Questions and Answers

on the 2017 Bar Examinations

on Labor Relations Law

XI.
A.
The modes of determining the exclusive bargaining agent of the employees in a business
are: (a) voluntary recognition; (b) certification election; and (c) consent election.
Explain how they differ from one another.

SUGGESTED ANSWER:

Voluntary Recognition refers to the process by which a legitimate labor union

is recognized by the employer as the exclusive bargaining representative or agent in a
bargaining unit, reported with the Regional Office in accordance with Rule VII, Section
2 of these Rules. Certification Election or Consent Election refers to the process of
determining through secret ballot the sole and exclusive representative of the employees
in an appropriate bargaining unit for purposes of collective bargaining or negotiation. A
certification election is ordered by the Department, while a consent election is
voluntarily agreed upon by the parties, with or without the intervention by the
Department. (Rule I, Section 1, Book V, Rules to Implement the Labor Code)

B.
Marcel was the Vice President for Finance and Administration and a member of the
Board of Directors of Mercedes Corporation. He brought a complaint for illegal
suspension and illegal dismissal against Mercedes Corporation, which moved to dismiss
the complaint on the ground that the complaint pertained to the jurisdiction of the RTC
due to the controversy being intracorporate based on his positions in the corporation.
Marcel countered that he had only been removed as Vice President for Finance and
Administration, not as a member of the Board of Directors. He also argued that his
position was not listed as among the corporate offices in Mercedes Corporation’s by-law.

Is the argument of Marcel correct? Explain your answer.

SUGGESTED ANSWER:

Marcel’s contention is correct. It is settled in Matling Industrial and Commercial

Corporation v. Coros, G.R. No. 157802, 13 October 2010, cited in Marc II Marketing Inc.
v. Joson, G.R. No. 171993, December 12, 2011, where it held, thus:

“Conformably with Section 25, a position must be expressly mentioned in the

[b]y-[l]aws in order to be considered as a corporate office. Thus, the creation of an office
pursuant to or under a [b]y-[l]aw enabling provision is not enough to make a position a
corporate office. [In] Guerrea v. Lezama [citation omitted] the first ruling on the matter,
held that the only officers of a corporation were those given that character either by the
Corporation Code or by the [b]y-[l]aws; the rest of the corporate officers could be
considered only as employees or subordinate officials. x x x”
 It is relevant to state in this connection that the SEC, the primary agency
administering the Corporation Code, adopted a similar interpretation of Section 25 of
the Corporation Code in its Opinion dated November 25, 1993 [citation omitted], to wit:

“Thus, pursuant to the above provision (Section 25 of the Corporation Code),

whoever are the corporate officers enumerated in the by-laws are the exclusive Officers
of the corporation and the Board has no power to create other Offices without amending
first the corporate [b]y-laws. However, the Board may create appointive positions other
than the positions of corporate Officers, but the persons occupying such positions are
not considered as corporate officers within the meaning of Section 25 of the Corporation
Code and are not empowered to exercise the functions of the corporate Officers, except
those functions lawfully delegated to them. Their functions and duties are to be
determined by the Board of Directors/Trustees. (Matling Industrial and Commercial
Corporation v. Coros, supra at 26-27) [Emphasis supplied.]”

With the given circumstances and in conformity with Matling Industrial and
Commercial Corporation v. Coros, Marcel was not a corporate officer of Mercedes
Corporation because his position as Vice President for Finance and Administration was
not specifically mentioned in the roster of corporate officers in its corporate by-laws.

C.
State the jurisdiction of the Voluntary Arbitrator, or Panel of Voluntary Arbitrators in
labor disputes?

SUGGESTED ANSWER:

The voluntary arbitrator or panel of voluntary arbitrators shall have exclusive

and original jurisdiction to hear and decide all unresolved grievances arising from:

1. The implementation or interpretation of the collective bargaining agreements;

(Article 274 [261], Labor Code, Section 4, Rule XIX, Book V, Omnibus Rules
Implementing the Labor Code);
2. The interpretation or enforcement of company personnel policies which remain
unresolved after exhaustion of the grievance procedure; (Article 274 [261], Labor
Code, Section 4, Rule XIX, Book V, Omnibus Rules Implementing the Labor
Code);
3. Wage distortion issues arising from the application of any wage orders in
organized establishments; (par. 4, Article 124, Labor Code, Section 4, Rule XIX,
Book V, Omnibus Rules Implementing the Labor Code)
4. The interpretation and implementation of the productivity incentive programs
under RA 6971;
5. Upon agreement of the parties, shall also hear and decide all other labor disputes
including unfair labor practices and bargaining deadlocks. (Article 275. [262],
Labor Code, Section 4, Rule XIX, Book V, Omnibus Rules Implementing the
Labor Code);
 6. Violations of a Collective Bargaining Agreement, except those which are gross in
character, shall no longer be treated as unfair labor practice and shall be resolved
as grievances under the Collective Bargaining Agreement; (Article 274. [261],
Labor Code)

XIII
A.
Given that the liability for an illegal strike is individual, not collective, state when the
participating union officers and members may be terminated from employment because
of the illegal strike. Explain your answer.

