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Mar. 19, 2014
A. Capital and Labor || || NATIONAL LABOR RELATIONS ACT (WAGNER ACT)
« Note: »

Introduction D. 7 Cardinal rights of workers


1. Right to Self-Organization
2. Right to Collective Bargaining and Negotiations
3. Right to Peaceful and Lawful Collective Action (Right to Strike)
A. Capital and Labor 4. Right to Security of Tenure
5. Right to Humane conditions of work
6. Right to a Living Wage
B. Definition and Overview of Labor 7. Right to participate in relevant Policy & Decision Making Processes
Relations
DISTINCTION BETWEEN LABOR STANDARDS AND LABOR E. Management Prerogative
- The state recognizes the exercise of management prerogative but it
RELATIONS
is not absolute and subject to certain exceptions such as the
OVERVIEW OF LABOR RELATIONS assumption of jurisdiction of the SOLE. The rationale is to prevent
exacerbation of the labor dispute and maintain status quo while the
dispute is being adjudicated.2
C. Labor Relations and its Goal - The exercise of management prerogative is not unlimited. It is
SOCIAL JUSTICE AND POLICE POWER subject to the limitations found in law, a collective bargaining
agreement or the general principles of fair play and justice.3
Article II, Section 5 (1987 Constitution)
The maintenance of peace and order, the protection of life, liberty, and
property, and promotion of the general welfare are essential for the enjoyment
by all the people of the blessings of democracy.

Article II, Section 9 (1987 Constitution)


The State shall promote a just and dynamic social order that will ensure the
prosperity and independence of the nation and free the people from poverty
through policies that provide adequate social services, promote full
employment, a rising standard of living, and an improved quality of life for all.

Article II, Section 10 (1987 Constitution)


The State shall promote social justice in all phases of national development.

Article XIII, Section 1 (1987 Constitution)


The Congress shall give highest priority to the enactment of measures that
protect and enhance the right of all the people to human dignity, reduce social,
economic, and political inequalities, and remove cultural inequities by equitably
diffusing wealth and political power for the common good.

Article XIII, Section 2 (1987 Constitution)


The promotion of social justice shall include the commitment to create
economic opportunities based on freedom of initiative and self-reliance.

PROTECTION TO LABOR; BALANCING OF POWER


Article II, Section 18 (1987 Constitution)
The State affirms labor as a primary social economic force. It shall protect the
rights of workers and promote their welfare.

Article II, Section 20 (1987 Constitution)


The State recognizes the indispensable role of the private sector, encourages
private enterprise, and provides incentives to needed investments.

Article XIII, Section 3, par 4 (1987 Constitution)


The State shall regulate the relations between workers and employers,
recognizing the right of labor to its just share in the fruits of production and the
right of enterprises to reasonable return of investments, and to expansion and
growth.

Note:
- The CIR was given the power and jurisdiction to hear, resolve and
settle all questions, controversies, disputes between employers and
employees whether employed or separated from service. It was
created to protect the interests of labor and management and
prevent mutual aggression.1

2 UNIVERSITY OF IMMACULATE CONCEPCION V. CIR (2005)


1 ANTAMOK V CIR (1940) 3 UST V NLRC (1990) AS CITED IN DOLE V OBRERO (2003)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 1 79
A. Trade Unionism || Definition of Trade Union Activities || NATIONAL LABOR RELATIONS ACT (WAGNER ACT)
« Note: »

State Policy
the right they wished vindicated is one which the law will, by all
means, protect and enforce.4

A. Trade Unionism C. Methods of Dispute Settlement


Article XIII, Section 3, 3rd par. (1987 Constitution)
DEFINITION OF TRADE UNION ACTIVITIES The State shall promote the principle of shared responsibility between workers
Article 218 A (b) and employers and the preferential use of voluntary modes in settling disputes,
Policy. To promote free trade unionism as an instrument for the enhancement including conciliation, and shall enforce their mutual compliance therewith to
of democracy and the promotion of social justice and development. foster industrial peace.

Article 218 A (c) Article 218 A (a)


Policy. To foster the free and voluntary organization of a strong and united Policy. To promote and emphasize the primacy of free collective bargaining and
labor movement. negotiations, including voluntary arbitration, mediation and conciliation, as
modes of settling labor or industrial disputes
Article 219 (g)
"Labor organization" means any union or association of employees which exists Article 3
in whole or in part for the purpose of collective bargaining or of dealing with The State shall afford protection to labor, promote full employment, ensure
employers concerning terms and conditions of employment. equal work opportunities regardless of sex, race or creed and regulate the
relations between workers and employers. The State shall assure the rights of
Article 284 (a), 2nd par. workers to self-organization, collective bargaining, security of tenure, and just
“Trade Union Activities” shall mean: and humane conditions of work.
1. Organization, formation and administration of the labor organization
Note:
2. Negotiation and administration of collective bargaining agreements
- It is settled that when the parties have validly agreed on a procedure
3. All forms of concerted action
for resolving grievances and to submit a dispute to voluntary
4. Organizing, managing, or assisting union conventions, meetings, rallies,
arbitration then that procedure should be strictly observed.5
referenda, teach-ins, seminars, conferences and institutes
5. Any form of participation or involvement in representation proceedings,
representation elections, consent elections, union elections D. Machinery of Dispute Settlement
Other activities or actions analogous to the foregoing Article 218 A (e)
Policy. To provide an adequate administrative machinery for the expeditious
Article 284 (b)
settlement of labor or industrial disputes.
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
employer’s organization to support any activity or activities affecting trade
unions. NATIONAL LABOR RELATIONS COMMISSION (NLRC)
Article 219 (a)
Book V, Rule VI, Section 1 "Commission" means the National Labor Relations Commission or any of its
Policy. – It is the policy of the State to promote free trade unionism through divisions, as the case may be, as provided under this Code.
expeditious procedures governing the choice of an exclusive bargaining agent.
The determination of such exclusive bargaining agent is a non-litigious Article 220
proceeding and, as far as practicable, shall be free from technicalities of law and National Labor Relations Commission. There shall be a National Labor
procedure, provided only that in every case, the exclusive bargaining agent Relations Commission which shall be attached to the Department of Labor and
enjoys the majority support of all the employees in the bargaining unit. Employment solely for program and policy coordination only, composed of a
Chairman and twenty-three (23) Members.
Eight (8) members each shall be chosen from among the nominees of the
B. Work Enlightenment workers and employers organizations, respectively. The Chairman and the
seven (7) remaining members shall come from the public sector, with the latter
Article 218 A (d)
to be chosen preferably from among the incumbent Labor Arbiters.
Policy. To promote the enlightenment of workers concerning their rights and
Upon assumption into office, the members nominated by the workers and
obligations as union members and as employees.
employers organizations shall divest themselves of any affiliation with or
Article 249 (p) interest in the federation or association to which they belong.
It shall be the duty of any labor organization and its officers to inform its The Commission may sit en banc or in eight (8) divisions, each composed of
members on the provisions of its constitution and by-laws, collective three (3) members. Subject to the penultimate sentence of this paragraph, the
bargaining agreement, the prevailing labor relations system and all their rights Commission shall sit en banc only for purposes of promulgating rules and
and obligations under existing labor laws. regulations governing the hearing and disposition of cases before any of its
divisions and regional branches, and formulating policies affecting its
Article 291 (a) administration and operations. The Commission shall exercise its adjudicatory
Miscellaneous Provisions. All unions are authorized to collect reasonable and all other powers, functions, and duties through its divisions. Of the eight (8)
membership fees, union dues, assessments and fines and other contributions divisions, the first, second, third, fourth, fifth and sixth divisions shall handle
for labor education and research, mutual death and hospitalization benefits, cases coming from the National Capital Region and the parts of Luzon; and the
welfare fund, strike fund and credit and cooperative undertakings. seventh, and eighth divisions, cases from the Visayas and Mindanao,
respectively; Provided that the Commission sitting en banc may, on temporary
Note: or emergency basis, allow cases within the jurisdiction of any division to be
- A strike is an economic weapon at war with the policy of the heard and decided by any other division whose docket allows the additional
workload and such transfer will not expose litigants to unnecessary additional
Constitution and the law at that time. Resorting thereto is a choice
expense. The divisions of the Commission shall have exclusive appellate
of the laborers, therefore, they must accept all the risks attendant jurisdiction over cases within their respective territorial jurisdictions.
upon their choice. If they succeed and the employer succumbs, the The concurrence of two (2) Commissioners of a division shall be necessary for
law will not stand in their way in the enjoyment of the lawful fruits the pronouncement of judgment or resolution. Whenever the required
of their victory. But if they fail, they cannot thereafter invoke the membership in a division is not complete and the concurrence of two (2)
protection of the law for the consequences of their conduct unless

4 VICTORIA V INCIONG (1988)


5 ESTATE OF NELSON DULAY V. ABOITIZ (2012)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 2 79
D. Machinery of Dispute Settlement || National labor relations commission (NLRC) || NATIONAL LABOR RELATIONS ACT (WAGNER ACT)
« Note: »

commissioners to arrive at a judgment or resolution cannot be obtained, the (b) To administer oaths, summon the parties to a controversy, issue subpoenas
Chairman shall designate such number of additional Commissioners from the requiring the attendance and testimony of witnesses or the production of
other divisions as may be necessary. such books, papers, contracts, records, statement of accounts, agreements,
The conclusions of a division on any case submitted to it for decision shall be and others as may be material to a just determination of the matter under
reached in consultation before the case is assigned to a member for the writing investigation, and to testify in any investigation or hearing conducted in
of the opinion. It shall be mandatory for the division to meet for purposes of pursuance of this Code;
the consultation ordained herein. A certification to this effect signed by the (c) To conduct investigation for the determination of a question, matter or
Presiding Commissioner of the division shall be issued and a copy thereof controversy within its jurisdiction, proceed to hear and determine the
attached to the record of the case and served upon the parties. disputes in the absence of any party thereto who has been summoned or
served with notice to appear, conduct its proceedings or any part thereof in
The Chairman shall be the Presiding Commissioner of the first division and the
public or in private, adjourn its hearings to any time and place, refer
seven (7) other members from the public sector shall be the Presiding
technical matters or accounts to an expert and to accept his report as
Commissioners of the second, third, fourth, fifth, sixth, and seventh divisions,
evidence after hearing of the parties upon due notice, direct parties to be
respectively. In case of the effective absence or incapacity of the Chairman, the
joined in or excluded from the proceedings, correct, amend, or waive any
Presiding Commissioner of the second division shall be the Acting Chairman.
error, defect or irregularity whether in substance or in form, give all such
The Chairman, aided by the Executive Clerk of the Commission, shall have directions as it may deem necessary or expedient in the determination of
administrative supervision over the Commission and its regional branches and the dispute before it, and dismiss any matter or refrain from further hearing
all its personnel, including the Labor Arbiters. or from determining the dispute or part thereof, where it is trivial or where
The Commission, when sitting en banc shall be assisted by the same Executive further proceedings by the Commission are not necessary or desirable; and
Clerk and, when acting thru its Divisions, by said Executive Clerks for its first (d) To hold any person in contempt directly or indirectly and impose
division and seven (7) other Deputy Executive Clerks for the second, third, appropriate penalties therefor in accordance with law.
fourth, fifth, sixth, seventh and eighth Divisions, respectively, in the A person guilty of misbehavior in the presence of or so near the Chairman or
performance of such similar or equivalent functions and duties as are any member of the Commission or any Labor Arbiter as to obstruct or interrupt
discharged by the Clerk of Court and Deputy Clerks of Court of the Court of the proceedings before the same, including disrespect toward said officials,
Appeals. offensive personalities toward others, or refusal to be sworn, or to answer as a
The Commission and its eight (8) divisions shall be assisted by the Commission witness or to subscribe an affidavit or deposition when lawfully required to do
Attorneys in its Appellate and adjudicatory functions whose term shall be so, may be summarily adjudged in direct contempt by said officials and
coterminous with the Commissioners with whom they are assigned. The punished by fine not exceeding five hundred pesos (P500) or imprisonment not
Commission Attorneys shall be members of the Philippine Bar with at least one exceeding five (5) days, or both, if it be the Commission, or a member thereof,
(1) year experience or exposure in the field of labor-management relations. or by a fine not exceeding one hundred pesos (P100) or imprisonment not
They shall receive annual salaries and shall be entitled to the same allowances exceeding one (1) day, or both, if it be a Labor Arbiter.
and benefits as those falling under Salary Grade twenty-six (SG 26). There shall The person adjudged in direct contempt by a Labor Arbiter may appeal to the
be as many Commission Attorneys as may be necessary for the effective and Commission and the execution of the judgment shall be suspended pending the
efficient operations of the Commission but in no case more than three (3) resolution of the appeal upon the filing by such person of a bond on condition
assigned to the Office of the Chairman and each Commissioner. that he will abide by and perform the judgment of the Commission should the
No Labor Arbiter shall be assigned to perform the functions of the Commission appeal be decided against him. Judgment of the Commission on direct
Attorney nor detailed to the office of any Commissioner. contempt is immediately executory and unappealable. Indirect contempt shall
be dealt with by the Commission or Labor Arbiter in the manner prescribed
Article 224 under Rule 71 of the Revised Rules of Court; and
Jurisdiction of the Labor Arbiters and the Commission. (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
A. Except as otherwise provided under this Code, the Labor Arbiters shall have
in any labor dispute which, if not restrained or performed forthwith, may
original and exclusive jurisdiction to hear and decide, within thirty (30) calendar
cause grave or irreparable damage to any party or render ineffectual any
days after the submission of the case by the parties for decision without
decision in favor of such party: Provided, That no temporary or permanent
extension, even in the absence of stenographic notes, the following cases
injunction in any case involving or growing out of a labor dispute as defined
involving all workers, whether agricultural or non-agricultural:
in this Code shall be issued except after hearing the testimony of witnesses,
1. Unfair labor practice cases; with opportunity for cross-examination, in support of the allegations of a
2. Termination disputes; complaint made under oath, and testimony in opposition thereto, if offered,
3. If accompanied with a claim for reinstatement, those cases that workers and only after a finding of fact by the Commission, to the effect:
may file involving wages, rates of pay, hours of work and other terms and 1. That prohibited or unlawful acts have been threatened and will be
conditions of employment; committed and will be continued unless restrained, but no injunction or
4. Claims for actual, moral, exemplary and other forms of damages arising temporary restraining order shall be issued on account of any threat,
from the employer-employee relations; prohibited or unlawful act, except against the person or persons,
association or organization making the threat or committing the
5. Cases arising from any violation of Article 264 of this Code, including
prohibited or unlawful act or actually authorizing or ratifying the same
questions involving the legality of strikes and lockouts; and
after actual knowledge thereof;
6. Except claims for Employees Compensation, Social Security, Medicare and
2. That substantial and irreparable injury to complainant’s property will
maternity benefits, all other claims arising from employer-employee
follow;
relations, including those of persons in domestic or household service,
involving an amount exceeding five thousand pesos (P5,000.00) regardless 3. That as to each item of relief to be granted, greater injury will be
of whether accompanied with a claim for reinstatement. inflicted upon complainant by the denial of relief than will be inflicted
upon defendants by the granting of relief;
B. The Commission shall have exclusive appellate jurisdiction over all cases
decided by Labor Arbiters. 4. That complainant has no adequate remedy at law; and
C. Cases arising from the interpretation or implementation of collective 5. That the public officers charged with the duty to protect complainant’s
bargaining agreements and those arising from the interpretation or property are unable or unwilling to furnish adequate protection.
enforcement of company personnel policies shall be disposed of by the Labor Such hearing shall be held after due and personal notice thereof has been
Arbiter by referring the same to the grievance machinery and voluntary served, in such manner as the Commission shall direct, to all known persons
arbitration as may be provided in said agreements. against whom relief is sought, and also to the Chief Executive and other public
officials of the province or city within which the unlawful acts have been
Article 225 threatened or committed, charged with the duty to protect complainant’s
property: Provided, however, that if a complainant shall also allege that, unless
Powers of the Commission. The Commission shall have the power and
a temporary restraining order shall be issued without notice, a substantial and
authority:
irreparable injury to complainant’s property will be unavoidable, such a
(a) To promulgate rules and regulations governing the hearing and disposition temporary restraining order may be issued upon testimony under oath,
of cases before it and its regional branches, as well as those pertaining to its sufficient, if sustained, to justify the Commission in issuing a temporary
internal functions and such rules and regulations as may be necessary to injunction upon hearing after notice. Such a temporary restraining order shall
carry out the purposes of this Code; be effective for no longer than twenty (20) days and shall become void at the

_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 3 79
D. Machinery of Dispute Settlement || Bureau of Labor Relations (BLR); Labor Relations Division (LRD) || NATIONAL LABOR RELATIONS ACT (WAGNER ACT)
« Note: »

expiration of said twenty (20) days. No such temporary restraining order or (j) violations of the rights and conditions of membership in a union or workers’
temporary injunction shall be issued except on condition that complainant shall association;
first file an undertaking with adequate security in an amount to be fixed by the (k) violations of rights of LLOs, except interpretation of CBAs;
Commission sufficient to recompense those enjoined for any loss, expense or (l) validity/invalidity of impeachment/expulsion/suspension or any disciplinary
damage caused by the improvident or erroneous issuance of such order or action meted against any officer and member, including those arising from
injunction, including all reasonable costs, together with a reasonable attorney’s non-compliance with the reportorial requirements under Rule V;
fee, and expense of defense against the order or against the granting of any (m) such other disputes or conflicts involving the rights to self-organization,
injunctive relief sought in the same proceeding and subsequently denied by the union membership and collective bargaining:
Commission. 1) between and among LLOs; and
The undertaking herein mentioned shall be understood to constitute an 2) between and among members of a union or workers’ association.
agreement entered into by the complainant and the surety upon which an order
may be rendered in the same suit or proceeding against said complainant and B. Other labor relations disputes, not otherwise covered by Article 217 Old LC,
surety, upon a hearing to assess damages, of which hearing, complainant and shall include:
surety shall have reasonable notice, the said complainant and surety (a) any conflict between:
submitting themselves to the jurisdiction of the Commission for that purpose. 1) a labor union and the employer, or
But nothing herein contained shall deprive any party having a claim or cause of 2) a labor union and a group that is not a LO; or
action under or upon such undertaking from electing to pursue his ordinary 3) a labor union and an individual who is not member of such union;
remedy by suit at law or in equity: Provided, further, That the reception of (b) cancellation of registration of unions and workers associations filed by
evidence for the application of a writ of injunction may be delegated by the individual’s other than its members, or group that is not a LO; and
Commission to any of its Labor Arbiters who shall conduct such hearings in such (c) a petition for interpleader involving labor relations.
places as he may determine to be accessible to the parties and their witnesses
and shall submit thereafter his recommendation to the Commission. Section 2
Effects of the Filing/Pendency of Inter/Intra-Union and Other Related Labor
Article 226 Relations Disputes. The rights, relationships and obligations of the parties
Ocular inspection. The Chairman, any Commissioner, Labor Arbiter or their duly litigants against each other and other parties-in-interest prior to the institution
authorized representatives, may, at any time during working hours, conduct an of the petition shall continue to remain during the pendency of the petition and
ocular inspection on any establishment, building, ship or vessel, place or until the date of finality of the decision rendered therein. Thereafter, the rights,
premises, including any work, material, implement, machinery, appliance or any relationships and obligations of the parties litigants against each other and other
object therein, and ask any employee, laborer, or any person, as the case may parties-in-interest shall be governed by the decision so ordered.
be, for any information or data concerning any matter or question relative to
The filing or pendency of any inter/intra-union dispute and other related labor
the object of the investigation.
relations dispute is not a prejudicial question to any PCE and shall not be a
ground for the dismissal of a PCE or suspension of proceedings for certification
Note: election.
- Decisions of NLRC are appealable to CA and not to SC. The rationale
is to ease the caseload of SC and prevent delay. It is also more Section 3
advantageous for the litigants because of the power of CA to review Who May File. Any LLO or member(s) thereof specially concerned may file a
factual issues and re-examine evidence presented.6 complaint or petition involving disputes or issues enumerated in Section 1 hereof.
Any party-in-interest may file a complaint or petition involving disputes or issues
BUREAU OF LABOR RELATIONS (BLR); LABOR RELATIONS enumerated in Section 2 hereof.
DIVISION (LRD)
Section 4
Article 219 (b)
Where to File. Complaints or petitions involving labor unions with independent
"Bureau" means the Bureau of Labor Relations and/or the Labor Relations registrations, chartered locals, workers’ associations, its officers or members
Divisions in the regional offices established under Presidential Decree No. 1, in the shall be filed with the RO that issued its certificate of registration or certificate of
Department of Labor. creation of chartered local. Complaints involving federations, national unions, its
officers or member orgs shall be filed with the Bureau.
Article 232
Petitions for cancellation of registration of labor unions with independent
Bureau of Labor Relations. The Bureau of Labor Relations and the Labor
registration, chartered locals and workers’ association and petitions for
Relations Divisions in the regional offices of the Department of Labor, shall have
deregistration of CBAs shall be resolved by the RD. He/She may appoint a Hearing
original and exclusive authority to act, at their own initiative or upon request of
Officer from the LRD.
either or both parties, on all inter-union and intra-union conflicts, and all
disputes, grievances or problems arising from or affecting labor-management Other inter/intra-union disputes and related labor relations disputes shall be
relations in all workplaces, whether agricultural or non-agricultural, except heard and resolved by the MA in the RO.
those arising from the implementation or interpretation of collective bargaining Complaints or petitions involving federations, national or industry unions, trade
agreements which shall be the subject of grievance procedure and/or voluntary union centers and their chartered locals, affiliates or member orgs shall be filed
arbitration. either with the RO or the Bureau. The complaint or petition shall be heard and
The Bureau shall have fifteen (15) working days to act on labor cases before it, resolved by the Bureau.
subject to extension by agreement of the parties. When two or more petitions involving the same parties and the same causes of
action are filed, the same shall be automatically consolidated.
Rule XI, Book V, Section 1
Section 5
Coverage.
Formal Requirements of the Complaint or Petition. The complaint or petition
A. Inter/Intra-union disputes shall include:
shall be in writing verified under oath and shall, among others, contain the ff:
(a) conduct or nullification of election of officers of unions nad workers’
(a) name, address and other personal circumstances of the complainant(s) or
associations;
petitioner(s);
(b) audit/accounts examination of union or workers’ association funds;
(b) name address and other personal circumstances of the respondent(s) or
(c) deregistration of CBAs;
person(s) charged;
(d) validity/invalidity of union affiliation or disaffiliation;
(c) nature of the complaint or petition;
(e) validity/invalidity of acceptance/non-acceptance for union membership;
(d) facts and circumstances surrounding the complaint or petition;
(f) validity/invalidity of voluntary recognition;
(e) cause(s) of action or specific violation(s) committed;
(g) opposition to application for union or cba registration;
(f) a statement that the administrative remedies provided for in the
(h) violations of or disagreements over any provision of the constitution and
constitution and by-laws have been exhausted or such remedies are not
by-laws of a union or workers’ association;
readily available to the complainant(s) or petitioner(s) through no fault of
(i) disagreements over chartering or registration of LOs or the registration of
his/her/their own, or compliance with such administrative remedies does
CBAs;
not apply to complainant(s)/petitioner(s);
(g) reliefs prayed for;
6 ST. MARTINS FUNERAL HOMES V. NLRC (1998)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 4 79
D. Machinery of Dispute Settlement || Bureau of Labor Relations (BLR); Labor Relations Division (LRD) || NATIONAL LABOR RELATIONS ACT (WAGNER ACT)
« Note: »

(h) certificate of non-forum shopping; and Section 14


(i) other relevant matters. Release of Decision. The notice of decision shall be signed by the Records Officer
Section 6 in the Bureau and by the Med-Arbiter or Hearing Officer in the Regional Office.
Raffle of the Case. Upon the filing of the complaint/petition, the RD or any of Within twenty (20) days from date of last hearing, the decision shall be released
his/her authorized representative in the RO and the Docket Section of the Bureau to the parties personally on a date and time agreed upon during the last hearing.
shall allow the party filing the complaint/petition to determine the MA or
Hearing Officer assigned to the case by means of a raffle. Where there is only one Section 15
MA or Hearing Officer in the region, the raffle shall be dispensed with and the Appeal. The decision of the Med-Arbiter and Regional Director may be appealed
complaint/petition shall be assigned to him/her. to the Bureau by any of the parties within ten (10) days from receipt thereof, copy
furnished the opposing party. The decision of the Bureau Director in the exercise
Section 7 of his/her original jurisdiction may be appealed to the Office of the Secretary by
Notice of Preliminary Conference. Immediately after the raffle of the case or any party within the same period, copy furnished the opposing party.
receipt of the complaint or petition, the same shall be transmitted to the Med- The appeal shall be verified under oath and shall consist of a memorandum of
Arbiter or Hearing Officer, as the case may be, who shall in the same instance appeal specifically stating the grounds relied upon by the appellant, with
prepare the notice for preliminary conference and cause the service thereof supporting arguments and evidence.
upon the party filing the petition. The preliminary conference shall be scheduled
within ten (10) days from receipt of the complaint or petition. Section 16
Within three (3) days from receipt of the complaint or petition, the Med-Arbiter Where to file appeal. The memorandum of appeal shall be filed in the Regional
or Hearing Officer, as the case may be, shall cause the service of summons upon Office or Bureau where the complaint or petition originated. Within twenty-four
the respondent(s) named therein, directing him/her to file his/her (24) hours from receipt of the memorandum of appeal, the Bureau or Regional
answer/comment on the complaint or petition on or before the scheduled Director shall cause the transmittal thereof together with the entire records of
preliminary conference and to appear before the Med-Arbiter or Hearing Officer the case to the Office of the Secretary or the Bureau, as the case may be.
on the scheduled preliminary conference.
Section 17
Finality of Decision. Where no appeal is filed within the ten-day period, the
Section 8
Bureau and Regional Director or Med-Arbiter, as the case may be, shall enter the
Conduct of preliminary conference. The Med-Arbiter or Hearing Officer, as the finality of the decision in the records of the case and cause the immediate
case may be, shall conduct a preliminary conference and hearing within ten (10) implementation thereof.
days from receipt of the complaint or petition. He/She shall exert every effort to
effect an amicable settlement of the dispute. Where the parties agree to settle Section 18
amicably, their agreements shall be specified in the minutes of the conference Period to reply. A reply to the appeal may be filed by any party to the complaint
and a decision based on compromise shall be issued by the Med-Arbiter or the or petition within ten (10) days from receipt of the memorandum of appeal. The
Regional Director, as the case may be, within five (5) days from the date of the reply shall be filed directly with the Bureau or the Office of the Secretary, as the
mandatory conference. Where no amicable settlement is reached, the Med- case may be.
Arbiter or Hearing Officer, as the case may be, shall proceed with the stipulation
of facts, limitation or definition of the issues, clarificatory questioning and Section 19
submission of laws and jurisprudence relied upon in support of each other's Decision of the Bureau / Office of the Secretary. The Bureau Director or the
claims and defenses Secretary, as the case may be, shall have twenty (20) days from receipt of the
entire records of the case within which to decide the appeal. The filing of the
Section 9
memorandum of appeal from the decision of the Med-Arbiter or Regional
Conduct of Hearing(s). The Med-Arbiter or Hearing Officer, as the case may be, Director and Bureau Director stays the implementation of the assailed decision.
shall determine whether to call further hearing(s) on the complaint or petition.
The Bureau or Office of the Secretary may call the parties to a clarificatory
Where the Med-Arbiter or Hearing Officer, as the case may be, decides to conduct
hearing in aid of its appellate jurisdiction.
further hearing(s), he/she shall require the parties to submit the affidavits of
their witnesses and such documentary evidence material to prove each other's Section 20
claims and defenses. The hearing(s) shall be limited to clarificatory questions by
Finality of Decision of Bureau/Office of the Secretary. The decision of the
the Med-Arbiter or Hearing Officer and must be completed within twenty-five
Bureau or the Office of the Secretary shall become final and executory after ten
(25) days from the date of preliminary conference. The complaint or petition shall
(10) days from receipt thereof by the parties, unless a motion for its
be considered submitted for decision after the date of the last hearing or upon
reconsideration is filed by any party therein within the same period. Only one (1)
expiration of twenty-five (25) days from date of preliminary conference,
motion for reconsideration of the decision of the Bureau or the Office of the
whichever comes first.
Secretary in the exercise of their appellate jurisdiction shall be allowed.
Section 10
Section 21
Affirmation of testimonial evidence. Any affidavit submitted by a party to prove
Execution of decision. The decision of the Med-Arbiter and Regional Director
his/her claims or defenses shall be re-affirmed by the presentation of the affiant
shall automatically be stayed pending appeal with the Bureau. The decision of the
before the Med-Arbiter or Hearing Officer, as the case may be. Any affidavit
Bureau in the exercise of its appellate jurisdiction shall be immediately executory
submitted without the re-affirmation of the affiant during a scheduled hearing
upon issuance of entry of final judgment.
shall not be admitted in evidence, except when the party against whom the
affidavit is being offered admits all allegations therein and waives the The decision of the Bureau in the exercise of its original jurisdiction shall
examination of the affiant. automatically be stayed pending appeal with the Office of the Secretary. The
decision of the Office of the Secretary shall be immediately executory upon
Section 11 issuance of entry of final judgment.
Filing of pleadings. The parties may file his/her pleadings, including their
Section 22
respective position papers, within the twenty-five (25) day period prescribed for
the conduct of hearing(s). No other pleading shall be considered or entertained Transmittal of records to the Regional Office/Bureau. Within forty-eight (48)
after the case is considered submitted for decision. hours from notice of receipt of decision by the parties and finality of the decision,
the entire records of the case shall be remanded to the Bureau or Regional Office
Section 12 of origin for implementation. The implementation of the decision shall not be
Hearing and resolution of the complaint or petition in the Bureau. The Bureau stayed unless restrained by the appropriate court.
shall observe the same process and have the same period within which to hear
and resolve the complaints or petitions filed before it. Note:
- There are two modes of appeal for petition of cancellation of
Section 13 registration.
Decision. The Bureau and the Med-Arbiter or Regional Director, as the case may o When the petition is filed in the Regional Office (MA), it can be
be, shall have twenty (20) days from the date of the last hearing within which to appealed to the BLR whose decision is final.
decide the complaint or petition. The decision shall state the facts, findings,
conclusion, and reliefs granted.

_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 5 79
D. Machinery of Dispute Settlement || National Conciliation Mediation Board || NATIONAL LABOR RELATIONS ACT (WAGNER ACT)
« Note: »

o When the petition is filed directly to the BLR, only then can the or matters under the exclusive and original jurisdiction of the Voluntary
SOLE exercise its appellate jurisdiction, and whose decision is Arbitrator or panel of Voluntary Arbitrators and shall immediately dispose and
final. refer the same to the Grievance Machinery or Voluntary Arbitration provided in
§ In both situations, the proper remedy is certiorari under Rule the Collective Bargaining Agreement.
65 filed in CA.7 Article 274
Jurisdiction Over Other Labor Disputes. The Voluntary Arbitrator or panel of
NATIONAL CONCILIATION MEDIATION BOARD
Voluntary Arbitrators, upon agreement of the parties, shall also hear and
Article 219 (c) decide all other labor disputes including unfair labor practices and bargaining
"Board" means the National Conciliation and Mediation Board established deadlocks.
under Executive Order No. 126.
Note:
Article 260 (c)
- The decisions of the voluntary arbitrator are akin to those of the
If the dispute is not settled, the Board shall intervene upon request of either or
RTC, and, therefore, should first be appealed to the Court of Appeals
both parties or at its own initiative and immediately call the parties to
conciliation meetings. The Board shall have the power to issue subpoenas under Rule 43 before being elevated to the SC. Certiorari can only be
requiring the attendance of the parties to such meetings. It shall be the duty of granted (despite the availability of other appeals) under exceptional
the parties to participate fully and promptly in the conciliation meetings the circumstances:
Board may call. o Public welfare and public policy
o Interest of justice
Article 260 (d) o Writs issued were null and void
During the conciliation proceedings in the Board, the parties are prohibited o The questioned order is an oppressive exercise of judicial
from doing any act which may disrupt or impede the early settlement of the
authority8
disputes; and
ADMINISTRATIVE INTERVENTION FOR DISPUTE
Article 260 (e)
AVOIDANCE
The Board shall exert all efforts to settle disputes amicably and encourage the
parties to submit their case to a voluntary arbitrator. DOLE Circular No. 1 (Series of 2006)
1. Either or both the employer and the certified collective bargaining agent (or
the representative of the employees where there is no certified bargaining
VOLUNTARY ARBITRATION; VOLUNTARY ARBITRATION
agent) may voluntarily bring to the Office of the Secretary of Labor and
ADVISORY COUNCIL Employment, through a REQUEST FOR INTERVENTION, any potential or
Article 219 (d) ongoing dispute defined below.
"Council" means the Tripartite Voluntary Arbitration Advisory Council A potential or ongoing dispute refers to:
established under Executive Order No. 126, as amended. a. a live and active dispute;
b. that may lead to a strike or lockout or to massive labor unrest;
Article 272 c. is not the subject of any complaint or notice of strike or lockout at the
The parties to a Collective Bargaining Agreement shall include therein time a REQUEST FOR INTERVENTION is made.
provisions that will ensure the mutual observance of its terms and conditions. This recourse is separate from the established dispute resolution modes of
They shall establish a machinery for the adjustment and resolution of mediation, conciliation and arbitration under the Labor Code, and is an
grievances arising from the interpretation or implementation of their Collective alternative to other voluntary modes of dispute resolution such as the
Bargaining Agreement and those arising from the interpretation or voluntary submission of a dispute to the Regional Director for mediation, to
enforcement of company personnel policies. the National Conciliation and Mediation Board (NCMB) for preventive
All grievances submitted to the grievance machinery which are not settled mediation, or to the intervention of a regional or local tripartite peace council
within seven (7) calendar days from the date of its submission shall for the same purpose.
automatically be referred to voluntary arbitration prescribed in the Collective 2. All REQUESTS shall be in writing and filed with the Office of the Secretary. A
Bargaining Agreement. REQUEST shall state: a. the name and address of the employer; b. the name
For this purpose, parties to a Collective Bargaining Agreement shall name and of the certified bargaining agent, or the employee representative duly
designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators, designated in writing by a majority of the employees where there is no
or include in the agreement a procedure for the selection of such Voluntary collective bargaining agent; c. the number of employees affected by the
Arbitrator or panel of Voluntary Arbitrators, preferably from the listing of potential or ongoing dispute; and d. a brief description of the potential or
qualified Voluntary Arbitrators duly accredited by the Board. In case the parties ongoing dispute.
fail to select a Voluntary Arbitrator or panel of Voluntary Arbitrators, the 3. Upon receipt of the REQUEST, the Office of the Secretary shall forthwith
Board shall designate the Voluntary Arbitrator or panel of Voluntary notify the parties and invite them for conference. The conference for
Arbitrators, as may be necessary, pursuant to the selection procedure agreed REQUESTS coming from the National Capital Region, Regions III, IV-A or IV-
upon in the Collective Bargaining Agreement, which shall act with the same B shall be held at the Office of the Secretary of Labor and Employment
force and effect as if the Arbitrator or panel of Arbitrators has been selected unless the Secretary otherwise directs. The conference for REQUESTS
by the parties as described above. coming from the other regions shall be conducted by the Regional Director
for the Secretary.
Article 273 4. The Office of the Secretary or the Regional director, in the proper case, shall
Jurisdiction of Voluntary Arbitrators or Panel of Voluntary Arbitrators. The proceed to intervene after the parties shall have manifested that;
Voluntary Arbitrator or panel of Voluntary Arbitrators shall have original and a. they voluntarily submit their potential or ongoing dispute to
exclusive jurisdiction to hear and decide all unresolved grievances arising from intervention by the Office of the Secretary of Labor and Employment;
the interpretation or implementation of the Collective Bargaining Agreement b. there is no pending notice of strike or lockout or any related complaint
and those arising from the interpretation or enforcement of company in relation with their potential or ongoing dispute;
personnel policies referred to in the immediately preceding article. Accordingly, c. they shall refrain from any strike or lockout or any form of work
violations of a Collective Bargaining Agreement, except those which are gross stoppage or from filing any related complaint while the Secretary's
in character, shall no longer be treated as unfair labor practice and shall be intervention is in effect; and
resolved as grievances under the Collective Bargaining Agreement. For d. they shall abide by the agreement reached, whose terms may be
purposes of this article, gross violations of Collective Bargaining Agreement enforced through the appropriate writs issued by the Secretary of
shall mean flagrant and/or malicious refusal to comply with the economic Labor and Employment.
provisions of such agreement. All agreements settling the dispute shall be in writing and signed by the
parties as well as the official who mediated the dispute.
The Commission, its Regional Offices and the Regional Directors of the
5. The parties and officials or employees of the Department of Labor and
Department of Labor and Employment shall not entertain disputes, grievances

7 ABBOT LABORATORIES V. ABBOT LABORATORIES EMPLOYEES UNION (2000) 8 AMA COMPUTER COLLEGE V. NACINO (2008)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 6 79
E. Industrial Peace || administrative intervention for dispute avoidance || NATIONAL LABOR RELATIONS ACT (WAGNER ACT)
« Note: »

Employment who took part in the intervention proceedings shall not testify F. Worker Participation in Decision and
in any court or body regarding the disclosures, submissions or positions
made by the parties in these proceedings. Policy Making Processes Affecting
6. If the intervention fails, either or both parties may avail themselves of the Rights, Duties and Welfare
remedies provided under the Labor Code. Alternatively, the parties may
Article 218 A (g)
submit their dispute to the Office of the Secretary for voluntary arbitration.
Such voluntary arbitration shall be limited to the issues defined in the Policy. To ensure a stable but dynamic and just industrial peace;
parties' submission to voluntary arbitration agreement and shall be decided
Article 266, 2nd par.
on the basis of the parties' position papers and submitted evidence. The
Office of the Secretary shall resolve the dispute within sixty (60) days from Any provision of law to the contrary notwithstanding, workers shall have the
the parties' submission of the dispute for resolution. right, subject to such rules and regulations as the Secretary of Labor and
7. This circular shall take effect fifteen (15) days after publication in a Employment may promulgate, to participate in policy and decision-making
newspaper of general publication. Done in the City of Manila, Philippines, 11 processes of the establishment where they are employed insofar as said
August 2006. processes will directly affect their rights, benefits and welfare. For this
purpose, workers and employers may form labor- management councils:
Provided, That the representatives of the workers in such labor-management
E. Industrial Peace councils shall be elected by at least the majority of all employees in said
establishment.
Article XIII, Section 3, 3rd par. (1987 Constitution)
The State shall promote the principle of shared responsibility between workers Article 291 (g)
and employers and the preferential use of voluntary modes in settling
Miscellaneous Provisions. The Ministry shall help promote and gradually
disputes, including conciliation, and shall enforce their mutual compliance
develop, with the agreement of labor organizations and employers, labor-
therewith to foster industrial peace.
management cooperation programs at appropriate levels of the enterprise
Article 218 A (f) based on the shared responsibility and mutual respect in order to ensure
industrial peace and improvement in productivity, working conditions and the
Policy. To ensure a stable but dynamic and just industrial peace.
quality of working life.
Article 287
Note:
Study of labor ­ management relations. The Secretary of Labor shall have the
power and it shall be his duty to inquire into: - It is the policy of the state to ensure the participation of workers in
a) the existing relations between employers and employees in the Philippines;
decision and policy-making processes affecting their rights, duties,
b) the growth of associations of employees and the effect of such associations and welfare. Industrial peace cannot be achieved if employees are
upon employer-employee relations; denied their just participation in the discussion of matters affecting
c) the extent and results of the methods of collective bargaining in the their rights.9
determination of terms and conditions of employment;
d) the methods which have been tried by employers and associations of
employees for maintaining mutually satisfactory relations;
e) desirable industrial practices which have been developed through collective
bargaining and other voluntary arrangements;
f) the possible ways of increasing the usefulness and efficiency of collective
bargaining for settling differences;
g) the possibilities for the adoption of practical and effective methods of
labor-management cooperation;
h) any other aspects of employer-­‐employee relations concerning the
promotion of harmony and understanding between the parties; and
i) the relevance of labor laws and labor relations to national development.

The Secretary of Labor shall also inquire into the causes of industrial unrest
and take all the necessary steps within his power as may be prescribed by law
to alleviate the same, and shall from time to time recommend the enactment
of such remedial legislation as in his judgment may be desirable for the
maintenance and promotion of industrial peace.

9 PAL V. NLRC (1993)


_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 7 79
A. Sources and Bases of the Right to Self-Organization || administrative intervention for dispute avoidance || NATIONAL LABOR RELATIONS ACT (WAGNER ACT)
« Note: »

Right to Self-
International Covenant on Economic, Social and Cultural Rights (ICESCR)
Article 2
1. Each State Party to the present Covenant undertakes to take steps,

Organization
individually and through international assistance and co-operation,
especially economic and technical, to the maximum of its available
resources, with a view to achieving progressively the full realization of the
rights recognized in the present Covenant by all appropriate means,
A. Sources and Bases of the Right to including particularly the adoption of legislative measures.
Self-Organization 2. The States Parties to the present Covenant undertake to guarantee that the
rights enunciated in the present Covenant will be exercised without
Universal Declaration of Human Rights discrimination of any kind as to race, colour, sex, language, religion, political
Preamble or other opinion, national or social origin, property, birth or other status.
Whereas recognition of the inherent dignity and of the equal and inalienable 3. Developing countries, with due regard to human rights and their national
rights of all members of the human family is the foundation of freedom, economy, may determine to what extent they would guarantee the
justice and peace in the world, economic rights recognized in the present Covenant to non-nationals.
Whereas disregard and contempt for human rights have resulted in barbarous
acts which have outraged the conscience of mankind, and the advent of a Article 8
world in which human beings shall enjoy freedom of speech and belief and 1. The States Parties to the present Covenant undertake to ensure:
freedom from fear and want has been proclaimed as the highest aspiration of (a) The right of everyone to form trade unions and join the trade union of
the common people, his choice, subject only to the rules of the organization concerned, for
Whereas it is essential, if man is not to be compelled to have recourse, as a last the promotion and protection of his economic and social interests. No
resort, to rebellion against tyranny and oppression, that human rights should restrictions may be placed on the exercise of this right other than those
be protected by the rule of law, prescribed by law and which are necessary in a democratic society in
Whereas it is essential to promote the development of friendly relations the interests of national security or public order or for the protection of
between nations, the rights and freedoms of others;
(b) The right of trade unions to establish national federations or
Whereas the peoples of the United Nations have in the Charter reaffirmed their
confederations and the right of the latter to form or join international
faith in fundamental human rights, in the dignity and worth of the human
trade-union organizations;
person and in the equal rights of men and women and have determined to
(c) The right of trade unions to function freely subject to no limitations
promote social progress and better standards of life in larger freedom,
other than those prescribed by law and which are necessary in a
Whereas Member States have pledged themselves to achieve, in co-operation democratic society in the interests of national security or public order
with the United Nations, the promotion of universal respect for and or for the protection of the rights and freedoms of others;
observance of human rights and fundamental freedoms, (d) The right to strike, provided that it is exercised in conformity with the
Whereas a common understanding of these rights and freedoms is of the laws of the particular country.
greatest importance for the full realization of this pledge, 2. This article shall not prevent the imposition of lawful restrictions on the
Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL exercise of these rights by members of the armed forces or of the police or
DECLARATION OF HUMAN RIGHTS as a common standard of achievement for of the administration of the State.
all peoples and all nations, to the end that every individual and every organ of 3. Nothing in this article shall authorize States Parties to the International
society, keeping this Declaration constantly in mind, shall strive by teaching Labour Organisation Convention of 1948 concerning Freedom of Association
and education to promote respect for these rights and freedoms and by and Protection of the Right to Organize to take legislative measures which
progressive measures, national and international, to secure their universal and would prejudice, or apply the law in such a manner as would prejudice, the
effective recognition and observance, both among the peoples of Member guarantees provided for in that Convention.
States themselves and among the peoples of territories under their
jurisdiction. ILO Convention No. 87
Preamble
Article 2 The General Conference of the International Labour Organisation,
Everyone is entitled to all the rights and freedoms set forth in this Declaration, Having been convened at San Francisco by the Governing Body of the
without distinction of any kind, such as race, colour, sex, language, religion, International Labour Office, and having met in its Thirty-first Session on 17
political or other opinion, national or social origin, property, birth or other June 1948;
status. Furthermore, no distinction shall be made on the basis of the political,
Having decided to adopt, in the form of a Convention, certain proposals
jurisdictional or international status of the country or territory to which a
concerning freedom of association and protection of the right to organise,
person belongs, whether it be independent, trust, non-self-governing or under
which is the seventh item on the agenda of the session;
any other limitation of sovereignty.
Considering that the Preamble to the Constitution of the International Labour
Article 23 (4) Organisation declares "recognition of the principle of freedom of association"
Everyone has the right to form and to join trade unions for the protection of to be a means of improving conditions of labour and of establishing peace;
his interests. Considering that the Declaration of Philadelphia reaffirms that "freedom of
expression and of association are essential to sustained progress";
International Covenant on Civil and Political Rights (ICCPR) Considering that the International Labour Conference, at its Thirtieth Session,
Article 22 unanimously adopted the principles which should form the basis for
1. Everyone shall have the right to freedom of association with others, international regulation;
including the right to form and join trade unions for the protection of his Considering that the General Assembly of the United Nations, at its Second
interests. Session, endorsed these principles and requested the International Labour
2. No restrictions may be placed on the exercise of this right other than Organisation to continue every effort in order that it may be possible to adopt
those which are prescribed by law and which are necessary in a democratic one or several international Conventions;
society in the interests of national security or public safety, public order
(ordre public), the protection of public health or morals or the protection adopts this ninth day of July of the year one thousand nine hundred and forty-
of the rights and freedoms of others. This article shall not prevent the eight the following Convention, which may be cited as the Freedom of
imposition of lawful restrictions on members of the armed forces and of Association and Protection of the Right to Organise Convention, 1948:
the police in their exercise of this right.

_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 8 79
A. Sources and Bases of the Right to Self-Organization || administrative intervention for dispute avoidance || NATIONAL LABOR RELATIONS ACT (WAGNER ACT)
« Note: »

PART I. FREEDOM OF ASSOCIATION ILO Convention No. 98


Article 1 Preamble
Each Member of the International Labour Organisation for which this The General Conference of the International Labour Organisation,
Convention is in force undertakes to give effect to the following provisions. Having been convened at Geneva by the Governing Body of the International
Labour Office, and having met in its Thirty-second Session on 8 June 1949, and
Article 2
Having decided upon the adoption of certain proposals concerning the
Workers and employers, without distinction whatsoever, shall have the right to
application of the principles of the right to organise and to bargain collectively,
establish and, subject only to the rules of the organisation concerned, to join
which is the fourth item on the agenda of the session, and
organisations of their own choosing without previous authorisation.
Having determined that these proposals shall take the form of an international
Article 3 Convention,
1. Workers' and employers' organisations shall have the right to draw up their adopts this first day of July of the year one thousand nine hundred and forty-
constitutions and rules, to elect their representatives in full freedom, to nine the following Convention, which may be cited as the Right to Organise and
organise their administration and activities and to formulate their Collective Bargaining Convention, 1949:
programmes.
2. The public authorities shall refrain from any interference which would Article 1
restrict this right or impede the lawful exercise thereof. 1. Workers shall enjoy adequate protection against acts of anti-union
discrimination in respect of their employment.
Article 4 2. Such protection shall apply more particularly in respect of acts calculated
Workers' and employers' organisations shall not be liable to be dissolved or to:
suspended by administrative authority. (a) make the employment of a worker subject to the condition that he
shall not join a union or shall relinquish trade union membership;
Article 5 (b) cause the dismissal of or otherwise prejudice a worker by reason of
Workers' and employers' organisations shall have the right to establish and join union membership or because of participation in union activities
federations and confederations and any such organisation, federation or outside working hours or, with the consent of the employer, within
confederation shall have the right to affiliate with international organisations working hours.
of workers and employers.
Article 2
Article 6 1. Workers' and employers' organisations shall enjoy adequate protection
The provisions of Articles 2, 3 and 4 hereof apply to federations and against any acts of interference by each other or each other's agents or
confederations of workers' and employers' organisations. members in their establishment, functioning or administration.
2. In particular, acts which are designed to promote the establishment of
Article 7 workers' organisations under the domination of employers or employers'
The acquisition of legal personality by workers' and employers' organisations, organisations, or to support workers' organisations by financial or other
federations and confederations shall not be made subject to conditions of such means, with the object of placing such organisations under the control of
a character as to restrict the application of the provisions of Articles 2, 3 and 4 employers or employers' organisations, shall be deemed to constitute acts
hereof. of interference within the meaning of this Article.

Article 8 Article 3
1. In exercising the rights provided for in this Convention workers and Machinery appropriate to national conditions shall be established, where
employers and their respective organisations, like other persons or necessary, for the purpose of ensuring respect for the right to organise as
organised collectivities, shall respect the law of the land. defined in the preceding Articles.
2. The law of the land shall not be such as to impair, nor shall it be so applied
Article 4
as to impair, the guarantees provided for in this Convention.
Measures appropriate to national conditions shall be taken, where necessary,
to encourage and promote the full development and utilisation of machinery
Article 9
for voluntary negotiation between employers or employers' organisations and
1. The extent to which the guarantees provided for in this Convention shall workers' organisations, with a view to the regulation of terms and conditions of
apply to the armed forces and the police shall be determined by national employment by means of collective agreements.
laws or regulations.
2. In accordance with the principle set forth in paragraph 8 of Article 19 of the Article 5
Constitution of the International Labour Organisation the ratification of this 1. The extent to which the guarantees provided for in this Convention shall
Convention by any Member shall not be deemed to affect any existing law, apply to the armed forces and the police shall be determined by national
award, custom or agreement in virtue of which members of the armed laws or regulations.
forces or the police enjoy any right guaranteed by this Convention. 2. In accordance with the principle set forth in paragraph 8 of Article 19 of the
Constitution of the International Labour Organisation the ratification of this
Article 10 Convention by any Member shall not be deemed to affect any existing law,
In this Convention the term organisation means any organisation of workers or award, custom or agreement in virtue of which members of the armed
of employers for furthering and defending the interests of workers or of forces or the police enjoy any right guaranteed by this Convention.
employers.
Article 6
PART II. PROTECTION OF THE RIGHT TO ORGANISE This Convention does not deal with the position of public servants engaged in
Article 11 the administration of the State, nor shall it be construed as prejudicing their
Each Member of the International Labour Organisation for which this rights or status in any way.
Convention is in force undertakes to take all necessary and appropriate
measures to ensure that workers and employers may exercise freely the right Article III, Section 8 (1987 Constitution)
to organise. 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.

Article III, Section 6 (1935 Constitution)


The right to form associations or societies for purposes not contrary to law
shall not be abridged.

Article IV, Section 7 (1973 Constitution)


Same as 1935 provision above.

_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 9 79
B. Extent and Scope of Right || us laws || NATIONAL LABOR RELATIONS ACT (WAGNER ACT)
« »

Article 252 Notes:


Coverage and employees’ right to self-organization. All persons employed in - The Constitution protects the right to form, join, or assist a union.
commercial, industrial and agricultural enterprises and in religious, charitable,
Once registered, it is considered as a legitimate labor union endowed
medical, or educational institutions, whether operating for profit or not, shall
have the right to self-organization and to form, join, or assist labor
with the right and privileges granted by law to such an
organizations of their own choosing for purposes of collective bargaining. organization.10
Ambulant, intermittent and itinerant workers, self-employed people, rural - While unions have the right to draw up their constitutions and rules,
workers and those without any definite employers may form labor its members also have the responsibility to respect their own
organizations for their mutual aid and protection. constitution and rules as these form part of their contract of
membership defining their rights, privileges, and duties.11
Article 253
Right of employees in the public service. Employees of government US LAWS
corporations established under the Corporation Code shall have the right to
NATIONAL LABOR RELATIONS ACT (WAGNER ACT)
organize and to bargain collectively with their respective employers. All other
employees in the civil service shall have the right to form associations for US LABOR-MANAGEMENT RELATIONS ACT OF 1947 (TAFT-
purposes not contrary to law. HARTLEY ACT)
Article 255 PRE-LABOR CODE
Ineligibility of managerial employees to join any labor organization; right of
COMMONWEALTH ACT NO. 103
supervisory employees. Managerial employees are not eligible to join, assist or
form any labor organization. Supervisory employees shall not be eligible for INDUSTRIAL PEACE ACT (R.A. 875 OF 1953)
membership in a labor organization of the rank-and-file employees but may
join, assist or form separate labor organizations of their own.
B. Extent and Scope of Right
Article 219 (f)
Article 252
"Employee" includes any person in the employ of an employer. The term shall Coverage and employees’ right to self-organization. All persons employed in
not be limited to the employees of a particular employer, unless the Code so
commercial, industrial and agricultural enterprises and in religious, charitable,
explicitly states. It shall include any individual whose work has ceased as a
medical, or educational institutions, whether operating for profit or not, shall
result of or in connection with any current labor dispute or because of any have the right to self-organization and to form, join, or assist labor
unfair labor practice if he has not obtained any other substantially equivalent organizations of their own choosing for purposes of collective bargaining.
and regular employment.
Ambulant, intermittent and itinerant workers, self-employed people, rural
Book V, Rule II, Section 1 workers and those without any definite employers may form labor
organizations for their mutual aid and protection.
It is the policy of the State to promote the free and responsible exercise of the
right to self-organization through the establishment of a simplified Article 256
mechanism for the speedy registration of labor unions and worker’s Non-abridgment of right to self-organization. It shall be unlawful for any
associations, determination and representation status and resolution of inter person to restrain, coerce, discriminate against or unduly interfere with
or intra union and other labor relations disputes. Only legitimate or registered
employees and workers in their exercise of the right to self-organization. Such
labor unions shall have the right to represent their members for collective
right shall include the right to form, join, or assist labor organizations for the
bargaining and other purposes. Workers’ organizations shall have the right to purpose of collective bargaining through representatives of their own choosing
represent their members for purposes other than collective bargaining. and to engage in lawful concerted activities for the same purpose for their
Section 2 mutual aid and protection, subject to the provisions of Article 264 of this Code.
All persons employed in commercial, industrial and agricultural enterprises
including employees of GOCCs without original charter under the Corporation Notes:
Code, as well as employees of religious, charitable, medical or educational - Collective bargaining was instituted by the Industrial Peace Act that
institutions whether operating for profit or not, shall have the right to self- that entails mutual trust and confidence of union and management
organization and to form, join or assist labor unions for purpose of collective to achieve a just solution and industrial peace. Implicit in such a
bargaining: Provided, however, that supervisory employees shall not be eligible concept is the confidence that must be displayed by management in
for membership in a labor union of the rank-and-file employees but may the sense of responsibility of union officials to assure that the two
form, join or assist separate labor unions of their own. Managerial employees indispensable elements in industry and production could-work side
shall not be eligible to form, join, or assist any labor union for purposes of
by side, attending to the problems of each without neglecting the
collective bargaining.
common welfare that binds them together. Free trade unionism
Alien employees with valid working permits issued by the Department may
exercise the right to self-organization and join or assist labor unions for
entails that the union members are free to choose their own
purposes of collective bargaining if they are nationals of a country which leaders.12
grants the same or similar rights to Filipino workers as certified by the - The right of self-organization is granted by the constitution to
Department of Foreign Affairs, or which has ratified either ILO Convention No. workers regardless of their religious affiliation.13
87 and ILO Convention No. 98. - The right not to join is subsumed in the right to join a labor union.
For purposes of this section, any employee, whether employed for a definite The present rules do not bar the inclusion of “No Union” in
period or not, shall beginning on the first day of his/her service, be eligible for certification elections.14
membership in any labor organization.
All other workers, including ambulant, intermittent and other workers, the
self-employed, rural workers and those without any definite employers may C. Worker Qualification
form labor organizations for their mutual aid and protection and other Article 291 (c)
legitimate purposes except collective bargaining. Miscellaneous Provisions. 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.

