LABOR RELATIONS
LABOR RELATIONS
I. COLLECTIVE BARGAINING (Arts. 227-277)
I. COLLECTIVE BARGAINING (Arts. 227-277)
--- ---LEGITIMA
LEGITIMATE LABOTE LABOR ORGANR ORGANIZAIZATIONSTIONS
--- ---1.
1. WHAWHAT T ARE ARE THE 2 THE 2 WWAAYS OF YS OF BECBECOMIOMING NG AA LEGITIMA
LEGITIMATE LABOR ORG. TE LABOR ORG. (LLO)?(LLO)? a.
a. R R egistration with the BLR (INDEPENDENT UNION)egistration with the BLR (INDEPENDENT UNION) b.
b. CChartering or issuance of a federation or national unionhartering or issuance of a federation or national union of a charter certificate (LOCAL CHAPTER)
of a charter certificate (LOCAL CHAPTER) 2.
2. A) A) HOW HOW CAN CAN A A NON-NON-REGIREGISTESTERED RED UNIOUNIONN APPLY FOR AN AFFILIATION TO BECOME A APPLY FOR AN AFFILIATION TO BECOME A L.L.O.? OR ACQUIRE LEGITIMACY?
L.L.O.? OR ACQUIRE LEGITIMACY?
By application of the union with the federation for the By application of the union with the federation for the issuance of a charter certificate to be submitted to the Bureau issuance of a charter certificate to be submitted to the Bureau accompanied by the following:
accompanied by the following:
a) Copies of its constitution and by-laws; a) Copies of its constitution and by-laws; b)
b) Statement Statement of of the the set set of of officers officers and and books books ofof accounts, all of which must be certified by the Secretary/ accounts, all of which must be certified by the Secretary/ Treasur
Treasurer and atteser and attested to by tted to by the President. he President. In such case, In such case, thethe union becomes a local chapter of
union becomes a local chapter of the federation.the federation. NOTE:
NOTE: The issuance of charter certificate confer legal The issuance of charter certificate confer legal persona
personality lity only only for for purposepurposes s of of filing filing a a petitiopetition n forfor certification election.
certification election. 3.
3. CECERRTITIFIFICACATITION EON ELELECTCTIOION –N – the process ofthe process of determining by secret ballot the sole and exclusive determining by secret ballot the sole and exclusive bargaining
bargaining agent agent of of the the employees employees in in an an appropriateappropriate bargaining
bargaining unit, unit, for for purposes purposes of of collective collective bargainingbargaining (employees in the 3 payroll period prior to the (employees in the 3 payroll period prior to the certification election may vote) [Art.256]
certification election may vote) [Art.256] 4
4.. F O R M AF O R M AL I T I EL I T I ES S R E Q U IR E Q U IR E D R E D I N I N C R E AC R E AT I N GT I N G LOCAL CHAPTER BEFORE SUBMISSION OF LOCAL CHAPTER BEFORE SUBMISSION OF DOCUMENTS?
DOCUMENTS?
A duly registered federation or national union may directly A duly registered federation or national union may directly create a local chapter by ISSUING A CHARTER create a local chapter by ISSUING A CHARTER CERTIFICATE indicating the establishment of the local CERTIFICATE indicating the establishment of the local chapter. This supporting requirement shall be certified under chapter. This supporting requirement shall be certified under oath by the Secretary or the Treasurer of the local/chapter and oath by the Secretary or the Treasurer of the local/chapter and attested by its President (as Amended by
attested by its President (as Amended by DO 40-B-03).DO 40-B-03).
The chapter shall acquire legal personality ONLY for purposes The chapter shall acquire legal personality ONLY for purposes of filing a PCE from
of filing a PCE from the date it was the date it was issued a charter certificate.issued a charter certificate. The chapter shall be entitled to all other rights and privileges The chapter shall be entitled to all other rights and privileges of a LLO ONLY UPON THE SUBMISSION OF of a LLO ONLY UPON THE SUBMISSION OF DOCUMEN
DOCUMENTS in addition to TS in addition to its charter certificate.its charter certificate.
5.
5. A) LA) LEGAL EGAL EFFEEFFECTS CTS OF OF AFFAFFILIILIAATIOTION OF N OF ANAN UNREGISTERED UNION.
UNREGISTERED UNION.
Affiliat
Affiliation of a ion of a local chapter is generally understood to be local chapter is generally understood to be thatthat of agency, where the local union is the principal and the of agency, where the local union is the principal and the federation is the agent.
federation is the agent.
B) LEGAL EFFECTS OF AFFILIATION OF AN B) LEGAL EFFECTS OF AFFILIATION OF AN INDEPENDENTL
INDEPENDENTLY REGISTERED Y REGISTERED UNION.UNION.
Affiliation would allow an independent union to secure Affiliation would allow an independent union to secure support or assistance during the formative stage of support or assistance during the formative stage of unionization
unionization from the from the national union national union or federation. or federation. It wouldIt would also allow to utilize the expertise in preparing and pursuing also allow to utilize the expertise in preparing and pursuing bargaining proposals, and marshal the
bargaining proposals, and marshal the mind and mind and manpower ofmanpower of national unions or federations in the course of group actions national unions or federations in the course of group actions such as strikes.
such as strikes. NOTE:
NOTE: For both affiliating unions, the legal effect is that it For both affiliating unions, the legal effect is that it becomes subject
becomes subject to the to the laws of laws of the federation, the federation, with respect with respect toto the enforcement of constitution, by-laws and rules. It creates the enforcement of constitution, by-laws and rules. It creates and between the parent body (federation) and the subordinate and between the parent body (federation) and the subordinate union (affiliation/
union (affiliation/local union) and between the local union) and between the members of themembers of the subordinate union
subordinate union inter seinter se.. 6.
6. THE THE EFFEFFECT ECT OF OF DISDISAFFIAFFILIALIATIOTION TN TO (AO (A) ) ANDAND (B)?
(B)?
The effect of disaffiliation to the union by an unregistered The effect of disaffiliation to the union by an unregistered union is that it would cease to be a legitimate labor union is that it would cease to be a legitimate labor organization and would no longer have legal personality and organization and would no longer have legal personality and the rights and privileges granted by law to legitimate the rights and privileges granted by law to legitimate organization, unless the local chapter is covered by a duly organization, unless the local chapter is covered by a duly registered CBA
registered CBA. . In the latter case, tIn the latter case, the local or chapter wilhe local or chapter will notl not lose its legal personality until the expiration of the CBA. lose its legal personality until the expiration of the CBA. AfterAfter the CBA expires it will lose its legal personality unless it the CBA expires it will lose its legal personality unless it registers as an independent union.
registers as an independent union.
The effect of disaffiliation by an independently registered The effect of disaffiliation by an independently registered union is that it WOULD NOT AFFECT ITS BEING A union is that it WOULD NOT AFFECT ITS BEING A LEGITIMATE LABOR ORGANIZATION and therefore it LEGITIMATE LABOR ORGANIZATION and therefore it would continue to have legal personality and
would continue to have legal personality and to possess all theto possess all the rights and privileges of a LLO.
rights and privileges of a LLO. 7.
7. MANMANNER NER ON DON DISAISAFFIFFILIALIATINTING BY G BY A A LOCALOCALL UNION FROM A FEDERATION? PERIOD?
UNION FROM A FEDERATION? PERIOD?
