VII.

LABOR RELATIONS Industrial Enterprise

A. Right to self-organization Agricultural
1. Who may unionize for purposes of collective bargaining
Article 212(g) of the Labor Code defines a labor organization as “any Commercial
union or association of employees which exists in whole or in part for Religious
the purpose of collective bargaining or of dealing with employers Educational
concerning terms and conditions of employment.” Upon compliance Medical
with all the documentary requirements, the Regional Office or Bureau --- whether operating for profit or
shall issue in favor of the applicant labor organization a certificate not
indicating that it is included in the roster of legitimate labor --- for collective bargaining and
organizations. Any applicant labor organization shall acquire legal mutual
personality and shall be entitled to the rights and privileges granted by Aid and protection
law to legitimate labor organizations upon issuance of the certificate of
registration. (Sta. Lucia East Commercial Corporation vs. Hon. 2. The following are also included in the coverage of the right to
Secretary of Labor and Employment, et al., G.R. No. 162355, August 14, self-organization
2009). Ambulant Intermittent Rural Worker with no
definite employers
Article 249 LC – Meaning Itinerant Self-employed ---mutual aid and
--- The right to protection
JOIN 2. Bargaining unit
ASSIST or *Labor Organization – refers to any union or association of employees
FORM in the private sector which exists in whole or in part for the purpose of
collective bargaining, mutual aid, interest, cooperation, protection, or
Labor Organizations other lawful purposes.
*Legitimate Labor Organization – refers to any labor organization in
For the private sector registered or reported with the Department.
*Union – refers to any labor organization in the private sector
Collective Bargaining Lawful Concerted organized for collective bargaining and for other legitimate purposes.
Action
For *What is the so-called Labor Organization and CBA Registration Unit
Collective Bargaining of the RO of the DOLE?
Mutual Aid and Protection Under Art. 237 of the LC, it is the repository of CBAs and other
related agreements; records of settlements of labor disputes and
General Coverage copies of orders and decisions of voluntary arbitrators; it also collects
1. All persons employed in: Commercial fees for registration to be used for voluntary arbitration programs
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deposited in an account called Special Voluntary Arbitration Fund
(SVAF).
*Distinguish between “collective bargaining” and “dealing with the
employer”?
The 2 purposes, i.e., collective bargaining and dealing with the
employer, are both concerned with the terms and conditions of
employment, but in labor relations these 2 are NOT the same.
To BARGAIN COLLECTIVELY is a right that may be acquired by a LO after
registering itself with the BLR and after being recognized or certified by
the BLR as the exclusive bargaining representative of the employees.
DEALING WITH THE EMPLOYER, on the other hand, is a generic
description of interaction between employer and employees
concerning grievances, wages, work hours and other terms and
conditions of employment, even if the employee’s group is not
registered with the BLR. As a legitimate labor relations process, dealing
with the employer explains why a LO does not always have to be a LU
and why employer-employee collective interactions are not always
collective bargaining.
*What LOs are required to be registered?
1. Federation - means any LO with at least 10 locals/chapters
or affiliates each of which
2. National Union must be a duly certified recognized CB
agent
3. Industry Union - means any group of LLOs operating within an
identified industry, organized for CB or dealing with the employers
concerning terms and conditions of employment within an industry, or
for participating in the formulation of social and employment policies,
standard and programs in such industry, which is duly registered with
the DOLE.
4. Trade Union Center - may refer to a group of national unions
or federations organized for the mutual aid and protection of its
members, for assisting such members in collective bargaining, or for
participating in the formulation of social and employment policies,
standards and programs.
5. Independent Union
*What are the classifications of LO:
1. National Union/Federation
2. Industry Union
3. Trade Union Center
4. Alliance – is an aggregation of unions existing in one line of industry,
or in a conglomerate, a group of franchises, a geographical area, or an
industrial center.
5. Company-Union – is a LO which, in whole or in part, is employer-
controlled or employer-dominated. This is prohibited under Art. 258(d)
of the LC.
6. Independent Union – a LO operating at the enterprise level that
acquired legal personality through independent registration under Art.
239. But it may affiliate with a federation or NU, in which case it may
also be called an affiliate.
7. Chartered Union – this takes place when a duly registered
federation/NU issues a charter to a union in an enterprise and registers
the creation of the chapter with the RO where the applicant operates.
The union recipient of the charter is called a chapter or local or
chartered local. The legal personality is derived from the federation/NU
but it may subsequently register itself independently.
8. Local Chapter – formerly called Chartered Local refer to a LO in the
private sector operating at the enterprise level that acquired legal
personality through the issuance of a charter certificate by a
federation/NU. (only a federation/NU may directly create a local
chapter, a trade union center is not allowed to chapter directly) Under
the LC and the rules, the power granted to LOs to directly create a
chapter or local through chartering is given to a federation or national
union only, not to a trade union center. (SMCEU v. San Miguel
Packaging Products Ees Union G.R. No. 171153, Sep. 12, 2007).
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9. Affiliate – refers to an independent union affiliated with a federation,
NU or local chapter which was subsequently granted independent
registration but did not disaffiliate from its federation.
a. Test to determine the constituency of an appropriate bargaining
unit
An appropriate bargaining unit is defined as “a group of employees of
a given employer, comprised of all or less than all of the entire body of
employees, which the collective interest of all the employees,
consistent with equity to the employer, indicate to be best suited to
serve the reciprocal rights and duties of the parties under the collective
bargaining provisions of the law”. The test of grouping is community or
mutuality of interest. Certain factors, such as specific line of work,
working conditions, location of work, mode of compensation, and
other relevant conditions do not affect or impede their commonality of
interest. Although they seem separate and distinct from each other,
the specific tasks of each division are actually interrelated and there
exists mutuality of interests which warrants the formation of a single
bargaining unit
Although Article 245 of the Labor Code limits the ineligibility to join,
form and assist any labor organization to managerial employees,
jurisprudence has extended this prohibition to confidential employees.
The positions of Human Resource Assistant and Personnel Assistant
belong to the category of confidential employees and, hence, are
excluded from the bargaining unit, considering their respective
positions and job descriptions. As Human Resource Assistant, the
scope of one’s work necessarily involves labor relations, recruitment
and selection of employees, access to employees’ personal files and
compensation package, and human resource management. As regards
a Personnel Assistant, one’s work includes the recording of minutes for
management during collective bargaining negotiations, assistance to
management during grievance meetings and administrative
investigations, and securing legal advice for labor issues from the
petitioner’s team of lawyers, and implementation of company
programs. Therefore, in the discharge of their functions, both gain
access to vital labor relations information which outrightly disqualifies
them from union membership. (San Miguel Foods, Inc. vs. San Miguel
Corp. Supervisors and Exempt Union, G.R. No. 146206. August 1, 2011).
A bargaining unit is a “group of employees of a given employer,
comprised of all or less than all of the entire body of employees,
consistent with equity to the employer, indicated to be the best suited
to serve the reciprocal rights and duties of the parties under the
collective bargaining provisions of the law.”
The fundamental factors in determining the appropriate collective
bargaining unit are:
(1) the will of the employees (Globe Doctrine); The main consideration
in fixing the appropriate CBU is the EXPRESS WILL OR DESIRE OF THE
EMPLOYEES. The doctrine sanctions the holding of a series of elections,
not for the purpose of determining the collective bargaining agent but
for the specific purpose of permitting the employees in each of the
several categories to select the CBU.
(2) the main consideration in fixing the appropriate CBU is the affinity
and unity of the employees’ interest, such as substantial similarity of
work and duties, or similarity of compensation and working conditions
(Substantial Mutual Interests Rule or The Community of Interest
Rule);
(3) Prior Collective Bargaining History – is also a determining factor in
fixing the BU, but it is not a decisive factor. This may be disregarded
where the circumstances had been so altered or where the reciprocal
relationship of the employer and the particular bargaining agent has
been so changed that the past mutual experience can no longer be
considered as a reliable guide to the present determination of the
bargaining unit. Under this situation, only the prevailing factors should
control the determination of the bargaining unit; and
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(4) Similarity of Employment Status – the main consideration in fixing
the appropriate CBU is the status of employment. The rule requires
that non-regular employees be treated separately from regular
employees. (Sta. Lucia East Commercial Corporation vs. Hon. Secretary
of Labor and Employment, et al., G.R. No. 162355, August 14, 2009)
Under Article 245 of the Labor Code, supervisory employees are not
eligible for membership in a labor union of rank-and-file employees.
The supervisory employees are allowed to form their own union but
they are not allowed to join the rank-and-file union because of
potential conflicts of interest. Further, to avoid a situation where
supervisors would merge with the rank-and-file or where the
supervisors’ labor union would represent conflicting interests, a local
supervisors’ union should not be allowed to affiliate with the national
federation of unions of rank-and-file employees where that federation
actively participates in the union activity within the company. Thus, the
limitation is not confined to a case of supervisors wanting to join a
rank-and-file union. The prohibition extends to a supervisors’ local
union applying for membership in a national federation the members
of which include local unions of rank-and-file employees. (Coastal Subic
Bay Terminal, Inc., vs DOLE. G.R. No. 157117,November 20, 2006 ).
There are two classes of rank and file employees in the university that
is, those who perform academic functions such as the professors and
instructors, and those whose functions are non-academic who are the
janitors, messengers, clerks etc. Thus, not much reflection Is needed to
perceive that the mutuality of interest which justifies the formation of
a single bargaining unit is lacking between the two classes of
employees. (U.P. v Ferrer-Calleja. G.R. No. 96189. July 14, 1992).
While the existence of a bargaining history is a factor that may be
reckoned with in determining the appropriate bargaining unit, the
same is not decisive or conclusive. Other factors must be considered.
The test of grouping is community or mutuality of interests. 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. (Democratic Labor Assocation v Cebu Stevedorin Company,
Inc.G.R. No. L-10321, Feb 28, 1958).
The attempt to make the security agencies appear as two separate
entities, when in reality they were but one, was a devise to defeat the
law and should not be permitted. Although respect for corporate
personality is the general rule, there are exceptions. In appropriate
cases, the veil of corporate fiction may be pierced as when it is used as
a means to perpetrate a social injustice or as a vehicle to evade
obligations. Petitioner was thus correctly ordered to pay respondent’s
retirement under RA 7641, computed from January 1979 up to the time
he applied for retirement in July 1997. (Enriquez Security Services,Inc.
vs. Victor A. Cabotaje G.R. No. 147993,July 21, 2006).
*What are the requirements for union registration?
1. Principal address of the union;
2. Officer’s names and addresses;
3. Registration fee; and
4. Names of at least 20% of the BU who are the union’s members.
*What are the additional requirements for chartering of local or
chapter?
1. Chapter’s constitution and by-laws;
2. Officers’ names and addresses; and
3. Principal office of the chapter.
*What are the additional requirements for registration of federation
and NU?
1. Names and addresses of the companies where the locals or charters
operate;
2. Proof of membership of at least 10 locals or chapters;
3. List of members in each of the 10 companies; and
4. The affiliate local or chapters are recognized bargaining agents.
4

*When is the legal personality acquired or granted to LLO?
It is acquired upon issuance of the Certificate of Registration. (Take
note that this is not the same with the acquisition of legal personality
by a local chapter as provided for under Art. 240_A) (Take note further
that the 20% membership requirement under Art. 240 applies only to
registration of an independent union; it does not apply to the
registration of federation/NU)
b. Voluntary Recognition now Sole and Exclusive Bargaining
Agent/SEBA Certification
When a Union can Request for SEBA Certification:
A LLO can request for SEBA Certification only when:
1. the establishment is unorganized; and
2. there is no other LLO within the bargaining unit
How to Obtain a SEBA Certification
A LLO can obtain a SEBA Certification by filing a request for
SEBA Certification with the RO that issued its Certificate of Registration
or Certificate of Creation of Chartered Local. The request for
certification should be accompanied by the:
1. Certificate of Registration of the union or Certificate of
Creation of the Local Chapter;
2. List of employees within the BU(comprising a majority) who
supported the request for SEBA Certification;
The request for certification should also include the following:
1. Name and address of the requesting LLO;
2. Name and address of the company where it operates;
3. Bargaining unit sought to be represented;
4. Approximate number of employees in the BU; and
5. Statement as to non-existence of another union within the
BU.
The Union President must certify under oath that all the
documents submitted are true and correct based on his own personal
knowledge.
SEBA Certification must be Posted
Once the SEBA Certification is issued, it should be posted in 2
conspicuous places in the establishment.
Effect of SEBA Certification
1. It qualifies the union to act as the CBR of the employees
covered by the BU.
2. It bars the filing of a petition for CE by any union for a period
of 1 year from the date of issuance of the SEBA Certification (SEBA
Certification Year Bar Rule)
c. Certification election
A certification election is not a litigation but merely an investigation
of a non‐adversarial fact‐ finding character in which BLR plays a part
of a disinterested investigator seeking merely to ascertain the
desire of the employees as to the matter of their representation.
(Airline Pilots Ass’n of the Philippines v. CIR. G.R. No. L‐33705, April 15,
1977).
