Beruflich Dokumente
Kultur Dokumente
Quan) 1
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
Economic relations test – analysis of existing economic Contractual employee – employed by C/SC
conditions between parties to determine existence of EER ● In job-contracting – 3 parties: (1) principal; (2)
1. Payment of PAG-IBIG contributions contractor; (3) contractual employee
2. Payment to State Insurance Fund ● In fixed-term employment – 2 parties: (1) principal; (2)
3. Deduction of withholding tax employee
4. Deduction of SSS contributions
Conditions in permissible job contracting – all must be
ENT Status – defined by law and not what the parties call it present; absence of 1 element, deemed labor-only
or say it should be. contracting
1. Independent business of contractor
CONTRACTING (inc. Labor-Only Contracting) 2. C undertakes work under own manner and
method, free from control and direction of principal
Art. 106. Contractor or Subcontractor except as to results
● Whenever an ER enters into a contract with another 3. Substantial capital or investment in the form of
person for the performance of the former’s work, the tools, equipment, machineries, work premises
EEs of the contractor and of the latter’s subcontractor (TEMP)
shall be paid. 4. Service agreement ensuring worker’s rights and
● If C/SC fails to pay the wages of his EEs, ER shall be benefits
jointly and severally liable with his C/SC to such EEs
to the extent of work performed, in the same manner ● Substantial capital OR investment – either one
and extent that he is liable to EEs directly employed suffices
by him.
● SOLE may restrict or prohibit contracting-out of labor Required Contracts
by (1) making appropriate distinctions between labor- 1. Employment contract between C/SC and its EE
only contracting and job contracting; (2) a. job
differentiations within these types of contracting; (3) b. place of work
determine who among the parties shall be considered c. wage rate
the ER. d. T&Cs
2. Service Agreement between P and C
EER exists between milling company and its 5. Fixed-period ENT; When valid
workers even during off season REQs
o Cessation of milling activities at the end • Voluntarily agreed upon
of the season is not permanent or • Parties dealt with each other on more or less equal
definitive; it is a foreseeable suspension footing
of work Difference with Project. EE: the determining factor
o EER is not severed • Project – activity
• FTE – period
Seasonal “Pakiao” EEs In general:
o ENT on pakiao basis does not make ER • LC does not mention the term “fixed period ENT”
an independent contractor but CC recognized the validity of contracts with
o Pakiao workers are considered EEs as fixed periods
long as ER exercises control over the o e.g. substitute for worker on study leave,
means by which such workers are to maternity leave, protracted total
perform their work disability
o Seasonal nature of work does not • governed by civil law (contracts)
detract from the conclusion that EER • Is fixed period ENT same as project ENT?
exists; deemed regular EEs if rehired o Project ENTs are fixed period ENTs but
every season not all fixed period ENTs are project
ENTs.
The Mercado ruling: Project EEs do not become • Brent School case: Temporary ENT agreed for 5
regular although service exceeds one year years for the purpose of building the school’s
o The one-year duration on the job of athletic program is example of fixed-term ENT;
Article 295 is pertinent to deciding court upheld contract voluntarily and knowingly
whether a casual EE has become entered by the parties
regular; not applicable to seasonal or
project EEs Brent Doctrine summarized
• Article 295 does not prohibit ENT contracts with fixed
Mercado reconciled with earlier rulings periods, provided, it is entered into by the parties
§ Mercado: workers were not in without force, duress, or improper pressure
her regular employ; they were
o Part time teacher – cannot acquire their problem in a manner most comfortable to
permanent ENT them
o May still be terminated under LC – just o Arbitrate if in-house machinery fails
or authorized cause, failure to qualify o Voluntary modes of dispute settlement
are preferred instead of government
Reversion from full-time to part-time teacher to intervention
avoid “regularization” • Work stoppage – strike if by EEs, lockout if by ER;
o Schools cannot confine teachers to part- valid causes
time basis to prevent them from o Bargaining deadlock
becoming regular; deemed o ULP
circumvention of LC provisions on • Public interest – SoLE and President may assume
probationary ENT jurisdiction or certify the case to NLRC if public
interest is at stake
Is it proper to reinstate a probationary EE?
o When illegal dismissal was done before 2. Workers’ Organization
the probationary period ended, • Combination of workmen organized for purpose of
probationary EE should be reinstated securing through united action the most favorable
o Probationary EE also entitled to SPIR conditions for its members
should reinstatement be not feasible – 6 • All unions are labor organizations but not all LOs
months counted as 1 year are unions
o Backwages – covers period from date of • Unions are understood to be
dismissal up to last day of agreed o Organized body
probation period o Of dues paying members
o Operating through elected officers
RIGHT TO SELF-ORGANIZATION o Constituting a militant, vital, and
TITLE 1 – Policy and Definitions functioning organ
i. Managerial EE – vested with powers to (1) • Any bona fide controversy involving
formulate management policies, (2) hire, layoff, o Terms and conditions of employment
recall, discipline EEs (labor standard dispute)
j. Supervisory EE – in the interest of ER, can o Issue of representation (labor relations
effectively recommend such managerial actions dispute)
k. Strike – temporary stoppage of work by the • Labor disputes are within the jurisdiction of NLRC,
concerted action of EEs as a result of a labor not the regular courts
dispute 4.1. Definitions and Examples
l. Lockout – temporary refusal of ER to furnish work • Labor standards disputes
as a result of a labor dispute o Compensation
m. Internal union dispute – all dispute or grievances o Benefits
arising rom any violation of or disagreement over o Working conditions
any provision of the CBL of a union • Labor relations disputes
n. Strike-breaker – any person who obstructs by o Organizational right dispute/ULP
force, violence, threats, any peaceful picketing by o Representation disputes
EEs during any labor controversy affecting o Bargaining disputes
conditions of work or exercise of right to self- o Contract administration or Personnel
organization or collective bargaining Policy Disputes
o. Strike area – sites or premises of ER struck o Employment tenure disputes
against as well as the immediate vicinity actually 4.2. Remedies in Labor Disputes
used by picketing strikers a. Grievance procedure – in-house mechanisms
b. Enforcement of compliance order – visitorial or
1. EER Relationship Essential administrative authority of SoLE
• If there is no EER, there is no basis for organizing c. Certification of bargaining representatives –
for purposes of collective bargaining DOLE’s determination of which union shall
• EER elements represent the EEs in collective bargaining
o Selection and engagement of ER d. Assumption of jurisdiction – SoLE or President’s
o Payment of wages power to decide dispute affecting national interest
o Power to dismiss e. Certification to NLRC – actin of SoLE empowering
o Power to control EE’s conduct NLRC to compulsorily arbitrate disputes
f. Injunction – extraordinary remedy which is not
2. Who are EEs/ERs? favored in labor law which is issued to stop an
• The term employee shall include actual or threatened commission of unlawful acts
o Any employee or require the performance of certain acts
o Not limited to the EE of any particular g. Judicial action – complaint filed with regular court
ER h. Appeal – process in which orders are elevated to
o Any individual a higher authority on specified grounds; subject to
§ Whose work has ceased due rule of exhaustion of administrative remedies
to any current labor dispute i. Review by court – no law allows appeal from
§ And who has not obtained any decisions o SoLE, NLRC, or Voluntary Arbitrator
substantially equivalent and unless grouds are GADALEJ (Rule 65)
regular employment 4.3. Alternative Dispute Resolution Modes
• The term employer shall refer to any person • Characteristics – non-adversarial, and technical
o Who employs services of another rules of procedure and of evidence are not strictly
o For whom EEs work observed
o Who pays their wages • Modes
o Directly or indirectly acts in the interest o Conciliation – efforts of conciliator to
of an ER assist the parties to end their dispute by
2.1. “One Whose Work Has Ceased…” condoning each other or finding a
compromise
3. Labor Organization as ER o Mediation – mediator takes a more
• LO deemed ER when it is acting in such relation active rule in searching for and
to person rendering services under hire in formulation solution
connection with its activities for profit or gain o Arbitration – more determinative than
conciliation or mediation but less
4. Overview of Labor Disputes technical than litigation; may be either
compulsory under NLRC or voluntary by following such date. If any such agreement is entered into
choice of parties; decision of arbitrator beyond six months, the parties shall agree on the
binds the disputants as a court verdict duration of retroactivity thereof. In case of a deadlock in