When affiliated, a local union may disaffiliate from the When affiliated, a local union may disaffiliate from the federation.
federation. The The general general rule rule is is that that a a labor labor union union maymay disaffiliate from the mother union to form an independent disaffiliate from the mother union to form an independent union only during the 60-day freedom period immediately union only during the 60-day freedom period immediately prec
precedinedin g g the the expexpiratiration ion of of the the CBA.CBA. [LIMITATION:[LIMITATION: Disaffiliat
Disaffiliation ion should should be be in in accordance accordance with with the the rules rules andand procedur
procedures es stated stated in in the the Constitution Constitution and and By-Laws By-Laws of of thethe Federation].
Federation].
The exception is when there is disaf
The exception is when there is disaffiliation by majorityfiliation by majority. . EvenEven before the onset
before the onset of the of the freedom period, disaffiliation may stillfreedom period, disaffiliation may still be
be carried carried out, out, but but such such disaffiliatdisaffiliation ion must must be be effected effected by by aa majority of the union members in the bargaining unit (through majority of the union members in the bargaining unit (through secret ballot).
secret ballot). This happens when therThis happens when there is a substantial shift ie is a substantial shift inn allegiance on the part of the majority of the members of the allegiance on the part of the majority of the members of the union.
union. In such a case, however, the CBA In such a case, however, the CBA continues to bind thecontinues to bind the members of the new or disaffiliated and independent union up members of the new or disaffiliated and independent union up to the CBA
to the CBA’s ’s expiratioexpiration date. n date. A A consent election to determineconsent election to determine the union which shall administer the CBA may be conducted. the union which shall administer the CBA may be conducted.
8.
8. A) RA) RIGIGHTHTS OF S OF LLLLO? (O? (USUSERERFOFOE)E) a.
a. UUndertake activities for benefit of ndertake activities for benefit of members;members; b.
b. SSue and be sued;ue and be sued; c.
c. EExclusive representative of all employees;xclusive representative of all employees; d.
d. R R epresent union members;epresent union members; e.
e. FFurnished by employers of urnished by employers of audited financial statements;audited financial statements; f.
f. OOwn properties; andwn properties; and g.
g. EExempted from taxes.xempted from taxes.
B) CONDITIONS REQUIRED BEFORE A RIGHT TO B) CONDITIONS REQUIRED BEFORE A RIGHT TO AUDITED FINANCIAL STA
AUDITED FINANCIAL STATEMENTS BE TEMENTS BE GRANTED.GRANTED. To better equip the union in preparing for or in negotiating To better equip the union in preparing for or in negotiating with the employer, the law gives it the right to be furnished with the employer, the law gives it the right to be furnished with the empl
with the employer’s audited oyer’s audited financial statefinancial statements. ments. There are 4There are 4 points
points in in time time when when the the union union may may ask ask in in writing writing for for thesethese statements:
statements:
a. after the union has been recognized by the employer as sole a. after the union has been recognized by the employer as sole bargaining
bargaining representative of representative of the the employees employees in in the the bargainingbargaining unit;
unit;
b. after the union is certified by DO
b. after the union is certified by DOLE as such sole bargainingLE as such sole bargaining representative;
representative;
c. within the last 60 days of the life of a CBA; c. within the last 60 days of the life of a CBA; d. during the
d. during the collective bargaining negotiation.collective bargaining negotiation.
The audited statements, including the balance sheet and the The audited statements, including the balance sheet and the profit and loss
profit and loss statement, should be provided statement, should be provided by the by the employeremployer within 30 calendar days after receipt of the
within 30 calendar days after receipt of the union’union’s request.s request. 9.
9. GRGROUNOUNDS FDS FOR CAOR CANCNCELLELLAATITION OON OF UNF UNIOIONN REGISTRATION.
REGISTRATION. a.
a. MisrMisrepresepresentatentation, ion, false false statestatement ment or or fraud fraud in in conneconnectionction with the adoption or ratification of the constitution and by with the adoption or ratification of the constitution and by laws;
laws; b.
b. Amendments thereto, the Amendments thereto, the minutes of minutes of ratification, and ratification, and thethe list of members who took part in
list of members who took part in the ratification;the ratification; c.
c. MisrMisrepresepresentatentation, ion, false false statstatementements or s or fraufraud in d in conneconnectionction with the election of officers, minutes of the election of with the election of officers, minutes of the election of officers, and the list of voters; and
officers, and the list of voters; and d.
d. VVoluoluntantary dry dississoluolutiotion by tn by the mhe membembersers.. (Art.239 LC As(Art.239 LC As Amended by R
Amended by RA 9481)A 9481) NOTE:
NOTE: Failure to submit reportorial requirements is noFailure to submit reportorial requirements is no longer a ground for cancellation but shall subject the longer a ground for cancellation but shall subject the erringerring officers or members to suspension, expulsion from officers or members to suspension, expulsion from membership, or any appropriate penalty.
membership, or any appropriate penalty. (Art.242-A(Art.242-A Inserted by RA
Inserted by RA 9481)9481)
1
100.. W HW H O O C AC A N N F IF I L E L E P EP E T IT I T IT I O N O N F OF O RR CANCELLATION OF UNION REGISTRATION? CANCELLATION OF UNION REGISTRATION? If it is for a legitimate individual labor union, chartered local, If it is for a legitimate individual labor union, chartered local, or a worker’s association, the petition may be filed by or a worker’s association, the petition may be filed by anyany party-in-interest
party-in-interest, if the ground is: a) Failure to comply with, if the ground is: a) Failure to comply with any of the requirements under Art.234, 237 and 238 LC; and any of the requirements under Art.234, 237 and 238 LC; and b) V
b) Violation of any iolation of any provision under provision under Art.239 LC.Art.239 LC.
If it is for federations, national or industry unions, or trade If it is for federations, national or industry unions, or trade union centers, the petition may be filed
union centers, the petition may be filed only by the membersonly by the members
of the labor organization
of the labor organization concerned if grounds are actions concerned if grounds are actions involving violations of Art.241, subject to the
involving violations of Art.241, subject to the 30% rule.30% rule. 1
111.. A R E A R E P E T I T I O NP E T I T I O N S S F O R F O R C A N C E LC A N C E L L A T I O NL A T I O N APPEALABLE?
APPEALABLE?
YES. Cancellation orders issued by the Regional Director (for YES. Cancellation orders issued by the Regional Director (for legitimate independent labor union/chartered local and legitimate independent labor union/chartered local and worker’s association), are appealable to the Bureau of Labor worker’s association), are appealable to the Bureau of Labor Relations (BLR).
Relations (BLR). The BLR’The BLR’s decision s decision is final is final and executor,and executor, hence, not appealable to the DOLE Secretary, but it may be hence, not appealable to the DOLE Secretary, but it may be elevated to the
elevated to the CA by certiorari.CA by certiorari.
Cancellation cases that originated at the BLR itself may be Cancellation cases that originated at the BLR itself may be appealed to the DOLE Secretary
appealed to the DOLE Secretary, and again, by , and again, by certiorari to thecertiorari to the CA.
CA. 12.
12. WHAWHAT IS T IS THE EFFTHE EFFECT ECT OF OF CANCELLACANCELLATIONTION PROCEEDINGS?
PROCEEDINGS?
