Labor Relations Review TSN 2020

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In 2012, Emmanuel L. Benitez, GSIS Family Bank’s president, sought

LABOR LAW REVIEW opinion from the Governance Commission as to whether GSIS Family
with Fr. Agustin L. Nazareno Bank may be considered as a GOCC or government bank under Republic
Act No. 10149. He also sought clarification from the Governance
Ateneo de Davao University | College of Law Commission on whether it has the authority to enter into a collective
IV-Manresa 2020-2021 bargaining agreement with the GSIS Union and whether its employees
has the right to strike.
LABOR RELATIONS The Governance Commission replied that as a government financial

institution, GSIS Family Bank was unauthorized to enter into a collective
bargaining agreement with its employees “based on the principle that
September 3, 2020 Part 1A by Marion Lawrence Lara the compensation and position classification system is provided for by
law and not subject to private bargaining.” It further clarified that the
Today, we begin with labor relations. right to strike of GSIS Family Bank’s employees was not guaranteed by
the Constitution, as they were government officers and employees.
We begin with the right to self-organization. Let me introduce to you
this case, penned by the most controversial justice of the Supreme GSIS Union’s Contention:
Court, Justice Marvic Leonen. He could be your Bar Examination
Chairman. GSIS Union alleged that Republic Act No. 10149 does not apply to GSIS
Family Bank, as it was a private bank created and established under the
(Father shared his thoughts on the upcoming bar examinations) Corporation Code. It asserted that even if the GSIS owned a majority of
GSIS Family Bank’s outstanding capital stock, the change in ownership
The case is GSIS Family Bank Employees Union vs Secretary Cesar L. of shares did not automatically place the bank under the operation of
Villanueva, GR No. 210773, January 23, 2019, 3 rd Division. This is a Republic Act No. 10149. It also cites the case of PNOC to substantiate
landmark case, even if it is only in division. its claim that GOCCs without original charters, or those incorporated
under the Corporation Code, are subject to the provisions of the Labor
GSIS FAMILY BANK EMPLOYEES UNION v. SEC. CESAR Code.
VILLANUEVA
G.R. No. 210773, January 23, 2019 On January 30, 2014, GSIS Union filed before the Supreme Court a
THIRD DIVISION Petition for Certiorari, asserting that GSIS Family Bank is a private bank;
LEONEN, J. thus, it is not covered by the provisions of Republic Act No. 10149.
Issue: Whether or not GSIS Family Bank is a GOCC. –YES.

Doctrine: “Officers and employees of government-owned or controlled
corporations without original charters are covered by the Labor Code, Held: “Officers and employees of government-owned or controlled
not the Civil Service Law. However, non-chartered government-owned corporations without original charters are covered by the Labor Code,
or controlled corporations are limited by law in negotiating economic not the Civil Service Law. However, non-chartered government-owned
terms with their employees. This is because the law has provided the or controlled corporations are limited by law in negotiating economic
Compensation and Position Classification System, which applies to all terms with their employees. This is because the law has provided the
government-owned or controlled corporations, chartered or non- Compensation and Position Classification System, which applies to all
chartered.” government-owned or controlled corporations, chartered or non-
chartered.”
Facts: On July 22, 1969, Royal Savings Bank was organized and
incorporated as a thrift bank. In 1984, it filed an application with the Workers in Public Sector Also Has Right to Self-Organization. -
Central Bank for the appointment of a conservator. The Central Bank The right to self-organization is not limited to private employees and
denied the same and was instead placed under receivership, so Royal encompasses all workers in both the public and private sectors, as
Savings Bank filed several complaints against the Central Bank for grave shown by the clear declaration in Article IX(B), Section 2(5) that “the
abuse of discretion. To amicably settle the cases, then Central Bank right to self-organization shall not be denied to government employees.”
offered to reopen and rehabilitate Royal Savings Bank if it would drop Article III, Section 8 of the Bill of Rights likewise states, “the right of the
all its complaints and transfer all its shares of stock to Commercial Bank people, including those employed in the public and private sectors, to
of Manila, a wholly-owned subsidiary of the Government Service form unions, associations, or societies for purposes not contrary to law
Insurance System (GSIS). shall not be abridged.”
Not long thereafter, Royal Savings Bank and Commercial Bank of Manila Right of Govt. Employees to Collective Bargaining &
entered into a Memorandum of Agreement to rehabilitate and infuse Negotiation Subject to Limitation. - While the right to self-
capital into Royal Savings Bank. Royal Savings Bank was renamed organization is absolute, the right of government employees to collective
Comsavings Bank. bargaining and negotiation is subject to limitations.
In 1987, the GSIS transferred its holdings from Commercial Bank of The terms and conditions of employment of government
Manila to Boston Bank. Comsavings Bank was not included in the workers are fixed by the legislature; thus, the negotiable matters
transfer. Due to Boston Bank’s acquisition of Commercial Bank of Manila, in the public sector are limited to terms and conditions of employment
the GSIS took over the control and management of Comsavings Bank. that are not fixed by law.
In 1993, Comsavings Bank and the GSIS executed a Memorandum of No Distinction Between Chartered and Non-Chartered. -
Agreement where the latter committed to infuse an additional capital of Republic Act No. 10149 defines a non-chartered government-owned or
P2.5 billion into Comsavings Bank. After the infusion of funds, the GSIS controlled corporation as a government-owned or controlled corporation
effectively owned 99.55% of Comsavings Bank’s outstanding shares of that was organized and is operating under the Corporation Code. It does
stock. not differentiate between chartered and non-chartered government-
owned or controlled corporations; hence, its provisions apply equally to
Sometime in 2001, Comsavings Bank changed its name to GSIS Family both.
Bank.
When it comes to collective bargaining agreements and collective
On June 6, 2011, President Aquino signed into law Republic Act No. negotiation agreements in government-owned or controlled
10149, or the GOCC Governance Act of 2011. The law created the corporations, Executive Order No. 203 unequivocally stated that
Governance Commission for Government-Owned or Controlled while it recognized the right of workers to organize, bargain, and
Corporations. negotiate with their employers, “the Governing Boards of all covered
ADDU LAW LABOR LAW REVIEW with Fr. Agustin L. Nazareno__ 2
government-owned or controlled corporations, whether Chartered or The union argued, “You are a GOCC but you do not have a charter. You
Non-chartered, may not negotiate with their officers and employees the are organized under Corporation Code. So you are private corporation.
economic terms of their collective bargaining agreements.” You should enter into collective bargaining.” In government, there is no
bargaining. They only enter into CAN or Collective Negotiation
Thus, considering the existing law at the time, GSIS Family Bank could Agreement, which does not have anything to do with pay or monetary
not be faulted for refusing to enter into a new collective bargaining benefits. Union argued that since GSIS Family Bank is a private
agreement with GSIS Union. corporation, it must enter into a bargaining agreement with them
respecting rates of pay, leaves, and other economic benefits.
Who is considered a government employee?
What is the defense of GSIS Family Bank?
Those who are employed by the National Government and any of its
subdivisions, agencies, instrumentalities, including government-owned Their defense is RA No 10149. What does it provide? All GOCC whether
or controlled corporation (GOCC) with original charter. with original charter or not, they are covered by the standardization of
salaries and benefits in all GOCC’s. they do not have to bargain on
What is original charter? monetary aspects of the terms and conditions of work, which are
mandatory subjects of bargaining. Such terms and conditions are
There is a law which creates the corporation. The law is itself the articles already fixed by law – RA No. 10149.
of incorporation and the by-laws of the corporation. That is a GOCC with
original charter. Is that correct?
In the case of Lumanta vs NLRC, GOCCs which no longer had an original Marvic Leonen says YES. GSIS Family Bank cannot be faulted for not
charter, they are not government. The employees therein are not bargaining because it has no duty to bargain the financial aspects of
covered by the Civil Service Law. They are covered by the Labor Code. employer-employee relationship because these are already fixed by law
The forum for their disputes with respect to terms and conditions of – RA No. 10149.
work is not the Civil Service Commission, but the different tribunals –
NLRC, NCMB, Voluntary Arbitrator, Regional Director of DOLE, etc. Question: Is that law constitutional? Why does a law suddenly
Those are the venues on Labor Code. fix the terms and conditions of a private contract such as
employer-employee contract when it is supposed to be set by
The crucial categories are: the agreement of the parties?
1. GOCC with original charter In the government, that can be done. It can be fixed by law because
there is no contract, no employer-employee relationship. It is clearly
2. GOCC without a charter founded on law. But when you have a corporation that is not
government by definition in the Constitution, how can you have a law
Remember, the Charter Test, in the Camporedondo vs NLRC case, is the
fixing the essence of an employer-employee agreement? Is it
test to determine whether or not they are government or not. The
constitutional? What is the answer of Marvic Leonen?
charter test, according to the latest case of Philippine Society for the
Prevention of Cruelty to Animals (PSPCA) vs COA, is prospective in September 3, 2020 Part 1B by April John Latorza
nature, not retrospective. Charter test is only applicable starting 1987
because it is the time when this phrase occurred in the Constitution. It He says the constitutionality of RA 10149 is an issue in this case and
does not apply before that. SPCA was created in 1903 or 1906 by an cannot be at issue. Therefore, it is presumed regular. Why is it not at
Act, law passed by the US Congress. Even if it has an original charter, it issue in this case when the union brought it up before the Supreme
is not government owned. Even if it passed the Charter Test, said test Court? It is not at issue because if you go back to your Constitutional
does not apply retrospectively. Law, when can a law be declared unconstitutional? What are the
requisites? The issue of the constitutionality of the law must be brought
Here comes, GSIS case. GSIS lent money to Royal Savings Bank. Said
later or earliest possible time. It must be raised from the start in an
bank fell into bad times. Royal Savings Bank filed a petition for
actual controversy which is ripe for adjudication. That might be a law
bankruptcy under FRIA. They asked for financial rehabilitation. GSIS
not ripe for adjudication. Why? Because it has not yet been put into
took over Royal Savings Bank. It became a knight in shining armor
effect. So, when is it ripe for adjudication? When there is a party that
saving Royal Savings Bank.
has standing? Remember, what is standing? That is stand to suffer loss
How did GSIS save Royal Savings Bank? or damage because of the enforcement of the law. That you suffer an
injury or there is an imminent probability that you will suffer loss or
It did so by infusing new money or capital amounting to Php 2.5 billion. injury because of the implementation and enforcement of the right for
The court approved the financial rehabilitation of Royal Savings Bank. adjudication. You must raise at the very first instant in a case that is
What was the effect of the infusion of such amount? Royal Savings Bank actual controversy not a nebulus controversy.
became 99% owned by GSIS. 99% of its outstanding capital stock is
owned by GSIS. That is why the name Royal Savings Bank became GSIS What is a nebulus controversy? Association of travel agents and
Family Bank. Royal Savings Bank was a corporation organized under the manpower and placement association. They file an action attacking the
Corporation Code and has a banking license with the approval from the order of the Secretary of Labor to stop the employment to Iraq and
Central Bank. It has no original charter but it is owned and controlled by Afghanistan because the order is unconstitutional for violating the right
GSIS. Now, Royal Savings Bank has a union. Its union are organized. to travel of OFW. The SC shut it down with one line, you do not have
They have a CBA with the management of Royal Savings Bank. Now that standing. Why? You do not suffer the loss, you send it for abroad. Is it
it is owned by the GSIS, they submit bargaining proposals to GSIS. your right personally? Your right is to sell tickets, to look for placement
of employees but you are not the OFW who is targeted by the order.
What did GSIS do? You do not have standing. You cannot claim cause of action. And then,
Leonen says to declare the law unconstitutional, you must raise it for
GSIS does the same thing as what happened in Kiok Loy vs NLRC, the first time, you must have standing. You cannot resolve the basic
involving Swedish Ice Cream Plant. They had a deadlock. GSIS was controversy of the case without answering the question as to whether
given a bargaining proposal but GSIS did not do anything. So, what does or not the law in question RA 10149 is constitutional. You cannot escape
the union do. The union filed unfair labor practice against GSIS Family the constitutionality.
Bank for refusal to bargain.
In other words, the SC says the constitutionality of the law, regulation
or implementing rule in question must be the very lis mota. Leonen says,
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in the absence of all that, what principle takes over? The principle that governmental or proprietary function, which is directly chartered by a
the regularity of the law is presumed by its mere enactment because RA special law or if organized under the general corporation law is owned
10149 has been enacted. or controlled by the government directly, or indirectly through a parent
corporation or subsidiary corporation, to the extent of at least a majority
There is now a department that enforces the department duly created of its outstanding capital stock or of its outstanding voting capital stock.
by Pnoy, headed by Sec. Villanueva. Leonen says employees of GOCC
without original charter, the funds are covered by COA. That is the ruling In the case at bar, Corregidor Foundation Inc was organized as a non-
of Leonen in Oriondo et. al, v. COA, that is an en banc ruling June 4, stock corporation under the Corporation Code. It was issued a certificate
2019. Leonen says when it is a GOCC without original charter, the funds of registration by the SEC and according to its Articles of Incorporation,
are covered by COA. The employees are not covered by civil service, it was organized and operated in the public interest. Also, it was
they are covered by the Labor Code. They can go to the Labor Arbiter. organized primarily to maintain and preserve the war relics in Corregidor
That is despite of ruling in GSIS Family Bank v. Villanueva when he says and develop the area’s potential as an international and local tourist
the management in the GOCC without original charter does not have to destination. Also, all of its incorporators were government officials, and
bargain with the employees union if it is covered by RA 10149. FASAP requires that the members of its Board of Trustees be all government
v. Philippine Airline, en banc decision, the Lucio Tan case where CJ officials. The government also has substantial participation in the
Bersamin wrote the decision and Leonen wrote a dissenting opinion. selection of Corregidor foundation Inc.’s governing board. The
government controls said foundation making it a government-owned or
ORIONDO ET. AL v. COA controlled corporation.
G.R. No. 211293, June 04, 2019
Further, it is immaterial whether a corporation is private or public for
Doctrine: A corporation whether with or without an original charter, is purposes of exercising the audit jurisdiction of the COA. So long as the
under the audit jurisdiction of COA so long as the Government owns or government owns or controls the corporation, as in this case, the COA
has controlling interest in it. may audit corporation’s accounts. Indeed, the MOA executed by the
Corregidor foundation and PTA indubitably show that said foundation is
Facts: Philippine Tourism Authority (PTA) Board of Directors adopted a funded by the government through the PTA and hence, Corregidor
Resolution approving the creation of a foundation for the development Foundation is required to submit its budget for approval of the PTA and
of Corregidor. The Corregidor Foundation INC. was incorporated under it even voluntarily submitted itself to the audit jurisdiction of the COA.
Securities and Exchange Commission.
Lastly, the Corregidor Foundation Inc may determine voluntarily and
PTA executed a Memorandum of Agreement (MOA) with the said solely the successors of its members in accordance with its own by-laws,
foundation and agreed to release its operating funds based on its budget this does not change the public character of its functions and the control
for its approval and said foundation will also submit a quarterly report the government has over it. The promotion and development of tourism
on the receipts and disbursement of PTA funds and shall deposit all the is a public function and the members of the foundation must be
revenues collected in a distinct and separate account in the name of government officials who shall hold their membership by reason of their
Corregidor, and the disposition of the funds at the sole discretion of the office.
PTA. Also as additional stipulations, the disbursement of PTA-funds by
Corregidor shall be subject of Internal Auditor of PTA and Commission Hence, Corregidor Foundation Inc. is a government-owned or controlled
on Audit. corporation. Thus it is under the audit jurisdiction of the Commission on
Audit.
Thereafter the audit team noted that the petitioners, former officers of
PTA concurrently rendering service to the foundation received gifts and All told, Corregidor Foundation, Inc. is a government-owned or
honoraria which is contrary to Department of Budget Management controlled corporation. It is subject to Department of Budget and
Circular No. 2003-5. Thus, the COA issued a notice of disallowance to Management Circular No. 2003-5 limiting the payment of honoraria to
the said petitioners. The petitioners contended that Corregidor certain personnel of the government. Furthermore, petitioners, being
foundation is a private corporation created by the Corporation code, thus employees of the Philippine Tourism Authority, are public officers
cannot be audited by the COA. prohibited from receiving additional, double or indirect compensation as
per Article IX-B, Section 8 of the Constitution. The Commission on Audit
The Adjudication Settlement Board held that the foundation is a did not gravely abuse its discretion in disallowing the payment of
government-owned controlled corporation (GOCC) and under the audit honoraria and cash gift to petitioners.
powers of the COA, and the same is a non-stock corporation which
receives funds from the government through the PTA. The Commission September 3, 2020 Part 2A by Gian Antonio Maligad
on Audit sustained the decision of the settlement Board, being a
government owned corporation as the incorporators of the foundation
are all government officials and its budget is substantially subsidized by RIGHT TO SELF ORGANIZATION
the Government.
Right to Self-Organization — This is a statutory right. It is not a
However, the petitioners insist that the Corregidor Foundation is not a
Constitutional right.
government-owned or controlled corporation because the same is
neither organized as a stock corporation nor created by a special law. It
If it was instead a constitutional right, then it would cover everyone.
is a private corporation which assets are allegedly exclusive property,
You will not be able to deny Government employees from the right of
not government owned.
self-organization. Although, verbally in the Constitution there is a
provision, which provides that the right to self-organization shall not be
Issue: Whether or not Corregidor Foundation Inc is a government
denied from government employees.
owned or controlled Corporation under the audit jurisdiction of the
Commission on Audit.’
But, the latest pronouncement under the case of GSIS Family Bank
vs. Cesar Villanueva (January 23, 2019), provides that:
Held: Yes, The Supreme Court held that Corregidor Foundation Inc is a
government owned or controlled corporation under the audit jurisdiction
“Even employees in the private sector, as long as such is a
of the Commission on Audit.
Government controlled and owned Corporation, and with all the more
reason that employers in Government controlled and owned
Under Presidential Decree No. 2029, government-owned or controlled
Corporation with original charters cannot bargain.”
corporation is a stock or a non-stock corporation, whether performing
So, they cannot exercise the right to self-organization. It despite what There is no contract, but law.
the Constitution says, the right to self-organization shall not be
denied from Government employees. Reiteration by Father:
Comment of Father: This is wrong English. Article IX-B; Section 2: Article XI; Section 1. Public office is a public trust. Public officers and
employees must, at all times, be accountable to the people, serve them
1987 Constitution: with utmost responsibility, integrity, loyalty, and efficiency; act with
Article IX-B; Section 2 patriotism and justice, and lead modest lives.
(5) The right to self-organization shall not be denied to The Constitution doesn’t say that public office is a public right. Public
government employees. officers and employees must enter into a contract with the
government or they can seek the betterment for themselves and they
Take out the word “to”. That is a wrong proposition. Hence: “shall not can ask for better conditions of work and higher salary—by
be denied government employees” collective bargaining.
Q: Why is this provision [Article IX-B; Section 2(5)] It says: “You must be accountable to the people”
constitutionally wrong?
Q: What do you account?
Answer: It is incorrect because of the multiple other Constitutional
provisions that deny the right to self-organization [from Answer: You account for your duties! If you are in-charge of Philhealth
government employees]. and the administration of Public health.
Q: What are those provisions in the Constitution? What is your duty? You answer to the people and if there is
irregularity, then Congress can investigate you. You can be charged,
Answer: because you are answerable to the people.
1987 Constitution; Article XI Note: That is why the right to self-organization is not a
Constitutional right. It is a statutory right.
Section 1. Public office is a public trust. Public officers and
employees must, at all times, be accountable to the people, serve Q: What statute gives such right?
them with utmost responsibility, integrity, loyalty, and efficiency;
act with patriotism and justice, and lead modest lives. Answer: The Labor Code. That is why the Labor Code, excludes
following from the right to collective bargaining:
Discussion: The basis of engagement in the government, they a.) Government employees
call it employment but it is actually engagement with the government, b.) Managerial employees;
is not contract. It is because it is the law entrusting you certain duties, c.) Confidential Employees (by jurisprudence);
which you are answerable to the people—that is why it is a public trust.
The right to self-organization is not only statutory, but it is an:
Q: How do you get engaged with government? a) Individual right;
b) It is a personal right or private right;
Answer: It is by election or appointment. It is not by entering into a c) It is not an assignable right. It is a non-transferrable
contract. right
d) It is a non-negotiable right;
If government engagement was through entering into a contract and e) It is not subject to compulsion
there is a contract, then there could be a collective bargaining
agreement. If you are a member of the Union, and when the union enters into
collective bargaining—you cannot say that “I have something to get
But since there is no contract at all, then you cannot organize in order from that collective bargaining, but I am going on leave and therefore I
to enter into one contract, because there is no contract to begin assign my rights to my wife. In the mean time, she can exercise the
with in public service. There is only public trust. right to self-organization, attend the meetings of the union, and vote on
concerns of the union etc.”
EXECUTIVE ORDER NO. 292  Father compared such to the membership rights in a country
club. It is an ownership and a bundle of rights—jus possidendi,
SEC. 3. Terms and Conditions of Employment. — The terms jus utendi, jus fruendi. Such rights can be assigned to
and conditions of employment of all government employees, somebody else.
including those in government–owned or controlled corporations with
original charters, shall be fixed by law. The terms and conditions You cannot do that with the right to self-organization because it is
of employment which are not fixed by law may be the subject of strictly an individual right that is non-transferrable.
negotiations of employment which are not fixed by law may be the
subject of negotiation between recognized employees’ organizations When you leave the union and somebody else comes and takes your
and appropriate government authorities. place, he is not exercising the same right. He is exercising his
own right to self-organization by virtue of his being in an
Transcriber’s Note: I wasn’t able to locate a constitutional provision Employer-Employee relationship with the employer and by
that corresponded with the discussion of Father. But, the above being a member of his own right with that union. It is not
provisions is the closest that I found. exercising your own right to self-organization.
Discussion: The terms and the conditions of employment of all Q: Why is the right to self-organization not subject to
government employees, including employees of Government owned and compulsion?
controlled corporations shall be governed by the Civil Service Law, Rules,
and Regulations.
Answer: It is because the right to self-organization is not only the right exercise his chosen religion; that the constitutional right to the free
to form join and assist a labor organization of one’s choice, it is also the exercise of one's religion has primacy and preference over union
right not to join any union—that is the beauty of self-organization. security measures which are merely contractual; that said Act does
not violate the constitutional provision of equal protection, for the
This was made clear in the celebrated case of Victor Benjamin classification of workers under the Act depending on their religious
Victoriano vs. Elizalde Rope Factory Inc. (G.R. No. L-25246 tenets is based on substantial distinction, is germane to the purpose
(1974)) penned by Justice Enrique Fernando and recently of the law, and applies to all the members of a given class; that said
reiterated in the case of PAFLU VS. SEC. OF LABOR (GR L-2228), Act, finally, does not violate the social justice policy of the
Constitution, for said Act was enacted precisely to equalize
[Transcriber’s Note: The recording or sound got cut off for some employment opportunities for all citizens in the midst of the
reason. Please note that moving forward the recording becomes choppy diversities of their religious beliefs."
and the voice of Father fades in and out. ]
Lifted from 2019 TSN:
BENJAMIN VICTORIANO v. ELIZALDE ROPE FACTORY INC.
G.R. No. L-25246, 1974 PAFLU v. SEC. OF LABOR
G.R. No. L-2228
Facts: Benjamin Victoriano (hereinafter referred to as Appellee), a
member of the religious sect known as the "Iglesia ni Cristo", had Facts: Petitioners pray for writs of certiorari and prohibition:
been in the employ of the Elizalde Rope Factory, Inc. (hereinafter
referred to as Company) since 1958. As such employee, he was a (1) to restrain respondents, the Secretary of Labor, the Director of
member of the Elizalde Rope Workers' Union (hereinafter referred to Labor Relations and the Registrar of Labor Organizations, from
as Union) which had with the Company a collective bargaining enforcing an order of cancellation of the registration certificate of the
agreement containing a closed shop provision which reads as follows: Social Security System Employees Association (SSSEA), which is
affiliated to the Philippine Association of Free Labor Unions (PAFLU);
Membership in the Union shall be required as a condition of
employment for all permanent employees workers covered by this
(2) to annul all proceedings in connection with said cancellation; and
Agreement.
Under Section 4(a), paragraph 4, of Republic Act No. 875, prior to its (3) to prohibit respondents from enforcing Section 23 of Republic Act
amendment by Republic Act No. 3350, the employer was not No. 875.
precluded "from making an agreement with a labor organization to
require as a condition of employment membership therein, if such It appears that on September 25, 1963, the Registration of Labor
labor organization is the representative of the employees." On June Organizations (Registrar) issued a notice of hearing, on October 17,
18, 1961, however, Republic Act No. 3350 was enacted, introducing 1963, of the matter of cancellation of the registration of the SSSEA,
an amendment to — paragraph (4) subsection (a) of section 4 of because of:
Republic Act No. 875, as follows: ... "but such agreement shall not
cover members of any religious sects which prohibit affiliation of their 1. Failure to furnish the Bureau of Labor Relations with copies of the
members in any such labor organization". reports on the finances of that union duly verified by affidavits which
its treasurer or treasurers rendered to said union and its members
Being a member of a religious sect that prohibits the affiliation of its covering the periods from September 24, 1960 to September 23,
members with any labor organization, Appellee presented his 1961and September 24, 1961 to September 23, 1962, inclusive,
resignation to appellant Union in 1962, and when no action was taken within sixty days of the 2 respective latter dates, which are the end
thereon, he reiterated his resignation on September 3, 1974. of its fiscal year; and
Thereupon, the Union wrote a formal letter to the Company asking
the latter to separate Appellee from the service in view of the fact
2. Failure to submit to (the Registrar) the names, postal addresses
that he was resigning from the Union as a member. The management
and non-subversive affidavits of the officers of that union within sixty
of the Company in turn notified Appellee and his counsel that unless
days of their election in October (1st Sunday), 1961 and 1963, in
the Appellee could achieve a satisfactory arrangement with the
conformity with Article IV (1) of its constitution and by-laws.
Union, the Company would be constrained to dismiss him from the
service. This prompted Appellee to file an action for injunction,
docketed as Civil Case No. 58894 in the Court of First Instance of in violation of Section 23 of Republic Act No. 875.
Manila to enjoin the Company and the Union from dismissing
Appellee. (Eventually) on October 23, 1963, the Registrar rendered a decision
cancelling the SSSEA's Registration Certificate No. 1-IP169, issued on
In its answer, the Union invoked the "union security clause" of the September 30, 1960. Soon later, or on October 28, 1963, Alfredo
collective bargaining agreement and assailed the constitutionality of Fajardo, president of the SSSEA moved for a reconsideration of said
Republic Act No. 3350; decision. Before resolution of said motion for reconsideration, or on
December 4, 1963, the Registrar issued an order declaring that the
Held: Appellee, assailing appellant's arguments, contended that SSSEA had "failed to submit the following requirements to wit:
Republic Act No. 3350 does not violate the right to form lawful
associations, for the right to join associations includes the right not 1. Non-subversive affidavits of Messrs. Teodoro Sison, Alfonso
to join or to resign from a labor organization, if one's conscience does Atienza, Rodolfo Zalameda, Raymundo Sabino and Napoleon
not allow his membership therein, and the Act has given substance Pefianco who were elected along with others on January 30, 1962.
to such right by prohibiting the compulsion of workers to join labor
organizations; that said Act does not impair the obligation of
2. Names, postal addresses and non-subversive affidavits of all the
contracts for said law formed part of, and was incorporated into, the
officers who were supposedly elected on October (1st Sunday), of its
terms of the closed shop agreement; that the Act does not violate
constitution and by-laws.
the establishment of religion clause or separation of Church and
State, for Congress, in enacting said law, merely accommodated the
religious needs of those workers whose religion prohibits its members and granting the SSSEA 15 days from notice to comply with said
from joining labor unions, and balanced the collective rights of requirements, as well as meanwhile holding in abeyance the
organized labor with the constitutional right of an individual to freely
resolution of its motion for reconsideration. without said registration. The latter is merely a condition sine qua
non for the acquisition of legal personality by labor organizations,
Pending such resolution, or on December 16, the PAFLU, the SSSEA, associations or unions and the possession of the "rights and
Alfredo Fajardo "and all the officers and members" of the SSSEA privileges granted by law to legitimate labor organizations". The
commenced the present action, for the purpose stated (at the Constitution does not guarantee these rights and privileges, much
beginning of this decision), upon the ground that Section 23 of less said personality, which are mere statutory creations, for the
Republic Act No. 875 violates their freedom of assembly and possession and exercise of which registration is required to protect
association, and is inconsistent with the Universal Declaration of both labor and the public against abuses, fraud, or impostors who
Human Rights. pose as organizers, although not truly accredited agents of the union
they purport to represent. Such requirement is a valid exercise of the
police power, because the activities in which labor organizations,
ISSUE: Whether or not Section 23 of Republic Act No. 875 violates
associations and union of workers are engaged affect public interest,
the petitioners’ freedom of assembly and association.
which should be protected. Furthermore, the obligation to submit
financial statements, as a condition for the non-cancellation of a
RULING: NO. Pertinent portions of Section 23 of RA 875 provide: certificate of registration, is a reasonable regulation for the benefit of
the members of the organization, considering that the same
Section 23. Registration of Labor Organizations. – xxx generally solicits funds or membership, as well as oftentimes collects,
on behalf of its members, huge amounts of money due to them or to
(b) Any labor organization, association or union of workers duly the organization.
organized for the material, intellectual and moral well-being of its
members shall acquire legal personality and be entitled to all the
rights and privileges granted by law to legitimate labor organizations 1987 Constitution:
within thirty days of filing with the office of the Secretary of Labor
notice of its due organization and existence and the following Section 8. The right of the people, including those employed in
documents, together with the amount of five pesos as registration the public and private sectors, to form unions, associations, or
fee, except as provided in paragraph "d" of this section: societies for purposes not contrary to law shall not be abridged.
(1) A copy of the constitution and by-laws of the organization Q: Is that not the right to self-organization?
together with a list of all officers of the association, their
Answer: [Recording is cut off]…If confined, subtracted from, added to,
addresses and the address of the principal office of the organization; but must remain according to its original constitutional set…[Recording
is cut off]…It is not the right of self-organization is Section 8.
(2) A sworn statement of all officers of the said organization, Employees employed in the private and public sectors to form unions
association or union to the effect that they are not members of the and associations—that is the right of association or the freedom of
Communist Party and that they are not members of any organizations association.
which teaches the overthrow of the Government by force or
[Transcriber’s Note: In other words, Article 3; Section 8 of the 1987
by any illegal or unconstitutional method; and (3) If the applicant Constitution does not deal with the right of self-organization, but rather
organization has been in existence it deals with the right of association or the freedom of association.]
for one or more years, a copy of its last annual financial report. xxx The right of self-organization is not a species of the freedom of
association—the two concepts are different.
(d) The registration and permit of a legitimate labor organization shall  The right of self-organization flows from social justice. The
be cancelled by the Department of Labor, if the Department has social justice thrust of the Constitution;
reason to believe that the labor organization no longer meets one or  The right of self-organization is not born out of the free will
more of the requirements of paragraph (b) above; or fails to file with of the employees
the Department of Labor either its financial report within sixty days
of the end of its fiscal year or the names of its new officers along Q: Who said that…[Recording is cut off]…vs. Secretary of Labor.
with their non-subversive affidavits as outlined in paragraph (b)
above within sixty days of their election; however, the Department Discussion: In that case, the Supreme Court under the pen of Justice
of Labor shall not order the cancellation of the registration and permit Roberto Concepcion.
without due notice and hearing, as provided under paragraph (c)
above, and the affected labor organization shall have the same right In the said case, the Petitioners contend that their freedom of
of appeal to the courts as previously provided. association is violated because the Department of Labor cancelled our
registration, because they could not hand in the documentary
requirements. Hence, the Department of Labor cancelled the registration
The Department of Labor shall automatically cancel or refuse
of the union.
registration and permit to the labor organization or the unit of a labor
organization finally declared under sections five and six of this Act to
The Supreme Court held: The freedom of association is still intact,
be a company union as defined by this Act. The restoration or
you can still associate.
granting of registration and permit shall take place only after the
labor organization petitions the Court and the Court declares (1) that
If that is what registration does to you, when you register a group, then
full remedial action has been taken and (2) sufficient time has
you give it a personality distinct and separate from the individual
elapsed to counteract the unfair labor practice which resulted in the
personalities of the group. So, even if you are not meeting the
company union status.
personality of the group is not lost and every time you meet it is not a
brand new group, but rather it is the constituting of that same
The theory to the effect that Section 23 of Republic Act No. 875 personality—there is continuity. The things that…[Recording is cut off]…
unduly curtails the freedom of assembly and association guaranteed
in the Bill of Rights is devoid of factual basis. The registration The Supreme Court reversed the previous decision and held that every
prescribed in paragraph (b) of said section 1 is not a limitation to the meeting is considered as a new group.
right of assembly or association, which may be exercised with or
Q: What is the meaning of separate and distinct personality? Employees Organization—This refers to …[Recording is cut
off]…they are formed …[Recording is cut off]…
Answer: Roberto Concepcion made it clear. Article 3; Section 8 of the
1987 Constitution does not pertain to the right of self-organization, but Collective Negotiation Agreement refers to the peripheral terms of
the freedom of association. the organization.
Essence of freedom of Association—It is the …[Recording is cut Q: What are these peripheral terms?
off]… That is freedom of association.
Answer: …[Recording is cut off]…but not rates of pay or hours of work
Example: Let us all meet as a group in order to form a revolutionary etc. as determined by Civil Service Law. That is why the term that you
government. come up is Collective Negotiation Agreement. It has nothing to do with
money. If it did, then the Commission of Audit (COA) will step in and
Q: Is that exercising your freedom of association? …[Recording is cut off]…because the only way that you can have a share
in the money is when there is a law covering it.
Answer: Freedom of Association is coming together in order
to…[Recording is cut off]…contrary to law. That is why the first thing Q: What is the law …[Recording is cut off]…?
dictators do is to prohibit the gathering or the association or meeting of
five (5) or more people, because these people might cause for the The Government is a juridical person. It has no hands no feet no mouth.
downfall of the dictator. How does it act? It acts by passing law. It enable the government to
act. Once there is a law, the following …[Recording is cut off]…
Q: Is that contrary to law?
In the budget for the year 2021, there is delineation for items of
Answer: If the dictator is really bad, then it is a …[Recording is cut expenditure. The same law which gives the Executive the power to
off]…basis of the Constitution that all power resides in the people it is spend money also limits such power.
exercised by the people.
LIFTED FROM 2018 TSN 1ST EXAM
This is the concept of the French Revolution, that no people shall be This a supplement for the better understanding of the topic.
governed without their consent. That is the first thing that broke down
the divine right of kings. Article 246. Non-abridgment of right to self-organization. It shall be
unlawful for any person to restrain, coerce, discriminate against or
Q: What gave legitimacy to the kings? unduly interfere with employees and workers in their exercise of the
right to self-organization. Such right shall include the right to
Answer: The theological reasoning of the Catholic Church, form, join, or assist labor organizations for the purpose of
which…[Recording is cut off]…can be traced all the way from God. So, collective bargaining through representatives of their own
if you go against the King, then you go against God. That was how Kings choosing and to engage in lawful concerted activities for the
were legitimized. same purpose for their mutual aid and protection, subject to the
provisions of Article 264 of this Code.
The old structures in the Middle Ages, which allowed the consolidation
of power and order, gave some semblance and order to society. It is
EFFECTS:
because there are marauders who raided towns and took everything
that they wanted.
1. If the right to self-organization is PERSONAL, then you can say
that the union only exercises SECONDARILY the right to self-
Power was the source of right. Hence, might is right. In the middle of
organization.
that is the King, and so is his son who shall also be the King. The Kings
comes from God.
2. You cannot say that the interest of the union and the interest of
the individual worker are identical. They are NOT IDENTICAL.
In present times, such concept does not stand to reason, because we
have been …[Recording is cut off]…No society can be governed except
If you will remember in the celebrated case of VICTORIANO vs.
upon the consent of those governed.
ELIZALDE ROPE WORKERS' UNION (G.R. No. L-25246), Chief
Justice Enrique Fernando identified at least three quarters from
So those leaders became very nervous of their authority.
which oppression will be visited upon a worker. He said a worker has to
be protected from at least three quarters. What are those three sources
Q: What do they do?
of oppression that may visit an individual worker?
Answer: They prohibit associations. There shall be no meetings of five
a) THE EMPLOYER OR MANAGEMENT. That is the traditional
(5) or more is allowed. That is General Order No. 2 issued by the Great
source of oppression of a worker. The law is there to protect
Ilocano Ferdinand E. Marcos when he declared Martial Law in 1972. He
the worker from oppression coming from his own employer.
controlled the society by restricting the gathering of people of five (5)
b) THE GOVERNMENT. The government is powerful and it is
or more.
not inconceivable that the government oppresses the solitary
single worker.
Now our checkpoints are justified by reason of public health and safety,
c) THE UNION. The worker may be oppressed by his union.
but at the time of Marcos meetings were deemed as public uprising and
The union, believe it or not, can be also the source of
were deemed as lawlessness.
oppression over the worker.
Marcos was lawless, he declared Martial Law. That is no longer a social
contract between the governed and the governor. So when you say protection to labor, sometimes that means protection
for the labor union or the labor organization of the worker. But its
deepest and most profound sense is protection for the individual worker.
In the Labor Code, they talk about labor organizations, workers
organizations, and Executive Order No. 180, they talk about Protection to labor is not exactly a monolithic concePart There is first
organization of government employees. and foremost protection over the individual worker and that is
paramount that is higher than protection to global labor. To labor as a
union to labor as a collective.
Chief Justice Enrique Fernando said sometimes the union which is because at that time failure to submit your annual audited financial
traditionally the haven of refuge of the worker of which the worker can statements was considered a ground for cancellation of registration.
have the right to expect protection, solace, and encouragement, can be
sometimes be the organization that actually oppresses him. And so the September 3, 2020 Part 2B by Ara Princess Olamit
law between labor and small labor, the law will always protect the
worker. Continuation of Father’s discussion on Executive Power
That is why one of the principles that has been laid down in decided It also limits, conscribes and defines how exactly he spends it following
cases when you have a UNION SECURITY CLAUSE in the CBA. CBA the items on expenditure of the General Appropriations Act (GAA). That
is an employment contract and employment contracts supposed to be is why the President is all Executive.
interpreted in favor of labor or in cases of doubt. What happens when
there is doubt? And the complainant is a single solitary worker vis-a-vis What does he execute? THE LAW. He executes the LAW. Congress
his union because the union can expel its member that has been disloyal enacts the law, the Executive executes the law. He does the spending
to him. And then when it expels it and the union has union security or most of it except what in the GAA is dedicated to the other branches.
clause with the management, then the union can go to the management
and say since it is a condition that the worker continue to be a member 1. If its with the Supreme Court, then it is the Chief Justice who without
to the union so that he can continue to be employed and he is no longer any controls from the Executive, he has the prerogative to spend what
a member of the union because he was expelled therefore we demand is dedicated for the Judiciary.
that he be terminated.
2. Senate, it has its own share that is for the Senate President to
When there is a doubt as to the application of a union security clause, disburse and Congress its for the Speaker, the amount that is dedicated
the SC has said that it is interpreted NOT IN FAVOR OF THE LABOR for the House of Representatives that is for the Speaker, autonomously,
UNION. It is interpreted IN FAVOR OF THE ORDINARY WORKER. without any control, except the control of the COA. That’s why the COA
Between big labor and small labor, the law is in favor of small labor. is constitutional.
That’s why I say that their interests are not exactly identical. You have
to be a little bit more differentiated in your understanding of the so COA operates under two procedures (He only discussed one procedure):
called PROTECTION TO LABOR CLAUSE.
1. Pre-disbursement audit
But labor has so much protection especially with the amendment of RA
9481, the Jinggoy Estrada amendment of the Labor Code. It checks where is this in the appropriation, if it is there, then it can be
spent. If it is not, then we disallow. If it has already been spent and
NOT A CONSTITUTIONAL RIGHT. The right to self-organization is there is no COA issue(?), then the COA will recall the expenditure. They
the right of the people including those in the public and private sectors will go to the one who released it and make it his accountability. Once
to form unions and associations for purposes not contrary to law shall he retires and if he has an unaccountable, then it will be taken from your
not be abridged. That is Sec. 8 of Article 3 of the Constitution. retirement benefits. If it cannot be taken from your retirement benefits,
then you will face the court and answer. Because that is called
Section 8. The right of the people, including those employed in the MALVERSATION.
public and private sectors, to form unions, associations, or societies
for purposes not contrary to law shall not be abridged. Many expenditures not in accordance with the GAA is presumed to be
conversion for your own benefit. In religious term, conversion is very
Has that make the right to self-organization a constitutional good no? But in criminal law, conversion is reprehensible. Public monies
right? That was answered by the SC in the celebrated case of UNITED for a public purpose you made it for a personal use. In PhilHealth, you
PEPSI-COLA SUPERVISORY UNION (UPSU) vs. LAGUESMA bought a yacht, instead of buying paracetamol for the different barangay
(G.R. No. 122226). clinics. You have converted public funds into your own private use.
That is the recent interpretation of the SC. Ponente of the decision is

