Question 1 Parties, however, may still opt to submit their case to
the SOLE, if they both agree to do so. In this case,
Dear Team ……,
The Secretary of the DOLE certified the strike in a
tire manufacturing company to the NLRC for
compulsory arbitration and ordered the striking
employees to report back to work. The Union refused
to obey, prompting the company to file a complaint
for illegal strike against defiant officers and members
of the Union.
If you were the counsel for the Union officers and
members, what defense/s may you interpose?
Mr. JMMarquez
Answer:
Dear JMMARQUEZ,
Thank you for seeking our help with this matter.
Considering the facts of the case, here is what we
advise the Union Officers and members:
The defense of lack of jurisdiction: What is involved
in the case is a strike in a tire manufacturing
company. A tire manufacturing company is not
considered to be imbued with public interest. This is
in line with Department Order 40-H-13 of the
Department of Labor and Employment:
SECTION 16. INDUSTRIES INDISPENSABLE TO
THE NATIONAL INTEREST. - FOR THE
GUIDANCE OF THE WORKERS AND
EMPLOYERS IN THE FILING OF PETITION FOR
ASSUMPTION OF JURISDICTION, THE
FOLLOWING INDUSTRIES/SERVICES ARE
HEREBY RECOGNIZED AS DEEMED
INDISPENSABLE TO THE NATIONAL
INTEREST:
A. HOSPITAL SECTOR;
B. ELECTRIC POWER INDUSTRY;
C. WATER SUPPLY SERVICES, TO EXCLUDE
SMALL WATER
SUPPLY SERVICES SUCH AS BOTTLING AND
REFILLING
STATIONS;
D. AIR TRAFFIC CONTROL;
E. SUCH OTHER INDUSTRIES AS MAY BE
RECOMMENDED
BY THE NATIONAL TRIPARTITE INDUSTRIAL
PEACE
COUNCIL (TIPC).
In addition, Banking institutions are also included, by
virtue of the General Banking Law. As far as we
know, the TIPC has not recommended any other
industry to be included in this category. Thus, as tire
manufacturing companies are not included in said
enumeration, the Secretary of DOLE (SOLE) should
not have, in the first place, assumed jurisdiction over
the matter. The SOLE is only empowered to assume
jurisdiction over labor disputes which are likely to
cause a strike or lockout in an industry indispensable
to the national interest, and decide it or certify the
same to the National Labor Relations Commission
(NLRC), as per Article 278 of the Labor Code, and of
Section 15 of its Implementing Rules and
Regulations (IRR), as amended by DO 40-H-13.
there is no indication that the Union agreed to submit
the case to the SOLE. There was thus no reason for
SOLE to assume jurisdiction over the same, and so
the Union’s refusal to obey the order to report back to
work is justified. When the SOLE assumes
jurisdiction over an industry which is not
indispensable to the national interest, it is a void
assumption. This is because the cases arising from
any violation of Article 264 of the Labor Code,
including questions involving the legality of strikes
and lockouts, when not indispensable to the national
interest rests in the jurisdiction of the Labor Arbiter
under Article 224 of this code. If the employer or the
NLRC will push for the employees to go back to
work by virtue of the NLRC order, the Union may
file a Petition for Certiorari under Rule 65 to the
Court of Appeals.
Respectfully yours,
Question 2
Dear Team ….,
On January 1, 2015, the company signed a CBA with
the certified bargaining Union. However, the CBA
was never ratified by the covered employees,
although they all accepted and enjoyed the wage
increase and other benefits provided for in the said
CBA. Neither was a copy of the CBA submitted to
the DOLE.
After one and half year from signing of the CBA,
another independent Union existing in the same
establishment filed a petition for the holding of a
certification election among the employees covered
by the CBA and in support thereof, the signature of
40% of the employees in the bargaining unit.
As management counsel, what advice may be you
give us on the petition?
Mr. JMMarquez
President
Answer:
16 February 2016
Mr. JMMarquez,
President
Dear Sir:
Thank you for your inquiry.
To clarify, an independent union has filed a petition
for the holding of certification election one year and
six months from the effectivity date of the Collective
Bargaining Agreement (CBA) we entered into with
the certified bargaining union (CBU).
What can the employer do in this situation?
It is our opinion that we cannot oppose the current
petition for holding of certification election.
While there exists a CBA, it was never ratified by the
covered employees. Article 237 of the Labor Code
(as renumbered) provides that within 30 days from
execution of the CBA, the parties must submit copies
of the same directly to the Bureau or the Regional
Office of the DOLE for registration with verified
proofs of posting in 2 conspicuous places in the place
of work and ratification by the majority of all the
workers in the bargaining unit. In the case of
Associated Trade Union (ATU) v. Hon. Trajano
(G.R. No. 75321, June 20, 1988), compliance with
the ratification requirement is mandatory. Without
such compliance of registration the CBA is rendered
ineffective.
Section 1, Rule VIII of the Implementing Rules of
the Labor Code (as amended by Department Order
No. 40-I-15), Paragraph 4 thereof states that “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 is only 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 Mediator-Arbiter act
favorably on the petition. However, manifestation of
facts that would aid the Mediator-Arbiter in
expeditiously resolving the petition such as existence
of a contract-bar, one year bar or deadlock bar may
be considered. The contract-bar rule shall apply in
any of the following: (1) When there exists an
unexpired registered CBA; or (2) when there is no
challenge on the representation status of the
incumbent union during the freedom period.
In our case, the petition filed by the independent
union is valid because the contract-bar rule does not
apply as the CBA was not mandatorily registered.
Thus, our participation is 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 Mediator-Arbiter act
favorably on the petition. Furthermore, we can make
a manifestation of the relevant facts above-mentioned
to the Mediator-Arbiter to aid him in resolving the
said petition.
Thanks and we hope this clarifies our next steps.
Best regards,
Team Villamor
Follow-up Question:
Dear Team ….,
Does not the acceptance and enjoyment of the
benefits constitute implied ratification?
Mr. JMMarquez
Clarificatory Answer:
Dear JMMarquez,
Greetings!
This is to clarify and address your inquiry.
As stated in our letter earlier, we acknowledged that
there was a valid CBA between the company and the
certified bargaining unit (CBU) despite the non-
ratification of the covered employees. It was held in
Planters Product vs NLRC (G.R. 78524, Jan. 20,
1989) that the CBA remains valid despite not being
formally ratified considering that the employees have
enjoyed its benefits.
However, we would like to emphasize that, for
purposes of filing petition of certification election,
registration of CBA must be complied with;
otherwise, a petition for certification election may
still be filed if the existing CBA is not registered.
Hoping that this has shed light on the matter.
Best regards,
Question 3
Yo!
After several sessions, the company and the certified
bargaining Union's respective negotiating panels
entered into a deadlock as regards the economic
provisions of the CBA. During their lunch break, the
members of the Union started their noise barrage,
lasting for five minutes, blowing their whistles in
every floor of the company's 10 story building
accompanied with banging of metal pans and waste
cans. Clients of the company who are within the
premises got annoyed and left while visitors at the
other offices expressed irritation and complained to
management.
I need your advice as to what action may be taken by
management against the Union and its members.
Answer:
Dear JM Marquez,
Thank you for consulting with us again. It is our great
pleasure to serve you. We treasure your continued
trust and confidence in us, as your lawyers, and
therefore it is our aim today to give you the advice
that you need in your business.
I. Employees’ Actions
In the letter that you sent us, it is our impression that,
when a deadlock occurred in regard to the economic
provisions of the CBA, many employees who are
members of the Bargaining Union started a noise
barrage – which lasted for five (5) minutes – by
blowing their whistles in every floor of the
company’s 10-storey building accompanied by
banging of metal pans and waste cans, causing
irritating noise resulting in the clients within the
company premises and visitors getting annoyed and
leaving complaints to management.
II. Evaluating Employee’s Actions
From what it seems, we are of the impression that
your employees did a concerted activity. This should
be peaceful. In fact, if it is peaceful concerted
activity, it is safeguarded by the Constitution (Sec. 3,
Art. XIII, 1987 Constitution). “Concerted activity,”
in general, is defined as “an activity planned and
accomplished by people acting together.”
Furthermore, it is that peaceful activity including
everything short strike (Azucena, The Labor Code
With Comments and Cases [2013], p. 550). Based on
the facts, your employees, who are members of the
Union, engaged in a concerted activity. There was no
strike because there was no temporary stoppage or
cessation of work (Art. 219[o], Labor Code of the
Philippines, as renumbered]). The only question is
whether or not the activity was peaceful and within
the bounds of the law.
III. Peaceful and Within the Bounds of the Law?
Concerted activities, in order to be protected and
sanctioned by the law, must NOT involve violence,
intimidation, restraint or coercion, which are
injurious to the right to property, constituting a
nuisance. (A. Soriano Aviation v. Employees
Association of A. Soriano Aviation, et al. G.R.
166879, August 14, 2009). However, in the case of
your employees, their act of conducting a noise
barrage within the company’s premises is well within
their right to freedom of expression.
Though the activity is noisy, it is nonetheless
peaceful. Basing on what you confided, there was no
indication of any violence, intimidation, restraint or
coercion, which are injurious to the right to property.
However, it must be noted that where a concerted
activity, though peaceful, if done during working
hours, causing temporary stoppage of work, may
constitute a strike. In which case, the procedural
requirements for strike must be complied with, and
failure to comply with these would render the strike
illegal (Sta. Rosa Coca-Cola Plant Employees, et al.,
v. Coca-Cola Bottlers, Phils., Inc., G.R. 164302-03,
January 24, 2007).
In this case, however, the noise barrage was
conducted during lunch break. It is our view that the
said activity, especially that it was only for a period
five (5) minutes during the break, does not constitute
strike, because lunch breaks and meal periods are
generally not part of the working hours.
IV. Our Advice
Our advice, therefore, is that, since your employees
are in the valid exercise of their right to freedom of
expression, guaranteed and protected by the
Constitution, it is best if you do not do anything that
would obstruct, impede or interfere with - by using
force, violence, coercion or intimidation - this lawful
exercise of their right. Otherwise, you will violate
their right and may be exposed to possible liabilities.
Therefore, you have no action against the Union and
its members, because they validly exercised their
constitutional right.
However, be vigilant about these activities being
conducted during working hours, resulting in
temporary stoppage of work, for then their activities
could constitute strike, and without the required
procedures provided for under the law being
followed, it would be illegal. It is only then that you
may have a cause of action against the Union and its
members.
Question 4
A. Group Question (Feb. 16)
Dear Team___________,
The newly formed labor Union which was certified to
to represent the majority of the rank-and-file workers
of a multi-national pharmaceutical company presented
a list of demands to the management for collective
bargaining negotiations. The company declined to talk
to the Union leaders. The Union felt offended and
during their lunch break, march to and from the
company premises, wearing black arm bands.
What action can you advise management to stop the
Union from these concerted activities?
Mr. JMMarquez
Answer:
Mr. JMMarquez,
Greetings!
This letter relates to your query about the concerted
activities of the labor union of the multi-national
pharmaceutical company and the possible actions of
the company’s management.
Upon close scrutiny of the facts, it is our legal
opinion that the employees are merely engaged in a
peaceful picketing. Peaceful picketing is defined as
the right of workers during strikes consisting of the
marching to and fro before the premises of an
establishment involved in a labor dispute, generally
accompanied by the carrying and display of signs,
placards or banners with statements relating to the
dispute.
While picketing is almost always accompanied by a
strike, there may be picketing without a strike and
without stoppage of work. Picketing is deemed valid
and recognized as a right of the employees; however,
it must be done within the bounds of the law. Under
Article 278 (b) of the renumbered Labor Code of the
Philippines, it states to wit:
“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.”
In relation to the aforementioned rules, it is our legal
opinion that the employees are engaged in a valid and
peaceful picketing. Their picketing was done during
lunch break which did not affect the performance of
the company. When they are so engaged, no person
can obstruct or impede the concerted activities as
stated under Article 279 (b) of the Labor Code which
states to wit:
“Obstructing, impending or interfering with by force,
violence, coercion, threats or intimidation any
peaceful picketing by employees during any labor
controversy or in the exercise of their right to self-
organization or collective bargaining, or aiding or
abetting such obstruction or interference.”
As of now, their picketing remains valid and the
employers cannot impede on their right to exercise
the same. However, should it turn into illegal
picketing as in the case wherein there is a moving
picket which blocks the entry and exit of the
company premises, the employer may take action to
enjoin the picketing employees.
Assuming that eventually the picketing of the
employees will constitute into illegal picketing, the
management may file a petition of injunction to the
NLRC, in accordance with Article 225 (e) of the
Labor Code as renumbered which states that:
“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;
2. That substantial and irreparable injury to
complainant’s property will follow;
3. That as to each item of relief to be granted, greater
injury will be inflicted upon complainant by the
denial of relief than will be inflicted upon defendants
by the granting of relief;
4. That complainant has no adequate remedy at law;
and
5. That the public officers charged with the duty to
protect complainant’s property are unable or
unwilling to furnish adequate protection.”
Hence, the NLRC may issue a temporary restraining
order to enjoin the illegal picketing, should it turn out
to be the case.
Hopes this letter is to your satisfaction.
Respectfully,
_______ Law Firm
B. Individual Questions
1. Dear Ms. _____,
The Secretary of the DOLE motu proprio assumed
jurisdiction over the strike of workers in a private bank.
When the striking workers decided to return to work,
the Company refused them entry.
If you were the counsel for the striking workers, what
remedy do you have against the management's action?
Mr. JMMarquez
Answer:
Mr. JMMarquez:
Good day!
This is in relation to your query.
By virtue of the General Banking Law, banking
institutions are among those industries indispensable
to national interest. In line with this, the Secretary of
Labor and Employment may assume jurisdiction over
the striking workers of the public bank. When a labor
dispute causes or is likely to cause a strike or lockout
in an industry indispensable to national interest, the
Secretary of Labor and Employment may assume
jurisdiction over the dispute and decide it motu
proprio. Such assumption shall have the effect of
automatically enjoining an impending strike or
lockout.
When the labor secretary assumes jurisdiction over a
labor dispute in an industry indispensable to national
interest, such assumption shall have the effect of
automatically enjoining the intended or impending
strike. The mere issuance of an assumption order by
the SOLE automatically carries with it a return-to-
work order. In the same vein, the employer shall also
resume operations and readmit all employees under
the same terms and conditions prevailing before the
strike/lockout. (Union of Filipino Employees, et. Al.
vs. Nestle Philippines Inc.)
While an employer has the right to lockout or the
right to temporarily refuse to furnish work as
a result of an industrial or labor dispute, such act
must be exercised within the bounds of law.
In case of non-compliance with return-to-work-
orders, in connection with the certification and
assumption of jurisdiction by the Secretary of Labor,
the party concerned maybe subjected to the sanctions
provided by law. Employers who refuse to re-admit
returning workers may be liable, upon filing of
proper petition, for the payment of wages and other
benefits from the date of actual refusal until the
workers are re-admitted. In case of an illegal lockout,
any worker whose employment has been terminated
as a consequence thereof, shall be reinstated with
payment of full backwages and other benefits. the
erring employer may even be prosecuted criminally
for refusing to admit the employees.
In the case ta bar, the act of the employer in locking
out the employees will be considered illegal. A
lockout is proper only when the following requisites
are complied with:
a. Notice of intention to declare a lockout which is
filed with DOLE
b. At least 30 days has elapsed since filing of notice
before lockout is declared
c. An impasse resulted the negotiations
d. Lockout is not discriminatory.
The act of the employer in not admitting the
employees will give rise to liabilities. The employer,
not complying with the return-to-work order may be
ordered to reinstate the employees with full
backwages and other benefits such as payment of
damages upon petition by the employees to the
SOLE. (Macleod & co. vs. Progressive Federation of
Labor)
I hope this has been enlightening.
2. Dear Ms. _____,
Before the Union was formed in USC school, there
was already a labor-management council, which
handled grievances from both the employees and the
employer. Since the council was very effective in
settling grievances, the Union and the management
decided to just continue with it and did not bother to
include in their first CBA a grievance machinery. Did
both parties act correctly?
Mr. JMMarquez
Answer:
Sir:
Greetings!
In response to your request for a legal opinion,
hereunder is my opinion on thematter:
Based on the existing laws and jurisprudence, Labor-
Management Councils only handle areas which relate
to discipline of employees. It has no authority or right
to handle collective bargaining and other matters
which relate thereto. It is also clear in the language of
Article 273 of the renumbered Labor Code which
requires establishment of the mode of settling
grievances or grievance machinery in the collective
bargaining agreement. The requirement is an
extension of the parties’ duty to bargain as defined in
Article 263 of the renumbered Labor Code which
states that the duty to bargain collectively means the
performance of a mutual obligation to meet and
convene promptly and expeditiously in good faith for
the purpose of negotiating an agreement with respect
to wages, hours of work, and all other terms and
conditions of employment including proposals for
adjusting any grievances or questions arising in 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. It is also stated in the case
of United Steel Workers v. Warrior Gulf Navigation
Co. that grievance machinery is the very heart of the
industrial self-government. Failure of the parties to
include grievance machinery in their collective
bargaining agreement amounts to Unfair Labor
Practice under Article 259 (g) of the renumbered
Labor Code.
Hence, based on this situation, the parties did not act
correctly in failing to include in their first collective
bargaining agreement a grievance machinery as it is
mandatorily required by the Labor Code to be
incorporated in the said collective bargaining
agreement.
3. Dear Ms. ____,
USC is a private educational institution, which has 3
departments, the elementary, high school and college,
all of which are controlled by one Board of Trustees,
serviced by one cashier and on registrar. It has a full
complement of 500 teachers, who are paid on hourly
basis. On the other hand, USC has a complement of
1000 non-teaching personnel, who are paid on
monthly basis.
In one public assembly, my fellow teachers have
decided to formally organize a Union. We are not
certain however whether we should have only one
bargaining unit for both teaching and non-teaching
personnel.
Kindly advise and guide us.
Mr. JMMarquez
Answer:
Dear Mr. JMMarquez
Greetings!
This is in line with your query on whether USC, a
private educational institution, should only have one
bargaining unit for both teaching and non-teaching
personnel.
Under the Implementing Rules and Regulations of
the Labor Code, a bargaining unit refers to a group of
employees sharing mutual interest within a given
employer unit, comprises of all or less than all of the
entire body of employees in the employer unit or
specific occupational or geographical grouping
within such employer unit.
With regard to your query, the case of University of
the Philippines v Ferrer-Calleja, G.R. No. 96189,
decided on July 14, 1992 is instructive. One of the
issues involved there is whether or not employees
performing academic functions should comprise a
bargaining unit distinct from that of the non-
academic employees.
The Supreme Court, answering on the positive,
applied the test of “community or mutuality of
interests”, a test which has provided the standard in
determining the proper constituency of a collective
bargaining unit.
“The Court explained that "the test of the grouping is
community or mutuality of interests. And this is so
because 'the basic test of an asserted bargaining unit's
acceptability is whether or not it is fundamentally the
combination which will best assure to all employees
the exercise of their collective bargaining rights.
In the case at bar, the University employees may, as
already suggested, quite easily be categorized into
two general classes: one, the group composed of
employees whose functions are non-academic, i.e.,
janitors, messengers, typists, clerks, receptionists,
carpenters, electricians, grounds-keepers, chauffeurs,
mechanics, plumbers; and two, the group made up of
those performing academic functions, i.e., full
professors, associate professors, assistant professors,
instructors — who may be judges or government
executives — and research, extension and
professorial staff. Not much reflection is needed to
perceive that the community or mutuality of interests
which justifies the formation of a single collective
bargaining unit is wanting between the academic and
non-academic personnel of the university. It would
seem obvious that teachers would find very little in
common with the University clerks and other non-
academic employees as regards responsibilities and
functions, working conditions, compensation rates,
social life and interests, skills and intellectual
pursuits, cultural activities, etc. On the contrary, the
dichotomy of interests, the dissimilarity in the nature
of the work and duties as well as in the compensation
and working conditions of the academic and non-
academic personnel dictate the separation of these
two categories of employees for purposes of
collective bargaining. The formation of two separate
bargaining units, the first consisting of the rank-and-