(i) In an unorganized establishment
- a petition for CE can be filed anytime. The mere filing of a
petition for CE by a LLO is enough to order the holding of a CE. The 25%
consent requirement is not necessary. (Art. 269, LC)
Appeal from CE Orders in UE
An order granting the conduct of CE is NOT appealable. Any
issue arising therefrom may be raised by means of protest on the
conduct and results of the CE.
However, an order dismissing the petition is appealable to the
SOL within 10 days from receipt thereof. (Sec. 18, Rule VIII, Book V, IRR
as amended by Department Order No. 40-F-03)
(ii) In an organized establishment
An organized establishment is an enterprise where there exists
a recognized or certified SEBA.
When to File a Petition for CE
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 In OE, a petition for CE can be only be filed during the freedom
period, i.e., within the 60-day freedom period prior to the expiration of
a duly registered CBA.
CE can be ordered if the verified petition filed by a LLO is
supported by the written consent of at least 25% of all the employees
in the bargaining unit. (Art. 268, LC)
The purpose of the 25% written consent requirement is to show
that the petition union represents a group of employees of the
company who have substantial interest in the election (NAMAWU v.
Estrella, 87 SCRA 84). The 25% consent requirement need not be
established with mathematical precision. A prima facie showing of
compliance will suffice (Atlas Free Workers Union v. Noriel, 104 SCRA
565). Although it is necessary to attach the 25% written consent to the
petition for CE, submission of such requirement within a reasonable
period from filing of the petition for CE will still be considered as
substantial compliance with the rule (Port Workers Union v. Laguesma,
207 SCRA 329).
If the 25% is complied with, CE is MANDATORY. Exception , if
the 25% is NOT MET, it is still DISCRETIONARY to conduct CE as it is the
best forum indetermining the will of the employees (best forum rule)
Effect of Withdrawal of Consent
If the withdrawal or retraction of consent was made BEFORE
the filing of the petition for CE, the Med-Arbiter cannot order the
holding of a CE, because in effect, the petition lacks the required
written consent (La Suerte Cigar and Cigarette Factory v. Director of
BLR, 123 SCRA 679).
On the other hand, if the withdrawal or retraction of consent
was made AFTER the filing of the petition for CE, the Med-Arbiter can
still order the holding of a CE because if the withdrawal was made after
the filing of the petition, it can be presumed that the withdrawal was
procured through duress, coercion or for valuable consideration,
hence, the best forum to determine if there was indeed undue
pressure exerted upon the employees is the CE itself wherein the
employees can freely express their choice in a secret ballot (George &
Peter Lines, Inc. V. ALU, 134 SCRA 82).
Reason for the Distinction
The withdrawal or retraction made before the filing of the
petition is presumed voluntary, because the names of the employees
who supported the petition are supposed to be unknown to the
opposite party, whereas with withdrawals made after the filing of the
petition are deemed involuntary, because the employees who
supported the petition are already known to the opposite party since
their names are attached to the petition. Therefore, it would not be
unexpected that the opposite party would use foul means for the
subject employees to withdraw their support (La Suerte Cigar)
CE barred despite compliance of 25% consent requirement:
1. Contract-bar rule;
Exceptions:
a. CBA is unregistered (if the CBA is an arbitral award it
need not be registered hence it will bar CE)
b. CBA incomplete/ inadequate – sweetheart contract
c. CBA hastily entered into frustrating the right of
employees ti file a petition for CE at the proper time
d. CBA entered into during the pendency of the CE
e. CBA was registered with falsified supporting
documents
f. CBA entered into by employer and a union not the
exclusive bargaining representative
g. in case of mass withdrawals/disaffiliation of the
mebers from the majority union
2. Outside of the freedom period rule;
3. One-year bar rule;
4. Deadlock bar rule;
5. Change of company unionism rule;
6. Negotiation-bar rule;
7. Appeal bar rule;
8. Not listed in the registry of unions rule
Petition for CE Filed by a Federation.
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 A duly registered federation or NU can file a petition for CE in
behalf of its local chapter whom it has been issued a Charter Certificate
(Art. 241, LC).
To show that a charter certificate has been issued, the
federation or NU should attach the charter certificate to the petition.
Failure of the federation or NU to submit the charter certificate upon
filing of the petition is a ground for dismissal of the petition.
A federation or NU which files a petition for CE in behalf of its
local chapter cannot be required to disclose the names of the officers
and members of the local chapter.
Petition for CE Filed by the Employer
Art. 270, LC – An employer can file a petition for CE ONLY when
it is requested to bargain collectively.
Art. 271, LC – The Bystander Principle - CE is the sole concern
of workers.
The Rule is not absolute: Exceptional Situations are:
1. No EER exist between the company and the employees
sought to be represented by the petitioning union.
2. When the petitioning union is not listed in the Registry of
LLU, or when the registration of the petitioning union has been
cancelled with finality.
3. When the bargaining unit sought to be represented by the
petitioning union is not an appropriate BU.
4. When the petition in an organized establishment is not
supported by the written consent of 25% of the employees within the
BU.
5. When there is a duly registered CBA.
6. When the petition was filed within 1 year from certification
as BA.
7. When the CBA negotiations are ongoing, or a deadlock in the
CBA negotiations has been submitted to conciliation or arbitration or
had become the subject of a notice of strike or lockout.
The choice of their representative is the exclusive concern of the
employees; the employer cannot have any partisan interest therein; it
cannot interfere with, much less oppose, the process by filing a motion
to dismiss or an appeal from it; not even the allegation that some
employees participating in a petition for certification election are
actually managerial employees will give an employer legal personality
to block the certification election. The employer’s only right in the
proceeding is to be notified or informed thereof. (Samahang
Manggagawa sa Charter Chemical Solidarity of Unions in the Philippines
for Empowerment and Reforms [SMCC-SUPER], Zacarrias Jerry Victorio
– Union President v. Charter Chemical and Coating Corporation G.R.
No. 169717, March 16, 2011).
The general rule is that an employer has no standing to question the
process of certification election, since this is the sole concern of the
workers. Law and policy demand that employers take a strict, hands-
off stance in certification elections. The bargaining representative of
employees should be chosen free from any extraneous influence of
management. The only exception is where the employer itself has to
file the petition pursuant to Article 258 of the Labor Code because of a
request to bargain collectively. (San Miguel Foods, Inc. vs. San Miguel
Corp. Supervisors and Exempt Union. G.R. No. 146206. August 1, 2011).
The bargaining deadlock-bar rule was not applied because the duly
certified exclusive bargaining agent of all rank-and-file employees did
not, for more than four (4) years, take any action to legally compel the
employer to comply with its duty to bargain collectively, hence, no CBA
was executed; nor did it file any unfair labor practice suit against the
employer or initiate a strike against the latter. Under the
circumstances, a certification election may be validly held. (Kaisahan ng
Manggagawang Pilipino [KAMPIL-KATIPUNAN] vs. Trajano, G. R. No.
75810, September 9, 1991).
This is what is strikingly different between the Kaisahan case and the
case at bench for in the latter case, there was proof that the certified
7
bargaining agent, respondent union, had taken an action to legally
coerce the employer to comply with its statutory duty to bargain
collectively, i.e., charging the employer with unfair labor practice and
conducting a strike in protest against the employer’s refusal to bargain.
It is only just and equitable that the circumstances in this case should
be considered as similar in nature to a ‘bargaining deadlock’ when no
certification election could be held. This is also to make sure that no
floodgates will be opened for the circumvention of the law by
unscrupulous employers to prevent any certified bargaining agent from
negotiating a CBA. Thus, Section 3, Rule V, Book V of the Implementing
Rules should be interpreted liberally so as to include a circumstance,
e.g., where a CBA could not be concluded due to the failure of one
party to willingly perform its duty to bargain collectively. (Capitol
Medical Center Alliance of Concerned Employees-Unified Filipino
Service Workers vs. Laguesma. G. R. No. 118915, February 4, 1997).
The Certification Proceedings
1. The petition for CE shall be filed with the DOLE RO which issued the
Certificate of Registration or Certificate of Creation of chartered local.
2. Motion to Dismiss:
1. No EER exist between the company and the employees
sought to be represented by the petitioning union.
2. When the petitioning union is not listed in the Registry of
LLU, or when the registration of the petitioning union has been
cancelled with finality.
3. When the bargaining unit sought to be represented by the
petitioning union is not an appropriate BU.
4. When the petition in an organized establishment is not
supported by the written consent of 25% of the employees within the
BU.
5. When there is a duly registered CBA.
6. When the petition was filed within 1 year from certification
as BA.
7. (a) When the CBA negotiations are ongoing, or (b) a deadlock
in the CBA negotiations has been submitted to conciliation or
arbitration or (c) had become the subject of a notice of strike or
lockout.
8. Failure of petitioner to appear for 2 consecutive scheduled
conference before the Mediator-Arbiter despite notice.
3. Intervention
LLU with substantial interest in the CE can intervene in the
certification proceedings by filing a motion for intervention.
In unorganized establishments, the motion for intervention can
be filed any time prior to the decision of the Med-Arbiter. In organized
establishments, the motion for intervention should be filed within the
freedom period.
The incumbent CB agent is an automatic intervenor (forced
intervenor) in a petition for CE, hence, it is always one of the choices in
a CE.
4. Suspension of Proceedings
The CE proceedings may be suspended if a participant-union
has been charged with ULP for being a company union. The CE should
await the result of the ULP case.
Petition for Cancellation of Registration Not a Ground for
Suspension - The pendency of a petition for cancellation of union
registration does not preclude collective bargaining, and that an order
to hold a certification election is proper despite the pendency of the
petition for cancellation of the union’s registration because at the time
the respondent union filed its petition, it still had the legal personality
to perform such act absent an order cancelling its registration. The
legitimacy of the legal personality of respondent cannot be collaterally
attacked in a petition for certification election proceeding but only
through a separate action instituted particularly for the purpose of
assailing it. The Implementing Rules stipulate that a labor organization
shall be deemed registered and vested with legal personality on the
date of issuance of its certificate of registration. Once a certificate of
8
registration is issued to a union, its legal personality cannot be subject
to a collateral attack. It may be questioned only in an independent
petition for cancellation in accordance with Section 5 of Rule V, Book V
of the Implementing Rules. (Legend International Resorts Limited v.
Kilusang Manggagawa ng Legenda. G.R. No. 169754, February 23,
2011).
5. Preliminary Conference
If no motion to dismiss/suspend is filed or if the motion to
dismiss/suspend is denied, a PC will be conducted by the Med-Arbiter
for the purpose of determining:
a. the bargaining unit to be represented;
b. the contending labor unions:
c. the possibility of consent election; and
If parties’ consents the Med-Arbiter will no longer resolve the
merits of the petition and will proceed to a pre-election conference to
discuss the mechanics of the election. If not, Med-Arbiter will resolve
the merits of the petition by either dismissing it or directing the holding
of a CE.
d. other relevant matters.
6. Appeal from CE Orders
An order granting the conduct of CE is NOT appealable. Any
issue arising therefrom may be raised by means of protest on the
conduct and results of the CE.
However, an order dismissing the petition is appealable to the
SOL within 10 days from receipt thereof. (Sec. 18, Rule VIII, Book V, IRR
as amended by Department Order No. 40-F-03)
The decision of the SOL will become final and executor after 10
days from receipt thereof by the parties. No MR of the decision shall be
entertained.
The Conduct of Elections
1. Pre-election conference (date and time of lections, qualified
voters, watchers, polling places, inclusion-exclusion of voters to name a
few)
2. Notice of Election (date and time of elections, names of
contending unions, description of bargaining unit, and list of eligible
and challenged voters)
3. Posting of Notice of Election (mandatory) - 10 days before
actual elections in 2 conspicuous places in the company premises.
4. Qualified voters - All employees covered by the appropriate
BU who have been in service for at least 3 months prior to the filing of
the petition, whether union members or not, are eligible to vote,
regardless of their employment status.
5. Challenging of Votes – before the ballot is deposited in the
ballot box, the authorized representative of any of the contending
unions can challenged a vote on the ground that the voter: a. Is
not an employee of the company:
b. has resigned or has been dismissed from service; or
c. is not a member of the bargaining unit.
6. Handling of challenged votes – the election officer shall: place
the ballot in an envelope and sign and seal the same in the presence of
the voter, employer, and the representatives of the contending unions.
Indicate on the envelope the voter’s name, the party challenging the
voter and the ground for the challenge. Record all the challenges in the
minutes of the election and consolidate all envelopes containing the
challenged votes.
7. Opening of the sealed envelopes – The sealed envelopes will
be opened ONLY when the number of the segregated voters will
materially alter the results of the election.
8. Election protest – only a party-in-interest can file a protest
based on the conduct or mechanics of the election. A LU which did not
take part in the CE cannot protest.
9. Failure of elections – when the votes cast is less than the
majority of the number of eligible voters and there are no material
challenged votes. If a failure of election is declared, a motion for the
9
immediate holding of a re-run election may be filed within 6 months
from the declaration of failure of lection.
