UNIVERSITY OF THE PHILIPPINES

COLLEGE OF LAW

Bar Operations 2008

LABOR LAW II

Bar Operations Head

Arianne Reyes

Academics Head

Henry Aguda

Subject Head

Dielle Kapunan

Ryan Balisacan

Rowena Salonga

LABOR LAW II

LABOR RELATIONS

TABLE OF CONTENTS
Section
SECTION 1
SECTION 2
SECTION 3
SECTION 4
SECTION 5
SECTION 6
SECTION 7
SECTION 8
SECTION 9
SECTION 10
SECTION 11

Topic
Right to Self-Organization
Labor Organization
Union Security
Appropriate Bargaining Unit
Union Representation
Collective Bargaining
Unfair Labor Practice
Concerted Activities
Labor Injunction
Other Modes of Labor Dispute Settlement
Amendments to the Labor Code

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PART I
RIGHT TO SELF ORGANIZATION
I.

Basis of Right
The right to self-organization is granted to the employee by
both the Constitution (ART. III, Sec 8; ART. XIII, Sec. 3) and by
the Labor Code (ART. 243). Thus, it is both constitutionally
guaranteed as well as statutorily guaranteed. Being a
primordial Constitutional Right, it prevails most of the time
over the right to property of the employer.

II.

Extent and Scope of Right

ART. 246
The right to self-organization 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 Art 264 of this

NOTE: The certification election is an example of the exercise of the

right to self-organization.

THE RIGHT TO SELF ORGANIZATION SHALL ALSO INCLUDE:

Right not to exercise it: the right NOT to join, affiliate with, or assist
any union, and to disaffiliate or resign from a labor organization, is
subsumed in the right to join, affiliate with, or assist any union, and
to maintain membership therein. It is self-evident that just as no
one should be denied the exercise of a right granted by law, so also,
no one should be compelled to exercise such a conferred right
(Reyes v. Trajano (1992))
Right to withdraw from the organization: the right of the
employees to self-organization is a compelling reason why their
withdrawal from the cooperative must be allowed. As pointed out
by the union, the resignation of the member-employees is an
expression of their preference for union membership over that of
membership in the cooperative (Central Negros Electric
Cooperative v. Sec. of Labor (1991))
Right to raise issues in behalf of the organization: Luna's remarks
were intended to protect the interests of the members of the
Provident Fund from what he honestly believed was a risky venture
on the part of management. His actuations as such should therefore
be considered as legitimate exercise of the employees' right to selforganization and as an activity for their mutual aid and protection,
aside from being privileged communication protected by the
constitutional guarantee on free speech (Union of Supervisors v.
Sec. of Labor (1991))

III. Workers with Right to Self-Organization

WORKER QUALIFICATIONS
Employees have the right to form, join or assist labor organizations
for the purpose of collective bargaining or for their mutual aid and
protection. Whether employed for a definite period or not, they
shall, beginning on his first day of service, be considered as an
employee for purposes of membership in any labor union (UST
Faculty Union v. Bitonio (1999), see also ART. 277(c))
Even 1) rank-and-file employees of non-profit medical institutions
are now permitted to form, organize or join labor unions of their
choice for purposes of collective bargaining (FEU-Dr. Nicanor Reyes
medical Foundation, Inc. v. Trajano (1987)); and 2) members of
religious sects such as the INC, can now form their own union
(Victoriano v. Elizalde Workers Union (1974)).

ALL OTHER EMPLOYEES

ART. 244
Government Corporation Employees: shall have the right
to organize and to bargain collectively with their
respective employers.
Other Employees in the Civil Service: shall have the right
to form associations for purposes not contrary to law.
ART. 245
Supervisory Employees: SHALL NOT be eligible for
membership in a labor organization of the rank and file
employees BUT MAY join, assist or form SEPARATE labor
organizations of their OWN.
EO 111, Manila Electric Co. v. Sec. of Labor (1991)
Security Guards: may now join a rank and file
organization.
Art. 212 (m): Supervisory Employees are those who, in the
interest of the employer,
Effectively RECOMMENDS such managerial actions
If the exercise of such authority is not merely routinary or
clerical in nature
But requires the use of INDEPENDENT JUDGMENT.
Why cant supervisors join a union of rank-and-file?
To avoid a situation where supervisors would merge with
the rank and file, or where the supervisors' labor
organization would represent conflicting interests
(Dunlop v. Sec. of Labor (1998)).
ALIENS
ART. 269
General Rule: they are strictly PROHIBITED from engaging
directly or indirectly in all forms of trade union activities
Exception: aliens working in the country
a. Have valid permits issued by DOLE
b. Reciprocity: That said aliens are nationals of a
country which grants the same or similar rights
to Filipino workers

IV. Workers with No Right to Self-Organization

MANAGERIAL AND CONFIDENTIAL EMPLOYEES
ART. 245
NOT eligible to join, assist or form any labor organization.
ART. 212 (m)
Managerial employee is one who is vested with powers or
prerogatives:

To lay down and execute management policies and/ or

To hire, transfer, suspend, layoff, recall, discharge, assign, or

discipline employees.
Sugbuanon Rural Bank vs. Laguesma (2000)
Confidential employees are those who
a. Assist or act in a confidential capacity, in regard
b. To persons who formulate, determine, and effectuate
management policies [specifically in the field of labor
relations].
The two criteria are cumulative, and both must be met if an
employee is to be considered a confidential employee.
NOTE: The managers right to self-organize is NOT removed, but only
limited. It cannot be a labor organization which has a technical

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meaning of its own, being composed of employees (which excludes

managers, as managers are considered employers under labor
relations) and for the purpose of collective bargaining.
Art. 245 of the Labor Code does not directly prohibit confidential
employees from engaging in union activities. However, under the
doctrine of necessary implication, the disqualification of managerial
employees equally applies to confidential employees
RATIONALE: Employees should not be placed in a position involving a
potential conflict of interests.

A local union of supervisory employees may be allowed to affiliate

with a national federation of labor organizations of rank and file
employees. What the law prohibits is that supervisory employees
join a rank and file union.
The national federation would be representing the respective
interests of the 2 groups separately.
Adamson v. CIR (1984)
Individuals employed as supervisors shall not be eligible for
membership in a labor organization of employees under their
supervision but may form separate organizations of their own.

COOPERATIVE MEMBERS
Cooperative Rural Bank of Davao vs Ferrer-Calleja (1988)

2.

An employee of such a cooperative who is a member AND COOWNER cannot invoke the right to collective bargaining for certainly
an owner cannot bargain with himself or his co-owners.
However, insofar as it involves cooperatives with employees who
are NOT members or co-owners thereof, certainly such employees
are entitled to exercise the rights of all workers to organization,
collective bargaining negotiations, and others as are enshrined in
the Constitution and existing laws of the country.
PD 175: a COOPERATIVE is an organization composed of small
producers and of consumers who voluntarily join together to form
business enterprises which they themselves, own, control and
patronize. Its owners or members are the ones who run and
operate the business while the others are its employees.
NON-EMPLOYEES
Rep. Planters Bank General Services Employees Union v.
Laguesma (1996)
If union members are not employees, no right to organize
for the purpose of bargaining and to be certified as
bargaining agent can be recognized.

V.

Local Union Disaffiliation

NATURE OF RIGHT TO DISAFFILIATE

Volkschel Labor Union v BLR (1985)
Right of a local union to disaffiliate from its mother union
is well-settled. A local union, being a separate and
voluntary association, is free to serve the interest of all its
members including the freedom to disaffiliate when
circumstances warrant. This right is consistent with the
constitutional guarantee of freedom of association.
Malayang Samahan v. Ramos (2000)
A local union which has affiliated itself with a federation
is free to sever such affiliation anytime and such
disaffiliation cannot be considered disloyalty. In the
absence of specific provisions in the federation's
constitution prohibiting disaffiliation or the declaration of
autonomy of a local union, a local may dissociate with its
parent union.
RULE LEGALITY OF DISAFFILIATION
Villar vs Inciong (1983)
Although, as a matter of principle, an affiliate has the
right to disaffiliate, this right must respect the terms of
the affiliation agreement.

Party Protected
ALL EMPLOYEES OF BARGAINING UNIT
Mactan Workers Union vs Aboitiz (1972)
The labor union who won as sole bargaining agent of the
employees does not act for its members alone. It
represents all the employees in such a bargaining unit.
Furthermore, what is entitled to protection is labor, not
the labor organization. The latter are merely
instrumentalities through which their welfare may be
promoted and fostered.

PERIOD OF DISAFFILIATION
Tanduay Distillery Labor Union v. NLRC (1987)
GENERALLY, a labor union may disaffiliate from the
mother union to form a local or independent union ONLY
during the 60 day freedom period immediately preceding
expiration of CBA.
EXCEPTION: Shift of allegiance of majority. In such a case,
however, the CBA continues to bind members of the new
or disaffiliated and independent union up to the CBAs
expiration date

POLICY AND DEFINITION

VI. Non-Abridgement of Right

DEFINITIONS

NON-ABRIDGEMENT OF RIGHT TO SELF ORGANIZATION

ART. 246

1.

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.
Violation of the right to self-organization shall be
considered an unfair labor practice (ART. 248, 249)

1.

Supervisor Rank and File Union Affiliation

EMPLOYER AND EMPLOYEE

EMPLOYER
Art. 212 (e)

RULE ON AFFILIATION, RATIONALE

INCLUDES any person acting in the interest of an

employer, directly or indirectly.
The term shall NOT INCLUDE any labor
organization or any of its officer or agents
EXCEPT when acting as an employer.

Atlas Lithographic v Laguesma (1992)

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Note: By using the word includes and not mean, congress did
not intend to give a complete definition of employer. But
rather such definition should be complementary to what is
commonly understood as employers.
- IMPLICATION: the employer may NOT necessarily be the owner
of the business.
- Can a Labor Organization be considered an employer?
Yes, but the only instance wherein a labor organization
becomes an employer is when it is acting as an employer
in relation to its own employees and not as a labor
organization.
Significance of this is that a Labor Organization can
possibly commit an Unfair Labor Practice in two ways:
As an Employer, if in relation to its own employees
(Art. 248); or
As a Labor Organization, in relation to the company
(Art. 249).

EMPLOYEE
Art. 212 (f)

2.

INCLUDES any person in the employ1 of an

employer.
The term shall NOT be limited to the employees
of a particular employer, UNLESS this code so
explicitly states.
It shall include any individual whose work HAS
CEASED as a result of or in connection with -- a)
Any current labor dispute; or b) Because of any
unfair labor practice -- If he has NOT obtained
any other SUBSTANTIALLY EQUIVALENT and
REGULAR employment.

it does not matter whether the agent is legitimate or not because as

agent it acts as an extension of the personality of the principal and
not as itself.
Can a legitimate labor organization be composed of both rank
and file employees and supervisory employees? -- No.

3.

LABOR DISPUTES

LABOR DISPUTES
Art. 212 (l)

INCLUDE
1. Any controversy or matter
2. Concerning
a. Terms or conditions of employment or;
b. The association or representation of
persons
in
negotiating,
fixing,
maintaining, changing or arranging the
terms and conditions of employment,
3. Regardless of whether the disputants stand
in proximate relation of employer and
employee.

Can a dispute between contractual employees (who are not

regular employees of the company) and the company be
considered a labor dispute, despite the absence of employeeemployer relationship?
Yes, provided the controversy concerns, among others,
the terms and conditions of employment or a change or
arrangement thereof (San Miguel Corp. Employees UnionPTGWO
v.
Bersamira
(199

LABOR ORGANIZATION - LEGITIMATE LABOR

ORGANIZATION

LABOR ORGANIZATION
Art. 212 (g)

Labor organization means any:

a) union or association of employees
b) which exists in whole or in part
c) for the purpose of:
i. collective bargaining concerning terms
and conditions of employment, or
ii. of dealing with employers concerning
terms and conditions of employment.

LABOR ORGANIZATION:
COMPOSITION: Employees
PURPOSE: Collective Bargaining or of dealing with employers
concerning terms and conditions of employment.

LEGITIMATE LABOR ORGANIZATION

Art. 212 (h)

Any labor organization DULY REGISTERED with

DOLE and includes any branch or local thereof.

Is the local or branch required to be a legitimate labor organization,

even though the national union or federation to which it is affiliated
is already a legitimate labor organization? -- Yes.
Lopez Sugar Corporation v. Secretary of Labor (1995)
It is not enough that the national union or federation, but the local
or branch should also be a legitimate labor union either by
1. Direct (independent) registration or
2. By submitting requirements as a local affiliate of a legitimate
labor organization.
REASON: In relation to the employer, the local is the principal and
the national union is the agent. So if the principal is not legitimate,

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PART II
LABOR ORGANIZATION
I.

FEDERATION/NATIONAL UNION
ART. 237
a. Proof of affiliation of at least 10 locals or chapters
and;

Labor Organization Unions

b. The names and addresses of the companies

where the locals or chapters operate and the list
of all the members of each company involved.

DEFINITIONS
LABOR ORGANIZATION
ART. 212 (g)

NOTE: ART. 237 is subject to ART. 238

Any union or association of employees which exists

in whole or in part for the purpose of:

collective bargaining or

of dealing with employers concerning terms

and conditions of employment
LEGITIMATE LABOR ORGANIZATION
ART. 212 (h)
Any labor organization duly registered with the Dept.
of Labor and Employment and includes any branch or
local thereof.

PROCEDURE
ART. 235
All requisite documents and papers to be filed shall be
certified under oath by the secretary or the treasurer of
the organization/union as the case may be and attested
to by its president.
Moreover, Book V, Rule II, Sec. 4 requires:
i.

NOTE: A labor organization composed of both rank and file and

supervisory employees is no labor organization at all. It cannot
posses the rights of a legitimate labor organization (Dunlop v. Sec.
of Labor (1998)).

that the application should be signed by at

least twenty percent (20%) of the employees
in the appropriate bargaining unit and
be accompanied by a sworn statement of the
applicant union that there is no certified
bargaining agent or, where there is an existing
collective agreement duly submitted to the
DOLE, that the application is filed during the
freedom period

ii.

DOLE REGISTRATION AS BASIS OF LEGITIMACY

The unions registration with the BLR, and UPON issuance of the
CERTIFICATE OF REGISTRATION based on the requirements under
ART 234, makes it a legitimate labor organization, with the rights
and privileges granted by the Labor Code including the release or
custody of union dues (Cebu Seamens Assoc., Inc v. Ferrer-Calleja
(1992), Progressive Devt v. Sec. of Labor (1992)).

II.

Union Function and Rationale

1.

2.

To promote interests of labor without unnecessary labor

disputes (United Seamans Union v Davao Ship-owners
Assoc (1967)).
It is the instrumentality through which an individual
laborer who is helpless as against a powerful employer
may, through concerted effort and activity, achieve the
goal of economic well-being. Workers unorganized are
weak, workers organized are strong (Guijarno v. CIR
(1973))

Union Registration and Procedure

REQUIREMENTS TO ACQUIRE LEGAL PERSONALITY

(1) CHARTER CERTIFICATE within 30 days from issuance of national

union
(2) NAMES of officers, their addresses, and principal address of
local/chapter; and
(3) CONSTITUTION AND BY-LAWS (but if same with
federation/national union this shall be indicated accordingly)

Effect of Registration on Freedom of Association: the

Any Labor Organization/Association

ART. 234
1. P50 registration fee
2. The names of its officers their addresses, the
principal address of the labor org, the minutes of
the organizational meetings and the list of the
workers who participated in such meetings
3. The names of all its members comprising at least
20% of all the employees of the bargaining unit it
seeks to operate
4. If the applicant union has been in existence for 1 or
more years, copies of its annual financial reports;
and
5. Four (4) copies of the constitution and by-laws of
the applicant union, minutes of its adoption or
ratification and the list of the members
participating in it.

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to acquire personality. Any legitimate labor organization may

directly create a local/chapter by issuing a charter certificate
indicating establishment of the local/charter. The local/chapter
shall enjoy rights and privileges of a legitimate labor org only upon
submission of:

-- These supporting documents must be CERTIFIED UNDER OATH by

the secretary/treasurer, and ATTESTED to by its president (ART.234A).

III. Labor Union and Government Regulation

1.

In case of a local/chapter: need not be registered independently

requirement of registration does NOT curtail the freedoms of

assembly and association. Said freedoms may still be exercised with
or without registration. The latter is merely a condition sine qua
non for the acquisition of legal personality by labor unions and the
possessions of rights and privileges granted by law (PAFLU v. Sec. of
Labor (1969))

2.

Action or Denial of Application and Remedy

ACTION OF APPLICATION
ART. 235
The bureau shall act on all applications for registration within 30 days
from filing.

All requisite documents and papers shall be certified under

oath by the secretary or the treasurer of the org as the case
may be and attested to by its president the applicant union to
the Bureau within 10 days from receipt of notice thereof.

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DENIAL OF APPLICATION MAY BE APPEALED

ART. 236
The decision of the Labor Relations Division in the regional
office denying registration may be appealed by
NOTE: As long as an applicant union complies with all of the legal
requirements for registration, it becomes the BLRs ministerial duty
to so register the union (Vassar Industries EEs Union v. Estrella
(1951)

3.

Collateral Attack

After a certificate of registration is issued to a union, its legal

personality CANNOT be subject to collateral attack. It may be
questioned only in an independent petition for cancellation in
accordance with Section 5 of Rule V, Book IV of the "Rules to
Implement the Labor Code" (Tagaytay Highlands International
Golf Club, Inc. vs. Tagaytay Highlands Employees Union (2003)).

RIGHTS OF LEGITIMATE LABOR ORGANIZATION

ART. 242
1.

to act as REPRESENTATIVE of MEMBERS for purpose

of collective bargaining
to be certified as EXCLUSIVE REPRESENTATIVE of
EMPLOYEES in appropriate bargaining unit for
purpose of collective bargaining
to BE FURNISHED by employer, upon written
request, with its annual audited FINANCIAL
STATEMENTS
to OWN PROPERTY, real/personal, for use and
benefit of the labor organization and its members
to SUE and be sued in its registered name
to UNDERTAKE ALL activities designed to benefit the
organization and members not contrary to law
income, properties, grants, endowments, gifts,
donations, and contributions used for their lawful
purposes shall be FREE from TAXES, DUTIES and
ASSESSMENTS, except when this provision is
expressly repealed by a special law

2.
3.
4.
5.
6.
7.

4.

Effect of Non-registration

If not registered union does not become LEGITIMATE labor

organization; hence, CANNOT enjoy rights and privileges granted
under ART. 242 (Sugbuanon Rural Bank,Inc. v. Laguesma (2000),
Protection Technology v. Sec. Of Labor (1995)).

5.

Cancellation of Union Certificate of Registration

The certificate of registration of any legitimate labor organization

shall be cancelled by the BLR, after due hearing, ONLY ON
GROUNDS specified in ART. 239 (ART. 238, as amended).
The cancellation of a certificate of registration is the equivalent
of snuffing out the life of a labor organization. For without such
registration, it loses as a rule its rights under the Labor
Code. A decision rendered without any hearing is null and void
(Alliance of Democratic Labor Organization v. Laguesma
(1996)).
BUT take note of last par of ART. 241(j): Failure of any labor
organization to comply with the periodic financial reports
required by law and such rules and regulations promulgated
thereunder 6 months after the effectivity of this Act shall
automatically result in the cancellation of union registration of
such labor organization.

amendments thereto; minutes of the ratification; and list of

members who participated in the ratification;
2. MISREPRESENTATION, false statement or fraud in with election
of officers; minutes of election, and list of voters;
VOLUNTARY DISSOLUTION by members

EFFECT OF PETITION FOR CANCELLATION OF REGISTRATION

In the case of Progressive Development v. Laguesma (1997), the
Court held that the certification election proceedings should be
SUSPENDED until the issue of the legality of the Unions
registration shall have been resolved.
BUT under ART 238-A, a petition for cancellation of union
registration SHALL NOT SUSPEND the proceedings on certification
election nor shall it prevent the filing of a petition for
certification election (see collateral attack, pg 3).

IV. International Activities of Union Prohibition and

Regulation
Aliens, natural/juridical, as well as foreign orgs, are strictly
prohibited from engaging directly/indirectly in all forms of trade
union activities, subject to certain exceptions (ART. 269).
No foreign individual, org or entity may give any donations,
grants or other forms of assistance, in cash or in kind, directly or
indirectly, to any labor org, group of workers or any auxiliary
thereof, as well as those given directly or indirectly to any
employer(s) org to support any activity or activities affecting
trade unions WITHOUT prior permission of the Secretary of
Labor (ART. 270). This prohibition applies to farm tenants and
rural workers (ART. 271).
The Sec. of Labor shall promulgate rules and regulations to
regulate/control the giving and receiving of such donations,
including mandatory reporting of amounts donated, the
projects/activities to be supported and their duration (ART. 270).

V.

Union-Member Relations

1. Nature of Relationship
Union is but an AGENT of the individual workers and it has the duty
to inform the members of the labor matters entrusted to it. The
employer may rely on the authority of the union to bring the union
members especially in collective bargaining (Heirs of Cruz v. CIR
(1969)).
2. Issues
o The point to be stressed is that the unions CBL is the
fundamental law that governs the relationship between and
among the members of the union. They embody a covenant
between a union and its members and constitute the
fundamental law governing members rights and obligations (UST
Faculty Union v. Bitonio (1999)).
o GENERAL RULE: Labor union remains a PRIVATE and VOLUNTARY
organization. Hence, membership is a matter of privilege.
o EXCEPTION: When union has access to employment, example:
CLOSED SHOP AGREEMENT. This converts union into one with a
public character and thus the government will have a right to
inquire into the rules or business of the union (see Salunga v. CIR
(1967)).

ADMISSION AND DISCIPLINE OF MEMBERS

ART. 249 (a)
A labor organization shall have the right to prescribe its own
rules with respect to the acquisition or retention of membership.
ART. 277 (c)

GROUNDS FOR CANCELLATION (MCBL, ME, VD)

ART. 239 (as amended)

Any employee, whether employed for a definite period or not, shall

be considered as an employee for purposes of membership in any
labor union -- beginning on his first day of service.

1. MISREPRESENTATION, false statement or fraud in connection

with adoption/ratification of the constitution and by laws or

RIGHT TO DISCIPLINE

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VILLAR V. INCIONG (1983)

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When a labor union affiliates with a mother union, it becomes

bound by the laws and regulations of the parent organization. It
becomes subject to the laws of the superior body under whose
authority the local union functions.

as prayed for, and not call for a referendum to decide the issue
(Kapisanan v. Trajano (1985)).

ELECTION INVALID

When members of a labor union sow the seeds of dissension and

strife within the union, when they seek the disintegration and
destruction of the very union to which they belong they forfeit
their rights to remain as members.

o Free and honest elections are indispensable to the enjoyment by

employees and workers of their constitutionally protected right
to self-organization. If attended by grave irregularities election
should therefore be declared INVALID (Rodriguez vs Director
(1988)).

DUE PROCESS
ART. 279

MAJOR POLICY MATTERS

ART. 241 (d)

A regular employee CANNOT be removed from his services by

employer WITHOUT a just cause or when NOT authorized,
otherwise, employee is entitled to reinstatement without loss of
seniority rights/privileges + full backwages, allowances and other
benefits/monetary equivalent from time his compensation was
withheld up to his actual reinstatement.

o MEMBERS shall determine by secret ballot, after due

deliberation, any question of major policy affecting the entire
membership of the organization
o but if such secret ballot becomes impractical
o the BOARD OF DIRECTORS of the organization may make the
decision in behalf of the general membership

ELECTION OF OFFICERS
QUALIFICATIONS

UNION FUNDS
RIGHTS/CONDITIONS OF MEMBERSHIP IN A LABOR ORG
ART 241

Membership in good standing (ART. 241 (c))

Must not have been convicted of any crime involving moral
turpitude (ART. 241 (f))

(b) Members are entitled to full/detailed financial transaction

reports

MANNER OF ELECTION
ART. 241 (C)

(g) Collection of any fees, dues or other contributions in behalf of

the labor org, or any disbursement of its money/funds allowed if
duly authorized by CBL

members shall directly elect their officers

by secret ballot
at intervals of 5 years

(h) Payment of fees, dues or other contributions by member shall

be evidenced by a receipt signed by the officer or agent making the
collection and entered into the record of the org

TENURE
ART 241 (C)

(i) Funds of the org shall not be applied for any purpose or object
other than those expressly provided by the CBL or authorized by
written resolution adopted by the majority of the members at a
general meeting duly called for the purpose

5 years
COMPENSATION
ART. 241 (k)
General Rule: NONE
Except: If specifically provided by their CBL, or allowed by written
resolution duly authorized by majority of all members in a
general membership meting duly called for the purpose

(j) Every income or revenue of the org shall be evidenced by a

record showing its source, and every expenditure of its funds shall
be evidenced by a receipt
(l) The treasurer shall render account (duly audited and verified by
affidavit and a copy thereof shall be furnished the Secretary of
Labor)

VOTERS LIST

1.

o Only MEMBERS of union can participate in the election of union

officers, and the question of eligibility is determined through the
use of the applicable payroll period and employees status during
the applicable payroll period (Tancinco vs Calleja (1988))

2.

o UNION ELECTION is different from CERTIFICATION ELECTION (see

UST Faculty Union v. Bitonio (1999)).
o
Union election election of officers of union; members
only can participate.
o
Certification election election of sole and exclusive
bargaining agent of the employees in an appropriate
bargaining unit; all employees belonging to the
appropriate bargaining unit can participate.

DISQUALIFICATION OF CANDIDATE
o If candidate is proven to be disqualified, it does not mean that
the candidate with 2nd highest number of votes becomes the
elected officer (Manalad v. Trajano (1989)).

EXPULSION REMEDY
o If herein union officers were guilty of the alleged acts imputed,
BLR pursuant to Article 242 should have meted out the
appropriate penalty on them, i.e., to expel them from the Union,

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3.

At least once a year within 30 days after the close of its

fiscal year.;
At such other times as may be required by a resolution of
the majority of the members of the organization; and
Upon vacating his office.

(m) Books of accounts and other records of the financial activities

of any labor org shall be open to inspection by any officer or
member thereof during office hours
(n) No special assessment or other extraordinary fees may be
levied upon the members of a labor org unless authorized by a
written resolution of a majority of all the members of a general
membership meeting duly called for the purpose
(o) Other than for mandatory activities under the Code, no special
assessments, atty.s fees, negotiation fees or any other
extraordinary fees may be checked off from any amount due to an
employee without an individual written authorization duly signed
by the Employeee. The authorization should specifically state the
amount, purpose and beneficiary of the deduction.
NOTE: Sec of Labor or his duly authorized representative may
inquire into financial activities of legitimate labor orgs UPON filing
of complaint under oath and supported by written consent of at
least 20% of total membership, Provided, such inquiry shall not be
conducted during (60)-day freedom period nor within the thirty (30)

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days immediately preceding the date of election of union officials

(ART 274).

SOURCE OF PAYMENT ATTORNEYS FEES, SPECIAL ASSESSMENTS

o Attorneys fees, negotiation fees or similar charges of any kind
arising from any collective bargaining negotiations or conclusion
of the collective agreement shall NOT be imposed on individual
member of contracting union, but 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 (b)).
o Art. 241 (n) has three requisites for the validity of the special
assessment for the unions incidental expenses:
1) Authorization by written resolution of majority of ALL the
members at the general membership meeting called for
that purpose
2) Secretarys record of the minutes of the meetings
attested to by the president.
3) Individual written authorization for check-off duly signed
by the employees concerned.
RULE: Attorneys fees, special assessments and other extraordinary
fees may be charged against individual members. EXCEPT: If
payment is effected through forced contributions from workers
workers did not expressly consent or give written authorization (see
ABS-CBN Supervisors Employees Union Members V. ABS-CBN
Broadcasting Corp (1999), Gabriel v. Sec. of Labor (2000)).

MANDATORY ACTIVITY
Judicial process of settling disputes laid down by the law. Amicable
settlements cannot be considered as a mandatory activity. ART 241
(o) envisions a situation where there is a judicial or administrative
proceeding for recovery of wages (Vengco v Trajano (1989))
Note: Article 222 (b) does not except a CBA, later placed under
compulsory arbitration, from the ambit of its prohibition. Hence,
individual written authorizations for check-offs are not dispensed
with, even if the CBA provides so (Galvadores v Trajano (1986)).

ENFORCEMENT AND REMEDIES PROCEDURE AND SANCTIONS

JURISDICTION
ART. 241, last paragraph
Criminal and civil liabilities arising from violations of above rights
and conditions of membership shall continue to be under the
jurisdiction of ordinary courts.
ART. 226
o The BLR and the Labor Relations Division in the regional offices
of the Department of Labor shall have original and exclusive
authority to act
o at their own initiative or
o upon request of either or both parties
o on all inter-union and intra-union conflicts, and all disputes,
grievances or problems arising from or affecting labormanagement relations in all workplaces
o Except those arising from the implementation or interpretation
of collective bargaining agreements which shall be the subject of
grievance procedure and/or voluntary arbitration.

Exception

Kapisanan v Hernandez (20 SCRA 109)

Futility of intra-union remedies

Improper expulsion procedure
Undue delay in appeal as to constitute substantial injustice
When the action is for damages
Lack of jurisdiction of investigating body
When the action of the administrative agency is patently illegal,
arbitrary and oppressive
When the issue involved is purely a question of law
Where the administrative agency has already prejudged the case
Where the administrative agency was practically given the
opportunity to act on the case but did not.

VI. Union Affiliation: Local-Parent Relations

3.

Affiliation

PURPOSE
ART 211 (C)
To foster the free and voluntary organization of a
strong and united labor movement
PHIL SKYLANDERS V. NLRC (2002)
The sole essence of affiliation is to increase, by
collective action, the common bargaining power of
local unions for the effective enhancement and
protection of their interests. Admittedly, there are
times when without succor and support local unions
may find it hard, unaided by other support groups, to
secure justice for themselves.

NATURE OF RELATIONSHIP
Filipino Pipe and Foundry Corp v. NLRC (1999)
The mother union, acting for and in behalf of its
affiliate, had the status of an agent while the local
remained the basic unit of the association, free to
serve the common interest of all its members, subject
only to restraints imposed by the constitution and by
the by-laws of the association. The same is true even if
the local is not a legitimate labor organization.
EFFECT OF AFFILIATION
Adamson v. CIR (1984)
Locals remain the basic units of association, free to
serve their own and the common interest of all.
Inclusion of FFW in the registration is merely to stress
that they are its affiliates at the time of registrations. It
does not mean that said local unions cannot stand on
their own. Affiliation does not mean they lost their
own legal personality.

GENERALLY - EXHAUSTION OF INTERNAL REMEDIES

Villar v. Inciong (1983)
When members of a labor union sow the seeds of dissension and
strife within the union, when they seek the disintegration and
destruction of the very union to which they belong. They forfeit
their rights to remain as members. Union has right to expel erring
members in accordance to their CBL. Redress must be first
sought within union itself.

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that the closed-shop contract is the most
prized achievement of unionism.

PART III
UNION SECURITY
Union Shop

Closed Shop

Maintenance
shop

Hiring

Continued
Employment

Ground for
Termination

Employees
have
access to
labor
market.
Can be
hired even
if not
union
member.

After some
time,
employee
must become
a member

If the employee
does not join the
union after a
reasonable time,
it will be grounds
for termination,
after due
process is
observed

Employee
must
become a
member
at the time
of hiring

Must be a
member all
through-out

Already a
member
at the time
of hiring

Must
maintain
membership,
otherwise it
shall be a
ground for
termination

If not a member
at anytime,
grounds for
termination,
after due
process is
observed
If disaffiliates
from union,
grounds for
termination,
after due
process is
observed

4.01 STATUTORY BASIS

Art. 248(e)
UNFAIR LABOR PRACTICE OF EMPLOYERS
1. 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.
2. 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 signing of the collective bargaining agreement.
Art. 243
COVERAGE AND EMPLOYEES RIGHT TO SELF-ORGANIZATION.
3. All persons employed in commercial, industrial and agricultural
enterprises and in religious, charitable, medical, or educational
institutions, whether operating for profit or not, shall have the
right to self-organization and to form, join, or assist labor
organizations of their own choosing for purposes of collective
bargaining. Ambulant, intermittent and itinerant workers, selfemployed people, rural workers and those without any
definite employers may form labor organizations for their
mutual aid and protection.

4.02 RATIONALE-EMPLOYEE ACTION

A closed shop agreement has been considered as one form of union
security whereby only union members can be hired AND workers
must remain union members as a condition of continued
employment. (Juat v. CIR, 1965)

RATIONALE

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CLOSED SHOP: The requirement for employees

or workers to become members of a union as a
condition for employment redounds to the
benefit and advantage of said employees
because by holding out to loyal members a
promise of employment in the closed-shop the
union wields group solidarity. In fact it is said

1.

To whom is Closed-shop proviso of a CBA applicable?

Closed-shop proviso of a collective bargaining agreement
entered into between an employer and a duly authorized labor
union is applicable not only to the employer and a duly
authorized labor union is applicable NOT ONLY to the
(1) Employees or laborers that are employed AFTER the
collective bargaining agreement was entered into.
(2) BUT ALSO to old employees who ARE NOT members
of any labor union at the time the said collective
bargaining agreement was entered into.

In other words, if an employee or laborer is already a member

of a labor union different from the union that entered into a
collective bargaining agreement with the employer providing for a
closed-shop, said employee or worker cannot be obliged to become
a member of that union which had entered into a CBA with the
employer as a condition for his continued employment.
GENERALLY: a state may NOT compel ordinary voluntary
associations to admit thereto any given individual, because
membership therein may be accorded or withheld as a matter of
privilege.
EXCEPTION: The rule is qualified in respect of labor unions holding a
monopoly in the supply of labor, either in a given locality, or as
regards a particular employer with which it has a closed-shop
agreement.
Consequently, it is well settled that such unions are NOT
entitled to arbitrarily excluded qualified applicants for membership,
and a closed-shop provision would not justify the employer in
discharging, or a union in insisting upon the discharge of, an
employee whom he union thus refuses to admit to membership,
without any reasonable ground thereof.
To further increase the effectiveness of labor organizations, a
closed-shop has been allowed. (Guijarno v. CIR, 1973)
Del Monte Phils. v. Saldivar (2006)
Admittedly, the enforcement of a closed-shop or union
security provision in the CBA as a ground for termination finds no
extension within any of the provisions under Title I, Book Six of the
Labor Code. Yet jurisprudence has consistently recognized, thus: "It
is State policy to promote unionism to enable workers to negotiate
with management on an even playing field and with more
persuasiveness than if they were to individually and separately
bargain with the employer. For this reason, the law has allowed
stipulations for 'union shop' and 'closed shop' as means of
encouraging workers to join and support the union of their choice in
the protection of their rights and interests vis-a-vis the employer."

