Labor 7

Page 1 of 42
Contents
1. Kinds of Union Security clauses ............................................................ 1
2. ULP in collective bargaining, instances ................................................... 3
3. Phil. V CA .......................................................................................... 4
4. T&H v Union ...................................................................................... 7
5. Manila v Mining corp ........................................................................... 9
6. FVC v sama-samang .......................................................................... 14
7. Strikes, picketing and lockouts ............................................................ 17
8. Club v Benjamin bautista .................................................................... 20
9. Law on termination/disciplinary cases; grounds for termination ................ 24
1. Kinds of Union Security clauses
UNION SECURITY CLAUSES. -- applied to and comprehends "closed shop," "union shop,"
"maintenance of membership," or any other form of agreement which imposes upon
employees the obligation to acquire or retain union membership as a condition affecting
employment. (PICOP Resources, Inc. (PRI) vs. Anacleto L. Taneca et. al., G.R. No. 160828,
09 August 2010).
3.1 General rule on coverage of union security clause:
All employees in the bargaining unit covered by a Union Shop Clause in their CBA with
management are subject to its terms.
Exception: However, under law and jurisprudence, the following kinds of employees are
exempted from its coverage, namely:
a) employees who at the time the union shop agreement takes effect are bona
fide members of a religious organization which prohibits its members from
joining labor unions on religious grounds (Elizalde Rope Workers case);
b) employees already in the service and already members of a union other than
the majority at the time the union shop agreement took effect (Art. 248 [e]);
c) confidential employees who are excluded from the rank and file bargaining
unit; and
d) employees excluded from the union shop by express terms of the agreement.
(Bank of the Philippine Islands vs. BPI Employees Union - Davao Chapter -
Page 1
Labrador Notes || Labor Review Case Digests and Concepts || Atty. Beceira-Cristobal
Chan| Davila| Degamo| Eusebio| Galang| Gealon| Mungcal| Muoz| Tan
Page 2 of 42
Federation of Unions in BPI Unibank, G.R. No. 164301, 10 August 2010; En

Banc.).
3.2 Kinds of union security clauses:
o Closed Shop. A form of union security whereby only union members can be hired and
the workers must remain union members as a condition of continued employment. (Juat vs.
Court of Industrial Relations, 122 Phil. 794, cited in Philippine Law Dictionary by Moreno,
2nd Edition.) It is one where no person may be employed in any or certain agreed
departments of the enterprise unless he or she is, becomes, and, for the duration of the
agreement, remains a member in good standing of a union entirely comprised of or of which
the employees in interest are a part. (PICOP Resources, Inc. (PRI) vs. Anacleto L. Taneca
et. al., G.R. No. 160828, 09 August 2010).
o Union Shop. There is union shop where an employer may hire new employees, but
once they become regular employees, they are required to join the union within a certain
period as a condition for their continued employment. (PICOP Resources, Inc. (PRI) vs.
Anacleto L. Taneca et. al., G.R. No. 160828, 09 August 2010).
o Modified Union Shop Agreement. -- A union shop agreement with a provision

exempting certain employee groups from its operation, such as old employees already with
the company at a designated date, key personnel, persons with religious scruples in joining
labor unions. (Ibid.)
o Maintenance of membership shop. -- There is maintenance of membership shop when

employees, who are union members as of the effective date of the agreement, or who
thereafter become members, must maintain union membership as a condition for continued
employment until they are promoted or transferred out of the bargaining unit, or the
agreement is terminated. (PICOP Resources, Inc. (PRI) vs. Anacleto L. Taneca et. al., G.R.
No. 160828, 09 August 2010; see also: Bank of Philippine Islands vs. BPI Employees Union
Davao Chapter Federation of Unions in BPI Unibank, G.R, No. 164301, 10 August 2010,
En Banc.)
o Open shop -- An arrangement on recruitment whereby an employer may hire any

employee, union member or not, but the new employee must join the union within a
specified time and remain a member in good standing. (LABSTAT Updates of the
Department of Labor and Employment, Vol. 1 No. 12, August 1997).
o Agency shop -- An arrangement whereby non-members of the contracting union must

pay the union a sum equal to union dues known as agency fees for the benefits they
received as a consequence of the bargaining negotiations effected through the efforts of the
union. (LABSTAT Updates of the Department of Labor and Employment, Vol. 1 No. 12,
August 1997).
Page 2
Page 3 of 42
2. ULP in collective bargaining, instances
Instances:
a. Bargaining in bad faith
1. Individual bargaining considered unfair labor practice for an employer operating

under a collective bargaining agreement to negotiate or to attempt to negotiate with his
employees individually in connection with changes in the agreement. The basis of the
prohibition regarding individual bargaining with the strikers is that although the union is
on strike, the employer is still under obligation to bargain with the union as the
employees bargaining representative.
2. Surface bargaining is defined as going through the motions of negotiating

without any legal intent to reach an agreement.
b. Refusal to bargain the employer by its refusal to bargain is guilty of violating the duty
to bargain collectively in good faith. To bargain in good faith, an employer must not
only meet and confer with the union which represents his employees, but must also
recognize the union for the purpose of collective bargaining. In addition, he must
recognize the union as the bargaining representative of all the employees in the
appropriate bargaining unit, even if they are not all members of the union.
The duty to bargain extends beyond the period of contract negotiations and applies to labor
management relations during the term of the agreement. Since a collective bargaining
agreement does not define all the rights and obligations of the employer and his
employees, negotiation of grievances is part and parcel of the bargaining process.
c. gross violation of the CBA provisions- one of the modes of committing unfair labor
practice in collective bargaing is when the collective bargaining agreement (contract) is
already in place. At this stage, the negotiations are over; the document has been
signed, sealed, and delivered. Implementation should follow. But at this stage the
collective bargaining process is not yet over, and the duty to bargain is still operative
because such duty further requires faithful adherence to the contractual provisions.
Violation of the contract amount to unfair labor practice if the violation is gross.
Page 3
Page 4 of 42
3. Phil. V CA
G.R. No. 168612 December 10, 2014
PHILIPPINE ELECTRIC CORPORATION (PHILEC), Petitioner,

vs.
COURT OF APPEALS, NATIONAL CONCILIATION AND MEDIATION BOARD
(NCMB), Department of Labor and Employment, RAMON T. JIMENEZ, in his
capacity as Voluntary Arbitrator, PHILEC WORKERS' UNION (PWU), ELEODORO
V. LIPIO, and EMERLITO C. IGNACIO, Respondents.
FACTS:
Philippine Electric Corporation (PHILEC) is a domestic corporation "engaged in the

manufacture and repairs of high voltage transformers." Among its rank-and-file
employees were Eleodoro V. Lipio (Lipio) and Emerlito C. Ignacio, Sr. (Ignacio, Sr.),
former members of the PHILEC Workers Union (PWU). PWU is a legitimate labor
organization and the exclusive bargaining representative of PHILECs rank-and-file
employees. Private respondents were selected for promotion and required to undergo
training and eventually shall receive allowance until the training is completed. PHILEC
and its rank and file employees were governed by the June 1, 1997 collective bargaining
agreement providing for the steps in increasing the employees basic salary in case of
promotion. The PWU members alleged that schedule of training allowance did not
conform with Article X Section 4 of their CBA. PWU submitted the grievance to the
grievance machinery. PWU and PHILEC failed to amicably settle their grievance. Thus,
the parties filed a submission agreement with the National Conciliation and Mediation
Board.
For PHILECs failure to apply the schedule of step increases under Article X CBA,
PWU argued that PHILEC committed an unfair labor practice under Article 248 of the
Labor Code. In its position paper, PHILEC emphasized that it promoted Lipio and
Ignacio, Sr. while it was still negotiating a new collective bargaining agreement with
PWU. Since PHILEC and PWU had not yet negotiated a new collective bargaining
agreement when PHILEC selected Lipio and Ignacio, Sr. for training, PHILEC applied the
"Modified SGV" pay grade scale in computing Lipios and Ignacio, Sr.s training
allowance.
According to PHILEC, its past collective bargaining agreements with the rank-
and-file and supervisory unions resulted in an overlap of union membership in Pay Grade
IX of the rank-and-file employees and Pay Grade A of the supervisory employees.
Worse, past collective bargaining agreements resulted in rank-and-file employees under
Pay Grades IX and X enjoying higher step increases than supervisory employees under
Pay Grades A and B.
PHILEC disputed PWUs claim of unfair labor practice. According to PHILEC, it did
not violate its collective bargaining agreement with PWU when it implemented the
"Modified SGV" scale. Even assuming that it violated the collective bargaining
agreement, PHILEC argued that its violation was not "gross" or a "flagrant and/or
Page 4
Page 5 of 42
malicious refusal to comply with the economic provisions of [the collective bargaining
agreement]." PHILEC, therefore, was not guilty of unfair labor practice. PHILEC contends
that they applied modified SGV pay grade to avoid salary distortion. However, Voluntary
Arbitrator held that PHILEC violated its CBA with PWU therefore ordering the PHILEC to
pay the PWU members allowance based on their CBA.
As to PHILECs claim that applying Article X, Section 4 would result in salary

distortion within PHILECs enterprise, Voluntary Arbitrator ruled that this was "a concern
that PHILEC could have anticipated and could have taken corrective action" before
signing the collective bargaining agreement.
Voluntary Arbitrator Jimenez dismissed PWUs claim of unfair labor

practice. According to him, PHILECs acts "cannot be considered a gross
violation of the [CBA] nor . . . [a] flagrant and/or malicious refusal to comply
with the economic provisions of the [agreement]."
PHILEC filed a petition for certiorari before the Court of Appeals, alleging that
Voluntary Arbitrator gravely abused his discretion in rendering his decision. PHILEC
maintained that it did not violate the CBA. It applied the "Modified SGV" pay grade rates
to avoid salary distortion within its enterprise.
In addition, PHILEC argued that Article X, Section 4 of the CBA did not apply to
Lipio and Ignacio, Sr. Considering that Lipio and Ignacio, Sr. were promoted to a
supervisory position, their training allowance should be computed based on the
provisions of PHILECs collective bargaining agreement with ASSET, the exclusive
bargaining representative of PHILECs supervisory employees.
The Court of Appeals affirmed Voluntary Arbitrator Jimenezs decision. It agreed

that PHILEC was bound to apply Article X, Section 4 of its CBA with PWU in computing
Lipios and Ignacio, Sr.s training allowance.
ISSUE:
Whether or not Voluntary Arbitrator Jimenez gravely abused his discretion in directing
PHILEC to pay Lipios and Ignacio, Sr.s training allowance based on Article X, Section 4
of the June 1, 1997 rank-and-file collective bargaining agreement.
RULING: NO.
Voluntary Arbitrator Jimenez correctly awarded both Lipio and Ignacio, Sr.
training allowances based on the amounts and formula provided in the June 1,
1997 collective bargaining agreement.
A collective bargaining agreement is "a contract executed upon the request of either the
employer or the exclusive bargaining representative of the employees incorporating the
Page 5
Page 6 of 42
agreement reached after negotiations with respect to wages, hours of work and all other
terms and conditions of employment, including proposals for adjusting any grievances or
questions arising under such agreement." A collective bargaining agreement being a
contract, its provisions "constitute the law between the parties" and must be complied
with in good faith.
Lipio and Ignacio, Sr. were rank-and-file employees when PHILEC selected them
for training. Lipio and Ignacio, Sr. were selected for training during the
effectivity of the June 1, 1997 rank-and-file collective bargaining agreement.
Therefore, Lipios and Ignacio, Sr.s training allowance must be computed
based on Article X, Section 4 and Article IX, Section 1(f) of the June 1, 1997
collective bargaining agreement.
Contrary to PHILECs claim, Lipio and Ignacio, Sr. were not transferred out of the bargaining
unit when they were selected for training. Lipio and Ignacio, Sr. remained rank-and-file
employees while they trained for the position of Foreman I. Under Article IX, Section
1(e) of the CBA, a trainee who is "unable to demonstrate his ability to perform the work
. . . shall be reverted to his previous assignment. . . ." According to the same provision,
the trainee "shall hold that job on a trial or observation basis and . . . subject to prior
approval of the authorized management official, be appointed to the position in a regular
capacity."
Thus, training is a condition precedent for promotion. Selection for training does not mean
automatic transfer out of the bargaining unit of rank and-file employees.
PHILEC allegedly applied the "Modified SGV" pay grade scale to prevent any salary
distortion within PHILECs enterprise. This, however, does not justify PHILECs non-
compliance with the CBA. This pay grade scale is not provided in the collective
bargaining agreement. Had PHILEC wanted the "Modified SGV" pay grade scale applied
within its enterprise, "it could have requested or demanded that [the Modified SGV
scale] be incorporated in the [collective bargaining agreement]." It "could have invoked
Article 252 of the Labor Code" to incorporate the "Modified SGV" pay grade scale in its
collective bargaining agreement with PWU. But it did not.
PHILEC cannot choose when and to whom to apply the provisions of its collective bargaining
agreement. The provisions of a collective bargaining agreement must be applied
uniformly and complied with in good faith.
Page 6
Page 7 of 42
4. T&H v Union
T&H SHOPFITTERS CORP. ET AL. vs. T&H SHOPFITTERS CORP. UNION
Facts:
On September 7, 2004, the T&H Shopfitters Corporation/ Gin Queen Corporation

