEAL. But if there is an appeal, like in Belyca, then there is a possibility that it will be changed or amended by the higher authorities like the Sec. of Labor or the Supreme Court just like in Belyca. Now, the description of the bargaining unit REALLY becomes final in the order certifying the labor organization that has won the certification election. Take a look at Sec. 20 of Rule 9 Sec. 20. Proclamation and certification of the result of the election. - Within 24 hours from final canvass of votes, there being a valid election, the Election Officer thsall transmit the records of the case to the Med-Arbiter who shall, within the same period from receipt of the minutes and the results of election, issue an order proclaiming the results of the election and certifying the union which obtained a majority of the valid votes cast as the sole and exclusive bargaining agent in the subject bargaining unit, under any of the following conditions: (a) no protest was filed, or even if one was filed, the same was not perfected within the 5 day period for perfection of the protest; (b) no challenge or eligibility issue was raised or, even if one was raised, the resolution of the same will not materially change the results of the elections. The winning union shall have the rights, privileges and obligations of a duly certified collective bagaining agent from the time the certification is issued. Where the majority of the valid votes casts results in "No Union" obtaining the majority, the Med-Arbiter declare such fact in the order. So again, there is a description of the bargaining unit in the certification order. This is where you look at the bargaining unit. These are the primary evidence you will look as evidence of what is the bargaining unit. Why is it important to determine the BU? Because the BU is the final authority. The BU is the principal, the union is only the agent. So it is important to know who the principal is. Now, that is what is important. So we know the documents to look for. So let us ask the question of WHO SHALL FILE A PETITION FOR CERTIFICATION ELECTION. Take a look at Rule 8, Sec 1. Sec. 1: Who may file-- Any legitimate labor organization may file a petition for certification election. So it says any. Now, is that the only one who can file? Take a look at Art. 258 of the Labor Code. Art. 250. When an employer may file the petition -O, why is the employer filing the petition? Is he looking for a whole in the head? Does he want a union in his establishment? Why does he file? Take a look, When requested to bargain collectively, an employer may file a petition for certification election with the Regional Office. If there is no existing registered collective bagaining agreement in the bargaining unit, the Regional Office shall, after hearing, order the conduct of a certification election. (Note: this is the 2nd paragraph of Sec 1, Rule 8) All certification cases shall be decided within twenty (20) working days. The Bureau shall conduct a certification election within twenty (20) days in accordance with the rules and regulations prescribed by the Secretary of Labor. Okay, what is the scenario here? Here is, let us say, the general manager of an establishment, one morning naa nay naghuwat nga mga tao sa iya sa iyang office. "Sir, we have this letter to you.. mao ni ang president sa federation of free workers, mao ni ang vice president, tapos ako ang president sa local. They and us, we are now a Union -- we are legitimate, we are legitimate. And we have everybody. Here is the list of our members. All the production workers amo na tanan.. nagpirma na sila dinhi. So mao ni among proposal sa CBA. Pwede ba nato na sabot-sabuton kay dili pa man na final.. let us sit down and bargain"
28
Now, the ER, walay kalibutan is now being asked to bargain. Now, siguro ba sya na this is the representative of the whole BU? Wala naman sya'y mahimo.. is he forced to sit down? The law gives him a leeway when he is requested to bargain collectively, an er MAY file a petition for certification election. The operative word there is MAY ha.. he MAY file a petition. Mahimo man sad na nga the ER will say, "Pasaylu-a lang ko pero wala man jud ko kaila ninyo.. Unsaon man nako pagkabalo nga kamo ang gadala sa tingog sa workers." Then muingon ang Union (kuno), "Gipili man mi sa trabahante.. giila man mi nila". So ER will say " Na! Wa man ko didto pagpili sa inyo.. wala jud ko kabalo kung kamo ba ang gipili. Maong di sa ko makigsabot sa inyo." Is he obliged to file a petition? The law just says he may file if he wants to find out. Pero buang-buang ka if you file a petition for certification election. Kung ako, dili jud ko mu-file. But the law gives the ER that very rare opportunity to file a petition for certification election when he is requested to bargain collectively. Now, here is my postulate: Aside from the legitimate labor organization and the ER, it is my submission that 25% of the BU in an organized establishment, may file a petition for de-certification election during the 60 day freedom period of an organized establishment. Why? It is not explicit in the Labor Code, but a de-certification election is a proceeding that is recognized by the Supreme Court. It is in LVN vs. Phil Musician's Guild.. a petition for de-certification. Now, this is the situtation: It is an organized establishment. The workers have been under a regime of CBA and then they find it negative actually. So during the freedom period, they are supposed to be free to choose another representative, not the existing bargaining representative. Or, they are also free to go back to a regime where there is no union, because the right to self-organization also includes the right not to join a union. So the 25% there who signed are included in the BU and they want another contest between an existing representative and no union. Mao nay pilian.. dili na a new union vs. the existing representative. The premise is that people want to continue representation. But in this decertification election, the premise is, the people who are asking for the election want to get out of the representation status. They don't want a union. Is that allowed? It is recognized. It is recognized in US jurisprudence; by our SC in LVN vs. Phil Musician's Guild, and there is a new case last year, Burger King. It has to be recognized if the freedom period is a true freedom period. Otherwise, it is not freedom. Because the freedom that the law talks about is the right to form, join or assist a labor organization of you own choice, or not to join any labor organization at all. I don't know whether your commentaries discuss a de-certification election. Acuzena does not discuss that, nor Robles Chan. But that is a legal necessity. So that is another species of certification election -- a petition for de-certification election. It is filed, not by a union, not by the ER, but by a group of EEs belonging in the BU. Now, why do I insist 25%? Because if it is 25%, then the Med-Arbiter no longer has discretion to deny it. It becomes automatic decertification election. But if it is less than 25%, he can deny it by saying that "you have no personality. It should be the union who will file a petition for de-certification election. First, organize yourselves as a union." But precisely that is why we are petitioning because we do not want to have a union. Therefore it has to be 25% because that is the number that removes the discretion from the Med-Arbiter. It becomes automatic. LABREL 07.25.07 Your first exam will cover right of self-organization, unions, and certification election. Let us go through the IRR so that you will get to see the process of certification election. First there is a petition that is filed -- let us assume that it is an unorganized establishment. And you know that there are only two parties that can file if it is an unorganized establishment, and that is a legitimate labor organization or the employer when requested to bargain. Now where should the petitioner file the petition for certification election? Under Rule 8, Sec. 2 Section 2. Where to file. - A petition for certification election shall be filed with the Regional Office which issued the petitioning union's certificate of registration/certificate of creation of chartered local. The petition shall be heard and resolved by the Med-Arbiter. Where two or more petitions involving the same bargaining unit are filed in one Regional Office, the same shall be automatically consolidated with the Med-Arbiter who first acquired jurisdiction. Where the petitions are filed in different Regional Offices, the Regional Office in which the petition was first filed shall exclude all others; in which case, the latter shall indorse the petition to the former for consolidation. Now, this is a little bit more confusing. It says here that a petition for certification election shall be filed with the Regional Office which issued the petitioning union's certificate of registration/certificate of creation of chartered local. That is a little bit confusing because if the original union where the city where it is licensed suddenly the workplace there no longer exists because it is just a small workplace outside the city where the license or certificate was issued, then this rule will not apply. What is important to remember is the old rule, which is, the Regional Office which has jurisdiction over the workplace. That is where you file the petition.
29
Now, we will reserve the question when to file. We saw the contents (SEC 4), then there is a raffling of the case (SEC. 5) just like in the RTC or the MTC, the case is raffled after it is filed. Sec. 6 - There is a notice of preliminary conference immediately after the raffle of the case. Section 6. Notice of preliminary conference. - Immediately after the raffle of the case or receipt of the petition, the same shall be transmitted to the Med-Arbiter, who shall in the same instance prepare and serve upon the petitioning party a notice for preliminary conference. The first preliminary conference shall be scheduled within ten (10) days from receipt of the petition. Within three (3) days from receipt of the petition, the Med-Arbiter shall cause the service of notice for preliminary conference upon the employer and incumbent bargaining agent in the subject bargaining unit directing them to appear before him/her on a date, time and place specified. A copy of the notice of preliminary conference and petition for certification election shall be posted in at least two conspicuous places in the establishment. That is for purposes of informing the ee that are covered within the bargaining unit. Now, if there is any other labor organization that wishes to partake or participate in the certification election, he files a motion for intervention. And he is called an intervenor. And intervenors are numbered according to who was the earliest to file the motion for intervention after the petitioner. Now it is very important, as to the order of filing the motion for intervention. Why? Because later on, in the vote-- in the ballot, you are arranged according to order of filing. 1. Petitioner, 2. Intervenor 1 or forced intervenor , 3. Intervenor 2 and so on. In an organized establishment, when there is an incumbent collective bargaining representative with a CBA, cooling off period (60 days) -there is another union that files a petition for certification. The incumbent union is called a forced intervenor; he is sent a notice of the petition in the same manner and in the same day as the employer. So he is forced to intervene. The employer is forced to respond. So, we have this __1. Petitioner __ 2. Forced Intervenor __3. Intervenor 2 __4. Intervenor 3 __5. No Union And all the worker has to do is to check whom he votes for. Just check. So that is very important. Now, what happens if you have illiterate workers? They cannot read, so your instructions must be very clear. "Kita ka anang papel nga na? Mao na ang balota. Naay mga number diha, ang ikaduha ang atong butohon. Mao na imong checkan ha?!" Now, the preliminary conference, according to Sec. 9 of Rule 8. Section 9. Preliminary Conference; Hearing. - The Med-Arbiter shall conduct a preliminary conference and hearing within ten (10) days from receipt of the petition to determine the following: (a) the bargaining unit to be represented; (b) contending labor unions; (c) possibility of a consent election; (d) existence of any of the bars to certification election under Section 3 of this Rule; (This is when petition for certification election cannot be accepted) and (e) such other matters as may be relevant for the final disposition of the case. Now, CONSENT ELECTION I will check here whether this is in consonance with Sec. 1 Rule 1 of Letter (H) Section 10. Consent Election; Agreement. - In case the contending unions agree to a consent election, the Med-Arbiter shall not issue a formal order calling for the conduct of certification election, but shall enter the fact of the agreement in the minutes of the hearing. The minutes of the hearing shall be signed by the parties and attested to by the Med-Arbiter. The Med-Arbiter shall, immediately thereafter, forward the records of the petition to the Regional Director or his/her authorized representative for the determination of the Election Officer by the contending unions through raffle. The first pre-election conference shall be scheduled within ten (10) days from the date of entry of agreement to conduct consent election. That means that there is no longer any issue as to the bargaining unit. There is no longer any issue as to the contending union-- all will participate. Let us say that there is a consent election agreement, may an additional union still be allowed to participate in the certification election after the agreement of consent election? Can there still be?
30
The answer is YES, for as long as the date of the election has not been set. For as long it is still before the set date of the election, a union who files a motion of intervention is normally accomodated-- should be accomodated. What happens if the contending unions fail to agree and the management refuses to accept the description of the bargaining unit? Section 11. Number of Hearings; Pleadings. - If the contending unions fail to agree to a consent election during the preliminary conference, the Med-Arbiter may conduct as many hearings as he/she may deem necessary, but in no case shall the conduct thereof exceed fifteen (15) days from the date of the scheduled preliminary conference/hearing, after which time the petition shall be considered submitted for decision. The Med-Arbiter shall have control of the proceedings. Postponements or continuances shall be discouraged. Within the same 15-day period within which the petition is heard, the contending labor unions may file such pleadings as they may deem necessary for the immediate resolution of the petition. Extensions of time shall not be entertained. All motions shall be resolved by the Med-Arbiter in the same order or decision granting or denying the petition. What happens if parties are absent during the hearing despite notice? Section 12. Failure to appear despite notice. - The failure of any party to appear in the hearing(s) when notified or to file its pleadings shall be deemed a waiver of its right to be heard. The Med-Arbiter, however, when agreed upon by the parties for meritorious reasons may allow the cancellation of scheduled hearing(s). The cancellation of any scheduled hearing(s) shall not be used as a basis for extending the 15-day period within which to terminate the same. So, once there is a determination of these issue-- the BU, contending labor unions, and the order is already issued to hold the certification election and the date is set.. in the case of an unorganized establishment, management can appeal the order because that is already a final determination of the petition. Just like in Belyca, after the Med-Arbiter issued the order to hold certification elections, Belyca appealed. Now, if there is no appeal, then there is what is called "election hearing" -- the so-called "inclusion or exclusion hearings". In other words, the Med-Arbiter will say, "Union, you submit to us the actual names of the workers within the BU." Then management will be asked to comment and he will not agree.. X is not included, he is outside; also Y, he is not regular. So there will be a hearing as to who is included and who is excluded. So that is called exclusion and inclusion proceeding. Now, take a look at Rule 9, Sec. 5 Section 5. Qualification of voters; inclusion-exclusion. - All employees who are members of the appropriate bargaining unit sought to be represented by the petitioner at the time of the issuance of the order granting the conduct of a certification election shall be eligible to vote. An employee who has been dismissed from work but has contested the legality of the dismissal in a forum of appropriate jurisdiction at the time of the issuance of the order for the conduct of a certification election shall be considered a qualified voter, unless his/her dismissal was declared valid in a final judgment at the time of the conduct of the certification election. In case of disagreement over the voters' list or over the eligibility of voters, all contested voters shall be allowed to vote. But their votes shall be segregated and sealed in individual envelopes in accordance with Sections 10 and 11 of this Rule. All employees who are members of the appropriate bargaining unit -- TAKE A LOOK AT THIS BECAUSE THIS IS A FUNDAMENTAL MISTAKE, BECAUSE A BARGAINING UNIT IS NOT AN ORGANIZATION, IT IS A CONFIGURATION OR AGGRUPATION OF WORKERS, THE UNION IS AN ORGANIZATION. YOU ARE A MEMBER OF A UNION, BUT IF IT IS A BARGAINING UNIT, YOU ARE EITHER INCLUDED OR EXCLUDED. So at the very least, if there are those who are included in the bargaining unit but are in the meantime already dismissed, and the union questions their dismissals. Their votes shall be segregated but they are allowed to vote. If there is a doubt, what is the tendency? To resolve the doubt, the tendency is -- it is for the right of the exercise of right of self-organization. So when several of the ees are under question, you will be allowed to vote but your votes will be segregated. If the result of the unsegregated votes already show a clear victory and even if the segregated votes will be counted in favor of the loser and still it will not change the outcome, then there really is no issue anymore to resolve the doubt. So duha ka-union nagkontra: A ug B. May biya si B ug 50 votes, ang katong contested 5 ra kabuok, bisag ihatag pa na sa pikas kanang 5, then kita na ang end results. Listen to this: In case of disagreement over the voters' list or over the eligibility of voters, all contested voters shall be allowed to vote. But their votes shall be segregated and sealed in individual envelopes in accordance with Sections 10 and 11 of this Rule. That is what is meant.
31
Now, suppose the union and management could not agree as to who should be included in the BU; there is a disagreement. There was an old rule before that the roster of employee two months before the filing of a petition for certification election should be determinative as an objective criteria as to who is included in the BU. That is still followed now as a rule of thumb. Although the rule now is that those contested, even in and out of the BU should be segregated and be allowed to vote. And only when they are material to the decision of the results of the election will they be counted and resolved. So there will be a posting of notice in two conspicuous places (Sec. 6) Section 6. Posting of Notices. - The Election Officer shall cause the posting of notice of election at least ten (10) days before the actual date of the election in two (2) most conspicuous places in the company premises. The notice shall contain: (a) the date and time of the election; (b) names of all contending unions; (c) the description of the bargaining unit and the list of eligible and challenged voters. The posting of the notice of election, the information required to be included therein and the duration of posting cannot be waived by the contending unions or the employer. The purpose of the notice? The order to hold a certification election is there plus the names of all those who are supposed to be included in the BU. So all those within the BU are apprised that their BU must choose w/n it will have representation and who will be the representative, if they should choose to be represented. And then the election officer of DOLE will go to the place and there will be a setting up of polling places, preparation of the ballot, etc. Now, this becomes very relevant if you have a very large workplace, like TADECO. That is 20,000 has -- 5 farms! And each farm will have two polling places. Now, dili man na mahimo na dili simultaneous. If you don't do the voting simultaneously, manawag na tong sa HQ, musulti human na sila ug kinsa daog didto, dili na lang ka muboto. But if you are just a small workplace, let's say NCCC. There is no contest. But if you have a big workplace like DOLE, then you will have simultaneous voting (dapat). Now, if you have many workers, there will be an agreement as to identification. They will present their IDs. Then they will vote. What happens if their id's are all gone? Kanang sa mga kilid nga lugar, panguhaon ug pangbayaran man na nila.. lahi tao man muboto.. unsaon man na? So there will be challenges.. right in the polling place, the representative of one union and the other union will be there, they will be challenge. Dili ni sya mao sa ID! So what happens? His vote will be segregated, and the challenge will be recorded in the minutes of the election proceedings. And the challenges/protest according to Sec. 13: Section 13. Protest; when perfected. - Any party-in-interest may file a protest based on the conduct or mechanics of the election. Such protests shall be recorded in the minutes of the election proceedings. Protests not so raised are deemed waived. The protesting party must formalize its protest with the Med-Arbiter, with specific grounds,arguments and vidence, within five (5) days after the close of the election proceedings. If not recorded in the minutes and formalized within the prescribed period, the protest shall be deemed dropped. So if there is any party who votes and you are challenging there, important that it must be recorded first in the minutes of the proceedings, and after it is recorded it is formalized within 5 days from the close of the proccedings. Then we have the canvassing of the ballots. Sec. 14 Section 14. Canvassing of votes. - The votes shall be counted and tabulated by the Election Officer in the presence of the representatives of the contending unions. Upon completion of the canvass, the Election Officer shall give each representative a copy of the minutes of the election proceedings and results of the election. The ballots and the tally sheets shall be sealed in an envelope and signed by the Election Officer and the representatives of the contending unions and transmitted to the Med- Arbiter, together with the minutes and results of the election, within twenty-four (24) hours from the completion of the canvass. Where the election is conducted in more than one region, consolidation of results shall be made within fifteen (15) days from the conduct thereof. Now, that is also a final order and that can be appealed to the Sec. of Labor or to the Director of the BLR. So, I suggest you read very well Rule 8 and Rule 9 so you have the mechanics of the voting process. Now, what is a run-off election? First, the red letter of the law: Articlec 256
32
When an election which provides for three or more choices results in no choice receiving a majority of the valid votes cast, a run-off election shall be conducted between the labor unions receiving the two highest number of votes: Provided, that the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast. There are several requisites for a run-off election. 1) There must be a valid election. When is there a valid election? IF 50%+1 of the eligible voters of the BU cast their votes. If there are 100 eligible voters, 51 must cast their ballots. Now, who wins in the certification elections? Remember that it is not plurality ha! In the national or local elections, it is plurality -- one who has the highest number of votes. But here, it must be majority of the valid votes cast. The particular choice is that who obtains the majority of the valid votes cast. That means know the category of the votes cast. Out of the votes cast, you have the valid and invalid votes. Invalid votes will constitute as marked ballots; stray ballots. All rules in election laws are applicable here. So only the valid votes counts. Majority of the valid votes cast wins the election. 2) There must be at least three choices; 3) none of the choices obtained majority of the valid votes cast 4) The sum total of the votes received by all contending unions must be at least 50% of the number of votes cast. So you have to distinguish between valid votes cast and votes cast. Valid votes cast is material for who wins the election. And votes cast is material for determination of run-off election. Take note one result of an election is that somebody wins, diba? Another result of an election is a run-off election. So there will be another election, and that will be between the two highest choices. That is a run-off election. A third possibility of an election is a failure of election. That is Sec. 17 of Rule 9 Section 17. Failure of election. - Where the number of votes cast in a certification or consent election is less than the majority of the number of eligible voters and there are no material challenged votes, the Election Officer shall declare a failure of election in the minutes of the election proceedings. There will be another election. So question, is a second certification election necessarily a run-off election? A: It depends on how you answer it. Because a failure of election means that there was really no election. That is why you hold another certification election that is valid.. that is really [now] the first election. If a valid election does not result in any choice receiving majority of the valid votes cast and there are more than 3 choices, and the sum total of the votes cast in favor of the union is more than 50% , then there is run-off election. That is a second valid election between the two highest choices. Now, here is the problem. Suppose the certification election has only two choices: between a union and no union, and then all the votes are valid. And the result is even. Who wins? A: Status quo. You go back to no union because the winner in an election is one who obtains majority of the valid votes cast. That is 50% +1. That election is valid. There is no run-off election and there is no second election because there is no failure of election. So this is the fourth possibility that can result in an election. There is an honest to goodness tie. That will result in the [maintaining of the] status quo. I would just like to bring out to you because somewhere in the rules it says that any question of inclusion in the union petitioning or intervening in a certification election should be threshed out in an inclusion/exclusion proceeding. That is what the rule says. However the SC has come up with a decision in Dunlop vs. Secretary 300 SCRA 120 (1998): The SC says that a union composed of both rank and file and supervisory ees is no labor organization at all. It becomes necessary therefore, anterior to the granting of an order allowing a certification election, to inquire into the composition of any labor organization whenever the status of the labor organization is challenged on the basis of 245 of the LC. So, technically speaking, no Motion To Dismiss a labor union's petition can be accepted just because there are non-ees or non-members included in the union. But once you have managerial ees therein, the SC says that that petitioning body is no longer a union because managers are absolutely prohibited from joining a union. It has no personality to file [a petition]. Remember that under the rules, the only way you can dismiss a petition is if the list of chapters of that federation does not contain that local. Then you can outright dismiss it. Otherwise, it will be considered a challenge to the personality [of the union] -- a collateral attack -which is not allowed. You must file a separate action to nullify or cancel the registration of the union. The exception is Dunlop vs. Sec. There is a managerial ee that is alleged to belong, and he is admitted as a managerial ee, then the petition can be dismissed outright. Of course the dismissal is without prejudice, you can still file a petition subsequently. But that is one of the instances when you can dismiss outright a petition and that will not be considered a collateral attack. All the more reason, federation ka, you file a petition for and in behalf of the local, pagtan-aw sa roster of union, there is no such federation, you can be dismissed right away. The law says only legitimate labor organizations can file a petition for certification election. That is not considered as collateral attack.
33
Please just go over the rules because these are very important. There is another rule that was just in the website of the DOLE amending some of the provisions here. The moment a chapter or a local has submitted all the requirements, it is deemed to have perfected its personality for purposes of filing a petition for certification election, even if it has not been okayed by the DOLE. DOLE will give you a certificate for purposes of filing. That is a new rule. LABREL 07.26.07 In the landmark case of LVN vs. Phil Musician's Guild (1 SCRA) the SC said that the petition for cert. elec is not an adversarial proceeding. So when a legitimate labor org files a petition for cert. elec. it is not in opposition to the rights of management. The relationship of mgt. with respect to the issue in a cert. elec. is that it has nothing to do with it. So the ideal stance of mgt. is that of a by-stander. He merely observes, he takes a look. But he has no direct interest in it, except for the configuration of the BU. So that is his only point of intervention. He is interested in so far as the configuration of the BU. That's why I told you that the title of the case of a petition for cert. elec is: In Re: Petition for Cert. Elec in XYZ Corp. It is not Union A vs. XYZ Corp. If it were, then it would be an adversarial proceedings. As it is it is a fact finding proceeding.. it is a search for a particular fact. And what fact is that? The fact is the choice of the ees covered by the BU. What is their choice? To be represented by a union or not. If they do not want to be represented by a union, then that is that fact. It is ascertained by secret ballot. If it is for representation, then it must be followed by: representation by whom? And it is shown in the ballot that if they choose representation, they choose a particular legitimate labor organization that has been a candidate in the certification election. So, the State merely casts its imprimatur. It merely certifies. If the ees do not choose, then the State has nothing to certifiy. The State does not create an exclusive bargaining agent. Why is it important for the state to certify that this is sole and exclusive bargaining representative? Because it is binding against the whole world, that's why we move to our next topic: WHEN IS A PETITION FOR CERT. ELEC. NOT ALLOWED [TO BE FILED] All these are found in the IRR, Rule 8, Sec 3. When to file-- A petition for certification election may be filed anytime, except x x x Therefore, all you have to know in order to answer that question when is to know the three exceptions. Then you know when it can be filed. Outside of these three rules, you can file a petition for cert. elec. Now, the first rule that is written in the rules is NOT ACCEPTED BY THE SUPREME COURT. It says: (a) when a fact of voluntary recognition has been entered or a valid certification, consent or run-off election has been conducted within the bargaining unit within one (1) year prior to the filing of the petition for certification election. Now, what is incorrect here is the first phrase: " when a fact of voluntary recognition has been entered" -- this is not sanctioned by the SC. And our authority is SAMAHAN NG MGA MANGGAGAWA SA PHERMEX VS. SEC. 286 SCRA 692 (1998) What do you mean by VOLUNTARY RECOGNITION? Voluntary recognition is found in Rule 1, Sec. 1(BBB) (bbb) "Voluntary Recognition" refers to the process by which a legitimate labor union is recognized by the employer as the exclusive bargaining representative or agent in a bargaining unit, reported with the Regional Office in accordance with Rule VII, Section 2 of these Rules. Why is that prohibited by the SC? Becuase the ER here has the initiative and the active role to play.. he recognizes. And as we said by a long line of cases, the SC said that a cert. election is the sole business of the ees. The ER has nothing to do with it. He is a by-stander, and the ideal position should be "hands-off". And if he recognizes, what will prevent the ER from creating a company union. So it is the ER who chooses for the ees which is not an exercise of the right to self-organization. So once it is reported, then the terminology there on the part of the government is DIRECT CERTIFICATION. What the er does is voluntary recognize the union and then it is reported and then there is direct certification. Why is it called direct certification? There is no mediation by means of secret balloting. There is no election, diretso. Bendisyonan dayon sya. "You are the sole and exclusive representative of the BU." Mahimo ba na? You cannot do that. Now, why does the DOLE insist on that, despite the case of Samahan vs. Sec? You read that case because the SC says that ever since the amendment of Labor Code, the system of direct recogniztion has been removed. And yet time and again, DOLE insist, because the DOLE does not know what to do once there is already a ready made CBA that is submitted to it for registration.
34
Sipat ang employer: Instead of unhan ta, unahan na lang nato. Manawag na daan syag union. Sabot sabot na. That is what we call in labor relations as a SWEETHEART CONTRACT. That is what is called a COMPANY UNION. There is a definition in Art 212 (i) (i) "Company union" means any labor organization whose formation, function or administration has been assisted by any act defined as unfair labor practice by this Code. If the ER helps the union become the exclusive bargaining agent, then that is unfair labor practice. Why? because it is interfering in a matter that is the sole prerogative of the workers. So direct certification which follows voluntary recogniztion is branded by the official doctrine of the SC as anathema. It is disallowed. So what is correct in Sec. 3 of Rule 8? When is there a certification year rule? 1. CERTIFICATION YEAR RULE (CYR): The requirements for the certification year rule to apply are: 1. there should have been a valid certification election; 2, w/n the cert. election results in a winning union or no winning union, you count one year from the time the results are promulgated, there can be no petition for cert. elec. that can be entertained within that one year period. What is the reason for the CYR? The reason is if there is no union who wins from the cert. elec. the ER is given rest. Pahulay ba.. so that ER can pursue his legitimate businesses. He is given rest. If you assume the contrary, the ER can be bothered every month with a petition for cert. elec. Bisan pirmi pa mapildi ang union, mahimo kada bulan naa gihapon cert. elec. because 257 requires merely the filing of a petition for cert. elec. in an unorganized establishment and even without signature support, the policy is automatic cert. elec. So the Med-Arbiter will order a cert. elec. So the workers are distracted. Every month naay election! way mahimong trabaho ana. So the rule is: from the time the results of a cert. elec. is announced, whether the result is there is a winner or no union.. from that time, one year, there may be no petition that will be entertained covering the same BU. Now, if a union wins and the proclamation is made, then the reason is for disallowing a petition is to give a chance to the winning union to conclude a CBA with management. It is given ample time. That is a reasonable time. If you assume the contrary, you allow a petition for cert. election even if there is already a winning union to represent the BU, you will not be able to enter into a contract. Why? After one month, naa gihapoy petition, wa pa gani contract, election na sad. He has no chance to enter into a contract. That is why he is given one year. Question: Suppose the results of an election is appealed by the losing union, what happens? Accdg to this rule, the one year period is suspended. It begins only after the final resolution of the appeal. Where an appeal has been filed from the order of the Med-Arbiter certifying the results of the election, the running of the one year period shall be suspended until the decision on the appeal has become final and executory So that is the certification year rule. As long as that applies, there can be no petition for cert. election. How do you bring that out? A petition is filed, you bring that out by producing the proclamation results and it is certified to by the BLR. You submit that together with you motion to dismiss the petition for cert. elec. The Med-Arbiter reading that will ask the petitioner to comment. The only way the only way that the petitioner can successfully overturn that is by saying that, here is the true record, that is not. The certification is fictitious. This alleged certification election is fictitious. That is the only way that it is defeated. If the petitioner can't prove that, then, what follows is the observance of one year certification year rule. Alright, the next rule that prohibits the petition for certification election is the BARGAINING DEADLOCK (Sec. 3, Rule 8 (c)). "When a bargaining deadlock to which an incumbent or certified bargaining agent is a party had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout"; That is called the BARGAINING DEADLOCK RULE. What is the presupposition to that? When does that happen? First, there is a winning union in the certification election that has just taken in the place. The winning union has commenced collective bargaining negotiations with the er covering the appropriate BU where the election was held. Now, the ONE YEAR PERIOD has lapsed. The one year period from the time of the results and promulgation of the election winner, has lapsed. It is already over 1 year, and yet there is no bargaining agreement. What is there? There is a deadlock. The union says give us P10/day increase in our wages in the first year of collective bargaining. Management says, I am willing to give you an increase only of P1 a day or P25/mo. P10 -- P1, P10 -- P1. Wala nay lihok, that is deadlock.
35
Once that occurs and it is over the one year period, there can be no petition for certification election that may be filed. I will give you the history ha. Suppose a union is elected as an exclusive bargaining agent of a bargaining unit. It goes into a negotiation with management. Then the union notices that in the bargaining, they are still far from concluding the terms of their agreement and the one year period is already about to lapse. Once, the 1 year period lapses. There could be somebody who will file a petition for certification election. So, what does the union do? The union declares a deadlock. How does the union declare deadlock? In the olden days, it files a notice of strike. What is the ground? Bargaining deadlock. The moment the union does that, another rule takes over from the Certification Year Rule. It is now the DEADLOCK BAR RULE that takes over. So no other union can come in and file a petition for cert. elec. That is normally how it was in the past. But now, there is no need to file a notice of strike. According to the implementing rules, as long as there is a deadlock, the Deadlock Bar Rule already applies. It says When a bargaining deadlock to which an incumbent or certified bargaining agent is a party had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout. There are already three possibilities: There is a deadlock because: 1. Conciliation is already occurring -- Remember conciliation; who initiates conciliation? when can you say there is conciliation? The moment the board --the National Conciliation and Mediation Board-- comes into the picture. And the board can conciliate and mediate, either because one or both parties, call the Board to help them because there is a deadlock., or even without the help of any of the parties, it [Board] can do so "suas ponte" or , by its own volition, the moment it enters, then the deadlock bar rule applies. Again, no petition for certification election may be made. 2. ARBITRATION 3. SUBJECT OF A VALID NOTICE OF STRIKE OR LOCK OUT Another rule is letter (d) (d) "when a collective bargaining agreement between the employer and a duly recognized or certified bargaining agent has been registered in accordance with Article 231 of the Labor Code. When such collective bargaining agreement is registered, the petition may be filed only within sixty (60) days prior to its expiry". Again, there is a problem with this formulation of the implementing rules, because it says, " when a collective bargaining agreement between the employer and a duly recognized or certified bargaining agent ". The SC will not allow duly recognized, only certified bargaining agent. Wala na niagi og election. Duly recognized by virtue of the case of Samahan vs. Sec. You read that case and you read it very well. I will explain to you the facts. There was this certification election in this company called Phermex.. regular rank-and-file workers, the certification election, resulted to a no union. Who was defeated? NFL. So, after the election, where NFL lost by a few votes.. not a significant margin by a clear lost which is not insurmountable from the point of view of NFL. So NFL was thinking, I will be back one year from now to file a petition. So nagbantay ang NFL. On the anniversary day itself, NFL filed a petition for certification election. One year na.. pagfile sa NFL.. management moved to dismiss. Why? The management produced a CBA that was certified; that was registered. They asked that the petition to be dismissed on this third rule, the (3) CONTRACT BAR RULE. A CBA, that is duly registered bars a petition for certification election, except in the LAST 60 DAYS of that CBA. So, NFL asked, how come there was already a CBA, when 1 year ago, the bargaining unit opted to no union. nganong nikalit lang man nig tungha, naa namay CBA. How come, there was this CBA? The management said, 6 months ago, I recognized this union as the exclusive bargaining agent. There was no election. After it was recognized, we entered into negotiation, after the negotiation, we have a CBA. It was notarized. It was posted in 2 conspicuous places in the workplace, and the workers are beginning to receive the benefits. Therefore, since, it is a certified CBA, in accordance with the rules, it bars the petition. SC says that is BOGUS. Recognition is no longer recognized by the Supreme Court. SC says, it boggles the mind that a workforce that has chosen not to be represented, all of a sudden, w/out having an election, is now represented by a union, and in fact has entered into a CBA with the management. That is certainly CONTRIVED and CONFUSING. Gi mao-mao ra. So SC nullified the CBA, nullified the voluntary recognition and direct certification, and ordered the holding of an election for certification. So, you have the 3 rules: 1) Certification Year Rule 2) Deadlock Bar Rule, 3) Contract Bar Rule. These are the only three (3) instances where no petition for certification election may be entertained. Appropriate Bargaining Unit (ABU) vs. Exclusive Bargaining Agent (EBA) Appropriate Bargaining Unit (ABU) As to ROLE in the CBA ABU is the PRINCIPAL (in a principal-agent role) EEs are BENEFICIARIES of the CBA Exclusive Bargaining Agent (EBA) EBA is the AGENT. The EBA, is the NEGOTIATOR. It does not benefit from the CBA. He negotiates the
36
benefits of the CBA, the Union. It ADMINISTERS THE CBA Union does not perform the CBA; it is an artificial being. Entirely the choice of the EEs Exclusivity of the EBA is binding for as long as schism does not occur
The ABU PERFORMS the CBA
As to CHOICE As to LEGITIMACY 1)As to Role
By intervention of the State; not entirely the choice of the ee or the ER valid for at least 5 year or until there is a substantial supervening fact that occurs
ABU is the PRINCIPAL (in a principal-agent role), while EBA is the AGENT. Mao ni cya and suluguon. In the ABU, the ees therein are the BENEFICIARIES of the CBA, while the EBA, is the NEGOTIATOR. It does not benefit from the CBA. He negotiates the benefits of the CBA, the Union. The ABU PERFORMS the CBA. If the CBA says the working hours is from 8-12 and 1-5. Kinsa man ang mutunga didto, ang union? Dili man na mutrabaho and union. It is an artificial being. It exists only in the law. It is the people that perform the contract. It is the people, the warm bodies in the BU that performs the contract. What is the role of the EBA, ADMINISTERS the contract. He addressed grievances.. etc. We will find that later on. It represents the principal, in adjusting differences that may arise in the CBA. 2) as to CHOICE: Whose choice is the ABU? It is entirely the ees? It must be with the State. In ABU, by the INTERVENTION OF THE STATE. The configuration of the BU is first tentative in the petition. Then there is a hearing. After the hearing, there are adjustments, and finally, the Med-Arbiter orders the holding of the certification election, and there is a description of the bargaining unit. If that is not challenged that becomes final. If there is a challenge we have an appeal and Finally the SC said, that this is the bargaining unit. Like in the case of Belyca. Therefore, it is not entirely the choice of the principal, nor can it be entirely the choice of the employer, it must be BY THE INTERVENTION OF THE STATE. How about EBA? The Choice of the agent is ENTIRELY THE EMPLOYEES. That is why Certification election is none of the business of the er. The er must assume a bystander role; hands off policy. If it is the choice of the er, what happens? It becomes a COMPANY UNION, under 212. It is prohibited. 3) as to its LEGITIMACY The ABU is valid for at least 5 year or until there is a substantial supervening fact that occurs. Remember, What I told you? Separate BUs, now that they are reduced into small numbers, there is a move to consolidate them into one. In other words, there is something that happens during the collective bargaining period covered by the CBA. But normally, they are valid for 5 years. In the EBA, it is still subject to schism. In other words, even if the EBA is exclusive for 5 years, if there is an overwhelming majority of the ABU that rejects the union then according to the SC in the landmark case of Litex v. Edu Bala (79 scra 88,1977). a referendum s hould be had in determining whether the Union still has the allegiance of the overwhelming majority of the bargaining unit. So that is another kind of calling of a election; when a schism occurs. Ingani man gud na ha.. Naay mga Buang2 na union, magpapili na sila, pagka pili nila, muad2 dayon cla sa mgt. unsa kaha kung i-advance nlng and union dues namo? Ingon management, OK. Pag makuha na nila, pasagdan na nila ang ABU. Nahanaw na ang union. Binuang man diay ni atong gipili, mangita tag lain! Then management says, unsay mangitag lain? Exclusive na sila!. Can you do that? Sc said the welfare of the common worker is supreme that is why you should read the case of Benguet Consolidated Mines v. Benguet EEs, then you will find our, when schism occurs. Naa pay CBA, buwag na tanan. Alsa na tanan kay wa namay union. Daghan na gud nangamatay didto sa ilalom sa mines where they dig for gold (Josh Harnet!). Now, here the SC said, even during the lifetime of the bargaining agreement, during its lifetime, they can change unions, and yet the bargaining agreement will remain. And the new choice will just step into the shoes of the old Exclusive Bargaining Agent. And then Bargaining unit will continue as it is. That is one of the few exception that the exclusivity of the bargaining agent is final and binding, upon all and sundry, for as long as a schism does not occur. LABREL 07.27.07 So we have seen the last time the three instances where a certification election may not be filed. First, is the CERTIFICATION YEAR RULE Second, the DEADLOCK BAR RULE Third, is the CONTRACT BAR RULE These rules are all enunciated in the IRR, Rule 8, Sec. 3 We know from Art. 256 that in an organized establishment it is material w/n a petition is supported by the signature of the ees covered by the BU.
37
If the petition is supported by 25% of the ees covered by the BU, then the Med-Arbiter no longer has discretion but to grant the certification election. Now, the issue is, when should the 25% support be met? It is upon the filing necessary? Or can it be supplied subsequent to the filing? Or in a piece-meal basis -- let us say Union A has 5% and then Union B moves to intervene and has also 5% and another Union C has 5 %? The SC says that it does not have to be met upon the filing of a petition because precisely certification election is a fact finding proceeding. It is not adversarial. Now, can you file a motion for intervention without the signature support? And the SC says yes, you can. Now, can the MA grant a certification election in an organized establishment even if there is less than 25% support or even if there is none? And the SC says, yes, they can. It is within the discretion of the MA to grant. Suppose the incumbent union subsequently presents, in their answer to the petition for certification election, affidavits of those who support the petition, and the affidavits are to the effect that they are withdrawing support from the petitioner. And they are maintaining their loyalty to the incumbent. Is that allowed? The SC said that the best way to determine whether or not revocations or taking back of signature support are genuine is by holding certification elections. If you are the incumbent and you say that you have the return the allegiance to you, then you will not be afraid of a certification election because all the workers that are said to have supported petitioner are now supporting you. So, the best way to determine the choice of the workers is by holding a certification election. That is the ruling in the SC. Before, SC made a distinction. The retractions have to be dated before the filing for certification elections. If the retractions were dated after the filing then the retractions are prima facie presumed to be coerced because the ER and the incumbent already know that there is a petition. So you can already pressure those who sign because you already know who are supporting petitioner. But if the retraction is dated before the filing of the petition, it is presumed that the er and the incumbent do not know who are supporting the petitioner. But now, there is no longer any distinction. The best way to determine is to hold a certification election. And by way of secret ballot you will know who has the allegiance of the workers. In an unorganized establishment, signature support is not material. For as long as it does not fall within any of the three instances where petitions are prohibited, then the MA has no choice but to order the holding of a certification elections. Why is there automatic certification elections in an unorganized establishment? Accdg. to the SC, the right to self-organization is already recognized under the Constitution, so therefore, the bias is towards the exercise of that right. They must be given a chance to exercise that. So hold a certification election. The moment there is a filing of a petition in an unorganized establishment, the tendency is hold a certification election so that we will determine and know w/n the bargaining unit is choosing a representation who should represent the BU. So, what is the bias of the law? Towards the exercise of the right to self-organization. Remember, the bias is not towards unionizing. The bias is towards exercise of self-organization. Why? Because the right to s.o. involves the right to join a union and the right not to join a union. To make their will known. That is the bias of the law, and that should be how the SC or any labor tribunal should decide. Now, what of the three rules covers an unorganized establishment? Certification year rule? Deadlock bar rule? Contract bar rule? Is the Contract bar rule applicable in an unorganized establishment? Of course no, because if you have a CBA, that means that it is an organized establishment. Is that true? Not necessarily. The SC has made it clear now that just because an er has a union does not mean that it is organized. It could still be unorganized as to the BU. Let us say XYZ Manufacturing Corporation. The rank and file already have an incumbent exclusive bargaining agent and there is a CBA which is certified. All of a sudden, the supervisors filed a petition for certification election. Q: Are we talking here of unorganized or organized? A: We are talking about an unorganized establishment because as to the BU of the supervisors, it is still unorganized. So, the petition does not require signature support. When you talk about organized establishment, it must be as to the particular bargaining unit. It must not be as to the ER. It must be as to the BU. Please remember that! Now, w/ respect to the BU therefore, as to the 3 rules, the unorganized establishment is only possibly covered by the CERTIFICATION YEAR RULE.
38
Once you have deadlock, that means that the BU is already engaged in collective bargaining negotiations. There is already an exclusive bargaining agent, because if you don't have an exclusive bargaining agent, you don't have negotiations. If you have a contract that bars a petition, that means that it is already with a representative and there is already a CBA that is being administered, and is the law of the particular CBA. That is the meaning of organized and unorganized. Q: May a CBA which is not registered bar a petition for certification election? We will later on find out that after the signing of the CBA, the parties have 30 days to register the CBA with DOLE. And the contract bar rule is to the effect that it is a certified CBA that bars a petition for cert. elec. Suppose a CBA is entered into but is not registered. The BLR is supposed to maintain a registry of CBA. Suppose it is not registered, does it bar? Case: PLANTERS PRODUCTS BANK VS. NLRC the SC said that for as long as a CBA grants substantial benefits -- meaning benefits more than labor standards benefit- and have been in effect for a considerable length of time, that CBA, although not registered, bars a petition for certification election. It is a valid CBA, it is the law between the parties, and it can no longer be set aside just because it is not registered. That is the case of TACUSIT vs. Curra-Ferrer Calleja 205 SCRA 478 (1992 ). and also CONFEDERATION OF CITIZENS OF LABOR VS. NLRC 60 SCRA 460 (1974). Let me just assign to you this landmark case of DIVINE WORD UNIVERSITY VS. SEC. 213 SCRA 759 (1992). 2 Facts of the case: There was a certification elec, the independent union of the faculty won. So they were certified as exclusive bargaining agent. The president of the union presented bargaining proposals to the university admin. But after he presented, the president died. Subsequently, the VP or any of the officers of the union did not do anything, so nothing happened. 3 years later, the Pres. of the Univ. received a new set of bargaining proposals. This time it was presented by representatives of ALU. ALU claims that the independent union of the Univ has affiliated itself with them, and now it was presenting its proposals. What did the univ do? It said, well and good, let me study these proposals. And after a number of days, ALU came back and said what are we going to do. The Univ pres. said lets meet tomorrow and start the process of negotiation. When they met the following day, unknown to the union, the lawyer of univ filed a petition for certification election. So the next day, management says I can no longer meet you because I want to know the results of the certification election. Is that correct? Because later on the SC found that management was in bad faith. It proposes to negotiate to the representative, yet by filing a petition for certification, it holds [question mark] the representation status of the union. And so management was held guilty of ULP. And that is why management lost the case. And the back demands of the union were granted by Sec of DOLE. All the back demands. But think about this ha: The first proposal from the Union was not acted upon, there was a lapse of three, then another proposal was given by ALU. Now, what happens if management says, "I am very sorry the one that was certified was the first union. You ALU are not certified, therefore how can we deal with you?" Management could have said that. Or "I still don't know whether you are the representative of the BU.. frankly, I doubt you still represent the BU because it has been three years. Certification year rule has lapsed, there is no dead lock, there is no case, there is no notice of strike. Therefore, how can we begin to bargain with you? So why don't you file a certification of election." But the management made a mistake. It recognized ALU, based on the past recognition. We will bargain with you (ALU), and then that was the time that they filed a petition for certification election. Accdg. to SC that is BAD FAITH. So, this case is the transition to our next topic: COLLECTIVE BARGAINING When does Collective Bargaining (CB) begin? Begin as what? CB can either be a duty to bargain collectively or it can be a right. CB as a right is understandable as a right of the EEs. Why? Because before there is CB, there are individual contracts of employment. How many contracts of employment are there? There are as many contracts as there are employees, because each ee has his contract with mgt. One there is a CBA, all individual contracts cease. There are no more individual contracts, only this mother contract that covers the entire BU -- remember, not only the members of the union ha, but the entire BU. So when does CB begin? There is a very famous case: Kiok Loy (Sweden Ice Cream) vs. NLRC 141 SCRA 179 (1986) There was a certification election (CE). The Union won the CE and the Union submitted bargaining proposal to management. And then mgt. just did not respond.. mgt. did not act at all. From month to month, mgt. did not respond despite follow ups by the Union. Now, finally, the Union as the EBA, went en masse to the administration office.