file non-academic personnel, and the second, of the
rank-and-file academic employees, is the set-up that
will best assure to all the employees the exercise of
their collective bargaining rights”
Hence, in response to your query and taking
precedent from the pronouncement of the Supreme
Court, you should have two bargaining units: one
composing of the academic personnel and the other
composing of the non-academic personnel”. This is
to ensure that the interests of both the academic and
non-academic personnel, who do not share a common
or mutual interest, are well represented.
I hope this answers your query.
Q1: The Secretary of the DOLE certified the strike in
a tire manufacturing company to the NLRC for
compulsory arbitration and ordered the striking
employees to report back to work. The Union refused
to obey, prompting the company to file a complaint
for illegal strike against defiant officers and members
of the Union.
If you were the counsel for the Union officers and
members, what defense/s may you interpose?
A1: Considering the facts of the case, here is what we
advise the Union Officers and members:
The defense of lack of jurisdiction: What is involved
in the case is a strike in a tire manufacturing
company. A tire manufacturing company is not
considered to be imbued with public interest. This is
in line with Department Order 40-H-13 of the
Department of Labor and Employment:
SECTION 16. INDUSTRIES INDISPENSABLE TO
THE NATIONAL INTEREST. - FOR THE
GUIDANCE OF THE WORKERS AND
EMPLOYERS IN THE FILING OF PETITION FOR
ASSUMPTION OF JURISDICTION, THE
FOLLOWING INDUSTRIES/SERVICES ARE
HEREBY RECOGNIZED AS DEEMED
INDISPENSABLE TO THE NATIONAL
INTEREST:
A. HOSPITAL SECTOR;
B. ELECTRIC POWER INDUSTRY;
C. WATER SUPPLY SERVICES, TO EXCLUDE
SMALL WATER SUPPLY SERVICES SUCH AS
BOTTLING AND REFILLING STATIONS;
D. AIR TRAFFIC CONTROL;
E. SUCH OTHER INDUSTRIES AS MAY BE
RECOMMENDED BY THE NATIONAL
TRIPARTITE INDUSTRIAL PEACE COUNCIL
(TIPC).
In addition, Banking institutions are also included, by
virtue of the General Banking Law. As far as we
know, the TIPC has not recommended any other
industry to be included in this category. Thus, as tire
manufacturing companies are not included in said
enumeration, the Secretary of DOLE (SOLE) should
not have, in the first place, assumed jurisdiction over
the matter. The SOLE is only empowered to assume
jurisdiction over labor disputes which are likely to
cause a strike or lockout in an industry indispensable
to the national interest, and decide it or certify the
same to the National Labor Relations Commission
(NLRC), as per Article 278 of the Labor Code, and of
Section 15 of its Implementing Rules and
Regulations (IRR), as amended by DO 40-H-13.
Parties, however, may still opt to submit their case to
the SOLE, if they both agree to do so. In this case,
there is no indication that the Union agreed to submit
the case to the SOLE. There was thus no reason for
SOLE to assume jurisdiction over the same, and so
the Union’s refusal to obey the order to report back to
work is justified. When the SOLE assumes
jurisdiction over an industry which is not
indispensable to the national interest, it is a void
assumption. This is because the cases arising from
any violation of Article 264 of the Labor Code,
including questions involving the legality of strikes
and lockouts, when not indispensable to the national
interest rests in the jurisdiction of the Labor Arbiter
under Article 224 of this code. If the employer or the
NLRC will push for the employees to go back to
work by virtue of the NLRC order, the Union may
file a Petition for Certiorari under Rule 65 to the
Court of Appeals.
Q2: The Secretary of the DOLE motu proprio
assumed jurisdiction over the strike of workers in a
private bank. When the striking workers decided to
return to work, the Company refused them entry.
If you were the counsel for the striking workers, what
remedy do you have against the management's
action?
A2: Considering the facts of the case, the striking
workers can by motion, asked the Secretary of Labor
to cite the company in contempt pursuant to the
power vested in the Secretary under the provisions of
the Labor Code. The strikers, upon proper petition,
are also entitled to backwages, damages, and other
postive and/or affirmative reliefs, even the criminal
prosecution againts the employer, per authorization
given to the NLRC under the NLRC Rules of
Procdure. (Article 278(g) of the Labor Code and
Section 4, Rule IX, NLRC Rules of Procedure). Also,
such wages and benefits are paid from the date of
actual refusal until the workers are re-admitted. (No.
24 Guidelines Governing Labor Relations).
Q3: After faithfully complying with all the
prescribed requirements, the certified bargaining
Union went on strike for unfair labor practices on the
part the manufacturing company. While conducting a
peaceful and orderly strike, the company brought to
the factory replacements for the strikers since
production must continue in order to meet pending
orders from customers. Did management act in
accordance with law? Please advise
A3: As I understand, replacements were brought to
the factory for the strikers, but it was not clear on
whether they were brought in on a permanent basis,
or merely temporarily, until the lawful strikers go
back to work. Under Article 279(c) of the Labor
Code of the Philippines on Prohibited Activities:
“No employer shall use or employ any strike-breaker,
nor shall any person be employed as a strike-
breaker.”
Also, a Strike-Breaker is defined as “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,” by Art.
219 (r) of the Labor Code.
Now, as to the facts of the case, since it is unclear
whether these replacements were hired permanently
or temporarily only for the duration of the strike, we
must qualify also the legality of the company’s
decision:
If the replacements were only to work for the
duration of the strike, and leave once the employees
come back from the strike, and without affecting the
wage, hours and conditions of work of the original
employees in the exercise of their right to peacefully
picket, then there is no violation of law on the part of
the employer. It is true that the employers also have
the right to a reasonable return of investments, and
this right will not impede the right to security of
tenure and right to strike of the employees, for as
long as this temporary replacement does not affect
the striking employees. The company is then said to
have acted in accordance with the law.
If, however, these replacements were hired on a
permanent basis, then this act amounts to the hiring
of a strike-breaker, and is prohibited by law. This is
because the employees were doing a lawful act which
complied with all the requirements of law, and
replacing them because of their lawful strike is not a
sufficient ground for termination of employment. The
strike-breaker then obstructs, impedes, and interferes
the peaceful picketing of the employees, because the
latter will not want to exercise their right to picket for
fear of losing their jobs. It is thus not a defense that
production must continue in order to meet pending
orders from costumers, that the employees be fired
and replaced by these so called strike-breakers. This
is then an illegal act by the company.
Q4: Can you provide legal basis and jurisprudence to
support your conclusion that permanent replacement
workers are strike breakers?
A5: According to Article 279 (a) “…mere
participation of a worker in a lawful strike shall not
constitute sufficient ground for the termination of his
employment, even if a replacement had been hired by
the employer during such lawful strike.”
Even if the employer had hired replacements for the
strikers, the employees still have a right to
reinstatement, as ruled by the Supreme Court in
several cases like Norton Harrison Company Labor
Union v Norton and Harrison Company, Feati
University v Bautista, and The Insular Assurance
Company, Ltd., Employees Association-NATU v
The Insular Life Company, Ltd. If the employer’s
improper conduct was the initial cause of the strike,
all strikers are entitled to reinstatement and to the
dismissal of the replacement employees whenever
necessary. The replacements do not gain permanent
right to the positions they held. Reinstatement of the
strikers, who have not found substantially equivalent
employment elsewhere, therefore follows as a right,
notwithstanding that the employer has hired others to
take the place of the strikers for the purpose of
continuing the operation of the plant or the business
of the industry.
There has yet been no jurisprudence on the matter of
permanent replacements specifically being called
“strike-breakers”. However, it is my legal opinion
that they should be considered strike-breakers, since
the very act of hiring them “obstructs, impedes, or
interferes with by… threats or intimidation any
peaceful picketing…” as stated in Art. 219 of the
Labor Code. To hire these people, then, will impede
the right of the employees to stage a lawful strike,
since they will fear for their tenure.To deny the
employees reinstatement will amount to illegal
dismissal. In my opinion, these replacements, if made
permanent, aptly fit the description of a strike-
breaker.
If I may, a Strike-breaker is also defined in the
American Heritage Dictionary of English Language
as one who works or provides an employer with
workers during a strike. The Collins English
Dictionary also defines such as a person who tries to
make a strike ineffectual by working or taking the
place of those on strike. Adopting these definitions
may lead to the plausible conclusion that hiring said
replacements on a permanent basis is properly called
the hiring of a strike-breaker.
Q5: A member of an independent Union at USC
school complained to the BLR that he was refused
the right to inquire into Union funds and given the
run around by his Union which he suspects of
squandering union dues collections. Acting therein,
the BLR ordered the inspection of the union's book of
account and other records, which was protested by
the Union claiming that its financial records are
submitted to the BLR every year., and hence such
order of inspection is oppressive and highly irregular.
Who is right? Please advise.
A6: As already been provided in my preceding
answers – under the law (Art 289 of the Labor Code)
the SOLE Or his "duly authorized representative" is
hereby empowered to inquire into the financial
activities of legitimate labor organizations upon filing
of the complaint under oath and duly supported by
the written consent of at least 20% of the total
membership of the labor organization concerned and
to examine their books of account and other records
to determine compliance or non-compliance with the
law and to prosecute any violations of the law and the
union constitution and its by-laws: provided, that
such inquiry or examination shall not be conducted
during the 60-day freedom period nor within the 30-
days immediately preceding the date of election of
union officials.
In the case of Barles vs. Bitonio, the DOLE Secretary,
however can properly delegate to authorized
representatives like the BLR power under the above
provision which includes the power to examine the
financial accounts of legitimate labor organizations.
As in this case, the BLR has jurisdiction, as it has been
described as broad and expansive, as conferred by law
to it. Then, it’s order is not irregular nor oppressive
since it’s right to do so is already provided for by law
upon the complaint made under the procedure
provided in Rule XI of DO 40-03.
Dear Team Tiannok,
The newly formed labor Union which was certified to
to represent the majority of the rank-and-file workers
of a multi-national pharmaceutical company
presented a list of demands to the management for
collective bargaining negotiations. The company
declined to talk to the Union leaders. The Union felt
offended and during their lunch break, march to and
from the company premises, wearing black arm
bands.
What action can you advise management to stop the
Union from these concerted activities?
Mr. JMMarquez
Dear Mr. JMMarquez,
Good day!
The facts, as we gathered from you, are as follows:
A newly formed labor Union, which was certified to
represent the majority of the rank-and-file workers,
of a multi-national pharmaceutical company wanted
to negotiate with the company and presented a list of
demands. However, the company declined to talk to
the Union leaders. Such action made the Union feel
offended and during their lunch break, they marched
to and from the company premises, wearing black
arm bands.
In our opinion, we would recommend to engage with
the Union in collective bargaining.
The law provides that when a union has been
certified to represent the majority of the employees,
such union has the right to collectively bargain with
the company.
As such, your company is mandated by law to engage
with the Union to collectively bargain. This would
mean that representatives from the company and
representatives from the union is obligated 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.
If your company fails to meet with the Union, you
might be charged with unfair labor practice which
would give rise to the Union to declare a strike.
With regards to the action of the members of the
Union in wearing black arm bands and marching to
and from the company premises during their lunch
break. This particular situation involves a picketing.
Picketing or “peaceful picketing” is the right of
workers to peacefully march to and from before the
premises of an establishment involved in a labor
dispute generally accompanied by the carrying and
display of signs, placard and banners intended to
inform the public about the dispute. There must be no
temporary stoppage of work. This is part of freedom
of speech.
In a Supreme Court decision, it was stated that it is
not illegal to wear armbands to represent union
membership. It is a valid exercise of their freedom of
speech.
For employees to exercise this right, there is no
petition or permission needed for lawful picketing
from NCMB, neither there is a need to have a labor
dispute. What is required is that there is no temporary
stoppage of work and it does not constitute
obstruction to the free use of property so as
substantially to interfere with the comfortable
enjoyment of life or property, nor results to an
unlawful obstruction to the free passage or use in the
customary manner of a street.
Moreover, as provided for by the Labor Code, “No
person engaged in picketing shall commit any acts of
violence, coercion, or intimidation or obstruct the
free ingress to and egress from the employer’s
premises for lawful purposes or obstruct public
thoroughfares.”
In the case at hand, what the Union did was merely
marching to and from the company premises,
wearing black arm bands during lunchbreak. This is a
clear depiction of picketing which is lawful and such
cannot be enjoined because it is part of the freedom
of speech guaranteed by the constitution. (Mortera vs
CIR, 79 Phil 345)
There was no showing that it was performed so as to
disrupt or result to temporary stoppage of work nor is
it carried out through the use of illegal means,
violence and other illegal acts nor there is a need to
protect the rights of third parties or innocent
bystanders, which if any of these is present will
validly allow the employer to file a petition for
injunction to the NLRC.
Therefore, what the union did was lawful and
management should respect such means of
communicating which constitutes an exercise of
Freedom of Speech. However, if there was presence
of unlawful picketing such that it resulted to
temporary stoppage of work or presence of act of
violence, coercion or intimidation or obstruction of
free ingress to and egress from the employer’s
premises or obstruction of public thoroughfares, the
management then shall have the remedy of filing a
petition for injunction to the NLRC which will be
valid for 20 days. Absence such, management should
allow such valid exercise of the union.
Furthermore, their activities are constrained during
their lunch period and is not disruptful to the
company operations.
Please let me know if I can be of further service to
you in this matter.
Very truly yours,
Team Tiannok
Dear Mr. Tiannok,
After several weeks of bargaining negotiations, the
certified bargaining Union was constrained to accept
a stipulation that in exchange for a yearly wage
increase, it would waive full payment of overtime
compensation and accept no more than 5% premium
for overtime work. If you were another legitimate
labor union existing in the same bargaining unit, can
you petition for the cancellation of the certified
bargaining Union's registration for entering into a
CBA stipulation which is clearly illegal,
unconscionable and grossly disadvantageous to the
members of the bargaining unit? Please advise.
Mr. JMMarquez
Dear Atty. JMMarquez,
Good day!
The facts, as I gathered from you, are as follows:
A certified bargaining union was constrained to
accept a stipulation that the union shall waive full
payment of overtime compensation but shall receive
a yearly wage increase. However, another legitimate
labor union wanted to file a petition to cancell the
certified bargaining union's registration because the
union entered into a cba stipuation which is clearly
illegal and grossly disadvantageous to the members
of the bargaining unit.
In my opinion, the other legitimate labor union does
not have any legal personality to assail the
registration of the certified bargaining union's
registration.
Under Article 247 of the Labor Code, there are only
three grounds for cancellation of union registration
and these are:
1. 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 ratificaiton;
2. Misrepresentation, false statements or fraud in
connection with the election of officers, minutes of
the election of officers, and the list of voters;
3. Voluntary dissolution by the members.
Or if the certified bargaining union violates any of
the rights and conditions of membership under
Article 249 of the labor code, such as failure to
inform its members on the provisions of the
collective bargaining agreement.
Unfortunately, without any of the four grounds
above, the registration of a duly certified bargaining
union cannot be cancelled. Entering into collective
bargaining agreements which provide terms and
conditions of employment below minimum standards
established by law is not one of the grounds for
cancellation of registration. This was provided only
before the amendment of the Labor Code. As such,
only if those grounds as provided in Article 247 and
249 exist can a registration of a union be cancelled.
The only remedy available for the members of the
union who entered into an illegal and
disadvantageous collective bargaining agreement is
that of voluntary dissolution by the members by a
vote of at least two-thirds of its general membership
in a meeting duly called for that purpose to dissolve
the organization.
Unfortunately, the other legitimate labor union
cannot interfere in the affairs of the certified
bargaining union's affair.
Please let me know if I can be of further service to
you in this matter.
Very truly yours,
Shaleem M. Tiannok
Dear Mr Tiannok,
If the other legitimate labor union existing in the
same bargaining unit has no legal standing, then who
has?
Mr JMMarquez
Dear Mr. JMM Marquez,
In a case of cancellation of a union’s registration,
there are two kinds. The first kind is a petition for Mr. JMMarquez
cancellation of union registration which may be filed
by any interested party and the second kind is a
voluntary cancellation of registration by the members
Dear Mr. JMMarquez,
themselves.
Good day! Here is the opinion that you requested.
In my opinion, the act of the Mayor without the
Now as expressed by our labor laws, only those
knowledge of the school in coercing and intimidating
grounds under Article 247 of the Labor Code, which
the three workers into abandoning the union does not
I have already mentioned previously, and a violation
constitute an Unfair Labor Practice and therefore the
of any of the enumerations in Article 249 of the same
union cannot file a case against the City Mayor and
Code, can be the bases for the cancellation of union
the school for having no cause of action.
registration.
As provided for in the Labor Code, Unfair Labor
Practices are offenses committed by the employer or
Since in the case at bar, the other legitimate labor
labor organization which violate the constitutional
union existing in the same bargaining unit wants to
right of workers and employees to self organization.
have the other union’s registration cancelled, there
ULP acts are inimical to the legitimate interests of
must be an existence of any of those grounds from
both labor and management, disrupt industrial peace
which a cancellation of union registration can hold
and hinder the promotion of healthy and stable labor-
water. Unfortunately, none of them exists. Hence, the
managament relations.
other labor union has no legal standing simply
It is worthy to note that the requisites for there to
because the law requires of it to anchor its claim on
commit Unfair Labor Practices are.
one of the grounds laid out by law.
1. There is employer-employee relationship between
the offender and offended.
A contract is a law between the parties and it may not
2. The act done is expressly defined in the code as an
be assailed by one who is not a privy thereof.
act of unfair labor practice.
In the given situation, it cannot be denied that it is an
But fret not, because there is still a remedy. The very
act involving Unfair Labor Practice for it involves
union constrained to accept an illegal and clearly
coercion and the code expressly provides that it shall
unfair stipulation, in fact, is given by the law a legal
be unlawful for an employer to interfere with, restrain
standing to voluntarily dissolve itself.
or coerce employees in the exercise of their right to
self organization. However, it is equally important
Under the Labor Code, the registration of a legitimate
that aside from that act, there should be an employer-
labor organization may be cancelled by the
employee relationship between the offender and the
organization itself. Provided, That at least two-thirds
offended which is wanting in this particular case. The
of its general membership votes, in a meeting duly
City mayor who coerced and intimidated the three
called for that purpose to dissolve the organization:
workers into abandoning the union is not the
Provided, further, That an application to cancel
employer of the workers mentioned. The City mayor
registration is thereafter submitted by the board of the
merely recommended them to the USC who are in
organization, attested to by the president thereof.
fact and in law the employer of the workers. And
considering that USC or the school has no knowledge
Clearly, if the members of the union have felt the
and even no involvement of such coercion and
harshness of the stipulation, it can by all means,
intimidation, there is no Unfair Labor Practice to
dissolve the union itself.
speak of.
Hence, the union has no cause of action against the
I hope it is all clear now. I very much appreciate your
City Mayor since it is not the employer of the
great attention to detail on this important matter.
employees, and also no cause of action against the
school (the employer) since it is not the one which
Thank you very much.
acted on the coercion and intimidation.
What the union may do is probably to file an
Respectfully yours,
administrative complaint against the City Mayor in
its capacity as a mayor for the coercion and
Shaleem M. Tiannok
intimidation which as a public official is not legal and
proper.
Dear Ms. Tacuyan,
Please let me know if I can be of further service to
Upon the recommendation of the City Mayor of you in this matter.
Cebu, USC school hired three ward leaders of the Very truly yours,
CARLA MAE F. TACUYAN
Mayor. Three months after their employment, these
three workers organized a labor union. Upon learning Ms Tacuyan,
of this, the Mayor without the knowledge of the
school, coerced and intimidated the three workers Will the City Mayor not fall within the meaning of
into abandoning the Union. "employer" as it is defined by the Labor Code?