Where a labor union is a party in a proceeding and later it Where a labor union is a party in a proceeding and later it loses its registration permit in the course or during the loses its registration permit in the course or during the pendency
pendency of of the the case,case, such union may continue as a partysuch union may continue as a party without need of substitution of parties
without need of substitution of parties, subject however to, subject however to the understanding that whatever decision may be rendered the understanding that whatever decision may be rendered therein will be binding only upon those members of the union therein will be binding only upon those members of the union who have not signified their desire to withdraw from the case who have not signified their desire to withdraw from the case before its tr
before its trial and decision ial and decision on the merits.on the merits. NOTE:
NOTE: Only a final order of cancellation can strip a LLO ofOnly a final order of cancellation can strip a LLO of its rights.
its rights.
(( Principle Principle of of AgencyAgency applied – the employees are the applied – the employees are the principals and the labor organization is merely
principals and the labor organization is merely an agent of an agent of thethe former, consequently, the cancellation of the union’s former, consequently, the cancellation of the union’s registration would not deprive the consenting registration would not deprive the consenting member-employees of their right to continue the case as they are employees of their right to continue the case as they are considered as the principals.)
considered as the principals.)
13.
13. CAN TCAN THE L.O. HE L.O. CANCEL CANCEL ITS RITS REGISTREGISTRAATION?TION? PROCEDURE?
PROCEDURE?
YES. The registration of a LLO may be cancelled by the YES. The registration of a LLO may be cancelled by the organization itself PROVIDED: a) At least 2/3 of its general organization itself PROVIDED: a) At least 2/3 of its general membership votes, in a meeting duly called for that purpose to membership votes, in a meeting duly called for that purpose to dissolve the organization; and b) An application to cancel dissolve the organization; and b) An application to cancel registration is submitted by the board of the organization, registration is submitted by the board of the organization, attested to by the president thereof.
attested to by the president thereof. (Art.239-A LC. New(Art.239-A LC. New Provis
Provision inserted by Rion inserted by RA 9481).A 9481).
14.
14. RIGHTS RIGHTS AND COAND CONDITIONDITIONS OF NS OF MEMBEMEMBERSHIPRSHIP (DIMP)
(DIMP) A.
A. Deliberative and Decision-Making Right Deliberative and Decision-Making Right -
-The right to participate in deliberations on the major policy The right to participate in deliberations on the major policy questions and decide by secret ballot;
questions and decide by secret ballot; B.
B. Right Right to to Information Information –– the right to be informed about: a)the right to be informed about: a) the organization’s constitution and by laws; and b) the CBA the organization’s constitution and by laws; and b) the CBA and Labor laws;
C. Right Over Money Matters – the rights of the members: a) Against imposition of excessive fees; b) Right against unauthorized collection of contributions or unauthorized disbursements; c) To require adequate records of income and expenses; d) To access financial records; e) To vote on officers’ compensation; f) To vote on special assessment; g) To be deducted a special assessment only with the member’s
written authorization;
D. Political Right – the right to vote and be voted for, subject to lawful provisions on qualifications and disqualifications. NOTE: Any violation of the above rights and conditions of
membership shall be a ground for cancellation of union registration or expulsion of an officer from office, whichever is appropriate. At least 30% of all the members of the union or any member or members specifically concerned may report such violation to the Bureau.
15. QUALIFICATIONS OF UNION OFFICERS (3) One should be employed in the company to qualify as officer of a union in that company. The union officer must not possess any disqualification such as “moral turpitude” defined as an act of baseness, vileness, or depravity in the private and social duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man or conduct contrary to justice, honesty, modesty or good morals.
16. QUALIFICATIONS OF VOTERS
Only members of the union have the eligibility to take part in the election of union officers. Eligibility to vote may be determined through the use of the applicable payroll period and the status of the employees during the applicable period. This pertains to the payroll of the month next preceding the labor dispute, in case of regular employees, and the payroll period at or near the peak of operation, in case of employees in
seasonal industries.
LIMITATIONS (RI-SU-RE):
a. The labor organization cannot compel employees to become members of their labor organization if they are
already members of a RIVAL UNION;
b. Th e pe rs on s me nt io ne d in Ar t. 24 1 (e ) LC – SUBVERSIVES – are prohibited from becoming a member of a labor organization;
c. The members of RELIGIOUS ORG whose religion forbids membership in labor organization could not be compelled into union membership.
17. A R E U N I O N O F F I C E R S E N T I T L E D T O COMPENSATION?
Union officers shall not be paid any compensation other than the salaries and expenses due to their positions as specifically provided for in its constitution and by-laws, or in a written resolution duly authorized by a majority of all the members at a general membership meeting duly called for the purpose. (Art. 241 [k])
18. GROUNDS FOR EXPULSION / IMPEACHMENT OF UNION OFFICERS (4)
Union officers may be expelled from the union or removed from office on the following grounds:
a. violation of the rights and conditions of membership in labor organization under Art. 241
b. commission of irregularities in the approval of the resolution regarding compensation of union officers
c. membership in another labor organization
d. culpable violation of the constitution and by-laws NOTE: The power to expel or remove union officers from office is within the jurisdiction of BLR.
---CHECK-OFF & SPECIAL ASSESSMENT / ULP
---1. REQUISITES OF VALID LEVY OF SPECIAL ASSESSMENT (RAMM)
a. There must be a written R esolution;
b. The resolution must have been A pproved by a majority of all the members; and
c. The approval must be at a general Membership meeting duly called for that purpose;
d. The Secretary of the organization shall record the minutes of the meeting, which shall be attested to by the President. The Minutes include: d1) The list of all members present; d2) The votes cast; and d3) The purpose of the assessment or fees.
NOTE: Substantial compliance with the aforementioned procedure is not enough – the requirements must be strictly
complied with.
2. WHAT IS A CHECK-OFF?
A check-off is a method of deducting from an employee’s pay at prescribed period, the amounts due to the union for fees, fines or assessments.
3. WHAT ARE THE REQUISITES OF A VALID CHECK-OFF?
No special assessment, attorney’s fees, registration fees or any other extraordinary fees may be checked off from any amount due an employee without an individual written authorization duly signed by the employee. The authorization should specifically state the (APB): a) Amount; b) Purpose; and c) Beneficiary of the deduction.
4. A R E T H E R E Q U IS I T ES F O R C H E C K- O F F R E Q U I R E D F O R A L L A C T I V I T I E S ? MANDATORY ACTIVITIES?
NO. The requisites for check-off are not required for all activities. The exception to the rule requiring the requisites for check off are:
a. For MANDATORY ACTIVITIES provided under the LC
b. When NON-MEMBERS OF THE UNION AVAIL OF THE BENEFITS OF THE CBA: b1) Said non-members may be assessed union dues equivalent to that paid by members; and b2) Only by a board resolution approved by majority of the members in a general meeting called
for the purpose.
NOTE: No individual written authorization required for non-union members assessed of agency fees, who has benefited from the CBA.
5. CAN AN EMPLOYEE WITHDRAW HIS CHECK
OFF AUTHORIZATION? HOW?
YES. A withdrawal of individual authorizations is equivalent to no authorization at all. Documents containing the withdrawals have the signature of union members. These retractions are valid. There is nothing in the law which requires that the withdrawals must be in individual form. 6. WHO CAN FILE FOR THE VIOLATION OF ART.
241?
At least 30% of all the members of the union or any member or members specifically concerned may report such violation to the Bureau.
7. IS THE 30% RULE REQUIRED FOR FILING A VIOLATION OF ART.241 MANDATORY?
Gen. Rule: YES.
