LABOR RELATIONS (Part I)

Atty. NELSON T. BANDOLES, LPT

Right to self-organization
• Who may exercise the right?
1. All persons employed in commercial, industrial and agricultural
enterprises;
2. EEs of GOCCs without original charters;
3. EEs of religious, charitable, medical or educational institutions whether
operating for profit or not;
4. Front-line managers, commonly known as supervisory EEs;
5. Alien EEs;
6. Working children;
7. Homeworkers;
8. EEs of cooperatives;
9. EEs of legitimate contractors
Previous Bar Question
Philhealth is a government-owned and controlled
corporation employing thousands of Filipinos. Because of
the desire of the employees of Philhealth to obtain better
terms and conditions of employment from the government,
they formed the Philhealth Employees Association (PEA)
and demanded Philhealth to enter into negotiations with
PEA regarding terms and conditions of employment which
are not fixed by law. (4%)
A) Are the employees of Philhealth allowed to self-organize
and form PEA and thereafter demand Philhealth to enter
into negotiations with PEA for better terms and conditions of
employment? (2014 BEQ)
Sample Answer:
• Yes. Employees of Philhealth are allowed to selforganize
under Sec. 8, Art. III and Sec. 3, Art. XIII of the
Constitution which recognize the rights of all workers to
self-organization. They cannot demand, however, for
better terms and conditions of employment for the same
are fixed by law (Art. 244, Labor Code), besides, their
salaries are standardized by Congress (Art. 276, Labor
Code).
 Members or EEs of cooperatives
• Members of a cooperative have no right to form or join labor
organizations for purposes of collective bargaining for being
themselves co-owners of the cooperative. This prohibition
covers EEs of the cooperative who are at the same time
members thereof. However, insofar as the cooperative's
EEs who are not members or co-owners thereof are
concerned, they are entitled to exercise their right to self-
organization and collective bargaining as guaranteed in the
Constitution and existing laws. It is the fact of ownership of
the cooperative and not involvement in the management
thereof which disqualifies a member from joining any labor
organization within the cooperative.
Previous Bar Question
• A, an employee of XYZ Cooperative, owns 500 shares in
the cooperative. He has been asked to join the XYZ
Cooperative Employees Association. He seeks your
advice on whether he can join the association. What
advice will you give him? (3%) (2010 BEQ)
Previous Bar Question
• Juicy Bar and Night Club allowed by tolerance fifty (50) Guest Relations
Officers (GROs) to work without compensation in its establishment under the
direct supervision of its Manager from 8:00 P.M. To 4:00 A.M. everyday,
including Sundays and holidays. The GROs, however, were free to ply their
trade elsewhere at anytime, but once they enter the premises of the night
club, they Were required to stay up to closing time. The GROs earned their
keep exclusively from commissions for food and drinks, and tips from
generous customers. In time, the GROs formed the Solar Ugnayan ng mga
Kababaihang lnaapi (SUKI), a labor union duly registered with DOLE.
Subsequently, SUKI filed a petition for Certification Election in order to be
recognized as the exclusive bargaining agent of its members. Juicy Bar and
Night Club opposed the petition for Certification Election on the singular
ground of absence of employer-employee relationship between the GROs on
one hand and the night club on the other hand. May the GROs form SUKI as
a labor organization for purposes of collective bargaining? Explain briefly.
(5%)
Public Sector
• In the public sector, all rank-and-file EEs of all branches,
subdivisions, instrumentalities, and agencies of
government, including GOCCs with original charters, can
form, join, or assist labor organizations called employees'
orgnizations of their own choosing.
Right of specific workers:
1. SUPERVISORS. There is no prohibition in the law or in the
implementing rules regarding the right of supervisory EEs to
organize a labor organization or workers' association of their
own. They are however, not allowed to become members of a
labor union composed of rank-and-file EEs (Article
255[245],LC). In case there is mixed membership of supervisors
and rank-and-file EEs in one union, the new rule enunciated in
Article 256[245-A] of the LC, is that it cannot be invoke as a
ground for the cancellation of the registration of the union. The
EEs so improperly included are automatically deemed removed
from the list of members of said union. In other words, their
removal from the said list is by operation of law.
Previous Bar Question
• Samahang Manggagawa ng Terracota, a union of
supervisory employees at Terracota Inc., recently
admitted a member of the company’s managerial staff, A,
into the union ranks.
• Should A be a member of the supervisory union? Explain.
(2%)
• Assuming that A is ineligible to join the union, should the
registration of Samahang Manggagawa ng Terracota be
cancelled? Explain. (3%) (2010 BEQ)
Previous Bar Question
• Company XYZ has two recognized labor unions, one for its
rank-and-file employees (RFLU), and one for supervisory
employees (SELU). Of late, the company instituted a
restructuring program by virtue of which A, a rank-and-file
employee and officer of RFLU, was promoted to a supervisory
position along with four (4) other colleagues, also active union
members and/or officers. Labor Union KMJ, a rival labor
union seeking recognition as the rank-and-file bargaining
agent, filed a petition for the cancellation of the registration of
RFLU on the ground that A and her colleagues have
remained to be members of RFLU. Is the petition meritorious?
Explain. (3%) (2010 BEQ)
2. ALIEN EEs.
a) He should have a valid working permit issued by
DOLE; and
b) He is a national of a country which grants the same or
similar rights to Filipino workers or which has ratified either
ILO Convention No. 87 or ILO Convention No. 98, as
certified by the DFA.
Previous Bar Question
• George is an American who is working as a consultant for
a local IT company. The company has a union and
George wants to support the union. How far can George
go in terms of his support for the union? (3%) (2015 BEQ)
3. Working children.
Under PD No. 603, it is clearly provided that neither
management nor any collective bargaining unit shall threaten or
coerce working children to join, continue or withdraw as
members of such union.
4. Homeworkers (D. O. No. 5, Series of 1992)
Homeworkers have the right to form, join or assist
organizations of their own choosing in accordance with law.
5. EEs of legitimate contractors.
But this right cannot be exercised and invoked against the
principal but only against the independent contractor which
employed them.
6. Workers who have no ERs, such as ambulant vendors,
intermittent and other workers, self-employed, rural
workers, and those without any definite ERs.
They are allowed to organize labor organizations or
workers associations for mutual aid and protection and
not for collective bargaining.
Persons who cannot exercise:
1. Private Sector:
a) Managerial EEs; and
b) Confidential EEs.
2. Public Sector:
a) High-level EEs whose functions are normally considered as
policy-making or managerial or whose duties are of a highly-
confidential nature;
b) Members of the AFP;
c) Policemen;
d) Police officers;
e) Firemen; and
f) Jail guards.
Supervisory EE Rule
• Supervisors may organize own union but are prohibited
from joining the rank-and-file union.