does the renegotiation of the Collective Bargaining Agreement,
4.4. Compromise Agreement the parties may exercise their rights under this Code.
• May be entered into in any stage of ADR
processes
• Agreement should be 1. Duty to Bargain Defined
o Freely entered into a. Two situations when the duty to bargain exists—
o Not contrary to LMPP i. Where there is yet no CBA
• Subject to approval of authority before whom the 1. Mutual obligation of ER and EEs’ majority
case is pending to meet and convene
2. Purposes of meeting and convening:
Art. 252. Meaning of duty to bargain collectively. a. To negotiate an agreement on the
The duty to bargain collectively means the performance subject of (a) wages, (b) hours of work,
of a mutual obligation to meet and convene promptly and (c) other terms and conditions of ENT
expeditiously in good faith for the purpose of negotiating b. To execute a contract incorporating
an agreement with respect to wages, hours of work and such agreement if requested by either
all other terms and conditions of employment including party
proposals for adjusting any grievances or questions 3. Kind of compliance required is prompt,
arising under such agreement and executing a contract expeditious, and in GF
incorporating such agreements if requested by either 4. Limitations or reservations of the duty: it
party but such duty does not compel any party to agree does not compel any party to agree to a
to a proposal or to make any concession. proposal or make a concession
ii. Where CBA exists
Art. 253. Duty to bargain collectively when there 1. The duty to bargain means all of the above
exists a collective bargaining agreement. and the obligation to not terminate or
When there is a collective bargaining agreement, the duty modify the CBA during its lifetime
to bargain collectively shall also mean that neither party 2. But 60 days before the CBA expires, either
shall terminate nor modify such agreement during its party may notify the other in writing that it
lifetime. However, either party can serve a written notice desires to terminate or modify the
to terminate or modify the agreement at least sixty (60) agreement
days prior to its expiration date. It shall be the duty of both 3. During the 60-day period and until a new
parties to keep the status quo and to continue in full force agreement is reached, the CBA remains in
and effect the terms and conditions of the existing full force and effect, the parties are duty-
agreement during the 60-day period and/or until a new bound to keep the status quo. The law
agreement is reached by the parties. provides for AUTOMATIC RENEWAL OR
EXTENSION OF THE CBA.
Art. 253-A. Terms of a collective bargaining 4. The 60-day period does not always
agreement. coincide with the freedom period. The 60-
Any Collective Bargaining Agreement that the parties day period refers to submission of proposal
may enter into shall, insofar as the representation aspect to renegotiate the non-representational
is concerned, be for a term of five (5) years. No petition provisions of the CBA.
questioning the majority status of the incumbent
bargaining agent shall be entertained and no certification LABOR ORGANIZATIONS AND UNION
election shall be conducted by the Department of Labor REGISTRATION
and Employment outside of the sixty-day period
immediately before the date of expiry of such five-year Title 4 – Labor Organization
term of the Collective Bargaining Agreement. All other Chapter 1 – Registration and Cancellation
provisions of the Collective Bargaining Agreement shall
be renegotiated not later than three (3) years after its Article 240. Requirements of registration
execution. Any agreement on such other provisions of the • Unions shall acquire legal personality, entitled to
Collective Bargaining Agreement entered into within six rights and privileges granted to LLOs upon
(6) months from the date of expiry of the term of such issuance of certificate of registration;
other provisions as fixed in such Collective Bargaining requirements
Agreement, shall retroact to the day immediately
• Filed with the Bureau or Regional offices but acted 5.5a. Chartered Local has to be Registered; Requirements
upon by Bureau • Has to be registered, not just reported
o Federations • Duty of F/NU to submit the following
o National unions o Charter certificate it issued to chapter
o Workers’ associations operating in more o Names and addresses – local’s officers
than one region and office
o CBL
5. Registration requirements 5.5b. Tentative Legal Personality to File PCE
5.1. Federation or National Union • Upon being issued a charter certificate, the
• Application accompanied by the following chapter acquires legal personality, but only for
documents purposes of filing a PCE
o Names and addresses – union and 5.5c. Submission of Confirming Documents
officers • After F/NU submits documents, the Chapter also
o Minutes and list of members – has to submit the same (confirming documents)
organizational meeting • Non-submission – chapter not entitled to rights
o Annual financial reports – (1) in and privileges of LLO
existence for at least 1 year, (2) • Documents must be submitted within 30 days of
collected any sum from its members receipt of notice from Regional Office
o CBL • Med-Arbiter may dismiss PCE if
o Resolution of affiliation – at least 10 o Union is not listed as LLO
legitimate labor organizations which are o Union fails to attach in its petition its
certified collective bargaining agents charter certificate
o Names and addresses – companies and 5.5d. Validity of DO No. 40-03
members • Order imposing 30 day period for submission of
5.2. Industry Union confirming documents – valid
• Same requirements as F/NU 5.5e. A Trade Union Center Cannot Create a Chapter
5.3. Independent Labor Union • Only duly registered F/NUs can create chapters
• Application accompanied by the following 5.5f. When does a Chapter Become an LLO?
