11 March 2010 Art.

248 – Union Security

Art. 248
LABOR ORGANISATION
Art. 249 – Rights of Union Membership
Structure of Law Art. 249
Art. 212 (g) Art. 275
Definition:
Composition Limited Use of Labor Injunction
Purpose of Organisation Art. 254

Art. 212 (h) Definition

Requires Registration but where? Airline Pilots Association v CIR – the
union/association exists, in whole or in part,
Art. 212 (i) for purposes of collective bargaining. The
Art. 248 (d) members do not have to be employees of a
Company Union – employers influence in particular employer.
the union (organisation, administration and
financial support) Mixed Member Union
• No mixed membership
Art. 211. A. (b) • When an employee not part of the
Art. 211 B. appropriate bargaining unit (ABU),
Policy Declaration the union could drop them from the
1. Voluntary Arbitration union
Dispute Settlement
Functions in Society Registration
2. Limited Use of Labor Injunction • Only with the DOLE
3. Tripartism
• Other agencies do not confer
Procedure for Union Registration legitimate status
Art. 234
Art. 234-A. A labor union that is a chartered
Art. 234-A
affiliate can attain legitimate status on a very
Art. 237
limited way (only for purposes of Certification
*be able to distinguish when to use in what Elections) but if a union wants to attain all
situations. the rights of membership under Art. 242, the
union has to file all the necessary documents
Application for Registration and the Action to attain legitimate status.
Art. 235
Limited legitimate status because it is
Appeal chartered by a legitimate national union.
Art. 236
Art. 237. Registration requirements of a
Cancellation of certificate of registration by National Union or a Confederation of Unions
provision of law of National Status as distinguished from Art.
Art. 239 234, which refers to labour unions that are
Art. 239 has been amended. Read Art. 239 as not federations by nature.
amended, the amendment concerns 2 areas:
1) Misrepresentation, fraud in A National Trade Union cannot issue a
constitutions and by-laws charter certificate.
2) Misrepresentation, fraud in relation to
election matters Union Registration
Distinguish very clearly if you can avail of the
Art. 270 – Foreign activities of Labor Unions provisions of Art. 234 – independent unions
(independent locals) that are not trade union
Art. 270
federations; and 237.
Art. 234-A. Registration requirements of a Extraordinary Fees and the manner of
chartered affiliate of a legitimate national collecting it.
union. o ABS-CBN etc. v ABS-CBN
(1999) – Three requisites of special
Fundamental distinction: In the case of Art. assessment for incidental expenses,
237, there is a need of a support that there attorney’s fees and representation
are 10 locals, each legitimate, and is a expenses to be valid:
bargaining representative in the company (1) Authorisation by a written
they are located. resolution of the majority of all the
members at the general meeting
Art. 234 – requires 20% support from duly called for the purpose;
membership of ABU (2) Secretary’s record of the minutes
of the meeting;
Art. 234-A – abbreviated procedure to (3) Individual written authorisation for
encourage unions to affiliate. check-off duly signed by the
employee concerned.
• Every application must be duly o Palacol, et al. v Calleja (1990) –
attested and certified Express consent of the union
o Protective measures to protect members is required, and this consent
the worker member, employer must be obtained in accordance with
and the parties the steps outlined by law, which must
be followed by the letter.
Guidelines in Union Registration o Gabriel v Sec. of Labor (2000)
1. Union registration requirement is NOT • How and what are the mechanics for
violative of freedom of association special assessments and extraordinary
guaranteed by the constitution fees? Strict implementation of Art. 241
2. A union can exist with or without
registration as an organization
• Concentrate on how the resolution
must be passed:
3. The requirements of registration are o General meeting for that
for the purpose of putting conditions
purpose
before the organisations/associations
o Quorum
can avail of the rights in Art. 242
(statutory creations, not constitutional • Collecting for the purpose of collective
guarantees) bargaining, attorney’s fees and the
settlement of labor disputes
Bureau of Labor Relations (BLR) is not purely • Legitimate deductions allowed by law
mechanical, requires authority to examine on wages
the documents not merely clerical in nature.
However, if the non-registration of the union Union Security Provisions
happens, the fact of non-registration does not 1. Close Shop
make the union illegitimate. But such union 2. Union Shop
cannot avail of such rights provided in Art. 3. Maintenance of membership clause
242.
• Basis of adaptation: Art. 248 (e)
Art. 242-A. Amendment that refers to the Art. 248 (e)
reportorial requirements expected of every • Distinction:
legitimate labor organisation. Close Union Maintena
nce
Cancellation of Registration Time of Member Does not May or
• Long list has been amended entry in at the have to may not
the time of be a be a
