LABOR REVIEW 1ST SEM 2013-2014 Atty. Ungos

July 2, 2013

LEGITIMIZING THE UNION

The start of the collective bargaining process is organizing the union. Now having organized the union is not enough to bargain collectively. The union has to be legitimized, and how do you legitimize a union. Now there are two ways.

A. Affiliation with a federation B. Independent registration

If you look at the definition of a legitimate labor organization, it has been defined as a labor organization that has been registered with the department of labor and employment or a branch thereof.

It is the registration with the department of labor employment that makes the labor organization a legitimate labor organization.

Suppose the union does not want to register itself? Now if the union does not want to undergo the rigors of registration, it can affiliate with a federation.

If the union affiliates with a federation it need not register provided that the federation is registered.

We may recall that a federation is composed of atleast 10 locals or chapters which are collective bargaining agents.

Now as i have told you earlier, it is the registration with the DOLE that makes a labor organization legitimate. If you organize the union as a corporation, it will not make it a legitimate labor organization. It will only give it legal personality as a corporation.

Now when does a union acquire legitimate status? You have to make a distinction. In case of an independent union (has its own registration) it becomes legitimized upon the issuance of the certificate of registration. Now when it comes to local chapters (those that are attached to a mother federation)

legitimacy is acquired upon the issuance of the charter certificate and upon the submission of the documentary requirements to the DOLE. It acquires legitimacy upon submission of the documentary requirements.

May the issuance of the charter certificate confer legitimacy upon a local chapter? For purposes of exercising the rights of legitimate labor organizations. No. But for the purpose of filing a petition for certification election. Yes it will be considered as a legitimate labor organization. But until the documentary requirements are submitted to the DOLE, it cannot exercise the other rights accorded to legitimate labor organizations, such as the right to own property, the right to be exempt from certain taxes. Those cannot be exercised by a local chapter which has not submitted the documentary requirements to the department of labor and employment.

Now to register a union ( independent union) there are certain requirements to be complied with.

Submit the documentary requirements. This are the documents that must. Be submitted. The first thing to do is to file an application for registration and together with the application is a statement indicating the name of the union, the address of the union, the names and addresses of its officers and it should also state that it is not a local chapter or affiliated with a federation and they should also attach the minutes of the organizational meeting and the list of the employees who participated in the meeting, the financial reports except if the union has been existing for less than 1 year, the constitution and by laws, and ofcourse the payment of the registration fee.

And take note. This is very important. All of the documentary requirements must be certified under oath by the secretary or treasurer of the union and attested by the president of the union. Both requirements must concur. If the documentary requirements was certified under oath by the secretary or treasurer of the union but not attested to by the president, it is a defect and the union will not be registered. And if it was registered, the registration of the union is considered defective and the registration may be impeached. The two requirements must concur. If the two requirements does not concur, it will be fatal to the acquisition of legitimate status of the labor organization.

Now with regard to a federation, aside from the documentary requirements that I have mentioned earlier it is also required to submit a statement that it has 10 local chapters and each of which must be a collective bargaining agent and of course it should also contain the names and addresses of the companies where the locals are collective bargaining agents.

Now where should the application for registration be filed?

If what is sought to be registered is an independent union, it should be filed with the

regional office of the department of labor. If what is sought to be registered is a federation, it should be filed with the BLR.

Now can the labor organization file a petition for certification election while waiting for the approval of its registration?

Yes it can already file for a petition for certification election. The approval of a petition for certification election is a ministerial duty. Once the requirements are complied with there is no choice but to approve the registration. Now suppose the department of labor refused to approve the petition for registration? The remedy is mandamus because the approval of the registration is a ministerial duty. You cannot file certiorari because it refers to the exercise of judicial functions and approval of the registration does not involve any judicial function.

Now once the registration is approved, the union may now exercise the rights accorded to a legitimate labor organization. First and foremost of which is to represent the employees within the bargaining unit in collective bargaining and to act as representative of its members in the collective bargaining, it can now sue and be sued, it can now own property, real or personal. And once the labor organization is certified as the collective bargaining representative, it can now ask for the financial statement of the company during CBA negotiations.

Now there are certain circumstances where the application for registration be denied. The grounds for the denial are the non compliance of the certification and attestation requirements, falsification of the documentary requirements, failure to comply with the documentary requirements within 30 days upon notice.

Failure to submit the requirements does not automatically result in the denial of the registration, the department of labor will send a notice and when the union did not submit the requirements within 30 days upon notice the registration will be denied.

How about in the other cases when the registration is denied? What will be your remedy? The remedy is to appeal. If the registration is denied by the regional office of the Dole, appeal to the BLR and if the denial is by the BLR, appeal to the secretary of labor.

(Illustration ni sir sa board)

Independent union Regional office of DOLE - BLR Can the decision of the BLR in its appellate jurisdiction be appealed to the secretary of labor? No. (Pag original jurisdiction langdawng BLR tsakapwedemagappealsa secretary of labor e.g. Registration of a federation or national union) What now is the remedy? The court of appeals by way of special civil action of certiorari.

Federation BLR- secretary of labor Court of appeals by way of special civil action on certiorari.

Now the grounds for the cancellation of the registration is different from the grounds of denial of registration.

The first ground for the cancellation of registration is falsification or misrepresentation with regard to the adoption or ratification of the constitution and by laws or amendments thereto, the minutes of ratification, and the members who took part in the ratification; misrepresentation with regard to the election of the union officers, the list of the voters and the minutes of the election; the registration may also be cancelled through the voluntary dissolution of the union and another ground is violation of the rights and conditions of union membership.

Now can the registration of the union be cancelled because some of the members of the union do not belong in the bargaining unit?

In cases where some of the employees in the union are daily paid and some are monthly paid, it will not result in the cancellation of registration of the union. But in certain exceptional circumstances where the union is a mixture of rank and file and supervisory employees, it will result to the cancellation of the registration of the union. Supervisors cannot join the union of rank and file and rank and file cannot join the union of supervisors. If there is a mixture of rank and file and supervisory employees, the registration has to be cancelled because it is not an appropriate union.

Now how do we go about the cancellation of the registration of the union? There are three ways. It can be done judicially, administratively or voluntarily. Judicial cancellation is done through the filing of a petition for cancellation, it can only be done through a direct action for cancellation. You cannot do it collaterally for example in a petition for certification election. It should be done by a separate petition for cancellation of registration.

Who can file for a petition for cancellation? If the ground for cancellation is violation of the rights and conditions of union membership, only the members can file a petition for cancellation of registration. And with regard to any other ground, any party in interest can file a petition for cancellation of registration. The party in interest could be the employer because it is interested in the collective bargaining. The employer can only bargain with a union that is a legitimate labor organization.

Now the mere fact that a petition for cancellation of the registration of the union does not disqualify the union from exercising the rights of a legitimate labor organization. It

can still enter into a CBA with the management, it can still file a petition for certification election, it can still file a motion for intervention in a petition for certification election. The only time that a union can be prevented from exercising those rights is that if there is a final judgement canceling the registration of the of the union. Only a final order of cancellation would strip the union of its legitimacy.

The registration of a union may also be cancelled administratively. This is more on the reportorial requirements. If it does not comply or does not report to the department of labor the matters it is required to report, for example the financial statement or the list of its officers, it can be a ground for administrative cancellation of registration. In the case of administrative cancellation, it is not automatic, the department of labor will send you a notice to comply with this reportorial requirements and when the union does not comply with the notice then the administrative proceedings shall take place.

The union may dissolve itself and the department of labor in this case will cancel the registration of the union because it has already been dissolved.

To dissolve a union, there are certain requirements. There must be a general membership meeting, the meeting must be called for that purpose, 2/3 of the employees must approve or agree to the dissolution of the union and the resolution must be reported to the department of labor so that it can be recorded in the roster of legitimate labor organizations so that anyone who wants to inquire as to the status of the union will be informed if the union is still existing or not.

