00 Labor Midterms

1

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

Janz Hanna Ria N. Serrano I. Introduction/Review Guide

A. Definitions/Classification 1. Labor Law 2. Labor Standards 3. Labor Relations 4. Welfare Legislation

B. Justification/Basis/Ultimate Goal: Labor Legislation C. 7 Cardinal Rights of Workers

1987 Const., Art. XIII, Sec. 3, par 1-2. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.

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

D. Management Prerogative: Rule/Exception 1987 Const., Art. XIII, Sec. 3, par 3-4. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.

The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth. University of Immaculate Concepcion Inc. v. Sec of Labor. This court declared that it recognizes the exercise of management prerogatives and it often declines to interfere with the legitimate business fecisions of the employer. However, this privilege is not absolute, but subject to exceptions. One of these exceptions is when the SOLE assumes jurisdiction over labor disputes involving industries indispensable to the national interest.

E. Balancing of Interests 1987 Const., Art. XIII, Sec. 3, par. 4. supra

II. State Policy: Labor Relations A. Voluntary/Democratic Method of dispute settlement

1987 Const., Art. XIII, Sec. 3, par. 3. supra 1987 Const., Art. III, Sec. 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies LC, 211A(a). Declaration of Policy. - A. It is the policy of the State: (a) To promote and emphasize the primacy of free collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling labor or industrial disputes LC, 3. Declaration of basic policy. - The State shall afford protection to labor, promote full employment, ensure equal work opportunities regardless of sex, race or creed and regulate the relations between workers and employers. The State shall assure the rights of workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work

B. Trade Unionism 1987 Const., Art. III, Sec. 16, supra LC, 211A(b). To promote free trade unionism as an instrument for the enhancement of democracy and the promotion of social justice and development LC, 211A(c). To foster the free and voluntary organization of a strong and united labor movement LC, 212(g). "Labor organization" means any union or association of employees which exists in whole or in part for the purpose of collective bargaining or of dealing with employers concerning terms and conditions of employment. Book V, Rule VI, Sec. 1. Policy – It is the policy of the State to promote free trade unionism through expeditious procedures governing the choice of an exclusive bargaining agent. The determination of such exclusive bargaining agent is a non-litigious proceeding and, as far as practicable, shall be free from technicalities of law and procedure, provided only that in every case, the exclusive bargaining agent enjoys the majority support of all the employees in the bargaining unit. Def. Trade union activities

LC, 270(a), par. 2. "Trade union activities" shall mean:

(1) organization, formation and administration of labor organization; (2) negotiation and administration of collective bargaining agreements; (3) all forms of concerted union action; (4) organizing, managing, or assisting union conventions, meetings, rallies, referenda, teach-ins, seminars, conferences and institutes; (5) any form of participation or involvement in representation proceedings, representation elections, consent elections, union

elections; and (6) other activities or actions analogous to the foregoing.

C. Worker enlightenment LC, 211A(d). To promote the enlightenment of workers concerning their rights and obligations as union members and as employees LC, 241(p). It shall be the duty of any labor organization and its officers to inform its members on the provisions of its constitution and by-laws, collective bargaining agreement, the prevailing labor relations system and all their rights and obligations under existing labor laws. LC, 277(a). (a) All unions are authorized to collect reasonable membership fees, union dues, assessments and fines and other contributions for labor education and research, mutual death and hospitalization benefits, welfare fund, strike fund and credit and cooperative undertakings.

D. Adequate machinery for expeditious dispute settlement 1987 Const., Art. III, Sec. 16, supra LC, 211A(e). To provide an adequate administrative machinery for the expeditious settlement of labor or industrial disputes LC, 212(a). "Commission" means the National Labor Relations Commission or any of its divisions, as the case may be, as provided under this Code LC, 212(b). "Bureau" means the Bureau of Labor Relations and/or the Labor Relations Divisions in the regional offices established under Presidential Decree No. 1, in the Department of Labor. LC, 212(c). "Board" means the National Conciliation and Mediation Board established under Executive Order No. 126. LC, 212(d). "Council" means the Tripartite Voluntary Arbitration Advisory Council established under Executive Order No. 126, as amended 1. National Labor Relations Commission; Labor Arbiters

LC, 212(a). supra LC, 213. National Labor Relations Commission. - There shall be a National Labor Relations Commission which shall be attached to the Department of Labor and Employment solely for program and policy coordination only, composed of a Chairman and twenty-three (23) Members. Eight (8) members each shall be chosen only from among the nominees of the workers and employers organizations, respectively. The Chairman and the seven (7) remaining members shall come from the public sector, with the latter to be chosen preferably from among the incumbent Labor Arbiters. Upon assumption into office, the members nominated by the workers and employers organizations shall divest themselves of any affiliation with or interest in the federation or association to which they belong. The Commission may sit en banc or in eight (8) divisions, each composed of three (3) members. The Commission shall sit en banc only for purposes of promulgating rules and regulations governing the hearing and disposition of cases before any of its divisions and regional branches and formulating policies affecting its administration and operations. The Commission shall exercise its adjudicatory and all other

2


Janz Hanna Ria N. Serrano powers, functions, and duties through its divisions. Of the eight (8) divisions, the first, second, third, fourth, fifth and sixth divisions shall handle cases coming from the National Capital Region and other parts of Luzon; and the seventh and eighth divisions, cases from the Visayas and Mindanao, respectively: Provided, That the Commission sitting en banc may, on temporary or emergency basis, allow cases within the jurisdiction of any division to be heard and decided by any other division whose docket allows the additional workload and such transfer will not expose litigants to unnecessary additional expenses. The divisions of the Commission shall have exclusive appellate jurisdiction over cases within their respective territorial jurisdiction. The concurrence of two (2) Commissioners of a division shall be necessary for the pronouncement of a judgment or resolution. Whenever the required membership in a division is not complete and the concurrence of two (2) Commissioners to arrive at a judgment or resolution cannot be obtained, the Chairman shall designate such number of additional Commissioners from the other divisions as may be necessary. The conclusions of a division on any case submitted to it for decision shall be reached in consultation before the case is assigned to a member for the writing of the opinion. It shall be mandatory for the division to meet for purposes of the consultation ordained therein. A certification to this effect signed by the Presiding Commissioner of the division shall be issued, and a copy thereof attached to the record of the case and served upon the parties. The Chairman shall be the Presiding Commissioner of the first division, and the seven (7) other members from the public sector shall be the Presiding Commissioners of the second, third, fourth, fifth, sixth, seventh and eight divisions, respectively. In case of the effective absence or incapacity of the Chairman, the Presiding Commissioner of the second division shall be the Acting Chairman. The Chairman, aided by the Executive Clerk of the Commission, shall have administrative supervision over the Commission and its regional branches and all its personnel, including the Labor Arbiters. The Commission, when sitting en banc, shall be assisted by the same Executive Clerk, and, when acting thru its Divisions, by said Executive Clerk for its first division and seven (7) other Deputy Executive Clerks for the second, third, fourth fifth, sixth, seventh and eighth divisions, respectively, in the performance of such similar or equivalent functions and duties as are discharged by the Clerk of Court and Deputy Clerks of Court of the Court of Appeals. The Commission and its eight (8) divisions shall be assisted by the Commission Attorneys in its appellate and adjudicatory functions whose term shall be coterminous with the Commissioners with whom they are assigned. The Commission Attorneys shall be members of the Philippine Bar with at least one (1) year experience or exposure in the field of labor-management relations. They shall receive annual salaries and shall be entitled to the same allowances and benefits as those falling under Salary Grade twenty-six (SG 26). There shall be as many Commission Attorneys as may be necessary for the effective and efficient operations of the Commission but in no case more than three (3) assigned to the Office of the Chairman and each Commissioner. No Labor Arbiter shall be assigned to perform the functions of the Commission Attorney nor detailed to the office of any Commissioner. (As amended by Section 1, Republic Act No. 9347 [July 27, 2006] and as previously amended by Republic Act No. 7700 and Section 5, Republic Act No. 6715) LC, 217. Jurisdiction of the Labor Arbiters and the Commission. - (a) Except as otherwise provided under this Code, the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the following cases involving all workers, whether agricultural or non-agricultural:1. Unfair labor practice cases; 2. Termination disputes; 3. If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment; 4. Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations; 5. Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts; and 6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding five thousand pesos (P5,000.00) regardless of whether accompanied with a claim for reinstatement. (b) The Commission shall have exclusive appellate jurisdiction over all cases decided by Labor Arbiters. (c) Cases arising from the interpretation or implementation of collective bargaining agreements and those arising from the interpretation or enforcement of company personnel policies shall be disposed of by the Labor Arbiter by referring the same to the grievance machinery and voluntary arbitration as may be provided in said agreements. (As amended by Section 9, Republic Act No. 6715, March 21, 1989).

2. National Conciliation Mediation Board LC, 212(c). supra LC, 250(c). If the dispute is not settled, the Board shall intervene upon request of either or both parties or at its own initiative and immediately call the parties to conciliation meetings. The Board shall have the power to issue subpoenas requiring the attendance of the parties to such meetings. It shall be the duty of the parties to participate fully and promptly in the conciliation meetings the Board may call LC, 250(d). During the conciliation proceedings in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes LC, 250(e). The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to a voluntary arbitrator. (As amended by Section 20, Republic Act No. 6715, March 21, 1989)

3. Bureau of Labor Relations; Labor Relations Division LC, 212(b). supra LC, 226. Bureau of Labor Relations. - The Bureau of Labor Relations and the Labor Relations Divisions in the regional offices of the Department of Labor, shall have original and exclusive authority to act, at their own initiative or upon request of either or both parties, on all inter-union and intra-union conflicts, and all disputes, grievances or problems arising from or affecting labor-management relations in all workplaces, whether agricultural or non-agricultural, except those arising from the implementation or interpretation of collective bargaining agreements which shall be the subject of grievance procedure and/or voluntary arbitration. The Bureau shall have fifteen (15) working days to act on labor cases before it, subject to extension by agreement of the parties. (As amended by Section 14, Republic Act No. 6715, March 21, 1989).

4. Voluntary Arbitration Advisory Council LC, 212(a), supra LC, 260. Grievance machinery and voluntary arbitration. - The parties to a Collective Bargaining Agreement shall include therein provisions that will ensure the mutual observance of its terms and conditions. They shall establish a machinery for the adjustment and resolution of grievances arising from the interpretation or implementation of their Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies. All grievances submitted to the grievance machinery which are not settled within seven (7) calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the Collective Bargaining Agreement. For this purpose, parties to a Collective Bargaining Agreement shall name and designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators, or include in the agreement a procedure for the selection of such Voluntary Arbitrator or panel of Voluntary Arbitrators, preferably from the listing of qualified Voluntary Arbitrators duly accredited by the Board. In case the parties fail to select a

3


Janz Hanna Ria N. Serrano Voluntary Arbitrator or panel of Voluntary Arbitrators, the Board shall designate the Voluntary Arbitrator or panel of Voluntary Arbitrators, as may be necessary, pursuant to the selection procedure agreed upon in the Collective Bargaining Agreement, which shall act with the same force and effect as if the Arbitrator or panel of Arbitrators has been selected by the parties as described above. LC, 261. Jurisdiction of Voluntary Arbitrators or panel of Voluntary Arbitrators. - The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have original and exclusive jurisdiction to hear and decide all unresolved grievances arising from the interpretation or implementation of the Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies referred to in the immediately preceding article. Accordingly, violations of a Collective Bargaining Agreement, except those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as grievances under the Collective Bargaining Agreement. For purposes of this article, gross violations of Collective Bargaining Agreement shall mean flagrant and/or malicious refusal to comply with the economic provisions of such agreement. The Commission, its Regional Offices and the Regional Directors of the Department of Labor and Employment shall not entertain disputes, grievances or matters under the exclusive and original jurisdiction of the Voluntary Arbitrator or panel of Voluntary Arbitrators and shall immediately dispose and refer the same to the Grievance Machinery or Voluntary Arbitration provided in the Collective Bargaining Agreement LC, 262. Jurisdiction over other labor disputes. - The Voluntary Arbitrator or panel of Voluntary Arbitrators, upon agreement of the parties, shall also hear and decide all other labor disputes including unfair labor practices and bargaining deadlocks.

5. Administrative Intervention for Dispute Avoidance DOLE Circular No. 1, s.2006. see full text

E. Industrial peace LC, 211A(f). To ensure a stable but dynamic and just industrial peace LC, 277(g). The Ministry shall help promote and gradually develop, with the agreement of labor organizations and employers, labor-management cooperation programs at appropriate levels of the enterprise based on the shared responsibility and mutual respect in order to ensure industrial peace and improvement in productivity, working conditions and the quality of working life. (Incorporated by Batas Pambansa Bilang 130, August 21, 1981). Const, Art. XIII, Sec. 3, par. 3 supra

F. Worker participation in decision and policy making processes affecting rights, duties and welfare LC, 211A(g). To ensure the participation of workers in decision and policy-making processes affecting their rights, duties and welfare. LC, 255, par. 2. Any provision of law to the contrary notwithstanding, workers shall have the right, subject to such rules and regulations as the Secretary of Labor and Employment may promulgate, to participate in policy and decision-making processes of the establishment where they are employed insofar as said processes will directly affect their rights, benefits and welfare. For this purpose, workers and employers may form labor-management councils: Provided, That the representatives of the workers in such labor-management councils shall be elected by at least the majority of all employees in said establishment. (As amended by Section 22, Republic Act No. 6715, March 21, 1989). LC, 277(g) supra Const, Art. XIII, Sec. 3, par. 3 supra

III. Right to Self-Organization A. Basis of Right to Self-Organization

1. ILO Convention No. 87 (Freedom of Association & Protection of Right to Organize, 1948) see full text ILO Convention No. 98 (Application of the Principles of the Right to Organize and Bargain Collectively, 1949) see full text

2. U.S. Laws a. National Labor Relations Act (Wagner Act) see full text b. US Labor-Management Relations Act of 1947 (Taft-Hartley Act) see full text

3. Philippine sources a. 1987 Consti

Art. II, Sec. 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare Art. III, Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. Art. III, Sec. 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. Art. XIII, Sec. 3 supra Art. IX(B), Sec 2(5) The right to self-organization shall not be denied to government employees. 1935 Const, Art III, Sec 1(6). The right to form associations or societies for purposes not contrary to law shall not be abridged. 1935 Const, Art III, Sec 1(8). No law shall be passed abridging the freedom of speech, or of the press, or the rights of the people peaceably to assemble and petition the Government for redress of grievances. 1973 Const, Art. IV, Sec. 7. The right to form associations or societies for purposes not contrary to the law shall not be abridged. 1973 Const, Art. IV, Sec. 9. No law shall be passed abridging the freedom of speech, or the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. NEECOI Employees Assoc. v. NLRC. In a number of cases, this Court relaxed the rule to resolve controversies on the merits. We relaxed the requirement of posting a supersedeas bond for the perfection of an appeal, where there was substantial compliance with the rule, so that on balance ,we made technical considerations to give way to equity and justice.

b. Labor Code LC, 243. Coverage and employees’ right to self-organization. – All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions, whether operating for profit or not, shall have the right to self-organization and to form, join, or assist labor organizations of their own choosing for purposes of collective bargaining. Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers may form labor organizations for their mutual aid and protection. (As amended by Batas Pambansa Bilang 70, May 1, 1980). LC, 244. Right of employees in the public service. – Employees of government corporations established under the Corporation Code shall have the right to organize and to bargain collectively with their respective employers. All other employees in the civil service shall have the right to form associations for purposes not contrary to law. (As amended by Executive Order No. 111, December 24, 1986). LC, 245. Ineligibility of managerial employees to join any labor organization; Right of Supervisory Employees. - Managerial employees are not eligible to join, assist or form any labor organization. Supervisory employees shall not be eligible for membership in the collective bargaining unit of the rank-and-file employees but may join, assist or form separate collective bargaining units and/or legitimate labor organizations of their own. The rank-and-file union and the supervisors’ union operating within the same establishment may join the same federation or national union. (As amended by Section 18, Republic Act No. 6715, March 21, 1989 and Section 8, Republic Act No. 9481 which lapsed into law on May 25, 2007 and became effective on June 14, 2007). Implementing Rules, Book V, Rule II, Sec. 2. All persons employed in commercial, industrial and agricultural enterprises, including employees of government owned or controlled corporations without original charters established under the Corporation Code, as well as employees of religious charitable, medical or educational institutions whether operating for profit or not, shall have the right to self-organization and to form, join or assist labor unions for purposes of collective bargaining. Provided, however that supervisory employees shall not be eligible for membership in a labor union of the rank-and-file employees but may form, join or assist separate labor unions of their own. Managerial employees shall not be eligible to form, join or assist any labor unions for purposes of collective bargaining. Alien employees with valid work permits issued by the Department may exercise the right to self-organization and join or assist labor unions for purposes of collective bargaining if they are nationals of a country which grants the same or similar rights to Filipino workers, as certified by the Department of Foreign Affairs.

4


Janz Hanna Ria N. Serrano For purposes of this section, 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 All other workers, including ambulant, intermittent and other workers, the self-employed, rural workers and those without definite employers may form labor organizations for their mutual aid and protection and other legitimate purposes except collective bargaining.

c. Pre-labor code Commonwealth Act No. 103 Industrial Peace Act (RA 875 of 1953)

B. Extent and Scope of Right LC, 246. Non-abridgment of right to self-organization. – It shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with employees and workers in their exercise of the right to self-organization. Such right shall include the right to form, join, or assist labor organizations for the purpose of collective bargaining through representatives of their own choosing and to engage in lawful concerted activities for the same purpose or for their mutual aid and protection, subject to the provisions of Article 264 of this Code. (As amended by Batas Pambansa Bilang 70, May 1, 1980). Reyes v. Trajano. Guaranteed to all employees or workers is the “right to self organization and to form, join, or assist labor organizations of their own choosing for purposes of collective bargaining.” || The right to self –organization includes the right to organize or affiliate with a labor union or determine which of 2 or more unions in an establishment to join, and to engage in concerted activities with co-workers for purposes of collective bargaining. Logically, the right NOT to join is subsumed in the right to join. The right to form or join a labor organization necessarily includes the right to refuse or refrain from exercising said right. Kapatiran v. Calleja. The right of the members of INK sect not to join a labor union for being contrary to their religious beliefs does not bar the members from that sect from forming their own union. Pan-Am World v. Pan-Am Employees Assoc. The greater offense is to the labor movement itself, more specifically to the right of self-organization. There is both a constitutional and statutory recognition that labors have the right to form unions to take care of their interests vis-à-vis their employers. their freedom organizations would be rendered nugatory if they could not choose their own leaders to speak on their behalf and to bargain for them.

C. Covered Employees/Workers 1987 Const, Art. III, Sec. 8 supra Art XIII Sec. 3 supra Book V, Rule II, Sec. 2. supra 1. Rule

LC, 243. supra Book V, Rule II, Sec. 2, supra FEU-Dr. Nicanor Reyes Med. Foundation v. Trajano. Under A243, there is no doubt that rank and file employees of non-profit medical institutions are now permitted to form, organize or join labor unions of their choice for purposes of collective bargaining.

2. Government Corporate Employees LC, 244. Right of employees in the public service. – Employees of government corporations established under the Corporation Code shall have the right to organize and to bargain collectively with their respective employers. All other employees in the civil service shall have the right to form associations for purposes not contrary to law. (As amended by Executive Order No. 111, December 24, 1986). LC, IX-B Sec 2(1). The civil service shall be administered by the Civil Service Commission composed of a Chairman and two Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, with proven capacity for public administration, and must not have been candidates for any elective position in the elections immediately preceding their appointment. LC, IX-B Sec 2(5). The right to self-organization shall not be denied to government employees CS Circular EO 180. Book V Rule II, Sec. 2 par. 1. supra

3. Supervisory employees LC, 245. Ineligibility of managerial employees to join any labor organization; Right of Supervisory Employees. - Managerial employees are not eligible to join, assist or form any labor organization. Supervisory employees shall not be eligible for membership in the collective bargaining unit of the rank-and-file employees but may join, assist or form separate collective bargaining units and/or legitimate labor organizations of their own. The rank-and-file union and the supervisors’ union operating within the same establishment may join the same federation or national union. (As amended by Section 18, Republic Act No. 6715, March 21, 1989 and Section 8, Republic Act No. 9481 which lapsed into law on May 25, 2007 and became effective on June 14, 2007). LC, 212(m). "Managerial employee" is one who is vested with the powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees. Supervisory employees are those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. All employees not falling within any of the above definitions are considered rank-and-file employees for purposes of this Book. Book V, Rule I, Sec. 1(xx). “Supervisory employee” refers to an employee who, in the interest of the employer, effectively recommends managerial actions and the exercise of such authority is not routinary or clerical but requires the use of independent judgment Book V, Rule I, Sec. 1(hh). “Managerial employee” refers to an employee who is vested with powers or prerogatives to lay down and execute management policies or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees. Book V, Rule I, Sec. 1(nn). “Rank-and-file employee” refers to an employee whose functions are neither managerial or supervisory in nature. Toyota Motor Phil v. TPCLU. The rationale behind the Code’s exclusion of supervisors from unions of rank-and-file employees is that such employees, while in the performance of supervisory functions, become the alter ego of management in the making and the implementing of key decisions at the sub-managerial level. Certainly, it would be difficult to find unity or mutuality of interests in a bargaining unit consisting of a mixture of rank-and-file and supervisory employees. And this is so because the fundamental test of a bargaining unit’s acceptability is whether or not such unit will best advance to all employees within the unit the proper exercise of their collective bargaining rights. Tagaytay Highlands v. THEU. While petitioner submitted a list of its employees with their corresponding job titles and ranks, there is nothing mentioned about the supervisors’ respective duties, powers and prerogatives that would show that they can effectively recommend managerial actions which require the use of independent judgment. || Designation should be reconciled with the actual job description. The mere fact that an employee is designated manager does not necessarily make him one.

