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As of now, their picketing remains valid and the The Secretary of the DOLE motu proprio assumed
employers cannot impede on their right to exercise jurisdiction over the strike of workers in a private bank.
the same. However, should it turn into illegal When the striking workers decided to return to work,
picketing as in the case wherein there is a moving the Company refused them entry.
picket which blocks the entry and exit of the If you were the counsel for the striking workers, what
company premises, the employer may take action to remedy do you have against the management's action?
enjoin the picketing employees. Mr. JMMarquez
The facts, as I gathered from you, are as follows: Very truly yours,
In my opinion, the other legitimate labor union does Dear Mr. JMM Marquez,
not have any legal personality to assail the
registration of the certified bargaining union's In a case of cancellation of a union’s registration,
there are two kinds. The first kind is a petition for Mr. JMMarquez
cancellation of union registration which may be filed
by any interested party and the second kind is a
voluntary cancellation of registration by the members
Dear Mr. JMMarquez,
themselves.
Good day! Here is the opinion that you requested.
In my opinion, the act of the Mayor without the
Now as expressed by our labor laws, only those
knowledge of the school in coercing and intimidating
grounds under Article 247 of the Labor Code, which
the three workers into abandoning the union does not
I have already mentioned previously, and a violation
constitute an Unfair Labor Practice and therefore the
of any of the enumerations in Article 249 of the same
union cannot file a case against the City Mayor and
Code, can be the bases for the cancellation of union
the school for having no cause of action.
registration.
As provided for in the Labor Code, Unfair Labor
Practices are offenses committed by the employer or
Since in the case at bar, the other legitimate labor
labor organization which violate the constitutional
union existing in the same bargaining unit wants to
right of workers and employees to self organization.
have the other union’s registration cancelled, there
ULP acts are inimical to the legitimate interests of
must be an existence of any of those grounds from
both labor and management, disrupt industrial peace
which a cancellation of union registration can hold
and hinder the promotion of healthy and stable labor-
water. Unfortunately, none of them exists. Hence, the
managament relations.
other labor union has no legal standing simply
It is worthy to note that the requisites for there to
because the law requires of it to anchor its claim on
commit Unfair Labor Practices are.
one of the grounds laid out by law.
1. There is employer-employee relationship between
the offender and offended.
A contract is a law between the parties and it may not
2. The act done is expressly defined in the code as an
be assailed by one who is not a privy thereof.
act of unfair labor practice.
In the given situation, it cannot be denied that it is an
But fret not, because there is still a remedy. The very
act involving Unfair Labor Practice for it involves
union constrained to accept an illegal and clearly
coercion and the code expressly provides that it shall
unfair stipulation, in fact, is given by the law a legal
be unlawful for an employer to interfere with, restrain
standing to voluntarily dissolve itself.
or coerce employees in the exercise of their right to
self organization. However, it is equally important
Under the Labor Code, the registration of a legitimate
that aside from that act, there should be an employer-
labor organization may be cancelled by the
employee relationship between the offender and the
organization itself. Provided, That at least two-thirds
offended which is wanting in this particular case. The
of its general membership votes, in a meeting duly
City mayor who coerced and intimidated the three
called for that purpose to dissolve the organization:
workers into abandoning the union is not the
Provided, further, That an application to cancel
employer of the workers mentioned. The City mayor
registration is thereafter submitted by the board of the
merely recommended them to the USC who are in
organization, attested to by the president thereof.
fact and in law the employer of the workers. And
considering that USC or the school has no knowledge
Clearly, if the members of the union have felt the
and even no involvement of such coercion and
harshness of the stipulation, it can by all means,
intimidation, there is no Unfair Labor Practice to
dissolve the union itself.
speak of.
Hence, the union has no cause of action against the
I hope it is all clear now. I very much appreciate your
City Mayor since it is not the employer of the
great attention to detail on this important matter.
employees, and also no cause of action against the
school (the employer) since it is not the one which
Thank you very much.
acted on the coercion and intimidation.
What the union may do is probably to file an
Respectfully yours,
administrative complaint against the City Mayor in
its capacity as a mayor for the coercion and
Shaleem M. Tiannok
intimidation which as a public official is not legal and
proper.
Dear Ms. Tacuyan,
Please let me know if I can be of further service to
Upon the recommendation of the City Mayor of you in this matter.
Cebu, USC school hired three ward leaders of the Very truly yours,
CARLA MAE F. TACUYAN
Mayor. Three months after their employment, these
three workers organized a labor union. Upon learning Ms Tacuyan,
of this, the Mayor without the knowledge of the
school, coerced and intimidated the three workers Will the City Mayor not fall within the meaning of
into abandoning the Union. "employer" as it is defined by the Labor Code?
What action if any may the Union file against the Is there no other laws where the City Mayor can be
City Mayor and the school? Please advise. held liable?
you in this matter.
Mr JMMarquez
Respectfully yours,
Dear Mr. JMMarquez, CARLA MAE F. TACUYAN
I would like to clarify and answer otherwise. The USC is a private educational institution, which has 3
City Mayor is liable of unfair labor practice being departments, the elementary, high school and college,
considered as an employer as defined by the Labor all of which are controlled by one Board of Trustees,
Code. serviced by one cashier and on registrar. It has a full
complement of 500 teachers. I have convinced my
“Employer” includes any person directly or indirectly
in the interest of an employer in relation to an fellow teachers that the best way to secure more
employee and shall include the government and all its benefits and better working conditions is to formally
branches, subdivisions and instrumentalities, all organize a Union. We are however undecided as to
government owned and controlled corporations and whether to form a single Union for the entire faculty
institutions, including non-profit private institutions, staff or a separate Union for each department.
or organizations. Moreover, the term shall not include
any labor organization or any of its officers or agents, Kindly advise and guide us.
except when acting as employer.