Exception: May be less than 30% provided there is substantial compliance.
- The 30% may be dispensed when such violation directly affects only one or two members, then only one or tow members would be enough to report such violation.
8. A) WHAT IS AN UNFAIR LABOR PRACTICE (ULP)?
A1. Any unfair labor practice as expressly defined by the Code;
A2. Any act intended or directed to weaken or defeat the worker’s right to self-organize or to engage in lawful concerted activities.
B) ESSENTIAL ELEMENTS?
B1. Employer-Employee relationship between the offender and the offended; and
B2. Act done is expressly defined in the code as an act of unfair labor practice (Art.248, 249)
NOTES:
- The Essential Element is the violation of the right of
employees to self-organization.
- Except for Art.248 (f) – Dismissing Employee for
Giving Testimony – all prohibited acts are related to the worker’s self-organizational right and the observance of the CBA.
9. C A N U L P B E C O M M I T T E D A G A I N S T MANAGERIAL EMPLOYEES?
Generally NO. Managerial employees are the alter ego of the employers and thus they are supposed to be on the side of the employer to act as its representatives, and to see to it that its interests are well protected.
10. HOW DO WE DETERMINE IF AN EMPLOYER COMMITTED A ULP?
Totality of Conduct Doctrine – The culpability of employer’s remarks is to be evaluated not only on the basis of their implications, but against the background of and in conjunction with collateral circumstances.
Check also the MOTIVE.
11. THE SPECIFIC ACTS OF ULP OF EMPLOYERS? (ICC-FDD-PVV)
a. To interfere with, restrain or coerce employees in the exercise of their right to self-organization;
b. To require as a condition for employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs;
c. To contract out services or functions being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their right to self-organization;
d. To initiate, dominate, assist or otherwise interfere with the f ormation or administration of any labor organization, including the giving of financial or other support to it or its organizers or officers.
e. To discriminate in regard to wages, hours of work, and other terms and conditions of employment in order to encourage or discourage membership in any labor organization;
f. To dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code;
g. To violate the duty to bargain collectively as prescribed by this Code;
h. To pay negotiation or attorney’s fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other disputes;
i. To grossly violate the CBA. The violation must be “gross” or a flagrant and/or malicious refusal to comply with the economic provisions of the CBA.
12. A) WHAT IS THE TEST OF INTERFERENCE? B) EXAMPLE.
A) Whether the employer has engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of the employees’ right and it is not necessary that there be direct evidence that any employee was in fact intimidated or coerced by the statements of threats or the
employer if there is a reasonable interference that the anti-union conduct of the employer does have an adverse effect of self-organization and collective bargaining. (The Insular Life NATU vs. The Insular Life)
B) EXAMPLES:
B1. Outright and unconcealed intimidation
B2. In order that interrogation would not be deemed coercive: a) The employer must communicate to the employee the purpose of questioning;
b) Assure him that no reprisal would take place; and c) Obtain employee participation voluntarily.
B3. Must be free from employer hostility to union organization
B4. Must not be coercive in nature
B5. Intimidating expressions of opinion by employer
An employer who interfered with the right to self-organization before a union is registered can be held guilty of ULP
(Samahan ng Manggagawa sa Bandolino vs. NLRC)
13. WHAT IS THE TOTALITY DOCTRINE?
Totality of Conduct Doctrine – The culpability of employer’s remarks is to be evaluated not only on the basis of their implications, but against the background of and in conjunction with collateral circumstances.
14. WHAT IS A YELLOW DOG CONTRACT?
A yellow dog contract is a promise exacted from workers as a condition of employment that they are not to belong to, or attempts to foster, a union during their period of employment. It is null and void because it is contrary to public policy coz tantamount to involuntary servitude, it is entered without consideration for employees in waiving their right to self-organization, and the employees are coerced to sign contracts disadvantageous to their family.
15. WHEN DOES CONTRACTING OUT SERVICES BECOME ULP?
Contracting out services is not ULP per se. It is ULP only when the following conditions exist:
a) The service contracted out are being performed by union members; and
b) Such contracting out interferes with, restrains, or coerce employees in the exercise of their right to self-organization.
---UNFAIR LABOR PRACTICE
---1. A) CAN AN ULP BE COMMITTED AGAINST SUPERVISORY EMPLOYEES?
It depends.
GENERAL RULE: Supervisory employees can form labor organization. Hence, LO = ULP.
EXCEPTION: If the supervisory employee exercise functions that of the same as managerial employee (test of supervisory status), they are disqualified from forming or joining labor organizations. Hence, no LO = no ULP.
NOTE: Test of supervisory status – supervisory status should be determined on whether the recommendatory power of the employee is effective and not merely routinary or clerical in nature, but requires the use of independent judgment.
B) CONFIDENTIAL EMPLOYEES? It depends.
If the confidential employees have access to labor relations information they are disqualified from forming or joining labor organizations, therefore no LO = no ULP. (Doctrine of necessary implication)
2. HOW DOES INTERFERENCE MANIFESTED?
(See No. 12A, page 5)
3. YELLOW DOG ONTRACT?
(See No.14, page 5)
4. HOW DOES CONTRACTING OUT SERVICES
MANIFESTED? (See No.15, page 5)
5. REMEDY IF THE UNION IS DOMINATED BY EMPLOYER?
DISESTABLISHMENT
6. A) HOW DOES DISCRIMINATION MANIFESTED?
To discriminate in regard to wages, hours of work, and other terms and conditions of employment in order to encourage or discourage membership in any labor organization.
B ) W H E N C A N W E S A Y T H E R E I S DISCRIMINATION?
Whenever benefits or privileges given to one is not given to the other under similar or identical conditions when directed to encourage or discourage union membership.
3 COMPONENTS OF DISCRIMINATION:
B1. It prohibits discrimination in terms and conditions of employment in order to encourage or discourage membership in the union;
B2. It gives validity to union security agreements; and
B3. It allows an agency shop arrangement whereby agency fees may be collected from non-union members.
They are stipulations in the CBA requiring membership in the contracting union as a condition for employment or retention of employment in the company.
8. TYPES OF UNION SECURITY AGREEMENTS
(CUMM-PA-BE)
a. CLOSED-SHOP AGREEMENT – The employer undertakes not to employ any individual who is not a member of the contracting union and the said individual once employed must, for the duration of the agreement, remain a member of the union in good standing as a condition for continued employment;
b. UNION SHOP AGREEMENT – Stipulation whereby any person can be employed by the employer but once employed such employee must, within a specific period, become a member of the contracting union and remain as such in good standing for continued employment for the duration of the CBA;
c . MAI NT E NANC E O F ME MB E RS H I P S H O P AGREEMENT – The agreement does not require non members to join the contracting union but provides that those who are members thereof at the time of the execution of the CBA and those who may thereafter become members must maintain their membership for the duration of the agreement; d. MODIFIED UNION SHOP – Employees who are not union members at the time of signing the contract need not join the union, but all the workers hired thereafter must join;
e. PREFERENTIAL SHOP AGREEMENT – An agreement whereby the employer merely agrees to give preference to the members of the bargaining union in hiring, promotion or filling vacancies and retention in case of lay-off;
f. AGENCY SHOP AGREEMENT – An agreement whereby employees must either join the union or pay to the union as the exclusive bargaining agent a sum equal to that paid by the members;
g. BARGAINING FOR MEMBERS ONLY – The union is recognized as the bargaining agent only for its own members; h. EXCLUSIVE BARGAINING SHOP – The union is recognized as the exclusive bargaining agent for all employees in the bargaining unit, whether union members or not.