4. Aliens LC, 269. Prohibition against aliens; exceptions. - All aliens, natural or juridical, as well as foreign organizations are strictly prohibited from engaging directly or indirectly in all forms of trade union activities without prejudice to normal contacts between Philippine labor unions and recognized international labor centers: Provided, however, That aliens working in the country with valid permits issued by the Department of Labor and Employment, may exercise the right to self-organization and join or assist labor organizations of their own choosing for purposes of collective bargaining: Provided, further, That said aliens are nationals of a country which grants the same or similar rights to Filipino workers. (As amended by Section 29, Republic Act No. 6715, March 21, 1989). LC, 270. Regulation of foreign assistance. - (a) No foreign individual, organization or entity may give any donations, grants or other forms of assistance, in cash or in kind, directly or indirectly, to any labor organization, group of workers or any auxiliary thereof, such as cooperatives, credit unions and institutions engaged in research, education or communication, in relation to trade union activities, without prior permission by the Secretary of Labor. "Trade union activities" shall mean: (1) organization, formation and administration of labor organization; (2) negotiation and administration of collective bargaining agreements; (3) all forms of concerted union action; (4) organizing, managing, or assisting union conventions, meetings,

5


Janz Hanna Ria N. Serrano rallies, referenda, teach-ins, seminars, conferences and institutes; (5) any form of participation or involvement in representation proceedings, representation elections, consent elections, union elections; and (6) other activities or actions analogous to the foregoing. (b) This prohibition shall equally apply to foreign donations, grants or other forms of assistance, in cash or in kind, given directly or indirectly to any employer or employer’s organization to support any activity or activities affecting trade unions. (c) The Secretary of Labor shall promulgate rules and regulations to regulate and control the giving and receiving of such donations, grants, or other forms of assistance, including the mandatory reporting of the amounts of the donations or grants, the specific recipients thereof, the projects or activities proposed to be supported, and their duration. Book V, Rule 2, Sec. 2, par. 1, 3rd sentence, supra

5. Security guards EO 111 [12/24/1986]. See full text. Manila Electric Co. v. Sec. EO 111 eliminated the provision on the disqualification of security guards. With the elimination, security guards are thus free to join a rank and file organization.

D. Excluded Employees/Workers 1. Managerial Employees

LC, 245. supra LC, 82. As used herein, "managerial employees" refer to those whose primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof, and to other officers or members of the managerial staff. LC, 212(m). supra Book V Rule II, Sec. 2, supra Book V, Rule 1, Sec. 1(xx) supra Book V, Rule 1, Sec. 1(hh) supra Book V, Rule 1, Sec. 1(nn) supra AD Gothong Mfg. v. NLRC. The test of "supervisory" or "managerial status" depends on whether a person possess authority to act in the interest of his employer in the matter specified in Article 212 (k) of the Labor Code and Section 1 (m) of its Implementing Rules and whether such authority is not merely routinary or clerical in nature, but requires the use of independent judgment. Thus, where such recommendatory powers as in the case at bar, are subject to evaluation, review and final action by the department heads and other higher executives of the company, the same, although present, are not exercise of independent judgment as required by law. Paper Industries Corp v. Laguesma. In the petition before us, a thorough dissection of the job description of the concerned supervisory employees and section heads indisputably show that they are not actually managerial but only supervisory employees since they do not lay down company policies. PICOP's contention that the subject section heads and unit managers exercise the authority to hire and fire is ambiguous and quite misleading for the reason that any authority they exercise is not supreme but merely advisory in character. Theirs is not a final determination of the company policies inasmuch as any action taken by them on matters relative to hiring, promotion, transfer, suspension and termination of employees is still subject to confirmation and approval by their respective superior. Thus, where such power, which is in effect recommendatory in character, is subject to evaluation, review and final action by the department heads and other higher executives of the company, the same, although present, is not effective and not an exercise of independent judgment as required by law.

2. Confidential employees San Miguel Corp. Supervisors v. Laguesma. 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. 5 The two criteria are cumulative, and both must be met if an employee is to be considered a confidential employee — that is, the confidential relationship must exist between the employee and his supervisor, and the supervisor must handle the prescribed responsibilities relating to labor relations. || 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." The broad rationale behind this rule is that employees should not be placed in a position involving a potential conflict of interests. 7 "Management should not be required to handle labor relations matters through employees who are represented by the union with which the company is required to deal and who in the normal performance of their duties may obtain advance information of the company's position with regard to contract negotiations, the disposition of grievances, or other labor relations matters." 8 Pepsi-Cola v. Sec. of Labor. Designation should be reconciled with the actual job description of subject employees. A careful scrutiny of their job description indicates that they don't lay down company policies. Theirs is not a final determination of the company policies since they have to report to their respective superior. The mere fact that an employee is designated manager does not necessarily make him one. Otherwise, there would be an absurd situation where one can be given the title just to be deprived of the right to be a member of a union SCBEU v. SCB. Petitioner insists that the foregoing employees are not confidential employees; however, it failed to buttress its claim. Aside from its generalized arguments, and despite the Secretary's finding that there was no evidence to support it, petitioner still failed to substantiate its claim. Petitioner did not even bother to state the nature of the duties and functions of these employees, depriving the Court of any basis on which it may be concluded that they are indeed confidential employees

3. Workers-Members of a Cooperative CENECO v. DOLE. The argument of CENECO that the withdrawal was merely to subvert the ruling of this Court in the BATANGAS case is without merit. The case referred to merely declared that employees who are at the same time members of the cooperative cannot join labor unions for purposes of collective bargaining. However, nowhere in said case is it stated that member-employees are prohibited from withdrawing their membership in the cooperative in order to join a labor union.

4. Employees of international organizations International Catholic Migration Commission v. Calleja. The grant of immunity from local jurisdiction to ICMC and IRRI is clearly necessitated by their international character and respective purposes. The objective is to avoid the danger of partiality and interference by the host country in their internal workings. The exercise of jurisdiction by the Department of Labor in these instances would defeat the very purpose of immunity, which is to shield the affairs of international organizations, in accordance with international practice, from political pressure or control by the host country to the prejudice of member States of the organization, and to ensure the unhampered performance of their functions. ICMC's and IRRI's immunity from local jurisdiction by no means deprives labor of its basic rights, which are guaranteed by Article II, Section 18, 14 Article III, Section 8, 15 and Article XIII, Section 3 (supra), of the 1987 Constitution; and implemented by Articles 243 and 246 of the Labor Code, 16 relied on by the BLR Director and by Kapisanan.

5. Effect of including employees outside the bargaining unit LC, 245-A. Effect of inclusion as members of employees outside the bargaining unit. - The inclusion as union members of employees outside the bargaining unit shall not be a ground for the cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership of said union. (Introduced as new provision by Section 9, Republic Act No. 9481 which lapsed into law on May 25, 2007 and became effective on June 14, 2007).

6. Non-Employees LC, 243. supra Book V, Rule II, Sec. 2, par. 3. Supra Singer Sewing Machine Co. v. Drilon. The Agreement confirms the status of the collecting agent in this case as an independent contractor not only because he is explicitly described as such but also because the provisions permit him to perform collection services for the company without being subject to the control of the latter except only as to the result of his work. After a careful analysis of the contents of the agreement, we rule in favor of the petitioner. || The Court finds that since private respondents are not employees of the Company, they are not entitled to the constitutional right to join or form a labor organization for purposes of collective bargaining. Accordingly, there is no constitutional and legal basis for their "union" to be granted their petition for direct certification.

6


Janz Hanna Ria N. Serrano

E. Party Protected Mactan Workers Union v. Aboitiz. The benefits of a collective bargaining agreement extend to the laborers and employees in the CBU, including those who do not belong to the chosen bargaining labor organization. Any other view would be a discrimination on which the law frowns upon.

F. Sanctions for Violation of Right LC, 246. Non-abridgment of right to self-organization. – It shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with employees and workers in their exercise of the right to self-organization. Such right shall include the right to form, join, or assist labor organizations for the purpose of collective bargaining through representatives of their own choosing and to engage in lawful concerted activities for the same purpose or for their mutual aid and protection, subject to the provisions of Article 264 of this Code. (As amended by Batas Pambansa Bilang 70, May 1, 1980). LC, 248. Unfair labor practices of employers. – It shall be unlawful for an employer to commit any of the following unfair labor practice:

(a) To interfere with, restrain or coerce employees in the exercise of their right to self-organization;

(b) To require as a condition of employment that a person or an employee shall not join a labor organization or shall with-draw from one to which he belongs;

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

(d) To initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization, including the giving of financial or other support to it or its organizers or supporters;

(e) To discriminate in regard to wages, hours of work and other terms and conditions of employment in order to encourage or discourage membership in any labor organization. Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment, except those employees who are already members of another union at the time of the signing of the collective bargaining agreement. Employees of an appropriate bargaining unit who are not members of the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such non-union members accept the benefits under the collective bargaining agreement: Provided, that the individual authorization required under Article 242, paragraph (o) of this Code shall not apply to the non-members of the recognized collective bargaining agent;

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

(g) To violate the duty to bargain collectively as prescribed by this Code;

(h) To pay negotiation or attorney’s fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute; or

(i) To violate a collective bargaining agreement. The provisions of the preceding paragraph notwithstanding, only the officers and agents of corporations, associations or partnerships who have actually participated in, authorized or ratified unfair labor practices shall be held criminally liable. (As amended by Batas Pambansa Bilang 130, August 21, 1981). LC, 249. Unfair labor practices of labor organizations. - It shall be unfair labor practice for a labor organization, its officers, agents or representatives:

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

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

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

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

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

(f) To violate a collective bargaining agreement. The provisions of the preceding paragraph notwithstanding, only the officers, members of governing boards, representatives or agents or members of labor associations or organizations who have actually participated in, authorized or ratified unfair labor practices shall be held criminally liable. (As amended by Batas Pambansa Bilang 130, August 21, 1981). LC, 288. Penalties. - Except as otherwise provided in this Code, or unless the acts complained of hinge on a question of interpretation or implementation of ambiguous provisions of an existing collective bargaining agreement, any violation of the provisions of this Code declared to be unlawful or penal in nature shall be punished with a fine of not less than One Thousand Pesos (P1,000.00) nor more than Ten Thousand Pesos (P10,000.00) or imprisonment of not less than three months nor more than three years, or both such fine and imprisonment at the discretion of the court. In addition to such penalty, any alien found guilty shall be summarily deported upon completion of service of sentence. Any provision of law to the contrary notwithstanding, any criminal offense punished in this Code, shall be under the concurrent jurisdiction of the Municipal or City Courts and the Courts of First Instance. (As amended by Section 3, Batas Pambansa Bilang 70) LC, 289. Who are liable when committed by other than natural person. - If the offense is committed by a corporation, trust, firm, partnership, association or any other entity, the penalty shall be imposed upon the guilty officer or officers of such corporation, trust, firm, partnership, association or entity. LC, 272. Penalties. - (a) Any person violating any of the provisions of Article 264 of this Code shall be punished by a fine of not less than one thousand pesos (P1,000.00) nor more than ten thousand pesos (P10,000.00) and/or imprisonment for not less than three months nor more than three (3) years, or both such fine and imprisonment, at the discretion of the court. Prosecution under this provision shall preclude prosecution for the same act under the Revised Penal Code, and vice versa. (b) Upon the recommendation of the Minister of Labor and Employment and the Minister of National Defense, foreigners who violate the provisions of this Title shall be subject to immediate and summary deportation by the Commission on Immigration and Deportation and shall be permanently barred from re-entering the country without the special permission of the President of the Philippines. (As amended by Section 16, Batas Pambansa Bilang 130 and Section 7, Batas Pambansa Bilang 227)

in relation to LC, 264. Prohibited activities. - (a) No labor organization or employer shall declare a strike or lockout without first having bargained collectively in accordance with Title VII of this Book or without first having filed the notice required in the preceding Article or without the necessary strike or lockout vote first having been obtained and reported to the Ministry. No strike or lockout shall be declared after assumption of jurisdiction by the President or the Minister or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout. Any worker whose employment has been terminated as a consequence of any unlawful lockout shall be entitled to reinstatement with full backwages. Any union officer who knowingly participates in an illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status: Provided, That mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the employer during such lawful strike.

7


Janz Hanna Ria N. Serrano (b) No person shall obstruct, impede, or interfere with, by force, violence, coercion, threats or intimidation, any peaceful picketing by employees during any labor controversy or in the exercise of the right to self-organization or collective bargaining, or shall aid or abet such obstruction or interference. (c) No employer shall use or employ any strike-breaker, nor shall any person be employed as a strike-breaker. (d) No public official or employee, including officers and personnel of the New Armed Forces of the Philippines or the Integrated National Police, or armed person, shall bring in, introduce or escort in any manner, any individual who seeks to replace strikers in entering or leaving the premises of a strike area, or work in place of the strikers. The police force shall keep out of the picket lines unless actual violence or other criminal acts occur therein: Provided, That nothing herein shall be interpreted to prevent any public officer from taking any measure necessary to maintain peace and order, protect life and property, and/or enforce the law and legal order. (As amended by Executive Order No. 111, December 24, 1986). (e) No person engaged in picketing shall commit any act of violence, coercion or intimidation or obstruct the free ingress to or egress from the employer’s premises for lawful purposes, or obstruct public thoroughfares. (As amended by Batas Pambansa Bilang 227, June 1, 1982).

Book V, Rule XXII, Sec. 15. Criminal Prosecution – The regular courts shall have jurisdiction over any criminal action under Article 272 of the Labor Code.

IV. Labor Organization A. Policy

LC, 211A(b). To promote free trade unionism as an instrument for the enhancement of democracy and the promotion of social justice and development LC, 211A(c). To foster the free and voluntary organization of a strong and united labor movement LC, 211A(g). To ensure the participation of workers in decision and policy-making processes affecting their rights, duties and welfare. Book V, Rule VI, Sec. 1. supra

B. Definition: Labor Organizations/Unions LC, 211A(b) supra LC, 211A(c) supra LC, 211A(g) supra LC, 212(g). "Labor organization" means any union or association of employees which exists in whole or in part for the purpose of collective bargaining or of dealing with employers concerning terms and conditions of employment. LC, 212(h). "Legitimate labor organization" means any labor organization duly registered with the Department of Labor and Employment, and includes any branch or local thereof. LC, 212(i). "Company union" means any labor organization whose formation, function or administration has been assisted by any act defined as unfair labor practice by this Code. LC, 212(j). "Bargaining representative" means a legitimate labor organization whether or not employed by the employer. Book V, Rule I, Sec. 1(cc). see below Book V, Rule I, Sec. 1(ee). see below D.O. 40 – B. 03. Book V, Rule I, Sec. 1(ff). see below Book V, Rule I, Sec. 1(zz). see below Book V, Rule I, Sec. 1(ccc). see below Book V, Rule I, Sec. 1(t). “Exclusive Bargaining Representative” refers to a legitimate labor union duly recognized or certified as the sole and exclusive bargaining representative or agent of all the employees in a bargaining unit. Book V, Rule I, Sec. 1(i). “Chartered Local” refers to a labor organization in the private sector operating at the enterprise level that acquired legal personality through the issuance of a charter certificate by a duly registered federation or national union, and reported to the Regional Office in accordance with Rule III, Section2-E of these Rules. 1. Labor Organization

LC, 212(g), supra. Book V, Rule I, Sec. 1(cc). “Labor Organization” refers to any union or association of employees in the private sector which exists in whole or in part for the purpose of collective bargaining, mutual aid, interest, cooperation, protection, or other lawful purposes Union – Book V, Rule I, Sec. 1(zz). “Union” refers to any labor organization in the private sector organized for collective bargaining ang for other legitimate purposes. Worker’s Association – Book V, Rule I, Sec. 1(ccc). “Workers’ Association” refers to an association of workers organized for the mutual aid and protection of its members or for any legitimate purpose other than collective bargaining

2. Legitimate labor organization LC, 212(h), supra Book V, Rule I, Sec. 1(ee). “Legitimate Labor Organization” refers to any labor organization in the private sector registered or reported with the Department in accordance with Rules III and IV of these Rules Legitimate Workers Association -- Book V, Rule I, Sec. 1(ff). “Legitimate Workers Association” refers to an association of workers organied for mutual aid and protection of its members or of any legitimate purpose other than collective bargaining registered with the department in accordance with Rule III, Sections 2-C and 2-D of these rules

3. Company Union LC, 212(i), supra LC, 248(d). Unfair labor practices of employers. – It shall be unlawful for an employer to commit any of the following unfair labor practice: (d) To initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization, including the giving of financial or other support to it or its organizers or supporters

C. Union Rationale Guijarno v. CIR. Where does that leave a labor union, it may be asked. Correctly understood, it is nothing but the means of assuring that such fundamental objectives would be achieved. It is the instrumentality through which an individual laborer who is helpless as against a powerful employer may, through concerted effort and activity, achieve the goal of economic well-being. That is the philosophy underlying the Industrial Peace Act. 33 For, rightly has it been said that workers unorganized are weak; workers organized are strong. Necessarily then, they join labor unions.

D. Government Regulation 1. Union Registration: Procedure

a. Requirements LC, 234, as amended by RA9481. Requirements of registration. - A federation, national union or industry or trade union center or an independent union shall acquire legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor organizations upon issuance of the certificate of registration based on the following requirements:

(a) Fifty pesos (P50.00) registration fee;

(b) The names of its officers, their addresses, the principal address of the labor organization, the minutes of the organizational meetings and the list of the workers who participated in such meetings;

(c) In case the applicant is an independent union, the names of all its members comprising at least twenty percent (20%) of all the employees in the bargaining unit where it seeks to operate;

(d) If the applicant union has been in existence for one or more years, copies of its annual financial reports; and

8



(e) Four copies of the constitution and by-laws of the applicant union, minutes of its adoption or ratification, and the list of the members who participated in it. (As amended by Batas Pambansa Bilang 130, August 21, 1981 and Section 1, Republic Act No. 9481 which lapsed into law on May 25, 2007 and became effective on June 14, 2007).

LC, 234-A. Chartering and creation of a local chapter. - A duly registered federation or national union may directly create a local chapter by issuing a charter certificate indicating the establishment of the local chapter. The chapter shall acquire legal personality only for purposes of filing a petition for certification election from the date it was issued a charter certificate. The chapter shall be entitled to all other rights and privileges of a legitimate labor organization only upon the submission of the following documents in addition to its charter certificate:

(a) The names of the chapter’s officers, their addresses, and the principal office of the chapter; and

(b) The chapter’s constitution and by-laws: Provided, That where the chapter’s constitution and by-laws are the same as that of the federation or the national union, this fact shall be indicated accordingly.

The additional supporting requirements shall be certified under oath by the secretary or treasurer of the chapter and attested by its president. (As inserted by Section 2, Republic Act No. 9481 which lapsed into law on May 25, 2007 and became effective on June 14, 2007). LC, 237. Additional requirements for federations or national unions. - Subject to Article 238, if the applicant for registration is a federation or a national union, it shall, in addition to the requirements of the preceding Articles, submit the following:

(a) Proof of the affiliation of at least ten (10) locals or chapters, each of which must be a duly recognized collective bargaining agent in the establishment or industry in which it operates, supporting the registration of such applicant federation or national union; and

(b) The names and addresses of the companies where the locals or chapters operate and the list of all the members in each company involved

LC, 235. Action on application. - The Bureau shall act on all applications for registration within thirty (30) days from filing. All requisite documents and papers shall be certified under oath by the secretary or the treasurer of the organization, as the case may be, and attested to by its president Book V, Rule III, Sec. 2. Requirements for application. – A. The application for registration for registration of an independent labor union shall be accompanied by the following documents:

(1) The name of the applicant labor union, its principal address, the name of its officers and their respective addresses, approximate number of employees in the bargaining unit where it seeks to operate, with a statement that is not reported as a chartered local of any federation or national union;

(2) The minutes of the organizational meeting(s) and the list of employees who participated in the said meeting(s); (3) The name of all its members comprising at least 20% of the employees in the bargaining unit; (4) The annual financial reports if the applicant has been in existence for one or more years unless it has not collected any amount

from the member, in which case a statement to this effect shall be included in the application; (5) The applicant’s constitution and by-laws, minutes of its adoption or ratification, and the list of the members who participated in

it. The list of ratifying members shall be dispensed with where the constitution and by-laws was ratified or adopted during the organizational meeting. In such a case, the factual circumstances of the ratification shall be recorded in the minutes of the organization meeting(s).