Union Member Relations workforc hiring member member of
Art. 241 – On Union governance. Expected to e at the the union
be known by every law student. time of
• Refers to election matters hiring,
• Art. 241 on Special Assessments and but the
 worker
must join
as a
condition
. union, therefore local union
Condition
for
Membership must be maintained
continuin
(for members) to remain an
g the procedure can be validly
employee.
employm
ent
What
happens
if the
worker
Termination of employment
loses
union
members
hip?
• Always strictly construed because as a
principle of law, the union security
does not violate one’s freedom of
association. Regardless of the union
security involved, law requires due
process from employer before
termination of employment rule can
be applied.
• Wrongful application makes the union
and the employer jointly liable.
• Even if the union tells the employer
that they will assume full and solidary
liability for any wrongful termination,
employer is not relieved of the duty to
accord due process.
• Even if employer is threatened by
union of strike action, termination of
employment must comply with
substantive and procedural due
process.
o Must be based on valid
grounds
o Twin-notice and hearing
Affiliation/Disaffiliation
• Part and parcel of the constitutionally
and statutorily guaranteed right of
self-organisation
• If affiliation takes place,
o The affiliate is not a creation of
a national union
o The legal personality of the
affiliate and the national union
are separate and distinct
o Each one is a consensual body
that can enter a contract on its
own but if the national union
participate in the negotiation
process, it did so only as an
agent, the principal is the local
owns the CBA
o If the union wants to
disaffiliate, the question is, if
enforced. The union must
comply with the provisions in
the contract.
• Freedom of association includes
association and disassociation
• Art. 269 and 270. Foreign activities of
labor association.
o 270 – What acts may be done
without the approval of DOLE?
o What acts need approval of
DOLE
You cannot avoid reading Art 241 because
this is the law on union governance. Know
the concentration of the law on elections,
money, special assessment and
extraordinary fees. Memorise the procedural
requirements. Cardinal rule of Art. 241 is that
no shortcuts are allowed by law (strict
compliance).
Distinguish Arts 241 (n), (o), 222 (collecting
attorney’s fees, individual collection), and
113 (with respect to check-off).
Art. 241 (n)
Art. 241 (o)
Art. 222
Art. 113
Major policy decision
Art. 241 (d)
1. Normal condition
2. Abnormal condition
Authority to adapt measures require worker
participation, however, know the exceptions.
APPROPRIATE BARGAINING UNIT
Art. 255
Art. 256
Art. 212 does not define appropriate
bargaining unit (ABU), but the two articles
above make statutory reference to ABU. It is
also defined in the Implementing Rules.
Rule I, Sec. 1 (d) “Bargaining Unit” refers to
a group of employees sharing mutual
interests within a given employer unit,
comprised of all or less than all of the entire
body of employees in the employer unit or
any specific occupational or geographical
groupings within such employer unit.
Guidelines on What to Know
1. What is the role and function of an
ABU in the scheme of labor relations?
2. Definition of what is an ABU
3. What is the standard test, factor test
4. What happens if the entity is owned
commonly and managed commonly
by one organisation
5. Determining agency and its finality
6. Is there such a thing as a permanent
appropriate bargaining unit?
UP v Calleja – best description of ABU (read
Rothenberg also in 1954)
1. Labor code only uses one word in
determining bargaining unit:
appropriate.
2. Analysing jurisprudence – study of
different factors:
a. Geography [In UP v Calleja, all
non-academic rank-and-file
employees of the different UP
campuses were allowed to
participate in a certification
election]
b. Administration
c. History
d. Size/Composition
3. Rules:
a. Factor Test: Factor-
considerations are several in
the determination of ABU but
no one factor is decisive.
b. Since time immemorial, the
standard test is the
commonality or mutuality
standard test.
i. How do you group
employees with
common interest in
wages, hours of works
and other terms and
conditions of
employment?
ii. If they are grouped this
way, the rights
guaranteed by law will
be enhanced and
reciprocal rights and
obligations can better
be enhanced.
c. Standard test: APPROPRIATE.
If, appropriate, how do you
group? Remember that there is
no such thing as best
bargaining unit, all the law and
jurisprudence requires is
appropriate.
Rothenberg definition:
1. Employees of an employer – in whole
or a part of the employer’s workforce
2. Equity to the employer – refers to the
ease in the administration and
enforcement of the CBA that will come
into force
3. Test to determine the
appropriateness: group employees
with a common interest in wages,
hours of work and other terms and
conditions of employment and also
the rationale for the grouping. If
groups have common interest, there
is an assurance that the rights
provided by law will be enforced and