Justice Vicente Mendoza. He says the right to self-organization can
RIGHT TO WORK
legitimately exclude managerial employees and confidential employees
because when our present architects of our present Constitution, they What is the opposite of the RIGHT TO SELF-ORGANIZATION?
did not have in mind the managers and confidential employees because
that was already well-established jurisprudence and in law that they will The opposite of it is the RIGHT TO WORK LAWS OR THE RIGHT TO
be placed in a conflict of interest situation. Naturally they can be WORK PRINCIPLE.
excluded. In other words, it is not by a whimsical discrimination on the
part of the law to exclude them. They and their role and position which That is borne out in the Southern part of the United States: Florida,
renders them unqualified to exercise to right to self-organization. So it Louisiana, Texas, New Mexico, all these different Southern states.
is not discriminatory.
When a group of workers that compose a bargaining unit elect for
That’s the way Vicente Mendoza explained it. The Bill of Rights (Article representation and they elect a union to be their exclusive bargaining
3) has been placed in the Constitution precisely to remove it from agent. Those who did not vote for the union must tow the line, they are
minorities and majorities of Congress. Congress cannot detract from included in the one collective bargaining agreement that will be arrived
what the Bill of Rights says as a protection from the heavy hand of the at after bargaining. All individual contracts of labor, either there are as
State. many as there are employees or workers are ALL CANCELLED. Only one
COLLECTIVE BARGAINING AGREEMENT shall govern.
Now, with these enshrined in Section 8 of Article 3, has the legislators
(???) away the right to self-organization? Mendoza says no because they But in the Right to Work States, they have a law that states:
cannot just exercise. Their position renders it impossible for them to
exercise. So the law just recognizes the impossibility. It is not by way “Those who do not wish to be represented are not forced to contribute
of discriminatory or undue classification. to the union. There is no agency fees. They can enter into a separate
agreement with management. They are free to pursue and negotiate
But the old case of PAFLU VS. SEC. OF LABOR (GR L-2228), the their own terms and conditions of work. ”
explanation of CJ Roberto Concepcion is more to the point. PAFLU,
labor federation was strict of its registration by the Secretary of Labor
So, what happens? In the end, NO UNION SURVIVED. Because there is concluding otherwise, and stare decisis cannot support it. Abood is
this NO BLANKET POLICY of one collective bargaining agreement. therefore overruled. Pp. 7–47.
Can you imagine that ruling in the case of Janus vs AFSCME where one
(a) Abood’s holding is inconsistent with standard First Amendment
who was not a member of the union but within the bargaining unit he
principles. Pp. 7–18.
complained and he said: we are collected union dues and the union dues
go to this particular union. It’s affiliated with the American Federation of
Labor Conference of International Organizations (CIA) and they (1) Forcing free and independent individuals to endorse ideas they find
contribute heavily to the Democratic Party. Because the Democratic objectionable raises serious First Amendment concerns. E.g., West
Party aligns itself with the labor movement. The Democratic Party Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 633. That includes
supports FREEDOM OF CHOICE on the part of women: whether or not compelling a person to subsidize the speech of other private
with full term to their pregnancy or to undergo abortion. speakers. E.g., Knox v. Service Employees, 567 U. S. 298, 309.
In Knox and Harris v. Quinn, 573 U. S. ___, the Court applied an
This guy says, I do not want my union dues to be contributing to the “exacting” scrutiny standard in judging the constitutionality of agency
enlargement and the acceptance of a policy that is contrary to my fees rather than the more traditional strict scrutiny. Even under the more
conscience. So, I will not, I refuse to be deducted union dues. And the permissive standard, Illinois’ scheme cannot survive. Pp. 7–11.
US Supreme Court, UPHELD. He does not have to pay union dues.
(2) Neither of Abood’s two justifications for agency fees passes muster
SUPREME COURT OF THE UNITED STATES under this standard. First, agency fees cannot be upheld on the ground
JANUS v. AMERICAN FEDERATION OF STATE, COUNTY, AND that they promote an interest in “labor peace.” The Abood Court’s fears
MUNICIPAL EMPLOYEES, COUNCIL 31, ET AL. of conflict and disruption if employees were represented by more than
5–4 decision for Janus by Justice Samuel Anthony Alito Jr. one union have proved to be unfounded: Exclusive representation of all
the employees in a unit and the exaction of agency fees are not
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR inextricably linked. To the contrary, in the Federal Government and the
THE SEVENTH CIRCUIT 28 States with laws prohibiting agency fees, millions of public employees
No. 16–1466. Argued February 26, 2018—Decided June 27, 2018 are represented by unions that effectively serve as the exclusive
representatives of all the employees. Whatever may have been the case
41 years ago when Abood was decided, it is thus now undeniable that
Illinois law permits public employees to unionize. If a majority of the “labor peace” can readily be achieved through less restrictive means
employees in a bargaining unit vote to be represented by a union, that than the assessment of agency fees.
union is designated as the exclusive representative of all the employees,
even those who do not join. Only the union may engage in collective
bargaining; individual employees may not be represented by another Second, avoiding “the risk of ‘free riders,’ ” Abood, supra, at 224, is not
agent or negotiate directly with their employer. Nonmembers are a compelling state interest. Free-rider “arguments . . . are generally
required to pay what is generally called an “agency fee,” i.e., a insufficient to overcome First Amendment objections,” Knox, supra, at
percentage of the full union dues. Under Abood v. Detroit Bd. of Ed., 311, and the statutory requirement that unions represent members and
431 U. S. 209, 235–236, this fee may cover union expenditures nonmembers alike does not justify different treatment. As is evident in
attributable to those activities “germane” to the union’s collective- non-agency-fee jurisdictions, unions are quite willing to represent
bargaining activities (chargeable expenditures), but may not cover the nonmembers in the absence of agency fees. And their duty of fair
union’s political and ideological projects (nonchargeable expenditures). representation is a necessary concomitant of the authority that a union
The union sets the agency fee annually and then sends nonmembers a seeks when it chooses to be the exclusive representative. In any event,
notice explaining the basis for the fee and the breakdown of States can avoid free riders through less restrictive means than the
expenditures. Here it was 78.06% of full union dues. imposition of agency fees. Pp. 11–18.
Petitioner Mark Janus is a state employee whose unit is represented by (b) Respondents’ alternative justifications for Abood are similarly
a public-sector union (Union), one of the respondents. He refused to join unavailing. Pp. 18–26.
the Union because he opposes many of its positions, including those
taken in collective bargaining. Illinois’ Governor, similarly opposed to
many of these positions, filed suit challenging the constitutionality of the (1) The Union claims that Abood is supported by the First Amendment’s
state law authorizing agency fees. The state attorney general, another original meaning. But neither founding-era evidence nor dictum
respondent, intervened to defend the law, while Janus moved to in Connick v. Myers, 461 U. S. 138, 143, supports the view that the First
intervene on the Governor’s side. The District Court dismissed the Amendment was originally understood to allow States to force public
Governor’s challenge for lack of standing, but it simultaneously allowed employees to subsidize a private third party. If anything, the opposite is
Janus to file his own complaint challenging the constitutionality of true. Pp. 18–22.
agency fees. The District Court granted respondents’ motion to dismiss
on the ground that the claim was foreclosed by Abood. The Seventh (2) Nor does Pickering v. Board of Ed. of Township High School Dist.
Circuit affirmed. 205, Will Cty., 391 U. S. 563, provide a basis for Abood. Abood was not
based on Pickering, and for good reasons. First, Pickering’s framework
Held: was developed for use in cases involving “one employee’s speech and
its impact on that employee’s public responsibilities,” United
States v. Treasury Employees, 513 U. S. 454, 467, while Abood and
1. The District Court had jurisdiction over petitioner’s suit. Petitioner was
other agency-fee cases involve a blanket requirement that all employees
undisputedly injured in fact by Illinois’ agency-fee scheme and his
subsidize private speech with which they may not agree.
injuries can be redressed by a favorable court decision. For jurisdictional
Second, Pickering’s framework was designed to determine whether a
purposes, the court permissibly treated his amended complaint in
public employee’s speech interferes with the effective operation of a
intervention as the operative complaint in a new lawsuit. United States
government office, not what happens when the government compels
ex rel. Texas Portland Cement Co. v. McCord, 233 U. S. 157,
speech or speech subsidies in support of third parties. Third, the
distinguished. Pp. 6–7.
categorization schemes of Pickering and Abood do not line up. For
example, under Abood, nonmembers cannot be charged for speech that
2. The State’s extraction of agency fees from nonconsenting public- concerns political or ideological issues; but under Pickering, an
sector employees violates the First Amendment. Abood erred in employee’s free speech interests on such issues could be overcome if
outweighed by the employer’s interests. Pp. 22–26.
(c) Even under some form of Pickering, Illinois’ agency-fee arrangement jurisprudence, where exacting scrutiny, if not a more demanding
would not survive. Pp. 26–33. standard, generally applies. Overruling Abood will also end the oddity of
allowing public employers to compel union support (which is not
supported by any tradition) but not to compel party support (which is
(1) Respondents compare union speech in collective bargaining and supported by tradition), see, e.g., Elrod v. Burns, 427 U. S. 347. Pp. 42–
grievance proceedings to speech “pursuant to [an employee’s] official 44.
duties,” Garcetti v. Ceballos, 547 U. S. 410, 421, which the State may
require of its employees. But in those situations, the employee’s words
are really the words of the employer, whereas here the union is speaking (4) Reliance on Abood does not carry decisive weight. The uncertain
on behalf of the employees. Garcetti therefore does not apply. Pp. 26– status of Abood, known to unions for years; the lack of clarity it
27. provides; the short-term nature of collective-bargaining agreements;
and the ability of unions to protect themselves if an agency-fee provision
was crucial to its bargain undermine the force of reliance. Pp. 44–47.
(2) Nor does the union speech at issue cover only matters of private
concern, which the State may also generally regulate under Pickering.
To the contrary, union speech covers critically important and public 3. For these reasons, States and public-sector unions may no longer
matters such as the State’s budget crisis, taxes, and collective extract agency fees from nonconsenting employees. The First
bargaining issues related to education, child welfare, healthcare, and Amendment is violated when money is taken from nonconsenting
minority rights. Pp. 27–31. employees for a public-sector union; employees must choose to support
the union before anything is taken from them. Accordingly, neither an
agency fee nor any other form of payment to a public-sector union may
(3) The government’s proffered interests must therefore justify the be deducted from an employee, nor may any other attempt be made to
heavy burden of agency fees on nonmembers’ First Amendment collect such a payment, unless the employee affirmatively consents to
interests. They do not. The state interests asserted in Abood— pay. Pp. 48–49.
promoting “labor peace” and avoiding free riders—clearly do not, as
explained earlier. And the new interests asserted in Harris and here—
bargaining with an adequately funded agent and improving the 851 F. 3d 746, reversed and remanded.
efficiency of the work force—do not suffice either. Experience shows
that unions can be effective even without agency fees. Pp. 31–33. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and
Kennedy, Thomas, and, Gorsuch, JJ., joined. Sotomayor, J., filed a
(d) Stare decisis does not require retention of Abood. An analysis of dissenting opinion. Kagan, J., filed a dissenting opinion, in which
several important factors that should be taken into account in deciding Ginsburg, Breyer, and Sotomayor, JJ., joined.
whether to overrule a past decision supports this conclusion. Pp. 33–47.
Can you imagine? That’s the end of the union. Because the union cannot
(1) Abood was poorly reasoned, and those arguing for retaining it have exist without dues. I’m talking about actual money that keeps the world
recast its reasoning, which further undermines its stare going. So, they do not have union in the South. That is why all the car
decisis effect, e.g., Citizens United v. Federal Election Comm’n, 558 factories the latest ones are there. Toyota, Honda, Nissan and all these
U. S. 310, 363. Abood relied on Railway Employes v. Hanson, 351 U. S. different Volkswagen, they are all down South. Because there are no
225, and Machinists v. Street, 367 U. S. 740, both of which involved unions. The RIGHT TO SELF-ORGANIZATION does not find a system of
private-sector collective-bargaining agreements where the government legislation that supports it.
merely authorized agency fees. Abood did not appreciate the very
different First Amendment question that arises when a State requires its
employees to pay agency fees. Abood also judged the constitutionality RIGHT TO WORK LAW
of public-sector agency fees using Hanson’s deferential standard, which
is inappropriate in deciding free speech issues. Nor did Abood take into
There is the RIGHT TO WORK LAW.
account the difference between the effects of agency fees in public- and
private-sector collective bargaining, anticipate administrative problems
I am a minority, I did not elect for union but I am an individual with the
with classifying union expenses as chargeable or nonchargeable, foresee
RIGHT TO WORK. Therefore, I cannot be forced to belong to the
practical problems faced by nonmembers wishing to challenge those
majority. That is the OPPOSITE of the Right to Self-Organization.
decisions, or understand the inherently political nature of public-sector
bargaining. Pp. 35–38.
SELF-ORGANIZATION
(2) Abood’s lack of workability also weighs against it. Its line between
Article 243. Coverage and employees’ right to self-organization. All
chargeable and nonchargeable expenditures has proved to be
persons employed in commercial, industrial and agricultural
impossible to draw with precision, as even respondents recognize.
enterprises and in religious, charitable, medical, or educational
See, e.g., Lehnert v. Ferris Faculty Assn., 500 U. S. 507, 519. What is
institutions, whether operating for profit or not, shall have the right
more, a nonmember objecting to union chargeability determinations will
to self-organization and to form, join, or assist labor organizations of
have much trouble determining the accuracy of the union’s reported
their own choosing for purposes of collective bargaining. Ambulant,
expenditures, which are often expressed in extremely broad and vague
intermittent and itinerant workers, self-employed people, rural
terms. Pp. 38–41.
workers and those without any definite employers may form labor
organizations for their mutual aid and protection. (As amended by
(3) Developments since Abood, both factual and legal, have “eroded” Batas Pambansa Bilang 70, May 1, 1980)
the decision’s “underpinnings” and left it an outlier among the Court’s
First Amendment cases. United States v. Gaudin, 515 U. S. 506,
WHO ARE NOT ALLOWED TO EXECISE THE RIGHT TO SELF-
521. Abood relied on an assumption that “the principle of exclusive
ORGANIZATION
representation in the public sector is dependent on a union or agency
shop,” Harris, 573 U. S., at ___–___, but experience has shown
Private Sector:
otherwise. It was also decided when public-sector unionism was a
relatively new phenomenon. Today, however, public-sector union
1. Managerial Employees;
membership has surpassed that in the private sector, and that
2. Confidential Employees;
ascendency corresponds with a parallel increase in public
3. In a limited sense, Supervisors;
spending. Abood is also an anomaly in the Court’s First Amendment
They can only form a union not with the rank and file employees which P: Why?
are normally bigger unions composed of more people. But the Rank and
File, they are the employees that enjoy the fullness of the Right to Self- W: Because he had a limp. He was crouch. He had a limp.
Organization.
P: If you can remember him, can you point him out if he’s here in the
1. Managerial Employees court right now?
Book 5, Rule I, Section 1: W: There it is.
(hh) “Managerial Employee” refers to an employee who is vested with The records show your honor that the witness pointed his finger at the
powers or prerogatives to lay down and execute management policies specific individual. They ask his name: What is your name? And he says
or to hire, transfer, and execute management policies or to hire, Juan Direcho, that is the name your Honor. And this representation
transfer, suspend, layoff, recall, discharge, assign or discipline moves to amend the information from John Doe to Juan Direcho.It’s still
employees the same charge but now you can name him.
With respect to Corporations, you have to get the right name of the
corporation. Because the name is almost synonymous to the identity of
Article 255 [245]. Ineligibility of managerial employees to join any
the corporation. If you say, that it is engaged in fraud and the name of
labor organization; right of supervisory employees. Managerial corporation is San Miguel Properties Incorporated and you file the
employees are not eligible to join, assist or form any labor
summons in the office of San Miguel Corporation.
organization. Supervisory employees shall not be eligible for
membership in a labor organization of the rank-and-file employees
What will San Miguel Corporation do?
but may join, assist or form separate labor organizations of their own.
The rank and file union and the supervisor’s union operating within
It will file an answer with a Motion to Dismiss for lack of cause of action.
the same establishment may join the same federation or national
Why lack of cause of action? Kinsa may sad-an ini sa ilang information?
union.
San Miguel Corporation, San Miguel Properties Incorporated man mi. Dili
man mi San Miguel Corporation. He has no cause of action against us.
Why are they disallowed from forming a union? We did not cause him loss or pain. He has to look for San Miguel
Corporation because we are not that. This is the office of San Miguel
Because the definition of the “Managerial Employees” is one who acts Properties. Tama ba? See the difference in Remedial law between a
for and in behalf of the employer. natural and juridical person. A juridical person is helpless without natural
person. That’s why managerial employees are not just optional. They
 Either he manages a department or the whole enterprise. are terribly essential of the workings of the employer. Because
 He lays down policies. otherwise, the employer could not move.
 He fires, hires, disciplines, demotes, promotes, transfers.
Managerial employees are even more permanent than rank and file
Those are his power. He acts for the employer. employees. Because with rank and file employees, without managerial
employees the employer cannot move. Somebody has to be a
Why does the employer not act for himself? Why does he need an managerial employee because a juridical person, a corporation can only
employee to act for him? act through natural persons. Without natural persons, it does not act.
Because there are employers that cannot act for themselves. Why? That is why by essence, since it acts for the employer, IT CANNOT
Because they are creatures of creative law. They are persons that exist BARGAIN WITH THE EMPLOYER.
in the contemplation of law only. Those are the corporations (juridical
persons). They have no physical referent. Corporations as juridical It’s like bargaining with yourself. You acting for the employer, answers
persons, they have no referent. Where are they? San Miguel you also asking something from the employer. How can that happen?
Corporation, where is it? There’s the factory, there’s the sign: San Miguel
Brewery. That’s where it is. NO, the building that has a sign San Miguel, By analogy
that is not San Miguel Corporation. Because if it were, then there would
be many. There are many signs all over. If you are your own lawyer, you go before the court. Are you ready?
J: Counsel for the defense.
Where is it? It’s different when you talk about natural person. Somebody
is seen in the middle of the night, shooting and killing this person. He’s Y: Here your honor.
not identified. He runs away. But there are witnesses. Does that prevent
you from filing a case? NO, you can file a case; People of the Philippines J: Why are you here? You have no counsel?
vs John Doe. Because you know there is a physical referent. In the
meantime, the NBI, the CIS, the SOCO; they are all over the place Y: I am my own counsel, your honor. I am the accused, I am also the
looking for this guy. Finally, they find him and they bring him to court. counsel for the accused.
Can the prosecution finally says: Your Honor, we are presenting here
the accused. And we are asking the witness: where were on that faithful Is that not a contradiction? It is ridiculous. You will sit in the witness
night of August 31? stand and then the interpreter will come and say: Raise your right hand,
do you swear to tell the truth, the whole truth and nothing but the truth,
W: I was in such and such a place. so help me God.
P: What did you see when you were there? Y: Yes, I do.
W: I saw a person fire his rifle at the victim who fell and he died later. J: Counsel may proceed for direct examination.
P: Did you get a good look at that person? Then you stand up from the witness stand. And you are reprimanded
and you explained that you are also the counsel. Tindog nasad ka. (Usual
W: Not as much as I would like to. But I can remember him. scenario in a direct examination)
It’s ridiculous, it’s funny but it’s not impossible. Many people have done Justice J.B.L. Reyes says, even if the law does not include them. The red
it to their great dismay. That’s why the great Oliver Wendell Holmes letter of the law, since they are in the same situation, they are likewise
said: “If you are your own counsel, you have a fool for a prohibited from donating unto each other.
client.”…Nangabogado ka sa imong kaugalingon, punto buangbuang na
imong kliyente. He’s saying that, it can be carried out physically. But it What is that principle in law? That is called the DOCTRINE OF
is ludicrous and sometimes it’s disastrous. Because you cannot think NECESSARY IMPLICATION. If you understand very well why spouses
objectively about your case. It’s like objectivity like you are a physician, are prohibited from donating to each other. With all the more reason,
you are a surgeon and you have a wart. And you say, it’s just a small common law relationship are prohibited from donating to each other.
wart, I will just operate it myself. So,you have your surgical Because they are under greater stress of undue and improper influence.
instruments.You’re operating yourself, that’s ridiculous. So you’re the So, therefore, even if the law does not say so. They are as much as
doctor and you are the patient at the same time. How can you do that? included in the law by necessary implication.
So, if in law, it is said that if you are your own counsel,you have a fool
for a client. In medicine, it is said that if you are your own doctor then Managerial employees are prohibited from joining a union for purposes
you have a patient that is dead. of collective bargaining. It does not say confidential employees but
because confidential employees are in the same situation as
That is how universal the question of objectivity. YOU CANNOT BARGAIN management employees, then the Court itself says, they are also
WITH YOUR OWN SELF. That is what happens if you are managerial ABSOLUTELY PROHIBITED from joining a union for purposes of
employee. That’s why you are ABSOLUTELY PROHIBITED from joining collective bargaining.
a union for purposes of collective bargaining.
September 10, 2020 Part 1A by Louis Palma Gil
Managerial Employees Can Join a Worker’s Association
Right to Self-Organization
But, mind you, you can join an association for purposes other than
bargaining. You are a managerial employee, there is a worker’s It is the individual worker who has the right to self-organization which
association that is running a mortuary fund. Can you not join it? YES, includes the right to form, join, and assist the creation formation
YOU CAN. There is no law prohibiting you from doing that. negotiation of a union, for purposes of collective bargaining.
Why? Collective bargaining is the heart to right to self organization. If

this is not the purpose what is it called? Workers
Because the law that prohibits you is limiting you from exercising you Association, because the purpose is mutual gain and cooperation. Its
right to self-organization not your freedom of association. Mortuary goal is not contrary to law, but collective bargaining seems to be
fund, you contribute regularly to that fund and any member there who contrary to law - that is why there is a law creating right to self-
dies, receives an agreeable sum by the statutes of that organization. organization.
That is that kind of organization that you are much much more willing
to just contribute than being the beneficiary. So, you contribute, that is Collective bargaining seems to be contrary to law. Why? If you
not bargaining. That is just for a purpose not contrary to law. That is a are the certified collective bargaining agent of the appropriate
worker’s organization and you can make it a manager’s organization.
bargaining unit and you submit bargaining proposals to management
There is no prohibition. It’s a worker’s association or a management
and tell management that you have to arrive with a contract. You have
association. It is not for purposes of collective bargaining.
the right to tell management that you cannot run away from me and
PROHIBITION must sit down and if you don't then I have a cause of action against
you for refusing to bargain or for bargaining in bad faith. This
What is prohibited is for managers join a union for purposes of collective seems to be contrary to law because there seems to be no meeting of
bargaining. Because that is when CONFLICT OF INTEREST CANNOT minds! there is one mind that says come meet with me whether you like
BE PREVENTED. it or not (contrary to principle of autonomy of contracts)
2. Confidential Employees Autonomy of Contracts - parties are free to enter or not into a
contract and you cannot force a party to enter into a contract. For
They are also in the same situation as managerial employees. They are instance, you cannot compel someone to marry you just because you
privy to confidential information that is labor relations related. So, they are carrying his baby. A marriage like that is voidable as it is under
safeguard it, maintain it, update the information for the purpose of coercion.
managerial use. You can also use it for the purpose of the union. You
will find out exactly what management earns. What are its expenses etc. Thus now, ER cannot say that I cannot be forced to enter into contract
with you. (That is not allowed) ER has to sit down and bargain. There is
If you are a cost accountant, if you are the chief accountant, you will this thing called Mandatory Subject of Bargaining: Terms and
know that. That is why because you are confidential employee, you are Conditions of Work.
prohibited from forming a union. Because you can use that which is
advantageous to the union which you are mandated to safeguard and The membership or composition of the organization is NOT the
keep solely for management. You might betray management and give it defining factor of the organization. A labor organization is
to the union. That’s why you are in the same situation as the managerial defined by its PURPOSE. Even if it is made up of workers, if its
employee.
purpose is not for collective bargaining then it is not a labor
organization, but an ordinary organization and its purpose is not contrary
So, even if the Labor Code does not prohibit you. Jurisprudence prohibits
you, if you are a confidential employee. That is the same as the to law.
Macabuena Ruling.
 For example, an organization to help workers secure land, so
Remember? Justice J.B.L. Reyes, he was asked, if spouses are prohibited it will be a home seekers association.
from donating to each other because they might be subject to undue  Another example, a group of workers who want to help each
and improper disadvantageous influence with each other. How about other in the event of the happening of death, so it is a
those in common law relationship without the benefit of marriage? Can mortuary association
they donate to each other?
It is not a union or a labor organization but it is a Workers association. states. It shall include any individual whose work has
They are not exercising the right to self organization, but only the ceased as a result of or in connection with any current
freedom of association. labor dispute or because of any unfair labor practice if he
has not obtained any other substantially equivalent and
If you exercise the right to self organization, and it is for the regular employment.
purpose of Collective Bargaining, you can also exercise it for
other purposes. Thus, you can also make it, at the same time, a
mortuary association, or a credit union - the law does not prohibit it. The
definition of a labor organization under the labor code is an aggrupation Art. 212. Definitions. “Managerial employee” is one who is vested
of workers whose purpose, in part or in whole, is to arrive at an with the powers or prerogatives to lay down and execute
agreement as to terms and conditions of work. management policies and/or to hire, transfer, suspend, lay-off, recall,
discharge, assign or discipline employees. Supervisory employees are
ER-EE relationship is always between an individual and an ER. Employer those who, in the interest of the employer, effectively recommend
could be single proprietorship, partnership, or corporation. But what such managerial actions if the exercise of such authority is not
about a Juridical Person and Another Juridical Person can they merely routinary or clerical in nature but requires the use of
enter into an ER-EE contract? When does that happen? in a independent judgment. All employees not falling within any of the
collective bargaining agreement. For example, ER is San Miguel above definitions are considered rank-and-file employees for
Corporation, and the party to which it comes into an agreement is IBM purposes of this Book.
- Ilaw at Buklod ng Manggagawa sa San Miguel Corporation (Juridical
Person) - an aggrupation of workers with a constitution and by laws or (Putol putol si FR hinay ang AdduNet ☹ but I’m trying my best.)
who are given a charter by a federation and register with the DOLE and
the DOLE grants them into a Certificate. How is the Employer (ER) related to an Employee (EE)? It is not
found in the Labor Code. The ER is the owner of enterprise, and the ER
Is a CBA an ER-EE contract? (Fr's answer is unclear because of poor is the one who co-ops the EE. That is why ER has the first say. Social
AdDU internet connection - parang YES but I do not want to put YES if Justice merely brings up the EE so that he can approach the ER. Can the
I am not 100% sure) EE be an equal to the ER? No, he can never be. The EE is fully backed
by the Labor Code.
The ER-EE contract is NOT between the ER corporation and the Union
(Juridical Person) NO! Union is merely a representative party and NOT Managerial Prerogative – the fullness of ownership by the Employer
the real party. is somehow limited or reduced because of the Labor Code
Thus, If the union's personality is lost and it has filed a case for The Civil Code does not protect people from a bad bargain, but
underpayment of wages, suit continues even if the only against fraud. Gi unsa ka pagpapirma? Gipa inom kuno kag beer
representative party's registration has been cancelled. In your ug gipapirma! Fraud na! Pero if niingon ka na gigutom nako papirmahi
remedial law, there is no more party as there is no more personality. nakog ER-EE contract unsa mana? That is NOT fraud! That is a bad
You are no longer a person in law and in fact. A suit for non-payment or bargain, and the civil code does not protect you from that. You cannot
underpayment of wages filed by a union whose registration has been invoke the law? Ah mali! You CAN invoke the LABOR CODE! The Labor
cancelled CONTINUES, Why? Because, the real parties in interest Code says you cannot work for somebody for less than the minimum
are the workers of that employer. wage. The terms of ER-EE agreement are dictated by law.
Sweetheart Contract - Book V of the Labor Code, if there is a union

CONTRACTING & SUBCONTRACTING and your agreement is the minimum standard – Minimum wage lang
gihapon inyong gikasabutan – that is unfair labor practice! Because you
Parties involved: Indirect Employer and another Corporation (Man Power already had that before you organized the union! The terms that you
Corporation (MPC)).They enter into a contract. MPC provides service by arrive in the CBA must be better than the terms and conditions in the
way of actual human beings to do janitorial work for the Indirect Labor Code. That is a Sweetheart Contract.
Employer. The Janitors are hired by the MPC. MPC commits certain
September 10, 2020 Part 1B by Christine Paulma
number of workers to clean the workplace of the Indirect Employer.
Is there an ER-EE contract in Contracting and Subcontracting? It is there We went through employer-employee relationship. The employer and
an individual worker - that's an individual contract of employment, four
in the Labor Code? There is no definition of ER-EE relationship in the
requisites. Then we went to collective bargaining agreement.
labor code! Where is it found? In LVN case! It provides what is an ER-
EE relationship. That it is a contract replete with Public Interest. So many In collective bargaining agreement, there's no more question about the
people are in that kind of contract even without them knowing it! four requisites. How is that discussed? That is discussed in the
bargaining unit. The bargaining unit do not count. It's just a
There is a definition of Employer and Employee under the Labor Code: configuration, but there's already an employer-employee relationship.
Art. 212. Definitions. In contracting and subcontracting, what happens? You have two (2)
entities –
a. “Employer” includes any person acting in the interest of an
employer, directly or indirectly. The term shall not include a. the manpower agency or the security agency; and
any labor organization or any of its officers or agents b. the indirect employer
except when acting as employer.
And there are these group of workers that are seconded. Seconded –
perform the obligations in the contract entered into between the parties.
b. “Employee” includes any person in the employ of an That contract, I submit, is not employer-employee relationship. That
employer. The term shall not be limited to the employees contract only becomes employer-employee relations when the workers
of a particular employer, unless the Code so explicitly that are seconded, their welfare, their benefits, their wages comes into
play. That is when the labor tribunal system has jurisdiction over them.
Manpower Agency v Indirect Employer, ART. 107. Indirect Employer. – The provisions of the
Not Under Jurisdiction of Labor Arbiter immediately preceding article shall likewise apply to any person,
But otherwise, you take out the workers, mag away ning duha, muingon partnership, association or corporation which, not being an
ang manpower agency, "the last wage order, the increase from the employer, contracts with an independent contractor for the
original minimum wage, the increase is supposed to be for the account performance of any work, task, job or project.
of the indirect employer." "But we advanced it! Therefore, you refund
us." Can you go to the labor arbiter when the issue is the refund of the ART. 108. Posting of Bond. – An employer or indirect employer
increase of the wage order? Can the manpower agency (complainant), may require the contractor or subcontractor to furnish a bond
can he make the respondent (indirect employer), with that cause of equal to the cost of labor under contract, on condition that the
action, be within the jurisdiction of the labor arbiter? The answer is no! bond will answer for the wages due the employees should the
contractor or subcontractor, as the case may be, fail to pay the
Manpower Agency Workers v Indirect Employer, same.
Under Jurisdiction of Labor Arbiter
It's different when it is the workers of the manpower agency complain, ART. 109. Solidary Liability. – The provisions of existing laws
"we have not been paid!" Here, the issue is between the manpower to the contrary notwithstanding, every employer or indirect
agency (but I think Father refers to WORKERS of the manpower agency employer shall be held responsible with his contractor or
following his discussion in the next sentences) and the indirect subcontractor for any violation of any provision of this Code. For
employer. So they are impleaded before the labor arbiter. Now, the purposes of determining the extent of their civil liability under
indirect employer says to the labor arbiter, "I have already paid him this Chapter, they shall be considered as direct employers.
(manpower agency) the full amount of the salaries according to the
contract that we have agreed upon. And now, you are ordering me to
pay again!" But, it does not matter to the workers whether you have COLLECTIVE BARGAINING AGREEMENT
paid the manpower agency or not, the workers can still sue you. That is
the privilege granted to them by law. So you (indirect employer) pay
twice. Can you now file a third-party complaint against the manpower Collective bargaining agreement is the object of the right to self-
agency? To ask for reimbursement of that which you paid already to him organization and labor organizations. But then, there are side issues.
which is supposed to be paid to the workers but now you were made to What are those side issues?
pay again? Can you file, in that same suit? The answer is yes! Because
it is a mere incident to the primary cause of action which is 1. Government Employees
underpayment or non-payment of wages.
Why are government employees an issue? Because of ambiguous
But originally, that contract does not belong to the Labor Code (contract misplacements on the right to self-organization. What do you mean by
between manpower agency and indirect employer). That is why there is that? Article IX-B, Section 2(5) of the Constitution says that the right to
a special provision in the Labor Code, 106 to 109. The real employer- self-organization shall not be denied to government employees.
employee relationship does not have to be placed here because if you
look for it, it's not there. [But] that (I think he is referring to Art.106- 1987 Constitution. Article IX-B.
109) is under the jurisdiction of the Labor Code.
Section 2.
ART. 106. Contractor or Subcontractor. – Whenever an
employer enters into a contract with another person for the (1) The civil service embraces all branches, subdivisions,
performance of the former’s work, the employees of the contractor instrumentalities, and agencies of the Government,
and of the latter’s subcontractor, if any, shall be paid in including government-owned or controlled corporations
accordance with the provisions of this Code. with original charters.
In the event that the contractor or subcontractor fails to pay the (2) Appointments in the civil service shall be made only
wages of his employees in accordance with this Code, the employer according to merit and fitness to be determined, as far
shall be jointly and severally liable with his contractor or as practicable, and, except to positions which are policy-
subcontractor to such employees to the extent of the work determining, primarily confidential, or highly technical,
performed under the contract, in the same manner and extent by competitive examination.
that he is liable to employees directly employed by him.
(3) No officer or employee of the civil service shall be
The Secretary of Labor and Employment may, by appropriate removed or suspended except for cause provided by law.
regulations, restrict or prohibit the contracting-out of labor to
protect the rights of workers established under this Code. In so (4) No officer or employee in the civil service shall engage,
prohibiting or restricting, he may make appropriate distinctions directly or indirectly, in any electioneering or partisan
between labor-only contracting and job contracting as well as political campaign.
differentiations within these types of contracting and determine
who among the parties involved shall be considered the employer (5) The right to self-organization shall not be denied to
for purposes of this Code, to prevent any violation or government employees.
circumvention of any provision of this Code.
(6) Temporary employees of the Government shall be given
There is "labor-only" contracting where the person supplying such protection as may be provided by law.
workers to an employer does not have substantial capital or
investment in the form of tools, equipment, machineries, work
premises, among others, and the workers recruited and placed by Can you imagine that? “Shall not be denied to government employees.”
such person are performing activities which are directly related to And yet, the Supreme Court has, in many instances, reiterated the ruling
the principal business of such employer. In such cases, the person that there is no collective bargaining with employee's organization. The
or intermediary shall be considered merely as an agent of the government does not bargain with government employees as to their
employer who shall be responsible to the workers in the same wages. "The branches of government agencies, subdivisions,
manner and extent as if the latter were directly employed by him. instrumentalities of government, including government owned and
controlled corporations with original charters do not enter into collective
bargaining agreement." That was dramatically said by the Supreme
Court in the Alliance of Government Workers v. Minister of Labor the terms and conditions of employment. And this is effected through
and Employment G.R. No. L-60403 (1983). That's an en banc statutes or administrative circulars, rules, and regulations, not
decision. through collective bargaining agreements.
ALLIANCE OF GOV’T WORKERS v. Personnel of government-owned or controlled corporations are now

MINISTER OF LABOR AND EMPLOYMENT part of the civil service. It would not be fair to allow them to engage
GR No. L-60403, 1988 in concerted activities to wring higher salaries or fringe benefits from
Government even as other civil service personnel such as the
FACTS: Petitioner Alliance of Government Workers (AGW) is a hundreds of thousands of public school teachers, soldiers, policemen,
registered labor federation while the other petitioners are its affiliate health personnel, and other government workers are denied the right
unions with members from among the employees of the offices, to engage in similar activities.
schools, or government owned or controlled corporations such as
PNB, GSIS, PUP. According to the petitioners, P.D. No. 851 To say that the words "all employers" in P.D. No. 851 includes the
requires all employers to pay the 13th-month pay to their employees Government and all its agencies, instrumentalities, and government-
with one sole exception found in Section 2 which states that owned or controlled corporations would also result in nightmarish
"Employers already paying their employees a 13th month pay or its budgetary problems.
equivalent are not covered by this Decree. " The petitioners contend
that Section 3 of the Rules and Regulations Implementing The workers in the respondent institutions have not directly petitioned
Presidential Decree No. 851 included other types of employers not the heads of the respective offices nor the representatives in the
exempted by the decree. They state that nowhere in the decree is Batasang Pambansa. They have acted through labor federation, these
the secretary, now Minister of Labor and Employment, authorized to are government employees ha, and its affiliated unions. In other words,
exempt other types of employers from the requirement. the workers and employees of these state firms, colleges, and
universities are taking collective action through a labor federation which
ISSUE: Are the branches, agencies, subdivisions, and uses the bargaining power of organized labor to secure increased
instrumentalities of the Government, including government owned or compensation for its members. The government workers wanted to be
controlled corporations included among the "employers"" under covered by the 13th month pay law; they're saying that government is
Presidential Decree No. 851 which are required to pay their like the employer who is obliged to pay the 13th month pay. "Kami sad
employees receiving a basic salary of not more than P1,000.00 a nga government, tagai sad mi! Nia ra among representative, they are
month, a thirteenth (13th) month pay not later than December 24 of bargaining."
every year? – NO.
Then the SC said, since the terms and conditions of government
RULING: The issue raised in this petition is more basic and employment are fixed by law, the government workers cannot use the
fundamental than a mere ascertainment of intent or a construction same weapons employed by workers in the private sector. In
of statutory provisions. It is concerned with a revisiting of the government employment, it is the legislature and, where properly given
traditional classification of government employment into delegated power, the administrative heads of the government, which fix
governmental functions and proprietary functions and of the many the terms and conditions of employment. And this is effected through
ramifications that this dichotomous treatment presents in the statutes or administrative circulars, rules and regulations, but not
handling of concerted activities, collective bargaining, and strikes by through collective bargaining.
government employees to wrest concessions in compensation, fringe
benefits, hiring and firing, and other terms and conditions of That is decided despite what Article IX-B Section 2(5) of the Constitution
employment. which says that the right to self-organization shall not be denied to
government employees. That has to be reconciled. Now, if you do not
The workers in the respondent institutions have not directly want to deprive government employees with the right to self-
petitioned the heads of their respective offices nor their organization, then why does the Constitution say that government office
representatives in the Batasang Pambansa. They have acted through is a public trust? The basis for employment in government is not
a labor federation and its affiliated unions. In other words, the contract, it is either appointment or election. And there can only be an
workers and employees of these state firms, college, and university appointment, if there is a said position with a carrying compensation.
are taking collective action through a labor federation which uses the That is called in civil service as a plantilla. There can only be an election
bargaining power of organized labor to secure increased if the law has created that provision and dictated that, it is those that
compensation for its members. will gain the plurality of votes in an election. So why is that placed in the
Constitution? They wanted to live under the myth that with Cory Aquino,
Under the present state of the law and pursuant to the express there was now the disbursing of social justice.
language of the Constitution, this resort to concerted activity with the
ever present threat of a strike can no longer be allowed. Now in 2019, the Supreme Court, en banc again, under the pen of
Justice Marvic Leonen, he now says, "even corporation that have no
The general rule in the past and up to the present is that "the terms original charter, government owned and controlled corporations that are
and conditions of employment in the Government, including any formed under the Corporation Code like the GSIS Family Bank (because
political subdivision or instrumentality thereof are governed by law" it was originally Royal Savings Bank and then it went bankrupt, the GSIS
(Section 11, the Industrial Peace Act, R.A. No. 875, as amended and put in money, so now GSIS controls it; the union there wants to
Article 277, the Labor Code, P.D. No. 442, as amended). Since the negotiate a CBA. The management says the subsidiary of GSIS is not
terms and conditions of government employment are fixed by law, allowed to enter into a collective agreement), for as long as you are
government workers cannot use the same weapons employed by government owned and controlled, you have no bargaining rights. Your
workers in the private sector to secure concessions from their salaries are determined by law that standardizes the pay of government
employers. The principle behind labor unionism in private industry is owned and controlled financial institution. You have no right to bargain.
that industrial peace cannot be secured through compulsion by law. This one (referring to Alliance case) is GOCC with original charters. Now,
Relations between private employers and their employees rest on an GOCCs, even without original charters, they cannot bargain.
essentially voluntary basis. Subject to the minimum requirements of
wage laws and other labor and welfare legislation, the terms and Leonen says: you are not governed by Civil Service but you cannot
conditions of employment in the unionized private sector are settled bargain. You can go to Labor Code for other issues but you cannot
through the process of collective bargaining. In government bargain.
employment, however, it is the legislature and, where properly given
delegated power, the administrative heads of government which fix
GSIS FAMILY SAVINGS BANK v. SEC. VILLANUEVA Issue: Whether COA gravely abused its discretion tantamount to
GR No. 210773, 2019 lack or excess of jurisdiction in denying Balayan Water District
employees’ entitlement to accrued COLA for the period 1992-1999.
Officers and employees of government-owned or controlled
corporations without original charters are covered by the Labor Code, Ruling: (1) Petitioners' myopic reading of the decision fails to
not the Civil Service Law. However, non-chartered government- impress. It is true that in MNWD, the Court clarified that LOI No. 97
owned or controlled corporations are limited by law in negotiating covered local water districts and that the twin requirements of
economic terms with their employees. This is because the law has incumbency and prior receipts are relevant only in cases of non-
provided the Compensation and Position Classification System, which integrated benefits.
applies to all government-owned or controlled corporations,
chartered or non-chartered. Nevertheless, the Court ultimately upheld the disallowance of COLA
back payments in the above- mentioned case because the said
The right to self-organization is not limited to private employees and allowance was already deemed integrated in the compensation of
encompasses all workers in both the public and private sectors, as government employees. xxx
shown by the clear declaration in Article IX(B), Section 2(5) that "the
right to self-organization shall not be denied to government The clear policy of Section 12 is "to standardize salary rates among
employees." Article III, Section 8 of the Bill of Rights likewise states, government personnel and do away with multiple allowances and
"the right of the people, including those employed in the public and other incentive packages and the resulting differences in
private sectors, to form unions, associations, or societies for compensation among them." Thus, the general rule is that all
purposes not contrary to law shall not be abridged." allowances are deemed included in the standardized salary.
However, there are allowances that may be given in addition to the
While the right to self-organization is absolute, the right of standardized salary.
government employees to collective bargaining and negotiation is
subject to limitations. Collective bargaining is a series of negotiations Prescinding from the foregoing, the Court had consistently ruled that
between an employer and a representative of the employees to not being an enumerated exclusion, the COLA is deemed already
regulate the various aspects of the employer-employee relationship incorporated i., the standardized salary rates of government
such as working hours, working conditions, benefits, economic employees under the general rule of integration of the SSL.
provisions, and others.
(2) Refund of Disallowed Amount Excused on Account of
Relations between private employers and their employees are subject Good Faith. - Even assuming that the disallowance of the COLA
to the minimum requirements of wage laws, labor, and welfare back payments was appropriate, petitioners still believe that they
legislation. Beyond these requirements, private employers and their should be absolved from refunding the amount on the basis of good
employees are at liberty to establish the terms and conditions of their faith.
employment relationship. In contrast with the private sector, the
terms and conditions of employment of government workers are Nevertheless, good faith should be appreciated in favor of BWD
fixed by the legislature; thus, the negotiable matters in the public employees who merely received their COLA back payments. Passive
sector are limited to terms and conditions of employment that are recipients of disallowed disbursements who acted in good faith are
not fixed by law. exempt from refunding the disallowed amount.
Social Security System Employees Association v. Court of In Silang v. Commission on Audit, the Court explained that passive
Appeals explains that instead of a collective bargaining agreement or recipients are absolved from refunding as they had no participation
negotiation, government employees must course their petitions for a in the disallowed disbursement, to wit:
change in the terms and conditions of their employment through the
Congress for the issuance of new laws, rules, or regulations to that Clearly, therefore, public officials who are directly responsible for, or
effect: participated in making the illegal expenditures, as well as those who
actually received the amounts therefrom - in this case, the disallowed
Government employees may, therefore, through their unions or CNA Incentives-shall be solidarity liable for their reimbursement.
associations, either petition the Congress for the betterment of the
terms and conditions of employment which are within the ambit of By way of exception, however, passive recipients or payees of
legislation or negotiate with the appropriate government agencies for disallowed salaries, emoluments, benefits, and other allowances
the improvement of those which are not fixed by law. need not refund such disallowed amounts if they received the same
in good faith. Stated otherwise, government officials and employees
When it comes to collective bargaining agreements and collective who unwittingly received disallowed benefits or allowances are not
negotiation agreements in government-owned or controlled liable for their reimbursement if there is no finding of bad faith.
corporations, Executive Order No. 203 unequivocally stated that
while it recognized the right of workers to organize, bargain, and Discussion: The COA disallowed the grant of the Board of
negotiate with their employers, "the Governing Boards of all covered Trustees/Directors of the Balayan Water District on unpaid COLAs
[government-owned or controlled corporations], whether Chartered mandated by wage order. The Supreme Court said that water districts
or Non-chartered, may not negotiate with their officers and are covered by RA 6758 and the implementing executing order of
employees the economic terms of their [collective bargaining President Cory Aquino, LOI No. 97. The LOI says that their COLA is
agreements]." already deemed integrated into the standardization of wages of GOCC
[employees].
September 10, 2020 Part 2A by Ergel Rosal
Once again, there is a reiteration that water districts are GOCCs with
BALAYAN WATER DISTRICT v. COMMISSION ON AUDIT original charter.
G.R. No. 229780, January 22, 2019
En Banc, Reyes Jr. J. Q: Will the employees be asked to refund the supposedly non-allowable
issuances by reason of collective bargaining?
[Lifted from Lab Stan Review 2020 TSN] A: No, they were in good faith when they received it. It was allowed by
a former COA auditor. No reimbursement.
Government employees, although there are some portion of the COOPERATIVE RURAL BANK OF DAVAO CITY, INC. v. CALLEJA
Constitution which aspirationally want them not to be denied the right G.R. No. 77951, September 26, 1988
to self-organization, they have no right to self-organization.
Doctrine: An employee therefore of such a cooperative who is a
Will they ever have the right? Can Congress do that? I don’t think so. member and co-owner thereof cannot invoke the right to collective
You have to amend the Constitution. You have to take out that provision bargaining for certainly an owner cannot bargain with himself or his co-
which says “public office is a public trust.” owners. In the opinion of August 14, 1981 of the Solicitor General he
correctly opined that employees of cooperatives who are themselves
Now, if it is based on contract, then you can negotiate because members of the cooperative have no right to form or join labor
negotiation is premised on contract. If it is appointment or election, it is organizations for purposes of collective bargaining for being themselves
the law that determines your terms and conditions of work. co-owners of the cooperative. However, in so far as it involves
cooperatives with employees who are not members or co-owners
2. Aliens thereof, certainly such employees are entitled to exercise the rights of
all workers to organization, collective bargaining, negotiations and
We are talking about non-resident aliens. others as are enshrined in the Constitution and existing laws of the
country.
Non-resident aliens, to be able to work in the Philippines, require two
(2) things: This bank already went bankrupt. It was dissolved. It used to be located
in Magallanes.
1. Procure a Working Visa
Granted by the Bureau of Immigration. September 10, 2020 Part 2B by Alexa Marie Singanon
2. Procure a Work Permit
Issued by DOLE. This is obtained by the applicant employer So what happens when you resign from membership from the
and is not transferable. Hence, there is no blanket authority cooperative? And you remain an employee. You purposely resign so that
to work everywhere in the Philippines. you can join the [union]. Is that allowed?
The working visa is employer-specific. If he is a permanent resident in Yes, that is allowed by the decision in Central Negros Cooperative v.
the Philippines, he can work anywhere. Secretary of Labor (1991).
So those who go to Australia, Canada, etc. on a working visa, that is CENTRAL NEGROS ELECTRIC COOPERATIVE, INC.
employer-specific. After their working visa [expires], they have to go (CENECO) v. HONORABLE SECTRETARY
home. Otherwise they will be TNT. While you are there on a working G.R. No. 94045, September 13, 1991
visa, you can apply for permanent residency. Once you are approved,
you can now work anywhere. Facts: On August 15, 1987, CENECO entered into a collective
bargaining agreement with CURE, a labor union representing its rank-
For non-resident aliens here in the Philippines, they are granted working and-file employees, providing for a term of three years.
visas. Once they come here, they must secure a work permit which must Subsequently, CURE wrote CENECO proposing that negotiations be
be employer specific. Now, if they find out that under such employer conducted for a new collective bargaining agreement (CBA). CENECO
there is a union among the workers, can they join the union? Do they however denied CURE’s request on the ground that, under applicable
have the right to self-organization for purposes of collective bargaining? decisions of the Supreme Court, employees who at the same time
are members of an electric cooperative are not entitled to form or
It depends on whether or not in their country of origin similar grant to join a union.
the right to self-organization is made available to Filipinos who have
work permits like they have (Reciprocity). Prior to the submission of the proposal for CBA re-negotiation, CURE
members, in a general assembly, approved Resolution No. 35
If they are resident aliens, no need to secure a working permit because whereby it was agreed that "all union members shall withdraw,
they have the right to stay here. They can work anywhere. retract, or recall the union members’ membership from Central
Negros Electric Cooperative, Inc. in order to avail (of the full benefits
Example: Fr. McNamara has been staying in the Philippines for over 40 under the existing Collective Bargaining Agreement entered into by
years. He also applied for Filipino citizenship. The requirements as and between CENECO and CURE, and the supposed benefits that our
discussed no longer apply to him. That’s why he was also able to serve union may avail (of) under the renewed CBA." However, the
as dean for one term in Ateneo. If you are a foreigner, you are not withdrawal from membership was denied by CENECO.
allowed to be an administrator in a Philippine educational institution.
Educational institutions must be 100% Filipino-owned except if it is a When CURE filed a petition for direct recognition or for certification
school for foreign ambassador and diplomats in the Philippines. election, supported by 282 or 72% of the 388 rank-and-file
employees in the bargaining unit of CENECO, CENECO filed a motion
3. Employees of a Cooperative to dismiss on the ground that there are legal constraints to the filing
of the certification election, citing the ruling laid down by this Court
If you are a member of the cooperative and at the same an employee in Batangas I Electric Cooperative Labor Union v. Romeo A. Young,
of the cooperative, you do not have the right to self-organization vis-à- (BATANGAS case) to the effect that "employees who at the same
vis the cooperative. time are members of an electric cooperative are not entitled to form
or join unions for purposes of collective bargaining agreement, for
Why? Conflict of Interest. certainly an owner cannot bargain with himself or his co-owners."
The highest decision-making body of the cooperative is the General Issue: Are the employees of CENECO who withdrew their
Assembly of Employees. It’s not the Board of Directors. If it were a membership from the cooperative entitled to form or join CURE for
stock and profit corporation, the highest authority under Sec. 23 of the purposes of the negotiations for a collective bargaining agreement
Revised Corporation Code is the Board of Directors. Even if you are a proposed by the latter?
stock-holder of a corporation and you are an employee of the
corporation, you can still join the union. But in a cooperative, if you are Held: YES. The right of the employees to self-organization is a
an employee and member at the same time, you cannot join the union. compelling reason why their withdrawal from the cooperative must
be allowed. As pointed out by CURE, the resignation of the member- employer — the place where they really work and clean and sanitize.
employees is an expression of their preference for union membership That is not their employer.
over that of membership in the cooperative. The avowed policy of
the State to afford full protection to labor and to promote the primacy So, you can form a union vis a vis the manpower agency. However, if
of free collective bargaining mandates that the employees’ right to the manpower contract constitutes labor-only contracting, then the
form and join unions for purposes of collective bargaining be manpower agency is cancelled and the only employee is the indirect
accorded the highest consideration. employer — the employer whose premises you work in.
Membership in an electric cooperative which merely vests in the 5. Homeworkers

member a right to vote during the annual meeting becomes too trinal
and insubstantial vis-a-vis the primordial and more important Can homeworkers form a union?
constitutional right of an employee to join a union of his choice.
Besides, the 390 employees of CENECO, some of whom have never It is not specified under the law but according to the Implementing Rules
been members of the cooperative, represent a very small percentage and Department Order No. 05, Series of 1992 issued on February 14,
of the cooperative’s total membership of 44,000. It is inconceivable 1992, homeworkers are classified as industrial workers and they can
how the withdrawal of a negligible number of members could form a union vis a vis their employer. Their employer is the one who
adversely affect the business concerns and operations of CENECO. supplies them with raw materials for the products that they make in their
own home.
4. Minors
Department Order No. 05-92
What is the rule with respect to minors? February 4, 1992
No Minimum Age Requirement SECTION 3. Self-Organization. — Homeworkers shall have the

