Labor Relations Introduction

Labor Relations
• Refers to the interactions between employer and employees or their
representatives and the mechanism by which the standards and other
terms and conditions of employment are negotiated, adjusted and
enforced
The right to self-organize (Art. 257)
• It is the right to form, join, or assist labor organizations for the purpose of collective bargaining
through representatives of their own choosing and to engage in lawful concerted activities for the
same purpose or for their mutual aid and protection.

• So, the right to self-organize has two aspects:

• The right to collectively bargain
• To engage in lawful concerted activities for the same purpose or for their mutual aid and protection

• Reason: Self-help through economic action requires increasing the bargaining power of
employees; hence one of the basic purposes of a labor union is to eliminate competition among
employees in the labor market

• Any employee, whether employed for a definite period or not, shall beginning on the first day of
his service, be eligible for membership in any labor organization.
Who can exercise the right to self-organize?
(Private Sector)
• All persons employed in
• Commercial, industrial and agricultural enterprises (Article 253)
• Religious, charitable, medical, or educational institutions, whether operating for
profit or not (Article 253)
• Employees of government corporations established under the Corporation Code shall
have the right to organize and to bargain collectively with their respective employers.
(Article 254)
• Frontline managers/supervisory employees
• Alien employees
• Working children
• Homeworkers
• Employees of cooperatives
• Employees of legitimate contractors
Supervisors (first line managers)
• No prohibition in the law or IRRs regarding the right of supervisory
employees to organize a labor organization/association.

• Just not allowed to become members of a union composed of rank-

and-file employees.
• What if the union is of mixed membership? (Article 256)
• Not a ground for cancellation of registration of the union.
• Said employees are just automatically deemed removed.
But note that while supervisors cannot be mixed
with rank and file employees to form one union,
they may belong to the same federation.
• ART. 255. [245] Ineligibility of Managerial Employees to Join any Labor
Organization; Right of Supervisory Employees… The rank and file
union and the supervisors' union operating within the same
establishment may join the same federation or national union

• Before, they were not allowed to be part of the same

federation/national union. Previously known as the Separations of
Union Doctrine. This has been amended by R.A. 9481 which now
allows the same.
Alien employees
• Must be able to comply with the following
• Valid working permit with DOLE
• Country of origin must give similar rights to Filipino workers/ratified ILO
convention 87/98 certified by the DFA
Homeworkers
• Have rights to join or assist organizations of their own choosing in
accordance with law. (D.O. 5 of 1992)
Members or employees of cooperatives
• Members of a cooperative have no right to form or join a labor
organization for purposes of bargaining

• Reason: They are themselves co-owners of the cooperative.

• Exception: Not members or co-owners of the cooperative. Even if involved

in management of the cooperative, as long as not an owner of the
cooperative.

• Remedy of a cooperative member who wants to organize?:

withdrawal/resignation from the cooperative.
Employees of legitimate contractors
• An employee of a legitimate job contractor is entitled to all the rights
and privileges due a regular employee as provided in the Labor Code.

• Right can only be invoked against the Independent contractor and not
the principal. (Sec 10 (e), DO. No. 174, Series of 2017)
Workers with no employers
• Ambulant, intermittent, and other workers, the self-employed, rural
works and other workers without definite employers are allowed to
form a labor organization for purposes only of mutual aid and
protection.

• It does not include the right to collectively bargain because obviously

they have no employer to bargain with.
Who can exercise the right to self-organize?
(Public Sector) – Executive Order 180
• Rank and file employees of all branches, subdivisions, instrumentalities and agencies of
government, including government owned and controlled corporation with original charters, can
form, join or assist labor organizations. (Sections 1 and 2 of E.O. 180 (1987))

• The labor organizations in the government sector are technically called as “employees”
organization.

• These are registered with both the Civil Service Commission and the Bureau of Labor Relations
with the DOLE.

• The bargaining union in the govt service is called “accredited employee organization”. The unit
where the said bargaining union operates is the organizational unit.

• But note that while government employees may be allowed to form labor organizations, as
compared to private employees they have limitations.
The right to strike is not available to
government employees
• CSC Memorandum Circular No. 6, s. 1987

• Reason: It undermines and prejudices the government system and

results in a stoppage/disruption of public services.
Persons who cannot exercise the right to self
organization (private sector)
• Managerial employees (Article 255)

• Confidential employees
Persons who cannot exercise the right to self
organization (public sector)
• High level employees whose functions involve policy making or
managerial in nature or whose duties are highly confidential in nature

Sec 4 of EO 180
• Members of the AFP
• Police officers
• Firemen
• Jail guards
Ineligibility of managerial employees
• 3 types of managerial employees

• Top management – responsible for overall management of the organization

and its interactions with the environment
• CEOs
• Presidents
• SVPs

• Middle management – direct activities of other managers.

• First line manager/supervisors – manages direct operating employees only

and do not supervise other managers.
La Salle University Medical Center and College
of Medicine v. Laguesma
• Top and middle managers are not able to form labor organizations

• Supervisory or first level managers may organize own union but

cannot join the rank-and-file union
• Reason: Conflicting interests of these groups. (La Salle University Medical
Center and College of Medicine v. Laguesma)
• Supervisory employees have the right to self-organization as do other
classes of employees save only managerial ones. The Constitution states
that "the right of the people, including those employed in the public and
private sectors, to form unions, associations or societies for purposes not
contrary to law, shall not be abridged.

• Art. 245 of the Labor Code now provides for the right of supervisory
employees to self-organization, subject to the limitation that they cannot
join an organization of rank-and-file employees.
• Supervisory employees shall not be eligible for membership in a labor organization
of the rank-and-file employees but may join, assist or form separate labor
organizations of their own.
Reason for segregation as held in La Salle v.
Laguesma
• The reason for the segregation of supervisory and rank-and-file
employees of a company with respect to the exercise of the right to
self-organization is the difference in their interests. Supervisory
employees are more closely identified with the employer than with
the rank-and-file employees.

• If supervisory and rank-and-file employees in a company are allowed

to form a single union, the conflicting interests of these groups
impair their relationship and adversely affect discipline, collective
bargaining and strikes
Confidential employees
• These are persons who:
• Assist or act in a confidential capacity AND
• To persons or who formulate, determine, and effectuate management policies
in the field of labor relations

• He can even be a rank and file or supervisory employee who in the

course of employment becomes aware and handles management
policies relating to labor relations (“The confidential employee rule”) -
San Miguel Corp Supervisors and Exempt Employees Union v.
Laguesma)
San Miguel Corp Supervisors and Exempt
Employees Union v. Laguesma
• This Court rules that said employees do not fall within the term
"confidential employees" who may be prohibited from joining a union.
There is no question that the said employees, supervisors and the exempt
employees, are not vested with the powers and prerogatives to lay down
and execute management policies and/or to hire, transfer, suspend, layoff,
recall, discharge or dismiss employees

• An important element of the "confidential employee rule" is the

employee's need to use labor relations information (not just merely
confidential information). Thus, in determining the confidentiality of
certain employees, a key question frequently considered is the employee's
necessary access to confidential labor relations information
• Mere access to confidential labor relations information however which is incidental to his duties,
and therefore, said knowledge is not necessary in performance of said duties, does not make the
person a confidential employee.

• The information managed must be those confidential information relating to the field of labor
relations.

• Granting arguendo that an employee has access to confidential labor relations information but
such is merely incidental to his duties and knowledge thereof is not necessary in the performance
of such duties, said access does not render the employee a confidential employee.

• If access to confidential labor relations information is to be a factor in the determination of an

employee's confidential status, such information must relate to the employer's labor relations
policies
• It is evident that whatever confidential data the questioned employees
may handle will have to relate to their functions. From the foregoing
functions, it can be gleaned that the confidential information said
employees have access to concern the employer's internal business
operations.

• In the case at bar, supervisors 3 and above may not be considered

confidential employees merely because they handle "confidential data" as
such must first be strictly classified as pertaining to labor relations for them
to fall under said restrictions. The information they handle are properly
classifiable as technical and internal business operations data which, to
our mind, has no relevance to negotiations and settlement of grievances
wherein the interests of a union and the management are invariably
adversarial
Sugbuanon Rural Bank v. Laguesma
• First, they were not managerial employees. In the present case, petitioner failed to
show that the employees in question were vested with similar powers. At best they
only had recommendatory powers subject to evaluation, review, and final decision by
the bank's management. The job description forms submitted by petitioner clearly
show that the union members in question may not transfer, suspend, lay-off, recall,
discharge, assign, or discipline employees

• Petitioner contends that it has only 5 officers running its day-to-day affairs. They
assist in confidential capacities and have complete access to the bank's confidential
data.
• The Cashier is one of the approving officers and authorized signatories of petitioner. He approves
the opening of accounts, withdrawals and encashment, and acceptance of check deposits. He
deals with other banks and, in the absence of the regular Manager, manages the entire office or
branch and approves disbursements of funds for expenses; and
• As secretary of the bank's governing body. Patricia Maluya serves the
bank's management, but could not be deemed to have access to
confidential information specifically relating to SRBI's labor relations
policies, absent a clear showing on this matter. Thus, while petitioner's
explanation confirms the regular duties of the concerned employees, it
shows nothing about any duties specifically connected to labor relations.

• Hence, a cashier who serves as secretary of the board of directors is not a

confidential employee. While the board itself is in charge of corporate
policies, the secretary could not be considered as a person who had access
to labor relations information required of her to perform her duties as a
secretary.
But the disqualification of confidential
employees is not provided in Article 255.
• ART. 255. [245] Ineligibility of Managerial Employees to Join any Labor
Organization; Right of Supervisory Employees.– Managerial
employees are not eligible to join, assist or form any labor
organization…

• It emanates from the doctrine of necessary implication.

• By necessary implication, confidential employees are disqualified because
they are similarly situated to managerial employees.
• Like managerial employees, allowing them to join a union might jeopardize
the interest which they are duty bound to protect.
Confidential employees who are not allowed
to join unions based on jurisprudence
• Division secretaries, all staff of general management etc.
• Legal secretaries who are tasked to type legal documents
• Executive secretaries

• The defining question here is if the employee, in the course of their

duties, has access to confidential information relating to labor
relations, required to perform her duties.

• If yes – then confidential employee

Confidential employees allowed to join unions
• Fil-oil Refinery Corp v. Fil Oil Supervisory and Confidential Employees
Association
• When the confidential employees are few in number; AND
• By practice and tradition, identify with supervisors in their roles as
representatives of management vis-à-vis the rank and file employees.
• Reason for allowance: Although named as confidential employees, they are
not performing managerial functions.
Rights of union members (Art. 250)
• Fiscal rights
• No arbitrary or excessive initiation fees shall be required of the members of
a legitimate labor organization nor shall arbitrary, excessive or oppressive fine
and forfeiture be imposed;

• The members shall be entitled to full and detailed reports from their officers
and representatives of all financial transactions as provided for in the
constitution and by-laws of the organization

• Every payment of fees, dues or other contributions by a member shall be

evidenced by a receipt signed by the officer or agent making the collection
and entered into the record of the organization to be kept and maintained for
the purpose;
Fiscal rights
• The funds of the organization shall not be applied for any purpose or
object other than those expressly provided by its constitution and by-laws
or those expressly authorized by written resolution adopted by the
majority of the members at a general meeting duly called for the purpose;

• Every income or revenue of the organization shall be evidenced by a record

showing its source, and every expenditure of its funds shall be evidenced
by a receipt from the person to whom the payment is made, which shall
state the date, place and purpose of such payment. Such record or receipt
shall form part of the financial records of the organization.
Fiscal rights

• No special assessment or other extraordinary fees may be levied

upon the members of a labor organization unless authorized by a
written resolution of a majority of all the members in a general
membership meeting duly called for the purpose.

• Other than for mandatory activities under the Code, no special

assessments, attorney’s fees, negotiation fees or any other
extraordinary fees may be checked off from any amount due to an
employee without an individual written authorization duly signed by
the employee
Right to information
• (l) The treasurer of any labor organization and every officer thereof
who is responsible for the account of such organization or for the
collection, management, disbursement, custody or control of the
funds, moneys and other properties of the organization, shall render
to the organization and to its members a true and correct account of
all moneys received and paid by him since he assumed office or since
the last day on which he rendered such account, and of all bonds,
securities and other properties of the organization entrusted to his
custody or under his control.
• At least once a year within 30 days after close of fiscal year and as such other
times as may be required by majority through a resolution
Rights to information
• The account shall be duly audited and verified by affidavit and a copy thereof
shall be furnished the Secretary of Labor.

• The books of accounts and other records of the financial activities of any labor
organization shall be open to inspection by any officer or member thereof during
office hours;

• It shall be the duty of any labor organization and its officers to inform its
members on the provisions of its constitution and by-laws, collective bargaining
agreement, the prevailing labor relations system and all their rights and
obligations under existing labor laws.

• Right to seek investigaton of any irregularity

Political rights
• Right to be vote and be voted for as an officer of the union

• Right to be appointed to appointive positions in the organization

Right to participate in decision making
• Right to vote by secret ballot on any major question of major policy
affective the entire membership of the organization

• Right to initiate and participate in impeachment or expulsion

proceedings against an erring officer or member of the union.
Mode of creating a labor
organization
Categories of labor Organizations
• Generally, we have two types
• National Union
• Independent Union or Local Union
Independent union - Section 1[ll], Rule I, DOLE
Department Order No. 40, Series of 2003, as
amended by A-I
• Refers to a labor organization operating at the enterprise level that
acquired legal personality through independent registration
National Union or Federation - Section 1[ll], Rule I,
DOLE Department Order No. 40, Series of 2003, as
amended by A-I
• Refers to a group of legitimate labor unions in a private establishment
organized for collective bargaining or for dealing with employers
concerning terms and conditions of employment for their member
unions or for participating in the formulation of social and
employment policies, standards and programs, registered with the
Bureau
Trade Union
• Organization made up of workers which aims to protect and advance
the interests of its members in the workplace. Most trade unions are
independent of any employer.
There are two modes of creating a labor
organization
• Independent registration (Art. 240)
• A federation, national union or industry or trade union center or an
independent union shall acquire legal personality and shall be entitled to the
rights and privileges granted by law to legitimate labor organizations upon
issuance of the certificate of registration
• Chartering of local chapter/chartered local (Art 241)
• A duly registered federation or national union may directly create a local
chapter by issuing a charter certificate indicating the establishment of the
local chapter…

• The chapter shall be entitled to all other rights and privileges of a legitimate
labor organization only upon the submission of additional documents, which
include
• Names of the chapter's officers, their addresses, and the principal office of the chapter;
and
• Chapter's constitution and by-laws: Provided, That where the chapter’s constitution and
by-laws are the same as that of the federation or the national union, this fact shall be
indicated accordingly
A trade union may be created independently but it
cannot create a local chapter/chartered local
• Trade union – organization made up of workers which aims to protect
and advance the interests of its members in the workplace. Most
trade unions are independent of any employer.

• While now recognized as a legitimate labor organization under Article

240, Art. 241 does not expressly allow these trade unions to create
local chapters as opposed to Federations/National Unions. (San
Miguel Corp Employees Union-PWTGO vs. San Miguel Packaging
Products Employees Union-PDMP)
Independent Union vis-à-vis Chartered Local
CRITERIA INDEPENDENT UNION LOCAL CHAPTER/CHARTERED
LOCAL
Relationship to federation or Affiliate Charter Local
national union/proper
denomination of union
The Independent union is the Same
Nature of contractual relationship principal while the Federation is
the Agent
Documentary proof of relationship Contract of Affiliation Charter Certificate
Dependency of association with No legal effect Legal personality is dependent and
federation co-terminous with its creator
Effecty of disaffiliation No legal effect Ceases to have legal personality;
must obtain independent
registration before disaffiliation
The Bargaining Unit
The Bargaining Unit

• A bargaining unit/collective bargaining unit refers to a group of

employees sharing mutual interest within a given employer unit,
comprised of all or less all the entire body of employees in the
employer unit or any specific occupational or geographical grouping
within such employer unit.

• Main purpose: Is to negotiate for better terms of wages, hours of

work, working conditions.
Tests to determine a CBU
• Jurisprudence has provided us with the tests to determine the
appropriate CBU.
• Community or mutuality of interest doctrine
• Globe doctrine
• Collective bargaining history doctrine
• Employment status doctrine
Community or mutuality of interest doctrine
• Employees sought to be represented by the collective bargaining
agent must have community or mutuality of interest in terms of
• Employment
• Working conditions.

• Characterized by similarity in
• Employment status
• Same duties and responsibilities
• Similar compensation and working conditions
St. James School of Quezon City v. Samahang
Manggagawa sa St. James School of Quezon City
• In St. James School of Quezon City v. Samahang Manggagawa sa St. James School of
Quezon City, the Court allowed the respondent union to represent the rank and file
employees consisting of motor pool, construction and transportation employees, who
were about 149 in number, to the exclusion of the administrative, teaching, and office
personnel, for purposes of filing the petition for certificate election.

• These administrative, teaching, and office personnel had no mutuality of interests with
these motorpool, construction, and transportation employees.

• The members of Samahang Manggagawa are employees in the Tandang Sora campus.
Under its constitution and by-laws, Samahang Manggagawa seeks to represent the
motor pool, construction and transportation employees of the Tandang Sora campus.
Thus, the computation of the quorum should be based on the rank and file motor pool,
construction and transportation employees of the Tandang Sora campus and not on all
the employees in St. James’ five campuses
Globe Doctrine (Will of the employee’s
doctrine)
• Based on the will of the employees, the principle provides that in
defining the appropriate bargaining unit, the same depends on the
desire of the workers to be part of one or separate or distinct
bargaining units.

• In International School Alliance of Educators vs. Quisumbing, the High

Court ruled that foreign hired teachers do not belong to the
bargaining unit of local hires because they plainly did not indicate
their intention to be grouped with the local hires for purposes of
collective bargaining.
International School Alliance of Educators vs.
Quisumbing
• It does not appear that foreign-hires have indicated their intention to be grouped
together with local-hires for purposes of collective bargaining. The collective
bargaining history in the School also shows that these groups were always treated
separately.

• Although foreign-hires perform similar functions under the same working

conditions as the local-hires, foreign-hires are accorded certain benefits not
granted to local-hires. These benefits, such as housing, transportation, shipping
costs, taxes, and home leave travel allowance, are reasonably related to their
status as foreign-hires, and justify the exclusion of the former from the latter.

• To include foreign-hires in a bargaining unit with local-hires would not assure

either group the exercise of their respective collective bargaining rights.
Collective Bargaining History Doctrine
• In the Quisumbing case, the collective bargaining history was also
considered because the two types of hires were historically always
shown to be treated separately.