10 S.S. VENTURES INTERNATIONAL V. S.S. VENTURES LABOR UNION (2008)


11 UST FACULTY UNION V. BITONIO (1999)
12 PAN-AMERICAN WORLD AIRWAYS V. PAN-AMERICAN EMPLOYEES

ASSOCIATION (1969)
13 KAPATIRAN SA MEAT AND CANNING DIVISION V. CALLEJA (1988)
14 REYES V. TRAJANO (1992)

_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 10 79
D. Covered Employees / Workers || all Employees || INDUSTRIAL PEACE ACT (R.A. 875 OF 1953)
« Note: »

D. Covered Employees / Workers purposes of collective bargaining provided that it complies with the
requisites provided by law on calling a certification election.15
Article III, Section 8 (1987 Constitution)
The right of the people, including those employed in the public and private GOVERNMENT CORPORATE EMPLOYEES
sectors, to form unions, associations, or societies for purposes not contrary to
Article IX-B, Section 2 (1) (1987 Constitution)
law shall not be abridged.
The civil service embraces all branches, subdivisions, instrumentalities, and
Book V, Rule II, Section 2 agencies of the Government, including government-owned or controlled
Who may join labor unions and workers' associations. All persons employed in corporations with original charters.
commercial, industrial and agricultural enterprises, including employees of
Section 2 (5)
government owned or controlled corporations without original charters
established under the Corporation Code, as well as employees of religious, The right to self-organization shall not be denied to government employees.
charitable, medical or educational institutions whether operating for profit or
E.O. 180
not, shall have the right to self-organization and to form, join or assist labor
unions for purposes of collective bargaining: Provided, however, that PROVIDING GUIDELINES FOR THE EXERCISE OF THE RIGHT TO ORGANIZE OF
supervisory employees shall not be eligible for membership in a labor union of GOVERNMENT EMPLOYEES, CREATING A PUBLIC SECTOR LABOR-
the rank-and-file employees but may form, join or assist separate labor MANAGEMENT COUNCIL, AND FOR OTHER PURPOSES
unions of their own. Managerial employees shall not be eligible to form, join or In accordance with the provisions of the 1987 Constitution, I, CORAZON C.
assist any labor unions for purposes of collective bargaining. AQUINO, President of the Philippines, do hereby order:
Alien employees with valid working permits issued by the Department may I. Coverage
exercise the right to self-organization and join or assist labor unions for Section 1. This Executive Order applies to all employees of all branches,
purposes of collective bargaining if they are nationals of a country which subdivisions, instrumentalities, and agencies, of the Government, including
grants the same or similar rights to Filipino workers, as certified by the government-owned or controlled corporations with original charters. For this
Department of Foreign Affairs, or which has ratified either ILO Convention No. purpose, employees, covered by this Executive Order shall be referred to as
87 and ILO Convention No. 98. "government employees".
For purposes of this section, any employee, whether employed for a definite Section 2. All government employees can form, join or assist employees'
period or not, shall beginning on the first day of his/her service, be eligible for organizations of their own choosing for the furtherance and protection of their
membership in any labor organization. interests. They can also form, in conjunction with appropriate government
All other workers, including ambulant, intermittent and other workers, the authorities, labor-management committees, works councils and other forms
self-employed, rural workers and those without any definite employers may of workers' participation schemes to achieve the same objectives.
form labor organizations for their mutual aid and protection and other Section 3. High-level employees whose functions are normally considered as
legitimate purposes except collective bargaining. policy-making or managerial or whose duties are of a highly confidential
nature shall not be eligible to join the organization of rank-and-file
ALL EMPLOYEES government employees.
Section 4. The Executive Order shall not apply to the members of the Armed
Article 252
Forces of the Philippines, including police officers, policemen, firemen and jail
Coverage and employees’ right to self-organization. All persons employed in
guards.
commercial, industrial and agricultural enterprises and in religious, charitable,
medical, or educational institutions, whether operating for profit or not, shall II. Protection of the Right to Organize
have the right to self-organization and to form, join, or assist labor Section 5. Government employees shall not be discriminated against in respect
organizations of their own choosing for purposes of collective bargaining. of their employment by reason of their membership in employees'
Ambulant, intermittent and itinerant workers, self-employed people, rural organizations or participation in the normal activities of their organization.
workers and those without any definite employers may form labor Their employment shall not be subject to the condition that they shall not join
organizations for their mutual aid and protection. or shall relinquish their membership in the employees' organizations.
Section 6. Government authorities shall not interfere in the establishment,
Article 219 (f) functioning or administration of government employees' organizations
"Employee" includes any person in the employ of an employer. The term shall through acts designed to place such organizations under the control of
not be limited to the employees of a particular employer, unless the Code so government authority.
explicitly states. It shall include any individual whose work has ceased as a III. Registration of Employees' Organization
result of or in connection with any current labor dispute or because of any
Section 7. Government employees' organizations shall register with the Civil
unfair labor practice if he has not obtained any other substantially equivalent
Service Commission and the Department of Labor and Employment. The
and regular employment.
application shall be filed with the Bureau of Labor Relations of the Department
Article 212 (m) which shall process the same in accordance with the provisions of the Labor
Code of the Philippines, as amended. Applications may also be filed with the
"Managerial employee" is one who is vested with the powers or prerogatives to
lay down and execute management policies and/or to hire, transfer, suspend, Regional Offices of the Department of Labor and Employment which shall
lay-off, recall, discharge, assign or discipline employees. Supervisory immediately transmit the said applications to the Bureau of Labor Relations
employees are those who, in the interest of the employer, effectively within three (3) days from receipt thereof.
recommend such managerial actions if the exercise of such authority is not Section 8. Upon approval of the application, a registration certificate be issued
merely routinary or clerical in nature but requires the use of independent to the organization recognizing it as a legitimate employees' organization with
judgment. All employees not falling within any of the above definitions are the right to represent its members and undertake activities to further and
considered rank-and-file employees for purposes of this Book. defend its interest. The corresponding certificates of registration shall be
jointly approved by the Chairman of the Civil Service Commission and
Book V, Rule I, Section 1 (xx) Secretary of Labor and Employment.
“Supervisory Employee” refers to an employee who, in the interest of the IV. Sole and Exclusive Employees' Representatives
employer, effectively recommends managerial actions and the exercise of Section 9. The appropriate organizational unit shall be the employers unit
such authority is not routinary or clerical but requires the use of independent consisting of rank-and-file employees unless circumstances otherwise
judgment. require.
Section 1 (nn) Section 10. The duly registered employees' organization having the support of
the majority of the employees in the appropriate organizational unit shall be
“Rank-and-File Employee” refers to an employee whose functions are neither
designated as the sole and exclusive representative of the employees.
managerial nor supervisory in nature.
Section 11. A duly registered employees' organization shall be accorded
Note: voluntary recognition upon a showing that no other employees' organization is
- Rank and file employees of non-profit medical institutions are now registered or is seeking registration, based on records of the Bureau of Labor
permitted to form, organize or join labor unions of their choice for
15 FEU-DR. NICANOR REYES MEDICAL FOUNDATION V. TRAJANO (1987)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 11 79
C. Excluded Employees/Workers || supervisory employees || INDUSTRIAL PEACE ACT (R.A. 875 OF 1953)
« Notes: »

Relations, and that the said organizations has the majority support of the Notes:
rank-and-file employees in the organizational unit. - Art. 245 LC clearly prohibits the supervisory employees to join the
Section 12. Where there are two or more duly registered employees' labor union of a rank-and-file employees to prevent conflict of
organizations in the appropriate organizational unit, the Bureau of Labor interest. A mixture of both kinds of employees in a labor union
Relations shall, upon petition, order the conduct of a certification election and cannot be legitimate, with no right to file for PCE. The rationale for
shall certify the winner as the exclusive representative of the rank-and-file the exclusion of supervisory employees is that they become the
employees in said organization unit.
alter ego of management in making and implementing decisions at
D. Terms and Conditions of Employment in Government Services
sub-managerial level. There is no mutuality of interest, which is a
Section 13. Terms and conditions of employment or improvements thereof, requisite of an appropriate bargaining unit.16
except those that are fixed by law, may be the subject of negotiations between
o (Note: this case is overturned by a subsequent amendment of
duly recognized employees' organizations and appropriate government
authorities. RA 9481 (2007) and Tagaytay Highlands case)
VI. Peaceful Concerted Activities and Strikes ALIENS
Section 14. The Civil Service laws and rules governing concerted activities and
Article 283
strikes in the government service shall be observed, subject to any legislation
that may be enacted by Congress. Prohibition against aliens; exceptions. All aliens, natural or juridical, as well
as foreign organizations are strictly prohibited from engaging directly or
VII. Public Sector Labor-Management Council indirectly in all forms of trade union activities without prejudice to normal
Section 15. A Public Sector Labor Management Council, hereinafter referred to contacts between Philippine labor unions and recognized international labor
as the Council, is hereby constituted to be composed of the following: centers: Provided, however, That aliens working in the country with valid
1) Chairman, Civil Service Commission Chairman permits issued by the Department of Labor and Employment, may exercise the
2) Secretary, Department of Labor and Employment Vice Chairman right to self-­-­‐ organization and join or assist labor organizations of their own
choosing for purposes of collective bargaining: Provided, further, That said
3) Secretary, Department of Finance Member
aliens are nationals of a country which grants the same or similar rights to
4) Secretary, Department of Justice Member Filipino workers.
5) Secretary, Department of Budget and Management Member
The Council shall implement and administer the provisions of this Executive Article 284
Order. For this purpose, the Council shall promulgate the necessary rules and "Trade union activities" shall mean:
regulations to implement this Executive Order. 1. organization, formation and administration of labor organization;
VIII. Settlement of Disputes 2. negotiation and administration of collective bargaining agreements;
Section 16. The Civil Service and labor laws and procedures, whenever 3. all forms of concerted union action;
applicable, shall be followed in the resolution of complaints, grievances and 4. organizing, managing, or assisting union conventions, meetings, rallies,
cases involving government employees. In case any dispute remains referenda, teach-ins, seminars, conferences and institutes;
unresolved after exhausting all the available remedies under existing laws and
5. any form of participation or involvement in representation proceedings,
procedures, the parties may jointly refer the dispute to the Council, for
representation elections, consent elections, union elections; and
appropriate action.
6. other activities or actions analogous to the foregoing.
Article 253
Right of employees in the public service. Employees of government SECURITY GUARDS
corporations established under the Corporation Code shall have the right to - The previous prohibition on the right of the security guards to join
organize and to bargain collectively with their respective employers. All other labor unions is removed by EO 111, therefore they are free to join a
employees in the civil service shall have the right to form associations for rank and file or supervisory union depending on their rank.17
purposes not contrary to law.

SUPERVISORY EMPLOYEES
C. Excluded Employees/Workers
1. Managerial Employees
Article 254
2. Government Employees
Right of supervisory employees. Supervisory employees shall not be eligible
3. Field Personnel
for membership in a labor organization of the rank-and-file employees but
4. Members of the family of the employer who are dependent on the
may join, assist or form separate labor organizations of their own. The rank
and file union and the supervisors’ union operating within the same latter for support
establishment may join the same federation or national union. 5. Domestic helpers
6. Persons in the personal service of another
Article 219 (m) 7. Workers who are paid by result (as determined by SOLE)
“Supervisory employees” are those who, in the interest of the employer,
effectively recommend such managerial actions if the exercise of such MANAGERIAL EMPLOYEES
authority is not merely routinary or clerical in nature but requires the use of Article 82
independent judgment. All employees not falling within any of the above
Coverage. The provisions of this Title shall apply to employees in all
definitions are considered rank-and-file employees for purposes of this Book.
establishments and undertakings whether for profit or not, but not to
Book V, Rule I, Section 1 (xx) government employees, managerial employees, field personnel, members of
the family of the employer who are dependent on him for support, domestic
“Supervisory Employee” refers to an employee who, in the interest of the
helpers, persons in the personal service of another, and workers who are paid
employer, effectively recommends managerial actions and the exercise of
by results as determined by the Secretary of Labor in appropriate regulations.
such authority is not routinary or clerical but requires the use of independent
As used herein, "managerial employees" refer to those whose primary duty
judgment.
consists of the management of the establishment in which they are employed
Section 1 (hh) or of a department or subdivision thereof, and to other officers or members of
"Managerial Employee" refers to an employee who is vested with powers or the managerial staff.
prerogatives to lay down and execute management policies or to hire, transfer,
Article 219 (m)
suspend, layoff, recall, discharge, assign or discipline employees.
“Managerial employee" is one who is vested with the powers or prerogatives to
Section 1 (nn) lay down and execute management policies and/or to hire, transfer, suspend,
“Rank-and-File Employee” refers to an employee whose functions are neither lay-off, recall, discharge, assign or discipline employees.
managerial nor supervisory in nature.
16 TOYOTA MOTOR PHIL CORP. V. TOYOTA LABOR UNION (1997)
17 MANILA ELECTRIC CO. V. SEC OF LABOR (1991)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 12 79
D. Party Protected || confidential employees || INDUSTRIAL PEACE ACT (R.A. 875 OF 1953)
« Notes: »

Article 254 Rationale for exclusion


Ineligibility of managerial employees to join any labor organization; - Confidential employees are excluded from the bargaining unit to
Managerial employees are not eligible to join, assist or form any labor avoiding a potential conflict of interest (CONFIDENTIAL RULE).23
organization. - By necessary implication, the prohibition of management employees
to join labor unions is applicable to confidential employees because
Article 255
they act “in the interest of” the employers. In collective bargaining,
Effect of Inclusion as Members of Employees Outside the Bargaining Unit.
these employees might jeopardize that interest which they are duty
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
bound to protect, and can also act as spies for either party.24
employees are automatically deemed removed from the list of membership of
WORKER/MEMBER OF COOPERATIVE
said union.
- Members of a cooperative are not allowed to form labor unions
Notes: because its members are also its owners.
- A managerial employee is one who is vested with powers or o However, there is nothing which prohibits its members to
prerogatives to lay down and execute management policies and/or withdraw their membership in pursuit of the primordial and
to hire, transfer, suspend, lay-off, recall, discharge, assign or constitutional right of self-organization.
discipline employees. Supervisory employees are those who, in the o Membership in coop is only trivial and insubstantial as it is only
interest of the employer, effectively recommend such managerial involves the right to vote during annual meetings.25
actions if the exercise of such authority is not merely routinary or
EMPLOYEES OF INTERNATIONAL ORGANIZATIONS
clerical in nature but requires the use of independent judgment. All
- The grant of immunity to international organizations and specialized
employees not falling within any of the above definitions are
agencies is a prerogative of the executive department which is
considered rank-and-file employees.18
conclusive upon the courts. Its purpose is to avoid danger of
- Designation of the employee as manager does not ipso facto make
partiality and interference from the host country in the internal
him as such but it should be reconciled with the actual job
workings of the organization.26
description of employee which determines the nature of
employment.19 NON-EMPLOYEES
Three types of managers: - Independent contractor negates the presence of employer-
1. TOP – overall management of organization and establishes policies employee relationship. Non-employees are not entitled to join labor
(i.e. CEO) unions for purposes of collective bargaining.27
2. MIDDLE – directs activities which implement the organization’s - Prof. Battad: They can still form labor union provided that they are
policies (i.e. plant managers) employees of the contractor. A labor union can be established in the
3. FIRST- LINE – directs the operating employees (i.e. supervisors) business of the contractor, and not the principal employer.
- The first two are managers per se with authority to devise,
implement and control strategic and operational policies, while the D. Party Protected
third are the supervisors who are tasked to ensure that the policies - The law allows competition between labor unions in a bargaining
are carried out by the rank and file. Managerial employees are unit. However, it shouldn't be forgotten that what is entitled to
prohibited to join labor unions to prevent conflict of interest as the constitutional protection is labor, or more specifically the working
union might not be assured of the loyalties of the former, and the men and women, not labor organizations. The latter are merely the
danger for the union to become company dominated. However instrumentalities through which their welfare may be promoted and
managerial employees can join associations for purposes not related fostered.28
to labor management.20

CONFIDENTIAL EMPLOYEES E. Non-Abridgement of Right and


Requisites of confidential employees: 21 Sanctions for Violation of Right
1. Employees who assist or act in a confidential capacity AND those Article 256
who formulate, determine, and effectuate management policies in Non-abridgment of right to self - organization. It shall be unlawful for any
the field of labor relations; person to restrain, coerce, discriminate against or unduly interfere with
2. Necessary access to confidential labor relations information; and employees and workers in their exercise of the right to self-­‐organization. Such
3. Information are related to matters of labor relations and not right shall include the right to form, join, or assist labor organizations for the
purpose of collective bargaining through representatives of their own choosing
incidental or related to the technical and internal business
and to engage in lawful concerted activities for the same purpose or for their
operations. mutual aid and protection, subject to the provisions of Article 264 of this Code.
Notes:
Article 258
- If the tasks of the employees are mostly routinary or clerical, they
Unfair labor practices of employers. It shall be unlawful for an employer to
are not confidential but are rank and file employees. The 2 requisites commit any of the following unfair labor practice:
of confidential employees are cumulative, and both must be for an
(a) To interfere with, restrain or coerce employees in the exercise of their
employee to be considered as such – that is, the confidential right to self-organization;
relationship must exist between the employee and his supervisor, (b) To require as a condition of employment that a person or an employee
and the supervisor must handle the prescribed responsibilities shall not join a labor organization or shall with-draw from one to which he
relating to labor relations.22 belongs;
(c) To contract out services or functions being performed by union members
when such will interfere with, restrain or coerce employees in the exercise
of their rights to self-organization;
(d) To initiate, dominate, assist or otherwise interfere with the formation or
18 AD GOTHONG MFG. CORP V. CONFESSOR (1999)
23
19 PICOP V. LAGUESMA (2000) Id.
20 UNITED PEPSI COLA V. LAGUESMA (1998) 24 PEPSI-COLA PRODUCTS V. SOLE (1999)
21 SAN MIGUEL CORP SUPERVISORS AND EXEMPT EMPLOYEES UNION V. 25 CENTRAL NEGROS ELECTRIC COOPERATIVE V. SOLE
LAGUESMA (1997) 26 INTERNATIONAL CATHOLIC IMMIGRATION COMMISSION V. CALLEJA
22 TUNAY NA PAGKAKAISA NG MANGGAGAWA SA ASIA BREWERY V. ASIA 27 SINGER SEWING MACHINE V. DRILON
BREWERY INC (2010) 28 MACTAN WORKERS UNION V. ABOITIZ (1972)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 13 79
E. Non-Abridgement of Right and Sanctions for Violation of Right || non-employees || INDUSTRIAL PEACE ACT (R.A. 875 OF 1953)
« Rationale for exclusion »

administration of any labor organization, including the giving of financial Article 286.
or other support to it or its organizers or supporters; Penalties.    
(e) To discriminate in regard to wages, hours of work and other terms and
(a) Any person violating any of the provisions of Article 264 of this Code shall
conditions of employment in order to encourage or discourage
be punished by a fine of not less than one thousand pesos (P1,000.00) nor
membership in any labor organization. Nothing in this Code or in any other
more than ten thousand pesos (P10,000.00) and/or imprisonment for not
law shall stop the parties from requiring membership in a recognized
less than three months nor more than three (3) years, or both such fine
collective bargaining agent as a condition for employment, except those
and imprisonment, at the discretion of the court. Prosecution under this
employees who are already members of another union at the time of the
provision shall preclude prosecution for the same act under the Revised
signing of the collective bargaining agreement. Employees of an
Penal Code, and vice versa.
appropriate bargaining unit who are not members of the recognized
(b) Upon the recommendation of the Minister of Labor and Employment and
collective bargaining agent may be assessed a reasonable fee equivalent
the Minister of National Defense, foreigners who violate the provisions of
to the dues and other fees paid by members of the recognized collective
this Title shall be subject to immediate and summary deportation by the
bargaining agent, if such non-­‐union members accept the benefits under
Commission on Immigration and Deportation and shall be permanently
the collective bargaining agreement: Provided, that the individual
barred from re-entering the country without the special permission of the
authorization required under Article 242, paragraph (o) of this Code shall
President of the Philippines
not apply to the non-­‐members of the recognized collective bargaining
agent; Book V, Rule XXII, Section 15
(f) To dismiss, discharge or otherwise prejudice or discriminate against an
Criminal Prosecution. The regular courts shall have jurisdiction over any
employee for having given or being about to give testimony under this
criminal action under Article 278 of the Labor Code, as amended, but subject to
Code;
the required clearance from the DOLE on cases arising out of or related to a
(g) To violate the duty to bargain collectively as prescribed by this Code;
labor dispute pursuant to the Ministry of Justice (now DOJ) Circular No. 15,
(h) To pay negotiation or attorney’s fees to the union or its officers or agents
series of 1982, and Circular No. 9, series of 1986.
as part of the settlement of any issue in collective bargaining or any other
dispute; or
(i) To violate a collective bargaining agreement.
The provisions of the preceding paragraph notwithstanding, only the officers
and agents of corporations, associations or partnerships who have actually
participated in, authorized or ratified unfair labor practices shall be criminally
liable.

Article 259
Unfair labor practices of labor organizations. It shall be unfair labor practice
for a labor organization, its officers, agents or representatives:
(a) To restrain or coerce employees in the exercise of their right to self-
organization. However, a labor organization shall have the right to
prescribe its own rules with respect to the acquisition or retention of
membership;
(b) To cause or attempt to cause an employer to discriminate against an
employee, including discrimination against an employee with respect to
whom membership in such organization has been denied or to terminate
an employee on any ground other than the usual terms and conditions
under which membership or continuation of membership is made available
to other members;
(c) To violate the duty, or refuse to bargain collectively with the employer,
provided it is the representative of the employees;
(d) To cause or attempt to cause an employer to pay or deliver or agree to pay
or deliver any money or other things of value, in the nature of an exaction,
for services which are not performed or not to be performed, including the
demand for fee for union negotiations;
(e) To ask for or accept negotiation or attorney’s fees from employers as part
of the settlement of any issue in collective bargaining or any other
dispute; or
(f) To violate a collective bargaining agreement.
The provisions of the preceding paragraph notwithstanding, only the officers,
members of governing boards, representatives or agents or members of labor
associations or organizations who have actually participated in, authorized or
ratified unfair labor practices shall be criminally liable.

Article 302
Penalties. Except as otherwise provided in this Code, or unless the acts
complained of hinge on a question of interpretation or implementation of
ambiguous provisions of an existing collective bargaining agreement, any
violation of the provisions of this Code declared to be unlawful or penal in
nature shall be punished with a fine of not less than One Thousand Pesos
(P1,000.00) nor more than Ten Thousand Pesos (P10,000.00) or imprisonment
of not less than three months nor more than three years, or both such fine and
imprisonment at the discretion of the court. In addition to such penalty, any
alien found guilty shall be summarily deported upon completion of service of
sentence. Any provision of law to the contrary notwithstanding, any criminal
offense punished in this Code, shall be under the concurrent jurisdiction of the
Municipal or City Courts and the Courts of First Instance.

Article 303
Who are liable when committed by other than natural person. If the offense
is committed by a corporation, trust, firm, partnership, association or any
other entity, the penalty shall be imposed upon the guilty officer or officers of
such corporation, trust, firm, partnership, association or entity.

_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 14 79
A. Policy || labor union || LEGITIMATE ORGANIZATION
« Note: »

Labor Organization
Book V, Rule I, Section 1 (j)
“Collective Bargaining Agreement” or “CBA” refers to the contract between a
legitimate labor union and the employer concerning wages, hours of work, and
all other terms and conditions of employment in a bargaining unit.
A. Policy
Article 218 A (b) LABOR UNION
Policy. To promote free trade unionism as an instrument for the enhancement LEGITIMATE ORGANIZATION
of democracy and the promotion of social justice and development;
COMPANY UNION
Article 218 A (c)
Policy. To foster the free and voluntary organization of a strong and united WORKERS ASSOCIATION
labor movement; LEGITIMATE WORKERS’ ASSOCIATION

Article 218 A (d) NATIONAL UNION / FEDERATION


Policy. To promote the enlightenment of workers concerning their rights and Book V, Rule I, Section 1 (kk)
obligations as union members and as employees
"National Union" or "Federation" refers to a group of legitimate labor unions in
Article 218 A (g) a private establishment organized for collective bargaining or for dealing with
employers concerning terms and conditions of employment for their member
Policy. To ensure the participation of workers in decision and policy-making
unions or for participating in the formulation of social and employment
processes affecting their rights, duties and welfare.
policies, standards and programs, registered with the Bureau in accordance
with Rule III, Section 2-B of these Rules.
B. Definition TRADE UNION CENTER
Book V, Rule I, Section 1 (cc)
Book V, Rule I, Section 1 (p) (old provision)
“Labor Organization” refers to any union or association of employees in the
A “Trade Union Center” is any group of registered national unions or
private sector which exists in whole or in part for the purposes of collective
federations organized for the mutual aid and protection of its members; for
bargaining, mutual aid, interest, cooperation, protection, or other lawful
assisting such members in collective bargaining; or for participating in the
purposes.
formulation of social and employment policies, standards, and programs, and
is duly registered with the DOLE in accordance with Rule III, Section 2 of the
Implementing Rules..
C. Categories of Labor Organizations and
Unions Note:
Article 219 (g) - A Trade Union Center is composed of registered National Unions or
"Labor organization" means any union or association of employees which exists Federations who are in turn composed of at least 10
in whole or in part for the purpose of collective bargaining or of dealing with Locals/Chapters. Only National Unions and Federations can create a
employers concerning terms and conditions of employment. Local/Chapter because there is no mention of a Trade Union Center
as being one of the labor organization allowed to make one
Article 219 (h)
(expression unius est exclusion alterius).29
"Legitimate labor organization" means any labor organization duly registered
with the Department of Labor and Employment, and includes any branch or
local thereof. C. Union Function and Rationale
- A union is an instrumentality where an individual worker who is
Article 219 (i)
helpless against a powerful employer, may achieve the goal of
"Company union" means any labor organization whose formation, function or
administration has been assisted by any act defined as unfair labor practice by
economic wellbeing through the use of concerted effort and
this Code. activity.30

Article 219 (j)


"Bargaining representative" means a legitimate labor organization or any
D. Regulation of Labor Organization
officer or agent of such organization whether or not employed by the
UNION REGISTRATION: PROCEDURE
employer.
REQUIREMENTS AND RATIONALE
Book V, Rule I, Section 1 (ee)
ILO Convention No. 98
"Legitimate Labor Organization" refers to any labor organization in the private
Rationale for Union Registration:
sector registered or reported with the Department in accordance with Rules III
and IV of these Rules. 1. For the protection of the labor organization against anti-union
discrimination; and
Book V, Rule I, Section 1 (ff) 2. For the Union’s entitlement to the rights and privileges granted by law to
“Legitimate Workers’ Association” refers to an association of workers legitimate labor organizations.
organized for mutual aid and protection of its members or for any legitimate
Article 7 (ICESCR)
purpose other than collective bargaining registered with the Department in
accordance with Rule III, Sections 2-C and 2-D of these Rules. The States Parties to the present Covenant recognize the right of everyone to
the enjoyment of just and favorable conditions of work which ensure, in
Book V, Rule I, Section 1 (zz) particular:
"Union" refers to any labor organization in the private sector organized for (c) Remuneration which provides all workers, as a minimum, with:
collective bargaining and for other legitimate purposes. i. Fair wages and equal remuneration for work of equal value without
distinction of any kind, in particular women being guaranteed
Book V, Rule I, Section 1 (ccc) conditions of work not inferior to those enjoyed by men, with equal
“Workers’ Association” refers to an association of workers organized for pay for equal work;
mutual aid and protection of its members or for any legitimate purpose other ii. A decent living for themselves and their families in accordance with
than collective bargaining. the provisions of the present Covenant;

Book V, Rule I, Section 1 (t)


“Exclusive Bargaining Representative” refers to a legitimate labor union duly 29 SAN MIGUEL EMPLOYEES UNION-PTGWO V. SAN MIGUEL PRODUCTS

recognized or certified as the sole and exclusive bargaining representative or EMPLOYEES UNION-PDMP (2007)
agent of all the employees in a bargaining unit. 30 GUIJARNO V. CIR (1973)

_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 15 79
D. Regulation of Labor Organization || union registration: Procedure || REQUIREMENTS AND RATIONALE
« Note: »

(d) Safe and healthy working conditions; (1) the name of the applicant labor union, its principal address, the name of
(e) Equal opportunity for everyone to be promoted in his employment to an its officers and their respective addresses, approximate number of
appropriate higher level, subject to no considerations other than those of employees in the bargaining unit where it seeks to operate, with a
seniority and competence; statement that is not reported as a chartered local of any federation or
(f) Rest, leisure and reasonable limitation of working hours and periodic national union;
holidays with pay, as well as remuneration for public holidays (2) the minutes of the organizational meeting(s) and the list of employees
who participated in the said meeting(s);
Article 8 (b) (ICESCR) (3) the name of all its members comprising at least 20% of the employees in
The right of trade unions to establish national federations or confederations the bargaining unit;
and the right of the latter to form or join international trade-union (4) the annual financial reports if the applicant has been in existence for one
organizations; or more years, unless it has not collected any amount from the members,
in which case a statement to this effect shall be included in the
Article 8 (c) (ICESCR) application;
The right of trade unions to function freely subject to no limitations other than (5) the applicant’s constitution and by-laws, minutes of its adoption or
those prescribed by law and which are necessary in a democratic society in the ratification, and the list of the members who participated in it. The list
interests of national security or public order or for the protection of the rights ratifying members shall be dispensed with where the constitution and by-
and freedoms of others; laws was ratified or adopted during the organizational meeting. In such a
case, the factual circumstances of the ratification shall be recorded in the
Article 239 minutes of the organizational meeting(s).
Requirements of registration. A federation, national union or industry or
trade union center or an independent union shall acquire legal personality and B. The application for registration of federations and national unions shall be
shall be entitled to the rights and privileges granted by law to legitimate labor accompanied by the following documents:
organizations upon issuance of the certificate of registration based on the (1) a statement indicating the name of the applicant labor union, , its principal
following requirements: address, the name of its officers and their respective addresses;
(a) Fifty pesos (P50.00) registration fee; (2) the minutes of the organizational meeting(s) and the list of employees
(b) The names of its officers, their addresses, the principal address of the who participated in the said meeting(s);
labor organization, the minutes of the organizational meetings and the list (3) the annual financial reports if the applicant has been in existence for one
of the workers who participated in such meetings; or more years, unless it has not collected any amount from the members,
(c) In case the applicant is an independent union, the names of all its in which case a statement to this effect shall be included in the
members comprising at least twenty percent (20%) of all the employees in application;
the bargaining unit where it seeks to operate; (4) the applicant union’s constitution and by-laws, minutes of its adoption or
(d) If the applicant union has been in existence for one or more years, copies ratification, and the list of the members who participated in it. The list
of its annual financial reports; and ratifying members shall be dispensed with where the constitution and by-
(e) Four copies of the constitution and by-laws of the applicant union, laws was ratified or adopted during the organizational meeting. In such a
minutes of its adoption or ratification, and the list of the members who case, the factual circumstances of the ratification shall be recorded in the
participated in it. minutes of the organizational meeting(s);
(5) the resolution of affiliation of at least 10 legitimate labor organizations,
Article 240 whether independent union or chartered locals, each of which must be a
Chartering and creation of a local chapter. A duly registered federation or duly certified or recognized bargaining agent in the establishment where it
national union may directly create a local chapter by issuing a charter seeks to operate; and
certificate indicating the establishment of the local chapter. The chapter shall (6) the name and addresses of the companies where the affiliates operate and
acquire legal personality only for purposes of filing a petition for certification the list of all the members in each company involved. Labor organizations
election from the date it was issued a charter certificate. operating within an identified industry may also apply for registration as a
The chapter shall be entitled to all other rights and privileges of a legitimate federation or a national union within the specified industry by submitting
labor organization only upon the submission of the following documents in to the Bureau the same set of documents.
addition to its charter certificate: Labor organizations operating within an identified industry may also apply for
(a) The names of the chapter’s officers, their addresses, and the principal registration as a federation or national union within the specified industry by
office of the chapter; and submitting to the Bureau the same set of documents.
(b) The chapter’s constitution and by-laws:
Provided, That where the chapter’s constitution and by-laws are the same as C. The application for registration of a workers’ association shall be
that of the federation or the national union, this fact shall be indicated accompanied by the following documents:
accordingly. The additional supporting requirements shall be certified under
oath by the secretary or treasurer of the chapter and attested by its president. (1) the name of the applicant association, its principal address, the name of
its officers and their respective addresses;
Article 241 (2) the minutes of the organizational meeting(s) and the list of employees
Action on application. The Bureau shall act on all applications for registration who participated in the said meeting(s);
within thirty (30) days from filing. All requisite documents and papers shall be (3) the financial reports if the applicant has been in existence for one or more
certified under oath by the secretary or the treasurer of the organization, as years, unless it has not collected any amount from the members, in which
the case may be, and attested to by its president. case a statement to this effect shall be included in the application;
(4) the applicant’s constitution and by-laws, minutes of its adoption or
Article 243 ratification, and the list of the members who participated in it. The list
Additional requirements for federations or national unions. Subject to ratifying members shall be dispensed with where the constitution and by-
Article 238, if the applicant for registration is a federation or a national union, laws was ratified or adopted during the organizational meeting. In such a
it shall, in addition to the requirements of the preceding Articles, submit the case, the factual circumstances of the ratification shall be recorded in the
following: minutes of the organizational meeting(s).
(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 D. Application for registration of a workers’ association operating in more than
or industry in which it operates, supporting the registration of such 1 region shall be accompanied, in addition to the requirements in the preceding
applicant federation or national union; and subsection, by a resolution of membership of each member association, duly
(b) The names and addresses of the companies where the locals or chapters approved by its board of directors.
operate and the list of all the members in each company involved.
E. A duly-registered federation or national union may directly create a
Book V, Rule III, Section 2 local/chapter by issuing a charter certificate indicating the establishment of
Requirements for Application. the local/chapter. The local/chapter shall acquire legal personality only for
the purposes of filing a petition for certification election from the date it was
A. The application for registration of an independent labor union shall be
issued a charter certificate.
accompanied by the following documents:

_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 16 79
D. Regulation of Labor Organization || union registration: Procedure || ACTION ON APPLICATION; DENIAL OF REGISTRATION
« Notes: »

The local/chapter shall be entitled to all other rights and privileges of a 10 days from receipt of such notice, on the ground of grave abuse of discretion
legitimate labor organization only upon the submission of the following or violation of these Rules.
documents in addition to its charter certificate:
Book V, Rule IV, Section 7
(a) the names of the local/chapter’s officers, their addresses, and the
principal office of the local/chapter, and Procedure on Appeal. The memorandum of appeal shall be filed with the
(b) the chapter’s constitution and by-laws Provided, that where the chapter’s Regional Office or the Bureau that issued the denial/return of notice. The
constitution and by-laws are the same as that of the federation or the memorandum of appeal together with the complete records of the application
national union, this fact shall be indicated accordingly for registration/notice of change of name, affiliation, merger and
consolidation, shall be transmitted by the Regional Office to the Bureau or by
The genuineness and due execution of the supporting requirements shall be
the Bureau to the Office of the Secretary, within 24 hours from receipt of the
certified under oath by the secretary/treasurer of the local/chapter and
memo of appeal. The Bureau or the Office of the Secretary shall decide the
attested to by its President.
appeal within 20 days from receipt of the records of the case.
Book V, Rule IV, Section 2
Payment of Registration Fee. A labor union and workers association shall be
EFFECT OF REGISTRATION; NON-REGISTRATION; ACQUISITION OF
issued a certificate of registration upon payment of the prescribed registration
fee. LEGAL PERSONALITY
Book V, Rule IV, Section 8
Notes: Effect of registration. The labor union or workers’ association shall be
- The registration requirements should be strictly complied with as to deemed registered and vested with legal personality on the date of issuance of
afford protection to the unsuspecting employees who may be lured its certificate of registration or certificate of creation of chartered local.
into joining unscrupulous or fly-by-night labor unions.31 Such legal personality may be questioned only through an independent
- Compliance with the rules must be strict so as to protect the labor petition for cancellation of union registration in accordance with Rule XIV of
and public against abuses, fraud or impostors who pose as these Rules, and not by way of collateral attack in petition for certification
organizers though not truly accredited as such. election proceedings under Rule VIII.
o However, the requirements for a local or chapter of a national
Notes:
union or federation are less than those for independent unions,
- A Local/Chapter acquires legal personality from the date of filing of
for the purpose of encouraging local unions to join federations for
the complete documents for registration and not from the issuance
greater power and support. However, these requirements should
of its certificate of registration because the latter is given after the
also be strictly complied with.32
evaluation of BLR/RD (30 days).
o The rationale for the rule is that the local/chapter relies in part
ACTION ON APPLICATION; DENIAL OF REGISTRATION on the legal personality of the federation or national union who in
Article 241 turn had already undergone evaluation and approval from the
Action on application. The Bureau shall act on all applications for registration BLR.33
within thirty (30) days from filing. All requisite documents and papers shall be
certified under oath by the secretary or the treasurer of the organization, as
RIGHTS OF LEGITIMATE LABOR ORGANIZATION
the case may be, and attested to by its president.
Article 250
Article 242 Rights of legitimate labor organizations. A legitimate labor organization
Denial of registration; appeal. The decision of the Labor Relations Division in shall have the right:
the regional office denying registration may be appealed by the applicant (a) To act as the representative of its members for the purpose of collective
union to the Bureau within ten (10) days from receipt of notice thereof. bargaining;
(b) To be certified as the exclusive representative of all the employees in an
Book V, Rule IV, Section 4
appropriate bargaining unit for purposes of collective bargaining;
Action on the Application/Notice. The Regional Office or the Bureau, as the
(c) To be furnished by the employer, upon written request, with its annual
case may be, shall act on all applications for registration or notice of change of audited financial statements, including the balance sheet and the profit
name, affiliation, merger and consolidation within 1 day from receipt thereof, and loss statement, within thirty (30) calendar days from the date of
either by: (a) approving the application and issuing the certificate of receipt of the request, after the union has been duly recognized by the
registration/acknowledging the notice/report; or (b) denying the
employer or certified as the sole and exclusive bargaining representative
application/notice for failure of the applicant to comply with the of the employees in the bargaining unit, or within sixty (60) calendar days
requirements for registration/notice. before the expiration of the existing collective bargaining agreement, or
Book V, Rule IV, Section 5 during the collective bargaining negotiation;
(d) To own property, real or personal, for the use and benefit of the labor
Denial of Application/Return of Notice. Where the documents supporting the
organization and its members;
application for registration or notice of change of name, affiliation, merger
(e) To sue and be sued in its registered name; and
and consolidation are incomplete or do not contain the required certification
(f) To undertake all other activities designed to benefit the organization and
and attestation, the Regional Office or the Bureau shall, within 1 day from
its members, including cooperative, housing, welfare and other projects
receipt for the application/notice, notify the applicant/labor organization
not contrary to law.
concerned in writing of the necessary requirements and to complete the same
Notwithstanding any provision of a general or special law to the contrary, the
within 30 days from receipt of notice. When the applicant/labor organization
income and the properties of legitimate labor organizations, including grants,
concerned fails to complete the requirements within the time prescribed, the
endowments, gifts, donations and contributions they may receive from
application for registration shall be denied or the notice of change of name,
fraternal and similar organizations, local or foreign, which are actually,
affiliation, merger and consolidation returned, without prejudice to filing a
directly and exclusively used for their lawful purposes, shall be free from
new application or notice.
taxes, duties and other assessments. The exemptions provided herein may be
Book V, Rule IV, Section 6 withdrawn only by a special law expressly repealing this provision.
Form of Denial of Application/Return of Notice; Appeal. The notice of the
Regional Office or the Bureau denying the application for Notes:
registration/returning the notice of change of name, affiliation, merger and
- The rights can only be exercised by a legitimate labor union vested
consolidation shall be in writing stating in clear terms the reasons for the
denial or return. The denial may be appealed to the Bureau if denial is made by with legal personality. There are two methods wherein one can be a
the Regional Office or to the Secretary if denial is made by the Bureau, within LLO:
o Acquiring a Certificate of Registration from BLR; and
31 SAN MIGUEL EMPLOYEES UNION-PTGWO V. SAN MIGUEL PRODUCTS
EMPLOYEES UNION-PDMP (2007)
32 PROGRESSIVE DEVELOPMENT CORP – PIZZA HUT V. LAGUESMA (1992) 33 SMC V. MANDAUE PACKING PRODUCTS PLANT (2005)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 17 79
D. Regulation of Labor Organization || cancellation of union certificate of registration || RIGHTS OF LEGITIMATE LABOR ORGANIZATION
« Notes: »

o Acquiring a Charter Certification from the mother union then the Book V, Rule XIV, Section 1
submission of the Charter Certificate and a copy of CBL to the Cancellation of Registration; Where to File. Subject to the requirements of
BLR.34 notice and due process, the registration of any legitimate independent labor
- Labor unions are authorized to represent their members for union, chartered local and workers' association may be cancelled by the
purposes of enforcing the provisions of a CBA. A union member who Regional Director upon the filing of an independent complaint or petition for
is already represented by his union will not be permitted to cancellation, or application by the organization itself for voluntary dissolution.
intervene in a case except when there is a suggestion of fraud, The petition for cancellation or application for voluntary dissolution shall be
collusion, or that the representative did not act in good faith for the filed in the regional office which issued its certificate of registration or
creation.
protection of the interests it represents.35
- Workers’ and employees’ organizations have the right to draw up In the case of federations, national or industry unions and trade union centers,
by the Bureau Director may cancel the registration upon the filing of a petition
their CBL and rules and to elect their representatives. The CBL
for cancellation or application for voluntary dissolution in the Bureau of Labor
expressly mandated the exhaustion of all remedies within the Relations.
organization before seeking intervention from the court.36
Book V, Rule XIV, Section 2
CANCELLATION OF UNION CERTIFICATE OF Who may file. Any party-in-interest may commence a petition for
REGISTRATION cancellation of registration, except in actions involving violations of Article
Article 244 241, which can only be commenced by members of the labor organization
concerned.
Cancellation of registration. The certificate of registration of any legitimate
labor organization, whether national or local, may be cancelled by the Bureau,
Notes:
after due hearing, only on the grounds specified in Article 239 hereof.
- The following are not grounds for cancellation of union registration:
Article 245 o Failure to comply with the reportorial requirement.
Effect of a petition for cancellation of registration. A petition for § The Regional Director exercises its discretion to treat the
cancellation of union registration shall not suspend the proceedings for documents submitted by the parties as substantial compliance
certification election nor shall it prevent the filing of a petition for if the purpose of the law is still met.
certification election. In case of cancellation, nothing herein shall restrict the § Members of the bargaining unit should not be deprived of a
right of the union to seek just and equitable remedies in the appropriate
bargaining agent because of the negligence of the union
courts.
officers submitting the required documents. 37
Article 246 o The inclusion of disqualified employees is not among the grounds
Grounds for cancellation of union registration. The following may constitute for cancellation unless it is due to misrepresentation, false
grounds for cancellation of union registration: statement or fraud.
(a) Misrepresentation, false statement or fraud in connection with the o Any mingling of supervisory and rank-and-file employees in a
adoption or ratification of the constitution and by-laws or amendments labor union.38
thereto, the minutes of ratification, and the list of members who took part - For fraud or misrepresentation be considered as grounds for
in the ratification; cancellation of registration, they must be of grave and compelling
(b) Misrepresentation, false statements or fraud in connection with the
nature so as vitiate the consent of majority of the union members.39
election of officers, minutes of the election of officers, and the list of
voters;
- Once a certificate of registration is issued to a labor union, its legal
(c) Voluntary dissolution by the members. personality cannot be subject to a collateral attack and can only be
questioned in an independent action for cancellation of certificate
Article 247 of registration.40
Voluntary cancellation of registration. The registration of a legitimate labor
organization may be cancelled by the organization itself: Provided, That at REPORTORIAL REQUIREMENTS
least two-thirds of its general membership votes, in a meeting duly called for Article 251
that purpose to dissolve the organization: Provided, further, That an
Reportorial requirements. The following are documents required to be
application to cancel registration is thereafter submitted by the board of the
submitted to the Bureau by the legitimate labor organization concerned:
organization, attested to by the president thereof.
(a) Its constitution and by-laws, or amendments thereto, the minutes of
Article 249 (j), 2nd par. ratification, and the list of members who took part in the ratification of
Rights and conditions of membership in a labor organization. – The following the constitution and by-laws within thirty (30) days from adoption or
are the rights and conditions of membership in a labor organization: ratification of the constitution and by-laws or amendments thereto;
(b) Its list of officers, minutes of the election of officers, and list of voters
Every income or revenue of the organization shall be evidenced by a record
within thirty (30) days from election;
showing its source, and every expenditure of its funds shall be evidenced by a
(c) Its annual financial report within thirty (30) days after the close of every
receipt from the person to whom the payment is made, which shall state the
fiscal year; and
date, place and purpose of such payment. Such record or receipt shall form
(d) Its list of members at least once a year or whenever required by the
part of the financial records of the organization. Any violation of the above
Bureau.
rights and conditions of membership shall be a ground for cancellation of
Failure to comply with the above requirements shall not be a ground for
union registration or expulsion of officers from office, whichever is
cancellation of union registration but shall subject the erring officers or
appropriate. At least thirty percent (30%) of the members of a union or any
members to suspension, expulsion from membership, or any appropriate
member or members specially concerned may report such violation to the
penalty.
Bureau. The Bureau shall have the power to hear and decide any reported
violation to mete the appropriate penalty. Criminal and civil liabilities arising Book V, Rule XV, Section 1
from violations of above rights and conditions of membership shall continue
National Registry. The Bureau shall be the national registry of labor
to be under the jurisdiction of ordinary courts.
organizations and collective bargaining agreements, as such it shall:
Book V, Rule I, Section 1 (g) (a) Maintain a national registry;
"Cancellation Proceedings" refer to the legal process leading to the revocation (b) Within the month of March following the end of the calendar year, publish
of the legitimate status of a union or workers' association. in the DOLE website the lists of labor organizations and federations which

37 HERITAGE HOTEL MANILA V. NUWHRAIN-HHMSC (2011)


38 REPUBLIC V. KAWASHIMA (2008)
34 SAN MIGUEL FOODS V. LAGUESMA (1996) 39 MARIWASA SIAM CERAMICS V. SOLE (2009)
35 ACEDERA V. INTERNATIONAL CONTAINER SERVICES (2003) 40 TAGAYTAY HIGHLANDS INTERNATION GOLF CLUB V. TAGAYTAY
36 MINETTE BAPTISTA V. ROSARIO VILLANUEVA (2013) HIGHLANDS EMPLOYEES UNION (2003)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 18 79
E. International Activities of Union: Prohibition and Regulation || nature of relationship || ADMISSION AND DISCIPLINE OF MEMBERS
« Notes: »

have complied with the reportorial requirements of Rule V and delinquent Article 285
labor organizations; Applicability to farm tenants and rural workers. The provisions of this Title
(c) Publish a list of officers of labor organizations with criminal conviction by pertaining to foreign organizations and activities shall be deemed applicable
final judgement; and likewise to all organizations of farm tenants, rural workers, and the like:
(d) Verify the existence of a registered labor organization with no registered Provided, That in appropriate cases, the Secretary of Agrarian Reform shall
collective bargaining agreement and which has not been complying with exercise the powers and responsibilities vested by this Title in the Secretary of
the reportorial requirement for at least 5 years. The verification shall Labor.
observe the following process:
1) The Regional Office shall make a report of the labor organization’s
non-compliance and submit the same to the Bureau for verification.
The Bureau shall send by registered mail with return card to the labor
F. Union-Member Relations
organization concerned, a notice for compliance indicating the ILO Convention No. 98
documents it failed to submit and the corresponding period in which Article 2
they were required, with notice to comply with the said reportorial (1) Workers' and employers' organisations shall enjoy adequate protection
requirements and to submit proof thereof to the Bureau within ten (10) against any acts of interference by each other or each other's agents or
days from receipt thereof. members in their establishment, functioning or administration.
Where no response is received by the Bureau within thirty (30) days (2) In particular, acts which are designed to promote the establishment of
from the service of the first notice, it shall send another notice for workers' organisations under the domination of employers or employers'
compliance, with warning that failure on its part to comply with the organisations, or to support workers' organisations by financial or other
reportorial requirements within the time specified shall cause its means, with the object of placing such organisations under the control of
publication as a non-existing labor organization in the DOLE website. employers or employers' organisations, shall be deemed to constitute acts
2) Where no response is received by the Bureau within thirty (30) days of interference within the meaning of this Article.
from service of the second notice, the Bureau shall publish the notice
of non-existence of the labor organization/s in the DOLE website Article 3
3) Where no response is received by the Bureau within thirty (30) days The State shall afford protection to labor, promote full employment, ensure
from date of publication, or where the Bureau has verified the equal work opportunities regardless of sex, race or creed and regulate the
dissolution of the labor organization, it shall delist the labor relations between workers and employers. The State shall assure the rights of
organization from the roster of legitimate labor organizations. workers to self-organization, collective bargaining, security of tenure, and
just and humane conditions of work.

E. International Activities of Union: NATURE OF RELATIONSHIP


Prohibition and Regulation - The nature of the relationship between the union and its members is
Article 283
fiduciary in nature which arises from the dependence of the
Prohibition against aliens; exceptions. All aliens, natural or juridical, as well
employee on the union, and from the comprehensive power vested
as foreign organizations are strictly prohibited from engaging directly or in it with respect to the individual. The union is but the agent of its
indirectly in all forms of trade union activities without prejudice to normal members to secure fair and just wages and good working
contacts between Philippine labor unions and recognized international labor conditions.41
centers: Provided, however, That aliens working in the country with valid
permits issued by the Department of Labor and Employment, may exercise the ISSUES AND CONCERNS
right to self-organization and join or assist labor organizations of their own ADMISSION AND DISCIPLINE OF MEMBERS
choosing for purposes of collective bargaining: Provided, further, That said
aliens are nationals of a country which grants the same or similar rights to Article 259 (a)
Filipino workers. Unfair labor practices of labor organizations.
(a) To restrain or coerce employees in the exercise of their right to self-
Article 284 organization. However, a labor organization shall have the right to prescribe
Regulation of foreign assistance. its own rules with respect to the acquisition or retention of membership;
(a) No foreign individual, organization or entity may give any donations, Article 249 (a)
grants or other forms of assistance, in cash or in kind, directly or
Rights and Conditions of Membership in a Labor Organization
indirectly, to any labor organization, group of workers or any auxiliary
No arbitrary or excessive initiation fees shall be required of the members of a
thereof, such as cooperatives, credit unions and institutions engaged in
legitimate labor organization nor shall arbitrary, excessive or oppressive fine
research, education or communication, in relation to trade union
and forfeiture be imposed;
activities, without prior permission by the Secretary of Labor.
Article 249 (e)
"Trade union activities" shall mean: Rights and Conditions of Membership in a Labor Organization
1. organization, formation and administration of labor organization; No labor organization shall knowingly admit as members or continue in
2. negotiation and administration of collective bargaining agreements; membership any individual who belongs to a subversive organization or who is
3. all forms of concerted union action; engaged directly or indirectly in any subversive activity;
4. organizing, managing, or assisting union conventions, meetings, rallies, Article 291 (c)
referenda, teach-ins, seminars, conferences and institutes; Miscellaneous Provisions. Any employee, whether employed for a definite
5. any form of participation or involvement in representation proceedings, period or not, shall, beginning on his first day of service, be considered as an
representation elections, consent elections, union elections; and employee for purposes of membership in any labor union.
6. other activities or actions analogous to the foregoing.
(b) This prohibition shall equally apply to foreign donations, grants or other Notes:
forms of assistance, in cash or in kind, given directly or indirectly to any - The union may discipline its members for acts or omissions contrary
employer or employer’s organization to support any activity or activities to its CBL. However, it must also follow the rules and procedures
affecting trade unions. outlined in the CBL in enforcing a penalty to the member.42
The Secretary of Labor shall promulgate rules and regulations to regulate and - A closed-shop provision is afflicted with public interest. The union
control the giving and receiving of such donations, grants, or other forms of cannot arbitrarily exclude qualified members and the latter’s
assistance, including the mandatory reporting of the amounts of the termination could not be considered valid when no reasonable
donations or grants, the specific recipients thereof, the projects or activities
proposed to be supported, and their duration.

