Probationary employees can join a union and can vote in a CE

• Any employee, whether employed for a definite period or not, shall beginning on the first day of his/her service, be eligible for membership in any labor organization. In a certification election for the bargaining unit of rank and file employees, all rank and file employees, whether probationary or permanent are entitled to vote. As long as probationary employees belong to the defined bargaining unit, they are eligible to support the petition for certification election.

• NUWHRAIN-Manila Pavilion Hotel Chapter v. Secretary, July 31, 2009

Confidential Employees• Confidential employees are those who (1) assist

or act in a confidential capacity, (2) to persons who formulate, determine, and effectuate management policies in the field of labor relations. The two (2) criteria are cumulative, and both must be met

• The exclusion from bargaining units of employees who, in the normal course of their duties, become aware of management policies relating to labor relations is a principal objective sought to be accomplished by the “confidential employee rule.”

• Tunay na Pagkakaisa ng Manggagawa sa Asia Brewery v. Asia Brewery, August 3, 2010

• As regards the qualification of bank cashiers as confidential employees, National Association of Trade Unions (NATU) – Republic Planters Bank Supervisors Chapter v. Torres declared that they are confidential employees having control, custody and/or access to confidential matters, e.g., the branch's cash position, statements of financial condition, vault combination, cash codes for telegraphic transfers, demand drafts and other negotiable instruments, pursuant to Sec. 1166.4 of the Central Bank Manual regarding joint custody, and therefore, disqualified from joining or assisting a union; or joining, assisting or forming any other labor organization.

• Golden Farms, Inc. v. Ferrer-Calleja meanwhile stated that “confidential employees such as accounting personnel, radio and telegraph operators who, having access to confidential information, may become the source of undue advantage. Said employee(s) may act as spy or spies of either party to a collective bargaining agreement.”

• In Philips Industrial Development, Inc. v. National Labor Relations Commission, the Court designated personnel staff, in which human resources staff may be qualified, as confidential employees because by the very nature of their functions, they assist and act in a confidential capacity to, or have access to confidential matters of, persons who exercise managerial functions in the field of labor relations.

• Standard Chartered Bank Employees Union (SCBEU-NUBE) v. Standard Chartered Bank, April 22, 2008

Confidential Employees

Mixture of R&F and Supervisory employees does not negate the union’s legitimacy

• In Pagpalain Haulers, Inc. v. Trajano, the Court had occasion to uphold the validity of the 1997 Amended Omnibus Rules, although the specific provision involved therein was only Sec. 1, Rule VI, which does not require that, for its creation and registration, a local or chapter submit a list of its members.

• Then came Tagaytay Highlands Int’l. Golf Club, Inc. v. Tagaytay Highlands Employees Union-PGTWO in which the core issue was whether mingling affects the legitimacy of a labor organization and its right to file a petition for certification election. This time, given the altered legal milieu, the Court abandoned the view in Toyota and Dunlop and reverted to its pronouncement in Lopez that while there is a prohibition against the mingling of supervisory and rank-and-file employees in one labor organization, the Labor Code does not provide for the effects thereof.[1][55] Thus, the Court held that after a labor organization has been registered, it may exercise all the rights and privileges of a legitimate labor organization. Any mingling between supervisory and rank-and-file employees in its membership cannot affect its legitimacy for that is not among the grounds for cancellation of its registration, unless such mingling was brought about by misrepresentation, false statement or fraud under Article 239 of the Labor Code.

•Republic of the Philippines, represented by DOLE, v. Kawashima Textile, July 23, 2008

Mixture of R&F and Supervisory employees does not negate the union’s legitimacy

• In San Miguel Corp. (Mandaue Packaging Products Plants) v. Mandaue Packing Products Plants-San Miguel Packaging Products-San Miguel Corp. Monthlies Rank-and-File Union-FFW, the Court explained that since the 1997 Amended Omnibus Rules does not require a local or chapter to provide a list of its members, it would be improper for the DOLE to deny recognition to said local or chapter on account of any question pertaining to its individual members.

• More to the point is Air Philippines Corporation v. Bureau of Labor Relations, which involved a petition for cancellation of union registration filed by the employer in 1999 against a rank-and-file labor organization on the ground of mixed membership: the Court therein reiterated its ruling in Tagaytay Highlands that the inclusion in a union of disqualified employees is not among the grounds for cancellation, unless such inclusion is due to misrepresentation, false statement or fraud under the circumstances enumerated in Sections (a) and (c) of Article 239 of the Labor Code.

