LABOR RELATIONS

CERTIFICATION ELECTION and REPRESENTATION ISSUES

Exclusive Bargaining Representative/Agent refers to a legitimate labor union duly recognized or certified as the sole and exclusive bargaining representative or agent of all the employees in a bargaining unit. (DO 40-03) Bargaining Representative/Agent a legitimate labor organization or any duly authorized officer or agent of such organization whether or not employed by the employer. (Implementing Rules) It shall remain as such during the existence of the CBA, to the exclusion of other labor organization, and no petition questioning its majority status shall be entertained nor shall certification election be conducted outside the 60-day freedom period immediately before the expiry date of the 5-year term of the CBA. Once certified, what is represented are not only its members but also its non-members who are included in the bargaining unit. But it does not deprive any employee to exercise his right to present grievances to their employer, with or without intervention of the bargaining union. Bargaining Unit refers to a group of employees sharing mutual interests within a given employer unit, comprised of all or less than all of the entire body of employees in the employer unit or any specific occupational or geographical grouping within such employer unit. It may also refer to the group or cluster of jobs or positions within the employers establishment that supports the labor organization which is applying for registration. A bargaining unit must involve a grouping who has substantial, mutual interest in wages, working hours, working conditions, and other subjects of collective bargaining. The basic test of a bargaining units acceptability is whether or not it is fundamentally the combination which will best assure to all employees the exercise of their bargaining rights At least twenty percent (20%) of the employees in the appropriate bargaining unit which the applicant union seeks to represent must sign its application for registration. But there is no minimum or maximum number of employees required to constitute a bargaining unit. In each bargaining unit, there must be only one exclusive bargaining agent. The bargaining agent is chosen through certification election. Whichever is certified as the EBR, it shall have the authority to represent the whole bargaining unit, with the exclusion of all other labor organization existing in the bargaining unit. Principles in determining an appropriate bargaining unit: 1. Substantial mutual interest principle

1 The SC held that the employees in the administrative, sales and dispensary departments can form their own bargaining unit separate and distinct from those involved in the production and maintenance. They have a community of interest which justifies their formation or existence as a separate appropriate collective bargaining unit. The existing CBA covers only those in the production and maintenance. SMC SUPERVISORS vs. LAGUESMA Petitioner filed a PCE among the supervisors and exempt employees of three SMC Magnolia Poultry Products Plants as one bargaining unit, which was granted by the MedArbiter. SMC contested that the Med-Arbiter erred in grouping together all 3 separate plants into one bargaining unit, and in including supervisory levels 3 and above whose positions are confidential in nature. The employees in the instant case have community or mutuality of interest. Although they belong to three different plants, they perform work of the same nature, receive the same wages and compensation, and most importantly, share a common stake in concerted activities. Geographical location can be completely disregarded if the communal or mutual interests of the employees are not sacrificed. The distance among the three plants is not productive of insurmountable difficulties in the administration of union affairs. Neither are there regional differences that are likely to impede the operations of a single bargaining representative. 2. Globe Principle

Under this principle, the determining factor to consider a bargaining unit is the desire of the workers themselves. It is the will of the employees that determines the configuration of the bargaining unit, provided there are several crafts combined into a general bargaining unit and there is one dominant craft that wants to secede and become a separate bargaining unit. If there is none, this principle cannot be applied. 3. Collective bargaining history principle

If you file a petition for certification election in an organized establishment, it means that it already had a previous CBA, and thus, there was already an exclusive bargaining agent in the past. The prior collective bargaining history and affinity of the employees is the determining factor. However, the existence of a previous CBA is neither decisive nor conclusive in the determination of what constitutes an appropriate bargaining unit. The reason for this is when there is a substantially compelling supervening fact, such as when the union decides that several bargaining units shall become only one. PHILIPS INDUSTRIAL vs. NLRC Petitioner had a total of 6 CBAs with PEO-FFW. In the 6th CBA, it was agreed upon that the subject of inclusion or exclusion of service engineers, sales personnel and confidential employees in the coverage of the bargaining unit would be submitted for arbitration. The SC ruled that said employees are not qualified to be part of the existing bargaining unit based on the history of the CBA. All these employees, with the exception of the service engineers and the sales force personnel, are confidential employees. The 5 previous CBAs explicitly considered them as confidential employees. The Globe Doctrine also finds no application. This doctrine applies only in instances of evenly balanced claims by competitive groups for the right to be established as the bargaining unit, which do not obtain in this case. NAFTU vs. MAINIT LUMBER On 1985, MALDECOWU-ULGWP filed a PCE, which was granted by the Med-Arbiter. NAFTU appealed on the ground that MALDECO was composed of 2 bargaining units, the Sawmill and the Logging Division, but both the petition and decision treated these separate units only as one. From 1979 to 1985, the Ministry of Labor recognized the existence of the two separate bargaining units at MALDECO. While the existence of bargaining history is a factor that may

The employees sought to be represented must have substantial mutual interest in terms of employment and working conditions as evinced by the type of work performed. It is characterized by similarity of employment status, same duties and responsibilities, and substantially similar compensation and working conditions. ALHAMBRA CIGAR vs. ALHAMBRA EMPLOYEE'S ASSOCIATION Alhambra Employees' Association filed a petition praying that it be certified as the sole and exclusive bargaining agent for all the employees in the administrative, sales and dispensary departments. Alhambra Cigar and Kapisanan Ng Manggagawa sa Alhambra opposed the petition on the ground that there was an existing CBA between them, which constitutes a bar to the instant certification proceeding.

be reckoned with in determining the appropriate bargaining unit, the same is not decisive or conclusive. Other factors must be considered. The test of grouping is community or mutuality of interests. Certainly, there is a mutuality of interest among the employees of the Sawmill and Logging Divisions. One group needs the other in the same way that the company needs them both. There may be difference as to the nature of their individual assignments but the distinctions are not enough to warrant the formation of a separate bargaining unit. 4. Employment status principle

2 there are unions in existence for as long as not one of them is duly recognized or certified as the sole bargaining agent of the employees in the bargaining unit. Example: In a company, there is already a union for its rank-and file, regular production workers. There is also a union for its rank-and file, regular, monthly paid white collar workers. But, there is still no union for its supervisors. A petition for certification election is filed among the supervisors. Is that a petition from an unorganized establishment or organized establishment? Unorganized because the supervisors still do not have an exclusive bargaining agent and a CBA. It is not the establishment that should be unorganized, but the bargaining unit. Legitimate labor organizations which may file a petition to question the majority status of the incumbent bargaining agent: 1. Independent union; 2. National union or federation which issued a charter certificate to a local participating in the election; 3. Local chapter issued with a charter certificate by the national union or federation Note: The local created is vested with the legal personality to do only one thing, which is to file a petition for certification election. It is not entitled to other rights and privileges of a legitimate labor organization except when it subsequently becomes an independent union MODES OF DETERMINING THE EXCLUSIVE BARGAINING AGENT I. VOLUNTARY RECOGNITION

The determination is based on the employment status of the employee. Permanent, casual, seasonal, or probationary employees have no commonality of interest. For example, regular employees and probationary employees are treated differently by management. The probationary employees, although the nature of their work is similar with regular employees, may ask or oppose something from the employer, which is not the concern of regular employees. Thus, there is no common interest. DEMOCRATIC LABOR ASSOCIATION vs. CEBU STEVEDORING Cebu Stevedoring employs two sets of workers, namely, the regular and permanent on one hand, and the daily or casual on the other. The first set of laborers work continuously and are paid either semi-annually, monthly or weekly, are given benefits for every year of service. The casual laborers are the stevedores who work solely on the loading and unloading of cargoes, are paid daily, are laid off from time to time, and work as they please depending on the arrival of foreign vessels. As there were four labor unions composed of employees and laborers working in the same company with diverse and conflicting interest and there was no collective bargaining agency to represent them, there is a need for certification election for each separate set of workers. Distinction between bargaining unit and exclusive bargaining agent As to its nature: The Bargaining Unit is the principal. The Exclusive Bargaining Agent is the agent. The real-party-in-interest is the Bargaining Unit. The Bargaining unit is the beneficiary, who enjoys all the benefits of the CBA. The agent is the negotiator, who negotiates what should appear in the CBA. The Bargaining unit is also the obligor since it is the beneficiary. The agent is the adjuster. It is the union who will adjust grievance with management. As to the determination: The bargaining unit is determined upon proposal by the union, agreed upon by the management, and finally, given the imprimatur by the state by issuing an order for the conduct of the certification election. On the other hand, the agent is chosen solely by the employees of the bargaining unit. The state or management do not dictate. It is solely the business of the bargaining unit. An employee belongs to a bargaining unit, but he is not a member thereof because there is no membership in a bargaining unit. Thus, an employee is a member of the union or Exclusive Bargaining Agent. When you a file a petition to be recognized as the exclusive bargaining agent, it can either come from an organized establishment or an unorganized establishment. Organized Establishment refers to an enterprise where there exists a recognized or certified sole and exclusive bargaining agent. The enterprise referred here is the bargaining unit being represented. Unorganized Establishment an enterprise where there is no recognized or certified collective bargaining union or agent. An enterprise may still be considered an unorganized establishment even if

Voluntary Recognition refers to the process by which a legitimate labor union is recognized by the employer as the exclusive bargaining representative or agent in a bargaining unit. Within 30 days from such recognition, the employer and union shall submit a notice of voluntary recognition with the Regional Office which issued the recognized labor union's certificate of registration or, in the case of local chapter, where the charter certificate issued by the national union and other documents were filed. Where the notice of voluntary recognition is sufficient in form, number and substance and where there is no other registered labor union operating within the bargaining unit concerned, the Regional Office shall, within 10 days from receipt of the notice, record the fact of voluntary recognition in its roster of legitimate labor unions and notify the labor union concerned. From the time of recording, the recognized labor union shall enjoy the rights, privileges and obligations of an existing bargaining agent of all the employees in the bargaining unit. Entry of voluntary recognition shall bar the filing of a petition for certification election by any labor organization for a period of one year from the date of entry of voluntary recognition. Upon expiration of this one-year period, any legitimate labor organization may file a PCE in the same bargaining unit represented by the voluntarily recognized union, unless a CBA between the employer and voluntarily recognized labor union was executed and registered Note: The voluntary recognition by the employer while a petition for certification election filed by another union is pending is not valid. II. CERTIFICATION ELECTION

Certification Election refers to the process of determining through secret ballot the sole and exclusive representative of the employees in an appropriate bargaining unit for purposes of collective bargaining or negotiation. It is ordered by the Department.

However, what is really sought to be determined first and foremost in a certification election is whether or not the employees want representation, and if so, who their exclusive agent will be. When you file a PCE, the first issue to be determined is the appropriateness of the bargaining unit. Is the bargaining unit appropriate? Once the appropriateness of the bargaining unit has been determined, there will be what is called the exclusion and inclusion proceedings. A certification election is not a litigation proceeding, but a mere investigation of a non-adversary fact-finding character in which the DOLE plays a part of a disinterested investigator seeking merely to ascertain the desires of employees as to the matter of representation. Absolute majority is not required in order for a union to be validly certified as the exclusive bargaining agent. Majority of the ballots case would be sufficient, even if only a small proportion of the eligible voters participated in the election. Direct certification not allowed because the conduct of certification election is still necessary in order to arrive in a manner definitive and certain concerning the choice of the labor organization to represent the workers in the bargaining unit. CENECO vs. DOLE SECRETARY CURE and CENECO had a CBA valid for 3 years. CURE wrote CENECO proposing that negotiations be conducted for a new agreement. CENECO denied CURE's request on the ground that employees who at the same time are members of an electric cooperative are not entitled to form or join a union. CURE filed a petition for direct recognition. The SC held that direct certification is not proper as a method of selecting the exclusive bargaining agent of the workers. Where a union has filed a petition for certification election, the mere fact that no opposition is made does not warrant a direct certification. It is not alone sufficient that a union has the support of the majority. What is equally important is that everyone be given a democratic space in the bargaining unit concerned. The most effective way of determining which labor organization can truly represent the working force is by certification election. Petition for certification election in unorganized establishment (Article 257) In any establishment where there is no certified bargaining agent, a certification election shall automatically be conducted upon the filing of a petition by any legitimate labor organization. This is what we call automatic certification election. Furthermore, it is still the policy to automatically grant a petition for certification election from an unorganized establishment even if there is no signature support. But the petitioning union must still submit other legal requirements. In the case of a local chapter, although it is considered a legitimate labor organization, it is merely an agent for the local organization. The local chapter, as principal, should also be a legitimate labor organization in good standing. The federation's status alone would not suffice the requirement. However, such rule will not apply if the local is an independently registered union. Even if such local is not able to prove its affiliation with the federation or national union, it has legal personality to file said petition as an independent union. ME-SHURN vs. ME-SHURN WORKERS UNION The regular rank and file employees of Me-Shurn organized a union. The union had a pending application for registration. Ten days later, Me-Shurn started placing on forced leave all the rank and file employees who were members of the unions bargaining unit. The union then filed a PCE. Instead of filing an answer, Me-Shurn filed a comment stating that it would temporarily lay off employees and cease operations, on account of its alleged inability to meet the export quota required by the Board of Investment. The holding of a certification election was ordered. The local union filed a Notice of Strike on the ground of ULP. Management imposed a precondition for the resumption of operation and the rehiring of laid off