workers union (THS-GQ Union) filed their Complaint for Unfair Labor Practice (ULP) by
way of union busting, and Illegal Lockout, with moral and exemplary damages and
attorneys fees, against T&H Shopfitters Corporation (T&H Shopfitters) and Gin Queen
Corporation before the Labor Arbiter (LA).
1st CAUSE: In their desire to improve their working conditions, respondents and
other employees held their first formal meeting on November 23, 2003 to discuss the
formation of a union. The following day, seventeen (17) employees were barred from
entering petitioners factory premises located in Castillejos, Zambales, and ordered to
transfer to T&H Shopfitters warehouse at Subic Bay Freeport Zone (SBFZ) purportedly
because of its expansion. Afterwards, the said seventeen (17) employees were
repeatedly ordered to go on forced leave due to the unavailability of work.
Respondents contended that the affected employees were not given regular work
assignments, while subcontractors were continuously hired to perform their functions.
Respondents sought the assistance of the National Conciliation and Mediation Board.
Subsequently, an agreement between petitioners and THS-GQ Union was reached.
Petitioners agreed to give priority to regular employees in the distribution of work
assignments. Respondents averred, however, that petitioners never complied with its
commitment but instead hired contractual workers. Instead, Respondents claimed that
the work weeks of those employees in the SBFZ plant were drastically reduced to only
three (3) days in a month.
2nd CAUSE: On March 24, 2004, THS-GQ Union filed a petition for certification
election and an order was issued to hold the certification election in both T&H Shopfitters
and Gin Queen. On October 10, 2004, petitioners sponsored a field trip to Iba,
Zambales, for its employees. The officers and members of the THS-GQ Union were
purportedly excluded from the field trip. On the evening of the field trip, a certain Angel
Madriaga, a sales officer of petitioners, campaigned against the union in the forthcoming
certification election.
When the certification election was scheduled on October 11, 2004, the
employees were escorted from the field trip to the polling center in Zambales to cast
their votes. The remaining employees situated at the SBFZ plant cast their votes as well.
Due to the heavy pressure exerted by petitioners, the votes for no union prevailed.
3rd CAUSE: A memorandum was issued by petitioner Ben Huang (Huang),

Director for Gin Queen, informed its employees of the expiration of the lease contract
between Gin Queen and its lessor in Castillejos, Zambales and announced the relocation
Page 7
Page 8 of 42
of its office and workers to Cabangan, Zambales. When the respondents, visited the site
in Cabangan, discovered that it was a talahiban or grassland. The said union officers
and members were made to work as grass cutters in Cabangan, under the supervision of
a certain Barangay Captain Greg Pangan. Due to these circumstances, the employees
assigned in Cabangan did not report for work. The other employees who likewise failed
to report in Cabangan were meted out with suspension.
In its defense, Petitioners also stress that they cannot be held liable for ULP for
the reason that there is no employer-employee relationship between the former and
respondents. Further, Gin Queen avers that its decision to implement an enforced
rotation of work assignments for respondents was a management prerogative permitted
by law, justified due to the decrease in orders from its customers, they had to resort to
cost cutting measures to avoid anticipated financial losses. Thus, it assigned work on a
rotational basis. It explains that its failure to present concrete proof of its decreasing
orders was due to the impossibility of proving a negative assertion. It also asserts that
the transfer from Castillejos to Cabangan was made in good faith and solely because of
the expiration of its lease contract in Castillejos. It was of the impression that the
employees, who opposed its economic measures, were merely motivated by spite in
filing the complaint for ULP against it.
Issue:
Whether or not ULP acts were committed by petitioners against respondents.
Ruling:
ULP were committed by petitioners against respondents. Petitioners are being

accused of violations of paragraphs (a), (c), and (e) of Article 257 (formerly Article 248)
of the Labor Code, to wit:
Article 257. Unfair labor practices of employers.It shall be unlawful for an

employer to commit any of the following unfair labor practices: (a) To interfere with,
restrain or coerce employees in the exercise of their right to selforganization; x x x x
To contract out services or functions being performed by union members when such will
interfere with, restrain, or coerce employees in the exercise of their right to
selforganization; x x x x (e) To discriminate in regard to wages, hours of work, and
other terms and conditions of employment in order to encourage or discourage
membership in any labor organization. x x x
The questioned acts of petitioners, namely: 1) sponsoring a field trip to Zambales

for its employees, to the exclusion of union members, before the scheduled certification
election; 2) the active campaign by the sales officer of petitioners against the union
prevailing as a bargaining agent during the field trip; 3) escorting its employees after
the field trip to the polling center; 4) the continuous hiring of subcontractors performing
respondents functions; 5) assigning union members to the Cabangan site to work as
grass cutters; and 6) the enforcement of work on a rotational basis for union members,
Page 8
Page 9 of 42
taken together, reasonably support an inference that, indeed, such were all orchestrated
to restrict respondents free exercise of their right to self-organization.
The Court is of the considered view that petitioners undisputed actions prior and
immediately before the scheduled certification election, while seemingly innocuous,
unduly meddled in the affairs of its employees in selecting their exclusive bargaining
representative.
5. Manila v Mining corp
MANILA MINING CORP. EMPLOYEES ASSOCIATION-FEDERATION OF FREE

WORKERS CHAPTER -versus- MANILA MINING CORP
Facts:
Respondent (MMC) is a publicly-listed corporation engaged in large-scale mining for gold

and copper ore. MMC is required by law to maintain a tailings containment facility to
store the waste material generated by its mining operations. Consequently, MMC
constructed several tailings dams to treat and store its waste materials. One of these
dams was Tailings Pond No. 7 which was operated under a permit issued by the (DENR).
Upon expiration of the tailings permit DENR-EMB did not issue a permanent permit due to
the inability of MMC to secure an Environmental Compliance Certificate (ECC). An
essential component of an ECC is social acceptability or the consent of the residents in
the community to allow TP No. 7 to operate, which MMC failed to obtain. Hence, it was
compelled to temporarily shut down its mining operations, resulting in the
temporary lay-off of more than 400 employees in the mine site.
Thereafter, MMC called for the suspension of negotiations on the CBA with the Union until
resumption of mining operations.
The employees who were laid-off, together with the Union filed a complaint before the labor
arbiter praying for reinstatement, recognition of the Union as the sole and exclusive
representative of its rank-and-file employees, and payment of moral and exemplary
damages and attorneys fees.
Complainants challenged the validity of their lay-off on the averment that MMC was
not suffering from business losses. They alleged that MMC did not want to
bargain collectively with the Union, so that instead of submitting their
counterproposal to the CBA, MMC decided to terminate all union officers and active
members. They questioned the timing of their lay-off, and alleged that first, there
was no showing that cost-cutting measures were taken by MMC; second, no
criteria were employed in choosing which employees to lay-off; and third, the
Page 9
Page 10 of 42
individuals laid-off were those who signed the attendance sheet of the union
organizational meeting. Petitioners likewise claimed that they were denied due
process because they were not given a 30-day notice informing them of the lay-
off. Neither was the DOLE informed of this lay-off, as mandated by law.
Respondents justified the temporary lay-off as bona fide in character and a valid
management prerogative pending the issuance of the permit to continuously operate TP
No. 7.
The labor arbiter ruled in favor of MMC and held that the temporary shutdown of the mining
operation, as well as the temporary lay-off of the employees, is valid.
(NLRC) modified the judgment of the labor arbiter and ordered the payment of separation
pay equivalent to one month pay for every year of service. It ratiocinated that the
temporary lay-off, which exceeded more than six (6) months, had the effect of
severance of the employer-employee relationship.
Dissatisfied, both parties separately filed their petitions for certiorari with the Court of
Appeals. The two petitions were consolidated.
Court of Appeals modified the NLRC ruling, thus: Petition is MODIFIED insofar as it holds
MMC liable to pay the Union attorneys fees equivalent to 10% of the award, which
portion of the questioned decision is now SET ASIDE. The monetary award of separation
pay is maintained, but is MODIFIED from one (1) month pay for every year of service to
ONE-HALF (1/2) MONTH PAY for every year of service, a fraction of at least six (6)
months being considered as one (1) whole year.[13]
Their respective motions for reconsideration were denied for lack of merit.
Only the Union elevated the case to this Court via the instant petition for review
on certiorari.
The Union attributes:
1. Bad faith on the part of MMC in implementing the temporary lay-off resulting in the
complainants constructive dismissal;
2. that the failure to obtain a permit to operate TP No. 7 is largely due to failure on the
part of MMC to comply with the DENR-EMBs conditions;
3. that the temporary lay-off was effected without any proper notice to the DOLE as
mandated by Article 283 of the Labor Code;
4. that MMC did not observe the jurisprudential criteria in the selection of the
employees to be laid-off;
5. that MMC is guilty of unfair labor practice when it unilaterally suspended the
negotiation for a CBA;
6. that the lay-off and subsequent termination of complainants were due to the
formation of the union at MMC.
MMC defends that:
Page 10
Page 11 of 42
a. the temporary lay-off of the employees as valid and done in the exercise of
management prerogative;
b. upon expiration of the 6-month period, coupled with losses suffered by MMC, the
complainants were constructively dismissed;
c. an exception to the application of Article 286 of the Labor Code in that the 6-month
period cannot and will not apply to the instant case in order to consider the
employees terminated and to support the payment of separation pay. It explains that
the 6-month period does not refer to a situation where the employer does not have
any control over the nature, extent and period of the temporary suspension of
operations;
d. the suspension of MMCs operations is left primarily to the discretion of the DENR-
EMB, which has the authority to issue MMCs permit to operate TP No. 7;
e. where the closure is due to serious business losses, such as in this case where the
aggregate losses amounted to over P880,000,000.00, the law does not impose any
obligation upon the employer to pay separation benefits;
f. With respect to the charge of unfair labor practice, it merely deferred responding to
the Unions letter-proposal until the resumption of its mining operations;
g. the employment relationship between the parties was suspended at the time the
request to bargain was made.
The issue of MMCs temporary suspension of business operations resulting in the temporary
lay-off of some of its employees was squarely addressed by the labor tribunals and the
Court of Appeals. They sustained in unison the validity of the temporary suspension, as
well as the temporary lay-off.
ISSUE: Whether or not the lay-off is illegal or is considered as an unfair labor