B. The application for registration of federations and national unions shall be accompanied by the following documents: (1) a statement indicating the name of the applicant labor union, its principal address, the name of its officers and their respective

addresses; (2) The minutes of the organizational meeting(s) and the list of employees who participated in the said meeting(s); (3) The annual financial reports if the applicant has been in existence for one or more years unless it has not collected any amount

from the member, in which case a statement to this effect shall be included in the application; (4) The applicant union’s constitution and by-laws, minutes of its adoption or ratification, and the list of the members who

participated in it. The list of ratifying members shall be dispensed with where the constitution and by-laws was ratified or adopted during the organizational meeting(s). In such a case, the factual circumstances of the ratification shall be recorded in the minutes of the organization meeting(s);

(5) The resolution of affiliation of at least ten (10) legitimate labor organization, whether independent union or chartered locals, each of which must be a duly certified or recognized bargaining agent in the establishment where it seeks to operate; and,

(6) The name and addresses of the companies where the affiliates operate and the list of all the members in each company involved. Labor organizations operating within an identified industry may also apply for registration as a federation or national union within the specified industry by submitting to the Bureau the same set of documents. C. The application for registration of a workers’ association shall be accompanied by the following documents:

(1) the name of the applicant association, its principal address, the name of its officers and their respective addresses; (2) The minutes of the organizational meeting(s) and the list of employees who participated in the said meeting(s) (3) The financial reports if the applicant has been in existence for one or more years unless it has not collected any amount from the

member, in which case a statement to this effect shall be included in the application; (4) The applicant’s constitution and by-laws to which must be attached the names of ratifying members, the minutes of its adoption

or ratification of the constitution and by-laws and the date when the ratification was made, unless ratification was done in the organization meeting(s), in which case, such fact shall be reflected in the minutes of the organization meeting(s).

D. Application for registration of a worker’s association operating in more than one region shall be accompanied, in addition to the requirements in the preceding subsection, by a resolution of membership in each member association, duly approved by its board of directors. E. The report of creation of a chartered local shall be accompanied by a charter certification issued by the federation or national union indicating the creation of establishment of the chartered local. 1. 20% membership requirement – LC, 234.

Mariwasa Siam Ceramics v. Sec. of Labor. Nevertheless, even assuming the veracity of the affidavits of recantation, the legitimacy of respondent as a labor organization must be affirmed. While it is true that the withdrawal of support may be considered as a resignation from the union, the fact remains that at the time of the union’s application for registration, the affiants were members of respondent and they comprised more than the required 20% membership for purposes of registration as a labor union. Article 234 of the Labor Code merely requires a 20% minimum membership during the application for union registration. It does not mandate that a union must maintain the 20% minimum membership requirement all throughout its existence.

2. Registration Proceeding Book V, Rule I, Sec, 1(qq). Book V, Rule I, Sec. 1(qq). “Registration” refers to the process of determining whether the application for registration of a union or workers’ association and collective bargaining agreement complies with the documentary requirements for registration prescribed in Rule III, IV and XVII of these Rules 1st mode: issuance of union registration

LC, 234. supra LC, 235. supra

9


Janz Hanna Ria N. Serrano Book V, Rule III, Sec. 2(A). supra

2nd mode: Union affiliation LC, 234-A. supra Book V, Rule I, Sec. 1(a). “Affiliate” refers to an independent union affiliated with a federation, national union or a chartered local which was subsequently granted independent registration but did not disaffiliate from its federation, reported to the Regional Office and the Bureau in accordance with Rule III, Sections 6 and 7 of these Rules Book V, Rule III, Sec. 2(E), as amended. supra

Coastal Subic Bay Terminal v. DOLE. Under the rules implementing the Labor Code, a chartered local union acquires legal personality through the charter certificate issued by a duly registered federation or national union, and reported to the Regional Office in accordance with the rules implementing the Labor Code. A local union does not owe its existence to the federation with which it is affiliated. It is a separate and distinct voluntary association owing its creation to the will of its members. Mere affiliation does not divest the local union of its own personality, neither does it give the mother federation the license to act independently of the local union. It only gives rise to a contract of agency, where the former acts in representation of the latter. Hence, local unions are considered principals while the federation is deemed to be merely their agent. As such principals, the unions are entitled to exercise the rights and privileges of a legitimate labor organization, including the right to seek certification as the sole and exclusive bargaining agent in the appropriate employer unit.

b. Action on application LC, 235. Action on application. - The Bureau shall act on all applications for registration within thirty (30) days from filing. All requisite documents and papers shall be certified under oath by the secretary or the treasurer of the organization, as the case may be, and attested to by its president LC, 236. Denial of registration; appeal. - The decision of the Labor Relations Division in the regional office denying registration may be appealed by the applicant union to the Bureau within ten (10) days from receipt of notice thereof Book V, Rule IV, Sec. 4. “Action on the Application/Notice” – The Regional Office or the Bureau, as the case may be, shall act on all applications for registration or notice of change of name, affiliation, merger and consolidation within one (1) day from receipt thereof, either by: (a) approving the application and issuing the certificate of registration/acknowledging the notice/report; or (b) denying the application/notice for failure of the applicant to comply with requirements for registration/notice. (As amended by Department Order No. 40-D-05, Series of 2005) Book V, Rule IV, Sec. 5. Denial of Application/Return of Notice – Where the documents supporting the application for registration/notice of change of name, affiliation, merger and consolidation are incomplete or do not contain the required certification and attestation, the Regional Office or the Bureau, shall, within one (1) day from receipt of the application/notice, notify the application/labor organization concerned in writing of the necessary requirements and to complete the same within thirty (30) days from receipt of notice. Where the application/labor organization concerned fails to complete the requirements within the time prescribed, the application for registration shall be denied, or the notice of change of name, affiliation, merger and consolidation returned, without prejudice to filing a new application or notice. Book V, Rule IV, Sec. 6. Form of Denial of Application/Return of Notice; Appeal – The notice of the Regional Office of the Bureau denying the application for registration/returning the notice of change of name, affiliation, merger or consolidation shall be in writing stating in clear terms the reasons for the denial or return. The denial may be appealed to the Bureau if denial is made by the Regional Office or to the Secretary if denial is made by the Bureau, within ten(10 ) days from receipt of such notice, on the ground of grave abuse of discretion or violation of these Rules. Book V, Rule IV, Sec. 7. Procedure on Appeal – The memorandum of appeal shall be filed with the Regional Office or the Bureau that issued the denial/return of notice. The memorandum of appeal together with the notice of change of name, affiliation, merger or consolidation, shall be transmitted by the Regional Office to the Bureau or by the Bureau to the Office of the Secretary, within twenty-four (24) hours from receipt of the memorandum of appeal

The Bureau or the Office of the Secretary shall decide the appeal within twenty (20) days from receipt of the records of the case. Progressive Dev’t Corp-Pizza Hut v. Laguesma. A more than cursory reading of the aforecited provisions clearly indicates that the requirements embodied therein are intended as preventive measures against the commission of fraud. After a labor organization has filed the necessary papers and documents for registration, it becomes mandatory for the Bureau of Labor Relations to check if the requirements under Article 234 have been sedulously complied with. If its application for registration is vitiated by falsification and serious irregularities, especially those appearing on the face of the application and the supporting documents, a labor organization should be denied recognition as a legitimate labor organization. And if a certificate of recognition has been issued, the propriety of the labor organization's registration could be assailed directly through cancellation of registration proceedings in accordance with Articles 238 and 239 of the Labor Code, or indirectly, by challenging its petition for the issuance of an order for certification election.

c. Effect of registration Book V, Rule IV, Sec. 8. Effect of Registration – The labor union or workers’ association shall be deemed registered and vested with legal personality on the date of issuance of its certificate of registration or certificate of creation of chartered local Such legal personality may be questioned only through an independent petition for cancellation of union registration in accordance with Rule XIV of these rules, and not by way of collateral attack in petition for certification election proceeding under Rule VIII. Acquisition of Legal Personality

LC, 234 supra LC, 234-A supra Book V, Rule III, Sec. 2(E), supra SMC Mandaue Packaging Prod. V. MPP. It is thus very clear that the issuance of the certificate of registration by the Bureau or Regional Office is not the operative act that vests legal personality upon a local/chapter under Department Order No. 9. Such legal personality is acquired from the filing of the complete documentary requirements enumerated in Section 1, Rule VI. Admittedly, the manner by which respondent was deemed to have acquired legal personality by the DOLE and the Court of Appeals was not in strict conformity with the provisions of Department Order No. 9. Nonetheless, are the deviations significant enough for the Court to achieve a different conclusion from that made by the DOLE and the Court of Appeals? || In regular order, it is the federation or national union, already in possession of legal personality, which initiates the creation of the local/chapter. It issues a charter certificate indicating the creation or establishment of the local/chapter. It then submits this charter certificate, along with the names of the local/chapter’s officers, constitution and by-laws to the Regional Office or Bureau. It is the submission of these documents, certified under oath by the Secretary or Treasurer of the local/chapter and attested by the President, which vests legal personality in the local/chapter, which is then free to file on its own a petition for certification election.

d. Rights of legitimate labor organization

LC, 242. Rights of legitimate labor organizations. – A legitimate labor organization shall have the right:

(a) To act as the representative of its members for the purpose of collective bargaining;

(b) To be certified as the exclusive representative of all the employees in an appropriate bargaining unit for purposes of collective bargaining;

(c) To be furnished by the employer, upon written request, with its annual audited financial statements, including the balance sheet and the profit and loss statement, within thirty (30) calendar days from the date of receipt of the request, after the union has been duly recognized by the employer or certified as the sole and exclusive bargaining representative of the employees in the bargaining unit, or within sixty (60) calendar days before the expiration of the existing collective bargaining agreement, or during the collective bargaining negotiation;

10



(d) To own property, real or personal, for the use and benefit of the labor organization and its members;

(e) To sue and be sued in its registered name; and

(f) To undertake all other activities designed to benefit the organization and its members, including cooperative, housing, welfare and other projects not contrary to law.

Notwithstanding any provision of a general or special law to the contrary, the income and the properties of legitimate labor organizations, including grants, endowments, gifts, donations and contributions they may receive from fraternal and similar organizations, local or foreign, which are actually, directly and exclusively used for their lawful purposes, shall be free from taxes, duties and other assessments. The exemptions provided herein may be withdrawn only by a special law expressly repealing this provision. (As amended by Section 17, Republic Act No. 6715, March 21, 1989) San Miguel Foods v. Laguesma. A local or chapter therefore becomes a legitimate labor organization only upon submission of the following to the BLR: 1) A charter certificate, within 30 days from its issuance by the labor federation or national union, and 2) The constitution and by-laws, a statement on the set of officers, and the books of accounts all of which are certified under oath by the secretary or treasurer, as the case may be, of such local or chapter, and attested to by its president. Absent compliance with these mandatory requirements, the local or chapter does not become a legitimate labor organization. || Corollarily, the satisfaction of all these requirements by the local or chapter shall vest upon it the status of legitimacy with all its concomitant statutory privileges, one of which is the right to be certified as the exclusive representative of all the employees in an appropriate bargaining unit. Acedera v. ICTSI. A labor union is one such party authorized to represent its members under Article 242(a) of the Labor Code which provides that a union may act as the representative of its members for the purpose of collective bargaining. This authority includes the power to represent its members for the purpose of enforcing the provisions of the CBA. That APCWU acted in a representative capacity "for and in behalf of its Union members and other employees similarly situated," the title of the case filed by it at the Labor Arbiter’s Office so expressly states. || While a party acting in a representative capacity, such as a union, may be permitted to intervene in a case, ordinarily, a person whose interests are already represented will not be permitted to do the same28 except when there is a suggestion of fraud or collusion or that the representative will not act in good faith for the protection of all interests represented by him

e. Effect of non registration Book V, Rule IV, Sec. 8. supra Tropical Hut EU v. Tropical Hut. A local union owes its creation and continued existence to the will of its members and not to the federation to which it belongs. When the local union withdrew from the old federation to join a new one, it was merely exercising its primary right to labor organization for the effective enhancement and protection of common interests.

2. Cancellation of Union Certificate of Registration LC, 238. Cancellation of registration. - The certificate of registration of any legitimate labor organization, whether national or local, may be cancelled by the Bureau, after due hearing, only on the grounds specified in Article 239 hereof. (As amended by Section 3, Republic Act No. 9481 which lapsed into law on May 25, 2007 and became effective on June 14, 2007). LC, 238-A. Effect of a petition for cancellation of registration. - A petition for cancellation of union registration shall not suspend the proceedings for certification election nor shall it prevent the filing of a petition for certification election. In case of cancellation, nothing herein shall restrict the right of the union to seek just and equitable remedies in the appropriate courts. (As inserted by Section 4, Republic Act No. 9481 which lapsed into law on May 25, 2007 and became effective on June 14, 2007). LC, 239. Article 239. Grounds for cancellation of union registration.- The following may constitute 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. (As amended by Section 5, Republic Act No. 9481 which lapsed into law on May 25, 2007 and became effective on June 14, 2007).

LC, 241(j), last 2 paragraphs. Rights and conditions of membership in a labor organization. – The following are the rights and conditions of membership in a labor organization: Every income or revenue of the organization shall be evidenced by a record showing its source, and every expenditure of its funds shall be evidenced by a receipt from the person to whom the payment is made, which shall state the date, place and purpose of such payment. Such record or receipt shall form part of the financial records of the organization. Any action involving the funds of the organization shall prescribe after three (3) years from the date of submission of the annual financial report to the Department of Labor and Employment or from the date the same should have been submitted as required by law, whichever comes earlier: Provided, That this provision shall apply only to a legitimate labor organization which has submitted the financial report requirements under this Code: Provided, further, that failure of any labor organization to comply with the periodic financial reports required by law and such rules and regulations promulgated thereunder six (6) months after the effectivity of this Act shall automatically result in the cancellation of union registration of such labor organization; (As amended by Section 16, Republic Act No. 6715, March 21, 1989). LC, 242-A. Reportorial requirements. - The following are documents required to be submitted to the Bureau by the legitimate labor organization concerned:

(a) Its constitution and by-laws, or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification of the constitution and by-laws within thirty (30) days from adoption or ratification of the constitution and by-lam or amendments thereto;

(b) Its list of officers, minutes of the election of officers, and list of voters within thirty (30) days from election; (c) Its annual financial report within thirty (30) days after the close of every fiscal year; and (d) Its list of members at least once a year or whenever required by the Bureau.

Failure to comply with the above 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. (As inserted by Section 7, Republic Act No. 9481 which lapsed into law on May 25, 2007 and became effective on June 14, 2007).

Book V, Rule I Sec. 1(g). “Cancellation Proceedings” refer to the legal process leading to the revocation of the legitimate status of a union or workers’ association. Book V, Rule XIV. Cancellation of Registration of Labor organizations

Section 1. Where to file – Subject to the requirements of notice and due process, the registration of any legitimate independent labor union, local/chapter and workers’ association may be cancelled by the Regional Director upon the filing of a petition for cancellation of union registration, or application by the organization itself for voluntary dissolution. The petition for cancellation or application for voluntary dissolution shall be filed in the regional office which issued its certificate of registration or creation. In the case of federations, national or industry unions and trade union centers, the Bureau Director may cancel the registration upon the filing of a petition for cancellation or application for voluntary dissolution in the Bureau of Labor Relations. Section 2. Who May File – Any party-in-interest may commence a petition for cancellation of registration, except in actions involving violations of Article 24, which can only be commenced by members of the labor organization concerned. Section 3. Grounds for Cancellation – Any of the following may constitute as grounds for cancellation of registration of labor organizations:

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, the list of members who took par in the ratification

11


Janz Hanna Ria N. Serrano b. Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election of officers, and the

list of voters; or c. Voluntary dissolution by the members

Section 4. Voluntary Cancellation of Registration: How Made – A legitimate labor organization may cancel its registration provided that at least 2/3 of its general membership votes to dissolve the organization in a meeting duly called for that purpose and an application to cancel its registration is thereafter submitted by the Board of the Organization to the Regional/Bureau Director, as the case may be. The application shall be attested to by the President of the Organization. Section 5. Action on the Petition/Application – The petition/application shall be resolved by the Regional/Bureau Director, as the case may be. In case of a petition, for cancellation of registration, the formal requirements, processes and periods of disposition stated in Rule XI shall be followed in the determination of the merits of the petition. Section 6. Prohibited Grounds for Cancellation of Registration – The inclusion as union members of employees who are outside the bargaining unit shall not be a ground to cancel the union registration. The ineligible employees are automatically deemed removed from the list of membership of the Union. The affiliation of the rank-and-file and supervisory unions operating with the same establishment to the same federation or national union shall not be a ground to cancel the registration of either union.

Air Phil Corp. v. BLR. Clearly then, for the purpose of de-certifying a union, it is not enough to establish that the rank-and-file union includes ineligible employees in its membership. Pursuant to Article 239 (a) and (c) of the Labor Code, it must be shown that there was 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, or in connection with the election of officers, minutes of the election of officers, the list of voters, or failure to submit these documents together with the list of the newly elected-appointed officers and their postal addresses to the BLR Heritage Hotel v. PIGLAS-Heritage. The charge that a labor organization committed fraud and misrepresentation in securing its registration is a serious charge and deserves close scrutiny. It is serious because once such charge is proved, the labor union acquires none of the rights accorded to registered organizations. Consequently, charges of this nature should be clearly established by evidence and the surrounding circumstances. || At any rate, the Labor Code28 and its implementing rules29 do not require that the number of members appearing on the documents in question should completely dovetail. For as long as the documents and signatures are shown to be genuine and regular and the constitution and by-laws democratically ratified, the union is deemed to have complied with registration requirements.

E. International Activities of Union – Prohibition and Regulation LC, 269. Prohibition against aliens; exceptions. - All aliens, natural or juridical, as well as foreign organizations are strictly prohibited from engaging directly or indirectly in all forms of trade union activities without prejudice to normal contacts between Philippine labor unions and recognized international labor centers: Provided, however, That aliens working in the country with valid permits issued by the Department of Labor and Employment, may exercise the right to self-organization and join or assist labor organizations of their own choosing for purposes of collective bargaining: Provided, further, That said aliens are nationals of a country which grants the same or similar rights to Filipino workers. (As amended by Section 29, Republic Act No. 6715, March 21, 1989). LC, 270. Regulation of foreign assistance. - (a) No foreign individual, organization or entity may give any donations, grants or other forms of assistance, in cash or in kind, directly or indirectly, to any labor organization, group of workers or any auxiliary thereof, such as cooperatives, credit unions and institutions engaged in research, education or communication, in relation to trade union activities, without prior permission by the Secretary of Labor. "Trade union activities" shall mean: (1) organization, formation and administration of labor organization; (2) negotiation and administration of collective bargaining agreements; (3) all forms of concerted union action; (4) organizing, managing, or assisting union conventions, meetings, rallies, referenda, teach-ins, seminars, conferences and institutes; (5) any form of participation or involvement in representation proceedings, representation elections, consent elections, union elections; and (6) other activities or actions analogous to the foregoing. (b) This prohibition shall equally apply to foreign donations, grants or other forms of assistance, in cash or in kind, given directly or indirectly to any employer or employer’s organization to support any activity or activities affecting trade unions. (c) The Secretary of Labor shall promulgate rules and regulations to regulate and control the giving and receiving of such donations, grants, or other forms of assistance, including the mandatory reporting of the amounts of the donations or grants, the specific recipients thereof, the projects or activities proposed to be supported, and their duration. LC, 271. Applicability to farm tenants and rural workers. - The provisions of this Title pertaining to foreign organizations and activities shall be deemed applicable likewise to all organizations of farm tenants, rural workers, and the like: Provided, That in appropriate cases, the Secretary of Agrarian Reform shall exercise the powers and responsibilities vested by this Title in the Secretary of Labor

F. Union – Member Relations LC, 241. Rights and conditions of membership in a labor organization. – The following are the rights and conditions of membership in a labor organization:

(a) No arbitrary or excessive initiation fees shall be required of the members of a legitimate labor organization nor shall arbitrary, excessive or oppressive fine and forfeiture be imposed;

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

(c) The members shall directly elect their officers, including those of the national union or federation to which they or their union is affiliated, by secret ballot at intervals of five (5) years. No qualification requirements for candidacy to any position shall be imposed other than membership in good standing in subject labor organization. The secretary or any other responsible union officer shall furnish the Secretary of Labor and Employment with a list of the newly-elected officers, together with the appointive officers or agents who are entrusted with the handling of funds, within thirty (30) calendar days after the election of officers or from the occurrence of any change in the list of officers of the labor organization; (As amended by Section 16, Republic Act No. 6715, March 21, 1989).

