Transmit records within 24 hours from receipt of the Memo of Appeal BLR will decide on the
matter within 20 days from receipt of the
records
SLE decides on the matter within 20 days from
receipt of records Appeal to CA via Rule 65
Note: Appeal is by memo of appeal within 10 days from receipt of notice.
Q: Who cancels the certificate of registration?
A: The certificate of registration of any LLO, whether national or local, may be cancelled by the BLR, after due hearing, only on the grounds specified in Art. 239. (as amended by R.A. 9481) Q: What is the effect of a petition for cancellation or of union registration?
A: It shall not suspend the proceedings for certification election (CE) nor shall it prevent the filing of CE.
In case of cancellation, nothing herein shall restrict the right of the union to seek just and equitable remedies in the appropriate courts.
Q: Where is a petition for cancellation of registration or application for voluntary dissolution filed?
A:
1. For legitimate independent labor unions, local/chapter and worker’s association – It shall be filed with the Regional Office which issued its certificate of registration or creation.
2. For federations, national or industry and trade union centers – It shall be filed with the BLR. (Sec. 1, Rule XIV, Book V, IRR as amended by D.O. 40‐F‐03)
Q: Who may file a petition for cancellation of registration?
A:
1. For legitimate individual labor union, chartered local and worker’s association – Any party‐in‐interest may file a petition for cancellation of registration if the ground is:
a. Failure to comply with any of the req’ts under Art. 234, 237 and 238 of the LC.
b. Violation of any provision under Art.
239, LC.
2. For federations, national or industry unions, trade union centers – Only members of the labor organization (LO) concerned may file if the grounds are actions involving violations of Art. 241, subject to the 30% rule.
Q: What is the effect of cancellation of registration if the cancellation is made in the course of the proceedings?
A: Where a labor union is a party in a proceeding and later it loses its registration permit in the course or during the pendency of the case, such union may continue as party without need of substitution of parties, subject however to the understanding that whatever decision may be rendered will be binding only upon those members of the union who have not signified their desire to withdraw from the case before its trial and decision on the merits.
Note: Rationale: Principle of agency is applied – the Ees are the principals, and the LO is merely an agent of the former, consequently, the cancellation of the union’s registration would not deprive the consenting member‐Ees of their right to continue the case as they are considered as the principals.
Q: What are the grounds for cancellation of union registration?
A:
1. Misrepresentation, false statement or fraud in connection with the:
a. Adoption or application of the constitution and by‐laws or amendments thereto
b. Minutes of ratification and
c. List of members who took part in the ratification;
d. Election of officers
e. Minutes of the election of officers and
f. List of voters (Art. 239 as amended)
2. Voluntary dissolution by the members.
(as amended by R.A. 9481)
Note: A pronouncement as to the legality of the strike is not within the meaning of Art. 239 of the LC.
Q: What are the prohibited grounds for cancellation of union registration?
A:
1. The inclusion as union member of Ees who are outside the bargaining unit shall not be a ground to cancel the union registration. The ineligible Ees are automatically deemd removed from the list of membership of the union as.(Art.
245‐A as amended by RA 9481)
2. The affiliation of the rank‐and‐file and supervisory unions operating within the same establishment to the same federation or national union shall not be a ground to cancel registration of either union. (Sec. 6, Rule XIV, Book V, as inserted by D.O. 40‐F‐03)
Q: How is voluntary cancellation of registration made?
A: Registration may be cancelled by the organization itself provided:
1. At least ⅔ of its general membership votes to dissolve the organization, in a meeting duly called for that purpose; and
2. An application to cancel registration is thereafter submitted by the board of the organization, attested by its president.
Q: What are the “reportorial requirements”
required to be submitted by a legitimate labor organization (LLO) ?
A: The following documents are required to be submitted to BLR by the LLO concerned:
1. Within 30 days from adoption or ratification of the constitution and by laws (CBL) or amendments thereto:
a. CBL or amendments thereto b. Minutes of ratification
c. List of members who took part in the ratification of the constitution and by‐laws;
2. Within 30 days from date of election or appointment:
a. List of elected and appointed officers and agents entrusted with the handing of union funds
b. Minutes of election of officers c. List of voters
3. Annual financial report within 30 days after the close of every fiscal year 4. List of members at least once a year or
whenever required by the Bureau. (Sec. 1,
Rule V, Book V, IRR, as amended by D.O.