practice.
HELD: The lay-off is neither illegal nor can it be considered as unfair labor practice.
Despite all efforts exerted by MMC, it did not succeed in obtaining the consent of the
residents of the community where the tailings pond would operate, one of the conditions
imposed by DENR-EMB in granting its application for a permanent permit. It is precisely
MMCs faultless failure to secure a permit which caused the temporary shutdown of its
mining operations.
The NLRC did not dispute MMCs claim that it had timely filed an application for renewal of its
permit to operate TP No. 7 but that the renewal permit was not immediately
released by the DENR-EMB, hence, MMC was compelled to temporarily shutdown its
milling and mining operations. The suspension of MMCs mining operations was not due
to its fault nor was it necessitated by financial reasons. Such suspension was brought
about by the non-issuance of a permit for the continued operation of TP No. 7 without
which MMC cannot resume its milling and mining operations.
Unfair labor practice cannot be imputed to MMC since, as ruled by the Court of Appeals, the
call of MMC for a suspension of the CBA negotiations cannot be equated to refusal to
bargain.
ARTICLE 252. Meaning of duty to bargain collectively. - The duty to bargain collectively
means the performance of a mutual obligation to meet and convene promptly and
Page 11
Page 12 of 42
expeditiously in good faith for the purpose of negotiating an agreement with respect to
wages, hours of work and all other terms and conditions of employment including
proposals for adjusting any grievances or questions arising under such agreements [and
executing a contract incorporating such agreements] if requested by either party but
such duty does not compel any party to agree to a proposal or to make any concession.
For a charge of unfair labor practice to prosper, it must be shown that the employer was
motivated by ill-will, bad faith or fraud, or was oppressive to labor. The employer must
have acted in a manner contrary to morals, good customs, or public policy causing social
humiliation, wounded feelings or grave anxiety. While the law makes it an obligation for
the employer and the employees to bargain collectively with each other, such
compulsion does not include the commitment to precipitately accept or agree to the
proposals of the other. All it contemplates is that both parties should approach the
negotiation with an open mind and make reasonable effort to reach a common ground of
agreement.
The Union based its contention on the letter request by MMC for the suspension of the
collective bargaining negotiations until it resumes operations. Verily, it cannot be said
that MMC deliberately avoided the negotiation. It merely sought a suspension
and in fact, even expressed its willingness to negotiate once the mining
operations resume. There was valid reliance on the suspension of mining operations
for the suspension, in turn, of the CBA negotiation. The Union failed to prove bad faith in
MMCs actuations.
Even as we declare the validity of the lay-off, we cannot say that MMC has no obligation at
all to the laid-off employees. The validity of its act of suspending its operations
does not excuse it from paying separation pay.
MMC seeks refuge in Article 286.
ART. 286. When employment not deemed terminated. The bona fide suspension of the
operation of a business or undertaking for a period not exceeding six (6) months, or the
fulfillment by the employee of a military or civic duty shall not terminate employment. In
all such cases, the employer shall reinstate the employee to his former position without
loss of seniority rights if he indicates his desire to resume his work not later than one (1)
month from the resumption of operations of his employer or from his relief from the
military or civic duty.
Article 286 of the Labor Code allows the bona fide suspension of operations for a
period not exceeding six (6) months. During the suspension, an employee is
not deemed terminated. As a matter of fact, the employee is entitled to be reinstated
once the employer resumes operations within the 6-month period. However, Article
286 is silent with respect to the rights of the employee if the suspension of
operations lasts for more than 6 months. Thus is bred the issue regarding the
responsibility of MMC toward its employees.
Page 12
Page 13 of 42
MMC subscribes to the view that for purposes of determining employer responsibility, an
employment should likewise not be deemed terminated, should the suspension of
operation go beyond six (6) months as long as the continued suspension is due, as in
this case, to a cause beyond the control of the employer.
We disagree.
We observe that MMC was forced by the circumstances, hence, it resorted to a temporary
suspension of its mining and milling operations. It is clear that MMC had no choice. It
would be well to reiterate at this juncture that the reason for such suspension
cannot be attributed to DENR-EMB. It is thus, evident, that the MMC declared
temporary suspension of operations to avert further losses.
The decision to suspend operation ultimately lies with the employer, who in its desire to
avert possible financial losses, declares, as here, suspension of operations.
Article 283 of the Labor Code applies to MMC.
ARTICLE 283. Closure of establishment and reduction of personnel. - The employer may
also terminate the employment of any employee due to the installation of labor-saving
devices, redundancy, retrenchment to prevent losses or the closing or cessation of
operation of the establishment or undertaking unless the closing is for the purpose of
circumventing the provisions of this Title, by serving a written notice on the workers and
the Ministry of Labor and Employment at least one (1) month before the intended date
thereof. In case of termination due to the installation of labor-saving devices or
redundancy, the worker affected thereby shall be entitled to a separation pay equivalent
to at least his one (1) month pay or to at least one (1) month pay for every year of
service, whichever is higher. In case of retrenchment to prevent losses and in cases of
closures or cessation of operations of establishment or undertaking not due to serious
business losses or financial reverses, the separation pay shall be equivalent to one (1)
month pay or at least one-half (1/2) month pay for every year of service, whichever is
higher. A fraction of at least six (6) months shall be considered one (1) whole year.
Said provision is emphatic that an employee, who was dismissed due to cessation of
business operation, is entitled to the separation pay equivalent to one (1)
month pay or at least one-half (1/2) month pay for every year of service,
whichever is higher. And it is jurisprudential that separation pay should also be paid
to employees even if the closure or cessation of operations is not due to losses.
It was proven that MMC stopped its operations precisely due to failure to secure permit to
operate a tailings pond. Separation pay must nonetheless be given to the separated
employees.
Finding no cogent reason to disturb its ruling, we affirm the Decision of the Court of
Appeals.
Page 13
Page 14 of 42
6. FVC v sama-samang
DOCTRINE: While the parties may agree to extend the CBAs original five-year term
together with all other CBA provisions, any such amendment or term in excess of five
years will not carry with it a change in the unions exclusive collective bargaining status.
By express provision of the Article 253-A, the exclusive bargaining status cannot go
beyond five years and the representation status is a legal matter not for the workplace
parties to agree upon. Despite an agreement for a CBA with a life of more than five
years, either as an original provision or by amendment, the bargaining unions exclusive
bargaining status is effective only for five years and can be challenged within sixty (60)
days prior to the expiration of the CBAs first five years.
FACTS:
Petitioner FVCLU-PTGWO is the recognized bargaining agent of the rank-and-file

employees of the FVC Philippines Incorporated. It signed a five-year CBA with the
company (from February 1, 1998 to January 30, 2003).
At the end of the third year of the five-year term and pursuant to the CBA, FVCLU-
PTGWO and the company entered into a renegotitation of the CBA and modified the
CBAs duration.
o Art XXV, Sec 2 of the renegotiated CBA provides that this re-negotiation agreement
shall take effect beginning February 1, 2001 and until May 31, 2003, extending the
original five-year period of the CBA by 4 months.
On January 21, 2003, 9 days before the January 30, 2003 expiration of the originally-
agreed CBA term, Sama-samang Nagkakaisang sa FVC-Solidarity of Independent and
General Labor Organizations (SANAMA-SIGLO) filed before DOLE a petition for
certification election for the same rank-and-file covered by FVCLU-PTGWO.
o FVCLU-PTGWO moved to dismiss the petition on the ground that the certification
election petition was filed outside the freedom period or outside the 60 days before
the expiration of the CBA on May 31, 2003.
Med-Arbiter: Dismissed PCE for being filed outside freedom period counted from the
May 31, 2003 expiry date of the amended CBA.
DOLE Secretary Tomas: reversed Med-Arbiter and ordered the conduct of certification
election. FVCLU-PTGWO moved for the reconsideration.
DOLE Acting Secretary Imson: granted MR; dismissed PCE.
o The amended CBA, which extended the representation aspect of the original CBA by
4 months, had been ratified by members of the bargaining unit some of whom later
organized themselves as SANAMA-SIGLO.
o Since these SANAMA-SIGLO members fully accepted and in fact received the benefits
arising from the amendments, they also accepted the extended term of the CBA and
cannot now file a petition for certification election based on the original CBA
expiration date.
o MR denied.
CA: ruled in favor of SANAMA-SIGLO; reversed DOLEs order.
Page 14
Page 15 of 42
o While the parties may renegotiate the other provisions (economic and non-economic)
of the CBA, this should not affect the five-year representation aspect of the original
CBA.
o If the duration of the renegotiated agreement does not coincide with but rather
extends the original five-year term, the same will not adversely affect the right of
another union to challenge the majority status of the incumbent bargaining agent
within 60 days before the lapse of the original five-year term of the CBA.
o In the event that a new union wins in the certification election, such union is required
to honor and administer the renegotitated CBA throughout the excess period.
RULING: Dismissed petition. Affirmed CAs decision, but nevertheless declare that no
certification election can be enforced as this petition has effectively been abandoned.
Whether the amendment of the CBA extending its term carry with it an extension
of the unions exclusive bargaining status? NO
Whether a PCE may be filed within the freedom period of the original CBA? - YES
PETITIONERS ARGUMENTS:
o The extension of the CBA term also changed the unions exclusive bargaining
representation status and effectively moved the reckoning point of the 60-day
freedom period from January 30 to May 30, 2003.
o Thus, when the term of the CBA was extended, its exclusive bargaining status was
similarly extended so that the freedom period for the filing of a PCE should be
counted back from the expiration of the amended CBA term.
o SANAMA-SIGLO is estopped from questioning the extension of the CBA term under
the amendments because its members are the very same ones who approved the
amendments, including the expiration date of the CBA, and who benefited from these
amendments.
o The representation petition had been rendered moot by a new CBA it entered into
with the company covering the period June 1, 2003 to May 31, 2008.
SANAMA-SIGLO abandoned their desire to contest the representative status of FVCLU-
PTGWO.
o Since the promulgation of the CA decision (three years after the PCE was filed), the
local leaders of SANAMA-SIGLO had stopped reporting to the federation office or
attending meetings. The SANAMA-SIGLO counsel, who is also the national president,
is no longer in the position to pursue the present case because the local union and its
leadership had given up.
o A new CBA had already been signed up by FVCLU-PTGWO and the company.
Nevertheless, the Court still deemed it necessary to resolve the question of law raised
since this exclusive representation status will inevitably recur in the future.
Art 253-A of the Labor Code provides:

o Terms of a collective bargaining agreement. Any Collective Bargaining Agreement
that the parties may enter into, shall, insofar as the representation aspect is
concerned, be for a term of five (5) years. No petition questioning the majority
status of the incumbent bargaining agent shall be entertained and no certification
election shall be conducted by the Department of Labor and Employment outside of
Page 15
Page 16 of 42
the sixty day period immediately before the date of expiry of such five-year term of
the Collective Bargaining Agreement. All other provisions of the Collective Bargaining
Agreement shall be renegotiated not later than three (3) years after its execution.
o Any agreement on such other provisions of the Collective Bargaining Agreement
entered into within six (6) months from the date of expiry of the term of such other
provisions as fixed in such Collective Bargaining Agreement, shall retroact to the day
immediately following such date. If any such agreement is entered into beyond six
months, the parties shall agree on the duration of retroactivity thereof. In case of a
deadlock in the renegotiation of the collective bargaining agreement, the parties may
exercise their rights under this Code.
This provision is implemented through Book V, Rule VIII, Sec 14(b):
o Sec. 14. Denial of the petition; grounds. The Med-Arbiter may dismiss the petition on
any of the following grounds: x x x x
o (b) the petition was filed before or after the freedom period of a duly registered
collective bargaining agreement; provided that the sixty-day period based on the
original collective bargaining agreement shall not be affected by any amendment,
extension or renewal of the collective bargaining agreement.
While the parties may agree to extend the CBAs original five-year term
together with all other CBA provisions, any such amendment or term in excess
of five years will not carry with it a change in the unions exclusive collective
bargaining status.
By express provision of the Article 253-A, the exclusive bargaining status cannot go
beyond five years and the representation status is a legal matter not for the workplace
parties to agree upon.
Despite an agreement for a CBA with a life of more than five years, either as an original
provision or by amendment, the bargaining unions exclusive bargaining status is
effective only for five years and can be challenged within sixty (60) days prior
to the expiration of the CBAs first five years.
San Miguel Corp Employees Union PTGWO v Confesor: In the event however, that the
parties, by mutual agreement, enter into a renegotiated contract with a term of three
(3) years or one which does not coincide with the said five-year term and said
agreement is ratified by majority of the members in the bargaining unit, the subject
contract is valid and legal and therefore, binds the contracting parties. The same will
however not adversely affect the right of another union to challenge the majority status
of the incumbent bargaining agent within sixty (60) days before the lapse of the original
five (5) year term of the CBA.
As applied in this case:
The CBA was originally signed for a period of five years (expires on January 30, 2003),
with a provision for a renegotiation of the CBAs other provisions at the end of the 3 rd
year. Thus, prior to January 30, 2001, the workplace parties sat down for renegotiation
but instead of confining themselves to the economic and non-economic CBA provisions,
also extended the life of the CBA for another four months.
This negotiated extension of the CBA term has no legal effect on the FVCLU-PTGWOs
exclusive bargaining representation status which remained effective only for 5 years
ending on the original expiry date of January 30, 2003.
Hence, sixty days prior to this date, or starting December 2, 2002, SANAMA-SIGLO
could properly field a PCE.
Page 16
Page 17 of 42
Its petition filed on January 21, 2003 or 9 days before the expiration of the CBA was
seasonable filed.
7. Strikes, picketing and lockouts
STRIKES, PICKETING AND LOCK-OUTS
1. Who may declare a strike or lock-out? (B5,R13, S2, IRR) General Rule: Any certified or
duly recognized bargaining representative may declare a strike in cases of bargaining
deadlocks or ULP. Exception: In the absence of a certfied or duly recognized
bargaining representative, any legitimate labor organization may declare a strike, BUT
ONLY ON THE GROUND OF ULP.
2. Requisites of a valid strike: (a) Must have a lawful purpose; (b) conducted through
lawful means; and (c) must be in compliance with the procedural requirements under
the Labor Code
2.1 Lawful purpose (a) Economic strike - is intended to force wage and other concessions
from the employer which is not required by law to grant. Usually, the consequence of a
deadlock in collective bargaining negotiations; and
b) ULP strike - is called against the unfair labor practices of the employer, usually for the
purpose of making him desist from further committing such practices.
- Examples of ULP under Articles 248-249, LC: (1) interference, restraint or