41 HEIRS OF TEODOLO CRUZ V. CIR (1969)


42 BUGAY V. KAPISANAN NG MGA MANGGAGAWA SA MANILA (1962)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 19 79
F. Union-Member Relations || Issues and concerns || ELECTION OF OFFICERS: QUALIFICATIONS; MANNER OF ELECTION; TENURE AND COMPENSATION
« Notes: »

ground can be attributed to the union’s refusal to admit his Section 2


membership.43 Dispute over conduct of election of officers. Where the terms of the officers
- Inherent in every labor union is the right of self-preservation. When of a labor organization have expired and its officers failed or neglected to do
its members sow the seeds of dissension and strife within the union so call for an election of new officers, or where the labor organization's
and seek disintegration and destruction therein, they forfeit their constitution and by-laws do not provide for the manner by which the said
rights to remain as members of the union they seek to destroy.44 election can be called or conducted and the intervention of the Department is
necessary, at least thirty percent (30%) of the members of the labor
organization may file a petition for the conduct of election of their officers
ELECTION OF OFFICERS: QUALIFICATIONS; MANNER OF ELECTION; with the Regional Office that issued its certificate of registration or certificate
TENURE AND COMPENSATION of creation of chartered local. In the case of federations, national or industry
unions and trade union centers, the petition shall be filed with the Bureau or
Article 249 (c) the Regional Office but shall be heard and resolved by the Bureau. This rule
Rights and Conditions of Membership in a Labor Organization shall also apply where a conduct of election of officers is an alternative relief
The members shall directly elect their officers, including those of the national or necessary consequence of a petition for nullification of election of officers,
union or federation, to which they or their union is affiliated, by secret ballot impeachment/expulsion of officers, or such other petitions.
at intervals of five (5) years. No qualification requirements for candidacy to
any position shall be imposed other than membership in good standing in Section 3
subject labor organization. The secretary or any other responsible union Formal requirements and proceedings. The formal requirements, processes
officer shall furnish the Secretary of Labor and Employment with a list of the and periods of disposition of this petition stated in Rule XI shall be followed in
newly-elected officers, together with the appointive officers or agents who the determination of the merits of the petition and appeal.
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 Section 4
officers of the labor organization; Pre-election conference and conduct of election. The appointment of an
election officer and the procedures and periods in the conduct of the pre-
Article 249 (f) election conference and election proceedings prescribed in Rule IX shall also
Rights and Conditions of Membership in a Labor Organization apply in the conduct of a pre-election conference and election of officers in
No person who has been convicted of a crime involving moral turpitude shall any labor organization.
be eligible for election as a union officer or for appointment to any position in
the union; Section 5
Applicability of the provisions of the labor organization's constitution and
Article 249 (k) by-laws. Where the conduct of election of officers is ordered by the Med-
Rights and Conditions of Membership in a Labor Organization Arbiter, the Bureau or Office of the Secretary, the rules and regulations
The officers of any labor organization shall not be paid any compensation governing the filing of candidacies and conduct of election under the
other than the salaries and expenses due to their positions as specifically constitution and by-laws of the labor organization may be applied in the
provided for in its constitution and by-laws, or in a written resolution duly implementation of the decision, or new and additional rules may be adopted
authorized by a majority of all the members at a general membership meeting as agreed upon by the parties. The entire proceedings shall be presided by the
duly called for the purpose. The minutes of the meeting and the list of Election Officer from the Labor Relations Division of the Regional Office or the
participants and ballots cast shall be subject to inspection by the Secretary of Bureau. He/She shall act as the COMELEC referred to in the labor
Labor or his duly authorized representatives. Any irregularities in the approval organization's constitution and by-laws and obligate himself/herself to
of the resolutions shall be a ground for impeachment or expulsion from the comply with his/her mandate under the decision to be implemented and the
organization; constitution and by-laws.
Book V, Rule XII, Section 1 Notes:
Conduct of election of union officers; procedure in the absence of provisions - The election commission has the power to prescribe rules on the
in the constitution and by-laws. In the absence of any agreement among the
qualification and eligibility of candidates, and to facilitate the
members or any provision in the constitution and by-laws of a labor union or
workers' association, the following guidelines may be adopted in the election
conduct of elections. Its decision could not be interfered with absent
of officers: a showing of grave abuse of discretion.45
(a) within sixty (60) days before the expiration of the term of the incumbent - The court should not remove a union officer for acts done prior to
officers, the president of the labor organization shall constitute a his term as it would be tantamount to denial of the right of the
committee on election to be composed of at least three (3) members who members to elect their officers. When people have elected a man
are not running for any position in the election, provided that if there are into office, it must be assumed that they did this with knowledge of
identifiable parties within the labor organization, each party shall have his life and character, and that they disregarded or forgave his faults
equal representation in the committee; or misconduct. It is not for the court to overrule the will of the
(b) upon constitution, the members shall elect the chairman of the committee
people.46
from among themselves, and case of disagreement, the president shall
designate the chairman;
- The submission of the names of the employees in the BLR as
(c) within ten (10) days from its constitution, the committee shall, among qualified union members is not a condition sine qua non to enable
others, exercise the following powers and duties: the said members to vote in the election of union officers. There are
1) set the date, time and venue of the election; other sources of the names of qualified employees to vote such as
2) prescribe the rules on the qualification and eligibility of candidates the use of the applicable payroll period. Furthermore the act of
and voters; joining the election is a clear manifestation of their intention to join,
3) prepare and post the voters' list and the list of qualified candidates; and they can be considered as ipso facto members thereof.47
4) accredit the authorized representatives of the contending parties;
- The mere fact that they obtained the 2nd highest number of votes
5) supervise the actual conduct of the election and canvass the votes to
ensure the sanctity of the ballot; doesn’t mean that they’ll thereby be considered as the elected
6) keep minutes of the proceedings; officers if the true winners are disqualified.48
7) be the final arbiter of all election protests; - Union election is held to elect officers in accordance with the CBL
8) proclaim the winners; and and is done by the members of the union only while a certification
9) prescribe such other rules as may facilitate the orderly conduct of election is done through a secret ballot to determine whether the
election.

45 MONTANO V. VERCELES (2010)


46 KAPISANAN NG MANGGAGAWANG PINAGYAKAP V. TRAJANO (1985)
43 SALUNGA V. CIR (1967) 47 TANCINCO V. FERRER-CALLEJA (1988)
44 VILLAR V. INCIONG (1983) 48 MANALAD V. TRAJANO (1989)

_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 20 79
F. Union-Member Relations || Issues and concerns || MAJOR POLICY MATTER
« Note: »

members of a bargaining unit (both for members and non-members Department of Labor and Employment or from the date the same should have
of the union) want to be represented by a labor union.49 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,
MAJOR POLICY MATTER further, that failure of any labor organization to comply with the periodic
Article 249 (d) financial reports required by law and such rules and regulations promulgated
Rights and Conditions of Membership in a Labor Organization thereunder six (6) months after the effectivity of this Act shall automatically
The members shall determine by secret ballot, after due deliberation, any result in the cancellation of union registration of such labor organization;
question of major policy affecting the entire membership of the organization,
Article 249 (k)
unless the nature of the organization or force majeure renders such secret
ballot impractical, in which case, the board of directors of the organization Rights and Conditions of Membership in a Labor Organization
may make the decision in behalf of the general membership; The officers of any labor organization shall not be paid any compensation
other than the salaries and expenses due to their positions as specifically
Note: provided for in its constitution and by-laws, or in a written resolution duly
- A retainer’s contract of a union counsel is a major policy matter 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
affecting the entire membership.50
participants and ballots cast shall be subject to inspection by the Secretary of
Labor or his duly authorized representatives. Any irregularities in the approval
UNION FUNDS: PAYMENT OF ATTORNEY’S FEES AND SPECIAL of the resolutions shall be a ground for impeachment or expulsion from the
ASSESSMENTS organization;

Article 291 (a) Article 249 (l)


Miscellaneous Provisions. All unions are authorized to collect reasonable Rights and Conditions of Membership in a Labor Organization
membership fees, union dues, assessments and fines and other contributions The treasurer of any labor organization and every officer thereof who is
for labor education and research, mutual death and hospitalization benefits, responsible for the account of such organization or for the collection,
welfare fund, strike fund and credit and cooperative undertakings. management, disbursement, custody or control of the funds, moneys and
other properties of the organization, shall render to the organization and to its
Article 249 (a) members a true and correct account of all moneys received and paid by him
No arbitrary or excessive initiation fees shall be required of the members of a since he assumed office or since the last day on which he rendered such
legitimate labor organization nor shall arbitrary, excessive or oppressive fine account, and of all bonds, securities and other properties of the organization
and forfeiture be imposed; entrusted to his custody or under his control. The rendering of such account
shall be made:
Article 249 (b)
1. At least once a year within thirty (30) days after the close of its fiscal year;
Rights and Conditions of Membership in a Labor Organization 2. At such other times as may be required by a resolution of the majority of
The members shall be entitled to full and detailed reports from their officers the members of the organization; and
and representatives of all financial transactions as provided for in the 3. Upon vacating his office.
constitution and by-laws of the organization; The account shall be duly audited and verified by affidavit and a copy thereof
shall be furnished the Secretary of Labor.
Article 249 (c)
Rights and Conditions of Membership in a Labor Organization Article 249 (m)
The members shall directly elect their officers, including those of the national Rights and Conditions of Membership in a Labor Organization
union or federation, to which they or their union is affiliated, by secret ballot The books of accounts and other records of the financial activities of any labor
at intervals of five (5) years. No qualification requirements for candidacy to organization shall be open to inspection by any officer or member thereof
any position shall be imposed other than membership in good standing in during office hours;
subject labor organization. The secretary or any other responsible union
officer shall furnish the Secretary of Labor and Employment with a list of the Article 249 (n)
newly-elected officers, together with the appointive officers or agents who Rights and Conditions of Membership in a Labor Organization
are entrusted with the handling of funds, within thirty (30) calendar days after No special assessment or other extraordinary fees may be levied upon the
the election of officers or from the occurrence of any change in the list of members of a labor organization unless authorized by a written resolution of a
officers of the labor organization; 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
Article 249 (g)
meeting including the list of all members present, the votes cast, the purpose
Rights and Conditions of Membership in a Labor Organization of the special assessment or fees and the recipient of such assessment or fees.
No officer, agent or member of a labor organization shall collect any fees, The record shall be attested to by the president.
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 Article 249 (o)
by-laws; Rights and Conditions of Membership in a Labor Organization
Other than for mandatory activities under the Code, no special assessments,
Article 249 (h) attorney’s fees, negotiation fees or any other extraordinary fees may be
Rights and Conditions of Membership in a Labor Organization checked off from any amount due to an employee without an individual
Every payment of fees, dues or other contributions by a member shall be written authorization duly signed by the employee. The authorization should
evidenced by a receipt signed by the officer or agent making the collection and specifically state the amount, purpose and beneficiary of the deduction; and
entered into the record of the organization to be kept and maintained for the
purpose; Article 249 (p)
Rights and Conditions of Membership in a Labor Organization
Article 249 (j) It shall be the duty of any labor organization and its officers to inform its
Rights and Conditions of Membership in a Labor Organization members on the provisions of its constitution and by-laws, collective
Every income or revenue of the organization shall be evidenced by a record bargaining agreement, the prevailing labor relations system and all their rights
showing its source, and every expenditure of its funds shall be evidenced by a and obligations under existing labor laws. For this purpose, registered labor
receipt from the person to whom the payment is made, which shall state the organizations may assess reasonable dues to finance labor relations seminars
date, place and purpose of such payment. Such record or receipt shall form and other labor education activities.
part of the financial records of the organization. Any violation of the above rights and conditions of membership shall be a
Any action involving the funds of the organization shall prescribe after three ground for cancellation of union registration or expulsion of officers from
(3) years from the date of submission of the annual financial report to the office, whichever is appropriate. 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
49 UST FACULTY UNION V. BITONIO (1999) any reported violation to mete the appropriate penalty. Criminal and civil
50 HALILI V. CIR (1985) liabilities arising from violations of above rights and conditions of membership
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 21 79
F. Union-Member Relations || Issues and concerns || UNION FUNDS: PAYMENT OF ATTORNEY’S FEES AND SPECIAL ASSESSMENTS
« Note: »

shall continue to be under the jurisdiction of ordinary courts. determine and obtain the following:
(a) sources of funds covered by the audit;
Article 228 (b)
(b) the banks and financial institutions where the labor organization
Appearances and Fees. No attorney’s fees, negotiation fees or similar charges maintains its account;
of any kind arising from any collective bargaining agreement shall be imposed (c) union books of accounts and financial statements;
on any individual member of the contracting union: Provided, however, That (d) disbursement vouchers with supporting receipts, invoices and other
attorney’s fees may be charged against union funds in an amount to be agreed documents;
upon by the parties. Any contract, agreement or arrangement of any sort to (e) income and revenue receipts;
the contrary shall be null and void. (f) cash books;
(g) minutes of general membership meeting and board meetings;
Article 288
(h) other relevant matters and documents.
Visitorial Power. The Secretary of Labor and Employment or his duly The first Pre-audit conference shall be scheduled within ten (10) days from
authorized representative is hereby empowered to inquire into the financial receipt by the Audit Examiner of the decision granting the conduct of an audit.
activities of legitimate labor organizations upon the filing of a complaint
under oath and duly supported by the written consent of at least twenty Section 8
percent (20%) of the total membership of the labor organization concerned Issuance of subpoena. The Regional Director may compel any party to appear
and to examine their books of accounts and other records to determine or bring the required financial documents in a conference or hearing through
compliance or non-compliance with the law and to prosecute any violations of the issuance of a subpoena ad testificandum or subpoena duces tecum.
the law and the union constitution and by-laws: Provided, That such inquiry or He/She may also require the employer concerned to issue certifications of
examination shall not be conducted during the sixty (60)-day freedom period union dues and other assessments remitted to the union during the period of
nor within the thirty (30) days immediately preceding the date of election of audit.
union officials.
Section 9
Book V, Rule XIII, Section 1
Conduct of audit examination. Where book of accounts are submitted by the
Right of union to collect dues and agency fees. The incumbent bargaining parties, the Audit Examiner shall:
agent shall continue to be entitled to check-off and collect dues and agency
(a) examine the transactions reflected in the disbursement vouchers;
fees despite the pendency of a representation case, other inter/intra-union
(b) determine the validity of the supporting documents attached to the
disputes or related labor relations disputes.
vouchers consistent with the union's constitution and by-laws, relevant
Section 2 resolutions of the union and the Labor Code;
(c) trace recording and posting in the disbursement book;
Visitorial power under Article 274. The Regional or Bureau Director may
(d) record observations or findings of all financial transactions.
inquire into the financial activities of any legitimate labor organization and
examine their books of accounts and other records to determine compliance Where no book of accounts are maintained by the officers of the labor
with the law and the organization's constitution and by-laws. Such organization, the Audit Examiner shall:
examination shall be made upon the filing of a request or complaint for the (a) examine the transactions reflected in the disbursement vouchers;
conduct of an accounts examination by any member of the labor organization, (b) determine the validity of the supporting documents attached to the
supported by the written consent of at least twenty (20%) percent of its total vouchers consistent with the labor organization's constitution and by-
membership. laws, relevant board resolutions, and the Labor Code;
(c) prepare working papers or worksheet/s;
Section 3 (d) record and post all financial transactions reflected in the cash vouchers in
Where to file. A request for examination of books of accounts of independent the working papers or worksheet/s; and
labor unions, chartered locals and workers associations pursuant to Article (e) record observations or findings of all financial transactions.
274 shall be filed with the Regional Office that issued its certificate of The Audit Examiner shall conduct an inventory of all physical assets acquired
registration or certificate of creation of chartered local. A request for by the labor organization, if any, and on the basis of his/her findings prepare
examination of books of accounts of federations or national unions and trade his/her audited financial report or statement reflecting the true and correct
union centers pursuant to Article 274 shall be filed with the Bureau. Such financial accounts and balances of the labor organization with relevant
request or complaint, in the absence of allegations pertaining to a violation of annexes attached.
Article 241, shall not be treated as an intra-union dispute and the
appointment of an Audit Examiner by the Regional or Bureau Director shall Section 10
not be appealable. Period of audit. The Audit Examiner shall have sixty (60) days from the date of
first preaudit conference within which to complete the conduct of audit,
Section 4 unless the volume of financial records, the period covered by the audit and
Actions arising from Article 241. Any complaint or petition with allegations of other circumstances warrant the extension thereof. In such a case, the Audit
mishandling, misappropriation or non-accounting of funds in violation of Examiner shall notify the Med-Arbiter or the Bureau Director, as the case may
Article 241 shall be treated as an intra-union dispute. It shall be heard and be, of such fact at least ten (10) days before the expiration of the sixty (60) day
resolved by the Med-Arbiter pursuant to the provisions of Rule XI. period.
Section 5 Section 11
Prescription. The complaint or petition for audit or examination of funds and Audit Report. The Audit Examiner shall make a report of his/her findings to
book of accounts shall prescribe within three (3) years from the date of the parties involved and the same shall include the following:
submission of the annual financial report to the Department or from the date (a) name of the labor organization;
the same should have been submitted as required by law, whichever comes (b) name of complainant(s) or petitioner(s) and respondent(s);
earlier. (c) name of officers of the labor organization during the period covered by
the audit report;
Section 6
(d) scope of the audit;
Decision. A decision granting the conduct of audit shall include the (e) list of documents examined;
appointment of the Audit Examiner and a directive upon him/her to submit (f) audit methods and procedures adopted; and
his/her report and recommendations within ten (10) days from termination of (g) findings and recommendations.
audit. The decision granting the conduct of audit is interlocutory and shall not
be appealable. The decision denying or dismissing the complaint or petition for Section 12
audit may be appealed within ten (10) days from receipt thereof pursuant to Completion of audit. A copy of the audit report shall be forwarded by the
the provisions prescribed in Rule XI. Audit Examiner to the Med-Arbiter or the Bureau Director, as the case may be,
within ten (10) days from termination of the audit, together with the entire
Section 7
records of the case and all documents relative to the conduct of the audit.
Pre-audit conference. Within twenty-four (24) hours from receipt of the
decision granting the conduct of audit, the Regional Director shall summon the Section 13
parties to a Pre-audit conference conducted by the Audit Examiner to Decision after audit. The Med-Arbiter or the Bureau Director shall render a

_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 22 79
F. Union-Member Relations || Issues and concerns || MANDATORY ACTIVITY
« Special assessments and extraordinary fees »

decision within twenty (20) days from receipt of the audit report. All issues MARIÑO V GAMILLA (2009)
raised by the parties during the conduct of the audit shall be resolved by the THE LABOR CODE ONLY ALLOWS DEDUCTIONS FOR
Med-Arbiter. The decision shall be released in the same manner prescribed in ATTORNEY’S FEES AND SPECIAL ASSESSMENTS FROM
Section 15, Rule XI. When warranted, the Med-Arbiter or Bureau Director shall UNION FUNDS; HENCE, NO DEDUCTION COULD BE MADE
order the restitution of union funds by the responsible officer(s) in the same
FROM THE ECONOMIC PACKAGES
decision.
Under a new CBA, a MOA was entered into by UST and the Union
Section 14 where an additional 42M economic package from the tuition fee
Appeal. Appeal from the decision of the Med-Arbiter denying the conduct of F:
increase was to be given the union. Attorney/Agency Fees were
audit and from the results of the audit may be filed by any of the parties with deducted from such amount, which was the subject of the case.
the Bureau. Decisions rendered by the Bureau after the conduct of audit in the I: WON such fees may be deducted from the economic package
exercise of its original jurisdiction may be appealed to the Office of the NO, as they do not form part of union funds. Under the law, 70% of
Secretary. Both shall be resolved in accordance with the provisions of Section
R: tuition fee increases will be allotted to academic and non-academic
16, Rule XI.
personnel, therefore not union funds,
Section 15
Period of inquiry or examination. No complaint for inquiry or examination of MANDATORY ACTIVITY
the financial and book of accounts as well as other records of any legitimate
Article 249 (o)
labor organization shall be entertained during the sixty (60) day freedom
period or within thirty (30) days immediately preceding the date of election of Rights and Conditions of Membership in a Labor Organization
union officers. Any complaint or petition so filed shall be dismissed. Other than for mandatory activities under the Code, no special assessments,
attorney’s fees, negotiation fees or any other extraordinary fees may be
Special assessments and extraordinary fees checked off from any amount due to an employee without an individual
- May be LEVIED upon the members after being authorized in a written authorization duly signed by the employee. The authorization should
specifically state the amount, purpose and beneficiary of the deduction
written resolution (which must be attested to by the President)
- For CHECK-OFF, this requires the members individual written Notes:
authorization (signed by him) - It is a judicial process of settling disputes laid down by the law.54
o It assures a Union’s continuous funding. It’s primarily for the o An amicable settlement entered into by the mgt. & the union
benefit of the Union and only indirectly for the individual EEs.51 cannot be considered as a mandatory activity under the LC.
o Must include the ff: o Placement of re-negotiations for a CBA under compulsory
§ Amount process does NOT make it a “mandatory activity”55
§ Purpose - No written authorization by the EE is required
§ Beneficiary of the deduction
Requirements of a Valid Assessment52 UNION INFORMATION
1. Authorization by a written resolution of the majority of all members Article 249 (p)
at the general membership meeting called for that purpose It shall be the duty of any labor organization and its officers to inform its
2. Secretary’s record of minutes of such meeting members on the provisions of its constitution and by-laws, collective
3. Individual written authorization for check-off duly signed by the bargaining agreement, the prevailing labor relations system and all their
employees concerned. rights and obligations under existing labor laws.

Attorney’s Fees / Negotiation Fees / Similar charges


- Must be charged against union funds in an amount agreed to by the CCLU-NLU V CONTINENTAL CEMENT (1990)
parties DISMISSAL FROM THE SERVICE IS A JUST PENALTY FOR
o Any agreement to the contrary (like charging to union members) OFFICERS’ MISINFORMATION OF THEIR MEMBERS AND
shall be null and void THEIR LEADING INTO AN ILLEGAL STRIKE

Different types of Attorney’s Fees 53 The NLRC decided in favor of the petitioner with regard to money
ORDINARY EXTRA-ORDINARY claims. Instead of filing for a writ of execution, they staged a strike
Reasonable compensation paid to Indemnity for damages ordered F: to enforce such decision. The company subsequently terminated the
officers of the union and suspended the employees who did not heed
a lawyer for legal services by the court to be paid by the
the order of the NLRC to return to work.
rendered losing party to the winning party
I: WON such penalty is proper
Agreed upon by the parties Awarded by the Court
YES, as they violated Art. 249 (p). The Court held that the strike was
Payable to the lawyer Payable to the client illegal, as the company was part of the cement industry (a vital
Not limited (freedom to contract) Limited by Art. 111 to 10% industry which PD 823 protects) and bec. the issue behind the strike
R: was not a strikeable ground (issue was execution of award, and not
about unresolved economic issues). Bec. of the failure of the officers
to properly inform its members of the law and for still pushing for an
illegal strike, it was just proper to terminate their employment.

ENFORCEMENT AND REMEDIES; PROCEDURE AND SANCTIONS


Article 291, last paragraph
Miscellaneous Provisions. Despite the expiration of the applicable mandatory
period, the aforesaid officials shall, without prejudice to any liability which
may have been incurred as a consequence thereof, see to it that the case or
matter shall be decided or resolved without any further delay.

51 GABRIEL V SOLE (2000)


52
Id. 54 VENGCO V TRAJANO (1989)
53 KAISAHAN V MANILA WATER (2011) 55 GALVATORES V TRAJANO (1986)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 23 79
G. Union Chartering / Affiliation: Local and Parent Union Relations || Issues and concerns || ENFORCEMENT AND REMEDIES; PROCEDURE AND SANCTIONS
« Notes: »

Book V, Rule XIV, Section 1 G. Union Chartering / Affiliation: Local


Cancellation of Registration; Where to File. Subject to the requirements of
notice and due process, the registration of any legitimate independent labor
and Parent Union Relations
union, chartered local and workers' association may be cancelled by the ILO Convention No. 87
Regional Director upon the filing of an independent complaint or petition for Article 5
cancellation, or application by the organization itself for voluntary Workers' and employers' organisations shall have the right to establish and
dissolution. join federations and confederations and any such organisation, federation or
The petition for cancellation or application for voluntary dissolution shall be confederation shall have the right to affiliate with international organisations
filed in the regional office which issued its certificate of registration or of workers and employers.
creation.
Book V, Rule III, Section 1
In the case of federations, national or industry unions and trade union
Where to file. Applications for registration of independent labor unions,
centers, by the Bureau Director may cancel the registration upon the filing of
chartered locals, workers' associations shall be filed with the Regional Office
a petition for cancellation or application for voluntary dissolution in the
where the applicant principally operates. It shall be processed by the Labor
Bureau of Labor Relations.
Relations Division at the Regional Office in accordance with Sections 2-A, 2-
Section 2 C, and 2-E of this Rule.
Who may file. Any party-in-interest may commence a petition for Applications for registration of federations, national unions or workers'
cancellation of registration, except in actions involving violations of Article associations operating in more than one region shall be filed with the Bureau
241, which can only be commenced by members of the labor organization or the Regional Offices, but shall be processed by the Bureau in accordance
concerned. with Sections 2-B and 2-D of this Rule.

Section 3 Section 3
Grounds for cancellation. The following shall constitute grounds for Notice of change of name of labor organizations; Where to file. The notice
cancellation of registration of labor organizations: for change of name of a registered labor organization shall be filed with the
Bureau or the Regional Office where the concerned labor organization's
(a) misrepresentation, false statement or fraud in connection with the
certificate of registration or certificate of creation of a chartered local was
adoption or ratification of the constitution and by-laws or amendments
issued.
thereto, the minutes of ratification, the list of members who took part in
the ratification of the constitution and by-laws or amendments thereto, Section 4
the minutes of ratification, the list of members who took part in the
Requirements for notice of change of name. The notice for change of name
ratification;
of a labor organization shall be accompanied by the following documents:
(b) misrepresentation, false statements or fraud in connection with the
election of officers, minutes of the election of officers, the list of voters, (a) proof of approval or ratification of change of name; and
(c) voluntary dissolution by the members (b) the amended constitution and by-laws.

Section 4 Section 5
Voluntary Cancellation of Registration; How made. A legitimate labor Certificate of Registration/Certificate of Creation of Chartered Local for
organization may cancel its registration provided at least two thirds (2/3) of change of name. The certificate of registration and the certificate of creation
its general membership votes to dissolve the organization in a meeting duly of a chartered local issued to the labor organization for change of name shall
called for that purpose and an application to cancel its registration is bear the same registration number as the original certificate issued in its
thereafter submitted by the board of the organization to the regional/bureau favor and shall indicate the following:
director, as the case may be. The application shall be attested to by the (a) the new name of the labor organization;
President of the organization. (b) its former name;
(c) its office or business address; and
Section 5 (d) the date when the labor organization acquired legitimate personality as
Action on the Petition/Application. The petition/application shall be acted stated in its original certificate of registration/certificate of creation of
upon by the Bureau/Regional Director, as the case may be. In case of a chartered local.
petition for cancellation of registration, the formal requirements, processes
and periods of disposition stated in Rule XI shall be followed in the Section 6
determination of the merits of the petition. Report of Affiliation with federations or national unions; Where to file. The
report of affiliation of an independently registered labor union with a
Section 6 federation or national union shall be filed with the Regional Office that issued
Prohibited grounds for cancellation of registration. The inclusion as union its certificate of registration.
members of employees who are outside the bargaining unit shall not be a
ground to cancel the union registration. The ineligible employees are Section 7
automatically deemed removed from the list of membership of the union. Requirements of affiliation. The report of affiliation of independently
The affiliation of the rank-and-file and supervisory unions within the same registered labor unions with a federation or national union shall be
establishment to the same federation or national union shall not be a ground accompanied by the following documents:
to cancel the registration of either union. (a) resolution of the labor union's board of directors approving the
affiliation;
(b) minutes of the general membership meeting approving the affiliation;
DUYAG V INCIONG (1980) (c) the total number of members comprising the labor union and the names
EVEN WITHOUT SUBMITTING THE MATTER TO UNION of members who approved the affiliation;
MEMBERS THE BLR CAN REMOVE ERRING OFFICERS. (d) the certificate of affiliation issued by the federation in favor of the
independently registered labor union; and
Members were charged their union officers with several violations of (e) written notice to the employer concerned if the affiliating union is the
their CBL and the LC. MA ordered their removal and also ordered the incumbent bargaining agent.
F:
reimbursement of illegally collected amounts. BLR reversed the
decision because such matters should be left to the members Section 8
I: WON the BLR may remove the erring officers? Notice of Merger/Consolidation of labor organizations; Where to file.
YES. Any violation of the rights and conditions of membership as Notice of merger or consolidation of independent labor unions, chartered
enumerated in paragraphs (a) to (p) of Article 249, The labor officials locals and workers' associations shall be filed with and recorded by the
should not hesitate to enforcement strictly the law and regulations Regional Office that issued the certificate of registration/certificate of
R: governing trade unions even if that course of action would curtail the creation of chartered local of either the merging or consolidating labor
so-called union autonomy and freedom from government organization. Notice of merger or consolidation of federations or national
interference shall be a ground for cancellation of union registration unions shall be filed with and recorded by the Bureau.
or expulsion of officer from office, whichever is appropriate.

_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 24 79
G. Union Chartering / Affiliation: Local and Parent Union Relations || purpose and nature of relations || CHARTERED LOCAL
« Note »

Section 9 AFFILIATE
Requirements of notice of merger. The notice of merger of labor Book V, Rule I, Section 1 (a)
organizations shall be accompanied by the following documents: "Affiliate" refers to an independent union affiliated with a federation,
(a) the minutes of merger convention or general membership meeting(s) of national union or a chartered local which was subsequently granted
all the merging labor organizations, with the list of their respective independent registration but did not disaffiliate from its federation, reported
members who approved the same; and to the Regional Office and the Bureau in accordance with Rule III, Sections 6
(b) the amended constitution and by-laws and minutes of its ratification, and 7 of these Rules.
unless ratification transpired in the merger convention, which fact shall
be indicated accordingly. Section 1 (w)
"Independent Union" refers to a labor organization operating at the enterprise
Section 10 level that acquired legal personality through independent registration under
Certificate of Registration. The certificate of registration issued to merged Article 234 of the Labor Code and Rule III, Section 2-A of these Rules.
labor organizations shall bear the registration number of one of the merging
labor organizations as agreed upon by the parties to the merger. Book V, Rule III, Section 7
The certificate of registration shall indicate the following: Requirements of affiliation. The report of affiliation of independently
(a) the new name of the merged labor organization; registered labor unions with a federation or national union shall be
(b) the fact that it is a merger of two or more labor organizations; accompanied by the following documents:
(c) the name of the labor organizations that were merged; (a) resolution of the labor union's board of directors approving the
(d) its office or business address; and affiliation;
(e) the date when each of the merging labor organizations acquired (b) minutes of the general membership meeting approving the affiliation;
legitimate personality as stated in their respective original certificate of (c) the total number of members comprising the labor union and the names
registration. of members who approved the affiliation;
(d) the certificate of affiliation issued by the federation in favor of the
Section 11 independently registered labor union; and
Requirements of notice of consolidation. The notice of consolidation of (e) written notice to the employer concerned if the affiliating union is the
labor organizations shall be accompanied by the following documents: incumbent bargaining agent.
(a) the minutes of consolidation convention of all the consolidating labor
organizations, with the list of their respective members who approved
the same; and NATIONAL UNION / FEDERATION
(b) the amended constitution and by-laws, minutes of its ratification
Relationship between National Union/Federation and its
transpired in the consolidation convention or in the same general
membership meeting(s), which fact shall be indicated accordingly.
Charter/Affiliate
- The relationship between a mother union/federation and a local
Section 12 union is that the mother union is an agent acting for and in behalf of
Certificate of Registration. The certificate of registration issued to a its affiliate/charter58
consolidated labor organization shall bear the registration number of one of o The mother union is still a mere agent and the local is the
the consolidating labor organizations as agreed upon by the parties to the principal, notwithstanding the failure of the local union to comply
consolidation. with the procedural requirements that would make it a
The certificate of registration shall indicate the following: Legitimate Labor Organization.
(a) the new name of the consolidated labor organization; - A union affiliated with a national union maintains a separate and
(b) the fact that it is a consolidation of two or more labor organizations; distinct personality from the latter, and absent a showing that it is
(c) the name of the labor organizations that were consolidated; merely an alter ego of said national union, may exercise the rights
(d) its office or business address; and
and duties of a legitimate labor organization on its own.59
(e) the date when each of the consolidating labor organizations acquired
legitimate personality as stated in their respective original certificates of
registration. SUPERVISOR / RANK AND FILE UNION AFFILIATION
Article 254
PURPOSE AND NATURE OF RELATIONS56 Right of supervisory employees. Supervisory employees shall not be eligible
- Local unions, as separate and voluntary associations, do not owe for membership in a labor organization of the rank-and-file employees but
their creation and existence to the national federation to which they may join, assist or form separate labor organizations of their own. The rank
are affiliated but, instead, to the will of their members and file union and the supervisors’ union operating within the same
- The sole essence of affiliation is to increase, by collective action, the establishment may join the same federation or national union.
common bargaining power of local unions for the effective
Article 252
enhancement and protection of their interests.
Coverage and employees’ right to self-organization. All persons employed
REQUIREMENTS FOR REGISTRATION in commercial, industrial and agricultural enterprises and in religious,
charitable, medical, or educational institutions, whether operating for profit
CHARTERED LOCAL or not, shall have the right to self-organization and to form, join, or assist
Book V, Rule I, Section 1 (i) labor organizations of their own choosing for purposes of collective
"Chartered Local" refers to a labor organization in the private sector bargaining. Ambulant, intermittent and itinerant workers, self-employed
operating at the enterprise level that acquired legal personality through people, rural workers and those without any definite employers may form
registration with the Regional Office in accordance with Rule III, Section 2-E labor organizations for their mutual aid and protection.
of these Rules.
Article 255
Book V, Rule III, Section 2 (E) Effect of Inclusion as Members of Employees Outside the Bargaining Unit.
The report of creation of a chartered local shall be accompanied by a charter The inclusion as union members of employees outside the bargaining unit
certificate issued by the federation or national union indicating the creation shall not be a ground for the cancellation of the registration of the union. Said
of establishment of the chartered local. employees are automatically deemed removed from the list of membership
of said union.
Note
- Trade Union Centers cannot create a local/chapter57

56 PHIL. SKYLANDERS V NLRC (2002) 58 FILIPINO PIPE AND FOUNDRY V NLRC (1999)
57 SMCEU-PTGWO V SMPPEU-PDMP (2007) 59 SUGBUANON V LAGUESMA (2000)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 25 79
H. Union Security || Statutory Basis and Rationale || LOCAL UNION DISAFFILIATION / MASS DISAFFILIATION
« Concept of Disaffiliation »

LOCAL UNION DISAFFILIATION / MASS DISAFFILIATION H. Union Security


Concept of Disaffiliation Article 258 (e)
- A local union, being a separate and voluntary association, is free to Unfair Labor Practices of Employers. It shall be unlawful for an employer to
serve the interests of its members including the freedom to commit any of the following unfair labor practice:
disaffiliate or declare its autonomy from the federation to which it To discriminate in regard to wages, hours of work and other terms and
belongs when circumstances warrant, in accordance with the conditions of employment in order to encourage or discourage membership in
any labor organization. Nothing in this Code or in any other law shall stop the
constitutional guarantee of freedom of association. 60
parties from requiring membership in a recognized collective bargaining
o Such disaffiliation cannot be considered as an act of disloyalty.61 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
PHILIPPINE LABOR ALLIANCE COUNCIL V BLR (1977) bargaining agreement. Employees of an appropriate bargaining unit who are
ONCE THE FACT OF DISAFFILIATION HAS BEEN not members of the recognized collective bargaining agent may be assessed a
DEMONSTRATED BEYOND DOUBT, A CERTIFICATION ELECTION reasonable fee equivalent to the dues and other fees paid by members of the
recognized collective bargaining agent, if such non-union members accept
IS THE MOST EXPEDITIOUS WAY OF DETERMINING WHICH
the benefits under the collective bargaining agreement: Provided, That the
LABOR ORGANIZATION IS TO BE THE EXCLUSIVE BARGAINING
individual authorization required under Article 242, paragraph (o) of this Code
REPRESENTATIVE.
shall not apply to the non-members of the recognized collective bargaining
A CBA was renewed and certified between the incumbent CEBA and agent.
the company. Thereafter, a petition asking for its nullification was
filed, on the ground that there was a mass disaffiliation of union STATUTORY BASIS AND RATIONALE
F: members on the basis of its CBA being used to thwart the - There is no hindrance from labor unions to require membership in a
disaffiliation. The BLR then issued an order decertifying the CBA CEBA as a condition for employment
(the CBA was not ratified by majority of EEs) and ordering a o Considered as a VALID DISCRIMINATION68
certification election. - It is the State’s policy to promote unionism to empower workers’
I: WON a Certification Election may be validly ordered bargaining power. For this reason, the law has allowed union
YES. The mass disaffiliation is an indication that a PCE should be security provisions as a means of encouraging workers to join and
held. This was possible because of the decertification of the CBA. support the union of their choice in the protection of their rights and
It is indisputable that the present controversy would not have interest vis-à-vis the employer.69
R: arisen if there were no mass disaffiliation from PLAC. Such a - As discussed in class:
phenomenon is nothing new in the Philippine labor movement. Nor
o To increase bargaining power of unions
is it open to any legal objection. It is the incontrovertible right of
o To enhance the harmonious relationships inside the enterprise
any individual to join an organization of his choice.
o To effectively enforce the CBA
THERE WAS A DECERTIFICATION OF THE CBA IN THIS CASE, THAT o To avoid free riders
NOTE:
IS WHY THE CONTRACT BAR RULE CANNOT BE INVOKED. o To avoid discrimination against members
Period of Disaffiliation VALIDITY AGREEMENT AND EFFECT ON FREEDOM OF
G.R.: At any time, since this right is consistent with the constitutional CHOICE
guarantee of freedom of association. 62 - Termination of employment by virtue of a union security clause
E: If there is a stipulation for union security, only during the 60-day embodied in a CBA is recognized and accepted in our jurisdiction.
freedom period. Such practice strengthens the union and prevents disunity in the BU
EE: Unless when there is a shift of allegiance on the part of the within the duration of the CBA. By preventing member disaffiliation
majority of the members of the union.63 with the threat of expulsion from the union and the consequent
Note: termination of employment, the authorized bargaining
representative gains more numbers and strengthens its position as
- To disaffiliate is a right but to observe the terms of affiliation is an
against other unions which may want to claim majority
obligation. it may sever its affiliation at any time (in accordance with
representation.70
the freedom of association) and such disaffiliation cannot be
considered as disloyalty in the absence of specific provisions in the
federation’s constitution prohibiting disaffiliation or declaration of
autonomy of a local union. (Azucena)
Effect of Disaffiliation
- It doesn't disturb the enforceability and administration of a
collective agreement; it doesn't occasion a change of administrators
of the contract nor even an amendment of the provisions thereof.64
- A contract between the ER and the parent organization as
bargaining agent for the EEs is terminated by the disaffiliation of the
local union where the EEs are members.65
- The parent union is divested of all powers to act in representation of
its local union.66
- A local union, which is not independently registered, cannot upon
disaffiliation from the federation, exercise the rights and privileges
granted by law to legitimate labor organization.67

60MALAYANG SAMAHAN NG MGA MANGGAGAWA SA M. GREENFIELD V.


RAMOS (2000)
61
Id.
62 VOLKSCHEL V BLR (1985)
63 ANGLO V SAMANA (1996) 67 EDEN GLADYS ABARIA V. NLRC (2011)
64
Id. 68
Prof. Battad
65
Id. 69 DEL MONTE V SALDIVAR (2006)
66 ANGLO V SAMANA (1996) 70 UHLUHBUNG COUNTRY CLUB (ACC) V. NLRC (2008)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 26 79
H. Union Security || types of union security provisions || LOCAL UNION DISAFFILIATION / MASS DISAFFILIATION
« Requisites for a valid termination of employment based on a union security clause »

TYPES OF UNION SECURITY PROVISIONS COVERAGE: WORKER INCLUSION AND EXCLUSION


TYPE DEFINITION - A closed-shop provision in a CBA is not to be given a retroactive
OPEN SHOP An arrangement where one is not required to join effect so as to preclude its being applied to employees already in the
or financially support a union as a condition of service.71
hiring or continued employment o A closed-shop then only applies to those who, at the time of the
CLOSED SHOP An agreement where only union members may be implementation of the CBA, are:
employed and, for the duration of the agreement, § Non-union members; or
remains a member in good standing of a union. § New hires
UNION SHOP An agreement where all new regular employees
are required to join the union within a certain IMPLEMENTATION: OBLIGATION AND LIABILITIES
period as a condition for their continued Requisites for a valid termination of employment based on a union
employment. security clause72
MAINTENANCE An agreement where present and future union 1. Union Security Clause is applicable
OF MEMBERSHIP members must maintain their membership as a 2. Union is requesting for the enforcement of the Union Security
SHOP condition for continued employment until they provision in the CBA
are promoted or transferred out of the bargaining 3. Sufficient evidence to support the Union’s decision to expel the EE
unit or the agreement is terminated. from the Union.
MODIFIED An agreement where employees who are not Note:
UNION SHOP union members at the time of signing the
- A union security clause cannot be used as a convenient way to
contract need not join the union, but all hired
dismiss employees without just cause. Its purpose is to increase the
workers thereafter must join.
effectiveness of such organization, and not to be used against
AGENCY SHOP It is an arrangement whereby non-members must
minority groups.73
pay the union agency fees for the benefits they
received as a consequence of the bargaining FINANCIAL SECURITY: AGENCY SHOP AND CHECK-OFF
efforts of the union. - Checking-off Agency Fees does not require a written authorization
from the non-union employees if they accept the benefits resulting
from the CBA.74

71 GUIJARNO V CIR (1973)


72 ALABANG COUNTRY CLUB V NLRC (2008)
73 GUIJARNO V. CIR (1973)
74 DEL-PILAR ACADEMY V DPAEU (2008)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 27 79
A. Definition and Role of Law || factors in unit determination || LOCAL UNION DISAFFILIATION / MASS DISAFFILIATION
« What is a Bargaining Unit? »

FACTORS IN UNIT DETERMINATION


The Appropriate Fundamental factors in determining the appropriate collective
bargaining unit76:
Bargaining Unit 1. The will of the employees (Globe Doctrine);
2. Affinity and unity of the employees' interest, such as substantial
similarity of work and duties, or similarity of compensation and
A. Definition and Role of Law working conditions (Substantial Mutual Interests Rule);
Article 231 3. Prior collective bargaining history; and
Contempt powers of the Secretary of Labor. In the exercise of his powers 4. Similarity of employment status.
under this Code, the Secretary of Labor may hold any person in direct or
indirect contempt and impose the appropriate penalties therefor. Basic Test on Bargaining Unit’s Acceptability77
- WON it is fundamentally the combination which will best assure to
Article 267 all employees the exercise of their collective bargaining rights
Representation issue in organized establishments. In organized
establishments, when a verified petition questioning the majority status of
Note:
the incumbent bargaining agent is filed before the Department of Labor and - Community or mutuality of interests is the standard, and such
Employment within the sixty-day period before the expiration of the mutuality does not exist between the teaching personnel and the
collective bargaining agreement, the Med-Arbiter shall automatically order administrative personnel.78
an election by secret ballot when the verified petition is supported by the - The existence of a prior CB history is neither decisive nor conclusive
written consent of at least twenty-five percent (25%) of all the employees in in the determination of what constitutes an appropriate BU. The test
the bargaining unit to ascertain the will of the employees in the appropriate of grouping is mutuality/commonality of interests. The EEs sought
bargaining unit. To have a valid election, at least a majority of all eligible
to be represented by the CB agent must have substantial mutual
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 interests in terms of employment and working conditions as evinced
agent of all the workers in the unit. When an election which provides for by the type of work they perform.79
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 UNIT SEVERANCE AND GLOBE DOCTRINE
receiving the two highest number of votes: Provided, that the total number of Globe Doctrine
votes for all contending unions is at least fifty percent (50%) of the number
- To give consideration to the express will or desire of the employees
of votes cast. At the expiration of the freedom period, the employer shall
continue to recognize the majority status of the incumbent bargaining agent o This ‘will’ is better clarified in a secret balloting/referendum.
where no petition for certification election is filed. - This doctrine only applies in instances of evenly balanced claims by
competitive groups for the right to be established as the bargaining
Book V, Rule I, Section 1 (d) unit and not in exclusion-inclusion challenges.80
“Bargaining Unit” refers to a group of employees sharing mutual interests
within a given employer unit, comprised of all or less than all of the entire EFFECT OF PRIOR AGREEMENT
body of employees in the employer unit or any specific occupational or - They can never bind subsequent federations and unions because it
geographical grouping within such employer unit. will be a curtailment of the right to self-organization guaranteed by
the labor laws.81
What is a Bargaining Unit?
- A group of employees of a given employer, comprised of all or less EFFECT OF INCLUDING EMPLOYEES OUTSIDE OF THE
than all of the entire body of employees, consistent with equity to BARGAINING UNIT
the employer, indicate to be the best suited to serve the reciprocal - Any mingling between supervisory and rank-and-file employees in a
rights and duties of the parties under the collective bargaining labor union cannot affect its legitimacy for that is not among the
provisions of the law.75 grounds for cancellation of its registration, unless such mingling was
brought about by misrepresentation, false statement or fraud under
BELYCA CORPORATION V CALLEJA (1988) the Labor Code.82
TO LUMP ALL OF THE EMPLOYEES WITH ALL OF THE
BUSINESS CANNOT RESULT IN AN EFFECTIVE BARGAINING
UNIT COMPRISED OF MEMBERS ENJOYING A
C. Determining Agency
COMMUNITY/MUTUALITY OF INTEREST Article 232
Bureau of Labor Relations. The Bureau of Labor Relations and the Labor
Company wants to stop the certification election asserting that Relations Divisions in the regional offices of the Department of Labor, shall
the bargaining unit wasn’t appropriate since it didn’t represent have original and exclusive authority to act, at their own initiative or upon
F:
all the employees of his integrated business (which ranged request of either or both parties, on all inter-union and intra-union conflicts,
from poultry, agricultural farming, cinemas and supermarket). and all disputes, grievances or problems arising from or affecting labor-
I: WON the union formed a valid bargaining unit management relations in all workplaces, whether agricultural or non-
YES. Court held that the BU was appropriate considering that agricultural, except those arising from the implementation or interpretation
the EEs of the agro and livestock have different employment of collective bargaining agreements which shall be the subject of grievance
statuses as well as conditions of work compared to those of the procedure and/or voluntary arbitration.
R: other departments. In determining the appropriate bargaining
unit, the test is what balance between the employment status Article 237
of employees and the mutuality of their interests will best Prohibition on Certification Election. The Bureau shall not entertain any
assure the EEs of their right to collectively bargain. petition for certification election or any other action which may disturb the
administration of duly registered existing collective bargaining agreement of
the parties except under Articles 263, 264, and 267 of this Code.
B. Determination of Appropriate
Bargaining Unit 76 DEMOCRATIC LABOR ASSOCIATION V. CEBU STEVEDORING CO. INC (1958)
77
Id.
78 UP V FERRER-CALLEJA (1992)
79 SMC V LAGUESMA (1994)
80 PIDI V NLRC (1992)
81 GENERAL RUBBER V BLR (1997)
75
Rothenberg in Labor Relations, p. 482 82 SMCC-SUPER V CHARTER CHEMICAL (2011)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 28 79
A. Pre-Condition: Employer – Employee Relationship || Policy/Purpose || LOCAL UNION DISAFFILIATION / MASS DISAFFILIATION
« Notes: »

Union
Book V, Rule VI, Section 2
Determination of Representation Status; Modes. The determination of an
exclusive bargaining agent shall be through voluntary recognition in cases

Representation
where there is only one legitimate labor organization operating within the
bargaining unit, or through certification, run-off or consent election as
provided in these Rules

A. Pre-Condition: Employer – Employee Book V, Rule VII, 1


Relationship When and Where to File. In unorganized establishments with only one
legitimate labor organization, the employer may voluntarily recognize the
- The existence of an ER-EE relationship is a condition sine qua non to
representation status of such a union. Within thirty (30) days from such
the conduct of a certification election and to the existence of the recognition, the employer and union shall submit a notice of voluntary
duty on the part of the employer to bargain collectively with the recognition with the Regional Office which issued the recognized labor
union.83 union’s certificate of registration or certificate of creation of chartered local.

Section 2
B. Methods of Establishing Majority Requirements for voluntary recognition. The notice of voluntary recognition
Status shall be accompanied by the original copy and two (2) duplicate copies of the
following documents:
POLICY/PURPOSE (a) a joint statement under oath of voluntary recognition attesting to the
Article 266 fact of voluntary recognition;
(b) certificate of posting of the joint statement of voluntary recognition for
Exclusive Bargaining Representation and Workers’ Participation in Policy
fifteen (15) consecutive days in at least two (2) conspicuous places in the
and Decision-Making. The labor organization designated or selected by the
establishment or bargaining unit where the union seeks to operate;
majority of the employees in an appropriate collective bargaining unit shall
(c) the approximate number of employees in the bargaining unit,
be the exclusive representative of the employees in such unit for the purpose
accompanied by the names of those who support the voluntary
of collective bargaining. However, an individual employee or group of
recognition comprising at least a majority of the members of the
employees shall have the right at any time to present grievances to their
bargaining unit; and
employer.
(d) a statement that the labor union is the only legitimate labor organization
Article 250 (b) operating within the bargaining unit.
Rights of Legitimate Labor Organizations: All accompanying documents of the notice for voluntary recognition shall be
To be certified as the exclusive representative of all the employees in an certified under oath by the employer representative and president of the
appropriate bargaining unit for purposes of collective bargaining. recognized labor union.

Book V, Rule VI, Section 1 Section 3


Policy. It is the policy of the State to promote free trade unionism through Action on the Notice. Where the notice of voluntary recognition is sufficient
expeditious procedures governing the choice of an exclusive bargaining agent. in form, number and substance and where there is no other registered labor
The determination of such exclusive bargaining agent is a non-litigious union operating within the bargaining unit concerned, the Regional Office,
proceeding and, as far as practicable, shall be free from technicalities of law through the Labor Relations Division shall, within ten (10) days from receipt
and procedure, provided only that in every case, the exclusive bargaining of the notice, record the fact of voluntary recognition in its roster of
agent enjoys the majority support of all the employees in the bargaining unit. legitimate labor unions and notify the labor union concerned.
Where the notice of voluntary recognition is insufficient in form, number and
Article 218 (b) substance, the Regional Office shall, within the same period, notify the labor
Policy. To promote free trade unionism as an instrument for the union of its findings and advise it to comply with the necessary requirements.
enhancement of democracy and the promotion of social justice and Where neither the employer nor the labor union failed to complete the
development requirements for voluntary recognition under Section 2 of this Rule within
thirty (30) days from receipt of the advisory, the Regional Office shall return
Notes: the notice for voluntary recognition together with all its accompanying
- The purpose of certification election is to ascertain the wishes of the documents without prejudice to its re-submission.
majority of the employees in the appropriate bargaining unit.84 Section 4
- A Certification Election is the most effective and most democratic
Effect of Recording of Fact of Voluntary Recognition. From the time of
way of determining which LO can truly represent the working force recording of voluntary recognition, the recognized labor union shall enjoy the
in the appropriate bargaining unit of a company.85 rights, privileges and obligations of an existing bargaining agent of all the
employees in the bargaining unit. Entry of voluntary recognition shall bar the
VOLUNTARY RECOGNITION filing of a petition for certification election by any labor organization for a
Article 250 (c) period of one (1) year from the date of entry of voluntary recognition. Upon
Rights of Legitimate Labor Organizations. expiration of this one-year period, any legitimate labor organization may file
To be furnished b the employer, upon written request, with its annual audited a petition for certification election in the same bargaining unit represented
financial statements, including the balance sheet and the profit and loss by the voluntarily recognized union, unless a collective bargaining agreement
statement, within thirty (30) calendar days from the date of receipt of the between the employer and voluntarily recognized labor union was executed
request, after the union has been duly recognized by the employer or and registered with the Regional Office in accordance with Rule XVII of these
certified as the sole and exclusive bargaining representative of the Rules.
employees in the bargaining unit, or within sixty (60) calendar days before
the expiration of the existing collective bargaining agreement, or during the Note:
collective bargaining negotiation. - Voluntary Recognition is only proper in unorganized establishments
where no existing labor organizations are present. It may not be
Book V, Rule I, Section 1 (bbb) done by an employer when another union has already filed a PCE
“Voluntary Recognition” refers to the process by which a legitimate labor and is pending before the Bureau.86
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.

83 ALLIED FREE WORKERS UNION V CIA MARITIMA (1967)


84 REYES V TRAJANO (1992)
85 SMP V SOLE (1998) 86 STA. LUCIA EAST COMMERCIAL CORP V SOLE (2009)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 29 79
C. Certification Election: Process || elections || CERTIFICATION ELECTION
« Note: »

ELECTIONS C. Certification Election: Process


CERTIFICATION ELECTION Book V, Rule VIII, Section 1
Article 267 Who may file. Any legitimate labor organization, including a national union
Representation Issue in Organized Establishments. In organized or federation that has issued a charter certificate to its local/chapter or the
establishments, when a verified petition questioning the majority status of local/chapter itself, may file a petition for certification election.
the incumbent bargaining agent is filed by any legitimate labor organization A national union or federation filing a petition in behalf of its local/chapter
including a national union or federation which has already issued a charter shall not be required to disclose the names of the local/chapter’s officers
certificate to its local chapter participating in the certification election or a and members, but shall attach to the petition the charter certificate it issued
local chapter which has been issued a charter certificate by the national to its local/chapter.
union or federation before the Department of Labor and Employment within When requested to bargain collectively in a bargaining unit where no
the sixty (60)-day period before the expiration of the collective bargaining registered CBA exists, an employer may file a petition for certification
agreement, the Med-Arbiter shall automatically order an election by secret election with the Regional Office.
ballot when the verified petition is supported by the written consent of at
In all cases, whether the PCE is filed by an ER or a LLO, the ER shall not be
least twenty-five percent (25%) of all the employees in the bargaining unit to
considered a party thereto with a concomitant right to oppose a PCE. The
ascertain the will of the employees in the appropriate bargaining unit.
ER’s participation in such proceedings shall be limited to: (1) being notified or
To have a valid election, at least a majority of all eligible voters in the unit informed of petitions of such nature; and (2) submitting the list of EEs during
must have cast their votes. The labor union receiving the majority of the valid the pre-election conference should the MA act favourably on the petition.
votes cast shall be certified as the exclusive bargaining agent of all the
Any EE has the right to intervene for the protection of his individual right.
workers in the unit.
Section 2
Book V, Rule I, Section 1 (h)
Where to file. A petition for certification election shall be filed with the
“Certification Election” refers to the process of determining through secret Regional Office which issued the petitioning union's certificate of
ballot the sole and exclusive representative of the employees in an registration/certificate of creation of chartered local. The petition shall be
appropriate bargaining unit for purposes of collective bargaining or heard and resolved by the Med-Arbiter. Where two or more petitions
negotiation. A certification election is ordered by the Department. 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
CONSENT ELECTION
Regional Office in which the petition was first filed shall exclude all others; in
Book V, Rule I, Section 1 (h) which case, the latter shall indorse the petition to the former for
“Consent Election” refers to the process of determining through secret ballot consolidation.
the sole and exclusive representative of the employees in an appropriate
bargaining unit for purposes of collective bargaining or negotiation. A Section 3
consent election is voluntarily agreed upon by the parties, with or without When to file. A petition for certification election may be filed anytime,
the intervention by the Department. except:
(a) when a fact of voluntary recognition has been entered or a valid
certification, consent or run-off election has been conducted within the
RUN-OFF ELECTION bargaining unit within one (1) year prior to the filing of the petition for
Article 267, 3rd par., last sentence certification election. Where an appeal has been filed from the order of
When an election which provides for three or more choices results in no the Med-Arbiter certifying the results of the election, the running of the
choice receiving a majority of the valid votes cast, a run-off election shall be one year period shall be suspended until the decision on the appeal has
conducted between the labor unions receiving the two highest number of become final and executory;
votes: Provided, That the total number of votes for all contending unions is (b) when the duly certified union has commenced and sustained
at least fifty percent (50%) of the number of votes cast. In cases where the negotiations in good faith with the employer in accordance with Article
petition was filed by a national union or federation, it shall not be required to 250 of the Labor Code within the one year period referred to in the
disclose the names of the local chapter’s officers and members. immediately preceding paragraph;
(c) when a bargaining deadlock to which an incumbent or certified
Book V, Rule I, Section 1 (ss) bargaining agent is a party had been submitted to conciliation or
“Run-off Election” refers to an election between the labor unions receiving arbitration or had become the subject of a valid notice of strike or
the two (2) highest number of votes in a certification or consent election with lockout;
three (3) or more choices, where such a certified or consent results in none of (d) when a collective bargaining agreement between the employer and a
the three (3) or more choices receiving the majority of the valid votes cast; duly recognized or certified bargaining agent has been registered in
Provided, that the total number of votes for all contending unions is at least accordance with Article 231 of the Labor Code. Where such collective
fifty percent (50%) of the number of votes cast. bargaining agreement is registered, the petition may be filed only within
sixty (60) days prior to its expiry.