• Note however, as compared to other tests, this doctrine has been

held as to be not as decisive/conclusive in the determination of the
appropriate bargaining unit.
San Miguel Corporation v. Laguesma. G.R. No.
100485.
• Despite the previous collective bargaining history having a separate
bargaining unit for each sales office, the SC applied the principle of
mutuality or commonality of interests instead in holding that the
appropriate bargaining unit was composed of all sales force in the Norther
Luzon, and not based on each sales office.

• In the case at bench, respondent union sought to represent the sales

personnel in the various Magnolia sales offices in northern Luzon. There is
similarity of employment status for only the regular sales personnel in the
north Luzon area are covered. They have the same duties and
responsibilities and substantially similar compensation and working
conditions. Hence, there is commonality/mutuality of interest.
Employment Status Doctrine
• Depends on the employment status of the employees.

• For example, casual employees and those employed on a day-to day

basis do not have the mutuality or community of interest with regular
and permanent employees. Hence, inclusion in the bargaining unit
composed of the latter in the former is not justified.
Belyca Corporation vs. Ferrer
• A corporation was engaged in piggery and poultry raising, planting of
agricultural crops and at the same time, operation of supermarts and
cinemas.

• Respondent ALU seeks direct certification as the sole and exclusive

bargaining agent of all the rank-and-file workers of the livestock and
agro division of petitioner BELYCA Corporation (Rollo, p. 232), engaged in
piggery, poultry raising and the planting of agricultural crops such as
corn, coffee and various vegetables (Rollo, p. 26). But petitioner contends
that the bargaining unit must include all the workers in its integrated
business concerns ranging from piggery, poultry, to supermarts and
cinemas so as not to split an otherwise single bargaining unit into
fragmented bargaining units
• The SC ruled that these two classes clearly perform work entirely
different from each other.

• Under the circumstances of that case, the Court stressed the

importance of the fourth factor and sustained the trial court's
conclusion that two separate bargaining units should be formed in
dealing with respondent company, one consisting of regular and
permanent employees and another consisting of casual laborers or
stevedores. Otherwise stated, temporary employees should be
treated separately from permanent employees
• it is beyond question that the employees of the livestock and agro
division of petitioner corporation perform work entirely different
from those performed by employees in the supermarts and cinema.

• The differences in working conditions, hours of work, rates of pay,

position and employment status means that they cannot be grouped
together in one bargaining unit.

• But more importantly, this Court laid down the test of proper
grouping, which is community and mutuality of interest.
The Bargaining
Representative
SOLE AND EXCLUSIVE BARGAINING AGENT
(SEBA)
• Refers to a legitimate labor union duly certified as the sole and exclusive
bargaining representative or agent of all the employers in a collective
bargaining unit (CBU)

• Effect of certification: Shall remain as such during the existence of the

collective bargaining agreement, to the exclusion of all other labor
organizations existing and operating in the same CBU. The SEBA represents
not only its members but the members of other unions (minority) within
the same CBU (Article 265)

• No petition for certification election questioning its majority status or any

certification election shall be conducted before the expiry of the 5-year
term of the CBA.
Exceptions to the exclusivity rule
• Individual employees and group of employees, regardless if they are
members or nonmembers of the SEBA, may exercise their right to
present grievances directly to the employer, with or without the
consent, participation or intervention of the SEBA.

• Exception to the exception: Note that these employees cannot bring

their grievances through the official CBA grievance machinery, and if
unsettled elevate it to voluntary arbitration without participation of
the SEBA (Tabigue v. International Copra Export Corporation)
Tabigue
• Members of the union went directly to the employer and bypassed
INTERCO (the SEBA). The members, without participation of the union,
filed a notice of preventive mediation with the NCMB, alleging several
violations of the CBA.

• As parties failed to reach a settlement before the NCMB, the NCMB

recommended elevating the matter to the Voluntary Arbitrator.

• The employees attempt to rely on Art. 255 of the LC

• Art. 255. The labor organization designated or selected by the majority of the
employees in an appropriate collective bargaining unit shall be the exclusive
representative of the employees in such unit for the purpose of collective
bargaining. However, an individual employee or group of employees shall have the
right at any time to present grievances to their employer.
• SC said that it was not proper to elevate the matter to the voluntary
arbitrator because petitioners were not duly authorized to represent
union. Hence, they cannot present their unsettled claims through
voluntary arbitration.

• This Court is not persuaded. The right of any employee or group of

employees to, at any time, present grievances to the employer does
not imply the right to submit the same to voluntary arbitration
Modes of determining the SEBA
• Request for SEBA certification ( Section 3, Department Order No. 40-I-
15, Series of 2015)

• Certification Election (RULE VIII, DO No. 40-03 as amended by

Department Order No. 40-I-15, Series of 2015)

• Run-off Election (RULE X, DO No. 40-03 as amended by Department

Order No. 40-I-15, Series of 2015)

• Re-run election (Department Order No. 40-I-15)

1. Request for SEBA Certification (DO 40-I-15)
• Repealed rules on voluntary recognition in Book V of the Labor Code’s
implementing rules

• Reason: In inter-union disputes, the employer is a mere bystander

and should not oppose in any way a petition for certification election.
• Its role is limited to being notified of the filing of the PCE; and
• Submitting list of employees during the pre-election conference, should the
med-arbiter act favorably on the PCE.
Where is the request filed?
• Any legitimate labor organization may file a request in:
• DOLE Regional office which issued its certificate of registration – if it is an
independent union
• DOLE Regional office which issued to it its certificate of creation of charted
local
Action on request
• Within one day from submission of the request, the DOLE regional
director
• Determines if request is compliant and whether the bargaining unit is
organized or not
• Request a copy of the payroll for purposes of SEBA certification

• If deficient, DOLE Regional Director advises the union/local chapter to

comply within 10 days from notice. Failure to comply results in
withdrawal of notice.
3 scenarios can occur involving the request for
certification
• Request for certification in an unorganized establishment with only
one legitimate union (Section 4 of DO 40-1-15)

• Request for certification in an unorganized establishment with more

than one legitimate union (Section 5)

• Request for certification in an organized establishment (Section 6)

 Before understanding these scenarios, we need to
understand the definitions of unorganized and
organized establishments
• Organized – enterprise where there exists a SEBA, regardless of
whether a CBA has been concluded or not by such SEBA with the
employer

• Unorganized – company where there is no certified SEBA. These

includes situations:
• Even if there are several unions in existence in one CBU for as long as not one
of them has been certified SEBA
• Even if one CBU has a certified SEBA, but the other CBUs do not have. Those
CBUs that do not have SEBA are considered unorganized.
Scenario 1: Unorganized establishment with
only one legitimate union
• Calls a conference within 5 working days for the submission of:
• Names of employes in the covered bargaining unit who signify support for
SEBA certification. Must be majority of employees in unit.
• Certification under oath by president of union/chapter that documents
submitted are true and correct based on personal knowledge.

• Presumed to be true and correct unless contested under oath by any

member of the bargaining unit during validation conference
Scenario 1: Unorganized establishment with
only one legitimate union
• Employer deemed a bystander to the process of certification

• Failure to complete requirements during conference -> referred to the

election officer for conduct of certification election.

• Complete requirements - > issue a certification as SEBA to the

requesting union
• Effect: Becomes the exclusive bargaining agent of all the employees in the
covered bargaining unit.
Scenario 1: Unorganized establishment with
only one legitimate union
• Certification year bar rule – bars the filing of a petition for
certification election by any labor organization for a period of 1 year
from date of issuance.

• It is only after expiration of the period can a PCE be filed in the same
CBU represented by the certified SEBA for purposes of challenging the
majority status of the SEBA.
• Exception: If CBA has already been issued between employer and SEBA and
registered with regional office. Hence, the bar can exceed one year.
Scenario 2: Unorganized establishment with
more than one legitimate union (Sec. 5)
• DOLE Regional Director refers same to election officer for conduct of
a certification election (Rule IX, Rules on Conduct of a Certification
Election)
Scenario 3: Request for certification in an
organized establishment
• Shall refer to Med-arbiter for the propriety of conducting a
certification election in accordance with Rule VIII and IX of the rules.
Relevance and summary of certification
election under the three scenarios
• The certification election is relevant in cases when
• there are more than one labor organization in an unorganized establishment
(referred to election officer); or
• When the establishment is organized (referred to med-arbiter)

• When there is one legitimate labor organization in an unorganized

establishment, referral to the conduct of a certificate election is not
automatic.
• It is only when the requesting union or local chapter FAILS to complete the
SEBA certification requirements shall it be referred to the ELECTION OFFICER
for the conduct of certification election
2. Certification election (Rule 1, Book V of the Rules
to Implement the Labor Code, amended by DO 40-
03)
• Process of determining through secret ballot the SEBA of the
employees in an appropriate CBU for purposes of collective
bargaining.
National Federation of Labor v. The Secretary
of Labor (Nature of the certification election)
• The complaint in this case was that a number of employees were not
able to cast their votes because they were not properly notified of the
date. They could not therefore have filed their protests within five (5)
days.

• At all events, the Solicitor General states, that the protests were not
filed within five (5) days, is a mere technicality which should not be
allowed to prevail over the workers' welfare.
• Nature: Not a litigation but a mere investigation of a non-adversary
fact-finding character in which the DOLE plays the part of a
disinterested investigator seeking to ascertain the exclusive
bargaining agent.

• Hence, not bound by technical rules of evidence. In case of doubt,

PCE should be resolved in favor of the holding of a certification
election (National Federation of Labor v. The Secretary of Labor)
• As this Court stressed in LVN Pictures, Inc. v. Phil. Musicians Guild, it
is essential that the employees must be accorded an opportunity to
freely and intelligently determine which labor organization shall act in
their behalf.

• The workers in this case were denied this opportunity. Not only were
a substantial number of them disenfranchised, they were, in addition,
allegations of fraud and other irregularities which put in question the
integrity of the election. Workers wrote letters and made complaints
protesting the conduct of the election.
• Indeed, the policy of the Labor Code favors the holding of a
certification election as the most conclusive way of choosing the labor
organization to represent workers in a collective bargaining unit.

• In case of doubt, the doubt should be resolved in favor of the

holding of a certification election.
Who can file a PCE? (Rule VIII, DO 40-1-15)
• 1. Legitimate labor organization
• National union or federation that has issued a charter certificate to local
chapter. Union files on behalf of local chapter
• The local chapter itself if it has been issued charter certificate by its national
union
• Independently registered union

• 2. Employer, when requested to bargain collectively in a bargaining

unit where no registered CBA exists.
Bystander rule
• In all cases, whether PCE is filed by an employee or a labor
organization, employer is not considered a party thereto with a right
to oppose the PCE.

• Rights are limited to:

• Being notified or informed of petitions of such nature; and
• Submission of a list of employees during the pre-election conference should
the med-arbiter acts favorably on the petition.
Where to file the PCE
• Dole regional office which issued petitioning union’s certificate of
registration or certificate of creation

• The PCE shall be heard and resolved by the Med-Arbiter.

Labor Official involved in the PCE process.
• Heard and resolved by
• The mediator-arbiter

• Conduct of actual election

• Election officer – office of the BLR or the Labor Relations Division in the DOLE
Regional Office.
Certification elections happen in two types of
establishments
• Organized
• Unorganized
Certification election in unorganized
establishments (Article 269 of the Labor Code)
• In any establishment where there is no certified bargaining agent, a
certification election shall automatically be conducted by the Med-
Arbiter.

• Upon the filing of a petition by

• any legitimate labor organization, including a national union or federation
which has already issued a charter certificate to its local/chapter participating
in the certification election;
• or a local/chapter which has been issued a charter certificate by the national
union or federation
Certification election in organized
establishments (Article 268 of the Labor Code)
• Who conducts: Med-arbiter

• When conducted: Automatically orders conduct of the certification

election by secret ballot as long as the following requisites are met:
1. PCE questioning the majority status of the bargaining agent is filed before the
med-arbiter with the 60-day freedom period before the expiration of the
collective bargaining agreement.

2. PCE is verified
• President – in case of labor organization
• President – in case federation/national union
• President of company, if filed by employer.

3. PCE supported by 25% written consent of all employees in the CBU

3. PCE supported by 25% written consent of all
employees results in the automatic conduct of the
election
• Purpose of requiring 25%: ensures that the petitioning union has a
substantial interest in the representation proceedings. Hence, once the
25% threshold is reached, it is MANDATORY for the Med-Arbiter to the
holding of the certificate election.

• Note that it does not mean that just because the 25% is not reached, the
Med-Arbiter cannot conduct a CE. He is still empowered to do so when
there are contending labor organizations hoping to be the SEBA.

• Hence, the 25% requirement is not strictly enforced. It is a mere

technicality which should be employed in determining the true will of the
workers instead of frustrating it.
Grounds for denial of the PCE (Sec 14, Rule VIII IRR
of the Labor Code, amended by DO No. 40-F-03)
• The Med Arbiter may dismiss the PCE on any of the following grounds:
• Petitioning union/national union/federation is not registered as a legitimate labor
union/registration cancelled with finality
• Failure of local chapter/chartered local/national union/federation to submit a charter
certificate upon filing of PCE
• Failure to submit the 25% consent signature requirement (for organized
establishments)
• Non-appearance of petitioner for 2 consecutive scheduled conferences before med
arbiter despite due notice
• Absence of EE-ER relationship between ALL members of the petitioning union and
establishment where the proposed CBU is sought to be represented.
• Violation of the BAR RULES
Bar Rules
1. The Contract bar rule (Sec 4, DO 40-I-15)
• When there is an existing CBA, no PCE can be filed.

• Neither party can likewise terminate the CBA during its lifetime.

• Duration of the contract bar: 5 year lifetime of the CBA. No PCE shall be
conducted by DOLE outside the 60 day freedom period immediately
before the date of expiry of such term of the CBA

• At the expiration of the 60 day freedom period, the employer should

continue to recognize the majority status of the incumbent bargaining
unit when no PCE challenging majority status is filed by any other union.
(Art. 269 of the LC)
When contract bar rule does not apply
• The 60 day Freedom period
• CBA is not registered with BLR/DOLE
• CBA, although registered, contains provisions below labor standards.
• Documents supporting CBA falsified/fraudulent
• CBA is incomplete; does not contain mandatory provision that the alw
requires
• CBA entered prior to the 60 day freedom period; considered that the
CBA is hastily entered.
• When CBA no longer fosters industrial peace (Foamtex v. BLR)
Foamtex v. BLR
• The contract bar rule is intended to promote stability and fairness in
collective bargaining agreements. There are certain types of contracts,
however, which have been excepted from the operation of the contract bar
rule. Among these are contracts which do not foster industrial peace and
stability such as contracts where the Identity or existence of the
representation is in doubt.

• A contract does not operate to bar representation proceedings where, as a

result of a schism in the union, the contract can no longer serve to
promote industrial stability. In such a situation, the contract is no longer a
stabilizing force and there is, therefore, no warrant for denying to the
employees the immediate exercise of their right to select their
representative
Other instances when contract bar rule does
not apply
• When there is an automatic renewal clause in the provision in the
CBA, but employer filed a manifestation with the BLR of its intention
to terminate because the SEBA does not represent anymore the
majority of the workers of the bargaining unit.

• When nature of operation substantially changes between execution

of the CBA and filing of the PCE.
• Mergers/consolidation of two or more operations resulting in personnel
changes
• Resumption of operations after indefinite period of closing with new
employees
Rules on premature negotiation of the CBA
• When is it considered pre-mature negotiation
• If CBA is concluded prior to freedom period
• When there is a pending PCE filed by the rival union.
• Reason: Premature because it should have been concluded only when the union has
already been re-certified as SEBA.
• Effect: Newly renegotiated CBA cannot be invoked as a valid bar even if ratified
unanimously or by majority of the employees in the CBU.

• If no PCE filed by rival union before and during freedom period

• The CBA is valid. The fact of early renegotiation and conclusion alone will not in any way
invalidate the CBA
 2. Statutory Bar Rule (Section 3(a), Rule VIII, Book
V of the IRR of the Labor Code, amended by DO
40-03)
• No PCE shall be filed within a period of one year from the date of valid
conduct of a certification, consent, run-off, or re-run election, where no
appeal on the results were made.

• If appeal was made from the order of the Med-Arbiter, the running of the 1
year period is suspended until decision on appeal has become final and
executory.

• Note that the statutory bar rule applies in cases where there is no SEBA
certified after the conduct of election. If there was a SEBA certification it is
instead called the certification year bar rule.
Reckoning of the statutory bar rule
• Actual date of the prior election.

• Involves a situation where there was a prior election which resulted in

“no union.” Hence, the one-year period runs from the date of the
conduct of that election.
3. Certification Year Bar Rule (Section 14(d), Rule
VIII, Book V, IRR of the Labor Code amended by DO
40-F-03
• Reckoned from either
• the date of the SEBA certification by the DOLE Regional Director in
unorganized establishments with only one 1 legitimate labor organization; or

• From date of issuance of certification as SEBA (organized establishment)

• Effect if no CBA is negotiated within the 1-year period

• If SEBA fails to commence the CBA process within this 1 year period, its being
SEBA may be questioned by another union through the filing of PCE
Interruption of the 1-year period for the
certification year bar rule
• Where an appeal has been filed from the order of the Med Arbiter
certifying the results of the election, the running of the 1-year period
is deemed suspended until decision on appeal has become final and
executory.
4. Negotiations Bar Rule (Section 3(b), Rule VIII,
Book V, IRR of the LC, amended by DO 40-03
• No PCE shall be entertained from the moment the SEBA and the
employer have commenced and sustained negotiations in good faith
in accordance with Article 261 of the LC Within a period of ONE YEAR
• From the date of a valid certification, consent, run-off, or re-run election; or
• From the time a SEBA certification is issued in cases of request for SEBA
certification.

• Once negotiates start, there is no period of limitation to reckon

anymore. The negotiation can last for days, weeks, months, even
years, and no PCE can be filed in any of these time frames.
5. Bargaining deadlock Bar Rule (Section 14(e),Rule
VIII, Book V, IRR of the LC, DO No. 40-F-03
• Bargaining Deadlock – situation where there is a failure of collective
bargaining negotiations between the SEBA and the employer resulting in a
stalemate.

• Situation: Despite efforts at bargaining in good faith, parties have failed to

resolve issues and there are no other definite options to break the
standoff.