•Republic of the Philippines, represented by DOLE, v. Kawashima Textile, July 23, 2008

20% requirement must be at the time of registration

• Art. 234(c) requires the list of names of all the union members of an INDEPENDENT UNION comprising at least 20% of the bargaining unit. This should not be equated with the list of workers who participated in the organizational meetings (par [b]).

• Subsequent affidavits of retraction (withdrawal of membership) will not retroact to the time of the application for registration or even way back to the organizational meeting.

• Eagle Ridge Golf and Country Club v. CA, March 18, 2010

A trade union center CANNOT create a chapter

• A trade union center is any group of registered national unions or federations organized for the mutual aid and protection of its members; for assisting such members in collective bargaining; or for participating in policy formulation.

• A trade union center has no authority to charter directly. Under the law and the rules, the power granted to labor organizations to directly create a chapter or local through chartering is given to a federation or national union only, not to a trade union center.

• San Miguel Corporation Employees Union v. San Miguel Packaging Products Employees Union, September 12, 2007

Charter Certificate not required to be certified under oath

• The charter certificate need not be certified under oath by the local union’s secretary or treasurer and attested to by its president.

• Considering that the charter certificate is prepared and issued by the national union and not the local/chapter, it does not make sense to have the local/chapter’s officers certify or attest to the due execution of such document.

• Samahang Manggagawa Sa Charter Chemical (SMCC-SUPER) v. Charter Chemical and Coating Corp., March 16, 2011

Mixture of R&F and Supervisory employees does not negate the

union’s legitimacy• The mixture of rank-and-file and supervisory

employees in a union does not nullify its legal personality as a legitimate labor organization.

• Samahang Manggagawa Sa Charter Chemical (SMCC-SUPER) v. Charter Chemical and Coating Corp., March 16, 2011

• As amended by R.A. 9481, the Labor Code now allows a R&F union and a Supervisory union of the same company to be part of the same federation.

Voluntary Recognition• An employer cannot ignore the existence of a legitimate labor organization at the time of its

voluntary recognition of another union. The employer and the voluntarily recognized union cannot, by themselves, decide whether the other union represented an appropriate bargaining unit.

• The inclusion in the union of disqualified employees is not among the grounds for cancellation of registration, unless such inclusion is due to misrepresentation, false statement or fraud under the circumstances enumerated in Sections (a) to (c) of Article 239 of the Labor Code. THUS, CLUP-SLECC AND ITS AFFILIATES WORKERS UNION, HAVING BEEN VALIDLY ISSUED A CERTIFICATE OF REGISTRATION, SHOULD BE CONSIDERED AS HAVING ACQUIRED JURIDICAL PERSONALITY WHICH MAY NOT BE ATTACKED COLLATERALLY. THE PROPER PROCEDURE FOR SLECC IS TO FILE A PETITION FOR CANCELLATION OF CERTIFICATE OF REGISTRATION[1][11] OF CLUP-SLECC AND ITS AFFILIATES WORKERS UNION AND NOT TO IMMEDIATELY COMMENCE VOLUNTARY RECOGNITION PROCEEDINGS WITH SMSLEC.

• The employer may voluntarily recognize the representation status of a union in unorganized establishments. SLECC WAS NOT AN UNORGANIZED ESTABLISHMENT WHEN IT VOLUNTARILY RECOGNIZED SMSLEC AS ITS EXCLUSIVE BARGAINING REPRESENTATIVE ON 20 JULY 2001. CLUP-SLECC AND ITS AFFILIATES WORKERS UNION FILED A PETITION FOR CERTIFICATION ELECTION ON 27 FEBRUARY 2001 AND THIS PETITION REMAINED PENDING AS OF 20 JULY 2001. THUS, SLECC’S VOLUNTARY RECOGNITION OF SMSLEC ON 20 JULY 2001, THE SUBSEQUENT NEGOTIATIONS AND RESULTING REGISTRATION OF A CBA EXECUTED BY SLECC AND SMSLEC ARE VOID AND CANNOT BAR CLUP-SLECCWA’S PRESENT PETITION FOR CERTIFICATION ELECTION.

• Sta. Lucia East Commercial Corporation v. Hon. Secretary Of Labor, August 14, 2009

Certificate of Non-Forum Shopping NOT required

in Petition for Certification Election

• There is no requirement for a certificate of non-forum shopping in the Labor Code or in the rules.

• A certification proceeding, even though initiated by a “petition,” is not a litigation but an investigation of a non-adversarial and fact-finding character. Such proceedings are not predicated upon an allegation of misconduct requiring relief, but, rather, are merely of an inquisitorial nature.