Confidential EE Rule
• Confidential EEs are those who assist or act in a
confidential capacity to persons or officers who formulate,
determine, and effectuate management policies
specifically in the field of labor relations.
Previous Bar Question
• Section 255 (245) of the Labor Code recognizes three
categories of employees, namely: managerial, supervisory,
and rank-and-file.
• (a) Give the characteristics of each category of employees,
and state whether the employees in each category may
organize and form unions. Explain your answer. (5%)
• (b) May confidential employees who assist managerial
employees, and who act in a confidential capacity or have
access to confidential matters being handled by persons
exercising managerial functions in the field of labor relations
form, or assist, or join labor unions? Explain your answer.
(2.5%) (2017 BEQ)
Previous Bar Question
Nexturn Corporation employed Nini and Nono, whose tasks
involved directing and supervising rank-and-file employees
engaged in company operations. Nini and Nono are required to
ensure that such employees obey company rules and
regulations, and recommend to the company's Human
Resources Department any required disciplinary action against
erring employees. In Nextum Corporation, there are two
independent unions, representing rank-and-file and supervisory
employees, respectively.
a) May Nini and Nono join a union? (2.5%)
b) May the two unions be affiliated with the same Union
Federation? (2.5%) (2018 BEQ)
Doctrine of necessary implication
• The doctrine of necessary implication is the legal basis for
the ineligibility of a confidential employee to join a union.
• What is implied in a statute is as much part thereof as that
which is expressed.
• Unionization of confidential EEs for the purpose of
collective bargaining would mean extension of the law to
persons or individuals who are supposed to act “in the
interest of the ERs”.
• There is no legal prohibition against confidential EEs who
are not performing managerial functions to form and join a
union.
Separation of unions doctrine
• RA No. 9481 amended Article 255[245] by adding the
phrase: “The rank-and-file and the supervisors' union
operating within the same establishments may join the
same federation or national union.” By reason of this
amendment, the so-called “separations of union doctrine
no longer applies.
Meaning of “right to self organization”

1) To form, join or assist labor organizations for purposes of

collective bargaining through representatives of their own
choosing; and
2) To engage in lawful concerted activities for the same
purpose or for their mutual and protection, subject to the
provisions of Article 279[264] of the LC.
NOTE:
• The right to union membership is not absolute. For
instance, it is mandated by law that no labor organization
shall knowingly admit as member or continue in
membership, any individual who belongs to a subversive
organization or who is engaged directly or indirectly in any
subversive activity.
Labor organization and union defined
• LABOR ORGANIZATION is any union or association of
EEs which exists in whole or in part for the purpose of
collective bargaining or for dealing with ERs concerning
the terms and conditions of employment.
• UNION is technically defined as a labor organization in
the private sector organized for collective bargaining and
for other legitimate purposes.
Previous Bar Question
• Our Lady of Peace Catholic School Teachers and Employees Labor
Union (OLPCS-TELU) is a legitimate labor organization composed of
vice principals, department heads, coordinators, teachers, and non-
teaching personnel of Our Lady of Peace Catholic School (OLPCS).
• OLPCS-TELU subsequently filed a petition for certification election
among the teaching and non-teaching personnel of OLPCS before
the Bureau of Labor Relations (BLR) of the Department of Labor and
Employment (DOLE). The Med-Arbiter subsequently granted the
petition and ordered the conduct of a joint certification election for
the teaching and non-teaching personnel of OLPCS.
• May OLPCS-TELU be considered a legitimate labor organization?
(5%) (2014 BEQ)
Modes of creating a labor organization