Section 4
VENUE OF PETITION
Form and contents of petition. The petition shall be in writing, verified
- Where the place of work and the place of the principal office of the under oath by the president of petitioning labor organization. Where a
ER are located in different territorial jurisdiction of Regional Offices, federation or national union files a petition in behalf of its local or affiliate,
certification may be filed with the RO of the place of business.87 the petition shall be verified under oath by the president or duly authorized
- The worker, being the economically-disadvantaged party whether representative of the federation or national union. In case the ER files the
as complainant, petitioner or respondent, as the case may be, the petition, the owner, president or any corporate officer, who is authorized by
nearest governmental machinery to settle a labor dispute must be the board of directors, shall verify the petition. The petition shall contain the
placed at his immediate disposal and the employer must in no case following:
be allowed a choice in favor of another competent agency sitting in (a) the name of petitioner, its address, and affiliation if appropriate, the
date and number of its certificate of registration. If the petition is filed
another place to the inconvenience of the worker88
by a federation or national union, the national president or his/her duly
authorized representative shall certify under oath as to the existence of
its local/chapter in the establishment and attaching thereto the charter
certificate or a certified true copy thereof. If the petition is filed by a
local/chapter it shall attach its charter certificate or a certified true
copy thereof;
(b) the name, address and nature of employer's business;
(c) the description of the bargaining unit;
87 CRUZVALE V LAGUESMA (1994) (d) the approximate number of employees in the bargaining unit;
88 NESTLE PHILIPPINES, INC. V. NLRC (1992)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 30 79
C. Certification Election: Process || Venue of petition || RUN-OFF ELECTION
« Note: »

(e) the names and addresses of other legitimate labor unions in the The first pre-election conference shall be scheduled within ten (10) days
bargaining unit; from the date of the consent election agreement. Subsequent conferences
(f) a statement indicating any of the following circumstances: 1) that the may be called to expedite and facilitate the holding of the consent election.
bargaining unit is unorganized or that there is no registered collective To afford an individual EE-voter an informed choice where a local/chapter is
bargaining agreement covering the employees in the bargaining unit; 2) the petitioning union, the local/chapter shall secure its certificate of
if there exists a duly registered collective bargaining agreement, that creation at least five working days before the date of the consent election.
the petition is filed within the sixty-day freedom period of such
agreement; or 3) if another union had been previously recognized Section 11
voluntarily or certified in a valid certification, consent or run-off Number of Hearings; Pleadings. If the contending unions fail to agree to a
election, that the petition is filed outside the one-year period from date consent election during the preliminary conference, the Med-Arbiter may
of recording of such voluntary recognition or conduct of certification or conduct as many hearings as he/she may deem necessary, but in no case
run-off election and no appeal is pending thereon. shall the conduct thereof exceed fifteen (15) days from the date of the
(g) In an organized establishment, the signature of at least twenty-five scheduled preliminary conference/hearing, after which time the petition
percent (25%) of all employees in the appropriate bargaining unit shall shall be considered submitted for decision. The Med-Arbiter shall have
be attached to the petition at the time of its filing; and control of the proceedings. Postponements or continuances shall be
(h) other relevant facts. discouraged. Within the same 15-day period within which the petition is
heard, the contending labor unions may file such pleadings as they may
Section 5 deem necessary for the immediate resolution of the petition. Extensions of
Raffle of the case. The RD or his/her duly authorized representative upon time shall not be entertained. All motions shall be resolved by the Med-
receipt of the petition shall immediately assign it by raffle to a Mediator- Arbiter in the same order or decision granting or denying the petition.
Arbiter. The raffle shall be done in the presence of the petitioner if the latter
so desires. Section 12
Failure to appear despite notice. The failure of any party to appear in the
Section 6 hearing(s) when notified or to file its pleadings shall be deemed a waiver of
Notice of preliminary conference. The petition shall immediately be its right to be heard. The Med-Arbiter, however, when agreed upon by the
transmitted to the assigned Mediator-Arbiter who shall immediately parties for meritorious reasons may allow the cancellation of scheduled
prepare and serve a notice of preliminary conference to be held within ten hearing(s). The cancellation of any scheduled hearing(s) shall not be used as
(10) working days from the Mediator-Arbiter’s receipt of the petition. a basis for extending the 15-day period within which to terminate the same.
The service of the petition to the ER and of the notice of preliminary
conference to the petitioner and the incumbent bargaining agent (if any) Section 13
shall be made within three (3) working days from the Mediator-Arbiter’s Order/Decision on the petition. Within ten (10) days from the date of the
receipt of the petition. The service may be made by personal service, by last hearing, the Mediator-Arbiter shall formally issue a ruling granting or
registered mail or by courier service. denying the petition, except in organized establishments where the grant of
A copy of the petition and of the notice of preliminary conference shall be the petition can only be made after the lapse of the freedom period.
posted within the same three (3) day period in at least two conspicuous The ruling for the conduct of a certification election shall state the
places in the establishment. In multiple-location workplaces, the posting following:
shall be made in at least two conspicuous places in every location. (a) the name of the employer or establishment;
(b) the description of the bargaining unit;
Section 7 (c) a statement that none of the grounds for dismissal enumerated in the
Forced Intervenor. The incumbent bargaining agent shall automatically be succeeding paragraph exists;
one of the choices in the certification election as forced intervenor. (d) the names of the contending labor unions which shall appear in the ff
order: the petitioner union/s in the order of the date of filing of their
Section 8
respective petitions; the forced intervenor; and “no union”; and
Motion for Intervention. - When a petition for certification election was (e) to afford an individual EE-voter an informed choice where a
filed in an organized establishment, any legitimate labor union other than local/chapter is one of the contending unions, a directive to an
the incumbent bargaining agent operating within the bargaining unit may file unregistered local/chapter or a federation/national union representing
a motion for intervention with the Med-Arbiter during the freedom period of an unregistered local/chapter to personally submit to the Election
the collective bargaining agreement. The form and contents of the motion Officer its certificate of creation at least five working days before the
shall be the same as that of a petition for certification election. In an actual conduct of the CE.
unorganized establishment, the motion shall be filed at any time prior to the Non-submission of this requirement as certified by the Election Officer
decision of the MedArbiter. The form and contents of the motion shall shall disqualify the local/chapter from participating in the CE; and
likewise be the same as that of a petition for certification election. The
(f) a directive to the ER and the contending union(s) to submit within ten
motion for intervention shall be resolved in the same decision issued in the
(10) days from receipt of the order, the certified list of EEs in the
petition for certification election.
bargaining unit, or where necessary, the payrolls covering the members
Section 9 of the bargaining unit for the last three (3) months prior to the issuance
of the order.
Preliminary Conference; Hearing. The Med-Arbiter shall conduct a
preliminary conference and hearing within ten (10) days from receipt of the Section 14
petition to determine the following:
Denial of the petition; Grounds. The Mediator-Arbiter may dismiss the
(a) the bargaining unit to be represented; petition on any of the following grounds:
(b) contending labor unions;
(a) the petitioning union or national union/federation is not listed in the
(c) possibility of a consent election;
Department's registry of legitimate labor unions or that its legal
(d) existence of any of the bars to certification election under Section 3 of
personality has been revoked or cancelled with finality in accordance
this Rule; and
with Rule XIV of these Rules;
(e) such other matters as may be relevant for the final disposition of the
(b) failure of a local/chapter or national union/federation to submit a duly
case.
issued charter certificate upon filing of the PCE;
Section 10 (c) filing the petition before or after the freedom period of a duly registered
collective bargaining agreement; provided that the sixty-day period
Consent Election; Agreement. The contending unions may agree to the
based on the original collective bargaining agreement shall not be
holding of an election, in which case it shall be called a consent election. The
affected by any amendment, extension or renewal of the collective
Mediator-Arbiter shall forthwith call for the consent election, reflecting the
bargaining agreement;
parties’ agreement and the call in the minutes of the conference.
(d) filing of a petition within one (1) year from the date of recording of the
The Mediator-Arbiter shall, immediately forward the records of the petition voluntary recognition, or within the same period from a valid
to the RD or his/her authorized representative for the determination of the certification, consent or run-off election where no appeal on the results
Election Officer who shall be chosen by raffle in the presence of of the certification, consent or run-off election is pending;
representatives of the contending unions if they so desire. (e) where a duly certified union has commenced and sustained negotiations

_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 31 79
C. Certification Election: Process || The Union as intiating party || ORGANIZED ESTABLISHMENT
« Petition Before Freedom Election Period »

with the employer in accordance with Article 250 of the Labor Code Section 21
within the one-year period referred to in Section 14d of this Rule, or Period to Reply. A reply to the appeal may be filed by any party to the
where there exists a bargaining deadlock which has been submitted to petition within ten (10) days from receipt of the memorandum of appeal. The
conciliation or arbitration or has become the subject of a valid notice of reply shall be filed directly with the Office of the Secretary.
strike or lockout where an incumbent or certified bargaining agent is a
party; Section 22
(f) in an organized establishment, the failure to submit the twenty-five
Decision of the Secretary. The Secretary shall have fifteen (15) days from
percent (25%) signature requirement to support the filing of the petition
receipt of the entire records of the petition within which to decide the
for certification election;
appeal. The filing of the memorandum of appeal from the order or decision
(g) non-appearance of the petitioner for two (2) consecutive scheduled
of the Med-Arbiter stays the holding of any certification election. The
conferences before the Mediator-Arbiter despite due notice; and
decision of the Secretary shall become final and executory after ten (10)
(h) Absence of ER-EE relationship between all the members of the
days from receipt thereof by the parties. No motion for reconsideration of
petitioning union and the establishment where the proposed bargaining
the decision shall be entertained.
unit is sought to be represented.

Section 15 Section 23
Prohibited grounds for the denial/suspension of the petition. All issues Transmittal of records to the Regional Office. Within forty-eight (48) hours
pertaining to the existence of employer-employee relationship, eligibility or from notice of receipt of decision by the parties and finality of the decision,
mixture in union membership raised before the Med-Arbiter during the the entire records of the case shall be remanded to the Regional Office of
hearing(s) and in the pleadings shall be resolved in the same order or origin for implementation. Implementation of the decision shall not be
decision granting or denying the petition for certification election. Any stayed unless restrained by the appropriate court.
question pertaining to the validity of petitioning union's certificate of
registration or its legal personality as a labor organization, validity of Section 24
registration and execution of collective bargaining agreements shall be Effects of consent election. Where a petition for certification election had
heard and resolved by the Regional Director in an independent petition for been filed, and upon the intercession of the Med-Arbiter, the parties agree
cancellation of its registration and not by the MedArbiter in the petition for to hold a consent election, the results thereof shall constitute a bar to the
certification election, unless the petitioning union is not found in the holding of a certification election for one (1) year from the holding of such
Department's roster of legitimate labor organizations or an existing consent election. Where an appeal has been filed from the results of the
collective bargaining agreement is unregistered with the Department. consent election, the running of the one-year period shall be suspended
until the decision on appeal has become final and executory. Where no
Section 16 petition for certification election was filed but the parties themselves agreed
Ancillary Issues. All issues pertaining to the existence of employer- to hold a consent election with the intercession of the Regional Office, the
employee relationship, raised before the Mediator-Arbiter during the results thereof shall constitute a bar to another petition for certification
hearing(s) and in the pleadings shall be resolved in the same order or election.
decision granting or denying the petition for certification election.
Section 25
All issues pertaining to the validity of petitioning union's certificate of
registration or its legal personality as a labor organization, validity of Effects of early agreements. The representation case shall not be adversely
registration and execution of collective bargaining agreements shall be affected by a collective bargaining agreement registered before or during
heard and resolved by the Regional Director in an independent petition for the last sixty (60) days of a subsisting agreement or during the pendency of
cancellation of its registration and not by the Mediator-Arbiter in the the representation case.
petition for certification election, unless the petitioning union is not listed in
the Department's roster of legitimate labor organizations or an existing Section 26
collective bargaining agreement is not registered with the Department. Non-Availability of Med-Arbiter. Where there is no Med-Arbiter available
in the Regional Office by reason of vacancy, prolonged absence, or excessive
Section 17 workload as determined by the Regional Director, he/she shall transmit the
Release of Order/Decision within ten (10) days from the last hearing, The entire records of the case to the Bureau, which shall within forty-eight (48)
MedArbiter shall release his/her order or decision granting or denying the hours from receipt assign the case to the Bureau, which shall within fort-
petition personally to the parties on an agreed date and time. eight (48) hours from receipt assign the case to any Med-Arbiter from any
Regional Offices or from the Bureau.
Section 18
Appeal. The order granting the conduct of a certification election in an THE UNION AS INTIATING PARTY
unorganized establishment shall not be subject to appeal. Any issue arising ORGANIZED ESTABLISHMENT
therefrom may be raised by means of protest on the conduct and results of
the certification election. The order granting the conduct of a certification Article 263
election in an organized establishment and the decision dismissing or Duty to bargain collectively when there exists a collective bargaining
denying the petition, whether in an organized or unorganized establishment, agreement. When there is a collective bargaining agreement, the duty to
may be appealed to the Office of the Secretary within ten (10) days from bargain collectively shall also mean that neither party shall terminate nor
receipt thereof. The appeal shall be verified under oath and shall consist of a modify such agreement during its lifetime. However, either party can serve a
memorandum of appeal, specifically stating the grounds relied upon by the written notice to terminate or modify the agreement at least sixty (60) days
appellant with the supporting arguments and evidence. 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
Section 19 the existing agreement during the 60-day period and/or until a new agreement
Where to file appeal. The memorandum of appeal shall be filed in the is reached by the parties.
Regional Office where the petition originated, copy furnished the contending
unions and the employer, as the case may be. Within twenty-four (24) hours Petition Before Freedom Election Period
from receipt of the appeal, the Regional Director shall cause the transmittal - If there is a CBA between the SEBA and the ER, any labor
thereof together with the entire records of the case to the Office of the organization who wish to represent the same bargaining unit are
Secretary. barred from filing a PCE except within the 60-day period prior to the
expiration of the CBA. To rule otherwise would negate the legislative
Section 20 intent in the enactment of Art. 232 which was designed to ensure
Finality of Order/Decision. Where no appeal is filed within the ten-day industrial peace between the employer and its employees during the
period, the Med-Arbiter shall enter the finality of the order/decision in the
existence of the CBA.89
records of the case and cause the transmittal of the records of the petition
to the Regional Director.

89 ATLANTIC GULF AND PACIFIC CO. MANILA, INC. V LAGUESMA (1992)


_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 32 79
C. Certification Election: Process || the employer as initiating party || UNORGANIZED ESTABLISHMENT
« Petition Beyond Freedom Period »

Petition Beyond Freedom Period EFFECT OF MEMBERS’ RETRACTION ON PETITION


Filing Party / Misrepresentation Rules: 95
- False statements or misrepresentations that interfere with the free - Withdrawal made before filing of PCE:
choice of the employees are valid grounds for protest. A CE may be o Presumed voluntary
set aside where: 90 - Withdrawal made after:
1. A material fact has been misrepresented in the campaign; o Presumed involuntarily made and do not affect the petition.
2. An opportunity for reply has been lacking; and
3. The misrepresentation has had an impact on the free choice of the Rationale:
employees. - The rationale for the presumption that withdrawals made after the
o A misrepresentation is likely to have an impact on free choice if it PCE are involuntary is that prior to the filing, the names of those
comes from a party who has special knowledge or is in an supporting the union is unknown to the contending union, meaning
authoritative position to know the true facts. they could not be harassed. But after the filing, their names become
available to the other parties exposing them to the use of foul
Forced Intervention / Motion for Intervention means to withdraw their support.96
- The requisite written consent of at least 20% of the workers of the
BU applies to petitioners for CE only, and not to motions for Note:
intervention. Nowhere in the aforesaid legal provisions (or the IRR of - The retraction does not retroact to the time of the application of
the LC) does it appear that a motion for intervention in a CE must be registration or even way back to the organizational meeting. Prior to
accompanied by a similar written consent.91 their withdrawal, they were bona fide union members.97

THE EMPLOYER AS INITIATING PARTY


UNORGANIZED ESTABLISHMENT Article 269
Article 268 When Employer May File Petition. When requested to bargain collectively, an
Petitions in Unorganized Establishments. In any establishment where there employer may petition the Bureau for an election. If there is no existing
is no certified bargaining agent, a certification election shall automatically be certified collective bargaining agreement in the unit, the Bureau shall, after
conducted by the Med-Arbiter upon the filing of a petition by any legitimate hearing, order a certification election. All certification cases shall be decided
labor organization, including a national union or federation which has already within twenty (20) working days. The Bureau shall conduct a certification
issued a charter certificate to its local/ chapter participating in the election within twenty (20) days in accordance with the rules and regulations
certification election or a local/ chapter which has been issued a charter prescribed by the Secretary of Labor.
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 Article 270
names of the local chapter’s officers and members. 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 there to with a concomitant right to
FILING OF PETITION oppose a petition for certification election. The employer’s participation in
such proceedings shall be limited to: (1) being notified or informed of petitions
Form of Petition of such nature; and (2) submitting the list of employees during the pre-
- Verification of a pleading is a formal, not jurisdictional requisite. election conference should the Med-Arbiter act favourably on the petition.
Even if verification is lacking and the pleading is formally defective,
the courts may dispense with the requirement in the interest of Note:
justice and order of correction of the pleading accordingly. - Unless the company itself filed a petition for a certification election
o Generally, technical and rigid rules of procedure are not binding in pursuant to Article 258, the ER has no standing to question the
labor cases; and this rule is specifically applied in certification election, which is the sole concern of the workers.98
election proceedings, which are non-litigious but merely
investigative and non-adversarial in character.92 RESPONSIBLE AGENCY
Article 232
Substantial Support
Bureau of Labor Relations. The Bureau of Labor Relations and the Labor
- Administrative rule requiring simultaneous submission of 25%
Relations Divisions in the regional offices of the Department of Labor, shall
consent signatures upon filing of PCE should NOT be strictly applied have original and exclusive authority to act, at their own initiative or upon
to frustrate the determination of the representative of the workers. request of either or both parties, on all inter-union and intra-union
o Requirement in the rule isn’t even found in the law it seeks to conflicts, and all disputes, grievances or problems arising from or affecting
implement. Hence, such regulation should merely be given only a labor-management relations in all workplaces, whether agricultural or non-
directory effect, NOT mandatory. Mere filing of the PCE within agricultural, except those arising from the implementation or interpretation
the freedom period is sufficient basis for the issuance of an order of collective bargaining agreements which shall be the subject of grievance
procedure and/or voluntary arbitration.
to hold a certification election.93
- The 20% membership rule is required only at the time of the filing of The Bureau shall have fifteen (15) working days to act on labor cases before
it, subject to extension by agreement of the parties.
petition for certification election and not throughout the existence
of the labor organization.94 Article 237
Prohibition on Certification Election. The Bureau shall not entertain any
petition for certification election or any other action which may disturb the
administration of duly registered existing collective bargaining agreement of
the parties except under Articles 263, 264, and 267 of this Code.

Article 267
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

90 DHL-UFRA-FFW V BUKLOD (2004)


91 PAFLU V CALLEJA (1989) 95 S.S. VENTURES INTERNATIONAL V. S.S. VENTURES LABOR UNION (2008)
92 NAMAWU V SOLE (1993) 96 MARIWASA SIAM CERAMICS V. SOLE (2009)
93 PORT WORKERS UNION OF THE PHILIPPINES V LAGUESMA (1992) 97 EAGLE RIDGE V EREU (2010)
94 MARIWASA SIAM CERAMICS V. SOLE (2009) 98 NOTRE DAME V LAGUESMA (2004)

_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 33 79
C. Certification Election: Process || nature of proceeding / effect of private agreement || PRELIMINARY CONFERENCE
« Note: »

Employment within the sixty-day period before the expiration of the Section 2
collective bargaining agreement, the Med-Arbiter shall automatically order Pre-election conference. Within twenty-four (24) hours from receipt of the
an election by secret ballot when the verified petition is supported by the assignment for the conduct of a certification election, the Election Officer
written consent of at least twenty-five percent (25%) of all the employees in shall cause the issuance of notice of pre-election conference upon the
the bargaining unit to ascertain the will of the employees in the appropriate contending unions, which shall be scheduled within ten (10) calendar days
bargaining unit. To have a valid election, at least a majority of all eligible from receipt of the assignment. The employer shall be required to submit the
voters in the unit must have cast their votes. The labor union receiving the certified list of employees in the bargaining unit, or where necessary, the
majority of the valid votes cast shall be certified as the exclusive bargaining payrolls covering the members of the bargaining unit at the time of the filing
agent of all the workers in the unit. When an election which provides for of the petition.
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 Section 3
receiving the two highest number of votes: Provided, that the total number Waiver of right to be heard. Failure of any party to appear during the pre-
of votes for all contending unions is at least fifty percent (50%) of the election conference despite notice shall be considered as a waiver of its right
number of votes cast. At the expiration of the freedom period, the employer to be present and to question or object to any of the agreements reached in
shall continue to recognize the majority status of the incumbent bargaining the pre-election conference. However, this shall not deprive the non-
agent where no petition for certification election is filed. appearing party of the right to be furnished notices of and to attend
subsequent pre-election conferences.
Article 268
Petitions in Unorganized Establishments. In any establishment where there Section 4
is no certified bargaining agent, a certification election shall automatically Minutes of pre-election conference. The Election Officer shall keep the
be conducted by the Med-Arbiter upon the filing of a petition by any minutes of matters raised and agreed upon during the pre-election
legitimate labor organization, including a national union or federation which conference. The parties shall acknowledge the completeness and correctness
has already issued a charter certificate to its local/ chapter participating in of the entries in the minutes by affixing their signatures thereon. Where any
the certification election or a local/ chapter which has been issued a charter of the parties refuse to sign the minutes, the Election Officer shall note such
certificate by the national union or federation. In cases where the petition fact in the minutes, including the reason for refusal to sign the same. In all
was filed by a national union or federation, it shall not be required to cases, the parties shall be furnished a copy of the minutes.
disclose the names of the local chapter’s officers and members.
The pre-election conference shall be completed within thirty (30) days from
Article 271 the date of the first hearing.
Appeal from Certification Election Orders. Any party to an election may Section 5
appeal the order or results of the election as determined by the Med-Arbiter
Qualification of voters; inclusion-exclusion. All employees who are
directly to the Secretary of Labor and Employment on the ground that the
members of the appropriate bargaining unit sought to be represented by the
rules and regulations or parts thereof established by the Secretary of Labor
petitioner at the time of the issuance of the order granting the conduct of a
and Employment for the conduct of the election have been violated. Such
certification election shall be eligible to vote. An employee who has been
appeal shall be decided within fifteen (15) calendar days.
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
NATURE OF PROCEEDING / EFFECT OF PRIVATE the conduct of a certification election shall be considered a qualified voter,
AGREEMENT unless his/her dismissal was declared valid in a final judgment at the time of
- A Certification Election is the fairest and most effective way of the conduct of the certification election.
determining which labor organization can truly represent the In case of disagreement over the voters' list or over the eligibility of voters,
working force, and the will of the majority in an honest and free all contested voters shall be allowed to vote. But their votes shall be
selection is controlling. If the desired goal is to execute a CBA to segregated and sealed in individual envelopes in accordance with Sections 10
protect the workers, then a CE is the most appropriate means to and 11 of this Rule.
attain that end.99 Section 6
- It is essential that there be no collusion against this objective Posting of Notices. The Election Officer shall cause the posting of notice of
between an unscrupulous management and a union covertly election at least ten (10) days before the actual date of the election in two (2)
supporting it while professing its loyalty to labor, or at least that the most conspicuous places in the company premises. The notice shall contain:
hopes of labor be not frustrated because of its representation by a (a) the date and time of the election;
union that does not enjoy its approval and support. It is therefore (b) names of all contending unions;
sound policy that any doubt regarding the real representation of the (c) the description of the bargaining unit and the list of eligible and
workers be resolved in favor of the holding of the certification challenged voters.
election. This is preferable to the suppression of the voice of the 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
workers through the prissy observance of technical rules that will
unions of the employer.
exalt procedure over substantial justice.100
Section 7
PROCESS AND PROCEDURE
Secrecy and sanctity of the ballot. To ensure secrecy of the ballot, the
PRELIMINARY CONFERENCE Election Officer, together with the authorized representatives of the
CONSENT ELECTION contending unions and the employer, shall before the start of the actual
voting, inspect the polling place, the ballot boxes and the polling booths.
ORDER/DECISION ON THE PETITION
DENIAL OF THE PETITION; GROUNDS Section 8
APPEAL Preparation of ballots. The Election Officer shall prepare the ballots in
English and Filipino or the local dialect. The number of ballots should
CONDUCT OF CERTIFICATION ELECTION correspond to the number of voters in the bargaining unit plus a reasonable
number of extra ballots for contingencies. All ballots shall be signed at the
Book V, Rule IX, Section 1 back by the Election Officer and an authorized representative each of the
Raffle of the case. Within twenty-four (24) hours from receipt of the notice contending unions. A party who refuses or fails to sign the ballots waives its
of entry of final judgment granting the conduct of a certification election, the right to do so and the Election Officer shall enter the fact of refusal or failure
Regional Director shall cause the raffle of the case to an Election Officer who and the reason therefore in the records of the case.
shall have control of the pre-election conference and election proceedings.
Section 9
Marking of votes. The voter must put a cross or check mark in the square
opposite the name of the union of his choice or "No Union" if he/she does not
99 PLUM FEDERATION V NORIEL (1982) want to be represented by any union.
100 PORT WORKERS UNION OF THE PHILIPPINES V LAGUESMA (1992)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 34 79
C. Certification Election: Process || conduct of certification election || PRE-ELECTION CONFERENCE
« Note: »

If a ballot is torn, defaced or left unfilled in such a manner as to create doubt another certification or consent election within fifteen (15) days from receipt
or confusion or to identify the voter, it shall be considered spoiled. If the of the motion and cause the posting of the notice of certification election at
voter inadvertently spoils a ballot, he/she shall return it to the Election least ten (10) days prior to the scheduled date of election in two (2) most
Officer who shall destroy it and give him/her another ballot. conspicuous places in the establishment. The same guidelines and list of
voters shall be used in the election.
Section 10
Procedure in the challenge of votes. The ballot of the voter who has been Section 19
properly challenged during the pre-election conferences, shall be placed in Proclamation and certification of the result of the election. Within twenty-
an envelope which shall be sealed by the Election Officer in the presence of four (24) hours from final canvass of votes, there being a valid election, the
the voter and the representatives of the contending unions. The Election Election Officer shall transmit the records of the case to the Med-Arbiter
Officer shall indicate on the envelope the voter’s name, the union challenging who shall, within the same period from receipt of the minutes and results of
the voter, and the ground for the challenge. The sealed envelope shall then election, issue an order proclaiming the results of the election and certifying
be signed by the Election Officer and the representatives of the contending the union which obtained a majority of the valid votes cast as the sole and
unions. The Election Officer shall note all challengers in the minutes of the exclusive bargaining agent in the subject bargaining unit, under any of the
election proceedings and shall have custody of all envelopes containing the following conditions:
challenged votes. The envelopes shall be opened and the question of (a) no protest was filed or, even if one was filed, the same was not perfected
eligibility shall be passed upon by the Mediator-Arbiter only if the number of within the five-day period for perfection of the protest;
segregated votes will materially alter the results of the election. (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
Section 11
elections.
On-the-spot questions. The Election Officer shall rule on any question
The winning union shall have the rights, privileges and obligations of a duly
relating to and raised during the conduct of the election. In no case, however,
certified collective bargaining agent from the time the certification is issued.
shall the election officer rule on any of the grounds for challenge specified in
the immediately preceding section Where majority of the valid votes cast results in "No Union" obtaining the
majority, the Med-Arbiter shall declare such fact in the order.
Section 12
Section 20
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 Appeal; Finality of Decision. The decision of the Med-Arbiter may be
the minutes of the election proceedings. Protests not so raised are deemed appealed to the Secretary within ten (10) days from receipt by the parties of a
waived. copy thereof.
The protesting party must formalize its protest with the Med-Arbiter, with The appeal shall be under oath and shall consist of a memorandum of appeal,
specific grounds, arguments and evidence, within five (5) days after the close specifically stating the grounds relied upon by the appellant with the
of the election proceedings. If not recorded in the minutes and formalized supporting arguments and evidence.
within the prescribed period, the protest shall be deemed dropped. When no appeal is filed within the ten-day period, the order/decision shall
become final and executory and the Med-Arbiter shall enter this fact into the
Section 13 records of the case.
Canvassing of votes. The votes shall be counted and tabulated by the
Election Officer in the presence of the representatives of the contending Section 21
unions. Upon completion of the canvass, the Election Officer shall give each Where to file Appeal. The memorandum of appeal shall be filed in the
representative a copy of the minutes of the election proceedings and results Regional Office where the petition originated, copy furnished the contending
of the election. The ballots and the tally sheets shall be sealed in an envelope unions and the employer, as the case may be. Within twenty-four (24) hours
and signed by the Election Officer and the representatives of the contending from receipt of the appeal, the Regional Director shall cause the transmittal
unions and transmitted to the Med-Arbiter, together with the minutes and thereof together with the entire records of the case to the Office of the
results of the election, within twenty-four (24) hours from the completion of Secretary.
the canvass.
Section 22
Where the election is conducted in more than one region, consolidation of
results shall be made within fifteen (15) days from the conduct thereof. Period to Reply. A reply to the appeal may be filed by any party to the
petition within ten (10) days from receipt of the memorandum of appeal. The
Section 14 reply shall be filed directly to the Office of the Secretary.
Conduct of election and canvass of votes. The election precincts shall open
Section 23
and close on the date and time agreed upon during the pre-election
conference. The opening and canvass shall proceed immediately after the Decision of the Secretary. The Secretary shall have fifteen (15) days from
precincts have closed. Failure of the representative/s of the contending receipt of the entire records of the petition within which to decide the appeal.
unions to appear during the election proceedings and canvass of votes shall The decision of thee Secretary shall become final and executory after ten (10)
be considered a waiver to be present and to question the conduct thereof. days from receipt thereof by the parties. No Motion for Reconsideration of
the decision shall be entertained.
Section 15
Section 24
Certification of Collective Bargaining Agent. The union which obtained a
majority of the valid votes cast shall be certified as the sole and exclusive Transmittal of records to the Regional Office. Within forty-eight (48) hours
bargaining agent of all the employees in the appropriate bargaining unit from notice of receipt of decision by the parties and finality of the decision,
within five (5) days from the day of the election, provided no protest is the entire records of the case shall be remanded to the Regional Office of
recorded in the minutes of the election. origin for implementation. Implementation of the decision shall not be
stayed unless restrained by the appropriate court.
Section 16
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 PRE-ELECTION CONFERENCE
there are no material challenged votes, the Election Officer shall declare a VOTER LIST AND VOTERS
failure of election in the minutes of the election proceedings. - EEs who have been improperly laid-off but who have a present,
Section 17 unabandoned right to or expectation of re-employment, are eligible
Effect of failure of election. A failure of election shall not bar the filing of a to vote in CEs.101
motion for the immediate holding of another certification or consent election
within six (6) months from date of declaration of failure of election.

Section 18
Action on the motion. Within twenty-four (24) hours from receipt of the
motion, the Election Officer shall immediately schedule the conduct of
101 PHIL. FRUITS & VEGETABLES INDUSTRIES, INC V TORRES (1992)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 35 79
C. Certification Election: Process || where no petition for certification election is filed || POSTING NOTICE
« Notes: »

POSTING NOTICE voters of the BU since even ineligible EEs by reason of their
membership in the cooperative were allowed to vote.
Book V, Rule I, Section 1 (o)
“Election Officer” refers to an officer of the Bureau or Labor Relations Division
in the Regional Office authorized to conduct certification elections, election of
union officers and other forms of elections and referenda in accordance with NULLIFICATION OF ELECTION PERIOD
Rule XII, Sections 2-5 of these Rules. - To invalidate CE, competent and credible proof must be shown
o It is precisely because respect must be accorded to the will of
VOTING DAY/VENUE labor thus ascertained that a general allegation of duress is not
CONDUCT OF ELECTION sufficient to invalidate a certification election; it must be shown
- The only instance when the ER may be involved in that process is by competent and credible proof. That is to give substance to the
when it is obliged to file a PCE on its workers’ request to bargain principle of majority rule, one of the basic concepts of a
collectively pursuant to Art.258 (now 269), LC. After the order for CE democratic polity105
issues, the ER’s involvement ceases, and it becomes a neutral
bystander.102 RUN-OFF ELECTION
Book V, Rule X, Section 1
CHALLENGING OF VOTES AND ON THE SPOT QUESTIONS Run-Off Elections; When Proper. When an election which provides for three
Book V, Rule I, Section 1 (p) (3) or more choices results in none of the contending unions receiving a
“Election Proceedings” refer to the period during a certification election, majority of the valid votes cast, and there are no objectives or challenges
consent or run-off election and election of union officers, starting from the which if sustained can materially alter the results, the Election Officer shall
opening to the closing of the polls, including the counting, tabulation and motu proprio conduct a run-off election within ten (10) days from the close
consolidation of votes, but excluding the period for the final determination of of the election proceedings between the labor unions receiving the two
the challenged votes and the canvass thereof. 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.
“No Union” shall not be a choice in the run-off election. Notice of run-off
PROTEST PERIOD elections shall be posted by the Election Officer at least five (5) days before
the actual date of run-off elections.
DHL-URFA-FFW V BUKLOD (2004)
EEs filed a protest after the protest period because they found out Section 2
F: that their union misrepresented their independence (that it was Qualification of Voters. The same voters’ list used in the certification
independent when it was actually affiliated with FFW) election shall be used in the run-off election. The ballots in the run- off
I: WON such protest will be allowed election shall provide as choices the unions receiving the highest and second
YES. Even though the EEs only found out about the highest number of the votes cast. The labor union receiving the greater
misrepresentation of their union after the protest period, they were number of valid votes cast shall be certified as the winner, subject to Section
still allowed to file a petition to invalidate the CE, since they could 20, Rule IX.
R:
not have had sufficient time between the misrepresentation and the
election to check the truth of its claims, especially since it was made
EFFECT OF NON-FILING OF PETITION FOR CERTIFICATION
by the union officers--the president no less.
ELECTION
Article 267
REQUISITE FOR VALIDITY OF ELECTION / FAILURE OF ELECTION
Representation issue in organized establishments. In organized
Book V, Rule I, Section 1 (q) establishments, when a verified petition questioning the majority status of the
“Eligible Voter” refers to a voter belonging to the appropriate bargaining unit incumbent bargaining agent is filed before the Department of Labor and
that is the subject of the petition for certification election. Employment within the sixty-day period before the expiration of the collective
bargaining agreement, the Med-Arbiter shall automatically order an election
Notes: by secret ballot when the verified petition is supported by the written consent
- “Double Majority Rule” of at least twenty-five percent (25%) of all the employees in the bargaining
o For there to be a valid certification election, majority of the 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
bargaining unit must have voted AND the winning union must
have cast their votes. The labor union receiving the majority of the valid votes
have garnered majority of the valid votes cast.103 cast shall be certified as the exclusive bargaining agent of all the workers in the
o 1st Majority: Majority of eligible voters cast their vote. unit. When an election which provides for three or more choices results in no
o 2nd Majority: The winning union must garner majority of the valid choice receiving a majority of the valid votes cast, a run-off election shall be
votes cast. conducted between the labor unions receiving the two highest number of
§ Majority = 50% + 1 votes: Provided, that the total number of votes for all contending unions is at
- To be sure, the conduct of a certification election has a two-fold least fifty percent (50%) of the number of votes cast. At the expiration of the
objective: to determine the appropriate bargaining unit and to freedom period, the employer shall continue to recognize the majority status
of the incumbent bargaining agent where no petition for certification election
ascertain the majority representation of the bargaining
is filed.
representative, if the employees desire to be represented at all by
anyone.104
WHERE NO PETITION FOR CERTIFICATION ELECTION IS
BENGUET ELECTRIC V CALLEJA (1989) FILED
In a PCE within a cooperative, a total of 83 employees voted when
F: actually, only 37 were non-members of the cooperative (which are Article 253
eligible voters, based on the MA’s findings) Right of employees in the public service. Employees of government
I: WON the PCE was validly held corporations established under the Corporation Code shall have the right to
NO. The general rule is that to have a valid election, at least a organize and to bargain collectively with their respective employers. All other
employees in the civil service shall have the right to form associations for
R: majority of eligible voters must have cast their votes. In this case, it
purposes not contrary to law.
cannot be determined whether BELU was duly elected by the eligible

102 HERCULES V SOLE (1992)


103 NUWHRAIN V SOLE (2009)
104
Id. 105 UNITED EMPLOYEES V NORIEL (1975)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 36 79
D. Certification of Designated Majority Union || one-year bar rule || EFFECT OF NON-FILING OF PETITION FOR CERTIFICATION ELECTION
« Notes: »

Article 256 E. Bars to Certification Election


Non-abridgment of right to self-organization. It shall be unlawful for any
person to restrain, coerce, discriminate against or unduly interfere with ONE-YEAR BAR RULE
employees and workers in their exercise of the right to self-organization. Such - The one-year or the certification year prohibition is counted from
right shall include the right to form, join, or assist labor organizations for the the date of resolution declaring the union as the exclusive
purpose of collective bargaining through representatives of their own choosing bargaining representative. It is the year when the certified union is
and to engage in lawful concerted activities for the same purpose or for their required to negotiate with the employer, and certification election is
mutual aid and protection, subject to the provisions of Article 264 of this Code.
prohibited.106
- The phrase "final certification election result" (where the 1 year bar
will be counted from) means that there was an actual conduct of
D. Certification of Designated Majority election i.e. ballots were cast and there was a counting of votes.107
Union
Article 266 NEGOTIATION BAR RULE
Exclusive Bargaining Representation and Workers’ Participation in Policy and
DEADLOCK BAR RULE
Decision-Making. The labor organization designated or selected by the
- The Deadlock Bar Rule simply provides that a petition for
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 certification election can only be entertained if there is no pending
collective bargaining. However, an individual employee or group of employees bargaining deadlock submitted to conciliation or arbitration or had
shall have the right at any time to present grievances to their employer. become the subject of a valid notice of strike or lockout. The
principal purpose is to ensure stability in the relationship of the
ILO Convention No. 135
workers and the management.108
Article 1
- “Deadlock”
Workers' representatives in the undertaking shall enjoy effective protection
o Counteraction of things producing entire stoppage
against any act prejudicial to them, including dismissal, based on their status or
activities as a workers' representative or on union membership or participation - “Impasse”
in union activities, in so far as they act in conformity with existing laws or o It presupposes reasonable effort at good faith bargaining, which
collective agreements or other jointly agreed arrangements. despite noble intentions, does not conclude in agreement
between the parties.109
Article 2
CONTRACT BAR RULE
1. Such facilities in the undertaking shall be afforded to workers'
representatives as may be appropriate in order to enable them to carry out
- A mere filing of a PCE does not ipso facto justify the suspension of
their functions promptly and efficiently. negotiation by the employer. The PCE must comply with the
2. In this connection account shall be taken of the characteristics of the provisions of the Labor Code first - the election must be filed during
industrial relations system of the country and the needs, size and the sixty-day freedom period.110
capabilities of the undertaking concerned. - Strictly speaking, what is prohibited is the filing of PCE outside the
3. The granting of such facilities shall not impair the efficient operation of the 60-day freedom period. If at all, the signing of the authorization to
undertaking concerned. file a CE was merely preparatory to the filing of PCE, or an exercise
Article 3 of respondents’ right to self-organization.111
For the purpose of this Convention the term workers' representatives means
persons who are recognised as such under national law or practice, whether
they are
F. Opposition; Suspension of
a) trade union representatives, namely, representatives designated or elected Certification Election: Prejudicial
by trade unions or by members of such unions; or Question
b) elected representatives, namely, representatives who are freely elected by - Labor claims cannot proceed independently of a bankruptcy
the workers of the undertaking in accordance with provisions of national liquidation proceeding, since these claims "would spawn needless
laws or regulations or of collective agreements and whose functions do not
controversy, delays, and confusion." With more reason, allowing
include activities which are recognised as the exclusive prerogative of trade
unions in the country concerned. labor claims to continue in spite of a SEC suspension order in a
rehabilitation case would merely lead to such results.112
Article 4
National laws or regulations, collective agreements, arbitration awards or
court decisions may determine the type or types of workers' representatives G. Effect of Petition for Cancellation of
which shall be entitled to the protection and facilities provided for in this Trade Union Registration
Convention.
Article 245
Article 5 Effect of a Petition for Cancellation of Registration. A Petition for
Where there exist in the same undertaking both trade union representatives cancellation of union registration shall not suspend the proceedings for
and elected representatives, appropriate measures shall be taken, wherever certification election nor shall it prevent the filing of a petition for certification
necessary, to ensure that the existence of elected representatives is not used election.
to undermine the position of the trade unions concerned or their
representatives and to encourage co-operation on all relevant matters
between the elected representatives and the trade unions concerned and their
representatives.

Article 6
Effect may be given to this Convention through national laws or regulations or
collective agreements, or in any other manner consistent with national
practice.
106 KMP V TRAJANO (1991)
107 R TRANSPORT V LAGUESMA (1993)
108 NACUSIP V TRAJANO (1992)

109 DIVINE WORD V SOLE (1992)

110 COLEGIO DE SAN JUAN DE LETRAN V AEFL (2000)

111 PICOP V DEQUILLA (2011)


112 LINGKOD MANGGAGAWA NG RUBBERWORLD V RUBBERWORLD (2007)

_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 37 79
A. General Concept || Policy Declaration || EFFECT OF NON-FILING OF PETITION FOR CERTIFICATION ELECTION
« Policy »

Collective
the parties to submit their case to a voluntary arbitrator.

Article 261
Duty to bargain collectively in the absence of collective bargaining

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
CONCEPT, PROCEDURES AND collectively in accordance with the provisions of this Code.

ISSUES Article 262


Meaning of duty to bargain collectively. The duty to bargain collectively
A. General Concept means the performance of a mutual obligation to meet and convene promptly
and expeditiously in good faith for the purpose of negotiating an agreement
POLICY DECLARATION with respect to wages, hours of work and all other terms and conditions of
employment including proposals for adjusting any grievances or questions
Article 218 A (a)
arising under such agreement and executing a contract incorporating such
Policy. To promote and emphasize the primacy of free collective bargaining agreements if requested by either party but such duty does not compel any
and negotiations, including voluntary arbitration, mediation and conciliation, as party to agree to a proposal or to make any concession.
modes of settling labor or industrial disputes;
Article 263
Article 218 B
Duty to bargain collectively when there exists a collective bargaining
Policy. To encourage a truly democratic method of regulating the relations agreement. When there is a collective bargaining agreement, the duty to
between the employers and employees by means of agreements freely entered bargain collectively shall also mean that neither party shall terminate nor
into through collective bargaining, no court or administrative agency or official modify such agreement during its lifetime. However, either party can serve a
shall have the power to set or fix wages, rates of pay, hours of work or other written notice to terminate or modify the agreement at least sixty (60) days
terms and conditions of employment, except as otherwise provided under this prior to its expiration date. It shall be the duty of both parties to keep the
Code. 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
Article XIII, Section 3, 2nd par. (1987 Constitution)
is reached by the parties.
It shall guarantee the rights of all workers to self-organization, collective
bargaining and negotiations, and peaceful concerted activities, including the Article 250 (c)
right to strike in accordance with law. They shall be entitled to security of Rights of legitimate labor organizations.
tenure, humane conditions of work, and a living wage. They shall also To be furnished by the employer, upon written request, with its annual audited
participate in policy and decision-making processes affecting their rights and financial statements, including the balance sheet and the profit and loss
benefits as may be provided by law. 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
DEFINITION as the sole and exclusive bargaining representative of the employees in the
- Negotiations towards a collective agreement.113 bargaining unit, or within sixty (60) calendar days before the expiration of the
existing collective bargaining agreement, or during the collective bargaining
NATURE AND PURPOSE negotiation;
- Designed to stabilize the relation between labor and management
and to create a climate of sound and stable industrial peace.114 Article 258 (g)
Unfair labor practices of employers.
RULES INTERPRETATION To violate the duty to bargain collectively as prescribed by this Code;

WAIVER Article 259 (c)


- Nothing in the law prohibits the parties from waiving or suspending Unfair labor practices of labor organizations.
the mandatory timetables and agreeing on the remedies to enforce To violate the duty, or refuse to bargain collectively with the employer,
the same.115 provided it is the representative of the employees;

Article 246 (f) (before amendment of RA 9481)


B. Duty to Bargain Grounds for cancellation of union registration.
Entering into collective bargaining agreements which provide terms and
Article 260
conditions of employment below minimum standards established by law;
Procedure in collective bargaining. The following procedures shall be observed
in collective bargaining: Policy
(a) When a party desires to negotiate an agreement, it shall serve a written - The duty to bargain requires that the parties deal with each other
notice upon the other party with a statement of its proposals. The other with open and fair minds. A sincere endeavor to overcome obstacles
party shall make a reply thereto not later than ten (10) calendar days from
and difficulties that may arise, so that employer-employee relations
receipt of such notice;
(b) Should differences arise on the basis of such notice and reply, either party
may be stabilized and industrial strife eliminated, must be
may request for a conference which shall begin not later than ten (10) apparent.116
calendar days from the date of request. Notes:
(c) If the dispute is not settled, the Board shall intervene upon request of
- As long as the company’s exercise of its prerogative is in good faith
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 to advance its interest and not for purpose of defeating or
subpoenas requiring the attendance of the parties to such meetings. It shall circumventing the rights of employees under the law or a valid
be the duty of the parties to participate fully and promptly in the agreement, such exercise will be upheld.117
conciliation meetings the Board may call; - To avoid “blue-sky bargaining” and “Surface bargaining”
(d) During the conciliation proceedings in the Board, the parties are prohibited o Blue-sky bargaining – negotiating for very huge concessions.
from doing any act which may disrupt or impede the early settlement of o Surface bargaining – going through the motions of negotiating
the disputes; and
without any legal intent to reach an agreement.118
(e) The Board shall exert all efforts to settle disputes amicably and encourage

113 KIOK LOY V NLRC (1986) 116 P.I. MANUFACTURING V PIMSF (2008)
114
Id. 117 UNION OF FILIPRO EMPLOYEES-DRUG V. NESTLE PHILS. (2006)
115 RIVERA V ESPIRITU (2002) 118 STANDARD CHARTERED BANK EES UNION V CONFESOR (2004)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 38 79
C. Bargaining Procedure || Private Procedure || EFFECT OF NON-FILING OF PETITION FOR CERTIFICATION ELECTION
« Notes: »

C. Bargaining Procedure Book V, Rule XVI, Section 3


Book V, Rule XVI, Section 1 When Single Enterprise Bargaining Available. Any voluntarily recognized or
certified labor union may demand negotiations with its employer for terms and
Policy. It is the policy of the State to promote and emphasize the primacy of
conditions for work covering employees in the bargaining unit concerned.
free and responsible exercise of the right to self-organization and collective
bargaining, either through single enterprise level negotiations or through the Section 4
creation of a mechanism by which different employers and recognized or
Procedure in Single Enterprise Bargaining. A recognized or certified labor
certified labor unions in their establishments bargain collectively.
union that desires to negotiate with its employer shall submit such intentions
Section 2 in writing to the employer, together with its proposals for collective bargaining.
Disclosure of information. In collective bargaining, the parties shall, at the The recognized or certified labor union and its employer may adopt such
request of either of them, make available such up-to-date financial procedures and processes they may deem appropriate and necessary for the
information on the economic situation of the undertaking, which is normally early termination of their negotiations. They shall name their respective
submitted to government agencies, as is material and necessary for meaningful representatives to the negotiation, schedule the number and frequency of
negotiations. Where the disclosure of some of this information could be meetings, and agree on wages, benefits and other terms and conditions of work
prejudicial to the undertaking, its communication may be made a condition for all employees covered in the bargaining unit.
upon a commitment that it would be regarded as confidential to the extent
Section 5
required. The information to be made available may be agreed upon between
the parties to collective bargaining. When multi-employer Bargaining Available. A legitimate labor union and
employers may agree in writing to come together for the purpose of collective
Section 7 bargaining provided:
Posting and Registration of Collective Bargaining Agreement. Two (2) signed (a) only legitimate labor unions who are incumbent exclusive bargaining
copies of collective bargaining agreement reached through multi-employer agent may participate and negotiate in multi-employer bargaining;
bargaining shall be posted for at least 5 days in two conspicuous areas in (b) only employers with counterpart legitimate labor unions who are
workplace of the employer units concerned. Said collective bargaining incumbent exclusive bargaining agents may participate and negiotiate in
agreement shall affect only those employees in the bargaining unit who have multi-employer bargaining; and
ratified it. (c) only those legitimate labor unions who pertain to employer units who
The same collective bargaining agreement shall be registered with the consent to multi-employer bargaining may participate in multi-employer
Department in accordance with Rule XVII. bargaining.

Section 6
PRIVATE PROCEDURE Procedure in Multi-employer Bargaining. Multi-employer bargaining may be
initiated by the labor unions or by the employers.
Article 261
(a) Legitimate labor unions who desire to negotiate with their employers
Duty to bargain collectively in the absence of collective bargaining collectively shall execute a written agreement among themselves, which
agreements. In the absence of an agreement or other voluntary arrangement shall contain the following:
providing for a more expeditious manner of collective bargaining, it shall be the (2) the names of the labor unions who desire to avail of multi-employer
duty of employer and the representatives of the employees to bargain bargaining;
collectively in accordance with the provisions of this Code. (3) each labor union in the employer unit;
(4) the fact that each of the labor unions are the incumbent exclusive
bargaining agents for their respective employer units;
LABOR CODE PROCEDURE (5) the duration of the collective bargaining agreements, if any, entered
Article 260 into by each labor union with their respective employers.
Legitimate labor unions who are members of the same registered federation,
Procedure in collective bargaining. The following procedures shall be observed
national or industry union are exempt from execution of this written
in collective bargaining:
agreement.
(a) When a party desires to negotiate an agreement, it shall serve a written
(b) The legitimate labor unions who desire to bargain with multi-employers
notice upon the other party with a statement of its proposals. The other
shall send a written notice to this effect to each employer concerned. The
party shall make a reply thereto not later than ten (10) calendar days from
written agreement stated in the preceding paragraph, or the certificates
receipt of such notice;
of registration of the federation, national or industry union, shall
(b) Should differences arise on the basis of such notice and reply, either party
accompany said notice.
may request for a conference which shall begin not later than ten (10)
Employers who agree to group themselves or use their existing associations to
calendar days from the date of request.
engage in multi-employer bargaining shall send a written notice to each of
(c) If the dispute is not settled, the Board shall intervene upon request of
their counterpart legitimate labor unions indicating their desire to engage in
either or both parties or at its own initiative and immediately call the
multi-employer bargaining. Said notice shall indicate the following:
parties to conciliation meetings. The Board shall have the power to issue
subpoenas requiring the attendance of the parties to such meetings. It shall (1) the names of the employers who desire to avail of multi-employer
be the duty of the parties to participate fully and promptly in the bargaining;
conciliation meetings the Board may call; (2) their corresponding legitimate labor organizations;
(d) During the conciliation proceedings in the Board, the parties are prohibited (3) the fact that each corresponding legitimate union is any incumbent
from doing any act which may disrupt or impede the early settlement of exclusive bargaining agent;
the disputes; and (4) the duration of the current collective bargaining agreement, if any,
(e) The Board shall exert all efforts to settle disputes amicably and encourage entered into by each employer with the counterpart legitimate labor
the parties to submit their case to a voluntary arbitrator. union.
(c) Each employer or concerned labor union shall express its willingness or
Article 263 refusal to participate in multi-employer bargaining in writing, addressed
Duty to bargain collectively when there exists a collective bargaining to its corresponding exclusive bargaining agent or employer. Negotiations
agreement. When there is a collective bargaining agreement, the duty to may commence only with regard to respective employers and labor unions
bargain collectively shall also mean that neither party shall terminate nor who consent to participate in multi-employer bargaining;
modify such agreement during its lifetime. However, either party can serve a (d) During the course of negotiations, consenting employers and the
written notice to terminate or modify the agreement at least sixty (60) days corresponding legitimate labor unions shall discuss and agree on the
prior to its expiration date. It shall be the duty of both parties to keep the following:
status quo and to continue in full force and effect the terms and conditions of (1) the manner by which negotiations shall proceed;
the existing agreement during the 60-day period and/or until a new agreement (2) the scope and coverage of negotiations and the agreement; and
is reached by the parties. (3) where appropriate, the effect of the negotiations on current
agreements or conditions of employment among the parties.

_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 39 79
D. Bargainable Issues || Conciliation/Preventive Mediation || EFFECT OF NON-FILING OF PETITION FOR CERTIFICATION ELECTION
« Note: »

CONCILIATION/PREVENTIVE MEDIATION Book V, Rule XXII, Section 1


Article 238 Conciliation of Labor-Management Disputes. The board may, upon request of
Privileged communication. Information and statements made at conciliation either of both parties or upon its own initiative, provide conciliation-mediation
proceedings shall be treated as privileged communication and shall not be used services to labor disputes other than notices of strikes or lockouts. Conciliation
as evidence in the Commission. Conciliators and similar officials shall not cases which are not subject of notices of strike or lockout shall be docketed as
testify in any court or body regarding any matters taken up at conciliation preventive mediation cases.
proceedings conducted by them.
Section 2
Article 260 (c) Privileged communication. Information and statements given in confidence at
If the dispute is not settled, the Board shall intervene upon request of either or conciliation proceedings shall be treated as privileged communications.
both parties or at its own initiative and immediately call the parties to Conciliators and similar officials shall not testify in any court or body regarding
conciliation meetings. any matter taken up at conciliation proceedings conducted by them.