10. Effect of tie votes – if the CE/Consent E/Run-off E results in a
tie between contending unions or between “no union” and one of the
unions, a re-run election shall be conducted within 10 days from
posting of the Notice of Re-Run Election.
d) Run-off election – (automatic second election rule) is an election
conducted when, (1) in a CE with at least 3 choices, (2) none of the
choices obtained a majority of the valid votes cast, and (3) the total
number of votes for all the contending unions is at least 50% of the
total number of votes cast (4) without challenged ballots which can
materially alter the results.
Who can participate in a run-off election
Only the 2 LUs receiving the highest number of votes can
participate in the run-off election. “No Union” shall not be a choice in a
run-off election. The same voters’ list used in the CE shall be used in
the run-off election.
*If the second highest number of votes is a tie between 2 or
more unions, a re-run election between the tied unions shall be
conducted in order to determine which of the unions can participate in
the run-off election.
e) Re-run election – an election conducted to break a TIE (a) between 2
contending unions, (b) between a “no-union” and 1 of the unions, or (c)
a failure of election has been declared by the elections officer and/or
confirmed by the Med-Arbiter (Sec. 2, D.O. 40-1-15, Series of 2015)
11. Valid Election – The CE is valid when at least a majority of all
eligible voters in the BU were able to cast their votes.
A valid election will bar any union from filing a petition for CE
within 1 year from the holding of the election (Election Bar Rule)
The Med-Arbiter will proclaim the election results and certify
the winning union as the CB agent as long as there is no protest within
5 days from the close of the election proceedings and no challenge or
eligibility issue was raised, or if one was raised, the resolution of the
same will not materially alter the election results.
f) Consent election
If parties’ consents during the preliminary conference the Med-Arbiter
will no longer resolve the merits of the petition for CE and will proceed
to a pre-election conference to discuss the mechanics of the consent
election. If not, Med-Arbiter will resolve the merits of the petition by
either dismissing it or directing the holding of a CE.
g) Affiliation and disaffiliation of the local union from the mother
union
*What is the effect of affiliation?
A LU which affiliates with a federation/NU becomes subject to the rules
and regulations of the latter. The federation is the agent and the local
union, the principal.
An independently registered union does not lose its independent legal
personality when it affiliates with a federation/NU. Appending the
name of the federation to the local union’s name does not mean that
the federation absorbed the latter.
A local union may disaffiliate at any time from its mother federation,
absent any showing that the same is prohibited under its constitution
or rules. Such disaffiliation, however, does not result in it losing its
legal personality. A local union does not owe its existence to the
federation with which it is affiliated. It is a separate and distinct
voluntary association owing its creation to the will of its members. The
mere act of affiliation does not divest the local union of its own
personality, neither does it give the mother federation the license to
act independently of the local union. It only gives rise to a contract of
agency where the former acts in representation of the latter. In the
present case, whether the FFW went against the will of its principal
(the member-employees) by pursuing the case despite the signing of
the MOA, is not for the Court, nor for respondent employer to
determine, but for the Union and FFW to resolve on their own pursuant
10
to their principal-agent relationship. Moreover, the issue of
disaffiliation is an intra-union dispute which must be resolved in a
different forum in an action at the instance of either or both the FFW
and the union or a rival labor organization, but not the employer as in
this case. (Cirtek Employees Labor Union-Federation of Free workers
vs. Cirtek Electronics, Inc., G.R. No. 190515. June 6, 2011).
It becomes mandatory for the BLR to check if the requirements under
Art. 234 of the LC have been sedulously complied with. If its
application for registration is vitiated by falsification and serious
irregularities, especially those appearing on the face of the application
and the supporting documents, a LO should be denied recognition as a
LLO. (Progressive Dev’t Corp.‐Pizza Hut v. Laguesma. G.R. No. 115077,
April 18, 1997).
This happens when there is a substantial shift in allegiance on the part
of the majority of the members of the union. In such a case, however,
the CBA continues to bind the members of the new or disaffiliated and
independent union up to determine the union which shall administer
the CBA may be conducted. (ANGLO‐KMU v. Samahan ng
Manggagawang Nagkakaisa sa Manila Bay Spinning Mills at J.P. Coats
G.R. No.118562, July 5, 1996).
Disaffiliation should be in accordance with the rules and procedures
stated in the constitution and by‐laws of the federation. A local union
may disaffiliate with its mother federation provided that there is no
enforceable provision in the federation’s constitution preventing
disaffiliation of a local union. (Tropical Hut Ees Union v. Tropical Hut
G.R. Nos. L‐43495‐99, Jan. 20, 1990).
Disaffiliation should always carry the will of the majority. It cannot be
effected by a mere minority group of union members. The obligation to
check-off federation dues is terminated with the valid disaffiliation of
the local union from the federation with which it was previously
affiliated. Once a Local Chapter disaffiliates from the federation, it
ceases to be entitled to the rights and privileges granted to a legitimate
labor organization. It cannot file a petition for certification election.
(Villar vs. Inciong. 121 SCRA 444, April 20, 1983).
The Supreme Court upheld the right of local unions to separate from
their mother federation on the ground that as separate and voluntary
associations, local unions do not owe their creation and existence to
the national federation to which they are affiliated but, instead, to the
will of their members. The sole essence of affiliation is to increase, by
collective action, the common bargaining power of local unions for the
effective enhancement and protection of their interests. Admittedly,
there are times when without succor and support local unions may find
it hard, unaided by other support groups, to secure justice for
themselves. (Liberty Cotton Mills Workers Union Vs. Liberty Cotton
Mills, Inc. G.R. No. L-33987, September 4, 1975).
*What is a workers’ association?
Is any association of workers organized for the mutual aid and
protection of its members or for any legitimate purpose other than
collective bargaining. Registration with the BLR makes it a legitimate
worker’s association.
*What is the distinction between a LO and a WA?
A LO is established principally for collective bargaining purposes, while
a WA is organized for mutual aid and protection of its members but not
for collective bargaining purposes.
*What is meant by “cancellation proceedings” against LO or WA?
It refers to the legal process leading to the revocation of the legitimate
status of a union/WA. Subject to the requirements of notice and due
process, the registration of any legitimate independent labor union,
local chapter and WA may be cancelled by the RD, or in the case of
federations, NU or industry and trade union centers, by the Bureau
Director, upon the filing of an independent complaint or petition for
cancellation.
11
The cancellation of a certificate of registration is the equivalent of
snuffing out the life of the labor organization. For without such
registration, it loses, as a rule, its rights under the LC. The union is
indisputably entitled to be heard before a judgement could be
rendered cancelling its certificate of registration.
*What are the grounds for cancellation of union registration?
1. Misrepresentation – “False statement or Fraud in” –
Adoption/ratification of the union’s CBL
- List of members
who took part
- Minutes
ratification
2. Misrepresentation – “False statement or Fraud in” – Election of
officers
- List of voters
- Minutes of
election
3. Voluntary Dissolution by the members
*What is the effect of cancellation during the pendency of a case?
In case cancellation of a union registration is made during the
pendency of a case, the LO whose registration is cancelled may still
continue to be a party to the case without necessity for substitution.
Whatever decision, however, may be rendered therein shall only be
binding on those members of the union who have not signified their
desire to withdraw from the case before its trial and decision on the
merits (Itogon-Suyoc Mines, Inc. V. Sangilo-Itogon Workers Union, 24
SCRA 837)
The non-renewal of registration or permit does not result in the
dismissal of a case pending with the DOLE. The reason is that, at the
time of the filing of the case, it has juridical personality and the
respondent court had validly acquired jurisdiction over the case.
*May registration of a LO be cancelled due to non-compliance with
reportorial requirements?
NO. Art. 251(last par) of the LC – failure to comply with the above
requirements shall not be a ground for cancellation of union
registration but shall subject the erring officers or members to
suspension, expulsion from membership, or any appropriate penalty.
(i) Substitutionary Doctrine
The Er cannot revoke the validly executed CB contract with their Er by
the simple expedient of changing their bargaining agent. The new
agent must respect the contract. It cannot be invoked to support the
contention that a newly certified CB agent automatically assumes all
the personal undertakings of the former agent‐like the “no strike
clause” in the CBA executed by the latter. (Benguet Consolidated Inc. v.
BCI Ees and Worker’s Union‐PAFLU. G.R. No. L‐24711, April 1968).
(h) Union dues and special assessments
LLO have the right to collect from its members membership
fees, union dues, and other special assessments. This right is subject to
the following limitations:
1. the imposition should be reasonable; (Art. 250(a), LC)
2. collective fees, dues or other contributions should be done by
persons duly authorized under the constitution and by-laws; (Art.
250(g), LC)
3. A receipt should be issued for every payment. (Art. 250(h),
LC)
Requisites for valid levy of special assessment: (Art. 250(n), LC)
In order to be valid, the imposition of SA and extraordinary fees must
comply with the following requirements:
1. a general membership meeting must be called for the
purpose;
2. majority of all the union members must adopt a written
resolution approving the levy of SA;
12
 3. the minutes of the meeting should be recorded by the union
secretary and attested by the union president; and
4. the minutes must contain the:
a. list of all members present;
b. votes cast;
c. purpose of the SA; and
d. recipient of the assessment or fees.
(i) Requirements for validity
*NOTE: Strict compliance with the prescribed requirements is required.
Failure to strictly comply with the prescribed requirements will
invalidate the SA. Substantial compliance will suffice, considering that
the SA will diminish the compensation of the union members.
Therefore:
1. a SA obtained in a local membership meeting is null and void
bec. the law requires a general membership meeting;
2. a SA based on a written resolution of majority of the union
members present during the meeting is null and void bec. the law
requires approval by majority of all the union members;
3. a SA based merely on the minutes of the meeting is null and
void, bec. the law requires a written resolution by union members;
(Palacol v. Ferrer-Calleja, 182 SCRA 710)
4. a SA based on a resolution of the board of directors of the LO
is likewise null and void bec. the law requires a resolution by the
majority of all the union members. (Stellar Insurance Services v. NLRC,
252 SCRA 323)
Check-Off of fees and assessments
It is the process whereby the employer, on agreement with the
CB agent and on prior authorization from the employees, deducts
union dues or assessments from the latter’s wages and remits them
directly to the union. (Holy Cross of Davao College v. Joaquin, 263 SCRA
358)
In order to be valid, the check-off of SA and other extraordinary
fee must be:
1. supported by an individual written authorization;
2. duly signed by the employee, and
3. specific as to amount, purpose and beneficiary of the
deduction. (Art. 250(o), LC)
*NOTE: The right of an incumbent CB agent to check-off union dues
and agency fees subsists during the pendency of a petition for CE and
even during the pendency of intra-union or inter-union disputes and
other related labor relations disputes.
When individual check-off authorization is not required
1. Agency fees from non-union members who accept the
benefits under the CBA (Art. 259(e), LC)
2. Reasonable fees to finance mandatory activities under the LC.
(Art. 250(o), LC) ex. labor relations seminar and labor education
activities
Withdrawal of check-off authorization (withdrawal may be done
collectively even thought the authorization is individual in nature)
*NOTE: Right of union members to request for examination of the
Books of Accounts of the union (Art. 250(b) and (l), LC)
*NOTE: An action for examination or audit of union funds prescribes
after 3 years reckoned from whichever comes first of the following
dates:
1. the date of the submission of the annual financial report to
the DOLE RO; or
2. the date when the annual financial report should have been
submitted as required by law.
B. Right to collective bargaining
Jurisdictional preconditions in collective bargaining 1. Possession of the
status of majority representation of the employees representative in
accordance with any of the means of selection or designation provided
for the Labor Code 2. Proof of majority representation 3. A demand to
13
bargain under Art. 250 (a) of the LC. (Kiok Loy v. NLRC. G.R. No. L‐
54334, Jan. 22, 1986)
1. Duty to bargain collectively
a. When there is absence of a CBA
To meet and convene promptly in good faith for the purpose of
negotiating a CBA. It does not compel any party to agree.
b. When there is a CBA
Neither party shall terminate nor modify the CBA. To keep the
status quo, to continue in full force all the CBA terms until a new CBA is
signed.
Procedure in CB
1. written notice of intent, with written proposals;
2. written reply within 10 calendar days;
3. Conference within 10 calendar days from receipt of the
request;
4. NCMB to intervene through conciliation;
5. Settle the dispute or have it submitted to voluntary
arbitration
Other options:
a. notice of strike/lockout
b. compulsory arbitration
Where there is a legitimate representation issue, there is no duty to
bargain collectively on the part of the Employer. (Lakas ng mga
Manggagawang Makabayan v. Marcelo Enterprises. G.R. No. L‐38258,
Nov. 19, 1982).
There is no perfect test of good faith in bargaining. The GF or BF is an
inference to be drawn from the facts and is largely a matter for the
NLRC’s expertise. The charge of BF should be raised while the
bargaining is in progress. With the execution of the CBA, BF can no
longer be imputed upon any of the parties thereto. All provisions in the
CBA are supposed to have been jointly and voluntarily incorporated
therein by the parties. This is not a case where private respondent
exhibited an indifferent attitude towards CB because the negotiations
were not the unilateral activity of petitioner union. The CBA is good
enough that private respondent exerted “reasonable effort of GF
bargaining. (Samahang Manggagawa sa Top Form Manufacturing‐
United Workers of the Phils v. NLRC. G.R. No. 113856, Sept. 7,
1998).