Mr. JMMarquez
In the given situation, the workers are ward leaders of
the City Mayor and the mayor himself recommended
them to USC and were actually hired. After 3 months Dear Mr. JMMarquez,
of their employment, these 3 workers organized a
labor union. Upon learning of this, the Mayor without Good Day!
the knowledge of the school, coerced and intimidated
the three workers into abandoning the Union. Here is the opinion that you requested.
The City Mayor may not be a direct employer of the The facts, as I gathered from you, are as follows:
3 workers, however he may be considered an indirect
employer despite only his recommendation to USC USC has three departments which consist the
because it is noteworthy that the 3 workers are “ward elementary, high school and college which has 500
leaders” of the City Mayor even before the teachers and they are divided what to form whether
recommendation. It is clearly defined by the Labor single or separate union.
Code that an “employer ” includes any person
directly or indirectly in the interest of an employer in The question you pose is whether to form a single
relation to an employee. union for the entire faculty staff or a separate union
for each department.
And since the requisites for there to have unfair labor
practice is that: My advice with regards to this case is that:
1. There is employer-employee relationship between
the offender and offended. I advise that it would be better to have a single union
2. The act done is expressly defined in the code as an for the entire faculty staff because all three (3)
act of unfair labor practice. departments have the commonality of interest among
the 500 teachers – which is to teach, which they the
The City Mayor undoubtedly is guilty of unfair labor same type of work and to receive the fruits of their
practice for being considered an employer of the 3 endeavors.
workers who coerced and intimidated them in
abandoning the union which violate the constitutional Under the substantial mutual interest rule, the
right of workers and employees to self organization. employees sought to be represented by the collective
bargaining agent must have substantial interest in
On the other hand, the school being the direct terms of employment and working conditions as
employer still cannot be considered guilty of unfair evinced by the type of work they perform. It is
labor practice since it has no knowledge and characterized by similarity of employment status,
participation on such acts of unfair labor practice same duties and responsibilities and substantially
done by the City Mayor. similar compensation and working condition. (San
Miguel Corporation Employees Union-PTGWO vs.
Therefore the 3 workers have a cause of action Confesor, G.R. No. 111262, Sept. 19, 1996, 262
against the City Mayor for unfair labor practice SCRA 81, 98).
which should be filed to the Labor Arbiter within 1
year from the accrual of the action. Very truly yours,
Thank you for reposing your confidence in the Very truly yours,
undersigned as regards the matter of your dismissal
from the mining corporation. Michael Roa
Thank you for your question. It was equally emphasized in Victorias Milling Co. v.
Victorias Manapla Workers Organization v. Court of
We believe your query concerns itself with the Industrial Relations and Free Visayan Workers, it
legality of executing a new Collective Bargaining was held that the petition for certificate election does
Agreement (CBA) in an organized establishment not bar the employer and the incumbent union from
during the freedom period and at a time when a renegotiating and renewing the expiring CBA. Hence
certification election is to be conducted. a CBA may be renegotiated before, during or after
the 60 day freedom period. But if during such period
Our answer is in the affirmative. Your company acted a PCE is filed, the Med-Arbiter can order the
legally in the circumstances. suspension of the renegotiation until the
representation proceedings finally end. It is clear that
First, allow us to elucidate the context of your inquiry the Code allows a PCE during the freedom period to
based on the nature of a CBA: preserve democratic contest between union and in the
same breath by allowing CBA renegotiations during
A CBA, according to the Bureau of Labor Relations, the same freedom period, nonetheless the law
is “a contract executed upon request of either the safeguards the opportunity to possibly upgrade the
employer or the exclusive bargaining representative employee’s employment condition. If this were not
of the employees, incorporating the agreement the rule, there would be a gap or interregnum during
reached after negotiations with respect to wages, which no agreement would govern, that is, from the
time the old collection bargaining contract expired to employees be excluded from the scope and coverage
the time petition for certification election is decided
of the CBA since they are not regular and permanent
and a new agreement is entered into with the Union
that may be duly certified as the proper bargaining employees. Please advise.
unit. Without any agreement to govern the relations
Regards,
between labor and management in the interim, the
situation would well be productive of confusion and Mr. JMMarquez
result in breaches of the law by either party. President
Moreover, certification elections are exclusively the On the Go Resto, Inc.,
concern of employees so much so that the only
Cebu City
instance when an employer may concern itself with
employee representation activities is when it has to
file the petition for certification election because
there is no existing CBA in the unit and it was
requested to bargain collectively, pursuant to Article
258 of the Labor Code.
Dear Mr. JMMarquez,
In gist, the case declares that “a struggle between
contending labor unions must not jeopardize the Thank you for your inquiry.
implementation of a CBA that is advantageous to
employees.” It is my understanding that your concern revolves
around the legality of a provision in the Collective
But let it be stressed that when a collective Bargaining Agreement (CBA) which excludes
bargaining agreement is entered into at the time when probationary members from the scope and coverage
the petition for certification election had already been of such contractual agreement.
filed by a union and was then pending resolution, the
said collective bargaining agreement cannot be The answer would be in the affirmative. The law
deemed permanent, precluding the commencement of does not prohibit such exclusion.
negotiations by another union with the management.
In the meantime, so as not to deprive the workers of With the CBA being a contract by nature, the parties
the benefits of the said agreement, it shall be are free to stipulate terms that they deem suitable to
recognized and given effect on a temporary basis their circumstances for as long as it is not contrary to
subject to the results of the certification election. It law, morals and public policy. Equally important is
may be gleaned from these rulings that the company that the terms and conditions of employment, as fixed
acted within the bounds of the law in this and administered in the CBA, should not be below
circumstance, considering that the CBA was adopted the minimum standards of law.
in order to grant salary increases to its employees.
