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Labor II Finals Reviewer Prof. P. Daway 2nd semester, AY ’10-‘11

Janz Hanna Ria N. Serrano

VII. Collective Bargaining: General Concept, Procedure and Issues A. General Concept

1. Policy Declaration LC, 211A(a). It is the policy of the State: To promote and emphasize the primacy of free collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling labor or industrial disputes LC, 211B. To encourage a truly democratic method of regulating the relations between the employers and employees by means of agreements freely entered into through collective bargaining, no court or administrative agency or official shall have the power to set or fix wages, rates of pay, hours of work or other terms and conditions of employment, except as otherwise provided under this Code. (As amended by Section 3, Republic Act No. 6715, March 21, 1989) 1987 Const., Art. XIII, Sec. 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.

It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.

The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.

The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth.

2. Nature and Purpose Kiok Loy v. NLRC. Collective bargaining which is defined as negotiations towards a collective agreement, 6 is one of the democratic frameworks under the New Labor Code, designed to stabilize the relation between labor and management and to create a climate of sound and stable industrial peace. It is a mutual responsibility of the employer and the Union and is characterized as a legal obligation. So much so that Article 249, par. (g) of the Labor Code makes it an unfair labor practice for an employer to refuse "to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work, and all other terms and conditions of employment including proposals for adjusting any grievance or question arising under such an agreement and executing a contract incorporating such agreement, if requested by either party. | While it is a mutual obligation of the parties to bargain, the employer, however, is not under any legal duty to initiate contract negotiation. 7 The mechanics of collective bargaining is set in motion only when the following jurisdictional preconditions are present, namely, (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; and (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.

B. Bargainable Issues LC, 252. The duty to bargain collectively means the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreements if requested by either party but such duty does not compel any party to agree to a proposal or to make any concession. Manila Fashions v. NLRC. If petitioner is a financially distressed company then it should have applied for a wage exemption so that it could meet its labor costs without endangering its viability or its very existence upon which both management and labor depend for a living. 7 The Office of the Solicitor General emphasizes the point that parties to a CBA may not by themselves, set a wage lower than the minimum wage. To do so would render nugatory the purpose of a wage exemption, not to mention the possibility that employees may be unwittingly put in a position to accept a lower wage. Union of Filipro Employees-Drug v. Nestle. In the case at bar, it cannot be denied that the CBA that was about to expire at that time contained provisions respecting the Retirement Plan. As the latter benefit was already subject of the existing CBA, the members of UFE-DFA-KMU were only exercising their prerogative to bargain or renegotiate for the improvement of the terms of the Retirement Plan just like they would for all the other economic, as well as non-economic benefits previously enjoyed by them. Precisely, the purpose of collective bargaining is the acquisition or attainment of the best possible covenants or terms relating to economic and non-economic benefits granted by employers and due the employees. The Labor Code has actually imposed as a mutual obligation of both parties, this duty to bargain collectively. The duty to bargain collectively is categorically prescribed by Article 252 of the said code. 1. CBA Interpretation

Samahan ng Manggagawa sa Top Form Mfg v. NLRC. The CBA is the law between the contracting parties 10 — the collective bargaining representative and the employer-company. Compliance with a CBA is mandated by the expressed policy to give protection to labor. 11 In the same vein, CBA provisions should be "construed liberally rather than narrowly and technically, and the courts must place a practical and realistic construction upon it, giving due consideration to the context in which it is negotiated and purpose which it is intended to serve." 12 This is founded on the dictum that a CBA is not an ordinary contract but one impressed with public interest. 13 It goes without saying, however, that only provisions embodied in the CBA should be so interpreted and complied with. Where a proposal raised by a contracting party does not find print in the CBA, 14 it is not a part thereof and the proponent has no claim whatsoever to its implementation.

C. Bargaining Procedure Book V, Rule XVI.

Section 1. Policy. - It is the policy of the State to promote and emphasize the primacy of free and responsible exercise of the right to self-organization and collective bargaining, either through single enterprise level negotiations or through the creation of a mechanism by which different employers and recognized or certified labor unions in their establishments bargain collectively. Section 2. Disclosure of information. - In collective bargaining, the parties shall, at the request of either of them, make available such up-to-date financial information on the economic situation of the undertaking, which is normally submitted to relevant government agencies, as is material and necessary for meaningful negotiations. Where the disclosure of some of this information could be prejudicial to the undertaking, its communication may be made condition upon a commitment that it would be regarded as confidential to the extent required. The information to be made available may be agreed upon between the parties to collective bargaining. Section 3. When single enterprise bargaining available. - Any voluntarily recognized or certified labor union may demand negotiations with its employer for terms and conditions of work covering employees in the bargaining unit concerned. Section 4. Procedure in single enterprise bargaining. - A recognized or certified labor union that desires to negotiate with its employer shall submit such intention in writing to the employer, together with its proposals for collective bargaining.

The recognized or certified labor union and its employer may adopt such procedures and processes they may deem appropriate and necessary for the early termination of their negotiations. They shall name their respective representatives to the negotiation, schedule the number and frequency of meetings, and agree on wages, benefits and other terms and conditions of work for all employees covered in the bargaining unit. Section 5. When multi-employer bargaining available. - A legitimate labor union(s) and employers may agree in writing to come together for the purpose of collective bargaining, provided:

(a) only legitimate labor unions who are incumbent exclusive bargaining agents may participate and negotiate in multi-employer bargaining;

(b) only employers with counterpart legitimate labor unions who are incumbent bargaining agents may participate and negotiate in multi-employer bargaining; and

(c) only those legitimate labor unions who pertain to employer units who consent to multi-employer bargaining may participate in multi-employer bargaining.

Section 6. Procedure in multi-employer bargaining. - Multi-employer bargaining may be initiated by the labor unions or by the employers. (a) Legitimate labor unions who desire to negotiate with their employers collectively shall execute a written agreement among

themselves, which shall contain the following: 1) the names of the labor unions who desire to avail of multi-employer bargaining;

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Labor II Finals Reviewer Prof. P. Daway 2nd semester, AY ’10-‘11

Janz Hanna Ria N. Serrano

2) each labor union in the employer unit; 3) the fact that each of the labor unions are the incumbent exclusive bargaining agents for their respective employer units; 4) the duration of the collective bargaining agreements, if any, entered into by each labor union with their respective employers.

Legitimate labor unions who are members of the same registered federation, national, or industry union are exempt from execution of this written agreement.

(b) The legitimate labor unions who desire to bargain with multi-employers shall send a written notice to this effect to each employer concerned. The written agreement stated in the preceding paragraph, or the certificates of registration of the federation, national, or industry union, shall accompany said notice.

Employers who agree to group themselves or use their existing associations to engage in multi-employer bargaining shall send a written notice to each of their counterpart legitimate labor unions indicating their desire to engage in multi-employer bargaining. Said notice shall indicate the following:

1) the names of the employers who desire to avail of multi-employer bargaining; 2) their corresponding legitimate labor organizations; 3) the fact that each corresponding legitimate union is any incumbent exclusive bargaining agent; 4) the duration of the current collective bargaining agreement, if any, entered into by each employer with the counterpart

legitimate labor union. (c) Each employer or concerned labor union shall express its willingness or refusal to participate in multi-employer bargaining in

writing, addressed to its corresponding exclusive bargaining agent or employer. Negotiations may commence only with regard to respective employers and labor unions who consent to participate in multi-employer bargaining;

(d) During the course of negotiations, consenting employers and the corresponding legitimate labor unions shall discuss and agree on the following:

1) the manner by which negotiations shall proceed; 2) the scope and coverage of the negotiations and the agreement; and 3) where appropriate, the effect of the negotiations on current agreements or conditions of employment among the

parties.

Section 7. Posting and registration of collective bargaining agreement. - Two (2) signed copies of collective bargaining agreement reached through multi-employer bargaining shall be posted for at least five ( 5) days in two conspicuous areas in each workplace of the employer units concerned. Said collective bargaining agreement shall affect only those employees in the bargaining units who have ratified it.

The same collective bargaining agreement shall be registered with the Department in accordance with the following Rule.

1. Private Procedure LC, 251. Duty to bargain collectively in the absence of collective bargaining agreements. – In the absence of an agreement or other voluntary arrangement providing for a more expeditious manner of collective bargaining, it shall be the duty of employer and the representatives of the employees to bargain collectively in accordance with the provisions of this Code.

2. Labor Code Procedure LC, 250. Procedure in collective bargaining. – The following procedures shall be observed in collective bargaining:

(a) When a party desires to negotiate an agreement, it shall serve a written notice upon the other party with a statement of its proposals. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice;

(b) Should differences arise on the basis of such notice and reply, either party may request for a conference which shall begin not later than ten (10) calendar days from the date of request.

(c) If the dispute is not settled, the Board shall intervene upon request of either or both parties or at its own initiative and immediately call the parties to conciliation meetings. The Board shall have the power to issue subpoenas requiring the attendance of the parties to such meetings. It shall be the duty of the parties to participate fully and promptly in the conciliation meetings the Board may call;

(d) During the conciliation proceedings in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes; and

(e) The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to a voluntary arbitrator. (As amended by Section 20, Republic Act No. 6715, March 21, 1989).

LC, 251, supra LC, 233. Privileged communication. - Information and statements made at conciliation proceedings shall be treated as privileged communication and shall not be used as evidence in the Commission. Conciliators and similar officials shall not testify in any court or body regarding any matters taken up at conciliation proceedings conducted by them. LC, 260. Grievance machinery and voluntary arbitration. - The parties to a Collective Bargaining Agreement shall include therein provisions that will ensure the mutual observance of its terms and conditions. They shall establish a machinery for the adjustment and resolution of grievances arising from the interpretation or implementation of their Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies.

All grievances submitted to the grievance machinery which are not settled within seven (7) calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the Collective Bargaining Agreement.

For this purpose, parties to a Collective Bargaining Agreement shall name and designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators, or include in the agreement a procedure for the selection of such Voluntary Arbitrator or panel of Voluntary Arbitrators, preferably from the listing of qualified Voluntary Arbitrators duly accredited by the Board. In case the parties fail to select a Voluntary Arbitrator or panel of Voluntary Arbitrators, the Board shall designate the Voluntary Arbitrator or panel of Voluntary Arbitrators, as may be necessary, pursuant to the selection procedure agreed upon in the Collective Bargaining Agreement, which shall act with the same force and effect as if the Arbitrator or panel of Arbitrators has been selected by the parties as described above. Caltex Refinery Employees Assoc v. Brillantes. The disagreement between petitioner and private respondent on the union security clause should have been definitively resolved by public respondent. The labor secretary should take cognizance of an issue which is not merely incidental to but essentially involved in the labor dispute itself, or which is otherwise submitted to him for resolution. 33 In this case, the parties have submitted the issue of the union security clause for public respondent's disposition. But the secretary of labor has given no valid reason for avoiding the said issue; he merely points out that this issue is a procedural matter. Such vacillation clearly sidesteps the nature of the union security clause as one intended to strengthen the contracting union and to protect it from the fickleness or perfidy of its own members. Without such safeguard, group solidarity becomes uncertain; the union becomes gradually weakened and increasingly vulnerable to company machinations. In this security clause lies the strength of the union during the enforcement of the collective bargaining agreement. It is this clause that provides labor with substantial power in collective bargaining. The secretary of labor assumed jurisdiction over this labor dispute in an industry indispensable to national interest, precisely to settle once and for all the disputes over which he has jurisdiction at his level. In not performing his duty, the secretary of labor committed a grave abuse of discretion.

3. Conciliation/preventive mediation LC, 233, supra. LC, 250(c). If the dispute is not settled, the Board shall intervene upon request of either or both parties or at its own initiative and immediately call the parties to conciliation meetings. The Board shall have the power to issue subpoenas requiring the attendance of the parties to such meetings. It shall be the duty of the parties to participate fully and promptly in the conciliation meetings the Board may call. LC, 250(d). During the conciliation proceedings in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes

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Labor II Finals Reviewer Prof. P. Daway 2nd semester, AY ’10-‘11

Janz Hanna Ria N. Serrano

LC, 250(e). The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to a voluntary arbitrator. E.O.251, Sec. 4. National Conciliation and Mediation Board. A National Conciliation and Mediation Board, herein referred to as the "Board", is hereby created and which shall absorb the conciliation mediation and voluntary arbitration functions of the Bureau of Labor of Relations in accordance with Section 29 (c) hereof. The Board shall be composed of an Administrator and two (2) Deputy Administrators. It shall be an attached agency under the administrative supervision of the Secretary of Labor and Employment.

The Administrators and the Deputy Administrators shall be appointed by the President upon recommendation of the Secretary of Labor and Employment. There shall be as many Conciliators-Mediators as the needs of the public service require, who shall have at least three (3) years of experience in handling labor relations and who shall be appointed by the Secretary.

The Board shall have its main office in Metropolitan Manila and its Administrators shall exercise supervision over Conciliators-Mediators and all its personnel. It shall establish as many branches as there are administrative regions in the country, with a many Conciliator-mediators as shall be necessary for its effective operation. Each branch of the Board shall be headed by an Executive Conciliator-Mediator.

The Board shall have the following functions: (a) Formulate policies, programs, standards, procedures, manuals of operation and guidelines pertaining to effective mediation

and conciliation of labor disputes; (b) Perform preventive mediation and conciliation functions; (c) Coordinate and maintain linkages with other sectors of institutions, and other government authorities concerned with matters

relative to the prevention and settlement of labor disputes; (d) formulate policies, plans, programs, standards, procedures, manuals of operation and guidelines pertaining to the promotion

of cooperative and non-adversarial schemes, grievance handling, voluntary arbitration and other voluntary modes of dispute settlements;

(e) Administer the voluntary arbitration program; maintain/update a list of voluntary arbitrations; compile arbitration awards and decisions;

(f) Provide counselling and preventive mediation assistance particularly in the administration of collective agreement; awards and decisions;

(g) Monitor and exercise technical supervision over the Board programs being implemented in the regional offices; and (h) Perform such other functions as may be provided by law or assigned by the Secretary.

A Tripartite Voluntary Arbitration Advisory Council is hereby created and attached to the National Conciliation and Mediation Board. The Tripartite Voluntary Arbitration Advisory Council shall advise the National Conciliation Board on matters pertaining to the promotion of voluntary arbitration as the preferred mode of dispute settlement.

The Tripartite Voluntary Arbitration Advisory Council shall consist of the Administrator of the National Conciliation and Mediation Board as Chairman, one other member from the government, two members representing labor, and two other members representing management. The members shall be appointed by the President to serve for a term of three (3) years. The Chairman and Members thereof shall serve without compensation. Book V, Rule XXII, Sec. 1. Conciliation of labor-management disputes. - The board may, upon request of either of both parties or upon its own initiative, provide conciliation-mediation services to labor disputes other than notices of strikes or lockouts. Conciliation cases which are not subjects of notices of strike or lockout shall be docketed as preventive mediation cases. Book V, Rule XXII, Sec. 9. Action on Notice. - Upon receipt of the notice, 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 agreement of the parties, treat a notice 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 their duty to bargain collectively in good faith and to participate fully and promptly in the conciliation meetings called by the regional branch of the Board.