documents • Deemed registered and vested with legal
o Names and addresses – union and personality on the date of issuance of its certificate
officers of registration or certificate of creation
o Approximate number of EEs in 5.5g. Recognition by BLR not a Ministerial Duty
bargaining unit
• BLR has to determine veracity of submitted
o Statement – not reported as a chartered
documents; has power to deny recognition
local of any F/NU 5.5h. Requirements Relaxed
o Minutes and list – organizational
• Creation of a local no longer needs subscription by
meeting
minimum number of members
o Names of members comprising at least
20% of all EEs in the unit • Only independent unions are required to comply
with the 20% membership requirement
o Annual financial reports – (1) existence
5.5i. 20 Percent Membership Requirement
for at least 1 year, (2) collected any
amount from members • Independent union needs 20% min. membership
o CBL to register
5.4. Workers’ Association • Required at the time the independent union
• Application accompanied by the following applies to register
documents 5.5j. Withdrawal by Members
o Names and addresses – association • Before filing of application – presumed voluntary
and officers and will prejudice the registrability
o Minutes and list of members – • After filing of application – considered involuntary
organizational meeting and does not prejudice application
o Financial reports 5.5k. Union’s Legitimacy not Subject to Collateral Attack
o CBL • Legal personality may only be questioned through
o If operating in more than one region – an independent petition for cancellation; not be
resolution of membership of each collateral attack
member association
5.5. Chartered Local 6. Collective Bargaining Unit (CBU)
• To disaffiliate is a right, but to observe the terms 11.1. Effect of Cancellation of Registration of Federation or
of affiliation is an obligation National Union or Locals/Chapters
• In the absence of enforceable provisions in the • Divests local/chapter of their status as LLO, unless
federation’s constitution preventing disaffiliation of they are covered by a duly registered CBA (in
a local union, a local may sever its relationship which case, they are allowed to register as
with the parent (part of right to self-organization) independent unions. If they fail, they lose their
• EFFECT ON LEGAL STATUS: if union is not status upon CBA’s expiration)
independently registered from the federation, it is
not entitled to the rights and privileges granted to 12. Merger or Consolidation
a LLO • Merger – LO absorbs another, resulting in
o Can’t file petition for certification election cessation of absorbed LO’s existence and
10.1. Local Union is the Principal; Federation, the Agent continued existence of absorbing LO
10.2. When to Disaffiliate o Effect – transfer to absorbing LO all
• GR: only during 60-day freedom period rights, interests, and obligations to the
immediately preceding the expiration of the CBA absorbed org.
o Freedom period – last 60 days of the 5th • Consolidation – creation of new union arising from
and last year of a CBA unification of 2/more unions
• XPN: before freedom period if: o Newly created org. acquires all rights
o Carried out by majority of members in and interests of the consolidating org.
the bargaining unit; o Occurs between 2 unions that are
o Contract of affiliation does not specify approximately the same size
period for possible disaffiliation 12.1. Practical Considerations
§ If there is, stipulation must be 12.2. Notice of Merger/Consolidation of LO; Where to File
observed • Filed and recorded by RO that issued certificate of
10.3. Disaffiliation must be by Majority Decision registration/certificate of creation of chartered
• Entire membership through secret balloting local of either the merging or consolidating LO.
• If minority – may constitute disloyalty • If NU/F – notice filed with Bureau
10.4. Disaffiliation: Effect on Union Dues 12.3. Requirements of Notice of Merger/Consolidation
• Obligation of ER to deduct and remit dues to • Notice of merger with:
federation is conditioned on the individual check- o Minutes of merger convention or
off authorization of the local union members general membership meeting/s of all
• Federation entitled to receive it only as long as merging Los with list of members who
local union is affiliated approved; and
• Obligation of EE to pay union dues coterminous o Amended C/BL and minutes of
with affiliation/membership ratification, unless ratification transpired
• Local which has validly withdrawn from its in merger convention, which fact shall
affiliation with the parent assoc. and which be indicated
continues to represent the EEs of an ER is entitled • Certificate of registration issued to merged LO
to the check-off dues under CBA shall state registration number of one of the
10.5. Disaffiliation: Effect on Existing CBA; the merging Los as agreed upon by the Los and
“Substitutionary” Doctrine indicate:
• CBA continues to bind members of new or o New name of merged LO
disaffiliated and independent union up to CBA’s o Fact that is a merger
expiration date o Name of merged Los
• Substitutionary Doctrine – EEs cannot revoke o Office or business address
validly executed CBA with ER by simple expedient o Date when each LO acquired legitimate
of changing their bargaining agent personality as stated in original
10.6. ER not a Party certificate of registration
• Test of bargaining unit’s appropriateness – • When all other factors are equal, the desires of the
Whether it will best assure to all EEs the exercise EE are relevant in determining the appropriate
of their collective bargaining rights (community of bargaining unit
interests)
• Factors of community of interest Single or “ER Unit” Preferred
o Earnings • One enterprise = one BU
o Terms and conditions of work • GR: Single unit preferred
o Kinds of work performed XPN: substantial distinctions between members of
o Qualifications, skill and training same class may justify creation of separate
o Frequency of contact among EEs bargaining unit
o Geographic proximity
o Continuity of production processes Exceptions to One-Unit Policy
o Common supervision and determination • Rule must give way to right of EEs to form unions
of labor-relations policy when there are substantial differences of interests
o History of collective bargaining even within workers of same class (plant unit, craft
o Desires of the EEs unit, secretaries – all rank and file but no
o Extent of union organization community of interests)
• Bargaining History Not Decisive Factor
o Although a factor in determining Companies with Related Businesses
appropriateness of bargaining unit, it is • 2 corporations cannot be treated as a single
not decisive or conclusive – other bargaining unit even if their businesses are related
factors considered as a whole to
determine mutuality of interests Subsidiaries and Spun-Off Corporations
• Workers of separate juridical personalities cannot
Exclusion of Confidential EEs belong to single bargaining unit
• Confidential EEs – assist and act in confidential
capacity to, or have access to confidential matters The 4-Factor Analysis
of, person who exercise managerial functions in • 4 factor analysis in determining whether 2 or more
the field of labor relations ERs constitute a single ER
• Confidential EEs cannot be union members o Interrelations of operations
o Centralized control
Treatment as to Certain EEs o Common management
• Temporary or Part-Time EEs o Common ownership
o Eligibility to be union members depend • Absence of the arms-length relationship found
on “reasonable likelihood of eventual among unintegrated companies
employment” • Most critical factor – centralized control
• Seasonal EEs
o Included: seasonal, part-timers, BUT Significance of BU
different bargaining unit • Membership in bargaining unit determines
o Excluded: casual EEs o Eligibility to vote
§ XPN: casual workers of ER o EEs represented in bargaining
who operates a referral o EEs covered by the resulting CBA
system, for unskilled labor • CBU v. Union
• Probationary EEs o In CE – voters comprise the whole
o Included if there is reasonable likelihood bargaining unit, not just the union
of eventual employment o In CBA ratification – voters are whole
bargaining unit, not just union
Referendum Where Interests are Dissimilar o In strike voting – only union members
• Referendum to ascertain will of EEs to be included can vote
or excluded in existing CBU when interests are
dissimilar to those other rank-and-files of the BARGAINING AGENT and CERTIFICATION