This is no different from a bargaining representative’s perseverance to
include one that they deem of absolute necessity. Indeed, an adamant
insistence on a bargaining position to the point where the negotiations
reach an impasse does not establish bad faith. Obviously, the purpose
of CB is the reaching of an agreement resulting in a contract binding on
the parties; but the failure to reach an agreement after negotiations
have continued for a reasonable period does not establish a lack
of good faith. The statutes invite and contemplate a collective
bargaining contract, but they do not compel one. The duty to bargain
does not include the obligation to reach an agreement. While
the law makes it an obligation for the Er and the Ees to bargain
collectively with each other, such compulsion does not include the
commitment to precipitately accept or agree to the proposals of the
other. All it contemplates is that both parties should approach the
negotiation with an open mind and make reasonable effort to reach a
common ground of agreement. (Union of Filipro Ees v. Nestle Phils.
G.R. Nos. 158930‐31, Mar. 3, 2008).
2. Collective Bargaining Agreement (CBA). (Law of the Plant)
What is a CBA?
Refers to the negotiated contract between a LLO and the
employer concerning wages, hours of work and all other terms and
conditions of employment in a bargaining unit. The CBA is deemed the
law between the parties during its lifetime. Its provisions are construed
liberally.
14
Characteristics of CB
1. Continuing legal relationship
2. Process of adjustment
3. Contract of reasonable benefits
4. Contract of relative equality
5. Agency of participatory democracy
What are the legal principles applicable to a CBA?
1. Proposal not embodied in the CBA is not a part thereof;
2. Minutes of the CBA negotiations – no effect if its contents are not
incorporated in the CBA;
3. Making a promise during the CBA negotiations is not considered bad
faith.
4. Adamant stance resulting in impasse is not bad faith;
5. The SOL cannot order the inclusion of terms and conditions in the
CBA which the law and the parties did not intend to reflect therein;
6. Signing bonus, not demandable under the law; and
7. Allegations of bad faith, wiped out with signing of the CBA.
As regular employees, petitioners fall within the coverage of the
bargaining unit and are therefore entitled to CBA benefits as a matter
of law and contract. Under the terms of the CBA, petitioners are
members of the appropriate bargaining unit because they are regular
rank-and-file employees and do not belong to any of the excluded
categories. Most importantly, the labor arbiter’s decision of January 17,
2002 – affirmed all the way to the CA – ruled against the company’s
submission that they are independent contractors.
Thus, as regular rank-and-file employees, they fall within the CBA
coverage. And, under the CBA’s express terms, they are entitled to its
benefits. CBA coverage is not only a question of fact, but of law and
contract. The factual issue is whether the petitioners are regular rank-
and-file employees of the company. The tribunals below uniformly
answered this question in the affirmative. From this factual finding
flows legal effects touching on the terms and conditions of the
petitioners’ regular employment. (Farley Fulache, et al. vs. ABS-CBN
Broadcasting Corporation. G.R. No. 183810, January 21, 2010).
The certification of the CBA by the BLR is not required to make such
contract valid. Once it is duly entered into and signed by the parties, a
CBA becomes effective as between the parties whether or not it has
been certified by the BLR. (Liberty Flour Mills Ee’s Association v. Liberty
Flour Mills. G.R. Nos. 58768‐70, Dec. 29, 1989).
A CBA is not an ordinary contract but one impressed with public
interest, only provisions embodied in the CBA should be so
interpreted and complied with. Where a proposal raised by a
contracting party does not find print in the CBA, it is not a part thereof
and the proponent has no claim whatsoever to its implementation.
(SMTFM‐UWP v. NLRC. G.R. No. 113856, Sept. 7, 1998).
A pending cancellation proceeding is not a bar to set mechanics for
collective bargaining (CB). If a certification election may still be held
even if a petition for cancellation of a union’s registration is pending,
more so that the CB process may proceed. The majority status of the
union is not affected by the cancellation proceedings. (Capitol Medical
Center v. Trajano. G.R. No. 155690, June 30, 2005).
Although a CBA has expired, it continues to have legal effects as
between the parties until a new CBA has been entered into. (Pier &
Arrastre Stevedoring Services, Inc. v. Confessor. G.R. No. 110854,
February 13, 1995).
Parts of a CBA
1. Preamble or the Introduction
2.Recognition of the majority status of the contracting union and its
right to exclusively represent the members of the CBU
3. Management Prerogative
4. Union prerogative – the right of the union to discipline its members
15
5. Scale of wages – provisions intended to prevent discrimination in the
ayment of different types of worker and to avoid wage distortion Stages in CB
6. Promotion of employees 1. Preliminary – sending of a written notice to bargain;
7. Leave of absence – provisions for leave benefits lick sick, maternity 2. Negotiation – stage when parties provide proposals and counter
and the like proposals (legislative phase)
8. Union Security Clause – stipulations whereby the employer 3. Execution – signing of the agreement
undertakes to recognize the right of the union who negotiated the CBA 4. Publication – posting of the agreement (2 copies of the signed CBA
to maintain and protect its members by imposing certain terms and shall be posted for at least 5 days prior to the day of ratification in 2
conditions in hiring employees and retention of employment conspicuous areas in each workplace of the employer units concerned)
9. Grievance machinery and voluntary arbitration (Conclusive 5. Ratification – by the majority of all the workers in the bargaining unit
arbitration caluse) represented in the negotiation. Said CBA shall effect only those
10. Check-off employees in the BU who ratified it.
11. No-strike, no-lockout clause 6. Registration – the CBA shall be registered with the DOLE RO
12. Escalator Clause – is an agreement which provides that wages shall 7. Administration – the implementation of the CBA provisions which
gradually increase in the event of sudden increase of consumer price or shall be jointly administered by the management and the bargaining
cost-of-living index agent for a period of 5 years. (executive phase)
13. Family planning 8. Interpretation and Application – in case of ambiguity in the
14. Drug-free provision interpretation, it shall be construed in favour of labor (judicial phase)
15. Labor education
16. Effectivity clause a. Mandatory provisions of CBA
17. Interpretation clause i. Grievance procedure
CBA is the law or contract between the parties. Article 13.1 of the CBA
What are the mandatory subjects of bargaining? entered into by and between respondent GCI and AMOSUP provides
1. wages and other types of compensation, including merit increase; that the Company and the Union agree that in case of dispute or
2. working hours and working days, including work shifts; conflict in the interpretation or application of any of the provisions of
3. vacation and holidays; this Agreement, or enforcement of Company policies, the same shall be
4. bonuses; settled through negotiation, conciliation or voluntary arbitration.
5. pensions and retirement plan; (Dulay vs. Aboitiz Jebsen Maritime, Inc. and General Charterers, Inc.
6. seniority; G.R. No. 172642, June 13, 2012)
7. transfer;
8. lay-offs; ii. Voluntary arbitration
9. employee workload; Article 217 of the Labor Code states that unfair labor practices and
10. work rules and regulations; termination disputes fall within the original and exclusive jurisdiction of
11. rent of company houses; and the Labor Arbiter. As an exception, under Article 262 the Voluntary
12. union security arrangements. Arbitrator, upon agreement of the parties, shall also hear and decide all
16
other labor disputes including unfair labor practices and bargaining
deadlocks. For the exception to apply, there must be agreement
between the parties clearly conferring jurisdiction to the voluntary
arbitrator. Such agreement may be stipulated in a collective bargaining
agreement. However, in the absence of a collective bargaining
agreement, it is enough that there is evidence on record showing the
parties have agreed to resort to voluntary arbitration. (The University
of the Immaculate Conception, et al. vs. NLRC, et al., G.R. No. 181146,
January 26, 2011).
Under voluntary arbitration, on the other hand, referral of a dispute
by the parties is made, pursuant to a voluntary arbitration clause in
their collective agreement, to an impartial third person for a final and
binding resolution. Ideally, arbitration awards are supposed to be
complied with by both parties without delay, such that once an award
has been rendered by an arbitrator, nothing is left to be done by both
parties but to comply with the same. After all, they are presumed to
have freely chosen arbitration as the mode of settlement for that
particular dispute. Pursuant thereto, they have chosen a mutually
acceptable arbitrator who shall hear and decide their case. Above all,
they have mutually agreed to be bound by said arbitrator's decision.
(Luzon Dev’t Bank v. Ass’n of Luzon Dev’t Bank Ees G.R. No. 120319,
Oct. 6, 1995).
iii. No strike-no lockout clause
The “no strike‐no lockout” clause in the CBA applies only to economic
strikes. It does not apply to ULP strikes. Hence, if the strike is founded
on an unfair labor practice of the employer, a strike declared by the
union cannot be considered a violation of the no strike clause. (Master
Iron Labor Union v. NLRC. G.R. No. 92009, Feb. 17, 1993).
Note (Poquiz): A strike can be waived under this clause
b. Labor Management Council
To effect the right of workers to participate in policy and
decision-making processes, workers and employers may form LMC. The
representatives of the workers shall be elected by at least the majority
of all employees in said establishment.
c. Duration
Article 253 of the Labor Code mandates the 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 prior to the expiration
of the old CBA and/or until a new agreement is reached by the parties.
The law does not provide for any exception nor qualification on which
economic provisions of the existing agreement are to retain its force
and effect. Likewise, the law does not distinguish between a CBA duly
agreed upon by the parties and an imposed CBA. The provisions of the
imposed CBA continues to have full force and effect until a new CBA is
entered into by the parties. (General Milling Corporation Independent
Labor Union [GMC-ILU] vs. General Milling Corporation G.R. Nos.
183122/183889, June 15, 2011).
While the parties may agree to extend the CBA’s original five-year term
together with all other CBA provisions, any such amendment or term in
excess of five years will not carry with it a change in the union’s
exclusive collective bargaining status. By express provision of the
above-quoted Article 253-A, the exclusive bargaining status cannot go
beyond five years and the representation status is a legal matter not
for the workplace parties to agree upon. In other words, despite an
agreement for a CBA with a life of more than five years, either as an
original provision or by amendment, the bargaining union’s exclusive
bargaining status is effective only for five years and can be challenged
within sixty (60) days prior to the expiration of the CBA’s first five years.
(FVC Labor Union-Philippine Transport and General Workers
Organization (FVCLU-PTGWO) Vs. Sama-samang Nagkakaisang
Manggagawa sa FVC-Solidarity of Independent and General Labor
Organization (SANAMA-FVC-SIGLO. G.R. No. 176249, November 27,
2009)
17
Under the principle of hold over, until a new CBA has been executed by
and between the parties, they are duty bound to keep the status quo
and must continue in full force and effect the terms and conditions of
the existing agreement. The law does not provide for any exception or
qualification as to which of the economic provisions of the existing
agreement are to retain force and effect. Therefore, it must be
encompassing all the terms and condition in the said agreement. (New
Pacific Timber v. NLRC. G.R. No. 124224, Mar. 17, 2000).
The signing of the CBA does not determine whether the agreement was
entered into within the 6 month period from the date of expiration of
the old CBA. In the present case, there was already a meeting of the
minds between the company and the union prior to the end of the 6
month period after the expiration of the old CBA. Hence, such meeting
of the mind is sufficient to conclude that an agreement has been
reached within the 6 month period as provided under Art. 253‐A of
the LC. (Mindanao Terminal and Brokerage Services Inc., v. Confessor.
G.R. No. 111809, May 5, 1997).
The CBA arbitral awards granted 6 months from the expiration of the
last CBA shall retroact to such time agreed upon by both the Er and the
union. Absent such agreement as to retroactivity, the award shall
retroact to the 1st day after the 6 month period following the
expiration of the last day of the CBA should there be one. In the
absence of a CBA, the SLE’s determination of the date of retroactivity
as part of his discretionary powers over arbitral award shall control.
(Manila Electric Company v. Quisumbing. G.R. No. 127598, Feb. 22 and
Aug. 1, 2000).
There is no conflict between the agreement and Art. 253‐A of the LC for
the latter has a 2‐fold purpose namely: a) to promote industrial
stability and predictability and b) to assign specific time tables wherein
negotiations become a matter of right and requirement. In so far
as the first purpose, the agreement satisfies the first purpose. As
regard the second purpose, nothing in Art. 253‐A prohibits the parties
from waiving or suspending the mandatory timetables and agreeing
on the remedies to enforce the same. For under the said article, the
representation limit of the exclusive bargaining agent applies only
when there is an existing CBA in full force and effect. In this case,
the parties agreed to suspend the CBA and put in abeyance the limit on
representation. (Rivera v. Espiritu. G.R. No. 135547, Jan. 23, 2002).
3. Union Security
Union security clauses; closed shop, union shop, maintenance of
membership shop, etc.