There is no age requirement for the exercise of the right to self- right to form, join or assist organizations of their own choosing, in
organization. It’s not found in the Constitution, nor in the Labor Code. accordance with law.
There is no age requirement.
6. Kasambahay
Suppose you are a [musician] and you are very talented, and you are
now a soloist in this choir that sings for a fee in weddings, banquets, There is no provision under the Kasambahay Law (R.A. 10361) granting
etc. and you are just five years old. Can you join the union vis a vis your the kasambahay the right to form, join and assist a labor organization
employer? of his own choosing.
First of all, you cannot be an employee because you have to be at least The kasambahay is actually not covered because under the Labor Code,
15 years old. So in that scenario, you are an independent contractor. the right to self-organization belongs to the employees in the industrial,
Your parents must be there to guide you always while you’re working. commercial and agricultural sector. It does not include household.
If you are younger than 15, you can only be engaged to work if your Households are not included in the enumeration.
parents are your employer and you have a prior clearance from the
Department of Labor. Now, if there is a union and that union will be In the Implementing Rules, Rule IV, Sec. 1 [sub-paragraph (j)] granting
beneficial to you, then, with the assistance of your parents, you can be the kasambahay the right to self-organization is ultra vires because the
a member of the union. law itself does not grant the right.
Can you be an officer? 7. Both government and private employee
You cannot, because you are not sui juris — meaning you are not with Suppose you are hybrid — you are a government employee and after
full legal effect in your acts. you work, you also engage in work for a private employer.
I asked the 2nd year in their exam, here is a person in DAPECOL Here’s an example. You are a lawyer in NAPOCOR. But then you
sentenced to RP. But since his crime is not violent, he is allowed to work obtained permission from the office head to be able to teach Criminal
in the leased plantation of TADECO which TADECO leased from Law. Suppose there was a union here for part-time instructors, can you
DAPECOL. Is he entitled to minimum wage? Is he in possession of the join that union?
right to self-organization?
I do not know of any decided case yet, but it would seem there is no
You will find that in the RPC, because the penalty of RP carries with it prohibition against you being a union member for part-time workers if
the accessory penalty of civil interdiction — you cannot enter into any that is a recognized appropriate bargaining unit.
contract, you have lost your parental authority, you cannot make a will.
So, you cannot even enter into an employer-employee relationship. What is different is the case of Oriondo v. COA.
What is the basis of your work there? The basis is punishment as a ADELAIDO ORIONDO v. COA
penalty of the crime for which you have been convicted. There is no G.R. No. 211293, June 04, 2019
illegality there because you cannot enter into any contract as a result of
civil interdiction. Facts (as narrated by Father): The Department of National Defense
and Philippine Tourism Authority decided to form a corporation that
A minor can join a union but cannot be a union officer will administer the Bataan Military Establishment for tourism
So a minor cannot be an officer in the union because an officer in the purposes. Six people who are regular employees of the Philippine
union requires full capacity of his personality. Age can limit the capacity Tourism Authority are seconded to this corporation, to make sure
to act — you cannot sign documents because you are not yet sui juris. that it operates according to the original concept of the Philippine
So you can form a union, be a member but you cannot be an officer. Tourism Auhority.
Again, employees of contractors and sub-contractors can form a union Issue #1: Can they receive bonuses there?
vis a vis their manpower agency because the manpower agency is their
employer. They cannot, however, form a union vis a vis the indirect Held: Remember, it’s a GOCC but without an original charter. Are
they government employees? Because if they are not, they can
receive those bonuses. But the COA comes in and says they cannot requirements of the union. You register it. The moment you are
receive bonuses because they are employees of Philippine Tourism registered, you now have a personality, separate and distinct from the
Authority. And as employees thereof, they are already receiving personalities of the members.
double compensation. They are not allowed to do that, pursuant to
the double compensation prohibition under the Constitution. Where does that personality vest in? Vest in the workers. But it has no
physical reference. Unlike you and me, natural persons we have physical
Issue #2: Can they form a union? reference. We occupy space, we exert weight, we can be seen, we live
and we die. That is a natural person.
They cannot form a union because they are just seconded there, they
are really government employees. Therefore, there is no collective
But a juridical person lies in the will of the State. But its function, its
bargaining there.
effectivity to act its privilege of doing collective bargaining is totally
reliant on the will of the workers. You need to have that distinction. Its
So that’s a different ruling from the GSIS Family Bank case. capacity to act, its role, its legal effectivity in its action dependent on the
workers.
Justice Marvic Leonen, who decided this case, also says that whether
you are a GOCC with or without original charter, COA has jurisdiction
over you and your funds. Disbursements to people which will result in How dependent is it on the workers?
double compensation will be disallowed by the COA pursuant to their
rules and regulations. It is so dependent on the workers that in a meeting duly called for the
purpose with or without cause, with or without wrongdoing, 2/3 of the
No Contracting and Sub-Contracting in the Public Sector general membership of a labor organization can vote it out of existence.
Again, they cannot form a union because they are merely seconded. Is That is by the law. Unions can be voted out of existence by will of the
that contracting and sub-contracting? 2/3 majority of the workers. When it is voted out then the state has no
choice but to cancel its personality.
No, because contracting and sub-contracting happens only in the private
sector, with private entities. I hope you have basic understandings of these concepts. A pedestrian
out there, a simple man who eats three meals a day, he does not have
If it is in the public sector, it is the public sector with private manpower any idea of this. It is only you who can give a difference between
agencies. It cannot be a public sector and also a public sector manpower PERSONALITY and STANDING.
agency. There is no such thing.
What is standing?
I hope you are not confused but that is the nature of the beast in review,
you must do the connections. You are no longer memorizing, you will
remember it more if you can do the connections. Connect it to Remedial The ordinary guy walking around there, a boy or a girl, will say it’s a
position, standing. In a sense, he’s correct. Standing is a position. But
Law, Civil Law, the different sections, books of the Labor Code, from
in law, it is the position to be able to assert a right with validity. If you
Labor Standards to Labor Relations to Termination, etc. The better you
can connect, the deeper your understanding is and the more complete have no standing, you cannot assert a right.
your picture is.
A labor organization that is registered with the DOLE, if it does not obtain
September 17, 2020 Part 1A by Jezza Mariz Alo majority of the valid votes cast in a certification election, its purpose
may be collective bargaining but it is so far away from collective
Labor Organization bargaining that it might as well be another organization. It can only
bargain collectively and assert that right if the will of the majority has
allowed it.
We already begun the discussion on Right to Self-Organization and
Unions.
You may cry to the heavens and say let me bargain, I have the best
The term UNION is generic. It is generic in character because it bargaining skills. Too bad, the law does not allow you to bargain just
because you have the skills. The law allows you to bargain if you have
embraces labor organization and workers association. Both are similar
successfully petition the Regional Office of the DOLE and he has
because they are composed of workers. They could be from the same
workplace or same list of position. pronounced you as SEBA.
But the difference is the association do not do collective bargaining. The SEBA
moment you do collective bargaining then you are a labor organization.
What is SEBA?
Labor organizations are not dedicated solely to or for collective
bargaining. They could also have other purposes. In fact they could A petition to be SEBA, Sole and Exclusive Bargaining Agent. That’s one
assume all purposes of a workers’ organization and still be a labor way by which you can now bargain. You have standing to bargain. You
organization. not only have personality to bargain but you have standing to bargain.
The law simply says that the labor organization is an aggrupation or CERTIFICATION ELECTION
organization of employees which exists in whole or in part for the
purpose of collective bargaining or of dealing with employers concerning Or you can go through certification election (an election through secret
terms and conditions of employment. ballot). And then you receive a MAJORITY OF THE VALID VOTES CAST
and now you are declared as the exclusive bargaining agent of that
The whole purpose is to arrive at a collective bargaining. Precisely appropriate bargaining unit.
because of that purpose, a labor organization is the product of the will
of the workers. Without that, actually you are a person because you are registered but
as to that very crucial event of collective bargaining, you might as well
Another personality of the union or more accurately, labor organization be just any other organization because you are so far away from it. You
is that it is a product of the State. You comply the registration cannot demand collective bargaining. You can shout until you are
hoarse, but you cannot demand collective bargaining by sheer will What happens if the president suddenly gets paralyzed. But he is
power, as a separate and distinct person, you depend on the will of the otherwise competent. His mind is still functioning and he cannot sign,
majority of the valid votes cast. can he tell Medialdea sign it for me? No! he cannot. The president must
put his imprimatur. His own signature whether it be a thumbmark or a
What is the seat of collective bargaining power? legible handwriting witnessed by everybody that he himself and no other
signed that bill into law because that it the requirement in the
constitution. That is another act, which you cannot delegate.
It is in the SOLE and EXCLUSIVE BARAGAINING AGENT. That is the labor
organization that has been elected or voluntarily recognized and hence,
certified by the DOLE. That is the seat of the power to bargain The law grants workers the power to aggregate themselves into one. So
collectively until you are certified as SEBA. You have no power to bargain that as explained by many union leaders kita ka aning tukog kay usa ra
collectively until you are declared as recognized SEBA. You cannot man na siya dali ra na balion, pero kuhaa nang tukog buhata nag silhig,
demand that management sit down with you to hang around the terms higti ang tukog, suwayi ug bali, di ba dili nimo mabali? And they tell the
and conditions of work that would govern everybody that bargaining workers, mao nay union… the labor organization. mao nang
unit. It is the labor organization that has been chosen. nagkahumpong ka kay aron dili ta mabali sa atong agalon. Ang
mamumuo nga nagtindog nag inusara huyang.. ang mga mamumuo nga
nagkatigom kusgan.. dili mabali.. mao nagkatigom ta usa ra atoang
Now, the moment that choice is WITHDRAWN, then you lose that power
kontrata. And now you go to the employer and bargain.. kamo tanan wa
to bargain, has been withdrawn from you. You are no longer that seat
nay representative.. too bad you cannot do it except by representation.
of that power.
Balhin na sa agency. In labor, collective bargaining even though the
word says collective is done by other than the collective… is done by the
Where is that power now? It is not in the people, in the workers. SEBA and only by the SEBA. Not by collective.
They cannot bargain. They must look for another LEGITIMATE LABOR
ORGANIZATION and choose it. Because the essence of collective
Now what happens when the SEBA is not one physical
bargaining is that it is done by representation. Collective bargaining is
individual person? What happens?
done by representation.
It is a juridical person. The labor organization registered is a juridical

The principals which is the appropriate bargaining unit composed of all
person. And juridical persons cannot act by themselves. There is no
these positions occupied by actual warm bodied persons. These
corporation that acts by itself. It needs a natural person to act for and
bargaining unit cannot speak for itself. It must have representation. That
its behalf. What happens? So that SEBA must appoint warm bodies,
is the only contract, which begins by another person doing the contract.
living individuals to represent it as it represents the workers in collective
bargaining.
I’ll bring you back to the principle of AGENCY.
That is why in the list of terminologies. That is enumerated Book 5 Rule
What is the principle of agency? 1 Section 1 Article 219 (J) which says BARGAINING REPRESENTATIVE.
The principle of agency is “If I can do it, then I can ask somebody else There are 2 meanings of bargaining representative, means a (1)
to do it for me because it is not illegal, I can do it, therefore I can ask legitimate labor organization or (2) any officer or agent of such
somebody to do it for me”. organization whether or not employed by the employer.
What is the formality of asking somebody to do it for you? Have you ever wondered why there are 2 kinds of bargaining
representative?
That is in cases of disposition, it becomes a special power of attorney.
You’re selling your property, you as the owner can sell it. If you can sell First, there is the UNION. The legitimate labor organization.
it, you can ask somebody else to do it for you, so you can appoint a
special power of attorney to someone to do it. Ask someone to do it.
Then there are individuals. Any officer, agent of such organization
whether or not employed by the employer.
You’re getting married. The law considers it very important that you
cannot do it through somebody. Is getting married illegal? No!
You can be the representative of the exclusive bargaining agent at the
Everyday people are getting married. It’s the most common thing that
bargaining table even if you are not an employee. Give an example. The
there is and yet you cannot sign a special power of attorney asking
lawyer of the union who sits down in bargaining.
somebody to do and say I do for you because you are out somewhere.
Which means that the law considers it very important that you cannot
delegate to anybody else. You cannot delegate getting married, saying There may be the president of the union. There may be other officers.
I do to somebody else. There is no marriage by proxy. If you still believe But since they are not familiar with the law, they might need a labor
that then, then I think Atty. G will penalize you. You cannot get married lawyer.
through an agent. That’s one of the few acts, which you can do but you
cannot let somebody else do it for you. Is he a bargaining representative? Yes.
Official duty acts like the appointments by the president can be done by Is he the exclusive bargaining agent? No.
the executive secretary because the executive secretary is the alter ego
of the president. So the executive order may say “so and so is now What is he? He only represents the exclusive bargaining agent. He is
appointed as commissioner of the BIR effective on such and such and the necessary agent to actually do the negotiations because the SEBA is
such day, signed Medialdea, Executive Secretary, by order of the just an artificial being. Its personality is created by the will of the State
President”, you can do that. And unless he is challenged by the president given after registration.
that poor guy who was named there and under the signature of Mr.
Medialdea is now the commissioner of the BIR.
The same with the employer. It has to have a representative to do the
bargaining. Normally, it’s the lawyers, it’s the executive vice president
Can the President say to Medialdea, “pirma dinha niya ingna by authority for labor relations. It’s the treasurer.. we have a group. And this group
of the President”? Can he do it? No! By direct provision of the talks to the group of the labor organization and that is how bargaining
Constitution the president can no longer delegate.
is done. Very seldom that you have a president of the corporation who your interest but for somebody else’s interest and yet you are standing
will sit down in bargaining, no employer would do that. Why would no for those who have employer-employee relationship.
employer do that? Because he becomes the position of no retreat. Di na
sya kabalibad. Wa sya dinha muingon man tong nag bargain.. The important thing is, the real party in interest must have an employer-
employee relationship. Their representative, in actual fact, need not
September 17, 2020 Part 1B by Anna Marie Edelyn Altiso have employer-employee relationship.
Refusal to Bargain The ones who come up with the bargaining need not have employer-
employee relationship but the beneficiary must have employer-
Recall: The employer has to have a representative to do the bargaining. employee relationship.
Normally it is the lawyers or the executive vice president for labor
relations, etc. Very seldom do you have a President of the Corporation Kanang ginaingon nila na you cannot bargain because you don’t have
who will sit down in the bargaining. No employer would do that because employer-employee relationship, that is true if you are the real party
he becomes the position of no retreat. beneficiary, you must have employer-employee relationship. But if you
are the negotiator, you are the representative of the exclusive
Di na siya kabalibad. Wa siya dinha muingon man tong mga mag bargaining agent, you need not have employer-employee relationship
bargain, ato ning panguntan on ang Presidente, dad on pa ni namo sa BOTH ON THE SIDE OF MANAGEMENT AND ON THE SIDE OF LABOR.
board. Ang among authority mao ra ning paghatag ug increase
singkwenta (P50) ra kutob. Unya ang gipangayo saysenta (P60), di na The connection between the workers who make up the bargaining unit
ta magkasabot run, manguntana una mi sa taas. and their representative which is the exclusive bargaining agent and the
actual committee that bargains representing the exclusive bargaining
Inig naa ng presidente dinha ingnun kag mangayo mig saysenta. Unya agent. So that is three levels – one on the level of actual negotiation,
muingon kag dili. Ay dili gyud diay, ingnun kag kagahi nimog two on the right to negotiate and three on the beneficiaries for whatever
kasingkasing. Magsininggitay pa mo dira. it is that is negotiated.
Who is the final authority there? (talks about getting married, informing With respect to management, you have management, you also have
your father through your mother so you won’t get rejected directly) their employees who are bargaining for them. Managerial employees.
What’s the definition in 117? on managerial employee? Anyone who
That’s the actual mechanics of bargaining. Each link is covered by a acts for and in behalf of the employer is a managerial employee.
legal principle.
Transcriber’s Note: I could not find a definition of managerial employee
Suppose management is not in favor of the actual representative of the under 117 but in labor relations, managerial employee is defined in Book
exclusive bargaining agent because he is famous for being a lawyer for Five.
being belligerent, hot tempered, being one of those walk-out lawyers
and he has been involved to many negotiations that have ended up in Article 212 (m). “Managerial employee” is one who is vested with
deadlock most of the time resulting into strikes. the powers or prerogatives to lay down and execute management
policies and/or to hire, transfer, suspend, lay-off, recall, discharge,
Supposing harap-harapan na, we do not want to bargain with this assign or discipline employees. Supervisory employees are those who,
particular lawyer present here. Can you find another lawyer? in the interest of the employer, effectively recommend such
managerial actions if the exercise of such authority is not merely
They are beginning negotiations. We are putting down the parameters, routinary or clerical in nature but requires the use of independent
the rules for negotiations. Our request is, we do not want this particular judgment. All employees not falling within any of the above
lawyer. Can that be done? Is it not one of refusal to bargain? definitions are considered rank-and-file employees for purposes of
this Book.
Can the other side determine who the bargaining representative? Or is
that not the exclusive prerogative of the party you are bargaining with? He is although employed, he is in fact the vice president for labor
relations. He sits down and bargains. How about the lawyer? The
Remember, for as long as you continue to bargain that you will lawyer is not in employer-employee relationship with the management.
not bargain, that is not refusal to bargain. What consummate He is an independent contractor. His relationship with the management
it, a take it or leave it choice – that’s refusal to bargain. as the rules of court will say is based on trust and confidence. He can
be terminated once management no longer has confidence with
You say, dili na mi mubalik diri kay kasukaon mi makita ng nawnga na. him/her. He does not need to have employer-employee relationship.
Muingon gani ka ana, wala na, refusal to bargain na. Pero kung naa ka
maglingkod ka dinha unya magtan aw ka niya, unya muingon ka niya, Registration of Unions
pasayloa lang ko nga kada kita nako nimo, makahinumdom ko atong
bargaining nato kaniadto nga dugay kaayo ta naglalis unya mao ra diay That’s where collective bargaining is carried out in that particular
gihapon. Ikaw man to ang nagsugod aning panagbangi ug lalis unya di (inaudible). Before you arrive at that, you have these antecedents. The
gyud ko kadawat sa imong nawong. Kanang imong nawong imo lang antecedent is registration of the union.
inahan ang kadawat ana, kami dili. Maglisod mi. Basta sige lang kag
istorya, dili na refusal to bargain. How many ways can you register the union? There are two ways. Red
letter of the law, you can register it as an independent union
Is not the fate of the parties represented hanging on to that stand of (Article 234) or the federation issues you a local charter.
the bargaining representative? Yes. But that is the seat of bargaining.
It is entrusted to them and it is they who will make or break the Art. 234. Requirements of registration. Any applicant labor
bargaining. The actual people who are sitting there to bargain. organization, association or group of unions or workers shall acquire
legal personality and shall be entitled to the rights and privileges
Take note that employer-employee relationship is not a granted by law to legitimate labor organizations upon issuance of the
determinant as to your authority to bargain. certificate of registration based on the following requirements.
You may be a lawyer; you are not connected because you are an a. Fifty pesos (P50.00) registration fee;
employee. You are just engaged to bargain and you will bargain not for
b. The names of its officers, their addresses, the principal address of laws do not allow the disaffiliation except during the 60-day freedom
the labor organization, the minutes of the organizational meetings period.”
and the list of the workers who participated in such meetings;
Can you disaffiliate? Do you have another federation to affiliate with?
c. The names of all its members comprising at least twenty percent Nothing, you are still looking for one.
(20%) of all the employees in the bargaining unit where it seeks to
operate; (As amended by Executive Order No. 111, December 24, Question: Do you need a federation for the continuance of the CBA?
1986) The CBA was originally signed by the Federation officials who sat down
and negotiated with your employer. That’s why they are the ones
d. If the applicant union has been in existence for one or more years, written down there. You cut off ties with them. What happens to the
copies of its annual financial reports; and CBA? Is the CBA still in effect?
e. Four (4) copies of the constitution and by-laws of the applicant The answer is YES. It is still in effect.
union, minutes of its adoption or ratification, and the list of the
members who participated in it. (As amended by Batas Pambansa Who is the exclusive bargaining agent now? It is still the local who is still
Bilang 130, August 21, 1981) the independent union because he has its own independent registration.
You become a local of that federation. You have personality derived Can you affiliate with a new federation and ask the new federation to
from the personality of that labor federation who is already registered take over what the previous federation left undone? YES, you can.
with the Department of Labor. But your personality when you receive it
as local charter is only for the purpose of filing a Petition for Certification Can the independent labor organization register as such? Can it take
Election. The moment you are elected then you must perfect that over the administration of the CBA by itself and the independent union
personality. You must conduct a meeting now, adopt a constitution- just hires a lawyer to help it administer the CBA? Of course, it can do it.
and-by-laws, file a financial statement with the Department of Labor if
you have existed for more than 1 year and then the Department of Labor Why? Because it has a separate and distinct personality granted by the
will pronounce you as a full-pledged local and labor organization. It is registration certificate issued by the Department of Labor.
not only for the purposes of certification election but also for
representing them in court, collective bargaining, in other proceedings. So, it is a personality created by operation of law. You complied with
the requisites under the general enabling act, the Labor Code which list
Before, you have provisional personality just to file a petition. Kuha down the requirements for the registration for the independent union.
na gani ka ana, you have to apply for the next step to have full You complied with that.
personality. Provisional personality that is true in the civil code and that
is also true with the labor code. Person person ra una, murag murag If you are denied in the registration in spite of complying with the
person, dili pa gyud person. Dili pa kumpleto yet the law already provision, what is your remedy? You file a Petition for Mandamus,
recognizes certain rights. according to the SC.
Now, you are a full person because you are registered as an independent Where do you file that? You file that with the Regular Courts and
labor organization. You had the general organizational meeting. You asking that court to issue an order telling the Med-Arbiter to issue you
wrote down all the people who voted for the provision. You voted for a Certificate of Registration.
the articles of the labor organization and its by-laws. Then you
contributed to the payment of registration fee and you have the election Remember, because it is subject to mandamus, the registration of a
of officers. So, you have an election of officers. You have your list of labor organization is not a discretionary act. It is considered as not
members; you have the voting list adopting the laws and by-laws. discretionary, purely ministerial. Oh na comply ba ni kani na
requirement, o, edi registered na ka, that is ministerial. Kung check
Now, you go to the Department of Labor and you present those papers, check lang, wa na.
paying a registration fee and then the Department of Labor Regional
Office subsequently issues you a certificate of registration. You are now Pero kung discretionary gani, dili mana ma order ug mandamus. (That
a separate and distinct personality. Labor organization. is why you cannot file a petition for mandamus asking for an order
directing at your boyfriend to marry you. Why? Because that is
But then you still feel helpless. And so you go to Federation and you discretionary. Talking about breach of promise to marry.)
say, “can we not be a local for you so you can help us? Your lawyer will
draw up our bargaining proposal. You people know several Collective bargaining, YES! Whether the employer likes it or not, he must
establishments as our employer so you have comparative figures as to sit down. He must negotiate. But be careful, the order is just to sit
how much we can ask by way of wages, increases, etc. You can help us. down. The order is not to agree because the duty to bargain does not
Can we be not your local?” impose a duty to agree to any proposal or make any concession.
And the labor federation issues you a local charter certificate. What is Very subtle. Mulingkod ka lang ug makig-negotiate ka. That is why
that local charter certificate? Does that make you now a provisional muingon ka di gyud ko gusto makig-negotiate nimo. If you just sit down
personality? NO. Because you have an original full-blown personality. to say that you don’t want to negotiate, negotiate by saying that you
You are independently registered. Dili ka na provisional pag hatag ug don’t want to negotiate, you are still negotiating.
local charter certificate sa federation. Kumpleto ka na.
That is why a deadlock although unfortunate is not condemned by the
Let us say in your dealings with the labor federation, the people there Labor Code. It is accepted as a reality. And there are ways to solve the
suddenly noticed what the federation is really after is really the deadlock. You can go to voluntary arbitration. You can go to the
federation not after you or you do not want the federation anymore. Secretary of Labor and make him assume jurisdiction over the labor
dispute. Or you can go on strike. Of course, nobody wants a strike that
You tell the federation, “we want to disaffiliate ourselves from you.” And is why people go to voluntary arbitration or the assumption by the
the federation write back, “You knew from the start that you can only Secretary of Labor.
disaffiliate during the last 60-day freedom period of the CBA. We are still
in the beginning. We are still in the first year of the CBA. You cannot What is the obligation of collective bargaining? The obligation of
disaffiliate.” But you say, “Too bad, we know from jurisprudence that collective bargaining is just to sit down and negotiate.
we can disaffiliate at any time even if your federation’s articles and by-
Very often the SC, even the US SC, the obligation of the collective there is an appropriate bargaining unit that has just gone through a
bargaining is you bring the horse to the edge of the riverside. The river certification election and no union won. What is the result? For one year
is there clear and clean. You bring the horse to the bank of the river from after the time of the results of that certification of election, there
but in the end, it is still the horse who will drink. You cannot drink for can be no certification election petition filed covering that bargaining
the horse. You can only bring the parties to the table, but in the end, unit. Now if during that 1 year period, management succeeds in
the parties, labor and management must come to an agreement. recognizing another union and entering into a CBA and they go to the
regional office of DOLE and say “SEBA petition.” They look through it, it
September 17, 2020 Part 2A by Jay J.L Astillo is true there is union. They go over it, there is only one and they already
have a CBA and it is ratified by the people, so therefore SEBA, this union
There is no such thing as registration of a labor organization that chosen by management is exclusive bargaining agent. Is that correct?
automatically leads to being exclusive bargaining agent in the private The Supreme Court said, NO! The SC said, “that appropriate bargaining
sector. That is true in the public sector under E.O. 180 – once you unit was not unorganized establishment. It had gone through a petition
register and you allege there that you are the only labor organization in for SEBA. There was an election held. And the decision was no-union.
that office and remember, the Department of Labor and not the Civil Why all of a sudden is there now an exclusive bargaining agent, not only
Service. They sent an inspector, they verify you are the only labor a union but an exclusive bargaining agent? That is questionable. That is
organization and there’s nobody else then you are automatically certified why it approved the petition for certification election that was
as the sole and exclusive bargaining representative. subsequently filed and all that…inaudible... That was for naught.
Because it was really clear that it was contrived machination by
Executive Order No. 180 management.
June 1, 1987
Kanang unorganised pareho nag single ba. Unsa mana sya single o
III. Registration of Employee’s Organisation minyo? Wala may bana nagatapadtapd niya, sa ato pa single sya. Is
that clear and convincing evidence that she is single? Daw bi kung minyo
sya unya ang iyang bana wala lng diha.. minyo gyapon sya.
Section 8. Upon approval of the application, a registration certificate
be issued to the organization recognizing it as a legitimate employees'
So you have to be very clear what is an unorganised establishment?
organization with the right to represent its members and undertake
What is an establishment that is organized? Take note that just because
activities to further and defend its interest. The corresponding
there is no exclusive bargaining agent, does not mean that it is
certificates of registration shall be jointly approved by the Chairman of
unorganised. There must be something else. Just because there is no
the Civil Service Commission and Secretary of Labor and Employment.
CBA, does not mean that it is unorganised. Because that case,
***inaudible***
There is something anomalous and wrong in that process. Why?
Because just by the mere fact that you are the only organization does Now, we didn’t take up the rights and condition of membership in a labor
not mean that you should be declared as exclusive bargaining agent. organisation.
Why? Because the right to self-organisation includes the right not to join
in the labor organisation. Nag-inusara, usa ra gud ka association dinha The labor organisation exists for the sole purpose of advancing the fate,
pero ang uban dili man gudto og association, how do you give voice to benefits of those (the individual) within the bargaining unit. That is the
their choice? That is why traditional jurisprudence always says that the purpose of labor organisation. Now, the labor code in order to safeguard
best way to determine the will of the bargaining unit is through a that particular responsibility of the labor organisation, the labor code
certification election. Certification election, the best way to determine. decrees that the officials of the labor organisation has certain rights and
Kung usa ra na dinha, di ka mahadlok mag election kung imo ng tanang responsibilities and many of these rights and responsibilities have
tao. Pero kung dili diay tanan na imong tawo. Ang uban diiay dili gustog something to do with money. Because if you follow the money you know
representation, bisag nag-inusara kapa pildi ka sa certification election. the health and condition of the labor organisation and those whom they
Molutaw ang kung unsay naa sa kasingkasing sa kadaghanan sa mga represent, if you follow the money. That’s why, many rules, let’s say,
trabahante anang collective bargaining unit. “no official or union member shall make any collection unless authorized
by the bylaws of the labor organisation.” Why do they have to put that?
That is why it is very important, the Petition for SEBA, that petition for Normally it is the treasurer that is authorized. Is there a need to disallow
declaration of SEBA is only applicable in unorganized establishment, the others when the authority is given to the treasurer? Mao ng makaingon
moment the establishment is organized, SEBA does not apply. It no ka nga this is overstressing the obvious. You see that? Ngano
longer applies. Remember, establishment is not the material word. It is mangulekta man ang secretary nga naa may treasurer? Why do the
the organized or unorganized bargaining unit. The establishment may rights and conditions of union membership have to specify that, that no
have a union but the bargaining unit applied for, the appropriate officer who is not authorized by the by-laws can collect from the
bargaining unit might not have any history of collective bargaining or employees? It’s because it’s like this, when the union begins its
representation so therefore it is still unorganized. There may already be organisation it’s the organisers ang galihot nga mangulekta sa
a union in another part, let say the supervisors may already have, the gikinahanglang pondo. They asked around and they put it in the atm (di
monthly paid workers may already be in union but the daily paid regular ko sure, inaudible) and that is being used by the union to operate. Now
production workers are still no union. Wa pa dinha jud. They are still the union, the labor organisation has become more structured, they are
unorganised. So you can apply petition for SEBA. But when you apply registered, their officers are elected, they have designated their duties..
for petition for SEBA and the inspector who does his job finds out there What happens? Katong nangulekta sa una nagsige pa man og kolekta
is another union, what does the law say? The law says” immediately the kay ngano man. Naanad naman sila. That is what normally happens.
petition for SEBA becomes and is transformed into a petition for The proactive parties in the labor organisation, they are not elected but
certification election.” There is no substantial doubt as to whether or not they continue to do the collection. That is one of the more common
this organization is or has the agreement or allegiance of the majority irregularities of the union, in fact that is a more common irregularity of
in that bargaining unit. That is only thing that makes the presence of organizations that is made up of less academically prepared people, less
that union questionable. ***last sentence inaudible*** educated people. They don’t give receipts. Why? Because they don’t
have receipts.
Remember what makes an organisation, what makes an employer an
organized establishment? Very very crucial. Muingon ka if it has an So the list of rights and duties of labor organisation, you must issue a
exclusive bargaining agent, it is organized. If it has a standing and receipt for every collection that you make. That is written in the rights
effective CBA, it is an organized establishment. Is it true and correct to and conditions of membership. You have a right to demand a receipt
say, “if there is no exclusive bargaining agent, if there is no CBA it is still and if the receipt is not given that is an irregularity. Bring that up and
unorganized”? Is that correct? Sadly, it is not correct. Why? Because if accuse your officers before the proper forum. Give a chance to the
investigating committee and if it does not move, what is your next step? long as it is operating, they can go in and examine during the last 60
You have already exhausted internal remedies, now you go to the days.
Bureau of Labor Relations and file a complaint with the head arbiter
because that is now an intra-union dispute. This is why a policy under a Memorandum order the secretary of labor
has ordered the labor relations office TO REFRAIN FROM MAKING
September 17, 2020 Part 2B by Neil Dante Baban INSPECTIONS, VISITORIAL EXAMINATIONS DURING THE LAST 60
DAYS . It is because it could be interpreted that the BLR is favoring
Who has the jurisdiction of intra or inter-union dispute? another union who is buying for the certification election and trying to
attack the allegiance of the majority in the bargaining unit. So they
It is the BLR – Bureau of Labor Relations. They have the authority to refrained from exercising their visitorial powers during the last 60 days.
hear and decide intra and inter-union disputes. File ka nila. And the rules
for exempting the exhaustion of internal remedies are almost the same Now before the jinggoy Estrada law, which amended the labor relations.,
as the rules for disregarding administrative remedies which you have if the treasurer is proven to have committed financial irregularities. If
taken up in your administrative law so you know those exceptions. That the financial report is not satisfactory, that is a ground for cancellation
is the same as exhausting the internal procedures before going to the of the union. Now IT IS NO LONGER A GROUND. What is the worst that
med-arbiter for an intra union dispute. could happen? The treasurer can be expelled from the union and once
expelled from the union, there is a union security clause in the CBA, then
The officer which has most duty in the rights and conditions of union you can compel management to terminate the treasurer because he is
members is the Treasurer. The treasurer has the duty to present annual no longer a member of the union and continued membership of a union
reports and to manage the properties of the union. He must make a is a condition for continued employment. You can penalize the treasurer
report. but you cannot cancel the union registration simply because of financial
anomalies committed even by the entire craft of officers. You can only
When does the treasurer make a report? ask that they be terminated.
1. Annually at the general assembly meeting Why the change of ruling?

2. He has to make a report when vacating office. Kung mapulihan na
siya. What is the term for officers of the union? Its 5 years which Why that is now the case, it is because according to the legislative, if
coincides with the term of the CBA. When he is supposed to vacate you cancel the registration of the union, you penalize all of those in the
office he has to submit a report for all sundry to examine. bargaining unit that are represented by the union. What should be done,
3. When a majority of a quorum of a general assembly request that according to the legislature, is to is to penalize those who are directly
he make a general financial report. guilty, the president the vice-president and other officers who went
along in allowing the irregularity to continue. There are some work
Those are the three instance when the treasurer is supposed to make a forces that are very large, and the average union dues is above one
report. day’s pay. That is quite a sum. If you have a thousand workers,
agricultural workers, and lets say that the union dues is 300 pesos a
What if nawala na ang mga kwarta dira? Theft or estafa? It cannot be month, you multiply that by 1000 that is 300,000. You multiply that by
theft why? 12months that is 3.6 million. Dako dako napud na. When you reach the
higher the amount, the greater and more widespread the temptation.
Because he is given the right to possess those funds. Kung janitor pana That is what happens. With this change in the law it is more urgent for
unya nanglungkab sa hunos sa treasurer? Theft na. But if he is a the union members to act on it and to complain because if you don’t,
treasurer he is given the right to possess those funds and he himself these officers will continue. Maybe the secretary should hire more
steals from the funds that is fraud, that is estafa. That violation of examiners to make visitorial powers of investigation because they are
financial obligation can ripen into estafa. Please remember that that is many unions that are sadly, in neglect to their duties.
no longer an intra union dispute. The med-arbiter no longer has
jurisdiction over that. If you file a complaint for estafa, it is the regular You know Pres. Trump, he releases financial aid to corporations and it
courts that has jurisdiction over it because that is already a felony. Bear is in the area now of over 3 trillion USD. Airlines, retail establishments,
in mind that if it’s a labor case, it is interpreted in favor of labor. Now if so many. Financial assistance to corporations. How much did he release
it is a criminal case, in case of doubt it is interpreted in favor of the lousy for assistance to those who are out of job? Its likely over 1 trillion U.S
treasurer because he is the accused now. The quantum of evidence dollars. There are people who cryin out that why is is that the share of
rises, it is now proof beyond reasonable doubt. That is why most unions corporations is greater than the share for labor? Ako hapit nako mutubag
refrain from filing estafa cases against its officers they only file intra pero layo rman ta. Its like there because there is no social justice
corporate dispute because only substantial evidence is required. Lower provision in the constitution. Diri sa ato, the government is already in 9
quantum of proof of that has to be overcome. trillion pesos of debt because of pantawid covid assistance. 9 TRILLION.
How much is the budget for 2021, the propose budget of President
Now there is a prohibition under the labor code that you cannot force a Digong is over 3 trillion pesos for 2021 and 9 trillion has already been
treasurer to give a report and to examine his account within the last 60 spent for financial assistance. Mao na atong build build build murag
days of the collective bargaining agreement. nahilom, niatras na, unsa man imong I build na ug sa sinultihan pa sa
bohol, “wa man gani para sa iro sa iring naba”.
Why is that you cannot file or even inspect the books of the
labor organization within the last 60 days for the CBA. September 24, 2020 Part 1A by Patricia Nicole Balgoa
You cannot do that because you have all the time to do that and why CERTIFICATION ELECTION
do you choose to do that now? When it is usually certification election It is the process of determining if whether an appropriate bargaining
time? Are you trying to cast aspersion on the incumbent set of officers? unit desires representation; and if it so desires, then who their exclusive
You have somebody in mind to replace them and so you maliciously file bargaining agent is. It is NOT an adversarial proceeding. It is a fact
an action to inspect etc. when it’s busy season for campaigning? That is finding proceeding similar to an in rem proceeding. The findings of a
why it is disallowed by the labor code because your motives are suspect. certification election is binding upon all asunder for at least 5 years.
There is an exclusive bargaining agent that is chosen and he enters into
Visitorial Powers of the BLR
contract, and if the CBA is concluded and ratified, then it lasts for 5
Bureau of Labor relations has what they call visitorial powers. They can years. Within that duration no petition for certification election covering
examine the books at any time. They can go to the unions office for as
the same bargaining unit may be entertained by the med arbiter within [1] it is a valid election (majority of all the eligible voters cast their
that 5 years. votes);
[2] there is no choice that receives the majority of the valid votes cast;
It is binding against the whole world. That is why it is a ‘proceeding.’ It and
is not an adversarial proceeding; it is a fact-finding proceeding. The title [3] there are at least 3 choices.
of the proceeding is not XYZ Union v. XYZ Corporation. No. It is not
adversarial. The title shall be, “In re: Certification Election at XYZ The 2 highest will then have an election just between themselves to
Corporation Regular Daily Paid Production Workers .” That is the determine the final choice of the bargaining unit.
title. There is no petitioner, no respondent, no complainant, no
defendant. (ss) "Run-off Election" refers to an election between the labor
unions receiving the two (2) highest number of votes in a
The purpose is to ascertain 2 facts, namely: certification or consent election with three (3) or more choices,
(1) Whether the bargaining unit wants representation; and where such a certified or consent results in none of the three (3)
(2) Who will be the representative of the exclusive bargaining agent. or more choices receiving the majority of the valid votes cast;
provided that the total number of votes for all contending unions
is at least fifty percent (50%) of the number of votes cast.
CONSENT ELECTION
It is a certification election, but all the parties involved therein have no
NOTE: You cannot have a runoff election unless you first had a valid
objection as to the bargaining unit, as to the configuration of the
certification election. Said valid certification election is indecisive
bargaining unit, and as to the day that the certification is to be held and
because no choice received the majority of the valid votes cast.
whether it should be held. All the parties consent to an election.
Runoff election must be distinguished from a rerun election.