See Annex
39
Mgt. responded by stonewalling (?) -- wala nitingog. And then it filed a case of illegal strike on the part of the Union because they left their working stations, they left en masse and went to the administration building holding a protest. So mgt. filed an illegal strike complaint and dismissed all the leaders of the Union. Now, finally the case went all the way to the SC. The ponencia of the case is the famous J. Serafin Cuevas. Here, J. Cuevas laid down the requirements on when the duty to bargain begins. The duty to bargain begins when the Union is the majority representative of the BU and it possesses proof of majority representation, and it has submitted bargaining proposals. There are three requisites: 1. The Union is the majority representative of the BU. 2. It has proof that it possesses majority representation 3. It has submitted bargaining proposals. Now the early part are the first two? Nganong lahi man nang majority representative ug proof? You can only understand that if you go back to Divine Word Univ. vs. Sec case. (Very very important case!) Ingon ang union didto, napili man mi therefore we have majority representation. Then mgt. will say "Give us proof that you are majority representative". Why are you asking for proof? Kay three years ago pa man to napili mo, kamo pa ba gihapon ang representative karon? You're commentators do not explain that. That's why you read Kiok Loy. Kay wa man jud nitubag ang mgt.-- the decision of the Sec. of Labor (since it assumed jurisdiction kay nagstrike man), kay wa man mo (mgt) mutubag, and under the law you have the duty to bargain, the bargaining proposals will be the CBA. Tan-awa ra na ha.. an agreement is supposed to be a meeting of minds, and yet the Sec says that this one (the proposals) will be the agreement. Now, did the SC accept that? YES. The Dept. of Labor Sec has the power to do that. That is the meaning of coercive measure of CB. The ER is no longer at liberty whether to sit down with the union or not. He MUST SIT DOWN and NEGOTIATE with the Union. If he does not, that is the consequence -- the proposals of the Union, because they were found not to be by themselves unreasonable, that is now the CBA. Our laws are derived from the USA, there is no decision in the US where the SC or the NLRB has unilaterally said that this is the agreement. Because it is a contradiction in terms, is it not? Wa man sila ga-agree, how do you say that is the agreement. But that was done by the SC under the pen of J. Cuevas in Kiok Loy. Kiok Loy decision has not been abrogated. And in fact it has been reiterated in a new case: GEN. MILLINGS CORP. VS CA 422 SCRA 514 [2004] The ruling in Gen Milling Corp quotes Kiok Loy and it also refers to Divine Word of Tacloban 213 SCRA 759, (1992). Now, let me bring to your attention Art. 250. It says procedure in CBA. ART. 250. Procedure in collective bargaining. - The following procedures shall be observed in collective bargaining: (a) When a party desires to negotiate an agreement, it shall serve a written notice upon the other party with a statement of its proposals. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice; Now, let me point to your attention that Art. 250 does NOT say "When a UNION desires to negotiate...". It says party. Why does it say a party? Technically speaking, either the management or the Union can initiate the negotiation for a CBA. But normally, management will never initiate. Why? Because without a CBA, the situation favors mgt. Without CBA, there are individual contracts of employment. And individual contracts of employment are normally contracts of adhesion. You are just told what the terms and conditions are... " Day, mao ni imong sweldo, mao ni ang imong manager, kaning adlawa ka mureport.. so mao na ni ang terms and conditions sa imong panarbaho dire. Hala pirma dire sa conforme". That is a contract of adhesion.. you are left with no choice but to accept it or reject it. Mahimo lang nang contract nga give and take if you are a highly skilled worker. You are sought after because you are, let us say, a computer wizard. So muingon ka na sige, mao lang ni akong oras nga maikahatag ha kay naa pako lain trabahuon. Muabot ko 8 -10pm sa gabii, akong per hour P300.00 and naa ko pagkaon ha pag-abot.. so unsa man? And mgt. says okay..So that is a mutual contract because the market employer demands you. But if you are a regular/ordinary worker, normally it is a contract of adhesion. The terms of the agreement are already listed down, and you're choice is accept or not. So which would the ER prefer? CB or individual contract? Individual contract jud. Their (ees) right to collective bargaining is always associated with the union. It is the union that usually asserts the right against management. And it is management who normally exercises or has the duty to bargain. So management must sit. It has the duty to bargain. But know that CB is both a right and a duty.
40
So the moment that the proposals are furnished, assuming that you are the collective bargaining agent, it says that the other party shall make a reply thereto not later than 10 calendar days from receipt of notice. So management must respond. If management does not do anything, then Kiok Loy ruling comes in. (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 (National Conciliation and Mediation 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. Now, let me bring to your attention Art. 242(c) because there are some who says that the duty to bargain begins even earlier than what Art. 250 and Kiok Loy says. Art. 242 x x x (c) To be furnished by the employer, upon written request, with its annual audited financial statements, including the balance sheet and the profit and loss statement, within thirty (30) calendar days from the date of receipt of the request, after the union has been duly recognized by the employer or certified as the sole and exclusive bargaining representative of the employees in the bargaining unit, x x x So even before negotiations have begun, even before proposals are drawn up, the Union--who is now the EBA-- can write a letter to mgt and say: "Give me copies of your latest audited financial statements". Now, is the obligation of mgt. to furnish the union with its audited financial statement not part of the duty to bargain? Has bargaining already begun? Remember Art. 242(c) is an addition of Sec. 17 of RA 6715. Whereas, Art. 250 is still of the old Labor Law, PD 442. So, has the duty to bargain been moved earlier? That is not answered by the SC yet.. in this latest case of Gen. Milling vs. NLRC, the SC enumerated the instances when there is a duty to bargain. You read that and you will see the instances, but it did not mention Art. 242(c). So what if that is not the beginning of the duty to bargain? The effect is, if management does not comply, it cannot be penalized. Magpabungol2x sya, di sya maghatag ug financial statements, then the union has no recourse to compel management to furnish it with the latest audited financial statements which are supposed to aid the union in drawing up reasonable proposals/demands. If the duty has not yet arisen in this case, then the Union cannot really compel the mgt. to grant its request. So please read those cases. Lab Rel 08.01.07 The question is raised if whether or not there can be bad faith bargaining if there is already a CBA that exists. There is already a CBA that has been signed, can there still be bad faith? The question was answered in Gen. Millling Corp. vs CA. (2004) But before that, it is important to go over the case of Rep. Savings Bank vs CIR 21 SCRA 226 (1967) . You remember the facts of the case? The union president wrote the president of the Bank accusing the Pres. of the Bank of arbitrariness in his management, and what is more he berates the president of the bank for immorality. The letter charged the bank president of going to the US to attend a conference on rural banking, and in going there, he was not alone, but brought along his secretary, instead of bringing people who would stand to benefit by the additional knowledge in rural banking. So the letter went on and on and signed by the president and the members of the board of the Union. What did the pres. of the bank do? He had the union president investigated for maligning him in the letter. And after investigation, they were fired for holding the management in bad repute. So the union filed an illegal dismissal complaint. The Supreme Court found in favor of the president and members of the union. Accdg. to the SC, CB does not stop with the CBA. IF there are complaints, the mgt must immediately respond to these complaints and adjust grievances. CB as a process does not end with collective bargaining, it continues; it is a never-ending process. Then the SC quotes the Labor Code Art. 253 ART. 253. Duty to bargain collectively when there exists a collective bargaining agreement. - When there is a collective bargaining agreement, the duty to bargain collectively shall also mean : (these are the aspects of the duty to bargain collectively if there is a CBA)
41
1. that neither party shall terminate nor modify such agreement during its lifetime . It is a negative aspect.. that which you should not do: end the CBA or alter the CBA. 2. However, either party can serve a written notice to terminate or modify the agreement at least sixty (60) days prior to its expiration date. Requests for the renegotiation of CBA within 60 days prior to its expiration. That is the exception to the rule that you cannot change the CBA. You can ask for changes but for suceeding CBAs, and you can do so as early as 60 days prior to the expiration of the CBA. 3. It shall be the duty of both parties to keep the status quo and 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. Maintain the status quo; not to terminate; not to amend. Exception to the rule that you cannot amend: You can amend if it is in favor of the Union. You increase the salary -- kinsa man di musugot ana? Nausab ang CBA pero mas dako kag kuha. You can change it. In labor relations, that is called: FRACTIONAL BARGAINING-- the change that gradually occurs slowly because of the actual practice of the ER, which in fact increases the benefits that are provided by the CBA. You are allowed to do that because it is in favor of the workers. What about the complaint of the Bank president that he was being maligned because of the written accusations of the union president? The SC says that you are not any more maligned than an accused is maligned by the information that the prosecutor files before the court which says that you "maliciously, willfully, deliberately did there and then kill x x x.." And the information in fact maligns the accused. So necessarily you have to use negative language in the complaint, because the law mandates you to categorize the acts which constitute your complaints, and that cannot be libel or defamation because that is required by law. Now, in Gen. Milling vs. CA, the question of bad faith bargaining arose because accdg. to the labor code Art. 253-A which is an addition by RA 6715: ART. 253-A. Terms of a collective bargaining agreement. - Any Collective Bargaining Agreement that the parties may enter into shall, insofar as the representation aspect is concerned, be for a term of five (5) years. So the term of a CBA is necessarily 5 years. No petition questioning the majority status of the incumbent bargaining agent shall be entertained and no certification election shall be conducted by the Department of Labor and Employment outside of the sixty-day period immediately before the date of expiry of such five-year term of the Collective Bargaining Agreement. That is the contract bar rule All other provisions of the Collective Bargaining Agreement shall be renegotiated not later than three (3) years after its execution. Any agreement on such other provisions of the Collective Bargaining Agreement entered into within six (6) months from the date of expiry of the term of such other provisions as fixed in such Collective Bargaining Agreement, shall retroact to the day immediately following such date. If any such agreement is entered into beyond six months, the parties shall agree on the duration of retroactivity thereof. In case of a deadlock in the renegotiation of the Collective Bargaining Agreement, the parties may exercise their rights under this Code. \So 5 years as to the representation aspect. Before the end of the 3rd year, you can renegotiate all other provisions upto the 5th year. Now, so before the end of the 3rd year of the CBA, you can submit your proposals to change the provisions of year 4 and year 5. If you do not, then whatever is agreed upon on year 4 and 5 will remain, you cannot renegotiate. In other words, there is already a complete agreement of 5 years. What happens if management does not respond to the proposals that have been submitted before the end of the 3rd year? That is what happened in Gen. Milling vs. CA. And because Gen. Milling did not respond, the SC said that it is guilty of bad faith bargaining. Remember there is already a CBA ha, and that CBA is not about to end, it still has 2 years to go. There is an attempt to renegotiate year 4 and 5, and yet Gen. Milling does not respond, and it was found guilty of ULP for its refusal to bargain collectively. This is what the SC says: "The law mandates that the representation provision of a CBA should last for five years. The relation between labor and management should be undisturbed until the last 60 days of the fifth year. Hence, it is indisputable that when the union requested for a renegotiation of the economic terms of the CBA on November 29, 1991, it was still the certified collective bargaining agent of the workers, because it was
42
seeking said renegotiation within five (5) years from the date of effectivity of the CBA on December 1, 1988. The unions proposal was also submitted within the prescribed 3-year period from the date of effectivity of the CBA, albeit just before the last day of said period. It was obvious that GMC had no valid reason to refuse to negotiate in good faith with the union. For refusing to send a counter-proposal to the union and to bargain anew on the economic terms of the CBA, the company committed an unfair labor practice under Article 248 of the Labor Code" Now, what is the consequence if you refuse to bargain? You are guilty of ULP in this situation-- 3rd year of the CBA. The SC says: "we hold that the Court of Appeals did not commit grave abuse of discretion amounting to lack or excess of jurisdiction when it imposed on GMC, after it had committed unfair labor practice, the draft CBA proposed by the union for the remaining two (2) years of the duration of the original CBA." Once again the proposal becomes the CBA for the last two years.. That is the ruling of the SC in this case. This ruling was explicitly made with a view of establishing doctrine. The SC says that "We carefully note, however, that as strictly distinguished from the facts of this case, there was no pre-existing CBA between the parties in Kiok Loy and Divine Word University of Tacloban. Nonetheless, we deem it proper to apply in this case the rationale of the doctrine in the said two cases. To rule otherwise would be to allow GMC to have its cake and eat it too." The SC further says that there are 5 instances when there is a duty to bargain . That's why this case is so important. What are these instances? 1. Art 124: ER and Union shall negotiate to correct the distortions. What is that? Wage distortions (WD). When WD occurs, and there is a union and mgt, then the issue of wage distortion becomes a matter for negotiation for an adjustment. It becomes a grievance and they should negotiate. 2. Art. 251: Duty to bargain collectively in the absence of collective bargaining agreements. - In the absence of an agreement or other voluntary arrangement providing for a more expeditious manner of collective bargaining, it shall be the duty of employer and the representatives of the employees to bargain collectively in accordance with the provisions of this Code. 3. Art. 252-- that is the duty to bargain when there is yet no CBA, when you are negotiating a CBA That is 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." 4. Art. 253 -- The duty to bargain.. neither party shall terminate or modify such agreement, but any party may submit any proposals within the 60 day period.. 5. Art. 253-A- All other provisions of the Collective Bargaining Agreement shall be renegotiated not later than three (3) years after its execution." Now it is my submission, however, that in this last instance (Art. 253-a), the duty to bargain must be exercised only once. In other words, the law says you can renegotiate year 4 and 5 before year 3 ends. Before year 3 ends.. Now, suppose you've been asking for renegotiations before year 2 ends, is that allowed? YES! as long as it does not cover years 2 and 3, but years 4 and 5. Once you have agreed or renegotiated the terms and conditions covering years 4 and 5, you cannot say that before year 3 ends, naa nasad ka bag-ong proposals. It is my submission that you can only renegotiate only once, otherwise, wala nay kahumanan. It is true that the duty to bargain does not end with a CBA, but you cannot just renegotiate and negotiate until kingdom come. Where is that found? That is not found in your book but that is the essence. Because otherwise, you cannot pinpoint when the duty occurs and when it ends. You know why GMC refused to negotiate? It said that the mandatory adverb (in 253-A) does not refer to the word to negotiate. It refers to the time limit that you must negotiate it not later than the end of 3 years. It does not refer to the duty to bargain. So "shall be negotiated" does not refer to the verb negotiating, but the time limit. Kinahanglan imo ning irenew sa dili pa maupos ang tulo ka tuig. The mandatory provision there refers to the end of three years. That is why there is no duty to negotiate. Now, according to the SC, this duty (in 253-A) is even more serious than the duty to negotiate the CBA during the 60 day freedom period which the SC said that an er does so at his own risk. What is the reason? When one of the parties sends before the end of the 5th year-- the 60 day freedom period is the last 60 days of the 5 years--
43
253 says that either party can send proposal if it wishes to renegotiate. However, either party can serve a written notice to terminate or modify the agreement at least sixty (60) days prior to its expiration date. It shall be the duty of both parties to keep the status quo and 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. But you can initiate the negotiations for the succeeding CBA. Now, question: Is there a duty to bargain? Can you afford to say "No, dili ko magnegotiate ana"? YES! Because the 60 day is FREEDOM PERIOD. Suppose there is another union that files a petition for CE and an election is held and the incumbent loses? So wala gihapon to imong negotiations. So the issue is do you have a duty to bargain during this freedom period? And the answer is NO. That is the case of ASSOCIATED LABOR UNION VS PURA FERRER-CALLEJA 179 SCRA 127 (1989) Purra Ferrer-Calleja says that the effect of an early agreement -- the representation case shall not be adversely affected by a CBA registered before or during the 60 days of the subsisting agreement or during the pendency of the representation status. So if you do renegotiate during the 60 day period, accdg. to the SC, you do so at your own risk. You are risking that the incumbent will remain in power, because if it does not and a new union wins, then you will have to negotiate again. The renegotiated CBA will be set aside, and you will formulate a new CBA with the new EBA. Three phases of CBA and corresponding duties: NEGOTIATION PHASE 1. meet promptly and expeditiously 2. in good faith 3. for the purpose of drawing up terms and conditions of work in a CBA, but the duty does not include the obligation to agree to a proposal or to make any concession. (Art. 252) ADMINISTRATION PHASE 1. not to terminate 2. not to amend or modify 3. to maintain status quo (Art. 253) 4. (EXERCISED BEFORE THIRD YEAR ENDS:) a. meet promptly and expeditiously b. in good faith c. for purpose of drawing up terms and conditions of work for years 4 and 5 RENEGOTIATION PHASE 1. not to terminate 2. not to amend or modify 3. to maintain status quo (Art. 253) (Automatic hold over) 4. meet promptly and expeditiously 5. in good faith 6. for the purpose of drawing up terms and conditions of work in a new CBA, but the duty does not include the obligation to agree to a proposal or to make any concession.
i. Negotiation phase-- wala pay CBA ini because we presume that this is an unorganized establishment. The duty to bargain here is: 1. meet promptly and expeditiously 2. in good faith 3. for the purpose of drawing up terms and conditions of work in a CBA, but the duty does not include the obligation to agree to a proposal or to make any concession. (Art. 252) ii. Administration phase 1. not to terminate 2. not to amend or modify 3. to maintain status quo (Art. 253) 4. you have the entire duty from 1-3 in the negotiation phase to be exercised before the end of 3rd year. (GMC case). So when it comes to the terms and conditions of work as to the fourth and fifth year, before the end of the third year. iii. Renegotiation phase 1. All admin and negotiation phase duties are loaded here. Even if the CBA is already expired. Because Art. 253, the last sentence: "It shall be the duty of both parties to keep the status quo and 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." There is an automatic hold over. So you have these entire duties: you cannot terminate, modify or amend. You maintain the status quo as to the expired CBA that remains the law of the parties in the employment relationship. But then at the same time, you are negotiating a new CBA to take the place of the expired one, so that's why the entire negotiation phase duties are carried over. This is Art. 252 + Art. 253
Labor Relations: Fr. Nazareno (2008) Transcribed By: Hanniyah Sevilla
44
The duty to bargain does not decrease; rather it keeps on accumulating. In other words, it is not [entirely] true what the SC says that the duty to bargain does not end.. it does not end AND ALSO it keeps accumulating. Now, let me bring out to you two controversial cases which commentators find it difficult to integrate: First, the case is about the term of the CBA, this is an en banc decision: SAN MIGUEL CORP VS. CONFESSOR. This is where the SC quotes the admin. proceedings that surrounded the passage of the Herrera-Veloso law, RA 6715). You read this case because: This is the pitts man! :D This is what he says: Representation is 5 years, but the contract is 3 years from the very start. But the renewal could be another three years. It is in that decision. And Mendoza says that this should be how it should be computed.. the CBA does not afterall turn out to be just 5 years, it is 6 years. Now, what is the rationale? Because he says that it should be 3 years. why? because the purpose of this law to fix it to three years is so that if there is 60 day freedom period-- and there is a negotiation that takes place here and a new union is elected as EBA, he will have to live with mgt. for at least one year with a contract to administer that is not his. This is a period of adjustment so that the new EBA is not under pressure to produce something greater. Kay he must have made so much promises to get elected. So he bids out one year. That is the theory. Is that good? The only thing is, if you put another 5 years, kay naupos naman dire sa start, four years na lang mabilin. dugangan na nimog 1 year kay 6 years man kaha, the 1 year adjustment period, if another bargaining agent is elected, he will have two years to adjust. Until that point that there is an EBA who will have no period within which to negotiate a CBA. That is how crazy Herrera is. And the SC accepted it hook, line and sinker.. makahilak ka. (Original CBA entered into): 1----------------------------3---------------------------5 Renegotiation for 4th and 5th year for another 3 years --------- 6 years (1 year adjustment period) (new CBA) 1--------------------------------------------5 years Before end of 3rd year of NEW CBA (which is actually the 4th year already) a renegotiation is made so add another 3 years. in effect there will be 2 years adjustment period for the next EBA. Second, RIVERA ET. AL VS. ESPIRITU 374 SCRA 351 This is when Joseph Estrada mediated and conciliated between PAL and Lucio Tan. What was the agreement that the management gave? The agreement was that for ten years, there will be no renewal of the CBA. So by mutual agreement to save PAL, there would be no renewal. Now, there were some people who questioned this: We thought that the longest that an LLO is an EBA is 5 years, how can you make it 10 years?! You look for the answer because the answer of the SC is out of this world. The pitts man! The SC says that that is only true if there is a CBA, if there is no CBA, then there is no limit. You read this ha.. LABREL 08.02.07 We have seen the 3 phases of CB: negotiation, administration and renegotiation. During the renegotiation stage, the law says that if a new CBA is concluded within 6 months from the expiration of the preceding contract, then the benefits of the succeeding CBA retroacts to the day immediately following such date. So there is automatic retrospective application. However, if the [new] contract is concluded beyond 6 months of expiration, then it is up to the parties to determine the extent of the retroactivity. ST. LUKES MEDICAL CENTER VS. SEC. where the deadlock of the CBA became the subject of a notice of strike. The union went on strike and subsequently, the Sec. assumed jurisdiction over the dispute. Now, later on we will learn that once the Sec. assumes jurisdiction
45
over a dispute, all strikes are enjoined. They can no longer continue with the strike. So they continue trying to conciliate and mediate, and if it is not possible there will be compulsory arbitration to be taken over by the Sec. So the Secretary decides what should be in the CBA. Now, the decision of the Sec. came more than a year after the expiration of the preceding contract. And in that decision, the Sec. said that this will be the terms and conditions of the CBA, and these terms and conditions are retroactive all the way back to the expiration of the preceding contract. Is that allowed? That he will make retroactive all the terms and conditions of the succeeding contract all the way back to the expiration of the preceding contract? And the SC says, yes because the Sec of DOLE as a compulsory arbitrator, has plenary powers to decide on all the issues -- substantial, material and incidental to the dispute, so as to resolve the dispute between the parties. So take note therefore that that is the exception to the general rule in Art. 253. Now, what are the so-called POST SIGNING FORMALITIES OF THE CBA? These are parts of the CBA which you are familiar with. When you come across a newspaper, picture that says: photo shows the smiling faces of the union and mgt. concluding the CBA. Now, there are still formalities after that. So post signing formalities -- such as: That you must register the CBA with the DOLE, and you can only register it by supplying two copies to the DOLE and a sworn affidavit by Pres. of the union, attested to by the Sec of the union that the CBA was posted in two conspicuous places at the work place. And that the majority of the BU has ratified the CBA --pirma sila tanan, kay uyon man sila. A long standing accepted practice in labor relations in order to convince the constituents of the BU to give their ratification is the CBA provides for a SIGNING BONUS. This is a benefit given to all those, as a sign of good faith of the er, for all those in the BU, for signing the CBA. In which case, if you provide for a signing bonus, nobody will NOT SIGN because they want to get the bonus. That is primary the reason for the signing bonus. Now, once that is done-- it is registered, it is now a certified CBA that bars any and all petitions for CE for the duration of the CBA. That is now a bar. Remember, I told you that in many rare exceptions the SC has said that even though the CBA has not been certified/registered --and the registration fee here is set at P1000.00 found in Art. 231-Art. 231 -x x x x Within thirty (30) days from the execution of a Collective Bargaining Agreement, the parties shall submit copies of the same directly to the Bureau or the Regional Offices of the Department of Labor and Employment for registration, accompanied with verified proofs of its posting in two conspicuous places in the place of work and ratification by the majority of all the workers in the bargaining unit. The Bureau or Regional Offices shall act upon the application for registration of such Collective Bargaining Agreement within five (5) calendar days from receipt thereof. The Regional Offices shall furnish the Bureau with a copy of the Collective Bargaining Agreement within five (5) days from its submission. Now, why does it take them 5 days before issuing such certification? Because the BLR must see to it that the mandatory provisions are there. What are mandatory provisions? For example they must make sure that the CBA contains grievance machineries -- a procedure by which all controversies arising from the CBA will be settled by give and take of the parties. And then it must provide for family planning, and then the regional office here must provide that it does not contain a "no strike, no lock-out" clause. And they will also check the CBA, whether the BU is also the same as the certification order of the DOLE. The Bureau or Regional Office shall assess the employer for every Collective Bargaining Agreement a registration fee of not less than one thousand pesos (P1,000.00) or in any other amount as may be deemed appropriate and necessary by the Secretary of Labor and Employment for the effective and efficient administration of the Voluntary Arbitration Program. Any amount collected under this provision shall accrue to the Special Voluntary Arbitration Fund. The Bureau shall also maintain a file and shall undertake or assist in the publication of all final decisions, orders and awards of the Secretary of Labor and Employment, Regional Directors and the Commission.
46
So those are the post signing formalities that must be ratified. Now, i told you that SC decisions are to the effect that even if the CBA is not certified, as long as the CBA provides for substantial benefits-- clearly higher than labor standards benefits, and that the same has been enjoyed for a substantial period of time, then that CBA even though not certified, bars a petition for certification election.
COLLECTIVE BARGAINING AGREEMENT KNOW ALL MEN BY THESE PRESENT: This CBA entered into by and between: XYZ Corp, duly organized and incorporated under Phil. laws, with principal office address at 123 CM Recto, Davao City, represented hereunder by Pres. Juan Dela Cruz and Human Relations Manager, Pedro Santos, hereinafter referred to as "MANAGEMENT"; and SAMAHAN NG MGA MANGGAGAWA NG XYZ CORP . a duly registered labor organization, with registry number xyz-123 with offices at 1234 Palma Gil st., davao city, represented hereunder by its president so and so and vice president x and y, hereinafter referred to as " UNION";
Now, is it possible for the CBA to provide for just labor standards provisions, i.e. the er shall provide minimum wage? That is deemed in labor relations parlance as a SWEETHEART CONTRACT. And that is considered beneath the dignity of labor. Because you do not enter into a CBA to get what the law already grants you. What is the purpose of the CBA if you only receive labstan benefits?
So immediately, right there and then, the union may be penalized for entering into a sweetheart contract just providing for labstan benefits. And then that may cause the cancellation of the registration of the union. Alright, let us go to some of the regular provisions in a CBA. A CBA is a standard contract and it follows the general form of a contract. That is the simplest way you can put a recognition clause. Know however that the agreement CANNOT expand the bargaining unit. Expand it from what? from the order certifying the union that he is the EBA of this particular BU. Why can't it not expand? Mag-agree diay sila na iapil nalang ang monthly paid workers kay gamay lang man sila..so ibutang na lang na daily and monthly paid workers. Why can you not increase? Because it is a violation of their right to s.o. If they have not participated in the CE, they have not yet exercised their right to s.o. So you cannot expand in order to embrace others who have not yet exercised their right to s.o. Neither can you contract the BU by leaving out certain daily paid workers. Why because you are also violating their right to s.o. because they have already exercised, and accdg. to the votation they want to be represented by this particular union. So the best representation clause is simply to maintain what is said in the certification order. Now, the problem is if you have many other workers who do not belong to that BU, and the practice of management is: Whatever is granted to the BU is granted to everybody. So can the union say that we are therefore de facto representing everyone? So therefore let us expand the BU and include them! Does that stand reason? That was the issue raised in WEISS and CO. vs. NLRC . Does the identity of benefits lead to the necessary legal implication that there is representation? You are certified as EBA of this group of workers, now another group belonging to the same er is awarded the same benefits granted to you after you have bargained for it. Does it mean therefore that you represent them? No, that is not the legal conclusion. The legal conclusion, according to the SC, is that the ER is liberal in granting the same benefits. In other words, the only way that representation can be legally fixes is by certification election and not by identity of benefits. So you read this case. Because there are many lawyers nga dili makaapas ana, even arbiters have a murky notion about it that's why they are overturned. The leading case is INDOPHIL ACRYLIC VS. INDOPHIL. Indophil in their original CBA with the production workers in the plant that was made to undergo CE and which subsequently went to the mgt for negotiation, contained a recognition clause that said: "Management hereby recognizes that the union is the sole and exclusive bargaining representative of the regular workers of indophil, AND OF ALL OTHER WORKERS BELONGING TO WHATEVER PLANTS OR FACTORIES THAT SHALL BE ERECTED IN THE SAME PREMISES . Ila nang gi-anticipate ba.. regular production workers and if there will be another factory that will be erected, the regular production workers there will be represented by this union. What happened? There was another factory that was set up but this time it was not called Indophil
47
Acrylic but Indophil something else. The majority owners of this particular factory were still the same majority owners of the original indophil, and they were still managed by the same management corpo. that managed the first indophil. Can the union now say that these are just formalities? That in fact by the agreement with the er, the union still represent the workers of the 2nd indophil? Now, the workers of the 2nd indophil had their unions that filed a petition for CE. The original union insisted that they (workers of the 2nd indophil) were covered by the CBA first entered into precisely because of the recognition clause. The SC says you are wrong! You are expanding the BU. That's why you must be very clear on what the BU is: you cannot expand it nor contract it. That is recognition clause. Now there are two basic kinds of provisions in the CBA: 1. ECONOMIC/MONETARY PROVISIONS 2. NON-ECONOMIC PROVISIONS And there are others who will add that there is a third kind and that is PERSONAL PROVISIONS SOLELY FOR THE BENEFIT OF THE UNION. Now, what are ECONOMIC PROVISIONS? Those which grant benefits that are denominated monetarily or that may be reduced to their monetary value. So, a provision that says: "Mgt. hereby agrees to grant the workers covered by this agreement a rice allowance of one sack a month." That is in kind diba? One sack. What is the problem in that provision? When you say problem, from whose point of view, ees? or ER? BOTH. From the workers because the NIRC now demands that all benefits reducible to their money equivalent must be taxed. So they will have to pay tax for that and they must declare what kind of rice is given. So kung tagaan kag housing allowance unya balay nang gipapuy-an sa imo, company gabayad, you cannot escape that, you must pay tax on that. So all income, in cash or in kind, reducible to their money equivalent, is subject to tax. On the part of mgt, there is a problem because without your explicit agreement, you are agreeing to an increase of their salaries, not according to the anniversary of increases in the CBA but according to inflation. You have to give one sack, whether that one sack costs 100 pesos or 800 pesos. So those are so called ROLLED-UP costs. So you have recognition clause question on the BU. Remember the differences between ABU and EBU. If it should happen that 3/4 of the ABUs packed their bags and went to Saudi Arabia and napulihan sila ug bag-o, it does not change the representation because the BU has already been predetermined as having made up its mind. All those who entered know before hand what is already agreed upon in the CBA. They are presumed to know even if you have not read the CBA. It is not that you arrive there and you are another person who will change all the agreement that you have entered into. It is the same thing as in corporations. That is precisely the continuity of a juridical person which is separate and distinct from the individual members. Remember: BU is the principal and Union is the agent. If you break up the union into federation and a local or affiliate, the relationship between the local and the federation is principal and agent. The local is the principal, the federation is the agent, that's why the local can break off from the federation at any time. As to the question of representation, let us say you have a CBA and in the CBA it is the federation that is named: Federation of Associated Workers- San Miguel Local-- and then it says every month the management agrees to check off from the workers the equivalent of 1% of his monthly pay as his union dues to be turned over to the union--which is the federation. So what happens if the local during the life of the CBA is so disgusted with the federation that a schism occurs? So lets say 3/4 of the local vote to separate themselves from the federation contrary to what is provided under the constitution and by-laws of the federation, can the Federation continue to insist that because of the CBA, the 1% check off must be remitted to us? You (local) can disaffiliate but the money will still continue to go to us (federation) because that is there in the CBA. FED cannot do that. The right to union dues is premised on representation. The moment you no longer represent, you have no right to union dues even if the CBA says that the check off is to be handed over to you. Now, what is an example of a NON-ECONOMIC (NE)PROVISION?
48
It can be the obligations of the corporation with respect to its ees; the grievance machinery is a non-economic provision and it is mandatory. It gives the procedure on how issues arising from the implementation and interpretation of the CBA shall be addressed. That is an example of a NE provision. Q:why is it important to determine whether or not it is a NE provision or economic provision? A: It is important because when we go to strikes, there can be an economic strike or an ULP strike. An economic strike is a strike based on the ground that the union wants management to grant it a benefit which management is not obliged to grant under the law. Management is made to grant an economic benefit which it is not obliged to grant under the law. Ex: Bank A is under a conservatorship --ordered by the Central Bank because Bank A is unable to maintain a state of liquidity. Now suppose the union president says to the conservator, "Boss, now is the time under the CBA to pay the second installment for the uniform benefit of the bank ees". Because under the CBA, Bank A will provide for uniforms -- one on January and one in July. Then the conservator says I will not grant it. So the union now submits a notice of strike. Now, question, is Bank A under the law obliged to grant, prescinding from the foregoing, the uniform benefits? No, it is not. So what happens? That is now an economic strike because it is based on a demand of an economic provision. That is why you have to know what is an economic provision. Another ex: Suppose the CBA says that mgt. agrees to check off 10% of the salaris of the ees covered by this agreement for union dues and to turn this over the union. Now it so happens that in the union, there is a fight as to the leadership. And the union is split, and each of this faction is now asking for the union dues. Management says, di ko muhatag ana. Ana ang one side, kami lagi ang rightful union nga mudawat ana, tan-awa magstrike mi. So magstrike sila, unsa may ang ground? Non-giving of an economic benefit, isn't it? Is that an economic benefit? That is NOT an economic benefit. That is a PERSONAL CLAUSE FOR THE UNION. It may be reducable in monetary terms, but it is not for the benefit of the ees. It is a personal clause for the union. That is why you must know how to distinguish what is economic, what is non-economic and what is pertinent to the union itself. And these personal clauses-- these are the ones that in case a schism occurs and a new federation comes in, the new federation takes over the new CBA; administers the new CBA. But the SC said in BENGUET CONSOLIDATED MINES VS. BENGUET that this new federation-- this new choice of the workers, is NOT BOUND BY THE PERSONAL CLAUSES IN THE CBA. So "no strike, no lock-out" clause, that is clearly not an economic provision nor a non-economic provision, that is a personal obligation on the part of the union that it will not go on strike on the basis of economic demands. It can only go on strike on the basis of ULP. Because a "no strike" clause does NOT PROHIBIT ULP strikes, it only prohibits economic strikes. Again that is why you must know the kinds of provisions of a CBA. O8.08.07 Okay, we were going through the standard provisions of a CBA, starting with the recognition clause. During the negotiations, you can choose whether to reduce the provision into contract language or you just agree without you reducing the agreement into contract language and later on you do it. There are advantages and disadvantages of both methods. Normally, if you choose to reduce the agreement into contract language, it requires the presence of lawyers. If you have two lawyers there, there will be clashing with terminoligies, etc. So normally, some parties try to dispense with the services of a lawyer. But then they find out that after everything has been agreed upon and it has not been reduced into contract language, there will still be another begining of a debate and you have another problem. So the issue has been raised what is the status of a provision during the negotiations that has been agreed upon and already set aside as agreed, then you move to other items of the proposals and the counter-proposals. What is the status of that particular proposals? So these are tentative agreements during the CBA negotiations but before the conclusion of the CBA and the signature of agreement of the party representative. The exemplifying case there is SAMAHANG MANGGAGAWA SA PLATFORM MANUFACTURING-UNITED WORKERS OF THE PHILIPPINES VS. NLRC 297 SCRA 171
49
So this is what happened. There were negotiations going on, and during the negotiations, there was a wage order that came out. Now, upon the request of the union since the wages are way too low, and the corporation was already doing well, the corporation agreed that the wage order-- which adjusted the minimum wage by a certain amount-- be made as an across the board adjustment to all the workers. Mgt: yes, we will agree. Union: Do you agree to incorporate it in the CBA? M: Yes, I agree, we will incorporate it later. U: Is that really true? (kulet!) M: Yes, yes! U: Why don't you sign that that is really our agreement; sign in this memorandum -- in the minutes of the negotiation. Now, the CBA negotiations went on further for over a month. Until finally there was a final signing, all of a suddent that there was this previously signed agreement signed by the parties in the minutes of the meeting that they failed to incorporate in the CBA. And now the Union demanded from Mgt. that since you agreed to this across the board adjustment, you have to give it now. Mgt changed its mind. No more, we will not do that because that is not there in the CBA. So the Union filed an ULP against mgt for refusal to perform an economic provision, because it is there. And management does not deny that it is there. Now, is mgt. guilty of refusal to implement the CBA? What is the status of that agreement made during the negotiation? SC said MGT is under NO OBLIGATION to grant that agreement. The SC used that cardinal rule in evidence: PAROLE EVIDENCE RULE. Because once you go out of the [written] agreement, you deny the conclusiveness of the written agreement. And second, you render the writing unnecessary since you can still summon up evidence aliunde from any other source, and third you open up the floodgates of fraud. So a CBA is not exempt from the Parole Evidence Rule. Accdg. to the SC, the minutes reflect the proceedings and discussions undertaken in the process of bargaining for workers' benefits, in the same way that the minutes of the court proceedings show what transpired therein. As negotiations, it is both natural for both mgt. and labor to adopt positions; make demands, and offer proposals and counter-proposals. However, nothing is considered final until the parties have reached an agreement. So that was considered as valid but tentative. It could have been traded for something else-- that agreement, because accdg. to the SC, it is usual for parties to assume a position or to agree to a proposal, but since the agreement has not been finalized or written, that can still be traded for another position. That is why that cannot be a source of a strike. Is management guilty of bad faith bargaining by not putting into writing that which had agreed to put into [writing]? The SC says no. In fact, one of management's usual strategy is to agree tentatively as you go along the negotiations with the understanding that nothing is binding until the entire agreement is reached. So that is so contrary to pedestrian common sense. So be sure you remember that. Again, in the CBA which was concluded after a strike was compromised -- you know this strike was called by the union because mgt. refused to comply with the wage order and it is a unionized workplace. The CBA at that time provided for a slightly above minimum wage salaries. But then a new wage order came and raised considerably the minimum wage, so even the CBA was already below min. wage. The union demanded that management implement the wage order. But management refused to do so because accdg. to management they were losing, and if the union insists, the management will close down. The union filed a notice of strike because management was violating the law for not complying with the wage order. So what did management do, it instituted a lock-out. We will not provide work, so they closed. So, after the union had gone on strike for about two months, it was clear that management was not eager to reopen on those terms that the union was demanding, that was why the union approached mgt and said okay, we will agree not to force you to implement the wage order. We are willing to go back to work even at below min. wage and we are even willing to agree to that in writing in the CBA. WE will waive our increases due to the wage orders so that we can just go back to work. So sec. of 3 of CBA-- the Union realizes the Company's closeness to insolvency and as such symphatizes with the company's financial situation. therefore, the UNion has agreed to condone the implementation of the wage orders NCR-02 and NCR-02-A. So they posted it in two conspicuous places and ratified unanimously by the union. But then later on, there were some people who rebelled against the union and they filed a money claims complaint against the management, that they should be given the increases as mandated by the wage orders.
50
So can the complaint be given due course or should it be dismissed? First on the ground that the union is the sole and exclusive representative of the BU and the union has already agreed in the CBA. Second, that these people had already signed the ratification and therefore has already agreed. That is the case of MANILA FASHIONS INCORPORATED VS. NLRC 264 SCRA 104 (1996) The SC said that this provision in the CBA is void. By agreeing to condone the implementation of the wage order, the parties thereby contravened its mandate of increase of 12 pesos effective January 8, 1991. Also as stated by the Labor Arbiter, it is only the Tripartite Wage and Productivity Board that can approve exemptions of an establishment from coverage of a wage order. So when it comes to waiving monetary benefits or other benefits that can reduced into monetary value, the union cannot do so. It is only the individual ee that can waive the same.. so very important ha! SC says: While in negotiations, the union is the EBA, during the administration phase of the CBA, when it is being implemented; when it comes to complaints arising from the CBA, the union is no longer the EBA. Why? Because any group of ee or any single ee can bring a grievance to management. So the single ee is at liberty to bring a grievance. So the union can therefore absolve itself, if it believes that there is no grievance, and it will not bring the grievance for and in behalf of the ee. And the ee cannot compel the union to bring a grievance for and in his behalf because he has or is given a right by the Labor Code to bring his own grievance. So if a union negotiates for a CBA and excludes a certain ee within the BU, that ee can't complain because the union is the EBA during the negotiation stage. But once there is a CBA and you are one of the ees included in the BU, let's say the company disciplines you and you have a grievance because you are now about to be dismissed and you go to the union and the union does not defend you, can you force the union to represent you in a grievance? No, because the labor code says "the union or any group of ees, or any ee for that matter can bring a grievance to management". So you are not without recourse. Now, remember i told you about that problematic case of the term of the CBA? The case is SAN MIGUEL CORP EES UNION-PTGWO vs. CONFESSOR 262 SCRA 81 (1996) . Remember I gave you the case of Indophil? "These agreement shall apply to the company's facilities and corporations and to any extension or expansion thereat" So the citation is INDOPHIL TEXTILE UNION VS. CALICA 205 SCRA 695 (1992) Here is this monetary/economic provision in the CBA: "Should there be any government mandated wage increases and/or allowances, the same shall be over and above the benefits herein granted." Now, there was a wage order that came out. The wage order covered some who were within the BU and others that were not within the BU. And the others who were not within the BU were already receiving higher than the min. wage as increased by the wage order. The union insisted that since the CBA says the mandated wage increases should be over and above the benefits granted here, the management must implement not only the anniversary increases in the CBA but also the wage order for everybody. That is the point of the union. That is the case of CAPITOL WIRELESS INC. VS. MATE 246 SCRA 289 (1995) Now, how should this be interpreted? The SC says that since the wage order specified who among the ees are to receive the statutory wage increases, then the wage order applies only to those mentione therein. The provision of the CBA should be read in harmony with the wage orders whose benefits should be given only to those ees covered. Otherwise, the CBA makes the wage orders more burdensome to this particular er to other ers. The union contends that this interpretation would result to wage distortion, if so Art. 124 which provides for the procedure should be followed now that there is blanket implementation of the wage order more than it actually obliges the ER. Otherwise, the wage order will be harsher to this particular er than to other ers. Now, remember the CBA cannot provide for wage rates lower than the minimum wage rates. The wage rates of a succeeding CBA may be lower than the wage rate provided by the CBA that it succeeded. That is allowed. For instance, the union will agree to a pay cut for and in consideration of the mgt's solemn promise that there will be no lay-off. So the succeeding CBA may provide for wage rates than the preceding one, provided that it is not lower than min. wage. Because in no case must the CBA provide for the wage rates lower than the min. wage because that will be a violation of the law.
51
ST. JOHN'S COLLEGES INC. VS. ST. JOHN'S ACADEMY FACULTY AND EES. UNION 505 SCRA 764 OCTOBER 27, 2006; YNARES-SANTIAGO, 1ST DIV. During the CBA renewal negotiations, ST. John's management (SJM) rejected all the proposals for increase in worker's wages. There was a bargaining deadlock and a notice of strike was filed. And after the observance of the valid period, the strike was conducted. Because it was a school, the Sec. of DOLE assumed jurisdiction over the dispute. The parties did not oppose the assumption of jurisdiction by the Sec. Once the Sec assumes jurisdiction, the picket was lifted and the union members went back to work. Now, since it was the Sec. who assumed jurisdiction; it is him who hears the case, accepts evidence from either side, positions papers, etc. During the pendency of the case before the Sec., board of St. John's Academy unanimously resolved to close the high school because of irreconcilable differences between the school's mgt and the academy's union. Now, some teachers agreed and signed waivers after receiving payment for separation pay. But others filed a ULP complaint for closure in bad faith to get rid of the union. In other words, they were saying that the closing of the school was for no other purpose but to get rid of the union. And so they were claiming illegal ULP dismissal. Now, is the complaint of the workers correct? Di mo ba pwede isara ang school mo kasi naiinis ka sa union? Is that a sin? This is a free country, can you not do that? You can, provided that you do not reopen! Kanang tinuod nga close. The trouble with this school, it reopened one year later. That is an essential fact that so many of the commentators leave out! You have a right to close, kung naiinis ka sa union, di ka pwedeng sabihan na ULP because you are not closing to get rid of the union. You are only getting rid of your business at the union if that happens. Pareha gud nang magsuicide ka.. magstrap ka ng bomb tas yakapin mo kalaban mo, eh di patay kayong dalawa. Makukulong ka pa ba? Hindi na.. The trouble with this school is that it reopened, therefore its closure was in bad faith and was clearly to get rid of the union. Once the union was out, then it went back to open. So the thesis of the union is borne out as correct. Now, remember we are in economic provisions. You have to remember that if you do not comply with the economic provisions.. gross violations of the CBA, then that can be counted against you. Now, ARELLANO UNIVERSITY EE AND WORKERS UNION VS CA 502 SCRA 219 SEPT. 19, 2006 The union filed a case claiming that the univ violated the CBA by withholding union dues and death benefits. Are those economic provisions? Union dues are not economic provisions because it is in favor of the union. That is a personal clause for the union. BUt death benefits are economic benefits --even if the ee is no longer there to enjoy it. It is his beneficiaries, but that is an ecnomic benefit. The univ reasons out that on the request of the union members in the part of their rights against the union and its officers did withhold death benefits which they deposited with DOLE where the parties could settle the issues among themselves. Does it make the act of withholding the benefits and depositing it with the hold because there was an internal conflict within the union still a violation of the CBA? To constitute ULP, violations of the CBA must be gross. Gross violation of the CBA under Art. 261 means flagrant and/or malicious refusal to comply with the economic provisions thereof. Evidently, the University can not be faulted for ULP as it in good faith merely heeded the above-said request of Union members. It is in good faith. It still has the benefits, it is with the DOLE. It is upto DOLE to decide who has the right to claim the benefits. Here the union also claims that the univ is guilty of substantial diminution of benefits by using a divisor of its annual pay in order to obtain the bigger daily rate.. It was using 314 days instead of 365 days. The SC here said that there is nothing wrong here with using 314 days instead of 365. The Sundays being un-worked and considered unpaid rest days, while regular holidays as well as special holidays considered as paid days the factor used by the University merely complies with the basic rule in this jurisdiction of no work, no pay. The right to be paid for un-worked days is generally limited to the ten legal holidays in a year.
52