existing bargaining unit ELECTION
Desire of the EEs; The Globe Doctrine Article 268. Representation Issue in Organized
Establishments
o Notice period (264) – renegotiation of 3.8h. Eight Ground – Election Bar: Lack of 25% Support
non-representational aspects; not later • PCE should be filed
than 3 years after execution o Within freedom period
o Freedom period (265/268) – o Supported by at least 25% of the
representational issues; within 60 days bargaining unit
before expiration of CBA • Requirement pertains to UNIT, not the enterprise
• Requisites of Contract Bar – CBA must o If rank-and file are unionized – need
o Contain substantial terms and 25% support
conditions of employment o If supervisors unorganized – not
o Signed by parties required
o Effective and expiration date on face of • Election despite lack of 25% support – court may
the contract Med-Arbiter may relax requirement; only relevant
o Registered when it becomes mandatory to conduct a CE
• Contract bar rule applied • Effect of withdrawal of signature
o If CBA under deadlock and contract bar o Before filing – petition may be denied
rule is applicable – old CBA is extended (withdrawal presumed voluntary)
until new one is signed o After filing – petition still granted
o Unproved surreptitious registration of (presumed involuntary)
CBA – there must be evidence proving
the allegation before contract bar is lifted 3.9. Prohibited Grounds for the Denial/Suspension of the
• Contract bar rule not applied Petition
o Defective CBA – if CBA is defective, no a. Commingling
legal effects can be attributed to it; to bar b. Assailing validity of registration
a CE, the CBA must be adequate in that c. Challenging authority of Med-Arbiter
it comprises substantial terms and
conditions of employment 3.9a. Commingling
o Referendum to Register an Independent • Inclusion of EEs outside bargaining unit
Union – referendum is not the same as • Effect – EEs are just automatically removed; PCE
union disaffiliation/severance; not is not denied
disallowed even while CBA exists
o CBA signed before or within freedom 3.9b. Validity of Registration
period – effect of “early agreement”; • Validity of registrations may only be settled by the
representation case shall not be Regional Director in an independent petition for
adversely affected by a CBA registered cancellation; cannot be collaterally attacked in
before or during the last 60 days of a PCE proceedings
subsisting agreement
§ CBA can be renegotiated 3.9c. Authority to Decide Existence of EER; Med-Arbiter’s
before or during freedom Order Appealable to Secretary
period • Med-Arbiter has authority to decide on EER
§ If negotiating EBR is replaced questions; SoLE has appellate jurisdiction over
by new winning union – new MA decisions
union must respect • Issues on existence of EER are answered in the
renegotiated CBA; recourse is order granting/deying the PCE so these issues do
to bargain for the shortening not stall the PCE
of the contract
• MA has power to determine eligibility of voters
§ When CBA is entered into at
the time where there is 3.10. ER a Bystander; Cannot Oppose PCE
already a pending PCE – CBA
• Principle of ER as bystander is strictly observed in
is given temporary effectivity
PCE proceedings
until it is replaced by the new
• Choice of representative is the exclusive concern
EBR
of the EEs
o CBA signed despite Suspension Order
may be invalidated – MA may order • ER’s recourse – ER can file separate petition for
suspension upon filing of PCE until cancellation of registration on the following
proceedings end grounds
o Misrepresentation
o False statement
o Fraud 3.13b. Conducting the CE: The Voters
a. Members of bargaining unit for at least 3 months
3.11. Action on the Petition; Approval prior to filing of PCE
• MA should decide within 10 days from last hearing b. Dismissed from work but contesting legality of
• If there are no grounds to dismiss or deny, MA dismissal in the proper forum
should grant PCE
• In case of disagreement over voters’ list – all
3.12. First Occasion of Appeal: Order Granting or Denying contested voters shall be allowed to vote but their
Petition for CE votes shall be segregated and sealed in separate
- 2 appeals in PCE Proceedings; filed to SoLE envelopes
o Med-Arbiter’s decision granting or • EEs of an independent contractor are not qualified
denying PCE to vote
o Order certifying election result • Dismissed EEs – if dismissal is under question,
- Unappealable – approval of PCE in unorganized they can still vote
establishments • Probationary EE – as long as eligible to belong in
- Denial of PCE is always appealable bargaining unit and has rendered at least 3
months of service
• Appeal requirements • INK Believers may vote – union membership is not
o Verified under oath a pre-requisite to vote in CE
o Memorandum of appeal specifically
stating 3.13c. Conducting the CE: The Voting
§ Grounds • Voting shall open on the date and time agreed
§ Supporting arguments upon during the pre-election conference
§ Evidence • Procedure in the challenge of votes
o Filed in the Regional Office where o Votes are segregated
petition originated o Votes noted in minutes by election
o Copy furnished to contending unions officer
and ER o Opened by Med-Arbiter only if they will
Ø Period to appeal – 10 days from Med-Arbiter’s materially alter election results
decision • Perfection of protest – parties may file protests
Ø Regional director to transmit entire records to based on conduct or mechanics of the election
SoLE within 24 hours from receipt of appeal o Protest shall be recorded in minutes
Ø SoLe has 15 days from receipt of the entire § If not recorded – deemed
records of petition to decide on appeal waived
Ø Filing of Memorandum of Appeal stays the holding o Formalized with Med-Arbiter with
of any certification election specific grounds and evidence within 5
Ø SoLE decision becomes final after 10 days from days after close of election proceedings
receipt of parties § Not recorded or formalized –
Ø No Motion for Reconsideration of the decision protest deemed dropped
shall be entertained
Ø Within 48 hours from notice of receipt of decision 3.13d. Conducting the CE: Canvassing of Votes
by parties, records shall be remanded to Regional • Immediately after election in the presence of
Office for implementation representatives of contending unions
• Election Officer shall give each representative a
3.13. Conducting the CE copy of the minutes and results
• Ballots and tally sheets shall be sealed and
3.13a. Pre-election Conference transmitted to the Med-Arbiter within 24 hours
• Raffle of the case – within 24 hours from receipt of from completion of canvass
the notice of entry of final judgment granting the
PCE, Regional Director shall raffle the case to an 3.13e. Who Wins in the CE; Proclamation and Certification
Election Officer who shall have control of pre- • Med-Arbiter issues an order proclaiming the
election conference and election proceedings results and certifies the union which obtained
• Pre-election conference completed within 30 days majority of the valid votes cast as sole and
from date of first hearing exclusive bargaining agent if
o No protest was filed or perfected within 3.16. Second Occasion of Appeal: Order Certifying the
the 5-day period Election Result
o No challenge or eligibility issue war • Decision of Med-Arbiter may be appealed to SoLE
raised or if raised would not materially within 10 days from receipt by parties
change the results • Appealed filed in Regional Office where petition
• Certification of collective bargaining agent – union originated
receiving majority of valid votes case certified as • Period to reply – 10 days from receipt of
EBA within 5 days from day of election, provided memorandum of appeal; reply filed directly with
no protest was recorded in minutes SoLE
• SoLE has 15 days from receipt of entire records to
3.14. Failure of Election; Motion for Another CE decide on appeal; decision final after 10 days; no
• In order to have valid election – at least a majority MR allowed
of ALL eligible voters in the unit must have cast 3.17. Election Irregularities, Protest by ER
their votes • ER allowed to protest CE
• Failure of election – less than majority if eligible • Protests filed beyond 5 days may still be
voters cast their votes and no material challenged entertained – policy of workers’ rights over
votes technicalities
o Effect – Another election may be held
within 6 months from date of declaration 4. Third Method: Consent Election
