Title IV Labor Organization

Registration and Cancellation

Concept of the right to self-organization

- the right to form, join, assist labor organizations, and
- the right to engage in lawful concerted activities
- The labor organization may be a union or association of employees.
- Its purpose may be collective bargaining or dealing with the employer.
- The right to form labor organization is twin to the right to engage in concerted
activity. Although twins, they are not inseparable.
- Such group action, which should be held peacefully to remain lawful, can similarly
be for collective bargaining purpose, but it can simply be for aid and protection of
the members.
- The labor organization entitled to protection does not have to be a registered
organization. And it does not have to be the bargaining union.
- The right to self-organization is granted not only to employees but to workers,
whethere employed or not. In fact, constitutionally speaking, the right to form
associations or societies is a right of the people, whether workers or not.
Non-Abridgment of Right to Self-Organization
- Labor organization entitled to protection does not have to be a registered
organization and it does not have to be the bargaining union.
- BUT, if UNREGISTRED it cannot claim the rights under ART. 250 [242] Rights of
legitimate labor organization because it does not possess legal representative
status.
- UNREGISTERED organization cannot sue in behalf of its supposed members.
Workers right to self-organization - Article XIII of the 1987 Constitution
Right to form, join or assist labor organization.
Non-registration of a LO mean it is unregistered and has no legal personality. It does
not possess the rights of an LLO such as it cannot petition for Certification Election,

Request preventive mediation, or hold a legal strike.

2 Broad Purposes of Labor Organizations
Collective bargaining
Dealing with employees concerning terms and conditions of employment.
o A pattern or practice in which a group of employees, make
proposals to management, and management responds to those

proposals by acceptance or rejection by word or deed.

Classifications of LO
a. National Union/Federation
b. Industry Union means any group of LLO operating within an identified
industry, organized for collective bargaining or dealing with employers
concerning terms and conditions of employment within an industry or for
participating in the formulation of social and employment policies, standards
and programs in such industry, duly registered with the Department.
c. Trade Union Center group of national union/federation organized for the
mutual aid and protection of its member, for assisting them in collective

bargaining, or for participating in the formulation of social and employment

policies, standards and programs.
d. Alliance aggregation of unions existing in one line of industry or in a
conglomerate, a group of franchisees, a geographical are or an industrial
center. Unions or federations may form an alliance to help one another for a
particular purpose. Each member union retain its own organization, structure
and independence. An alliance cannot represent its member unions in CBA
negotiations.
e. Company-union LO which, in whole or in part, is employer-controlled or
f.

employer-dominated. It is prohibited by the Labor Code (art. 258d).

Independent created by independent registration. See IRR for definition. Its
legal personality is not derived from a federation. It may affiliate with a

federation, then, it may also be called an affiliate.

g. Chapter/Local/Chartered Local refers to a labor organization in the private
sector operating at the enterprise level that acquired legal personality through
registration with the Regional Office
o Its legal personality is derived from a federation but it may
o

subsequently register itself independently.

No required number 20 percent requirement applies only to
independent registration and not to chartering. This makes it easier
to create a chapter than an independent union, thus expediting the

growth of federations or national unions.

Tentative Legal Personality Once issued a charter, Chartered Local
has personality to file a petition for certification election (CE). All
other rights of the chartered local are acquired by submitting the
necessary documents:
a. charter certificate
b. names and addresses of officers and members of union
(certified under oath by Secretary or Treasurer and
attested by the president)
c. constitution and by-laws(CBL) of the union which can be
the same as that of the federation(certified under oath

by Secretary or Treasurer and attested by the president)

The Grounds for Cancellation of Union Registration
Any falsehood about the CBL
Any falsehood about the election of officers
Voluntary Dissolution
o Cancellation by 2/3 vote of the membership to dissolve their
organization requires subsequent submission by the board of the
organization, attested by the president, of an application to
cancel.

o
o
o

The members desire to dissolve or cancel the registration of their

union should have been voted upon through secret balloting [ Art
241(d)]
The balloting should take place in a meeting duly called for the
purpose of deciding whether or not to dissolve the union
The vote to dissolve should represent two-thirds affirmative vote of
the general membership. Not just of the quorum
The members resolution should be followed by an application for
cancellation passed and submitted by the union governing board,
which application may be attested to by the president

o
Reportorial Requirements:
Adoption or amendments to CBL
Election of officers, with list of voters to be submitted in 30 days
Annual financial reports within 30 days from close of fiscal year
Annual list of members
Non-disclosure of identity If petition for CE in an organized enterprise is filed by the
federation in behalf of chapter, the federation cannot be required to identify the

chapters officers or members.

Employer, a bystander employer has no right to oppose a petition for CE.
Participation is limited to being informed and to be required to submit a list of

employees if CE will be held.

Registration
Registration required is not a limitation to the right of assembly or
association. It is merely a sine qua non condition for the acquisition of
legal personality and the possession of the rights and privileges granted
by law to LLOs. Such requirement is a valid exercise of police power,
because the activities LOs are engaged in affect public interest which

should be protected.
Applications for registrations shall be filed with:
For independent labor unions, chartered locals and workers association
-

Regional Office where applicant principally resides

For federations, national unions or workers association operating in more
than one region Bureau or the Regional Offices, but processed and acted

upon by the Bureau

Registration of a Chartered Local.
Submit 2 copies of the following:
i. A charter certificate issued by the federation/national union indicating
the creation or establishment of the local/chapter
ii. The names of the local/chapters officers, their addresses and the
principal office of the local chapter; and
iii. The local/chapters constitution and by-laws, provided that where the
local/chapters constitution and by-laws is the same as that of the
federation or national union, this fact shall be indicated accordingly.

iv. All the foregoing supporting requirements shall be certified under oath
by the Secretary or the Treasurer of the local/chapter and attested by
its President.
Law fixes no time for the submission of the required documents for a
chartered local, the IRR requires
the documents to be submitted within 30
days from receipt of notice from the Regional Office.

Trade Union Centers cannot create a local chapter as decided by the Supreme Court.
When does a Chapter Become an LLO?
Not from the date of filing of the complete documents but from the date
of its issuance of its certificate of registration or certificate of creation of
chartered local.
Is the registration of a chartered local a ministerial function?
No, with the shift from the date of submission to the date of issuance of
certificate of registration.
Withdrawal by members on or before registration
If withdrawal is done before the application for registration is filed, the
withdrawal is presumed voluntary and it may prejudice the registrability
of the applicant union.
On the other hand, if the withdrawal is done after the application is filed,
the withdrawal is considered involuntary and does not affect the
registration application.
Union's Legitimacy is not Subject to Collateral Attack
Sec. 8, Rule IV of D.O. 40-03 further states: Such legal personality may be
questioned only through an independent petition for cancellation of union
registration in accordance with Rule XIV of these Rules, and not by way of
collateral attack in [the] petition for certification election proceedings
under Rule VIII.
Bargaining Unit
refers to a group of employees sharing mutual interests withing a given
employer unit, compromised of all or less than all of the entire body of
employees the employer unit or any specific occupational or geographical
grouping withing such employer unit.
It may be all supervisors or all the rank-and-file in the company
The law does not allow supervisors and rank-and-file to belong to the same
bargaining unit.
Can there be several bargaining units of supervisors or of rank-and-file in just one
company?
Yes, because of several reasons. But the DOLE policy favors the creation of
only one CBU in one company, i.e., only one for rank-and-file and another
one for the supervisors.
The law fixes no minimum or maximum number. Whatever the number,
twenty percent thereof should be members of the independent union
applying for registration.
Another registration requirement is the submission of the constitution and by-laws
(CBL) of the applicant union.
Like other voluntary associations, labor unions have the right to adopt
constitutions, rules, and by-laws within the scope of the lawful purposes of
the union and bind their members thereby, provided they are reasonable,

uniform, and not discriminatory, and provided they are contrary to public
policy or the law of the land.
A union's constitution and by laws govern the relationship between and among its
members. As in the interpretation of contracts, if the terms are clear and leave no
doubt as to the intention of the parties, the literal meaning of the stipulation shall
control.
Limitation to By-laws
A statute providing that labor unions may devise and adopt ways and
means to make their rules, regulations, and by-laws, and resolutions
effective does not sanction rules, regulations, by-laws or resolutions to
commit wrong, nor does it authorize interference with the constitutional
rights of others.
Action on the Application/Notices of Registration
The Regional Office or the Bureau, as the case may be, shall act on all
applications for registration or notice of change of name, affiliation,
merger and consolidation within ten (10) days from receipt either by:
(a) approving the application and issuing the certificate of
registration/acknowledging the notice/report; or
(b) denying the application/notice for failure of the applicant to
comply with the requirements for registration/notice.
Denial of Application/Return of Notice
Where the documents are incomplete or do not contain the required
certification and attestation, the Regional Office or the Bureau shall, within
five (5) days from receipt of the application/notice, notify the
applicant/labor organization concerned in writing of the necessary
requirements and complete the same within thirty (30) days from receipt
of notice.
Where the applicant/labor organization concerned fails to complete the
requirements within the time prescribed, the application for registration
shall be denied, or the notice of change of name, affiliation, merger and
consolidation returned, without prejudice to filing a new application or
notice.
Appeal from the denial
The denial by the regional office may be appealed to the Bureau and then
to the Court of Appeals.
The appeal should be filed within ten (10) days from receipt of such notice,
on the ground of grave abuse of discretion or violation of these Rules.
The memorandum of appeal shall be filed with the Regional Office or the
Bureau that issued the denial/return of notice.
The memorandum of appeal together with the complete records of the
application for registration/notice of change of name, affiliation, merger or
consolidation, shall be transmitted by the Regional Office to the Bureau or
by the Bureau to the Office of the Secretary, within twenty-four (24) hours
from receipt of the memorandum of appeal.
The Bureau or the Office of the Secretary shall decide the appeal within
twenty (20) days from receipt of the records of the case.
Affiliation
An affiliate is an independently registered union that enters into an
agreement affiliation with a federation or a national union.

It also refers to a chartered local which applies for and is granted an

independent registration but does not disaffiliate from its mother
federation or national union.
Principal-Agent Relationship in Affiliation
The relationship between a local or chapter and the labor federation or
national union is generally understood to be that of agency, where the
local is the principal and the federation the agent.
Despite affiliation, the local union remains the basic unit free to serve the
common interest of all its members.
Disaffiliation
It has been repeatedly held that a local union, being a separate and
voluntary association, is free to serve the interest of all its members
including the freedom to disaffiliate when circumstances warrant. This
right is consistent with the constitutional guarantee of freedom of
association.
In other words, to disaffiliate is a right, but to observe the terms of
affiliation is an obligation.
Disaffiliation of employees from their mother union and their formation
into a new union do not terminate their status as employees of the
corporation as the employees and members of the local union did not form
a new union but merely exercised their right to register their local union.
However, the disaffiliating must itself be a registered union. If
unregistered, it is not a legitimate labor organization. For this reason, it
has no legal personality and does not possess the rights granted under
Article 250.
Local union represented by a national federation was recognized as sole
bargaining agent. 32 out of 36 members of local union disaffiliated from
the mother federation. Mother federation, because of union security
clause recommended that the employer terminate employees. Court held
that local union is principal and national federation is agent and since the
majority wanted to disaffiliate, dismissal was unjustified.]
Local union left old federation and joined a new one. In the absence of
enforceable provisions in the federation's constitution preventing
disaffiliation of a local union, a local may sever its relationship with its
parent. Also, mother federation wasn't registered with the Department of
Labor and therefore didn't have legal personality to enforce its
constitution (ooops) and the ground was on a technicality in their
constitution which cannot rise above the fundamental right to self
organization]
When to Disaffiliate
Generally, a labor union may disaffiliate from the mother union to form a
local or independent union only during the 60-day freedom period
immediately preceding the expiration of the CBA.
But even before the onset of the freedom period (and despite the closed
shop provision in the CBA between the mother union and management)
disaffiliation may still be carried out, but such disaffiliation must be
effected by a majority of the members in the bargaining unit.
Affiliation/Disaffiliation: A Summary
A local union may affiliate or disaffiliate from a federation. But affiliation
and disaffiliation entail rights and obligations. Internally, between the

union and its members affiliation/disaffiliation is a major issue that can

only be decided by a majority of the members through a secret balloting in
a formal meeting duly called for the purpose. Externally, between the
chapter and the federation, affiliation/disaffiliation is a contractual relation.
Revocation of a charter
By serving on the latter a verified notice of revocation, copy furnished the
Bureau, on the ground of disloyalty or such other grounds as may be
specified in the constitution and by-laws of the federation, national union
or workers association.
The revocation shall divest the local/chapter of its legal personality upon
receipt of the notice by the Bureau, unless in the meantime the
local/chapter has acquired independent registration in accordance with
these Rules.
Invalid grounds for cancellation of registration
Illegal strike is not reason to cancel a unions registration
Non-renewal of registration/permit will not cause dismissal of the case filed
by the union, provided that when it filed the petition, it had the juridical
personality and the court acquired jurisdiction over the case
The case could continue without need of substitution of parties, but the
decision to be rendered would bind only those union members who had
not withdrawn from the case before its trial and decision on the merits
Petition for Cancellation of registration
Any party in interest may commence a petition for cancellation of a
unions registration
Where the employer sought and won the cancellation of the unions
registration on the ground that it failed to submit the required documents,
such as books of accounts and the union by-laws, when it applied for
Where the employer questioned the inclusion of some supervisors in the
rank and file union. The petition filed by the employer led to the
divestment of legal personality of the union because its mixed
membership makes it not a labor organization at all.
The petition to cancel shall be under oath and shall state clearly and
concisely the facts and grounds relied upon, accompanied by proof of
service to the respondent. But such petition should be a separate action; it
cannot be entertained in the petition for certification election filed by the
union
Where to file the Petition for Cancellation of registration
Subject to the requirement of Notice and Due Process, the registration of
any legitimate independent labor union, chartered local and workers
association may be cancelled by the regional director, or in the case of
federation, national or industry union and trades and trade union centers,
by the Bureau Director, upon the filing of an independent complaint or
petition for cancellation.
Cancellation orders issued by the Regional Director are appealable to the
BLR. The latters decision id final and executory, hence not appealable to
the DOLE secretary but it may be elevated tot eh Court of Appeals by
certiorari. BLR decisions on cancellation cases that originated at the BLR
itself may be appealed to the Secretary by certiorari to the CA.
Nature of Relation between union and its members