A notice, upon agreement of the parties, may be referred to alternative modes of dispute resolution, including voluntary arbitration. 4. Duty to Bargain

LC, 250, supra. LC, 251, supra. LC, 252, supra. LC, 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. 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. LC, 242(c). A legitimate labor organization shall have the right To be furnished by the employer, upon written request, with its annual audited financial statements, including the balance sheet and the profit and loss statement, within thirty (30) calendar days from the date of receipt of the request, after the union has been duly recognized by the employer or certified as the sole and exclusive bargaining representative of the employees in the bargaining unit, or within sixty (60) calendar days before the expiration of the existing collective bargaining agreement, or during the collective bargaining negotiation LC, 239(f). [old rules] LC, 239-A. Voluntary cancellation of registration. - The registration of a legitimate labor organization may be cancelled by the organization itself: Provided, That at least two-thirds of its general membership votes, in a meeting duly called for that purpose to dissolve the organization: Provided, further, That an application to cancel registration is thereafter submitted by the board of the organization, attested to by the president thereof. (Inserted as a new provision by Section 6, Republic Act No. 9481 which lapsed into law on May 25, 2007 and became effective on June 14, 2007). LC, 248(g). It shall be unlawful for an employer to commit any of the following unfair labor practice: To violate the duty to bargain collectively as prescribed by this Code LC, 249(c). It shall be unfair labor practice for a labor organization, its officers, agents or representatives: To violate the duty, or refuse to bargain collectively with the employer, provided it is the representative of the employees PI Mfg. Inc v. PI Mfg Supervisors’ and Foremen Assoc. At this juncture, it must be stressed that a CBA constitutes the law between the parties when freely and voluntarily entered into.13 Here, it has not been shown that respondent PIMASUFA was coerced or forced by petitioner to sign the 1987 CBA. All of its thirteen (13) officers signed the CBA with the assistance of respondent NLU. They signed it fully aware of the passage of R.A. No. 6640. The duty to bargain requires that the parties deal with each other with open and fair minds. A sincere endeavor to overcome obstacles and difficulties that may arise, so that employer-employee relations may be stabilized and industrial strife eliminated, must be apparent.14 Respondents cannot invoke the beneficial provisions of the 1987 CBA but disregard the concessions it voluntary extended to petitioner. The goal of collective bargaining is the making of agreements that will stabilize business conditions and fix fair standards of working conditions.15 Definitely, respondents’ posture contravenes this goal. Faculty Assoc of MAPUA v. CA. Considering the submissions of the parties, in the light of the existing CBA, we find that the new point range system proposed by MIT is an unauthorized modification of Annex "C" of the 2001 CBA. It is made up of a faculty classification that is substantially different from the one originally incorporated in the current CBA between the parties. Thus, the proposed system contravenes the existing provisions of the CBA, hence, violative of the law between the parties. || Until a new CBA is executed by and between the parties, they are duty-bound to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement. The law does not provide for any exception nor qualification on which economic provisions of the existing agreement are to retain its force and effect. Therefore, it must be understood as encompassing all the terms and conditions in the said agreement. | The CBA during its lifetime binds all the parties. The provisions of the CBA must be respected since its terms and conditions "constitute the law between the parties." Those who

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Labor II Finals Reviewer Prof. P. Daway 2nd semester, AY ’10-‘11

Janz Hanna Ria N. Serrano

are entitled to its benefits can invoke its provisions. In the event that an obligation therein imposed is not fulfilled, the aggrieved party has the right to go to court and ask redress. The CBA is the norm of conduct between petitioner and private respondent and compliance therewith is mandated by the express policy of the law.

D. The Collective Bargaining Agreement 1. Definition/Contents

Book V, Rule I, Sec 1(j). “Collective Bargaining Agreement” or “CBA” refers to the contract between a legitimate labor union and the employer concerning wages, hours of work, and all other terms and conditions of employment in a bargaining unit. LC, 260, supra. Effect of Sub-standard Contract LC, 239(f). Lepanto Ceramics, Inc. v. LCEA. A CBA refers to a negotiated contract between a legitimate labor organization and the employer, concerning wages, hours of work and all other terms and conditions of employment in a bargaining unit. As in all other contracts, the parties to a CBA may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided these are not contrary to law, morals, good customs, public order or public policy.23 || It is a familiar and fundamental doctrine in labor law that the CBA is the law between the parties and they are obliged to comply with its provisions.24 This principle stands strong and true in the case at bar PAL v. PALEA. It is a well-settled doctrine that the benefits of a CBA extend to the laborers and employees in the collective bargaining unit, including those who do not belong to the chosen bargaining labor organization.32 Otherwise, it would be a clear case of discrimination. || Hence, to be entitled to the benefits under the CBA, the employees must be members of the bargaining unit, but not necessarily of the labor organization designated as the bargaining agent. A "bargaining unit" has been defined as a group of employees of a given employer, comprised of all or less than all of the entire body of employees, which the collective interest of all the employees, consistent with equity to the employer, indicates to be the best suited to serve the reciprocal rights and duties of the parties under the collective bargaining provisions of the law.33 At this point, the allegation of petitioner PAL that the non-regular employees do not belong to the collective bargaining unit and are thus not covered by the CBA is unjustified and unsubstantiated. It is apparent to us that petitioner PAL excludes certain employees from the benefits of the CBA only because they have not yet achieved regular status by the cut-off date, 30 April 1988. There is no showing that the non-regular status of the concerned employees by said cut-off date sufficiently distinguishes their interests from those of the regular employees so as to exclude them from the collective bargaining unit and the benefits of the CBA.

2. Registration LC, 231. Registry of unions and file of collective bargaining agreements. - The Bureau shall keep a registry of legitimate labor organizations. The Bureau shall also maintain a file of all collective bargaining agreements and other related agreements and records of settlement of labor disputes and copies of orders and decisions of voluntary arbitrators. The file shall be open and accessible to interested parties under conditions prescribed by the Secretary of Labor and Employment, provided that no specific information submitted in confidence shall be disclosed unless authorized by the Secretary, or when it is at issue in any judicial litigation, or when public interest or national security so requires.

Within thirty (30) days from the execution of a Collective Bargaining Agreement, the parties shall submit copies of the same directly to the Bureau or the Regional Offices of the Department of Labor and Employment for registration, accompanied with verified proofs of its posting in two conspicuous places in the place of work and ratification by the majority of all the workers in the bargaining unit. The Bureau or Regional Offices shall act upon the application for registration of such Collective Bargaining Agreement within five (5) calendar days from receipt thereof. The Regional Offices shall furnish the Bureau with a copy of the Collective Bargaining Agreement within five (5) days from its submission.

The Bureau or Regional Office shall assess the employer for every Collective Bargaining Agreement a registration fee of not less than one thousand pesos (P1,000.00) or in any other amount as may be deemed appropriate and necessary by the Secretary of Labor and Employment for the effective and efficient administration of the Voluntary Arbitration Program. Any amount collected under this provision shall accrue to the Special Voluntary Arbitration Fund.

The Bureau shall also maintain a file and shall undertake or assist in the publication of all final decisions, orders and awards of the Secretary of Labor and Employment, Regional Directors and the Commission. (As amended by Section 15, Republic Act No. 6715, March 21, 1989). Book V, Rule XVII, Sec. 1. Where to file. - Within thirty (30) days from execution of a collective bargaining agreement, the parties thereto shall submit two (2) duly signed copies of the agreement to the Regional Office which issued the certificate of registration/certificate of creation of chartered local of the labor union-party to the agreement. Where the certificate of creation of the concerned chartered local was issued by the Bureau, the agreement shall be filed with the Regional Office which has jurisdiction over the place where it principally operates.

Multi-employer collective bargaining agreements shall be filed with the Bureau. Book V, Rule XVII, Sec. 2. Requirements for registration. - The application for CBA registration shall be accompanied by the original and two (2) duplicate copies of the following documents which must be certified under oath by the representative(s) of the employer(s) and labor union(s) concerned

(a) the collective bargaining agreement;

(b) a statement that the collective bargaining agreement was posted in at least two (2) conspicuous places in the establishment or establishments concerned for at least five (5) days before its ratification; and

(c) a statement that the collective bargaining agreement was ratified by the majority of the employees in the bargaining unit of the employer or employers concerned.

No other document shall be required in the registration of collective bargaining agreements. Book V, Rule XVII, Sec. 3. Payment of registration fee. - The certificate of registration of collective bargaining agreement shall be issued by the Regional Office upon payment of the prescribed registration fee.

3. Beneficiaries LC, 255. Exclusive bargaining representation and workers’ participation in policy and decision-making. – 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.

Any provision of law to the contrary notwithstanding, workers shall have the right, subject to such rules and regulations as the Secretary of Labor and Employment may promulgate, to participate in policy and decision-making processes of the establishment where they are employed insofar as said processes will directly affect their rights, benefits and welfare. For this purpose, workers and employers may form labor-management councils: Provided, That the representatives of the workers in such labor-management councils shall be elected by at least the majority of all employees in said establishment. (As amended by Section 22, Republic Act No. 6715, March 21, 1989). Mactan Workers Union v. Aboitiz. The terms and conditions of a collective bargaining contract constitute the law between the parties. Those who are entitled to its benefits can invoke its provisions. In the event that an obligation therein imposed is not fulfilled, the aggrieved party has the right to go to court for redress. 6 Nor does it suffice as a defense that the claim is made on behalf of non-members of intervenor Associated Labor Union, for it is a well-settled doctrine that the benefits of a collective bargaining agreement extend to the laborers and employees in the collective bargaining unit, including those who do not belong to the chosen bargaining labor organization

4. Minutes of Negotiations Samahan ng Manggagawa sa Top Form Mfg v. NLRC. It cites as basis therefor, the aforequoted portion of the Minutes of the collective bargaining negotiation on February 27, 1990 regarding wages, arguing additionally that said Minutes forms part of the entire agreement between the parties. || The basic premise of this argument is definitely untenable. To start with, if there was indeed a promise or undertaking on the part of private respondent to obligate itself to grant an automatic across-the-board wage increase, petitioner union should have requested or demanded that such "promise or undertaking" be incorporated in the CBA.

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Labor II Finals Reviewer Prof. P. Daway 2nd semester, AY ’10-‘11

Janz Hanna Ria N. Serrano

5. Interpretation, Administration and Enforcement Norkis Free & Independent WU v. Norkis Trading Co. The CBA is no ordinary contract, but one impressed with public interest.20 Therefore, it is subject to special orders on wages,21 such as those issued by the RTWPB. Capitol Wireless v. Bate22 is squarely in point. The union in that case claimed that all government-mandated increases in salaries should be granted to all employees across-the-board without any qualification whatsoever, pursuant to the CBA provision that any government-mandated wage increases should be over and above the benefits granted in the CBA. The Court denied such claim and held that the provisions of the Agreement should be read in harmony with the Wage Orders. Applying that ruling to the present case, we hold that the implementation of a wage increase for respondent’s employees should be controlled by the stipulations of Wage Order No. ROVII-06. a. Nature

Pantranco North Express v. NLRC. . A CBA incorporates the agreement reached after negotiations between employer and bargaining agent with respect to terms and conditions of employment. A CBA is not an ordinary contract. "(A)s a labor contract within the contemplation of Article 1700 of the Civil Code of the Philippines which governs the relations between labor and capital, (it) is not merely contractual in nature but impressed with public interest, thus it must yield to the common good. As such, it must be construed liberally rather than narrowly and technically, and the courts must place a practical and realistic construction upon it, giving due consideration to the context in which it is negotiated and purpose which it is intended to serve. || Being a product of negotiation, the CBA between the petitioner and the union intended the provision on compulsory retirement to be beneficial to the employees-union members, including herein private respondent. When private respondent ratified the CBA with the union, he not only agreed to the CBA but also agreed to conform to and abide by its provisions. DOLE Phils v. Pawis ng Makabayang Obrero. The exercise of management prerogative is not unlimited. It is subject to the limitations found in law, a collective bargaining agreement or the general principles of fair play and justice.9 This situation constitutes one of the limitations. The CBA is the norm of conduct between petitioner and private respondent and compliance therewith is mandated by the express policy of the law.

b. Grievance Procedure LC, 255, supra. LC, 260, supra. USAEU-FFW v. CA. As we see it, the issue as to the economic benefits, which included the issue on the formula in computing the TIP share of the employees, is one that arises from the interpretation or implementation of the CBA. To be sure, the parties’ CBA provides for a grievance machinery to resolve any "complaint or dissatisfaction arising from the interpretation or implementation of the CBA and those arising from the interpretation or enforcement of company personnel policies."19 Moreover, the same CBA provides that should the grievance machinery fail to resolve the grievance or dispute, the same shall be "referred to a Voluntary Arbitrator for arbitration and final resolution."20 However, through no fault of the University these processes were not exhausted. It must be recalled that while undergoing preventive mediation proceedings before the NCMB, the Union declared a bargaining deadlock, filed a notice of strike and thereafter, went on strike. The University filed a Motion to Strike Out Notice of Strike and to Refer the Dispute to Voluntary Arbitration21 but the motion was not acted upon by the NCMB. As borne by the records, the University has been consistent in its position that the Union must exhaust the grievance machinery provisions of the CBA which ends in voluntary arbitration. Atlas Farm, Inc. v. NLRC. Pursuant to Article 26021 of the Labor Code, the parties to a CBA shall name or designate their respective representatives to the grievance machinery and if the grievance is unsettled in that level, it shall automatically be referred to the voluntary arbitrators designated in advance by the parties to a CBA. Consequently only disputes involving the union and the company shall be referred to the grievance machinery or voluntary arbitrators. In these termination cases of private respondents, the union had no participation, it having failed to object to the dismissal of the employees concerned by the petitioner. It is obvious that arbitration without the union’s active participation on behalf of the dismissed employees would be pointless, or even prejudicial to their cause.

c. Contract Infirmity ALU v. Calleja. What the aforecited rule [A254] prohibits is the modification and alteration of the present collective bargaining agreement during its lifetime. In the present case, the alterations and modifications were to take effect only on September 1, 1987, i.e., after the expiration of the old agreement. It must be noted that the new agreement did not suspend the old one. Neither did it terminate nor modify the same. Petitioner therefore did not commit any violation of Article 254 of the Labor Code, contrary to the allegations of the Solicitor General.

d. Contract Ambiguity Holy Cross of Davao College v. Holy Cross Faculty Union-KAMAP. To begin with, any doubt or ambiguity in the contract (CBA) between management and the union members should be resolved in favor of the latter. This is pursuant to Article 1702 of the Civil Code which provides: "(I)n case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer."

e. Contract Duration and Renewal LC, 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. 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. LC, 253-A. Terms of a collective bargaining agreement. – Any Collective Bargaining Agreement that the parties may enter into shall, insofar as the representation aspect is concerned, be for a term of five (5) years. No petition questioning the majority status of the incumbent bargaining agent shall be entertained and no certification election shall be conducted by the Department of Labor and Employment outside of the sixty-day period immediately before the date of expiry of such five-year term of the Collective Bargaining Agreement. All other provisions of the Collective Bargaining Agreement shall be renegotiated not later than three (3) years after its execution. Any agreement on such other provisions of the Collective Bargaining Agreement entered into within six (6) months from the date of expiry of the term of such other provisions as fixed in such Collective Bargaining Agreement, shall retroact to the day immediately following such date. If any such agreement is entered into beyond six months, the parties shall agree on the duration of retroactivity thereof. In case of a deadlock in the renegotiation of the Collective Bargaining Agreement, the parties may exercise their rights under this Code. (As amended by Section 21, Republic Act No. 6715, March 21, 1989). Book V, Rule XVII, Sec. 7. Term of representation status; contract bar rule. - The representation status of the incumbent exclusive bargaining agent which is a party to a duly registered collective bargaining agreement shall be for a term of five (5) years from the date of the effectivity of the collective bargaining agreement. No petition questioning the majority status of the incumbent exclusive bargaining agent or petition for certification election filed outside of the sixty-day period immediately preceding the expiry date of such five-year term shall be entertained by the Department.