Agency shop is a form of union security clause. It is an arrangement
whereby non-members of the contracting union must pay the union a
sum equal to union dues known as “agency fees” for the benefits they
received as a consequence of the bargaining negotiations effected
through the efforts of the union. (Anti-hitchhiker or free-rider clause)
Closed-shop is a form of union security. A closed-shop may be defined
as an enterprise in which, by agreement between the employer and his
employees or their representatives, no person may be employed in any
or certain agreed departments of the enterprise unless he or she is,
becomes, and, for the duration of the agreement, remains a member in
good standing of a union entirely comprised of or of which the
employees in interest are a part.
Union shop – workers under this agreement are not required to be
union members when hires; but to maintain continued employment,
they must continue to pay union dues and must become union
members also after sometime. This clause requires new employees
must join the CB agent in the company premises within a specified
period of time.
Maintenance of membership – non-members are not required to join
the union, but those who do join must maintain their membership for
the duration of the union contract under penalty of discharge.
18
What is indubitable from the Union Shop Clause is that upon the
effectivity of the CBA, petitioner’s new regular employees (regardless
of the manner by which they became employees of BPI) are required to
join the Union as a condition of their continued employment. (Bank of
the Philippine Islands vs. BPI Employees Union-Davao Chapter G.R. No.
164301. October 19, 2011).
In terminating the employment of an employee by enforcing the union
security clause, the employer needs to determine and prove that:
(1) the union security clause is applicable; (2) the union is requesting
for the enforcement of the union security provision in the CBA; and
(3) there is sufficient evidence to support the decision of the union to
expel the employee from the union. These requisites constitute just
cause for terminating an employee based on the union security
provision of the CBA. (Picop Resources Incorporated (PRI) vs. Anacleto
L. Tañeca, et al., G.R. No. 160828, August 9, 2010).
GMC completely missed the point that the expulsion of Casio, et al. by
the union and the termination of employment of the same employees
by GMC, although related, are two separate and distinct acts. Despite
a closed shop provision in the CBA, law and jurisprudence impose upon
GMC the obligation to accord Casio, et al. substantive and procedural
due process before complying with the union’s demand to dismiss the
expelled union members from service. The failure of GMC to carry out
this obligation makes it liable for illegal dismissal of Casio, et al.
(General Milling Corporation vs. Ernesto Casio, et al. and Virgilio Pino,
et al., G.R. No. 149552, March 10, 2010).
While it is true that the withdrawal of support may be considered as a
resignation from the union, the fact remains that at the time of the
union’s application for registration, the affiants were members of the
union and they comprised more than the required 20% membership for
purposes of registration as a labor union. Article 234 of the Labor Code
merely requires a 20% minimum membership during the application for
union registration. It does not mandate that a union must maintain the
20% minimum membership requirement all throughout its existence.
(Mariwasa Siam Ceramics, Inc. vs. The Secretary of the Department of
Labor and Employment, et al., G.R. No. 183317, December 21, 2009).
Article 222(b) of the Labor Code, as amended, prohibits the payment of
attorney’s fees only when it is effected through forced contributions
from the employees from their own funds as distinguished from union
funds. Hence, the general rule is that attorney’s fees, negotiation fees,
and other similar charges may only be collected from union funds, not
from the amounts that pertain to individual union members. As an
exception to the general rule, special assessments or other
extraordinary fees may be levied upon or checked off from any amount
due an employee for as long as there is proper authorization by the
employee. A check-off is a process or device whereby the employer, on
agreement with the Union, recognized as the proper bargaining
representative, or on prior authorization from the employees, deducts
union dues or agency fees from the latter’s wages and remits them
directly to the Union. Its desirability in a labor organization is quite
evident. The Union is assured thereby of continuous funding. The
system of check-off is primarily for the benefit of the Union and, only
indirectly, for the individual employees. These requisites are: (1) an
authorization by a written resolution of the majority of all the union
members at the general membership meeting duly called for the
purpose; (2) secretary’s record of the minutes of the meeting; and (3)
individual written authorization for check-off duly signed by the
employee concerned. (Eduardo J. Mariño, Jr. et al. vs. Gil Y. Gamilla, et
al.. G.R. No. 149763, July 7, 2009).
A shop steward leads to the conclusion that it is a position within the
union, and not within the company. A shop steward is appointed by the
union in a shop, department, or plant and serves as representative of
the union, charged with negotiating and adjustment of grievances of
employees with the supervisor of the employer. He is the
representative of the union members in a building or other workplace.
Black’s Law Dictionary defines a shop steward as a union official
19
elected to represent members in a plant or particular department. His
duties include collection of dues, recruitment of new members and
initial negotiations for the settlement of grievances. A judgment of
reinstatement of the petitioner to the position of union Shop Steward
would have no practical legal effect since it cannot be enforced. Based
on the requirements imposed by law and the APCWU-ATI CBA, and in
the nature of things, the subsequent separation of the petitioner from
employment with respondent ATI has made his reinstatement to union
Shop Steward incapable of being enforced. (Teodoro S. Miranda, Jr. vs.
Asian Terminals, Inc. and Court of Appeals, G.R. No. 174316, June 23,
2009).
“Union security” is a generic term, which is applied to and
comprehends “closed shop,” “union shop,” “maintenance of
membership” or any other form of agreement which imposes upon
employees the obligation to acquire or retain union membership as a
condition affecting employment. There is union shop when all new
regular employees are required to join the union within a certain
period as a condition for their continued employment. There is
maintenance of membership shop when employees, who are union
members as of the effective date of the agreement, or who thereafter
become members, must maintain union membership as a condition for
continued employment until they are promoted or transferred out of
the bargaining unit or the agreement is terminated. A closed-shop, on
the other hand, may be defined as an enterprise in which, by
agreement between the employer and his employees or their
representatives, no person may be employed in any or certain agreed
departments of the enterprise unless he or she is, becomes, and, for
the duration of the agreement, remains a member in good standing of
a union entirely comprised of or of which the employees in interest are
a part.
In terminating the employment of an employee by enforcing the
Union Security Clause, the employer needs only to determine and
prove that:
(1) the union security clause is applicable;
(2) the union is requesting for the enforcement of the union security
provision in the CBA; and (3) there is sufficient evidence to
support the union’s decision to expel the employee from the union or
company. (Herminigildo Inguillom, et al. vs. First Philippine Scales, Inc.,
et al. G.R. No. 165407, June 5, 2009)
4. Unfair Labor Practice in collective bargaining
a. Bargaining in bad faith
The act of the employer in refusing to comply with the terms and
conditions of a CBA constitutes bargaining in bad faith and is
considered an unfair labor practice. (Oceanic Pharmacal Employees
Union vs. Inciong. G. R. No. L-50568, Nov. 7, 1979).
b. Refusal to bargain
The procedure in collective bargaining prescribed by the LC is
mandatory bec. of the basic interest of the State in ensuring lasting
industrial peace. Thus, the employer’s failure to make a timely reply to
the proposals presented by the union within 10 calendar days is
indicative of its utter lack of interest in bargaining with the union. Its
refusal to amke a counter-proposal for CBA negotiation is an indication
of its bad faith and it is a clear evasion of the duty to bargain
collectively which is ULP.
For failure to submit any counter proposal to the CBA proposed by its
employees’ certified bargaining agent, the employer had thereby lost
its right to bargain the terms and conditions of the CBA. Thus, the CBA
proposed by its employees’ union – lock, stock and barrel is imposed
upon an erring employer (General Milling Corp. v.CA, G.R. No. 146728,
February 11, 2004)
c. Blue sky bargaining
Whether or not the union is engaged in blue‐sky bargaining is
determined by the evidence presented by the union as to its economic
demands. Thus, if the union requires exaggerated or unreasonable
economic demands, then it is guilty of ULP. In order to be considered as
20
unfair labor practice, there must be proof that the demands made by
the union were exaggerated or unreasonable. In the minutes of the
meeting show that the union based its economic proposals on data of
rank-and-file employees and the prevailing economic benefits received
by bank employees from other foreign banks doing business in the
Philippines and other branches of the bank in the Asian region. Hence,
it cannot be said that the union was guilty of ULP for blue-sky
bargaining. (Standard Chartered Bank v. Confessor. G.R. No. 114974,
June 16, 2004).
d. Surface bargaining
Surface bargaining” is defined as “going through the motions of
negotiating” without any legal intent to reach an agreement. The
resolution of surface bargaining allegations never presents an easy
issue. The determination of whether a party has engaged in unlawful
surface bargaining is usually a difficult one because it involves, at
bottom, a question of the intent of the party in question, and usually
such intent can only be inferred from the totality of the challenged
party’s conduct both at and away from the bargaining table. Whether
an employer’s conduct demonstrates an unwillingness to bargain in
good faith or is merely hard bargaining. There can be no surface
bargaining, absent any evidence that management had done acts, both
at and away from the bargaining table, which tend to show that it did
not want to reach an agreement with the union or to settle the
differences between it and the union. Here, admittedly, the parties
were not able to agree and reached a deadlock. However, it must be
emphasized that the duty to bargain “does not compel either party to
agree to a proposal or require the making of a concession.” Hence, the
parties’ failure to agree does not amount to ULP under Article 248 [g]
for violation of the duty to bargain. (Standard Chartered Bank
Employees Union [NUBE] vs. Confesor. G. R. No. 114974, June 16,
2004).
e. Unfair Labor Practice (ULP)
1. Nature of ULP
Anent the charge of unfair labor practice, Article 248 (a) of the Labor
Code considers it an unfair labor practice when an employer interferes,
restrains or coerces employees in the exercise of their right to self-
organization or the right to form an association. In order to show that
the employer committed unfair labor practice under the Labor Code,
substantial evidence is required to support the claim. Substantial
evidence has been defined as such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion. In the case at
bar, respondents were indeed unceremoniously dismissed from work
by reason of their intent to form and organize a union. (Park Hotel, et
al. vs. Manolo Soriano, et al. G.R. No. 171118. September 10, 2012).
Unfair labor practice refers to acts that violate the workers’ right to
organize. The prohibited acts are related to the workers’ right to self-
organization and to the observance of a CBA. Thus, an employer may
be held liable for unfair labor practice only if it can be shown that his
acts interfere with his employees’ right to self-organization. Since there
is no showing that the respondent company’s implementation of the
Right-Sizing Program was motivated by ill will, bad faith or malice, or
that it was aimed at interfering with its employees’ right to self-
organization, there is no unfair labor practice to speak of in this case.
(Nelson A. Culili v. Eastern Telecommunications Philippines, Inc., et al.
G.R. No. 165381, February 9, 2011).
Unfair labor practice refers to “acts that violate the workers’ right to
organize.” The prohibited acts are related to the workers’ right to self-
organization and to the observance of a CBA. Without that element,
the acts, even if unfair, are not unfair labor practices. (General Santos
Coca Cola Plant Free Workers Union-Tupas vs. COCA-COLA BOTTLERS
PHILS., INC. G.R. No. 178647. Feb. 13, 2007).
21

2. ULP of employers
a. Interference (it covers both restraint and coercion) – direct or
indirect
b. Restraint or coercion (Economic coercion – wage increase,
granting of bonuses, lay-offs, isolation of union president)
c. Prohibition against membership in a union (yellow0dog
contract) implieas that any person who signed such contract was a
cowardly dog bec. he had abandoned his guaranteed rights to self-
organization under the Constitution. He becomes subservient, like a
dog.
d. Company or captive unionism
e. Contracting out of services being performed by union
members
f. Acts of discrimination (dismissal or lay-off, closure or
shutdown, rehiring, transfer, retrenchment
g. Refusal to bargain
h. Gross violation of a CBA
i. Dismissal for giving testimony
j. Union security clauses
For a charge of unfair labor practice to prosper, it must be shown that
respondent CAB’s suspension of negotiation with CABEU-NFL and its
act of concluding a CBA with CABELA, another union in the bargaining
unit, were motivated by ill will, “bad faith, or fraud, or was oppressive
to labor, or done in a manner contrary to morals, good customs, or
public policy…” However, the facts show that CAB believed that CABEU-
NFL was no longer the representative of the workers. It just wanted to
foster industrial peace by bowing to the wishes of the overwhelming
majority of its rank and file workers and by negotiating and concluding
in good faith a CBA with CABELA.” Such actions of CAB are nowhere
tantamount to anti-unionism, the evil sought to be punished in cases of
unfair labor practices. (Central Azucarera De Bais Employees Union-
NFL, represented by its President, Pablito Saguran vs. Central Azucarera
De Bais, Inc. G.R. No. 186605, November 17, 2010).
Unfair labor practice cannot be imputed to MMC since the call of MMC
for a suspension of the CBA negotiations cannot be equated to “refusal
to bargain.” Article 252 of the Labor Code defines the phrase “duty to
bargain collectively.” For a charge of unfair labor practice to prosper, it
must be shown that the employer was motivated by ill-will, bad faith or
fraud, or was oppressive to labor. The employer must have acted in a
manner contrary to morals, good customs, or public policy causing
social humiliation, wounded feelings or grave anxiety. It cannot be said
that MMC deliberately avoided the negotiation. It merely sought a
suspension and even expressed its willingness to negotiate once the
mining operations resume. There was valid reliance on the suspension
of mining operations for the suspension of the CBA negotiation. The
Union failed to prove bad faith. (Manila Mining Corp. Employees
Association, et al. vs.. Manila Mining corp, et al.,G.R. Nos. 178222-23,
September 29, 2010).