Alright, now, another mandatory or essential provision in the CBA which may not be an economic provision is the GRIEVANCE PROCEDURE. What is the grievance procedure? What is a grievance? The definition of a grievance in the IRR: "Grievance" refers to any question by either the employer or the union regarding the interpretation or implementation of any provision of the collective bargaining agreement or interpretation or enforcement of company personnel policies. The definition of the IRR is much wider than the accepted definition of a grievance. Why? Because here it includes questions of interpretation or enforcement of company personnel policies. Now, why is that? Why does the IRR include that? Because Art. 260 says that any question of the interpretation or enforcement of company personnel policies lies within the exclusive jurisdiction of the grievance machinery and voluntary arbitration. So questions of discipline now.. questions of company policies fall within the jurisdiction of the grievance machinery. Is management obliged to bring a grievance? Sige ka-late is A. So mag-unsa ang management, magpasaka sya ug sumbong nga late ning tawhana. Ngano man ni sya sigeng late? Is that the obligation of management? No.. PHIL. GRAPHIC ARTS. VS NLRC 166 SCRA 118 The SC says that mgt. has no obligation to bring a grievance. Why does mgt have no obligation to bring a grievance? Because it has managerial prerogatives. Managerial prerogatives are the prerogatives of mgt. which do not flow from the Labor Code. I bet you none of your commentaries answers the question what is the source of managerial prerogatives. Who grants managerial prerogatives? MP flows from ownership. Remember ownerships is a bundle of rights: jus posedendi, jus dispodendi etc. That is the idea of managerial prerogative. Ako'y tag-iya sa negosyo, kamo, makatabang mo kay mga workers man mo. Dili ko kagusto ninyo, I act because I own this place. Nganong late man ka? Kapila man na mamatay imong ugangan. You are suspended! The moment I (management) act, then that becomes a grievance. Never let it be said that there is a breach of CBA.. If you ever use that: That there is a breach of the CBA, that displays your ignorance. (Hala!) Never! There is no such phrase: Breach of CBA.. there is only a grievance because management has prerogatives and he can act. He first acts, and the results of his acts, if they are beyond what the law allows him to act, is a grievance. That is why it has been described that the CBA as a contract is not the same as other contracts in the Civil Code. It is sui generic; a unique contract. Management is considered a pro-active party. The Union is considered a reactive party. There is nothing-- there is no situation wherein management cannot act first. Management must always act first. So he goes about disciplining a worker.. and since managerial prerogatives are limited by the labor code (by the rights of the workers) then, depending on how he exercises his prerogatives, it becomes a valid grievance. This is important to understand so that you will know what are the relative precedent there should be between Art. 277 B and the grievance machinery. Art. 277(b) Subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal except for a just and authorized cause and without prejudice to the requirement of notice under Article 283 of this Code, the employer shall furnish the worker whose employment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires in accordance with company rules and regulations promulgated pursuant to guidelines set by the Department of Labor and Employment. Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the National Labor Relations Commission. The burden of proving that the termination was for a valid or authorized cause shall rest on the employer. The Secretary of the Department of Labor and Employment may suspend the effects of the termination pending resolution of the dispute in the event of a prima facie finding by the appropriate official of the Department of Labor and Employment before whom such dispute is pending that the termination may cause a serious labor dispute or is in implementation of a mass lay-off. -- that is the due process before you can dismiss or suspend an ee. Which is to be observed? 277(b) or the grievance machinery (GM)? Is the GM, does it supplant 277(b) or does 277(b) still remain in effect? Do you follow the GM and then 277(B) or is it the other way around?
53
In an obiter dictum, the SC said in PILI VS. NLRC 217 SCRA 388 (1993) - the GM has to be observed as well as 277(b) because it is mandated by law. 277(b) covers the obligation of mgt. to inform itself with respect to any wrong doing. After there has been observance, and after mgt. has meted out its punishment, then there is a grievance. Before that there is no grievance yet, unless mgt. acts without going through investigation. If management does not go through investigation and he just acts, then there is a grievance. Because the right of the worker before he is removed is the right to be given an opportunity to be heard under 277(b). So 277(b) has to be observed before you go through the GM. Imbestigahun ka sa companya unya mupasaka ka na sa grievance.. muingon ka na gipakaulawan ka. Nagbutang ug note ang personnel manager: All those who were around between the hours of 7pm-12 midnight around the premises of the company's warehouse where some 20 crates disappeared last night. Please supply information and report to investigating committee who is now investigating Mr. X. And then Mr. X files a grievance because he is being maligned.. he is being defamed. Is that a grievance? There is no grievance yet becuase what management is doing is demanded by 277(b). How can it be maligning? You are not maligning anybody any more than the fiscal is maligning the accused when he is saying that right there and there he willfully, maliciously, unlawfully and contrary to law x x x. So there is no grievance. The grievance occurs once management acts on you without following the law. The moment it does that, then that is a grievance. So you first comply with 277(b).. after you comply with 277(b) and there is a judgment from management, then there COULD be a grievance. CASES OF DISMISSALS BY MGT AFTER CONDUCTING 277(B) AND THEN GOING TO THE GRIEVANCE MACHINERY AND THEN THE EE DOES NOT GO THROUGH VOLUNTARY ARBITRATION 1. SANYO PHIL WORKERS. VS TANESARES 221 SCRA 361 (1992) 2. SILVA VS NLRC 274 SCRA 159 (1997) 3. POLICY INSTRUCTION NO. 56 APRIL 06, 1993 4. MANEJA VS. NLRC 290 S 623 (1998) 5. MALAYANG SAMAHAN VS RAMOS 326 SCRA 428 (2000) Labrel 08.09.07 One of the clauses of the clauses in the CBA and is said to be one of the prized possession of the union is the so-called Union Security Clause (USC) Kinds of USC: 1. OPEN-SHOP CLAUSE -- This is equivalent to having no USC because in open shop the workplace or the shop is open to all commerce whether you be a union member or not and there is no requirement to be a union member for continued employment. 2. MAINTENANCE OF MEMBERSHIP CLAUSE- The clause provides that anyone can be hired by the ER, whether he is a union member or not, and there is no obligation to become a union member once you are already a regular ee. However, if at the start of the CBA you are already a member of the union that is the EBA, you cannot get out of your membership of that union because if you are dismissed from the union or if you resign from the union, the union can demand from mgt. that you be terminated. So no requirement for union membership as to entrance. No req't for union membership when you become regulars. But if you are a union member, you must continue to be so otherwise if you cease to become a union member, the union can ask management to terminate you. 3. UNION SHOP CLAUSE --There is no req't of membership of a union to be hired by the er. But once you become regular, then you are given a certain period of time within which you must become a member of the union and continued membership in the union is a condition for continued employment. So that if you cease to become a member, the union can demand that you be terminated on the strength of the USC.
54
4. CLOSED-SHOP PROVISION -- The ER cannot hire anyone except union members. So before you enter and you are hired, you must become a member of the union. Or if you are already hired and you don't belong to any union, then you must become a member of the union as a basis for continued employment. So this is the highest pride possession of a union.. closed shop provision accdg. to Chief Justice Enrique Fernando. The shop - the workplace-- is closed to non union members -- only union members can be hired. And you must continue to be a member as a condition for continued employment. And once you cease to become a member, then the ER may be compelled by the union to terminate you. Now those are the various kinds of USC. What is peculiar about them is that these are for the benefit of the union. Now, for that reason, the SC has said: That because a USC is for the benefit of the union and not for the benefit of the individual er, it is ,therefore, in derogation to the right of self organization-- it detracts from the right to self organization. So, all USC are interpreted strictly against the union in cases of doubt. They are interpreted STRICTLY AGAINST THE UNION. The oft-repeated case that is cited is: ANAKAN-TIMBER CASE The case provided that there is no applicant that is not a union member that could be admitted by the ER, and that the worker must continue to be a member of the union as a condition for cont'd employment. But then it just stopped there. It so happened that one of the ee resigned from the union and the union demanded that the er terminate this particular ee. And since the ee was valuable to the er, the er did not terminate the ee. So it went all the way to the SC. The SC says that this is NOT A USC. Why? Because it does not contain a specific,unambiguous provision that once a union member, who is also an ee, ceases to be a union member, then the union can compel the er to terminate him. Since there was an absence of that specific provision, it was merely interpreted as a contract between mgt. and the union, for the latter to supply labor. It is NOT A USC. So please keep in mind that precisely what is favored by the law is the individual ee-- the lowly wage earner. The union is favored in so far as a union -- a haven of refuge of the lowly worker. If it is no longer a haven of refuge then the labor union itself cannot be benefited by the USC. The SC has said that there are three exceptions to the enforceability or application of a USC. 1. It cannot be applied to an EE who by religious conviction or faith is prohibited from joining unions . (VICTORIANO VS. ELIZALDE CASE, BASA VS. FOITAF) This was not only decided once by the SC, but many times. What is the reason here? The SC says that the freedom of religion is a more ancient right than the right to self-organization. Therefore, it is superior to the right to s.o. You cannot force the Iglesia ni Cristo to go against their faith by forcing them to join a union by virtue of the USC. What happened in this particular case where in one cert. elec, the members of Iglesia ni Cristo pleaded they cannot join the CE because they are prohibited. But later on in a subsequent CE, they put up their own union as a candidate of the CE. So the other unions filed a discriminatory case against them and that they exercised their religion only as a form of convenience. Why is it that they are now running and sure enough they won the CE? Is that allowed? YES! If you invoke your religion, you have that right. If you choose to go against the tenets of your religion, you still have that right. So that is the first exception.. know that the reason is that freedom of religion is a more ancient right than the right to s.o. 2. IF you have already exercised your right to self-organization . For example, you are already a member of a union (union B). But your union lost in the CE. So union A won and enters into a CBA with management with a USC which requires that all the members of the BU must become members of Union A.
55
Can you be forced by Union A to become a member? No, you cannot because the SC says you have already exercised your right to s.o. You have a union. The USC only has prospective effect, it does not have retrospective effect. It does not apply to EEs who have already exercised their right to s.o. 3. 60 day freedom period -- In the last 60 days of the CBA, it is a freedom period. Everybody embraced in the BU now has freedom to form his own union. To withdraw allegiance and to campaign for his own union and possibly get enough members to support his petition for CE. So during the 60 day freedom period, the USC is no longer operative. The only part that is operative is the union dues. You can still be deducted your union dues, but you are no longer forced to continue your membership even if there is a USC. So that is the 3rd and last exception. Now, I asked you to read those cases (last meeting). Why is it important to read those cases? Because that is the only time where there are three procedures -- grievance machinery, there is 277(b) and the third is the due process in the constitution and by laws of a labor organization. Now, to sum up all these rulings: To take it into the context of grievance, we said that when it comes to disciplinary measures what is to be followed is 277(b). We learned that in labor standards that 277(b) is required before an er can discipline his ee, either by means of suspension or dismissal. If you are only fined or remanded or given a penalty less than suspension, you cannot invoke 277(b) because it is only for suspension and/or dismissal. Vicente Mendoza has said that when an ee is dismissed without due process, that is not a violation of the due process clause in the Constitution. Although the SC keeps on repeating that -- constitutional right of due process -- that does not apply. Why? Because the due process clause in the Constitution -- that is the right of the Citizen vis-a-vis the State or the government. Now, who is your adversary in illegal dismissal? It is the ER -- a 3rd person. In fact you should go to the Civil Code not to the Bill of Rights. And that is brought up by Vicente Mendoza.. dugay na na gibalikbalik: There can be no violation of due process because there is no government involved. It is a statutory violation, not a violation of due process. Keep that in mind because the SC still uses that. It is wrong to illegally dismiss an employee because there is a law-- book 6 of the Labor Code that provides for due process. Because it is so provided in 277(b), then you do that, you follow that. If you don't then there are consequences if you dismiss somebody without going through due process (in 277(b)) even if there is substantial cause. Even if there is substantial cause but no procedural cause, then there is a flaw. Now, here is an ee. (Drawing) Remember there are two: ER and the Union -- the Union says the EE has done wrong and the wrong that he has done is of such gravity that he merits dismissal from our union. Now, Union goes to the ER and says to the ER: "On the strength of the USC, I am now demanding that you terminate him (EE). What is the obligation of the ER? Certainly, it is not enough for the ER to say "Where is the CBA? Does it say that the Union can demand? Is it really there? Ah its there, so I have no choice but to follow the union." No, that is not enough. What must the ER do? First of all he has to follow Art. 277(b). What does Art. 277(b) require? How many notices? Two notices. First, he has to send one written notice right away to the EE: "You are hereby informed that you are being charged under the USC that you be separated. Explain in writing why you should not be so separated." Now, he answers: The union dismissed me without investigating me. So what does management do? Mgt conducts an investigation between the ee and the union. What is the coverage of the investigation? Is the ER now interfering in the internal business of the union? Can the ER review the decision of the union? No, he cannot, otherwise the union is not autonomous. The union is supposed to be autonomous.. its affairs are supposed to be directed from within according to its by-laws, and accdg. to the Labor Code. So what is the coverage of the investigation?
56
It is just to find out whether or not the union has complied with what is stated in the by-laws and the constitution of the union as to the internal remedies of each members. Because that must be included in the constitution and by laws-- there must be a mode by which each member is disciplined. There must be a grievance committee, etc. because it is an organization. How do you discipline a member of the union? That must be provided. So you have to look at a second procedure.. what is that? That is the internal procedure of the union to discipline members. If the by-law says that the member who is being complained of must be given a written notice to explain; second, an investigating committee must be created, then that is what the employer will check. Was there a letter? Was a committee created? In other words, purely procedural. It does not go into the merits of the case because that is the province of the union. Now, after it does that, then it has its findings in accordance with 277(b) as to whether or not, procedurally, the ee concerned was granted his procedural due process under the by-laws and the constitution. After that, there must be a grievance. Now, I would just like to bring to your attention the ruling that has been repeated in these 5 cases beginning from Sanyo to Samahan where the SC says: After it has made this investigation, there can be no grievance 1) because there can only be grievance if the Union is opposed to the action of management. But if both mgt. and union agree to dismiss the ee, then there is no grievance. That is repeated in all those cases. And it is very suprising to me (Fr. Gus) why they keep on saying that. When it is so clear in the red letter of the law that that cannot be true. Why? Because an individual or a group of ee may bring a grievance. It is not necessary that the union be the one to bring the grievance. Take a look at Art. 255 -- In the negotiation phase, the union is the sole and exclusive bargainin agent.. Nobody can bargain but the union. The principal cannot bargain.. only the union can bargain. The labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining. But then it says in the second sentence: However, an individual employee or group of employees shall have the rights to their employer. This is what was forgotten in all these decisions. That is what is forgotten. Why? Because if there is a fight between the EE that is discipline and the ER, they go through the GRIEVANCE MACHINERY. And after the GRIEVANCE MACHINERY, the ER finally dismisses him (ee), the EE cannot submit to voluntary arbitration because that is expensive! Somebody has to pay the voluntary arbitrator. Normally, the scheme adopted is to split the arbitration fee: 50-50 between the ER and the Union. So the aggrieved ee goes to the arbiter on an illegal dismissal case. That is what happened in all these four cases. And one of the reasons why SC says that the Labor Arbiter has jurisdiction over these cases is because there is NO grievance because the union is in agreement with the management that this ee should be dismissed. There can only be grievance if the union is opposed, and therefore if there is a grievance that should go and end with voluntary arbitration. That, I think, is faulty because of Art. 255. The main reason why they can go to the Labor Arbiter instead of invoking voluntary arbitration is Art. 217. This says that termination is the original and exclusive province of the labor arbiter. The moment dismissal has occurred because mgt has made it to take effect, that is a cause of action. You have a cause of action to go to the LA. Nobody can have jurisdiction over illegal termination cases. So this brings us to this so called JURISDICTION OF THE VOLUNATRY ARBITRATOR. (VAR) Voluntary arbitration (VAN) is supposed to be the final step in unresolved grievances. Grievances go through the GRIEVANCE MACHINERY and if it is not resolved, then the final step is VOLUNTARY ARBITRATION. Now, the next question is what goes into GM?
57
Let us take a look at the law: Art. 260 ART. 260. Grievance machinery and voluntary arbitration. - The parties to a Collective Bargaining Agreement shall include therein provisions that will ensure the mutual observance of its terms and conditions. They shall establish a machinery for the adjustment and resolution of grievances arising from the interpretation or implementation of their Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies. From this paragraph, there are two basic principles there: 1. The GRIEVANCE MACHINERY is mandatory to all CBA. 2. There are two classes of cases that belong to the GRIEVANCE MACHINERY -- must exclusively be. What are they? a. the interpretation or implementation of their Collective Bargaining Agreement and b. those arising from the interpretation or enforcement of company personnel policies. That is therefore the mandatory jurisdiction of the VOLUNTARY ARBITRATOR. Because the next paragraph says: All grievances submitted to the grievance machinery which are not settled within seven (7) calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the Collective Bargaining Agreement. Now, there are several ways you can designate a VOLUNTARY ARBITRATOR in a GRIEVANCE MACHINERY. First, you can name the VOLUNTARY ARBITRATOR that mgt and the union already agree upon in the CBA. So there is no problem. Once you go through the GRIEVANCE MACHINERY and you cannot decide it, you just give it to this person. The only problem is, if during the effectivity of the CBA, this fellow that you named there dies. So wala ka nang VOLUNTARY ARBITRATOR. So many people say they will name several in the CBA. First choice, second choice, etc. Now, the only problem with that is that even if they are alive and they refuse to accept the case, then patay ka gihapon. So another way to determine the VOLUNTARY ARBITRATOR is to determine how to choose the VOLUNTARY ARBITRATOR. So you will put there how a VOLUNTARY ARBITRATOR is chosen: In the ff. manner: First mgt. shall submit 5 names. Then the union shall submit 5 names. And then the Regional Conciliator shall, by means of tossing a coin, do alternate scratching until after only one VOLUNTARY ARBITRATOR candidate will be left. So that is another way of designating of VOLUNTARY ARBITRATOR. Another way of designating not just by designating a VOLUNTARY ARBITRATOR but a panel of VOLUNTARY ARBITRATOR. So, the provision might read something like this: The VOLUNTARY ARBITRATOR shall be designate and constituted in the ff. manner: Mgt. and union shall appoint its member in a VOLUNTARY ARBITRATION panel, and the two VOLUNTARY ARBITRATOR shall appoint a third person who shall be the chairman of the panel. Pero ang nakapait ana, multiply by 3 ang bayad! :D And actually, that case will be decided only by one person -- the chairman, because the representative of the union will side in favor of the union and the rep. of the mgt. will side with the mgt. So those are examples of designation of a VOLUNTARY ARBITRATOR in the CBA which is considered to be essential --- a mandatory provision. For this purpose, parties to a Collective Bargaining Agreement shall name and designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators, or include in the agreement a procedure for the selection of such Voluntary Arbitrator or panel of Voluntary Arbitrators, preferably from the listing of qualified Voluntary Arbitrators duly accredited by the Board. In case the parties fail to select a Voluntary Arbitrator or panel of Voluntary Arbitrators, the Board shall designate the Voluntary Arbitrator or panel of Voluntary Arbitrators, as may be necessary, pursuant to the selection procedure agreed upon in the Collective Bargaining Agreement, which shall act with the same force and effect as if the Arbitrator or panel of Arbitrators has been selected by the parties as described above. Q: Is there a permissive jurisdiction of the VOLUNTARY ARBITRATOR? A: YES. What are these? ALL OTHER ISSUES MAY BE SUBMITTED TO THE VOLUNTARY ARBITRATOR BY AGREEMENT OF THE PARTIES, including those which are already in the exclusive and original jurisdiction of the Labor Arbiter.
58
Take a look at Art. 261 ART. 261. Jurisdiction of Voluntary Arbitrators or panel of Voluntary Arbitrators. - The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have original and exclusive jurisdiction to hear and decide all unresolved grievances arising from the interpretation or implementation of the Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies referred to in the immediately preceding article. Accordingly, violations of a Collective Bargaining Agreement, except those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as grievances under the Collective Bargaining Agreement . For purposes of this article, gross violations of Collective Bargaining Agreement shall mean flagrant and/or malicious refusal to comply with the economic provisions of such agreement. THOSE ARE THE PHRASES THAT YOU MUST MEMORIZE! "FLAGRANT AND/OR MALICIOUS REFUSAL TO COMPLY WITH ECONOMIC PROVISIONS -- those are the only transgressions that are considered as gross violations of the CBA. And gross violations of the CBA --those are the only ones that are considered as ULP by way of violating a CBA. All other violations are considered as grievances and fall within the jurisdicition of the GRIEVANCE MACHINERY and the VOLUNTARY ARBITRATOR. Then it says: The Commission, its Regional Offices and the Regional Directors of the Department of Labor and Employment shall not entertain disputes, grievances or matters under the exclusive and original jurisdiction of the Voluntary Arbitrator or panel of Voluntary Arbitrators and shall immediately dispose and refer the same to the Grievance Machinery or Voluntary Arbitration provided in the Collective Bargaining Agreement. So this is a command to the Labor Arbiters or the NLRC to dismiss complaints that are either arising from implementation or interpretation of the CBA or enforcement or interpretation of company personnel policies. Pagkana gani, dismiss na na, and then they will refer you to the GRIEVANCE MACHINERY. Now, Art. 262 ART. 262. Jurisdiction over other labor disputes. - The Voluntary Arbitrator or panel of Voluntary Arbitrators, upon agreement of the parties, shall also hear and decide all other labor disputes including unfair labor practices and bargaining deadlocks. So, any other dispute which by agreement by the parties is submitted by VOLUNTARY ARBITRATOR, then it can be removed from the LA or from any other forum if the parties wish. Why can the Labor Code so provide this? Because in the constitution, there is a preferential option for voluntary modes of settling labor disputes. In our Constitution, between compulsory arbitration and voluntary arbitration, there is a bias in favor of voluntary modes of resolving disputes. So that is why if you opt for VOLUNTARY ARBITRATION, then you are favored. This is true, even if the case is before the SC. Let's say that the SC is already about to read the decision, it has already issued orders that the case is now considered submitted for decision, then all of a sudden the parties file a joint urgent motion to the SC, asking the SC for leave to submit the issues to VOLUNTARY ARBITRATION, the SC has no choice, obey the constitution and dismiss/endorse the case to VOLUNTARY ARBITRATION, because that is a constitutional mandate. Let us say that it is an illegal dismissal case, and there is termination. Technically, it should be under the jurisdiction of the LA under 217. The parties agree that they will give it to the VOLUNTARY ARBITRATOR -- when you agree, not even the LA can complain because that is provided by the Labor Code. Remember in Samahan case: the union asked mgt. to terminate on the basis of the USC. Mgt. terminated the ee. The ee filed a case against mgt and the union. And the SC says that the first duty of mgt is 277(b). It must conduct its own investigation --w/n the ee was given his day in court in accordance with the internal remedies of the union's by laws and constitution. And because mgt. failed to do that, therefore it is now guilty--together with the union-- of illegal dismissal. And the ruling is that mgt and the union are jointly and solidarily liable for backwages. Salunga vs. CIR was modified-- before, it is the union who is guilty because the union induced adam (mgt.) to eat the apple, therefore it must be the union who will pay the backwages. Karon, kamo nang duha kay kamo mang duha ang nipaak sa apple. So we will continue tomorrow. :p -hps-
59
LABREL 08.10.07 Alright, we are still in voluntary arbitration. This is the only jurisdiction I know where voluntary arbitration is actually mandatory. Because there are mandatory subjects of voluntary arbitration under the law. SC Rulings 1. MANILA CENTRAL LINE CORP VS. MCL-NFL (1998) Issue: May a labor arbiter be chosen and designated as a voluntary arbitrator? Note that a LA is already a compulsory arbitrator and he belongs to the NLRC. Suppose the parties designate the LA as the voluntary arbitrator, is that all right? A: Yes, the essence of voluntary arbitration is the agreement of parties, rather than compulsion of law that it is submitted to arbitration. It does not matter that the person chosen as an arbitrator is a LA who is charged with certain compulsory arbitration under the law. There is nothing in the law prevents labor arbiter from acting as voluntary arbitrators upon the agreement of the parties. So if the parties choose the Pres. of the Phil as a voluntary arbitrator, is that okay? Yes, certainly there is nothing in the law that prevents them from doing so. In fact, one president came close to that, he was just a mediator and conciliator--- ERAP in the PAL case. He brought PAL and PALEA together and made them agree that for 10 years, due to the financial problems of PAL, that there will be no CBA. That certainly is not allowed. Because when you say that there will be no collective bargaining for 10 years, that is effectively waiving the right of union members, and only they can waive that. And yet, it has not been successfully questioned. That should be direction of voluntary arbitration. Even if it is contrary to law, if the parties agree, that should as long as the problem is solved just like in US. But Estrada just hit it out of luck! hehe Now note that this year is the 10th year of that agreement. Lucio Tan is now saying that PAL is moving out of receivership and he will say that that is because of that agreement. So, ANYBODY CAN BE A VOLUNTARY ARBITRATOR. The only requisite is that the parties agree. How do parties agree? They fill out a document called "joint submission to arbitrate". This document accomplishes many things: You accomplish jurisdiction over cause of action, over the persons, over issues because it is a joint submission. Now, if one party does not submit to voluntary arbitration, and it is a mandatory subject, how do you initiate arbitration? Let us say mgt. does not submit, and the union believes that it is a mandatory subject of voluntary arbitration. That is when you issue what is called a demand to arbitrate. You give a copy to the other party, lets say the mgt., and demand that you will arbitrate with us the following issues. Then you serve a copy with the NCMB, then the NCMB will conciliate and mediate. After the conciliation and mediation, if it does not [solve the problem], then the NCMB will choose the voluntary arbitrator. That is still submitted to arbitration. Now, if the party still persists in not participating in the arbitration, then the arbitration will go ex parte -- without the cooperation of the party that desisted. And you will receive a judgment against you and then you appeal to the Court of Appeals, can you still offer evidence? If the CA finds that you are supposed to be rightfully compelled to arbitrate, then you lose your chance of offering evidence. Remember, who has the best opportunity to determine whether a dispute is arbitrable? It is the voluntary arbitrator. Just like a judge, diba? File ka ng rape na case with the MTC, but that is supposed to be with the RTC, right? Now, it is the judge who will determine if he has jurisdiction over the case.. and if he does say so, then he does at his own risk of being reprimanded by the SC. But he has the first opportunity to decide whether or not the case is arbitrable.. so it is the voluntary arbitrator. You file a motion and the voluntary arbitrator will decide on whether or not he will dismiss the case because he has no jurisdiction. Now, some voluntary arbitrator however will want to play it safe. After a motion is filed to dismiss the case for lack of jurisdiction, the voluntary arbitrator will issue an order --- to defer the resolution as to whether or not voluntary arbitrator has jurisdiction over the issue. So submit your position papers so that I will know whether this is an interpretation or implementation of the CBA or interpretation of company personnel policies. That is allowed and this is not unusual.
60
2. NAVARRO VS. DAMASCO 246 S 260 (1995) Issue: Does voluntary arbitrator have jurisdiction over alleged sexual harassment committed by an ee against another ee within the company premises but not during office hours? In the company premises because it was said to have occurred in the dormitory. A: The SC said YES, the harassment of an ee by a co-ee within the company premises even after office hours is a work-related matter considering that the peace of the company is hereby affected; the code of ee discipline being very clear that immoral conduct within the company premises -- regardless of whether it is committed during office hours or not-- is punishable. Considering that the subject incident involving the moral conduct not only happened within company premises-- the ladies dormitory located inside the plant site-- but both of them are of the company, the allegation that the quarrel between them was a purely private affair cannot be accepted. Otherwise, mgt. will be at the mercy of the ee if it cannot impose discipline within the company premises solely because the quarrel was purely personal. Q: May a voluntary arbitrator entertain a motion for reconsideration (MR) and modify his final decision or award? A: I told you that in the US and Europe, no more. The moment that a decision is rendered, it is out of the hands of the voluntary arbitrator. It belongs to the parties to be executed. Why? Because the parties agree to appoint the voluntary arbitrator. HE is the one sought after by the parties to arbitrate. If he makes a decision, he should not be contradicted by the parties. It is not therefore an ordinary adversarial case. Now, that is why the Phil before the amendment of the LC, the decisions of the SC were to the effect that no, the voluntary arbitrator cannot amend or modify his award or decisions by MR or motu proprio. "The rationale behind this is that an award should be regarded as the judgment of a court of last resort so that all reasonable presumption should be ascertained in its favor and none to overthrow it. Otherwise, arbitration proceedings, instead of being a quick and easy mode of obtaining justice, would be merely an unnecessary step in the course of litigation, causing delay and expenses, but not finally settling anything. (CONSOLIDATED BANK AND TRUST CO VS. BLR L-64961 10/15/88) But the subsequent decisions of the SC now is to the effect that that is allowed. What decision is that? IMPERIAL TEXTILE MILLS VS. SAMPAN 219 SCRA 651 (1993) This is what the SC said: "Under the old law where the provision did not expressly fix the time when the Voluntary Arbitrator's decision or award would become final and executory, such decision would assume the attribute of finality upon its issuance, subject only to judicial review in appropriate cases. Thus the Voluntary Arbitrator lost jurisdiction over the case submitted to him the moment he rendered his decision. Therefore, he could no longer entertain a motion for reconsideration of the decision for its reversal or modification. Under the present rule makes the voluntary arbitration award final and executory after ten calendar days from receipt of the copy of the award or decision by the parties. Presumably, the decision may still be reconsidered by the Voluntary Arbitrator on the basis of a motion for reconsideration duly filed during that period ." Q: Is a voluntary arbitrator bound by another voluntary arbitrator's in the latter's ruling in a previous case? Is there such a thing as a precedent that voluntary arbitrators follow? A: The answer is not. The voluntary arbitrator is neither morally nor legally bound by what another arbitrator has rule in a previous case. There is nothing in the LC that says so, but where there is a similarity of the parties, the contract and the issues, the present arbitrator would be well advised to take a long and careful look at the primary decision. If the latter is sound, it would directly follow its precedent as otherwise chaos and confusion will result from conflicting rulings on the same issues between the same parties, and arising out of the same contract. Assuming of course that the contract is still the same. Because the other reasoning would be: if it is truly arising from the same contract, then it is res judicata. There should be no similar grievance; there should be a different grievance. Q: Are awards and final decisions of the voluntary arbitrator appealable and to whom? A: To the court of appeals (Sec. 1, Rule 43 of the 1997 Rules of Civ Pro) The basis of Sec. 1 Rule 43 of the 1997 Rules of Civ Pro are as follows: 1. SC Circular 1-95 05/06/97 revising SC Circular 1-91
61
2. Luzon Dev't Bank vs. Association of Luzon Dev't Bank EEs (1995 case) This was an en banc decision written by J. Romero and from then on, the decision of the voluntary arbitrator was not brought before the SC but before the CA. Before, the LC provides that the decision of the voluntary arbitrator is final and executory 10 days from receipt thereof. So technically, there is no appeal. That is found in Art. 262-A "The award or decision of the Voluntary Arbitrator or panel of Voluntary Arbitrators shall contain the facts and the law on which it is based. It shall be final and executory after ten (10) calendar days from receipt of the copy of the award or decision by the parties." There is no appeal. And if you were to question the decision, you file an original appeal of certiorari. So the SC was later swamped with so many of these cases. So the SC asked Romero to write the decision. Why Romero? Because she was the one who wrote the decision of the mantrade case where a voluntary arbitrator was subjected to a mandamus suit. The mantrade case (this involves the issue of payment of 13th month pay) was subjected to voluntary arbitration. Instead of submitting it with the LA, the union and mgt. agreed to submit it to voluntary arbitration. And the decision at that time was that mgt. was no longer obliged to give 13th month pay over and above the Christmas bonus. So mgt. filed a petition for mandamus asking the voluntary arbitrator to rule that they are no longer obliged to pay because they have given their Christmas bonus because decisions of the SC are sources of right. The union contested the petition. They argued that the voluntary arbitrator is a civilian. Mandamus is directed to a public officer. Civilian man na sya nganong masubject man sya sa mandamus case? SC said that a voluntary arbitrator is a quasi-public officer. Why public officer when voluntary arbitrator is not elected nor appointed, and yet why is he somewhat a public officer? Because he is named in the LC; there is a procedure by which he is chosen and he is mandated to perform some tasks therefore he is a quasi-public officer. So the decision now is that since the voluntary arbitrator is a quasi-public officer, in line with Rule 43, in the absence of any law directing the appeal of any office, then it falls with the Court of Appeals. Labrel 08.15.07 There are two kinds of disputes in the CBA: 1. There is a RIGHTS DISPUTE which is adversarial in nature. That is there is a provision involved in the CBA or a company rule or provision. Now, management has taken an action and then the ee or the union grieves because of the action. Management is either wrong, which means the ee is correct. Or the ee is wrong and the mgt is correct. Or mgt. is partly wrong and partly correct, and the ee is also partly wrong and partly correct. The trier of fact, which is the voluntary arbitrator, must decide who is correct on the basis of a particular provision of a CBA or on a company rule or policy. 2. The other kind of dispute is the so-called INTEREST DISPUTE. This is peculiar with respect to CB. And what is that? For instance there is a bargaining deadlock, and the cause of the bargaining deadlock (normally) is because of the economic demands of the union. Let us say the union demands a P100/day increase and mgt. is only willing to give P10/day increase. And there is a deadlock which they submit to voluntary arbitrator. The job of the voluntary arbitrator is not to find out who is correct or who is wrong --the union is correct for asking P100/day increase or mgt. is correct for wanting only P10/day increase. That is not the issue. The voluntary arbitrator must arrive at a solution that is an optimal level for all parties concerned -- a livable solution, and as you know in mathematics, between two points there is an infinite distance, that is why the correct decision between the P100-P10 dispute is infinite. What is correct? P10.20? P10.01? So the trier of facts must try to determine a livable solution. It is not for the trier of facts to determine right from wrong. But what is livable.
62
Now, you will know that it is an interest dispute because of the title of the case. The title of the case would normally be: In Re: Bargaining Deadlock at XYZ Corp. It cannot be XYZ local-PTGWO for and in behalf of Juan dela Cruz, complainant vs. XYZ Co. Mgt, respondent. That is a rights dispute. Now, in interest disputes, there is so much more input that is required by the voluntary arbitrator. especially when you are determining wage levels. Note: The min. wage for non-agricultural workers (commercial and/or industrial) in NCR is P360/day. The agricultural is P320/day. So I am going to ask you, you download from the DOLE website so you will see the categories of the workers there. So that is the matter of rights disputes from interest disputes. Q: May a voluntary arbitrator conduct an ocular inspection of the workplace and question the ee therein? Can a Labor Arbiter conduct an ocular inspection? Yes, no problem with the LA because his jurisdiction is conferred by law. And so he can conduct [an ocular inspection] and he can ask the workers, and he can compel them to answer under oath. Because they fall under the jurisdiction of the LA. But how about the voluntary arbitrator? A: YES, he can conduct ocular inspection, but the moment that he asks questions he cannot compel answers. Because basically jurisdiction by the voluntary arbitrator is voluntary. And if mgt. submits to the jurisdiction and the union submits to the jurisdiction, including the complainant-union members, it does not mean that the others will submit. So, unlike the LA who can compel testimony, the voluntary arbitrator cannot, unless those they ask will voluntarily submit to the jurisdiction of the voluntary arbitrator. He has no coercive powers in questioning ees in the workplace since his jurisdiction is based on agreement and/or submission of the parties. That is the big difference between the voluntary arbitrator and the LA, who is a compulsory arbitrator. Now, supposing the arbitrator has rendered a decision, how does he execute his decision? Can he issue writs of execution? Yes, he can issue writs of execution. Who will actually execute the writ of execution? Any authorized officer, for instance, the sheriff of the LA, and the sheriff will execute the decision; or if the sheriff of the LA is busy, the sheriff of the regular courts, if they are willing. Of course, the party for whose favor the writ is being executed must reimburse the sheriff for his expenses. So writ of execution and that writ is referred. Now, if it is the SC that makes the final decision from voluntary arbitrator, normally the SC remands it to the court a quo, normally to the NCMB where the voluntary arbitrator is. If the voluntary arbitrator is dead, it is up to the NCMB to appoint a voluntary arbitrator for the purpose of executing the decision. So that is the case of voluntary arbitration. So let us begin with Unfair Labor Practice (ULP) Art. 247 is the concept of ULP. ART. 247. Concept of unfair labor practice and procedure for prosecution thereof. - Unfair labor practices violate the constitutional right of workers and employees to self-organization, are inimical to the legitimate interests of both labor and management, including their right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect, disrupt industrial peace and hinder the promotion of healthy and stable labor-management relations. So look at that, violation of the constitutional right of workers and ees to self-organization. So it is not just a violation of a contractual right but it entails a disturbance of the public -- a disruption of industrial peace and the hindrance of the promotion of healthy and stable labormgt. relations. Consequently, unfair labor practices are not only violations of the civil rights of both labor and management but are also criminal offenses against the State which shall be subject to prosecution and punishment as herein provided.
63
Subject to the exercise by the President or by the Secretary of Labor and Employment of the powers vested in them by Articles 263 and 264 of this Code, the civil aspects of all cases involving unfair labor practices, which may include claims for actual, moral, exemplary and other forms of damages, attorneys fees and other affirmative relief, shall be under the jurisdiction of the Labor Arbiters. The Labor Arbiters shall give utmost priority to the hearing and resolution of all cases involving unfair labor practices. They shall resolve such cases within thirty (30) calendar days from the time they are submitted for decision. Recovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code. If there is a ULP, what is affected is not just the mgt. and/or the union and its members, but also the gen. public, that is why ULP may ripen into a criminal case. But before it does, it must comply with the last par. of 247. 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. So condition sine qua non before beginning any criminal prosecution for ULP is a final and executory judgment on the ULP that is not criminal -- the administrative part. Once you have that, then you can submit that to the prosecutor and you can begin the prosecution for ULP criminal in nature. 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. So if you file an ULP as a criminal case, you have to start ad novo.. all over. You cannot use any of the proceedings before the LA or before the NLRC, all you can use is the final decision that it is executory. That is what you can use for purposes of fulfilling Art. 247, last par. But then, you must really start from zero from the prosecutor's office, you file the complaint, your witnesses, then the prosecutor will ask respondent to submit his counter-affidavit and determine whether there is probable cause. But there will never be a probable cause unless you submit a final and executory decision on the administrative ULP. During that time that the admin. case is going on, the ULP as a criminal case, the prescriptive pd. is suspended, because we follow the prescriptive period of crimes of special laws. Now, ULP as an administrative offense has a very short prescriptive period. How long? IT has only 1 year prescriptive period. Art. 290, Second par. " All unfair labor practices arising from Book V shall be filed with the appropriate agency within one year from accrual of such ULP, otherwise it shall be forever barred." The first paragraph will teach you the prescriptive period for other: "Offenses penalized under this Code and the rules and regulations issued pursuant thereto shall prescribe in three (3) years." And Art. 291 says ART. 291. Money claims. - All money claims arising from employer-employee relations accruing during the effectivity of this Code shall be filed within three (3) years from the time the cause of action accrued; otherwise they shall be forever barred. Now, let me ask you, money claims in a CBA, when does it prescribe? If there is an increase there to be given to you, how long can you file the case? In your civil code, you remember the prescriptive period for causes of action arising from contract.. 10 years diba? Is it also 10 years? A: The SC has said it is 3 years. It is 291, it does not follow the civil code. It follows the labor code. So, that is why it says here in the 2nd par. of 247: Consequently, unfair labor practices are not only violations of the civil rights of both labor and management but are also criminal offenses against the State which shall be subject to prosecution and punishment as herein provided.
64
But take note in Art. 247 when it says the "constitutional right of ees x x x" that is less than accurate. Right to self-organization is not a constitutional right, if it were so, then all government ees should have a right to self-organization, collective bargaining, etc. But they only have the right that are explained in E.O. 180 -- a modified right to self-organization. And proof of that is PAMANTASAN NG LUNGSOD NG MAYNILA VS. CSC (1995) Pamantasan has a charter and by-laws that is a law-- it is an ordinance of Manila that created PLM. Here the president of the University did not like the ee's organization that is formed by the faculty. So what did he do? He just dismissed all the officers of the ee's organization. That is clearly ULP -- you are discriminated against for forming an organization of workers. Now, if it were ULP under 247, you could file it with the Labor Arbiter under Art. 217. The ruling in PLM is that the one who has jurisdiction over ULP among public ees is not the Labor Arbiter, but the Public Sector Labor Mgt. Counsel (PSLMC) -- that body created by E.O. 180. Are there penalties? There are none! They cannot be sued under the Labor Code. So you r right to self-organization is violated and you do not have any real recourse because you are a gov't ee, therefore, it is not a constitutional right. This law is trying to SC that it is a constitutional right by putting here that it is a constitutional right. And the SC mouths this in blissful ignorance. That is not correct. Who can commit ULP? Some people say there are only two: EEs or ER There is 248 -- ULP of ERs. Then there is 249 -- ULP of ees or the labor organizations And you know why there is only two? Because under Art. 212, the definition of an er embraces anyone who acts directly or indirectly in the interest of the er. So for example, policeman, but you act in the interest of the er, you are an er already.. that is what some people say. That's why there are only two-- the er and the ee. There cannot be a third. But the problem with that is that you have forgotten Art. 246 which says "It shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with employees and workers in their exercise of the right to self-organization. Such right shall include the right to form, join, or assist labor organizations for the purpose of collective bargaining through representatives of their own choosing and to engage in lawful concerted activities for the same purpose for their mutual aid and protection, subject to the provisions of Article 264 of this Code." Now,"any person" -- that is a third person. What is Art. 264? 264 contains the list of prohibited practices during concerted activities. So, the law itself recognizes 3rd persons other than ees, or unions or mgt or mgt. ees. The law recognizes 3rd persons. Example: The police.. naay strike diha, mga trabahante magpicket diha. Papahawaon nila. In so doing they are committing ULP by restraining, coercing or discriminating against, or unduly interfering in the exercise of right to s.o. So please memorize that, how do you as a 3rd person commit ULP? Restrain, coerce, discriminate and unduly interfere in the right to s.o. That is how a 3rd party commits ULP. Now, how does na ER commit ULP? 248 (a) ART. 248. Unfair labor practices of employers. - It shall be unlawful for an employer to commit any of the following unfair labor practice: (a) To interfere with, restrain or coerce employees in the exercise of their right to self-organization This is generic. So there is a common denominator between the ER and the 3rd party: restrain and coercion..but interfere with is much broader than unduly interefere. The 3rd party must UNDULY interfere.
65
What is the interpretation in our language of interefere? Nag-apil2x; naglabot2x -- maglabot2x gani ka, and you are an er, in the exercise of the right to s.o. -- in forming, joining or assisting a labor organization, then you are guilty of ULP. And you are a 3rd party, is mere interference enough? No, it says UNDULY INTERFERE. Sobra ba nga paglabot-labot ba! Why do I say that? Because there is a due interference, and that is not unlawful. Unduly is that one that is unlawful. Now, you go to the union Art. 249 ART. 249. Unfair labor practices of labor organizations. - It shall be unfair labor practice for a labor organization, its officers, agents or representatives: (a) To restrain or coerce employees in the exercise of their right to self-organization. However, a labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of membership; Wala nay' interfere. Can they interfere? Yes, they can interfere! But management cannot do that. The union can because there are only two ways that the union can commit ULP: restrain or coerce. Mgt: Interfere, coerce, restrain 3rd party: Restrain, coerce, discriminate and unduly interfere. If you know that and the meaning of those words, you have ULP. And we can all go home. Because the rest are just novena prayers simplifying the genus is all about. In the landmark case of INSULAR LIFE VS. INSULAR LIFE The SC answered the questions: 1. Is the list of ULP in the Labor Code exhaustive? --> No, it is not exhaustive. They are just listed down because they are the common occurences. The SC says that it is impossible to list down all the ways by which mgt. can restrain or coerce or interfere in the exercise to right of s.o. 2. Is it necessary to charge an ER for ULP? To exactly denominate what provision in the Labor Code has been violated? --> No, only an accurate recitation of acts or ommission alleged to constitute ULP. That is what is required. So there must be a recitation of what you did or did not do, and if those acts constitute interference, restraint or coercion, then ULP has been committed. So you might not say there ULP, but your recitation of the facts is correct. 3. Is it necessary that proof be presented that in fact the ee, or the union has been restrained or coerced or intimidated? Because you may talk about a supervisor who is only 4'11 and the person he is supervising is 6''. And he threatens them.. naa gani ko madunggan sa inyo nga mag-union2x diha, duklon tamo!" Di man gani sya kaabot.. and so the workers under him are just laughing. And now the ees charge him with ULP, and he presents counter-evidence that the ees were just laughing. Has ULP been committed? --> YES. The measurement to be used is the DANGEROUS TENDENCY RULE. Are the words standing by themself, do they have the tendency to restrain, coerce or interfere? No proof is required that they produced the effect intended. Why? Because if you require actual restraint or coercion to be proved, then you are actually requiring what the law seeks to avoid. The law is here to avoid or put to rest all manner of forcer or coercion to the ee, and now you ask for proof that they must have to be forced? So you are making the law unsuccessful. As long as the words in themselves are intended -- carry the intent to restrain or coerce -- then restraint and coercion have been committed. Now, with respect to acts it is very easy to determine whether there has been coercion or restraint. When we go to Art. 248-- Acts are very easy to determine.
66
What is difficult are words; speech. How do you commit ULP by speech? That is when it becomes problematic.. and that is where most controversies lie. Again the landmark case is INSULAR LIFE VS. INSULAR LIFE. You must read this case! The SC tackled so many issues in this case.. And accdg. to the SC, ULP may be committed through speech. Once the speech contains any promise of reward or reprisal, you have ULP. You are interfering into the rights of s.o. Promise of reward: Ayaw na lang mo pag-union, taga-an tamo ug raise. That is a promise of reward.. that is ULP. You're interfering.. you are influencing their decision. Or materminate mo tanan if you join a union! That is a threat.. and you cannot as an ER hide behind the freedom of speech because that kind of speech in ULP is uprotected speech. That is one of the unprotected speech.. what are the other two? Libel and pornography (the prurient portrayal of sex without any redeeming social value)