What action if any may the Union file against the Is there no other laws where the City Mayor can be
City Mayor and the school? Please advise. held liable?

Mr JMMarquez
Dear Mr. JMMarquez,
Good day!
I would like to clarify and answer otherwise. The
City Mayor is liable of unfair labor practice being
considered as an employer as defined by the Labor
Code.
“Employer” includes any person directly or indirectly
in the interest of an employer in relation to an
employee and shall include the government and all its
branches, subdivisions and instrumentalities, all
government owned and controlled corporations and
institutions, including non-profit private institutions,
or organizations. Moreover, the term shall not include
any labor organization or any of its officers or agents,
except when acting as employer.
In the given situation, the workers are ward leaders of
the City Mayor and the mayor himself recommended
them to USC and were actually hired. After 3 months
of their employment, these 3 workers organized a
labor union. Upon learning of this, the Mayor without
the knowledge of the school, coerced and intimidated
the three workers into abandoning the Union.
The City Mayor may not be a direct employer of the
3 workers, however he may be considered an indirect
employer despite only his recommendation to USC
because it is noteworthy that the 3 workers are “ward
leaders” of the City Mayor even before the
recommendation. It is clearly defined by the Labor
Code that an “employer ” includes any person
directly or indirectly in the interest of an employer in
relation to an employee.
And since the requisites for there to have unfair labor
practice is that:
1. There is employer-employee relationship between
the offender and offended.
2. The act done is expressly defined in the code as an
act of unfair labor practice.
The City Mayor undoubtedly is guilty of unfair labor
practice for being considered an employer of the 3
workers who coerced and intimidated them in
abandoning the union which violate the constitutional
right of workers and employees to self organization.
On the other hand, the school being the direct
employer still cannot be considered guilty of unfair
labor practice since it has no knowledge and
participation on such acts of unfair labor practice
done by the City Mayor.
Therefore the 3 workers have a cause of action
against the City Mayor for unfair labor practice
which should be filed to the Labor Arbiter within 1
year from the accrual of the action.
Please let me know if I can be of further service to
you in this matter.
Respectfully yours,
CARLA MAE F. TACUYAN
Dear Mr. Tangpuz,
USC is a private educational institution, which has 3
departments, the elementary, high school and college,
all of which are controlled by one Board of Trustees,
serviced by one cashier and on registrar. It has a full
complement of 500 teachers. I have convinced my
fellow teachers that the best way to secure more
benefits and better working conditions is to formally
organize a Union. We are however undecided as to
whether to form a single Union for the entire faculty
staff or a separate Union for each department.
Kindly advise and guide us.
Mr. JMMarquez
Dear Mr. JMMarquez,
Good Day!
Here is the opinion that you requested.
The facts, as I gathered from you, are as follows:
USC has three departments which consist the
elementary, high school and college which has 500
teachers and they are divided what to form whether
single or separate union.
The question you pose is whether to form a single
union for the entire faculty staff or a separate union
for each department.
My advice with regards to this case is that:
I advise that it would be better to have a single union
for the entire faculty staff because all three (3)
departments have the commonality of interest among
the 500 teachers – which is to teach, which they the
same type of work and to receive the fruits of their
endeavors.
Under the substantial mutual interest rule, the
employees sought to be represented by the collective
bargaining agent must have substantial interest in
terms of employment and working conditions as
evinced by the type of work they perform. It is
characterized by similarity of employment status,
same duties and responsibilities and substantially
similar compensation and working condition. (San
Miguel Corporation Employees Union-PTGWO vs.
Confesor, G.R. No. 111262, Sept. 19, 1996, 262
SCRA 81, 98).
Very truly yours,
Mr. Tangpuz
 omissions for which his dismissal is sought which in
Dear Ms. Sios-e, Dear Ms. Sios-e,
this case is his incurable disease; and (2) the
Our company is a beef cannery, where majority ofsubsequent our workers notice which
are doinginforms the employee
manual packing ofand
the
Our company is a beef cannery, where majority of employer’s decision to dismiss him.
casing up of beef meat which are exported to China. Miguel who is one of my regular workers
our workers are doing manual packing and casing up
recently contracted skin diseases. I need you to advise us on
I hope this the
willstep by stepyour
help resolve procedure on how
cause. Thank you. to
ofdeal
beef meat which are exported to China. Miguel
with Miguel, including drafting for us the prescribed notices, if any, should his diseases be
who is one
found to of
bemy regular workers
permanently recently contracted
incurable. Kindly ensure I Best
am compliant
Regards andwithHappy law
Newand will not incur any
Year,
skin diseases. I need you to advise us on the step by liability.
step procedure on how to deal with Miguel, including Tracy Doris P. Sios-e
Mr JMMarquez
Ms. Sios-e,
drafting for us the prescribed notices, if any, should President
Beefy Meat Company
his diseases be found to be permanently incurable. Where is your draft notices?
Kindly ensure I am compliant with law and will notMandaue City
incur any liability. Mr. JMMarquez
Dear Mr. JMMarquez,
Mr JMMarquez
President Below are suggested notices needed should his
diseases be found to be permanently incurable. As
Beefy Meat Company
mentioned, two notices are required to comply with
Mandaue City the procedural due process of the termination of your
employee.

Dear Mr. J.M Marquez Subject: Notice to Explain

Good Day!
This is in response to your query regarding your
employee who has recently contracted a skin disease.
Under the Implementing Rules of the Labor Code,
Book VI Rule I Section 8 provides that “Where the
employee suffers from a disease and his continued
employment is prohibited by law or prejudicial to his
health or to the health of his co-employees, the
employer shall not terminate his employment unless
there is a certification by competent public health
authority that the disease is of such nature of at such
a stage that it cannot be cured within a period of six
(6) months even with proper medical treatment. If the
disease or ailment can be cured within the period, the
employee shall not terminate the employee but shall
ask the employee to take a leave of absence. The
employer shall reinstate such employee to his former
position immediately upon the restoration of his
normal health.”
In your case, sir, we must first determine whether
your employee’s disease is prohibited by law or is
prejudicial to his health or to the health of his fellow
employees to determine whether the action needed is
to terminate or to merely give a leave of absence.
You should bring Miguel to a Competent Public
Health Authority to determine the nature of his
disease and secure a certificate. Should the disease be
found curable within 6 months, Miguel should be
given leave of absence credited to any leave credits
he may have and reinstated when cured but must also
have a certificate clearing him. If the competent
public health authority finds the skin disease
incurable within the period of six months with proper
Where is your draft notices?
medical treatment, this is a ground for terminating
Miguel’s employment with your company.
Mr. JMMarquez
In the case of Deoferio vs Intel Technology, the
Supreme Court has mandated that the twin-notice
requirement applies to cases of termination due to
disease. Your employee should be given (1) notice
which apprises the employee of the particular acts or
Mr. Miguel,
It has been reported that you are currently suffering
from skin diseases while in the employment of Beefy
Meat Company which may be detrimental to the
interest of the company and its customers and clients.
Existing circumstances compels the management to
take action accordingly.
Your continued employment while inflicted with
these diseases may be prohibited by law or may pose
serious health risks to you or your fellow employees.
Termination may be rendered necessary should a
competent public health authority find that your
diseases are incurable within a six-month period even
with proper medical attention.
Please submit your written explanation regarding this
matter within FIVE (5) days upon receipt hereof. You
have the right to be represented by any counsel or
person of your choice.
In the event that after investigation the imposition of
proper sanctions, including termination from
employment, is warranted, this shall be made known
to you.
Kindly give this matter your immediate attention.
Subject: Notice of Dismissal
Mr. Miguel,
We regret to inform you that based on the ground of
your medical reports, the management has decided to
Ms. Sios-e,
discontinue your employment with Beefy Meat
Company effective [date].
After thorough deliberation, your termination was
deemed necessary as it was established on the
certification of the public health authority that your
skin diseases are found to be incurable within a six-
month period even with proper medical treatment.
You shall be receiving separation pay accordingly.
 employee for as long as there is some basis for the
We hope that you will understand the position of the loss of confidence such as in your case where the
management and look forward for your kind clearance from your previous employer was needed
cooperation in the matter. to vouch for your integrity and competence as a
person who will handle the finances of the mining
corporation. Note that there is a distinction between
managerial and rank and file employees when it
comes to the termination of employees based on
breach of trust. For managerial employees, the mere
existence that there is basis to believe that such
employee has breached the trust of the employer
Dear Mr. Michael Roa, would suffice his dismissal.
Dear Mr. Michael Roa,
Our
Ourcompany
company is engaged in mining
is engaged operations.
in mining On
operations. But having
On August a sufficient
1, 2015, I wasground for termination
offered employment is not
as
August 1, 2015, I was offered employment as enough however. The Supreme Court emphasized the
Manager for Finance under a six month period of probation. As a condition for my regular
need for performing the proper procedure for
Manager for Finance
employment, under
I was a six month
required period ofa clearance from my previous employer that I was free
to submit termination in order to avoid the payment of
probation.
from any Asmoney
a condition for my regular On my 5th month,damages.
accountability. I was served
Thus, aa managerial
notice of employee
the termination
concerned of
my probationary employment for failure to qualify
employment, I was required to submit a clearance as to
needs a regular
be sent a and permanent
written employee.
notice informing him of the
Domy
from I have
previousanyemployer
valid cause
that I of
wasaction against
free from acts or omissions
any my company for illegalleading to his termination.
dismissal? He must
Please advise.
also be give an opportunity to explain his side before
money accountability. On my 5th month, I was Mr. JMMarquez
providing him with the written notice stating the
served a notice of the termination of my probationary employer’s decision to terminate his services.
employment for failure to qualify as a regular and
permanent employee. Without following due process, the employer may
still be ordered to pay the managerial employee
Do I have any valid cause of action against my damages despite the absence of a case of illegal
company for illegal dismissal? Please advise. dismissal.

Mr. JMMar I hope you find everything in order with my analysis

of your case.

Dear Mr. JMMar, Thank you very much.

Thank you for reposing your confidence in the Very truly yours,
undersigned as regards the matter of your dismissal
from the mining corporation. Michael Roa

In my opinion, there is no case of illegal dismissal Mr. Roa,

albeit there was a violation of your right to
procedural due process for which you can seek What is the relevance of discussing loss of trust here?
Mr. Roa,
damages. The dismissal is based on failure to qualify.

Allow me to explain, to wit: What is the

In failure
Under the rule on Probationary Employment, a
probationary employee can be legally terminated: (1)
for a just cause; or (2) when the employee fails to
qualify as a regular employee in accordance with the
reasonable standards made known to him by the
employer at the start of the employment. The
limitations in dismissing a probationary employee
are:
First, this power must be exercised in accordance
with the specific requirements of the contract.
Second, the dissatisfaction on the part of the
employer must be real and in good faith, not feigned
so as to circumvent the contract or the law;
Third, there must be no unlawful discrimination in
the dismissal.
Moreover, loss of trust is a legal ground for
terminating the services of an employee particularly
for employees holding managerial positions.
An employer may take steps to dismiss a managerial
relevance
to qualify, doesof
thediscussing loss of trust here? The dis
twin notice requirement
apply as you have pointed out?
In failure to qualify, does the twin notice requirement a
Mr. JMMarqu
Mr. JMMarquez
Dear Mr. JMMarquez,
My apologies for the delayed reply as I have internet
connectivity issues since yesterday afternoon.
As to your question on the relevance of loss of
confidence in your case, I based it on my mistaken
reading that you failed to give your clearance as
required under your probationary employment. I
construed this as an act or omission or concealment
that justifies the loss of trust and confidence of the
employer and therefore a just cause for the dismissal
but nonetheless merits the exercise of procedural due
process (i.e. the twin notice requirement).
Aside from the just and authorized causes of
termination, an additional ground to terminate
probationary employment is for failure to qualify in hours of work and all other terms and conditions of
accordance with reasonable standards made known employment, including proposals for adjusting any
by the employer to the employee at the time of the grievances or questions under such agreement.”
engagement. And this is what happened in your case.
In regards to the representation aspect, the CBA lasts
In failure to qualify, the twin notice requirement is for 5 years. This is where the freedom period
not strictly applied because your initial appraisal at becomes noteworthy. The freedom period is the last
the onset of your employment of the standards with sixty (60) days immediately preceding the expiration
which you will be sized up serves as the first notice. of the five-year CBA. During the freedom period, a
Thus, when you failed to meet these standards after a petition for certification election can be filed but not
reasonable period of probation, the notice of your before nor after such period. The contract bar rule is
dismissal is validly the second notice given to you. intended to ensure stability in the relationships of the
This being the case, there is no violation of due workers and the management by preventing frequent
process. modification of any collective bargaining unit. Thus,
no petition for certification election may be filed
I hope I have clarified all that you need. before the onset of the freedom period nor after such
period. The old CBA then is extended until a new one
Thank you. is signed. And as a general rule a registered CBA is
grounds to bar the filing of petition for certificate
Very truly yours, election. In the case at bar, having been filed within
the freedom period, the contract bar rule hence does
Michael Roa no find application.
Dear Team Roa, Having explained the premise of your concern, we
Dear Team Roa,move on to the important issue on whether the CBA
AA month
month before
before the expiration
the expiration of the
of the CBA CBA betweenexecuted
between the company
with the and the certified
existing certified bargaining
bargaining union
Union, another
the company independent
and the certified Union
bargaining existing in theamid
Union, samethebargaining
conduct of a unit filed a election
certification petitionwas
forlegal.
certification
another election
independent Unionand complied
existing with all the requirements for the holding of an election. Two
in the same
The case of Oriental Tin Can Labor Union vs.
otherunit
bargaining local
filedchapters
a petitionlikewise intervened in the proceedings.
for certification Because of the delay in the
Secretary of Labor and Employment, et. al. (G.R.
resolution of the representation issue
election and complied with all the requirements forand in its desire
116751) is squarely increases
to grant salary instructive. to its employees,
thethe company
holding executed
of an election. Two a other
new local
CBAchapters
with the certified bargaining Union. Did the company act
likewise intervened in the proceedings. Because ofin the circumstances?
legally In this case, a new agreement was entered into
Mr. JMMarquez between the existing union and the company while
the delay in the resolution of the representation issue
and in its desire to grant salary increases to its
Presidentthere were still issues being settled on the conduct of
a certification election. The Supreme Court ruled
employees, the company executed a new CBA with with definitive authority that this is allowed and
noted that the registration of a CBA cannot bar the
the certified bargaining Union. Did the company act
election being prayed for. They mentioned that a
legally in the circumstances? representation case shall not be adversely affected by
a CBA registered before or during the last sixty days
Mr. JMMarquez
of a subsisting agreement or during the pendency of
President the representation case. They declared that “the
benefits that may be derived from the implementation
of the CBA prematurely entered into between the
union and the company shall be in full force and
Dear Mr. JM Marquez, effect until the appropriate bargaining representative
is chosen and negotiations for a new CBA is
Good day! thereafter concluded.”