We found it proper to award moral and exemplary damages to illegally
dismissed employees as their dismissal was tainted with unfair labor
practice. The Court said: Unfair labor practices violate the
constitutional rights of workers and employees to selforganization, are
inimical to the legitimate interests of both labor and management,
including their right to bargain collectively and otherwise deal with
each other in an atmosphere of freedom and mutual respect; and
disrupt industrial peace and hinder the promotion of healthy and stable
labor-management relations. As the conscience of the government, it
is the Court’s sworn duty to ensure that none trifles with labor rights.
(Geronimo Q. Quadra vs. Court of Appeals G.R. No. 147593, July 31,
2006).
To constitute ULP, however, violations of the CBA must be gross. Gross
violation of the CBA, under Article 261 of the Labor Code, means
flagrant and/or malicious refusal to comply with the economic
provisions thereof. Evidently, the University can not be faulted for ULP
as it in good faith merely heeded the above-said request of Union
22
members. (Arellano University Employees and Workers Union vs Court
of Appeals, G.R. No. 139940, September 19, 2006).
Direct evidence that an Ee was in fact intended or coerced by the
statements of threats of the Er is not necessary if there is a reasonable
interference that the anti‐union conduct of the Er does have an adverse
effect on self‐organization and CB. (The Insular Life Assurance‐NATU v.
The Insular Life Co. Ltd. G.R. No.L‐25291, Jan. 30, 1971).
A company’s refusal to make counter‐proposal, if considered in relation
to the entire bargaining process, may indicate BF and this is especially
true where the union’s request for a counter proposal is left
unanswered. (Kiok Loy v. NLRC. G.R. No. L‐54334, Jan. 22, 1986).
ALU is the certified exclusive bargaining representative after winning
the certification election. The company merely relied on the letter of
disaffiliation by BFEA’s president without proof and consequently
refusing to bargain collectively constitutes ULP. Such refusal by the
company to bargain collectively with the certified exclusive bargaining
representative is a violation of its duty to collectively bargain which
constitutes ULP. (Balmar Farms v. NLRC. G.R. No.73504, Oct. 15, 1991)
(a) ULP of labor organizations
a. Restraint or coercion of employees
b. Featherbedding activities (make-work activities)
c. Discrimination against employees
d. Violation of duty to bargain collectively
e. Payment of negotiation or attorney’s fees
f. Gross violation of the CBA
g. Engaging in blue-sky bargaining, an ULP
A union member may not be expelled from the union, and
consequently from his job, for personal and impetuous reasons or for
causes foreign to the closed shop agreement. (Manila Mandarin
Ees Union v. NLRC. G.R. No. 76989, Sep. 29, 1987).
Labor unions are not entitled to arbitrarily exclude qualified applicants
for membership and a closed‐ shop applicants provision will not justify
the employer in discharging, or a union in insisting upon the discharge
of an employee whom the union thus refuses to admit to membership
without any reasonable ground thereof. (Salunga v. CIR. G.R. No. L‐
22456, Sep. 27, 1967).
Note (Poquiz): ULP's committed in the absence of employer-employee
relationship:
a) Agents of the employer or union who are non-employees may
commit ULP
b) In the case of yellow-dog contract, where ULP is committed by the
employer against an applicant to the job, and
c) In case of the application of the doctrine of innocent by-stander
1. Forms of concerted activities
WHAT IS STRIKE, PICKETING AND LOCKOUT?
1. STRIKE – means any temporary stoppage of work by the
concerted action of the employees as a result of an industrial or labor
dispute. (Art. 212 (o), Labor Code, as amended by Sec. 4, R. A. 6715)
2. PEACEFUL PICKETING – 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. (Guidelines Governing Labor Relations, October
19, 1987)
3. LOCKOUT – means the temporary refusal of an employer to
furnish work as a result of an industrial or labor dispute. (Article 212
(p) Labor Code, as amended by Section 4, R.A. 6715).
WHAT ARE THE DIFFERENT FORMS OF STRIKES?
1. LEGAL STRIKE – one called for a valid purpose and conducted
through means allowed by law.
23
2. ILLEGAL STRIKE – one staged for a purpose not recognized by law,
or if for a valid purpose, conducted through means not sanctioned by
law.
3. ECONOMIC STRIKE – one staged by workers to force wage or other
economic concessions from the employer which he is not required by
law to grant (Consolidated Labor Association of the Phil. vs. Marsman
and Company, 11 SCRA 589)
4. ULP STRIKE – one called to protest against the employer’s acts of
unfair labor practice enumerated in Article 248 of the Labor Code, as
amended, including gross violation of the collective bargaining
agreement (CBA) and union busting.
5. SLOWDOWN STRIKE – one staged without the workers
quitting their work but merely slackening or by reducing their
normal work output.
6. WILD-CAT STRIKE – one declared and staged without filing the
required notice of strike and without the majority approval of the
recognized bargaining agent.
7. SIT DOWN STRIKE – one where the workers stop working but do
not leave their place of work.
WHAT IS AN INDUSTRIAL DISPUTE?
A. An industrial or labor dispute includes any controversy or matter
concerning terms or conditions of employment or the association or
representation of persons in negotiating, fixing, maintaining, changing
or arranging the terms and conditions of employment regardless of
whether the disputants stand in the proximate relation of employer
and employee. (Article 212 (1) Labor Code, as amended by Section 4,
R.A. 6715)
WHAT IS THE NATURE OF THE RIGHT TO STRIKE AND
LOCKOUT?
The right to strike is a constitutional and legal right of the workers as
the employers have the inherent and statutory right to lockout, all
within the context of labor relations and collective bargaining. It is a
means of last resort and presupposes that the duty to bargain in good
faith has been fulfilled and other voluntary modes of dispute
settlement have been tried and exhausted. (Guidelines Governing
Labor Relations).
2. Who may declare a strike or lockout?
Any certified or duly recognized bargaining representative may declare
a strike in cases of bargaining deadlock and unfair labor
practice. Likewise, the employer may declare a lockout in the same
cases.
In the absence of a certified or duly recognized bargaining
representative, any legitimate labor organization in the establishment
may declare a strike but only on the ground of unfair labor practice.
(Section 2, Rule XIII, Book V, Omnibus Rules Implementing The Labor
Code, as amended).
3. Requisites for a valid strike/lockout
A. The requirements for a valid strike or lockout are
as follows:
It must be based on a valid and factual ground;
A strike or lockout NOTICE shall be filed with the National Conciliation
and Mediation Board (NCMB) at least 15 days before the intended
date of the strike or lockout if the issues raised are unfair labor
practices, or at least 30 days before the intended date thereof if the
issue involves bargaining deadlock.
In cases of dismissal from employment of union officers duly elected in
accordance with the union constitution and by-laws, which may
constitute UNION BUSTING where the existence of the union is
threatened, the 15-day cooling-off period shall not apply and the union
may take action immediately after the strike vote is conducted and the
result thereof submitted to the Department of Labor and Employment.
1. A strike must be approved by a majority vote of the members of the
Union and a lockout must be approved by a majority vote of the
members of the Board of Directors of the Corporation or Association
24
or of the partners in a partnership, obtained by secret ballot in a
meeting called for that purpose.
2. A strike or lockout VOTE shall be reported to the NCMB-DOLE
Regional Branch at least 7 days before the intended strike or lockout
subject to the cooling-off period.
In the event the result of the strike/lockout ballot is filed within the
cooling-off period, the 7-day requirement shall be counted from the
day following the expiration of the cooling-off period. (NSFW vs.
Ovejera, G.R. No. 59743, May 31, 1982)
In case of dismissal from employment of union officers which may
constitute union busting, the time requirement for the filing of the
Notice of Strike shall be dispensed with but the strike vote
requirement being mandatory in character, shall “in every case” be
complied with.
The dispute must not be the subject of an assumption of jurisdiction by
the President or the Secretary of Labor and Employment, a certification
for compulsory or voluntary arbitration nor a subject of a pending case
involving the same grounds for the strike or lockout.
WHAT ARE THE VALID GROUNDS FOR DECLARING A STRIKE OR
LOCKOUT?
The law recognizes two grounds for the valid exercise of the right to
strike or lockout, namely:
a. Collective Bargaining Deadlock (CBD) and/or
b. Unfair Labor Practice (ULP)
MAY A UNION FILE A NOTICE OF STRIKE OR THE EMPLOYER FILE A
NOTICE OF LOCKOUT IF THE LABOR DISPUTE IS BASED ON A GROUND
OTHER THAN ULP AND CBD?
No. The union/employer may not file a notice based on grounds other
than ULP and CBD. Violations 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 and no strike or lockout may be declared on
grounds involving inter-union and internal union disputes or on issues
brought to voluntary or compulsory arbitration including legislated
wage orders and labor standard cases.
However, if improvidently filed and it appears on the face of the notice
that the issues raised are non-strikeable or the real issues discovered
during conciliation proceedings are not proper subjects of a Notice of
Strike or Lockout, The NCMB Regional Branch shall dismiss motu
propio the notice without prejudice to further conciliation, or upon
request of either or both parties in which case, the Notice of Strike or
Lockout is treated as a Preventive Mediation Case. (See Definition of
Preventive Mediation Case under Appendix 3, Definition of Terms).
WHAT ARE THE CONTENTS OF A NOTICE OF STRIKE OR
LOCKOUT?
The notice shall state, among others, the names and addresses of the
employer and the union involved, the nature of the industry to which
the employer belongs, the number of union members and of the
workers in the bargaining unit, and such other relevant data as may
facilitate the settlement of the dispute, such as a brief statement or
enumeration of all pending labor disputes involving the same parties.
In cases of bargaining deadlocks, the notice shall, as far as practicable,
further state the unresolved issues in the bargaining
negotiations and be accompanied by the written proposals of the
union, the counter-proposals of the employer and the proof of a
request for conference to settle the differences.
In cases of unfair labor practice, the notice shall, as far as practicable,
state the acts complained of and the efforts taken to resolve the
dispute amicably.
WHAT IS THE ROLE OF THE NCMB IN CASE A NOTICE OF STRIKE OR
LOCKOUT IS FILED?
Upon receipt of a valid notice of strike or lockout, the NCMB, through
its Conciliator-Mediators, shall call the parties to a conference the
soonest possible time in order to actively assist them to explore all
25
possibilities for amicable settlement. To this end, the Conciliator-
Mediator may suggest/offer proposals as an alternative avenue for the
resolution of their disagreement/conflict which may not necessarily
bind the parties. In the event of failure in conciliation/mediation the
parties shall be encouraged to submit their dispute for voluntary
arbitration.
WHAT IS THE LEGAL IMPLICATION IF THE CONTENT-REQUIREMENT OF
THE NOTICE OF STRIKE OR LOCKOUT HAS NOT BEEN COMPLIED
WITH?
Any notice which does not conform with the foregoing requirements
shall be deemed not having been filed.
WHAT IS THE PURPOSE OF THE STRIKE VOTE?
To ensure that the decision to strike broadly rests with the majority of
the Union members in general and not with a mere minority, at the
same time, discourage wildcat strikes, union bossism and even
corruption.
WHAT IS THE PURPOSE OF THE STRIKE VOTE REPORT?
To ensure that a strike vote was indeed taken and in the event that the
report is false, to afford the members an opportunity to take the
appropriate remedy before it is too late.
WHAT IS PURPOSE OF THE TIME REQUIREMENT IN THE NOTICE OF
STRIKE/LOCKOUT?
The 15 and 30 days requirement is known as the Cooling-Off Period
designed to afford parties the opportunity to amicable resolve the
dispute with the assistance of the NCMB Conciliator/Mediator. Should
the dispute remain unsettled until the lapse of the required number of
days from the mandatory filing of the notice, the labor union may strike
or the employer may commence a lockout after having complied with
the 7-day requirement for the filing of the strike or lockout vote, as the
case may be.
WHAT IS THE CORRECT INTERPRETATION OF THE REQUIREMENT TO
OBSERVE THE COOLING-OFF PERIODS AND THE STRIKE
BAN?
The prescribed cooling-off period and the 7-day strike ban after
submission of report of strike vote are mandatory. The observance of
both periods must be complied with, although a labor union may take a
strike vote and report the same within the statutory cooling-off
period. The avowed intent of the law is to provide an opportunity for
mediation and conciliation. The waiting period, on the other hand, is
intended to provide opportunity for the members of the union or the
management to take the appropriate remedy in case the strike or
lockout vote report is false or inaccurate. Moreover, the cooling-off
and 7-day strike ban provisions of law are reasonable and valid
restrictions on the right to strike and these restrictions constitute a
valid exercise of police power of the State. If only the filing of the strike
notice and the strike vote report would be deemed mandatory, but not
the waiting periods so specifically and emphatically prescribed by law,
the purposes for which the filing of the strike notice and strike vote
report is required cannot be achieved. 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 vs.