The five-year representation status acquired by an incumbent bargaining agent either through single enterprise collective bargaining or multi-employer bargaining shall not be affected by a subsequent collective bargaining agreement executed between the same bargaining agent and the employer during the same five-year period. Book V, Rule XVII, Sec. 8. Re-negotiation of collective bargaining agreements. - All provisions of a collective bargaining agreement, except the representation status of the incumbent bargaining agent shall, as a matter of right, be renegotiated not later than three (3) years after its execution.

The re-negotiated collective bargaining agreement shall be ratified and registered with the same Regional Office where the preceding agreement was registered. The same requirements and procedure in the registration of collective bargaining agreements prescribed in the preceding rules shall be applied. Meralco v. Quisumbing. It is true that an arbitral award cannot per se be categorized as an agreement voluntarily entered into by the parties because it requires the interference and imposing power of the State thru the Secretary of Labor when he assumes jurisdiction. However, the arbitral award can be considered as an approximation of a collective bargaining agreement which would otherwise have

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Labor II Finals Reviewer Prof. P. Daway 2nd semester, AY ’10-‘11

Janz Hanna Ria N. Serrano

been entered into by the parties.19 The terms or periods set forth in Article 253-A pertains explicitly to a CBA. But there is nothing that would prevent its application by analogy to an arbitral award by the Secretary considering the absence of an applicable law. Rivera v. Espiritu & Laguesma. A CBA is “a contract executed upon request of either the employer or the exclusive bargaining representative incorporating the agreement reached after negotiations with respect to wages, hours of work and all other terms and conditions of employment, including proposals for adjusting any grievances or questions arising under such agreement.”[18] The primary purpose of a CBA is the stabilization of labor-management relations in order to create a climate of a sound and stable industrial peace.[19] In construing a CBA, the courts must be practical and realistic and give due consideration to the context in which it is negotiated and the purpose which it is intended to serve. || The assailed PAL-PALEA agreement was the result of voluntary collective bargaining negotiations undertaken in the light of the severe financial situation faced by the employer, with the peculiar and unique intention of not merely promoting industrial peace at PAL, but preventing the latter’s closure. We find no conflict between said agreement and Article 253-A of the Labor Code. Article 253-A has a two-fold purpose. One is to promote industrial stability and predictability. Inasmuch as the agreement sought to promote industrial peace at PAL during its rehabilitation, said agreement satisfies the first purpose of Article 253-A. The other is to assign specific timetables wherein negotiations become a matter of right and requirement. Nothing in Article 253-A, prohibits the parties from waiving or suspending the mandatory timetables and agreeing on the remedies to enforce the same. FVCLU-Phil. Transport & Gen. Workers Org v. Sama-samang Nagkakaisang Manggagawa sa FBC. While the parties may agree to extend the CBA’s original five-year term together with all other CBA provisions, any such amendment or term in excess of five years will not carry with it a change in the union’s exclusive collective bargaining status. By express provision of the above-quoted Article 253-A, the exclusive bargaining status cannot go beyond five years and the representation status is a legal matter not for the workplace parties to agree upon. In other words, despite an agreement for a CBA with a life of more than five years, either as an original provision or by amendment, the bargaining union’s exclusive bargaining status is effective only for five years and can be challenged within sixty (60) days prior to the expiration of the CBA’s first five years. 1. Automatic Renewal

PICOP Resources v. Taneca. Applying the same provision, it can be said that while it is incumbent for the employer to continue to recognize the majority status of the incumbent bargaining agent even after the expiration of the freedom period, they could only do so when no petition for certification election was filed. The reason is, with a pending petition for certification, any such agreement entered into by management with a labor organization is fraught with the risk that such a labor union may not be chosen thereafter as the collective bargaining representative.20 The provision for status quo is conditioned on the fact that no certification election was filed during the freedom period. Any other view would render nugatory the clear statutory policy to favor certification election as the means of ascertaining the true expression of the will of the workers as to which labor organization would represent them.21

f. CBA and 3rd party liability ALU v. NLRC. Thus, with this Court's pronouncement in Mobil Employees Association, et al. vs. NLRC, et al., supra., that what was effected was cessation of business and that the requirement of due notice was substantially complied with, the allegations that both MOPI and Caltex merely intended to evade the provisions of the CBA cannot be sustained. There was nothing irregular in the closure by MOPI of its business operation. Caltex may not be said to have stepped into the picture as an assignee of the CBA because of the very fact of such closure.

g. CBA and Disaffiliation Elisco-Elirol LU v. Noriel. Petitioner Elisco-Elirol Labor Union-NAFLU, consisting of employees and members of the local union was the principal party to the agreement. NAFLU as the "mother union" in participation in the execution of the bargaining agreement with respondent company acted merely as agent of the local union, which remained the basic unit of the association existing principally and freely to serve the common interest of all its members, including the freedom to disaffiliated when the circumstances so warranted as in the present case. || Corollarily, the "substitutionary" doctrine likewise fully supports petitioner's stand. Petitioner union to whom the employees owe their allegiance has from the beginning expressly avowed that it "does not intend to change and/or amend the provisions of the present collective bargaining agreement but only to be given the chance to enforce the same since there is a shift of allegiance in the majority of the employees at respondent company."

h. Jurisdiction – Pol. Inst. #56. 1. Jurisdiction of Voluntary Arbitrators

Metro Drug Distribution, Inc. v. Metro Drug Corp Employees Assoc. In the present case, it is undisputed that under the NLRC rules, no appeal may be taken from an order denying a motion to dismiss. The NLRC rule proscribing appeal from a denial of a motion to dismiss is similar to the general rule observed in civil procedure that an order denying a motion to dismiss is interlocutory and, hence, not appealable until final judgment or order is rendered. The remedy of the aggrieved party in case of denial of the motion to dismiss is to file an answer and interpose, as a defense or defenses, the ground or grounds relied upon in the motion to dismiss, proceed to trial and, in case of adverse judgment, to elevate the entire case by appeal in due course. In order to avail of the extraordinary writ of certiorari, it is incumbent upon petitioner to establish that the denial of the motion to dismiss was tainted with grave abuse of discretion.

2. RTC Jurisdiction Halaguena v. PAL. Jurisdiction of the court is determined on the basis of the material allegations of the complaint and the character of the relief prayed for irrespective of whether plaintiff is entitled to such relief. || In the case at bar, the allegations in the petition for declaratory relief plainly show that petitioners' cause of action is the annulment of Section 144, Part A of the PAL-FASAP CBA. From the petitioners' allegations and relief prayed for in its petition, it is clear that the issue raised is whether Section 144, Part A of the PAL-FASAP CBA is unlawful and unconstitutional. Here, the petitioners' primary relief in Civil Case No. 04-886 is the annulment of Section 144, Part A of the PAL-FASAP CBA, which allegedly discriminates against them for being female flight attendants. The subject of litigation is incapable of pecuniary estimation, exclusively cognizable by the RTC, pursuant to Section 19 (1) of Batas Pambansa Blg. 129, as amended. Being an ordinary civil action, the same is beyond the jurisdiction of labor tribunals.

VIII. Unfair Labor Practice A. In General

1. Definition and General Concept LC, 212(k). "Unfair labor practice" means any unfair labor practice as expressly defined by the Code LC, 246. Non-abridgment of right to self-organization. – It shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with employees and workers in their exercise of the right to self-organization. Such right shall include 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, subject to the provisions of Article 264 of this Code. (As amended by Batas Pambansa Bilang 70, May 1, 1980). LC, 247. Article 247. Concept of unfair labor practice and procedure for prosecution thereof. – Unfair labor practices violate the constitutional right of workers and employees to self-organization, are inimical to the legitimate interests of both labor and management, including their right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect, disrupt industrial peace and hinder the promotion of healthy and stable labor-management relations.

Consequently, 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.

Subject to the exercise by the President or by the Secretary of Labor and Employment of the powers vested in them by Articles 263 and 264 of this Code, 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. They shall resolve such cases within thirty (30) calendar days from the time they are submitted for decision.

Recovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code.

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Labor II Finals Reviewer Prof. P. Daway 2nd semester, AY ’10-‘11

Janz Hanna Ria N. Serrano

No criminal prosecution under this Title 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. (As amended by Batas Pambansa Bilang 70, May 1, 1980 and later further amended by Section 19, Republic Act No. 6715, March 21, 1989). ULP vis-à-vis Mgt. prerogative; Exception:

LC, 263(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. 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. The Secretary of Labor and Employment or the Commission may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same.

In line with the national concern for and the highest respect accorded to the right of patients to life and health, strikes and lockouts in hospitals, clinics and similar medical institutions shall, to every extent possible, be avoided, and all serious efforts, not only by labor and management but government as well, be exhausted to substantially minimize, if not prevent, their adverse effects on such life and health, through the exercise, however legitimate, by labor of its right to strike and by management to lockout. In labor disputes adversely affecting the continued operation of such hospitals, clinics or medical institutions, it shall be the duty of the striking union or locking-out employer to provide and maintain an effective skeletal workforce of medical and other health personnel, whose movement and services shall be unhampered and unrestricted, as are necessary to insure the proper and adequate protection of the life and health of its patients, most especially emergency cases, for the duration of the strike or lockout. In such cases, therefore, the Secretary of Labor and Employment may immediately assume, within twenty four (24) hours from knowledge of the occurrence of such a strike or lockout, jurisdiction over the same or certify it to the Commission for compulsory arbitration. For this purpose, the contending parties are strictly enjoined to comply with such orders, prohibitions and/or injunctions as are issued by the Secretary of Labor and Employment or the Commission, under pain of immediate disciplinary action, including dismissal or loss of employment status or payment by the locking-out employer of backwages, damages and other affirmative relief, even criminal prosecution against either or both of them.

The foregoing notwithstanding, the President of the Philippines shall not be 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.

Philcom EU v. Philcom. Unfair labor practice refers to acts that violate the workers' right to organize. The prohibited acts are related to the workers' right to self-organization and to the observance of a CBA. Without that element, the acts, no matter how unfair, are not unfair labor practices.23 The only exception is Article 248(f), which in any case is not one of the acts specified in PEU's charge of unfair labor practice. Galaxie Steel Workers Union v. NLRC. Unfair labor practice refers to acts that violate the workers’ right to organize,12 and are defined in Articles 248 and 261 of the Labor Code. The prohibited acts relate to the workers’ right to self-organization and to the observance of Collective Bargaining Agreement without which relation the acts, no matter how unfair, are not deemed unfair labor practices.

2. Requisites a. Employer-employee relationship

Sterling products v. SOL. The contract between the petitioners and the respondent Sol providing that the respondent Sol can be dismissed upon fifteen days' notice is therefore null and void. Inasmuch as respondent Sol was employed since the year 1952 and was in the employment of the petitioners from that time up to 1959, or a period of seven years, she is entitled to three and one-half months pay in accordance with the above quoted section 1 of the Act. American President Lines v. Clave. In view of Our finding that there is no employer-employee relationship between the petitioner and the members of the respondent agency, it should necessarily follow that the petitioner cannot be guilty of unfair labor practice as charged by the private respondents. Under Republic Act 875, Section 13, an unfair labor practice may be committed only within the context of an employer- employee relationship.

b. Act must be specifically defined in the law LC, 248. Unfair labor practices of employers. – It shall be unlawful for an employer to commit any of the following unfair labor practice:

(a) To interfere with, restrain or coerce employees in the exercise of their right to self-organization; (b) 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; (c) To contract out services or functions being performed by union members when such will interfere with, restrain or coerce

employees in the exercise of their rights to self-organization; (d) 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; (e) To discriminate in regard to wages, hours of work and other terms and conditions of employment in order to encourage or

discourage membership in any labor organization. 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. 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;

(f) To dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code;

(g) To violate the duty to bargain collectively as prescribed by this Code; (h) To pay negotiation or attorney’s fees to the union or its officers or agents as part of the settlement of any issue in collective

bargaining or any other dispute; or (i) To violate a collective bargaining agreement.

The provisions of the preceding paragraph notwithstanding, 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. (As amended by Batas Pambansa Bilang 130, August 21, 1981).

LC, 249. Unfair labor practices of labor organizations. - It shall be unfair labor practice for a labor organization, its officers, agents or representatives:

(a) To restrain or coerce employees in the exercise of their right to self-organization. However, a labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of membership;

(b) To cause or attempt to cause an employer to discriminate against an employee, including discrimination against an employee with respect to whom membership in such organization has been denied or to terminate an employee on any ground other than the usual terms and conditions under which membership or continuation of membership is made available to other members;

(c) To violate the duty, or refuse to bargain collectively with the employer, provided it is the representative of the employees;

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Labor II Finals Reviewer Prof. P. Daway 2nd semester, AY ’10-‘11

Janz Hanna Ria N. Serrano

(d) To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other things of value, in the nature of an exaction, for services which are not performed or not to be performed, including the demand for fee for union negotiations;

(e) To ask for or accept negotiation or attorney’s fees from employers as part of the settlement of any issue in collective bargaining or any other dispute; or

(f) To violate a collective bargaining agreement.

The provisions of the preceding paragraph notwithstanding, 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 shall be held criminally liable. (As amended by Batas Pambansa Bilang 130, August 21, 1981).

3. Burden of Proof Schering ELU v. Schering Plough Corp. . It is the union, therefore, who had the burden of proof to present substantial evidence to support its allegations (of unfair labor practices committed by management). || but in the case at bar the facts and the evidence did not establish even at least a rational basis why the union would wield a strike based on alleged unfair labor practices it did not even bother to substantiate during the conciliation proceedings. It is not enough that the union believed that the employer committed acts of unfair labor practice when the circumstances clearly negate even a prima facie showing to warrant such a belief.

4. Interpretation Caltex Filipino Mgr & Supervisors Assn v. CIR. To begin with, we view the return-to-work agreement of May 30, 1965 as in the nature of a partial compromise between the parties and, more important, a labor contract; consequently, in the latter aspect the same "must yield to the common good" (Art. 1700, Civil Code of the Philippines) and "(I)n case of doubt ... shall be construed in favor of the safety and decent living for the laborer" (Art. 1702, ibid). To our mind when the Company unqualifiedly bound itself in the return-to-work agreement that all employees will be taken back "with the same employee status prior to April 22, 1965," the Company thereby made manifest its intention and conformity not to proceed with Case No. 1484-MC, (c) relating the illegality of the strike incident.

5. Inter-relations of ULP Acts – LC, 248; 249. Republic Savings Bank v. CIR. Fernando, J. concurring. Collective bargaining whether in its formative stage preparatory to a labor contract or in the adjustment of a labor problem in accordance with the procedure set forth in an existing agreement presupposes the give-and-take of discussion. No party adopts, at least in its initial stages, a hard-line position, from which there can be no retreat. That was not the situation here. Respondents as labor leaders appeared adamantine in their attitude to terminate the services of the then president of the Republic Savings Bank. Nor did they mince words in describing his alleged misdeeds. They were quite certain that he had offended most grievously. They wanted him out. There was no room for discussion. || It is my view therefore that the dismissal amounted to "interference, restraint or coercion" as prohibited in the Industrial Peace Act. To repeat, this Section 4(a), with the exception of subsection (2), was taken from the Wagner Act. There is as stated by Bufford in his treatise for the Wagner Act "an overlap" as this particular subsection deals "with additional labor practice besides containing incidental provisions concerning related matters."2 As noted further by such commentator: "As expressed by the Senate Committee: 'The four succeeding unfair labor practices are designed not to impose limitations or restrictions upon the general guarantees of the first, but rather to spell out with particularity some of the practices that have been most prevalent and most troublesome.'"