1. Independent registration
2. Chartering of local chapter/chartered local
Only a federation or national union may directly create a
local chapter/chartered local. Although trade union center is
a legitimate labor organization, it has no power to directly
create a local chapter/chartered local.
Independent registration vs. chartering
1. As to documentary requirements:
In independent registration the following are the requirements:
a) Fifty-pesos (P50.00) registration fee;
(b) The names of its officers, their addresses, the principal address of the
labor organization, the minutes of the organizational meetings and the list of
the workers who participated in such meetings;
(c) The names of all its members comprising at least twenty 20%
percent of all the employees in the bargaining unit where it seeks to
operate.
(d) If the applicant has been in existence for one or more years, copies of its
annual financial reports; and
(e) Four copies of the constitution and by-laws of the applicant union, the
minutes of its adoption or ratification and the list of the members who
participated in it. (Article 240[234],LC)
Previous Bar Question
• Rank-and-file workers from Peacock Feathers, a company with 120
employees, registered their independent labor organization with the
Department of Labor and Employment (DOLE) Regional Office.
Management countered with a petition to cancel the union’s
registration on the ground that the minutes of ratification of the union
constitution and by-laws submitted to the DOLE were fraudulent.
Specifically, management presented affidavits of ten (10) out of forty
(40) individuals named in the list of union members who participated
in the ratification, alleging that they were not present at the
supposed January 1, 2010 meeting held for the purpose. The union
argued that the stated date of the meeting should have read
“January 11, 2010,” instead of “January 1, 2010,” and that, at any
rate, the other thirty (30) union members were enough to register a
union. Decide with reason. (3%) (2010 BEQ)
 In chartering, the following are the documentary
requirements:
1. charter certificate;
2. names of the chapter's officers, their addresses, and
the principal office of the chapter; and
3. chapter's constitution and by-laws: Provided, that
where the chapter's constitution and by-laws are the same
as that of the federation or the national union, this fact shall
be indicated accordingly. (Article 241[234-A],LC)
2. As to unions covered,
Independent Registration Chartering

Independent Labor Organization Local chapter or chartered local

Federation

National Union

Industry union

Trade union centers

3. As to acquisition of legal personality
Independent Registration Chartering

Acquires full legal personality upon First Stage: Partial legal personality
issuance of a Certificate of Registration which it acquires upon the issuance to
by the BLR (Article 240[234],LC) it of a Charter Certificate by the
Federation or national union

Second Stage: Full legal personality

which is accorded to a local
chapter/chartered local only upon
submission to the DOLE of its Charter
Certificate and the documents
mentioned in Article 241[234-A], LC
4. As to right to file Petition for Certification Election
Independent Registration Chartering

