LABOR RELATIONS chairman comes from the gov’t.

The others, from both the

• It denotes all aspects of ER-EE relationship w/c involve management and labor sectors.
concerted action on the part of the workers.
• It is usually associated w/:
NLRC LABOR ARBITER
1. unionism;
2. collective bargaining; IBP member IBP member
3. negotiations; and
4. concerted activities (strike, picket, mass leave) 15 years in practice of law 10 years in practice of law

• The purpose of LabRel is to align the differences b/w ER-EE 5 years experience in Labor 5 years experience in Labor
so that there will be peace, tranquility and order. management management

PARTIES: Assigned in the region

• In the event of labor dispute, there are 4 parties involved: where he comes from
(a) Immediate/ Active parties (ER & EE)
(b) Passive/ Inactive parties (Gov’t & Public) • The functions of NLRC are appointing, investigative and
administrative.
Q: Is there an instance where a passive party becomes an - BUT the ff. are the quasi-judicial powers:
active party? 1. Contempt powers
A: YES. In case a LD in an industry indispensable to 2. Injunctive power
national interest. In the case of a vital industry dispute, 3. Power to resolve certified cases under Art. 263-G
where the President/ Sec. of Labor can assume jurisdiction. (assumption power)
4. Appellate power
ex. There is a LD in PAL, it is a vital industry. The ER & EE are
the active parties. QUASI-JUDICIAL POWERS OF NLRC:

Q: The gov’t and the public are passive parties, BUT (1) CONTEMPT POWER OF NLRC
may the gov’t be an active party in this case? • It is to preserve the dignity of the commission. Direct
A: YES. For purposes of resolving the VID. contempt, pursuant to the NLRC 2011 Rules and Procedure
of Labor Code. Indirect contempt, pursuant to Rule 71 of the
• The Pres or the Sec. of Labor (gov’t) can assume such Rules of Procedure.
jurisdiction over LD in PAL in order to protect national
interest. (2) INJUNCTIVE POWER
• The NLRC can issue of TRO or a writ of injunction. These
Q: What happens if the gov’t does not intervene? must be issued upon the observance of due process. The
A: In terms of economy, there will be no income on the part of TRO may be issued even without a hearing. However, in
the ER. There will be no wages, salaries on the part of the EE. issuing a writ of injunction there must be a hearing to be
In terms of economy of the nation, affected. In terms of the conducted.
production of the workers, if there is a strike, then there will be • The NLRC may issue a TRO ex parte or without the
no work. This is why the gov’t can intervene. presence of the other party because it is a mere
interlocutory order prior issuance of the writ of injunction.
Q: Under what procedure can the gov’t intervene? BUT in the case of writ of injunction, a hearing must be
A: By assuming jurisdiction over LD in an industry conducted.
indispensable to national interest.
(3) POWER TO RESOLVE CERTIFIED CASES UNDER ART.
BODIES TO IMPLEMENT LABREL: 263-G OF THE LC (ASSUMPTION POWER)
1. Office of the President
2. DOLE Q: How may the Pres of Sec. of Labor assume jurisdiction
3. Regional offices of the DOLE over a VID?
4. NLRC A: The ER or the union may petition or do a joint petition or
5. Regional Arbitration Branches of the NLRC motu proprio.
6. Bureau of LabRel
7. National Conciliation and Mediation Board • Under Art. 263-G, the nature of this assumption power is
(PFCD) plenary, full, complete & discretionary.
NATIONAL LABOR COMMISSION
• Nature of composition of the NLRC: Q: Can the EE & the union compel the Sec. of Labor to
- It is a tripartite body, trisectoral composition assume jurisdiction?
- Its compositions comes from the: A: NO, it is discretionary. The Sec. of Labor has a wide
1. government sector latitude of discretion.
2. management
3. labor sector LEGAL EFFECTS OF AN ASSUMPTION ORDER:
1. It has the effect of writ of injunction.
• The NLRC sits en banc only of instances of policy 2. A return to work order is deemed written in the AO.
determination and promulgation of the IRR. - There are cases where the Sec. of Labor had a separate
return to work order.
Q: How may the NLRC exercise its quasi-judicial powers? 3. Striking workers should return to work, otherwise, they are
A: It is exercised thru the different divisions. There are 8 deemed to have lost their employment status or they can
divisions. In each division, there are 3 commissioners. The be dismissed upon compliance with due process.
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4. The AO contemplates only actual reinstatement.
- The returning striking workers should be reinstated (a) organized by the co.
actually by the ER thru their former positions under the
same terms and conditions of the ER. Q: How may an employer organize a company union?
- Under the law on dismissal, the ER is given the option A: Thru the ff:
to reinstate either actually or via payroll. But on the law 1. economic support - turning the assoc. to a LU,
of assumption of jurisdiction, payroll is not allowed. organized in the instance of the ER;
XPN: Under special circumstances, they should be 2. legal support - the ER gives the best lawyer to be able
reinstated via payroll if there will be an awkward to build a union; and
situation or legal/ physical impossibility. 3. psychological support - promises of a better future,
5. Sec. of Labor has concurrent jurisdiction over cases that trust fund etc.
are cognizable by LA.
• Under Art. 224, the LA exercises exclusive jurisdiction (b) not organized by the co.
over termination disputes, ULP etc. - A militant union but bec. the ER captivated the heart and
XPN: Under assumption order & pending litigation, the emotions of the union, the union became a company
Sec. of Labor can take over pending cases. dominated union.