9. WHEN DOES GIVING A TESTIMONY BECOME A
ULP?
It is the employer’s retaliatory act regardless of the subject of employee’s complaint or testimony. In effect, if a retaliatory act is done under Art.118, the consequence is ULP under Art. 248(f).
10. H O W D O E S T H E D U T Y T O B A R G A I N COLLECTIVELY MANIFESTED? (Art.252 & 253) Where NO CBA Exists (Art.252)
The duty to bargain collectively means the performance of mutual obligation:
a. 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
b. TO EXECUTE A CONTRACT incorporating such agreements if requested by either party.
LIMITATIONS:
a. The duty to bargain collectively does not compel any party to: 1) agree to a proposal; 2) make a concession; or 3) make room for ‘take it or leave it’ posture.
b. The parties cannot stipulate terms and conditions of employment which are below the minimum requirements prescribed by law.
Where CBA Exists (Art.253)
When there is an existing CBA, the duty to bargain collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime. It is the duty of both parties to:
a. Keep the status quo; and
b. To continue in the full force and effect the terms and conditions of the existing CBA.
EXCEPTION:
During the 60-day period prior to its expiration, upon service of a written notice of a party’s intention to terminate or modify the same, a party may choose to terminate or modify the non-representational aspect of the CBA only after the expiration of CBA of fixed duration.
11. H O W T H E V I O L A T I O N O F C B A B E CONSIDERED AN ULP?
Violations of a CBA shall no longer be treated as ULP and shall be resolved as grievances under the CBA, except if the violations of the CBA are gross in character. For purposes of this article, gross violations of the CBA shall mean flagrant and/or malicious refusal to comply with the economic provisions of such agreement. (Art.261)
12. CAN A LABOR ORG COMMIT ULP? YES. (Art.249) [R-Cd-V / Cp-A-V]
a. To restrain or coerce employees in the exercise of their right to self-organization. However, a labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of membership;
b. To cause or attempt to cause an employer to discriminate against an employee, including discrimination against an employee with respect to whom membership in such organization has been denied or to terminate an employee on any ground other than the usual terms and conditions under which membership or continuation of membership is made available to other members;
c. To violate the duty or refuse to bargain collectively with the employer provided that it is the representative of the employees;
d. To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other things of value, in the nature of an exaction, for services which are not performed or not to be performed, including the demand for a fee for union
negotiations;
e. To ask for or accept negotiation or Attorney’s fees from employers as part of the settlement of any issue in collective bargaining or any other dispute;
f. To grossly violate a collective bargaining agreement. 13. WHAT IS FEATHERBEDDING?
Featherbedding (make-work activities) refers to the practice of the union or its agents in causing or attempting to cause an employer to pay or deliver or agree to pay or deliver money or other things of value, in the nature of exaction, for services which are not performed or not to be performed, as when a union demands that the employer maintain personnel in excess of the latter’s requirements.
NOTE: It is not featherbedding if the work is performed no matter how unnecessary or useless it may be.
14. HOW DOES A UNION VIOLATE THE DUTY TO BARGAIN COLLECTIVELY BE CONSIDERED AN ULP?
FOUR (4) FORMS OF ULP IN BARGAINING a. Failure or refusal to meet and convene;
b. Evading the mandatory subjects of bargaining. ( Mandatory Subjects includes wages, hours or work, grievance machinery, voluntary arbitration, family planning, rates of pay, and mutual observance
clause);
c. Bad faith in bargaining (boulwarism, which occurs when the employer directly bargains with the employee disregarding the union. The employer submits its proposals and adopts a ‘take it or leave it’ stand. This is not negotiation because such stand implies threat). Bad faith bargaining also includes failure or refusal to execute the CBA if requested; and
d. Gross violation of the CBA. [ NOTE: Violations of the CBA, except those which are GROSS in character, shall no longer be treated as an ULP but as a grievance under the CBA (Art.261).]
15. WHO ARE CRIMINALLY LIABLE FOR ULP? ULP OF EMPLOYERS (Art.248) Only the officers and agents of corporations, associations or partnerships who have actually participated in, authorized or ratified ULP shall be held
criminally liable.
ULP OF LABOR ORGANIZATIONS (Art.249) The officers, members of governing boards, representatives or agents or members of labor associations or organizations who have
actually participated in, authorized or ratified ULP shall be held criminally liable. (Art.249)
---COLLECTIVE BARGAINING PROCESS
---1. JURISDICTIONAL PRECONDITIONS OF CBA
(EPPD)
a. Employer-employee relationship;
b. Possession of the status of majority representation by the employees’ representative in accordance with any of the means of selection or designation provided for by the Labor Code;
c. Proof of majority representation (Certification of the BLR that the representative of the employees is the sole and exclusive bargaining agent having won in a certification election); and
d. Demand to bargain under Art. 250(a) of the Labor Code.
2. FUNDAMENTAL FACTORS IN FIXING AN
APPROPRIATE BARGAINING UNIT (4)
1. Globe Doctrine – the express will or desire of the employees;
2. Community of Interest Doctrine or the Substantial Mutual Interest Rule – the substantial and mutuality interests factor. [ NOTE: Things To Consider in Determining Community of Interest: (a) Similarity in scale/manner of determining earnings; b) Similarity in employment benefits, hours of work and other terms & conditions of employment; (c) Similarity in kinds of work performed; (d) Similarity in qualifications, skills and training of the employees; (e) Similarity in supervision and determination of labor relations policy; (f) Frequency of contract or interchange among the employees; (g) History of previous collective bargaining; (h) Desires of the affected employees; and (i) Extent of union organization.
3. History or the prior CBA history;
4. Employment status such as: (a) Temporary, (b) Seasonal, (c) Probationary Employee
3. A) ONE COMPANY – ONE UNION POLICY
The proliferation of unions in an employer unit is discouraged as a matter of policy unless there are compelling reasons which would deny a certain class of employees the right to self-organization for purposes of collective bargaining.
B) EXCEPTIONS (3)
a) Supervisory employees who are allowed to form their own unions apart from the rank-and-file employees;
b) Two companies cannot be treated into a single bargaining unit even if their businesses are related; c) Subsidiaries or corporations formed out of former
reorganization may constitute a separate bargaining unit.
4. A) VOLUNTARY RECOGNITION
Voluntary Recognition is the process whereby the employer recognizes a labor organization as the exclusive bargaining representative of the employees in the appropriate bargaining unit after a showing that the labor organization is supported by at least a majority of the employees in the bargaining unit. B) REQUIREMENTS (U1M)
B1. Voluntary recognition is possible only in an U NORGANIZED establishment;
B2. Only ONE (1) UNION is asking for recognition;
B3. The union voluntarily recognized should be the MAJORITY union as indicated by the fact that members of the bargaining unit did not object to the projected recognition. C) LEGAL EFFECTS OF VOLUNTARY RECOGNITION Through voluntary recognition by the employer, the labor organization is recognized by the employer as the exclusive bargaining agent which may collectively bargain with such
employer.