SUGGESTED ANSWER:

The following are the effects of participation in an illegal strike and

commission of illegal acts during strike:

1. Any union officer who knowingly participates in an illegal strike; and

2. Any worker or union officer who knowingly participates in the commission of
illegal acts during a strike may be declared to have lost his employment status;
(Third paragraph, Article 279 (a) [264 (a)], Labor Code)

B.
A sympathetic strike is stoppage of work to make common cause with other strikers in
another establishment or business. Is the sympathetic strike valid? Explain your answer.

SUGGESTED ANSWER:

The illegal stoppage of work by way of sympathetic strike has been

settled in the case of Biflex Phils. Labor Union (NAFLU) v. Filflex Industrial and
Manufacturing Cororation, G.R. No. 155679, 19 December 2006, where it was ruled that
stoppage of work due to welga ng bayan is in the nature of a general strike, an extended
sympathy strike. It affects numerous employers including those who do not have a
dispute with their employees regarding their terms and conditions of employment.
Employees who have no labor dispute with their employer but who, on a day they are
scheduled to work, refuse to work and instead join a welga ng bayan commit an illegal
work stoppage.

Even if petitioners joining the welga ng bayan were considered merely as an

exercise of their freedom of expression, freedom of assembly or freedom to petition the
government for redress of grievances, the exercise of such rights is not absolute. For the
protection of other significant state interests such as the right of enterprises to
reasonable returns on investments, and to expansion and growth enshrined in the 1987
Constitution must also be considered, otherwise, oppression or self-destruction of
capital in order to promote the interests of labor would be sanctioned. And it would give
imprimatur to workers joining demonstrations/rallies even before affording the
employer an opportunity to make the necessary arrangements to counteract the
implications of the work stoppage on the business, and ignore the novel principle of
shared responsibility between workers and employers aimed at fostering industrial
peace.

There being no showing that petitioners notified respondents of their intention,

or that they were allowed by respondents to join the welga ng bayan on October 24,
1990, their work stoppage is beyond legal protection.

C.
Due to business recession, Ballistic Company retrenched a part of its workforce.
Opposing the retrenchment, some of the affected employees staged a strike. Eventually,
the retrenchment was found to be justified, and the strike was declared illegal; hence,
the leaders of the strike, including the retrenched employees, were declared to have lost
their employment status.

Are the striking retrenched employees still entitled to separation pay under Sec. 298
(283) of the Labor Code despite the illegality of their strike? Explain your answer.

SUGGESTED ANSWER:

The strikers including the union officers should be paid their separation pay by
virtue of retrenchment notwithstanding the illegal strike was declared illegal. The issue
on entitlement to separation pay due to authorized cause and the ground for
termination due to knowingly participating in illegal strike are distinct and different.

XIV.
A
Pursuant to his power under Sec. 278(g) (263(g)) of the Labor Code, the Secretary of
Labor assumed jurisdiction over the 3-day old strike in Armor Steel Plates, Inc., one of
the country’s bigger manufacturers of steel plates, and ordered all the striking
employees to return to work. The striking employees ignored the order to return to
work.

What conditions may justify the Secretary of Labor to assume jurisdiction?

SUGGESTED ANSWER:

Pursuant to Article 263 (g) [now 278 (g)], when a labor dispute causes or is
likely to cause a strike or lockout in an industry indispensable to the
national interest, the Secretary of Labor and Employment may assume jurisdiction
over the dispute and decide it or certify the same to the National Labor Relations
Commission (NLRC) for compulsory arbitration. (Section 1, Operational Guidelines of
Department Order No. 40-G-03, Series of 2010, dated February 24, 2011)

For a valid exercise of the assumption of jurisdiction authority, any of

the following conditions must be present:
 a. Both parties have requested the Secretary of Labor and Employment to assume
jurisdiction over the labor dispute; or
b. After a conference called by the Office of the Secretary of Labor and Employment
on the propriety of the issuance of the Assumption or Certification Order, motu
proprio or upon a request or petition by either party to the labor dispute. In the
said conference. the parties shall also be encouraged to amicably settle the
dispute. (Section 2, Operational Guidelines of Department Order No. 40-G-03,
Series of 2010, dated February 24, 2011)

NOTE: The foregoing answer can be found in pages 468-487 of the book entitled
Principles and Cases Labor Relations, First Edition 2016, by Atty. Voltaire T. Duano.
The topic on the assumption of jurisdiction has been time and again the subject matter
of bar questions, more specifically during the 2012, 2004 and 1996 Bar Examinations.

B.
What are the consequences of the assumption of jurisdiction by the Secretary of Labor,
and of the disobedience to the return to work? Explain your answer.

