Bar Question 2010

Question no. 1

Distinguish the terms “conciliation,” “mediation” and “arbitration.” (3%)

Differentiate “surface bargaining” from “blue-sky bargaining.” (2%)

Suggested Answer:
a. Conciliation is conceived of as a mild form of intervention by a neutral
third party, the Conciliator-Mediator, relying on his persuasive
expertise, who takes an active role in assisting parties by trying to
keep disputants talking, facilitating other procedural niceties, carrying
messages back and forth between the parties, and generally being a
good fellow who tires to keep things calm and forward-looking in a
tense situation. Mediation is a mild intervention by a neutral third
party, the Conciliator-Mediator, whereby he starts advising the parties
or offering solutions or alternatives to the problems with the end in
view of assisting them towards voluntarily reaching their own mutually
acceptable settlement of the dispute, while Arbitration is the process
of settlement of labor disputes by a government agency which has the
authority to investigate and to make an award which is binding on all
the parties, and as a mode of arbitration where the parties are
compelled to accept the resolution of their award.
b. Blue-Sky Bargaining is defined as "unrealistic and unreasonable demands in negotiations
by either or both labor and management, where neither concedes anything and
demands the impossible."

Question no. 2

ABC company and U labor union have been negotiating for a new Collective
Bargaining Agreement (CBA) but failed to agree on certain economic provisions of
the existing agreement. In the meantime, the existing CBA expired. The company
thereafter refused to pay the employees their midyear bonus, saying that the CBA
which provided for the grant of midyear bonus to all company employees had
already expired. Are the employees entitled to be paid their midyear bonus? Explain
your answer. (3%)

Suggested Answer:

YES. Under Article 264 of the Labor Code, it shall be the duty of both parties to keep the status
quo and to continue in full force and effect the terms and conditions of the existing agreement
until a new agreement is reached by the parties.

Question no. 3
A, an employee of XYZ Cooperative, owns 500 shares in the cooperative. He has
been asked to join the XYZ Cooperative Employees Association. He seeks your
advice on whether he can join the association. What advice will you give him? (3%)

Suggested Answer:

I will advice A that he could not do so since the Supreme Court had once held that an employee
therefore of such a cooperative who is a member and co-owner thereof cannot invoke the right
to collective bargaining for certainly an owner cannot bargain with himself or his co-owners.

Question no. 4

Several employees and members of Union A were terminated by Western Phone Co.
on the ground of redundancy. After complying with the necessary requirements, the
Union staged a strike and picketed the premises of the company. The management
then filed a petition for the Secretary of Labor and Employment to assume
jurisdiction over the dispute. Without the benefit of a hearing, the Secretary issued
an Order to assume jurisdiction and for the parties to revert to the status quo ante
litem.

Was the order to assume jurisdiction legal? Explain. (2%)

Under the same set of facts the Secretary instead issued an Order directing all
striking workers to return to work within 24 hours, except those who were
terminated due to redundancy. Was the Order legal? Explain. (3%)

Suggested Answer:
a. YES. The said order is legal.

Under Article 278 of the Labor code provides that when in his opinion, there exist a
labor dispute causing or likely to cause a strike or lockout in an industry indispensable to
the national interest, the Secretary of Labor and Employment may assume jurisdiction
over the dispute.

In this case, member of Union A were planning to stage a strike against Western Phone
Co. which is a telecommunications industry which is indispensable to national interest.
Thus, the assumption of jurisdiction was valid.

b. YES. The order was legal.

Under Article 278 of the Labor Code, it provides if a strike has already taken place at the
time of assumption of certification, the secretary may order all striking employees shall
immediately return-to-work.

Question no. 5
A, single, has been an active member of the Social Security System for the past 20
months. She became pregnant out of wedlock and on her 7th month of pregnancy,
she was informed that she would have to deliver the baby through caesarean
section because of some complications. Can A claim maternity benefits? If yes, how
many days can she go on maternity leave? If not, why is she not entitled? (3%)

Suggested answer:

YES. A can claim maternity benefits under the SSS Act since the law does not provide that a
pregnant woman must be married in order for the coverage of the law to apply to her. Under
the new law, RA 11210, Maternity leave of 105 days with full pay, whether the eligible female
employee gives birth via caesarian section or natural delivery.