UNFAIR LABOR PRACTICE (ULP) 4. Refusal to bargain collectively

• It is an act by ER w/c violates the constitutional right of - the duty to bargain collectively means the mutual
worker to self organization, w/c includes: obligation of the ER to confer promptly and
1. right to form a union expeditiously on reasonable terms and conditions of
2. right to take part in its formation employment and in good faith, providing the
3. right to join or assist a union in CBA machineries of settlement therein
4. right to negotiations
5. right to engage in concerted activities for mutual help Q: When may mutual bargaining start?
and protection A: The union submits a proposal and as a mutual obligation
on the part of the ER, the ER is mandated to submit a counter
Q: Are there instances when ULP is committed in the absence CBA proposal w/in 10 days of receipt.
of ER-EE relationship?
A: YES. In the ff. instances: When the ER received the counter CBA and the ER does not
(a) Doctrine of innocent bystander - ULP can be submit a counter CBA, the CBA proposal submitted by the
committed against a non-ER. union will become the governing CBA in the company
(b) Yellow Dog Contract - an agreement where an premises.
applicant to the job should not be a member of a
union or he is required not to join any labor union. He (a) Good faith bargaining (Boulwareism) - this is our
renounces his constitutional right to self organization. proposal, “take it or leave it”. It was introduced by
Lemuel Boulware (VP of General Electric)
• The nature of ULP is not just administrative or civil offense (b) Surface bargaining - the ER procastinates & delays
but is also a criminal offense. It is the regular courts which the proceedings, the ER has no intention of signing
has jurisdiction over the criminal aspect. However, there an agreement
must be a final decision on the administrative or civil aspect (c) Runaway shop - they transfer their business to
before he can file the criminal aspect. another location to avoid CBA
Q: When they discovered it, they held a strike at the
TYPES OF ULP: place where the ER transferred. Is the strike legal?
a) ULP COMMITTED BY THE ER A: YES.
• In ULP, the purpose of any act of the ER is to discourage
unionism. To get rid of the union. • The concept of the duty to collective bargaining is it includes
Types of ULP committed by the ER: reasonable terms & conditions of employment.
1. Interference, restraint, coercion
- This can be committed through the ff: 5. Providing negotiation fess & services
(a) economic means - sweetheart contract, where - This will result to incomplete, inadequate CBA.
there will be collusion b/w the union & the ER;
(b) physical means - the ER kidnaps the Pres. of the 6. Contracting out of service
union to scare him if they will push through w/ the - If the contracting exceeds 6 months, that will amount
CBA; and to ULP. The purpose is to get rid of the union w/c is a
(c) psychological means - sending death threats; ULP.
sending an empty coffin
7. Giving out testimony
2. Discrimination
- if the unequal treatment is designed or calculated to 8. Gross flagrant violation of the CBA
get rid or discourage unionism, it is ULP. - This refers to economic provisions.
(a) laid off • Increase of wages
(b) retrenchment • Other addtl & labor standards benefits
(c) transfer of EEs • Leave credits
• Increase of benefits
3. Company unionism • Escalator clause - in the event of sudden increase
- the union is organized at the instance of the co. or in the prime commodities of consumer price index
ER. brought about by soaring prices, this provides that
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 there will be a gradual increase in wages if there is - inform the EE of the decision to dismiss him;
increase in commodities. - give the EE the chance to contest validity by filing proper
complaint
b) ULP COMMITTED BY THE UNION
Types of ULP committed by the union: 2. Opportunity to be heard unless the party requests
1. Blue sky bargaining for a hearing (Perez doctrine)
- the CBA proposal contains economic demands that
are unreasonable, exaggerated bargaining proposals; D O C T R I N E O F C O M M E N S U R AT E P E N A LT Y /
the economic demands are sky high or beyond the PROPORTIONAL RULE:
economic reach of the employer. - penalty imposed proportionate to offense committed
1. Length of service
2. Feather bedding activity 2. Gravity of offense
- it means prolonging the work for the union to earn; 3. Nature of the position/ employment
compelling the ER to pay services rendered or not 4. Nature of the business
rendered, performed or not performed; this is a form of 5. First offense rule
extortion committed by the union to the ER. 6. Totality of infractions (Collective infractions rule)
ex. the employer only needs 50 people but the union compels 7. P r i n c i p l e o f c h a r i t y, c o m p a s s i o n a n d
the ER to pay for 75 people. understanding
8. Principle of equity
3. Restraint, coercion, discrimination on the part of the
union 2 TYPES OF DISMISSAL: (JUST CAUSE & AUTHORIZED
4. Strike coercion on the part of the union CAUSE DISMISSAL)
5. Accepting negotiation fees from the union 1. JUST CAUSE DISMISSAL
6. Violation of the CBA of the union - this is initiated by the EE;
- in the Toyota doctrine, all has no payment of separation
TERMINATION DISPUTES pay;
• It has something to do on law on dismissal; post- - for non-compliance by the ER of the due process of just
employment cause dismissal, he is liable to pay indemnity or nominal
damages amounting to P30,000.00
LAW ON DISMISSAL
Types of Just Causes:
• According to Article 3, Section 1. “No person shall be a) Serious misconduct
deprived of his life, liberty and property without due process - wrongful or improper conduct that is committed in an
of law.” aggravated or serious manner.
• Due process class and right to security of tenure. - to be a just cause dismissal, it should be serious; if it were a
• Labor is a property. One’s labor is property within the minor misconduct, then it is not a just cause for dismissal
mantle of the Constitution. A worker may not have any (too harsh a penalty).
property except his labor.
examples:
DUE PROCESS • Sexual harassment
“Audie alteram partem” - the Anti-Sexual Harassment Law is designed to protect
- No one shall be condemned and unheard employees from over sexed superiors
2 Types of Sexual Harassment
Q: What is the quantum of proof in labor proceedings? 1. Quid pro quo - “I give that you may give”;
A: something for something
GR: Substansial evidence, w/c a reasonable mind may - economic in nature committed by superior
find adequate to justify conclusions. o ff i c e r w h o h a s m o r a l d o m i n a n c e ,
XPN: To prove the validity of dismissal rest upon the ascendancy over the victim
ER to prove it under clear, positive, convincing and - procurement of sexual favors
accurate evidence. 2. Hostile environment
- unwelcome sexual remarks, advances,
2 ASPECTS OF DUE PROCESS: utterances, flirtations
a) Substantive - physical conduct of a sexual nature where
- this refers to the legality or illegality of the act of an employee is placed in an intimidating,
dismissal; no EE shall be dismissed except in hostile and offensive environment.
causes provided by law
b) Procedural • Fighting in company premises
- this refers to the legality or illegality of the manner of - No work, no pay (they stop working when there is fight).
dismissal There must be body contact in order to be serious.
1. 2-Notice Rule
1st Notice • Gambling
- it must be formal specific discharge; “violation of - Serious misconduct because of its pernicious effects.
Company Rules and Regulations” — it is NOT considered
as specific discharge. • Sexual intercourse in company premises
- you reply w/ an intelligible answer if the discharge is NOT - this is inflamed either by lust or affection, these are immoral
specific. acts that affects moral decency. Immoral acts are any act
2nd Notice not accepted by community (ex. married man w/ another
- this is the notice of dismissal;
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 family). The basis of determining immorality is the public - for non-compliance by the ER, he is liable to pay the
and secular basis. amount of P50,000

• Theft Types of Authorized Causes:

- it is an act of dishonesty, you also have to consider the a) Introduction of Labor Saving Device Automation
amount of the property taken because you need to consider - replacement of workers by machines resulting to
also if the penalty is proportional to the offense committed. technological employment
If it is negligible, dismissal is too harsh a penalty. Requirements:
1. 2 separate notice rule - notice to the DOLE and
• Drug-use in company premises 30 days notice to the EE to be discharged;
- the refusal to take the test (confirmatory test & screening 2. Fair and reasonable criteria - less preferred
test) is considered a serious misconduct and may be status, seniority based on first in last out rule,
dismissed. The ER must inform the EE of the test results, length of service; this is not provided by law but
without this it is considered illegal dismissal. perhaps in the employment contract or CBA
3. It must be done in good faith
b) Willfull disobedience 4. There must be payment of separation pay
- there is deliberate refusal to obey lawful orders of the ER; - If it is done just to get rid of the union, this will amount to
repeated commission of same irregularity. However, constructive dismissal and ULP.
insubordination is an isolated act and not justified by
dismissal. b) Retrenchment
- It does not mean that if there is a violation of the lawful - ER is on the verge of economic collapse; the ER is losing
order, that automatically dismisses an employee. We must - the ER can embark on retrenchment to prevent losses
determine first other circumstances before imposing the - the purpose of retrenchment is to prevent the eventual
supreme economic death penalty which is dismissal. economic catastrophe that will lead to the downfall of the
ER; so the ER can reduce company personnel to prevent
c) Willfull breach of trust and confidence losses
- it has something to do with protection of company money - partial closure is also considered as retrenchment
and propery Requirements:
2 Types of positions: 1. 2 separate notice rule - notice to the DOLE and
1. Fiduciary/ Rank and file employees 30 days notice to the EE to be discharged;
- requires a tedious, rigorous procedure in the 2. Fair and reasonable criteria - less preferred
dismissal status, seniority based on first in last out rule,
length of service; this is not provided by law but
2. Managerial employees perhaps in the employment contract or CBA
- mere finding of the basis of loss of trust and 3. It must be done in good faith
confidence will justify dismissal; it is the 4. Proof of financial pay
extension of the personality of the 5. There must be payment of separation pay - half
management/ alter-ego of the ER month pay for every year of service (company is
losing)
d) Commission of a criminal offense
- any commission of a criminal act against the person of the Q: What kind of losses are contemplated under the LC?
ER or his immediate family member will justify dismissal A: Actual and anticipated/ impending losses

e) Gross and habitual neglect of duties • There is no prohibition for the ER to embark on
- because of the EE’s gross negligence, it caused the ER a retrenchment if he could perceive that its economy will go
tremendous damage down the drain.
ex. Manager assigned in a very delicate position but he failed
to perform his functions. Several company properties were c) Redundancy
spirited out unknowingly by such manager. This will justify - it is no the duplication in work function;
dismissal. - a position is redundant when it is superfluous. Superfluity is
- there were some cases where in although not habitual, but the outcome of some factors:
if it is gross, then that will justify dismissal (a) Over-hiring of workers
(b) Decline in the volume of business
f) Other analogous causes (c) Closure of a particular line of an economic activity
1. violation of company rules previously engaged by the ER
2. unauthorized absences - there are excess services that are NOT needed by the ER.
3. serious insult/ unbearable treatment of ER These surplus over-hired additional works are NOT needed
4. abandonment by the ER, so they must be discharged.
- over acts/ willful intention to ever ER-EE Requirements:
relationship; there must be willful, deliberate 1. 2 separate notice rule - notice to the DOLE and
refusal not to return. The ER must notify the 30 days notice to the EE to be discharged;
employee, still need to observe the 2-notice rule 2. It must be done in good faith
but w/o hearing 3. There must be payment of separation pay - full
month pay for every year of service
2. AUTHORIZED CAUSE DISMISSAL
- this is initiated by the ER; d) Disease
- mandates payment of the separation pay; - the ER must prove it by way of medical certificate issued by
a gov’t hospital/ clinic or doctor;
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Updates by CRUZ.DE DIOS.RUIZ ’17-’18