• SAMMA-LIKHA v. SAMMA Corporation, March 13, 2009

Petition for Certification Election• The Secretary of Labor and Employment dismissed the first

petition as it was filed outside the 60-day freedom period. Subsequently, another petition for CE was filed, this time within the freedom period. Is this later Petition barred?

• At that time therefore, the union has no cause of action since they are not yet legally allowed to challenge openly and formally the status of SMCGC-SUPER as the exclusive bargaining representative of the bargaining unit. Such dismissal, however, has no bearing in the instant case since the third petition for certification election was filed well within the 60-day freedom period. Otherwise stated, there is no identity of causes of action to speak of since in the first petition, the union has no cause of action while in the third, a cause of action already exists for the union as they are now legally allowed to challenge the status of SMCGC-SUPER as exclusive bargaining representative.

• Chris Garments Corporation v. Hon. Patricia A. Sto. Tomas and Chris Garments Workers Union-PTGWO, January 12, 2009

Union’s legal personality not subject to collateral attack

• The legal personality of petitioner union cannot be collaterally attacked in the certification election proceedings. A separate action for cancellation of the union’s registration/legal personality must be filed.

• Samahang Manggagawa Sa Charter Chemical (SMCC-SUPER) v. Charter Chemical and Coating Corp., March 16, 2011

• As amended by R.A. 9481, the Labor Code now provides that, in certification election cases, the employer shall not be considered a party with a concomitant right to oppose a petition for certification election.

Employer as Bystander

• Except when it is requested to bargain collectively, an employer is a mere bystander to any petition for certification election; such proceeding is non-adversarial and merely investigative, for the purpose thereof is to determine which organization will represent the employees in their collective bargaining with the employer. The choice of their representative is the exclusive concern of the employees; the employer cannot have any partisan interest therein; it cannot interfere with, much less oppose, the process by filing a motion to dismiss or an appeal from it; not even a mere allegation that some employees participating in a petition for certification election are actually managerial employees will lend an employer legal personality to block the certification election. The employer's only right in the proceeding is to be notified or informed thereof.

• Republic of the Philippines, represented by DOLE, v. Kawashima Textile, July 23, 2008

Union’s legal personality not subject to collateral attack

• The legal personality of petitioner union cannot be collaterally attacked in the certification election proceedings. A separate action for cancellation of the union’s registration/legal personality must be filed.

• Legend International Resorts v. Kilusang Manggagawa ng Legend, February 23, 2011

Grounds for cancellation of union registration has been reduced

• There are only THREE (3) grounds for cancellation of union registration:– (a) Misrepresentation, false statement or fraud in connection

with the adoption or ratification of the constitution and by-laws or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification;

– (b) Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election of officers, and the list of voters;

– (c) Voluntary dissolution by the members.

• Failure to comply with the reportorial requirements shall not be a ground for cancellation of union registration but shall subject the erring officers or members to suspension, expulsion from membership, or any appropriate penalty.

Whoever alleges fraud/misrepresentation

has burden of proof• The charge that a labor organization committed

fraud and misrepresentation in securing its registration is a serious charge that should be clearly established by evidence and the surrounding circumstances.

• The petitioner (the party that filed the Petition for Cancellation) has the burden of proof.

• Yokohama Tire Phils. v. Yokohama Employees Union, March 10, 2010; Heritage Hotel Manila v. PIGLAS-Heritage, October 30, 2009

Signing of Petition for CE not disloyalty

• The mere signing of the authorization in support of a Petition for Certification Election before the “freedom period,” is not sufficient ground to terminate the employment of union members under the Union Security Clause respondents inasmuch as the petition itself was actually filed during the freedom period.

• PICOP Resources, Inc. v. Tañeca, August 9, 2010

Certification Election

• VALIDITY – Majority of eligible voters voted• WINNER – Majority of valid votes• RUN-OFF ELECTION

– 3 or more choices– No winner– Union votes amount to at least 50% of total votes

Employer’s insistence to exclude a particular provision in the

negotiations NOT refusal to bargain• The duty to bargain does not include the

obligation to reach an agreement. While the law makes it an obligation for the employer and the employees to bargain collectively with each other, such compulsion does not include the commitment to precipitately accept or agree to the proposals of the other. All it contemplates is that both parties should approach the negotiation with an open mind and make reasonable effort to reach an agreement.