Question no. 6

Company XYZ has two recognized labor unions, one for its rank-and-file employees
(RFLU), and one for supervisory employees (SELU). Of late, the company instituted a
restructuring program by virtue of which A, a rank-and-file employee and officer of
RFLU, was promoted to a supervisory position along with four (4) other colleagues,
also active union members and/or officers. Labor Union KMJ, a rival labor union
seeking recognition as the rank-and-file bargaining agent, filed a petition for the
cancellation of the registration of RFLU on the ground that A and her colleagues
have remained to be members of RFLU. Is the petition meritorious? Explain. (3%)

Suggested Answer:

NO. the petition is unmeritorious. The grounds enumerated under Art. 247 of the Labor Code
did not provide that membership of a supervisory employee in a rank and file union as a ground
for cancellation of union registration. When A was promoted to a supervisory position along
with four other colleagues, the same should have been deemed as automatically dropped from
the rank and file union membership.

Question no. 7

A is a member of the labor union duly recognized as the sole bargaining

representative of his company. Due to a bargaining deadlock, 245 members of the
500-strong union voted on March 13, 2010 to stage a strike. A notice of strike was
submitted to the National Conciliation and Mediation Board on March 16, 2010.
Seven days later or on March 23, 2010, the workers staged a strike in the course of
which A had to leave and go to the hospital where his wife had just delivered a
baby. The union members later intimidated and barred other employees from
entering the work premises, thus paralyzing the business operations of the
company.

A was dismissed from employment as a consequence of the strike.

Was the strike legal? Explain. (3%)

Was A’s dismissal valid? Why or why not? (3%)

Suggested Answer:
a. NO. the strike was not valid for failure to comply with the 30-day cooling off period
provided for under the Labor Code. As seen in this case, the union merely complied with
the 7-day strike ban period but failed to observe the 30day cooling off period for
bargaining deadlock strikes.
b. NO. As the court held in a case, When the strike is held illegal, only the union officers
who knowingly participated will be considered to have lost their employment status. The
union members who knowingly participated in the commission of illegal acts during the
strike may be held liable. Thus, A who did not knowingly participate was illegally
dismissed.

Question no. 8

A was working as a medical representative of RX pharmaceutical company when he

met and fell in love with B, a marketing strategist for Delta Drug Company, a
competitor of RX. On several occasions, the management of RX called A’s attention
to the stipulation in his employment contract that requires him to disclose any
relationship by consanguinity or affinity with coemployees or employees of
competing companies in light of a possible conflict of interest. A seeks your advice
on the validity of the company policy. What would be your advice? (3%)

Suggested Answer:

I would advice A that the supreme court held in Duncan Association of Detailman-PTGWO vs.
Glaxo Welcome Philippines, Inc., that such prohibition is reasonable under the circumstances
because relationships of that nature might compromise the interests of the company and the
same does not violate the equal protection clause in the Constitution since what the company
merely seeks to avoid is a conflict of interest between the employee and the company that may
arise out of such relationships.

Question no. 9

Because of continuing financial constraints, XYZ, Inc. gave its employees the option
to voluntarily resign from the company. A was one of those who availed of the
option. On October 5, 2007, he was paid separation benefits equivalent to seven (7)
months pay for his six (6) years and seven (7) months of service with the company
and he executed a waiver and quitclaim.

A week later, A filed against XYZ, Inc. a complaint for illegal dismissal. While he
admitted that he was not forced to sign the quitclaim, he contended that he agreed
to tender his voluntary resignation on the belief that XYZ, Inc. was closing down its
business. XYZ, Inc., however, continued its business under a different company
name, he claimed.

Rule on whether the quitclaim executed by A is valid or not. Explain.

Suggested Answer:

NO. In the case of Wyeth Labortaries vs. NLRC, the court held that the quitclaims are
commonly
frowned upon as contrary to public policy and they are ineffective to bar claims for the full
measure of the workers' legal rights. While "dire necessity" as a reason for signing a quitclaim is
not acceptable reason to set aside the quitclaim in the absence of a showing that the employee
had been forced to execute it, such reason gains importance if the consideration for the
quitclaim is unconscionably low and the employee has been tricked into accepting it.

Question no. 10
Samahang Manggagawa ng Terracota, a union of supervisory employees at
Terracota Inc., recently admitted a member of the company’s managerial staff, A,
into the union ranks.

Should A be a member of the supervisory union? Explain. (2%)

Assuming that A is ineligible to join the union, should the registration of Samahang
Manggagawa ng Terracota be cancelled? Explain. (3%)

Suggested Answer:
a. NO. A, being a managerial employee, should not join any labor organization.

Art. 255 of the Labor Code provides that Managerial Employees are not eligible to join,
assist or form any labor organization. Thus, A should not join the supervisory union.

b. NO. Article 256 of the Labor Code provides that inclusion of members outside the
bargaining unit shall not be a ground for the cancellation of the registration of the
union. A should be merely automatically dropped from the list of membership of the
union.