Hence, as a general rule that a CBA signed while In relation to probationary employees, the CBA may
there is a pending representation case is invalid. exclude them from the scope and coverage for as
However, in certain circumstance, the law allows the long as such exclusion is without prejudice to their
adoption of a CBA. But the CBA shall only be right to security of tenure as probationary employees
recognized and enforced on a temporary basis, and to the minimum standards of employment as
subject to the results of the certification election. The required by law. Thus, in your case, the exclusion can
agreement may be continued in force if the union that be legally and validly done as was provided for in the
negotiated it is certified again as the exclusive existing CBA.
bargaining representative or may be rejected and
replaced in the event the rival union emerges as the I hope I have addressed your concern.
winner.
Very truly yours,
We hope we have adequately shed light to your Michael Roa
problem.
I am of the opinion that the independent union acted I hope this addresses your concerns.
within the bounds of law.
Respectfully yours,
An agreement negotiated by the employees'
bargaining agent should b e ratified or approved by Ms. Tracy Sios-e
the majority of all the worker s i n the bargaining
unit. This requiremen t is found in Article 237 of the
Labor Code. However, the CBA was never ratified Dear Ms. Salazar,
by the covered employees.
A certified bargaining Union submitted to the
Dear Ms. Salazar,
However in Article 268 of the Labor Code it provides A certified bargaining Union submitted to the employer a
employer a bargaining proposal for a Php1,000
that: In organized establishments, when a verified monthly across-the-board wage increase per covered empl
monthly across-the-board wage increase per covered
petition questioning the majority status of the unreasonable proposal in view of the prevailing poor busin
incumbent bargaining agent is filed before the employee. Believing that it was an utterly
Union that it was useless to meet on such a proposal, and m
Department of Labor and Employment within the unreasonable proposal in view of the prevailing poor
agree to it.
sixty-day period before the expiration of the business climate, the management told the Union that
collective bargaining agreement, the Med-Arbiter If you were the Union's counsel, what legal action
it was useless to meet on such a proposal, and Mr. JMMarquez
shall automatically order an election by secret ballot
when the verified petition is supported by the written management could not be compelled to agree to it.
consent of at least twenty-five percent (25%) of all If you were the Union's counsel, what legal action
the employees in the bargaining unit to ascertain the
will of the employees in the appropriate bargaining may you take on thematter?
unit.” Mr. JMMarquez
The last sixty (60) days immediately preceding the
expiration of the five-year CBA is referred to as the
freedom period. During the freedom period, a petition Dear Mr. J.M. Marquez,
for certification election can be filed but not before
nor after such period. Thus, no petition for
certification election may be filed before the onset of
the freedom period nor after such period. Thank you for your inquiry. I shall now attempt to
Furthermore, Section 1, Rule VIII of the adequately address your concerns to the best of my
Implementing Rules of the Labor Code (as amended knowledge of the specific laws involved.
by Department Order No. 40-I-15), Paragraph 4: “In
all cases, whether the petition for certification First and foremost, let it be remembered that it is the
election is filed by an employer or a legitimate labor joint responsibility of the employer and the employee
organization, the employer shall not be considered a to establish terms and conditions of employment.
party thereto with a concomitant right to oppose a This is in accordance with the principle of co-
petition for certification election. The employer’s determination. In so establishing such terms and
participation is only limited to: (1) being notified or conditions of employment, the employer and the
informed of petitions of such nature and (2) employee must take into consideration existing laws
submitting the list of employees during the pre- and regulations. This is no less enshrined in Article
election conference should the Mediator-Arbiter act XIII Section 3of the 1987 Constitution.
favorably on the petition. However, manifestation of
facts that would aid the Mediator-Arbiter in In this jurisdiction, the Labor Code is replete with
expeditiously resolving the petition such as existence provisions imposing the duty to bargain collectively.
of a contract-bar, one year bar or deadlock bar may Article 262 [252] specifically requires the
be considered. The contract-bar rule shall apply in performance of a mutual obligation to meet and
convene promptly and expeditiously in good faith for
the purpose of negotiating an agreement with respect deadlock as a valid reason to declare a strike or
to wages, hours of work and all other terms and lockout which should be pursued to resolve the
conditions of employment including proposals for impasse. On the alternative, a bargaining deadlock
adjusting any grievances or questions arising under may be resolved through arbitration through
such agreement and executing a contract voluntary arbitration as ruled in Manila Central Line
incorporating such agreements if requested by either Corp v. Manila Central Line Free Workers Union.
party but such duty does not compel any party to
agree to a proposal to make concessions. Moreover, To summarize, the refusal to bargain is in effect a
the Labor Code of the Philippines provides in Article violation of the duty to bargain making it an unfair
263 [253] to wit: labor practice. But when this is due to valid reasons
such as depressing business atmosphere, these may
When there is a collective bargaining agreement, the be valid as this is bargaining in good faith. However,
duty to bargain collectively shall also mean that the union may pursue other remedies to resolve the
neither party shall terminate nor modify such bargaining deadlock such as thru strike, thru
agreement during its lifetime. However, either party grievance machinery or through voluntary arbitration.
can serve a written notice to terminate or modify the
agreement at least 60 days prior to its expiration date. I hope I have sufficiently answered you queries.
It shall be the duty of both parties to keep the status
quo and to continue in full force and effect the terms Sincerely,
and conditions of the existing agreement during the
60 day period and or until a new agreement is Salazar, K.
reached by the parties.
There is therefore no question that the duty to bargain
is imposed on both the employer and the employee.
