MIL Labor Law Essentials by Pyke Laygo

PRO HONORUM ET GLORIAM

LABOR LAW ESSENTIALS From Dean Salvador Poquiz lecture (Overview of Labor Law) During the 2010 Arellano Law Bar Review Program With special emphasis on Labor Relations

CONSTITUTIONAL PROVISION

Art. 13 – Rights of workero Rights to self organizationo Rights to living wageo Right to collective bargaining or negotiationo Right to security of tenureo Right to just and humane condition of work o Right to engage in peaceful concerted activitieso Right to strike in accordance with lawo Right to participate in formulation of policy and decision making

processes with the management (Principle of co-determination, principle of shared responsibilities)

o Right to profit sharing benefits Art. 12, Sec.6

o Principle of Distributive Justice – defusing, regulate the enjoyment of property ownership for the common good via the power of eminent domain.

Art. 19, Sec.5 – right to self organization of governmento Cannot have CBA but can have CNA

Art. 19, Sec. 2 (1) – Scope of Civil Serviceo Chartered government corp., governed by CSCo Subsidiary of chartered government corp. organized under

Corporation Code, LC.(Corporate offspring)

TYPES OF EMPLOYEES

1. Regular employees Whether continuous of broken, so long as the employment is for more

than one year, regular employment. Constant Rehiring, renewal of contract plus one year = regular

employment

Pyke LaygoMen in Law Fraternity and SororityArellano University School of Law


Necessary and desirable to the usual business or trade of the employer

Usual trade and business = main undertaking of the employer Expiration of the training period

o Training Period For Apprentice – not more than 6 months but not less than

3 months Combo of Theoretical Instruction plus OJT(Practical

application) The apprenticeship period is considered as the

probationary period Double apprenticeship is not allowed (apprenticeship

plus probationary period). It is against public policies. Apprentice is entitled to not less than 75% of the

minimum wage as issued by the wage board. Q: Is the apprentice entitled to full month pay? A:

Upon the expiration of the apprenticeship period or if the training company availed of the tax deduction scheme for apprenticeship salary, must pay 100%.

Learnership – engaged in non – apprenticiable or less skilled work, OJT plus optional theoretical instruction

Not less than 3 months No double learnership, period is probationary period Fixed at 75% of minimum wage as per wage order Once taken in after learning period, entitled to full

compensation Disabled/Handicapped – maybe regular employee if

employed in a job which is usually necessary and desirable to the usual trade of business of the employer which his performance is not affected by his disability.

Age, Physical, mental and sensory defects Nature of Training – as an apprentice or learner –

apply the rule

NB: Q: Who has jurisdiction over learnership and apprenticeship disputed? A: Plant Committee then Department of Labor and Employment. Labor Arbiter has no jurisdiction. (PAL vs Pano)

2. Probationary Employment



Period can be less than six months, if favorable to the employee as provided for the employer.

SC: 18 months probationary period can be warranted when the job required extensive training. The law provides for six months.

During this period, employees are required to comply with the employer’s standards.

Probation extension: allowed when agreed upon by the parties when necessary to comply with the probationary standards of the employer. What is prohibited is double probation.

But after the extension, the employee still have not reached the standards, employer can terminate the employee.

3. Seasonal Employment From season to season Performing the same task

4. Project Employment Hired for specific undertaking or project Upon termination of project, automatic cessation of employer and

employee relationship Q: What if there is illegal dismissal during the project? Answer:

Reinstatement during the period of the project and back wages but only during the term of the project.

Q; when can a project employee be a regular employee? A: Employers are required to submit termination report of the project to the nearest to the DOLE Office, failure to do this would make project employees as regular employee.

5. Non - project Employees Hired without reference to a specific project or job. Hence, they belong to a work pool. Q: Are they required to go under probationary period? A: Yes. They will be assigned to various projects or phase of such.