coercion of the employees in their exercise of right to self-organization; (2) yellow-dog
contracts, e.g., stipulation requiring employee not to join unions, or for employee to
withdraw from union as condition for continued employment; (3) refusal to collectively
bargain; (4) economic inducement and/or discrimination in regard to wages, hours of
work, in order to encourage/discourage union membership; (5) contracting out of
services/functions being performed by union members, where such will interfere in the
exercise of right to self-org., among others.
- All other forms of strikes, viz.: lightning strike, sit-down strike; sympathetic
strike, slowdown strike; wildcat strike; intermittent strike, are all prohibited for lack of
valid purpose or failure to comply with procedural requirements (discussion below).
- What are non-strikeable issues? Article 263 (b); Dept. Order No. 9, Rule 12,
Sec. 2 (a) Violations of CBA which are not gross in character shall be resolved via the
Grievance Machinery; (b) Inter-union or intra-union disputes; (c) Labor standards cases
such as wage orders (Guidelines governing Labor Relations [19 Oct. 1987] issued by
Sec. Drilon; See: Appendix Y of Fozs Labor Code; See also: Article 261, LC) (d) Those
issues which had already been brought to voluntary or compulsory arbitration
Page 17
Page 18 of 42
- Is a violation of the CBA a case for ULP? It depends. Check Article 261, LC; See
also: Dept. Order No. 9, Rule 22, Sec. 1. The voluntary arbitrator or panel xxx shall
have original and exclusive jurisdiction to hear and decide all unresolved grievances
arising from the interpretation or implementation of the CBA, and those arising from the
interpretation of company personnel policies
xxx. Accordingly, VIOLATIONS OF THE CBA, EXCEPT THOSE WHICH ARE GROSS IN
CHARACTER, SHALL NO LONGER BE TREATED AS ULP AND SHALL BE RESOLVED AS
GRIEVANCES UNDER THE CBA. For purposes of this Article, gross violations of the CBA
shall mean flagrant and/or malicious refusal to comply with the economic provisions of
the CBA.
2.2 Lawful means -- Even if the strike is valid because its objective or purpose is lawful, the
strike may still be declared invalid where the means employed are illegal.
2.2.1 Article 264 (b): No person shall obstruct, impede or interfere with by force, violence,
coercion, threats or intimidation any peaceful picketing by employees during any labor
controversy, or in the exercise of the right of self-orgn., or collective bargaining, or shall
aid or abet such destruction or interference. No employer shall use or employ any
person to commit such acts, nor shall any person be employed for such purpose
(prohibition against strike-breakers was added under Dept. Order No. 9). Article 264
[e]: No person engaged in picketing shall commit any act of violence, coercion or
intimidation, or obstruct the free ingress to and egress from the employers premises for
lawful purposes, or to obstruct public thoroughfares.
2.2.2 What are the consequences if any of the prohibited activities as mentioned above are
committed during the conduct of the strike? The otherwise valid strike may be converted
into an illegal one Association of Independent Unions in the Philippines (AIUP) vs. NLRC,
March 25, 1999. -- To be valid, a strike must be pursued within legal bounds. Among
such limits are the prohibited activities under Article 264 of the Labor Code, particularly
paragraph (e), which states that no person engaged in picketing shall: a. commit any
act of violence, coercion, or intimidation or b. obstruct the free ingress to or egress
from the employers premises for lawful purposes or c. obstruct public thoroughfares.
2.2.3 What are the liabilities of the workers who participated in the commission of the
prohibited activities as mentioned above are committed during the conduct of the strike?
may lose employment status if: (a) he
knowingly participates in an illegal strike, viz.: non-compliance with purpose and
process; OR (b) he knowingly participates in the commission of illegal activities,
may lose employment status
only if he knowingly commits an illegal act. 2.3 Compliance with procedural
requirements of the Labor Code Apart and separate from the lawful purposes and lawful
means in the conduct of a valid strike, the third requisite is compliance with the
procedural requirements of law.
Page 18
Page 19 of 42
Thus: 2.3.1 Notice of strike or lockout - must be filed prior to the intended date of strike,
taking into consideration the cooling off period Cooling off period (Art. 263, LC; B5 R8
S3, IRR) If bargaining deadlocks 30 days If ULP 15 days If ULP on the ground of
union busting: Union may take action immediately, but note that a strike vote must
have been conducted and results submitted to DOLE (Art. 263 [b]; Dept Order No. 9,
Rule 22, Secs. 3 and 7)
2.3.2 Conciliation proceedings NCMB to immediately call parties involved to a conference

within period of 48 hours from receipt of notice, using the fastest means possible
(telephone, telegraph or messenger) Note1: Parties obliged to meet promptly and
expeditiously in good faith, as part of their duty to bargain collectively which covers
proceedings before the NCMB. If employer refuses to attend conference, may be
charged with ULP. (Dept. Order No. 9, R22, S6 [2]). Note2: During the conciliation
and mediation proceedings before the NCMB, parties are supposed to refrain from doing
any act which will exacerbate the proceedings re: maintenance of status quo.
2.3.3 Strike vote approved by a majority of the TOTAL UNION MEMBERSHIP in the
bargaining unit (hence: only members of the majority union may vote), via secret ballot,
in a meeting or referenda specially called for the purpose Lock-out vote - approved by
a majority of the Board of Directors of the employer company, by secret ballot in a
meeting called for such purpose.
2.3.4 Seven Day Strike ban (Dept. Order No. 9. R22, S7[e]) - after the strike vote is taken,
it is required that the union must file the result of the strike vote with the NCMB at least
7 days prior to the intended date of strike.
Note: Both cooling off period and 7-day strike ban must be complied with and is
mandatory. Otherwise, illegal strike. (National Federation of Sugar Workers vs. Ovejera,
114 SCRA 354) 3. Assumption of Jurisdiction by the Secretary of Labor or Certification
of the Labor Dispute to the National Labor Relations Commission for Compulsory
Arbitration.
3.1 Secretary of Labor has discretion to assume jurisdiction or to certify to the NLRC on the
ground that the labor dispute is one "adversely affecting the national interest", and said
exercise of discretion cannot be questioned. (FEATI University vs. Bautista, 18 SCRA
1191); and even if there is no notice of strike or a formal complaint. (Saulog Transit vs.
Lazaro, 128 SCRA 591.)
3.2 Nature and Effect of Assumption and Certification a) Assumption and certification
orders are executory in character and are strictly to be complied with by the parties
even during the pendency of any petition questioning their validity. b) It automatically
results in a return-to-work of all striking workers (if one has already taken place), or
enjoins the taking place of a strike (Union of Filipro Employees vs. Nestle Philippines,
Inc., 192 SCRA 396.) c) While termination by reason of an illegal strike requires
hearing, replacement by reason of violation of a return-to-work order does not. (Free
Telephone Workers Union vs. PLDT, 113 SCRA 663, 678.)
Page 19
Page 20 of 42
3.4 Effect of Defiance of Assumption or Certification Orders. "A Strike that is undertaken
despite the issuance by the Secretary of Labor of an assumption or certification order
becomes a prohibited activity and thus illegal, pursuant to the second paragraph of Art.
264 of the Labor Code as amended (Zamboanga Wood Products, Inc. vs. NLRC, G.R.
82088, October 13, 1989; 178 SCRA 482). The Union, officers and members, as a
result, are deemed to have lost their employment status for having knowingly
participated in an illegal act." (Union of Filipino Employees vs. Nestle Philippines, Inc.
[192 SCRA 396]) 4. "No Strike No Lockout" Clause in the CBA. No Strike-No
Lockout clause in the CBA applies only to economic strikes; it does not apply to ULP
strikes. Hence, if the strike is founded on an unfair labor practice of the employer, a
strike declared by the union cannot be considered a violation of the no-strike clause.
(Master Iron Labor Union vs. NLRC, 219 SCRA 47.) 5. 2010-2015 CASES 5.1 2015
CASE: Club Filipino, Inc., et al. vs. Benjamin Bautista, et al., G.R. No. 168406, 04 January
2015. -- The law requires knowledge of the illegality of the strike on the part of the
union officer before he can be dismissed; when second motion for reconsideration may
be allowed; illegal dismissal case is not res judicata to illegal strike case. a. The law
requires knowledge of the illegality of the strike as a condition sine qua non before a
union officer can be dismissed for participating in an illegal strike. b. As a general rule,
the filing of a second Motion for Reconsideration is prohibited. (Rule 52, Section 2 of the
Rules of Court.) It is only allowed under extraordinary persuasive reasons and only
upon express leave first obtained. (McBurnie v. Ganzon, 707 SCRA 646 [2013], En
Banc.)
The grant of leave to file a second motion will not toll the reglamentary period for the
decision to become final and executory after 15 days. It only means that the Entry of
Judgment issued may be lifted should the second motion be granted. c. The decision on
the illegal dismissal case cannot be considered res judicata on the illegal strike case. The
element of identity of cause of action is absent.
8. Club v Benjamin bautista
G.R. No. 168406 January 14, 2015

CLUB FILIPINO, INC. and ATTY. ROBERTO F. DE LEON, Petitioners,
vs.
BENJAMIN BAUTISTA, RONIE SUALOG, JOEL CALIDA, JOHNNY ARINTO, CARLITO
PRESENTACION, and ROBERTO DE GUZMAN, Respondents.
Facts:
Club Filipino Employees Association (CLUFEA) is a union representing the employees of