A while ago we discussed that the documentary requirements shall be attested toby the president and certified under oath by the secretary or treasurer of the union. The attestation and certification requirements are also required in merger and consolidation of unions. In merger, one union absorbs the other while in consolidation two or more union merge together forming a new entity. If unions merge and consolidate, there are also certain requirements that must be complied with and all those requirements must be certified under oath by the secretary or treasurer of the union and attested to by the president.

Let us now go to affiliation. If a union does not want to undergo registration, it can affiliate itself with a federation. Now the local chapter becomes a legitimate labor organization or acquires legitimacy upon the issuance of the charter certificate and the submission of the documentary requirements such as the charter certificate, place of business of the local chapter, the names and addresses of the officers of the local chapter and the constitution and by laws. Hence it is the act of submission of all those requirements that makes the union a legitimate labor organization but for the purpose of filing of the petition for certification election, the mere issuance of the charter certificate will suffice. Take note also that he requirements must be attested to by the president and certified under oath by the treasurer or secretary of the union.

Now who can create a local chapter?

Under the law, only a national union or a federation can create a local chapter. A trade union center cannot create a local chapter. A trade union center is a group of federations.

Supposing a union is independently registered, can it affiliate with a federation? Yes it can. There are certain requirements. First, the affiliation of the union must be approved by the majority of the union members and by the board of directors of the union and second the affiliation must be reported to the department of labor.

The relationship between an local union and a federation is that of principal and agent relationship. The principal being the local union and the agent is the federation. It is important to know the relationship for the purpose of determining the liability. For example the local union declares a strike and the management sues the union for damages. Who would be liable? Ofcourse it is the principal. Even if the federation was the one who signs the notice of strike except when the federation exceeded its authority.

Does an independent union lose its legal personality when it affiliates with a federation? Not it does not. Once it is registered, it enjoys legitimacy until the cancellation of its registration. It will be different when it comes to a local chapter because a local chapter does not have its own independent registration.

Can a union disaffiliate with the mother federation? Yes. But it is subject to certain conditions. The disaffiliation must be approved by the majority of the union members and it must be done during the freedom period. Freedom period is 60 days prior to the expiry of the CBA. Once the local union disaffiliates with the mother federation, the relationship is cut off and the federation cannot collect federation dues from the local union. Now what happens with the CBA? The CBA still subsists.

Now lets now go to collective bargaining agent. Now it is not enough that the union is organized for the purpose of collective bargaining it has to be legitimized and the acquisition of legitimate status will not by itself qualify the union for collective bargaining. The union must be certified as the collective bargaining representative.

How is a union certified as a collective bargaining representative? There are two ways. First by voluntary recognition and second is by certification election.

When we say voluntary recognition-it is a process by which a labor organization is acknowledged by the employer as the collective bargaining representative of the employees covered by the collective bargaining unit. Voluntary recognition is proper only when the establishment is unorganized and there is no other legitimate labor

organization within the bargaining unit. If there are two unions within the bargaining unit there must be a certification election.

There are certain requisites that must be complied when it comes to voluntary recognition. First, he union and the employer must execute a sworn statement attesting to the fact that there is voluntary recognition and there is no other legitimate labor organization within the bargaining unit. This sworn statement or affidavit must be posted in 2 conspicuous places in the establishment for a continuos period of 15 days and the parties must send a notice of voluntary recognition with the department of labor. The notice will be recorded in the department of labor. The purpose of that is to be able to record the fact of voluntary recognition in the roster of legitimate labor organizations so that no petition for certification will be recognized for a period of one year from recording of the voluntary recognition. The one year period is reckoned from the recording by the department of labor of the voluntary recognition.

Certification election is the process by which the employees in the bargaining unit selects the bargaining representative. The purpose of this is to know whether the employees desire to be represented by a union and which union they want to represent them. In a certification election, regardless of the number of the participating union, the no union choice is always included. If the no union wins then there is no collective bargaining agent and the significance of which is that no petition for certification election may be filed within a period of one year from the election.

Who can file?

Generally a legitimate labor organization can file a petition for certification election. A federation can also file a petition for certification election for and in behalf of the local chapter who was issued with a charter certificate. Now can the employer file a petition for certification election? Yes if it is requested by the union to bargain collectively. If the employer does not want to recognize the union it can file a petition for certification election so that the employees can decide if they want to be represented by the union or not.

It is required that the petitioner is a legitimate labor organization. A group of employees cannot file a petition for certification election.

The petition for certification should be filed with the regional office where the union operates.

The petition for certification can be filed at any time in unorganized establishments. In organized establishments, it should be filed within the freedom period. In unorganized establishments, the mere filing of the petition for certification election is enough for the med arbiter to order a certification election. In organized establishments the med arbiter can order a certificgation election upon the verified petition of a legitimate labor

organization, within the freedom period and with 25% consent of the employees within the bargaining unit. 25%requirement need not be strictly complied with. It may be less than 25% as long as it is supported by a 25% written consent. If not supported by any written consent, it will be dismissed. If less than 25%, it is discretionary upon the med arbiter.

The purpose of the 25% requirement is to know whether or not the employees would want to hold a certification election. What id the effect when it is withdrawn by the employees? If withdrawn before the filing of the petition then it is as if there was no written consent and the petition should be dismissed. If it is withdrawn after the filing then the petition should be granted. If the withdrawal is before the filing it is presumed voluntary. If after the filing, the employer might have influenced it.

The circumstances that bar the filing of a petition for certification election are:

Contract bar rule- if there is a duly registered collective bargaining agreement, no petition for certification election will be entertained except if it is done within the freedom period.

Deadlock bar rule-no petition for certification election shall be filed if there has been a collective bargaining deadlock to which the incumbent bargaining representative is party and submitted for conciliation and mediation or has been the subject of a valid notice of strike.

Negotiation year bar- no petition for certification election shall be entertained if within one year from the certification election or voluntary recognition, the collective bargaining representative has commenced to negotiate with the employer. Counted from the date of actual election.

July 7, 2013

Labor Organization

Certification election. remember that it is the process by which employees choose their bargaining representative for collective bargaining purposes. the process involves first, the organization of the union, then legitimizing the union, either by registration or affiliation with the mother federation. And after that, the next step is to become a bargaining agent. by voluntary recognition or Cert. election.

We have started discussing the different bars.

Vol. Recog year bar rule- the PCE is barred within 1 year from the time of recording of the voluntarily recognized union in the Registry of LLO. the 1 year period is reckoned from RECORDING by the DOLE in the Registry of Leg. Labor Organization

Election year bar rule. No PCE shall be entertained within 1 year period from the holding of a VALID Cert. election.

Negotiation Year Bar Rule. the Union has 1 year to start the CBA negotiations from CE or VR. NO PCE shall be entertained within 1 year period from the date of election or from the date of VR

Contract Bar Rule. If there is an existing DULY REGISTERED CBA, No PCE shall be entertained except within the freedom period

Deadlock Bar Rule. No PCE shall be entertained when a deadlock, to which an incumbent CBR is a party, has been subjected to conciliation, arbitration or is the subject of a valid notice of strike or lockout. to ensure industrial stability.

in case of a deadlock, the parties may: submit the matter for conciliation or arbitration or the union can declare a strike, or management can declare a lockout.

Certification Election is commence by the filing of a petition by a LLO or by a federation in behalf of its local chapter in which it has been issued a charter certificate or by the employer when requested to bargain collectively. there may be instance where the union parties agree to conduct a certification election. if that happens, the Med-arbiter will no longer order a certification election, instead, the party will agree to the date of the election and post the notice of election in the establishment. If the parties did not agree, then, the med-arbiter did not agree, then the med-arbiter will order a CE.

There may be instance when interested union will have to intervene in the certification proceedings, it can do so by filing a motion for intervention. If the Petition is filed by another union, the incumbent bargaining union will be automatically become an automatic intervenor. In every Certification Election, the Choice is always within the union and No union. example, when the petition was filed by union X, then the choices will be Union X and No union. Suppose there are two or more intervenors. Then the choice will be union X, Union Y, Union Z, and No union, SO the no union will always be a choice in a certification election. When should a motion for intervention be filed. distinguish, In an UNORGANIZED establishment, the M. for intervention can be filed any time prior to the decision of med-arbiter. In ORGANIZED establishment, the motion can be filed only during the freedom period.