5. CERTIFICATION ELECTION
Certification Election is the process of determining by secret ballot the sole and exclusive bargaining agent of the
employees in an appropriate bargaining unit, for purposes of collective bargaining (employees in the 3 payroll period prior to the certification election may vote). The election is conducted under the supervision and control of DOLE officials. It ends up with a formal and official statement of results, certifying which union won, if any. Hence, the election is appropriately called “certification election.”
Certification election can be filed anytime if there is no CBA or is not registered. It can be filed during the freedom period if there is an incumbent CBA.
6. CONTRACT BAR RULE
While a valid and registered CBA is subsisting for a FIXED PERIOD OF 5 YRS, the Bureau is not allowed to hold an election contesting the majority status of the incumbent union EXCEPT during the sixty (60) day-period immediately prior to its expiration, which period is called the FREEDOM PERIOD. (Art.231)
7. W H O C A N F I L E A P E T I T I O N F O R CERTIFICATION ELECTION (PCE)?
a. Legitimate Labor Organization (LLO) including a national union or federation which has already issued a charter certificate to its local chapter participating in the certification election
b. Local chapter which has been issued a charter certificate by the national union or federation
c. The employer - when requested by the employees – may file a PCE in an unorganized establishment. NOTE: DURING THE PENDENCY FOR REGISTRATION, THE L.O. CAN ALREADY FILE A PCE. ALSO UPON THE ISSUANCE OF CHARTER CERTIFICATE TO A LOCAL CHAPTER.
8. R E Q U I S I T E S I N A N O R G A N I Z E D ESTABLISHMENT (Art.256)
In organized establishments, when a verified petition questioning the majority status of the incumbent bargaining agent is filed by any LLO including a national union or federation which has already issued a charter certificate to its local chapter participating in the CE or a local chapter which has been issued a charter certificate by the national union or federation before the DOLE within the 60-day period before the expiration of the CBA, the Med-Arbiter shall automatically order an election by secret ballot when the verified petition is supported by the written consent of at least 25% of all the employees in the bargaining unit to ascertain the will of the employees in the appropriate bargaining unit. To have a valid election, at least a majority of all eligible voters in the unit must have cast their votes. The labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit. 9. RULES IN THE 25% CONSENT REQUIREMENT
INCLUDING WITHDRAWAL OF CONSENT
In deciding whether the 25% requirement is applicable or not, the law considers the CBU involved, not the whole enterprise. This, again, makes it easy for workers to unionize, a basic objective of labor relations law.
In an organized establishment, the PCE must be supported by the written consent of at least 25% of all the employees in the appropriate bargaining unit (Art.256). The 25% initial support indicates that the petitioner has a fair chance of winning and that the petition is not just a nuisance.
But in an unorganized establishment, the 25% consent signature requirement is not applicable. A group of supervisors (unionized) who files a PCE does not need to present 25% minimum support because such is considered
unorganized. The petition for CE involves only the supervisors, not the rank-and-file. Insofar as the supervisors are concerned, the “establishment” is considered unionized. Hence the requirement for 25% support to the petition does not apply.
Effect of Withdrawal of Signatories
A critical fact to consider is whether the withdrawal happened before or after the filing of the petition. If it happened before the filing, the withdrawal is presumed voluntary and it does not affect the propriety of the petition; if after, the withdrawal is deemed involuntary (perhaps pressured by the employer) and it does not necessarily cause the dismissal of the petition
The presumption would arise that the withdrawal was pr oc ur ed th ro ug h du re ss , co er ci on or fo r va lu ab le consideration. In other words, the distinction must be that withdrawals made before the filing of the petition are presumed voluntary unless there is convincing proof to the contrary, whereas withdrawals made after the filing of the petition are deemed involuntary.
The reason for such distinction is that if the withdrawal or retraction is made before the filing of the petition, the names of employees supporting the petition are supposed to be held secret to the opposite party. Logically, any such withdrawal or retraction shows voluntariness in the absence of proof to the contrary.
10. WHEN TO FILE MOTION FOR INTERVENTION? Section 6, Rule V, Book V of the implementing Rules provides that a petition for certification election or a motion for intervention can only be entertained within sixty days prior to the expiry date of an existing collective bargaining agreement. NOTE: Incumbent CBA is an automatic intervenor on the PCE, meaning it need not file a Motion for Intervention.
11. JURISDICTION OF MED ARBITER ON THE ACTION FOR PCE
A Med Arbiter may determine if there is employer-employee relationship and if the voters are eligible.
He will decide whether to grant or deny the PCE.
All issues pertaining to the existence of employer-employee relationship or to eligibility to union membership shall be resolved in the order or decision granting or denying the petition for certification election. In other words, those issues do not stall the PCE and they are not grounds for dismissing a PCE.
It is absurd to suggest that the Med-Arbiter and Secretary of Labor cannot make their own independent finding as to the sentence of such relationship and must have to rely and wait for such a determination by the Labor Arbiter or NLRC in a separate proceeding. For then, given a situation where there is no separate complaint filed with the Labor Arbiter, the Med-Arbiter and/or the Secretary of Labor can never decide a CE case or any labor-management dispute properly brought before them as they have no authority to determine the existence of an employer-employee relationship. Such a proposition is, to say the least, anomalous.
Once there is a determination as to the existence of such a relationship, the med-arbiter can then decide the CE case. As the authority to determine the employer-employee relationship is necessary and indispensable in the exercise of jurisdiction by the Med-Arbiter, his finding thereon may only be reviewed and reversed by the Secretary of Labor who exercises appellate jurisdiction under Article 259 of the LC, as amended. 12. CONSENT ELECTION
Like a CE, its purpose is the same, namely, to find out which union should serve as the bargaining agent. The difference is
that a certification is ordered by the Department while a consent election is voluntarily agreed upon by the parties, with or without the intervention of the Department.
Two or more unions are involved in a consent election. And like certification election, consent election may take place in an unorganized or organized establishment.
13. GROUNDS FOR DISMISSAL ON THE PETITION FOR CERTIFICATION ELECTION (5) (D.O.40-03)
a. Petitioner is not listed in the department’s registry of legitimate labor unions or that its legal personality has been revoked or cancelled with finality;
b. Petition was filed before or after the freedom period of a duly registered CBA, provided that the 60 day period based on the original CBA shall not be affected by any amendment, extension, or renewal of the CBA;
c. Petition was filed within 1 year from entry of voluntary recognition or a valid certification, consent, or run-off election and no appeal on the results thereof is pending;
d. A duly certified union has commenced an sustained negotiations with the employer or there exists a bargaining deadlock which had been submitted to
conciliation or arbitration or had become the subject of a valid notice of strike or lockout to which an incumbent or certified bargaining agent is a party; e. In case of an organized establishment, failure to
submit the 25% support requirement for the filing of the PCE.
14. W H O A R E Q U A L I F I E D T O V O T E I N CERTIFICATION ELECTION?
All employees who are members of the appropriate bargaining unit sought to be represented by the petitioner at the time of the issuance of the order granting the conduct of a certification election shall be eligible to vote.
The list of voters should be based on the employer-certified list of employees in the CBU or payrolls. If the employer does not submit the list or payrolls, the union may submit its own list.
Even the list of employees submitted to the SSS may be used as basis to comprise the list of voters for the CE. “It should ideally be the payroll which should have been used for the purpose of the election. However, the unjustified refusal of a company to submit the payroll in its custody, despite efforts to make it produce it, compelled resort to the SSS list as the next best source of information. After all, the SSS list is a public
record whose regularity is presumed.”