more successful.
* Last two are most important elements
Ideally, size and scope are decided by the
parties, but when they cannot agree, DOLE
decides. This, however, does not bind future
parties.
Functions of Appropriate Bargaining Units
1. Electoral district – marks the boundary
where certification elections will be
conducted
2. Sovereign unit – as the exclusive
bargaining representative for a given
period of time
3. Economic unit – determines who will
be the beneficiaries of a collective
bargaining agreement
Globe Doctrine is not enforced through a
certification election, but rather through a
plebiscite that will determine the will of the
employees if they want to form a new
bargaining unit. They are seceding from an
existing one, which means there is an
existing ABU but a small group wants to
move and the reason is usually economic
(how do we improve the market value of our
labor?). Only applies if all things are equal.
Three instances it was applied. The first two
cases involved railroad companies
[Kapisanan ng mga Manggagawa sa Manila
Railroad Co. v Yard Crew (1960); Mechanical
Department Labor Union v CIR (1968)]. The
third one was an aborted application because
it did not push through.
Globe doctrine = consideration of the will of
the workers.
Therefore, conduct a plebiscite: do you want
or do you not want out? If plebiscite
determines that they want out, that’s when
the certification election will be conducted.
Plebiscite, not a certification election, will
come in after the answer was given if they
want out.
Not applied in the Philippines much because
most of our unions are industrial unions that
do not require high-level skills.
***
There are instances when several business
entities are commonly owned and commonly
managed. How do you determine the ABU in
such cases?
First group of cases - The mere fact that
two businesses have a common interest is
not enough to pierce the veil of corporate
fiction, therefore are separate bargaining
units.
• Indophil Textile Mills Worker Union v
Calica (1992) – Indophil Textile and
Indophil Acrylic were considered separate
entities, therefore, the Union in one
cannot negotiate a CBA for the
employees of the latter.
• Diataogon Labor Federation v Ople (1980)
– Two corporations cannot be treated as a
single bargaining unit even if their
businesses are related.
Second group - exceptions
Security Agency cases – unitary aspect of
management and high degree of
commonality justified the piercing of the veil
of corporate fiction. Common ownership,
management, anniversary dates, payrolls,
interchangeability of the guards, common
strategic methods. All put together justified
the creation of one ABU.
EO 180. Bias to larger ABUs. But principal
test is commonality and mutuality of interest.
ESTABLISHING MAJORITY UNION STATUS
Core Provisions:
Art. 256
Art. 257
Art. 258
Art. 258-A
Distinction of Art. 256, 257 and 258.
Union as an initiating party – union can
invoke only Art. 256 (organised
establishments), 257 (unorganised
establishment)
What is an organised establishment?
Unorganised establishment?
Employer as initiating party - Art. 258
refers to a situation where employer is
invoking the certification election.
1. Union as initiating party
• Can only be invoked by an legitimate
labor organization (LLO) because you
cannot invoke bargaining agent status
unless you invoke Art. 242 of the
Labor Code.
• Organised establishment –
o Existing valid CBA in full force
and effect;
o Union has been voluntarily
recognised or certified as an
exclusive bargaining
representative because it had
one year to negotiate a CBA.
• Unorganised establishment – no
exclusive bargaining representatives
ALTHOUGH the establishment may
have unions.
• Art. 256 – conditions that must be met
as requirement to invoke.
o Filed by a legitimate labor
organization
o Filed during freedom period
(Art. 243-A), last 60 days of an
existing CBA
o Form of a verified petition
(non-jurisdictional, can be
returned for correction)
o Substantial support
requirement: percentage of
the employees in the ABU that
 supports the petition. Are the
employees members of the
union, or members of ABU?
 Substantial support
applies only in a
petition for certification
election and not in a
motion for intervention.
(doctrine)
 Even if there is a
withdrawal of
substantial support, the
election will continue
because the best proof
of the withdrawal is the
result of the election.
 Discretionary rule: even
if there is no substantial
support, the BLR can
order the conduct of an
election if it will achieve
the policy objective of
the law.
• Art. 257 – Requirements of 256 are
absent. Intent of the law to bring in
the union because it is an unorganised
establishment.
• When is an election automatic? If all
the requirements are complied with in
Art. 256, then the election is
mandatory.
2. Role of the employer
• Art. 258
• Employer is a by-stander in the
certification election (CE) process
• Rule. Is the SOLE exceeding its
• VOLUNTARY RECOGNITION (VR) –
Art. 256, 257.
o Colgate Palmolive v Ople –
Secretary of Labor and
Employment (SOLE), without
conducting a CE, certified a
union as an exclusive
bargaining representative
