SET B (1st Semester A.Y.

2008-2009)
I.
1. A collective bargaining unit refers to a group of employees sharing mutual
interest within a given employer unit, composed of all or less all of the entire
body of employees in the employer unit or any specific occupational or
geographical grouping within such employer unit. (S1R1, Book V, IRR)
2. The following are the factors in determining the proper constituency of a
Collective Bargaining Unit:
a. Globe Doctrine the express will or desire of the employees;
b. Community of Interest Doctrine the substantial and mutuality interest
factor;
c. Prior collective bargaining history;
d. Similarity of employment status.
3. A run-off election becomes necessary:
When an election which provides for three or more choices results in no
choice receiving a majority of the valid votes cast, a run-off election shall be
conducted between the labor unions receiving the two highest number of votes:
Provided, that the total number of votes for all contending unions is at least fifty
percent (50%) of the number of votes cast.
4. Meaning of one-half month salary under the LC
Unless the parties provide for broader inclusions, the term month
salary shall mean 15 days plus 1/12 of the 13th month pay and the cash
equivalent of not more than 5 days of service incentive leaves.
5. The following are the requisites for terminating an employee on the
ground of disease or illness:
a. The continued employment of the employee is prohibited by law or
prejudicial to his health as well as to the health of his co-employees;
b. There is a certification by a competent public health authority that the
disease is of such a nature or at such stage that it cannot be cured within
a period of 6 months, even with proper medical treatment;
c. Notice to the employee and the DOLE at least 1 month prior to the
intended date of termination; and
d. Separation pay of 1 month or one-half month for every year of service,
whichever is higher, a fraction of 6 months or more being considered as 1
year.
6. The following are the reliefs given by law to an employee dismissed
without a just cause and without procedural due process:
a. Entitled to reinstatement without loss of seniority rights and privileges and
other benefits;

b. Full backwages from the time of the illegal dismissal until reinstatement;
c. Indemnity in the form of nominal damages.
However in lieu of reinstatement, the employee may be awarded a
separation pay.
7.

a. Amount of separation pay in lieu of reinstatement - 1 month salary or

month pay for every year of service, whichever is higher, a fraction of at
least 6 months shall be considered as 1 year.
b. Amount of separation pay when it is given as a relief to an employee
lawfully constructively dismissed 1 month salary or month pay for
every year of service, whichever is higher.

8. The following must concur for the validity of a strike:

a. Purpose Test the strike must be due to either:
i. Bargaining deadlock; and/or
ii. Unfair labor practice;
iii. Union busting (which is a form of a ULP)
b. Compliance with Procedural and Substantive Requirement of the Law
i. Notice of Strike must be filed prior to the intended date of the
strike, taking into consideration the cooling-off period.
ii. Cooling-off period before the intended date of actual strike subject
to the 7-day strike ban
1. Bargaining deadlock 30 days
2. ULP 15 days
3. UB cooling-off period need not be observed and the union
may take action immediately after the strike vote is
conducted and results is submitted to regional branch.
iii. Strike Vote a requirement wherein the decision to declare a strike
must be:
1. Approved by a majority of the total union membership in the
bargaining unit concerned (not the whole bargaining unit);
and
2. Obtained by secret ballot in meetings or referenda called for
the purpose.
c. Means Employed Test a strike maybe legal at its inception but
eventually be declared illegal if the strike is accompanied by violence
which is widespread, pervasive and adopted as a matter of policy and not
merely violence which is sporadic which normally occur in a strike area.
9. The following are the instances of awarding a separation pay in lieu of
reinstatement:
a. When reinstatement cannot be effected in view of the long passage of
time or because of the realities of the situation;