3 workers. They allegedly required the remaining union officers to sign an Agreement containing a guarantee that upon their return to work, no union would be organized and after signing of such agreement, the company resumes operation. The SC held that the real reason behind the shutdown was the formation of the union. If the basic inspiration for the act of the employer is derived from the activities of the union, the formers assignment of another reason, no matter how seemingly valid, is unavailing. Likewise, in an unorganized establishment, only a legitimate union may file a PCE. Thus, the union has the personality to sue in its own name in order to challenge the ULP. PROGRESSIVE DEVELOPMENT vs. LAGUESMA NLM-Katipunan filed a PCE. Petitioners filed a motion to dismiss alleging fraud, falsification and misrepresentation, alleged that (a) respondent union registration was tainted with false, forged, double or multiple signatures of those who allegedly took part in the ratification; (b) while the application for registration of the charter was supposed to have been approved in the organizational meeting held in 1993, the charter certificate issued by the federation KATIPUNAN was dated 1 day prior to the formation of the chapter, thus, there were serious falsities in the dates of the issuance of the charter certificate and the organization meeting of the alleged chapter. While Article 257 directs the automatic conduct of a certification election in an unorganized establishment, it also requires that the PCE must be filed by a legitimate labor organization. The employer naturally needs assurance that the union it is dealing with is a bona-fide organization, one which has not submitted false statements or misrepresentations to the Bureau. Strict compliance with what the law provides as requisites for local or chapter formation are preventive measures against the commission of fraud. Petition for certification election in organized establishment (Article 256) Representation issued in an organized establishment requires a signature support of 25% of all the employees in the bargaining unit. Requisites for automatic certification election in an organized establishment: 1. A petition questioning the majority status of the incumbent bargaining agent is filed before the DOLE within the 60-day freedom period; 2. The petition must be verified; and 3. The petition is supported by the written consent of at least 25% of all the employees in the bargaining unit. Note: Even if the 25% is not complied with, the Med-Arbiter is still empowered to order the conduct of certification election for the purpose of determining which of the contending unions should be chosen as exclusive bargaining agent. CALIFORNIA MANUFACTURING vs. LAGUESMA FFW-CALMASUCO filed a PCE. CMC alleged that the petition for the holding of a certification election should be denied as it is not supported by the required 25% of all its supervisors and that a big number of the supposed signatories to the petition are not actually supervisors. FFWCALMASUCO in its reply maintained that under the law, when there is no existing bargaining unit yet at the time of the filing of the PCE, the 25% rule on the signatories does not apply. The SC held that the PCE should not be denied. Even conceding that the statutory requirement of 30% (now 25%) of the labor force asking for a certification election had not been strictly complied with, the Director (now the Med-Arbiter) is still empowered to order that it be held precisely for the purpose of ascertaining which of the contending labor organizations shall be the exclusive collective bargaining agent. NATIONAL MINES vs. SEC. OF LABOR Facts: NAMAWU-MIF and FFW-SMQCC are local chapters of labor federations. NAMAWU-MIF is the exclusive bargaining agent of all the

rank and file workers of QCC. 38 days before the expiration of the CBA, FFW-SMQCC, through Reynito de Pedro, filed a PCE. NAMAWU-MIF moved to dismiss the petition on the grounds that: (a) the required 25% support of the employees had not been met; (b) the petition was not verified as required by law; and (c) Reynito de Pedro, who was also the president of NAMAWU-MIF, had no personality to file the petition on behalf of FFW-SMQCC. FFW-SMQCC, filed a second petition for certification election, this time signed and verified by De Pedro. Held: The PCE was verified as required by law. (1) There were 141 supporting signatures out of the 300 employees belonging to the appropriate bargaining unit. Granting that 36 signatures were falsified and 13 was disowned, this leaves 92 undisputed signatures which is definitely more than 75 i.e., 25% of the total number of company employees required by law to support a PCE. (2) Verification of a pleading is a formal, not jurisdictional requisite. Even if verification is lacking and the pleading is formally defective, the courts may dispense with the requirement in the interest of justice. Generally, technical and rigid rules of procedure are not binding in labor cases; and this rule is specifically applied in certification election proceedings, which are non-litigious but merely investigative and nonadversarial in character. (3) Although Reynito de Pedro was the duly elected president of NAMAWU-MIF, he had disaffiliated himself therefrom and joined FFWSMQCC before the PCE was filed. Who may file a PCE: 1. Legitimate labor organization (whether from organized and unorganized establishment) 2. Employer, when requested by a labor organization to bargain collectively and its majority status is in doubt. Form and contents of PCE: Sec. 4, Rule VIII, IRR When to file PCE: General rule: In the absence of a duly registered CBA, a PCE may be filed at any time. Exceptions: 1. Certification year-bar rule A PCE may not be filed within one year (1) from the date the voluntary recognition has been entered; or (2) from the date a valid certification, consent or run-off election has been conducted within the bargaining unit. Where an appeal has been filed from the order of the Med-Arbiter certifying the results of the election, the running of the one year period shall be suspended until the decision on the appeal has become final and executory. This rule applies to both organized and unorganized. The one year period shall begin from the date the result of the certification election is announced. This applies even if the election results to no union. 2. Bargaining dead-lock rule No PCE may be filed: (1) When the duly certified union has commenced and sustained negotiations in good faith with the employer in accordance with Article 250 of the Labor Code within the one year period referred to in the immediately preceding paragraph; (2) When a bargaining deadlock to which a certified bargaining agent is a party had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout In this case, the exclusive bargaining agent must take actions to compel the employer to bargain collectively. Charging the employer with unfair labor practice and conducting a strike to protest the employers refusal to bargain is also a bar to the filing of a PCE.

4 CAPITOL MEDICAL vs. LAGUESMA CMCEA filed a PCE. After the election, said union was held as the exclusive bargaining representative. It submitted its economic proposal to CMC for a CBA. However, CMC refused to negotiate and instead challenged the unions legal personality. The union then filed a notice of strike against CMC for ULP. Meanwhile, CMC-ACE-UFSW filed a PCE alleging that a certification election can now be conducted as more that 1 year have lapsed since the last certification election was held and that no CBA was executed before. The SC held that there was no bargaining deadlock between CMC and CMCEA. While it is true that one year had lapsed since the time of declaration of a final certification result, and that there is no bargaining deadlock, the delay in the forging of the CBA could not be attributed to CMCEAs fault. Such can be attributed to CMC as the proposals of the union were never answered by CMC. What happened in this case is worse than a bargaining deadlock for CMC employed all legal means to block the certification of CMCEA as the bargaining agent. KAMPIL-KATIPUNAN vs. TRAJANO NAFLU was declared the exclusive bargaining representative of the employees of VIRON. More than four years thereafter, another union, KAMPIL Katipunan, filed a PCE. The petition allegedly counted with the support of more than 30% of the workers at VIRON. NAFLU opposed the petition. Med-Arbiter ordered a certification election. The SC held that before the filing of the PCE, there was no such bargaining deadlock. NAFLU's attempts to bring VIRON to the negotiation table had been unsuccessful. There is no proof that it had taken any action to legally coerce VIRON to comply with its statutory duty to bargain collectively. It could have charged VIRON with unfair labor practice, but it did not. It could have gone on a legitimate strike in protest against VIRON's refusal to bargain collectively and compel it to do so, but it did not. 3. Contract-bar rule A PCE may not be filed when a CBA between the employer and a duly recognized or certified bargaining agent has been registered with the BLR in accordance with Article 231 of the Labor Code. Where such CBA is registered, the petition may be filed only within 60 days prior to its expiry. After such period and there is no new CBA, this rule shall apply again. The employer shall continue to recognize the majority status of the incumbent bargaining agent where no PCE challenging such majority status is filed by another union. However, the contract-bar rule shall not apply in a case where there is an automatic renewal provision in the CBA but prior to the date when such automatic renewal became effective, the employer seasonably filed a manifestation of its intention to terminate the said agreement if and when it is established that the bargaining agent does not represent anymore the majority of the workers in the bargaining unit. ASSOCIATED LABOR UNIONS VS CALLEJA Facts: ALU informed GAW that majority of the latter's employees have authorized ALU to be their exclusive bargaining representative, and requested GAW for a conference for the execution of an initial CBA. GAW responded indicating its recognition of ALU as the sole and exclusive bargaining agent for the majority of its employees. ALU and GAW signed and executed the CBA. In the meantime, SPFL together with NAMGAW undertook a strike after it failed to get the management of GAW to sit for a conference respecting its demands. In the meantime, the CBA executed by ALU and GAW was duly filed. MedArbiter ruled for the holding of a certification election. Held: SC held that the CBA is defective. The only express recognition of petitioner as said employees' bargaining representative is in the CBA entered into two days thereafter. Evidently, there was precipitate haste on the part of GAW in recognizing ALU, which recognition appears to have been based on its self-serving claim that it had the support of the majority of the employees in the bargaining unit. Additionally, basic to the contract bar rule is the proposition that the delay of the right to

select representatives can be justified only where stability is deemed paramount. Excepted from the contract which do not foster industrial stability, such as contracts where the identity of the representative is in doubt. Any stability derived from such contracts must be subordinated to the employees' freedom of choice because it does not establish the type of industrial peace contemplated by law. CHRIS GARMENTS CORPORATION vs. STO. TOMAS CGWU-PTGWO filed a PCE. The union sought to represent employees not covered by the employer's CBA with SMCGC-SUPER. Chris Garments moved to dismiss the PCE because it has an existing CBA with SMCGC-SUPER, which bars any PCE prior to the 60-day freedom period. The MedArbiter dismissed the PCE, ruling that there was no employer-employee relationship. Thereafter, the union filed a second and third PCE. But the Secretary subsequently granted the third PCE. The SC held that the Secretary only dismissed the first petition as it was filed outside the 60day freedom period. At that time therefore, the union has no cause of action since they are not yet legally allowed to challenge openly and formally the status of SMCGC-SUPER as the exclusive bargaining representative. Such dismissal, however, has no bearing in the instant case since the third petition for certification election was filed well within the 60-day freedom period. Otherwise stated, there is no identity of causes of action to speak of since in the first petition, the union has no cause of action while in the third, a cause of action already exists for the union as they are now legally allowed to challenge the status of SMCGC-SUPER as exclusive bargaining representative. Suppose the CBA is not certified because it is not registered, can it bar a petition for certification election? It depends. If it is a CBA that only affords statutory benefits of the Labor Standards, it does not bar a petition for certification election because the benefits are already entitled under the law. But if the CBA, though not registered in DOLE, grants substantial benefits, and it has been doing so for a considerable period of time, the unregistered CBA bars a certification election. Effect of CBA renewal or registration before the 60-day period the 60-day freedom period based on the original CBA should not be affected by any amendment, extension, or renewal of the CBA for purposes of certification election. With a pending PCE, any agreement entered in to by the employer with the incumbent union within the 60day period is burdened with the risk that such labor organization may not be chosen thereafter as the bargaining agent. Thus, the filing of PCE shall not be affected by a CBA registered before or during the last 60 days of the subsisting agreement or pendency of a PCE. Example: There is a CBA registered. 60 days before the expiration of the CBA, the union presents management with bargaining proposals for renewing the CBA. Management receives the proposals and after a few sessions with the union, they came into a new agreement. Before the expiration of the old CBA, another union files for a PCE. Management moves to dismiss on the ground that there is a new CBA waiting to be implemented, therefore, it bars the PCE. Is it correct to dismiss the PCE because of the new CBA? NO. The new CBA is premature. The old CBA does not even bar because the last 60 days of the CBA is the freedom period. When management enters into a new negotiation for the CBA during the 60-day freedom period, it does so at its own risk because whatever agreement is entered into does not bar a PCE if it is filed within the 60-day freedom period. And if it results in the election of a new exclusive bargaining agent, it will oust the old, and the CBA entered into with the old incumbent union will be set aside because the new representative would want to enter with a different CBA with management. Thus, a premature CBA does not bar a PCE. Where to file: DOLE Regional Office which issued the petitioning union's certificate of registration or, in the case of a local chapter, where the chapter certificate and the documents required are submitted.

5 CRUZVALE vs. LAGUESMA UFW filed a PCE. Cruzvale filed its comment. It sought the denial of the petition on the ground that DOLE has no jurisdiction over the petition since Cruzvale's place of business is located at Cubao, which is outside the jurisdiction of the said Regional Office. The word "jurisdiction" refers to the venue where the PCE must be filed. Unlike jurisdiction, which implies the power of the court to decide a case, venue merely refers to the place where the action shall be brought. The worker, being the economically-disadvantaged party whether as complainant, petitioner or respondent, as the case may be, the nearest governmental machinery to settle a labor dispute must be placed at his immediate disposal and the employer must in no case be allowed a choice in favor of another competent agency sitting in another place to the inconvenience of the worker. Forced intervenor the incumbent bargaining agent, which is automatically one of the choices in the certification election. Motion for Intervention for an organized establishment any legitimate labor union other than the incumbent bargaining agent operating within the bargaining unit may file a motion for intervention with the Med-Arbiter during the freedom period of the CBA. The form and contents of the motion shall be the same as that of a petition for certification election. Motion for Intervention for an unorganized establishment the motion shall be filed at any time prior to the decision of the MedArbiter. The form and contents of the motion shall be the same as that of a petition for certification election. The motion for intervention shall be resolved in the same decision issued in the petition for certification election. If a decision has already been made by the Med-Arbiter, a motion for intervention may still be filed at any time prior to the conduct thereof by any labor union having substantial interest in the outcome thereof. Upon the filing of the petition, the Med-Arbiter assigned to the case shall be determined by means of a raffle. Immediately after the raffle of the case or receipt of the petition, the same shall be transmitted to the Med-Arbiter, who shall in the same instance prepare and serve upon the petitioning party a notice for preliminary conference. The MedArbiter shall conduct the preliminary conference and hearing within 10 days from the receipt of the certification election to determine the following: (a) the bargaining unit to be represented; (b) contending labor unions; (c) possibility of a consent election; (d) existence of any of the bars to certification election under Section 3 of this Rule; and (e) such other matters as may be relevant for the final disposition of the case. If the contending unions agree to the conduct of the certification election during preliminary conference, the Med-Arbiter shall enter the fact of the agreement in the minutes of the hearing, and a pre-election conference shall be scheduled within 10 days from the date of entry of agreement to conduct consent election. If the contending unions fail to agree to a consent election, the MedArbiter may conduct as many hearings and the contending labor unions may file pleadings as they may deem necessary for the immediate resolution of the petition. The failure of any party to appear in the hearings when notified or to file its pleadings shall be deemed a waiver of its right to be heard. LA SUERTE CIGAR vs. DIRECTOR OF THE BLR La Suerte Cigar's local union applied for and was granted chapter status by the NATU. 31 local union members signed a joint letter withdrawing their membership in NATU. The local union and NATU filed a PCE. The company opposed on