August 22, 2007 An er commits unfair labor practice if he interferes with the ees right to self-organization. When it is by way of actions, it is very easy to determine, when he restrains or coerces. But when it comes to words, how does the er interfere? One of the things that an employer can do is to establish rules in the company premises. You have seen some of those notices in some of the company's premises: " NO SOLICITATION". So, you are from charitable organization, you go to the company premises and the guards stop you because "No Solicitation" Then you have vendors come around try to sell everything over the company premises, the guard stops him, no solicitation. Suppose, it is labor union organizer who goes there, he want to organize a labor union. So, he has to solicit, mag-union ta. And he goes there, there is a sign no solicitation. The guard will stop him, the union organizer has no right to go in, why? Because he has no right to self-organization vis-a-vis the er. The union organizer is not an employee, so he has no right to self-organization. He can be stopped. Now, what happens, if it is an employee. Can an employee be stopped from soliciting? Mag-union ta bay. That is the essence of the right to self-organization, to solicit membership in a labor organization. What are the rules? These are the rules: (CF hand-out) 1. A no-solicitation rule of union membership or the prohibition against distribution of union literature during working hours or working time or within the company property is presumptively invalid. So if the employer says, you ees, you cannot solicit union membership, during working hours at the workplace, that rule is invalid presumptively. Why? Because the rule is considered overly broad. The rule is susceptible of an interpretation by employees that they were prohibited from engaging in protected activity during their free time, like break periods or meal times or at so called neutral places. In other words, the qualifiers WORKING HOURS is too broad because the employer does not have complete control of your working hours. There are certain time there are times there that the employee has control, that during break time, coffee breaks, the employer cannot put a rule that you can only talk about the work during break time. Can you do that? You cannot. You can talk anything under the sun because the employer cannot intervene in the guise of legitimate business ends. There is no business ends there. They are supposed to relax, to take a break, and therefore can talk on any subject according to their wishes. Therefore, when you say: NO SOLICTATION AT ALL DURING WORKING OURS, you are dictating the employee what their conversation is even during break time. So, what is the more proper rule? The PROPER RULE is: No solicitation at the WORK STATION, while you are working, if you are in the assembly line, AT THE WORK STATION DURING ACTUAL WORKING TIME. That is the more proper rule, to escape the taint of invalidity because it is overly broad. 2. Evidence may be presented to overcome the presumptive invalidity or validity of a no solicitation, no-distribution rule.
67
What is the no-distribution rule? The no-distribution rule is you cannot distribute union literature during working hours at the workplace. Again, that is presumptively invalid, that is overly broad because in the comfort room, you pass union literature, let us say there is a hand bill about the union to the employee and you are not endangering a legitimate business objective because you are not actually working. It say here, Evidence may be presented to overcome the presumptive invalidity or validity of a no solicitation, no-distribution rule. What is an example of evidence that that can overthrow the presumptive invalidity of a no-solicitation or no-distribution rule? For instance, at the entrance of the workplace, some of the employees in the end of the working hours, when they are about to go home, they punch out earlier and they stand there with union literature, and they give out the union literature and ask the employees who are exiting the workplace. The company technically speaking, no longer has any reason to oppose that because they are already going home, and they just giving literature. Now, a rule that prohibits the distribution of union literature at the entrance during the time of exit is presumptively invalid because this is overly broad. But then you can say that from experience, when you distribute literature like that, many workers will not read it. Unsa man ni? Dili man ta madatu ani. Ilabay nila. Nagkatag na dinha. Unya mabasa na gamay, di naa nay potential danger, naay kimpang dinha unya ma-slide, maliability pa hinuon sa employer, that is why the employer can protest that. That is the evidence that you can present to overturn, an otherwise presumptively invalid rule of solicitation. Now, for instance, during actual working hours, there no solicitation, and yet in the past, you allowed employees to actually looks solicitation, for example, there is somebody who is known by everybody, tpos na-stroke, naa na sa hospital krn, and then somebody pass a hat around, they ask for a little contribution, they ask permission from the management, it's okey, gitugutan while they are working, so, there is actually permission granted to solicit AT THE TIME OF ACTUAL WORK, once you do that and then if you oppose somebody for soliciting during the actual working hours union membership, then that is discriminatory. The only reason that you oppose that is because you do not want a union, that is the only reason. It is no longer a valid business ends, because it can be interfere with without damage to the employer, you can no longer prohibit. 3. In department stores, the general rule against applying no solicitation rules to employees non-working time does not apply. There are supposed to be neutral places in the workplace, where you cannot prevent solicitation, for instance canteen, naa mu sa canteen managaun mo, they employer cannot dictate what you are going to say there, you cannot stop people from talking about union also. But in a department store, where even in neutral areas, customers have access. In departments stores or supermarket, the toilets of employees are also open to customers. The canteen, the food courts are also open to customers. So, you CAN BE PREVENTED from doing solicitation in the neutral areas of the department stores. Why? because these may cause an alarm to the customers, they might think that there is an on-going labor trouble. So, you can be prevented from doing solicitation in the neutral places of the department store. Again, another instance, as an exception to the general rule are hospitals: 4. Hospitals are justified in limiting employee solicitation and distribution rights even during non-working time, but only in patient care areas. "Patient Care Areas". A hospital is like a department store. Patients and there visitors have access to neutral areas, the lobby, naa may patients diha usahay, kanang canteen sa hospital, if you are heard to be speaking about union organizing there, it might alarm the patients and the patients have the right of equanimity. So, you can be prevented from doing solicitation even in the so-called neutral areas, which would otherwise be a legitimate area to do solicitation if it where another workplace. Now, again, for example, the way unions are organized, the classify into three (3) periods, there is this subrosa [confidential, secret or private] period, then there is this open period, and finally, there is this campaign period. For some, the bigger the number of workers to be organized, the longer the period of subrosa, kay ang union organizer, mungadto na siya, pero dili man na siya kasulod because the security guards are there, and they will ask for an ID. What he does is he will get 3 or 4 or 5 people to organize the first cell. They should be people in the workplace that is in need of a union. kanang mubati ug union, mao na imong pangitaon, kanang gigukud na sa management. That is to get in. Kuha ka ug lima, imo na silang meeting-on, from there you get the issues, suhol ba, working time, mga buang2 na boss, walay kasing2. Now, then, mag-meeting sunod, matag-isa sa inyo magdala pud ug isa. But all of them have sworn to secrecy so that the management cannot do any counter measure that will stop the organizing of the union.
68
Eventually, after you have arrived at what we called a critical mass, kanang-igong gidaghanun, kanang makatuo na kanang dili miyembro sa union nga ubay na diay mo, and that the wings of victory are in your side, gawas nmu in the open. That is the OPEN PERIOD, mulabang mo from Subrosa Period to OPEN PERIOD. What is the characteristic of the open period? The Characteristic of the open period is that, all those who are already convinced by the union or members of the union come out in the open that they are union and invite other to join the union. They invite them openly. Unsa man naa? Magbutang na sila ug armband, "union ta", like "in union, there is strength". If you are the supervisor of the union, and you said: remove the armband. Are you not guilty Unfair labor practice? What are the rules of solicitation? What can you do? What can you prevent? Can you prevent the employee from putting up the armband/buttons? Because those are all those are expressions of the right to self-organization. Technically speaking, those are specific instances of the exercise of the right to self-organization and the only thing that can defeat that is a COMPELING REASON TO BUSINESS SIDE OF MANAGEMENT. If it t is connected to and essential to his business objective, then that cannot be stopped otherwise his business objectives are endangered. Suppose, all workers in that partular workplace have a uniform, so, in other words their dress code is determined by rule. Mao ni inyong uniform. For example in the past, you have uniforms, and the uniform is essential so that you can be identified by the customer that you are the employee. Now, can the employee be prevented from wearing a button or armband which says, in union there is strength. The rule is, if there is uniform required, then it is already accepted by the employee that, that is what is you wear and there is genuine business interest/legitimate business aim for the purpose for requiring that uniform. And anything alien to the uniform are supposed to be a transgression of the rule therefore, it can be stopped. That is the General rule. Since the employee have accepted it, to wear a uniform and then they have accepted also the contrary that nothing other than the uniform may be worn. But then, suppose the employer makes an exception, kana bitaw mga employees, they went on vacation to Baguio, unya mamalit na ug ilang mga kwentas2. Pagbalik nila, gisuot2 nila, unya gipasagdan man sila sa employer. They are not told to remove those extra accessories which are not part and parcel to the uniform. So, therefore, the uniform can be augmented, or can stand a little modification. So that the wearing of buttons or armbands can no longer be stopped by the employer. The employer does not stop any alteration in the uniform and then all of a sudden he stops an employee from wearing a button which says "in union there is strength". The employer commits unfair labor practice because it is discriminatory. You are preventing the employee making solicitation because you are against the union, not for a legitimate business interest. That is the exception to the rule. An the exception to the exception is hospitals again . Nurses. For instance, nurses can be stopped and told to remove buttons or armbands that they add to the uniform when they are in the operating room because the protocol in the operating room or official guard is very minute. It is very2 minute. You can only wear sterilized clothes in the operating room. In fact, you cannot put it on yourself, somebody else puts it on you. The purpose their is for the legitimate business purpose, namely the good of the patient. Therefore, you can be told to remove the buttons/armbands. It can be that strict in hospitals. Now, with respect to third parties, who come in the workplace. I told you in an ordinary workplace, the union organizer can be kept out. He has no right to self-organization vis-a-vis the employer because there is no employer-employee relationship with the employer. But, number 7; 7. In situations where the company property is isolated from a larger community, as in the case of companyowned towns, ships, lumber camps, and the like, ( kanang mga agri-business, lagyo kaayo, mga mining companies) and employees cannot be reached outside the premises ( because that is where they work and where they leave), union organizers must be allowed reasonable access to company property. What is the justification? If they are kept out then the right to self-organization of the employees in those isolated workplace IS VIRTUALLY IMPOSSIBLE TO EXERCISE. There is no practical possibility of the exercise because they are just there among themselves. They do not know the mechanics, they do not know the law, they do not know their rights, they do not know actual organizing. That is why, it is as if they have no right to self organization. They need an outside help. Because it where they live , and it is where they work. That is why the rule is labor organizers must be allowed reasonable access to company property in isolated workplaces.
69
These are all rules of solicitation. This is not discussed in other authors because in the Philippines, there are very rare cases like this. Because they are not enough to constitute a cause of action for practical purposes. You will find out later on, when you become lawyers, most of the time the employee just bear and grin, it is when they are separated from service that is when they want to file a case. Mo-hulat lang ba muotong. But in the US so many case like this. What rules are allowed? They make use of the law, that the employer has no right to interfere with the right to self-organization. That is supposed to be the sole interest of the employees. Now, the proper and the ideal stance of the employer is to leave them alone. That is not observe here in the Philippines. The employer has find many ways to influence the employees. So, these are the rules on solicitation. Alright, I told you that in Insular vs. Insular Life, the Supreme Court came out with a measure by which speech is rendered unfair labor practice, speech on the part of the employer. What is the measurement? The speech must not contain any PROMISE OF REWARD, or THREAT OF REPRISAL. Please memorize these terms. The employer's speech in order to be free of unfair labor practice must not contain any promise of reward, or threat of reprisal. Suppose the employer calls his employees. Stop working! we will have a meeting. I have heard that there is a move to form a union, I do not like union. What ever it is that you are claiming, tell me. Now, you want a raise, dili nko mahatag inyong gipangayo pero taga-an tamo og raise ron, aron wala natay union. What is that? That is unfair labor practice because there is promise of reward. Suppose the employer calls them to a meeting and the employer says word have reached me that there is a movement to form a union. You think that I do not know, I know, watch out all of you leaders and organizers. Your days are numbered. Inihap na ang mga adlaw ninyu. Unsa man na? Threat of reprisal. That is unfair labor practice. Is it essential that what he is saying is true? Nakakita ko unsay nahitabo, bisan wla gud siya nakita kung unsay nahitabo. Is it essential? It is not. even if he actually does not know because his saying so, contains a threat of reprisal, that is unfair labor practice. Now, if you do something, that is a threat. You kicked out one of the leaders organizing the union. You dismissed them, that is unfair labor practice. If a threat is unfair labor practice, with all the more reason carrying it out a threat. So that is unfair labor practice. Now, when can you threaten and when can you promise with impunity? When can you threaten and when can you promise and the employer cannot be prosecuted for unfair labor practice? When is that? Please pay attention to this, because your commentator never tell you this. You can do it in case of Art. 233. ART. 233. Privileged communication. - Information and statements made at conciliation proceedings shall be treated as privileged communication and shall not be used as evidence in the Commission. Conciliators and similar officials shall not testify in any court or body regarding any matters taken up at conciliation proceedings conducted by them. So, it is during conciliation and mediation. Naa na, Buto na. Suko and management, suko sad ang union. Then, conciliators are brought in. Then, that is the time that you can threaten any way you want, you can make promises. But so long as it is conciliation, no one of them can testify. The conciliator cannot testify. The public official that they called, the mayor etc., in the conciliation. They cannot testify. The conciliator, even if he wants, is prevented by the law to testify. The evidence that he will offer is inadmissible. We heard them said that!!! Your allegations cannot stand because that is privileged. So, remember, the GENERAL RULE is, the employer cannot utter any speech that contain any promise of reward, or threat of reprisal. What is the EXCEPTION, to the rule, is during conciliation and mediation proceeding. The moment that there is conciliator that is there, that is conciliation. Management will say, " sapagkatinuod ba, akoa man tung ihatag ilahang gipangayo pero buang2 man mo, bisan maga itum nlng mu dinha, bisan init na kaau intong strike, mapak2 nalnag ng intong panit dinda, ma-sunburn nlng na, dili gyud ko mahatag. Gibuhian nana niya sa conciliation. Ca he use that as an evidence later on? You cannot. Ma-black and blue k nlng. Why? Because it it privileged. Just like in your evidence, Attorney-client, priest-penitent, spouse. This is the same thing. You cannot use even in fact there is threat of reprisal.
70
Remember this, they are evidence but they are inadmissible. They shall not be used as evidence and the conciliators and similar officials shall not testify in any court or body regarding any matter taken up in the conciliation proceedings. Please remember this 233, because I show a case when the Supreme Court forgot about this. Why? Because there is no Labor expert in the Supreme Court. That is why if there if labor, management and union, and supposed they arrived at compromise agreement and it is only the conciliator who will sign, kaluoy please remember that he is covered by Art. 233. You have to bring to from the National Conciliation and Mediation Board get some other labor official, regional office ba, to sign it, so that he can be called to testify later on if there is a problem because nobody in the NCMB is allowed to testify. Why? Because they are conciliators and the only way that they can encourage people for a possible compromise is because they cannot retaliate. They cannot go to court. But you know just like other government offices, they are very secretive, they don't want to share their glory and accomplishment. Example, nagkasabot na, they will not invite the director of the regional office. You have to insist it, because worse comes worst, then you will have a witness, who is not prevented from testifying. (Rey Mar Ondi) Labrel 08.22.07 (2nd part) Speech of an er containing threat of reprisal: When an er tells his ee that you are under surveillance for your union activities, that is already admitted by the court as threat because the er has no right to put you under surveillance as to that precise cause -- as to whether or not you are engaged in union activities. Because that is your own business, that is not the business of the er. Again another example is when an er questions an ee on his union activities. The ER has no right to do that. Union activity is strictly personal to the ee, and that is his right. So no ER can question-- did you attend the union meeting? That is already ULP. So what if I attended? But if you are absent as an ee does that mean that the er can no longer question you? No, it does not mean that. Nag-absent ka and then sabi ng supervisor mo, san ka kahapon? and you say I attended a union meeting.. that is the end of the interview.. but if dagdagan mo ng Aha! nag-union meeting ka pala ha.. wala na that is already ULP. So pangutan-un ka ee ka, absent ka, wala ka mu-leave daan. and the Supervisor says: where were you yesterday, you cannot say, AHA! ULP! because he has the managerial prerogative to discipline.. It is when the topic of union activities has already surfaced.. When the investigation is still general in nature, there is still no right to self-organization that is violated. Now, what happens in so called BORDERLINE SPEECH? Borderline Speech is speech that is usually written by a lawyer and given to the er to be delivered in such a manner that creates the same effect of speech that is forbidden. Speech that will never be characterized as uttering promises of reward or threat of reprisal but will create the same effect as containing a promise of reward or threat of reprisal. What is an example of that speech? Let's say mgt. gets wind that there is already a union being formed. Then mgt hires a lawyer to try to remedy the damage. So the consultant comes in and this is what you do: Gather all ees and put it to them in no uncertain terms that you don't want the union. So here is the speech.. You are all gathered here because this is very important. It is very impt. because your job might be at stake, the company's business is at stake; everybody is at stake. Now, we know that there is a union that is in the process that is being formed. Dili man na dautan, because in the constitution there is a recognition of your right to self-organization, but no matter how good a thing is sometimes there can be bad effects. That is why we are telling you that you have to think once, twice, thrice because a union makes certain demands. Now we are not saying that you are under the obligation to think once, twice.. no you are not. You can be reckless because the law allows you to be. Now, why do you have to think once, twice? I will not point to theoretical reasons, I will point to our neighbor. Mao man na atong competition tong una. Sila yung number 1, kita number 3 lang. Now, what happened? Nag-union mga trabahante nila.. Pero dili ko gaingon na ang union mao'y na'y sala ana.
71
So see, di mo talaga mahuli! Atras-abante ang speech.. you cannot catch that is is a promise of reward or a threat of reprisal. Because it is a lawyer who knows ULP that wrote this speech. So how is that speech to be characterized? SC says that a borderline speech attains the characterization of its contents and its history. And the SC has laid it down as the TOTALITY OF CONDUCT RULE. If the ER has a whole history of anti-union bias, or worse the er has been convicted of ULP, then the so called captive-audience speech, which is borderline, can be interpreted as ULP speech. But if the er has no history at all of anti-union bias, then that will not be interpreted as ULP. Q: Isn't that a violation of a very important rule in evidence? The Res Alios Inter Acta (2) Rule? [Evidence that one did or did not do a certain thing at a particular time is not admissible as evidence that he did or did not do a similar thing at a subsequent time?] This totality rule.. That the final characterization of a borderline speech by an er is the surrounding history and the circumstances under which that particular speech was delivered, is this a violation of the Res inter aliso acta rule? What is the exception to the res inter alios acta rule? Can you bring up evidence that is a past misdeed and is similar to the issue of the current misdeed? A: You can bring it up not to prove that this act was committed by the same perpetrator but you can bring it up to prove habit. (NB: The rules of evidence must be deep in your bones and in your blood and veins! good luck!:p) So habit -- the listener, by habit, is constrained to append a color to a particularly colorless speech because of habit. The ee listening to a borderline speech will feel that feeling of fear, intimidation, coercion, or restraint if he has been subjected in the past by a clearly colored speech by the same er. That is the whole idea. Ex: Sige ka lang kasab-an sa imong er.. then isa kaadlaw nikalit lang syag atching and you are frightened, or intitmidated because you have been used to scolding by this er. That is the force of habit. So that is borderline speech. Speech written by a lawyer, which does not come out one way or another as a promise of reward or threat of reprisal but because of the context and the history, they carry the same effect on the listener. So that kind of speech is ultimately given the color and character of ULP speech. Now, let us go one by one on Art. 248 ART. 248. Unfair labor practices of employers. - It shall be unlawful for an employer to commit any of the following unfair labor practice: (a) To interfere with, restrain or coerce employees in the exercise of their right to self-organization; This is the generic clause or definition of ULP committed by ers. (b) To require as a condition of employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs; This is a very common ULP and the short cut terminology here is the YELLOW DOG CONTRACT. So this is common.. to require as a condition of employment that an ee shall not become a member of a union, or if he is one that he should resign from such union. (c) To contract out services or functions being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their rights to self-organization ; The leading case here is SHELL OIL VS. CIR . This is called ULP CONTRACTING. You contract out services that are being carried out by union members and in so doing, you remove the union members from your employ, and therefore you are restraining them from their exercise of their right to s.o. Suppose there are union members who are doing janitorial work, and as they retire one by one, you do not hire regular workers to replace them. What you do is you contract out janitorial services to an agency.
72
That is not 248(c) ha, because the reason why the union is getting smaller and smaller is not because mgt. is contracting jobs, but the reason is accretion.. your retirement. When you retire, the number actually goes down. Now, mgt has the prerogative to contract out services. That is one of the rights of mgt. for as long as these services are not directly related to the principal business of the er. Is that going to be counted against you for exercising your right in the LC? Remember there is a difference, ha. If you contract out actual services occupied by union members, then that is ULP. Pero wala na ang union member, ni-retire na.. dili ka mukuha ug lain tao to replace him, imo na lang gi-contract out.. NERI ET AL vs. NLRC -- the SC has said that "this court takes judicial notice of the widespread practice both in the public and private sectors of contracting out the ff. services: janitorial and maintenance services, security services, other technical services." So mgt. can do that.. so long as it does not interfere with the right to s.o. (d) To initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization, including the giving of financial or other support to it or its organizers or supporters; So this is where it is said that it is wrong for mgt. to be good to the union. The mgt cannot be bad to the union, nor can it be good to the union. Mgt. should not help the union.. because if it does, that is called COMPANY UNION. ART. 212(i) "Company union" means any labor organization whose formation, function or administration has been assisted by any act defined as unfair labor practice by this Code. So if you are mgt and muingon ang union sa imo: Sir nagparty man mi sir, pwede ka ba kahatag ug lechon.. Magpadala kag lechon didto, ikaw na nanghatag, ikaw pa ikiha (kasuhan) ug ULP! So what should you do to protect yourself? In the CBA you should put down there the assistance that you can give to the union so that it does not fall under ARt. 248(d) but it will fall under an obligation to comply under the CBA. Now, mgt. will say I do not want to put down there and bind myself perpetually to be giving money to the union. Suppose I don't like the union anymore, I will still be giving to the snake that will bite me?! So what do you do? You put down in particular the help that which is the bare minimum that you are willing to give to the union. For example, mgt will be hereby provide company space to be used by the union as its office. Will provide a bulletin board for the union's exclusive use. Once given, that is already a known expense. Now, suppose you do not want to commit 2 lechons every Christmas, you put down a general assistance clause: Mgt hereby agrees to extend such assistance in cash or in kind or in whatever form acceptable to the union so as to insure industrial peace between the union and mgt. (e) To discriminate in regard to wages, hours of work and other terms and conditions of employment in order to encourage or discourage membership in any labor organization . Nagform na ug union and you say, wala na'y cash advance run ha.. so usbon nimo ang practices. And the only motive for the change in practices is to influence the ees in the exercise of their right to s.o. and that is ULP. So that is a form of discrimination.. when you discriminate in regard to wages, hours of work and other terms and conditions of employment in order to encourage or discourage union membership. You cannot change just because there is right to s.o. Exception: If there is a USC in the CBA. Because if there is a USC, then mgt. must make the ees become members in the union. They must favor membership with the EBA. It says: Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment, except those employees who are already members of another union at the time of the signing of the collective bargaining agreement. Employees of an appropriate bargaining unit who are not members of the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such non-union members accept the benefits under the collective bargaining agreement:Provided, that the individual
73
authorization required under Article 242, paragraph (o) of this Code shall not apply to the non-members of the recognized collective bargaining agent; This is called AGENCY FEES. Agency fees are equivalent in amount to union dues but union dues are paid by union members to the union, while agencies are paid by non members of the union but within the bargaining unit who receive benefits under the CBA. They pay an agency fee to the union. What is the purpose for allowing such agency fees? To remove so-called free riders -- ees who do not bother to become members of the union, but nonetheless enjoy the benefits the union was able to bargain for from mgt. To remove them, then they are also assessed the equivalent of union dues. Q: Can the union collect agency fees even if there is no provision in the CBA that requires agency fees? A: Now, the commentators are divided here. Some say that it is already sufficient that it is provided in Art. 248(e) that a union can collect agency fees. So there is no need to put it in the CBA. The other group says that it must be provided in the CBA. Why? Because the check off of union dues itself (not agency fees) must be provided in the CBA before mgt. can deduct union dues. If it is not provided in the CBA, then it is an unauthorized deduction under Art. 113. ART. 113. Wage deduction. - No employer, in his own behalf or in behalf of any person, shall make any deduction from the wages of his employees , except: (b) For union dues, in cases where the right of the worker or his union to check-off has been recognized by the employer or authorized in writing by the individual worker concerned; So there has to be a CBA provision permitting the check off of union dues. If it is required for union dues to be in the CBA, then with all the more reason that an agency fee be provided in the CBA. Because if it were not, then the non members of the union would have a greater burden to support the union than the union members. You see the reasoning? And this stands to reason, does it not? You are a union member, when can union dues be deducted from you at source? We don't even see it anymore, deducted directly from your payment. Accdg. to Art. 113, only if there is a check off clause in the CBA. Now, you are a non-union member, kanus-a man ka kuhaan ug agency fee? If you receive, accdg. to 248(e), if you receive benefits from the CBA, then you should be deducted. Unwritten here is Art. 113 that it must be provided in the CBA that you must be deducted.. because otherwise, mas mabigat pa ang obligation mo to support the union. Because take note that dues and agency fees springs from the fact of representation. The obligation to pay union dues or agency fees is because of union representation. Union dues are paid by the members of the union and also within the bargaining unit represented by that union. Agency fees are paid by those who are not members of the union but within the bargaining unit and also represented by the union. So the benefits gotten by the Union enshrined in the CBA and now for the fulfillment of the ER is for the benefit of the entire bargaining unit --so therefore you must pay union dues or agency fees. But now what happens if the mgt extends the benefits of the CBA to those outside the bargaining unit? Can the union now say that they must also pay? Remember: I told you that the identity of benefits does not give rise to representation. It only gives rise to the assumption that management wants to be as magnanimous to those outside the bargaining unit as it is to those within the bargaining unit. So therefore, the basic reason for the identity of benefits is the magnanimity of the er and not the representation of the union. That is to be the legal conclusion. (Wise Co vs. NLRC) Remember: That since the payment of union dues and agency fees springs from the fact of representation, the moment representation is ended, even if there is a CBA, there is no more duty to pay union dues (Volkschell vs. Volkschell Labor Union) Here the local was affiliated with a federation, then they disaffiliated. And the CBA provides that the union dues is checked off and given to the federation and the federation will give the share to the local. Now that the local has disaffiliated, the local said to mgt. you should no longer give to the federation, you should give to us because the federation is no longer representing us.
74
The federation says that is what the CBA is saying that it should be giving to us. They might have disaffiliated, but since that is provided in the CBA, until the CBA expires, that is what mgt. should do. So mgt. placed the union dues collected with the DOLE. And it went to the SC and the SC said that the federation no longer has any right to the union dues because it has ceased to represent. No more. The basis of the right to union dues or agency fees is representation, not what is said in the CBA. LabRel 08.23.07 Let's try to finish ULP today so we will have our 2nd exam which covers CBA and ULP. So we have seen ULP by way of discriminating by terms and conditions of work, like wages, hours of works and other terms and conditions because an ee is exercising his right to self-organization. Then we have the exception to that rule. An er is allowed to change the terms and conditions of work in order to encourage union membership if there is a USC in the CBA. Mgt. must encourage union membership in order to fulfill the USC. That is why time and again in the BAR Exams they ask this question: WHAT IS THE RELATIONSHIP BETWEEN A USC AND THE RIGHT TO SELF-ORGANIZATION? Or is the USC in opposition to the right to self-organization? A: That is answered in BASA vs. FOITAF (Federacion Obrera de la Industria Tabaquera y otros Trabajadores) GR L-27113, Nov. 19, 1974 -- The SC has said that a USC is a contractual exception to the freedom to exercise the right to self-organization. So it is an exemption and one that is based on contract. Now, without that exception, you are free to join or not to join. And once you join a labor organization, you are also free leave and form another organization. That flows from the general freedom of association. But once there's a USC,you are bound to that union for the duration of the CBA except on the last 60 days where there is freedom. Reason: To give union strength so that it can negotiate with mgt. on equal footing. The individual ee standing by himself is weak. But all ees banded together in a union are strong and they can negotiate with mgt. in equal footing. So that is the reason why this ostensible limitation to your freedom to associate is allowed is to give strength to the union. (F) To dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code (f) is discriminatory ULP dismissal. So because a worker is complaining about his er on his right to s.o. being curtailed, or restrained, then the er acts by dismissing him. What is the reason for dismissal? It is his right to s.o., that is therefore ULP. How do you distinguish Art. 248(f) dismissal due to ULP and Art. 279 ordinary illegal dismissal: ART. 279. Security of tenure. - In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. So you have taken up illegal dismissal in labstan.. so what is the difference? And there is another dismissal under Art. 118 ART. 118. Retaliatory measures. - It shall be unlawful for an employer to refuse to pay or reduce the wages and benefits, discharge or in any manner discriminate against any employee who has filed any complaint or instituted any proceeding under this Title or has testified or is about to testify in such proceedings. So this is known as Retaliatory ART. 279 ART. 248(f) ART 118
75
dismissal. What are the differences among the three? As to the nature of dismissal As to prescriptive period As to remedy of reinstatement As to right to damages
Dismissal is without cause, whether just or authorized LUMANTA vs. NLRC 4 years Wider opportunity to escape reinstatement No right to damages.
The cause of dismissal is ULP. One year, not 4 years. Reinstatement is mandatory and cannot be excused n/a
Dismissal is with cause, but the cause is illegal. 4 years. Same as 279 You have a right to damages since dismissal is wanton, malicious, malevolent, capricious, whimsical and in bad faith.
1. As to the nature of Dismissal: a. 279 DISMISSAL - This is dismissal without just or authorized cause. The dismissal is illegal because there is no cause, whether just or authorized. b. 118 dismissal -- there is a cause but the cause is illegal. Why is it illegal? Because ee is being dismissed for acting in his own right-that is testifying or about to testify in a proceeding the subj. of the complaint of which is the er for granting below labor standards benefits and wages. So the cause of dismissal is illegal, and in 279 there is no cause. c. 248(f) dismissal -- the cause is ULP. You are being dismissed for exercising your right for s.o. And it is illegal for an er to oppose your exercise of this right. 2. AS TO PRESCRIPTIVE PERIOD a. Prescriptive period of 279 is given in Lumanta vs. NLRC which is 4 years based on the Civil Code, from the time the right of action accrues-- or from time you were illegally dismissed. b. Period of prescription of Art. 118 is also 4 years because it is a form of illegal dismissal. c. But 248(f) dismissal, since it is a dismissal based on ULP, and we have seen that ULP prescribes in one year. Now, a 248(f) dismissal, if not filed within one year can still be filed within 4 years, but this time as an ordinary illegal dismissal. Because if you are dismissed based on your exercise of your right to s.o., that is still illegal dismissal because that is not a just or authorized cause. Can you transform an ordinary illegal dismissal into a ULP dismissal? The answer is no. The transformation is only one way: ULP ---> ordinary illegal dismissal but not Ordinary illegal dismissal ---> ULP dismissal. 3. AS TO THE REMEDY OF REINSTATEMENT a and b. In Art. 279 and in 118, there is a wider opportunity to escape reinstatement by merely paying separation benefits over and above full backwages. When is reinstatement excused? If the position has already been taken by a regular employment and there is no other equivalent position found for the ee illegally dismissed, you can no longer be reinstated but paid separation benefits. c. But in 248(f), that cannot be excused. You have to be reinstated. And the reason for that, the SC said, is if you are excused as an er from reinstating an ee whom you have dismissed by 248(f) then what the law seeks to prevent is actually allowed by law indirectly. And time and again, the SC has said that it is very stringent rules that allow non-reinstatement in cases of dismissal due to ULP. What are some of the causes? When you have reached retirement age.. because it is mandatory that you stop to work, even if you were not dismissed, you would still stop working and it is reasonable that you need not be reinstated. Those are the differences. And then there is a slight difference between 118 and 279. Art. 118 has often been described by the court as a dismissal that is wanton, malevolent, bad faith, malicious and therefore meriting damages. When are you entitled to damages in illegal dismissal? When the manner of illegal dismissal was malicious, malevolent, capricious, whimsical, in bad faith. Those are the adverbs found in the Civil Code that you must memorize! (g) To violate the duty to bargain collectively as prescribed by this Code;
76
Remember: Kiok Loy and Gen. Milling case are the landmark cases you must read. (h) To pay negotiation or attorneys fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute ; In order to stop the deadlock, mgt. pays something to the negotiators or to the officers, then there is an agreement. That is what is sought to be prohibited. Now, does a signing bonus fall under the same category? Is this not violative of 248(h)? A: No, because the signing bonus is given to everybody, therefore it is a benefit. Here in 248(h), what is given is only to the union, or to the officers or to the agents as part of the settlement. Therefore, it is forbidden. Kung union president ka, you are the head of the negotiating panel of the CBA, and you are constructing your house. All of a sudden, naay muabot sa imong construction site usa ka truck nga hollow block, 1 truck of cement, pagtanggap mo agree ka na sa lahat ng counterproposal ng management. That is the same thing here. You are being paid as a union officer as part of the settlement of any issue in the collective bargaining. That is ULP. Now, let me point out to you that for mgt. in this instance to commit ULP, mgt. must pay. But if you go to Art. 249(e), (e) To ask for or accept negotiation or attorneys fees from employers as part of the settlement of any issue in collective bargaining or any other dispute So for mgt. what is outlawed is to pay. For the union, what is outlawed? To ask! The moment that happens, that is ULP. To ask for or accept.. but for mgt. it must be to pay. Consummated.. and the other one not yet consummated, offer pa lang, bawal na. (i) To violate a collective bargaining agreement. Remember: To violate a collective bargaining agreement is now a technical terminology. You only violate a collective bargaining agreement and such violation constitutes ULP, if it involves a gross violation of the CBA. When is it gross? When it is flagrant and/or malicious refusal to comply with an economic provisions of a CBA (Art. 261) So 248(i) is modified by Art. 261.. it says "Accordingly, violations of a Collective Bargaining Agreement, except those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as grievances under the Collective Bargaining Agreement. For purposes of this article, gross violations of Collective Bargaining Agreement shall mean flagrant and/or malicious refusal to comply with the economic provisions of such agreement." Now, it is my submission however, that even if it is ostensibly a flagrant and/or malicious refusal to comply and it involves an economic provision in the CBA, yet it does not constitute ULP if the particular economic provision contains an ambiguous terminology or provision in the CBA. Why is that? Because of Art. 288 "Except as otherwise provided in this Code, or unless the acts complained of hinge on a question of interpretation or implementation of ambiguous provisions of an existing collective bargaining agreement, any violation of the provisions of this Code declared to be unlawful or penal in nature shall be punished x x x" So there can be no violation of the CBA which constitutes ULP if it contains ambiguous provisions. So even if there is an economic provision and there is an ambiguity-- in other words, the terminology is susceptible to two or more interpretations, then there can be no flagrant and/or malicious refusal to comply with the economic provision. So that is the exception to the exception. The provisions of the preceding paragraph notwithstanding, only the officers and agents of corporations, associations or partnerships who have actually participated in, authorized or ratified unfair labor practices shall be held criminally liable.
77
UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS ART. 249. Unfair labor practices of labor organizations. - It shall be unfair labor practice for a labor organization, its officers, agents or representatives: (a) To restrain or coerce employees in the exercise of their right to self-organization. However, a labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of membership; Labor organization therefore, in order to commit ULP must restrain or coerce. It is not enough that it interferes. Because a labor organization can interfere. The union can say, join us! But mgt. cannot say do or do not join that union. That is already ULP, but the Union can say join us, do not join them. So they can interfere. Suppose that they are really lying in order to be elected (EBA).. they say: if you join us, we promise you that there will be a car for every member. We will ask for that in our CBA! Can you not indict him for ULP? You know, no politician has ever been indicted for lying. Those are exaggerations in trade in you Civil Law. Now, suppose you belong to the weaving machine section, 4 kayo.. 3 decides to join the union, but the other one decides not to join the union. So the 3 tell him.. "Tomorrow, we will not talk to you. Bahala ka sa buhay mo!" Is that ULP? No, that is not an actionable wrong.. husbands and wives do that everyday! Suppose the 3 say, pagbantay kasi pagnasira makina mo, bahala ka di namin aayusin yan. Aalis kami. Is that ULP? Still no. The threat in order to be ULP must constitute a crime. Ordinary threats are NOT ACTIONABLE. They do not constitute restraint or coercion. Only when they constitute a crime.. So kung sasabihin ng 3 na: "Magingat ka kasi alam namin san ka nakatira.. madilim pa naman ang daanan baka bigla kang magkaroon ng gripo sa tagiliran" That is already threat. The threat constitutes a crime, is it not? That is the difference between grave threat and slight threat. When grave crime=grave threat; minor felony=slight threat. But short of that, that is not ULP. The workers can interfere with each other. They can try to convince each other. That is the essence of representation: SOLICITATION. (b) To cause or attempt to cause an employer to discriminate against an employee, including discrimination against an employee with respect to whom membership in such organization has been denied or to terminate an employee on any ground other than the usual terms and conditions under which membership or continuation of membership is made available to other members; This is a union taking advantage of the USC causes an ee to be dismissed by the er because the union has first discharged the ee from its rank. This is the ULP pointed to here. (c) To violate the duty, or refuse to bargain collectively with the employer, provided it is the representative of the employees; You go on strike immediately without negotiating with the er. That is one way. (d) To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other things of value, in the nature of an exaction, for services which are not performed or not to be performed, including the demand for fee for union negotiations; This is what you call: "pangilkil". You must grant our request for leaves, otherwise something will happen to your factory. This is actually blackmail. This is very famous with transport workers. (e) To ask for or accept negotiation or attorneys fees from employers as part of the settlement of any issue in collective bargaining or any other dispute; or (f) To violate a collective bargaining agreement.
78
The provisions of the preceding paragraph notwithstanding, only the officers, members of governing boards, representatives or agents or members of labor associations or organizations who have actually participated in, authorized or ratified unfair labor practices shall be held criminally liable. Because the union cannot be subject of a criminal indictment because a juridical person exists by law.. so they cannot be criminally prosecuted. And the basis of the criminal indictment is the natural person's approval of the ULP or acquiescence - authorized, ratified, or participated in. You know the case I told you to read? Insular Life vs. Insular Life.. This is a strike of white collar workers -- the agents or salesmen of insurance policies. Now, the union was divided: some joined the strike, while some did not. The personnel of Ayala were now contacting those who were not joining the strike and telling them: "All you have to do is cross the picket line. Once you have crossed the picket line, you are inside the building.. And inside the building, you are fed. there are cots there. All your stay there is counted as service. Do not worry about your salary, every 15th and 30th it will be brought to your family where they are staying." SC: That is ULP. It is as if you crossed the picket lines because you are trying to influence the union member as to what action to take, and you have no right to do that. A union member's right to strike is entirely his own. You cannot interfere with that right. Even the act of calling the wife and telling them to convince the husbands, that is ULP. That is the meaning of interference. So OK, we are finished with ULP and tell me when our next exam date will be. GOOD LUCK!! -o 0 oLabrel 08.28.07 Title 8 of Book 5 Art. 263 - Strike, Picketing and Lock outs Art. 264 - Prohibited Activities Art. 265 - Improved Offer Balloting Art. 266 - Requirement for arrest and detention Art. 263 is one of the longest provisions in the LC, you have to read that very well. Aside from that, you have to go to Art. 212 which is the provision on definitions: (l) "Labor dispute" includes any controversy or matter concerning terms and conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee. (o) "Strike" means any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. (p) "Lockout" means any temporary refusal of an employer to furnish work as a result of an industrial or labor dispute. (r) "Strike-breaker" means any person who obstructs, impedes, or interferes with by force, violence, coercion, threats, or intimidation any peaceful picketing affecting wages, hours or conditions of work or in the exercise of the right of self-organization or collective bargaining. (r) "Strike-breaker" means any person who obstructs, impedes, or interferes with by force, violence, coercion, threats, or intimidation any peaceful picketing affecting wages, hours or conditions of work or in the exercise of the right of self-organization or collective bargaining. And then the latest implementing rules, there are additional definitions there but I am not too worried about their definitions there because they keep changing. It is the red letter definition that you must be sure about. What is a strike? (CF: Art. 212(o)) So, the elements to that definition: 1. Temporary stoppage of work
79
2. By the concerted action of the ee 3. As a result of a industrial dispute (ID) These 3 elements must be present in a strike. So, what we associate as a strike is not really part of the definition of a strike. When we take a look at workers outside carrying placards, marching and shouting, and then we conclude: "Ah, nagstrike diay sila!". You look at the definition, is that there? The shouting, the carrying of placards? None of that! The essence of a strike is temporary stoppage of work. How is it carried about? By the concerted actions of the ees; the ees acting together. The issue is this, does a strike happen because the union has the right to strike or is it the ees who have the right to strike? Where is the right to strike vested? Is it vested with the union? (Remember that a union is also a person, if you are a LLO, you have a personality separate and distinct from the members) or is it vested with the ees? It would seem that from this definition, it (right to strike) is vested with the ees. But wait a minute (char!), you go to Art. 263(b) (b) Workers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection. The right of legitimate labor organizations to strike and picket and of employers to lockout, consistent with the national interest, shall continue to be recognized and respected. However, no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intra-union disputes . So who has the right to strike under Art. 263(b)? It is a LLO. Who has the right to strike under Art. 212(o)? It is the ees, not the union. If you read Azucena, he will say that it is incorrect to say that it is a LLO that has the right to strike. Accdg. to him, that LLO must be the EBA, otherwise, it has no right to strike. You have the right to strike if you are the EBA. Is that correct? I am not fully in agreement with that because I can think of a situation where even LLO only (not EBA) can go on strike. Even if there is an EBA. When is that? You have a CBA. It is the last 60 days of the CBA, there is still an EBA, is it not? Now, one of the union challenges the incumbent, and the incumbent starts persecuting that LLO, and of course mgt. is all in favor in that because it wants to remain in good terms with the incumbent. Can that LLO go on strike? It can. IF the ees in the BU rally behind the LLO who is not an EBA they cannot be penalized because it is freedom period. You know, you might say that "Fr. you are splitting hairs, you just want to exhibit your __, there is no practical implications". But let me tell you , one of the requirements of a strike is that you must file a notice of strike. If your union files a notice of strike, and let us say that after it has filed such notice of strike (NOS), it loses its personality because by final decision its registration is cancelled/revoked. What happens? The union, let us say, affiliates with a federation to save itself so that it will still have a personality, is there need to file another notice since the first notice was filed by the other personality that is already gone? Now, if it is the ees who have the right to strike then there is no need [to file another notice] because it is still the same group of ees. But if it is the LLO, you need to file another notice because the new federation with which the local affiliates did not file before. So it bears looking into. There is still no decision from the SC, because the SC will have to square two opposing provisions that support the right to strike.. Art. 212(o) which seems to vest the right to strike with the ees collectively, and Art. 263(b) which vests the right to strike primarily with the LLO. I am assuming that you have read your commentaries ha? (hehehe) They do not discuss this, and this is what I am brining out as a refinement of that which you read in your other commentaries. Alright, it says that temporary stoppage of work by the concerted action of employees must result from an industrial or labor dispute. What is an industrial dispute? It is synonymous to a labor dispute. (CF Art. 212(L)) So ID has something to do with either terms or conditions of work or issues of representation. That is the short cut version of the definition. There is a disagreement, a controversy, a dispute between the ER and organized labor as to terms or conditions of work or representation.
80
Now, let me bring it down to the pedestrian level. When we say nagstrike ang jeepney [drivers] run, so there is temporary stoppage of work diba? That is the first element diba, applying it. Second, there is a concerted action of the ees -- of the drivers. So collective action. Third, is there a dispute as to the terms or conditions of work or representation? None. The dispute is about raising the minimum wage, or American Imperialism, or roll back in the price of oil. Are those labor disputes? No. Therefore, that does not qualify as a strike. So if you call it a strike, it is not a legal strike, but a popular notion of a strike which is often erroneous. So there MUST be a labor dispute or ID. And then it says "regardless of whether they stand in the proximate relation of er-ee" Why? I'll give you an example, the case of BROTHERHOOD VS. ZAMORA. [footnote] Zamora then is still the same Zamora now in Congress. That congressman who looks so healthy and seems to have never missed his meals or merienda (Just for laughs). He used to be the last executive secretary of Pres. Marcos. You have the case of San Miguel (SMC). SMC engages an agency to recruit warehouse people to file up their empty cases, to load them in trucks, etc. In other words, unskilled labors. SMC went into contact with Brotherhood. Now, this Brotherhood unskilled laborers said that they should be made permanent because they are working for SMC, Brotherhood is just a labor-only contractor. And therefore, as expressly provided for by the law, there is only one ER -- SMC. So that is the controversy. So they filed a notice of strike and went on strike. SMC's defense is that you cannot go on strike against us because you are not our ees. There is no er-ee relationship between us. Strikey si Brotherhood, ayaw mi strikey. Then they (ees) point to this provision: "regardless of whether they stand in the proximate relation of er-ee". So that is the meaning of that clause. That even if the er-ee is in doubt, not yet established or questionable, there can be a valid strike -- regardless of whether the disputants are in the proximate relation of er-ee. Alright, let us say you are already striking -- Brotherhood is already striking, and then SMC terminates them and they say tan-awa, wala na jud er-ee relationship because you are already terminated. Can you still go on strike? Again, you quote this: regardless of whether the disputants stand x x x x of er-ee.. You can still go on strike. Can employees act together in a concerted manner and there is no stoppage of work -- let us say there are three shifts: a.m., p.m. and graveyard shift. And the union meets all its members and goes to the BU and says, "OK, if you finish your shift, you go to the picket lines" and the next shift continues the work. Is the work stopped? No, there is no work stoppage. Is there picketing, marching, chanting? Yes, there is. But the issue is, is there a strike? No, there is no strike because the essence is: temporary stoppage of work. So therefore, that which we ordinarily associate as a strike, does is not really the essence of a strike. Why all these hoolabaloo on distinctions? Because you have to distinguish between strike and picketing. The difference between a strike and a picket are miles apart. And by decided cases, the SC has laid down several distinctions: 1. The legal basis of a strike is the right to s.o. -- when you organize yourself then you can begin to act in a concerted manner. Concerted means you act together for one common goal. Why? That is the purpose of organizing together. The legal basis of picketing is freedom of speech. Freedom of speech does not need concerted action to be exercised. You do not need a union to exercise freedom of speech. A disgruntled worker who puts on a sandwhich card -- suot syag karton sa iyang atubangan ug