There can be instances when suspension of the Certification Proceedings is warranted. Example is when there is a pending ULP cases charging one of the contending union as company dominated. for example, Union X file a PCE, then Union Y filed a motion for intervention, simultaneously, Union Y charged the management and Union X with ULP

as company dominated. if that happens, the Certification Proceeding shall be Suspended, in which you should ask a motion to suspend the certification proceedings because the filing a ULP case involving company dominated union is a prejudicial question. because it may lead to a selection of a union that is company dominated and if that happens, the certification election shall be rendered useless. another certification election will have to be conducted.

Another instance when a certification election may be suspended is when there is a pending Petition for cancellation of one of the contending union. In this situation the matter whether the certification election will be suspended is a matter of discretion on the part of the Med-arbiter. if you recall, the mere pendency of a petition for cancellation does not strip the labor organization of his legitimacy. Only the final order of cancellation will strip the Labor organization of his legitimacy or legal personality. If the Med-arbiter denies the suspension, it will not amount to a grave abuse of discretion.

There may also be instances when the filing of motion to dismiss the petition is warranted. example, if there is no Employer-employee relationship between the petitioning union and the management. in this case, motion to dismiss is warranted because only employees can bargain to the employer. It can be illustrated this in a contracting or subcontracting. in some companies which is engage in contracting. It must be remembered that the employees of the contractor remains the employees of the contractor. if the employees of the contractor believed that they were employees of the principal, and file a PCE, the Principal may file a motion to dismiss the petition because there is no employer-employee relationship between the employees of the contractor and the principal.

another ground for dismissal is lack of legitimacy on the part of the petitioning union. lack of legitimacy because it is not registered as a LLO or his registration has been cancelled with finality.

PCE may also be dismissed on the ground that there is lack of written consent of 25% of the employee. and the other grounds are the "bar rules".

in a certification election, there are certain matters which the med-arbiter cannot decide. first is the validity of the registration of the union except if the union is IN FACT not registered in the roster of LLO and you could easily prove that getting a certification to the DOLE that the union is not registered. but if the union is in fact registered but it was able to obtain its registration through fraudulent deeds or despite the deficiency of the supporting documents, the med-arbiter cannot prove on the validity of the registration.

Another point that the med-arbiter cannot decide is the validity of the CBA, except when the CBA is not registered in the registry of CBA. so if the CBA is duly registered. the Med-arbiter cannot render decision as to whether the CBA is duly registered. However matters pertaining to the existence or non-existence of the Employer-employee relation

is within his jurisdiction to decide. also issues pertaining the validity of an employee becoming a union member is also within the jurisdiction of the med arbiter to decide. example, when the manager or supervisor became a member of a union, the med- arbiter has the jurisdiction over such case.

after the issuance of the order for the election, the matter shall be submitted pre- election conference for the parties to decide the date of election and other matters. but before the certification election can be conducted, notice of election must be posted in conspicuous places in the establishment. this is a mandatory requirement. a certification election without notice is null and void. particularly if majority of the covered employees were unable to vote due to lack of notice.

who are qualified to vote in the PCE? is it the union members? or the employees covered by the bargaining unit? remember that in collective bargaining, the CBR represents not only the members of the union. it represents the entire bargaining unit. if you will recall that in the bargaining unit they are not only those who are union members, there may be some employees who does not want to be a union member but is still covered in a bargaining unit. So in the Certification Election, All employees covered by the bargaining unit whether union members or not are qualified to vote. even probationary employees can vote. strikers can vote in a cert. election because during a strike, the employment relationship subsists. strikes does not cut off employment relationship. even members of religious sect that prohibits its members to join a union can also vote in a cert. election. A dismissed employee. can they also vote? you have to distinguish. if the employee file a complaint for illegal dismissal and the complaint has not been decided with finality, then they are entitled to vote, but their votes are segregated. If the employees did not file a complaint, then for all intents and purposes, the employment relationship is cut off and they are disqualified to vote in a certification election.

During the election, the voter can also be challenged either by the contending union or by the management. on the ground that the voter is not an employee of the company or the voter is not covered by the bargaining unit. or has been dismissed from the company without the illegal dismissal being filed. what happens if the votes cast is less than the number of eligible voters. if the number of the votes cast is less than the majority of eligible voters, then there is failure of election.

what happens when failure of election is declared? the interested party may file a motion of a holding a election within 6 months from the declaration of failure of election. in order to have a valid election, at least majority of the eligible voters must have cast their votes.

Run off election. A run off election is possible only when the certification election has at least 3 choices. so if the Cert. Election has at least 3 choices but no union obtained a majority of valid votes cast, and the total number of votes for all the contending union is at least 50% of the number of votes cast. then a run off election can be conducted. so

remember the requirement for the run off election. so there can be no run off election when there is only two choices. now who can participate in a run off election. the two unions acquiring the highest votes shall participate in the run off election. No union will no longer be a participant in a run off election

In a cert. election, the Employer is considered as a bystander. this is the bystander principle. it is the general rule, there are certain cases where the employer can actively participate in the cert. election. example, when there is no employer-employee relationship the Employer can file a motion to dismiss the Cert. Election. The bystander principle will not apply. also when the bargaining representative sought to be represented by the union is not an appropriate bargaining union, the employer can also file a motion to dismiss. How can there be an inappropriate bargaining unit? one example is when the bargaining unit is composed of a mixture of supervisory and rank and file employees. Also if the union that files the Certification election is not a LLO the Employer may ask for the dismissal of the petition notwithstanding the bystander principle. If the petition is not supported by 25 % requirement. and if there is a contract bar, negotiation year bar rule, or other bars, even if he is considered as a bystander.

can an order in the PCE be appealed? distinguish, in UNORGANIZED, an order GRANTING the PCE is not appealable. How about in ORGANIZED establishment? an order granting or dismissing the PCE is appealable to the Sec. of Labor within 10 days. how about in UNORGANIZED establishment, can a decision ordering the dismissal of the petition be appealed? yes. so only the orders granting the PCE in the unorganized establishment is not appealable.

Collective bargaining practice. after voluntary recognition or certification election. the next step for the union to send its CBR's collective bargaining proposal, the duty to initiate the collective bargaining negotiation is upon the union. the management has no duty to initiate collective bargaining negotiation. once the union submit its collective bargaining proposal, the management must then submit its counter proposal. under the law, it has 10 days. but that is not a mandatory requirement. as long as the employer does not ignore the counter proposal, there is no violation of duty to bargain collectively. The CBA must be Ratified because the union is merely an agent. so the agreement entered into must be ratified by the bargaining unit. the majority of the members of the bargaining unit is required. but prior to the ratification, the CBA must be posted in two conspicuous places, that is a mandatory requirement. if it would be found out that the CBA has not been posted prior to ratification the CBA will not be registered. after ratification, comes the registration. this is to bar the filing of PCE within 5 years to ensure industrial peace.

Now is the CBA not registered valid? yes. an unregistered CBA is valid to the parties. the only purpose of registration is to bar the filing of PCE. and who will administer the CBA? the management and the employees will administer jointly. the CBA will apply not only to its union members but also to non union members as well as long as they are covered

by the bargaining unit. what will be the term of the CBA? under the law, in so far as the representation aspect is concerned is 5 years. Representation aspect means the authority of the bargaining rep. to represent the bargaining unit. no union can challenge the majority representation of the CBR for the next 5 years except during the freedom period. this is to prevent the unwarranted practices before of calling union trading?

can the CBA be renegotiated during the 5 year period? yes. the only thing that cannot be done is to challenge the majority representation of the incumbent bargaining agent. in what aspect can be renegotiation? both the economic and non-economic provisions of the CBA.