the ground that it was not supported by at least 30% (now 25%) of the proposed bargaining unit because, of the alleged 48 members of the local union, 31 had withdrawn prior to the filing of the petition. The SC held that the withdrawal of 31 members from NATU affected the PCE insofar as the 30% requirement is concerned. It would have been different if the withdrawal was made after the filing of the petition for it would then be presumed that the withdrawal was not free and voluntary. In other words, the distinction must be that withdrawals made before the filing of the petition are presumed voluntary unless there is convincing proof to the contrary, whereas withdrawals made after the filing of the petition are deemed involuntary and does not affect the proceedings. Grounds for Denial of PCE: (a) The petitioner is not listed in the Department's registry of legitimate labor unions or that its legal personality has been revoked or cancelled with finality; (b) The petition was filed before or after the freedom period of a duly registered CBA; provided that the 60-day period based on the original CBA shall not be affected by any amendment, extension or renewal of the CBA; (c) The petition was filed within one year from entry of voluntary recognition or a valid certification, consent or run-off election and no appeal on the results of the certification, consent or run-off election is pending; (d) A duly certified union has commenced and sustained negotiations with the employer in accordance with Article 250 of the Labor Code within the one-year period referred to in (c), or there exists a bargaining deadlock which had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout to which an incumbent or certified bargaining agent is a party; (e) In case of an organized establishment, failure to submit the 25% support requirement for the filing of the petition for certification election. R. TRANSPORT CORP. VS LAGUESMA CLOP filed a PCE. Med-Arbiter dismissed on the ground that the bargaining unit sought to be represented did not include all the eligible employees. CLOP rectified its mistake and filed a second petition. The employer opposed contending that it constitutes res judicata. The Med-Arbiter then ordered that a certification election be conducted. ALU-TUCP filed a motion for intervention and alleged that it has members in the proposed bargaining unit. Subsequently, NAFLU filed a separate PCE and a motion to consolidate related cases to avoid confusion. The SC held that the second PCE need not be filed after one year from the dismissal of the first PCE. There can only be a prohibition for one year if there was an actual conduct of election. In this case, there was no certification election conducted precisely because the first petition was dismissed. LAGUNA AUTOPARTS vs. DOLE SECRETARY LAMCOR filed a PCE. Laguna Autoparts moved to dismiss the PCE because the union was not considered a legitimate labor organization for failure to show that it had complied with registration requirements such as submission of required documents to the Bureau. Med-Arbiter dismissed the PCE. The SC held that the union is a legitimate labor organization. Thus, the unions legal personality cannot be attacked collaterally in a PCE case. There must be a separate action instituted particularly for the purpose of assailing the union's legal personality. SAMAHAN vs. SECRETARY OF LABOR SAMAFILNAFLU-KMU, a registered labor union, filed a PCE. Filsystems opposed the petition, questioning petitioner's status as a legitimate labor organization on the ground of lack of proof that its contract of affiliation with NAFLU-KMU has been submitted to the Bureau within 30 days from its execution. The SC ruled that SAMAFILNAFLU-KMU had legal personality to file the PCE. As a legitimate labor organization, its right to file a petition for

6 certification election cannot be questioned. The failure of petitioner to prove its affiliation with NAFLU-KMU cannot affect its right to file said petition for certification election as an independent union. Petitioner's failure will result in an ineffective affiliation with NAFLU-KMU. Still, however, it can pursue its PCE as an independent union. Despite affiliation, the local union remains the basic unit free to serve the common interest of all its members and pursue its own interests independently of the federation. Resolved in the same order or decision granting or denying the PCE: 1. All issues pertaining to the existence of employer-employee relationship; and 2. Eligibility or mixture in union membership. Resolved in an independent petition for cancellation: 1. Any question pertaining to the validity of petitioning union's certificate of registration or its legal personality as a labor organization; 2. Validity of registration and execution of CBA III. CONSENT ELECTION Consent election is when all the parties agree to have an election and that the bargaining unit is appropriate. Remember that the first issue to be determined is the appropriateness of the bargaining unit. In consent election, the employer no longer questions the appropriateness of the bargaining unit. The employer consents to holding of an election. Therefore, consent election is still a certification election, but the determination of the bargaining unit is bypassed because the parties already agreed to conduct a certification election. Consent Election vs. Certification Election A consent election is one mutually agreed upon by the parties, with or without the intervention of the DOLE. Its purpose being merely to determine the issue of majority representation of all the workers in an appropriate bargaining unit. A certification election, on the other hand, is one which is ordered by the DOLE and is aimed in determining the sole and exclusive bargaining agent of all the employees in the bargaining unit for the purpose of collective bargaining. When there is already a PCE filed and the parties agree to hold a consent election, the results thereof shall constitute a bar to the holding of a certification election for one year from the holding of such consent election. Where an appeal has been filed from the results of the consent election, the running of the one-year period shall be suspended until the decision on appeal has become final and executory. When there is no PCE is filed, but the parties themselves agreed to hold a consent election, the results thereof shall constitute a bar to another petition for certification election. IV. RUN-OFF ELECTION Run-off elections refers to an election between labor unions receiving the two highest number of votes in a certification or consent election with three or more choices, where such a certification or consent election results in none of the three or more choices receiving the majority of the valid votes cast; provided that the total number of votes for all contending unions is at least 50% of the number of votes cast. Elements: 1. There is a valid election majority (50% + 1) of all eligible voters participated in the election; (Note: It does not have to be that majority are valid votes. Even if they were invalid votes, for as long as they cast it, they participated); 2. There are three or more choices; 3. None of the choices receives majority of the valid votes cast;

4.

The sum of the votes cast for all the competing unions is at least 50% of the votes cast.

Note: Not every second election is a run-off election because the first election could be an invalid election. If less than the majority of the eligible voters cast their ballots, there is failure of election, and there will be another election. In the second election, if there are three choices and none of the choices receive the majority of the valid votes cast, there could be a third election, which is the run-off election. Qualification of voters The same voters' list used in the certification election shall be used in the run-off election. The ballots in the run-off election shall provide as choices the unions receiving the highest and second highest number of the votes cast. The labor union receiving the greater number of valid votes cast shall be certified as the winner. "No Union" shall not be a choice in the run-off election. If in a certification election, there are only two choices: no union; and one union seeking to exclusively represent the bargaining unit, and if there is a tie, the no union wins. (Status quo) CONDUCT OF CERTIFICATION, CONSENT, and RUN-OFF ELECTIONS Election Proceedings the period during a certification election, consent or run-off election and election of union officers, starting from the opening to the closing of the polls, including the counting, tabulation and consolidation of votes, but excluding the period for the final determination of the challenged votes and the canvass thereof Election Officer an officer of the BLR in the Regional Office authorized to conduct certification elections, election of union officers and other forms of elections and referenda I. Raffle of the case Within 24 hours from receipt of the notice of entry of final judgment granting the conduct of a certification election, the case shall be raffled to an Election Officer who shall have control of the pre-election conference and election proceedings. II. Pre-election conference Within 24 hours from receipt by the Election Officer, he shall cause the issuance of notice of pre-election conference upon the contending unions and the employer. The preelection conference shall set the mechanics for the election and shall determine, among others, the following: (a) date, time and place of the election, which shall not be later than 45 days from the date of the first pre-election conference, and shall be on a regular working day and within the employer's premises, unless circumstances require otherwise; (b) list of eligible and challenged voters (note: cannot question during the actual conduct of certification election); (c) number and location of polling places or booths and the number of ballots to be prepared with appropriate translations, if necessary; (d) name of watchers or representatives and their alternates for each of the parties during election; and (e) mechanics and guidelines of the election. Note: It is an obligation of the employer to submit the list of employees in the bargaining unit. Failure of any party to appear during the pre-election conference despite notice shall be considered as a waiver to be present and to question or object to any of the agreements reached in said preelection conference. But the non-appearing party shall still be furnished notices of subsequent pre-election conferences and to attend the same. III. Qualification of voters All employees who are members of the appropriate bargaining unit sought to be represented by the petitioner at the time of the issuance of the order granting the conduct of a

7 certification election shall be eligible to vote. An employee dismissed from work but has contested the legality of the dismissal in a forum of appropriate jurisdiction, and there is no final judgment yet, shall be considered a qualified voter. In case of disagreement over the voters' list or over the eligibility of voters, all contested voters shall be allowed to vote. But their votes shall be segregated and sealed in individual envelopes Note: All employees whether probationary or permanent or regular may participate in the election. The law does not make any distinction. However, only employees who have direct employment relationship with the employer may vote, regardless of the period of employment. IV. Posting of Notices The Election Officer shall cause the posting of notice of election at least 10 days before the actual date of the election in two 2 most conspicuous places in the company premises. V. Preparation of ballots The Election Officer shall prepare the ballots. All ballots shall be signed at the back by the Election Officer and authorized representative of each of the contending unions and employer. VI. Marking of votes The voter must put a cross or check mark in the square opposite the name of the union of his choice or "No Union" if he/she does not want to be represented by any union. If a ballot is torn, defaced or left unfilled in such a manner as to create doubt or confusion or to identify the voter, it shall be considered spoiled. VII. Challenging of votes An authorized representative of any of the contending unions may challenge a vote before it is deposited in the ballot box only on any of the following grounds: (a) that there is no employer-employee relationship between the voter and the company; (b) that the voter is not a member of the appropriate bargaining unit which petitioner seeks to represent. When a vote is properly challenged, the Election Officer shall place the ballot in an envelope which shall be sealed in the presence of the voter and the representatives of the contending unions and employer. The envelopes shall be opened and the question of eligibility shall be passed upon only if the number of segregated voters will materially alter the results of the election. Other than grounds mentioned, the Election Officer may rule on any on-the-spot questions relating to and raised during the conduct of the election. VIII. Protest Any party-in-interest may file a protest based on the conduct or mechanics of the election. The protesting party must formalize its protest with the Med-Arbiter, with specific grounds, arguments and evidence, within 5 days after the close of the election proceedings. IX. Canvassing of votes The votes shall be counted and tabulated by the Election Officer in the presence of the representatives of the contending unions. The opening and canvass shall proceed immediately after the precincts have closed. X. Certification of Collective Bargaining Agent The union which obtained a majority of the valid votes cast shall be certified as the sole and exclusive bargaining agent of all the employees in the appropriate bargaining unit within 5 days from the day of the election, provided no protest is recorded in the minutes of the election. There being a valid election, the Election Officer shall transmit the records of the case to the Med-Arbiter who shall issue an order proclaiming the results of the election and certifying the union which obtained a majority of the valid votes cast as the sole and exclusive

bargaining agent in the subject bargaining unit under any of the following conditions: (a) no protest was filed or, even if one was filed, the same was not perfected within the five-day period for perfection of the protest; (b) no challenge or eligibility issue was raised or, even if one was raised, the resolution of the same will not materially change the results of the elections. Failure of election Where the number of votes cast in a certification or consent election is less than the majority of the number of eligible voters and there are no material challenged votes, the Election Officer shall declare a failure of election in the minutes of the election proceedings. A failure of election shall not bar the filing of a motion for the immediate holding of another certification or consent election within 6 months from date of declaration of failure of election. Employer May File Petition for Certification Election Employers right to file PCE when there is no existing CBA The only time and the only exception when the employer may file a PCE is when it is requested by a union to bargain collectively. The employer does not have the power to declare the union the exclusive bargaining agent of the workers for the purpose of collective bargaining for it is the employees prerogative to determine whether they want a union to represent them and, if so, which one it should be. Employers right to file PCE when there is an existing CBA Existence of a CBA presupposes that there is an incumbent exclusive bargaining agent which successfully negotiated and concluded it with an employer. It must be noted that it is only during the 60-day freedom period that the incumbent bargaining agent usually submits new proposals to the employer for the renewal of the CBA for another 5 years. The employer is duty-bound to respect the majority status of the incumbent where no PCE is filed at the expiration of the 60-day period. This is known as the doctrine of automatic renewal. When there is a CBA, the employer may not validly file a PCE even if it is convinced that the bargaining agent no longer possesses majority support of the members of the bargaining unit where the latter operates. Thus, if there is no PCE filed before the 60-day freedom period, the incumbent continues to possess the majority status and the employer is bound to respect such status. It is the law which asserts the presumption of majority status and the employer must respect such legal presumption. In raising the issue of majority status, the members of the bargaining unit should have filed a PCE during the 60-day period. Therefore, employers can file a PCE only in cases of unorganized establishments where there are no incumbent bargaining agents voluntarily recognized by the employer, or duly certified as such in an appropriate election proceedings. Employer as a bystander After the filing of the PCE, the employer shall not be considered a party thereto. When the employer files a PCE, it is only when it is requested by the union to engage in collective bargaining. After that, the role of the employer in the certification process ceases. It becomes a bystander. The employers participation in such proceedings shall be limited to: (1) being notified or informed of petitions of such nature; and (2) submitting the list of employees during the pre-election conference should the Med-Arbiter act favorably on the petition. SAN MIGUEL FOODS vs. SMCSEU DOLE conducted pre-election conferences. However, it was found out that there was discrepancy on the list of eligible voters. This was challenged by San Miguel Foods, as these employees, aside that they are working in a separate and distinct entity; few are also working as confidential employees which are

8 considered prohibited to join. The SC held that they should not be excluded. There should be only one bargaining unit for the employees involved. It bears stressing that a certification election is the sole concern of the workers; hence, an employer lacks the personality to dispute the same. The general rule is that an employer has no standing to question the process of certification election, since this is the sole concern of the workers. Law and policy demand that employers take a strict, hands-off stance in certification elections. The bargaining representative should be chosen free from any extraneous influence of management. A labor bargaining representative, to be effective, must owe its loyalty to the employees alone and to no other. The only exception is where the employer itself has to file the petition pursuant to Article 258 because of a request to bargain collectively. Instances where the employer can intervene in the PCE: (a) In determining the appropriateness of the bargaining unit, the employer has first hand legitimate interest. This happens when there are several bargaining units and the employer will have nothing to do except bargaining one after another and it has no more time for its legitimate business interest. (b) When the employer is already dealing with an exclusive bargaining agent and there is already a CBA existing between the two parties, and subsequently, a PCE is filed by another union. Note: The period mentioned under Article 258 within which to decide the certification election case and to conduct the election proceedings are merely directory. Non-compliance will not affect its validity. De-certification Election After the 60-day freedom period and no PCE is filed, the employer shall continue to recognize the incumbent as the exclusive bargaining agent. During the 60-day freedom period, if there are those who want to campaign not in favor of any labor organization, and want to revert to a workplace where there is no union representing the bargaining unit, the members of the bargaining unit should file a Petition for De-certification Election. 25% of the bargaining unit must jointly file a petition that it will revert to non-union status. It is a right because the right to self-organization not only includes the right to choose the union of ones choice, but also not to join a union. If 25% of the members of the bargaining unit in an organized establishment files a PCE, you have two choices: (1) no union; or (2) the incumbent. But if it is a union that files a PCE, and there is no other motion for intervention, the choices are: (1) petitioning union; or (2) forced intervenor (incumbent). There is no more no union choice because that has not been brought into question. But if you file for decertification election, the "no union" choice shall be included. Appeal in Certification Election Cases Any party to an election may appeal the certification election order or results of the election as determined by the Med-Arbiter directly to the Secretary of Labor and Employment on the ground that the rules and regulations or parts thereof established by the Secretary of Labor and Employment for the conduct of the election have been violated. Appeal in an unorganized establishment The order granting the conduct of a certification election shall not be subject to appeal. Any issue arising therefrom may be raised by means of protest on the conduct and results of the certification election. But the decision dismissing or denying the petition may be appealed to the Office of the Secretary within 10 days from receipt thereof. Appeal in an organized establishment The order granting the conduct of a certification election and the decision dismissing or denying the petition may be appealed to the Office of the Secretary within 10 days from receipt thereof.