Thank you for your question.
We believe your query concerns itself with the
legality of executing a new Collective Bargaining
Agreement (CBA) in an organized establishment
during the freedom period and at a time when a
certification election is to be conducted.
Our answer is in the affirmative. Your company acted
legally in the circumstances.
First, allow us to elucidate the context of your inquiry
based on the nature of a CBA:
A CBA, according to the Bureau of Labor Relations,
is “a contract executed upon request of either the
employer or the exclusive bargaining representative
of the employees, incorporating the agreement
reached after negotiations with respect to wages,
It was equally emphasized in Victorias Milling Co. v.
Victorias Manapla Workers Organization v. Court of
Industrial Relations and Free Visayan Workers, it
was held that the petition for certificate election does
not bar the employer and the incumbent union from
renegotiating and renewing the expiring CBA. Hence
a CBA may be renegotiated before, during or after
the 60 day freedom period. But if during such period
a PCE is filed, the Med-Arbiter can order the
suspension of the renegotiation until the
representation proceedings finally end. It is clear that
the Code allows a PCE during the freedom period to
preserve democratic contest between union and in the
same breath by allowing CBA renegotiations during
the same freedom period, nonetheless the law
safeguards the opportunity to possibly upgrade the
employee’s employment condition. If this were not
the rule, there would be a gap or interregnum during
which no agreement would govern, that is, from the
time the old collection bargaining contract expired to
the time petition for certification election is decided
and a new agreement is entered into with the Union
that may be duly certified as the proper bargaining
unit. Without any agreement to govern the relations
between labor and management in the interim, the
situation would well be productive of confusion and
result in breaches of the law by either party.
Moreover, certification elections are exclusively the
concern of employees so much so that the only
instance when an employer may concern itself with
employee representation activities is when it has to
file the petition for certification election because
there is no existing CBA in the unit and it was
requested to bargain collectively, pursuant to Article
258 of the Labor Code.
In gist, the case declares that “a struggle between
contending labor unions must not jeopardize the
implementation of a CBA that is advantageous to
employees.”
But let it be stressed that when a collective
bargaining agreement is entered into at the time when
the petition for certification election had already been
filed by a union and was then pending resolution, the
said collective bargaining agreement cannot be
deemed permanent, precluding the commencement of
negotiations by another union with the management.
In the meantime, so as not to deprive the workers of
the benefits of the said agreement, it shall be
recognized and given effect on a temporary basis
subject to the results of the certification election. It
may be gleaned from these rulings that the company
acted within the bounds of the law in this
circumstance, considering that the CBA was adopted
in order to grant salary increases to its employees.
Hence, as a general rule that a CBA signed while
there is a pending representation case is invalid.
However, in certain circumstance, the law allows the
adoption of a CBA. But the CBA shall only be
recognized and enforced on a temporary basis,
subject to the results of the certification election. The
agreement may be continued in force if the union that
negotiated it is certified again as the exclusive
bargaining representative or may be rejected and
replaced in the event the rival union emerges as the
winner.
We hope we have adequately shed light to your
problem.
employees be excluded from the scope and coverage
of the CBA since they are not regular and permanent
employees. Please advise.
Regards,
Mr. JMMarquez
President
On the Go Resto, Inc.,
Cebu City
Dear Mr. JMMarquez,
Thank you for your inquiry.
It is my understanding that your concern revolves
around the legality of a provision in the Collective
Bargaining Agreement (CBA) which excludes
probationary members from the scope and coverage
of such contractual agreement.
The answer would be in the affirmative. The law
does not prohibit such exclusion.
With the CBA being a contract by nature, the parties
are free to stipulate terms that they deem suitable to
their circumstances for as long as it is not contrary to
law, morals and public policy. Equally important is
that the terms and conditions of employment, as fixed
and administered in the CBA, should not be below
the minimum standards of law.
In relation to probationary employees, the CBA may
exclude them from the scope and coverage for as
long as such exclusion is without prejudice to their
right to security of tenure as probationary employees
and to the minimum standards of employment as
required by law. Thus, in your case, the exclusion can
be legally and validly done as was provided for in the
existing CBA.
I hope I have addressed your concern.
Very truly yours,
Michael Roa

Very truly yours,

Team Roa Dear Ms. Sios-e,

On January 1, 2015, the company signed a CBA with Dear Ms. Sios-e,
theOn
certified
Januarybargaining
1, 2015, Union. However, the
the company CBA a CBA with the c
signed
was never
CBAratified by theratified
was never covered employees,
by the covered employees, altho
Dear Mr. Roa, wage
although increase
they and
all accepted other
and benefits
enjoyed provided for in the said
the wage
Dear Mr. Roa,
The company has an existing CBA with the rank-and-file Union, which covers only regularsubmitted
The company has an existing CBA with the rank- increase and other benefits provided for in the said to the DOL
and
and-file Union, which
permanent covers onlyTwo
employees. regular Less
CBA. than
Neither one
was amonth
copy of before
the
and who applied for employment with the company under
males CBA the expiration
submitted to of the CBA, an
permanent employees.
probationary statusTwo
weremales who applied
accepted for
as members by the same establishment
thecertified
DOLE. bargaining filed
Union. a petition
Can these fornon-
the holding of a cer
employment
permanent with the company
employees beunder probationary
excluded from the scope and covered by the CBA and in support thereof, the signat
Less coverage
than one monthof the CBA
before thesince theyofare
expiration thenot
status were accepted as members by the
regular certified
and permanent employees. advise. Union existing in the bargaining unit.
Pleaseindependent
CBA, another
bargaining Union. Can these non-permanent Did this independent Union act in acc
Regards,same establishment filed a petition for the holding of
Mr. JMMarquez Mr. JMMarquez
President President
On the Go Resto, Inc.,
Cebu City
a certification election among the employees covered
by the CBA and in support thereof, the signature of
40% of the employees in the bargaining unit.
Did this independent Union act in accordance with
law?
Mr. JMMarquez
President
Mr. JMMarquez,
President
Dear Sir:
Thank you for your inquiry.
I am of the opinion that the independent union acted
within the bounds of law.
An agreement negotiated by the employees'
bargaining agent should b e ratified or approved by
the majority of all the worker s i n the bargaining
unit. This requiremen t is found in Article 237 of the
Labor Code. However, the CBA was never ratified
by the covered employees.
However in Article 268 of the Labor Code it provides
that: 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
sixty-day 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
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.”
The last sixty (60) days immediately preceding the
expiration of the five-year CBA is referred to as the
freedom period. During the freedom period, a petition
for certification election can be filed but not before
nor after such period. Thus, no petition for
certification election may be filed before the onset of
the freedom period nor after such period.
Furthermore, Section 1, Rule VIII of the
Implementing Rules of the Labor Code (as amended
by Department Order No. 40-I-15), Paragraph 4: “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 is only 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 Mediator-Arbiter act
favorably on the petition. However, manifestation of
facts that would aid the Mediator-Arbiter in
expeditiously resolving the petition such as existence
of a contract-bar, one year bar or deadlock bar may
be considered. The contract-bar rule shall apply in
any of the following: (1) When there exists an
unexpired registered CBA; or (2) when there is no
challenge on the representation status of the
incumbent union during the freedom period.”
Thus in regards to the filing of the independent union
of the petition for the holding of a certification
election, their action is valid as they have filed within
the freedom period, already less than a month from
the expiration and garnered enough votes to support
their petition. The contract-bar rule does not apply in
regards to CBAs not registered according to law.
As to the employees who all accepted and enjoyed
the wage increase and other benefits, the unregistered
CBA is valid as despite not being formally ratified
considering that the employees have enjoyed its
benefits. Such was held in the case of Planters
Product v NLRC, G.R. 78524, January 20, 1989.
I hope this addresses your concerns.
Respectfully yours,
Ms. Tracy Sios-e
Dear Ms. Salazar,
A certified bargaining Union submitted to the
Dear Ms. Salazar,
A certified bargaining Union submitted to the employer a
employer a bargaining proposal for a Php1,000
monthly across-the-board wage increase per covered empl
monthly across-the-board wage increase per covered
unreasonable proposal in view of the prevailing poor busin
employee. Believing that it was an utterly
Union that it was useless to meet on such a proposal, and m
unreasonable proposal in view of the prevailing poor
agree to it.
business climate, the management told the Union that
If you were the Union's counsel, what legal action
it was useless to meet on such a proposal, and Mr. JMMarquez
management could not be compelled to agree to it.
If you were the Union's counsel, what legal action
may you take on thematter?
Mr. JMMarquez
Dear Mr. J.M. Marquez,
Thank you for your inquiry. I shall now attempt to
adequately address your concerns to the best of my
knowledge of the specific laws involved.
First and foremost, let it be remembered that it is the
joint responsibility of the employer and the employee
to establish terms and conditions of employment.
This is in accordance with the principle of co-
determination. In so establishing such terms and
conditions of employment, the employer and the
employee must take into consideration existing laws
and regulations. This is no less enshrined in Article
XIII Section 3of the 1987 Constitution.
In this jurisdiction, the Labor Code is replete with
provisions imposing the duty to bargain collectively.
Article 262 [252] specifically requires 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 to make concessions. Moreover,
the Labor Code of the Philippines provides in Article
263 [253] to wit:
When there is a collective bargaining agreement, the
duty to bargain collectively shall also mean that
neither party shall terminate nor modify such
agreement during its lifetime. However, either party
can serve a written notice to terminate or modify the
agreement at least 60 days prior to its expiration date.
It shall be the duty of both parties to keep the status
quo and to continue in full force and effect the terms
and conditions of the existing agreement during the
60 day period and or until a new agreement is
reached by the parties.
There is therefore no question that the duty to bargain
is imposed on both the employer and the employee.
So much so that under Article 248 the violation of
such duty to bargain collectively may be a form of
unfair labor practice. Hence, the law imposed the
mutual obligation to meet and convene for purposes
provided by law, one of which is to negotiate an
agreement on the subject of wage, which finds
application in your dilemma. Additionally the
employer has the obligation not to terminate or
modify the CBA during its lifetime. The failure or
refusal to meet and convene, evading the mandatory
subjects of bargaining or bad faith in bargaining and
gross violation of the CBA are forms of unfair labor
practice.
At the onset, it may be said that the employer does
have an obligation to collectively bargain with the
union. But however, in the very same article invoked,
it provides that such duty “does not compel either
party to agree to a proposal or require the making of a
concession.” Hence, such refusal and the rejection of
the economic demands of the union by the employer
is justified when his reasons are grounded on the fact
that he is operating at a loss, or on a low profit
margin, or in a depressed industry, for as long as he
continues to negotiate.
At the moment, the refusal of the employer to
implement the P1, 000 wage hike may be justified,
but his refusal to negotiate by reason of such grounds
should not be countenanced. Hence, the reason being
justified there is no illegality on management’s
refusal to meet such demands.
What then is the proper recourse?
When the subject is mandatory or non-mandatory that
caused a bargaining deadlock, the union may file a
notice of strike or the employer a notice of lockout. A
bargaining impasse over an issue exists where good
faith bargaining on the part of the parties has failed to
resolve the issue and there are no definite plans for
further efforts to break the deadlock. But the
deadlock doesn’t meant hat there is no more duty to
bargain, on the other hand it emphasizes such need.
Let it be note that the law recognizes bargaining
deadlock as a valid reason to declare a strike or
lockout which should be pursued to resolve the
impasse. On the alternative, a bargaining deadlock
may be resolved through arbitration through
voluntary arbitration as ruled in Manila Central Line
Corp v. Manila Central Line Free Workers Union.
To summarize, the refusal to bargain is in effect a
violation of the duty to bargain making it an unfair
labor practice. But when this is due to valid reasons
such as depressing business atmosphere, these may
be valid as this is bargaining in good faith. However,
the union may pursue other remedies to resolve the
bargaining deadlock such as thru strike, thru
grievance machinery or through voluntary arbitration.
I hope I have sufficiently answered you queries.
Sincerely,
Salazar, K.
___________________________________________
________________
Question:
Dear Team Parado,
The Company adopted a 3 day workweek which is a
flexible work arrangement expressly recognized in
the CBA whenever the company incurs business
losses. This was immediately protested by the
certified bargaining Union alleging that the
conditions for such shortened workweek were not
met. However, when the Union's demand for the
restoration to normal full week was denied by the
company, the Union filed a notice of strike with the
NCMB, alleging bargaining deadlock.
If you were the counsel for the Company, how will
you address the Union's claims?
Mr. JMMarquez
Answer:
16 February 2016
Dear MR. JMMarquez:
In response to your request, hereunder is our legal
opinion on the matter.
The facts as we gathered from your letter are as
follows: Your company adopted a three-day
workweek which is a flexible work arrangement
expressly recognized in the CBA whenever the
company incurs business losses. Upon its adoption,
the certified bargaining Union immediately protested
on the ground that the conditions for such shortened
workweek were not met. The Union subsequently
demanded for the restoration to normal full week
wherein you denied. This resulted to the notice of
strike with the NCMB alleging bargaining deadlock.
As the counsel of your company, we shall address the
Union’s claims as follows:
I. THERE WAS NO BARGAINING DEADLOCK
In the case of San Miguel Corporation vs NLRC, GR
No. 99266, March 2, 1999, a collective bargaining
deadlock is defined as “the situation between the
labor and the management of the company where
there is failure in the collective bargaining
negotiations resulting in a stalemate.” In the present
case, because there was already a collective
bargaining agreement (CBA) concluded by the
parties, there was no more bargaining deadlock to
speak of.
II. A VIOLATION IN THE CBA CONCERNING A
COMPRESSED WORKWEEK IS NOT A
GROUND TO HOLD A STRIKE.
The main controversy of your query revolves around
the implementation and interpretation of the CBA
with respect to the conditions for such shortened
workweek which were allegedly not met.
Section 5, Rule XXII of the Implementing Rules and
Regulations of the Labor Code provides that violation
of collective bargaining agreements, except flagrant
and/or malicious refusal to comply with its economic
provisions, shall not be considered unfair labor
practice and shall not be strikeable. Herein, the issue
involves a provision in the CBA which does not
constitute a flagrant and/or malicious refusal to
comply with its economic provisions. Therefore, it
likewise does not constitute an unfair labor practice
which may warrant a strike.
III. REMEDY: PREVENTIVE MEDIATION
Pacific measures or remedies must first be exhausted
before employees may stage a strike. With that, the
proper remedy should have been a resort to the
Voluntary Arbitrator who has the original and
exclusive jurisdiction to hear and decide unresolved
grievances arising from the interpretation and
implementation of the CBA. For failing to exhaust all
the steps in the grievance machinery, the Union had
no valid grounds for strike.
Lastly, your denial to revert back to the normal
workweek is valid because it is a management
prerogative, provided it is done in good faith and
business losses are substantiated.
We hope that we have addressed the matters for
which you seek guidance from us. Should you have
any questions regarding the matter, please do not
hesitate to inform us.
Thank you.
Respectfully yours,
PPP Law Office
Follow-up question:
Dear Team Parado,
If there was a grievance, why resort directly to
voluntary arbitration?
Mr JMMarquez
Follow-up answer:
Dear Mr. JMMarquez,
We are very sorry we jumped into conclusions in our
previous legal opinion.
The measure taken by your employees was improper,
they should have firstly exhausted all the remedies
available under the grievance machinery, as
established by the Collective Bargaining Agreement
(CBA). Article 274 of the Labor Code Provide that
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. Concomitantly, a resort to the
grievance machinery as provided for in the CBA
must be had as the law deems it mandatory.
Nonetheless, Article 273 of the same law provides
that all grievances submitted to the grievance
machinery which are not settled within seven (7)
calendar days from the date of its submission shall
automatically be referred to voluntary arbitration
prescribed in the Collective Bargaining Agreement.
Resultantly, the employees should have exhausted all
means to settle the grievance prior to resorting to the
voluntary arbitrator.
Therefore, for failing to exhaust all the steps in the
grievance machinery, the Union had no valid grounds
for strike.
Thank you for your continued patronage and we hope
to have answered all your queries.
Respectfully yours,
PPP Law Office
Question:
Dear Ms. Parado,
San Carlos University ("University") has two labor
rank-and-file unions, namely, Union A and Union B.
Union A protested the special assessment recently
made by Union B which covers all employees in the
rank-and-file bargaining unit. Because of the dispute,
Union A declared a strike. When the University
sought to have their strike declared illegal, Union A
unconditionally offered to return to work. While the
University is ready and willing to accept all strikers,
the University however refused to accept all Union
A's officers and members who carried placards,
criticizing the Management for its neutrality. Did the
University act in accordance with law? Please advise.
Mr. JMMarquez
Answer:
March 1, 2016
Dear JMMarquez:
Thank you for availing of our services.
From what we gather, Union A held a strike by
reason of the special assessment made by Union B.
Thus, when the San Carlos University (“University”)
sought the strike to be illegal, the University refused
the acceptance of Union A’s members and officers
despite Union A’s unconditional offer to return to
work.
In response therefore to your request, hereunder is
our legal opinion on the matter:
I. The Issue: An Inter-Union Dispute
Clearly the issue on the special assessment is an
inter-union dispute — a dispute between and among
labor unions, herein between Union A and Union B.
"Inter-Union Dispute" refers to any conflict between
and among legitimate labor unions involving
representation questions for purposes of collective
bargaining or to any other conflict of dispute between
legitimate labor unions.
II. Legality of the Strike
Therefore, as the dispute involves an inter-union
dispute between Union A and Union B, such matter
is a non-strikeable issue as provided for under Art.
278 of the Labor Code which explicitly states that:
“. . . no labor union may strike and no employer may
declare a lockout on grounds involving inter-union
and intra-union disputes.”
Consequently, as the issue is a non-strikeable issue,
the strike held by Union A is an illegal strike.
III. Consequences of an Illegal Strike
Article 279 of the Labor Code provides that: “Any
union officer who knowingly participates in the
commission of illegal acts during a strike may be
declared to have lost his employment status:
Provided, that mere participation of a worker in a
lawful strike shall not constitute sufficient ground for
termination of his employment.
A. Union Members
Thus, the mere participation of a union member in a
legal or illegal strike is not a ground for his
termination. However, when he commits illegal acts
during a strike, he may be declared to have lost his
employment.
Herein, there is no proof that these union members
committed illegal acts during the strike, they cannot
therefore be considered to have lost their employment
and thus, the University cannot refuse their offer to
return to work.
B. Union Officers
However, it is different in the case of union officers.
Article 279 of the Labor Code explicitly states that
any union officer who knowingly participates in an
illegal strike may be declared to have lost his
employment. Herein, the union officers of Union A
knowingly participated in an illegal strike, that is by
holding a strike by reason of an inter-union dispute
which is non-strikeable, and thus the law mandates
that a union officer may be terminated from
employment.
IV. Procedural Requirements
However, despite, an employer’s declaration that a
striker “has lost his employment status” is a mere
confirmation by the employer of an illegal act
initiated by the employee himself that does must not
do away with due process. Hence, due process – a
valid cause and valid procedure – must be observed.
Therefore, the employer must comply with the twin
notice requirement before dismissing the union
officers of Union A.
Thus, the University did not act in accordance with
law in refusing to accept the union members and
union officers of Union by reason of its non-
compliance with the law – both substantive and
procedural.
I hope to have answered all your queries.
Respectfully yours,
Shenna Jane Tan Parado
Follow-up Question:
Dear Ms Parado,
Special assessment to the members of the bargaining
unit which was protested by Union A on behalf of its
members. Is it an inter-union dispute?
Mr JMMarquez
Follow-up Answer:
Dear JMMarquez,
The special assessment to the bargaining unit which
was protested by Union A is an INTER-union
dispute.
A special assessment is a payment used for a special
purpose as compared to dues which are defined as
payments to meet the union’s general and current
obligations. (Azucena, The Labor Code Volume 2, p.
236)
In relation thereto, Art. 259 (e) of the Labor Code
provides that: “Employees of an appropriate
collective 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
agreement.”
Consequently, in the facts presented, as neither Union
A nor Union B is considered as the Sole and
Exclusive Bargaining Agent in the bargaining unit,
neither may act as a representative of its members for
the purpose of collective bargaining. Necessarily,
there would be no Collective Bargaining Agreement
to speak of to which the non-union members
benefited from.
Therefore, proceeding from this premise, there would
be no possibility of the existence of intra-union
dispute. To note, an intra-union dispute refers to any
conflict between and among union members,
including grievances arising from any violation of the
rights and conditions of membership, violation of or
disagreement over any provision of the union’s
constitution and by-laws, or disputes arising from
chartering or affiliation of union. Contrastingly, an
Inter-union dispute has been defined to refer to any
conflict between and among labor unions involving
representation questions for purposes of collective
bargaining or to any other conflict or dispute between
legitimate labor unions.
Therefore, herein, there can be no valid special
assessment that Union B may assess to the whole
bargaining unit, it not being the Sole and Exclusive
Bargaining Agent. Consequently, its proposal of a
special assessment was invalid. Therefore, Union A
may contest such act by Union B. Thus, such contest
by Union A cannot be considered as an intra-union
dispute as it involves not a conflict between the union
and its members but between two unions, Union A
and Union B.
Consequently, the special assessment to the
bargaining unit which was protested by Union A is an
INTER-UNION dispute which is a non-strikeable
issue.
Question:
Dear Ms. Pimentel,
The faculty members of USC school, run by a
religious order, converted their faculty club into a
labor union and affiliated the same with a federation
of teachers unions. Claiming it is a non-stock, non-
profit organization, USC school refused to recognize
the Union and demanded that the local Union should
disaffiliated with the mother federation and revert
itself back to a mere faculty club. Did the school act
legally?
Mr. JMMarquez
Answer:
March 4, 2016
Dear MR. JMMarquez:
Greetings!
In response to your request, here is my legal opinion
on the matter.
The facts as I gathered from your letter are as
follows:
USC is a non-stock, non-profit educational
institution. The faculty members of USC, converted
their faculty club into a labor union and affiliated the
same with a federation of teachers union. Claiming it
is a non-stock, non-profit organization, USC refused
to recognize the Union and demanded that the local
Union should disaffiliate itself with the mother
federation and revert itself back to a mere faculty
club. You now seek my guidance on whether the
school acted legally.
My legal opinion is that the school did not act legally.
A labor union may be formed either by registering as
an independent union or by creating a union as a
local or chapter. A local union may affiliate with or
disaffiliate from a federation. This is an exercise of
the right of association enshrined in no less than the
Bill of Rights of the 1987 Constitution.
The right to form a local union, being a fundamental
right, can be exercised even in an establishment
which is non-stock and non-profit because the law
does not qualify that an establishment be a stock or
for profit before it can recognize a local union.
Furthermore, the issue of affiliation or disaffiliation
is an intra-union dispute that must be resolved in an
action at the instance of the federation or the union or
a rival labor organization. The employer is not a
party to the issue. This is in accordance with the
ruling of the Supreme Court in Cirtek Employees
Labor Union-FFW vs Cirtek Electronics, GR No.
190515, June 6, 2011.
Applying the aforementioned principles in your case,
USC cannot refuse recognition of the local Union on
the basis that it is a non-stock and non-profit
organization. Being a fundamental right, the right to
associate is not subject to the condition that an
establishment be a stock or for profit. In the same
way, USC cannot raise the defense that it is a non-
stock, non-profit institution.
Lastly, the issue of affiliation or disaffiliation of the
USC faculty Union is an intra-union dispute that
must be resolved in an action at the instance of the
federation teacher’s Union or the faculty Union itself.
USC, being the employer is not a party to the issue of
affiliation or disaffiliation. Hence, it has no standing
to question the affiliation of the local Union.
To sum up, USC cannot refuse to recognize the local
Union and demand that the latter should disaffiliate
with the mother federation and revert itself back to a
mere faculty club. The school, nevertheless, did not
act legally.
I hope that I have addressed the matters for which
you seek guidance. Should you have any questions
regarding the matter, please do not hesitate to inform
me.
Thank you.
Respectfully yours,
Jenny Ann A. Pimentel
Follow-up Question:
Ms Pimentel,
If it did not act legally, did it commit any punishable
offense?
Mr JMMarquez
Follow-up Answer:
March 5, 2016
Dear MR. JMMarquez:
In your given case, USC, the employer did not act
legally, thus, it committed an offense of unfair labor
practice which is punishable by law.
Article 257 of the Labor Code of the Philippines, as
renumbered, makes it unlawful “for any person to
restrain, coerce, discriminate against or unduly
interfere with employees and workers in their
exercise of the right to self-organization. Such right
shall include the right to form, join, or assist labor
organizations…” This provision recognizes that no
person, employer or non-employer, may abridge the
rights of the employees to self-organization,
otherwise, he can be liable for unfair labor practice
(ULP).
Unfair labor practice may be committed by the
employer in several ways. Article 259 of the Labor
Code enumerates the instances when ULP may be
committed:
(a) To interfere with, restrain or coerce employees in
the exercise of their right to self-organization;
xxx
(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;
xxx
Given these provisions of law, it is worth noting that
the right of self-organization and the right of
association are fundamental rights of the employees.
Any abridgment of these rights by the employer is
considered as an unfair labor practice which is
punishable by law. Accordingly, the refusal of USC
to recognize the local Union, and its assertion that the
local Union should disaffiliate itself with the mother
federation is a blatant violation of the rights of the
employees to organize and associate. This warrants a
claim for unfair labor practice against USC grounded
on Article 259 (a) and (d) of the Labor Code.
Clearly, USC, in interfering and restraining in the
exercise of the employees’ right to self-organization,
and in interfering with the formation or
administration of their labor organization is liable for
unfair labor practice.
I hope I have addressed your query. Thank you.
Respectfully yours,
Jenny Ann A. Pimentel
___________________________________________
___________________________________________
____________________________
Question:
Dear Ms. Pontanar,
USC is a private educational institution, which has 3
departments, the elementary, high school and college,
all of which are controlled by one Board of Trustees,
serviced by one cashier and on registrar. It has a full
complement of 500 teachers, who are paid on hourly
basis. On the other hand, USC has a complement of
1000 non-teaching personnel, who are paid on
monthly basis.
In one public assembly, all the school's personnel,
both teaching and non-teaching decided to form one
independent Union. After it has been issued a
certificate of registration, the Union filed a petition
for certification election, to represent all these school
personnel.
If you were the Med-Arbiter, will you give due
course to the petition and order the holding of only
one certification election for all the school personnel?
Kindly advise and guide us.
Mr. JMMarquez
Answer:
March 8, 2016
Dear JMMarquez:
Thank you for trusting me with your query.
The facts, as I’ve gathered from you are as follows:

USC is a private educational institution with three
departments of elementary, high school and college,
controlled by the Board of Trustees and serviced by
one cashier and one registrar. 500 teachers are paid
on an hourly basis. Non-teaching personnel are paid,
on the other hand, on a monthly basis.
Hereinafter, all of these personnel decided to form
one independent Union. It had been granted a
certificate of registration, and thereafter, the Union
filed a petition for certification election, to represent
all these school personnel.
Now you asked me to decide the matter as if I were
the Med-Arbiter.
I will give due course to the petition and order the
holding of only one certification election for all the
school personnel.
Under the law, an independent union refers to a labor
organization operating at the enterprise level that
acquired legal personality through independent
registration under Article 234 of the Labor Code and
Rule III, Section 2-A of these Rules. And corollary to
that, it is the Med-Arbitration Unit that conducts
hearings and decides certification election or
representation cases, inter/intra-union and other
related labor relations disputes.
A Med-Arbiter refers to an officer in the Regional
Office or in the Bureau authorized to hear and decide
representation cases, inter/intra-union disputes and
other related labor relations disputes, except
cancellation of union registration cases.
Now, the grounds for the dismissal of the petition are
found in Section 14, DO 40-F-03. Of the eight
grounds, none is present in your situation.
Additionally, a prohibited ground to dismiss the
petition is alleged inclusion of disqualified
employees in a union.
In the case of Holy Child Catholic School vs. Tomas
G.R. No. 179146; July 23, 2013, the Med-Arbiter
denied the petition because of the co-mingling of
rank and file and supervisory employees on the
premise that” a labor organization composed of both
rank-and-file and supervisory employees is no labor
organization at all. It cannot, for any guise or
purpose, be a legitimate labor organization. Not being
one, an organization which carries a mixture of rank-
and-file and supervisory employees cannot possess
any of the rights of a legitimate labor organization,
including the right to file a petition for certification
election for the purpose of collective bargaining.”
But in your case, there is no co-mingling of the rank
and file and supervisory employees.
Now, a certification election proceeding directly
involves two (2) issues namely: (a) the proper
composition and constituency of the bargaining unit;
and (b) the validity of majority representation claims.
It is therefore incumbent upon the Med-Arbiter to
rule on the appropriateness of the bargaining unit
once its composition and constituency is questioned.
Section 1 (q), Rule I, Book V of the Omnibus Rules
defines a "bargaining unit" as 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. This definition has provided the
"community or mutuality of interest" test as the
standard in determining the constituency of a
collective bargaining unit.
In University of the Philippines vs. Ferrer-Calleja,
211 SCRA 451 and as present in your case, the
employees of petitioner may be categorized into (2)
general classes: one, the teaching staff; and two, the
non-teaching-staff. It would seem obvious that the
teaching staff would find very little in common with
the non-teaching staff as regards responsibilities and
function, working conditions, compensation rates,
social life and interests, skills and intellectual
pursuits, etc. These are plain and patent realities
which cannot be ignored. These dictate the separation
of these two categories of employees for purposes of
collective bargaining.
Though there are differences in the nature of work,
hours and conditions of work and salary
determination between the teaching and non-teaching
personnel of USC, I do not agree that these
differences are substantial enough to warrant the
dismissal of the petition.
The "inappropriateness of the bargaining unit sought
to be represented is not a ground for the dismissal of
the petition." And as I’ve said, out of the eight
grounds for when a Med-Arbiter may dismiss the
petition for certification election, none is present in
your case.
The Supreme Court ordered the “non-academic rank-
and-file employees of U.P. to constitute a bargaining
unit to the exclusion of the academic employees of
the institution”, but did not order them to organize a
separate labor organization. In the U.P. case, the
Supreme Court did not dismiss the petition and
affirmed the order for the conduct of certification
election among the non-academic personnel of U.P.,
without prejudice to the right of the academic
personnel to constitute a separate bargaining unit for
themselves and for the All U.P. Workers Union to
institute a petition for certification election.
I hope I have answered your query.
Respectfully yours,
Katrina N. Pontanar
Q: The employees of ABC Company, a wholly-
owned subsidiary of a government-owned universal
bank, formed an independent Union and registered it
with the Bureau of Labor Relations. Can we seek
your advice and opinion whether these workers can
exercise the right to self-organization and to
collective bargaining?
A: If the subsidiary of the government-owned
universal bank does not have an original charter, its
employees have the right to collective bargaining. If
it has an original charter, the employees cannot
bargain collectively. The reason for this difference is
that the salaries of those working in the civil service
(i.e. those with original charters) are already fixed by
law and thus cannot be subjected to collective
bargaining.
Art. 254 of the Labor Code (as renumbered), first
paragraph, provides that:
"Employees of government corporations established
under the Corporation Code shall have the right to
organize and to bargain collectively with their
respective employers. All other employees in the
civil service shall have the right to form associations
for purposes not contrary to law."
---
Q: Del Monte Company has been requiring its
workers to render daily overtime work of 5 hours for
the last six months. The certified bargaining Union
requested the management to cut off overtime work
and instead allow some of the workers to work on
their rest days and holidays. But management insisted
that overtime work was necessary to avoid
irreparable losses through spoilage of the fruits which
must be immediately canned before the workers leave
the premises. One Friday in order to demonstrate
their protest, all the employees led by the Union's
officers refused to work overtime and left the plant
after working for eight hours.
What action may the management take against the
employees? Please advise.
A: The company may file a Petition for Injunction
with the NLRC against the erring employees.
According to the Labor Code, specifically Article
225-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 favour of such party. Thus, the
management may file a Petition for Injunction against
the erring employees.
The employees engaged in overtime boycott and
work slowdown, which is used as a means to coerce
the company to yield to its unreasonable demands.
This amounts to an illegal strike. In the case of
Interphil Lab Employees Union vs Interphil Lab
(2001), overtime boycott and work slowdown were
done in violation of the employees’ CBA with their
company since there was a stipulation prohibiting the
union or employee during the existence of the CBA
to stage a strike or engage in slowdown or
interruption of work. Moreover, citing Ilaw at Buklod
ng Manggagawa vs. NLRC, the SC reiterated that the
workers’ ‘’concerted refusal to adhere to the worker
schedule in force is a slowdown, an inherently illegal
activity, essentially illegal even in the absence of a
no-strike clause in a collective bargaining contract.’’
---
Q: During the collective bargaining negotiations, San
Carlos University offered a wage increase of Php1.00
per day to the covered employees and rejected all the
other economic demands of the Union. This
prompted the Union to file a notice of strike alleging
commission of unfair labor practice as management
was not acting in good faith. To strengthen their
protest, the Union officers refused to attend the
conciliation and mediation conferences before the
NCMB. On the 20th day from the date it filed the
notice of strike, and 7 days after it had filed its strike
vote, the Union went on a peaceful and orderly strike.
Did the Union act in accordance with law? Please
advise.
A: A strike (or lockout), to enjoy the protection of
law, must observe certain procedural requisites.
These are mentioned in Article 278 of the Labor
Code (as renumbered) and the implementing rules:
filing of notice of strike with the appropriate branch
of NCMB by a duly registered legitimate labor union,
the notice must be grounded on bargaining deadlock
and/or unfair labor practice, the NCMB then will
issue a notice of conciliation and mediation
conference, observance of cooling-off period of 15
days for unfair labor practice and 30 day period for
bargaining deadlock, then must followed by a
conduct of strike vote and the submission of strike
vote report to the NCMB at least 7 days prior to the
intended strike and the strike must be conducted in a
lawful manner. Failure to comply with the aforesaid
requirements makes the strike illegal.
Basing on the circumstances of the case, it was
apparent that there was bargaining deadlock between
San Carlos University and the Union for failure to
settle the differences, as the former rejected all other
demands of the union and merely offered a wage
increase of Php1.00. That as much as possible in
cases of bargaining deadlock, the employer and the
union should mediate and conciliate in order for them
to settle the differences. Hence, that filing of notice to
strike due to bargaining deadlock, a cooling off
period must be observed, a time gap is required to
cool the tempers between the filing of notice and the
actual execution of the strike. The cooling-off period
is 30 days in case of bargaining deadlock. As it was
apparent in the facts of the case that, the union had
staged their strike on the 20th day from the time they
filed their notice of strike, hence the union falls
squarely within the predicament of non-observance
30 day cooling-off period before holding a strike. As
such the strike of the union was illegal.
Notwithstanding, that the union officers refused to
attend the conciliation and mediation conference
before the NCMB and the Union went on a peaceful
and orderly strike. It is essential that, the NCMB,
upon receipt of the notice of strike and during the
cooling-off period mediates and conciliates the
parties and if one of the parties fail to appear in the
conciliation and mediation conference the strike
becomes illegal because of failure to follow the
procedural requirements. As expostulated in the case
of National Federation of Sugar workers v Ovejera
GR No. 59743, the court held that non-observance
procedural requirements will render the strike illegal.
Thus, disregarding the grievance procedure or refusal
of the union officers to attend the conciliation
mediation conference may justify a conclusion that
the strike was held prematurely and the union did not
act in accordance with law, hence, the strike was
illegal.
---
Q: After several sessions, the company and the
certified bargaining Union's respective negotiating
panels entered into a deadlock as regards the
economic provisions of the CBA. During their lunch
break, the members of the Union started to picket the
ingress to and egress from the company's premises,
which blocked the office of another company which
is beside the premises. If you were the counsel of the
other company, what is your remedy against the
Union?
A: As a counsel of the other company, my remedy
against the union is to file an injunction under the
Innocent Bystander Rule. Generally, cases of illegal
picketing are within the jurisdiction of the NLRC if
there exists an Employee-employer relationship
between the company concerned and the picketing
employees. Thus, an injunction may be properly
prayed for before the NLRC against the picketing
employees. Hence, the regular courts are without
authority to issue injunction orders in cases involving
or originating from labor disputes even if the
complaint was filed by non-striking employees and
the employer was also made a respondent to the
action or even if the complainant is a customer of the
strike-bound employer or a sister company of the
strike-bound employer.
However, regular courts may issue injunction to
protect the interest of neutral employers in common
situs picketing. as shown in the case of Republic
flour Mill workers Association v Reyes, that the
Supreme Court upheld the validity of the Injunction
prohibiting the union from blocking the entrance
locate within the compound or premises of the
company with which the union had a dispute. This is
a case that illuminated the Innocent Bystander rule.
In this case, it is necessary to protect the rights of the
third parties or innocent by standers, such that this
rule provides that picketers may be enjoined from
picketing establishment with whom they have no
employment relation dispute.
As provided in the instant case, the other company is
considered as an innocent bystander, as such no
existence of employee-employer relationship, hence
the filing of injunction lies with the Regular Courts
and not with the NLRC.
---
Q: The Secretary of the DOLE certified the strike in
a tire manufacturing company to the NLRC for
compulsory arbitration and ordered the striking
employees to report back to work. The Union refused
to obey, prompting the company to file a complaint
for illegal strike against defiant officers and members
of the Union.
If you were the counsel for the Union officers and
members, what defense/s may you interpose?
A: Two defenses are available: the lack of notice of
the DOLE’s Secretary’s Assumption Order and the
fact that the industry is not indispensable to national
interest.
First, non-compliance with the notice requirement
was declared by the Supreme Court as a violation of
the constitutional right to due process. In the case of
FEU-NRMF vs. FEU-NRMFEA-AFW (GR. No.
168362, Oct. 12, 2006), the Supreme Court ruled that
compliance with the requirements of service of Order
of the DOLE Secretary effectively ensures that the
notice desired under the constitutional requirement of
due process is accomplished. Due process here would
demand that the Union be properly notified of the
Assumption of Jurisdiction Order of the Secretary of
Labor enjoining the strike and requiring its members
to return to work. Hence in this case, since the Order
of the DOLE Secretary was merely posted in
conspicuous places in the hospital-company, the rules
on proper service of notice were violated and the
strike conducted by the Union after the DOLE
Secretary issued the Order was declared valid.
Second, the tire manufacturing company is not
indispensable to national interest. Art. 278 of the
Labor Code (as renumbered) explicitly provides that
the power of the DOLE Secretary to assume
jurisdiction over a labor dispute causing or likely to
cause strike pertains only to an industry indispensable
to national interest. In this vein, DOLE DO 40-H-13
(amending RULE XXII of the Implementing Rules of
Book V of the Labor Code) enumerates the industries
indispensable to national interest, as follows:
1) Hospital sector
2) Electric power industry
3) Water supply services, to exclude small water
supply services such as bottling and refilling stations
4) Air traffic control; and
5) Such other industries as may be recommended by
the National Tripartite Industrial Peace Council.
The tire manufacturing company does not fall under
any of the above. Thus, the DOLE Secretary having
assumed jurisdiction over an industry which is not
indispensable to national interest, the assumption
order was void. In turn, the strike conducted by the
Union was legal.
Dear Mr. X,
USC is a private educational institution, which has 3
departments, the elementary, high school and college,
all of which are controlled by one Board of Trustees,
serviced by one cashier and on registrar. It has a full
complement of 500 teachers.
I have convinced my fellow teachers that the best
way to secure more benefits and better working
conditions is to formally organize a Union. We are
however undecided as to whether to form a single
Union for the entire faculty staff or a separate Union
for each department.
Kindly advise and guide us.
Mr. JMMarquez
Dear JMMarquez,
Greetings!
This is in connection to your letter. You have stated
that you are a teacher of USC, a private educational
institution, with 500 teachers which has 3
departments: elementary, high school and college.
All of which are controlled by one Board of Trustees,
serviced by one cashier and one registrar; and that
you have convinced them to form union but
undecided whether to form a single union for the
entire faculty staff or separate union for each
department.
I advise you to form a single Union for the entire
faculty staff, instead of a separate Union for each
separate department.
The Labor Code and its implementing rules provide
that "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." (Art. 253 of Labor
Code, as renumbered)
Sec 1(d), Rule I, Book V of the Omnibus Rules
defines "bargaining unit" as 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 groupings
within such employer unit. This is the
COMMUNITY OR MUTUALITY OF INTEREST
TEST.
In order to determine the constituency of a collective
bargaining unit, the Supreme Court laid down the
COMMUNITY OR MUTUALITY OF INTEREST
TEST, it provides that " the basic test of an asserted
bargaining unit’s acceptability is whether or not it is
fundamentally the combination which will best
assure to all employees the exercise of their
collective bargaining rights. The application of this
test may either result in the formation of an employer
unit or in the fragmentation of an employer unit.
(Holy Child Catholic School vs Hon. Patrica Sto.
Tomas, G.R. No. 179146, July 23, 2013)
In your case, there exists two classes: non-teaching
class (cashier and registrar) and the teaching class
(500 teachers including you). Applying the
COMMUNITY OR MUTUALITY OF INTEREST
TEST, the teachers, although separated by 3
departments (elementary, high school and college),
have similar and mutual interests with regards
responsibilities and functions, working conditions,
compensation rates, social life and interests, skills
and intellectual pursuits, etc. Hence, it is only proper
to form a single union, instead of a separate union for
each department.
Hoping that this has addressed your concern. If you
have any concern, please don't hesitate to contact our
firm.
Best regards,
Dear Mr. X,
Because Atty. Walde won a big case for the rank-
and-file Union at the USC school of law, he became
very popular with the Union members, and was
persuaded to run as Union president but this was
opposed by Atty. Randy, the incumbent Union
president since Atty. Walde was not an employee of
USC. This notwithstanding, the Union members in a
general assembly overwhelmingly by secret ballot,
declared Atty. Walde qualified, and elected him as
Union President.
Do you agree with the union's decision? If not, what
remedy is available to contest the election of Atty.
Walde?
Mr. JMMarquez
Dear Mr. JMMarquez,
Good day!
Thank you so much for the trust and confidence.
In line with your problem, here is my legal advice:
First of all, I do not agree with the decision of the
union in electing Atty. Walde because it is patently
illegal. It is not valid becuase Atty. Walde is not an
employee of the USC school of law where he was
elected as union president. As clearly provided under
the implementing rules of the Labor Code, no person
who is not an employee or worker of the company or
establishment where an independent registered union,
affiliate local, or chapter of a labor federation or
national union operates shall henceforth be elected or
appointed as an officer of such union, affiliate or
chapter. (Implementing Rules, Book V, Rule II,
Section 39(f) ) In short, Atty. Walde should be an
employee of USC for him to be elected as union
president, because he miserably complied with the
legal requirement to be qualified, therefor, his
election is as president is invalid.
Second, since the election of Atty. Walde is invalid
as he is not qualified hence,his election as president
of the union made in the general assembly which
declared him as qualified by overwhelming majority
is invalid. The proper remedy to contest his election
is an expulsion proceeding before the Bureau of
Labor Realtion to remove Atty. Walde as he is not
qualified to be elected as president of the union.
(Rule 11, implementing rules of book V)The BLR is
the proper body sice this is an intra union dispute.
Hence a petition at Regional Office where the union
is registered maybe filed by member specially
concerned members may file the petition. With this
proceeding, Atty. Walde will be removed because he
is not qualified for the election as president of union.
Again, thank you so much and may this legal advise
helped you.
Yours,
Dear Team xxx,
The Company adopted a 3 day workweek which is a
flexible work arrangement expressly recognized in the
CBA whenever the company incurs business losses.
This was immediately protested by the certified
bargaining Union alleging that the conditions for such
shortened workweek were not met. However, when
the Union's demand for the restoration to normal full
week was denied by the company, the Union filed a
notice of strike with the NCMB, alleging bargaining
deadlock.
If you were the counsel for the Company, how will you
address the Union's claims?
Mr. JMMarquez
Dear Mr. JMMarquez,
This has reference to your query on how your
Company will address its Union’s claims.
Based on your information, your Company adopted a
3 day workweek which is a flexible work arrangement
expressly recognized in the CBA whenever the
company incurs business losses. This was immediately
protested by the certified bargaining Union alleging
that the conditions for such shortened workweek were
not met. However, when the Union's demand for the
restoration to normal full week was denied by the
company, the Union filed a notice of strike with the
NCMB, alleging bargaining deadlock.
Under Department Advisory No. 02 Series of 2009,
Compressed workweek is a flexible work arrangement
which refers to one where the normal workweek is
reduced to less than six (6) days but the total number
of work-hours of 48 hours per week shall remain. The
normal workday is increased to more than eight hours
but not to exceed twelve hours, without corresponding
overtime premium.
Adoption of the compressed workweek is a
management prerogative and reversion shall be