What then is the effectivity of the renegotiated CBA? there are 3 situations. first. if the parties arrived at an agreement within 6 months from the expiry date of the 3rd year. the effectivity date shall retroact from the expiry date of the CBA. suppose the parties were not able to arrived into an agreement within 6 months? the effectivity of the CBA shall be determined by the parties. suppose the parties were not able to agree and deadlock was submitted to arbitration? the effectivity date shall be from the finality of the decision of the arbitration. Can the parties agree to suspend the CBA? according to the case of PAL, Yes. but take note that the suspension should be done by the employees within the bargaining unit itself and not only by the bargaining representative.

UNION SECURITY. it is a stipulation which requires union membership as a condition for continued employment. the common types are, closed shop, union shop and maintenance of membership. what's the difference? in a closed shop, the employer binds itself to hire only those who are members of the union. if the employee does not or refuses to join the union, the union may recommend that the employee be dismissed or refuse the hiring of the applicant. but if the refusal is based on religious ground, then the closed shop agreement will not apply. because religious freedom is higher in rank than contractual obligations. how does closed shop agreemnet differ from a union shop? in a union shop stipulation, the employer can hire non union members but the employee must, within the given period, join the union, and must maintain his employment in good standing. Maintenance of membership, it means that those who are already a member of a union at the time of the signing of the CBA should remain members of the union in good standing as a condition for continued employment. under this situation where there is union security clause in the CBA, does it mean that union members can no longer resign from the union? they can, but only during the freedom period.

Levy of Special Assesments. A labor organization can validly levy special assessments on extra ordinary fees only when the general membership so approves. the union must call a general membership meeting for the purpose of determining whether the union members would want to approve the levy of special assessments. and during the GENERAL, as distinguish from local, membership meeting, majority of the member

employees must express their conformity to the levy of special assessments and aside from that, the Secretary of the union should prepare the minutes of the meeting including the members present, the votes cast and the purpose of the special assessments. IF the special assessment was obtained during the local membership meeting, it will be invalid. or it was made by a resolution of the board of the union. it will also be invalid.

Check-off. it is a method of deduction. it is a common provision of CBA, it is a method of deducting the salary. in order to be valid, it must be supported by an INDIVIDUAL written check off authorization from the employee, duly signed by the employee, and the authorization must specifically state the amount and purpose of deduction, including the beneficiary of the deduction. take not the word INDIVIDUAL WRITTEN authorization. hindi pwede ung isang written authorization tpos magsasign lahat. what will happen if the employer will deduct fees assessments or dues to the salary of the employee without any authorization? the employer shall be liable for illegal deduction.

there are instances when individual authorization is not required. 1st is those which are mandatory activities under the labor code. what are those mandatory activities? labor education. in this case, individual written authorization is not enough. another instance is deduction of AGENCY fee? and who are those employees who will be deducted with agency fees? to non-union members covered by the bargaining units who accept benefits under the CBA. If the non union member does not want to accept the benefits under the CBA, it cannot be assessed with any agency fee. when it comes to agency fees, no written authorization is required. how about union dues? does it need written authorization? YES. it needs INDIVIDUAL written authorization.

Grievance, when we say grievance, it is a dispute between employees and employers with respect to interpretation and implementation of the CBA or company personnel policies. the inclusion of grievance machineries in a CBA is a mandatory requirement. if there is no grivence machineries, it will not be registered. violation of CBA? would it be considered as grievance? distinguish. if the violation is gross, it would be a ULP. so what does GROSS violation means? it is a flagrant or malicious breach of the economic provisions of the CBA. How about violations that are not gross? under the law, it will be considered as an ordinary grievance. suppose the grievance was not settled? the next step is voluntary arbitration. who can be a voluntary arbitrator? anybody as long as the parties select him as voluntary arbitrator.

What is the jurisdiction of the Voluntary Arbitrator? there is an Unresolved grievances arising from interpretation and implementation of the CBA or company personnel policies. second, wage distortion disputes in ORGANIZED establishment. if unorganized establishments, there is no CBA, thus no grievance machineries. it is under the jurisdiction of the Labor arbiter. how will you delineate the jurisiction of Voluntary Arbitrator over termination disputes from the jurisdiction of Labor arbiter over termination disputes? distinction lies in this. if the termination disputes is still in the

implementation stage of the CBA or Company personnel policies, then it is within the jurisdiction of Voluntary arbitrators. However, if there is already actual dismissal, in which case, the jurisdiction will now fall to the Labor arbiter. You should also distinguish Personnel policies from disciplinary rules. interpretation and implementation of disciplinary rules will fall under the jurisdiction of the Labor arbiter because disciplinary rules are punitive in character whereas Personnel Policies are non-punitive.

July 23, 2013

Summary of CBA and Strikes Collective bargaining involves union-management relations When we say union it is intertwined with organization. The very first thing we discussed is right to self organization.

Right to Self Organization Right granted to EE to form either: 1. Workers Association (WA) for the purpose of mutual aid and protection 2. Labor Organization (LO) for purpose of collective bargaining

1. ORGANIZE When we say LO, the very first thing to be done when the union desires to collectively bargain is to organize itself to an organization, union.

Then the next thing to do is legitimize it. A union which is not a LO cannot enter into a CBA. It can be legitimized in 2 ways. 1) Registration and 2) Affiliation with a federation. A federation is a LO with atleast 10 chapters each of which is collective bargaining agent in the establishment.

2. REGISTRATION Union acquires personality upon issuance of the Certificate of Registration How about in the case of local chapter, when does it acquire legal personality? By issuance of charter certificate and submission of the documentary requirements to DOLE like the names of its officers, consti and by laws. But for purposes of filing of Petition for Certification Election, the mere issuance of charter certificate will suffice. In short as long as the local chapter has already been issued charter certificate it can file a petition of certification election (PCE) even if other doc reqs has not yet been submitted to DOLE. Mere issuance of charter certificate will not entitle local chapter to exercise all the right granted to LLO. They can only do so when all the doc reqs has already been submitted.

A. VOLUNTARY RECOGNITION It is a request to bargain collectively or request for recognition. If that happens the mgmt has 2 options. Either to recognize or to file a PCE. Remember ER can file a PCE when a union requested to bargain collectively. Request to sit down and bargain is a

demand to bargain collectively. If the mgmt does not want to recognize the union and wants to throw the matter to EEs themselves, they can file for PCE.

If the mgmt decides to VR, both parties must execute a sworn statement attesting to the fact that there is no other union in the company and the union has been recognized. VR is available only when the establishment is unorganized. So there is no other LO organization operating in the BU. Proper only when the establishment is unorganized and no other LO operating in the bargaining unit.

If there is supervisors union but there is none in Rank and file (RF) it is still unorganized with respect to RF. B. CERTFICATION ELECTION

Who can file a PCE? 1. LLO 2. Federation if the one who issued charter certificate. in behalf of the local chapter who has been issued charter certificate. Local charter is considered LLO when filing PCE upon issuance of Charter cert 3. ER when it is requested to bargain collectively, if no request ER can file a petition

When can PCE be filed? Distinguish establishment if organized or unorganized. In unorganized the PCE can be filed anytime. If organized, only during freedom period.

When the union has been accorded VR, a CE is barred within 1 year from recording in the roster of LLO. Remember in VR, mgmt and union must make an sworn statement, affidavit, attesting to the fact of recognition and no other LO operating in the establishment. Must be posted in 2 conspicuous places in the establishment. The parties should file a notice of VR for the purpose of having the VR recognition recorded in the roster of LLO.

What is the effect of registration? CE will be barred for a period of 1year from recording. That is VR bar rule. The rule states that no PCE can be entertained within 1 year from recording of VR.

If union obtains his status as bargaining agent through registration, there is 1 year period where PCE can be barred. That is what we called ELECTION YEAR bar rule. The rule states that no PCE can be entertained within 1 year after a valid election.

How about if there is Failure of Elec? The contending union can file PCE within 6months. If there was valid election, the bar is 1 year period.

3. CBA Negotiations

2 things can happen here. First is deadlock. If there is deadlock in negotiation there are 3 options available to the parties. 1. Submit issue to conciliation 2. arbitration 3. union can declare a strike, mgt can declare Lockout

When does deadlock bar rule come in? it is not just the deadlock. It says that no PCE can be entertained when the deadlock, bargaining agent and ER has been subject to conciliation, arbitration or subject to valid notice of strike or lockout. That is what we call deadlock bar rule.