Note: Not all of the orders issued by the Med-Arbiter are appealable. Interlocutory orders prior to the grant or denial of the petition, including orders granting motions for intervention issued after an order calling for a certification election is issued, are not appealable although any issue arising therefrom may be raised in the appeal on the decision granting or denying the petition. Who may file appeal: General Rule: Any aggrieved party to an election Exception: The employer is not a party to the proceedings but a bystander or stranger which has no right to interfere therein or material interest to assail it. Grounds for Appeal in Certification Election cases: 1. Violation of the grounds for challenging of votes: (a) No employer-employee relationship between the voter and the company; (b) The voter is not a member of the bargaining unit which the petitioner seeks to represent. 2. Serious error of fact or law in the resolution of a protest. The appeal shall be verified under oath and shall consist of a memorandum of appeal, specifically stating the grounds relied upon by the appellant with the supporting arguments and evidence. Where to file: The memorandum of appeal shall be filed in the Regional Office where the petition originated. Within 24 hours from receipt of the appeal, the Regional Director shall cause the transmittal thereof together with the entire records of the case to the Office of the Secretary. Once the order dismissing a PCE is seasonably appealed, such appeal stops the holding of any certification election. Where no appeal is filed within the 10-day period, the Med-Arbiter shall enter the finality of the order/decision in the records of the case and cause the transmittal of the records of the petition to the Regional Director. Reply A reply to the appeal may be filed by any party to the petition within 10 days from receipt of the memorandum of appeal. The reply shall be filed directly with the Office of the Secretary. Decision of Secretary The Secretary shall have 15 days from receipt of the entire records of the petition within which to decide the appeal. The decision of the Secretary shall become final and executory after 10 days from receipt thereof by the parties. No motion for reconsideration of the decision shall be entertained. M.Y. SAN BISCUITS vs. LAGUESMA The union filed a PCE. After the parties submitted their position papers, the Med-Arbiter dismissed the petition on the ground that as there is no employer-employee relationship. Meanwhile, the union and several others filed before the NLRC a complaint for underpayment of wages. The Labor Arbiter rendered a decision dismissing the said complaint on the ground that there is no employer-employee relationship between the parties. The SC held that there was employer-employee relationship. Once there is a determination as to the existence of such a relationship, the MedArbiter can then decide the PCE case. His finding thereon may only be reviewed and reversed by the Secretary of Labor, who exercises appellate jurisdiction under Article 259.

9 agent of workers and the employer concerning wages, hours of work and all other terms and conditions of employment in the appropriate bargaining unit, including mandatory provisions for grievances and arbitration machineries. Requisites of Collective Bargaining: 1. Employer-employee relationship must exist between the employer and the members of the bargaining unit being represented by the bargaining agent; 2. The bargaining agent must have the majority support of the members of the bargaining unit established through modes sanctioned by the law; 3. A lawful demand to bargain is made in accordance with law; 4. The demand to bargain must be reduced in writing with clear statement of the proposals. Certification year The negotiations between the employer and the exclusive bargaining agent shall begin within 12 months following the certification of the union as exclusive bargaining agent. The duty to bargain extends to the whole certification year, and if the employer refuses to negotiate within the year, there is unfair labor practice. Good faith bargaining Claims made by either bargainer should be honest claims. The signing of the CBA continues to the stage where the parties thereto are mandated to administer and implement the agreed terms and conditions of the employment relationship. The CBA process covers all aspects of the employment relationship between the employer and the employees, commencing with the negotiation and finally, its administration, application, and implementation. KIOK LOY vs. NLRC Facts: In a certification election, the Union was subsequently certified in a resolution by the Bureau as the exclusive bargaining agent of the rank-and-file employees of Sweden Ice Cream Plant. The Union furnished the employer with two copies of its proposed CBA. It also requested the employer for its counter proposals. Both requests were ignored upon by the employer. The Union filed a "Notice of Strike" on ground of unresolved economic issues in collective bargaining. The NLRC declared the employer guilty of unjustified refusal to bargain. Held: The employer is guilty of unjustified refusal to bargain. Collective bargaining, which is defined as negotiations towards a collective agreement, is one of the democratic frameworks under the 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. While it is a mutual obligation of the parties to bargain, the employer, however, is not under any legal duty to initiate contract negotiation. The mechanics of collective bargaining is set in motion only when the following jurisdictional preconditions are present, namely, (1) possession of the status of majority representation of the employees' representative in accordance with any of the means of selection or designation; (2) proof of majority representation; and (3) a demand to bargain. From the over-all conduct of employer in relation to the task of negotiation, there can be no doubt that the Union has a valid cause to complain against the employer's attitude, the totality of which is indicative of the latter's disregard of, and failure to live up to, what is enjoined by the Labor Code to bargain in good faith. LAKAS vs. MARCELO LAKAS and 3 other unions are vying for the attention of the Marcelo Companies regarding who shall by the sole and exclusive bargaining representative. The companies required proof of authority from the unions. Later, the companies were compelled to file a PCE on who shall be the exclusive bargaining agent. Among other things, LAKAS claims that these are considered ULP. Where the issue of legitimate representation is not only for one legitimate labor

COLLECTIVE BARGAINING AND ADMINISTARTION OF AGREEMENTS Collective Bargaining Agreement CBA for short, refers to the contract between a duly recognized or certified exclusive bargaining

organization but two or more, there is every equitable ground warranting the holding of a certification election. In this way, the issue as to who is really the true bargaining representative of all the employees may be firmly settled by the simple expedient of an election. A natural consequence is that the employer has the right to demand of the asserted bargaining agent proof of its representation of its employees. It is not ULP for an employer to refuse to negotiate until the asserted bargaining agent has presented reasonable proof of majority representation. It is necessary however, that such demand be made in good faith and not merely as a pretext or device for delay or evasion. DIVINE WORD vs. SECRETARY There was a certification election and an independent union of the faculty won. They were certified as exclusive bargaining agent. The president handed over to the university a list of bargaining proposals. Subsequently, the president died. Three years later, the university administration suddenly got another set of bargaining proposals. This time, it was handed over by those who purported to be federation officials. The management set the date for negotiation. On the same day that they were supposed to negotiate, management filed a PCE on the ground that they were asked to bargain and they were not sure of the status of this union. The union declared a strike contending that they were accepted as the bargaining agent, yet management still filed a PCE. The SC held that Divine Word is guilty of ULP. While technically, the University has the right to file the PCE as there was no bargaining deadlock to speak of, to grant its prayer would result to bad faith bargaining. Bad faith on the part of the University is further exemplified by the fact that an hour before the start of the conference, it secretly filed the PCE. In so doing, the University failed to act in accordance with Art. 252. Likewise, the University's contention that the union's proposals may not be unilaterally imposed on it on the ground that the consent of both parties is indispensable in a CBA is devoid of merit. Kiok Loy vs. NLRC is applicable in the case. MANILA MINING EMPLOYEES vs. MANILA MINING The union submitted letters to MMC relating its intention to bargain collectively. The Union submitted its CBA proposals. The MMC was compelled to temporarily shut down its mining operations, resulting in the temporary lay-off of more than 400 employees in the mine site. MMC called for the suspension of negotiations on the CBA with the Union until resumption of mining operations. ULP cannot be imputed to MMC since the call of MMC for a suspension of the CBA negotiations cannot be equated to refusal to bargain. For a charge of ULP to prosper, it must be shown that the employer was motivated by ill-will, bad faith or fraud, or was oppressive to labor. 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. It cannot be said that MMC deliberately avoided the negotiation. It merely sought a suspension and in fact, even expressed its willingness to negotiate once the mining operations resume. Collective Bargaining Process I. Preliminary process act of party desiring to negotiate an agreement, by serving a written notice upon the other party with a statement of its proposals. It is usually initiated by the bargaining union. But the employer may also initiate it by making the proposal first to the bargaining union. The other party shall make a reply not later than 10 days from receipt of the notice. Duty to reply is mandatory. Refusal to reply and make a counter-proposal shows lack of sincere desire to negotiate, rendering such party guilty of unfair labor practice. II. Negotiation process process of meeting not later than 10 calendar days from the date of request for conference between the representatives of the employer and the bargaining union for the

10 purpose of discussing and adjusting their differences in order to conclude an agreement on the terms and condition of employment relationship. In case of dispute arising therefrom is not settled by the parties among themselves, the NCMB may intervene. III. Execution process signing and execution of a written document called the CBA, by the representatives of both management and the bargaining union, after negotiations and agreements on each and every issue are reached and concluded. IV. Publication process the posting of a copy of the newly-concluded CBA in at least 2 conspicuous places in the place of work of the company at least 5 days prior to the ratification thereof by the members of the bargaining unit. V. Ratification process act of ratifying the CBA by at least majority of the members of the bargaining unit. VI. Registration process registration of the ratified CBA with the BLR or the Regional Office of the DOLE, by submitting 5 copies thereof together with other documentary requirements and paying the required registration fee. VII. Administration process joint administration of the CBA by the employer and the bargaining union during the lifetime thereof which is set by law at 5 years. VIII. Interpretation and application process interpretation, application, and implementation of the stipulations embodied in the CBA to give effect thereto. Mandatory CBA stipulations: 1. Stipulations on wage increases; 2. Stipulations on grievance machinery procedure underlying the CBA for dealing with disagreements in the implementation and interpretation of the CBA; 3. Stipulations on voluntary arbitration; 4. No-strike, no-lockout clause Lockout means that the employer will not grant any work to the employees, to compel the latter to follow the demands of the employer. Strike is when employees will not go to work in order to pressure the employer to grant them what they are not legally obliged to grant under the law. "Nostrike, no-lockout" clause covers only economic strikes. It does not cover ULP strikes because if it does, such clause shall be a license for the management to oppress the workers; 5. A provision on drug-free workplace (RA 9165) 6. Workplace policies and programs in organized establishments (DOLE D.O. 53-03) PLANTERS PRODUCTS vs. NLRC A provision in the CBA limited the application of the termination allowance only to those separated from the service due to disability. If the prior CBAs are applied, the complainants would be entitled to termination allowance under the CBA. Bad faith in the negotiations was not present considering that the provision on termination allowance was made to apply to everybody including those subsequently retrenched after the complainants' retrenchment. There was no singling out of the complainants. Mandatory Requirements: 1. Publication Posting provided under Sec. 7, Rule XVI is mandatory. Non-compliance will render the CBA ineffective. Duty to post the CBA is on the part of the employer. 2. Ratification made not by the majority of the members of the bargaining union, but by the majority of the members of the bargaining unit which is being represented in the negotiations. 3. Registration Rule XVIII

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. Duty to bargain collectively requirement on both parties to perform the mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement. The duty to bargain does not include the obligation to reach an agreement. STANDARD CHARTERED BANK EMPLOYEES UNION vs. CONFESOR Facts: Standard Chartered Bank Employees Union is the exclusive bargaining agent. The Union sought to renegotiate the terms of the CBA and initiated the negotiations. The Bank attached its counter-proposal to the non-economic provisions proposed by the Union. The parties met and set the ground rules for the negotiation. Diokno suggested that the negotiation be kept a family affair. There were still non -economic provisions on which the Union and the Bank could not agree. The negotiation for economic provisions commenced. Except for the provisions on signing bonus and uniforms, the Union and the Bank failed to agree on the remaining economic provisions of the CBA. The Union declared a deadlock and filed a Notice of Strike. The Bank filed a complaint for ULP. Held: The Bank is not guilty of surface bargaining. The minutes do not show that the Bank had any intention of violating its duty to bargain with the Union. Records show that after the Union sent its proposal to the Bank, the latter replied with a list of its counter-proposals. The duty to bargain does not compel either party to agree to a proposal or require the making of a concession. Hence, the parties failure to agree did not amount to ULP. The Union is also not guilty of ULP for engaging in blue-sky bargaining. The Bank failed to show that the economic demands made by the Union were exaggerated or unreasonable. Three positive duties: 1. To meet promptly and expeditiously; 2. In good faith; 3. 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. Negative aspects: But such duty does not compel any party: 1. To agree to any proposal; or 2. to make any concession ABARIA vs. NLRC Facts: NAMA-MCCH-NFL charged MCCHI with refusal to bargain collectively when the latter refused to meet and convene for purposes of collective bargaining, or at least give a counter-proposal to the proposed CBA the union had submitted and which was ratified by a majority of the union membership. MCCHI, on its part, deferred any negotiations until the local unions dispute with the NFL is resolved considering that the latter is the exclusive bargaining agent. Held: The SC ruled that MCCHI is not guilty of unfair labor practice. (1) NAMA-MCCH-NFL had not registered as a labor organization, having submitted only its charter certificate as an affiliate or local