of failure; no need to file new PCE • Voluntarily agreed by parties, with or without
o Within 24 hours from receipt of motion intervention of DOLE
for new election, Election officer shall • Consent election may take place in organized and
§ Schedule another election to unorganized establishments
be held within 15 days • Med-Arbiter shall persuade contending unions to
§ Cause posting of otice of agree to consent election if possible
election at least 10 days prior o If unions agree – MA no longer needs to
to scheduled date of election decide on PCE; immediately schedule
in 2 conspicuous paces in pre-election conference within 10 days
establishment from consent election agreement
3.15. Run-off Election 4.1. Effect of Consent Election
• Election with three or more choices (2 unions + “no • Results of consent election (whether or not PCE
union) – no union received MAJORITY of valid was filed) = bar to holding another election within
votes cast 1 year (12-month bar)
a. Run-off election conducted within 10
days from close of election proceedings 5. The Winner as Sole and Exclusive Representative
b. Only unions which received 2 highest • “Exclusive” – ER must treat with the representative
votes (no more “no union”; there may be
to the exclusion of all other claiming bargaining
more than 2 unions in case there was a
agents
tie)
c. Total number of votes for all contending 5.1. Exclusive Bargaining Agent Represents Even the
unions is at least 50% of number of Minority Union
votes cast (“no union” should not have
• When the certified union files a claim against the
won)
ER and the case is decided, the decision binds
• Qualification of voters in run-off election even the minority union, which, therefore, also
a. Same voters’ list used in CE shall be barred from filing another case
used in run-off elections
• EBA represents its members but it cannot negate
• Conditions of run-off election EE’s choices on purely personal/individual matters
a. Valid election
b. At least 3 choices Grievance Machinery and Voluntary Arbitration
c. No union obtained majority of valid votes Arts. 273-277, Labor Code
cast
d. Total number of votes for all unions is at Art. 273 Grievance Machinery and Voluntary Arbitration
least 50% of votes cast
e. No unresolved challenge of voter or
election protest
1
Art. 1702, NCC in consonance with Labor Code
8. Multi-Employer Bargaining
• Centralized/national negotiations or Industry-wide 2. First ULP in Bargaining – Failure or Refusal to Meet
bargaining in other countries and Convene
• PH rule – only enterprise-level/decentralized • ER guilty of ULP in refusing to bargain with EBR
bargaining of EEs
8.1. Rationale of Multi-Employer Bargaining • To bargain in good faith
• ERs’ union beneficial in highly competitive o ER should meet with the union
industries to ensure uniformity of labor costs o Recognize the union for purpose of
collective bargaining
Article 263. Meaning of Duty to Bargain Collectively o Recognize the union as EBR of all EEs
• Performance of a mutual obligation to meet and in the bargaining unit
convene promptly, expeditiously, and in good faith • Duty to bargain extends beyond negotiations –
for the purpose of negotiating an agreement and continues to apply during the entire term of the
executing a contract if requested by either party agreement
• Duty to bargain does not compel parties to agree • Union guilty of ULP in refusing to bargain
collectively (e.g. imposing condition that ER first
Article 264. Duty to Bargain Collectively When There submit to an audit of his books before union would
Exists a CBA (Notice Period) meet with him)
• If there is an existing CBA – neither party shall
terminate or modify CBA during its lifetime 2.1. Unresolved Petition for Union Cancellation
o XPN – Written notice to renegotiate non- • Pendency of a petition for cancellation of union
representational provisions sent at least registration does not preclude collective
60 days prior to its expiration date bargaining
(notice period) • Unless certificate and status are actually revoked,
• Duty of both parties – keep status quo during the ER is duty-bound to collectively bargain with Union
60-day period and/or until a new agreement is
reached 2.2. Refusal to Bargain with an Unregistered Chapter, not
ULP
1. Duty to Bargain Defined • Local union should be
• 2 situations when duty exists: (1) pre-CBA, and (2) o Registered
post-CBA o Designated by majority of EEs as EBR
• Pre-CBA – mutual obligation to meet and convene
to negotiate on terms and conditions of ENT and 2.3. Selling the Company
execute contract
• ER guilty of ULP – directly discharged EEs to 2.8. Alleged Interference in the Selection of the Union’s
forestall a demand for collective bargaining; selling Negotiating Panel
to a company he knows will not accept his EEs • If ER interferes in selection of union negotiators, it
• Only motive of ER for the sale of his business is to can be presumed that ER did so to defeat workers’
avoid a collective bargaining negotiation rights
• Substantial evidence required to support claim
2.4. Successor Employer: Continuity and Identity
• Transferee is “successor ER” when there is a 2.9. Non-reply to Proposal; CBA Imposed on ER: “The Kiok
transfer of assets and EEs but the identity of the Loy Experience”
employing enterprise is unchanged • NLRC can order that the proposed CBA imposed
o No substantial and material alteration in be adopted if ER is guilty of unjustified refusal to
the enterprise bargain
• Transferor’s duty to recognize and bargain • Company’s refusal to make counter proposals, if
devolves upon the transferee considered in relation to the entire bargaining
• Acquiring ER is successor of the bargaining process, may indicate bad faith
obligations of his predecessor IF there is a
continuity in the business operation 3. Second ULP in Bargaining – Evading the Mandatory
• Not Successor ER – buyer makes substantial and Subjects
non-discriminatory personnel and operational • Mandatory subjects – wages, hours, and other
changes terms and conditions of employment
o No need to recognize or bargain with the • ULP – refusal to negotiate on mandatory subjects
incumbent union • Not ULP – refusal to negotiate on non-mandatory
o Duty arises only after he sets initial subjects (inclusion/exclusion of people in panel,
terms and conditions of ENT reinstatement of EE prior to negotiating, etc.)
2.5. Conversion to Independent Franchise or Operation 3.1. Wages and Employment Conditions
• Decision to relinquish operational control is not a • Wage – remuneration or earning, however
mandatory subject of bargaining designated, capable of being expressed in terms
• Not ULP even if all union members are terminated of money
if ER had no anti-union motivation and decision
was solely for business reasons 3.1a. Wage Factors; “Solomonic” Approach
• Solomonic approach (middle-ground approach) –
2.6. Do Economic Exigencies Justify Refusal to Bargain? – not necessarily the best method of resolving wage
No. disputes; tends to lead to more deadlocks than
• Not ULP – ER rejects demands BUT continues to practical solutions
negotiate • Factors considered
o Bargaining history, when applicable
2.7. Acts not Deemed Refusal to Bargain o Trends and amounts of arbitrated and
a. Adoption of adamant position in good faith agreed wage awards
b. Refusal to bargain over demands for commission o Previous CBAs
of ULP (e.g. refusal to bargain with uncertified o Industry trends
union) o Capacity to pay
c. Refusal to bargain during period of illegal strike o Public interest
(ER’s duty to bargain becomes operative again as
soon as union voluntarily terminates illegal strike) 3.2. Workloads and Work Rules
d. No request for bargaining • Employee workloads – mandatory subject
e. Union seeks recognition for inappropriately large • Company rules relating to safety and work
unit practices within the meaning of “other terms and
f. Union seeks to represent some excluded persons conditions of employment” – mandatory subjects
g. Rank-and-file unit includes supervisors
h. Demand for recognition and bargaining made 3.2a. Code of Conduct
within year following certification election and • Code of Discipline – mandatory subject
workers voted for no union
i. Union makes unlawful bargaining demands 3.3. Management Prerogatives Clause
• Not ULP – ER’s insistence, even to the point of • Non-mandatory subject – insistence can be
impasse, on inclusion of management construed as bargaining in bad faith (ULP –
prerogatives clause covering conditions of evasion of duty to bargain)