The union has been evolved as an organization of collective strength for

the protection of labor against the unjust exaction of capital, but equally
important is the requirement of fair dealing between the union and its
members, which is fiduciary in nature, and arises out of two factors:
One is the degree of dependence of the individual employee on the union
organization
The union may be considered but the agent of its members for the
purpose of securing for them fair and just wages and good working
conditions. As an agent, the union is subject to the obligation of giving the
members as its principals all information relevant to union and matters
entrusted to it.
Rights of Union Members
Political right- the members right to vote and be voted for, subject to
lawful provisions on qualifications and disqualifications.
Deliberative and decision making right- the members right to participate
in deliberations on major policy questions and decide them by secret ballot
Rights over money matters- the members right against excessive fees;
the right against unauthorized collection of contributions or unauthorized
disbursements; the right to require adequate records of income and
expenses and the right of access to financial records, the right to vote on
officers compensation; the right to vote on proposed special assessments
and be deducted a special assessment only with the members written
consent.
Right to information- the members right to be informed about the
organizations constitution and by-laws and the CBA and about labor laws.
Membership in the union does not divest the members of their primary
standing as employees. In this capacity, an individual stands apart from
the union. He has a personality and the right to make individual personal
representation to the employer. The worker is an employee first and a
union member second. As between the members and the union, the
members are the principal, the union is the agent or representative. The
sovereign power emanates from the people is as true as true in a state as
it is in a labor union.
When, how and under what conditions does an employee become a union member?
An employee is qualified for union membership starting on the first day of
service.
An employees membership in a union however does not necessarily mean
coverage by the CBA, if one exists. The CBA defines its coverage as agreed
by the parties. It may state that it covers only regular employees, thus
excluding the probationary employees, and even among regular
employees, it may exclude certain positions or jobholders.
Qualifying for union membership therefore does not necessarily mean
inclusion in the coverage of the CBA. The reverse is equally true:
membership in the CBU does not automatically mean membership in the
union.
Summary:
Inclusion in the CBU depends on the determination of its appropriateness
under Art 239 and 266
Inclusion or membership in a union depends on the union constitution and
by-laws, without prejudice to Art 291c

Inclusion or coverage in the CBA depends on the stipulations of the CBA

itself.
Election of Union Officers
The officers of the union are elected directly by the members in secret
ballot voting.
The election takes place at intervals of 5 years which is the term of office
of the union officers including those of national union, federation or trade
union center.
What positions to fill up, where and how the election should be done are
matters left by the law to the unions constitution and by-laws or to
agreement among the members.
The Implementing Rules require the incumbent president to create an
election committee within 60 days before expiration of the incumbent
officers term. The rules specify the composition as well as the powers and
duties of the election committee, but its rules and actions cannot
contradict the Labor Code mandates.
If the officers with expired term do not call an election, the remedy
according to Rule XII is for atleast 30% of the members to file a petition
with the DOLE Regional Office.
The members frustration over the performance of the union officers, as
well as their fear of a fraudulent election to be held under the latters
supervision, does not justify disregard of the unions constitution and bylaws.
Eligibility of Voters
Only members of the union can take part in the election of union officers.
Every member in good standing is entitled to one vote
A member in good standing is any person who has fulfilled the
requirements for membership in the union and who has neither voluntarily
withdrawn from membership nor been expelled or suspended from
membership after appropriate proceedings consistent with the lawful
provisions of the unions constitution and by-laws.
A labor organization may prescribe reasonable rules and regulations with
respect to voting eligibility.
1. Any rule denying dues-delinquent members the right to vote
must be applied uniformly
2. Members must be afforded a reasonable opportunity to pay
dues, including a grace period which dues may be paid without
any loss of rights
3. Submission of the employees name with the Bureau of Labor
Relations as qualified members of the union is not a sine qua
non to enable said members to vote in the election of the
unions officers.
Union Officer must be a member
- One should be employed in the company to qualify as officer of a union in that
company. Although subsequent department orders deleted this provision, the
membership qualification remains because it is required in the Code itself, in
Art 241 (c), second sentence.
Disqualification of Union Officers

No person who has been convicted of a crime involving moral turpitude shall
be eligible for election as a union officer or for appointment to any position in
the union.
- Crime involving moral turpitude- characterized by an act of baseness, vileness
or depravity in the private or social duties which a man owes his fellowmen, or
to society in general, contrary to accepted and customary rule of right and
duty between man and man, or conduct contrary to justice, honesty, modesty,
or good morals.
- No labor organization shall knowingly admit a member or continue in
membership any individual who belongs to a subversive organization or who is
engaged directly or indirectly in any subversive activity.
Actions against Union Officers
- A union officer, after his election, may not be expelled from the union for past
malfeasance or misfeasance. To do so would nullify the choice made by the
union members.
- Remedy against erring union officers is not referendum but expulsion.
If the union officers were guilty of the alleged acts imputed against them,
the DOLE Sec. should have meted out the appropriated penalty on them, i.e.,
to expel them from the Union and not call for a referendum to decide the
issue.
- Where the people have elected a man to office, it must be assumed that they
did this with the knowledge of his life and character and that they disregarded
or forgave his faults or misconduct if he had been guilty if any.
Expulsion of Members
- A member of a labor union may be expelled only for a valid cause and by
following the procedure outlined in the constitution and by-laws of the union.
- If after an investigation the petitioners were found to have violated union
rules, then and only then should they be subjected to proper disciplinary
measures.
- Expulsion of a member for arbitrary or impetuous reason may amount to
unfair labor practice by the union. This matter is taken up in the chapter on
U.L.P. particularly Article 259.
Relief within the Union
- General Rule: Redress must first be sought within the union itself in
accordance with its constitution and by-laws.
- Exceptions: Where exhaustion of remedies within the union itself would
practically amount to a denial of justice, it would not be insisted upon, as a
condition to the right to invoke the aid of a court.
- In the case, noteworthy is the fact that the complaint was filed against the
union and its incumbent officers, some of whom were members of the board
of directors. The constitution and by-laws of the union provide that charges for
any violations thereof shall be filed before the said board. But as explained by
the lower court, if the complaints had done so the board of directors would in
effect be acting as respondent investigator and judge at the same time. To
follow the procedure indicated would be a farce under the circumstances,
where exhaustion of remedies within the union itself would practically amount
to a denial of justice or would be illusory or vain, it will not be insisted upon,
particularly where property rights of the members are involved, as a condition
to the right to invoke the aid of a court.

The union members have chronicled from the very beginning that they were
indefinitely suspended without the benefit of a formal charge sufficient in form
and substance. The rule on exhaustion of administrative remedies cannot
squarely apply to them.
Visitorial Power
- Article 288 authorizes the SOLE or his duly authorized representative to
inquire into the financial activities of any labor organization on the basis of a
complaint under oath, supported by a 20 percent of the membership in order
to determine compliance or noncompliance with the laws and to aid in the
prosecution of any violation thereof.
Check-offs and Assessment
- A check-off is a method of deducting from an employees pay at prescribed
period, the amounts due the union for fees, fines, or assessments. The right of
a union to collect union dues is recognized under Article 291 (a).
- Art. 113, one of the lawful deductions from employees wage is for union
dues, in cases where the right of the worker or his union to check-off has been
recognized by the employer or authorized in writing by the individual worker
concerned. But the amount of union dues must be reasonable
- Art. 249, prohibits the imposition of excessive or arbitrary fees.
- The amount and collection of union dues are questions that affect the entire
membership; hence, they have to be approved by the members themselves.
[Art. 249 (d)]
Assessments, like Dues, may also be Checked-off
- Dues- payments to meet the unions general and current obligations. The
payment must be regular, periodic, and uniform. Payment used for a special
purpose, especially if required only for a limited time, are regarded as
assessment.
- Art. 249- No special assessment, attorneys fees, negotiation fees or any other
extraordinary fees may be checked off from any amount due an employee
without individual written authorization duly signed by the employee. The
authorization should specifically state the amount, purpose and beneficiary of
the deduction.
- Attorneys fees may not be deducted or checked off from any amount due to
an employee without his written consent, except for mandatory activities
under the code.
Deductions for union service fee are authorized by law and do not require individual
check-off authorizations.
- However, the benefits awarded to the employees formed part of the collective
bargaining negotiations although placed under compulsory arbitration.
Notwithstanding its compulsory nature, compulsory arbitration is not the
mandatory activity under the Code which dispenses with individual written
authorizations for check-offs. It is a judicial process of settling deputes laid
down by law. Besides, Art. 288 (b) does not except a CBA later placed under
compulsory arbitration, from the ambit of its prohibition. In other words,
individual written authorizations are needed to deduct from members salary
the attorneys fee for concluding a CBA although compulsory arbitration.
- Special Assessment may be checked-off, but Art. 249 should be carefully
complied with.
The collection of special assessment partly for the payment
services rendered by union officers, consultants and others may

not be in the category of attorneys fees or negotiation fees.

But there is no question that it is an exaction which falls within
the category of a similar charge, and, therefore, within the
coverage of the prohibition in the aforementioned article.
Check-off of agency fee
- Another allowable deduction from ees wage is agency fee.
- This is an amount equivalent to union dues, which a nonunion member pays
to the union because he benefits from the CBA negotiated by the union. It is
agency fee because in negotiating the CBA the union served as the
employees agent. (Art 258 (e)
Employers Liability in Check-off Arrangement
- Employers failure to make the requisite deductions may constitute a violation
of a contractual commitment for which it may incur liability for unfair labor
practice. But the employer does not, by that omission, incur liability to the
union for the aggregate of dues or assessments uncollected from the union
members or agency fees for non-union employees.

Rights of Legitimate Labor Organization

Right of Union to represent its members

- It is the function of a labor union to represent its members against the
employers unfair labor practices. It can file an action in their behalf without
the cumbersome procedure of joining each and every member as a separate
party.(Davao free workers front vs. CIR, 60 SCRA 408 [1974])
- A labor union has the requisite personality to sue on behalf of its members for
their individual money claims. It would be be an unwarranted impairment of
the right to self-organization if such collective entities would be barred from
instituting action in their representative capacity. (La Carlota Sugar Central vs.
Court of Industrial Relations, 64 SCRA 78 [1975] )
- The means employed by the employer in dealing with the workers individually,
instead of collectively through the union and its counsel, violates good morals
as they undermine the unity of the union and fuels industrial disputes,
contrary to the declared policy in the Industrial Peace Act. ( Pampanga Sugar
Development Co., Inc. vs. CIR, 114 SCRA 725[1982] )
Compromise of Money Claims
- Money claims due to laborers cannot be the object of
settlement or compromise effected by a union or counsel
without specific individual consent of each laborer concerned.
The beneficiaries are the individual complainants themselves.
The union to which they belong can only assist them but cannot
decide for them.
- A judgment based on a compromise agreement authorized by
the members does not bind the individual members or
complainants who are not parties thereto nor signatories
therein. (Kaisahan ng mga manggagawa sa La Campana vs.
Sarmiento, 133 SCRA 220 [1984].)
Right to be furnished with Financial Statements
- To better equip the union in preparing for or in negotiating with the employer,
the law gives it the right to be furnished with the employers audited financial

statements. There are four points in time when the union may ask in writing
for these statements:
i. after the union has been recognized by the employer as sole
bargaining representative of the employees in the bargaining unit; or
ii. after the union is certified by DOLE as such sole bargaining
representative; or
iii. during the collective bargaining negotiation; or
iv. within the last 60 days of the life of a CBA.
- Under Article 253, the last 60 days of the CBA is the time to give notice to
terminate or modify the CBA. Therefore, this is the time also for the union to
gather fresh information on the financial condition of the company to enable it
to prepare intelligently for the forthcoming CBA renegotiation.
- The audited financial statements, including the balance sheet and the profit
loss statement, should be provided by the employer within 30 calendar days
after receipt of the unions written request.
Right to collect dues
- Dues are defined as payments to meet the unions general and current
obligations. The payment must be regular, periodic, and uniform. Payments
used for special purpose, especially if required only for a limited time, are
regarded as assessment.

Coverage and Employees Right to Self-organization.

Coverage of the Right to Organize; Exceptions

- The right to form , join or assist a labor organization is granted to all kinds of
employees of all kinds of employers --- Public or private, profit or non-profit,
commercial or religious. Their usual form of organization is a union and the
usual purpose is collective bargaining with their employers.
- But the seemingly all-inclusive coverage of all persons in Aricle 243 actually
admits of exceptions.
- Under Article 245 managerial employees, regardless of the kind of
organization where they are employed, may not join, assist or form any labor
organization, meaning a labor union. Otherwise, they would be exposed to the
temptation of colluding with the union during the negotiations to the
detriment of the employer
- Supervisors are allowed to organize, but they cannot form, join or assist a
rank-and-file union.
Right to organized cannot be bargained away
- The right to self-organization must be upheld in the absence of an express
provision of law to the contrary. It cannot be curtailed by a collective
bargaining agreement.
EEs of non-profit institution
- The rank-and-file employees of non-profit medical institutions are permitted to
form, organize or join labor unions of their choice for purposes of collective
bargaining.
Employee-members of Cooperative
- Owners and/or members of the cooperatives are the ones who run and
operate the business while the others are its employees. Irrespective of the

number of shares owned by its members they are entitled to cast one vote
each in deciding upon the affair of the cooperative.
- An employee of such a cooperative who is a member and co-owner thereof
cannot invoke the right to collective bargaining, for certainly an owner cannot
bargain with himself or his co-owners.
- However, insofar as it involves cooperatives with employees who are not
members or co-owners thereof, such employees are entitled to exercise the
rights of all workers to organization, collective bargaining negotiations and
others as are enshrined in the Constitution and existing laws of the country.
- It is the fact of ownership of the cooperative, and not involvement in the
management thereof, which disqualifies a member from joining any labor
organization within the cooperative. (Benguet Electric Cooperative, Inc. vs.
Ferrer-Calleja, G.R. No. 79025, December 29, 1989.)
- But member-employee of a cooperative may withdraw as members of the
cooperative may withdraw as members of the cooperative in order to join a
labor union.Membership in a cooperative is voluntary; inherent in it is the right
not to join(Central Negros Electric Corp. vs. Sec. of Labor, et al., G.R. No.
94045, September 13, 1991.)
- While members of cooperative who are also its employees cannot unionize for
bargaining purposes, the law does not prohibit them from forming an
association for their mutual aid and protection as employees.
International Organization
- Employees of an organization immuned from Philippines jurisdiction cannot
unionize.
- The grant of such immunity is a political question whose resolution by the
executive branch of government is conclusive upon courts.
Foreign Workers
- Foreigners, whether natural or juridical, as well as foreign corporations, are
strictly prohibited from engaging directly or indirectly in all forms of trade
union activities. However, aliens working in the country with valid work
permits may exercise the right of self-organization if they are nationals of a
country that grants the same or similar right to Filipino workers. (Article 269
LC)
Rights of EEs in Public Service
- The highest law of the land guarantees to government employees the right to
organize and to negotiate, but not to strike.
- prohibit government employees(including those employed in proprietary
functions of the Government) to Strike for the purpose of securing changes
of their terms and conditions of employment,
- the right to self-organization does indeed pertain all employees of all
branches, subdivisions, Instrumentalities and agencies of the government,
including government-owned or controlled corporations with original charters.
- Employees of government corporations established under the Corporation
Code Shall have the right to organize and bargain collectively with their
respective employers.
- Government Employees right to organize limitations
- the highest law of the land guarantees to government employees the right to
organize and negotiate but not to strike.
- MEMBERS OF AFP, police officers, policemen, firemen and jail guards. FOR
REASONS OF SECURITY AND SAFETY THEY ARE NOT ALLOWED TO UNIONIZE.
- Even temporary employees may organize