• Under the rule, a PCE may not be entertained when a bargaining deadlock
to which an incumbent SEBA is a party has been submitted to conciliation,
compulsory or voluntary arbitration or has become a valid notice of a
strike or lockout
The rule on bargaining deadlock applies even if
there is no actual bargaining deadlock, but there
are circumstances similar to bargaining deadlock
• In the case of Capitol Medical Center v. Laguesma, the SEBA submitted its
proposals to the employer but the employer refused to negotiate.

• The SEBA then went on strike. The DOLE Secretary assumed jurisdiction
and referred the matter to the NLRC for compulsory arbitration.

• 1 year passed without having any CBA negotiation, a contending union files
a PCE. As a ground, the contending union, cites the fact that more than 12
months have elapsed since the last certification election and no CBA
negotiations still.
• SC said the filing of the contending union of the PCE cannot prosper
because what happened in this case is worse than a bargaining deadlock as
the employer used all means to block the certification of respondent as the
bargaining agent.

• It is only equitable therefore that the circumstances in this case be

considered similar to a bargaining deadlock, where no certification election
could be held.

• A contrary ruling would open the floodgates to cases where the employer
blocks the SEBA from negotiating a CBA.
When the bargaining deadlock rule is not
applicable
• In Kaisahan ng Manggagawa v. Trajano, as cited in CMC v. Laguesma, a
SEBA which has not taken legal steps to compel the employer to
bargain collectively, like where there was no strike or lockout, or
when the issue has not been submitted to conciliation and mediation,
cannot hide under the guise of the bargaining deadlock rule.

• Unlike in the case of Capital Medical Center, where there was proof
in that case that the SEBA had taken action to legally coerce the
employer to comply with its statutory duty to bargain collectively i.e.
by charging employer with an unfair labor practice, conducting a
strike/protest.
The Double Majority Rule
• The process of a certification election requires the application of the
double majority rule.
• First majority: Majority of all eligible voters in the bargaining unit should have
cast their votes. The first majority is essential to start of the process of the
certificate election

• Second Majority: Majority of the valid votes cast results in the certification as
the SEBA

• Example: if there are 100 employees in a bargaining unit

• At least 51 must vote to satisfy the first majority
• Then out of the 51, at least 26 must vote for one union so that it can be certified as the
SEBA, thereby satisfying the second majority.
Note that an employee does not have to be forced
to pick a union; he can choose “No union”
• If the No union choice obtains the majority, no SEBA shall be
proclaimed and the statutory bar rule shall take effect, reckoned from
the conduct of the election.
Who are eligible voters for purposes of
participating in a certification, consent, run-off, or
re run election?
• Eligible voter – a voter belonging to the appropriate CBU that is
subject of a petition for certification, consent, run-off, or rerun
election.

• All employees who are members of the appropriate CBU 3 MONTHS

prior to the filing of the petition/request shall be eligible to vote.
Eligibility of dismissed employees to vote
• An employee who has been dismissed but contested the legality of
the dismissal in a forum of appropriate jurisdiction at the time of the
of the issuance of the order for the conduct of a certification election
CAN VOTE. (Yokohoma Tire Philippines, Inc. v. Yokohoma Employees
Union/ Rule IX, Section 5 of the IRR of the LC)
• Exception: When dismissal was declared final at the time of the conduct of
certification election. (Section 6, DO No. 40-F-03, Series of 2008, amended by
Section10, DO-40-1-15, Series of 2015)
Venue of the election
• No provision in the law or the rules that require the CE to be held within
the company premises but as much as possible should be held in the place
of employment.

• Holding it outside will be justified when the employers unreasonably

withhold the holding of the election of the premises or show extreme anti-
union bias.

• Ultimately, the choice of election site lies within the discretion of the
Election Officer. Parties may also mutually agree on the venue of the
election.
Challenging of votes
• While deleted by DO 40-F-03, Series of 2008, the provision under the
Rules Implementing the labor code regarding the grounds for
challenge of vote in the ballot box, subsist.
• No employer-employee relationship between the voter and the employer
• The voter is not a member of the appropriate bargaining unit which
petitioner seeks to represent.
Procedure for challenge of votes (Sec 10, DO
40-F-03)
• Ballot of voter properly challenged during the pre-election
conference shall be placed in an envelope and sealed by the election
officer in the presence of the voter and the representative of the
contending unions.

• The Election Officer shall indicate on the envelope

• Voter’s name
• The union challenging the voter
• And the ground for the challenge.
Differentiate with on-the-spot questions
• Questions raised during the actual conduct of the election

• The Election officer can rule on these.

• Exception: If the ground involved is one of those stated in Section 10.
• No employer-employee relationship between the voter and the employer
• The voter is not a member of the appropriate bargaining unit which petitioner seeks to
represent.

• Reason: Only the Med-Arbiter can rule on these.

Recap of notable rules
• Challenge should be made during the pre-election conference.

• Even if challenged, may still be allowed to vote. Only that it will be placed
in an envelope, stating the ground.

• Grounds: (1) no ee-er, (2) voter is not a member of the appropriate

bargaining unit. Med-arbiter is the one that rules on these

• On the spot questions during the actual election can be ruled on by the
Election officer save for the two above grounds
How to validly invoke a protest (Sec 13, Rule
VIII, Book V, IRR, as amended by DO 40-03)
• A party in interest files a protest with the Election officer based on any
issue arising from the conduct of the election or its results. Protests not so
raised immediately after the last ballot cast are deemed waiver.

• The ground must be specific. General reservation is not allowed

• Protesting party must formalize protest with the MED-ARBITER, with

specific grounds, arguments and evidence, within 5 DAYS after close of the
election proceedings
• If not recorded during election and formalized within the prescribed period, protest
is deemed dropped or waived.
A “party-in-interest”
• It is a better termed as “union-in-interest”

• Hence, a protest cannot be filed by:

• A labor union which is not a participant in the certification election

• A union which has disaffiliated from its mother federation and has no
independent registration

• An employer, being a mere bystander.

“Close of the election proceedings”
• Protesting party must formalize protest with the MED-ARBITER, with
specific grounds, arguments and evidence, within 5 DAYS after close
of the election proceedings

• Refers to that period from the closing of the polls to the counting
and tabulation of the votes. It does not include the period until the
election proceedings are actually closed. (Philippine Fruits and
Vegetable Industries, Inc v. Hon. Ruben D. Torres, G.R. No. 92391, July
3, 1992)
• Reason: The latter period can take a long time
Philippine Fruits and Vegetable Industries, Inc
v. Hon. Ruben D. Torres
• The petitioner’s protest was denied because he formalized the protest only
on February 20, 1989 (2 months after the close of the election
proceedings). The tabulation of these votes was done by December 16,
1988.

• Petitioner’s argument here was that the canvassing and appreciation of all
votes cast were only completed on February 16, 1989, hence, he
formalized the protest within 4 days.

• Petitioner’s argument was basically

• Close of election proceedings = canvassing and appreciation of votes (which can take
a long time than mere tabulation of votes)
• Sec 3 and 4, Rule VI, Book V of the IRR of the LC

• Sec. 3. Representation officer may rule on any-on-the-spot questions. — The

Representation officer may rule on any on-the-spot question arising from the
conduct of the election. The interested party may however, file a protest with the
representation officer before the close of the proceedings.

• Sec. 4. Protest to be decided in twenty (20) working days. — Where the protest is
formalized before the med-arbiter with five (5) days after the close of the
election proceedings, the med-arbiter shall decide the same within twenty (20)
working days from the date of formalization. If not formalized within the
prescribed period, the protest shall be deemed dropped. The decision may be
appealed to the Bureau in the same manner and on the same grounds as
provided under Rule V.
Exceptional case to the strict construction of
the 5 day period to formalize protest
• National Federation of Labor v. the Secretary of Labor

• When a substantial number of workers would be disenfranchised

because they were not notified of the date of the election.
Note that there is a distinction between a
challenge (Sec 10) and a protest (Sec 13)
• Grounds
• Challenge: No ee-er, voter not a member of the bargaining union (substantive
in nature)
• Protest: on the spot questions (procedural in nature)

• When raised:
• Challenge: During the pre-election conference
• Protest: Raised and recorded in the minutes during the election proper and
formalized with the med arbiter within 5 days.
Spoiled and absention votes
• Spoiled votes
• Torn, defaced, or votes which contain markings.
• Note that these are counted in determining the majority

• Absention
• Blank or unfilled ballot validly cast by an eligible voter.
• Considered a valid vote for purposes of determining a valid election.
Consent Election
Consent Election
• 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.

• Difference with certification election is that the parties voluntarily

agree for the conduct of the election.
Other differences with certification election
• Requires mutual consent of the parties. In certification election, the med-arbiter can
order this without the permission of the parties

• Is a voluntary mode of resolving labor disputes

• Preferred in prioritized over certification election.

• During the preliminary conference in a PCE, the med-arbiter is tasked to determine the possibility
of a consent election.

• Consent election involves at least 2 or more contending unions, while PCE may only
involve 1 petitioner union.

• Consent Election may be conducted during the proceeding in the latter or during its
pendency.
Run-off election
• refers to an election between the labor unions receiving the two (2)
highest number of votes in a certification or consent election with
three (3) or more choices

• Where such a certified or consent results in none of the three (3) or

more choices receiving the majority of the valid votes cast

• provided that the total number of votes for all contending unions is
at least fifty percent (50%) of the number of votes cast.
• Note that the third union is no longer allowed to participate.

• When conducted:
• Election officer motu proprio conducts this election within 10 days from the
close of the election proceedings between the labor unios receiving the 2
highest number of votes.
Illustration
• Example:

• 4 unions participate with 100 eligible voters who validly cast their votes.

• Union 1 – 35 votes, Union 2 – 25, Union 3 – 10, Union 4 – 15, No union

vote – 5

• Valid votes cast (90/100)

• Run off election conducted between Union 1 and 2

Re-run election
• Election conducted to break a tie between the contending unions, including between
“no union” and one of the unions.

• Or when there is a failure of election has been declared by the election officer and
affirmed by the mediator arbiter.

• When the certification, consent, or run-off election has been invalidated or nullified due
to certain serious irregulates that have been committed during the conduct of the same
(Confederation of Citizens Labor Unions v. Noriel, G.R. No. L-56902)
• Such as: disenfranchisement of voters
• Lack of secrecy in voting
• Fraud
• Bribery
• Threat and intimidation employed by any of the contending unions
Situations involving the “tie” authorizing a re-
run election
• When two unions are involved
• 2 contending unions tie, and no union choice did not garner majority
• Between 1 of the 2 contending unions and the no union choice

• When 3 unions are involved and tie in the votes occurred

• 2 or more unions tie and no union did not get majority
• One of the three unions and the no union choice ties

• A tie in the votes occurred between 2 unions involved in a run-off

election
When “no union” garners majority
• A tie between and among the contending unions will no longer
matter. Basically means that the employees in the CBU do not want
any SEBA to represent them.
Rule in cases of failure of election = rerun
election
• Failure of election – votes cast in the certification or consent election is
less than the majority of the number of eligible voters and there are no
challenged votes that could materially change the results of the election.

• Example: If CBU is composed of 100 employees, but less than 51 vote.

• A failure in election shall not bar the filing of another holding of a

certification or consent election known as the re-run election within 6
months from the date of failure of election (Sec 19, Rule IX, Book V, IRR of
the LC)
Distinguish between run-off and re-run
• Run-off: No union gets a majority of valid votes case in a labor
organization involving 3 or more labor organizations, provided that
there are 50% of valid votes case for all the contending unions.

• Re-run: 2 or more unions receive same number of votes.

Rights of labor organizations
Rights of legitimate labor organizations under
the Labor Code
• To act as the representative of its members for the purpose of
collective bargaining

• To be certified as the exclusive representative of all the employees in an

appropriate bargaining unit for purposes of collective bargaining

• Furnished financial statements

• To own property, real or personal, for the use and benefit of the labor
organization and its members
• To sue and be sued in its registered name

• To undertake all other activities designed to benefit the organization

and its members, including cooperative, housing, welfare and other
projects not contrary to law.

• Income and the properties of legitimate labor organizations, including

grants, endowments, gifts, donations and contributions they may
receive from fraternal and similar organizations, local or foreign, which
are actually, directly and exclusively used for their lawful purposes,
shall be free from taxes, duties and other assessments.
1. The duty to bargain collectively
• Section 3, Article XIII of the Constitution provides that the State ,
among others, guarantees the rights of all workers to collective
bargaining and negotiations.
What is the duty to bargain collectively?
• Performance of mutual obligations 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.

• Remember this duty is exercised by and only by the SEBA.

• Such that a union that is not a SEBA cannot allege that the employer
commited an unfair labor practice for refusal to negotiatio

• Ultimate goal: Conclude a CBA

Refusal to bargain is considered a ULP
• It is considered an unfair labor practice if violated by an employer
(Art 259 of the LC) and by the labor organization (Art 260 of the LC)
The duty to bargain collectively can happen
under two situations
• In the absence of a CBA (Art 263 of the LC)
• 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

• When there is a CBA (Art 264 of the LC)

• 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.
When there exists a CBA
• 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

• Freedom period
Effect of refusal to collectively bargain amounts to
automatic adoption of proposed CBA - Kiok Loy vs.
NLRC
• The employer refused to submit any counter-proposal to the CBA
proposed by the SEBA.

• The court ruled that because of their failure to submit the counter-
proposal, the employer lost its right to bargain the terms and
conditions of the CBA.

• Hence, all conditions of the CBA as proposed in the SEBA are deemed
approved and accepted lock stop and barrel (LSB) by the employer.

• Such refusal to bargain and submit a counter-proposal amounted to an

unfair labor practice under Article 259 of the Labor Code.
When would the employer be obligated to
entertain the proposals of SEBA?
• The mechanics of collective bargaining is set in motion only when
the following jurisdictional preconditions are present:
• (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 by the Labor Code

• (2) proof of majority representation

• (3) a demand to bargain under Article 251, par. (a) of the New Labor Code
. ... all of which preconditions are undisputedly present in the instant
case.
Kiok Loy vs. NLRC
• In this case, petitioner had not even honored respondent Union
with any reply to the latter's successive letters, all geared towards
bringing the Company to the bargaining table. It did not even
bother to furnish or serve the Union with its counter proposal
despite persistent requests made therefor.

• Certainly, the moves and overall behavior of petitioner-company

were in total derogation of the policy enshrined in the New Labor
Code which is aimed towards expediting settlement of economic
disputes. Hence, this Court is not prepared to affix its imprimatur
to such an illegal scheme and dubious maneuvers.
The rule in Kiok Loy presupposes that the
matter has been certified to the NLRC
• Where the intervention of the National Labor Relations
Commission was properly sought for after conciliation efforts
undertaken by the BLR failed, The instant case being a certified
one, it must be resolved by the NLRC pursuant to the mandate of
P.D. 873, as amended, which authorizes the said body to
determine the reasonableness of the terms and conditions of
employment embodied in any Collective Bargaining
Agreement.
Automatic renewal clause
• Pending the renewal of the CBA and while they are negotiation its
renewal, the parties are bound to keep the status quo and treat
the terms and conditions embodied therein in full force and effect
not only during the freedom period but even beyond the period
until anew agreement is negotiated and ultimately concluded.

• Employer cannot discontinue the grant of benefits in the CBA. On

the apart of the union, it has to observe and continue to abide by
its commitments under the expired CBA.
New Pacific vs. NLRC
• According to petitioner, the provision on wage increase in the 1981
to 1984 CBA between petitioner Company and NFL provided for
yearly wage increases. Logically, these provisions ended in the
years 1984 — the last year that the economic provisions of the
CBA were, to contract and law, effective

• Petitioner claims that there is no contractual basis for the grant of

CBA benefits such as wage increases in 1985 and subsequent
years, since the CBA stipulated only the increases for the years
1981 to 1984
• Anent the issue of whether or not the term of an existing CBA,
particularly as to its economic provisions, can be extended beyond the
period stipulated therein, and even beyond the three-year period
prescribed by law, in the absence of a new agreement, Article 253 of
the Labor Code explicitly provides

• Art. 253. Duty to bargain collectively when there exists a collective

bargaining agreement. — 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…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. (Emphasis supplied.)
• In the case at bar, no new agreement was entered into by and
between petitioner Company and NFL pending appeal of the
decision in NLRC Case No. RAB-IX-0334-82; nor were any of the
economic provisions and/or terms and conditions pertaining to
monetary benefits in the existing agreement modified or altered.
Therefore, the existing CBA in its entirety, continues to have
legal effect.
New Pacific v. NLRC
• Reason for rule: Would create a gap during which no agreement
would govern, from the time the old contract expired to the time a
new agreement shall have been entered into. Otherwise,
employees would be deprived of a substantial amount of
monetary benefits which they could have enjoyed had the terms
and conditions of the CBA remained in force and effect.

• Such a situation runs contrary to the very intent and purpose of

Article 253 and 253-A of the Labor Code which is to curb labor
unrest and to promote industrial peace
The Collective Bargaining Agreement as a
contract
• The negotiated contract between a duly certified SEBA of workers
and the employer incorporating the agreement reached after
negotiations with respect to wages, hours of work,, and all other
terms and conditions of employment in the appropriate bargaining
unit, including mandatory provisions for grievances and
arbitration machineries.

• Purpose: Stabilization of labor management relations in order to

create a climate of sound and stable industrial peace.
• Effect when a CBA is concluded: The law between the parties.
Hence, any violation can be the subject of redress in court.

• While it is the law between the parties, note that is not an ordinary
contract. It is impressed with public interest and must therefore
yield to the common good (Article 1700 of the Civil Code).
Because the nature of a CBA is mutuality between
the employer and employer, unilateral changes are
not allowed
• Weslayan University v. Weslayan University Philippines Faculty
and Staff Association.

• There was already an existing CBA granting employees automatic

vacation and sick leaves of 15 days each.
The August 16, 2005 Memorandum
• Vacation and sick leave credits are not automatic. They have to be
earned. Monthly, a qualified employee earns an equivalent of 1.25
days credit each for VL and SL. Vacation Leave and Sick Leave
credits of 15 days become complete at the cut off date of May 31
of each year. (Example, only a total of 5 days credit will be given to
an employee for each of sick leave [or] vacation leave, as of month
end September, that is, 4 months from June to September
multiplied by 1.25 days). An employee, therefore, who takes VL or
SL beyond his leave credits as of date will have to file leave
without pay for leaves beyond his credit.
• The Memorandum dated August 16, 2005, however, states that
vacation and sick leave credits are not automatic as leave credits
would be earned on a month-to-month basis. This, in effect, limits the
available leave credits of an employee at the start of the school year.