- the disease cannot be cured in the period of 6 months; if it A:
is curable w/in 6 months, he should be allowed to on LOA 1. Reinstatement
Requirements: - restoration of the dismissed EE to his former position
1. 2 separate notice rule - notice to the DOLE and 2 Types of Reinstatement:
30 days notice to the EE to be discharged; a) Actual
2. It must be done in good faith - employee reinstated to his former position;
3. There must be payment of separation pay - half perform his services and receives his
month pay for every year of service compensation
- immediately self-executory pursuant to the
e) Closure of business Pioneer ruling, there is no more need for a writ of
Requirements: execution
1. 2 separate notice rule - notice to the DOLE and b) Payroll
30 days notice to the EE to be discharged; - he does not perform his services but receives his
2. It must be done in good faith compensation
3. Proof of financial pay
4. No payment of separation pay • ER is given the option to reinstate either actually or in
the payroll.
f) Analogous causes • The ER may reinstate an employee in the payroll if
the actual reinstatement is no longer possible.
CONSTRUCTIVE DISMISSAL 2 reasons:
- It is a dismissal in disguise; this is quitting of the job since (i) the ER believes that there was valid cause for
continuing the employment has become impossible, the dismissal
unreasonable, unlikely and unbearable under the (ii) ER does not want to see anymore any
circumstances. unwanted face in the company premises bec. it
- Authorized dismissal done in bad faith will amount to may demoralize other workers
constructive dismissal. It is an involuntary resignation or
serious insult or unbearable treatment to EE that will force Q: Is there violation of “no work, no pay” in payroll
him to resign. reinstatement?
examples: A: Generally, yes. BUT since it is the mandate of the
1. Demotion in rank law, although it is harsh, there is no violation under the
2. Outsourcing beyond 6 months dictum dura lex sed lex.
3. Resignation - voluntary in nature BUT if it is due to
being oppressed this will amount to constructive • In the event that the ER is stubborn and does NOT
dismissal want to reinstate the EE, the lawyer should do the ff:
4. Preventive suspension - should not be beyond 30 (i) File a motion for contempt against the ER;
days otherwise it will be constructive dismissal (ii) File a motion for the payment of monthly
salaries;
Resignation (iii) Cause the issuance of writ of execution only for
- It is a voluntary act of the EE where personal the reinstatement w/c is motu proprio on the
reasons cannot be sacrificed in favor of the part of the LA
expediency of the service;
- to be valid, it must be done in writing by the EE 2. Backwages
and the acceptance must also be in writing. - restoration of the loss income brought about by illegal
dismissal
Q: Can you withdraw resignation prior acceptance? - he should be paid separation pay as a form of
A: Yes. compromise to reinstatement, if reinstatement is not
Q: After acceptance? possible
A: No more because there is already
termination of ER-EE relationship. • Refund Doctrine (Gino-gino case) is already
abandoned by Garcia v. PAL
• If the EE insists on coming back and the ER accepts, - Refund salaries pending appeal is NOT
he should be treated as a new EE. allowed anymore or else it is unjust
enrichment.
Q: May resignation be done verbally?
A: The verbal resignation can be accepted because 3. Damages, attorney’s fees and other benefits
there is no legal prohibition as long as it is accepted - it is NOT only stated in the LC but also in NCC.
through writing. - moral damages is proper when dismissal is done in
bad faith or against the law etc.
RELIEFS FOR ILLEGAL DISMISSAL - exemplary damages is proper when dismissal is
• If there is violation on the substantive (act) & done in oppressive, whimsical, arbitrary manner
procedural (manner) aspects of due process, there is - moral and exemplary damage can be of equal
an illegal dismissal. amount depending on the LA
• You may file it w/ Regional Arbitration Branch of the - attorney’s fees in Art. III of LC shall not exceed 10%
NLRC having territorial jurisdiction of the workplace of (this should be awarded to the winning party/
the complainant. dismissed EE); he was compelled to litigate, in
process he incurred litigation fee.
Q: What are the normal consequences of illegal • can award less than 10%
dismissal?
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Updates by CRUZ.DE DIOS.RUIZ ’17-’18

 • a t t o r n e y ’s f e e s i n a f o r m o f d a m a g e s - If there is a violation of the substantive and procedural
(extraordinary concept) aspect — there is ILLEGAL DISMISSAL

There are attorney’s fess in ordinary concept: Where to File Illegal Dismissal:
a) lawyer/ retainership fees • Regional Arbitration Branch of the NLRC having territorial
b) acceptance/ appearance fess jurisdiction of the workplace of the complainant.
• RAB – “over the workplace”
4. 6% legal interest on monetary award to the
illegally dismissed EE
A. Before it is filed with the LA:
Twin relief of illegal dismissal • It will be filed with the Single Entry Approach Proceeding
Reinstatement and payment of full backwages from the (SENA).
time he was illegally dismissed until he was actually Purpose: Amicable Settlement
reinstated.
B. If SENA is terminated because there is no
INSTANCES WHEN REINSTATEMENT IS NOT PROPER: settlement reached by the parties, it will now be
a) Dismissal for Cause raffled with the LA.
b) Employee does not want to be reinstated
c) Laches or Waiver 1) Once it has been received by the LA,
• Unreasonable Delay in claiming your right to - it will be scheduled for the first 2 preliminary conference
reinstatement (PC) for the purpose of amicable settlement.
- Employee can still look for a job while waiting for the • It is a mere duplication of SENA.
outcome of his case, and even if there is already an - There is no prohibition upon the LA to grant another
order of reinstatement, he cannot be charged that the PC if it was moved by one or both parties. Although
has already waived his right to be reinstated because in there are only 2 PC under the rules, it may still be
the meantime, he is earning to feed his family. granted, even if not provided in 2011 Rules of
Procedure.
d) Strained relationship w/ the ER
• This cannot be used by the ER just to thwart or frustrate BASIS: ART. 221
reinstatement • “Technical rules are not binding and prior resort to amicable
- There should be extreme reasons to justify strained settlement”
relationship - Relaxed in labor proceedings because the purpose is
- There should already be sever antagonism where the administration of speedy labor justice.
ER and EE cannot look at each other eye to eye
anymore 2) If after the PC, there is no settlement reached:
- As a form of compromise to reinstatement a) The LA will require the parties to simultaneously
o Backwages and Separation Pay submit position papers
- This is called Position Paper Proceeding
e) The position was already abolished or filled-up - Not a violation of due process because
- Legal Impossibility the parties are already given
- He should be reinstated in a substantially equivalent opportunity to be heard
position - This is substantial compliance with due
- If this cannot be done, the remedy is payment of process
separation pay plus backwages as a form of OR
compromise. b) The LA can go on with the case on a trial type
proceeding
f) Prescription is four (4) years - Subject to LA’s discretion and not the parties.
- Four (4) years also in illegal dismissal cases
3) If the position papers were submitted on the scheduled date
g) Physical Disability - They will require a reply
- May undergo medical examination to determine fitness to • A reply under the rule is the last pleading.
work. • Submitted for resolution (30 days), while OFW cases
• If you have a contagious disease, you cannot be (90 days)
reinstated
- Occupational disease is compensable 4) After a decision is rendered and there is a finding of illegal
dismissal:
Personal Comfort Doctrine - The reinstatement is immediately self-executory
- Providing comfort and convenience - No more writ of execution
- Injury or death is compensable
- Act of State If you were the Lawyer, ask the Client if he would APPEAL
- Not conducive to working harmony or NOT!
- Employee is too old • If they file a MOTION FOR RECONSIDERATION, he must
- Law does not provide reinstatement comply with the requirements of appeal.
• Kasambahay Law; Migrant Workers Act; Kulangot - In one SC decision, MR was treated as a mode of
Doctrine appeal.
- Principle of Fiduciary Relationship
• Upon receipt of the decision of the LA, you have 10
PROCEDURE IN ILLEGAL DISMISSAL CASES calendar days to appeal.
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 o UERMMC Case, wherein the Employer can post
Q: The EE won in the case, but there was no bond provided value of property is substantial to
reinstatement as decided by the LA, the EE cover monetary award.
appealed. In the commission level, they ordered Q: Can you post 10% for perfecting an appeal?
reinstatement provided in the decision of the NLRD A: No.
and not the LA, is reinstatement immediately • In Macberry v Ganzon, the SC allowed 10%
self-executory? initial amount.

