Labor 2 Finals Reviewer
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VII. COLLECTIVE BARGAINING: GENERAL CONCEPT PROCEDURE AND ISSUES A. General Concept 1. Policy Declaration Article. 211 A(a). It is a policy of the state: To promote and emphasize the primacy of free collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling labor or industrial disputes. Article 211 B To encourage a truly democratic method of regulating the relations between the employers and employees by means of agreements freely entered into through collective bargaining, no court or administrative agency or official shall have the power to set or fix wages, rates of pay, hours of work or other terms and conditions of employment, except as otherwise provided under this Code. Art. XIII Sec. 3 Constitution The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self- organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth. 2. Nature and Purpose Collective bargaining which is defined as negotiations towards a collective agreement, is one of the democratic frameworks under the New Labor Code, designed to stabilize the relation between labor and management and to create a climate of sound and stable industrial peace. It is a mutual responsibility of the employer and the Union and is characterized as a legal obligation. So much so that Article 249, par. (g) of the Labor Code makes it an unfair labor practice for an employer to refuse "to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work, and all other terms and conditions of employment including proposals for adjusting any grievance or question arising under such an agreement and executing a contract incorporating such agreement, if requested by either party. (Kiok Loy v. NLRC) Collective bargaining . . . normally takes the form of negotiations when major conditions of employment to be written into an agreement are under consideration and of grievance committee meetings and arbitration when questions arising in the administration of an agreement are at stake (Republic Savings Bank v. CIR) B. Bargainable Issues Article 252. Meaning of duty to bargain collectively. – The duty to bargain collectively means the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of: (1) Negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment, including proposals for adjusting any grievances or questions arising under such agreement. (2) And executing a contract incorporating such agreements if requested by either party BUT such duty does not compel any party to agree to a proposal or to make any concession. *Manila Fashions v. NLRC: As in all other contracts, the parties in a CBA may establish such stipulations, clauses, terms and conditions as they may deem convenient provided they are not contrary to law, morals, good customs, public order or public policy. Section 3, Art. VIII, of the CBA is a void provision because by agreeing to condone the implementation of the Wage Order the parties thereby contravened its mandate on wage increase of P12.00. It is only the Tripartite Wage Productivity Board of the DOLE that could approve exemption of an establishment from coverage of a Wage Order. *Union of Filpro Employees v. Nestle: Obviously, the purpose of collective bargaining is the reaching of an agreement resulting in a contract binding on the parties; but the failure to reach an agreement after negotiations have continued for a reasonable period does not establish a lack of good faith. The statutes invite and contemplate a collective bargaining contract, but they do not compel one. The duty to bargain does not include the obligation to reach an agreement. As we have said, there is no per se test of good faith in bargaining. Good faith or bad faith is an inference to be drawn from the facts. To some degree, the question of good faith may be a question of credibility.
Transcript of Labor 2 Finals Reviewer
VII. COLLECTIVE BARGAINING: GENERAL CONCEPT PROCEDURE AND ISSUES
A. General Concept
1. Policy Declaration
Article. 211 A(a). It is a policy of the state: To promote and emphasize the primacy of free collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling labor or industrial disputes.
Article 211 B To encourage a truly democratic method of regulating the relations between the employers and employees by means of agreements freely entered into through collective bargaining, no court or administrative agency or official shall have the power to set or fix wages, rates of pay, hours of work or other terms and conditions of employment, except as otherwise provided under this Code.
Art. XIII Sec. 3 Constitution The State shall afford full protection to labor, local and overseas, organized and unorganized,
and promote full employment and equality of employment
opportunities for all.
It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.
The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.
The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth.
2. Nature and Purpose
Collective bargaining which is defined as negotiations towards a collective agreement, is one of the democratic frameworks under the New Labor Code, designed to stabilize the relation between labor and management and to create a climate of sound and stable industrial peace. It is a mutual responsibility of the employer and the Union and is characterized as a legal obligation.
So much so that Article 249, par. (g) of the Labor Code makes it an unfair labor practice for an employer to refuse "to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work, and all other terms and conditions of employment including proposals for adjusting any grievance or question arising under such an agreement and executing a contract incorporating such agreement, if requested by either party. (Kiok Loy v. NLRC)
Collective bargaining . . . normally takes the form of negotiations when major conditions of employment to be written into an agreement are under consideration and of grievance committee meetings and arbitration when questions arising in the administration of an agreement are at stake (Republic Savings Bank v. CIR)
B. Bargainable Issues
Article 252. Meaning of duty to bargain collectively. – The duty to bargain collectively means the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of:
(1) Negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment, including proposals for adjusting any grievances or questions arising under such agreement. (2) And executing a contract incorporating such agreements if requested by either party
BUT such duty does not compel any party to agree to a proposal or
to make any concession.
*Manila Fashions v. NLRC: As in all other contracts, the parties in a CBA may establish such stipulations, clauses, terms and conditions as they may deem convenient provided they are not contrary to law, morals, good customs, public order or public policy. Section 3, Art. VIII, of the CBA is a void provision because by agreeing to condone the implementation of the Wage Order the parties thereby contravened its mandate on wage increase of P12.00. It is only the Tripartite Wage Productivity Board of the DOLE that could approve exemption of an establishment from coverage of a Wage Order.
*Union of Filpro Employees v. Nestle: Obviously, the purpose of collective bargaining is the reaching of an agreement resulting in a contract binding on the parties; but the failure to reach an agreement after negotiations have continued for a reasonable period does not establish a lack of good faith. The statutes invite and contemplate a collective bargaining contract, but they do not compel one. The duty to bargain does not include the obligation to reach an agreement.
As we have said, there is no per se test of good faith in bargaining. Good faith or bad faith is an inference to be drawn from the facts. To some degree, the question of good faith may be a question of credibility.
While the law makes it an obligation for the employer and the employees to bargain collectively with each other, such compulsion does not include the commitment to precipitately accept or agree to the proposals of the other. All it contemplates is that both parties should approach the negotiation with an open mind and make reasonable effort to reach a common ground of agreement.
An employer’s steadfast insistence to exclude a particular substantive provision is no different from a bargaining representative’s perseverance to include one that they deem of absolute necessity. Indeed, an adamant insistence on a bargaining position to the point where the negotiations reach an impasse does not establish bad faith. It is but natural that at negotiations, management and labor adopt positions or make demands and offer proposals and counter-proposals. On account of the importance of the economic issue proposed by UFE-DFA-KMU, Nestle could have refused to bargain with the former – but it did not. And the management’s firm stand against the issue of the Retirement Plan did not mean that it was bargaining in bad faith. It had a right to insist on its position to the point of stalemate.
Note: You cannot unilaterally diminish what has been validly agreed upon before. It’s a bargainable issue.
*Samahang Manggagawa sa Top Form v. NLRC: The question as to what are mandatory and what are merely permissive subjects of collective bargaining is of significance on the right of a party to insist on his position to the point of stalemate.
A party may refuse to enter into a collective bargaining contract UNLESS it includes a desired provision as to a matter which is a mandatory subject of collective bargaining; but a refusal to contract unless the agreement covers a matter which is not a mandatory subject is in substance a refusal to bargain about matters which are mandatory subjects of collective bargaining, and it is no answer to the charge of refusal to bargain in good faith that the insistence on the disputed clause was not the sole cause of the failure to agree or that agreement was not reached with respect to other disputed
clauses.
Note: Question of Minimum wage is NOT negotiable. Retirement plan is negotiable
1. CBA Interpretation
CBA provisions should be "construed liberally rather than narrowly and technically, and the courts must place a practical and realistic construction upon it, giving due consideration to the context in which it is negotiated and purpose which it is intended to serve." This is founded on the dictum that a CBA is not an ordinary contract but one impressed with public interest. It goes without saying, however, that only provisions embodied in the CBA should be so interpreted and complied with. Where a proposal raised by a contracting party does not find print in the CBA, it is not a part thereof and the proponent has no claim whatsoever to its implementation. (Samahan ng Manggagawa sa Top Form Manufacturing v. NLRC)
C. Bargaining Procedure
1. Private Procedure
Article 251. In the absence of an agreement or other voluntary arrangement providing for a more expeditious manner of collective bargaining, it shall be the duty of employer and the representatives of the employees to bargain collectively in accordance with the provisions of this Code
2. Labor Code Procedure
Article 250. 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.
Note: The notice must be in writing. The EEs should attach their demands. The reply must be a counterproposal, if not a counterproposal, bad faith.
Note 2: NCMB is the board in (c). It is NOT a quasi-judicial body but it has power to issue subpoenas.
Article. 233. Information and statements made at conciliation proceedings shall be treated as privileged communication and shall not be used as evidence in the Commission. Conciliators and similar officials shall not testify in any court or body regarding any matters taken up at conciliation proceedings conducted by them.
Article. 260. Grievance machinery and voluntary arbitration. - The parties to a Collective Bargaining Agreement shall include therein provisions that will ensure the mutual observance of its terms and conditions. They shall establish a machinery for the adjustment and resolution of grievances arising from the interpretation or implementation of their Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies.
All grievances submitted to the grievance machinery which are not settled within seven (7) calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the Collective Bargaining Agreement.