Club Filipino, Inc. They both entered into previous CBAs, the last one expired on May 31,
2000. But before the last CBA's expiration and within the 60-day freedom period,
Page 20
Page 21 of 42
CLUFEA had made several demands on Club Filipino, Inc. to negotiate a new agreement.
The latter, however, replied that its Board of Directors coul not muster a quorum to
negotiate with CLUFEA. When CLUFEA formally submitted its proposals to Club Filipino's
negotiating panel. Still, Club Filipino failed to negotiate, citing as reason the illness of
the chairperson of its negotiating panel. And so, to compel Club Filipino to negotiate with
it, CUFEA filed before the NCMB a request for preventive mediation. They met.
However, the meeting ended with the parties declaring a deadlock in negotiation.
Thus, on April 6, 2001, CLUFEA filed with the NCMB a notice of strike on the ground of
bargaining deadlock, while Club Filipino submitted the first part of its Counter poroposals
on April 22. On May 4, CLUFEA conducted a strike vote under the DOLE's supervision
with the majority of CLUFEA's total union membership voting to strike. On May 11, Club
Filipino submitted to CLUFEA the second part of its counterproposal, which CLUFEA
countered with an improved offer. Club Filipino, however, refused. And so, on May 26,
CLUFEA staged a strike on the ground of bargaining deadlock.
Club Filipino filed before the NCR Arbitration Branch of the NLRC a petition to declare
CLUFEA's strike illegal. It alleged that CLUFEA failed to file a notice of strike and to
conduct a strike vote, in violation of the legal requirements of staging a Strike.
Moreover, its members allegedly committed illegal acts while on strike, preventing their
co-workers from entering and leaving the Club Filipino's premises and even cutting off
the electricity and water supply on the first day of strike. It prayed that the CLUFEA
officers who participated in the strike be declared to have lost their employment
pursuant to Article 264(a) of the Labor Code.
[AS TO THE LEGALITY/ILLEGALITY OF THE TERMINATION]
LA Decision: the Labor Arbiter declared CLUFEAs strike "procedurally infirm" for
CLUFEAs failure to comply with the procedural requirements for staging a strike.
The Labor Arbiter declared the strike illegal and considered "all the officers of the
union . . . terminated from service."
NLRC Decision: CLUFEA's appeal was filed by persons with no legal standing to
question the LA's decision. One had allegedly resigned. The three others were not
the officers anymore since there was already a new set of officers when they filed
the Appeal.
CA Decision: The CA rationated that they had the legal personality to appeal
before the NLRC because being workers and officers of CLUFEA, they had every
right to question his or her loss of employment with the NLRC. Furthermore, the
labor arbiter disregarded the law on the status of employees who participated in an
illegal strike. Under the law, the union officers may be dismissed for participating
in an illegal strike only if they knowingly participated in iti. Hence, it erred in
ordering all the officers of CLUFEA dismissed from the service even without naming
these officers and specifying the acts these officers committed that rendered the
strike illegal.
Page 21
Page 22 of 42
SC Decision: Club Filipino then filed a Petition for review on certiorari before the
SC. The SC agreed with the CA, saying that the Labor Arbiter gravely abused his
discretion in ordering the "wholesale dismissal of CLUFEAs officers. According to
this court, the law requires "knowledge [of the illegality of the strike] as a
condition sine qua non before a union officer can be dismissed . . . for participating
in an illegal strike. However, "[n]owhere in the ruling of the labor arbiter can
[there be found] any discussion of how respondents, as union officers, knowingly
participated in the alleged illegal strike. Thus, even assuming . . . that the strike
was illegal, [the] automatic dismissal [of CLUFEAs officers] had no basis."
[THIS PART IS THE LIBOG PROCEDURAL ASPECT ISSUE. BAKA ITANONG KASI NI ATTY.]
When the SC denied Club Filipino's Petition for Review on certiorari, filed a motion for
reconsideration, which the SC denied with finality on September 9, 2009. It ruled that it
shall not entertain any further pleadings or motions and ordered that Entry of Judgment
in this case be made in due course. However, Club Filipino filed a Motion for Leave to file
and admit the attached Supplemental Motion for Reconsideration. Thereafter, it filed its
Motion for leave to file and admit further Pleading/Motion, alleging that the SC failed to
consider its supplemental motion for reconsideration in issuing its September 9 decision.
The SC granted their motion for leave and noted the Supplemental Motion for
Reconsideration. However, because of the September 9 decision, an entry of judgment
was already issued, declaring that the case had already become final and executory as
of October 26, 2009. it likewise ordered the return of the case records to the CA for
remand to the court of origin.
Club Filipino received the entry of judgment on November 10, 2010. Nine days after, it
filed a manifestation and motion, arguing that the court prematurely issued the entry of
judgment because it still had to resolve the Supplemental Motion for Reconsideration.
[AS TO THE RES JUDICATA ISSUE]
Moreover, Club Filipino argued that pending its Petition for declaration of illegal strike with
the NLRC, it implemented a retrenchment program to minimize its "mounting losses."
Among the 76 retrenched employees were respondents. When the respondents filed a
complaint for illegal dismissal with the NLRC to question the validity of the retrenchment
program, the LA dismissed the complaint and found the program to be valid. This
decision was affirmed by the NLRC. And so Club Filipino argues that the NLRCs
Resolution of the issue constituted res judicata as to bar the Court of Appeals from
declaring that respondents were illegally dismissed and from awarding respondents
separation pay in the illegal strike case.
Issues:
1. whether Club Filipino's filing of the Supplemental Motion for Reconsideration

prevented the Resolution from becoming final and executory
2. whether the NLRC's decision on the illegal dismissal case was res judicata on the
Page 22
Page 23 of 42
illegal strike case

3. whether the officers were validly dismissed
Ruling:
The Supplemental Motion for reconsideration must be denied with finality.
As a general rule, the filing of second Motions for Reconsideration of a judgment or final
resolution is prohibited under Rule 52, Section 2 of the Rules of Court. This rule has
been reiterated in Rule 15, Section 3 of the Internal Rules of the Supreme Court stating
that the Court shall not entertain a second motion for reconsideration, and any
exception to this rule can only be granted in the higher interest of justice by the Court
en banc upon a vote of at least two-thirds of its actual membership. There is
reconsideration "in the higher interest of justice" when the assailed decision is not only
legally erroneous, but is likewise patently unjust and potentially capable of causing
unwarranted and irremediable injury or damage to the parties. A second motion for
reconsideration can only be entertained before the ruling sought to be reconsidered
becomes final by operation of law or by the Courts declaration. For this court to
entertain second Motions for Reconsideration, the second Motions must present
"extraordinarily persuasive reasons and only upon express leave first obtained." Once
leave to file is granted, the second Motion for Reconsideration is no longer prohibited.
In the present case, this court granted leave to petitioner Club Filipino, Inc. to file the
Supplemental Motion for Reconsideration in the Resolution dated January 11, 2010. The
Supplemental Motion for Reconsideration, therefore, is no longer prohibited.
The grant of leave to file the Supplemental Motion for Reconsideration, however, did not
prevent this courts July 13, 2009 Resolution from becoming final and executory. A
decision or resolution of this court is deemed final and executory after the lapse of 15
days from the parties receipt of a copy of the decision or resolution. The grant of leave
to file the second Motion for Reconsideration does not toll this 15-day period. It only
means that the Entry of Judgment first issued may be lifted should the second Motion for
Reconsideration be granted. This case became final and executory on October 26, 2009,
after the lapse of the 15th day from petitioner Club Filipino, Inc.s receipt of the
Resolution denying its first Motion for Reconsideration. Entry of Judgment, therefore,
was in order.
The illegal dismissal case was not res judicata on the illegal strike case.
Res judicata "literally means a matter adjudged; a thing judicially acted upon or
decided; [or] a thing or matter settled by judgment.' It lays a rule that an existing final
judgment or decree rendered on the merits, and without fraud or collusion, by a court of
competent jurisdiction, upon any matter within its jurisdiction,is conclusive of the rights
of the parties or their privies, in all other actions or suits in the same or any other
judicial tribunal of concurrent jurisdiction on the points and matters in issue in the first
suit."
Page 23
Page 24 of 42
The elements of res judicata are:
(1) the judgment sought to bar the new action must be final;
(2) the decision must have been rendered by a court having jurisdiction over the
subject matter and the parties;
(3) the disposition of the case must be a judgment on the merits; and
(4) there must be as between the first and second action identity of parties, subject
matter, and causes of action.
In the case at bar, the first three elements are present in this case. However, the fourth
element is absent. Although the cases have substantially identical parties and subject
matter of the dismissal of respondents, the cause of action for declaration of illegal
strike and the cause of action for illegal dismissal are different. In an action for
declaration of illegal strike, the cause of action is premised on a union or a labor
organizations conduct of a strike without compliance with the statutory requirements.
On the other hand, in an action for illegal dismissal, the cause of action is premised on
an employers alleged dismissal of an employee without a just or authorized cause as
provided under Articles 282, 283, and 284 of the Labor Code.
All told, the Decision in the illegal dismissal case was not res judicata on the illegal strike
case. The NLRC correctly executed the Court of Appeals' Decision in the illegal strike
case.
The union officers were illegally dismissed.
As the CA ruled, the law requires "knowledge [of the illegality of the strike] as a
condition sine qua non before a union officer can be dismissed . . . for participating in an
illegal strike. However, "[n]owhere in the ruling of the labor arbiter can [there be found]
any discussion of how respondents, as union officers, knowingly participated in the
alleged illegal strike. Thus, even assuming . . . that the strike was illegal, [the]
automatic dismissal [of CLUFEAs officers] had no basis."
9. Law on termination/disciplinary cases; grounds for termination
LAW ON TERMINATION
BASIC PRINCIPLES IN DISCIPLINARY CASES
1. CODE OF CONDUCT VS. SECURITY OF TENURE
Balancing of interests in disciplinary cases
Page 24
Page 25 of 42
MANAGEMENT VS. LABOR
Management prerogatives Security of tenure

Right to discipline employee in Right to continuous employment until
accordance with rules and regulations termination for just or authorized
cause
STATE
Police power/social justice
Interpretation in favor of labor
Adas Notes: Thus, in the context of the balancing of interests relative to the conduct of
human relationships and work performance within the business, certain parameters will
have to be observed:
a) Burden of proof is upon the employer to show just cause for the imposition of a penalty
upon the employee.
HOWEVER, employee must first prove the fact of dismissal.
b) There must exist substantial evidence to prove just or authorized cause of termination.
Proof beyond reasonable doubt not required in administrative cases.
Note1: Failure of employer to submit documents which are presumed to be in its

possession, inspite of an Order to do so, implies that the presentation of said documents
is prejudicial to its case. (De Guzman vs. NLRC, 540 SCRA 210 [Dec. 2007]).
Note2: IMPORTANT CASE ON SUBSTANTIAL EVIDENCE. (Alilem Credit Cooperative vs.

Bandiola, G.R. No. 173489, 25 February 2013.)
c) In the imposition of penalty, whether suspension or termination, the same must be

commensurate to the offense committed.
2012 CASE: Negros Slashers vs. Alvin Teng, G.R. No. 187122, 22 Feb 2012.
Thus: for valid termination, there must both be JUST CAUSE AND DUE PROCESS.
(exception: Agabon ruling, see Section 4 hereunder)
2. GROUNDS FOR TERMINATION
2.1 JUST CAUSES FOR TERMINATION (Art. 282, LC)
2.1.2 SERIOUS MISCONDUCT
Page 25
Page 26 of 42
DEFINED as improper or wrong conduct, a transgression of a definite rule of action. A

forbidden act or dereliction of duty which is wilful in character and implies wrongful
intent, and not mere error in judgment.
ELEMENTS OF SERIOUS MISCONDUCT
1. must be serious, or grave and aggravated character and not merely trivial or
unimportant
2. must be related to the performance of the employees duties; and
3. must show that he has become unfit to continue working for the employer.
2012-2015 CASES ON SERIOUS MISCONDUCT
a) Roque B. Benitez, et al., vs. Santa Fe Moving and Relocation Services, et al.,
G.R. No. 208163, 20 April 2015.
Serious misconduct wherein employee went up the stage and confronted the
Managing Director with verbal abuse (putang na mo VK, gago ka!) during the
Companys Christmas party. He even attempted to throw a beer bottle at said
Managing Director but was restrained by other employees. This caused grave
embarrassment for the audience who witnessed the incident, including company
officials, employees, their families, as wells as company clients and guests. Benitezs
offense constituted a serious misconduct as defined by law. His display of insolent
and disrespectful behavior, in utter disregard of the time and place of its occurrence,
had very much to do with his work.
b) St. Lukes Medical Center vs. Ma. Theresa Sanchez, G.R. No. 212054, 11
March 2015; on dishonesty viz., theft of medical supplies.
Question: Whether or not employee may validly set up as a defense that there was
no real intention to bring out unused hospital supplies left by patients (syringe,
micropore, cotton balls, gloves, etc), to avoid termination?
Answer: NO. Sanchez was validly dismissed by SLMC for dishonesty, i.e., theft,
pilferage of hospital or co-employee property, x x x or its attempt in any form or
manner from the hospital, co-employees, doctors, visitors, [and] customers (external
and internal) with termination from employment. Such act is obviously connected
with Sanchezs work, who, as a staff nurse, is tasked with the proper stewardship of
medical supplies. Significantly, records show that Sanchez made a categorical
admission in her handwritten letter i.e., [k]ahit alam kong bawal ay nagawa kong
[makapag-uwi] ng gamit that despite her knowledge of its express prohibition
under the SLMC Code of Discipline, she still knowingly brought out the subject
medical items with her.
c) IMPORTANT DOCTRINAL 2014 CASE:
Page 26
Page 27 of 42
Northwest Airlines vs. Concepcion Del Rosario, GR. 157633, 10 September