If the parties agree to terms of CBA, it is signed. Who signs the CBA? Officers of union and representatives of mgmt. Is it enough that CBA has been signed by officers? It must be ratified. Ratified by whom? Not just by union but by all EEs covered by bargaining unit (BU). CBagent is an agent. In the laws of agency, it must be ratified by the principal and the principal here are the EEs covered by the BU.

Prior to ratification, it is mandatory to post the CBA in 2 conspicuous places in the establishment. CBA is deemed ratifies when majority of the BU gives their approval to the terms of CBA.

4. Register CBA Purpose: Bar a CE. Contract bar rule says that no PCE shall be entertained when there is a duly registered CBA except during freedom period, 60 days prior to expiration of CBA.

That is summary of CB process

Strikes Temporary stoppage of work as a result of labor dispute To constitute a strike there must be concerted stoppage of work which must be temporary as a result of labor dispute. Without labor dispute, it would not amount to strike.

Case: 1. ALPAP vs CIR (page 364) -There is no strike because there is permanent termination of work. 2. PBMEO vs Phil Blooming mills (page 365) -No labor dispute because the protest is against police abuses 3. Byflex-They joined welga ng bayan. SC held that there is a strike, in sympathy with the other groups.

Not all EEs are granted the right to strike

There are certain limits. Right to strike is not absolute

1. NO labor union can strike without bargaining collectively. What does this mean? After the union is certified or recognized as bargaining agent the next thing to do is negotiate CBA with mgmt. If instead of negotiating the union declares a strike for the ER to force to give in to their demands then the strike is illegal. Under Art 264.

2. The union can not strike without filing a notice of strike. It cannot just stop working and declare a strike without filing a notice with NCMB. The purpose is to provide opportunity for conciliation and mediation. When the notice of strike is filed, it depends upon the ground. If the ground is ULP must be filed 15 days before the intended strike. If the ground is CBA deadlock the filing of notice must be 30 days before the intended strike.

Strike is temporary stoppage of work. Yung nakikita niyo placards marching to and fro it is not a strike, because a strike can occur even without placards. It is the concerted stoppage of work. It could be in the form of sitdown strike, it is just doing nothing. They report to work and do nothing. Also it could be slow down which means EE retard production. But also take the form of mass leave. Yung sabay sabay nag leave. That is a strike because mass leave is tantamount of stoppage of work. Wild cat strike is illegal.

There are certain requisites that must be complied with to have a valid strike. 1. It must be staged by LLO or by certified or recognized CBAgent

So in a particular company if there is a certified CBAgent in a company, only it can declare a strike.

Suppose an establishment has no CBAgent, can the EE strike? Yes, as long as there is LLO. In short in the absence of CBAgent, any LLO can strike. The situation takes place before the VR or before the CE. Because in that illustration there is LLO but not yet recognized as CBAgent. But once the LLO is recognized it can already declare a strike.

2. It must be staged on grounds specified by law 3. It must comply with the requirements prescribed by law 4. It must be for lawful purpose and carried through lawful means

Who can declare a strike? The answer is only a Certified or duly recognized CBAgent can declare a strike whether based on ULP or CBA deadlock. If there is no certified or duly recognized CBAgent, any LLO can declare a strike but only on the ground of ULP.

Can a union which is not yet declared or recognized CBAgent declare a strike? Yes. But only on the ground of ULP because there are only 2 grounds for strike. ULP and CBA

deadlock. A strike declared on any other ground is illegal. Before a union can declare a strike it must comply with certain legal requirements. 1. File a notice of strike before NCMB 2. decision to declare a strike must be made by Majority of union members through a strike vote 3. Strike vote to be submitted to NCMB. All reqs are mandatory. Failure to comply with one renders the strike illegal.

Why is it necessary to file Notice? To give opportunity for conciliation and mediation. In practice whenever a notice of strike is filed, the NCMB summons the parties to appear before it and then ND there ways and means to settle is . Once notice of strike is filed, you have to depend upon the ground of the strike. If ULP, notice of strike should be filed 15days before the intended strike. If on the ground of CBA deadlock, it must be filed 30days before the intended strike. During this 15 or 30 day period, the union cannot strike. It can only perform ways and means to settle. This 15 0r 30day period is actually the COOLING OFF period. There are certain instances where cooling off period may be dispensed with. When the dispute pertains to ULP involving the dismissal of union officers to the point the existence of union is threatened. It is called union busting. They can strike without serving the cooling period. They are still obliged to file a notice of strike, strike vote of majority must be obtained and strike vote reports must be submitted to NCMB. They must still comply with all the other legal requirements.

Who decides whether to go on strike or not? Unlike in CE when members of BU vote who should be their Bargaining agent, in strike, only the union members vote in a strike balloting. If the majority of union members vote to strike, then they can go on strike. If majority of the union members do not express their approval, they should respect the wish of their members.

Having obtained the strike vote, the next requirement is to submit their strike votes to NCMB within 7days before the intended strike. During this 7days period, the union cannot strike.

(Board illustration)

Let us assume the notice of strike was filed on Jan1. And the ground for strike is ULP, then we have 15days cooling off period. Suppose the union intended to strike on Jan 15, they decide to have a strike on Jan1. But there must still have requirements that they have to comply like strike vote. Suppose the strike vote report is submitted on Jan 12. It must be on this point where the union can strike. Notwithstanding the fact the union intended to have their strike on Jan15 it cannot have a strike because they must still observe the 7day strike ban.

Suppose the strike vote report is submitted on Jan 7, the 7 day period coincided with Jan 15. In this case, the union can strike on Jan 15. If the 7day period is coincided with the intended strike, then they can strike on Jan15. Otherwise, the union can not strike on Jan15 (must still observe the 7day strike ban)

It may happen also during the conciliation proceeding during the cooling off period that the mgmt will present an improved offer. For example, prior to the deadlock the mgmt offer 500php increase in wages then during the conciliation proceedings the mgmt offered an additional 100php. What will happen? NCMB will conduct an improved offer balloting. The issue will be thrown back to the general membership of the union, whether they accept the improved offer. There will be a referendum whether they accept it or reject the improved offer of mgmt. If majority votes to accept the improved offer, then the strikes end. The union can no longer strike.

What happens to EM status of strikers? Do they lose EM status during strike? No. The strike is not a means to severe EM relation. The EM status of strikers continue during strike. It is not considered abandonment of the EM status.

What if the strike ends, what will happen to the strikers? Under the current doctrine, strikers are entitled to readmission. Except, when the strike is illegal in which case the union officers may be denied readmission. Or in cases where the strike is attended with violence or illegal acts, strikers who committed illegal acts may not be readmitted. They may be declares to have lost their EM status. If strike is illegal, only union officers can be declared to have lost their EM status. In cases where strike is attended with violence, any striker, whether officer or member who committed illegal acts can be declared to have lost their EM status.

SOLE orders strikers to return to work. What happens if strikers refuse to return to work? If strikers defied RTW order they can still be declared to have lost their EM status, they may be dismissed. Including all members who defied the RTW. Remember the strike of PAL pilots. The orders were received by them but did not report to work. All of them are dismissed, defying RTW order.

Categories of Illegal Strike

1. Violation of specific prohibition of law

Examples are strikes staged by EE performing government functions, by managerial, on grounds of intra and inter union dispute under Art 263, on grounds other than CBA deadlock or ULP

2. Violation of specific requirement of law

3. Declared for unlawful purpose

4. Declared for Unlawful means

5. Violation of existing injunction

6. Violation of existing agreement

July 30, 2013

When you say strike, you say temporary stoppage of work as a result of a labor dispute.

It has three elements: (1) temporary stoppage of work; (2) duly concerted actions of employees; (3) as a result of a labor dispute.

If the employees resign enmasse there is no strike because the stoppage of work is not temporary. The strike or the stoppage of work is temporary. Slowdown is also a temporary deprivation of work.