The mere consent of the parties, however, does not make it binding.
What the med arbiter will do is gather all the consent of the parties. It
RERUN ELECTION
could be several unions involved there. There could be a petitioner,
A rerun election is a certification election which is held in either of 2
there could be an intervenor 1, intervenor 2, and there could be the
instances:
incumbent-called a FORCED intervenor-then the med arbiter makes that
into his own final order, ie: ‘The following parties have agreed to a
(1) Where the 1st election fails to register the participation of
certification election…’ He then lists them all. ‘In lieu of the agreement,
the majority of the eligible voters of the bargaining unit.
this office then mandates the holding of a certification election the result
of which will be binding upon all the parties as the decision of the
You had an election, everybody agreed, but to be valid a certification
bargaining unit.’
election must have the participation of at least the majority of the valid
voters.
When the med arbiter does that, it makes it official. If it will just be an
agreement between the parties without the intervention of the
TAKE NOTE: They just have to participate. Some of them may cast
department of labor, then it will not have the force of law of the state.
marked ballots, some may cast stray ballots, in which case they will not
That is what is fatally defective with the definition of the implementing
be counted in the canvassing of who the winners are, but they are
rules. What does the implementing rules say?
counted for purposes of determining validity because all you need to do
is participate.
OMNIBUS RULES
IMPLEMENTING THE LABOR CODE
BOOK FIVE When you canvass the votes in a certification election, you have to use
Labor Relations the rules for canvassing votes. Now you no longer do that in our election
RULE I because we vote through the PCOS machines. There is no more stray
DEPARTMENT ORDER NO. 40-03 ballots because you will just press [the machine], isn’t it? So the rules
(Series of 2003) for appreciating ballots is set aside now because you are already voting
AMENDING THE IMPLEMENTING RULES OF BOOK V via a machine. In a certification election, you are still voting by written
OF THE LABOR CODE OF THE PHILIPPINES ballots.
ARTICLE I. The Rules Implementing Book V of the Labor
Code are hereby amended to read as It could be a ballot that is stray because all you have to do is check or
follows: cross out the box the opposite of which has your choice.
RULE I
DEFINITION OF TERMS
Example:
Section 1. Definition of Terms. [ ] No Union
(h) "Certification Election" or "Consent Election" refers to the process [ ] Petitioner
of determining through secret ballot the sole and exclusive [ ] Forced Intervenor (in case of ORGANIZED establishments)
representative of the employees in an appropriate bargaining unit for [ ] Intervenor 1
purposes of collective bargaining or negotiation. A certification [ ] Intervenor 2
election is ordered by the Department, while a consent election is [ ] Intervenor 3
voluntarily agreed upon by the parties, with or without the
intervention by the Department. If you are not a petitioner, you enter the petition by filing a Motion to
Intervene. If you are the incumbent and you did not file a motion at
No, the department of labor and the med arbiter will make the
all, the med arbiter will require you to be a forced intervenor. Why?
agreement the official order of the department.
Because at the end of the 60-day freedom period, if there is no petition
for certification election, you are automatically renewed as the exclusive
RUNOFF ELECTION
bargaining agent at the end of the 60-day freedom period in an
It is an election between the 2 highest choices with the most number of
organized establishment.
votes in a certification election where:
Organized Establishment affiliate to. Now, the med arbiter will ask that if it’s really true, is there
One that already has an exclusive bargaining agent either by: a majority choice to break relationship with the original federation? To
(1) SEBA; or determine that there will be a referendum. ‘Are you willing or do you
(2) Certification Election want to affiliate to a new federation, namely NFL instead of
FFW?’ That will be the only question in the ballot. When the med arbiter
If you are already there, you have administered a collective bargaining finds out about that, then the incumbent federation that signed the
agreement for 5 years, and there is no petition for certification election, bargaining unit and negotiated the original CBA is now out of the picture.
then you are automatically renewed. He has now been changed and the new federation is substituted in the
place of the disaffiliated from federation. You will know that by a
The incumbent is normally named as ‘forced’ intervenor. Then you have referendum.
intervenor 1, intervenor 2, and so on. Just looking at the order to hold
a certification election, because it contains all the parties involved Sometimes the med arbiter will no longer call for a referendum when it
therein, you will know whether that bargaining unit is organized or is so obvious. When everybody is already up in arms and there is nobody
unorganized. If it is unorganized, you do not have a forced intervenor. in the bargaining unit is defending the old federation, then he/she will
not even call the referendum anymore.
Example: The med arbiter calls for a certification election. The date has
been set, the employees are told to vote, but then the total number of Q: What happens when there is a new federation which the local now
those who cast the votes do not even reach 50% of the eligible voters. affiliates after having disaffiliated from the signatory federation?
A: What happens is the new federation takes the place of the old. That
Q: What makes a certification election valid? is called the Substitutionary Doctrine.
A: Majority of all the eligible voters.
BENGUET CONSOLIDATED, INC. v. BCI EMPLOYEES, ET. AL
Q: What is the majority? G.R. No. L-24711, Apr 30, 1968
A: 50% of all the eligible voters PLUS one. If that is not achieved, the
election that took place is not a valid certification election and therefor Facts: On June 23, 1959, the Benguet-Balatoc Workers Union
you do not have to canvass the votings, so the med arbiter will set (“BBWU”), for and in behalf of all Benguet Consolidated, Inc
another date for election. That is called by the implementing rules as (BENGUET) employees in its mines and milling establishment located
at Balatoc, Antamok and Acupan, Mt. Province, entered into a
rerun election.
Collective Bargaining Contract (CONTRACT) with BENGUET. The
CONTRACT was stipulated to be effective for a period of 4-1/2 years,
FATHER’S TIP: A way to remember that is that the name is not or from June 23, 1959 to December 23, 1963. It likewise embodied
appropriate. Because when you say ‘rerun’ election, balikon nimo ang a No-Strike, No-Lockout clause.
election. Di man ka mobalik ana kay katong niaging election, dili man to
election. That was no election. 3 years later, or on April 6, 1962, a certification election was
conducted by the Department of Labor among all the rank and file
Again, the implementing rules uses the term ‘rerun election’ for an employees of BENGUET in the same collective bargaining units. BCI
election held after the first election which turned out to be invalid EMPLOYEES & WORKERS UNION (UNION) obtained more than 50%
because the election failed to register the participation of at least the of the total number of votes, defeating BBWU. The Court of Industrial
majority of the eligible voters of the bargaining unit. Relations certified the UNION as the sole and exclusive collective
bargaining agent of all BENGUET employees as regards rates of pay,
(2) When there is a tie between 2 choices. wages, hours of work and such other terms and conditions of
employment allowed them by law or contract.
The implementing rules say, the parties can either agree to toss coin or
Later on, the UNION filed a notice of strike against BENGUET. UNION
to hold another election. members who were BENGUET employees in the mining camps at
Acupan, Antamok and Balatoc, went on strike. The strike was
So, another election is held between the 2 choices that registered a tie. attended by violence, some of the workers and executives of the
BENGUET were prevented from entering the premises and some of
Normally, med arbiters do not like holding a rerun election when there the properties of the BENGUET were damaged as a result of the
is a tie. Why? Because it is so expensive. strike. Eventually, the parties agreed to end the dispute. BENGUET
and UNION executed the AGREEMENT. PAFLU placed its conformity
REFERENDUM thereto. About a year later or on January 29, 1964, a collective
It is NOT a certification election. It is a determination whether those in bargaining contract was finally executed between UNION-PAFLU and
the bargaining unit which constitute the local of a labor federation will BENGUET.
want to disaffiliate from that federation to another federation.
Meanwhile, BENGUET sued UNION, PAFLU and their Presidents to
recover the amount the former incurred for the repair of the
Suppose there is a widespread dissatisfaction against their exclusive
damaged properties resulting from the strike. BENGUET also argued
bargaining agent and it still within the 5-year period, there is still a CBA. that the UNION violated the CONTRACT which has a stipulation not
Why are they dissatisfied? Because the federation officials have to strike during the effectivity thereof.
practically abandoned the bargaining unit. They go to management and
say, ‘you advance us the union dues for 5 years and we will leave and Defendants unions and their presidents defended that: (1) they were
let the local survived by itself, you will have no problem with us.’ Why not bound by the CONTRACT which BBWU, the defeated union, had
did they get the advance of the union dues? Because they want to work executed with BENGUET; (2) the strike was due, among others, to
in a bigger workplace and try to wield the certification election there and unfair labor practices of BENGUET; and (3) the strike was lawful and
you have to invest, that’s why they want to advance. So, they in the exercise of the legitimate rights of UNION-PAFLU under
abandoned the bargaining unit. Pretty soon, the bargaining unit is Republic Act 875.
dissatisfied, they are asking for their federation leasers, but they cannot
be seen so they rebelled and are saying that they will no longer affiliate
themselves with the said federation and will find another federation to
The trial court dismissed the complaint on the ground that the Everything binding on a duly authorized agent, acting as such, is
CONTRACT, particularly the No-Strike clause, did not bind binding on the principal; not vice-versa, unless there is mutual
defendants. BENGUET interposed the present appeal. agency, or unless the agent expressly binds himself to the party with
whom he contracts. Here, it was the previous agent who expressly
Issue: Did the Collective Bargaining Contract executed between bound itself to the other party, BENGUET. UNION, the new agent,
Benguet and BBWU on June 23, 1959 and effective until December did not assume this undertaking of BBWU.
23, 1963 automatically bind UNION-PAFLU upon its certification, on
August 18, 1962, as sole bargaining representative of all BENGUET We do not say it is a new certified collective bargaining agent. No. We
employees? do not say there is a new certified CBA. It is the local that is the main
party-in-interest. The federation is just an agent of the local because the
Held: NO. BENGUET erroneously invokes the so-called “Doctrine of local is the main party-in-interest. The local is the exclusive bargaining
Substitution” referred to in General Maritime Stevedore’s Union v.
agent, but it can have another agent to help it. The agent is eligible to
South Sea Shipping Lines where it was ruled that:
have another agent to help it.
“We also hold that where the bargaining contract is to run for more
than two years, the principle of substitution may well be adopted and Q: What is the rule in agency? Can an agent appoint, in his stead,
enforced by the CIR to the effect that after two years of the life of a another agent?
bargaining agreement, a certification election may be allowed by the A: NO. Unless you have the power of substituting another agent which
CIR, that if a bargaining agent other than the union or organization is in the special power of attorney, with all powers of substitution, you
that executed the contract, is elected, said new agent would have to cannot delegate the power which has been delegated to you. Potestas
respect said contract, but that it may bargain with the management delegata non potest delegari. Power that has been delegated cannot
for the shortening of the life of the contract if it considers it too long, in turn be delegated by the delegate. Potestas means power. Potest is
or refuse to renew the contract pursuant to an automatic renewal the English verb ‘to be.’ Delegated power cannot be further delegated
clause.” by the delegate. It is only the principal who will delegate the power and
grant the power to the delegate to delegate another agent. But if he
BENGUET’s reliance upon the Principle of Substitution is totally
does give that power, the mere delegation of the power does not grant
misplaced. This principle, formulated by the NLRB as its initial
the delegate the further power to delegate that delegated power. [Yes
compromise solution to the problem facing it when there occurs a
shift in employees’ union allegiance after the execution of a po, opo, wanmelyon times jud gi mention ni father ang delegate 😊]
bargaining contract with their employer, merely states that even
during the effectivity of a collective bargaining agreement Normally in referendums, the local actively seeks a new federation
executed between employer and employees thru their because he does not have his own registration. He is a legitimate labor
agent, the employees can change said agent but the contract federation because the federation has issued him a charter certificate.
continues to bind them up to its expiration date. They may If he severs connection with the federation, he ceases to have
bargain however for the shortening of said expiration date. personality. therefore, he has to affiliate himself to another federation
that is a legitimate labor organization. In that case, he does not lose
In formulating the “substitutionary” doctrine, the only personality in administering the collective bargaining unit.
consideration involved was the employees‘ (principal)
interest in the existing bargaining agreement. The agent’s
September 24, 2020 Part 1B by Ingrid Chua
(union) interest never entered the picture. The majority of
the employees, as an entity under the statute, is the true
In that case, he does not lose personality in administering the collective
party in interest to the contract, holding rights through the
bargaining.
agency of the union representative. Thus, any exclusive interest
claimed by the agent is defeasible at the will of the principal. The
Substitution
“substitutionary” doctrine only provides that the employees cannot
What is the effect of substitution?
revoke the validly executed collective bargaining contract with their
The old agent of the exclusive bargaining agent, the old federation, can
employer by the simple expedient of changing their bargaining agent.
no longer collect union dues even if the CBA says that this goes for 5
And it is in the light of this that the phrase “said new agent would
years.
have to respect said contract” must be understood. It only means
that the employees, thru their new bargaining agent, cannot renege
The federation says: “ we have the right to union dues”
on their collective bargaining contract, except of course to negotiate
The SC says: “the right to union dues ceases the moment you are no
with management for the shortening thereof.
longer the exclusive bargaining agent. Dues is owing to those who have
the status of exclusive bargaining agent”
The “substitutionary” doctrine cannot be invoked to support the
contention that a newly certified collective bargaining agent
If you are no longer the exclusive bargaining agent because there is
automatically assumes all the personal undertakings — like the no-
another federation to which the local has affiliated itself, you cease to
strike stipulation here — in the collective bargaining agreement made
be the exclusive bargaining agent. But this new federation is not bound
by the deposed union. When BBWU bound itself and its officers not
to comply with the personal provisions agreed upon by the previous
to strike, it could not have validly bound also all the other rival unions
exclusive bargaining agent.
existing in the bargaining units in question. BBWU was the agent of
the employees, not of the other unions which possess distinct
Ex. If they signed a no-strike clause, the new federation, which is now
personalities.
the exclusive bargaining agent, can go on strike even if that is present
in the CBA.
UNION, as the newly certified bargaining agent, could always
voluntarily assume all the personal undertakings made by the
So that is a problem. The new federation is still bound in the terms and
displaced agent. But as the lower court found, there was no showing
conditions that are written out in the CBA. But, it can negotiate for the
at all that, prior to the strike, UNION formally adopted the existing
shortening of the agreement because it might introduce some changes
CONTRACT as its own and assumed all the liabilities imposed by the
as the new exclusive bargaining agent.
same upon BBWU. Defendants were neither signatories nor
participants in the CONTRACT.
Does management have the obligation to accede to the request of the indirect affiliation of supervisors and rank-and-file employees with one
new federation to negotiate again another CBA and put an end to the labor organization; that there would be emerging of two bargaining
existing CBA? units; and that the respondent union will loose its independence because
it becomes an alter ego of the federation.
Management has the freedom to accept that and go thru negotiation or
to go together, thus ignore it, and continue. In which case, he has a Liberty Cotton Workers Union v Liberty Cotton Mills Inc.: The
union with him that may go on strike at anytime because it is not bound locals are separate and distinct units primarily designed to secure and
by the personal clauses in the existing CBA. maintain the equality of bargaining power between the employer and
their employee-member in the economic struggle for the fruits of the
What are the effects of the union becoming a local or chapter joint productive effort of labor and capital. These associations are
of a new federation? consensual entities capable of entering into such legal relations with
their members. The essential purpose was the affiliation of the local
1. If the local is an independently registered union, it does not unions into a common enterprise to increase by collective action the
lose its independent legal personality because there is no such common bargaining power in respect of the terms and conditions of
provision in the labor code. That is in the case of Adamson labor. Yet the locals remained the basic units of association; free to
v CIR 217 SCRA 268 (1984) serve their own and the common-interest of all, subject to the restraints
imposed by the Constitution and By-laws of the Association; and free
ADAMSON & ADAMSON v. CIR AND ADAMSON & ADAMSON also to renounce the affiliation for mutual welfare upon the terms laid
SUPERVISORY UNION (FFW) down in the agreement which brought it into existence.
217 SCRA 268 (1984)
CAB: The respondent supervisor union and the salesman union have
Facts: Petitioner filed this petition to set aside orders of the CIR holding their own respective constitutions and by-laws. They are separately and
that the PR Union can legally represent supervisors of petitioner independently registered of each other. Both sent their separate
corporation notwithstanding the affiliation of the rank and file union of proposals for collective bar agreements with their employer. There could
the same company with the same labor federation. be no employer influence on rank-and-file organizational activities nor
their could be any rank and file influence on the supervisory function of
Respondent supervisory union informed petitioner about its having the supervisors because of the representation sought to be proscribed.
organized on the same date the salesman union. Later, the rank and file
employees formed their own 2. The local becomes subject to the rules and regulations of the
new federation. The new federation has a right to investigate
The petitioner argues that the affiliation of the respondent supervisors and expel members of the local on the basis of the constitution
union, the salesman union and the rank and file union violates Sec 3 of and by-laws of the new federation. We have the case of Villar
the Industrial Peace Act because: v Inciong 121 SCRA 444 (1983)
1) It results in the indirect affiliation of supervisors and rank and file with VILLAR v. INCIONG
one labor organization 121 SCRA 444 (1983)
2) Since the supervisory union and the non-supervisors union are
governed by the same constitution and by-laws of the national Facts: Petitioners were members of the Amigo Employees Union-
federation, in effect, there is but one union PAFLU, at the time of the present dispute, was the existing bargaining
3) The respondent union losing it it’s independence because it becomes agent of the employees in private respondent Amigo Manufacturing, Inc.
an alter ego of the federation (hereinafter referred to as Company). The Company and the Amigo
4) If affiliation will be allowed, this would violate the requirement of Employees Union-PAFLU had a collective bargaining agreement
separateness of bar units under Sec 12 of the same Act because only governing their labor relations, which agreement was then about to
one union will in fact represent both supervisor and rank and file ees of expire on February 28, 1977.
the petitioner
On February 14, 1977, the Amigo Employees Union- PAFLU called a
The respondent argued that: special meeting of its general membership. A Resolution was thereby
unanimously approved which called for the investigation by the PAFLU
1) The supervisory employees may validly join an organization of the national president, pursuant to the constitution and by-laws of the
rank and file employees so long as the said rank and file ees are not Federation, of all of the petitioners and one Felipe Manlapao, for
under their supervision "continuously maligning, libelling and slandering not only the incumbent
2) The members of respondent supervisory union is not composed of officers but even the union itself and the federation;" spreading 'false
the sales supervisors, therefore the salesmen of the company are not propaganda' that the union officers were 'merely appointees of the
under the supervision of the members of respondent union management', and for causing divisiveness in the union.
3) Even if the salesmen are under the supervision of the members of
the respondent union, the prohibition would not apply because the Pursuant to the Resolution approved by the Amigo Employees Union-
salesmen and supervisory employees of the company have distinct labor PAFLU, the PAFLU, through its national President, formed a Trial
organizations and separate CBA proposals. Committee to investigate the local union's charges against the
4) The respective labor organizations, not the FFW, will represent the petitioners for acts of disloyalty inimical to the interest of the local union,
members in the negotiations and the signing as well as directing the Trial Committee to subpoena the complainants
(Amigo Employees Union-PAFLU) and the respondents (herein
The CIR sustained the eligibility of the supervisory union. petitioners) for investigation, to conduct the said investigation and to
submit its findings and recommendations for appropriate action.
Issue: WON a supervisor’s union may affiliate with a federation with
which unions of rank and file employees of the same employer are also Petitioners were summoned to appear before the PAFLU Trial Committee
affiliated for the aforestated investigation of the charges filed against them by the
Amigo Employees Union-PAFLU. Petitioners, however, did not attend but
Ruling: Yes requested for a "Bill of Particulars" of the charges. The charges are the
ff:
We find without merit the contentions of petitioner that if affiliation will
be allowed, only one union will in fact represent both supervisors and
rank-and-file employees of the petitioner; that there would be an
1) Disaffiliating from PAFLU and affiliating with the Federation of Unions the subordinate union, and between the members of the subordinate
of Rizal (FUR). union inter se.
2) Filling petition for certification election with the Bureau of Labor
Relations and authorizing a certain Dolores Villar as your authorized
It is undisputable that oppositors were members of the Amigo
representative without the official sanction of the mother Federation-
Employees Union at the time that said union affiliated with PAFLU;
PAFLU.
hence, under the afore-quoted principle, oppositors are bound by the
3) Maligning, libelling and slandering the incumbent officers of the union
laws and regulations of PAFLU.
as well as of the PAFLU Federation.
4) Spreading false propaganda among members of the Amigo
Employees Union-PAFLU that the incumbent union officers are 'merely PAFLU, therefore, correctly and legally acted when, pursuant to its
appointees' of the management. Constitution and By-Laws, it conducted and proceeded with the
5) By sowing divisiveness instead of togetherness among members of investigation of the charges against the oppositors and found them
the Amigo Employees Union-PAFLU. guilty of acts prejudicial and inimical to the interests of the Amigo
6) By conduct unbecoming as members of the Amigo Employees Union- Employees Union- PAFLU
PAFLU which is highly prejudicial to the union as well as to the PAFLU
Federation.
Inherent in every labor union, or any organization for that matter, is the
right of self-preservation. When members of a labor union, therefore,
Not recognizing PAFLU's jurisdiction over their case, petitioners again
sow the seeds of dissension and strife within the union; when they seek
refused to participate in the investigation rescheduled and conducted on
the disintegration and destruction of the very union to which they
March 9, 1979. Instead, petitioners merely appeared to file their Answer
belong, they thereby forfeit their rights to remain as members of the
to the charges and moved for a dismissal.
union which they seek to destroy. Prudence and equity, as well as the
dictates of law and justice, therefore, compelling mandate the adoption
Petitioners contend in their Answer that neither the disaffiliation of the
by the labor union of such corrective and remedial measures in keeping
Amigo Employees Union from PAFLU nor the act of filing the petition for
with its laws and regulations, for its preservation and continued
certification election constitute disloyalty as these are in the exercise of
existence; lest by its folly and inaction, the labor union crumble and fall.
their constitutional right to self-organization. They further contended
that PAFLU was without jurisdiction to investigate their case since the
charges, being intra-union problems within the Amigo Employees Union- Correctly and legally, therefore, the PAFLU acted when, after proper
PAFLU, should be conducted pursuant to the provisions of Article XI, investigation and finding of guilt, it decided to remove the oppositors
Sections 2, 3, 4 and 5 of the local union's constitution and by-laws. from the list of members of the Amigo Employees Union-PAFLU, and
thereafter, recommended to the Amigo Manufacturing, Inc.; the
The PAFLU President, on March 15, 1977, rendered a decision finding termination of the employment of the oppositors.
the petitioners guilty of the charges and expelled petitioners from the
union and requested management to terminate them. The company 3. The contractual relation between local and federation from
applied for a clearance to terminate pursuant to the union security the CBA point of view, is that of principal and agent. The local
clause. The clearance was granted by the DOLE RO No.4 and the is the principal the federation is the agent. The real party in
Minister of Labor Inciong the CBA is the local.
Issue: WON the termination is proper Dako maning federation, gamay ra ang local. But the law says
that it is the local that is the principal. It’s the federation that
Ruling: Yes is the agent. Suluguon siya sa local. But what happens in
actual practice, because the locals are unschooled, ignoran,
Petitioners became non-union members upon their expulsion from the no training, no technical knowledge in labor relations, it is the
general membership of the Amigo Employees Union-PAFLU on March federation that will dictate to it. According to the SC in Villar
15, 1977 pursuant to the Decision of the PAFLU national president. v Inciong, peace v PICC, tropical hut v tropical hut employees
(1990), the federation is the agent, the local is the principal.
PAFLU had the authority to investigate petitioners on the charges filed
by their co-employees in the local union and after finding them guilty as 4. A local may, contrary to the constitution and by-laws which
charged, to expel them from the roll of membership of the Amigo allows disaffiliation only during the 60-day freedom period,
Employees Union-PAFLU is clear under the constitution of the PAFLU to disaffiliate from the federation at anytime, provided such act
which the local union was affiliated. And pursuant to the security clause is approved by the majority of all in the bargaining unit.
of the new CBA, reiterating the same clause in the old CBA, PAFLU was Associated Workers v NLRC 188 SCRA 123 (1990)
justified in applying said security clause. We find no abuse of discretion
on the part of the OIC of Regional Office No. 4 in upholding the validity ASSOCIATED WORKERS v. NLRC
of the expulsion and on the part of the respondent Deputy Minister of 188 SCRA 123 (1990)
Labor in sustaining the same.
Facts: Petitioner Associated Workers Union ("AWU")—PTGWO, the
The SC also affirmed the OIC’s decision. The pertinent portion of which then bargaining representative of the dockworkers at South Harbor, Port
reads as follows: Area, Manila, filed a notice of strike against Metro Port Service, Inc.
("Metro"). It was certified to the NLRC for compulsory arbitration.
Recognized and salutary is the principle that when a labor union affiliates
with a mother union, it becomes bound by the laws and regulations of One of the demands raised by AWU was that Metro terminate the
the parent organization. employment of respondents Adriano Yumul and ten (10) others
(individual respondents), for having organized, on 26 October 1984, the
When a labor union affiliates with a parent organization or mother union, Associated Workers Union in Metroport ("AWUM"). A compromise
or accepts a charter from a superior body, it becomes subject to the agreement was later arrived between AWU and METRO and agreed
laws of the superior body under whose authority the local union that the individual respondents be preventively suspended.
functions. The constitution, by-laws and rules of the parent body,
together with the charter it issues pursuant thereto to the subordinate The individual respondents filed a complaint against METRO and AWU.
union, constitute an enforceable contract between the parent body and
NLRC: AWU was a national union, and that individual respondents have BENGUET CONSOLIDATED v. BCI EMPLOYEES
the right to organize themselves into a local chapter thereof, the 23 SCRA 465 (1968)
formation of which was a protected activity and could not be considered
as disloyalty, held the suspension or dismissal of individual respondents Facts: The contending parties in this case —Benguet Consolidated, Inc.,
as illegal ("BENGUET") on the one hand, and on the other, BCI Employees &
Workers Union ("UNION") and the Philippine Association of Free Labor
Ruling: While it is true that AWUM as a local union, being an entity Unions ("PAFLU")
separate and distinct from AWU, is free to serve the interest of all its
members and enjoys the freedom to disaffiliate, such right to disaffiliate The Benguet-Balatoc Workers Union ("BBWU"), for and in behalf of all
may be exercised, and is thus considered a protected labor activity, only BENGUET employees entered into a Collective Bargaining Contract. Said
when warranted by circumstances. CONTRACT became effective for a period of four and a half (4-½) years,
or from June 23, 1959 to December 23, 1963. It likewise embodied a
Generally, a labor union may disaffiliate from the mother union to form No-Strike, No-Lockout clause.
a local or independent union only during the 60-day freedom
period immediately preceding the expiration of the CBA. Even On April 6, 1962, a certification election was conducted by the
before the onset of the freedom period (and despite the closed-shop Department of Labor among all the rank and file employees of
provision in the CBA between the mother union and management) BENGUET in the same collective bargaining units. UNION obtained
disaffiliation may still be carried out, but such disaffiliation must be more than 50% of the total number of votes, defeating BBWU, and
effected by a majority of the members in the bargaining accordingly, the Court of Industrial Relations, on August 18, 1962,
unit. This happens when there is a substantial shift in allegiance on the certified UNION as the sole and exclusive collective bargaining agent
part of the majority of the members of the union. In such a case, of all BENGUET employees.
however, the CBA continues to bind the members of the new or
disaffiliated and independent union up to the CBA's expiration date.8 The UNION staged a strike. As a result of the strike, allegedly,
BENGUET incurred expenses so it sued UNION, PAFLU, and their
respective presidents on the ground that said defendants breached their
CAB: The record does not show that individual respondents had
disaffiliated during the freedom period. The record does, however,
undertaking in the existing CONTRACT not to strike during the effectivity
thereof. In addition, BENGUET invoked the substitutionary doctrine and
show that only eleven (11) members of AWU (individual respondents)
that the UNION is bound by the no-strike clause pursuant to the law
had decided to disaffiliate from AWU and form AWUM.
on agency
Respondent Metro had about 4,000 employees, and around 2,000 of Defendants argued that they were not bound by the CONTRACT which
these were members of AWU. It is evident that individual BBWU, the defeated union, had executed with BENGUET.
respondents had failed to muster the necessary majority in
order to justify their disaffiliation. In fact, it was only on 5 Issue: Did the Collective Bargaining Contract executed between
December 1985 that individual respondents were finally able to BENGUET and BBWU on June 23, 1959 and effective until December 23,
register an independent union called Metroport Workers Union 1963 automatically bind UNION-PAFLU upon its certification, on August
[MWU]. Even then, in the absence of allegation by AWUM 18, 1962, as sole bargaining representative of all BENGUET employees?
[MWU] of the exact number of its members, the Court
presumes that only twenty percent [20%] of the employees of Ruling: In formulating the "substitutionary" doctrine, the only
Metro had joined MWU). Thus, in the referendum held on 7 consideration involved was the employees' interest in the existing
January 1985 at the PTGWO compound (where representatives bargaining agreement. The agent's interest never entered the picture.
of the Ministry of Labor and Employment were present) to
determine whether individual respondents should be expelled Stated otherwise, the "substitutionary" doctrine only provides that the
from AWU, 1,229 members (out of 1,695 members present) employees cannot revoke the validly executed collective bargaining
voted for expulsion of individual respondents. contract with their employer by the simple expedient of changing their
bargaining agent. And it is in the light of this that the phrase "said new
The individual respondents here have failed to present proof of their agent would have to respect said contract" must be understood. It only
allegation that the 1,695 members of AWU were not employees of means that the employees, thru their new bargaining agent, cannot
respondent Metro alone; the Court therefore presumes that those who renege on their collective bargaining contract, except of course to
voted for their expulsion were bona fide employees of respondent negotiate with management for the shortening thereof.
Metro.
CAB: The "substitutionary" doctrine, therefore, cannot be invoked to
support the contention that a newly certified collective bargaining agent
Moreover, individual respondents failed to allege that their expulsion for automatically assumes all the personal undertakings — like the no-strike
disloyalty violated AWU's constitution and by-laws. In sum, the stipulation here — in the collective bargaining agreement made by the
attempted disaffiliation of the eleven (11) private respondents from the deposed union. When BBWU bound itself and its officers not to strike,
petitioner mother union and the effort to organize either a new local of it could not have validly bound also all the other rival unions existing in
the mother union or an entirely new and separate union, did not, under the bargaining units in question. BBWU was the agent of the
the circumstances of this case, constitute protected activities of the employees, not of the other unions which possess distinct personalities.
eleven (11) individual respondents. To consider UNION contractually bound to the no-strike stipulation
would therefore violate the legal maxim that res inter alios nec prodest
No matter what is said in the by-laws and articles of the labor federation, nec nocet.
the local can disaffiliate at anytime. If it does so, the obligation to check-
off federation dues terminates with a valid disaffiliation. Of course, UNION, as the newly certified bargaining agent, could
always voluntarily assume all the personal undertakings made by the
The SC says “bisag ang federation pay ni pirma sa CBA, it is no longer a displaced agent. But as the lower court found, there was no showing at
party there, it is already the new federation.” all that, prior to the strike, UNION formally adopted the existing
CONTRACT as its own and assumed all the liability ties imposed by the
The substitutionary doctrine takes effect. The new federation substitutes same upon BBWU.
the old federation. We have Benguet Consolidated v BCI
Employees 23 SCRA 465 (1968) Everything binding on a duly authorized agent, acting as such, is binding
on the principal; not vice-versa, unless there is a mutual agency, or
unless the agent expressly binds himself to the party with whom he So much so that it remained passive for 3 years. By the 3rd year, officers
contracts of ALU went to the university administration office and presented a
bargaining proposal. It said “Kami nay mo take-over sa bargaining.”
CAB: Here, it was the previous agent who expressly bound itself to the
other party, BENGUET. UNION, the new agent, did not assume this Now management could have easily said “Sorry ALU, I don’t know you
undertaking of BBWU. from Adam. I only know the independent union of Association of faculty
members of Divine Word University of Tacloban. I don’t want to sit down
5. Local unions, not the federation, is liable for the damages with you because I’m not sure.”
arising from an illegal strike even if it was the federation who
filed the notice of strike. Kanang ALU, is the majority representation status agent of the
bargaining unit, but it has no proof of majority representation. It has no
The real party in interest is the local. That is held in the case proof. Unsaon man nila pag prove? Muingon sila nga nag referendum
of Filipino Pipe Corporation v NLRC Nov 16, 1999. na man unya kamiy gipili, ni affiliate na man sila namo?
Terminologies and Sequence of Events So management could’ve told ALU to go home because they cannot
bargain with ALU. But what did management do? They said OK, let’s set
When does collective bargaining begin? up negotiations on such a day, lets meet and negotiate.
Collective bargaining as a duty begins with:
1. When there is an exclusive bargaining agent that has been Now when that day came, management showed up, but also filed a
certified or declared so after a SEBA petition. The status of petition for certification election. According to management, we have
the exclusive bargaining agent. the right to file a petition because the Labor Code says, one of the rare
2. Possession of proof of majority representation. instances when management can file a petition for certification election
is when it is requested to bargain by an unknown force like ALU. Ang
There is a difference between the two. You are the exclusive bargaining kadaot lang kay niingon na siya na “manglingkod ta ALU kay magsabot
agent but you cannot produce proof of majority representation. You nata sa CBA.” So as the american-indians say: “management speaks
might be majority among the workers, but you do not have proof. You with a fork tongue.” Doble kara kung sa ato.
cannot compel the management to sit down with you and bargain.
ISSUE:
3. Exclusive bargaining agent writes down its bargaining
proposals and sends or transmits it to the employer. Ruling: Management is in bad faith bargaining. It commits unfair labor
practice. Management eventually lost even the merits of the case. Nag
Once the 3 are complied with, the duty to bargain begins strike na man ang mga workers. Pag strike sa faculty, dagan ang
management sa Sec of Labor (kay Sanchez) and assumed jurisdiction
Who has the duty? over the dispute. So tua na sa Sec of Labor.
Normally, the employer has the duty.
From the FT of the case:
Who has the right? A thorough study of the records reveals that there was no "reasonable
Normally, the exclusive bargaining agent effort at good faith bargaining" specially on the part of the University.
Its indifferent attitude towards collective bargaining inevitably resulted
Why is it structured that way? Will it ever happen that it will be in the failure of the parties to arrive at an agreement.
management who will produce the bargaining proposal and give it to
the union. Mahitabo ba gud na? if that happens, na gago ang The DWUEU was not entirely blameless in the matter of the delay in the
management. bargaining process. The fact remains that said union remained passive
for three years. The records do not show that during this three-year
If it is an unorganized establishment, and there is an exclusive period, it exerted any effort to pursue collective bargaining as a means
bargaining agent, the existing status of relationship is individual of attaining better terms of employment.
contracts of employment. Why would management be in a hurry to do
away with individual contracts of employment and go to collective It was only after its affiliation with the ALU that the same union, through
bargaining when individual contracts of employment are largely the ALU Director for Operations, requested an "initial conference" for
contracts of adhesion? Its management maoy nagbutang sa tanang the purpose of collective bargaining. Under the circumstances, the
terms and conditions, nganong magdali man siya to jettison out this agreement of May 10, 1988 may as well be considered the written notice
individual contracts of employment. Walay management na ingon ana. to bargain referred to in the aforequoted Art. 250(a) of the Labor Code,
Pa ugat ra nang management, maghulat. That is what happen in Divine which thereby set into motion the machinery for collective bargaining,
Word University of Tacloban v Sanchez. as in fact, on May 19, 1988, DWUEU-ALU submitted its collective
bargaining proposals.
DIVINE WORD UNIVERSITY OF TACLOBAN v. SEC OF LABOR
AND DIVINE WORD UNIVERSITY EMPLOYEES UNION-ALU As the Court earlier observed, there has not been a "reasonable effort
(DWUEU-ALU) at good faith bargaining" on the part of the University. While DWUEU-
G.R. No. 9191, September 11, 1992 ALU was opening all possible avenues for the conclusion of an
agreement, the record is replete with evidence on the University’s
Facts (As narrated by father): There was a certification election of the reluctance and thinly disguised refusal to bargain with the duly certified
faculty of Divine Word. The association of faculty members of Divine bargaining agent, such that the inescapable conclusion is that the
Word won the certification election. So they are now the exclusive University evidently had no intention of bargaining with it. Thus, while
bargaining agent declared so by the med-arbiter. The president, the Court recognizes that technically, the University has the right to file
together with some _____ drew up bargaining proposals, then they the petition for certification election as there was no bargaining deadlock
submitted it to management. A week after they submitted it to the to speak of, to grant its prayer that the herein assailed Orders be
management, the president of the union dies. Namatay ang presidente. annulled would put an unjustified premium on bad faith bargaining.
Nobody knew what to do.
Bad faith on the part of the University is further exemplified by the fact
that an hour before the start of the May 10, 1988 conference, it
surreptitiously filed the petition for certification election. And yet during
said conference, it committed itself to "sit down" with the Union.
Obviously, the University tried to preempt the conference which would a limit because the employer is always the proactive party. The
have legally foreclosed its right to file the petition for certification employee is the reactive party.
election. In so doing, the University failed to act in accordance with Art.
252 of the Labor Code which defines the meaning of the duty to bargain Before you can have an employer-employee relationship you must have
collectively as "the performance of a mutual obligation to meet and an enterprise, whether it is single proprietorship, partnership or
convene promptly and expeditiously in good faith." Moreover, by filing corporation. There must be a business. One you have the business, the
the petition for certification election while agreeing to confer with the employer has command by virtue of ownership. As you very well know,
DWUEU-ALU, the University violated the mandate of Art. 19 of the Civil ownership is a bundle of rights. It is not one solidary single right. It is
Code that" (e)very person must, in the exercise of his rights and in the several rights bundled up together.
performance of his duties, act with justice, give everyone his due, and
observe honesty and good faith." The important right of ownership is possession. Jus possessionis. Jus
possidendi.
Moreover, the University’s unscrupulous attitude towards the DWUEU-
ALU is also betrayed by its belated questioning of the status of the said He has the right to occupy, control, run his business. He merely co-opts
union. The communications between them afforded the University the employee. The employee has the right to go inside the business and
ample opportunity to raise the issue of representation if indeed it was perform according to the manner and method that the owner wants. If
doubtful of the DWUEU-ALU’s status as a majority union, but it failed to the owner no longer wants him, he kicks him out. Because he is the
do so. On the other hand, in the agreement of May 10, 1988, the owner he has the right to possess it [the business]. What limits the right
University even agreed "to sit down and determine the number of that he can kick you out? Book VI of the Labor Code.
employees that will represent their bargaining unit." This clearly
indicates that the University recognized the DWUEU-ALU as the Now, the Labor Code interposes conditions. If you engage an employee
bargaining representative of the employees and is, therefore, estopped in your enterprise, you cannot kick him out unless there supervenes just
from questioning the majority status of the said union. or authorized causes. If the employer kicks out the employee that he
engages, then he runs afoul the Labor Code. So, if he does not like what
The Sec of Labor made a finding na unfair labor practice ang the members of the union are doing, he can act by just kicking them
management and secondly, they should’ve implememted the wage out. He can do that. That’s why there are always reacting. That’s why
order. So nakabayad na silag 14M backwages. Pildi ang Divine Word in the CBA there is no such thing as a breach of CBA. What is there?
University. There is grievance. Management, the owner, acts in accordance with his
rights as owner. If his rights are abused [transcriber’s note: I believe Fr.
Daog ang union but they won an empty victory. Ingon man ang means if he abuses his rights], in violation of the Labor Code, then the
management na sige daog man kaha mo, di man mi mobayad so i- employee complains, grieves. If the owner acts in such a manner to hurt
execute, kamo na lay execute. So ingon sa mga teachers who made up the employee, then he has a grievance. That is how things happen in
the local “bungkagon nato ning mga building ibaligya nato ang mga sin employer-employee relationship. This is always why the
ug unsa pay mabaligya kay di man kaha mobayad ning administration.” management/employer is the proactive party. The employee is the
Gitan.aw nilang bank account wa namay kwarta gi-withdraw naman reactive party.
tanan. So they thought they will execute, takeover the building from the
school or whatever. When they look at the title of the property, it was The moment he is now chosen to have representation and he has an
not under the name of Divine Word. The property was named under the exclusive bargaining agent (EBA), it is the employee thru the EBA who
Archbishop of Palo Leyte. So 3rd party ang tag-iya sa yuta. What about would ... [5:32] The employer does not care to switch to collective
the building? The accessory follows the principal. So way nabuhat ang bargaining because anyway there are individual contracts of
faculty union. employment and that is the law between the parties as long as there is
no CBA. The moment there is CBA then all individual contracts are
Ingon na lang sila nga mamalik na lang mig tudlo then the SVD fathers jettisoned. There is only one contract: the CBA. So, the longer the CBA
says “no more. We are closing down the school” mao nay gitawag nga can be put off, the better for the employer.
empty victory. Daog na unta pero nahanaw sama sa aso.
The original mistake was the counsel of the University. Pag present pa If there is already a CBA and the EBA wants to enter a new CBA because
lang unta sa bargaining proposal, deny na unta nila. this is expiring, whose benefit is it to conclude the succeeding CBA? The
employees. Because the new CBA will provide new benefits, higher
Remember the certification year rule. Wa na man nahumana man ang 1 salaries than the old one. It is to the interest of the employer to delay
year. Way CBA nga nakab-ot. So technically speaking, that bargaining collective bargaining.
unit, though appropriate, is already an unorganized establishment. Wa
nay exclusive barganing agent, naupos na ang 1 year. Wa may CBA. It If the owner is a man guided by non profits but by his sheer humanity,
is now open for everybody. he will not prefer a new CBA from the old. It will be the old one that will
be preferred for the sake of the bottomline of his financial statements.
Ang imong employer nga kalabanon ga hago-hago ka lang. Imong The CBA for that reason is sui generis. One of a kind.
kalaban mga restaurant, sari-sari store owners, unya way below
minimum wage ang ilang gina sweldo sa ilang mga empleyado. Unya There is no such thing as breach of a CBA. If the owner violates the
daog kana. Pagka ugma wa na sila dinha, wa nay freezer ug lamisa. CBA, it is only because he has acted in gross violation of the CBA. What
Unsaon mana nimo pag execute. Unya katong lugar nila, abang ra. Ang does that mean? It only involves 2 things:
kahago nimo aning victims of non-compliance of minimum wage, wa
diay ani. Ang kalaban dapat nimo dagko kay para di kadagan. Mao nay 1. Interpretation and enforcement of company personnel
lami kalabanon. Mapildi, bayad dayon. Unya ug gagmay, saon mana policies (disciplinary actions)
nimo. Wa kay mahimo. 2. Interpretation and implementation of the CBA.
September 24, 2020 Part 2 by Ergel Rosal There are all through the grievance machinery. They cannot be
violations of the CBA that are considered ULP.
The reason why the duty to bargain is more appropriate for the
management than it is for the union is because of the peculiar When does it become ULP? If the violation is gross violation.
configuration of collective bargaining. When is it gross? If it is flagrant and/or malicious refusal to comply
with the economic provisions of the CBA.
Employer-employee relationship, no matter how much social justice
works to put the employee and employer in equal footing, there is really
Even if what is involved is the economic provision of the CBA but there Negatives
is a question of interpretation or a question of ambiguous provision, it 1. That duty does not compel either party to agree to a proposal;
right away exits the realm of gross violation. It becomes an issue on or
interpretation and that is grievance machinery then voluntary 2. That duty does not compel either party to make any
arbitration. concessions
When does the duty to bargain collectively begin? Ang imong duty ra jud kay maglingkod para magnegotiate. You have no
According to Kiok Loy v. NLRC [when there is]: responsibility to agree to any proposal or to make any concession.
1. Majority representation status on the part of the bargaining
agent When do you have the duty to sit down? When what is contained
2. Proof of majority representation status in the bargaining proposals or bargaining demands of the union is
3. Submission on the part of the agent in writing of the mandatory subjects of bargaining.
bargaining proposals or demands of the union for and in
behalf of the bargaining unit. The shortcut for mandatory subjects of bargaining are terms and
conditions of work. If it is not terms and conditions of work, you might
Then Article 261 [Fr. says Art 260, but Art. 261 provides for the have an agreement but that is not the CBA. That is a rider on the CBA.
procedure for collective bargaining] takes over. And should there be a controversy arising from the rider, the DOLE
whether it be Secretary or the VA or the LA, has no jurisdiction over that
Art. 261. [250] Procedure in Collective Bargaining. The matter because it is not terms and condition.
following procedures shall be observed in collective bargaining:
Example: Suppose the union says in its bargaining proposal,
(a) When a party desires to negotiate an agreement, it shall serve a "Management hereby grants to the union the right of first refusal as to
written notice upon the other party with a statement of its proposals. the disposition of its fully depreciated assets." Then management
The other party shall make a reply thereto not later than ten (10) agrees. All of the sudden, the management just sells the car of the
calendar days from receipt of such notice; president. And since president is retiring, that car was sold to the
president himself who used that car at a nominal price of P1000. The
(b) Should differences arise on the basis of such notice and reply, car that was used by the president for 5 years is fully depreciated in the
either party may request for a conference which shall begin not later books of the corporation.
than ten (10) calendar days from the date of request.
The union invokes the right of first refusal clause. Management says "we
(c) If the dispute is not settled, the Board shall intervene upon are giving it to the president for P1000 because he has been using it and
request of either or both parties or at its own initiative and we have a policy among executives that they have right to purchase it."
immediately call the parties to conciliation meetings. The Board The union says it is them who have the right of first refusal. If we refuse,
shall have the power to issue subpoenas requiring the attendance of then you can give it to the president. The CBA says so.
the parties to such meetings. It shall be the duty of the parties to
participate fully and promptly in the conciliation meetings the Board So grievance. Then they go to the VA and the VA decided in favor of the
may call; union because it is clear in the CBA. The CA affirmed the decision of the
VA. When it reached the SC, SC says you're all wrong. This is a nominate
(d) During the conciliation proceedings in the Board, the parties are contract subsidiary to the contract of sale. It is a nominate contract
prohibited from doing any act which may disrupt or impede the early under the Civil Code. Who has the jurisdiction over nominate contracts?
settlement of the disputes; and The regular courts.
(e) The Board shall exert all efforts to settle disputes amicably and There is a new decision penned by Justice Inting [Fr. did not mention
encourage the parties to submit their case to a voluntary arbitrator the title of the case, nor the citation]. This is the crux of the decision:
Management has 10 days to respond, make counter-proposals. After He's an employee of SM packaging groups. It is a joint venture
that, another 10 days for the union to say we will meet on the proposals corporation. He was retiring. From the computation of the personnel
and counter-proposals so that we can have a written agreement. That office he was supposed to get P5M+. Come the day that he was to
is the process. receive his retirement, the check is just P3M.
Duty to bargain The management said that he had a standing debt with the credit
First you have to distinguish and demarcate the stages in collective cooperative of employees and he has been recalcitrant in paying it. The
bargaining as a process. If you want to know the content of the duty to management says it had an agreement with the cooperative that it will
bargain, you must divide the process into 3 phases. be the collecting agent, so the amortization of the debt was deducted at
source. Now that he will not be an employee anymore, the management
1. Negotiation Phase has deducted the full amount of the debt.
2. Administration Phase
3. Re-negotiation Phase SC: This involves mutuum/loan. It's a nominate contract. It is the regular
courts that has jurisdiction over this matter.
Negotiation Phase
There is still no CBA. You are sitting down and trying to hash out what Contract services between an employer and a manpower agency is not
would be the terms and conditions in the CBA. an employer-employee contact. It is a contract for independent service.
Therefore, it is not employer-employee relationship.
Duty of the management
There are 5 aspects. 3 positives, 2 negatives. But you will say it's in the Labor Code, under Articles 106, 197 and 109.
Precisely they have to put it there because in the rarest circumstance
Positives when there is non-payment or underpayment of wages of the employees
1. To meet promptly and expeditiously of the manpower agency, these workers must be given ready,
2. In good faith immediate and speedy access to relief. That is an exception to the
3. In order to complete the CBA that covers the terms and general rule that the Labor Code should have nothing to do with this. It
conditions of work. is by special provision of law that the otherwise innocent indirect
employer who entered into contract for services with a manpower
agency is made solidarily and jointly liable for the payment of wages. The union said they want to discuss the retirement benefits. Nestle says
That is an employer-employee relationship imposed by law. To that it does not want to talk about it anymore. It was sent to grievance
extent, it detracts the jurisdiction of the regular courts. however it remained unsettled. Hence, the union filed a complaint for
ULP.
If there is no employee that is not underpaid, if there is no employee
that is not paid his wages and this is only a controversy between the The ULP according to the union is refusal to bargain. Bad faith
employer who contracts with the manpower agency, they do not go to bargaining. You are willing to discuss other things but not this.
the LA. They go to the regular courts. If the manpower agency says that
it has paid the increase demanded by the new wage order, but the wage The VA ordered them to bargain. So they sat down again. When they
order says that the increase is for the account of the indirect employer, sat down again, the management still refused to bargain since it insists
they should go to the regular courts. That's between the both of them. that the matter has already been settled. CA said that the parties still
have to sit down.
Mandatory subjects of bargaining
You can compel the employer to sit down and bargain only on The issue before the Supreme Court is whether or not the retirement
mandatory subject of bargaining. What are these? Terms and conditions benefit is a mandatory subject of bargaining. The Supreme Court held
of work. yes. Is there a duty to sit down and negotiate on the mandatory subject?
Yes. Therefore, it ordered Nestle to sit down and negotiate.
What are terms and conditions of work? Rates of pay, working
hours, leaves, bonuses, 13th month pay, nightshift differential, overtime The decision became final. The union asked for an order from the court
pay, anything to do with the terms of conditions. that Nestle be held in contempt because it is refusing to bargain. The
SC said the position of Nestle is it does not want to bargain. But it is
UNION OF FILIPRO EMPLOYEES v. NESTLE sitting down and bargaining with you what it does not want to bargain.
G.R. No. 158930-31, August 22, 2006 Therefore, it does not violate the duty to bargain. Because the duty to
bargain does not include the duty to make any concession or to agree
Issue: WON the Retirement Plan was a proper subject to be included to any proposal.
in the CBA negotiations between the parties – YES.
Art. 263[252]. Meaning of Duty to Bargain Collectively — The
Ruling: The [1972] CBA that was about to expire at that time contained duty to bargain collectively means the performance of a mutual
provisions respecting the Retirement Plan. As the latter benefit was obligation to meet and convene promptly and expeditiously in good
already subject of the existing CBA, the members of UFE-DFA-KMU were faith for the purpose of negotiating an agreement with respect to
only exercising their prerogative to bargain or renegotiate for the wages, hours of work and all other terms and conditions of
improvement of the terms of the Retirement Plan just like they would employment including proposals for adjusting any grievances or
for all the other economic, as well as non-economic benefits previously questions arising under such agreement and executing a contract
enjoyed by them. Precisely, the purpose of collective bargaining is the incorporating such agreements if requested by either party but such
acquisition or attainment of the best possible covenants or terms relating duty does not compel any party to agree to a proposal or to
to economic and noneconomic benefits granted by employers and due make any concession.
the employees. The Labor Code has actually imposed as a mutual
obligation of both parties, this duty to bargain collectively. And, in What is the meaning of to meet and convene promptly and expeditiously
demanding that the terms of the Retirement Plan be opened for in good faith for the purpose of arriving at the CBA BUT no obligation to
renegotiation, the members of UFE-DFA-KMU are acting well within their agree to any proposal or make any concession?
rights as we have, indeed, declared that the Retirement Plan is
consensual in character; and so, negotiable. For as long as you sit down and maintain your position, you are still
negotiating.
As to the allegation of bad faith bargaining: Basic is the principle
that good faith is presumed and he who alleges bad faith has the duty
to prove the same. By imputing bad faith unto the actuations of Nestlé, COLLECTIVE BARGAINING
it was UFE-DFA-KMU, therefore, who had the burden of proof to present
substantial evidence to support the allegation of unfair labor practice. A
perusal of the allegations and arguments raised by UFE-DFA-KMU in the October 1, 2020 Part 1A by Dianne Marie Isidor
Memorandum (in G.R. Nos. 158930-31) will readily disclose that it failed
to discharge said onus probandi as there is still a need for the Today, we take up COLLECTIVE BARGAINING.
presentation of evidence other than its bare contention of unfair labor
practice in order to make certain the propriety or impropriety of the Collective bargaining can be discussed as a DUTY, RIGHT, or as a
unfair labor practice charge hurled against Nestlé. PROCESS.
There is no per se test of good faith in bargaining. Good faith or bad COLLECTIVE BARGAINING AS A DUTY
faith is an inference to be drawn from the facts, to be precise, the crucial
question of whether or not a party has met his statutory duty to bargain When you say collective bargaining as a duty, you always refer to
in good faith typically turns on the facts of the individual case. MANAGEMENT － the duty to bargain.
Necessarily, a determination of the validity of the Nestlé’s proposition
involves an appraisal of the exercise of its management prerogative. Why?
Employers are accorded rights and privileges to assure their self- Because the very nature of the Collective Bargaining agreement,
determination and independence and reasonable return of capital. This management has the least motivation to begin collective bargaining
mass of privileges comprises the so-called management prerogatives. In process. Why is that? Because without a collective bargaining
this connection, the rule is that good faith is always presumed. As long agreement, the prevailing agreement are individual contracts of
as the company’s exercise of the same is in good faith to advance its employment. And individual contracts of employment are largely
interest and not for purpose of defeating or circumventing the rights of contracts of adhesion. The employer dictates what are the terms and
employees under the law or a valid agreement, such exercise will be conditions of your engagement. So, why would he surrender that and
upheld. sit down with the exclusive bargaining agent to determine what should
be in the contract.
So, it is the union who will always assert the RIGHT TO BARGAIN for SEBA or because of a Certification Election, the legitimate labor
COLLECTIVELY. Now, if it is the employer who has the duty to bargain organization has become an exclusive bargaining agent.
collectively. Who has the RIGHT to bargain collectively?
 DUTY EMPLOYER
COLLECTIVE BARGAINING AS A RIGHT  RIGHT EXCLUSIVE BARGAINING AGENT
Mind you, the Right to Bargain Collectively is NOT A PERSONAL RIGHT. Now, please bear in mind that while the exclusive bargaining agent is a
It is not the right of the individual worker. juridical person, it requires another agent to perform its work to
negotiate. That’s why in Article 219, there is a definition of
Whose right is it? “Bargaining Agent”. What is a bargaining agent?
The seat of that right is the EXCLUSIVE BARGAINING AGENT. That Article 219 [212]
means that the legitimate labor union has either been certified through
a SEBA (Sole and Exclusive Bargaining Agent) PETITION presented to “Bargaining Representative” means a legitimate labor organization
the BLR or he has undergone a Certification Election and emerged as whether or not employed by the employer.
the winner because he has the most number of valid votes cast. It
received the majority of the valid votes cast. As to the plurality, it must Rule I, Section 1. Definition of terms.-
be the MAJORITY of the valid votes cast of Certification Election.
(t) “Exclusive Bargaining Representative” refers to a legitimate labor
The moment he is the exclusive bargaining agent then he can draw up union duly recognized or certified as the sole and exclusive
bargaining proposals or collective bargaining agreement demands and bargaining representative or agent of all the employees in a
he hands it over to the employer or the representative of the employer bargaining unit.
(personal manager or general manager). And the Employer has 10 days
to reply to that bargaining proposal. That is his DUTY. And it is the union It could be a legitimate labor organization that has been or
who must now follow up and make the employer account for his counter recognized as exclusive bargaining agent or it could be an employee
proposal or his agreement, he might find in order the bargaining or a representative or agent of the exclusive bargaining agent
proposals. So, that is the nature of the Collective Bargaining Agreement. regardless of whether that person is in employer-employee
relationship with the employer.
You have an agreement over the terms and conditions of work in an
enterprise that is not co-owned by management and the union. Who What does that mean?
owns it? It is just the employer. So if it is the employer who owns it, he The one who can sit down is the exclusive bargaining agent. He is a
has the Right to Possess it to the exclusion of all others. juridical person, he does not have a bottom from which he can sit down.
He cannot sit down. He has no body at all. He has no mouth. He cannot
Now, if the union members who fill the position of the bargaining unit, speak. So, a juridical person unable to act on its own, requires a natural
do something that is not the liking of the employer, the employer will person to do its bidding. That is why you have warm bodies who actually
just kick him out. As the owner of the factory, he has the right to possess sit down and negotiate with the equally warm bodies that represent the
it and to exclude all others. employer who oftentimes also is a juridical person. So there will be
actual and meaningful negotiation, you end up with a set of people that
What limits his rights? are natural persons in either side of the negotiating team.
What limits it, is the LABOR CODE. And the Labor Code says that if you So, when you say bargaining agent, it can mean the exclusive bargaining
have engaged someone who worked for you within the premises of your agent (the union) or it can mean the actual representative/s if the union
factory, you cannot terminate him, you cannot throw him away without who sit down for and in its behalf. That representative DOES NOT HAVE
any JUST or AUTHORIZED CAUSE. There must be just or authorized THE RIGHT TO BARGAIN. They merely represent the one who has the
cause. right to bargain.
JUST CAUSE, that’s the fault of the employee. AUTHORIZED CAUSE is a CONTENT OF THE DUTY TO BARGAIN COLLECTIVELY
cause that is neutral to the employer and neutral to the employee. The They divide the process in three (3) parts. What are the 3 parts of the
employee is not at fault, the employer is also not at fault. process of Collective Bargaining?
Give an example of Authorized cause: 1. Negotiation Phase