(4) APPELLATE JURISDICTION

A: NO. 1. Before it is assigned to a ponente commissioner, there
NOTE: will be a consultation.
If done by the LA – YES - Purpose is to prevent a one-man decision
If done by the NLRC, COMMISSION LEVEL –
NO because it requires issuance of a motion Q: What if before the commissioner decides on the
merits, he required the parties to have a conference
REQUIREMENTS OF APPEAL for purposes of amicable settlement? Is this allowed?
A: No legal prohibition. Technical rules and
a. Payment of docket fees procedures are relaxed in labor proceedings.
• If not paid, appeal will be dismissed because it is a matter
of jurisdiction Q: If no amicable settlement, they submit for
decision. If the LA affirmed in toto by the commission,
b. Submission of a memorandum of appeal the employer loses again. What should the employer
• Copy furnish the other party do?
• Mere procedural or formal lapse if you do not give a copy; A: File a motion for reconsideration within 10 days
not fatal from receipt
• File answer within 10 days from receipt of memorandum
of appeal Q: What are the purposes of the MR?
A:
c. Posting of the appeal bond - To rectify the error committed
• Two Types of Bond to be posted: - To comply with the exhaustion of administrative
o Cash remedies
o Surety - The MR is a requisite sine qua non prior certiorari
– issued by a reputable bonding company
Q: What if, MR is denied, and upon receipt of the
Q: What is the requirement of the law on bond? denial, how many days to file a petition in Rule 65?
A: Monetary minus damages and attorney’s fees A: 60 days

Q: Does the LA fix the amount of the bond? Q: What should be included in the petition?
A: No. LA is not allowed to fix the appeal bond. The law A: Three essential dates
itself fixes the appeal bond - Date of receipt of the decision of the NLRC
- Date when MR was filed
Q: How much are you going to post? - Date of receipt of the denial of the MR
A: Reasonable amount of the bond
Q: In your petition to the Court of Appeals
Q: Can the appellant employer file to reduce bond? A: Submit 3 hard copies and the soft copy & pay the
A: Yes, but should be filed during the reglementary period docket fees and other fees.
to appeal accompanied by posting a reasonable amount of
the bond. 2. If duly receive by the CA, it will be raffled.
• The raffling of cases in the CA is always
Q: What is he did not post a reasonable amount of the observed and participated by one justice.
bond, instead he posted 10% of the monetary award. Is • Every raffling day, there is assigned justice of
this allowed? CA.
A: In the case of Mcburnie v Ganzon, 10% is allowed but
applicable only for the purposes to reduce the bond but 3. Before it is assigned to a Justice member, there will be
not to perfect an appeal another consultation
- To prevent one-man decision
Q: What if he filed to reduce bond but did not post bond,
what is the legal effect? Q: What if the petition is lacking in form because he
A: The decision of the LA will become final and executory only attached photocopied documents?
under the Doctrine of Immutability of Final Judgment. A: They will ask you to submit certified copies; The
XPN: Backwages are continuous/addup until fully CA may require the other party to submit a comment,
satistfied; Can file motion for recomputation of backwages answer, or reply.
even if decision is already final
Q: Upon submission of the petition, what is the other
d. Personal Service party was not notified to submit a comment? Can you
submit a comment without being notified?
e. Approval of the record of appeal A: Yes. Submit with leave of court.
• XPN to Bond:
Notes and comments by Dean Salvador A. Poquiz Page 7 of 17

Transcribed by A.A. Dizon ’15-’16 LABOR RELATIONS REVIEWER

Updates by CRUZ.DE DIOS.RUIZ ’17-’18

4. Usually, for the settlement of backwages and reward,
there is mediation, but if there is non, then it will be Q: What are the grounds for a motion to quash?
decided on the merits based on the documents A:
submitted. 1. That the decision of the LA is incomplete
2. The amount of the awards is not provided in the
When all the documents have been submitted, the dispositive portion
CA will notify the parties that it be submitted for 3. That the decision by which execution is based is
resolution. a product of graft and corruption
4. That the writ of execution is irregularly issued
5. That the writ of execution was issued against the
• If they lose – file an MR client who is not a party to the case
• If denied – file it within 15 days
TYPES OF EMPLOYMENT
Q: Can you file a motion for extension of time to file?
A: Yes. (1) REGULAR
- Has been engaged to perform activities which are
SUPREME COURT usually necessary or desirable in the usual business
or trade of the employer
GR: File with the SC on the ground that there are purely - Has rendered at least one year of service, whether
questions of law and GADALEJ such service is continuous or broke, with respect to the
o Because CA is their fact-finder activity in which he is employed.

XPNs: 2 Types of Regular Employment:

- If there are mere speculations a. As to the nature of work
- Possibility that there were facts not given serious - That the EE performs the job that is
consideration or if given consideration, this may amend or usually necessary and desirable in the
modify the decision usual business of the employer
- The decisions of the LA, NLRC, CA are contrary to each
other; in collision or at odds at each other; when the b. As to the years of service
decisions are diametrically opposed to each other. - At least one year of service, whether
continuous or with intervals
Before Entry of Judgment
Q: If the SC still decides against the ER, can he file an • Mechanic – Regular because UND
MR? • Carpenter – Not regular; Only performs incidental work to
A: Yes. the principal action; Casual employee
o UNLESS he renders work for 10 years i.e. auto
Q: If the MR is denied, can you file MR over the denial? repair shop
A: Yes.
Other types of Regular Employment:
Q: If denied again, can you file another MR? (i) 555 Doctrine
A: Yes. - Constant renewal of contract
- Successive and constant rehiring
• You can file until finally, the SC issues a resolution that you - Falls under regular employment
cannot anymore file a motion, otherwise, it will be dealt with (ii) Probationary EEs
accordingly. - upon expiration of the probationary period, he
becomes a regular employee
Entry of Judgment (iii) Project EEs
• Pre-execution conference - if hired constantly, they ceased to be project
• The decision will now go down to the level of the LA for employees but they become regular employees
purposes of execution
• In the case of Millares v NLRC and Zamora case, despite
Q: What will the prevailing party do? constant rehiring, the employee will never become a
A: File a motion for the issuance of a writ of execution, regular employee i.e. seafarer.
but the LA will not just issue a writ, the motion shall be
subject to a hearing. (2) CASUAL
(3) CONTRACTUAL
Q: The losing party can still appeal. What if the (4) PROBATIONARY
respondent ER did not appeal? - Period to learn the job
A: Upon expiration of the period to appeal, you can file a - Period of evaluation
motion for the issuance of the execution. This will be - Prelude to regular employment
subject to a hearing. There will be a pre-execution - Training ground
conference.
GR: 6 months for probationary period
• When the decision is already ripe, for enforcement, then you XPN: The ER-EE can agree on probation below or
can file a motion for the issuance of a writ of execution. beyond 6 months, depending on the technicality of the
work
Q: For the losing party, can they still protect their interest?
A: Yes. File a motion to quash the writ of execution.
Notes and comments by Dean Salvador A. Poquiz Page 8 of 17

Transcribed by A.A. Dizon ’15-’16 LABOR RELATIONS REVIEWER

Updates by CRUZ.DE DIOS.RUIZ ’17-’18

 • PLDT case – nature of the job required extensive
training, probation was agreed to be beyond 6mos. Q: What is retirement?
• In case of teachers – full time satisfactory service A: Bilateral act between employer and employee where
for 3 years the latter upon reaching a certain age, has to separate
himself from employment in order for him to enjoy yhe
Q: What about apprenticeship and learnership, is this a remaining years of his life.
training period?
A: Yes Q: Age of retirement
A:
Q: If the training period in the apprenticeship and Compulsory – 65 y/o
learnership expires, should it be considered as Optional – 60 y/o
probationary period? Underground Miners – 50y/o
A: Yes
Q: Component parts of retirement
Q: What if a week before the apprenticeship is done, the A: 22.5 x # of yrs of service
employer told the apprentice that he will consider him a - 15 days a month for every year of service
regular employee, but before you become a regular - 5 days service incentice leave
employee, you have to undergo probationary period, is - 1 ½ for 13th month pay
this valid?
A: No, that would amount to double probation that is not Q: Can additional benefits be included in the retirement
allowed by the law. pay?
A:
(5) SEASONAL GR: No
- If the employee was employed from season to season XPN: Unless they are voluntary benefits agreed by
performing the same task, he is a regular seasonal the parties
employee.
Q: May the employer and union agree on an early
(6) PROJECT retirement plan?
- Akin to contractual employment A: Yes
- After project, automatic termination of ER-EE
relationship. Q: Employer and union agree that an employer for a just
- Constant rehiring of a project employee, he becomes a cause is not entitled to retirement benefits, is it valid?
regular employee A: SC said it is valid; not against public policy
- Upon termination of every project, the employer should
submit a report on termination of projects to the nearest PRESCRIPTION
DOLE office.
o Legal Consequence: Project becomes regular • 3 YEARS
- Not entitled to normal consequences of illegal dismissal - Purely money claims
because employed for a fixed term. - Incremental proceeds from tuition fee hikes
- Employees compensation claims
(7) NON-PROJECT - Union funds
- Service Incentive leave from the receipt of the claim of
3 types of Non-Project the employee
a. Casual – Perform incidental work - Criminal cases under the labor code
b. Probationary – After 6mos becomes XPNs:
regular - ULP – 1 year
c. Regular - Simple Illegal Recruitment – 5 years
- Syndicated illegal Recruitment – 20 years
Q: If the project/non-project are employees belonging to - Large scale/qualified illegal recruitment – 20
the work pool, they can be taken out any time and be years
assigned from one project to another. If you were
assigned in Phase 1 Project A then at Phase 3 of Pr- ject • 4 YEARS
B, is this valid? - Illegal Dismissal
A: Yes. You are an employee belonging to the work pool, o Violation of constitutional right to property
then you are treated as a regular employee o Right to security of tenure based on due process
and equal protection clause
• In apprenticeship, if the contract was prematurely - GSIS Claims
terminated, the apprentice does not automatically become a XPN:
regular employee Retirement and life insurance claims –
• In learnership, the learner becomes a regular employee if Imprescriptible
contract was prematurely terminated provided that he has - Reinstatement
already been trained for two months.
• 10 YEARS
RETIREMENT - Social Security Claims
• The Labor Code is not a source of retirement benefits before
but the IRR provided for it until the law on retirement (RA • 20 YEARS
7641) has been enacted. Now, it is a source of retirement - To collect contribution of employers
benefits.
Notes and comments by Dean Salvador A. Poquiz Page 9 of 17