40‐F‐03)
Note: Failure to submit reportorial requirements is no longer a ground for cancellation but shall subject the erring officers or members to suspension, expulsion from membership, or any appropriate penalty (Art.
242‐A, as inserted by R.A. 9481).
Q: What is the successor‐ in‐interest doctrine?
A:
GR: It is when an Er with an existing CBA is succeeded by another Er, the successor‐in‐
interest who is the buyer in good faith has no liability to the Ees in continuing employment and the bargaining agreement because these contracts are in personam.
XPNs:
1. When the successor‐in‐interest expressly assumes an obligation;
2. The sale is a device to circumvent the obligation; or
3. The sale or transfer is made in bad faith.
(a)Substitutionary Doctrine Q: What is the substitutionary doctrine?
A: It is where there occurs a shift in the Ees union allegiance after the execution of a collective bargaining (CB) contract with the Er, the Ees can change their agent (labor union) but the CB contract which is still subsisting continues to bind the Ees up to its expiration date. They may however, bargain for the shortening of said expiration date.
Note: The Er cannot revoke the validly executed CB contract with their Er by the simple expedient of changing their bargaining agent. The new agent must respect the contract. (Benguet Consolidated Inc. v. BCI Ees and Worker’s Union‐PAFLU, G.R. No. L‐24711, April 30, 1968)
It cannot be invoked to support the contention that a newly certified CB agent automatically assumes all the personal undertakings of the former agent‐like the “no strike clause” in the CBA executed by the latter.
(8)Union Dues and Special Assessments
(a) Union Dues
Q: What are union dues?
A: These are regular monthly contributions paid by the members to the union in exchange for the
benefits given to them by the CBA and to finance the activities of the union in representing the union.
Q: What is check‐off?
A: It is a method of deducting from an Ee’s pay at a prescribed period, the amounts due the union for fees, fines and assessments.
Deductions for union service fees are authorized by law and do not require individual check‐off authorizations.
Q: What is the nature and purpose of check‐off?
A: Union dues are the lifeblood of the union.
All unions are authorized to collect reasonable membership fees, union dues, assessments and fines and other contributions for labor education and research, mutual death and hospitalization benefits, welfare fund, strike fund and credit and cooperative undertakings.(Art. 277[a])
Q: What are the requisites of a valid check‐off?
A:
GR: No special assessments, atty’s fees, negotiation fees or any other extraordinary fees may be checked off from any amount due to an employee (Ee) without individual written authorization duly signed by the Ee.
The authorization should specifically state the:
1. Amount 2. Purpose &
3. Beneficiary of the deduction.
XPNs:
1. For mandatory activities under the LC 2. For agency fees
3. When non‐members of the union avail of the benefits of the CBA:
a. Non‐members may be assessed union dues equivalent to that paid by union members;
b. Only by board resolution approved by majority of the members in general meeting called for the purpose.
(b) Special Assessments
Q: What are special assessments or extraordinary fees?
A: These are assessments for any purpose or object other than those expressly provided by the labor organization’s constitution and by‐laws.
Q: What are the requisites for a valid levy of special assessment or extraordinary fees?
A:
1. Authorization by a written resolution of the majority of all members at the general membership meeting duly called for that purpose;
2. Secretary’s record of the minutes of the meeting, which must include the:
a. List of members present b. Votes cast
c. Purpose of the special assessments d. Recipient of such assessments;
3. Individual written authorization to check‐
off duly signed by the Ee concerned – to levy such assessments.
Q: What is the effect of failure to strictly comply the requirements set by law?
A: It shall invalidate the questioned special assessments. Substantial compliance of the requirements is not enough in view of the fact that the special assessment will diminish the compensation of union members. (Palacol v. Ferrer‐
Calleja, G.R. No. 85333, Feb. 26, 1990)
Q: Who has jurisdiction over check‐off disputes?
A: Being an intra‐union dispute, the Regional Director of DOLE has jurisdiction over check off disputes.
Q: Distinguish check‐off from special assessments.