Another important element is labor dispute - the stoppage of work must be a result of a labor dispute, without a labor dispute stoppage of work cannot be considered as strike.

In the case of Philippine Blooming Mills, the employees stopped working to join the protest against the police abuses. It was said that there was no strike.

However in the case of Baron, the employees will join the "welgang bayan" were considered to be a strike although the employees did not have any labor dispute with their employer their act of joining the "welgang bayan" was considered as a strike because a "welgang bayan" is considered as a general strike and the employees who joined the general strike are deemed to be in sympathy with the general strike. In short, what was staged was a sympathy strike.

So that distinguishes the Philippine Blooming Mills case with the Baron case. In PBM, the employees who joined the mass demonstration in protest for the police abuses was declared that there was no strike because there was no labor dispute between the employees and the employers.

The right to strike has its own limitation - it is not an absolute right.

First limitation, the union cannot strike without first bargaining collectively. After the union is certified or recognized as a bargaining agent the next thing that it should do is to bargaining collectively with the employer by sending its bargaining proposal and start negotiations. However, if after being certified as the bargaining agent and after demanding several times the employer disregards the union declares a strike to force the employer to agree to their demands then that is a legal strike.

The union cannot just declare a strike. It has to first file a notice of strike that is a mandatory requirement. The purpose of this is to give the parties the opportunity to settle. That is why the law says that the notice of strike should be filed 15 days before

the intended strike if the ground is for unfair labor practice or 30 days before the intended strike if the ground is for a CBA deadlock. You have to exhaust the 15 days or 30 days before a strike can be staged and you cannot strike within the 15-day or 30-day period. Within that 15 day or 30 day period, that is what is called the cooling-off period this the time when the National Conciliation Board performs to call the parties for the purpose of discussing or ways or means of settling their disputes. You noticed that there are only two periods the reason is because there are only two grounds for a strike: (1) unfair labor practice and (2) CBA deadlock. Outside of those two grounds, the union cannot declare a strike. So the union cannot declare a strike in case of inter-union or intra-union disputes that is expressly prohibited by law.

Who can declare a strike? Only a legitimate labor organization can declare a strike and that LLO must be the collective bargaining agent. So it is not enough for you to say that only legitimate labor organization can declare a strike, but it should also be the collective bargaining agent.

But in certain circumstances any legitimate labor union can declare a strike but only on the ground of unfair labor practice. Because if there is no collective bargaining agent necessarily there is no or there can be no CBA deadlock because the union is not yet recognized or certified as a collective bargaining agent cannot negotiate a CBA therefore it would be impossible for it to have a CBA deadlock. But when it comes to deadlock in CBA negotiations, only a legitimate labor union, which is the certified agent, can declare a strike.

Aside from the notice of strike, there are two other mandatory requirements mentioned by the law. First is the strike vote and the second is the strike vote report. The union, which decides on whether to go on strike, the union members themselves who will decide whether to strike. This is done by calling a general membership meeting among the union members and during that meeting the members will vote by secret ballot whether they will go on strike or not. If the majority of the union members vote for the strike, then the union may stage a strike after it has submitted the strike vote report to the National Conciliation and Mediation Board. So it is not enough for the union to file a notice of strike or to get a strike vote. It is also required that the results of the strike vote balloting be submitted to the NCMB within 7 days. Within the 7-day period, the union cannot strike. That is called the 7-day strike ban. The 7-day period may coincide with the 15-day or 30-day cooling of period as long as the strike vote was submitted 7 days before the start of the 15-day or 30-day period - then it may coincide with the cooling off period. But if for example the strike vote is submitted on the last day of the cooling of period you still have to wait for 7 days after submission to the NCMB before you can declare as strike. If the union strikes without observing the 7-day strike ban, the strike will be illegal even if the cooling-off period has expired.

A strike declared without the notice of strike or without the strike vote or without observing the 7-day strike ban is an illegal strike.

What would be the effect if the strike is declared illegal? Our rule is that the union officers who knowingly participated in the illegal strike will be deemed to have lost their employment status, in short they are deemed dismissed from employment. If the issue is ULP the cooling-off period is 15 days so you have to file your notice of strike 15 days before the date intended strike. Under certain circumstances, the 15-day cooling off period need not be observed - if the issue pertains to an unfair labor practice where the existence of the union is threatened because of the dismissal of the duly elected union officers. If this is present, the union may strike without observing the cooling off period. But take note that despite the fact that the union need not observe the cooling off period they are still required to submit a notice of strike and to conduct a strike vote balloting and to submit the strike vote report. It still has to observe the requisites of a strike.

So remember, the union cannot immediately declare a strike just because it has already obtained the consent of the majority of the union members. It still has to submit a strike vote report.

The strike is destructive in nature because it paralyzes the operation of the company and the management will surely incur damages. Who could be liable for the damages incurred during an illegal strike - is it the local union or the federation? The relationship between the local union and the federation is principal-agent. The local union is the principal and the federation is the agent. So therefore, the liability for the damages will devolve upon the principal and that is the local union and hold true even if the federation was the one who signed the notice of strike. It is always the principal who will be held liable for the damages. If the federation exceed its authority like for example it proceeded to strike even without yet the consent of the local union.

What would be the effect of an illegal strike? Under the law, if the strike is found to be illegal the union officers may be declared to have lost their employment status or in short they will be dismissed. So there is no dismissal of the strikers even if the strike is declared illegal only the officers will be deemed dismissed. But it is different if the strike whether legal or illegal if it is attended with illegal acts such as violence, sabotage and other illegal acts. In this case, not only will the union officers will be deemed to have lost their employment status but also the plain union members who committed illegal acts. Take note of those things that when the strike is declared illegal only the union officers who knowingly participate in the illegal strike will be deemed to have lost their employment status. But in the commission of illegal acts in a strike anybody whether officer or member will be declared to have lost their employment status. The same holds true if the strikers defy a return-to-work order, not only the officers but also the members or strikers who defy a return-to-work order will be deemed to have lost their employment status. Defiance of a return-to-work order is an illegal act and under the law whoever makes defiance of the order will be deemed to have lost their employment.

Can a strike be enjoined or can injunction issue against a strike? General rule, a strike cannot be enjoined even if it will appear to be illegal because a strike is a right guaranteed by law. But there are situations where an injunction may properly issue against a strike. And what are does situations? First is when the strike is declared against an industry indispensable to national interest. Second is if the strike was declared by employees who are not accorded the right to strike. Government employees or managerial employees cannot strike because they do not have collective bargaining rights. Whenever the managerial employees cannot form a labor organization and bargain collectively so there will be no instance where they can strike on the ground of CBA deadlock because there is no CBA to speak of and they are forbidden to negotiate for CBA with the employers. So if managerial employees declare a strike, that strike can be enjoined through an injunction. Also when a strike is declared on the grounds other than those prescribed by law, so if a strike is declared outside of that two grounds the strike may be enjoined. For example the union will strike only on the ground of inter- union or intra-union disputes, injunction may very well issue.

Who can issue injunction? If the strike was declared against an industry indispensable to the national interest only the SOLE can issue the injunction. On the other hand, if the strike was staged by employees who are not accorded the right to strike or if the strike was declared outside the grounds declared by law, the injunction can be issued by the NLRC. Regular courts cannot issue injunction against a strike because they have no jurisdiction over labor disputes.

Supposing the strike was attended with violence and other illegal acts, then the strikers obstruct the entrance and exit of the establishment can the employer summarily remove those obstructions? The answer is no. Even if the entrance and exit to the establishment was blocked with boulders and placards the employer cannot just remove those obstructions. To enable the employer to remove those obstructions it has to file a petition for injunction with the NLRC.

On the other hand, if obstruction is formed in the public thoroughfare for example on the street or on the sidewalk - the authorities can remove those obstructions because they are considered as nuisance.