Transcribed by A.A. Dizon ’15-’16 LABOR RELATIONS REVIEWER

Updates by CRUZ.DE DIOS.RUIZ ’17-’18

MONEY CLAIMS 1. AUTHORIZED STRIKE
- A strike that is approved by the majority of the total union
GR: If more than P5K, LA has jurisdiction members
XPNs: - Upon the union’s consent
1. Provided in the original Article of 263-G, on assumption of Q: How would you determine approval or consent of
jurisdictions workers in union?
- That the assumption power is by nature PFCD. You A: This is done through strike voting
cannot fault the Secretary of Labor in assuming
jurisdiction in labor dispute. Q: What is the purpose of this AS that it should be
- If one of the instances under assumption is money approved by the union members?
claim, even if it’s P5k below or above, since one of A: The SC said, the purpose it to prevent a wildcat strike,
there is under assumption, the President or Secretary prevent corruption.
has jurisdiction
2. WILDCAT STRIKE
2. Under Art. 126 of the LC - Unauthorized strike
- Visitorial, inspection, and enforcement power of the - Without approval of union membership
Secretary of Labor, but this is exercise through the
Regional Office of the DOLE 3. PARTICULAR STRIKE
- It it’s a money claim, regardless of the amount of the - In one particular business establishment where a strike
claim, Regional Office has jurisdiction is staged
- Confined
Q: How may the RO take cognizance of a money
claim regardless of the amount? 4. GENERAL STRIKE
A: Can be motu proprio, by way of a labor standards - Political, sympathetic type of strike that is staged against
complaint filed by any employee. On the basis of the non-employers because it’s a strike against the
labor standards complaint, the RO through the RD government
issues an inspection audit. Audited for the purposes - Covers a wider area of staging a strike.
of determining WON the employer complies with - Strikes by jeepney federations; transportation strikes
labor standards rules and regulations.
Q: Why sympathetic?
3. Money claim pending with the LA can still be transmitted A: No ER-EE relationship
for voluntary arbitration by agreement of the parties.
5. SLOW DOWN STRIKE
Q: Where is the document required under the law, - To reduce production
for the voluntary arbitrator to take cognizance of the - Illegal because it violates the ‘no work, no pay’ labor
case? principle
A: This is what we call “Submission Agreement”.
The vital industry dispute can be resolved by a 6. SIT DOWN STRIKE
voluntary agreement of the parties. - Other form of slow down strike
- Worker are confined in the plant, they reduce to perform
• All the matters of employer-employee relationship, the the work for a short period of time. After some time, they
LA has jurisdiction resume.
• Damages – the usual consequences of an illegal - Also violates ‘no work, no pay’ principle.
dismissal:
a) reinstatement 7. QUICKIE STRIKE
b) payment of backwages - Impromptu
c) 6% etc. - Of short duration
• The LA can award damages, attorney’s fees, and other - Outside of the company premises
backwages
8. BRIEF
9. ORDINARY
STRIKES AND LOCKOUTS 10. ECONOMIC STRIKE
- A result of a bargaining deadlock on economic issues
• Any stoppage of work by concerted action of employees as - With the breakdown of the negotiation process, the
a result of any industrial or labor dispute union can file a notice of strike directly with the NCMB
- No such thing as permanent strike - There are economic concessions where the employer is
- Counterpart of strike is lockout not ready to five, that is why there is economic deadlock.
- ULP because this is a strike staged in violation of the
Active Parties constitutional right of workers to self-organization.
- Employer
- Employee 11. SYMPATHETIC STRIKE
- Staged against a non-employer
Passive Parties
- Government 12. UNION RECOGNITION STRIKE
- Public - To compel the employer to recognize one’s union as the
employee’s bargaining agent.
TYPES OF STRIKE:
Notes and comments by Dean Salvador A. Poquiz Page 10 of 17

Transcribed by A.A. Dizon ’15-’16 LABOR RELATIONS REVIEWER

Updates by CRUZ.DE DIOS.RUIZ ’17-’18

 Q: Four modes in determining the bargaining agent/ o If no representative, not fatal. Important is that
contracting union/bargaining agency? they were notified.
A:
1. Sole Exclusive Bargaining Agency (SEBA) 6. Strike Voting
Certification 7. Submission of the strike voting
2. Consent Election o 7 days waiting period
3. Certification Election
4. Run-off Election Sabay tayo Doctrine
5. Re-run Election - Same day for notice of strike and strike voting
Q: Is strike one of the modes in determining the • No prohibition provided you complied with the 24-hour prior
bargaining agent? notice rule and other requirements
A: No • During the cooling off period, an officer of the union was
dismissed which constitutes union busting.
• In Pascual Liners case, he union staged a strike for the
purpose of compelling the employer to recognize them as Q: If there is a union busting, can a union immediately
the bargaining agent. That is illegal because strike is not stage a strike?
one of the modes in determining representation status. A: The SC said, if you have already complied with other
requirements, you can immediately stage a strike. You
13. LIGHTNING STRIKE can dispense with the cooling off period but you can
- Of short duration never dispense with the 7-day waiting period.
- Brief and Concise
- Without compliance with the requirements of a lawful • In the case of strikes in union hospital or clinics, the parties
strike. are required to establish an effective skeletal workforce. If
there are patients in the emergency and ICU area, and there
14. LABOR PRACTICE are no medical helpers to assist, then it would be a problem.
15. GOOD FAITH STRIKE This is the philosophy behind why there should be an
- Illegal; not a defense in a strike said the SC in the case effective workforce schedule.
of Grand Boulevard Hotel v Dacanay.
- In GF strike, the union stages a strike on the ground that 8. Compliance with the doctrine of means and
the employer was committing ULP but it was later on purposes
found out that the employer was not committing ULP, in - The purpose must be legal and the means used in
the meantime the union held a strike without compliance attaining it should also be legal.
with the requirements of staging a lawful strike. - Must comply with all the requirements
16. LEGAL STRIKE Doctrine of Means and Purposes
- In conformity with the requirements that are not complied • If illegal means were committed during the strike, according
within declaring a strike to the SC, the union cannot use slanderous, libelous,
scandalous, scurrilous, utterances.
17. ILLEGAL STRIKE • If there is massive violence, also illegal.
- There were requirements that are not complied with • In case of the declaration of illegality of strike, those who are
declaring a strike liable for dismissal are the officers of the union under the
doctrine of vicarious liability.
Requirements for Staging a Lawful Strike
1. There must be a collective bargaining Q: Officers of the union participated during strike. Liable?
o It must be based on a lawful and factual ground A:
2. It must be approved by the total union membership GR: Not liable for ordinary strike
3. It should be declared only on two strikable issues XPN: If actively participated, they can be dismissed
a. CBA deadlock BUT must be categorically identified, if not, violation
b. ULP of due process.
4. Filing of notice of strike
o File it with the NCMB (Nat’l Conciliation & Q: Will they be entitled to economic benefits?
Mediation Board) A:
o If it is economic - 30 days; if ULP – 15 days GR: No, because of the no work no pay principle
(pulling off period) XPN:
o Notice of cooling-off period 1. On paying the backwages
- To reduce the tension, heightened emotion 2. If the strikers were discriminatorily dismissed
or if they did not strike but were actually
• Pulling-off period illegally locked-out by the employers
1. Principle of Improved offer 3. The strikers unconditionally offered to return
2. Principle of Reduce offer to work but it was rejected by the employer
- From the time of rejection, the strikers
5. Compliance with the 24-hour prior notice rule are entitled to backwages
o Notify the employed and NCMB of the place,
date, and time • The offer to return to work of the striking workers should be
o In order for NCMB to send a representative unconditional.
during strike voting
Q: Can Right to Strike be waived?
Notes and comments by Dean Salvador A. Poquiz Page 11 of 17