considered a legitimate exercise of management
prerogative, provided that the employer shall give the
employees prior notice of such reversion within
reasonable time.
In your case, the adoption of the 3-day workweek is
valid provided that the foregoing provisions in the D.O.
are followed. Furthermore, in case of differences of
interpretation in the administration of compressed
workweek, the differences shall be treated as
grievances under the applicable grievance mechanism
of the firm.
The ground relied upon by the union which is
bargaining deadlock is non-existent, therefore, is non-
strikeable.
In the case of San Miguel VS NLRC, the Supreme
Court ruled that collective bargaining deadlock is non-
existent for failing to exhaust all the steps in the
grievance machinery and arbitration proceedings
provided in the Collective Bargaining Agreement.
Republic Act 6715 now provides for the mandatory
use of the grievance machinery as a prerequisite step
to voluntary arbitration of disputes arising from CBA
interpretation and implementation, as well as those
disputes arising from the interpretation and
enforcement of company personnel policies.
Since the issue is on the alleged violation of the
conditions of the compressed workweek and there is
an existing CBA that recognized such flexible work
arrangement, the proper procedure should be through
the grievance machinery. In your case, the union
directly filed a notice of strike with the NCMB without
first resorting to the grievance machinery. Therefore,
for failure to exhaust this remedy, the collective
bargaining deadlock is non-existent and so, the notice
of stike must fall.
Truly yours,
Team xxx
Dear xxx,
After faithfully complying with all the prescribed
requirements, the certified bargaining Union went on
strike for unfair labor practices on the part the
manufacturing company. While conducting the strike,
some Union officers blocked the ingress to and egress
from the company's plant, locked the gates, and threw
stones at the company's vehicles. This prompted the
company to bring to the factory replacements for these
strikers since production must continue in order to
meet pending orders from customers. Did
management act in accordance with law? Please
advise
Mr. JMMarquez
Dear Mr. JMMarquez,
Good day.
This is in response to your query whether the act of
management is in accordance with law after you
brought to the factory replacements for these strikers
in order to continue meeting pending orders from
customers after strike was conducted where some
Union officers blocked the ingress to and egress from
the company's plant, locked the gates, and threw
stones at the company's vehicles.
We are in opinion that your company’s act is legal.
Under the Labor Code, any union officer who
knowingly participates in an illegal strike and any
worker or union officer who knowingly participates in
the commission of illegal acts during a strike may be
declared to have lost his employment status: Provided,
That mere participation of a worker in a lawful strike
shall not constitute sufficient ground for termination
of his employment, even if a replacement had been
hired by the employer during such lawful strike.
For Union Member, mere participation in a lawful
strike does NOT constitute sufficient ground for
termination of employment unless he commits an
illegal act (e.g. destruction of property) during a strike
may be dismissed from employment, regardless of
whether the strike itself is legal or not.
Here, albeit the prescribed requirements to stage a
strike are complied, some Union officers committed
illegal acts during the strike such as locking the gates,
throwing stones at the company’s vehicles and
blocking the ingress to and egress from the company’s
plant. In consequence of such action by some Union
Officers, they may be dismissed from employment,
regardless of whether the strike itself is legal or not.
As to the issue of replacement during strike, in Norton
Harrison Company vs Norton & Harrison Co., L-
18461, February 10, 1967, the Supreme Court held
that when the company direly needed their services
during the strike, consideration must be noted. First,
the said other workers must be deemed to have
accepted their employment as replacements with the
knowledge that the same is subject to the consequence
of the labor dispute between the strikers and the
company. Second, it is not inequitable for them to be
made to yield their position to those finally ruled to be
with right to occupy the same.
In other words, the replacement did not gain
permanent right to the position they held. Moreover,
the employer cannot successfully urge as a defense
that the striking employee’s position has been filled by
replacements. If no job sufficiently comparable to
previous, the employer must discharge the
replacement employee, to restore the striking worker
to his own comparable position. So for those strikers
who committed illegal acts during the strike are
deemed terminated and those who did not can validly
go back to work on the basis as mentioned above.
Thank you.
Truly,
xxx
Dear xxx,
During the conciliation meetings held before the
NCMB to settle an impasse in bargaining, the Union
requested management to postpone payment of any
merit increase until the conclusion of a bargaining
contract. However, management went ahead and paid
merit increases to around 50 employees, 30 of whom
were not members of the bargaining Union. Did
management act legally?
Mr. JMMarquez
Dear Mr. JMMarquez,
This has reference to your query on whether the
management acted legally.
According to the facts you stipulated, during the
conciliation meetings held before the NCMB to settle
an impasse in bargaining, the Union requested
management to postpone payment of any merit
increase until the conclusion of a bargaining contract.
However, management went ahead and paid merit
increases to around 50 employees, 30 of whom were
not members of the bargaining Union.
It is the opinion of our law firm that payment of the
merit increases before the conclusion of a bargaining
contract is illegal.
Under the Labor Code of the Philippines, one of the
grounds for unfair labor practice by the employer in
bargaining is evading or refusal to negotiate a
mandatory subject of bargaining. A subject mandatory
to collective bargaining must materially or
significantly affect the terms or conditions of
employment. However, conditions of employment
include not only what an employer has already granted,
but also what it has announced it intends to grant.
Among others, examples of matters considered as
mandatory subjects of bargaining include merit
increases.
Under US Jurisprudence, McClatchy Newspapers, 321
NLRB 1386, 1391 (1996), ordinarily an employer may
establish new terms and conditions of employment set
forth in its bargaining proposals. However, an
exception exists where clauses confer on an employer
“broad discretionary powers that effect recurring
unilateral decisions regarding changes in the
employee’s rates of pay. Allowing the employer to
implement upon impasse a clause that reserved the
right to unilaterally exert unlimited managerial
discretion over future pay increases would be so
inherently destrucitive of the fundamental principles
of collective bargaining that it would not be sanctioned
as part of a doctrine created to break impasse and
restore active collective bargaining.
Merit increases, being a mandatory subject of
bargaining involving application by the management
of “unlimited managerial discretion over future pay
increases without explicit standards or criteria” could
not have been implemented without bargaining over
the method of implementation. Such would be
antithetical to the statutory system of collective
bargaining meant to promote industrial stability.
Therefore, in your case, your payment of merit
increases before the conclusion of a bargaining
contract is illegal as it constitutes unfair labor practice.
Truly yours,
xxx
Follow-up: Dear xxx
Using our own Philippine Labor Code, which ULP
was committed?
Mr JMMarquez
Dear Mr. JMMarquez,
As regards your query, the unfair labor practice that
was committed is the violation of the duty to bargain
collectively which is found in Article 259 (g) of the
Labor Code.
The law contemplates and defines two situations when
the duty to bargain exists. First, where there is yet no
collective bargaining agreement and second, where a
CBA exists. For situation one, the duty to bargain
means in essence the mutual obligation of the
employer and employees’ majority union to meet and
convene to negotiate an agreement on subjects of
wages, hours of work, all other terms and conditions
including proposals for adjusting grievances or
questions arising under such agreement, to execute a
contract incorporating such agreement if requested by
either party. In the second situation, the duty to bargain
means all of the above and additionally, the obligation
not ot terminate or modify the CBA during its lifetime.
There are four forms of unfair labor practice in
bargaining namely: 1. failure or refusal to meet and
convene, 2. evading the mandatory subjects of
bargaining, 3. bad faith in bargaining, including failure
or refusal to execute the collective agreement, if
requested and 4. gross violation of the CBA.
In your case, the violation of the duty to bargain was
manifested by evading the mandatory subjects of
bargaining. It is the obligation of the employer and the
employees’ representative to bargain with each other
with respect to “wages, hours, and other terms and
conditions of employment.” Merit increases fall under
the mandatory subjects of bargaining. For prematurely
paying the merit increases before the conclusion of a
bargaining contract, you have committed an unfair
labor practice.
I hope this answers your concern.
Truly yours,
Xxx
Follow-up:
Dear xxx,
What about the act of favoring non-members? No
actionable wrong?
Mr JMMarquez
Dear Mr. JMMarquez,
As regards your query, there is no unfair labor practice
of discrimination in favoring non-members as to merit
increases.
What the law prohibits is discrimination to encourage
or discourage membership in a labor organization. But
discrimination is not the same as differentiation or
classification. For instance, it is common management
practice to classify jobs and grant them varying levels
of pay or benefits package. Discrimination occurs
when the employer’s conduct is not motivated or at
least not entirely motivated by legitimate and
substantial business reasons but by a desire to penalize
or reward employees for union activity or the lack of
it.
In the case of Manila Hotel Company vs Pines Hotel
Employees Ass’n and Court of Industrial Relations,
there is unfair and unjust discrimination in the granting
of salary adjustments where the evidence shows that
(a) the management paid the employees of the
unionized branch; (b) where salary adjustments were
granted to employees of one of its nonunionized
branches although it was losing in its operations and
(c) the total salary adjustments given every ten of its
unionized employees would not even equal the salary
adjustments given one employee in the nonunionized
branch.
In your case, management paid merit increases to 50
employees and 30 were not members of the bargaining
union. It does not immediately amount to unfair labor
practice because such payment could be for legitimate
and substantial business reasons or reasonable
classification. Payment to 30 non-members as
compared to 20 union members is not so great a
discrepancy and does not clearly manifest an intention
to encourage or discourage membership in a labor
organization. In the case mentioned above, there was
clear discrimination as there was a huge difference in
salary adjustments as those given to ten unionized
employees do not even equal to one employee in the
nonunionized branch. There is clear inequality. In the
present case, a manifest inequality is not present.
I hope this answers your question.
Truly yours,
Xxx
Dear xxx,
There is an existing CBA between USC School and
the Walde rank-and-file union as the certified
bargaining representative of its 2000 rank-and-file
employees. The national federation of teachers (NFT),
a duly registered federation filed a petition with the
BLR against the Walde rank-and-file Union to hold a
referendum among the members of the latter' so Union
to determine whether these members desire to be
affiliated with the federation.
If you were the counsel of Walde rank-and-file union,
can you object to the petition of the federation, and if
yes, on what legal grounds? Please advise.
Mr. JMMarquez
Dear Mr. JMMarquez,
This has reference to your query whether Walde rank-
and-file union as a certified bargaining representative
of the 2000 rank-and-file employees USC School can
object to the petition of the federation.
Based on your information, National Federation of
Teachers (NFT), a duly registered federation, filed a
petition with the BLR to hold a referendum among the
members of Walde rank-and-file union to determine
whether they desire to be affiliated with the federation.
Our office is in the opinion that you can validly object
to the petition filed by NFT with the BLR to hold a
referendum among the members of Walde rank-and-
file union to determine whether they desire to be
affiliated with the federation.
Under Article 265 of the Renumbered Labor Code of
the Philippines:
Art. 265. Terms of a collective bargaining agreement.
Any Collective Bargaining Agreement that the parties
may enter into shall, insofar as the representation
aspect is concerned, be for a term of five (5) years. No
petition questioning the majority status of the
incumbent bargaining agent shall be entertained and
no certification election shall be conducted by the
Department of Labor and Employment outside of the
sixty-day period immediately before the date of expiry
of such five-year term of the Collective Bargaining
Agreement.
By filing a petition to hold referendum among the
members of Walde rank-and-file union to determine
whether they desire to be affiliated with the federation,
is in effect questioning and interfering the
representation aspect in the collective bargaining
agreement of the certified bargaining representative
Walde rank-and-file union. Questioning the
representation aspect can only be done within the
sixty-day period immediately before the date of expiry
of such five-year term of the Collective Bargaining
Agreement.
On the other hand, the following are the instances
where referendum can be conducted:
Art. 280 of the Labor Code. Improved offer balloting.
In an effort to settle a strike, the Department of Labor
and Employment shall conduct a referendum by secret
ballot on the improved offer of the employer on or
before the 30th day of the strike.
When at least a majority of the union members vote to
accept the improved offer the striking workers shall
immediately return to work and the employer shall
thereupon readmit them upon the signing of the
agreement.
In case of a lockout, the Department of Labor and
Employment shall also conduct a referendum by secret
balloting on the reduced offer of the union on or before
the 30th day of the lockout. When at least a majority
of the board of directors or trustees or the partners
holding the controlling interest in the case of a
partnership vote to accept the reduced offer, the
workers shall immediately return to work and the
employer shall thereupon readmit them upon the
signing of the agreement.
Also, under D.O. 40-03, series of 2003, a referendum
may be conducted if there is dispute over conduct of
election of officers.
Section 2. Dispute over conduct of election of officers.
- Where the terms of the officers of a labor
organization have expired and its officers failed or
neglected to do so call for an election of new officers,
or where the labor organization's constitution and by-
laws do not provide for the manner by which the said
election can be called or conducted and the
intervention of the Department is necessary, at least
thirty percent (30%) of the members of the labor
organization may file a petition for the conduct of
election of their officers with the Regional Office that
issued its certificate of registration or certificate of
creation of chartered local. In the case of federations,
national or industry unions and trade union centers, the
petition shall be filed with the Bureau or the Regional
Office but shall be heard and resolved by the Bureau.
This rule shall also apply where a conduct of election
of officers is an alternative relief or necessary
consequence of a petition for nullification of election
of officers, impeachment/expulsion of officers, or
such other petitions.
These does not mention instances where referendum
can be had in order to determine whether employees
who are members of a certified bargaining unit desire
to be affiliated with the federation.
The Labor Arbiter may also hold of a referendum "to
determine the will of the employees as to their
inclusion or exclusion in (sic) the bargaining unit”
which is the most appropriate procedure that conforms
with their right to form, assist or join in labor union or
organization as in the case of Philips Industrial
Development, Inc. vs. NLRC.
However, in this situation, the rank and file employees
are already members of legitimate union, in fact, a
certified bargaining agent.
Lastly, to affiliate with a federation or nation union is
a prerogative of the certified bargaining unit or an
independent union and submits the issue to its
members where majority of the vote of the members is
necessary.
However, if it the federation, who is requesting a
referendum among the members of Walde rank-and-
file union to determine whether they desire to be
affiliated with the federation, is the other way around,
and this is interfering with the activities of the certified
bargaining agent whose representation could not be
question except during the 60-day freedom period.
I hope this answer your concerns.
Truly yours,
Xxx
Follow-up: Dear xxx,
Are you saying a referendum is similar to certification
election? Is there an express prohibition under the law
against holding of a referendum where it is the
employees themselves who will decide on such a
major policy?
Mr JMMarquez
Dear Mr JMMarquez,
I apologize for the confusion. Referendum is not
similar to certification election. Rather it is a broader
term than certification election in which referendum is
where employees are called to vote for a particular
proposal. On the other hand, certification election is
more specific, which means the process of
determining, through secret ballot, the sole and
exclusive bargaining agent of the employees in an
appropriate bargaining unit, for purposes of collective
bargaining.
To answer your next concern, there is no express
prohibition under the law against holding of a
referendum where it is the employees themselves who
will decide on such a major policy. Under Article 250,
par. 4 of the Renumbered Labor Code of the
Philippines:
4. The members shall determine by secret ballot, after
due deliberation, any question of major policy
affecting the entire membership of the organization,
unless the nature of the organization or force majeure
renders such secret ballot impractical, in which case,
the board of directors of the organization may make
the decision in behalf of the general membership.
In this connection, I would like to deviate from my
original answer to your query. To make it clear, Walde
rank-and-file union cannot object to the petition of the
federation.
The authority of the Bureau of Labor Relations (BLR)
has been described as broad and expansive.
Under the Labor Code of Philippines:
Art. 232. Bureau of Labor Relations. The Bureau of
Labor Relations and the Labor Relations Divisions in
the regional offices of the Department of Labor, shall
have original and exclusive authority to act, at their
own initiative or upon request of either or both parties,
on all inter-union and intra-union conflicts, and all
disputes, grievances or problems arising from or
affecting labor-management relations in all
workplaces, whether agricultural or non-agricultural,
except those arising from the implementation or
interpretation of collective bargaining agreements
which shall be the subject of grievance procedure
and/or voluntary arbitration.
It was ruled in the case of Litex Employees
Association vs. Eduvala that BLR may hold a
referendum election among the members of a union
for the purpose of determining whether or not they
desire to be affiliated with a federation. "In the interest
of industrial peace and for the promotion of the
salutary constitutional objective of social justice and
protection to labor, the competence of the
governmental agencies entrusted with supervision
over disputes involving employers and employees as
well as "inter-union and intraunion conflicts," is broad
and expansive.
I hope this clarifies the issues. Thank you and more
power.
Truly yours,
xxx
Dear Team Cebrecus,
Reaching a deadlock in the collective bargaining with
management, the Union filed a notice of strike on July
1, 2015. In a meeting on July 5, 2015, the Union
membership overwhelmingly voted to declare a strike.
The Union furnished the NCMB the results of the
strike vote on July 7, 2015. On July 22, 2015, the
Union went on strike. This prompted the Company to
file a petition with the labor arbiter to declare the strike
illegal. After hearing, the labor Arbiter sided with
management, and ordered the Union to stop the strike
and furthermore prohibited all unions officers and
members from engaging in any form of picketing.
We need your advice if the decision made by the labor
arbiter was right?
Mr. JMMarquez
Mr. Marquez, good evening,
Based on the facts you have provided for, we
understand that there are two issues arising out of
them:
I. Whether the labor arbiter validly ordered cessation
of the union strike
II. Whether the labor arbiter prohibited all union
officers and members from engaging in any form of
picketing
I. WITH RESPECT TO THE FIRST ISSUE, WE
HUMBLY SUBMIT THAT THE ANSWER IS IN
THE AFFIRMATIVE.
For a strike to be held valid, certain guidelines have
been provided for both in law and in jurisprudence –
(1) filing of notice of strike, (2) observance of
cooling-off period (3) taking of strike vote and (4)
observance of the seven-day strike-vote-report
period. The basis for such requirements are threshed
out below:
1. Notice of Strike –Under Article 277 [263]
paragraph (c), “[i]n cases of bargaining deadlocks,
the duly certified or recognized bargaining agent may
file a notice of strike.” If the reason for the intended
strike is bargaining deadlock, only the bargaining
union has the legal right to file a notice of strike.
2. Cooling-off period – A cooling-off period, which
lasts for thirty days in case of strike based on a
bargaining deadlock, is a mandatory requirement
under Article 277 [263]
3. Strike vote – a decision to declare a strike must be
approved by a majority of the total union