So much so that under Article 248 the violation of
such duty to bargain collectively may be a form of
unfair labor practice. Hence, the law imposed the ___________________________________________
mutual obligation to meet and convene for purposes ________________
provided by law, one of which is to negotiate an Question:
agreement on the subject of wage, which finds
application in your dilemma. Additionally the Dear Team Parado,
employer has the obligation not to terminate or
modify the CBA during its lifetime. The failure or The Company adopted a 3 day workweek which is a
refusal to meet and convene, evading the mandatory flexible work arrangement expressly recognized in
subjects of bargaining or bad faith in bargaining and the CBA whenever the company incurs business
gross violation of the CBA are forms of unfair labor losses. This was immediately protested by the
practice.
certified bargaining Union alleging that the
At the onset, it may be said that the employer does conditions for such shortened workweek were not
have an obligation to collectively bargain with the met. However, when the Union's demand for the
union. But however, in the very same article invoked, restoration to normal full week was denied by the
it provides that such duty “does not compel either
party to agree to a proposal or require the making of a company, the Union filed a notice of strike with the
concession.” Hence, such refusal and the rejection of NCMB, alleging bargaining deadlock.
the economic demands of the union by the employer
is justified when his reasons are grounded on the fact If you were the counsel for the Company, how will
that he is operating at a loss, or on a low profit you address the Union's claims?
margin, or in a depressed industry, for as long as he
Mr. JMMarquez
continues to negotiate.
Clearly the issue on the special assessment is an Thus, the University did not act in accordance with
inter-union dispute — a dispute between and among law in refusing to accept the union members and
labor unions, herein between Union A and Union B. union officers of Union by reason of its non-
"Inter-Union Dispute" refers to any conflict between compliance with the law – both substantive and
and among legitimate labor unions involving procedural.
representation questions for purposes of collective
bargaining or to any other conflict of dispute between I hope to have answered all your queries.
legitimate labor unions.
Respectfully yours,
II. Legality of the Strike Shenna Jane Tan Parado
Follow-up Question:
Ms Pimentel, ___________________________________________
___________________________________________
If it did not act legally, did it commit any punishable ____________________________
offense?
Question:
Mr JMMarquez
Dear Ms. Pontanar,
Article 257 of the Labor Code of the Philippines, as 1000 non-teaching personnel, who are paid on
renumbered, makes it unlawful “for any person to monthly basis.
restrain, coerce, discriminate against or unduly
interfere with employees and workers in their In one public assembly, all the school's personnel,
exercise of the right to self-organization. Such right
shall include the right to form, join, or assist labor both teaching and non-teaching decided to form one
organizations…” This provision recognizes that no independent Union. After it has been issued a
person, employer or non-employer, may abridge the
rights of the employees to self-organization, certificate of registration, the Union filed a petition
otherwise, he can be liable for unfair labor practice for certification election, to represent all these school
(ULP). personnel.
Unfair labor practice may be committed by the
employer in several ways. Article 259 of the Labor If you were the Med-Arbiter, will you give due
Code enumerates the instances when ULP may be course to the petition and order the holding of only
committed:
one certification election for all the school personnel?
(a) To interfere with, restrain or coerce employees in
the exercise of their right to self-organization; Kindly advise and guide us.
xxx
(d) To initiate, dominate, assist or otherwise interfere
Mr. JMMarquez
with the formation or administration of any labor
organization, including the giving of financial or
other support to it or its organizers or supporters;
xxx Answer:
Given these provisions of law, it is worth noting that
the right of self-organization and the right of March 8, 2016
association are fundamental rights of the employees.
Any abridgment of these rights by the employer is
considered as an unfair labor practice which is Dear JMMarquez:
punishable by law. Accordingly, the refusal of USC
to recognize the local Union, and its assertion that the
local Union should disaffiliate itself with the mother Thank you for trusting me with your query.
federation is a blatant violation of the rights of the
employees to organize and associate. This warrants a The facts, as I’ve gathered from you are as follows:
rank-and-file and supervisory employees is no labor
USC is a private educational institution with three organization at all. It cannot, for any guise or
departments of elementary, high school and college, purpose, be a legitimate labor organization. Not being
controlled by the Board of Trustees and serviced by one, an organization which carries a mixture of rank-
one cashier and one registrar. 500 teachers are paid and-file and supervisory employees cannot possess
on an hourly basis. Non-teaching personnel are paid, any of the rights of a legitimate labor organization,
on the other hand, on a monthly basis. including the right to file a petition for certification
election for the purpose of collective bargaining.”
Hereinafter, all of these personnel decided to form But in your case, there is no co-mingling of the rank
one independent Union. It had been granted a and file and supervisory employees.
certificate of registration, and thereafter, the Union
filed a petition for certification election, to represent Now, a certification election proceeding directly
all these school personnel. involves two (2) issues namely: (a) the proper
composition and constituency of the bargaining unit;
Now you asked me to decide the matter as if I were and (b) the validity of majority representation claims.
the Med-Arbiter. It is therefore incumbent upon the Med-Arbiter to
rule on the appropriateness of the bargaining unit
I will give due course to the petition and order the once its composition and constituency is questioned.
holding of only one certification election for all the
school personnel. Section 1 (q), Rule I, Book V of the Omnibus Rules
defines a "bargaining unit" as a group of employees
Under the law, an independent union refers to a labor sharing mutual interests within a given employer unit
organization operating at the enterprise level that comprised of all or less than all of the entire body of
acquired legal personality through independent employees in the employer unit or any specific
registration under Article 234 of the Labor Code and occupational or geographical grouping within such
Rule III, Section 2-A of these Rules. And corollary to employer unit. This definition has provided the
that, it is the Med-Arbitration Unit that conducts "community or mutuality of interest" test as the
hearings and decides certification election or standard in determining the constituency of a
representation cases, inter/intra-union and other collective bargaining unit.
related labor relations disputes.
In University of the Philippines vs. Ferrer-Calleja,
A Med-Arbiter refers to an officer in the Regional 211 SCRA 451 and as present in your case, the
Office or in the Bureau authorized to hear and decide employees of petitioner may be categorized into (2)
representation cases, inter/intra-union disputes and general classes: one, the teaching staff; and two, the
other related labor relations disputes, except non-teaching-staff. It would seem obvious that the
cancellation of union registration cases. teaching staff would find very little in common with
the non-teaching staff as regards responsibilities and
Now, the grounds for the dismissal of the petition are function, working conditions, compensation rates,
found in Section 14, DO 40-F-03. Of the eight social life and interests, skills and intellectual
grounds, none is present in your situation. pursuits, etc. These are plain and patent realities
Additionally, a prohibited ground to dismiss the which cannot be ignored. These dictate the separation
petition is alleged inclusion of disqualified of these two categories of employees for purposes of
employees in a union. collective bargaining.