2014.
New clarification of the definition of FIGHTING within company premises. Two flight
stewardesses verbally argued over a wine bottle opener, while passengers were
boarding the flight. They were both off-loaded as a result.
Question: Whether or not a verbal altercation between two employees falls within the
purview of the infraction fighting as to merit termination?
Supreme Court: NO. Fighting to be interpreted strictly, and must be more than more than
just an exchange of words that usually succeeded the provocation by either party, to
merit termination.
Rationale: In several rulings where the meaning of fight was decisive, the Court has
observed that the term fight was considered to be different from the term argument.
In People v. Asto, for instance, the Court characterized fight as not just a merely verbal
tussle but a physical combat between two opposing parties.
Similarly, in Pilares, Sr. v. People, a fight was held to be more than just an exchange of
words that usually succeeded the provocation by either party. Based on the foregoing,
the incident involving Del Rosario and Gamboa could not be justly considered as akin to
the fight contemplated by Northwest. In the eyes of the NLRC, Del Rosario and Gamboa
were arguing but not fighting. Moreover, even assuming arguendo that the incident was
the kind of fight prohibited by Northwest's Rules of Conduct, the same could not be
considered as of such seriousness as to warrant Del Rosario's dismissal from the service.
The gravity of the fight, which was not more than a verbal argument between them, was
not enough to tarnish or diminish Northwest's public image.
d) Colegio de San Juan de Letran vs. Isidra Dela Rosa-Meris, G.R. No. 178837, 01
September 2014. -- Tampering of school records/altering grades constitute serious
misconduct punishable with termination under the Labor Code and under the Manual of
Regulations for Private Schools.
2.1.2 GROSS INSUBORDINATION
Elements:
1. Employees assailed conduct must be wilful or unintentional;
2. Wilfulness characterized by wrongful or perverse attitude;
3. The order violated must be reasonable, lawful and made known to the employee;
and
4. The order must pertain to the duties which the employee has been engaged to
discharge.
(The Coffee Bean and Tea Leaf Philippines, Inc., v. Rolly P. Arenas)
Page 27
Page 28 of 42
2012-2015 SC CASES ON GROSS INSUBORDINATION:
a) St. Lukes Medical Center vs. Maria Theresa V. Sanchez, G.R. No. 212054, 11
March 2015. - Violation of Company Rules as Wilfull Disobedience;
b) The Coffee Bean and Tea Leaf Philippines, Inc. vs. Rolly P. Arenas, G.R. No.
208908, 11 March 2015. -- Willful disobedience Company official cannot be held
liable for the dismissal of an employee unless he acted with malice or bad faith.
c) Joel N. Montallana vs. La Consolacion College Manila, et al., G.R. No. 208890, 08
December 2014. - What is willfulness in willful disobedience?
In order for willful disobedience under Art. 296 (a) [formerly Article 282 (a) of the Labor
Code] to be properly invoked as a just cause for dismissal, the conduct must be willful or
intentional, willfulness being characterized by a wrongful and perverse mental attitude.
(Nissan Motors Phil., Inc. vs. Angelo, G.R. No. 164181, 14 September 2011, 657
SCRA 520.)
Moreover, willfulness was described as attended by a wrongful and perverse mental

attitude rendering the employees act inconsistent with proper subordination. (Dongon
v. Rapid Movers and Forewarders Co., Inc. G.R. No. 163431, 28 August 2013,
704 SCRA 56)
2.1.3 GROSS AND HABITUAL NEGLECT OF DUTIES
a) gross negligence: connotes want of care in the performance of ones duties, or absence
of even slight care or diligence as to amount to a reckless disregards of the safety of the
person or property
2014 CASE: Dr. Phylis C. Rio vs. Colegio De Sta. Rosa Makati, G.R. No. 189629, 06
Aug 2014. - Gross inefficiency and incompetence, and negligence in the keeping of
school or student records, or tampering with or falsification of records.
As we already held, gross inefficiency is closely related to gross neglect because both
involve specific acts of omission resulting in damage to another (Lim v. NLRC, 328
Phil., 843,858 [1996]).
Gross neglect of duty or gross negligence refers to negligence characterized by the want of
even slight care, acting or omitting to act in a situation where there is a duty to act, not
inadvertently but willfully and intentionally, with a conscious indifference to
consequences insofar as other persons may be affected (Brucal v. Hon. Desierto, 501
Phil. 453,465-466 [2005]).
Page 28
Page 29 of 42
As borne by the records, petitioners actions fall within the purview of the above-definitions.
Petitioner failed to diligently perform her duties.
It was unrefuted that:

(1) there were dates when a medical examination was supposed to have been conducted
and yet the dates fell on weekends;
(2) failure to conduct medical examination on all students for two (2) to five (5)
consecutive years;
(3) lack of medical records on all students; and
(4) students having medical records prior to their enrollment.
b) habitual neglect: implies repeated failure to perform ones duties over a period of time
c) willful neglect of duties: imply bad faith on the part of the employee in failing to
perform his job, to the detriment of the employer and the latters business
d) Totality of infractions ruling: where the employee has been found to have repeatedly
incurred several suspensions or warnings on account of violations of company rules and
regulations, the law warrants their dismissal as it is akin to habitual delinquency. It is
the totality, not the compartmentalization of company infractions that the employee had
consistently committed, which justified the penalty of dismissal. (Meralco vs. NLRC, 263
SCRA 531 [24 Oct 1996]).
e) Absences: Habitual absenteeism and excessive tardiness are forms of neglect of duty on
the part of the employee and constitute just and sufficient cause for termination.
f) Abandonment of work: the deliberate and unjustified refusal of an employee to resume

his employment. It is a form of neglect of duty, and hence, a just cause for termination
by the employer.
For a valid finding of abandonment, two factors must be present:: (a) the failure to report
for work or absence without valid or justifiable reason; and (b) a clear intention to sever
the employer-employee relationship, with the second as the more determinative factor
which is manifested by overt acts from which it may be deduced that employee has no
more intention to work. The intent to discontinue the employment must be shown by
clear proof that it was deliberate and unjustified.
2013-2015 SC CASES ON ABANDONMENT:
Vicente Tatel v JLFP, GR 206942
The filing by an employee of a complaint for illegal dismissal with a rayer for
reinstatement is proof enough of his desire to return to work; thus, negating the
employers charge of abandonment. An employee who takes steps to protest his
dismissal cannot logically be said to have abandoned his work.
Page 29
Page 30 of 42
STANLEY FINE FURNITURE ET. AL v VICTOR GALLANO, GR 190486
To terminate employment of workers simply because they asserted their legal rights
is illegal. It violates their right to security of tenureand should not be tolerated.
To prove abandonment
The two elements must concur:
a. Failure to report for work or absence without a valid or justifiable reason; and
b. Clear intention to sever the employer-employee relationship.
Absence must be accompanied by overt acts unerringly pointing to the fact that the
employee simply does not want to work anymore. The filing of a complaint for illegal
dismissal negates the allegation of abandonment.
2.1.4 FRAUD OR WILLFUL BREACH OF TRUST
The right of an employer to dismiss an employee on account of loss of trust and confidence
must not be exercised whimsically and the employer must clearly and convincingly prove
by substantial evidence the facts and incidents upon which loss of confidence in the
employee may be fairly made to rest; otherwise, the latters dismissal will be rendered
illegal. San Miguel Corporation vs. National Labor Relations Commission and
Wiliam L. Friend Jr., G.R. No. 153983, 26 May 2009.
a) Fraud: the deliberate and false representation of fact, despite knowledge of its
falsehood, in order to induce another who relied upon it and benefit therefrom.
b) Elements of willful breach of trust leading to loss of trust and confidence:
(1) the breach must be willful and not ordinary breach [hence, done knowingly
and intentionally];
(2) employee holds a position of trust and confidence;
(3) must be in relation to the work performed; and
(4) there must exist substantial evidence, and should not be based on mere surmises,
speculations and conjectures.
c) IMPORTANT CASE:
TWO CLASSES OF POSITIONS OF TRUST.
Abelardo Abel vs. Philex Mining Corporation, G.R. No. 178976, 31 July
2009.
Page 30
Page 31 of 42
The first class consists of managerial employees. They are defined as those vested
with the powers or prerogatives to lay down management policies and to hire, transfer,
suspend, lay-off, recall, discharge, assign or discipline employees or effectively
recommend such managerial actions.
The second class consists of cashiers, auditors, property custodians, etc.. They are
defined as those who, in the normal and routine exercise of their functions, regularly
handle significant amounts of money or property.
As a general rule, employers are allowed a wide latitude of discretion in terminating the
employment of managerial personnel or those who, while not of similar rank, perform
functions which by their nature require the employers full trust and confidence. Higher
standards expected of management vis ordinary rank-and-file.
d) Examples of Position of Trust, Non-Managerial
1. COCA COLA ROUTE SALESMAN. - A route salesman regularly handles significant

amounts of money and property in the normal and routine exercise of his functions.
Hormillosas act of tampering sales invoices and issuing one with non-accredited store
could not have been performed without intent and knowledge on his part; hence the
breach of trust was willful.
(Hormillosa vs. Coca Cola, G.R. No. 198699, 09 September 2013).
2. DINING ATTENDANT- She was tasked to attend to dining guests, handle their bills and
receive their payments for transmittal to the cashier. Episcope is undeniably considered
an employee occupying a position of trust and confidence and as such, was expected to
act with utmost honesty and fidelity.
In the instant case, it is clear that Episcope was remiss in her duty to carefully account for
the money she received from the cafes guests. (Philippine Plaza Holdings v.
Episcope)
e) Examples of those not considered positions of trust and confidence. --
Inventory comptroller or clerk. An inventory clerk who is not routinely charged

with the care and custody of Century Irons money or property is not occupying a
position of trust and confidence. As such, he could not be held responsible for the
shortages of gas cylinders and therefore, he cannot be terminated on the ground of
loss and trust and confidence. (Century Iron Works Inc. vs. Baas, G.R. 184116, 19
June 2013.)
3. QUESTION: MAY LENGTH OF SERVICE BE USED TO MITIGATE PENALTY OF