B. Acts Violative of Right to Self-Organization 1. Interference, Restraint and Coercion

LC, 248(a). To interfere with, restrain or coerce employees in the exercise of their right to self-organization. LC, 255. Exclusive bargaining representation and workers’ participation in policy and decision-making. – 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.

Any provision of law to the contrary notwithstanding, workers shall have the right, subject to such rules and regulations as the Secretary of Labor and Employment may promulgate, to participate in policy and decision-making processes of the establishment where they are employed insofar as said processes will directly affect their rights, benefits and welfare. For this purpose, workers and employers may form labor-management councils: Provided, That the representatives of the workers in such labor-management councils shall be elected by at least the majority of all employees in said establishment. (As amended by Section 22, Republic Act No. 6715, March 21, 1989). LC, 277(g). The Ministry shall help promote and gradually develop, with the agreement of labor organizations and employers, labor-management cooperation programs at appropriate levels of the enterprise based on the shared responsibility and mutual respect in order to ensure industrial peace and improvement in productivity, working conditions and the quality of working life. (Incorporated by Batas Pambansa Bilang 130, August 21, 1981). LC, 277(h). In establishments where no legitimate labor organization exists, labor-management committees may be formed voluntarily by workers and employers for the purpose of promoting industrial peace. The Department of Labor and Employment shall endeavor to enlighten and educate the workers and employers on their rights and responsibilities through labor education with emphasis on the policy thrusts of this Code. (As amended by Section 33, Republic Act No. 6715, March 21, 1989). LC, 249(a). To restrain or coerce employees in the exercise of their right to self-organization. However, a labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of membership. Hacienda Fatima v. Nat’l Federation of Sugarcane Workers-Food. Indeed, from respondents' refusal to bargain, to their acts of economic inducements resulting in the promotion of those who withdrew from the union, the use of armed guards to prevent the organizers to come in, and the dismissal of union officials and members, one cannot but conclude that respondents did not want a union in their haciendaa clear interference in the right of the workers to self-organization. Gen. Milling Corp v. CA. There is no per se test of good faith in bargaining. Good faith or bad faith is an inference to be drawn from the facts. The effect of an employer’s or a union’s actions individually is not the test of good-faith bargaining, but the impact of all such occasions or actions, considered as a whole. a. Interrogation

Scoty’s Dep’t Store v. Micaller. As to the Board's finding of interference, there is abundant evidence of the questioning of employees as to membership in the union and of anti-union expressions by the company's superintendent made in such away as to discourage union membership. The rule with respect thereto is well settled and was stated by us recently in the case of NLRB vs. Norfolf-Southern Bus Corpn. 159 Fed 2d 518, where we said: "Questioning of employees concerning union membership and activities and disparaging remarks by supervisory employees made in such away as to hamper the exercise of free choice on the part of the employees, have been uniformly condemned as a violation of the Act.” Phil. Steam Navigation Co. v. Phil. Marine Officers Guild. The acts found by respondent court constituting the foregoing unfair labor practice are: (1) the interrogation and investigation by PHILSTEAM's supervisory officials of its captains, deck officers and engineers, to determine whether they had authorized PMOG to act as their bargaining agent; (2) the subjection of PMOG to vilification; and (3) the participation of PHILSTEAM's pier superintendent in soliciting membership for a competing union.

b. Speech, Espionage, Economic Coercion Insular Life Assurance Co., Ltd. EA v. Insular Life. The act of an employer in notifying absent employees individually during a strike following unproductive efforts at collective bargaining that the plant would be operated the next day and that their jobs were open for them should they want to come in has been held to be an unfair labor practice, as an active interference with the right of collective bargaining through dealing with the employees individually instead of through their collective bargaining representatives. | Indeed, it is an unfair labor practice for an employer operating under a collective bargaining agreement to negotiate or to attempt to negotiate with his employees individually in connection with changes in the agreement. And the basis of the prohibition regarding individual bargaining

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Labor II Finals Reviewer Prof. P. Daway 2nd semester, AY ’10-‘11

Janz Hanna Ria N. Serrano

with the strikers is that although the union is on strike, the employer is still under obligation to bargain with the union as the employees' bargaining representative

c. Concerted Activities Phil. Blooming Mills Employees Org. v. PBM. As heretofore stated, the primacy of human rights — freedom of expression, of peaceful assembly and of petition for redress of grievances — over property rights has been sustained. 18 Emphatic reiteration of this basic tenet as a coveted boon — at once the shield and armor of the dignity and worth of the human personality, the all-consuming ideal of our enlightened civilization — becomes Our duty, if freedom and social justice have any meaning at all for him who toils so that capital can produce economic goods that can generate happiness for all. To regard the demonstration against police officers, not against the employer, as evidence of bad faith in collective bargaining and hence a violation of the collective bargaining agreement and a cause for the dismissal from employment of the demonstrating employees, stretches unduly the compass of the collective bargaining agreement, is "a potent means of inhibiting speech" and therefore inflicts a moral as well as mortal wound on the constitutional guarantees of free expression, of peaceful assembly and of petition.

2. Non-Union Membership or Withdrawal from Membership as a condition of Employment (yellow-dog contract) LC, 248(b). 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 Visayan Stevedore Trans. Co. v. CIR. Referring to the unfair labor practice charge against the Company, we find, with the CIR, that said charge is substantially borne out by the evidence of record, it appearing that the workers not admitted to work beginning from November, 1955, were precisely those belonging to the UWFA and the Xaudaro, the Company Branch Manager, had told them point-blank that severance of their connection with the UWFA was the remedy, if they wanted to continue working with the Company.

3. Contracting out to Discourage Unionism LC, 248(c). To contract out services or functions being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their rights to self-organization

4. Company Domination of Union LC, 248(d). ) 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 LC, 212(i). "Company union" means any labor organization whose formation, function or administration has been assisted by any act defined as unfair labor practice by this Code PDC v. CIR. There is reason to believe that had the individual complainants agreed to resign from the ACEA and to transfer to the PEU, they would not have been separated from their work and would even have been made permanent employees. Thus, a Mrs. Concordia Araiza who was a casual employee of the petitioner corporation, upon her suspension for four (4) hours on representation of the ACEA, became a permanent employee after she handed her resignation from the ACEA Union personally to Jose E. Belmonte, the General Manager of the Progressive Development Corporation. || From the facts of record, it is clear that the individual complainants were dismissed because they refused to resign from the Araneta Coliseum Employees Association and to affiliate with the Progressive Employees Union which was being aided and abetted by the Progressive Development Corporation.

5. Discrimination to Encourage/Discourage Unionism LC, 248(e). To discriminate in regard to wages, hours of work and other terms and conditions of employment in order to encourage or discourage membership in any labor organization. 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. 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 LC, 249(b). To cause or attempt to cause an employer to discriminate against an employee, including discrimination against an employee with respect to whom membership in such organization has been denied or to terminate an employee on any ground other than the usual terms and conditions under which membership or continuation of membership is made available to other members a. Discriminatory discharge b. Valid discrimination: union clause – requisites

i. Closed shop ii. Union shop

iii. Maintenance of membership Alabang Country Club, Inc. v. NLRC. Another cause for termination is dismissal from employment due to the enforcement of the union security clause in the CBA. Here, Art. II of the CBA on Union security contains the provisions on the Union shop and maintenance of membership shop. There is union shop when all new regular employees are required to join the union within a certain period as a condition for their continued employment. There is maintenance of membership shop when employees who are union members as of the effective date of the agreement, or who thereafter become members, must maintain union membership as a condition for continued employment until they are promoted or transferred out of the bargaining unit or the agreement is terminated.18 Termination of employment by virtue of a union security clause embodied in a CBA is recognized and accepted in our jurisdiction.19 This practice strengthens the union and prevents disunity in the bargaining unit within the duration of the CBA. By preventing member disaffiliation with the threat of expulsion from the union and the consequent termination of employment, the authorized bargaining representative gains more numbers and strengthens its position as against other unions which may want to claim majority representation. || In terminating the employment of an employee by enforcing the union security clause, the employer needs only to determine and prove that: (1) the union security clause is applicable; (2) the union is requesting for the enforcement of the union security provision in the CBA; and (3) there is sufficient evidence to support the union's decision to expel the employee from the union. These requisites constitute just cause for terminating an employee based on the CBA's union security provision. || The language of Art. II of the CBA that the Union members must maintain their membership in good standing as a condition sine qua non for their continued employment with the Club is unequivocal. It is also clear that upon demand by the Union and after due process, the Club shall terminate the employment of a regular rank-and-file employee who may be found liable for a number of offenses, one of which is malversation of Union funds Gen. Milling Corp v. Casio. "Union security" is a generic term, which is applied to and comprehends "closed shop," "union shop," "maintenance of membership," or any other form of agreement which imposes upon employees the obligation to acquire or retain union membership as a condition affecting employment. There is union shop when all new regular employees are required to join the union within a certain period as a condition for their continued employment. There is maintenance of membership shop when employees, who are union members as of the effective date of the agreement, or who thereafter become members, must maintain union membership as a condition for continued employment until they are promoted or transferred out of the bargaining unit or the agreement is terminated. A closed shop, on the other hand, may be defined as an enterprise in which, by agreement between the employer and his employees or their representatives, no person may be employed in any or certain agreed departments of the enterprise unless he or she is, becomes, and, for the duration of the agreement, remains a member in good standing of a union entirely comprised of or of which the employees in interest are a part

c. Collection of agency fees LC, 248(e), supra. Del Pilar Academy v. DPAEU. When so stipulated in a collective bargaining agreement or authorized in writing by the employees concerned, the Labor Code and its Implementing Rules recognize it to be the duty of the employer to deduct the sum equivalent to the amount of union dues, as agency fees, from the employees' wages for direct remittance to the union. The system is referred to as check off.11 No requirement of written authorization from the non-union employees is necessary if the non-union employees accept the benefits resulting from the CBA

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Labor II Finals Reviewer Prof. P. Daway 2nd semester, AY ’10-‘11

Janz Hanna Ria N. Serrano

6. Retaliation Testimony Against Employer/Indirect discrimination LC, 248(f). To dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code Itogon-Suyoc Mines, Inc. v. Baldo. Considering that Baldo's case was pending before the grievance committee when he was asked by Gelladoga not to testify, and soon after he had testified adversely to the petitioner his case was dropped by the grievance committee, the conclusion is inescapable that the management of the petitioner herein had much to do with the dropping of Baldo's case, and because of the dropping of that case the petitioner never reinstated Baldo to his work. This conclusion is bolstered further by the fact that the petitioner herein had opposed the petition for certification election.

7. Illegal Exaction – Featherbedding LC, 249(d). To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other things of value, in the nature of an exaction, for services which are not performed or not to be performed, including the demand for fee for union negotiations

8. Management Prerogative and ULP SMCEU v. Bersamira. We recognize the proprietary right of SanMig to exercise an inherent management prerogative and its best business judgment to determine whether it should contract out the performance of some of its work to independent contractors. However, the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law (Section 3, Article XIII, 1987 Constitution) equally call for recognition and protection. Those contending interests must be placed in proper perspective and equilibrium.

C. Acts Violative of Right to Collective Bargaining 1. Violation of Duty to Bargain

LC, 248(g). To violate the duty to bargain collectively as prescribed by this Code LC, 249(c). To violate the duty, or refuse to bargain collectively with the employer, provided it is the representative of the employees LC, 250, supra. LC, 251, supra. LC, 252, supra. LC, 253, supra. Shell Oil Workers Union v. Shell. The answer must be in the affirmative. As correctly stressed in the brief for the petitioner, there was specific coverage concerning the security guard section in the collective bargaining contract. It is found not only in the body thereof but in the two appendices concerning the wage schedules as well as the premium pay and the night compensation to which the personnel in such section were entitled. 15 It was thus an assurance of security of tenure, at least, during the lifetime of the agreement. Nor is it a sufficient answer, as set forth in the decision of respondent Court, that while such a section would be abolished, the guards would not be unemployed as they would be transferred to another position with an increase in pay and with a transfer bonus. The Shell Company, in failing to manifest fealty to what was stipulated in an existing collective bargaining contract, was thus guilty of an unfair labor practice. Such a doctrine first found expression in Republic Savings Bank v. Court of Industrial Relations, 16 the opinion of the Court being penned by Justice Castro. Union of Filipro Employees-DFAI Unions-KMU v. Nestle. Obviously, the purpose of collective bargaining is the reaching of an agreement resulting in a contract binding on the parties; but the failure to reach an agreement after negotiations have continued for a reasonable period does not establish a lack of good faith. The statutes invite and contemplate a collective bargaining contract, but they do not compel one. The duty to bargain does not include the obligation to reach an agreement.

2. Negotiation or Attorney’s Fees LC, 248(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 LC, 249(e). To ask for or accept negotiation or attorney’s fees from employers as part of the settlement of any issue in collective bargaining or any other dispute

3. Gross Violation of CBA LC, 248(i). To violate a collective bargaining agreement LC, 249(f). To violate a collective bargaining agreement LC, 261. Jurisdiction of Voluntary Arbitrators or panel of Voluntary Arbitrators. - The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have original and exclusive jurisdiction to hear and decide all unresolved grievances arising from the interpretation or implementation of the Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies referred to in the immediately preceding article. 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.

The Commission, its Regional Offices and the Regional Directors of the Department of Labor and Employment shall not entertain disputes, grievances or matters under the exclusive and original jurisdiction of the Voluntary Arbitrator or panel of Voluntary Arbitrators and shall immediately dispose and refer the same to the Grievance Machinery or Voluntary Arbitration provided in the Collective Bargaining Agreement. Arellano Univ . Employees and Workers Union v. CA. To constitute ULP, however, violations of the CBA must be gross. Gross violation of the CBA, under Article 261 of the Labor Code, means flagrant and/or malicious refusal to comply with the economic provisions thereof. Evidently, the University cannot be faulted for ULP as it in good faith merely heeded the above-said request of Union members. SMFI v. SMCEU. As above-stated, the Union charges SMFI to have promoted less senior employees, thus bypassing others who were more senior and equally or more qualified. It may not be seriously disputed that this charge is a gross or flagrant violation of the seniority rule under the CBA, a ULP over which the Labor Arbiter has jurisdiction.

D. Motive, Conduct and Proof 1. Employer Motive and Proof

Phil. Metal Foundries v. CIR. The question of whether an employee was discharged because of his union activities is essentially a question of fact as to which the findings of the Court of Industrial Relations are conclusive and binding if supported by substantial evidence considering the record as a whole. || Although a man's motive, like his intent, is, in the words of Lord Justice Bowen "as much a fact as the state of his digestion", evidence of such fact may consist both direct testimony by one whose motive is in question and of inferences of probability drawn from the totality of other facts.

2. Totality of Evidence Royal Undergarment Corp. v. CIR. We have perused the record and found that the totality of evidence as found by respondent court supports the conclusion that respondent Cruz has been unjustly dismissed by reason of his union activities. The charge by petitioner against respondent Cruz for being under the influence of liquor on a certain date and for having threatened the lives of his co-employees is too flimsy to merit serious consideration. We have on record the undisputed facts that private respondent, as president of RUWU, was known for his aggressive and militant union activities; that he and his wife had been previously dismissed on the ground of active participation in union affairs; that they were reemployed only pursuant to the express terms of the Return-to-Work Agreement executed by petitioner corporation and RUWU when the latter won in the consent election; that respondent Cruz was dismissed again for the second time in the course of his campaign among RUWU members to join the nationwide strike of PTGWO in which RUWU is a member union.