81
karton sa iyang likod; isuwat nya diha: barat akong er, wala ko gipromote 20 years nako nagtrabaho, wala ko gipromote! And then magmarch sya diha sa atubangan sa Manila Hotel. Does he need anybody to accompany him? He is advertising his complaint. Does he need a permit for that? Does he need a notice of picket? No, he does not. Because he is exercising freedom of speech. As long as he does not violate an ordinance -When do you violate an ordinance? Kung gikapoy nakag lakaw lakaw dinha, nipungko naka diha sa kasiras (sidewalk), ayha ka na nagpondo, mahimo na kang dakpon sa pulis. Dili man na mahimog punduhanan diha.. that is res nullius. Nobody owns it but everybody has access to it. Mao na supak na sa balaod nang maglingkod diha bisag unsa pa kabarato imong rambutan or lanzones nga baligya. That is why a picket must be a moving picket.. because if you just stand, you violate other people's right to use that as a passageway. Dapat mulihok jud ka.. you are just like everybody else using it for passage. Di man na mu-explain si Azucena or si Chan. That stems fro m your Civil Law. 2. So who exercises the freedom of speech? The collective or the individual can exercise freedom of speech. But in the right to strike, it is either the collective or the LLO, which is also a product of many individuals. You need a group to go on strike. Picket, worse comes to worst, you do a lone picket--ikaw lang isa. 3. So in contrast to the freedom of speech, an expression of which is picketing, the right to strike is covered by prerequisites. There are many requisites that you have to comply with before you can exercise your right to strike. Whereas in freedom of speech -- cannot be subjet to requisites. That is known in political law as prior restraint. If you require permit for the exercise of freedom of speech then you are already restraining the freedom of speech. What did the SC say? Any type of censorship or prior restraint comes before this Court with a heavy burden of proving its validity. That is the only kind of law or rule that is already presumed invalid. Any manner of censorship is considered prior restraint. There must be compelling reasons to justify a prior restraint. What could that be? During war time. 4. As to susceptibility of being enjoined, the right to strike in rare instances may be enjoined. Freedom of speech cannot be enjoined because that is what the Consti says. The freedom of speech shall not be abridged. If there is abuse, then it should be corrected with more speech, not with the restraining of speech. Outside the two types of speech which is not covered by the freedom of speech, namely libel and pornography, you cannot restrain any type of speech. 5. As to the status as a right, the right to strike is a protected right. That stems from Art. 13, Sec. 3 of the Constitution, from the promise of the State to afford protection to Labor. But the freedom of speech is a privileged right. It enjoys the privilege of being a preferred right in the Constitution. It is the underlying right of many rights. Not all Consti rights in the Bill of Rights is of equal value, and one of the highest rights is freedom of speech. Certainly it is higher than non-impairment of contracts clause.. it is a privileged right. Now, we have seen these three elements in a strike: concerted activity, temporary stoppage of work, and industrial dispute. Now, there is a fourth requirement which you can see only from decided cases. And that is THE WORK STOPPAGE MUST BE DIRECTLY INTENDED. And this is brought out in the case of Philippine Blooming Mills EEs Org vs. PBM STEEL INC 50 SCRA 189 (June 5, 1973) You took this case in Political law, do you remember? The ees of PDM Steel formed into a union, staged a strike and their picket lines were attacked by what they claim were police men in ordinary clothes from Pasay City. Now, the strike was eventually compromised and they lifted the picket lines and they went back to work. But the union members were still agrieved by what the Pasay City Police members did to them. So they decided that they were going to march to Malacanang to protest. So they all went and said, "We will give up work for one day and march to Malacanang so that we will air our grievances to the Executive authorities." Now, when the ER heard about it, the ER asked the union leaders: Is it possible for you to leave behind a skeleton force. Why? Because of the process of making steel -- which needs 3 to 4 days to raise it to a desired temperature to melt the steel, and another 3 to 4 days to cool it down. So if you stop working, you don't only lose 1 day, you lose about the week. So this is what the ERs were asking the union. The union members did not agree -- the er cannot tell us what to do! We will ALL march. So they all marched, and when they came back, all the union leaders were dismissed. Now, the union leaders filed an illegal dismissal complaint. Question, is the dismissal legal?
82
The SC says: " Before this Court are two rights that are conflicting: 1) The right of the ER to profit through his business, and 2) the right of the EEs to exercise a constitutional prerogative -- to peaceably assemble petition the Government for redress of grievances ---> This is the weightier right. Property rights fail in comparison with the right to peaceably assemble and petition the government to address grievances. Why? Because without this right, there is no possible republican democratic system. As to the charge of the ER that these ees were staging an illegal strike therefore they are dismissed-- that accusation is false. Why? Was there concerted activity? YES! Was there a work stoppage? Of course, since all of them went. Was there a labor dispute? There was a labor dispute because the question is, what can these workers do or not do. But the SC said that the work stoppage occurred as a by-product, it was not directly intended. What did they directly intend?They intended to exercise their right to peaceably assemble and petition the Government for redress of grievances. They did not intend to stop working.. they intended to protest. So there is no direct connection to the stoppage of work. Now, this is important for you to understand this because several years later ASSOCIATION OF CONCERNED TEACHERS (ACT) VS. CARINO the former secretary of DECS. The teachers were all given notices: You're fired, all of you! Why? You have left the classroom because you are protesting before Congress or Malacanang. What were they protesting? The non-release of the pay adjustment.. It is already a law.. why do you not implement our raise in wages? Kana ilang reklamo. Froilan Bacungan became their counsel and the argument is this: We did not intend to stop work.. our intention is to protest governmental (non)action of not paying us that which is already provided for under a law. We are not on strike. We are exercising our right to peaceably assemble and petition our government for redress of grievances. What did the SC say? Tell that to the Marines! Tinuod, kung isa ka-adlaw tingali muingon ka na we did not intend to stop working, tinuod siguro na. Pero isa ka-bulan na diha, wala ka nitung-a sa imong classroom, naa ka sa Malacanang sigeg singgit, lahi na na. You intend to stop working. That is the difference. Remember that you must intend to stop the work. It must not be a by product of an action that the workers do as a (matter of) right. Labrel 08.28.07 (part II) Now most of the cases pertain to strikes, not lock-out because lock-out pertains to the withholding of work by the ER as a result of labor dispute. There are very few cases with respect to lock-outs. Just like in ULP, there are hardly any cases of ULP on the part of labor, most are when the er acts. I would just like to bring out to you the particular aspect of government office. The SC's decision is worded: there is as yet no law allowing gov't ees to strike. Now it would seem that it is possible to have a law to grant ees the right to strike. It would seem that that is the implication. Suppose there is a law that is passed granting the gov't ees the right to strike, I think that would be problematic. Why? Because right in the constitution itself, a public office is a public trust. It cannot be based on contract. So even if the law grants, if there is no amendment in the constitution that law can still be questioned if it is constitutional or not. Now, why did the SC say that with respect to gov't ees? The SC said that because in other jurisdictions, gov't ees are granted the right to strike. For instance, in the US, gov't ees have the right to strike. But I believe that the constitution has to be amended as well if that right is to be granted to our gov't ees. Now, if you go on strike and you are gov't ee, that is one of the grounds for dismissal. So all those teachers who went on strike for over a month and did not go back to the classroom and in fact were substituted by new teachers, they lost their employment. All right, let us go to the requisites of a strike. There are several requisites for a strike.
83
The requisites can be divided into two: SUBSTANTIAL AND PROCEDURAL And under this two classificatios, you can also divide them into POSITIVE AND NEGATIVE So, POSITIVE SUBSTANTIAL/PROCEDURAL REQUISITES and NEGATIVE SUBSTANTIAL/PROCEDURAL REQUISITES. So let us begin with NEGATIVE SUBSTANTIAL REQUISITES and there are three: 1. The strike must not be based on intra or inter-union dispute . This requirement is found in Art. 263 (B) " x x x However, no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intraunion disputes. " So, inter-union dispute -- there are two unions that are fighting for the allegiance of the workers. They go on certification election and union A wins, but union B says, we are the real power here. And to prove that we are the real power, let us stage a strike. So what is the ground for the strike? It is an inter-union dispute, and that is not allowed as a ground for strike. So the strike there would be illegal because the ground for which it is alleged to be founded upon is not a valid ground. 2. The strike must not be based on violation of the CBA, except if the violation is gross in character . So not every violation of the CBA can be a ground for strike. Why? Because RA 6715, violations of the CBA was considered as ULP and ULP is a valid ground for a strike. But now, not all violations of a CBA is ULP. When is a violation considered ULP? Only when it is gross in character -- if it involves an economic provision and the violation is flagrant and/or malicious refusal to comply with the provision. Now, I also told you that even if it involves economic provisions but if there are ambiguous terms in the CBA, then it cannot also be an ULP. Why? Because that involves an interpretation of the CBA which is more proper as a grievance machinery subject to end up in a voluntary arbitration. So,that is the second negative substantial requisite. 3. The ground of the strike must not be trivial.. it must not be a trivial ground . What is an example? That is the case of RELIANCE SURETY VS. NLRC 193 SCRA 365 (1990). What happened here? We are talking here about an insurance company-- a funding company. So basically, if you are a funding company, you are engaged in paper work. Now, it so happened that the ER instituted a re-arrangement of the seating plan. Now, after the rearrangement, the union president found himself seated next to the comfort room. And he protested that. And because he was not removed from that position, he declared a strike. The SC said that it is a trivial ground for strike. You cannot make that a ground for strike. Now, when is it trivial? Because in another case, an old old case, obviously what the union was demanding was beyond the reach of the ER to grant, and yet the union insisted on it and declared a strike in order to achieve it even if the union knew that it was beyond the er to grant, the SC said that that was not trivial. In fact, JBL Reyes said that the legality of the strike cannot be made to depend on the reasonableness of the economic demands. Sa ato pa, kung mangayo ang workers ug 1 ka million and dili man jud na mahatag sa management unya magstrike sila, that is not trivial accdg. to the SC. The strike is not illegal, it is a proper strike. Because the reasonableness of the demand does not determine the legality of the strike. Now, JBL Reyes is not a Labor Authority, and yet his decision is very sound. Why is it that reasonableness does not equate to illegality or legality? Because accdg. to JBL Reyes, at one time or another, the improvements that are now part and parcel of labstan, they appeared to be unreasonable. For instance, when the workers demanded that the working hours be reduced to 8 hours, that used to be unreasonable. And yet it had to be fought, it had to be demanded. That's why you cannot make the reasonabless of the demand the yardstick on whether the ground for strike is valid or not. You have to read CALTEX VS PHIL. LABOR ORG. 93 PHIL 294 (1954) and the reiteration of this ruling in SAN CARLOS MILLING VS. CIR 1 SCRA 740 (1961)
84
POSITIVE SUBSTANTIAL REQUISITES 1. The ground for the strike must be based on either a CBA deadlock or an ULP . Those are the two valid grounds for a strike. Now, when is there a deadlock? SAN MIGUEL CORP VS NLRC 304 SCRA 1 (1999) -- "A CB deadlock is a situation where there is failure in the CB negotiations resulting in a stalemate". The negotiations are no longer progressing, it is a stalemate. or under CAPITOL MEDICAL ALLIANCE VS. LAGUESMA 267 SCRA 533 (1997 ) -- " A CB deadlock happens when there is a complete blocking or stoppage resulting from the action of equal or opposing forces. The word is synonymous with the word impasse which presupposes reasonable effort at good faith bargaining which despite noble intentions does not conclude an agreement between the parties." That is a CBA deadlock. Now you can read what is ULP under Art. 248 and Art. 249. And because this is a union [striking], we are only talking about ULP on the part of the ER. 2. The ground for strike must be serious. In the negative, it says it must not be trivial, now it says it must be serious . The strike is supposed to be a remedy of the last resort. It must not be the first thing that you will try. It must be serious ground. So there must be a sort of a history of trying out the simpler and the lesser methods before you resort to a strike because it is serious. 3. Both the purpose and means must be lawful . The way the SC puts it, if your purpose is lawful but your means are unlawful, the strike is illegal. If your purpose is illegal, your means are lawful, the strike is illegal. However, a strike initially began legal may become illegal. That can happen. But an illegal strike can never be made legal in the course of the strike. So it can only move from legal to illegal. What about the means? Violence... not all violence committed during the strike will categorize the strike as illegal. Time and again the SC has said that a strike is actually the extension of the bargaining process, only what is used are economic weapons. The ee withholds his labor, or the er withholds the salary. And it is dependent on how much punishment each party can absorb. And because it is the use of economic weapons, violence is very close and it can intervene, because the use of economic weapons.. they are followed by hot words. Because of economic weapons, there are hot words and hot words lead to blows and blows lead to the use of actual weapons. So the possibility of the use of violence in a strike is inevitable. The law knows that in allowing a strike, it allows violence. There must be violence. So that the thinking of the Court, violence that occur in a strike does not make the strike illegal for as long as the violence is sporadic in nature . It is not pervasive. Because once you have pervasive violence, that is the type of violence that renders the strike illegal. Pervasive violence in a strike is one that is began violently, carried on in violence, sustained in violence. Then that marks the characteristic of a concerted activity as anti-law, anti-order, disruptive to the industrial peace and therefore unlawful. GREENFIELDS VS. RAMOS 326 SCRA 428 (2000) -- If violence is committed on both sides during the strike, such violence cannot be a ground for declaring the strike as illegal. Both parties committed their own violent acts. Labrel 08.29.07 We are in strikes and lock outs. And we discussed yesterday that there is a general strike when people go out to stop working for a cause that is other than a labor disputed. That was brought out in the case of BIFLEX-NAFLU et al vs, FILFLEX GR L-155679, December 19, 2006. Petitioner union members here were fired for undertaking a strike which was declared illegal by the LA, and then the NLRC reversed the LA, and then the CA restored the decision of the LA. So it went to the SC. Now, there are two petitioning unions here affiliated with NAFLU. And they are the respective bargaining agents of Biflex and Filflex. Now, on 10/24/90, the labor sector staged a "welga ng bayan" to protest the accelerating price of oil.
85
On that day, the workers, led by the union officers here, staged a work stoppage which lasted for several days. And then, from then on, the facts vary depending on which side you hear. The union claims that right after the "Welga ng Bayan", they went back to work but they were not accepted. The company says that they did not report to work like they said they would, and in fact, they set up a barricade of tables in the front gate so that others could not go back to work. But the union said that these tables that they put up front were to list down all the names of the people as they report for work, but they were not accepted by the company. Now, the LA ruled that there was an illegal strike. NLRC says that there was no strike, there was just a demonstration and they were locked-out. Then the CA says there was an illegal strike. SC RULING: That petitioners staged a work stoppage on October 24, 1990 in conjunction with the welga ng bayan organized by the labor sector to protest the accelerating prices of oil, it is not disputed. Stoppage of work due to welga ng bayan is in the nature of a general strike, an extended sympathy strike. It affects numerous employers including those who do not have a dispute with their employees regarding their terms and conditions of employment Employees who have no labor dispute with their employer but who, on a day they are scheduled to work, refuse to work and instead join a welga ng bayan commit an illegal work stoppage. Petitioners, nonetheless, assert that when they returned to work the day following the welga ng bayan on October 24, 1990, they were refused entry by the management, allegedly as punishment for their joining the welga. Hence, they claim that they were illegally locked out by respondents. If there was illegal lockout, why, indeed, did not petitioners file a protest with the management or a complaint therefor against respondents? As the Labor Arbiter observed, [t]he inaction of [petitioners] betrays the weakness of their contention for normally a lockedout union will immediately bring management before the bar of justice. Even assuming arguendo that in staging the strike, petitioners had complied with legal formalities, the strike would just the same be illegal, for by blocking the free ingress to and egress from the company premises, they violated Article 264(e) of the Labor Code which provides that [n]o person engaged in picketing shall obstruct the free ingress to or egress from the employers premises for lawful purposes, or obstruct public thoroughfares. Even the NLRC, which ordered their reinstatement, took note of petitioners act of physically blocking and preventing the entry of complainants customers, supplies and even other employees who were not on strike. In fine, the legality of a strike is determined not only by compliance with its legal formalities but also by the means by which it is carried out. Now, this to me is an erroneous ruling. The mere doing of one of the prohibited activities does not convert the strike into an illegal strike. In fact, if that is done, then you can enjoin the prohibited activity . The SC, time and again in many rulings has said that what you can do is you enjoin the prohibited activity, but you cannot enjoin the strike itself. You get the order from the court to stop blocking the ingress/egress, and then you enforce that, get them out. Its up to them if they will continue the strike or not. You will see that in many decisions of the SC. But here, there is a decision that the strike is illegal. They just put that by way of obiter dictum.. but that is an incorrect ruling. So the strike is illegal because there was no notice of strike, there was no strike vote, there was no compliance with the legal formalities, and there is no labor dispute. That is why the strike was held illegal. So welga ng bayan in itself is an illegal strike. You are ees -- you are a union, you have no dispute with your er as to terms and conditions of work, you stop working because of welga ng bayan to protest the rising prices of oil -- that is an illegal strike because there is no labor dispute. So we have seen the substantial negative requisites of a strike. Actually what we are doing is we are reducing in outline form Art. 263 and 264 which contains all the requisites of a lawful strike. We have negative substantial requisites: 1.) that the strike must not be based on intra or inter-union dispute; 2)that the strike must not be based on a violation of the CBA, except when the violation is gross in character
86
(flagrant and/or malicious refusal to comply with the economic provisions of the CBA) and absent any ambiguous terminology in the provisions; 3) that the strike must not be based on trivial grounds as exemplified in RELIANCE SURETY VS. NLRC and not in the case of San Carlos Milling vs. CIR because JBL Reyes has said that the illegality of the strike cannot be made to depend upon the reasonableness of the economic demands of the workers. There are classifications of strike depending on the grounds. There is a so-called economic strike, and there is a so-called an ULP strike. What is an economic strike? It is one which is staged because the workers are demanding something from the ER, and the ER is not legally obliged to grant. That is an economic strike. Patas-an nila ang ilang gipangayo.. now that is based on bargaining, that is not an obligation of the ER to grant. The minimum wage is an obligation that the er must grant under the law, you do not need to demand that by going through strike. But if you demand something higher, and you go on strike, that is an economic demand which the er is not duty bound to grant under the law. A ULP strike is grounded on the fact or allegation that the er has interfered with, restrained or coerced the ees in their exercise of the right to s.o. That is the issue: unfair labor practice. That is called a ULP strike. So, when you take a look here at the grounds for a strike and the demands of the ees are beyond the bounds of reason, that in itself is not the measure of the triviality of their ground for strike. Why? Because according to JBL Reyes, all the benefits that the workers now enjoy were at one time, or another, historically impossible demands. So you cannot make an impossible demand the basis for the declaring the legality or illegality of the strike. But if you are __ just like the President of the union of Reliance Surety, that is different because he was submitting an economic demand. He was complaining that his seat was next to the comfort room. That is a measure of being trivial. POSITIVE SUBSTANTIAL REQUISITES: 1. STRIKE MUST BE BASED ON A CBA DEADLOCK OR ON AN ULP 2. THE STRIKE MUST BE BASED ON SERIOUS GROUNDS 3. THE PURPOSE AND MEANS MUST BOTH BE LAWFUL. Then we have that rule on pervasive violence. Violence as a means that is used in a strike must be pervasive before it can taint the entirety of the strike as unlawful. If it is just sporadic, then that is already foreseen by the law, and it does not call the entirety of the strike illegal. There is another case that says that the violence need not be actually acarried out. The mere eminence of a pervasive capacity for violence is enough to taint the strike illegal. Wa pa'y nahitabo nga violence but it is already imminent and it is pervasive. How was that shown? That was shown in an old old case in La Carlota in Negros Oriental. Sugar Mill there went on strike, and on the first day of strike everybody gathered, and each union member was carrying a weapon of some sort. Mgt. took pictures and then called the military. The SC said that you do not ask that violence first occurs before you declare the strike illegal on the ground of violent means. It is so clear. Tanan na gud nagdala. Wala'y usa nga wala'y dala. Bisan ang tigulang naa dala. If you require that violence first occurs, then that which the law prohibits you first make as a condition for the law takes effect. Let us go to PROCEDURAL REQ'TS FOR A STRIKE. Again we divide it into negative and positive. Negative procedural requisites and positive procedural req'ts. NEGATIVE PROCEDURAL REQ'Ts: 1. The union or the ees must not have violated the duty to bargain. That is found in Art. 264 (a) ART. 264. Prohibited activities. - (a) No labor organization or employer shall declare a strike or lockout without first having bargained collectively in accordance with Title VII of this Book or without first having filed the notice required in the preceding Article or without the necessary strike or lockout vote first having been obtained and reported to the Ministry. So it is a negative procedural req't. How do you comply with it? You must first bargain. You must able to point to evidence that you did bargain.
87
Accdg. to Insurreco Paper Pulp and Project Workers vs. Insurreco 95 Phil 761 (1954) , a strike declared by a union to enforce economic demands without first having given management reasonable time and opportunity to act upon them has been held premature and illegal. If you do not bargain first, then you are making a strike the first solution to your problem, when the strike is supposed to be the last resort. 2. No compulsory or voluntary arbitration of the dispute which is the ground for strike. In other words, the cause or the ground of strike must not have been submitted to voluntary or compulsory arbitration. Why? Because it is supposed to be in the hands of a 3rd party to resolve. Let us say mgt. just like in the PBM case disagrees with what the union wants to undertake -- union wants to march to Malacanang to protest what the plain clothes policemen did, and mgt. receives from the union the word that the union will not compromise with mgt. that not all of them will march. So let us say mgt. immediately dismisses the union leaders. You can file a notice of strike for the dismissal of the union leader because that is discriminatory dismissal -- dismissal that interferes with strictly union affairs. But let us say you do not file a notice of strike for the dismissal. First you go to the LA and file an illegal dismissal complaint. And afterwards because the case is moving so slow, you go on strike for the same cause of action. That will be cleary in violation of the 2nd negative procedural requisite. And what is that? The ground for the strike -- the cause of action -- should not have been given to compulsory or voluntary arbitration. The dispute should not be handed over to voluntary arbitration. Now, please pay special attention that it must be the dispute. There might be several disputes! It may be that the first dispute is submitted to compulsory arbitration in a complaint filed before the LA, and then another dispute occurs, and that is not brought to volunary or compulsory arbitration, then that can still be a ground for a notice of strike. Let us first management dismisses the Pres and the VP. And the union goes to the LA and filed an illegal dismissal complaint. It can no longer go on strike based on that dispute. But let us say that subsequent to the filing of an illegal dismissal complaint, mgt. again dismisses the Secretary and the entire board of directors of the union. That is a separate cause of action. That is a different dispute now. When do you know that it is a new dispute? You know that it is a new dispute if you can file a separate case therefore. If you can file a separate case, then that constitutes another dispute. So remember, it is both compulsory and voluntary arbitration. Why are you prevented from going on strike if the dispute is already in voluntary or compulsory arbitration? Because you are in bad faith. You entrust it [dispute] to a 3rd party for him to decide who is right or wrong and yet you go on strike to force the er to grant what you wish. That is entirely unjust. But you can do it the other way around. Example, you are on strike because management has dismissed the union leaders. And then you file a notice of strike. In the course of the mediation of the NCMB, you agree that you will put it through voluntary arbitration so that you can resolve it fast. The moment you sign the compromise agreement that you will put it through voluntary or compulsory arbitration, you waive your right to strike. No more. So if the following day you change your mind and you go on strike, you are in bad faith. And you are considered to have gone on strike when the dispute is already submitted to voluntary/compulsory arbitration. Take note that you can reverse it -- you have already filed a notice of strike but go through voluntary/compulsory arbitration. But you cannot go the other way. You file a complaint and then midway to the complaint, you file a motion to dismiss of the complaint because you are going to file a notice of strike. No, that is not allowed. There is only one way. From filing of notice of strike to voluntary/compulsory arbitration, and not from arbitration to filing a notice of strike. Now, the most prominent form of compulsory arbitration is when the Sec. of Labor assumes jurisdiction over a labor dispute under Art. 263(G). g) When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return-to-work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary of Labor and
88
Employment or the Commission may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same. In line with the national concern for and the highest respect accorded to the right of patients to life and health, strikes and lockouts in hospitals, clinics and similar medical institutions shall, to every extent possible, be avoided, and all serious efforts, not only by labor and management but government as well, be exhausted to substantially minimize, if not prevent, their adverse effects on such life and health, through the exercise, however legitimate, by labor of its right to strike and by management to lockout. In labor disputes adversely affecting the continued operation of such hospitals, clinics or medical institutions, it shall be the duty of the striking union or locking-out employer to provide and maintain an effective skeletal workforce of medical and other health personnel, whose movement and services shall be unhampered and unrestricted, as are necessary to insure the proper and adequate protection of the life and health of its patients, most especially emergency cases, for the duration of the strike or lockout. In such cases, therefore, the Secretary of Labor and Employment may immediately assume, within twenty four (24) hours from knowledge of the occurrence of such a strike or lockout, jurisdiction over the same or certify it to the Commission for compulsory arbitration. For this purpose, the contending parties are strictly enjoined to comply with such orders, prohibitions and/or injunctions as are issued by the Secretary of Labor and Employment or the Commission, under pain of immediate disciplinary action, including dismissal or loss of employment status or payment by the locking-out employer of backwages, damages and other affirmative relief, even criminal prosecution against either or both of them. The foregoing notwithstanding, the President of the Philippines shall not be precluded from determining the industries that, in his opinion, are indispensable to the national interest, and from intervening at any time and assuming jurisdiction over any such labor dispute in order to settle or terminate the same. That is compulsory arbitration. The moment that is done by the SEC, then ALL strikes are enjoined -- those contemplated, those that are in progress must be stopped because that is a form of compulsory arbitration. Alright, another negative procedural req't: THE STRIKE MUST NOT CONSTITUTE AS A VIOLATION OF THE NO-STRIKE, NO-LOCK OUT CLAUSE. Now, the regional office of the DOLE here considers that a no-strike, no-lockout clause as essential to the CBA. Although the labor code does not say that, you will find that the labor department here considers it as essential to the CBA. So, if your CBA does not contain a nostrike, no-lockout clause, then the DOLE Region 11 will not register your CBA. Now what is this NS,NL Clause? In a no-strike clause, the union and the ees agree that during the life of the CBA, they will not engage in any strike. And the er also agrees that as long as the union promises that it will not go on strike for the duration of the CBA, mgt. will not conduct a lock-out during the life of the CBA. THE SC has said that a NS clause covers only economic strike, it does not cover ULP strikes. Why? Because if it did cover ULP strikes, then a NS clause will open the floodgates of abuse for mgt. Mgt will start committing all these ULPs. Only bargaining deadlocks that cause strike are what are waived by the labor union in a NS clause-- only economic strikes or bargaining deadline strikes. All other strikes, are not waived by the union. POSITIVE PROCEDURAL REQ'TS. The first positive procedural requisite is: A STRIKE NOTICE A union must file a strike notice, where? In the regional office of DOLE that has jurisdiction over the the workplace. Question, is it the labor office or the NCMB where the strike notice must be filed? The primer on strikes issued by the DOLE says that it should be in the NCMB which is wrong. Because the labor code says that it must be with the DOLE. The word precisely used by the red letter of the law is MINISTRY. Art. 263(C) In case of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lockout with the Ministry at least 30 day before the intended date thereof. In cases of unfair labor practice, the period of notice shall be 15 days and in the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members. However, in case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting, where the existence of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately.
89
So it is not with the Board but with the department.. and if you take a look at Art. 212, department means the DOLE. Because if it was through the NCMB, the law could have said "board". But you take a look at the primer of the DOLE and it says that you have to file it with the NCMB. What is the big difference? The big difference is Art. 233 [Privileged communication]. The Board is confidential. There is a 2006 case involving Nissan in Manila where the SC finally berates the head of the NCMB.. "You are supposed to be confidential, why do you say that the ground for strike is non-strikeable?!". So the SC berated finally! There is such a thing as Art. 233. For the first time now. So sa pagkatinuod, file ka sa NCMB and file sad ka sa DOLE aron mahilum ra tanan ba.. but it is with the Dept. Why? Because let us say that there is a controversy whether the notice of strike was filed 15 days before the strike, can the NCMB testify? No, they are supposed to be confidential. That is a problem. That is why they should not be made the recepient, and the law does not make them the recepient of the notice of strike. Now, in the case of Filipino Pipe and Laundry Corp vs. NLRC 318 SCRA 68 (1999), the SC says that failure of the union to serve a copy of the strike notice to the ER makes the strike illegal. He should be given a copy. Now, take a look at the IRR and find out what the notice of strike should contain, because if there is a deficiency in the notice of strike, what is the effect? The effect is, accdg. to the IRR, is that it is as if no notice of strike has been filed. If the notice of strike does not comply substantially to what the notice of strike should contain under the rules to implement the Labor Code, then the effect is it as if no notice of strike has been filed. So the very basic [requirements] must be there: the name of the company, the name of the union, how many total workforce, how many members of the union, how many in the bargaining unit. Now, if you say ULP, then you must recite the acts or omission that constitute the ULP if the strike is grounded on ULP. If the strike is grounded on deadlock, then you must outline, attach a copy of the proposal of the union, then the counter-proposal of the managemet, then a copy of the proposals that have been tentatively agreed upon and then the proposals where the deadlock is grounded. Now if you just say "deadlock", you do not comply with what is given [in the irr], it is as if no notice of strike has been filed. So please, you read the implementing rules. Labrel 09.05.07 (part 1-- Q&A Bar Qs) Labrel 09.05.07 (part 2) Okay, lets go to the requirements for a strike -- we have finished with the procedural negative requirements, we are now down to procedural positive requirements for a strike. And the positive procedural requirements are: 1. strike notice 2. Cooling off period 3. Strike vote 4. Waiting period 5. Compliance with duty to conciliate and mediate NOTICE OF STRIKE These are the 5 main duties. I told you that the strike notice differs depending on the ground of the strike. If it is based on ULP, then after mentioning the name of the union, the name of the er and the address of the er and the union, the after mentioning the names of the members of the union, and the number of those enclosed in the bargaining unit, then that which is different from the notice of strike based on deadlock -In a notice of strike for ULP, you must recite the acts/omissions which constitute ULP. IF you do not do that, then that is a substantial defect, and it is fatal. Because the effect is it is as if there is no notice of strike that has been filed. If you cannot recite the acts or omissions which in effect constitutes ULP, then that is as if there is no ground for strike. Now, if it is a notice of strike based on a bargaining deadlock, then what is different is, you must append a copy of the bargaining proposals presented by the union. You must also attach the counter proposals of the mgt. And third, you must make a recitation on what points, or what proposals have been agreed upon and what proposals are still to be negotiated. And finally, you must zero in on the proposal that is the cause for deadlock.. what proposal constitutes the deadlock.
90
Now, if you do not make that recitation then it as if there is no notice of strike that has been filed. And that is fatal. What is the principle of interpretation of strike laws? It is interpreted strictly against the union. This is one of the rare exceptions in labor law that a labor legislation is interpreted strictly against the labor in cases of doubt. Why? because it injures public welfare; it causes disturbance in society. It breaches industrial peace, therefore there are many more who are injured than those who stand to benefit from a strike. Now, in PAL vs. NLRC, the SC said that when the NCMB downgraded a notice of strike to preventive mediation, then that is a clear showing that there is no ground for strike. You know, the NCMB has a way of categorization [strikes] for purposes of priority. They have limited manpower.. to whom will they send their limited number of conciliators/mediators? You have there strike notice and preventive mediation. Here, there is a brewing dispute that is about to blow up in this workplace. Here is a notice of strike coming from this [other] workplace. So between the two, they will send the mediator/conciliator to the notice of strike because this is already a fullblown dispute. But if a notice of strike is filed and the NCMB does not put in the column of notice of strike but transfers it in the column of preventive mediation, that means that the grounds cited is not a strikeable ground.. it is not ULP, or a bargaining deadlock. It might be a question of interpretation or implementation of a provision of the CBA, or it is not a flagrant and/or malicious refusal to comply with an economic provision.. So therefore, when the NCMB reclassifies you, that shows that you don't have a ground for a strike. So therefore the strike is illegal. Now, the recent issue is: how did they get evidence? Did the NCMB provide evidence? Because Art. 233 says privileged [communication].. The union should have objected when that evidence was offered because that is not for use in any forum. Now, I'll ask you to read NISSAN MOTORS PHILS INC. VS. SEC of LABOR (GR 158190-91, June 21, 2006) -- This is where the SC castigates the head of NCMB and the administrator Olalia. "The annual salary increases of P900.00 for the 1st year, P1,000.00 and P1,100.00 for the 2nd and 3rd years, respectively, which, given the proven continued losses of the Company, are hereby modified to minimize and mitigate its operational losses to: P900.00 annual increase for the initial 3-year term of the CBA, effective upon execution of a new CBA. In this regard, the Court cannot sanction the award made by the public respondent Secretary based ostensibly on the revelation of NCMB Administrator Olalia that was sourced from the confidential position given him by the Company. The reason for this is simple. Article 233 of the Labor Code prohibits the use in evidence of confidential information given during conciliation proceedings. NCMB Administrator Olalia clearly breached this provision of law. Moreover, as correctly pointed out by the Company, this confidential information given to Administrator Olalia was made prior to the Unions slowdown and defiance of the Assumption Order of August 22, 2001 causing it additional losses ." Now, that is different from the strike notice which was allowed by the SC to influence its decision as to the sufficiency of the grounds for strike. COOLING OF PERIOD -- 15 days for ULP strikes, and 30 days for deadlock strikes. When does the CP begin? It begins from the time the notice of strike is served upon the er and upon the DOLE. That is when the strike notice tolls. STRIKE VOTE -When can you take a strike vote? There is no specific time when you can take a strike vote. You can take it during the CP period, or after the CP period. But what is required is that before you take a strike vote, you must make a notification to the DOLE because the DOLE can either supervise the taking of the strike vote, or observe the taking of the strike vote. If it is supervised, it is the DOLE that runs the secret ballot elections. If it is observed by the DOLE, then they can come from the start or after.. there is no need to have their presence before the strike vote. What is the reason why the strikers must give the DOLE at least 24 hours? To give it time to assemble its team in case it decides to supervise the strike vote.
91
Now, take a look at this COCA-COLA VS. NLRC 299 SCRA 410 (1992), the SC said: "Since the notice of strike was submitted to the DOLE on 04.14.87, the 7th day fell on April 21, 1987. Since there is no dispute that the strike that the union struck on April 20, 1987, only the 6th day since the submission of the strike vote, the strike was therefore patently illegal." So they took it out on the next requirement, which is the WAITING PERIOD. This period was only short by one day and yet the SC said it was patently illegal. See the effect? Isa raman na ka-adlaw! Again, what does that tell you? that the strike law is interpreted strictly against the union. When we talk about the waiting period (WP), is it in addition to the CP or can we count it together with the CP if the strike vote [notice dapat!] was taken during the CP? Let us say that the strike notice was filed AUG. 31, 2007. So the beginning of the cooling off period is Sept. 1, diba? Include the last day, do not include the first day. Now, notice of strike Aug 31, cooling off period begins on Sept. 1, and ends on Sept. 15 if based on ULP. Suppose you take the strike vote on Sept. 7 and give the results immediately to the DOLE, can you start counting already the counting of the waiting period so that by Sept. 15, you are finished both with the cooling off period and the waiting period? Or must you wait until Sept. 15, then you count again an additional 7 days for the waiting period? That is the issue Now, if you read the primer for strikes and lock outs, it is in addition to the cooling off period. But if you read the case of National Federation of Sugar Workers vs. Obejera, the SC says that the waiting period can be counted together with the cooling off period and will be only in addition to the cooling off period in so far as there is an excess of the number of days. The DOLE says it must be in addition to.. now which is correct? Now, in the recent cases, the SC quotes the primer as if it were a law when it is a publication of the DOLE. What is purpose of the 7 day waiting period? To give a chance to the members of the union to complain if there was some irregularity in the taking of the strike vote. It is given for the benefit of the union members, not for the er, not for the public. The cooling off period is for the public -- to give mgt and union a chance to reach an amicable settlement short of economic combat known as a strike. That is the reason. Now, the next question is, after the end of the cooling off period, of the waiting period, are you now obliged to [actually] go on strike or can you wait for one year before going on strike? In other words, after fulfilling all the requisites, how long can the union postpone the actual strike? In other words, for how long is a strike vote valid? Art. 263(F) " x x x The decision shall be valid for the duration of the dispute based on substantially the same grounds considered when the strike or lockout vote was taken. x x x" If the ground for strike persist.. they continue, then you have the right to strike at any time, because you have completed the requirements for strike. Art. 264 (f) (A decision to declare a strike must be approved by a majority of the total union membership in the bargaining unit concerned x x x" What does that mean? Absolute majority of the union.. If the total number of members is 100 then in a general meeting, the valid number would be 51. If only 51 is present, they must all vote to strike, otherwise they will not meet this requirement because it says majority of the total union membership in the bargaining unit. I want to bring that to your attention because when we come to improved offer balloting (Art. 265), the majority is different. ART. 265. Improved offer balloting. - In an effort to settle a strike, the Department of Labor and Employment shall conduct a referendum by secret ballot on the improved offer of the employer on or before the 30th day of the strike. When at least a majority of the union
92
members vote to accept the improved offer the striking workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement. To end the strike because the offer was improved, you need only majorit of the union members' votes. To end the strike there is a lesser quantum of votes needed from the union members. Mind you that this Art. 265 applies to DEADLOCK STRIKES. It is my submission that it cannot principally apply to ULP because ULP cannot be compromised. And the landmark case there is a Davao City case: GOTAMCO SAWMILL VS. NLRC. Improved offer balloting, the DOLE initiates and supervises the balloting. It does not require that the majority of all the members vote to end the strike because they have now accepted the increased offer by the mgt. It just requires majority vote of the members.. so quorum then majority. Sa ato pa, if you have 100 members and 51 are there [in the meeting], and of the 51, 26 vote to end the strike on the improved offer, then the strike ends. 26 is not the majority of 100. Why is that? Because if you have any experience at all in strikes, starting from the first day of the strike, there will be less and less people at the picket lines. The longer the strike progresses, the less there will be people there. It will be difficult to get majority. Where will they be? Many of them will try to alleviate the source of sustenance since they will not be receiving salaries [during strike]. Labrel 09.06.07 So we have answered the question for how long is a strike vote valid. And is valid for the duration of the dispute on substantially the same grounds. For as long as the grounds for which the strike notice was founded persist, then you still have the right to strike. You can postpone it as long as the grounds are present. If after a strike has been in progress for several weeks, the union sends notice that they are lifting the picket lines and are returning to work unconditionally, can mgt. turn away ees? Mgt. cannot kick-out the ee. Why? Because a strike does not end er-ee relationship. It is in fact, a continuation of bargaining. I told you yesterday that the SC has said that if the NCMB downgrades the notice of strike to the category of preventive mediation, it means that the ground for strike alleged is not a proper ground-- it is a non-strikeable ground. And therefore the strike is illegal. That is the effect. Now, what is the privilege in good faith error? It is enunciated in ___ vs NLRC 291 SCRA 231(1998). The privilege of good faith normally applies in ULP. A strike is valid if the strikers believe in good faith that the act of the er constitutes ULP, although it was not and that the strike was necessary in order to arrest the evil effexts of ULP acts upon the union and its members. Let us say mgt. terminates the union leader and the union thinks that the reason behind the dismissal is because the union leader is active in exercising their rights. But actually mgt has a ground, let us say he is discovered to have committed theft. So the ground for the strike is a mistake, does that render the strike illegal? SC says that if the privileged of good faith error applies, then the strike is not illegal, eve if there is no existing ground. What is the measure that it is in fact good faith error? The SC says that if a 3rd party, unbiased and uninclined on either side, would interpret the event such that a wrong has been created by the outward appearance of the event, then it is fact is ground for good faith error. May strikers be held liable for derogatory accusations of placards and banners? This is what happened in the PCI Bank 105 SCRA 315 (1993). You know, when the union of PNB went on strike, it carried placards. And one of the placards said that PCI Bank bad accounts transferred to PNB-NIBU. The one who was offended was PCI bank and it sued the union for libeling them during the strike.
93
The SC says 1) A strike is somehow privileged. You do not expect endearing language during a strike. Everybody knows that and so everybody takes whatever is expressed there with a grain of salt. Because language that would even make a sailor blush are what are used. So, the court dismissed the complaint of PCI Bank. There are certain occasions where you cannot take the language at face value. I remember a very important landmark case in the US. (Nixon tapes --> Girls scouts were offended by one of the placards of a girl scout who is pregnant with phrase "Nixon's the One") So magsige mog singgit singgit sa strike.. you shout all sorts of expletives which would otherwise be libelous but is not. Why? Because people expect it. In fact people will not think you are on strike if you do not carry placards. Q: Are the strikers entitled to pay for the duration of the strike? A: NO, they are not entitled. Q: What about those who are not members of the union or the bargaining unit that is the principal of the union who cannot work because there are picket lines? They cannot work for no reason attributable to their fault. Are they not entitled to strike-duration pay? A: And the answer is NO. COMPANY VS. NLU 92 PHIL 575. That is the oldest case that decided that issue. But read the exception to the rule: DAVAO FREE WORKERS VS. CIR 60 SCRA 408 where the SC ordered the er to pay strike-duration pay to non-union members. Now, you have to be familiar with the PROHIBITED PRACTICES in Art. 264. Art. 264 is a litany , a list of of prohibited practices. What are they? 1. Striking without first bargaining: 2. Striking without first filing a notice of strike 3. Striking without conducting a strike vote. Art. 264 -- Prohibited practices : (a) No labor organization or employer shall declare a strike or lockout without first having bargained collectively in accordance with Title VII of this Bookor without first having filed the notice required in the preceding Article or without the necessary strike or lockout vote first having been obtained and reported to the Ministry. 4. Striking after assumption of jurisdiction of the SEC of DOLE or after the Sec.'s certificaton of teh dispute to the NLRC . 5. Striking after the dispute is submitted to compulsory or voluntary arbitration No strike or lockout shall be declared after assumption of jurisdiction by the President or the Minister or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout. 6. Obstructing or impeding picket lines. Art. 264(B) -- you could be an er, a representative of the er, member of the police or other 3rd person, and you obstruct and impede picket lines. (b) No person shall obstruct, impede, or interfere with, by force, violence, coercion, threats or intimidation, any peaceful picketing by employees during any labor controversy or in the exercise of the right to self-organization or collective bargaining, or shall aid or abet such obstruction or interference . 7. Employing strke breakers or allowing one's self to be employed as a strikebreaker (c) No employer shall use or employ any strike-breaker, nor shall any person be employed as a strike-breaker Remember strike breakers have to be distinguished from scabs. A scab is somebody who takes the work and position of a striking worker and continues the work. Now, there is no prohibition of that in the labor code. The prohibition in the LC is strike-breaking. Ramming yourself and breaking the picket lines, destroying the picket lines so you can go in and take over the job of striking workers.
94
So the public has gotten into thinking that the scab must be prohibited by law because most scabs become strike breakers to get into the workplace. But actually, there is prohibition in the LC, what is prohibited is strike breaking. But let us say for instance that you are brought into the workplace without having to pass through the picket lines, and lets say that you are brought there through helicopter or you can fly a broom because you have some magical powers originating from Siquijor, and you go there and you work, you are not violating the law. 8. Escorting those who will replace the striking workers. This is especially true with the police. (d) No public official or employee, including officers and personnel of the New Armed Forces of the Philippines or the Integrated National Police, or armed person, shall bring in, introduce or escort in any manner, any individual who seeks to replace strikers in entering or leaving the premises of a strike area, or work in place of the strikers. The police force shall keep out of the picket lines unless actual violence or other criminal acts occur therein: Provided, That nothing herein shall be interpreted to prevent any public officer from taking any measure necessary to maintain peace and order, protect life and property, and/or enforce the law and legal order. 9. Obstructing, or one who impedes, interferes with by force or violence, coercion, threat or intimidation any peaceful picketing by ees during any labor controversy or in the exercise of the right to self-organization, or shall aid or abet such. Again this is a form of strike breaking. 10. While picketing, shall commit any act of violence, coercion or intimidation, or obstruct the free ingress to or egress from the employers premises for lawful purposes, or obstruct public thoroughfares. This is on the part of the picketers. If the picketers become violent, or if they commence threat or intimidation, then that is also a prohibited practice. I remember a strike here in BPI. They conducted a strike and they had barricades, and anybody who would go to the bank (the customers) they would ask first, wether they will deposit or withdraw, When the client says I am withdrawing, okay you go inside. But if deposit gani, you cannot go in. Now, the very act itself of putting barricades, that is prohibited. What should prevent people from going in? It should be a moving picket, not because you are physically prevented by somebody. So obstructing ingress or egress is a prohibited practice. What is a runaway shop? The premises to which an employer under strike transfers the equipment in order to continue operations despite the strike, that is a runaway shop. It is not the shop that runs away. It is the employer who transfers there in order to carry out work that used to be done in the shop. Is a runaway shop prohibited? Again, there is no prohibition in the LC, you can do it. But if you do that, then the union can also picket the runaway shop. Let us say you are running a laundry/dry cleaning service. Then your ees go on strike. But before they went on strike, you managed to transfer some equipment to your private house in a residential place and you continue to service your client their. The union can therefore picket your residence. Your wife cannot call the police and complain. Then you point to what is written in Art. 211, what is "strike area". Because the definition of a strike area includes a runaway shop which may be picketed. Now, what are the legal remedies against prohibited practices? 1. File an ULP complaint under Art. 217 (L); 2. File a complaint for violation of Art. 264 in relation to Art. 217(A) 3. File a criminal case under Art. 272 (A) ART. 272. Penalties. - (a) Any person violating any of the provisions of Article 264 of this Code shall be punished by a fine of not less than one thousand pesos (P1,000.00) nor more than ten thousand pesos (P10,000.00) and/or imprisonment for not less than three months nor more than three (3) years, or both such fine and imprisonment, at the discretion of the court. Prosecution under this provision shall preclude prosecution for the same act under the Revised Penal Code, and vice versa. 4. File an injunction suit to restrain and enjoin the prohibited acts whether actual or threatened under ARt. 218(E) of the LC and you may file this injunction suit with the NLRC under Rule 58 Sec. 10 (Rules of Court), and there is no need for a bond here.