(d) The members shall determine by secret ballot, after due deliberation, any question of major policy affecting the entire membership of the organization, unless the nature of the organization or force majeure renders such secret ballot impractical, in which case, the board of directors of the organization may make the decision in behalf of the general membership;

(e) No labor organization shall knowingly admit as members or continue in membership any individual who belongs to a subversive organization or who is engaged directly or indirectly in any subversive activity;

(f) No person who has been convicted of a crime involving moral turpitude shall be eligible for election as a union officer or for appointment to any position in the union;

(g) No officer, agent or member of a labor organization shall collect any fees, dues, or other contributions in its behalf or make any disbursement of its money or funds unless he is duly authorized pursuant to its constitution and by-laws;

(h) Every payment of fees, dues or other contributions by a member shall be evidenced by a receipt signed by the officer or agent making the collection and entered into the record of the organization to be kept and maintained for the purpose;

(i) The funds of the organization shall not be applied for any purpose or object other than those expressly provided by its constitution and by-laws or those expressly authorized by written resolution adopted by the majority of the members at a general meeting duly called for the purpose;

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

Any action involving the funds of the organization shall prescribe after three (3) years from the date of submission of the annual financial report to the Department of Labor and Employment or from the date the same should have been submitted as required by law, whichever comes earlier: Provided, That this provision shall apply only to a legitimate labor organization which has submitted the financial

http://www.lawphil.net/judjuris/juri2009/oct2009/gr_177024_2009.html#fnt28

http://www.lawphil.net/judjuris/juri2009/oct2009/gr_177024_2009.html#fnt29

12


Janz Hanna Ria N. Serrano report requirements under this Code: Provided, further, that failure of any labor organization to comply with the periodic financial reports required by law and such rules and regulations promulgated thereunder six (6) months after the effectivity of this Act shall automatically result in the cancellation of union registration of such labor organization; (As amended by Section 16, Republic Act No. 6715, March 21, 1989).

(k) The officers of any labor organization shall not be paid any compensation other than the salaries and expenses due to their positions as specifically provided for in its constitution and by-laws, or in a written resolution duly authorized by a majority of all the members at a general membership meeting duly called for the purpose. The minutes of the meeting and the list of participants and ballots cast shall be subject to inspection by the Secretary of Labor or his duly authorized representatives. Any irregularities in the approval of the resolutions shall be a ground for impeachment or expulsion from the organization;

(l) The treasurer of any labor organization and every officer thereof who is responsible for the account of such organization or for the collection, management, disbursement, custody or control of the funds, moneys and other properties of the organization, shall render to the organization and to its members a true and correct account of all moneys received and paid by him since he assumed office or since the last day on which he rendered such account, and of all bonds, securities and other properties of the organization entrusted to his custody or under his control. The rendering of such account shall be made: (1) At least once a year within thirty (30) days after the close of its fiscal year; (2) At such other times as may be required by a resolution of the majority of the members of the organization; and (3) Upon vacating his office.

The account shall be duly audited and verified by affidavit and a copy thereof shall be furnished the Secretary of Labor. (m) The books of accounts and other records of the financial activities of any labor organization shall be open to inspection by any officer or

member thereof during office hours; (n) No special assessment or other extraordinary fees may be levied upon the members of a labor organization unless authorized by a written

resolution of a majority of all the members in a general membership meeting duly called for the purpose. The secretary of the organization shall record the minutes of the meeting including the list of all members present, the votes cast, the purpose of the special assessment or fees and the recipient of such assessment or fees. The record shall be attested to by the president.

(o) Other than for mandatory activities under the Code, no special assessments, attorney’s fees, negotiation fees or any other extraordinary fees may be checked off from any amount due to an employee without an individual written authorization duly signed by the employee. The authorization should specifically state the amount, purpose and beneficiary of the deduction; and

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

For this purpose, registered labor organizations may assess reasonable dues to finance labor relations seminars and other labor education activities. Any violation of the above rights and conditions of membership shall be a ground for cancellation of union registration or expulsion of officers from office, whichever is appropriate. At least thirty percent (30%) of the members of a union or any member or members specially concerned may report such violation to the Bureau. The Bureau shall have the power to hear and decide any reported violation to mete the appropriate penalty. Criminal and civil liabilities arising from violations of above rights and conditions of membership shall continue to be under the jurisdiction of ordinary courts. LC, 249(a). Unfair labor practices of labor organizations. - It shall be unfair labor practice for a labor organization, its officers, agents or representatives: (a) To restrain or coerce employees in the exercise of their right to self-organization. However, a labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of membership USTFU v. Bitonio. While grievances against union leaders constitute legitimate complaints deserving appropriate redress, action thereon should be made in the proper forum at the proper time and after observance of proper procedures. Similarly, the election of union officers should be conducted in accordance with the provisions of the union's constitution and bylaws, as well as the Philippine Constitution and the Labor Code. Specifically, while all legitimate faculty members of the University of Santo Tomas (UST) belonging to a collective bargaining unit may take part in a duly convened certification election, only bona fide members of the UST Faculty Union (USTFU) may participate and vote in a legally called election for union officers. Mob hysteria, however well-intentioned, is not a substitute for the rule of law UST v. Samahang Manggagawa ng UST. Besides, as individual components of a union possessed of a distinct and separate corporate personality, respondent’s members should realize that in joining the organization, they have surrendered a portion of their individual freedom for the benefit of all the other members; they submit to the will of the majority of the members in order that they may derive the advantages to be gained from the concerted action of all. Since the will of the members is personified by its board of directors or trustees, the decisions it makes should accordingly bind them. Precisely, a labor union exists in whole or in part for the purpose of collective bargaining or of dealing with employers concerning terms and conditions of employment. What the individual employee may not do alone, as for example obtain more favorable terms and conditions of work, the labor organization, through persuasive and coercive power gained as a group, can accomplish better.

1. Admission and Discipline of Members LC, 249(a), supra. LC, 241(a). supra LC, 241(e). supra LC, 277(c). Any employee, whether employed for a definite period or not, shall, beginning on his first day of service, be considered as an employee for purposes of membership in any labor union. (As amended by Section 33, Republic Act No. 6715). Salunga v. CIR. Although, generally, a state may not compel ordinary voluntary associations to admit thereto any given individual, because membership therein may be accorded or withheld as a matter of privilege,1 the rule is qualified in respect of labor unions holding a monopoly in the supply of labor, either in a given locality, or as regards a particular employer with which it has a closed-shop agreement.2 The reason is that “ . . . The closed shop and the union shop cause the admission requirements of trade union to become affected with the public interest. Likewise, a closed shop, a union shop, or maintenance of membership clauses cause the administration of discipline by unions to be affected with the public interest.” Villar v. Inciong. We, therefore, hold and rule that petitioners, although entitled to disaffiliate from their union and form a new organization of their own, must, however, suffer the consequences of their separation from the union under the security clause of the CBA. Due Process

Bugay v. Kapisanan. . In effect, it was found that not only has he not been given an opportunity to defend himself but his expulsion was not submitted to the different chapters of the union as required by its constitution and by-laws. The result was that because of his expulsion he was subjected to humiliation and mental anguish with the consequent lose of his good name and reputation.

2. Election of Officers LC, 241(c). supra LC, 241(f). supra LC, 241(k). supra Book V, Rule XII.

Section 1. Conduct of Election of Union Officers; Procedure in the Absence of Provisions in the Constitution and By-laws – In the absence of any agreement among the members or any provision in the constitution and by-laws of a labor union or workers’ association, the following guidelines may be adopted in the election of officers: (a) Within 60 days before the expiration of the term of the incumbent officers, the president of the labor organization shall constitute a

committee on election to be composed of at least 3 members who are not running for any position in the election, provided that if there are identifiable parties within the labor organization, each party shall have equal representation in the committee;

13


Janz Hanna Ria N. Serrano (b) Upon constitution, the members shall elect the chairman of the committee from among themselves, and case of disagreement, the

president shall designate the chairman; (c) Within 10 days from its constitution, the committee shall, among others, exercise the following powers and duties:

(1) Set the date, time and venue of the election (2) Prescrive the rules on the qualification and eligibility of candidates and voters; (3) Prepare and post the voters’ list and the list of qualified candidates; (4) Accredit the authorized representatives of the contending parties; (5) Supervise the actual conduct of election and canvass the votes to ensure the sanctity of the ballot; (6) Keep minutes of the proceedings; (7) Be the final arbiter of all election protests; (8) Proclaim the winners; and (9) Prescribe such other rules as may facilitate the orderly conduct of election

Section 2. Dispute Over Conduct of Election of Officers – Where the terms of the officers of a labor organization have expired and its officers failed or neglected to do so call for an election of new officers, or where the labor organization’s constitution and by-laws do not provide for the manner by which said election can be called or conducted and the interventio0n of the Department is necessary, at least 30% of the members of the labor organization may file a petition for the conduct of election of their officers with the Regional Office that issued its certificate of registration or certificate of creation of chartered local. In the case of federations, national or industry unions and trade union centers, the petition shall be filed with the Bureau or the Regional Office shall be heard and resolved by the Bureau. This rule shall also apply where a conduct of election of officers is an alternative relief or necessary consequence of a petition for nullification of election of officers, impeachment/expulsion of officers, or such other petitions. Section 3. Formal Requirement and Proceedings – The formal requirements, processes and periods of disposition of this petition stated in Rule XI shall be followed in the determination of the merits of the petition and appeal.

a. Qualifications – LC, 241(c), (f) b. Manner of election – LC, 241(c)

i. Direct election ii. Secret ballot

c. Tenure – LC, 241(c) d. Compensation – LC, 241(k) e. Who may vote – LC, 241(c)

Kapisanan v. Trajano. The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When the people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave Ms faults or misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or misconduct to practically overrule the will of the people. Tancinco v. Calleja. The question however of eligibility to vote may be determined through the use of the applicable payroll period and employee's status during the applicable payroll period. The payroll of the month next preceding the labor dispute in case of regular employees 15 and the payroll period at or near the peak of operations in case of employees in seasonal industries. Manalad v. Trajano. After a careful consideration of the facts of this case, We are of the considered view that the expiration of the terms of office of the union officers and the election of officers on November 28, 1988 have rendered the issues raised by petitioners in this case moot and academic. It is pointless and unrealistic to insist on annulling an election of officers whose terms had already expired.

f. Shop steward Miranda, Jr. v. Asian Terminals. The premise that the union Shop Steward is a position within the respondent company provides a faulty foundation to an already convoluted case. A cursory look at the responsibilities of a shop steward leads to the conclusion that it is a position within the union, and not within the company. A shop steward is appointed by the union in a shop, department, or plant and serves as representative of the union, charged with negotiating and adjustment of grievances of employees with the supervisor of the employer.55 He is the representative of the union members in a building or other workplace.56 Black's Law Dictionary defines a shop steward as a union official elected to represent members in a plant or particular department. His duties include collection of dues, recruitment of new members and initial negotiations for the settlement of grievances

3. Major Policy Matter LC, 241(d). The members shall determine by secret ballot, after due deliberation, any question of major policy affecting the entire membership of the organization, unless the nature of the organization or force majeure renders such secret ballot impractical, in which case, the board of directors of the organization may make the decision in behalf of the general membership Halili v. CIR. The contract of retainer is not valid for it only had the approval of about 14% of the total membership. As such, the authority granted to Atty. Pineda made the entire transaction dubious and irregular.

4. Union Funds LC, 241 (a), (b), (c), (g), (h), (i), (j), (k), (l), (m), (n), (o). supra LC, 247. Concept of unfair labor practice and procedure for prosecution thereof. – Unfair labor practices violate the constitutional right of workers and employees to self-organization, are inimical to the legitimate interests of both labor and management, including their right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect, disrupt industrial peace and hinder the promotion of healthy and stable labor-management relations. Consequently, unfair labor practices are not only violations of the civil rights of both labor and management but are also criminal offenses against the State which shall be subject to prosecution and punishment as herein provided. Subject to the exercise by the President or by the Secretary of Labor and Employment of the powers vested in them by Articles 263 and 264 of this Code, the civil aspects of all cases involving unfair labor practices, which may include claims for actual, moral, exemplary and other forms of damages, attorney’s fees and other affirmative relief, shall be under the jurisdiction of the Labor Arbiters. The Labor Arbiters shall give utmost priority to the hearing and resolution of all cases involving unfair labor practices. They shall resolve such cases within thirty (30) calendar days from the time they are submitted for decision. Recovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code. No criminal prosecution under this Title may be instituted without a final judgment finding that an unfair labor practice was committed, having been first obtained in the preceding paragraph. During the pendency of such administrative proceeding, the running of the period of prescription of the criminal offense herein penalized shall be considered interrupted: Provided, however, that the final judgment in the administrative proceedings shall not be binding in the criminal case nor be considered as evidence of guilt but merely as proof of compliance of the requirements therein set forth. (As amended by Batas Pambansa Bilang 70, May 1, 1980 and later further amended by Section 19, Republic Act No. 6715, March 21, 1989). Book V, Rule XIII. Administration of Trade Union Funds and Actions Arising Therefrom

Section 1. Right of union to collect dues and agency fees. - The incumbent bargaining agent shall continue to be entitled to check-off and collect dues and agency fees despite the pendency of a representation case, other inter/intra-union disputes or related labor relations disputes. Section 2. Visitorial power under Article 274. - The Regional or Bureau Director may inquire into the financial activities of any legitimate labor organization and examine their books of accounts and other records to determine compliance with the law and the organization's constitution and by-laws. Such examination shall be made upon the filing of a request or complaint for the conduct of an accounts

http://www.lawphil.net/judjuris/juri2009/jun2009/gr_174316_2009.html#fnt55

http://www.lawphil.net/judjuris/juri2009/jun2009/gr_174316_2009.html#fnt56

14


Janz Hanna Ria N. Serrano examination by any member of the labor organization, supported by the written consent of at least twenty (20%) percent of its total membership. Section 3. Where to file. - A request for examination of books of accounts of independent labor unions, chartered locals and workers associations pursuant to Article 274 shall be filed with the Regional Office that issued its certificate of registration or certificate of creation of chartered local. A request for examination of books of accounts of federations or national unions and trade union centers pursuant to Article 274 shall be filed with the Bureau. Such request or complaint, in the absence of allegations pertaining to a violation of Article 241, shall not be treated as an intra-union dispute and the appointment of an Audit Examiner by the Regional or Bureau Director shall not be appealable. Section 4. Actions arising from Article 241. - Any complaint or petition with allegations of mishandling, misappropriation or non-accounting of funds in violation of Article 241 shall be treated as an intra-union dispute. It shall be heard and resolved by the Med-Arbiter pursuant to the provisions of Rule XI. Section 5. Prescription. - The complaint or petition for audit or examination of funds and book of accounts shall prescribe within three (3) years from the date of submission of the annual financial report to the Department or from the date the same should have been submitted as required by law, whichever comes earlier. Section 6. Decision. - A decision granting the conduct of audit shall include the appointment of the Audit Examiner and a directive upon him/her to submit his/her report and recommendations within ten (10) days from termination of audit. The decision granting the conduct of audit is interlocutory and shall not be appealable. The decision denying or dismissing the complaint or petition for audit may be appealed within ten (10) days from receipt thereof pursuant to the provisions prescribed in Rule XI. Section 7. Pre-audit conference. - Within twenty-four (24) hours from receipt of the decision granting the conduct of audit, the Regional Director shall summon the parties to a pre-audit conference conducted by the Audit Examiner to determine and obtain the following:

(a) sources of funds covered by the audit; (b) the banks and financial institutions where the labor organization maintains its account; (c) union books of accounts and financial statements; (d) disbursement vouchers with supporting receipts, invoices and other documents; (e) income and revenue receipts; (f) cash books; (g) minutes of general membership meeting and board meetings; (h) other relevant matters and documents.

The first pre-audit conference shall be scheduled within ten (10) days from receipt by the Audit Examiner of the decision granting the conduct of an audit.

Section 8. Issuance of subpoena. - The Regional Director may compel any party to appear or bring the required financial documents in a conference or hearing through the issuance of a subpoena ad testificandum or subpoena duces tecum. He/She may also require the employer concerned to issue certifications of union dues and other assessments remitted to the union during the period of audit.

Section 9. Conduct of audit examination. - Where book of accounts are submitted by the parties, the Audit Examiner shall: (a) examine the transactions reflected in the disbursement vouchers; (b) determine the validity of the supporting documents attached to the vouchers consistent with the union's constitution and by-laws, relevant resolutions of the union and the Labor Code; (c) trace recording and posting in the disbursement book; (d) record observations or findings of all financial transactions.

Where no book of accounts are maintained by the officers of the labor organization, the Audit Examiner shall: (a) examine the transactions reflected in the disbursement vouchers; (b) determine the validity of the supporting documents attached to the vouchers consistent with the labor organization's constitution and by-laws, relevant board resolutions, and the Labor Code; (c) prepare working papers or worksheet/s; (d) record and post all financial transactions reflected in the cash vouchers in the working papers or worksheet/s; and (e) record observations or findings of all financial transactions.

The Audit Examiner shall conduct an inventory of all physical assets acquired by the labor organization, if any, and on the basis of his/her findings prepare his/her audited financial report or statement reflecting the true and correct financial accounts and balances of the labor organization with relevant annexes attached.

Section 10. Period of audit. - The Audit Examiner shall have sixty (60) days from the date of first pre-audit conference within which to complete the conduct of audit, unless the volume of financial records, the period covered by the audit and other circumstances warrant the extension thereof. In such a case, the Audit Examiner shall notify the Med-Arbiter or the Bureau Director, as the case may be, of such fact at least ten (10) days before the expiration of the sixty (60) day period.

Section 11. Audit Report. - The Audit Examiner shall make a report of his/her findings to the parties involved and the same shall include the following: (a) name of the labor organization; (b) name of complainant(s) or petitioner(s) and respondent(s); (c) name of officers of the labor organization during the period covered by the audit report; (d) scope of the audit; (e) list of documents examined; (f) audit methods and procedures adopted; and (g) findings and recommendations.

Section 12. Completion of audit. - A copy of the audit report shall be forwarded by the Audit Examiner to the Med-Arbiter or the Bureau Director, as the case may be, within ten (10) days from termination of the audit, together with the entire records of the case and all documents relative to the conduct of the audit.

Section 13. Decision after audit. - The Med-Arbiter or the Bureau Director shall render a decision within twenty (20) days from receipt of the audit report. All issues raised by the parties during the conduct of the audit shall be resolved by the Med-Arbiter. The decision shall be released in the same manner prescribed in Section 15, Rule XI.

When warranted, the Med-Arbiter or Bureau Director shall order the restitution of union funds by the responsible officer(s) in the same decision.

Section 14. Appeal. - Appeal from the decision of the Med-Arbiter denying the conduct of audit and from the results of the audit may be filed by any of the parties with the Bureau. Decisions rendered by the Bureau after the conduct of audit in the exercise of its original jurisdiction may be appealed to the Office of the Secretary. Both shall be resolved in accordance with the provisions of Section 16, Rule XI.

15


Janz Hanna Ria N. Serrano Section 15. Period of inquiry or examination. - No complaint for inquiry or examination of the financial and book of accounts as well as other records of any legitimate labor organization shall be entertained during the sixty (60) day freedom period or within thirty (30) days immediately preceding the date of election of union officers. Any complaint or petition so filed shall be dismissed.

Payment of Attorney’s Fees LC, 241(o) supra LC, 241(n) supra LC, 222. Appearances and Fees. - (a) Non-lawyers may appear before the Commission or any Labor Arbiter only: 1. If they represent themselves; or 2. If they represent their organization or members thereof. (b) No attorney’s fees, negotiation fees or similar charges of any kind arising from any collective bargaining agreement shall be imposed on any individual member of the contracting union: Provided, However, that attorney’s fees may be charged against union funds in an amount to be agreed upon by the parties. Any contract, agreement or arrangement of any sort to the contrary shall be null and void. (As amended by Presidential Decree No. 1691, May 1, 1980). LC, 241(g) supra LC, 241 (h) supra LC, 241 (m) supra LC, 241 (n) supra LC, 241 (o) supra PBC v. Clave. The case is covered squarely by the mandatory and explicit prescription of article 222 which is another guarantee intended to protect the employee against unwarranted practices that would diminish his compensation without his knowledge and consent. Other provisions of the Labor Code animated by the same intention are the following: Article 242, paragraphs (n) and (o); 288, PD 442; 291, PD 570-A; 240, PD 626; 241, PD 850. There is no doubt that lawyer Saavedra is entitled to the payment of his fees but Article 222 ordains that union funds should be used for that purpose. The amount of P345,000 does not constitute union funds. It is money of the employees. The union, not the employees, is obligated to Saavedra.