Upon issuance of Certificate of Upon issuance of a Charter

Registration Certificate by a federation or a
national union both or either the
local chapter/chartered local
and/or federation or national
union can file PCE
Nature of relationship
• The relationship between the labor union and its members
is that of a principal and agent, the former being the agent
and the latter being the principal. Their relationship is
fiduciary in character.
Disaffiliation
• The right of the affiliate union to disaffiliate from its mother
federation or national union is a constitutionally
guaranteed right which may be invoked by the former at
any time. It is axiomatic that an affiliate union is a
separate and voluntary association fee to serve the
interest of all its members - consistent with the freedom of
association guaranteed in the Constitution.
Substitutionary doctrine
• Stated otherwise, the "substitutionary" doctrine only
provides that the employees cannot revoke the validly
executed collective bargaining contract with their
employer by the simple expedient of changing their
bargaining agent. And it is in the light of this that the
phrase "said new agent would have to respect said
contract" must be understood. It only means that the
employees, thru their new bargaining agent, cannot
renege on their collective bargaining contract, except of
course to negotiate with management for the shortening
thereof. (Benguet Consolidated Inc., vs. BCI Employees,
GR No. L-24711, April 30, 1968)
Bargaining Unit
• refers to a group of EEs sharing mutual interests within a
given ER unit, comprised of all or less than all of the
entire body of EEs in the ER unit or any specific
occupational or geograhical grouping within such ER unit.
Tests:
1. Community or mutuality of interest doctrine
Under this doctrine, the EEs sought to be represented by the
collective bargaining agent must have community or mutuality of interest
in terms of employment and working conditions as evinced by the type of
work they perform.
2. Globe doctrine
This principle is based on the will of the EEs.
3. Collective bargaining history doctrine
This principle puts premium to the prior collective bargaining history
and affinity of the EEs in determining the appropriate bargaining unit.
4. Employment status doctrine
The determination of the appropriate bargaining unit based on the
employment status of the EEs is considered an acceptable mode.
Bargaining Representative
1. Sole and Exclusive Bargaining Agent (SEBA)
- refers to a legitimate labor union duly certified as the sole
and exclusive bargaining representative or agent of all the EEs
in a collective bargaining unit. A labor union certified as SEBA
means that it shall remain as such during the existence of the
CBA, to the exclusion of all other labor organizations existing
and operating in the same CBU, and no petition for certification
election (PCE) questioning its majority status shall be
entertained nor shall certification election be conducted outside
of the 60-day freedom period immediately before the expiry
date of the 5-year term of the CBA.
SEBA may be determined through any of the
following modes:
1. Request for SEBA certification (which repealed and
replaced “Voluntary Recognition” as a mode of securing
SEBA status;
2. Certification election;
3. Consent election;
4. Run-off election;
5. Re-run election
Request for SEBA certification (D.O. No. 40-I-15, Series of
2015)
Where filed
Any legitimate labor organization may file a Request in
the DOLE Regional Office which issued to it its Certificate
of Registration or Certificate of Creation of Chartered Local,
as the case may be.
Documentary requirements for the request
1. The name and address of the requesting legitimate
labor organization;
2. The name and address of the company where it
operates;
3. The bargaining sought to be represented;
4. The approximate number of EEs in the bargaining unit;
and
5. The statement of the existence/non-existence of other
labor organization/CBA.
• The issuance of the SEBA Certification bars the filing of a
petition for certification election (PCE) by any labor
organization for a period of one (1) year from the date of
its issuance. It is only upon the expiration of this 1-year
period that any other legitimate labor organization may file
a PCE in the same CBU represented by the certified
SEBA for purposes of challenging the majority status of
the certified SEBA, unles a CBA between the ER and the
certified SEBA has already been executed and registered
with the Regional Office.
Certification Election
• Refers to the process of determining through secret ballot
the SEBA of the EEs in an appropriate CBU for purposes
of collective bargaining with the ER. A certification
election is conducted only upon the order of the Med-
Arbiter of the BLR.
• Parties that may file a PCE
1. Any legitimate labor organization, including:
a) a national union or federation that has issued a
charter certificate to its local chapter
b) local chapter/chartered local
c) independently registered union
2. An ER, when requested to bargain collectively in a
bargaining unit where no registered CBA exists.
• Innocent Bystander Rule
In all cases, whether the PCE is filed by an ER or a
legitimate labor organization, the ER shall not be
considered a party thereto with a concomitant right to
oppose the PCE.The ER's participation in such proceedings
shall be limited to:
(1) being notified or informed of petitions of such nature;
and
(2) submitting the list of EEs during the pre-election
conference should the Med-Arbiter act favorably on the
PCE.
Previous Bar Question
• Samahang East Gate Enterprises (SEGE) is a labor organization
composed of the rank-and-file employees of East Gate Enterprises
(EGE), the leading manufacturer of all types of gloves and aprons.
• EGE was later requested by SEGE to bargain collectively for better
terms and conditions of employment of all the rank -and-file
employees of EGE. Consequently, EGE filed a petition for
certification election before the Bureau of Labor Relations (BLR).
• During the proceedings, EGE insisted that it should participate in the