(EBR), on the basis other than
proof of majority status; SC
said that the act of the SOLE in
certifying the union without an
election is a clear violation of
Art. 256/257, and is therefore
invalid.
o Samahan ng Manggagawa sa
Summary of Modes in Establishing Majority
Premex v Sec. of Labor –
Status:
employer that voluntarily
recognised the union as the
EBR and the court said the act
of the employer in voluntarily
recognizing the union is in
effect certifying the union as
EBR and is therefore violative
of Art. 256/257.
o These articles have a rich
judicial background: CE is the
most efficient, democratic,
efficacious way of determining
majority choice.
 Both cases invoked Art.
256/257 on CE
 Intent of law: secrecy of
the ballot and secrecy
through an election
process
o DOLE then promulgated
Voluntary Recognition in the
Implementing Rules:
 Union is legitimate
 Sole labor union in the
establishment
 Fact of VR is duly
reported to the DOLE
and made known in the
establishment
o One thing is missing in Art.
256/257: secrecy of choice.
o Invoke both the strict
interpretation of the Supreme
Court with respect to Arts.
256/257 and the VR clause.
o No one has challenged the
validity of the Implementing
mandate by contradicting the
law as embodied in the
Colgate and Premex cases? But
until challenged, this is valid,
meaning the employer can
voluntarily recognise.
• CONSENT ELECTION is not in the law
but the parties now are allowed under
the IR. Parties can now agree, and the
med-arbiter will record that the
parties will have a Consent Election,
which can be a bar to the holding of a
Certification Election. In a Consent
Election, the secrecy of the ballot is
also maintained.
 1. Certification Election
2. Consent Election
3. Voluntary Recognition
Whether invoking Art. 256/257/258, the
mechanics of the election is found in Art.
256.
GUIDE
1. The only guide for you to understand
the mechanics of the election as
provided by Art. 256, know the
distinction between
a. Certification election and
b. Run-off election.
2. Know
a. Votes cast – votes were cast in
the urn
b. Valid votes cast – you open the
ballots and make sure they are
all validly cast
c. Majority – 50%+1 of the valid
votes cast
Certification Election
• Was the election validly held? 50% of
the eligible voters must cast their
vote.
• If it was held validly, what choice
won?
o 2 choices? Minimum for CE
o 3+ choices?  run-off election
only applies here.
• Who won by majority of valid vote
cast?
o Union
o No-union choice – no union is
certified, one year election bar
rule applies
 If it was a consent
election, 6 months and
you can file another
petition for certification
elections (IR)
• When do you apply run-off election
rule?
o Valid Certification Election
o At least 3 choices, but not one
of the choices obtained
majority of the valid votes cast
(2 unions and a no-union
choice).
o However, the combined votes
of all the participating unions
must be equal to 50% of the
valid votes cast.
o In order to ensure an exclusive
bargaining representative, only
the 2 highest-ranking unions
will be voted upon, the no-
union choice will be
automatically out
• Mechanics
o Who can vote? Employees in
the ABU, and it includes any
person who has a current labor
dispute and has not obtained a
substantially equivalent
employment
o Election day? Regular business
day.
 If there are conditions
(typhoon, flood),
elections could continue
as long as it is the
regular business day. In
Asian Design and
Manufacturing Corp v
Calleja – a strike during
the election day does
not make it an irregular
business day, therefore
the results were valid.
• How do you annul?
o Same rules as a political
election
• Participation of 3rd parties/meddlers?
o Will not invalidate the results
of the certification election
Warren Manufacturing Workers Union v BLR
(1988) – A certification election is, by
mandate of the law, correct. A consent
election is still correct. It determines who is
the choice. That the consent election has
nothing to do with CBA is not correct,
because consent election can result as the
majority decision.
The Bars
1. One-year bar rule. Reckoned from
the date of the results of CE is finally
certified.
2. Contract-bar rule. Art. 231 of the
LC, if there is a CBA duly registered,
then it is a bar to a CE provided the
CBA is complete. An incomplete CBA
cannot be completed in order to
invoke a bar. A premature contract
 cannot likewise be invoked -
Negotiated prior to the expiry date,
but the law abhors a vacuum.
Substitution, if the winning party is
different from the signing party, is
allowable. The winning party will now
step into the shoes of the old party.
And it can renegotiate if it wishes.

3. Deadlock bar rule. Despite the best

efforts of the parties, they failed to
agree. The deadlock is submitted to
voluntary arbitration or compulsory
arbitration or valid notice of intention
to strike.

4. Suspension rule. Case for ULP

referring to company domination,
then that is a prejudicial question.
Unless this question is resolved, there
will be no CE. But the law requires the
petitioning party to suspend the CE
must be the same party who filed the
complaint for ULP.