For this purpose, parties to a Collective Bargaining Agreement shall name and designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators, or include in the agreement a procedure for the selection of such Voluntary Arbitrator or panel of Voluntary Arbitrators, preferably from the listing of qualified Voluntary Arbitrators duly accredited by the Board. In case the parties fail to select a Voluntary Arbitrator or panel of Voluntary Arbitrators, the Board shall designate the Voluntary Arbitrator or panel of Voluntary Arbitrators, as may be necessary, pursuant to the selection procedure agreed upon in the Collective Bargaining Agreement, which shall act with the same force and effect as if the Arbitrator or panel of Arbitrators has been selected by the parties as described above.
Caltex Refinery v. Brillantes: Although the union has every right to represent its members in the negotiation regarding the terms and conditions of their employment, it cannot negate their wishes on matters which are purely personal and individual to them. In this case, the forty employees freely opted to be covered by the Old Plan; their decision should be respected. The company gave them every opportunity to choose, and they voluntarily exercised their choice. The union cannot pretend to know better; it cannot impose its will on them.
3. Conciliation/Preventive Mediation
Art. 233. Art. 250 (c)(d)(e) supra
EO 251 Sec. 4 A National Conciliation and Mediation Board, herein referred to as the "Board", is hereby created and which shall absorb the conciliation mediation and voluntary arbitration functions of the Bureau of Labor of Relations in accordance with Section 29 (c) hereof
Book V Rule XXII Sec. 1 The board may, upon request of either of both parties or upon its own initiative, provide conciliation-mediation services to labor disputes other than notices of strikes or lockouts. Conciliation cases which are not subjects of notices of strike or lockout shall be docketed as preventive mediation cases.
Book V Rule XXII Sec. 9 Upon receipt of the notice, the regional branch of the Board shall exert all efforts at mediation and conciliation to enable the parties to settle the dispute amicably. The
regional branch of the Board may, upon agreement of the parties, treat a notice as a preventive mediation case. It shall also encourage the parties to submit the dispute to voluntary arbitration.
During the proceedings, the parties shall not do any act which may disrupt or impede the early settlement of the dispute. They are obliged, as part of their duty to bargain collectively in good faith and to participate fully and promptly in the conciliation meetings called by the regional branch of the Board. A notice, upon agreement of the parties, may be referred to alternative modes of dispute resolution, including voluntary arbitration.
4. Duty to Bargain
Art. 250. Art. 251. Art. 252. supra
Article 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.
Article 242. A legitimate labor organization shall have the right:
(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.
Article 239-A. Voluntary cancellation of registration. - The registration of a legitimate labor organization may be cancelled by the organization itself: Provided, That at least two-thirds of its general membership votes, in a meeting duly called for that purpose to dissolve the organization: Provided, further, That an application to cancel registration is thereafter submitted by the board of the organization, attested to by the president thereof.
Article 248(g) It shall be unlawful for an employer to commit any of the following unfair labor practice:
To violate the duty to bargain collectively as prescribed by this Code
Article 249(c). Unfair labor practices of labor organizations. - It shall be unfair labor practice for a labor organization, its officers, agents or representatives: To violate the duty, or refuse to bargain collectively with the employer, provided it is the representative of the employees.
*Mapua v.CA: Until a new CBA is executed by and between the parties, they are duty-bound to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement. The law does not provide for any exception nor qualification on which economic provisions of the existing agreement are to retain its force and effect.
D. The Collective Bargaining Agreement
1. Definition/Contents
Book V, Rule I, Sec. 1 (j) "Collective Bargaining Agreement" or "CBA" refers to the contract between a legitimate labor union and the employer concerning wages, hours of work, and all other terms and conditions of employment in a bargaining unit.
Art. 260 supra
Effect of Substandard Contract: Prohibited to enter into a substandard contract (UP Bar)
*Lepanto v. Lepanto Employees: Generally, a bonus is not a demandable and enforceable obligation. For a bonus to be enforceable, it must have been promised by the employer and expressly agreed upon by the parties.Given that the bonus in this case is integrated in the CBA, the same partakes the nature of a demandable obligation.
2. Registration
Article. 231(1). The Bureau shall keep a registry of legitimate labor organizations. The Bureau shall also maintain a file of all collective bargaining agreements and other related agreements and records of settlement of labor disputes and copies of orders and decisions of voluntary arbitrators.
The file shall be open and accessible to interested parties under conditions prescribed by the Secretary of Labor and Employment, provided that no specific information submitted in confidence shall be disclosed UNLESS (1) authorized by the Secretary, or (2) when it is at issue in any judicial litigation, or when public interest or national security so requires.
Art. 231(2): Within thirty (30) days from the execution of a Collective Bargaining Agreement, the parties shall submit copies of the same directly to the Bureau or the Regional Offices of the Department of Labor and Employment for registration, accompanied with verified proofs of its posting in two conspicuous places in the place of work and ratification by the majority of all the workers in the bargaining unit.
The Bureau or Regional Offices shall act upon the application for registration of such Collective Bargaining Agreement within five (5) calendar days from receipt thereof. The Regional Offices shall furnish the Bureau with a copy of the Collective Bargaining Agreement within five (5) days from its submission.
Art. 231(3 and 4)The Bureau or Regional Office shall assess the employer for every Collective Bargaining Agreement a registration fee of NOT LESS than one thousand pesos (P1,000.00) or in any other amount as may be deemed appropriate and necessary by the Secretary of Labor and Employment for the effective and efficient administration of the Voluntary Arbitration Program. Any amount collected under this provision shall accrue to the Special Voluntary Arbitration Fund.
The Bureau shall also maintain a file and shall undertake or assist in the publication of all final decisions, orders and awards of the Secretary of Labor and Employment, Regional Directors and the Commission
Book V, Rule XVII, Section 1. Within thirty (30) days from execution of a collective bargaining agreement, the parties thereto shall submit two (2) duly signed copies of the agreement to the Regional Office which issued the certificate of registration/certificate of creation of chartered local of the labor unionparty to the agreement. Where the certificate of creation of the concerned chartered local was issued by the Bureau, the agreement shall be filed with the Regional Office which has jurisdiction over the place
where it principally operates. Multi-employer collective bargaining agreements shall be filed with the Bureau.
Book V, Rule XVIISection 2. The application for CBA registration shall be accompanied by the original and two (2) duplicate copies of the following documents which must be certified under oath by the representative(s) of the employer(s) and labor union(s) concerned:
(a) the collective bargaining agreement;
(b) a statement that the collective bargaining agreement was posted in at least two (2) conspicuous
places in the establishment or establishments concerned for at least five (5) days before its ratification;and
(c) a statement that the collective bargaining agreement was ratified by the majority of the employees in the bargaining unit of the employer or employers concerned.
No other document shall be required in the registration of collective bargaining agreements.
Book V, Rule XVII Sec 3. The certificate of registration of collective bargaining agreement shall be issued by the Regional Office upon payment of the prescribed registration fee.
3. Beneficiaries
Article 255. 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.
*New Pacific Timber v. NLRC: When a CBA is entered into by the union representing the EEs and the ER, even the non member employees are entitled to the benefits of the contract. To accord benefits only to the union without any valid reasons would constitute undue discrimination against non-members.
4. Minutes of Negotiations
Hence, petitioner union's contention that the Minutes of the collective bargaining negotiation meeting forms part of the entire agreement is pointless. The Minutes reflects the proceedings and discussions undertaken in the process of bargaining for worker benefits in the same way that the minutes of court proceedings show what transpired therein. At the negotiations, it is but natural for both management and labor to adopt positions or make demands and offer proposals and counter-proposals. However, nothing is considered final until the parties have reached an agreement. If indeed private respondent promised to continue with the practice of granting across-the-board salary increases ordered by the government, such promise could only be demandable in law if incorporated in the CBA. (Samahan ng Manggagawa sa Top Form v. NLRC)
5. Interpretation, Administration and Enforcement
*Norkis v. Norkis Trading: Stipulations in a contract must be read together, not in isolation from one another. When the terms of its clauses are clear and leave no room for doubt as to the intention of the contracting parties, it would not be necessary to interpret those terms, whose literal meanings should prevail.
a. Nature
*Pantranco v. NLRC: Terms and conditions of a CBA constitute the law between the parties.
*DOLE v. Pawis ng Makabayan: The exercise of management prerogative is not unlimited. It is subject to the limitations found in law, a collective bargaining agreement or the general principles of fair play and justice This situation constitutes one of the limitations. The CBA is the norm of conduct between petitioner and private respondent and compliance therewith is mandated by the express policy of the law
b. Grievance Procedure
Art. 260 supra
*Master Iron v. NLRC: Grievance procedure is part of the continuous process of collective bargaining. It is intended to promote a friendly dialogue between labor and management as a means for maintaining industrial peace.
*Caltex v. Brillantes: No particular setup for a grievance machinery is required by law.