Payment of Special Assessment LC, 241 (n)(o) vis-à-vis LC, 222(b) Gabriel v. Sec. of Labor. Art. 241 has three (3) requisites for the validity of the special assessment for union's incidental expenses, attorney's fees and representation expenses. These are: 1) authorization by a written resolution of the majority of all the members at the general membership meeting called for the purpose; (2) secretary's record of the minutes of the meeting; and (3) individual written authorization for check off duly signed by the employees concerned. || Clearly, attorney's fees may not be deducted or checked off from any amount due to an employee without his written consent. Marino v. Gamilia. Petitioners' reasoning is evidently flawed since the attorney's fees may only be paid from union funds; yet the amount to be used in paying for the same does not become union funds until it is actually deducted as attorney's fees from the benefits awarded to the employees. It is just a roundabout argument. What the law requires is that the funds be already deemed union funds even before the attorney's fees are deducted or paid therefrom; it does not become union funds after the deduction or payment. To rule otherwise will also render the general prohibition stated in Article 222 (b) nugatory, because all that the union needs to do is to deduct from the total benefits awarded to the employees the amount intended for attorney's fees and, thus, "convert" the latter to union funds, which could then be used to pay for the said attorney's fees.

5. Mandatory Activity – LC, 241(o) Vengco v. Trajano. A mandatory activity has been defined as a judicial process of settling dispute laid down by the law. The amicable settlement entered into by the management and the union — whereby the company will pay to the union members the sum of P150,000.00 for their claims arising from the unpaid emergency cost of living allowance (ECOLA) and other benefits — cannot be considered as a mandatory activity under the Code. It is true that the union filed a claim for emergency cost of living allowance and other benefits before the Ministry of Labor. But this case never reached its conclusion in view of the parties' agreement. Galvadores v. Trajano. Contrary to respondent Union's and Counsel's stand, the benefits awarded to PLDT employees still formed part of the collective bargaining negotiations although placed already under compulsory arbitration. This is not the "mandatory activity" under the Code which dispenses with individual written authorizations for check-offs, notwithstanding its "compulsory" nature.

6. Union Information/Obligation LC, 241(p), supra CCCLU v. Continental Cement. The officers of petitioner misinformed the members and led them into staging an illegal strike. If the NLRC is to attain the objective of the Labor Code to ensure a stable but dynamic and just industrial peace 6 the removal of undesirable labor leaders must be effected.

7. Enforcement and Remedies – Procedure, Jurisdiction and Sanctions LC, 241, last par. Book V, Rule XIV, supra Book V, Rule XV.

DO 40-F-03 ::: Section 1. National Registry – The Bureau shall be the National Registry of Labor Organizations and Collective Bargaining Agreements. As such, it shall: (a) Maintain a national registry; (b) Within the month of March following the end of the calendar year, publish in the DOLE website the lists of labor organizations and

federations which have complied with the reportorial requirements of rule V and delinquent labor organizations; (c) Publish a list of officers of labor organizations with criminal conviction by final judgment; and, (d) Verify the existence of a registered labor organization with no registered collective bargaining agreement and which has not been

complying with the reportorial requirements for at least 5 years. The verification shall observe the following process: (1) The Regional Office shall make a report of the labor organization’s non-compliance and submit the same to the Bureau for

verification. The Bureau shall send by registered mail with return card to the labor organization concerned, a notice for compliance indicating the documents it failed to submit and the corresponding period in which they were required, with notice to comply with the said reportorial requirements and to submit proof thereof to the Bureau within 10 days from receipt thereof. Where no response is received by the Bureau within 30 days from the service of the first notice, it shall send another notice for compliance, with warning that failure on its part to comply with the reportorial requirements within the time specified shall cause its publication as a non-existing labor organization in the DOLE website.

(2) Where no response is received by the Bureau within 30 days from service of 2nd notice, the Bureau shall publish the notice of non-existence of the labor organization/s in the DOLE website

(3) Where no response is received by the Bureau within 30 days from date of publication, or where the Bureau has verified the dissolution of the labor organization, it shall delist the labor organization from the roster of legitimate labor organizations.

Expulsion Diokno v. Hon. Cacdac. On the issue of disqualification, there was a blatant misapplication by the COMELEC of the FLAMES' CBL. As has been established ad nauseam, the provision 47 relied upon by the COMELEC in disqualifying private respondents Daya, et al., applies to a case of expulsion of members from the union. || Article IV, Section 4 (a) (6) of the FLAMES' CBL, embraces exclusively the case of dismissal and/or expulsion of members from the union. Even a cursory reading of the provision does not tell us that the same is to be automatically or directly applied in the disqualification of a candidate from union elections, which is the matter at bar. It cannot be denied that the COMELEC erroneously relied on Article IV, Section 4 (a) (6) because the same does not contemplate the situation of private respondents Daya, et al. The latter are not sought to be expelled or dismissed by the Executive Board. They were brought before the COMELEC to be disqualified as candidates in the 7 May 2003 elections. Second, the aforecited provision evidently enunciates with clarity the procedural

16


Janz Hanna Ria N. Serrano course that should be taken to dismiss and expel a member from FLAMES. The CBL is succinct in stating that the dismissal and expulsion of a member from the union should be after due process and investigation, the same to be exercised by two-thirds (2/3) vote of the Executive Board for any of the causes 49 mentioned therein. Duyag v. Inciong. The membership of Manalad and Puerto in another union is a sufficient ground for their removal under the constitution and by-laws of the union. In Manalad's case, his organization of a family-owned corporation competing with the union headed by him renders it untenable that he should remain as union president. || The labor officials should not hesitate to enforce strictly the law and regulations governing trade unions even if that course of action would curtail the so-called union autonomy and freedom from government interference. || For the protection of union members and in order that the affairs of the union may be administered honestly, labor officials should be vigilant and watchful in monitoring and checking the administration of union affairs. || Laxity, permissiveness, neglect and apathy in supervising and regulating the activities of union officials would result in corruption and oppression. Internal safeguards within the union can easily be ignored or swept aside by abusive, arrogant and unscrupulous union officials to the prejudice of the members.

8. Union leave Malayan Employees Association—FFW v. Malayan Insurance. While it is true that the union and its members have been granted union leave privileges under the CBA, the grant cannot be considered separately from the other provisions of the CBA, particularly the provision on management prerogatives where the CBA reserved for the company the full and complete authority in managing and running its business.18 We see nothing in the wordings of the union leave provision that removes from the company the right to prescribe reasonable rules and regulations to govern the manner of availing of union leaves, particularly the prerogative to require prior approval. Precisely, prior notice is expressly required under the CBA so that the company can appropriately respond to the request for leave. In this sense, the rule requiring prior approval only made express what is implied in the terms of the CBA.

G. Union Chartering and Affiliation: Local and Parent Union Relations Book V, Rule I, Sec. 1(a). "Affiliate" refers to an independent union affiliated with a federation, national union or a chartered local which was subsequently granted independent registration but did not disaffiliate from its federation, reported to the Regional Office and the Bureau in accordance with Rule III, Sections 6 and 7 of these Rules. Book V, Rule I, Sec. 1(i). "Chartered Local" refers to a labor organization in the private sector operating at the enterprise level that acquired legal personality through registration with the Regional Office in accordance with Rule III, Section 2-E of these Rules. (As amended by DO 40-B-03.) Book V, Rule I, Sec. 1(w). "Independent Union" refers to a labor organization operating at the enterprise level that acquired legal personality through independent registration under Article 234 of the Labor Code and Rule III, Section 2-A of these Rules. Book V, Rule I, Sec. 1(kk). "National Union" or "Federation" refers to a group of legitimate labor unions in a private establishment organized for collective bargaining or for dealing with employers concerning terms and conditions of employment for their member unions or for participating in the formulation of social and employment policies, standards and programs, registered with the Bureau in accordance with Rule III, Section 2-B of these Rules. Book V, Rule III.

Section 1. Where to file. - Applications for registration of independent labor unions, chartered locals, workers' associations shall be filed with the Regional Office where the applicant principally operates. It shall be processed by the Labor Relations Division at the Regional Office in accordance with Sections 2-A, 2-C, and 2-E of this Rule. Applications for registration of federations, national unions or workers' associations operating in more than one region shall be filed with the Bureau or the Regional Offices, but shall be processed by the Bureau in accordance with Sections 2-B and 2-D of this Rule. Section 2. Requirements for application. - A. The application for registration of an independent labor union shall be accompanied by the following documents:

1) the name of the applicant labor union, its principal address, the name of its officers and their respective addresses, approximate number of employees in the bargaining unit where it seeks to operate, with a statement that it is not reported as a chartered local of any federation or national union;

2) the minutes of the organizational meeting(s) and the list of employees who participated in the said meeting(s); 3) the name of all its members comprising at least 20% of the employees in the bargaining unit; 4) the annual financial reports if the applicant has been in existence for one or more years, unless it has not collected any amount from the

members, in which case a statement to this effect shall be included in the application; 5) the applicant's constitution and by-laws, minutes of its adoption or ratification, and the list of the members who participated in it. The list

of ratifying members shall be dispensed with where the constitution and by-laws was ratified or adopted during the organizational meeting. In such a case, the factual circumstances of the ratification shall be recorded in the minutes of the organizational meeting(s).

B. The application for registration of federations and national unions shall be accompanied by the following documents:

1) a statement indicating the name of the applicant labor union, its principal address, the name of its officers and their respective addresses; 2) the minutes of the organizational meeting(s) and the list of employees who participated in the said meeting(s); 3) the annual financial reports if the applicant union has been in existence for one or more years, unless it has not collected any amount

from the members, in which case a statement to this effect shall be included in the application; 4) the applicant union's constitution and by-laws, minutes of its adoption or ratification, and the list of the members who participated in it.

The list of ratifying members shall be dispensed with where the constitution and by-laws was ratified or adopted during the organizational meeting(s). In such a case, the factual circumstances of the ratification shall be recorded in the minutes of the organizational meeting(s);

5) the resolution of affiliation of at least ten (10) legitimate labor organizations, whether independent unions or chartered locals, each of which must be a duly certified or recognized bargaining agent in the establishment where it seeks to operate; and

6) the name and addresses of the companies where the affiliates operate and the list of all the members in each company involved.

Labor organizations operating within an identified industry may also apply for registration as a federation or national union within the specified industry by submitting to the Bureau the same set of documents.

C. The application for registration of a workers' association shall be accompanied by the following documents:

1) the name of the applicant association, its principal address, the name of its officers and their respective addresses; 2) the minutes of the organizational meeting(s) and the list of members who participated therein; 3) the financial reports of the applicant association if it has been in existence for one or more years, unless it has not collected any amount

from the members, in which case a statement to this effect shall be included in the application; 4) the applicant's constitution and by-laws to which must be attached the names of ratifying members, the minutes of adoption or

ratification of the constitution and by-laws and the date when ratification was made, unless ratification was done in the organizational meeting(s), in which case such fact shall be reflected in the minutes of the organizational meeting(s).

D. Application for registration of a workers' association operating in more than one region shall be accompanied, in addition to the requirements in the preceding subsection, by a resolution of membership of each member association, duly approved by its board of directors.

http://www.lawphil.net/judjuris/juri2010/feb2010/gr_181357_2010.html#fnt18

17


Janz Hanna Ria N. Serrano E. A duly-registered federation or national union may directly create a local/chapter by issuing a charter certificate indicating the establishment of the local/chapter. The local/chapter shall acquire legal personality only for purposes of filing a petition for certification election from th4e date it was issued a charter certificate.

The local/chapter shall be entitled to all other rights and privileges of a legitimate labor union only upon the submission of the following documents in addition to its charter certificate:(a)the names of the local/chapter’s officers, their addresses, and the principal office of the local/chapter, and (b) the chapter’s constitution and by-laws provided, that where the chapter’s constitution and by-laws are the same as that of the federation or the national union, this fact shall be indicated accordingly.

The genuineness and due execution of the supporting requirements shall be certified under oath by the secretary or treasurer of the local/chapter and attested to by the president.

Section 3. Notice of change of name of labor organizations; Where to file. - The notice for change of name of a registered labor organization shall be filed with the Bureau or the Regional Office where the concerned labor organization's certificate of registration or certificate of creation of a chartered local was issued.

Section 4. Requirements for notice of change of name. - The notice for change of name of a labor organization shall be accompanied by the following documents: (a) proof of approval or ratification of change of name; and (b) the amended constitution and by-laws.

Section 5. Certificate of Registration/ Certificate of Creation of Chartered Local for change of name. - The certificate of registration and the certificate of creation of a chartered local issued to the labor organization for change of name shall bear the same registration number as the original certificate issued in its favor and shall indicate the following: (a) the new name of the labor organization; (b) its former name; (c) its office or business address; and (d) the date when the labor organization acquired legitimate personality as stated in its original certificate of registration/certificate of creation of chartered local.

Section 6. Report of Affiliation with federations or national unions; Where to file. - The report of affiliation of an independently registered labor union with a federation or national union shall be filed with the Regional Office that issued its certificate of registration.

Section 7. Requirements of affiliation. - The report of affiliation of independently registered labor unions with a federation or national union shall be accompanied by the following documents: (a) resolution of the labor union's board of directors approving the affiliation; (b) minutes of the general membership meeting approving the affiliation; (c) the total number of members comprising the labor union and the names of members who approved the affiliation; (d) the certificate of affiliation issued by the federation in favor of the independently registered labor union; and (e) written notice to the employer concerned if the affiliating union is the incumbent bargaining agent.

Section 8. Notice of Merger/Consolidation of labor organizations; Where to file. - Notice of merger or consolidation of independent labor unions, chartered locals and workers' associations shall be filed with and recorded by the Regional Office that issued the certificate of registration/certificate of creation of chartered local of either the merging or consolidating labor organization. Notice of merger or consolidation of federations or national unions shall be filed with and recorded by the Bureau.

Section 9. Requirements of notice of merger. - The notice of merger of labor organizations shall be accompanied by the following documents:

(a) the minutes of merger convention or general membership meeting(s) of all the merging labor organizations, with the list of their respective members who approved the same; and

(b) the amended constitution and by-laws and minutes of its ratification, unless ratification transpired in the merger convention, which fact shall be indicated accordingly.

Section 10. Certificate of Registration. - The certificate of registration issued to merged labor organizations shall bear the registration number of one of the merging labor organizations as agreed upon by the parties to the merger.

The certificate of registration shall indicate the following: (a) the new name of the merged labor organization; (b) the fact that it is a merger of two or more labor organizations; (c) the name of the labor organizations that were merged; (d) its office or business address; and (e) the date when each of the merging labor organizations acquired legitimate personality as stated in their respective original certificate of registration.

Section 11. Requirements of notice of consolidation. - The notice of consolidation of labor organizations shall be accompanied by the following documents: (a) the minutes of consolidation convention of all the consolidating labor organizations, with the list of their respective members who approved the same; and (b) the amended constitution and by-laws, minutes of its ratification transpired in the consolidation convention or in the same general membership meeting(s), which fact shall be indicated accordingly.

Section 12. Certificate of Registration. - The certificate of registration issued to a consolidated labor organization shall bear the registration number of one of the consolidating labor organizations as agreed upon by the parties to the consolidation.

The certificate of registration shall indicate the following (a) the new name of the consolidated labor organization; (b) the fact that it is a consolidation of two or more labor organizations; (c) the name of the labor organizations that were consolidated; (d) its office or business address; and (e) the date when each of the consolidating labor organizations acquired legitimate personality as stated in their respective original certificates of registration.

1. Affiliation: purpose, Nature of Relations a. Independent union/local union – Book V, Rule I, Sec. 1(w) b. Chartered local (local/chapter) – Book V, Rule I, Sec. 1(i)

SMCEU v. SM Pckg. the creation of a branch, local or chapter is treated differently. This Court, in the landmark case of Progressive Development Corporation v. Secretary, Department of Labor and Employment,31 declared that when an unregistered union becomes a branch, local or chapter, some of the aforementioned requirements for registration are no longer necessary or compulsory. Whereas an applicant for registration of an independent union is mandated to submit, among other things, the number of employees and names of all its members comprising at least 20% of the employees in the bargaining unit where it seeks to operate, as provided under Article 234 of the Labor Code and Section 2 of Rule III, Book V of the Implementing Rules, the same is no longer required of a branch, local or chapter.32 The intent of the law in imposing less requirements in the case of a branch or local of a registered federation or national union is to encourage the affiliation of a local union with a federation or national union in order to increase the local union's bargaining powers

http://www.lawphil.net/judjuris/juri2007/sep2007/gr_171153_2007.html#fnt31


18


Janz Hanna Ria N. Serrano respecting terms and conditions of labor. || After an exhaustive study of the governing labor law provisions, both statutory and regulatory,43 we find no legal justification to support the conclusion that a trade union center is allowed to directly create a local or chapter through chartering. Apropos, we take this occasion to reiterate the first and fundamental duty of this Court, which is to apply the law. The solemn power and duty of the Court to interpret and apply the law does not include the power to correct by reading into the law what is not written therein Coastal Subic Bay Terminal v. DOLE. Under the rules implementing the Labor Code, a chartered local union acquires legal personality through the charter certificate issued by a duly registered federation or national union, and reported to the Regional Office in accordance with the rules implementing the Labor Code. [25] A local union does not owe its existence to the federation with which it is affiliated. It is a separate and distinct voluntary association owing its creation to the will of its members. Mere affiliation does not divest the local union of its own personality, neither does it give the mother federation the license to act independently of the local union. It only gives rise to a contract of agency, where the former acts in representation of the latter. [26] Hence, local unions are considered principals while the federation is deemed to be merely their agent. [27] As such principals, the unions are entitled to exercise the rights and privileges of a legitimate labor organization, including the right to seek certification as the sole and exclusive bargaining agent in the appropriate employer unit.

c. Affiliate -- Book V, Rule I, Sec. 1(a) d. National union or federation – Book V, Rule I, Sec. 1(kk)

Sugbuanon Rural Bank v. Laguesma. Petitioner argues that giving due course to respondent union's petition for certification election would violate the separation of unions doctrine. Note that the petition was filed by APSOTEU-TUCP, a legitimate labor organization. It was not filed by ALU. Nor was it filed by TUCP, which is a national labor federation of which respondent union is affiliated. Petitioner says that respondent union is a mere alter ego of ALU. The records show nothing to this effect. What the records instead reveal is that respondent union was initially assisted by ALU during its preliminary stages of organization. A local union maintains its separate personality despite affiliation with a larger national federation. Petitioner alleges that ALU seeks to represent both respondent union and the rank-and-file union. Again, we find nothing in the records to support this bare assertion. Filipino Pipe and Foundry Corp v. NLRC. The same is true even if the local union is not a legitimate labor organization. Conformably, in the abovecited case the Court ruled that the mother federation was a mere agent and the local chapter/union was the principal, notwithstanding the failure of the local union to comply with the procedural requirements that would make it a legitimate labor organization.

2. Supervisor/Rank and File Union Affiliation LC, 245. Ineligibility of managerial employees to join any labor organization; Right of Supervisory Employees. - Managerial employees are not eligible to join, assist or form any labor organization. Supervisory employees shall not be eligible for membership in the collective bargaining unit of the rank-and-file employees but may join, assist or form separate collective bargaining units and/or legitimate labor organizations of their own. The rank-and-file union and the supervisors’ union operating within the same establishment may join the same federation or national union. (As amended by Section 18, Republic Act No. 6715, March 21, 1989 and Section 8, Republic Act No. 9481 which lapsed into law on May 25, 2007 and became effective on June 14, 2007). LC, 245-A. Effect of inclusion as members of employees outside the bargaining unit. - The inclusion as union members of employees outside the bargaining unit shall not be a ground for the cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership of said union. (Introduced as new provision by Section 9, Republic Act No. 9481 which lapsed into law on May 25, 2007 and became effective on June 14, 2007). Atlas Lithographic v. Laguesma. The rationale for the amendment is the government's recognition of the right of supervisors to organize with the qualification that they shall not join or assist in the organization of rank-and-file employees. The reason behind the Industrial Peace Act provision on the same subject matter has been adopted in the present statute. The interests of supervisors on the one hand, and the rank-and-file employees on the other, are separate and distinct. The functions of supervisors, being recommendatory in nature, are more identified with the interests of the employer. The performance of those functions may, thus, run counter to the interests of the rank-and-file. DLSUMC v. Laguesma. The reason for the segregation of supervisory and rank-and-file employees of a company with respect to the exercise of the right to self-organization is the difference in their interests. Supervisory employees are more closely identified with the employer than with the rank-and-file employees. If supervisory and rank-and-file employees in a company are allowed to form a single union, the conflicting interests of these groups impair their relationship and adversely affect discipline, collective bargaining and strikes. 10 These consequences can obtain not only in cases where supervisory and rank-and-file employees in the same company belong to a single union but also where unions formed independently by supervisory and rank-and-file employees of a company are allowed to affiliate with the same national federation.