b. When the employee expressly prayed the award for separation pay
instead of reinstatement;
c. When due to the old age of the employee;
d. When the employees former position no longer exist at the time of
reinstatement for reasons not attributable to the fault of the employer;
e. When it would be inimical to the employers interest;
f. When reinstatement may no longer feasible;
g. When it will not serve the best interest of the party involved;
h. When the company will be prejudiced by the reinstatement;
i. When it will not serve a prudent purpose; and
j. That there is a resultant strained relations.
10. To constitute abandonment, there must be a clear and deliberate intent to
discontinue ones employment without any intention of returning back. The
elements that must concur are as follows:
a. Failure to report for work or absence without valid or justifiable reason;
and
b. Clear intention to severe employer-employee relationship being
manifested by some overt acts.
11. The following shall constitute grounds for cancellation of union
registration:
a. Misrepresentation, false statement or fraud in connection with the
adoption or ratification of the constitution and by-laws on amendment
thereto, the minutes or ratification and the list of members who took part
in the ratification;
b. Misrepresentation, false statement or fraud in connection with the election
of officers, minutes of election of officers and the list of voters
c. Voluntary dissolution by the members.
II.
1. The non-appearance of the complainant or petitioner during the 2 settings for
mandatory conciliation and mediation conference scheduled in the summons,
despite due notice thereof, shall be a ground for the dismissal of the case
without prejudice.
In case of non-appearance by the respondent during the first scheduled
conference, the second conference as scheduled in the summons shall proceed.
If the respondent still fails to appear at the second conference despite being duly
served with summons, he/she shall be considered to have waived his/her right to
file position paper. The Labor Arbiter shall immediately terminate the mandatory
conciliation and mediation conference and direct the complainant or petitioner to
file a verified position paper and submit evidence in support of his/her causes of

action and thereupon render his/her decision on the basis of the evidence on
record. (SECTION 10. NON-APPEARANCE OF PARTIES)
A party may file a motion to revive or re-open a case dismissed without
prejudice, within 10 calendar days from receipt of notice of the order dismissing
the same; otherwise, the only remedy shall be to re-file the case. A party
declared to have waived his/her right to file position paper may, at any time after
notice thereof and before the case is submitted for decision, file a motion under
oath to set aside the order of waiver upon proper showing that his/her failure to
appear was due to justifiable and meritorious grounds. (SECTION 20. REVIVAL
AND RE-OPENING OR RE-FILING OF DISMISSED CASE and LIFTING OF
WAIVER)
2. Immediately after the submission by the parties of their position paper or reply,
as the case may be, the Labor Arbiter shall, motu proprio, determine whether
there is a need for a hearing or clarificatory conference. At this stage, he/she
may, at his/her discretion and for the purpose of making such determination, ask
clarificatory questions to further elicit facts or information, including but not
limited to the subpoena of relevant documentary evidence, if any, from any party
or witness. (SECTION 12. DETERMINATION OF NECESSITY OF HEARING OR
CLARIFICATORY CONFERENCE)
3. Check-off means a method of deducting from the employees pay prescribe
periods, any amount due for fees, fines or assessments.
It is a process or device whereby the employer, on agreement with union
recognized as the proper bargaining representative, or on prior authorization
from its employees, deducts union dues or agency fees from the latters wages
and remits them directly to the union.
The following are the requisites for validity of union special assessment:
a. Authorization through a written resolution of the majority of all members
at a general membership meeting duly called for the purpose;
b. Secretary record of the minutes of said meeting; and
c. Individual written authorization for check-off duly signed by the employee.
No attorneys fees, negotiation fees or similar charges of any kind arising
from any collective bargaining agreement shall be imposed on any individual
member of the contracting union: Provided, However, that attorneys fees may
be charged against union funds in an amount to be agreed upon by the parties.
Any contract, agreement or arrangement of any sort to the contrary shall be null
and void. (Art. 222, Labor Code)
4. The following are the procedural requisite for a valid strike and lockout:
a. A notice of strike filed with the DOLE at least 30 days before the intended
date thereof or 15 days in case of a ULP,

b. Strike vote approved by a majority of the total union membership in the

collective bargaining unit concerned, obtained by secret ballot in a
meeting called for that purpose,
c. Notice given to the DOLE of the results of the voting at least 7 days
before the intended strike.
Test In Determining the Legality of a Strike/Lockout:
d. Purpose Test- the strike must be due to either bargaining deadlocks or
unfair labor practice
e. Compliance with procedural and substantive requirements of law
i. Notice of strike which must be filed prior to the intended date of
strike, taking into consideration the cooling off period
ii. Cooling off period before the intended date of actual strike subject
to the 7 day strike ban.
1. Bargaining deadlock-30 days
2. ULP-15 days
3. Union busting- cool off period need not be observed and the
union may take action immediately after the strike vote is
conducted and results submitted to regional branch
b. Strike vote- a requirement wherein the decision to declare a strike must
be:
i. Approved by a majority of the total union membership in the
bargaining unit concerned and
ii. Obtained by a secret ballot in meeting or referenda called for the
purpose
c. 7-day strike ban or the 7-day waiting period before the date of the
purported strike.
5. Managerial Employees, as provided by the Article 245 of the Labor Code, are not
eligible to join, assist or form any labor organization.
Supervisory employees shall not be eligible for membership in a labor
organization of the rank-and-file employees but may join, assist or form a
separate labor organization organizations of their own.
Confidential employee may be a rank-and-file employee but because in
the normal course of his duties, he becomes aware of management policies
relating to labor relations, he is not allowed to assist, form or join a rank and file
union or supervisors union, as the case maybe. His exclusion from the bargaining
unit is justified under the confidential employee rule to allow him to join a
union would give rise to a potential conflict of interest.
6. In the absence of a retirement plan or agreement providing for retirement
benefits of employees in the establishment, an employee upon reaching the age
of 60 years or more, but not beyond 65 years which is hereby declared the
compulsory retirement age, who has served at least 5 years in the said