• Union of Filipro Employees v. Nestle Phils., March 3, 2008

CBA

• Term – 5 years as to representation aspect

• All other provisions – no fixed term but subject to mandatory renegotiation NOT LATER THAN the end of the third year

5-year term• While the parties may agree to extend the CBA’s original five-

year term together with all other CBA provisions, any such amendment or term in excess of five years will not carry with it a change in the union’s exclusive collective bargaining status. By express provision of the above-quoted Article 253-A, the exclusive bargaining status cannot go beyond five years and the representation status is a legal matter not for the workplace parties to agree upon. In other words, despite an agreement for a CBA with a life of more than five years, either as an original provision or by amendment, the bargaining union’s exclusive bargaining status is effective only for five years and can be challenged within sixty (60) days prior to the expiration of the CBA’s first five years.

• FVC Labor Union-Philippine Transport and General Workers Organization (FVCLU-PTGWO) v. Sama-Samang Nagkakaisang Manggagawa Sa FVC-Solidarity Of Independent And General Labor Organizations (SANAMA-FVC-SIGLO), November 27, 2009

ULP• In Silva v. National Labor Relations Commission, we explained the

correlations of Article 248 (1) and Article 261 of the Labor Code to mean that for a ULP case to be cognizable by the Labor Arbiter, and for the NLRC to exercise appellate jurisdiction thereon, the allegations in the complaint must show prima facie the concurrence of two things, namely: (1) gross violation of the CBA; and (2) the violation pertains to the economic provisions of the CBA.

• This pronouncement in Silva, however, should not be construed to apply to violations of the CBA which can be considered as gross violations per se, such as utter disregard of the very existence of the CBA itself, similar to what happened in this case. When an employer proceeds to negotiate with a splinter union despite the existence of its valid CBA with the duly certified and exclusive bargaining agent, the former indubitably abandons its recognition of the latter and terminates the entire CBA.

• (Employees Union of Bayer v. Bayer Phils., December 6, 2010)

Bonus in the CBA

• Generally, a bonus is not a demandable and enforceable obligation. For a bonus to be enforceable, it must have been promised by the employer and expressly agreed upon by the parties. Given that the bonus in this case is integrated in the CBA, the same partakes the nature of a demandable obligation. Verily, by virtue of its incorporation in the CBA, the Christmas bonus due to respondent Association has become more than just an act of generosity on the part of the petitioner but a contractual obligation it has undertaken.

• Lepanto Ceramics v. Lepanto Ceramics Employees Association, March 2, 2010

Grievance• Petitioners clearly and consistently questioned the legality of

RGMI’s adoption of the new salary scheme (i.e., piece-rate basis), asserting that such action, among others, violated the existing CBA. Indeed, the controversy was not a simple case of illegal dismissal but a labor dispute involving the manner of ascertaining employees’ salaries, a matter which was governed by the existing CBA.

• Article 217(c) of the Labor Code requires labor arbiters to refer cases involving the implementation of CBAs to the grievance machinery provided therein and to voluntary arbitration.

• Moreover, Article 260 of the Labor Code clarifies that such disputes must be referred first to the grievance machinery and, if unresolved within seven days, they shall automatically be referred to voluntary arbitration.

• Santuyo v. Remerco Garments, March 22, 2010

Grievance

• Individual employees cannot raise a grievance. • Only disputes involving the union and the

company shall be referred to the grievance machinery or voluntary arbitrators.

• A FEDERATION cannot raise a grievance on behalf of members of its local/chapter.

• Insular Hotel Employees Union v. Waterfront Insular Hotel, September 22, 2010

Arbitral Award• While an arbitral award cannot per se be categorized as an

agreement voluntarily entered into by the parties because it requires the intervention and imposing power of the State thru the Secretary of Labor when he assumes jurisdiction, the arbitral award can be considered an approximation of a collective bargaining agreement which would otherwise have been entered into by the parties, hence, it has the force and effect of a valid contract obligation.

• That the arbitral award was higher than that which was purportedly agreed upon in the MOA is of no moment. For the Secretary, in resolving the CBA deadlock, is not limited to considering the MOA as basis in computing the wage increases. He could, as he did, consider the financial documents submitted by respondent as well as the parties’ bargaining history and respondent’s financial outlook and improvements as stated in its website.

• It bears noting that since the filing and submission of the MOA did not have the effect of divesting the Secretary of his jurisdiction, or of automatically disposing the controversy, then neither should the provisions of the MOA restrict the Secretary’s leeway in deciding the matters before him.

•Cirtek Employees Labor Union v. Cirtek Electronics, November 15, 2010