A:
Check‐off Special Assessment How approved
(Union Dues) By obtaining the individual written authorization duly signed by the Ee which must specify:
1. Amount 2. Purpose 3. Beneficiary
By written resolution approved by majority of all the members at the meeting called for that purpose.
Exception to such requirement
(Agency fees) Not necessary when:
1. For mandatory activities under the LC
2. For agency fees 3. When non‐members of
the union avail of the benefits of the CBA:
a. Said non‐members may be assessed union dues equivalent to that paid by union members;
b. Only by Board resolution approved by majority of the members in general meeting called for the purpose
No exception; written resolution is mandatory in all instances.
Q: Are Ees who are members of another union considered free riders?
A: No. When the union bids to become the bargaining agent, it voluntarily assumes the responsibility of representing all the Ees.
(9)Agency Fees
Q: What is an agency fee?
A: It is an amount equivalent to union dues, which a non‐union member pays to the union because he benefits from the CBA negotiated by the union.
Note: Agency fee cannot be imposed on Ees already in the service and are members of another union. If a closed shop agreement cannot be applied to them, neither may an agency fee, as a lesser form of union security, be imposed to them. Payment by non‐union members of agency fees does not amount to an unjust enrichment basically the purpose of such dues is to avoid discrimination between union and non‐union members.
Q: What are the requisites for assessment of Agency fees (Art. 248 [e], LC)?
A:
1. The employee is part of the bargaining unit 2. He is not a member of the union
3. He partook of the benefits of the CBA Note: The individual authorization required under Art.
242, par. O of the LC shall not apply to the non‐
members of the recognized collective bargaining agent.
Q: Distinguish union dues from agency fees.
A:
Union Dues Agency Fee
Is deducted from members for the payment of union dues
Is deducted from non‐
members of the bargaining agent (union) for the enjoyment of the benefits under the CBA.
May not be deducted from the salaries of the union members without the written consent of
the workers affected.
May be deducted from the salary of the Ees without their written
consent.
2.RIGHT TO COLLECTIVE BARGAINING Q: What is collective bargaining (CB)?
A:
1. It is the process of negotiation by an organization or group of workmen, in behalf of its members, with the employer (Er), concerning wages, hours of work, and other terms and conditions of employment and
2. The settlement of disputes by negotiation between an Er and the representative of his employees (Ee)
3. It is the obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreements if requested by either party but such does not compel any party to agree to a proposal or to make any concession. (Art. 252, LC)
Note:
GR: No court or administrative agency or official shall have the power to set or fix wages, rates of pay, hours of work, or other terms and conditions of employment
XPNs: As otherwise provided under the LC:
1. National Wages and Productivity Commission and RTWPB as to wage fixing.
(Art. 99 and 122, LC)
2. NCMB and NLRC as to wage distortion.
(Art. 124, LC)
3. SLE and President of the Philippines as to certification and assumption of powers over labor disputes. (Art. 236[g], LC)
Q: What is the purpose behind this rule?
A: It is to encourage a truly democratic method of regulating the relations between the employers and employees by means of agreements freely entered into through CB.
Q: Who are the parties to a CB?
A:
1. Employer
2. Employees, represented by the exclusive bargaining agent
Q: What are the jurisdictional preconditions in collective bargaining?
A:
1. Possession of the status of majority representation of the employees representative in accordance with any of the means of selection or designation provided for the Labor Code
2. Proof of majority representation
3. A demand to bargain under Art. 250 (a) of the LC. (Kiok Loy v. NLRC, G.R. No. L‐
54334, Jan.22, 1986)
a.Duty to Bargain Collectively
Q: When does the duty of the employer (Er) to bargain collectively arise?
A: Only after the union requests the Er to bargain. If there is no demand, the Er cannot be in default.
Note: Where a majority representative has been designated, it is an ULP for the Er, as a refusal to collectively bargain, to deal and negotiate with the minority representative to the exclusion of the majority representative.
Where there is a legitimate representation issue, there is no duty to bargain collectively on the part of the Er (Lakas ng mga Manggagawang Makabayan v. Marcelo Enterprises, G.R. No. L‐38258, Nov. 19, 1982)
Q: What is a collective bargaining agreement (CBA)?