4.03 VALIDITY OF AGREEMENT AND EFFECT ON FREEDOM OF

CHOICE
Tanduay Distillery Labor Union V. NLRC (1987)
As a matter of principle the provision of the
industrial Peace Act granting freedom to employees to
organize themselves and select their representative for
entering into bargaining agreements, should be
subordinated to the constitutional provision protecting the
sanctity of contracts. We can not conceive how freedom to
contract, which should be allowed to be exercised without
limitation may be subordinated to the freedom of laborers
to choose the organization they desire to represent them.
And even if the legislature had intended to do so and made
such freedom of the laborer paramount to the sanctity of
obligation of contracts, such attempt to override the
constitutional provision would necessarily and ipso facto be
null and void

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4.04 CONTRACT DRAFTING
PROVISIONUNION SECURITY

LABOR RELATIONS
AND

INTERPRETATION

OF

In order for an employer to be bound under a union security clause

in the CBA, to dismiss an employer for lack of or loss of union
membership, the stipulation must be so clear and unequivocal as to
leave absolutely no room for doubt. There must be a provision that
union members must be in good standing to keep their job.
(Rizal Labor Union v. Rizal Cement Co., 1955)
TAKE NOTE: Close shop and union shop provisions are in principle
valid and allowed by law. BUT since their application necessarily
involves the surrender of a portion of a workers individual freedom
and could result in loss of his employment. The terms of specific
union clauses should be construed strictly and doubts should be
resolved against their existence.

4.05 COVERAGE WORKER INCLUSION AND EXCLUSION

Art. 248 (e)
4. 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.
5. 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.
6.
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:
7. 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;

An employee is entitled to be protected not only from a

company which disregards his rights but also from his own Union
the leadership of which could yield to the temptation of swift and
arbitrary expulsion from membership and hence dismissal from his
job.
IMPLICATION: Even if there exists a union security clause, due
process is still necessary.
Right to Due Process
a.

b.

The dispute has to be settled before an impartial body. The

grievance machinery with members designated by the union
and the company cannot be expected to be impartial against
the dismissed employees. Due process demands that the
dismissed workers grievances be ventilated before an
impartial body. Since there has already been an actual
termination, the matter falls within the jurisdiction of the
Labor Arbiter. (Sanyo Phil. Workers Union v. Canizares, 1992)
Although union security clauses embodied in the collective
bargaining agreement may be validly enforced and that
dismissals pursuant thereto may likewise be valid, this does
not erode the fundamental requirement of due process. The
reason behind the enforcement of union security clauses
which is the sanctity and inviolability of contracts cannot
override one's right to due process. (Malayang Samahan ng
mga Manggagawa sa M. Greenfield v. Ramos, 2000)

4.07 FINANCIAL SECURITY

CHECK-OFF
Art. 113 b
No employer, in his own behalf or in behalf of any person, shall
make any deduction from the wages of his employees except: for
union dues, in cases where the right of the worker of his union to
check-off has been recognized by the employer OR authorized in
writing by the individual worker concerned.

4.06 NO RETROACTIVE EFFECT

CHECK-OFF:
1)
2)

A closed-shop provision in a collective bargaining agreement is not

to be given a retroactive effect so as to preclude its being applied to
employees already in the service. (Guijano v. CIR, 1973)

Art. 241 m,n,o

A closed-shop agreement applies only to persons to be hired or to

employees who are not yet members of any labor organization. It is
inapplicable to those already in the service who are members of
another union. (Freeman Shirt Manufacturing Co., Inc. vs. CIR)

4.07 IMPLEMENTATIONOBLIGATION & LIABILITIES

Carino v. NLRC (1990)
We believe that the Company should have given petitioner
Cario an opportunity to explain his side of the controversy with
the Union.
It is OUR considered view that respondent company is equally
liable for the payment of backwages for having acted in bad faith in
effecting the dismissal of the individual petitioners. Bad faith on the
part of respondent company may be gleaned from the fact that the
petitioner workers were dismissed hastily and summarily. At best, it
was guilty of a tortious act, for which it must assume solidary
liability, since it apparently chose to summarily dismiss the workers
at the union's instance secure in the union's contractual
undertaking that the union would hold it "free from any liability"
arising from such dismissal.
We conclude that the Company had failed to accord to
petitioner Cario the latter's right to procedural due process. The
right of an employee to be informed of the charges against him and
to 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.

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Ordinary Union dues

Extraordinary Fees, but can only be made when
authorized by individual written authorization, duly
signed by each employee concerned.

m. The books of accounts and other records of the financial

activities of any labor org shall be open to inspection by any
officer or member thereof during office hours;
n. No special assessment or other extraordinary fees may be
levied upon the members of a labor org:
8. unless authorized by a written resolution
9. of a majority of all the members of a general
membership meeting
10. duly called for the purpose.
The secretary of the org shall record:
11. the minutes of the meeting
12. including the list of all members present,
13. the votes cast,
14. the purpose of the special assessment or fees
and
15. the recipient of such assessments or fees.
The record shall be attested to by the president. (No
need to be under oath)
o. Other than for mandatory activities under the Code,
no special assessments, atty.s fees, negotiation fees or any
other extraordinary fees may be checked off from any amount
due to an employee
16. without an individual written authorization duly signed
by the employee.
17. The authorization should specifically state the amount,
purpose and beneficiary of the deduction
1.

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A check-off is a process or device whereby the employer, on

agreement with the Union, recognized as the proper

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2.

LABOR RELATIONS

bargaining representative, OR on PRIOR authorization from its

employees, deduct union dues or agency fees from the latters
wages and remit them directly to the union. Its desirability in a
labor organization is quite evident. (ABS-CBN Supervisors
Employees Union V. ABS-CBN)
It is assured thereby of CONTINOUS FUNDING. As this Court
has acknowledge, the system of check-off is primarily for the
benefit of the Union and only indirectly, for the individual
employees. (ABS-CBN Supervisors Employees Union V. ABSCBN)

Legal basis of check-off: statutes or in contracts.

Statutory limitation on check-offs:
Article 241 g
No officer, agent, or member of a labor organization shall collect
any fees, dues, or other contributions in its behalf or make any
disbursement of its money or funds unless he is duly authorized
pursuant to its constitution and by-laws. etc. See also 241 m,n,o.
DISINI:

Exceptions: (National Brewery and Allied Industries Labor Union v.

San Miguel Corporation, 1963):
1) Any employee who is a member of a religious group which
prohibits its members from joining labor unions on religious
grounds, at the time such agreement takes effect
2) Employees who, at the time such agreement takes effect, are
already members of a union other than the majority
3) Employees excluded from the closed-shop by express terms of
the agreement
Note: Employees who cannot join a union in the first place (i.e.
Confidential and Managerial) are obviously exempted as well.
How Construed: STRICTLY against the employer
Financial Security:
Gen. Rule: Employees wage CANNOT be used for Union purposes
Exception:
1) Union Dues
2) Check-Off

Requisites so that special assessment for unions incidental

expenses is valid:
Article 241 speaks of three (3) requisites that must be complied
with in order that the special assessment for Unions incidental
expenses, attorneys fees and representation expenses be valid and
upheld:
1.
Authorization by a written of the majority of all the
members at the general meeting for that purpose.
2.
Secretarys record of the meeting.
3.
Individual written authorization for check-off.
National Brewery and Allied Industries Labor Union v. San Miguel
Corporation (1963)
NOTE: In this case the SC cited different reasons why non-union
members cannot be compelled to pay agency fees but this case is
overturned by Art. 248 e.
AGENCY FEE now has a statutory basis
Art. 248 e 2nd paragraph: employees of an appropriate
bargaining unit who are not members of the recognized collective
bargaining agent mat be assessed a reasonable fee equivalent to
the dues and other fees paid by members of a recognized collective
bargaining agent, if such non-union member accepts the benefit
under the CBA
Take note: In the case of agency fee, individual authorization not
applied, or not required. This is for practical reasons, because the
law recognizes the extreme difficulty of imposing agency fee on
non-union members, more especially to members of rival unions.

DO No.40-03 Series of 2003

RULE XIII
ADMINISTRATION OF TRADE UNION FUNDS AND ACTIONS
ARISING THEREFROM
Section 1. Right of union to collect dues and agency fees. - The
incumbent bargaining agent shall continue to be entitled to checkoff and collect dues and agency fees despite the pendency of a
representation case, other inter/intra-union disputes or related
labor relations disputes.

SUMMARY OF NOTES
Definition:
Union Security Clause a term applied to any form of agreement
which imposes upon employees the obligation to acquire or retain
union membership, at the expense of their employment if they fail
to do so
Note: Observance of Due Process still holds
Closed Shop Agreement:
Gen. Rule: All employees in the bargaining unit are covered

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Part IV
APPROPRIATE BARGAINING UNIT

3. Prior CB history

5.01 DEFINITION AND ROLE IN LAW

Bargaining Unit: 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 [DO No. 40-03 series of 2003 Rule I (d)]
Appropriate Bargaining Unit: a group of employees of a given
employer comprised of all or less than all of the entire body of
employees, which the collective interests of all the employees,
consistent with equity to the employer, indicate to be best suited to
serve reciprocal rights and duties of the parties [Belyca Corp. vs
Calleja (1988)]

2. EQUITY - Of employees: A.k.a = Collective interest of

employees consistent with the equity of the employer.
3. PURPOSE - to serve the reciprocal rights & duties of the parties
under the CB provisions of the law

What is the function of an appropriate bargaining unit?

1. To act as a SOVEREIGN in relation to the CE and CBA
2. It is an ELECTORAL DISTRICT. It marks the boundaries of those
who may participate in a certification election.
3. It is an Economic Unit.
4. To select or designate a labor organization to represent them in
collective bargaining [Art. 255]
18. General Rule: the labor organization designated or selected by
the majority of the employees in an appropriate bargaining
unit shall be the exclusive representative of the employees in
such unit for the purpose of collective bargaining.
19. Exceptions:
1. an individual EE or group of Employees shall have the
right at any time to present grievances to their ER
2.

Any provision of law to the contrary notwithstanding and

subject to rules and regulations as the SOLE may
promulgate, workers shall have the right to participate in
policy and decision-making processes of the
establishment where they are employed in so far as said
processes will directly affect their RIGHTS, BENEFITS and
WELFARE.

Provision for LABOR MANAGEMENT COUNCILS

by workers and ERs representatives of
workers must be elected by at least a majority
of all employees in said establishment

5.02 DETERMINATION OF APPROPRIATE

BARGAINING UNIT

Rationale: if it worked well before, it will work well again

now

Note: Prior collective bargaining history is not conclusive

or determinative of what constitutes the appropriate
bargaining unit. [San Miguel Corp. v. Laguesma (1994)]

4. Employment status i.e. temporary, seasonal, & probationary

Employees

TEST of Grouping: COMMUNITY or MUTUALITY of INTERESTS

Rationale: Greater chance of success for the collective

bargaining process - the basic test of an asserted bargaining
units ACCEPTABILITY is won it is fundamentally the
combination w/c will best assure to all Employees the exercise
of their CB rights. This is related to the policy of the law in
ensuring the right to collective bargain.

Example of application: Casual employees were barred from

joining union of the permanent and regular employees.

Elements of an appropriate bargaining unit:

1. COMPOSITION - All or less than all of the entire body of
employees

DISINI:The law is looking only for what is PROPER OR APPROPRIATE.

The law is NOT looking for the best!

Can you have a permanent bargaining unit?

No. An appropriate bargaining unit depends on the factors that are
influenced by the market place. The bargaining unit is designed to
maintain the mutuality of interest among the employees in such
unit.
Reason to dissolve, change or expand a certain bargaining
unit: when THE INTEREST BETWEEN GROUPS HAS CHANGED
OVER TIME.

GEOGRAPHY LOCATION
The primary element in determining whether a given group of
employees constitute a proper bargaining unit is still whether it will,
without inequity to the employer, best serve all employees in the
exercise of their bargaining rights. Geography and location only play
a significant role if:

the separation between the camps and the different kinds of

work in each all militate in favor of the system of separate
bargaining units

when the problems and interests of the workers are peculiar in

each camp or department

the system of having one collective bargaining unit in each

camp has operated satisfactorily in the past
[Benguet Consolidated Inc. and Balatok Mining Co. v. Bobok
Lumberjack Assn. (1958)]

CORPORATE ENTITIES
Doctrine: It is grave abuse of discretion to treat 2 companies as a
single bargaining unit when these 2 companies are indubitably
distinct entities with separate juridical personalities.
In Umali vs CA, legal corporate entity is disregarded only if it is
sought to hold the officers and stockholders directly liable for
a corporate debt or obligation.
[Indophil Textile Mills Workers Union v. Calica (1992)]

1. FACTORS

Principles in determining whether to establish separate

bargaining units:

IN GENERAL

1.

The existence of a bonafide business relationship between the

2 companies is not proof of being a single corporate entity,
especially when the services provided by the other company
are merely auxiliary.

2.

The fact that there are as many bargaining units as there are
companies in a conglomeration of companies is a positive
proof that a corporation is endowed with a legal personality

Rothenberg [UP v. Ferrer-Calleja (1992) citing Democratic Labor

Assoc v. Cebu Stevedoring Co.] W-A-P-E
1. Will of the Employees
2. Affinity & unity of Employees interest, such as substantial
similarity of works and duties or similarity of compensation &
working conditions

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DISTINCTLY ITS OWN, independent and separate from other

corporations. [Diatagon Labor Federation v. Ople (1980)]

If you have one BIG bargaining unit, most probably you are
grouping together DIFFERENT SKILLED workers.

3.

Separate legitimate purposes militate against treating one

corporation as an adjunct or alter ego of the other.

Principles:

4.

The fact that the businesses are related, that some of the
employees are the same persons working in the other
company and the physical plants, offices and facilities are in
the same compound are NOT sufficient to justify piercing the
corporate veil. [Indophil Textile Mills Workers Union v. Calica
(1992)]

5.

6.

The transformation of companies is a management

prerogative and business judgment which the courts cannot
look into unless it is contrary to law, public policy or morals.
Determine who exercises supervision and control.
a. whether different management terms
b. enforcement of administrative and operational rules
c. maintenance of financial statements and auditing
d. cross-linking
of
command,
control
and
communication systems [Phil. Scouts Veterans v.
Torres (1993)]

3.

The will of the employees is the determinative factor.

4.

The plebiscite is to be conducted NOT by the DOLE but by the

Court itself, in keeping with the courts right to investigate
fully in matters concerning certification elections.

5.

The order of the court for the conduct of elections is an

interlocutory order certiorari is not proper.

[Kapisanan ng mga Manggagawa sa Manila Road Co. v. Yard

Crew Union (1960)]
3. SIZE OF UNIT AND EFFECT ON RIGHT TO SELF-ORGANIZATION
Filoil Refinery Corp. v Filoil Supervisory and
Confidential Employees Union (1972)

Rationale: highly skilled workers have to separate to increase their

market value

Since the confidential employees are very few in number and are by
practice and tradition identified with the supervisors in their role as
representatives of management vis--vis the rank and file
employees, such identity of interest has allowed their inclusion in
the bargaining of supervisors for purposes of collective bargaining
in turn as employees in relation to the company as their employer.
This identity of interest logically calls for their inclusion in the same
bargaining unit and at the
same time fulfills the laws objective of insuring to them the full
benefit of their right to self organization and to collective
bargaining, which could hardly be accomplished if the respondent
associations membership were to be broken up into five separate
ineffective tiny units. Creating fragmentary units would not serve
the interest of industrial peace. The breaking up of bargaining units
into tiny units will greatly impair their organizational value. Since
the confidential employees are very few and are identified with the
supervisors in their role as representatives of management vis-a-vis
the rank and file employees, such identity of interest
has allowed their inclusion in the bargaining unit of supervisorsmanagers for purposes of collective bargaining. Industrial court
enjoys a wide discretion in determining the procedure necessary to
insure the fair and free choice of bargaining representations by
employees. Action in deciding upon an appropriate unit for
collective bargaining purposes is discretionary. Its judgment is
entitled to finality, unless its action is arbitrary or capricious.

DISINI: A brief explanation of the GLOBE DOCTRINE

SUPERVISOR UNIT

It is best explained in the context of a market place and the demand

of employment on such market place. The GLOBE DOCTRINE usually
applies to employees with rare skills or highly technical ones.

Supervisors can be an appropriate bargaining unit.

Slazenger v. NLRC (1998)]

7.

If, considering the spin-offs, the companies would

consequently have their respective and distinctive concerns in
terms of nature of work, wages, hours of work and other
conditions of employment.

8.

The nature of their products and scales of business may

require different skills, volumes of work, and working
conditions which must necessarily be commensurate by
different compensation packages. [San Miguel ..Union v.
Confesor (1996)]

2. UNIT SEVERANCE AND THE GLOBE

DOCTRINE
Concept: the practice of the courts to hold a series of elections not
for the purpose of granting the right of representation to the group
garnering the majority vote but to let employees select on several
units to represent them [Kapisanan ng mga Manggagawa sa
Manila Road Co. v. Yard Crew Union (1960)]

Example: Case of Pilots and Stewardess.

If ,originally, pilots and stewardesses belong to ONE bargaining unit

(unit A) for the purpose of collective bargaining, with the use of the
GLOBE DOCTRINE a plebiscite can be held to determine if the pilot
employees would want to
form a separate bargaining unit (unit B).
Illustration:
Unit A (original bargaining unit): 100 Pilots + 200 Stewardesses =
300 employees
Unit B (proposed new unit): Pilots = 100 employees.
Those in unit B (100 pilots) will vote in a plebiscite. Their choices will
be
(1) To vote for Unit A: this would mean that they do not wish to
separate from the original bargaining unit.
(2) To vote for Unit B: This would mean that they would want to
form their OWN bargaining unit, composed of pilots only.
(3) Neither: They do not want the choices

[Dunlop

4. EFFECT OF PRIOR AGREEMENT

Rule: Prior agreement as to the inclusion or exclusion of workers in
a bargaining unit or prohibition from forming their own union
agreed upon by the corporation with the previous bargaining
representatives can never bind subsequent federations. [General
Rubber & Footwear Corp. v BLR, (1987)]
Rationale: It is a curtailment of the right to self-organization. During
the freedom period, the parties may not only renew the existing
collective bargaining agreement but may also propose and discuss
modifications or amendments thereto. [DLSU v. DLSUEA (2000)]

5.03 DETERMINING AGENCY

General Rule: The Bureau shall not entertain any petition for
certification election or any other action which may disturb the
administration of duly registered existing collective bargaining
agreements affecting the parties [Art. 232 sec. 15 of RA 6715]
Exceptions: Art. 253, 253-A and 256 of this Code (60 day freedom
period)

AGENCY AND FINALITY ORDER

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Filoil Refinery Corp. v Filoil Supervisory and

Confidential Employees Union (1972)
Industrial court enjoys a wide discretion in determining the
procedure necessary to insure the fair and free choice of bargaining
representations by employees, and that its action in deciding upon
an appropriate unit for collective bargaining
purpose is discretionary. Its judgment in this respect is entitled to
almost complete finality, unless its action is arbitrary or capricious
and that absent any grave abuse of discretion as to justify the
Courts intervention.

5.04 EXCLUSIVE BARGAINING

INDIVIDUAL UNION MEMBER

REPRESENTATIVE

AND

General Rule: the labor organization designated or selected by the

majority of the employees in an appropriate bargaining unit shall be
the exclusive representative of the employees in such unit for the
purpose of collective bargaining.
Exceptions:
1. an individual EE or group of Employees shall have the right at
any time to present grievances to their ER
2.

Any provision of law to the contrary notwithstanding and

subject to rules and regulations as the SOLE may promulgate,
workers shall have the right to participate in policy and
decision-making processes of the establishment where they
are employed in so far as said processes will directly affect
their RIGHTS, BENEFITS and WELFARE.

Provision for LABOR MANAGEMENT COUNCILS by

workers and ERs representatives of workers must be
elected by at least a majority of all employees in said
establishment

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bargaining agent. [Young Men Labor Union Stevedores v CIR
(1965)]

Part V
UNION REPRESENTATION
ESTABLISHING UNION MAJORITY
STATUS

CONCEPTS
Certification Election OR Consent Election: 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. [Department
Order No. 40-03 Series of 2003 Rule I (h)]

Purpose

Conduct

Certification election
Aimed at determining
the sole and exclusive
bargaining agent of all
employees
in
an
appropriate bargaining
unit for the purpose of
collective bargaining
1st Level of Choice:
Yes Union or No Union
2nd Level of Choice: If
Yes Union wins,
WHICH union.
[UST Faculty Union v.
Bitonio (1999)]

Consent Election
Merely to
determine the
issue of majority
representation of
all the workers in
the appropriate
collective
bargaining unit

Ordered by the DOLE

Voluntarily
agreed upon by
the parties, with
or
w/o
intervention from
DOLE

2. It is most DEMOCRATIC and most efficacious/effective way

(Samahang Manggagawa sa Permex case)
3. It is a STATUTORY POLICY (Belyca Corp. v. Ferrer-Calleja)

CERTIFICATION ELECTION
BACKGROUND POLICIES AND CHARACTERISTICS BEHIND A
CERTIFICATION ELECTION (IDS-DV)
1. It is not litigation, but a mere investigation of a non-adversary
character
2. Object of the proceedings is not the decision of any
alleged commission of wrong nor asserted deprivation of right,
but is merely the determination of proper bargaining units and
the ascertainment of the will and choice and choice of the
employees in respect of the selection of the bargaining
representative. The determination of the proceeding does not
entail the entry of remedial orders or redress of rights, but
culmination solely in an official designation of bargaining units
and an affirmation of the employees expressed choice of

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IMPLICATION: Thus it should not be circumvented

[George & Peter Lines, Inc. v. Associated Labor Union
(1985)]. There should be no obstacle in conducting the
Certification election.

4. There can be no direct certification

6.

From the very nature of consent election, it is a separate and

distinct process and has nothing to do with the import and effect of
a certification election. Neither does it shorten the terms of an
existing CBA nor entitle the participants thereof to immediately
renegotiate an existing CBA although it does not preclude the
workers from exercising their right to choose their sole and
exclusive bargaining representative after the expiration of the sixty
(60) day freedom period.
[Warren Manufacturing Workers Union vs. The Bureau Of Labor
Relations (1988)]
Run-off Election: an election between the labor unions receiving
the two (2) highest number of votes in a certification or consent
election with three (3) or more choices
Conditions:
1. such a certified or consent election results in none
of the 3 or more choices receiving the majority of
the valid votes cast
2. the total number of votes cast for all contending
unions is at least 50% of the number of votes cast
[Department Order No. 40-03 Series of 2003 Rule I
(ss)]

IMPLICATION: Technical rules and objections should not

hamper the correct ascertainment of the labor union that
has the support and confidence of the majority of the
workers and is thus entitled to represent them in
bargaining for the terms and conditions of their
employment. (Port Workers Union v. DOLE)

Rationale for prohibition: The main purpose of the

procedure in Art. 257 - 260 is to aid in ascertaining the
majority representation. The implementing rules
pertinent to these provision are all calculated to ensure
that the certified bargaining rep is the TRUE CHOICE OF
THE EMPLOYEES against all contender. The constitutional
mandate that the State shall assure the rights of the
workers to selforganization, collective bargaining,
security of tenure and just and humane conditions of
work, should be achieved under a system of law such as
the aforementioned provisions of the pertinent statute.
[Colgate Palmolive Philippines v. Ople(1988)]

There can be no voluntary recognition

Rationale for prohibition: Certification election is the

best and most appropriate means of ascertaining the will
of the employees as to their choice of an exclusive
bargaining representative. That there are no competing
unions involved should not alter that principle. The
freedom of choice by the employer being the primordial
consideration, besides the fact that the employees can
choose between ALU, the union, and NO union. (George
& Peter Lines, Inc. v. ALU, 1985)

This has been a debatable topic. Even after the Supreme

Court made the ruling, the DOLE still included provisions
o Voluntary Recoginition in DO No. 40-03 series of 20031.

Rule I: (bbb) "Voluntary Recognition" refers to the process

by which a legitimate labor union is recognized by the employer as the
exclusive bargaining representative or agent in a bargaining unit,
reported with the Regional Office in accordance with Rule VII, Section 2
of these Rules.
Rule VI Section 2. Determination of representation status;
modes. The determination of an exclusive bargaining agent shall be
through voluntary recognition in cases where there is only one
legitimate labor organization operating within the bargaining unit, or
through certification, run-off or consent election as provided in these
Rules.
RULE VII: VOLUNTARY RECOGNITION
Section 1. When and where to file. In unorganized
establishments with only one legitimate labor organization, the
employer may voluntarily recognize the representation status of such a
union. Within thirty (30) days from such recognition, the employer and
union shall submit a notice of voluntary recognition with the Regional
Office which issued the recognized labor union's certificate of
registration or certificate of creationof a chartered local.
Section 2. Requirements for voluntary recognition. - The
notice of voluntary recognition shall be accompanied by the original
copy and two(2) duplicate copies of the following documents:
(a) a joint statement under oath of voluntary recognition
attesting to the fact of voluntary recognition;
(b) certificate of posting of the joint statement of voluntary
recognition for fifteen (15) consecutive days in at least two (2)
conspicuous places in the establishment or bargaining unit where the
union seeks to operate;

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So the issue now is which should prevail? Azucena in his

book recognizes Voluntary Recognition as valid and
welcomes it as a new development to the law.
7.

An employer-employee relationship a PRE-CONDITION before

a petition for certification election can be entertained

8.

Rationale: Without such relationship, there will be no

duty to bargain on the part of either the employer or
employee. Thus it will be senseless to go on with a
certification election to choose their bargaining
representative when there is no duty to collectively
bargain anyway. (Allied Free Workers Union v. Cia
Maritima, 1967)

Non-union members are not excluded from voting in the

certification election

Neither law, administrative rule nor jurisprudence

requires that only employees affiliated with any labor
organization may take part in a certification election. On
the contrary, the plainly discernible intendment of the
law is to grant the right to vote to all bona fide
employees in the bargaining unit, whether they are
members of a labor organization or not. [Reyes v.
Trajano (1992)]

7. The receipt by the excluded employees of certain benefits under

the existing CBA does not bar them from forming their own labor
organization and from participating in the certification election.
[Barbizon v. Nagkakaisang Supervisor (1996)]

the same.
I.

Art. 256: Organized Establishments

Organized establishment: an establishment with either

a. an existing CBA; or
b. duly certified bargaining agent
II.

Art. 257: Unorganized Establishments

Unorganized establishment: an establishment without a

bargaining representative
III.

Art. 258: Employer-Initiated Certificate Election

B. The BARS to a CE: Prevents the happening of a CE.

a. Contract bar rule (Art. 232)
b. Deadlock-bar rule
c. One year bar rule
Note: among all the bar rules, only the contract bar is actually
in the Labor Code, the other two are in the implementing rules.
C. Suspension of CE: Prejudicial question rule

Detailed Discussion of the Framework

A. The different entry points to a certification election

STATUTORY FRAME-WORK AND POLICY

I. Art. 256: Organized Establishment

Statutory Frame-work

Requisites for holding certification election:

A. The different entry points to a certification election

a.

Verified petition, supported by at least 25% of all the

employees in the bargaining unit, questioning the
majority status of the incumbent bargaining agent

b.

Filed before the DOLE withing the 60-day period before

the expiration of the collective bargaining agreement

Note: The mechanics of the three entry-points are similar and

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

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Note: In relation to the one-year bar rule, a duly certified bargaining

agent is allowed one year to negotiate for the signing of a CBA, that
is why no CE can be filed at this time.
Requisite for valid election: at least a majority of all eligible voters
in the unit must have cast their votes
Organized Establishment v. Unorganized Establishment
(The distinctions are important because the requirements are
different.)

Bargaining
agent
Petition filed
Freedom Period

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Art. 256:
ORGANIZED
Existing, has one

Art. 257:
UNORGANIZED
None

Has to be a
VERIFIED petition
No petition for
Certification
election
EXCEPT
within 60 days
before
the
expiration of the
collective
bargaining
agreement
(See
Art. 253 & 253-A)

No need to be
Verified
Not applicable.
No freedom period.
Can file petition
anytime.

Take note how SC

interpreted
the
term WITHIN.
What
is
rationale

the
of

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Substantial support
rule

LABOR RELATIONS

freedom period in
Organized
establishments,
why is there none in
unorganized
establishments?

substantial support requirement, the BLR may exercise its discretion

in determining whether or not a certification election must be
conducted. [Scout Albano Memorial College v. Noriel (1978)]

It has something to
do with industrial
peace
Must be duly
supported by 25%
of ALL THE
MEMBERS OF THE
APPROPRIATE
BARGAINING
UNIT.

No a rival union may not. Only the department of labor has

authority to verify. (Todays Knitting Free Workers Union v.
Noriel,1977)

Percentage base:
all members of an
appropriate
bargaining unit.

Does a RIVAL union have authority to VERIFY the signatures in the

substantial support requirement?

NO substantial
support rule.
WHY?
Intention of law is
to bring in the
union, to
implement policy
behind Art. 211a.

What is the effect on a petition of certification election of the

withdrawal from union membership filed by that
union?
Once the required percentage requirement has been reached, the
employees withdrawal from union membership taking place after
the filing of the petition for certification election will not affect the
petition. On the contrary the presumption arises that the
withdrawal was not free but was procured through duress,
coercion, or for a valuable consideration. (Oriental Tin Can Labor
Union v. Secretary of Labor and Employment, 1998)
II. Art. 257: Unorganized Establishment

What is intent and

purpose of law for
requiring the
substantial support
rule?
Law wants to know
the intention
of the employees.
If they really want
a CE, since they
already have a
bargaining agent.

Who shall file the petition under Art. 257?

A LEGITIMATE labor organization. It cannot be an unregistered labor
organization. This is best read in relation to Art. 242 which
enumerates the rights granted to a legitimate labor organization
and one of those rights is the right to be chosen as the exclusive
bargaining representative. This is one way the law encourages
union registration.
VENUE: Where to file? BLR region where union is. The one nearer
to the employees.

DISCUSSIONS ON THE FREEDOM PERIOD

III. Art. 258: Employer-Initiated Petition

General Rule: The Bureau shall not entertain any petition for
certification election or any other action which may disturb the
administration of duly registered existing collective bargaining
agreements affecting the parties [Art. 232 sec. 15 of RA 6715]
Exceptions: Art. 253, 253-A and 256 of this Code (60 day freedom
period)
The purpose of the prohibition against the filing of a
petition for certification election outside the so-called freedom
period is to ensure industrial peace between the employer and
its employees during the existence of the CBA. [Republic
Planters Bank Unionv. Laguesma (1996)]
The premature renewal of a CBA cannot bar the holding
of a certification election by virtue of a bona fide petition filed
within the freedom period if the clear intention was to
frustrate the constitutional right of the employees to selforganization. [Associated Labor Union v. Calleja (1989)]

When can an employer file a petition?

Only when it is requested to bargain collectively.
Principles:
1.

Employer is a TOTAL STRANGER in the process of Certification

Election. Employer has NO STANDING to file a MOTION TO
DISMISS (Phil. Telephone Telegraph v. SOL)

2.

A companys interference in the CE creates a suspicion that it

intends to establish a company union (Oriental Tin Can Labor
Union v. Secretary of Labor).

CONDUCTING AGENCY

Bureau of Labor Relations [Art. 226 & 258]

1.

All certification cases shall be decided within 20 working days

DISCUSSION ON THE SUBSTANTIAL SUPPORT RULE IN ORGANIZED

ESTABLISHMENTS

2.

The BLR shall conduct the certification election within 20 days

NOTE: A union that is merely filing a MOTION FOR INTERVENTION in

a CE filed by another union need NOT present substantial support.
The substantial support is only needed when filing for a petition for
certification election.

Certification ElectionProcess and Procedure

DO No. 40-03
WHO may file? Sec. 1

When should the substantial support be shown or complied with?

It need not be shown at the time of filing of the petition, may be
shown within a reasonable time thereafter but should be
before the election. [Port Workers Union of the Philippines v.
Laguesma]
Is the substantial support rule a mandatory requirement?
If you strictly follow the letter of the law it would seem to be
mandatory. However, if the petition does not comply with the

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1) Any legitimate labor organization

may
file a petition for certification
election.
2) When requested to bargain
collectively, an employer may file a
petition for certification election
with the
Regional Office.
3) If there is no existing registered
collective bargaining agreement in

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be filed only within sixty (60) days
prior to its expiry.

the
bargaining unit, the Regional Office
shall,
after hearing, order the conduct of a
certification election.
WHERE to file?
Sec. 2

Regional Office which

issued the petitioning union's
certificate
of registration/certificate of creation
of
chartered local.

The petition shall be heard

and resolved by the Med-Arbiter.

Where two or more

petitions involving the same
bargaining unit are filed in one
Regional Office, the same shall be
automatically consolidated with the
Med-Arbiter who first acquired
jurisdiction.

Where the petitions are

filed in different Regional Offices, the
Regional Office in which the petition
was first filed shall exclude all
others; in which case, the latter shall
indorse the petition to the former
for consolidation.

WHEN to file?
Sec. 3

A petition for certification election

may be filed anytime, except:
(a) when a fact of voluntary
recognition has been entered or a
valid certification, consent or run-off
election has been conducted within
the bargaining unit within one (1)
year prior to the filing of
the petition for certification election.

Where an appeal has been

filed from the order of the MedArbiter certifying the results of the
election, the running of the
one year period shall be suspended
until the decision on the appeal has
become final and executory;
(b) when the duly certified union has
commenced and sustained
negotiations in good faith with the
employer in accordance with Article
250 of the Labor Code within the
one year period referred to in the
immediately preceding paragraph;
(c) when a bargaining deadlock to
which an incumbent or certified
bargaining agent is a party had been
submitted to conciliation or
arbitration or had become the
subject of a valid notice of strike or
lockout;
(d) when a collective bargaining
agreement between the employer
and a duly recognized or certified
bargaining agent has been registered
in accordance with Article 231 of the
Labor Code.

What is a forced intervenor?

The incumbent bargaining agent shall automatically be one of the
choices in the certification election as forced intervenor. [Sec. 7
D.O. 40-03]
POSTING OF NOTICE
General Rule: Mandatory posting of election notices for 5 days.
Exception: Posting of election notices may be waived. [Jisscor
Independent Union v Torres (1993)]
VOTING LIST AND VOTERS
Basis of determining voters may be agreed upon by the parties (i.e.
the use pf payroll) [Acoje Workers Union v NAMAWU (1963)]
EFFECT NON-PARTICIPATION PREVIOUS ELECTION
Failure to take part in previous elections is no bar to the right to
participate in future elections. No law, administrative rule or
precedent prescribes forfeiture of the right to vote by reason of
neglect to exercise the right in past cases. [Reyes v. Trajano (1992)]
ALL EMPLOYEES ENTITLED TO VOTE
1.

Where such collective

bargaining agreement is registered,
the petition may

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All rank-and-file employees in the appropriate bargaining unit:

The Code makes no distinction as to their employment status.
All they need to be eligible to support the petition is to belong
to a bargaining unit. [Airtime Specialists, Inc. v Director of BLR
(1990)]

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Rationale: Collective bargaining covers all

aspects of the employment relation and the resultant
CBA binds all employees in the bargaining unit. All rank
and file employees, probationary or permanent, have a
substantial interest in the selection of the bargaining
representative.
2.