SUGGESTED ANSWER:

The consequences of assumption of jurisdiction are as follows:

a. If a strike or lockout has not taken place, the parties are enjoined to conduct any
untoward action that may lead to a strike or lockout;
b. if a strike or lockout has already taken place, all striking and locked out workers
shall, within twenty-four (24) hours from receipt of an Assumption or
Certification Order, immediately return to work and the employer shall
immediately resume operations and readmit all workers under the same terms
and conditions prevailing before the strike;
c. At any point in time, the parties are not prevented from submitting the dispute to
Voluntary Arbitration with the Secretary of Labor and Employment or his/her
duly authorized representative as Voluntary Arbitrator or Panel of Voluntary
Arbitrators. (Section 3, Operational Guidelines of Department Order No. 40-G-
03, Series of 2010, dated February 24, 2011)

While the consequence of disobedience to return to work has been ruled in

the case of Manila Hotel Employees Association v. Manila Hotel Corporation, G.R. No.
154591, March 5, 2007. In holding that defiance of the assumption order or a return-to
work order by a striking employee, whether a union officer or a member, is an illegal act
and, therefore, a valid ground for loss of employment status. The High Court explained:

The law explicitly prohibits such acts.

ART. 263. STRIKES, PICKETING, AND LOCKOUTS x x x

ART. 264. PROHIBITED ACTIVITIES x x x

(a) x x x
 More to the point, the Court has consistently ruled in a long line of cases spanning
several decades that once the SOLE assumes jurisdiction over a labor dispute, such
jurisdiction should not be interfered with by the application of the coercive processes of
a strike or lockout. Defiance of the assumption order or a return-to work order by a
striking employee, whether a union officer or a member, is an illegal act and, therefore,
a valid ground for loss of employment status. (Grand Boulevard Hotel v. Genuine Labor
Organization of Workers in Hotel, Restaurant and Allied Industries (GLOWHRAIN),
G.R. No. 153664, 18 July 2003, 406 SCRA 688, 710; Telefunken Semiconductors
Employees Union-FFW v. Court of Appeals, G.R. Nos. 143013-14, 18 December 2000,
348 SCRA 565, 582; Federation of Free Workers v. Inciong, G.R. No. 49983, 20 April
1982, 208 SCRA 157, 165)
 Questions and Answers
on the 2018 Bar Examinations
on Labor Relations Law

II.
A.

Nayon Federation issued a charter certificate creating a rank-and-file Neuman

Employees Union. On the same day, New Neuman Employees filed a petition for
certification election with the Department of Labor and Employment (DOLE) Regional
Office, attaching the appropriate charter certificate.

The employer, Neuman Corporation, filed a motion to dismiss the petition for lack of
legal personality on the part of the petitioner union. Should the motion be granted?

SUGGESTED ANSWER:

The motion should be denied. For purposes of filing a petition for certification
election, New Neuman Employees has legal personality from the time it was issued with
a charter certificate. This clear under the Labor Code, which provides, The chapter shall
acquire legal personality only for purposes of filing a petition for certification election
from the date it was issued a charter certificate. (Article 241 [234-A], As inserted by
Section 2, Republic Act No. 9481 which lapsed into law on May 25, 2007 and became
effective on June 14, 2007)

NOTE: The foregoing answer can be found in page 218 of the book entitled Principles
and Cases Labor Relations, Second Edition 2018, by Atty. Voltaire T. Duano. This was
the first time that this question was asked in the bar examinations.

B.
The employer likewise filed a petition for cancellation of union registration against New
Neuman Employees Union, alleging that Nayon Federation already had a chartered
local rank-and-file union, Neuman Employees Union, pertaining to the same bargaining
unit within the establishment. Should the petition for cancellation prosper?

SUGGESTED ANSWER:

Under Article 247 of the Labor Code, the following are the relevant grounds
for cancellation of union registration:

a. Misrepresentation, false statement or fraud in connection with the adoption or

ratification of the constitution and by-laws or amendments thereto, the minutes
of ratification, and the list of members who took part in the ratification;
b. Misrepresentation, false statements or fraud in connection with the election of
officers, minutes of the election of officers, and the list of voters;
c. Voluntary dissolution by the members.
 Unless the employer can prove that any of the foregoing grounds are present the
petition for cancellation will not prosper.

NOTE: The foregoing answer can be found in page 223 of the book entitled Principles
and Cases Labor Relations, Second Edition 2018, by Atty. Voltaire T. Duano. This was
the first time that this question was asked in the bar examinations.

III.
A.
Due to his employer’s dire financial situation, Nicanor was prevailed upon by his
employer to voluntarily resign. In exchange, he demanded payment of salary
differentials, 13th month pay, and financial assistance, as promised by his employer.
Management promised to pay him as soon as it is able to pay off all retrenched rank-
and-file employees. Five years later, and before management was able to pay Nicanor
the amount promised to him, Nicanor died of a heart attack. His widow, Norie, filed a
money claim against the company before the National Labor Relations Commission
(NLRC), including interest on the amount of the unpaid claim. She also claimed
additional damages arguing that the supposed resignation letter was obtained from her
spouse through undue pressure and influence. The employer filed a motion to dismiss
on the ground that (A) the NLRC did not have jurisdiction over money claims, and (B)
the action has prescribed.