• This was contrary to the original terms of the CBA which provided that
all covered employees are entitled to 15 days sick leave and 15 days
vacation leave with pay every year and that after the second year of
service, all unused vacation leave shall be converted to cash and paid
to the employee at the end of each school year.
• A Collective Bargaining Agreement (CBA) is a contract entered into by
an employer and a legitimate labor organization concerning the terms
and conditions of employment. Like any other contract, it has the force
of law between the parties and, thus, should be complied with in good
faith.

• Unilateral changes or suspensions in the implementation of the

provisions of the CBA, therefore, cannot be allowed without the
consent of both parties.

• Considering that the Memorandum dated August 16, 2005 imposes a

limitation not agreed upon by the parties nor stated in the CBA, SC
struck the same down.
How are ambiguities in the CBA resolved?
• As a contract governing the law between the parties, the general rules
of statutory construction apply in the interpretation of its provisions.

• Hence, when the provisions are clear, literal meaning as they appear,
prevail (verba legis)

• When there is doubt regarding the interpretation of the contract, it

should be construed in favor of labor.
• Reason: Mandated by the constitution
• Article 1702: In case of doubt, all labor legislation and all labor contracts shall
be construed in favor of the safety and decent living for the laborer.
Scope of binding effect of the CBA
• Ratification of the CBA by majority of all the workers in the
bargaining unit make the same binding on all employees therein.
(Article 237 of the LC)
Automatic Incorporation Clause
• The laws and pertinent jurisprudence automatically form part of a
valid contract. There is therefore no need for the parties to
copy/reiterate them in the CBA. ( Lakas ng. Manggagawang
Makbayan vs. Ablera, G.R. No. L-29474, December 19, 1970)
Standard stipulations in a
CBA
Classified into either
• Non-economic or political

• Economic or non-political
Non-economic/political provisions usually
include:
• Coverage and scope of the agreement
• Exclusions
• Rights and responsibilities of parties
• Union Security Arrangement
• Job Security
• Management Rights and Prerogatives
• Company Rules and Regulations
• Discipline of Employees
• Union Dues and Special Assessments
• Agency Fees
Non-economic/political provisions usually
include:
• Check-off
• Grievance Machinery
• Voluntary Arbitration
• Labor Management Council
• No-strike, No lockout
• Waiver and Completeness of Agreement
• Duration and Effectivity of Agreement
Economic or non-political
• Wage Increases
• Allowances
• Premiums on Work on Rest Days, Holidays, Meal, Rice and other subsidies
• Leave Benefits
• Union Leave
• Uniforms
• Union Office
• Promotions
• Bonuses
• Insurance
• Hospitalization
• Retirement
• Excursion
Classification according to categories
• Mandatory

• Permissive

• Illegal
Mandatory Subjects
• Compulsorily required to bargain if either parties made a
proposal.

• The SEBA and Employer cannot refuse to attempt to bargain

regarding these mandatory matters.

• Note that they are not required to reach a consensus. If the parties
eventually reach a deadlock, parties may result to concerted
activities such as strike (SEBA) and lockout (Employer)
Mandatory subjects
• Wages
• Hours of work
• Meal time
• Time breaks
• Overtime and other premiums
• Commissions
• Shift differentials
• Paid Holidays
• Incentive Pays
• Paid leaves of absences
• Fringe Benefits
• Separation/severance pay
• Pensions
• Retirement benefits
• Work Schedules
• Probationary period
• Grievance Procedure
• Arbitration
• No strike, no lockout clauses
• Union security clauses
• Drug-free workplace policy (R.A. 9165)
• HIV/Aids education and information program
Permissive or voluntary subjects
• Provisions not related to the work being performed by the employees in
the bargaining unit.

• Not related to wages, hours of work, and other terms of employment.

• Being permissive, parties may bargain on these matters, but cannot be

compelled to bargain if a party refuses, without fear it being considered
a Unfair Labor Practice.

• Cannot likewise be subject of a bargaining deadlock which can be cited

as a ground for the SEBA to declare a strike or for the employer to
declare a lockout.
Some examples
• Decorum to be observed in course of parties negotiations

• SEBAs insistence on bargaining for a unit larger than is covered by

its certification

• General business practices

• Internal union matters such as determining union dues and

agency fees, amendments to the union constitution and by laws
Illegal subjects
• Cannot be made part of the CBA because they would run afoul
against the law.

• Even if the parties mutually agree to make them part of the CBA

• Effect: These provisions are void and unenforceable.

• Hence, parties cannot invoke them in declaring a deadlock to

support a strike or lockout.
Examples of illegal provisions
• Those that are less than the minimum standards set by the law.

• Discrimination of employees based on sex, sexual preference and

orientation, race, marital status, disability, age, religion
Insular Hotel Employees Union-NFL v. Waterfront
Insular Air Hotel Davao, G.R. No. 174040-41,
September 22, 2010
• Petitioner argued that an agreement to reduce the wages and benefits
runs contrary to Article 100 of the Labor Code, which espouses the
non-dimunition of benefits principle.

• ART. 100. Prohibition Against Elimination or Diminution of Benefits.85 –

Nothing in this Book shall be construed to eliminate or in any way
diminish supplements, or other employee benefits being enjoyed at the
time of promulgation of this Code.

• But the principle does not apply when the employer and employees
agree to reduce wages as a by product of the CBA, so long as they do
not fall below the minimum standards set by law.
Benefits from the CBA and the law are
separate and distinct from each other
• Note that the benefits derived from the law are separate and distinct
from those negotiated in the CBA.

• Workers are allowed to negotiate for wage increases separately from

and in addition to legislated wage increases.

• Article 125 of the LC: No wage order should be construed to prevent

workers in a particular firm or enterprise from bargaining for higher
wages with their respective employers.

• Note however, that parties may validly agree to reduce wages in a CBA
provided they do not go below the minimum standards.
Employees entitled to the CBA Benefits
• SEBA members
• Non-SEBA members but belonging to the same CBU
• Members of minority union who paid agency fees to the SEBA and
• New employees hired after the conclusion of the CBA and during
its effectivity or even after its expiration.
Agency Fees
• Art. 259 (e) of the LC

• Employees of an appropriate bargaining unit who are not

members of the recognized collective bargaining agent may be
assessed a reasonable fee equivalent to the dues and other fees
paid by members of the recognized collective bargaining agent, if
such non-union members accept the benefits under the
collective bargaining agreement: Provided, That the individual
authorization required under Article 242, paragraph (o) of this
Code shall not apply to the non-members of the recognized
collective bargaining agent
Agency Fees
• Take note that the SEBA which successfully negotiated the
CBA with the employer is given a right to collect a
reasonable fee called agency fee from its non-members.

• Non-members refers to the members of the minority union

who lost in the certification election where the SEBA was
certified. Simply put, they are members of the minority
union.
The right to check off (Holy Cross of Davao
College v. Joaquin)
• The right of the employer to deduct sums equivalent to the
amount of union dues from the employees' wages for direct
remittance to the union, in order to facilitate the collection of
funds vital to the role of the union as representative of employees
in a bargaining unit if not, indeed, to its very existence.

• Generally, written authorization to check off is required to be valid,

but a resolution approved and adopted by a majority to the union
members at a general meeting will suffice when the right to check-
off has been recognized by the employer
Agency fees (Holy Cross of Davao College v.
Joaquin)
• Payment by the non-members of the SEBA of the agency fees to the
certified SEBA which successfully negotiated the CBA was valid
because they accepted the benefits from the CBA.

• Conversely, these fees may be deducted from their pay automatically

without the need of individual written authorization.

• Called as agency fees because by accepting the benefits of the CBA,

they recognize the SEBA as the “agent” of these minority union
employees.
What if the employer refuses to check-off the
union dues/deduct the agency fees?
• Will the employer be liable to pay the amount?

• No. In Holy Cross v. Davao, Where the employer fails or refuses to

implement a check-off agreement, logic and prudence dictate
that the union itself undertake the collection of union dues and
assessments from its members (and agency fees from non-union
employees);

• This, of course, without prejudice to suing the employer for

unfair labor practice.
Note though that Non-SEBA members may
refuse to accept the benefits of the CBA
• There is no law that compels a non-SEBA member to accept the
benefits in the CBA.

• If does not accept, does not pay agency fees.

We said that individual written authorization for
non-SEBA members who accept the benefits of
the CBA is not required
• When is individual-written authorization required then?

• In the following cases, where all unions are authorized to collect

reasonable amounts of:
• Membership fees
• Union dues
• Assessments
• Fines
• Contributions for labor education, research, mutual death, hospitalization
benefits, welfare fund, strike fund and credit and cooperative undertaking
• Agency fees
• The requirement of individual written authorization is required in
cases of MEMBERS of the union only.

• Such authorization must specifically state the amount, purpose,

and beneficiary of the deduction.

• Purpose: To protect the employees from unwarranted practices

that diminish their compensation without their knowledge and
consent.
When is individual written authorization not
required
• Members of minority union who accept benefits of CBA
• Deduction from mandatory labor relations seminars and labor
education activities
• Check off for union service fees authorized by law
• Withholding tax deductions
• Withholding of wages because of employee’s debt to employer
which is already due (Art. 1706 of the Civil Code)
• Deduction from wages ordered by the court.
• Deductions authorized by law such as premium for Philhealth,
Social Security, Pag-Ibig, employee’s compensation and the like
The Collective Bargaining Procedure (Art. 261
of the LC)
• 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

• 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;
• If the dispute is not settled, the National Conciliation and
Mediation 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
• 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.

• Note that the procedure under Article 261 of the LC is mandatory because of the
basic interest of the state in ensuring industrial peace.

• Hence, the other party is mandatorily required to make a reply thereto not later
than ten (10) calendar days from receipt of such notice. Failure of which will be
considered an unfair labor practice.

• Reason: Shows bad faith and utter lack of interest in bargaining with the union.
(General Milling Corporation v. CA, G.R. No. 146728, February 11, 2004)
 Step by step process
• Written notice of party (whether the SEBA or employer) desiring to negotiate an
agreement

• Reply within 10 calendar days from notice,

• Meeting not alter than ten (10) calendar days from the date of request of conference, of
the representatives of the employer and the SEBA, for the purpose of negotiating. The
NCMB, may mediate the dispute if an issue is not settled by the parties themselves.

• Signing and Execution

• Publication
• Posting of the copy of the CBA in at least 2 conspicuous places in the workplace, at least 5 days
prior to the ratification by the employees comprising the bargaining unit (Art. 237 of the LC)
• Ratification
• Act of ratifying the concluded CBA by at least majority of all employees
covered by and included in the bargaining unit (not merely majority of SEBA
members).

• Registration
• With the BLR or the Dole Regional Office by submitting 5 copies along with other
documentary requirements and paying the required registration fee.

• Joint adminstration of the CBA by the employer and the SEBA during its
5 year lifetime (Art. 265 of the LC) without interruption.
Unfair labor practices
Unfair labor practice
• Acts committed by the employer under Art 259 of the labor code
and under Art 260 for labor organizations, Article 278 on union
busting, or Violation of Article 274 which are gross in character.

• The act complained of as the ULP must have a proximate and

causal connection with:
• The right of self organization
• The right to collective bargain
• Compliance with the CBA
Parties who can commit ULP and who are
criminally liable:
• Employers or Labor Organizations

• For the employer: only the officers and agents of corporations,

associations or partnerships who have actually participated in,
authorized or ratified unfair labor practices shall be held criminally
liable (Art 259)

• For the Labor Organization: only the officers, members of governing

boards, representatives or agents or members of labor associations or
organizations who have actually participated in, authorized or ratified
unfair labor practices (Art 260)
Elements of ULP
• 1. Employer and employee relationship between the offended
party and offender
• Reason: The ULP may only be committed in connection with the right to
self organization and collective bargaining of the employees

• 2. The act complained of must be expressly mentioned and

defined under the Labor Code
Aspects of ULP (Art. 258)
• Aspects
• Unfair labor practices are not only violations of the civil rights of both
labor and management but are also criminal offenses against the State
which shall be subject to prosecution and punishment as herein
provided.

Two aspects
• Civil Aspect
• Criminal Aspect
Civil before the criminal
• The civil aspects of all cases involving unfair labor practices, which may
include claims for actual, moral, exemplary and other forms of damages,
attorney’s fees and other affirmative relief, shall be under the jurisdiction of
the Labor Arbiters. The Labor Arbiters shall give utmost priority to the
hearing and resolution of all cases involving unfair labor practices.

• No criminal prosecution may be instituted without a final judgment finding

that an unfair labor practice was committed, having been first obtained in the
preceding paragraph. During the pendency of such administrative
proceeding, the running of the period of prescription of the criminal offense
herein penalized shall be considered interrupted: Provided, however, That the
final judgment in the administrative proceedings shall not be binding in the
criminal case nor be considered as evidence of guilt but merely as proof of
compliance of the requirements therein set forth.
Burden of proof
• In ULP cases against employers, it is the union which has the
burden to present substantial evidence to support its allegation
of ULP committed by the employer.

• In ULP cases against labor organizations, burden of proof rests

on the employer.
ULP of Employers (Art. 259)
• 1. To interfere with, restrain or coerce employees in the exercise of
their right to self organization

• 2. To require as a condition of employment that a person or an

employee shall not join a labor organization or shall withdraw from
one to which he belongs

• 3. 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
• 4. To initiate, dominate, assist or otherwise interfere with the formation
or administration of any labor organization, including the giving of
financial or other support to it or its organizers or supporters

• 5. 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.

• 6. To dismiss, discharge or otherwise prejudice or discriminate against

an employee for having given or being about to give testimony under
this Code
• 7. To violate the duty to bargain collectively as prescribed by this
Code

• 8. 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 dispute

• 9. To violate a collective bargaining agreement

1. To interfere with, restrain or coerce employees
in the exercise of their right to self organization
• What do “interfere,” “restrain” and “coerce” mean?

• Insular life v. Insular Life Assurance

• Test: Whether the employer has engaged in conduct which may
reasonably tend to interfere with the free exercise of the employees’ twin
rights to self-organization and collective bargaining

• Direct evidence that an employee was restrained/coerced/intimidated is

not even necessary. What matters is that there is at least reasonable
inference that the anti-union conduct of the employer has an adverse
effect on the twin rights.
Insular life v. Insular Life Assurance
• Citing paragraph 5 of the complaint filed by the acting prosecutor
of the lower court which states that "the officers and members of
the complainant unions decided to call off the strike and return to
work on June 2, 1958 by reason of the injunction issued by the
Manila Court of First Instance," the respondents contend that
this was the main cause why the strikers returned to work and not
the letters, exhibits A and B.
• Interference constituting unfair labor practice will not cease to be
such simply because it was susceptible of being thwarted or
resisted, or that it did not proximately cause the result intended.
For success of purpose is not, and should not, be the criterion
in determining whether or not a prohibited act constitutes
unfair labor practice.
• Examples of interference (T and H Shopfitters Corp v. T and H
Shopfitters Corp, G.R. No. 191714, February 26, 2014)
• Sponsoring a trip to non-union member employees, excluding member union
employees
• Active campaigning by the sales officer of petitioner employer against the
prevailing union as bargaining agent
• Management escorting its employees after the field trip to the polling center
• Hiring of subcontractors performing respondents’ functions
• Enforcement of work on a rotational basis for union members

• The questioned acts of petitioners all reek of interference on the part

of petitioners.
• Indubitably, the various acts of petitioners, taken together,
reasonably support an inference that, indeed, such were all
orchestrated to restrict respondents’ free exercise of their right to
self-organization. The Court is of the considered view that
petitioners’ undisputed actions prior and immediately before the
scheduled certification election, while seemingly innocuous,
unduly meddled in the affairs of its employees in selecting
their exclusive bargaining representative.
• The Court held that the various acts of the petitioner clearly were
orchestrated to restrict respondents free exercise of their right to
self-organization.

• These acts prior to the certification election meddled in the affairs

of its employees in selecting the bargaining representative.

• This is where we apply what we call as the Totality of Conduct

Doctrine Test
Totality of conduct doctrine
• Totality of conduct doctrine means that in determining a finding of
ULP, the same should not be based alone on the cited ULP but
must also consider employer’s acts outside the bigger context of
the accompanying labor relations situations.

• Any perceived act of interference must be examined in terms of

the act’s inherent import and effects, in light of the surrounding
circumstances, and weighed on the basis of the totality of the
conduct of the entity charged.
• Past conduct of the employer and like considerations, coupled
with an intimate connection between the employer’s action and
the union affiliation or activities of the particular employee or
employees should be taken as a whole.
Another example which considered the
totality of circumstances
• Carmelcraft Corporation v. NLRC, G.R. No. 906345-35, June6,
1990, 186, SCRA 393
• The company ceased operations when it reported a loss of only
Php1,603.88.
• But capitalization of the company was about Php3 Million
• But the SC found the company guilty of a ULP because the closure was
done when a union was already established.
Carmelcraft
• The determination to cease operations is a prerogative of
management that is usually not interfered with by the State as no
business can be required to continue operating at a loss simply to
maintain the workers in employment. That would be a taking of
property without due process of law which the employer has a right to
resist.

• But where it is manifest that the closure is motivated not by a

desire to avoid further losses but to discourage the workers from
organizing themselves into a union for more effective negotiations
with the management, the State is bound to intervene.
Jurisprudentially declared acts of ULP involving
employer’s interference, restraint or coercion.
• Dismissals
• Threats
• Questioning and interrogation
• Offers and Promises
• Espionage and surveillance
• Interference in intra union affairs
Dismissals
• Dismissals that are occasioned by the employer’s interference,
restraint or coercion are always ULP.

• Some Examples
• Dismissals of employees after they have organized the union
• Unionists were permanently dismissed, while others were just
temporarily laid off.
• Mass lay off of 65 employees allegedly due to retrenchment absent any
losses or financial reverses.
• Dismissal of employees because of their refusal to resign from the union
• Dismissal of employees engaged in lawful concerted activities
Threats
• The mere issuance of a threat of the employer, even if not
actualized may be considered a ULP

• Some examples
• Threatening loss of jobs or benefits if they join or vote for a union or
engage in concerted activities
• Threating to close the establishment
Questioning and interrogating employees
• Mere act of questioning may be considered a ULP

• Example
• Interrogating employees in connection with their membership in the union
Offers and promises
• Promising or implementing employee wage increases to
discourage union activities or support

• Offer of reinstatement and attempt to bribe strikers with benefits

such as food, overtime pay, so that they would abandon the strike
and return to work.

• Offer of Christmas bonus to all loya employees after the request

by the union to bargain
Espionage and surveillance
• Management conducts espionage or surveillance of the meetings
and activities of the union.

• Requesting employees to report on the union activity of others.