Certification Election at a glance

Filing of petition for certification election
Hearing and resolution by Med-Arbiter

Employees who have been improperly laid off but who have a
present, unabandoned right to or expectation of
reemployment, are eligible to vote in certification elections. If
the dismissal is under question, employees concerned could
still qualify to vote in the elections. [Philippine Fruits v Torres
(211 SCRA 95)]

Conduct of certification election

Filing of protest at the close of the certification election

CHALLENGE VOTER

Protest formalized within 5 days from close of election

An employer has no standing to question a certification election

since this is the sole concern of the workers but may question the
inclusion of any disqualified employee in the certification election
during the exclusion-inclusion proceedings before the
representation officer. [Phil. Telephone & Telegraph Co. v
Laguesma (1993)]
VOTING DAY

Appeal decision of the Med-Arbiter to the Secretary of Labor

Appeal to be decided within 15 calendar days

B. Bars to the Certification Election

The election shall be set on a regular business day. [Section 2, Rule

VI,Book VI of the Rules to Implement the Labor Code]

1.

THE CONTRACT BAR RULE (Art. 232)

PROTEST

GENERAL RULE: The bureau shall NOT entertain any petition for
certification election.

Requirements in order that a protest filed

would prosper [Philippine Fruits and Vegetables Industries v.
Torres (1992)]:

EXCEPT: (Freedom period)Art. 253, 253-A, 256: Within 60 days

before expiration of the five year term of the CBA.

1.

The protest must be filed with the representation officer and

made of record in the minutes of the proceedings before the
close of election proceedings, and

The contract bar rule can be validly invoked only if the

existing CBA contains substantially those materials that should be
included in the CBA at the time of the filing of the petition for
certification election. [Buklod ng Saulog Transit v. Casalla (1956)]

2.

The protest must be formalized before the Med-Arbiter within

five (5) days after the close of the election proceedings.

What if a CBA is not registered but validly entered into by the

parties, will it bar a petition for CE?

Protests not so raised are deemed waived. [Jisscor

Independent Union v Torres (1993)]

Disini: It will, applying by analogy Trade Union of Philippines v.

Laguesma which says that none compliance with a procedural
requirement (in this case it was a late filing of the CBA) should not
adversely affect the substantive validity of the CBA.

Appeal from Certification Election Orders [Art. 259]

Ground: the rules and regulations or parts thereof established by
the Secretary of Labor for the conduct of election have been
violated
Period for decision: 15 calendar days

Referral of the appeal to the Trade Union Congress of the

Philippines (TUCP), a federation of labor unions is glaringly illegal
and void. The Labor Code never intended that the Director of Labor
Relations should abdicate, delegate and relinquish his arbitrational
prerogatives in favor of a private person or entity or to a federation
of trade unions. Article 226, 259, 260 are mandatory and should be
strictly adhered to. They are part and parcel of the adequate
administrative machinery established by the Labor Code for the
expeditious settlement of labor disputes. [Ilaw at Buklod ng
Manggagawa v. Dir. Of Labor Relations. 91 SCRA 482]
ANNULMENT

What is the effect of an expired CBA on the contract bar rule?

No petition for CE may be filed after the lapse of the 60 day
freedom period. The old CBA is extended until a new one is filed.
The purpose is to ensure stability in the relationship of the workers
and the company by preventing frequent modifications of any CBA
earlier entered into by them in good faith and for the stipulated
original period.
What if the CBA was suspended?
Under Art. 253-A the representation limit for the exclusive
bargaining agent applies only when there is an extant CBA in full
force and effect. In the instant case, the parties agreed to suspend
the CBA and put in abeyance the limit on the representation period.
(Rivera v. Espiritu GR no. 135547 January 23, 2002)
2. DEADLOCK-BAR RULE
Requisites:

General allegation of duress is not sufficient to invalidate

a certification election; it must be shown by competent and credible
proof. [United Employees Union of Gelmart Inv. v. Noriel (1975)]
Irregularities that may invalidate certification election:
inability of workers to vote
failure to safeguard secrecy of the ballot
intimidation of election supervisors and neglect in
performance of duties
[Confederation of Citizens Labor Union v. Noriel (1982)]

c.
d.
e.

1.

Parties must have negotiated in good faith.

2.

Deadlock must have been submitted to voluntary

arbitration or a valid subject of a valid notice of strike or
lock-out.

3.

ONE-YEAR BAR RULE

From time of valid certification election. Not from time of

final resolution of appeal.

1.

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DATE OF ELECTION:
Date election is certified

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2.

LABOR RELATIONS

If APPEALED, date when finally resolved

C. SUSPENSION PREJUDICIAL QUESTION RULE

*Should be read in relation to Art. 248d: ULP: It shall be unlawful
for an employer to commit any of the following unfair labor
practice. (d) To initiate, dominate, assist or otherwise interfere with
the formation or administration of any labor organization, including
the giving of financial or other support to it or its organizers or
supporters.
WHAT SUSPENDS: Formal charge of ULP against the employer for
establishing a company union.
WHO MAY ASK FOR SUSPENSION: Only a union. CE cannot be
suspended based on a pendency of a formal charge of ULP against a
labor organization.
RATIONALE FOR SUSPENSION: If there is a union dominated by the
company, to which some of the workers belong, an election among
workers and employees of the company would not reflect the true
sentiment and wishes of the said workers and employees because
the votes of the members of the dominated union would not be
free. Such charge of company domination is a prejudicial question
that until decided, shall suspend or bar proceedings for certification
election. If it were a labor organization objecting to the
participation in a certification election of a company-dominated
union, as a result of which a
complaint for an unfair labor practice case against the employer
was filed, the status of the latter union must be first cleared in such
a proceeding before such voting could take place. The reason is that
the certification election may lead to the selection of an employer
dominated or company union as the employees' bargaining
representative, and when the court
finds that said union is employer-dominated in the unfair labor
practice case, the union selected would be decertified and the
whole election proceedings would be rendered useless and
nugatory.' There would be an impairment of the integrity of the
collective bargaining process if a company-dominated union were
allowed to participate in a certification election. [United CMC
Textile Workers Union v. BLR (1984)]

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LABOR LAW II

LABOR RELATIONS

Part VI
COLLECTIVE BARGAINING

The Labor Code authorizes parties to provide for their own

procedures in Collective Bargaining but it must be more
EXPEDITIOUS that that provided in Art. 250.
o
If they are unable to agree they must follow
procedure in the labor code (Art. 250).

IMPLEMENTING PROVISIONS
1. PROCEDURE Art. 250
Art. 251
Cf. Art. 233

IMPLICATION: Provisions of this code are only supplementary

not mandatory with regards to the process of collective bargaining.
Because it is the policy of the state to promote the primacy of FREE
collective bargaining. (211a).

2. DUTY TO BARGAIN Art. 252

COLLECTIVELY
Art. 253

2. CODE PROCEDURE

3. TERMS Art. 253-A

Art. 250
Party desiring to bargain collectively shall serve written notice on
other party with statement of proposals

7.01 GENERAL CONCEPTS

1. POLICY DECLARATION

Reply by other party within 10 calendar days from receipt of notice

1987 Constitution. Art. XIII, Sec. 3

The State shall guarantee the rights of workers to

collective bargaining and negotiations.

The State shall promote the principle of shared

responsibilities between workers and employers and the
preferential use of voluntary modes in settling disputes,
including conciliation, and shall enforce their mutual
compliance therewith to foster industrial peace.

Labor Code, Art 211

(a) To promote and emphasize the primacy of FREE COLLECTIVE
BARGAINING and negotiations, including voluntary arbitration,
mediation and conciliation, as modes of setting labor or industrial
disputes;
Kiok Loy v. NLRC (1986)
Collective bargaining which is defined as negotiations towards a
collective agreement, is one of the democratic frameworks under
the New Labor Code, designed to stabilize the relation between
labor and management and to create a climate of sound and stable
industrial peace. It is a mutual responsibility of the employer and
the Union and is characterized as a legal obligation. So much so that
Article 249, par. (g) of the Labor
Code makes it an unfair labor practice for an employer to refuse "to
meet and convene promptly and expeditiously in good faith for the
purpose of negotiating an agreement with respect to wages, hours
of work, and all other terms and conditions of employment
including proposals for adjusting any grievance or question arising
under such an agreement and executing a contract incorporating
such agreement, if requested by either party. "

Should differences arise, request for conference: within 10 days

from date of request
If dispute not settled, Board shall intervene on request or motu
proprio & call parties to conciliation meetings

NOTE: These procedures are DIRECTORY in nature and not

mandatory, failure to comply with the prescribed time periods will
not amount to an unfair labor practice.
3. CONCILIATION PROCEDURE
Art. 250 (c) If the dispute is not settled, the Board shall intervene
upon request of either or both parties or at its own initiative and
immediately call the parties to conciliation meetings.
During conciliation proceedings:
1.

The Board shall have the power to issue subpoenas requiring

the attendance of the parties to such meetings.

2.

It shall be the duty of the parties to participate fully and

promptly in the conciliation meetings the Board may call;

3.

The parties are prohibited from doing any act which may
disrupt or impede the early settlement of the disputes; and

4.

The Board shall exert all efforts to settle disputes amicably and
encourage the parties to submit their case to a voluntary
arbitrator.
Privileged Communication (Art. 233)
Information and statements made at conciliation proceedings
shall be treated as privileged communication and shall not be
used as evidence in the Commission.

2. NATURE AND PURPOSE

5.

The institution of collective bargaining is a prime manifestation of

industrial democracy at work. The two parties to the relationship,
labor and management, make their own rules by coming to terms.
That is to govern themselves in matters that really count. [United
Employees Union of Gelmart Industries v. Noriel (1975)]

6.

3. WAIVER

7.03 DUTY TO BARGAIN

The right to free collective bargaining includes the right to suspend

it. [Rivera v. Espiritu (2000)]
7.02 BARGAINING PROCEDURE

Meaning of duty to bargain collectively:

A.

1. PRIVATE PROCEDURE
Art. 251 Duty to bargain collectively in the absence of collective
bargaining agreements. In the ABSCENCE of an agreement or
other VOLUNTARY ARRANGEMENT providing for a MORE
EXPEDITIOUS manner of collective bargaining, it shall be the duty of
the employer and the representatives of the employees to bargain
collectively in accordance with the provisions of this Code.

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Conciliators and similar officials shall not testify in any court or

body regarding any matters taken up at conciliation
proceedings conducted by them.

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. [Art. 252]

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LABOR RELATIONS

1. POSITIVE STATEMENT

obligation is an unfair labor practice. [Republic Savings Bank v. CIR

(1967)]

NATURE of duty to bargain: Mutual Obligation

HOW: to meet and convene promptly and expeditiously in good
faith.
PURPOSE: for the purpose of negotiating an agreement(CBA)
NEGOTIABLE ISSUES: 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

DEADLOCK
Collective Bargaining Deadlock: the situation between the labor
and the management of the company where there is failure in the
collective bargaining negotiations resulting in a stalemate [San
Miguel Corporation v. NLRC (1999)]
Ground for strike or lockout [Rule XXII, Section I, of the Rules
and Regulations Implementing Book V the Labor Code]

2. NEGATIVE STATEMENT DUTY:

MINUTES OF NEGOTIATION

but such duty does not compel any party to agree to a proposal
or to make any concession.

The Minutes reflects the proceedings and discussions undertaken in

the process of bargaining for worker benefits in the same way that
the minutes of court proceedings show what transpired therein. At
the negotiations, it is but natural for both management and labor to
adopt positions or make demands and offer proposals and counterproposals. However, nothing is considered final until the parties
have reached an agreement. Where a proposal raised by a
contracting party does not find print in the CBA, it is not a part
thereof and the proponent has no claim whatsoever to its
implementation.[Samahang Manggagawa sa Top Form v. NLRC
(1998)]

3. EXECUTION OF A CONTRACT: Art. 252 also states that it is part of

the duty to bargain to execute a contract incorporating such
agreements if requested by either party.
B.

When there is a collective bargaining agreement, the duty to

bargain collectively shall also mean that neither party shall
terminate or modify such agreement during its lifetime. [Art.
253]
Exception: either party can serve a written notice to
terminate or modify the agreement at least sixty (60)
days prior to its expiration date BUT it shall be the duty of
both parties to keep the status quo and to continue in full
force and effect the term and conditions of the existing
agreement during the 60-day period and/or until a new
agreement is reached by the parties.

Rights of the parties:

1.

2.

Right of legitimate labor organization to be furnished by

the employer with annual audited financial statements,
including the balance sheet and profit and loss
statement, upon request [Art. 242 (c)]
The parties shall, at the request of either of them, make
available such up-to-date financial information on the
economic situation of the undertaking, which is normally
submitted to relevant government agencies, as is
material and necessary for meaningful negotiations.

Where the disclosure of some of this information could

be prejudicial to the undertaking, its communication may be
made condition upon a commitment that it would be regarded
as confidential to the extent required.
The information to be made available may be agreed
upon between the parties to collective bargaining.
[DO No.40-03 Seriies of 2003, RULE XVI, Section 2]

In order to allow the employer to validly suspend the bargaining

process there must be a valid petition for certification election
raising a legitimate representation issue. Hence, the mere filing of a
petition for certification election does not ipso facto justify the
suspension of negotiation by the employer. The petition must first
comply with the provisions of the Labor Code and its Implementing
Rules. [Colegio de San Juan de Letran v. Assn. of Employees (2000)]
7.04 BARGAINABLE ISSUES
BARGAINABLE ISSUES: wages, hours of work and all other terms
and conditions of employment including proposals for adjusting any
grievances or questions arising under such agreement
What do we mean by all other terms and conditions of
employment?
The other terms and conditions of employment to become a
mandatory bargainable issue must have a connection between the
proposal and the nature of the work.

Example of what falls under this statement:

Stewardess bargains for better uniforms.
Example of what does not fall under this statement:
A company janitor asks for a car.

Importance of determining whether an issue is a mandatory

bargaining issue or only a permissive bargaining issue:

DOCTRINES
While it is a mutual obligation, the employer is not under any
legal duty to initiate contract negotiation.
The mechanics of collective bargaining is set in motion when the
following are present:
(1) possession of the status of majority representation of the
employees' representative in accordance with any of the means of
selection or designation provided for by the Labor Code,
(2) proof of majority representation and
(3) a demand to bargain under Article 251, par. (a) of the New Labor
Code. [Kiok Loy v NLRC (1986)]
Collective bargaining does not end with the execution of an
agreement. It is a continuous process. The duty to bargain imposes
on the parties during the term of their agreement the
mutual obligation "to meet and confer promptly and expeditiously
and in good faith . . . for the purpose of adjusting any grievances or
question arising under such agreement" and a violation of this

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SUSPENSION OF BARGAINING

"The question as to what are mandatory and what are merely

permissive subjects of collective bargaining is of significance on the
right of a party to insist on his position to the point of stalemate. A
party may refuse to enter into a collective bargaining contract
unless it includes a desired provision as to a matter which is a
mandatory subject of collective bargaining; but a refusal to contract
unless the agreement covers a matter which is not a mandatory
subject is in substance a refusal to bargain about matters which are
mandatory subjects of collective bargaining; and it is no answer to
the charge of refusal to bargain in good faith that the insistence on
the disputed clause was not the sole cause of the failure to agree or
that agreement was not reached with respect to other disputed
clauses." [Samahang Manggagawa sa Top Form v. NLRC (1998)]

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The consequences are different for the refusal to bargain.

If mandatory issue, refusal to bargain could lead to:

- A case of Unfair Labor Practice
- May be a valid ground for a strike or lockout

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LABOR RELATIONS

If permissive issue, refusal to bargain will NOT

produce a case for ULP, NOR will it allow that
economic weapons be used. Cannot strike or lockout.

Guidelines:
1.

2.

The question of minimum wage is not negotiable.Phil

American Mgt Co. v. Phil. American Mgt Employees
(1973)

REGISTRATION PERIOD, REQUIREMENTS AND ACTIONS

Art. 231 - Registry of unions and file of CBAs
Within 30 days from execution of CBA, parties must submit copies
to Bureau or DOLE Regional Office for registration, accompanied by
verified proofs of posting in workplace and ratification
Bureau or Regional Offices to act on application within 5 days from
receipt of CBA

Retirement plan is negotiable. [Nestle Phil. V NLRC

(1991)]

Regional Offices to furnish Bureau copy within 5 days from

submission

7.05 THE COLLECTIVE BARGAINING AGREEMENT

Definition: a contract executed upon request of either the
employer or the exclusive bargaining representative incorporating
the agreement reached after negotiations 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.
Note: While the terms and conditions of a CBA constitute the
law between the parties, it is not, however, an ordinary contract to
which is applied the principles of law governing ordinary contracts.
A CBA, as a labor contract within the contemplation of Article 1700
Civil Code which governs the relations between labor and capital, is
not merely contractual in nature but impressed with public interest,
thus, it must yield to the common good.

Bureau or Regional Office shall assess employer a registration fee

Bureau shall maintain file of all CBAs and other related agreements
General Rule: The file shall be open and accessible to interested
parties
Exceptions:
1. no specific information submitted I confidence shall be
disclosed unless authorized by the Secretary of Labor
2. when it is at issue in any judicial litigation
when public interest or national security so requires

[Davao Integrated Port Stevedoring Services v. Abrquez (93)]

CONTRACT BENEFICIARIES

CONTENTS

Who are the beneficiaries to a CBA? All workers in an ABU

Effect Sub-standard Contract: entering into CBA which provides

terms and conditions of employment below minimum standards
established by law is a ground for cancellation of union registration
[Art. 239 (f)]

In a long line of cases, this Court has held that when a collective
bargaining contract is entered into by the union representing the
employees and the employer, even the nonmember employees are
entitled to the benefits of the contract. To accord its benefits only
to members of the union without any valid reason would constitute
undue discrimination against nonmembers. [New Pacific Timber
and Supply v. NLRC (2000)]

Duration and Re-negotiation

Art. 253-A Terms of a collective bargaining agreement.

CONTRACT ADMINISTRATION AND ENFORCEMENT

POLITICAL ASPECT: Any Collective Bargaining Agreement that the

parties may enter into shall, insofar as the representation aspect is
concerned, be for a term of five (5) years.

No petition questioning the majority status of the

incumbent bargaining agent shall be entertained
and no certification election shall be conducted by
the DOLE outside of the sixty-day period
immediately before the date of the expiry of such
five year term of the Collective Bargaining
Agreement.

Nature of the Contract

In Mactan Workers Union vs. Aboitiz, we held that the terms
and conditions of a collective bargaining contract constitute the law
between the parties. Those who are entitled to its benefits can
invoke its provisions. In the event that an obligation therein
imposed is not fulfilled, the aggrieved party has the right to go to
court for redress. [Babcock-Hitachi (Phils.) V. Babcock-Hitachi
(2005)]

ECONOMIC ASPECT: All other provisions of the CBA shall be

renegotiated not later than three (3) years after its execution.

Any agreement on such other provisions of the CBA

entered into within six months from the 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 six

months, the parties shall agree on the duration of
the retroactivity thereof.

In case of a deadlock in the renegotiation of the

CBA, the parties may exercise their rights under this
Code.

A collective bargaining agreement, just like any other contract,

is respected as the law between the contracting parties and
compliance therewith in good faith is mandated. Similarly, the rules
embodied in the Civil Code on the proper interpretation of
contracts can very well govern. The intention of the parties is
primodial; if the terms of the contract are clear, the literal meaning
of the stipulations shall control, but if the words appear to be
contrary to the evident intention of the parties, the latter shall
prevail over the former. [Kimberly Clark Phils. V. Lorredo (1993)]

Grievance Procedure

What is to be included in the CBA?

What are subject of the grievance procedure for adjustment and

resolution are grievances arising from the interpretation or
implementation of the collective bargaining agreement. [Navarro III
v. Damasco (1995)]

1.

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GRIEVANCE PROCEDURE; Dispute issues and Individual Grievance

Art. 260 Grievance Machinery and Voluntary Arbitration.

2.

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provisions that will ensure the mutual observance of its terms

and conditions
a machinery for the adjustment and resolution of grievances
arising from:
a. the interpretation or implementation of their CBA
and

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LABOR LAW II
b.

LABOR RELATIONS

those arising from the interpretation

enforcement of company personnel policies.

or

Procedure:
1.

parties to a CBA shall:

a. name and designate in advance a Voluntary
Arbitrator or panel of Voluntary Arbitrators, OR
b. include in the agreement a procedure for the
selection of such Voluntary Arbitrator or panel of
Voluntary Arbitrators preferably from the listing of
qualified Voluntary Arbitrators duly accredited by
the Board.
In case the parties fail to select a Voluntary Arbitrator or
panel of Voluntary Arbitrators, the Board shall designate the
Voluntary Arbitrator or panel of Voluntary Arbitrators, as may
be necessary, pursuant to the selection procedure agreed
upon in the CBA, which shall act with the same force and
effect as if the Voluntary Arbitrator or panel of Arbitrators has
been selected by the parties as described above.

2. All grievances submitted to the grievance machinery which are

not settled within 7 calendar days from the date of its submission
shall automatically be referred to voluntary arbitration prescribed
in the CBA.
3. However, an individual employee or group of employees shall
have the right at any time to present grievances to their
employer. [Art. 255]
Doctrines:
1.

It should be remembered that a grievance procedure is part of

the continuous process of collective bargaining It is intended
to promote a friendly dialogue between labor and
management as a means of maintaining industrial
peace.[Master Iron Labor Union v. NLRC (1993)]

2.

No particular setup for a grievance machinery is mandated by

law. Rather, Article 260 of the Labor Code, as incorporated by
RA 6715, provides for only a single grievance machinery in the
company to settle problems arising from "interpretation or
implementation of their collective bargaining agreement and
those arising from the interpretation or enforcement of
company personnel policies.". [Caltex Refinery Employees
Association v. Brilliantes (1997)]

Contract Duration And Renewals

Art. 253-A refers to CBAs entered into by the parties as a

result of their mutual agreement. The CBA in this case, on the other
hand, is part of an arbitral award. As such, it may be made
retroactive to the date of expiration of the previous agreement.
Therefore, in the absence of a specific provision of law prohibiting
retroactivity of the effectivity of arbitral awards issued by the
Secretary of Labor pursuant to Article 263(g) of the Labor Code,
such as herein involved, public respondent is deemed vested with
plenary and discretionary powers to determine the effectivity
thereof. [Manila Central Line Corp. v. Manila Central Line Free
Workers Union (1998)]
CBA and 3rd Party Applicability Rule
Labor contracts such as employment contracts and CBAs are
not enforceable against a transferee of an enterprise, labor
contracts being in personam, thus binding only between the parties.
[Sundowner Devt. Corp. v Drilon (1989)]
Indeed, an innocent transferee of a business establishment
has no liability to the employees of the transferor to continue
employing them. Nor is the transferee liable for past unfair labor
practices of the previous owner, except, when the liability therefor
is assumed by the new employer under the contract of sale, or
when liability arises because of the new owner's participation in
thwarting or defeating the rights of the employees. The most that
the transferee may do, for reasons of public policy and social
justice, is to give preference to the qualified separated employees
in the filling of vacancies in the facilities of the purchaser.
[Manlimos v. NLRC (1995)]
Disaffiliation: Doctrine of Substitution
Where there occurs a shift in employees union allegiance
after the execution of a collective bargaining contract with their
employer, the employees can change their agent the labor union,
but the CBA continues to exist. [Benguet Consolidated, Inc. v BCI
Employees and Workers UnionPAFLU (1968)]
WON the terms of an existing CBA particularly as to the economic
provisions, can be extended beyond the three year period
prescribed by law in the absence of a new agreement?

Art. 253-A Terms of a collective bargaining agreement.

Art. 253-A serves as the guide in determining when the CBA at
bar is to take effect. It provides that the representation aspect of
the CBA is to be for a term of 5 years, while . . . [A]ll other
provisions of the Collective Bargaining Agreement shall be renegotiated not later than 3 years after its execution. Any agreement
on such other provision of the Collective Bargaining Agreement
entered into within 6 months from the date of expiry of the term of
such other provisions as fixed in such Collective Bargaining
Agreement shall retroact to the day immediately following such
date. If such agreement is entered into beyond 6 months, the
parties shall agree on the duration of the effectivity thereof. . . . .
- Under these terms, it is clear that the 5- year term requirement is
specific to the representation aspect. What the law additionally
requires is that a CBA must be re-negotiated within 3 years "after its
execution." It is in this re-negotiation that gives rise to the present
CBA deadlock.
- If no agreement is reached within 6 months from the expiry date
of the 3 years that follow the CBA execution, the law expressly gives
the parties not anybody else the discretion to fix the
effectivity of the agreement.
- Significantly, the law does not specifically cover the situation
where 6 months have elapsed but no agreement has been reached
with respect to effectivity. In this eventuality, we hold that any
provision of law should then apply for the law abhors a vacuum.
- One such provision is the principle of hold over, i.e., that in the
absence of a new CBA, the parties must maintain the status quo and
must continue in full force and effect the terms and conditions of

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the existing agreement until a new agreement is reached. In this

manner, the law prevents the existence of a gap in the relationship
between the collective bargaining parties. Another legal principle
that should apply is that in the absence of an agreement between
the parties, then, an arbitrated CBA takes on the nature of any
judicial or quasi-judicial award; it operates and may be executed
only respectively unless there are legal justifications for its
retroactive application. [Manila Electric Co. V. Quisumbing (1999)]

YES. Until a new CBA has been executed by and between the
parties, they are duty bound to keep the status quo and to continue
in full force and effect the terms and conditions of the existing
agreements. The law does not provide for an exception nor
qualification as to which of the economic provisions of the existing
agreements are to retain force and effect, therefore it encompasses
all provisions. The New CBA is given PROSPECTIVE effect generally
since 253 and 253-A provides for an automatic renewal clause in
existing CBAs.
PURPOSE: To avoid creating a gap during which no
agreement would govern. Better for industrial peace if
effectivity of the CBA is longer.
[New Pacific Timber and Supply Co. Inc v. NLRC (2000)]

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LABOR LAW II

LABOR RELATIONS

Part VII
UNFAIR LABOR PRACTICE

4. ESTOPPEL
Standard Chartered Bank Union v. Confesor (2004)
The eventual signing of the CBA does not operate to estop the
parties from raising unfair labor practice charges against each other

8.01 INTRODUCTORY CONCEPTS

1. DEFINITION AND GENERAL CONCEPT

5. INTER-RELATIONS OF ACTS OF ULP

Art. 212 (k), LC

Art. 248
Unfair labor practices of employers. It shall be
unlawful for an employer to commit any of the
following unfair labor practice:

Unfair labor practice - means any unfair labor

practice as expressly defined by the Code.

a. To interfere with, restrain or coerce employees

in the exercise of their right to selforganization;

Art. 247, LC

Unfair labor practices violate the constitutional

right of workers and employees to selforganization

These are inimical to the legitimate interests of

both labor and management, including their
right to bargain collectively and otherwise deal
with each other in an atmosphere of freedom
and mutual respect, disrupt industrial peace and
hinder the promotion of healthy and stable
labor-management relations.

Art. 249
Unfair labor practices of labor organizations. It
shall be unfair labor practice for a labor
organization, its officers, agents or representatives:
a.

Unfair Labor Practices are not only violations of

the civil rights of both labor and management
but are also criminal offenses

To restrain or coerce employees in the

exercise of their right to self-organization.
However, a labor organization shall have
the right to prescribe its own rules with
respect to the acquisition or retention of
membership;

Note the difference between the wordings of Art. 248(a) and Art.
249(a).
Art. 248 (a) interfere, restraint, coerce

PURPOSE OF THE RULE ON UNFAIR LABOR PRACTICE: protection of

right to self-organization and/or collective bargaining

The employee is not only protected from the employer

but also from labor organization

Employer is also protected from ULP committed by a

labor organization

The public is also protected because it has an interest in

continuing industrial peace

Philcom Employees Union v. Phil. Global (2006)

Unfair labor practice refers to acts that violate the workers right
to organize. The prohibited acts are related to the workers right to
self-organization and to the observance of a CBA. Without that
element, the acts, no matter how unfair, are not unfair labor
practices. The only exception is Art. 248 (f) [i.e. to dismiss, discharge
or otherwise prejudice or discriminate against an employee for
having given or being about to give testimony under this Code]
2. REQUISITE RELATIONSHIP
American President Lines v. Clave (1982)
An unfair labor practice may be committed only within the
context of an employer-employee relationship
3. CONSTRUCTION
HSBC Employee Union V. NLRC (1997)
The Labor Code does not undertake the impossible task of
specifying in precise and unmistakable language each incident
which constitutes an unfair labor practice. Rather, it leaves to the
court the work of applying the law's general prohibitory language in
light of infinite combinations of events which may be charged as
violative of its terms.

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Art. 249(a) restraint, coerce

interfere not included in Art. 249 because any act of a

labor organization amounts to interference to a right to
self-organization

Art. 248 (a) and Art. 249(a) are the general grant of protection. All
other cases of ULP enumerated under the said provisions are
derivatives of Art. 248(a) and Art. 249 (a)

8.02 UNFAIR LABOR PRACTICE: EMPLOYER AND LABOR

ORGANIZATION ACTS VIOLATING RIGHT OF SELF-ORGANZATION
ULP AND MANAGEMENT FUNCTIONS
Royal InterOcean Lines v. CIR (1960)
The protection of workers' right to self-organization does not
interfere with employer's freedom to enforce such rules and orders
as are necessary to [the] proper conduct of his business, so long as
employer's supervision is not for the purpose of intimidating or
coercing his employees with respect to their self-organization and
representation.
It is the function of the court to see to it that the rights of selforganization and collective bargaining guaranteed by the Act are
amply secured to the employee, but in its effort to prevent unfair
labor practices, the court must be mindful of the welfare of the
honest employer.
Despite the employees' right to self-organization, the
employer therefore still retains his inherent right to discipline his
employees, his normal prerogative to hire or dismiss them. The
prohibition is directed only against the use of the right to employ or
discharge as an instrument of discrimination, interference or
oppression because of one's labor or union activities.

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LABOR RELATIONS

Great Pacific Life Employees Union v. Great Pacific Life Assurance

Corp. (1999)
While an act or decision of an employer may be unfair,
certainly not every unfair act or decision constitutes unfair labor
practice (ULP) as defined and enumerated under Art. 248 of the
Labor Code.
All the prohibited acts constituting unfair labor practice in
essence relate to the workers' right to self-organization. Thus, an
employer may be held liable under this provision if his conduct
affects in whatever manner the right of an employee to selforganize. The decision of employer [GREPALIFE] to consider the top
officers of union as unfit for reinstatement is not essentially
discriminatory and constitutive of an unlawful labor practice of
employers under the above-cited provision. Discriminating in the
context of the Code involves either encouraging membership in any
labor organization or is made on account of the employee's having
given or being about to give testimony under the Labor Code.

Art. 248 (a), LC

It shall be unlawful for an employer to commit any of
the following unfair labor practice:

b.

he is not a

a promise by the employee that he will not join a union

c.
a promise by the employee that upon joining a labor
organization, he will quit his employment
3. CONTRACTING OUT TO DISCOURAGE UNIONISM
Art. 248 (c), LC

The act of an employer in having certain services or functions

being performed by union members contracted out is NOT per se an
unfair labor practice act. It is only when the contracting out of the
services or functions being performed by union members will
interfere with, restrain or coerce employees in the exercise of their
right to self-organization that it shall be unlawful and shall
constitute ULP act. [Sec. 6 (f) DOLE Department Order No. 18-02,
Series of 2002]

To interfere with, restrain or coerce employees

in the exercise of their right to self-organization;

Art. 255, LC
The labor organization designated or selected by
the majority of the employees in an appropriate
collective bargaining unit shall be the exclusive
representative of the employees in such unit for the
purpose of collective bargaining.
However, an individual employee or group of
employees shall have the right at any time to present
grievances to their employer.
Any provision of law to the contrary
notwithstanding, workers shall have the right, subject
to such rules and regulations as the Secretary of Labor
and Employment may promulgate, to participate in
policy and decision-making processes of the
establishment where they are employed insofar as
said processes will directly affect their rights, benefits
and welfare. For this purpose, workers and employers
may form labor-management councils: Provided, That
the representatives of the workers in such labor
management councils shall be elected by at least the
majority of all employees in said establishment.

4. COMPANY DOMINATION UNION

Art. 248 (d)
To initiate, dominate, assist or otherwise interfere
with the formation or administration of any labor
organization, including the giving of financial or
other support to it or its organizers or supporters;
5. DISCRIMINATION ENCOURAGE/DISCOURAGE UNIONISM
Art. 248 (e), LC
GENERAL RULE: It shall be unlawful To discriminate in regard to
wages, hours of work and other terms and conditions of
employment in order to encourage or discourage membership in
any labor organization.
EXCEPTION: 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
EXCEPTION TO THE EXCEPTION: Those employees who are already
members of another union at the time of the signing of the
collective bargaining agreement.

Art. 277 (g), LC

The Department shall help promote and gradually
develop, with the agreement of labor organizations
and employers, labor-management cooperation
programs at appropriate levels of the enterprise
based on the shared responsibility and mutual respect
in order to ensure industrial peace and improvement
in productivity, working conditions and the quality of
working life.

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;

2. NON-UNION MEMBERSHIP OR WITHDRAWAL

MEMBERSHIP AS CONDITION EMPLOYMENT

FROM

Art. 248 (b), LC

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;

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a.
a representation by the employee that
member of a labor organization

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;

1. INTERFERENCE, RESTRAINT AND COERCION

a.

This particular provision signifies what is known as a yellow dog

contract.
A typical yellow dog contract embodies the following stipulations:

CLOSED-SHOP may be defined as an enterprise in which, by

agreement between the employer and his employees or their
representatives, no person may be employed in any or certain
agreed departments of the enterprise unless he or she is,
becomes, and for the duration of the agreement, remains a
member in good standing of a union entirely comprised of or of
which the employees in interest are part of. [Del Monte v.
Saldivar (2007)]

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UNION SECURITY CLAUSE is a stipulation in the CBA whereby the

management recognizes that the membership of employees in
the union which negotiated the said agreement should be
maintained and continued as a condition for employment or
retention of employment. Its purpose is to safeguard and
ensure the continued existence of the union.
Different kinds of Union Security Clause
a.
Closed shop agreement
b. Union shop agreement
c.
Agency shop agreement
d. Maintenance of membership agreement
e.
Check off
f. Modified closed shop agreement
g. Modified union shop agreement
h. Open shop agreement

An employer is not denied the privilege of interrogating its

employees as to their union affiliation, provided the same is for a
legitimate purpose and assurance is given by the employer that no
reprisals would be taken against unionists. Nonetheless, any
employer who engages in interrogation does so with notice that he
risks a finding of unfair labor practice if the circumstances are such
that his interrogation restrains or interferes with employees in the
exercise of their rights to self-organization.
When the interrogation and investigation by the companys
supervisory officials of the employees in such a way that it hampers
the exercise of their right to self-organization, ULP is committed.
The subjection by the company of union to vilification and its
participation in soliciting membership for a competing union is also
ULP act.
Speech

Del Monte v. Saldivar (2007)

Under the Labor Code, a dismissal may only be effected for any
just or authorized causes as provided by the said law. A dismissal
based on a union security clause of company CBA is not
enumerated as one of the just or authorized causes in the Labor
Code. But jurisprudence recognized that it is a State policy to
promote unionism to enable workers to negotiate with
management on an even level playing field and with more
persuasiveness than if they were individually and separately bargain
with the employer. For this reason, the law has allowed
stipulations for union shop and closed shop as a means of
encouraging workers to join ands support the union of their choice
in the protection of their rights and interests vis--vis the employer.
Even though the law recognizes union shop agreement as valid,
yet it cannot be used as a means to guarantee to the union an
unmitigated discretion in terminating the employment status on an
employee-member. Therefore, the requirements laid down by the
law in determining whether or not an employee was validly
terminated must still be followed even if it is based on a closedshop provision of a CBA, i.e. the substantive as well as the
procedural due process requirements.