Does the NLRC have jurisdiction to award money claims including interest on the
amount unpaid?

SUGGESTED ANSWER:

Jurisdiction will depend on the amount being claimed by Nicanor’s surviving

spouse. If the amount exceeds Five Thousand Pesos (PhP5,000.00) as provided in
Article 224 (a [6]) of the Labor Code then jurisdiction belongs to the Arbitration Branch
of the NLRC. However, if the amount did not exceed Five Thousand Pesos
(PhP5,000.00) and then jurisdiction belongs to the Regional Director under Article 129
of the Labor Code involving recovery of wages, simple money claims and other benefits.
Either of the said quasi-judicial body can award interest in the concept of actual and
compensatory damages in accordance. The award of interest in money claim was
explained in Limlingan v. Asian Institute Management, Inc., G.R. No. 220481, February
17, 2016, that the rate of interest in the concept of actual and compensatory
damages as well as its accrual are as follows:

1. When the obligation is breached, and it consists in the payment of a sum of

money, i.e., a loan or forbearance of money, the interest due should be that which
may have been stipulated in writing. Furthermore, the interest due shall itself
earn legal interest from the time it is judicially demanded. In the absence of
stipulation, the rate of interest shall be 6% per annum to be computed from
default, i.e., from judicial or extrajudicial demand under and subject to the
provisions of Article 1169 of the Civil Code.
 2. When an obligation, not constituting a loan or forbearance of money, is breached,
an interest on the amount of damages awarded may be imposed at the discretion
of the court at the rate of 6% per annum. No interest, however, shall be adjudged
on unliquidated claims or damages, except when or until the demand can be
established with reasonable certainty. Accordingly, where the demand is
established with reasonable certainty, the interest shall begin to run from the
time the claim is made judicially or extrajudicially (Art. 1169, Civil Code), but
when such certainty cannot be so reasonably established at the time the demand
is made, the interest shall begin to run only from the date the judgment of the
court is made (at which time the quantification of damages may be deemed to
have been reasonably ascertained). The actual base for the computation of legal
interest shall, in any case, be on the amount finally adjudged.
3. When the judgment of the court awarding a sum of money becomes final and
executory, the rate of legal interest, whether the case falls under paragraph 1 or
paragraph 2, above, shall be 6% per annum from such finality until its
satisfaction, this interim period being deemed to be by then an equivalent to a
forbearance of credit.

NOTE: The foregoing answer can be found in page 26 of the book entitled Principles
and Cases Labor Relations, Second Edition 2018, by Atty. Voltaire T. Duano and in
pages 589-590 of the book entitled Principles and Cases Labor Standards and Social
Legislation, Second Edition 2018, by Atty. Voltaire T. Duano. Questions involving the
same subject matter were given during the 2011 and 2016 (on award of interest in
money claim) Bar Examinations.

B.
Assuming that the NLRC has jurisdiction, has the action prescribed? (2.5%)

SUGGESTED ANSWER:

The action has not prescribed. This is because Nicanor’s surviving spouse’s cause
of action will accrue upon the categorical denial of the claim. In this case, there was
demand for its payment, however, the management had promsied to pay as soon as it is
able to pay off all retrenched rank-and-file employees. However, it is was only after five
(5) years that the management was able to pay. Moreover, there was no denial of the
claim. Therefore, prescription did not set in. In the Degamo v. Avantgarde Shipping
Corp., G.R. No. 154460, November 22, 2005 and Serrano v. Court of Appeals, G.R. No.
139420, August 15, 2001, following cases, the Supreme Court explained the accrual of a
cause of action under Article 306 [291].

NOTE: The foregoing answer can be found in pages 943-946 of the book entitled
Principles and Cases Labor Relations, Second Edition 2018, by Atty. Voltaire T.
Duano. Questions involving the same subject matter was given during the 2010 Bar
Examination.

C.
May Nicanor’s spouse successfully claim additional damages as a result of the alleged
undue pressure and influence?

SUGGESTED ANSWER:

Yes, Nicanor’s spouse can successfully claim additional damages as a result of the
alleged undue pressure and influence. This is provided under Article 224 (a [4] of the
Labor Code which provides for claims for actual, moral, exemplary and other forms of
damages arising from employer-employee relationship within the jurisdictional
authority of the Arbitration Branch of the NLRC.

In the alternative, it can be argued that Nicanor’s spouse cannot successfully

claim additional damages because it is the jurisdictional authority of the Arbitration
Branch of the NLRC. The employer-employee relationship is only incidental and the
cause of action arises from other sources like torts and damages. Therefore, jurisdiction
belongs to the regular courts.

NOTE: The foregoing answer can be found in pages 26, 32-38 of the book entitled
Principles and Cases Labor Relations, Second Edition 2018, by Atty. Voltaire T.
Duano. Questions involving the same subject matter were given during the 2016, 199
and 1995 Bar Examinations.