*USAEU-FFW v. CA: Main purpose of management and labor in adopting a procedure in the settlement of their disputes is to prevent a strike or lockout. In a case where management refused to submit names in connection with the formation of the grievance committee, the Court said that labor still had no right to declare a strike. Why? Its duty is to exhaust all available means within its reach before resorting to force.
c. Contract Infirmity
*Associated Labor Union v. Calleja: Regardless of whether the 181 ees were part of the ones who previously ratified the CBA, such contract will not promote industrial stability thus exempt from the contract bar rule. Excepted from the contract-bar rule are contracts where the identity of the representative is in doubt. In such case, stability must yield to the employees' freedom of choice since it is the latter that will promote industrial peace.
d. Contract Ambiguity
*Holy Cross v. Holy Cross Union: In any event, the construction of any ambiguity in the CBA, such as which course would be relevant to Legaspi’s job, and whether such course comprises ‘higher studies’ should be made in favor of the employee, Legaspi, in consonance with the rule that labor laws and agreements should be construed in favor of the working man.
e. Contract Duration and Renewal
Article 253. 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.
Article 253-APolitical Aspect: 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.
Economic Aspect: 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.
*Meralco v. Quisimbing: In general, a CBA negotiated within six months after the expiration of the existing CBA retroacts to the day immediately following such date and if agreed thereafter, the effectivity depends on the agreement of the parties.
On the other hand, the law is silent as to the retroactivity of a CBA arbitral award or that granted not by virtue of the mutual agreement of the parties but by intervention of the government.
Despite the silence of the law, the Court rules herein that CBA arbitral awards granted after six months from the expiration of the last CBA shall retroact to such time agreed upon by both employer and the employees or their union. Absent such an agreement as to retroactivity, the award shall retroact to the first day after the six-month period following the expiration of the last day of the CBA should there be one. In the absence of a CBA, the Secretary's determination of the date of retroactivity as part of his discretionary powers over arbitral awards shall control.
*Rivera v. Laguesma: Nothing in Art. 253-A prohibits the parties from waiving or suspending the mandatory timetables and agreeing on the remedies to enforce the same.
In the instant case, it was PALEA, as the exclusive bargaining agent of PALs ground employees, that voluntarily entered into the CBA with PAL. It was also PALEA that voluntarily opted for the 10-year suspension of the CBA. Either case was the unions exercise of its right to collective bargaining. The right to free collective bargaining, after all, includes the right to suspend it.
The Agreement doesn’t violate the five-year representation limit mandated by Article 253-A. Under said article, the representation limit for the exclusive bargaining agent applies only when there is an extant CBA in full force and effect. In the instant case, the parties agreed to suspend the CBA and put in abeyance the limit on the representation period
*FVC Labor Union v. Samahan ng Nagkakaisang Maggagawa sa FBC: The original five-year term of the CBA which, by law, is also the effective period of the union’s exclusive bargaining representation status. While the parties may agree to extend the CBA’s original five-year term together with all other CBA provisions, any such amendment or term in excess of five years will not carry with it a change in the union’s exclusive collective bargaining status. By express provision of the above-quoted Article 253-A, the exclusive bargaining status cannot go beyond five years and the representation status is a legal matter not for the
workplace parties to agree upon.
i. Automatic Renewal: the last sentence of Article 253 which provides for automatic renewal pertains only to the economic provisions of the CBA, and does not include representational aspect of the CBA. An existing CBA cannot constitute a bar to a filing of a petition for certification election. When there is a representational issue, the status quo provision in so far as the need to await the creation of a new agreement will not apply (PICOP v, Taneca)
f. CBA and Third Party Liability
*Associated Labor v. NLRC: the rule state was that unless expressly assumed, labor contracts such as employment contracts and CBAs are not enforceable against a transferee of an enterprise, the contracts being in personam. There is no law requiring a bona fide purchaser of assets of an on-going concern to absorb in its employ the employees of the latter.
g. CBA and Disaffiliation
*Elisco v. Noriel: To grant to the former mother union (NAFLU) the authority to administer and enforce their collective bargaining agreement without presumably any members in the bargaining unit is quite absurd" but fell unto the grave error of holding that "when the employees disaffiliated from the mother union and formed themselves into a new union, their status as employees was also terminated."
h. Jurisdiction
1. Jurisdiction of Voluntary Arbitrators
Art. 261. 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.
Art. 262. 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.
Art. 217(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.
VIII. UNFAIR LABOR PRACTICE
A. In General
1. Definition and General Concept
Art. 212(k) "Unfair labor practice" means any unfair labor practice as expressly defined by the Code.
Article 246. 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.
Article 247. Unfair labor practices:(1) violate the constitutional right of workers and employees to self-organization, (2) 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, (3) disrupt industrial peace and, (4)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.
Note: Par.5 Mam Daway says it’s a very tedious process.
ULP vis avis Management Prerogative; Exception:
Art. 263 (g) When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return-to-work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary of Laborand Employment or the Commission may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same.
In line with the national concern for and the highest respect accorded to the right of patients to life and health, strikes and lockouts in hospitals, clinics and similar medical institutions shall, to every extent possible, be avoided, and all serious efforts, not only by labor and management but government as well, be exhausted to substantially minimize, if not prevent, their adverse effects on such life and health, through the exercise, however legitimate, by labor of its right to strike and by management to lockout. In labor disputes adversely affecting the continued operation of such hospitals, clinics or medical institutions, it shall be the duty of the striking union or locking-out employer to provide and maintain an effective skeletal workforce of medical and other health personnel, whose movement and services shall be unhampered and unrestricted, as are necessary to insure the proper and adequate protection of the life and health of its patients, most especially emergency cases, for the duration of the strike or lockout. In such cases, therefore, the Secretary of Labor and Employment may immediately assume, within twenty four (24) hours from knowledge of the occurrence of such a strike or lockout, jurisdiction over the same or certify it to the Commission for compulsory arbitration. For this purpose, the contending parties are strictly enjoined to comply with such orders, prohibitions and/or injunctions as are issued by the Secretary of Labor and Employment or the Commission, under pain of immediate disciplinary action, including dismissal or loss of employment status or payment by the locking-out employer of backwages, damages and other affirmative relief, even criminal prosecution against either or both of them.
The foregoing notwithstanding, the President of the Philippines shall not be precluded from determining the industries that, in his opinion, are indispensable to the national interest, and from intervening at any time and assuming jurisdiction over any such labor dispute in order to settle or terminate the same.
*Philcom v. Philcom: Unfair Labor practice refers to acts that violate the workers right to organize. The prohibited acts are related to the workers right to self-organization and to the observance of a CBA. Without that element, the acts, no matter how unfair are not ULP. Exception is 248(f) [to dismiss, discharge or otherwise
prejudice or discriminate against an employee for having given or being about to give testimony under this code]
2. Requisites
a. Employee-Employer Relationship
*Sterling v. SOL: Respondent Sol was not connected with any labor organization, nor has she ever attempted to join a labor organization, or to assist, or contribute to a labor organization. The company cannot, therefore, be considered as having committed an unfair labor practice.
*American v. Clave: ULP may be committed only within the context of an EE-ER relationship.
Note: Is this totally absolute? NO. Art 246 says ANY PERSON. Even representatives and agents of ER.
b. Act must be specifically defined in the law
Art. 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.
Article 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.
3. Burden of Proof
It is the union, who has the burden of proof to present substantial evidence to support its allegations of unfair labor practices committed by management (Schering Employees Labor Union v. Schering Plough Corp)
4. Interpretation
5. Inter-relations of ULP Acts
*Republic Savings v. CIR: Nonetheless, concurrence with the decision arrived at by the Court is called for in view of their mass dismissal. Under the circumstances, the supervisors union, the Republic Savings Bank employees union, the Republic Savings Bank security guards union, and the Republic Savings Bank supervisors union were left leaderless. For collective bargaining to be meaningful, there must be two parties, one representing management and the other representing the union. Nor could management select who would represent the latter or with whom to deal, otherwise in effect there would be only one party. Obviously there would then be no bargaining. 1awphîl.nèt It is my view therefore that the dismissal amounted to "interference, restraint or coercion" as
prohibited in the Industrial Peace Act.
B. Acts Violative of Right to Self Organization
1. Interference Restrain and Coercion
Article 248 (a) It shall be unlawful for an employer to commit any of the following unfair labor practice:
To interfere with, restrain or coerce employees in the exercise of their right to self-organization
Article 249 (a). Unfair labor practices of labor organizations. - It shall be unfair labor practice for a labor organization, its officers, agents or representatives:
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
Note: The difference between 248 and 249. “Interfere” is NOT included in Art. 249 because any act of a labor organization amounts to interference to a right to self-organization.