3. Local Union Disaffiliation: Nature of right and legality Phil. Skylanders v. NLRC. In the landmark case of Liberty Cotton Mills Workers Union vs. Liberty Cotton Mills, Inc.16we upheld the right of local unions to separate from their mother federation on the ground that as separate and voluntary associations, local unions do not owe their creation and existence to the national federation to which they are affiliated but, instead, to the will of their members. The sole essence of affiliation is to increase, by collective action, the common bargaining power of local unions for the effective enhancement and protection of their interests. Admittedly, there are times when without succor and support local unions may find it hard, unaided by other support groups, to secure justice for themselves. Yet the local unions remain the basic units of association, free to serve their own interests subject to the restraints imposed by the constitution and by-laws of the national federation, and free also to renounce the affiliation upon the terms laid down in the agreement which brought such affiliation into existence. MSMG-UWP v. Ramos. A local union has the right to disaffiliate from its mother union or declare its autonomy. A local union, being a separate and voluntary association, is free to serve the interests of all its members including the freedom to disaffiliate or declare its autonomy from the federation to which it belongs when circumstances warrant, in accordance with the constitutional guarantee of freedom of association. Mass Disaffiliation

Phil. Labor Alliance Council v. BLR. It is indisputable that the present controversy would not have arisen if there were no mass disaffiliation from petitioning Union. Such a phenomenon is nothing new in the Philippine labor movement.21 Nor is it open to any legal objection. It is implicit in the freedom of association explicitly ordained by the Constitution.22 There is then the incontrovertible right of any individual to join an organization of his choice. That option belongs to him. A workingman is not to be denied that liberty. 23 He may be, as a matter of fact, more in need of it if the institution of collective bargaining as an aspect of industrial democracy is to succeed. No obstacle that may possible thwart the desirable objective of militancy in labor's struggle for better terms and conditions is then to be placed on his way. Once the fact of disaffiliation has been demonstrated beyond doubt, as in this case, a certification election is the most expeditious way of determining which labor organization is to be the exclusive bargaining representative.

4. Period Alliance of Nationalist and Genuine Labor Organization v. Samana. The law is definitely not without exceptions. Settled is the rule that a local union has the right to disaffiliate from its mother union when circumstances warrant. 5 Generally, a labor union may disaffiliate from the mother union to form a local or independent union only during the 60-day freedom period immediately preceding the expiration of the CBA. However, even before the onset of the freedom period, disaffiliation may be carried out when there is a shift of allegiance on the part of the majority of the members of the union.

V. The Appropriate Bargaining Unit A. Law and Definition

LC, 255. Exclusive bargaining representation and workers’ participation in policy and decision-making. – The labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining. However, an individual employee or group of employees shall have the right at any time to present grievances to their employer.


http://www.lawphil.net/judjuris/juri2006/nov2006/gr_157117_2006.html#fnt25



http://www.lawphil.net/judjuris/juri2002/jan2002/gr_127374_2002.html#fnt16

19


Janz Hanna Ria N. Serrano Any provision of law to the contrary notwithstanding, workers shall have the right, subject to such rules and regulations as the Secretary of Labor and Employment may promulgate, to participate in policy and decision-making processes of the establishment where they are employed insofar as said processes will directly affect their rights, benefits and welfare. For this purpose, workers and employers may form labor- management councils: Provided, That the representatives of the workers in such labor-management councils shall be elected by at least the majority of all employees in said establishment. (As amended by Section 22, Republic Act No. 6715, March 21, 1989). Book V, Rule I, Sec. 1(d). "Bargaining Unit" refers to a group of employees sharing mutual interests within a given employer unit, comprised of all or less than all of the entire body of employees in the employer unit or any specific occupational or geographical grouping within such employer unit. Belyca v. Calleja. According to Rothenberg, a proper bargaining unit maybe said to be a group of employees of a given employer, comprised of all or less than all of the entire body of employees, which the collective interests of all the employees, consistent with equity to the employer, indicate to be best suited to serve reciprocal rights and duties of the parties under the collective bargaining provisions of the law (Rothenberg in Labor Relations, p. 482). || This Court has already taken cognizance of the crucial issue of determining the proper constituency of a collective bargaining unit. || Among the factors considered in Democratic Labor Association v. Cebu Stevedoring Co. Inc. (103 Phil 1103 [1958]) are: "(1) will of employees (Glove Doctrine); (2) affinity and unity of employee's interest, such as substantial similarity of work and duties or similarity of compensation and working conditions; (3) prior collective bargaining history; and (4) employment status, such as temporary, seasonal and probationary employees". || Under the circumstances of that case, the Court stressed the importance of the fourth factor and sustained the trial court's conclusion that two separate bargaining units should be formed in dealing with respondent company, one consisting of regular and permanent employees and another consisting of casual laborers or stevedores. Otherwise stated, temporary employees should be treated separately from permanent employees. But more importantly, this Court laid down the test of proper grouping, which is community and mutuality of interest.

B. Determination of Appropriate Bargaining Unit 1. Factors – Unit Determination

UP v. Ferrer-Calleja. Our labor laws do not however provide the criteria for determining the proper collective bargaining unit. Apart from the single descriptive word "appropriate," in Section 12 of the Industrial Peace Act which was subsequently incorporated into the Labor Code with minor changes, no specific guide for determining the proper collective bargaining unit can be found in the statutes. Case law fortunately furnishes some guidelines. The basic test in determining the appropriate bargaining unit is that a unit, to be appropriate, must affect a grouping of employees who have substantial, mutual interests in wages, hours, working conditions and other subjects of collective bargaining (citing Smith on Labor Laws, 316-317; Francisco, Labor Laws, 162). . . . The Court further explained that "(t)he test of the grouping is community or mutuality of interests. And this is so because the basic test of an asserted bargaining unit's acceptability is whether or not it is fundamentally the combination which will best assure to all employees the exercise of their collective bargaining rights' (Rothenberg on Labor Relations, 490)." SMC v. Laguesma . A bargaining unit is a "group of employees of a given employer, comprised of all or less than all of the entire body of employees, consistent with equity to the employer, indicate to be the best suited to serve the reciprocal rights and duties of the parties under the collective bargaining provisions of the law." || The fundamental factors in determining the appropriate collective bargaining unit are: (1) the will of the employees (Globe Doctrine); (2) affinity and unity of the employees' interest, such as substantial similarity of work and duties, or similarity of compensation and working conditions (Substantial Mutual Interests Rule); (3) prior collective bargaining history; and (4) similarity of employment status. Contrary to petitioner's assertion, this Court has categorically ruled that the existence of a prior collective bargaining history is neither decisive nor conclusive in the determination of what constitutes an appropriate bargaining unit.

2. Unit Severance and Globe Doctrine Mechanical Dep’t Labor Union v. CIR. Under the "Globe doctrine" (Globe Machine & Stamping Co., 3 NLRB 294) applied in Democratic Labor Union vs. Cebu Stevedoring Co., L-10321, 28 February 1958, bargaining units may be formed through separation of new units from existing ones whenever plebiscites had shown the workers' desire to have their own representatives. In the case at bar, the appeal of the Mechanical Department Labor Union, questioning the applicability under the circumstances of the Globe doctrine of considering the will of the employees in determining what union should represent them, is premature, since the result of the ordered plebiscite among the workers of the Caloocan Shops (who desire to form a new bargaining unit) may be adverse to the formation of a separate unit, in which event, all questions raised in this case would be rendered moot and academic. Kapisanan ng mga Manggagawa sa Manila Railroad v. Yard Crew Union. Certainly, no one would deny the respondent court's right of full investigation in arriving at a correct and conclusive finding of fact in order to deny or grant the petitions for certification election, as it is the paramount duty of said court, or any court for that matter, to investigate before acting, to do justice to the parties concerned. And one way of determining the will or desire of the employees is what the respondent court had suggested, that is, a plebiscite not to be conducted by the Department of Labor, as contemplated in a certification election under Sec. 12 of the Magna Charta of Labor, R. A. No. 785, but by the Court itself.

3. Size of Unit and Effect on Self-Organization Filoil Refinery Corp v. Filoil Supervisory. The Court is likewise aware of the ineffectiveness of a small union with a scanty members as bargaining unit. The breaking up of bargaining agents into tiny units will greatly impair their organizational value. It has always been the policy of the United States National Labor Relations Board that, in deciding upon whether to include or exclude a group of employees from a bargaining unit, the Board has always allowed itself to be guided by the determination as to whether its action 'will insure to the employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act' (20 NLRB 705). We see no reason why this Tribunal whose basic functions are the same as that of the NLRB, should do less or otherwise depart from this sound policy."

4. CBA Coverage Farly Fulache v. ABS-CBN. As regular employees, the petitioners fall within the coverage of the bargaining unit and are therefore entitled to CBA benefits as a matter of law and contract. || This declaration unequivocally settled the petitioners employment status: they are ABS-CBNs regular employees entitled to the benefits and privileges of regular employees. These benefits and privileges arise from entitlements under the law (specifically, the Labor Code and its related laws), and from their employment contract as regular ABS-CBN employees, part of which is the CBA if they fall within the coverage of this agreement. Thus, what only needs to be resolved as an issue for purposes of implementation of the decision is whether the petitioners fall within CBA coverage

5. Effect of Prior Agreement General Rubber v. BLR. Perhaps it is unusual for the petitioner to have to deal with two (2) collective bargaining unions but there is no one to blame except petitioner itself for creating the situation it is in. From the beginning of the existence in 1963 of a bargaining unit for the employees up to the present, petitioner had sought to indiscriminately suppress the members of the private respondent's right to self-organization provided for by law. Petitioner, in justification of its action, maintained that the exclusion of the members of the private respondent from the bargaining union of the rank-and-file or from forming their own union was agreed upon by petitioner corporation with the previous bargaining representatives namely: the General "Rubber Workers Union-PTGWO, the General Workers Union-NAFLU and the General Rubber Workers Union (independent). Such posture has no leg to stand on. It has not been shown that private respondent was privy to this agreement. And even if it were so, it can never bind subsequent federations and unions particularly private respondent-union because it is a curtailment of the right to self-organization guaranteed by the labor laws. However, to prevent any difficulty and to avoid confusion to all concerned and, more importantly, to fulfill the policy of the New Labor Code as well as to be consistent with Our ruling in the Bulletin case, supra, the monthly-paid rank-and-file employees should be allowed to join the union of the daily-paid-rank-and-file employees of petitioner so that they can also avail of the CBA benefits or to form their own rank-and-file union, without prejudice to the certification election that has been ordered.

C. Determining Agency LC, 226. Bureau of Labor Relations. - The Bureau of Labor Relations and the Labor Relations Divisions in the regional offices of the Department of Labor, shall have original and exclusive authority to act, at their own initiative or upon request of either or both parties, on all inter-union and intra-

20


Janz Hanna Ria N. Serrano union conflicts, and all disputes, grievances or problems arising from or affecting labor-management relations in all workplaces, whether agricultural or non-agricultural, except those arising from the implementation or interpretation of collective bargaining agreements which shall be the subject of grievance procedure and/or voluntary arbitration. The Bureau shall have fifteen (15) working days to act on labor cases before it, subject to extension by agreement of the parties. (As amended by Section 14, Republic Act No. 6715, March 21, 1989) LC, 232. Prohibition on certification election. - The Bureau shall not entertain any petition for certification election or any other action which may disturb the administration of duly registered existing collective bargaining agreements affecting the parties except under Articles 253, 253-A and 256 of this Code. (As amended by Section 15, Republic Act No. 6715, March 21, 1989). Filoi v. Filoil SCEA.

VI. Union Representation: Establishing Union Majority Status A. Pre-condition: Employer-Employee Relationship

AFWU v. Cia Maritima. Under the law 16 the duty to bargain collectively arises only between the "employer" and its "employees". Where neither party is an "employer" nor an "employee" of the other, no such duty would exist. Needless to add, where there is no duty to bargain collectively the refusal to bargain violates no right.

B. Methods of Establishing Major Status 1. Policy/Rationale

LC, 255. supra LC, 242(b). To be certified as the exclusive representative of all the employees in an appropriate bargaining unit for purposes of collective bargaining Book V, Rule VI, Sec. 1. It is the policy of the State to promote free trade unionism through expeditious procedures governing the choice of an exclusive bargaining agent. The determination of such exclusive bargaining agent is a non-litigious proceeding and, as far as practicable, shall be free from technicalities of law and procedure, provided only that in every case, the exclusive bargaining agent enjoys the majority support of all the employees in the bargaining unit. LC, 211(b). To promote free trade unionism as an instrument for the enhancement of democracy and the promotion of social justice and development Const., Art. XIII, Sec. 3., supra Reyes v. Trajano. supra Samahang Manggagawa sa PREMEX v. Sec. of Labor. By virtue of Executive Order No. 111, which became effective on March 4, 1987, the direct certification previously allowed under the Labor Code had been discontinued as a method of selecting the exclusive bargaining agents of the workers. 2 Certification election is the most effective and the most democratic way of determining which labor organization can truly represent the working force in the appropriate bargaining unit of a company.

2. Representation Role LC, 255. Supra Tabigue v. ICEC. Petitioners have not, however, been duly authorized to represent the union. Apropos is this Court’s pronouncement in Atlas Farms, Inc. v. National Labor Relations Commission,26 viz: x x x Pursuant to Article 260 of the Labor Code, the parties to a CBA shall name or designate their respective representatives to the grievance machinery and if the grievance is unsettled in that level, it shall automatically be referred to the voluntary arbitrators designated in advance by parties to a CBA. Consequently only disputes involving the union and the company shall be referred to the grievance machinery or voluntary arbitrators

3. Voluntary Recognition LC, 242(c). To be furnished by the employer, upon written request, with its annual audited financial statements, including the balance sheet and the profit and loss statement, within thirty (30) calendar days from the date of receipt of the request, after the union has been duly recognized by the employer or certified as the sole and exclusive bargaining representative of the employees in the bargaining unit, or within sixty (60) calendar days before the expiration of the existing collective bargaining agreement, or during the collective bargaining negotiation Book V, Rule I, Sec. 1(bbb). "Voluntary Recognition" refers to the process by which a legitimate labor union is recognized by the employer as the exclusive bargaining representative or agent in a bargaining unit, reported with the Regional Office in accordance with Rule VII, Section 2 of these Rules. Book V, Rule VI, Sec. 2. Determination of representation status; modes. - The determination of an exclusive bargaining agent shall be through voluntary recognition in cases where there is only one legitimate labor organization operating within the bargaining unit, or through certification, run-off or consent election as provided in these Rules. Book V, Rule VII.

Section 1. When and where to file. - In unorganized establishments with only one legitimate labor organization, the employer may voluntarily recognize the representation status of such a union. Within thirty (30) days from such recognition, the employer and union shall submit a notice of voluntary recognition with the Regional Office which issued the recognized labor union's certificate of registration or certificate of creation of a chartered local. Section 2. Requirements for voluntary recognition. - The notice of voluntary recognition shall be accompanied by the original copy and two (2) duplicate copies of the following documents:

(a) a joint statement under oath of voluntary recognition attesting to the fact of voluntary recognition; (b) certificate of posting of the joint statement of voluntary recognition for fifteen (15) consecutive days in at least two (2) conspicuous

places in the establishment or bargaining unit where the union seeks to operate; (c) the approximate number of employees in the bargaining unit, accompanied by the names of those who support the voluntary

recognition comprising at least a majority of the members of the bargaining unit; and (d) a statement that the labor union is the only legitimate labor organization operating within the bargaining unit.

All accompanying documents of the notice for voluntary recognition shall be certified under oath by the employer representative and president of the recognized labor union. Section 3. Action on the Notice. - Where the notice of voluntary recognition is sufficient in form, number and substance and where there is no other registered labor union operating within the bargaining unit concerned, the Regional Office, through the Labor Relations Division shall, within ten (10) days from receipt of the notice, record the fact of voluntary recognition in its roster of legitimate labor unions and notify the labor union concerned. Where the notice of voluntary recognition is insufficient in form, number and substance, the Regional Office shall, within the same period, notify the labor union of its findings and advise it to comply with the necessary requirements. Where neither the employer nor the labor union failed to complete the requirements for voluntary recognition under Section 2 of this Rule within thirty (30) days from receipt of the advisory, the Regional Office shall return the notice for voluntary recognition together with all its accompanying documents without prejudice to its re-submission. Section 4. Effect of recording of fact of voluntary recognition. - From the time of recording of voluntary recognition, the recognized labor union shall enjoy the rights, privileges and obligations of an existing bargaining agent of all the employees in the bargaining unit. Entry of voluntary recognition shall bar the filing of a petition for certification election by any labor organization for a period of one (1) year from the date of entry of voluntary recognition. Upon expiration of this one-year period, any legitimate labor organization may file a petition for certification election in the same bargaining unit represented by the voluntarily recognized union, unless a collective bargaining agreement between the employer and voluntarily recognized labor union was executed and registered with the Regional Office in accordance with Rule XVII of these Rules.

Effects: Book V, Rule VII, Sec. 4 Sta. Lucia v. Sec. of Labor. The employer may voluntarily recognize the representation status of a union in unorganized establishments.12 SLECC was not an unorganized establishment when it voluntarily recognized SMSLEC as its exclusive bargaining representative on 20 July 2001.

http://www.lawphil.net/judjuris/juri2009/dec2009/gr_183335_2009.html#fnt26

http://www.lawphil.net/judjuris/juri2009/aug2009/gr_162355_2009.html#fnt12

21


Janz Hanna Ria N. Serrano 4. Elections

a. Certification election LC, 256. Representation Issue in Organized Establishments. - In organized establishments, when a verified petition questioning the majority status of the incumbent bargaining agent is filed by any legitimate labor organization including a national union or federation which has already issued a charter certificate to its local chapter participating in the certification election or a local chapter which has been issued a charter certificate by the national union or federation before the Department of Labor and Employment within the sixty (60)-day period before the expiration of the collective bargaining agreement, the Med-Arbiter shall automatically order an election by secret ballot when the verified petition is supported by the written consent of at least twenty-five percent (25%) of all the employees in the bargaining unit to ascertain the will of the employees in the appropriate bargaining unit. To have a valid election, at least a majority of all eligible voters in the unit must have cast their votes. The labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit. When an election which provides for three or more choices results in no choice receiving a majority of the valid votes cast, a run-off election shall be conducted between the labor unions receiving the two highest number of votes: Provided, That the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast. In cases where the petition was filed by a national union or federation, it shall not be required to disclose the names of the local chapter’s officers and members. At the expiration of the freedom period, the employer shall continue to recognize the majority status of the incumbent bargaining agent where no petition for certification election is filed. (As amended by Section 23, Republic Act No. 6715, March 21, 1989 and Section 10, Republic Act No. 9481 which lapsed into law on May 25, 2007 and became effective on June 14, 2007). Book V, Rule I, Sec. 1(h). "Certification Election" or "Consent Election" refers to the process of determining through secret ballot the sole and exclusive representative of the employees in an appropriate bargaining unit for purposes of collective bargaining or negotiation. A certification election is ordered by the Department, while a consent election is voluntarily agreed upon by the parties, with or without the intervention by the Department. Book V, Rule I, Sec. 1(ll). "Organized Establishment" refers to an enterprise where there exists a recognized or certified sole and exclusive bargaining agent. Book V, Rule VIII Certification Election

Section 1. Who may file. - Any legitimate labor organization, including a national union or federation that has issued a cherter certificate to its local/chapter or the local/chapter itself, may file a petition for certification election.

A National Union or federation filing a petition in behalf of its local/chapter shall not be required to disclose the names of the local/chapter’s officers and members, but shall attach to the petition the charter certificate it issued to its local/chapter.

When requested to bargain collectively in a bargaining unit where no registered collective bargaining agreement exists, , an employer may file a petition for certification election with the Regional Office.

In all cases, whether the petition for certification election is filed by an employer or legitimate labor organization, the employer shall not be considered a [arty thereto with a concomitant right to oppose a petition for certification election, the employer’s participation in such proceedings shall be limited to: (1) being notified or informed of petitions of such nature; and (2) submitting the list of employees during the pre-election conference should the Med-Arbiter act favorably on the petition

Any employee has the right to intervene for the protection of his individual right. Section 2. Where to file. - A petition for certification election shall be filed with the Regional Office which issued the petitioning union's certificate of registration/certificate of creation of chartered local.

The petition shall be heard and resolved by the Med-Arbiter. Where two or more petitions involving the same bargaining unit are filed in one Regional Office, the same shall be

automatically consolidated with the Med-Arbiter who first acquired jurisdiction. Where the petitions are filed in different Regional Offices, the Regional Office in which the petition was first filed shall exclude all others; in which case, the latter shall indorse the petition to the former for consolidation. Section 3. When to file. - A petition for certification election may be filed anytime, except:

(a) when a fact of voluntary recognition has been entered or a valid certification, consent or run-off election has been conducted within the bargaining unit within one (1) year prior to the filing of the petition for certification election. Where an appeal has been filed from the order of the Med-Arbiter certifying the results of the election, the running of the one year period shall be suspended until the decision on the appeal has become final and executory;

(b) when the duly certified union has commenced and sustained negotiations in good faith with the employer in accordance with Article 250 of the Labor Code within the one year period referred to in the immediately preceding paragraph;

(c) when a bargaining deadlock to which an incumbent or certified bargaining agent is a party had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout;

(d) when a collective bargaining agreement between the employer and a duly recognized or certified bargaining agent has been registered in accordance with Article 231 of the Labor Code. Where such collective bargaining agreement is registered, the petition may be filed only within sixty (60) days prior to its expiry.