Ineligibity of Managerial EEs to join any organization

- the term managers refer to anyone who is responsible for subordinates and
other organizational resources
- managerial employees are not eligible to join, assist or form any labor
organization. Supervisory employees shall not be eligible for membership in
the collective bargaining unit of the rank and file employees but may join,
assist, or form separate collective bargaining units and/or legitimate labor
organizations of their own. The rank-and-file union and the supervisory union
operating within the same establishment may join the same federation or
national union.
Effect of inclusion as union members of the employees outside the bargaining unit
- the inclusion as union members of the employees outside the bargaining unit
shall not be ground for the cancellation of the registration of the union. Said
employees are automatically deemed removed from the list of membership of
said union.
Evolution of supervisors rights to organize
- unlike managers, supervisors can organize.
Definitions of Manager and Supervisor
- A supervisor has the power only to recommend while a managerial employee
has the power to decide and do those acts.
- A manager must possess managerial powers (to lay down and execute
management policies and/or to hire, transfer, suspend, lay-off, recall,
discharge, assign or discipline employees).
- If he can only recommend the exercise of any of these powers he is only a
supervisor.
- in short, a manager makes policy decisions or people decisions or both; a
supervisor recommends those decisions. One is a decision maker, the other, a
recommender.
Test of Supervisory Status
- whether a person possesses authority to effectively recommend managerial
actions in the interest of his employer
- whether such authority is not merely routinary or clerical in nature, but
requires the use of indepentdent action
- when such recommendatory powers are subject to evaluation, review and
final action, the same, are not effective and not considered as an exercise of
independent judgment as required by law
The power to recommend
must not only be effective but should require the use of
independent judgment
should not be merely of a routinary or clerical nature
Segregation of rank-and file and supervisors
- Supervisory employees are allowed to form, join or assist separate labor
organizations of their own, but they are not eligible for membership in a labor
organization of the rank-and-file employees. Neither may rank-and file join a
union of supervisors
- It will be doubly detrimental to the employer if the supervisors and rank-andfile, as members of only one union, could take a common stand against the
employer.
Confidential employees

are those who assist and act in a confidential capacity to, or have access to
confidential matters of, persons who exercise managerial functions in the field
of labor relations (Philips case, GR No. 88957, June 25, 1992)
- are those who by reason of their position or nature of work are required to
assist or act in a fiduciary manner to managerial employees and hence, are
likewise privy to sensitive and highly confidential records. (Metrolab case, GR
No. 108855, Feb. 28, 1996)
- do not constitute a distinct category of employees for purposes of the right to
self-organize
- confidentiality is not a matter of rank, it is a matter of job content and
authority
- every managerial position is confidential but not every confidential employee
is managerial; he may be a supervisory or even a rank-and-file employee
- the confidentiality of the position should relate to labor relations (labor
nexus)
- The Court noted that while the Labor Code singles out managerial employees
as ineligible to join, assist, or form any labor organization, under the doctrine
of necessary implication, confidential employees are similarly disqualified
- These employees are confidential employees. By the very nature of their
functions, they assist and act in a confidential capacity to, or have access to
confidential matters of, persons who exercise managerial functions in the field
of labor relations. As such, the rationale behind the ineligibility of managerial
employees to form, assist, or join a labor union equally applies to them.
- Forming part of the bargaining unit, the executive secretaries stand to benefit
from any agreement executed between the Union and Metrolab. Such a
scenario, thus, gives rise to a potential conflict between personal interests and
their duty as confidential employees to act for and in behalf of Metrolab. They
do not have to be union members to affect or influence either side.
- Confidential employees cannot be classified as rank-and-file. The nature of
employment of confidential employees is quite distinct from the rank-and-file,
thus, warranting a separate category. Excluding confidential employees from
the rank-and-file bargaining unit, therefore, is not tantamount to
discrimination.
- Access to information which is regarded by the employer to be confidential
from the business standpoint, such as financial information or technical trade
secrets, will not render an employee a confidential employee.
- It must be access to confidential labor relations information.
Workers in export processing zones
- Export processing zones, anywhere in the Philippines, are part of Philippine
territory which is subject to its sovereignty and laws. To them therefore applies
with undiminished force the Philippine Constitution that guarantees the
workers rights to organize, to strike and so forth.
- The zone workers cannot be denied these constitutional rights.
- ILO titled Tripartite Declaration of Principles Concerning Multinational
Enterprises and Social Policy states: Where governments of host countries
offer special incentives to attract foreign investments, these incentives should
not include any limitations on the workers freedom of association or the right
to organize and bargain collectively.

Unfair Labor Practice

Self-organization is a prerequisite the lifeblood of industrial democracy, hence, any act
that aims to weaken or defeat said right is treated as an offense. The offense is technically
called Unfair Labor Practice.
Unfair Labor Practice is NOT unfair practice BY labor, rather, a practice unfair TO labor.
OFFENDER in Unfair Labor Practice: either the (1) Employer, (2) Labor Organization
VICTIM of Unfair Labor Practice: (1) workers as a body, (2) Employers who value industrial
peace, (3) People in general because the violation of the right to self-organization is
considered a PUBLIC OFFENSE which carries both civil and criminal liabilities.

ULP vs Breach of an obligation of the ER

- In ULP, it involves violation of public right or policy, hence, prosecuted like
criminal offenses.
- In Breach of an obligation by the employer to his employees involves only a
contractual breach, hence, to be redressed like an ordinary contract or
obligation.
Elements of ULP at the Enterprise Level
- There is Employer-Employee relationship between the offender and the
offended party.
- Because U.L.P is negation of, a counteraction to, the right to organize which is
guaranteed to employees in relation to their employer. No labor organizational
right can be negated or assailed if employer-employee relationship is absent.
- U.L.P is and has to be related to the right to self-organization and to the
observance of the CBA, it follows that not every unfair act is unfair labor
practice.
- Unfair Labor Practice, therefore, has a limited, technical meaning because it is
a labor relations concept with a statutory definition. It refers only to acts
opposed to workers right to organize. Without that element (referring to
opposing to workers right to organize), the act, no matter how unfair is not
unfair labor practice as legally defined.
Prosecution of U.L.P
- Art. 257 states that U.L.P has CIVIL and CRIMINAL aspects.
- As to the CIVIL ASPECT
it may include liability for damages and these may be passed upon by
a labor arbiter. What is required in Labor cases in the NLRC is only
SUBSTANTIAL EVIDENCE.
- As to the CRIMINAL ASPECT
for it to be prosecuted, there is still a NEED of the FINALITY OF
JUDGMENT in the LABOR CASE(civil aspect), finding that the alleged
offender indeed committed unfair labor practice. But such judgment
will not serve as evidence of unfair labor practice in the criminal case
since such criminal charge must be proved independently from the
labor case. And that, PROOF BEYOND REASONABLE DOUBT is needed
to convict in the criminal case of unfair labor practice.
- Jurisdiction of CRIMINAL CHARGE Municipal/Regional Trial Court.
- Prescription of the CRIMINAL OFFENSE one (1) year the commission of the
act

Unfair Labor Practices of Employers

Before an employee maybe considered aggrieved by an alleged unfair labor
practice by an employer, it must be demonstrated, FIRSTLY, that the
INJURED party comes within the definition of employee as the term is
defined by the code, and SECONDLY, the act charged as U.L.P. must fall under
the prohibitions of Art. 258 (acts of the employers) or Art. 259 (acts of the
labor union).
EMPLOYEE includes any person in the employ of an employer. The term
shall not be limited to the employees of a particular employer, unless this
code so explicitly states. It shall include any individual whose work ceased as
a result of or in connection with any current labor dispute or because of any
unfair labor practice if he has not obtained any other substantially equivalent
and regular employment. (Art. 219 [212] definitions)
The law on unfair labor practices is not intended to deprive the employer
of his fundamental right to prescribe and enforce such rules as he honestly
believed to be necessary to the proper, productive, and profitable operation of
his business (MANAGAMENT RIGHT). HENCE, no ULP if there is VALID
EXERCISE of MANAGEMENT RIGHTS
Determining the validity of an employers act involves an appraisal of his
motives. It is for the NLRC, in the first instance, to weigh the employers
expressed motive in determining the effect of the employees of
managements otherwise equivocal act.
An employer who interfered with the right to self-organization before the
union is registered can be held guilty of ULP.
1. Interference
2. Yellow dog condition
3. Contracting out
4. Company unionism
5. Discrimination for or against union membership
6. Discrimination because of testimony
7. Violation of duty to bargain
8. Paid negotiation
9. Violation of CBA
Interference
- Outright and unconcealed intimidation is the most obvious form of
interference. Such conduct, even if done only once, constitutes ULP and will
support a cease and desist order by the Board.
- The employees executed affidavits describing the meeting that they had with
the management which was requested by the employees to discuss certain
matters. The affidavit was used as a basis for a charge of grave slander
against the management.
- Management dismissed the employees for executing the affidavit claiming
that it was an act of breach of trust and confidence inimical to the interest of
the company.
- Ruling: management committed unfair labor practice in dismissing the
employees. The dismissal amounted to interference with, and restraint and
coercion of, the petitioners in the exercise of their right to engage in
concerted activities for their mutual aid and protection. (the CBA was about to
be renegotiated, after the dismissal of some of the employees, wala nai
nahibilin nga officer sa union kai na.dismiss na tanan)

Persistent interrogation of employees to elicit information as to what had

happened at union meetings and the identity of the active union employees
was held as violative of organizational rights of employees
When will the interrogation be deemed not coercive?
- Employer must inform the employee the purpose
of the questioning
- Assure that no reprisal will take place
- Participation in the questioning is voluntary
It is an ULP to discharge a supervisor because he refuses to commit unfair
labor practices or because the union activities of an employee, who happens
to be the wife of the supervisor.
Examples of unlawful acts to discourage membership in labor organization:
Dismissal upon refusal to give up membership
Refusal over a period of years to provide salary adjustments as
stipulated in the CBA
Dismissal on account of joining a union and engaging in union
activities
Violations have been found where the employer threatened
employees favoring union with force or violence, as warning
them against getting caught with a union leaflet
Announcement of benefits intended to induce the employees to
vote against the union constitutes interference.
A lockout, actual or threatened, as a means of dissuading the
employees from exercising their rights under the labor code is
clearly an ULP. But an honest closing of ones plant is not a
violation.
An employer which closed its business to put an end to a
unions activities, and which made no effort to allow the
employees attempt to exercise their right to self-organization
and collective bargaining, and even threatening the employees
that they would lose their jobs if they did not cease affiliation
with the union, commits ULP.
Closure is likewise not legal and the employees cannot be
separated if, in fact, there is no closure because the closed
department or company reappeared although under a new
name. If the new company is, for instance, engaging in the
same business as the closed company or department, or is
owned by the same people, and the closure is calculated to
defeat the workers organizational right, then, the closure may
be declared subterfuge and the doctrine of successor employer
will be applied, that is, the new company will be treated as a
continuation or successor of the one that closed. If such be the
case, the separated employees will have to be employed in the
new firm because in the first place they should not have been
separated at all.

Yellow dog condition

Contract provisions whereby an employee agrees that during the period of his
employment he will not become a member of a labor union have been
outlawed in the united states.
- The yellow dog contract is a promise exacted from workers as a condition of
employment that they are not to belong to, or attempt to foster, a union
during their period of employment.
- A typical yellow dog contract usually includes the following provisons:
A representation by the employee that he is not a member of a labor
union
A promise by the employee not to join a labor union
A promise that upon joining a union, he will quit his employment
o Runaway Shop
- Runaway shop- an industrial plant moved by its owners from one
location to another to escape union labor regulations or state laws but
the term is also used to describe a plant removed to a new location in
order to discriminate against employees at the old plant because of
their union activities. It also refers to business relocation animated by
anti-union animus.
- Where plant removal is for business reasons but the relocation is
hastened by anti-union motivation, the early removal is an unfair labor
practice. Sameness of business is not reason enough to show run-away
shop to pierce the veil of separate corporate entity.
- The mere fact that one or more corporations are owned or controlled
by the same or single stockholder is not sufficient ground for
disregarding separate corporate personalities. The basic rule is that
mere ownership by a single stockholder or by another corporation of all
or nearly all of the capital stock of a corporation is not of itself
sufficient ground for disregarding the separate corporate personality. In
the present case, there was also a complete cessation of the business
operations. (Complex Electronics Employees Association v. NLRC, et al.
GR#: 121315, July 19,1999)
Company Union
- Domination of labor union usually manifests in the following forms:
- Initiation of the company union idea
- Outright information by the employer or his representatives;
- Employee information on outright demand or influence by employer;
- Managerially motivated formation by employees
- Financial support to the union;
- Employer encouragement and assistance;
- Supervisory assistance
- Key officials of the company have been forcing the employees
belonging to a rival union to join the company-dominated union under
pain of dismissal should they refuse to do so;
- Key officials of the company, as well as its legal counsel, have attended
the election of officers of the company-dominated union;
- Officers and members of the rival union were dismissed allegedly
pursuant to a retrenchment policy of the company, after they had
presented demands for the improvement of the working conditions
despite its alleged retrenchment policy;
- After dismissal of the aforesaid officers of the rival union, the company
engages the services of new laborers.