These are general grants of protection. All other cases of ULP enumerated under the said provisions are derivatives of Art. 248 and 249 (a)
*Hacienda Fatima v. National Federation of Sugarcane Workers: Respondents’ refusal to bargain, to their acts of economic inducements resulting in the promotion of those who withdrew from the union, the use of armed guards to prevent the organizers to come in, and the dismissal of union officials and members, one cannot but conclude that respondents did not want a union in their hacienda—a clear interference in the right of the workers to self-organization
*GMC v. CA: GMC presented these letters to prove that the union no longer enjoyed the support of the workers. The fact that the resignations of the union members occurred during the pendency of the case before the labor arbiter shows GMCs desperate attempts to cast doubt on the legitimate status of the union. We agree with the CA’s conclusion that the ill-timed letters of resignation from the union members indicate that GMC had interfered with the right of its employees to self-organization.
a. Interrogation
*Scoty’s Department Store v. Micaller: the industrial court has made a careful analysis of the evidence and has found the petitioners have really subjected complaint and her co-employees to a series of questioning regarding their membership in the union or their union activities which in contemplation of law are deemed acts constituting unfair labor practice
*Phil Steam v. Phil Marine Officers: Nonetheless, any employer who engages in interrogation does so with notice that he risks a finding of unfair labor practice if the circumstances are such that his interrogation restrains or interferes with employees in the exercise of their rights to self-organization.
Subjection by the company of its employees to a series of questioning regarding their membership in the union or their union activities, in such a way as to hamper the
exercise of free choice on their part, constitutes unfair labor practice.
b. Speech, Espionage, Economic Coercion
*Insular Life Assurance v. Insular Life Assurance Co: The letter-sending is ULP. It is ULP for an employer operating under a CBA to negotiate with his employees individually. That constitutes interference because the company is still under obligation to bargain with the union as the bargaining representative.
Moreover, since the letter contains promises of benefits in order to entice them to return to work, it is not protected by the free speech provisions of the Constitution. The free speech protection under the Constitution is inapplicable where the expression of opinion by the employer or his agent contains a promise of benefit, or threats or reprisal.
The ULP is committed whether espionage is carried on by a professional labor spy or detective, by officials or supervisory employees of the ER, or by fellow employees acting at the requires or direction of the employer or ex-employee.
c. Concerted Activities
*PBM v. PBM Co: The respondent company is the one guilty of unfair labor practice. Because the refusal on the part of the respondent firm to permit all its employees and workers to join the mass demonstration against alleged police abuses and the subsequent separation of the eight (8) petitioners from the service constituted an unconstitutional restraint on the freedom of expression, freedom of assembly and freedom petition for redress of grievances
2. Non-Union Membership or Withdrawal from Membership as a condition for Employment (Yellow-Dog Contract)
Article 248 (b). It shall be unlawful for an employer to commit any of the following unfair labor practice:
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
Typical Yellow dog contract: (1) A representation by the EE that he is NOT a member of a labor organization (2) A promise by the employee that he will not join a union (3) A promise by the EE that upon joining a labor organization, he will quit employment.
*Note: Even before EE-ER relationship. He is still an applicant.
3. Contracting Out to Discourage Unionism
Article 248. (c) To contract out services or functions being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their rights to self-organization;
4. Company Domination of Union
Article 248 (d) To initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization, including the giving of financial or other support to it or its organizers or supporters;
Article. 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.
5. Discrimination to encourage/discourage unionism
a. Discriminatory Discharge
b. Valid Discrimination: Union Security Clause:
"Union security": a generic term, which is applied to and comprehends "closed shop," "union shop," "maintenance of membership," or any other form of agreement which imposes upon employees the obligation to acquire or retain union membership as a condition affecting employment.
Its purpose is to promote unionism to enable workers to negotiate with management on an even level playing field and with more persuasiveness than if they were individually and separately bargain with the employer.
Note that substantive and procedural due process should still be followed notwithstanding this provision.
i. Closed ShopAn enterprise in which, by agreement between the employer and his employees or their representatives, no person may be employed in any or certain agreed departments of the enterprise unless he or she is, becomes, and, for the duration of the agreement, remains a member in good standing of a union entirely comprised of or of which the employees in interest are a part of
ii. Union ShopWhen all new regular employees are required to join the union within a certain period as a condition for their continued employment
iii. Maintenance of MembershipEmployees, who are union members as of the effective date of the agreement, or who thereafter become members, must maintain union membership as a condition for continued employment until they are promoted or transferred out of the bargaining unit or the agreement is terminated (General Milling v. Casio)
*GMC v. Casio: In terminating the employment of an employee by enforcing the union security clause, the employer needs only to determine and prove that: (1) the union security clause is applicable;(2) the union is requesting for the enforcement of the union security provision in the CBA; an(3) there is sufficient evidence to support the decision of the union to expel the employee from the union.
These requisites constitute just cause for terminating an employee based on the union security provision of the CBA
Note: Can the ER alone enforce this clause? NO. It must be with the recommendation of the union.
c. Collection of Agency fees
Art. 248(e) GENERAL RULE: It shall be ULP 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.
EXCEPTION: BUT 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,
EXCPETION To EXCEPTION: 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
*Del Pilar v. Del Pilar Union: Article 248(e) makes it explicit that Article 241, paragraph (o) requiring written authorization is inapplicable to non-union members, especially in this case where the non-union employees receive several benefits under the CBA.
The employee's acceptance of benefits resulting from a collective bargaining agreement justifies the deduction of agency fees from his pay and the union's entitlement thereto. In this aspect, the legal basis of the union's right to agency fees is neither contractual nor statutory, but quasi-contractual, deriving from the established principle that non-union employees may not unjustly enrich themselves by benefiting from employment conditions negotiated by the bargaining union.
6. Retaliation Testimony Against Employer/Indirect Discrimination
Art. 248(f) To dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code
7. Illegal Exaction -- Featherbedding
Art. 249(d) To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other things of value, in the nature of an exaction, for services which are not performed or not to be performed, including the demand for fee for union negotiations
8. Management Prerogative and ULP
San Miguel v. Bersamira: We recognize the proprietary right of SanMig to exercise an inherent management prerogative and its best business judgment to determine whether it should contract out the performance of some of its work to independent contractors. However, the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law (Section 3, Article XIII, 1987 Constitution) equally call for recognition and protection. Those contending interests must be placed in proper perspective and equilibrium.
C. Acts Violative of Right to Collective Bargaining
1. Violation of Duty to Bargain
Art 248(g) It shall be unlawful for an employer to commit any of the following unfair labor practice:
To violate the duty to bargain collectively as prescribed by this Code.
Art. 249(c) It shall be unfair labor practice for a labor organization,
its officers, agents or representatives:
To violate the duty, or refuse to bargain collectively with the employer, provided it is the representative of the employees
Article 251. Duty to bargain collectively in the absence of collective bargaining agreements. – In the absence of an agreement or other voluntary arrangement providing for a more expeditious manner of collective bargaining, it shall be the duty of employer and the representatives of the employees to bargain collectively in accordance with the provisions of this Code.
Article 252. Meaning of duty to bargain collectively. – The duty to bargain collectively means the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreements if requested by either party but such duty does not compel any party to agree to a proposal or to make any concession.
Article 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.
Note: Tie this up with Art. 261. It must be gross in character, malicious violations of the economic provisions. Violation of 250-253 may constitute ULP. If it is NOT malicious, then go to the grievance procedure.
*Union of Filipino EEs v. Nestle: For a charge of unfair labor practice to prosper, it must be shown that Nestlé was motivated by ill will, "bad faith, or fraud, or was oppressive to labor, or done in a manner contrary to morals, good customs, or public policy, and, of course, that social humiliation, wounded feelings, or grave anxiety resulted x x x"27 in disclaiming unilateral grants as proper subjects in their collective bargaining negotiations. While the law makes it an obligation for the employer and the employees to bargain collectively with each other, such compulsion does not include the commitment to precipitately accept or agree to the proposals of the other. All it contemplates is that both parties should approach the negotiation with an open mind and make reasonable effort to reach a common ground of agreement
2. Negotiation or Attorney Fees
Article 248 (h) It shall be unlawful for an employer to commit any of the following unfair labor practice:
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
Article 249 (e). It shall be unfair labor practice for a labor organization, its officers, agents or representatives:
To ask for or accept negotiation or attorney’s fees from employers as part of the settlement of any issue in collective bargaining or any other dispute
3. Gross Violation of Collective Bargaining Agreement
Article 248 (i) It shall be unlawful for an employer to commit any of the following unfair labor practice:
To violate a collective bargaining agreement.
Article 249 (f) It shall be unfair labor practice for a labor organization, its officers, agents or representatives:
To violate a collective bargaining agreement.
Article. 261. 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
*Arellano v. CA: To constitute ULP, however, violations of the CBA must be gross. Gross violation of the CBA, under Article 261 of the Labor Code, means flagrant and/or malicious refusal to comply with the economic provisions thereof. Evidently, the University can not be faulted for ULP as it in good faith merely heeded the above-said request of Union members.
D. Motive, Conduct and Proof
1. Totality of Evidence
It means that expressions of opinion by an employer through innocent in themselves may be held to be ULP because of the circumstances under which they were uttered, the history of the particular ERs labor relations or anti-union bias or because of their connection with an established collateral plan of coercion and interference (Insular Life Assurance v. Insular Life)
2. Employer Motive and Proof
Act of ER in provoking union officers into a fight designed to provide a lawful cause for dismissal are deemed ULP (Visayan Bicycle v. NLRC)
E. Enforcement Remedies and Sanctions
1. Parties against whom ULP Committed
Art. 212(e) "Employer" includes any person acting in the interest of an employer, directly or indirectly. The term shall not include anylabor organization or any of its officers or agents except when acting as employer.