Insular Life Assurance Co. Employees Assn. v. Insular Life

Assurance Co. Ltd (1971)
Indeed, it is an unfair labor practice for an employer operating
under a collective bargaining agreement to negotiate or to attempt
to negotiate with his employees individually in connection with
changes in the agreement. 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. This is
tantamount to an illegal act of interference.
The sending of letter containing promises of benefits to the
individual employees in order to entice them to return to work is
not protected by the free speech provision of the Constitution. The
same is true with letters containing threats to obtain replacements
for the striking employees in the event they do not report to work
on a certain date. The free speech protection under the
Constitution is inapplicable where the expression of opinion by the
employer or his agent contains promise of benefits, threats or
reprisals.
Espionage
Insular Life Assurance Co. Employees Assn. v. Insular Life
Assurance Co. Ltd (1971)
As regard to espionage, it is said that picketing is inherently
explosive. As pointed out by one author, The picket line is an
explosive front, charged with the emotions and fierce loyalties of
the union-management dispute. It is marked by colorful namecalling, intimidating threats or sporadic fights between the pickets
and those who pass the line.
It has been held in a great number of decisions that espionage by
the employer of union activities, or surveillance thereof, are such
instances of interference, restraint or coercion of employees in
connection with their right to organize, form and join unions as to
constitute unfair labor practice. Nothing is more calculated to
interfere with, restrain or coerce employees in the exercise of their
right to self-organization than such activity even where no
discharge results. The information obtained by means of espionage
is invaluable to the employer and can be used in a variety of cases
to break a union. The unfair labor practice is committed whether
espionage is carried on by a professional labor spy or detective, by
officials or supervisory employees of the employer, or by fellow
employees acting at the request or direction of the employer or an
ex-employee

6. RETALIATION TESTIMONY AGAINST EMPLOYER

Art. 248 (f), LC
To dismiss, discharge or otherwise prejudice or
discriminate against an employee for having given or
being about to give testimony under this Code;

7. EXACTION- FEATHERBEDDING

Art. 249 (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;

Economic Coercion And Inducement

NATURE OF ACT
Interrogation
Scotys Dept. Store v. Micaller (1956)
Questioning of employees concerning union membership and
activities and disparaging remarks by supervisory employees made
in such away as to hamper the exercise of free choice on the part of
the employees, have been uniformly condemned as an unfair labor
practice.

Insular Life Assurance Co. Employees Assn. v. Insular Life

Assurance Co. Ltd (1971)
Indeed, when the respondents offered reinstatement and
attempted to "bribe" the strikers with "comfortable cots," "free
coffee and occasional movies," "overtime" pay for "work performed
in excess of eight hours," and "arrangements" for their families, so
they would abandon the strike and return to work, they were guilty
of strike-breaking and/or union-busting and, consequently, of unfair
labor practice.
It is equivalent to an attempt to break a strike for an employer
to offer reinstatement to striking employees individually, when they
are represented by a union, since the employees thus offered

Phil. Steam Navigation Co. v. Phil. Marine Officers Guild (1965)

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reinstatement are unable to determine what the consequences of

returning to work would be.
Likewise violative of the right to organize, form and join labor
organizations are the following acts:

the offer of a Christmas bonus to all "loyal" employees of

a company shortly after the making of a request by the
union to bargain; wage increases given for the purpose of
mollifying employees after the employer has refused to
bargain with the union, or for the purpose of inducing
striking employees to return to work; the employer's
promises of benefits in return for the strikers'
abandonment of their strike in support of their union;
and the employer's statement, made about 6 weeks after
the strike started, to a group of strikers in a restaurant to
the effect that if the strikers returned to work, they
would receive new benefits in the form of hospitalization,
accident insurance, profit-sharing, and a new building to
work in.
Union Solicitation And Distribution Of Literature And Materials
Republic Aviation Corp. v. NLRB 324 US 793 (1945)
The Supreme Court held that it was permissible for the Board
to strike the balance in favor of employees challenging an
employer's no-solicitation policy. The Court affirmed the Board's
conclusion that employees have a presumptive right to wear union
insignia, a right that cannot be abridged unless the employer is able
to establish that a special circumstance exists, which justifies
banning such insignia.
Discrimination
Wise and Co. v. Wise and Co. Employees Union-NATU (1989)
The grant of profit-sharing benefits to managers,
supervisors and all rank-and-file employees not covered by the CBA
is not discriminatory but a valid exercise of management
prerogative.

Art. 250
Procedure in collective bargaining. The following
procedures shall be observed in collective bargaining:
a. When a party desires to negotiate an agreement, it
shall serve a written notice upon the other party
with a statement of its proposals. The other party
shall make a reply thereto not later than ten (10)
calendar days from receipt of such notice;
b. Should differences arise on the basis of such notice
and reply, either party may request for a conference
which shall begin not later than ten (10) calendar
days from the date of request.
c. If the dispute is not settled, the Board shall intervene
upon request of either or both parties or at its own
initiative and immediately call the parties to
conciliation meetings. The Board shall have the
power to issue subpoenas requiring the attendance
of the parties to such meetings. It shall be the duty
of the parties to participate fully and promptly in the
conciliation meetings the Board may call;
d. During the conciliation proceedings in the Board, the
parties are prohibited from doing any act which may
disrupt or impede the early settlement of the
disputes; and
e. The Board shall exert all efforts to settle disputes
amicably and encourage the parties to submit their
case to a voluntary arbitrator.

Art. 251
Duty to bargain collectively in the absence of collective
bargaining agreements.

In the absence of an agreement or other voluntary

arrangement providing for a more expeditious
manner of collective bargaining, it shall be the duty
of employer and the representatives of the
employees to bargain collectively in accordance with
the provisions of this Code.

Run-Away Shop
Complex Electronics Employees Association v. NLRC (1999)
A RUNAWAY SHOP is defined as an industrial plant moved by
its owners from one location to another to escape union labor
regulations or state laws, but the term is also used to describe a
plant removed to a new location in order to discriminate against
employees at the old plant because of their union activities. It is
one wherein the employer moves its business to another location or
it temporarily closes its business for anti-union purposes. A
runaway shop in this sense, is a relocation motivated by antiunion animus rather than for business reasons.
8.03 UNFAIR LABOR PRACTICE; EMPLOYER AND LABOR
ORGANIZATION ACTS VIOLATIVE OF RIGHT TO COLLECTIVE
BARGAINING
1. VIOLATE DUTY TO BARGAIN
To employers

Art. 248 (f)

To violate the duty to bargain collectively as prescribed
by this Code;
To labor organizations

Art. 249 (c)

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

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Art. 252
Meaning of duty to bargain collectively.

The duty to bargain collectively means the

performance of a mutual obligation
o
to meet and convene promptly and
expeditiously in good faith for the purpose of
negotiating an agreement with respect
o
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.

Art. 253
Duty to bargain collectively when there exists a collective
bargaining agreement.

When there is a collective bargaining agreement,

o
the duty to bargain collectively shall also mean
that neither party shall terminate nor modify
such agreement during its lifetime.
o
However, either party can serve a written
notice to terminate or modify the agreement
at least sixty (60) days prior to its expiration
date.
o
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.

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General Milling Corp. v. Court of Appeals (2004)

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.
We hold that GMCs refusal to make a counter-proposal to the
unions proposal for CBA negotiation is an indication of its bad faith.
Where the employer did not even bother to submit an answer to
the bargaining proposals of the union, there is a clear evasion of the
duty to bargain collectively.
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 unfair labor practice. Perforce, the
Court of Appeals did not commit grave abuse of discretion
amounting to lack or excess of jurisdiction in finding that GMC is,
under the circumstances, guilty of unfair labor practice.
Colegio de San Juan de Letran v. Association (2000)
The school is guilty of unfair labor practice when it failed to make
a timely reply to the proposals of the union more than one month
after the same were submitted by the union. In explaining its failure
to reply, the school merely offered a feeble excuse that its Board of
Trustees had not yet convened to discuss the matter. Clearly, its
actuation showed a lack of sincere desire to negotiate.
2. NEGOTIATION OR ATTORNEYS FEES
Art. 248 (f), LC
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; or

3. VIOLATE COLLECTIVE BARGAINING AGREEMENT

Art. 248
To violate the duty to bargain collectively as prescribed
by this Code;

Art. 249 (f), LC

To violate a collective bargaining agreement
Art. 261
Jurisdiction of Voluntary Arbitrators or panel of
Voluntary Arbitrators.

x x x. Accordingly, violations of a Collective

Bargaining Agreement, except those which are
gross in character, shall no longer be treated as
unfair labor practice and shall be resolved as
grievances under the Collective Bargaining
Agreement.

For purposes of this article, gross violations of

Collective Bargaining Agreement shall mean
flagrant and/or malicious refusal to comply with the
economic provisions of such agreement. x x x

Singapore Airlines Employees Association v. NLRC (1984)

An error in the interpretation of a provision of the CBA, absent
any malice or bad faith, is not an unfair labor practice. Honest
differences in construction may arise in the actual application of
contractual provisions.
PAL V. NLRC (1997)
Violations of collective bargaining agreements were no longer
deemed unfair labor practices - except those gross in character i. e.
flagrant and malicious refusal to comply with the economic
provisions thereof - and were considered mere grievances
resolvable through the appropriate grievance machinery, or
voluntary arbitration provided in the CBA.

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8.04 EMPLOYER FUNCTIONS AND ULP

San Miguel Corp. Employees Union v. Bersamira (1990)

A "labor dispute" as defined in Article 212 (1) of the Labor
Code includes "any controversy or matter concerning terms and
conditions of employment or the association or representation of
persons in negotiating, fixing, maintaining, changing, or arranging
the terms and conditions of employment, regardless of whether the
disputants stand in the proximate relation of employer and
employee."
While it is SanMig's submission that no employer-employee
relationship exists between itself, on the one hand, and the
contractual workers of Lipercon and D'Rite on the other,
o
a labor dispute can nevertheless exist "regardless of
whether the disputants stand in the proximate
relationship of employer and employee" (Article 212 [1],
Labor Code, supra) provided the controversy concerns,
among others, the terms and conditions of employment
or a "change" or "arrangement" thereof (ibid).
o
Put differently, and as defined by law, the existence of a
labor dispute is not negatived by the fact that the
plaintiffs and defendants do not stand in the proximate
relation of employer and employee.
That a labor dispute, as defined by the law, does exist herein is
evident. At bottom, what the Union seeks is to regularize the status
of the employees contracted by Lipercon and D'Rite and, in effect,
that they be absorbed into the working unit of SanMig. This matter
definitely dwells on the working relationship between said
employees vis-a-vis SanMig.
o
Terms, tenure and conditions of their employment and
the arrangement of those terms are thus involved
bringing the matter within the purview of a labor dispute.
o
Further, the Union also seeks to represent those workers,
who have signed up for Union membership, for the
purpose of collective bargaining.
Obvious then is that representation and association, for the
purpose of negotiating the conditions of employment are also
involved. In fact, the injunction sought by SanMig was precisely also
to prevent such representation.
o
Again, the matter of representation falls within the scope
of a labor dispute. Neither can it be denied that the
controversy below is directly connected with the labor
dispute already taken cognizance of by the NCMB-DOLE
(NCMB-NCR-NS-O1-021-89; NCMB NCR NS-01-093-83).
As the case is indisputably linked with a labor dispute,
jurisdiction belongs to the labor tribunals. As explicitly provided for
in Article 217 of the Labor Code, prior to its amendment by R.A. No.
6715 on 21 March 1989, since the suit below was instituted on 6
March 1989,
o
Labor Arbiters have original and exclusive jurisdiction to
hear and decide the following cases involving all workers
including "
1. unfair labor practice cases;
2. those that workers may file involving wages,
hours of work and other terms and conditions of
employment; and
3. cases arising from any violation of Article 265 of
this Code, including questions involving the legality
of striker and lockouts.
The claim of SanMig that the action below is for damages
under Articles 19, 20 and 21 of the Civil Code would not suffice to
keep the case within the jurisdictional boundaries of regular Courts.
o
That claim for damages is interwoven with a labor
dispute existing between the parties and would have to
be ventilated before the administrative machinery
established for the expeditious settlement of those
disputes.
o
To allow the action filed below to prosper would bring
about "split jurisdiction" which is obnoxious to the
orderly administration of justice
We recognize the proprietary right of SanMig to exercise an
inherent management prerogative and its best business judgment
to determine whether it should contract out the performance of
some of its work to independent contractors,

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However, the rights of all workers to self-organization,

collective bargaining and negotiations, and peaceful
concerted activities, including the right to strike in
accordance with law (Section 3, Article XIII, 1987
Constitution) equally call for recognition and protection.
Those contending interests must be placed in proper
perspective and equilibrium.

Republic Savings Bank v. CIR (1967)

It is for the Court of Industrial Relations, in the first instance,
to make the determination, "to weigh the employer's expressed
motive in determining the effect on the employees of
management's otherwise equivocal act" (NLRB vs. Stowe Spinning
Co., 336 U.S. 226).
For the Industrial Peace Act does not undertake the impossible
task of specifying in precise and unmistakable language each
incident which constitutes an unfair labor practice, rather, it leaves
to the court the work of applying the Act's general prohibitory
language in the light of infinite combinations of events which may
be charged as violative of its terms

Interference constituting unfair labor practice will not cease to

be such simply because it was susceptible of being thwarted or
resisted, or that it did not proximately cause the result intended.
For success of purpose is not, and should not, be the criterion
in determining whether or not a prohibited act constitutes unfair
labor practice.
"The test of whether an employer has interfered with and
coerced employees within the meaning of subsection (a) (1) is
o
whether the employer has engaged in conduct which it
may reasonably be said tends to interfere with the free
exercise of employees' rights under section 3 of the Act,
o
and it is not necessary that there be direct evidence that
any employee was in fact intimidated or coerced by
statements of threats of the employer if there is a
reasonable inference that anti-union conduct of the
employer does have an adverse effect on selforganization and collective bargaining." (Francisco, Labor
Laws 1956, Vol. II, p. 323, citing NLRB v. Ford, C.A., 1948,
170 F2d 735).
8.06 ENFORCEMENT, REMEDIES AND SANCTIONS

8.05 MOTIVE, CONDUCT AND PROOF

1. PARTIES AGAINST WHOM ULP COMMITTED

1. EMPLOYER MOTIVE AND PROOF

Visayan Bicycle Manuf. Co. v. National Labor Union (1965)
The act of the employer in provoking the union officers into a
fight by two recently hired employees pursuant to a strategy of the
company designed to provide an apparently lawful cause for their
dismissal, and said dismissed employees have not figured in similar
incidents before or violated company rules in their several years
with the company are deemed as an unfair labor practice.
Me-Shurn Corp. v. Me-Shurn Workers Union (2005)
To justify the closure of a business and the termination of the
services of the concerned employees, the law requires that the
employer prove that it suffered substantial actual losses. The
cessation of the companys operations shortly after the
organization of a labor union as well as the resumption of business
barely a month after, gives credence to the employees claim that
the closure was meant to discourage union membership and to
interfere in union activities. These acts constitute unfair labor
practices. The reason invoked by petitioners to justify the cessation
of corporate operations was alleged business losses which they,
however, failed to substantiate by any credible evidence.
St. John Colleges Inc. v. St. John Academy Faculty and Employees
Union (2006)
Under the circumstances, it is not difficult to discern that the
closure was done to defeat the parties agreement to refer the
labor dispute to the Secretary of Labor; to unilaterally end the
bargaining deadlock; to render nugatory any decision of the
Secretary of Labor; and to circumvent the Unions right to collective
bargaining and its members right to security of tenure. By
admitting that the closure was due to irreconcilable differences
between the Union and school management, specifically, the
financial aspect of the ongoing CBA negotiations, SJCI in effect
admitted that it wanted to end the bargaining deadlock and
eliminate the problem of dealing with the demands of the Union.
This is precisely what the Labor Code abhors and punishes as unfair
labor practice since the net effect is to defeat the Unions right to
collective bargaining.
2. TOTALITY OF CONDUCT RULE AND EFFECT OF FAILURE OF ACT
TOTALITY OF CONDUCT DOCTRINE
It means that expressions of opinion by an employer
though innocent in themselves, may be held to be constitutive of
unfair labor practice because of the circumstances under which
they were uttered, the history of the particular employers labor
relations or anti-union bias or because of their connection with an
established collateral plan of coercion or interference. [Insular Life
Assurance Co. Employees Assn. v. Insular Life (1971)]
Effect of Failure of the Act

Art. 212, LC
(e) "Employer" includes any person acting in the
interest of an employer, directly or indirectly. The
term shall not include any labor organization or any
of its officers or agents except when acting as
employer.
(f) "Employee" includes any person in the employ of
an employer. The term shall not be limited to the
employees of a particular employer, unless the
Code so explicitly states. It shall include any
individual whose work has ceased as a result of or
in connection with any current labor dispute or
because of any unfair labor practice if he has not
obtained any other substantially equivalent and
regular employment.
(g) "Labor organization" means any union or
association of employees which exists in whole or in
part for the purpose of collective bargaining or of
dealing with employers concerning terms and
conditions of employment.

2. PARTIES LIABLE FOR ACTS

EMPLOYER
Art. 248
The provisions of the preceding paragraph
notwithstanding, only the officers and agents of
corporations, associations or partnerships who have
actually participated in, authorized or ratified unfair
labor practices shall be held criminally liable.

LABOR ORGANIZATION
Art. 249
The provisions of the preceding paragraph
notwithstanding, only the officers, members of
governing boards, representatives or agents or members
of labor associations or organizations who have actually
participated in, authorized or ratified unfair labor
practices shall be held criminally liable.

3. PROSECUTION AND PRESCRIPTIVE PERIOD

CIVIL ASPECT
Art. 247, LC

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Concept of unfair labor practice and procedure for

prosecution

xxx

Consequently, unfair labor practices are not only

violations of the civil rights of both labor and
management but are also criminal offenses against
the State which shall be subject to prosecution and
punishment as herein provided.

Subject to the exercise by the President or by the

Secretary of Labor and Employment of the powers
vested in them by Articles 263 and 264 of this Code,
o
the civil aspects of all cases involving
unfair labor practices, which may
include claims for actual, moral,
exemplary and other forms of
damages, attorneys fees and other
affirmative relief,
shall be under the jurisdiction of the
Labor Arbiters.
o
The Labor Arbiters shall give utmost
priority to the hearing and resolution
of all cases involving unfair labor
practices.
They shall resolve such cases within
thirty (30) calendar days from the
time they are submitted for
decision.

Recovery of civil liability in the administrative

proceedings shall bar recovery under the Civil Code.

CRIMINAL ASPECT
Art. 247
Concept of unfair labor practice and procedure for
prosecution

xxx

No criminal prosecution under this Title may be

instituted without a final judgment finding that an
unfair labor practice was committed, having been
first obtained in the preceding paragraph.
o
During the pendency of such
administrative proceeding, the running
of the period of prescription of the
criminal offense herein penalized shall
be considered interrupted:
o
Provided, however, that the final
judgment in the administrative
proceedings shall not be binding in the
criminal case nor be considered as
evidence of guilt but merely as proof
of compliance of the requirements
therein set forth.

Gochangco Workers Union v. NLRC (1988)

Before Batas Blg. 7029 was enacted into law, unfair labor
practices were considered administrative offenses, and have been
held akin to tort, wherein damages are payable.
We therefore not only order herein the reinstatement of the
petitioner and the payment of backwages (including cost-of-living
allowances) to them, but impose as well moral and exemplary
damages.
With respect to backwages, we hold the respondent E.G.
Gochangco, Inc. liable, in line with the recommendation of the
Solicitor General and in accordance with accepted practice, for
backwages equivalent to 3 years without qualification or deduction.
4. COMPROMISE
Gochangco Workers Union v. NLRC (1988)
Unfair labor practices are not subject to compromises in any
event in view of the public interest involved therein.

In labor jurisprudence, it is well-established that quitclaims

and/or complete releases executed by the employees do not estop
them from pursuing their claims arising from the unfair labor
practice of the employer. The basic reason for this is that such
quitclaims and/or complete releases are against public policy and,
therefore, null and void.
The acceptance of termination pay does not divest a laborer of
the right to prosecute his employer for unfair labor practice acts.
Reformist Union of R.B. Liner, Inc. v. NLRC (1997)
The agreement entered into by the company and the union,
was in the nature of a compromise agreement, i.e., "an agreement
between two or more persons, who, for preventing or putting an
end to a lawsuit, adjust their difficulties by mutual consent in the
manner which they agree on, and which everyone of them prefers
to the hope of gaining, balanced by the danger of losing."
Thus, in the agreement, each party made concessions in favor
of the other to avoid a protracted litigation.
While we do not abandon the rule that "unfair labor practice
acts are beyond and outside the sphere of compromises," the
agreement herein was voluntarily entered into and represents a
reasonable settlement, thus it binds the parties.
On this score, the Labor Code bestows finality to unvitiated
compromise agreements. The private respondents' cause likewise
fails in light of Article 2037 of the Civil Code, which gives
compromise agreements "the effect and authority of res judicata"
upon the parties to the same, even when effected without judicial
approval.
The Labor Arbiter and the NLRC therefore erroneously
reviewed an issue which had already been laid to rest by the parties
themselves and which, applying the principle of res judicata, they
could no longer relitigate.
DISINI: Did the Reformist case abandon the doctrine laid down by
the court in Gochanco and AFP Mutual Benefit Association? Note
that the Reformist case involved a compulsory arbitration.
Implication: One may argue that it is only applicable to a case
where the issue on ULP was to be resolved in a compulsory
arbitration and the parties entered into a compromise agreement.
5. REMEDIES AND SANCTIONS
CIVIL REMEDIES
Art. 247
Concept of unfair labor practice and procedure for
prosecution

xxx

Recovery of civil liability in the administrative

proceedings shall bar recovery under the Civil Code.

xx
Nueva Ecija I. Electric Coop. Inc. v. NLRC (2000)
Unfair labor practices violate the constitutional rights of
workers and employees to self-organization, are inimical to the
legitimate interests of both labor and management, including their
right to bargain collectively and otherwise deal with each other in
an atmosphere of freedom and mutual respect; and disrupt
industrial peace and hinder the promotion of healthy and stable
labor-management relations.
For this reason, we find it proper in this case to impose moral
and exemplary damages on private respondent.
PENAL REMEDIES
Art. 247
Concept of unfair labor practice and procedure for prosecution

xxx

Recovery of civil liability in the administrative proceedings

shall bar recovery under the Civil Code.
No criminal prosecution under this Title may be instituted without a
final judgment finding that an unfair labor practice was committed,
having been first obtained in the preceding paragraph.

AFP Mutual Benefit Association Inc. v. FP MBAI-EU (1980)

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Part VIII
CONCERTED ACTIVITIES

6. LIMITATIONS

9.01 BASIS OF RIGHT TO ENGAGE IN CONCERTED ACTIVITIES

3. CONSTITUTION
Art. XIII. Section 3
It shall guarantee the rights of all workers to self- organization,
collective bargaining and negotiations,
and peaceful concerted activities,
- including the RIGHT TO STRIKE
- in accordance with law.

A strike be declared only after the most thoughtful

consultation, conducted in the only way allowed, that is,
peacefully, and in every case conformably to reasonable
regulation.
Any violation of the legal requirements and strictures, such as
a defiance to a return-to-work order in industries affected with
public interest, will render the strike illegal to the detriment of
the very workers it is supposed to protect.
(BLT Bus Company v. NLRC, 1992)

9.02 STRIKE ACTIVITY

PURPOSE AND MEANS TEST

4.

Purpose: For purpose of enforcing right to:

1. Self-Organization (Strikes against ULP) and
2. Collective bargaining and negotiations
(economic strikes based on bargaining
deadlock)
Means: Peaceful and in accordance with law

Luzon Marine Dept. Union v. Roldan (1950)

The law does not look with favor upon strikes and lockouts
because of their disturbing and pernicious effects upon the social
order and the public interests; to prevent or avert them and to
implement section 6, Article XIV of the Constitution, the law has
created several agencies, namely: the Bureau of Labor, the
Department of Labor, the Labor-Management Advisory Board, and
the Court of Industrial Relations.
Paragraphs (c) and (f) of Article 263 mandate the following
procedural steps to be followed before a strike may be staged:
1. filing of notice of strike,
2. taking of strike vote, and
3. reporting of the strike vote result to the Department of
Labor and Employment.

these requirements are mandatory, meaning, non-compliance

therewith makes the strike illegal. The evident intention of the
law in requiring the strike notice and strike-vote report is to
reasonably regulate the right to strike, which is essential to the
attainment of legitimate policy objectives embodied in the
law.
(Stamford Marketing Corp v. Julian, 2004)

4. STATUTORY
Art. 263
Strikes, picketing and lockouts.
(b) Workers shall have the right to engage in concerted activities
for purposes of collective bargaining or for their mutual
benefit and protection.
The right of legitimate labor organizations to strike and picket
and of employers to lockout,
consistent with the national interest, shall continue to be
recognized and respected.
However, no labor union may strike and no employer may
declare a lockout
on grounds involving inter-union and intra-union
disputes.
The Constitution and the law set limitation for the exercise of
the right to strike or lock-out. It is the most regulated activity.
Constitution
Labor Code

In accordance with law

Consistent with National Interest

5. INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND

CULTURAL RIGHTS
Article 8
1. The States Parties to the present Covenant undertake to
ensure:
(d) The right to strike, provided that it is exercised in
conformity with the laws of the particular country.

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9. DEFINITION
Art. 212(o)
"Strike" means any temporary stoppage of work by the
concerted action of employees as a result of an industrial or
labor dispute.
Strike - any temporary stoppage of work by the concerted action of
employees as a result of an industrial or labor dispute.
Labor dispute - any controversy or matter concerning terms or
conditions of employment or the association or representation of
persons in negotiating, fixing, maintaining, changing or arranging
the terms and conditions of employment, regardless of whether the
disputants stand in the proximate relation of employer and
employee. (Bukluran ng Manggagawa sa Clothman Knitting
Corporation-Solidarity Unions in the Phil v. CA, 2005)

The term strike shall comprise not only concerted work

stoppages, but also slowdowns, mass leaves, sitdowns,
attempts to damage, destroy or sabotage plant equipment and
facilities, and similar activities.
(Samahang Manggagawa v. Sulpicio Lines, 2004)

Basic Concepts:
1. Initiating Party:
Employer: Lockout
Union: Strike
2. Cause: Labor dispute
An inter-union and intra-union dispute cannot be a valid
ground for a strike or lock-out since a labor dispute is
technically defined under Art. 212.
Welga ng Bayan (Political Strike) is not a valid strike under the
Labor Code since no labor dispute is involved. A welga ng
bayan for purpose of lowering oil price is not a valid strike
under the Labor Code but it may be upheld as a valid exercise
of right of speech. However, the employee may suffer the
consequence of abandonment of work
Wage distortion are not also a valid ground for a strike since
the law provides for a procedure to settle wage distortion
problems (see Ilaw at Buklod case)
3. Temporary in Nature
3. Employee-Employer relationship continues to exist. Mere
participation in a strike is not a ground for termination
10. NATURE AND PURPOSE
A strike is a coercive measure resorted to by laborers to enforce
their demands. The idea behind a strike is that a company engaged
in a profitable business cannot afford to have its production or
activities interrupted, much less, paralyzed.
(Phil. Can Co. v. CIR, 1950)
11. EFFECT ON WORK RELATIONSHIP
Although during a strike the worker renders no work or service and
receives no compensation, yet his relationship as an employee with
his employer is not severed or dissolved. (Elizalde Rope Factory,
Inc. v. SSS, 1972)

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12. TYPES, CHANGES AND CONVERSION

ALLOWABLE STRIKES

TYPES

Art. 263

Unfair Labor Practice

Strikes, picketing and lockouts.

Art. 263
Strikes, picketing and lockouts.
(c) In case of bargaining deadlocks, the duly certified or recognized
bargaining agent may file a notice of strike or the employer may file
a notice of lockout with the Ministry at least 30 day before the
intended date thereof.

In cases of unfair labor practice, the period of notice

shall be 15 days and in the absence of a duly certified
or recognized bargaining agent, the notice of strike
may be filed by any legitimate labor organization in
behalf of its members.
f.
However, in case of dismissal from employment of
union officers duly elected in accordance with the
union constitution and by-laws, which may constitute
union busting, where the existence of the union is
threatened, the 15-day cooling-off period shall not
apply and the union may take action immediately.

Bargaining Deadlock Economic

Consolidated Labor Assoc. of the Phil. V. Marsman and Co. (1984)

economic strike - one which is to forge wage or other concessions
from the employer which he is not required by law to grant.
CHANGE IN TYPE
it is possible to change an economic strike into a ULP
strike
Consolidated Labor Assoc. of the Phil. V. Marsman and Co. (1984)
Initially the strike staged by the Union was meant to compel
the Company to grant it certain economic benefits set forth in its
proposal for collective bargaining. The strike was an economic one,
and the striking employees would have a right to be reinstated if, in
the interim, the employer had not hired other permanent workers
to replace them.
For it is recognized that during the pendency of an economic
strike an employer may take steps to continue and protect his
business by supplying places left vacant by the strikers, and is not
bound to discharge those hired for that purpose upon election of
the strikers to resume their employment.
But the strike changed its character from the time the
Company refused to reinstate complainants because of their union
activities after it had offered to admit all the strikers and in fact did
readmit the others. It was then converted into an unfair labor
practice strike.
The Union began the strike because it believed in good faith
that settlement of their demands was at an impasse and that
further negotiations would only come to naught. It stopped the
strike upon the belief they could go back to work.
3. Then it renewed the strike (or it started a new strike)
as a protest against the discrimination practiced by the
Company.
4. Both are valid grounds for going on a strike.
NON-CONVERSION STRIKE TO LOCKOUT
A strike CANNOT be converted into a pure and simple lockout by
the mere expedient of filing before the trial court a notice of offer
to return to work during the pendency of the labor dispute between
the union and the employer.
(Rizal Cement Workers Union v. CIR, 1962)
13. GROUNDS
Valid grounds for strike:
1) Bargaining Deadlock (BD) (Art. 263)
2) ULP (Art. 263)

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(c) In case of bargaining deadlocks, the duly certified or recognized

bargaining agent may file a notice of strike or the employer may file
a notice of lockout with the Ministry at least 30 day before the
intended date thereof.
3. In cases of unfair labor practice, the period of notice shall
be 15 days and in the absence of a duly certified or
recognized bargaining agent, the notice of strike may be
filed by any legitimate labor organization in behalf of its
members.
4. However, in case of dismissal from employment of union
officers duly elected in accordance with the union
constitution and by-laws, which may constitute union
busting, where the existence of the union is threatened,
the 15-day cooling-off period shall not apply and the
union may take action immediately.
PROHIBITED STRIKES
Art. 263 (g)
When, in his opinion, there exists a labor dispute causing or likely to
cause a strike or lockout in an industry indispensable to the national
interest, the Secretary of Labor and Employment may assume
jurisdiction over the dispute and decide it or certify the same to the
Commission for compulsory arbitration.
Effect of Assumption Order pursuant to Art. 263 (g):
1) Strike/Lockout automatically enjoined
2) Striking/Locked Out employees shall immediately return to work
3) Employer shall resume operations and readmit all workers
In line with the national concern for and the highest respect
accorded to the right of patients to life and health, strikes and
lockouts in hospitals, clinics and similar medical institutions shall,
to every extent possible, be avoided, and all serious efforts, not
only by labor and management but government as well, be
exhausted to substantially minimize, if not prevent, their adverse
effects on such life and health, through the exercise, however
legitimate, by labor of its right to strike and by management to
lockout.

In labor disputes adversely affecting the continued

operation of such hospitals, clinics or medical institutions,
it shall be the duty of the striking union or locking-out
employer to provide and maintain an effective skeletal
workforce of medical and other health personnel, whose
movement and services shall be unhampered and
unrestricted, as are necessary to insure the proper and
adequate protection of the life and health of its patients,
most especially emergency cases, for the duration of the
strike or lockout.

In such cases, therefore, the Secretary of Labor and

Employment may immediately assume, within twenty
four (24) hours from knowledge of the occurrence of
such a strike or lockout, jurisdiction over the same or
certify it to the Commission for compulsory arbitration.

For this purpose, the contending parties are strictly

enjoined to comply with such orders, prohibitions and/or
injunctions as are issued by the Secretary of Labor and
Employment or the Commission, under pain of
immediate disciplinary action, including dismissal or loss
of employment status or payment by the locking-out
employer of backwages, damages and other affirmative
relief, even criminal prosecution against either or both of
them.
The foregoing notwithstanding, the President of the Philippines
shall not be precluded from determining the industries that, in his
opinion, are indispensable to the national interest, and from
intervening at any time and assuming jurisdiction over any such
labor dispute in order to settle or terminate the same.

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3.

No strike or lockout shall be declared after assumption of

jurisdiction by the President or the Minister or after certification or
submission of the dispute to compulsory or voluntary arbitration or
during the pendency of cases involving the same grounds for the
strike or lockout. (Art. 264)

WAGE DISTORTION cannot be a ground for strike.

A SLOWDOWN or a strike on an installment plan is prohibited.
It is a willful reduction in the rate of work by the
concerted action of the employees for the purpose of restricting the
output of the employer, in relation to a labor dispute. It is an
activity by which workers, without a complete stoppage of work,
retard production or their performance of duties and functions to
compel management to grant their demands.
Such act is inherently illicit and unjustifiable because
while the employees continue to work, they, at the same time,
select what part of their duties they perform. In essence, they work
on their own terms. (Ilaw at Buklod ng Manggagawa (IBM) v.
NLRC, 1991)

A strike that is undertaken, despite the issuance by the SOLE of

an assumption or certification order, becomes a prohibited
activity and, thus, illegal pursuant to Article 264 of the Labor
Code of the Philippines, as amended. As this Court ruled in
Union of Filipro Employees v. Nestle Philippines, Inc., under
Article 264(a) of the said code, once an assumption
certification order is issued by the SOLE, strikes are enjoined or
if one has already taken place, all strikers shall immediately
return to work. (GRAND BOULEVARD HOTEL V. GRAND LABOR
ORGANIZATION, 2003)

NO STRIKE CLAUSE
applicable only to economic strikes, not ULP strikes
A "no strike, no lock-out" provision in the Collective Bargaining
Agreement ("CBA") is a valid stipulation although the clause may be
invoked by an employer only when the strike is economic in nature
or one which is conducted to force wage or other concessions from
the employer that are not mandated to be granted by the law itself.
It would be inapplicable to prevent a strike which is grounded on
unfair labor practice.
(Panay Electric Co. v. NLRC, 1995; Malayang Samahan ng mga
Manggagawa sa Greenfield v. Ramos, 2000)

14.

a.