membership in the bargaining unit concerned
obtained by secret ballot in meetings or referenda
called for the purpose. XxxxX
The regional branch of the board may, at its own
initiative or upon request of any affected party,
supervise the conduct of the secret balloting. In every
case, the union or the employer shall furnish the
regional branch of the board and the notice of
meetings referred to in the preceding paragraph at
least 24 hours before such meetings as well as the
results of the voting at least 7 days before the
intended strike or lockout, subject to the cooling-off
period provided in this rule (Section 10, Rule XII,
Book V of the Implementing Rules and Regulations).
4. Strike Vote Report – The result of the strike should
be reported to the NCMB at least 7 days before the
intended strike. The submission of the report gives
assurance that a strike vote has been taken and that, if
the report concerning it is false, the majority of the
members can take appropriate remedy before it is too
late (National Federation of Sugar Workers v.
Ovejera, GR No. L-59743, 31 May 1982.)
In this case, the Union violated the first three
requisites.
1. Union’s violation of the notice of strike – the union
filed the notice to strike on 1 July 2015 and
conducted the strike on 22 July 2015, just 20 days
after the notice which is an express violation of the
provision of Article 277 [263] par. (c) of the Labor
Code, as stated above.
2. Union’s violation of the cooling-off period – As
the notice did not comply with the 30-day mandatory
requirement, the union necessarily failed to comply
with the cooling-off period.
3. Union’s violation of the strike vote for lack of
notice of meeting – A strike vote requires a notice to
the NCMB at least 24 hours before the scheduled
strike-vote as can be gleaned in Section 10, Rule XII,
Book V of the Implementing Rules and Regulations.
In this case, the facts are bereft of any indication that
the Union filed any notice to the NCMB 24 hours
prior to the 7 July 2015 strike-vote.
II. ANENT THE SECOND ISSUE, THE LABOR
ARBITER INVALIDLY PROHIBITED ALL
UNION OFFICERS AND MEMBERS FROM
ENGAGING IN ANY FOR OF PICKETING..
Section 13 Rule XXII of D.O. No. 40-03 on Peaceful
picketing says that – (w)orkers shall have the right to
peaceful picketing. No person engaged in picketing
shall commit any act of violence, coercion or
intimidation or obstruct the free ingress to or egress
from the employer's premises for lawful purposes, or
obstruct public thoroughfares.
No person shall obstruct, impede or interfere with, by
force, violence, coercion, threats or intimidation, any
peaceful picketing by workers during any labor
controversy or in the exercise of the right to self-
organization or collective bargaining or shall aid or
abet such obstruction or interference. No employer
shall use or employ any person to commit such acts
nor shall any person be employed for such purpose.
In Ganzon v. CA, G.R. 93252 dated 5 August 1991
and PAFLU v. Hon. Barot, G.R. L-9281, 28
September 1956, the SC ruled that the courts may not
validly prohibit the employees of labor unions from
picketing, a legitimate labor right. What may be
enjoined is the use of violence or the act of unlawful
picketing, such as the commission of acts of violence
or intimidation against employees or those who want
to see the shows, not lawful picketing.
Since in the present case, there was yet no picketing
performed by the labor union, it was premature for
the labor arbiter to prohibit all union officers and
members from engaging in any form of picketing.
Dear Team Cebrecus,
What is the basis of the power of the Labor Arbiter to
stop the strike?
Mr. JMMarquez
Mr. Marquez, good evening.
We hope you are doing well abroad.
With respect to your inquiry as to the basis of the
Labor Arbiter to stop the strike, it is worth noting that
the petition of the Company was to declare the strike
illegal. To the extent that the facts of the inquiry
indicated that the “Labor Arbiter sided with
management”, the Labor Arbiter was correct in
deciding on the merits of the petition but erred in
ordering the strike to stop.
Pursuant to Section 14, Rule XXII of Department
Order 40-03, “(n)o court or entity shall enjoin any
picketing, strike or lockout, except as provided in
Articles 225 (218) and 278 (263) of the Labor
Code.”
The Commission shall have the power to issue
temporary restraining orders in such cases but only
after due notice and hearing and in accordance with
its rules. The reception of evidence for the
application of a writ of injunction may be delegated
by the Commission to any Labor Arbiter who shall
submit his recommendations to the Commission for
its consideration and resolution.”
While the 1990 Rules of Procedure of the NLRC
provided that the ancillary power of issuing
preliminary injunction or restraining order may be
exercised by the Labor Arbiters as incident to the
cases pending before them to preserve the rights of
the parties, this statement no longer appears in the
new NLRC Rules of Procedure.
Thus, while questions relating to strikes or lockouts
or any form of work stoppage including incidents
thereof under Article 278 (263) of the Labor Code
fall within the Labor Arbiter’s jurisdiction, the power
to issue injunction is lodged with an NLRC division.
Labor Arbiters are statutorily excluded from issuing
injunctions.
It bears stressing that Article 279 (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 266
(254) of the Labor Code. (San Miguel Corp. v.
NLRC, G.R. No 119293, [June 10, 2003]) This
jurisprudence affirms the power of the NLRC to
enjoin the strike.
Respectfully yours,
Atty. Cebrecus, Cesista and Colina
Dear Team Cebrecus,
I need you to summarize your advice and opinion. I
need to know whether there is a retraction of any of
your answers.
Mr. JMMarquez
Mr. Marquez, good evening:
I. With respect to the categorical question of whether
the Labor Arbiter erred in ordering the stoppage of
strike, the group submits that the Labor Arbiter did as
it does not have the jurisdiction to order an injunction
of strike, contrary to the previous answer provided
for by the group.
II. Notwithstanding the modification as to the answer
above, the group humbly maintains that the Labor
Arbiter erred in prohibiting the Union from engaging
in any form of picketing.
The specific justifications for these answers are
detailed as follows, to wit –
I. THE LABOR ARBITER ERRED IN ORDERING
BOTH THE STOPPAGE OF STRIKE AND IN
PREVENTING THE SUBSEQUENT PICKET OF
THE UNION.
While questions relating to strikes or lockouts or any
form of work stoppage including incidents thereof
under Article 278 (263) of the Labor Code fall within
the Labor Arbiter’s jurisdiction, the power to issue
injunction is lodged with an NLRC division. Labor
Arbiters are statutorily excluded from issuing
injunctions. (Lahm III and James P. Concepcion v.
Labor Arbiter Jovencio Ll. Mayor, Jr., A.C. No.
7430, 15 February 2012).
It bears stressing that Article 279 (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 266
(254) of the Labor Code. Thus, only the NLRC
through its divisions may enjoin a strike. (San Miguel
Corp v. National Labor Relations Commission, G.R.
No 119293, 10 June 2003).
Further, Pursuant to Section 14, Rule XXII of
Department Order 40-03, “(n)o court or entity shall
enjoin any picketing, strike or lockout, except as
provided in Articles 225 (218) and 278 (263) of the
Labor Code.”
The Commission shall have the power to issue
temporary restraining orders in such cases but only
after due notice and hearing and in accordance with
its rules. The reception of evidence for the
application of a writ of injunction may be delegated
by the Commission to any Labor Arbiter who shall
submit his recommendations to the Commission for
its consideration and resolution.” (San Miguel Corp
v. National Labor Relations Commission, G.R. No
119293, 10 June 2003)
II. ANENT THE SECOND ISSUE, THE LABOR
ARBITER INVALIDLY PROHIBITED ALL
UNION OFFICERS AND MEMBERS FROM
ENGAGING IN ANY FORM OF PICKETING.
Article 225 (218) paragraph (e) of the Labor Code
grants the NLRC, not the Labor Arbiter, the power to
issue an injunction. Section 14 Rule XXII of
Department Order No. 40-03, categorically states that
“no court or entity shall enjoin any picketing, strike
or lockout, except as provided in Articles 218 (now
Art. 225) and 265 (now Art. 277) of the Labor Code.”
The same Section further provides that “the
Commission (NLRC) shall have the power to issue
temporary restraining orders in such cases but only
after due notice and hearing and in accordance with
its rules.”
Thus, it is only the Commission and not the Labor
Arbiter that has the jurisdiction to prohibit a Union
from engaging in any form of picketing.
Respectfully yours,
ATTY. Cebrecus
ATTY. Cesista
ATTY. Colina
Dear Team Cebrecus,
Did you check the scope of the injunction power of
the NLRC? Whether it includes stopping a strike?
Mr. JMMarquez
Mr. Marquez, good morning.
The group would aim to clarify all the pertinent
points regarding your query as to the scope of the
injunction power of the NLRC and ultimately,
whether such power includes the power to stop a
strike. The group will likewise incorporate its
previous response as to whether the Labor Arbiter
may validly order the stoppage of strike and prohibit
the union from engaging in any form of picketing.
I. THE SCOPE OF THE INJUNCTIVE POWER OF
THE NLRC INCLUDES ITS LEGAL DUTY TO
ENJOIN AN ILLEGAL STRIKE.
Under the Labor Code, particularly Article 225 (218)
paragraph (e) thereof, the NLRC has been expressly
conferred the power to enjoin or restrain actual and
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.
The Supreme Court in the case of San Miguel
Corporation v. NLRC, GR No. 119293, 10 June 2003
ruled that that the coercive measure of injunction of
the NLRC under Article 225 (218) paragraph (e) may
also be used to restrain an actual or threatened
unlawful strike. Thus, the Supreme Court in San
Miguel v. NLRC, 304 SCRA 1 [1999] ruled that the
NLRC committed grave abuse of discretion when it
denied the petition for injunction to restrain the union
from declaring a strike based on non-strikeable
grounds.
In the same case of San Miguel Corporation v.
NLRC, GR No. 119293, 10 June 2003, the Supreme
Court further held that the NLRC has the legal duty
and obligation to enjoin a strike in violation of the
law.
Thus, the scope of the power of the NLRC includes
the power to stop a strike.
II. THE LABOR ARBITER IS STATUTORILY
EXCLUDED FROM ISSUING INJUNCTIONS.
In Lahm III and James P. Concepcion v. Labor
Arbiter Jovencio Ll. Mayor, Jr., A.C. No. 7430, 15
February 2012, the Supreme Court ruled that Labor
Arbiters are statutorily excluded from issuing
injunctions. Since to order the stoppage of strike and
prevention of picketing both refer to the power to
issue an injunction, it follows that the Labor Arbiter
does not have such authority under the law. The
power to issue injunctions in strikes or picketing is
granted to the NLRC and not the Labor Arbiter (Rule
X, Section 2, 2011 NLRC Rules of Procedure as
amended).
Thus, it is only the Commission and not the Labor
Arbiter that has the jurisdiction to prohibit the Union
from engaging in any form of picketing.
We are sincerely hoping that these responses satisfy
your queries.
ATTY. Cebrecus
ATTY. Cesista
ATTY. Colina
Dear Ms. Cebrecus,
During the collective bargaining negotiations, San
Carlos University offered a wage increase of Php1.00
per day to the covered employees and rejected all the
other economic demands of the Union. This
prompted the Union to file a notice of strike alleging
commission of unfair labor practice as management
was not acting in good faith. To strengthen their
protest, the Union officers refused to attend the
conciliation and mediation conferences before the
NCMB. On the 20th day from the date it filed the
notice of strike, and 7 days after it had filed its strike
vote, the Union went on a peaceful and orderly strike.
Can the company hold the Union's officers and
members liable and dismiss them from employment?
Please advise.
Mr. JMMarquez
Good evening Sir Marquez,
According to Article 278 (263) of the LC, 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.
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.
During the cooling-off period, it shall be the duty of
the Ministry to exert all efforts at mediation and
conciliation to effect a voluntary settlement. Should
the dispute remain unsettled until the lapse of the
requisite number of days from the mandatory filing
of the notice, the labor union may strike or the
employer may declare a lockout.
Section 1 of D.O. 40-03 says: Section 1. Conciliation
of labor-management disputes. - The board may,
upon request of either of both parties or upon its own
initiative, provide conciliation-mediation services to
labor disputes other than notices of strikes or
lockouts. Conciliation cases which are not subjects of
notices of strike or lockout shall be docketed as
preventive mediation cases.
Section 9 of the same D.O says: Action on Notice. -
Upon receipt of the notice, the regional branch of the
Board shall exert all efforts at mediation and
conciliation to enable the parties to settle the dispute
amicably. The regional branch of the Board may,
upon agreement of the parties, treat a notice as a
preventive mediation case. It shall also encourage the
parties to submit the dispute to voluntary arbitration.
During the proceedings, the parties shall not do any
act which may disrupt or impede the early settlement
of the dispute. They are obliged, as part of their duty
to bargain collectively in good faith and to participate
fully and promptly in the conciliation meetings called
by the regional branch of the Board. A notice, upon
agreement of the parties, may be referred to
alternative modes of dispute resolution, including
voluntary arbitration.
Therefore, Pacific measures or remedies must first be
exhausted before employees may stage a strike. Our
courts have insisted on something analogous to the
doctrine of exhausting administrative remedies, by
requiring employees to exhaust available means of
settling the dispute without resort to strike. Strikes
and other coercive acts are deemed justified only
when peaceful alternatives have proved unfruitful in
settling the dispute (PHILMARO VS CIR, and Cia.
Maritima vs PHILMAROA, 103 phil 373 Interwood
Employees Assn. vs. Int'l. Hardwood Veneer Co.
ofthe Phil., 99 Phil 82; Union of PECO Employees
vs. PECO, 91 Phil. 93; INSUREFCO Employees
Union vs. CIR, 95 Phil. 161; Citizens Labor Union
vs. Standard Vacuum Oil Co., 97 Phil. 949; Almeda
vs. CIR, 97 Phil. 306; N L U vs. Phil. Match Factory,
70 Phil. 300; Luzon Marine Department Union vs.
Roldan, N o . L-2660, May 30, 1950. ) thus,
disregarding the grievance procedure or refusal to
submit the arbitrable issue to voluntary arbitration
may justify a conclusion that the strike was held
prematurely, hence, illegally.( Liberal Labor Union
vs. Phil. Can Co., G.R. No. L-4834, March 28, 1952;
San Miguel Corp. vs. NLRC, G.R. No. 99266, March
2, 1999; San Miguel Corp. vs. NLRC, G.R. No.
119293,June 10, 2003; Philcom Employees Union vs.
Phil. Global Communication, G.R. No. 144315,July
17, 2006.
During the proceedings, the parties shall not do any
act which may disrupt or impede the early settlement
of the dispute. They are obliged, as part of their duty
to bargain collectively in good faith and to participate
fully and promptly in the conciliation meetings called
by the regional branch of the Board Therefore, the
refusal of the Union officers to attend the conciliation
and mediation conferences before the NCMB is
unjustified. Not one of the parties has the authority to
ignore the procedures. Otherwise, the strike can be
considered illegal. This is part of the police power of
the State.
Article 264. Any union officer who knowingly
participates in an illegal strike and any worker or
union officer who knowingly participates in the
commission of illegal acts during a strike may be
declared to have lost his employment status:
Provided, That mere participation of a worker in a
lawful strike shall not constitute sufficient ground for
termination of his employment, even if a replacement
had been hired by the employer during such lawful
strike.
And so, the union officers who knowingly
participated in the illegal strike and any worker or
union. officer who knowingly participated in the
commission of the illegal acts during a strike may
have lost his employment status. But to those workers
or union or officers who did not knowingly
participate in the commission of the illegal strike may
not be deemed to have lost the employment status.
Sincerely,
Atty. Cebrecus
Dear Mr. Cesista,
San Carlos University ("University") has two labor
rank-and-file unions, namely, Union A and Union B.
Union A protested the special assessment recently
made by Union B which covers all employees in the
rank-and-file bargaining unit. Because of the dispute,
Union A declared a strike. When the University
sought to have their strike declared illegal, Union A
unconditionally offered to return to work. While the
University is ready and willing to accept all strikers,
the University however refused to accept all Union
A's officers and members who intimidated and
prevented the University's vehicles from going in and
out of the school's premises. Did the University act in
accordance with law? Please advise.
Mr. JMMarquez
Mr. Marquez, good evening.
The question you posed required two discussion of
two issues:
first and a minor issue: whether the strike was legal
and
second and the crux of the controversy: whether the
employer could in fact validly refuse to accept the
Union’s officers and members who intimidated and
prevented University’s vehicles from going in and
out of premises.
Turning then to the first issue of illegality of strike.
It is beyond cavil that indeed the strike was illegal for
failure to allege any of the requirements for a valid
strike. Pursuant to Article 277 [263] of the Labor
Code and Magdala Multipurpose and Livelihood
Cooperative v. KMLMS and Union Members and
Strikers, GR Nos. 191138-39, 19 October 2011), for
a strike to be held valid, certain guidelines have been
provided for both in law and in jurisprudence – (1)
filing of notice of strike, (2) observance of cooling-
off period (3) taking of strike vote and (4) observance
of the seven-day strike-vote-report period. None of
these is present in the case at bar.
Turning to the more crucial issue regarding the
ability of the employer to refuse to accept Union
officers and members who intimidated and prevented
University’s vehicles from going in and out of
premises.
It is my submission that they may validly be
dismissed from employment pursuant to Article 278
[264] paragraph (a) states that “Any union officer
who knowingly participates in an illegal strike andd
any worker or union officer who knowingly
participates in an illegal strike and any illegal acts
during a strike may be decalred to hae lost his
employment status.” Blocking ingress and egress of
the University and intimidation of its vehicles or
personnel is considered an illegal act (Toyota Motor
Phils Workers Association v. NLRC, GR 158786, 19
October 2007).
Thus, provided that the employer was able to give
sufficient notice for such termination as what the
employer did in Toyoto Motor Phils Workers v.
NLRC cited above, the University is expressly
empowered by law to severe employment of Union
officers and workers who committed illegal acts
during a strike, notwithstanding the status of the
strike.
Dear Mr Cesista,
Does not a labor dispute exist?
Mr JMMarquez
Dear Mr. Marquez,
Good evening. I shall endeavor to answer the follow-
up question and will in turn integrate the answer to
the first query.
It may be noted that pursuant to Article 219 [212] of
the Labor Code, a labor dispute “includes any
controversy or matter concerning terms and
conditions of employment or the association or
representation of persons in negotiating, employment,
regardless of whether the disputants stand in the
proximate relation of employer and employee.”
Thus, the strike would have to contemplate
disagreements regarding terms and conditions of
employment or regarding ways to arrange or adjust
those terms and conditions. An intra-union dispute is
not considered a labor dispute (National Union of
Workers in Hotels, etc. v. NLRC and Peninsula
Hotel, GR No. 125561, 6 March 1998).
In the instant case, it is clear that the strike declared
by Union A is illegal not only because of non-
compliance with the procedural requirements of a
valid strike under Article 277 [263] of the Labor
Code and its implementing rules but because the
issue itself was a non-strikeable issue as it was based
on an intra-union dispute. A strike declared on the
ground of inter-union or intra-union conflict which is
a non-strikeable issue is patently illegal according to
paragraph (b) of Article 263 of the Labor Code
expressly prohibiting strike on grounds involving
inter-union or intra-union disputes.
To integrate the answer with respect to the first
query, the Labor Code [Article 278 (a)] expressly
sanctions the dismissal of union officers who
knowingly participate in an illegal strike or in the
commission of illegal acts during a lawful strike.
Union members who knowingly participate in
prohibited or illegal acts during a strike may likewise
be terminated if there is substantial evidence or proof
of their participation, i.e., that they are clearly
identified to have committed such prohibited and
illegal acts. (Magdala Multipurpose and Livelihood
Cooperative v. KMLMS and Union Members and
Strikers, GR Nos. 191138-39, 19 October 2011)
For this reason alone, the University may validly
terminate the union officers pursuant to the
provisions of the law. On the other hand, ordinary
union members who participate in an illegal strike are
generally not liable. If they commit prohibited and
illegal acts during the strike, legal or illegal, they may
validly be terminated (Art. 278 [264]) par. (a). The
act of intimidation and obstruction of the free ingress
to or egress from the premises of the employer for
lawful purposes is one of the prohibited acts and
practices during a strike. Therefore, in the instant
case, the union members who intimidated and
prevented the University’s vehicles from going in and
out of the school’s premises may also be validly
terminated so long as there is substantial proof of
their participation (Toyota Motor Phils Workers
Association v. NLRC, GR 158786, 19 October
2007).
Thus, provided that the employer was able to give
sufficient notice for such termination as what the
employer did in Toyota Motor Phils Workers v.
NLRC cited above, the University is expressly
empowered by law to severe employment of Union
officers and workers who committed illegal acts
during a strike, notwithstanding the status of the
strike.
Thank you for your time, Mr. Marquez.