Article 260 (d) Section 9


During the conciliation proceedings in the Board, the parties are prohibited Action on Notice. Upon receipt of the notice, the regional branch of the Board
from doing any act which may disrupt or impede the early settlement of the shall exert all efforts at mediation and conciliation to enable the parties to
disputes settle the dispute amicably. The regional branch of the board may, upon
agreement of the parties, treat a notice as a preventive mediation case. It shall
Article 260 (e) also encourage the parties to submit the dispute to voluntary arbitration.
The Board shall exert all efforts to settle disputes amicably and encourage the During the proceedings, the parties shall not do any act which may disrupt or
parties to submit their case to a voluntary arbitrator impede the early settlement of the dispute. They are obliged, as part of their
duty to bargain collectively in good faith and to participate full and promptly in
Article 218 A (c) the conciliation meetings called by the regional branch of the Board.
Policy. To foster the free and voluntary organization of a strong and united A notice, upon agreement of the parties, may be referred to alternative modes
labor movement. of dispute resolution, including voluntary arbitration.
EO 251, Section 4
National Conciliation and Mediation Board. A National Conciliation and
Mediation Board, herein referred to as the "Board", is hereby created and which
D. Bargainable Issues
shall absorb the conciliation mediation and voluntary arbitration functions of Article 262
the Bureau of Labor of Relations in accordance with Section 29 (c) hereof. The Meaning of duty to bargain collectively. The duty to bargain collectively
Board shall be composed of an Administrator and two (2) Deputy means the performance of a mutual obligation to meet and convene promptly
Administrators. It shall be an attached agency under the administrative and expeditiously in good faith for the purpose of negotiating an agreement
supervision of the Secretary of Labor and Employment. with respect to wages, hours of work and all other terms and conditions of
The Administrators and the Deputy Administrators shall be appointed by the employment including proposals for adjusting any grievances or questions
President upon recommendation of the Secretary of Labor and Employment. arising under such agreement and executing a contract incorporating such
There shall be as many Conciliators-Mediators as the needs of the public agreements if requested by either party but such duty does not compel any
service require, who shall have at least three (3) years of experience in handling party to agree to a proposal or to make any concession.
labor relations and who shall be appointed by the Secretary.
Note:
The Board shall have its main office in Metropolitan Manila and its
- Parties to a CBA may not, by themselves, fix a wage lower than the
Administrators shall exercise supervision over Conciliators-Mediators and all
its personnel. It shall establish as many branches as there are administrative minimum.119
regions in the country, with a many Conciliator-mediators as shall be necessary
for its effective operation. Each branch of the Board shall be headed by an
Executive Conciliator-Mediator.
E. Collective Bargaining Agreement
The Board shall have the following functions: DEFINITION
(a) Formulate policies, programs, standards, procedures, manuals of Book V, Rule I, Section 1 (j)
operation and guidelines pertaining to effective mediation and conciliation
“Collective Bargaining Agreement” refers to a contract between a legitimate
of labor disputes;
labor union and the employer concerning wages, hours of work and other
(b) Perform preventive mediation and conciliation functions;
terms and conditions of employment in a bargaining unit.
(c) Coordinate and maintain linkages with other sectors of institutions, and
other government authorities concerned with matters relative to the Note:
prevention and settlement of labor disputes;
- Thus, where the CBA is clear and unambiguous, it becomes the law
(d) Formulate policies, plans, programs, standards, procedures, manuals of
operation and guidelines pertaining to the promotion of cooperative and between the parties and compliance therewith is mandated by the
non-adversarial schemes, grievance handling, voluntary arbitration and express policy of the law.120
other voluntary modes of dispute settlements;
(e) Administer the voluntary arbitration program; maintain/update a list of CONTENTS
voluntary arbitrations; compile arbitration awards and decisions; - The parties in a CBA may establish such stipulations, clauses, terms
(f) Provide counselling and preventive mediation assistance particularly in and conditions as they may deem convenient provided these are not
the administration of collective agreement; awards and decisions; contrary to law, morals, good customs, public order or public
(g) Monitor and exercise technical supervision over the Board programs being policy.121
implemented in the regional offices; and
(h) Perform such other functions as may be provided by law or assigned by BENEFICIARIES
the Secretary.
Article 266
A Tripartite Voluntary Arbitration Advisory Council is hereby created and Exclusive Bargaining Representation and Workers’ Participation in Policy and
attached to the National Conciliation and Mediation Board. The Tripartite Decision-Making. The labor organization designated or selected by the
Voluntary Arbitration Advisory Council shall advise the National Conciliation majority of the employees in an appropriate collective bargaining unit shall be
Board on matters pertaining to the promotion of voluntary arbitration as the the exclusive representative of the employees in such unit for the purpose of
preferred mode of dispute settlement. collective bargaining. However, an individual employee or group of employees
The Tripartite Voluntary Arbitration Advisory Council shall consist of the shall have the right at any time to present grievances to their employer.
Administrator of the National Conciliation and Mediation Board as Chairman,
one other member from the government, two members representing labor, and
two other members representing management. The members shall be 119 MANILA FASHIONS V NLRC (1996)
appointed by the President to serve for a term of three (3) years. The Chairman 120 TSPI CORP. V. TSPI CORP. EMPLOYEES UNION (2008)
and Members thereof shall serve without compensation. 121
Id.
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 40 79
E. Collective Bargaining Agreement || Contract Duration and Renewal || EFFECT OF NON-FILING OF PETITION FOR CERTIFICATION ELECTION
« Notes: »

Notes:
RATIFICATION
- The CBA is for the benefit of all the employees in the bargaining unit.
- The CBA agreed upon by the SEBA and the employer must be ratified
o Including those who are to be employed even after the expiration
by a majority of the workers in the bargaining unit.
of an old CBA while no new CBA has been agreed upon.122
o An exception to this rule is an arbitral award, which may be
- A collective bargaining agreement is the law between the parties.
registered even without such ratification.
The benefits granted therein extend to members and non-members
- A statement that the CBA was ratified by the majority of the
alike. Any other view is discriminatory, and is frowned upon by law.
employees in the bargaining unit of the employer or employers
The labor union that gets the majority vote as the exclusive
concerned is required in order to register the CBA.
bargaining representative doesn't act for its members alone but
represents all the employees in a bargaining unit.123
- The SEBA cannot bargain only for its own members as it would only REGISTRATION
fragment the employees and it will put the other non-members at a Book V, Rule XVII, Section 1
serious disadvantage, thus defeating the very essence and reason of Where to file. Within 30 days from execution of a collective bargaining
collective bargaining.124 agreement, the parties thereto shall submit two (2) duly signed copies of the
agreement to the Regional Office which issued the certificate of
CONTRACT DURATION AND RENEWAL registration/certificate of creation of chartered local of the labor union-party
Article 263 to the agreement. Where the certificate of creation of the concerned chartered
Duty to bargain collectively when there exists a collective bargaining local was issued by the Bureau, the agreement shall be filed with the Regional
agreement. It shall be the duty of both parties to keep the status quo and to Office which has jurisdiction over the place where it principally operates.
continue in full force and effect the terms and conditions of the existing Multi-employer collective bargaining agreement shall be filed with the Bureau.
agreement during the 60-day period and/or until a new agreement is reached
by the parties. Section 2
Requirements for registration. The application for CBA registration shall be
Article 264 accompanied by the original and two (2) duplicate copies of the following
Terms of a collective bargaining agreement. Any Collective Bargaining documents which must be certified under oath by the representative(s) of the
Agreement that the parties may enter into shall, insofar as the representation employer(s) and labor union(s) concerned:
aspect is concerned, be for a term of five (5) years. No petition questioning the (a) the collective bargaining agreement;
majority status of the incumbent bargaining agent shall be entertained and no (b) a statement that the collective bargaining agreement was posted in at
certification election shall be conducted by the Department of Labor and least two (2) conspicuous places in the establishment or establishments
Employment outside of the sixty-day period immediately before the date of concerned for at least five (5) days before its ratification; and
expiry of such five-year term of the Collective Bargaining Agreement. All other (c) a statement that the collective bargaining agreement was ratified by the
provisions of the Collective Bargaining Agreement shall be renegotiated not majority of the employees in the bargaining unit of the employer or
later than three (3) years after its execution. employers concerned.
No other document shall be required in the registration of collective bargaining
Book V, Rule XVII, Section 7
agreements.
Term of Representation Status; Contract bar rule. The representation status
of the incumbent exclusive bargaining agent which is a party to a duly Section 3
registered collective bargaining agreement shall be for a term of five (5) years Payment of Registration fee. The certificate of registration of the collective
from the date of the effectivity of the collective bargaining agreement. bargaining agreement shall be issued by the Regional Office upon payment of
The five-year representation status acquired by an incumbent bargaining the prescribed registration fee.
agent either through single enterprise collective bargaining or multi-employer
bargaining shall not be affected by a subsequent collective bargaining CBA AND 3RD PARTY APPLICABILITY
agreement executed between the same bargaining agent and the employer - As a general rule, there is no law requiring a bona fide purchaser of
during the same 5-year period.
the assets/enterprise to absorb in its employ the employees of the
Section 8 latter. However, although the purchaser of the assets of enterprise
Renegotiation of the Collective Bragaining Agreement – All provisions of the is not legally bound to absorb in its employ the employees of the
collective bargaining agreement, except the representation status of the seller of such assets or enterprise, the parties are liable to the
incumbent bargaining agent shall, as a matter of right, be renegotiated not employees if the transaction between the parties is colored or
later than 3 years after its execution. clothed with bad faith. The sale or disposition must be motivated
by good faith as an element of exemption from liability.126
Notes:
- Despite an agreement for a CBA with a life of more than five years, CBA AND DISAFFILIATION
either as an original provision or by amendment, the bargaining
Substitutionary Doctrine
union’s exclusive bargaining status is effective only for five years
- When there is a shift in the employees’ union allegiance after the
and can be challenged within sixty (60) days prior to the expiration
execution of the CBA with their employer, the employees can
of the CBA’s first five years.125
change their bargaining agent but the contract continues to bind
- All provisions of the collective bargaining agreement, except the
them up to its expiration date. However, they may bargain for the
representation status of the incumbent bargaining agent shall, as a
shortening of the expiration date.
matter of right, be renegotiated not later than 3 years after its
o The only consideration in this doctrine is the employees’ interest
execution.
in the existing bargaining agreement, and not those of the
agent’s. The true party in interest to the contract is the majority
of the employees. Any exclusive interest claimed by the agent is
defeasible at the will of the principal.127

122 NEW PACIFIC TIMBER AND SUPPLY CO., INC. V. NLRC (2000)
123 MACTAN WORKERS UNION V. ABOITIZ (1972)
124 PHIL HOTEL AND RESORT INC V MANILA DIAMOND HOTEL EE UNION (2006) 126 ALU V NLRC (1991)
125 FVC LABOR UNION V SANAMA (2009) 127 ELISCO-ELIROL V NORIEL (1977)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 41 79
F. Voluntary Arbitration || Interpretation, Administration and Enforcement || NATURE OF CONTRACT: LAW BETWEEN PARTIES
« Notes: »

INTERPRETATION, ADMINISTRATION AND ENFORCEMENT Article 272


NATURE OF CONTRACT: LAW BETWEEN PARTIES The parties to a Collective Bargaining Agreement shall include therein
- The CBA is the norm of conduct between the parties and compliance provisions that will ensure the mutual observance of its terms and conditions.
therewith is mandated by the express policy of the law.128 They shall establish a machinery for the adjustment and resolution of
grievances arising from the interpretation or implementation of their Collective
- Although the ER is authorized to issue rules and regulations, said
Bargaining Agreement and those arising from the interpretation or
rules and regulations should not impose new conditions which are enforcement of company personnel policies.
not contemplated in the CBA and should be within the realm of
reasonableness.129 Notes:
- Before a party is allowed to seek the intervention of the court, it is a
pre-condition that he should have availed of all the means of
LIBERAL CONSTRUCTION IN CASE OF DOUBT
administrative processes afforded him.
Article 1700 (CC)
o Hence, if a remedy within the administrative machinery can still
The relations between capital and labor are not merely contractual. They are so be resorted to by giving the administrative officer concerned
impressed with public interest that labor contracts must yield to the common
every opportunity to decide on a matter that comes within his
good. Therefore, such contracts are subject to the special laws on labor unions,
collective bargaining, strikes and lockouts, closed shop, wages, working jurisdiction, then such remedy should be exhausted first before
conditions, hours of labor and similar subjects. the court’s judicial power can be sought.134
- The main purpose of management and labor in adopting a procedure
Article 1702 (CC) in the settlement of their disputes is to prevent a strike or lockout.
In case of doubt, all labor legislation and all labor contracts shall be construed Thus, this procedure must be followed in its entirety if it is to
in favor of the safety and decent living for the laborer. achieve its objective.135
Notes:
- Liberal construction of the rules in favor of labor to affirm their F. Voluntary Arbitration
right to self-organization.130
o In case of doubt, all labor legislation and all labor contracts shall BASIS AND RATIONALE
be construed in favor of the safety and decent living for the Article 218 A (a)
laborer. Policy. To promote and emphasize the primacy of free collective bargaining
o RATIONALE: The relations between capital and labor are not and negotiations, including voluntary arbitration, mediation and conciliation, as
merely contractual but is impressed with public interest modes of settling labor or industrial disputes
- A CBA is not an ordinary contract – it is impressed with public Article 272
interest, thus, it must yield to the common good. As such, it must be All grievances submitted to the grievance machinery which are not settled
construed liberally rather than narrowly and technically, and the within seven (7) calendar days from the date of its submission shall
courts must place a practical and realistic construction upon it, automatically be referred to voluntary arbitration prescribed in the Collective
giving due consideration to the context in which it is negotiated and Bargaining Agreement.
purpose which it is intended to serve.131 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
GRIEVANCES
Arbitrator or panel of Voluntary Arbitrators, preferably from the listing of
- Grievances are any question by either the ER or EE or the union qualified Voluntary Arbitrators duly accredited by the Board. In case the parties
regarding the interpretation or application of the CBA or company fail to select a Voluntary Arbitrator or panel of Voluntary Arbitrators, the
personnel policies or any claim by either party that the other party Board shall designate the Voluntary Arbitrator or panel of Voluntary
is violating any provision of the CBA or company personnel policies. Arbitrators, as may be necessary, pursuant to the selection procedure agreed
- Non-gross violations of the CBA are mere grievances.132 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
Contract Infirmity by the parties as described above.
Contract Ambiguity
Minutes of the Negotiation ARBITRABLE ISSUES
- The Minutes reflect the proceedings and discussions undertaken in Article 273
the process of bargaining for worker benefits in the same way that Jurisdiction of Voluntary Arbitrators or Panel of Voluntary Arbitrators. The
the minutes of court proceedings show what transpired therein. Voluntary Arbitrator or panel of Voluntary Arbitrators shall have original and
Nothing is considered final until the parties have reached an exclusive jurisdiction to hear and decide all unresolved grievances arising from
agreement. the interpretation or implementation of the Collective Bargaining Agreement
o Where a proposal raised by a contracting party does not find print and those arising from the interpretation or enforcement of company
in the CBA, it is not part thereof and the proponent has no claim personnel policies referred to in the immediately preceding article. Accordingly,
violations of a Collective Bargaining Agreement, except those which are gross
to its implementation.133
in character, shall no longer be treated as unfair labor practice and shall be
Grievance Machinery/Voluntary Arbitration resolved as grievances under the Collective Bargaining Agreement. For
purposes of this article, gross violations of Collective Bargaining Agreement
Article 224 (c)
shall mean flagrant and/or malicious refusal to comply with the economic
Cases arising from the interpretation or implementation of collective provisions of such agreement.
bargaining agreements and those arising from the interpretation or
enforcement of company personnel policies shall be disposed of by the Labor Article 274
Arbiter by referring the same to the grievance machinery and voluntary Jurisdiction Over Other Labor Disputes. The Voluntary Arbitrator or panel of
arbitration as may be provided in said agreements. Voluntary Arbitrators, upon agreement of the parties, shall also hear and
decide all other labor disputes including unfair labor practices and bargaining
deadlocks.
128 DOLE V PAWIS NG MAKABAYANG OBRERO (2003)
129 BPI V BPI EES UNION (2012)
130 SMC V. MANDAUE PACKING PRODUCTS PLANT (2005)
131 CIRTEK EES LABOR UNION – FFW V CIRTEK ELECTRONICS (2011)
132 BPI EMPLOYEES UNION – DAVAO CITY – FUBU V. BPI (2013) 134 METRO DRUG DSTRIBUTION INC. V MDCEA (2005)
133 SAMAHAN NG MANGGAGAWA SA TOP FORM MFG. V NLRC (1998) 135 UNIVERSITY OF SAN AGUSTIN V CA (2006)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 42 79
F. Voluntary Arbitration || Arbitrator || SELECTION
« Notes: »

Article 224 (A) (5) decide all other labor disputes including unfair labor practices and bargaining
Jurisdiction of the Labor Arbiters and the Commission. deadlocks.
Cases arising from any violation of Article 264 of this Code, including questions Article 277 (h)
involving the legality of strikes and lockouts; Strikes, picketing and lockouts. Before or at any stage of the compulsory
arbitration process, the parties may opt to submit their dispute to voluntary
Article 224 (C) arbitration.
Cases arising from the interpretation or implementation of collective
bargaining agreements and those arising from the interpretation or Article 224 A
enforcement of company personnel policies shall be disposed of by the Labor Jurisdiction of the Labor Arbiters and the Commission.
Arbiter by referring the same to the grievance machinery and voluntary A. Except as otherwise provided under this Code, the Labor Arbiters shall have
arbitration as may be provided in said agreements. 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
ARBITRATOR involving all workers, whether agricultural or non-agricultural:
SELECTION 1. Unfair labor practice cases;
Article 219 (n) 2. Termination disputes;
"Voluntary Arbitrator" means any person accredited by the Board as such or 3. If accompanied with a claim for reinstatement, those cases that workers
any person named or designated in the Collective Bargaining Agreement by the may file involving wages, rates of pay, hours of work and other terms and
parties to act as their Voluntary Arbitrator, or one chosen with or without the conditions of employment;
assistance of the National Conciliation and Mediation Board, pursuant to a 4. Claims for actual, moral, exemplary and other forms of damages arising
selection procedure agreed upon in the Collective Bargaining Agreement, or any from the employer-employee relations;
official that may be authorized by the Secretary of Labor and Employment to 5. Cases arising from any violation of Article 264 of this Code, including
act as Voluntary Arbitrator upon the written request and agreement of the questions involving the legality of strikes and lockouts; and
parties to a labor dispute. 6. Except claims for Employees Compensation, Social Security, Medicare and
maternity benefits, all other claims arising from employer-employee
Article 272
relations, including those of persons in domestic or household service,
The parties to a Collective Bargaining Agreement shall include therein involving an amount exceeding five thousand pesos (P5,000.00) regardless
provisions that will ensure the mutual observance of its terms and conditions. of whether accompanied with a claim for reinstatement.
They shall establish a machinery for the adjustment and resolution of
grievances arising from the interpretation or implementation of their Collective Article 224 C
Bargaining Agreement and those arising from the interpretation or
Cases arising from the interpretation or implementation of collective
enforcement of company personnel policies.
bargaining agreements and those arising from the interpretation or
All grievances submitted to the grievance machinery which are not settled enforcement of company personnel policies shall be disposed of by the Labor
within seven (7) calendar days from the date of its submission shall Arbiter by referring the same to the grievance machinery and voluntary
automatically be referred to voluntary arbitration prescribed in the Collective arbitration as may be provided in said agreements.
Bargaining Agreement.
For this purpose, parties to a Collective Bargaining Agreement shall name and Notes:
designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators, - LA has original and exclusive jurisdiction over termination
or include in the agreement a procedure for the selection of such Voluntary disputes while VA has original and exclusive jurisdiction over
Arbitrator or panel of Voluntary Arbitrators, preferably from the listing of
grievances arising from the interpretation or enforcement of
qualified Voluntary Arbitrators duly accredited by the Board. In case the parties
company policies.
fail to select a Voluntary Arbitrator or panel of Voluntary Arbitrators, the
Board shall designate the Voluntary Arbitrator or panel of Voluntary o G.R.: Termination disputes should be brought before a LA
Arbitrators, as may be necessary, pursuant to the selection procedure agreed o E: When the parties, under Article 262, unmistakably express
upon in the Collective Bargaining Agreement, which shall act with the same that they agree to submit the same to voluntary
force and effect as if the Arbitrator or panel of Arbitrators has been selected arbitration.136
by the parties as described above. - In cases of claims and disputes arising from employment, the parties
covered by a CBA shall submit the claim or dispute to the original
PLENARY JURISDICTION OF VOLUNTARY ARBITRATOR VIS-À-VIS and exclusive jurisdiction of the voluntary arbitrator or panel of
arbitrators.137
LABOR ARBITER
- When the panel of voluntary arbitrators did not assume jurisdiction
Article 273 on related issues and made rulings on such, the management is not
Jurisdiction of Voluntary Arbitrators or Panel of Voluntary Arbitrators. The divested of its authority relating to those matters.138
Voluntary Arbitrator or panel of Voluntary Arbitrators shall have original and
- A voluntary arbitrator has plenary jurisdiction and authority to
exclusive jurisdiction to hear and decide all unresolved grievances arising from
the interpretation or implementation of the Collective Bargaining Agreement
interpret an agreement to arbitrate and to determine the scope of
and those arising from the interpretation or enforcement of company his own authority when the said agreement is vague—subject only,
personnel policies referred to in the immediately preceding article. Accordingly, in a proper case, to the certiorari jurisdiction of the SC.139
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
PROCEDURES
resolved as grievances under the Collective Bargaining Agreement. For
purposes of this article, gross violations of Collective Bargaining Agreement Article 275
shall mean flagrant and/or malicious refusal to comply with the economic The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have the power
provisions of such agreement. to hold hearings, receive evidences and take whatever action is necessary to
The Commission, its Regional Offices and the Regional Directors of the resolve the issue or issues subject of the dispute, including efforts to effect a
Department of Labor and Employment shall not entertain disputes, grievances voluntary settlement between parties.
or matters under the exclusive and original jurisdiction of the Voluntary All parties to the dispute shall be entitled to attend the arbitration
Arbitrator or panel of Voluntary Arbitrators and shall immediately dispose and proceedings. The attendance of any third party or the exclusion of any witness
refer the same to the Grievance Machinery or Voluntary Arbitration provided in from the proceedings shall be determined by the Voluntary Arbitrator or panel
the Collective Bargaining Agreement.

Article 274
136 NEGROS METAL V. LAMAYO (2010)
137 ESTATE OF NELSON DULAY V. ABOITIZ (2012)
Jurisdiction Over Other Labor Disputes. The Voluntary Arbitrator or panel of 138 MANILA PAVILION V. DELADA (2012)
Voluntary Arbitrators, upon agreement of the parties, shall also hear and 139 7K CORP. V. ALBARICO (2013)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 43 79
F. Voluntary Arbitration || Arbitrator || NATURE OF OFFICE AND FUNCTION
« Note: »

of Voluntary Arbitrators. Hearing may be adjourned for cause or upon execute the final decision, order or award.
agreement by the parties.
Unless the parties agree otherwise, it shall be mandatory for the Voluntary Note:
Arbitrator or panel of Voluntary Arbitrators to render an award or decision - While an arbitral award cannot per se be categorized as an
within twenty (20) calendar days from the date of submission of the dispute to agreement voluntarily entered into by the parties because it
voluntary arbitration. requires the interference and imposing power of the State thru the
The award or decision of the Voluntary Arbitrator or panel of Voluntary SoLE when he assumes jurisdiction, the award can be considered as
Arbitrators shall contain the facts and the law on which it is based. It shall be an approximation of a CBA which would otherwise have been
final and executory after ten (10) calendar days from receipt of the copy of the entered into by the parties. Hence, it has the force and effect of a
award or decision by the parties.
valid contractual obligation between the parties.141
Upon motion of any interested party, the Voluntary Arbitrator or panel of - To justify the vacation of an arbitral award on account of "manifest
Voluntary Arbitrators or the Labor Arbiter in the region where the movant
disregard of the law," the arbiter’s findings must clearly and
resides, in case of the absence or incapacity of the Voluntary Arbitrator or
panel of Voluntary Arbitrators, for any reason, may issue a writ of execution unequivocally violate an established legal precedent. Anything
requiring either the sheriff of the Commission or regular courts or any public less would not suffice. 142
official whom the parties may designate in the submission agreement to
execute the final decision, order or award. FINALITY AND EXECUTION OF AWARDS
- The Panel’s Decision had become final and executory after the lapse
NATURE OF OFFICE AND FUNCTION of the 10-day period. It cannot be challenged based on the non-
receipt of the dissenting opinion as the latter is a mere expression of
Article 272
the individual view of the dissenting member that is not binding on
The parties to a Collective Bargaining Agreement shall include therein
the parties.143
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 APPEAL
Bargaining Agreement and those arising from the interpretation or
Rules of Court, Rule 43, Section 1
enforcement of company personnel policies.
Rule applies to all appeals from awards, judgments, final orders or resolutions
All grievances submitted to the grievance machinery which are not settled
of or authorized by any quasi-judicial agency in the exercise of its quasi-
within seven (7) calendar days from the date of its submission shall
judicial functions, such as voluntary arbitrators authorized by law.
automatically be referred to voluntary arbitration prescribed in the Collective
Bargaining Agreement. Section 2
For this purpose, parties to a Collective Bargaining Agreement shall name and Rule does not apply to judgments or final orders issued under the Labor Code
designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators, of the Philippines.
or include in the agreement a procedure for the selection of such Voluntary
Arbitrator or panel of Voluntary Arbitrators, preferably from the listing of Section 3
qualified Voluntary Arbitrators duly accredited by the Board. In case the parties Appeal under this Rule may be taken to the Court of Appeals, whether the
fail to select a Voluntary Arbitrator or panel of Voluntary Arbitrators, the appeal involves questions of fact, of law or mixed questions of fact and law.
Board shall designate the Voluntary Arbitrator or panel of Voluntary
Arbitrators, as may be necessary, pursuant to the selection procedure agreed Section 4
upon in the Collective Bargaining Agreement, which shall act with the same Period. Appeal taken w/in 15 days from notice of the award, judgment, final
force and effect as if the Arbitrator or panel of Arbitrators has been selected order or resolution, OR from the date of its last publication, if publication is
by the parties as described above. required by law for its effectivity or of the denial of petitioner’s MNT or MR
duly filed in accordance w/ the governing law of the court or agency a quo.
Article 219 (n)
Only one (1) motion for reconsideration shall be allowed. Upon proper motion
"Voluntary Arbitrator" means any person accredited by the Board as such or and the payment of the full amount of the docket fee before the expiration of
any person named or designated in the Collective Bargaining Agreement by the the reglementary period, the Court of Appeals may grant an additional period
parties to act as their Voluntary Arbitrator, or one chosen with or without the of fifteen (15) days only within which to file the petition for review. No further
assistance of the National Conciliation and Mediation Board, pursuant to a extension shall be granted except for the most compelling reason and in no
selection procedure agreed upon in the Collective Bargaining Agreement, or any case to exceed fifteen (15) days.
official that may be authorized by the Secretary of Labor and Employment to
act as Voluntary Arbitrator upon the written request and agreement of the Note:
parties to a labor dispute. - The remedy of an aggrieved party in a Decision or Resolution of the
Secretary of the DOLE is to timely file a motion for reconsideration
INTERPRETATION AGREEMENT as a precondition for any further or subsequent remedy144
- The contemporaneous and subsequent acts of the parties as well
as their negotiating and contractual history and evidence of past
practices are used by the courts in interpreting ambiguities in the
CBA.140

AWARDS AND ORDERS


Article 275
The award or decision of the Voluntary Arbitrator or panel of Voluntary
Arbitrators shall contain the facts and the law on which it is based. It shall be
final and executory after ten (10) calendar days from receipt of the copy of the
award or decision by the parties.
Upon motion of any interested party, the Voluntary Arbitrator or panel of
Voluntary Arbitrators or the Labor Arbiter in the region where the movant
resides, in case of the absence or incapacity of the Voluntary Arbitrator or
panel of Voluntary Arbitrators, for any reason, may issue a writ of execution
requiring either the sheriff of the Commission or regular courts or any public 141 CIRTEK EES LABOR UNION – FFW V CIRTEK ELECTRONICS (2011)
official whom the parties may designate in the submission agreement to 142 EQUITABLE PCI BANKING V. RCBC (2004)
143 COCA-COLA SALES FORCE UNION V. COCA-COLA BOTTLERS (2005)
140 LEPANTO CONSOLIDATED V. LEPANTO LOCAL STAFF UNION (2008) 144 SMC QUARRY WORKERS UNION V. TITAN (2004)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 44 79
A. In general || Definition and General Concept || APPEAL
« Note: »

Unfair Labor
valid management prerogative in improving its operations. The law
on ULP is not intended to deprive employers of their fundamental
right to prescribe and enforce such rules as they honestly believe

Practice
to be necessary to the proper, productive and profitable operation
of their business. 146
- The act of introducing a marketing scheme offering products
A. In general directly to wholesales is not ULP as it is not designed to discourage
union organization or diminish its influence. 147
DEFINITION AND GENERAL CONCEPT - On Retirement: Management does not commit ULP when it opts to
Article 219 (k) exercise its option under the CBA to retire an EE.148
"Unfair labor practice" means any unfair labor practice as expressly defined by - On Mass Resignation: Acceptance of a voluntary resignation is not
the Code. ULP
o Mass resignation of pilots was not tantamount to a concerted
Article 257 activity protected by law so they cannot claim that PAL
Concept of unfair labor practice and procedure for prosecution thereof. committed ULP.149
Unfair labor practices violate the constitutional right of workers and - On Forced Vacation Leave: When ER requires EE’s to take a vacation
employees to self-organization, are inimical to the legitimate interests of both leave w/o pay because of an economic crisis, the ER does not
labor and management, including their right to bargain collectively and
commit ULP.
otherwise deal with each other in an atmosphere of freedom and mutual
respect, disrupt industrial peace and hinder the promotion of healthy and
- On Profit-Sharing: Grant by the ER of profit-sharing benefits to
stable labor-management relations. EE’s outside the bargaining unit falls under management
Consequently, unfair labor practices are not only violations of the civil rights of prerogative IF done in good faith.
both labor and management but are also criminal offenses against the State - On Promotions: A promotion that is manifestly beneficial to an EE
which shall be subject to prosecution and punishment as herein provided. should not give rise to a gratuitous speculation that such a
Subject to the exercise by the President or by the Secretary of Labor and promotion was made simply to deprive the union of the membership
Employment of the powers vested in them by Articles 263 and 264 of this Code, of the promoted EE.150
the civil aspects of all cases involving unfair labor practices, which may include - On Slowdowns: ER does not commit ULP by discharging EE’s who
claims for actual, moral, exemplary and other forms of damages, attorney’s engage in a slowdown even if their object is a pay increase.
fees and other affirmative relief, shall be under the jurisdiction of the Labor o ER also does not commit ULP for discharging EE’s who
Arbiters. The Labor Arbiters shall give utmost priority to the hearing and
participated in the slowdown where he discharges them to serve
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
as an example to stop the slowdown and not for discriminatory
decision. reasons.
Recovery of civil liability in the administrative proceedings shall bar recovery - On Termination: An employer is not guilty of ULP when the
under the Civil Code. termination was done in its bona fide exercise of its management
No criminal prosecution under this Title may be instituted without a final prerogatives.151
judgment finding that an unfair labor practice was committed, having been
first obtained in the preceding paragraph. During the pendency of such
EXCEPTION:
administrative proceeding, the running of the period of prescription of the Article 277 (g)
criminal offense herein penalized shall be considered interrupted: Provided, Strikes, picketing and lockouts. When, in his opinion, there exists a labor
however, that the final judgment in the administrative proceedings shall not be dispute causing or likely to cause a strike or lockout in an industry
binding in the criminal case nor be considered as evidence of guilt but merely indispensable to the national interest, the Secretary of Labor and Employment
as proof of compliance of the requirements therein set forth. may assume jurisdiction over the dispute and decide it or certify the same to
the Commission for compulsory arbitration. Such assumption or certification
Note: 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
- ULP refers to “acts that violate the workers’ right to organize.” The
already taken place at the time of assumption or certification, all striking or
prohibited acts are related to the workers’ right to self-organization locked out employees shall immediately return-to-work and the employer
and to the observance of a CBA. Without that element, the acts, shall immediately resume operations and readmit all workers under the same
even if unfair, are not ULP. The mere act of contracting out services terms and conditions prevailing before the strike or lockout. The Secretary of
and functions performed by union members is not ULP per se. 145 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.
UNFAIR LABOR PRACTICE VIS-À-VIS MANAGEMENT In line with the national concern for and the highest respect accorded to the
PREROGATIVE; 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
Notes: serious efforts, not only by labor and management but government as well, be
- It is within the company’s prerogative to promote, transfer or even exhausted to substantially minimize, if not prevent, their adverse effects on
demote its EE’s when the interests of the company reasonably such life and health, through the exercise, however legitimate, by labor of its
demand it. right to strike and by management to lockout. In labor disputes adversely
o Limit: When it directly points to interference by the company w/ affecting the continued operation of such hospitals, clinics or medical
the EE’s rights to self-organization. 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
Jurisprudence on Management Prerogatives: health personnel, whose movement and services shall be unhampered and
- The issues of misimplementation or non-implementation of unrestricted, as are necessary to insure the proper and adequate protection of
employee benefits, non-payment of overtime and other monetary 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
claims, inadequate transportation allowance, water, and other
facilities, are all a matter of implementation or interpretation of the
economic provisions of the CBA between Philcom and PEU subject to 146 PHILCOM EES UNION V. PHILIPPINE GLOBAL COMMUNICATIONS (2006)
the grievance procedure. Those matters fall within the exercise of a 147 SAN MIGUEL BREWERY SALES FORCE UNION V. OPLE AND SMC
148 BULLETIN PUBLISHING CORP. V. SANCHEZ
149 ENRIQUEZ V. ZAMORA

GENERAL SANTOS COCA-COLA PLANT FREE WORKERS UNION-TUPAS V.


145 150 SAN MIGUEL BREWERY SALES FORCE UNION V. OPLE AND SMC

COCA-COLA BOTTLERS PHILS., INC.(2009) 151 NELSON A. CULILI V. EASTERN TELECOM. PHIL., INC. (2011)

_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 45 79
A. In general || Requisites || EMPLOYER-EMPLOYEE RELATIONSHIP
« Jurisprudence on Management Prerogatives: »

Labor and Employment may immediately assume, within twenty four (24) Article 259
hours from knowledge of the occurrence of such a strike or lockout, jurisdiction Unfair labor practices of labor organizations. It shall be unfair labor practice
over the same or certify it to the Commission for compulsory arbitration. For for a labor organization, its officers, agents or representatives:
this purpose, the contending parties are strictly enjoined to comply with such
(a) To restrain or coerce employees in the exercise of their right to self-
orders, prohibitions and/or injunctions as are issued by the Secretary of Labor
organization. However, a labor organization shall have the right to
and Employment or the Commission, under pain of immediate disciplinary
prescribe its own rules with respect to the acquisition or retention of
action, including dismissal or loss of employment status or payment by the
membership;
locking-out employer of backwages, damages and other affirmative relief,
(b) To cause or attempt to cause an employer to discriminate against an
even criminal prosecution against either or both of them.
employee, including discrimination against an employee with respect to
The foregoing notwithstanding, the President of the Philippines shall not be whom membership in such organization has been denied or to terminate an
precluded from determining the industries that, in his opinion, are employee on any ground other than the usual terms and conditions under
indispensable to the national interest, and from intervening at any time and which membership or continuation of membership is made available to
assuming jurisdiction over any such labor dispute in order to settle or other members;
terminate the same. (c) To violate the duty, or refuse to bargain collectively with the employer,
provided it is the representative of the employees;
REQUISITES (d) To cause or attempt to cause an employer to pay or deliver or agree to pay
1. ER-EE Relationship or deliver any money or other things of value, in the nature of an exaction,
2. Act done is specifically defined under the law for services which are not performed or not to be performed, including the
demand for fee for union negotiations;
(e) To ask for or accept negotiation or attorney’s fees from employers as part
EMPLOYER-EMPLOYEE RELATIONSHIP of the settlement of any issue in collective bargaining or any other dispute;
- An employer is not guilty of ULP when the employee alleging such or
was not connected with any labor organization, nor attempted to (f) To violate a collective bargaining agreement.
join a labor organization, or to assist, or contribute to a labor The provisions of the preceding paragraph notwithstanding, only the officers,
organization.152 members of governing boards, representatives or agents or members of labor
- Absent an ER-EE relationship, the employer could not be guilty of associations or organizations who have actually participated in, authorized or
ratified unfair labor practices shall be criminally liable.
ULP as RA 875 specifically states that ULP can only be committed
within the context of an ER-EE relationship.153
BURDEN OF PROOF
ACT MUST BE SPECIFICALLY DEFINED IN THE LAW - In alleging ULP acts, the burden of proof lies on the one making the
Article 258 allegation, failure in the discharge of which would lead to the
Unfair labor practices of employers. It shall be unlawful for an employer to finding of no ULP.154
commit any of the following unfair labor practice: - It is the party alleging ULP who has the burden of proof to present
(a) To interfere with, restrain or coerce employees in the exercise of their right substantial evidence to support its allegations. It is not enough
to self-organization; that the union believed that the employer committed acts of unfair
(b) To require as a condition of employment that a person or an employee labor practice when the circumstances clearly negate even a prima
shall not join a labor organization or shall with-draw from one to which he facie showing to warrant such a belief.155
belongs;
(c) To contract out services or functions being performed by union members CONSTRUCTION/INTERPRETATION
when such will interfere with, restrain or coerce employees in the exercise - A partial compromise, or any labor contract for that matter, must
of their rights to self-organization;
yield to the common good and that in case of doubt, it should be
(d) To initiate, dominate, assist or otherwise interfere with the formation or
administration of any labor organization, including the giving of financial or
construed in favor of the safety and decent living of the worker.156
other support to it or its organizers or supporters;
MANAGEMENT PREROGATIVE
(e) To discriminate in regard to wages, hours of work and other terms and
conditions of employment in order to encourage or discourage - The court recognize the exercise of a company’s inherent
membership in any labor organization. Nothing in this Code or in any other management prerogative and its best business judgment to
law shall stop the parties from requiring membership in a recognized determine whether it should contract out the performance of some
collective bargaining agent as a condition for employment, except those of the work. However, the rights of all workers to self-organization,
employees who are already members of another union at the time of the collective bargaining and negotiations, and peaceful concerted
signing of the collective bargaining agreement. Employees of an activities, including the right to strike in accordance with law
appropriate bargaining unit who are not members of the recognized equally call for recognition and protection. Those contending
collective bargaining agent may be assessed a reasonable fee equivalent to
interests must be placed in proper perspective and equilibrium.157
the dues and other fees paid by members of the recognized collective
bargaining agent, if such non-­‐union members accept the benefits under the - While dissolution and contracting out are valid exercise of
collective bargaining agreement: Provided, that the individual management prerogative, the CBA providing for an assurance of
authorization required under Article 242, paragraph (o) of this Code shall security of tenure of the security guards constituted a bar to the
not apply to the non-­‐members of the recognized collective bargaining exercise of said management prerogative.158
agent;
(f) To dismiss, discharge or otherwise prejudice or discriminate against an INTER-RELATIONS OF ULP ACTS
employee for having given or being about to give testimony under this Article 248
Code;
Equity of the incumbent. All existing federations and national unions which
(g) To violate the duty to bargain collectively as prescribed by this Code;
meet the qualifications of a legitimate labor organization and none of the
(h) To pay negotiation or attorney’s fees to the union or its officers or agents
grounds for cancellation shall continue to maintain their existing affiliates
as part of the settlement of any issue in collective bargaining or any other
regardless of the nature of the industry and the location of the affiliates.
dispute; or
(i) To violate a collective bargaining agreement.
The provisions of the preceding paragraph notwithstanding, only the officers
and agents of corporations, associations or partnerships who have actually
participated in, authorized or ratified unfair labor practices shall be criminally
liable. 154 NELSON A. CULILI V. EASTERN TELECOM. PHIL., INC. (2011)
155 SCHERING EMPLOYEES LABOR UNION V. SCHERING (2005)
156 CALTEX FILIPINO MANAGERS AND SUPERVISORS ASSOC, V CIR (1972)
152 STERLING PRODUCTS INTERNATIONAL, INC. V. SOL AND CIR (1963) 157 SAN MIGUEL CORPORATION EMPLOYEES V. BERSAMIRA (1990)
153 AMERICAN PRESIDENT LINES, INC. V. CLAVE (1982) 158 SHELL OIL WORKERS UNION V. SHELL COMPANY
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 46 79
B. Acts in Violation of Right to Self-Organization || Interference, Restraint and Coercion || ACT MUST BE SPECIFICALLY DEFINED IN THE LAW
« Jurisprudence on Management Prerogatives: »

Article 249 (1) At least once a year within thirty (30) days after the close of its fiscal
Rights and conditions of membership in a labor organization. The following year;
are the rights and conditions of membership in a labor organization: (2) At such other times as may be required by a resolution of the majority
of the members of the organization; and
(a) No arbitrary or excessive initiation fees shall be required of the members
(3) Upon vacating his office.
of a legitimate labor organization nor shall arbitrary, excessive or
The account shall be duly audited and verified by affidavit and a copy
oppressive fine and forfeiture be imposed;
thereof shall be furnished the Secretary of Labor.
(b) The members shall be entitled to full and detailed reports from their
officers and representatives of all financial transactions as provided for in (m) The books of accounts and other records of the financial activities of any
the constitution and by-laws of the organization; labor organization shall be open to inspection by any officer or member
(c) The members shall directly elect their officers, including those of the thereof during office hours;
national union or federation to which they or their union is affiliated, by (n) No special assessment or other extraordinary fees may be levied upon the
secret ballot at intervals of five (5) years. No qualification requirements for members of a labor organization unless authorized by a written resolution
candidacy to any position shall be imposed other than membership in good of a majority of all the members in a general membership meeting duly
standing in subject labor organization. The secretary or any other called for the purpose. The secretary of the organization shall record the
responsible union officer shall furnish the Secretary of Labor and minutes of the meeting including the list of all members present, the votes
Employment with a list of the newly-elected officers, together with the cast, the purpose of the special assessment or fees and the recipient of
appointive officers or agents who are entrusted with the handling of funds, such assessment or fees. The record shall be attested to by the president.
within thirty (30) calendar days after the election of officers or from the (o) Other than for mandatory activities under the Code, no special
occurrence of any change in the list of officers of the labor organization; assessments, attorney’s fees, negotiation fees or any other extraordinary
(d) The members shall determine by secret ballot, after due deliberation, any fees may be checked off from any amount due to an employee without an
question of major policy affecting the entire membership of the individual written authorization duly signed by the employee. The
organization, unless the nature of the organization or force majeure authorization should specifically state the amount, purpose and
renders such secret ballot impractical, in which case, the board of directors beneficiary of the deduction; and
of the organization may make the decision in behalf of the general (p) It shall be the duty of any labor organization and its officers to inform its
membership; members on the provisions of its constitution and by-laws, collective
(e) No labor organization shall knowingly admit as members or continue in bargaining agreement, the prevailing labor relations system and all their
membership any individual who belongs to a subversive organization or rights and obligations under existing labor laws.
who is engaged directly or indirectly in any subversive activity; For this purpose, registered labor organizations may assess reasonable dues to
(f) No person who has been convicted of a crime involving moral turpitude finance labor relations seminars and other labor education activities.
shall be eligible for election as a union officer or for appointment to any Any violation of the above rights and conditions of membership shall be a
position in the union; ground for cancellation of union registration or expulsion of officers from
(g) No officer, agent or member of a labor organization shall collect any fees, office, whichever is appropriate. At least thirty percent (30%) of the members
dues, or other contributions in its behalf or make any disbursement of its of a union or any member or members specially concerned may report such
money or funds unless he is duly authorized pursuant to its constitution violation to the Bureau. The Bureau shall have the power to hear and decide
and by-laws; any reported violation to mete the appropriate penalty.
(h) Every payment of fees, dues or other contributions by a member shall be Criminal and civil liabilities arising from violations of above rights and
evidenced by a receipt signed by the officer or agent making the collection conditions of membership shall continue to be under the jurisdiction of
and entered into the record of the organization to be kept and maintained ordinary courts.
for the purpose;
(i) The funds of the organization shall not be applied for any purpose or object
other than those expressly provided by its constitution and by-laws or B. Acts in Violation of Right to Self-
those expressly authorized by written resolution adopted by the majority
of the members at a general meeting duly called for the purpose; Organization
(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
INTERFERENCE, RESTRAINT AND COERCION
by a receipt from the person to whom the payment is made, which shall ILO Convention No. 98
state the date, place and purpose of such payment. Such record or receipt Article 1
shall form part of the financial records of the organization. 1. Workers shall enjoy adequate protection against acts of anti-union
Any action involving the funds of the organization shall prescribe after discrimination in respect of their employment.
three (3) years from the date of submission of the annual financial report 2. Such protection shall apply more particularly in respect of acts calculated
to the Department of Labor and Employment or from the date the same to:
should have been submitted as required by law, whichever comes earlier: (a) make the employment of a worker subject to the condition that he shall
Provided, That this provision shall apply only to a legitimate labor not join a union or shall relinquish trade union membership;
organization which has submitted the financial report requirements under (b) cause the dismissal of or otherwise prejudice a worker by reason of
this Code: Provided, further, that failure of any labor organization to union membership or because of participation in union activities outside
comply with the periodic financial reports required by law and such rules working hours or, with the consent of the employer, within working
and regulations promulgated thereunder six (6) months after the hours.
effectivity of this Act shall automatically result in the cancellation of union
registration of such labor organization; Article 2
(k) The officers of any labor organization shall not be paid any compensation 1. Workers' and employers' organisations shall enjoy adequate protection
other than the salaries and expenses due to their positions as specifically against any acts of interference by each other or each other's agents or
provided for in its constitution and by-laws, or in a written resolution duly members in their establishment, functioning or administration.
authorized by a majority of all the members at a general membership 2. In particular, acts which are designed to promote the establishment of
meeting duly called for the purpose. The minutes of the meeting and the workers' organisations under the domination of employers or employers'
list of participants and ballots cast shall be subject to inspection by the organisations, or to support workers' organisations by financial or other
Secretary of Labor or his duly authorized representatives. Any irregularities means, with the object of placing such organisations under the control of
in the approval of the resolutions shall be a ground for impeachment or employers or employers' organisations, shall be deemed to constitute acts
expulsion from the organization; of interference within the meaning of this Article.
(l) The treasurer of any labor organization and every officer thereof who is
responsible for the account of such organization or for the collection, Article 258 (a)
management, disbursement, custody or control of the funds, moneys and Unfair labor practices of employers.
other properties of the organization, shall render to the organization and To interfere with, restrain or coerce employees in the exercise of their right to
to its members a true and correct account of all moneys received and paid self-organization;
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 shall be made:

_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 47 79
B. Acts in Violation of Right to Self-Organization || Interference, Restraint and Coercion || INTERROGATION
« Notes: »

Article 266 SPEECH, ESPIONAGE, ECONOMIC COERCION


Exclusive Bargaining Representation and Workers’ Participation in Policy and
On Violence/Intimidation
Decision-Making. The labor organization designated or selected by the
majority of the employees in an appropriate collective bargaining unit shall be - An employer commits ULP if it provokes its EEs to fight then
the exclusive representative of the employees in such unit for the purpose of proceeds to dismiss them for alleged violation of company policy
collective bargaining. However, an individual employee or group of employees during working hours.164
shall have the right at any time to present grievances to their employer.
On Espionage and Surveillance
Article 291 (g) - Whether or not the fruits of espionage was used is irrelevant in
Miscellaneous Provisions. The Ministry shall help promote and gradually determining the guilty of the ER which spied on its EE’s.
develop, with the agreement of labor organizations and employers, labor- - An ER commits ULP if it engages in surveillance OR takes steps
management cooperation programs at appropriate levels of the enterprise leading his EE’s to believe it’s going on, since the EE’s come under
based on the shared responsibility and mutual respect in order to ensure threat of economic coercion or retaliation for their union
industrial peace and improvement in productivity, working conditions and the activities.165
quality of working life.
- Unlawful surveillance is committed where supervisors were present
Article 259 (a) near the place where the union meeting was being held to check the
Unfair labor practices of labor organizations. names of EE’s leaving the meeting166
To restrain or coerce employees in the exercise of their right to self-
On Economic Inducements
organization. However, a labor organization shall have the right to prescribe its
own rules with respect to the acquisition or retention of membership; - ULP is committed when the ER announces benefits prior to a
representation election where it is intended to induce the EE’s to
Notes: vote against the union.
- An employer may be held guilty of ULP when it interferes with the - While a representation election is pending, the conferral of EE
right of the workers in concerted activity, in the exercise of their benefits to induce EE’s to vote against the union is unlawful.167
right to self-organization for their mutual aid and protection. It is On Speech
not necessary that union activity be involved or that collective - Statements by an ER that union representation would result in lay-
bargaining be contemplated.159 offs, wage reductions, loss of sick-pay and vacations with claim that
- From respondents’ refusal to bargain, to their acts of economic union will not be recognized by the ER, are coercive.
inducements resulting in the promotion of those who withdrew from - Threats of a run-away shop with loss of employment is an abuse of
the union, the use of armed guards to prevent the organizers to the right to free speech
come in, and the dismissal of union officials and members, one
cannot but conclude that the Ps didn't want a union in their Totality of Conduct Doctrine
hacienda – a clear interference in the right of the workers to self - An expression which might be permissibly uttered by the ER might in
organization. The letters of withdrawal that GMC presented was a the mouth of a more hostile ER be deemed improper and
desperate attempt to cast doubt on the legitimate status of the consequently actionable as ULP.
Union. The ill-timed letters of resignation from the union members - Facts to be considered:
indicate that GMC had interfered with the right of its employees to o Circumstances in w/c they were uttered
self-organization.160 o History of ER’s labor relations or anti-union bias
- The acts of the employer in transferring the union members to o Connection with an established collateral plan of coercion or
another company and leaving them hanging were clear interference
manifestations of its opposition to the formation of a union in the
company, which violated the right of the EEs to self-organization.161 THE INSULAR LIFE ASSURANCE CO. LTD. EMPLOYEES
ASSOCIATION V. INSULAR LIFE ASSURANCE CO., LTD. (1971)
INTERROGATION The letters addressed to the individual members without being
- For an employer not to be accused of ULP: coursed through the Union is ULP as the ER attempted to
o It must communicate to the employee the purpose of the negotiate with the EEs individually. It is a violation of its duty to
questioning bargain since it is still under the obligation to bargain with the
o It must assure the employee that no reprisal shall take place Union as the representative of the EEs. It also constituted
o It must obtain participation of the employee on a voluntary basis unwarranted acts of interference, which tends to undermine the
o The questioning must occur in a context free from employer EE’s concerted activity.
F:
hostility to union organization and must not be coercive in nature The letters contained promises of benefits to the EEs in order for
- Questioning of employees concerning union membership and them to go back to work, it is not protected by the free speech
activities and disparaging remarks by supervisory employees made provisions of the Constitution. Free speech protection is
in such away as to hamper the exercise of free choice on the part inapplicable where the expression of opinion by the ER/agent
of the employees, are considered ULP.162 contains a promise of benefit, or threats or reprisal.
- While the general rule is that an employer is not denied the privilege The ER is also guilty of strike breaking when the company bribed
of interrogating its employees as regards union affiliation, it must the members with comfortable cots, coffee and movies.
be for a legitimate purpose and no adverse consequences must
redound to those who admit to union membership. However, when CONCERTED ACTIVITIES
it is done in such a way as to hamper the exercise of free choice on - When the union’s protest is not rooted in any industrial dispute and
their part, constitutes unfair labor practice.163 not against their employer, such is an exercise of their right to
freedom of expression, their right of assembly, and their right to
petition for redress of grievances. It could not have been legally