95
So therefore, if prohibited acts are committed, the strike is not made illegal. So your remedy is not to file a complaint for illegal strike. Your remedy is to stop the activities which are prohibited because Art. 254 says: ART. 254. Injunction prohibited. - No temporary or permanent injunction or restraining order in any case involving or growing out of labor disputes shall be issued by any court or other entity, except as otherwise provided in Articles 218 and 264 of this Code. hence, only the prohibited acts may be enjoined and not the strike itself. The constitutional recognition of the right to strike thus serve as a reminder that injunction should be reduced in the barest minimum. (BISIG NG MGA MANGGAGAWA VS. NLRC 226 SCRA 499, 1995 ) And the prohibition against injunction in labor disputes creates substantive and not only procedural law (CALTEX VS. CIR 44 SCRA 350, 1975). So that is the general rule, NO INJUNCTION WITH RESPECT TO STRIKES. EXCEPTIONS: 1. Manila Bulletin Publications vs. Sanchez 144 S 678 What is the story of Manila Bulletin? You know this was before RA 6715 which allowed supervisors a limited exercise of the right to s.o. So before that, there was only two sided categories for workers: rank-and-file and managerial. What happened was the supervisors of Manila Bulletin formed a union. Then they filed a notice of strike against Manila Bulletin. What did the lawyer of the Manila Bulletin do? Believe it or not, he went straight to the SC on an injunction. Under the constitution, injunctions and prohibitions are concurrent jurisdiction of the SC and the lower courts, and normally, the SC does not entertain it if there is some question of fact. But what did the SC do? It assumed jurisdiction! It went out of its way to make an exception for Manila Bulletin.. and it did that knowingly because it says there, "We are taking jurisdiction over this case on the grounds of equity and justice". And the SC ordered the union to cease and desist in the strike because they have no right (yet) to form and join a union. 2. Art. 263 (G) - Whenever in the judgment of the Sec. there exists a labor dispute in an industry indispensable to the national interest, then the Sec. may assume jurisdiction over the dispute or certify the dispute to the NLRC. Remember, the criteria means that the dispute is occurring in an industry that is indispensable to the national interest. 3. In case of hospitals under 263(G). The Sec. may immediately assume jurisdiction within 24 hours from knowledge of the occurrence of such strike because hospitals are critical to the health and treatment of the ailing public. Once he assumes jurisdiction over the dispute, whether threatened or actual, are enjoined. 4. Sec. 22 of the Gen. Banking Law of 2000 . Any strike or lock-outs involving banks [note: the law does not specify what kind of bank, it may be a rural bank, an Islamic bank] if unsettled after 7 calendar days shall be reported by the Banko Sentral to the Sec of Labor who may assume jurisdiction over the same or certify it to the NLRC for compulsory arbitration. However, the President may at any time intervene and assume jurisdiction. 5. An innocent bystander who stand to suffer grave and irreparable injury because of the strike. MSF TIRE VS. CA 311 SCRA 784 (1999) What is an innocent bystander? In this case, the SC defines what an innocent bystander is NOT. You know the original er here, against whom the union struck, was a vulcanizing and tire repair company. And what happened? After 2 months of the strike, the er gave up. The er approached a foreign company, a subsidiary of CYAM CEMENT. It was CYAM Tires who took over this company (MSF). But the way they took over was this: CYAM tire and the old tire company formed a corporation. 60% owned by the old er and 40% owned by CYAM. The land was transferred to that corporation. And then you have a 2nd Corp. which is MSF Tire --owned 20% by the original er and 80% by Cyam Tire and they owned all the improvements, machineries and other assets. It is this company now that goes to the
96
regular courts to ask for an injunction to stop the strike. Because accdg. to them, we are an innocent bystander, we are not your original er and you are now striking against us. The SC says you are not an innocent 3rd party because you are privy to the dispute. You bought it during the dispute. So, if let us say you are one of the concessionaires of GMall. You have a hole in the wall selling fishballs. So one morning you go there to prepare and then you see that the ees of Gaisano Mall are on strike. Can you go to the regular court -- because you cannot go to the NLRC since there is no er-ee relationship -- and ask for an injunction to stop the strike because you are prejudiced? The answer is NO.. you are privy by contract with Gaisano. When you entered into the contract, you must have known that you will be affected if there is a labor dispute there. So you are not an innocent 3rd party. If you want to find out who is an innocent bystander, you go to Liwayway vs. CIR Liwayway Publication (LP) is owned by the controlling interest of Manila Bulletin. So naturally, LP (which has its own printing press) and MB (which also has its own printing press) are located within the same premises in Port Area, Manila. Now, there is only one entrance. [Remember drawing on the board]. The ees of MB went on strike against MB, but instead of picketing here [in front of MB], they picketed [at the entrance]. Now, LP is a corporation separate and distinct from MB. So LP goes to the courts asking for an injunction to stop these workers from picketing and blocking the entrance. So they are asking for an injunction to stop the strike. You should carry out their picketing before MB. The answer of the strikers is this: You should disregard the separate and distinct personality of LP because the controlling interest is the same as that of MB. SC says that until you can show that the separate and distinct personality [of LP] is used to perpetuate fraud, escape and obligation or to deprive your right to strike, you cannot disregard the separate and distinct personality. So you must stop your picketing at the entrance, you must picket [in front of MB]. Because that LP is an innocent bystander. That is the meaning of an innocent bystander. NOT MSF Rubber that is considered as an innocent bystander. Labrel 09.12.07 So we've been through the prohibited practices and what are the legal remedies. Now, let me just point out that under Art. 218(E), it is only the NLRC that can issue an injunction or a restraining order. So, for instance you are the employer, and a strike is conducted and you file an illegal strike complaint. It must be filed with the LA because under 217(A), exclusive and original jurisdiction [of LA], the legality or illegality of strikes is with the LA. Now, so you question the legality of the strike on the grounds that there are requirements that are missing and have not been complied with. That is the cause of action. And in the course of the strike, they are barricading the entrance -- that is a prohibited practice. Now, the LA cannot issue an injunction. The LA cannot resort to a restraining order. So you have to go up to the Commission, the higher appellate body, to ask for an injunction. Of course, it [order] has to be executed by order of the Arbiter, but the command must come from the NLRC. Why? Because the LA does not have the power. The one who has the power by virtue of Art. 218 is the Commission. ART. 218. Powers of the Commission. - The Commission shall have the power and authority: (a) x x x x (e) To enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts or to require the performance of a particular act in any labor dispute which, if not restrained or performed forthwith, may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party: Provided, That no temporary or permanent injunction in any case involving or growing out of a labor dispute as defined in this Code shall be issued except after hearing the testimony of witnesses, with opportunity for cross-examination, in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and only after a finding of fact by the Commission, to the effect x x x x
97
Now, take a look at Art. 217(A) ART. 217. Jurisdiction of the Labor Arbiters and the Commission. - (a) Except as otherwise provided under this Code, the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the following cases involving all workers, whether agricultural or non-agricultural: (1) x xx 5. Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts; and So that is where you file [for questions involving legality of strike], but if you want a restraining order, you go to the Commission. You have seen the exceptions to the gen rule that a strike cannot be enjoined. And one of those exceptions is Art. 263(G). (g) When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return-to-work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary of Labor and Employment or the Commission may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same. In line with the national concern for and the highest respect accorded to the right of patients to life and health, strikes and lockouts in hospitals, clinics and similar medical institutions shall, to every extent possible, be avoided, and all serious efforts, not only by labor and management but government as well, be exhausted to substantially minimize, if not prevent, their adverse effects on such life and health, through the exercise, however legitimate, by labor of its right to strike and by management to lockout. In labor disputes adversely affecting the continued operation of such hospitals, clinics or medical institutions, it shall be the duty of the striking union or locking-out employer to provide and maintain an effective skeletal workforce of medical and other health personnel, whose movement and services shall be unhampered and unrestricted, as are necessary to insure the proper and adequate protection of the life and health of its patients, most especially emergency cases, for the duration of the strike or lockout. In such cases, therefore, the Secretary of Labor and Employment may immediately assume, within twenty four (24) hours from knowledge of the occurrence of such a strike or lockout, jurisdiction over the same or certify it to the Commission for compulsory arbitration. For this purpose, the contending parties are strictly enjoined to comply with such orders, prohibitions and/or injunctions as are issued by the Secretary of Labor and Employment or the Commission, under pain of immediate disciplinary action, including dismissal or loss of employment status or payment by the locking-out employer of backwages, damages and other affirmative relief, even criminal prosecution against either or both of them. The foregoing notwithstanding, the President of the Philippines shall not be precluded from determining the industries that, in his opinion, are indispensable to the national interest, and from intervening at any time and assuming jurisdiction over any such labor dispute in order to settle or terminate the same. Now, let me point out to you that under Art. 217(b)The NLRC seems to have no original jurisdiction because all its jurisdiction are appellate. Take a look at that: (b) The Commission shall have exclusive appellate jurisdiction over all cases decided by Labor Arbiters . It seems to have no original jurisdiction. But then if you go to Art. 263(G), that is the original exclusive jurisdiction of the NLRC, when the Sec certifies a labor dispute to the NLRC because it involves a dispute in an industry indispensable to the national interest. See, the Sec has a choice under Art. 263(G)..
98
"When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration" --> this is the original jurisdiction [of the NLRC] A word about "indispensable to the national interest" The original wording of this particular provision (when it became effective on Nov. 1, 1974) was " a labor dispute vital to the national interest". That was the original text. And that was taken from Gen. Order #5 which followed the declaration of martial law. GO#5 prohibited strikes and lock-outs in industries vital to national interest. It was accompanied by Letter of Instruction (LOI) # 368 issued by Pres. Marcos on Jan. 26, 1976 and which contained a list of industries which were considered vital to national interest. So any strike or lock-out under the firms or industries listed were considered illegal. Now, subsequently, there was election during martial law creating the BP Assembly. They were all called Ministers. Now, Sec. 11 of BP Blg. 130 amended Art. 263 mentioned " industries which were affecting the national interest " and there was an enumeration: public utilities, corporations engaged in the making or distribution of energies, banks, hospitals and those within the export processing zone. That was the next development. Finally, there was RA 6715 which amended the Labor Code and became effective March 31, 1989.. " indispensable to the national interest" So RA 6715 amended Art. 263 and deleted the enumeration of companies and industries and changed it to "indispensable to the national interest". Now, in the landmark case of FREE TELEPHONE UNION VS. MINISTER 108 SCRA 757 (1981) the Court en banc explained what this Art. 263(G) is all about. This is not an undue delegation of legislative power because there is a complete policy and the job of the Exec. is to determine whether the set of circumstances obtaining fits what the law describes the policy to be-- that industries indispensable to the national interest for the sake of the general welfare should not be deterred by strikes. All the executive has to do is to determine whether that industry is indispensable to the national interest. Clearly, ADDU is not indispensable to the national interest. You can imagine the rest of the Philippines moving along without ADDU. But why is it that in 1986, during the strike here, the Sec. assumed jurisdiction over the dispute. If you go through the records of SCRA -- many cases that the Sec. assumed jurisdiction. Again, there's this landmark case of St. Scholastica's College, the Sec. assumed jurisdiction over the dispute. If Addu is not indispensable to the national interest, a fortiori (all the more) is St. Scholastica. So why is it that the Sec. can almost loosely apply his judgment as to what industries are indispensable to national interest? CJ Fernando says, it behooves upon the Court to assume a becoming modesty when it comes to the exercise of powers of the Executive when that power is specifically prescribed by law as belonging to it for its exercise. Because the law has granted that power to the Sec., the alter ego of the President, in fact the Pres. is also given that power in the same provision.. then the initial and the habitual stance of the Judiciary should be hands-off. That is an exercise of discretion, and the benefit of the doubt is that he is exercising it properly. When can the judiciary can intervene? Only when the executive commits a grave abuse of discretion. So the modesty of one branch of government refraining from interfering with another branch of government. So, have there been instances where the SC has in fact censured the Sec for grave abuse of discretion? There are cases which I have seen: 1. GPE Directories vs. Sanchez 197 S 452 (1991) , but the SC did not stop the Sec from assuming jurisdiction. But in the decision, in the later part before the dispositive portion, the SC just says by way of obiter dictum, that it did not believe that the industry was indispensable to the national interest.
99
Salesmen of the yellow pages went on strike. And one of the issues there was the prolonged period of probation of GPE because they had a probationary period of 1 year. The SC upheld that the period provided for in Book 6 is not mandatory, you can have a probationary period of longer than 6 months although the SC says that it does not believe... 2. PHIMCO VS. BRILLANTES 304 S 747 (1999). Here, the SC says the Sec. committed grave abuse of discretion for assuming jurisdiction over a labor dispute occurring in Phimco Industry. Phimco is the makers of matches. I believe that matches are vital to the national interest, otherwise we will go back to the caveman era. And yet, here, the SC censured the Sec. for assuming jurisdiction because the Sec provided the ground for nullifying its order. You know in an order for assuming jurisdiction, you have "whereas" clauses. And in the whereas clauses here, "Whereas, the strike has caused problems to the surrounding community of Phimco" "Whereas, the strike cannot be considered as occuring in an industry indispensable to the national interest" There is an admission by the Sec -- you have an admission by the power yielder that his powers are not called for -- you are forcing the SC to shoot you down. "The respondent Labor Sec. admits this fact expressly declaring that the case at bar does not fall within the strict categorization imbued with national interest. HE nevertheless assumed jurisdiction over the dispute with Phimco Industries" So therefore, the SC castigated the Secretary. It is not the first time that the Sec. assumed jurisdiction over disputes in Phimco and the SC did not castigate them. Kani lang. Because I don't think Brillantes had any legal adviser. But there are many cases where the SC reiterates the right of the President in assuming jurisdiction. (CF last paragraph) Effects of Assumption of Jurisdiction: 1. All strikes are enjoined. And it could be a strike that is happening or still threatened because they are still waiting for the cooling off period to be consumed; or the waiting period to lapse. But once the Pres/Sec assumes jurisdiction, all strikes are enjoined. Let us say that you are an aggrieved party.. you are a union and the strike is your strongest weapon -- that is how you can make the company agree.. therefore you appeal to the CA asking for a restraining order directing the Sec. of Labor not to assume jurisdiction because it is highly irregular that the industry is indispensable to the national interest. And you say, pending the resolution of my MFR, I should be allowed to continue on strike. Is that correct? No, once the assumption of jurisdiction is done, all strikes are AUTOMATICALLY restrained. Now, technically speaking, all those assumption of jurisdiction carry with them an ancillary order -- RETURN TO WORK ORDER, ER ACCEPT THE WORKERS. Suppose the Sec. forgets that order and just says I am assuming jurisdiction over this labor dispute, does that give you an excuse to still continue your strike pending the explicit order from the SEC? No, even if the Sec. forgets that order, that order is contained in the assumption of jurisdiction because that is what Art. 263(G) says. What is the consequence if you prolong your strike? If you do not obey immediately? The consequence is ST. SCHOLASTICAS VS. SEC. -- All those who participated in the strike, whether they be the leaders or mere workers, they lose their employment status. Thats the end of them. You can terminate them. Remember that in an illegal strike, who can be terminated? Only the leaders who have assented to, or ordered, or participated in the strike. But the ordinary union members does not lose their employment status. That is different if it is a prohibited strike -- a strike that is continued despite the issuance of an assumption of jurisdiction order.
100
Now, when should you obey? Immediately, without a need for a writ of execution. There is a decided case, SSW, they were delayed in obeying for only one day, and the SC authorized the wholesale dismissal of everybody. Why? The return to work order is issued not for the benefit of any of the parties in the strike. But it is issued for the benefit of the entire nation because it is indispensible to the national interest. Therefore the real party in interest is the nation and therefore it does not need any motion to execute the order. There was one case where the hearing officer involved, instead of ordering that the workers comply with the return to work order, he modified the order and said, Ok, just lie low.. you do not need to return to work because the situation is so hot, so dangerous.. so no need to actually return to work because of the animosity. The SC said that that is a violation of your powers as a hearing officer. You know what happens is this: REMEDIAL PATH OF DISPUTES INVOLVING INDUSTRIES INDISPENSABLE TO NATIONAL INTEREST.
Assumption of Jurisdiction Labor dispute Regional Dir. Hearing Officer NLRC Certification to NLRC Executive Arbiter SEC Court of Appeals Supreme Court
*In either case, there must be immediate enjoinment of any strike and to be done ASAP. * This is not in any way fixed. Because at any stage the parties can opt for voluntary arbitration, even if it is already with the Supreme Court.
When the SEC assumes jurisdiction, do not for a moment think that the Sec. himself will come down and say where is that dispute? No, he will delegate to the Regional Director of Labor that has jurisdiction over the workplace where the dispute is. The RD becomes the hearing officer and receives position paper, evidence, etc. And it is from him that actually the parties go for interlocutory relief. For example, you say, we have all returned to work.. and the mgt says, naa pa man lagi mga tawo beh, kinsa man na? Those are our sympathizers! Kami we have returned to work. The ER goes to the RD and the RD goes to the SEC and the SEC issues a directive to the RD who will translate it to an actual order as a hearing officer.
If it is a certification to the NLRC: You know very well that there are 5 division of the NLRC and in each division, there are 3 Commissioners. The 1st 2 divisions handle the NCR. The 3rd division handles all of Luzon. The 4th handles Cebu and the Visayas and the 5th is in Cagayan de Oro and handles Mindanao. So the divisions designate the Executive Arbiters. That is where you present your position papers, etc. Now, how many of you still remember you political law? Administrative due process. ANG TIBAY VS. CIR -- that is taken from assumption of jurisdiction [in Labor]
When there is a hearing officer.. the one who decides the case must take into consideration the evidence presented. But he is not there when the evidence was presented. It is in the report by the hearing officer. He must not only rely on the report of his subordinates but he must also make his own judgment. So he must review the case. So there will be hearings, and then the RD will make his findings of facts and recommendations. The Executive Arbiter will also make his findings of facts and recommendations. And then the Sec/NLRC will come up with his order. Okay, so we have seen 3 effects: 1. enjoining of all strikes; 2. return to work; 3. ER is made to accept all workers; With respect to the 3rd effect, there is a recent case involving Davao City -- UIC vs. Sec.
101
This is what happened -- The basic controversy was what is included in the bargaining unit. Does it include persons who are given faculty status but who are not really teaching, like librarians, counselors? Does it include those who are teaching and at the same time holding supervisory positions, like chairmen of divisions. During the conciliation and mediation before the strike, the chairpersons agreed that they will submit the issue to voluntary arbitration. So the issue of the dept. heads were left to the voluntary arbitrator to decide. In the meantime, the other issues kept on going until finally, the cooling off and waiting period lapsed, the strike vote was go to strike, and in fact they went on strike. During the strike, the Sec. assumed jurisdiction. So return to work everybody! But before the Sec. assumed jurisdiction, the labor voluntary arbitrator deciding the case of these chairpersons arrived at a decision that they were not included in the bargaining unit because they are supervisory. So it is right for them that they be left out. And yet they insisted on going on strike, so therefore, they were kicked out, dismissed. Now, the question is, are they included in the return to work order? Do they belong to the group of ees that the ER must accept even if they were terminated and their termination was sanctioned by the voluntary arbitrator in a judgment that has become final and executory? Its not the same as like this: There is a union being formed, and mgt. singles out the leaders of the union. Leaders are dismissed. That is the cause of the strike, because they were dismissed. If the Sec. assumes jurisdiction, they (leaders) are included in the return to work. But here, there is a finding by the VA that they do not belong to the bargaining unit and therefore defied the order by going to strike. So are they included? Yes, accdg. to the SC, they are included. Because the whole idea of return to work is to return to the status quo ante bellum. You return to the situation before there was disruption of the dispute into open hostility. You return to the situation to restore what has happened before the dispute. That ruling was reiterated in PLDT vs. Sec. The same thing. The 1st 500 telephone operators who were terminated because they were found to be no longer necessary. Half of them filed a case of illegal termination. The other half joined on strike. There was a judgment was well and in its right to invoke an authorized cause for dismissal because they are redundant and no longer necessary and therefore can be terminated. Now, when the rest of the union went on strike, the Sec. assumed jurisdiction. Return to work! Are those who brought the case included when the order has become final and executory? YES! To return to the status quo ante. Now, once you have returned and the Sec has decided the case, the next consequence of assumption of jurisdiction is that ALL OTHER CASES PENDING IN OTHER FORUM MUST BE CONSOLIDATED WITH THE SEC, OR NLRC SO THAT THERE IS A WHOLESALE SETTLEMENT OF THE DISPUTE. If there is a case pending with voluntary arbitration but the parties now choose to continue with the dispute, there is a consolidation. Why? So that there is a wholesale chance of resolving the dispute, that is the reason. Now, my only CAVEAT with that ruling because that is an old ruling -- an old ruling before there was a change/amendment of remedies, namely that from the Sec. you cannot go to the SC, you still have to go to the CA. So the Sec. decision in an assumption of jurisdiction case is reviewable by the Court of Appeals. The judgments and orders of the Commission in a certified case is reviewable by the Court of Appeals. Let us say that for instance, between the same parties, there is already a case on appeal in the CA and then there is an assumption of jurisdiction. Don't tell me that that case will also be brought back and consolidated here. Because it is the CA who reviews first the judgment of the Sec and the NLRC. So that is what to me is a necessary consequence. There is no ruling yet from the SC. READ: 1. Nissan Motors vs. Sec. 491 S 604 (2006) because in this case, the SC makes an exception to the gen. rule that all those who participate in a prohibited strike -- namely a strike that is conducted or prolonged even after assumption of jurisdiction or certification of the dispute to the Commission -- that all should be dismissed. The SC makes an exception because the Sec. merely suspends all workers, and the argument of the Sec is IN PARI DELICTO.
102
Here, it is not only the workers who defied the law, but also the ER at one point defied the law of return to work. So therefore, he allowed suspension. So that is a recognized decision. And that is the first time there is an exception.. but of course this is not yet en banc. Alright, we are through with strikes and lock-outs and we are now ready to take on RA 9481 because there are amendments. 3 LABREL 09.19.07 CF Diagram for Dispute Settlement Alright, starting from the left, you have the first instance is LA Art. 217 and it gives you the list of the classes of cases under the LA. Take a look from the LA you go to the NLRC. And then from the NLRC, by virtue of St. Martin Funeral Homes 1998 case, you go to the Court of Appeals. And from the CA you go to the SC. Those are the list of cases, you read those one by one. So we are just following the broad outline. Now, the jurisdiction of the Labor Arbiter is found in Art. 217 subparagraph(a). That is basically the list of most of the jurisdiction of the LA. Are there other classes of cases not otherwise found in Art. 217 that belong to the exclusive jurisdiction of the LA? The answer is YES. Where is that? For example of violation of compromise agreement, Art. 227. That is found outside Art. 217. OR violation of overseas employment contract, that is found in Sec. 10, RA 8042, which grants now jurisdiction to the LA of contract violations of overseas employment. And then you have ART. 124, cases of wage distortion when there is no union, no CBA involved. So those are all still exclusive jurisdiction of the LA but not contained in Art. 217. Let us go to the Regional Director of Labor. Under that column, you have two subcolumns, one is Art. 129, the adjudicatory jurisdiction of RD, and the 2nd is ARt. 128 -- visitorial powers of the RD. So Art. 129 and 128 of the Labor Code. From the RD's decision, where do you go? IF it is adjudicatory decision, you go to the NLRC. If it is visitorial powers, you go to the office of the Sec. of Labor. From the NLRC, you go to the CA then to the SC. From the Sec. of Labor, you go to the CA and then to the SC. So take a look at the arrows because cases decided by the RD of Labor have at least 2 paths to follow -- NLRC or Sec. of Labor. Now, take a look at the original exclusive jurisdiction when it arises from disputes in industries indispensable to the national interest. Take a look at that square there: strikes and lock-outs indispensable to the national interest. Now, initially, the NCMB intervenes. Initial jurisdiction for conciliation.. many of course calls it jurisdiction but that of course, is not jurisdiction because the NCMB has no jurisdiction. Why? What is jurisdiction? The power to hear and decide a case. The NCMB does not hear and decide, it is the parties who arrive at a decision or a resolution of their dispute through the mediation of the NCMB. So the NCMB has no jurisdiction -- it has powers. It may be asked by one of the parties and it may intervene, or it may intervene and conciliate a case motu proprio. So it has powers but it has no jurisdiction. The 3rd column, you have the cases under POEA. Remember that the POEA used to handle cases involving violation of overseas contracts. Now, the POEA no longer has that jurisdiction.
3
Please see end of transcribed notes since the amendments do not form part of the coverage of the 3rd Exam.
103
What put an end to that? RA 8042, Sec. 10. (It is the migrant workers' act) So what is the jurisdiction left to the POEA? IT is the jurisdiction involving the registration of recruitment agencies, or placement agencies; the cancellation or suspension of these agencies; and disciplinary actions vs. OCWs. You did not pass through the old classifications of the OCWs. Overseas contract workers used to be classified into land-based and seabased workers. That is why you have the Seaman Board. Now, there is only the Labor Arbiter, he tries the seaman and normally the respondent is the agent or manning agency. The respondent is not the shipping lines, the owner because they are outside the territorial jurisdiction. If you are a placement or recruitment agency for overseas workers, you are called a manning agency. Recruitment agencies, these are those that charge a fee. Placement agencies do not charge fees that is why they are granted an authority to submit to place (?). But the recruitment agency is given a license because they charge. So, POEA, their jurisdiction is with respect to registration of manning agencies, recruitment agencies, placement agencies. Unsa man nang mga disciplinary actions of the OCW's? That was asked in the recent bar exams. Those who will deploy even without clearance. In other words, the Gov't has already banned employment in Iraq and ikaw, muadto gihapon ka sa Iraq, you will be disciplined if you will be caught. And not only that, there was a whole group who admitted that at one point, they were brought to Iraq -- they responded to a highly skilled construction advertisement for engineers. Abi nila paingon silag Dubai, pero pag-abot nilag Dubain, nibalhin silang laing eroplano unya naa sila'y mga guwardiya. But we did not volunteer for Iraq! We were going to Dubai! Too late, you are now going to Iraq. (wee!) So they are there.. some of them escaped. Are they going to be disciplined? Remember that you have to be 21 years old to be an entertainer. What happens if you are found in Japan and you found to be below 21? There is immediate repatriation because of that. CF RA 8042 Your passport will be cancelled the moment you are back here. That is the penalty. And you cannot be issued an OCW passport earlier than 5 years. So, that is all in the implementing rules of 8042. So those are the kinds of cases in disciplinary actions. Now, the fourth column: Bureau of Labor Relations (in Manila). Original Jurisdiction: in Art. 226: ART. 226. Bureau of Labor Relations. - The Bureau of Labor Relations and the Labor Relations Divisions in the regional offices of the Department of Labor, shall have original and exclusive authority to act, at their own initiative or upon request of either or both parties, on all inter-union and intra-union conflicts, and all disputes, grievances or problems arising from or affecting labor-management relations in all workplaces, whether agricultural or non-agricultural, except those arising from the implementation or interpretation of collective bargaining agreements which shall be the subject of grievance procedure and/or voluntary arbitration. The Bureau shall have fifteen (15) working days to act on labor cases before it, subject to extension by agreement of the parties. And then you have inter-union conflicts (conflicts between unions). A conflict between unions happens when a federation split and there are now two federations. And they are fighting each other. And normally, when a federation split, you are fighting about money and property. Many people say, principle, but there is no principle.. they are fighting about money. Now interunion conflicts, that is covered in the Bureau itself. You know, how many locals must a federation have? At least 10 diba? Suppose a federation slip and they have at least 10 each [locals], they are a bona fide federation each by their own right. And they fight over property. Sometimes the property cannot be divided. What happens if one of the federation is on that property, has an office there. What will happen? Will you divide it? What happens to the office? So these are the types of issues that is dealt with by the Bureau.
104
There are offices in the BLR that are attached to the Regional units, that is the subject matter of the next column. Thats why it says regional office. But regional office there means labor relations bureau personnel attached to the unit. You have the Med-Arbiter. There you have petitions for cert. elections, petitions for referendum, visitorial powers of the BLR. So you have those classes of cases involving intra-union, inter-union, disciplinary cases arising from Art. 241. Remember Art. 241, that is very long -- why will this not fall under the Bureau? Because ordinarily it is a lone worker who is complaining. Unsaon nya pag-abot sa Manila wala man syay kwarta? Now, the decisions of the Med-arbiter -- this local office-- will be appealed to the BLR (under ARt. 236) and then it goes to the CA and then to the SC. If it is a med-arbiter deciding on a petition for cert. election, it normally goes to the Office of the Sec. of Labor then to the CA then to the SC. Now, the last column is grievance machinery: Art. 260. This is issues of interpretation and implementation of CBA provisions and/or enforcement and interpretation of company personnel policy. That goes through the grievance machinery and then to the voluntary arbitrator and then to the CA and then to the SC. Remember that a voluntary arbitrator has permissive jurisdiction. And what is that? Any other dispute including ULP or legality or illegality of strikes which the parties may agree to submit to voluntary arbitration. Anything under the sun. And normally, when the parties agree, all the other compulsory arbitration fora give up jurisdiction. Why? Because the Constitution has a bias for voluntary modes of settling disputes. Alright, let us start with the first column from the right: GRIEVANCE MACHINERY (GM) ART. 260. Grievance machinery and voluntary arbitration. - The parties to a Collective Bargaining Agreement shall include therein provisions that will ensure the mutual observance of its terms and conditions. They shall establish a machinery for the adjustment and resolution of grievances arising from the interpretation or implementation of their Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies. All grievances submitted to the grievance machinery which are not settled within seven (7) calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the Collective Bargaining Agreement. For this purpose, parties to a Collective Bargaining Agreement shall name and designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators, or include in the agreement a procedure for the selection of such Voluntary Arbitrator or panel of Voluntary Arbitrators, preferably from the listing of qualified Voluntary Arbitrators duly accredited by the Board. In case the parties fail to select a Voluntary Arbitrator or panel of Voluntary Arbitrators, the Board shall designate the Voluntary Arbitrator or panel of Voluntary Arbitrators, as may be necessary, pursuant to the selection procedure agreed upon in the Collective Bargaining Agreement, which shall act with the same force and effect as if the Arbitrator or panel of Arbitrators has been selected by the parties as described above. The operative article is 260. In the US, this is covered by the general term rent-a-judge because the GM, the voluntary arbitrator does not work for the Gov't. Nor does he get his salary from the gov't. But he must be paid. And normally, it is the union and the mgt. that has a dispute. Now, for the mgt. we can assume that it has money. But for the union, can we assume that the union has money to pay for the voluntary arbitrator? That cannot be assumed. So if the union does not have the money -- and normally the procedure is the same -- once the voluntary arbitrator receives the joint submission to arbitrate, the voluntary arbitrator will right away say that this is his fee. 50% down, 50% as soon as the decision comes out. So I assume that this is split down the line. So 50% to be paid by mgt and 50% by the union.
105
Dali ra kaayo for mgt. Hulbot dayon ug cheke, sign and human na. Now what about the union? What happens if the union cannot pay? So I would like to invite your attention to Art. 262(B) ART. 262-B. Cost of voluntary arbitration and Voluntary Arbitrators fee. - The parties to a Collective Bargaining Agreement shall provide therein a proportionate sharing scheme on the cost of voluntary arbitration including the Voluntary Arbitrators fee. The fixing of fee of Voluntary Arbitrators, whether shouldered wholly by the parties or subsidized by the Special Voluntary Arbitration Fund, shall take into account the following factors: (a) Nature of the case; (b) Time consumed in hearing the case; (c) Professional standing of the Voluntary Arbitrator; (d) Capacity to pay of the parties; and (e) Fees provided for in the Revised Rules of Court. So if the union does not have money, the union will apply for subsidy. Where will it apply? Special Voluntary Arbitration Fund (SVAF). Asa man na mugikan ang fund? Where does it come from? It is found in Art. 231 -- The Bureau or Regional Office shall assess the employer for every Collective Bargaining Agreement a registration fee of not less than one thousand pesos (P1,000.00) or in any other amount as may be deemed appropriate and necessary by the Secretary of Labor and Employment for the effective and efficient administration of the Voluntary Arbitration Program. Any amount collected under this provision shall accrue to the Special Voluntary Arbitration Fund. So kanang mga registration from unions, that is the fund by which unions may apply for subsidy to pay their voluntary arbitrator's fee. Now, please take note that there is a rule in voluntary arbitration which is disregarded completely but it is followed through the letter implements [?]. As much as possible, if there is an issue of termination, of money claims and of discrimination, then you all lump them together and just give them to the voluntary arbitrator to decide. Why? Kay usa ta mubayad, ato na nang ihatag sa iya tanan to decide. (Pinoy jud!) In the US, you cannot do that. For every distinguishable issue, there must be a separate voluntary arbitrator. Why is that? To avoid balancing out. Padawgon nako dire nga issue ang mgt, sa pikas ang labor na sad, etc. It is no longer on the merits. It will be to have a peaceful resolution as far as the voluntary arbitrator is concerned. So that nobody will be turned off by him completely. Watch out because that will happen once you consolidate cases with the voluntary arbitrator. Now, when you do that, samot kadaghan imong bayran. So, keep that in mind. Hmmm? When the union does not have money, it will make a formal application to the voluntary arbitration fund for a subsidy. And almost always the subsidy is granted because the gov't wants to encourage voluntary arbitration. Now, take a look at [the column -- rightmost] 1. Disputes concerning the implementation and interpretation of CBA 2. Disputes concerning the interpretation or implementation of company personnel policies 3. All other defined as grievance by the CBA 4. Wage distortion cases when there is a CBA (Art. 124) Of these 4 listed, numbers 1, 2,4 are belonging to the mandatory jurisdiction of the voluntary arbitration. The third does not belong to the voluntary arbitrator. Suppose you belong to 1, 2, or 4 and it finds itself to the Labor Arbiter, what will happen? Take a look at Art. 217(C) (c) Cases arising from the interpretation or implementation of collective bargaining agreements and those arising from the interpretation or enforcement of company personnel policies shall be disposed of by the Labor Arbiter by referring the same to the grievance machinery and voluntary arbitration as may be provided in said agreements.
106
So it follows what the SC has said. If a tribunal has no jurisdiction over the complaint or case, the only jurisdiction it has is to dismiss the case. But here, he does not dismiss it.. he is directed by law to refer it to the proper forum. He must not just dismiss it, but he must order the parties to go through voluntary arbitration. Or if they have gone through with grievance machinery, they must proceed with voluntary arbitration. Let us say that there is one of the jurisdictions here in Art. 217 na masaag didto sa voluntary arbitrator. What will the voluntary arbitrator do? Does he have a similar order as this in (C)? Unsa man, iya i-dismiss? Go back to the labor arbiter! Must he also do that? Is there a similar provision applicable for volunary arbitrators? There is NONE. Because the moment that there is a complaint that does not belong to the voluntary arbitrator and it is submitted by the joint submission to arbitration, that means that what is invoked is not the mandatory jurisdiction of the voluntary arbitrator, but the optional/permissive jurisdiction of the voluntary arbitrator. Because remember, anything can be submitted to voluntary arbitration. So the assumption is that the parties have elected voluntary arbitration. So the voluntary arbitrator DOES NOT dismiss anything. The labor arbiter is ordered to dismiss [the case] and refer to the proper forum. But the voluntary arbitrator does not dismiss anything. Pagbantay mo ana kay tagaan mo anag problem.. you are examined if you really know the law. Labrel 09.26.07 Make sure that you have the 2005 Rules of Procedure of the NLRC I would like to point out to you Rule 3, Sec. 4, the list of prohibited pleadings and motions. What are these motions? 1. Motion to Dismiss the Complaint except on the ground of lack of jurisdiction over the subject matter, improper venue, res judicata, forum shopping, prescription; All other motions to dismiss are not allowed. What are the other motions to dismiss that are not here? Motion to Dismiss for lack of cause of action. Give an example: File sya ug illegal dismissal pero sige gihapon sya ug report sa trabaho. The day before the hearing, tua gihapon sya nagsigeg dawat ug sweldo. Mureklamo ko nga gipapahawa ko pero naa lang gihapon ko. You cannot file a motion to dismiss on the basis for lack of cause of action. Where will you bring that out? Only in your answer. Wala pa man na nako papahawa-a. Naa pa sya o! Another, motion to dismiss the complaint for lack of personality to sue. File ang ER MTD for lack of personality to sue, you cannot. Kinsa man nagfile sa complaint? Iyang ugangan ang nagpirma. Hain man sya (ee), wala ko kabalo kung hain sya (ee), seaman man to sya. Ang mother-in-law ang nagfile sa complaint. Who should bring the action? The EE and not the mother-in-law (kay patay na iyang mother) and illiterate ang wife. You cannot file a motion to dismiss, you bring it out in the answer. 2. Motion for bill of particulars 3. Motion for new trial -- that will be considered as an appeal 4. Petition for relief from judgment to be filed with the Labor Arbiter 5. Petition for certiorari, mandamus, or prohibition -- the rules of court where you can file it. 6. Motion to declare respondent in default. That means that the LA, even if the time for the filing for the position papers has lapsed for as long as no judgment has yet been made, it is within the discretion of the LA to still accept position papers in the interest of social justice.
107
You cannot hold the er in default. 7. MFR of appeal from any interlocutory order of the Labor Arbiter . The LA issues an order.. All parties having submitted their position papers, this case is now considered as submitted for decision. Appeal ka ana because you have one more witness who cannot testify and his testimony is material to the issue.. too bad you cannot appeal that. That is a prohibited pleading. Allright, remember those pleadings because they are prohibited. Rule 3, Sec. 8 -- Appearances A) A lawyer appearing for the parties is presumed to have been authorized for that purpose. In every case, he shall indicate in his pleadings and motions his attorney's roll number as well as his PTR, IBP Numbers for the current years. B) A non lawyer may appear as (or sans?) counsel in any of the proceedings before the Labor Arbiter or Commission only under the following conditions: 1. He represents himself as party to the case; So whether you are respondent or complainant, you can appear without counsel if you represent yourself. 2. He represents a legitimate labor organization as defined under Art. 212 and 242 of the Labor Code as amended, which is a party to the case, provided that he presents: a. Certification from the Bureau of Labor Relations or the Regional Office of the DOLE attesting that the organization he represents is duly registered and listed in the roster of LLO . >> Now, this is one of the privileges of a legitimate labor organization (LLO) that is not yet that of a local who has just been handed a charter certificate of creation. You are handed a charter certificate.. you can file a petition for certification election but you cannot appear for a member because you cannot present this certification that you are already there in the list. b. You must present a verified certification issued by the Secretary and attested to by the President of the said organization stating that he is authorized to present the organization in the said case ; >> If you are the president, you yourself will attest. If the Sec. appears, he certifies himself. c. A copy of the resolution of the Board of Directors of the said organization granting him such authority . 3. He represents a member or members of a legitimate labor organization that is existing within the employer's establishment, who are parties to the case: Provided, that he presents: (i) a verified certification attesting that he is authorized by such member or members to represent them in the case; and (ii) a verified certification issued by the secretary and attested to by the president of the said organization stating that the person or persons he is representing are members of their organization which is existing in the employer's establishment; Take note there is no need for a board resolution basta labor union. Why is that? Because the very nature itself of a labor organization is to represent. 4. He is a duly-accredited member of any legal aid office recognized by the Department of Justice or Integrated Bar of the Philippines: Provided, that he (i) presents proof of his accreditation; and (ii) represents a party to the case; 5. He is the owner or president of a corporation or establishment which is a party to the case: Provided, that he presents: (i) a verified certification attesting that he is authorized to represent said corporation or establishment; and (ii) a copy of the resolution of the board of directors of said corporation, or other similar resolution or instrument issued by said establishment, granting him such authority.
108
Now, the rule further says: c) A non-lawyer who appears in contravention of this Section shall not be recognized in any proceedings before the Labor Arbiter or the Commission d) Appearances may be made orally or in writing.In both cases, the complete name and office address of both parties shall be made on record and the adverse party or his counsel or representative properly notified. e) Any change in the address of counsel or representative should be filed with the records of the case and furnished the adverse party or counsel. >> This is a manifestation ha? This is the difference between a motion and a manifestation because in the Rules of Court, wala ma'y manifestation. Why is an order not necessary? Because you serve a copy of the manifestation to the other party about the change in address. f) Any change or withdrawal of counsel or representative shall be made in accordance with the Rules of Court. Alright, you know that just like in the regular courts there is raffling of cases in the LA. Normally you are not there when the case is raffled. And then if there is an action or case between the parties, normally the cases will be consolidated for the speedy disposition of cases. If there is already a preceding case assigned to the LA, then there is a new case, they will dispense with the raffling and consolidate the case(s). Now, the first proceeding before the LA is conciliation and mediation. The first meeting with the LA, whether it be illegal termination case, or money claims, it is always conciliation and mediation. That is the whole point. Only when the LA is satisfied that no amicable settlement can be reached, then normally what he will do is order the filing of the position paper. Pagfile sa position paper ana, he will look.. is there a need to conduct a hearing? If there is no need anymore, and he has given the parties time to reply to the position papers, then he will issue an order informing the parties that the case is now submitted for a decision because this is supposed to be summary-- expeditious. So this conciliation and mediation conference are mandatory. Now, suppose one of the parties does not appear? What are the rules? That is Sec. 5, Rule 5. Section 5. Non-Appearance of Parties. - The non-appearance of the complainant or petitioner during the two (2) settings for mandatory conciliation and mediation conference scheduled in the summons, despite due notice thereof, shall be a ground for the dismissal of the case without prejudice. In case of non-appearance by the respondent during the first scheduled conference, the second conference shall proceed as scheduled in the summons.If the respondent still fails to appear at the second conference despite being duly served with summons, the Labor Arbiter shall immediately terminate the mandatory conciliation and mediation conference.The Labor Arbiter shall thereafter allow the complainant or petitioner to file his verified position paper and submit evidence in support of his causes of action, and thereupon render his decision on the basis of the evidence on record. What does that mean? Two non-appearance of the respondent, the case will proceed ex-parte. And even more abbreviated! File your position paper right away, I will no longer order the respondent to file the position paper, you just serve him a copy and then I will decide the case. Now, what is this TWO DISMISSAL RULE? It is no longer here [in the 2005 rules]. You know the complainant, in the 2002 rules, does not appear during the conciliation and mediation proceedings, the LA will dismiss the complaint without prejudice. Unya ifile na sad usab, pero dili gihapon sya mutunga kaduha, this time the LA can dismiss the complaint with prejudice. Because if there is no limit, and mahasol ang gobyerno na! It is Atty. Sagmit that you are harrassing already.
109
That is no longer here but the LA still apply that. Now, take note that the labor arbiter has discretion whether or not a hearing will be called. Submission of position papers --> LA goes over them: If he believes that a hearing is still necessary, he will schedule the hearing. But if he believes that the case can be resolved on the basis of the position papers because the evidence is already attached to the position papers, then he will issue an order informing the parties that the case is considered submitted for decision. Section 11. Submission of the Case for Decision. - Upon the submission by the parties of their position papers or replies, or the lapse of the period to submit the same, the case shall be deemed submitted for decision unless the Labor Arbiter calls for a hearing or clarificatory conference in accordance with Section 8 of this Rule, in which case, notice of hearing or clarificatory conference shall be immediately sent to the parties.Upon termination of the said hearing or conference, the case shall be deemed submitted for decision . Section 12. Inhibition. - A Labor Arbiter may voluntarily inhibit himself from the resolution of a case and shall so state in writing the legal justifications therefor.Upon motion of a party, either on the ground of relationship within the fourth civil degree of consanguinity or affinity with the adverse party or counsel, or on question of impartiality, the Labor Arbiter may inhibit himself from further hearing and deciding the case.Such motion shall be resolved within five (5) days from the filing thereof.An order denying or granting a motion for inhibition is inappealable. Okay, those are the crucial parts. Let us go to decided cases on the jurisdiction of the LA: Q: MAY THE LABOR ARBITER RULE UPON THE FF: 1. CLAIMS FOR OVERTIME PAY, HOLIDAY PAY, 13TH MONTH PAY, SICK LEAVE PAY, WHICH ARE ALL INCLUDED IN THE COMPLAINT FOR ILLEGAL DISMISSAL BUT NOT PROVEN ? So naa sa iyahang complaint sa LA. Have you seen a complaint with the LA? Its very easy, you just mark the box and then sign it and verify it with the LA himself. Now, all these money claims are in the complaint but they are not covered by the position paper. Can the LA award all these money claims? A: YES. SEABORN VS. NLRC 237 S 343 (1994) -- The SC said yes, the LA can award those claims because the burden of proving that payment of said benefits has been made rests on the party who suffers if no evidence is presented by either party. That is the ER. Remember in LABSTAN the ER is required to maintain payroll records containing periods covered, straight time pay, additional pay, etc. So it is the employer who possesses the records. He reads the complaint, he should present evidence to negate those complaint. If he does not, he stands to suffer if no additional evidence is given. You can see how the law protects labor. All the worker has to do is to allege. What does the EE have to do? He just has to prove that he is employed. How does he do that? By his testimonial evidence. Issue an affidavit, attach to the complaint.. mao na iyang evidence. Ikaw and ER, you must prove.. dara iyang mga payroll o nga gidawat nya sukad sa pagsulod niya. Now, of course he cannot claim all these OT pay, sick leave pay, etc, more than 3 years. Because money claims prescribe in 3 years. So the records that the ER must keep is only for 3 years.. although for the purposes of the BIR, he must keep it for 5 years. Very easy, you can file a motion to dismiss on the ground of prescription if what he is claiming is more than 3 years. 2. CLAIMS NOT ALLEGED IN THE COMPLAINT BUT MADE IN THE COMPLAINANT'S POSITION PAPER? Walay niya ma-X sa complaint pero pag-abot sa position paper naa'y issues diha. Can the LA award such money claims? A: YES. DBP VS. NLRC 233 S 250 (1994) -- Yes, provided that the claims are made in the complainant's position paper. But claims for wage differentials, not made either in the complaint or in the position paper, cannot be passed upon.