E. Enforcement, Remedies and Sanctions 1. Parties Against whom ULP Committed

LC, 248, supra. LC, 249, supra. LC, 212(e). "Employer" includes any person acting in the interest of an employer, directly or indirectly. The term shall not include any labor organization or any of its officers or agents except when acting as employer

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Labor II Finals Reviewer Prof. P. Daway 2nd semester, AY ’10-‘11

Janz Hanna Ria N. Serrano

LC, 212(f). "Employee" includes any person in the employ of an employer. The term shall not be limited to the employees of a particular employer, unless the Code so explicitly states. It shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent and regular employment LC, 212(g). "Labor organization" means any union or association of employees which exists in whole or in part for the purpose of collective bargaining or of dealing with employers concerning terms and conditions of employment American President Lines v. Clave, supra.

2. Parties Liable for Acts a. Employer

LC, 248, last par. The provisions of the preceding paragraph notwithstanding, 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. (As amended by Batas Pambansa Bilang 130, August 21, 1981). LC, 288. Penalties. - Except as otherwise provided in this Code, or unless the acts complained of hinge on a question of interpretation or implementation of ambiguous provisions of an existing collective bargaining agreement, any violation of the provisions of this Code declared to be unlawful or penal in nature shall be punished with a fine of not less than One Thousand Pesos (P1,000.00) nor more than Ten Thousand Pesos (P10,000.00) or imprisonment of not less than three months nor more than three years, or both such fine and imprisonment at the discretion of the court.

In addition to such penalty, any alien found guilty shall be summarily deported upon completion of service of sentence. Any provision of law to the contrary notwithstanding, any criminal offense punished in this Code, shall be under the

concurrent jurisdiction of the Municipal or City Courts and the Courts of First Instance. (As amended by Section 3, Batas Pambansa Bilang 70). LC, 289. . Who are liable when committed by other than natural person. - If the offense is committed by a corporation, trust, firm, partnership, association or any other entity, the penalty shall be imposed upon the guilty officer or officers of such corporation, trust, firm, partnership, association or entity. LC, 290. Offenses. - Offenses penalized under this Code and the rules and regulations issued pursuant thereto shall prescribe in three (3) years.

All unfair labor practice arising from Book V shall be filed with the appropriate agency within one (1) year from accrual of such unfair labor practice; otherwise, they shall be forever barred.

b. Labor Organization LC, 249, last par. The provisions of the preceding paragraph notwithstanding, 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 shall be held criminally liable. (As amended by Batas Pambansa Bilang 130, August 21, 1981). LC, 288-290, supra. NLU v. CIR. Knowledge or awareness of what is going on refers to a mental and inner state of consciousness, cognizance, and information. Whether or not Mr. Ang Wo Long knew the labor problems of the firm he purchased, the existence of a union, the on-going — CBA negotiations, and the efforts of the employees he later dismissed to reach an agreement with management on the terms and conditions of their employment can be determined only from an admission of Mr. Ang himself or from the surrounding facts and circumstances indicative of knowledge. or awareness. || Under the facts are circumstances of this case, it is irrational if not specious to assume that Mr. Ang bought a business lock, stock, and barrel without inquiring into its labor-management situation and that his dismissal of all the union members without retaining a few experienced workers and their replacement with a completely new set of employees who were strangers to the company was anything other than an attempt to rid the firm of unwanted union activity.

3. Prosecution and Prescriptive Period a. Civil aspect

LC, 247, par. 2-4. Consequently, 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.

Subject to the exercise by the President or by the Secretary of Labor and Employment of the powers vested in them by Articles 263 and 264 of this Code, 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. They shall resolve such cases within thirty (30) calendar days from the time they are submitted for decision.

Recovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code. LC, 290, supra.

b. Criminal aspect LC, 247, last. Par. No criminal prosecution under this Title 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. (As amended by Batas Pambansa Bilang 70, May 1, 1980 and later further amended by Section 19, Republic Act No. 6715, March 21, 1989). LC, 290, supra.

4. Compromise CCLC E.G. Gochanco WU v. NLRC. We are convinced that the respondent company is indeed guilty of an unfair labor practice. It is no coincidence that at the time said respondent issued its suspension and termination orders, the petitioners were in the midst of a certification election preliminary to a labor management conference, purportedly, "to normalize employer-employee relations." 5 It was within the legal right of the petitioners to do so, 6 the exercise of which was their sole prerogative, 7 and in which management may not as a rule interfere. 8 In this connection, the respondent company deserves our strongest condemnation for ignoring the petitioners' request for permission for some time out to attend to the hearing of their petition before the med-arbiter. It is not only an act of arrogance, but a brazen interference as well with the employees right to self-organization, contrary to the prohibition of the Labor Code against unfair labor practices. || But as if to add insult to injury, the company suspended the petitioners on the ground of "abandonment of work" 10 on February 27, 1980, the date on which, apparently, the pre-election conference had been scheduled. (The petitioners sought permission on February 26, 1980 while the suspension order was issued on February 28, 1980.) What unfolds here is a clear effort by management to punish the petitioners for their union activities

5. Remedies and Sanctions a. Civil remedies

LC, 247 (2nd-3rd par.), supra LC, 223. Decisions, awards, or orders of the Labor Arbiter are final and executory unless appealed to the Commission by any or both parties within ten (10) calendar days from receipt of such decisions, awards, or orders. Such appeal may be entertained only on any of the following grounds: (a) If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter; (b) If the decision, order or award was secured through fraud or coercion, including graft and corruption; (c) If made purely on questions of law; and (d) If serious errors in the findings of facts are raised which would cause grave or irreparable damage or injury to the appellant.

In case of a judgment involving a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Commission in the amount equivalent to the monetary award in the judgment appealed from.

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Labor II Finals Reviewer Prof. P. Daway 2nd semester, AY ’10-‘11

Janz Hanna Ria N. Serrano

In any event, the decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar as the reinstatement aspect is concerned, shall immediately be executory, even pending appeal. The employee shall either be admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation or, at the option of the employer, merely reinstated in the payroll. The posting of a bond by the employer shall not stay the execution for reinstatement provided herein.

To discourage frivolous or dilatory appeals, the Commission or the Labor Arbiter shall impose reasonable penalty, including fines or censures, upon the erring parties.

In all cases, the appellant shall furnish a copy of the memorandum of appeal to the other party who shall file an answer not later than ten (10) calendar days from receipt thereof.

The Commission shall decide all cases within twenty (20) calendar days from receipt of the answer of the appellee. The decision of the Commission shall be final and executory after ten (10) calendar days from receipt thereof by the parties.

Any law enforcement agency may be deputized by the Secretary of Labor and Employment or the Commission in the enforcement of decisions, awards or orders. (As amended by Section 12, Republic Act No. 6715, March 21, 1989).

LC, 279. Security of tenure. - In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. (As amended by Section 34, Republic Act No. 6715, March 21, 1989).

b. Penal remedies LC, 247, last par. Supra. LC, 288-290, supra. Quadra v. CA. A dismissed employee is entitled to moral damages when the dismissal is attended by bad faith or fraud or constitutes an act oppressive to labor, or is done in a manner contrary to good morals, good customs or public policy. Exemplary damages may be awarded if the dismissal is effected in a wanton, oppressive or malevolent manner. || Unfair labor practices violate the constitutional rights of workers and employees to self-organization, are inimical to the legitimate interests of both labor and management, including their right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect; and disrupt industrial peace and hinder the promotion of healthy and stable labor-management relations. As the conscience of the government, it is the Court's sworn duty to ensure that none trifles with labor rights.

IX. Union Concerted Activities A. Basis of Right to Engage in Concerted Activities

1. Constitution Art. XIII, Sec. 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.

It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.

The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.

The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth. Bisig ng Manggagagawa sa Concrete Aggregates v. NLRC. The restoration of the right to strike is the most valuable gain of labor after the EDSA revolution. It is the employees' sole weapon which can effectively protect their basic rights especially in a society where the levers of powers are nearly monopolized by the propertied few or their franchisees. In recognition of its importance, our Constitution has accorded the rights to strike a distinct status while our laws have assured that its rightful exercise will not be negated by the issuance of unnecessary injunctions. The impugned Order of the public respondents in the case at bar infringes petitioners' right to strike and hence must be struck down.

2. Statutory LC, 211-A(a). It is the policy of the State (a) To promote and emphasize the primacy of free collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling labor or industrial disputes LC, 211-A(b). To promote free trade unionism as an instrument for the enhancement of democracy and the promotion of social justice and development LC, 211-A(c) To foster the free and voluntary organization of a strong and united labor movement LC, 263(a) It is the policy of the State to encourage free trade unionism and free collective bargaining. LC, 263(b) Workers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection. The right of legitimate labor organizations to strike and picket and of employers to lockout, consistent with the national interest, shall continue to be recognized and respected. However, no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intra-union disputes. Book V, Rule XXII.

Section 1. Conciliation of labor-management disputes. - The board may, upon request of either of both parties or upon its own initiative, provide conciliation-mediation services to labor disputes other than notices of strikes or lockouts. Conciliation cases which are not subjects of notices of strike or lockout shall be docketed as preventive mediation cases. Section 2. Privileged communication. - Information and statements given in confidence at conciliation proceedings shall be treated as privileged communications. Conciliators and similar officials shall not testify in any court or body regarding any matter taken up at conciliation proceedings conducted by them. Section 3. Issuance of subpoena. - The Board shall have the power to require the appearance of any parties at conciliation meetings. Section 4. Compromise Agreements. - Any compromise settlement, including those involving labor standard laws, voluntarily agreed upon by the parties with the assistance of the Board and its regional branches shall be final and binding upon the parties. The National Labor Relations Commission or any court shall not assume jurisdiction over issues involved therein except in case of non-compliance thereof or if there is prima facie evidence that the settlement was obtained through fraud, misrepresentation, or coercion. Upon motion of any interested party, the Labor Arbiter in the region where the agreement was reached may issue a writ of execution requiring a sheriff of the Commission or the courts to enforce the terms of the agreement. Section 5. Grounds for strike or lockout. - A strike or lockout may be declared in cases of bargaining deadlocks and unfair labor practices. Violations of collective bargaining agreements, except flagrant and/or malicious refusal to comply with its economic provisions, shall not be considered unfair labor practice and shall not be strikeable. No strike or lockout may be declared on grounds involving inter-union and intra-union disputes or without first having filed a notice of strike or lockout or without the necessary strike or lockout vote having been obtained and reported to the Board. Neither will a strike be declared after assumption of jurisdiction by the Secretary or after certification of submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds or the strike or lockout. (As amended by DO 40_A-03 [Italized word "or" added].)

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Labor II Finals Reviewer Prof. P. Daway 2nd semester, AY ’10-‘11

Janz Hanna Ria N. Serrano

Section 6. Who may declare a strike or lockout. - Any certified or duly recognized bargaining representative may declare a strike in cases of bargaining deadlocks and unfair labor practices. The employer may declare a lockout in the same cases. In the absence of a certified or duly recognized bargaining representative, any legitimate labor organization in the establishment may declare a strike but only on grounds of unfair labor practices. Section 7. Notice of strike or lockout. - In bargaining deadlocks, a notice of strike or lockout shall be filed with the regional branch of the Board at least thirty (30) days before the intended date thereof, a copy of said notice having been served on the other party concerned. In cases of unfair labor practice, the period of notice shall be fifteen (15) days. However, in case of unfair labor practice involving the dismissal from employment of any union officer duly elected in accordance with the union constitution and by-laws which may constitute union-busting where the existence of the union is threatened, the fifteen-day cooling-off period shall not apply and the union may take action immediately after the strike vote is conducted and the results thereof submitted to the appropriate regional branch of the Board. Section 8. Contents of notice. - The notice shall state, among others, the names and addresses of the employer and the union involved, the nature of the industry to which the employer belongs, the number of union members and of the workers in the bargaining unit, and such other relevant data as may facilitate the settlement of the dispute, such as a brief statement or enumeration of all pending labor disputes involving the same parties.

In cases of bargaining deadlocks, the notice shall, as far as practicable, further state the unresolved issues in the bargaining negotiations and be accompanied by the written proposals of the union, the counter-proposals of the employer and the proof of a request for conference to settle the differences. In cases of unfair labor practices, the notice shall, as far as practicable, state the acts complained of and the efforts taken to resolve the dispute amicably.

In case a notice does not conform with the requirements of this and the foregoing section/s, the regional branch of the Board shall inform the concerned party of such fact. Section 9. Action on Notice. - Upon receipt of the notice, 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 agreement of the parties, treat a notice 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 their duty to bargain collectively in good faith and to participate fully and promptly in the conciliation meetings called by the regional branch of the Board.

A notice, upon agreement of the parties, may be referred to alternative modes of dispute resolution, including voluntary arbitration. Section 10. Strike or lockout vote. - A decision to declare a strike must be approved by a majority of the total union membership in the bargaining unit concerned obtained by secret ballot in meetings or referenda called for the purpose. A decision to declare a lockout must be approved by a majority of the Board of Directors of the employer, corporation or association or the partners in a partnership obtained by a secret ballot in a meeting called for the purpose.

The regional branch of the Board may, at its own initiative or upon request of any affected party, supervise the conduct of the secret balloting. In every case, the union or the employer shall furnish the regional branch of the Board and the notice of meetings referred to in the preceding paragraph at least twenty-four (24) hours before such meetings as well as the results of the voting at least seven (7) days before the intended strike or lockout, subject to the cooling-off period provided in this Rule Section 11. Declaration of strike or lockout. - Should the dispute remain unsettled after the lapse of the requisite number of days from the filing of the notice of strike or lockout and of the results of the election required in the preceding section, the labor union may strike or the employer may lock out its workers. The regional branch of the Board shall continue mediating and conciliating. Section 12. Improved offer balloting. - In case of a strike, the regional branch of the Board shall, at its own initiative or upon the request of any affected party, conduct a referendum by secret balloting on the improved offer of the employer on or before the 30th day of strike. When at least a majority of the union members vote to accept the improved offer, the striking workers shall immediately return to work and the employer shall thereupon re-admit them upon the signing of the agreement.

In case of a lockout, the regional branch of the Board shall also conduct a referendum by secret balloting on the reduced offer of the union on or before the 30th day of the lockout. When at least a majority of the board of directors or trustees or the partners holding the controlling interest in the case of partnership vote to accept the reduced offer, the workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement. Section 13. Peaceful picketing. - Workers shall have the right to peaceful picketing. 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.

No person shall obstruct, impede or interfere with, by force, violence, coercion, threats or intimidation, any peaceful picketing by workers 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. No employer shall use or employ any person to commit such acts nor shall any person be employed for such purpose. Section 14. Injunctions. - No court or entity shall enjoin any picketing, strike or lockout, except as provided in Articles 218 and 263 of the Labor Code.

The Commission shall have the power to issue temporary restraining orders in such cases but only after due notice and hearing and in accordance with its rules. The reception of evidence for the application of a writ of injunction may be delegated by the Commission to any Labor Arbiter who shall submit his recommendations to the Commission for its consideration and resolution.