2. To require as a condition of employment that a
person or an employee shall not join a labor
organization or shall withdraw from one to which
he belongs
• The “Yellow Dog” contract

• Common stipulations in a yellow dog contract

• Representation that employee is not a member of a labor organization
• A promise not to join a union
• A promise that upon joining a labor organization, he will quit his
employment
3. 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
• GR: An act of an employer having certain work or certain services
functions performed by the SEBA members contracted is not per
se ULP
• Reason: Management prerogative. The employer cannot be denied the
faculty of promoting efficiency and attaining economy by a study of what
is essential to their operation.

• Exception: When the contracting out interferes with, restrains, or

coerces employees in the exercise of their right to self-
organization.
Examples
• Shell Oil Workers Union v. Shell Oil Company of the Philippines,
G.R. No. L-28607
• The employer contracted out the security services of its company and
reassigned the company security guards to other sections of the
company
• There was a specific provision in the CBA to at least maintain a security
guard section during the lifetime of the agreement.
Digital Telecommunications Philippines, Inc v.
Digital Employees Union, G.R. No. 1849303-0
• Petitioner Digitel closed Digiserv, a department of the company, and outsourced its
call center operations citing losses, which it did support with financial statements.

• However, the court declared the act as a ULP, since the closure was made AFTER the
DOLE Secretary issued an assumption order to enjoin an impending strike.

• The assumption order directs employees to return to work and the employer to
reinstate the employees. The existence of the assumption order should have
prompted Digitel to observe the status quo.

• But instead, Digitel proceeded to close down Digiserv.

• What was worse, when Digiserv was closed, the company re-hired some other
employees to Interactive Technology Solutions (I-tech), a corporate arm of Digitel
The court again considered the totality of
circumstances
• Thus, the closure of Digiserv pending the existence of an
assumption order coupled with the creation of a new
corporation performing similar functions as Digiserv leaves no
iota of doubt that the target of the closure are the union member-
employees. These factual circumstances prove that Digitel
terminated the services of the affected employees to defeat their
security of tenure. The termination of service was not a valid
retrenchment; it was an illegal dismissal of employees
• At the height of the labor dispute, occasioned by Digitel’s
reluctance to negotiate with the Union, I-tech was formed to
provide, as it did provide, the same services performed by
Digiserv, the Union members’ nominal employer.
4. To initiate, dominate, assist or otherwise
interfere with the formation or administration of
any labor organization, including the giving of
financial or other support to it or its organizers or
supporters
• This is known as the company union.
ULPs are not a bar to the holding of a
certification election
• GR: The pendency of a ULP case filed against one of the unions
does not stay the holding thereof

• Exception: Cases of a possible company union.

• Reason: Prejudicial question prior to the holding of the

certification election.
Illustrative cases of a company union
• Kapisanan ng mga Manggagawa ng Alak v. Hamilton Distillery Company, G.R.
No. L-18112, October 30, 1962

• There were two unions present in the company. The company preferred Union 2, so
the company asked Union 1’s president to dissolve Union 1, but the latter refused.

• Some members of Union1 resigned and were forced to join Union 2. When they
joined, these former Union 1 members were only made to work 2 days a week.

• Later, about 52 employees originating from Union 1 were terminated.

• SC said that Union 2 was a company union.

Other indicators of a company union in the
Kapisanan case
• The CBA was entered into the same day that the worker’s union was
granted registration.

• The president of the worker’s union was the time-keeper for the
company, and had supervisory authority over its employees and
laborers. The same goes for the treasurer of the Union who was the
brother of the president.

• SC said that it found it difficult to avoid the feeling that the Workers'
Union was, if not company dominated, at least organized under the
patronage of the Company, and that the same was in such a hurry to
bargain with the Workers' Union, in order to beat the NAFLU and
prevent it from taking appropriate action prior, thereto
• Ocean Air Products v. CIR, G.R. No. 18794, 7 SCRA 208

• Employees were forced by the company officers to join a

particular union. There was also a contending union.

• Despite a retrenchment policy in place with the company, only

employees of the contending union were dismissed.

• After retrenchment, the company hired several labourers.

5. Discrimination, the Union Security Clause,
Agency Fees (Paragraph e of Article 259)
• Three aspects under Paragraph E

• 1. 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.

• 2. 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. (Union Security Clause)
• 3. Employees of an appropriate bargaining unit who are not
members of the recognized collective bargaining agent may be
assessed a reasonable fee equivalent to the dues and other fees
paid by members of the recognized collective bargaining agent, if
such non-union members accept the benefits under the collective
bargaining agreement: Provided, That the individual authorization
required under Article 242, paragraph (o) of this Code222 shall not
apply to the non-members of the recognized collective bargaining
agent; (Agency Fees)
Discrimination as to monetary benefits
• Discrimination – defined as the failure to treat all persons equally
when no reasonable distinction can be found between those
favored and those not favored.

• Hence, that there is no reasonable distinction between two

groups of employees belonging to the same class should be
established.

• Discrimination should not be confused with classification

• What is prohibited is discrimination 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.

• Examples:

• Manila Pencil Co, Inc., v. CIR, G.R. No. L-16903, August 31, 1965
• While there were business conditions that justified the dismissal of the
employees, it is ULP to dismiss only union members and retain non-union
members
Manila Pencil
• Retrenchments due to deteriorating business conditions are valid
but the explanation, however, does not by any means account
for the permanent dismissal of five of the unionists, when it
does not appear that non-unionists were similarly dismissed.
Manila Railroad Co v. Kapisanan ng mga
Manggagawa sa Manila Rail Road, G.R. No. L-
19728, July 30, 1964
• Long time employees who were part of the union were not
regularized, while newer tenured employees who had no affiliation
with a union were regularized first.

• SC disregarded the claim of petitioners that that the complainants

could not be extended permanent appointments because of the
absence of vacant and existing positions commensurate with their
qualifications in petitioners' budget and plantilla, for, as the
evidence shows, during the period of 1957 to 1959 four new
employees were taken in as bus workers or truck helpers and
right from the start they were given permanent appointments.
Union Security Clause
• A stipulation in the CBA which allows the parties, the employer and
SEBA, to enter into an agreement compulsorily requiring membership
of the covered employees in the SEBA which successfully negotiated
the CBA for their continued employment.

• Exceptions:
• Religious objectors – faith precludes them from becoming members of religious
organizations
• Employees already members of another Union prior to SEBA certification
• Confidential employees
• Supervisory employees excluded from becoming members of the rank-and-file
union.
• Employees excluded from coverage of the Union security clause per express
agreement of the CBA
• Reason for the rule: Union security. Guarantees the continued
existence of the SEBA through enforced membership for the
benefit of the workers. Otherwise, without this clause, the
existence of the SEBA is always subject to uncertainty and may
fall prey to company machinations.

• Does this violate the constitutional guarantee to freedom of

association?
• Unionism provides more benefits than harm to the individual employees
• Hence, the constitutional right to abstain from joining a union is
subordinate to the social justice policy in the Constitution.
Various forms of Union Security Arrangements
• Closed shop agreement
• Maintenance of Membership Agreement
• Union shop Agreement
• Exclusive Bargaining Agreement
• Bargaining for Members Only Agreement
• Agency Shop Agreement
• Preferential Hiring Agreement
Closed shop agreement
• Scheme where there is an agreement between the employees and their
representatives, that no person is allowed to be employed in any
departments of the enterprise unless he becomes for the duration of
the agreement a member of the SEBA and remains a member of good
standing of SEBA.

• This kind of agreement requires new hires to be part of the SEBA and to
continue to be members in good standing during the course of
employment at least for the duration of the CBA

• Effect: Wields group solidarity

Maintenance of membership agreement
• Employees who are already members of the SEBA must maintain
union membership as a condition of their continued employment,
until they are promoted, transferred or terminated out of the
Bargaining Unit. Can include:
• those who are already SEBA members at the time of signing the CBA
• New hires after signing of the CBA (but not duty bound to join)

• Unlike a closed shop agreement however, non-union members are

not required join the SEBA.
Union shop agreement
• All new regular employees are required to join the SEBA within a
certain period as a condition of their continued employment
Modified Union Shop Agreement
• Employees under this arrangement who are not SEBA members at
the time of signing or execution of the CBA are not required to join
it.

• However, all workers hired or employed after the signing or

execution of the CBA are required to join the SEBA.
Exclusive Bargaining Agent Agreement
• The union which negotiated and concluded the CBA with
management is considered and recognized as the SEBA of all
employees covered by the bargaining unit, irrespective if they are
members or not of the SEBA
Bargaining for members only agreement
• The union which negotiated and concluded the CBA with
management is recognized as the SEBA for its own members only.

• This type is NOT allowed in our jurisdiction since the SEBA in our
jurisdiction represents all employees in the CBU.
Agency Shop Agreement
• There is no requirement for non-members of the SEBA to become
its members. However, it is required that such non-SEBA
members should pay to the SEBA an agency fees as a condition
for their continued employment.
Preferential Hiring Agreement
• It is the principal feature of this arrangement that the employer
gives preference in hiring to the members of the SEBA under equal
circumstances and qualifications.

• Once hired, they are expected to maintain their membership in

good standing in the SEBA for the duration of the CBA as a
condition for their continued employment.
Effects of the Union Security Clause on Non-
SEBA members
• 1. Union security applies only to members of the SEBA

• Other unions in existence in a given bargaining unit which is being

represented by a duly certified SEBA cannot invoke these union
security principles.

• Reason: Union security is a stipulation in a CBA. Hence, can only

be invoked by the union which is a party thereto, which is the
SEBA.
• 2. Newly-hired employees can be compelled to join the SEBA.

• Within a specified time after obtaining regular employment. Union

security agreement

• If new entrants fail to join SEBA, the SEBA can recommend to

management their termination from employment for violation of
the union security provision in the CBA
• 3. Members of minority union cannot be compelled to join SEBA

• 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

• Hence, the union security clause does not cover members of the
minority union. Hence, not being required to join the union, they cannot
be dismissed on grounds for violating the union security agreement.
(San Carlos Milling Co. v. CIR, G.R. Nos. L-15453 and L-15723, March
17, 1961)
• This holds true even if there is an express stipulation in the SEBA
that members of the minority union must become members of the
SEBA after signing of the CBA. These provisions are null and void.
(Talim Quarry Co., Inc v. Bartiola, G.R. No. L-15768, April 29, 1961)
Talim Quarry
• UNION SHOP. — Any new worker or laborer hired by the COMPANY
shall, within thirty (30) days after employment, join the UNION. Failure
to join the UNION within said time shall give right to the UNION to
demand the separation of such worker or laborer.

• Laborers or employees who are not presently members of the

UNION on the date of the execution of this agreement shall join the
UNION within thirty (30)days from the execution hereof and shall
continue to be members in good standing as a condition to their
continued employment with the company, provided, however, that
mere application by any such laborer for membership with the UNION,
in accordance with the union's constitution and by-laws, shall be
considered sufficient compliance with the above shop agreement.”
• In Freeman Shirt Manufacturing Co., Inc. vs. Court of Industrial
Relations et al., the Court held that a closed-shop clause in a
collective bargaining agreement does not apply to persons
belonging to another labor union already hired but is effective
only upon those yet to be hired, and that a dismissal of the former
for refusing to comply with the closed shop contract is unlawful
• 4. Non-SEBA members from the minority union can resign from
their unions to join SEBA at anytime during their lifetime

• 5. Non-retroactivity of the union security clause

• GR: Union security provision such as a closed shop agreement requiring
all employees (even members of other unions) to join the SEBA is not
valid.

• Hence, a CBA cannot be given retroactive effect to cover employees who

are not members of the labor organization at the time of the effectivity of
the CBA. (Confederated Sons of Labor v. Anakan Lumber Co, G.R. No. L-
12503)
Confederated Sons
• “That the UNION shall have the exclusive right, and privilege to
supply the COMPANY with such laborers, employees and workers
as are necessary in the logging, mechanical, sawmill, office,
logponds, motor pools, security guards and all departments in its
many phases of operations, excepting such positions which are
highly technical and confidential in character and/or such
positions which carry the exercise of authority in the interest of the
COMPANY which exercise is not merely clerical or routinary within
the contemplation of the law, and that the COMPANY agrees to
employ or hire in any of its departments only such person or
persons who are members of the UNION.”
• Inasmuch as Article II above quoted does not provide that employees
"must continue to remain members in good standing" of respondent
union "to keep their jobs," the collective bargain-agreement between
them does not establish a 'closed shop," except in a very limited
sense, namely, that the laborers, employees and workers engaged
by the company after the signing of the agreement on January 23,
1955, must be members of respondent union.

• The agreement does not affect the right of the company to retain
those already working therefor on or before said date, or those
hired or employed subsequently thereto, while they were members
of respondent union, but who, thereafter, resign or are expelled
therefrom.
• In order that an employer may be deemed bound, under a collective
bargaining agreement, to dismiss employees for non-union
membership, the stipulation to this effect must be so clear and
unequivocal as to leave no room for doubt thereon. An undertaking
of this nature is so harsh that it must be strictly construed, and doubts
must be resolved against the existence of "closed shop".

• Membership respondent union is not a condition for the continuation

of said relation or for the retention of a laborer or employee engaged
either before said agreement or while he was a member of said union.
• If the parties to the agreement intended to establish a "closed shop",
in the strict sense of the phrase, they would have inserted in said
Article III-a, among the grounds for dismissal by the company therein
specified the discontinuance of membership in respondent union
• Exception: When there is a valid union security clause requiring
compulsory membership in the SEBA, in which case, an employee
who is not a member of a labor organization at the time of the
effectivity of the CBA may be compelled to join it and his refusal to
join will justify the dismissal. (Juat v. CIR Bulaklak Publications
and Evangelista, G.R. No. L-20754, November 28, 1965)
Juat v. CIR Bulaklak Publications and Evangelista,
G.R. No. L-20754, November 28, 1965
• Petitioner, a long-standing employee, of Bulaklak Publications, was
dismissed for refusal to join the SEBA

• The CBA had this provision:

• …All employees and/or workers who on January 1, 1961 are not yet members of the
Union shall, as a condition of maintaining their employment, become members of such
union

• SC affirmed the dismissal of the ULP case, stating that old employees or
workers can indeed be obliged by his employer to join the labor union which
had entered into a CBA that provides for a closed-shop as a condition for his
continuance in his employment as long as he was not part of a labor
organization yet. Otherwise, his refusal to join the contracting labor union
would constitute a justifiable basis for his dismissal.
• The closed-shop proviso of a collective bargaining agreement
entered into between an employer and a duly authorized labor
union is applicable not only to the employees or laborers that are
employed after the collective bargaining agreement had been
entered into but also to old employees who are not members of
any labor union at the time the said collective bargaining
agreement was entered into.

• HOWEVER, it DOES APPLY to old employees or workers who are

non-members of any labor union at the time the collective
bargaining agreement was entered into.
Nature of dismissal when due to violation of
union security clause
• Considered a JUST CAUSE

• Must be expressly provided as a penalty in the CBA.

• In the case of Confederated Labor, forty-five members of the respondent

union workers’ union joined another union, and were dismissed for violation
of the following union security clause:

• …The Union shall have the exclusive right, and privilege to supply the
COMPANY with such laborers, employees and workers as are
necessary….The Company agrees to employ or hire in any of its
departments only such person or persons who are members of the
UNION.
• Respondents interpreted the clause to mean that this was in the nature
of a union security clause where not joining the union would lead to
their dismissal

• SC said this was not the case because the penalty of dismissal under
the CBA was not express.

• According to the court, the stipulation to this effect must be so clear

and unequivocal as to leave no room for doubt thereon. Since the
provision is so harsh, it should be strictly construed. Doubts should be
resolved against the existence of the close shop.
Due process in terminating due to the union
security clause
• Alabang Country Club Inc v. NLRC, G.R. No. 170287, February 14, 2008

• The following requisites must be established first:

• 1. The union security clause is applicable

• 2. The SEBA is requesting for the enforcement of such clause
• 3. There is sufficient evidence to support the SEBA’s decision to expel the
employee from membership.

• Once these are established, it is considered a just cause of termination.

All the requisites were present in the Alabang
case
• The three requisites were present.

• 1. The union security clause was a valid provision in the CBA.

• 2. The SEBA specifically requested and recommended to the
employer the dismissal of the employees who failed to maintain
their membership because of their dismissal
• The SEBA specifically sent a letter to the Company demanding
enforcement of the union security clauses in the CBA because the
respondents were dismissed from the Union due to malversation of
funds.
• 3. The SEBA’s decision to ask for the termination was justified and
supported by evidence on record.
• Due process was followed by the UNION
• Due process was also followed by the CLUB through its verification of the
allegations of all parties involved
Compliance of due process in the Alabang
case
• The three respondents were expelled from and by the Union after due investigation
for acts of dishonesty and malversation of Union funds.

• In accordance with the CBA, the Union properly requested the Club, through the a
letter addressed to the Club's HRD Manager, to enforce the Union security provision
in their CBA and terminate said respondents.

• In compliance with the Union's request, the Club reviewed the documents
submitted by the Union, requested said respondents to submit written explanations,
and thereafter afforded them reasonable opportunity to present their side.

• After it had determined that there was sufficient evidence that said respondents
malversed Union funds, the Club dismissed them from their employment
conformably with Sec. 4(f) of the CBA.
Employer’s obligation to terminate employment of
errant members upon demand by SEBA
• Should the employer terminate directly?

• No.

• Upon receipt of the demand from the union to dismiss, the employee
must conduct its own inquiry on the factual and legal bases of such
demand to satisfy itself that there indeed exists sufficient basis to
dismiss.

• Hence, it was proper for the employer to issue a notice to explain in the
case of Manila Hotel Pavillon Chapter v. NLRC, G.R. No. 179402,
September 30, 2008.
A case of no due process
• Carino v. NLRC, G.R. No. 91066, May 8, 1990.

• Petitioner, who was a former president of the union, was dismissed a

day after receipt by respondent company of the letter from the SEBA
recommending his termination due to his expulsion from the SEBA.

• SC said that the employer acted in bad faith in dismissing the worker
without complying with the due process requirements under the law.

• The right of an employee to be informed of the charges against him and

to a reasonable opportunity to present his side in a controversy is not
wiped away by a union security clause.
Carino
• SC said that the Company should have given petitioner Carino an
opportunity to explain his side of the controversy with the Union.
Notwithstanding the Unions Security Clause in the CBA, the
Company should have reasonably satisfied itself by its own
inquiry that the Union had not been merely acting arbitrarily and
capriciously in impeaching and expelling petitioner Cariño.
An employer cannot dismiss an employee
without union’s recommendation
• M.D. Transit v. De Guzman, G.R. No. L-1881-, April 23, 1963

• Petitioners were expelled from their union for violating the terms of the
CBA. The SEBA prepared the recommendation letter for dismissal to be
sent to the employer .