Ovejera, 114 SCRA 354)
The seven (7) days waiting period is intended to give the Department
of Labor and Employment an opportunity to verify whether the
projected strike really carries the imprimatur of the majority of the
union members.
The need for assurance that the majority of the union members
support the strike cannot be gainsaid. Strike is usually the last weapon
of labor to compel capital to concede to its bargaining demands or to
defend itself against unfair labor practices of management. It is a
26
weapon that can either breathe life to or destroy the union and its
members in their struggle with management for a more equitable due
of their labors. The decision to wield the weapon of strike must,
therefore, rest on a rational basis, free from emotionalism, unswayed
by the tempers and tantrums of a few hotheads, and firmly focused on
the legitimate interest of the union which should not, however, be
antithetical to the public welfare.
Thus, our laws require the decision to strike to be the consensus of the
majority for while the majority is not infallible, still, it is the best hedge
against haste and error. In addition, a majority vote assures the union
it will go to war against management with the strength derived from
unity and hence, with better chance to succeed. (Lapanday Workers
Union, Tomas N. Basco vs. NLRC and Lapanday Agricultural
Development Corporation, G.R. Nos. 95494-97, 7 September 1995)
WHAT ARE THE PROHIBITED ACTS AND PRACTICES?
1. Declaring a strike or lockout on grounds involving inter-union
and intra-union disputes or on issues brought to voluntary or
compulsory arbitration.
2. Declaring a strike or lockout without first having bargained
collectively or without first having filed the required notice or without
the necessary strike or lockout vote first having been obtained and
reported to the Regional Branch of the NCMB.
3. Declaring a strike or lockout in defiance of a cease-and-desist
order, or an order for the striking employees to return to work and for
the employer to accept the workers after assumption of jurisdiction
by the President or Secretary of Labor and Employment, or after
certification or submission of the dispute to compulsory or voluntary
arbitration, or during the pendency of a case involving the authorized
grounds for the strike or lockout.
4. 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.
5. Employing any strike breaker or being employed as a strike-
breaker.
6. No public official or employee, including officers and personnel
of the Armed Forces of the Philippines, of the Philippine National
Police, or any armed person shall bring in, introduce or escort, in any
manner, any individual who seeks to replace strikers in entering or
leaving the premises of a strike area, or work in place of strikers.
Nothing herein shall be interpreted to prevent the aforementioned
officials, employees or peace officers from taking any measure
necessary to maintain peace and order and/or to protect life and
property.
7. Stationary picket and the use of means like placing of objects to
constitute permanent blockade or to effectively close points of entry or
exit in company premises.
8. Any act of violence, coercion or intimidation by any picketer.
9. The obstruction of the free ingress to or egress from the
employer’s premises for lawful purposes.
10. Obstruction of public thoroughfares while engaged in picketing.
WHAT ARE THE LEGAL IMPLICATIONS FOR NON-COMPLIANCE WITH
THE REQUIREMENTS FOR A VALID STRIKE OR
LOCKOUT?
The requirements for a valid strike or lockout are mandatory in
character and non-compliance therewith is sufficient ground to declare
the strike or lockout illegal.
If a strike is declared illegal, the employer may be authorized to
terminate the employment of union officials who knowingly
participated in the illegal strike and/or any worker or union officer who
knowingly participated in the commission of other illegal acts during
the strike.
27
In case the lockout is declared illegal, any worker whose employment
has been terminated as a consequence thereof may be entitled to re-
instatement including payment of full backwages and other benefits.
WHEN A DISPUTE SUBJECT OF A NOTICE OF STRIKE IS
FORTHWITH TREATED AS A PREVENTIVE MEDIATION CASE, MAY THE
UNION LATER ON STAGE A STRIKE ON ACCOUNT OF THE SAME
DISPUTE?
No. Once the dispute has been converted into a preventive mediation
case, the notice of strike is deemed dropped from the dockets as if no
notice of strike has been filed. Since there is no more notice of strike
to speak about, any strike subsequently staged by the Union is deemed
not to have complied with the requirements of a valid strike. The same
rule applies in the case of lockout by an employer, (PAL vs. Sec. of
Labor)
WHO HAS THE DUTY TO DECLARE THAT THE NOTICE OF
STRIKE/LOCKOUT HAS BEEN CONVERTED INTO PREVENTIVE
MEDIATION CASE?
Upon the recommendation of the Conciliator/Mediator handling the
labor dispute, the Director of the Regional Branch of the NCMB which
has jurisdiction over the labor dispute has the duty to declare and
inform the parties that the issues raised or the actual issues involved
are not proper subjects of a Notice of Strike or Lockout and that the
Notice of Strike or Lockout has been converted into a Preventive
Mediation Case without prejudice to further conciliation or upon the
request of either or both parties.
MAY A LABOR DISPUTE SUBJECT OF A NOTICE OF STRIKE OR
LOCKOUT, MATURE INTO A VOLUNTARY ARBITRATION CASE?
Yes. By mutual agreement, the parties may decide to bring the matter
for resolution before an accredited voluntary arbitrator of their choice,
in which case the Notice is deemed automatically withdrawn and
dropped from the dockets.
WHEN MAY A STRIKE OR LOCKOUT BE DECLARED
ILLEGAL?
A strike or lockout may be declared illegal if any of the requirements
for a valid strike or lockout is not complied with.
It may also be declared illegal if it is based on non-strikeable issues or if
the issues involved are already the subject of arbitration.
During a strike or lockout, when either of the parties commit prohibited
acts or practices, the strike or lockout may be declared illegal.
WHO HAS JURISDICTION TO DETERMINE THE LEGALITY OF STRIKE
AND LOCKOUT?
In general, the Labor Arbiter in the appropriate Arbitration Branch of
the National Labor Relations Commission has the power to determine
questions involving the legality or the illegality of a strike or lockout
upon the filing of a proper complaint and after due hearing.
Where the matter of legality or illegality of strike is raised in the
dispute over which the Secretary assumed jurisdiction or in disputes
certified by the Secretary to the Commission for compulsory
arbitration, the same may be resolved by the Secretary or the
Commission, respectively. (International Pharmaceuticals, Inc.
vs. Secretary of Labor and Associated Labor Union, G.R. No. 92981-83,
January 9, 1992.)
MAY A VOLUNTARY ARBITRATOR DETERMINE THE LEGALITY OF A
STRIKE?
If the issue is voluntary and jointly submitted by the parties to
voluntary arbitration, the question may be resolved by the voluntary
arbitrator or panel of voluntary arbitrators.
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CAN ANY PERSON PERFORMING ANY OF THE PROHIBITED ACTIVITIES
MENTIONED IN THE PROCEEDING PARAGRAPH BE CHARGED BEFORE
THE COURT?
Yes. They may be charged before the appropriate civil and criminal
courts.
WHAT IS THE PENALTY IMPOSABLE?
Any person violating any of the provisions of Article 265 of the Labor
Code (performing any of the above prohibited activities) shall be
punished by a fine of not exceeding P500.00 and/or imprisonment for
not less than one (1) day nor more than six (6) months.
If the person so convicted is a foreigner, he shall be subjected to
immediate and summary deportation and will be permanently barred
from re-entering the country without the special permission of the
President.
If the act is at the same time a violation of the Revised Penal Code
(RPC), a prosecution under the Labor Code will preclude prosecution
for the same act under the RPC or vice-versa.
IS AN EMPLOYEE WHO PARTICIPATES IN A LAWFUL STRIKE DEEMED
TO HAVE ABANDONED HIS EMPLOYMENT?
No. An employee who goes on strike is not deemed to have
abandoned his employment but is merely exercising his right to self-
organization precisely to protect his rights as an employee and/or to
obtain better working conditions.
IS PARTICIPATION BY AN EMPLOYEE IN A STRIKE SUFFICIENT GROUND
FOR AN EMPLOYER TO TERMINATE HIS EMPLOYMENT?
No. The mere participation of a worker in lawful strike shall not
constitute sufficient ground for the termination of his employment
even if a replacement has been hired by the employer during such
lawful strike. However, 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.
ARE THE STRIKERS ENTITLED TO PAYMENT OF WAGES DURING THE
PERIOD OF A LAWFUL STRIKE?
As a general rule, striking employees are not entitled to the payment of
wages for unworked days during the period of the strike pursuant to
the principle of “No work- No pay”. However, this does not preclude
the parties from entering into an agreement to the contrary.
On the other hand, when strikers abandon the strike and apply for
reinstatement despite the existence of valid grounds but the employer
either refuses to reinstate them or imposes upon their reinstatement
new conditions that constitute unfair labor practices, the strikers, who
refuse to accept the new conditions and are consequently refused
reinstatement, are entitled to the losses of pay they may have suffered
by reason of the employer’s discriminatory acts from the time they
were refused reinstatement.
MAY A STRIKE/LOCKOUT BE ENJOINED/PREVENTED BY LEGAL
PROCESS?
As a general rule, strikes and lockouts validly declared enjoy the
protection of law and cannot be enjoined unless illegal acts are
committed in the course of such strikes or lockouts. Ordinarily, the law
vests in the NLRC the authority to issue injunctions to restrain the
commission of illegal acts during strikes and pickets.
In the national interest cases, the certification or assumption of
jurisdiction by the Secretary of Labor over the dispute under Article
263(g) of the Labor Code, as a amended, has the effect of automatically
enjoining the intended strike or lockout whether or not a
corresponding return to work order has been issued. The workers shall
immediately return to work and the employer shall immediately
29
resume operations and re-admit all workers under the same terms and
conditions of employment prevailing before the strike.
WHAT IS THE EXTENT OF THE POWER OF THE PRESIDENT OR THE
SECRETARY OF LABOR AND EMPLOYMENT TO ISSUE ASSUMPTION
AND CERTIFICATION ORDERS?
The power to issue assumption and certification orders is an
extraordinary authority strictly limited to national interest cases and
granted to the President or to the Secretary of Labor, “which can
justifiably rest on his own consideration of the exigency of the situation
in relation to the national interest”.
Pursuant to the provisions of Article 263(g) of the Labor Code, as
amended, the Secretary of Labor is vested with the discretionary power
to decide not only the question of whether to assume jurisdiction over
a given labor dispute or certify the same to the NLRC, but also the
determination of the industry indispensable to national interest.
The President of the Philippines shall not be precluded from
intervening at any time and assuming jurisdiction over any labor
dispute involving industries indispensable to national interest in order
to settle or terminate the same.
Under Article 277(b) of the Labor Code, as amended, the Secretary of
the Department of Labor and Employment may suspend the effects of
the termination pending resolution of the dispute in the event of a
prima facie finding by the appropriate official of the Department of
Labor and Employment before whom such dispute is pending that the
termination may cause a serious labor dispute or is in the
implementation of a mass lay-off.
5. Assumption of jurisdiction by the DOLE Secretary or Certification of
the labor dispute to the NLRC for compulsory arbitration
The assumption of jurisdiction powers granted to the Labor Secretary
under Article 263(g) is not limited to the grounds cited in the notice of
strike or lockout that may have preceded the strike or lockout; nor is it
limited to the incidents of the strike or lockout that in the meanwhile
may have taken place. As the term “assume jurisdiction” connotes, the
intent of the law is to give the Labor Secretary full authority to resolve
all matters within the dispute that gave rise to or which arose out of
the strike or lockout, including cases over which the labor arbiter has
exclusive jurisdiction. (Bagong Pagkakaisa ng Manggagawa ng Triumph
International, et al. vs. Secretary of Department of Labor and
Employment, et al./Triumph International (phils.), Inc. vs. Bagong
Pagkakaisa ng Manggagawa ng Triumph International, et al., G.R. No.
167401, July 5, 2010).
Articles 263 (g) and 264 of the Labor Code have been enacted pursuant
to the police power of the State. The grant of plenary powers to the
Secretary of Labor makes it incumbent upon him to bring about
soonest, a fair and just solution to the differences between
theramiemployer and the employees, so that the damage such labor
dispute might cause upon the national interest may be minimized as
much as possible, if not totally averted, by avoiding stoppage of work
or any lag in the activities of the industry or the possibility of those
contingencies that might cause detriment to the national interest. In
order to effectively achieve such end, the assumption or certification
order shall have the effect of automatically enjoining the intended or
impending strike or lockout. Moreover, if one has already taken place,
all striking workers shall immediately return to work, and the employer
shall immediately resume operations and readmit all workers under the
same terms and conditions prevailing before the strike or lockout.
Assumption and certification orders are executory in character and are
to be strictly complied with by the parties, even during the pendency of
any petition questioning their validity. (YSS Employees Union-Philippine
Transport and General Organization vs. YSS Laboratories, Inc., G.R. No.
155125, December 4, 2009).