Any ex parte restraining order issued by the Commission, or its chairman or Vice-Chairman where the Commission is not in session and as prescribed by its rules, shall be valid for a period not exceeding twenty (20) days. Section 15. Criminal prosecution. - The regular courts shall have jurisdiction over any criminal action under Article 272 of the Labor Code. Ilaw at Buklod ng Manggagawa v. NLRC. Among the rights guaranteed to employees by the Labor Code is that of engaging in concerted activities in order to attain their legitimate objectives. Article 263 of the Labor Code, as amended, declares that in line with "the policy of the State to encourage free trade unionism and free collective bargaining, . . (w)orkers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection." A similar right to engage in concerted activities for mutual benefit and protection is tacitly and traditionally recognized in respect of employers.

The more common of these concerted activities as far as employees are concerned are: strikes — the temporary stoppage of work as a result of an industrial or labor dispute; picketing — the marching to and fro at the employer's premises, usually accompanied by the display of placards and other signs making known the facts involved in a labor dispute; and boycotts — the concerted refusal to patronize an employer's goods or services and to persuade others to a like refusal. On the other hand, the counterpart activity that management may licitly undertake is the lockout — the temporary refusal to furnish work on account of a labor dispute, In this connection, the same Article 263 provides that the "right of legitimate labor organizations to strike and picket and of employer to lockout, consistent with the national interest, shall continue to be recognized and respected." The legality of these activities is usually dependent on the legality of the purposes sought to be attained and the means employed therefor.

It goes without saying that these joint or coordinated activities may be forbidden or restricted by law or contract. In the particular instance of "distortions of the wage structure within an establishment" resulting from "the application of any prescribed wage increase by virtue of a law or wage order," Section 3 of Republic Act No. 6727 prescribes a specific, detailed and comprehensive procedure for the correction thereof, thereby implicitly excluding strikes or lockouts or other concerted activities as modes of settlement of the issue.

3. Limitations BLTBCo. V. NLRC. The contention of the petitioner that the private respondents abandoned their position is also not acceptable. An employee who forthwith takes steps to protest his lay-off cannot by any logic be said to have abandoned his work. | For abandonment to constitute a valid cause for termination of employment, there must be a deliberate, unjustified refusal of the employee to resume his employment. 4 This

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Labor II Finals Reviewer Prof. P. Daway 2nd semester, AY ’10-‘11

Janz Hanna Ria N. Serrano

refusal must be clearly established. As we stressed in a recent case, 5 mere absence is not sufficient; it must be accompanied by overt acts unerringly pointing to the fact that the employee simply does not want to work anymore. In the case at bar, the affidavit of Eduardo Azucena, BLTBCo operations manager, 6 besides being hearsay, lacks credibility in light of the subsequent acts of the private respondents in complaining about their separation. | A worker who joins a strike does so precisely to assert or improve the terms and conditions of his employment. If his purpose is to abandon his work, he would not go to the trouble of joining a strike.

B. Strike 1. Definition

LC, 212(o). "Strike" means any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. Book V, Rule I, Sec.1(uu). G&S Transport Corp. v. Tito Infante. Article 212 of the Labor Code defines strike as any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. A valid strike therefore presupposes the existence of a labor dispute. The strike undertaken by respondents took the form of a sit-down strike, or more aptly termed as a sympathetic strike, where the striking employees have no demands or grievances of their own, but they strike for the purpose of directly or indirectly aiding others, without direct relation to the advancement of the interest of the strikers. It is indubitable that an illegal strike in the form of a sit-down strike occurred in petitioner’s premises, as a show of sympathy to the two employees who were dismissed by petitioner. Apart from the allegations in its complaint for illegal strike filed before the Labor Arbiter, petitioner presented the affidavits and testimonies of their other employees which confirm the participation of respondents in the illegal strike. Petitioner has sufficiently established that respondents remained in the work premises in the guise of waiting for orders from management to resume operations when, in fact, they were actively participating in the illegal strike. PTC v. PILTEA. It is settled that these requirements are mandatory in nature and failure to comply therewith renders the strike illegal. || In the case at bar, the Union staged the strike on the same day that it filed its second notice of strike.The Union violated the seven-day strike ban. This requirement should be observed to give the Department of Labor and Employment (DOLE) an opportunity to verify whether the projected strike really carries the approval of the majority of the union members. || Moreover, we agree with the CA that there was no union busting which would warrant the non-observance of the cooling-off period.To constitute union busting under Article 263 of the Labor Code, there must be: 1) a dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws; and 2)the existence of the union must be threatened by such dismissal.In the case at bar, the second notice of strike filed by the Union merely assailed the mass promotion of its officers and members during the CBA negotiations. Surely, promotion is different from dismissal. Buklurang ng Manggagawa sa Clothmen Knitting Corp. v. CA. The blockade of the delivery of trucks and the attendance of employees from the other departments of the respondent meant work stoppage. The placards that the picketers caused to be displayed arose from matters concerning terms or conditions of employment as well as the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment.

2. Nature and Purpose BLTBCo v. NLRC, supra.

3. Rationale for Regulation by Law Lapanday Workers Union v. NLRC. A strike is "any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute." 4 It is the most preeminent of the economic weapons of workers which they unsheathe to force management to agree to an equitable sharing of the joint product of labor and capital. Undeniably, strikes exert some disquieting effects not only on the relationship between labor and management but also on the general peace and progress of society. Our laws thus regulate their exercise within reasons by balancing the interests of labor and management together with the overarching public interest

4. Scope of the term “strike” Sta. Rosas Coca-Cola Plant EU v. CCBP. A strike is the most powerful of the economic weapons of workers which they unsheathe to force management to agree to an equitable sharing of the joint product of labor and capital. It is a weapon that can either breathe life to or destroy the Union and its members in their struggle with management for a more equitable due to their labors.37 The decision to declare a strike must therefore rest on a rational basis, free from emotionalism, envisaged by the tempers and tantrums of a few hot heads, and finally focused on the legitimate interests of the Union which should not, however, be antithetical to the public welfare, and, to be valid, a strike must be pursued within legal bounds. The right to strike as a means of attainment of social justice is never meant to oppress or destroy the employer. || A labor dispute includes any controversy or matter concerning terms or 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 employer and employee || Article 212(o) of the Labor Code defines strike as a temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. In Bangalisan v. Court of Appeals,31 the Court ruled that "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."32 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

5. Effect on Work Relationship LC, 212(o), supra Chuayuco Steel v. Buklod ng Manggagawa. In cases not falling within the prohibition against strikes, the legality or illegality of a strike depends first, upon the purpose for which it is maintained, and, second, upon the means employed in carrying it on. Thus, if the purpose which the laborers intend to accomplish by means of a strike is trivial, unreasonable or unjust (as in the case of the National Labor Union vs. Philippine Match Co., 70 Phil., 300), or if in carrying on the strike the strikers should commit violence or cause injuries to persons or damage to property (as in the case of National Labor Union, Inc., vs. Court of Industrial Relations, et al., 68 Phil., 732) the strike, although not prohibited by injunction, may be declared by the court illegal, with the adverse consequences to the strikers (Luzon Marine Dept. Union vs. Roldan, 86 Phil., 507). || Where, in carrying out the strike, coercion, force, intimidation, violation with physical injuries, sabotage and the use of unnecessary and obscene language or epithets were committed by the top officials and members of the union in an attempt to prevent the other willing laborers to go to work, it was held that "a strike held under those circumstances cannot be justified in a regime of law for that would encourage abuses and terrorism and would subvert the very purpose of the law which provides for arbitration and peaceful settlement of labor disputes" G&S Transport v. Infante, supra

6. Types and Conversion Master Iron Labor v. NLRC. All told, the strike staged by the petitioners was a legal one even though it may have been called to offset what the strikers believed in good faith to be unfair labor practices on the part of the employer (Ferrer, et al. vs. Court of Industrial Relations, et al., 17 SCRA 352 [1966]). Verily, such presumption of legality prevails even if the allegations of unfair labor practices are subsequently found out to be untrue (People's Industrial and Commercial Employees and Workers Org. [FFW] vs. People's Industrial and Commercial Corporation, 112 SCRA 440 [1982]). Consonant with these jurisprudential pronouncements, is Article 263 of the Labor Code which clearly states "the policy of the State to encourage free trade unionism and free collective bargaining". Paragraph (b) of the same article guarantees the workers' "right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection" and recognizes the "right of legitimate labor organizations to strike and picket and of employers to lockout" so long as these actions are "consistent with the national interest" and the grounds therefor do not involve inter-union and intra-union disputes. a. Unfair Labor Practice

LC, 263(c). In case of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lockout with the Ministry at least 30 day before the intended date thereof. In cases of unfair labor practice, the period of notice shall be 15 days and in the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members. However, in case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting, where the existence of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately. (As amended by Executive Order No. 111, December 24, 1986).

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Labor II Finals Reviewer Prof. P. Daway 2nd semester, AY ’10-‘11

Janz Hanna Ria N. Serrano

Shell Oil Workers Union v. Shell, supra. b. Bargaining Deadlock – Economic/ULP

LC, 263(c), supra Consolidated Labor Assoc v. Marsman & Co. The Union began the strike because it believed in good faith that settlement of their demands was at an impasse and that further negotiations would only come to naught. It stopped the strike upon the belief they could go back to work. Then it renewed the strike (or it started a new strike) as a protest against the discrimination practiced by the Company. Both are valid grounds for going on a strike

c. Non-conversion – Strike to Lockout Sukhothai Cuisine & Restaurant v. CA. This Court has held that strikes staged in violation of agreements providing for arbitration are illegal, since these agreements must be strictly adhered to and respected if their ends are to be achieved.10 The rationale of the prohibition under Article 264 is that once jurisdiction over the labor dispute has been properly acquired by competent authority, that jurisdiction should not be interfered with by the application of the coercive processes of a strike.11 Indeed it is among the chief policies of the State to promote and emphasize the primacy of free collective bargaining and negotiations, including voluntary arbitration, mediation, and conciliation, as modes of settling labor, or industrial disputes.12 In Alliance of Government Workers v. Minister of Labor,13 Chief Justice Fernando declared that the principle behind labor unionism in private industry is that industrial peace cannot be secured through compulsion by law. Relations between private employers and their employees rest on an essentially voluntary basis, subject to the minimum requirements of wage laws and other labor and welfare legislation. || The alleged dismissals of Lucente and respondent Lanorias, both union members, which allegedly triggered the wildcat strike, are not sufficient grounds to justify the radical recourse on the part of the private respondents. The questions that surround their dismissal, as private respondents so affirm, are connected to the alleged breach of the "guarantee" by the petitioner not to dismiss its employees during the pendency of the arbitration case, the very questions which they also link to the other incidents of unfair labor practices allegedly committed by the petitioner—these matters should have been raised and resolved in the voluntary arbitration proceedings that were commenced precisely to address them.

7. Grounds Book V, Rule XXII, Sec. 5. a. Allowable Strike

LC, 263(c), supra. b. Prohibited Strikes

LC, 263(b). Workers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection. The right of legitimate labor organizations to strike and picket and of employers to lockout, consistent with the national interest, shall continue to be recognized and respected. However, no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intra-union disputes. LC, 263(g), supra. LC, 264(a). a) No labor organization or employer shall declare a strike or lockout without first having bargained collectively in accordance with Title VII of this Book or without first having filed the notice required in the preceding Article or without the necessary strike or lockout vote first having been obtained and reported to the Ministry.

No strike or lockout shall be declared after assumption of jurisdiction by the President or the Minister or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout.

Any worker whose employment has been terminated as a consequence of any unlawful lockout shall be entitled to reinstatement with full backwages. Any union officer who knowingly participates in an illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status: Provided, That mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the employer during such lawful strike. LC, 265. Improved offer balloting. - In an effort to settle a strike, the Department of Labor and Employment shall conduct a referendum by secret ballot on the improved offer of the employer on or before the 30th day of the strike. When at least a majority of the union members vote to accept the improved offer the striking workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement.

In case of a lockout, the Department of Labor and Employment shall also conduct a referendum by secret balloting on the reduced offer of the union on or before the 30th day of the lockout. When at least a majority of the board of directors or trustees or the partners holding the controlling interest in the case of a partnership vote to accept the reduced offer, the workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement. (Incorporated by Section 28, Republic Act No. 6715, March 21, 1989). IBM v. NLRC, supra. Biflex LU v. Filflex and Biflex. Stoppage of work due to welga ng bayan is in the nature of a general strike, an extended sympathy strike. It affects numerous employers including those who do not have a dispute with their employees regarding their terms and conditions of employment. || Employees who have no labor dispute with their employer but who, on a day they are scheduled to work, refuse to work and instead join a welga ng bayan commit an illegal work stoppage Intra-union/Inter-union dispute Marino v. Gamilla. As pointed out by petitioners, the Court of Appeals erroneously categorized the instant matter as a labor dispute. Such labor dispute includes any controversy or matter concerning terms or 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 employer and employee.45 Jurisdiction over labor disputes, including claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations is vested in Labor Arbiters and the National Labor Relations Commission (NLRC). || On the other hand, an intra-union dispute refers to any conflict between and among union members. It encompasses all disputes or grievances arising from any violation of or disagreement over any provision of the constitution and by-laws of a union, not excepting cases arising from chartering or affiliation of labor organizations or from any violation of the rights and conditions of union membership provided for in the Labor Code.47 In contrast, an inter-union dispute refers to any conflict between and among legitimate labor organizations involving questions of representation for purposes of collective bargaining; it includes all other conflicts which legitimate labor organizations may have against each other based on any violations of their rights as labor organizations.48 Like labor disputes, jurisdiction over intra-union and inter-union disputes does not pertain to the regular courts. It is vested in the Bureau of Labor Relations Divisions in the regional offices of the Department of Labor.

c. No Strike Clause PANECO v. NLRC. The State guarantees the right of all workers to self-organization, collective bargaining and negotiations, as well as peaceful concerted activities, including the right to strike, in accordance with law. 7 The right to strike, however, is not absolute. It has heretofore been held that a "no strike, no lock-out" provision in the Collective Bargaining Agreement ("CBA") is a valid stipulation although the clause may be invoked by an employer only when the strike is economic in nature or one which is conducted to force wage or other concessions from the employer that are not mandated to be granted by the law itself. 8 It would be inapplicable to prevent a strike which is grounded on unfair labor practice. In this situation, it is not essential that the unfair labor practice act has, in fact, been committed; it suffices that the striking workers are shown to have acted honestly on an impression that the company has committed such unfair labor practice and the surrounding circumstances could warrant such a belief in good faith Malayang Samahan ng Manggagawa sa Greenfield v. Ramos. A no strike, no lock out provision can only be invoked when the strike is economic in nature, i.e. to force wage or other concessions from the employer which he is not required by law to grant.26 Such a provision cannot be used to assail the legality of a strike which is grounded on unfair labor practice, as was the honest belief of herein petitioners. Again, whether or not there was indeed unfair labor practice does not affect the strike.