• Employer dismissed the petitioners even before receiving the

recommendation letter.

• Sc said that the dismissal was illegal because it had not yet received
the recommendation of the SEBA, hence, it cannot be said that the
dismissal was based on the recommendation.
What this means is that the twin notice
requirements of notice and hearing constitute
essential elements of procedural due process
• 1. Written notice apprising the employee of the particular acts or
omissions for which his dismissal is sought in order to afford him
an opportunity to be heard and to defend himself with the
assistance of counsel, if he desires

• 2. Notice informing the employee of the employer’s notice to

dismiss.
6. Filing of charges or giving of testimony
• To dismiss, discharge or otherwise prejudice or discriminate
against an employee for having given or being about to give
testimony under this Code;
7. To violate the duty to bargain collectively as
prescribed by this Code
• Duty to bargain collectively – performance of a mutual obligation
to meet and convene promptly and expeditiously in good faith for
the purpose of negotiating an agreement with wages, hours of
work, and all other terms and conditions of employment.

• Example:

• Failure to give counter-proposals (General Milling)

• Failure of employer to provide updated financial statement.
• SEBA must request this in writing for the refusal to be considered a ULP.
• Unilateral changes in wages and terms and conditions of employment
in the course of CBA negotiations.
• Interference in choice of union bargaining panel
• Negotiating with Union Members individually instead of the SEBA.
(Insular life)
• Bargaining for members only
• Closure of establishment in bad faith
• Surface bargaining
• Blue-sky bargaining
• Boulwarism
Surface Bargaining
• Going through the motions of negotiating without any legal intent to
reach an agreement.

• In Standard chartered Bank Employees Union v. Confessor, G.R. No.

114974, June 16, 2004, it was defined as an unwillingness to bargain in
good faith or merely hard bargaining.

• This must be distinguished, however, with actually not being able to

reach an agreement, resulting in a deadlock. Mere failure to agree does
not amount to a ULP.

• Can only be committed by the employer

Blue-Sky bargaining
• Making exaggerated or unreasonable proposals.

• Can only be committed by the SEBA.

Boulwarism
• Negotiating tactic of former VP of GE, Lemuel Boulware

• This is our “final, last, and best offer” on the table. “Take it or leave
it.
8. Payment of negotiation fees or attorney’s
fees
• When the employer pays negotiation fees or attorney’s fees to the
SEBA or its officers or agents as part of the settlement of any issue
in the collective bargaining or any other dispute.

• Note that there is also a counter-part provision for ULP by labor

organizations for accepting negotiation or attorney’s fees;
9. Violation of the CBA
• Article 259 (i) should be read in relation to Article 274 of the LC

• Article 274 provides:

• … . Accordingly, 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. For purposes of this article, gross violations of
Collective Bargaining Agreement shall mean flagrant and/or malicious
refusal to comply with the economic provisions of such agreement.
• Hence, the following CBA violations are no longer ULPs

• 1. Ordinary violations of a CBA involving non-economic provisions even if gross in nature

• 2. Violations of non-economic provisions, even if gross in nature
• 3. violation of economic provisions, not gross in character.

• If not gross violations of economic provisions, These offenses are cognizable as ordinary
grievances under the grievance machinery and voluntary arbitration clause in the CBA

• If gross violation of economic provisions, the jurisdiction belongs to the Labor Arbiter.

• Purpose of distinction: To expand the jurisdiction of the voluntary arbitrator.

San Miguel Foods v. San Miguel Corporation
Employees Union
• The SC held that the violation of the grievance machinery
procedure in the CBA did not amount to A ULP, since it was not an
economic provision.

• However, the court held that the job security provision of the CBA,
providing for the seniority rule, may seem to be non-economic in
nature at first blush, is declared to be an economic provision
gross in character.
• Reason: Seniority rule in the promotion of employees has implications on
salaries and benefits.
ULPs of Labor Organizations
Art. 260
• 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

• 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

• To violate the duty, or refuse to bargain collectively with the employer,

provided it is the representative of the employees
• To cause or attempt to cause an employer to pay or deliver or agree to
pay or deliver any money or other things of value, in the nature of an
exaction, for services which are not performed or not to be performed,
including the demand for fee for union negotiations

• 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

• To violate a collective bargaining agreement

1. Restraint and coercion of employees in the
exercise of their right to self-organization
• GR: A union cannot restrain and coerce employees in their right to
self organization.
• Exception: But they can interfere with the right to self-organize

• Interference is allowed since no labor organization would be

formed without the act of recruiting and convincing the employees
to join a labor organization in the first place. This is interference.

• Notice that Art. 259 (for employers), interference is absolutely

prohibited as compared to Art 260 which does not specifically
disallow interference.
• Examples of restraint
• An employee who is coerced to joining a union.
• Punishing a union member just because he disagrees with certain
policies of the union against which he feels strongly
• Union can impose internal sanctions, fines, etc. but it cannot be used as a ground
for an employee’s dismissal. Otherwise, this would amount to coercion and restrain
on the affected employee’s organizational rights.

• Even the violation of the union security clause does not result in automatic
dismissal. Expulsion from the union does not ipso facto lead to the expulsion of the
job.
• Proof of violation of the clause
• Union has recommendatory powers
• Employer observes due process (Alabang Country Club doctrine)
• However, a labor organization shall have the right to prescribe its
own rules with respect to the acquisition or retention of
membership.

• Such that failure to follow said rules by officers of the union may
be considered as a ULP.

• Alan M. Mendoza v. Officers of Manila Water Employees Union,

G.R. No. 201595, January 25, 2016
Alan M. Mendoza v. Officers of Manila Water
Employees Union, G.R. No. 201595, January 25,
2016
• In this case, SC declared certain union officers guilty of a ULP
because they did not follow their union’s constitution and by-laws
on acting on the appeals of the petitioner’s
suspension/disqualification from running as a union officer.
• As members of the governing board of MWEU, respondents are
presumed to know, observe, and apply the union's constitution and by-
laws.

• Thus, their repeated violations, thereof and their disregard of

petitioner's rights as a union member - their inaction on his two
appeals which resulted in his suspension, disqualification from
running as MWEU officer, and subsequent expulsion without being
accorded the foil benefits of due process - connote willfulness and bad
faith, a gross disregard of his rights thus causing untold suffering,
oppression and, ultimately., ostracism from MWEU.
A case of no restraint and coercion
• Baptisa v. Villaneuva, G.R. No 194709, July 31, 2013
• Petitiones were former members of a SEBA union. They were expelled upon
recommendation of the SEBA for violationg provisions of its constitution when they filed
a suit to impeach officers of the SEBA without first resorting to all internal remedies
available under the constitution and by laws. Under their by laws, failure to exhaust
the internal remedies warranted expulsion.

• Petitioners alleged that the SEBA union officers committed a ULP.

• SC said petitioners expulsion from the union did not amount to restraint and coercion.

• SC said there was no ULP because the petitioners expulsion from the union was not a
deliberate attempt to curtail or restrict the right to self-organization, but was instead
triggered by a commission of an act expressly sanctioned by the union’s constitution and
by-laws.
2. Discrimination
• (1) To cause or attempt to cause an employer to discriminate
against an employee, (2) including discrimination against an
employee with respect to whom membership in such
organization has been denied or (3) 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;
(1) To cause or attempt to cause an employer
to discriminate against an employee
• The intent to discriminate comes from the union, not the
employer.

• There is no need for the employer to give in to the

insitigation/inducement of the union. It is enough to “attempt to
cause an employer” to discriminate.

• If the employer does give in, then may be liable for ULP under Art.
259 (e) – discrimination as to wages, hours of work and terms and
conditions of employment.
• For the second and third types of discrimination, it involves a
situation where there is discrimination after an employee’s
membership has either been:
• Denied by the union
• Terminated by the union
• Exception to the prohibition on discrimination: Union security
clause
• Reason: by product of mutual agreement between the employer and the
SEBA.
Some examples of jurisprudence showing
discrimination
• Demoting an employee who incurs the union’s hostility

• To change an employee’s wages, hours, or other terms and

conditions of employment for the worse

• To discharge an employee for failure to pay union fines or because

he disagreed with union policies
3. Violation of duty of union to bargain
collectively
• To violate the duty, or refuse to bargain collectively with the employer,
provided it is the representative of the employees

• Counterpart provision of Article 259 (g): To violate the duty to bargain

collectively as prescribed by this Code

• Requisites
• The union is a duly certified SEBA;
• Commits any of the following
• Violates the duty to bargain collectively
• It refuses to bargain collectively with the employer
First requisite: Union must be a duly certified
SEBA
• Hence, a non-SEBA cannot commit a ULP under this paragraph.
Second requisite: either (1) SEBA violates the duty
to bargain collectively or (2) it refuses to bargain
collectively with the employer.
4. Featherbedding
• To cause or attempt to cause an employer to pay or deliver or agree to pay or
deliver any money or other things of value, in the nature of an exaction, for
services which are not performed or not to be performed, including the
demand for fee for union negotiations

• Practice, caused and induced by a union, of hiring more workers than are
needed to perform a given work, job, task, or to adopt work procedures
which is evidently senseless, wasteful, inefficient and without legitimate
justifications since it is meant purely for the purpose of employing additional
workers than are necessary.

• Done by a union in response to the laying off workers.

• Some featherbedding practices
• Because of technological advancements, the union requests that
the said changes be introduced gradually
• Or that a minimum number of personnel be retained despite such
changes

• Effect: Unnecessarily maintains or increases the number of

employees used or the amount of time consumed to work. By
increasing demand for workers, featherbedding indirectly
keeps wages higher.
Requisites
• The labor organization, its officers, agents or representatives have
caused or attempted to cause an employer either:
• (a) to pay or agree to pay any money, including the demand for fee for union
negotiations; or
• (b) to deliver or agree to deliver any things of value

• Such demand for payment of money or delivery of things of value is an

exaction (meaning it is against the will of the employer)

• The services contemplated in exchange for the exaction are not

actually performed or will not be performed
• There are no actual services rendered
• Examples
• Employer agrees to pay for standby services for employees who do not
actually perform services for the compensation received

• Union demands for an employer to enter into a contract with a union

employee when no work is being done. The demand herein is not
considered a bona fide offer of competent performance of relevant
services
Not featherbedding
• When work is done by an employee with the employer’s consent.
• Union’s demand to be compensated does not constitute featherbedding.
5. Demand or acceptance of negotiation fees
or attorney’s fees
• 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

• Counterpart provision of Article 259(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
dispute
Rationale behind the prohibition
• Reason: Prevent undue influence by the employer on the
independence of the union in its decision making over any issues it
may have with the former.

• Requisites:
• The union or any its officers, agents or representatives commit either:
• To ask for negotiation or attorney's fees;
• To accept negotiation fees or attorney’s fees;

• The negotiation fees or attorney’s fees are demanded from, or given by, the
employer as part of the settlement of any issues related to
• Collective bargaining; or
• Any other dispute
6. Violation of the CBA
• To violate a collective bargaining agreement

• Counterpart provision of Article 259 (i)

• Note that like Article 259, for it to be considered a ULP, it must be

gross in character and must relate to refusal to comply with
economic stipulations in the CBA.
Peaceful concerted activities
Concept
• The right to engage in peaceful concerted emanates from the
Constitution where the State affirms labor as a primary social
economic force and protects the rights of workers and promote
their welfare.

• The twin rights to strike and picket fall under the ambit of
protection of this provision.
Pre-requisite
• There must be the existence of an industrial or labor dispute.

• Industrial or labor dispute – includes any controversy concerning

terms, tenure, or conditions of employment, or concerning the
association or representation of persons in negotiating, fixing,
maintaining, changing, or seeking to arrange terms or conditions
of employment, regardless of whether the disputants stand in the
proximate relation of employer and employee.
Strike (Nature and concept)
• Definition – temporary stoppage of work by the concerted action of the
employees as a result of an industrial or labor dispute - Article 219 (o)

• Strike – encompasses not only complete stoppages of work, but also

includes slowdowns, mass leaves, overtime boycott, sit-downs, attempts to
damage, destroy or sabotage plant equipment and facilities, and similar
activities. (Section 2, P.D. No. 823, as amended, Solidbank Corporation v.
Gamier, G.R. No. 159460 and 461, November 15, 2010)

• Elements:
• Temporary stoppage of work by the employees;
• Through concerted action; and
• Occasioned by an industrial or labor dispute
Solidbank Corporation v. Gamier, G.R. No.
159460 and 461, November 15, 2010
• Article 212 of the Labor Code, as amended, defines strike as any
temporary stoppage of work by the concerted action of employees
as a result of an industrial or labor dispute.

• A labor dispute includes any controversy or matter concerning

terms and conditions of employment or the association or
representation of persons in negotiating, fixing, maintaining,
changing or arranging the terms and conditions of employment,
regardless of whether or not the disputants stand in the proximate
relation of employers and employees
• The term "strike" shall comprise not only concerted work
stoppages, but also slowdowns, mass leaves, sitdowns, attempts
to damage, destroy or sabotage plant equipment and facilities and
similar activities.

• The fact that the conventional term "strike" was not used by
the striking employees to describe their common course of
action is inconsequential, since the substance of the situation,
and not its appearance, will be deemed to be controlling
• Considering that these mass actions stemmed from a bargaining
deadlock and an order of assumption of jurisdiction had already
been issued by the Secretary of Labor to avert an impending
strike, there is no doubt that the concerted work
abandonment/boycott was the result of a labor dispute.
Classification of strikes
• As to nature
• Legal strike
• Illegal strike
• Economic strike – one declared to demand higher wages, overtime pay,
holiday pay, vacation pay, etc.
• Unfair labor practice/political strike – one called to protest against the
employer’s ULP enumerated in Article 259 of the LC, including gross
violation of CBA under Article 274, and union-busting under Article 278 (c)
of the LC
• Slowdown strike- one staged where workers do not quit but merely
slacked or reduced their normal work output.

• Wildcat strike – staged without majority approval of the certified

bargaining agent. It is an unannounced illegal concerted action by a
section or group of employees without the sanction or authorization of
the union or in violation of the union’s constitution and by laws without
following the proper procedure for strikes.

• Sit-down strike – one where the workers stop working but do not leave
their place of work.
As to coverage
• General strike – one which covers and extends a whole province or
country. It is designed to put pressure on the government to enact
certain labor related measures such as mandated wage increases
or to cease from implementing a law which workers considers
inimical to their interest.

• Particular strike – one which covers a particular establishment or

employer or one industry involving one union or federation.
As to purpose
• Economic strike
• Unfair labor practice strike or political strike
As to the nature of the strikers’ action
• Partial strike – one which consists of unannounced work
stoppages such as slowdowns, walkouts, or unauthorized
extension of rest periods.

• Sit-down strike

• Slowdown strike
As to the extent of the interest of strikers
• Primary strike- strike conducted by the workers against their
employer involving a labor dispute directly affecting them.

• Secondary strike – strike staged by workers of an employer

involving an issue which does not directly concern or affect their
relationship but rather, by some circumstances, affects the
workers, such as when the employer persists to deal with a third
person against whom the workers have an existing grievance.
• Staged to secure economic assistance of their employer to force the third
person to yield to the union on the issues involving it and said third person
• Sympathy strike – strike where the strikers have no demands or
grievances or labor dispute against their employer but
nonetheless stage the strike for the purpose of aiding, directly,
or indirectly, other strikers in other establishments or
companies, without necessarily having any direct relation to the
advancement of the strikers’ interest.
• This is an illegal strike. (Dee C. Chuan & Sons v. Kaisahan ng mga
Manggagawa sa Kahoy sa Filipinas, G.R. No. L-8149)
Requisites for a valid strike (Article 278 of the
LC)
• 1. It must be based on any or both of the following two (2) exclusive
grounds:
• ULP of the employer
• Collective bargaining deadlock

• 2. A notice of strike must be filed with the National Conciliation

Mediation board – DOLE

• 3. A notice must be served to the NCMB-DOLE at least 24 hours prior to

the taking of the strike vote by secret balloting, informing the office of
• Decision to conduct a strike vote
• Date, place, and time
• And asking the NCMB to supervisor the same
• 4. Strike vote must be taken where a majority of the members of
the union obtained by secret ballot in a meeting called for the
purpose approve it.

• 5. Strike vote report submitted to NCMB DOLE at least seven (7)

days before the intended date of the strike

• 6. Observance of the 15 day colling off period in cases of ULP of

the employer, or 30 days, in cases of collective bargaining
deadlock, reckoned from the filing of notice of strike
Procedural but mandatory in nature
• Seven-day period or strike ban reckoned from the submission of
the strike vote report to the NCMB DOLE should be observed in all
cases

• Although procedural in nature, all foregoing requisites are

mandatory and failure of a union or employer to comply therewith
would render a strike or lockout illegal
1. It must be based on any or both of the following
two (2) exclusive grounds: ULP (political strike)
/CBD (economic strike)
• NO OTHER GROUNDS may be invoked in a notice of strike

• Hence, violation of the following do not warrant a strike:

• Violation of the CBA
• Inter-union and internal union disputes
• Issues brought to voluntary or compulsory arbitration
• Legislated wage orders
• Labor standards cases
2. A notice of strike must be filed with the National
Conciliation Mediation board – DOLE
• Notice of strike – notification filed by a union with the NCMB DOLE informing latter of its
intention to go on strike (NCMB Manual of Procedures for Conciliation and Preventive
Mediation Cases)

• Notice should state

• the names, contact number/s, email and office addresses of the employer and the union involved;
• the nature of the industry to which the employer belongs;
• name, signature, and position of filer;
• total employment, number of union members, and workers involved, all segregated to male or female;
• effectivity of old/existing CBA;
• proof of service to the other party, in case of notice of strike/lockout (NS/L)
• unresolved issue/s;
• pending labor disputes involving either party;
• efforts taken at the plant level; and
• other relevant data that may facilitate the settlement of the dispute.
3. A notice must be served to the NCMB-DOLE at
least 24 hours prior to the taking of the strike vote
by secret balloting
• This is basically the union’s act of informing the NCMB that they
plan to stage a strike vote

• In Capitol Medical Center v. NLRC, G.R. No. 147080, April 26,

2005. The purposes of the 24-hour notice are:
• Inform the NCMB of intention to conduct a strike vote
• Give the NCMB time to decide if supervision of the strike vote is needed.
• Give NCMB ample time to prepare for deployment of the requisite
personnel, in the event NCMB decides to supervise the strike vote or upon
request of the interested party.
4. Actual conduct of the strike vote
• Requirement: Majority of the total union membership in the CBU
concerned.
5. Submission of strike vote report to NCMB
DOLE
• Purpose: Ensure that a strike vote was indeed taken and if the
report is false, to afford the members an opportunity to take the
appropriate remedy before it is too late.
6. Observance of the cooling-off period
• The cooling off period before a strike may be conducted as
follows:
• CBD – cooling off period is 30 days
• ULP – cooling off period is 15 days.