15. PROCEDURAL REQUIREMENTS

Requisites of a valid strike/lockout:
1) Good faith bargaining has been conducted in accordance with
Art. 250 (Art. 264, a)
2) The following procedural requisites are met: (Art. 263; c, f)
a. Notice of Strike/Lockout 0 (Union Busting) or 15 (ULP) or 30
(BD) days cooling-off period; filed with DOLE
b. Strike/Lockout Vote approved by a majority of union
members/board of directors or partners through secret ballot in a
meeting called for the purpose
c. Notice of Result of Strike/Lockout Vote filed with DOLE at least
7 days before the intended date of strike
3) Must be based on valid grounds
4) The strike or lockout must be pursued within the bounds of the
law (Art. 264)
Also, take note of the following:
5) Statutory prohibition as to striking workers (i.e. Government
employees can organize but cannot strike)
6) If an injunction is subsequently ordered, strike/lockout must
cease
7) No-Strike Clause in CBA affects only economic strikes, not
strikes based on ULP
Duty of DOLE during cooling-off period: to exert all efforts at
mediation and conciliation to effect a voluntary settlement. Should
the dispute remain unsettled until the lapse of the requisite number
of days from the mandatory filing of the notice, the labor union may
strike or the employer may declare a lockout.
Piero v. NLRC (2004)
Under Art. 263, the requisites for a valid strike are as follows:
3. a notice of strike filed with the DOLE thirty days before
the intended date thereof or fifteen days in case of unfair
labor practice
4. strike vote approved by a majority of the total union
membership in the bargaining unit concerned obtained
by secret ballot in a meeting called for that purpose;
5. notice given to the DOLE of the results of the voting at
least seven days before the intended strike.
These requirements are mandatory and failure of a union
to comply therewith renders the strike illegal.

STRIKING PARTY

Who may file (IRR, Book V, Rule XXII, Sec. 6):

1) If based on ULP, any Legitimate Labor Organization (in the
absence of SEBA)
2) If based on BD, SEBA

Where to file (IRR, Book V, Rule XXII, Sec. 1):

National Conciliation and Mediation Board (NCMB)

Capitol Medical Center, Inc. v. NLRC (2005)

Art. 263. Strikes, picketing and lockouts.

(b) Workers shall have the right to engage in concerted activities for
purposes of collective bargaining or for their mutual benefit and
protection.
c. The right of legitimate labor organizations to strike and
picket and of employers to lockout, consistent with the
national interest, shall continue to be recognized and
respected.
d. However, no labor union may strike and no employer
may declare a lockout on grounds involving inter-union
and
intra-union
disputes.
(c) In case of bargaining deadlocks, the duly certified or recognized
bargaining agent may file a notice of strike or the employer may file
a notice of lockout with the Ministry at least 30 day before the
intended date thereof.

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In cases of unfair labor practice, the period of notice shall

be 15 days and in the absence of a duly certified or
recognized bargaining agent, the notice of strike may be
filed by any legitimate labor organization in behalf of its
members.
However, in case of dismissal from employment of union
officers duly elected in accordance with the union
constitution and by-laws, which may constitute union
busting, where the existence of the union is threatened,
the 15-day cooling-off period shall not apply and the
union may take action immediately.

Aside from the mandatory notices embedded in Article 263,

paragraphs (c) and (f) of the Labor Code, a union intending to stage
a strike is mandated to notify the NCMB of the meeting for the
conduct of strike vote, at least twenty-four (24) hours prior to such
meeting. Unless the NCMB is notified of the date, place and time of
the meeting of the union members for the conduct of a strike vote,
the NCMB would be unable to supervise the holding of the same, if
and when it decides to exercise its power of supervision.
The requirement of giving notice of the conduct of a strike
vote to the NCMB at least 24 hours before the meeting for the said
purpose is designed to (a) inform the NCMB of the intent of the
union to conduct a strike vote; (b) give the NCMB ample time to
decide on whether or not there is a need to supervise the conduct
of the strike vote to prevent any acts of violence and/or
irregularities attendant thereto; and (c) should the NCMB decide on
its own initiative or upon the request of an interested party
including the employer, to supervise the strike vote, to give it ample
time to prepare for the deployment of the requisite personnel,
including peace officers if need be.

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Requirements are mandatory, meaning, non-compliance

therewith makes the strike illegal. The evident intention of the
law in requiring the strike notice and strike-vote report is to
reasonably regulate the right to strike, which is essential to the
attainment of legitimate policy objectives embodied in the
law.
(Bukluran ng Manggagawa sa Clothman Knitting CorporationSolidarity Unions in the Phil. For Employment and Reforms v.
CA, 2005)

16. TEST OF LEGALITY

LEGAL STRIKES
Purpose and Means Test
Luzon Marine Dept Union v. Roldan (1950)
In the case of Rex Taxicab Company vs. Court of Industrial
Relations (70 Phil., 621), wherein this Supreme Court held that "the
employee, tenant or laborer is inhibited from striking or walking out
of his employment only when so enjoined by the Court of Industrial
Relations,"
c. it was also held that "in cases not falling within the
prohibition, the legality or illegality of a strike depends,
first, upon the purpose for which it is maintained, and,
second, upon the means employed in carrying it on."
d. Thus, if the purpose which the laborers intend to
accomplish by means of a strike is trivial, unreasonable or
unjust, or if in carrying on the strike the strikers should
commit violence or cause injuries to persons or damage
to property
the strike, although not prohibited by injunction,
may be declared by the court illegal, with the
adverse consequences to the strikers.
Caltex Phil. Inc. v. Phil Labor Org. Caltex Chapter (1953)
Our constitutional government assures the ER against deprivation
of their property except in accordance with the statutes or
supplementary equitable principles.
Philippine Marine Officers Guild v. Cia. Maritima (1968)
Acts of violence in this jurisdiction, when committed in
carrying on a strike are not to be overlooked in determining its
legality or illegality.
To overlook these acts of violence would encourage
abuses and terrorism and subvert the purpose of the law
which provides for arbitration and peaceful settlement of
disputes.
If a strike is unjustified as when it is declared for trivial,
unjust or unreasonable purpose, the employer may not
be compelled to reinstate the strikers to their
employment. More so, when the strike is carried on
illegally.
San Miguel Corp. v. NLRC (2003)
Pursuant to Article 218 (e), the coercive measure of injunction
may be used to restrain an actual or threatened unlawful strike. In
the case at bar, petitioner sought a permanent injunction to enjoin
the respondents strike. A strike is considered as the most effective
weapon in protecting the rights of the employees to improve the
terms and conditions of their employment. However, to be valid, a
strike must be pursued within legal bounds.
One of the procedural requisites that Article 263 of the Labor
Code and its Implementing Rules prescribe is the filing of a valid
notice of strike with the NCMB. Imposed for the purpose of
encouraging the voluntary settlement of disputes, this requirement
has been held to be mandatory, the lack of which shall render a
strike illegal.
Clearly, therefore, applying the aforecited ruling to the case at
bar, when the NCMB ordered the preventive mediation on May 2,
1994, respondent had thereupon lost the notices of strike it had
filed. Subsequently, however, it still defiantly proceeded with the
strike while mediation was ongoing, and notwithstanding the letteradvisories of NCMB warning it of its lack of notice of strike.
Such disregard of the mediation proceedings was a blatant
violation of the Implementing Rules, which explicitly oblige the

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parties to bargain collectively in good faith and prohibit them from

impeding or disrupting the proceedings.
Moreover, it bears stressing that Article 264(a) of the Labor
Code explicitly states that a declaration of strike without first having
filed the required notice is a prohibited activity, which may be
prevented through an injunction in accordance with Article 254.
Clearly, public respondent should have granted the injunctive relief
to prevent the grave damage brought about by the unlawful strike.
Malayang Samahan ng mga Manggagawa sa Greenfield v. Ramos
(2000)
Petitioners believed in good faith that in dismissing them upon
request by the federation, respondent company was guilty of unfair
labor pratice in that it violated the petitioners right to selforganization. The strike was staged to protest respondent
companys act of dismissing the union officers.
Even if the allegations of unfair labor practice are
subsequently found out to be untrue, the presumption of
legality of the strike prevails.
Guidelines and Balancing of Interest
Shell Oil Workers Union v. Shell Co. of the Phils (1971)
A strike otherwise valid, if violent in character, maybe placed
beyond the pale. Care is to be taken, however, especially where an
unfair labor practice is involved, to avoid stamping it with illegality
just because it is tainted by such acts. To avoid rendering illusory
the recognition of the right to strike, responsibility in such a case
should be individual and not collective. A different conclusion
would be called for, of course, if the existence of force while the
strike lasts is pervasive and widespread, consistently and
deliberately resorted to as a matter of policy. It could be reasonably
concluded then that even if justified as to ends, it becomes illegal
because of the means employed'.
This is not by any means to condone the utilization of force by
labor to attain its objectives. It is only to show awareness that in
labor conflicts, the tension that fills the air as well as the feeling of
frustration and bitterness could break out in sporadic acts of
violence.
If there be in this case a weighing of interests in the balance,
the ban the law imposes on unfair labor practices by management
that could provoke a strike and its requirement that it be conducted
peaceably, it would be, to repeat, unjustified, considering all the
facts disclosed, to stamp the strike with illegality. It is enough that
individual liability be incurred by those guilty of such acts of violence
that call for loss of employee status. Such an approach is reflected in
our recent decisions.
DEFENSES GOOD FAITH - ULP
Gen. Rule: A strike based on non-strikeable grounds is illegal
Exception: Employees believe in good faith that ULP acts exist so as
to constitute a valid ground to strike
(Interwood Employees Assoc v. Intl Hardwood, 1956)
Interwood Employees Assoc. v. Intl Hardwood (1956)
An established caveat, however, is that a mere claim of good
faith would not justify the holding of a strike under the aforesaid
exception as, in addition thereto, the circumstances must have
warranted such belief. It is, therefore, not enough that the union
believed that the employer committed acts of ULP when the
circumstances clearly negate even a prima facie showing to sustain
such belief.
PNOC Dockyard v. NLRC (1998)
Although rejecting that PNOC and its subsidiaries were guilty
of discrimination, the NLRC reiterated the policy enunciated in
several labor cases "that a strike does not automatically carry the
stigma of illegality even if no unfair labor practice were committed
by the employer. It suffices if such a belief in good faith is
entertained by labor as the inducing factor for staging a strike."
Indeed, the presumption of legality prevails even if the
allegation of unfair labor practice is subsequently found
to be untrue, provided that the union and its members
believed in good faith in the truth of such averment.

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ILLEGAL STRIKES

Art. 212(r)
"Strike-breaker" means any person who obstructs, impedes, or
interferes with by force, violence, coercion, threats, or intimidation
any peaceful picketing affecting wages, hours or conditions of work
or in the exercise of the right of self-organization or collective
bargaining.

Basis Illegality
In essence (based on Arts. 263-264), a strike is illegal if:
1) No good faith bargaining has been conducted yet
2) The strike is not based on valid grounds
3) Procedural requirements are not met
4) Any of the prohibited acts stated in Art. 264 is done
Phil. Diamond Hotel and Resort, Inc. v. Manila Diamond Hotel
Employees Union (2006)
Even if the purpose of a strike is valid, the strike may still be
held illegal where the means employed are illegal.
In this case, the union was never the sole and exclusive
bargaining agent (SEBA) of the bargaining unit. Its move to bargain
collectively for its members only tends to fragment the workers
interest. Likewise, The union still went on strike on Nov. 29, 1997
despite the fact that in a couple of days, on Dec. 1, 1997, there was
a scheduled conciliatory meeting between the parties.
Effect of Illegality
Effect of Illegal Strike (Art. 264):
1) To Union Officer loss of employment
2) To Union Member None (loss of employment ONLY IF illegal
acts are committed during such strike)
Effect of Illegal Lockout (Art. 264):
1) To Dismissed Employees reinstatement with full backwages
San Juan de Dios etc. v. San Juan de Dios (2004)
Despite the receipt of an order from then SOLE to return to
their respective jobs, the Union officers and members refused to do
so and defied the same. Consequently, then, the strike staged by
the Union is a prohibited activity under Article 264 of the Labor
Code. Hence, the dismissal of its officers is in order. The respondent
Foundation was, thus, justified in terminating the employment of
the petitioner Unions officers.
Stamford Marketing Corp. v. Julian (2004)
Article 264 of the Labor Code, in providing for the
consequences of an illegal strike, makes a distinction between
union officers and members who participated thereon. Thus,
knowingly participating in an illegal strike is a valid ground for
termination from employment of a union officer. The law, however,
treats differently mere union members. Mere participation in an
illegal strike is not a sufficient ground for termination of the services
of the union members. The Labor Code protects an ordinary, rankand-file union member who participated in such a strike from losing
his job, provided that he did not commit an illegal act during the
strike. Thus, absent any clear, substantial and convincing proof of
illegal acts committed during an illegal strike, an ordinary striking
worker or employee may not be terminated from work.
With respect to union officers, however, there is no dispute
they could be dismissed for participating in an illegal strike. Union
officers are duty- bound to guide their members to respect the law.
Nonetheless, as in other termination cases, union officers must be
given the required notices for terminating an employment, i.e.,
notice of hearing to enable them to present their side, and notice of
termination, should their explanation prove unsatisfactory. Nothing
in Article 264 of the Labor Code authorizes an immediate dismissal
of a union officer for participating in an illegal strike. The act of
dismissal is not intended to happen ipso facto but rather as an
option that can be exercised by the employer and after compliance
with the notice requirements for terminating an employee. In this
case, petitioners did not give the required notices to the union
officers.
Employment of Strike Breakers
Art. 264 (c)
No employer shall use or employ any strike-breaker, nor shall any
person be employed as a strike-breaker.

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Run-Away Shop
one wherein the employer moves its business to
another location or it temporarily closes its business for anti-union
purposes
Complex Electronics Employees Assoc v. NLRC (1999)
The Union anchors its position on the fact that Lawrence Qua
is both the president of Complex and Ionics and that both
companies have the same set of Board of Directors. It claims that
business has not ceased at Complex but was merely transferred to
Ionics, a runaway shop.
Held: The Union's contentions are untenable.
A runaway shop is defined as one wherein the employer
moves its business to another location or it temporarily closes its
business for anti-union purposes. A runaway shop in this sense, is
a relocation motivated by anti-union animus rather than for
business reasons.
In this case, however, Ionics was not set up merely for the
purpose of transferring the business of Complex. At the time the
labor dispute arose at Complex, Ionics was already existing as an
independent company.
The mere fact that one or more corporations are owned or
controlled by the same or single stockholder is not a sufficient
ground for disregarding separate corporate personalities.
Ionics may be engaged in the same business as that of
Complex, but this fact alone is not enough reason to pierce the veil
of corporate fiction of the corporation.
As very clearly established, the closure was triggered by the
customers' pull-out of their equipment, machinery and materials,
who were alarmed by the pending labor dispute and the imminent
strike by the union, and as a protection to their interest pulled-out
of business from Complex who had no recourse but to cease
operation to prevent further losses.
Burden of Economic Loss
Crownwell Commercial Employees & Laborers Union v. CIR (1964)
At the outset, two types of employees involved in this case
must be distinguished, namely, those who were discriminatorily
dismissed for union activities and those who voluntarily went on
strike.
Gen. Rule: Striking employees are entitled to reinstatement
whether or not the strike was the consequence of the employer's
unfair labor practice
Exception: Employees may be denied reinstatement because of (1)
unlawful conduct or (2) because of violence
Note: Refer to Philippine Diamond Case (2006)
Consolidated Labor Assoc. v. Marsman & Co. (1964)
We now come to the question of backpay. In an economic
strike, the strikers are not entitled to backpay, since the employer
should get the equivalent day's work for what he pays his
employees. During the time that the strike was an economic one,
complainants had no right to back pay. The Industrial Court could
not have made a finding of unfair labor practice with respect to
such time, as none had so far been committed. This being an unfair
labor practice case, it cannot, therefore, order reinstatement much
less back pay for that period.
On the other hand, even after the court has made a finding of
unfair labor practice, it still has the discretion to determine whether
or not to grant back pay. Such discretion was not abused when it
denied back wages to complainants, considering the climate of
violence which attended the strike and picket that the complainants
conducted. While the complainants ordered reinstated did not
actively take part in the acts of violence, their minatory attitude
towards the Company may be gathered from the fact that from the
very first day of the strike policemen had to patrol the strike zone in
order to preserve peace.

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SSS v. SSS Supervisors Union (1982)

We find for the petitioner based on the equitable tenet of a
"fair day's wage for a fair day's labor."
"The age-old rule governing the relation between labor and
capital or management and employee is that of a 'fair day's age for
a fair day's labor.' If there is no work performed by the employee
there can be no wage or pay, unless of course the laborer was able,
willing and ready to work but "as illegally locked out, dismissed or
suspended. It is hardly fair or just for an employee or laborer to
fight or litigate against his employer on the employer's time."
Phil. Diamond Hotel and Resort, Inc. v. Manila Diamond Hotel
Employees Union (2006)
In Cromwell Commercial Employees and Laborers Union (PTUC)
v. Court of Industrial Relations, this Court made a distinction
between two types of employees involved in a ULP: those who are
discriminatorily dismissed for union activities, and those who
voluntarily go on strike even if it is in protest of an ULP.
Discriminatorily dismissed employees were ordered entitled to
backpay from the date of the act of discrimination, that is, from the
day of their discharge, whereas employees who struck as a
voluntary act of protest against what they considered a ULP of their
employer were held generally not entitled to backpay.
Jurisprudential law, however, recognizes several exceptions to
the "no backwages rule," to wit:
- when the employees were illegally locked to thus compel them to
stage a strike;
- when the employer is guilty of the grossest form of ULP;
- when the employer committed discrimination in the rehiring of
strikers refusing to readmit those against whom there were
pending criminal cases while admitting nonstrikers who were also
criminally charged in court; or
- when the workers who staged a voluntary ULP strike offered to
return to work unconditionally but the employer refused to
reinstate them.
Improved Offer Balloting and Strikes
Art. 265
Improved offer balloting.
In an effort to settle a strike, the Department of Labor and
Employment shall conduct a referendum by secret ballot on the
improved offer of the employer on or before the 30th day of the
strike.
3.

When at least a majority of the union members vote to

accept the improved offer the striking workers shall
immediately return to work and the employer shall
thereupon readmit them upon the signing of the
agreement.
In case of a lockout, the Department of Labor and Employment shall
also conduct a referendum by secret balloting on the reduced offer
of the union on or before the 30th day of the lockout.
4. When at least a majority of the board of directors or
trustees or the partners holding the controlling interest in
the case of a partnership vote to accept the reduced
offer, the workers shall immediately return to work and
the employer shall thereupon readmit them upon the
signing of the agreement
9.03 PICKETING
Definition:
PICKETING consists in walking or patrolling the vicinity of a place
of business involved in a labor dispute to inform the public about
the dispute.
Requisites of a valid picket:
1) Aim is to inform public about the labor dispute
2) Must be conducted peacefully
- NOT carried on with intimidation, threats, coercion,
force
- NOT accompanied with vandalism
- NO obstruction of ingress/egress in place of business

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NATURE AND PURPOSE OF PICKET LINE

Security Bank Employees Union v. Security Bank and Trust Co.
(1968)
This is not to say that picketing, like freedom of expression in
general, has no limits. Certainly, to the extent that it is an
instrument of coercion rather than of persuasion, it cannot
rightfully be entitled to the protection associated with free speech.
Equally so, there can be no indiscriminate ban on the freedom to
disseminate the facts of a labor dispute and to appeal for public
sympathy, which is the aim of peaceful picketing, without a
transgression of the Constitution, sufficient to oust a court of
jurisdiction, even on the assumption that it was originally possessed
of such a competence, which was not so in this case as had been
earlier made clear.
PAFLU V. Cloribel (1969)
The right to picket as a means of communicating the facts of a
labor dispute is a phase of the freedom of speech guaranteed by
the constitution. If peacefully carried out, it can not be curtailed
even in the absence of employer-employee relationship.
The right is, however, not an absolute one. While peaceful
picketing is entitled to protection as an exercise of free speech, we
believe that courts are not without power to confine or localize the
sphere of communication or the demonstration to the parties to
the labor dispute, including those with related interest, and to
insulate establishments or persons with no industrial connection or
having interest totally foreign to the context of the dispute.
Thus the right may be regulated at the instance of third parties
or "innocent bystanders" if it appears that the inevitable result of its
exercise is to create an impression that a labor dispute with which
they have no connection or interest exists between them and the
picketing union or constitute an invasion of their rights.
PICKETING AND LIBEL LAWS
PCIB V. Philnabank Employees (1981)
There is a unique aspect to this action for libel against the
Philippine National Bank Employees' Association. It was filed by
plaintiff PCIB as a result of placards and signboards along the PNB
building in Escolta, Manila, containing the following: "PCIB BAD
ACCOUNTS TRANSFERRED TO PNB-NIDC?"
There was a labor controversy resulting in a strike, fortunately
lasting only for one day. The labor union made use of its
constitutional right to picket.
From the time of Mortera vs. CIR, a 1947 decision this Court
has been committed to the view that' peaceful picketing is part of
the freedom of speech guarantee of the Constitution. The latest
case in point where such a principle was reaffirmed expressly is
Associated Labor Union v. Gomez, a 1980 decision.
There is no mention of the other placards but it is not unlikely
that to bolster its claim, mention was likewise made and in bold
letters at that of such alleged failing of its management. That was
the aim and intent as found by the lower court. That could not very
well be disputed by plaintiff-appellant. Unfortunately, the offending
imputation, but in the form of a question, was included. It was due
to a former official of plaintiff appellant's bank who was thereafter
named as President of the Philippine National Bank. Should there
be an automatic attitude of condemnation for such incident?
If the realistic observation of Justice Frankfurter in Milk Wagon
Drivers Union of Chicago v. Meadowmoor Dairies be heeded that
labor disputes give rise to strong emotional response, then the
decision reached by the lower court becomes even more
acceptable.
5. It is a fact of industrial life, both in the Philippines as in
the United States, that in the continuing confrontation
between labor and management, it is far from likely that
the language employed would be both courteous and
polite. Such being the case, there is no affront either to
reason or to the law in the complaint for libel being
dismissed. In placing reliance on the constitutional right
of freedom of expression, this Court once again makes
manifest its adherence to the principle first announced
by Justice Malcolm as ponente in the leading case of
United States v. Bustos.
6. In no uncertain terms, it made clear that the judiciary, in
deciding suits for libel, must ascertain whether or not the

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alleged offending words may be embraced by the

guarantees of free speech and free press. It cannot be
too often said that Bustos was promulgated as far back as
March 8, 1918. A doctrine analogous in character.

industrial connection or having interest totally foreign to

the context of the dispute.
Thus, the right may be regulated at the instance of
third parties or 'innocent bystanders' if it appears that
the inevitable result of its exercise is to create an
impression that a labor dispute with which they have no
connection or interest exists between them and the
picketing union or constitute an invasion of their rights.

EMPLOYER-EMPLOYEE RELATIONSHIP
De Leon v. National Labor Union (1957)
PICKETING; ABSENCE OF EMPLOYER-EMPLOYEE RELATIONSHIP
DOES NOT MAKE PICKETING ILLEGAL.-Picketing peacefully carried
out is not illegal even in the absence of employer-employee
relationship, for peaceful picketing is a part of the freedom of
speech guaranteed by the Constitution.
CURTAILMENT
Free Telephone Workers Union v. PLDT Co. (1982)
Indeed, it is now well-settled that peaceful picketing cannot be
restrained because the same is part of the freedom of speech but
petitioner fails to realize that the questioned July 16, 1965 order of
the Court of Industrial Relations did not refer to peaceful picketing.
In Mortera, supra, where the therein questioned order partly
declared that ". . . picketing under any guise and form is hereby
prohibited . . .," this Court ruled that the "order of the Court of
Industrial Relations prohibiting picketing must be understood to
refer only to illegal picketing, that is, picketing through the use of
illegal means.
In this case, the questioned (restraining) order should also be
taken as limited to the lifting of the picket lines which constituted
illegal picketing especially so because it expressly stated that the
petitioner union and its officers, agents or symphatizers "are hereby
directed to call off the strike declared on July 17, 1965, and to lift
the picket lines established in and around the premises of
respondent company's various offices and installations . . . . The
persons manning the picket lines in these places are hereby
enjoined from impeding and interfering with implementation of this
Order as well as from interfering in any manner with the operations
of respondent.
Nagkakaisang Manggagawa sa Cuizon Hotel v. Libron (1983)
The above restraining order had to be issued because as
contended in the petition, the order of the labor arbiter certainly
cannot be declared final and executory upon the mere issuance
thereof. That is manifestly in contravention of the law. Article 223
of the Labor Code is quite explicit on the matter, a period of 10 days
being granted either or both to the parties involved from receipt of
any order to appeal to the National Labor Relations Commission.
Moreover, the wholesale condemnation of peaceful picketing
is likewise clearly bereft of support in law. As pointed out in a very
recent decision decided this year, PAFLU v. CFI of Rizal: "It need not
be stressed that peaceful picketing is embraced in freedom of
expression. As emphatically declared in Philippine Commercial &
Industrial Bank v. Philnabank Employees' Association: 'From the
time of Mortera v. Court of Industrial Relations, a 1947 decision this
Court has been committed to the view that peaceful picketing is
part of the freedom of speech guarantee of the Constitution.'
Reference was made in such opinion to Associated Labor Union v.
Gomez.
RESTRICTIONS, INNOCENT THIRD PARTY RULE AND LIABILITIES
Liwayway Publishing Co. v. Permanent Concrete Workers Union
(1981)
At this juncture, it is well to cite and stress the
pronouncements of the Supreme Court on the right to picket. Thus,
in the case of PAFLU vs. Cloribel, the SC said:
"The right to picket as a means of communicating
the facts of a labor dispute is a phase of the freedom of
speech guaranteed by the constitution. If peacefully
carried out, it cannot be curtailed even in the absence of
employer-employee relationship.
The right is, however, not an absolute one. While
peaceful picketing is entitled to protection as an
exercise of free speech, we believe that courts are not
without power to confine or localize the sphere of
communication or the demonstration to the parties to
the labor dispute, including those with related interest,
and to insulate establishments or persons with no

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The same case state clearly and succinctly the rationalization

for the court's regulation of the right to picket in the following wise
and manner:
"Wellington and Galang are mere 'innocent
bystanders'. They are entitled to seek protection of their
rights from the courts and the courts may, accordingly,
legally extend the same. Moreover, PAFLU's right to
peacefully picket METBANK is not curtailed by the
injunctions issued by respondent judge. The picket is
merely regulated to protect the rights of third parties.
And the reason for this is not farfetched. If the law fails
to afford said protection, men will endeavor to
safeguard their rights by their own might, take the law
in their own hands, and commit acts which lead to
breaches of the law. This should not be allowed to
happen."
MSF Tire and Rubber Inc. v. CA (1999)
Thus, an "innocent bystander," who seeks to enjoin a labor
strike, must satisfy the court that aside from the grounds specified
in Rule 58 of the Rules of Court, it is entirely different from, without
any connection whatsoever to, either party to the dispute and,
therefore, its interests are totally foreign to the context thereof.
PROHIBITED ACTIVITIES- PEACEFUL PICKETING
Art. 264 (b)
No person shall obstruct, impede, or interfere with, by force,
violence, coercion, threats or intimidation, any peaceful picketing
by employees during any labor controversy or in the exercise of the
right to self-organization or collective bargaining, or shall aid or
abet such obstruction or interference.
9.04 ROLE OF PEACE OFFICERS DURING STRIKES AND PICKETING
ESCORTING
Art. 264 (d)
No public official or employee, including officers and personnel of
the New Armed Forces of the Philippines or the Integrated National
Police, or armed person,
3. shall bring in, introduce or escort in any manner,
4. any individual who seeks to replace strikers in entering or
leaving the premises of a strike area, or work in place of
the strikers.
The police force shall keep out of the picket lines unless actual
violence or other criminal acts occur therein:
IV.
Provided, That nothing herein shall be interpreted to
prevent any public officer from taking any measure
necessary to maintain peace and order, protect life and
property, and/or enforce the law and legal order.
ARREST AND DETENTION OF LAW VIOLATORS
Art. 266
Requirement for arrest and detention.
Except on grounds of national security and public peace or in case
of commission of a crime,

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3.

no union members or union organizers may be arrested

or detained for union activities without previous
consultations with the Secretary of Labor.

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Part IX
LABOR INJUNCTION

10.02 GENERAL RULE PROHIBITION

10.01 DEFINITION AND NATURE

INJUNCTION: An injunction is available as a remedy for harm for
which there is no adequate remedy at law. Thus it is used to
prevent a future harmful action rather than to compensate for an
injury that has already been occurred, or to provide relief from
harm for which an award of money damages is not a satisfactory
solution or for which a monetary value is impossible to calculate. A
defendant who violates an injunction is subject to penalty for
contempt. (Webster)
Philippine Airlines, Inc. v. NLRC (1998)
GENERALLY, injunction is a preservative remedy for the
protection of one's substantive rights or interest. It is not a cause of
action in itself but merely a provisional remedy, an adjunct to a
main suit.
It is resorted to only when there is a pressing necessity to
avoid injurious consequences which cannot be remedied under any
standard of compensation. The application of the injunctive writ
rests upon the existence of an emergency or of a special reason
before the main case be regularly heard.
The essential conditions for granting such temporary
injunctive relief are:
1) that the complaint alleges facts which appear to be
sufficient to constitute a proper basis for injunction and
2)
that on the entire showing from the contending parties,
the injunction is reasonably necessary to protect the legal
rights of the plaintiff pending the litigation.
Injunction is also a special equitable relief granted only in
cases where there is no plain, adequate and complete remedy at
law.
The foregoing ancillary power may be exercised by the Labor
Arbiters:

ONLY as an INCIDENT to the cases pending before them

in order to preserve the rights of the parties during the
pendency of the case,

BUT excluding labor disputes involving strikes or lockout.

Why does injunction not apply to the facts of this case?
In the present case, there is no labor dispute between the
petitioner and private respondents as there has yet been no
complaint for illegal dismissal filed with the labor arbiter by the
private respondents against the petitioner.
Furthermore, an examination of private respondents' petition for
injunction reveals that it has no basis since there is no showing of
any urgency or irreparable injury which the private respondents
might suffer.

Art. 254
No temporary or permanent injunction or restraining order in any
case involving or growing out of labor disputes shall be issued by
any court or other entity, except as otherwise provided in Articles
218 and 264 of this code.
Art. 212 (l)
LABOR DISPUTE includes any controversy or matters:

concerning terms or conditions of employment or the

association or

representation of persons in negotiating, fixing,

maintaining, changing or arranging the terms and
conditions of employment,

regardless of whether the disputants stand in the

proximate relation of employer and employee.

ART. 218
Powers of the Commission. The Commission shall have the
power and authority:
(e) To enjoin or restrain any actual or threatened commission of any
or all prohibited or unlawful acts or to require the performance of a
particular act in any labor dispute

which, if not restrained or performed forthwith, may

cause grave or irreparable damage to any party or render
ineffectual any decision in favor of such party:

Provided, That no temporary or permanent injunction in

any case involving or growing out of a labor dispute as
defined in this Code shall be issued
except after hearing the testimony of witnesses, with opportunity
for cross-examination, in support of the allegations of a complaint
made under oath,
and testimony in opposition thereto, if offered, and only after a
finding of fact by the commission, to the effect:
(1) That prohibited or unlawful acts have been
threatened and will be committed and will be
continued unless restrained but no injunction
or temporary restraining order shall be issued
on account of any threat, prohibited or
unlawful act, except against the person or
persons, association or organization making
the threat or committing the prohibited or
unlawful act or actually authorizing or
ratifying the same after actual knowledge
thereof;

When is an injury considered irreparable?

An injury is considered irreparable if it is of such constant and
frequent recurrence that no fair and reasonable redress can be had
therefor in a court of law, or where there is no standard by which
their amount can be measured with reasonable accuracy, that is, it
is not susceptible of mathematical computation.
It is considered irreparable injury when it cannot be
adequately compensated in damages due to the nature of the injury
itself or the nature of the right or property injured or when there
exists no certain pecuniary standard for the measurement of
damages.
POLICY BEHIND PROHIBITION OF ISSUANCE OF INJUNCTION:
It has been the policy of the State to encourage the parties to
use the non-judicial process of negotiation and compromise,
mediation and arbitration.

Thus, injunctions may be issued only in cases of extreme

necessity based on legal grounds clearly established, after due
consultations or hearing and when all efforts at conciliation
are exhausted which factors, however, are clearly absent in
the present case.