IV.
A.
Natasha Shoe Company adopted an organizational streamlining program that resulted
in the retrenchment of 550 employees in its main plant. After having been paid their
separation benefits, the retrenched workers demanded payment of retirement benefits
under a CBA between their union and management Natasha Shoe Company denied the
workers’ demand.

What is the most procedurally peaceful means to resolve this dispute? (2.5%)

SUGGESTED ANSWER:

Since this is a money claim involving the interpretation and implementation of

the CBA, the retrenched workers can refer the matter to the grievance machinery and if
it remained unresolved within seven (7) days from the date of its submission the same
shall be automatically referred to the voluntary arbitration prescribed in the CBA.

In the alternative it can be argued, that since this is a dispute between the
retrenched workers and the employer the same cannot be a subject matter of grievance
and voluntary arbitration. This is because only disputes between the union and the
company as ruled in Tabique v. International Copra Export Corporation, G. R. No.
183335, December 23, 2009, shall be referred to grievance machinery or voluntary
arbitrators. Thus, the dispute should be resolved by way of mandatory conciliation-
mediation in accordance with Article 234 of the Labor Code.
NOTE: The foregoing answer can be found in pages 193-195, 436, 433-442 of the book
entitled Principles and Cases Labor Relations, Second Edition 2018, by Atty. Voltaire
T. Duano. Questions involving the same subject matter were given during the 2017,
2010, 2008, 2001, 1997 and 1995 Bar Examinations.

B.
Can the workers claim both separation pay and retirement benefits. (2.5%)

SUGGESTED ANSWER:

Yes, the workers can claim both separation pay and retirement benefits. This was
settled rule in the case of Goodyear v. Marina Angus, G.R. No. 185499, 14 November
2014 where it was ruled that in the absence of an express or implied prohibition against
it, collection of both retirement benefits and separation pay upon severance from
employment is allowed. This is grounded on the social justice policy that doubts should
always be resolved in favor of labor rights. (Aquino v. National Labor Relations
Commission, G.R. No. 87653, February 11, 1992)

V.
A.
Nelda worked as a chambermaid in Hotel Neverland with a basic wage of PhP560.00 for
an eight-hour workday. On Good Friday, she worked for one (1) hour from 10:00 PM to
11:00 PM. Her employer paid her only PhP480 for each 8-hour workday, and PhP70.00
for work done on Good Friday. She sued for underpayment of wages and non-payment
of holiday pay and night shit differential for working on a Good Friday. Hotel Neverland
denied the alleged underpayment, arguing that based on long-standing unwritten
tradition, food and lodging costs were partially shouldered by the employer and partially
paid for by the employee through salary deduction. According to the employer, such
valid deduction caused the payment of Nelda’s wage to be below the prescribed minim
m. The hotel also claimed that she was not entitled to holiday pay and night shift
differential pay hotel workers have to work on holidays and may be be assigned to work
at night.

Does the hotel have valid legal grounds to deduct food and lodging costs from Nelda's
basis salary?

SUGGESTED ANSWER:

As held in Mabeza v. National Labor Relations Commission, G.R. No. 118506,

April 18, 1997: Granting that meals and lodging were provided and indeed constituted
facilities, such facilities could not be deducted without the employer complying first with
certain legal requirements. Without satisfying these requirements, the employer simply
cannot deduct the value from the employee’s wages. First, proof must be shown that
such facilities are customarily furnished by the trade. Second, the provision of
deductible facilities must be voluntarily accepted in writing by the employee. Finally,
facilities must be charged at fair and reasonable value. (Labor Code, Art. 97 [f])
Applying the above, unless the hotel can comply with the legal requirements it has no
valid legal grounds to deduct food and lodging costs from Nelda's basis salary.

NOTE: The foregoing answer can be found in page 502 of the book entitled Principles
and Cases Labor Standards and Social Legislation, Second Edition 2018, by Atty.
Voltaire T. Duano. Questions involving the same subject matter were given during the
2013 and 2010 Bar Examinations.

B.
Applying labor standards law, how much should Nelda be paid for work done Good
Friday? Show the computation in your test booklet and encircle your final answer.
(2.5%)

SUGGESTED ANSWER:

It can be argued:

The rule in order to be paid regular holiday like two successive holidays provides
as follows, Where there are two (2) successive regular holidays, like Holy Thursday and
Good Friday, an employee may not be paid for both holidays if he absents himself from
work on the day immediately preceding the first holiday, unless he works on the first
holiday, in which case he is entitled to his holiday pay on the second holiday.(Section 10,
Rule IV, Book III, Rules to Implement the Labor Code)

Applying the above rule, unless Nelda had complied with the rules on absences
she is not entitled for her holiday pay for work done on Good Friday.
However, on the assumption that she complied with the rules Nelda should be paid as
follows: P560 x 200%=P1,120.00 or since he only worked for one hour the pay should
be as follows: 70 x 200% = P140.00

NOTE: The foregoing answer can be found in page 453 of the book entitled Principles
and Cases Labor Standards and Social Legislation, Second Edition 2018, by Atty.
Voltaire T. Duano. Questions involving the same subject matter was given during the
2013 and 2010 Bar Examinations.