certification process. EGE reasoned that since it was the one who
filed the petition and considering that the employees concerned
were its own rankand-file employees, it should be allowed to take an
active part in the certification process.
• Is the contention of EGE proper? Explain. (5%) (2014 BEQ)
• A PCE should be filed with the DOLE Regional Office
which issued the petitioning union's certificate of
registration or certificate of creation of chartered local.
• Certification Election in Two Kinds of Establishments:
1. Unorganized:
In cases involving a PCE filed by a legitimate labor
organization in an unorganized establishment, Article
269[257] is clear that the Med-Arbiter should automatically
conduct a certification election upon the filing of PCE.
2. Organized:
In cases involving a PCE filed by a legitimate labor
organization in an organized establishment, Article 268[256]
the Med-Arbiter is required to automatically order the
conduct of CE by secret ballot as soon as the following
requisites are fully met: important
• That a PCE questioning the majority status of the
incumbent bargaining agent is filed before the Med-Arbiter
within the 60-day freedom period;
• That such PCE is verified;
• That the PCE is supported by a written consent of at least
25% of all the EEs in the CBU
• important
Previous Bar Question
• Lazaro, an engineer, organized a union in Garantisado
Construction Corporation (Garantisado) which has 200
employees. He immediately filed a Petition for Certification
Election, attaching thereto the signatures of 70 employees.
Garantisado vehemently opposed the petition, alleging that 25
signatories are probationary employees, while 5 are supervisors.
It submitted the contracts of the 25 probationary employees and
the job description of the supervisors. It argued that if 30 is
deducted from 70, it gives a balance of 40 valid signatures which
is way below the minimum number of 50 signatories needed to
meet the alleged 25% requirement. If you are the Director of
Labor Relations, will you approve the holding of a Certification
Election. Explain your answer. (5%) (2016 BEQ)
• Grounds for denial of PCE:
1. The petitioning union or national union or federation is not listed in
the DOLE's registry of legitimate labor unions or that its registration
certificate has been cancelled with finality;
2. Failure of a local chapter/chartered local or national
union/federation to submit a duly issued Charter Certificate upon filing of
the PCE;
3. In an organized establishment, the failure to submit the 25%
consent signature requirement to support the filing of the PCE;
4. Non-appearance of the petitioner for two (2) consecutive scheduled
conferences before the Med-Arbiter despite such notice;
5. Absence of ER-EE relationship between all members of the
petitioning union and the establishment where the proposed CBU is
sought to be represented; or
6. Violation of various bar rules.
Article 247 [239], LC.
Grounds for cancellation of union registration. The following shall
constitute grounds for cancellation of union registration:
(a) Misrepresentation, false statement or fraud in connection with the
adoption or ratification of the constitution and by-laws or amendments
thereto, the minutes of ratification, and the list of members who took
part in the ratification;
(b) Failure to submit the documents mentioned in the preceding
paragraph within thirty (30) days from adoption or ratification of the
constitution and by-laws or amendments thereto;
(c) Misrepresentation, false statement or fraud in connection with the
election of officers, minutes of the election of officers and the list of
voters, or failure to submit these documents together with the list of the
newly elected/appointed officers and their postal addresses within
thirty (30) days from election;
• (d) Failure to submit the annual financial report to the Bureau within thirty
(30) days after the closing of every fiscal year and misrepresentation,
false entries or fraud in the preparation of the financial report itself;
• (e) Acting as a labor contractor or engaging in the “cabo” system, or
otherwise engaging in any activity prohibited by law;
• (f) Entering into collective bargaining agreements which provide terms and
conditions of employment below minimum standard established by law;
• (g) Asking for or accepting attorney’s fees or negotiation fees from
employers;
• (h) Other than for mandatory activities under this Code, checking off
special assessments or any other fees without duly signed individual
written authorizations of the members;
• (i) Failure to submit a list of individual members to the Bureau once a year
or whenever required by the Bureau; and
• (j) Failure to comply with requirements under Articles 237 and 238.
• Contract bar rule
Under this rule, the existence of the CBA, bars the filing of a PCE. Once a CBA
duly registered and validly subsisting, no PCE or any other action should be
entertained that may disturb the administration of the duly registered existing CBA.
Exceptions:
1. During the 60-day freedom period immediately prior to the expiration of the CBA;
2. When the CBA is not registered with the BLR or any of the DOLE Regional
Offices;
3. When the CBA, although registered, contains provisions lower than the
standards fixed by law or illegal per se clauses;
4. When the documents supporting the CBA's registration are falsified, fraudulent
or tainted with misrepresentation.
5. When the CBA is not complete as it does not contain any of the mandatory
provisions;
6. When the CBA was extended during its term as when it was negotiated and
entered into prior to the 60-day freedom period;
7. When there is schism in the union resulting in an industrial dispute wherein the
CBA can no longer foster industrial peace.
2. Statutory Bar Rule
A rule that bars the filing of a PCE within a period of one
(1) year from the date of a valid conduct of a certification
election, consent, run-off, or re-run election where no
appeal on the results thereof was made. If there was such
an appeal from the order of the Med-Arbiter, the running of
the one-year period is deemed suspended until the decision
on the appeal has become final and executory.