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2)

That substantial and irreparable injury to

complainants property will follow;

3)

That as to each item of relief to be granted,

greater injury will be inflicted upon
complainant by the denial of relief than will
be inflicted upon defendants by the granting
of relief;

4)

That complainant has no adequate remedy at

law; and"

(5) That the public officers charged with the duty to

protect complainants property are unable or
unwilling to furnish adequate protection.
"Such hearing shall be held after due and
personal notice thereof has been served, in
such manner as the Commission shall direct,
to all known persons against whom relief is
sought, and also to the Chief Executive and
other public officials of the province or city
within which the unlawful have been
threatened or committed charged with the
duty to protect complainant's property:

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Provided, however,

such an injunction is not to enjoin the strike itself, but only unlawful
activities.

a) the complainant "shall also allege that, unless a

temporary restraining order shall be issued without notice,
a SUBSTANTIAL and IRREPARABLE
INJURY to complainant's PROPERTY will
be unavoidable;"
b) there is "TESTIMONY under OATH, sufficient, if sustained,
to justify the Commission in issuing a temporary injunction
upon hearing after notice;"
c) the "temporary restraining order shall be effective for no
longer than twenty (20) days and shall become void at the
expiration of said twenty (20) days."
d) No such temporary restraining order or temporary
injunction shall be issued except on condition that
"complainant shall first file an undertaking with adequate
security in an amount to be fixed by the Commission sufficient
to recompense those enjoined for any loss, expense or
damage caused by the improvident or erroneous issuance of
such order or injunction, including all reasonable costs,
together with a reasonable attorney's fee, and expense of
defense against the order or against the granting of any
injunctive relief sought in the same proceeding and
subsequently denied by the Commission;"
The UNDERTAKING herein mentioned shall be understood to
constitute an agreement into by the complainant and the surety
upon which an order may be rendered in the same suit or
proceeding against said complainant and surety upon a hearing to
assess damages, of which hearing complainant and surety shall
have reasonable notice, the said complainant and surety submitting
themselves to the jurisdiction of the Commission for that purpose.
But nothing herein contained shall deprive any party having a claim
or cause of action under or upon such undertaking from electing to
pursue his ordinary remedy by suit at law or in equity:
Provided, further, That the reception of evidence for the application
of a writ of injunction may be delegated by the Commission to any
of its Labor Arbiters who shall conduct such hearings in such places
as he may determine to be accessible to the parties and their
witnesses and shall submit thereafter his recommendation to the
Commission.
Caltex Filipino Managers and Supervisors Assoc. v. CIR (72)
RATIONALE for prohibition:
1) It is well known that the scheme in Republic Act No. 875
for achieving industrial peace rests essentially on a FREE
AND PRIVATE AGREEMENT between the employer and
his employees as to the terms and conditions under
which the employer is to give work and the employees
are to furnish labor, unhampered as far as possible by
judicial or administrative intervention. On this premise
the lawmaking body has virtually prohibited the issuance
of injunctive relief involving or growing out of labor
disputes.
2) The prohibition to issue labor injunctions is designed to
give labor a comparable bargaining power with capital
and must be liberally construed to that end.
GENERAL RULE: there can be no injunction issued against any
strike.
EXCEPT in only one instance, that is, when a labor dispute
arises in an INDUSTRY INDISPENSABLE TO THE NATIONAL INTEREST
and such dispute is CERTIFIED BY THE PRESIDENT of the Philippines
to the Court of Industrial Relations in compliance with Sec. 10 of
Republic Act No. 875.
Purpose of an injunction in an UNCERTIFIED case: As a corollary to
this, an injunction in an uncertified case must be based on the strict
requirements of Sec. 9(d) of Republic Act No. 875; the purpose of

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10.03 EXCEPTIONS WHEN INJUCTION ALLOWED

Ilaw at Buklod ng Manggagawa v. NLRC (1991)
HELD: Also untenable is the Union's other argument that the
respondent NLRC Division had no jurisdiction to issue the
temporary restraining order or otherwise grant the preliminary
injunction prayed for by SMC and that, even assuming the contrary,
the restraining order had been improperly issued. The Court finds
that the respondent Commission had acted entirely in accord with
applicable provisions of the Labor Code.
GENERAL RULE:
Article 254 of the Code provides that:
"No temporary or permanent injunction or
restraining order in any case involving or
growing out of labor disputes shall be issued by
any court or other entity, except as otherwise
provided in Articles 218 and 264 . . .
EXCEPTIONS:
Article 264 lists down specific "prohibited activities" which
may be forbidden or stopped by a restraining order or
injunction.
Article 218 inter alia enumerates the powers of the
National Labor Relations Commission and lays down the conditions
under which a restraining order or preliminary injunction may issue,
and the procedure to be followed in issuing the same.
Among the powers expressly conferred on the Commission by
Article 218 is the power to "enjoin or restrain any actual or
threatened commission of any or all prohibited or unlawful acts or
to require the performance of a particular act in any labor dispute
which,:

if not restrained or performed forthwith, may cause

grave or irreparable damage to any party or render
ineffectual any decision in favor of such party . . . ."
National Mines and Allied Workers v. Vera (1984)
An injunction is a proper remedy to prevent a sheriff from
selling the property of one person for the purpose of paying the
debts of another." (In this case, NO LABOR DISPUTE exists).
To sustain petitioners' theory will inevitably lead to disastrous
consequences and lend judicial imprimatur to deprivation of
property without due process of law.
Simply because a writ of execution was issued by the NLRC
does not authorize the sheriff implementing the same to levy on
anybody's property. To deny the victim of the wrongful levy, the
recourse such as that availed of by the herein private respondents,
under the pretext that no court of general jurisdiction can interfere
with the writ of execution issued in a labor dispute, will be
sanctioning a greater evil than that sought to be avoided by the
Labor Code provision in question. Certainly, that could not have
been the intendment of the law creating the NLRC. For well-settled
is the rule that the power of a court to execute its judgment
extends only over properties unquestionably belonging to the
judgment debtor.
Ravago v. Eastern Marine Ltd (2005)
NO Labor Dispute exists in this case
Facts: Petitioner is a seafarer who was hired on a contractual
basis. Shortly after the termination of his latest contract, he was
granted a vacation leave. During that time, he was hit by a stray
bullet on his left leg which caused permanent injury. Eastern Marine
refused to re-hire him. Petitioner filed a case for illegal dismissal.
The Labor Arbiter found that Petitioner was not illegally
dismissed. NLRC reversed. On appeal, CA issued a preliminary
injunction.
The petitioner asserts that the CA violated Article 254 of the
Labor Code when it issued a temporary restraining order, and
thereafter a writ of preliminary injunction, to derail the
enforcement of the final and executory judgment of the Labor
Arbiter as affirmed by the NLRC. On the other hand, the
respondents contend that the issue has become academic since the
CA had already decided the case on its merits.

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Held: The petitioners reliance on Article 25 of the Labor Code

is misplaced. The law proscribes the issuance of injunctive relief
only in those cases involving or growing out of a labor dispute.

The case before the NLRC neither involves nor grows out
of a labor dispute. It did not involve the fixing of terms or
conditions of employment or representation of persons
with respect thereto.

In fact, the petitioners complaint revolves around the

issue of his alleged dismissal from service and his claim
for backwages, damages and attorneys fees. Moreover,
Article 254 of the Labor Code specifically provides that
the NLRC may grant injunctive relief under Article 218
thereof.
Besides, the anti-injunction policy of the Labor Code, basically,
is freedom at the workplace. It is more appropriate in the
promotion of the primacy of free collective bargaining and
negotiations, including voluntary arbitration, mediation and
conciliation, as modes of settling labor and industrial disputes.

10.04 ISSUING AGENCY

1. NATIONAL LABOR RELATIONS COMMISSION AND ROLE OF THE
LABOR ARBITER
See Art. 218 (e) Above
ROLE OF THE LABOR ARBITER ( Book V Rule XXI sec. 13)
The reception of evidence for the application of the writ of
injunction may be delegated by the Commission to any Labor
Arbiter who shall submit his recommendations to the Commissions
for its consideration and resolution.

5)

EXCEPTION: When it can issue ex parte.

However, a temporary restraining order may be issued ex
parte under the following conditions:
a. the complainant "shall also allege that, unless a
temporary restraining order shall be issued without
notice,

a SUBSTANTIAL and IRREPARABLE INJURY to

complainant's PROPERTY will be unavoidable;"
b. there is "TESTIMONY under OATH, sufficient, if sustained,
to justify the Commission in issuing a temporary
injunction upon hearing after notice;"
c. the "complainant shall first file an undertaking with
adequate security in an amount to be fixed by the
Commission sufficient to recompense those enjoined for
any loss, expense or damage caused by the improvident
or erroneous issuance of such order or injunction,
including all reasonable costs, together with a reasonable
attorney's fee, and expense of defense against the order
or against the granting of any injunctive relief sought in
the same proceeding and subsequently denied by the
Commission;" and
Bisig ng Manggagawa, etc. v. NLRC (1993)
In the case at bar, the records will show that the respondent
NLRC failed to comply with the letter and spirit of Article 218 (e), (4)
and (5) of the Labor Code in issuing its Order of May 5, 1992.

2. PROCEDURAL REQUIREMENTS AND RULES FOR THE ISSUANCE

OF LABOR INJUNCTIONS
Ilaw at Buklod ng Manggagawa (IBM) v. NLRC (1991)
GENERAL RULE: Cannot issue EX PARTE
As a rule such restraining orders or injunctions do not issue ex
parte, but only after compliance with the following requisites, to
wit:
a. a HEARING held "after due and PERSONAL NOTICE
thereof has been served, in such manner as the
Commission shall direct, to all known persons against
whom relief is sought, and also to the Chief Executive and
other public officials of the province or city within which
the unlawful acts have been threatened or committed
charged with the duty to protect complainant's property
b.

c.

reception at the hearing of "testimony of witnesses, with

opportunity for cross-examination, in support of the
allegations of a complaint made under oath," as well as
"testimony in opposition thereto, if offered . . .;
"a finding of fact by the Commission, to the effect:
1) That prohibited or unlawful acts have been
threatened and will be committed and will be
continued unless restrained,

but no injunction or temporary restraining

order shall be issued on account of any
threat, prohibited or unlawful act,

except against the person or persons,

association or organization making the
threat or committing the prohibited or
unlawful act or actually authorizing or
ratifying the same after actual knowledge
thereof;
2) That substantial and irreparable injury to
complainant's property will follow;
3) That as to each item of relief to be granted,
greater injury will be inflicted upon complainant
by the denial of relief than will be indicted upon
defendants by the granting of relief;
4) That complainant has no adequate remedy at
law; and

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That the public officers charged with the duty to

protect complainant's property are unable or
unwilling to furnish adequate protection."

Article 218 (e) of the Labor Code provides both the

procedural and substantive requirements which must
strictly be complied with before a temporary or
permanent injunction can issue in a labor dispute
"Verily, the factual circumstances proven by the evidence
show that there was no concurrence of the five (5)
prerequisites mandated by Art. 218(e) of the Labor Code.
Thus there is no justification for the issuance of the
questioned Order of preliminary injunction."

To be sure, the issuance of an ex parte temporary restraining

order in a labor dispute is not per se prohibited. Its issuance,
however, should be characterized by care and caution for the law
requires that it be clearly justified by considerations of EXTREME
NECESSITY, i.e., when the commission of unlawful acts is causing
substantial and irreparable injury to company properties and the
company is, for the moment, bereft of an adequate remedy at law.
This is as it ought to be, for imprudently issued temporary
restraining orders can break the back of employees engaged in a
legal strike.
3. INJUNCTION AND MED-ARBITER
Dinio v. Laguesma (1997)
In the performance of his duties, the public respondent should
not be shackled by stringent rules, if to do so would result in
manifest injustice. Thus, he cannot, and correctly did not, turn a
blind eye to the arbitrary and haphazard manner by which the MedArbiter issued the subject temporary restraining order, even though
this issue was not explicitly raised by private respondents.
There is no question that the issuance of a temporary
restraining order is addressed to the sound discretion of the MedArbiter.

However, "this discretion should be exercised based

upon the grounds and in the manner provided by law."
In the case of labor injunctions or temporary restraining
orders, one may issue only in instances where the complainant or
applicant will suffer grave or irreparable damages as provided in
Sec. 5, Rule XVI, Book V of the Omnibus Rules Implementing the
Labor Code:

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Sec 5.
Injunctions. No temporary injunctions
or restraining order in any case involving or growing out
of a labor dispute shall be issued by any court or other
entity. On the other hand, the Office of the President,
the Secretary of Labor, the Commission, the Labor

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Arbiter or med-arbiter may enjoin any or all acts

involving or arising from any case pending before any of
said offices or officials which if not restrained forthwith
may cause grave or irreparable damage to any of the
parties to the case or seriously affect social or economic
stability.

(1) That prohibited or unlawful acts have

been threatened and will be committed
and will be continued unless restrained
but no injunction or temporary
restraining order shall be issued on
account of any threat, prohibited or
unlawful act, except against the person or
persons, association or organization
making the threat or committing the
prohibited or unlawful act or actually
authorizing or ratifying the same after
actual knowledge thereof;

While it is true that the Med-Arbiter has the authority to issue

a writ of preliminary injunction, or a temporary restraining order
against any act arising from any case pending before him, the
exercise thereof shall always be subject to the test of
reasonableness.
The Med-Arbiter should ascertain that the act complained of,
if not restrained forthwith, may cause grave or irreparable damage
to any of the parties to the case.

"(2) That substantial and irreparable injury to

complainants property will follow;

When damage is considered "irreparable":

a) if it is of such constant and frequent recurrence that no
fair or reasonable redress can be had therefor in a court
of law (Allendorf vs. Abalanson, 38 Phil. 585), or
b) where there is no standard by which their amount can be
measured with reasonable accuracy, that is, it is not
susceptible of mathematical computation (SSC vs.
Bayona, et al., L-13555, May 30, 1962).

"(3) That as to each item of relief to be

granted, greater injury will be inflicted
upon complainant by the denial of relief
than will be inflicted upon defendants by
the granting of relief;

DISINI:
1. Labor Injunction is not the same as the injunction under the
rules of court.
2. General rule is stated in Art. 254
- The exceptions are in Art. 218 and Art. 264
- If you are filing injunction under Art. 218, the allegations of
the acts committed are different from the allegations of acts
committed under Art. 264. BUT the procedure to follow is the
same, Art. 218.
3. Procedure for issuance of TRO is different from procedure of
issuance of Injunction.
- The similarity is in the testimony given.
- But TRO is different because it is valid only for 20 days.
4. It is important to take note of the BOND filed and what other
remedies there are just in case the injunction or TRO is
wrongfully issued.

(5) That the public officers charged with the

duty to protect complainants property
are unable or unwilling to furnish
adequate protection.

ART. 218
Powers of the Commission. The Commission shall have the
power and authority:
I.

ALLEGATIONS FOR ART. 218 TO APPLY

(e)

--

II.
--

To enjoin or restrain any actual or threatened

commission of any or all prohibited or unlawful
acts or to require the performance of a
particular act in any labor dispute

B.
C.
D.

E.

III.

a)

PERSONAL NOTICE To whom : "Such

hearing shall be held after due and
personal notice thereof has been served,
in such manner as the Commission shall
direct,
- to all known persons against whom
relief is sought,
- and also to the Chief Executive and
- other public officials of the province or
city within which the unlawful have been
threatened or committed charged with
the duty to protect complainant's
property:

PROCEDURE for
Restraining Order

issuance

of

Temporary

Provided, however,
the complainant "shall also allege that, unless a temporary
restraining order shall be issued without notice,
- a SUBSTANTIAL and IRREPARABLE INJURY to complainant's
PROPERTY will be unavoidable;"

which, if not restrained or performed

forthwith, may cause grave or irreparable
damage to any party or render ineffectual any
decision in favor of such party:

b)

there is "TESTIMONY under OATH, sufficient, if sustained, to

justify the Commission in issuing a temporary injunction upon
hearing after notice;"

PROCEDURE for issuance of injunction (also the

same for allegations under Art. 264)

c)

the "temporary restraining order shall be effective for no

longer than twenty (20) days and shall become void at the
expiration of said twenty (20) days."

d)

No such temporary restraining order or temporary injunction

shall be issued except on condition that

Provided, That no temporary or permanent

injunction in any case involving or growing out
of a labor dispute as defined in this Code shall
be issued
A.

"(4) That complainant has no adequate

remedy at law; and"

except after hearing the testimony of

witnesses,
with opportunity for cross-examination, in
support of the allegations of a complaint
made under oath,
and testimony in opposition thereto, if
offered, and
only after a finding of fact by the
commission, to the effect:

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- "complainant shall first file an undertaking with adequate

security in an amount to be fixed by the Commission sufficient
to recompense those enjoined for any loss, expense or
damage caused by the improvident or erroneous issuance of
such order or injunction, including all reasonable costs,
together with a reasonable attorney's fee, and expense of
defense against the order or against the granting of any
injunctive relief sought in the same proceeding and
subsequently denied by the Commission;"

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IV.

LABOR RELATIONS

The UNDERTAKING WITH ADEQUATE SECURITY

(bond)
A.

The UNDERTAKING herein mentioned shall be

understood to constitute an agreement into by the
complainant and the surety upon which an order may
be rendered in the same suit or proceeding against
said complainant and surety upon a hearing to assess
damages, of which hearing complainant and surety
shall have reasonable notice, the said complainant and
surety submitting themselves to the jurisdiction of the
Commission for that purpose.

V.

Other Remedies
But nothing herein contained shall deprive any party
having a claim or cause of action under or upon such
undertaking from electing to pursue his ordinary remedy
by suit at law or in equity:

VI.

Role of the Labor Arbiter

the prohibited or unlawful acts have been threatened and will be

committed unless restrained, or have been committed and will be
continued unless restrained (actual knowledge required)
substantial and irreparable injury to complainants property will
follow
greater injury will be inflicted upon complainant by the denial of
the relief prayed for than will be inflicted upon the defendants by
granting the relief
the complainant has no adequate remedy at law
the public officers charged with the duty to protect
complainants property are unable or unwilling to urnish adequate
protection
Effectivity: 20 days upon issuance of the order

Provided, further, that the

(1) reception of evidence for the application of a writ of
injunction may be delegated by the Commission to any of its
Labor Arbiters who shall conduct such hearings in such places
as he may determine to be accessible to the parties and their
witnesses and shall
(2) submit thereafter his recommendation to the Commission.

SUMMARY NOTES:

Definition:
Labor Injunction an order or a writ of injunction commands a
person to do or not to do a particular act. It may be positive
(mandatory) or negative (prohibitory) command.
Note: This remedy will apply only if there exists a labor dispute
Gen. Rule: An injunction CANNOT be issued in any case involving or
growing out of labor disputes. (Art. 254)
Exceptions:
1) Art. 218 (e) to enjoin or restrain any actual or threatened
commission of any or all prohibited or unlawful acts or to require
the performance of a particular act in any labor dispute which, if
not restrained or performed forthwith, may cause grave or
irreparable damage to any party or render ineffectual any decision
in favor of such party.
2) Art. 263 (g) the SOLE or Commission may seek the assistance of
law enforcement agencies to ensure compliance with this provision
as well as with such orders as he may issue to enforce the same.
(IRR, Book V, Rule XXII, Sec. 14)
3) Ilaw at Buklod ng Manggagawa v. NLRC (1991) may issue
injunction to prevent any of the prohibited acts enumerated in Art.
264
Procedure for the issuance of injunction (Art. 218, e):
1) Observance of due process (Notice and Hearing)
2) Certain factors have been established by the Commission
[enumerated below]
(The following, if followed, allows for issuance of Injunction EX
PARTE)
3) Testimony under oath to the effect that substantial and
irreparable injury to complainants property will be unavoidable
4) Complainant must first file an undertaking with adequate
security sufficient to recompense those enjoined for any loss,
expense, or damage caused by the erroneous issuance of such
order (amount determined by NLRC)
Note: NLRC may delegate to LA the reception of evidence in
injunction hearings which is accessible to the parties. The LA, then,
submits its recommendation to the NLRC.
Factors (Art. 218, e):

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Part X
ALTERNATIVES TO USE OF ECONOMIC
FORCE: CONCILIATION AND ARBITRATION
AS MODES OF LABOR DISPUTE
SETTLEMENT
1. CONCILIATION

Art. 211.
Declaration of Policy.
(e)To provide an adequate administrative machinery for the
expeditious settlement of labor or industrial disputes;
1987 Constitution. Art. XIII, Sec. 3
x x x The State shall promote the principle of shared responsibility
between workers and employers and the preferential use of
voluntary modes in settling disputes, including conciliation, and
shall enforce their mutual compliance therewith to foster industrial
peace.

Kinds of Conciliation meetings:

1) As part of the collective bargaining process (Art. 250)
2) As preventive mediation cases (IRR, Book V, Rule XXII, Sec. 1)
3) As part of disputes involving notices of strike or lockout (Art. 263,
e)

11.02 CONCILIATION AS PART OF COLLECTIVE

BARGAINING PROCESS
Art. 250
Procedure in collective bargaining.
c. If the dispute is not settled, the Board shall intervene upon
request of either or both parties or at its own initiative and
immediately call the parties to conciliation meetings. The
Board shall have the power to issue subpoenas requiring the
attendance of the parties to such meetings. It shall be the duty
of the parties to participate fully and promptly in the
conciliation meetings the Board may call;
d. During the conciliation proceedings in the Board, the parties
are prohibited from doing any act which may disrupt or
impede the early settlement of the disputes; and
e. The Board shall exert all efforts to settle disputes amicably and
encourage the parties to submit their case to a voluntary
arbitrator.
Art. 233
Privileged communication. Information and statements made at
conciliation proceedings shall be treated as privileged
communication and shall not be used as evidence in the
Commission. Conciliators and similar officials shall not testify in any
court or body regarding any matters taken up at conciliation
proceedings conducted by them.

NATIONAL

Executive Order 251, Sec. 4:

Sec. 4. Section 22 of Executive Order No. 126 is hereby amended to
read as follows:
"Sec. 22. National Conciliation and Mediation Board. A National
Conciliation and Mediation Board, herein referred to as the
"Board", is hereby created and which shall absorb the conciliation
mediation and voluntary arbitration functions of the Bureau of
Labor of Relations in accordance with Section 29 (c) hereof
xxx
A Tripartite Voluntary Arbitration Advisory Council is hereby
created and attached to the National Conciliation and Mediation

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2. ARBITRATION
11.04 IN GENERAL

11.01 POLICY

11.03
CONCILIATION
AGENCY

CONCILIATION AND MEDIATION BOARD

Board. The Tripartite Voluntary Arbitration Advisory Council shall

advise the National Conciliation Board on matters pertaining to the
promotion of voluntary arbitration as the preferred mode of
dispute settlement.

Chung Fu Industries v. CA (1992)

As early as the 1920's, this Court declared: "In the Philippines
fortunately, the attitude of the courts toward arbitration
agreements is slowly crystallizing into definite and workable form ...
The rule now is that unless the agreement is such as absolutely to
close the doors of the courts against the parties, which agreement
would be void, the courts will look with favor upon such amicable
arrangements and will only with great reluctance interfere to
anticipate or nullify the action of the arbitrator.
In practice nowadays, absent an agreement of the parties to
resolve their disputes via a particular mode, it is the regular courts
that remain to resolve such matters. However, the parties may opt
for recourse to third parties, exercising their basic freedom to
"establish such stipulations, clauses, terms and conditions as they
may deem convenient, provided they are not contrary to law,
morals, good customs, public order or public policy." In such a case,
resort to the arbitration process may be spelled out by them in a
contract in anticipation of disputes that may arise between them.
Or this may be stipulated in a submission agreement when they are
actually confronted by a dispute. Whatever be the case, such
recourse to an extrajudicial means of settlement is not intended to
completely deprive the courts of jurisdiction. In fact, the early cases
on arbitration carefully spelled out the prevailing doctrine at the
time, thus: ". . . a clause in a contract providing that all matters in
dispute between the parties shall be referred to arbitrators and to
them alone is contrary to public policy and cannot oust the courts
of jurisdiction."
But certainly, the stipulation to refer all future disputes to an
arbitrator or to submit an ongoing dispute to one is valid. Being part
of a contract between the parties, it is binding and enforceable in
court in case one of them neglects, fails or refuses to arbitrate.
Going a step further, in the event that they declare their intention
to refer their differences to arbitration first before taking court
action, this constitutes a condition precedent, such that where a
suit has been instituted prematurely, the court shall suspend the
same and the parties shall be directed forthwith to proceed to
arbitration.
A court action may likewise be proper where the arbitrator has
not been selected by the parties.
Under present law, may the parties who agree to submit their
disputes to arbitration further provide that the arbitrators' award
shall be final, unappealable and executory?
Article 2044 of the Civil Code recognizes the validity of such
stipulation, thus:
"Any stipulation that the arbitrator's award or decision shall
be final is valid, without prejudice to Articles 2038, 2039 and
2040."
Similarly, the Construction Industry Arbitration Law provides
that the arbitral award "shall be final and inappealable except
on questions of law which shall be appealable to the Supreme
Court."
The voluntary arbitrator is now mandated to render an award
or decision within 20 calendar days from the date of submission of
the dispute and such decision shall be final and executory after 10
calendar days from receipt of the copy of the award or decision by
the parties.
Where the parties agree that the decision of the arbitrator
shall be final and unappealable as in the instant case, the pivotal
inquiry is whether subject arbitration award is indeed beyond the
ambit of the court's power of judicial review.
It is stated explicitly under Art. 2044 of the Civil Code that the
finality of the arbitrators' award is not absolute and without
exceptions.
Where the conditions described in Articles 2038, 2039 and

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2040 applicable to both compromises and arbitrations are

obtaining, the arbitrators' award may be annulled or
rescinded.
Additionally, under Sections 24 and 25 of the Arbitration Law,
there are grounds for vacating, modifying or rescinding an
arbitrator's award.

If courts refuse or neglect to inquire into the factual milieu of an

arbitrator's award to determine whether it is in accordance with law
or within the scope of his authority? How may the power of judicial
review be invoked?
This is where the proper remedy is certiorari under Rule 65 the
Revised Rules of Court. It is to be borne in mind, however, that this
action will lie only where a grave abuse of discretion or an act
without or in excess of jurisdiction on the part of the voluntary
arbitrator is clearly shown.
It should be stressed too, that voluntary arbitrators, by the
nature of their functions, act in a quasi-judicial capacity. It stands to
reason, therefore, that their decisions should not be beyond the
scope of the power of judicial review of this Court.
LM Power Engineering Corp. v. Capitol Industrial Construction
Groups (2003)
In any event, the inclusion of an arbitration clause in a contract
does not ipso facto divest the courts of jurisdiction to pass upon the
findings of arbitral bodies, because the awards are still judicially
reviewable under certain conditions.
Being an inexpensive, speedy and amicable method of settling
disputes, arbitration -- along with mediation, conciliation and
negotiation -- is encouraged by the Supreme Court. Aside from
unclogging judicial dockets, arbitration also hastens the resolution
of disputes, especially of the commercial kind. It is thus regarded as
the wave of the future in international civil and commercial
disputes. Brushing aside a contractual agreement calling for
arbitration between the parties would be a step backward.
Consistent with the above-mentioned policy of encouraging
alternative dispute resolution methods, courts should liberally
construe arbitration clauses. Provided such clause is susceptible of
an interpretation that covers the asserted dispute, an order to
arbitrate should be granted. Any doubt should be resolved in favor
of arbitration.
Sec 1 of Article II of the old Rules of Procedure Governing
Construction Arbitration indeed required the submission of a
request for arbitration, as follows. However, the new Rules of
Procedure Governing Construction Arbitration has dispensed with
this requirement and recourse to the CIAC may now be availed of
whenever a contract contains a clause for the submission of a
future controversy to arbitration .
Clearly, there is no more need to file a request with the CIAC
in order to vest it with jurisdiction to decide a construction dispute.
The arbitral clause in the Agreement is a commitment on the
part of the parties to submit to arbitration the disputes covered
therein. Because that clause is binding, they are expected to abide
by it in good faith. And because it covers the dispute between the
parties in the present case, either of them may compel the other to
arbitrate.

11.05 COMPULSORY ARBITRATION

1. DEFINITION AND NATURE
COMPULSORY ARBITRATION

OF

DISPUTE

SUBJECT

TO

Compulsory Arbitration is by mandate of law. While voluntary

arbitration is by agreement of parties.

What is the type of dispute subject to compulsory

arbitration? Labor disputes in industry indispensable to the
national interest.

Who is initiating party? Initiated by the Secretary of Labor or

the President.

Take note that the NLRC has no authority to initiate. The NLRC only
comes into the picture when the secretary of labor or the President
certifies the case to them.

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REQUISITES FOR A COMPULSARY ARBITRATION (Art. 263, g):

- there exists a LABOR DISPUTE
- causing or likely to cause a STRIKE OR LOCK-OUT
- in an INDUSTRY INDISPENDSABLE TO THE NATIONAL INTERESTS
The Secretary of Labor and Employment MAY:
1) assume jurisdiction over the dispute and decide it OR
2) certify the same to the Commission (NLRC) for COMPULSORY
ARBITRATION.
EFFECT of Assumption or Certification of SOLE:
If the parties are yet to go on strike or lockout:
- AUTOMATICALLY enjoining the intended or impending strike or
lock-out as specified in the assumption or certification order.
If one has already taken place at the time of assumption or
certification,
- All striking or locked-out employees shall IMMEDIATELY RETURN
TO WORK
- AND the employer shall IMMEDIATELY resume operations and
READMIT all workers under the SAME terms and conditions
prevailing before the strike or lock-out.
Note: The Secretary of Labor and Employment or the Commission
may seek the assistance of law enforcement agencies to ensure the
compliance with this provision (Art. 263, g) as well as with such
orders as he may issue to enforce the same.
Art. 263 (g) on strikes/lockouts in medical institutions:
In labor disputes adversely affecting the continued operation of
such hospitals, clinics or medical institutions,
1) It shall be the DUTY of striking union or locking out employer to
provide and maintain an EFFECTIVE SKELETAL WORKFORCE of
medical and other health personnel,
2) Whose movement and services shall be unhampered and
unrestricted, as are necessary to insure the proper and adequate
protection of the life and health of its patients, most especially
emergency cases, for the duration of the strike or lockout.
The Secretary of Labor and Employment may IMMEDIATELY
assume, within twenty four (24) hours from knowledge of the
occurrence of such a strike or lockout, jurisdiction over the same or
certify it to the Commission for compulsory arbitration.
Sec. 22 RA 8791
Banking institutions are industries indispensable to the national
interest.
PAL v. NLRC (1989)
Proceedings on appeal before the NLRC en banc cannot be
considered as part of the arbitration proceeding.
In its broad sense, arbitration is the reference of a dispute to
an impartial third person, chosen by the parties or appointed by
statutory authority to hear and decide the case in controversy
[Chan Linte v. Law Union and Rock, Inc. Co., 42 Phil. 548 (1921)].
When the consent of one of the parties is enforced by
statutory provisions, the proceeding is referred to as compulsory
arbitration.
In labor cases, compulsory arbitration is the process of
settlement of labor disputes by a government agency which has the
authority to investigate and to make an award which is binding on
all the parties
Under the Labor Code, it is the Labor Arbiter who is clothed
with the authority to conduct compulsory arbitration on cases
involving termination disputes [Article 217, Pres. Decree No. 442, as
amended].
When the Labor Arbiter renders his decision, compulsory
arbitration is deemed terminated because by then the hearing and
determination of the controversy has ended.
GTE Directories Corp. v. GTE Directories Corp. Employees Union
(1991)
The production and publication of telephone directories,
which is the principal activity of GTE, can scarcely be described as
an industry affecting the national interest. GTE is a publishing firm

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chiefly dependent on the marketing and sale of advertising space

for its not inconsiderable revenues.
Its services, while of value, cannot be deemed to be in the
same category of such essential activities as "the generation or
distribution of energy" or those undertaken by "banks, hospitals,
and export-oriented industries."
It cannot be regarded as playing as vital a role in
communication as other mass media. The small number of
employees involved in the dispute, the employer's payment
of "P10 million in income tax alone to the Philippine
government," and the fact that the "top officers of the union
were dismissed during the conciliation process," obviously do
not suffice to make the dispute in the case at bar one
"adversely affecting the national interest."
Luzon Development Bank v. Association of Development Bank
Employees (1995)
Compulsory arbitration is a system whereby the parties to a
dispute are compelled by the government to forego their right to
strike and are compelled to accept the resolution of their dispute
through arbitration by a third party.
The essence of arbitration remains since a resolution of a
dispute is arrived at by resort to a disinterested third party whose
decision is final and binding on the parties, but in compulsory
arbitration, such a third party is normally appointed by the
government.
Trans-Asia Shipping Lines, Inc. v. CA (2004)
A cursory reading of the above provision shows that when the
Secretary of Labor assumes jurisdiction over a labor dispute in an
industry indispensable to national interest or certifies the same to
the NLRC for compulsory arbitration, such assumption or
certification shall have the effect of automatically enjoining the
intended or impending strike or lockout. Moreover, if one had
already taken place, all striking workers shall immediately return to
work and the employer shall immediately resume operations and
readmit all workers under the same terms and conditions prevailing
before the strike or lockout.
The powers granted to the Secretary of Labor under Article
263 (g) of the Labor Code have been characterized as an exercise of
the police power of the State, with the aim of promoting public
good:
When the Secretary exercises these powers, he is granted great
breadth of discretion in order to find a solution to a labor dispute.
The most obvious of these powers is the automatic enjoining of an
impending strike or lockout or the lifting thereof if one has already
taken place.
The maritime industry is indubitably imbued with national
interest. Under the circumstances, the Labor Secretary correctly
intervened in the labor dispute between the parties to this case by
certifying the same to the NLRC for compulsory arbitration.
Manila Diamond Hotel Employees Union v. CA (2004)
In the present case, there is no showing that the facts called
for payroll reinstatement as an alternative remedy. A strained
relationship between the striking employees and management is no
reason for payroll reinstatement in lieu of actual reinstatement.
Petitioner correctly points out that labor disputes naturally
involve strained relations between labor and management, and that
in most strikes, the relations between the strikers and the nonstrikers will similarly be tense. Nevertheless, the government must
still perform its function and apply the law, especially if, as in this
case, national interest is involved.
Gen. Rule: Voluntary Arbitration (Article XIII, Section 3 of the
Constitution; Art. 211)
Exception: Assumption of jurisdiction by Sec. of Labor (Art.
263, g)
Even in the exercise of his discretion under Article 236(g), the
Secretary must always keep in mind the purpose of the law. Time
and again, this Court has held that when an official by-passes the
law on the asserted ground of attaining a laudable objective, the
same will not be maintained if the intendment or purpose of the
law would be defeated.
2. RATIONALE FOR COMPULSORY ARBITRATION

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Manila Cordage Company v. CIR (1971)

The purpose of a presidential certification is nothing more
than to bring about soonest, thru arbitration by the industrial court,
a fair and just solution of the differences between an employer and
his workers regarding the terms and conditions of work in the
industry concerned which in the opinion of the President involves
the national interest, so that the damage such employer-worker
dispute might cause upon the national interest may be minimized
as much as possible, if not totally averted by avoiding the stoppage
of work as a result of a strike or lock out or any lagging of the
activities of the industry or the possibility of these contingencies
which might cause detriment to such national interest.
This is the foundation of that court's jurisdiction in what may
be termed as a certification case.
Naturally, if the employer and the workers are able to arrive at
an amicable settlement by free and voluntary collective bargaining
preferably thru a labor union, before the court is able to use its
good offices, it is but in consonance with the objective of the
Industrial Peace Act to promote unionism and free collective
bargaining that the court should step out of the picture and declare
its function in the premises at an end, except as it may become
necessary to determine whether or not the agreement forged by
the parties is not contrary to law, morals or public policy.
National Federation of Labor v. MOLE (1983)
"The very nature of a return-to-work order issued in a certified
case lends itself to no other construction.
The certification attests to the urgency of the matter,
affecting as it does an industry indispensable to the national
interest. The order is issued in the exercise of the court's
compulsory power of arbitration, and therefore must be
obeyed until set aside.
To say that its effectivity must await affirmance on a motion
for reconsideration is not only to emasculate it but indeed to
defeat its import, for by then the deadline fixed for the return
to work would, in the ordinary course, have already passed
and hence can no longer be affirmed insofar as the time
element is concerned."
The very purpose of a compulsory arbitration, is to call a halt
to a pending strike by requiring that the status quo prior to its
declaration be preserved.
Phil. School of Business Administration v. Noriel(1988)
The Solicitor General was correct when he stated that by
assuming jurisdiction over the labor dispute, the Acting Secretary of
Labor merely provided for a formal forum for the parties to
ventilate their positions with the end in view of settling the dispute.
As contended by the SolGen, "there can be no such
unconstitutional application (of BP 227) because all that Minister
has done is to certify the labor dispute for arbitration and
thereafter personally assume jurisdiction over it. He has not
rendered any decision; he has not favored one party over the other.