In the case of Holy Child Catholic School vs. Tomas Though there are differences in the nature of work,
G.R. No. 179146; July 23, 2013, the Med-Arbiter hours and conditions of work and salary
denied the petition because of the co-mingling of determination between the teaching and non-teaching
rank and file and supervisory employees on the personnel of USC, I do not agree that these
premise that” a labor organization composed of both differences are substantial enough to warrant the
dismissal of the petition. Q: Del Monte Company has been requiring its
workers to render daily overtime work of 5 hours for
the last six months. The certified bargaining Union
The "inappropriateness of the bargaining unit sought requested the management to cut off overtime work
and instead allow some of the workers to work on
to be represented is not a ground for the dismissal of their rest days and holidays. But management insisted
the petition." And as I’ve said, out of the eight that overtime work was necessary to avoid
grounds for when a Med-Arbiter may dismiss the irreparable losses through spoilage of the fruits which
must be immediately canned before the workers leave
petition for certification election, none is present in the premises. One Friday in order to demonstrate
your case. their protest, all the employees led by the Union's
officers refused to work overtime and left the plant
after working for eight hours.
The Supreme Court ordered the “non-academic rank-
and-file employees of U.P. to constitute a bargaining What action may the management take against the
employees? Please advise.
unit to the exclusion of the academic employees of
the institution”, but did not order them to organize a A: The company may file a Petition for Injunction
separate labor organization. In the U.P. case, the with the NLRC against the erring employees.
According to the Labor Code, specifically Article
Supreme Court did not dismiss the petition and
225-E, to enjoin or restrain any actual or threatened
affirmed the order for the conduct of certification commission of any or all prohibited or unlawful acts
election among the non-academic personnel of U.P., or to require the performance of a particular act in
any labor dispute which if not restrained or
without prejudice to the right of the academic performed forthwith, may cause grave or irreparable
personnel to constitute a separate bargaining unit for damage to any party or render ineffectual any
themselves and for the All U.P. Workers Union to decision in favour of such party. Thus, the
management may file a Petition for Injunction against
institute a petition for certification election. the erring employees.
The tire manufacturing company does not fall under In order to determine the constituency of a collective
any of the above. Thus, the DOLE Secretary having bargaining unit, the Supreme Court laid down the
assumed jurisdiction over an industry which is not COMMUNITY OR MUTUALITY OF INTEREST
indispensable to national interest, the assumption TEST, it provides that " the basic test of an asserted
order was void. In turn, the strike conducted by the bargaining unit’s acceptability is whether or not it is
Union was legal. fundamentally the combination which will best
assure to all employees the exercise of their
collective bargaining rights. The application of this
test may either result in the formation of an employer
Dear Mr. X,
unit or in the fragmentation of an employer unit.
USC is a private educational institution, which has 3 (Holy Child Catholic School vs Hon. Patrica Sto.
departments, the elementary, high school and college, Tomas, G.R. No. 179146, July 23, 2013)
all of which are controlled by one Board of Trustees, In your case, there exists two classes: non-teaching
serviced by one cashier and on registrar. It has a full class (cashier and registrar) and the teaching class
complement of 500 teachers. (500 teachers including you). Applying the
COMMUNITY OR MUTUALITY OF INTEREST
I have convinced my fellow teachers that the best TEST, the teachers, although separated by 3
way to secure more benefits and better working departments (elementary, high school and college),
conditions is to formally organize a Union. We are have similar and mutual interests with regards
responsibilities and functions, working conditions,
however undecided as to whether to form a single compensation rates, social life and interests, skills
Union for the entire faculty staff or a separate Union and intellectual pursuits, etc. Hence, it is only proper
for each department. to form a single union, instead of a separate union for
each department.
Kindly advise and guide us.
Hoping that this has addressed your concern. If you
Mr. JMMarquez
have any concern, please don't hesitate to contact our
firm.
Dear JMMarquez,
Best regards,
Greetings!
Dear Mr. X,
This is in connection to your letter. You have stated Because Atty. Walde won a big case for the rank-
that you are a teacher of USC, a private educational and-file Union at the USC school of law, he became
institution, with 500 teachers which has 3
departments: elementary, high school and college. very popular with the Union members, and was
All of which are controlled by one Board of Trustees, persuaded to run as Union president but this was
serviced by one cashier and one registrar; and that opposed by Atty. Randy, the incumbent Union
you have convinced them to form union but president since Atty. Walde was not an employee of
undecided whether to form a single union for the
entire faculty staff or separate union for each USC. This notwithstanding, the Union members in a
department. general assembly overwhelmingly by secret ballot,
declared Atty. Walde qualified, and elected him as
I advise you to form a single Union for the entire
Union President.
faculty staff, instead of a separate Union for each
separate department.
Do you agree with the union's decision? If not, what If you were the counsel for the Company, how will you
address the Union's claims?
remedy is available to contest the election of Atty.
Walde? Mr. JMMarquez
Dear Mr. JMMarquez, This has reference to your query on how your
Company will address its Union’s claims.
Good day!