159 REPUBLIC SAVINGS BANK V. CIR (1967) – FERNANDO, J., CONCURRING


160 GENERAL MILLING CORPORATION V. CA (2004) 164 VISAYAN BICYCLE MANUFACTURING CO., INC. V. CIR
161 PRINCE TRANSPORT, INC. & R. CLAROS V. DIOSDADO GARCIA (2011) 165 HENRIZ MFG. CO. V. NLRB
162 SCOTY’S DEPARTMENT STORE V. MICALLER (1956) 166 MATTHEWS & CO. V NLRB
163 PHILIPPINE STEAM NAVIGATION COMPANY V. PMOG (1965) 167 NLRB V. EXCHANGE PARTS
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 48 79
B. Acts in Violation of Right to Self-Organization || Non-Union Membership or Withdrawal Form Membership as a Condition of Employment (Yellow-Dog Contract) || CONCERTED ACTIVITIES
« Notes: »

enjoined by any court since it would breach their right to freedom of o Also includes the giving of financial or other support to it or its
expression, even if it appears to be illegal picketing or strike.168 organizers or supporters.
- There is company domination of a union when172 :
NON-UNION MEMBERSHIP OR WITHDRAWAL FORM o Key officials of the company have been forcing EEs of a rival labor
MEMBERSHIP AS A CONDITION OF EMPLOYMENT union to join another union under pain of dismissal if they refuse
(YELLOW-DOG CONTRACT) to do so.
Article 258 (b) o Key officials of the company and its legal counsel attended the
Unfair labor practices of employers. election of officers of the dominated union.
To require as a condition of employment that a person or an employee shall o Officers and members of the rival union were dismissed allegedly
not join a labor organization or shall with-draw from one to which he belongs; because of a retrenchment policy after they had presented
demands for the improvement of working conditions and despite
Notes: its alleged retrenchment policy and after dismissing EEs, the
- Yellow-Dog Contract” company engaged the services of new EEs.
o A promise exacted from workers as a condition of employment - Usual manifestations of company domination of a labor union:
that they are NOT to belong to, or attempt to foster a union o Initiation of the company union idea.
during their employment. o Financial support to the union.
o The continued employment of workers when conditioned on their o Employer encouragement and assistance – where the company
withdrawal of union membership is an unfair labor practice.169 immediately granted the union exclusive recognition as
CONTRACTING OUT TO DISCOURAGE UNIONISM bargaining agent without first determining whether the union
represents majority of the employees.
Article 258 (c)
o Supervisory assistance – where the management permitted union
Unfair labor practices of employers.
activities during working time.
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; PROGRESSIVE DEVELOPMENT CORPORATION V. CIR (1977)
From the facts of the case, it is clear that the respondents were
Valid contracting out dismissed because they refused to resign from the union and
- Based on business reasons even if ER’s estimate of his cost is based affiliate with the Progressive Employees Union which was being
on a projected increase attributable to unionization. aided and abetted by the Progressive Development. There were
F:
Illegal contracting out (ULP) substantial evidence showing that the Progressive Employees
- If contracting out is motivated by the intention/desire to prevent Union was organized to camouflage the petitioner corporation's
EE’s from organizing and selecting a collective bargaining dislike for the Araneta Coliseum Employees Association and to
representative, rid company of union members or escape the duty to stave off the latter's recognition.
bargain collectively. DISCRIMINATION TO ENCOURAGE/DISCOURAGE
- The dismissal constitutes ULP if the employer contracts out services
UNIONISM
or functions being performed by union members that will interfere
Article 258 (e)
with, restrain or coerce employees in the exercise of their rights to
self-organization.170 Unfair labor practices of employers.
To discriminate in regard to wages, hours of work and other terms and
Run-Away Shop171 conditions of employment in order to encourage or discourage membership in
- Business relocation animated by anti-union animus. any labor organization. Nothing in this Code or in any other law shall stop the
- When an industrial plant is moved by its owners to escape union parties from requiring membership in a recognized collective bargaining agent
as a condition for employment, except those employees who are already
labor regulations or state laws; also done to discriminate against the
members of another union at the time of the signing of the collective
EEs of the old plant because of their union activities. bargaining agreement. Employees of an appropriate bargaining unit who are
o This is a valid exercise of management prerogative if the ER not members of the recognized collective bargaining agent may be assessed a
legitimately blunt the effectiveness of an anticipated strike (i.e. reasonable fee equivalent to the dues and other fees paid by members of the
stockpiling inventories, readjusting contract schedules, transfer recognized collective bargaining agent, if such non-­‐union members accept the
of work from one plant to another). benefits under the collective bargaining agreement: Provided, that the
individual authorization required under Article 242, paragraph (o) of this Code
COMPANY DOMINATION OF UNION shall not apply to the non-­‐members of the recognized collective bargaining
Article 258 (d) agent;
Unfair labor practices of employers. Article 259 (b)
To initiate, dominate, assist or otherwise interfere with the formation or
Unfair labor practices of labor organizations.
administration of any labor organization, including the giving of financial or
To cause or attempt to cause an employer to discriminate against an employee,
other support to it or its organizers or supporters;
including discrimination against an employee with respect to whom
membership in such organization has been denied or to terminate an employee
Article 219 (i)
on any ground other than the usual terms and conditions under which
"Company union" means any labor organization whose formation, function or membership or continuation of membership is made available to other
administration has been assisted by any act defined as unfair labor practice by members;
this Code.
Examples of discrimination amounting to ULP of employer
Notes: - Discrimination in work quota;
- Company domination of a union is a ULP under Art. 258 (d). - Discrimination in bonus allocation or salary adjustments;
o It includes the acts of initiating, dominating, assisting or - Discrimination in layoff or dismissal – where only union members
otherwise interfering with the formation or administration of any were permanently dismissed, as opposed to non-union members;
labor organization. - Discrimination in regularization;
- Discrimination by blacklisting.
168 PHILIPPINE BLOOMING MILLS EMPLOYEES ORGANIZATION V. PBM (2006)
169 VISAYAN STEVEDORE TRANS. CO. V. CIR (1967)
170 DIGITAL TELECOMMUNICATIONS, PHIL., INC. V. DIGITEL EES UNION (2012)
171 COMPLEX ELECTRONICS V NLRC 172 OCEANIC AIR PRODUCTS V CIR (1963)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 49 79
C. Acts in Violation of Right to Collective Bargaining || Valid discrimination: Union Security Clause || INSTANCES OF DISCRIMINATION
« Test of discrimination »

- Indirect discrimination – where the employer discharged an


employee because of the union activities of his brother. RETALIATION AGAINST EMPLOYEE FOR HIS/HER
- Constructive Discharge – where an employee resigned because of TESTIMONY/INDIRECT DISCRIMINATION
discriminatory treatment at work. Article 258 (f)
Unfair labor practices of employers.
Test of discrimination To dismiss, discharge or otherwise prejudice or discriminate against an
- What is the underlying reason for the dismissal of an employee? employee for having given or being about to give testimony under this Code;
Notes:
Notes:
- Discrimination is not differentiation or classification.
- The dismissal of an employee after testifying against the employer
o For instance, it is common management practice to classify jobs
is considered an unfair labor practice.176
and grant them varying levels of pay or benefits package.
- This is considered ULP because it violates the right to engage in
- What is prohibited under the Labor Code is to either:
concerted activity, a right included in the right to self-organize
o Discriminate wrt wages, hours of work and other terms and
- An employee acting alone (i.e., testifying against his employer) in
conditions of employment in order to encourage or discourage
pursuing a group interest (i.e., in behalf of his union) may be said to
membership in any labor organization;
be doing a concerted activity which the employer may not curtail
o To cause/attempt to cause an ER to discriminate against an EE;
- Art. 258 (f) also applies to a situation where the employer retaliates
o To cause/attempt to cause an ER to discriminate against an
against an employee who refused to testify in favor of the employer,
employee with respect to whom membership in such organization
because said situation is analogous to the prohibition under Art. 248
has been denied; or
(f)
o To cause/attempt to cause an ER to terminate an employee on
- If labor standards are violated, and the employer retaliates, ULP is
any ground other than the usual terms and conditions under
committed
which membership or continuation of membership is made
o Where the employer refused to pay or reduced the wages and
available to other members.
benefits, discharged, or in any manner discriminated against any
VALID DISCRIMINATION: UNION SECURITY CLAUSE employee who has filed any complaint or initiated any
- In a sense, there is discrimination when certain employees are proceedings under the title on “Wages” or has testified or is about
obliged to join a particular union. to testify in such proceedings
- But it is discrimination favouring unionism, hence compulsory union - “Testimony” must be a matter found under the Labor Code.
membership thru union security clauses is a valid kind of
ILLEGAL EXACTION; FEATHERBEDDING
“discrimination”.
Article 259 (d)
Unfair labor practices of labor organizations.
INSTANCES OF DISCRIMINATION To cause or attempt to cause an employer to pay or deliver or agree to pay or
- A “closed-shop” may be defined as an enterprise in which, by deliver any money or other things of value, in the nature of an exaction, for
agreement between the employer and his employees, no person services which are not performed or not to be performed, including the
may be employed unless he or she is, becomes, and remains a demand for fee for union negotiations;
member in good standing. It is a valid form of discrimination with
Notes:
the purpose of promoting unionism to empower workers’
- “Featherbedding” refers to employee practices which:
bargaining power. For this reason, the law has allowed union
o Create or spread employment by “unnecessarily” maintaining or
security provisions as a means of encouraging workers to join and
increasing the number of employees used, or
support the union of their choice in the protection of their rights and
o “Unnecessarily” increasing the amount of time consumed to work
interest vis-à-vis the employer.173
on a particular job
- Featherbedding practices are ”enforced”:
VALID DISCRIMINATION: UNION SECURITY CLAUSE o Against uncooperative employees by
- Termination of employment by virtue of union security clause § Union fines or
embodied in a CBA is recognized and accepted in our jurisdiction. § Social ostracism when there is no union
Such practice strengthens the union and prevents disunity in the o Against uncooperative employers by
BU within the duration of the CBA. By preventing member § Contract remedies (CBA)
disaffiliation with the threat of expulsion from the union and the § Concerted activities
consequent termination of employment, the authorized bargaining - Featherbedding practices are economically wasteful and without
representative gains more numbers and strengthens its position as any legitimate employee justification
against other unions which may want to claim majority
representation.174
- While respondent company may validly dismiss the employees C. Acts in Violation of Right to Collective
expelled by the union for disloyalty under the union security clause Bargaining
of the collective bargaining agreement upon the recommendation
by the union, this dismissal should not be done hastily and VIOLATION TO DUTY TO BARGAIN
summarily thereby eroding the employees’ right to due process, Article 258 (g)
self-organization and security of tenure. The enforcement of union Unfair labor practices of employers.
security clauses is authorized by law provided such enforcement is To violate the duty to bargain collectively as prescribed by this Code;
not characterized by arbitrariness, and always with due process.175 Article 259 (c)
Unfair labor practices of labor organizations.
To violate the duty, or refuse to bargain collectively with the employer,
provided it is the representative of the employees;

173 DEL MONTE PHILIPPINES, INC. V. ZALDIVAR


174 ALABANG COUNTRY CLUB, INC. V. NLRC (2008)
175 GENERAL MILLING CORP. V. CASIO, ET AL. (2010) 176 ITOGON-SUYOC MINES, INC. V. BALDO (1964)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 50 79
C. Acts in Violation of Right to Collective Bargaining || Payment of Negotiation or Attorney’s Fees || 4 FORMS OF ULP IN BARGAINING
« Failure or refusal to meet and convene »

Article 260 Evading the mandatory subjects of bargaining


Procedure in collective bargaining. The following procedures shall be observed - But neither party is obligated to yield even on a mandatory
in collective bargaining: bargaining subject
(a) When a party desires to negotiate an agreement, it shall serve a written - An employer’s adamant insistence on a bargaining position is not
notice upon the other party with a statement of its proposals. The other necessarily a refusal to bargain in good faith
party shall make a reply thereto not later than ten (10) calendar days from
receipt of such notice; Bad faith in bargaining, including failure or refusal to execute the CBA,
(b) Should differences arise on the basis of such notice and reply, either party if requested
may request for a conference which shall begin not later than ten (10) - Whether a party has met his statutory duty to bargain in good faith
calendar days from the date of request. is a question of fact that must be resolved on a case-to-case basis
(c) If the dispute is not settled, the Board shall intervene upon request of - Consider negotiations as a whole
either or both parties or at its own initiative and immediately call the - Examples include surface bargaining, shifting bargaining positions,
parties to conciliation meetings. The Board shall have the power to issue blue sky bargaining, inflexible demands, strike amid negotiation,
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
take-it-or-leave-it bargaining
conciliation meetings the Board may call; Gross violation of the CBA
(d) During the conciliation proceedings in the Board, the parties are prohibited - Collective bargaining does not end with the execution of an
from doing any act which may disrupt or impede the early settlement of
agreement, being a continuous process, the duty to bargain
the disputes; and
The Board shall exert all efforts to settle disputes amicably and encourage the necessarily imposing on the parties the obligation to live up to the
parties to submit their case to a voluntary arbitrator. terms of such a collective bargaining agreement if entered into, it is
undeniable that non-compliance therewith constitutes an unfair
Article 261 labor practice.178
Duty to bargain collectively in the absence of collective bargaining - The timing of the closure of the school after a bargaining deadlock,
agreements. In the absence of an agreement or other voluntary arrangement and its subsequent opening, show bad faith. The closure was done to
providing for a more expeditious manner of collective bargaining, it shall be the
circumvent the parties’ agreement and to unilaterally end the
duty of employer and the representatives of the employees to bargain
collectively in accordance with the provisions of this Code.
bargaining deadlock, and which constitute a violation of the union’s
right to collective bargaining and security of tenure.179
Article 262 - The purpose of collective bargaining is the reaching of an
Meaning of duty to bargain collectively. The duty to bargain collectively agreement resulting in a contract binding on the parties; but the
means the performance of a mutual obligation to meet and convene promptly failure to reach an agreement after negotiations have continued for
and expeditiously in good faith for the purpose of negotiating an agreement a reasonable period does not establish a lack of good faith. While
with respect to wages, hours of work and all other terms and conditions of
the law makes it an obligation for the employer and the employees
employment including proposals for adjusting any grievances or questions
arising under such agreement and executing a contract incorporating such
to bargain collectively with each other, such compulsion does not
agreements if requested by either party but such duty does not compel any include the commitment to precipitately accept or agree to the
party to agree to a proposal or to make any concession. proposals of the other. All it contemplates is that both parties
should approach the negotiation with an open mind and make
Article 263 reasonable effort to reach a common ground of agreement.180
Duty to bargain collectively when there exists a collective bargaining - For a charge of ULP to prosper, it must be shown that CAB was
agreement. It shall be the duty of both parties to keep the status quo and to
motivated by ill will, bad faith, or fraud, or was oppressive to labor,
continue in full force and effect the terms and conditions of the existing
or done in a manner contrary to morals, good customs, or public
agreement during the 60-day period and/or until a new agreement is reached
by the parties. policy; and that social humiliation, wounded feelings or grave
anxiety resulted in suspending negotiations with CABEU-NFL.181
4 FORMS OF ULP IN BARGAINING
3. Failure/Refusal to meet and convene PAYMENT OF NEGOTIATION OR ATTORNEY’S FEES
4. Evading the mandatory subjects of bargaining
Article 258 (h)
5. Bad Faith in bargaining, including failure/refusal to execute the CBA,
Unfair labor practices of employers.
if requested To pay negotiation or attorney’s fees to the union or its officers or agents as
6. Gross violations of the CBA part of the settlement of any issue in collective bargaining or any other
dispute;
Failure or refusal to meet and convene
- Where the employer indirectly caused the discharge of his Article 259 (e)
employees by selling to a company (transfer of assets and Unfair labor practices of labor organizations.
employees) that he knows is unwilling to accept his employees. To ask for or accept negotiation or attorney’s fees from employers as part of
- The successor also has the duty to bargain collectively with the the settlement of any issue in collective bargaining or any other dispute;
bargaining representative of the employees, so long as the transfer
leaves intact the identity of the employing enterprises (or similarity Note:
of operations). - Self-organization and collective bargaining are treasured rights of
- An employer has been held not guilty of refusal to bargain by workers, hence the law zealously shields them from corruption.
adamantly rejecting the union’s economic demands due to financial
business losses, as long as he continues to negotiate.
- Financial hardships or economic exigencies of the employer do not
justify refusal to bargain collectively.
- The employer’s refusal to make a counter-proposal to the union’s
proposal for CBA negotiation is an indication of its bad faith. Where
the employer did not even bother to submit an answer to the
bargaining proposals of the union, there is a clear evasion of the
duty to bargain collectively.177
178 SHELL OIL WORKERS UNION V. SHELL COMPANY (1971)
179 ST. JOHN COLLEGES, INC. V. ST. JOHN ACADEMY FACULTY AND
EMPLOYEES UNION (2006)
HACIENDA FATIMA V. NATIONAL FEDERATION OF SUGARCANE WORKERS-
177 180 UNION OF FILIPRO EMPLOYEES – DFA UNIONS KMU V. NESTLE (2008)

FOOD (2003) 181 CABEU-NFL V. CENTRAL AZUCARERA DE BAIS, INC. (2010)

_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 51 79
D. Motive, Conduct and Proof || Gross Violation of Collective Bargaining Agreement || EMPLOYER
« Notes: »

§ Intimate connection between the employer’s action and the


GROSS VIOLATION OF COLLECTIVE BARGAINING union affiliations/activities of the employee.
AGREEMENT
Article 258 (i)
Unfair labor practices of employers.
E. Enforcement, Remedies and Sanctions
To violate a collective bargaining agreement. PARTIES AGAINST WHOM ULP COMMITTED
Article 259 (f) Article 219 (e)
Unfair labor practices of labor organizations. "Employer" includes any person acting in the interest of an employer, directly
To violate a collective bargaining agreement. or indirectly. The term shall not include any labor organization or any of its
officers or agents except when acting as employer.
Article 273
Jurisdiction of Voluntary Arbitrators or Panel of Voluntary Arbitrators Article 219 (f)
Accordingly, violations of a Collective Bargaining Agreement, except those "Employee" includes any person in the employ of an employer. The term shall
which are gross in character, shall no longer be treated as unfair labor practice not be limited to the employees of a particular employer, unless the Code so
and shall be resolved as grievances under the Collective Bargaining Agreement. explicitly states. It shall include any individual whose work has ceased as a
For purposes of this article, gross violations of Collective Bargaining Agreement result of or in connection with any current labor dispute or because of any
shall mean flagrant and/or malicious refusal to comply with the economic unfair labor practice if he has not obtained any other substantially equivalent
provisions of such agreement. and regular employment.

Notes: Article 219 (g)


- Gross violations of the CBA amount to ULP, and are therefore "Labor organization" means any union or association of employees which exists
outside the jurisdiction of a Voluntary Arbitrator in whole or in part for the purpose of collective bargaining or of dealing with
employers concerning terms and conditions of employment.
- Note however that upon agreement of the parties, a Voluntary
Arbitrator shall also hear and decide all other labor disputes, Notes:
including ULPs and bargaining deadlocks - The element of ER-EE relationship is required because ULP is the
- Only gross violations of the economic provisions of the CBA are negation of, a counteraction to, the right to organize which is
treated as ULP and not those pertaining to representation aspects available only to employees in relation to their employer
and management prerogative. Other violations which are not gross - No organizational right can be negated or assailed if the ER-EE
in character are mere grievances.182 relationship is absent in the first place.
- Even if there is a finding that retrenchment was illegal in this case,
such is not a gross violation of an economic provision in the CBA, and PARTIES LIABLE FOR ACTS
is therefore not ULP.183 EMPLOYER
Article 258 last par.
D. Motive, Conduct and Proof Unfair labor practices of employers.
The provisions of the preceding paragraph notwithstanding, only the officers
EMPLOYER MOTIVE AND PROOF and agents of corporations, associations or partnerships who have actually
- To constitute an ULP, the dismissal need not entirely and participated in, authorized or ratified unfair labor practices shall be criminally
exclusively be motivated by the Union’s activities or affiliations. It liable.
is enough that the discrimination was a contributing factor. While Article 302
the determination to cease operations is a management prerogative,
Penalties. Except as otherwise provided in this Code, or unless the acts
the State may interfere when it is manifestly shown that the closure complained of hinge on a question of interpretation or implementation of
was motivated not by a desire to avoid further losses, but to ambiguous provisions of an existing collective bargaining agreement, any
discourage the workers from organizing themselves into a union for violation of the provisions of this Code declared to be unlawful or penal in
more effective negotiations with management.184 nature shall be punished with a fine of not less than One Thousand Pesos
(P1,000.00) nor more than Ten Thousand Pesos (P10,000.00) or imprisonment
TOTALITY OF EVIDENCE of not less than three months nor more than three years, or both such fine and
- Totality of evidence test185 imprisonment at the discretion of the court. In addition to such penalty, any
o An employer may treat freely an employee and is not obliged to alien found guilty shall be summarily deported upon completion of service of
support his actions with a reason or purpose. However, where the sentence. Any provision of law to the contrary notwithstanding, any criminal
offense punished in this Code, shall be under the concurrent jurisdiction of the
attendant circumstances, the history of the employer’s past
Municipal or City Courts and the Courts of First Instance.
conduct and like considerations, coupled with an intimate
connection between the employer’s action and the union Article 303
affiliations or activities of the particular employee taken as a Who are liable when committed by other than natural person. If the offense
whole raise a suspicion as to the motivation for the employer’s is committed by a corporation, trust, firm, partnership, association or any other
action, the failure of the employer to ascribe a valid reason entity, the penalty shall be imposed upon the guilty officer or officers of such
therefore may justify an inference that his unexplained conduct corporation, trust, firm, partnership, association or entity.
in respect of the particular employee was inspired by the latter’s
union membership or activities.
- Parsed Rule: LABOR ORGANIZATION
o When the following are taken as a whole, would justify the Article 259, last par.
inference that the unexplained conduct was inspired by the Unfair labor practices of labor organizations.
employee’s union membership/activities: The provisions of the preceding paragraph notwithstanding, only the officers,
§ Attendant circumstances; members of governing boards, representatives or agents or members of labor
associations or organizations who have actually participated in, authorized or
§ History of the employer’s past conduct and like considerations;
ratified unfair labor practices shall be criminally liable.
and

182 BPI EMPLOYEES UNION – DAVAO CITY – FUBU V. BPI (2013)


183 FASAP V. PAL (2008)
184 ME-SHURN CORPORATION V. ME-SHURN WORKERS UNION (2005)
185 ROYAL UNDERGARMENT CORPORATION OF THE PHILIPPINES V. CIR (1990)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 52 79
E. Enforcement, Remedies and Sanctions || Prosecution and Prescriptive Period || CIVIL ASPECT
« Note: »

Note: REMEDIES AND SANCTIONS


- The new owner of the business may be held liable for ULP when it is CIVIL REMEDIES
shown through his actions that he had knowledge of the existing Article 257, 2nd and 3rd par.
labor dispute between the previous management and the workers. Concept of unfair labor practice and procedure for prosecution thereof.
When the new owner used the same premises, the same business Consequently, unfair labor practices are not only violations of the civil rights of
name, machineries, tools and implements and the same officials and both labor and management but are also criminal offenses against the State
supervisors of the previous employer, and dismissed the union which shall be subject to prosecution and punishment as herein provided.
members without substantial reason, it becomes inescapable that Subject to the exercise by the President or by the Secretary of Labor and
such dismissal was to break the union and do away with the existing Employment of the powers vested in them by Articles 263 and 264 of this Code,
collective bargaining agreement which it has obtained only after a the civil aspects of all cases involving unfair labor practices, which may include
claims for actual, moral, exemplary and other forms of damages, attorney’s
strike and bargaining negotiations."186
fees and other affirmative relief, shall be under the jurisdiction of the Labor
PROSECUTION AND PRESCRIPTIVE PERIOD Arbiters. The Labor Arbiters shall give utmost priority to the hearing and
resolution of all cases involving unfair labor practices. They shall resolve such
CIVIL ASPECT cases within thirty (30) calendar days from the time they are submitted for
Article 257 2nd – 5th par. decision.
Concept of unfair labor practice and procedure for prosecution thereof.
Article 229
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 Appeal. Decisions, awards, or orders of the Labor Arbiter are final and
which shall be subject to prosecution and punishment as herein provided. executory unless appealed to the Commission by any or both parties within ten
(10) calendar days from receipt of such decisions, awards, or orders. Such
Subject to the exercise by the President or by the Secretary of Labor and
appeal may be entertained only on any of the following grounds:
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 (a) If there is prima facie evidence of abuse of discretion on the part of the
claims for actual, moral, exemplary and other forms of damages, attorney’s Labor Arbiter;
fees and other affirmative relief, shall be under the jurisdiction of the Labor (b) If the decision, order or award was secured through fraud or coercion,
Arbiters. The Labor Arbiters shall give utmost priority to the hearing and including graft and corruption;
resolution of all cases involving unfair labor practices. They shall resolve such (c) If made purely on questions of law; and
cases within thirty (30) calendar days from the time they are submitted for (d) If serious errors in the findings of facts are raised which would cause grave
decision. or irreparable damage or injury to the appellant.
In case of a judgment involving a monetary award, an appeal by the employer
Recovery of civil liability in the administrative proceedings shall bar recovery
may be perfected only upon the posting of a cash or surety bond issued by a
under the Civil Code.
reputable bonding company duly accredited by the Commission in the amount
No criminal prosecution under this Title may be instituted without a final equivalent to the monetary award in the judgment appealed from.
judgment finding that an unfair labor practice was committed, having been
In any event, the decision of the Labor Arbiter reinstating a dismissed or
first obtained in the preceding paragraph. During the pendency of such
separated employee, insofar as the reinstatement aspect is concerned, shall
administrative proceeding, the running of the period of prescription of the
immediately be executory, even pending appeal. The employee shall either be
criminal offense herein penalized shall be considered interrupted: Provided,
admitted back to work under the same terms and conditions prevailing prior to
however, that the final judgment in the administrative proceedings shall not be
his dismissal or separation or, at the option of the employer, merely reinstated
binding in the criminal case nor be considered as evidence of guilt but merely
in the payroll. The posting of a bond by the employer shall not stay the
as proof of compliance of the requirements therein set forth.
execution for reinstatement provided herein.
Article 304 To discourage frivolous or dilatory appeals, the Commission or the Labor
Offenses. Offenses penalized under this Code and the rules and regulations Arbiter shall impose reasonable penalty, including fines or censures, upon the
issued pursuant thereto shall prescribe in three (3) years. erring parties.
All unfair labor practice arising from Book V shall be filed with the appropriate In all cases, the appellant shall furnish a copy of the memorandum of appeal to
agency within one (1) year from accrual of such unfair labor practice; otherwise, the other party who shall file an answer not later than ten (10) calendar days
they shall be forever barred. from receipt thereof.
The Commission shall decide all cases within twenty (20) calendar days from
receipt of the answer of the appellee. The decision of the Commission shall be
CRIMINAL ASPECT final and executory after ten (10) calendar days from receipt thereof by the
Article 257, last par. parties.
Concept of unfair labor practice and procedure for prosecution thereof. Any law enforcement agency may be deputized by the Secretary of Labor and
Employment or the Commission in the enforcement of decisions, awards or
No criminal prosecution under this Title may be instituted without a final
orders.
judgment finding that an unfair labor practice was committed, having been
first obtained in the preceding paragraph. During the pendency of such Article 293
administrative proceeding, the running of the period of prescription of the Security of tenure. In cases of regular employment, the employer shall not
criminal offense herein penalized shall be considered interrupted: Provided, terminate the services of an employee except for a just cause or when
however, that the final judgment in the administrative proceedings shall not be authorized by this Title. An employee who is unjustly dismissed from work shall
binding in the criminal case nor be considered as evidence of guilt but merely be entitled to reinstatement without loss of seniority rights and other
as proof of compliance of the requirements therein set forth. privileges and to his full backwages, inclusive of allowances, and to his other
benefits or their monetary equivalent computed from the time his
Article 304 compensation was withheld from him up to the time of his actual
Offenses. Offenses penalized under this Code and the rules and regulations reinstatement.
issued pursuant thereto shall prescribe in three (3) years.
All unfair labor practice arising from Book V shall be filed with the appropriate Notes:
agency within one (1) year from accrual of such unfair labor practice; otherwise, - In the LA, no MR is allowed
they shall be forever barred. o But in the NLRC, an MR is a prerequisite for one to be able to file
for an appeal to the CA188
COMPROMISE
- ULP cases are not subject to compromise due to the public interest
involved.187

186 NATIONAL LABOR UNION V. CIR (1982)


187 CCLC E.G. GOCHANGCO WORKERS UNION V. NLRC (1988) 188 ST. MARTIN FUNERAL HOMES V NLRC
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 53 79
E. Enforcement, Remedies and Sanctions || Remedies and Sanctions || PENAL REMEDIES
« Note: »

PENAL REMEDIES
Article 257 last par.
Concept of unfair labor practice and procedure for prosecution thereof.
No criminal prosecution under this Title may be instituted without a final
judgment finding that an unfair labor practice was committed, having been
first obtained in the preceding paragraph. During the pendency of such
administrative proceeding, the running of the period of prescription of the
criminal offense herein penalized shall be considered interrupted: Provided,
however, that the final judgment in the administrative proceedings shall not be
binding in the criminal case nor be considered as evidence of guilt but merely
as proof of compliance of the requirements therein set forth.

Article 302
Penalties. Except as otherwise provided in this Code, or unless the acts
complained of hinge on a question of interpretation or implementation of
ambiguous provisions of an existing collective bargaining agreement, any
violation of the provisions of this Code declared to be unlawful or penal in
nature shall be punished with a fine of not less than One Thousand Pesos
(P1,000.00) nor more than Ten Thousand Pesos (P10,000.00) or imprisonment
of not less than three months nor more than three years, or both such fine and
imprisonment at the discretion of the court. In addition to such penalty, any
alien found guilty shall be summarily deported upon completion of service of
sentence. Any provision of law to the contrary notwithstanding, any criminal
offense punished in this Code, shall be under the concurrent jurisdiction of the
Municipal or City Courts and the Courts of First Instance.

Article 303
Who are liable when committed by other than natural person. If the offense
is committed by a corporation, trust, firm, partnership, association or any other
entity, the penalty shall be imposed upon the guilty officer or officers of such
corporation, trust, firm, partnership, association or entity.

Article 304
Offenses. Offenses penalized under this Code and the rules and regulations
issued pursuant thereto shall prescribe in three (3) years.
All unfair labor practice arising from Book V shall be filed with the appropriate
agency within one (1) year from accrual of such unfair labor practice; otherwise,
they shall be forever barred.

Note:
- A dismissed employee is entitled to moral damages “when the
dismissal is attended by bad faith or fraud or constitutes an act
oppressive to labor, or is done in a manner contrary to good morals,
good customs or public policy” while exemplary damages may be
awarded “if the dismissal is effected in a wanton, oppressive or
malevolent manner.”189

189 QUADRA V. COURT OF APPEALS (2006)


_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 54 79
A. Basis of Right to Engage in Concerted Activities || Constitution || PENAL REMEDIES
« Note: »

Union Concerted
Section 4
Compromise Agreements. Any compromise settlement, including those
involving labor standard laws, voluntarily agreed upon by the parties with the

Activities
assistance of the Board and its regional branches shall be final and binding
upon the parties. The National Labor Relations Commission or any court shall
not assume jurisdiction over issues involved therein except in case of non-
compliance thereof or if there is prima facie evidence that the settlement was
A. Basis of Right to Engage in Concerted obtained through fraud, misrepresentation, or coercion. Upon motion of any
Activities interested party, the Labor Arbiter in the region where the agreement was
reached may issue a writ of execution requiring a sheriff of the Commission or
CONSTITUTION the courts to enforce the terms of the agreement.
Article XIII, Section 3, 2nd par. (1987 Constitution) Section 5
It shall guarantee the rights of all workers to self-organization, collective Grounds for strike or lockout. A strike or lockout may be declared in cases of
bargaining and negotiations, and peaceful concerted activities, including the bargaining deadlocks and unfair labor practices. Violations of collective
right to strike in accordance with law. They shall be entitled to security of bargaining agreements, except flagrant and/or malicious refusal to comply
tenure, humane conditions of work, and a living wage. They shall also with its economic provisions, shall not be considered unfair labor practice and
participate in policy and decision-making processes affecting their rights and shall not be strikeable. No strike or lockout may be declared on grounds
benefits as may be provided by law. involving inter-union and intra-union disputes without first having filed a
notice of strike or lockout or without the necessary strike or lockout vote
Note: having been obtained and reported to the Board. Neither will a strike be
- For the first time in our constitutional history, the fundamental law declared after assumption of jurisdiction by the Secretary or after certification
of our land mandated the State to guarantee the rights of all or submission of the dispute to compulsory or voluntary arbitration or during
workers to self-organization, collective bargaining and negotiations, the pendency of cases involving the same grounds for the strike or lockout.
and peaceful concerted activities, including the right to strike in
Section 6
accordance with law. This constitutional imprimatur given to the
Who may declare a strike or lockout. Any certified or duly recognized
right to strike constitutes signal victory for labor.190 bargaining representative may declare a strike in cases of bargaining deadlocks
and unfair labor practices. The employer may declare a lockout in the same
STATUTE
cases. In the absence of a certified or duly recognized bargaining
Article 218 A (a) representative, any legitimate labor organization in the establishment may
Policy. To promote and emphasize the primacy of free collective bargaining declare a strike but only on grounds of unfair labor practices.
and negotiations, including voluntary arbitration, mediation and conciliation, as
modes of settling labor or industrial disputes; Section 7
Notice of strike or lockout. In bargaining deadlocks, a notice of strike or
Article 218 A (b) lockout shall be filed with the regional branch of the Board at least thirty (30)
Policy. To promote free trade unionism as an instrument for the enhancement days before the intended date thereof, a copy of said notice having been served
of democracy and the promotion of social justice and development. on the other party concerned. In cases of unfair labor practice, the period of
notice shall be fifteen (15) days. However, in case of unfair labor practice
Article 218 A (c) involving the
Policy. To foster the free and voluntary organization of a strong and united dismissal from employment of any union officer duly elected in accordance
labor movement. with the union constitution and by-laws which may constitute union-busting
where the existence of the union is threatened, the fifteen-day cooling-off
Article 277 (a) period shall not apply and the union may take action immediately after the
Strikes, picketing and lockouts. It is the policy of the State to encourage free strike vote is conducted and the results thereof submitted to the appropriate
trade unionism and free collective bargaining. regional branch of the Board.

Article 277 (b) Section 8


Strikes, picketing and lockouts. Workers shall have the right to engage in Contents of notice. The notice shall state, among others, the names and
concerted activities for purposes of collective bargaining or for their mutual addresses of the employer and the union involved, the nature of the industry to
benefit and protection. The right of legitimate labor organizations to strike and which the employer belongs, the number of union members and of the workers
picket and of employers to lockout, consistent with the national interest, shall in the bargaining unit, and such other relevant data as may facilitate the
continue to be recognized and respected. However, no labor union may strike settlement of the dispute, such as a brief statement or enumeration of all
and no employer may declare a lockout on grounds involving inter-union and pending labor disputes involving the same parties.
intra-union disputes. In cases of bargaining deadlocks, the notice shall, as far as practicable, further
state the unresolved issues in the bargaining negotiations and be accompanied
Book V, Rule XXII, Section 1
by the written proposals of the union, the counter-proposals of the employer
Conciliation of labor-management disputes. The board may, upon request of and the proof of a request for conference to settle the differences. In cases of
either of both parties or upon its own initiative, provide conciliation-mediation unfair labor practices, the notice shall, as far as practicable, state the acts
services to labor disputes other than notices of strikes or lockouts. Conciliation complained of and the efforts taken to resolve the dispute amicably.
cases which are not subjects of notices of strike or lockout shall be docketed as
preventive mediation cases. In case a notice does not conform with the requirements of this and the
foregoing section/s, the regional branch of the Board shall inform the
Section 2 concerned party of such fact.
Privileged communication. Information and statements given in confidence at
Section 9
conciliation proceedings shall be treated as privileged communications.
Action on Notice. Upon receipt of the notice, the regional branch of the Board
Conciliators and similar officials shall not testify in any court or body regarding
shall exert all efforts at mediation and conciliation to enable the parties to
any matter taken up at conciliation proceedings conducted by them.
settle the dispute amicably. The regional branch of the Board may, upon
Section 3 agreement of the parties, treat a notice as a preventive mediation case. It shall
Issuance of subpoena. The Board shall have the power to require the also encourage the parties to submit the dispute to voluntary arbitration.
appearance of any parties at conciliation meetings. During the proceedings, the parties shall not do any act which may disrupt or
impede the early settlement of the dispute. They are obliged, as part of their
duty to bargain collectively in good faith and to participate fully and promptly
in the conciliation meetings called by the regional branch of the Board.
A notice, upon agreement of the parties, may be referred to alternative modes
of dispute resolution, including voluntary arbitration.
190 BISIG NG MANGGAGAWA SA CONCRETE AGGREGATES V NLRC (1993)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 55 79
A. Basis of Right to Engage in Concerted Activities || Statute || PENAL REMEDIES
« »

Section 10 assumption, all striking or locked out employees and other employees subject
Strike or lockout vote. A decision to declare a strike must be approved by a of the notice of strike shall immediately return to work and the employer shall
majority of the total union membership in the bargaining unit concerned immediately resume operations and readmit all employees under the same
obtained by secret ballot in meetings or referenda called for the purpose. A terms and conditions prevailing before the strike or lockout.
decision to declare a lockout must be approved by a majority of the Board of Notwithstanding the foregoing, parties to the case may agree at any time to
Directors of the employer, corporation or association or the partners in a submit the dispute to the Secretary of Labor or his/her duly authorized
partnership obtained by a secret ballot in a meeting called for the purpose. representative as Voluntary Arbitrator or to a duly accredited Voluntary
The regional branch of the Board may, at its own initiative or upon request of Arbitrator or to a panel of Voluntary Arbitrators.
any affected party, supervise the conduct of the secret balloting. In every case,
Section 16
the union or the employer shall furnish the regional branch of the Board and
the notice of meetings referred to in the preceding paragraph at least twenty- Industries indispensable to the national interest. For the guidance of the
four (24) hours before such meetings as well as the results of the voting at workers and employers in the filing of petition for assumption of jurisdiction,
least seven (7) days before the intended strike or lockout, subject to the the following industries/services are hereby recognized as deemed
cooling-off period provided in this Rule. indispensable to the national interest:
a. Hospital Sector
Section 11 b. Electric Power Industry
Declaration of strike or lockout. Should the dispute remain unsettled after c. Water Supply Services, to exclude small water supply services such as
the lapse of the requisite number of days from the filing of the notice of strike bottling and refilling stations
or lockout and of the results of the election required in the preceding section, d. Air Traffic Control; and
the labor union may strike or the employer may lock out its workers. The e. Such other industries as maybe recommended by the National Tripartite
regional branch of the Board shall continue mediating and conciliating. Industrial Peace Council (TIPC)

Section 12
Section 17
Improved offer balloting. In case of a strike, the regional branch of the Board
Requirement for Minimum Operational Service. In labor disputes adversely
shall, at its own initiative or upon the request of any affected party, conduct a
affecting the continued operation of hospitals, clinics or medical institutions, it
referendum by secret balloting on the improved offer of the employer on or
shall be the duty of the striking union or locking-out employer to provide and
before the 30th day of strike. When at least a majority of the union members
maintain an effective skeletal workforce of medical and other health
vote to accept the improved offer, the striking workers shall immediately
personnel, whose movement and services shall be unhampered and
return to work and the employer shall thereupon re-admit them upon the
unrestricted, as are necessary to ensure the proper and adequate protection of
signing of the agreement.
the life and health of its patients, most especially emergency cases, for the
In case of a lockout, the regional branch of the Board shall also conduct a duration of the strike or lockout.
referendum by secret balloting on the reduced offer of the union on or before
the 30th day of the lockout. When at least a majority of the board of directors Section 18
or trustees or the partners holding the controlling interest in the case of Decision on the assumed labor dispute; finality. Within five (5) days from the
partnership vote to accept the reduced offer, the workers shall immediately issuance of the assumption or certification order, a preliminary conference or
return to work and the employer shall thereupon readmit them upon the hearing shall immediately be conducted by the Office of the Secretary of Labor
signing of the agreement. and Employment, the NLRC or the Voluntary Arbitrator or panel of Voluntary
Arbitrators as the case maybe.
Section 13
The decision of the Secretary of Labor and Employment, the NLRC or the
Peaceful picketing. Workers shall have the right to peaceful picketing. No
Voluntary Arbitrator or panel of Voluntary Arbitrators shall be rendered within
person engaged in picketing shall commit any act of violence, coercion or
thirty (30) calendar days from submission of the case for resolution and shall
intimidation or obstruct the free ingress to or egress from the employer's
be final and executory ten (10) calendar days after receipt thereof by the
premises for lawful purposes, or obstruct public thoroughfares.
parties.
No person shall obstruct, impede or interfere with, by force, violence, coercion,
threats or intimidation, any peaceful picketing by workers during any labor Section 19
controversy or in the exercise of the right to self-organization or collective
Prohibition on law enforcement agencies or public officials/employees,
bargaining or shall aid or abet such obstruction or interference. No employer
armed persons, private security personnel in the private security agency,
shall use or employ any person to commit such acts nor shall any person be
Exception. No public official or employee, including officers and personnel of
employed for such purpose.
the Armed Forces of the Philippines or the Philippine National Police, or armed
Section 14 person, private security guards and similar personnel in the private security
agency shall bring in, introduce or escort in any manner, any individual who
Injunctions. No court or entity shall enjoin any picketing, strike or lockout,
seeks to replace strikers in entering or leaving the premises of a strike area, or
except as provided in Articles 225 and 278 of the Labor Code.
work in place of the strikers.
The Commission shall have the power to issue temporary restraining orders in
The police force shall keep out of the picketlines unless actual violence or other
such cases but only after due notice and hearing and in accordance with its
criminal acts occur therein.
rules. The reception of evidence for the application of a writ of injunction may
be delegated by the Commission to any Labor Arbiter who shall submit his But any public officer, the Secretary of Labor and Employment or the NLRC
recommendations to the Commission for its consideration and resolution. may seek the assistance of law enforcement agencies to maintain peace and
order, protect life and property, and/or enforce the law and legal order
Any ex parte restraining order issued by the Commission, or its chairman or
pursuant to the provisions of the Join DOLE-PNP-PEZA Guidelines in the
Vice-Chairman where the Commission is not in session and as prescribed by its
Conduct of PNP Personnel, Economic Zone Police and Security Guards,
rules, shall be valid for a period not exceeding twenty (20) days.
Company Security Guards and similar personnel during labor disputes.
Section 15
Section 20
Assumption by the Secretary of Labor and Employment. When a labor dispute
Criminal prosecution. The regular courts shall have jurisdiction over any
causes or likely to cause a strike or lockout in an industry indispensable to the
criminal action under Article 272 of the Labor Code, as amended, but subject to
national interest, the Secretary of Labor and Employment may assume
the required clearance from the DOLE on cases arising out of or related to a
jurisdiction over the dispute and decide it to certify the same to the National
labor dispute pursuant to the Ministry of Justice (now DOJ) Circular No. 15,
Labor Relations Commission for compulsory arbitration provided the following
Series of 1982, and Circular No. 9, Series of 1986.
condition are present:
1. Both parties have requested the Secretary of Labor and employment to
assume jurisdiction over Labor Dispute;
2. After the conference called by the office of the Secretary of Labor on
propriety of its issuance motu propio or upon request or petition by either
parties to the labor dispute.
Such assumption shall have the effect of automatically enjoining an impending
strike or lockout. If a strike/lockout has already taken place at the time of

_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 56 79
B. Typs of Concerted Activities || Limitations || DEFINITION, NATURE, PURPOSE AND SCOPE
« Note: »

balancing the interests of labor and management together with


Note:
the overarching public interest.196
- Among the rights guaranteed to employees by the Labor Code is that
of engaging in concerted activities in order to attain their legitimate
objectives. A similar right to engage in concerted activities for EFFECT ON WORK RELATIONSHIP
mutual benefit and protection is tacitly and traditionally recognized Article 291 (b)
in respect of employers.191 Miscellaneous Provisions. Subject to the constitutional right of workers to
security of tenure and their right to be protected against dismissal except for a
LIMITATIONS just and authorized cause and without prejudice to the requirement of notice
- The strike is indeed a powerful weapon of the working class. But under Article 283 of this Code, the employer shall furnish the worker whose
precisely because of this, it must be handled carefully, like a employment is sought to be terminated a written notice containing a
sensitive explosive, lest it blow up in the workers' own hands. Thus, statement of the causes for termination and shall afford the latter ample
it must be declared only after the most thoughtful consultation opportunity to be heard and to defend himself with the assistance of his
representative if he so desires in accordance with company rules and
among them, conducted in the only way allowed, that is, peacefully,
regulations promulgated pursuant to guidelines set by the Department of
and in every case conformably to reasonable regulation.192 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
B. Typs of Concerted Activities 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
Common types of Concerted Activities valid or authorized cause shall rest on the employer. The Secretary of the
1. Strike Department of Labor and Employment may suspend the effects of the
2. Picketing 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
3. Slowdown
before whom such dispute is pending that the termination may cause a serious
4. Boycotts labor dispute or is in implementation of a mass lay-off.
STRIKE
Jurisprudence on Work Relationship
DEFINITION, NATURE, PURPOSE AND SCOPE
- When an employee exercises his/her option as stated in the
Article 219 (o) company policies/CBA, an arbitrary disregard of the same and
"Strike" means any temporary stoppage of work by the concerted action of insistence on a different procedure is clearly unreasonable as it
employees as a result of an industrial or labor dispute.
defeats the exercise of such option. The impairment of such option
Book V, Rule I, Section 1 (uu) constituted an impairment of the right to due process.197
"Strike" refers to any temporary stoppage of work by the concerted action of
employees as a result of a labor or industrial dispute. TYPES AND CONVERSION

Jurisprudence on the Nature of Strikes Article 277 (c)


- The blockade of the delivery of trucks and the attendance of Strike, Picketing and Lockouts
employees from the other departments meant work stoppage. The 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
placards that the picketers caused to be displayed arose from
with the Ministry at least 30 day before the intended date thereof. In cases of
matters concerning terms or conditions of employment as well as unfair labor practice, the period of notice shall be 15 days and in the absence of
the association or representation of persons in negotiating, fixing, a duly certified or recognized bargaining agent, the notice of strike may be filed
maintaining, changing or arranging the terms and conditions of by any legitimate labor organization in behalf of its members. However, in case
employment. Clearly, the union, its officers, members and of dismissal from employment of union officers duly elected in accordance
supporters staged a strike.193 with the union constitution and by-laws, which may constitute union busting,
- The bare fact that the union was given a Mayor’s permit is not where the existence of the union is threatened, the 15-day cooling-off period
shall not apply and the union may take action immediately.
conclusive evidence that its action/activity did not amount to a
strike. The Mayor’s description of what activities they were allowed As to Extent
to conduct is inconsequential. To repeat, what is definitive of a. General – extends over a whole community, province, state, or
whether the action staged by a union is a strike and not merely a country. It is an extended form of sympathetic strike, involving many
picket is the totality of the circumstances surrounding the workers who cease to work in sympathy with the workers of another
situation.194 employer, or in order to put pressure upon the government or in order
- The petitioners here went on leave for various reasons. There was no to paralyze the present economic and social systems
intent to go on strike. Moreover, Biomedica did not prove that the b. Local/Particular – undertaken by workers in a particular enterprise,
individual absences can be considered as “temporary stoppage of locality or occupation; it usually involves only 1 union/industry
work.” Biomedica’s allegation that the mass leave “paralyzed the
company operation on that day” has remained unproved.195 As to the Nature of the Act
a. Strike proper
b. Sit-down strike – occurs when a group of employees or others
RATIONALE FOR REGULATION BY LAW
interested in obtaining a certain objective in a particular business
- A strike is the most preeminent of the economic weapons of workers
forcibly take over possession of the property of such business,
which they unsheathe to force management to agree to an equitable
establish themselves within the plant, stop its production and refuse
sharing of the joint product of labor and capital. Undeniably, strikes
access to the owners or to the others desiring to work. It is a
exert some disquieting effects not only on the relationship between
combination of the strike plus a refusal of the strikers to leave the
labor and management but also on the general peace and progress
plant and machines, and a refusal to permit the latter to be operated.
of society. Our laws thus regulate their exercise within reasons by
c. Slowdown – wilful reduction in the rate of work by a group of
employees for the purpose of restricting the output of the employer.
It is a method by the employees, without seeking a complete
stoppage of work, retard the production and distribution in an effort
191 ILAW AT BUKLOD NG MANGGAGAWA V. NLRC (1991)
192 BLTB CO. V. NLRC (1992)
193 BUKLURAN SA CLOTHMAN KNITTING CORP. V. CA (2005)
194 STA. ROSA COCA-COLA PLANT EES UNION V. CBP (2007) 196 LAPANDAY WORKERS UNION (1995)
195 NARANJO V. BIOMEDICA HEALTH CARE (2012) 197 SUICO V. NLRC (2007)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 57 79
B. Typs of Concerted Activities || Strike || GROUNDS
« As to Degree of Employee Interest »

to compel compliance by the employer with the labor demands made parties, the submission of the cases to the grievance machinery of
upon him. the CBA, if one is available, so that they may be subjected to
d. Partial/Quickie – intermittent, unannounced work stoppage, separate voluntary arbitration proceedings, or simply seek to
including slowdowns, unauthorized extension of rest periods, and terminate the pending voluntary arbitration case and complete the
walkouts for portions of a shift or for entire shifts. Sometimes, it is mandatory procedure for a lawful strike. The union should have
used interchangeably with wildcat strike which is a work stoppage availed themselves of any of these alternative remedies instead of
that violates the labor contract and is not authorized by the union. resorting to a drastic and unlawful measure, specifically, the holding
a wildcat strike.201
As to Degree of Employee Interest
a. Primary – declared by the employees who have a direct and
immediate interest, whether economic or otherwise, in the subject of Note:
the dispute, which exists between them and the employer, e.g. raise in - It is recognized that during the pendency of an economic strike an
wages, employer’s refusal to bargain employer may take steps to continue and protect his business by
b. Secondary – coercive measure adopted by workers against an supplying places left vacant by the strikers, and is not bound to
employer connected by product or employment with alleged unfair discharge those hired for that purpose upon election of the strikers
labor conditions or practices. It occurs when a group of employees to resume their employment. 202
refuse in concert to remain at work for an employer, not because of
any complaint over their labor standards under him, but because he GROUNDS
persists in dealing with a third person against whom they have a
Book V, Rule XXII, Section 5
grievance.
Grounds for strike or lockout. A strike or lockout may be declared in cases of
c. Sympathetic Strike – the striking employees have no demands or bargaining deadlocks and unfair labor practices. Violations of collective
grievances of their own, but strike for the purpose of directly or bargaining agreements, except flagrant and/or malicious refusal to comply
indirectly aiding others, without direct relation to the advancement of with its economic provisions, shall not be considered unfair labor practice and
the interest of the strikes. shall not be strikeable. No strike or lockout may be declared on grounds
involving inter-union and intra-union disputes without first having filed a
As to the Purpose or Nature of Employee Interest notice of strike or lockout or without the necessary strike or lockout vote
a. Economic strike – intended to force wage and other concessions from having been obtained and reported to the Board. Neither will a strike be
the employer, which he is not required by law to grant declared after assumption of jurisdiction by the Secretary or after certification
b. ULP strike – called against the ULP of the employer, usually for the or submission of the dispute to compulsory or voluntary arbitration or during
purpose of making it desist from further commission of such the pendency of cases involving the same grounds for the strike or lockout.
practices.
Note:
Jurisprudence on Conversion
- The subsequent withdrawal of petitioners' complaint for ULP, which - Strike is recognized as a valid weapon in collective bargaining. It may
was granted by the LA, who also considered the case closed and be declared to bring pressure upon the other party, where an
terminated may not, therefore, be considered as having converted impasse has arisen during bargaining negotiations or when the
their other grievance into economic demands. 198 company commits ULP, subject to statutory requirements.

In Cases of Unfair Labor Practice


- A strike otherwise valid, if violent in character, may be placed Article 277 (c)
beyond the pale. Care is to be taken, however, especially where an Strike, Picketing and Lockouts
In case of bargaining deadlocks, the duly certified or recognized bargaining
unfair labor practice is involved, to avoid stamping it with
agent may file a notice of strike or the employer may file a notice of lockout
illegality just because it is tainted with such acts. To avoid with the Ministry at least 30 day before the intended date thereof. In cases of
rendering illusory the recognition of the right to strike, responsibility unfair labor practice, the period of notice shall be 15 days and in the absence of
in such a case should be individual and not collective. A different a duly certified or recognized bargaining agent, the notice of strike may be filed
conclusion would be called for, of course, if the existence of force by any legitimate labor organization in behalf of its members. However, in case
while the strike lasts is pervasive and widespread, consistently and of dismissal from employment of union officers duly elected in accordance
deliberately resorted to as a matter of policy. It could be reasonably 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
concluded then that even if justified as to ends, it becomes illegal
shall not apply and the union may take action immediately.
because of the means employed.199
Bargaining Deadlock: Economic/ULP Allowable Strikes:
- Initially the strike staged by the Union was meant to compel the 1. Bargaining Deadlock
Company to grant it certain economic benefits set forth in its 2. ULP
proposal for collective bargaining. The strike was an economic one, o For violations of CBA, such violation must be GROSS
and the striking employees would have a right to be reinstated if, in Prohibited Strikes
the interim, the employer had not hired other permanent workers to 1. Non-Gross violations of the CBA
replace them. But the strike changed its character from the time 2. On grounds involving inter/intra-union disputes
the Company refused to reinstate complainants because of their 3. After assumption of jurisdiction
union activities after it had offered to admit all the strikers and in 4. After certification for compulsory arbitration/preventive mediation
fact did readmit the others. It was then converted into an unfair 5. After submission to voluntary arbitration
labor practice strike.200 6. During pendency of cases involving the same grounds for the strike
Non-Conversion: Strike to Lockout 7. Without the necessary procedural requirements as set by law
- If the union believed that the disciplinary measures had nothing to 8. In cases of Wage Distortion
do with the issues under arbitration, then they should have availed 9. In cases where the law prohibits certain employees from
of the appropriate remedies under the Labor Code, such as the participating in a strike.
institution of cases of illegal dismissal or, by agreement of the

198 MASTER IRON LABOR V NLRC (1993)


199 SHELL OIL WORKERS’ UNION V SHELL (1971) 201 SUKHOTHAI CUISINE & RESTAURANT V. CA (2006)
200 CONSOLIDATED LABOR ASSOC. OF THE PH V. MARSMAN AND CO. (1964) 202 CONSOLIDATED LABOR ASSOC. OF THE PH V. MARSMAN AND CO. (1964)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 58 79
B. Typs of Concerted Activities || Strike || GROUNDS
« Jurisprudence on Intra-Union Dispute »

Assumption of Jurisdiction improved offer of the employer on or before the 30th day of the strike. When
at least a majority of the union members vote to accept the improved offer the
Article 277 (b)
striking workers shall immediately return to work and the employer shall
Strikes, picketing and lockouts. Workers shall have the right to engage in thereupon readmit them upon the signing of the agreement.
concerted activities for purposes of collective bargaining or for their mutual
In case of a lockout, the Department of Labor and Employment shall also
benefit and protection. The right of legitimate labor organizations to strike and
conduct a referendum by secret balloting on the reduced offer of the union on
picket and of employers to lockout, consistent with the national interest, shall
or before the 30th day of the lockout. When at least a majority of the board of
continue to be recognized and respected. However, no labor union may strike
directors or trustees or the partners holding the controlling interest in the case
and no employer may declare a lockout on grounds involving inter-union and
of a partnership vote to accept the reduced offer, the workers shall
intra-union disputes.
immediately return to work and the employer shall thereupon readmit them
Article 277 (g) upon the signing of the agreement.
Strikes, picketing and lockouts. When, in his opinion, there exists a labor
dispute causing or likely to cause a strike or lockout in an industry Intra-Union Dispute
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 Book V, Rule XI, Section 1
the Commission for compulsory arbitration. Such assumption or certification Coverage.
shall have the effect of automatically enjoining the intended or impending A. Inter/Intra-union disputes shall include:
strike or lockout as specified in the assumption or certification order. If one has
(a) conduct or nullification of election of officers of unions nad workers’
already taken place at the time of assumption or certification, all striking or
associations;
locked out employees shall immediately return-to-work and the employer
(b) audit/accounts examination of union or workers’ association funds;
shall immediately resume operations and readmit all workers under the same
(c) deregistration of CBAs;
terms and conditions prevailing before the strike or lockout. The Secretary of
(d) validity/invalidity of union affiliation or disaffiliation;
Labor and Employment or the Commission may seek the assistance of law
(e) validity/invalidity of acceptance/non-acceptance for union membership;
enforcement agencies to ensure compliance with this provision as well as with
(f) validity/invalidity of voluntary recognition;
such orders as he may issue to enforce the same.
(g) opposition to application for union or cba registration;
In line with the national concern for and the highest respect accorded to the (h) violations of or disagreements over any provision of the constitution and
right of patients to life and health, strikes and lockouts in hospitals, clinics and by-laws of a union or workers’ association;
similar medical institutions shall, to every extent possible, be avoided, and all (i) disagreements over chartering or registration of LOs or the registration of
serious efforts, not only by labor and management but government as well, be CBAs;
exhausted to substantially minimize, if not prevent, their adverse effects on (j) violations of the rights and conditions of membership in a union or
such life and health, through the exercise, however legitimate, by labor of its workers’ association;
right to strike and by management to lockout. In labor disputes adversely (k) violations of rights of LLOs, except interpretation of CBAs;
affecting the continued operation of such hospitals, clinics or medical (l) validity/invalidity of impeachment/expulsion/suspension or any
institutions, it shall be the duty of the striking union or locking-out employer disciplinary action meted against any officer and member, including those
to provide and maintain an effective skeletal workforce of medical and other arising from non-compliance with the reportorial requirements under
health personnel, whose movement and services shall be unhampered and Rule V;
unrestricted, as are necessary to insure the proper and adequate protection of (m) such other disputes or conflicts involving the rights to self-organization,
the life and health of its patients, most especially emergency cases, for the union membership and collective bargaining:
duration of the strike or lockout. In such cases, therefore, the Secretary of 1) between and among LLOs; and
Labor and Employment may immediately assume, within twenty four (24) 2) between and among members of a union or workers’ association.
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
B. Other labor relations disputes, not otherwise covered by Article 217 Old LC,
this purpose, the contending parties are strictly enjoined to comply with such
shall include:
orders, prohibitions and/or injunctions as are issued by the Secretary of Labor
and Employment or the Commission, under pain of immediate disciplinary (a) any conflict between:
action, including dismissal or loss of employment status or payment by the 1) a labor union and the employer, or
locking-out employer of backwages, damages and other affirmative relief, 2) a labor union and a group that is not a LO; or
even criminal prosecution against either or both of them. 3) a labor union and an individual who is not member of such union;
(b) cancellation of registration of unions and workers associations filed by
The foregoing notwithstanding, the President of the Philippines shall not be
individual’s other than its members, or group that is not a LO; and
precluded from determining the industries that, in his opinion, are
(c) a petition for interpleader involving labor relations.
indispensable to the national interest, and from intervening at any time and
assuming jurisdiction over any such labor dispute in order to settle or Section 2
terminate the same
Effects of the Filing/Pendency of Inter/Intra-Union and Other Related Labor
Article 278 (a) Relations Disputes. The rights, relationships and obligations of the parties
litigants against each other and other parties-in-interest prior to the
Prohibited activities. No labor organization or employer shall declare a strike
institution of the petition shall continue to remain during the pendency of the
or lockout without first having bargained collectively in accordance with Title
petition and until the date of finality of the decision rendered therein.
VII of this Book or without first having filed the notice required in the preceding
Thereafter, the rights, relationships and obligations of the parties litigants
Article or without the necessary strike or lockout vote first having been
against each other and other parties-in-interest shall be governed by the
obtained and reported to the Ministry.
decision so ordered.
No strike or lockout shall be declared after assumption of jurisdiction by the
The filing or pendency of any inter/intra-union dispute and other related labor
President or the Minister or after certification or submission of the dispute to
relations dispute is not a prejudicial question to any PCE and shall not be a
compulsory or voluntary arbitration or during the pendency of cases involving
ground for the dismissal of a PCE or suspension of proceedings for certification
the same grounds for the strike or lockout.
election.
Any worker whose employment has been terminated as a consequence of any
unlawful lockout shall be entitled to reinstatement with full backwages. Any Jurisprudence on Intra-Union Dispute
union officer who knowingly participates in an illegal strike and any worker or - An intra-union dispute is a conflict within the union which includes
union officer who knowingly participates in the commission of illegal acts
violations or disagreements arising from the CBL or right within the
during a strike may be declared to have lost his employment status: Provided,
That mere participation of a worker in a lawful strike shall not constitute
labor code. It is the BLR and not LA which has the jurisdiction to hear
sufficient ground for termination of his employment, even if a replacement had such cases.203
been hired by the employer during such lawful strike. o General rule, in intra-union disputes, redress must first be
sought within the organization in accordance with the CBL. An
Article 279
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 203 MIRANDA JR. V. ASIAN TERMINALS (2009)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 59 79
B. Typs of Concerted Activities || Strike || STRIKING PARTY
« General Rule: »

exception is when such procedure would amount to a denial of and unfair labor practices. The employer may declare a lockout in the same
justice or would be illusory or vain.204 cases. In the absence of a certified or duly recognized bargaining
- There is a valid case of ULP that does not concern an intra-union representative, any legitimate labor organization in the establishment may
dispute when the issue raised pertains only to the validity of the acts declare a strike but only on grounds of unfair labor practices.
of management (in negotiating with another union) in light of the General Rule:
fact that it still has an existing CBA with the SEBA.205 - Only legitimate labor organizations have the right to strike.