establishment, may retire and shall be entitled to retirement pay equivalent to at

least 1/2 month salary for every year of service, a fraction of at least 6 months
being considered as one whole year.
Unless the parties provide for broader inclusions, the term 1/2 month
salary shall mean 15 days plus 1/12 of the 13th month pay and the cash
equivalent of not more than 5 days of service incentive leaves.
7. Non-union members may be assessed with agency fees if they accepted benefit
from the CBA. Such maybe assessed from non-union members even without
their individual written authorization. Employees of an appropriate bargaining
unit who are not members of the recognized collective bargaining agent may be
assessed a reasonable fee equivalent to the dues and other fees paid by
members of the recognized collective bargaining agent, if such non-union
members accept the benefits under the collective bargaining agreement:
Provided, that the individual authorization required under Article 242, paragraph
(o) of this Code shall not apply to the non-members of the recognized collective
bargaining agent. [Art. 254 (e), LC]
8. Probationary employment exists where the employee, upon his engagement is
made to undergo a trial period during which the employer determines his fitness
to qualify for regular employment based on reasonable standards made known
to him at the time of his engagement. As a general rule, the period for
probationary employment is generally 6 months. If the probationary employee is
allowed to work beyond the 6-month period or the agreed probationary period,
said employee becomes a regular employee by operation of law. The services of
a probationary employee maybe terminated when he fails to qualify as a regular
employee in accordance with reasonable standards prescribed by the employer.
Beyond the 6-month probationary period, a probationary employee may only be
terminated for just or authorized cause. Expiration of the period of probationary
employment is neither a valid nor authorized cause for the valid dismissal of a
regular employee.
9. The cause of action due to the unjust refusal of the company to grant the
separation pay agreed by an employee and the manager is really an action for
damages. The Civil Code provision under Art. 1146 therefore applies. Such action
prescribes after 4 years from the time when the cause of action accrued.
10. The court will only enjoin a strike if such is filed by an innocent bystander. Under
the Innocent Bystander Rule, while the general rule is that regular courts are
without authority to issue injunction orders in cases involving or originating from
labor disputes even if the complaint was filed by non-striking employees and the
employer was made a respondent, it may still issue injunction to protect the
interest of neutral employers in common situs picketing. An innocent bystander
is entirely different from and has no relation whatsoever to either parties in a
labor dispute and its interest is totally foreign to the context thereof.
11.
a. Requirements of a valid retrenchment:

i. It is reasonably necessary and likely to prevent business losses,

which, if already incurred, are not merely de minimis, but
substantial, serious, actual and real, or if only expected, are
reasonably imminent as perceived objectively and in good faith by
the employer;
ii. The employer served written notice both to the employees and to
the DOLE at least 1 month prior the intended date of retrenchment;
iii. The employer pays the retrenched employees separation pay
equivalent to 1 month pay or at least one-half month pay for every
year of service;
iv. The employer is in good faith in exercising its prerogative to
retrench the employees;
v. The employer use fair and reasonable criteria in ascertaining who
would be dismissed and who would be retained among the
employees.
b. When the dismissal of an employee is due to an authorized cause, notice
of termination must be given both to the employee and to the Regional
Office at least 1 month before the intended date thereof. In case of
retrenchment to prevent losses and in cases of closures or cessation of
operations of establishment or undertaking not due to serious business
losses or financial reverses, the separation pay shall be equivalent 1
month pay or at least 1/2 month pay for every year of service, whichever
is higher. A fraction of at least 6 months shall be considered 1 whole year.
c. Employees are entitled to an award of indemnity in the form of nominal
damages if their dismissal was legal but without observance of the
procedural due process.