Discrimination for or against union membership

- What the law prohibits is discrimination to encourage or discourage
membership in a labor organization. Where the purpose is to influence
the union activity of employees, the discrimination is unlawful. But
discrimination is not the same as differentiation or classification.
- Under the Industrial Peace Act (as under the present Labor Code), the
discrimination committed by the employer must be in regard to the
hire or tenure of employment or any term or condition of employment
to encourage or discourage membership in any labor organization.
Discrimination occurs when a union member, involved in union activity,
is treated differently from a non-union worker. Antiunion animus is
found when the employers conduct is not motivated, or at least is not
entirely motivated by legitimate and substantial business reasons but
by a desire to penalize or reward employees for union activity or the
lack of it. Discouraging membership in a labor organization includes
not only discouraging adhesion to union membership but also
discouraging participation in union activities such as a legitimate
strike.
Forms:
o Discrimination in Work Quota
- In one case, the pharmaceutical company
increased the sales quota of the union president
and vice-president to 400% and 300%,
respectively, unlike those of the other field
representatives whose sales quota the company
increased by an average of 98% only. The
company could not give a valid explanation for
such marked difference.
o Discrimination in Bonus Allocation
- There is unfair and unjust discrimination in the
granting of salary adjustments where the
evidence shows that (a) the management paid
the employees of the unionized branch; (b) where
salary adjustments were granted to employees of
one of its nonunionized branches although it was
losing in its operations; and (c) the total salary
adjustments given every ten of its unionized
employees would not even equal the salary
adjustments given one employee in the
nonunionized branch.
o Discrimination in Layoff or Dismissal
- Discriminatory dismissal- even where business
conditions justified a layoff of employees, only
the unionists were permanently dismissed while
nonunionists were not.
The manner in which the prerogative is exercised should not be tainted with abuse of
discretion. Labor is a persons means of livelihood. He cannot be deprived of his labor
or work without due process of law. Retrenchment should not be oppressive and
abusive since it affects ones person and property. Due process of law demands

nothing less. (Bataan Shipyard and Engineering Co., Inc. v. NLRC, GR#: L-78604, May
09, 1988)
Test of Discrimination:
o In order to determine whether or not a discharge is discriminatory, it is
necessary that the underlying reason for the discharge be established. The
fact that a lawful cause for discharge is available is not a defense where the
employee is actually discharged because of his union activities. If the
discharge is actually motivated by a lawful reason, the fact that the employee
is engaged in union activities at the time will not lie against the employer and
prevent him from the exercise of his business judgment to discharge an
employee for cause. (NLRB v. Ace Comb Co., 342 F. 2 841)
o Where circumstances establish a discriminatory motive on the part of the
employer, the assignment of a just cause will be unavailing if it cant be
established that the true and basic inspiration for the employers act is
derived from the employees union affiliations or activities, the assignment by
the employer of another reason , whatever its semblance of validity, is
unavailing.
o Constructive Discharge- where the employer prohibits employees from
exercising their rights under the Act, on pain of discharge, and the employee
quits as a result of the prohibition.
Valid Discrimination: UNION SECURITY CLAUSE
Union Security Clause- a compulsory union membership that
essentially requires membership in the union so that the employee
may retain his job and the unions existence is assured.
Kinds of Union Security Agreements:
Closed-shop- only union members can be hired by the company
and they must remain as union members to retain employment
in the company.
Union Shop- nonmembers may be hired, but to retain
employment must become union members after a certain
period. The requirement applies to present and future
employees.
Modified Union Shop- employees who are not union members at
the time of signing the contract need not join the union, but all
workers hired thereafter must join.
Maintenance of Membership Shop- no employee is compelled to
join the union, but all present or future members must, as a
condition of employment, remain in good standing in the union.
Exclusive Bargaining Shop- the union is recognized as the
exclusive bargaining agent for all employees in the bargaining
unit, whether union member or not.
Bargaining for Members Only: the union is recognized as the
bargaining agent only for its own members.
Agency Shop- an agreement whereby employees must either
join the union or pay to the union as exclusive bargaining agent
a sum equal to that paid by the members. This is directed
against free rider employees who benefit from union activities
without contributing financially to union support.

Closed-shop agreement is one whereby the employer binds himself to

hire only members of the contracting union who must continue to
remain members in good standing to keep their jobs. It Is the most
prized achievement of unionism.
The State promotes unionism to enable the workers to negotiate with
management on the same level and with more persuasiveness than if
they were to individually and independently bargain for the
improvement of their respective conditions. To this end, the
Constitution guarantees to them the rights to self-organization,
collective bargaining and negotiations and peaceful concerted actions,
including the right to strike in accordance with law. These purposes
could be thwarted if every worker were to choose to go his own
separate way instead of joining his co-employees in planning collective
action and presenting a united front when they sit down to bargain
with their employers.
Means of encouraging the workers to join and support the labor union
of their own choice as their representative in the negotiation of their
demands and the protection of their interests vis--vis the employer;
Principle of sanctity or inviolability of contracts- freedom of employees
to organize themselves must be subordinated to the constitutional
provision protecting the sanctity of contracts
Advantages and Disadvantages of Closed-shop Agreement
- A closed shop agreement is advantageous because it icreases
the strength and bargaining power of labor organization
Prevents non-union workers from sharing in the benefits of the
unions activities without also sharing its obligations
- Prevents the weakening of labor organizations by discrimination
against union members.
- Eliminates the lowering of standards caused by competition
with non-union workers.
- Enables labor organizations effectively to enforce collective
agreements.
- Facilitates the collection of dues and the enforcement of union
rules.
- Creates harmonious relations between the employer and the
employee.
- But it is disadvantageous as it Results in monopolistic
domination of employment by labor organizations.
- Interferes with the freedom of contract and personal liberty of
the individual worker
- Compels employer to discharge all non-union workers
regardless of efficiency, length of service, etc
- Facilitates the use of labor organizations by unscrupulous union
leaders for the purpose of extortion, restraint of trade, etc.
- Denies to non-union workers equal opportunity for employment.
- Enables union to charge exorbitant dues and initiation fees.
Valid Dismissal Because of Application of Union Security Clause
- Union security clauses in CBA if freely and voluntarily entered into are valid
and binding. Thus, dismissal by the company pursuant to a labor unions
demand in accordance with a union security clause does not constitute ULP.

Even if unaware of the closed-shop stipulation, they are bound by it.

Ignorance or dissatisfaction would justify breach thereof.
Union members though entitled to disaffiliate from their union and to form a
new organization of their own, must suffer the consequences of their
separation from the union under the security clause.
- Where the employer dismissed his employees in the belief in good faith that
such dismissal was required by the close-shop provsions of the collective
bargaining contract with the union, he may not be ordered to pay back
compensations to such employees although their dismissal is found to be
illegal.
- Exemption from Compulsory Membership
All employees in the bargaining unit covered by a closed-shop clause in
a CBA are subject to its terms, except the following:
Religious objectorsThese are members of a religious sect that
prohibits membership in a labor union
Members of minority unionto hold that the employees in a company
who are members of a minority union may be compelled to disaffiliate
from their union and join the majority or contracting union, would
render nugatory the right of all employees to self organization and to
form, join or assist labor organizations of their own choosing.
Confidential Employeesthey are outside the bargaining unit being
represented by the bargaining union. The CBA does not apply to them.
Employees expressly excluded by CBA stipulation
- Agency Fee Instead of Union Membership
The employees who are benefitting from the CBA because they are
part of the bargaining unit, without being members of the bargaining
union, may be required to pay agency fee.
A written authorization from the non-union employee is NOT required.
The employees acceptance of the benefits from a collective bargaining
agreement justifies the deduction of agency fees from his pay and the
union[s entitlement thereto.
Quasi-contractualbecause employees may not unjustly enrich
themselves by benefiting from employment conditions negotiated by
the bargaining union.
The fee is collectible only from employees deriving economic benefits
from the union-negotiated CBA
Discrimination because of testimony
- By protecting the employees right to testify, the law therefore shields the
workers right to self-organization from indirect assault by the employer.
- Thus it is ULP to dismiss, discharge or otherwise prejudice or discriminate
against an employee for having given or being about to give testimony under
this Code.
- It violates right to engage in concerted activity.
- Concerted activity does not always require a number of people acting in
unison it is enough that an employee acting alone in pursuing a group interest
may be said to be dong a concerted activity which the employer may not
curtail.
- The employers retaliation against employee who refuses to testify in favour of
the employer is an ULP

The act of compelling employees to sign an instrument indicating that

employer observed labor standards provisions of law when he might not have,
together with the act of terminating or coercing those who refuse to cooperate
with the employers scheme, constitutes unfair labor practice.
- Analogous to the situation envisaged in Article 248f which distinctly makes it
an ULP to dismiss, discharge, or otherwise prejudice or discriminate against an
employee for having given or being about to give testimony.
Paid Negotiation
- Self organization is a treasured right of workers. The law zealously shields
them from corruption. It is ULP for the employer to pay the union or any of its
officers or agents any negotiation fee or attorneys fee as part of settlement in
collective bargaining or any labor dispute.
- It is ethically reprehensible.
Violation of CBA
- Implementation is still part of the bargaining process which it should be
recalled, rests on the parties duty to bargain.
- The duty to bargain requires good faith. And good faith implies faithful
observance of what has been agreed upon.
- It logically follows that noncompliance with the agreement is non-observance
of good faith in bargaining; therefore, the noncompliance amounts to ULP.
- HOWEVER, such violation must be GROSS as stated in Article 273.
Relief in ULP Cases
- Cease and Desist Order
If the Court after investigation finds that the person named in the
complaint has engaged or is engaging in any unfair labor practice, then
the Court shall state its findings of fact and shall issue or cause to be
served upon such person an order requiring him to cease and desist
from such unfair labor practice and take such affirmative action as will
effectuate the policies of the Act including the reinstatement of
employees with or without back pay and including rights of the
employees prior to dismissal, including seniority.
The Court is not authorized to issue blank cease and desist orders, but
must confine its injunction orders to specific act or acts which are
related to past misconduct.
A cease or desist order is not invalidated because an act complained of
was voluntarily discontinued prior to or during the course of
proceedings. However, if the act complained of happened so long a
time that theres no longer any threat or probability of a recurrence, a
cease and desist order will not be justified.
- Affirmative Order
The Court does not only have the power to issue negative or
prohibitive orders but also affirmative or positive orders.
The Court may issue an affirmative order to the respondent to reinstate
an employee dismissed discharged or otherwise prejudiced against for
having filed against or for having given testimony.
- Order to Bargain; Mandated CBA
If an employer has failed or refused to bargain with the proper
bargaining agent of his employees, the Court may, in addition to the
usual cease and desist orders, issue an affirmative order to compel the
respondent to bargain with the bargaining agent.

In one case, the Court has upheld the ruling imposing a collective
bargaining contract upon an employer who refused to bargain with the
union of its employees.
ULP is not subject to compromises.
- The relation between capital and labor are not merely contractual. They are so
impressed with public interest that labor contracts must yield to the common
good.
- But in 1997, SC held and affixed the stamp of approval to a compromise
settling a ULP based strike. It explained, while we do not abandon the rule
that unfair labor practice acts are beyond and outside the sphere of
compromises; the agreement herein was voluntarily entered into and
represents a reasonable settlement; thus it binds the parties.
ERs responsibility for ULP by acts of Subordinate
o No stringent rules. The peculiar circumstances of each case were considered
controlling.
o Where the facts in the case made doubtful the propriety or equity of imputing
to the employer responsibility for the acts of a particular employee, the
following considerations were often employed in deciding the issue:
o Knowledge by the employer of the employees improper acts: Where it
appears that ER was aware of the EEs wrongdoing, his failure to prevent
continuation of the course of conduct or his failure to renounce any
connection or affinity therewith, invited the imputation of fault and
responsibility to the employer.
o Continuity of improper conduct by the employer: A single utterance by a
supervisory employee, whether improvident or deliberate on the employees
part, was not ordinarily, and in the absence of proof of actual authority, held
to be sufficient to convict an employer of an unfair labor practice.
Interference by Union is not ULP
- the congressional concern is with means, not ends and the intention is to fix
the rules of the game and to insure that strikes and other union organizational
activities are conducted peaceably by persuasion and propaganda and not by
physical force, threats of force, or threats of economic reprisal
- Interference by labor organization is not U.L.P. because interfering in the
exercise of the right to organize is itself a function of self-organizing.
Refusal to Bargain
- U.L.P. under Article 249(c) is intended to insure that unions approach the
bargaining table with the same attitude of willingness to agree as the Act
requires of management.