Section 4. Form and contents of petition. - The petition shall be in writing, verified under oath by the president of petitioning labor organization. Where a federation or national union files a petition in behalf of its local or affiliate, the petition shall be verified under oath by the president or its duly authorized representative of the federation or national union. In case the employer files the petition, the owner, president, or any corporate officer, who is authorized by the board of directors, shall verify the petition. The petition shall contain the following:

(a) the name of petitioner, its address, and affiliation if appropriate, the date and number of its certificate of registration. If the petition is filed by a federation or national union, the national president or his/her duly authorized representative shall certify under oath as to the existence of its local/chapter in the establishment and attaching thereto the charter certificate or a certified true copy thereof. If the petition is filed by a local/chapter it shall attach its charter certificate or a certified true copy thereof;

(b) the name, address and nature of employer's business; (c) the description of the bargaining unit; (d) the approximate number of employees in the bargaining unit; (e) the names and addresses of other legitimate labor unions in the bargaining unit; (f) a statement indicating any of the following circumstances:

(1) that the bargaining unit is unorganized or that there is no registered collective bargaining agreement covering the employees in the bargaining unit;

(2) if there exists a duly registered collective bargaining agreement, that the petition is filed within the sixty-day freedom period of such agreement; or

(3) if another union had been previously recognized voluntarily or certified in a valid certification, consent or run-off election, that the petition is filed outside the one-year period from date of recording of such voluntary recognition or conduct of certification or run-off election and no appeal is pending thereon.

(g) in an organized establishment, the signature of at least twenty-five percent (25%) of all employees in the appropriate bargaining unit shall be attached to the petition at the time of its filing; and

(h) other relevant facts.

22


Janz Hanna Ria N. Serrano Section 5. Raffle of the case. – The Regional Director or his/her duly authorized representative upon receipt of the petition shall immediately assign it by raffle to a mediator-arbiter. The raffle shall be done in the presence of the petitioner if the latter so desires.

Section 6. Notice of preliminary conference. – The petition shall immediately be transmitted to the assigned mediator-arbiter who shall immediately prepare and serve a notice of preliminary conference to be held within 10 working days from the mediator-arbiter’s receipt of the petition

The service of the petition to the employer and of the notice of preliminary conference to the petitioner and the incumbent bargaining agent (if any) shall be made within 3 working days from the Med-Arbiter’s receipt of the petition. The service may be made by personal service, by registered mail or by courier service.

A copy of the petition and of the notice of preliminary conference shall be posted within the same 3 day period in at least 2 conspicuous places in the establishment. In multiple-location workplaces, the posting shall be made in at least two conspicuous places in every location.

Section 7. Forced Intervenor. - The incumbent bargaining agent shall automatically be one of the choices in the certification election as forced intervenor.

Section 8. Motion for Intervention. - When a petition for certification election was filed in an organized establishment, any legitimate labor union other than the incumbent bargaining agent operating within the bargaining unit may file a motion for intervention with the Med-Arbiter during the freedom period of the collective bargaining agreement. The form and contents of the motion shall be the same as that of a petition for certification election.

In an unorganized establishment, the motion shall be filed at any time prior to the decision of the Med-Arbiter. The form and contents of the motion shall likewise be the same as that of a petition for certification election. The motion for intervention shall be resolved in the same decision issued in the petition for certification election.

Section 9. Preliminary Conference; Hearing. - The Med-Arbiter shall conduct a preliminary conference and hearing within ten (10) days from receipt of the petition to determine the following: (a) the bargaining unit to be represented; (b) contending labor unions; (c) possibility of a consent election; (d) existence of any of the bars to certification election under Section 3 of this Rule; and (e) such other matters as may be relevant for the final disposition of the case.

Section 10. Consent Election; Agreement. – The Contending Unions may agree to the holding of an election, in which case it shall be called a consent election. The Med-Arbiter shall forthwith call for the consent election, reflecting the parties’ agreement and the call in the minutes of the conference

The mediator-arbiter shall, immediately forward the records of the petition to the Regional Director or his/her authorized representative for the determination of the Election Officer who shall be chosen by raffle in the presence of the representatives of the contending unions if they so desire.

The first pre-election conference shall be scheduled within 10 days from the date of the consent election agreement. Subsequent conferences may be called to expedite and facilitate the holding of the consent election.

To afford an individual employee-voter an informed choice where a local/chapter is the petitioning union, the local/chapter shall secure its certificate of creation at least 5 working days before the date of the consent election.

Section 11. Number of Hearings; Pleadings. - If the contending unions fail to agree to a consent election during the preliminary conference, the Med-Arbiter may conduct as many hearings as he/she may deem necessary, but in no case shall the conduct thereof exceed fifteen (15) days from the date of the scheduled preliminary conference/ hearing, after which time the petition shall be considered submitted for decision. The Med-Arbiter shall have control of the proceedings. Postponements or continuances shall be discouraged.

Within the same 15-day period within which the petition is heard, the contending labor unions may file such pleadings as they may deem necessary for the immediate resolution of the petition. Extensions of time shall not be entertained. All motions shall be resolved by the Med-Arbiter in the same order or decision granting or denying the petition.

Section 12. Failure to appear despite notice. - The failure of any party to appear in the hearing(s) when notified or to file its pleadings shall be deemed a waiver of its right to be heard. The Med-Arbiter, however, when agreed upon by the parties for meritorious reasons may allow the cancellation of scheduled hearing(s). The cancellation of any scheduled hearing(s) shall not be used as a basis for extending the 15-day period within which to terminate the same.

Section 13. Order/Decision on the petition. – Within 10 days from the date of the last hearing, the Mediator-Arbiter shall formally issue a ruling granting or denying the petition, except in organized establishments where the grant of the petition can only be made after the lapse of the freedom period.

The ruling for the conduct of a certification election shall state the following:

(a) the name of the employer or establishment; (b) a description of the bargaining unit; (c) a statement that none of the grounds for dismissal enumerated in the succeeding paragraph exists; (d) the names of the contending labor unions which sgall appear in the following order: the petitioner unions in the order of the

date of filing of their respective petitions; the forced intervenor, and “no union”; (e) to afford an individual employee-voter an informed choice where a local/chapter is one of the contending unions, a directive

to an unregistered local/chapter or a federation/national union representing an unregistered local/chapter to personally submit to the election officer its certificate of creation at least 5 working dats before the actial conduct of the certification election

23


Janz Hanna Ria N. Serrano non-submission of this requirement as certified by the election officer shall disqualify the local/chapter from participating in the certification election; and,

(f) a directive to the employer and the contending union(s) to submit within ten (10) days from receipt of the order, the certified list of employees in the bargaining unit, or where necessary, the payrolls covering the members of the bargaining unit for the last three (3) months prior to the issuance of the order.

Section 14. Denial of the petition; Grounds. - The Mediator-Arbiter may dismiss the petition on any of the following grounds:

(a) the petitioning union or national union/federation is not listed in the Department's registry of legitimate labor unions or that its legal personality has been revoked or cancelled with finality in accordance with Rule XIV of these Rules;

(b) failure of a local/chapter or national union/federation to submit a duly issued charter certificate upon filing of the petition for certification election

(c) filing the petition before or after the freedom period of a duly registered collective bargaining agreement; provided that the sixty-day period based on the original collective bargaining agreement shall not be affected by any amendment, extension or renewal of the collective bargaining agreement;

(d) filing of a petition within one (1) year from the date of recording of the voluntary recognition or within the same period from a valid certification, consent or run-off election where no appeal on the results of the certification, consent or run-off election is pending;

(e) where a duly certified union has commenced and sustained negotiations with the employer in accordance with Article 250 of the Labor Code within the one-year period referred to in Section 14.c of this Rule, or where there exists a bargaining deadlock which has been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout where an incumbent or certified bargaining agent is a party;

(f) in case of an organized establishment, the failure to submit the twenty-five percent (25%) signature requirement to support the filing of the petition for certification election;

(g) non-appearance of the petitioner for 2 consecutive scheduled conferences before the med-arbiter despite due notice; and, (h) absence of employer-employee relationship between all the members of the petitioning union and the establishment where

the proposed bargaining unit is sought to be represented.

Section 15. Prohibited Ground for the denial/suspension of the petition – The inclusion as union members of employees outside the bargaining unit shall not be a ground for the cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership of said unions

Section 16. Ancillary Issues- All issues pertaining to the existence of employer-employee relationship, eligibility or mixture in union membership raised before the Med-Arbiter during the hearing(s) and in the pleadings shall be resolved in the same order or decision granting or denying the petition for certification election. Any question pertaining to the validity of petitioning union's certificate of registration or its legal personality as a labor organization, validity of registration and execution of collective bargaining agreements shall be heard and resolved by the Regional Director in an independent petition for cancellation of its registration and not by the Med-Arbiter in the petition for certification election, unless the petitioning union is not found in the Department's roster of legitimate labor organizations or an existing collective bargaining agreement is unregistered with the Department.

Section 17. Release of Order/Decision within ten (10) days from the last hearing, -. - The Med-Arbiter shall release his/her order or decision granting or denying the petition personally to the parties on an agreed date and time.

Section 18. Appeal. - The order granting the conduct of a certification election in an unorganized establishment shall not be subject to appeal. Any issue arising therefrom may be raised by means of protest on the conduct and results of the certification election.

The order granting the conduct of a certification election in an organized establishment and the decision dismissing or denying the petition, whether in an organized or unorganized establishment, may be appealed to the Office of the Secretary within ten (10) days from receipt thereof.

The appeal shall be verified under oath and shall consist of a memorandum of appeal, specifically stating the grounds relied upon by the appellant with the supporting arguments and evidence.

Section 19. Where to file appeal. - The memorandum of appeal shall be filed in the Regional Office where the petition originated, copy furnished the contending unions and the employer, as the case may be. Within twenty-four (24) hours from receipt of the appeal, the Regional Director shall cause the transmittal thereof together with the entire records of the case to the Office of the Secretary.

Section 20. Finality of Order/Decision. - Where no appeal is filed within the ten-day period, the Med-Arbiter shall enter the finality of the order/decision in the records of the case and cause the transmittal of the records of the petition to the Regional Director.

Section 21. Period to Reply. - A reply to the appeal may be filed by any party to the petition within ten (10) days from receipt of the memorandum of appeal. The reply shall be filed directly with the Office of the Secretary.

Section 22. Decision of the Secretary. - The Secretary shall have fifteen (15) days from receipt of the entire records of the petition within which to decide the appeal. The filing of the memorandum of appeal from the order or decision of the Med-Arbiter stays the holding of any certification election.

The decision of the Secretary shall become final and executory after ten (10) days from receipt thereof by the parties. No motion for reconsideration of the decision shall be entertained.

Section 23. Transmittal of records to the Regional Office. - Within forty-eight (48) hours from notice of receipt of decision by the parties and finality of the decision, the entire records of the case shall be remanded to the Regional Office of origin for implementation. Implementation of the decision shall not be stayed unless restrained by the appropriate court.

Section 24. Effects of consent election. - Where a petition for certification election had been filed, and upon the intercession of the Med-Arbiter, the parties agree to hold a consent election, the results thereof shall constitute a bar to the holding of a certification

24


Janz Hanna Ria N. Serrano election for one (1) year from the holding of such consent election. Where an appeal has been filed from the results of the consent election, the running of the one-year period shall be suspended until the decision on appeal has become final and executory.

Where no petition for certification election was filed but the parties themselves agreed to hold a consent election with the intercession of the Regional Office, the results thereof shall constitute a bar to another petition for certification election.

Section 25. Effects of early agreements. - The representation case shall not be adversely affected by a collective bargaining agreement registered before or during the last sixty (60) days of a subsisting agreement or during the pendency of the representation case.

Section 26. Non-availability of Med-Arbiter. - Where there is no Med-Arbiter available in the Regional Office by reason of vacancy, prolonged absence, or excessive workload as determined by the Regional Director, he/she shall transmit the entire records of the case to the Bureau, which shall within forty-eight (48) hours from receipt assign the case to any Med-Arbiter from any of the Regional Offices or from the Bureau.

Book V, Rule IX Conduct of Certification Election Section 1. Raffle of the case. - Within twenty-four (24) hours from receipt of the notice of entry of final judgment granting the conduct of a certification election, the Regional Director shall cause the raffle of the case to an Election Officer who shall have control of the pre-election conference and election proceedings. Section 2. Pre-election conference. - Within twenty-four (24) hours from receipt of the assignment for the conduct of a certification election, the Election Officer shall cause the issuance of notice of pre-election conference upon the contending unions and the employer, which shall be scheduled within ten (10) calendar days from receipt of the assignment. The employer shall be required to submit the certified list of employees in the bargaining unit, or where necessary, the payrolls covering the members of the bargaining unit at the time of the filing of the petition.

The pre-election conference shall set the mechanics for the election and shall determine, among others, the following:

(a) date, time and place of the election, which shall not be later than forty-five (45) days from the date of the first pre-election conference, and shall be on a regular working day and within the employer's premises, unless circumstances require otherwise;

(b) list of eligible and challenged voters; (c) number and location of polling places or booths and the number of ballots to be prepared with appropriate

translations, if necessary; (d) name of watchers or representatives and their alternates for each of the parties during election; (e) mechanics and guidelines of the election.

Section 3. Waiver of right to be heard. - Failure of any party to appear during the pre-election conference despite notice shall be considered as a waiver of its right to be present and to question or object to any of the agreements reached in the pre-election conference. However, this shall not deprive the non-appearing party of the right to be furnished notices of and to attend subsequent pre-election conferences.

Section 4. Minutes of pre-election conference. - The Election Officer shall keep the minutes of matters raised and agreed upon during the pre-election conference. The parties shall acknowledge the completeness and correctness of the entries in the minutes by affixing their signatures thereon. Where any of the parties refuse to sign the minutes, the Election Officer shall note such fact in the minutes, including the reason for refusal to sign the same. In all cases, the parties shall be furnished a copy of the minutes.\

The pre-election conference shall be completed within thirty (30) days from the date of the first hearing.

Section 5. Qualification of voters; inclusion-exclusion. - All employees who are members of the appropriate bargaining unit sought to be represented by the petitioner at the time of the issuance of the order granting the conduct of a certification election shall be eligible to vote. An employee who has been dismissed from work but has contested the legality of the dismissal in a forum of appropriate jurisdiction at the time of the issuance of the order for the conduct of a certification election shall be considered a qualified voter, unless his/her dismissal was declared valid in a final judgment at the time of the conduct of the certification election.

In case of disagreement over the voters' list or over the eligibility of voters, all contested voters shall be allowed to vote. But their votes shall be segregated and sealed in individual envelopes in accordance with Sections 10 and 11 of this Rule.

Section 6. Posting of Notices. - The Election Officer shall cause the posting of notice of election at least ten (10) days before the actual date of the election in two (2) most conspicuous places in the company premises. The notice shall contain:(a) the date and time of the election; (b) names of all contending unions; (c) the description of the bargaining unit and the list of eligible and challenged voters.

The posting of the notice of election, the information required to be included therein and the duration of posting cannot be waived by the contending unions or the employer.

Section 7. Secrecy and sanctity of the ballot. - To ensure secrecy of the ballot, the Election Officer, together with the authorized representatives of the contending unions and the employer, shall before the start of the actual voting, inspect the polling place, the ballot boxes and the polling booths.

Section 8. Preparation of ballots. - The Election Officer shall prepare the ballots in English and Filipino or the local dialect. The number of ballots should correspond to the number of voters in the bargaining unit plus a reasonable number of extra ballots for contingencies. All ballots shall be signed at the back by the Election Officer and an authorized representative each of the contending unions. A party who refuses or fails to sign the ballots waives its right to do so and the Election Officer shall enter the fact of refusal or failure and the reason therefor in the records of the case.

Section 9. Marking of votes. - The voter must put a cross ( x ) or check ( ü) mark in the square opposite the name of the union of his choice or "No Union" if he/she does not want to be represented by any union

25


Janz Hanna Ria N. Serrano If a ballot is torn, defaced or left unfilled in such a manner as to create doubt or confusion or to identify the voter, it shall be considered spoiled. If the voter inadvertently spoils a ballot, he/she shall return it to the Election Officer who shall destroy it and give him/her another ballot.

Section 10. Procedure in the challenge of votes. – The ballot of the voter who has been properly challenged during the pre-election conferences, shall be placed in an envelope which shall be sealed by the Election Officer in the presence of the voter and the representatives of the contending unions. The Election Officer shall indicate on the envelope the voter's name, the union challenging the voter, and the ground for the challenge. The sealed envelope shall then be signed by the Election Officer and the representatives of the contending unions. The Election Officer shall note all challenges in the minutes of the election and shall be have custody of all the envelopes containing the challenged votes. The envelopes shall be opened and the question of eligibility shall be passed upon by the mediator-arbiter only if the number of segregated voters will materially alter the results of the election.

Section 11. On-the-spot questions. - The Election Officer shall rule on any question relating to and raised during the conduct of the election. In no case, however, shall the election officer rule on any of the grounds for challenge specified in the immediately preceding section.

Section 12. Protest; when perfected. - Any party-in-interest may file a protest based on the conduct or mechanics of the election. Such protests shall be recorded in the minutes of the election proceedings. Protests not so raised are deemed waived.

The protesting party must formalize its protest with the Med-Arbiter, with specific grounds, arguments and evidence, within five (5) days after the close of the election proceedings. If not recorded in the minutes and formalized within the prescribed period, the protest shall be deemed dropped.

Section 13. Canvassing of votes. - The votes shall be counted and tabulated by the Election Officer in the presence of the representatives of the contending unions. Upon completion of the canvass, the Election Officer shall give each representative a copy of the minutes of the election proceedings and results of the election. The ballots and the tally sheets shall be sealed in an envelope and signed by the Election Officer and the representatives of the contending unions and transmitted to the Med-Arbiter, together with the minutes and results of the election, within twenty-four (24) hours from the completion of the canvass.

Where the election is conducted in more than one region, consolidation of results shall be made within fifteen (15) days from the conduct thereof.

Section 14. Conduct of election and canvass of votes. - The election precincts shall open and close on the date and time agreed upon during the pre-election conference. The opening and canvass of votes shall proceed immediately after the precincts have closed. Failure of the representative/s of the contending unions to appear during the election proceedings and canvass of votes shall be considered a waiver of the right to be present and to question the conduct thereof.

Section 15. Certification of Collective Bargaining Agent. - The union which obtained a majority of the valid votes cast shall be certified as the sole and exclusive bargaining agent of all the employees in the appropriate bargaining unit within five (5) days from the day of the election, provided no protest is recorded in the minutes of the election.

Section 16. Failure of election. - Where the number of votes cast in a certification or consent election is less than the majority of the number of eligible voters and there are no material challenged votes, the Election Officer shall declare a failure of election in the minutes of the election proceedings.

Section 17. Effect of failure of election. - A failure of election shall not bar the filing of a motion for the immediate holding of another certification or consent election within six (6) months from date of declaration of failure of election.

Section 18. Action on the motion. - Within twenty-four (24) hours from receipt of the motion, the Election Officer shall immediately schedule the conduct of another certification or consent election within fifteen (15) days from receipt of the motion and cause the posting of the notice of certification election at least ten (10) days prior to the scheduled date of election in two (2) most conspicuous places in the establishment. The same guidelines and list of voters shall be used in the election.

Section 19. Proclamation and certification of the result of the election. - Within twenty-four (24) hours from final canvass of votes, there being a valid election, the Election Officer shall transmit the records of the case to the Med-Arbiter who shall, within the same period from receipt of the minutes and results of election, issue an order proclaiming the results of the election and certifying the union which obtained a majority of the valid votes cast as the sole and exclusive bargaining agent in the subject bargaining unit, under any of the following conditions:(a) no protest was filed or, even if one was filed, the same was not perfected within the five-day period for perfection of the protest; (b) no challenge or eligibility issue was raised or, even if one was raised, the resolution of the same will not materially change the results of the elections.

The winning union shall have the rights, privileges and obligations of a duly certified collective bargaining agent from the time the certification is issued.

Where majority of the valid votes cast results in "No Union" obtaining the majority, the Med-Arbiter shall declare such fact in the order.

Book V, Rule X Run-off Elections Section 1. When proper. - When an election which provides for three (3) or more choices results in none of the contending unions receiving a majority of the valid votes cast, and there are no objections or challenges which if sustained can materially alter the results, the Election Officer shall motu propio conduct a run-off election within ten (10) days from the close of the election proceedings between the labor unions receiving the two highest number of votes; provided, that the total number of votes for all contending unions is at least fifty (50%) percent of the number of votes cast. "No Union" shall not be a choice in the run-off election. Notice of run-off elections shall be posted by the Election Officer at least five (5) days before the actual date of run-off election.