6. Fixed Term Employees Contractual employees Upon signing of the contract, employees knew when it will expire



Once rehired, they will morphed into regular employment. EXPTN: Seamen, even if rehired cannot be regular employees (Millares vs NLRC)

7. Casual Employees Activity performed is not usually necessary or desirable in the usual

business or trade of the ER (not regular); not project; not seasonal. He is uniquely regular because his “regularness” attaches only to the

particular activity that he has been doing while still a casual.

Prescriptive Period:

1. Purely Money Claims – 3 years2. Criminal cases under LC -3 years, as a general rule.

Exemptions are:a. Simple Illegal Recruitment – 5 yearsb. Qualified Illegal Recruitment - 20 years

3. ECC Cases -3 years4. Illegal Dismissal – 4 years5. GSIS Claims – 4 years

Exemption: Payment of premium, its 20 years.(SC)6. SSS Claims – for payment of premiums, 10 years 7. Sexual Harassment – 3 years but SC, no prescription, even after four

years.

Requirements for Appeal

1. Payment of appeal feeo Jurisdictional requirement – no payment, appeal will be dismissed

for lack of jurisdiction2. Submission of memorandum of appeal to LA a quo who will submit it to

the NLRC office which has appellate jurisdiction over the LA a quo.o The NLRC Commissioner can notify the parties to have amicable

settlement base on Art. 221 of LC. o No amicable settlement, proceed with decision. o When affirmed in toto, reinstated to the payroll. o Losing party, file Motion for Reconsideration. Only one MR is

allowed. This is a condition sine qua non for filing of certiorari. (St. Martin’s Funeral Home vs. NLRC)



o When MR denied, file a certiorari under Rule 65 to CA within 60 days.

o When Certiorari was denied or unfavorable, file MR again, then when denied thus upholding NLRC decision, certiorari to SC.

o SC can only review question of law, but can review question of facts when

1. When decision of LA, NLRC and CA are contrary, in collision or diametrically opposed to each other.(SC)

o Filing and reckoning period Reckoning Period: Upon receipt of the counsel of record

Philpost: The date of mailing, date of filing Private Carrier: The date of receipt of private party,

date of filing3. Pay appeal Bond

o Cash and surety bond only, but UERM Case: Property bond can be posted provided it is

sufficient to cover the monetary award Bank certification, irrevocable bank guarantee are not

allowed Q: Can you file a motion to reduce bond? A; Yes, but it

must be coupled with the payment of the reasonable amount of the bond. Without the payment, the period will not be tolled.

JURISDICTION OF LABOR ARBITER

Exclusive and Original Jurisdiction

1. Unfair labor practices2. Termination cases3. Big Money claims, 5k up

More than 5k, LA has jurisdictioni. EXPTN: Big Money Claims bore out of the

power of inspection of Secretary of Labor. ii. Power of inspection – by Sec. of Labor via the

Regional Director or his representatives. Can be done moto propio or by a Labor Standards Complaint of an employee supported by 20% of all the employees of the employer/plant.



1. Enforcement Order has the force and effect of a writ of execution.

2. When amount is contested: If the pieces of evidence are readily

available in the ordinary course of inspection, the Regional Office retains jurisdiction. If not, it will be transmitted for compulsory arbitration to the Regional Arbitration Branch of the NLRC, thus LA.

4. Small money claims with demand for reinstatement 5k or less, but with claim for reinstatement. Without demand for reinstatement, Regional

Director. Thus his decision is appealable directly to the NLRC.

5. Other cases involving employer – employee relationships Causal relation between employer – employee.

Without this, regular courts will have jurisdiction. Apply the Four Fold Test to determine employer -

employeei. Selection and engagement of the putative

employeeii. Manner of payment of salary or wagesiii. Presence or absence of the power of dismissal iv. Presence or absence of the power control

1. Has primacy over all other2. Q: Are all kinds of control indicative of

EE-EM relationship? A: No. If there is lesser control, no relationship. More control, there is relationship (Jay Sonza case)

3. Other test in determining relationship. Economic relations test – Sevilla vs.

CA: The prevailing economic relationship of employer and employee can be indicative of a relationship.