Only the employees who are directly employed by the employer and working along the activities to which the employer is engaged and linked by employer-employee relationship are qualified to participate in the certification election, “irrespective of the period of their employment.”
Employees of an independent contractor who undertakes to do a piece of work for his account and responsibility, with minimum interference on the part of the other contracting party (indirect employer), not being laborers or employees of
the latter, are not qualified to participate therein.
In case of disagreement over the voters' list or over the eligibility of voters, all contested voters shall be allowed to vote. But their votes shall be segregated and sealed in individual envelopes in accordance with Sections 10 and 11 of this Rule.
15. NOTICE OF ELECTION REQUIREMENTS
The Election Officer shall cause the posting of notice of election at least ten (10) days before the actual date of the election in two (2) most conspicuous places in the company premises. The notice shall contain:
(a) the date and time of the election; (b) names of all contending unions;
(c) the description of the bargaining unit and the list of eligible and challenged voters.
The posting of the notice of election, the information required to be included therein and the duration of posting cannot be waived by the contending unions or the employer. It is mandatory.
16. A) GROUNDS FOR CHALLENGING VOTES? An authorized representative of any of the contending unions and employer may challenge a vote before it is deposited in the ballot box only on any of the following grounds:
(a) that there is no employer-employee relationship between the voter and the company;
(b) that the voter is not a member of the appropriate bargaining unit which petitioner seeks to represent.
B) RULES IN CHALLENGING OF VOTES
When a vote is properly challenged, the Election Officer shall place the ballot in an envelope which shall be sealed in the presence of the voter and the representatives of the contending unions and employer. The Election Officer shall indicate on the envelope the voter's name, the union or employer challenging the voter, and the ground for the challenge. The sealed envelope shall then be signed by the Election Officer and the representatives of the contending unions and employer. The Election Officer shall note all challenges in the minutes of the election and shall be responsible for consolidating all envelopes containing the challenged votes. The envelopes shall be opened and the question of eligibility shall be passed upon only if the number of segregated voters will materially alter the results of the election.
17. RULES ON ELECTION PROTEST
Any party-in-interest may file a protest based on the conduct or mechanics of the election. Such protests shall be recorded
in the minutes of the election proceedings. Protests not so raised are deemed waived.
The protesting party must formalize its protest with the Med-Arbiter, with specific grounds, arguments and evidence, within five (5) days after the close of the election proceedings. If not recorded in the minutes and formalized within the prescribed period, the protest shall be deemed dropped.
NOTE: “After the close of election proceedings” means the period from closing of the polls to the counting and tabulation
of the votes.
18. RUN-OFF ELECTION
When an election which provides for three (3) or more choices results in none of the contending unions receiving a majority of the valid votes cast, and there are no objections or challenges which if sustained can materially alter the results, the Election Officer shall motu propio conduct a run-off election within ten (10) days from the close of the election proceedings between the labor unions receiving the two highest number of votes; provided, that the total number of votes for all contending unions is at least fifty (50%) percent of the number of votes cast.
"No Union" shall not be a choice in the run-off election. Notice of run-off elections shall be posted by the Election Officer at least five (5) days before the actual date of run-off election.
---PCE / BAR TO ---PCE / APPEAL
---1. F O U R C O N D IT I O NS B E F O RE R U N - OF F ELECTION MAY BE CONDUCTED
A run-off election is proper if these concurrent conditions exist, namely:
a. a valid election took place because majority of the CBU members voted.
b. the election presented a least three choices, e.g., Union One, Union Two, and No Union, meaning there are at least two union “candidates.” Further, not one of the unions obtained the majority of the valid votes.
c. the total number of votes for all the unions is at least 50% of the valid votes cast.
d. there is no unresolved challenge of voter or election protest.
2. WHO ARE QUALIFIED TO VOTE FOR
CERTIFICATION ELECTION (See No.15, page 10)
3. A) CAN PROBATIONARY OR NON-REGULAR
EMPLOYEES VOTE FOR CERTIFICATION ELECTION?
YES. In a certification election all rank-and-file employees in the appropriate bargaining unit are entitled to vote. This principle is clearly stated in Art. 255 of the Labor Code which states that the "labor organization designated or selected by the majority of the employees in an appropriate bargaining unit shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining."
Collective bargaining covers all aspects of the employment relation and the resultant CBA negotiated by the certified union binds all employees in the bargaining unit. Hence, all rank-and-file employees, probationary or permanent, have a substantial interest in the selection of the bargaining representative. The Code makes no distinction as to their employment status as basis for eligibility in supporting the petition for certification election. The law refers to "all" the employees in the bargaining unit. All they need to be eligible to support the petition is to belong to the "bargaining unit". B) DISMISSED EMPLOYEES WHO FILED PETITION FOR ILLEGAL DISMISSAL?
IT DEPENDS.
An employee who has been dismissed from work but has contested the legality of the dismissal in a forum of appropriate jurisdiction at the time of the issuance of the order for the conduct of a certification election shall be considered a qualified voter, unless his/her dismissal was declared final judgment at the time of the conduct of the certification
election.
In Philippine jurisprudence it is now settled that employees who have been improperly laid off but who have a present, unabandoned right to or expectation of re-employment, are eligible to vote in certification elections. Thus, and to repeat, if the dismissal is under question, as in the case now at bar whereby a case of illegal dismissal and/or unfair labor practice was filed, the employees concerned could still qualify to vote in the elections.
C) MEMBERS OF RELIGIOUS SECT? YES.
In the CE all members of the unit, whether union members or not, have the right to vote. Union membership is not a prerequisite. If majority of the unit members do not want a union, as expressed in the CE, such majority decision must be respected. Logically, the right NOT to join, affiliate with, or assist any union, and to disaffiliate or resign from a labor organization, is subsumed in the right to join, affiliate with, or assist any union, and to maintain membership therein. The right to form or join a labor organization necessarily includes the right to refuse or refrain from exercising said right. It is self-evident that just as no one should be denied the exercise of a right granted by law, so also, no one should be compelled to exercise such a conferred right.
The respondents' argument that the petitioners are disqualified to vote because they "are not constituted into a duly organized labor union" — "but members of the Iglesia Ni Cristo (INC) which prohibits its followers, on religious grounds, from joining or forming any labor organization" — and "hence, not one of the unions which vied for certification as sole and exclusive bargaining representative," is specious. Neither law,
administrative rule nor jurisprudence requires that only employees affiliated with any labor organization may take part in a certification election. On the contrary, the plainly discernible intendment of the law is to grant the right to vote to all bona fide employees in the bargaining unit, whether they are members of a labor organization or not.
D) STRIKING EMPLOYEES?
Strikers are eligible to vote in a certification election because they continue to enjoy employee status during the strike, unless, in the meantime, they are declared to have lost their employee status. (R. Transport Corp. vs. Laguesma)
4. A) IN CASE A VOTE IS CHALLENGED, WHAT SHOULD BE DONE? / RULES ON CHALLENGING OF VOTES?
(See No.16B, Page 10)
5. POSTING OF NOTICE OF ELECTION IS A MANDATORY REQUIREMENT
(See No.15, page 10)
6. GROUNDS FOR CHALLENGING OF VOTES
(See No.16A, Page 10)
7. C A N A C E R T I F IC A TI O N E L E C T I O N B E CONDUCTED DURING A STRIKE?
YES. (Check Asian Design vs. Ferrer-Calleja)
8. A) CAN A LABOR ORGANIZATION FILE A M O T I O N F O R I N T E R V E N T I O N I N UNORGANIZED ESTABLISHMENT?
In unorganized establishments, a legitimate labor organization with substantial interest in the certification election may file a motion for intervention… (Sec. 8, Rule VIII, Book V, Rules Implementing the Labor Code)
B) AT WHAT PERIOD OF TIME?