2. Administration Phase
COVID-19. Because of the coming of this unseen enemy Covid virus, 3. Re-Negotiation Phase
nobody comes to our restaurant anymore. We advertise on facebook
that we will accept orders but so do other restaurants. And the take out NEGOTIATION PHASE
orders that are channeled to us through food panda is not enough. The negotiation phase deems that what is existing while they are
Therefore, I have to let you go. Now, the workers would say: if you let negotiating is still individual contracts of employment. The moment they
us go then you give us separation benefits. Because it is not a culpable complete the CBA and register it with the DOLE then that takes the place
cause it is an authorized cause. But then management will say: an of the individual contracts of employment.
employer is only obliged to pay separation benefits if he is retrenching
to avoid loss or to minimize or prevent loss. But if he is in the midst of ADMINISTRATION PHASE
serious loss, he does not have to pay separation benefits. So, this Covid There is no more individual contracts of employment. What is there?
is SERIOUS loss. Therefore, I am not paying you anything. So many Only the CBA.
workers are out of work. They are out of work not because of the ill-will
of the employers but because of the deadly effect of a virus which we In the public sector, you the Collective Negotiation Agreement (CAN).
have still to seek. We have not seen him but he has tremendous effect CBA is for the private sector. That CBA is the law between the parties.
all over the world
The duty to bargain, while there is a CBA is different from the duty to
So, the DUTY to the Bargain falls on the EMPLOYER. The RIGHT to bargain when there is yet no CBA.
Bargain belongs to the Exclusive Bargaining agent. It does not belong
to a legitimate labor organization, it also does not belong to the worker.
Once, it was just a legitimate labor organization but because of a petition
October 1, 2020 Part 1B by Marion Lawrence Lara Q: If the employer does not comply with this,
is there a violation or refusal to bargain?
Q: What is the duty during negotiation when there is no CBA?
A: The answer is NO. The Supreme Court has said
A: There are 5 aspects – 3 positive and 2 negative. that an employer who negotiates the succeeding
CBA during the 60-day freedom period does so at
3 POSITIVES his own risk.
4. To meet promptly and expeditiously
5. in good faith Q: What is the risk?
6. In order to complete the CBA that covers the terms and
conditions of work. A: The risk is that there might be another union
that will file a petition for certification election
2 NEGATIVES during the 60-day freedom period and it is
3. that duty does not compel either party to agree to a proposal; supported by 20% of the bargaining unit or
or signature support. In this case, the Med-Arbiter no
4. that duty does not compel either party to make any longer has discretion but to approve and mandate
concessions a certification election. If in the certification election
mandated by the BLR, the incumbent loses.
2ND PHASE (ADMINISTRATION PHASE)
I hope you memorize that. We go to the next phase of collective Q: What happens to the renewed CBA that
bargaining process or administration phase, where we already have a they agreed upon within the 60-day freedom
CBA. When you have a CBA, what happens? you have the duty to period?
bargain. Such duty consists of:
A: It will fall by the wayside. It will not be counted.
1. Neither parties shall terminate or modify the CBA; It is because the new exclusive bargaining agent
2. Maintain the status quo has now the exclusive right to negotiate. The
3. you cannot end the CBA, alter any of its provisions. exclusive bargaining agent cannot just say, “I will
take the old or agreed upon CBA and this will be the
As to the 1st duty, there is an exception: you can make changes if it is
CBA for the next 5 years.” NO. It will negotiate for
for the better. When you add more benefits to the employees. That is
its own new CBA with the management.
alright. But if you change it to the prejudice of the employees, then, that
is not allowed. A modification is not allowed.
Please remember that even if, DURING THE 60-
DAY FREEDOM PERIOD, the next CBA (that is
Q: Are modifications that affect negatively the employer
supposed to take effect upon the expiration of the
allowed?
existing CBA) has already been concluded, signed,
and ratified by the bargaining unit, it (refers to the
A: Of course! If you increase the salaries that are agreed upon in the
next CBA) does not bar a petition for certification
CBA, is that not negatively affecting the employer because more money
election which is filed before the 60-day freedom
will be lost from him? That is allowed. What is not allowed are the
period ends.
changes in the CBA that result in diminution of salaries and benefits.
Kung paubos gani ang sweldo and other benefits of employees because
Q: Can that be cited as a bar to petition for
of a modification, that is not allowed. But if it improves the situation of
certification election?
the employee, then that is allowed. No employee will mind that.
Ang gikasabutan didto kay ang salary increase for the 1 st year of CBA
A: The answer is NO because it is not yet an
will Php 1,000 /month. After the salary increase is instituted, wa pa gani
existing CBA. The law says that during the 60-day
mahuman ang tuig nidungag ang employer, kinsa may buang na
freedom period, the contract bar rule does not
employee na dili mudawat? Alangan muingon sila na modification of the
apply. The existing CBA or a premature CBA cannot
CBA na, dili mi mudawat ana. You are changing, that is a violation. Kinsa
bar a petition for certification election.
may buang na employee muingon og ing-ana. Kutob sa benefits, change
of conditions for the betterment of the employee, that is allowed. But
3. When the bargaining unit engages in a SCHISM.
changes prejudicial to the employee, that is not allowed. For many
times, when you act for the betterment of the employee, the employer As to schism, there is a change of allegiance of their
is deducted. If he grants more vacation leave, he will have to spend exclusive bargaining agent.
more for that. That is prejudicial to the employer. But, that is allowed.
Q: How?
Q: What are the exceptions to this rule that neither parties shall
terminate or modify the CBA? A: By an overwhelming majority.
When the bargaining does that, what happens is a
1. When the change, amendment, or modification is for the new federation, to whom the existing local has
better of the employee, and affiliated, takes the place of the old exclusive
2. During the last 60-days of the CBA, either party may present bargaining agent. Then, the exclusive bargaining
to the other, new bargaining proposals that will be contained agent is no longer bound by the personal provisions
in the CBA that will take the place of the existing CBA once it or personal clauses found in the CBA. Example:
expired. promise not to strike during the duration of the CBA
(No-Strike Clause). So under the new federation,
As to item no. 2: You can negotiate during the 60-
they can go to strike. If there is a disagreement that
day freedom period. Suppose the employer does
constitutes a bargaining deadlock. Whereas, the old
not negotiate during the 60-day freedom period.
exclusive bargaining agent who authored that
After the union has given the list of bargaining
agreement with management, he cannot go on
proposals, is it not that when the employee has
strike by reason of a deadlock (deadlock strike). He
given the bargaining proposals, the employer has
can only go on strike when the ground for the strike
10 days to reply and make counterproposals?
is Unfair Labor Practice (ULP strike).
A: He is rendered exclusive because the way he obtained the exclusivity

3RD PHASE (RE-NEGOTIATION PHASE) is through the process declared by the Labor Code. What is that?
The Phase 3 is the re-negotiation stage. In this stage, you must envision CERTIFICATION ELECTION OR PETITION FOR SEBA (Sole and Exclusive
that there must be an expired CBA and then the parties (Exclusive Bargaining Agent). Kaning petition for SEBA, mao ning ginatawag na
Bargaining Agent and Employer) are negotiating a new CBA to replace Voluntary Recognition.
the expired CBA. After the expiry date, the Labor Code says that the old
CBA continues to be the law between the parties until the new CBA is October 1, 2020 Part 2A by April John Latorza
concluded.
 FIRST SET OF DUTIES - So you have to administer the CBA Now, when there exist an exclusive bargaining agent, the exclusivity of
and follow Phase 2 of the duty to bargain (Administration the agent ends. Why? Because if you are in the bargaining unit, whether
Stage): parties shall not modify or terminate the contents of you are a member of a union or you are not a member of a union, you
the CBA but must religiously comply with the CBA (refers to are just within the bargaining unit. If you have a grievance and it is
old CBA). against the employer because he did not comply with the bargaining
 SECOND SET OF DUTIES - (Like Phase 1 – Negotiation Stage) agreement and the exclusive bargaining unit does not help you, does
is to meet promptly and expeditiously in good faith to arrive not represent you, does not push your grievance, that is not a cause of
at a CBA but neither party has the duty to agree to a proposal action for you to complain before the BLR, it does not become an intra-
or make any concession as to the new CBA being negotiated. union controversy. Why? Because the law allows you alone, or the union,
or any group of persons to bring a grievance to the employer. So, the
So those are the 3 phases of the CBA. As to what is bad faith bargaining, exclusive bargaining agent is no longer exclusive, you can bring a
there are many examples: grievance. You and others can start a grievance with the management.
So the exclusivity is only up to negotiating an agreement. Now, in the
1. Boulwarism – when management tries to negotiate with the union exercise to duty to bargain by management and the right to bargain by
through the members and through their families, that is bad faith the employer.
bargaining. In bargaining, you can only negotiate with the exclusive
bargaining agents. You cannot go to the principal who are the How do you measure good faith? That is tested in the case of FILIPRO
constituents of the appropriate bargaining unit. The employer cannot go WORKERS UNION v NESTLE. FILIPRO was the old name of the Union
to the principal itself or their families and bargain with them or influence of Nestle. What did FILIPRO WORKERS came about? They file an unfair
them. The employer has to bargain with the agent. That is why it is labor practice and refusal to bargain against their employer because in
called not just an “agent” but it is called “exclusive bargaining agent”. the negotiation of a new collective bargaining agreement, the employer
told them “we will not discuss anymore your bargaining proposal about
Kung mubaligya kag yuta unya naay ahente na muanha nimo, retirement benefit”. They will have the same retirement benefits as all
“Sir/Ma’am, kuhaa kong exclusive agent na mubaligya sa inyong yuta. other workers in the 13 other plants of NESTLE. We will not discuss it
Pangutan-on nimo siya, “unsaon man nako pagbuhat ana?” anymore because if you will discuss it and all the others will follow. The
union said no, we have to discuss it. The Union is KMU. They went to
Mutubag ang agent na “Ibutang dinha sa imong Special Power of the Supreme Court, and said NESTLE is committing unfair labor practice
Attorney nganha kanako na exclusive agent ko. Isulat na I am granting because it refuse to bargain on the mandatory subject of bargaining.
Mr. so-and-so exclusive authority to sell my property covered by TCT
123456 containing 1,000 sqm. more or less located at Catalunan, Davao What are the mandatory subject of bargaining? Terms and conditions of
City.” work. What is the most important conditions of terms and conditions of
work? Breach of pay, the question of pay, how is it computed, what are
Q: Kung buhaton nimo na, exclusive na siya? Gi-exclusive the annual increases, that the employer will grant in the collective
naman nimo sa imong SPA? bargaining agreement. Are retirement benefits a terms and conditions
of work? Yes it is terms and conditions of work, that was answered by
A: DILI. Bisan nakabutang pa na sa SPA, dili gihapon na siya exclusive. the Supreme Court. Is it a mandatory subject of bargaining? Yes it is a
When can he be exclusive? If he paid a separate consideration for the mandatory subject of bargaining. Does NESTLE has the duty to bargain
right to sell the property, and as a consequence, he has been appointed on retirement benefits? Yes, that’s decision became final. So, it was
as exclusive by reason of the consideration that he paid to the principal remanded to the Labor Arbiter who decided the original case. So Nestle
or the owner of the property. was ordered to sit down and bargain the retirement benefits. And
NESTLE once said we will not bargain on the retirement benefits. And
Pareha anang rules sa option to buy or right of first refusal. so, UNION went back to the Supreme Court and this time they went on
ancillary motion to hold NESTLE in contempt of Court because the SC
Nipalit ka og yuta, “O, naa koy Php 5,000.00, option to buy.” Ang yuta had declared that retirement benefits are mandatory subject of
niya magvalue of Php 1 million. Tagaan nimo siya og Php 5,000.00. then bargaining and NESTLE says it will not bargain. What happened to their
you will ask him to give you an exclusive option to buy the property ancillary motion to hold NESTLE in contempt?
within 6 months. Wa pa gani nahuman ang 6 months, iya nang gibaligya
sa lain. Unya igsoon lang nimo iyang gibaligyaan, suko kaayo ka. Gikiha The SC dismissed the motion, denied the motion, why? The SC says
nimo siya ug ang imong igsuon. NESTLE actually bargaining with you, only that he is bargaining the he
should not bargain. His position that he will no longer discuss with you
Q: Will the case prosper? the retirement benefits and your position that your retirement benefit
should be discussed are both legitimate positions and no position is
A: YES, but only as to the seller but not to the buyer (imong igsuon) superior to the other. Nestle never stop talking to you, so he is
because the buyer is not privy to your agreement. Your agreement to bargaining. You can be successfully sued for not bargaining only when
have the option to buy the property is operative for the next 6 months you shut your mouth and you pretend to be a wood (dedma). That is
kay imo mang gibayran ang “option to buy” for 6 months. Kung wala refusal to bargain. So, it is not bad faith bargaining if you and you
gani nimo siya bayari, bisan pa og muingon ang seller na “ikaw ra gyud bargain that you should not bargain. Why? Because of the 2 negative
akong baligyaan ana, wala na gyuy lain.” WALA, you have no cause of components of duty to bargain. Duty to bargain does not include the
action against the seller because you did not give a distinct and separate duty to agree to any proposal or to make any proposition. That is the
consideration for the option to buy. That is in Civil Code. NESTLE decision.
Q: Kanang exclusive bargaining agent, giunsa man na siya

pagka-exclusive?
UNION OF FILIPRO EMPLOYEES - DRUG, FOOD AND ALLIED

INDUSTRIES UNION - KILUSANG MAYO UNO (UFE-DFA-KMU) Here, as this benefit was already subject of the existing CBA, the
v. NESTLÉ PHILIPPINES INCORPORATED members of UFE were only exercising their prerogrative to bargain or
August 22, 2006, J. Chico-Nazario renegotiate for the improvement of the terms of the Retirement Plan
just like they would for all the other economic & non-economic benefits
FACTS: As the CBA between Nestlé and UFE-DFA-KMU, the Presidents previously enjoyed by them. Precisely, the purpose of collective
of the Alabang & Cabuyao Divisions of the union, through a Letter of bargaining is the acquisition or attainment of the best possible covenants
Intent, informed Nestlé of their intent to open Collective Bargaining or terms relating to economic & non-economic benefits granted by ERs
Negotiation for 2001-2004. Nestlé acknowledged receipt and informed due to EEs. LC has imposed a mutual obligation on both parties to
the union that it was preparing its own counter-proposal and proposed bragain collectively (LC 252 & 253)
ground rules to govern the conduct of CB Negotiations. It later
underscored the position that "unilateral grants, one-time company 2) W/N assumption of powers of SOLE should have been limited
grants, company-initiated policies and programs, which include, but are merely to grounds alleged in the Second Notice of Strike
not limited to the Retirement Plan, Incidental Straight Duty Pay and
Calling Pay Premium, are by their very nature not proper subjects of CBA NO. SOLE's assumption of jurisdiction power necessarily includes
negotiations and therefore shall be excluded therefrom." The Cabuyao matters incidental to the labor dispute, that is, issues that are necessarily
Division later became the sole bargaining unit involved in negotiations involved in the dispute itself, not just to those ascribed in the Notice of
with the closure of the Alabang Plant. Strike, or otherwise submitted to him for resolution. Accordingly, even if
not exactly on the ground upon which the Notice of Strike is based, the
Nestlé, claiming to have reached impasse in dialogue, requested NCMB fact that the issue is incidental to the resolution of the subject labor
to conduct preventive mediation proceedings; despite 15 meetings, dispute or that a specific issue had been submitted to SOLE for her
however, the parties failed to reach any agreement on the proposed resolution, validly empowers the latter to take cognizance of and resolve
CBA. Conciliation proceedings proved ineffective. UFE-DFA-KMU filed a the same. In any event, the query as to W/N the Retirement Plan is to
Notice of Strike complaining of bargaining deadlock (on economic be included in the CBA Negotiations between the parties ineluctably
issues). It later filed another Notice of Strike predicated on Nestlé's dictates upon SOLE to go into the substantive matter of CBA
alleged ULP (bargaining in bad faith --> setting pre-conditions in the negotiations.
ground rules by refusing to include issue of Retirement Plan in the CBA
negotiations) A strike vote conducted was met with overwhelming 3) W/N Nestlé is guilty of ULP (setting a pre-condition to
approval. bargaining)
Nestlé filed with DOLE a Petition for Assumption of Jurisdiction, pursuant UFE-DFA-KMU: “Refusal to bargain on a very important CBA economic
to LC 263 (g), effectively enjoying any impending strike. provision constitutes unfair labor practice. Respondent Nestlé Phils., Inc.
insisted that the Union should first agree that the retirement plan is not
SOLE Sto. Tomas ordered any strike or lockout to be enjoined and the a bargaining issue before respondent Nestlé would agree to discuss
parties to cease and desist from committing any act that might lead to other issues in the CBA.”
the further deterioration of the current labor relations situation. The
parties were further directed to meet and convene for the discussion of SC: NO ULP.
the union proposals and company counter-proposals before the NCMB.
MR filed by UFE denied. The purpose of collective bargaining is the reaching of an agreement
resulting in a contract binding on the parties; but the failure to reach an
Despite SOLE Order, the union went on strike. SOLE issued an order agreement after negotiations have continued for a reasonable period
directing (1) the members of UFE-DFA-KMU to return-to-work within does not establish a lack of good faith. The statutes invite and
twenty-four (24) hours from receipt of such Order; (2) Nestlé to accept contemplate a collective bargaining contract, but they do not compel
back all returning workers under the same terms and conditions existing one. The duty to bargain does not include the obligation to reach an
preceding to the strike; (3) both parties to cease and desist from agreement.
committing acts inimical to the on-going conciliation proceedings leading
to the further deterioration of the situation; and (4) the submission of The crucial question, therefore, of whether or not a party has met his
their respective position papers within ten (10) days from receipt statutory duty to bargain in good faith typically turns on the facts of the
thereof. But notwithstanding the Return-to-Work Order, UFE continued individual case. As we have said, there is no per se test of good
with their strike, prompting SoLE to seek the assistance of the PNP for faith in bargaining. Good faith or bad faith is an inference to be
the enforcement of said order. drawn from the facts. To some degree, the question of good faith may
be a question of credibility. The effect of an employer’s or a union’s
Members still continued with their strike and refused to go back to work individual actions is not the test of good-faith bargaining, but the impact
as instructed --> SOLE sought assistance of PNP for enforcement of the of all such occasions or actions, considered as a whole, and the
order inferences fairly drawn therefrom collectively may offer a basis for the
finding of the NLRC.
CA: ordered the retirement plan was a unilateral grant and not a
mandatory subject for bargaining and affirmed the dismissal of ULP For a charge of ULP to prosper, it must be shown that Nestlé was
charges against Nestlé. motivated by ill will, “bad faith, or fraud, or was oppressive to labor, or
done in a manner contrary to morals, good customs, or public policy,
ISSUES: 1) W/N the Retirement Plan was a proper subject to and, of course, that social humiliation, wounded feelings, or grave
be included in CBA negotiations anxiety resulted x x x” in disclaiming unilateral grants as proper subjects
in their collective bargaining negotiations. While the law makes it an
RULING: YES. SC upheld UFE's contention, saying that there is nothing obligation for the employer and the employees to bargain
in either of the documents that prove that it agreed to treat the collectively with each other, such compulsion does not include
Retirement Plan as a unilateral grant of the company which is outside the commitment to precipitately accept or agree to the
the scope of the CBA. In a similar case involving the same parties, the proposals of the other. All it contemplates is that both parties should
Court had occasion to rule that a retirement plan is consensual in nature. approach the negotiation with an open mind and make reasonable effort
"The fact that the retirement plan is non-contributory does not make it to reach a common ground of agreement.
a non-issue in the CBA negotiations. Since the retirement plan has been
an integral part of the CBA since 1972, the Union's demand to increase In the case at bar, Nestle never refused to bargain collectively with UFE-
the benefits due the EEs under said plan is a valid CBA issue." DFA-KMU. The corporation simply wanted to exclude the Retirement
Plan from the issues to be taken up during CBA negotiations, on the Do you think an employer at that time who knows that all other
postulation that such was in the nature of a unilaterally granted benefit. employers were imposing 12 hours of work a day and they were ask by
An employer’s steadfast insistence to exclude a particular substantive a union for an 8 hours only, that was within his realm of practical
provision is no different from a bargaining representative’s perseverance possibility? No, it would be impossible. You need a strike to demand that
to include one that they deem of absolute necessity. Indeed, an and the strike should become universal before you can be granted that
adamant insistence on a bargaining position to the point where the humane benefit of 8 hours of work. So, JBL Reyes says the
negotiations reach an impasse does not establish bad faith. reasonableness or the affordability of the demand is not an index of the
good faith or bad faith in bargaining. Please remember that because the
By imputing bad faith unto the actuations of Nestlé, it was UFE, SC forgot that, it is not in the San Carlos Milling v. CIR (1993), they did
therefore, who had the burden of proof to present substantial evidence not advert that decision of Caltex Philippines v. Phil. Labor Organization
to support the allegation of ULP. The allegations & arguments raised 93 PR 295; 1953, they forgot that. They do not advert that.
readily show that they failed to discharge this onus probandi as there is
still a need for presentation of evidence other than its bare contention What should be in the collective bargaining agreement? They are talking
of ULP. It is not enough that the union believed that ER committed acts now not about mandatory subjects of bargaining but mandatory
of ULP when the circumstances clearly negate even a prima facie provisions of the CBA. Those are two different things, mandatory
showing to warrant such a belief. subject, you must discuss it, it must be recorded of the CBA, it must be
a part of the CBA. A CBA is not complete without it. What is mandatory
Though Nestlé underscored its position that "unilateral grants, one-time subject of CBA? An example of that is the grievance procedure.
company grants, company-initiated policies and programs, which Management does not have a grievance. Why? Because management
include, but are not limited to the Retirement Plan, Incidental Straight has managerial prerogative. If some worker stole something from
Duty Pay and Calling Pay Premium, are by their very nature not proper management. He will not invoke the collective bargaining agreement
subjects of CBA negotiations and therefore shall be excluded therefrom," and say let us discuss this and negotiate because I have a grievance.
such attitude is not tantamount to refusal to bargain viewed in light of Maminaw ba management ana? No, the management acts, the
the fact that 8 out 9 BUs have allegedly agreed to treat the Retirement management investigate you under the Labor Code. After the
Plan as a unilateral grant. Nestlé, therefore, cannot be faulted for investigation, if there is a finding that you are really responsible, then
considering the same benefit as unilaterally granted. the management will write you a letter. That’s it. Upon the receipt of a
letter, you file a grievance. Why can you file a grievance now? Because
Construing arguendo that the content of the aforequoted letter of 29 there is material change not for you benefit of your terms and conditions
May 2001 laid down a precondition to its agreement to bargain with of work, something has happened to you. That has affected negatively
UFE-DFA-KMU, Nestlé’s inclusion in its Position Paper of its proposals the terms and conditions of work.
affecting other matters covered by the CBA contradicts the claim of
refusal to bargain or bargaining in bad faith. Accordingly, since UFE- Is there a grievance just because the employer puts out a notice Mr. so
DFA-KMU failed to proffer substantial evidence that would overcome the and so, warehouse in charge, is has been reported to have taken for his
legal presumption of good faith on the part of Nestlé, the award of moral own appropriation 2 empty barrels belonging to the employer and within
and exemplary damages is unavailing. his authority to safeguard and store to the warehouse? Any information
that you may have please report to the authority headed by Mr. So and
The other example of not bargaining in bad faith is the so called blue- so. Can the accused, the respondent say, raise a grievance now against
sky bargaining in the STANDARD CHARTERED BANK EMPLOYEES the management for defaming him? Is there a grievance? Nothing has
UNION (2004). What happened in that case? One of the charges brought materially change in your terms and conditions. So you don’t have
against the union was it was asking for unreasonable demands, its grievance, premature kay wa ka pay grievance. Nganong defaming man
bargaining proposals were unreasonable. So they were not bargaining na when the Labor Code puts the employer to conduct an investigation
in good faith. The SC made a finding and it said that none of the of your charges against you. Are you saying that the Labor Code is in
demands of the union is unreasonable. Therefore, the union was not error? Or unjust to workers because it is putting you under investigation?
guilty of blue-sky bargaining. There are many ways by which people ______. Like what is the
relationship between the procedure that you should be followed before
Blue-sky bargaining in the decision was put in a quotation marks and the employer can dismiss or suspend the employee and the grievance
there is no foot note about that. Where did they get that? An old case, machinery? Does one make the other unnecessary?
a 1950 case, in a Caltex Philippines v. Phil. Labor Organization 93 PR
295; 1953 and penned by Justice Reyes. And Justice Reyes said that, October 1, 2020 Part 2B by Gian Antonio Maligad
the affordability of what the Union demands is not determinative of the
legality of the strike that a union calls. For it there be a bargaining Answer: The answer is no. Both have to be complied with in the order
deadlock and the union demands considered to be unreasonable that in that should be followed.
itself does not make the strike illegal. So, does that mean if we rephrase
it, that the union can ask even for clearly an affordable benefits from Q: What is the order that should be followed?
their employer.
Answer: In disciplinary cases—
Suppose the union says in their proposal, a car to every member of the
union and to those in a bargaining unit. And the management says, First: First, there should be an investigation as mandated by the Labor
soloha ninyo you are being unreasonable. You are asking for the moon Code. The employee that is the Respondent, should be given the ample
and the stars. In collective bargaining you can ask for the impossible. opportunity to defend himself and evidence that is substantial is
Does that make the union demands an indication that they are required, before he can be found guilty of the charges against him or
bargaining in bad faith? Reyes says no, why? Because every single her—substantial evidence.
benefit that being enjoyed by the union were warrants of what they are
demanded impossible to grant. 8-hour law, the working time at that time What is substantial evidence?
when it was brought out was 12 hours working time. Sun up to sun
down that was the full days work of which you were paid a full days Answer: It is that quantum of evidence that a reasonable and unbiased
wage. Here comes the union and ask for 8 hours of works because it is mind would consider as adequate to support a conclusion. If it is not
reasonable the calendar day into three equal parts, 8 hours for sleep adequate, then it is not substantial.
because it is certified by doctors and health sciences, and then 8 hours  Remember, it is not preponderance of evidence, which is a
for personal business. higher quantum. It is not proof beyond reasonable doubt. It
is not clear and convicting evidence.
 Substantial evidence—it is the lowest quantum of So, the union was very happy. So happy that they forgot to put it in the
evidence. CBA. So, the CBA was concluded, signed and ratified etc. but that
provisional agreement [That the mandated wage order that should be
It is because here you are just talking about property rights—that is why incorporated in the CBA, that should be granted over and above the CBA
it is the lowest form of evidence. annual increases] was not included.
Contention of Employee: I have a grievance and I was investigated So, when the union realized that the union went to management—6
but I was not given the right to cross-examine my accusers. I never saw months after the CBA was agreed upon. The employees asked the
my accuser, who is that person who told the authorities that I have been management to grant the mandated wage.
stealing empty barrels? That is unfair and that is against the Bill of
Rights, when an accused has the right to cross-examine the witnesses Management denies such and refuses to give such wage due to COVID.
against him.
The union contends that the minutes of the negotiation agreement
Question: Is that correct? Does the employee have the right to clearly states that you are agreeable to it and you are agreeable to
cross-examine? putting it in the CBA.
Answer: No, the employee has no right to cross-examine. The right to Management says, “yes we agreed to that and we agreed to put it down,
cross-examine is only available in criminal cases—when your life or but it never found its way into the CBA. So, we have no obligation. If
liberty is at stake. things were different, there would have been no problem and we would
have given such to you. However, things have changed and it is not
However, in labor investigation you have no right to cross-examine. The found in the CBA.”
Labor Arbiter might have the duty to conduct an open hearing by, which
he examines the witnesses [those that have submitted the affidavits and Employees contend that the employer has already agreed to put it in the
position papers] and ascertain certain things, especially if there are more CBA and there are already signatures in the minutes of the CBA. Are
than one version of an incident, which is disciplinary in nature. But, that you not bargaining in bad faith?
is for the Labor Arbiter to decide, because the LA has the discretion
to determine whether or not: Answer: The Supreme Court used the action in evidence. The Parole
 To call more hearings; Evidence Rule—that the terms of the agreement have been reduced
 To conduct cross-examination; or into writing, there shall be no evidence as to what agreement is, other
 To decide the merits of the case on the basis of position than what is contained in the four (4) corners of the agreement.
papers
The minutes of the negotiation of the CBA are not important.
MAKE SURE YOU HAVE A GOOD IDEA ON WHAT IS A What is the main evidence for such?
GRIEVANCE.
The CBA. If the version of what is written in the CBA is not the same as
Grievance—It is not a breach of contract, it is a cause of action arising the version of the copy possessed by management, then there is a
peculiarly from a violation of a collective bargaining agreement or a disagreement between the two (2) copies. The copy of the CBA that was
violation of the company personnel policies of the employer. registered and given to the Department of Labor (DOLE) through the
 If the employer violates his own policy, then there is a Bureau of Labor Regulations (BLR) is the controlling copy.
grievance. The grievance is dealt with the Grievance
Hearing So, the parole evidence rule holds with the CBA.
It is not a cut and dry, there is a give and take and there could be ALL OTHER RULES APPLY TO THE CBA.
negotiated solutions in the grievance. Sometimes, if the employer For instance: The rule that written agreements may be enforced and
suspends the employee, the union will ask a grievance hearing to the prescriptive period is ten (10) years as provided by the New Civil
shorten the suspension period or the union could negotiate a Code. This same rule also applies to the CBA.
leniency, instead of terminating the employee.
You can enforce money claims arising from the CBA, within three (3)
So, that is the Grievance Machine. years from the time that the right of action accrues. It is still the same
the period of prescription of the enforceability of money claims under
But, that happens only after there has been ample opportunity to be the Labor Code.
heard and the employee is given two (2) written notices:
 First Notice—To apprise him of the acts or omissions that The prescriptive period for illegal dismissal is four (4) years.
have resulted to the complaint against him;
 Second Notice—The written notice, informing him or her The prescriptive period for Unfair Labor Practice dismissal is One (1)
that the appointing authority is now exercising his authority year.
to dismiss the respondent-employee.
Note: The numbers you have to remember—1-3-4.
Q: How will you use data to assert a right that is not explicitly
provided in the Collective Bargaining Agreement (CBA)? The employer must maintain the payroll records for four (4) years,
but the NIRC requires the records of business transactions to be kept
Answer: In real facts. for five (5) years from recording.
Illustration: Suppose, during the negotiation between the union and So, since payrolls are business transactions for purposes of the
the management, the union proposed that since there is a new wage BIR, the period to keep such payroll records is five (5) years.
order, the benefit of such wage order. Although, no one from the
exclusive bargaining unit was covered by the said wage order. The BIR has jurisdiction over withholding taxes. They are income tax
deducted at source. They are maintained by payroll records.
Suppose, they as the management, “Can you not add that over and
above the annual increases of the CBA?” Indirectly, the payroll record has to be kept for five (5) years as
mandated by the BIR and not the Labor Code.
Management says, “Yes, we are doing very well. We can add that.”
October 8, 2020 Part 1A by Ara Princess Olamit But, Art. XIII, Sec. 3 of the Constitution when it says “the state
shall afford protection to labor including the right to self-organization”,
that is not a source or right. It is a statement of policy that requires
UNFAIR LABOR PRACTICE legislative implementation. So even this right, the right to self-
organization, may be legislated out of existence. And if it is done that
way, your remedy is not judicial, it is political. You have to choose people
Okay, we take up UNFAIR LABOR PRACTICE. who will populate Congress and pass the required legislation to
implement the constitutional policy of the right to self-organization.
It really begins before Title VI and that is Art. 257 (Non-abridgment of
Right to Self-Organization). Because the right to self-organization when exercise involves the public
and when it is violated all the more affects the general peace and order
Art. 257. [246] Non-abridgment of right to self- of society, when collective labor and collective management clash,
organization. It shall be unlawful for any person to restrain, it___(*inaudible) the society. And there is a certain disturbance that is
coerce, discriminate against or unduly interfere with employees created. Sometimes it is very serious disturbance because it involves loss
and workers in their exercise of the right to self-organization. of rights, loss of property, etc. If you read the history of labor in the
Such right shall include the right to form, join, or assist labor United States then you will realize that they were some of the most
organizations for the purpose of collective bargaining through violent years in the US.
representatives of their own choosing and to engage in lawful
concerted activities for the same purpose for their mutual aid and Do you know the term “SIT DOWN STRIKE”?
protection, subject to the provisions of Article 264 of this Code.
Many people think that when you talk about sit down strike, the
Art. 257, 258, 259 and 260 of the Labor Code is Unfair Labor Practice. employees merely sit-down and refuses to move. That is far from the
The last three are kilometric provisions. truth. Some of the most violent strikes were the so-called “sit down
strikes of Detroit”. They occupy the factory. They drive out all the
What is unfair labor practice? supervisors, the superintendents. They barricaded it. And that was
called sit down strikes. When their leaders were dismissed, laid off,
Art. 258. [247] Concept of unfair labor practice and paralyzed the union, that was the answer for the violation of their right
procedure for prosecution thereof. Unfair labor practices to self-organization. It is the most active and violent strike. It is not just
violate the constitutional right of workers and employees to self- sitting down. “Sit down” is a misnomer. The Supreme Court of the United
organization, are inimical to the legitimate interests of both labor States has held that this is an illegal strike.
and management, including their right to bargain collectively and
otherwise deal with each other in an atmosphere of freedom and When you violate the right to self-organization, you threaten the peace
mutual respect, disrupt industrial peace and hinder the and order and the well-being of the general society because the clash
promotion of healthy and stable labor-management relations. between the collective labor and the collective employer flows into
society. Once it flows, society can be affected. That is the reason why
Consequently, unfair labor practices are not only violations of the unfair labor practice, the interference made, the restraint or coercion
civil rights of both labor and management but are also criminal involved in preventing the right to self-organization is eventually
offenses against the State which shall be subject to prosecution transformed into a criminal offense.
and punishment as herein provided.
Unfair labor Practice as a Criminal Action
Subject to the exercise by the President or by the Secretary of ULP (unfair labor practice) may ripen into criminal cause of
Labor and Employment of the powers vested in them by Articles action. You can file a ULP criminal complaint. You go to the City
263 and 264 of this Code, the civil aspects of all cases involving Prosecutor, you file a complaint and then the Prosecutor will hold
unfair labor practices, which may include claims for actual, moral, hearings and then if he finds a prima facie case, it will file a criminal
exemplary and other forms of damages, attorney’s fees and other information. Where will it be filed? It will be filed in the regular courts.
affirmative relief, shall be under the jurisdiction of the Labor Who will be the accused? It will be the employer. You know very well
Arbiters. The Labor Arbiters shall give utmost priority to the that if the employer is a juridical person, can you put it in prison? No.
hearing and resolution of all cases involving unfair labor That is why Art. 259 says:
practices. They shall resolve such cases within thirty (30)
calendar days from the time they are submitted for decision. Art. 259. [248] Unfair labor practices of employers.
xx
Recovery of civil liability in the administrative proceedings shall The provisions of the preceding paragraph notwithstanding, only
bar recovery under the Civil Code. the officers and agents of corporations, associations or
partnerships who have actually participated in, authorized or
No criminal prosecution under this Title may be instituted ratified unfair labor practices shall be held criminally liable.
without a final judgment finding that an unfair labor practice was
committed, having been first obtained in the preceding
So, actually, natural persons are the only ones who can be charged
paragraph. During the pendency of such administrative
criminally in unfair labor practice. So, it is important to identify. Did the
proceeding, the running of the period of prescription of the
Board of Directors vote on this? If they gave (consent) and you can
criminal offense herein penalized shall be considered interrupted:
produce proof of passing a resolution to smash the union, then the
Provided, however, that the final judgment in the administrative
whole board may be indicted for ULP as a criminal offense. The problem
proceedings shall not be binding in the criminal case nor be
is you cannot file the criminal complaint until you have completed the
considered as evidence of guilt but merely as proof of compliance
ULP complaint administrative phase, the administrative aspect. Only
of the requirements therein set forth.
when there is a finding that there has been a ULP committed by the
Labor Arbiter which may be appealed and upon appeal has become final
Now there is an untruthful assertion here. What is that? That unfair labor
and executory, that is the time that you can file a criminal complaint.
practice is a constitutional right to self-organization. We know that it is
not a constitutional right on the same level as the bill of rights. It is not
Q: Can you use the evidence presented in (ULP) administrative
a constitutional right in that it requires legislative implementation. The
proceedings?
bill of rights does not need legislative implementation. From the
Constitution itself, you can draw the rights. It is a source of rights. A: No, you cannot. You must start from zero. You cannot rely on the
findings of the administrative case. The administrative case is just held
to account the lowest quantum of proof. What is that? Substantial organization;

evidence. Whereas now, when you file a criminal case, the standard of
evidence is now the highest. It is proof beyond reasonable doubt. You d. To initiate, dominate, assist or otherwise interfere with
have to start from zero. That’s the difference. the formation or administration of any labor
organization, including the giving of financial or other
You must prove the criminal wrongdoing. The fiscal of course, all he has support to it or its organizers or supporters;
to do is to establish probable cause, prima facie evidence. What is that
prima facie evidence? e. To discriminate in regard to wages, hours of work and
other terms and conditions of employment in order to
1. That a ULP crime has been committed; and encourage or discourage membership in any labor
2. That the accused is probably guilty thereof (that he is involved organization. Nothing in this Code or in any other law
in the wrongdoing, that he consented or voted for it, or shall stop the parties from requiring membership in a
participated in the act or omission). recognized collective bargaining agent as a condition for
employment, except those employees who are already
Once you have that, then you have a prima facie case. members of another union at the time of the signing of
In unfair labor practice, most decided cases by the Supreme Court are the collective bargaining agreement. Employees of an
ULP committed by the employer. The union, not so much. Because if the appropriate bargaining unit who are not members of the
union commits ULP, normally what it does is it goes against its own recognized collective bargaining agent may be assessed
members. It prevents own members from exercising the right to self- a reasonable fee equivalent to the dues and other fees
organization. If it is the employer, the employer is the one who interferes paid by members of the recognized collective bargaining
with, restrains or compels its employees in the exercise of right to self- agent, if such non-union members accept the benefits
organization. under the collective bargaining agreement: Provided,
that the individual authorization required under Article
Three actors involve in Unfair Labor Practice 242, paragraph (o) of this Code shall not apply to the
non-members of the recognized collective bargaining
1. THIRD PARTY agent;
Third party who is neither an employer or employee and the definition f. To dismiss, discharge or otherwise prejudice or
for that is found in Art. 257: discriminate against an employee for having given or
being about to give testimony under this Code;
Art. 257. [246] Non-abridgment of right to self-
organization. It shall be unlawful for any person to restrain, g. To violate the duty to bargain collectively as prescribed
coerce, discriminate against or unduly interfere with employees by this Code;
and workers in their exercise of the right to self-organization.
Such right shall include the right to form, join, or assist labor h. To pay negotiation or attorney’s fees to the union or its
organizations for the purpose of collective bargaining through officers or agents as part of the settlement of any issue
representatives of their own choosing and to engage in lawful in collective bargaining or any other dispute; or
concerted activities for the same purpose for their mutual aid and
protection, subject to the provisions of Article 264 of this Code. i. To violate a collective bargaining agreement.
Any person (not an employer, not union, not a co-worker) to restrain, The provisions of the preceding paragraph notwithstanding, only
coerce, discriminate against or unduly interfere with employees and the officers and agents of corporations, associations or
workers in their exercise of the right to self-organization. So, a third partnerships who have actually participated in, authorized or
party (neither officer nor employee) can commit ULP by: ratified unfair labor practices shall be held criminally liable.
1. Restraining;
2. Coercing; 3. UNION
3. Discriminating against; and
4. Unduly interfering. Q: How about the union? How does the union commit unfair labor
practice?
There are four ways to commit ULP by a third party. But for the
employer, there are only three ways. A: It is under Art. 260:
2. EMPLOYER Art. 260. [249] Unfair labor practices of labor

organizations. It shall be unfair labor practice for a labor
Q: What are the ways for the employer to commit ULP? organization, its officers, agents or representatives:
A: According to Art. 259(a), to interfere with, restrain or coerce. Only a. To restrain or coerce employees in the exercise of their
three ways. right to self-organization. However, a labor organization
shall have the right to prescribe its own rules with
Art. 259. [248] Unfair labor practices of employers. It shall respect to the acquisition or retention of membership;
be unlawful for an employer to commit any of the following unfair
labor practice: b. To cause or attempt to cause an employer to
a. To interfere with, restrain or coerce employees in the discriminate against an employee, including
exercise of their right to self-organization; discrimination against an employee with respect to
whom membership in such organization has been
b. To require as a condition of employment that a person denied or to terminate an employee on any ground other
or an employee shall not join a labor organization or than the usual terms and conditions under which
shall withdraw from one to which he belongs; membership or continuation of membership is made
available to other members;
c. To contract out services or functions being performed by
union members when such will interfere with, restrain c. To violate the duty, or refuse to bargain collectively with
or coerce employees in the exercise of their rights to self- the employer, provided it is the representative of the
employees; not related to work. So, you will be interfering with the right of the
worker to express himself if you would prohibit talk of the union in those
d. To cause or attempt to cause an employer to pay or places which are neutral places.
deliver or agree to pay or deliver any money or other
things of value, in the nature of an exaction, for services How about if the employer will say there shall be no solicitation during
which are not performed or not to be performed, actual working hours? You are at the assembly lines and it is not done
including the demand for fee for union negotiations; in the work station. So, if solicitation is done in the work station, that is
considered violation of the company policy. That is more specific and
e. To ask for or accept negotiation or attorney’s fees from that is a policy that is considered a valid exercise of the managerial
employers as part of the settlement of any issue in prerogatives of the employer. But the employer who puts down a
collective bargaining or any other dispute; or blanket prohibition of union talk within the work premises and during
working hours, that is considered overbroad and has the tendency to
f. To violate a collective bargaining agreement. interfere in the exercise on the right to self-organization.
The provisions of the preceding paragraph notwithstanding, only Remember, Art. 259 (d) says it shall be unlawful if the employer
the officers, members of governing boards, representatives or commits any of the following unfair labor practices:
agents or members of labor associations or organizations who
have actually participated in, authorized or ratified unfair labor Art. 259. xx
practices shall be held criminally liable. xx
(d) To initiate, dominate, assist or otherwise interfere with the
The union may interfere with, it may even discriminate against but he formation or administration of any labor organization, including
cannot restrain or coerce. Only two ways for which the union can commit the giving of financial or other support to it or its organizers or
unfair labor practice. It is only restraint and coercion. supporters;
Three actors and different ways. Common to all these three is restraint If you oppose the union, if you prevent people from joining it, that is
and coercion. The third parties, it can include discriminate or unduly unfair labor practice, that is restraint, that is coercion. If, on the other
interfere. But for the employer it can make interfere with, restrains or hand, management gives the union so many favors. You have an office
coerce. where you keep your equipment or the employer gives cash to the union
to celebrate its Foundation Day, to give money to buy lechon during
Ways to commit ULP their Christmas Party, etc. Any help that will extend the union is
Third Party Employer Union considered interfering in the union’s business because that office, a
1. Restrain 1. Interfere 1. Restrain company can slowly get into the union and make the union dependent
2. Coerce 2. Restrain 2. Coerce upon the employer. So that once dependent upon the employer, it can
3. Discriminate 3. Coerce manipulate the union so that it will no longer bring any cause against
4. Unduly interfere the employer that arises from its individual workers who have
complaints. The union or any of its officer cannot accept aid from the
employer because that is interference. Naglabot labot ka na. You are
Q: What is a YELLOW DOG CONTRACT? interfering in the exercise of the right to self-organization.
A: A yellow dog contract is when an employer requires as a condition of Also, if a company or an employer engages the services of an
employment that a person or an employee shall not join a labor investigator to find out who are the true leaders in the formation of a
organization or such withdraw from one which he belongs. If you make union that is about to ask for a certification election. If you employed
your employee resign from the union or if you make an employee not investigators, you are engaging in the act of interference.
join a union as a condition for employment, that is a yellow dog contract.
If you question the employee with regard to his union activities, that is
Q: What is FEATHER BEDDING? also interference. If the employer asks, “Why were you absent
yesterday?” and the employee says, “I joined an organizational
A: Feather-bedding is to initiate, dominate, assist or otherwise interfere meeting.” Then the employer says, “Nangita ba ka ug labad sa ulo? Are
in the formation, administration of any labor organization including the you looking for trouble? We have been without a union for how many
giving of financial or other support to it or its organizers or supporters. years and now you are going to create something which is conflict-
Graft and corruption, in other words, if the employer is to bribe the union ridden. Magdala man jud na ug kagubot. Is that you’re intent?”. Aha!
by helping it. That is feather bedding and that is an unfair labor practice. That remark alone, that rhetorical question, that is interference in the
right to self-organization.
To restrain or coerce, they are largely behavioral. Since this is a special
law, a special criminal law, intent is not required. You do not have to October 8, 2020 Part 1B by Louis Palma Gil
prove intent. You just have to prove the acts or omissions which
constitute restraint and coercion. And they are readily visible. You can When can the Employer (ER) commit unfair labor practice by
see it. Now, what is more difficult to prove is interference, and especially mere speech?
interference by way of speech.
 When the ER engages in speech that is containing a promise
INTERFERENCE BY THE EMPLOYER of reward or threat of reprisal.
Q: Can the rules and policies given by an employer in the workplace Example:
prove to be an exercise of restraint or coercion or interference in the
exercise of the right to self-organization? Management says to the employee: (EE) what is the union really
after, or what are you after by joining the union, do you want a
A: Yes. If an employer prohibits solicitation for union membership or pay increase? How much pay increase? Just tell me because I can
campaigning for a union, if it prohibits that within the workplace and get it from top management for as long as no more union. You
during the working hours, is that valid? The answer is NO. It is overly don't need a union to ask for an increase I can do it for you.
broad. Because within the workplace, there are places where employees
can talk almost anything under the sun. The so-called neutral places like What is that? That is Interference because there is a promise of
in the comfort rooms, the cafeterias, in the lobby. When workers, when reward. A speech that contains a promise of reward it is no longer
they meet, it is a practice that you can talk about anything even if it is
protected by the constitutional right of freedom of speech. That right That is not considered discriminatory on other unions. Therefore, no
cannot be altered, reduced, abridged, by legislation. Unfair Labor Practice (ULP).
Example No. 2: Another Situation: Employer is not entertaining his grievance against
the company. Now, because ER does not do that, complainant-Employee
What if the ER says: If the company finds out that you are organizing says that he or she is a victim of Unfair Labor Practice (ULP)? You cannot
a union you will live the day and regret that you were ever born. do that! You are NOT a victim of Unfair Labor practice just because you
are mandated to contribute to the union an equivalent amount by what
What is that? That is speech containing a threat even if it is a veiled
is given by the members, because you receive the benefits provided for
threat. That is not protected freedom of speech. The ER cannot hide
in the CBA that was negotiated by the union. So, the union is not
beyond the privileged constitutional right of freedom of speech.
discriminating against you by making you pay.
You cannot say something good, neither can you say something bad
Art. 248. Unfair labor practices of employers. It shall be
about the union. Either of these two involve unfair labor practice. The
unlawful for an employer to commit any of the following unfair labor
only way you can escape unfair labor practice is by putting it down in
practice:
the collective bargaining agreement, and the union agrees with it. For
instance, creating a special place for their office, creating a bulletin (f) To dismiss, discharge or otherwise prejudice or discriminate
board for the exclusive use of the union - and so on. against an employee for having given or being about to give
testimony under this Code;
If you cannot commit benefits for all the employees then you can put a
general clause in the CBA that management agrees to afford whatever
Note: You cannot retaliate against someone who files a complaint that
assistance or help it can extend to the Employees or to the union - it
his right to self-organization has been violated. You cannot file a
may be monetary, spiritual, moral, emotional. It can be any; Who
complaint against an employee not member of union but within the
determines it? It is the union. Provided, that union is in agreement to
bargaining unit who complains.
receive those kinds of assistance or help from the Employer. When the
employer helps the union in this manner, it is no longer unfair labor Even with or without a union you cannot fire an employee for filing a
practice. complaint.
The CBA may provide that the EE who joins the workforce, may not be You cannot fire an employee for assisting in the filing of a complaint
eligible to join the union because the union is a union of regular by acting as a witness.
employees- rank and file, daily paid, and production workers.
You cannot discipline an EE for doing that as it would be discriminatory
Problem: and is considered ULP.
Now, the CBA may provide, as agreed upon by union and management,
that the EE need not join union before he can enter management but Rule: If you are discharged by the employer for your union activity of
once he is made regular he must join the exclusive bargaining agent. Is trying to form a union that is retaliatory dismissal. Moral damages are
management committing Unfair Labor Practice? Because now the Union owing because of the manner of dismissal. The manner of dismissal is
is siding with the exclusive bargaining agent, incumbent, who is already grounded on your exercise of your right to self-organization which is
in the last 60 days of the CBA. Is management discriminating on other protected by Statute. You should not be penalized for it. That is why you
unions because it does not give them this same provision? can claim damages.
Answer: Rule: There is a difference between dismissal due to union