Transcribed by A.A. Dizon ’15-’16 LABOR RELATIONS REVIEWER

Updates by CRUZ.DE DIOS.RUIZ ’17-’18

 A: Q: Over third-party claims because a writ of execution is
GR: No issued against a party?
XPNs: A: LA
1. No strike no lockout clause in the CBA
2. In case of assumption order issued by the Q: Money claims filed by the employees who are members
President of a cooperative?
3. In case of Preventive Mediation Order A: Arbitration Committee has jurisdiction

LOCKOUT • Members of cooperative cannot file money claims against

• A weapon of the employer; same requirements in cooperative since they are part-owners of the cooperative
staging a strike; refusal to furnish work to employees
Q: Over Foreigner Government?
HOW TO HAVE AN EFFECTIVE STRIKE A: LA has no jurisdiction
• There must be an effective picketing to have a strike
Q: Over PH government?
Q: Can there be picketing without a strike? A: LA has no jurisdiction
A: Yes. Picketing is a guaranteed freedom under the
constitution. In the words of US SC, stranger picketing is Q: Under the Principle of State Sovereignty?
constitutionally guaranteed. It was resounded by the PH A: COA
SC as part of freedom of expression.
• Any money claims filed against the government should be
Q: During picketing period, illegal acts committed affected with the COA
third persons. ULP?
A: Yes, notwithstanding no ER-EE relationship. Doctrine Q: Does LA have jurisdiction over international
of Innocent Bystander. agencies?
A: None; imbued with functional immunities
Strike of Government Employees
• Not applicable Q: Does LA have jurisdiction over intra-corporate cases?
• They are granted the right to collective negotiations A: None; RTC (no longer the SEC under Securities Act
• Beyond CAN of 2000)
o Matter fixed by Law
o Those that pertain to appropriation/Budget • Corporate officers are created by board – LA has no
(constitutional prohibition) jurisdiction
o High level employees • If not corporate officer and he was dismissed – LA has no
jurisdiction
- Private Sector – Collective Bargaining Agreement
- Public Sector – Collective Negotiation Agreement Q: Does LA have jurisdiction over training agreements?
A: None; DOLE
It is settle that Government Employees cannot stage a
strike because: GR: LA has no jurisdiction over
1. It will be a form of insurrection against public authority in - Death Claim
the light of the principle of state sovereignty. This principle - Philhealth
disqualifies government employees to stage a strike - Insurance Claim
2. Government employees are civil servants. They serve the XPN: Section 10, RA 8042 (Compensation claims of
people that is why if they strike, such strike is a civil overseas workers)
service offense. (PD 807)
3. It will affect the delivery of vital and basic services to the BUREAU OF LABOR RELATIONS (BLR)
people • The powers, functions, and jurisdiction of the BLR are
intertwined with the powers and functions of the Regional
XPN: GOCCs without original charters known as Office of the DOLE
corporate offsprings or subsidiaries wherein they can • Except conciliation matters
CBA and strike. • In case of registration of unions and federations, BLR. In
case of registration of independent unions, RO of DOLE
Some Government Employees who cannot strike:
- High level employees RIGHT TO SELF ORGANIZATION
- Members of the AFP, PNP, BJMP, and Firemen
GR: Applies to all
JURISDICTIONAL AREAS XPN: (Those disqualified by law)
1. Managerial employees
Q: Does the LA have jurisdiction over matters involving 2. Members of the cooperatives
certain churchmen? Austria v NLRC 3. Confidential Employees entrusted w/ confidential
A: On secular matters – YES information
On purely religious matters - NO - Kulangot Doctrine/ Confidential Employee Principle:
On matters of labor relations ONLY – they cannot
Q: Issuance of writ of execution form union
A: LA 4. High level employees in Govt Sector
5. Members of the AFP, PNP, BJMP, BFP

Notes and comments by Dean Salvador A. Poquiz Page 12 of 17

Transcribed by A.A. Dizon ’15-’16 LABOR RELATIONS REVIEWER

Updates by CRUZ.DE DIOS.RUIZ ’17-’18

 Q: Can aliens or non-resident aliens form a labor union? - Any union can file to be a SEBA in a bargaining unit
A: - Only 1 union can be certified or recognized as a SEBA
GR: NO. - Similar to Voluntary Recognition:
XPN: Principle of reciprocity – if their country o There is only 1 union in the bargaining unit
extends the same rights of Filipino workers o It should have majority support

Q: Under the Constitution and Labor Code, what is the 2. CONSENT ELECTION
labor organization that is contemplated? - Election voluntarily agreed upon by 2 or more unions, w/
A: Legitimate labor organization – one that is registered or w/o intervention of the RO of DOLE, to conduct an
either with the BLR or RO of the DOLE. election to determine the bargaining agent in the
bargaining unit.
REQUIREMENTS FOR REGISTRATION - Between & among unions in the unit, they have
–— to be legitimate labor organization consented among themselves to conduct an election.
1. Payment for registration fee
2. Submission of the constitutional bylaws 3. CERTIFICATION ELECTION (CE)
3. Names of officers and members - The process of determining thru secret ballot, the sole
4. In case of first time registration: and exclusive bargaining agent of the employees in an
- Minutes of the org meeting by Sec/ Treasurer of the appropriate bargaining unit, for the purposes of collective
union requested by President bargaining.
• If the union is already existing for some time:
- Financial statement of the union • Sole concern Rule
- It is the sole concern of the workers/ employees
• Upon submission, it is now ministerial on the part of the RO
of the DOLE to issue a certificate of registration • Bystander Rule
compellable by Mandamus. - The employer, who has no legal standing, is a
mere bystander in certification election
LEGAL EFFECTS OF REGISTRATION: - Limited to being notified or informed of the filing
(Rights of a legitimate labor organization) of the petition for CE
1. Right to representation XPN: May file a petition for certification
- This applies ONLY to union members election in order to determine WON this
2. Right to be certified as the bargaining agent in the union has the majority status
company
- Applies to ALL employees • Best Forum Rule
3. Right to sue and be sued in its registered name - Most efficacious, most expeditious manner in
4. Right to own property determining the will of the employees
5. Right to tax exemption
6. Right to engage in activities that redounds to the welfare • Double Majority Rule
of the members of the union - First Majority Rule
7. Right to be copy furnished w/ the audited financial • At least a majority of all eligible voters in
statement of ER – upon request of union the bargaining unit must have cast their
- Employer will ONLY be liable for ULP (Surface votes
Bargaining) if there is request coming from the union. - Second Majority Rule
- Audited FS should be prepared by an independent, • The union receiving the majority of the
credible, external auditor. Not company auditor valid votes shall be certified as the
otherwise it would be self–serving. exclusive bargaining agent (provided for
all contending unions, 50% of the votes
THE RIGHT TO BE CERTIFIED AS COLLECTIVE have been validly cast)
BARGAINING AGENT
4. RE-RUN ELECTION
Q: What is Agency Shop/ Treasury Shop/ Anti-Hitchhiker - Subsequent certification election
Clause / Anti- Free Rider Clause? - 3 instances:
A: Requires non-members to pay fees equivalent to the a. There is failure of Certification Election as
amount of union dues. declared by the election officer (below 50% votes
cast)
Q: Is there still a need to conclude an agency shop to be b. There is a tie between 2 unions
concluded by the parties in the CBA? c. There is a tie between a union and a non-union
A: No more need because law itself provided agency
shop. It’s in the law stating that non-union members who 5. RUN-OFF ELECTION
received CBA benefits are required to pay fees (agency - Automatic second election rule: 50% votes cast but no
fees) equivalent to the amount of union dues to support one garnered majority vote
the union that made the benefits possible. - When an election which provides for 3 or more choices,
- Or else there will be unjust enrichment. results in no choice receiving a majority of the valid
votes cast, the election officer shall motu proprio
MODES OF DETERMINING COLLECTIVE BARGAINING conduct a run-off election bet. the labor unions receiving
AGENCIES IN THE BARGAINING UNIT the 2 highest number of votes.
- Provided that the total number of votes for all
1. SEBA (Sole Exclusive Bargaining Agent) contending unions is at least 50% of the number of
CERTIFICATION votes cast.
Notes and comments by Dean Salvador A. Poquiz Page 13 of 17