110
Asa man diay na mutunga nga wa man diay sa position paper or sa complaint? Let us say in one of the Annexes of a motion its there. The LA cannot rule on that. 3. MERITS ON THE CASE SIMPLY ON THE BASIS OF POSITIONS PAPERS OF THE PARTIES? A: YES. I told you already that the LA can totally dispense of all and any hearing. CONSOLIDATED RURAL BANK VS. NLRC 301 SCRA 223 (1999) 4. MERITS OF THE CASE ON THE BASIS OF THE SUPPLEMENTAL MEMORANDUM SUBMITTED BY ONE OF THE PARTIES AFTER THE PARTIES HAVE SUBMITTED THEIR POSITIONS PAPERS AND AFTER THEY HAVE AGREED TO SUBMIT THE CASE FOR DECISION? LA ordered the parties to submit their position papers and he waits for awhile and no party makes a reply to the position papers. So the LA issues an order that the case is already considered submitted for decision. And then after awhile, one of the parties goes to the LA and says naa mi nadiskubre nga bag-ong ebidensya blah blah blah. So the LA says, isubmit lang na position paper tutal wala pa man nako madesisyuni. Submit a supplemental decision paper.. so pagsubmit atong supplemental position paper, wala man taga-i tong isa. And the LA in making his decision rules on the basis of the supplemental position paper. A: MANEJO VS. NLRC 229 SCRA 240. MALI, accdg. to the SC. What the LA should have done is to countermand the order considering the case submitted for decision. Opening the case on the basis of the supplemental position paper and then giving the parties a chance to reply to the supplemental position paper by filing his own supplemental position paper, otherwise substantial justice is transgressed. This is a very rare case: AUSTRIA VS. NLRC 310 SCRA 410 (1999) Fx: An illegal dismissal complaint was filed by the Pastor against the 7th Day Adventist Baptist Corp in view of the separation of the church and state. Can the LA decide the merits of the case? Held: Yes, because this is not like the priest in Iloilo who was married officiated by his classmate priest. And so the bishop excommunicated the two.. the one who got married and the one who officiated. They filed an illegal dismissal complaint. The LA dismissed the complaint for lack of jurisdiction on the ground of separation of church and state. The NLRC affirmed the LA's decision. Why? Because they were dismissed from the church on the basis of church tenets -- that a priest cannot get married. This one here, Austria was not dismissed by the Church. He was not excommunicated. He was still a pastor, but he was just taken from his parish and another one placed there without any investigation or order. That's why he filed an illegal dismissal. BEcause he has a contract that he was supposed to stay in that parish for 3 years. So that is the difference between the two ha. So watch out ha! Okay, last question: A COMPLAINT FILED BY 2 UNION MEMBERS FOR EXORBITANT DEDUCTIONS AND ILLEGAL EXPULSION AGAINST THEIR UNION? A: No, ILAW AT BUKLOD NG MANGGAGAWA VS. NLRC 219 SCRA 536 (1993) -- because this is an intra-union dispute -- a dispute between members and their union and under ARt. 226 it falls under the original and exclusive jurisdiction of BLR and/or the labor relations division of the regional office (med-arbiter). So that is not within the jurisdiction of the LA. Now, we will go to some more cases (aaaaah!) because when we take a look at Art. 217(a), ART. 217. Jurisdiction of the Labor Arbiters and the Commission. - (a) Except as otherwise provided under this Code, the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the following cases involving all workers, whether agricultural or nonagricultural: 1. Unfair labor practice cases; 2. Termination disputes; 3. If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment; 4. Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations;
111
Before, damages arising from the manner of dismissal is tried by the regular courts. The illegal dismissal issue is for the LA to resolve.. now they combined it with claims arising (number 4).. 5. Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts; and 6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding five thousand pesos (P5,000.00) regardless of whether accompanied with a claim for reinstatement. Exception to the exception to this rule is cases of OCWs because claims of OCWs of their social security benefits, ees compensation they can be claimed through the LA. Remember, Art. 8042 has transferred jurisdiction of violations of OCWs contracts to the LA, they are no longer with the POEA. Now, let us go through money claims: PEPSI COLA CO. VS. MARTINEZ 112 SCRA 578 (1982) Fx: Salesman of Pepsi Cola claimed that he was not awarded a prize that he has won -- a house and lot. Because Pepsi undertook a contest among salesmen as to who had the highest sale and the prize was a house and lot to the top salesman. So he filed a claim of unpaid salaries and this prize of a house and lot. I have jurisdiction over this case, accdg. to Martinez. SC overturned him. SC said that this is a money claim arising out of er-ee relationship. The house and lot prize is arising out of er-ee relationship. Now, here comes this EE of San Miguel. Now, SMC Beer Division offered an incentive program. If you can suggest any procedure, or shortcut or change in our standard processes and the company will realize savings and you will be given a reward which is 10% of the annual savings. Now, this EE gave suggestions. But then the SMC rejected the suggestion saying that there is nothing new with your suggestion, this is already being implemented. So he was not given any reward. He filed a money claims complaint with the LA based on the decision of Pepsi Cola. The issue is: Whether or not this claim for reward is arising from er-ee relationship. SC: No, this case belongs to the regular courts. This is not a money claims arising out of er-ee relationship. It is a case based on an innominate contract in the Civil Code --I do so that you may give. So, take note ha? What is the difference between this two? In Pepsi Cola, the salesman also claimed illegal dismissal. Between illegal dismissal and money claims, the former is the main cause of action, and the money claims is an ancillary cause of action. That is why. Alright, you know the case of MOLAVE MOTORSALES INC. VS. LARON -- this is another example of money claims not arising out of eree relations. The president/manager of this motor repair shop --one of the privileges granted was that he can have his own car repaired in the talier and the expenses will be advanced by the company and he will just pay out of payroll deduction. So what happened? He left the company without first paying the money that were advanced for the repair of his car. Molave Motors filed money claims complaint against the manager.. so the er sued the ee -- nabali! Why? Accdg. to the er, this is money claims arising out of er-ee relations.
112
SC says, NO! The LA has no jurisdiction.. this is not arising out of er-ee relationship.. this is MUTUUM. It is a loan. Therefore, the provisions of the labor code do not apply to resolve the dispute. So what does "ARISING OUT OF ER-EE RELATIONSHIP" mean? It is not temporal in nature. Just because you incurred this monetary privilege during er-ee relations does not make it arising out of... Arising out of means what is the law that will be used to resolve the monetary dispute. If it is the civil code, then that is not arising. You have to go to the regular courts. If it is the labor code, then it is arising, and therefore you must go to the LA. Alright, now, ILLEGAL TERMINATION/DISMISSAL There is a long line of decided cases, if the officer of the corporation is appointed or voted by the Board of Directors of the Corporation-ER, if he is no longer voted and he files an illegal dismissal complaint, the LA has no jurisdiction over the dispute. It becomes an intra-corporate dispute -- a dispute between the constituents of the corporation because it will involve looking into the validity of the meetings, the majority of the votes. And the LA has no jurisdiction to do that. This termination, discontinuance of officers of this duty because of the voting of the Board of Trustees are now under the purview of the jurisdiction of the regular courts. HOWEVER, let me point out to you one case that is the exception to that general rule: GREGORIO ARANETA UNIV. FOUNDATION VS. TEODORO 167 SCRA 79 (1988) Fx: Teodoro here was an ordinary faculty member and was subsequently promoted to chairperson to dean and finally to the VP position. As VP, his position was now an appointment of the Board. When the Board no longer appointed him, he was dismissed from the univ. He filed an illegal dismissal case with the LA, and he claimed that he still has tenure with the university as a regular faculty member because he was regular as to his status.. I can be removed as VP, but I should be able to go back to my faculty status. Is that correct? SC: YES, therefore the LA has jurisdiction over his dismissal from the university. But not as to his removal as VP because that is an intercorporate dispute. This was asked 3 years ago in the bar exams. MORAL DAMAGES -Of course you know that the old ruling that it is the regular courts that have jurisdiction over damages arising out of the manner of dismissal, that is no longer the case. It is now under the jurisdiction of the LA. But then again, there is an exception to the rule. PEPSI Cola vs. GAL-Ang 201 S 695 (1999) -- This is a case of the gen. manager of Pepsi Cola plant in Muntinlupa. The head of Pepsi Cola at that time was a man by the name of Aboitiz.. during the Christmas party of the plant he suddenly disappeared. And during the middle of the party he came infront of the gen. manager and his family and he berated Gal-ang. Why? Because he did not launch the Pepsi promo on time. And then he says, "You're Fired!". The manner of dismissal was that way. What happened was that after awhile, Gal-ang was removed and he received his retirement benefits, etc. But after he signed, he still filed moral damages for the manner that he was removed. He filed it with the regular courts. So Pepsi Cola filed a move to dismiss because there is now a new ruling that it is subsumed in the illegal dismissal case. The SC says that there is no labor legislation involved here. We do not use the labor code to resolve the case of Gal-ang. What we take into consideration here are the human relations provisions of the Civil code. When you have injured another by your whimsical malicious acts, which is to berate and humiliate a person infront of their family, subordinates, children. This could have been prevented by Pepsi cola if it also granted a benefit for the humiliation Gal-ang suffered along with his separation benefits, etc. So remember that this can happen even if there is a valid cause of dismissal. Even if there is a valid cause for dismissal but the way you dismissed the ee is whimsical -- ilabog nimo tanan iyang libro sa bintana, hala punita na didto sa ubos! -- pakaulawan ba, then that can be
113
a valid cause of action under the human relations provisions of the Civil Code. Because even if you have the right to do it, the manner of doing it is oppressive, that is a valid cause of action. Labrel 10.04.07 Transcribed by: Rey Mar Ondi Let us take certain powers that you think the forum has, but actually it does not have it. For instance, I told you that the NLRC under 218 has the power to issue an injunction, and one of its powers is letter (e) (e) To enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts or to require the performance of a particular act x xx This particular ruling of the Supreme Court here, which is in NESTLE V. NLRC (195 S 340)(1991), the ruling is to the effect that you cannot issue an injunction if you are in the Commission unless there is labor dispute. If there is no labor dispute you cannot issue. It is an ancillary power, in other words, a power that is supposed to enhance you main jurisdiction. Now, how is this shown in the case of NESTLE? We are talking about a group of salesmen, members of the salesmen union of Nestle. Now, they were retrenched by the company. They question their retrenchment. So, they filed an illegal dismissal suit. The illegal dismissal suit, it was termination, 217, exclusive jurisdiction of a Labor Arbiter, they went to the Labor Arbiter even if they were unionized. Normally, that becomes a matter for grievance, is it not? goes to the grievance machinery, but when the dismissal order finally came, they did not go to voluntary arbitration. They went to Labor Arbiter for illegal dismissal. So, the case is pending there, illegal dismissal. Now, in the meantime, Nestle sends a letter to these salesmen. Now, "here is your account with respect to the cars that you have under the company car program". You know, a normal way in car plan, the company pays the lion share of the car and then the employee pays a monthly sum to the company. But the monthly sum is also their car allowance. So, actually, your basic pay is not touched. That is why, that is called a car plan. But the legal vehicle there is this, the company pays for the car from the dealer, the car is transferred to the name of the salesman. The salesman executes a chattel mortgage over the car. So, the papers of the car are annotated as mortgage to the company and the chattel mortgage is also registered in the motor vehicle's office and also in the chattel mortgage registry. Now, the company said, you are retrenched, here is your choice, pay the balance or return the car. Now, the salesmen said, we are not going to do either. Why? Because we questioning the legality of our retrenchment and for all things you know, we will win, we will be back in the company and still use the car. The company said, no, you have not been paying, for 2 months now your amortization with the company. It is in the chattel mortgage, you have not been paying. So, therefore, under the chattel mortgage agreement that we have, the entire obligation is entirely due and demandable and we can choose to ask for the balance or the car itself. But upon the advice of the union and their lawyer, they still refused. So what did the company do? The company filed recovery of personal property in the regular courts. That is replevin. Now, after the filing replevin, it was ordered by the court to repossess. So, Nestle hired people to recover the car. Now, what did the union of these salesmen do? That is when they went to NLRC, asking, to exercise of its powers under 218(e), to issue a restraining order against Nestle to prevent them from taking possession of the car because according to them there is still an illegal dismissal suit pending in the Labor Arbiter. Now, the Commission issued a restraining order. That is why, Nestle went to the Court of Appeals. At then went to the Supreme Court. What did the Supreme Court say? ULTRA VIRES exercise of its powers. NLRC have no power to enjoin Nestle because as far as this controversy is concerned, it is not a labor dispute, there is a nominate contract signed and that is the Chattel Mortgage Contract. That is outside the jurisdiction of the Commission. It has nothing to do with the illegal dismissal because there is a nominate contract of mutuum and chattel mortgage. That is when the Supreme Court Says: this 218 (e) is a power ancillary to a labor dispute. There must first exist a labor dispute before you can invoke the power to restrain. For example, there is a strike. You are questioning the legality of a strike. Where will you file? in the labor arbiter, you will go to the labor arbiter under 217(a), has as one of its exclusive and original jurisdiction is the legality of a strike and then when the strike is in progress, the strikers barricade the entrance. So, the employer ask for an order under 218(e), to restrain the striking employee from barricading because that is prohibited. Therefore, it is an original action, w/c is the legality or illegality of the strike, you issue a restraining order to restrain the prohibited act being committed by the employees. That is an example of correct use of 218(e). The example of wrong use is in the case of Nestle. Now, there is another new case of Nestle 2002 case, Nestle Union vs. Nestle (October 2002 case) . And you know very well a Nestle Union is BAYAN oriented, very activist. You Nestle alone has 21 factories all over the Phils and one of its factories is in Cagayan de Oro makers of oatmeal. The management issued an order, every 6 months there will be a drug test for the employees. The union opposed it, it is an insult to our integrity. The company said, if you are not into drugs, then you have nothing to fear. If you are found to be in drugs , the
114
first thing that we will do is, we will treat it as an ailment. So, they will be given a chance for rehabilitation, with the help of the company. We will keep it confidential, it is only when you persist, then we will take action. And still, they did not want. They went to the regular courts for an injunction to stop the company from testing because it is an assault in their human dignity. Now, the issue is, Nestle moved to dismiss, there is no jurisdiction by the regular courts because these are terms and conditions of work and it is therefore the Labor Arbiter which has the jurisdiction if there is conflict as to terms and conditions of work. Now, who is correct? They can issue an injunction. ...All this appended to or related to a labor dispute. Externally, it might be, as in Nestle, but is not, because legally, it is based on a contract distinct and separate from employer-employee relationship. But here, in the second Nestle case, there is no other intervening contract. There is only an employer-employee contract. So therefore, if it were another forum that issues an injunction or a restraining order, it is outside of its jurisdiction because it is still the labor arbiter that has the primary exclusive original jurisdiction because it is with respect to the terms and conditions of work. Let me just point out to you another issue, the issue of Mario Jr. et al and UST Faculty Union V. Gamilla (G.R. No. 132400, Jan 31, 2005), 2nd division by Justice Tinga. Now, we know very well that under 217 the Labor Arbiter has the jurisdiction to rule upon all awards of damages arising from employer-employee relationship even if damages that are prayed for on account of the manner of dismissal, it is still the Labor Arbiter that can award that. Let us go the forum of the Med-Arbiter, the Med-Arbiter has the original and exclusive jurisdiction over intra-union dispute, within the union, member vs member, that is an intra-union dispute, director vs director in the union, that is intra-union dispute, dispute as to elections, who won the election, election contest, that is intra-union dispute. Who has the jurisdiction? Not the Labor Arbiter, not the Sec of Labor, it is the Bureau of Labor Relations (BLR), the frontline officer is the med-arbiter. Alright, the 2 factions of union of UST Faculty, they are fighting each other. Now, this faction, that is the incumbent faction lost in the election. After, they lost in the election, they padlocked the election premises which is in the offices of the UST Faculty. So, the member can no longer went in, and the records and their personal belongings that are there where destroyed. They suffered damages. For example, the incumbent challenged the result of the election. That is intra-corporate. Who has jurisdiction? Med-Arbiter, in that case the respondents brought a counterclaim for damages because I cannot withdraw because my ATM was in my bag in my locker and then they padlocked it. I could not get in, nanghulam ko ug kwarta arun makakaon akong pamilya, because they could not open because it was padlocked. So, they were asking for damages arising from the closure of the incumbent when they were already lost in the election earlier. Now, the Med-Arbiter ruled in the action in the main, who was the rightful winner in the election and they said, it is not the incumbent. The incumbent lost. And the Med-Arbiter also ruled on the damages that the incumbent set of officers are solidarily liable, jointly to pay the damages. First, the Director of Labor Relations affirmed. They go up to the Court of Appeals, affirmed. The Supreme Court, correct as to the resolution of who is the rightful set of officers. But, there is no law granting the Med-Arbiter or the Bureau of Labor Relations to award damages. Tan-awa ra. So, in effect the Supreme Court is saying that today we have to file 2 cases, if you suffered damages and your asking damages, you have to file another case with the regular courts because Art 226 does not empower the Med-Arbiter to adjudicate claims for damages . Damages resulting from intra-corporate disputes are not within the purview of the jurisdiction of the Med-Arbiter or the BLR. Take note of that ruling, that is peculiar for illegal acts. Now, I told when we took up strikes that one of the exception that you can go on strikes without going through the requisites-- notice, etc. is if you have been locked out. The lock out is the opposite of strike, in strike it is the workers who withhold work. In a lock out, it is the company who withholds the employment. The employer says, there is no work and you are locked out of your work. And that is the same requirement as strike, there must be a notice of lock out, whether there must be a lock out vote by the board of directors etc. If you are locked out, and then you declare a strike, you do not have to follow strike vote, strike notice. Why? because you already out of work. The work has already been stopped. But here the ruling of the Supreme Court that says that if it is only a department that is closed down and locked out its employees, part of the union, and the whole union goes on strike while other department that is still operating, it does not constitute as an exception from following the requisites of a valid strike . Because according to Supreme Court as to the other workers they can still work, they are not deprived of their work, only a department. That is the case of Bukluran ng Manggawa sa Clothman Knitting Corporation vs. CA (448 SCRA 642)(January 17, 2005). You have also to read this Agabon & Agabon vs. NLRC (442 SCRA 573) (November 17, 2004) en banc ruling of the SC Ynares Santiago, if there is no due process that is complied with before the dismissal was made. The SC says the dismissal is valid but you have to pay fine. Then the Supreme Court said the dismissal is entirely invalid. So, you have to reinstate.
115
Now, it has gone back to the old ruling, the defect cannot be cured because of the lack of due process but it should not invalidate the dismissal because there is just cause. However, the employer should be held liable for non-compliance of the procedural requirements of due process. How much is the fine that should be paid because of the lack of due process? In Agabon case, the fine is Php 30, 000.00 nominal damages for non-compliance of the statutory due process. This is in a case of illegal dismissal, just cause. But later on in the case of Jaka Food Processing Corp vs. Pacot (L-151378)(March 28, 2005) en banc decision penned by Justice Garcia. Jaka, that is Enrile's Corporation, Jack Enrile and Katrina. Here, it is termination, not dismissal because what is involved here is authorized cause. The Supreme Court said, that there was authorized cause for the termination. The records show that Jaca was suffering of serious business losses at the time they terminated respondent's employment. Applying the ruling of Rhea Corp vs. Eras??? A new one is now entered according to the legality of the dismissal but ordering the petitioner to pay each of the respondent the amount of Php 50,000.00 representing nominal damages for non-compliance with statutory due process. Taas na nuon. What is the logic? Kini usang dismissal, naa siya'y sala unya wala nasunod and due process Php 30,000 ang bayaran sa employer. Authorized cause. There's an authorized cause, let us say serious loss and they did not follow the process. The due process here is one month notice and then submission of the report to the Department of Labor that we are closing down. What is Php 50,000.00 here? Why it is Php 30,000.00. The SC said, here it is Php 50,000 because the employee loses more. When he is terminated, he is supposed to receive termination benefits and he is deprived of that until after the conclusion of the case all the way to the SC, therefore he is paid a higher fine. That is the reckoning in the Jaka case. At least you know that there is now this difference. Now, I will not repeat the standing rules which you took up in 2nd year with respect to termination. There are three (3) remedies, is it not? (1) reinstatement (2) full backwages, and (3) damages. Reinstatement; If the Labor Arbiter orders reinstatement that is self-executory at the end or finality of the judgment, or within the appeal period. Now, what does that mean? You must either reinstate the employee, actually or reinstate in the payroll. There is no need for the employee to file a motion for writ of execution because according to the Supreme Court, it is SELF-EXECUTORY. So, what does the employee do? He presents himself to the employer(ee) at the end of the monthly period. He just present himself there. If the employee will not admit him, they will start paying him with his wages, every 15th and 30th. Payroll reinstatement alone, if he elects to actually receive it, he may enter the company premises. So, that is the story with respect to reinstatement. Now, please, there is no such right, if the case goes from the Labor Arbiter to the NLRC and NLRC makes a finding that there is illegal dismissal. Let us say, the Labor Arbiter says the dismissal is legal, you go to the NLRC, the NLRC reverses the Labor Arbiter and says the dismissal is now illegal. Can you now ask for immediate reinstatement pending the appeal to the Court of Appeals. No more. It is only the Labor Arbiter. That right only exist if the Labor Arbiter holds that the dismissal is illegal. That is a clear message to the employer that he should not hide behind the delay of the claim. They can easily do that. The employee is, they should not be dismissed, but they fight it out, if they stretched the case for 15 years all the way to the Supreme Court. And finally, you are ordered to reinstate. Even in the case of Backwages gmay ra gihapon ilang mabayran even if it is 15 years. If Money doubles every 5 years. You cannot. You really have to set aside only a fraction of what is ordered you. Only how to set aside that at the time of the dismissal is Php 50, 000.00 50,000; At end of 10 years, 400,000. To discourage that there is this immediate execution at the time the award of dismissal. AS TO BACKWAGES. This is asked in the bar examination. In reinstatement, when review when reistatement may be excused. What are the instances where reinstatement cannot be executed. In the implementing rules if the job has been removed or the position has been abolished and there is no equivalent position that the dismissed employee may be placed and allowed to work. That is one instance. The second instance is, he holds a confidential position and there has been hostility and animosity between the employer and the illegally dismissed employee. In this case, you cannot be reinstated, you will just be paid separation benefits of one(1) month salary for every year of service. Third, if the employer has in the meantime closed-shop. Even if there is finding that he is illegally dismissed. Asa man siya kay close naman. So, in lieu of reinstatement those employer will be made to pay separation benefits; one(1) month for every year of service up to the time of closure.
116
Fourth, another instance, when the illegally dismissed employee has in the meantime reached retirement age in which case at the finality of the judgment he is already beyond the compulsory retirement age. You cannot be reinstated. He will be paid separation benefits, one(1) month for every year of service from the time he illegally dismissed up to the time when he reached retirement age. Not up to the time the decision has become final and executory. It is up to the time when he reached retirement age. So, that is with respect to reinstatement. And the rule on damages. Remember, as to damages, the award of damages with the Labor Arbiter, let us say illegally dismissed, you pay 13th month pay, holiday pay, overtime pay, plus damages. You know that in order to perfect your appeal, you must file your appeal brief within ten (10) days from receipt of the decision or award. And you must post a bond, the bond equivalent to the amount awarded by the Labor Arbiter. Now, does the amount include damages? The answer is no. Only 13th month pay, or the other monetary awards that could have been yours by way of compensation. As to damages, it is not included as to the computation of the amount bond. So, if you file an appeal and you are merely questioning the moral damages, you are not questioning the other awards, you are not questioning the reinstatement. You are just questioning the award of damages, you just file an appeal brief, you do not need a surety, if you are just questioning the damages. I'm bringing that to you because it could be a trick question in the bar examination. Remember that the award for damages is not included in the value of the bond and so if that only what you question. All you need to perfect, within the reglementary period to appeal is appeal brief and you do not have to post a bond. Alright. That is all for remedies, different provisions of the law, so that you will know the jurisdiction. You know the labor tribunals that has to be resulted to. In the BAR examination, it will be together with DAR, SSS, GSIS, Employees Compensation. Ok, when is our examination? October 29, Strikes and Lockouts, and then Remedies. -oOoOLD LABOR CODE ART. 234. Requirements of registration. - Any applicant labor organization, association or group of unions or workers shall acquire legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor organizations upon issuance of the certificate of registration based on the following requirements. (a) Fifty pesos (P50.00) registration fee; (b) The names of its officers, their addresses, the principal address of the labor organization, the minutes of the organizational meetings and the list of the workers who participated in such meetings; (c) The names of all its members comprising at least twenty percent (20%) of all the employees in the bargaining unit where it seeks to operate; (As amended by Executive Order No. 111, December 24, 1986). (d) If the applicant union has been in existence for one or more years, copies of its annual financial reports; and (e) Four (4) copies of the constitution and by-laws of the applicant union, minutes of its adoption or ratification, and the list of the members who participated in it. REPUBLIC ACT 9481 Section 1. Article 234 of Presidential Decree No. 442 as amended, otherwise known as the Labor Code of the Philippines, is hereby further amended to read as follows: ART. 234. Requirements of Registration. - A federation, national union or industry or trade union center or an independent union shall acquire legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor organizations upon issuance of the certificate of registration based on the following requirements: (a) Fifty pesos (P50.00) registration fee; (b) The names of its officers, their addresses, the principal address of the labor organization, the minutes of the organizational meetings and the list of the workers who participated in such meetings; (c) In case the applicant is an independent union, the names of all its members comprising at least twenty percent (20%) of all the employees in the bargaining unit where it seeks to operate; (d) If the applicant union has been in existence for one or more years, copies of its annual financial reports; and *note: What the law meant here is that if the applicant union has been IN OPERATION FOR ONE OR MORE YEARS (e) Four copies of the constitution and by-laws of the applicant union, minutes of its adoption or ratification, and the list of the members who participated in it.
117
This used to be found only in the implementing rules
ART. 234-A. Chartering and Creation of a Local Chapter. - A duly registered federation or national union may directly create a local chapter by issuing a charter certificate indicating the establishment of the local chapter. The chapter shall acquire legal personality only for purposes of filing a petition for certification election from the date it was issued a charter certificate. The chapter shall be entitled to all other rights and privileges of a legitimate labor organization only upon the submission of the following documents in addition to its charter certificate: (a) The names of the chapters officers, their addresses, and the principal office of the chapter; and (b) The chapters constitution and by-laws: Provided, That where the chapters constitution and by-laws are the same as that of the federation or the national union, this fact shall be indicated accordingly. The additional supporting requirements shall be certified under oath by the secretary or treasurer of the chapter and attested by its president.
[ART. 238. Conditions for registration of federations or national unions. - No federation or national union shall be registered to engage in any organization activity in more than one industry in any area or region, and no federation or national union shall be registered to engage in any organizational activity in more than one industry all over the country. The federation or national union which meets the requirements and conditions herein prescribed may organize and affiliate locals and chapters without registering such locals or chapters with the Bureau. Locals or chapters shall have the same rights and privileges as if they were registered in the Bureau, provided that such federation or national union organizes such locals or chapters within its assigned organizational field of activity as may be prescribed by the Secretary of Labor. The Bureau shall see to it that federations and national unions shall only organize locals and chapters within a specific industry or union.] (Repealed by Executive Order No. 111, December 24, 1986).
ART. 238. Cancellation of Registration. - The certificate of registration of any legitimate labor organization, whether national or local, may be cancelled by the Bureau, after due hearing, only on the grounds specified in Article 239 hereof.
Sec. 4. A new provision is hereby inserted into the Labor Code as Article 238-A t o read as follows: ART. 238-A. Effect of a Petition for Cancellation of Registration. - A petition for cancellation of union registration shall not suspend the proceedings for certification election nor shall it prevent the filing of a petition for certification election. In case of cancellation, nothing herein shall restrict the right of the union to seek just and equitable remedies in the appropriate courts. ART. 239. Grounds for cancellation of union registration. The following shall constitute grounds for cancellation of union registration: (a) Misrepresentation, false statement or fraud in connection with the adoption or ratification of the constitution and bylaws or amendments thereto, the minutes of ratification and Sec. 5. Article 239 of the Labor Code is amended to read as follows: ART. 239. Grounds for Cancellation of Union Registration. - The following may constitute grounds for cancellation of union registration: (a) Misrepresentation, false statement or fraud in connection with the adoption or ratification of the constitution and by-laws or amendments
118
the list of members who took part in the ratification; (b) Failure to submit the documents mentioned in the preceding paragraph within thirty (30) days from adoption or ratification of the constitution and by-laws or amendments thereto; (c) Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election of officers, the list of voters, or failure to submit these documents together with the list of the newly elected/appointed officers and their postal addresses within thirty (30) days from election;brary (d) Failure to submit the annual financial report to the Bureau within thirty (30) days after the closing of every fiscal year and misrepresentation, false entries or fraud in the preparation of the financial report itself; (e) Acting as a labor contractor or engaging in the "cabo" system, or otherwise engaging in any activity prohibited by law; (f) Entering into collective bargaining agreements which provide terms and conditions of employment below minimum standards established by law; (g) Asking for or accepting attorneys fees or negotiation fees from employers; (h) Other than for mandatory activities under this Code, checking off special assessments or any other fees without duly signed individual written authorizations of the members; (i) Failure to submit list of individual members to the Bureau once a year or whenever required by the Bureau; and (j) Failure to comply with requirements under Articles 237 and 238.
thereto, the minutes of ratification, and the list of members who took part in the ratification; (b) Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election of officers, and the list of voters; (c) Voluntary dissolution by the members. So here, the grounds are reduced only to Art 239.. it no longer covers Art. 241, because before it used to cover that provision. That is why there is here Sec. 6.
Sec. 6. A new provision, Article 239-A is inserted into the Labor Code to read as follows: ART. 239-A. Voluntary Cancellation of Registration. - The registration of a legitimate labor organization may be cancelled by the organization itself. Provided, That at least two-thirds of its general membership votes, in a meeting duly called for that purpose to dissolve the organization: Provided, further, That an application to cancel registration is thereafter submitted by the board of the organization, attested to by the president thereof. Now you would think that the members have the power to dissolve. The problem for me is this: the imbalance. Look at the requirements for registration. How many votes do you need to register? To be certified bargaining agent? But here, you need 2/3! While it is true that this strengthens the union, but honestly, this is very difficult!
Sec. 7. A new provision, Article 242-A is hereby inserted into the Labor Code to read as follows: ART. 242-A. Reportorial Requirements. - The following are documents required to be submitted to the Bureau by the legitimate labor organization concerned: (a) Its constitution and by-laws, or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification of the constitution and by-laws within thirty (30) days from adoption or ratification of the constitution and by-lam or amendments thereto; (b) Its list of officers, minutes of the election of officers, and list of voters
119
within thirty (30) days from election; (c) Its annual financial report within thirty (30) days after the close of every fiscal year; and (d) Its list of members at least once a year or whenever required by the Bureau. Failure to comply with the above requirements shall not be a ground for cancellation of union registration but shall subject the erring officers or members to suspension, expulsion from membership, or any appropriate penalty. Sec. 8. Article 245 of the Labor Code is hereby amended to read as follows: ART. 245. Ineligibility of managerial employees to join any labor organization; right of supervisory employees. Managerial employees are not eligible to join, assist or form any labor organization. Supervisory employees shall not be eligible for membership in a labor organization of the rankand-file employees but may join, assist or form separate labor organizations of their own. ART. 245. Ineligibility of Managerial Employees to Join any Labor Organization; Right of Supervisory Employees. - Managerial employees are not eligible to join, assist or form any labor organization. Supervisory employees shall not be eligible for membership in the collective bargaining unit of the rank-and-file employees but may join, assist or form separate collective bargaining units and/or legitimate labor organizations of their own. The rank and file union and the supervisors union operating within the same establishment may join the same federation or national union. In Art. 245, the operative amendment is the last sentence which says "The rank and file union and the supervisors union operating within the same establishment may join the same federation or national union. Latest rulings of the SC that allows a supervisor's union of the same employer as the rank and file union to join in one and the same federation, the SC said there must be 2 conditions (according to the case of De La Salle): 1. The supervisors do not supervise the rank and file. Because if there do supervise, then there can be an effect if they collude. 2. In such an instance, the federation does not play an active part in the collective bargaining. In other words, the separate locals bargain for themselves. They affiliate with the federation just to avail of the services of the federation, like legal counsel, continuing labor education. The is the sole purpose of their affiliation. So in that instance, the federation does not in effect represent the rank and file of the supervisor because that is what is demanded in the first part of Art. 245: "Supervisory employees shall not be eligible for membership in the collective bargaining unit of the rank-and-file employees but may join, assist or form separate collective bargaining units and/or legitimate labor organizations of their own. " Now this is also an amendment because the original law says may not join the union, not the bargaining unit: "Supervisory employees shall not be eligible for membership in a labor organization of the rank-and-file employees but may join, assist or form separate labor organizations of their own."
120
Now, it says : "Supervisory employees shall not be eligible for membership in the collective bargaining unit of the rank-and-file employees but may join, assist or form separate collective bargaining units and/or legitimate labor organizations of their own. " Question: Can you become a member of the bargaining unit? A: No, because the composition of the bargaining unit is determined by the management. Kinsa man muingon nga ikaw supervisor, ikaw rank and file? It is management. So the bargaining unit is not the choice of the ee. It is the precise configuration of your employment. If you are hired as a manager, clearly you are outside the BU of the supervisors and the rank and file. If you're hired or promoted as a supervisor, you are taken away from the BU of the rank and file. You do not join it because it is management that somehow puts you there. That is why you belong to a BU, you do not join a BU because a BU is not an organization. A labor union is an organization. So this (amendment) is largely defective. Now, why did they put it that way? So that this particular last sentence will make sense: The rank and file union and the supervisors union operating within the same establishment may join the same federation or national union. Sec. 9. A new provision, Article 245-A is inserted into the Labor Code to read as follows: ART. 245-A. Effect of Inclusion as Members of Employees Outside the Bargaining Unit. - The inclusion as union members of employees outside the bargaining unit shall not be a ground for the cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership of said union. Then it says, in Sec. 9 that a new provision is created 245-A. This provision is intended to qualify the Slashenger (?) ruling. The DOLE-BLR is of the opinion that for as long as there will be an inclusion/exclusion proceeding in a petition for certification election, the confusion as to other ees belonging to other BU that are members of that union, the confusion for purposes of collective bargaining there will just be solved by the med arbiter in the inclusion/exclusion proceeding. For instance, if there are certain supervisors that are included there, during the hearing, evidence may be admitted that they are actually performing supervisory functions. If they are performing supervisory functions, then they are excluded, and then the certification election can go on. Now, what happens in the Slashenger (?) case was that there were supervisory and managerial ees included in the union that petitioned for certification election. The Med-Arbiter gave due course to the petition thinking that they could solve the confusion as to membership in the inclusion/exclusion proceedings.
121
Now, what did the lawyer of mgt. do? He appealed the decision of the MA to the Dir. of Labor. The Dir of Labor dismissed the appeal. Mgt. went higher all the way to the SC with this argument: If you have a union that has managerial ees, it cannot be a union. Why? Because clearly, managerial ees cannot join a union. So the one who was applying for petition for cert. elec had no personality to do so. That is the theory of mgt. The SC said mgt. is correct. If it is just a confusion of bargaining units, you can solve it by inclusion, exclusion proceedings. But if it is confusion of managerial ees in the union, then that is no union at all. So the petition was dismissed. Now, this is the amendment: ART. 245-A. Effect of Inclusion as Members of Employees Outside the Bargaining Unit. - The inclusion as union members of employees outside the bargaining unit shall not be a ground for the cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership of said union. Now, this is the problem because there is a principle that unions are autonomous as much as possible to determine their membership. In other words, if you are not prohibited by law to exercise the right to self organization, what is the bias of the law? Exercise the right to S.O. Suppose the union is a union of regular rank and file workers of a corp, and then the union accepts probationary ees. They are destined to become regular, but they are not yet regular. And mgt. opposes that the probationary ees be members. Union says we want them to be members because we want to educate them to union rights, we want to be of help to them, represent them. But they are not included in the bargaining. They are not covered by the CBA that we have concluded which only represents the regular ees. Is that allowed? I don't see anything disallowing that there. But we need to know that probationary members are deemed automatically excluded because they do not belong in the BU. Take a look at the provision, there is no general (?) purpose in the law that will be achieved for the furtherance of the exercise of s.o. by decreeing automatic severance of membership just because you don't belong to the BU. A mgt. ee member of the union is deemed removed. Why? Because there is provision in law which says that mgt. ee cannot join a union. He cannot exercise. That is a strict provision, an absolute provision. A supervisor who is a member of the rank and file.. they are not the same BU, he is also disallowed from joining the union of the rank and file. So you can say he is automatically removed. But what about the probationary ee who is a member, the union accepts him as a member. Is he automatically removed? Another issue here.. you are a member of the rank and file regular ee, and then you are chosen to be a candidate for supervisory position. And then you are asked if you are willing to undergo probation to be a supervisor and you say yes. You are trained for one month, and then you go on a probationary period where you act as a supervisor.
122
Q: Are you already out of the union? If you are already out, what happens if you do not pass the supervisor's test? Mubalik ba ka? This is a gray area, an area of doubt. And how is doubt resolved? In favor of the exercise of the right to s.o. But that is not addressed here because it says you are automatically out. Sec. 10. Article 256 of the Labor Code is hereby amended to read as follows: ART. 256. Representation issue in organized establishments. - In organized establishments, when a verified petition questioning the majority status of the incumbent bargaining agent is filed before the Department of Labor and Employment within the sixty-day period before the expiration of the collective bargaining agreement, the MedArbiter shall automatically order an election by secret ballot when the verified petition is supported by the written consent of at least twenty-five percent (25%) of all the employees in the bargaining unit to ascertain the will of the employees in the appropriate bargaining unit. To have a valid election, at least a majority of all eligible voters in the unit must have cast their votes. The labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit. When an election which provides for three or more choices results in no choice receiving a majority of the valid votes cast, a run-off election shall be conducted between the labor unions receiving the two highest number of votes: Provided, that the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast. At the expiration of the freedom period, the employer shall continue to recognize the majority status of the incumbent bargaining agent where no petition for certification election is filed. ART. 256. Representation Issue in Organized Establishments. - In organized establishments, when a verified petition questioning the majority status of the incumbent bargaining agent is filed by any legitimate labor organization including a national union or federation which has already issued a charter certificate to its local chapter participating in the certification election or a local chapter which has been issued a charter certificate by the national union or federation before the Department of Labor and Employment within the sixty (60)-day period before the expiration of the collective bargaining agreement, the MedArbiter shall automatically order an election by secret ballot when the verified petition is supported by the written consent of at least twenty-five percent (25%) of all the employees in the bargaining unit to ascertain the will of the employees in the appropriate bargaining unit. To have a valid election, at least a majority of all eligible voters in the unit must have cast their votes. The labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit. When an election which provides for three or more choices results in no choice receiving a majority of the valid votes cast, a run-off election shall be conducted between the labor unions receiving the two highest number of votes: Provided, That the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast. In cases where the petition was filed by a national union or federation, it shall not be required to disclose the names of the local chapters officers and members. At the expiration of the freedom period, the employer shall continue to recognize the majority status of the incumbent bargaining agent where no petition for certification election is filed. Now Sec. 10. You read Sec. 10 and then you read Art. 256 (in the old law) as it is written. What is the change? This is the change: In organized establishments, when a verified petition questioning the majority status of the incumbent bargaining agent is filed by any legitimate labor organization including a national union or federation which has already issued a charter certificate to its local chapter participating in the certification election or a local chapter which has been issued a charter certificate by the national union or federation before the Department of Labor and Employment In other words, to emphasize what has been decreed in the previous amendment, Art. 234-A. That for purposes of filing a petition for certificate election, a local acquires legal personality from the date it was issued a charter certificate by the federation. Now this amendment really puts into the hands of a federation/national unions the power to create a separate legal personality sufficient for filing
123
a petition for cert. elec. Take note, it is no longer the Bureau of Labor Relations that has the power to establish legal personality. It is the federation/national union itself. The moment they issue a charter certificate to a local, the federation can immediately file a petition for cert. elec because they have legal personality for purposes of filing. How about the local, can they file it? Yes, because of 256 as amended. It sasy here filed by any legitimate labor organization including a national union or federation which has already issued a charter certificate to its local chapter participating in the certification election or a local chapter which has been issued a charter certificate by the national union or federation. So both the federation and the local can file a petition for cert. elec the moment that a charter certificate has been issued. Before, if the charter certificate has not been entered with the DOLE, and the local has no personality to file a petition. Now, the mere issuance is sufficient for a filing of petition for cert. elec. Now you will enjoy full personality if you do the other things required by law, but you can already be elected to be the bargaining agent. Sec. 11. Article 257 of the Labor Code is hereby amended to read as follows: ART. 257. Petitions in Unorganized Establishments. - In any establishment where there is no certified bargaining agent, a certification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by any legitimate labor organization, including a national union or federation which has already issued a charter certificate to its 1ocal/chapter participating in the certification election or a local/chapter which has been issued a charter certificate by the national union or federation. In cases where the petition was filed by a national union or federation, it shall not be required to disclose the names of the local chapters officers and members. The change is the same as 256. They now include the federation who has issued the charter cert. and the local who has been issued a charter cert. Not only that, . In cases where the petition was filed by a national union or federation, it shall not be required to disclose the names of the local chapters officers and members. What is the point of this? Because in a petition for cert elec, the rule in the US which was inherited by the Philippines, in order to show that you have an interest in the BU that is not just speculative, you must prove that you have some members in that BU. Now, mgt. usually files a motion for the disclosure of who are the members, the officers, otherwise, you might be a fly by night labor union just so you can file a petition for cert. elec. and if the er will come across with the right amount, you will forget about the petition. That is the reasoning of the SC when it upheld Lopez, and all other cases that has been rendered moot and academic by this amendment. Now, the complaint of the union is this: If we are asked for our members, and it is still unorganized, mgt. can use this to harass all members. They use this argument. And then mgt. argues that you can file a petition even
ART. 257. Petitions in unorganized establishments. - In any establishment where there is no certified bargaining agent, a certification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by a legitimate labor organization.
124
if you have no members at all. So if you are a fly by night union, that is possible! Because the federation/national union cannot be compelled to disclose the members of the local, and the officers. What do you have? What you really have is a charter certificate that has been issued. By whom? By the federation/national union! Wa pa gani'y members, wa pa'y officers, basta naa na (ang charter cert.), you can file for a petition. Now, is this pro-union to say that a federation can file a petition simply because it has issued a charter certificate? There is even nothing there in the charter cert. that will say who is the president, who are the officers or the members. If there is no president, no officers, who will file the petition? It is the federation and it will not be compelled who are the officers, members. Because if it is the local who will file, then you must put down there who are the officers, or the members. Because a petition for cert. elec. is a verified petition. Sec. 12. A new provision, Article 258-A is hereby inserted into the Labor Code to read as follows: ART. 258-A. Employer as Bystander. - In all cases, whether the petition for certification election is filed by an employer or a legitimate labor organization, the employer shall not be considered a party thereto with a concomitant right to oppose a petition for certification election. The employers participation in such proceedings shall be limited to: (1) being notified or informed of petitions of such nature; and (2) submitting the list of employees during the pre-election conference should the Med-Arbiter act favorably on the petition. What is the problem with this amendment? The ER has also substantial rights. Suppose there is still a CBA, and it is not yet within the 60 day freedom period, and then a petition is filed, that petition should be barred by the contract bar rule. Suppose the union does not oppose it because the union in the meantime has ran. Could not mgt. file a motion to dismiss on the ground of contract bar rule? Naa pa ma'y agreement. But not is one of the things allowed! Now if management is not considered a party, why does the same provision recognize the er can file a petition for a cert. elec? Why is it there? What is the name of somebody who files a petition? Petitioner.. that is a party! Petitioner ka, apil ka, party ka. So it is not understandable why you can, in the same provision, give a status and then at the same time, take it away. You are a petitioner, so that you are a party. And then in the next sentence, you are not a party, only a by-stander. There are many problems here. But these are only modifications of labor relations. And there are no precedents to this. How do you reconcile the other proceedings? What happens if management files a motion to
125
dismiss on the ground of the contract bar rule and then med-arbiter just quotes this provision? But there is another provision of law! What the congress is doing is clogging the courts. Because for every provision here, there are more and more issues and the SC will be at a loss. How can they reconcile this? This brings so much confusion.