… at any time prior to the decision of the Med-Arbiter.
9. CAN AN EMPLOYER FILE A PCE?
Yes, in an UNORGANIZED establishment. (Art.258)
10. EXCEPTIONS TO THE BY-STANDER PRINCIPLE By-stander principle may not be applied if the
employer invokes the following grounds to protect his interest: a. Non-existence of Er-Ee relationship between the company and the employees sought to be
b. Petitioning union has no legitimacy or legal personality.
c. Petition is not supported by the written consent of 25% of the employees within the bargaining unit.
d. Bargaining unit being represented by the petitioning union is not an appropriate bargaining unit.
e. Contract-bar rule
f. Voluntary recognition-year bar rule g. Election-year bar rule
h. Negotiation-year bar rule i. Deadlock bar rule
11. CONTRACT BAR RULE (See No.6, page 8)
12. VOLUNTARY RECOGNITION RULE
No PCE may be filed within one year from the date of a valid voluntary recognition.
13. ELECTION YEAR BAR RULE
No PCE may be filed within one year from the date of a valid certification, consent, or run-off election or from the date of voluntary recognition.
14. NEGOTIATION YEAR BAR RULE
A PCE cannot be entertained if, before the filing of the PCE, the duly recognized or certified union has commenced negotiation with the employer in accordance with Art.250. 15. DEADLOCK BAR RULE
A PCE cannot be entertained if before the filing of the PCE, a bargaining deadlock to which an incumbent or certified bargaining agent is a party, had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout. The one-year bar is not necessary.
16. A) APPEAL IN UNORGANIZED ESTABLISHMENT If petition is granted, the case is not subject to appeal. If petition is dismissed, the case is appealable.
B) APPEAL IN ORGANIZED ESTABLISHMENT
Whether petition is granted or dismissed, the case is subject to appeal.
17. TWO MODES OF DETERMINATION OF COLLECTIVE BARGAINING AGENT
a. Certification Election – includes consent, run-off election
b. Voluntary Recognition
18. DEFINITION OF DUTY TO BARGAIN COLLECTIVELY (Art.252)
The duty to bargain collectively means the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an
agreement with respect to wages, hours of work and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreements if requested by either party but such duty does not compel any party to agree to a proposal or to make any concession.
19. ESSENTIAL ELEMENTS IN DUTY TO BARGAIN COLLECTIVELY
(See. No.18 - Art. 252 & No.20A - Art 253)
20. A) WHEN IS THERE A DUTY TO BARGAIN COLLECTIVELY WHEN A CBA EXISTS? (ART. 253)
When there is a collective bargaining agreement, the duty to bargain collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime. However, either party can serve a written notice to terminate or modify the agreement at least sixty (60) days prior to its expiration date. It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties.
B) WHEN THERE IS NO EXISTING CBA? (ART.252) (See No.18)
---THE COLLECTIVE BARGAINING PROCESS
---1. ORGANIZATION (ART.243-248)
Art.243 –Coverage and Employee’s Right to SO Art.244 –Right of Employees in the Public Service
Art.245 – Ineligibility of managerial employees to join any labor organization; Right of Supervisory
Art.246 – Non-abridgement of Right to SO
Art.247 – Concept of ULP and Procedure for Prosecution thereof
Art.248 – ULP of Employers
2. REGISTRATION / AFFILIATION (ART.234-244) Art.234 –Requirements of registration
Art.235 –Action on Application
Art.236 –Denial of Registration; Appeal
Art.237 –Additional requirements for Federations or National Unions
Art.238 –Cancellation of Registration; Appeal
Art.239 –Grounds of Cancellation of Union Registration Art.240 –Equity of the Incumbent
Art.241 –Rights and Conditions of Membership in Labor Org Art.242 –Rights of LLO
Art.243 –Coverage and Employee’s Right to SO Art.244 – Right of Employees in the Public Service
3. DEMAND TO BARGAIN (ART.250 – Procedure in CB)
The ff procedures shall be observed in collective bargaining: a. When a party desires to negotiate an agreement, it
shall serve a written notice upon the other party with a statement of its proposals. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice;
b. Should differences arise on the basis of such notice and reply, either party may request for a conference which shall begin not later than ten (10) calendar days from the date of request;
c. If the dispute is not settled, the Board shall intervene upon request of either or both parties or at its own initiative and immediately call the parties to conciliation meetings. The Board shall have the power to issue subpoenas requiring the attendance of the parties to such meetings. It shall be the duty of the parties to participate fully and promptly in the conciliation meetings the Board may call;
d. During the conciliation proceedings in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes; and
e. The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to a voluntary arbitrator.
Voluntary Recognition
-In Unorganized Establishment
a. Joint statement of fact of voluntary recognition, fact of posting, and fact of only 1 union
b. Notice of Voluntary Recognition with DOLE c. Recording
-Petition for Certification Election a. LLO b. Federation c. Employer 4. NEGOTIATIONS DEADLOCK - Conciliation - Arbitration - Strikes / Lockouts CBA - Signed
- Any agreement on such other provisions of the CBA
entered into within 6 mos. from the date of expiry of the term of such other provisions, shall retroact to the day immediately following such date.
- If any such agreement is entered into beyond 6 mos.,
the parties shall agree on the duration of retroactivity thereof. In case of a deadlock in the renegotiation of the CBA, the parties may exercise their rights under this Code.
- If there’s deadlock – the effectivity date shall be
when the arbitrator renders its final decision. 5. POSTING (ART.231)
6. RATIFICATION
7. REGISTRATION (ART.231)
PURPOSE:Contract Bar Rule
---CERTIFICATION ELECTION PPROCESS
---1. Outline of the Certification Election Process. 1.1. FILING OF PETITION
1.2. HEARING
1.2.1. Motion to Dismiss
1.2.2. Motion to Suspend Proceedings NOTE: GROUNDS FOR SUSPENDING PROCEEDINGS
a. When the union is a company-dominated union, prejudicial question
b. When the legal personality of the union is seriously challenged
1.2.3. Motion for Intervention
1.2.4. Parties may agree to Consent Election NOTE: When the parties agreed to have consent
election, the 3rd step is skipped off. The 4th step – Pre-election Conference follows.
1.3. ISSUANCE OF ORDER / DECISION
4. PRE-ELECTION CONFERENCE
5. POSTING OF NOTICE OF ELECTION
- Mandatory Requirement. 10 Days before the election
6. ELECTION
7. CANVASSING
8. PROCLAMATION
---GRIEVANCE MACHINERY & VOLUNTARY
ARBITRATION
---1. WHAT IS A GRIEVANCE?
A grievance is defined as “any question by either the employer or the union regarding the interpretation or application of the collective bargaining agreement or company personnel policies or any claim by either party that the other party is violating any provision of the CBA or company personnel policies.”
If the term grievance is to be applied in the loose or generic sense, any dispute or controversy respecting terms and conditions of employment which an employee or group of employees may present to the employer can be a grievance, even without a union or CBA.