26


Janz Hanna Ria N. Serrano Section 2. Qualification of voters. - The same voters' list used in the certification election shall be used in the run-off election. The ballots in the run-off election shall provide as choices the unions receiving the highest and second highest number of the votes cast. The labor union receiving the greater number of valid votes cast shall be certified as the winner, subject to Section 20, Rule IX.

b. Consent Election Book V, Rule I, Sec. 1 (h) supra Book V, Rule VIII Sec. 10 supra Book V, Rule VIII Sec. 11 supra Book V, Rule VIII, Sec. 23. supra Effects -- Book V, Rule Sec. 23.

c. Run-off Election LC, 256, par. 1, penultimate sentence. When an election which provides for three or more choices results in no choice receiving a majority of the valid votes cast, a run-off election shall be conducted between the labor unions receiving the two highest number of votes: Provided, That the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast. Book V, Rule I, Sec. 1 (ss). "Run-off Election" refers to an election between the labor unions receiving the two (2) highest number of votes in a certification or consent election with three (3) or more choices, where such a certified or consent results in none of the three (3) or more choices receiving the majority of the valid votes cast; provided that the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast. Book V, Rule X. supra

5. Venue of Petition Book V, Rule VIII, Sec. 2 supra Book V, Rule VII, Sec. 1. When and where to file. - In unorganized establishments with only one legitimate labor organization, the employer may voluntarily recognize the representation status of such a union. Within thirty (30) days from such recognition, the employer and union shall submit a notice of voluntary recognition with the Regional Office which issued the recognized labor union's certificate of registration or certificate of creation of a chartered local. Cruzvale v. Laguesma. Section 1, Rule V, Book V of the Omnibus Rules Implementing the Labor Code refers only to cases where the place of work of the employees and the place of the principal office of the employer are within the same territorial jurisdiction of the Regional Office where the petition for certification election is filed. The said provision does not apply to the filing of petitions for certification election where the place of work of the employees and the place of principal office of the employer are located within the territorial jurisdictions of different regional offices. We assume that in the drafting of the Omnibus Rules, the Secretary of Labor and Employment took into consideration the fact that there are many companies with factories located in places different from places where the corporate offices are located.

C. Certification Election – Process Book V, Rules VIII, IX, X. 1. The Union as Initiating Party

LC, 242(b). To be certified as the exclusive representative of all the employees in an appropriate bargaining unit for purposes of collective bargaining Book V, Rule VIII, Sec. 1. supra a. Organized Establishment

LC, 256. Representation Issue in Organized Establishments. - In organized establishments, when a verified petition questioning the majority status of the incumbent bargaining agent is filed by any legitimate labor organization including a national union or federation which has already issued a charter certificate to its local chapter participating in the certification election or a local chapter which has been issued a charter certificate by the national union or federation before the Department of Labor and Employment within the sixty (60)-day period before the expiration of the collective bargaining agreement, the Med-Arbiter shall automatically order an election by secret ballot when the verified petition is supported by the written consent of at least twenty-five percent (25%) of all the employees in the bargaining unit to ascertain the will of the employees in the appropriate bargaining unit. To have a valid election, at least a majority of all eligible voters in the unit must have cast their votes. The labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit. When an election which provides for three or more choices results in no choice receiving a majority of the valid votes cast, a run-off election shall be conducted between the labor unions receiving the two highest number of votes: Provided, That the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast. In cases where the petition was filed by a national union or federation, it shall not be required to disclose the names of the local chapter’s officers and members. At the expiration of the freedom period, the employer shall continue to recognize the majority status of the incumbent bargaining agent where no petition for certification election is filed. (As amended by Section 23, Republic Act No. 6715, March 21, 1989 and Section 10, Republic Act No. 9481 which lapsed into law on May 25, 2007 and became effective on June 14, 2007). LC, 253. Duty to bargain collectively when there exists a collective bargaining agreement. – When there is a collective bargaining agreement, the duty to bargain collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime. However, either party can serve a written notice to terminate or modify the agreement at least sixty (60) days prior to its expiration date. It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties. Book V, Rule I, Sec. 1(ll). "Organized Establishment" refers to an enterprise where there exists a recognized or certified sole and exclusive bargaining agent i. Petition Before Freedom Period

LC, 253. supra LC, 256. Supra Book V, Rule VIII, Sec. 3(d) supra Book V, Rule VIII, Sec. 13 par. 1. Supra Atlantic Gulf v. Laguesma. Consequently, the existence of a duly registered Collective Bargaining Agreement between the petitioner and URFA, which is the sole and exclusive bargaining representative of all the regular rank-and-file employees of the petitioner including the regular project employees with more than one year of service, bars any other labor organization from filing a petition for certification election except within the 60-day period prior to the expiration of the Collective Bargaining Agreement. To rule otherwise would negate the legislative intent in the enactment of Article 232 of the Labor Code which was designed to ensure industrial peace between the employer and its employees during the existence of the collective bargaining agreement.

ii. Petition Beyond Freedom Period NCUSI v. Ferrer-Calleja. The clear mandate of the aforequoted section (Sec. 6 Rule 5) is that the petition for certification election filed by the petitioner NACUSIP-TUCP should be dismissed outright, having been filed outside the 60-day freedom period or a period of more than one (1) year after the CBA expired. || It is a rule in this jurisdiction that only a certified collective bargaining agreement — i.e., an agreement duly certified by the BLR may serve as a bar to certification elections. (Philippine Association of Free Labor Unions (PAFLU) v. Estrella, G.R. No. 45323, February 20, 1989, 170 SCRA 378, 382) It is noteworthy that the Bureau of Labor Relations duly certified the November 14, 1984 collective bargaining agreement. Hence, the contract-bar rule as embodied in Section 3, Rule V, Book V of the rules implementing the Labor Code is applicable. ||This rule simply provides that a petition for certification election or a motion for intervention can only be entertained within sixty days prior to the expiry date of an existing collective bargaining agreement. Otherwise put, the rule prohibits the filing of a petition for certification election during the existence of a collective bargaining agreement except within the freedom period, as it is called, when the said agreement is about to

27


Janz Hanna Ria N. Serrano expire. The purpose, obviously, is to ensure stability in the relationships of the workers and the management by preventing frequent modifications of any collective bargaining agreement earlier entered into by them in good faith and for the stipulated original period

iii. Filing Party Book V, Rule VIII, Sec. 1. supra Misrepresentation by Union Officers

DHL v. Buklod. False statements made by union officers before and during a certification election -- that the union is independent and not affiliated with a national federation -- are material facts likely to influence the election results. This principle finds application in the present case in which the majority of the employees clearly wanted an independent union to represent them. Thus, after the members learned of the misrepresentation, and after a majority of them disaffiliated themselves from the union and formed another one, a new certification election should be held to enable them to express their true will. Toyota Motors LU v. Toyota. if a labor organization’s application for registration is vitiated by falsification and serious irregularities, a labor organization should be denied recognition as a legitimate labor organization. And if a certificate of registration has been issued, the propriety of its registration could be assailed directly through cancellation of registration proceedings in accordance with Arts. 238 and 239 of the Labor Code, or indirectly, by challenging its petition for the issuance of an order for certification election.

iv. Form of Petition Book V, Rule VIII, Sec. 4. Supra National Mines v. Sec. of Labor. Granting that 36 signatures were falsified and that 13 was disowned, this leaves 92 undisputed signatures which is definitely more than 75 — i.e., 25% of the total number of company employees required by law to support a petition for certification election. The disclaimer of 13 employees by their respective signatures covers only their own personal participation and cannot in any way be extended to include the rest of those who did not question the same.

v. Substantial Support LC, 256 supra Book V, Rule VIII, Sec. 4(g) Book V, Rule VIII, Sec 14(e) Book V, Rule VIII, Sec. 14(f) 1997 IRR – Rule XI, Sec. 11, II(e) Port Workers v. DOLE. The certification election is the best method of determining the will of the workers on the crucial question of who shall represent them in their negotiations with the management for a collective bargaining agreement that will best protect and promote their interests. It is essential that there be no collusion against this objective between an unscrupulous management and a union covertly supporting it while professing its loyalty to labor, or at least that the hopes of labor be not frustrated because of its representation by a union that does not enjoy its approval and support. It is therefore sound policy that any doubt regarding the real representation of the workers be resolved in favor of the holding of the certification election. This is preferable to the suppression of the voice of the workers through the prissy observance of technical rules that will exalt procedure over substantial justice OTCLU v. Sec. of Labor. The support requirement is a mere technicality which should be employed in determining the true will of the workers 21 instead of frustrating the same.

vi. Effect of Members’ Retraction on Petition Eagle Ridge v. CA. We have in precedent cases said that the employees’ withdrawal from a labor union made before the filing of the petition for certification election is presumed voluntary, while withdrawal after the filing of such petition is considered to be involuntary and does not affect the same.

vii. Forced Intervention/Motion for Intervention Book V, Rule VIII, Sec. 7. supra Book V, Rule VIII, Sec. 8. supra PAFLU v. Calleja. The respondent Director did not abuse her discretion in issuing the contested order. It is crystal clear from the said provisions that the requisite written consent of at least 20% of the workers in the bargaining unit applies to petitioners for certification election only, and not to motions for intervention. Nowhere in the aforesaid legal provisions does it appear that a motion for intervention in a certification election must be accompanied by a similar written consent. Not even in the Implementing Rules of the Labor Code (see Rule V, Rules Implementing the Labor Code). Obviously, the percentage requirement pertains only to the petition for certification election, and nothing else.

b. Unorganized Establishment LC, 242. supra LC, 257. Petitions in Unorganized Establishments. - In any establishment where there is no certified bargaining agent, a certification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by any legitimate labor organization, including a national union or federation which has already issued a charter certificate to its 1ocal/chapter participating in the certification election or a local/chapter which has been issued a charter certificate by the national union or federation. In cases where the petition was filed by a national union or federation, it shall not be required to disclose the names of the local chapter’s officers and members. (As amended by Section 24, Republic Act No. 6715, March 21, 1989 and Section 11, Republic Act No. 9481 which lapsed into law on May 25, 2007 and became effective on June 14, 2007). Sugbuanon v. Laguesma. supra

2. The Employer as initiating Party/bystander Rule LC, 258. When an employer may file petition. – When requested to bargain collectively, an employer may petition the Bureau for an election. If there is no existing certified collective bargaining agreement in the unit, the Bureau shall, after hearing, order a certification election. All certification cases shall be decided within twenty (20) working days. The Bureau shall conduct a certification election within twenty (20) days in accordance with the rules and regulations prescribed by the Secretary of Labor. LC, 258-A. Employer as Bystander. - In all cases, whether the petition for certification election is filed by an employer or a legitimate labor organization, the employer shall not be considered a party thereto with a concomitant right to oppose a petition for certification election. The employer’s participation in such proceedings shall be limited to: (1) being notified or informed of petitions of such nature; and (2) submitting the list of employees during the pre-election conference should the Med-Arbiter act favorably on the petition. (As amended by Section 12, Republic Act No. 9481 which lapsed into law on May 25, 2007 and became effective on June 14, 2007). Book V, Rule VIII. Sec. 1, par. 3-4. supra Hercules v. Sec of Labor. Phil. Scouts v. Torres. Finally, except where the employer has to file a petition for certification election pursuant to Article 258 of the Labor Code because of a request to bargain collectively, it has nothing to do with a certification election which is the sole concern of the workers. Its role in a certification election has aptly been described in Trade Unions of the Philippines and Allied Services (TUPAS) v. Trajano, 6 as that of a mere by-stander. It has no legal standing in a certification election as it cannot oppose the petition or appeal the Med-Arbiter's orders related thereto. An employer that involves itself in a certification election lends suspicion to the fact that it wants to create a company union.

3. Responsible Agency LC, 226. supra LC, 232. Prohibition on certification election. - The Bureau shall not entertain any petition for certification election or any other action which may disturb the administration of duly registered existing collective bargaining agreements affecting the parties except under Articles 253, 253-A and 256 of this Code. (As amended by Section 15, Republic Act No. 6715, March 21, 1989).

28


Janz Hanna Ria N. Serrano LC, 256. supra LC, 257. supra LC, 258. supra LC, 259. Appeal from certification election orders. – Any party to an election may appeal the order or results of the election as determined by the Med-Arbiter directly to the Secretary of Labor and Employment on the ground that the rules and regulations or parts thereof established by the Secretary of Labor and Employment for the conduct of the election have been violated. Such appeal shall be decided within fifteen (15) calendar days. (As amended by Section 25, Republic Act No. 6715, March 21, 1989). Book V, Rule VIII, Sec. 13. supra Book V, Rule VIII, Sec. 14. supra Book V, Rule VIII, Sec. 15. supra

4. Requisite for Validity of Election/Failure of Election LC, 256. supra Book V, Rule I, Sec. 1(q). "Eligible Voter" refers to a voter belonging to the appropriate bargaining unit that is the subject of a petition for certification election. Book V, Rule IX, Sec. 17. supra Book V, Rule IX, Sec. 18. Supra Book V, Rule IX, Sec. 19. supra BENECO v. Calleja. A256 provides, among others, that to have a valid election, at least a majoprity of all eligible voters in the unit must have cast their votes. The labor union receiving the majority of the valid votes case shall be certified as the exclusive bargaining agent of all workers in the unit. a. Double Majority Rule

NUWHRAI v. SOLE. it is evident that the period of reckoning in determining who shall be included in the list of eligible voters is, in cases where a timely appeal has been filed from the Order of the Med-Arbiter, the date when the Order of the Secretary of Labor and Employment, whether affirming or denying the appeal, becomes final and executory. || It bears reiteration that the true importance of ascertaining the number of valid votes cast is for it to serve as basis for computing the required majority, and not just to determine which union won the elections. || A run-off election refers to an election between the labor unions receiving the two (2) highest number of votes in a certification or consent election with three (3) or more choices, where such a certified or consent election results in none of the three (3) or more choices receiving the majority of the valid votes cast; provided that the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast

5. Nature of Proceeding PWUP v. DOLE. supra

6. Certification Election – Process and Procedure – Book V, Rules VIII & IX a. Effect of Private Agreement

PLUM v. Noriel. Certification election is the fairest and most effective way of determining which labor organization can truly represent the working force. It is a fundamental postulate that the win of the maj• rity if given expression in an honest election with freedom on the part of the voters to make their choice, is controlling. 4 Protection to labor and freedom of peaceful assembly and association are guaranteed by the Constitution.

b. Posting Notice Book V, Rule I, Sec. 1(o). "Election Officer" refers to an officer of the Bureau or Labor Relations Division in the Regional Office authorized to conduct certification elections, election of union officers and other forms of elections and referenda in accordance with Rule XII, Sections 2-5 of these Rules. Book V, Rule IX, Sec. 6. supra Jisscor Independent Union v. Torres. There is no merit in the petitioner's contention that the non-posting of the notice of the certification election as prescribed by Section 1, Rule VI, Book V of the Onmibus Rules Implementing the labor Code misled and confused the workers regarding the mechanics of the election. The petitioner is estopped from raising that issue for it signed an agreement with the private respondent to waive the mandatory five (5) days posting of election notices. The doctrine of estoppel is based on grounds of public policy, fair dealing, good faith and justice, and its purpose is to forbid one to speak against his own act, representations, or commitments to the injury of one to whom they were directed and who reasonably relied thereon

c. Voters’ List Book V, Rule IX, Sec. 5. Book V, Rule I, Sec 1(q), supra R. Transport v. Laguesma. Devoid of merit is petitioner's contention that the employment status of the members of respondent CLOP who joined the strike must first be resolved before a certification election can be conducted. || the employees of petitioner who participated in the strike, legally remain as such, until either the motion to declare their employment status legally terminated or their complaint for illegal dismissal is resolved by the NLRC.

d. Dismissed employees Yokohama Tire Phil v. YEU. Section 2, Rule XII, the rule in force during the November 23, 2001 certification election clearly, unequivocally and unambiguously allows dismissed employees to vote during the certification election if the case they filed contesting their dismissal is still pending at the time of the election. || Here, the votes of employees with illegal dismissal cases were challenged by petitioner although their cases were still pending at the time of the certification election on November 23, 2001. These cases were filed on June 27, 2001 and the appeal of the Labor Arbiter’s February 28, 2003 Decision was resolved by the NLRC only on August 29, 2003. || Even the new rule has explicitly stated that without a final judgment declaring the legality of dismissal, dismissed employees are eligible or qualified voters.

e. Voting day/Venue Book V, Rule IX Sec. 2. supra Asian Design & Mfg. Corp. v. Calleja. Furthermore, anent complainant's contention that the certification election was conducted not on regular business day, the same is devoid of merit. The records further show that during the pre- election conference the contending parties agreed that the election should be conducted on May 21, 1986 winch was, on that time, a determined regular business day of the company. This was in accordance with Section 2, Rule VI Book V, of the Implementing Rules of the Labor Code

f. Conduct of Election Book V, Rule IX, Sec. 1. Book V, Rule IX, Sec. 15. Hercules v. SOLE.

g. Protest Period Book V, Rule IX Sec. 12 Book V, Rule IX Sec. 13. Book V, Rule I, Sec. 1(p). "Election Proceedings" refer to the period during a certification election, consent or run-off election and election of union officers, starting from the opening to the closing of the polls, including the counting, tabulation and consolidation of votes, but excluding the period for the final determination of the challenged votes and the canvass thereof. Samahan v. Laguesma. At the latest, petitioner's objection to the use of the SSS should have been raised during the elections and formalized in its election protest. We agree with private respondent MNMPP in its Opposition to SAMAHAN's election protest dated October 15, 1992 that under the Implementing Rules, grounds of protests not raised before the close of the proceedings and duly formalized within five (5) days after the close of the election proceedings are deemed waived

h. Appeal; Period LC, 259. supra

29


Janz Hanna Ria N. Serrano Book V, Rule VIII, Sec. 17. Book V, Rule VIII, Sec. 18. Book V, Rule VIII, Sec. 19. Book V, Rule VIII, Sec. 20. Book V, Rule VIII, Sec. 21. PFVI v. Torres.

i. Nullification of Election results Gelmart v. Noriel.

D. Certification of Designated Majority Union LC, 255. supra LC, 256. supra Book V, Rule I, Sec. 1 (t). "Exclusive Bargaining Representative" refers to a legitimate labor union duly recognized or certified as the sole and exclusive bargaining representative or agent of all the employees in a bargaining unit. Book V, Rule IX Sec. 16. Book V, Rule IX, Sec. 20 Manila Diamond Hotel v. MDHEU.

E. Bars to Certification Election LC, 232. Supra LC, 250. Procedure in collective bargaining. – The following procedures shall be observed in collective bargaining:

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

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

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

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

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

LC, 253, supra. LC, 253-A. Terms of a collective bargaining agreement. – Any Collective Bargaining Agreement that the parties may enter into shall, insofar as the representation aspect is concerned, be for a term of five (5) years. No petition questioning the majority status of the incumbent bargaining agent shall be entertained and no certification election shall be conducted by the Department of Labor and Employment outside of the sixty-day period immediately before the date of expiry of such five-year term of the Collective Bargaining Agreement. All other provisions of the Collective Bargaining Agreement shall be renegotiated not later than three (3) years after its execution. Any agreement on such other provisions of the Collective Bargaining Agreement entered into within six (6) months from the date of expiry of the term of such other provisions as fixed in such Collective Bargaining Agreement, shall retroact to the day immediately following such date. If any such agreement is entered into beyond six months, the parties shall agree on the duration of retroactivity thereof. In case of a deadlock in the renegotiation of the Collective Bargaining Agreement, the parties may exercise their rights under this Code. (As amended by Section 21, Republic Act No. 6715, March 21, 1989). LC, 256 supra Book V, Rule VIII, Sec. 3. Book V, Rule VIII, Sec. 14. 1. One Year Bar/Certification Year Rule

Book V, Rule VIII, Sec. 3(a) Book V, Rule VIII, Sec. 14(c) R. Transport v. Laguesma. Kaisahan v. Trajano.

2. Negotiation Bar Rule Book V, Rule VIII, Sec. 3(b). Book V, Rule VIII, Sec. 14(d)

3. Deadlock Bar Rule Book V, Rule VIII, Sec. 3(c) Book V, Rule VIII, Sec. 14(d) Divine Word University v. SOLE. SMC v. NLRC.

4. Contract Bar Rule LC, 232. LC, 253. LC, 253-A, 2nd sentence LC, 256 Book V, Rule VIII, Sec. 3(d) Book V, Rule VIII, Sec. 14(b) Book V, Rule VIII, Sec. 24. Colegio de San Juan de Letran v. Assoc. PERMEX v. SOLE.

F. Suspension of CE: Pre-judicial Question Dunlop v. Sec. Lingkod Manggagawa v. Rubberworld.

G. Opposition Protection Tech. v. SOLE.

H. Effect of Petition for Cancellation of Trade Union Registration Samahan ng Manggagawa sa Pacific Plastic v. Laguesma. APC v. BLR.

00 Labor Midterms

Documents

Transcript of 00 Labor Midterms