LABOR DISPUTE of NATIONAL INTEREST (determined by Sec. of

Labor or President)
Sec. of Labor may assume jurisdiction over the case
and resolve it
Sec. of Labor may certify the case to the NLRC for
compulsory arbitration
3. PROCESS INITIATION CERTIFICATION OF DISPUTE
1) Initiating Party
a) Secretary DOLE
PLDT v. Manggagawa ng Komunikasyon sa Pilipinas (2005)
When the Secretary exercises the powers granted by Article
263(g) of the Labor Code, he is, indeed, granted great breadth of
discretion. However, the application of this power is not without
limitation, lest the Secretary would be above the law.
As Article 263(g) is clear and unequivocal in stating that ALL
striking or locked out employees shall immediately return to work
and the employer shall immediately resume operations and readmit
ALL workers under the same terms and conditions prevailing before

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the strike or lockout, then the unmistakable mandate must be

followed by the Secretary.
b)

President

President under the law, and this Court will not interfere in, much
less curtail, the exercise of that prerogative.
4. ARBITRATION AGENCIES

Union of Filipro Employees v. Nestle Philippines (1990)

The assumption of jurisdiction by the Secretary of Labor over
labor disputes causing or likely to cause a strike or lockout in an
industry indispensable to the national interest is in the nature of a
POLICE POWER measure.
The compelling consideration of the Secretary's assumption of
jurisdiction is the fact that
a prolonged strike or lockout is inimical to the national
economy and
thus, the need to implement some measures to suppress any
act which will hinder the company's essential productions is
indispensable for the promotion of the COMMON GOOD.

St. Scholasticas College v. Torres (1992)

A return to work order is immediately executory notwithstanding
the filing of a motion for reconsideration.
An issue that is not part of the dispute may be ruled on a
compulsory arbitration case if it was submitted by the parties.
The issue on whether respondent SECRETARY has the power to
assume jurisdiction over a labor dispute and its incidental
controversies, causing or likely to cause a strike or lockout in an
industry indispensable to the national interest, was already settled
in International Pharmaceuticals, Inc. Secretary of Labor and
Employment. Therein, We ruled that:
". . . [T]he Secretary was explicitly granted by Article
263 (g) of the Labor Code the authority to assume
jurisdiction over a labor dispute causing or likely to
cause a strike or lockout in an industry indispensable
to the national interest, and decide the same
accordingly. Necessarily, this authority to assume
jurisdictional over the said labor dispute must include
and extend to all questions and controversies arising
therefrom, including cases over which the Labor
Arbiter has exclusive jurisdiction."

Corollary, the NLRC was thereby charged with the task of

implementing the certification order for compulsory arbitration.
As the implementing body, its authority did not include the
power to amend the Secretary's order.
When sitting in a compulsory arbitration certified to by the
Secretary of Labor, the NLRC is:
- not sitting as a judicial court
- but as an administrative body charged with the duty to implement
the order of the Secretary.
Intl Pharmaceuticals Inc. v. Secretary of DOLE (1992)
In the present case, the Secretary was explicitly granted by Art.
263(g) of the Labor Code the authority to assume jurisdiction over a
labor dispute causing or likely to cause a strike or lockout in an
industry indispensable to the national interest, and decide the same
accordingly.
Necessarily, this authority to assume jurisdiction over the said labor
dispute must include and extend to
- all questions and controversies arising therefrom,
- including cases over which the labor arbiter has exclusive
jurisdiction.
Moreover, Art. 217 is not without, but contemplates,
exceptions thereto. This is evident from the opening proviso therein
reading "(e)xcept as otherwise provided under this Code . . ."
Plainly, Article 263(g) was meant to make both the Secretary (or the
various regional directors) and the labor arbiters share jurisdiction,
subject to certain conditions.
Otherwise, the Secretary would not be able to effectively and
efficiently dispose of the primary dispute. To hold the contrary may
even lead to the absurd and undesirable result wherein the
Secretary and the labor arbiter concerned may have diametrically
opposed rulings.
c)

Office of the President 263 (g)

Feati University v. Feati University Faculty Club (1966)

"It thus appears that when in the opinion of the President a
labor dispute exists in an industry indispensable to national interest
and he certifies it to the Court of Industrial Relations the latter
acquires jurisdiction to act thereon in the manner provided by law.
Thus the court may take either of the following courses:
a. it may issue an order forbidding employees to strike or
the employer to lockout its employees, or, failing in this,
b. it may issue an order fixing the terms and conditions of
employment. It has no other alternative. It can throw the
case out in the assumption that the certification was
erroneous.
". . . The fact, however, is that because of the strike declared
by the members of the minority union which threatens a major
industry the President deemed it wise to certify the controversy to
the Court of Industrial Relations for adjudication.
What matters is that by virtue of the certification made by the
President the case was placed under the jurisdiction of said court."
To certify a labor dispute to the CIR is the prerogative of the

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The submission of an incidental issue of a labor dispute, in

assumption and/or certification cases, to the Secretary of Labor and
Employment for his resolution is thus one of the instances referred
to whereby the latter may exercise concurrent jurisdiction together
with the Labor Arbiters.
Effect of non-compliance with return to work order
Non-compliance with the certification order of the Sec of
Labor or a return to work order of the Commission shall be
considered an illegal act committed in the course of the strike or
lookout and shall authorize the Sec. of Labor or the Commission, as
the case may be, to enforce the same under pain or loss of
employment status or entitlement to full employment benefits
from the locking-out employer or backwages, damages and/or
other positive and/or affirmative reliefs, even to criminal
prosecution against the liable parties . . ."
It must be strictly complied with even during the pendency of
any petition questioning its validity (Union of Filipro Employees v.
Nestle' Philippines, Inc., supra)

After all, the assumption and/or certification order is

issued in the exercise of respondent SECRETARY's
compulsive power of arbitration and, until set aside, must
therefore be immediately complied with.
The rationale for this rule is explained in University of Sto.
Tomas v. NLRC,

"To say that the return-to-work order effectivity must

wait affirmance in a motion for reconsideration is not
only to emasculate it but indeed to defeat its import, for
by then the deadline fixed for the return to work would,
in the ordinary course, have already passed and hence
can no longer be affirmed insofar as the time element is
concerned."
The respective liabilities of striking union officers and
members who failed to immediately comply with the return-towork order is outlined in Art. 264 of the Labor Code which provides
that any declaration of a strike or lockout after the Secretary of
Labor and Employment has assumed jurisdiction over the labor
dispute is considered an illegal act. Any worker or union officer who
knowingly participates in a strike defying a return-to-work order
may, consequently, "be declared to have lost his employment
status."
5. EFFECT OF CERTIFICATION AND VIOLATION OF ORDER
Effect of Assumption/Certification Order pursuant to Art. 263 (g):
1) Strike/Lockout automatically enjoined

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2) Striking/Locked Out employees shall immediately return to work

3) Employer shall resume operations and readmit all workers
Effect of Non-Compliance with Assumption/Certification Order:
For this purpose the contending parties are STRICTLY
ENJOINED to comply with such orders, prohibitions and/or
injunctions as are issued by the Secretary of Labor and Employment
or the Commission, under pain of immediate disciplinary action,
including dismissal or loss of employment status or payment by the
locking-out employer of back wages, damages and other affirmative
relief, even criminal prosecution against either or both of them.
(Art. 263, g)
Sarmiento v. Tuico (1988)
The law itself provides that "such assumption or certification
shall have the effect of automatically enjoining the intended or
impending strike. If one has already taken place at the time of
assumption or certification, all striking or locked out employees
shall immediately return to work and the employer shall
immediately resume operations and readmit all workers under the
same terms and conditions prevailing before the strike or lockout."
It must be stressed that while one purpose of the return-towork order is to protect the workers who might otherwise be
locked out by the employer for threatening or waging the strike, the
more important reason is to prevent impairment of the national
interest in case the operations of the company are disrupted by a
refusal of the strikers to return to work as directed.
It is also important to emphasize that the return-to-work order
not so much confers a right as it imposes a duty; and while as a
right it may be waived, it must be discharged as a duty even against
the worker's will.
Not a violation of right against involuntary servitude
So imperative is the order in fact that it is not even considered
violative of the right against involuntary servitude, as this Court
held in Kaisahan ng Mga Manggagawa sa Kahoy v. Gotamco
Sawmills. The worker can of course give up his work, thus severing
his ties with the company, if he does not want to obey the order;
but the order must be obeyed if he wants to retain his work even if
his inclination is to strike.
One other point that must be underscored is that the returnto-work order is issued pending the determination of the legality or
illegality of the strike. It is not correct to say that it may be enforced
only if the strike is legal and may be disregarded if the strike is
illegal, for the purpose precisely is to maintain the status quo while
the determination is being made.
Telefunken Semi-Conductor Employees Union v. CA (2000)
It is clear from Art. 263 that the moment the Secretary of
Labor assumes jurisdiction over a labor dispute in an industry
indispensable to national interest, such assumption shall have the
effect of automatically enjoining the intended or impending strike.
The rationale of this prohibition is that once jurisdiction over
the labor dispute has been properly acquired by the competent
authority, that jurisdiction should not be interfered with by the
application of the coercive processes of a strike.
Manila Hotel Employees Assn. v. Manila Hotel Corp. (2007)
Returning to work in this situation is not a matter of option or
voluntariness but of obligation. The worker must return to his job
together with his co-workers so the operations of the company can
be resumed and it can continue serving the public and promoting its
interest. This extraordinary authority given to the Secretary of Labor
is aimed at arriving at a peaceful and speedy solution to labor
disputes, without jeopardizing national interests. Regardless
therefore of their motives, or the validity of their claims, the striking
workers must cease and/or desist from any and all acts that tend to,
or undermine this authority of the Secretary of Labor, once an
assumption and/or certification order is issued. They cannot, for
instance, ignore return-to-work orders, citing unfair labor practices
on the part of the company, to justify their action.

or not, the return to work order is an integral part of the

assumption of jurisidiction. (Sarmiento v. Tuico)
2) A return to work order does not violate the Involuntary Servitude
clause (Sarmiento v. Tuico)
3) A return-to-work order must be complied with as a matter of
duty not just a right.
4) A return-to-work order may be appealed but even pending
appeal the return-to-work order must still be followed.
5) According to the Bagiou Colleges case: If there is doubt, take note
of the duty to comply. One merely has to file a motion for
clarification.
TAKE NOTE: The extent of authority of the compulsory arbitration
are those that may be necessary to settle the dispute.
6. AWARDS AND ORDERS
Art. 263
Strikes, picketing and lockouts.
i. The Secretary of Labor and Employment, the Commission or the
voluntary arbitrator shall decide or resolve the dispute, as the case
may be. The decision of the President, the Secretary of Labor and
Employment, the Commission or the voluntary arbitrator shall be
final and executory ten (10) calendar days after receipt thereof by
the parties.
Art. 277
i. To ensure speedy labor justice, the periods provided in this Code
within which decisions or resolutions of labor relations cases or
matters should be rendered shall be mandatory. For this purpose, a
case or matter shall be deemed submitted for decision or resolution
upon the filing of the last pleading or memorandum required by the
rules of the Commission or by the Commission itself, or the Labor
Arbiter, or the Director of the Bureau of Labor Relations or MedArbiter,
or
the
Regional
Director.
Upon expiration of the corresponding period, a certification stating
why a decision or resolution has not been rendered within the said
period shall be issued forthwith by the Chairman of the
Commission, the Executive Labor Arbiter, or the Director of the
Bureau of Labor Relations or Med-Arbiter, or the Regional Director,
as the case may be, and a copy thereof served upon the parties.
Despite the expiration of the applicable mandatory period, the
aforesaid officials shall, without prejudice to any liability which may
have been incurred as a consequence thereof, see to it that the
case or matter shall be decided or resolved without any further
delay.
Nissan Motors Phils., Inc. v. Sec. of Labor (2006)
The company is therefore right in dismissing the subject Union
officers in accordance with Article 264 (a) of the Labor Code, for
participating in illegal strike in defiance of the assumption of
jurisdiction order by the Labor Secretary.
However, the members of the Union should not be as severely
punished. Dismissal is a harsh penalty as surely they were only
following orders from their officers. Besides, there is no evidence
that they engaged or participated in the commission of illegal
activities during the said strike. They should thus be reinstated to
their former positions, but without backwages. Their action which
resulted in prejudice to the Company cannot however go
unpunished. For the injury that they have collectively inflicted on
the company, they should be disciplined. A one month suspension is
a reasonable disciplinary measure which should be deemed served
during the time they out of their jobs (sic).
Telefunken Semi-Conductor Employees Union v. CA (2000)
SOLE OFFICE OF THE WRIT OF CERTIORARI IS THE CORRECTION OF
ERRORS OF JURISDICTION INCLUDING THE COMMISSION OF ABUSE
OF DISCRETION AMOUNTING TO LACK OF JURISDICTION
In Meralco v. The Honorable Secretary of Labor Leonardo A.
Quisumbing. we ruled that:

Disini: RULES REGARDING RETURN TO WORK ORDER

1) The moment there is Presidential (or by Secretary of Labor)
assumption of jurisdiction, whether a return to work order is issued

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The extent of judicial review over the Secretary of

Labors arbitral award is not limited to a
determination of grave abuse in the manner of the
secretarys exercise of his statutory powers. This

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Court is entitled to, and must in the exercise of its

judicial power review the substance of the
Secretarys award when grave abuse of discretion is
alleged to exist in the award, i.e., in the appreciation
of and the conclusions the Secretary drew from the
evidence presented.
However, this Courts review of the substance does not
mean a re-calibration of the evidence presented before the DOLE
but only a determination of whether the Secretary of Labors award
passed the test of reasonableness when he arrived at his
conclusions made thereon. The main thrust of a petition for
certiorari under Rule 65 of the Rules of Court is only the correction
of errors of jurisdiction including the commission of grave abuse of
discretion amounting to lack or excess of jurisdiction.

However, for this Court to properly exercise the power of

judicial review over a decision of an administrative
agency, such as the DOLE, it must first be shown that the
tribunal, board or officer exercising judicial or quasijudicial functions has indeed acted without or in excess of
its or his jurisdiction, and that there is no appeal, or any
plain, speedy and adequate remedy in the ordinary
course of law. In the absence of any showing of lack of
jurisdiction or grave abuse tantamount to lack or excess
of jurisdiction, judicial review may not be had over an
administrative agencys decision. We have gone over the
records of the case at bar and we see no cogent basis to
hold that the Secretary of Labor has abused his
discretion.

The grant of plenary powers to the Secretary of Labor under

Art. 263(g) makes it incumbent for him to bring about soonest, a
fair and just solution to the differences between the employer and
the employees so that the damage such labor dispute might cause
upon the national interest may be minimized as much as possible, if
not totally averted, by avoiding stoppage of work or any lagging of
the activities of the industry or the possibility of these contingencies
which might cause detriment to such national interest.
On Backwages
Since, as correctly found by the Secretary of Labor, the strikers
were not illegally dismissed, the COMPANY is under no obligation to
pay backwages to them. It is simply inconsistent, nay, absurd, to
award backwages when there is no finding of illegal dismissal
(Filflex Industrial and Manufacturing Corporation, 286 SCRA 245)
when the record shows that the striking workers did not comply
with lawful orders for them to return to work during said periods of
time.

In fact, the Secretary of Labor observed that while it was

obligatory on the part of both parties to restore, in the
meantime, the status quo obtaining in the workplace,
the same was not possible considering the strikers had
defied the return-to-work Order of this Office. With such
blatant disregard by the strikers of official edicts ordering
their temporary reinstatement, there is no basis to
award them backwages corresponding to said time
frames. Otherwise, they will recover something they
have not or could not have earned by their willful
defiance of the return-to-work order, a patently
incongruous and unjust situation (Santos v. National
Labor Relations Commission, 154 SCRA 166).
On Award of Financial Assistance or Separation pay
The same view holds with respect to the award of financial
assistance or separation pay. The assumption for granting financial
assistance or separation pay, which is, that there is an illegally
dismissed employee and that illegally dismissed employee would
otherwise have been entitled to reinstatement, is not present in the
case at bench.

We are of course aware that financial assistance may be

allowed as a measure of social justice in exceptional
circumstances and as an equitable concession. We are
likewise mindful that financial assistance is allowed only
in those instances where the employee is validly
dismissed for causes other than serious misconduct or
those reflecting on his moral character
o
However, the attendant facts show that such

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exceptional circumstances do not obtain in the

instant cases to warrant the grant of financial
assistance to the striking workers.
To our mind, the strikers open and willful
defiance of the assumption order dated
September 16, 1995 constitute serious
misconduct as well as reflective of their moral
character, hence, granting financial assistance
to them is not and cannot be justified

7. OPTION SUBMIT CASE VOLUNTARY ARBITRATION AFTER

CERTIFICATION
Art. 263
Strikes, picketing and lockouts.
(h) Before or at any stage of the compulsory arbitration process, the
parties may opt to submit their dispute to voluntary arbitration.
8. COMPULSORY ARBITRATION AND LABOR RIGHTS
Philtread Workers Union v. Confessor (1997)
Petitioners contend that Article 263 (g) of the Labor
Code violates the workers right to strike which is provided for
by Section 3, Article XIII of the Constitution. The assailed
order of the Secretary of Labor, which enjoins the strike, is an
utter interference of the workers right to self-organization,
to manage their own affairs, activities and programs, and
therefore is illegal.
Held: The petition is devoid of merit. On the issue of the
constitutionality of Article 263 (g), the same had already been
resolved in Union of Filipro Employees vs. Nestle Philippines, Inc., to
wit:

In the case at bar, no law has ever been passed by

Congress expressly repealing Articles 263 and 264 of the
Labor Code. Neither may the 1987 Constitution be
considered to have impliedly repealed the said Articles
considering that there is no showing that said articles are
inconsistent with the said Constitution. Moreover, no
court has ever declared that the said articles are
inconsistent with the 1987 Constitution.

On the contrary, the continued validity and operation of

Articles 263 and 264 of the Labor Code has been
recognized by no less than the Congress of the
Philippines when the latter enacted into law R.A. 6715,
otherwise known as Herrera law, Section 27 of which
amended paragraphs (g) and (l) of Article 263 of the
Labor Code.

At any rate, it must be noted that Articles 263 (g) and 264
of the Labor Code have been enacted pursuant to the
police power of the State, which has been defined as the
power inherent in a government to enact laws, within
constitutional limits, to promote the order, safety, health,
morals and general welfare of society (People vs. Vera
Reyes, 67 Phil. 190).
Article 263 (g) of the Labor Code does not violate the workers
constitutional right to strike. The foregoing article clearly does not
interfere with the workers right to strike but merely regulates it,
when in the exercise of such right, national interests will be
affected.

The rights granted by the Constitution are not absolute.

They are still subject to control and limitation to ensure

that they are not exercised arbitrarily. The interests of
both the employers and employees are intended to be
protected and not one of them is given undue
preference.
The Secretary of Labor acts to maintain industrial peace. Thus,
his certification for compulsory arbitration is not intended to
impede the workers right to strike but to obtain a speedy
settlement of the dispute.

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11.05 VOLUNTARY ARBITRATION

4. ARBITRABLE ISSUES

1. DEFINED
Manila Central Line Corp. v. manila Central Line Free Workers
Union (1998)
Despite the fact that it agreed with the union to submit their
dispute to the labor arbiter for arbitration, petitioner questions the
jurisdiction of the labor arbiter to render the decision in question.
Petitioner contends that the policy of the law now is to encourage
resort to conciliation and voluntary arbitration as Art 250(e) of the
Labor Code provides.
This is what the parties did in this case. After the Board failed
to resolve the bargaining deadlock between parties, the union filed
a petition for compulsory arbitration in the Arbitration Branch of
the NLRC. Petitioner joined the petition and the case was
submitted for decision.

Although the unions petition was for compulsory

arbitration, the subsequent agreement of petitioner to
submit the matter for arbitration in effect made the
arbitration a voluntary one.
Moreover, petitioner must be deemed to be estopped from
questioning the authority of Labor Arbiter, to act as voluntary
arbitrator and render a decision in this case. Petitioner agreed
together with the union, to refer their dispute for arbitration to
him. It was only after the decision was rendered that petitioner
raised the question of lack of jurisdiction.
2. BASIS FOR VOLUNTARY ARBITRATION AND RATIONALE
1987 Constitution. Art. XIII, Sec. 3
x x x The State shall promote the principle of shared responsibility
between workers and employers and the preferential use of
voluntary modes in settling disputes, including conciliation, and
shall enforce their mutual compliance therewith to foster industrial
peace.
3. PROCESS ENCOURAGEMENT/PROMOTION
Establishing Machinery Dispute Settlement Collective Bargaining
Agreement and Time Frame
Art. 260
Grievance Machinery and Voluntary Arbitration.
The parties to a Collective Bargaining Agreement shall include
therein provisions that will ensure the mutual observance of its
terms and conditions. They shall establish a machinery for the
adjustment and resolution of grievances arising from the
interpretation of their Collective Bargaining Agreement and those
arising from the interpretation or enforcement of company
personnel policies.
All grievances submitted to the grievance machinery which are not
settled within 7 month calendar days from the date of its submission
shall automatically be referred to voluntary arbitration prescribed in
the Collective Bargaining Agreement.
xxx
Executive Order 251, Sec. 4:
Sec. 4. Section 22 of Executive Order No. 126 is hereby amended to
read as follows:
"Sec. 22. National Conciliation and Mediation Board. A National
Conciliation and Mediation Board, herein referred to as the
"Board", is hereby created and which shall absorb the conciliation
mediation and voluntary arbitration functions of the Bureau of
Labor of Relations in accordance with Section 29 (c) hereof
xxx
A Tripartite Voluntary Arbitration Advisory Council is hereby
created and attached to the National Conciliation and Mediation
Board. The Tripartite Voluntary Arbitration Advisory Council shall
advise the National Conciliation Board on matters pertaining to the
promotion of voluntary arbitration as the preferred mode of
dispute settlement.

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Art. 261
Disputes covered in Voluntary Arbitration:
Gen. Rule (Art. 261):
- Those unresolved grievances arising from the interpretation or
implementation of the CBA;
- Also, those arising from the interpretation or enforcement of
company personnel policies
- Gross violations of CBA provision
Excpeption (Art. 262):
- If parties agree, VA may hear and decide all other labor disputes
including ULP and bargaining deadlock

For purposes of this article, gross violations of CBA

shall mean flagrant and/ or malicious refusal to
comply with the economic provisions of such
agreement.

Rights Disputes v. Interest Disputes

Rights disputes:
Claim for violation of a specific right (Arising
from a contract, ex: CBA or company policies).
Voluntary Arbitrator has original and exclusive
jurisdiction over this matters.
Interest Disputes: These ponders on the questions what should be
included in the CBA. Strictly speaking, the
parties may choose a voluntary arbitrator to
decide on terms and conditions of
employment, but that is impracticable because
it will be a value judgment of the arbitrator
and not the parties.
5. ARBITRATOR
SELECTION
How Voluntary Arbitrator is selected (Art. 260):
1) As stated in CBA (or selection procedure of a VA), preferably from
a list of qualified VAs accredited by NCMB
2) If parties fail to select, the Board (NCMB) shall select VA pursuant
to selection procedure as stated in CBA
Art. 260
x x x. For this purpose, parties to a Collective Bargaining Agreement
shall name and designate in advance a Voluntary Arbitrator or panel
of Voluntary Arbitrators,

or include in the agreement the procedure for the

selection of such Voluntary Arbitrator or panel of
voluntary Arbitrators, preferably from the listing of
qualified Voluntary Arbitrators duly accredited by
the Board.

In case the parties fail to select a Voluntary

Arbitrators, the Board shall designate the Voluntary
Arbitrators, as may be necessary, pursuant to the
selection procedure agreed upon in the Collective
Bargaining Agreement, which shall act with the
same force and effect as if the Arbitrator or panel of
Arbitrators has been selected by the parties as
prescribed.
Manila Central Line Free Workers Union v. Manila Central Line
Corp. (1998)
Indeed, the Labor Code formerly provided that if the parties in
collective bargaining fail to reach an agreement, the Bureau of
Labor Relations should call them to conciliation meetings and, if its
efforts were not successful, certify the dispute to a labor arbiter for
compulsory arbitrarion. But this was changed by R.A.No. 6715
which took effect on March 21, 1989. Art 250(e) of the Labor Code
now provides that if effects of conciliation fail, the Board shall
encourage the parties to submit their case to a voluntary
arbitrator.
This is what the parties did in this case. After the Board failed
to resolve the bargaining deadlock between parties, the union filed
a petition for compulsory arbitration in the Arbitration Branch of
the NLRC. Petitioner joined the petition and the case was
submitted for decision. Although the unions petition was for

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compulsory arbitration, the subsequent agreement of petitioner

to submit the matter for arbitration in effect made the arbitration a
voluntary one. The essence of voluntary arbitration, after all is that
it is by agreement of the parties, rather than compulsion of law,
that a matter is submitted for arbitration. It does not matter that
the person chosen as arbitrator is a labor arbiter who, under Art
217 of the Labor Code, is charged with the compulsory arbitration
of certain labor cases. There is nothing in the law that prohibits
these labor arbiters from also acting as voluntary arbitrators as long
as the parties agree to have him hear and decide their dispute.

any of these categories - should then be considered as a

special area of interest governed by a specific provision
of law.

Ludo and Luym Corp v. Saornido (2003)

Arguments:
Petitioner contends that the appellate court gravely erred
when it upheld the award of benefits which were beyond the terms
of submission agreement. Petitioner asserts that the arbitrator
must confine its adjudication to those issues submitted by the
parties for arbitration, which in this case is the sole issue of the date
of regularization of the workers. Hence, the award of benefits by
JURISDICTION
the arbitrator was done in excess of jurisdiction.
On the matter of the benefits, respondents argue that the
Disputes covered in Voluntary Arbitration:
arbitrator is empowered to award the assailed benefits because
Gen. Rule (Art. 261):
notwithstanding the sole issue of the date of regularization,
- Those unresolved grievances arising from the interpretation or implementation
of companion
the CBA; issues on reliefs and remedies are deemed
standard
- Also, those arising from the interpretation or enforcement of company personnel
policies
incorporated. Otherwise, the whole arbitration process would be
- Gross violations of CBA provision
rendered purely academic and the law creating it inutile.
Excpeption (Art. 262):
- If parties agree, VA may hear and decide all other labor disputes including
ULP and bargaining deadlock
Resolution:
Gross Violations of CBA, defined (Art. 261):
flagrant and/or malicious refusal to comply with the economic
provisions of the CBA

Viviero v. Court of appeals (2000)

Termination disputes fall within the jurisdiction of the Labor Arbiter:
Private respondents attempt to justify the conferment of
jurisdiction over the case on the Voluntary Arbitrator on the ground
that the issue involves the proper interpretation and
implementation of the Grievance Procedure found in the CBA.
They point out that when petitioner sought the assistance of
his Union to avail of the grievance machinery, he in effect
submitted himself to the procedure set forth in the CBA regarding
submission of unresolved grievances to a Voluntary Arbitrator.
Held: The argument is untenable. The case is primarily a
termination dispute.

It is clear from the claim/assistance request form

submitted by petitioner to AMOSUP that he was
challenging the legality of his dismissal for lack of cause
and lack of due process.

The issue of whether there was proper interpretation and

implementation of the CBA provisions comes into play
only because the grievance procedure provided for in the
CBA was not observed after he sought his Unions
assistance in contesting his termination.

Thus, the question to be resolved necessarily springs

from the primary issue of whether there was a valid
termination; without this, then there would be no reason
to invoke the need to interpret and implement the CBA
provisions properly.
A possible exception:
In San Miguel Corp. v. National Labor Relations Commission
this Court held that the phrase "all other labor disputes" may
include termination disputes provided that the agreement between
the Union and the Company states "in unequivocal language that
[the parties] conform to the submission of termination disputes and
unfair labor practices to voluntary arbitration."

Ergo, it is not sufficient to merely say that parties to the

CBA agree on the principle that "all disputes" should first
be submitted to a Voluntary Arbitrator. There is a need
for an express stipulation in the CBA that illegal
termination disputes should be resolved by a Voluntary
Arbitrator or Panel of Voluntary Arbitrators, since the
same fall within a special class of disputes that are
generally within the exclusive original jurisdiction of
Labor Arbiters by express provision of law.

Absent such express stipulation, the phrase "all disputes"

should be construed as limited to the areas of conflict
traditionally within the jurisdiction of Voluntary
Arbitrators, i.e., disputes relating to contractinterpretation,
contract-implementation,
or
interpretation or enforcement of company personnel
policies. Illegal termination disputes - not falling within

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The jurisdiction of Voluntary Arbitrator or Panel of Voluntary

Arbitrators and Labor Arbiters is clearly defined and specifically
delineated in the Labor Code (Art. 217 for LA, Art. 261-262 for VA).
While a voluntary arbitrator is not part of the governmental
unit or labor departments personnel, said arbitrator renders
arbitration services provided for under labor laws. Generally, the
arbitrator is expected to decide only those questions expressly
delineated by the submission agreement.

Nevertheless, the arbitrator can assume that he has the

necessary power to make a final settlement since
arbitration is the final resort for the adjudication of
disputes.

In one case, the SC stressed that xxx the Voluntary

Arbitrator had plenary jurisdiction and authority to
interpret the agreement to arbitrate and to determine
the scope of his own authority subject only, in a proper
case, to the certiorari jurisdiction of this Court. The
Arbitrator, as already indicated, viewed his authority as
embracing not merely the determination of the abstract
question of whether or not a performance bonus was to
be granted but also, in the affirmative case, the amount
thereof.
By the same token, the issue of regularization should be
viewed as two-tiered issue. While the submission agreement
mentioned only the determination of the date or regularization,
law and jurisprudence give the voluntary arbitrator enough
leeway of authority as well as adequate prerogative to accomplish
the reason for which the law on voluntary arbitration was created
speedy labor justice. It bears stressing that the underlying reason
why this case arose is to settle, once and for all, the ultimate
question of whether respondent employees are entitled to higher
benefits. To require them to file another action for payment of
such benefits would certainly undermine labor proceedings and
contravene the constitutional mandate providing full protection to
labor.
PROCEDURE
Art. 262-A
Procedures The voluntary Arbitrators or panel of Voluntary Arbitrators shall
have the power to hold hearings, receive evidences and take
whatever action is necessary to resolve the issue or issues subject
of dispute, including efforts to effect a voluntary settlement
between parties.
All parties to the dispute shall be entitled to attend the arbitration
proceedings. The attendance of any third party or the exclusion of
any witness from the proceedings shall be determined by the
Voluntary Arbitrator or panel of Voluntary Arbitrators. Hearing may
be adjourned for a cause or upon agreement by the parties.
Unless the parties agreed otherwise, it shall be mandatory for the
Voluntary Arbitrators or panel of Voluntary Arbitrators to render an
award or decision within twenty ?(20) calendar days from the date
of submission of the dispute to voluntary arbitration.

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The award or decision shall contain the facts and the law on which
it is based. It shall be final and executory after ten (10) calendar
days from receipt of the copy of the award or its decision by the
parties. Upon motion of any interested party, the Voluntary
Arbitrator or panel of Voluntary Arbitrators or the Labor Arbiter in
the region where the movant resides, in case of the absence or
incapacity of the voluntary arbitrator or panel of voluntary
arbitrators for any reason, may issue a writ of execution requiring
wither the sheriff of the Commission or regular Courts or any public
official whom the parties may designate in the submission
agreement to execute the final decision, order, or award.
NATURE OF OFFICE AND FUNCTION
United Kimberly-Clark Employees Union v. Kimberly-Clark Phils.
Inc. (2006)
As a general proposition, an arbitrator is confined to the
interpretation and application of the collective bargaining
agreement. He does not sit to dispense his own brand of industrial
justice: his award is legitimate only in so far as it draws its essence
from the CBA.
The VA is not merely to rely on the cold and cryptic words on
the face of the CBA but is mandated to discover the intention of the
parties.
Nippon Paint Employees Union v. CA (2004)
In the case of Luzon Development Bank vs. Association of
Luzon Development Bank Employees, this Court ruled that a
voluntary arbitrator partakes of the nature of a quasi-judicial
instrumentality and is within the ambit of Section 9(3) of the
Judiciary Reorganization Act, as amended. As such, the decisions of
a voluntary arbitrator fall within the exclusive appellate jurisdiction
of the Court of Appeals.
6. AWARDS AND ORDERS
Art. 262-A
xxx
The award or decision shall contain the facts and the law on which
it is based. It shall be final and executory after ten (10) calendar
days from receipt of the copy of the award or its decision by the
parties.
Upon motion of any interested party,

the Voluntary Arbitrator or panel of Voluntary

Arbitrators or the Labor Arbiter in the region where
the movant resides, in case of the absence or
incapacity of the voluntary arbitrator or panel of
voluntary arbitrators for any reason,

may issue a writ of execution requiring the sheriff of

the Commission or regular Courts or any public
official whom the parties may designate in the
submission agreement to execute the final decision,
order, or award.
Davao Integrated v. Abarquez (1993)
Petitioner-company's objection to the authority of the
Voluntary Arbitrator to direct the commutation of the unenjoyed
portion of the sick leave with pay benefits of intermittent workers
in his decision is misplaced. Article 261 of the Labor Code is clear.

The questioned directive of the herein public respondent

is the necessary consequence of the exercise of his
arbitral power as Voluntary Arbitrator under Article 261
of the Labor Code "to hear and decide all unresolved
grievances arising from the interpretation or
implementation of the Collective Bargaining Agreement."

We, therefore, find that no grave abuse of discretion was

committed by public respondent in issuing the award
(decision). Moreover, his interpretation of Sections 1 and
3, Article VIII of the 1989 CBA cannot be faulted with and
is absolutely correct.
Citibank Employees Union v. MOLE (1980)
The award of the arbitrator in this case is not to be equated
with a judicial decision.
In effect, when in relation to a controversy as to working
conditions, which necessarily include the amount of wages,
allowances, bonuses, overtime pay, holiday pay, etc., the parties

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submit their differences to arbitration, they do not seek any judicial

pronouncement technically as such:

they are merely asking the arbitrator to fix for them what
would be the fair and just condition or term regarding the
matter in dispute that should govern further collective
bargaining relations between them.

Stated differently, the arbitrator's award when stipulated

by the parties to be conclusive becomes part and parcel
of the CBA. Viewed in this sense, which We are fully
convinced is most consistent with the principles of
collective bargaining, the subsequent or supervening
facts referred to by the Solicitor General consisting of
acts of none other than the respondent Minister may not
be invoked to alter, modify, reform, much less abrogate,
the new terms, so to speak, of the collective bargaining
inserted by virtue of the award of the arbitrator. To do
otherwise would violate the prescription of the
Constitution against impairment of the obligation of
contracts.
We hold that regardless of any law anterior or posterior to the
Arbitrator's award, the collective bargaining agreement in this case
has been correspondingly amended in a manner that is unalterable,
immovable and immutable like the rock of Gibraltar, during the
lifetime of the said collective bargaining agreement.
See: Ludo and Luym v. Saornido, supra
7. FINALITY AND EXECUTION OF AWARDS
Art. 262-A: Award or decision of the voluntary
arbitrator shall be final and executory after 10 days from
receipt of the copy of the award or decision by the
parties.
Imperial Textile Miles, etc. Calica (1992)
When the parties submitted their grievance to arbitration,
they expressly agreed that the decision of the Voluntary Arbitrator
would be final, executory and unappealable.