Let us now go to picketing, picketing is just the marching to and fro of the employees carrying placards to express their sentiments against the employer. Picketing is not a strike because there is no stoppage of work. When you see workers carrying placards in front of the establishment during their lunch break that is not a strike but a simple picketing. There are some employers who file a petition to declare the strike illegal who picket during lunchtime. If you encounter that situation you can ask for the dismissal of the petition because there was no stoppage of work. So there can be no illegal strike, it is the right of the citizen whether an employee or not to picket without being subject to sanctions because it is part of the freedom of speech. But then, the right to picketing is

not absolute. Under the law, it is prohibited to picket by obstructing the means to ingress or egress of the establishment. The picket should be moving and it should not obstruct the entrance and exit. So if it is moving, anybody can go in and out of the premises whether they the employees or customers of the establishment are not being prevented within the premises. The moment they obstruct the ingress or egress it becomes illegal. They cannot even obstruct public thoroughfares and they cannot also commit violence during picket.

Can picketing be enjoined or can an injunction issue against picketing? The answer is no because picketing is part of the freedom of speech, however, under certain circumstances the picket may be enjoined in order to protect the innocent bystanders or if it is set-up thru illegal means or is attended with violence or illegal acts. Sometimes there are establishments located in a single compound or building sometimes their picket will cover the entire compound thereby making it appear that all the establishments in the compound have labor disputes with the picketers. Those who do not have dispute with the picketing employees then they can ask for injunction to limit the area where the picket will be done in the establishment where they have labor disputes. That is the innocent bystander doctrine.

Lockout is just the opposite of strike. Strike is for the employees while lockout is for the employers. The requirements and grounds are the same. When we say lockout, it is the temporary refusal of the employer to furnish work as a result of a labor dispute. In a lockout, the employer bars the union members from work and they are not given work because of a labor dispute.

Lockout should be distinguished from shutdown. In shutdown, the plant totally stops from work whereas in lockout the plant is still open for non-union members to continue to work only union members are not allowed to work. When the company temporarily closes down its operation because of lack of work or lack of raw materials that is not deemed to be as a lockout because there is no labor dispute involved. The closure may be temporary but there is no labor dispute because the temporary closure was for lack of work or lack of raw materials there is no lockout. Similarly, if the employer closes down its business permanently that is not called a lockout. So even if there is a labor dispute involved but the closure was permanent, the employer decided to close down its business because of the labor dispute there is no lockout because the closure is permanent. It is the prerogative of the employer to close down because it can always close down its business whether or not there is a labor dispute.

As in the case of a strike, the legal grounds for lockout are (1) unfair labor practice and (2) CBA deadlock. You will recall that it is not only the employer who may be guilty for unfair labor practice also a labor organization can also commit ULP that is why an employer can declare a lockout against a labor union who commits unfair labor practice.

Also the mandatory requirements are notice of lockout, lockout vote and lockout vote report. The notice of lockout shall be filed 15 days before the intended lockout if the ground is unfair labor practice or 30 days before the intended lockout if the ground is CBA deadlock.

Who will determine whether or not a lockout? If the establishment is a corporation, the board of directors will decide whether to lockout or not and if the majority of the board of directors decide or vote to lockout then the employer can already declare a lockout but again subject to 7-day lockout ban because the employer is still obliged to submit the lockout vote report to the NCMB within 7 days. If the employer does not comply with all those requirements the lockout will be illegal.

What will happen if the lockout is declared illegal? The employer will be held liable for past wages during the period of lockout. Now if the establishment is a partnership, the partners themselves will determine whether to lockout. If the majority of the partners vote for a lockout then it can declare a lockout subject to the lockout requirements.

Strikes or lockouts against industries indispensable to national interest - under the law, when in the field of SOLE there exist a labor dispute that is causing or is likely to cause a strike or lockout in an industry indispensable to national interest the SOLE may assume jurisdiction over the dispute or certify it to the NLRC for compulsory arbitration. Take note that the law does not define what an industry indispensable to national interest is. It leaves to the SOLE the discretion to determine what an industry indispensable to national interest is. So when the SOLE says that this particular establishment is an industry indispensable to national interest then that is binding upon the courts. Take note that the opening sentence in the law is "when in his opinion" this means that it is the opinion of the SOLE that a particular industry is an indispensable industry then it becomes binding. Under the salient provision, the SOLE is given the power to assume jurisdiction over the labor dispute or to certify the labor dispute to NLRC for compulsory arbitration. When the SOLE assumes jurisdiction it will render the decision on the topic. And the powers of the SOLE if the national interest is so true that it embraces or encompasses all the claims under the jurisdiction of the labor arbiter. So all related cases which may be pending with the LA and the NLRC are to be consolidated with the claims before the SOLE. All related disputes must be consolidated.

What could be the effect if the SOLE assumes jurisdiction over labor disputes or if he certifies it to NLRC for compulsory arbitration? As expressly provided for the law, when the SOLE assumes jurisdiction over a labor dispute or it certifies the labor dispute to the NLRC for arbitration a strike whether actual or impending is tolled. Any intended strike is barred. If an actual strike has already taken place the strikers are already prohibited to attend to their strike. When you feel that your company is an industry indispensable to national interest after the filing of the notice of strike you file a petition for the assumption of jurisdiction or petition to certify the labor dispute for compulsory arbitration. On the basis of that petition the SOLE may or may not issue and order

assuming jurisdiction or certifying the case. If he issues an order assuming jurisdiction or certifies the case for arbitration the effect is the union cannot strike and the employer cannot declare a lockout the strikers must withdraw today upon the assumption order they have to return to work - it is automatic. The assumption order or the certification order carries with it a return-to-work order even when it is not specified in the order itself. So, once the union receives the certification order or the assumption order the strikers must return to work even if a motion for reconsideration has been filed. In short, the assumption or certification order is immediately executory even when the union or the management files a motion for reconsideration. And if the strikers did not return to work they will be declared to have lost their employment status. When you get an assumption order from the SOLE and the order was served to the employer or the union the sheriff or bailiff carried the order but nobody answered because they were informed that the assumption will be served. So time when the order has to be served thru the door and the paper was moving so may tao sa loob and then after a few minutes of waiting bumalik ung papel. The sheriff made a report on the matter the SOLE declared that there was no constructive service. But even then the SOLE was tolerant and still summoned the parties to a conference but during the conference the lawyer did not appear only the officers of the union and when the order was again to be served to the officer of the union and we waited for 2 hours, wala then the officers refused to receive the order, this time the SOLE declared that there was a constructive service of the order and because the by-laws did not comply with the assumption order or the return-to-work all of them are deemed to have lost their employment status that was in 1998. And up to now, they still did not get their benefit because it was a conflict. That was also the time when the personnel of PALEA in1998 and that also gave rise to the decision of the validity of the 10-year suspension of the CBA. From 1998-2008 walang CBA negotiation ang PAL with the employees of PALEA. So that is the effect of the defiance of the assumption order. All strikers whether officers or members who defy the return-to-work order will be deemed to have lost their employment status. You will notice that in the St. Scholastica's case the strikers refused to return to work because according to them "we have filed a motion for reconsideration so we are returning to work and we will only return to work when the motion for reconsideration is decided with finality". According to the SC, that should not be the case, a return-to-work order is immediately executory even when the party filed a motion for reconsideration or regardless whether you filed an appeal or not.

If in the exercise of these assumption powers, hearing is not necessary anymore the SOLE can issue the order without even a petition being filed by the employer if he thinks that the strike can be harmful to the national interest. The SOLE can only enjoin a strike but it cannot enjoin the employer from taking any disciplinary action against the strikers. And that is what happened in another Philippine Airlines case - the SOLE assumed jurisdiction over the labor dispute, in his order the SOLE added that PAL is hereby enjoined from taking any retaliatory action against the strikers. The SC held that that couldnt be done because the authority of the SOLE in case of indispensable

industry is to enjoin a strike but it cannot prohibit the employer from taking disciplinary action against the strikers.

August 6, 2013

Unlike the older law, the labor code now guarantees the security of tenure. Under the old law, the employer can dismiss the employee if he does not like your face or does not like the way you part your hair, by just giving you one month notice. The only instance when the employee is entitled to reinstatement is when he is terminated because of unfair labor practice. But under the present set up whether unfair labor practice or not as long as there is no just cause for dismissal an employer cannot dismiss an employee. So we have what we call the security of tenure.