11 chapter of NFL. Not being a LLO, NAMA-MCCH-NFL is not entitled to those rights granted to a LLO. (2) Aside from the registration requirement, NAMA-MCCH-NFL is not the exclusive bargaining union. While it is true that a local union has the right to disaffiliate from the national federation, NAMAMCCH-NFL has not done so as there was no any effort on its part to comply with the legal requisites for a valid disaffiliation. (3) To prove majority support of the employees, NAMA-MCCH-NFL presented the CBA proposal allegedly signed by 153 union members. However, the petition signed by said members showed that the signatories endorsed the proposed terms and conditions without stating that they were likewise voting for or designating the NAMA-MCCH-NFL as their exclusive bargaining representative. Even assuming that NAMA-MCCH-NFL had validly disaffiliated from NFL, it still did not possess the legal personality to enter into CBA negotiations. A local union which is not independently registered cannot, upon disaffiliation from the federation, exercise the rights and privileges granted by law to LLOs; thus, it cannot file a PCE. Mandatory Subjects of Bargaining Terms and conditions of work of the bargaining unit; there is a necessity to negotiate on the matter but it is not necessary to agree on such matter. Managements rights and prerogatives The power to grant benefits over and beyond the minimum standards of the law belongs to the employer. However, the exercise of management prerogatives is limited by the law, the CBA, or in the general principles of fair play and justice. Disclosure of information during negotiations The management should, upon request of the bargaining union, make available financial information which is material and necessary for the negotiations. However, if the disclosure of such information could be prejudicial to the employer, its communication may be conditioned upon a commitment that it would be regarded as confidential to the extent required. Zipper clause A provision in a CBA stating that the written CBA is the complete agreement between the parties and that any practice or agreement not contained in the CBA is null and void unless reduced to writing and signed by both parties. Any matter not mentioned in the written CBA shall be deemed waived, regardless of whether that matter was contemplated when the contract was negotiated or signed. Under the Rules on Evidence, when the terms of an agreement have been reduced into writing, there shall be no evidence as to what has been agreed upon that may be accepted, except what is in the four corners of the agreement. This is the Parol Evidence Rule. Evidence ex aliunde is not acceptable if the agreement is reduced into writing. Note: The minutes of the CBA negotiation meetings does not form part of the entire agreement. Nothing shall be considered final until the parties have reached an agreement. Any promise made during the negotiations could only be demandable if incorporated in the CBA. SAMAHANG MANGGAGAWA SA TOP FORM vs. NLRC SMTFM was the certified collective bargaining representative of all regular rank and file employees of Top Form. Negotiations were held. The parties agreed to discuss unresolved economic issues. In the minutes of the meeting, across the board wage increase was tackled but it was not stated anymore in the CBA since the union dropped such proposals relying to the undertakings made by the officials of the company. As expected, the union requested the implementation of said wage orders. However, they demanded that the increase be on an across-the-board basis. The company refused to accede to that demand. The SC held that the company did not commit ULP in its refusal to grant across-the-board

wage increases since such wage increase is not part of the CBA. The Minutes only reflect the proceedings and discussions undertaken in the process of bargaining. The union had the right and the opportunity to insist on the foreseeable fulfillment of the company's promise by demanding its incorporation in the CBA, but they did not. Because the proposal was never embodied in the CBA, the promise has remained just that, a promise, the implementation of which cannot be validly demanded under the law. Unilaterally-granted benefits In UNION OF FILIPRO vs. NESTLE, the company grants non-contributory retirement benefits. The company contends that it is not subject to CBA negotiations. The SC disagreed considering that the retirement plan is consensual in nature. Employees have a vested and demandable right over existing benefits voluntarily granted to them by the employer. The latter may not unilaterally withdraw, eliminate, or diminish such benefits. Absorption Doctrine When there is absorption and integration by one entity of one or more establishments having the same kind and line of business and having their respective CBAs with different labor unions existing therein. Merger or Consolidation Merger or consolidation does not affect collective bargaining negotiation. When a company is under an existing CBA, the employees from the company absorbed who have already exercised the right of self-organization, shall be covered by the CBA of the absorbing company. Thus, the employees are now part of the CBA of the company with which they have been merged. BPI vs. BPI UNION Although by virtue of the merger BPI steps into the shoes of FEBTC as a successor employer as if the former had been the employer of the latters employees from the beginning it must be emphasized that, in reality, the legal consequences of the merger only occur at a specific date, i.e., upon its effectivity which is the date of approval of the merger by the SEC. In other words, the obligation of BPI to pay the salaries and benefits of the former FEBTC employees and its right of discipline and control over them only arose with the effectivity of the merger. Concomitantly, the obligation of former FEBTC employees to render service to BPI and their right to receive benefits from the latter also arose upon the effectivity of the merger. Suspension of employers operations Bargaining negotiations must be conducted. The employer cannot evade its obligation to bargain with the union using the cessation of its business as reason therefor. The employer-employee relationship is merely suspended, not terminated. Closure of employers business The employer cannot be compelled to enter into a new CBA. Duty to Bargain of Successor Employer The duty to recognize and bargain with the incumbent union devolves upon the transferee as Successor employer. An acquiring employer becomes the successor to the bargaining obligations of his predecessor. A mere change in the ownership of the business is insufficient to alter the unions status as bargaining representative. Substitutionary Doctrine The change in the bargaining agent does not result in the revocation of the existing CBA. While the employees may change their bargaining agent, the CBA continues to bind them up to its expiration date. The new bargaining agent is bound to respect the CBA although it may bargain with the employer for the shortening of the term of the agreement. Automatic incorporation clause provision of the existing laws form part of a valid contract; the law is presumed to be part of the contract.

12 Who are entitled to the benefits from the CBA? Not only to members of the bargaining union, but also to non-members who are part of the bargaining unit. An employee, who was a member of the bargaining union at the time it entered into a CBA with the employer, is entitled to benefits from the CBA even after he has resigned from the said union. Likewise, the benefits shall be extended to employees who only became such after the expiration of its stipulated term. To exclude them would constitute undue discrimination and deprive them on benefits which they are entitled to receive under the CBA. CBA Imposed Lock, Stock and Barrel on an Employer A CBA may be unilaterally imposed on the employer if the latter fails to discharge its duties to bargain collectively. Generally, when there is already a CBA, its provision shall continue to govern the parties until a new one is agreed upon. However, if one of the parties abuse this grace period by delaying the bargaining process, the employer loses its statutory right to negotiate and re-negotiate the terms of the CBA proposed by the employee. Hence, the proposal of the union shall be consequently imposed on the employer, lock, stock and barrel. Pendency of PCE The employer has no duty to bargain collectively with the union if there is a pending PCE. The certification election presents the issue on the majority representation of the employees. However, in order to allow the suspension of the bargaining process, there must be a valid PCE raising a legitimate representation issue. The mere filing of PCE does not automatically justify the suspension of the negotiation by the employer. If the PCE was filed outside the 60-day freedom period, such filing is invalid because of the existing CBA. Hence, there is no representation issue in such case and the ongoing negotiation cannot be barred by such filing of the PCE. COLEGIO DE SAN JUAN DE LETRAN vs. ASSOCIATION OF EMPLOYEES Facts: Abtria, then President of the union, initiated the renegotiation of its CBA with Letran. On the same year, the union elected a new set of officers, with Ambas as new president. Ambas wanted to continue the renegotiation of the CBA but Letran claimed that the CBA was already prepared for signing by the parties. The parties submitted the disputed CBA to a referendum by the union members, who eventually rejected the said CBA. The parties agreed to disregard the unsigned CBA and to start negotiation on a new CBA. Thereafter, Ambas was informed that her work schedule was being changed. Ambas protested. Due to petitioners inaction, the union filed a notice of strike. The union then received Letrans letter dismissing Ambas for alleged insubordination. Held: Letran is guilty of ULP. There is a requirement on both parties of the performance of the mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement. The union lived up to its requisite when it presented its proposals to Letran. On the other hand, Letran devised ways and means in order to prevent the negotiation. Letrans utter lack of interest in bargaining with the union is obvious in its failure to make a timely reply to the proposals from the union. To allow the employer to validly suspend the bargaining process, there must be a valid PCE raising a legitimate representation issue. Hence, the mere filing of a PCE does not ipso facto justify the suspension of negotiation by the employer. ATU vs. TRAJANO TUPAS filed a PCE. Despite opposition from ATU, the petition was granted. Thus, a certification election was ordered. ATU claims that TUPAS's PCE is defective because (1) at the time it was filed, it did not contain the signatures of 30% of the workers; and (2) it was not allowed under the contract-bar rule because a new CBA had been entered into by ATU with the company. The SC held that the applicable provision in the case at bar is Article 256 because the company is an organized establishment. Under this provision, the petition for certification election need no longer carry the signatures of the 30% of the workers consenting to such petition. The petition must

also fail on the second issue which is based on the contract-bar rule. This rule simply provides that a PCE can only be entertained within 60 days prior to the expiry date of an existing CBA. The CBA was entered into at a time when the PCE had already been filed by TUPAS and was then pending resolution. The said CBA cannot be deemed permanent, precluding the commencement of negotiations by another union with the management. It shall only be recognized temporarily, subject to the results of the election. The CBA may be continued in force if ATU wins, or may be replaced in the event that TUPAS emerges as the winner. Pendency of Petition for Cancellation of Registration The collective bargaining process must continue despite the pendency of such petition for cancellation. The majority status of the union is not affected by the pendency of the petition for cancellation pending against it. Unless the unions registration and status as exclusive bargaining agent is revoked, the employer shall be bound the bargain collectively. Duty to Bargain Collectively When There is a CBA When there is an existing CBA, the parties are bound to observe the terms and conditions therein set forth until its expiration. Collective Bargaining as a process does not end with the CBA. It continues in the adjustment of grievances. The employer and the union must meet to adjust to complaints arising from a CBA. Duty to bargain when there is already a CBA consists of: 1. Not to terminate the existing CBA 2. Not to modify the existing CBA 3. Either party can serve a written notice to terminate or modify the agreement at least 60 days prior to its expiration. 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. Automatic Renewal Clause if unchallenged, the majority status of the existing bargaining unit should be respected. The PCE should be filed with, not before or after, the 60-day freedom period. If there is no PCE filed, the employer is duty-bound to continue to recognize the majority status of the incumbent bargaining agent. Negotiation of a new CBA between the employer and the incumbent also commences during the 60-day period. Pending the renewal of the CBA, the parties are bound to keep the status quo and to treat the terms and conditions embodied therein still in full force and effect during the 60-day period until a new agreement is reached. GENERAL MARITIME vs. SOUTH SEA Facts: The CIR directed that an election between the USUP and GSMU be held. USUP was certified as the exclusive bargaining representative. South Sea and USUP entered into a CBA, which provided that the CBA shall continue in full force and effect for 2 years from its taking effect and thereafter for another period of 2 years, unless either shall notify the other in writing of its intention to terminate the CBA as of the end of the current term. GMSU insists that this CBA was but a renewal of the CBA between the USUP and South Sea entered into sometime in 1955. More than 2 years after the holding of the last certification election, GMSU filed a PCE. USUP filed a motion for dismissal claiming that there was an existing CBA between itself and the Shipping Line, and that the existence of such CBA barred another certification election. Held: The contract between the USUP and South Sea had expired on June 28, 1959, and that the same had not been renewed. USUP stated that the CBA involved, executed on July 28, 1957, was automatically renewed for a period of two years from July 28, 1959 to July 28 1961, pursuant to the automatic renewal clause, for the reason that neither party notified the other in writing not less than sixty days prior to the expiration date, of its desire to terminate the agreement. So, it would

13 appear that the contract will still be effective up to July 28, 1961, that is to say, about a year from today. Inasmuch as there has been a renewal of the CBA for another two years and because it seems that the present agreement is but a renewal of the one entered into way back in 1955, it is advisable that a new certification election be held. 4. All other provisions of the CBA shall be renegotiated not later than 3 years after its execution. Any agreement on such other provisions of the CBA entered into within 6 months from the date of expiry of the term of such other provisions as fixed in such CBA, shall retroact to the day immediately following such date. If any such agreement is entered into beyond 6 months, the parties shall agree on the duration of retroactivity thereof. (Article 253-A) Exception to 1 and 2. Lifetime of CBA 5 years reckoned from the effectivity of the CBA Representation aspect identity and majority status of the bargaining agent that successfully negotiated the CBA as the exclusive bargaining agent of the employees in the appropriate bargaining unit concerned. Renegotiation of all provisions other than representation aspect After the lapse of 3 years of the 5-year lifetime of the CBA, there can be a re-negotiation but it must only pertain to the terms and conditions of the parties relationship for the remaining 2 years. It may be invoked by either party as a matter of right. The phrase all other provision refers to all the provisions in the CBA whether they are in economic or non-economic in nature. The only item exempted therefrom is the representation status of the incumbent bargaining agent, which may only be questioned during the 60-day freedom period. Economic provisions terms and conditions with a monetary value. Political provisions refer to those which define the coverage of the CBA and recognize the collective bargaining agent as the exclusive representative of the employees for the term of the CBA; include the provisions relating to the general administration such as divisions of authority and responsibility between the management and the employees, or worker's participation in decision making bodies, or powers to challenge the decisions taken by management. The phrase not later than three years means that all the provisions in the CBA other than the representation aspect may be re-negotiated before the end of the third year of the CBA. The re-negotiated CBA must be registered with the same Regional Office where the preceding agreement was registered. Note: The law did not give a fixed term as to the effectivity of the terms and conditions of employment. The parties are free to stipulate for a longer period than the three years. They can even stipulate on a fiveyear straight term coincidental with the five-year lifetime of the CBA. After the lapse of the three years, there need not be any re-negotiation of the terms and conditions of the CBA. GENERAL MILLING vs. CA Facts: GMC employed 190 workers in its two plants, all of whom were members of GMC-ILO. GMC and the union concluded a CBA, which included the issue of representation effective for a term of three years. The CBA was effective for 3 years. A day before the expiration of the CBA, the union sent GMC a proposed CBA, with a request that a counter-proposal be submitted within 10 days. As early as October 1991, however, GMC had received collective and individual letters from workers who stated that they had withdrawn from their union membership, on grounds of religious affiliation and personal differences. Believing that the union no longer had standing to