A: It is a contract executed upon request of either the Er or the exclusive bargaining representative of the Ees incorporating the agreement reached after negotiations with respect to wages, hours of work, terms and conditions of employment, including proposals for adjusting any grievance or questions under the agreement.
Note: The certification of the CBA by the BLR is not required to make such contract valid. Once it is duly entered into and signed by the parties, a CBA becomes effective as between the parties whether or not it has been certified by the BLR. (Liberty Flour Mills Ee’s Association v. Liberty Flour Mills, G.R. Nos. 58768‐70, Dec. 29, 1989)
Q: What is a zipper clause?
A: It is a stipulation in a CBA indicating that issues that could have been negotiated upon but not contained in the CBA cannot be raised for negotiation when the CBA is already in effect.
A CBA is not an ordinary contract but one impressed with public interest, only provisions embodied in the CBA should be so interpreted and complied with.
Where a proposal raised by a contracting party does not find print in the CBA, it is not a part thereof and the proponent has no claim whatsoever to its implementation. (SMTFM‐UWP v. NLRC , G.R. No.
113856, Sept. 7, 1998)
Q: When shall bargaining commence?
A: It commences within 12 months after the determination and certification of the Ees exclusive bargaining representative. (certification year)
Q: What is the procedure in CB?
A: When a party desires to negotiate an agreement:
1. It shall serve a written notice upon the other party with a statement of proposals 2. Reply by the other party shall be made
within 10 days with counter proposals 3. In case of differences, either party may
request for a conference which must be held within 10 calendar days from receipt of request
4. If not settled, NCMB may intervene and encourage the parties to submit the dispute to a voluntary arbitrator
5. If not resolved, the parties may resort to any other lawful means (either to settle the dispute or submit it to a voluntary arbitrator).
Note: During the conciliation proceeding in the NCMB, the parties are prohibited from doing any act which may disrupt or impede the early settlement of disputes. (Art.250[d], LC)
Q: What are the stages in CB?
A:
1. Preliminary process: Sending a written notice for negotiation which must be clear and unequivocal
2. Negotiation process.
3. Execution process: The signing of the agreement
4. Publication for at least 5 days before ratification
5. Ratification by the majority of all the workers in the bargaining unit represented in the negotiation (not necessary in case of arbitral award) 6. Registration process.
7. Administration process: The CBA shall be jointly administered by the management and the bargaining agent for a period of 5 years.
8. Interpretation and Application process.
Q: Does a petition for cancellation of a union’s certificate of registration involve a prejudicial question that should first be settled before parties could be required to collectively bargain?
A: No. A pending cancellation proceeding is not a bar to set mechanics for collective bargaining (CB).
If a certification election may still be held even if a petition for cancellation of a union’s registration is pending, more so that the CB process may proceed.
The majority status of the union is not affected by the cancellation proceedings. (Capitol Medical Center v. Trajano, G.R. No. 155690, June 30, 2005) Q: What is the duty to bargain collectively when there is no CBA?
A: It is the performance of a mutual obligation:
1. To meet and convene promptly and expeditiously in good faith (GF)
2. For the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment
3. Including proposals for adjusting any grievances or questions arising under such agreement; and
4. To execute a contract incorporating such agreements if requested by either party.
(Art. 252)
Q: What are the limitations to the duty to bargain collectively?
A:
1. Such duty does not compel any party to agree to a proposal or to make any concession.
2. Parties cannot stipulate terms and conditions of employment which are below the minimum req’ts prescribed by law.
Q: May either party bargain to an impasse?
A: It depends:
1. Where the subject of a dispute is a mandatory bargaining subject, either party may bargain to an impasse as long as he bargains in GF.
2. Where the subject is non‐mandatory, a party may not insist in bargaining to the point of impasse. His instance may be construed as evasion of duty to bargain.
Q: What is the test of bargaining in bad faith?
A: There is no perfect test of good faith (GF) in bargaining. The GF or BF is an inference to be drawn from the facts and is largely a matter for the NLRC’s expertise. The charge of BF should be raised while the bargaining is in progress.
Note: With the execution of the CBA, BF can no longer be imputed upon any of the parties thereto. All
Note: With the execution of the CBA, BF can no longer be imputed upon any of the parties thereto. All