In fact, even without this stipulation, the first decision

had already become so by virtue of Article 263 of the
Labor Code making voluntary arbitration awards or
decisions final and executory.
In the case of The Consolidated Bank & Trust Corporation
(SOLIDBANK) v. Bureau of Labor Relations, et al., this Court held
that the Voluntary Arbitrator lost jurisdiction over the case
submitted to him the moment he rendered his decision. Therefore,
he could no longer entertain a motion for reconsideration of the
decision for its reversal or modification. Thus:

By modifying the original award, respondent arbitrator

exceeded his authority as such, a fact he was well aware
of, as shown by his previous Resolution of Inhibition
wherein he refused to act on the Union's motion for
reconsideration of the award or decision.
Coca-Cola v. Coca-Cola (2005)
It is a hornbook rule that once a judgment has become final
and executory, it may no longer be modified in any respect, even if
the modification is meant to be an erroneous conclusion of fact or
law, and regardless of whether the modification is attempted to be
made by the court rendering it or by the highest court of the land,
as what remains to be done is the purely ministerial enforcement or
execution of the judgment.
The doctrine of finality of judgment is grounded on
fundamental considerations of public policy and sound practice that
at the risk of occasional errors, the judgment of adjudicating bodies
must become final and executory on some definite date fixed by
law. In the more recent case of DBP v. NLRC, the Supreme Court
reiterated that the doctrine of immutability of final judgment is
adhered to by necessity notwithstanding occasional errors that may
result thereby, since litigations must somehow come to an end for
otherwise, it would be even more intolerable than the wrong and
injustice it is designed to correct.
Rule VII, Section 1 of the Procedural Guidelines in the
Conduct of Voluntary Arbitration Proceedings provides the
key. Therein, what constitutes the voluntary arbitrators decision
(and, by extension, that of the Panel of voluntary arbitrators) is
defined with precision, to wit:

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Section 1. Decision Award. -- The final arbitral disposition of

issue/s submitted to voluntary arbitration is the Decision. The
disposition may take the form of a dismissal of a claim or grant of
specific remedy, either by way of prohibition of particular acts or
specific performance of particular acts. In the latter case the
decision is called an Award.
In herein case, the Decision of the Panel was in the form of a
dismissal of petitioners complaint. Naturally, this dismissal was
contained in the main decision and not in the dissenting
opinion. Thus, under Section 6, Rule VII of the same guidelines
implementing Article 262-A of the Labor Code, this Decision, as a
matter of course, would become final and executory after ten (10)
calendar days from receipt of copies of the decision by the parties
even without receipt of the dissenting opinion unless, in the
meantime, a motion for reconsideration or a petition for review to
the Court of Appeals under Rule 43 of the Rules of Court is filed
within the same 10-day period.
8. APPEAL
Luzon Development Bank v. Assoc of Luzon Devt Employees
(1995)
The Jurisdiction conferred by law on a voluntary arbitrator or a
panel of such arbitrators is quite limited compared to the original
jurisdiction of the labor arbiter and the appellate jurisdiction of the
NLRC for that matter.
The state of our present law relating to voluntary arbitration
provides that "the award or decision of the Voluntary Arbitrator x x
x shall be final and executory after ten (10) calendar days from
receipt of the copy of the award or decision by the parties,"

while the "decision, awards, or orders of the Labor

Arbiter are final and executory unless appealed to the
Commission by any or both parties within ten (10)
calendar days from receipt of such decisions, awards, or
orders."

Hence, while there is an express mode of appeal from the

decision of a labor arbiter, Republic Act No. 6715 is silent
with respect to an appeal from the decision of a
voluntary arbitrator.
Assuming arguendo that the voluntary arbitrator or the panel
of voluntary arbitrators may not strictly be considered as a quasijudicial agency, board or commission, still both he and the panel are
comprehended within the concept of a "quasi-judicial
instrumentality."
A fortiori, the decision or award of the voluntary arbitrator or
panel of arbitrators should likewise be appealable to the Court of
Appeals, in line with the procedure outlined in Revised
Administrative Circular No. 1-95, just like those of the quasi-judicial
agencies, boards and commissions enumerated therein.
This would be in furtherance of, and consistent with, the
original purpose of Circular No. 1-91 to provide a uniform
procedure for the appellate review of adjudications of all quasijudicial entities18 not expressly excepted from the coverage of Sec.
9 of B.P. 129 by either the Constitution or another statute.
In effect, this equates the award or decision of the voluntary
arbitrator with that of the regional trial court. Consequently, in a
petition for certiorari from that award or decision, the Court of
Appeals must be deemed to have concurrent jurisdiction with the
Supreme Court. As a matter of policy, this Court shall henceforth
remand to the Court of Appeals petitions of this nature for proper
disposition.
Unicraft Industries Intl v. CA (2001)
Both parties acknowledge that the proceedings before the
Voluntary Arbitrator have not been completed.

Despite this, the Court of Appeals rendered the assailed

resolution ordering the immediate execution of the
award of separation pay and attorneys fees.

Prior to that, Voluntary Arbitrator Calipay filed a

comment contending that he had lost jurisdiction over
the case after he rendered judgment. While under the
law decisions of voluntary arbitrators are accorded
finality, the same may still be subject to review, such as
here where there was a violation of petitioners right to
due process and to be heard.

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The right of due process is fundamental in our legal system

and we adhere to this principle not for reasons of convenience or
merely to comply with technical formalities but because of a strong
conviction that every man must have his day in court.
At this juncture, it may not be amiss to restate our previous
reminder to labor tribunals in the weighing of the rights and
interest of employers and employees, viz:

While the intendment of our laws is to favor the

employee, it in no way implies that the employer is
not entitled to due process. For a tribunal such as
the NLRC to wantonly disregard the employers
constitutional right to be heard is a matter that
cause great concern to the Court. Such an action
can only result in public mistrust of our entire legal
system, and we strongly remind the NLRC of their
duty to uphold an inspire confidence in the same.

The Court of Appeals, thus, committed grave abuse of

discretion amounting to lack of jurisdiction when it ordered the
immediate execution of the Voluntary Arbitrators award of
separation pay and attorneys fees, notwithstanding that the same
was null and void for violation of petitioners right to due process of
law.
9. COSTS
Art. 262-B. Cost of Voluntary Arbitration and Voluntary Arbitrators
fee.
The parties to a Collective Bargaining Agreement shall provide
therein a proportionate sharing scheme on the cost of the voluntary
arbitration including the Voluntary Arbitrators fee.
The fixing of the fee of the Voluntary Arbitrators, whether
shouldered wholly by the parties or subsidized by the special
voluntary arbitration fund, shall take into account the following
factors:
a. Nature of the case
b. Time consumed in hearing the case
c. Professional Standing of the Voluntary Arbitrator
d. Capacity to Pay of the parties.

SUMMARY NOTES
Definition:
CONCILIATION process whereby the parties come
together to settle labor disputes.
ARBITRATION process whereby an impartial third
party is either chosen by the parties themselves
(voluntary) or chosen for them (compulsory) to aid in the
settlement of the labor dispute.
Agencies involved:
1) Conciliation Proceedings NCMB (Art. 212, c)
2) Arbitration Proceedings
if compulsory, by Labor Arbiter (initiated by
Sec. of Labor)
if voluntary, by a Voluntary Arbitrator (VA) or a
panel of VAs
Kinds of Conciliation meetings:
1) As part of the collective bargaining process (Art. 250)
2) As preventive mediation cases (IRR, Book V, Rule XXII,
Sec. 1)
3) As part of disputes involving notices of strike or lockout
(Art. 263, e)
Kinds of Arbitration Proceedings:
1) Compulsary (Art. 263, g) process of settlement of
labor disputes by a government agency which has the
authority to investigate and to make an award which is
binding on all the parties (PAL v. NLRC, 1989)
2) Voluntary (Art. 260) contractual proceedings where
the parties to a labor dispute select a judge (arbitrator) of
their own choice and by consent, submit their controversy
to him for determination.

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Compulsary Arbitration:
1) Applies to labor disputes in industries indispensable to
national interest
2) Initiated by either the Secretary of Labor / the
President of the Philippines
3) Under the jurisdiction of Secretary of Labor / NLRC
(only if certified by the Secretary of Labor to NLRC)
REQUISITES FOR A COMPULSARY ARBITRATION
(Art. 263, g):
- there exists a LABOR DISPUTE
- causing or likely to cause a STRIKE/LOCK-OUT
- in an INDUSTRY INDISPENDSABLE TO THE
NATIONAL INTEREST
The Secretary of Labor and Employment MAY:
1) assume jurisdiction over the dispute and decide it OR
2) certify the same to the Commission (NLRC) for
COMPULSORY ARBITRATION.
When sitting in a compulsory arbitration certified to by
the Secretary of Labor, the NLRC is:
- not sitting as a judicial court
- but as an administrative body charged with the duty to
implement the order of the Secretary.
(Union of Filipro Employees v. Nestle Philippines, 1990)
Effect of Assumption/Certification Order pursuant
to Art. 263 (g):
1) Strike/Lockout automatically enjoined
2) Striking/Locked Out employees shall immediately
return to work
3) Employer shall resume operations and readmit all
workers
Effect of Non-Compliance with
Assumption/Certification Order:
Immediate disciplinary action, including dismissal or
loss of employment status or payment by the locking-out
employer of back wages, damages and other affirmative
relief, even criminal prosecution against either or both of
them. (Art. 263, g)
Disputes covered in Voluntary Arbitration:
Gen. Rule (Art. 261):
- Those unresolved grievances arising from the
interpretation or implementation of the CBA;
- Also, those arising from the interpretation or
enforcement of company personnel policies
- Gross violations of CBA provision
Excpeption (Art. 262):
- If parties agree, VA may hear and decide all other labor
disputes including ULP and bargaining deadlock
Gross Violations of CBA, defined (Art. 261):
flagrant and/or malicious refusal to comply with the
economic provisions of the CBA
Grievance Machinery/Voluntary Arbitration
Procedure:
1) Regarding interpretation or implementation of the CBA,
the dispute is referred to the Grievance Machinery
Note: Procedure is pre-determined by the parties
2) If unresolved after 7 days, the dispute is put up for
Voluntary Arbitration.
Note: Must be agreed upon by the parties first
How Voluntary Arbitrator is selected (Art. 260):
1) As stated in CBA (or selection procedure of a VA),
preferably from a list of qualified VAs accredited by NCMB
2) If parties fail to select, the Board (NCMB) shall select
VA pursuant to selection procedure as stated in CBA
As per Art. 262-A:
Gen. Rule: VA must render an award or decision on a
labor dispute within 20 days from submission to
arbitration
Exception: Parties agree otherwise

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a charter certificate indicating
the establishment of the local
chapter. The chapter shall
acquire legal personality only
for purposes of filing a petition
for certification election from
the date it was issued a charter
certificate.

ARTICLE 234 (LABOR CODE) vis--vis RA 9481

Article 234 LC
Requirements of registration.

As amended by RA 9481
(May 2007)
Requirements of Registration.

Any
applicant
labor
organization, association or
group of unions or workers shall
acquire legal personality and
shall be entitled to the rights
and privileges granted by law to
legitimate labor organizations
upon issuance of the certificate
of registration based on the
following requirements.

A federation, national union or

industry or trade union center
or an independent union shall
acquire legal personality and
shall be entitled to the rights
and privileges granted by law to
legitimate labor organizations
upon issuance of the certificate
of registration based on the
following requirements:

a.

Fifty pesos (P50.00)

registration
fee;

b.

The names of its

officers,
their
addresses,
the
principal address of
the
labor
organization,
the
minutes
of
the
organizational
meetings and the list
of the workers who
participated in such
meetings;

c.

d.

e.

The names of all its

members comprising
at
least
twenty
percent (20%) of all
the employees in the
bargaining unit where
it seeks to operate;
(As amended by
Executive Order No.
111, December 24,
1986)
If the applicant union
has been in existence
for one or more
years, copies of its
annual
financial
reports;
and
Four (4) copies of the
constitution and bylaws of the applicant
union, minutes of its
adoption
or
ratification, and the
list of the members
who participated in
it. (As amended by
Batas
Pambansa
Bilang 130, August
21, 1981)

The chapter shall be entitled to

all other rights and privileges of
a legitimate labor organization
only upon the submission of the
following documents in addition
to its charter certificate:
(a)

The names of the

chapter's
officers,
their
addresses,
and
the
principal office of the
chapter;
and
(b)
The
chapter's
constitution and bylaws: Provided,
That where the chapter's
constitution and by-laws
are the same as that of
the federation or the
national union, this fact
shall be indicated
accordingly.

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

The names of its

officers,
their
addresses, the
principal address of the
labor organization,
the minutes of the
organizational meetings
and the list of the
workers who participated
in such meetings;

(c)

In case the applicant

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

(d)

If the applicant union

has been in existence
for one or more
years, copies of its
annual
financial
reports; and

(e)

Four copies of the

constitution and bylaws of the applicant
union, minutes of its
adoption
or
ratification, and the
list of the members
who participated in it.

The
additional
supporting
requirements shall be certified
under oath by the secretary or
treasurer of the chapter and
attested by its president.

Article 238
Cancellation of registration;
appeal.
The certificate of registration of
any
legitimate
labor
organization, whether national
or local, shall be cancelled by
the Bureau if it has reason to
believe, after due hearing, that
the said labor organization no
longer meets one or more of
the
requirements
herein
prescribed.

The certificate of registration of

any
legitimate
labor
organization, whether national
or local, may be cancelled by the
Bureau, after due hearing, only
on the grounds specified in
Article 239 hereof.

[The Bureau upon approval of

this Code shall immediately
institute
cancellation
proceedings and take such
other steps as may be necessary
to restructure all existing
registered labor organizations in
accordance with the objective
envisioned above.] (Repealed
by Executive Order No. 111,
December 24, 1986)

NEW PROVISION
ART. 234-A.
Chartering
and Creation of a Local Chapter.
A duly registered federation
or national union may directly
create a local chapter by issuing

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As amended
Cancellation of Registration.

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NEW PROVISION
ART. 238-A.
Effect of a
Petition for Cancellation of
Registration. A petition for
cancellation of union
registration shall not suspend
the proceedings for certification

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LABOR LAW II

LABOR RELATIONS
election nor shall it prevent the
filing of a petition for
certification election.
In case of cancellation, nothing
herein shall restrict the right of
the union to seek just and
equitable remedies in the
appropriate courts.

Article 239

As amended

Grounds for cancellation of

union registration.

Grounds for Cancellation of Union

Registration.

The following shall constitute

grounds for cancellation of union
registration:

The following may constitute grounds

for cancellation of union registration:

a.

b.

c.

d.

e.

f.

Misrepresentation,
false statement or fraud
in connection with the
adoption or ratification
of the constitution and
by-laws or amendments
thereto, the minutes of
ratification and the list
of members who took
part in the ratification;
Failure to submit the
documents mentioned
in the preceding
paragraph within thirty
(30) days from adoption
or ratification of the
constitution and bylaws or amendments
thereto;

(a)

g.

Asking for or accepting

attorneys fees or
negotiation fees from
employers;

h.

Other than for

mandatory activities
under this Code,
checking off special
assessments or any
other fees without duly
signed individual
written authorizations
of the members;

Misrepresentation, false
statement or fraud in
connection with the i.
adoption or ratification
of the constitution and
by-laws or amendments
thereto, the minutes of
ratification, and the list
of members who took j.
part in the ratification;

(b) Misrepresentation, false

statements or fraud in
connection with the
election of officers,
minutes of the election
of officers, and the list of
voters;
(c)Voluntary dissolution by
the members.

Misrepresentation,
false statements or
fraud in connection
with the election of
officers, minutes of the
election of officers, the
list of voters, or failure
to submit these
documents together
with the list of the
newly
elected/appointed
officers and their postal
addresses within thirty
(30) days from election;

Failure to submit list of

individual members to
the Bureau once a year
or whenever required
by the Bureau; and
Failure to comply with
requirements under
Articles 237 and 238.

1) NEW PROVISION
ART. 239-A.
Voluntary
Cancellation of Registration. The
registration of a legitimate labor
organization may be cancelled by the
organization itself: Provided, That at
least two-thirds, of its general
membership votes, in a meeting duly
called for that purpose to dissolve the
organization: Provided, further, That
an application to cancel registration is
thereafter submitted by the board of
the organization, attested to by the
president thereof.

NEW PROVISION
ART. 242-A.
Reportorial
Requirements. The following
are documents required to be
submitted to the Bureau by the
legitimate labor organization
concerned:

Failure to submit the

annual financial report
to the Bureau within
thirty (30) days after
the closing of every
fiscal year and
misrepresentation, false
entries or fraud in the
preparation of the
financial report itself;

(a)

Acting as a labor
contractor or engaging
in the "cabo" system, or
otherwise engaging in
any activity prohibited
by law;

(b)

Entering into collective

100% UP LAW

bargaining agreements
which provide terms
and conditions of
employment below
minimum standards
established by law;

UP BAROPS 2008

Its constitution and bylaws, or amendments

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

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LABOR LAW II

LABOR RELATIONS
(c)

(d)

days from election;

Its
annual
financial
report within thirty (30)
days after the close of
every fiscal year; and
Its list of members at
least once a year or
whenever required by
the Bureau.

Failure to comply with the above

requirements shall not be a ground
for
cancellation
of
union
registration but shall subject the
erring officers or members to
suspension,
expulsion
from
membership, or any appropriate
penalty.

Article 245

As amended

Ineligibility of managerial
employees to join any labor
organization; right of

Ineligibility of Managerial
Employees to Join any Labor
Organization;
Right
of
Supervisory Employees.

Managerial employees are not

eligible to join, assist or form
any
labor
organization.
Supervisory employees shall not
be eligible for membership in a
labor organization of the rankand-file employees but may
join, assist or form separate
labor organizations of their
own. (As amended by Section
18, Republic Act No. 6715,
March 21, 1989)

Managerial employees are not

eligible to join, assist or form
any
labor
organization.
Supervisory employees shall not
be eligible for membership in
the collective bargaining unit of
the rank-and-file employees but
may join, assist or form separate
collective
bargaining
units
and/or
legitimate
labor
organizations of their own. The
rank and file union and the
supervisors' union operating
within the same establishment
may join the same federation or
national union.

consent of at least twenty-five

percent (25%) of all the
employees in the bargaining
unit to ascertain the will of the
employees in the appropriate
bargaining unit. To have a valid
election, at least a majority of
all eligible voters in the unit
must have cast their votes. The
labor union receiving the
majority of the valid votes cast
shall be certified as the
exclusive bargaining agent of all
the workers in the unit. When
an election which provides for
three or more choices results in
no choice receiving a majority of
the valid votes cast, a run-off
election shall be conducted
between the labor unions
receiving the two highest
number of votes: Provided, that
the total number of votes for all
contending unions is at least
fifty percent (50%) of the
number of votes cast.
At the expiration of the freedom
period, the employer shall
continue to recognize the
majority
status
of
the
incumbent bargaining agent
where
no
petition
for
certification election is filed. (As
amended by Section 23,
Republic Act No. 6715, March
21, 1989)

At the expiration of the freedom

period, the employer shall
continue to recognize the
majority
status
of
the
incumbent bargaining agent
where
no
petition
for
certification election is filed.

NEW PROVISION
ART. 245-A.
Effect
of
Inclusion as Members of
Employees
Outside
the
Bargaining Unit. The
inclusion as union members of
employees
outside
the
bargaining unit shall not be a
ground for the cancellation of
the registration of the union.
Said
employees
are
automatically deemed removed
from the list of membership of
said union.

Article 256 LC

As amended

Representation
issue
in
organized establishments.

Representation
Issue
in
Organized Establishments.

In organized establishments,
when a verified petition
questioning the majority status
of the incumbent bargaining
agent is filed before the
Department of Labor and
Employment within the sixtyday period before the expiration
of the collective bargaining
agreement, the Med-Arbiter
shall automatically order an
election by secret ballot when
the
verified
petition
is
supported by the written

In organized establishments,
when a verified petition
questioning the majority status
of the incumbent bargaining
agent is filed by any legitimate
labor organization including a
national union or federation
which has already issued a
charter certificate to its local
chapter participating in the
certification election or a local
chapter which has been issued a
charter certificate by the
national union or federation

100% UP LAW

before the Department of Labor

and Employment within the
sixty (60)-day period before the
expiration of the collective
bargaining agreement, the MedArbiter shall automatically order
an election by secret ballot
when the verified petition is
supported by the written
consent of at least twenty-five
percent (25%) of all the
employees in the bargaining
unit to ascertain the will of the
employees in the appropriate
bargaining unit. To have a valid
election, at least a majority of
all eligible voters in the unit
must have cast their votes. The
labor union receiving the
majority of the valid votes cast
shall be certified as the
exclusive bargaining agent of all
the workers in the unit. When
an election which provides for
three or more choices results in
no choice receiving a majority of
the valid votes cast, a run-off
election shall be conducted
between the labor unions
receiving the two highest
number of votes: Provided, That
the total number of votes for all
contending unions is at least
fifty percent (50%) of the
number of votes cast. In cases
where the petition was filed by
a national union or federation,
it shall not be required to
disclose the names of the local
chapter's officers and members.

Article 257

As Amended

Petitions in unorganized
establishments.

Petitions in Unorganized
Establishments.

In any establishment where

there is no certified bargaining
agent, a certification election
shall
automatically
be
conducted by the Med-Arbiter
upon the filing of a petition by a
legitimate labor organization.
(As amended by Section 24,
Republic Act No. 6715, March
21, 1989)

In any establishment where

there is no certified bargaining
agent, a certification election
shall
automatically
be
conducted by the Med-Arbiter
upon the filing of a petition by
any
legitimate
labor
organization,
including
a
national union or federation
which has already issued a
charter certificate to its
local/chapter participating in
the certification election or a
local/chapter which has been
issued a charter certificate by
the
national
union
or
federation. In cases where the
petition was filed by a national
union or federation, it shall not
be required to disclose the
names of the local chapter's
officers and members.

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LABOR LAW II

LABOR RELATIONS

NEW PROVISION
ART. 258-A.
Employer
as Bystander. In all cases,
whether the petition for
certification election is filed by
an employer or a legitimate
labor
organization,
the
employer
shall
not
be
considered a party thereto with
a concomitant right to oppose a
petition
for
certification
election.
The
employer's
participation
in
such
proceedings shall be limited to:
(1) being notified or informed of
petitions of such nature; and (2)
submitting the list of employees
during
the
pre-election
conference should the MedArbiter act favorably on the
petition

Article 213
National Labor
Commission.

Relations

There shall be a National Labor

Relations Commission which
shall be attached to the
Department of Labor and
Employment for program and
policy
coordination
only,
composed of a Chairman and
fourteen (14) Members.
Five (5) members each shall be
chosen from among the
nominees of the workers and
employers
organizations,
respectively. The Chairman and
the four (4) remaining members
shall come from the public
sector, with the latter to be
chosen from among the
recommendees of the Secretary
of Labor and Employment.
Upon assumption into office,
the members nominated by the
workers
and
employers
organizations
shall
divest
themselves of any affiliation
with or interest in the
federation or association to
which they belong.
The Commission may sit en
banc or in five (5) divisions, each
composed
of
three
(3)
members. Subject to the
penultimate sentence of this
paragraph, the Commission
shall sit en banc only for
purposes of promulgating rules
and regulations governing the
hearing and disposition of cases
before any of its divisions and
regional
branches,
and
formulating policies affecting its
administration and operations.

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As amended
National Labor
Commission.

Relations

There shall be a National Labor

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

The Commission shall exercise

its adjudicatory and all other
powers, functions, and duties
through its divisions. Of the five
(5) divisions, the first, second
and third divisions shall handle
cases coming from the National
Capital Region and the parts of
Luzon; and the fourth and fifth
divisions, cases from the Visayas
and Mindanao, respectively;
Provided that the Commission
sitting en banc may, on
temporary or emergency basis,
allow
cases
within
the
jurisdiction of any division to be
heard and decided by any other
division whose docket allows
the additional workload and
such transfer will not expose
litigants
to
unnecessary
additional
expense.
The
divisions of the Commission
shall have exclusive appellate
jurisdiction over cases within
their
respective
territorial
jurisdictions. [As amended by
Republic Act No. 7700].
The concurrence of two (2)
Commissioners of a division
shall be necessary for the
pronouncement of judgment or
resolution.
Whenever
the
required membership in a
division is not complete and the
concurrence
of
two
(2)
commissioners to arrive at a
judgment or resolution cannot
be obtained, the Chairman shall
designate such number of
additional Commissioners from
the other divisions as may be
necessary.
The conclusions of a division on
any case submitted to it for
decision shall be reached in
consultation before the case is
assigned to a member for the
writing of the opinion. It shall be
mandatory for the division to
meet for purposes of the
consultation ordained herein. A
certification to this effect signed
by the Presiding Commissioner
of the division shall be issued
and a copy thereof attached to
the record of the case and
served upon the parties.
The Chairman shall be the
Presiding Commissioner of the
first division and the four (4)
other members from the public
sector shall be the Presiding
Commissioners of the second,
third, fourth and fifth divisions,
respectively. In case of the
effective absence or incapacity
of the Chairman, the Presiding
Commissioner of the second
division shall be the Acting
Chairman.
The Chairman, aided by the

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eight (8) divisions, the first,

second, third, fourth, fifth and
sixth divisions shall handle cases
coming from the National
Capital Region and other parts
of Luzon, and the seventh and
eighth divisions, cases from
Visayas
and
Mindanao,
respectively: Provided, That the
Commission sitting en banc
may,
on
temporary
or
emergency basis, allow cases
within the jurisdiction of any
division to be heard and
decided by any other division
whose docket allows the
additional workload and such
transfer will not expose litigants
to
unnecessary
additional
expense. The divisions of the
Commission shall have exclusive
appellate jurisdiction over cases
within
their
respective
territorial jurisdiction.
The concurrence of two (2)
Commissioners of a division
shall be necessary for the
pronouncement of judgment or
resolution.
Whenever
the
required membership in a
division is not complete and the
concurrence
of
two
(2)
Commissioners to arrive at a
judgment or resolution cannot
be obtained, the Chairman shall
designate such number of
additional Commissioners from
the other divisions as may be
necessary.
The conclusions of a division on
any case submitted to it for
decision shall be reached in
consultation before the case is
assigned to a member for the
writing of the opinion. It shall be
mandatory for the division to
meet for purposes of the
consultation ordained herein. A
certification to this effect signed
by the Presiding Commissioner
of the division shall be issued,
and a copy thereof attached to
the record of the case and
served upon the parties.
The Chairman shall be the
Presiding Commissioner of the
first division, and the seven (7)
other members from the public
sector shall be the Presiding
Commissioners of the second,
third, fourth, fifth, sixth,
seventh and eighth divisions,
respectively. In case of the
effective absence or incapacity
of the Chairman, the Presiding
Commissioner of the second
division shall be the Acting
Chairman.
The Chairman, aided by the
Executive
Clerk
of
the
Commission,
shall
have
exclusive
administrative
supervision
over
the
Commission and its regional

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LABOR LAW II
Executive
Clerk
of
the
Commission,
shall
have
administrative supervision over
the Commission and its regional
branches and all its personnel,
including the Executive Labor
Arbiters and Labor Arbiters.
The Commission, when sitting
en banc shall be assisted by the
same Executive Clerk and, when
acting thru its Divisions, by said
Executive Clerks for the second,
third, fourth and fifth Divisions,
respectively, in the performance
of such similar or equivalent
functions and duties as are
discharged by the Clerk of Court
and Deputy Clerks of Court of
the Court of Appeals. (As
amended by Section 5, Republic
Act No. 6715, March 21, 1989)

LABOR RELATIONS
branches and all its personnel,
including the Labor Arbiters.
The Commission, when sitting
en banc, shall be assisted by
the same Executive Clerk, and,
when acting thru its Divisions,
by said Executive Clerk for its
first division and seven (7)
other Deputy Executive Clerks
for the second, third, fourth,
fifth, sixth, seventh and eighth
Divisions, respectively, in the
performance of such similar or
equivalent functions and duties
as are discharged by the Clerk
of Court and Deputy Clerks of
Court of the Court of Appeals.
The Commission and its eight
(8) divisions shall be assisted by
the Commission Attorneys in its
appellate and adjudicatory
functions whose term shall be
coterminous
with
the
Commissioners with whom they
are assigned. The Commission
Attorneys shall be members of
the Philippine Bar with at least
one (1) year experience or
exposure in the field of labormanagement relations. They
shall receive annual salaries and
shall be entitled to the same
allowances and benefits as
those falling under Salary Grade
twenty-six (SG 26). There shall
be as many Commission
Attorneys as may be necessary
for the effective and efficient
operation of the Commission
but in no case more than three
(3) assigned to the Office of the
Chairman
and
each
Commissioner.
No Labor Arbiter shall be
assigned to perform the
functions of the Commission
Attorney nor detailed to the
office of any Commissioner."

Article 214

As Amended

Headquarters, Branches and

Provincial Extension Units.

Headquarters, Branches and

Provincial Extension Units.

The Commission and its First,

Second and Third divisions shall
have their main offices in
Metropolitan Manila, and the
Fourth and Fifth divisions in the
Cities of Cebu and Cagayan de
Oro,
respectively.
The
Commission shall establish as
many regional branches as
there are regional offices of the
Department of Labor and
Employment,
sub-regional
branches or provincial extension
units. There shall be as many
Labor Arbiters as may be
necessary for the effective and
efficient operation of the
Commission. Each regional

The Commission and its first,

second, third, fourth, fifth and
sixth divisions shall have their
main offices in Metropolitan
Manila, and the seventh and
eighth divisions in the cities of
Cebu and Cagayan de Oro,
respectively. The Commission
shall establish as many regional
branches as there are regional
offices of the Department of
Labor and Employment, subregional branches or provincial
extension units. There shall be
as many Labor Arbiters as may
be necessary for the effective
and efficient operation of the
Commission.

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branch shall be headed by an

Executive Labor Arbiter. (As
amended by Section 6, Republic
Act No. 6715, March 21, 1989)

Article 215
Appointment
Qualifications.

As Amended
and

The Chairman and other

Commissioners
shall
be
members of the Philippine Bar
and must have engaged in the
practice of law in the Philippines
for at least fifteen (15) years,
with at least five (5) years
experience or exposure in the
field of labor-management
relations, and shall preferably
be residents of the region
where they are to hold office.
The Executive Labor Arbiters
and Labor Arbiters shall likewise
be members of the Philippine
Bar and must have been
engaged in the practice of law in
the Philippines for at least seven
(7) years, with at least three (3)
years experience or exposure in
the field of labor-management
relations: Provided, However,
that incumbent Executive Labor
Arbiters and Labor Arbiters who
have been engaged in the
practice of law for at least five
(5) years may be considered as
already qualified for purposes of
reappointment as such under
this Act. The Chairman and the
other
Commissioners,
the
Executive Labor Arbiters and
Labor Arbiters shall hold office
during good behavior until they
reach the age of sixty-five years,
unless sooner removed for
cause as provided by law or
become
incapacitated
to
discharge the duties of their
office.
The Chairman, the division
Presiding Commissioners and
other Commissioners shall be
appointed by the President,
subject to confirmation by the
Commission on Appointments.
Appointment to any vacancy
shall come from the nominees
of the sector which nominated
the predecessor. The Executive
Labor Arbiters and Labor
Arbiters shall also be appointed
by
the
President,
upon
recommendation
of
the
Secretary
of
Labor
and
Employment and shall be
subject to the Civil Service Law,

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Appointment
Qualifications.

and

The Chairman and other

Commissioners
shall
be
members of the Philippine Bar
and must have been engaged in
the practice of law in the
Philippines for at least fifteen
(15) years, with at least five (5)
years experience or exposure in
the field of labor-management
relations, and shall preferably
be residents of the region
where they shall hold office.
The Labor Arbiters shall likewise
be members of the Philippine
Bar and must have been
engaged in the practice of law in
the Philippines for at least ten
(10) years, with at least five (5)
years experience or exposure in
the field of labor-management
relations.
The Chairman, the other
Commissioners and the Labor
Arbiters shall hold office during
good behavior until they reach
the age of sixty-five (65) years,
unless sooner removed for
cause as provided by law or
become
incapacitated
to
discharge the duties of their
office: Provided, however, That
the President of the Republic of
the Philippines may extend the
services of the Commissioners
and Labor Arbiters up to the
maximum age of seventy (70)
years
upon
the
recommendation
of
the
Commission en banc.
The Chairman, the Division
Presiding Commissioners and
other Commissioners shall all be
appointed by the President.
Appointment to any vacancy in
a specific division shall come
only from the nominees of the
sector which nominated the
predecessor. The Labor Arbiters
shall also be appointed by the
President,
upon
recommendation
of
the
Commission en banc to a
specific
arbitration
branch
preferably in the region where
they are residents, and shall be
subject to the Civil Service Law,
rules and regulations: Provided,
That the Labor Arbiters who are
presently holding office in the

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LABOR LAW II
rules and regulations.
The Secretary of Labor and
Employment
shall,
in
consultation with the Chairman
of the Commission, appoint the
staff and employees of the
Commission and its regional
branches as the needs of the
service may require, subject to
the Civil Service Law, rules and
regulations, and upgrade their
current salaries, benefits and
other
emoluments
in
accordance with law. (As
amended by Section 7, Republic
Act No. 6715, March 21, 1989)

Article 216

LABOR RELATIONS
region where they are residents
shall be deemed appointed
thereat.
The
Chairman
of
the
Commission shall appoint the
staff and employees of the
Commission and its regional
branches as the needs of the
service may require, subject to
the Civil Service Law, rules and
regulations, and upgrade their
current salaries, benefits and
other
emoluments
in
accordance with law.

As Amended

Salaries, benefits and other

emoluments.

Salaries,
Benefits
Emoluments.

The Chairman and members of

the Commission shall receive an
annual salary at least equivalent
to, and be entitled to the same
allowances and benefits as
those of the Presiding Justice
and Associate Justices of the
Court of Appeals, respectively.
The Executive Labor Arbiters
shall receive an annual salary at
least equivalent to that of an
Assistant Regional Director of
the Department of Labor and
Employment and shall be
entitled to the same allowances
and benefits as that of a
Regional Director of said
Department. The Labor Arbiters
shall receive an annual salary at
least equivalent to, and be
entitled to the same allowances
and benefits as that of an
Assistant Regional Director of
the Department of Labor and
Employment. In no case,
however, shall the provision of
this Article result in the
diminution of existing salaries,
allowances and benefits of the
aforementioned officials. (As
amended by Section 8, Republic
Act No. 6715, March 21, 1989)

The Chairman and members of

the Commission shall have the
same rank, receive an annual
salary equivalent to, and be
entitled to the same allowances,
retirement and benefits as
those of the Presiding Justice
and Associate Justices of the
Court of Appeals, respectively.
Labor Arbiters shall have the
same rank, receive an annual
salary equivalent to and be
entitled to the same allowances,
retirement and other benefits
and privileges as those of the
Judges of the Regional Trial
Courts. In no case, however,
shall the provision of this Article
result in the diminution of the
existing salaries, allowances and
benefits of the aforementioned
officials

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and

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Page 61 of 62

Special Thanks to:

Office of the College Secretary

UP College of Law
UP Law Center
UP College of Law Library
UP Law BarOps 2007

Subject Committee

Res Rosario * Mike Rivera *Grace Pastorfide * Suzy Ojeda

Information Management
Committee

Chino Baybay [Head] * Simoun Salinas [Deputy] * Rania Joya

[Design & Lay-out] * Ludee Pulido [Documentations]