VI.
A.
A certification election was conducted in Nation Manufacturing Corporation, whereby
55% of eligible voters in the bargaining unit cast their votes. The results were as follows:

Union Nana : 45votes

Union Nada : 40votes
Union Nara : 30votes
No Union : 80votes

Union Nana moved to be declared as the winner of the certification election.

Can Union Nana be declared as the winner?

SUGGESTED ANSWER:

Union Nana cannot be declared as the winner. This is because the said union did
not obtain the majority of the valid votes casts as provided under Article 268 of the
Labor Code.

NOTE: The foregoing answer can be found in pages 416-417 and 419of the book
entitled Principles and Cases Labor Relations, Second Edition 2018, by Atty. Voltaire
T. Duano. Questions involving the same subject matter were given during the 2014,
2009 Bar Examinations.

b) Assume that the eligibility of 30 voters was challenged during pre-election

conference. The ballots of the 30 challenged voters were placed inside an envelope
sealed by the DOLE Election Office. Considering the said envelope remains sealed, what
should be the next course of action with respect to the said challenged votes?

SUGGESTED ANSWER:

The procedure in the Challenge of Votes provides as follows:

The ballot of the voter who has been property challenged during the Pre-Election
conferences, shall be placed in an envelope which shall be sealed by the Election Officer
in the presence of the voter and the representatives of the contending unions. The
election Officer shall indicate on the envelope the voter’s name, the union challenging
the voter, and the ground for the challenged. The sealed envelope shall then be signed
by the Election Officer and the representatives of the contending unions. The Election
Officer shall note all challenges in the minutes of the election proceedings and shall have
custody of all envelopes containing the challenged votes. The envelopes shall be opened
and the question of eligibility shall be passed upon by the Mediator-Arbiter only if the
number of segregated votes will materially alter the results of the election. (Section 11,
Rule IX, Book V, Rules to Implement the Labor Code, as amended by Department Order
No. 40-F-03, Series of 2008 and renumbered by Department Order No. 40-I-15, Series
of 2015)
Applying the said procedure, if the number of segregated votes will materially alter the
results of the election the next course of action with respect to the said challenged votes
is to open the said envelopes and the question of eligibility shall be passed upon by the
Mediator-Arbiter.

NOTE: The foregoing answer can be found in page 402 of the book entitled Principles
and Cases Labor Relations, Second Edition 2018, by Atty. Voltaire T. Duano. This is
the first time that this type if question was asked in the Bar Examinations.

XIV.
A.
Nelson complained before the DOLE Regional Office about Needy Corporation's failure
to pay his wage increase amounting to PhP5,000.00 as mandated in a Wage Order
issued by the Regional Tripartite Wages and Productivity Board. Consequently, Nelson-
asked the DOLE to immediately issue an Order sustaining his money claim. To his
surprise, he received a notice from the DOLE to appear before the Regional Director for
purposes of conciliating the dispute between him and Needy Corporation. When
conciliation before the Regional Director the latter proceeded to direct both parties to
submit their respective position papers in relation to the dispute. Needy Corporation
argued, that since Nelson was willing to settle for 75% of his money claim during
conciliation proceedings, only a maximum of 75% of the said money claim may be
awarded to him.

Was DOLE’s action to conduct mandatory conciliation in light of Nelson’s complaint

valid?

SUGGESTED ANSWER:

Yes, the DOLE’s action to conduct mandatory conciliation is valid. This is

mandated by Article 234 of the Labor Code, except as provided in Title VII-A, Book V of
this Code, as amended, or as may be excepted by the Secretary of Labor and
Employment, all issues arising from labor and employment shall be subject to
mandatory conciliation-mediation.

NOTE: The foregoing answer can be found in pages 193-195 of the book entitled
Principles and Cases Labor Relations, Second Edition 2018. This was the first time that
a question of this nature was asked in the Bar Examinations.

B.
Should the Regional Director sustain Needy Corporation’s argument?

SUGGESTED ANSWER:

The Regional Director should not sustain Needy Corporation’s argument. This is
because under Article 239 of the Labor Cod, information and statements made at
conciliation proceedings shall be treated as privileged communication and shall not be
used as evidence in the Commission. Conciliators and similar officials shall not testify in
any court or body regarding any matters taken up at conciliation proceedings conducted
by them. Thus, Needy Corporation cannot raise the argument that Nelson was willing to
settle for 75% of his money claim during conciliation proceedings.

NOTE: The foregoing answer can be found in pages 239 of the book entitled Principles
and Cases Labor Relations, Second Edition 2018. Question involving the same subject
matter was given during the 2007 Bar Examination.

XV.
A.
Nexturn Corporation employed Nini and Nono, whose tasks involved directing and
supervising rank-and-file employees engaged in company operations. Nini and Nono are
required to ensure that such employees obey company rules and regulations, and
recommend to the company's Human Resources Department any required disciplinary
action against erring employees. In Nexturn Corporation, there are independent unions,
representing rank- and-file and supervisory employees, respectively.