8. Striking Party

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Labor II Finals Reviewer Prof. P. Daway 2nd semester, AY ’10-‘11

Janz Hanna Ria N. Serrano

Book V, Rule XXII, Sec. 6, supra. 9. Procedural Requirements – Book V, Rule XXII, Sec. 5-11.

a. Effort to Bargain LC, 264(a), supra. LC, 250-252, supra. 1. Employers Counter-proposal

Club Filipino v. Bautista. In cases of bargaining deadlocks, the notice shall, as far as practicable, further state the unresolved issues in the bargaining negotiations and be accompanied by the written proposals of the union, the counter-proposals of the employer and the proof of a request for conference to settle differences. In cases of unfair labor practices, the notice shall, as far as practicable, state the acts complained of, and efforts taken to resolve the dispute amicably. || Any notice which does not conform with the requirements of this and the foregoing section shall be deemed as not having been filed and the party concerned shall be so informed by the regional branch of the Board. || In the instant case, the union cannot be faulted for its omission. The union could not have attached the counter-proposal of the company in the notice of strike it submitted to the NCMB as there was no such counter-proposal.

b. Filing of Notice of Intention LC, 263(c). In case of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lockout with the Ministry at least 30 day before the intended date thereof. In cases of unfair labor practice, the period of notice shall be 15 days and in the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members. However, in case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting, where the existence of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately. (As amended by Executive Order No. 111, December 24, 1986). LC, 263(d). The notice must be in accordance with such implementing rules and regulations as the Minister of Labor and Employment may promulgate. LC, 263(e). During the cooling-off period, it shall be the duty of the Ministry to exert all efforts at mediation and conciliation to effect a voluntary settlement. Should the dispute remain unsettled until the lapse of the requisite number of days from the mandatory filing of the notice, the labor union may strike or the employer may declare a lockout. LC, 264(a), supra. Book V, Rule XXII, Sec. 7, supra.

c. Observance of Cooling-off Period LC, 263(c), supra. LC, 263(e), supra.

d. Vote LC, 263(f). ) A decision to declare a strike must be approved by a majority of the total union membership in the bargaining unit concerned, obtained by secret ballot in meetings or referenda called for that purpose. A decision to declare a lockout must be approved by a majority of the board of directors of the corporation or association or of the partners in a partnership, obtained by secret ballot in a meeting called for that purpose. The decision shall be valid for the duration of the dispute based on substantially the same grounds considered when the strike or lockout vote was taken. The Ministry may, at its own initiative or upon the request of any affected party, supervise the conduct of the secret balloting. In every case, the union or the employer shall furnish the Ministry the results of the voting at least seven days before the intended strike or lockout, subject to the cooling-off period herein provided. (As amended by Batas Pambansa Bilang 130, August 21, 1981 and further amended by Executive Order No. 111, December 24, 1986). LC, 264(a), supra. PilTel v. PILTEA, supra. Sukhothai Cuisine and Restauratant v. CA, supra.

10. Test of Legality a. Legal Strikes

i. Purpose and means test Union of Filipro Employees v. Nestle. Regardless therefore of their motives, or the validity of their claims, the striking workers must cease and/or desist from any and all acts that tend to, or undermine this authority of the Secretary of Labor, once an assumption and/or certification order is issued. They cannot, for instance, ignore return-to-work orders, citing unfair labor practices on the part of the company, to justify their actions. Thus, the NLRC in its decision, re-emphasized the nature of a return-to-work order within the context of Art. 264(g) as amended by BP Nos. 130 and 227 Reliance Surety and Insurance Co v. NLRC. The private respondents can not find sanctuary in the cases of Ferrer v. Court of Industrial Relations 6 and Almira v. BF Goodrich Philippines, Inc., 7 in which we affirmed reinstatement in spite of an "illegal" strike. In the first place, neither Ferrer nor Almira involved an illegal strike. What was involved in Ferrer was a defective strike, that is, one conducted in violation of the thirty-day "cooling-off' period, but one carried out in good faith "to offset what petitioners were warranted in believing in good faith to be unfair labor practices [committed by] Management." 8 What Almira on the other hand declared was that a violent strike alone does not make the action illegal, which would justify the dismissal of strikers. It is therefore clear that we ordered reinstatement in both cases not in spite of the illegality of the strike but on the contrary, because the same was "legal", that is to say, carried out in good faith.

ii. Guidelines and balancing of interest Shell Oil WU v. Shell, supra. Stamford Mktg. Corp v. Julian. Indeed, the right to strike, while constitutionally recognized, is not without legal restrictions.13 The Labor Code regulates the exercise of said right by balancing the interests of labor and management in the light of the overarching public interest. Thus, paragraphs (c) and (f) of Article 26314 mandate the following procedural steps to be followed before a strike may be staged: filing of notice of strike, taking of strike vote, and reporting of the strike vote result to the Department of Labor and Employment.15 It bears stressing that these requirements are mandatory, meaning, non-compliance therewith makes the strike illegal. The evident intention of the law in requiring the strike notice and strike-vote report is to reasonably regulate the right to strike, which is essential to the attainment of legitimate policy objectives embodied in the law.16

iii. Defenses – good faith Master Iron LU v. NLRC, supra National Union of Workers Hotels, Restaurant and Allied industries v. NLRC. Generally, a strike based on a "non-strikeable" ground is an illegal strike; corollarily, a strike grounded on ULP is illegal if no such acts actually exist. As an exception, even if no ULP acts are committed by the employer, if the employees believe in good faith that ULP acts exist so as to constitute a valid ground to strike, then the strike held pursuant to such belief may be legal. 26 As a general rule, therefore, where the union believed that the employer committed ULP and the circumstances warranted such belief in good faith, the resulting strike may be considered legal although, subsequently, such allegations of unfair labor practices were found to be groundless. || An established caveat, however, is that a mere claim of good faith would not justify the holding of a strike under the aforesaid exception as, in addition thereto, the circumstances must have warranted such belief . It is, therefore, not enough that the union believed that the employer committed acts of ULP when the circumstances clearly negate even a prima facie showing to sustain such belief. 28

b. Illegal Strikes i. Basis of illegality

Phil. Diamond Hotel v. MDHEU. The union (hereafter referred to as respondent) is admittedly not the exclusive representative of the majority of the employees of petitioner, hence, it could not demand from petitioner the right to bargain collectively in their behalf. Petitioner’s refusal to bargain then with respondent can not be considered a ULP to justify the staging of the strike || The

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Labor II Finals Reviewer Prof. P. Daway 2nd semester, AY ’10-‘11

Janz Hanna Ria N. Serrano

second ground alleged by respondent to justify the staging of the strike – that petitioner prevented or intimidated some workers from joining the union before, during or after the strike – was correctly discredited by the appellate court in this wise: . . . a careful study of the allegations of petitioners in their petition reveals that it contained general allegations that the Management of the Hotel committed unfair labor practices by refusing to bargain with the union and by alleged acts of union interference, coercion and discrimination tantamount to union-busting. Since it is the union who alleges that unfair labor practices were committed by the Hotel, the burden of proof is on the union to prove its allegations by substantial evidence. A. Soriano Aviation v. EAASA. The Court notes that, as found by the Labor Arbiter in NLRC Case No. 07-05409-97, the first strike or the mechanics’ refusal to work on 3 consecutive holidays was prompted by their disagreement with the management-imposed new work schedule. Having been grounded on a non-strikeable issue and without complying with the procedural requirements, then the same is a violation of the "No Strike-No Lockout Policy" in the existing CBA. Respecting the second strike, where the Union complied with procedural requirements, the same was not a violation of the "No Strike- No Lockout" provisions, as a "No Strike-No Lockout" provision in the Collective Bargaining Agreement (CBA) is a valid stipulation but may be invoked only by employer when the strike is economic in nature or one which is conducted to force wage or other concessions from the employer that are not mandated to be granted by the law. It would be inapplicable to prevent a strike which is grounded on unfair labor practice.10 In the present case, the Union believed in good faith that petitioner committed unfair labor practice when it went on strike on account of the 30-day suspension meted to the striking mechanics, dismissal of a union officer and perceived union-busting, among others.

ii. Effect of illegality LC, 264(a), supra. Sukhothai Cuisine v. CA, supra. Nissan Motors v. SOL. To be sure, the Union engaged in work showdown which under the circumstances in which they were undertaken constitute illegal strike. The company is therefore right in dismissing the subject Union officers in accordance with Article 264 (a) of the Labor Code, for participating in illegal strike in defiance of the assumption of jurisdiction order by the Labor Secretary. | However, the members of the Union should not be as severely punished. Dismissal is a harsh penalty as surely they were only following orders from their officers. Besides, there is no evidence that they engaged or participated in the commission of illegal activities during the said strike. They should thus be reinstated to their former positions, but without backwages. Their action which resulted in prejudice to the Company cannot however go unpunished. For the injury that they have collectively inflicted on the company, they should be disciplined. A one month suspension is a reasonable disciplinary measure which should be deemed served during the time they out of their jobs Phimco v. PILA. We explained in Samahang Manggagawa sa Sulpicio Lines, Inc.-NAFLU v. Sulpicio Lines, Inc.71 that the effects of illegal strikes, outlined in Article 264 of the Labor Code, make a distinction between participating workers and union officers. The services of an ordinary striking worker cannot be terminated for mere participation in an illegal strike; proof must be adduced showing that he or she committed illegal acts during the strike. The services of a participating union officer, on the other hand, may be terminated, not only when he actually commits an illegal act during a strike, but also if he knowingly participates in an illegal strike. || In all cases, the striker must be identified. But proof beyond reasonable doubt is not required; substantial evidence, available under the attendant circumstances, suffices to justify the imposition of the penalty of dismissal on participating workers and union officers as above described

iii. Effect of assumption/certification order LC, 263(g), supra. Steel Corp v. SCP Employees-NFLU. The powers granted to the Secretary under Article 263(g) of the Labor Code have been characterized as an exercise of the police power of the State, aimed at promoting the public good. When the Secretary exercises these powers, he is granted "great breadth of discretion" to find a solution to a labor dispute. The most obvious of these powers is the automatic enjoining of an impending strike or lockout or its lifting if one has already taken place. || The moment the Secretary of Labor assumes jurisdiction over a labor dispute in an industry indispensable to national interest, such assumption shall have the effect of automatically enjoining the intended or impending strike. It was not even necessary for the Secretary of Labor to issue another order directing a return to work. The mere issuance of an assumption order by the Secretary of Labor automatically carries with it a return-to-work order, even if the directive to return to work is not expressly stated in the assumption order. YSSEU v. YSS Lab. The grant of these plenary powers to the Secretary of Labor makes it incumbent upon him to bring about soonest, a fair and just solution to the differences between the employer and the employees, so that the damage such labor dispute might cause upon the national interest may be minimized as much as possible, if not totally averted, by avoiding stoppage of work or any lag in the activities of the industry or the possibility of those contingencies that might cause detriment to the national interest. || In order to effectively achieve such end, the assumption or certification order shall have the effect of automatically enjoining the intended or impending strike or lockout. Moreover, if one has already taken place, all striking workers 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. Bagong Pagkakaisa ng Manggagawa ng Triumph v. Sec. Under the law,65 the Labor Secretary's assumption of jurisdiction over the dispute or its certification to the National Labor Relations Commission for compulsory arbitration shall have the effect of automatically enjoining the intended or impending strike or lockout and 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 before the strike or lockout. The union and its officers, as well as the workers, defied the Labor Secretary's assumption of jurisdiction, especially the accompanying return-to-work order within twenty-four (24) hours; their defiance made the strike illegal under the law66 and applicable jurisprudence.67 Consequently, it constitutes a valid ground for dismissal.68 Article 264(a), paragraph 3 of the Labor Code provides that "Any union officer who knowingly participates in an illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status. || The union officers were answerable not only for resisting the Labor Secretary's assumption of jurisdiction and return-to-work orders; they were also liable for leading and instigating and, in the case of Figura, for participating in a work slowdown (during the CBA negotiations), a form of strike69 undertaken by the union without complying with the mandatory legal requirements of a strike notice and strike vote. These acts are similarly prohibited activities.

11. Employment of strike bearers LC, 263(c), supra. LC, 212(r). "Strike-breaker" means any person who obstructs, impedes, or interferes with by force, violence, coercion, threats, or intimidation any peaceful picketing affecting wages, hours or conditions of work or in the exercise of the right of self-organization or collective bargaining.

12. Improved Offer Balloting and Strikes LC, 265, supra. Book V, Rule XXII, Sec. 12, supra.

C. Slowdown as Concerted Activity IBM v. NLRC, supra. = illegal

D. Picketing Book V, Rule XXII, Sec. 13, supra. 1. Definition 2. Nature and Purpose of Picket Line

Insular Life EA v. Insular Life. Picketing is inherently explosive. For, as pointed out by one author, "The picket line is an explosive front, charged with the emotions and fierce loyalties of the union-management dispute. It may be marked by colorful name-calling, intimidating threats or sporadic fights between the pickets and those who pass the line." (Mathews, Labor Relations and the Law, p. 752). The picket line

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Labor II Finals Reviewer Prof. P. Daway 2nd semester, AY ’10-‘11

Janz Hanna Ria N. Serrano

being the natural result of the respondents' unfair labor practice, Ibarra's misconduct is at most a misdemeanor which is not a bar to reinstatement. Sta. Rosa Coca-Cola Plant EU v. CCBP, supra.

3. Picketing and Libel Laws PCIB v. Philanabank Employees Assn. There was a labor controversy resulting in a strike, fortunately lasting only for one day. The labor union made use of its constitutional right to picket. From the time of Mortera v. Court of Industrial Relations, a 1947 decision, 10 this Court has been committed to the view that peaceful picketing is part of the freedom of speech guarantee of the Constitution. x x x In no uncertain terms, it made clear that the judiciary, in deciding suits for libel, must ascertain whether or not the alleged offending words may be embraced by the guarantees of free speech and free press.

4. Curtailment Nagkahiusang Manggagawa sa Cuizon Hotel v. Libron. It is to be understood, of course, that the peaceful picketing authorized cannot countenance acts of illegality. The interim Batasang Pambansa has spoken on the subject thus: "(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

5. Regulation/Restrictions, Innocent Party Rule and Liabilities Liwayway publishing v. Permanent Concrete WU. The right to picket as a means of communicating the facts of a labor dispute is a phrase of the freedom of speech guaranteed by the constitution. If peacefully carried out, it cannot be curtailed even in the absence of employer-employee relationship.

The right is, however, not an absolute one. While peaceful picketing is entitled to protection as an exercise of free speech, we believe that courts are not without power to confine or localize the sphere of communication or the demonstration to the parties to the labor dispute, including those with related interest, and to insulate establishments or persons with no industrial connection or having interest totally foreign to the context of the dispute. Thus, the right may be regulated at the instance of third parties or "innocent. bystanders" if it appears that the inevitable result of its exercise is to create an impression that a labor dispute with which they have no connection or interest exists between them and the picketing union or constitute an invasion of their rights. In one case decided by this Court, we upheld a trial court's injunction prohibiting the union from blocking the entrance to a feed mill located within the compound of a flour mill with which the union had a dispute. Although sustained on a different ground, no connection was found other than their being situated in the same premises. It is to be noted that in the instances cited, peaceful picketing has not been totally banned but merely regulated. And in one American case, a picket by a labor union in front of a motion picture theater with which the union had a labor dispute was enjoined by the court from being extended in front of the main entrance of the building housing the theater wherein other stores operated by third persons were located

6. Prohibited Activities – Peaceful Picketing LC, 264(b). 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. Book V, Rule XXII, Sec. 13, supra.

E. Role of Peace Officers During Strikes and Picketing 1. Escorting

LC, 264(d). No public official or employee, including officers and personnel of the New Armed Forces of the Philippines or the Integrated National Police, or armed person, shall bring in, introduce or escort in any manner, any individual who seeks to replace strikers in entering or leaving the premises of a strike area, or work in place of the strikers. The police force shall keep out of the picket lines unless actual violence or other criminal acts occur therein: Provided, That nothing herein shall be interpreted to prevent any public officer from taking any measure necessary to maintain peace and order, protect life and property, and/or enforce the law and legal order. (As amended by Executive Order No. 111, December 24, 1986).