Art 212(f) "Employee" includes any person in the employ of an employer. The term shall not be limited to the employees of a particular employer, unless the Code so explicitly states. It shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any
unfair labor practice if he has not obtained any other substantially equivalent and regular employment.
Art 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.
Art. 248 and 249 supra
2. Parties Liable for Acts
a. Employer
Art. 248 last par.The provisions of the preceding paragraph notwithstanding, only the officers and agents of corporations, associations or partnerships who have actually participated in, authorized or ratified unfair labor practices shall be held criminally liable
Art. 288-290 Just take note ULP prescribes 1 year.
b. Labor Organization
Art. 249 last par. The provisions of the preceding paragraph notwithstanding, only the officers, members of governing boards, representatives or agents or members of labor associations or organizations who have actually participated in, authorized or ratified unfair labor practices shall be held criminally liable.
3. Prosecution and Prescriptive Period
a. Civil Aspect
Art. 247 (Par 2-4) Consequently, unfair labor practices are not only violations of the civil rights of both labor and management but are also criminal offenses against the State which shall be subject to prosecution and punishment as herein provided.
Subject to the exercise by the President or by the Secretary of Labor and Employment of the powers vested in them by Articles 263 and 264 of this Code, the civil aspects of all cases involving unfair labor practices, which may include claims for actual, moral, exemplary and other forms of damages, attorney’s fees and other affirmative relief, shall be under the jurisdiction of the Labor Arbiters. The Labor Arbiters shall give utmost priority to the hearing and resolution of all cases involving unfair labor practices. They shall resolve such cases within thirty (30) calendar days from the time they are submitted for decision.
Recovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code
b. Criminal Aspect
Before Batas Blg. 7029 was enacted, ULP were considered admin offenses, and have been held akin to tort, wherein damages were payable.
Art. 247(last par.) No criminal prosecution under this Title may be instituted without a final judgment finding that an unfair labor practice was committed, having been first obtained in the preceding paragraph. During the pendency
of such administrative proceeding, the running of the period of prescription of the criminal offense herein penalized shall be considered interrupted: Provided, however, that the final judgment in the administrative proceedings shall not be binding in the criminal case nor be considered as evidence of guilt but merely as proof of compliance of the requirements therein set forth.
4. Compromise
In any event, we have held that unfair labor practice cases are not, in view of the public interest involved, subject to compromises. Furthermore, these alleged waivers do not appear to have been presented in the first instance. They cannot be introduced for the first time on appeal. (CCLC Gochangco v. NLRC)
5. Remedies and Sanctions
a. Civil Remedies
Art. 247(2-4)
b. Penal Remedies
Art. 247 last par. 288-290
IX. UNION CONCERTED ACTIVITIES
A. Basis of Right to Engage in Concerted Activities
1. Constitution
ARTICLE XIII Section 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.
2. Statutory
Article. 211. A. It is the policy of the State: 211(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; 211(b) To promote free trade unionism as an instrument for the enhancement of democracy and the promotion of social justice and development;
211(c) To foster the free and voluntary organization of a strong and united labor movement;
Article. 263. (a) It is the policy of the State to encourage free trade unionism and free collective bargaining.
263(b) Workers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection. The right of legitimate labor organizations to strike and picket and of employers to lockout, consistent with the national interest, shall continue to be recognized and respected. However, no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intra-union disputes.
Note: Constitution In accordance with law. Labor Code Consistent with National Interest.
3. Limitations
The right to strike is one of the rights recognized and guaranteed by the Constitution as an instrument of labor for its protection against exploitation by management. By virtue of this right, the workers are able to press their demands for better terms of employment with more energy and persuasiveness, poising the threat to strike as their reaction to the employer's intransigence. The strike is indeed a powerful weapon of the working class. But precisely because of this, it must be handled carefully, like a sensitive explosive, lest it blow up in the workers' own hands. Thus, it must be declared only after the most thoughtful consultation among them, conducted in the only way allowed, that is, peacefully, and in every case conformably to reasonable regulation. Any violation of the legal requirements and strictures, such as a defiance of a return-to-work order in industries affected with public interest, will render the strike illegal, to the detriment of the very workers it is supposed to protect. (BLT Bus v. NLRC)
B. Strike
1. Definition
Article. 212. (o) "Strike" means any temporary stoppage of work by the concerted action of employees as a result of an industrial orlabor dispute.
Book V, Rule I Section 1. (q) "Strike" means any temporary stoppage of work by the concerted action of employees as a result of a labor or industrial dispute.
*G&S Transport v. Infante: The strike undertaken by respondents took the form of a sit-down strike, or more aptly termed as a sympathetic strike, where the striking employees have no demands or grievances of their own, but they strike for the purpose of directly or indirectly aiding others, without direct relation to the advancement of the interest of the strikers
*Bukluran ng Manggagagawa v. CA: A labor dispute includes any controversy or matter concerning terms or conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.
2. Nature and Purpose
Strike is a coercive measure resorted to by laborers to enforce their demands. The idea behind a strike is that a company engaged in a profitable business cannot afford to have its production or activities interrupted, much less paralyzed. (Phil Can Co v. CIR)
3. Scope of the term “Strike”
The term "strike" encompasses not only concerted work stoppages, but also slowdowns, mass leaves, sit-downs, attempts to damage,
destroy or sabotage plant equipment and facilities, and similar activities (Sta Rosa Coca Cola Plant EEs v. CCBP)
4. Effect on Work Relationship
*Chuayuco v. Buklod ng Manggagawa: Thus, a union officer may be declared to have lost his employment status if he knowingly participates in an illegal strike, whereas a union member may be similarly faulted if he knowingly participates in the commission of illegal acts during the strike. Substantial evidence, which is that level of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion, suffices to prove participation in the commission of illegal acts
*G&S Transport v. Infante: The principle of a fair days wage for a fair days labor remains as the basic factor in determining the award of backwages. If there is no work performed by the employee there can be no wage or pay unless, of course, the laborer was able, willing and ready to work but was illegally locked out, suspended or dismissed or otherwise illegally prevented from working. But for this to apply, it is required that the strike be declared legal. Therefore, reinstatement without backwages suffices for the appropriate relief. If reinstatement is no longer possible, given the lapse of considerable time from the occurrence of the strike, the award of separation pay of 1 month salary for each year of service, in lieu of reinstatement, is in order.
Note: Exception to this when they have an agreement to the contrary.
UP Bar: When the strikers abandon the strike and apply for reinstatement despite existence of valid grounds but the ER (1) refuses to reinstate or (2) imposes upon their reinstatement certain conditions it would be ULP.
Reinstatement: GRule Employees who are discriminatorily dismissed as well as those who strike because of ERs ULP are entitled to reinstatement. Except (1) Those who committed violence or misconduct during the strike (2) because of employment elsewhere, they have forfeited right to reinstatement.
5. Types and Conversion
Legal Strike – One called for a valid purpose and conducted through means allowed by law
Illegal Strike – One staged for a purpose not recognized by law, or if for a valid purpose, conducted through means not sanctioned by law.
Economic Strike – One staged by workers to force wage or other economic concessions from the employer which he is not required by law to grant.
ULP Strike – One arising out of and against a company’s ULP
Slowdown Strike – One by which the workers, without a complete stoppage of work, retard production or their performance of duties and functions to compel management to grant their demands
Wild-cat Strike – One declared and staged without filing the required notice of strike and without the majority approval of the recognized bargaining agent
Sit down Strike – One where the workers stop working but do no leave the place of their work
Conversion – It is possible for a strike to change its character from an economic to a ULP strike. Initially the strike was staged by the
Union was meant to compel the Company to grant it benefits. However, strike changed characted from the time the Company refused to reinstate complainants because of their union activities.
Non-conversion – A strike cannot be converted into a pure and simple lockout by the mere expedient filing before the trial court a notice of offer to return to work during the pendency of the labor dispute between the union and the EE.
a. Unfair Labor Practice
Art. 263(c) In case of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lockout with the Ministry at least 30 day before the intended date thereof. In cases of unfair labor practice, the period of notice shall be 15 days and in the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members. However, in case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting, where the existence of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately.
b. Bargaining Deadlock – Economic/ULP
Art. 263(c)
7. Grounds
Book V Rule XXII Section 5. Grounds for strike or lockout.
A strike or lockout may be declared in cases of:(1) bargaining deadlocks (2) unfair labor practices. (3) Violations of collective bargaining agreements, except flagrant and/or malicious refusal to comply with its economic provisions, shall not be considered unfair laborpractice and shall not be strikeable.
No strike or lockout may be declared:(1) On grounds involving interunion and intra-union disputes, or (2) Without first having filed a notice of strike or lockout or, (3) without the necessary strike or lockout vote having been obtained and reported to the NCMB. (4) After assumption of jurisdiction by the Secretary or(5)After certification or submission of the dispute to compulsory or voluntary arbitration or (6)During the pendency of cases involving the samegrounds for the strike or lockout
a. Allowable Strikes
Article 263(c)In case of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lockout with the Ministry at least 30 day before the intended date thereof.
In cases of unfair labor practice , the period of notice shall be 15 days.
In the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members.