The answer is NO. Because 248(e) allows him to discriminate. activity and dismissal without any grounds at all.
Art. 248. Unfair labor practices of employers. It shall be  Unfair Labor Practice dismissal prescribes in 1 YEAR.
unlawful for an employer to commit any of the following unfair labor  Regular Ordinary Dismissal prescribes in 4 YEARS.
practice:
There is a difference, if it is dismissal because of union activity, you right
(e) To discriminate in regard to wages, hours of work and other of action prescribes in 1 year. But, if you file a complaint for ordinary
terms and conditions of employment in order to encourage or dismissal, where there is no union or exclusive bargaining agent
discourage membership in any labor organization. Nothing in this involved, you are just fired and there is no just or authorized cause.
Code or in any other law shall stop the parties from requiring Then the prescriptive period will be 4 years from time right of action
membership in a recognized collective bargaining agent as a accrues.
condition for employment, except those employees who are already
members of another union at the time of the signing of the collective Art. 248. Unfair labor practices of employers. It shall be
bargaining agreement. Employees of an appropriate bargaining unit unlawful for an employer to commit any of the following unfair labor
who are not members of the recognized collective bargaining agent practice:
may be assessed a reasonable fee equivalent to the dues and other
fees paid by members of the recognized collective bargaining agent, (g) To violate the duty to bargain collectively as prescribed by this
if such non-union members accept the benefits under the collective Code;
bargaining agreement: Provided, that the individual authorization
required under Article 242, paragraph (o) of this Code shall not apply When does the duty to bargain arise?
to the non-members of the recognized collective bargaining agent;
1. when there is already an Exclusive Bargaining Agent (EBA);
2. and the EBA draws up written bargaining proposals;
It can collect union dues from the members of these labor organization.
3. and that written set of bargaining proposals you serve a
It can even mandate that non-union members within the bargaining unit
copy to the employer;
will pay the same amount of contribution as members through their own
union, even if they are not members of the exclusive bargaining agent. 4. Employer must within 10 days either:
o agree to the proposal OR
o write down his counter proposals and submit it to

union, OR a. To interfere with, restrain or coerce employees in the
o set dates for actual negotiation between union and exercise of their right to self-organization;
management.
b. To require as a condition of employment that a person
Situation/Illustration: or an employee shall not join a labor organization or
shall withdraw from one to which he belongs;
When the union adamantly insists that a very suppressive and cruel
supervisor should be immediately dismissed, and the management
c. To contract out services or functions being performed by
delays because according to management it still has the duty to union members when such will interfere with, restrain
investigate this erring employee because if I don't investigate then I will or coerce employees in the exercise of their rights to self-
be violating the Labor Code which says that an employee that is being organization;
disciplined must be given ample opportunity to be heard and produce
witnesses in his favor. d. To initiate, dominate, assist or otherwise interfere with
the formation or administration of any labor
You cannot just penalize an employee that is reported to you for wrong organization, including the giving of financial or other
doing without first following the procedure of the Labor Code. Then the support to it or its organizers or supporters;
employee after being informed of allegations against him and being
given his day to defend himself, and the investigating committee has e. To discriminate in regard to wages, hours of work and
submitted its recommendations of facts to the management and they other terms and conditions of employment in order to
have all signed that- then there has been compliance with the Labor encourage or discourage membership in any labor
Code. organization. Nothing in this Code or in any other law
shall stop the parties from requiring membership in a
If you don't follow that and employer proceeds immediately to dismiss recognized collective bargaining agent as a condition for
the employee - what is that? That is Illegal Dismissal! employment, except those employees who are already
members of another union at the time of the signing of
October 8, 2020 Part 2A by Christine Paulma the collective bargaining agreement. Employees of an
appropriate bargaining unit who are not members of the
ART. 258. Concept of unfair labor practice and procedure recognized collective bargaining agent may be assessed
for prosecution thereof. – Unfair labor practices violate the a reasonable fee equivalent to the dues and other fees
constitutional right of workers and employees to self- paid by members of the recognized collective bargaining
organization, are inimical to the legitimate interests of both labor agent, if such non-union members accept the benefits
and management, including their right to bargain collectively and under the collective bargaining agreement: Provided,
otherwise deal with each other in an atmosphere of freedom and that the individual authorization required under Article
mutual respect, disrupt industrial peace and hinder the 242, paragraph (o) of this Code [this actually refers to
promotion of healthy and stable labor-management relations. Article 241 par (o), renumbered as Article 250 par. (o) of
this Code] shall not apply to the non-members of the
Consequently, unfair labor practices are not only violations of the recognized collective bargaining agent;
civil rights of both labor and management but are also criminal
offenses against the State which shall be subject to prosecution
and punishment as herein provided. f. To dismiss, discharge or otherwise prejudice or
discriminate against an employee for having given or
Subject to the exercise by the President or by the Secretary of being about to give testimony under this Code;
Labor and Employment of the powers vested in them by Articles
263 and 264 (renumbered as Articles 278 and 279, respectively) of g. To violate the duty to bargain collectively as prescribed
this Code, the civil aspects of all cases involving unfair labor by this Code;
practices, which may include claims for actual, moral, exemplary
and other forms of damages, attorney’s fees and other affirmative
relief, shall be under the jurisdiction of the Labor Arbiters. The h. To pay negotiation or attorney’s fees to the union or its
Labor Arbiters shall give utmost priority to the hearing and officers or agents as part of the settlement of any issue
resolution of all cases involving unfair labor practices. They shall in collective bargaining or any other dispute; or
resolve such cases within thirty (30) calendar days from the time
they are submitted for decision. i. To violate a collective bargaining agreement. [note that
under Article 274 (previously Article 261), except
Recovery of civil liability in the administrative proceedings shall flagrant and/or malicious refusal to comply with
bar recovery under the Civil Code. economic provisions, CBA violations are mere
grievances, not ULP, thus subject to grievance
No criminal prosecution under this Title may be instituted machinery and voluntary arbitration]
without a final judgment finding that an unfair labor practice was
committed, having been first obtained in the preceding The provisions of the preceding paragraph notwithstanding, only
paragraph. During the pendency of such administrative the officers and agents of corporations, associations or
proceeding, the running of the period of prescription of the partnerships who have actually participated in, authorized or
criminal offense herein penalized shall be considered interrupted: ratified unfair labor practices shall be held criminally liable.
Provided, however, that the final judgment in the administrative
proceedings shall not be binding in the criminal case nor be
considered as evidence of guilt but merely as proof of compliance UNFAIR LABOR PRACTICE OF EMPLOYERS
of the requirements therein set forth.
Refusal to Bargain
Refusal to bargain is unfair labor practice.
ART. 259. Unfair labor practices of employers. – It shall be An example of refusal to bargain as unfair labor practice committed by
unlawful for an employer to commit any of the following unfair the employer: if the employer refuses to sit down and negotiate over a
labor practice:
mandatory subject of bargaining, then he commits unfair labor practice. executing a contract incorporating such agreement, if requested by
That is refusal to bargain. either party.
For example, the employer receives from the exclusive bargaining agent From the over-all conduct of petitioner company in relation to the
a list of demands that would constitute the beginning of collective task of negotiation, there can be no doubt that the Union has a valid
bargaining. The employer does not acknowledge receipt of the written cause to complain against its (Company's) attitude, the totality of
demands or written bargaining proposals, he just acts as if nothing which is indicative of the latter's disregard of, and failure to live up
happened; he does not sit down – then, that is unfair labor practice. to, what is enjoined by the Labor Code — to bargain in good faith.
That is what happened in Kiok Loy v NLRC GR No. L-54334 (1986).
The case at bar is not a case of first impression, for in the Herald
If management says, I don’t want to talk about this specific subject Delivery Carriers Union (PAFLU) vs. Herald Publications the rule had
matter. What is that specific subject matter? For example, retirement been laid down that "unfair labor practice is committed when it is
benefits: "I don't want to talk about it." "The retirement benefits that shown that the respondent employer, after having been served with
we discussed in other work places that are under us, it is here, let us a written bargaining proposal by the petitioning Union, did not even
include it in the CBA. Let's not discuss it anymore." The union says, "we bother to submit an answer or reply to the said proposal This doctrine
have to discuss it." Management says, "this is already a very good was reiterated anew in Bradman vs. Court of Industrial Relations
package. If we change this, we have to change the other 13 CBAs! We wherein it was further ruled that "while the law does not compel the
cannot do that! This is just one. Let's just let this stay. We will not talk parties to reach an agreement, it does contemplate that both parties
about it anymore, too much trouble!" Union says, "no, we still have to will approach the negotiation with an open mind and make a
discuss it. This is a mandatory subject of bargaining." reasonable effort to reach a common ground of agreement.
Is that refusal to bargain?
No, that is not refusal to bargain. The position that I will not bargain UNION OF FILIPRO EMPLOYEES v. NESTLE
with this topic is just as legitimate as the position that says we should GR No. 158930-31 (2006)
bargain and talk about this topic.
FACTS: In a letter denominated as a Letter of Intent, the Presidents
What is the difference between Kiok Loy and Nestle case? The difference of the Alabang and Cabuyao Divisions of UFE-DFA-KMU informed
is Kiok Loy just went dedma, it’s just like talking to a wall. In Nestle, he Nestlé of their intent to "open our new Collective Bargaining
talked about - bargained, discussed - even if not talking about the Negotiation for the year 2001-2004”. Nestlé acknowledged receipt of
subject matter. Nestle did not stop talking. He’s talking about stopping the aforementioned letter. It also informed UFE-DFA-KMU that it was
to talk. He really did not stop talking. He was still bargaining. That's the preparing its own counter-proposal and proposed ground rules that
difference. When you play stonewall, that is the type of refusal to shall govern the conduct of the collective bargaining negotiations.
bargain. That is unfair labor practice.
In another letter addressed to the UFE-DFA-KMU (Cabuyao Division),
KIOK LOY v. NLRC Nestlé underscored its position that "unilateral grants, one-time
GR No. L-54334 (1986) company grants, company-initiated policies and programs, which
include, but are not limited to the Retirement Plan, Incidental Straight
FACTS: In a certification election, the Pambansang Kilusang Duty Pay and Calling Pay Premium, are by their very nature not
Paggawa (Union), a legitimate late labor federation, won and was proper subjects of CBA negotiations and therefore shall be excluded
subsequently certified by the BLR as the sole and exclusive therefrom."
bargaining agent of the rank-and-file employees of Sweden Ice
Cream Plant (Company). Thereafter, dialogue between the company and the union ensued.
The Union furnished the Company with two copies of its proposed Nestlé, claiming to have reached an impasse in said dialogue,
collective bargaining agreement. At the same time, it requested the requested the NCMB to conduct preventive mediation proceedings
Company for its counter proposals. Eliciting no response to the between it and UFE-DFA-KMU. Nestlé alleged that despite fifteen (15)
aforesaid request, the Union again wrote the Company reiterating its meetings between them, the parties failed to reach any agreement
request for collective bargaining negotiations and for the Company on the proposed CBA.
to furnish them with its counter proposals. Both requests were
ignored and remained unacted upon by the Company. Notice of Strike was filed by the UFE-DFA-KMU predicated on Nestlé's
alleged unfair labor practices i.e., bargaining in bad faith in that it
Conciliation proceedings followed but all attempts towards an was setting pre-conditions in the ground rules by refusing to include
amicable settlement failed prompting the BLR to certify the case to the issue of the Retirement Plan in the CBA negotiations.
the NLRC. The NLRC rendered its decision finding Company guilty of
unjustified refusal to bargain. ISSUE: Whether Nestle is guilty of unfair labor practice. – NO.
ISSUE: Whether or not the finding of unfair labor practice for failure RULING: In its letter to UFE-DFA-KMU, though Nestlé underscored
to bargain is proper. – YES. its position that "unilateral grants, one-time company grants,
company-initiated policies and programs, which include, but are not
RULING: Collective bargaining which is defined as negotiations limited to the Retirement Plan, Incidental Straight Duty Pay and
towards a collective agreement, is one of the democratic frameworks Calling Pay Premium, are by their very nature not proper subjects of
under the New Labor Code, designed to stabilize the relation between CBA negotiations and therefore shall be excluded therefrom," such
labor and management and to create a climate of sound and stable attitude is not tantamount to refusal to bargain.
industrial peace. It is a mutual responsibility of the employer and the
Union and is characterized as a legal obligation. So much so that Construing arguendo that the content of the aforequoted letter laid
Article 249, par. (g) of the Labor Code makes it an unfair labor down a pre-condition to its agreement to bargain with UFE-DFA-KMU,
practice for an employer to refuse "to meet and convene promptly Nestlé's inclusion in its Position Paper of its proposals affecting other
and expeditiously in good faith for the purpose of negotiating an matters covered by the CBA contradicts the claim of refusal to
agreement with respect to wages, hours of work, and all other terms bargain or bargaining in bad faith.
and conditions of employment including proposals for adjusting any
grievance or question arising under such an agreement and Violate the Duty to Bargain
When do you violate the duty to bargain? membership or continuation of membership is made
You violate a collective bargaining agreement by gross violation of the available to other members;
CBA. What is gross violation? It must involve an economic provision in
the CBA. And it must be flagrant and/or malicious refusal to comply with c. To violate the duty, or refuse to bargain collectively with
an economic issue. Make sure you have the adjective – flagrant and/or the employer, provided it is the representative of the
malicious refusal to comply with an economic issue. employees;
When the conservator appointed by the Central Bank of a bank that was d. To cause or attempt to cause an employer to pay or
in financial rehabilitation, when that conservator refuse to grant and deliver or agree to pay or deliver any money or other
release to the members of the union, the provision in the CBA which things of value, in the nature of an exaction, for services
granted the members of the union new uniforms, is that a violation of which are not performed or not to be performed,
the collective bargaining agreement? including the demand for fee for union negotiations;
Does it involve economic provision? – YES. e. To ask for or accept negotiation or attorney’s fees from
employers as part of the settlement of any issue in
That provision talks about something that has a peso value. The moment collective bargaining or any other dispute; or
there is a provision in the CBA that talks about a peso value which could
be beneficial, you have an economic provision. f. To violate a collective bargaining agreement. [note that
under Article 274 (previously Article 261), except
For instance, the CBA will say, “each year the management agrees to flagrant and/or malicious refusal to comply with
hold a recognition day by which all the employees who reach five years, economic provisions, CBA violations are mere
ten years, etc. of service are recognized.” It does not give any price, it’s grievances, not ULP, thus subject to grievance
just recognition. machinery and voluntary arbitration]
Suppose the company fails to observe that day - to recognize - is that a The provisions of the preceding paragraph notwithstanding, only
violation of the CBA? – NO. the officers, members of governing boards, representatives or
agents or members of labor associations or organizations who
It’s just recognition. It is just psychic award, it’s not monetary award. have actually participated in, authorized or ratified unfair labor
It's different when it says they recognize their service and those who practices shall be held criminally liable.
have served the company for five years will receive P5,000, those who
have served for ten years will receive P10,000. That's different! That's
already an economic provision. If it is just recognition: "the following UNFAIR LABOR PRACTICE ON THE PART OF LABOR UNION
person are recognized. Please stand those who have served for five
years palakpakan nato!" Is that economic benefit kanang palakpak? You Take note that the labor union can interfere in the exercise of the right
might say that that's not an economic benefit but there are people who to self-organization of employees. They can interfere - they can
love it. Those politicians who run, they love the sound of their names approach them and they can convince them. Management cannot
and the acclimation of the public; even if they are already sick and tired convince and solicit support for a particular union but the union people,
and dying. They want to appear on stage to hear the applause. But, that they can solicit support for themselves who are a union. That is not
is not economic benefit, that is a sickness. There are people who are unfair labor practice. They can campaign, visit your family, etc. to win
sick and addicts of that. They will do anything to be applauded. over an employee to the union.
Payment of Negotiation or Attorney’s Fees Promise of Reward