Q: Are there instances when there is no formal contract of employment but the law mandates the existence of employer – employee relationship? A: Yes. 1. In cases of labor only contracting. As penalty, actual employer deemed as employer of the contractual employee, the contractor will be deemed as the agent of the former.

Q: Can contractual employees form a union in the actual employer’s premises when there is a labor only contracting? A.1: Yes, because the law mandates that the actual employer is the employee of the contractor’s employee.A.2: In cases of Working Scholars – under the law, the agreement, no employer – employee relationship.Requirements: There must be a real opportunity to finish the course. NB: For purposes of civil damages, the working scholar will be treated as employee and the school as an employer, particularly in quasi-delics.

6. Legality of strike and Lockout Strike is the most lethal weapon on employees

i. May affect the socio-economic situation of a country that is why there is a law on strike.

ii. Requirements to stage a lawful strike1. Based on a valid ground



Two Grounds CBA Deadlock ULP Union Busting (w/c is also

ULP)o NB: Inter/Intra Union

Disputes, wage distortion issues are not strikable issues.

2. Approved by the majority of the total membership of the union through strike voting

3. Filing of a Notice of strike To be filed with NCMB, which will

look into the factual grounds of the strike. It will either dismiss it by issuing a preventive mediation order which will have the effect of making the strike illegal if it still undertaken and will convert the issue into a preventive mediation case.

Must be filed before 30 days in case of CBA Deadlock and 15 days for ULP. The period is known as the Cooling Off Period. Here, the Grievance Machinery in the CBA will be exhausted.

7 days after failure of the Grievance Machinery, the issue will be submitted to Voluntary Arbitration conducted by a 3rd non-partisan person known as the Voluntary Arbitrator whose decision will be appealable to the CA under Rule 43.

Principle of Improved Offer – through secret balloting, union



members can choice whether or not to accept the improved offer of the union.

Principle of Reduced Offer – through secret balloting, the BOD or members of the governing body of the company can choice WON to accept the reduced offer of the union.

In both cases, it will have the effect of retuning to industrial peace=workers return to work, employer accepts workers and resumes operation.

Compulsory Arbitration – when the government intervenes.

Q: During the cooling off period, officers of the union were dismissed that seems to tantamount to union busting. May the union immediately strike? A: SC: If there is union busting and the union has already complied with the 24 hour prior notice rule, 7 day strike report and the notice of strike has already been submitted, then a strike can be staged.

4. Compliance of the 24 hour prior notice rule of strike vote

Separate notice to DOLE and employer of the place, time and date of the strike vote 24 hours before it is staged.

5. Submission of the strike vote report Must be submitted 7 days before

the strike.



Q: What if the strike vote was submitted during the cooling off period? A.: The strike vote 7 day period must be reckoned from the expiration of the cooling off period.

6. Compliance of the doctrine of means and purposes

The purpose of the strike must be legal and the means to attain the purpose must be also legal. (e.g. uttering libelous remarks during the strike. Thus, commission of illegal acts during a lawful strike, the strike can be declared illegal.)

7. For Hospitals and Medical Institutions: designation of an effective skeletal force.

NB: Officers of the union is liable for dismissal for masterminding the illegal strike. Basis: Doctrine of Vicarious Liability.

Members of the union who actively participated in the illegal strike will also be liable for dismissal.

Q: Are the abovementioned dismissed employees entitled to back pay? A: As a general rule, no. Reason: No work, no pay. But if they are:

Discriminatorily dismissed Illegally locked out by

employer When the workers

unconditionally offer to return to work but they were denied to return to work…. …they can return to work

Once a strike is declared legal, the workers cannot be liable for



damages that occurred during the strike based on the doctrine of damnum absque injuria.

You must be unionized (legitimate, registered) before your strike can be declared legal.

Q: Can a union not registered conduct a Certification election? A: Yes, in case of a local chapter issued with a chapter certificate. Here the charter member was issued a charter for purposes of certificate election. Other privileges accorded to a union will be withheld for the meantime until completion of the other requirements.