employment in CBA
3.12. When Is There Deadlock or Impasse?
3.4. Union Discipline Clause • Bargaining impasse
• Internal union disputes are not mandatory o Good faith bargaining of parties
subjects (parties cannot insist to the point of o Failure to resolve the issue
impasse) o No definite plans for further efforts to
break the deadlock
3.5. Arbitration, Strike-Vote, or No-Strike Clauses • No valid bargaining impasse if deadlock is caused
• ER may bargain to an impasse over inclusion of by failure of one of the parties to bargain in good
arbitration and no-strike clauses faith
3.6. No-Lockout Clause; Clause Fixing Contractual Term 3.12a. “Off-the-Record” Discussion, Deadlock
• ULP – ER’s refusal to bargain over the duration of • Off-the-record discussions may be considered in
the contract; but ER can refuse to agree determining impasse
3.7. Signing Bonus 3.12b. Duty to Bargain When There Is Deadlock or Impasse
• Grant motivated by goodwill created when CBA is • In case of deadlock – negotiations continue with
successfully negotiated and signed; if no goodwill, assistance of third party
signing bonus is not demandable
3.12c. Strike or Lockout in Case of Deadlock
3.8. Voluntary Benefits • Bargaining deadlock is valid reason to declare a
• Benefits granted by ER but not required by law strike or lockout
• Mandatory subject if affects terms and conditions • S/LO is a method of resolving an impasse –
of employment constrains parties to end impasse and go back to
negotiation table
3.9. No Duty to Agree Even on Mandatory Subjects • Deadlocks can be resolved through arbitration by
• Duty to bargain does not include obligation to Labor Arbiters – Even if union’s petition was for
agree compulsory arbitration, the subsequent
agreement of ER to submit to arbitration makes
3.10. Non-Mandatory Subjects the arbitration a voluntary one. Labor Arbiter can
• Bargaining Impasse arbitrate voluntary arbitrations as long as parties
o Mandatory subject – parties can insist agree.
on inclusion even to the point of a
bargaining impasse 4. Third ULP in Bargaining – Bad Faith
o Non-Mandatory subject - parties cannot • Good faith bargaining requires more than formal
insist to the point of a bargaining discussions – there must be sincere effort to reach
impasse, even if in good faith; parties agreement even when none is reached
may only discuss non-mandatory • ER cannot be guilty of refusal to bargain if the
subjects if both agree union itself is not bargaining in good faith
• Strike/Lockout
o Mandatory subject – allowed to 4.1 Determination of Good Faith; A Question of Fact
strike/lockout in case of deadlock • Good faith or bad faith is inferred from the facts
o Non-mandatory subject – may discuss • Court looks into evidence to find if there is
but if parties cannot agree, they cannot substantial proof of bad faith
resort to strikes/lockouts • Determination based on negotiations as a whole
(not particular provisions of the contracts)
3.11. Bargaining to the Point of Impasse; Not Necessarily
Bad Faith 4.2. When Can Bargaining in Bad Faith Occur?
• Impasse does not establish bad faith • Charge should be raised while the bargaining is in
• Mandatory subject – insistence will not be progress
construed as bargaining in bad faith
• When the bargaining is finished and CBA has 4.3d. Bad Faith: Boulwarism; “Take-It-or-Leave-it”
been executed voluntarily by the parties, charge of Bargaining
bad faith is too late and untenable
• CBA is proof that ER exerted reasonable effort of 4.4. Not Bad Faith to Propose Modification to the Expiring
good faith bargaining CBA
• When CBA is about to expire, not bad faith
4.3. Instances of Bad Faith: Delay of, or Imposing Time Limit bargaining when a party proposes modifications to
on Negotiations it (see rule on notice period)
• Unwarranted delay in negotiations may be
evidence of bad faith 5. Fourth ULP in Bargaining – Gross Violation of the
• Delay motivated by desire to undermine the union Contract
• Company’s refusal to make counter-proposal to • Occurs during the effectivity of a CBA
the union’s proposed CBA • Duty to bargain goes beyond negotiations;
• Mere filing of petition for certification election does includes faithful adherence to contract
not justify suspension of negotiation by ER;
petition must first comply with rules 6. Ratification by the CBU; Mandatory Requirements
• Agreement negotiated by EBR should be
4.3a. Bad Faith: Surface Bargaining; Shifting Bargaining approved by the majority of all the workers in the
Positions; Blue Sky Bargaining bargaining unit
• Surface bargaining – entering negotiations without • Posting of CBA in 2 conspicuous places in the
any intention of reaching an agreement (ULP) establishment for 5 days
• Shifting bargaining positions – repeated shifts in • The CBA submitted to DOLE must contain a
position and attitude whenever a tentative sworn statement of Union Secretary, attested by
agreement is reached (ULP) the Union President
• Blue-Sky bargaining – making exaggerated or
unreasonable proposals (not ULP) 6.1. Invalid Ratification
• Intent can only be inferred from the totality of the • Non-compliance with mandatory requirements
party’s conduct both at and away from the renders CBA ineffective
bargaining table
6.2. When Ratification Not Needed
4.3b. Giving of Information • When CBA is a product of an arbitral award by
• Part of good faith bargaining is supplying of government authority or by voluntary arbitrator
information to the other party • CBA still has to be posted (for information, not
• EBR has the right to ask for and be furnished with ratification) and registered with DOLE
the ER’s annual audited financial statements if • Remedy against arbitral awards – certiorari
requested in writing
o After union has been recognized by ER 6.3. Ratified but Unsigned
as EBR • CBA effective on ratification even without
o After union is certified by DOLE as EBR signature of union president
o During the collective bargaining • Effective even if there’s a provision stating
negotiations “agreement not valid unless signed”
o Within the last 60 days of the life of a
CBA (freedom period) 6.4. Unratified but Implemented
• Audited financial statements should be provided • CBA valid if EEs enjoyed benefits from it
by ER within 30 calendar days after receipt of • Cannot receive benefits and later disclaim validity
union’s written request
o Refusal to provide relevant information 7. Execution of Contract
is violation of duty to bargain • Law does not specify which comes first, ratification
• Duty to provide information applies to both ER and or execution – sequence is immaterial as long as
Union it is ratified
4.3c. Bad Faith: Inflexible Demands; Strike Amid 7.1. Unwritten or Unsigned Agreement
Negotiations • Valid even if not reduced to writing if neither party
requests a written instrument
1.2. Injunction issued by Regular Court, When Proper o BoC – contractual breach redressed like
• Industrial Court – filed by ERs or EEs an ordinary contract or obligation
• Regular Court – persons unrelated to labor dispute
(e.g. neutral ERs in common situs picketing) 1.1. Elements – ULP at the enterprise level:
• Limited to restraining any unlawful act/protecting a. EER
innocent third parties b. Act done is expressly defined in the Code as an
act of ULP
UNFAIR LABOR PRACTICES
1.2. Prejudice to Public Interest is not an Element of ULP
Title 6 – Unfair Labor Practices
Chapter 1 – Concept 2. Prosecution of ULP
• Civil aspect
Article 258. Concept of ULP and Procedure for o Liability for damages passed upon by
Prosecution Thereof Labor Arbiter
• ULPs violate the constitutional right of workers to o Quantum of evid.: substantial evidence
self-organization • Criminal offense
• Violation of civil rights of both labor and o Instituted after finality of judgement in
management; criminal offenses against State labor case
• Civil aspect o Criminal charge proven independently
o Jurisdiction of Labor Arbiters from labor case
o Subject to exercise of President or SoLE o Quantum of evid.: beyond reasonable
of their powers doubt
o Covers claims for damages, attorney’s o Concurrent jurisdiction of MTC and RTC
fees, and other affirmative reliefs o Prescription: 1 year
o Las to resolve within 30 calendar days
from the time they are submitted for Chapter 2 – ULP of ERs
decision
o Recovery of civil liability in Article 259. ULP of ERs
administrative proceedings bars ULP OF ERs
recovery under Civil Code a. Interference
• Criminal aspect b. Yellow dog conditions
o Final judgement in admin. proceeding c. Contracting out
finding ULP is required before any d. Company unionism
criminal prosecution of case e. Discrimination for or against union membership
o Period of prescription of offense is f. Discrimination because of testimony
interrupted during pendency of admin. g. Violation of duty to bargain
Case h. Paid negotiation
o Final judgment in admin. case not i. Violation of CBA
binding in criminal case nor can it be
considered evidence of guilt; ONLY 1. Conditions Precedent to ULP charge
serves as proof of compliance for a. Injured part within definition of EE
requirement of filing criminal action b. Act charged falls under prohibitions of Code
- ULP is and has to be related to worker’s right to
1. Concept of ULP organize. If this connection is absent, the
• Pertains to practices unfair to labor; can be contention of ULP may be rejected as baseless
committed by ER or Labor Organization and irrelevant.