When the union asks for attorney’s fees or negotiation fees, that is also Now, can they make speech which promise reward or threaten reprisal?
unfair labor practice. For an employer, when the employer pays Yes, they can do that. They can give a speech to all the workers. They
negotiation fees or attorney's fees of the union or its officers or agents will say, one of our demands if we become exclusive bargaining unit, if
as part of a settlement of an issue in collective bargaining, that is unfair you choose us is, we will ask a car for each one of you. Management
labor practice. will have to discuss that with us how to grant each one of you a car. So
you better practice driving already.
What is the difference between that and signing bonus?
Signing bonus of a CBA is to pay everybody for ratifying the CBA. Do you think the company will grant to rank-and-file workers cars? Not
The difference is the signing bonus is given to everyone in the bargaining even the maker of cars can grant that to their assembly line. Is that not
unit and all members of the union while to pay negotiation fees or false speech and by that reason unfair labor practice? No, that is not
attorney's fees is only given to the officers or to the union itself. It is not unfair labor practice.
given to everyone. It is not a benefit. It is a bribe. Whereas the signing
bonus, because it is given to everybody, becomes a bona fide economic According to SC, that is just exaggeration in trade. Pretty much like a
benefit to the bargaining unit. salesman is allowed to make certain exaggerations about his product
that he wants to sell. That is not unfair labor practice in which union
ART. 260. Unfair labor practices of labor organizations. – organizers may be held liable for unfair labor practice.
It shall be unfair labor practice for a labor organization, its
officers, agents or representatives: Threats
Can they make threats? One of the leaders of the union will tell those
a. To restrain or coerce employees in the exercise of their that he leads - let’s say there are five people running this weaving
right to self-organization. However, a labor organization machine of a textile factory and the chief, the one who is in charge of
shall have the right to prescribe its own rules with the machine will tell the lowest worker, “you are the only one left who
respect to the acquisition or retention of membership; has not joined the union. All of us have joined. My assistant, my thread
feeder. You are not with us so how can we be with you? If you happen
b. To cause or attempt to cause an employer to to be stuck there, you know we will not help you. We will just whistle
discriminate against an employee, including and go home and leave you there where you are stuck."
discrimination against an employee with respect to
whom membership in such organization has been Is that not a threat? Is that unfair labor practice because you are
denied or to terminate an employee on any ground other threatening? – NO. It is not yet a threat that is actionable. It is part of
than the usual terms and conditions under which
interference speech which the union or its followers are allowed to Article 219(o). “Strike” means any temporary stoppage of work
speak. by the concerted action of employees as a result of an industrial
or labor dispute.
What kind of threat is not allowed? That threat that already constitutes
a crime. If that which you threaten your fellow worker constitutes a Article 219(p). “Lockout” means any temporary refusal of an
crime, then that is not only unfair labor practice speech, that is grave employer to furnish work as a result of an industrial or labor
threat under the RPC. So that is unfair labor practice. dispute.
Suppose you tell this worker, "Di man kaha ka muapil sa union, we know Article 219(l). “Labor dispute” includes any controversy or
where you live. Wala ka kabalo kalit lang mu dasmag unya pahungawan matter concerning terms and conditions of employment or the
na imong kilid ug ice pick, impas ka." What is that? That is already a association or representation of persons in negotiating, fixing,
threat to endanger his life. That is a threat to assassinate him. That is maintaining, changing, or arranging the terms and conditions of
constitutive of a crime. Patyon nimo siya? That is your grave threat, that employment, regardless of whether the disputants stand in the
is actionable. That is grave threat because murder is a serious offense. proximate relation of employer and employee.
Wrongful Use of Union Security Clause A labor dispute is a controversy arising out of
To cause or attempt to cause an employer to discriminate against an  exercise of the right to self-organization; or
employee, including discrimination against an employee with respect to  the process of determining by negotiation, the collective
whom membership in such organization has been denied or terminating bargaining agreement.
an employee on any ground other than the usual terms and conditions
under which membership or continuation of membership is made Strikes have a Technical Meaning
available to other members. Not any kind of dispute is a labor dispute. Dispute as to the price of oil,
dispute as to the price of rice, and therefore the jeepney drivers call a
That is wrongful use of the union security clause. When the union general strike – that is not the technical meaning of strike, because it is
security clause is agreed upon in the CBA, the essential condition here not as a result of a labor of dispute. The price of oil is not a matter of
is once the employee is no longer a member of the union – he has been employer-employee relationship, it is a political matter. It is not a labor
expelled or has severed his relations from the union – then the union dispute. So, everybody calls it a “jeepney strike” but if you have
can compel management to also terminate him from work because studied law it is far from what is a “strike” because it does not comply
membership in the union is a condition for continued service in the with an essential requisite of strike – the existence of a labor dispute.
company.
Seat of the Right to Strike
When the union unlawfully causes the employer to terminate an Where is the seat of the right to strike? Is it the individual workers
employee because he has been expelled from the union and that collectively? Or is it the juridical person which is the legitimate labor
expulsion is wrongful, irregular, then the officers of the union who are organization? Note that the legitimate labor organization’s personality is
responsible for that are guilty of unfair labor practice. If you make a separate and distinct from its members. In the definition, it is in the
mistake by asking management to sever him, because that is your power collectively of the workers or the members of the union because it says,
under the union security clause, you are committing unfair labor “temporary stoppage of work by the concerted action of the employees”.
practice. That is the definition of strike.
More or less, that is unfair labor practice of labor organizations. But then, when you take a look at Article 278(b), it says:
Unfair Labor Practice Cannot Be Compromised Article 278(b). Workers shall have the right to engage in
concerted activities for purposes of collective bargaining or their
Now let me just point out a very salient feature. mutual benefit and protection. The right of legitimate labor
organizations to strike and picket and of employers to
Unfair labor practice complaints cannot be compromised. Illegal lockout, consistent with national interest, shall continue to be
dismissal can be comprised. Labor standards complaints, money claims, recognized and respected. However, no labor union may strike and
they may be compromised. Unfair labor practice cannot be compromised no employer may declare a lockout on grounds involving inter-
according to the Supreme Court. Why? Because they ripen into criminal union and intra-union disputes.
offenses and criminal offenses cannot be compromised.
“The right to legitimate labor organization” seems to be vested in the
How do you dismiss unfair labor practice? You dismiss it in the same personality of the juridical person of the legitimate labor organization.
way that you dismiss a criminal complaint. And that is by failure to In the Primer, there is this sentence “only the exclusive bargaining agent
prosecute. When the prosecution, that is the State, manifests to the has the right.”
judge that he cannot go ahead with the case because he has no more
witnesses; the witnesses refused to cooperate, he cannot find them, Should be an Exclusive Bargaining Agent
etc., failure to prosecute is the ground for the judge to dismiss the case. A legitimate labor organization is not the exclusive bargaining agent, it
can file a petition for certification election, but when it is elected it is not
That is the same with unfair labor practice. If the victim refuses to only a legitimate labor organization, but it also it becomes the exclusive
testify, what can the Labor Arbiter do? (Because it is the Labor Arbiter bargaining agent and the Department of Labor states that it shall be the
that has jurisdiction over ULPs) What can he do? Then, the Labor Arbiter “exclusive bargaining agent” can call a strike and all other unions that
has no choice but to dismiss the case on the ground of failure to operates in the bargaining unit (like those which run and lost) cannot
prosecute. call a strike, only the exclusive bargaining agent.
October 8, 2020 Part 2B by Reginald Matt Santiago When LLO but not EBA can Strike
When can the legitimate labor organization call a strike? It can call a
strike by submission when there is as yet no exclusive bargaining
STRIKES AND LOCKOUTS agent. For example, when they are organizing into a union and then the
management opposes such and throws out and dismisses the union
Definitions leaders and the existence of the union is threatened, then they can file
a Notice of Strike then they can go strike even if they are not yet the
exclusive bargaining agent. The right to self-organization is being Freedom of speech – picketing – very difficult to restrain and obtain an
assaulted by the management. injunction and very difficult to obtain a restraining order as it is part of
freedom of speech.
There is a conflict as to who possesses the right to strike, is it the
unions (those with juridical personality) or is it in collective individuals? Non-threatening, disciplined and not too boisterous picketing to inform
the controversy is well within the protection of the freedom of speech.
That particular issue comes to the point when, for instance, there is no So long as you do not threaten, intimidate the customers of a
EBA, there is union organizing and there is a petition for certification supermarket, and carry placards silently or give handbills. But when you
election (PCE), but the management opposes the forming of the union. threaten, that is no longer freedom of speech.
The union, the people who in the bargaining unit, hastily call a federation
to issue it a Local Charter Certification so that they will have provisional How about strikes?
personality to file a PCE.
GENERAL RULE: Strikes cannot be enjoined under the Constitution.
Let us say they affiliate with National Federation of Labor (NFL), then
they file a Notice, that the leaders are being terminated. Then other EXCEPTION: There are many instances under the law that allows that
people, do you want to be a member of the “radical left?” because you strikes may be enjoined such as when the industry is indispensable to
are associating yourself with a radical group. Suppose the workers the national interest, which case the Secretary of Labor can assume
change their mind and they withdraw from the NFL, they form with the jurisdiction over the dispute, decide the case himself or certify it to the
aid of the DOLE an independent union and they register and obtained NLRC and all strikes are enjoined, whether contemplated or in progress,
registration as an Independent Labor Organization – now they filed a the strike must be stopped and they shall return to work and the
Notice of Strike, do they need to file a Notice of Strike? employer must [allow them to return to work].
If they file a second notice of strike is made, another cooling off period October 15, 2020 Part 1A by Alexa Marie Singanon
will be tolled – in the meantime the people are already dispersing
because they are afraid. That all depends on who has the seat of the Review
right to strike. We are already in the topic of Strike, we have already discussed the
requisites for a Strike.
 If it’s the union, they have to file another Notice of Strike, We are already in:
since this is a new personality, since the old one is gone. This
is a new person. 1. Art. 278 – Strikes, Picketing and Lockouts
 But if is the collective, the same people but with a different 2. Art. 279 – Prohibited Activities
organization with a separate juridical personality, since it is 3. Art. 280 – Improved Offer Balloting
the same people there is no need to file a Notice of Strike.
We have gone through the 14 requisites of strike:
Is there is a decision of the Supreme Court as to such issue?
 There is as yet, no decision. Maybe because they have not A. Procedural
really met that in their practice. 1. Negative
2. Positive
B. Substantial
Strike vis-à-vis Picketing 1. Negative
By concerted activity, it is meant “collective.” You cannot go on strike if 2. Positive
you are only one person. How can you stop work if you are only one? It
must be a collective who must go on strike. Now that is important to We have gone through Notice of Strike, Cooling-Off Period, Strike Vote,
distinguish it from picketing. Waiting Period, and all the other requisites of a Strike.
Picketing can be collective or it can be individual, in fact, there is no What happens if you fail to comply with one or more requisites? The
thing as freedom of speech of the collective, there is individual freedom strike is illegal – a strike that does not conform with any of the requisites.
of speech. When you picket, it is an exercise of freedom of speech. This And mind you, the requisites are interpreted strictly against labor in
is protected speech. cases of doubt.
The right to picket, since it is derived from the freedom of speech, is a For instance:
privileged right. The right to strike, since it is protected by the State
is a protected right. If the cooling-off period for a ULP Strike is 15 days and you go on strike
on the 14th day from the filing of the notice of strike, so you lack one
The freedom of speech to carry placards cannot be subject to day, what is the effect? The strike is illegal. There’s already 1 or 2
preliminary requirements and conditions before you can exercise it. decided cases on that. The SC says:
Remember of the pronouncement of the Supreme Court, quoting Justice
Douglas of the US Supreme Court that “any law that proposes any form “The requisites are interpreted strictly against labor because
of censorship, membership or any means that curtail the freedom of a strike disrupts general society, it has a tendency to create
speech comes before this Court with a heavy burden of proving its an instability and disturbs peace and order.”
validity.”
So therefore, the benefit of the doubt is not granted to the strikers
That is the only kind of law that is not presumed regular and valid. If because a strike is a disturbance to the society. That is the only provision
you curtail the freedom of speech, you have the burden to show that in the Labor Code that is not interpreted in favor of labor in cases of
the law is valid. It is presumed invalid if it curtails freedom of speech. doubt.
One can classify but one cannot prohibit the showing of the movie by
mere classification. The one with the final say is the courts. Only the STRIKES AND LOCKOUTS
courts have the final say whether the classification is valid as to put the Strikes in general cannot be enjoined. Strikes are included within the
movie with the form of speech outside from the protection of freedom Protection to Labor Clause because Art. XIII includes the Right to Strike
of speech (e.g. pornography and libel). in accordance with law.
Restraining Strikes and Picketing
“The State shall guarantee the right of protection to labor 2. That substantial and irreparable injury to
including security of tenure, just and humane conditions of complainant’s property will follow;
work, collective bargaining and negotiations and the right to
strike in accordance with law.” 3. That as to each item of relief to be granted, greater
injury will be inflicted upon complainant by the denial
The right to strike is protected by law. Because of that, it is difficult to of relief than will be inflicted upon defendants by the
obtain an injunction order or a restraining order that is aimed at the granting of relief;
strike.
4. That complainant has no adequate remedy at law; and
Injunction against Prohibited Activities
What can you get if there is an objectionable portion of the strike? Like 5. That the public officers charged with the duty to protect
when the strikers are engaged in prohibited activity? complainant’s property are unable or unwilling to
furnish adequate protection.
You can go to the NLRC to obtain an Injunction Order against the
prohibited activity and not against the strike. That is the normal Such hearing shall be held after due and personal notice thereof
procedure. has been served, in such manner as the Commission shall direct,
to all known persons against whom relief is sought, and also to
Example: the Chief Executive and other public officials of the province or
city within which the unlawful acts have been threatened or
Suppose the strikers barricade the entrance of the premises. The committed, charged with the duty to protect complainant’s
employer cannot deliver things or bring out things from the premises. property: Provided, however, that if a complainant shall also
They should have the privilege as owner to enter and leave their allege that, unless a temporary restraining order shall be issued
property, is it not? That is part of ownership. So the picket must be a without notice, a substantial and irreparable injury to
moving picket, they must walk up and down, making use of the sidewalk complainant’s property will be unavoidable, such a temporary
just like anybody else. They cannot be stationary and start putting up restraining order may be issued upon testimony under oath,
barricades to the entrance and exit of the workplace. sufficient, if sustained, to justify the Commission in issuing a
temporary injunction upon hearing after notice. Such a temporary
If they barricade, what happens? restraining order shall be effective for no longer than twenty (20)
days and shall become void at the expiration of said twenty (20)
Normally, what the counsel for the employer will do is they will file with days. No such temporary restraining order or temporary
the Labor Arbiter a Complaint against the union for Staging an Illegal injunction shall be issued except on condition that complainant
Strike. And then with that filed, they go up to the NLRC in Cagayan de shall first file an undertaking with adequate security in an
Oro to file a Petition for a Restraining Order to prevent the union from amount to be fixed by the Commission sufficient to recompense
further barricading the entrance and exit of the employer’s premises. those enjoined for any loss, expense or damage caused by the
improvident or erroneous issuance of such order or injunction,
Why is that? including all reasonable costs, together with a reasonable
attorney’s fee, and expense of defense against the order or against
Because the Labor Arbiter has no power to issue an injunction. the granting of any injunctive relief sought in the same proceeding
and subsequently denied by the Commission.
Who has the power to issue the injunction?
The undertaking herein mentioned shall be understood to
It is only the Commission, the NLRC. That is found in Art. 225(e), which constitute an agreement entered into by the complainant and the
says: surety upon which an order may be rendered in the same suit or
proceeding against said complainant and surety, upon a hearing
ART. 225. [218] POWERS OF THE COMMISSION. – The to assess damages, of which hearing, complainant and surety
Commission shall have the following powers: shall have reasonable notice, the said complainant and surety
submitting themselves to the jurisdiction of the Commission for
xxx that purpose. But nothing herein contained shall deprive any
party having a claim or cause of action under or upon such
(e) To enjoin or restrain any actual or threatened commission of undertaking from electing to pursue his ordinary remedy by suit
any or all prohibited or unlawful acts or to require the at law or in equity: Provided, further, That the reception of
performance of a particular act in any labor dispute which, if not evidence for the application of a writ of injunction may be
restrained or performed forthwith, may cause grave or irreparable delegated by the Commission to any of its Labor Arbiters who
damage to any party or render ineffectual any decision in favor of shall conduct such hearings in such places as he may determine
such party: Provided, That no temporary or permanent injunction to be accessible to the parties and their witnesses and shall
in any case involving or growing out of a labor dispute as defined submit thereafter his recommendation to the Commission.
in this Code shall be issued except after hearing the testimony of
witnesses, with opportunity for cross-examination, in support of So it is the Commission that has the power to issue a restraining order,
the allegations of a complaint made under oath, and testimony in not the Labor Arbiter.
opposition thereto, if offered, and only after a finding of fact by the
Commission, to the effect: The Commission may:
1. That prohibited or unlawful acts have been threatened a. Grant the restraining order ex-parte, meaning only one party
and will be committed and will be continued unless is heard, together with the evidence supporting the petition.
restrained, but no injunction or temporary restraining Then the Commission may decide to call the union or the other
order shall be issued on account of any threat, party to present their own evidence in opposition to the
prohibited or unlawful act, except against the person or restraining order or the injunction; or
persons, association or organization making the threat
or committing the prohibited or unlawful act or actually b. It may decide right then and there.
authorizing or ratifying the same after actual
knowledge thereof; For instance, if it is violence that occurs and the employer goes up to
the Commission asking for a restraining order to stop the armed
elements of the union from harassing the employees of the employer Labor and Employment or the Commission, under pain of
who are not on strike to stop the union from destroying property, then immediate disciplinary action, including dismissal or loss of
armed with that order if it is issued, the employer will go the police and employment status or payment by the locking-out employer of
present an authenticated copy of the order and ask the police to help in backwages, damages and other affirmative relief, even criminal
the implementation of the injunction order. prosecution against either or both of them.
That is what happens and many times there will be trouble because the The foregoing notwithstanding, the President of the Philippines
longer the union is out on strike, remember they are out in the sun, it’s shall not be precluded from determining the industries that, in his
very irritating and punitive to themselves, reason slowly departs and opinion, are indispensable to the national interest, and from
emotion takes over and they become emotional and they will see the intervening at any time and assuming jurisdiction over any such
military is siding with the employer and they begin to believe that the labor dispute in order to settle or terminate the same.
government is only for the rich and not for the poor. Those kinds of
ideas are very emotionally laden. They can rouse up the members of the When is that activated? That is activated motu proprio:
union to act, many times, irrationally.
“When, in his opinion, there exists a labor dispute causing or
So you need the police to enforce the restraining order, to dismantle the likely to cause a strike or lockout in an industry indispensable
barricade, to remove all those different objects that are placed to block to the national interest, the Secretary of Labor and
the exit and entrance of the employer’s premises. Employment may assume jurisdiction over the dispute and
decide it or certify the same to the Commission for compulsory
Power of the Secretary of Labor to Assume Jurisdiction arbitration.”
Besides that action with the Commission to obtain an injunction, there
are actually provisions in the Labor Code which in effect facilitate an What is the effect?
injunction against the strike.
“Such assumption or certification shall have the effect of
And what is that? We go to Art. 278(g), the Special Extraordinary Powers automatically enjoining the intended or impending strike or
of the Secretary of Labor to Assume Jurisdiction over a labor dispute and lockout as specified in the assumption or certification order.”
hear and decide a labor dispute.
All the strikes are enjoined. If you are already on strike you must lift
ART. 278. [263] STRIKES, PICKETING, AND LOCKOUTS. – picket lines and go back to work. And the concomitant obligation of the
employer is to receive all these strikers back to work. So that is a built-
xxx in injunction against a strike, not just the activities, but the strike itself.
(g) When, in his opinion, there exists a labor dispute causing or Art. 278(g) further says that in cases of hospitals:
likely to cause a strike or lockout in an industry indispensable to
the national interest, the Secretary of Labor and Employment “In labor disputes adversely affecting the continued operation
may assume jurisdiction over the dispute and decide it or certify of such hospitals, clinics or medical institutions, it shall be the
the same to the Commission for compulsory arbitration. Such duty of the striking union or locking-out employer to provide
assumption or certification shall have the effect of automatically and maintain an effective skeletal workforce of medical and
enjoining the intended or impending strike or lockout as specified other health personnel, whose movement and services shall
in the assumption or certification order. If one has already taken be unhampered and unrestricted, as are necessary to insure
place at the time of assumption or certification, all striking or the proper and adequate protection of the life and health of
locked out employees shall immediately return-to-work and the its patients, most especially emergency cases, for the duration
employer shall immediately resume operations and readmit all of the strike or lockout.
workers under the same terms and conditions prevailing before
the strike or lockout. The Secretary of Labor and Employment or In such cases, therefore, the Secretary of Labor and
the Commission may seek the assistance of law enforcement Employment may immediately assume, within twenty four
agencies to ensure compliance with this provision as well as with (24) hours from knowledge of the occurrence of such a strike
such orders as he may issue to enforce the same. or lockout, jurisdiction over the same or certify it to the
Commission for compulsory arbitration.”
In line with the national concern for and the highest respect
accorded to the right of patients to life and health, strikes and In hospitals, clinics, other medical institutions, the Secretary can within
lockouts in hospitals, clinics and similar medical institutions 24 hours of knowledge, he can immediately assume jurisdiction in which
shall, to every extent possible, be avoided, and all serious efforts, case all strikes are enjoined.
not only by labor and management but government as well, be
exhausted to substantially minimize, if not prevent, their adverse So that is an injunction of a strike. So hospitals, very difficult to go on
effects on such life and health, through the exercise, however strike, as it should be. It should not be as easy to strike in a hospital as
legitimate, by labor of its right to strike and by management to among the workers of a chicharron factory. Are they the same? No,
lockout. In labor disputes adversely affecting the continued hospitals are essential, delicate operation.
operation of such hospitals, clinics or medical institutions, it shall
be the duty of the striking union or locking-out employer to Under the General Banking Law of 2000, there is also a provision there
provide and maintain an effective skeletal workforce of medical which says that when there is a labor dispute in a bank, the Secretary
and other health personnel, whose movement and services shall of Labor may also assume jurisdiction over the labor dispute either by
be unhampered and unrestricted, as are necessary to insure the endorsement of the Central Bank or motu proprio on the part of the
proper and adequate protection of the life and health of its Secretary of Labor.
patients, most especially emergency cases, for the duration of the
strike or lockout. In such cases, therefore, the Secretary of Labor The General Banking Law of 2000
and Employment may immediately assume, within twenty four
(24) hours from knowledge of the occurrence of such a strike or Section 22. Strikes and Lockouts. - The banking industry is
lockout, jurisdiction over the same or certify it to the Commission hereby declared as indispensable to the national interest and,
for compulsory arbitration. For this purpose, the contending notwithstanding the provisions of any law to the contrary, any
parties are strictly enjoined to comply with such orders, strike or lockout involving banks, if unsettled after seven (7)
prohibitions and/or injunctions as are issued by the Secretary of calendar days shall be reported by the Bangko Sentral to the
secretary of Labor who may assume jurisdiction over the dispute NLRC should have directed the actual reinstatement of the concerned
or decide it or certify the sane to the National Labor Relations faculty members. It therefore erred in granting the alternative
Commission for compulsory arbitration. However, the President remedy of payroll reinstatement which, as it turned, only resulted in
of the Philippines may at any time intervene and assume confusion. The remedy of payroll reinstatement is nowhere to be
jurisdiction over such labor dispute in order to settle or terminate found in the orders of the Secretary of Labor and hence it should not
the same. (6-E) have been imposed by the public respondent NLRC. There is no
showing that the facts called for this type of alternative remedy.
Now it does not specify what kind of bank, the law does not specify. So
what is the rule in construction? Where the law does not distinguish, So the Commission can be an extension of the Secretary of Labor when
neither should we distinguish. So all banks. Once there is a strike there, the labor dispute is certified to it. It has no power to amend.
the Secretary of Labor may enjoin the strike by assuming jurisdiction
over the labor dispute and commanding the employer to accept all the Then the SC said, the purpose of a Return-To-Work Order is because
employees who are returning to work. the dispute is in an industry indispensable to the national interest. So
for the sake of the country it must return to its working condition. It is
So the general phrase, and this you have to memorize: for the sake of the economy because it is indispensable to the national
interest.
Labor disputes occurring in:
For that reason, because national interest is involved, you cannot
a. industry indispensable to the national interest; postpone the Return-To-Work Order.
b. hospitals, clinics and other medical institutions; or
c. bank, For instance, in the case of St. Scholastica, the union filed a motion for
reconsideration of the assumption order and said that we are not really
then the Secretary of Labor may assume jurisdiction over the labor an industry indispensable to the national interest, since St. Scholastica
dispute. is only a school.
A Secretary of Labor (1) assumes jurisdiction over the labor dispute or ST. SCHOLASTICA’S COLLEGE, v. HON. RUBEN TORRES, in
(2) certifies the labor dispute to the NLRC. If it is occurring here in his capacity as SECRETARY OF LABOR AND EMPLOYMENT,
Mindanao, the NLRC Division 5 is in CDO. and SAMAHAN NG MANGGAGAWANG PANG-EDUKASYON SA
STA. ESKOLASTIKA-NAFTEU
And then the NLRC may delegate the Executive Labor Arbiter here in G.R. No. 100158. June 29, 1992 [BELOSILLO, J.]
Davao to hear and decide the case. Not necessarily decide but to
investigate, to hear the case. Private respondent UNION maintains that the reason they failed ko
immediately comply with the return-to-work order of 5 November
How is the case heard? The Executive Labor Arbiter who is under the 1990 was because they questioned the assumption of jurisdiction of
Commission (1) may ask for position papers or (2) may conduct respondent SECRETARY. They were of the impression that being an
hearings. academic institution, the school could not be considered an industry
indispensable to national interest, and that pending resolution of
Cases the issue, they were under no obligation to immediately return to
There was one instance where the Commission to whom the labor work.
dispute was certified by the Secretary decided to modify the order in the
Certification Order which was a Return-To-Work Order. Because of the Issue #1: Whether the effectivity of the return-to-work order is
animosity and the violence that was occurring, the Commission modified stayed by the filing of the motion for reconsideration.
the Return-To-Work Order. Instead of actually returning to work, the
employees will just return to payroll. They will be paid continually Held: No, a return-to-work order is immediately effective and
pending the resolution of the case but they don’t have to show up for executory notwithstanding the filing of a motion for reconsideration.
work because of the hostile atmosphere.
This position of the UNION is simply flawed. Article 263 (g) Labor
The SC said that the Commission has no such power to modify the order. Code provides that if a strike has already taken place at the time of
The NLRC whenever it is designated, when sitting in a compulsory assumption, "all striking . . . employees shall immediately return to
arbitration case certified to it by the Secretary of Labor and Employment, work." This means that by its very terms, a return-to-work order is
is not taking the role of a judicial court, but as an administrative body immediately effective and executory notwithstanding the filing of a
charged with the duty to implement the order of the Secretary. As the motion for reconsideration (University of Sto. Tomas v. NLRC). It
implementing body, its authority does not include the power to amend must be strictly complied with even during the pendency of any
the Secretary’s order. That is the case of University of Sto. Tomas v petition questioning its validity (Union of Filipro Employees v.
NLRC 190 scra 758. Nestle’ Philippines, Inc., supra) After all, the assumption and/or
certification order is issued in the exercise of respondent
UNIVERSITY OF STO. TOMAS v. NATIONAL LABOR SECRETARY’s compulsive power of arbitration and, until set aside,
RELATIONS COMMISSION, UST FACULTY UNION must therefore be immediately complied with.
G.R. No. 89920, October 18, 1990 [GUTIERREZ, JR.]
The rationale for this rule is explained in University of Sto. Tomas v.
Issue: Whether it was proper for the NLRC to order the alternative NLRC, supra, citing Philippine Air Lines Employees Association v.
remedies of actual reinstatement of payroll reinstatement of the Philippine Air Lines, Inc., thus —
dismissed faculty members.
"To say that its (return-to-work order) effectivity must wait
Held: No, it was not proper. affirmance in a motion for reconsideration is not only to emasculate
it but indeed to defeat its import, for by then the deadline fixed for
The NLRC was thereby charged with the task of implementing a valid the return to work would, in the ordinary course, have already
return-to-work order of the Secretary of Labor. As the implementing passed and hence can no longer be affirmed insofar as the time
body, its authority did not include the power to amend the Secretary's element is concerned."
order. Since the Secretary's July 18 order specifically provided that
the dismissed faculty members shall be readmitted under the same Issue #2: Whether the school could not be considered an industry
terms and conditions prevailing prior to the present dispute, the indispensable to national interest.
But the Supreme Court sided with the union. The Supreme Court that it
Held: No. The on-going labor dispute at the school adversely affects is obvious they cannot do the old quota as explained. That is why they
the national interest. did not return to work because if they return to work, they can observe
the quota; then, they will still be thrown out and dismissed. The
Moreover, the assumption of jurisdiction by the Secretary of Labor Supreme Court said that the workers are justified in opposing the return
and Employment over labor disputes involving academic institutions to work order. That is the only return to work order that is allowed by
was already upheld in Philippine School of Business Administration the Supreme Court.
v. Noriel where We ruled thus:
NATIONAL FEDERATION OF LABOR v. NLRC
"There is no doubt that the on-going labor dispute at the school GR No. 65150, November 11, 1985
adversely affects the national interest. The school is a duly
registered educational institution of higher learning with more or
The 275 individual petitioners are members of petitioner Union. They
less 9,000 students. The on-going work stoppage at the school
have been employed from 3 to 10 years by Sime Darby as rubber
unduly prejudices the students and will entail great loss in terms of
tree tappers at the Tipo-Tipo plantation at Tumajumbong, Basilan,
time, effort and money to all concerned. More important, it is not
one of the two plantations of Sime Darby at Basilan, the other being
amiss to mention that the school is engaged in the promotion of the
located at Latoan. The rubber tree tappers were each required to tap
physical, intellectual and emotional well-being of the country’s
250 trees daily petitioners sought a reduction of their daily quota, but
youth."
respondent Company refused. On July 1, 1983, the tappers struck.
Respondent UNION’s failure to immediately comply with the return- Petitioner Union describes the work involved in the present dispute.
to-work order of 5 November 1990, therefore, cannot be condoned. "The mountain terrain at Tumajumbong is not the same as the terrain
at Latoan. The former is more irregular than the latter. The rubber
The Return to Work order must be immediately complied with because trees, which are higher than those at Latoan, being tapped at
it is essential to the national interest that this particular employer should Tumajumbong, must now be tapped six feet or more above the
be operating. So it must be returned to the status quo ante. ground. Hence, ladders are necessary to accomplish the work. The
work sequence would be: (a) place the ladder on the trunk of the
Please remember that because there are many instances where that has tree; (b) secure the same and climb it; (c) tap the tree above six feet
been tried, but there is only one exception. The very famous case of NFL and place the receptacle to where the rubber fluid must flow; (d) get
v. NLRC. down the ladder; (e) log the ladder to another tree on the irregular
terrain. Under this new situation a great majority of the tappers could
October 15, 2020 Part 1B by Jezza Mariz Alo hardly finish the old quota of tapping 250 trees in a day which quota
they easily accomplished when the tapping was from the ground
It must be returned the status quo. Everyone must be returned. Please when no ladder was needed. They just walked from tree to tree. As
remember that because there are many instances where that has been the sap from the lower trunk depleted, a ladder had to be used.
tried. There is only one case as an exception. And that case is the Under this situation, the workers at Tumajumbong plantation
famous NFL vs NLRC. requested a reduction of the quota, first to 150 trees, but after
conciliation, to 175 trees. Respondent Company however refused to
The union of the rubber tappers of this rubber plantation in Basilan. This reduce the quota claiming that the same could be done and cited
rubber plantation in Basilan, their exclusive bargaining agent NFL was examples at the other plantation. The respondent Company's stand
under negotiation for the renewal of the CBA. was coupled with disciplinary action in gradual stages that led to
dismissals. As some tried with exertion of human endurance to make
up for the quota, rubber was spilled at the higher placed receptacles
Another point of disagreement that causes deadlock was the quota of
and many got sick after the day's work. The penalties were imposed
the number of trees that rubber tappers was made for every 8 hours per
just the same. This intolerable situation made the tapper's leave their
day. Management said that the quota per rubber tapper must be 250
work on July 1, 1983, without any notice of strike, and even without
trees. Each rubber tapper is required to cut 250 trees.
authority from their mother-Federation, the petitioner."
The union said that that is impossible. They cannot meet the 250 trees. Conciliation efforts subsequently exerted by the Regional Office No.
We have only 480 minutes to work on that. Why 480 minutes? 8 x 60 IX at Zamboanga were of no avail. The Ministry of Trade and Industry
minutes = 480 minutes. If you put 2 minutes per tree, you required 500 taking notice of the strike requested the Deputy Minister of Labor
minutes. We are given only 480 minutes per day. and Employment in its letter of July 13, 1983 to assume jurisdiction
over the dispute or certify it to the NLRC for compulsory arbitration,
maintaining that the strike, unless enjoined, would adversely affect
According to the union, we cannot possibly do that. The employer said the national interest. Accordingly, Minister Blas F. Ople certified the
why can’t you do it where the workers in Kidapawan Plantation can do labor dispute to the NLRC for compulsory arbitration. The certification
it. The union said precisely because of the argument that the workers enjoined "all striking workers to immediately return to work and the
were old and the trees were also old, we cannot do 250 trees per day. management to allow said workers to return to work" pending
It will take more than two minutes to do the rubber tapping. When the compulsory arbitration.
negotiation ended with deadlock, the union went on strike. The
management asked the Secretary of Labor to assume jurisdiction which The workers continued to stay in their dwellings within the plantation.
the management did. The respondent Company, being of the opinion that those workers
who had failed to return to work were deemed to have abandoned
their work and consequently were no longer its employees, initiated
When the Secretary of Labor assumed jurisdiction, the rubber tappers
ejectment proceedings against them before the courts of
did not go back to work anymore because if they go back to work what
Zamboanga. Upon application of petitioners, the Supreme Court, on
would still be remaining is the old provision of the CBA. The quota of
April 4, 1984, enjoined the respondent Company from evicting the
250 trees need to be tapped and the rubber tappers will never make it.
replaced workers from their lodgings in the camps.
So, the rubber tappers stayed in their houses and did not report to work.
When the soldiers and the bulldozers came, the rubber tappers went out ISSUE: Whether the resolution of the public respondent dated
of their houses. Then, the union filed a motion with the Secretary of September 19, 1983 authorizing private respondent to replace
Labor to stop the eviction of the workers and explained the case. Of permanently the striking workers who refuse to return to work, was
course, it was opposed by the employer. And the Secretary of Labor issued with grave abuse of discretion.
sided the employer.
RULING: Under paragraph (g) of Article 264 of the Labor Code, old, the employer did not want to retrain them. Because if they are
when there is a labor dispute causing a strike affecting national trained they will be in service for 5 years, anugon lang imo training. That
interest, the Minister of Labor and Employment may certify the same is the balancing of interest that was involve in the process of laying off.
to the National Labor Relations Commission for compulsory Many of them already accepted. The union still went on strike.
arbitration; and upon such certification, all striking employees shall
immediately return to work. Of course, the NLRC itself may issue the When the union went on strike, the Secretary of Labor assumed
return-to-work order. Such order however is by its very nature a jurisdiction and issued return to work order the 300 operators even some
provisional measure; and non-compliance therewith will not of them already received the package and already signed the quit claim
necessarily authorize the permanent replacement of the recalcitrant (already agreed the separation). So, the Smart& PLDT no longer
workers. accepted them. It was brought to the Supreme Court.
"...the order for the replacement of the striking employees was a
provisional order which did not finally determine the right of the What did the Supreme Court say? The Supreme Court said that the
striking employees to go back to work or of the new recruits to employer should have accepted them as part of the return to work order
continue therein as permanent employees." (NCBNY vs. NCBNY because before the strike they were working, and after the strike they
Employees, 98 Phil. 301.) are not working- you have to return the status quo before the strike.
Each case must be decided, not simply on the basis of the application
of general principles, but in the light of its own surrounding
circumstances, legal and equitable, and the benign constitutional MANGGAGAWA NG KOMUNIKASYON SA PILIPINAS v.
policy of promoting social justice, affording protection to labor and PHILIPPINE LONG DISTANCE TELEPHONE COMPANY
assuring the rights of workers to security of tenure, and just and INCORPORATED
humane conditions of work.
G.R. No. 190389, April 19, 2017
In the case at bar, individual petitioners precisely stopped working
because they found it beyond normal human endurance to regularly On June 27, 2002, the labor organization Manggagawa ng
tap at least 250 rubber trees a day at the level of six feet or more Komunikasyon sa Pilipinas, which represented the employees of
above the ground. As against this stance, private respondent Philippine Long Distance Telephone Company, filed a notice of strike
contended that the reasonableness of the minimum workload with the National Conciliation and Mediation Board. Manggagawa ng
prescribed for the workers should be threshed out in the arbitration Komunikasyon sa Pilipinas charged Philippine Long Distance
proceedings, but only after individual petitioners shall have returned Telephone Company with unfair labor practice "for transferring
to work, as compliance with the return-to-work order is a prerequisite several employees of its Provisioning Support Division to Bicutan,
for a hearing on the merits. Taguig."
Apparently accepting private respondent's posture, NLRC's disputed
On December 23, 2002, Manggagawa ng Komunikasyon sa Pilipinas
order of September 19, 1983 required the petitioners to return to
went on strike.
work under the very same conditions against which petitioners
struck, under pain of being replaced permanently, and to work On December 31, 2002, Philippine Long Distance Telephone
indefinitely under those conditions while the arbitration proceedings Company declared only 323 employees as redundant as it was able
for the purpose of determining the reasonableness of the minimum to redeploy 180 of the 503 affected employees to other positions.
daily workload of petitioners are going on without any definite
terminal date. Meanwhile, in case the workers fail to finish the On January 2, 2003, the Secretary of Labor and Employment certified
assigned daily quota of 250 trees, graduated penalties would be the labor dispute for compulsory arbitration. The dispositive portion
imposed: first offense reprimand; second offense 3 days' suspension; of the Secretary of Labor and Employment's Order read as follows:
third offense 14 days' suspension; fourth offense 1 month
suspension; and fifth offense dismissal. It would indeed be pointless Accordingly, the strike staged by the Union is hereby enjoined. All
for NLRC to go on with the arbitration proceedings if the petitioners striking workers are hereby directed to return to work within twenty
have already been permanently replaced either because they had four (24) hours from receipt of this Order, except those who were
been constrained to defy the return-to-work order or they had been terminated due to redundancy. The employer is hereby enjoined to
dismissed for failure to meet the prescribed daily workload. accept the striking workers under the same terms and conditions
prevailing prior to the strike. The parties are likewise directed to
If some of the petitioners survive and the NLRC, after the arbitration cease and desist from committing any act that might worsen the
proceedings, reaches the conclusion that the daily quota of 250 situation.
rubber trees is, after all, not reasonable and must be reduced, many
workers would have already suffered great or perhaps irreparable Manggagawa ng Komunikasyon sa Pilipinas filed a Petition for
injury. Certiorari before the Court of Appeals, challenging the Secretary of
All considered, we cannot resist the conclusion that in issuing its Labor and Employment's Order insofar as it created a distinction
order dated September 19, 1983, the NLRC committed grave abuse among the striking workers in the return-to-work order.
of discretion. The said order is therefore annulled and set aside
On July 14, 2005,23 this Court upheld the Court of Appeals' Decision,
insofar as it authorized private respondent to permanently replace
and directed Philippine Long Distance Telephone Company to
the individual petitioners who fail to return to work. Accordingly,
private respondent is ordered to accept all returning workers who are readmit all striking workers under the same terms and conditions
prevailing before the strike. This Court held:
members of the petitioner Union. Subject to the outcome of the
pending arbitration proceedings, the quota of rubber trees to be As Article 263(g) is clear and unequivocal in stating that ALL striking
tapped by the individual petitioners is provisionally fixed at one or locked out employees shall immediately return to work and the
hundred seventy-five a day. employer shall immediately resume operations and readmit ALL
workers under the same terms and conditions prevailing before the
Smart had some 300 telephone operators. This Smart-PLDT operators strike or lockout, then the unmistakable mandate must be followed
were being retrenched because they are no longer needed. But the by the Secretary.
union opposed because these telephone operators can still be retrained
On October 28, 2005, the National Labor Relations Commission
and assigned other functions and jobs. The employer just wanted to
dismissed Manggagawa ng Komunikasyon sa Pilipinas' charges of
break the union that is why they wanted to lay off 300 telephone
unfair labor practices against Philippine Long Distance Telephone
operators. But most of the telephone operators had already received the
Company.
package given by the PLDT and Smart. Since some of the operators are
ISSUE: whether the return-to-work order of the Secretary of Labor Article 294. Security of Tenure. - In cases of regular employment,
and Employment was rendered moot when the National Labor the employer shall not terminate the services of an employee except
Relations Commission upheld the validity of the redundancy program. for a just cause or when authorized by this Title. An employee who
is unjustly dismissed from work shall be entitled to reinstatement
RULING: Department of Labor and Employment Secretary Patricia without loss of seniority rights and other privileges and to his full
A. Sto. Tomas (Secretary Sto. Tomas) assumed jurisdiction over the backwages, inclusive of allowances, and to his other benefits or their
labor dispute between Manggagawa ng Komunikasyon sa Pilipinas monetary equivalent computed from the time his compensation was
and Philippine Long Distance Telephone Company pursuant to withheld from him up to the time of his actual reinstatement.
Article. 278(g)101 of the Labor Code. She certified 102 the case to (Emphasis supplied)
the National Labor Relations Commission for compulsory arbitration.
This return-to-work order from the Secretary of Labor and If actual reinstatement is no longer possible, the employee becomes
Employment aims to preserve the status quoante103 while the entitled to separation pay in lieu of reinstatement. 117
validity of the redundancy program is being threshed out in the
proper forum. On the other hand, a return-to-work order is issued by the Secretary
of Labor and Employment when he or she assumes jurisdiction over
In Telefunken Semiconductors Employees Union-FFW v. Secretary of a labor dispute in an industry that is considered indispensable to the
Labor, 104 pending resolution of the legality of the· strike, the national interest. Article 278(g) of the Labor Code provides that the
Secretary of Labor and Employment directed the employer to accept assumption and certification of the Secretary of Labor and
all the striking workers except the Union Officers, shop stewards, and Employment shall automatically enjoin the intended or impending
those with pending criminal charges. 105 This Court struck down the strike. When a strike has already taken place at the time the
Secretary of Labor and Employment's order for being issued with Secretary of Labor and Employment assumes jurisdiction over the
grave abuse of discretion, 106 and directed the employer to accept labor dispute, all striking employees shall immediately return to work.
all the striking workers without l qualifications.107 Moreover, the employer shall immediately resume operations, and
readmit all workers under the same terms and conditions prevailing
The ruling in Telefunken cannot be applied to the case at bar. before the strike.
In Philippine Long Distance Telephone Co. Inc. v. Manggagawa ng Return-to-work and reinstatement orders are both immediately
Komunikasyon sa Pilipinas, 108 which was promulgated on July 14, executory; however, a return-to-work order is interlocutory in nature,
2005, this Court struck down the return-to-work order dated January and is merely meant to maintain status quo while the main issue is
2, 2003 issued by Secretary Sto. Tomas for being tainted with grave being threshed out in the proper forum. In contrast, an order of
abuse of discretion. We ruled that the return-to-work order should reinstatement is a judgment on the merits handed down by the Labor
have included all striking workers, and should not have excluded the Arbiter pursuant to the original and exclusive jurisdiction provided for
workers affected by the redundancy program. 109 However, barely under Article 224(a)118 of the Labor Code. Clearly, Garcia is not
three (3) months after Philippine Long Distance Telephone Co. Inc. applicable in the case at bar, and there is no basis to reinstate the
's promulgation, the National Labor Relations Commission in its employees who were terminated as a result of redundancy.
October 28, 2005 Resolution 110 upheld the validity of Philippine
Long Distance Telephone Company's redundancy program. This
resolution also dismissed the charges of unfair labor practice, and The other case that you have read is the case of UIC vs CA.
illegal dismissal against Philippine Long Distance Telephone
Company. 111 UIC is the University of Immaculate Concepcion here in Davao. During
the formation of the union, there are so many controversies. One of the
When petitioner filed its Motion for Execution112 on January 17, controversies is: are the chairperson, the head teachers of the
2006 pursuant to this Court's ruling in Philippine Long Distance department part of the faculties since many of them were also teaching
Telephone Co. Inc., there was no longer any existing basis for the over and above their administrative position?
return-to-work order. This was because the Secretary of Labor and
Employment's return-to-work order had been superseded by the
National Labor Relations Commission's Resolution. Hence, the They are also teaching. They are part of the bargaining unit. The school
Secretary of Labor and Employment did not err in dismissing the administrators are no longer part of the bargaining unit because they
have recommendatory power the promotion of the teacher, the
motion for execution on the ground of mootness.
demotion and the disciplining, etc. They are part of the management.
Petitioner cites Garcia v. Philippine Airlines113 to support its claim The union said no they are part of the teachers since they are teaching.
that the affected and striking workers are entitled to reinstatement There are so many other points of conflict. The administrator and the
and backwages from January 2, 2003, when Secretary Sto. Tomas union agreed to present the particular issue that the chairperson and
directed the striking workers to return to work, up to April 29, 2006, department heads are included in the bargaining unit to a voluntary
when the National Labor Relations Commission's Resolution arbitrator. In the meantime, this bargaining went on. The voluntary
upholding Philippine Long Distance Telephone Company's arbitration reached a decision that they are not part anymore of the
redundancy program became final and executory. 114 bargaining unit under regular faculty of UIC. The union appealed the
decision of the voluntary arbitrator. Within 10 days from the receipt of
Petitioner is mistaken. the decision from the voluntary arbitrator without appeal, the decision
become final and executory.
Garcia upholds the prevailing doctrine that even if a Labor Arbiter's
order of reinstatement is reversed on appeal, the employer is
obligated "to reinstate and pay the wages of the dismissed employee Can you raise it on certiorari? No more because it becomes stare decisis.
during the period of appeal until reversal by the higher court." 115 It is already decided. Some of these people received separation package
offered by the administration. So, they resigned and already teaching
There is no order of reinstatement from a Labor Arbiter in the case somewhere. When the Secretary of Labor assumed jurisdiction of the
at bar, instead, what is at issue is the return-to-work order from the labor dispute, the Secretary said that those teachers, chairperson and
Secretary of Labor and Employment. An order of reinstatement is department heads should return to work because they are working prior
different from a return-to-work order. to the eruption of the issue. The administration already paid some of
them. The decision that they are out of the bargaining unit has become
The award of reinstatement, including backwages, is awarded by a final and executory. So, they went up again before the Supreme Court.
Labor Arbiter to an illegally dismissed employee pursuant to Article
294116 of the Labor Code: The Supreme Court said that they have to be returned. At the end of
the bargaining and everything, since they could return they can continue
to function. However, the administration said that there is already a The UNIVERSITY, thereafter, moved to reconsider the aforesaid
decision that says you are part of the bargaining unit, so therefore you Order. It argued that the Secretary’s Order directing the
should resign from the union. You are not part of the bargaining unit, reinstatement of the individual respondents would render nugatory
you are supervisors. You cannot be members of the union of the regular the decision of the panel of voluntary arbitrators to exclude them
faculty. They refused. So, the management dismissed all of them for from the collective bargaining unit. It insists that since the individual
disobedience. The dismissed employees filed an illegal dismissal. respondents had already been excluded from the bargaining unit by
a final and executory order by the panel of voluntary arbitrators, then
Is the school correct? This time the Supreme Court that yes the school’s they cannot be covered by the Secretary’s assumption order.
contention is correct. They are disobedient. There is a decision that is Then Acting Secretary Brilliantes modified the previous Orders by
final and executory. Why do they insisted that they should be covered adding that superseding circumstances would not warrant the
by the bargaining unit when they are not part of it? Because they refused physical reinstatement of the 12 terminated employees and ordered
to resigned from the union, therefore they were guilty of disobedience. placed under payroll reinstatement.
Serious disobedience is a valid ground for dismissal. Very telling that if
ISSUE: Whether or not the secretary of labor erred in suspending
you are presented a problem of a return to work order what should you
the effects of the termination of twelve employees who were not part
concentrate on? When they are still employed or they are still working of the bargaining unit involved in a labor dispute over which the
before the eruption of the issue/dispute, if they were the cause of the
secretary of labor assumed jurisdiction. - no
eruption of the dispute, they should be reinstated because that is the
status quo ante. Whether or not payroll reinstatement is proper - yes
RULING: When the Secretary of Labor ordered the UNIVERSITY to
That is the same story of the case FASAP vs Court of Appeals. There suspend the effect of the termination of the individual respondents,
are 300 flight attendants and steward. the Secretary did not exceed her jurisdiction, nor did the Secretary
gravely abuse the same. It must be pointed out that one of the
substantive evils which Article 263(g) of the Labor Code seeks to curb
UNIVERSITY of IMMACULATE CONCEPCION, INC., vs. The is the exacerbation of a labor dispute to the further detriment of the
HONORABLE SECRETARY OF LABOR national interest. In her Order dated March 28, 1995, the Secretary
G.R. No. 151379, January 14, 2005 of Labor rightly held:
This case stemmed from the collective bargaining negotiations The exercise of the Secretary of Labor and Employment’s power
between petitioner University of Immaculate Concepcion, Inc. and under Article 263(g) of the Labor Code, as amended, is the
respondent The UIC Teaching and Non-Teaching Personnel and maintenance and upholding of the status quo while the dispute is
Employees Union. The UNION, as the certified bargaining agent of being adjudicated. Hence, the directive to the parties to refrain from
all rank and file employees of the UNIVERSITY, submitted its performing acts that will exacerbate the situation is intended to
collective bargaining proposals to the latter However, one item was ensure that the dispute does not get out of hand, thereby negating
left unresolved and this was the inclusion or exclusion of the following the direct intervention of this office.
positions in the scope of the bargaining unit: a. Secretaries, b. The University’s act of suspending and terminating union members
Registrars, c. Accounting Personnel, d. Guidance Counselors. and the Union’s act of filing another Notice of Strike after this Office
This matter was submitted for voluntary arbitration. The panel of has assumed jurisdiction are certainly in conflict with the status quo
voluntary arbitrators rendered a decision to exclude the above- ante. By any standards, these acts will not in any way help in the
mentioned secretaries, registrars, chief of the accounting early resolution of the labor dispute. It is clear that the actions of
department, cashiers and guidance counselors from the coverage of both parties merely served to complicate and aggravate the already
the bargaining unit. The UNION moved for the reconsideration of the strained labor-management relations.
above decision. Pending, however, the resolution of its motion, it filed It is clear that the act of the UNIVERSITY of dismissing the individual
a notice of strike with the NCMB of Davao City, on the grounds of respondents from their employment became the impetus for the
bargaining deadlock and unfair labor practice. During the 30 day UNION to declare a second notice of strike. It is not a question
cooling-off period, 2 union members were dismissed by petitioner. anymore of whether or not the terminated employees, the individual
Consequently, the UNION went on strike. respondents herein, are part of the bargaining unit. Any act
The then Secretary of Labor Confessor issued an Order assuming committed during the pendency of the dispute that tends to give rise
jurisdiction over the labor dispute and return to work order. The to further contentious issues or increase the tensions between the
panel of voluntary arbitrators denied the MR filed by the UNION. parties should be considered an act of exacerbation and should not
be allowed.
Thereafter, the UNIVERSITY gave the individual respondents two
choices: to resign from the UNION and remain employed as With respect to the Secretary’s Order allowing payroll reinstatement
confidential employees or resign from their confidential positions and instead of actual reinstatement for the individual respondents herein,
remain members of the UNION. The UNIVERSITY relayed to these an amendment to the previous Orders issued by her office, the same
employees that they could not remain as confidential employees and is usually not allowed. Article 263(g) of the Labor Code
at the same time as members or officers of the Union. However, the aforementioned states that all workers must immediately return to
individual respondents remained steadfast in their claim that they work and all employers must readmit all of them under the same
could still retain their confidential positions while being members or terms and conditions prevailing before the strike or lockout.l^The
officers of the Union. Hence, the UNIVERSITY sent notices of phrase "under the same terms and conditions" makes it clear that
termination to the individual respondents. the norm is actual reinstatement. This is consistent with the idea that
any work stoppage or slowdown in that particular industry can be
The UNION filed another notice of strike, this time citing as a reason
the UNIVERSITY’s termination of the individual respondents. The detrimental to the national interest.
UNION alleged that the UNIVERSITY’s act of terminating the As an exception to the rule, payroll reinstatement must rest on
individual respondents is in violation of the Order of the Secretary of special circumstances that render actual reinstatement impracticable
Labor. or otherwise not conducive to attaining the purposes of the law.
The Secretary of Labor issued another Order. The Secretary also The "superseding circumstances" mentioned by the Acting Secretary
stated therein that the effects of the termination from employment of Labor no doubt refer to the final decision of the panel of arbitrators
of these individual respondents be suspended pending the as to the confidential nature of the positions of the twelve private
determination of the legality thereof. Hence, the UNIVERSITY was respondents, thereby rendering their actual and physical
directed to reinstate the individual respondents under the same reinstatement impracticable and more likely to exacerbate the
terms and conditions prevailing prior to the labor dispute. situation. The payroll reinstatement in lieu of actual reinstatement
ordered in these cases, therefore, appears justified as an exception That decision of the Secretary in assuming jurisdiction because he ruled
to the rule until the validity of their termination is finally resolved. that the retrenchment of 300 was justified. When it reached the SC, the
SC said that it was not justified. It was an invalid retrenchment because
it was predicated on financial loss. The only proof accepted by the court
October 15, 2020 Part 2A by Anna Marie Edelyn Altiso
is audited financial statement. PAL did not submit financial statement
instead it submitted the order of injunction staying all the creditors
FLIGHT ATTENDANTS AND STEWARDS ASSOCIATION OF THE
because they will now work out the financial rehabilitation. There was
PHILIPPINES (FASAP) v. PHILIPPINE AIRLINES, INC., PATRIA
a finding by the financial court that PAL was really at a financial loss.
CHIONG AND THE COURT OF APPEALS
This was confirmed by another division of the SC. So final na, overturn,
G.R. No. 178083, March 13, 2018
after 10 years reinstate the 300 and they have to pay the wages the 10
years of dismissal, not based on financial statement.
BERSAMIN, J.:
That is why Estelito Mendoza wrote. Why did he not just file a motion?
In determining the validity of a retrenchment, judicial notice may be
Because a second motion for reconsideration is not allowed in the SC.
taken of the financial losses incurred by an employer undergoing
Mendoza writes a letter not 2nd MR stating that it is highly irregular that
corporate rehabilitation. In such a case, the presentation of audited
the basis for the 300 being retrenched is really ascertain by the court
financial statements may not be necessary to establish that the when it approves the financial rehabilitation of PAL. Do we have two
employer is suffering from severe financial losses.
SCs? A very valid argument. That is why the SC is forced to reopen the
labor case which was already final and executory, entered in the book
Flight Attendants (women) and Stewards (men) about 300 of them that of judgement. They met En Banc, decide WON the retrenchment was
were retrenched by the PAL. valid. The majority opinion was written by CJ Bersamin 3 weeks before
he retired.
As you very well know, when you are retrenched, the process is you file
a 1-month notice with the DOLE and at the end of 1-month, when there The dissenting opinion was written by Justice Marvic Leonen. Leonen
is no objection then you pay them their separation benefits which is 1/2 says we are throwing away a decision that has become final and
month of salary for every year of service if it is due to financial loss. A executory, res judicata, stare decisis, they are throwing all that just to
fraction of at least 6 months is considered one year. reconcile decisions. We are doing so when the court is not unanimous.
A 2nd MR disallowed by our internal rules. If at least 3 justices agree in
Before PAL did that, PAL filed a case with the regular courts for financial writing to entertain the case, this letter is already equivalent to 3 rd MR.
rehabilitation. You will describe your financial situation attached to that If a 3rd MR should be entertained and with all the more reason since
will be a list of your creditors, their addresses, and the debts you owe there was already entry of judgment, ALL 15 of the SC should vote
them, publication of your petition in a newspaper of general circulation otherwise it should not be. (some inaudible parts)
twice. Your plan of rehabilitations. PAL submitted a pre-agreed plan for
rehabilitations which means that a third-party has been contacted to Dissenting Opinion of Justice Marvic Leonen
infuse new cash to PAL to financially resuscitate it. The third party is
Lucio Tan, who is the controlling owner of PAL. Further, with the current ponencia, this Court will be resolving Philippine
Airlines' Second Motion for Reconsideration for the second time. The
The pre-agreed plan for rehabilitation is allowed by the Financial
Court En Banc effectively admitted a third motion for
Rehabilitation and Insolvency Act of 2010. When you file a petition for
reconsideration from the same party, in violation of its own Rules.
financial rehabilitation, the financial rehabilitation court has 5 days to
decide. If it decides that it is sufficient in form and substance, then the
In my view, a unanimous vote of this Court sitting en banc must be
court will issue a stay order. The order telling all creditors and those
required to grant Philippine Airlines' third motion for reconsideration.
that are yet to establish their claim to stop, cease and desist from filing Any vote less than unanimous must lead to a denial with finality of
cases everywhere else. The foreclosure of a mortgage will cease. That
Philippines Airlines' motion.
is the beauty of financial rehabilitation or voluntary insolvency in that
particular law.
A third motion for reconsideration is a disrespect to us and our rules of
procedure. A third motion for reconsideration stifles the execution of a
The proceeding is going on in a separate forum. The other pleading
final and executory judgment of this Court. To truly prohibit the filing of
that is going on in a separate forum is the assumption of jurisdiction
further pleadings after the finality of our judgments, second and
because the union of FASAP when PAL refuse to accede for the request
subsequent motions for reconsideration must be denied outright or, if
of the workers to be trained and reassign, they filed a notice of strike.
they must be acted upon, they should be resolved with a standard
stricter than that required in resolving first motions for reconsideration.
Towards the end of the cooling of period, it was only 15 days because
the union alleged that this laying off of 300 flight attendants and It is in this Court's interest to grant third and subsequent motions for
stewards was actually ___ the union so therefore, unfair labor practice.
reconsideration only with a unanimous vote. A unanimous court would
At the end of the 15-days, they were about to go on strike, PAL went to
debate and deliberate more fully compared with a non-unanimous court
the Secretary of Labor, who assumed jurisdiction. But even before the
because unanimity makes the grant of third and subsequent motions for
Secretary assumed, the 1-month notice to the RD of labor had already
reconsideration more difficult. Greater debate must be required to allow
expired. It had already lapsed.
a motion not sanctioned by our Rules.68 Unanimity prevents flip-
flopping. It will shield this Court from parties who perceive themselves
PAL already disbursed the separation benefits. ½ month for year of
above the justice system.
service plus additional financial items agreed upon in the CBA. About
½ of the 300 flight stewards already signed quitclaims. Technically
There is no violation of due process69 in requiring a unanimous vote
speaking, they no longer employees.
instead of the majority vote required under the Constitution70 or the
two-thirds (2/3) vote required under our Internal Rules.71 A third
Are they included in the order of resumption to work by the Secretary?
motion for reconsideration is not a remedy under our existing rules of
YES. Because before the strike, they are still part of the
procedure. Under law or equity, a party has no vested right to file, much
workforce even though they have been subjected to 1-month notice so
more, to a grant of a third or any subsequent motion for reconsideration
they should be part of the return to work order.
by a mere majority vote.72 Then, applying Fortich by analogy, a third
motion for reconsideration that fails to muster a unanimous vote must
Bisag nakadawat na ka sa imong separation benefits, balik na pud kag be deemed denied. The decision, the resolution on the first motion for
trabaho, dawat na sad kag sweldo. Kalami nimo nu. reconsideration, and the resolution on the second motion for
reconsideration must be deemed affirmed. October 15, 2020 Part 2B by Jay J.L. Astillo
The Chief Justice is on leave while Justices Carpio, Velasco, Jr., The technicalities of laws must be set aside for the good of the parties
Leonardo-de Castro, and Del Castillo inhibited themselves from especially the good of the working man who cannot sustain prolonged
participating in the deliberations and voting in this case. This leaves ten litigation. That is why this idea of consolidation forced effect, this must
(10) Justices to deliberate and vote anew on Philippine Airlines' Second continue to mediate and conciliate under the auspices of NCMB. The
Motion for Reconsideration. It is in this Court's interest to require ten case is already pending with the Secretary, the parties will still at the
(10) votes to grant Philippine Airlines' second, effectively its third, workplace level continue to mediate and conciliate. Alright. Possibly a
motion for reconsideration. Any less than a unanimous vote will erode resolution of the dispute in amicable extrajudicial manner, it will be the
the reliability and credibility of this Court. conciliator or mediator assigned by the NCMB who will broker the
attempt at arriving a resolution to the labor dispute.
ASSUMPTION OF JURISDICTION And the 5th effect is – the parties involved in the labor dispute must
refrain from committing further acts that will aggravate the situation
because labor issues are always charged with emotions, charged with
What is the consequence if the Secretary of Labor assumes jurisdiction many other extenuating circumstances that either aggravate the case or
or certifies to the NLRC? make it explode into a more destructive conflict. So parties are warned
to refrain, one way to put fuel to the fire is press releases, accounts
Art. 263. Strikes, picketing and lockouts. Xxx blaming each other that they are the cause of breakdown, strike, etc.
you are supposed to refrain from committing further acts that aggravate
(g.) When, in his opinion, there exists a labor dispute causing or the dispute. Alright. Those are the five consequence of assumption of
likely to cause a strike or lockout in an industry indispensable to the jurisdiction by the Secretary of DOLE.
national interest, the Secretary of Labor and Employment may
assume jurisdiction over the dispute and decide it or certify the same The other instance where there can be an injunction in a strike - is the
to the Commission for compulsory arbitration. Such assumption or instance where a third party who is an innocent by-stander is involved
certification shall have the effect of automatically enjoining the and stands to sustain loss, injury. He is not party to the labor dispute.
intended or impending strike or lockout as specified in the He is just a third party. And he is about to suffer or is already suffering
assumption or certification order. If one has already taken place at Injury. What is his remedy? He has to go the regular courts and petition
the time of assumption or certification, all striking or locked out that regular court for injunction and in the meantime that the case is
employees shall immediately return-to-work and the employer shall heard of the merits towards the award of an injunction, he asked for a
immediately resume operations and readmit all workers under the restraining order for the union to stop the strike. Now, who is the
same terms and conditions prevailing before the strike or lockout. innocent by-stander who stands to be injured or suffer loss due to the
The Secretary of Labor and Employment or the Commission may strike?
seek the assistance of law enforcement agencies to ensure compliance
with this provision as well as with such orders as he may issue to First, let us take a case that illustrates when one who claims to be injured
enforce the same. because of the strike and he is innocent and he is not an innocent by-
stander. That is the case of MSF Tire and Rubber v Secretary
The consequence is: (should be Court of Appeals)
One, all strikes are enjoined. Impending or pending strikes are enjoined. There was a rubber recutting plant along South Superhighway in
Everyone returns. Paranaque going to Alabang. That rubber recutting plant was already on
strike for 1 month. All of sudden it receives an order from RTC
Second, there is a return order. Paranaque who stop the strike through TRO and the petitioner is MSF
Rubber. Who is MSF rubber? They don’t know. Then the facts when this
Third is all cases between the same parties are consolidated with the way.
Secretary or with the NLRC.
MSF TIRE AND RUBBER v. COURT OF APPEALS
Suppose there is an unfair labor practice pending between the union G.R. No. 128632, August 5, 1999
and the management that is being heard by the labor arbiter and the LA
has original and exclusive jurisdiction over unfair labor practice under FACTS: A labor dispute arose between Philtread Tire and Rubber
217. What happens to that case? That is consolidated with the dispute Corporation (Philtread) and private respondent, Philtread Tire Workers’
that was assumed by the Secretary of Labor. Union (Union), as a result of which the Union filed a notice of charging
Philtread with unfair labor practices for allegedly engaging in union-
Does it mean now that the Secretary has jurisdiction now over unfair busting. This was followed by picketing and the holding of assemblies
labor practice? Yes, that is what the SC said. The LA must stop hearing by the Union outside the gate of Philtread’s plant at Km. 21, East Service
the cases, wreck all the documents and the case files and remand the Road, South Superhighway, Muntinlupa.
same to the Secretary. That will be part of the resolution of the labor
dispute. Secretary of Labor Nieves Confesor assumed jurisdiction over the labor
dispute and certified it for compulsory arbitration. She enjoined the
What is the reason behind that law consolidating all the cases between Union from striking and Philtread from locking out members of the
the same parties with the Secretary of Labor who has assumed Union.
jurisdiction or the NLRC when the case is certified?
During the pendency of the labor dispute, Philtread entered into a
The reason is to resolve in a complete and a comprehensive manner the Memorandum of Agreement with Siam Tyre where, Philtread’s plant and
relationship of the two parties, labor and management. The principle equipment would be sold to a new company (petitioner MSF Tire and
that guides controversy in labor is that it must be summary. It must be Rubber, Inc.), 80% of which would be owned by Siam Tyre and 20% by
speedy. It must be not a slave to the technicality of procedural remedial Philtread, while the land on which the plant was located would be sold
law. The technicalities of law must be set aside for the good of the to another company (Sucat Land Corporation), 60% of which would be
parties. owned by Philtread and 40% by Siam Tyre.
The Union was informed of the purchase of the plant by petitioner and
the latter asked the Union to desist from picketing outside its plant and
to remove the banners, streamers, and tent which it had placed outside Liwayway’s only connection with the employer company was the fact
the plant’s fence. As the Union refused petitioner’s request, petitioner that both were situated in the same premises.
filed a complaint for injunction with damages against the Union and the
latter’s officers and directors. In the case at bar, petitioner cannot be said not to have such connection
to the dispute. As correctly observed by the appellate court:ch
The Union moved to dismiss the complaint alleging lack of jurisdiction anrob1es
on the part of the trial court. It insisted that the parties were involved Coming now to the case before us, we find that the "negotiation,
in a labor dispute and that petitioner, being a mere "alter ego" of contract of sale, and the post transaction" between Philtread, as vendor,
Philtread, was not an "innocent bystander." and Siam Tyre, as vendee, reveals a legal relation between them which,
in the interest of petitioner, we cannot ignore. To be sure, the
RTC dismissed the complaint. However, reconsidered its order, and transaction between Philtread and Siam Tyre, was not a simple sale
granted an injunction. whereby Philtread ceased to have any proprietary rights over its sold
assets. On the contrary, Philtread remains as 20% owner of private
The Court of Appeals, rendered a decision granting the Union’s petition respondent and 60% owner of Sucat Land Corporation which was
and ordering the trial court to dismiss the civil case for lack of likewise incorporated in accordance with the terms of the Memorandum
jurisdiction. of Agreement with Siam Tyre, and which now owns the land were
subject plant is located. This, together with the fact that private
respondent uses the same plant or factory; similar or substantially the
ISSUES: Whether or not the petitioner is an “innocent by-stander” to same working conditions; same machinery, tools, and equipment; and
the labor dispute between Philtread and the Union. manufacture the same products as Philtread, lead us to safely conclude
that private respondent’s personality is so closely linked to Philtread as
HELD: NO. to bar its entitlement to an injunctive writ. Stated differently, given its
close links with Philtread as to bar its entitlement to an injunctive writ.
In Philippine Association of Free Labor Unions (PAFLU) v. Stated differently, given its close links with Philtread, we find no clear
Cloribel, this Court, through Justice J.B.L. Reyes, stated the "innocent and unmistakable right on the part of private respondent to entitle it to
bystander" rule as follows: the writ of preliminary dsds injunction it prayed for below.
The right to picket as a means of communicating the facts of a labor

dispute is a phase of the freedom of speech guaranteed by the Who now is an innocent party? You go now to Liwayway Publishing
constitution. If peacefully carried out, it cannot be curtailed even in the v CIR (should be Permanent Concrete Worker’s Union).
absence of employer-employee relationship.
LIWAYWAY PUBLICATIONS, INC. v. PERMANENT CONCRETE
The right is, however, not an absolute one. While peaceful picketing is
WORKER’S UNION (digest from the SCRA)
entitled to protection as an exercise of free speech, we believe the courts
G.R. No. L-25003, October 23, 1981
are not without power to confine or localize the sphere of communication
or the demonstration to the parties to the labor dispute, including those
FACTS: The record reveals that appellant union and its members
with related interest, and to insulate establishments or persons with no
picketed the gate leading to appellee's bodega. This gate is about 200
industrial connection or having interest totally foreign to the context of
meters from the gate leading to the premises of the employer of the
the dispute. Thus the right may be regulated at the instance of third
appellants. Appellee is not in any way related to the striking union except
parties or "innocent bystanders" if it appears that the inevitable result
for the fact that it is the sublessee of a bodega in the company's
of its exercise is to create an impression that a labor dispute with which
compound.
they have no connection or interest exists between them and the
picketing union or constitute an invasion of their rights.
The picketers belonging to the appellant union had stopped and
prohibited the truck of the appellee from entering the compound to load
In one case decided by this Court, we upheld a trial court’s injunction
newsprint from its bodega, the union members intimidating and
prohibiting the union from blocking the entrance to a feed mill located
threatening with bodily harm the employees of the appellee who were
within the compound of a flour mill with which the union had a dispute.
in the truck.
Although sustained on a different ground, no connection was found
between the two mills owned by two different corporations other than
The union members also stopped and prohibited the general manager,
their being situated in the same premises. It is to be noted that in the
personnel manager including the man in-charge of the bodega and other
instances cited, peaceful picketing has not been totally banned but
employees of the Liwayway Publications, Inc. from getting newsprint in
merely regulated. And in one American case, a picket by a labor union
said bodega. The business of the appellee is exclusively the publication
in front of a motion picture theater with which the union had a labor
of the magazines Bannawag Bisaya, Hiligaynon and Liwayway weekly
dispute was enjoined by the court from being extended in front of the
magazines which has absolutely no relation or connection whatsoever
main entrance of the building housing the theater wherein other stores
with the cause of the strike of the union against their company, much
operated by third persons were located.
less with the terms, conditions or demands of the strikers. bystander"
whose right has been invaded and, therefore, entitled to protection by
Thus, an "innocent bystander," who seeks to enjoin a labor strike, must
the regular courts.
satisfy the court that aside from the grounds specified in Rule 58 of the
Rules of Court, it is entirely different from, without any connection
ISSUE: In such a factual situation, the query to be resolved is whether
whatsoever to, either party to the dispute and, therefore, its interests
the appellee is a third party or an "innocent bystander" whose right has
are totally foreign to the context thereof. For instance, in PAFLU v.
been invaded and, therefore, entitled to protection by the regular courts.
Cloribel, supra, this Court held that Wellington and Galang were entirely
separate entities, different from, and without any connection
HELD: NO.
whatsoever to, the Metropolitan Bank and Trust Company, against
whom the strike was directed, other than the incidental fact that they
RATIONALE:
are the bank’s landlord and co-lessee housed in the same building,
respectively.
At this juncture it is well to cite and stress the pronouncements of the
Supreme Court on the right to picket. Thus, in the case of Phil.
Similarly, in Liwayway Publications, Inc. v. Permanent Concrete
Association of Free Labor Unions (PAFLU) vs. Judge Gaudencio Cloribel
Workers Union, this Court ruled that Liwayway was an "innocent
bystander" and thus entitled to enjoin the union’s strike because
et al., L-25878, March 28, 1969, 27 SCRA 465, 472, the Supreme Court, it is already a private property inside that is they were picketing at the
speaking thru Justice J.B.L. Reyes, said: common entrance. Because they have to go inside, they cannot picket
inside the private property. So, the contract between LP and the owner,
The right to picket as a means of communicating the facts of a labor didn’t make the owner less than an innocent third party because
dispute is a phrase of the freedom of speech guaranteed by the Hansmensy, as Hansmensy, is a separate and distinct person from MB
constitution. If peacefully carried out, it cannot be curtailed even in the even if he controls MB. You get that? All about personality.
absence of employer-employee relationship.
Alright, let us change the facts. Suppose we are talking about you now.
The right is, however, not an absolute one. While peaceful picketing is Let us suppose that one day, you wake up in the morning and you hit
entitled to protection as an exercise of free speech, we believe that the wall …. and you finally realized that you don’t have business why
courts are not without power to confine or localize the sphere of myself….all this trouble. Might as well go into business and stop studying
communication or the demonstration to the parties to the labor dispute, law. You go to Gaisano Mall and you talk to the managers there, and
including those with related interest, and to insulate establishments or they have a small space available and they are offering it to you for 5k
persons with no industrial connection or having interest totally foreign a month for your business there. Squid ball business. So you start selling
to the context of the dispute. Thus, the right may be regulated at the in that space. One day you are going there and all of a sudden you see
instance of third parties or "innocent bystanders" if it appears that the the picketing in Gaisano Mall. You are being stopped by the workers.
inevitable result of its exercise is to create an impression that a labor You cannot go in there. Wala man koy labot ana kay dili man ko Gaisano.
dispute with which they have no connection or interest exists between What will happen to my squid balls, I will stand to suffer loss. And yo
them and the picketing union or constitute an invasion of their rights. In remember that MSF and LP case and you say I will go the regular courts
one case decided by this Court, we upheld a trial court's injunction (RTC), file a petition for injunction because I am a third party who is an
prohibiting the union from blocking the entrance to a feed mill located innocent by-stander. Wala man koy labot sa away nila. So the court
within the compound of a flour mill with which the union had a dispute. should give me relief because I am suffering loss.
Although sustained on a different ground, no connection was found
other than their being situated in the same premises. It is to be noted Issue? Are you an innocent third party by-stander? Are you like LP? Ha?
that in the instances cited, peaceful picketing has not been totally
banned but merely regulated. And in one American case, a picket by a You are not LP, You are not on the same position. Why? Because
labor union in front of a motion picture theater with which the union had Gaisano Mall, the employer struck against, is connected with you by
a labor dispute was enjoined by the court from being extended in front contract of lease, there is privity of contract. By entering into a contract
of the main entrance of the building housing the theater wherein other of lease, by occupying this small space, you accepted the probability of
stores operated by third persons were located. being affected by a labor conflict. There is a privity of contract between
you and the employer struck against. That contract is the contract of
The same case state clearly and succinctly the rationalization for the lease.
court's regulation of the right to picket in the following wise and
manner: Ha? There is a difference between that of LP. LP is not in contract with
the employer struck against, MB. Both LP and MB are in contract with
Wellington and Galang are mere 'innocent bystanders'. They Hansmensy, who owns the property. And this does not cancel out the
are entitled to seek protection of their rights from the courts and the third party innocent by-stander status of LP just because they have the
courts may, accordingly, legally extend the same. Moreover, PAFLU's same lessor that does not make distinct two lessees as connected as to
right to peacefully picket METBANK is not curtailed by the injunctions cancel out the third party innocent by-stander status of LP.
issued by respondent judge. The picket is merely regulated to protect
the rights of third parties. And the reason for this is not far-fetched. If So whenever you are given a problem, be very clear. Like for example
the law fails to afford said protection, men will endeavor to safeguard 10 years ago, there was a strike in Holy Cross by the faculty and non-
their rights by their own might, take the law in their own hands, and teaching staffs. They picket. Then they moved their picket in the
commit acts which lead to breaches of the law. 'This should not be residence of the chairman of the board. In the residence of Archbishop
allowed to happen. Capalla in Torres St. can you picket the residence of the chairman of the
corporation? It is not a working place! But Capalla filed a petition for
injunction with regular courts. Not bishop Capalla, the other priests living
From Fr. Gus, discussion of Liwayway v CIR: there who are not connected with Holy Cross. Why should I lose sleep,
I am not connected with Holy Cross, the employer struck against. You
Liwayway Publishing has its own printing press, has its own offices and can file, that is an innocent third party innocent suffering loss because
it is the distributor of Liwayway Bisaya, Hiligaynon – all these different of the strike. You can ask them to stop the picketing there but not the
local magazines that you people you don’t even bother to read that picket at Holy Cross. You get the point? So there will be more cases. But
which the masses, the reading material of the masses. Now, this LP has that is the principle.
its plant and printing press within the same premises as Manila Bulletin.
They are separate but they are located in the same piece of real property Why cannot you go the NLRC, the commission, who can issue an
that has a common entrance and is owned by the controlling owners of injunction? Because there is no employee-employer relationship. The
LP and MB. NLRC does not know you from Adam. You are not connected with these
striking workers. You have to go to court. That is one of the exceptions
The owner (Hansmensy?) placed LP in the property and the latter pays where the court can issue an injunction in a labor dispute.
rent. MB also paid rent to the owner. The workers of MB went on strike
and they blockade the common entrance. They conducted picket there. October 22, 2020 Part 1A by Neil Dante Baban
So the operations of MB and LP were paralyzed. LP went to the regular
courts and said that it is an innocent third party that is suffering loss. I [Please refer to the remedy flowchart]
have nothing to do with the labor dispute. LP is a separate and distinct
corporation from MB even if we have the same controlling owners. Is We are in the last portion of labor relations. We go to the matrix. This
the fact that we have a common controlling owner with the employer is the outline of dispositions of labor controversies in seven forums.
struck against, is that enough to nullify our being a third party, that is
innocent? GRIEVANCE MACHINERY
The rightmost forum, we begin from there, that is grievance machinery
The Supreme Court says, NO!. You are a genuine third party and the and this applies only to organized establishment where there is a
striking union should not be striking and picketing the common entrance
functioning CBA and there is a grievance machinery or procedure.
and should conduct their picket before MB. They cannot do that because
GRIEVANCE UNDER THE CBA