Featherbedding
- Article 249 (d) refers to featherbedding, a term given to employee practices
which create or spread employment by unnecessarily maintaining or
increasing the number of employees used, or the amount of time consumed,
to work on a particular job.
Nature of Collective Bargaining
- Collective bargaining or negotiations towards collective agreement is a
democratic framework to stabilize the relation between labor and
management to create a climate of sound and stable industrial peace.

includes four related but distinguishable processes: (1) negotiation between

representatives of the management and the union over wages, hours, and
other terms... of employment; (2) the execution of a written contract
embodying the terms agreed upon: (3) negotiation of any question arising
as to the interpretation or application of the contract; and (4) negotiation over
the terms of a new contract or proposed modifications, when an existing
agreement is validly opened for negotiations.
- refers to a contract executed upon request of either the employer or the
exclusive bargaining representative of the employees incorporating the
agreement reached after negotiations with respect to wages, hours of work
and all other terms and conditions of employment, including proposals for
adjusting any grievances or questions under such agreement.
- it provides an orderly procedure by which each side can seek to present to the
other the best possible case for the satisfaction of its particular demands.
There is no guarantee of an agreed outcome, but he process of negotiation
creates at least the possibility that each side may move closer to the
attainment of its own separate objectives while contributing to the attainment
of those that are shared with the other side.
Jurisdictional preconditions of collective bargaining
- Possession of the status of majority representation of the employees
representative in accordance with any of the means of selection or
designation provided for by the Labor Code
- Proof of majority representation It is not an unfair labor practice for an
employer to refuse to negotiate until the asserted bargaining agent has
presented reasonable proof of majority representation. Such demand should
be made in (a) good faith and (b) not merely as a pretext for delay or evasion.
- A demand to bargain under Art 250 (a) of the Labor Code An employer is not
in default respecting the duty to bargain until a request therefor has been
made by the union
- If the three jurisdictional preconditions are present, the collective
bargaining should begin within 12 months following the
determination and certification of the employees exclusive
bargaining representative. This is called the certification year.
IMPORTANT
When should bargaining end?
- The law dictates no deadline. It only demands observance of honesty and
good faith.
Multi-employer bargaining
- Collective bargaining may take place at the national, industry or enterprise
level. The Philippines has so far tried only the enterprise-level or decentralized
bargaining. D.O. 40-03 introduces multi-employer bargaining (which is only
optional) but it does not define an industry union. For the procedure, pls
read D.O. 40-03, Rule XVI, Sections 5-7.
Duty to bargain
- Where there is yet no collective bargaining agreement Duty to bargain
means the mutual obligation of the employer and the employees majority
union to meet and convene for the purposes of:
- Negotiating an agreement on the subjects of:
Wages
Hours of work and

All other terms and conditions of employment including proposals for

adjusting grievances or questions arising under such agreement
Executing a contract incorporating such agreement if requested by
either party
The kind of compliance required prompt, expeditious and in good faith.
Limitations of the duty that it does not compel any party to agree to a proposal or
to make a concession. So no ULP when a party in good faith turns down a proposal.
Where a CBA exists The duty to bargain means all of the above plus the obligation
not to terminate or modify the CBA during its lifetime. But 60 days before the CBA
expires, either party may notify the other in writing that it desires to terminate or
modify the agreement. This 60-day period does not always coincide with the 60-day
period pertaining to the freedom period to resolve representation contest between
unions.
Four forms of ULP in Bargaining
- That there is a pending cancellation proceedings against the respondent union
is not a bar to set in motion the mechanics of collective bargaining. Unless its
certificate of registration and its status as the certified bargaining agent are
revoked, the hospital is duty bound to collectively bargain with the union.
- It is not a ULP when an employer refuses to bargain by rejecting the unions
economic demands where he is operating at a loss, on a low profit margin or
in a depressed industry, as long as he continues to negotiate. But financial
hardship constitutes no excuse for refusing to bargain collectively, nor does
the need to meet the exigencies arising from the competition in the trade.
- Adoption of an adamant bargaining position in good faith particularly when
the company is operating at a loss
- Refusal to bargain over demands for commission of unfair labor practices
- Refusal to bargain during period of illegal strike The employer has no
obligation to bargain until he is notified that the illegal strike has been
terminated.
Acts not Deemed Refusal to Bargain
- Suspecting that the employer was transferring the plant, the union demanded
information concerning the removal of equipment and machinery from the
factory. The employer refused. Was there a refusal to bargain collectively?
There was no violation of statutory duty to bargain since the removal of
equipment and machinery from the plant had no relevance to a possible
grievance or to contract administration and did not relate to wages, hours and
other terms and conditions of employment. (Acme Industrial Co. vs. NLRB, 52
LC 23, 630.)
- Where, pursuant to an honest doubt, the employer has demanded additional
proof or the acquisition of an official certification of bargaining agency, there
is no obligation or duty on the employers part to enter into negotiations until
the demanded proof is presented pending the certification proceedings,
unless it can be established that the demand lacks in good faith and is
intended as an obstruction to negotiations. (NLRB vs. National Seal Corp., 127
F. [2nd] 776).
Duty to bargain is not violated where:
- There is no request for bargaining;
- The union seeks recognition for an inappropriately large unit;
- The union seeks to represent some persons who are excluded from the Act;
- The rank-and-file unit includes supervisors or inappropriate otherwise;

The demand for recognition and bargaining is made within the year following
a certification election in which the clear choice was no union and no ad
interim significant change has taken place in the unit;
- The union makes unlawful bargaining demands. But a unions demand for
reinstatement of justifiably discharged strikers, which was not presented as
unconditional demand but rather as a bargainable issue was held no to excuse
an employer from its duty to bargain with the union.
Non-reply to Proposal; CBA Imposed on Employer
- Collective Bargaining, designed to stabilize the relations between labor and
management for the purpose of industrial peace, is a mutual responsibility
between labor and management. It is a legal obligation, so much so that Art.
249 (now 248) of the Labor Code makes it Unfair Labor Practice for an ER to
refuse to meet and convene promptly and expeditiously in good faith for the
purpose of negotiating an agreement for wages, hours of work, and other
terms of employment.
- The union complied with the jurisdictional preconditions of collective
bargaining, namely:
Possession of majority representation;
proof of majority representation; and
demand to bargain.
Wages and Employment Conditions
- The following are examples of matters considered as mandatory subjects of
bargaining:
- Wages and other types of compensation, including merit increases;
- Working hours and working days, including working shfts;
- Vacation and Holidays;
- Bonuses;
- Pension and retirement plans;
- Seniority;
- Transfer;
- Lay-offs;
- EE workloads;
Work rules and regulations;
Rent o f company houses;
Union security arrangements.
Arbitration, Strike-Vote, or No-Strike Clauses
- An ER may lawfully bargain to an impasse over his proposal that the CBA
include an arbitration clause or a no-strike clause which prohibits the EEs from
striking during the life of the agreement.
No-Lockout Clause; Clause fixing contractual term
- An ERs statutory duty to bargain requires him to negotiate over the unions
proposal that their agreement include a clause binding him not to lock out the
EEs. An ERs refusal to bargain over the duration of the contract to be entered
into is also an ULP.
Signing Bonus
- In contractual terms, a signing bonus is justified by and is the consideration
paid for the goodwill that existed in the negotiations that culminated in the
signing of a CBA. Without the goodwill, the payment of a signing bonus cannot
be justified and any order for such payment, to our mind, constitutes grave
abuse of discretion. This is more so where the signing bonus is in the not

insignificant total amount of P16 Million. (Manila Electric Co. vs. Hon. Sec. of
Labor and MEWA, GR No. 127598, January 27, 1999).
- A signing bonus is not a benefit which may be demanded under the law.
Rather, it is now claimed by petitioner (union) under the principle of
maintenance of existing benefits of the old CBA. However, as clearly
explained by the private respondent (employer), a signing bonus may not be
demanded as a matter of right. If it is not agreed upon by the parties or
unilaterally offered as an additional incentive by private respondent, the
condition awarding it must be duly satisfied. In the present case, the condition
sine qua non for its grantsa non strikewas not complied with. (Caltex
Refinery EEs Association vs. Brillantes and Caltex PH Inc., GR No. 123782,
September 16, 1997).
No duty to agree even on Mandatory Subjects
- Where the subject of the dispute is a mandatory bargaining subject, either
party may bargain to an impasse as long as he bargains in good faith. The
duty to bargain does not obligate a party to make concessions or yield a
position fairly held. Hence, an ERs adamant insistence on a bargaining
position is not necessarily a refusal to bargain in good faith. Even if the
negotiating party thumbs down the other partys proposals, there is no
violation of the duty to bargainhence, no ULPas long as the negative reply
can be explained in good faith.
Bargaining to the Point of Impasse: Not necessarily Bad Faith
- The adamant insistence on a bargaining position to the point where the
negotiations reach impasse does not establish bad faith. Neither can bad faith
be inferred from a partys insistence on the inclusion of a particular
substantive provision unless it concerns trivial matters or is obviously
intolerable.
- Bargaining to the point of deadlock may or may not amount to bargaining in
bad faith depending on the whether the insistence refers to a mandatory or a
non-mandatory subject of bargaining.
- Over a mandatory subject a party may insist on bargaining, even to the point
of deadlock, and his insistence will not be construed as bargaining in bad
faith. The reason is that the duty to bargain requires meeting and convening
on terms and conditions of employment but does not require assent to the
other partys proposals. Over a non-mandatory subject, on the other hand, a
party may not insist on bargaining to the point of impasse, otherwise his
insistence can be construed as bargaining in bad faith. It may be construed as
evasion of the duty to bargain; such evasion is ULP.
- The above rulings do not mean that the non-mandatory subjects cannot be
proposed or that the proponent cannot demand serious discussion of such
proposal. What the rulings forbid is the posture of making settlement on a
non-mandatory subject a precondition to the discussion or settlement of a
mandatory subject. If a non-mandatory subject is proposed and agreed upon,
the agreeing, by itself, is binding.
When is there deadlock or impasse
Whether the subject is mandatory or non-mandatory that caused a
bargaining deadlock, the union may file a notice or the ER a notice of lock out.
But what is a deadlock? When is there a bargaining deadlock?

A bargaining impasse over an issue exits where good faith bargaining on the
part of the parties has failed to resolve the issue and there are no definite
plans for further efforts to break the deadlock.
- Impasse presupposes a reasonable effort at good-faith bargaining which,
despite noble intentions, does not conclude in an agreement between the
parties.
- A substantial change in the bargaining position of one party is necessary to
break an existing impasse so as to render unlawful the other partys
subsequent refusal to meet and bargain. No valid bargaining impasse can be
said to occur when the bargaining deadlock is caused by the failure of one of
the parties to bargain in good faith.
Duty to Bargain when there is deadlock or impasse
- Deadlock does not mean the end of bargaining. It signals rather the need to
continue the bargaining with the assistance of a third party as conciliator or
arbitrator whose first aim is to get the parties back to the negotiating table
and help them craft a win-win solution.
- Although negotiations reach a deadlock, the ER must resume negotiations
where changed conditions indicate that an agreement may be possible. Even
after the union and the ER reach a genuine bargaining impasse, the ER
commits ULP by cancelling a scheduled bargain meeting because the union
filed ULP charges against the ER. However, an ER cannot be held to have
violated the obligation to bargain collectively with representatives of its EEs
where the negotiations with the union had resulted in a deadlock, causing the
ER to shut down the plant, and the union made no further negotiations until
after the plant had reopened with a new set of EEs operating under an
agreement with another labor organization.
Strike or Lockout in case of deadlock
- In fact, deadlock may occur anytime for various reasons such as
unacceptability of a proposal or counter-proposal, grandstanding of a
negotiator, autocratic or arrogant stance, or imprecise wording of a
stipulation.
- The law (Art. 263) recognizes bargaining deadlock as a valid reason to declare
a strike or lockout. Strike/Lockout presents a major deviation from the
preferred smooth route of bargaining. At this point of the bargaining scenario,
strike or lockout is supposed to be method of resolving an impasse, a device
to constrain the parties to end an impasse and go back to the negotiation
table. But a strike/lockout, while meant to be a solution, frequently becomes a
problem in itself.
- May a bargaining deadlock be resolved through arbitration by a Labor Arbiter?
In the case of Manila Central Line Corp. vs. Manila Central Line Free Workers
Union-NFL, GR No. 109383, June 15, 1998: After the NCMB failed to resolve the
bargaining deadlock between the parties, the union filed a petition for
compulsory arbitration in the Arbitration Branch of the NLRC. Petitioner (ER)
joined the petition and the case was submitted for decision. The SC held that
although the unions petition was for compulsory arbitration, the subsequent
agreement of petitioner to submit the matter for the arbitration in effect made
the arbitration a voluntary one. The essence of voluntary arbitration is that it
is the agreement of the parties, rather than compulsion of law, that a matter
is submitted for arbitration.

It does not matter that the person chosen as arbitrator is a labor arbiter who,
under Art. 217 of the LC, is charged with the compulsory arbitration of certain
labor cases. There is nothing in the law that prohibits these labor arbiters from
also acting as voluntary arbitrators as long as the parties agree to have him
hear and decide their dispute.
When can bargaining in bad faith occur?
- Bargaining in bad faith is considered ULP.
- If one will be charged with bargaining in bad faith, it should be raised while
the bargaining is in progress.
- If filed after the bargaining and the CBA has been executed voluntarily by
the parties, it is too late and untenable.
- Wage increase was asked by petitioner labor union which was denied by the
respondent. SC said that the union could have refused to bargain and entered
into a CBA when refused by the respondent. The firm stand of the respondent
against the proposal did not mean that it was bargaining in bad faith since
they had the right to insist on their position to the point of stalemate. Petioner
only realized the importance of their proposal of wage increase when the
wage orders were issued which was after the CBA has been executed by both
parties. The charge of bad faith bargaining on the part of the private
respondent was nothing but a belated reaction to the implementation of the
wage orders that private respondent made in accordance with law.
- With the execution of the CBA, bad faith bargaining 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. The CBA
is proof enough that private respondent exerted reasonable effort of good
faith bargaining.
- National Labor Relations Board of US reported that lack of good faith is
indicated a) where the employer engages in unfair labor practices while
bargaining with the union, b) where it engages in dilatory tactics during
negotiations, or c) where it institutes a wage cut by unilateral action and
without consulting the majority representative.
- If employer is motivated by a desire to gain time so as to be able to
undermine the union.
- When an employer imposed a 7-month bargaining hiatus because of the
unavailability of its negotiators.
- Where the employer postponed several meetings and made no attempt to
reach an agreement when meetings took place.
- Where the employers negotiator frequently interrupted bargaining sessions
with time-consuming discussions, and no new areas of agreement were
reached in spite of some counter proposals by the union and its oftenindicated willingness to listen to other offers by the employer.
- When employer subsequently retreated from previously agreed items.
- Where the employer pursued a pattern of tactics designed to delay
negotiations as long as possible to make it impossible for the union to reach a
collective bargaining agreement without virtually surrendering its right to
represent the employees in disputes over working conditions.
- To make it appear to the employees that they would be worse off with a union
representative and a collective bargaining agreement than if they had neither.
- Where an employer refused to bind himself contractually as to wage rates,
hours of work, holidays, vacations and bonuses, insisting upon the right to

grant such conditions of employment as gratuities, and rejected a clause

against lockouts. The employer cannot insist upon withdrawing these matters
from the sphere of collective bargaining nor can he insist upon reserving to
himself the right to alter, at his discretion, existing practices eth respect to
these matters for collective bargaining.
- An unwarranted delay in the negotiations may be evidence by bad faith on the
part of the employer. However, an employer has been held not guilty of bad
faith for failing to complete a collective bargaining contract during a 3-year
period where many conferences had been held during the period, even though
the employer had insisted on a no-strike clause and had raised wages during
negotiations for purpose of meeting competition.
- When no representative of the employer is available for conferences with the
union at reasonable time and place.
- When in the midst of the bargaining negotiations, without leaving anyone with
authority to continue the negations, employer leaves the country.
( Jurisprudence)
- When after one month of unions submission of proposals to employer, he has
not made any counter proposal.
Surface bargaining
- means a sophisticated pretense in the form of apparent bargaining, does not
satisfy the statutory duty to bargain.
- Going through the motion of negotiating without any legal intent to reach an
agreement
- The duty is not merely meeting together or simply manifesting willingness to
talk but presupposes a desire to reach an ultimate agreement to enter
collective bargaining contract
- Employer cannot reject a unions acceptance of the employers counter offer
on the ground that the union had earlier rejected the offer
Gross violation of CBA
- Negotiations are over in this case and the collective contract is already in
place
- The violation must be gross in order to be considered ULP.
Ratification by CBA
- Mandatory
- Ratified by MAJORITY of all the workers in the bargaining unit and must carry
the sworn statement of the union secretary and attested by the union
president.
- If not signed by president or secretary, still VALID since signing is not a
requirement in ratification. It is only a formality.
- IRR requires: posing of the CBA in 2 conspicuous places for five days prior to
ratification in order to clearly inform the workers the provisions in the CBA.
- NONCOMPLIACE will render the CBA INEFFECTIVE.
- Unratified but implemented - members cannot later on insist that the CBA is
void since they already benefitted from it.
When is ratification not needed
- When product of arbitral award by appropriate government authority or by a
voluntary arbitrator.
- Still needs to be posted in 2 conspicuous places in order to inform the
employees of the awarded CBA, not to ratify.
- When not satisfied with the award, remedy is certiorari.