• Based on Constitutional right to self-organize – - Even if EE was illegally dismissed, not ULP if act
violations are considered public offenses which is not connected with union activities
carry both civil and criminal liabilities - Enumeration is not exhaustive listing of ULP
• Refers only to acts opposed to workers’ right to incidents
organize; if not pertaining to said right, not deemed
ULP no matter how unfair 1.1. Historical Legislative Evidence of the Link
• ULP v. Breach of Contract
o ULP – involve violation of public right or 2. ILO Convention No. 98
policy, prosecuted like criminal offenses
3. No ULP: Valid Exercise of Management Rights
• Directly or indirectly using V/I to interfere, e.g. b. Purchaser acquired assets assuming the risk of
indirect – hiring men to provoke union EEs to having to bear the liabilities that said litigation may
fabricate a ground for dismissal eventually entail
5.5. Espionage and Surveillance 5.10. Successor ER; Piercing the Corporate Veil
• Spying on the EEs even if the fruits of the • EEs cannot be separated if no real closure, e.g.
espionage were not actually used against them same company merely reappeared under a
different name
5.6. Economic Inducement o Engaging in same business
• ER announces benefits prior to a representation o Owned by same people
election intended to induce EEs to vote against the o “closure” calculated to defeat workers
union organizational right
• “New” company will be treated as continuation of
5.7. ER’s Expression of Opinion; Totality of Conduct the old one
Doctrine • Corporation will be considered as a mere
• Totality of Conduct Doctrine – ER’s culpability due association of persons and liability will attach
to remarks made based on their (1) implications directly to the officers and stockholders
and (2) the collateral circumstances when remarks
were uttered 6. Second ULP – “Yellow Dog’ Condition
• Test of Interference or Coercion – whether the ER • Contract whereby an EE agrees that during the
has engaged in conduct which may reasonably period of his employment he will not form, become
tend to interfere with the free exercise of EEs’ a member, or assist any labor union
rights; certainty is not required
7. Third ULP – Contracting Out
5.8. Mass Layoff Amounting to ULP • Contracting out of functions being performed by
• Fabricating loss to justify mass layoff in the guise union members should IRC in the EE’s exercise of
of capital reduction efforts is ULP their right to self-organize
• Contracting out, in itself, is not ULP; it is the ILL
5.9. Lockout or Closure Amounting to ULP INTENTION that makes it so
• A lockout, whether actual or threatened, as means • Not ULP – legitimate business reasons or need to
of dissuading EEs from exercising their rights reduce costs
• Evidence must establish that ER’s purpose was to
interfere 7.1. Contracting Out Restricted by CBA
• Not ULP – honest closing of business • Contracting out when there is an assurance of
security of tenure during the lifetime of the CBA is
5.9a. Closure, a Subterfuge ULP
• Closing the business to defeat union activities
• Threats of discharge and closure made by 7.2. Runway Shop
supervisors is ULP if ER tolerates such acts • Business relocation animated by anti-union
• ER bears burden of showing dismissal/closure animus (ill will) or calculated to escape union labor
was for a just cause regulations
• Clear and convincing evidence of imminent
economic reversals is required 8. Fourth ULP – Company-Domination of Union; Forms
• Act need not be entirely be motivated by union’s a. Initiation of the company union idea (outright
activities; ULP even if the discrimination was only formation, outright ER demand or influence,
a contributing factor managerially motivated formation)
5.9b. Sale in Bad Faith b. Financial support to the union (defraying union
• Simulated sales to get rid of EEs who are union expenses, paying attorney’s fees who drafted
members CBL of union)
• Both VENDOR and VENDEE will be liable c. Employer encouragement and assistance
(recognition of EBR without proper determination)
d. Supervisory assistance (coercing membership
5.9c. Assumption of Obligations by New Company
under threats of dismissal)
a. New company organized as an attempt to relieve
consequences of present litigation
9. Fifth ULP – Discrimination
• Freedom to contract is given primacy over dissolved corporation; absorbed EEs will be
Freedom to self-organize required to join union as condition of continued
employment
9.10c. Advantages and Disadvantages of Closed-Shop
Agreement 9.10f. Valid Dismissal Because of Application of Union
• Advantages Security Clause
o Strengthens bargaining power of Labor • USCs in CBAs, if freely and voluntarily entered
Organizations into, are valid and binding
o Prevents non-union members from • Not ULP – dismissal of an EE pursuant to a union’s
sharing in benefits without sharing with demand in accordance with a union security
obligations agreement
o Prevents weakening of Labor • Union members are bound to closed-shop
Organizations by discrimination against agreements even when there is lack of knowledge
union members • Union members have the right to disaffiliate from
o Eliminates the lowering of standards their union BUT must suffer the consequences of
caused by competition with nonunion their separation from the union under the security
workers clause of the CBA
o Enables labor organizations to
effectively enforce CBAs 9.10g. Dismissal Pursuant to a Closed-Shop Clause Must
o Facilitates collection of dues and Clearly Appear in the Contract
enforcement of union rules • Union shop provisions are strictly construed
o Creates harmonious relations between against the existence of a union shop
ER and EEs • Should not be extended beyond the explicit
• Disadvantages coverage of their terms
o Monopolistic domination of employment
by labor organizations 9.10h. Due Process Required in Enforcing Union Security
o Interferers with the freedom of contract Clause; Intra-union Matters becomes Termination Dispute
and personal liberty of the individual with ER
worker • USCs in CBAs may be validly enforced and
o Compels ERs to discharge all nonunion dismissal pursuant thereto are valid, BUT only
workers regardless of efficiency, length when it does not erode the fundamental
of service, etc. requirement of due process
o Facilitates the use of Los by • Issue of expulsion of union officers (intra-union
unscrupulous union leaders for unlawful dispute) is converted into a termination dispute
purposes when the ER dismisses said officers without the
o Denies nonunion workers equal benefit of a separate notice and hearing; ER incurs
opportunity liability
o Enables union to charge exorbitant dues
and fees 9.10i. Liability of Union to Pay Wages and Fringe Benefits of
Illegally Dismissed EEs
9.10d. “Right to Work” Laws • If union demands ER to dismiss an EE under the
• “Right to Work” laws – prohibition on agreements threat of filing notice of strike due to ULP, and EE
requiring membership in a labor organization is later on deemed illegally dismissed, union shall
• In US – membership as a condition of employment be liable to pay wages and benefits that EE failed
is whittled down to its financial core; closed shop to receive
or union shop contracts are outlawed in 20 states
• Primacy on individual’s right to work over the rights 9.10j. ER in Good Faith Not Liable
of unions; recognizes EE’s right to not organize
and engage in union activities 9.11. Exemption from Compulsory Membership
• PH does not follow this rule e. Religious objectors
f. Members of minority unions – “closed shop”
9.10e. Enforcement of Union Security Clause upon provisions not applied to those already in the
Corporate Merger service at the time of its execution unless clearly
• Union Shop Clause in CBA in surviving and expressly stated; closed-shop clauses
corporation applied to absorbed EEs from intended to authorize dismissal of those EEs
belonging to another labor organization are null 14. Relief in ULP Cases
and void a. Cease and Desist Order
g. Confidential EEs b. Affirmative Order
h. EEs expressly excluded by CBA stipulation c. Order to Bargain
d. Disestablishment
9.12. Agency Fee Instead of Union Membership
• Alternative to compulsory union membership is the 14.1. Cease and Desist Order
collection of agency fee • Order requiring ER to cease and desist from such
• EEs benefiting from CBA may be required to pay ULP and take such affirmative action as will
agency fee effectuate the policies of the Act (e.g.