ATTY. Vincent Joseph Cesista
Dear Ms. Colina,
The certified bargaining Union submitted to the
employer a bargaining proposal for a Php1,000
monthly across-the-board wage increase per covered
employee. Believing that it was an utterly
unreasonable proposal in view of the prevailing poor
business climate, the management told the Union that
it was useless to meet on such a proposal, and
management could not be compelled to agree to it.
If you were the Union's counsel, what legal action
may you take on thematter?
Mr. JMMarquez
Dear Mr. JMMarquez,
Good Day!
Thank you for your inquiry. Regarding your question
here is our legal advice.
Pursuant to Art. 260 of the Labor Code states that
Procedure in collective bargaining. The following
procedures shall be observed in collective bargaining:
1. 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;
2. 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.
3. 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;
4. 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
5. The Board shall exert all efforts to settle disputes
amicably and encourage the parties to submit their
case to a voluntary arbitrator.
Since the situation is still in the preliminary stage of
the collective bargaining the remedy is to request for
a conference which shall begin not later than ten days
from the date of request.
And follow the procedure on collective bargaining as
stated in Art. 260. If the dispute is still unsettled
during in the conference a request for the intervention
of the Board or the National Conciliation Mediation
Board. It is a state policy that disputes in labor be
amicably settled. There is still no bargaining
deadlock in the instant case which may be a cause for
a valid strike because there is still no exhaustion of
administrative remedies as stated in Art. 260 of the
Labor Code.
Thank you.
Yours Truly,
Atty. Maricris D. Colina
Dear Ms. Colina,
Is there no unfair labor practice?
Mr JMMarquez
Dear Mr. JMMarquez,
Good Day!
Thank you for the clarification. Here is our answer.
There is unfair labor practice in the refusal of the
employer to meet on the proposal. Art. 258 (g) of the
Labor Code states that to violate the duty to bargain
collectively as prescribed by the code is an unfair
labor practice. The duty to bargain is discussed in
Art. 262 and Art. 263 of the Labor Code providing
that (Art. 262) the duty to bargain collectively means
the performance of a mutual obligation to meet and
convene promptly and expeditiously in good faith for
the purpose of negotiating an agreement with respect
to wages, hours of work and all other terms and
conditions of employment including proposals for
adjusting any grievances or questions arising under
such agreement and executing a contract
incorporating such agreements if requested by either
party but such duty does not compel any party to
agree to a proposal or to make any concession.
There are four forms of unfair labor practice in
bargaining: 1) failure or refusal to meet and convene,
2) evading the mandatory subjects of bargaining, 3)
bad faith in bargaining, including failure or refusal to
execute the collective agreement, if requested; and 4)
gross violation of the CBA. Under Art. 262 of the
Labor Code provides that the duty to bargain
collectively does not compel either party to agree to a
proposal or require the making of concessions. An
employer has been held not guilty of a refusal to
bargain by adamantly rejecting the union’s economic
demands where he is operating at a loss, on a low
profit margin, or in a depressed industry, as long as
he continues to negotiate. But financial hardship
constitutes no excuse for refusing to bargain
collectively. And, the NLRB has held that an
employer is guilty of a refusal to bargain when he
refuses to even discuss a union’s economic demands
on the ground that in his very serious financial
condition it would be impractical to negotiate or that
he is financially unable to accept a contract
negotiated by the union with the employer’s
association of which he is a member (48 Am. Jur. 2d
966 pp.784-785). It is not obligatory upon either side
of a labor controversy to precipitately accept or agree
to the proposals of the other. But an erring party
should not be tolerated and allowed with impunity to
resort to schemes feigning negotiations by going
through empty gestures (Kiok Loy v NLRC and
Kilusan, No. L-54334, Jan. 22, 1986).
The circumstances in the given situation warrant that
there is unfair labor practice in bargaining on the
ground of failure or refusal to meet and convene. The
remedy of the union in the refusal to meet or convene
of the employer for the purpose of collective
bargaining is to do a valid strike. Unfair labor
practice is a valid ground for strike other than
bargaining deadlock pursuant to Labor Code’s IRR
Book V:Rule XXII sec. 5. Art. 277 of the Labor Code
(b) affords workers to have the right to engage in
concerted activity for purposes of collective
bargaining or for their mutual benefit and protection.
The right of legitimate labor organizations to strike
and picket, consistent with the national interest, shall
continue to be recognized and respected. For there to
be a valid strike the procedural requirements of
notice of strike filed by the duly recognized or
certified bargaining agent, the observance of the
cooling-off period of 15 days in case of unfair labor
practice, the strike vote which should be taken by
secret balloting in meetings or referenda called for
the purpose with the union furnishing the regional
branch of the National Conciliation Mediation Board
the notice of meeting referred to at least 24 hrs before
such meetings and as well as the results of the voting
or the strike vote report at least 7 days before the
intended strike subject of the cooling-off period must
be present.

Yours Truly,
Atty. Maricris Colina

Dear Ms Colina,

Are you now retracting your original advice?

Mr JMMarquez

Dear Mr. JMMarquez,

Good day!

Thank you for your inquiries. To clarify the issue

here is our legal advice.

There are two grounds for a valid strike 1) unfair

labor practice and 2) bargaining deadlock. In the
given situation the remedy is to do a valid strike after
following the procedures required as earlier
mentioned on the ground of unfair labor practice due
to the refusal of the employer to meet and convene
for collective bargaining on the union’s proposal and
not on the ground of bargaining deadlock because
there was no exhaustion of administrative remedies.
It is my submission that because of the employer’s
refusal to bargain, the more appropriate action is to
consider it as unfair labor practice and file a notice
for a valid strike and not to wait for a bargaining
deadlock because the employer refuses to meet on the
proposal.

Yours Truly,
Atty. Maricris Colina