And when we say security of tenure, it simply means that the employee cannot be dismissed without just cause or authorized cause.

Now in case of regular employment, the employers shall not dismiss the employees except for just cause or authorized causes. So there are 2 aspects of the provision, dismissal for just cause and dismissal for authorized causes.

The dismissal for just causes are those mentioned in article 283 which states serious----- ---, fraud or willful breach of trust, willful disobedience, gross neglect of duty or commission of a crime and other analogous causes. Were as dismissal for authorized causes are those mention in article 284 to 285 this refers to retrenchment, redundancy , introduction of labor saving devices, closure establishment and decease .

this is the opening sentence of the provision in 279 it says that if there is regular employment so it could convey the idea that only those holding regular employment are entitled to security of tenure well that is true but employees who do not hold regular employment are also entitled to security of tenure in a qualified manner in the sense that they cannot be dismissed without just cause or authorized causes during the term of employment. When we say regular employment, what does that mean? An employment is considered regular when the employee was engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer except those who engaged in project basis or those who are engaged in a seasonal basis. The regular employment status is determined not by the contract or the name given to it by the parties but by the nature of work of the employee, therefore when the activity perform is usually necessary or desirable in usual business or trade of the employer, that employment is regular as a general rule.

regular employment may also indicated by repeated and continuous rehiring of employee because that will indicate the activity is indispensable to the operations of the employer. so it is not only regular rank and file employees entitled to security of tenure

even managerial employees are entitled to security of tenure this means that they cannot also be dismissed without just cause or authorized causes.

what is the remedy for employee dismissed illegally. Under the law an employee who is illegally dismissed is entitled to back wages, that is the relief. the remedy for employees illegally dismissed is to file complaint for illegal dismissal. You must distinguish relief from remedy. a petition for injunction is not the appropriate remedy because without a complaint for illegal dismissal being filed there is no labor dispute. this is exemplified by the case of Philippine airlines vs NLRC. I that case 2 flight attendant were dismissed for currency smuggling. Instead of filing a complaint for illegal dismissal, what they did was to file a petition for injunction before the NLRC. they prayed that the company PAL be restrained from dismissing them and to order PAL to reinstate the flight attendant with backwages. Now it was held by the supreme court that the remedy availed by them is not the proper remedy. the NLRC cannot issue an injunction because there is no labor dispute involved. That the NLRC can issue an injunction only when there is labor dispute.now in the absence of a complaint for illegal dismissal there is no labor dispute hence the NLRC CANNOT issue an injunction. now lets go to relief what is the relief available to employees who are illegally dismissed? remember the remedy is complaint for illegal dismissal. You have to distinguish. If you are talking about migrant worker the relief is reimbursement of placement fee plus 12 % interest per annum and salaries for the unexpired portion of his employment contract. Remember that when it comes to overseas worker reinstatement is not prescribed as their relief. The relief of reinstatement and back wages is available only to local employees. The legal basis for that is Article 797 when it says that an employee who is illegally dismissed is entitled to reinstatement with back wages reckoned from time of his dismissal up to actual reinstatement. Now in appropriate cases an illegally dismissed employee may be awarded separation pay in lieu of reinstatement or moral exemplary damages and attorneys fees.

what is a reinstatement? It means the restoration of an employment previously held. That means that an employee cannot be ordered or reinstated into a position which he never held before the time of his dismissal. For example, if the employee at the time of his dismissal was a temporary employee, the labor arbiter cannot order his reinstatement to a permanent position. Similarly, the employee cannot be reinstated into a higher position. It can only ordered that he be reinstated to the position at the time of his dismissal.

The case of there was this sale supervisor who was terminated because of losses, the validity of the dismissal was upheld. But the court ordered that if there is a vacancy, he should be given preference. He learned that the branch manager resigned and the company hired another person to take the place of the resigned branch manager. Upon learning of this, the sale supervisor filed a complaint that the company be directed to reinstate him to the position of branch manager. It was held by the supreme court that cannot be done

because the position held by the employee was sale supervisor whereas the position he wanted is branch manager which is higher and cannot be reinstated into a higher position.

Reinstatement is a relief, separate and distinct from back wages. Reinstatement restores a lost position whereas back wages restores lost income. Because they are separate and distinct from each other, reinstatement may be rewarded without back wages. Conversely, back wages may be awarded without ordering reinstatement. When is Dismissal considered to be illegal that will warrant reinstatement. There are certain situations when reinstatement cannot be awarded anymore. First if during the course of the illegal dismissal, the employer sells his business or transfers ownership of the business, the new owner cannot be ordered to reinstate the employee because the new owner is not obliged to absorb the employees of the old owner. Another situation when reinstatement cannot be ordered anymore is if during the course or the pendency of the illegal dismissal case, there has been business reverses and reduces personnel. Because of the reduced personnel, the employees can no longer be reinstated. We have a case like this when Globe Telecom acquired Visacom in 2000. At the time of the acquisition of Visacom, there was a case for illegal dismissal filed in 1998 by employees who were dismissed because of illegal walkout. The illegal walkout case was decided in favor of the employees. They were ordered to be reinstated with full back wages. And the case went up to the supreme court that the decision became final and executory. And up to now the case is still active. When the employees sought to enforce the decision some time in 2007-2008. Globe took the position that the reinstatement can no longer be enforced because there are no more positions to which they can be placed. When Globe acquired Visacom, there was a drastic reduction of personnel by about 60 to 70 percent. Likewise, they took the position that the back wages should not be extended beyond may2000. Just imagine if the back wages is computed between 1998 and 2007-2008 that can sum up to billions. The complainants took the position that the judgment is already final and executory. It can no longer be altered or modified. So there was another round. This time, the supreme court ruled out that the employees can no longer be reinstated because of the prevailing circumstances and the back wages should not be extended beyond May of 2000. So up to now the case is still pending and it is still in the process of computing the back wages. So There will be a third round in the supreme court if they cannot agree on the computation. So from our computation, we computed up to the present, it will amount to 18 million but we were able to limit the computation of back wages. So that is an example of where reinstatement can no longer be ordered despite of the finding of the illegality of the dismissal.

Another example when reinstatement can no longer be ordered is when the position occupied by the employee is already abolished. If this is the situation, the employer

should find a substantially equivalent position. If there is none, the employee would be entitled to a separation pay. Closure of business is also another example where reinstatement can no longer be ordered if during the pendencyof the case, the employer closes down business, there is nothing more to be reinstated because the business is gone. Likewise, if during the course of the proceeding the employee becomes physically or mentally incapacitated, he can no longer be ordered reinstatement because he is no longer mentally and physically fit to work. Also, when the employee reaches compulsory retirement, there is no reinstatement because compulsory retirement is the end of employment. There are some cases when the employee faces conviction of a criminal case that may also prevent reinstatement. The case of Sampaguita the employee was caught and dismissed because for theft of company property. She was apprehended taking out a piece of cloth. She filed a complaint of illegal dismissal which was decided in her favor which became final and executory. The decision was reinstatement with full back wages. Simultaneously, the employer filed a case of theft against the employee. The court convicted the employee. The employee sought the enforcement of the decision of the labor arbiter for the reinstatement. The employer put up the defense that the employee was already convicted so she can no longer be reinstated in her former position, the employee moved the reason that the reinstatement order is final and executory. But the supreme court held that the subsequent conviction of the employee in that criminal case is a supervening event that will bar the enforcement of reinstatement order because conviction in the criminal case is equivalent to the order of dismissal.

In some instances, the labor arbiter does not order reinstatement because of strained relations between the parties. Under the doctrine of strained relations, reinstatement should not be ordered anymore if the relationship between the parties has become so grave and fractured so as to preclude a harmonious working relationship.

This doctrine is usually applied to employees for the position of trust and confidence or those differences are already irreconcilable. But take note that the mere finding of the complaint of illegal dismissal does not automatically call for the application of this doctrine called the strained relations. Where the differences between