• Exception: Union busting – Period may be disregarded

7. Observance of the 7-day waiting period
(strike ban)
• After taking of the strike vote, union furnishes the NCMB-DOLE results
of the voting at least seven (7) days before actual staging of the
intended strike or lockout, subject to the cooling off-periods provided
therein

• Both the 15/30-day cooling off periods and the strike ban are both
MANDATORY PERIODS

• Purpose of 7-day period or strike ban

• Intended to give the NCMB-DOLE an opportunity to verify whether the projected
strike really carries the approval of the majority of the union members
Distinguish with the cooling period
• The cooling off period is counted from the time the notice of strike
is up to the actual staging thereof.

• The 7-day period is counted from the submission of the strike vote
to the NCMB DOLE.

• Hence, the two periods must be SEPARATE.

• What if the strike vote is taken and reported within the cooling off
period?

• Note that it is not prohibited for a strike vote to be conducted within the
cooling off period

• Effect: The strike ban (7-day period) is instead counted from the
expiration of the 15-day cooling off period instead from the
submission of the strike vote report to the NCMB. (Gold City
Integrated Port Service v. NLRC, G.R. No. 103560, July 6, 1995)
Example (ULP)
• Notice of strike: April 1, 2024
• Strike vote: April 5, 2024
• Strike report: April 7, 2024
• When can actual strike be conducted: April 24, 2024

• Failure to follow any of the periods: Fatal

Example (ULP) – No overlap
• Notice of strike: April 1, 2024
• Strike vote: April 16, 2024
• Strike report: April 20, 2024
• When can actual strike be conducted: April 28, 2024
Union busting
Union-busting (Article 278 (c))
• Requisites
• A dismissal from employment of union officers duly elected in accordance
within the union’s constitution and by laws.

• Existence of the union is threatened by such dismissal.

• Hence, union busting does not occur

• When dismissal involves union officers but such dismissal does not threaten
union’s existence
• When dismissal involves union officers not elected in accordance with the
union’s constitution and by-laws
• Dismissal of appointive union officers; and
• Dismissal of ordinary union members
Union busting is a ULP, hence valid ground for
a strike
• Note however, that a dismissal should have occurred as a pre-
requisite. If there is no dismissal, there can be no union busting.

• Pilipino Telephone Corp v. PILTEA, G.R. No. 160058, June 22, 2007
- There were mass promotions made by the employer. Employer
cannot be said to have committed union-busting as a promotion is
obviously not a dismissal.
Pilipino Telephone Corp v. PILTEA
• Neither does that (sic) PILTEL's promotion of some members of
respondent union constitutes (sic) union busting which could be a valid
subject of strike because they were not being dismissed. In fact, these
promoted employees did not personally come forward to protest their
promotion vis-à-vis their alleged option to remain in the union
bargaining unit of the rank and filers

• This is consistent with our ruling in Bulletin Publishing Corporation v.

Sanchez that a promotion which is manifestly beneficial to an
employee should not give rise to a gratuitous speculation that it
was made to deprive the union of the membership of the benefited
employee.
Even the dismissal of ONE employee can be
considered union busting as long as it interferes
with the right of self-organization and jeopardizes
the existence of the union.
• Colegio de San Juan de Letran v. Association of Employees and
Faculty of Letran, G.R. No. 141471, September 18, 2000

• The dismissal of the union president was considered union-

busting because it interfered with the president’s right to self-
organization and was done to clearly frustrate the union in its
desire to forge a new CBA with the school.

• Her removal had the effect of union busting because it stripped

the union of strong-willed leadership.
• The dismissal of Ms. Ambas was clearly designed to frustrate the
Union in its desire to forge a new CBA with the College that is
reflective of the true wishes and aspirations of the Union
members. Her dismissal was merely a subterfuge to get rid of
her, which smacks of a pre-conceived plan to oust her from the
premises of the College. It has the effect of busting the Union,
stripping it of its strong-willed leadership.
Union-busting overrides the 15-day cooling
period (but not the 7 day strike ban)
• Unlike other ULPs and CBD, when the ground is union-busting, the
union may take action immediately, and the 15-day cooling off
period does not apply.

• However, note that the 7-day waiting period or strike ban, filing
of a notice of strike, conduct of the strike vote, and submission
of the results to the NCMB DOLE should all be complied with
(NCMB Primer on Strike, Picketing and Lockout).
Example (Union Busting)
• Notice of strike: April 1, 2024
• Strike vote: April 5, 2024
• Strike report: April 7, 2024
• When can actual strike be conducted: April 15, 2024
Strikes in hospitals, clinics, and medical
institutions (Art. 278 (g))
• As much as possible, strikes should be avoided in these industries

• Requirement if strike/lock-out inevitable

• Operational guidelines of DO 40-G-03, Series of 2010
• Striking union or employer is obliged to maintain an effective skeletal force during
strike or lockout
• Striking union or employer shall ensure the proper and adequate protection of life
and health of parents particularly in emergency cases.
Strike in the government service
• We have to distinguish
• Employees of GOCCS organized under the corporation codes (no original
charter) and are, therefore, covered by the Labor Code
• Employees of the government and its political subdivisions or instrumentalities,
including GOCCs organized with original charters, hence covered by the Civil
Service Law.

• Remember, for EEs No.1, they possess enjoy the right to self
organization and to strike

• For EEs No.2, they only enjoy the right to self-organization but cannot
exercise the right to strike.
Example of strike in the government service
• Jacinto vs. CA
• The SC considered the act of not holding classes in several public
schools (covered by the Civil Service Commission) during the
corresponding period a strike which they cannot engage in.
• The teachers’ complained about failure to implement measures related to
Secondary Education Fund and fringe benefits, clothing allowance, etc.

• This is true, even if the conventional term “strike” was not used by
the participants to describe their common course of action. It is
the substance of the situation that controls. (Bagalisan vs. CA)
Government workers in the civil service cannot
strike but can form unions or associations and
petition Congress for better terms
• Employees in the civil service may not resort to strikes, walkouts
and other temporary work stoppages, like workers in the private
sector, to pressure the Government to accede to their demands.
In Jacinto, the public school teachers relied on
semantics
• Petitioners, who are public school teachers and thus government
employees, do not seek to establish that they have a right to strike.
Rather, they tenaciously insist that their absences during certain
dates in September 1990 were a valid exercise of their
constitutional right to engage in peaceful assembly to petition
the government for a redress of grievances. They claim that
their gathering was not a strike.
• Strike, as defined by law, means any temporary stoppage of
work by the concerted action of employees as a result of an
industrial or labor dispute.

• A labor dispute includes any controversy or matter concerning

terms and conditions of employment; or the association or
representation of persons in negotiating, fixing, maintaining,
changing or arranging the terms and conditions of employment,
regardless of whether the disputants stand in the proximate
relation of employers and employees
• It cannot be denied that the mass action or assembly staged by
the petitioners resulted in the non-holding of classes in
several public schools during the corresponding period.
• Had petitioners availed themselves of their free time —
recess, after classes, weekends or holidays — to dramatize
their grievances and to dialogue with the proper authorities
within the bounds of law, no one — not the DECS, the CSC or
even this Court — could have held them liable for the valid
exercise of their constitutionally guaranteed rights.

• As it was, the temporary stoppage of classes resulting from their

activity necessarily disrupted public services, the very evil sought
to be forestalled by the prohibition against strikes by government
workers.
Prohibited acts per law, rules and
jurisprudence, pertaining to strikes
• 1. Not complying with procedural but mandatory requisites

• 2. Striking without collective bargaining. (See Art. 278 (c))

• 3. When it involves non-strikeable grounds.
• No CBD
• No ULP
• Not union busting
• Inter-union and intra-union disputes
• Simple violation of the CBA (merely a grievable issue subject to subject to
voluntary arbitration.
• Does not involve gross violation of economic provisions
• Violation of labor standards. (Art 128 of the LC provides for the manner of
seeking redress)
• Legislated wage orders (subject to voluntary negotiation or arbitration
under RA 6727 – Wage Rationalization Act)
• 4. Declaring and staging a strike for an unlawful purpose
• Strike staged by a union to compel employer to extend recognition to it as
the SEBA of the employees of a bargaining unit. (Steel Corporation of the
Philippines v. SCP Employees Union, G.R. Nos. 16829-30, April 15, 2008)

• A strike staged to subvert valid contractual commitments or judicial

orders lawfully issued (ALPAP v. CIR, G.R. Nos. L-33705 & L-35206, April
15, 1977)
Steel Corporation of the Philippines v. SCP
Employees Union
• The strike undertaken by the officers of respondent union is
patently illegal because it was a union-recognition-strike which is
not sanctioned by labor laws.

• The certification election that was conducted where respondent

emerged as winner, not having been recognized as valid, it has no
authority to represent the rank and file employees of petitioner.
Thus, it could not ask petitioner to bargain with it.
A strike staged to subvert valid contractual
commitments or judicial orders lawfully issued
• ALPAP v. CIR, G.R. Nos. L-33705 & L-35206, April 15, 1977.

• In any event, the dispute below having been certified as existing

in an industry indispensable to the national interest, the said
pilots' rank disregard for the compulsory orders of the industrial
court and their daring and calculating venture to disengage
themselves from that court's jurisdiction, for the obvious purpose
of satisfying their narrow economic demands to the prejudice of
the public interest, are evident badges of bad faith.
• 5. Declaring and staging a strike in violation of the “no strike, no
lock-out” clause in the CBA
• This provision only bars economic strikes but not political strikes.
(Malayang Samahan ng mga Manggagawa sa M. Greenfield v. Ramos, G.R.
No. 113907, February 28, 2000)
• 6. Staging a strike without submitting the issues to the grievance
machinery/voluntary arbitration.

• 7. Declaring and staging a strike while conciliation and mediation

proceedings are on-going with the NCMB.
• Disregard of such proceedings is a blatant violation of the rules to
implement the Labor Code which explicitly provide that parties are
expected to bargain collectively and in good faith, and prohibits them
from impeding or disrupting the proceedings. (Filipino Pipe and Foundry
Corporation v. NLRC, G.R. No 115180, November 15, 1999)
Filipino Pipe and Foundry Corporation v.
NLRC, G.R. No 115180, November 15, 1999
• The union filed a notice of strike on February 10, 1986. The
conciliation conferences was set for Feb 24, 1986 and later on
moved to March 3, 1986.

• On March 3, 1986, union went on strike without waiting for the

outcome of the conciliation conferences.

• Company sought to declare strike illegal

Sec 6, Rule XXII, Book V, of the IRR of the LC
• Sec. 6. Conciliation. — Upon receipt of the notice (of strike), the
regional branch of the Board shall exert all efforts at mediation and
conciliation to enable the parties to settle the dispute amicably. The
regional branch of the Board may, upon consultation, recommend to
the parties that the notice be treated as a preventive mediation case. It
shall also encourage the parties to submit the dispute to voluntary
arbitration

• During the proceedings, the parties shall not do any act which may
disrupt or impede the early settlement of the dispute. They are
obliged as part of the duty to bargain collectively in good faith, to
participate fully and promptly in the conciliation meetings called by the
regional branch of the board.
• The same strike blatantly disregarded the prohibition on the doing
of any act which may impede or disrupt the conciliation
proceedings, when the union staged the strike in the early morning
of March 3, 1986, the very same day the conciliation conference
was scheduled by the former Ministry of Labor.
• 8. Declaring and staging a strike in defiance of an assumption or certification
or return to work order
• Art. 278 (g) provides for the awesome power of the Secretary of Labor to assume
jurisdiction of labor disputes or certify the same to the NLRC for compulsory arbitration.
Defiance by a union, its officers, or members of the assumption and certification order
by going on with the strike is illegal and may be valid grounds to dismiss the erring
employees.

• 9. Staging a strike when expressly prohibited by law.

• Strike in the government service (Implementing rules and regulations of EO 180 to govern
the exercise of the right of government employees to self-organization)

• 10. Staging a strike by the minority union.

• This undermines the will of the majority (United Restauror’s Employees Labor Union and
Labor Union Paflu v. Torres, G.R. No. L-24993, December 18, 1968)
• 11. Declaring and staging a welga ng bayan strike.
• This is basically a general strike and an extended sympathy strike which is
illegal since there is no real labor dispute between the employer and the
union. (Biflex Philippines Labor Union v. Filfelx Industrial Manufaturing
Corporation, G.R. No. 155679, December 19, 2006)
Liabilities resulting from the
conduct of strike
Liability for participation in an illegal strike.
• We must make a distinction between union officers and ordinary
members.

• Union officers
• Mere finding or declaration of illegality of the strike will result in the termination
of all union officers WHO KNOWINGLY PARTICIPATED IN THE ILLEGAL STRIKE

• A finding that he actually commits an ILLEGAL ACT DURING THE STRIKE IS NOT
REQUIRED

• Distinguish: Mere participation in the illegal strike v. the commission of an illegal

act during the strike
“Knowing participation” doctrine
• Abaria v. NLRC, G.R. Nos. 154113, December 7, 2011.

• The knowing participation of union officers may be ascertained

and established:
• Persistence in holding picketing activities despite declaration by the
NCMB that their union was not the duly registered as a legitimate labor
organization.
• Filing of notice of strike and conducting a strike vote despite their union
having no legal personality to negotiate with their employer.
2. Ordinary Union Members
• Mere participation in an illegal strike is not a sufficient ground to
terminate employment.

• There must be commission of illegal acts.

• Hence, the mere illegality of the strike will not result in their
termination.

• It must be shown by substantial evidence that he KNOWINGLY

PARTICIPATED in the commission of illegal acts during the strike (G & S
Transport Corp v. Infante, G.R. No. 160303, September 13, 2007)
In Abaria, the court confirmed the dismissal of the
officers who participated in the strike, but did not
hold regular union members liable
• Considering their persistence in holding picketing activities
despite the declaration by the NCMB that their union was not duly
registered as a legitimate labor organization . The CA therefore did
not err in ruling that the termination of union officers Perla Nava,
Catalina Alsado, Albina Bañez, Hannah Bongcaras, Ernesto
Canen, Jesusa Gerona and Guillerma Remocaldo was valid and
justified.
As to the union members
• With respect to the dismissed union members, although MCCHI
submitted photographs taken at the picket line, it did not
individually name those striking employees and specify the
illegal act committed by each of them. As to the affidavits
executed by non-striking employees, they identified mostly union
officers as the persons who blocked the hospital entrance,
harassed hospital employees and patients whose vehicles were
prevented from entering the premises.
Solidbank Corporation v. Gamier, G.R. No. 159460,
November 15, 2010
• To hold ordinary union members liable, those who participated in
the commission of the illegal acts must not only be identified
but the specific illegal acts they each committed should be
described with particularity.
Reasons for distinction
• Union officers have the duty to guide their members to respect the
law.

• Hence, absence a showing that the employers are union officers,

they cannot be dismissed based on the mere declaration of the
illegality of the strike.
What are illegal acts?
• When an illegal act is commited, the legality or illegality of the
strike becomes IMMATERIAL.

• A union officer or regular member may be validly terminated once

an illegal act is commited.
What are illegal acts?
• The term illegal act has no fixed definition under the law and may
encompass a number of acts that violate existing labor or criminal
laws:

• Some Examples
• Barricades: No person shall obstruct, impede, or interfere with by force,
violence, coercion, threats or intimidation, any peaceful picketing by
employees during any labor controversy or in the exercise of the right to
self-organization or collective bargaining, or shall aid or abet such
obstruction or interference
• Commission of crimes or unlawful acts
• Violation of order, prohibition, or injunction issued by the DOLE
Secretary/NLRC in connection with assumption of jurisdiction.
Important principles
• Threshold of evidence/proof required: Substantial evidence.
(Phimco Industres v. Phimco Industries Labor Association, G.R.
No. 170830, August 11, 2010.)

• Liability for commission of the illegal acts are determined on an

individual basis.

• Dismissal of the criminal case filed by reason of the illegal acts

committed during the strike does not extinguish liability under the
Labor Code.
Liabilities resulting for defiance
of assumption order/return to
work order
• Remember Art. 279 (g) - When, in his opinion, there exists a labor
dispute causing or likely to cause a strike or lockout in an
industry indispensable to the national interest, the Secretary of
Labor and Employment may assume jurisdiction over the
dispute and decide it or certify the same to the Commission for
compulsory arbitration.
Effect if violated
• Unlike the participation of union officers and members in an illegal
strike, which makes a distinction as to their penalties, no such
distinction exists when an assumption order by the DOLE or a
certification order to the NLRC for compulsory arbitration is
violated.

• Effect: Whether union officer or member; may be dismissed:

Jurisprudence
• Sarmiento v. Tuico
• Certain employees were validly dismissed by the employer for violating
the return-to-work order issued by the DOLE Secretary. Said acts amount
to having abandoned their employment.

• Union of Filipino Employees v. Nestle Phlippines, G.R. No. 88710-

13, December 19, 1990.
• Strike was undertaken despite the assumption order issued by the
Secretary of Labor
• A strike undertaken despite the issuance by the Secretary of Labor of an
assumption or certification order becomes a prohibited activity and thus
illegal, pursuant to the second paragraph of Article 279 of the Labor Code
Period of defiance is immaterial
• Length of time within which the assumption/certification/rwo is
violated is not significant in determining liability.:
• University of San Augustin Employees Union v. the CA – 8:45 am to 5:25
pm
• Federation of Free Workers v. Inciong – 9 days
Notable jurisprudence
• Assumption of certification order may be served at any time o the
day or night.

• There is no practice of giving 24 hours o strikers within which to

return to work. There is no law or jurisprudence recognizing said
practice. (University of San Augustin Employees Union v. the CA)
Picketing
• the marching to and from at the employer's premises, usually
accompanied by the display of placards and other signs making
known the facts involved in a labor dispute

• Workers have the right to peaceful picketing, but no person picketing is

allowed to commit any act of violence, coercion, or intimidation or
obstruct the free passage from and to the employer’s premises for
lawful purposes or to obstruct public thoroughfares.