NOTE: If no SEBA was certified, then it is called statutory
bar rule. If a SEBA was certified, then it is called certification
year bar rule.
• Statutory bar rule is not applicable to re-run or run-off
election
Thus, a re-run election should be held:
(1) In case of a tie, within 10 days after posting of notice
of re-run election;
(2) In case of failure of election, within six months from
date of declaration of failure of election.
A run-off election is required to be conducted within 10
days from the close of the election proceedings between
the labor unions receiving two (2) highest number of votes,
if there are no objections or challenges which, if sustained,
can materially alter the results.
3. Certification Year Bar Rule
The one (1) year period is reckoned:
(a) From the date the SEBA Certification is issued by
DOLE Regional Directors in cases of Request for SEBA
Certification filed in an unorganized establishment with only
one (1) legitimate labor organization; or
(b) From the date of issuance of certification as SEBA
and not from the date of the conduct of valid certification,
consent, run-off or re-run election. (Implementing Rules and
Regulations of the LC)
4. Negotiations Bar Rule
Under this rule, no PCE should be entertained from the
moment the SEBA and the ER have commenced and
sustained negotiations in good faith in accordance with
Article 261[250] of the LC within the period of one-year from
the date of a valid certification election, consent, run-off or
re-run elections or from the issuance of SEBA Certification.
5. Bargaining Deadlock Bar Rule
Under this rule, a PCE may not be entertained when a
bargaining deadlock to which an incumbent SEBA is a party
has been submitted to conciliation, compulsory or voluntary
arbitration or has become the subject of a valid notice of
strike or lockout.
Rule applies even if there is no actual deadlock, if the
circumstances are similar to a deadlock.
Double Majority Rule
The process of certification election requires the
application of the double majority rule for the following twin
purposes:
(1) To have a valid certification election; and
(2) To declare the winning union that will be certified as
SEBA.
Challenging of votes and protest
1. All EEs who are members of the appropriate CBU
three(3) months prior to the filing of the petition/request
shall be eligible to vote.
2. An EE who has been dismissed from work but has
contested the legality of the dismissal in a forum of
appropriate jurisdiction at the time of the issuance of the
order for the conduct of a certification election shall be
considered a qualified voter unless his/her dismissal was
declared valid in a final judgment at the time of the conduct
of the certification election.
3. The challenge to the voter should be made and asserted
“during the pre-election conferences and not during the
election challenge be made right before the ballot is
deposited in the ballot box.
4. The grounds for challenging a vote remains the same,
namely: (a) that there is no ER-EE relationship between the
voter and the ER; or (b) that the voter is not a member of
the appropriate bargaining unit which petitioner seeks to
represent.
5. It is the Mediator-Arbiter who has the authority to rule on
such questions of voter eligibility.
• Requisites of valid protest:
(a) Filed with the Election Officer based on “any issue
arising from the certification election's” conduct or from its
results;
(b) The protesting party should specify the grounds for
protest;
(c) The protesting party must formalize its protest with the
Mediator-Arbiter, with specific grounds, arguments and
evidence, within five (5) days after the close of the election
proceedings.
• Challenging of votes vs. protest
1. In the former, the grounds that may be invoked
concern voter eligibility, hence substantive in nature; while
in the latter, the grounds that may be asserted involve the
conduct and mechanics of the election, thus are procedural
in character.
2. The former should be raised during the pre-election
conferences but not during the election proper; while the
latter should be raised ad recorded in the minutes during
the election proper and formalized with the Med-Arbiter
within 5 days after the close of the election proceedings.
CONSENT ELECTION
• refers to the process, voluntarily and mutually agreed
upon by the contending unions, of determining through
secret ballots the SEBA of the EEs in an appropriate CBU
for purposes of collective bargaining with the ER. It is
conducted with or without the intervention of DOLE.
Run-off Election
• may only be conducted under the following elements:
1) there are three or more unions competing in a
certification or consent election;
2) none of the contending unions garnered the majority of
the valid votes cast;
3) but the total number of votes for all the contending
unions, if added is at least 50% of the number of valid votes
cast;
important
Re-run election
• Re-run election refers to an election conducted to break a tie between
contending unions, including between “no union” and one of the unions. It
shall likewise refer to an election conducted after a failure of election has
been declared by the election officer and/or affirmed by the Med-Arbiter.
• Grounds:
1. break a tie;
2. cure a failure of election
3. When the certification, consent or run-off election has been invalidated
or nullified due to certain serious irregularities that have been committedd
during the conduct thereof, such as, inter alia, disenfranchisement of the
voters, lack of secrecy in the voting, fraud or bribery or acts of terrorism,
force, threat and intimidation employed by any of the contending unions or
the ER.
Previous Bar Question
Nayon Federation issued a charter certificate creating a rank-and-file
Neuman Employees Union. On the same day, New Neuman Employees
Union filed a petition for certification election with the Department of
Labor and Employment (DOLE) Regional Office, attaching the
appropriate charter certificate.
a) The employer, Neuman Corporation, filed a motion to dismiss the
petition for lack of legal personality on the part of the petitioner union.