• Written authorization from the nonunion EEs is not reinstatement)
required • To support a cease and desist order
• Legal bases of union’s right to collect agency fees o Record must show that the restrained
is quasi-contractual – nonunion EEs may not misconduct is an issue in the case
unjustly enrich themselves by benefiting from o There was a finding of fact of said
employment conditions negotiated by the misconduct
bargaining unit o Such finding was supported by evidence
• Injunction must be confined to specific act/s
9.13. Possible Effect of the Philippine Competition Law
14.2. Affirmative Order
10. Sixth ULP – Discrimination Because of Testimony • Court has power not only to issue negative or
• By protecting the EEs right to testify, the law prohibitive orders (cease and desist) but also
shields the workers’ right to self-organization from affirmative or positive orders (reinstatement,
indirect assault by the ER payment of back wages, dismiss new hires to
• ULP – reprisal against a testifying EE violates the make room for returning EE, etc.)
right to engage in concerted activity, a right
included in the right to self-organize 14.3. Order to Bargain; Mandated CBA
• Concerted activity does not require several • Affirmative order to compel ER to bargain with the
persons acting in unison – an EE acting alone bargaining agent
pursuing a group interest deemed doing a • Imposing a CBA upon ERs who refuse to bargain
concerted activity
14.4. Disestablishment
10.1. Refusal to Testify • Court orders ER to withdraw all recognition and
• ER retaliates against an EE who refuses to testify disestablish the dominated labor union
in favor of the ER
15. ULP not Subject to Compromise
10.2. Labor Standards Violation, if Coupled with Retaliation, • Impressed with public interest so labor contracts
May Validate a Strike must yield to common good
• Not ULP – labor standards violation but ER does
not retaliate to EEs who reported the situation 16. ULP in a Given Period Should be Included in Single
• ULP – if ER retaliates for EEs’ act of reporting; Charge
strikable • Charges filed by EEs should include all the acts of
ULP committed against any and all of the union
11. Seventh ULP – Violation of the Duty to Bargain members during a given period
• Splitting of action to harass ER with subsequent
12. Eight ULP – Paid Negotiation charges is not allowed
• ER pays the union or any of its officers any
negotiation fee or attorney’s fee as part of 17. ER’s Responsibility for ULP Acts by Subordinate
settlement in collective bargaining or any labor Officials
dispute • If the ER has authorizes/ratifies such acts – ER is
liable even if not actual actor
13. Ninth ULP – Violation of the CBA • If authorization/ratification cannot be proven,
• Noncompliance with the agreement amounts to consider the following
ULP; violation must be “gross” o ER’s knowledge of his official’s improper
acts (and failure to prevent)
• Contract executed upon request of ER or EBR • ER’s refusal to CB with majority representative is
incorporating the agreement reached after deemed ULP
negotiations as to terms and conditions of ENT • If no designated majority yet - subsequent
• General code covering whole employment appearance of properly designated majority rep
relationship and prescribes rights and duties of may oblige ER to negotiate with the proper union
parties despite commitments to the now minority
representative
1.2. Rationale • ER has no duty to bargain collectively if there is
• Direct government regulation hits only at extremes pending issue regarding majority status
• ER-EEs still most knowledgeable on matter most • ULP for Union – staging a strike to compel
vital to both parties negotiations when there is a legitimate issue as to
which union is the legitimate representative
1.3. Strength of the Collective Bargaining Method
• CB provides an orderly system through which 5. When Bargaining Should Begin
demands of parties may be understood, • Certification Year – 12 months following the
negotiated, and possibly, satisfied certification of EBR
• Certified union enjoys irrefutable presumption of
2. Emergence of Collective Bargaining majority status for 1 year
• Presumption becomes rebuttable after
2.1. Originator certification period
• Chartered local – can file reqs. For independent • Mere preparatory act for new union for CE is NOT
union by filing requirements for the latter disloyalty
o Disaffiliation without additional reqs. = o Otherwise, you’ll never get another
loss of legal personality union to replace current EBR
• CBA not enough to override constitutionally • Non-compliance with union security clause for
protected right to self-organization religious grounds I valid
• Difference between union and workers’ o EE cannot be dismissed
association o They may also form their OWN union
o EER not required for WA; only requires • When legal personality acquired
sharing of same interest o ILO – issuance for certificate of
o Right to choose whether to form LU or registration
WA belongs to workers o Chartered local – issuance of charter
o Even EEs with definite ERs can form certificate
WA
ANNEX II
TABLES
Apprenticeship Learnership
At least 15 y/o Same
Vocational aptitude
3-6 mos. Max. 3 mos.
Skilled (highly technical) Semi-skilled/other industries
Failure to comply – becomes regular EE
Probationary Regular
Max. 6 mos. 2 ways to be regular:
Standards for regularization communicated at time of 1. Nature of work (UNOD to UTOB of ER)
engagement 2. Length of service (1 year, continuous or broken; lasts
until activity subsists)
Security of tenure during probationary period – removal for just Security of tenure:
or authorized causes + failure to meet standards Removal only for just or authorized causes
XPNs:
1. Probationary
2. Seasonal
3. Fixed-term
Duration is:
1. Fixed period
2. Day certain
OR
Scope communicated at time of
engagement’