negotiate a CBA, GMC did not send any counter-proposal. GMC dismissed a union member on the ground of incompetence. The union protested and requested GMC to submit the matter to the grievance procedure provided in the CBA. GMC denied the unions request. Thus, the union filed a complaint against GMC. Held: (1) Duty to bargain collectively When the union requested for a renegotiation of the CBA, it was still the certified bargaining agent because it was seeking said renegotiation within 5 years from the date of effectivity of the CBA. The unions proposal was also submitted within the prescribed 3-year period from the date of effectivity of the CBA, albeit just before the last day of said period. It was obvious that GMC had no valid reason to refuse to negotiate in good faith with the union. Under Article 252, both parties are required to perform their mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement. The union lived up to this obligation when it presented proposals to GMC within 3 years from the effectivity of the original CBA. But GMC failed in its duty. (2) CBA Imposed Lock, Stock and Barrel on GMC Parties must keep the status quo while they are still in the process of working out their respective proposal and counter proposal. The general rule is that when a CBA already exists, its provision continues to govern the relationship between the parties, until a new one is agreed upon. Since it was GMC which violated the duty to bargain collectively, based on Kiok Loy and Divine Word, it had lost its statutory right to negotiate or renegotiate the terms and conditions of the draft CBA proposed by the union. Thus, by imposing on GMC the provisions of the draft CBA proposed by the union, the interests of equity and fair play were properly served and both parties regained equal footing, which was lost when GMC thwarted the negotiations for new economic terms of the CBA. Retroactivity of the CBA CBA voluntarily concluded by the parties 1. Effectivity of the CBA shall retroact to the day immediately after the date of expiry of the old CBA in case the new CBA is conducted and entered into within the 6 months from said expiry date. 2. If the new CBA is entered into beyond 6 months from the expiry date of the old CBA, the parties are given the right to negotiate the duration of the retroactivity thereof. CBA concluded through an arbitral award When the parties submit the resolution of the issues of the CBA to compulsory or voluntary arbitration, the rule on retroactivity does not apply. Deadlock in CBA Negotiations In case of deadlock in the negotiation or re-negotiation, the parties may exercise their respective rights under the Labor Code: 1. Submission of the deadlocked issue to the NCMB; 2. Declaration and staging of strike by the union or lockout by the employer; 3. Referral of the case to compulsory or voluntary arbitration.

14 Abridgement of the right to self-organization is not only considered unlawful but treated as an act of unfair labor practice a higher offense which is deemed not only as a violation of the civil rights of both labor and management but also as a criminal offense against the State which is subject to prosecution and punishment. Unfair Labor Practice means any unfair labor practice as expressly defined by the Code, referring to the acts enumerated in Articles 248 and 249. The act complained of must have a proximate and causal connection with the exercise of the employees right to self-organization and collective bargaining. Parties who may commit ULP: 1. Employer officers, agents of corporations, associations or partnerships who participated in or authorized or ratified ULP 2. Labor organization officers, members of the governing boards, representatives or agents or members of the labor associations or organizations who have actually participated in or authorized or ratified the ULP Note: A party not impleaded as a party to the case cannot be held liable Elements of ULP: 1. There should exist an employer-employee relationship between the offended party and the offender; 2. The act complained of must be expressly mentioned and defined in the Labor Code Other than those mentioned in Articles 248 and 249, other ULPs in the Labor Code are: 1. Gross violations of a CBA which means the flagrant and malicious refusal to comply with its economic provisions. If relating to noneconomic provisions, the same shall no longer be treated as ULP but as mere grievances which must be resolved in accordance with the grievance machinery and voluntary arbitration provision of the CBA. 2. Union-busting dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, where the existence of the union is threatened. Aspects of unfair labor practice: 1. Civil aspect claims for actual, moral and exemplary damages, attorneys fees and other affirmative reliefs; exclusive and original jurisdiction belongs to Labor Arbiters, except: a. When the Secretary of Labor exercises the power vested in them under Articles 263 and 264 assumption of jurisdiction or certification to the NLRC of national interest disputes; b. When the parties mutually agree to submit the issue of ULP to the voluntary arbitrator or panel of voluntary arbitrators. Note: Once you recover civil liability under the Labor Code, the same shall operate to bar recovery for the same civil liability in the Civil Code. 2. Criminal aspect it may only be instituted after a final judgment finding that a ULP was indeed committed, is obtained in the administrative proceedings. Absent final judgment, no criminal prosecution may be instituted.

UNFAIR LABOR PRACTICES Article 246. Non-abridgment of right to self-organization. It shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with employees and workers in their exercise of the right to self-organization. Such right shall include the right to form, join, or assist labor organizations for the purpose of collective bargaining through representatives of their own choosing and to engage in lawful concerted activities for the same purpose or for their mutual aid and protection, subject to the provisions of Article 264 of this Code.

Prescriptive period General Rule: 3 years for all offenses penalized under the Labor Code Exception: For ULP to be filed with the appropriate agencies, one year from accrual. Compromise Generally, ULPs are not subject to compromise. However, at times, compromise can be allowed because of the policy of the State to promote the settlement of differences between labor and management by mutual agreement.

UNFAIR LABOR PRACTICES OF EMPLOYERS According to the Supreme Court, the list of ULP committed by employer under Article 248 is not exhaustive. There are many other ways to commit ULP, provided it is under interference, restraint or coercion. (a) To interfere with, restrain or coerce employees in the exercise of their right to self-organization Test of interference, restraint or coercion Whether an employer has engaged in conduct which may reasonably tend to interfere with the free exercise of the employees rights. It is not necessary that there be direct evidence that any employee was in fact intimidated or coerced by the statements or threats of the employer if there is a reasonable inference that the anti-union conduct of the employer does have an adverse effect on the exercise of the right to self-organization and collective bargaining. Totality of conduct doctrine expression of opinion by an employer, though innocent in themselves, may be held to constitute ULP (1) because of the circumstances under which they were uttered, (2) the history of the particular employers labor relations or anti-union bias, or (3) because of their connection with an established collateral plan of coercion or interference. An expression which may be permissibly uttered by one employer, might, in the mouth of a more hostile employer, be deemed improper and consequently actionable as ULP. GENERAL MILLING vs. CA For refusing to send a counter-proposal to the union and to bargain anew on the CBA, the company committed ULP. 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 10 calendar days from receipt of such notice. GMCs failure to make a timely reply to the proposals presented by the union is indicative of its utter lack of interest in bargaining with the union. Its excuse that it felt the union no longer represented the workers, was mainly dilatory as it turned out to be utterly baseless. Failing to comply with the mandatory obligation to submit a reply to the unions proposals, GMC violated its duty to bargain collectively, making it liable for ULP. Forced retirement not ULP when provided in the CBA Closure ULP when done in bad faith for the purpose of circumventing the unions right to collective bargaining and its members right to security of tenure. Transfer of assignment not ULP absent any showing or indication that the transfer orders were motivated by an intention to interfere with the employees right to organize. Without the act being related to the employees right to self-organization and observance of the CBA, such act, no matter how unfair, is not ULP. Employers Rules on Solicitation No employee can campaign his coemployees to join a union during working hours within the company. The employer may provide for a rule wherein during working hours within premises of the company, there can be no union solicitation. No solicitation rule covering all working hours and the entire employers premises are considered overly broad. If you are in neutral areas within the company premises, you cannot be prevented from soliciting. Therefore, in this case there is ULP. However, evidence may be received to prove it is justified by legitimate employer goals or business aims. MARIANO vs. ROYAL INTEROCEAN LINES Mariano was a stenographer-typist and filing clerk of respondent when she was dismissed from work. Mariano sought reconsideration of her dismissal from the managing directors in HK but received no answer to any of her 5 letters. The company finally offered a compromise settlement with

15 the petitioner whereby she would be paid a sum equivalent to 6 months salary, provided that she would sign a quitclaim embodying a provision that she would release the company from any liability arising from her employment. Not satisfied with the compromise, the petitioner filed a complaint for ULP against the company. The company was not guilty of ULP in dismissing Mariano. As the companys dismissal has no relation to union activities and the charges filed by her against respondent had nothing to do with or did not arise from her union activities, the dismissal did not constitute ULP. Despite the employees right to self organization, the employer still retains his inherent right to discipline employees, his normal prerogrative to hire or dismiss them. In this case, the dismissal of the employee was unjustified, but the employer did not commit ULP because the act has no union connection. DABUET vs. ROCHE PHARMACEUTICALS Facts: Petitioners, all officers of the Roche Labor Union, wrote the company expressing their grievances and seeking formal conference with management regarding the previous dismissal of the union s president and vice-president. At the meeting, instead of discussing the problems affecting the labor union and management, the companys general manager allegedly berated the petitioners for writing the said letter and called the letter and the person who prepared it stupid. Feeling that he was the one alluded to, since he had prepared the letter, the counsel for the labor union filed a case for Grave Slander against the general manager. The charge was based on the affidavit executed by the petitioners. In turn, the company and the manager filed a complaint for Perjury against petitioners alleging that their affidavit contained false statements. The company construed the execution by petitioners of the affidavit as an act of breach of trust and confidence. Hence, they were suspended and later on dismissed. Held: The company, in terminating the employment of the petitioners without just and lawful cause, committed ULP. The employees' dismissal, under the circumstances, amounted to interference with, and restraint or coercion of, the petitioners in the exercise of their right to engage in concerted activities for their mutual aid and protection. Breach of trust and confidence, the grounds alleged for petitioners' dismissal, must not be indiscriminately used as a shield to dismiss an employee arbitrarily. JUDRIC CANNING vs. INCIONG The employees of the company, who are members of ULGWP, were dismissed by the company. The employees were allegedly not allowed to report for work due to their union activities in soliciting membership in a union yet to be organized in the company. The company denied having locked out the employees and claims that the said employees failed to report for work and abandoned their positions. The SC found out that it would be illogical for the employees to abandon their works and then immediately file an action seeking their reinstatement. Moreover, there was no reason at all and none has been suggested by the company, for the employees to abandon their work. The fact that the company offered to pay the union members severance pay of one month, is a clear admission of the charge of arbitrary dismissal, for why should the petitioner offer to pay what it calls "severance pay" if the employees were not, indeed, dismissed. Furthermore, the employees were dismissed or their services were terminated, because they were soliciting signatures in order to form a union within the plant. Thus, the company is clearly guilty of ULP in interfering with the formation of a labor union. CLLC E.G. GOCHANGCO vs. NLRC Several employees sought permission from management to attend a pre-certification election conference before the med-arbiter, which was to be conducted the day after. The management did not grant such permission but the employees nevertheless attended the conference. A day thereafter, an order of suspension was imposed upon said employees, which led to their subsequent dismissal on the ground of abandonment of work.

There was no valid dismissal. The petitioners were in the middle of a certification election preliminary when the order of termination was imposed. The exercise of a certification election was well within the petitioners right to which the company cannot interfere. The termination order was a clear effort of the management to punish the petitioners for their union duties. CRUZ vs. PAFLU The workers in a factory formed a union which they duly registered with DOLE. The company claimed to have an existing CBA with another union PTGWO, a claim which resulted in holding a certification election where PAFLU won. As PAFLU finalized the CBA with the management, the factory was sold to Cruz and as a result thereof, members of PAFLU were dismissed. The sale of the factory was ULP. The sale of a business enterprise to avoid the legal consequences of ULP is necessarily attended with bad faith and both the vendor and the vendee continue to be liable to the affected workers. Even if Cruz was only the buyer who purports to have entered the sale in good faith, he cannot escape liability as being the successor-in-interest; he becomes responsible for the obligations of his predecessor. INSULAR LIFE ASSURANCE vs. INSULAR LIFE The company president sent individual letters to striking employees urging them to abandon their strike in exchange for comfortable cots, free coffee, occasional movies, overtime pay, offer of a Christmas bonus and other benefits. He also warned them that whoever fails to return to work shall be replaced. When the strike was over, those who went with the strike were no longer admitted back to work. The letter constitutes interference. Under the totality of conduct doctrine, the letters should be read in light of the preceding and subsequent circumstances. There is interference as in this case, where the employer engaged in a conduct which may reasonably interfere with the free exercise of employees rights. This act of solicitation tends to undermine the concerted activity of the employees to which the employer had an obligation to respect. An employer operating under a CBA negotiating or attempting to negotiate with his employees individually in connection with changes in the agreement constitutes ULP. And the basis of the prohibition regarding individual bargaining with the strikers is that although the union is on strike, the employer is still under obligation to bargain with the union as the employees' bargaining representative. (b) To require as a condition of employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs Yellow Dog Contract exacts from workers as a condition of employment that they shall not join or belong to a labor organization, or attempt to organize one during their period of employment, or that they shall withdraw therefrom in case they are already members. Yellow Dog Contract embodies: 1. Representation by the employees that he is not a member of a labor organization; 2. Promise by the employee that he will not join a union; 3. Promise by the employee that upon joining a labor organization, he will quit his employment. (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 Contracting out of services and functions Generally, the act of an employer having the work of union members contracted out is not ULP, such as when there is business decline, inadequacy of facilities and equipment, reduction of cost, etc. It becomes ULP only when the contracting out of work will interfere with, restrain or coerce employees in the exercise of their right to self-organization.