Should the motion be granted? (2.5%)
b) The employer likewise filed a petition for cancellation of union
registration against New Neuman Employees Union, alleging that Nayon
Federation already had a chartered local rank-and-file union, Neuman
Employees Union, pertaining to the same bargaining unit within the
establishment. Should the petition for cancellation prosper? (2.5%) (2017
BEQ)
Previous Bar Question
• Liwayway Glass had 600 rank-and-file employees. Three rival unions – A, B, and
C ‒ participated in the certification elections ordered by the Med-Arbiter. 500
employees voted. The unions obtained the following votes: A-200; B-150; C-50;
90 employees voted "no union"; and 10 were segregated votes. Out of the
segregated votes, four (4) were cast by probationary employees and six (6) were
cast by dismissed employees whose respective cases are still on appeal. (10%)
• (A) Should the votes of the probationary and dismissed employees be counted
in the total votes cast for the purpose of determining the winning labor union?
• (B) Was there a valid election?
• (C) Should Union A be declared the winner?
• (D) Suppose the election is declared invalid, which of the contending unions
should represent the rank-and-file employees?
• (E) Suppose that in the election, the unions obtained the following votes: A-250;
B-150; C-50; 40 voted "no union"; and 10 were segregated votes. Should Union
A be certified as the bargaining representative? (2014 BEQ)
Previous Bar Question
• Lazaro, an engineer, organized a union in Garantisado
Construction Corporation (Garantisado) which has 200
employees. He immediately filed a Petition for Certification
Election, attaching thereto the signatures of 70 employees.
Garantisado vehemently opposed the petition, alleging that 25
signatories are probationary employees, while 5 are supervisors.
It submitted the contracts of the 25 probationary employees and
the job description of the supervisors. It argued that if 30 is
deducted from 70, it gives a balance of 40 valid signatures which
is way below the minimum number of 50 signatories needed to
meet the alleged 25% requirement. If you are the Director of
Labor Relations, will you approve the holding of a Certification
Election. Explain your answer. (5%) (2015 BEQ)
Previous Bar Question
• The modes of determining the exclusive bargaining agent
of the employees in a business are: (a) voluntary
recognition; (b) certification election; and (c) consent
election. Explain how they differ from one another. (4%)
(2017 BEQ)
Previous Bar Question
A certification election was conducted in Nation Manufacturing Corporation,
whereby 55% of eligible voters in the bargaining unit cast their votes. The results
were as follows:
• Union Nana : 45 votes
• Union Nada: 40 votes
• Union Nara : 30 votes
• No Union : 80 votes
• Union Nana moved to be declared as the winner of the certification election.
a) Can Union Nana be declared as the winner? (2.5%)
b) Assume that the eligibility of 30 voters was challenged during the pre-
election conference. The ballots of the 30 challenged voters were placed inside an
envelope sealed by the DOLE Election Officer. Considering the said envelope
remains sealed, what should be the next course of action with respect to the said
challenged votes? (2.5%) (2018 BEQ)
Rights of Labor Organizations (Article 251[242], LC)
• act as the representative of its members for the purpose
of collective bargaining;
• be certified as the SEBA;
• be furnished by the ER, upon written request, with its
annual audited financial statements, including the balance
sheet and the profit and loss statement, within 30
calendar days from receipt of request, after the union has
been duly recognized by the ER or certified as the SEBA
or within 60 calendar days before the expiration of the
existing CBA or during the collective bargaining
negotiation;
• own property, real or personal, for the use and benefit of
the labor organization and its members;
• sue and be sued in its registered name; and
• undertake all other activities designed to benefit the
organization and its members, including cooperative,
housing, welfare and other projects not contrary to law.
Check-off, assessments and agency fees
• Check-off means a method of deducting by the ER from the
EE's pay at prescribed periods, any amount due for fees, fines
or assessments.
• Right to check-off is available only to the SEBA.
• Kinds:
(1) collection of union dues, special assessments and fees by
the SEBA from its members (requires written authorization); and
(2) collection of agency fees from non-members of SEBA but
covered by and included in the CBU who accept the benefits
provided in the CBA (written authorization is not required).
Assessments: Requisites
• Authorization by a written resolution of the majority of all
the members at a general membership meeting duly
called for the purpose;
• Secretary's record of the minutes of said meeting; and
• Individual written authorizations for check-off duly signed
by the EEs concerned.
• important
Previous Bar Question
• Pablo works as a driver at the National Tire Company (NTC). He is a member
of the Malayang Samahan ng Manggagawa sa NTC, the exclusive rank-and-
file collective bargaining representative in the company. The union has a CBA
with NTC which contains a union security and a check-off clause. The union
security clause contains a maintenance of membership provision that
requires all members of the bargaining unit to maintain their membership in
good standing with the union during the term of the CBA under pain of
dismissal. The check-off clause on the other hand authorizes the company to
deduct from union members' salaries defined amounts of union dues and
other fees. Pablo refused to issue an authorization to the company for the
check-off of his dues, maintaining that he will personally remit his dues to the
union.
• (B) Can the union charge Pablo with disloyalty for refusing to allow the check
off of his union dues and, on this basis, ask the company to dismiss him from
employment? (4%) (2013 BEQ)
Previous Bar Question
• Distinguish between "union dues" and "agency fees."
(2%) (2015 BEQ)
Agency fees