Principle of Comingling – the rank and file union and the supervisory union of the same company can join the same federation.

Q: Can government employees unionize? A. Yes. But they don’t have the power to collectively bargain. They can only have the power to collectively negotiate. They also cannot strike because according to SC, strike of government employees is a civil service offense. They serve the people. If you allow the government employees to strike, it will tremendously affect the delivery of public service. It tantamount ultimately as an assault to the sovereignty.

GOCC employees without original charters can unionize and strike.



LRTA vs Benus: SC said LRTA is a GOCC with original charter, thus its employees cannot strike. However, employees of its subsidiaries or Corporate Offspring of GOCC with or without original charter, can strike.

Managerial, and Confidential employees cannot join a labor union and strike.

For confidential employee, they must have access to labor relations matters to be disqualified for union membership.

Cooperative employees who are also members thereof cannot unionize.

Religious Objectors can choose not to join a union. However they can vote in certification election.

iii. Types of Strikes1. Authorized strikes

There must be a strike vote.2. Unauthorized strikes

When the there is no strike vote – Wild Cat strike

3. General Strike No EE-EM Relationship Welga ng Bayan – SC a form of

Sympathetic Strike Political in Nature Industry wide strike –e.g. all

employees of the air transportation in the RP

According to SC, these strikes are unwarranted

4. Lightning Strike



Brief strike that was stage in short duration

5. Slowdown Strike To reduce company reduction

TypesI. Sit down – strikers

remain in the plant but they reduce company reduction

II. Quickie – some may remain in the plant or some may be outside the plant

6. Economic Strike Staged as a result of a collective

bargaining deadlock7. ULP Strike

Staged in violation of the worker’s right to self organization

7. Damages8. Employees of GOCC without original charter9. OFW

Based on Section 10 of RA 8042 as amended RA 10022

10. Over certain churchmen (pastor, ministers) If it’s purely religious function, LA has no jurisdiction. But if not, it has jurisdiction.

11. Collateral Matters Incidental to the main case Q: Can a LA award attorney’s fees in an illegal

dismissal case? A: Yes. When the LA has jurisdiction over the main issue of the case, it has jurisdiction over collateral and incidental matters.

12. 3rd Party Compliant of a party not connected to a Labor case that has been affected by its execution.

NB. Except as otherwise provided by this code. These matters are beyond the jurisdiction of the Labor Arbiter.



1. Inter/Intra Corporate Disputes2. Training and learnership agreement disputes3. Labor cases against company under rehabilitation proceedings4. International bodies and organizations

o This will be violative of the convention on protocol and a violation of its functional immunity.

o DFA vs CA: ADB is an international organization outside the reach of LA.

5. Art. 263 (g) – Assumption power, preemptive power Provides that the President or Secretary of Labor can

assume jurisdiction of a labor dispute involving industries indispensable to national interest for its resolution.

The state and government is a passive party. Q: Can assumption be moto propio? A: Yes. Q: Can one of the parties to a labor dispute involving a

labor dispute in an industry indispensable to national interest file a motion for assumption? A: Yes, either by the union or the employer.

Once assumption is made, an assumption order will be issued.

Legal effects of assumption order: Once issued, it has the effect of a writ of injunction. A return to work order is deemed written on the

assumption order. The workers must report back to work. Failure to do

so would mean that they are now engaging in a prohibited/illegal activity.

All issues cognizable by the labor arbiter under art. 217 can now be resolved by the assumption officer, when it is raised under assumption.

UST Faculty Union vs. UST: Assumption of jurisdiction contemplates actual reinstatement only. Thus, no choice between payroll or actual reinstatement unlike in illegal dismissal.

POWERS AND JURISDICTION OF THE NLRC

1. Contempt Power Two Types



i. Indirect Contempt1. To be dealt with by the NLRC and its

rules. ii. Direct Contempt

1. By the Rules of Court (R71)2. Injunctive Power

2. Certification Power Art. 263 (g) Assumption powers of President and/or

Secretary of Labor. The President or the Secretary of Labor, upon

assumption, can also certify the labor dispute assumed to compulsory arbitration. Thus, it is certified to the NLRC which will resolve the dispute.