2. Arrest and Detention of Law Violators LC, 266. . Requirement for arrest and detention. - Except on grounds of national security and public peace or in case of commission of a crime, no union members or union organizers may be arrested or detained for union activities without previous consultations with the Secretary of Labor.

X. Employer Lockout A. Basis, Limitation and Definition

LC, 263(b), supra. LC, 212(p). "Lockout" means any temporary refusal of an employer to furnish work as a result of an industrial or labor dispute. Book V, Rule !, Sec. 1 (gg).

B. Effect on Work Relationship LC, 212(p), supra.

C. Ground for Lockout LC, 263(c), supra.

D. Prohibited Lockout LC, 263(b), supra. LC, 263(g), supra. LC, 264(a), supra.

E. Procedural Requirements LC, 264(a), supra. LC, 264(c). No employer shall use or employ any strike-breaker, nor shall any person be employed as a strike-breaker. LC, 264(d), supra. LC, 264(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. (As amended by Batas Pambansa Bilang 227, June 1, 1982). LC, 263(e). During the cooling-off period, it shall be the duty of the Ministry to exert all efforts at mediation and conciliation to effect a voluntary settlement. Should the dispute remain unsettled until the lapse of the requisite number of days from the mandatory filing of the notice, the labor union may strike or the employer may declare a lockout. Book V, Rule XXII, Sec. 5-11. Philtread v. NLRC. The NLRC also found that the company had complied with the procedural requirements of a valid lockout (Art. 263 of the Labor Code) and that in view of the reasons therefor (enumerated in pages 14-19 of the resolution of February 14, 1991), it was clear to the NLRC that "the company in resorting to lockout wanted to obtain industrial peace, a peace that seemed unobtainable as long as those locked out obstructively formed part of its operation" (p. 38, Rollo). This factual finding was not questioned by any of the parties. The NLRC concluded that the company incurred no liability to the locked out employees.

F. Effect of Illegal Lockout LC, 264(a), par. 3, 1st sentence. Any worker whose employment has been terminated as a consequence of any unlawful lockout shall be entitled to reinstatement with full backwages.

XI. Labor Injunction A. Definition and Nature

PAL v. NLRC. Generally, injunction is a preservative remedy for the protection of one's substantive rights or interest. It is not a cause of action in itself but merely a provisional remedy, an adjunct to a main suit. It is resorted to only when there is a pressing necessity to avoid injurious consequences which cannot be remedied under any standard of compensation. The application of the injunctive writ rests upon the existence of an emergency or of a special reason before the main case be regularly heard. The essential conditions for granting such temporary injunctive relief are that the complaint alleges facts which appear to be sufficient to constitute a proper basis for injunction and that on the entire showing from the contending parties, the injunction is reasonably necessary to protect the legal rights of the plaintiff pending the litigation. Injunction is also a

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Labor II Finals Reviewer Prof. P. Daway 2nd semester, AY ’10-‘11

Janz Hanna Ria N. Serrano

special equitable relief granted only in cases where there is no plain, adequate and complete remedy at law. || From the foregoing provisions of law, the power of the NLRC to issue an injunctive writ originates from "any labor dispute" upon application by a party thereof, which application if not granted "may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party." The term "labor dispute" is defined as "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 "controversy" is likewise defined as "a litigated question; adversary proceeding in a court of law; a civil action or suit, either at law or in equity; a justiciable dispute." A "justiciable controversy" is "one involving an active antagonistic assertion of a legal right on one side and a denial thereof on the other concerning a real, and not a mere theoretical question or issue." Taking into account the foregoing definitions, it is an essential requirement that there must first be a labor dispute between the contending parties before the labor arbiter. In the present case, there is no labor dispute between the petitioner and private respondents as there has yet been no complaint for illegal dismissal filed with the labor arbiter by the private respondents against the petitioner. General Rule – Prohibition LC, 254. Injunction prohibited. – No temporary or permanent injunction or restraining order in any case involving or growing out of labor disputes shall be issued by any court or other entity, except as otherwise provided in Articles 218 and 264 of this Code. (As amended by Batas Pambansa Bilang 227, June 1, 1982). LC, 211(a). Book V, Rule XXII, Sec. 14. SMC v. NLRC. Article 254 of the Labor Code provides that no temporary or permanent injunction or restraining order in any case involving or growing out of labor disputes shall be issued by any court or other entity except as otherwise provided in Articles 218 and 264 of the Labor Code. Under the first exception, Article 218 (e) of the Labor Code expressly confers upon the NLRC the power to enjoin or restrain actual and threatened commission of any or all prohibited or unlawful acts, or to require the performance of a particular act in any labor dispute which, if not restrained or performed forthwith, may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party x x x. The second exception, on the other hand, is when the labor organization or the employer engages in any of the prohibited activities enumerated in Article 264. Caltex FMSA v. CIR. The prohibition to issue labor injunctions is designed to give labor a comparable bargaining power with capital and must be liberally construed to that end (U.S. vs. Brotherhood of Locomotive Engineers, 79 F. Supp. 485, Certiorari denied, 69 S. Ct. 137, 335 U.S. 867, cause remanded on other grounds, 174 F. 2nd 160, 85 U.S. App. D.C., certiorari denied 70 S. Ct. 140, 338 U.S. 872, 94 L. Ed. 535). It is said that the prohibition creates substantive and not purely procedural law. (Oregon Shipbuilding Corporation vs. National Labor Relations Board, 49 F. Supp. 886). Within the purview of our ruling, speaking through Justice Labrador, in Social Security Employees Association (PAFLU), et al. vs. The Hon. Edilberto Soriano, et al. (G.R. No. L-20100, July 16, 1964, 11 SCRA 518, 520), there can be no injunction issued against any strike except in only one instance, that is, when a labor dispute arises in an industry indispensable to the national interest and such dispute is certified by the President of the Philippines to the Court of Industrial Relations in compliance with Sec. 10 of Republic Act No. 875. As a corollary to this, an injunction in an uncertified case must be based on the strict requirement See. 9 (d) of Republic Act No. 875; the purpose of such injunction is not to enjoin the strike itself, but only unlawful activities. To the extent, then, that the Company sought injunctive relief under Sec. 9(d) of Republic Act No.875, respondent court had jurisdiction over the Company's "Urgent Petition" dated April 26, 1965.

B. Exceptions – When Allowed LC, 254, supra. LC, 218(e). To enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts or to require the performance of a particular act in any labor dispute which, if not restrained or performed forthwith, may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party: Provided, That no temporary or permanent injunction in any case involving or growing out of a labor dispute as defined in this Code shall be issued except after hearing the testimony of witnesses, with opportunity for cross-examination, in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and only after a finding of fact by the Commission, to the effect:

(1) That prohibited or unlawful acts have been threatened and will be committed and will be continued unless restrained, but no injunction or temporary restraining order shall be issued on account of any threat, prohibited or unlawful act, except against the person or persons, association or organization making the threat or committing the prohibited or unlawful act or actually authorizing or ratifying the same after actual knowledge thereof;

(2) That substantial and irreparable injury to complainant’s property will follow;

(3) That as to each item of relief to be granted, greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by the granting of relief;

(4) That complainant has no adequate remedy at law; and

(5) That the public officers charged with the duty to protect complainant’s property are unable or unwilling to furnish adequate protection.

Such hearing shall be held after due and personal notice thereof has been served, in such manner as the Commission shall direct, to all known persons against whom relief is sought, and also to the Chief Executive and other public officials of the province or city within which the unlawful acts have been threatened or committed, charged with the duty to protect complainant’s property: Provided, however, that if a complainant shall also allege that, unless a temporary restraining order shall be issued without notice, a substantial and irreparable injury to complainant’s property will be unavoidable, such a temporary restraining order may be issued upon testimony under oath, sufficient, if sustained, to justify the Commission in issuing a temporary injunction upon hearing after notice. Such a temporary restraining order shall be effective for no longer than twenty (20) days and shall become void at the expiration of said twenty (20) days. No such temporary restraining order or temporary injunction shall be issued except on condition that complainant shall first file an undertaking with adequate security in an amount to be fixed by the Commission sufficient to recompense those enjoined for any loss, expense or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs, together with a reasonable attorney’s fee, and expense of defense against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the Commission.

The undertaking herein mentioned shall be understood to constitute an agreement entered into by the complainant and the surety upon which an order may be rendered in the same suit or proceeding against said complainant and surety, upon a hearing to assess damages, of which hearing, complainant and surety shall have reasonable notice, the said complainant and surety submitting themselves to the jurisdiction of the Commission for that purpose. But nothing herein contained shall deprive any party having a claim or cause of action under or upon such undertaking from electing to pursue his ordinary remedy by suit at law or in equity: Provided, further, That the reception of evidence for the application of a writ of injunction may be delegated by the Commission to any of its Labor Arbiters who shall conduct such hearings in such places as he may determine to be accessible to the parties and their witnesses and shall submit thereafter his recommendation to the Commission. (As amended by Section 10, Republic Act No. 6715, March 21, 1989). LC, 264, supra. IBM v. NLRC, supra.

C. Issuing Agency 1. NLRC; Labor Arbiter

Nat’l Mines and Allied Workers Union v. Vera. Petitioners' reliance on the provision of Art. 254 of the New Labor Code (herein earlier quoted) which prohibits injunctions or restraining orders in any case involving or growing out of a 'labor dispute' is not well-taken. This has no application to the case at bar. Civil Case No. 2749 is one which neither "involves" nor "grows out" of a labor dispute. What 'involves' or 'grows out' of a labor dispute is the NLRC case between petitioners and the judgment debtor, Philippine Iron Mines. The private respondents are not parties to the said NLRC case. Civil Case No. 2749 does not put in issue either the fact or validity of the proceeding in the NLRC case nor the decision therein rendered, much less the writ of execution issued thereunder. It does not seek to enjoin the execution of the decision against the properties of the judgment debtor. What is sought to be tried in Civil Case No. 2749 is whether the NLRC's decision and writ of

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Labor II Finals Reviewer Prof. P. Daway 2nd semester, AY ’10-‘11

Janz Hanna Ria N. Serrano

execution, above mentioned, shall be permitted to be satisfied against properties of private respondents, and not of the judgment debtor named in the NLRC decision and writ of execution. Such a recourse is allowed under the provisions of Section 17, Rule 39 of the Rules of Court. Nestle v. NLRC. The NLRC gravely abused its discretion and exceeded its jurisdiction by issuing the writ of injunction to stop the company from enforcing the civil obligation of the private respondents under the car loan agreements and from protecting its interest in the cars which, by the terms of those agreements, belong to it (the company) until their purchase price shall have been fully paid by the employee. The terms of the car loan agreements are not in issue in the labor case. The rights and obligations of the parties under those contracts may be enforced by a separate civil action in the regular courts, not in the NLRC.

2. Procedural Requirements and Rules for the Issuance of Labor Injunctions IBM v. NLRC. As a rule such restraining orders or injunctions do not issue ex parte, but only after compliance with the following requisites, to wit:

a) a hearing held "after due and personal notice thereof has been served, in such manner as the Commission shall direct, to all known persons against whom relief is sought, and also to the Chief Executive and other public officials of the province or city within which the unlawful acts have been threatened or committed charged with the duty to protect complainant's property;"

b) reception at the hearing of "testimony of witnesses, with opportunity for cross-examination, in support of the allegations of a complaint made under oath," as well as "testimony in opposition thereto, if offered . . .;

c) a finding of fact by the Commission, to the effect: (1) That prohibited or unlawful acts have been threatened and will be committed and will be continued unless restrained, but no

injunction or temporary restraining order shall be issued on account of any threat, prohibited or unlawful act, except against the person or persons, association or organization making the threat or committing the prohibited or unlawful act or actually authorizing or ratifying the same after actual knowledge thereof;

(2) That substantial and irreparable injury to complainant's property will follow; (3) That as to each item of relief to be granted, greater injury will be inflicted upon complainant by the denial of relief than will be

inflicted upon defendants by the granting of relief; (4) That complainant has no adequate remedy at law; and (5) That the public officers charged with the duty to protect complainant's property are unable or unwilling to furnish adequate

protection. However, a temporary restraining order may be issued ex parte under the following conditions: a) the complainant "shall also allege that, unless a temporary restraining order shall be issued without notice, a substantial and irreparable

injury to complainant's property will be unavoidable; b) there is "testimony under oath, sufficient, if sustained, to justify the Commission in issuing a temporary injunction upon hearing after

notice;" c) the "complainant shall first file an undertaking with adequate security in an amount to be fixed by the Commission sufficient to

recompense those enjoined for any loss, expense or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs, together with a reasonable attorney's fee, and expense of defense against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the Commission;" and

d) the "temporary restraining order shall be effective for no longer than twenty (20) days and shall become void at the expiration of said twenty (20) days.

The reception of evidence "for the application of a writ of injunction may be delegated by the Commission to any of its Labor Arbiters who shall conduct such hearings in such places as he may determine to be accessible to the parties and their witnesses and shall submit thereafter his recommendation to the Commission." Bisig ng Manggagawa sa Concrete v. NLRC. Verily, the factual circumstances proven by the evidence show that there was no concurrence of the five (5) prerequisites mandated by Art. 218 (e) of the Labor Code. Thus there is no justification for the issuance of the questioned Order of preliminary injunction.

To be sure, the issuance of an ex parte temporary restraining order in a labor dispute is not per se prohibited. Its issuance, however, should be characterized by care and caution for the law requires that it be clearly justified by considerations of extreme necessity, i.e., when the commission of unlawful acts is causing substantial and irreparable injury to company properties and the company is, for the moment, bereft of an adequate remedy at law. This is as it ought to be, for imprudently issued temporary restraining orders can break the back of employees engaged in a legal strike. Often times, they unduly tilt the balance of a labor warfare in favor of capital. When that happens, the deleterious effects of a wrongfully issued, ex parte temporary restraining order on the rights of striking employees can no longer be repaired for they defy simple monetization. Moreover, experience shows that ex parte applications for restraining orders are often based on fabricated facts and concealed truths. A more becoming sense of fairness, therefore, demands that such ex parte applications should be more minutely examined by hearing officers, lest, our constitutional policy of protecting labor becomes nothing but a synthetic shibboleth. The immediate need to hear and resolve these ex parte applications does not provide any excuse to lower our vigilance in protecting labor against the issuance of indiscriminate injunctions. Stated otherwise, it behooves hearing officers receiving evidence in support of ex parte injunctions against employees in strike to take a more active stance in seeing to it that their right to social justice is in no way violated despite their absence. This equalizing stance was not taken in the case at bar by the public respondents.

3. TRO Dinio v. Laguesma. In the performance of his duties, the public respondent should not be shackled by stringent rules, if to do so would result in manifest injustice. Thus, he cannot, and correctly did not, turn a blind eye to the arbitrary and haphazard manner by which the Med-Arbiter issued the subject temporary restraining order, even though this issue was not explicitly raised by private respondents. || There is no question that the issuance of a temporary restraining order is addressed to the sound discretion of the Med-Arbiter. However, "this discretion should be exercised based upon the grounds and in the manner provided by law." 22 In the case of labor injunctions or temporary restraining orders, one may issue only in instances where the complainant or applicant will suffer grave or irreparable damages as provided in Sec. 5, Rule XVI, Book V of the Omnibus Rules Implementing the Labor Code