Labor Relations - Hanniyah

Hochgeladen von

Dokumentinformationen

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Labor Relations - Hanniyah

Hochgeladen von

Copyright:

Verfügbare Formate

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

QUALIFIED PROHIBITION CANNOT JOIN UNION OF RANK AND FILE

MEMBERS OF AFP, PNP, FIREMEN, JAILGUARDS

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

The ABU PERFORMS the CBA

As to CHOICE As to LEGITIMACY 1)As to Role

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

LabRel Lectures: Transcribed by: Hanniyah Sevilla

Labor Relations: Fr. Nazareno (2008) Transcribed By: Hanniyah Sevilla

Labor Relations: Fr. Nazareno (2008) Transcribed By: Hanniyah Sevilla

Labor Relations: Fr. Nazareno (2008) Transcribed By: Hanniyah Sevilla

Labor Relations: Fr. Nazareno (2008) Transcribed By: Hanniyah Sevilla

Labor Relations: Fr. Nazareno (2008) Transcribed By: Hanniyah Sevilla

Labor Relations: Fr. Nazareno (2008) Transcribed By: Hanniyah Sevilla

Labor Relations: Fr. Nazareno (2008) Transcribed By: Hanniyah Sevilla

Labor Relations: Fr. Nazareno (2008) Transcribed By: Hanniyah Sevilla

Labor Relations: Fr. Nazareno (2008) Transcribed By: Hanniyah Sevilla

Labor Relations: Fr. Nazareno (2008) Transcribed By: Hanniyah Sevilla

Labor Relations: Fr. Nazareno (2008) Transcribed By: Hanniyah Sevilla

Labor Relations: Fr. Nazareno (2008) Transcribed By: Hanniyah Sevilla

Labor Relations: Fr. Nazareno (2008) Transcribed By: Hanniyah Sevilla

Labor Relations: Fr. Nazareno (2008) Transcribed By: Hanniyah Sevilla

Labor Relations: Fr. Nazareno (2008) Transcribed By: Hanniyah Sevilla

Labor Relations: Fr. Nazareno (2008) Transcribed By: Hanniyah Sevilla

Labor Relations: Fr. Nazareno (2008) Transcribed By: Hanniyah Sevilla