Labor Code did not specify which comes first between ratification and
execution. What is important is the ratification, not the sequence of steps.
- When CBA is ratified, the CBA is finalized and formal signing follows. The
parties indicate the date of execution and the effectivity date.
Registration of CBA
- Register with the DOLE Regional Office where the bargaining unit is registered
or where it principally operates within 30 calendar days form execution of
agreement.
- Multi-employer CBA shall be filed with the Bureau of Labor Relations.
- CBA is effective as long as it is signed by both parties. The certification of the
Bureau is not needed for it to be effective.
Requirements for Registration
- Original and 2 duplicate copies which must be certified under oath by
representative(s) of the employer(s) and labor union(s) concered:
- Collective bargaining agreement
- Statement that the CBA was posted in 2 conspicuous places for 5 days before
ratification.
- A statement that the CBA was ratified by majority of all the employees of a
bargaining unit.
- Incomplete documents or not verified under oath may be denied.
- If denied by Regional office, appeal to Bureau within 10 days or to the
Secretary if the denial is by the Bureau.
- no other document shall be required in registration
Automatic Renewal of CBA.
- Terms and condition of CBA continue to have full force and effect beyond the
stipulated term when no new agreement is executed by and between the
parties to avoid or prevent a situation were no CBA at all would govern bet ER
company and its EE
when a collective bargaining contract is entered into by the union with the
ER, even the non member employees are entitled to the benefits because to
accord it only to members without valid reason would constitute an undue
discrimination against non members).
Effectivity of a CBA.
- If CBA is the first ever in the bargaining unit the effectivity date is whatever
date the parties agree on. But when CBA is renegotiated to replace the
expired one and if renegotiation is finished and CBA is concluded the following
applies:
o Within 6 months retroacts to the day following expiry.
o Beyond 6 month does not automatically retroacts, the matter of
retroaction and the possible retroactive date are left to the parties.
- CBA arbitral awards granted after 6 mos from CBA expiration shall retroact to
the time agreed upon by ER and EE or their union, absent such agreement,
award shall retroact to the first day after 6 month period following the
expiration of the last day of CBA should there be one (Manila Electric case).

Duration or Life Span of CBA

- 5 years for the representation aspect (identity and majority status of the
union) and not more than 3 years for all other provisions (all other
provisions in the CBA econ and non econ other than rep).

Now does it follow that all renegotiated non representation provisions of CBA
should be for a term of 3 years? No, note from the SOLEs memo quoted with
approval from SC that it does not require either two or three year; rather, it
recognizes the primacy of mutual agreement between the parties.
Extention of effectivity of CBA when valid.
- When it is approved by the union in referendum (properly supervised by the
DOLE and within the authority of the interim board to administer the Cba and
operate the union) when it is acceptable to both parties and did not violate
the law.
- Art 254. No temporary or permanent injunction or restraining order in any
case involving or growing out of labor disputes shall be issued by any court or
other entiy, except as otherwise provided in Articles 218 and 264 of this code.
- Reason : Labor injunctions have the deceptive appeal of the quick and easy
solution, and theirin lies their danger, for disputes between workers and
employers, now often complicated by the internecine disputes among workers
themselves , are not always of comparable simplicity. Generally not proved to
be an effective means of settling labor disputes.
- Note: There is a case in the book Republic Flour Mill Workers Association vs
Reyes where the validity of the write of preliminary injunction was upheld by
the SC. The reason is that it is not a labor injunction that is provided by the
labor code. There was no labor dispute existing between the pet union and
resp AIA Flour Mills Inc. The injunction ordered by the judge was one in
pursuant to Rule 60 of ROC.
CONTRACT ADMINISTRATION AS PART OF THE DUTY TO BARGAIN
- The duty to bargain continues into the contract administration stage. In effect,
contract negotiations are the legislative process of collective bargaining; the
day-to-day working out of plant problems is its administrative or judicial
aspects.
LAW BETWEEN THE PARTIES
- The provision of the collective bargaining agreement must be respected since
it terms and conditions constitute the law between the parties. Those who
are entitled to its benefits can invoke its provisions. IN the event that an
obligation therein imposed is not fulfilled, the aggrieved party has the right to
go to court for redress.
provisions of the collective bargaining agreement (CBA), during its lifetime,
constitute the law between the parties
- nonfulfillment of the obligation gives the aggrieved party a right to go to court
for redress
- An employer, who unilaterally alters or changes a term or condition of
employment in the CBA, violates his duty to bargain collectively.
- The employer who denies the privileges and benefits of its drivers and helpers
by trying to pass them off as employees of its salesmen and propagandists
have failed to live up in good faith to the terms of its CBA and hence a serious
violation of the duty to bargain collectively and constituted unfair labor
practice.
- The CBA, during its lifetime, constitute the law between the parties and
cannot b impaired by subsequent rule of the Minister of Labor.
- Holy Cross of Davao College vs. Holy Cross of Davao Faculty UnionKAMAPI
G.R. No. 156098, June 27, 2005

Legaspi, a teacher in the petitioner school, requested for a study leave of 18

months with salary and allowance, a benefit provided in their 1997 CBA, but
was denied and only granted a 12-month study leave without pay. The school
reasoned that she was not entitled to such benefit under the schools Policy
Statement and Guidelines for Trips for professional Growth, issued in 1998.
Said policy would grant financial assistance only if the faculty member would
pursue a higher degree and not just a certificate as in the case of Ms. Legaspi.
The court ruled that Ms. Legaspi should not be barred from the benefits under
the CBA. Unilaterally imposed orders or rules qualifying the terms contained in
the agreement are subordinate to the CBA. Such rules are merely suppletory
and can neither contradict nor undermine the terms found in the CBA.
CBA, being a contract, the rules in the Civil Code on interpretation of contracts
should govern
if the terms of the contract are clear, the literal meaning of the stipulations
shall control, but if the words are contrary to the evident intention of the
parties, the latter shall prevail
any doubts or ambiguity in the contract shall be resolved under Art. 1702 of
the CC that: In case of doubt, all labor legislation and all labor contracts shall
be construed in favor of the safety and decent living for the laborer
an existing law enters into and forms part of a valid contract without the need
for the parties expressly making reference to it. Unless such law is clearly
excluded therefrom and granting such exclusion is allowed.
since the CBA is a joint and several contract entered into by the union, the
agent of the members, with an employer, a union member employed under
such agreement is bound by the provisions thereof
benefits of the contract extend even to non-member employees
managers are not allowed to unionize and thus cannot claim the benefits
contained in the CBA negotiated by the workers under them
managerial employees cannot likewise share in the concessions obtained by
the labor union through collective negotiation, unless there is an agreement to
the contrary
the employer is not prevented from granting benefits to managerial
employees equal to or higher than those given to union members

Employee Participation
1. The deliberations of the 1986 Constitutional Commission reveal that the intention
was to refer to participation in GRIEVANCE PROCEDURES and VOLUNTARY MODES of
setting disputes and not to formulation of corporate programs or policies.
2. Grievance procedures, conciliation proceedings, voluntary modes of settling disputes
and negotiations in free collective bargaining agreement.
3. Rights and benefits of worker
4. The Supreme Court declared in the case of PAL vs NLRC that employees possess the
right to participate in the deliberation of matters which may affect their rights and
formulation of policies relative thereto. One such matter is the formulation of a
CODE OF DISCIPLINE.
5. But does not grant management control
6. Collective Bargaining is just one of the forms of employee participation. The real aim
of collective bargaining is employee participation in whatever form it may appear--bargaining or no bargaining, union or no union.

Labor-management council (LMC)

- Can exist where there is no union or co-exist with a union.
- It can represent employees across the enterprise, present grievances
regardless of the grievant`s rank, and proffer proposals unhindered by
formalities.
- Can handle projects and programs whoever is the proponent, form
committees for myriad purposes, instill discipline and improve productivity.
2 kinds of LMC:
- Labor-management cooperation programs
- Labor management committee
- The common purpose is promotion of productivity and of industrial peace
through labor education.
- In organized establishments, the worker`s representatives to the council shall
be nominated by the exclusive bargaining representative.
- In establishments where no legitimate labor organization exists, the workers
representative shall be elected directly by the employees at large.
Collective Bargaining Unit
- CBU is that group of jobs and jobholders represented by the recognized or
certified union when it bargains with the employer.
- The group may comprise all the supervisors, or separately, all the rankand-file employees (nowdays called the associates) in the company.
- If a single unit (only one for all supervisors or only one for all rank-and-file) is
not feasible,the law allows subgroups as bargaining units, provided only that
each sub-group is appropriate.
- It is appropriate if its members share substantially common concerns and
interests.
- Bargaining union has to be the majority union, the one where majority of the
CBU members belong. The majority status is determined through a union
selection process.
- representative union, bargaining union, majority union, bargaining
agent and bargaining representative are one and the same. It refers to the
CBU in bargaining or dealing with the employer.
- The basic test of a bargaining unit`s acceptability (or appropriateness) is
whether it will best assure to all employees the exercise of their collective
bargaining rights. Industrial experience indicates that the most efficacious
bargaining unit is one which is comprised of constituents enjoying a
community of interest.
- In making judgments about community of interest in theses different
settings, the board will look to such factors as:
Similarity I the scale and manner of determining earnings
Similarity in employment benefits, hours of work and other terms and
conditions of employment
Similarity in the kinds of work performed
Similarity in the qualifications, skills and training of the employees
Frequency of contact or interchange among the employees
Geographic proximity
Continuity of integration of production processes
Common supervision and determination of labor-relations policy
History of collective bargaining
Desires of the affected employees

Extent of union organization

Geographical location can be completely disregarded if the communal
or mutual interests of the employees are not sacrificed.
In the case of UP vs. Calleja- Ferrer, the court ruled that the distance
among the three plants is not productive of insurmountable difficulties
in the administration of union affairs.
Neither are there Regional differences that are likely to impede the
operations of a single bargaining representative.
EXCLUSION OF CONFIDENTIAL EMPLOYEES
- All these employees, with the exception of the service engineers and the sales
force personnel, are CONFIDENTIAL EMPLOYEES. In their 5 previous CBAs
between PIDI and PEO-FFW explicitly considered them as confidential
employees. By the very nature of their functions, THEY ASSIST AND ACT IN A
CONFIDENTIAL CAPACITY TO, OR HAVE ACCESS TO CONFIDENTIAL MATTERS
OF, PERSONS WHO EXERCISE MANAGERIAL FUNCTIONS IN THE FIELD OF
LABOR RELATIONS.
TEMPORARY OR PART-TIME EMPLOYEES
- They are excluded from bargaining unit.
- FACTOR TO DETERMINE A PART TIME EMPLOYEE: the reasonable likelihood that
the temporary or part-time employees will eventually become adequately
identified in employment with other members of the bargaining unit.
SEASONAL EMPLOYEES
- Full time seasonal employees who have reasonable expectation of substantial
employment from year to year held INCLUDIBLE IN THE UNIT, but part-time
seasonal employees have INSUFFICIENT COMMON INTEREST with the full time
to be INCLUDED IN THE SAME BARGAINING UNIT.
- RETAIL STORES: part-time with 4 hours or more/ week for the last quarter
before eligibility date INCLUDIBLE IN THE UNIT
- CASUAL employees are excluded, but if working with an employer who
operates a referral system for unskilled labor have been held an appropriate
unit.
PROBATIONARY EMPLOYEES
- the classification as beginner, trainer or probationary employee, and the
contemplation of permanent tenure subject to satisfactory completion of initial
trial period, are insufficient to warrant such employees exclusion from a
bargaining unit.
Globe Doctrine
- desires of the employees are relevant to the determination of the appropriate
bargaining unit. It is inherent in the basic right to self organization, but this is
not a controlling factor, it is a factor which would be taken into consideration
in reaching a decision.

Certification Election

Direct Certification No Longer Allowed

- even in case where a union has filed a petition for certification election
the direct certification originally allowed under Art.257 of LC has apparently been
discontinued as a method of selecting the exclusive bargaining agent of the workers.

NOTE: (This amendment affirms the superiority of the certification election over the
direct certification which is no longer available now under the change in said
provision.
Who files petition for certification election?
- By a registered union or by an employer
- Any legitimate labor organization, including a national union or federation that
has issued a charter certificate to its local/chapter or the local/chapter itself
- Employer is not considered as a party, thus, cannot oppose a petition for
certification election. Employers participation is limited only to:
Being notified or informed of petition of such nature; and
Submitting the list of employees during the pre-election
conference
o Any employee has the right to intervene
Intervention, Who will file?
- Other unions which are interested in joining a certification election
- Whether petitioner or intervenor, the union has to be an LLO
- A union that has no legal personality to file a petition for CE has no personality
either to file a petition-in-intervention.
Where to file the PCE?
- with the Regional Office which issued the petitioning unions certificate of
registration or certificate of creation of chartered local
Who will hear the petition?
- Med-Arbiter
What if there are two or more petitions involving the same bargaining unit
are filed in one Regional Office?
- shall be automatically consolidated
- Note: If filed in different regional offices, the regional office in which the
petition was first filed shall exclude the others
When to file the PCE?
- Has CBA- only within the last 60 days of the 5th year of the CBA
- No CBA- anytime outside the 12-month bar
Preliminary conference
- to be held within 10 working days from the Mediator-Abiters receipt of
petition
- meant to determine whether the PCE should be processed further or be
dismissed

Hearings and Pleadings

- conduct of hearing cannot exceed 15 days from the date of the scheduled
preliminary conference
no extensions of time
failure to appear is deemed waiver of right to be heard
- within 10 days from last hearing med arbiter will issue order granting or
denying the petition
Denial of PCE
o Non-appearance
non appearance of the petitioner for two consecutive scheduled
conferences before the Mediator-Arbiter despite notice

absence of employment relationship (between all the members of

the petitioning union and the establishment where the proposed
bargaining unit is sought to be represented
the election bar- the 12-month bar
filing of a petition within one year from the date of recording of
the voluntary recognition, or within the same period from a
valid certification, consent or run-off election where no appeal
on the results of the certification, consent or run-off election is
pending.
election bar- negotiation or deadlock
where a duly certified union has commenced and sustained
negotiations with the employer in accordance with Art. 260 of
the LC within the 1-year period referred to in Section 14 (d) of
the Implementing Rules or where there exists a bargaining
deadlock which has been submitted to conciliation or arbitration
or has become the subject of a valid notice of strike or lockout
where an incumbent or certified bargaining agent is a party.