Automatically enjoins the intended or impending strike/lockout but if
one has already taken place, all striking or locked out Ees shall
30
immediately return to work and the Er shall immediately resume
operations and re‐admit all workers under the same terms and
conditions prevailing before the strike or lockout. (Trans‐ Asia Shipping
Lines, Inc.‐Unlicensed Crews Ee’s Union v. CA. G.R. No. 145428,
July 7, 2004).
Payroll reinstatement in lieu of actual reinstatement but there must
be showing of special circumstances rendering actual reinstatement
impracticable, or otherwise not conducive to attaining the purpose of
the law in providing for assumption of jurisdiction by the SLE in a labor
dispute that affects the national interest. (Manila Diamond Hotel Ees
Union v. SLE G.R. No. 140518, Dec. 16, 2004).
Mere issuance of an assumption order automatically carries with it a
return‐to‐work order although not expressly stated therein. (TSEU‐FFW
v. CA. G.R. Nos. 143013‐14, Dec.18, 2000).
a. Issues that the SLE may resolve when he assumes jurisdiction over a
labor dispute
SLE may subsume pending labor cases before LAs which are involved in
the dispute and decide even issues falling under the exclusive and
original jurisdiction of LAs such as the declaration of legality or illegality
of strike. (Int’l. Pharmaceuticals v. SLE G.R. Nos. 92981‐83, Jan. 9,
1992).
Power of SLE is plenary and discretionary. (St. Luke’s Medical Center v.
Torres G.R. No. 99395, June29, 1993).
Where the return to work order is issued pending the determination
of the legality of the strike, it is not correct to say that it may be
enforced only if the strike is legal and may be disregarded if illegal.
Precisely, the purpose of the return to work order is to maintain the
status quo while the determination is being made. (Nature of
assumption order or certification order. (Sarmiento v. Tuico. G.R. Nos.
75271‐73, June 27, 1988).
The assumption of jurisdiction is in the nature of a police power
measure. This is done for the promotion of the common good
considering that a prolonged strike or lockout can be inimical to the
national economy. The SLE acts to maintain industrial peace. Thus, his
certification for compulsory arbitration is not intended to impede the
worker’s right to strike but to obtain a speedy settlement of the
dispute. (Philtread Workers Union v. Confesor. G.R. No. 117169, Mar.
12, 1997).
Art. 263(g) does not interfere with the workers right to strike but
merely regulates it, when in the exercise of such right national interest
will be affected. The LC vests upon the SLE the discretion to determine
what industries are indispensable to national interest. The underlying
principle embodied in Art. 263 (g) on the settlement of labor disputes is
that assumption and certification orders are executor in character and
are strictly complied with by the parties even during the pendency of
any petition questioning their validity. This extraordinary authority
given to the Secretary of Labor is aimed at arriving at a peaceful and
speedy solution to labor disputes, without jeopardizing national
interests. Art. 263(g) is clear and unequivocal in stating that all
striking or lock‐out Ees shall immediately return to work and the Er
shall immediately resume operations and readmit all workers under the
same terms and conditions prevailing before the strike or lockout.
Records of the case would show that the strike occurred one day
before the members of the union were dismissed due to alleged
redundancy. Thus the abovementioned article directs that the Er must
readmit all workers under the same terms and conditions prevailing
before the strike. (PLDT v. Manggagawa ng Komunikasyon sa Pilipinas
G.R. No. 162783, July 14, 2005).
WHEN A DISPUTE IS ASSUMED BY THE PRESIDENT OR SECRETARY OF
LABOR, OR CERTIFIED TO THE NLRC FOR COMPULSORY
ARBITRATION, MAY A STRIKE OR LOCKOUT BE VALIDLY DECLARED ON
ACCOUNT OF THE SAME DISPUTE?
31
No. The assumption or certification shall have the effect of
automatically enjoining the intended or impending strike or lockout.
WHAT IS THE NATURE OF THE RETURN-TO-WORK
ORDER?
The return-to-work order is a valid statutory part and parcel of the
assumption and certification orders given the predictable prejudice the
strike could cause not only to the parties but more especially to the
national interest. Stated otherwise, the assumption of jurisdiction and
the certification to the NLRC has the effect of automatically enjoining
the strike or lockout, whether actual or intended, even if the same has
not been categorically stated or does not appear in the assumption or
certification order. It is not a matter of option or voluntariness but
of obligation. It must be discharged as a duty even against the
worker’s will. The worker must return to his job together with his co-
workers so that the operation of the company can be resumed and it
can continue serving the public and promoting its interest. x x x. It is
executory in character and shall be strictly complied with by the parties
even during the pendency of any petition questioning their validity x x x
precisely to maintain the status quo while the determination is being
made. (Union of Filipro Employees vs. Nestle Philippines, Inc., GR No.
88710-13, December 19, 1990).
WHAT ARE THE LEGAL CONSEQUENCES IN CASE OF DEFIANCE OF THE
RETURN-TO-WORK ORDER BY THE EMPLOYER AND BY THE
EMPLOYEES?
In case of non-compliance with the return-to-work order in connection
with the certification or assumption of jurisdiction by the Secretary of
Labor, the employees concerned may be subjected to immediate
disciplinary action, including dismissal or loss of employment status or
payment by the locking-out employer of backwages, damages and
other affirmative relief even criminal prosecution against either or both
of them.
The Secretary of Labor may cite the defiant party in contempt pursuant
to the power vested in him under the provisions of the Labor Code.
7. Effect of defiance of assumption or certification orders
Under Article 264 (a) of the Labor Code, as amended, a strike that is
undertaken despite the issuance by the Secretary of Labor of an
assumption order and/or certification is illegal. So is a declaration of a
strike during the pendency of cases involving the same grounds for the
strike. In the present case, there is no dispute that when respondents
conducted their mass actions on April 3 to 6, 2000, the proceedings
before the Secretary of Labor were still pending as both parties filed
motions for reconsideration of the March 24, 2000 Order. Clearly,
respondents knowingly violated the aforesaid provision by holding a
strike in the guise of mass demonstration. (Solid Bank Corp. Ernesto U.
Gamier, et al. and Solid Bank Corp., et al. vs. Solid Bank Union and its
Dismissed Officers and Members, et al. G.R. No. 159460 and G.R. No.
159461, November 15, 2010).
It shall be considered an illegal act committed in the course of the
strike or lockout and shall authorize the SLE or the NLRC, as the case
may be, to enforce the same under pain or loss of employment status
or entitlement to full employment benefits from the locking‐out Er or
backwages, damages and/or other positive and/or affirmative reliefs,
even to criminal prosecution against the liable parties. (St.
Scholastica’s College v. Torres. G.R. No. 100158, June 2, 1992).
CAN THE PHILIPPINE NATIONAL POLICE (PNP) BE DEPUTIZED TO
ENFORCE ORDERS FROM THE DEPARTMENT OF LABOR AND
EMPLOYMENT?
Yes. The Secretary of Labor and Employment, the National Labor
Relations Commission (NLRC) or any Labor Arbiter may deputize the
PNP to enforce any of its order, award or decision.
IN CASE THE PNP IS DEPUTIZED TO ENFORCE ORDERS FROM THE
DEPARTMENT OF LABOR, WHAT WILL BE ITS ROLE?
32
In such a case, the role of the PNP is merely to assist the sheriff or the
appropriate DOLE Officers in enforcing the decision, award or order. It
shall maintain peace and order and public safety in the area where the
decision, award or order is to be enforced. It shall also give security to
the officers enforcing the decision, award or order. (Please see also
Article 264 (d), Article 266 of the Labor Code, as amended, and
Guidelines for the Conduct of PNP During Strikes, Lockouts and Labor
Disputes in General, Oct. 22, 1987).
WHAT IS A STRIKE AREA?
A strike area includes: (a) the establishment of the employer struck
against including run-away shops, factories or warehouses and other
premises where members of the bargaining unit carry out the
operations and business of the employer, and (b) the area immediately
before points of entrance and exit of establishment struck against.
IS THE INGRESS AND EGRESS OF THE ESTABLISHMENT PART OF THE
STRIKE AREA?
No. Since it is not part of the strike area, the same could not be blocked
or picketed.
WHO IS A STRIKE-BREAKER?
A strike-breaker means any person who obstructs, impedes or
interferes with by force, violence, coercion, threats or intimidation any
peaceful picket by employees during any labor controversy.
8. Illegal strike
The Supreme Court also cited the 6 categories of illegal strikes which
are: 1. When it is contrary to a specific prohibition of law, such as strike
by employees performing governmental functions; or 2. When it
violates a specific requirement of law, [such as Article 263 of the Labor
Code on the requisites of a valid strike]; or 3. When it is declared for an
unlawful purpose, such as inducing the employer to commit an unfair
labor practice against non-union employees; or 4. When it employs
unlawful means in the pursuit of its objective, such as a widespread
terrorism of non-strikers [for example, prohibited acts under Art.
264(e) of the Labor Code]; or 5. When it is declared in violation of an
existing injunction, [such as injunction, prohibition, or order issued by
the DOLE Secretary and the NLRC under Art. 263 of the Labor Code]; or
6. When it is contrary to an existing agreement, such as a no-strike
clause or conclusive arbitration clause. (Toyota v Toyota Workers
Association. G.R. Nos. 158786 & 158789 October 19, 2007).
No backwages will be awarded to union members as a penalty
for their participation in the illegal strike. As for the union officers, for
knowingly participating in an illegal strike, the law mandates that a
union officer may be terminated from employment and they are not
entitled to any relief. (Gold City Integrated Port Services, Inc. v. NLRC.
G.R. No. 86000, Sep. 21, 1990).
Those union members who have joined an illegal strike but have not
committed any illegal act shall be reinstated but without back
wages.The responsibility for the illegal acts committed during the strike
must be on an individual and not on a collective basis. (First City
Interlink Transportation Co., Inc. v. Confesor G.R. No. 106316, May 5,
1997).
9. Injunctions
a) Requisites for labor injunctions
No court or entity shall enjoin any picketing, strike or lockout except as
provided in Article 218 and 263 of the Labor Code, as amended. The
National Labor Relations Commission proper shall have the power to
issue temporary injunctions but only after due notice and hearing and
in accordance with its rules. It may also issue restraining orders to
appropriate cases subject as a general rule to the requirements of due
notice and hearing.
Petitions for injunctions or restraining orders shall be handled or
resolved with extreme care and caution. All efforts to conciliate or
settle amicably the issues in the main dispute and those involved in
petitions for injunctions shall be exhausted. Injunctions and restraining
33
orders therefore may be issued only in case of extreme necessity based
on legal grounds clearly established, after due consultations or hearing
and when all efforts at conciliation are exhausted.
Injunction orders shall be enforced only to the extent necessary to
correct violations of law and shall not prevent the workers from
exercising the right to peaceful picketing. The right to ingress or egress
may be exercised only for lawful purposes as may be indicated in the
injunctive orders in line with established jurisprudence.
Injunction orders issued under Article 218 and 263 of the Labor Code,
as amended, shall be served and enforced by appropriate officials or
employees of the National Labor Relations Commission or by such
officials or employees of the Department of Labor and Employment
who may be designed by the labor secretary.
The assistance of other civilian authorities like national, local or city
officials may be sought, if necessary. Only under extreme
circumstances shall the assistance of the PC/INP be enlisted and in such
cases, the police authorities shall also serve on a supportive capacity to
the labor department officials or employees. All efforts must be
exerted in all cases to bring about voluntary and peaceful compliance
with injunctive orders. PC/INP representatives shall be guided by duly
promulgated guidelines.
the LC can only be interpreted as vesting in them jurisdiction over
incidents arising from, in connection with or relating to labor
disputes, as the controversy under consideration, to the exclusion
of the regular courts. The RTC, being a co‐equal body of the NLRC,
has no jurisdiction to issue any restraining order or injunction to enjoin
the execution of any decision of the latter. (Deltaventures v. Cabato.
G.R. No. 118216, Mar. 9, 2000).
The concerted action taken by the members of the union in picketing
the premises of the department store, no matter how illegal, cannot be
regarded as acts not arising from a labor dispute over which the RTCs
may exercise jurisdiction. (Samahang Manggagawa ng Liberty
Commercial v. Pimentel G.R. No. L‐78621, Dec. 2, 1987).
VII. PROCEDURE AND JURISDICTION
Principle of Emancipation of Labor Relations (Doctrine of Speedy
Labor Justice)
This principle simply provides that rules of procedure and evidence in
courts of law or equity shall NOT control labor proceedings. The same
may be relaxed in labor cases to serve the demands of substantial
justice (Havtor v. NLRC, 372 SCRA 271)

b) “Innocent bystander rule”

The innocent by stander must show: 1. Compliance with the grounds
specified in Rule 58 of the Rules of Court, and 2. That it is entirely
different from, without any connection whatsoever to, either party
to the dispute and, therefore, its interests are totally foreign to the
context thereof. (MSF Tire & Rubber v. CA, G.R. 128632, Aug. 5, 1999).

A party, by filing its 3rd party claim with the deputy sheriff, it submitted
itself to the jurisdiction of the NLRC acting through the LA. The broad
powers granted to the LA and to the NLRC by Art. 217, 218 and 224 of
34