Based on your information, your Company adopted a
Thank you so much for the trust and confidence. 3 day workweek which is a flexible work arrangement
expressly recognized in the CBA whenever the
In line with your problem, here is my legal advice: company incurs business losses. This was immediately
protested by the certified bargaining Union alleging
First of all, I do not agree with the decision of the that the conditions for such shortened workweek were
union in electing Atty. Walde because it is patently not met. However, when the Union's demand for the
illegal. It is not valid becuase Atty. Walde is not an restoration to normal full week was denied by the
employee of the USC school of law where he was company, the Union filed a notice of strike with the
elected as union president. As clearly provided under NCMB, alleging bargaining deadlock.
the implementing rules of the Labor Code, no person
who is not an employee or worker of the company or Under Department Advisory No. 02 Series of 2009,
establishment where an independent registered union, Compressed workweek is a flexible work arrangement
affiliate local, or chapter of a labor federation or which refers to one where the normal workweek is
national union operates shall henceforth be elected or reduced to less than six (6) days but the total number
appointed as an officer of such union, affiliate or of work-hours of 48 hours per week shall remain. The
chapter. (Implementing Rules, Book V, Rule II, normal workday is increased to more than eight hours
Section 39(f) ) In short, Atty. Walde should be an but not to exceed twelve hours, without corresponding
employee of USC for him to be elected as union overtime premium.
president, because he miserably complied with the
legal requirement to be qualified, therefor, his Adoption of the compressed workweek is a
election is as president is invalid. management prerogative and reversion shall be
considered a legitimate exercise of management
Second, since the election of Atty. Walde is invalid prerogative, provided that the employer shall give the
as he is not qualified hence,his election as president employees prior notice of such reversion within
of the union made in the general assembly which reasonable time.
declared him as qualified by overwhelming majority
is invalid. The proper remedy to contest his election In your case, the adoption of the 3-day workweek is
is an expulsion proceeding before the Bureau of valid provided that the foregoing provisions in the D.O.
Labor Realtion to remove Atty. Walde as he is not are followed. Furthermore, in case of differences of
qualified to be elected as president of the union. interpretation in the administration of compressed
(Rule 11, implementing rules of book V)The BLR is workweek, the differences shall be treated as
the proper body sice this is an intra union dispute. grievances under the applicable grievance mechanism
Hence a petition at Regional Office where the union of the firm.
is registered maybe filed by member specially
concerned members may file the petition. With this The ground relied upon by the union which is
proceeding, Atty. Walde will be removed because he bargaining deadlock is non-existent, therefore, is non-
is not qualified for the election as president of union. strikeable.
Again, thank you so much and may this legal advise In the case of San Miguel VS NLRC, the Supreme
helped you. Court ruled that collective bargaining deadlock is non-
existent for failing to exhaust all the steps in the
Yours, grievance machinery and arbitration proceedings
provided in the Collective Bargaining Agreement.
However, in this situation, the rank and file employees Under the Labor Code of Philippines:
are already members of legitimate union, in fact, a Art. 232. Bureau of Labor Relations. The Bureau of
certified bargaining agent. Labor Relations and the Labor Relations Divisions in
the regional offices of the Department of Labor, shall
Lastly, to affiliate with a federation or nation union is have original and exclusive authority to act, at their
a prerogative of the certified bargaining unit or an own initiative or upon request of either or both parties,
independent union and submits the issue to its on all inter-union and intra-union conflicts, and all
members where majority of the vote of the members is disputes, grievances or problems arising from or
necessary. affecting labor-management relations in all
workplaces, whether agricultural or non-agricultural,
However, if it the federation, who is requesting a except those arising from the implementation or
referendum among the members of Walde rank-and- interpretation of collective bargaining agreements
file union to determine whether they desire to be which shall be the subject of grievance procedure
affiliated with the federation, is the other way around, and/or voluntary arbitration.
and this is interfering with the activities of the certified
bargaining agent whose representation could not be It was ruled in the case of Litex Employees
question except during the 60-day freedom period. Association vs. Eduvala that BLR may hold a
referendum election among the members of a union
I hope this answer your concerns. for the purpose of determining whether or not they
desire to be affiliated with a federation. "In the interest
Truly yours, of industrial peace and for the promotion of the
Xxx salutary constitutional objective of social justice and
protection to labor, the competence of the
Follow-up: Dear xxx, governmental agencies entrusted with supervision
over disputes involving employers and employees as
Are you saying a referendum is similar to certification well as "inter-union and intraunion conflicts," is broad
election? Is there an express prohibition under the law and expansive.
against holding of a referendum where it is the
employees themselves who will decide on such a I hope this clarifies the issues. Thank you and more
major policy? power.
Since in the present case, there was yet no picketing Respectfully yours,
performed by the labor union, it was premature for Atty. Cebrecus, Cesista and Colina
the labor arbiter to prohibit all union officers and
members from engaging in any form of picketing.
Dear Team Cebrecus,
Dear Team Cebrecus, I need you to summarize your advice and opinion. I
need to know whether there is a retraction of any of
What is the basis of the power of the Labor Arbiter to your answers.
stop the strike?
Mr. JMMarquez
Mr. JMMarquez
Mr. Marquez, good evening:
Mr. Marquez, good evening. I. With respect to the categorical question of whether
the Labor Arbiter erred in ordering the stoppage of
We hope you are doing well abroad. strike, the group submits that the Labor Arbiter did as
it does not have the jurisdiction to order an injunction
With respect to your inquiry as to the basis of the of strike, contrary to the previous answer provided
Labor Arbiter to stop the strike, it is worth noting that for by the group.
the petition of the Company was to declare the strike
illegal. To the extent that the facts of the inquiry II. Notwithstanding the modification as to the answer
indicated that the “Labor Arbiter sided with above, the group humbly maintains that the Labor
management”, the Labor Arbiter was correct in Arbiter erred in prohibiting the Union from engaging
deciding on the merits of the petition but erred in in any form of picketing.
ordering the strike to stop. The specific justifications for these answers are
detailed as follows, to wit –
Pursuant to Section 14, Rule XXII of Department I. THE LABOR ARBITER ERRED IN ORDERING
Order 40-03, “(n)o court or entity shall enjoin any BOTH THE STOPPAGE OF STRIKE AND IN
picketing, strike or lockout, except as provided in PREVENTING THE SUBSEQUENT PICKET OF
Articles 225 (218) and 278 (263) of the Labor THE UNION.