No Strike Clause
STRIKING PARTY GROUNDS
- A “no strike, no lock-out” provision in the CBA is a valid stipulation.
ORGANIZED Only the duly ULP or
It may be invoked by an employer only when the strike is economic
ESTABLISHMENTS certified/recognized bargaining Bargaining
in nature or one which is conducted to force wage or other
agent may strike. Deadlock
concessions from the employer that are not mandated to be granted
UNORGANIZED Any legitimate labor ULP only
by the law itself. It is inapplicable to prevent a strike which is
ESTABLISHMENTS organization.
grounded on ULP.206

Rationale for prohibition of strikes: PROCEDURAL REQUIREMENTS


- Strikes staged in violation of agreements providing for arbitration Book V, Rule XXII, Section 5
are illegal, since these agreements must be strictly adhered to and Grounds for strike or lockout. A strike or lockout may be declared in cases of
respected if their ends are to be achieved. This is supportive of the bargaining deadlocks and unfair labor practices. Violations of collective
principle that industrial peace cannot be secured through bargaining agreements, except flagrant and/or malicious refusal to comply
compulsion by law. Relations between private employers and their with its economic provisions, shall not be considered unfair labor practice and
employees rest on an essentially voluntary basis, subject to the shall not be strikeable. No strike or lockout may be declared on grounds
involving inter-union and intra-union disputes without first having filed a
minimum requirements of wage laws and other labor and welfare
notice of strike or lockout or without the necessary strike or lockout vote
legislation.207 having been obtained and reported to the Board. Neither will a strike be
declared after assumption of jurisdiction by the Secretary or after certification
BIFLEX AND FILFLEX CASE208 PHILIPPINE BLOOMING MILLS or submission of the dispute to compulsory or voluntary arbitration or during
There was no notice to the The union properly notified the the pendency of cases involving the same grounds for the strike or lockout.
employer that the union will be employer that the union will be Section 6
joining the welga ng bayan. staging a protest at Malacañang. Who may declare a strike or lockout. Any certified or duly recognized
The court ruled that the right of The protest was not rooted in any bargaining representative may declare a strike in cases of bargaining deadlocks
enterprises to reasonable returns industrial dispute. As such, they and unfair labor practices. The employer may declare a lockout in the same
on investments, and to expansion were merely exercising their right cases. In the absence of a certified or duly recognized bargaining
and growth must also be to freedom of expression, their representative, any legitimate labor organization in the establishment may
considered, otherwise, oppression right of assembly, and their right declare a strike but only on grounds of unfair labor practices.
or self-destruction of capital in to petition for redress of Section 7
order to promote the interests of grievances. Notice of strike or lockout. In bargaining deadlocks, a notice of strike or
labor would be sanctioned. lockout shall be filed with the regional branch of the Board at least thirty (30)
days before the intended date thereof, a copy of said notice having been served
STRIKING PARTY on the other party concerned. In cases of unfair labor practice, the period of
notice shall be fifteen (15) days. However, in case of unfair labor practice
Article 277 (b) involving the
Strikes, picketing and lockouts. Workers shall have the right to engage in dismissal from employment of any union officer duly elected in accordance
concerted activities for purposes of collective bargaining or for their mutual with the union constitution and by-laws which may constitute union-busting
benefit and protection. The right of legitimate labor organizations to strike and where the existence of the union is threatened, the fifteen-day cooling-off
picket and of employers to lockout, consistent with the national interest, shall period shall not apply and the union may take action immediately after the
continue to be recognized and respected. However, no labor union may strike strike vote is conducted and the results thereof submitted to the appropriate
and no employer may declare a lockout on grounds involving inter-union and regional branch of the Board.
intra-union disputes.
Section 8
Article 277 (c) Contents of notice. The notice shall state, among others, the names and
Strike, Picketing and Lockouts addresses of the employer and the union involved, the nature of the industry to
In case of bargaining deadlocks, the duly certified or recognized bargaining which the employer belongs, the number of union members and of the workers
agent may file a notice of strike or the employer may file a notice of lockout in the bargaining unit, and such other relevant data as may facilitate the
with the Ministry at least 30 day before the intended date thereof. In cases of settlement of the dispute, such as a brief statement or enumeration of all
unfair labor practice, the period of notice shall be 15 days and in the absence of pending labor disputes involving the same parties.
a duly certified or recognized bargaining agent, the notice of strike may be filed In cases of bargaining deadlocks, the notice shall, as far as practicable, further
by any legitimate labor organization in behalf of its members. However, in case state the unresolved issues in the bargaining negotiations and be accompanied
of dismissal from employment of union officers duly elected in accordance by the written proposals of the union, the counter-proposals of the employer
with the union constitution and by-laws, which may constitute union busting, and the proof of a request for conference to settle the differences. In cases of
where the existence of the union is threatened, the 15-day cooling-off period unfair labor practices, the notice shall, as far as practicable, state the acts
shall not apply and the union may take action immediately. complained of and the efforts taken to resolve the dispute amicably.
Book V, Rule XXII, Section 6 In case a notice does not conform with the requirements of this and the
foregoing section/s, the regional branch of the Board shall inform the
Who may declare a strike or lockout. Any certified or duly recognized
concerned party of such fact.
bargaining representative may declare a strike in cases of bargaining deadlocks
Section 9
204 VILLAR V. INCIONG (1983) Action on Notice. Upon receipt of the notice, the regional branch of the Board
205 EMPLOYEES’ UNION OF BAYER PHIL V. BAYER PHIL, INC. (2010) shall exert all efforts at mediation and conciliation to enable the parties to
206 PANAY ELECTRIC CO., INC. V. NLRC (1995) settle the dispute amicably. The regional branch of the Board may, upon
207 CONSOLIDATED LABOR ASSOC. OF THE PH V. MARSMAN AND CO. (1964)
agreement of the parties, treat a notice as a preventive mediation case. It shall
208 BIFLEX PHILS. INC. LABOR UNION V. FILFLEX INDUSTRIAL & MFG. CORP. &
also encourage the parties to submit the dispute to voluntary arbitration.
BIFLEX PH INC. (2006)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 60 79
B. Typs of Concerted Activities || Strike || PROCEDURAL REQUIREMENTS
« Effort to Bargain »

During the proceedings, the parties shall not do any act which may disrupt or providing for a more expeditious manner of collective bargaining, it shall be the
impede the early settlement of the dispute. They are obliged, as part of their duty of employer and the representatives of the employees to bargain
duty to bargain collectively in good faith and to participate fully and promptly collectively in accordance with the provisions of this Code.
in the conciliation meetings called by the regional branch of the Board.
Article 262
A notice, upon agreement of the parties, may be referred to alternative modes
of dispute resolution, including voluntary arbitration. Meaning of duty to bargain collectively. The duty to bargain collectively
means the performance of a mutual obligation to meet and convene promptly
Section 10 and expeditiously in good faith for the purpose of negotiating an agreement
Strike or lockout vote. A decision to declare a strike must be approved by a with respect to wages, hours of work and all other terms and conditions of
majority of the total union membership in the bargaining unit concerned employment including proposals for adjusting any grievances or questions
obtained by secret ballot in meetings or referenda called for the purpose. A arising under such agreement and executing a contract incorporating such
decision to declare a lockout must be approved by a majority of the Board of agreements if requested by either party but such duty does not compel any
Directors of the employer, corporation or association or the partners in a party to agree to a proposal or to make any concession.
partnership obtained by a secret ballot in a meeting called for the purpose.
The regional branch of the Board may, at its own initiative or upon request of
any affected party, supervise the conduct of the secret balloting. In every case, Filing of Notice of Intention
the union or the employer shall furnish the regional branch of the Board and
Article 277 (c)
the notice of meetings referred to in the preceding paragraph at least twenty-
Strike, Picketing and Lockouts
four (24) hours before such meetings as well as the results of the voting at
least seven (7) days before the intended strike or lockout, subject to the In case of bargaining deadlocks, the duly certified or recognized bargaining
cooling-off period provided in this Rule. 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
Section 11 unfair labor practice, the period of notice shall be 15 days and in the absence of
Declaration of strike or lockout. Should the dispute remain unsettled after a duly certified or recognized bargaining agent, the notice of strike may be filed
the lapse of the requisite number of days from the filing of the notice of strike by any legitimate labor organization in behalf of its members. However, in case
or lockout and of the results of the election required in the preceding section, of dismissal from employment of union officers duly elected in accordance
the labor union may strike or the employer may lock out its workers. The with the union constitution and by-laws, which may constitute union busting,
regional branch of the Board shall continue mediating and conciliating. where the existence of the union is threatened, the 15-day cooling-off period
shall not apply and the union may take action immediately.

Article 277 (d)


Effort to Bargain
Strike, Picketing and Lockouts
Article 278 (a) The notice must be in accordance with such implementing rules and regulations
Prohibited activities. No labor organization or employer shall declare a strike as the Minister of Labor and Employment may promulgate.
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 277 (e)
Article or without the necessary strike or lockout vote first having been Strike, Picketing and Lockouts
obtained and reported to the Ministry. During the cooling-off period, it shall be the duty of the Ministry to exert all
No strike or lockout shall be declared after assumption of jurisdiction by the efforts at mediation and conciliation to effect a voluntary settlement. Should
President or the Minister or after certification or submission of the dispute to the dispute remain unsettled until the lapse of the requisite number of days
compulsory or voluntary arbitration or during the pendency of cases involving from the mandatory filing of the notice, the labor union may strike or the
the same grounds for the strike or lockout. employer may declare a lockout.
Any worker whose employment has been terminated as a consequence of any
unlawful lockout shall be entitled to reinstatement with full backwages. Any Article 278 (a)
union officer who knowingly participates in an illegal strike and any worker or Prohibited activities. No labor organization or employer shall declare a strike
union officer who knowingly participates in the commission of illegal acts or lockout without first having bargained collectively in accordance with Title
during a strike may be declared to have lost his employment status: Provided, VII of this Book or without first having filed the notice required in the preceding
That mere participation of a worker in a lawful strike shall not constitute Article or without the necessary strike or lockout vote first having been
sufficient ground for termination of his employment, even if a replacement had obtained and reported to the Ministry.
been hired by the employer during such lawful strike. 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
Article 260 compulsory or voluntary arbitration or during the pendency of cases involving
Procedure in collective bargaining. The following procedures shall be observed the same grounds for the strike or lockout.
in collective bargaining:
Any worker whose employment has been terminated as a consequence of any
(a) When a party desires to negotiate an agreement, it shall serve a written unlawful lockout shall be entitled to reinstatement with full backwages. Any
notice upon the other party with a statement of its proposals. The other union officer who knowingly participates in an illegal strike and any worker or
party shall make a reply thereto not later than ten (10) calendar days from union officer who knowingly participates in the commission of illegal acts
receipt of such notice; during a strike may be declared to have lost his employment status: Provided,
(b) Should differences arise on the basis of such notice and reply, either party That mere participation of a worker in a lawful strike shall not constitute
may request for a conference which shall begin not later than ten (10) sufficient ground for termination of his employment, even if a replacement had
calendar days from the date of request. been hired by the employer during such lawful strike.
(c) If the dispute is not settled, the Board shall intervene upon request of
either or both parties or at its own initiative and immediately call the Book V, Rule XXII, Section 7
parties to conciliation meetings. The Board shall have the power to issue Notice of strike or lockout. In bargaining deadlocks, a notice of strike or
subpoenas requiring the attendance of the parties to such meetings. It shall lockout shall be filed with the regional branch of the Board at least thirty (30)
be the duty of the parties to participate fully and promptly in the days before the intended date thereof, a copy of said notice having been served
conciliation meetings the Board may call; on the other party concerned. In cases of unfair labor practice, the period of
(d) During the conciliation proceedings in the Board, the parties are prohibited notice shall be fifteen (15) days. However, in case of unfair labor practice
from doing any act which may disrupt or impede the early settlement of involving the
the disputes; and dismissal from employment of any union officer duly elected in accordance
(e) The Board shall exert all efforts to settle disputes amicably and encourage with the union constitution and by-laws which may constitute union-busting
the parties to submit their case to a voluntary arbitrator. where the existence of the union is threatened, the fifteen-day cooling-off
period shall not apply and the union may take action immediately after the
Article 261 strike vote is conducted and the results thereof submitted to the appropriate
Duty to bargain collectively in the absence of collective bargaining regional branch of the Board.
agreements. In the absence of an agreement or other voluntary arrangement

_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 61 79
B. Typs of Concerted Activities || Strike || TEST OF LEGALITY
« Observance of Cooling-Off Periods »

Observance of Cooling-Off Periods NUWHRAIN-MANILA PAVILION HOTEL CHAPTER V. NLRC (2008)


The Union failed to observe the mandatory 30-day cooling-off
Article 277 (c)
period and the 7-day strike ban before it conducted the strike
Strike, Picketing and Lockouts on January 18, 2002. Records reveal that:
In case of bargaining deadlocks, the duly certified or recognized bargaining
Dec. 20, 2001: The Union filed its Notice of Strike.
agent may file a notice of strike or the employer may file a notice of lockout
F: Jan. 19, 2002: End of the 30-day cooling-off period.
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
Jan. 14, 2002: The strike vote was held.
a duly certified or recognized bargaining agent, the notice of strike may be filed Jan. 18, 2002: Strike vote was submitted to the NCMB.
by any legitimate labor organization in behalf of its members. However, in case Therefore, the 7-day strike ban should have prevented them
of dismissal from employment of union officers duly elected in accordance from holding a strike until January 25, 2002.
with the union constitution and by-laws, which may constitute union busting, BECAUSE OF VARYING JURISPRUDENCE ON THE COOLING-OFF
where the existence of the union is threatened, the 15-day cooling-off period MA’AM: PERIODS, IT IS SAFER TO ADVISE A LABOR UNION TO SEPARATE
shall not apply and the union may take action immediately. THE COUNTING OF THE 15/30-DAY AND 7-DAY STRIKE BAN.

Article 277 (e)


Strike, Picketing and Lockouts TEST OF LEGALITY
During the cooling-off period, it shall be the duty of the Ministry to exert all
Legal Strike
efforts at mediation and conciliation to effect a voluntary settlement. Should
the dispute remain unsettled until the lapse of the requisite number of days Purpose and Means Test
from the mandatory filing of the notice, the labor union may strike or the - In cases not falling within the prohibition against strikes, the legality
employer may declare a lockout. or illegality of a strike depends:212
Note: o First, upon the purpose for which it is maintained, and,
o Second, upon the means employed in carrying it on.
- In the event the result of the strike/lockout ballot is filed within the
- If the purpose which the laborers intend to accomplish by means of
cooling-off period, the 7-day requirement shall be counted from the
a strike is trivial, unreasonable or unjust or if in carrying on the
day following the expiration of the cooling-off period.210
strike the strikers should commit violence or cause injuries to
Strike Vote persons or damage to property the strike, although not prohibited
Article 277 (f) by injunction, may be declared by the court illegal, with the adverse
Strikes, picketing and lockouts. A decision to declare a strike must be consequences to the strikers.213
approved by a majority of the total union membership in the bargaining unit
concerned, obtained by secret ballot in meetings or referenda called for that Guidelines and Balancing of Interest
purpose. A decision to declare a lockout must be approved by a majority of the
board of directors of the corporation or association or of the partners in a - The right to strike, while constitutionally recognized, is not without
partnership, obtained by secret ballot in a meeting called for that purpose. The legal restrictions. The Labor Code regulates the exercise of said right
decision shall be valid for the duration of the dispute based on substantially by balancing the interests of labor and management in the light of
the same grounds considered when the strike or lockout vote was taken. The the overarching public interest. 214
Ministry may, at its own initiative or upon the request of any affected party, - Under the circumstances (sporadic acts of violence), it would be
supervise the conduct of the secret balloting. In every case, the union or the going too far to consider that the strike became illegal. This is not by
employer shall furnish the Ministry the results of the voting at least 7 days any means to condone the utilization of force by labor to attain its
before the intended strike or lockout, subject to the cooling-off period herein
provided.
objectives. It is only to show awareness that in labor conflicts, the
tension that fills the air as well as the feeling of frustration and
Article 278 (a) bitterness could break out in sporadic acts of violence. In weighing
Prohibited activities. No labor organization or employer shall declare a strike of interests in the balance, the ban the law imposes on ULP by
or lockout without first having bargained collectively in accordance with Title management that could provoke a strike and its requirement that it
VII of this Book or without first having filed the notice required in the preceding be conducted peaceably, it would be unjustified to stamp the strike
Article or without the necessary strike or lockout vote first having been with illegality.215
obtained and reported to the Ministry.
No strike or lockout shall be declared after assumption of jurisdiction by the
President or the Minister or after certification or submission of the dispute to Defenses: Good Faith
compulsory or voluntary arbitration or during the pendency of cases involving G.R.: A strike based on “non-strikeable grounds” is illegal.
the same grounds for the strike or lockout. A strike based on a non-existent ULP act is illegal.
Any worker whose employment has been terminated as a consequence of any
E: If the EEs believe in good faith that ULP acts exist, even if no ULP
unlawful lockout shall be entitled to reinstatement with full backwages. Any
union officer who knowingly participates in an illegal strike and any worker or acts were actually committed.
union officer who knowingly participates in the commission of illegal acts - A mere claim of good faith would not justify a strike; in addition
during a strike may be declared to have lost his employment status: Provided, thereto, the circumstances must have warranted such belief.216
That mere participation of a worker in a lawful strike shall not constitute - The presumption of legality of a strike prevails, even if the
sufficient ground for termination of his employment, even if a replacement had allegations of ULP are subsequently found to be untrue.217
been hired by the employer during such lawful strike.
Note:
- The implementing rules clarify Article 263(c) in that the union may
strike "immediately" provided that the strike vote is conducted, the
results thereof submitted "in every case" at least seven days before
the intended strike or lockout. In sum, in case of alleged union
busting, the three remaining requirements – notice, strike vote, and
seven-day report period – cannot be dispensed with. 211

212 CHUAYUCO STEEL MFG. CORP. V. BUKLOD (2007)


213
Id.
214 STAMFORD MARKETING CORP. V. JOSEPHINE JULIAN (2004)
209 NSFW VS. OVEJERA (1982) 215 SHELL OIL WORKERS UNION V SHELL
210 NSFW VS. OVEJERA (1982) 216 NUWHRAIN V. NLRC (1998)
211 SUKHOTHAI CUISINE & RESTAURANT V. CA 217 MASTER IRON LABOR UNION V. NLRC (1993)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 62 79
B. Typs of Concerted Activities || Strike || TEST OF LEGALITY
« Illegal Strike »

RELIANCE SURETY & INSURANCE CO. V NLRC (1991) In case of a lockout, the Department of Labor and Employment shall also
The company changed the seating arrangement in its underwriting conduct a referendum by secret balloting on the reduced offer of the union on
department to “avoid unnecessary loss of productive working time or before the 30th day of the lockout. When at least a majority of the board of
due to personal and non-work-related conversations, phone calls, directors or trustees or the partners holding the controlling interest in the case
and visits by personnel to other departments. Because of this, a of a partnership vote to accept the reduced offer, the workers shall
heated discussion between them and management took place, immediately return to work and the employer shall thereupon readmit them
where it was alleged that the EEs hurled “unprintable insults” to upon the signing of the agreement.
F:
the supervisors. The EEs were subsequently dismissed for
misconduct and insubordination. The EEs filed for ULP and Illegal Effect of converting a Notice of Strike to Preventive Mediation:
Dismissal but because of the case hibernating in the NLRC, the - The effect of the declaration to make the notice a preventive
Union filed a NOS and subsequently went on strike during the mediation case was to drop the case from the docket of notice of
initial conference, effectively obstructing the free ingress and strikes, as provided in Rule 41 of the NCMB Rules, as if there was no
egress from the company premises. notice of strike. During the pendency of preventive mediation
I: WON the strike was done in good faith. proceedings no strike could be legally declared.218
NO. There is no question that the strike was prompted by no
actual, existing ULP by the Company. In effecting a change in the Categories of an illegal strike219 :
seating arrangement in the office of the underwriting department,
1. Those contrary to a specific prohibition of law,
the petitioner merely exercised a reasonable prerogative
e.g. strike by government employees;
employees could not validly question, much less assail as an act of
H: 2. Those violating a specific requirement of law,
ULP. The Court is indeed at a loss how rearranging furniture, as it
were, can justify a four-month-long strike. The Court reiterates e.g. requisites of a valid strike;
that good faith is still a valid defense against claims of illegality of 3. Those declared for an unlawful purpose,
a strike. However, there is no semblance of good faith here, but e.g. inducing the ER to commit ULP;
rather, plain arrogance, pride, and cynicism of certain workers. 4. Those that employ unlawful means,
Illegal Strike e.g. strike as terrorism;
Basis of Illegality 5. Those declared in violation of an existing injunction,
Article 277 (b)
e.g. a violation of the SOLE’s return-to-work order; and
Strikes, picketing and lockouts. Workers shall have the right to engage in 6. Those contrary to an existing agreement,
concerted activities for purposes of collective bargaining or for their mutual e.g. no-strike clauses in the CBA.
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 MAGDALA MULTIPURPOSE & LIVELIHOOD COOP V. KILUSANG
and no employer may declare a lockout on grounds involving inter-union and MANGGAGAWA NG LGS (2011)
intra-union disputes. The union here filed for a Notice of Strike prior to acquiring legal
F:
personality.
Article 277 (c) I: WON the strike is legal.
Strike, Picketing and Lockouts NO. There is no union to talk about prior to the registration, and
In case of bargaining deadlocks, the duly certified or recognized bargaining H:
thus could not legally represent the eventual union and members.
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 Article 270
a duly certified or recognized bargaining agent, the notice of strike may be filed Employer as Bystander. In all cases whether the petition for certification
by any legitimate labor organization in behalf of its members. However, in case election is filed by an employer or a legitimate labor organization, the
of dismissal from employment of union officers duly elected in accordance employer shall not be considered a party there to with a concomitant right to
with the union constitution and by-laws, which may constitute union busting, oppose a petition for certification election. The employer’s participation in such
where the existence of the union is threatened, the 15-day cooling-off period proceedings shall be limited to: (1) being notified or informed of petitions of
shall not apply and the union may take action immediately. such nature; and (2) submitting the list of employees during the pre- election
conference should the Med-Arbiter act favourably on the petition.
Article 278 (a)
Prohibited activities. No labor organization or employer shall declare a strike
or lockout without first having bargained collectively in accordance with Title Illegal Acts/Prohibited Activities
VII of this Book or without first having filed the notice required in the preceding 1. Blocking the free ingress to / egress from the work premises for
Article or without the necessary strike or lockout vote first having been lawful purposes.
obtained and reported to the Ministry.
2. Obstruction of public thoroughfares.
No strike or lockout shall be declared after assumption of jurisdiction by the
3. Defiance and violation of the assumption of jurisdiction and the
President or the Minister or after certification or submission of the dispute to
return-to-work order of the Labor Secretary.
compulsory or voluntary arbitration or during the pendency of cases involving
the same grounds for the strike or lockout. 4. Leading, instigating and participating in a work slowdown (during
Any worker whose employment has been terminated as a consequence of any
the CBA negotiations), a form of strike undertaken by the union
unlawful lockout shall be entitled to reinstatement with full backwages. Any without complying with the mandatory legal requirements of a
union officer who knowingly participates in an illegal strike and any worker or strike notice and strike vote.220
union officer who knowingly participates in the commission of illegal acts 5. Threatening, coercin, and intimidating non-striking employees,
during a strike may be declared to have lost his employment status: Provided, officers, suppliers and customers.
That mere participation of a worker in a lawful strike shall not constitute 6. The resistance and defiance of a writ of preliminary injunction.
sufficient ground for termination of his employment, even if a replacement had 7. Acts of violence
been hired by the employer during such lawful strike.

Article 279
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 members vote to accept the improved offer the 218 SAN MIGUEL CORP. V. NLRC (2003)
striking workers shall immediately return to work and the employer shall 219 TOYOTA MOTORS PHIL. WORKERS’ ASSOCIATION V. NLRC (2007)
thereupon readmit them upon the signing of the agreement. 220 BAGONG PAGKAKAISA NG MANGGAGAWA NG TRIUMPH V. SOLE (2010)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 63 79
B. Typs of Concerted Activities || Strike || EMPLOYMENT OF STRIKE BREAKERS
« Illegal Strike »

How violent acts constitute prohibited activities221 § They may be terminated, not only when he/she actually
- The Labor Code does not require that violent acts be continuous nor commits an illegal act during a strike, but also if he/she
done for the entire duration of the strike. knowingly participates in an illegal strike.
- It also does not require that the employer should immediately § The responsibility of union officers, as main players in an illegal
report the illegal acts to have the strike declared as illegal. It is strike, is greater than that of the members and, therefore,
absurd to expect an employer to file a complaint at the first limiting the penalty of dismissal only for the former for
instance that an act of violence is alleged to be committed. participation in an illegal strike is in order.228
- But take note that heated altercations and occasional blows
exchanged on the picket line do not affect or diminish the right to Termination of Employment made by the employer
strike.222 - The act of dismissal is not intended to happen ipso facto but rather
- If the existence of force while the strike lasts is pervasive and as an option that can be exercised by the employer and after
widespread, consistently and deliberately resorted to as a matter compliance with the notice requirements for terminating an
of policy, it could be reasonably concluded then that even if justified employee.229
as to ends, the strike becomes illegal because of the means
employed.223 Note:
- NOTE: With violence committed on both sides, the management and - The essence of due process is the opportunity to be heard. What the
the employees, such violence cannot be a ground for declaring the law prohibits is not the absence of previous notice but the absolute
strike as illegal.224 absence thereof and the lack of opportunity to be heard. Where an
opportunity to be heard either through oral arguments or through
Effect of the dismissal of criminal cases against the union members pleadings is accorded, there is no denial of procedural due
- The mere fact that the criminal complaints against the terminated process.230
Union members were subsequently dismissed for one reason or
another does not extinguish their liability under the Labor Code. EMPLOYMENT OF STRIKE BREAKERS
Nor does such dismissal bar the admission of the affidavits,
Article 278 (c)
documents, and photos presented to establish their identity and
Prohibited Activities. No employer shall use or employ any strike-breaker, nor
guilt during the hearing of the petition to declare the strike illegal.225 shall any person be employed as a strike-breaker.

Article 219 (r)


Article 278 (a)
"Strike-breaker" means any person who obstructs, impedes, or interferes with
Prohibited activities. No labor organization or employer shall declare a strike
by force, violence, coercion, threats, or intimidation any peaceful picketing
or lockout without first having bargained collectively in accordance with Title
affecting wages, hours or conditions of work or in the exercise of the right of
VII of this Book or without first having filed the notice required in the preceding
self-organization or collective bargaining.
Article or without the necessary strike or lockout vote first having been
obtained and reported to the Ministry.
No strike or lockout shall be declared after assumption of jurisdiction by the IMPROVED OFFER BALLOTING AND STRIKES
President or the Minister or after certification or submission of the dispute to
Article 279
compulsory or voluntary arbitration or during the pendency of cases involving
the same grounds for the strike or lockout. 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
Any worker whose employment has been terminated as a consequence of any
improved offer of the employer on or before the 30th day of the strike. When
unlawful lockout shall be entitled to reinstatement with full backwages. Any
at least a majority of the union members vote to accept the improved offer the
union officer who knowingly participates in an illegal strike and any worker or
striking workers shall immediately return to work and the employer shall
union officer who knowingly participates in the commission of illegal acts
thereupon readmit them upon the signing of the agreement.
during a strike may be declared to have lost his employment status: Provided,
That mere participation of a worker in a lawful strike shall not constitute In case of a lockout, the Department of Labor and Employment shall also
sufficient ground for termination of his employment, even if a replacement had conduct a referendum by secret balloting on the reduced offer of the union on
been hired by the employer during such lawful strike. or before the 30th day of the lockout. When at least a majority of the board of
directors or trustees or the partners holding the controlling interest in the case
of a partnership vote to accept the reduced offer, the workers shall
Effect of Illegality; Liabilities of Participating Officer/Member immediately return to work and the employer shall thereupon readmit them
- The effects of illegal strikes, outlined in Article 264 of the Labor upon the signing of the agreement.
Code, make a distinction between participating workers and union Book V, Rule XXII, Section 12
officers.226 Improved offer balloting. In case of a strike, the regional branch of the Board
o Union Members: shall, at its own initiative or upon the request of any affected party, conduct a
§ The services of an ordinary striking worker cannot be referendum by secret balloting on the improved offer of the employer on or
terminated for mere participation in an illegal strike; before the 30th day of strike. When at least a majority of the union members
§ Clear, substantial and convincing proof must be adduced vote to accept the improved offer, the striking workers shall immediately
showing that he/she knowingly participated in the commission return to work and the employer shall thereupon re-admit them upon the
signing of the agreement.
of illegal acts during the strike.
§ But proof beyond reasonable doubt is not required. Substantial In case of a lockout, the regional branch of the Board shall also conduct a
referendum by secret balloting on the reduced offer of the union on or before
evidence available under the circumstances, which may justify
the 30th day of the lockout. When at least a majority of the board of directors
the imposition of the penalty of dismissal, may suffice. 227 or trustees or the partners holding the controlling interest in the case of
o Union Officers: partnership vote to accept the reduced offer, the workers shall immediately
return to work and the employer shall thereupon readmit them upon the
signing of the agreement.

221 A. SORIANO AVIATION V. EMPLOYEES ASSOCIATION OF A.S.A. (2009)


222 INSULAR V INSULAR
223 SHELL OIL WORKERS V SHELL
224 MALAYANG SAMAHAN NG MANGGAGAWA SA M. GREENFIELD V. RAMOS

225 C. ALCANTARA & SONS, INC. V. CA, NAGKAHIUSANG MAMUMUO SA

ALSONS-SPFL (2011) 228 SOLIDBANK CORP. V. SOLIDBANK UNION (2010)


226 PHIMCO INDUSTRIES, INC. V. PHIMCO INDUSTRIES LABOR ASSOC. (2010) 229 STAMFORD V JULIAN
227 TOYOTA MOTORS PHIL. WORKERS’ ASSOCIATION V. NLRC (2007) 230 EQUITABLE PCI BANKING V. RCBC (2004)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 64 79
C. Assumption of Jurisdiction/Compulsory Arbitration || picketing || DEFINITION, NATURE, PURPOSE OF PICKET LINE
« Policy »

PICKETING REGULATIONS/RESTRICTIONS, INNOCENT THIRD PARTY RULE


Book V, Rule XXII, Section 13 AND LIABILITIES
Peaceful picketing. Workers shall have the right to peaceful picketing. No - The right to picket may be regulated at the instance of third parties
person engaged in picketing shall commit any act of violence, coercion or or "innocent bystanders" if it appears that the inevitable result of
intimidation or obstruct the free ingress to or egress from the employer's its exercise is to create an impression that a labor dispute with
premises for lawful purposes, or obstruct public thoroughfares. which they have no connection or interest exists between them and
No person shall obstruct, impede or interfere with, by force, violence, coercion,
the picketing union OR constitute an invasion of their rights.236
threats or intimidation, any peaceful picketing by workers during any labor
controversy or in the exercise of the right to self-organization or collective Notes:
bargaining or shall aid or abet such obstruction or interference. No employer - The legality of bannering may depend upon the locality in which it
shall use or employ any person to commit such acts nor shall any person be
takes places, and the right to speak/publish may not be so used as
employed for such purpose.
to constitute a nuisance.
- The display of signs misstating the facts in respect of the labor
DEFINITION, NATURE, PURPOSE OF PICKET LINE dispute is not permitted.
Policy
- Workers shall have the right to peaceful picketing. PROHIBITED ACTIVITIES; PEACEFUL PICKETING
Article 278 (b)
Definition
Prohibited activities. No person shall obstruct, impede, or interfere with, by
- Picketing involves the presence of striking workers or their union
force, violence, coercion, threats or intimidation, any peaceful picketing by
brothers/sisters who pace back and forth before the place of employees during any labor controversy or in the exercise of the right to self-
business of an employer in the hope of being able to persuade organization or collective bargaining, or shall aid or abet such obstruction or
peacefully other workers not to work in the establishment, and interference.
customers not to do business there.
Book V, Rule XXII, Section 13
Nature: Peaceful picketing. Workers shall have the right to peaceful picketing. No
- Picketing almost always accompanies a strike. But there may be person engaged in picketing shall commit any act of violence, coercion or
picketing without strike because employees may picket without intimidation or obstruct the free ingress to or egress from the employer's
engaging in work stoppage. premises for lawful purposes, or obstruct public thoroughfares.
- Although picketing is a form of concerted action, not every No person shall obstruct, impede or interfere with, by force, violence, coercion,
concerted action is a strike. threats or intimidation, any peaceful picketing by workers during any labor
controversy or in the exercise of the right to self-organization or collective
- The picket line is an explosive front, charged with the emotions and bargaining or shall aid or abet such obstruction or interference. No employer
fierce loyalties of the union- management dispute. It may be shall use or employ any person to commit such acts nor shall any person be
marked by colorful name-calling, intimidating threats or sporadic employed for such purpose.
fights between the pickets and those who pass the line.231
Purposes of a picket line:
SLOWDOWN
- To persuade peacefully:
o Other workers not to work in the establishment. Definition:
o Customers not to do business there. - Slowdown is a method by which one’s employees, without seeking a
- While a strike focuses on stoppage of work, picketing focuses on complete stoppage of work, retard production and distribution in an
publicizing the labor dispute and its incidents to inform the public of effort to compel compliance by the employer with the labor
what is happening in the company struck against.232 demands made upon him.
- It is a "strike on the installment plan;" as a wilfull reduction in the
PICKETING AND LIBEL LAWS rate of work by concerted action of workers for the purpose of
- Viewed realistically, a union cannot be expected to use courteous restricting the output of the employer, in relation to a labor
and polite language while picketing, albeit in a peaceful manner. This dispute; as an activity by which workers, without a complete
is a fact of industrial life, both in the Philippines and in the US, which stoppage of work, retard production or their performance of duties
should be met with acceptance and not condemnation. In and functions to compel management to grant their demands.237
legitimately asserting its rights by picketing, the union, motivated by Concept:
strong emotions which are but natural in labor disputes, is expected - It is generally condemned as inherently illicit and unjustifiable,
to use strong language, which can best attain its purpose of getting because while the employees continue to work and remain at their
its points and demands across to management.233 positions and accept the wages paid to them, they at the same time
select what part of their allotted tasks they care to perform of their
CURTAILMENT own volition or refuse openly or secretly, to the employer's damage,
- The right to picket as a means of communicating the facts of a labor to do other work; in other words, they "work on their own terms.”238
dispute is a phase of the freedom of speech guaranteed by the
Constitution. If peacefully carried out, it cannot be curtailed even in C. Assumption of
the absence of ER-EE relationship.234
- The wholesale condemnation of peaceful picketing is clearly bereft Jurisdiction/Compulsory Arbitration
of support in law. Peaceful picketing is embraced in freedom of DEFINITION; NATURE OF DISPUTE FOR COMPULSORY
expression as declared by law and jurisprudence.235 ARBITRATION
Article 277 (g)
Strikes, picketing and lockouts. 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
231 INSULAR V INSULAR
232 PHIMCO INDUSTRIES, INC. V. PHIMCO INDUSTRIES LABOR ASSOC.
233 PCIB V. PHILNABANK EMPLOYEES ASSOCIATION (1981)
236 LIWAYWAY PUBLISHING CO., INC. V. PCWU (1981)
234 PAFLU V CLORIBEL
237 IBM V NLRC
235 NAGKAISANG MANGGAGAWA SA CUIZON HOTEL V. LIBRON (1983)
238
Id.
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 65 79
C. Assumption of Jurisdiction/Compulsory Arbitration || Rationale || PROHIBITED ACTIVITIES; PEACEFUL PICKETING
« Notes: »

may assume jurisdiction over the dispute and decide it or certify the same to PROCESS INITIATION/INITIATING PARTY
the Commission for compulsory arbitration. Such assumption or certification 1. SOLE
shall have the effect of automatically enjoining the intended or impending 2. President
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 ARBITRATION AGENCIES
locked out employees shall immediately return-to-work and the employer
shall immediately resume operations and readmit all workers under the same SOLE’s powers:
terms and conditions prevailing before the strike or lockout. The Secretary of - The authority to assume jurisdiction over labor disputes must
Labor and Employment or the Commission may seek the assistance of law include and extend to all questions and controversies arising
enforcement agencies to ensure compliance with this provision as well as with therefrom, including cases over which the Labor Arbiter has
such orders as he may issue to enforce the same.
exclusive jurisdiction.241
In line with the national concern for and the highest respect accorded to the - The authority of the Secretary to assume jurisdiction over a labor
right of patients to life and health, strikes and lockouts in hospitals, clinics and
dispute includes and extends to all questions and controversies
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
arising from such labor dispute. The power is plenary and
exhausted to substantially minimize, if not prevent, their adverse effects on discretionary in nature to enable him to effectively and efficiently
such life and health, through the exercise, however legitimate, by labor of its dispose of the dispute.242
right to strike and by management to lockout. In labor disputes adversely
affecting the continued operation of such hospitals, clinics or medical EFFECT OF ASSUMPTION/CERTIFICATION ORDER
institutions, it shall be the duty of the striking union or locking-out employer
Return-to-Work Order
to provide and maintain an effective skeletal workforce of medical and other
- It automatically enjoins an impending strike/lockout.
health personnel, whose movement and services shall be unhampered and
unrestricted, as are necessary to insure the proper and adequate protection of - It also orders all striking workers to return to work, the employer to
the life and health of its patients, most especially emergency cases, for the resume operations and to readmit all employees under the same
duration of the strike or lockout. In such cases, therefore, the Secretary of terms and conditions prevailing before the strike/lockout.
Labor and Employment may immediately assume, within twenty four (24) - If SOLE excluded retrenched workers, where retrenchment is the
hours from knowledge of the occurrence of such a strike or lockout, jurisdiction source of the labor dispute, there is grave abuse of discretion.
over the same or certify it to the Commission for compulsory arbitration. For - The employer is not required to reinstate employees when there is a
this purpose, the contending parties are strictly enjoined to comply with such
supervening event/valid cause to justify the severance of the ER-EE
orders, prohibitions and/or injunctions as are issued by the Secretary of Labor
and Employment or the Commission, under pain of immediate disciplinary relationship.
action, including dismissal or loss of employment status or payment by the - Since a return-to-work order confers a right to the employees, they
locking-out employer of backwages, damages and other affirmative relief, can also validly waive such right.243
even criminal prosecution against either or both of them.
Notes:
The foregoing notwithstanding, the President of the Philippines shall not be
- A RTW order is immediately executory notwithstanding the filing of
precluded from determining the industries that, in his opinion, are
indispensable to the national interest, and from intervening at any time and a MR. It must be strictly complied with even during the pendency
assuming jurisdiction over any such labor dispute in order to settle or of any petition questioning its validity. To say that the RTW must
terminate the same. wait affirmance on a MR is not only to emasculate it but indeed to
defeat its import, for by then the deadline fixed for the RTW would,
Notes: in the ordinary course, have already passed and hence can no longer
- Power exercised by the SOLE or the President be affirmed insofar as the time element is concerned.244
o There is unlimited discretion to determine what industries may be o This extraordinary authority given by law to the SOLE is "aimed at
considered as indispensable to the national interest. arriving at a peaceful and speedy solution to labor disputes,
- Such power is in the nature of a police power measure, intended to without jeopardizing national interests.”245
enjoin or prevent strikes and lockouts in indispensable industries - The RTW order does not interfere with the management’s
- The labor dispute must cause or likely to cause a strike/lockout prerogative, but merely regulates it when, in the exercise of such
Industries indispensable to the national interest right, national interests will be affected.246
- Hospital Sector AWARDS AND ORDERS
- Electric Power Industry
Article 277 (i)
- Water Supply Services, to exclude small water supply services such
Strikes, picketing and lockout. The Secretary of Labor and Employment, the
as bottling and refilling stations
Commission or the voluntary arbitrator shall decide or resolve the dispute, as
- Air Traffic Control; and the case may be. The decision of the President, the Secretary of Labor and
- Such other industries as maybe recommended by the National Employment, the Commission or the voluntary arbitrator shall be final and
Tripartite Industrial Peace Council (TIPC) executory ten (10) calendar days after receipt thereof by the parties.
- A publishing firm chiefly dependent on the marketing and sale of Article 291 (i)
advertising space is not indispensable to the national interest. Its Miscellaneous Provisions. To ensure speedy labor justice, the periods provided
services, while of value, cannot be deemed to be in the same in this Code within which decisions or resolutions of labor relations cases or
category of such essential activities as "the generation or matters should be rendered shall be mandatory. For this purpose, a case or
distribution of energy" or those undertaken by "banks, hospitals, matter shall be deemed submitted for decision or resolution upon the filing of
and export-oriented industries." It also cannot be regarded as the last pleading or memorandum required by the rules of the Commission or
playing as vital a role in communication as other mass media.239 by the Commission itself, or the Labor Arbiter, or the Director of the Bureau of
Labor Relations or Med-Arbiter, or the Regional Director.
RATIONALE Upon expiration of the corresponding period, a certification stating why a
- The main reason/rationale for the exercise of the assumption of decision or resolution has not been rendered within the said period shall be
jurisdiction is the maintenance and upholding of the status quo issued forthwith by the Chairman of the Commission, the Executive Labor
while the dispute is being adjudicated. The directive to the parties to Arbiter, or the Director of the Bureau of Labor Relations or Med-Arbiter, or the
refrain from performing acts that will exacerbate the situation is
intended to ensure that the dispute does not get out of hand, 241 UNION OF FILIPRO EMPLOYEES VS. NESTLÉ
thereby negating the direct intervention of this office.240
242 PHILCOM EES UNION V. PHILIPPINE GLOBAL COMMUNICATIONS (2006)
243 PHILTREAD TIRE V NLRC (1933)
244 MANILA HOTEL EMPLOYEES ASSOC. V MANILA HOTEL CORP. (2007)
239 GTE DIRECTORIES V. GTE DIRECTORIES CORP. EMPLOYEES UNION (1991) 245 UNION OF FILIPRO EMPLOYEES V NESTLÉ
240 UNIVERSITY OF IMMACULATE CONCEPCION V SOLE 246 YSS EMPLOYEES UNION—PTGWO V YSS LABORATORIES (2009)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 66 79
D. Role of Peace Officers during Strikes and Picketing || option – voluntary arbitration after certification || PROHIBITED ACTIVITIES; PEACEFUL PICKETING
« Retroactivity of Arbitral Awards: »

Regional Director, as the case may be, and a copy thereof served upon the D. Role of Peace Officers during Strikes
parties.
Despite the expiration of the applicable mandatory period, the aforesaid
and Picketing
officials shall, without prejudice to any liability which may have been incurred
ESCORTING
as a consequence thereof, see to it that the case or matter shall be decided or
resolved without any further delay. Article 278 (d)
Prohibited Activities. No public official or employee, including officers and
Retroactivity of Arbitral Awards: personnel of the New Armed Forces of the Philippines or the Integrated
- In the absence of an agreement between the parties, then, an National Police, or armed person, shall bring in, introduce or escort in any
arbitrated CBA takes on the nature of any judicial or quasi-judicial manner, any individual who seeks to replace strikers in entering or leaving the
award; it operates and may be executed only respectively unless 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
there are legal justifications for its retroactive application.247
therein: Provided, That nothing herein shall be interpreted to prevent any
- In the absence of the specific provision of law prohibiting public officer from taking any measure necessary to maintain peace and order,
retroactivity of the effectivity of the arbitral awards issued by the protect life and property, and/or enforce the law and legal order.
SOLE pursuant to the power to assume jurisdiction, he/she is
deemed vested with plenary powers to determine the effectivity Notes:
thereof.248 - Peace officers shall observe strict neutrality in dealings with both
parties to the controversy
OPTION – VOLUNTARY ARBITRATION AFTER - They shall not be stationed in the picket but should be stationed
CERTIFICATION such that their presence may deter the commission of criminal acts
Article 277 (h) from either side, keeping in mind the 50-m radius from the
Strikes, picketing and lockouts. Before or at any stage of the compulsory picket/strike area.
arbitration process, the parties may opt to submit their dispute to voluntary
arbitration.
ARREST AND DETENTION OF LAW VIOLATORS
Article 280
COMPULSORY ARBITRATION AND LABOR RIGHTS Requirement for arrest and detention. Except on grounds of national security
- Compulsory Arbitration is the process of settlement of labor diputes and public peace or in case of commission of a crime, no union members or
by a government agency, which has the power to investigate and union organizers may be arrested or detained for union activities without
make an award binding upon the parties. previous consultations with the Secretary of Labor.
- The assumption of jurisdiction is in the nature of police power
measure. This is done for the promotion of the common good
considering that a prolonged strike or lockout can be inimical to the
national economy. The SOLE acts to maintain industrial peace. Thus,
his/her certification for compulsory arbitration is not intended to
impede the workers' right to strike but to obtain a speedy
settlement of the dispute.249

247 MERALCO V QUISUMBING (1999)


248 LMG CHEMICALS CORP. V. SOLE (2001)
249 PHILREAD WORKERS UNION V. CONFESSOR (1997)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 67 79
A. Basis, Defintion, Limitation || arrest and detention of law violators || PROHIBITED ACTIVITIES; PEACEFUL PICKETING
« Notes: »

Employer Lockout
Article 277 (g)
Strikes, picketing and lockouts. 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
A. Basis, Defintion, Limitation may assume jurisdiction over the dispute and decide it or certify the same to
Article 277 (b) the Commission for compulsory arbitration. Such assumption or certification
Strikes, picketing and lockouts. Workers shall have the right to engage in shall have the effect of automatically enjoining the intended or impending
concerted activities for purposes of collective bargaining or for their mutual strike or lockout as specified in the assumption or certification order. If one has
benefit and protection. The right of legitimate labor organizations to strike and already taken place at the time of assumption or certification, all striking or
picket and of employers to lockout, consistent with the national interest, shall locked out employees shall immediately return-to-work and the employer
continue to be recognized and respected. However, no labor union may strike shall immediately resume operations and readmit all workers under the same
and no employer may declare a lockout on grounds involving inter-union and terms and conditions prevailing before the strike or lockout. The Secretary of
intra-union disputes. Labor and Employment or the Commission may seek the assistance of law
enforcement agencies to ensure compliance with this provision as well as with
Article 219 (p) such orders as he may issue to enforce the same.
"Lockout" means any temporary refusal of an employer to furnish work as a
Article 278 (a)
result of an industrial or labor dispute.
Prohibited activities. No labor organization or employer shall declare a strike
Book V, Rule 1, Section 1 (gg) or lockout without first having bargained collectively in accordance with Title
"Lockout" refers to the temporary refusal of an employer to furnish work as a VII of this Book or without first having filed the notice required in the preceding
result of a labor or industrial dispute. Article or without the necessary strike or lockout vote first having been
obtained and reported to the Ministry.
Notes: No strike or lockout shall be declared after assumption of jurisdiction by the
- Lockout is an employer’s act of temporarily excluding the President or the Minister or after certification or submission of the dispute to
employees who are union members from the plant/factory because compulsory or voluntary arbitration or during the pendency of cases involving
of an industrial or labor dispute. the same grounds for the strike or lockout.
o It is an act directed at the union itself rather than at the
individual employee-members of the union.
o It may be used as a legitimate economic weapon.
F. Procedural Requirements
Article 278 (a)
Prohibited activities. No labor organization or employer shall declare a strike
B. Effect on Work Relationship 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
C. Lockouting Party obtained and reported to the Ministry.
Article 277 (b)
Strikes, picketing and lockouts. The right of legitimate labor organizations to Article 278 (d)
strike and picket and of employers to lockout, consistent with the national Prohibited Activities. No public official or employee, including officers and
interest, shall continue to be recognized and respected. However, no labor personnel of the New Armed Forces of the Philippines or the Integrated
union may strike and no employer may declare a lockout on grounds involving National Police, or armed person, shall bring in, introduce or escort in any
inter-union and intra-union disputes. 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
Article 277 (c) keep out of the picket lines unless actual violence or other criminal acts occur
Strikes, picketing and lockouts. In case of bargaining deadlocks, the duly therein: Provided, That nothing herein shall be interpreted to prevent any
certified or recognized bargaining agent may file a notice of strike or the public officer from taking any measure necessary to maintain peace and order,
employer may file a notice of lockout with the Ministry at least 30 day before protect life and property, and/or enforce the law and legal order.
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 Article 278 (e)
agent, the notice of strike may be filed by any legitimate labor organization in Prohibited Activities. No person engaged in picketing shall commit any act of
behalf of its members. violence, coercion or intimidation or obstruct the free ingress to or egress from
the employer’s premises for lawful purposes, or obstruct public thoroughfares.