16 Example: PAL issued 2600 notices to all their administrative ground personnel, that by the end of the month, they will be given their pink slip separation, and they will be paid separation benefits. The employees are members of the Philippine Airlines Employees Association (PALEA), which considers itself a national union. Now, all those ground crew are given notices. Their average separation pay is P1.2M. They are declaring a strike because according to them, it is ULP that they will be terminated, invoking Article 248 (c). They are saying that their job is necessary and they are being replaced and going to be contracted out. The Court held that if positions have been vacated by a valid termination with benefits, the same positions can be contracted out without violating Article 248 (c), as long as they are not desirable and necessary to the usual trade or business of the employer. In an airline company, pilots cannot be contracted out because their position is desirable and necessary to the usual trade of the employer. But administrative ground personnel such as those in the ticketing and checking in of luggage, those are not regular positions because they are not usual and necessary to the trade or business of the employer. (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 Company union The formation, function or administration has been assisted by any act defined as ULP. The employer is not engaged in assisting a union as a company union if the specific assistance is provided in the CBA, which is called the General Assistance Clause. KAPISANAN vs. HAMILTON Facts: There are two labor unions, Kapisanan and Hamilton Workers' Union. The latter and the Company entered into a CBA. The Company issued a notice addressed to all of its employees, giving non-members of the Workers' Union 30 days within which to join the same, or else, be dismissed. Upon learning that the NAFLU was being organized, Co Bon Beng, the superintendent of the Company, sent a letter to Francisco Dumlao, and inquired whether it was true that he had organized said labor union. Upon receipt of an affirmative answer, Co Bon Beng urged Dumlao to dissolve the NAFLU, for otherwise he would be dismissed. When Dumlao answered that he could not follow this advice, Co Bon Beng bade him to look for another job. Co Bon Beng refused to admit him to work, upon the ground that he was unwilling to dissolve the NAFLU. Subsequently, some members thereof resigned therefrom and joined the Workers' Union, because otherwise they would be dismissed by the Company. The dismissed employees filed a complaint for ULP. Held: The CBA had been made fraudulently. The Workers' Union was, if not company dominated, at least organized under the patronage of the Company, and that the same was in such a hurry to bargain with the Workers' Union in order to beat NAFLU and prevent it from taking action prior thereto. Despite several defections from NAFLU prior to the expiration of the period given by the Company to non-members of the Workers' Union, the Company had to dismiss members of the NAFLU, apart from its president, for failure to join the Workers' Union within said period. The dismissal of members of the NAFLU who had failed and refused to join the Workers' Union constitutes ULP. The provisions of the CBA do not legalize the dismissal of members of the NAFLU. It is well-settled in this jurisdiction that, in the absence of a manifest intent to the contrary, "closed shop" provisions in a CBA apply only to persons to be hired or to employees who are not yet members of any labor organization, and that said provisions of the agreement are not applicable to those already in the service at the time of its execution. (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. (1st sentence)

Discrimination failure to treat all persons equally when no reasonable distinction can be found between those favored and those not favored. There is discrimination only when one is denied privileges which are granted to other under similar conditions and circumstances. Before a claim for discrimination can prosper, it must be established: (a) First, there is no reasonable distinction or classification that can be obtained between persons belonging to the same class; and (b) Second, persons belonging to the same class have not been treated alike. Note: Discrimination per se is not unlawful. There is no discrimination where the employees concerned are not similarly situated. Discrimination vs. Classification Discrimination is considered ULP, while classification merely differentiates the employees in accordance with their respective jobs and accords them the appropriate levels of pay or benefits due them by reason thereof. How would you know that such discriminatory act is ULP? For discrimination to be considered a ULP, the same must have been committed to encourage or discourage such membership in the union. WISE AND CO. vs. WISE AND CO. EMPLOYEES UNION Facts: The management introduced a profit-sharing scheme for its managers and supervisors. The Union wrote management to ask that the union members be allowed to participate in the profit-sharing program. The management denied the request on the ground that such participation was not provided in the CBA. When renegotiation of the CBA was approaching, the management wrote to the Union that it was willing to consider including the union members in the profits haring scheme provided that the negotiations would be concluded prior to December 1987. Sometime later, the company distributed the profitsharing benefit not only to the managers and supervisors but also to all rank-and-file employees not covered by the CBA. This caused the Union to file a notice of strike alleging that the company was guilty of ULP because the union was discriminated against in the grant of the profit sharing benefits. Held: Granting of benefits to non-union member employees is not discriminatory against its workers who are union members. There can be no discrimination committed by petitioner as the situation of the union employees is different from the non-union employees. Discrimination per se is not unlawful. There can be no discrimination where the employees concerned are not similarly situated. The grant by the company of profit sharing benefits to employees outside the "bargaining unit" falls under the ambit of its managerial prerogative. It appears to have been done in good faith and without ulterior motive. 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. (2nd sentence) Union security clause stipulations in the CBA that allows the parties to enter into an agreement requiring membership in the exclusive collective bargaining agent which successfully negotiated said CBA as a condition for continued employment with the exception of employees who are already members of another union at the time of the signing of the CBA. The purpose of this clause is to safeguard and ensure the unions continued exercise and to strengthen and protect it from the fickleness or perfidy of its own members. Without this clause, the existence of the union is always subject to uncertainty as its members may resign anytime resulting in the decimation of its ranks.

17 Union security Any other form of agreement which imposes upon employees the obligation to acquire or retain union membership as a condition affecting their continued employment. It is a means of encouraging workers to join and support the union of their choice in the protection of their rights and interests. Note: Employees may or may not join a union. No law requires mandatorily that the union security clause be included in the CBA. Classification of Union Security Clauses 1. Open Shop Clause Management and union agree that the work place will be open to hire or engage any worker whether or not he or she is a member of the union. Membership of the union is not a condition upon hiring or engaging an employee. This is equivalent to not having a union security clause in the CBA. 2. Closed Shop Agreement An enterprise in which, by agreement between the employer and its 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. It stipulates the undertaking by the employer not to hire or employ any person who is not a member of the bargaining union. Once employed, it is required that the said person should remain a member of the bargaining union in good standing as a condition for continued employment, at least during the whole duration of the CBA. Closed shop is not a restriction on the freedom of association. In fact, it upholds the principle of sanctity or inviolability of contracts guaranteed by the Constitution. Closed shop agreement applies to employees who are not members of the bargaining agent at the time the CBA is entered into. Employees can be obliged by their employer to join the labor union which has entered into a CBA as a condition for their continuance in their employment; otherwise, their refusal to join would constitute a justifiable basis for their dismissal. Closed shop agreement does not apply to members of other unions at the time of the signing of the CBA. If an employee is already a member of a labor union different from the exclusive bargaining agent, said employee cannot be obliged to become a member of the bargaining union as a condition for his continued employment. 3. Union Shop Agreement The employer is given the freedom to hire and employ any person who is not a member of the bargaining union. Once such person becomes an employee, he is required to become a member of the bargaining union and to remain as such member in good standing for the whole period of the effectivity of the CBA as a condition of his continued employment. Thus, there is union shop when all new regular employees are required to join the union within the period of the CBA as a condition for continued employment. 4. Modified Union Shop Agreement Employees who are not union members at the time of the execution of the CBA are not required to join the bargaining union. However, any and all workers hired or employed after the execution of the CBA are required to join the bargaining union. 5. Maintenance of Membership Agreement Employees who are not members of the bargaining union at the time of the execution of the CBA, and those hired after its execution, are not bound to become members of the bargaining union, but it simply stipulates that (1) those who are its members at the time of the execution of the CBA and (2)

those who may, after its execution, on their own, voluntarily join the bargaining agent, should maintain their membership in good standing therein for the whole duration of the CBA as a condition for continued employment. 6. Exclusive Bargaining Agent Agreement The bargaining union which concluded the CBA with management is considered and recognized as the sole and exclusive bargaining agent of all the covered employees in the bargaining unit, whether they be members or not of the said agent. 7. Bargaining for Members Only Agreement The union which concluded the CBA with management is recognized as the bargaining agent only for its own members. 8. Agency Shop Agreement There is no requirement for nonmembers of the bargaining union to become its members. However, it is required that such non-union members should pay to the bargaining union an agency fee as a condition for their continued employment. 9. Preferential Hiring Agreement The employer gives preference in hiring to the members of the bargaining agent under equal circumstances and qualifications. Once hired or employed, they are required to maintain their membership in good standing in the bargaining agent for the duration of the CBA for their continued employment. Union security clause is a contractual limitation on the right to selforganization. If there is a doubt on the union security clause, the doubt should be resolved against labor because they are in derogation of the right to self-organization. Dismissal Based on Union Security Clause valid and not ULP. However, it must be stressed that such agreement does not justify the request by the union to dismiss an employee whom it arbitrarily refused to admit as member. Unions are not entitled to arbitrarily exclude qualified applicants for membership. The employer, upon demand of the union for the dismissal of the employees, must conduct its own inquiry on the factual and legal bases of such demand in order to satisfy itself that there exists sufficient basis to dismiss the employees. The employer is not duty-bound to immediately implement the recommendation of the union. It must conduct its own independent hearing and separate from any hearing conducted by the union. Substantial due process must still be observed as a means of ensuring that the security of tenure of the employees in not infringed. The right of an employee to be informed of the charges against him and to a reasonable opportunity to present his side in a controversy with either the company or his own union is not wiped away by a union security clause or a union shop clause in a CBA. BPI vs. BPI UNION FEBTC employees were absorbed by BPI. The union shop clause in the BPI CBA provides that new employees who may hereafter be regularly employed by BPI shall, within 30 days after they become regular employees, join the union as a condition of their continued employment. Otherwise, the union can ask BPI to terminate these employees. This clause covers the employees of FEBTC absorbed by BPI, but the employees who do not join the union are entitled to procedural due process before their employment is terminated. Specifically, they are entitled to notice and hearing. Although it is accepted that non-compliance with a union security clause is a valid ground for an employees dismissal, jurisprudence dictates that such a dismissal must still be done in accordance with due process.

18 BPI argues that the former FEBTC employees who were absorbed by BPI as regular employees should not be considered as new employees of BPI. Such argument is erroneous because it would defeat the purpose of a union shop clause under Labor Laws. The ordinary meaning of the terms of the Union Shop Clause covers employees who (a) enter the employ of BPI during the term of the CBA; (b) are part of the bargaining unit (defined in the CBA as comprised of BPIs rank and file employees); and (c) become regular employees without distinguishing as to the manner they acquire their regular status. Indeed, there are differences between (a) new employees who are hired as probationary or temporary but later regularized, and (b) new employees who, by virtue of a merger, are absorbed from another company as regular and permanent from the beginning of their employment with the surviving corporation. It bears reiterating here that these differences are too insubstantial to warrant the exclusion of the absorbed employees from the application of the Union Shop Clause. TANDUAY vs. NLRC Tanduay and TDLU entered into a CBA where part of such agreement provides as a condition for continued employment, members must maintain good standing membership in the union. Later some members joined KAMPIL (another union) and asked for representation in Tanduay. TDLU demanded explanation from erring members as to their act and were later terminated by Tanduay as request by TDLU. Such termination was valid. The employer just put the agreement in force. Although members are entitled to disaffiliation, to form a new organization of their own, must, however, suffer the consequences of their separation from the union under the security clause of the CBA. GENERAL MILLING vs. CASIO In terminating the employment of an employee by enforcing the union security clause, the employer needs only to determine and provide that: (1) The union security clause is applicable; (2) The union is requesting for the enforcement of the union security provision in the CBA; and (3) There is sufficient evidence to support the decision of the union to expel the employee form the union. These requisites constitute just cause for terminating an employee based on the union security clause of the CBA. In the present case, the CBA between GMC and IBM-local 31 included maintenance of membership and closed shop clause as can be gleaned from sections 3 and 6 of Article II. IBM-local 31, by written request, can ask GMC to terminate the employment of the employee/worker who failed to maintain its good standing as a union member. MALAYANG SAMAHAN SA GREENFIELD vs. RAMOS Facts: MSMG had a union security clause provision on their CBA with M. Greenfield Inc. MSMG was an affiliate of ULGWP. MSMG held a general membership meeting but many did not attend. As such, they were fined with P50 by the union. MSMG wrote to the company saying that they deduct the P50 from the employees salaries. ULGWP opposed and wrote the company. The company did not deduct. The imposition of P50 fine became the subject of bitter disagreement between ULGWP and MSMG culminating in the latter's declaration of disaffiliation. The officials of ULGWP called a Special National Executive Board Meeting where a Resolution was passed placing the MSMG under trusteeship and appointing an administrator. This action by ULGWP was protested by MSMG. MSMG officers received letters from the administrator requiring them to explain within 72 hours why they should not be removed from their office and expelled from union membership. ULGWP advised the company of the expulsion of the 30 union officers and demanded their separation from employment pursuant to the Union Security Clause. The company at first refused but later, when the ULGWP declared a strike against them, they subsequently agreed. Held: MSMGs disaffiliation was not an act of disloyalty to ULGWP. A local union has the right to disaffiliate from its mother union. A local union, being a separate and voluntary association, is free to serve the

interests of all its members including the freedom to disaffiliate or declare its autonomy from the federation to which it belongs when circumstances warrant, in accordance with the constitutional guarantee of freedom of association. Such disaffiliation cannot be considered disloyalty. In the absence of specific provisions in the federation's constitution prohibiting disaffiliation of a local union, a local may dissociate with its parent union. There is no such provision in ULGWP's constitution. Thus, there is no disloyalty to speak of, neither is there any violation of the federation's constitution because there is nothing in the said constitution which specifically prohibits disaffiliation. Hence, there cannot be any valid dismissal because the union security clause limits the dismissal to only 3 grounds, to wit: failure to maintain membership in the union (1) for nonpayment of union dues, (2) for resignation; and (3) for violation of the union's Constitution and By-Laws. Note: In Malayang Samahan vs. Ramos, the duty of management is only to determine whether or not the union conducted an investigation according to the by-laws. But in General Milling vs. Casio, there must be sufficient evidence. SALUNGA vs. CIR Facts: Salunga was the former president of a union in San Miguel Corp. There was this election and Salunga was not elected, so there was a new set of union officers. Salunga wrote a letter of resignation to the union. Thereafter, the Personnel Director of San Miguel called him and reminded him of the union security clause providing that once he is expelled from the union, the union can compel management to terminate him from his employment. So he wrote another letter withdrawing his resignation from the union. The Union officers said it is already too late because they have accepted his resignation. Thereafter, the union wrote management that pursuant to the union security clause of the CBA, Salunga should be terminated by San Miguel. San Miguel terminated him. Salunga filed an illegal termination case. Held: When Salunga wrote a subsequent letter withdrawing his resignation, even if the resignation was already accepted, that withdrawal can be considered as a letter of application to be a member again of the union. The union is free to determine the criteria of its membership. There should be no influence from any other side. However, once a union has an agreement with management on any union security agreements, membership in the union becomes replete with public interest and is no longer the sole prerogative of the union. Consequently, it is well settled that such unions are not entitled to arbitrarily exclude qualified applicants for membership, and a closedshop provision would not justify the employer in discharging, or a union in insisting upon the discharge of an employee whom the union thus refuses to admit to membership, without any reasonable ground therefor. Salunga is reinstated with full backwages, but not to be paid by San Miguel because it was in good faith. It is the union which will pay the full backwages of Salunga. TROPICAL HUT EMPLOYEES vs. TROPICAL HUT Facts: Employers of Tropical Hut organized THEU and sought affiliation with NATU. Registration certificate was issued but NATU itself was not registered as a federation. CBA was concluded between the parties. THEU wrote NATU saying they want to disaffiliate from the federation. THEU affiliated with CGW. THEU-CGW conducted elections and Encinas won. NATU requested Tropical Hut to dismiss Encinas because of violations. Tropical Hut suspended Encinas pending application for clearance with the DOLE to dismiss him. THEU-CGW members protested. Upon request of NATU, Tropical Hut also suspended and applied for clearance to dismiss members and officers of THEU-CGW. Held: There is no merit in the contention of the NATU that the act of disaffiliation violated the union security clause of the CBA and that their