Union Busting: In case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting, where the existence of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately.
b. Prohibited Strikes
Article 263(b) However, no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intra-union disputes
Article 263(g) When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return-to-work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary of Laborand Employment or the Commission may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same.
In line with the national concern for and the highest respect accorded to the right of patients to life and health, strikes and lockouts in hospitals, clinics and similar medical institutions shall, to every extent possible, be avoided, and all serious efforts, not only by labor and management but government as well, be exhausted to substantially minimize, if not prevent, their adverse effects on such life and health, through the exercise, however legitimate, by labor of its right to strike and by management to lockout. In labor disputes adversely affecting the continued operation of such hospitals, clinics or medical institutions, it shall be the duty of the striking union or locking-out employer to provide and maintain an effective skeletal workforce of medical and other health personnel, whose movement and services shall be unhampered and unrestricted, as are necessary to insure the proper and adequate protection of the life and health of its patients, most especially emergency cases, for the duration of the strike or lockout. In such cases, therefore, the Secretary of Labor and Employment may immediately assume, within twenty four (24) hours from knowledge of the occurrence of such a strike or lockout, jurisdiction over the same or certify it to the Commission for compulsory arbitration. For this purpose, the contending parties are strictly enjoined to comply with such orders, prohibitions and/or injunctions as are issued by the Secretary of Labor and Employment or the Commission, under pain of immediate disciplinary action, including dismissal or loss of employment status or payment by the locking-out employer of backwages, damages and other affirmative relief, even criminal prosecution against either or both of them.
The foregoing notwithstanding, the President of the Philippines shall not be precluded from determining the industries that, in his opinion, are indispensable to the national interest, and from intervening at any time and
assuming jurisdiction over any suchlabor dispute in order to settle or terminate the same
Article. 264 (a) No labor organization or employer shall declare a strike or lockout without first having:
(1) Bargained collectively in accordance with Title VII of this Book or
(2) Without first having filed the notice required in the preceding Article or
(3)Without the necessary strike or lockout vote first having been obtained and reported to the Ministry. aw l
(4)After assumption of jurisdiction by the President or the Minister or
(5)After certification or submission of the dispute to compulsory or voluntary arbitration or
(6)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
Intra Union/Inter Union dispute: An intra-union dispute refers to any conflict between and among union members. It encompasses all disputes or grievances arising from any violation of or disagreement over any provision of the constitution and by-laws of a union, not excepting cases arising from chartering or affiliation of labor organizations or from any violation of the rights and conditions of union membership provided for
in the Labor Code In contrast, an inter-union dispute refers to any conflict between and among legitimate labor organizations involving questions of representation for purposes of collective bargaining; it includes all other conflicts which legitimate labor organizations may have against each other based on any violations of their rights as labor organizations. (Marino v. Gamilla)
c. No Strike Clause
A “no strike, no lock-out” provision in the CBA is a valid stipulation though the clause may be invoked by the ER only when the strike is economic in nature or one which is conducted to force wage or other concession from the employer that are not mandated to be granted by the law itself. It would be Inapplicable to prevent a strike grounded on ULP (Panay Electric v. NLRC)
8. Striking Party
Book V Rule XXII Section 6. Who may declare a strike or lockout.
(1) Any certified or duly recognized bargaining representative may declare a strike in cases of bargaining deadlocks and unfair labor practices.
(2) The employer may declare a lockout in the same cases.
(3) In the absence of a certified or duly recognized bargaining representative, any legitimate labor organization in the establishment may declare a strike but only on grounds of unfair labor practices.
9. Procedural Requirements
a. Effort to Bargain
Art. 264(a) supra Art. 250-252
1. Employer’s Counter-Proposal
In the instant case, the union cannot be faulted for its omission. The union could not have attached the counter-proposal of the company in the notice of strike it submitted to the NCMB as there was no such counter-proposal. To recall, the union filed a notice of strike on April 6, 2001 after several requests to start negotiations proved futile. (Club Filipino v. Bautista)
b. Filing of Notice of Intention
Art. 264(a) supra
Art. 263 (c) In case of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lockout with the Ministry at least 30 day before the intended date thereof. In cases of unfair labor practice, the period of notice shall be 15 days and in the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members. However, in case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting, where the existence of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately.
(d) The notice must be in accordance with such implementing rules and regulations as the Minister of Labor and Employment may promulgate.
(e) During the cooling-off period, it shall be the duty of the Ministry to exert all efforts at mediation and conciliation to effect a voluntary settlement. Should the dispute remain unsettled until the lapse of the requisite number of days from the mandatory filing of the notice, the labor union may strike or the employer may declare a lockout.
Book V, Rule XXII Section 8. The notice shall state, among others:
(1) the names and addresses of the employer and the union involved,
(2) the nature of the industry to which the employer belongs,
(3)the number of union members and of the workers in the bargaining unit,
(4) and such other relevant data as may facilitate the settlement of the dispute, such as a brief statement or enumeration of all pending labor disputes involving the same parties.
In cases of bargaining deadlocks, the notice shall further state:
(1) the unresolved issues in the bargaining negotiations
(2) accompanied by the written proposals of the union,
(3) the counter-proposals of the employer and
(4) the proof of a request for conference to settle the differences.
In cases of unfair labor practices, the notice shall state:
(1) the acts complained of
(2) the efforts taken to resolve the dispute amicably.
In case a notice does not conform with the requirements of this and the foregoing section/s, the regional branch of the Board shall inform the concerned party of such fact.
Book V, Rule XXII Section 9. Upon receipt of the notice, the regional branch of the Board shall exert all efforts at mediation and conciliation to enable the parties to settle the dispute amicably. The regionalbranch of the Board may, upon agreement of the parties, treat a notice as a preventive mediation case.It shall also encourage the parties to submit the dispute to voluntary arbitration.
During the proceedings, the parties shall not do any act which may disrupt or impede the early settlement of the dispute. They are obliged, as part of their duty to bargain collectively in good faith and to participate fully and promptly in the conciliation meetings called by the regional branch of the Board.
A notice, upon agreement of the parties, may be referred to alternative modes of dispute resolution, including voluntary arbitration.
c. Observance of Cooling Off Period
Art. 263(c)(e)
Purpose of the cooling off period is to provide an opportunity for mediation and conciliation. The waiting period on the other hand is intended to provide opportunity for the members of the union or the management to take the appropriate remedy in case the strike or lockout vote report is false or inaccurate. Observance of BOTH periods must be complied with. Although a labor union may take a strike vote and report the same within the statutory cooling off period. The cooling-off and 7-day strike ban provisions of law constitute a valid exercise of police power. (National Federation of Sugar Workers v. Ovejera)
In case of union busting, where the existence of the union is threatened, it is only the 15 day cooling off period that may be dispensed with (Sukhothai v. CA)
d. Vote
Art. 263(f) A decision to declare a strike must be (1) approved by a majority of the total union membership in the bargaining unit concerned(2) obtained by secret ballot (3) in meetings or referenda called for that purpose.
A decision to declare a lockout must be (1) approved by a majority of the board of directors of the corporation or association or of the partners in a partnership, (2) obtained by secret ballot (3) in a meeting called for that purpose.
The decision shall be valid for the duration of the dispute based on substantially the same grounds considered when the strike or lockout vote was taken.
The Ministry may, at its own initiative or upon the request of any affected party, supervise the conduct of the secret balloting. In every case, the union or the employer shall furnish the Ministry the results of the voting at least seven days before the intended strike or lockout, subject to the cooling-off period herein provided.
*NSFW v. Ovejera: In the event the result of the strike ballot is filed within the cooling off period, the 7 day requirement shall be counted from the day following the expiration of the cooling off period.
10. Test of Legality
a. Legal Strikes
i. Purpose and Means Test
There must be concurrence between the validity of the purpose of the strike and the means of conducting it.
Even if the strike is valid because its objective or purpose is lawful, the strike may still be declared invalid where the means employed are illegal (Phil Diamond Hotel v. Manila Diamond Hotel)
ii. Guidelines and Balancing of Interest
The right to strike, while constitutionally recognized, is not without legal restrictions. The Labor Code regulates the exercise of said right by balancing the interests of labor and management in the light of the overarching public interest. Thus, paragraphs (c) and (f) of Article
263 mandate procedural steps to be followed before a strike may be staged. (Stamford v Julian)
iii. Defenses – Good Faith
General Rule: A strike based on non-strikeable grounds is illegal.
Exception: Where the employees believe it in good faith that ULP acts exist so as to constitute a valid ground to strike.
However, a mere claim of good faith would not justify the holding of a strike under the aforesaid exception as, in addition thereto, the circumstances must have warranted such belief. When circumstances CLEARLY negate even a prima facie showing of good faith, then it is not enough.
b. Illegal Strikes
i. Basis of illegality
Art. 263(b)(c) 264(a) 265
*A Soriano Aviation v, Employees Association of A Soriano Aviation: The Union members’ repeated name-calling, harassment and threats of bodily harm directed against company officers and non-striking employees and, more significantly, the putting up of placards, banners and streamers with vulgar statements imputing criminal negligence to the company, which put to doubt reliability of its operations, come within the purview of illegal acts under Art. 264 and jurisprudence.