• Limitation:
a) reasonable in amount; and
b) equivalent to the dues and other fees paid by
members of SEBA
Previous Bar Question
• A is employed by XYZ Company where XYZ Employees
Union (XYZ-EU) is the recognized exclusive bargaining
agent. Although A is a member of rival union XYR-MU, he
receives the benefits under the CBA that XYZ-EU had
negotiated with the company.
• XYZ-EU assessed A a fee equivalent to the dues and
other fees paid by its members but A insists that he has
no obligation to pay said dues and fees because he is not
a member of XYZ–EU and he has not issued an
authorization to allow the collection. Explain whether his
claim is meritorious. (3%)(2010 BEQ)
Collective bargaining
• Duty to bargain collectively means the performance of a
mutual obligation to meet 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.
• The duty to bargain collectively may well constitute ULP if
violated by an ER, under Article 259(g)[248(g)], or by
labor organization, under Article 260(c)[249(c)] of the
Labor Code.
Duty to bargain collectively in the absence of CBA
• First, in accordance with any agreement or voluntary
arrangement providing for a more expeditious manner of
collective Labor Code, referring to Article 261[250] thereof
which lays down the procedure in collective bargaining.
Duty to bargain collectively when there exists a CBA
• Under the Labor Code, where there is a CBA, the duty to
bargain collectively shall 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 60 days prior
to its expiration date.
• Freedom period is the last 60 days period of the 5-year
lifetime of the CBA immediately preceding its expiration
date.
Automatic Renewal Clause
• Pending the renewal of the CBA and while they are
negotiating its renewal, the parties are bound to keep the
status quo and to treat the terms and conditions
embodied therein still in full force and effect not only
during the 60-day freedom period but until a new
agreement is negotiated and ultimately concluded and
reached by the parties
Previous Bar Question
• ABC company and U labor union have been negotiating
for a new Collective Bargaining Agreement (CBA) but
failed to agree on certain economic provisions of the
existing agreement. In the meantime, the existing CBA
expired. The company thereafter refused to pay the
employees their midyear bonus, saying that the CBA
which provided for the grant of midyear bonus to all
company employees had already expired. Are the
employees entitled to be paid their midyear bonus?
Explain your answer. (3%) (2010 BEQ)
Kiok Loy Doctrine
• When an ER refused to submit any counter-proposal to
the CBA proposed by its EEs' certified CBA, the former
had thereby lost its right to bargain the terms and
conditions of the CBA. Consequently, all the terms and
conditionss of the CBA as proposed by the SEBA are
deemed approved and accepted lock, stock and barrel
(LSB) by the erring ER (Kiok Loy vs. NLRC, GR No. L-
54334, Jan. 22, 1986)
Some principles:
• If unchallenged during the 60-day freedom period, the
majority status of the existing SEBA is deemed
uninterrupted and continuing and thus should be
respected by the ER.
• All the terms and conditions of the CBA are deemed
automatically renewed.
Equity of the Incumbent
• Article 249[240]. Equity of the incumbent. All existing
federations and national unions which meet the
qualifications of a legitimate labor organization and none
of the grounds for cancellation shall continue to maintain
their existing affiliates regardless of the nature of the
industry and the location of the affiliates. [Incumbent
affiliates of existing federations or national unions may
disaffiliate only for the purpose of joining a federation or
national union in the industry or region in which it properly
belongs or for the purpose of operating as an independent
labor group.] important
Previous Bar Question
• What is the rule on the "equity of the incumbent"? (2%)
(2015 BEQ)
Collective Bargaining Agreement (CBA)
• refers to the negotiated contract between a duly certified
SEBA of workers and the ER incorporating the agreement
reached after negotiations with respect to wages, hours of
work, and all other terms and conditions of employment in
the appropriate bargaining unit, including mandatory
provisions for grievances and arbitratio machineries.
Automatic incorporation clause
• It is well-settled that existing laws and pertinent
jurisprudence automatically form part of a valid contract.
There is therefore no need for the parties to copy or
reiterate them in the CBA nor to make any express
reference thereto. They are all presumed to be part of the
contract.
Standard stipulations in a CBA
• Non-economic or political (coverage or scope of
agreement, exclusions, security of tenure, management
rights and prerogatives, company rules and regulations,
discipline of EEs, union dues, etc); and
• Economic or non-political (wage increases, premiums for
work on rest days, etc)
Mandatory Provisions of CBA
A. proposals concerning terms and conditions of
employment
• examples:
1) wages (all forms of wages)
2) hours of work
3) meal time
4) time breaks
5) overtime and other premiums
6) commissions
7) shift differentials, etc.
B. Drug-free workplace policy (RA No. 9165 and its IRR)
Drug-free workplace policies and programs should be
included as part of the CBA.
C. HIV/AIDS education and information programs (1999
Rules and Regulations implementing RA No. 8504)
The quality of the HIV/AIDS education and information
program shall be under the CBA.
EEs entitled to CBA benefits
• members of SEBA
• non-SEBA members but are covered by the CBU
• members of the minority union who paid agency fees to
SEBA; and
• new EEs hired after the conclusion of the CBA and during
its effectivity or even after its expiration.
Are EEs excluded from the CBU like confidential and
managerial EEs or supervisory EEs in the case of
rank-and-file CBU or vice versa, entitled to the
benefits flowing from the CBA?
• No, except:
a) when the CBA benefits are granted to managerial EEs by
reason of company practice or company policy;
b) when the adjustments are made to avoid distortion in the
levels of wages or benefits