Q: Can the labor dispute be certified for voluntary arbitration? A: Yes. If the Secretary of Labor deems it fit for voluntary arbitration.

3. Appellate Power Decisions of LA under Art. 217 Decisions of LA under Art. 128 (b) in relations to

contested cases Decisions of LA arbiter in wage distortion in non-

unionize companies. Elements of wage distortion (Pru Bankers Case)

i. Existence hierarchy of positionsii. There in an increase in the lower pay

class with no corresponding increase higher pay class

iii. Abolition of the two groups or classes iv. Wage distortion applies only to the same

region NB: Q: Who has jurisdiction over wage

distortion problem? A: For unionize establishment –

Voluntary Arbitrator

For non - unionize establishment – Labor Arbiter.



NB: Although wage distortion problems are not strikable, but for failure to pay the increase pursuant to the wage order, the employer will be liable to pay double the amount of the increase under the Doctrine of Double Indemnity.

Decisions of the LA pursuant to Sec. 10 of RA 8042 in cases of OFW.

Decisions of the RD of their adjudicatory functions under Art. 129 of LA.

o Adjudicatory Function Indications:

1. Filed by house worker or employee

2. No more employer and employee

3. No more claim for reinstatement4. Claim is not more than 5k.

4. Injunctive Power A hearing must be conducted to observe due

process. Q: Is there a provision in the LC that a TRO is issued

without conducting a hearing by the NLRC? A: Yes, a TRO is a mere interlocutory order. Thus can be issued ex parte. But for injunction, a hearing is indispensible

ILLEGAL DISMISSAL (Step by step procedure)

File it with the Regional Arbitration Branch of the NLRC which has territorial jurisdiction over the workplace of the complainant.

Mandatory Preliminary Conference. Resort to amicable settlement as per Art. 221 of the LC. Second MPC, if first attempt is not successful.

After second MPC, no amicable settlement, LA will mandate parties to submit position papers.

o SC: Position papers proceedings are not in violation of due process. Through their papers, they are heard. Plus, technical



matters are not binding in labor proceedings being an administrative proceeding.

o Q: Can one of the parties file a motion to have a trial type proceeding? A: Yes, but subject to the discretion of the LA.

When final paper has been submitted, LA has 30 days to decide. Ten calendar days to appeal No appeal, immediately self-executory as to the reinstatement

aspect. No need for writ of execution. Virgen Shipping case: As to other matters, a writ of execution is

needed. To be filed after period to appeal expired and no appeal is made.

After the motion for execution, LA will set it for pre-execution conference to abbreviate the proceedings as to Art. 221 of LC.

If after the pre-execution conference, no settlement, proceed to execution.

Garnishment and levy is allowed when no money to answer for the judgment.

3rd party complaint is cognizable by LA for execution.o Instances when you can lift or quash the writ of execution:

Issued against a non-party Issued on account of graft and corruption Issued on account that the awards is incomplete Irregularly issued

NB: Doctrine of Immutability of Final Judgment: Final judgments are final and cannot be modified.

Grounds for Appealo Grave abuse of discretiono Graft and corruptiono Serious errors in the finding of facto Fraud

COLLECTIVE BARGAINING AGREEMENT

Q: What are the modes of determining the representation status?1. Voluntary Recognition – it requires that there is no other

union. Only one union has the support of the majority of the employees. The employer and employee must inform the Regional Director of the DOLE of the fact of the



voluntary recognition. From date of recognition, the union becomes a legitimate labor organization.

o Q: Does the one year bar rule also apply to voluntary recognition? A: Yes, no election can be held, 12 months from the date of the final voluntary recognition election results.