DISMISSAL FOR A FIRST TIME-OFFENDER OF AN INFRACTION INVOLVING
LOSS OF TRUST AND CONFIDENCE?
(Reynaldo Moya vs. First Solid Rubber, G.R. No. 184011, 18 September 2013)
Page 31
Page 32 of 42
ANSWER: NO. Where the infraction involves dishonesty and pilferage, length of service is
immaterial.
The general rule is that an employee terminated for just causes is not entitled to separation
pay except on grounds of equity and social justice. Where the dismissal is based on
willful breach by the employee of the trust reposed in him by the employer, the
supervisory employee Moya is outside the protective mantle of the principle of social
justice. His act of concealing the truth from the company2 is a clear disloyalty to the
company which has long employed him.
The defense of the infraction being his first offense, and that he had no willful intention to
conceal the truth or cover up the mistake of his employee, is unavailing. His length of
service should be taken against him. Length of service is not a bargaining chip that can
simply be stacked against the employer. If an employer has treated his employee well,
has accorded him fairness and adequate compensation as determined by law, it is only
fair to expect a long-time employee to return such fairness with at least some respect
and honesty.
4. IMPORTANT CASES ON TERMINATION OF MANAGERS
4.1 May a bank validly terminate an assistant bank manager for loss of trust and confidence
arising from gross negligence?
(De Leon Cruz Vs. BPI, G.R. no. 173357, 13 February 2013).
After 13 years of continuous service, BPI terminated the Assistant Bank Manager on
grounds of gross negligence and breach of trust, for her failure to verify genuineness of
a forged Letter of Instructions allegedly issued by three depositors, resulting in illegal
and spurious withdrawals on their respective bank accounts.
In that regard, petitioner was remiss in the performance of her duty to approve the pre-
termination of certificates of deposits by legitimate depositors or their duly-authorized
representatives, resulting in prejudice to the bank, which reimbursed the monetary loss
suffered by the affected clients. Hence, respondent was justified in dismissing petitioner
on the ground of breach of trust. As long as there is some basis for such loss of
confidence, such as when the employer has reasonable ground to believe that the
employee concerned is responsible for the purported misconduct, and the nature of her
participation therein renders her unworthy of the trust and confidence demanded of his
position, a managerial employee may be dismissed.
4.2 Manager who alleges that he is medically unfit to return to work as yet, has to prove the
same by competent evidence. Failure to do so may lead to his valid termination.
(Wuerth Philippines. vs Ynson, G.R. No. 175932, 15 Feb 2012).
4.3. Manager validly terminated on account of loss of trust and confidence arising from huge
business losses. Manager was grossly negligent in allowing 2,130 pcs of chicken joy
rejects to be kept inside freezer with other products, causing food contamination and
threat to food safety. (Cecilia Manese vs. Jollibee Foods, G.R. No. 17-454, 11 October
2012.)
Page 32
Page 33 of 42
2.1.5 COMMISSION OF CRIME BY EMPLOYEE AGAINST EMPLOYER
Concepcion vs. Minex Import Corporation, etc., G.R. No. 153569, 24 January 2012, En
Banc).
Conviction of an employee in a criminal case is not indispensable to warrant his dismissal by

his employer (Mercury Drug Corp. vs. NLRC, 177 SCRA 580 [1989], and the fact that a
criminal complaint against the employees has been dropped by the city fiscal is not
binding and conclusive upon a labor tribunal. (See also: Starlight Plastic Industrial
Corporation vs. NLRC, 171 SCRA 315 [1989].)
2.1.6 OTHER ANALOGOUS CAUSES
INCOMPETENCE
International School Manila vs. International School Alliance Of Educators (ISAE),

G.R. No. 167286, 05 February 2014.
-- Complainant taught Spanish classes for 12 years, and took a one year break. Upon
return to school, there was only one class of Spanish available so she agreed to
teach Filipino subjects. For three consecutive years, her performance evaluation
ranged from poor, to needs improvement, to mixed (poor and needs
improvement), respectively. Thirty evaluations over three years were made on the
teacher, showing unsatisfactory performance. As such, School terminated her
services. Ruling: In all cases involving termination of employment, the burden of
proving the existence of the just causes rests upon the employer. Far from being
tainted with bad faith, respondents failings appeared to have resulted from her lack
of necessary skills, in-depth knowledge, and expertise to teach the Filipino language
at the standards required of her by the School. The Court finds that the petitioners
had sufficiently proved the charge of gross inefficiency, which warranted the
dismissal of Santos from the School. -
2014 CASE: Dr. Phylis C. Rio vs. Colegio De Sta. Rosa Makati, G.R. No. 189629, 06
Aug 2014.
Gross inefficiency and incompetence, and negligence in the keeping of school or student
records, or tampering with or falsification of records.
FLOATING STATUS
For defense of abandonment to prosper the employer must be able to distinguish the
deliberate and unjustified refusal of the employee to resume his employment.
(Vicente Tatel v JLFP GR 206942)
RESIGNATION
Voluntary resignation is defined as the act of an employee, who finds himselfin a
situation in which he belies that personal reasons cannot be sacrificed in favor of
exigency of the service; thus, he has no other choice but to disassociate himself from
his employment. (Alfaro v. Court of Appeals)
Page 33
Page 34 of 42
General rule:
An employee who voluntarily resigns is not entitled to separation pay.
Exception:
Unless stipulated in an employment contract or CBA or sanctioned by established employer
practice or policy. (CJC Trading, Inc. vs. NLRC, 246 SCRA 724 [1995]; Alfaro vs.
Court of Appeals, 363 SCRA 799 [2001]).
TERMINATION DUE TO UNION SECURITY CLAUSE:
For valid termination on this ground, the following must be proven by the employer -
-
a) the union security clause is applicable;

b) the union is requesting for the enforcement of the union security provision in the CBA;
and
c) there is sufficient evidence to support the Unions decision to expel the employee from
the union or company.
(Inguillo vs. First Philippines Scales, Inc., 588 SCRA 471 [2009]; See also: PICOP
Resources, Inc. (PRI) vs. Anacleto Taneca et. al, G.R. No. 160828, 09 August
2010).
May a union member be terminated from employment by the company upon demand by the
incumbent union pursuant to a union security clause for "acts of disloyalty" for having
signed an authorization letter to file a petition for certification election in favor of a rival
union during the freedom period while the CBA is still subsisting? (PICOP Resources,
Inc. vs. Tanega, et al., G.R. No. 160828, 09 August 2010).
Answer: NO. The mere signing of the authorization in support of the Petition for
Certification Election of FFW on March 19, 20 and 21, or before the "freedom period," is
not sufficient ground to terminate the employment of respondents inasmuch as the
petition itself was actually filed during the freedom period. Nothing in the records would
show that respondents failed to maintain their membership in good standing in the
Union. Respondents did not resign or withdraw their membership from the Union to
which they belong. Respondents continued to pay their union dues and never joined the
FFW.
3. AUTHORIZED CAUSES FOR TERMINATION
(Art. 283-284, LC)

Memory aid: DIRe2C
Page 34
Page 35 of 42
DISEASE
1 MO PAY OR MONTH FOR EVERY YEAR
OF SERVICE
INSTALLATION OF LABOR SAVING

DEVICES 1 MO PAY OR 1 MONTH FOR EVERY YEAR OF
SERVICE
RETRENCHMENT 1 MO PAY OR MONTH FOR EVERY YEAR

OF SERVICE
REDUNDANCY 1 MO PAY OR 1 MONTH FOR EVERY YEAR OF
SERVICE
CLOSURE NOT DUE TO SERIOUS 1 MO PAY OR MONTH FOR EVERY YEAR

BUSINESS LOSSES OF SERVICE
3.1 DISEASE (separation pay of 1/2 month pay for every year of service)
Employee must be suffering from a disease, and continued employment is prohibited

by law and/or is prejudicial to his health and/or that of his co-employees;
Disease cannot cannot be cured within a period of six (6) months, and said fact is
certified by a competent public health authority
If curable, then employer cannot terminate but may ask employee to take a leave;
immediately upon restoration of normal health, employer must reinstate employee
to former position.
IMPORTANT NOTE:
EMPLOYER MUST FURNISH EMPLOYEE TWO (2) WRITTEN NOTICES ON
TERMINATIONS DUE TO DISEASE
Marlo A. Deoferio v. Intel Technology Philippines, Inc.. And/Or Mike Wentling, G.R.
No. 202996, 18 June 2014.
-- The Labor Code and its IRR are silent on the procedural due process required in
terminations due to disease. Despite the seeming gap in the law, Section 2, Rule 1,
Book VI of the IRR expressly states that the employee should be afforded procedural
due process in ALL CASES OF DISMISSALS.
In SY v CA(2003) and Manly Express v Payong Jr. (2005), the Court finally
pronounced the rule that the employer must furnish the employee two written notices in
terminations due to disease, namely:
1. The notice to apprise the employee of the ground for which his dismissal is sought;
and
2. The notice informing the employee of his dismissal, to be issued after the employee
has been given reasonable opportunity to answer and to be heard on his defense.
Page 35
Page 36 of 42
These rulings reinforce the State policy of protecting the workers from being terminated
without cause and without affording them the opportunity to explain their side of the
controversy.
3.2 INSTALLATION OF LABOR SAVING DEVICES (sepn pay: 1 mo/yr of service)
Example: computerization of accounting and payroll system; mechanization of

assembly line, etc.
Presumption is that the employer does not have any serious business losses, as to
afford the purchase of labor-saving devices.
3.3 RETRENCHMENT (Sepn. Pay: 1/2 month pay for every year of service)
Retrenchment
- is the termination of employment by the employer through no fault of the
employees, and is usually resorted to by the employer primarily to avoid or minimize
economic or business reverses during periods of business recession, industrial
depression, seasonal fluctuations, re-organization or automation of the company
operations.3 Where the employer suffers serious and actual business losses,
management has the final say as to whether it will continue to risk its capital or
not.4 However, the employer bears the burden to prove his allegation of business
losses.5
Elements for valid retrenchment:
Under Article 283 of the Labor Code, in conjunction with Section 2, Rule XXIII of the
Implementing Rules of the Labor Code, the following elements must be strictly complied
with in order that the retrenchment may be considered as valid:
a) The losses expected should be substantial and not merely de minimis in extent. --
b) The substantial losses apprehended must be reasonably imminent;
c) The retrenchment must be reasonable necessary and likely to effectively prevent the
expected losses; and
d) The alleged losses, if already incurred and the expected imminent losses sought to be
forestalled, must be proved by sufficient and convincing evidence.
3.4 REDUNDANCY (Sepn pay: 1 mo/yr of service)
Redundancy
- exists where the services of an employee are in excess of what is reasonably
demanded by the actual requirements of the business operations. Succinctly stated
otherwise, a position may be declared redundant and the employee terminated
where his position has become superfluous or is a duplication of work, viz., caused
by overhiring of workers, decreased volume of business, dropping of a particular
product line or service activity.
Page 36
Page 37 of 42
3.5 CESSATION OR CLOSURE OF EMPLOYERS BUSINESS (1/2 month pay for every
year of service)
IMPORTANT CASE ON GUIDELINES IN CLOSURE OF BUSINESS:
The Supreme Court made the following summary of principles and guidelines in the case of
Manila Polo Club Employees Union (MPCEU-FUR-TUCP) vs. Manila Polo Club, G.R.
No. 172846, 24 July 2013, as follows:
1. Closure or cessation of operations of establishment or undertaking may either be partial

or total.
2. Closure or cessation of operations of establishment or undertaking may or may not be

due to serious business losses or financial reverses. However, in both instances, proof
must be shown that:
(1) it was done in good faith to advance the employer's interest and not for the purpose
of defeating or circumventing the rights of employees under the law or a valid
agreement; and
(2) a written notice on the affected employees and the DOLE is served at least one
month before the intended date of termination of employment.
3. The employer can lawfully close shop even if not due to serious business losses or
financial reverses but separation pay, which is equivalent to at least one month pay as
provided for by Article 283 of the Labor Code, as amended, must be given to all the
affected employees.
4. If the closure or cessation of operations of establishment or undertaking is due to serious

business losses or financial reverses, the employer must prove such allegation in order
to avoid the payment of separation pay. Otherwise, the affected employees are entitled
to separation pay.
5. The burden of proving compliance with all the above-stated falls upon the employer.
Guided by the foregoing, the Court shall refuse to dwell on the issue of whether
respondent was in sound financial condition when it resolved to stop the operations of its
F & B Department.
As stated, an employer can lawfully close shop anytime even if not due to serious business
losses or financial reverses. Furthermore, the issue would entail an inquiry into the
factual veracity of the evidence presented by the parties, the determination of which is
not Our statutory function. Indeed, petitioner is asking Us to sift through the evidence
on record and pass upon whether respondent had, in truth and in fact, suffered from
serious business losses or financial reverses.
Page 37
Page 38 of 42
5. PROCEDURE FOR TERMINATION:
5.1 GENERAL RULE:
The twin requirements of NOTICE and HEARING are the essential elements of due
process in termination cases, which cannot be dispensed with without violating the
constitutional right to due process
NOTICE REQUIREMENT, MUST SUBSTANTIATE INFRACTION, GENERAL NARRATIVE