Code.” While questions relating to strikes or lockouts or any
form of work stoppage including incidents thereof
The Commission shall have the power to issue under Article 278 (263) of the Labor Code fall within
temporary restraining orders in such cases but only the Labor Arbiter’s jurisdiction, the power to issue
after due notice and hearing and in accordance with injunction is lodged with an NLRC division. Labor
its rules. The reception of evidence for the Arbiters are statutorily excluded from issuing
application of a writ of injunction may be delegated injunctions. (Lahm III and James P. Concepcion v.
by the Commission to any Labor Arbiter who shall Labor Arbiter Jovencio Ll. Mayor, Jr., A.C. No.
submit his recommendations to the Commission for 7430, 15 February 2012).
its consideration and resolution.”
It bears stressing that Article 279 (264[a]) of the
While the 1990 Rules of Procedure of the NLRC Labor Code explicitly states that a declaration of
provided that the ancillary power of issuing strike without first having filed the required notice is
preliminary injunction or restraining order may be a prohibited activity, which may be prevented
exercised by the Labor Arbiters as incident to the through an injunction in accordance with Article 266
cases pending before them to preserve the rights of (254) of the Labor Code. Thus, only the NLRC
the parties, this statement no longer appears in the through its divisions may enjoin a strike. (San Miguel
new NLRC Rules of Procedure. Corp v. National Labor Relations Commission, G.R.
No 119293, 10 June 2003).
Thus, while questions relating to strikes or lockouts Further, Pursuant to Section 14, Rule XXII of
or any form of work stoppage including incidents Department Order 40-03, “(n)o court or entity shall
thereof under Article 278 (263) of the Labor Code enjoin any picketing, strike or lockout, except as
fall within the Labor Arbiter’s jurisdiction, the power provided in Articles 225 (218) and 278 (263) of the
to issue injunction is lodged with an NLRC division. Labor Code.”
Labor Arbiters are statutorily excluded from issuing
injunctions. The Commission shall have the power to issue
temporary restraining orders in such cases but only
It bears stressing that Article 279 (264(a)) of the after due notice and hearing and in accordance with
Labor Code explicitly states that a declaration of its rules. The reception of evidence for the
strike without first having filed the required notice is application of a writ of injunction may be delegated
a prohibited activity, which may be prevented by the Commission to any Labor Arbiter who shall
through an injunction in accordance with Article 266 submit his recommendations to the Commission for
(254) of the Labor Code. (San Miguel Corp. v. its consideration and resolution.” (San Miguel Corp
v. National Labor Relations Commission, G.R. No denied the petition for injunction to restrain the union
119293, 10 June 2003) from declaring a strike based on non-strikeable
grounds.
II. ANENT THE SECOND ISSUE, THE LABOR
ARBITER INVALIDLY PROHIBITED ALL In the same case of San Miguel Corporation v.
UNION OFFICERS AND MEMBERS FROM NLRC, GR No. 119293, 10 June 2003, the Supreme
ENGAGING IN ANY FORM OF PICKETING. Court further held that the NLRC has the legal duty
Article 225 (218) paragraph (e) of the Labor Code and obligation to enjoin a strike in violation of the
grants the NLRC, not the Labor Arbiter, the power to law.
issue an injunction. Section 14 Rule XXII of
Department Order No. 40-03, categorically states that Thus, the scope of the power of the NLRC includes
“no court or entity shall enjoin any picketing, strike the power to stop a strike.
or lockout, except as provided in Articles 218 (now
Art. 225) and 265 (now Art. 277) of the Labor Code.” II. THE LABOR ARBITER IS STATUTORILY
The same Section further provides that “the EXCLUDED FROM ISSUING INJUNCTIONS.
Commission (NLRC) shall have the power to issue
temporary restraining orders in such cases but only In Lahm III and James P. Concepcion v. Labor
after due notice and hearing and in accordance with Arbiter Jovencio Ll. Mayor, Jr., A.C. No. 7430, 15
its rules.” February 2012, the Supreme Court ruled that Labor
Thus, it is only the Commission and not the Labor Arbiters are statutorily excluded from issuing
Arbiter that has the jurisdiction to prohibit a Union injunctions. Since to order the stoppage of strike and
from engaging in any form of picketing. prevention of picketing both refer to the power to
issue an injunction, it follows that the Labor Arbiter
Respectfully yours, does not have such authority under the law. The
ATTY. Cebrecus power to issue injunctions in strikes or picketing is
ATTY. Cesista granted to the NLRC and not the Labor Arbiter (Rule
ATTY. Colina X, Section 2, 2011 NLRC Rules of Procedure as
amended).
Dear Team Cebrecus, Thus, it is only the Commission and not the Labor
Arbiter that has the jurisdiction to prohibit the Union
Did you check the scope of the injunction power of from engaging in any form of picketing.
the NLRC? Whether it includes stopping a strike?
We are sincerely hoping that these responses satisfy
Mr. JMMarquez your queries.
Therefore, Pacific measures or remedies must first be San Carlos University ("University") has two labor
exhausted before employees may stage a strike. Our rank-and-file unions, namely, Union A and Union B.
courts have insisted on something analogous to the Union A protested the special assessment recently
doctrine of exhausting administrative remedies, by
requiring employees to exhaust available means of made by Union B which covers all employees in the
settling the dispute without resort to strike. Strikes rank-and-file bargaining unit. Because of the dispute,
and other coercive acts are deemed justified only Union A declared a strike. When the University
when peaceful alternatives have proved unfruitful in
sought to have their strike declared illegal, Union A
settling the dispute (PHILMARO VS CIR, and Cia.