That the alleged acts of violence were committed in nine non-consecutive days during the almost eight months that the strike was on-going does not render the violence less pervasive or widespread to be excusable. Nowhere in Art. 264 does it require that violence must be continuous or that it should be for the entire duration of the strike
ii. Effect of illegality
Art. 264(a)
Any union officer who knowingly participates in an illegal strike Terminated
Any union member who knowingly participates in commission of illegal acts during a strike Terminated.
*Stamford v. Julian: Article 264 of the Labor Code, in providing for the consequences of an illegal strike, makes a distinction between union officers and members who participated thereon. Thus, knowingly participating in an illegal strike is a valid ground for termination from employment of a union officer. The law, however, treats differently mere union members. Mere participation in an illegal strike is not a sufficient ground for termination of the services of the union members. The Labor Code protects an ordinary, rank-and-file union member who participated in such a strike from losing his job, provided that he did not commit an illegal act during the strike. Thus, absent any clear, substantial and convincing proof of illegal acts committed during an illegal strike, an ordinary striking worker or employee may not be terminated from work
With respect to union officers, however, there is no dispute they could be dismissed for participating in an illegal strike. Union officers are duty- bound to guide their members to respect the law. Nonetheless, as in other termination cases, union officers must be given the required notices for terminating an employment, i.e., notice of hearing to enable them to present their side, and notice of termination, should their explanation prove unsatisfactory. Nothing in Article 264 of the Labor Code authorizes an immediate dismissal of a union officer for participating in an illegal strike. The act of dismissal is not intended to happen ipso facto but rather as an option that can be exercised by the employer and after compliance with the notice requirements for terminating an employee. In this case, petitioners did not give the required notices to the union officers.
iii. Effect of Assumption/Certification Order
Art. 263(g) When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return-to-work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary of Laborand Employment or the Commission may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such
orders as he may issue to enforce the same.
*Telefunken v. CA: The moment the Secretary assumes jurisdiction over a labor dispute in an industry indispensable to national interest, such assumption shall have the effect of automatically enjoining the intended or impending strike. Not necessary to issue another order directing a return to work since mere issuance of an assumption order automatically caries with it a return to work order.
11. Employment of Strike Breakers
Art. 264 (c) No employer shall use or employ any strike-breaker, nor shall any person be employed as a strike-breaker.
Art. 212(r) "Strike-breaker" means any person who obstructs, impedes, or interferes with by force, violence, coercion, threats, or intimidation any peaceful picketing affecting wages, hours or conditions of work or in the exercise of the right of self-organization or collective bargaining
12. Improved Offer Balloting and Strikes
Article. 265. Improved offer balloting. - In an effort to settle a strike, the Department of Labor and Employment shall conduct a
referendum by secret ballot on the improved offer of the employer on or before the 30th day of the strike. When at least a majority of the union members vote to accept the improved offer the striking workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement.
In case of a lockout, the Department of Labor and Employment shall also conduct a referendum by secret balloting on the reduced offer of the union on or before the 30th day of the lockout. When at least a majority of the board of directors or trustees or the partners holding the controlling interest in the case of a partnership vote to accept the reduced offer, the workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement.
C. Slowdown as Concerted Activity
Slowdown is generally condemned as inherently illicit and unjustifiable, because while the employees "continue to work and remain at their positions and accept the wages paid to them," they at the same time "select what part of their allotted tasks they care to perform of their own volition or refuse openly or secretly, to the employer's damage, to do other work;" in other words, they "work on their own term (Ilaw at Buklod ng Manggagawa v. NLRC)
D. Picketing
Book V Rule XXII Section 13. Peaceful picketing. - Workers shall have the right to peaceful picketing. No person engaged in picketing shall commit any act of violence, coercion or intimidation or obstruct the free ingress to or egress from the employer's premises for lawful purposes, or obstruct public thoroughfares.
No person shall obstruct, impede or interfere with, by force, violence, coercion, threats or intimidation, any peaceful picketing by workers during any labor controversy or in the exercise of the right to selforganization or collective bargaining or shall aid or abet such obstruction or interference.
No employer shall use or employ any person to commit such acts nor shall any person be employed for such purpose.
1. Nature and Purpose of Picket Line
Picketing involves merely the marching to and fro at the premises of the employer, usually accompanied by the display of placards and other signs making known the facts involved in a labor dispute. As applied to a labor dispute, to picket means the stationing of one or more persons to observe and attempt to observe. The purpose of pickets is said to be a means of peaceable persuasion (Sta Rosa Coca-Cola Union v. CCBP)
2. Picketing and Libel Laws
It is a fact of industrial life that in the continuing confrontation between labor and management, it is far from likely that the language employed would be both courteous and polite (PCIB v. Philnabank Employees)
3. Curtailment
Peaceful picketing cannot be restrained because the same is part of the freedom of speech. But illegal picketing may be restrained and prohibited (Free Telephone Workers Union v. PLDT)
4. Regulation/Restrictions, Innocent Third Party Rule and Liabilities.
The right to picket as a means of communicating the facts of a labor dispute is a phrase of the freedom of speech guaranteed by the
constitution. If peacefully carried out, it cannot be curtailed even in the absence of employer-employee relationship.
The right is, however, not an absolute one. While peaceful picketing is entitled to protection as an exercise of free speech, we believe that courts are not without power to confine or localize the sphere of communication or the demonstration to the parties to the labor dispute, including those with related interest, and to insulate establishments or persons with no industrial connection or having interest totally foreign to the context of the dispute. Thus, the right may be regulated at the instance of third parties or "innocent. bystanders" if it appears that the inevitable result of its exercise is to create an impression that a labor dispute with which they have no connection or interest exists between them and the picketing union or constitute an invasion of their rights. (Liwayway v. Permanent Concrete)
5. Prohibited Activities – Peaceful Picketing
Art. 264(b) No person shall obstruct, impede, or interfere with, by force, violence, coercion, threats or intimidation, any peaceful picketing by employees during any labor controversy or in the exercise of the right to self-organization or collective bargaining, or shall aid or abet such obstruction or interference
E. Role of Peace Officers During Strikes and Picketing
1. EscortingArt. 264(d) No public official or employee, including officers and personnel of the New Armed Forces of the Philippines or the Integrated National Police, or armed person, shall bring in, introduce or escort in any manner, any individual who seeks to replace strikers in entering or leaving the premises of a strike area, or work in place of the strikers. The police force shall keep out of the picket lines unless actual violence or other criminal acts occur therein: Provided, That nothing herein shall be interpreted to prevent any public officer from taking any measure necessary to maintain peace and order, protect life and property, and/or enforce the law and legal order.
2. Arrest and Detention of Law Violators
Article. 266. Requirement for arrest and detention. - Except on grounds of national security and public peace or in case of commission of a crime, no union members or union organizers may be arrested or detained for union activities without previous consultations with the Secretary of Labor.
X. EMPLOYER LOCKOUT
A. Basis, Limitation and Definition
Art. 212(p) "Lockout" means any temporary refusal of an employer to furnish work as a result of an industrial or labor dispute
B. Ground for Lockout
Art. 263 (c)In case of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lockout with the Ministry at least 30 day before the intended date thereof. In cases of unfair laborpractice, the period of notice shall be 15 days and in the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members. However, in case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting,
where the existence of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately
C. Prohibited Lockout
Art. 263(b) Workers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection. The right of legitimate labor organizations to strike and picket and of employers to lockout, consistent with the national interest, shall continue to be recognized and respected. However, no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intra-union disputes.
Art. 263(g) When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return-to-work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary of Labor and Employment or the Commission may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same.
Article. 264 (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.chan robles virtual law libraryNo 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
D. Procedural Requirements
Art. 264(a)(d)(e) Same as strike
E. Effect of Illegal Lockout
Art. 264(a) par 3 1st sentence
XI. LABOR INJUNCTION
A. Definition and Nature
Generally, injunction is a preservative remedy for the protection of one's substantive rights or interest. It is not a cause of action in itself but merely a provisional remedy, an adjunct to a main suit. It is resorted to only when there is a pressing necessity to avoid injurious consequences which cannot be remedied under any standard of compensation. The application of the injunctive writ rests upon the existence of an emergency or of a special reason before the main case be regularly heard.
The essential conditions for granting such temporary injunctive relief are that the:1. Complaint alleges facts which appear to be sufficient to constitute a proper basis for injunction and
2. that on the entire showing from the contending parties, the injunction is reasonably necessary to protect the legal rights of the plaintiff pending the litigation.
Injunction is also a special equitable relief granted only in cases where there is no plain, adequate and complete remedy at law.
An injunction, as an extraordinary remedy, is not favored in labor law considering that it generally has not proved to be an effective means of settling labor disputes. It has been the policy of the State to encourage the parties to use the non-judicial process of negotiation and compromise, mediation and arbitration. Thus, injunctions may be issued only in cases of extreme necessity based on legal grounds clearly established, after due consultations or hearing and when all efforts at conciliation are exhausted which factors. (PAL v. NLRC)
PAL v. NLRC: jurisdiction of the NLRC in illegal dismissal cases is appellate in nature and, therefore, it cannot entertain the private respondents' petition for injunction which challenges the dismissal orders of petitioner. Article 218(e) of the Labor Code does not provide blanket authority to the NLRC or any of its divisions to issue writs of injunction, considering that Section 1 of Rule XI of the New Rules of Procedure of the NLRC makes injunction only an ancillary remedy in ordinary labor disputes.