19 dismissal as a consequence thereof is valid. A perusal of the CBA shows that the THEU-NATU, and not the NATU federation, was recognized as the sole and exclusive collective bargaining agent. Although NATU was designated as the sole bargaining agent in the check-off authorization form attached to the CBA, this simply means it was acting only for and in behalf of its affiliate. NATU possessed the status of an agent while the local union remained the basic principal union. The dismissal was illegal. The union security clause embodied in the agreements cannot be used to justify the dismissals. CBA imposes dismissal only in case an employee is expelled from the union for joining another federation, or for forming another union, or who fails or refuses to maintain membership therein. The case at bar does not involve the withdrawal of merely some employees from the union but of the whole THEU itself from its federation. Requisites for Valid Termination based on Union Security Clause: 1. Union security clause is applicable; 2. The union is requesting for the enforcement of the union security clause in the CBA; and 3. There is sufficient evidence to support the unions decision to expel the employee from the union. CONFEDERATED SONS OF LABOR vs. ANAKAN LUMBER Facts: 46 employees of the company and members of United Workers' Union joined Confederated Sons of Labor, which is another labor organization. Said 46 employees were expelled from United Workers' Union and the said union demanded from the company the dismissal of these 46 employees, upon the authority of Article II of their "Collective Bargaining and Closed Shop Agreement". Claiming to act in pursuance of such Article II and in compliance with the agreement, the company dismissed said 46 employees. Held: Article II of the CBA does not establish a 'closed shop," except in a very limited sense, namely, that the employees engaged by the company after the signing of the agreement must be members of respondent union. The CBA does not affect the right of the company to retain those already working therefor on or before its execution, or those hired or employed subsequently thereto, while they were members of the union, but who, thereafter, are expelled therefrom. In order that an employer may be deemed bound, under a CBA, to dismiss employees for non-union membership, the stipulation to this effect must be clear and unequivocal as to leave no room for doubt thereon. Doubts must be resolved against the existence of "closed shop". If the union security clause provides "continued membership in the union is a condition for continued employment," does that mean that any employee expelled from the union shall also be terminated from employment? No, if it lacks such specific provision. There must be an explicit clause providing for such condition. Take note that in case of textual doubt, it is not interpreted in favor of labor. Remedy of Illegal dismissal Full backwages and reinstatement. If reinstatement is not viable, separation pay to the illegally dismissed employee in lieu of reinstatement; the amount to be awarded shall be equivalent to one month salary for every year of service. Non-application of union security clause: 1. To employees who are already members of another union by the time the union security clause is entered into Example: Union X and Union Y are candidates for certification election. Union X loses and Union Y wins. Union Y enters into a closed shop agreement with management. Thus, from its execution, no one can be employed until he/she becomes a member of union Y; and continued membership is a condition for continued employment. If an employee is expelled from Union Y, the latter has the right to compel management

to terminate you. Members of Union X cannot be expelled because they have already exercised their right to self-organization. The members of Union X will only pay agency fee in accordance with the Agency Shop. 2. R.A. No. 3350 which provides that a union security clause shall not cover members of any religious sects which prohibit affiliation of their members in any labor organization. REYES vs. TRAJANO BLR authorized the conduct of certification election among the employees of Tri-Union. The competing unions were the TUEUOLALIA and TUPAS. Of the 384 workers initially deemed to be qualified voters, only 240 actually took part in the election. Among the 240 who cast their votes, 141 were members of the Iglesia ni Kristo. The challenged votes were those cast by the 141 INK members. The INK employees protested the exclusion of their votes. The SC held that the INK members may vote in the certification election. The SC held that the right to form or join a labor organization necessarily includes the right to refuse or refrain from exercising said right. The fact that a person has opted to acquire membership in a labor union does not preclude his subsequently opting to renounce such membership. That the INK employees, as employees in the same bargaining unit in the true sense of the term, do have the right of selforganization, is also in truth beyond question, as well as the fact that when they voted that the employees in their bargaining unit should be represented by "NO UNION," they were simply exercising that right of self-organization, albeit in its negative aspect. 3. During the 60-day freedom period, any individual in the bargaining unit can now form his own union or is now free to support any union. He can file a petition for certification election for another union. 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 nonunion members accept the benefits under the collective bargaining agreement: Provided, that the individual authorization required under Article 242 (o) of this Code shall not apply to the non-members of the recognized collective bargaining agent. (3rd sentence) Agency Fee dues and other fees that may be assessed from nonmembers of the bargaining union, who accept and avail of the benefits flowing from the CBA. Check-off agency fees The employer is required to check-off from non-members the same reasonable fees equivalent to the dues and other fees normally paid by the bargaining union members without the need for individual written check-off authorization. Article 241 (o) is inapplicable to non-members of the bargaining union who receive benefits under the CBA. Note: In the 60-day freedom period, those who form another union in order to participate and ask for a certification election cannot demand that the bargaining union can no longer deduct union dues from them because they have their own union now. For as long as you are the exclusive bargaining agent, you have the right to be paid union dues or agency fees. (f) To dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code This is the only ULP that need not be related to the exercise by the employees of their right to self-organization and collective bargaining. Article 248 (f) distinguished from Article 118

20 1. In Article 118, it is giving a testimony or about to give a testimony on any proceeding under Labor Standards. If you discriminate against an employee because he has testified on a Labor Standards Case, then you are penalized as an employer under Article 118. But if you dismiss an employee because you do not agree with the way he exercises his right to self-organization, then that is ULP dismissal under 248 (f). 2. The prescriptive period for filing dismissal under Article 118 is 4 years because ordinary illegal dismissal prescribes in 4 years. The prescriptive period to file a case complaining against ULP dismissal is 1 year. If you cannot file a case within 1 year, you can still file an ordinary illegal dismissal case under Article 279 (on security of tenure) because a ULP dismissal is a dismissal without any just cause. 3. A ULP dismissal may be converted to an ordinary dismissal suit. But an ordinary dismissal suit under Articles 118 or 279 cannot be converted to a ULP dismissal. 4. Under Article 248 (f), the illegal dismissal can give rise to criminal liability because ULP can be converted to a criminal prosecution. This not the case in Article 118. MABEZA vs. NLRC Employer asked Mabeza and her co-employees to sign a statement that they were receiving legal wage but when asked to swear it before the prosecutor, the latter refused. The employer asked the employee to surrender the keys to the quartersand dismissed said employee, charging her withabandonment and stealing company property. There was ULP. There was evident bad faith and deliberate malice on the employees' summary termination from employment. The act of compelling employees to sign an instrument indicating that the employer observed labor standards provisions of law when he might have not, together with the act of terminating or coercing those who refuse to cooperate with the employer's scheme constitutes ULP. The first act clearly preempts the right of the hotel's workers to seek better terms and conditions of employment through concerted action. In not giving positive testimony in favor of her employer, petitioner had reserved not only her right to dispute the claim and proffer evidence in support thereof but also to work for better terms and conditions of employment. CBA-related ULP (g) To violate the duty to bargain collectively Duty to Bargain Collectively devolves upon both the employer [Article 248(g)] and labor organization [Article 249 (c)]. It is 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 make any concession. The employers duty to bargain collectively exists only with the exclusive bargaining agent. The employers act of negotiating with individual members of the union is ULP. The failure of the employer to submit counter-proposals to the demands of the bargaining union does not, by itself, constitute refusal to bargain. If the employer refuses to submit an answer or reply to the written bargaining proposals of the certified bargaining union, there is ULP. While the law does not compel the parties to reach an agreement, it does contemplate that both parties will approach the negotiation with an open mind and make a reasonable effort to reach a common ground of agreement. Surface Bargaining going through the motions of negotiating without any legal intent to reach an agreement. It involves the question whether an employers conduct demonstrates an unwillingness to

bargain in good faith or is merely hard bargaining. It must be emphasized that the duty to bargain does not compel either party to agree to a proposal or require the making of a concession. Blue-sky Bargaining making exaggerated or unreasonable proposals. Refusal to furnish financial information ULP; an inference of surface bargaining. However, it is not ULP if the request was not put in writing. Note: Approval or signing of the CBA does not mean that the union waives its claim for ULP during the past negotiation. FILIPRO vs. NESTLE The companys stand not to bargain is as legitimate as the stand of the union that is bargaining, provided the employer continues to address the issue and continue to bargain. (h) To pay negotiation or attorneys fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute Payment of Negotiating Fees or Attorneys Fees Negotiating fees, attorneys fees or similar charges shall be paid from the union funds. Asking for or accepting such fees from the employer as part of the settlement of any issue is ULP. Paying of the fees on the part of the employer is also ULP. Note: Giving of signing bonus is not ULP because it is given to everybody, hence, it becomes a benefit. What is prohibited is when you just give it to the union or its officers or agents. (i) To violate a collective bargaining agreement

21 Held: Resorting to a runaway shop is ULP. Ionics was not set up for the purpose of transferring the business of Complex. At the time the labor dispute arose, Ionics already existed as an independent company. It cannot, therefore, be said that the temporary closure in Complex and its subsequent transfer of business to Ionics was for anti-union purposes. There was also no illegal lockout/illegal dismissal. Lockout is the temporary refusal of employer to furnish work as a result of an industrial or labor dispute. It may be manifested by the employer's act of excluding employees who are union members. Burden of Proof The union has the burden to present substantial evidence to support its allegation of ULP committed by the employer. PICOP vs. DEQUILLA Respondents were employees of Picop and members of the NAMAPRI-SPFL. PICOP and NAMAPRI-SPFL had a CBA. Atty. Fuentes, president of SPFL, advised the PICOP management to terminate about 800 employees due to acts of disloyalty. PICOP served a notice of termination due to acts of disloyalty to 31 of the 46 employees. The employees filed ULP. There is no question that in the CBA entered into by the parties, there is a union security clause. The clause imposes upon the workers the obligation to join and maintain membership in the companys recognized union as a condition for employment. It is basic in labor jurisprudence that the burden of proof rests upon management to show that the dismissal of its worker was based on a just cause. In this case, PICOP was not able to show sufficient evidence to support the decision of the union to expel the employees from it. UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS (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 This provision is similar to Article 248 (a), except that the term interfere is not included. The labor organization, its officers, agents or representatives is granted with the unrestricted license to interfere with the exercise by the employees of their right to self-organization. (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; Discrimination committed 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. If the act of discrimination is committed by the employer [under Article 248 (e)] was instigated by the union, both the employer and the union is guilty of ULP. (c) To violate the duty, or refuse to bargain collectively with the employer, provided it is the representative of the employees; The purpose of this provision is to ensure that the union will negotiate with management in good faith and for the purpose of concluding a mutually beneficial CBA. This normally happens when a union immediately resorts to strike without giving the employer a chance to grant the request that is made by the union which the employer has no obligation to grant under the law. (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

Violations of a CBA, except those which are gross in character, shall not be treated as ULP and shall be resolved as grievances under the CBA. Gross violations of CBA mean flagrant or malicious refusal to comply with the economic provisions of such agreement. Even there is a violation of the economic provisions in the CBA, if there is an ambiguity in the CBA provisions that requires interpretation, even if it is a gross violation, cannot be a ULP violation of the CBA. This is because if it requires interpretation, there is no gross violation of the CBA. Therefore, there is no ULP. Runaway Shop An industrial plant moved by its owners from one location to another to escape union labor regulations or state laws. The term also means a plant moved to a new location in order to discriminate against employees at the old plant because of their union activities. Thus, it is a relocation motivated by anti-union animus rather than for business reasons. COMPLEX vs. NLRC Facts: The rank and file of Complex compromised the union. Complex was already incurring losses. They informed employees that it had to close down the operations of the Lite On Line. The company promised in giving the one month retrenchment pay. The Union demanded a retrenchment of 1 year month salary for every year. Complex refused. Complex filed a notice of foreclosure. The Union filed a notice of strike. Machinery, equipment and materials being used for production of Complex were pulled out from the company premises and transferred premises of Ionics. Next day, Complex closed its operation. Union filed a complaint for ULP and illegal closure/illegal lockout. The Union averred that Complex and Ionics have the same President and Board of Directors; that business has not ceased at Complex but was merely transferred to Ionics.

22 nature of an exaction, for services which are not performed or not to be performed, including the demand for fee for union negotiations; Featherbedding unduly and unnecessarily maintains or increases the number of employees used or the amount of time consumed to work for a specific job. This is done by employees to unduly secure their jobs in the face of technological advances or as required by minimum health and safety standards, among other justifications. (e) To ask for or accept negotiation or attorneys fees from employers as part of the settlement of any issue in collective bargaining or any other dispute The provision prevents undue influence by the employer on the independence of the union in its decision over any issues it may have with the former. (f) To violate a collective bargaining agreement see Article 248 (i)

END OF 2nd EXAM COVERAGE

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