• Conversely, no person is permitted to obstruct by violence, coercion, or

intimidation any peaceful picketing by workers during any labor
controversy.
• Absence of employment relationship, unlike strikes, cannot
prohibit picketing. (Philippine Association of Free Labor Unions v.
Court of First Instance, G.R. No. L-49580, January 17, 1983)
The mandatory requisites for strike do not
apply.
• The only requirement is found in Article 279 (e) of the Labor Code

• (e) No person engaged in picketing shall commit any act of

violence, coercion or intimidation or obstruct the free ingress to or
egress from the employer’s premises for lawful purposes, or
obstruct public thoroughfares.
Distinction between strike and picketing
• Strike – to withhold or stop work by the concerted action of the
employees as a result of an industrial or labor dispute. The work
stoppage may be accompanied by picketing.

• Picketing – focuses on publicizing a labor dispute and its incidents

to inform the public of what is happening in the company. A picket
is simply a march to and from the employer’s premises, usually
accompanied by display of placards making known of facts
involved in the labor dispute.
How to determine whether it is a picket or
strike?
• Totality of circumstances doctrine

• Santa Rosa v. Coca Cola Plant Employees Union v. Coca Cola

Bottlers Phils., Inc, G.R. No. 164302-03, January 24, 2007.
Santa Rosa v. Coca Cola Plant Employees Union v.
Coca Cola Bottlers Phils.
• Petitioners' insistence to stage a strike was evident in the fact that:
• There was an amended notice of strike filed
• 106 members of the petitioner union, whose leaves were disapproved
opted not to work and gather in front the company premises to hold a
mass protest of action
• Placards with slogans such as “yes kami strike,” “protest kami,” “sahod”
etc.
• The employees essentially engaged in a concerted activity that affected
the company’s operations.
• The fact that the conventional term ‘strike’ was not used by the
striking employees to describe their common course of action is
inconsequential, since the substance of the situation, and not its
appearance, will be deemed to be controlling." The term "strike"
encompasses not only concerted work stoppages, but also
slowdowns, mass leaves, sit-downs, attempts to damage, destroy
or sabotage plant equipment and facilities, and similar activities

• What is definitive of whether the action staged by petitioners is a

strike and not merely a picket is the totality of the circumstances
surrounding the situation.
A picket only becomes unlawful when it
obstructs points of ingress and egress.
• Phimco Industries v. Phimco Industrial Labor Association, G.R.
No. 170830, August 11, 2010.

• While picketing, it was maintained so close to the company gates

that it virtually constituted an obstruction, especially when the
strikers joind hands, shoulder to shoulder, and blocked the free
ingress to and egress from the company premises.
• To strike is to withhold or to stop work by the concerted action of employees
as a result of an industrial or labor dispute. The work stoppage may be
accompanied by picketing by the striking employees outside of the company
compound.

• A picket simply means to march to and from the employer’s premises,

usually accompanied by the display of placards and other signs making
known the facts involved in a labor dispute.

• Protected picketing does not extend to blocking ingress to and egress

from the company premises. That the picket was moving, was peaceful
and was not attended by actual violence may not free it from taints of
illegality if the picket effectively blocked entry to and exit from the
company premises.
• The manner in which the respondent union officers and members
conducted the picket in the present case had created such an
intimidating atmosphere that non-striking employees and even
company vehicles did not dare cross the picket line, even with
police intervention. Those who dared cross the picket line were
stopped. The compulsory arbitration hearings bear this out.
Lockouts – Art. 219 (p)
• Means any temporary refusal of an employer to furnish work as
a result of an industrial or labor dispute.

• If it is not temporary – then it already amounts to a closure of the

establishment.
• Effect: Since it amounts to closure, the validity of said act will no longer
be judged on the basis of whether it has complied with the criteria for a
valid lock-out. Rather it will be based on the requisites for a valid closure
of establishment (authorized cause). Hence, entitling the separated
employee to separation pay.
Forms
• Shutdowns
• Mass retrenchments
• Dismissal initiated by the employer
Requisites for a valid lockout
• 1. Must be based on
• ULP
• CBD

• 2. Notice of lockout filed with the NCMB DOLE

• 3. Notice of lockout served to NCMB DOLE 24 hours prior to the

conduct of the actual lockout vote.
• 4. Lockout vote must be taken where majority of the members of the
Board of Directors of the corporation or association/partners ina
partnership obtained in a secret ballot called for that purpose

• 5. A lockout vote report is submitted to NCMB Dole at least seven (7)

days before the intended date of lockout.

• 6. Observance of the cooling off period reckoned from date of filing of

notice of lockout:
• 15 days for ULP of the labor organization
• 30 days in case of collective bargaining deadlock
• 7. 7 day waiting period reckoned after submission of the lockout
vote report to the NCMB-DOLE
Consequences of illegal lockout
• 1. Illegally locked out employees entitled to reinstatement with
payment of full backwages and other benefits. (Art 279).

• 2. When both parties are in pari delicto

• When employer commits an illegal lockout and the union commits an
illegal strike- dismissal of striking employees is unwarranted and they
should be reinstated.
• Automotive Engines Rebuilders v. Progresibiong Unyon ng mga
Manangagwa sa AER, G.R. No. 160138
Automotive Engines Rebuilders v. Progresibiong
Unyon ng mga Mnangagwa sa AER, G.R. No.
160138
• Petitioner employer filed a complaint against respondent union for illegal
concerted activities. It also suspended 7 union members who tested positive
for illegal drugs.

• The union filed a counter charge for ULP, illegal suspension, and illegal
dismissal;

• It was ruled that the employees should be reverted to their respective

positions prior to the illegal strike and illegal lockout.

• Nonetheless, if reinstatement is no longer feasible, the concerted employees

should be given separation pay up to the date set for the return of the
complaining employees in lieu of reinstatement.
Assumption of Jurisdiction by
the DOLE Secretary
The DOLE Secretary has two options when
exercising its wide discretion – Art. 278 (g)
• When, in his opinion, there exists a labor dispute causing or likely
to cause a strike or lockout in an industry indispensable to the
national interest, the Secretary of Labor and Employment may:
• Assume jurisdiction over the dispute and decide it; or
• Certify the same to the Commission for compulsory arbitration

• Wide discretion – law sets no criteria

Interplay of options
• The DOLE Secretary, having two options may do any of the
following:
• Assume jurisdiction over a labor dispute and at the same time certify it to
the NLRC for compulsory arbitration (PASVIL/Pascual Line-NAFLU v.
NLRC, G.R. No. 124823, July 28, 1999).
• DOLE Secretary assumed jurisdiction and certified it to the NLRC for compulsory
arbitration on the same day

• Initially assume jurisdiction over a labor dispute, and later on certify it on

a later date (Samahang Manggagawa sa Sulpicio Lines, Inc – NAFLU v.
Sulpicio Lines, Inc, G.R. No. 140992, March 25, 2004)
Samahang Manggagawa sa Sulpicio Lines, Inc –
NAFLU v. Sulpicio Lines, Inc, G.R. No. 140992,
March 25, 2004
• March 1, 1994 – petitioner union filed with the NCMB a notice of strike
• March 23 – DOLE Secretary issues assumption order
• May 20 – petitioner union filed a second notice of strike alleging union.
The union employees did not report for work and conducted the strike.
• May 20 – DOLE Secretary issued an order directing striking employees
to return to work and certifying the labor dispute to the NLRC for
compulsory arbitration
• September 29 – It was ultimately the NLRC that declared the strike of
petitioner’s officers and members illegal.
Nature of assumption order
• Exercise of police power which should only be exercised in
national interest cases
President’s involvement
• While the DOLE Secretary assumes jurisdiction over national
interest disputes, the President is not precluded from determining
the industries that, in his opinion, are indispensable to the
national interest, and from intervening at any time and assuming
jurisdiction over any such labor dispute in order to settle or
terminate the same. (Art. 279 g)

• Note that while the President can assume, there is no statement

as whether he can “certify” a labor dispute to the NLRC for
compulsory arbitration.
Industries indispensable to national interest
• DOLE Secretary has wide discretion.

• But Section 16, Rule XXII, Book V of the Omnibus Rules Implementing the
Labor Code as amended provides a list of industries indispensable to the
National Interest:
• Hospital sector
• Electric Power Industry
• Water supply services, to exclude small water supply services such as bottling and
refilling
• Air traffic control
• Such other industries as may be recommended by the National Tripartite Peace Council

• Enumeration is not exclusive.

Other examples
• Schools
• Manufacture of drugs and pharmaceuticals
Because it involves wide discretion, it can
also be subject to grave abuse of discretion
• Production of telephone directories (GTE Directories Corporation
v. Sanchez, G.R. No. 76219, May 27, 1991) – can hardly be said to
be an industry affecting national interest. Its services while of
value cannot be similarly categorized with those of banks,
hospitals.
• The production and publication of telephone directories, which is the
principal activity of GTE, can scarcely be described as an industry
affecting the national interest.

• GTE is a publishing firm chiefly dependent on the marketing and sale of

advertising space for its not inconsiderable revenues. Its services,
while of value, cannot be deemed to be in the same category of
such essential activities as "the generation or distribution of
energy" or those undertaken by "banks, hospitals, and export-
oriented industries." It cannot be regarded as playing as vital a role in
communication as other mass media.
DOLE Secretary can even assume jurisdiction
even in the absence of a formal declaration of CBA
deadlock by both parties
• Tabangao Shell Refinery Employees Association v. Pilipinas Shell
Petroleum Corporation, G.R. No. 170007, April 7, 2014

• Here, there was a labor dispute over certain terms of the CBA. The
SC said that the DOLE Secretary’s assumption power extends to
all questions and controversies from said dispute, including
matters of bad faith bargaining. This is regardless if there was
was an actual deadlock in negotiations or not.
Tabangao
• Union’s contention: Secretary erred in assuming jurisdiction over the
‘CBA’ case when it [was] not the subject matter of the notice of
strike" because the case was "all about ‘ULP’ in the form of bad
faith bargaining." For the union, the Secretary of Labor and
Employment should not have touched the issue of the CBA as there
was no CBA deadlock at that time, and should have limited the
assumption of jurisdiction to the charge of unfair labor practice for
bargaining in bad faith

• Union’s 2nd contention: The evidentiary value of the Notice of Strike for
ULP of BAD FAITH BARGAINING (Annex "M" of the petition) cannot be
taken for granted. It is the very important documentary evidence that
shows what is the existing "labor dispute" between the parties
• There was already an actual existing deadlock between the parties.
What was lacking was the formal recognition of the existence of such a
deadlock because the union refused a declaration of deadlock

• The Secretary of the DOLE has been explicitly granted by Article 263(g)
of the Labor Code the authority to assume jurisdiction over a labor
dispute causing or likely to cause a strike or lockout in an industry
indispensable to the national interest, and decide the same
accordingly. And, as a matter of necessity, it includes questions
incidental to the labor dispute; that is, issues that are necessarily
involved in the dispute itself, and not just to that ascribed in the
Notice of Strike or otherwise submitted to him for resolution
Prior notice and hearing is not required
• Magnolia Poultry v. Sanchez, G.R. No. 76227-28, November 5,
1986
• The discretion to assume jurisdiction may be exercised by the DOLE
Secretary without the necessity of prior notice or hearing given to any of
the parties.
• Rationale: Exigency of the situation in relation to national interest
Same rule holds true for certification and
assumption orders before the actual conduct of a
strike.
• The sole requirement is that there must be a labor dispute
involving a national interest industry
Effects of assumption or certification orders on
strikes and lockouts (Section 3a of Rule VIII of the
NLRC Rules of Procedure)
• On an intended/impending strike.
• the intended or impending strike or lockout is automatically enjoined,
notwithstanding the filing of any motion for reconsideration of the
certification order nor the non- resolution of any such motion which
may have been duly submitted to the Office of the Secretary of Labor and
Employment.
• When there is already an actual strike or lockout
• If a work stoppage has already taken place at the time of the 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
• When cases are already filed
• All cases between the same parties, except where the certification order
specifies otherwise the issues submitted for arbitration which are already
filed or may be filed and are relevant to or are proper incidents of the
certified case, shall be considered subsumed or absorbed by the certified
case, and shall be decided by the appropriate Division of the
Commission.
• Other pending cases which the DOLE Secretary may not be aware
about
• The parties to a certified case, under pain of contempt, shall inform their
counsels and the Division concerned of all cases pending with the
Regional Arbitration Branches and the Voluntary Arbitrators relative or
incident to the certified case before it.
Certification order
Concept
• Instead of assuming and deciding the labor dispute, the DOLE
Secretary merely certifies the issue to the NLRC so that it is the
NLRC that hears and decides the labor dispute through
compulsory arbitration

• Note that the assumption order to the NLRC includes cases that
are currently being decided by the Labor Arbiter. These cases are
now to be decided by the NLRC upon certification.
International Pharmaceuticals v. Secretary of
Labor and Employment, G.R. Nos. 92981-83,
January 9, 1992
• Petition contended that it should have been the Labor Arbiter, and
not the NLRC that should have taken cognizance of the complaint
for illegal strike/clearance for termination.

• The Supreme Court disagreed with Petitioner stating that when

there is an assumption/certification order, the same covers all
questions and controversies arising therefrom, including cases
otherwise belonging originally and exclusively to the Labor
Arbiter.
Return to work order
Concept
• Upon assumption or certification by the DOLE Secretary, the same
necessarily includes an order for workers to return to work
immediately and for employers to readmit all of them under the same
terms and conditions prevailing before the strike or lockout.

• The RWO is valid statutory part and parcel of the assumption and
certification orders (Sarmiento v. Tuico).

• As a general rule, it is not necessary for DOLE Secretary to issue a

separate RWO.
278 (g)
• (g) ….Such assumption or certification 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.
Exceptions (When a separate RWO is
needed)
• When at time of issuance of assumption/certification order, no
strike has been conducted by the union
• When there is already an on-going strike, but issuance of an RWO
is necessary to emphasize the need for strikers to stop the
picket and return to work
• Another RWO is issued since the strikers defied first RWO
Actual reinstatement preferred over payroll
reinstatement (Actual reinstatement rule)
• As a general rule, the concept of return-to-work under Article 278(g)
[263(g)] contemplates actual reinstatement and not payroll
reinstatement. This is in accordance with the intent and spirit of this
article.

• The purpose of the law is to bring back the workers to their original
work under the same terms and conditions prevailing before the
strike or lockout.

• Payroll reinstatement is generally not appropriate in RWOs because

it is in the nature of a permanent relief
Exceptions (when payroll reinstatement is
justified)
• Such is only justified in national interest cases, where actual
reinstatement is impracticable or not conducive in attaining
the purposes of the law. Hence, the exception can only be
applied on very special circumstances.
UST v. NLRC, G.R. No. 89920, October 18, 1990
(The Special Circumstance Rule)
• By reason of the special circumstance that at the time the teachers
were ordered to return to work by reason of the DOLE Secretary's
certification of the labor dispute to the NLRC for compulsory
arbitration, they could not be given back their academic
assignments since the return-to-work order of the DOLE Secretary
was issued in the middle of the first semester of the academic year.

• The NLRC, to which the labor dispute was certified, was therefore
faced with a situation where the striking teachers were entitled to a
return-to-work order, but the university could not immediately reinstate
them since it would be impracticable and detrimental to the
students to change teachers at that point.
• SC said in the light of our rulings on the impropriety of the substantially
equivalent academic assignments and the need to defer the changes of
teachers until the end of the first semester, the payroll reinstatement will
actually minimize the petitioner's problems in the payment of full backwages.

• To change the faculty members around the time of final examinations

would adversely affect and prejudice the students whose welfare and
interest we consider to be of primordial importance and for whom both the
University and the faculty union must subordinate their claims and desires.

• SC resolved the actual reinstatement of the non-reinstated faculty

members, pending resolution of the labor controversy before the NLRC,
may take effect at the start of the second semester of the schoolyear
1990-1991 but not later.
Note that the RWO is so urgent that even the
issue of legality of the strike is immaterial
• The RWO is issued pending the determination of the legality of the strike,
it is not correct to say that it may be enforced only if the strike is legal and
may be disregarded if the strike is illegal.

• Precisely, said the Supreme Court in Asian Transmission Corporations v.

NLRC, the purpose of the return-to-work order is to maintain the status quo
while the determination is being made.

• Otherwise, the workers who contend that the strike is legal can refuse to
return to their work and use a standstill in the company operations while
retaining the positions they refuse to discharge or allow management to fill.
Worse, they will also claim payment for work not done on the ground that
they are still legally employed although actually engaged in activities inimical
to their employer's interest.
Injunctions
GR: There is a prohibition on the issuance of
injunctions against validly declared strikes and
lockouts UNLESS illegal acts are committed or
threatened to be committed
• Exceptions: In some cases, injunctions issued to enjoin the
conduct of the strike itself and not only the commission of illegal
or prohibited acts in the course thereof, were held to be valid
• San Miguel v. NLRC
• The notice of strike filed by the union has been converted into a preventive
mediation case. Having been so converted, a strike can no longer be staged
based on said notice. Upon such conversion, the legal effect is that there is no
more notice of strike to speak of.

• When the NCMB ordered the preventive mediation, the union had thereupon
lost the notice of strike it had filed. However, the NCMB which effected the
conversion has, under the law, no coercive powers of injunction. Consequently,
petitioner company in the instant case sought recourse from the NLRC.

• The NLRC, however, issued a TRO only for the free ingress to and egress from
petitioner's plants, but did not enjoin the conduct of the unlawful strike itself. It
ignored the fatal lack of notice of strike consequent to the conversion thereof
into a preventive mediation case
• Staging a strike based on non-strikeable grounds (San Miguel v.
NLRC, G.R. No. 99266, March 2, 1999) – an injunction is proper in
this case.
Even regular courts are prohibited from
issuing injunctions against strikes or lockouts
• It is the NLRC that issues restraining orders or injunctions
pursuant to the exercise of its injunctive power. In contrast,
regular courts are absolutely prohibited to grant any injunctive
relief in cases of strikes or lockouts.

• Reason: Regular courts of law have no jurisdiction to act on labor

cases
Same rule on injunctions applies for picketing
• Exceptions:
• Where picketing is carried out through use of illegal means
• Picketing involves use of violence and other illegal acts
• Where picketing affects the rights of third parties and injunction becomes
necessary to protect such rights.
• Innocent Bystander rule
• In situations where the picket affects not only the employer but also the business
operations of other establishments owned by third parties, an injunction may be
secured by the third party establishment/owners/ third partiesfrom the regular
courts to enjoin the picket.

• Under the "Innocent Bystander Rule," the third-party employers or "Innocent bystanders"
who have no employer-employee relationship with the picketing strikers, may apply
for injunction with the regular courts (not the NLRC) to enjoin the conduct of the
picket. Because of the absence of such employer-employee relationship, the NLRC
cannot entertain such application for injunction from "innocent bystanders."