Under the Labor Code, the ordinary and proper recourse of an illegally dismissed employee is to file a complaint for illegal dismissal with the labor arbiter. In the case at bar, private respondents disregarded this rule and directly went to the NLRC through a petition for injunction praying that petitioner be enjoined from enforcing its dismissal orders
B. General Rule – Prohibition
Article 254. Injunction prohibited. – No temporary or permanent injunction or restraining order in any case involving or growing out of labor disputes shall be issued by any court or other entity, except as otherwise provided in Articles 218 and 264 of this Code.
Article 212(l) "Labor dispute" includes any controversy or matters:1. concerning terms and conditions of employment or the association or 2. representation of persons in negotiating, fixing, maintaining, changing or 3. arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee
Article. 211. A(a). It is the policy of the State: To promote and emphasize the primacy of free collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling labor or industrial disputes
Article. 218(e). The Commission shall have the power and authority:
To enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts or to require the performance of a particular act in any labor dispute which, if not restrained or performed forthwith, may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party: Provided, That no temporary or permanent injunction in any case involving or growing out of alabor dispute as defined in this Code shall be issued except after hearing the testimony of witnesses, with opportunity for cross-examination, in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and only after a finding of fact by the Commission, to the effect:
(1) That prohibited or unlawful acts have been threatened and will be committed and will be continued unless restrained, but no injunction or temporary restraining order shall be issued on account of any threat, prohibited or unlawful act, except against the person or persons, association or organization making the threat or committing the prohibited or unlawful act or actually authorizing or ratifying the same after actual knowledge thereof;(2) That substantial and irreparable injury to complainant’s property will follow;
(3) That as to each item of relief to be granted, greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by the granting of relief;
(4) That complainant has no adequate remedy at law; and
(5) That the public officers charged with the duty to protect complainant’s property are unable or unwilling to furnish adequate protection.
Book V, Rule XXII, Section 14. No court or entity shall enjoin any picketing, strike or lockout, except as provided in Articles 218 and 263 of the Labor Code.
The Commission shall have the power to issue temporary restraining orders in such cases but only after due notice and hearing and in accordance with its rules. The reception of evidence for the application of a writ of injunction may be delegated by the Commission to any Labor Arbiter who shall submit his recommendations to the Commission for its consideration and resolution.
Any ex parte restraining order issued by the Commission, or its chairman or Vice-Chairman where the Commission is not in session and as prescribed by its rules, shall be valid for a period not exceeding twenty (20) days.
San Miguel v. NLRC: Pursuant to Article 218 (e), the coercive measure of injunction may also be used to restrain an actual or threatened unlawful strike.
Moreover, it bears stressing that Article 264(a) of the Labor Code explicitly states that a declaration of strike without first having filed the required notice is a prohibited activity, which may be prevented through an injunction in accordance with Article 254.
Caltex v. CIR: The prohibition to issue labor injunctions is designed to give labor a comparable bargaining power with capital and must be liberally construed to that end. Moreover, there can be no injunction issued against any strike except in only one instance, that is, when a labor dispute arises in
an industry indispensable to the national interest and such dispute is certified by the President of the Philippines to the Court of Industrial Relations in compliance with Sec. 10 of Republic Act No. 875.
As a corollary to this, an injunction in an uncertified case must be based on the strict requirements of Sec. 9(d) of Republic Act No. 875; the purpose of such an injunction is not to enjoin the strike itself, but only unlawful activities
C. Exceptions – When Allowed
Art 254 and 218(e) supra
Article. 264. (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.
(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.
(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.
D. Issuing Agency
1. National Labor Relations Commission; Labor Arbiter
Article 218(e) supra
National Mines v. Vera: Petitioners' reliance on the provision of Art. 254 of the New Labor Code (herein earlier quoted) which prohibits injunctions or restraining orders in any case involving or growing out of a 'labor dispute' is not well-taken. This has no application to the case at bar. Civil Case No. 2749 is one which neither "involves" nor "grows out" of a labor dispute
2. Procedural Requirements and Rules for the Issuance of Labor Injunctions
Art. 218(e) Such hearing shall be held after due and personal notice thereof has been served, in such manner as the Commission shall direct, to all known persons against whom relief is sought, and also to the Chief Executive and other public officials of the province or city within which the unlawful acts have been threatened or committed, charged with the duty to protect complainant’s property
a. Complaint made under Oathb. Notice and hearing duly served to:
1. All persons against whom relief is sought2. Chief Executive3. Other public officials of the province or city within which the unlawful acts have been threatened or committed charged with the duty to protect complainants property.
c. Hearingd. A finding of fact by the Commission that: (prohibited acts have been threatened etc.)
Bisig ng Manggagawa sa Concrete v. NLRC: the issuance of an ex parte temporary restraining order in a labor dispute is not per se prohibited. Its issuance, however, should be characterized by care and caution for the law requires that it be clearly justified by considerations of extreme necessity, i.e., when the commission of unlawful acts is causing substantial and irreparable injury to company properties and the company is, for the moment, bereft of an adequate remedy at law. This is as it ought to be, for imprudently issued temporary restraining orders can break the back of employees engaged in a legal strike. Often times, they unduly tilt the balance of a labor warfare in favor of capital. When that happens, the deleterious effects of a wrongfully issued, ex parte temporary restraining order on the rights of striking employees can no longer be repaired for they defy simple monetization. Moreover, experience shows thatex parte applications for restraining orders are often based on fabricated facts and concealed truths. A more becoming sense of fairness, therefore, demands that such ex parte applications should be more minutely examined by hearing officers, lest, our constitutional policy of protecting labor becomes nothing but a synthetic shibboleth. The immediate need to hear and resolve these ex parte applications does not provide any excuse to lower our vigilance in protecting labor against the issuance of indiscriminate injunctions. Stated otherwise, it behooves hearing officers receiving evidence in support of ex parte injunctions against employees in strike to take a more active stance in seeing to it that their right to social justice is in no way violated despite their absence.
3. Temporary Restraining Order
Art. 218(e)Provided, however, that if a complainant shall also allege that, unless a temporary restraining order shall be issued without notice, a substantial and irreparable injury to complainant’s property will be unavoidable, such a temporary restraining order
may be issued upon testimony under oath, sufficient, if sustained, to justify the Commission in issuing a temporary injunction upon hearing after notice. Such a temporary restraining order shall be effective for no longer than twenty (20) days and shall become void at the expiration of said twenty (20) days. No such temporary restraining order or temporary injunction shall be issued except on condition that complainant shall first file an undertaking with adequate security in an amount to be fixed by the Commission sufficient to recompense those enjoined for any loss, expense or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs, together with a reasonable attorney’s fee, and expense of defense against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the Commission.
The undertaking herein mentioned shall be understood to constitute an agreement entered into by the complainant and the surety upon which an order may be rendered in the same suit or proceeding against said complainant and surety, upon a hearing to assess damages, of which hearing, complainant and surety shall have reasonable notice, the said complainant and surety submitting themselves to the jurisdiction of the Commission for that purpose. But nothing herein contained shall deprive any party having a claim or cause of action under or upon such undertaking from electing to pursue his ordinary remedy by suit at law or in equity:
Provided, further, That the reception of evidence for the application of a writ of injunction may be delegated by the Commission to any of its Labor Arbiters who shall conduct such hearings in such places as he may determine to be accessible to the parties and their witnesses and shall submit thereafter his recommendation to the Commission.
a. Allegation that unless a TRO shall be issued without notice a substantial and irreparable injury to his/her property will be unavoidableb. Testimony under oath to justify the Commission in issuing a temporary injunction upon hearing after notice.c. Filing of undertaking with adequate security in the amount to be fixed by the Commission sufficient to recompense for:
1. any loss, expense or damage caused by the improvident or erroneous issuance of injunction2. reasonable attorney’s fees3. expense of defense against the order or against granting of any injunctive relief sough in the same proceeding4. all other reasonable costs.
d. TRO shall be effected for no longer than 20 days and shall become void ipso facto upon expiration of said period
Dinio v. Laguesma: There is no question that the issuance of a temporary restraining order is addressed to the sound discretion of the Med-Arbiter. However, "this discretion should be exercised based upon the grounds and in the manner provided by law. In the case of labor injunctions or temporary restraining orders, one may issue only in instances where the complainant or applicant will suffer grave or irreparable damages .
While it is true that the Med-Arbiter has the authority to issue a writ of preliminary injunction, or a temporary restraining order against any arising from any case pending before him, the exercise thereof shall always be subject to the test of reasonableness.
If petitioners took time to peruse the Labor Code, they will ultimately find out, in Article 218 thereof, that temporary restraining orders issued in labor disputes also have a lifetime of only twenty (20) days. Said rule is in keeping with the rationale that "a temporary restraining order can no longer exist indefinitely for it has become truly temporary."