2. Consent election – the election was agreed upon by two or more union.

o Q: Is intervention of DOLE required in consent election? A: No. Intervention is subject to the discretion of workers.

o One year bar rule also applies. 3. Certification election – one which is conducted among

three or more union. This is treated as the sole concern of the employees and the employer is a mere by stander and it is the best forum in determining the will of the employees.

o Sole Concern Rule o By stander Ruleo Best Forum Rule

Majority must vote – 50% plus one One of the unions or a no union should have

garnered the majority vote. (Second Majority Rule) Provided 50% of the majority validly cast their votes.

A no union may win in certification election. When a no union win, the one year bar rule will still applies.

In consent election, 25 % Subscription or Consent Requirement must be present. If attained, holding of certification election is mandatory, if not discretionary. SC: Even if 25% not attained, consent election can still be held because it is the best way to attain the will of the workers.

Instances when holding of certification election is not allowed:

i. Contract Bar Rule – no CE can be conducted during the lifespan of the CBA except during



the 60 day period (Freedom Period) before the expiration of the 5 year life span of the CBA

Exemption to the contract bar rule:a) If the CBA is not registered

o Still valid as to parties but a CE can now be conducted.

b) If the CBA is incomplete, inadequate or sub standard. (Sweetheart Contract)

c) If the CBA is hastily entered into or prematurely extended.

d) In cases of mass disaffiliation in the bargaining agent.

o Q: Can the remaining officers of the union still bargain with the employer? A: Yes. Until and unless it lost in a certification election, it is still the bargaining agent.

ii. One Year Bar Rule – no CE may be held one year after the final result of a prior election. This applies to all election.

iii. Deadlock Bar Rule – a notice of strike is filed with the NCMB which has been the subject of conciliation, mediation, exhaustion of grievance machineries, improved offer balloting, reduced offer balloting.

iv. Charge of Company Union Rule –SC: If there is charged of company unionism which is an unfair labor practice, it is a prejudicial question which must be resolved first before conducting a certification election.

v. Negotiation Bar Rule – if there is a collective bargaining negotiation in the company



premises, it will be a bar for certification election.

vi. Appeal Bar Rule – if there is pending appeal over a decision of the med arbiter elevated to the Secretary of Labor, pending decision, no certification election can be held.

4. Run off or second election o Contested between two unions garnering the

highest number of votes in a prior electiono A no union does not exist in a runoff election

Contents of a CBA1. Preamble2. Union prerogatives3. Management prerogatives4. Economic clauses5. Non – economic clauses6. Union Security Clauses7. Escalator Clause8. Family planning clauses9. Union Education Clauses10. Grievance Machinery Clause11. Drug Free Provision Clause12. Separability Clause13. Effectivity Clause14. Automatic Renewal Clause15. No strike, no lock out clauses

1. Q: can the union waive the right to strike? A: Generally, no. EXPT: By inserting in the CBA a “no strike, no lock out clause”

Term of CBA1. As to representation aspects – 5 years2. As to renegotiation aspects – 3 years

Q: Upon expiration of the CBA, and no new CBA has been agreed upon yet, what will govern? A: Old CBA subsists under the Principle of CBA Continuity.

Q: Can the parties agree to suspend collective bargaining for 10 years? A: Yes, in order to provide stability and predictability of collective bargaining agreements for the benefit of both parties.



SC: The Company can sue employees for violation of a CBA provision. Q: Why do workers unionize? A: 1. In order to have relative equality in

the bargaining process with the employer. 2. Security of tenure. 3. Attain maximum economic benefits in the collective bargaining agreement.

Q: Can a single employee bargain with management? A: Yes, there is no law prohibiting individual bargaining.

Q: If an employer is already giving out voluntary benefits, can the employees still demands for 13th Month Pay? A: It depends. If the amount of voluntary benefits given is equal to the amount of the 13th

Month Pay, no more. But if it’s less, they can. In the event that the CBA is approved, it will govern the company

premises or the law of the plant. Thus, the law of the plant is another name for a CBA.