Deadlock Bar rule- a petition for certification election can only be entertained if there is
no pending bargaining deadlock submitted to conciliation or arbitration or had become the
subject of a valid notice of strike or lockout.
An artificial deadlock a deadlock prearranged or preserved by collusion of the employer
and the majority union-is deception of the workers, hence, not a barrier to a petition for C. E.

Election Bar- Lack of support

- in an organized establishment, the failure to submit the 25% signature
requirement to support the filing of the petition for certification of election.
Two different 60-day periods
- The freedom period under Articles 264 and 267 is different from and ought
not to be mistaken for the other 60-day period mentioned in Art. 263. The
latter speaks of the proper time to propose modifications to the existing CBA.
It is the notice period for renegotiation of an expiring CBA. It is a notice from
either or both the management and the bargaining union.
- This 60-day period under Art. 263 does not and cannot refer to the
representative status of the incumbent union since the acquisition or loss of
representative status is to be resolved through a certification election (CE),
and not through negotiation with the ER. Therefore, the 60-day period under
Art.263 refers to modifying or renegotiating the CBA provisions other than
representational, also called economic provisions. It occurs towards the end
of the 2nd or 3rd year of the CBA. ITt is an economic event between the
negotiating union and the management.
- The freedom period, in contrast, is the last 60 days of the CBAs 5 th year of the
representational aspect. The freedom period is a political event involving only
the rival unions and the voters-EEs.
Registered CBA
- To bar a certification election, it is no longer necessary that the CBA be
verified; it is enough that it is registered in accordance with Art. 236.
Contract-bar rule applied: Extended CBA under deadlock

No petition for certification election may be filed before the onset of the
freedom period nor after such period. The old CBA is extended until a new one
is signed.
- In the case of National Congress of Unions in the Sugar Industry of the
Philippines vs. Ferrer-Calleja, et.al., GR No. 89609, January 27, 1992, the court
held: Sec. 6, Rule V (now Sec. 3, Rule XI), Book V of the Implementing Rules
provides that a petition for CE can only be entertained within the 60 dys
period to the expiry date of an existing CBA. Otherwise put, the rule prohibits
to the petition for CE during the existence of a CBA except within the freedom
period, when the said agreement is about to expire. The petitioners
contention that the expiration of the CBA in 1987 private respondent NFSWFGT-KMU and the company had not concluded a new CBA, does not render the
contract-bar rule inapplicable. This so because Art. 253 of the LC provides
that: it shall be the duty of both parties to keep the status quo and to
continue in full force and effect the terms and conditions of the existing
agreement during the 60-day period and/or until a new agreement is reached
by the parties. Despite the lapse of the formal effectively of the CBA, the law
still considers the same as continuing in full force and effect until a new one is
executed. Thus, the contract bar rule still applies.
- Even if the existing CBA is registered surreptitiously, as alleged by the
petitioner union, but no evidence is presented proving the alleged
surreptitious registration, the petition for CE cannot be granted. The contractbar rule applies.
Contract-bar rule NOT applied: Defective CBA
- A careful consideration of the facts culled from the records of this case,
especially the allegations of petitioner itself yields the conclusion that the CBA
in question is indeed defective, hence unproductive of the legal effects
attributed to it
- To bar a CE, the CBA must be adequate in that it comprises substantial terms
and conditions of employment.
CBA signed before or within freedom period
- To renegotiate the CBA before or during the freedom period is expressly
allowed by D.O. No. 40-03. Its Sec. 14, Rule VII states that the Med-Arbiter
may dismiss the petition for CE on any of the following grounds xxx (b) the
petition was filed before or after the freedom period duly registered CBA;
provided that the 60-day period based on the original CBA shall not be
affected by any amendment, extension or renewal of the CBA. Even clearer
and more categorical is Sec. 24 (renumbered as 25) of the same Rule VIII,
which says: Effect of Early Agreement: The representation case shall not
be adversely affected by a CBA registered before or during the last 60 days of
a subsisting agreement or during the pendency of the representation case.
What would be the effect on the renegotiated CBA if a union other than the one that
executed it should win the CE?
- In a pertinent case, it was held that the union thus certified would have to
respect the contract, but that it may bargain with the management to shorten
the life of the contract if it is too long.
- When a CBA is entered into at the time when the petition for CE had already
been filed by a union and was then pending resolution, the said CBA cannot
be deemed permanent, precluding the commencement of the negotiations by

another union with the management. In the meantime, however, so as not to

deprive the workers of the benefits of the said agreement, it shall be
recognized and given effect on a temporary basis, subject to the results of the
CE. The agreement may be continued in force if the union that negotiated it is
certified again as the exclusive bargaining representative or may be rejected
and replaced in the event the rival union emerges as the winner.
CBA Signed despite suspension order may be declared invalid
- Also in 1989, the Court ruled that a CBA signed while there was a pending
representation case was invalid. The court said: basic to the contract-bar rule
is the proposition that the delay of the right to select to representatives can
be justified only where stability is deemed paramount. Excepted from the
contract-bar rule are certain types where the identity of the representatives is
in doubt. Any stability derived from such contracts must be subordinated to
the EEs freedom of choice because it does not establish the type of industrial
peace contemplated by the law. (PH Association of Free Labor Unions vs.
Estrella, GR No. 45323, February 20, 1989)
- Again in a 2005 decision, the Court invalidated the hasty recognition of a
union and the signing of a CBA with that union where such acts were done
while there was a pending petition for CE by another union.
Election Bar: Lack of Support
- The 8th reason for possible dismissal of a PCE (petition for Certification
Election) is the lack of support to the petition. Art. 267 requires that the PCE in
an organized establishment which may be filed within the freedom period
should be supported by at least 25% of the bargaining unit.
- In a company still unorganized the worker should find it easy to organize, but
once a union has established itself as the EEs representative, it should not be
so easy for another union to replace the incumbent. Trying to do so will disturb
the peace in the enterprise. To justify the disturbance, it must appear that a
sizeable portion of the EEsat least 25%-- desires to have a new union.
Without this minimum support the challenge to the incumbent looks like a
nuisance.
Election despite lack of 25% support
- Compliance with the said requirement need not even be established with
absolute certainty. The Court has consistently ruled that even conceding that
the statutory requirement of 30% (now 25%) of the labor force asking for a CE
had not been strictly complied with, the director (now the Med-Arbiter) is still
empowered to order that it be held precisely for the purpose of ascertaining
which of the contending labor organizations shall be the exclusive collective
bargaining agent. (Atlas Free Workers Union [AFWU-PSSLU] Local vs. Noriel,
GR No. L-51905, May 26 1981)
- The requirement then is relevant only when it becomes mandatory to conduct
a certification election. In all other instances, the discretion, according to
rulings of this Tribunal, ought to be ordinarily exercised in favor of a petition
for certification. (National Mines and Allied Workers Union [NAMAWU-UIF] vs.
Luna, et. Al.,GR No. L-46722, June 15, 1978)
Prohibited Ground for the Denial/Suspension of the petition
- The inclusion as union members of EEs outside the bargaining unit shall not
be a ground for the cancellation of the registration of the union.
Validity of registration

All issues pertaining to the validity of the petitioning unions certificate of

registration or its legal personality as a labor organization, validity of
registration and execution of CBAs shall be heard and resolved by the Reg. Dir.
In an independent petition for cancellation of its registration and not by
the Mediator-Arbitrator in the petition for certification election, unless the
petitioning union is not listed in the Departments roster of LLOs or an existing
CBA is not registred.
Authority to decide existence of ER-EE relationship; Med-Arbiters order appealable to
secretary
- All issues pertaining to the existence of the ER-EE relationship or to the
eligibility of a union membership shall be resolved in the order or decision
granting or denying the petition for CE. IOWs, those issues do not stall the PCE
and they are not grounds for dismissing a PCE.
- As the authority to determine the ER-EE relationship is necessary and
indispensable in the exercise of jurisdiction by the Med-Arbiter, his finding
thereon may only be reviewed and reversed by the SOLE who exercises
appellate jurisdiction under Art. 259 (now 271) of the LC as amended.
- Similarly, incidental to the power of the Med-Arbiter to hear and decide cases
is the power to determine eligibility of voters.
Employer a Bystander; Cannot Oppose PCE
- In petitions for certification election, has the ER been transformed from being
an intruder to being a party?
- The Supreme Court maintains in recent decisions that ERs are mere
bystanders in CE proceedings.
- The ERs standing in representation disputes, such as petition for CE, has been
definitely defined by law R.A. No. 9481 of 2007 inserts an amendatory article
that states:
- Art. 258-A. Employer as Bystanders.In all cases, whether the petition for
certification election is filed by the ER or LLO, the ER shall not be considered a
party thereto with a concomitant right to oppose a petition for certification
election. Xxxxxxxx
Action on the Petition; Approval
- If there exists no ground to dismiss or otherwise deny the petition for CE the
Med-Arbiter has to grant it.
Appeal of Order granting or Denying Petition
- The only order that cannot be appealed is an order granting the conduct of a
certification election in an UNORGANIZED establishment. Any issue arising
therefrom may be raised by means of protest on the conduct and results of
the CE.
- The order granting the conduct of a CE in an ORGANIZED establishment and
the decision dismissing or denying the petition, whether in organized or
unorganized establishment, may be appealed to the Office of the Secretary
within 10 days from receipt thereof. In short, denial of any petition for CE
is always appealable, but never appealable is the approval of any
PCE in an enterprise still ununionized. The reason is sound and
simple: the law wants to unionize the ununionized.
- The appeal shall be verified under oath & shall consist of a memorandum of
appeal specifically stating the grounds relied upon by the appellant with the
supporting arguments and evidence. The memorandum of appeal shall be
filed in the Reg. Office where the petition originated, copy furnished the

contending unions and the ER, as the case may be. W/in 24 hours from receipt
of the appeal, the Reg. Dir. shall cause the transmittal thereof together with
the entire records of the case to the Office of the Secretary.
- Where no appeal is filed within the 10 day period, the med-arbiter shall enter
the finality of the order/decision in the records of the case and cause the
transmittal of the records of the petition to the Reg. Director.
- A reply to the appeal may be filed by any party to the petition within 10 days
from receipt of the memorandum of appeal. The reply shall be filed directly
with the Office of the Secretary.
- The Secretary shall become final and executor after 10 days from receipt
thereof by the parties. No MR of the decision shall be entertained. Within 48
hours from notice of receipt of decision by the parties and finality of the
decision, the entire records of the case shall be remanded to the Reg. Office of
origin for implementation. Implementation of the decision shall not be stayed
unless restrained by the appropriate court.
May a CE be held legally upon petition of Union B while a petition for CE earlier filed
by Union A is pending appeal at the Office of the Secretary?
- NO, the appeal should be resolved first. (Samahan ng mga Manggagawa sa
Filsystems vs. Sec. of Labor, GR No. 128067, June 5, 1998)
Conducting the CE
- Raffle of the case. - Within twenty-four (24) hours from receipt of the notice of
entry of final judgment granting the conduct of a certification election, the
Regional Director shall cause the raffle of the case to an Election Officer who
shall have control of the pre-election conference and election proceedings
- Pre-election conference. - Within twenty-four (24) hours from receipt of the
assignment for the conduct of a certification election, the Election Officer shall
cause the issuance of notice of pre-election conference upon the contending
unions and the employer, which shall be scheduled within ten (10) days from
receipt of the assignment.
The pre-election conference shall set the mechanics for the
election and shall determine, among others, the following:
(a) date, time and place of the election, which shall not be later
than forty-five (45) days from the date of the first pre-election
conference, and shall be on a regular working day and within
the employer's premises, unless circumstances require
otherwise;
(b) list of eligible and challenged voters
(c) number and location of polling places or booths and the
number of ballots to be prepared with appropriate translations,
if necessary;
(d) name of watchers or representatives and their alternates for
each of the parties during election;
(e) mechanics and guidelines of the election.
Waiver of right to be heard. - Failure of any party to appear
during the pre-election conference despite notice shall be
considered as a waiver to be present and to question or object
to any of the agreements reached in said pre-election
conference. Nothing herein, however, shall deprive the nonappearing party or the employer of its right to be furnished

notices of subsequent pre-election conferences and to attend

the same.
Minutes of pre-election conference. - The Election Officer shall
keep the minutes of matters raised and agreed upon during the
pre-election conference. The parties shall acknowledge the
completeness and correctness of the entries in the minutes by
affixing their signatures thereon. Where any of the parties
refuse to sign the minutes, the Election Officer shall note such
fact in the minutes, including the reason for refusal to sign the
same. In all cases, the parties shall be furnished a copy of the
minutes.
The pre-election conference shall be completed within thirty
(30) days from the date of the first hearing.