May Nini and Nono join a union?

SUGGESTED ANSWER:

Yes, Nini and Nono can join a union. This is clearly allowed under Article 255 of
the Labor Code which provides in substance that supervisory employees may join, assist
or form separate collective bargaining units and/or legitimate labor organizations of
their own.

NOTE: The foregoing answer can be found in page 264 of the book entitled Principles
and Cases Labor Relations, Second Edition 2018. Question involving the same subject
matter was given during the 2017, 2010, 2004 and 1994 Bar Examinations.

B.
May the two unions be affiliated with the same Union Federation?

SUGGESTED ANSWER:

Yes, the two unions can be affiliated with the same Union Federation. This is
clearly allowed under Article 255 of the Labor Code which provides in substance that the
rank-and-file union and the supervisors’ union operating within the same establishment
may join the same federation or national union.

NOTE: The foregoing answer can be found in page 264 of the book entitled Principles
and Cases Labor Relations, Second Edition 2018. Question involving the same subject
matter was given during the 2017, 2010, 2004 and 1994 Bar Examinations.

XVI.
A.
Nagrab Union and Nagrab Corporation have an existing CBA which contains the
following provision: “New_employees within the coverage of the bargaining unit who
may be regularly employed shall become members of Nagrab Union. Membership in
good standing with the Nagrab Union is a requirement for continued employment with
Nagrab Corporation.” Nagrab Corporation subsequently acquired all the assets and
rights of Nuber Corporation and absorbed all of the latter’s employees. Nagrab Union
immediately demanded enforcement of the above-stated CBA provision with respect to
the absorbed employees. Nagrab Corporation refused on the ground that this should not
apply fo the absorbed employees who were former employees of another corporation
whose assets and rights it had acquired.
Was Nagrab Corporation correct in refusing to enforce the CBA 4 provision with respect
to the absorbed employees?

SUGGESTED ANSWER:

Nagrab Corporation was not correct in refusing to enforce the CBA provision with
respect to the absorbed employees. This is because it cannot invoke its merger with
another corporation as a valid ground to exempt its absorbed employees from the
coverage of a union shop clause contained in its existing Collective Bargaining
Agreement (CBA) with its own certified labor union. In BANK OF THE PHILIPPINE
ISLANDS V. BPI EMPLOYEES UNION-DAVAO CHAPTER-FEDERATION OF UNIONS
IN BPI UNIBANK, G.R. No. 164301, August 10, 2010, the High Court resolved the
question in this manner: At the outset, we should call to mind the spirit and the letter of
the Labor Code provisions on union security clauses, specifically Article 248 (e), which
states, x x x Nothing in this Code or in any other law shall stop the parties from
requiring membership in a recognized collective bargaining agent as a condition for
employment, except those employees who are already members of another union at the
time of the signing of the collective bargaining agreement. This case which involves the
application of a collective bargaining agreement with a union shop clause should be
resolved principally from the standpoint of the clear provisions of our labor laws, and
the express terms of the CBA in question, and not by inference from the general
consequence of the merger of corporations under the Corporation Code, which
obviously does not deal with and, therefore, is silent on the terms and conditions of
employment in corporations or juridical entities.

NOTE: The foregoing answer can be found in page 305-308 of the book entitled
Principles and Cases Labor Relations, Second Edition 2018. Question involving the
same subject matter was given during the 2011 Bar Examination.

B.
May a newly-regularized employee of Nagrab Corporation (who is not-part of the
absorbed employees) refuse to join Nagrab Union? How would you advise the human
resources manager of Nagrab Corporation to proceed?

SUGGESTED ANSWER:

The newly-regularized employee of Nagrab Corporation (who is not-part of the

absorbed employees) cannot refuse to join Nagrab Union in view of the union security
clause provision of the CBA. While the right to join includes the right not to join,
however, the exception is the UNION SECURITY CLAUSE where it imposes upon
employees the obligation to acquire or retain union membership as a condition affecting
employment. Thus, I will advise the human resources manager of Nagrab Corporation to
comply with the provision of the CAB stating that : “New_employees within the
coverage of the bargaining unit who may be regularly employed shall become members
of Nagrab Union.
NOTE: The foregoing answer can be found in page 299, 303-308 of the book entitled
Principles and Cases Labor Relations, Second Edition 2018. Questions involving the
same subject matter were given during the 2005, 2011 and 1997 Bar Examinations.

XVII.
A.
Upon compliance with the legal requirements on the conduct of a strike, Navarra Union
staged a strike against Newfound Corporation on account of a collective bargaining
deadlock. During the strike, some members of Navarra Union broke the windows and
punctured the tires of the company-owned buses. he Secretary of Labor and
Employment assumed jurisdiction over the dispute.

Should all striking employees be admitted back to work upon the assumption of
jurisdiction by the Secretary of Labor and Employment? Will these include striking
employees who damaged company properties?