Whatever benefits that the CBA may bring, non members of the union are also benefitted. They are not required to pay union dues but they will pay agency fees that will be of the same amount as that of union dues. Payment of the agency fee is known as the agency shop, maintenance of the treasury shop, anti-hitchhiker clause, anti-free rider clause.

Q: Is there still a need for the union and the company to agree to impose agency shop? A: No need. The agency shop agreement is already provided for by law.

Doctrine of Union Monopoly/Exclusive Right Rule – the certified union is the only bargaining agent allowed to bargain with the management to the exclusion of the other unions in the plant or company premises.

UNFAIR LABOR PRACTICES

An act either by the employer or the union, their agent or representatives which violates the constitutional right of the workers to self organization.

There must be employer and employer relationship. Instances when ULP can be committed even if there is no EE-EM

relationship:1. When committed by agents or representative



2. Yellow dog contract – an applicant is made to denounce his membership to a union or promised not to join one as a condition for employment. Hence, being an applicant, no employer and employee relationship yet.

Two Types of ULPo By employer

1. Interference, restraint , coercion in the formation of a union

Discourage the formation or continuation of a union

3 ways of commissioni. Economicii. Psychologicaliii. Physical

2. Yellow dog contract3. Discrimination

Not per se illegal. Only if it’s designed, calculated to discriminate the officers and members of union with regards to benefits due to all employees.

It maybe management prerogative. But if it’s a grand design to undermine the union, then it is ULP

4. Forming or assisting in forming a company dominated union

SC: Passivity of a union is an indication of a company dominated union.

Organize with help or assistance of management. Economic, legal support from employer

5. Refusal to bargain collectively Duty to bargain collectively – mutual obligation of

the parties to bargain and negotiate with matters regarding terms of employment and adjustments of grievance machineries for redress of grievances promptly, expeditiously and in good faith.

Standards of Collective Bargaining;i. Mutual – either the parties may initiate

collective bargaining.



Union may submit CBA proposal. Employer, after 10 days, may submit a counter proposal. Failure to submit a counter proposal will amount to refusal to bargain, thus a ULP and the CBA submitted by the union will be governing CBA in the plant.

Q: A counter proposal was submitted, the employer made it hard for employees to bargain during the negotiations with no real intention to sign a CBA. Is the employer guilty of ULP? A: Yes, the employer is guilty of Surface Bargaining.

Blue Sky Bargaining - the union submitted a proposal which contains economic demands beyond the reach and capacity of the employers, thus sky high.

Runaway Shop – when the employer remove his plant or office from one place to another in order to evade unionism or collective bargaining and relocate it to another place which is called as runaway area.

Q: Is it valid to strike in the Runaway Area? A: Yes. According to the Labor Code, strike areas also include runaway areas.

ii. Prompt iii. Good faith

Q: What if employer submit a counterproposal on a take it or leave it basis, is the employer



liable for refusal to bargain collectively? A: Yes. The employer is guilty of “Boulwarism.” This is considered a malpractice which is a violation of good faith bargaining.

6. Contracting out of services SC: Mere contracting out within the period of six

months is valid. But if it goes beyond six months, it is ULP. Because employer deny the strikers the opportunity to pursue their work.

7. Gross and flagrant violations of the CBA Refers to economic provisions

o By Union1. Interference, restraint , coercion in the formation of a union2. Discrimination3. Payment of Negotiation Fees

It is when in order to settle economic provisions in CBA, union demands from employer negotiation fees.

Sweetheart Contract – when the CBA was not able to get full economic benefits for employees, or it’s an incomplete CBA. Example: when CBA does not have an arbitration clause.

o NB: An incomplete CBA does not bar a certification election. Thus not bar on holding another certification election during the 12 month ban.

4. Gross and flagrant violations of CBA 5. Refusal to bargain collectively6. Featherbedding Activities

Union demanding from employers for fees on services rendered or not rendered, performed or not performed.

Prolonging the work In short, the union is engaged in extortion


MIL Labor Law Essentials by Pyke Laygo

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Transcript of MIL Labor Law Essentials by Pyke Laygo