NOT SUFFICIENT.
(IMPORTANT VELASCO CASE: King of Kings Transport vs. Mamac, 526 SCRA116
(29 Jun 2007).
-- In order to intelligently prepare the employees for their explanation and defenses, the
notice should contain a detailed narration of the facts & circumstances that will serve
as the basis for the charge against the employee a general description of the
change will not suffice.
EXCEPTION: If no due process but with just cause, then Agabon ruling to apply.
The denial of the fundamental right to due process being apparent, the dismissal order in
disregard of that right is void for lack of jurisdiction. The cardinal precept is that where
there is a violation of basic constitutional rights, courts are ousted from their
jurisdiction. The violation of a partys right to due process raises a serious jurisdictional
issue which cannot be glossed over or disregarded at all. It is well settled that a decision
rendered without due process is void ab initio and may be attacked at any time directly
or collaterally be means of a separate action, or by resisting such decision in any action
or proceeding where is it invoked. (Salva vs. Valle, G.R. No. 193773, 02 April 2013;
En Banc, citations omitted.)
5.2 ILLEGALITY OF THE ACT OF DISMISSAL - DISMISSAL WITHOUT JUST CAUSE:
Remedies under the Labor Code:
1. Reinstatement to his former position without loss of seniority rights. If no longer available
nor any equivalent position, then separation pay to be given in lieu or reinstatement
computed 1 month pay for every year of service.
2. Payment of FULL backwages corresponding to the period from his illegal dismissal up to
actual reinstatement.
3. Damages plus attorneys fees.
Page 38
Page 39 of 42
5.3 ILLEGALITY IN THE MANNER OF DISMISSAL - DISMISSAL WITHOUT DUE

PROCESS: (WENPHIL, SERRANO AND AGABON RULING)
In any event, NO REINSTATEMENT. However, as regards penalty for non-compliance with

due process requirements, the newest Supreme Court ruling circa November 2004 is
that the employer shall be sanctioned with penalty of P30,000.00 in accordance with the
Agabon vs. NLRC case, which now affirms the Wenphil doctrine and abandoning the
Serrano ruling.
Agabon vs. NLRC ruling, G.R. No. 158693, 11/17/2004

- where there was substantial evidence proving just cause BUT that due process was not
followed, the termination will be UPHELD (considered valid and effective) but the
employee will be penalized the amount of P30,000.00-50,000.00 (see discussion on
difference below).
DIFFERENCE IN SEPARATION PAY.

-- (Jaka Food Processing v. Pacot, G.R. No. 151378; 28 March 2005)
If the dismissal is based on a just cause under Article 282 but the employer failed
to comply with the notice requirement, the sanction to be imposed upon him should
be tempered because the dismissal process was, in effect, initiated by an act
imputable to the employee. Hence: P30,000.00 nominal damages for non-compliance
with due process, because employee committed an infraction.
On the other hand, if the dismissal is based on an authorized cause under Article
283 but the employer failed to comply with the notice requirement, the sanction
should be stiffer because the dismissal process was initiated by the employers
exercise of his management prerogative. Hece, P50,000.00 nominal damages for
non-compliance with due process, because employee did not commit anything wrong
but that the termination was due to an exercise of management prerogatives.
Should employee seek damages on this account, may file with regular court. [Governed
exclusively by the Civil Code. (Shoemart vs. NLRC, supra.)]
6. ON NOTICE AND HEARING
Dept. Order No. 10, Article V; IRR B5 R14 S1-11
6.1 TWO NOTICES REQUIRED:
1ST NOTICE: NOTICE OF APPRAISAL, which is a written notice served on the employee
specifying the ground or grounds of termination, and giving the employee reasonable
opportunity within which to explain his side
2ND NOTICE: NOTICE OF TERMINATION, which is a written notice of termination served
upon the employee, indicating that upon due consideration of all the circumstances,
grounds have been established to justify his termination.
Page 39
Page 40 of 42
6.2 HEARING:
The existence of a formal trial-type hearing, ALTHOUGH PREFERRED, is NOT absolutely

necessary to satisfy an employees right to be heard. (Esguerra vs. Valle Verde
Country Club, 672 SCRA 177 [2012]).
a hearing or a conference during which the employee concerned, with the assistance
of counsel if he so desires, is given the opportunity to respond to the charge, to
present his evidence, or to rebut the evidence presented against him.
note that a formal hearing (as in the manner of regular courts) is not required; only
substantial evidence is necessary.
There is no necessity for a formal hearing where an employee admits responsibility
for the alleged misconduct. It is sufficient that she be informed of the findings of
management and the basis of its decision to dismiss her.
6.3 Right to counsel on the part of the employee is this mandatory and
indispensable as part of due process?
NO. In the case of Lopez vs. Alturas Group, 11 April 2011, the Supreme Court ruled
that the right to counsel and the assistance of one in investigations involving
termination cases is neither indispensable nor mandatory, except when the employee
himself requests for one or that he manifests that he wants a formal hearing on the
charges against him.
7. ON REINSTATEMENT:
Where the former position is no longer available, the employee must be reinstated to
an equivalent position.
Where the reinstatement is no longer viable in view of the strained relations between
the employer and employee, or if the employee decides not to be reinstated, the
employer shall pay him separation pay in lieu of reinstatement
Nature of the order of the Labor Arbiter on reinstatement. --
The reinstatement order of the Labor Arbiter is immediately executory even pending appeal.
(Article 223 (3), Labor Code; cf Pioneer Texturizing vs. NLRC (280 SCRA 806 [1997]).
Hence, it is the obligation of the employer to immediately admit the employee back to work
or reinstate him in the payroll at his option. Otherwise, the employer will be held liable
for backwages from the date of notice of the order (International Container Terminal
Services, Inc. vs. NLRC, 360 Phil. 527 [1998]), up to the date of employees actual
or payroll reinstatement.
Thus, it was held in Garcia vs. Philippine Airlines, Inc. (531 SCRA 574 [2007]), that
failure on the part of the employer to exercise the options in the alternative, the
employer must pay the employees salaries.
Page 40
Page 41 of 42
2015 CASE: Smart Communications, Inc., et al. vs. Jose Leni Z. Solidum, G.R. No.
204646, 15 April 2015. -- In illegal dismissal cases, if the LA ordered reinstatement,
and the employer failed to reinstate the employer either actually or in the payroll, and
the NLRC on appeal reversed the decision of the LA, the employee is entitled to the
accrued salaries and other benefits from the date of the LAs decision up to the date the
NLRC decision becomes final and executory.
8. ON BACKWAGES
8.1 FULL BACKWAGES For termination effected after effectivity of RA 6715
FULL backwages to be computed from the time of termination to the time of actual
reinstatement.
With the passage of RA 6715 which took effect on 21 March 1989, Article 2709 of the Labor
Code was thus amended to include payment of full backwages. The Mercury drug rule
which limited the award of backwages of illegally dismissed workers to three (3) years
without deduction or qualification, is no longer applicable. (Ferrer vs. NLRC)
8.2 BASIS FOR COMPUTING BACKWAGES:
The workers are to be paid their backwages fixed as of the time of the dismissal, i.e.,
unqualified by any wage increases or other benefits that may have been received by
their co-workers. Awards including salary differentials are not allowed. (Central
Azucarrera de Tarlac vs. Sampang)
8.4 2014-2015 SC CASES ON COMPUTATION OF WAGES/BACKWAGES:
METRO GUARDS v HILONGO

- Separation and backwages must be computed up to that point of finality of the
decision.
- It is settled that the computation of the monetary awards due to illegally dismissed
employee must continue to run until the final termination of the case on appeal. The
recomputation of the monetary awards is a necessary consequence that flows from
the nature of the illegal dismissal. Hence, separation pay and backwages must be
computed up to that point of the finality of the decision to the account for the time
the illegally dismissed employee should have been paid his salary and benefits
entitlements.
CONCEPCION VILLENA v BATANGAS II ELECTRIC
Page 41
Page 42 of 42
- A decision which calls for the payment of other benefits should include in the
computation all the fringe benefits that the dismissed employee are entitled to
receive at the time.
MONACHITO AMPELOQUIO v JAKA DISTRIBUTION INC.

- Scope of wages reinstatement without loss of seniority rights and other
privileges.
- The issue in this case is the scope viz-a-viz wages reinstatement without loss of
seniority rights and other privileges. Seniority rights refer to the creditable years of
service in the employment record of the illegally dismissed employee as if he or she
never ceased working for the employer. In other words, the employees years of
service is deemed continuous and never interrupted. Such is likewise the rationale
for reinstatements twin relief of full backwages. (Labor Code, Article 279.)
Page 42

Labor 7

Încărcat de

Informații document

Titlu original

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

Labor 7

Încărcat de

Drepturi de autor:

Formate disponibile

Page 1 of 42

1. Kinds of Union Security clauses

3.1 General rule on coverage of union security clause:

Federation of Unions in BPI Unibank, G.R. No. 164301, 10 August 2010; En

3.2 Kinds of union security clauses:

o Modified Union Shop Agreement. -- A union shop agreement with a provision

o Maintenance of membership shop. -- There is maintenance of membership shop when

o Open shop -- An arrangement on recruitment whereby an employer may hire any

o Agency shop -- An arrangement whereby non-members of the contracting union must

2. ULP in collective bargaining, instances

a. Bargaining in bad faith

1. Individual bargaining considered unfair labor practice for an employer operating

2. Surface bargaining is defined as going through the motions of negotiating

G.R. No. 168612 December 10, 2014

PHILIPPINE ELECTRIC CORPORATION (PHILEC), Petitioner,

Philippine Electric Corporation (PHILEC) is a domestic corporation "engaged in the

As to PHILECs claim that applying Article X, Section 4 would result in salary

Voluntary Arbitrator Jimenez dismissed PWUs claim of unfair labor

The Court of Appeals affirmed Voluntary Arbitrator Jimenezs decision. It agreed

T&H SHOPFITTERS CORP. ET AL. vs. T&H SHOPFITTERS CORP. UNION

On September 7, 2004, the T&H Shopfitters Corporation/ Gin Queen Corporation

3rd CAUSE: A memorandum was issued by petitioner Ben Huang (Huang),

Whether or not ULP acts were committed by petitioners against respondents.

ULP were committed by petitioners against respondents. Petitioners are being

Article 257. Unfair labor practices of employers.It shall be unlawful for an

The questioned acts of petitioners, namely: 1) sponsoring a field trip to Zambales

5. Manila v Mining corp

MANILA MINING CORP. EMPLOYEES ASSOCIATION-FEDERATION OF FREE

Respondent (MMC) is a publicly-listed corporation engaged in large-scale mining for gold

The Union attributes:

ISSUE: Whether or not the lay-off is illegal or is considered as an unfair labor

MMC seeks refuge in Article 286.

Article 283 of the Labor Code applies to MMC.

Petitioner FVCLU-PTGWO is the recognized bargaining agent of the rank-and-file

Art 253-A of the Labor Code provides:

As applied in this case:

7. Strikes, picketing and lockouts

STRIKES, PICKETING AND LOCK-OUTS

- Examples of ULP under Articles 248-249, LC: (1) interference, restraint or

2.3.2 Conciliation proceedings NCMB to immediately call parties involved to a conference

8. Club v Benjamin bautista

G.R. No. 168406 January 14, 2015

Club Filipino Employees Association (CLUFEA) is a union representing the employees of

[AS TO THE LEGALITY/ILLEGALITY OF THE TERMINATION]

[AS TO THE RES JUDICATA ISSUE]

1. whether Club Filipino's filing of the Supplemental Motion for Reconsideration

illegal strike case

The Supplemental Motion for reconsideration must be denied with finality.

The elements of res judicata are:

The union officers were illegally dismissed.

9. Law on termination/disciplinary cases; grounds for termination

BASIC PRINCIPLES IN DISCIPLINARY CASES

1. CODE OF CONDUCT VS. SECURITY OF TENURE

Balancing of interests in disciplinary cases

MANAGEMENT VS. LABOR

Management prerogatives Security of tenure

HOWEVER, employee must first prove the fact of dismissal.

Note1: Failure of employer to submit documents which are presumed to be in its

Note2: IMPORTANT CASE ON SUBSTANTIAL EVIDENCE. (Alilem Credit Cooperative vs.

c) In the imposition of penalty, whether suspension or termination, the same must be

2. GROUNDS FOR TERMINATION

2.1 JUST CAUSES FOR TERMINATION (Art. 282, LC)

2.1.2 SERIOUS MISCONDUCT