Transcribed by A.A. Dizon ’15-’16 LABOR RELATIONS REVIEWER

Updates by CRUZ.DE DIOS.RUIZ ’17-’18

 XPN: within 60-day freedom period immediately
CERTIFICATION ELECTION (Further discussion) preceding the 5th year of such CBA (prior to the
Consent/ subscription requirement to conduct CE expiration of such CBA)
• 25% of all the employees in the appropriate bargaining unit
- If met mandatory to conduct CE • As to representation: 5 YEARS
- If not met, discretion of RO of DOLE • As to negotiation: 3 YEARS

Vote requirement Q: What if there were negotiations, at the end of the 3rd
• 50% majority vote year the terms and conditions were approved by the
parties, ratified by the employees.
Q: What if the 25% consent requirement is not complied
with, may a CE be conducted? What is the duration of the validity of such terms and
A: Discretionary upon the RO of the DOLE to conduct CE. conditions re-negotiated not later than the end of the 3rd year
Reason: Because in conducting CE, even if 25% is not of 5-year representation aspect of the CBA?
met, this is the most expeditious manner in determining A: Period of validity – 2 years
will of employees.
Q: What if the 5-year representation aspect of the CBA (old
Q: If below 50% there is no valid CE – there is failure of CBA) expired, no new CBA has been agreed upon, is there
CE. If there is failure, what is the legal effect? hiatus bet. the relationship of employees to the union?
A: Re-run election. If there is failure, w/in 6mos, by motion, A: NONE. Automatic Renewal Clause
a CE can be filed. - Law provides that the old CBA will subsist under the
principle of CBA continuity.
Q: Who declares failure of CE?
A: Election officer Q: What if CBA exists, and during the lifetime of the CBA,
there was a change in the CB Agent. Effect?
Q: If 50% has been complied with but no one garnered A: Still valid, but there is no prohibition upon the new CB
majority vote, what is the legal effect? agent to shorten the life of the CBA.
A: Run-off election. Automatic 2nd election. Legal basis:
• New CB agent can move for shortening on the
NO UNION ground that nature of CBA is a contract in
• Situation wherein there are 3 or more choices but a “no personam.
union” won: • Substitutionary doctrine: allows the
- A no union may win on account of freedom of religion. substitution of the old CB Agent with the new
There are religious groups allowed by law not to form CB agent – but it will not affect the validity of
unions (Iglesia ni Cristo) CBA contracted by old CB agent.
- A non-union cannot exist in a run-off election.
60 DAY FREEDOM PERIOD
Q: Why does the constitution allow certain religious groups • CE shall be conducted in the 60-day freedom period
NOT to join labor unions? • Can also file a petition for intervention during this period.
A: Bec. Freedom of religion is freedom of conscience • Federations can also file petition for disaffiliation from the
federation of a member union.
Q: If a no union won, does the law allow that in a
bargaining unit, there will be no union for some time? 2. ONE-YEAR CERTIFICATION BAR RULE
A: No union situation rule will be allowed only for 1 - No CE conducted within 1 year following the final
YEAR. There will be a certification to that effect that in the election results
meantime for 1 year, there will be no union. Those - CE may not be held within 1 year from the date of
religious groups may still vote in CE by voting “no union”. issuance of final certification result (there was an actual
conduct of elections)
WHO CAN VOTE IN A CERTIFICATION ELECTION - Applies to all modes of determining CB agencies
• ALL rank and file employees
• Probationary employee 3. DEADLOCK BAR RULE
• Dismissed employee - CE cannot be conducted during the existence of a
- Provided he contested his dismissal. bargaining deadlock
- If he contested, that means the EE-ER relationship is - During the bargaining process, bargaining may break
just suspended. down, economic concessions cannot be given out by the
employer – it will create a deadlocl
Q: Do you determine the eligibility of voters in the CE? - When you file a notice to strike due to bargaining
A: NO. The CE is not proper forum. The proper forum is deadlock – it prohibits filing of CE
the “Inclusion-Exclusion” proceedings or the pre-
election conference. 4. OUTSIDE THE FREEDOM PERIOD RULE

 - A petition for CE or Motion for Intervention filed before/
INSTANCES WHERE CE IS BARRED/ CANNOT BE after the freedom period – shall be dismissed outright.
CONDUCTED – despite compliance with 25% consent
requirement 5. NEGOTIATION BAR RULE
- No representation issue may be entertained, if before
1. CONTRACT BAR RULE the filing of a petition for CE, the certified bargaining
- CE may not be conducted during existence of the CBA union has commenced negotiations with the employer w/
in 1year from date of mode of determining CB agencies.
Notes and comments by Dean Salvador A. Poquiz Page 14 of 17

Transcribed by A.A. Dizon ’15-’16 LABOR RELATIONS REVIEWER

Updates by CRUZ.DE DIOS.RUIZ ’17-’18

 3. CBA has been hastily entered into or prematurely
6. APPEAL BAR RULE extended
- Any representation issue, the one that has jurisdiction is - Done outside the 60-day freedom period.
the Mediation-Arbiter. - CBA has been prematurely extended.
- The ruling of the Med-Arbiter is directly appealable to the - Doctrine of premature extension – not bar CE
DOLE Secretary.
- Pending resolution to the appeal, cannot file CE. 4. In case of mass disaffiliation, mass withdrawal or
split from majority union
7. CHARGE OF COMPANY UNIONISM RULE - Union A (majority union members) transferred to
- This is ULP. The employer captivated the hearts and Union B. Union A despite lack of members can STILL
emotions of the union. bargain.
- Cannot conduct CE bec. It is a prejudicial question. - Until and unless the majority union is defeated in the
- The charge of ULP shall be resolved first before you can CE, in the eyes of the law, it is still the majority union.
file CE
Q: What if Union B filed for a CE. Union A contends that
Q: In the case of company unionism, can the union file for they filed outside the 60-day period. Is Union A’s
CE? contention valid?
A: No, because SC stated that it is a prejudicial question A: No. Because Union B can file a petition for CE outside
which should be resolved ahead of CE. However, there is the 60-day period as XP bec of mass withdrawal, split
a department order that said it is not a PQ. SC prevails. from the majority union.

8. NOT LISTED IN THE REGISTRY RULE COLLECTIVE BARGAINING AGREEMENT

- When the petitioner is not listed in DOLE’s registry of (Usual contents of CBA enumeration, check p. 20 of Dizon
legitimate labor union or that is legal personality has been Notes)
revoked or cancelled with finality.
GR: Only legitimate unions can file CE. Non- (1) UNION SECURITY CLAUSES
registered unions CANNOT file CE WHY?
XPN: RA 9481 - For union to have a mass based support, because thru this,
o A chartered local that is used a charter the union will be a strong union who can maintain its vitality
certificate by a federation or national union, in the bargaining process with the management.
such local chapter is granted with an imperfect,
partial, incomplete, legal personality “Closed shop agreement”
o Although not registered, it can file but only for Q: What is the important provision that should be
purposes of CE injected in the closed-shop agreement?
A: A union member should maintain his membership in
Federations are composed of 2 types: good standing to retain his employment.
1) Affiliates o If nowhere to be found: It is a mere hiring
2) Local chapters issued by chartered certificates agreement NOT closed shop agreement.

Q: May a local chapter become a full legal • SC: The title or nomenclature is not important, what is
person? important is the BODY which provides the proviso that the
A: Yes. By submission only of the requirements union member must maintain his membership in good
of the law standing in order to retain his employment. If not there –
• Charter certificate construed against its existence
• Consti bylaws - A closed shop agreement must be accompanied by
• Names of officers & addresses maintenance of membership shop
• Local chapter’s location and address - In union shop, once employed, you must maintain
membership with the contracting union and must
INSTANCES WHERE CERTIFICATION ELECTION IS maintain good standing also.
ALLOWED 

(Exceptions to the Contract Bar Rule) Q: Assuming closed-shop agreement is valid, can the
1. CBA is not registered union request the ER to dismiss an expelled union
- CBA is the law of the plant member?
• It shall be approved by the parties, ratified by the A: Yes. Upon request of the union.
employees, and registered to the RO of the DOLE
- Purpose of registration: To bar CE Q: If you are a lawyer of the ER, what will you advise if
- IF not registered: Any legitimate labor union can file there was a request from the union to expel the said EE
for CE. pursuant to the closed-shop agreement?
A: I will advise ER to observe due process. If ER did not
2. CBA is incomplete/ inadequate comply with due process even if there was a closed-shop
- Because of the collusion of the ER and the union, the agreement, it may amount to illegal dismissal.
contract became a sweetheart contract that does not - If ER observed due process – the only relief that may
provide substantial economic benefits to the workers. be imposed to the ER is REINSTATEMENT.
- The terms and conditions are substandard, o For other benefits: the union will be liable.
incomplete and inadequate.
- Will not bar CE (2) COMMON FORMS OF UNION SECURITY CLAUSES
(Enumeration, Dizon Notes p. 21)