SUGGESTED ANSWER:

All striking employees be admitted back to work and including striking

employees who damaged company properties. The effect of assumption of jurisdiction of
the Secretary of Labor is clear under Article 278 (g) which provides in substance that
such assumption shall have the effect of automatically enjoining the intended or
impending strike or lockout as specified in the assumption or certification order. If one
has already taken place at the time of assumption or certification, all striking or locked
out employees shall immediately return-to-work and the employer shall immediately
resume operations and readmit all workers under the same terms and conditions
prevailing before the strike or lockout.

NOTE: The foregoing answer can be found in page 478 of the book entitled Principles
and Cases Labor Relations, Second Edition 2018. Questions involving the same subject
matter were given during the 2003 and 1997 Bar Examinations.

B.
May the company, readmit strikers only by restoring them to the payroll?

SUGGESTED ANSWER:

The company may not readmit strikers by restoring them to the payroll. The
phrase “under the same terms and conditions” found in Article 278 (g) [263 (g)] of the
Labor Code was interpreted by the Supreme Court in the case of the University of
Immaculate Concepcion, Inc. v. Secretary of Labor, G.R. No. 151379, January 14, 2005
as follows:
With respect to the Secretary’s Order allowing payroll reinstatement instead of actual
reinstatement for the individual respondents herein, an amendment to the previous
Orders issued by her office, the same is usually not allowed. Article 263(g) of the Labor
Code aforementioned states that all workers must immediately return to work and all
employers must readmit all of them under the same terms and conditions prevailing
before the strike or lockout. The phrase “under the same terms and conditions” makes it
clear that the norm is actual reinstatement. This is consistent with the idea that any
work stoppage or slowdown in that particular industry can be detrimental to the
national interest.

Clearly, reinstatement should be actual and not payroll reinstatement.

NOTE: The foregoing answer can be found in page 496 of the book entitled Principles
and Cases Labor Relations, Second Edition 2018. This is the first time that a question
of this nature was asked in the Bar Examinations.

XX.
A.
In Northern Lights Corporation, union members Nad, Ned and Nod sought permission
from the company to distribute flyers with respect to a weekend union activity. The
company HR manager granted the request through a text message sent to another union
member, Norlyn. While Nad, Ned, and Nod re distributing the flyers at the company
assembly plant, a Company supervisor barged in and demanded that they cease from
distributing the flyers, stating that the assembly line employees were trying to beat a
production deadline and were thoroughly distracted. Norlyn tried to show the HR
manager's text message authorizing flyer distribution during work hours, but the
supervisor brushed it aside. As a result, Nad, Ned, and Nod were suspended for violating
company rules on trespass and highly-limited union activities during work hours. The
Union filed an unfair labor practice (ULP) case before the NLRC for union
discrimination.

Will the ULP case filed by the Union prosper?

SUGGESTED ANSWER:

The ULP case filed by the Union will not prosper. This is because the act did not
constitute an act of interfering, restraining or coercing the said employees in the
exercise of their right to self-organization under Article 259 [a] of the Labor Code.

In T & T Shoplifters Corporation/Gin Queen Corporation v. T&T Shoplifters

Corporation/Gin Queen Corporation Workers Union, G.R. No. 191714, February 26,
2014 citing the case of Insular Life Assurance Co., Ltd. Employees Association – NATU
v. Insular Life Assurance Co., Ltd., (147 Phil. 194 [1971]) the Supreme Court had
occasion to lay down the test of whether an employer has interfered with and coerced
employees in the exercise of their right to self-organization, that is, whether the
employer has engaged in conduct which, it may reasonably be said, tends to interfere
with the free exercise of employees’ rights; and that it is not necessary that there be
direct evidence that any employee was in fact intimidated or coerced by statements of
threats of the employer if there is a reasonable inference that anti-union conduct of the
employer does have an adverse effect on self-organization and collective bargaining.
 In the given facts, it does not show that the act of the company supervisor in
barging in and demanding for Nad, Ned, and Nod to cease from distributing the flyers
relates to the commission of acts that transgress their right to organize or it was made to
interfere, restrain or coerce them with the exercise of their right to self-organization.
NOTE: The foregoing answer can be found in page 282-284 of the book entitled
Principles and Cases Labor Relations, Second Edition 2018. . Questions involving the
same subject matter were given during the 2004 Bar Examinations.

B.
Assume the NLRC ruled in favor of the Union. The Labor Arbiter's judgment included,
among others, an award for moral and exemplary damages at PhP50,000.00 each for
Nad, Ned, and Nod. Northern Lights Corporation argued that any award of damages
should be given to the Union and not individually to its members. Is Northern Lights
Corporation correct?

SUGGESTED ANSWER:

Northern Lights Corporation is not correct. The rights that were violated belongs
to the union members, Nad, Ned, and Nod, and not the union itself. Further, the said
union members were the real party in interest in the said case for ULP filed by the union
against the corporation and not the union itself. The union is a juridical person and as a
rule it cannot not suffer moral damages.