Posting of Notices.- The Election Officer shall cause the posting of notice of
election at least ten (10) days before the actual date of the election in two (2)
most conspicuous places in the company premises. The notice shall contain:
(a) the date and time of the election;
(b) names of all contending unions;
(c) the description of the bargaining unit and the list of eligible and
challenged voters.
The posting of the notice of election, the information required to be
included therein and the duration of posting cannot be waived by the
contending unions or the employer.
Conducting the CE: the Voters
- Section 5. Qualification of voters; inclusion-exclusion. - All employees who are
members of the appropriate bargaining unit sought to be represented by the
petitioner at the time of the issuance of the order granting the conduct of a
certification election shall be eligible to vote.
- The list of voters should be based on the ER-certified list of EEs in the CBU or
payrolls. If the ER does not submit the list or payrolls, the union may submit
its own list.
- Even the list of EEs submitted to the SSS may be used as a basis to comprise
the list of voters for the CE. IT should ideally be the payroll should have been
used for the purpose of the election. However, the unjustified refusal of a
company to submit the payroll in its custody, despite efforts to make it
produce it, compelled resort to SSS list as the next best source of information.
After all, the SSS list is a public record whose regularity is presumed.
(Samahan ng manggagawa sa Pacific Plastic vs. Hon. Laguesma, GR No.
111245, January 31, 1997).
- Only the EEs who are directly employed by the ER and working along then
activities to which the ER is engaged and linked by ER-EE relationship are
qualified to participate in the CE, irrespective of the period of employment.
(Eastland Mfg. Corporation vs. Noriel, 111 SCRA 674).\In case of disagreement
over the voters list or over the eligibility of voters, all contested voters shall
be allowed to vote. But their votes shall be segregated and sealed in
individual envelopes n accordance with Secs. 10 and 11 of Rule 9 (IX), D.O.
No. 40-03.

Qualification of voters; inclusion-exclusio

- ALL employees who are members of the appropriate bargaining unit sought to
be represented by the petitioner at the time of the issuance of the order
granting the conduct of a certification election shall be eligible to vote
- The list of voters should be based on the employer-certified list of employees
in the CBU or payrolls. If the employer does not submit the list or payrolls, the
union may submit its own list. Even the list of employees submitted to the SSS
may be used as basis to comprise the list of voters for the C.E.
- Only the employees who are directly employed by the employer and working
along the activities to which the employer is engaged and linked by employeremployee relationship are qualified to participate in the certification election,
irrespective of the period of their employment.
Employees of an independent contractor who undertakes to do a piece work
for his account and responsibility, with minimum interference on the part of
the other contracting party, not being laborers or employees of the latter, are
not qualified to participate therein
- In case of a disagreement over the voters list or over the eligibility of voters,
all contested voters shall be allowed to vote. But their votes shall be
segregated and sealed in individual envelopes.
Dismissed Employee
- An employee who has been dismissed from work but has contested the
legality of the dismissal in a forum of appropriate jurisdiction at the time of
the issuance of the order for the conduct of a certification election shall be
considered a qualified voter, UNLESS his/ her dismissal was declared valid in a
final judgment at the time of the conduct of the certification election.
Probationary Employees
- In a certification election, all rank and file employees in the appropriate
bargaining unit are entitled to vote.
- Collective bargaining covers all aspects of the employment relation and the
resultant CBA negotiated by the certified union binds all the employees in the
bargaining unit. Hence, all rank-and-file employees, probationary or
permanent, have a substantial interest in the selection of the bargaining
representative. The Code makes no distinction as to their employment status
as basis of eligibility in supporting the petition for certification election. All
they need to be eligible to support the petition is to belong to the bargaining
unit.
- In the CE, all members of the unit, whether union members or not, have the
right to vote. Union membership is not a prerequisite. If majority of the unit
members do not want a union, as expressed in the CE, such majority decision
must be respected.
- The respondents argument that the petitiners are disqualified to vote
because the are not constituted into a duty organized labor union-members
of the INK which prohibits its followers, on the religious grounds, from joining
or forming any labor organization- and hence, not one of the unions which
vied certification as sole and exclusive bargaining representative, is specious
(especially misleadingly attractive). Neither law, administrative rule nor
jurisprudence requires that only employees affiliated with any labor
organization may take part in a certification election. On the contrary, the
plainly discernible intendment of the law is to grant the right to vote to all

bona fide employees in the bargaining unit, whether they are members of a
labor organization or not.
Conducting the CE: The Voting
- The voting shall open on the date and time agreed upon in the pre-election
conference.
Secrecy and sanctity of the ballot
- To ensure secrecy of the ballot, the Election Officer, together with the
authorized representatives of the contending unions and the employer, shall,
before the start of the actual voting, inspect the polling place, the ballot boxes
and the polling booths.
Preparation of ballot
- The election officer shall prepare the ballots in English and Filipino or the local
dialect, corresponding to the number of votes and a reasonable number of
extra ballots.
- All ballots shall be signed at the back by the Election Officer and authorized
representative of each of the contending unions. A party who refuses or fails
to sign the ballots waives its right to do so and the Election Officer shall enter
the fact of refusal and the reason therefor in the records of the case.
Marking of Votes
- The voter must put a cross(x) or check( ) mark in the square opposite the
name of the union of his choice or No Union if he does not want to be
represented by any union.
- If a ballot is torn, defaced or left unfilled in such a manner as to create doubt
or confusion or to identify the voter, it shall be considered spoiled. If the voter
inadvertently spoils a ballot, he/she shall return it to the Election officer who
shall destroy it and give him/her another ballot.
Procedure in the challenge of votes
- The ballot of the voter who has been properly challenged during the preelection conference, shall be placed in an envelope which shall be sealed by
the election officer in the presence of the voter and the representatives if the
contending unions. The Election officer shall indicate on the envelope the
voters name, the union challenging the voter, and the ground for the
challenge. The sealed envelope shall then be signed by the Election Officer
and the representatives if the contending unions. The Election Officer shall
note all challenges in the minutes of the election proceedings and shall have
custody if all envelopes containing the challenged votes. The envelopes shall
be opened and the question of eligibility shall be passed upon by the
Mediator-Arbiter only if the number of segregated votes will materially alter
the results of the election.
On-the-spot Questions
- The election Officer shall rule on any question relating to and raised during
the conduct of the election. In no case, however, shall the election officer
rule on any of the grounds for challenge specified in the immediately
preceding section.
Protest; when Perfected
- Any party-in-interest may file a protest based on the conduct or mechanics of
the election. Such protest shall be recorded in the minutes of the election
proceedings. Protest not so raised are deemed waived.
- The protesting party must formalize its protest with the Med-arbiter, with
specific grounds, arguments and evidence, within five (5) days after the close

of the election proceedings. If not recorded in the minutes and formalized

within the prescribed period, the protest shall be deemed dropped.
U.L.P. in Relation to Election
- It is unfair labor practice for the company to suspend the workers on the
ground of abandonment of work on the day on which the pre-election
conference had been scheduled. It is employees right to hold a certification
election, the exercise of which is their sole prerogative. A company commits
unfair labor practice where it issued suspension and termination orders while
the employees are in the midst of a certification election preliminary to a
labor-management conference to normalize employer-employee relations.
Conducting the CE: Canvassing of Votes
o The voting shall close in the date and time agreed upon in the pre-election
conference. Canvassing shall immediately follow.
o The votes shall be counted and tabulated by the Election Officer in the
presence of the representatives if the contending unions. Upon completion of
the canvass, the Election Officer shall give each representative a copy of the
minutes of the election proceedings and results of the election. The ballots
and the tally sheets shall be sealed in an envelope and signed by the Election
Officer and the representatives of the contending unions and transmitted to
the Med-Arbiter, together with the minutes and results of the election, within
24 hours from the completion of the canvass.
o Where the election is conducted in more than one region, the consolidation of
results shall be made within 15 days from the conduct thereof.
o Failure of the representative of the contending unions to appear during the
election proceedings and canvass of votes shall be considered a waiver of the
right to be present and to question the conduct thereof.
Who Wins in the C.E.: Proclamation and Certification
- In order to have a valid election, at least, a majority of all eligible voters in the
unit must have cast their votes.
- Within 24 hours from final canvass the votes, there being a valid election; the
Election Officers shall transmit the records of the case to the Med-Arbiter who
shall, within the same period from receipt of the minutes and results of
election, issue an order proclaiming the results of the election and certifying
the union which obtained a majority of the valid votes cast as the sole and
exclusive bargaining agent in the subject bargaining unit, under any of the
following conditions
- No protest was filed or, even if one was filed, the same was not perfected
within the five-day period for perfection of the protest
No challenge or eligibility issue was raised or, even if one was raised, the
resolution of the same will not materially change the results of the elections
- The winning union shall have the rights, privileges and obligation of a duly
certified collective agent from the time of certification is issued.
- Where majority of the valid notes cast results in No Union obtaining the
majority, the Med-Arbiter shall declare such fact in the order.
Failure of Election; Motion for a Remedial Election
- Where the number of votes cast in a certification or consent election is less
than the majority of the number of eligible voters and there are no material
challenged votes, the Election Officer shall declare a failure of election in the
minutes of the election proceedings.
Effect of failure of Election

A failure of election shall not bar the filling of a motion for the immediate
holding of another certification or consent election within 6 months from date
of declaration of failure of election.( Some practitioners call this a remedial
election.)
- Within 24 hours from receipt of the motion, the Election officers shall
immediately schedule the conduct of another certification or consent election
within 15 days from receipt of the motion and cause the posting of the notice
of certification election at least 10 days prior to the scheduled date of election
in 2 most conspicuous places in the establishment.
Run-off Election
- When an election which provides for 3 or more choices results in none of the
contending unions receiving a majority of the valid votes cast, and there
are no objections or challenges which if sustained can materially alter the
results, the Election Officer shall motu proprio conduct a run-off election
within10 days from the close of the election proceedings between the labor
unions receiving the two highest number of votes; provided, that the total
number of votes for all contending unions is at least 50% of the number of
votes cast.
- No Union shall not be a choice in the run-off election
- Notice of run-off elections shall be posted by the Election Officers at least 5
days before the actual date of run-off election.
Qualification of voters in the run-off election
- The same voters list used in the certification election shall be used in the runoff election. The ballots in the run-off election shall provide as choices the
unions receiving the highest and second highest number of votes cast. The
labor union receiving the greater number of valid votes shall be certified as
the winner.
- To summarize, a run-off election is proper if five concurrent conditions exist,
namely
A valid election took place because majority of the CBU
members vote
The election presented at least three choices, e.g. Union One,
Union Two, and No Union, meaning there are at least two
union candidates
Not one of the unions obtained the majority of the valid vote
The total number of votes for all the unions is at least 50% of
the votes cas
There is no unresolved challenge of voter or election proper
Appeal to Secretary as to Election Result
- The decision of the Med-Arbiter may be appealed to the Secretary within 10
days from receipt by the parties of a copy thereof.
- The appeal shall be under oath and shall consist of a memorandum of appeal,
specifically stating the grounds relied upon by the appellant with supporting
arguments and evidence.
- Where no appeal is filed within the 10 day period, the order/ decision shall
become final and executory and the Med-arbiter shall enter this fact into the
records of the case.
Where to Appeal
- The memorandum of appeal shall be filed in the regional office where the
petition originated, copy furnished the contending unions and the employer,

as the case may be. Within 24 hours from receipt of the appeal, the regional
directors shall cause the transmittal thereof together with the entire records of
the case to the office of the secretary.
Period to Reply
- A reply to the appeal may be filed by any party to the petition witin 10 days
from receipt of the memorandum of appeal. The reply shall be filed directly
with the Office of the Secretary.
- The Secretary shall have 15 days from receipt of the entire records of the
petition within which to decide the appeal. The decision of the Secretary shall
become final and executory after 10 days from receipt thereof by the parties.
No motion for reconsideration if the decision shall be entertained.(already
declared unconstitutional by SC because it violates the principle of exhaustion
of administrative remedies. Hence, you can file a motion for reconsideration)
Transmittal of records to the regional office
o Within 48 hours from notice of receipt of decision by the parties and finality of
the decision, the entire records of the case shall be remanded to the regional
office of origin for implementation. Implementation of the decision shall not be
stayed unless restrained by appropriate court.
Election Irregularities, Protest by Employer
o The manner in which the election was held could make the difference between
industrial strife and industrial harmony in the company. What an employer is
prohibited from doing is to interfere with the conduct of the certification
election for the purpose of influencing its outcome. But certainly an employer
has an abiding interest in seeing to it that the election is clean, peaceful,
orderly, and credible..xxxx this court invalidated a certification election upon
showing of disfranchisement, lack of secrecy in the voting and bribery.
Consent Election
o Voluntary recognition and certification election, two of the methods to
determine which union will bargain with the employer. The third and last
method is called consent election.
o Certification election is ordered by the department while a consent election is
voluntarily agreed by the parties, with or without the intervention of the
department.
o *Two or more unions are involved in a consent election. And like certification
election, consent election may take place in an unorganized or organized
establishment.
Effect of Consent Election
- Where a petition for certification election had been filed, and upon the
intercession of the Med-Arbiter, the parties agreed to hold a consent election,
the results shall constitute a bar to the holding of a certification election for 1
year from the holding of such election. Where an appel has been filed from the
results of the consent election, the running of the 1 year period shall be
suspended until the decision on appeal has become final and executory.
- Where no petition for certification election was filed but the parties
themselves agreed to hold a consent election.
The winner as sole and exclusive representative
- The term exclusive means that the employer must treat with the
representative to the exclusion of all other claiming bargaining agents.
- When the certified union files a claim against the employer and the case is
decided in due course, the decision binds even the minority union which,

therefore, is barred from filing another case for the same cause of action
against the same employer. The action is barred by the principle of res
judicata.
- However, although the union has every right to represent its members in the
negotiation regarding the terms and conditions of their employment, it
cannot negate their wishes on matters which are purely personal and
individual to them. When the company gave them the opportunity to choose,
and they voluntarily exercised their choice, their decision should be respected.
If the majority union neglects the interest of employees in the minority union, if the
duty of fair representation is violated, what can the minority do?
- The minority union, although a loser in the election, does not lose its
character as a lawful labor organization entitled to protection under Article
256 which makes it unlawful for any person to abridge the right to selforganization. Art. 266, despite presence of a bargaining agent, an individual
employee or group of employees shall have the right at any time to present
grievances to their employer. For negotiating and administering a CBA, the
majority union is therefore the sole and exclusive representative, but for nonCBA issues the minority union may act as a group of employees to present
grievances to the employer.
May a minority union charge the employer with U.L.P?
- The protection provided by Article 256 and the U.L.P. acts proscribed in
Articles 257-258 do not distinguish between bargaining agent or nonbargaining agent. What is being shielded from U.L.P. is the right to selforganization and not only the right to collectively bargain. It can even engage
in peaceful concerted activity. But it cannot resort to work stoppage or strike
because strike is reserved to an exclusive bargaining representative.
Is the Bargaining Union a Majority Union?
- The Bargaining union does not always comprise the numerical majority in
the bargaining unit. Article 267 requires, for a union to win in a C.E., only a
majority of the valid votes cast. The majority of the valid votes may be lesser
than the majority if the employees in the bargaining unit.