Notes and comments by Dean Salvador A. Poquiz Page 15 of 17

Transcribed by A.A. Dizon ’15-’16 LABOR RELATIONS REVIEWER

Updates by CRUZ.DE DIOS.RUIZ ’17-’18

(3) MUTUAL OBSERVANCE CLAUSE of respondent’s illegal dismissal directly resolved by
- Some CBAs provide that upon signing the agreement, it the voluntary arbitrator.
has become effective, the parties are required to comply HELD: It is unnecessary to rule on the matter in light
with the terms and conditions of the CBA in good faith. of the preference to bring the illegal dismissal
- They shall be mutually observed in good faith. dispute to voluntary arbitration w/o passing thru the
grievance machinery.
(4) INCREASE IN WAGES
- Economic in nature. DECISION OF THE VOLUNTARY ARBITRATOR
- Escalator clause • The decision of the voluntary arbitrator (VA)– appealable
o In the event of sudden increase in the to the CA RULE 43 (ordinary appeal) pursuant to Luzon
consumer price index or cost-of-living index Development Bank case:
brought about by soaring prices of prime HELD: The VA no less performs a state function pursuant
commodities to a governmental power delegated to him under
o There is an agreement bet. parties that provisions therefor in the Labor Code – he falls w/in term
there should be a corresponding gradual “instrumentality” pursuant to Sec. 9 BP 129
increase of wages. - The fact that this functions and powers are provided
o If price decreases – wages not decreased. for in the LC does not place him w/in the XPNs to
said Sec. 9 since he is a quasi-judicial instrumentality
(5) NO STRIKE, NO LOCKOUT CLAUSE as contemplated therein.
- Waiver on the right to strike
GR: The right to strike cannot be waived • The decision of the VA has the legal effect of a decision of
XPN: Instances when right to strike CAN BE WAIVED: the court that is why it is appealable to the CA.
1. No strike, no lockout clause in the CBA
2. Issuance of an assumption order GRIEVANCE:
3. Issuance of a preventive mediation • In the absence of a CBA, a grievance may still be resolved.
order GM is not confined only when there is CBA.
- Any notice of strike is filed at the NCMB • A grievance is usually initiated by the EE, but there is no
- NCMB should issue a preventive mediation order and the legal prohibition upon the ER to initiate a complaint on
purpose of this is to convert the notice of strike in to a matters that involve any ambiguity in the enforcement or
preventive mediation case. interpretation of company policies and collective bargaining.

G R I E VA N C E M A C H I N E R Y A N D V O L U N TA R Y Attendance in grievance machinery:

ARBITRATION • Parties are required to attend the GM procedures.
- Also known as Conclusive Arbitration Clause • Fails to attend: This party can be liable for ULP bec.
- The judicial aspect of the CBA attendance in the GM is a requirement in the CBA
• There will be a violation of the CBA and this can be
Cases cognizable by the grievance machinery treated as an ULP – refusal to bargain
- Those arising from the interpretation or implementation of • Do not want to attend because they want it to be directed
the CBA and those from the interpretation or enforcement of to VA - ALLOWED
company personnel policies.
OTHER MATTERS COGNIZABLE BY VA
PROCESS: 1. Cases cognizable by the LA, transmitted for VA, by
1. Initially grievance could be resolved w/ the intervention of agreement of the parties
the union officer aka SHOP STEWARD who narrows - Submission agreement should be submitted to the VA
down the issues for resolution to the highest mgt officer so that VA can recognize the case
2. Still not resolved: It shall be brought to the resolution of - 2 remedies if any one of the parties does not want to
the grievance machinery submit:
3. Still not resolved: It shall be submitted for voluntary a) Notice to arbitrate – to compel other party to
arbitration. submit for arbitration
b) Submission agreement by virtue of the parties
Q: What is the nature of the transmittal from the
grievance machinery to voluntary arbitration? 2. Wage distortion problems in unionized establishments
A: The Labor Code answers this in the nature of an 3. Ordinary violations that will not amount to gross violation
APPEAL of the CB
4. Matters for compulsory arbitration
Q: If instead of submitting to the grievance machinery, ex. Illegal dismissal
they addressed it directly for voluntary arbitration, is - If illegal dismissal is submitted for VA, VA can take
this allowed? cognizance of other collateral matters like award of
A: Yes. SC said there is no prohibition and is in accord backwages and atty fees
w/ speedy labor justice.
5. Productivity incentives
In Central Pangasinan Case, - VA may resolve vital industry dispute by agreement of
Alleged violation of the CBA grievance procedure is the parties – submission agreement required
moot and academic. The parties’ active participation - It is allowed: RO of DOLE was appointed as VA
in the Voluntary Arbitration proceedings and failure
to insist that the case be remanded to the Grievance Administrative Intervention in an on-going dispute
Machinery – shows clear intention to have the issue • There is an order of the DOLE where you can request for
administrative intervention to resolve an on-going labor
Notes and comments by Dean Salvador A. Poquiz Page 16 of 17

Transcribed by A.A. Dizon ’15-’16 LABOR RELATIONS REVIEWER

Updates by CRUZ.DE DIOS.RUIZ ’17-’18

 dispute on matters of interpretation of company policies and 4. Similarity of employment status test
collective bargaining - Determine on account of status of employment
• PROVIDED: this on-going dispute is not subject of a notice
of strike or subject to any labor body. It should be filed by ex. Teachers in college and HS should not have separate
way of request to the Sec. of DOLE. appropriate bargaining unit
• This is also a form of arbitration
CORPORATE SPIN-OFF RULE
• ALLOWED
DOLE REGIONAL DIRECTORS AND ASSISTANT • A big company creates small units in order to simplify CB
REGIONAL DIRECTORS AS EX- OFFICIO VOLUNTARY process.
ARBITRATORS • The transformation of the companies was a management
• It is allowed on matters of interpretation of company policies prerogative and business judgement must be governed by
and collective bargaining the policy of good faith.
• Whatever matters involving labor dispute under the
administrative intervention of the DOLE, if the Sec. of Labor STOP LOCK GATE CLAUSE
will not resolve it, the Sec. may refer it to the Reg. Director (Non chargeability clause)
or Assistant Reg. Director of the DOLE – because they are • This is the clause in the CBA where any increase in wages
designated EVA (Ex-officio VA) or benefits in the CBA are exclusive of other benefits that
may later on be decreed by the government, shall also be
CBA IS THE LAW OF THE PLANT granted to the workers
- It is the fundamental charter that governs the relationship of • CBA benefits are exclusive to other benefits decreed later
the ER and the union. on by the government. It cannot be charged in the future.
XPN: Unless the CBA provides for a credibility
• IF CBA has a conclusive arbitration clause yet a notice of clause (that it can be credited against future benefits
strike is filed by the union, union CAN BE SUBJECT OF decreed by the government)
ULP.
o SC: What will be the use of this clause if it will not be
complied with. CBA is the law of the plant. If not
complied with either of the parties will be liable.

Q: If there was incumbent bargaining agent who was

responsible for the CBA, approved by the parties, but later
on, there was a change in the bargaining agent under the
Substitutionary Doctrine. May a new bargaining agent
initiate process where the life of CBA is shortened?
A: Yes. Because the CBA is in nature, a contract in
personam.

• An APPROPRIATE BARGAINING UNIT means the

process of grouping, classifying workers or employees
according to their employment status, qualifications,
salaries, terms and conditions.

4 WAY TEST IN DETERMINING APPROPRIATE CB UNIT

(Factors of determination)
1. Globe Election Doctrine
- The express will or desire of employees test
- Election conducted to determine the appropriate
bargaining unit

2. Community or mutuality of interests test

- There should be a similarity of interest
- Same qualifications, salaries and working conditions
- What is important is they have the same substantial
interest.

ex. Sales agents of beer in L,V.M. Should agents in

Luzon have diff. bargaining unit from Visayas and
Mindanao? – NO. They have same qualifications,
experience and bracket of salaries.

ex. Poultry raising and Cinema – no same interest so 1

interest = 1 bargaining unit

3. Prior collective bargaining history test

- Consider the bargaining history between the bargaining
unit and the ER

Notes and comments by Dean Salvador A. Poquiz Page 17 of 17

Transcribed by A.A. Dizon ’15-’16 LABOR RELATIONS REVIEWER

Updates by CRUZ.DE DIOS.RUIZ ’17-’18