D. Ground for Lockout Book V, Rule XXII, Section 5


Grounds for strike or lockout. A strike or lockout may be declared in cases of
Article 277 (c) bargaining deadlocks and unfair labor practices. Violations of collective
Strikes, picketing and lockouts. In case of bargaining deadlocks, the duly bargaining agreements, except flagrant and/or malicious refusal to comply
certified or recognized bargaining agent may file a notice of strike or the with its economic provisions, shall not be considered unfair labor practice and
employer may file a notice of lockout with the Ministry at least 30 day before shall not be strikeable. No strike or lockout may be declared on grounds
the intended date thereof. In cases of unfair labor practice, the period of notice involving inter-union and intra-union disputes without first having filed a
shall be 15 days and in the absence of a duly certified or recognized bargaining notice of strike or lockout or without the necessary strike or lockout vote
agent, the notice of strike may be filed by any legitimate labor organization in having been obtained and reported to the Board. Neither will a strike be
behalf of its members. declared after assumption of jurisdiction by the Secretary 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.
E. Prohibited Lockout
Article 277 (b) Section 6
Strikes, picketing and lockouts. Workers shall have the right to engage in Who may declare a strike or lockout. Any certified or duly recognized
concerted activities for purposes of collective bargaining or for their mutual bargaining representative may declare a strike in cases of bargaining deadlocks
benefit and protection. The right of legitimate labor organizations to strike and and unfair labor practices. The employer may declare a lockout in the same
picket and of employers to lockout, consistent with the national interest, shall cases. In the absence of a certified or duly recognized bargaining
continue to be recognized and respected. However, no labor union may strike representative, any legitimate labor organization in the establishment may
and no employer may declare a lockout on grounds involving inter-union and declare a strike but only on grounds of unfair labor practices.
intra-union disputes.
Section 7
Notice of strike or lockout. In bargaining deadlocks, a notice of strike or
lockout shall be filed with the regional branch of the Board at least thirty (30)

_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 68 79
G. Effect of Illegal Lockout || arrest and detention of law violators || PROHIBITED ACTIVITIES; PEACEFUL PICKETING
« Notes: »

days before the intended date thereof, a copy of said notice having been served PHILTREAD TIRE & RUBBER CORP. V. NLRC (1993)
on the other party concerned. In cases of unfair labor practice, the period of Union filed NoS for ULP. In response, Company filed NoL for ULP
notice shall be fifteen (15) days. However, in case of unfair labor practice and violation of CBA. Union picketed. Company filed libel
involving the charges against 36 of the Union officers for distributing leaflets
dismissal from employment of any union officer duly elected in accordance F:
imputing defects in company products. SOLE AJ then certified
with the union constitution and by-laws which may constitute union-busting to NLRC. RTW order issued but Company only partially
where the existence of the union is threatened, the fifteen-day cooling-off complied, refusing to readmit the 36 officers.
period shall not apply and the union may take action immediately after the
I: WON the company is liable for backwages.
strike vote is conducted and the results thereof submitted to the appropriate
YES, BUT ONLY FROM THE DATE OF THE RETURN-TO-WORK
regional branch of the Board.
ORDER UP TO THE DEFERMENT OF THE EXECUTION OF SOLE’S
Section 8 ORDERS. The SC ruled that Company complied with the
Contents of notice. The notice shall state, among others, the names and procedural requirements of a valid lockout, saying that it was
addresses of the employer and the union involved, the nature of the industry to R: clear that the lockout was resorted to maintain industrial
which the employer belongs, the number of union members and of the workers peace. In complying with these requirements, Company
in the bargaining unit, and such other relevant data as may facilitate the incurred no liability to those employees affected by it.
settlement of the dispute, such as a brief statement or enumeration of all However, Company should still be penalized because it failed to
pending labor disputes involving the same parties. comply with SOLE’s RTW order.
In cases of bargaining deadlocks, the notice shall, as far as practicable, further
state the unresolved issues in the bargaining negotiations and be accompanied
by the written proposals of the union, the counter-proposals of the employer G. Effect of Illegal Lockout
and the proof of a request for conference to settle the differences. In cases of Article 278 (a), par. 3, 1st sentence
unfair labor practices, the notice shall, as far as practicable, state the acts Any worker whose employment has been terminated as a consequence of any
complained of and the efforts taken to resolve the dispute amicably. unlawful lockout shall be entitled to reinstatement with full backwages.
In case a notice does not conform with the requirements of this and the
foregoing section/s, the regional branch of the Board shall inform the
concerned party of such fact.

Section 9
Action on Notice. Upon receipt of the notice, the regional branch of the Board
shall exert all efforts at mediation and conciliation to enable the parties to
settle the dispute amicably. The regional branch of the Board may, upon
agreement of the parties, treat a notice as a preventive mediation case. It shall
also encourage the parties to submit the dispute to voluntary arbitration.
During the proceedings, the parties shall not do any act which may disrupt or
impede the early settlement of the dispute. They are obliged, as part of their
duty to bargain collectively in good faith and to participate fully and promptly
in the conciliation meetings called by the regional branch of the Board.
A notice, upon agreement of the parties, may be referred to alternative modes
of dispute resolution, including voluntary arbitration.

Section 10
Strike or lockout vote. A decision to declare a strike must be approved by a
majority of the total union membership in the bargaining unit concerned
obtained by secret ballot in meetings or referenda called for the purpose. A
decision to declare a lockout must be approved by a majority of the Board of
Directors of the employer, corporation or association or the partners in a
partnership obtained by a secret ballot in a meeting called for the purpose.
The regional branch of the Board may, at its own initiative or upon request of
any affected party, supervise the conduct of the secret balloting. In every case,
the union or the employer shall furnish the regional branch of the Board and
the notice of meetings referred to in the preceding paragraph at least twenty-
four (24) hours before such meetings as well as the results of the voting at
least seven (7) days before the intended strike or lockout, subject to the
cooling-off period provided in this Rule.

Section 11
Declaration of strike or lockout. Should the dispute remain unsettled after
the lapse of the requisite number of days from the filing of the notice of strike
or lockout and of the results of the election required in the preceding section,
the labor union may strike or the employer may lock out its workers. The
regional branch of the Board shall continue mediating and conciliating.

_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 69 79
A. Definition and Nature || arrest and detention of law violators || PROHIBITED ACTIVITIES; PEACEFUL PICKETING
« Definition: »

Labor Injunction
- In light of the genesis of the right to strike, it ought to be obvious
that the right should be read with a libertarian latitude in favor of
labor. In the wise words of Fr. Bernas, "… the constitutional
recognition of the right to strike does serve as a reminder that
A. Definition and Nature injunctions, should be reduced to the barest minimum".251
Definition: Rationale for prohibition:
- An injunction is a preservative remedy for the protection of one's - Injunction is an employer’s most effective remedy in a labor dispute.
substantive rights or interest. Its issuance will tip the scales and can critically sway the balance of
Nature: the struggle against the union.
- It is not a cause of action in itself but merely a provisional remedy, - This prohibition is designed to give labor a comparable bargaining
an adjunct to a main suit. power against capital and must be liberally construed to that end.
- It is resorted to only when there is a pressing necessity to avoid There can be no injunction issued against any strike except in only
injurious consequences which cannot be remedied under any one instance: when a labor dispute arises in an industry
standard of compensation. indispensable to national interest. The injunction should not be
- The application of the injunctive writ rests upon the existence of an directed against the strike itself but on the unlawful activities.252
emergency or of a special reason before the main case be regularly Notes:
heard. - Injunctions in labor cases are different from the ancillary writ of
- As an extraordinary remedy, an injunction is not favored in labor law preliminary injunction found in the Rules of Court.
considering that it generally has not proved to be an effective o Here, it seeks a judgement embodying a final injunction.
means of settling labor disputes.
- It has been the policy of the State to encourage the parties to use
the non- judicial process of negotiation and compromise, mediation C. Exception: When Allowed
and arbitration. Thus, injunctions may be issued only in cases of Article 265
extreme necessity based on legal grounds clearly established, after Injunction prohibited. No temporary or permanent injunction or restraining
due consultations or hearing and when all efforts at conciliation are order in any case involving or growing out of labor disputes shall be issued by
exhausted which factors. any court or other entity, except as otherwise provided in Articles 225 and 278
of this Code.
Essential conditions for the issuance of the Injunction
1. The complaint alleges facts which appear to be sufficient to Article 225 (e)
constitute a proper basis for injunction; and Powers of the Commission. Provided, That no temporary or permanent
2. On the entire showing from the contending parties, the injunction is 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
reasonably necessary to protect the legal rights of the plaintiff
opportunity for cross-examination, in support of the allegations of a complaint
pending the litigation. made under oath, and testimony in opposition thereto, if offered, and only
after a finding of fact by the Commission, to the effect:
B. General Rule: Prohibition (1) That prohibited or unlawful acts have been threatened and will be
committed and will be continued unless restrained, but no injunction or
Article 265
temporary restraining order shall be issued on account of any threat,
Injunction prohibited. No temporary or permanent injunction or restraining prohibited or unlawful act, except against the person or persons,
order in any case involving or growing out of labor disputes shall be issued by association or organization making the threat or committing the prohibited
any court or other entity, except as otherwise provided in Articles 225 and 278 or unlawful act or actually authorizing or ratifying the same after actual
of this Code. knowledge thereof;
(2) That substantial and irreparable injury to complainant’s property will
Article 225 (e)
follow;
Powers of the Commission. To enjoin or restrain any actual or threatened (3) That as to each item of relief to be granted, greater injury will be inflicted
commission of any or all prohibited or unlawful acts or to require the upon complainant by the denial of relief than will be inflicted upon
performance of a particular act in any labor dispute which, if not restrained or defendants by the granting of relief;
performed forthwith, may cause grave or irreparable damage to any party or (4) That complainant has no adequate remedy at law; and
render ineffectual any decision in favor of such party: (5) That the public officers charged with the duty to protect complainant’s
property are unable or unwilling to furnish adequate protection.
Book V, Rule XXII, Section 14
Such hearing shall be held after due and personal notice thereof has been
Injunctions. No court or entity shall enjoin any picketing, strike or lockout, served, in such manner as the Commission shall direct, to all known persons
except as provided in Articles 225 and 278 of the Labor Code. against whom relief is sought, and also to the Chief Executive and other public
The Commission shall have the power to issue temporary restraining orders in officials of the province or city within which the unlawful acts have been
such cases but only after due notice and hearing and in accordance with its threatened or committed, charged with the duty to protect complainant’s
rules. The reception of evidence for the application of a writ of injunction may property: Provided, however, that if a complainant shall also allege that, unless
be delegated by the Commission to any Labor Arbiter who shall submit his a temporary restraining order shall be issued without notice, a substantial and
recommendations to the Commission for its consideration and resolution. irreparable injury to complainant’s property will be unavoidable, such a
Any ex parte restraining order issued by the Commission, or its chairman or temporary restraining order may be issued upon testimony under oath,
Vice-Chairman where the Commission is not in session and as prescribed by its sufficient, if sustained, to justify the Commission in issuing a temporary
rules, shall be valid for a period not exceeding twenty (20) days. injunction upon hearing after notice. Such a temporary restraining order shall
be effective for no longer than twenty (20) days and shall become void at the
Policy: expiration of said twenty (20) days. No such temporary restraining order or
- The anti-injunction policy of the Labor Code, basically, is freedom at temporary injunction shall be issued except on condition that complainant
the workplace. It is more appropriate in the promotion of the shall first file an undertaking with adequate security in an amount to be fixed
primacy of free collective bargaining and negotiations, including by the Commission sufficient to recompense those enjoined for any loss,
expense or damage caused by the improvident or erroneous issuance of such
voluntary arbitration, mediation and conciliation, as modes of
order or injunction, including all reasonable costs, together with a reasonable
settling labor and industrial disputes.250 attorney’s fee, and expense of defense against the order or against the
- Government intervention is an exception rather than the rule. granting of any injunctive relief sought in the same proceeding and

251 BISIG NG MANGGAGAWA SA CONCRETE AGGREGATES V NLRC (1993)


250 RAVAGO V. EASTERN MARINE, LTD. (2005) 252 CALTEX V CIR
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 70 79
D. Issuing Agency; Procedural Requirements || arrest and detention of law violators || PROHIBITED ACTIVITIES; PEACEFUL PICKETING
« General Rule and Exceptions: »

subsequently denied by the Commission. prohibited or unlawful act, except against the person or persons,
association or organization making the threat or committing the
Article 278 prohibited or unlawful act or actually authorizing or ratifying the same
Prohibited activities. after actual knowledge thereof;
(a) No labor organization or employer shall declare a strike or lockout without (2) That substantial and irreparable injury to complainant’s property will
first having bargained collectively in accordance with Title VII of this Book follow;
(3) That as to each item of relief to be granted, greater injury will be inflicted
or without first having filed the notice required in the preceding Article or
without the necessary strike or lockout vote first having been obtained upon complainant by the denial of relief than will be inflicted upon
and reported to the Ministry. defendants by the granting of relief;
No strike or lockout shall be declared after assumption of jurisdiction by (4) That complainant has no adequate remedy at law; and
(5) That the public officers charged with the duty to protect complainant’s
the President or the Minister or after certification or submission of the
dispute to compulsory or voluntary arbitration or during the pendency of property are unable or unwilling to furnish adequate protection.
cases involving the same grounds for the strike or lockout. Such hearing shall be held after due and personal notice thereof has been
Any worker whose employment has been terminated as a consequence of served, in such manner as the Commission shall direct, to all known persons
against whom relief is sought, and also to the Chief Executive and other public
any unlawful lockout shall be entitled to reinstatement with full
backwages. Any union officer who knowingly participates in an illegal officials of the province or city within which the unlawful acts have been
strike and any worker or union officer who knowingly participates in the threatened or committed, charged with the duty to protect complainant’s
commission of illegal acts during a strike may be declared to have lost his property: Provided, however, that if a complainant shall also allege that, unless
a temporary restraining order shall be issued without notice, a substantial and
employment status: Provided, That mere participation of a worker in a
lawful strike shall not constitute sufficient ground for termination of his irreparable injury to complainant’s property will be unavoidable, such a
employment, even if a replacement had been hired by the employer during temporary restraining order may be issued upon testimony under oath,
such lawful strike. sufficient, if sustained, to justify the Commission in issuing a temporary
injunction upon hearing after notice. Such a temporary restraining order shall
(b) No person shall obstruct, impede, or interfere with, by force, violence,
coercion, threats or intimidation, any peaceful picketing by employees be effective for no longer than twenty (20) days and shall become void at the
during any labor controversy or in the exercise of the right to self- expiration of said twenty (20) days. No such temporary restraining order or
organization or collective bargaining, or shall aid or abet such obstruction temporary injunction shall be issued except on condition that complainant
shall first file an undertaking with adequate security in an amount to be fixed
or interference.
(c) No employer shall use or employ any strike-breaker, nor shall any person by the Commission sufficient to recompense those enjoined for any loss,
be employed as a strike-breaker. expense or damage caused by the improvident or erroneous issuance of such
(d) No public official or employee, including officers and personnel of the New order or injunction, including all reasonable costs, together with a reasonable
attorney’s fee, and expense of defense against the order or against the
Armed Forces of the Philippines or the Integrated National Police, or
armed person, shall bring in, introduce or escort in any manner, any granting of any injunctive relief sought in the same proceeding and
individual who seeks to replace strikers in entering or leaving the premises subsequently denied by the Commission.
of a strike area, or work in place of the strikers. The police force shall keep The undertaking herein mentioned shall be understood to constitute an
out of the picket lines unless actual violence or other criminal acts occur agreement entered into by the complainant and the surety upon which an
therein: Provided, That nothing herein shall be interpreted to prevent any order may be rendered in the same suit or proceeding against said complainant
public officer from taking any measure necessary to maintain peace and and surety, upon a hearing to assess damages, of which hearing, complainant
order, protect life and property, and/or enforce the law and legal order. and surety shall have reasonable notice, the said complainant and surety
(e) No person engaged in picketing shall commit any act of violence, coercion submitting themselves to the jurisdiction of the Commission for that purpose.
or intimidation or obstruct the free ingress to or egress from the But nothing herein contained shall deprive any party having a claim or cause of
employer’s premises for lawful purposes, or obstruct public action under or upon such undertaking from electing to pursue his ordinary
thoroughfares. remedy by suit at law or in equity: Provided, further, That the reception of
evidence for the application of a writ of injunction may be delegated by the
General Rule and Exceptions: Commission to any of its Labor Arbiters who shall conduct such hearings in
G.R.: Labor disputes are not subject to injunction such places as he may determine to be accessible to the parties and their
witnesses and shall submit thereafter his recommendation to the Commission.
E: Art. 225 (e)
§ When the actions sought to be restrained may cause grave or Notes:
irreparable damage to any party or render ineffectual any - Such power can only be exercised in a labor dispute, which the
decision in favor of such party Labor Code also defines as any controversy or matters concerning
Art. 278 terms or conditions of employment or the association or
§ When any of the prohibited acts are being carried out representation of persons in negotiating, fixing, maintaining,
changing or arranging the terms and conditions of employment,
Note: regardless of whether the disputants stand in the proximate relation
- When SOLE assumes jurisdiction, it acts as an injunction to the of employer and employee.253
strike/lockout.
Jurisprudential example:
- Simply because a writ of execution was issued by the NLRC does not
D. Issuing Agency; Procedural authorize the sheriff implementing the same to levy on anybody's
Requirements property. To deny the victim of the wrongful levy, the recourse such
Article 225 (e) as that availed of by the herein private respondents, under the
Powers of the Commission. To enjoin or restrain any actual or threatened pretext that no court of general jurisdiction can interfere with the
commission of any or all prohibited or unlawful acts or to require the writ of execution issued in a labor dispute, will be sanctioning a
performance of a particular act in any labor dispute which, if not restrained or greater evil than that sought to be avoided by the Labor Code
performed forthwith, may cause grave or irreparable damage to any party or provision in question. Certainly, that could not have been the
render ineffectual any decision in favor of such party: Provided, That no intendment of the law creating the NLRC. For well-settled is the
temporary or permanent injunction in any case involving or growing out of a
rule that the power of a court to execute its judgment extends only
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
over properties unquestionably belonging to the judgment debtor.254
the allegations of a complaint made under oath, and testimony in opposition
thereto, if offered, and only after a finding of fact by the Commission, to the
effect:
(1) That prohibited or unlawful acts have been threatened and will be
committed and will be continued unless restrained, but no injunction or
temporary restraining order shall be issued on account of any threat, 253 NESTLE PHILS, INC. V. NLRC (1991)
254 NATIONAL MINES & ALLIED WORKERS UNION V. VERA (1984)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 71 79
D. Issuing Agency; Procedural Requirements || national labor relations commission; labor arbiter || PROHIBITED ACTIVITIES; PEACEFUL PICKETING
« Notes: »

NATIONAL LABOR RELATIONS COMMISSION; LABOR


TEMPORARY RESTRAINING ORDER
ARBITER
Requirements for the issuance of a TRO:
Notes:
6. Allegation that unless a TRO is issued without notice, substantial
- The reception of evidence "for the application of a writ of injunction
and irreparable injury to complainant’s property will be unavoidable
may be delegated by the Commission to any of its Labor Arbiters
7. There is testimony under oath sufficient, if sustained, to justify the
who shall conduct such hearings in such places as he may determine
issuance of a TRO upon hearing after notice
to be accessible to the parties and their witnesses and shall submit
8. Filing of an undertaking with a bond sufficient to recompense those
thereafter his recommendation to the Commission."255
enjoined for any loss, expense or damage caused by the erroneous
PROCEDURAL REQUIREMENTS AND RULES FOR THE issuance of the order
ISSUANCE OF LABOR INJUNCTIONS 9. Effective for a period not longer than 20 days

Requisites for the issuance of an injunction: Cash Bond requirement


3. A hearing after due and personal notice to all parties; - No TRO or WPI shall be issued without the filing of a cash bond
4. Reception of testimonies in support of the allegations of a - It shall include the following costs:
complaint under oath as well as in opposition thereto; a. Loss, expense or damage caused by the improvident/erroneous
5. Finding of fact by the NLRC that: issuance of such order
a. That acts have been threatened and will be continued unless b. All other reasonable costs
restrained c. Reasonable attorney’s fee
b. That substantial and irreparable injury to complainant’s property d. Expense of defense against the order
will follow - Purpose: Compensation for those enjoined should the granting of
c. That greater injury will be sustained by complainants than that of the TRO later be proven erroneous.
respondents if the relief is granted, Notes:
d. That complainant has no adequate remedy under law - TROs are only valid for 20 days, inclusive of weekends and holidays
e. That public officers are unable or unwilling to furnish adequate - Thus, though the MA’s authority to issue a writ of preliminary
protection to complainant’s property injunction or TRO is admitted, it must be subject to the test of
Notes: reasonableness. 257
- It is an essential requirement that there must first be a labor
dispute between the contending parties before the labor arbiter
before an injunction may be issued.256
o "Labor dispute" = 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 or not the disputants stand in the
proximate relation of employers and employees.
o "Controversy" = a litigated question; adversary proceeding in a
court of law; a civil action or suit, either at law or in equity; a
justiciable dispute.
o "Justiciable controversy" = one involving an active antagonistic
assertion of a legal right on one side and a denial thereof on the
other concerning a real, and not a mere theoretical question or
issue.
- “Parties” = Includes:
o Those against whom the relief is sought
o The Chief Executive and other public officials of the province/city
within which the unlawful acts have been threatened/committed,
charged with the duty to protect complainant’s property
- “Irreparable injury” = one if such constant and frequent recurrence
that no fair and reasonable redress can be had; not susceptible of
mathematical computation; cannot be adequately compensated by
damages
- “Property” = includes both the tangible property and the right to use
the same (e.g. there is injury if workers block the entrances to an
applicant’s plant)

255 IBM V NLRC


256 PAL V NLRC 257 DINIO V. LAGUESMA (1997)
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 72 79
A. Right to Organize || Basis || PROHIBITED ACTIVITIES; PEACEFUL PICKETING
« Notes: »

Labor Relations in
Workers' Representatives Convention and Recommendation, 1971, apply to
workers' representatives in the undertaking, and
Noting the considerable expansion of public-service activities in many

the Public Sector


countries and the need for sound labour relations between public authorities
and public employees' organisations, and
Having regard to the great diversity of political, social and economic systems
among member States and the differences in practice among them (e.g. as to
A. Right to Organize the respective functions of central and local government, of federal, state and
provincial authorities, and of state-owned undertakings and various types of
BASIS autonomous or semi-autonomous public bodies, as well as to the nature of
Article III, Section 8 (1987 Constitution) employment relationships), and
The right of the people, including those employed in the public and private Taking into account the particular problems arising as to the scope of, and
sectors, to form unions, associations, or societies for purposes not contrary to definitions for the purpose of, any international instrument, owing to the
law shall not be abridged. differences in many countries between private and public employment, as well
as the difficulties of interpretation which have arisen in respect of the
Article XIII, Section 3 (1987 Constitution) application of relevant provisions of the Right to Organise and Collective
The State shall afford full protection to labor, local and overseas, organized Bargaining Convention, 1949, to public servants, and the observations of the
and unorganized, and promote full employment and equality of employment supervisory bodies of the ILO on a number of occasions that some governments
opportunities for all. have applied these provisions in a manner which excludes large groups of
It shall guarantee the rights of all workers to self-organization, collective public employees from coverage by that Convention, and
bargaining and negotiations, and peaceful concerted activities, including the Having decided upon the adoption of certain proposals with regard to freedom
right to strike in accordance with law. They shall be entitled to security of of association and procedures for determining conditions of employment in the
tenure, humane conditions of work, and a living wage. They shall also public service, which is the fifth item on the agenda of the session, and
participate in policy and decision-making processes affecting their rights and Having determined that these proposals shall take the form of an international
benefits as may be provided by law. Convention,
The State shall promote the principle of shared responsibility between workers adopts this twenty-seventh day of June of the year one thousand nine hundred
and employers and the preferential use of voluntary modes in settling and seventy-eight the following Convention, which may be cited as the Labour
disputes, including conciliation, and shall enforce their mutual compliance Relations (Public Service) Convention, 1978:
therewith to foster industrial peace.
The State shall regulate the relations between workers and employers, Part I – Scope and Definitions
recognizing the right of labor to its just share in the fruits of production and Article 1
the right of enterprises to reasonable returns to investments, and to expansion 1. This Convention applies to all persons employed by public authorities, to the
and growth. extent that more favourable provisions in other international labour
Conventions are not applicable to them.
Article IX-B, Section 2 (5) (1987 Constitution) 2. The extent to which the guarantees provided for in this Convention shall
The right to self-organization shall not be denied to government employees. apply to high-level employees whose functions are normally considered as
policy-making or managerial, or to employees whose duties are of a highly
EO 180, Section 1 confidential nature, shall be determined by national laws or regulations.
Coverage. This Executive Order applies to all employees of all branches, 3. The extent to which the guarantees provided for in this Convention shall
subdivisions, instrumentalities, and agencies, of the Government, including apply to the armed forces and the police shall be determined by national
government-owned or controlled corporations with original charters. For this laws or regulations.
purpose, employees, covered by this Executive Order shall be referred to as
"government employees". Article 2
For the purpose of this Convention, the term public employee means any
Section 2 person covered by the Convention in accordance with Article 1 thereof.
Coverage. All government employees can form, join or assist employees'
organizations of their own choosing for the furtherance and protection of their Article 3
interests. They can also form, in conjunction with appropriate government For the purpose of this Convention, the term public employees' organisation
authorities, labor-management committees, works councils and other forms means any organisation, however composed, the purpose of which is to further
of workers' participation schemes to achieve the same objectives. and defend the interests of public employees.

IRR of EO 180, Section 1 Part II – Protection of Right to Organize


Coverage. This Executive Order applies to all employees of all branches, Article 4
subdivisions, instrumentalities, and agencies of the Government, including 1. Public employees shall enjoy adequate protection against acts of anti-union
government-owned or controlled corporations with original charters. For this discrimination in respect of their employment.
purpose, employees covered by this Executive Order shall be referred to as 2. Such protection shall apply more particularly in respect of acts calculated
“government employees”. to:
(a) make the employment of public employees subject to the condition
Section 2 that they shall not join or shall relinquish membership of a public
Coverage. All government employees can form, join or assist employees’ employees' organisation;
organizations of their own choosing for the furtherance and protection of their (b) cause the dismissal of or otherwise prejudice a public employee by
interests. They can also form, in conjunction with appropriate government reason of membership of a public employees' organisation or because
authorities, labor-management committees, work councils and other forms of of participation in the normal activities of such an organisation.
workers’ participation schemes to achieve the same objectives.
Article 5
ILO Convention No. 151 1. Public employees' organisations shall enjoy complete independence from
Preamble public authorities.
The General Conference of the International Labour Organisation, 2. Public employees' organisations shall enjoy adequate protection against any
Having been convened at Geneva by the Governing Body of the International acts of interference by a public authority in their establishment, functioning
Labour Office, and having met in its Sixty-fourth Session on 7 June 1978, and or administration.
Noting the terms of the Freedom of Association and Protection of the Right to 3. In particular, acts which are designed to promote the establishment of
Organise Convention, 1948, the Right to Organise and Collective Bargaining public employees' organisations under the domination of a public authority,
Convention, 1949, and the Workers' Representatives Convention and or to support public employees' organisations by financial or other means,
Recommendation, 1971, and with the object of placing such organisations under the control of a public
authority, shall be deemed to constitute acts of interference within the
Recalling that the Right to Organise and Collective Bargaining Convention,
meaning of this Article.
1949, does not cover certain categories of public employees and that the
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 73 79
B. Activities || Basis || PROHIBITED ACTIVITIES; PEACEFUL PICKETING
« Notes: »

Part III – Facilities to be Afforded to Public Employees’ Organizations and Protection of the Right to Organize to take legislative measures which
Article 6 would prejudice, or to apply the law in such a manner as to prejudice, the
1. Such facilities shall be afforded to the representatives of recognised public guarantees provided for in that Convention.
employees' organisations as may be appropriate in order to enable them to
carry out their functions promptly and efficiently, both during and outside
their hours of work. B. Activities
2. The granting of such facilities shall not impair the efficient operation of the Rule III, Section 1 (IRR of EO 180)
administration or service concerned. Rights and conditions of membership in an employees’ organization. The
3. The nature and scope of these facilities shall be determined in accordance following are the rights and conditions of membership in an employees’
with the methods referred to in Article 7 of this Convention, or by other organization:
appropriate means.
(a) No arbitrary or excessive fees shall be charged from the members of an
Part IV – Procedures for Determining Terms and Conditions of Employment employees’ organization. Arbitrary, excessive or oppressive fines shall
Article 7 likewise not be imposed.
(b) The members shall be entitled to full and detailed reports of all financial
Measures appropriate to national conditions shall be taken, where necessary,
transactions from their officers and representatives as provided for in the
to encourage and promote the full development and utilisation of machinery
constitution and by-laws of the employees’ organization.
for negotiation of terms and conditions of employment between the public
(c) The members shall directly elect their officers by secret ballot at intervals
authorities concerned and public employees' organisations, or of such other
pursuant to the constitution and by-laws of the employees’ organization.
methods as will allow representatives of public employees to participate in the
(d) Policy decisions shall be made pursuant to the provisions of the
determination of these matters.
constitution and by-laws of the employees’ organization.
Part V – Settlement of Disputes (e) No person who has been convicted of a crime involving moral turpitude
Article 8 shall be eligible for election or appointment as an officer of an employees’
organization.
The settlement of disputes arising in connection with the determination of
(f) No fees, dues, or other contributions shall be collected or disbursed by an
terms and conditions of employment shall be sought, as may be appropriate to
officer, agent or member of an employees’ organization unless authorized
national conditions, through negotiation between the parties or through
by its constitution and by-laws.
independent and impartial machinery, such as mediation, conciliation and
(g) Every payment of fees, dues or other contributions by a member shall be
arbitration, established in such a manner as to ensure the confidence of the
evidenced by a receipt signed by the officer or agent making the collection
parties involved.
and shall be entered into the record of the organization kept and
Part VI – Civil and Political Rights maintained for the purpose.
Article 9 (h) The funds of the employees’ organization shall not be applied for any
purpose or object other than those expressly provided by its constitution
Public employees shall have, as other workers, the civil and political rights
which are essential for the normal exercise of freedom of association, subject and by-laws or those expressly authorized by written resolution adopted
only to the obligations arising from their status and the nature of their by the majority of the members at a general meeting called for the
functions. purpose.
(i) Every income or revenue of the employees’ organization shall be evidenced
Article 8 (ICESCR) by a record showing its source, and every expenditure of its funds shall be
1. The States Parties to the present Covenant undertake to ensure: supported by a receipt from the person to whom the payment is made. The
(a) The right of everyone to form trade unions and join the trade union of receipt shall state the date, place and purpose of such payment and shall
his choice, subject only to the rules of the organization concerned, for form part of the financial records of the employees’ organization. Any
the promotion and protection of his economic and social interests. No complaint involving the funds of an employees’ organization, which failed
restrictions may be placed on the exercise of this right other than those to submit the required audited annual financial report, can be filed
prescribed by law and which are necessary in a democratic society in the anytime. For those which have submitted the report, the complaint must
interests of national security or public order or for the protection of the be filed within three (3) years from the date of submission.
rights and freedoms of others; (j) The treasurer of an employees’ organization and every officer thereof who
(b) The right of trade unions to establish national federations or is responsible for the account of such employees’ organization or for the
confederations and the right of the latter to form or join international collection, management, disbursement, custody or control of the funds
trade-union organizations; and other properties of the organization shall render to the employees’
(c) The right of trade unions to function freely subject to no limitations organization and to its members a true and correct account of all money
other than those prescribed by law and which are necessary in a received and disbursed from the assumption of office or the last day of the
democratic society in the interests of national security or public order rendition of such an account. The treasurer shall also render an accounting
or for the protection of the rights and freedoms of others; of all entrusted bonds, securities and other properties of the organization.
(d) The right to strike, provided that it is exercised in conformity with the The rendition of such an account shall be made:
laws of the particular country. 1) within thirty (30) calendar days after the end of the calendar year;
2. This article shall not prevent the imposition of lawful restrictions on the 2) at such other times as may be required by a resolution of the majority of
exercise of these rights by members of the armed forces or of the police or the members of the employees’ organization; and,
of the administration of the State. 3) upon vacating the office.
3. Nothing in this article shall authorize States Parties to the International The account shall be audited by the auditor of the employees’ organization,
Labour Organisation Convention of 1948 concerning Freedom of Association who shall certify under oath as to the veracity thereof, copies of which
and Protection of the Right to Organize to take legislative measures which shall be furnished the DOLE-BLR and the CSC-PRO.
would prejudice, or apply the law in such a manner as would prejudice, the (k) The books of accounts and other records of the financial transactions of an
guarantees provided for in that Convention. employees’ organization shall be open to inspection by any officer or
member thereof during office hours.
Article 22 (ICCPR) (l) No special assessment or other extraordinary fees may be levied upon the
1. Everyone shall have the right to freedom of association with others, members of an employees’ organization unless authorized by a written
including the right to form and join trade unions for the protection of his resolution of a majority of all the members in a general membership
interests. meeting called for the purpose. The secretary of the employees’
2. No restrictions may be placed on the exercise of this right other than those organization shall record the minutes of the meeting including the list of
which are prescribed by law and which are necessary in a democratic society all members present, the votes cast, the purpose of the special assessment
in the interests of national security or public safety, public order (ordre or fees and the recipient of such assessment or fees. The record shall be
public), the protection of public health or morals or the protection of the attested by the president of the employees’ organization.
rights and freedoms of others. This article shall not prevent the imposition (m) No special assessments, attorney’s fees, negotiation fees or any other
of lawful restrictions on members of the armed forces and of the police in similar fees may be checked off from any amount due to an employee
their exercise of this right. without an individual written authorization duly signed by the employee.
3. Nothing in this article shall authorize States Parties to the International The authorization should specifically state the amount, purpose and
Labour Organisation Convention of 1948 concerning Freedom of Association beneficiary of the deduction.

_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 74 79
C. Officers and Employees with Right to Self-Organization || Non-Discrimination || PROHIBITED ACTIVITIES; PEACEFUL PICKETING
« Notes: »

(n) It shall be the duty of an employees’ organization and its officers to inform Rule I, Section 1 (i) (IRR of EO 180)
its members on the provisions of its constitution and by-laws, CNA, and all “Collective Negotiation Agreement” or “CNA” refers to the negotiated contract
their rights and obligations under existing laws, rules and regulations. For between an accredited employees’ organization representing a negotiating unit
this purpose, registered employees’ organizations shall collect reasonable and the employer/management concerning terms and conditions of
dues to finance seminars on public sector unionism and other relevant employment and improvements thereof that are not fixed by law.
activities. At least thirty percent (30%) of the members of a registered
employees’ organization, or any member directly or adversely affected
may report to the Council any violation of the above rights and conditions
of membership for the imposition of the proper penalty against the
CANCELLATION
officer/s concerned, including expulsion from the said organization. Rule VII, Section 1 (IRR of EO 180)
Procedure. The DOLE-BLR shall make a report of the employees’ organization’s
non-compliance and submit the same to the CSC Chairperson and DOLE
C. Officers and Employees with Right to Secretary for approval of the commencement of administrative cancellation
Self-Organization proceedings. Upon approval, the DOLE-BLR shall send to the employees’
organization concerned, by registered mail with return card, a Notice of
D. Officers and Employees with No Right Compliance directing the submission of specified documents within fifteen (15)
to Self-Organization calendar days from receipt of such notice.
If the employees’ organization fails to submit the required documents within
E. Protection of Rights the specified period or the documents submitted are found to be deficient, the
DOLEBLR shall issue a second Notice of Compliance, with a warning that failure
NON-DISCRIMINATION on its part to comply with the reportorial requirements within fifteen (15)
Section 5 (EO 180) calendar days from receipt thereof, shall cause the continuation of the
Protection of the Right to Organize. Government employees shall not be proceedings for cancellation of its registration.
discriminated against in respect of their employment by reason of their
membership in employees' organizations or participation in the normal Section 2
activities of their organization. Their employment shall not be subject to the Publication of notice of cancellation of registration. The DOLE-BLR shall
condition that they shall not join or shall relinquish their membership in the publish the Notice of Cancellation of Registration of the employees’
employees' organizations. organization in two (2) newspapers of general circulation after fifteen (15)
calendar days from the receipt of the Second Notice when there is no response
or in case a response is received, the same is still found to be deficient.
NON-INTERFERENCE ON UNION ADMINISTRATION Section 3
Section 6 (EO 180) Cancellation of registration. The DOLE-BLR shall recommend to the DOLE
Protection of the Right to Organize. Government authorities shall not Secretary and CSC Chairperson the cancellation of registration of the
interfere in the establishment, functioning or administration of government employees’ organization where it receives no response within ten (10) calendar
employees' organizations through acts designed to place such organizations days from date of publication or where it has been verified that the employees’
under the control of government authority. organization has already been dissolved. Upon approval, the DOLE-BLR shall
cancel the registration of the employees’ organization and delete its name
from the roster of registered employees’ organizations.
F. Registration of Trade Union
Section 4
REGISTRATION AGENCY Cancellation or revocation of certificate of registration. Subject to the
Section 7 (EO 180) requirements of notice and due process, the certificate of registration of an
employees’ organization may be cancelled or revoked on the ground of
Registration of Employee’s Organization. Government employees'
organizations shall register with the Civil Service Commission and the misrepresentation, false statement or fraud in connection with the following:
Department of Labor and Employment. The application shall be filed with the (a) conduct of organizational meeting;
Bureau of Labor Relations of the Department which shall process the same in (b) adoption or ratification of the constitution and by-laws;
accordance with the provisions of the Labor Code of the Philippines, as (c) election of officers;
amended. Applications may also be filed with the Regional Offices of the (d) minutes of the election of officers;
Department of Labor and Employment which shall immediately transmit the (e) list of voters/members; or,
said applications to the Bureau of Labor Relations within three (3) days from (f) any of the other documents submitted for registration which may have
receipt thereof. misled the DOLE-BLR in granting the application for registration.

Rule I, Section 1 (n) (IRR of EO 180) Section 5


It shall be the duty of an employees’ organization and its officers to inform its Requirements and procedure. The petition shall be in writing and verified
members on the provisions of its constitution and by-laws, CNA, and all their under oath and shall be filed by any real party in interest before the DOLE-BLR
rights and obligations under existing laws, rules and regulations. For this clearly stating the ground/s relied upon. The same shall be filed independently
purpose, registered employees’ organizations shall collect reasonable dues to of any other pending inter/intra-employees’ organization dispute.
finance seminars on public sector unionism and other relevant activities. At The procedure in the hearing and periods prescribed under Section 4 (a), (b),
least thirty percent (30%) of the members of a registered employees’ and (c) of Rule XVII (A) of these Rules shall be applied in the resolution of
organization, or any member directly or adversely affected may report to the petitions for cancellation or revocation of the certificate of registration of an
Council any violation of the above rights and conditions of membership for the employees’ organization.
imposition of the proper penalty against the officer/s concerned, including
Where a hearing is necessary, the designated Hearing Officer of the DOLEBLR
expulsion from the said organization.
shall summon the parties and their witnesses, administer oaths and resolve the
issues involved in the case. The hearing shall be terminated and the case shall
be deemed submitted for resolution not later than ninety (90) calendar days
ISSUANCE OF CERTIFICATION OF REGISTRATION AND from the date of the first hearing.
APPROVAL
Section 6
Section 8 (EO 180)
Decision of the DOLE-BLR. The DOLE-BLR shall render a decision within thirty
Registration of Employees' Organization. Upon approval of the application, a
(30) calendar days from submission of the case for resolution. The decision
registration certificate be issued to the organization recognizing it as a shall state the facts and the relief granted, if any.
legitimate employees' organization with the right to represent its members and
undertake activities to further and defend its interest. The corresponding Section 7
certificates of registration shall be jointly approved by the Chairman of the Appeal from DOLE-BLR decision. The aggrieved party may appeal the decision
Civil Service Commission and Secretary of Labor and Employment. of the DOLE-BLR to the Council within ten (10) calendar days from receipt

_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 75 79
G. Exclusive Representation || Union recognition || VOLUNTARY RECOGNITION
« Notes: »

thereof, for grave abuse of discretion or any violation of these Rules. The Action on the application. The DOLE-BLR shall either approve or deny the
appeal shall be filed with the DOLE-BLR, as the case may be. application for registration within seven (7) calendar days from receipt thereof.
The appeal shall be under oath, and shall consist of a memorandum of appeal Where the documents supporting the application are not complete or do not
specifically stating the grounds relied upon by the appellant with the contain the requisite attestation requirements, the DOLE-BLR shall, within the
supporting arguments and evidence. The appeal shall be deemed not filed seven-day period, notify the applicant in writing of the requirements needed to
unless accompanied by proof of service of a copy thereof to the appellee. complete the application. Where the applicant fails to complete the
Where no appeal is filed within the ten-day period, the decision shall become requirements within thirty (30) calendar days from receipt of the notice, the
final and executory. The DOLE-BLR shall enter this fact into the records of the application shall be denied without prejudice to its re-filing.
case. Upon completion of the requirements for registration, the DOLE-BLR shall
prepare the certificate of registration for the signatures of the DOLE Secretary
Section 8 and the CSC Chairperson.
Reply. A reply to the appeal may be filed with the Council through the CSC-
PRO within ten (10) calendar days from receipt of the memorandum of appeal Section 5
or upon the expiration of the period to file the same. Denial of registration; Grounds for appeal. The decision denying the
application for registration shall be in writing, stating in clear terms the
Section 9 reasons therefor. A copy of the decision shall be furnished the applicant
Decision of the Council. The Council shall render a decision on the appeal employees’ organization. The decision may be appealed to the Council within
within thirty (30) calendar days from receipt of the reply or upon the expiration ten (10) calendar days from receipt of notice thereof, on the ground of grave
of the period to reply. abuse of discretion or any violation of this Rule.
The decision of the Council shall be final and executory unless a motion for The memorandum of appeal together with the complete records of the
reconsideration is filed within ten (10) calendar days from receipt of such application shall be filed with the DOLE-BLR, which shall transmit the same to
decision. Only one motion for reconsideration shall be entertained. the Council within two (2) calendar days from receipt thereof. The appeal shall
be decided by the Council within sixty (60) calendar days from receipt of the
records of the case.
G. Exclusive Representation Section 6
UNION RECOGNITION Effect of registration. The registered employees’ organization shall be vested
with legal personality on the date of the issuance of its certificate of
VOLUNTARY RECOGNITION
registration. Such legal personality cannot, thereafter, be questioned except in
Section 11 (EO 180) an independent petition for cancellation of its registration in accordance with
Sole and Exclusive Employees’ Representatives. A duly registered employees' these
organization shall be accorded voluntary recognition upon a showing that no Rules.
other employees' organization is registered or is seeking registration, based on
records of the Bureau of Labor Relations, and that the said organizations has
the majority support of the rank-and-file employees in the organizational unit. RECOGNITION AFTER CERTIFICATION ELECTION
Section 12 (EO 180)
Rule V, Section 1 (IRR of EO 180)
Sole and Exclusive Employees' Representatives. Where there are two or more
Requirements for registration of employees’ organizations. The application duly registered employees' organizations in the appropriate organizational
for registration shall be signed by the members of the employees’ organization unit, the Bureau of Labor Relations shall, upon petition, order the conduct of a
comprising at least thirty (30%) percent of the rank-and-file employees in the certification election and shall certify the winner as the exclusive
organizational unit, and shall be accompanied by the original copy and three (3) representative of the rank-and-file employees in said organization unit.
duplicate original copies of the following documents:
(a) a statement indicating the name of the applicant employees’ organization, Rule VI, Section 1 (IRR of EO 180)
its principal address, the names of its officers and their respective Reporting requirements. Every registered employees’ organization shall
addresses, and the total number of employees in the organizational unit submit to the DOLE-BLR two (2) original copies of the following documents:
where the applicant seeks to operate; (a) any amendment to its constitution and by-laws and the minutes of
(b) the minutes of the organizational meeting and the names and signatures adoption or ratification of such amendments, together with the signatures of
of the members who participated therein; members who ratified the same, within thirty (30) calendar days from its
(c) the names of the members comprising at least thirty (30%) percent of the adoption or ratification;
rank-and-file employees in the organizational unit where the applicant (b) annual audited financial reports within thirty (30) calendar days after the
employees’ organization seeks to operate; close of each calendar year;
(d) financial reports, if the applicant employees’ organization has been in (c) Updated list of newly-elected and appointive officers or agents, within
existence for at least one (1) year; thirty (30) calendar days after each regular or special election of officers, or
(e) the applicant’s constitution and by-laws, minutes of its adoption or from the occurrence of any change in the officers or agents of the employees’
ratification and the list of employees who participated therein, unless the organization; and,
constitution and by-laws was ratified in the same organizational meeting, (d) list of names of members within thirty (30) calendar days after the close of
in which case, a statement of such fact shall be reflected in the minutes of each calendar year.
the organizational meeting/s.
The application for registration of any employees’ organization, including all its Section 2
accompanying documents shall be verified under oath by its secretary or Action on the report. The DOLE-BLR shall assess the reports submitted by the
treasurer and attested to by its president. employees’ organization and enter the same in its records or notify the
For purposes of registration, an organizational unit is defined under Section 1 employees’ organization concerned of the insufficiency thereof, as the case
(gg), Rule I of these Rules. may be within five (5) calendar days from receipt thereof.

Section 2 Section 3
Where to file. Applications for registration of employees’ organizations shall Effect of failure to submit reportorial requirements. When a registered
be filed with the DOLE-BLR or with the DOLE Regional Office. employees’ organization fails to submit any of the reports required under
The DOLE Regional Office shall transmit the application for registration, Section 1 of this Rule despite due notices for compliance, the DOLE-BLR shall
together with its attachments, within twenty-four (24) hours from receipt of cause the institution of the administrative process for cancellation of
the same, to the DOLE-BLR for processing. registration.

Section 3 Rule IX, Section 1 (IRR of EO 180)


Registration fee. A registration fee of One Hundred Forty (P140.00) pesos or Certification election; Who may file. Subject to the provisions of this Rule,
such amount as may be determined by the Council, shall be charged upon every certification election proceedings may be initiated through a petition for
application for registration of employees’ organizations under these Rules. certification election filed by any registered employees’ organization or the
management when requested to negotiate collectively by a registered
Section 4 employees’ organization.
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 76 79
H. Exclusive Representative || Bargaining unit/composition || RECOGNITION AFTER CERTIFICATION ELECTION
« Notes: »

(c) existence of any of the bars to a certification election under Section 3 of


Section 2 this Rule; and,
Where to file. A petition for certification election shall be filed with the DOLE- (d) such other matters as may be relevant for the final disposition of the case.
BLR. Where the petition is filed with the DOLE or CSC Regional Office, it shall
forward the same to the DOLE-BLR within three (3) calendar days from receipt Section 9
thereof. Position paper. Within a non-extendible period of ten (10) calendar days from
the date of the preliminary conference, the Med-Arbiter may direct the parties
Section 3 to simultaneously submit their respective position papers. The position paper
When to file. A petition for certification election may be filed anytime, except: shall be limited to the issues identified during the preliminary conference and
(a) when a certificate of accreditation has been issued or a certification or run- shall include arguments and evidence as the parties may deem relevant to the
off election has been conducted within the negotiating unit within one (1) disposition of the petition. All issues, arguments, and evidence not presented
year prior to the filing of the petition for certification election. during the preliminary conference are deemed waived.
In case an appeal has been filed from the Order of the DOLE-BLR certifying
Section 10
the results of the election, the running of the one (1) year period shall be
suspended until the decision on the appeal has become final and executory; Failure to appear despite notice. The failure of any party to appear in the
preliminary conference despite notice or to file the position paper shall be
(c) when an accredited employees’ organization has commenced negotiations
deemed a waiver of the right to be heard.
in good faith within the one (1) year period prior to the filing of the petition
for certification election; Section 11
(d) when a negotiation deadlock to which an accredited employees’ Issuance of an Order on the petition. Within ten (10) calendar days from the
organization is a party has been submitted to conciliation/arbitration; and, expiration of the period for the submission of the position paper, the DOLE-
(e) when a CNA has been registered in accordance with these Rules, unless the BLR shall issue an Order granting or denying the petition. In no case, however,
petition for certification election is filed within the 60-day freedom period. shall an Order be issued during the freedom period. The Order granting the
Section 4 conduct of a certification election shall state the following:
Form and contents of petition. The petition shall be in writing and verified (a) the name of the agency;
under oath by the president of the employees’ organization, or the head of the (b) the description of the negotiating unit;
agency/authorized representative. It shall contain, among others, the (c) a statement that none of the bars to a certification election exists;
following: (d) the names of the contending employees’ organization/s in the order in
which their petitions were filed, and the forced intervenor, if any; and,
(a) the name and address of petitioner, the employees’ organization
(e) a directive to the agency and the contending employees’ organization(s) to
registration number and date of registration;
submit within ten (10) calendar days from receipt of the Order, a certified
(b) the name and address of the management where the negotiating unit
list of employees in the organizational unit and a certified true copy of the
sought to be represented belongs;
latest payroll prior to the issuance of the Order.
(c) the description of the negotiating unit sought to be represented and the
approximate number of employees covered therein; Section 12
(d) the names and addresses of other registered employees’ organizations in Finality of the decision.
the organizational unit; and, (a) The Order granting the petition for certification election is final and
(e) in case there is an accredited employees’ organization — that the executory and not subject to appeal. An express statement to this effect must
petitioner has attached the signatures of at least twenty (20%) percent of be included in the order.
all the employees in the negotiating unit supporting the filing of the (b) The Order denying the petition for certification election is subject to appeal
petition. within ten (10) calendar days from receipt thereof, which must be so stated in
(f) a statement indicating any of the following circumstances: the order.
1) if there exists a registered CNA in the organizational unit — that the A denial of a petition for certification election shall be without prejudice to the
petition is filed within the sixty-day freedom period of such agreement; filing of another petition for certification election or a petition for
or accreditation if none of the bars under Section 3 of this Rule exists.
2) if an employees’ organization accredited in accordance with these Rules
failed to register a CNA with the CSC-PRO — that the petition is filed Section 13
after one (1) year from the issuance of the Certificate of Accreditation. Appeal. The Order denying the petition for certification election may be
appealed to the Council through the DOLE-BLR within ten (10) calendar days
Section 5
from receipt thereof. The memorandum of appeal shall state the specific
Assignment of the case. Within twenty-four (24) hours from receipt of the ground/s relied upon by the appellant with the supporting arguments and
petition, the DOLE-BLR Director shall assign the case to a Med-Arbiter for evidence and shall be under oath. The appeal shall not be entertained unless
conciliation and hearings. The Med-Arbiter shall cause the immediate posting accompanied by proof of service to the appellee/s.
of the date and time of the initial hearing and a copy of the petition in two (2)
conspicuous places in the agency and its regional offices/branches, if any, Section 14
where the petitioner employees’ organization seeks to operate. The Med- Period to reply. Within ten (10) calendar days from receipt of the memorandum
Arbiter shall, likewise, issue the summons to all parties named in the petition, of appeal, a reply to the appeal may be filed with the Council.
indicating the date of the first hearing and ordering the parties to appear
therein. Section 15
Decision of the Council. The Council shall decide on the appeal within forty-
Section 6
five (45) calendar days from the expiration of the period to reply. No motion
Forced Intervenor. The incumbent accredited employees’ organization shall for reconsideration shall be entertained by the Council.
automatically be one of the choices in the certification election.

Section 7
Motion for intervention; When proper. Any registered employees’ organization BARGAINING UNIT/COMPOSITION
other than the incumbent accredited employees’ organization operating within Section 9 (EO 180)
the same organizational unit may file a motion for intervention anytime before Sole and Exclusive Employees' Representatives. The appropriate
the DOLE-BLR’s issuance of its decision granting or denying the petition for organizational unit shall be the employers unit consisting of rank-and-file
certification election. The form and contents of the motion shall be the same employees unless circumstances otherwise require.
as that of a petition for certification election.

Section 8
H. Exclusive Representative
Preliminary conference; Purpose. The Med-Arbiter shall conduct a preliminary
conference within twenty (20) calendar days from receipt of the petition to Section 10 (EO 180)
determine the following: Sole and Exclusive Employees' Representatives. The duly registered
employees' organization having the support of the majority of the employees in
(a) the negotiating unit to be represented;
the appropriate organizational unit shall be designated as the sole and
(b) existing registered employees’ organizations within the negotiating unit;
_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 77 79
I. Settlement of Work Conditions || Negotiable issues; Terms and conditions not fixed by law || RECOGNITION AFTER CERTIFICATION ELECTION
« Notes: »

exclusive representative of the employees. J. Concerted Activities


Rule I, Section 1 (w) (IRR of EO 180) GOVERNING LAWS
“Exclusive Collective Negotiating Agent” refers to any registered employees’
Section 14 (EO 180)
organization which has been accredited by the CSC as the sole and exclusive
negotiating agent of all the employees in a negotiating unit in accordance with Peaceful Concerted Activities and Strikes. The Civil Service laws and rules
these Rules. governing concerted activities and strikes in the government service shall be
observed, subject to any legislation that may be enacted by Congress.
Rule VIII, Section 1 (IRR of EO 180)
Rule II, Section 3 (IRR of EO 180)
Nature of the proceedings; Determination of representation status.
Proceedings to determine the sole and exclusive collective negotiating agent Concerted activities and strikes. The Civil Service Law, Rules and Regulations
are expeditious, non-litigious in nature, and free from technicalities of law and governing concerted activities and strikes in the government sector shall be
procedure. observed by all government employees, whether or not they are members of
employees’ organizations.
The determination of the sole and exclusive collective negotiating agent shall
be through accreditation by the CSC.

Section 2 K. Implementing Agency – Public Sector


Where to file. The employees’ organization seeking accreditation shall file with Labor-Management Council; Powers and
the CSC-PRO a sworn petition for accreditation signed by a majority of the
rank-and-file employees of the negotiating unit it seeks to represent.
Composition
Section 15 (EO 180)
Section 3 Public Sector Labor-Management Council. A Public Sector Labor Management
Form and contents of the petition. The petition shall be in writing, verified Council, hereinafter referred to as the Council, is hereby constituted to be
under oath by the president of the employees’ organization, and contain the composed of the following:
following allegations, among others: 1) Chairman, Civil Service Commission Chairman
(a) that the petitioner is a duly registered employees’ organization; 2) Secretary, Department of Labor and Employment Vice Chairman
(b) when the petitioner-employees’ organization is the lone employees’ 3) Secretary, Department of Finance Member
organization within the negotiating unit — that the employees whose 4) Secretary, Department of Justice Member
names and signatures appear in the petition constitute the majority of the 5) Secretary, Department of Budget and Management Member
total number of the rank-and-file employees in the negotiating unit who The Council shall implement and administer the provisions of this Executive
supports the accreditation of the petitioner-employees’ organization; Order. For this purpose, the Council shall promulgate the necessary rules and
(c) when the petitioner-employees’ organization is the mother employees’ regulations to implement this Executive Order.
organization composed of several registered employees’ organizations –
that it has the majority membership of all the rank-and-file employees in
the negotiating unit; and,
(d) that it is in the best interest of the rank-and-file employees in the
negotiating unit that the petitioner–employees’ organization be accredited
as their sole and exclusive negotiating agent.
For purposes of accreditation, the negotiating unit is defined under Section
1(ff), Rule I of these Rules.

Section 4
Supporting documents. The following documents shall accompany the petition
for accreditation:
(a) certified true copy of the latest agency plantilla of positions;
(b) certified true copy of the latest approved payroll; and,
(c) certification from the DOLE-BLR that the employees’ organization seeking
accreditation is the only registered employees’ organization in the
negotiating unit and that no other employees’ organization in the same
negotiating unit is seeking registration.

Section 5
Accreditation fee. An accreditation fee of One Hundred Fifty Pesos (P150.00) or
such amount as may be determined by the Council shall be paid by the
employees’ organization.

I. Settlement of Work Conditions


NEGOTIABLE ISSUES; TERMS AND CONDITIONS NOT FIXED
BY LAW
Section 13 (EO 180)
Terms and Conditions of Employment in Government Services. Terms and
conditions of employment or improvements thereof, except those that are
fixed by law, may be the subject of negotiations between duly recognized
employees' organizations and appropriate government authorities.

NON-NEGOTIABLE ISSUES; TERMS AND CONDITIONS


FIXED BY LAW

_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 78 79
K. Implementing Agency – Public Sector Labor-Management Council; Powers and Composition || references || RECOGNITION AFTER CERTIFICATION ELECTION
« Notes: »

REFERENCES
- Labor Code
- A2016 Digests
- A2015 Reviewer
- Azucena

_______________________________________________________________
LABOR RELATIONS Provisions Reviewer || Prof. E. L. D. Battad 79 79

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