Maritima vs PHILMAROA, 103 phil 373 Interwood unconditionally offered to return to work. While the
Employees Assn. vs. Int'l. Hardwood Veneer Co. University is ready and willing to accept all strikers,
ofthe Phil., 99 Phil 82; Union of PECO Employees the University however refused to accept all Union
vs. PECO, 91 Phil. 93; INSUREFCO Employees
A's officers and members who intimidated and
Union vs. CIR, 95 Phil. 161; Citizens Labor Union
vs. Standard Vacuum Oil Co., 97 Phil. 949; Almeda prevented the University's vehicles from going in and
vs. CIR, 97 Phil. 306; N L U vs. Phil. Match Factory, out of the school's premises. Did the University act in
70 Phil. 300; Luzon Marine Department Union vs. accordance with law? Please advise.
Roldan, N o . L-2660, May 30, 1950. ) thus,
disregarding the grievance procedure or refusal to Mr. JMMarquez
submit the arbitrable issue to voluntary arbitration Mr. Marquez, good evening.
may justify a conclusion that the strike was held
prematurely, hence, illegally.( Liberal Labor Union The question you posed required two discussion of
two issues: regardless of whether the disputants stand in the
first and a minor issue: whether the strike was legal proximate relation of employer and employee.”
and
second and the crux of the controversy: whether the Thus, the strike would have to contemplate
employer could in fact validly refuse to accept the disagreements regarding terms and conditions of
Union’s officers and members who intimidated and employment or regarding ways to arrange or adjust
prevented University’s vehicles from going in and those terms and conditions. An intra-union dispute is
out of premises. not considered a labor dispute (National Union of
Workers in Hotels, etc. v. NLRC and Peninsula
Turning then to the first issue of illegality of strike. Hotel, GR No. 125561, 6 March 1998).
It is beyond cavil that indeed the strike was illegal for
failure to allege any of the requirements for a valid In the instant case, it is clear that the strike declared
strike. Pursuant to Article 277 [263] of the Labor by Union A is illegal not only because of non-
Code and Magdala Multipurpose and Livelihood compliance with the procedural requirements of a
Cooperative v. KMLMS and Union Members and valid strike under Article 277 [263] of the Labor
Strikers, GR Nos. 191138-39, 19 October 2011), for Code and its implementing rules but because the
a strike to be held valid, certain guidelines have been issue itself was a non-strikeable issue as it was based
provided for both in law and in jurisprudence – (1) on an intra-union dispute. A strike declared on the
filing of notice of strike, (2) observance of cooling- ground of inter-union or intra-union conflict which is
off period (3) taking of strike vote and (4) observance a non-strikeable issue is patently illegal according to
of the seven-day strike-vote-report period. None of paragraph (b) of Article 263 of the Labor Code
these is present in the case at bar. expressly prohibiting strike on grounds involving
inter-union or intra-union disputes.
Turning to the more crucial issue regarding the
ability of the employer to refuse to accept Union To integrate the answer with respect to the first
officers and members who intimidated and prevented query, the Labor Code [Article 278 (a)] expressly
University’s vehicles from going in and out of sanctions the dismissal of union officers who
premises. knowingly participate in an illegal strike or in the
commission of illegal acts during a lawful strike.
It is my submission that they may validly be Union members who knowingly participate in
dismissed from employment pursuant to Article 278 prohibited or illegal acts during a strike may likewise
[264] paragraph (a) states that “Any union officer be terminated if there is substantial evidence or proof
who knowingly participates in an illegal strike andd of their participation, i.e., that they are clearly
any worker or union officer who knowingly identified to have committed such prohibited and
participates in an illegal strike and any illegal acts illegal acts. (Magdala Multipurpose and Livelihood
during a strike may be decalred to hae lost his Cooperative v. KMLMS and Union Members and
employment status.” Blocking ingress and egress of Strikers, GR Nos. 191138-39, 19 October 2011)
the University and intimidation of its vehicles or
personnel is considered an illegal act (Toyota Motor For this reason alone, the University may validly
Phils Workers Association v. NLRC, GR 158786, 19 terminate the union officers pursuant to the
October 2007). provisions of the law. On the other hand, ordinary
union members who participate in an illegal strike are
Thus, provided that the employer was able to give generally not liable. If they commit prohibited and
sufficient notice for such termination as what the illegal acts during the strike, legal or illegal, they may
employer did in Toyoto Motor Phils Workers v. validly be terminated (Art. 278 [264]) par. (a). The
NLRC cited above, the University is expressly act of intimidation and obstruction of the free ingress
empowered by law to severe employment of Union to or egress from the premises of the employer for
officers and workers who committed illegal acts lawful purposes is one of the prohibited acts and
during a strike, notwithstanding the status of the practices during a strike. Therefore, in the instant
strike. case, the union members who intimidated and
prevented the University’s vehicles from going in and
Dear Mr Cesista, out of the school’s premises may also be validly
terminated so long as there is substantial proof of
Does not a labor dispute exist? their participation (Toyota Motor Phils Workers
Association v. NLRC, GR 158786, 19 October
Mr JMMarquez 2007).
Dear Mr. Marquez, Thus, provided that the employer was able to give
sufficient notice for such termination as what the
Good evening. I shall endeavor to answer the follow- employer did in Toyota Motor Phils Workers v.
up question and will in turn integrate the answer to NLRC cited above, the University is expressly
the first query. empowered by law to severe employment of Union
officers and workers who committed illegal acts
It may be noted that pursuant to Article 219 [212] of during a strike, notwithstanding the status of the
the Labor Code, a labor dispute “includes any strike.
controversy or matter concerning terms and
conditions of employment or the association or Thank you for your time, Mr. Marquez.
representation of persons in negotiating, employment,
deadlock in the instant case which may be a cause for
ATTY. Vincent Joseph Cesista a valid strike because there is still no exhaustion of
administrative remedies as stated in Art. 260 of the
Dear Ms. Colina, Labor Code.
Yours Truly,
Atty. Maricris Colina
Dear Ms Colina,
Mr JMMarquez
Good day!
Yours Truly,
Atty. Maricris Colina