The normal cases that are handled by the grievance machineries are: There is this other category of class of cases in grievance machinery and
1. Controversies concerning the interpretation and that is all others that is defined as grievance under the CBA. What is
implementation of the CBA that? Grievance under the CBA could be permissive jurisdiction, will give
2. Disputes concerning interpretation and enforcement of the grievance and the voluntary arbitrator ultimately, jurisdiction over
company personnel policies controversies that the parties submit to the grievance machinery. Take
3. Wage distortion, if and when it occurs in the bargaining unit. not that grievance is only proper if the subject matter is the mandatory
And that wage distortion, as provided in article 204 of the subjects of bargaining. Suppose there is a provision in the CBA that says
labor code, must be handled through the grievance that management agrees to grant the union the right of first refusal on
machinery asset disposals of the employer involving fully depreciated equipment
4. All others that us defined as grievance under the CBA and other assets. So, cars, trucks that are fully depreciated. So, before
it can offer it to other, it must offer it to the union. That is what the CBA
If there is no CBA, how is wage distortion handled? provides. If it is in the CBA that it is granted to the Union, but then the
employer does not consult the union anymore and just immediately
The procedure is first the representative of workers and the dispose of the asset, by offering the auction to the general public. Is
representatives of the management meet and discuss it and try to that a violation? Under the CBA, it would seem to be a violation, but it
explore solutions to the wage distortion. If they cannot arrive at an is my submission that it is not a mandatory subject of bargaining
understanding, the NCMB will enter into the discussion and will try to because the right of first refusal is AN OPTION TO PURCHASE and the
get the parties to arrive at a mutually acceptable solution. If the NCMB latter is governed by the civil code on the contract of sale and when do
cannot succeed in that, the workers, who are normally the aggrieved you have an actionable option to purchase? You only have an option to
party in a wage distortion will file a complaint against the employer who purchase if you have paid a separate consideration for that option. IF
is now the respondent, with the labor arbiter, and the complaint is wage you did not pay anything, then the seller can consult you, or it may
distortion. choose not to give you a chance to buy it. It is because an option to buy
What is wage distortion? is a right that must be supported by a separate consideration. In other
words, it is another law that governs an option to buy and right of first
Wage distortion is the result from the issuance of a new wage order. refusal it is not in the labor code. So, it is my submission that it is not
This wage order applies only to one, or less than all of the employees, covered by the grievance machinery. How do I know it? Well it’s based
that are in hierarchy of classes of employees with different pay rates. on an American case. American labor case. It is not yet decided in the
Why do they have different pay rates? Because they have different Philippines.
qualifications, academic credentials, expertise, experience, and this is
the explanation why they have different payrates. Now, the mandatory Now it is true that parties can submit to voluntary arbitration whatever
wage increase applies only to one of them so that the nearest class after, controversy they may be involved with. But it is my contention that what
will no longer have a significant difference in wages. The new wage they submit should be a labor controversy.
order increases the wage of this particular class and the class next to it
is not increased, so there is a severe contraction or elimination of the LABOR CONTROVERSY
difference. That is the distortion of wages where before there used to A labor controversy is a controversy provided that the provision of law
be a difference, now there is no more difference between a probationary that is needed to resolve that controversy is the labor code. If it is not
welder and a regular welder because the probationary welders wage is the labor code, then it is not a labor controversy, and you cannot submit
increased by the new wage order while the regular wage of regular it to voluntary arbitration.
welders is not increased. The difference is eliminated. That is wage
distortion. Please be reminded that there is no wage distortion unless Let’s put it this way, suppose there is a complaint by the union that
there is a wage order. management is committing ULP because it is allowing another union to
come in and hold meetings with the workers who are already members
Suppose and employer increases unilaterally the entry level wage of a of the exclusive bargaining agent. Why does the management do that
welder because he can no longer find a welder to apply for the positions without letting the exclusive bargaining agent know that this other union
with the company because some prefer to work abroad or more is already slowly pirating their members, so the exclusive bargaining
competitive wage package. So what do they do? They increase the entry agent claims that there is unfair labor practice. Suppose management
level wages of welders, without increasing the wages of the regular proposes to submit the matter to voluntary arbitration, if they agree,
welders. Now, the regular welders will complain that there is a severe then they will choose a voluntary arbitrator and if they cannot agree the
contraction or elimination of the wage difference. Is that wage NCMB will appoint one. Now, who has original and exclusive jurisdiction
distortion? NO. There is no wage order. It is just the employer who over unfair labor practice? Under 224 it is the labor arbiter. Can you
increased the wages of the entry level. And the effect is the same. That deprive the labor arbiter of its original and exclusive jurisdiction? Yes if
is called, in labor relations, industrial relations terminology as WAGE you submit it to voluntary arbitration. That is permissive jurisdiction of
COMPRESSION. And that is an internal conflict. You cannot file a case grievance machinery and voluntary arbitration. That is number 4 in this
against that. There is no cause of action there. The generosity of the column (refer to table). So I explain to you what it is, and what it is not.
employer erasing wages of a class of workers is not a cause of action It cannot be a controversy like right of first refusal because it is not
against him by those who did not receive an increase. That is not wage governed by the labor code but governed by the civil code.
distortion. It is wage compression. It might give rise to internal
dissatisfaction on the part of the workers, but it is not a cause of action. VOLUNTARY ARBITRATION
Essential it is that there must be a wage order. Once you have a wage Grievance machinery if it does not settle the controversy, then it
order, you have a third party, the sovereign, who is creating a law, that becomes the subject of hearing and decision by the voluntary arbitrator
made you lose the difference in wages between a group that you or panel of voluntary arbitrator.
consider as inferior to you, because they are just entry level, and you as
a regular welder. That is a cause of action because it is done by the third Now what determines whether it’s only a single VA or a panel of VA that
party, mainly the sovereign. Alriiight. will scrutinize and decide the case? It is the GRIVANCE MACHINERY
PROVISIONS IN THE CBA. The grievance machinery should provide
explicitly that the unsolved controversies that have exhausted the
grievance machinery would end up being adjudicated by a panel of The immediate reinstatement of the employee pending the appeal
voluntary arbitrators. Because if it does not specify a panel, then it is has been introduced by Section 12 of Republic Act No. 6715, which
only one voluntary arbitrator who will decide. The parties are given a amended Article 223 of the Labor Code, to wit:
chance to choose a voluntary arbitrator, if they cannot choose, the
NCMB will appoint a voluntary arbitrator. So you can see, the moment SEC. 12. Article 223 of the same code is amended to read as follows:
NCMB appoints a voluntary arbitrator, it is less than voluntary because
Art. 223. Appeal. -
somebody appoints the arbitrator. How can that be a voluntary arbitrator
xxxx
decided by the parties? It is not. It is imposed by the representative of
In any event, the decision of the Labor Arbiter reinstating a dismissed
the sovereign, the state. That is why there is a problem because the or separated employee, in so far as the reinstatement aspect is
labor code says that this should be the proper rule. There is no appeal concerned, shall immediately be executory, even pending appeal.
from the decision of the voluntary arbitrator. If it’s really voluntary, the The employee shall either be admitted back to work under the same
parties choose the Voluntary arbitrator, because they choose the terms and conditions prevailing prior to his dismissal or separation
voluntary arbitrator, they trust in his integrity, in his know-how, and in or, at the option of the employer, merely reinstated in the payroll.
his intentions to decide what is right. After he has decided, they accept. The posting of a bond by the employer shall not stay the execution
That is why the labor code says: for reinstatement provided herein. (bold underscoring supplied for
emphasis)
Article 262-A. Procedures. - The award or decision of the
voluntary arbitrator or panel of voluntary arbitrators shall The normal consequences of a finding that an employee was illegally
contain the facts and the law on which it is based. It shall be final dismissed are, firstly, that the employee becomes entitled to
and executory after ten (10) calendar days from receipt of the copy reinstatement to his former position without loss of seniority rights;
of the award or decision by the parties. and, secondly, the payment of wages corresponding to the period
from his illegal dismissal up to the time of actual reinstatement.
Now the problem is section 1 Rule 43 of the civil procedure is not These two consequences give meaning and substance to the
constitutional right of labor to security of tenure. Reinstatement
amended and still provides that decision of the voluntary arbitrator may
pending appeal thus affirms the constitutional mandate to protect
be appealed to the court of appeals within 15 days from receipt of a
labor and to enhance social justice, for, as the Court has said in Aris
copy of award or decision of the voluntary arbitrator. So, substantive (Phil.) Inc. v. National Labor Relations Commission:
law has 10 days, and it is final, procedural law has 15 days to appeal,
who is superior? A procedural law or a substantive law? THE In authorizing execution pending appeal of the reinstatement aspect
SUBSTANTIE LAW. The problem is that the author of the procedural law of a decision of a Labor Arbiter reinstating a dismissed or separated
is the supreme court and the Supreme Court has already repeated that employee, the law itself has laid down a compassionate policy which,
decision of the voluntary arbitrator are appealable within 15 calendar once more, vivifies and enhances the provisions of the 1987
days from receipt of the award or decision by the parties. So, the Constitution on labor and the working-man.
Supreme Court in one of the decided has said, that this is what you do:
So, it is only in article 229 (223) that there is immediate execution of
The moment you receive the decision of the voluntary arbitrator an you decision of labor arbiter finding illegal dismissal pending appeal. Take a
are not at rest with it, right away, you inform the voluntary arbitrator look the article:
that you are appealing the decision, so that he will refrain from recording
his own judgement in the book of judgements. Because the moment he October 22, 2020 Part 1B by Patricia Nicole Balgoa
makes an entry there, it has become final and executory after 10 days.
So he should be informed that the union or management or both are Art. 223 1. Appeal.
appealing the decision from the VA’s office and the parties have 15 days xxx
In any event, the decision of the Labor Arbiter reinstating a
to do so under section 1 of rule 43 and then you make your appeal brief
dismissed or separated employee, insofar as the reinstatement
and you submit it to the voluntary arbitrator so that together with all the
aspect is concerned, shall immediately be executory, even pending
records of the case, that is forwarded to the court of appeals. Now, let appeal. The employee shall either be admitted back to work under
me remind you the case of Rogelio Baronda v CA. the same terms and conditions prevailing prior to his dismissal or
separation or, at the option of the employer, merely reinstated in
ROGELIO BARONDA v. HON. COURT OF APPEALS, and the payroll. The posting of a bond by the employer shall not stay
HIDECO SUGAR MILLING CO., INC., the execution for reinstatement provided herein.
G.R. No. 161006
It only says ‘immediate reinstatement for decisions of the labor arbiter,’
ISSUE: Is the VA order of reinstatement immediately executory? but now the rule is that if the voluntary arbitrator in a disciplinary case
makes a finding that there is an illegal dismissal, that, too, is immediately
HELD: Voluntary Arbitrator's order of reinstatement of the petitioner executory pending appeal. Do not forget that because this has not been
was immediately executory
asked in the bar examination. It might be asked.
The next query is whether the order of reinstatement of the
petitioner by the Voluntary Arbitrator was immediately executory or Q: From the CA, what are the grounds of appealing the decisions of a
not. voluntary arbitrator?
A: The grounds for appealing the decision of the voluntary arbitrator are
We answer the query in the affirmative. Although the timely filing of the same grounds that are allowed for appeals from the labor arbiter,
a motion for reconsideration or of an appeal forestalls the finality of namely:
the decision or award of the Voluntary Arbitrator, the reinstatement a. If there is prima facie evidence of abuse of discretion on the
aspect of the Voluntary Arbitrator's decision or award remains part of the Labor Arbiter;
executory regardless of the filing of such motion for reconsideration
or appeal. b. If the decision, order or award was secured through fraud or
coercion, including graft and corruption;
1
Father referred to it as section 229
that the principal relief sought by petitioner in his complaint was not
c. If made purely on questions of law; and the payment of his separation package but the release to him of the
-state in your appeal that it is a mere question of law. If CA withheld amount of P1,400,000.00, to which both he and the
considers it a mere question of law, then they will forward it cooperative claimed entitlement. In addition, he also sought the
to the SC. The CA will no longer bother in reviewing it if it return of the alleged excess deductions made for his 2007 loan in the
understands from the petition that it is a mere question of amount of P279,464.00.
law.
Ergo, given that the disputed amount of P1,400,000.00 and the
alleged excess deductions of P279,464.00 both relate to petitioner’s
d. If serious errors in the findings of facts are raised which alleged indebtedness to the cooperative and not to respondent, it
would cause grave or irreparable damage or injury to the becomes apparent that the controversy involves debtor-creditor
appellant. relations between petitioner and the cooperative, rather than
-most common ground, ie: there are serious errors committed employer-employee relations between respondent and petitioner.
by the voluntary arbiter. Evidently, the employer-employee relationship between respondent
and petitioner in this case is merely incidental and the principal relief
Memorize these 4 grounds. sought by petitioner can be resolved not by reference to the Labor
Code or other labor relations statute or a collective bargaining
REMEMBER: A simple error is not a ground for appeal from the labor agreement but by the general civil law.
arbiter or from a voluntary arbitrator. It must be serious errors in the
findings of facts which if not appealed will cause grave and irreparable In sum, the determination of petitioner’s case is beyond the
competence of the labor tribunals for the following reasons: 1)
damage or loss to the appellant. Seryoso. Not just a simple error. It must
petitioner’s claims have no reasonable causal connection with his
be serious.
employment relationship with respondent; 2) the cooperative is not
a party to the labor complaint and would therefore be deprived of
TUMAODOS v. SAN MIGUEL the opportunity to plead its claims; and 3) the Interpleader with
YAMAMURA PACKAGING CORPORATION Consignation case before the Regional Trial Court, which was filed by
G.R. No. 241865, February 19, 2020 respondent prior to petitioner’s labor complaint, was the proper
forum to ventilate the claimants’ respective claims over the disputed
Facts: Due to its plant reorganization, respondent San Miguel amount of P1,400,000.00.
Yamura Packaging Corp. implemented an Involuntary Separation
Program. Petitioner Trifon B. Tumaodos was one of its employees The labor arbiter in this case cannot summon because there is no
who availed himself of the program. His separation package was
employer-employee relationship between the credit cooperative and the
computed at P3,084,244.66, but respondent withheld the amount of
retiring engineer. How can he acquire jurisdiction?
P1,400,000.00 on behalf of the cooperative to which petitioner
allegedly had an outstanding indebtedness.
It is beyond the jurisdiction of the labor arbiter to rule on this matter.
Subsequently, respondent received a letter from petitioner claiming The proper remedy therefor is for Yamamura Packaging to file a petition
he no longer had an outstanding obligation in the cooperative. Thus, for declaratory relief with consignation. That is the proper remedy
petitioner demanded the release of the withheld amount. because it involves another contract, ie: mutuum or loan. Moreover, it
Respondent also received a letter from the cooperative disputing involves the right of a third party over which they did not acquire
petitioner’s assertions and also claiming entitlement to the withheld jurisdiction in the absence of employer-employee relationship.
amount. Due to the conflicting claims respondent filed a complaint
for Interpleader with Consignation before Branch 55, Regional Trial That can happen to voluntary arbitrators.
Court, Mandaue City.
Magbantay na mo, 4th year na mo. Many times, your knowledge of
Meanwhile, petitioner filed a complaint against respondent before the
substantive law is not good. Asa man nimo kwaa ang answer? Sa
National Labor Relations Commission (NLRC) Regional Arbitration
remedial law. Ngadto nimo kwaon. Magantay ka anang mga special
Branch No. VII for non-payment of separation pay and damages.
Respondent claimed that the Labor Arbiter (LA) and the NLRC have forums, special courts, because they are not courts of general
no jurisdiction over the case. jurisdiction. You call regular courts as courts of general jurisdiction. Ang
labaw sa tanan, of course, is the Supreme Court. But even the Supreme
Issue: Dos this claim prosper? Court is not all mighty. The Supreme Court is generally a court of law.
It is not a court of facts. By the time you go to the Supreme Court, the
Held: YES. facts are already settled. The Supreme Court really goes on a limb by
determining, still, the facts. The Supreme Court is not supposed to do
To the Court, petitioner’s claims have no “reasonable causal that! It’s supposed to be only allowed to do that if there is a conflict in
connection” with his employment relationship with respondent. It the determination of the facts, then they will decide which rendition of
bears to point out that the case that petitioner filed was neither a the facts is right. The SC does not even look at the facts. It looks at the
complaint for illegal dismissal nor a claim for reinstatement. His
decisions of the courts a quo and weighs the merit of the decisions. That
complaint was for alleged non-payment of separation benefits and
is how it determines the facts in cases of conflicts. That’s why you cannot
damages. It is notable, however, that respondent never denied
petitioner’s entitlement to his separation pay. In fact, on Oct. 13, go straight to the Supreme Court.
2014, respondent paid out petitioner’s separation package, except
that it withheld the amount of P1,400,000.00, which, purportedly, The Supreme Court says, ‘This is not a court of facts. This is a court of
was his outstanding indebtedness to the cooperative. Petitioner, in law.’ Go to the courts down below.
turn, signed Receipt and Release in favor of respondent but made a
notation that the amount of P1,400,000.00 was still subject to October 22, 2020 Part 2A by Ingrid Chua
verification. Thus, by signing the Receipt and Release, petitioner had
in fact acknowledged that he had been paid all amounts due him MED-ARBITER AND REGIONAL OFFICE
comprising his separation benefits, except that he questioned the The second row from the right covers the med arbiter and the regional
withholding of the P1,400,000.00 as he claimed that he no longer office of the DOLE.
had existing loan obligations to the cooperative. It appears, thus,
Why are these two? the federation. The local is the principal. But in actual practice,
Because in the provinces, the med arbiter who is the frontline officer of the local ends up as the errand boy of the federation, kay sila
the BLR is attached to the regional director’s office of the DOLE in the may nakabalo.
provinces. That is why there are 2 here
5. Visitorial powers under Art 288.
These are the classes of cases that are within the jurisdiction of
the med arbiter: This is the visitorial powers of the Sec of Labor. He can
delegate the BLR to do that, but he does not have to that
1. Intra union disputes. because the BLR has its own source of power to do visitations
Why is there a dispute within the union? of the offices of the union. Where is that found? That is found
Because of the constitution and by-laws. There is a provision in Sec 16, Chapter IV, Book IV, Title 7 of the Administrative
in the constitution and by-laws of grounds for expulsion in the Code of 1987.
union. Common ground in all constitutions is disloyalty. There
is a procedure that has to be followed. Somebody will file
Administrative Code. Book IV, Title VII, Chapter 4 SECTION
charges, there will be a committee that will be created. There
16. Bureau of Labor Relations.—The Bureau of Labor Relations shall
is a hearing.
set policies, standards, and procedures on the registration and
supervision of legitimate labor union activities including denial,
______2 conditions of membership under the labor code.
cancellation and revocation of labor union permits. It shall also set
Rights of a union member, conditions of membership in the
policies, standards, and procedure relating to collective bargaining
union, etc. Violations of these rights are also a cause of action.
agreements, and the examination of financial records of accounts of
Before, violations of the constitution, violations of these rights
labor organizations to determine compliance with relevant laws.
and conditions can be grounds for the cancellation of
registration of a union. Now they are no longer grounds.
The Bureau shall also provide proper orientation to workers on their
What is the result of the violation of these rights? rights and privileges under existing laws and regulations, and develop
The result can be that the erring officer, all persons schemes and projects for the improvement of the standards of living of
responsible for the violation, can be expelled from the union. workers and their families.
That is problematic. If the union has a union security clause,
the union can compel the employer to remove the employee BLR has its own powers to exercise visitorial imperatives, at anytime of
that has been expelled from the union. Then you can lose your the day or night, as long as the workplace is open. We have the case of
livelihood just because you are removed from the union. That La Tondeña workers union v NLRC 239 SCRA 117 (199)
can happen to a treasurer who violates the rights and
conditions of union membership. It can happen to a president LA TONDEÑA WORKERS UNION v. NLRC
of the union, if he defrauds the union of its property or funds 239 SCRA 117 (1994)
etc.
Facts: Petitioner LTWU is a duly registered labor organization. For more
2. Controversies with respect to the election of officers. that thirty years it was bargaining agent of the rank-and-file workers of
Naay nakadaog unya naay di kadawat nga pildi siya, away, La Tondeña Inc. at its Tondo Plant. On May 31, 1989 it lost in a
med arbiter paingon. certification election to the Ilaw at Buklod ng Manggagawa (IBM).
3. CBA registration On March 14, 1989, about 200, out of 1,015 members of petitioner,
There is a controversy. A group says “The CBA should not be petitioned the NCR Office of the DOLE (hereafter referred to as DOLE-
registered because we have not seen it. They should ratify it. NCR) for an audit or examination of the funds and financial records of
It was not posted.” Then the union president who is applying the union. A report was submitted finding Ramon de la Cruz and Norma
for the registration of the CBA says: “You have read the CBA. Marin accountable for P367,553.00 for union dues remitted by La
You cannot claim that you did not read. Look you signed that Tondeña Inc. to LTWU.
you received the signing bonus, that you are ratifying it.”
“mudawat mi kay naa may ipanghatag, so nipirma mi! pero De la Cruz and Marin appealed to them DOLE Secretary Franklin Drilon,
wa pami kabasa” lalis na sila. That is question of CBA complaining that they had not been heard before the report was made.
registration
BLR Set aside the findings of the DOLE-NCR and ordered another audit
4. Independent local. The revocation or cancellation of
registration of a local. The union, through its new president, Danilo Manrique, again moved for
a reconsideration, this time raising a jurisdictional question: That under
Remember, for purposes of filiing a petition for certification art. 274 of the Labor Code, as amended by Republic Act No. 6715, the
election, all you need is a local charter issued by a federation. power to order an examination of the books of accounts and financial
Then you have a provisional personality to file. If you want a activities of a union is vested in the Secretary of Labor and Employment
full personality that is to represent your members in a case or his representative and the BLR can not be considered the Secretary’s
before the labor arbiter, you must be a full local. representative. In its order of January 22, 1990, however, the BLR
denied petitioner’s motion
When do you become a full local? When you already finished
an organizational meeting in which you adopt your The union filed a petition for review of the orders of December 1, 1989
constitution and by-laws, list down all your members, elect and January 22, 1990 to the DOLE Secretary. The Secretary of Labor
your officers as a local. Then you submit it to the BLR thru the and Employment did not act on the petition for review of the union.
med arbiter. Instead, he referred the petition to the BLR which denied the petition
for having become moot and academic
Remember that we are talking about the LOCAL. When you
say local, it is a union on the level of the workplace. The legal
characterization by the SC is that the local is the real party-in-
interest. The one who signs the CBA made by the officers of
2
Wa gyud, sabog gyud ang audio. Pasensya kaayo 
Issue: Whether under the law the power to examine the books of From that second to the right column, we go to the third column from
accounts of petitioner is vested in the Secretary of Labor and the right this is Bureau of Labor Relations Original Jurisdiction.
Employment or in the Bureau of Labor Relations.
BUREAU OF LABOR RELATIONS
Ruling: The "union accounts examiners of the Bureau" mentioned in Original Jurisdiction
Rule 1, sec. 1 (ff) of the implementing rules as having the power to audit
the books of accounts of unions are actually officials of the BLR because 1. Federations and national trade unions
the word "Bureau" is defined in Rule 1, sec. 1 (b) of the same rules as What are the controversies?
the Bureau of Labor Relations. Suppose a federation splits, like FFW. There is FFW original
and there is FFW ____ faction (Faction 2)3. They could not
Anyway, the delegation of authority to union accounts examiners in Rule agree anymore internally.
1, sec. 1 (ff) is not exclusive. By indorsing the case to the BLR, the
Secretary of Labor and Employment must be presumed to have Usually, it is about money that they are fighting. Those that
authorized the BLR to act on his behalf. As already stated, the Secretary are rich locals, they say “we do not see our money anymore.
made two indorsement: first, when he referred to the BLR the letter It is just taken over by the officials and they engage in
dated July 27, 1989 of Ramon de la Cruz and Norma Marin seeking the speculative ventures like campaingning in another workplace
annulment of the audit report of the DOLE NCR, and second, on to wrest it from another federation but they end up defeated.
September 4, 1990 when, instead of acting on the petition for review of So they are just wasting our money.” So we are separating
the union, he indorsed it to the BLR. from them.
Independently of any delegation, the BLR had power of its own to So Faction 2 of the FFW are all mostly pharmaceutical unions.
conduct the examination of accounts in this case. Book IV, Title VII, There is steady income, high salary, high union dues. They
Chapter 4, sec. 16 of the Administrative Code of 1987 are the ones that complained.
The Labor Code, as amended by RA 6715, likewise authorizes the BLR Whose jurisdiction is that?
to decide intra-union disputes. This includes the examinations of The Director of BLR. He will handle it because it is with him.
accounts. Art 226 of the Labor Code provides: Normally, technically it is med-arbiter. But it is no longer the
med-arbiter that has enough statute to handle it. It is the
Art. 226. Bureau of Labor Relations. — The Bureau of Labor director of the BLR
Relations and the Labor Relations Divisions in the regional offices of the
Department of Labor shall have original and exclusive authority to act, The moment that is it with the BLR, his decision can be
at their own initiative or upon request of either or both parties, on all reviewed only by the Court of Appeals. It is not reviewable
inter-union and intra-union conflicts, and all disputes, grievances or anymore the by the Sec of Labor. Our authority there is MY
problems arising from or affecting labor-management relations in all San Biscuits v Sec of Labor. (Note 15:34- 17:40 na dc si
workplaces whether agricultural or non-agricultural, except those arising fr)
from the implementation or interpretation of collective bargaining
agreements which shall be the subject of grievance procedure and/or MY SAN BISCUITS v. ACTING SEC LAGUESMA4
voluntary arbitration. G.R. No. 95011, April 22, 1991
The Bureau shall have fifteen (15) working days to act on labor cases Facts: On May 12, 1989, private respondent Philippine Transport and
before it, subject to extension by agreement of the parties. General Workers Organization (Union for short) file a petition for
certification election as a bargaining agent for a group of employees of
Petitioner’s contention that the intra-union dispute mentioned in this petitioner M.Y. San Biscuits, Inc but it was dismissed by the med-
provision does not include the examination of accounts of the union arbiter as there was no er-ee relationship between the petitioners and
because it contemplates intra-union conflicts affecting labor- the employees represented by respondent.
management relations is untenable. Conflicts affecting labor-
management relations are apart from intra-union conflicts, as is
Private respondent appealed to the Secretary of DOLE. On December
apparent from the text of Art. 226.
15, 1989, then DOLE Secretary Franklin Drilon promulgated a resolution
reversing the decision of the med-arbiter, thus finding that there exists
So visitorial powers. The secretary can check up on the union. The BLR an employer-employee relationship between petitioner and private
can do visitorial powers. respondent.
6. Petitions for certification elections

A complaint for underpayment of wages was also dismissed for lack of
7. Actions arising from administration and accounting of employer-employee relationship between the parties. This decision was
union funds and other violations of the rights of appealed to the NLRC.
members.
Petitioner filed a motion for reconsideration and a manifestation asking
Take note that you cannot compel the secretary or treasurer that action be held in abeyance pending consideration of the other case
to make a report to the entire union of the expenses and where the labor arbiter rendered a decision declaring the absence of an
income of the union diuring the 60-day freedom period. No employer-employee relationship between the parties. This was denied
more inspections there as it will be considered as harrassment by the Acting Sec.
because they are open to re-election. They cannot conduct
visitorial powers anymore. You cannot make the treasurer
concentrate on the reporting when it is already the campaign Issue: WON the Sec has no jurisdiction to determine the existence of
period. That is all under the med arbiter. employer-employee relationship between the parties.
There are many cases ha. Ruling: Under Article 226 of the Labor Code, as amended, the BLR, of
which the med-arbiter is an officer, has the following jurisdiction:
3
Di na ko ma klaro gyud unsa gi ingon ni fr. Tawagon na lang ni nakog 4
Wala nako nakita ang authority nga gina ingon ni father na sa CA i-
FACTION 2 appeal. Pero gi digest na lang gihapon nako kay gi cite baya niya..
ART. 226. Bureau of Labor Relations. — The Bureau of Labor issues that are determined tripartite because that is the policy
Relations and the Labor Relations divisions in the regional offices of the now dictated by Congress. Tripartite – labor, management
Department of Labor shall have original and exclusive authority to and government.
act, at their own initiative or upon request of either or both parties, on
all inter-union and intra-union conflicts, and all disputes, grievances or Many times management is there because they become the
problems arising from or affecting labor-management relations in all source of funding. Government is there as a referee as to a
work places whether agricultural or non-agricultural, except those particular policy that is chosen. So that is the meaning of the
arising from the implementation or interpretation of collective bargaining third column.
agreements which shall be the subject of grievance procedure and/or
voluntary arbitration. POEA
The fourth column is POEA.
“The Bureau shall have fifteen (15) working days to act on labor cases 1. Cancellation/suspension of license of authority to
before it, subject to extension by agreement of the parties. recruit of recruitment agencies.
The BLR has the original and exclusive jurisdiction to inter alia, decide So there are 2 kinds of recruitment agencies.
all disputes, grievances or problems arising from or affecting labor-  Sea-based – also called manning agencies
management relations in all workplaces whether agricultural or non-  Land-based – manpower agencies
agricultural. Necessarily, in the exercise of this jurisdiction over labor- There are many policies that have to be decided on recruiting
management relations, the med-arbiter has the authority, original and and placement of workers. They must apply for a license.
exclusive, to determine the existence of an employer-employee Whether manning agency or recruitment agency for land-
relationship between the parties. c based workers. After applying for a license, you must submit
your contracts of registration with the POEA because you
contracts must be transparent. The state has the right to
Apropos to the present case, once there is a determination as to the
review your policies. After all, it is by permission of the state
existence of such a relationship, the med-arbiter can then decide the
that these filipinos will work outside. Before they can leave
certification election case. As the authority to determine the employer-
outside they must guarantee that you open bank accounts for
employee relationship is necessary and indispensable in the exercise of
their dependents so that the basic salary is immediately
jurisdiction by the med-arbiter, his finding thereon may only be reviewed
remmitted because that is necessary for the survival of their
and reversed by the Secretary of Labor who exercises appellate
dependents.
jurisdiction under Article 259 of the Labor Code, as amended, which
provides:
Take note, illegal recruitment is no longer under the
jurisdiction of the POEA. What is under the POEA is their
ART. 259. Appeal from certification election orders. — Any party franchise to be a recruitment agency. If they commit violation,
to an election may appeal the order or results of the election as their registration will be cancelled.
determined by the Med-Arbiter directly to the Secretary of Labor and
Employment on the ground that the rules and regulations or parts It is only the Sec of Labor who can cancel licenses to recruit
thereof established by the Secretary of Labor and Employment for the and place workers. The administrator of the POEA cannot
conduct of the election have been violated. Such appeal shall be decided cancel registration. It may order suspension but it is only the
within fifteen (15) calendar days. secretary. There must be due process. There must be a
hearing. After the hearing, a decision can be made if it is
When as in this case Secretary Drilon of DOLE rendered a resolution suspension or if it is cancellation of registration. Then the
dated December 15, 1989 reversing the order of the med-arbiter dated findings of fact and reccommendation are drawn up by the
POEA administrator and then submit it to the Sec of Labor.
August 25, 1989 by declaring the existence of an employer-employee
relationship between the parties, such finding cannot be rendered The Sec of Labor can accept it in toto or modify it or whatever.
nugatory by a contrary finding of the labor arbiter in a separate dispute But he is the deciding factor.
for money claims between same parties.
Remember, it is a modified filipino corporation that can be
given license to recruit or place. The constitutional filipino
2. Inter-union controversies.
corporation is 60% filipino owned capital and 40% foreign.
These are conflicts between unions, especially big unions. It
That will not do in recruitment. It has to be 70-30, by provision
is handled by the director of the BLR.
of law by the Labor Code. The same has been reiterated in
RA 8042 and 10022
There is also big controversies among unions when they will
have to be chosen their representatives of labor to the
You cannot put up a placement/recruiting agency if you are
tripartite meetings to decide policies.
related to any officer of the POEA or DOLE within the 5th
degree fo consanguinity or affinity. These are all rules. If you
What is this ___ of labor on the issue of separating employees
violate that, you are open to be cancelled, your registration
compensation from the SSS or there is a place in the board of
will be cancelled. If you have Board members that are not
the SSS to be filed up by labor, who wil be representative. So
filipino, if you have offices that are not filipino, you are also
the unions will be fighting. How will you come up with a
open to be cancelled or denied of your registration.
representative chosen by organized labor. That is handled by
the Director of the BLR because all the unions are
If you have a connection by way of capitalizing or owning a
registered with the BLR. Those are administrative cases and
travel agency or your officer is also an officer of a travel
it can cause so much friction and clashes between big unions.
agency, interlocking directors of a travel agency and manning
What is the policy of the union with respect to housing
agency, these are considered as violations, and it can cost you
financing. There is already a huge backlog of housing. Then,
your registration of your manning/manpower agency.
where will the Philippines get funding from that? Is labor
endorsing the policy of the government to borrow from
2. Disciplinary Actions v OCW
outside so that there will be funding for mass housing for the
The POEA can also engage in disciplinary actions of individual
workers. What is the limit of low-cost housing so that it can
OFWs that have violated the rules.
be affordable to the daily-wage earner. So those are policy
Ex. Prohibition in deployment to Syria, Iraq, Sudan or Personality vs. Standing

Afghanistan.
Personality
All of the sudden you have filipinos there and they are Sections 1 and 2, Rule 3 of the 1997 Rules of Civil Procedure read:
captured by hostile forces. So why did this happen? So it is a
violation. If you are caught and you are an individual OFW, Section 1. Who may be parties; plaintiff and defendant. –
your passport may be cancelled and you cannot apply for Only natural or juridical persons, or entities authorized by law
another passport within a certain given number of years may be parties in a civil action. The term "plaintiff" may refer to
because you have violated the no deployment of filipinos to the claiming party, the counter-claimant, the cross-claimant, or
war-torn areas. the third (fourth, etc.) -party plaintiff. The term "defendant" may
refer to the original defending party, the defendant in a
Story of drivers in Iraq, Syria etc. counterclaim, the cross-defendant, or the third (fourth, etc.) -party
defendant.
The filipinos are recruited to be drivers in Kuwait. After a
year, and their contract has expired, they are enticed with Section 2. Parties in interest. – A real party in interest is the
higher pay to deliver fuel and other necessity to war-torn party who stands to be benefited or injured by the judgment in the
Syria. Nganong dili mani sila mahadlok mamatay? Kay the suit, or the party entitled to the avails of the suit. Unless
pay is good. 3x higher than what they received under their otherwise authorized by law or these Rules, every action must be
contract, second, its is the American armed forces who is prosecuted or defended in the name of the real party in interest.
recruiting them, because the americans contract out their
logistics. They will have to supply their forces that is spread Under Sections 1 and 2 of Rule 3, only natural or juridical persons,
thinly. Food, water and fuel. These drivers move in or entities authorized by law may be parties in a civil action, which
convoys 20 to 30 trucks, so they feel safe. Dala na silag must be prosecuted or defended in the name of the real party in
bugas, acetylene for gas, canned goods, they are provided. interest. Article 44 of the Civil Code lists the juridical persons with
They feel safe until they are captured. The lure of money. capacity to sue
October 22, 2020 Part 2B by Hannah Keziah Dela Cerna Section 4, Rule 8 of the Rules of Court as amended mandates that,
“Facts showing the capacity of a party to sue or be sued or the
Why are these drivers so emboldened to drive nga di man sila mahadlok authority of a party to sue or be sued in a representative capacity or
mamatay? First of all, the pay is very good, sometimes 2-3 times higher the legal existence of an organized association of persons that is made
than what they receive for their entire contract of one year. Second, it a party, must be averred.”
is the American force itself who is recruiting them because they no
longer have personnel. They contract out their transportation and Locus Standi or Legal Standing
logistical means. Then they have to supply their forces that are spread This doctrine requires a litigant to have a material interest in the
thinly among the Syrian rebels to fight al-Assad. And they have to be outcome of the case (UST Golden Notes 2019).
supplied with petroleum [and] fuel. They have to be supplied with food,
water, etc. And then these drivers, they move in convoys, twenty to Real Party in Interest v. Locus Standi (UST Golden Notes 2019)
thirty trucks, so they feel safe. Magdala na sila og bugas. Magdala na
sila’g acetylene or gas. They bring a lot of canned goods. They are Real Party in Interest Locus Standi
provided and they move in convoys. They feel safe until they are A party that: Right of appearance in a court
captured. That is the problem—the lure of money. 1. Stands to be of justice on a given question.
benefited or injured
Now, you must remember that in one instance, the ban issued by the by the judgment in
POEA for deployment in other countries was questioned with the the suit; or
Supreme Court. And in this question, what was questioned was the 2. Is entitled to the
violation of the freedom to travel which is a constitutional right that is avails of the suit
protected under Section 6 of Article III of the 1987 Constitution. The interest must be ‘real’, The one who sues must show
which is a substantial interest, that he has sustained injury or
1987 Constitution, Section 6. x x x Neither shall the right to as distinguished from a mere will sustain a direct injury as a
travel be impaired except in the interest of national security, expectancy or a future, result of a government action,
public safety, or public health, as may be provided by law. contingent, subordinate, or or has a material interest in the
consequential interest (Rayo v. issue affected by the challenged
Question: Can the association of Recruitment & Placement Agencies Metrobank). official act (Funa v. Agra).
and Manning Agencies, file a petition to question the travel ban orders Unless otherwise authorized by Significant in cases involving
of the POEA? the law or by the Rules, every questions of
action must be prosecuted or constitutionality, because it is
Answer: The Supreme Court has answered that in the negative. The defended in the name of the one of the essential requisites
association of placement and recruitment agencies has no standing to real party in interest before such questions may be
question. According to the SC, you are not the ones travelling so it is not (Stronghold Insurance Company judicially entertained (Riano,
your right to travel that stands to be jeopardized or curtailed by this v. Cuence). 2014).
order. The ones who are travelling are the OFWs. They are the ones
who have personality and standing to question the ban. Not you. You Disciplinary Action against Overseas Contract Workers (OCWs)
have not been commissioned by the OFWs to stand for and in their
behalf. You are questioning these orders as destructive of your business OFWs that violate can suffer the penalty of cancellation of their
because you can no longer deploy them. That is not a violation of your passports and other fines or punishment that can be meted out to them.
right to travel; that is a violation of your business rights. But you can Of course, that can be done only AFTER NOTICE and HEARING.
still recruit and deploy in other countries.
REGIONAL DIRECTOR
Take note of the difference between personality and standing. What is Regional Director of Labor
the difference? Review your procedural law/remedial law so that you will
have a clear idea of what is personality and what is standing.  Article 128 of the Labor Code – Visitorial Powers
 Article 129 of Labor Code – Adjudicatory Powers nalang. Your funds will be attached, and you cannot move until and
unless you comply with the execution order.
Visitorial Powers
Q: Can you appeal the execution order?
a. Occupational Health and Safety A: Yes, you can appeal.
b. Labor Standards – basically concerned about violations of the
Minimum Wage Law, Eight-Hour Law, etc. (under Book III of Q: How much time to do you have to appeal?
the Labor Code) A: 5 days within receipt of order
Visitorial Powers to Enforce Health and Safety Q: Where do you appeal?

This is where the Regional Director of Labor, as the duly authorized A:
representative of the Secretary of Labor, can issue suspension of  Labor Standards (monetary) – NLRC
operations if from the inspection it is found out that there is grave and  Occupational Health and Safety – Secretary of Labor within 5
immediate danger to the life or limb of the employees or other third days from receipt of order
persons. It does not even need an ex parte hearing. On the basis of the
report of the occupational health and safety inspector, the order to Art. 128. Visitorial and enforcement power.
suspend the operation can be issued immediately by the Regional
Director of Labor. a. The Secretary of Labor and Employment or his duly
authorized representatives, including labor regulation
Obligation of Regional Director of Labor officers, shall have access to employer’s records and
premises at any time of the day or night whenever work
 To call a hearing within 24 hours from the issuance of the is being undertaken therein, and the right to copy
suspension order to determine whether the order should be therefrom, to question any employee and investigate
lifted or continued. – This is the sole issue, and this is where any fact, condition or matter which may be necessary to
the employer can appeal before the Regional Director of Labor determine violations or which may aid in the
and plead his case. He must be able to demonstrate that he enforcement of this Code and of any labor law, wage
will substantially remove the danger before the Secretary’s order or rules and regulations issued pursuant thereto.
duly authorized representative can lift the suspension order.
b. Notwithstanding the provisions of Articles 129 and 217
Take note, there is no need even for an ex parte hearing. An injunction of this Code to the contrary, and in cases where the
can have an ex parte hearing (granted on the request of and for the relationship of employer-employee still exists, the
benefit of one party only; without requiring all of the parties to the Secretary of Labor and Employment or his duly
dispute to be present) for an issuance of a TRO. That is required by the authorized representatives shall have the power to
Rules of Court. [In the granting of a TRO,] there must be at least an ex issue compliance orders to give effect to the labor
parte hearing—the one in whose favor the restraining order is to be standards provisions of this Code and other labor
issued, appears in court, and provides evidence that there is a necessity legislation based on the findings of labor employment
for this order to be issued, otherwise the decision of the court hearing and enforcement officers or industrial safety engineers
the merits of the case will be rendered nugatory or that if the restraining made in the course of inspection. The Secretary or his
order is not issued, the damage to the petitioner is far greater than the duly authorized representatives shall issue writs of
damage that the respondent will suffer because the restraining order execution to the appropriate authority for the
has been issued. But in cases of occupational health and safety because enforcement of their orders, except in cases where the
it is danger to life or limb, there is NO NEED EVEN FOR AN EX PARTE employer contests the findings of the labor employment
HEARING. The findings of the occupational health and safety inspector and enforcement officer and raises issues supported by
is enough but then the Regional Director has to call for a hearing within documentary proofs which were not considered in the
24 hours. The sole issue there is to determine whether the suspension course of inspection. (As amended by Republic Act No.
of operations in the workplace will be lifted or will be continued. 7730, June 2, 1994).
Visitorial Powers with regard to Labor Standards An order issued by the duly authorized
Once there is a finding of violation, what follows are COMPLIANCE representative of the Secretary of Labor and
ORDERS. The Regional Director can issue compliance orders. Employment under this Article may be appealed to
the latter. In case said order involves a monetary
Example: The following are the list of your workers, the award, an appeal by the employer may be perfected only
amounts they are receiving, the amounts they should be upon the posting of a cash or surety bond issued by a
receiving under the Minimum Wage Law, the difference reputable bonding company duly accredited by the
between these amounts and the minimum wage which they Secretary of Labor and Employment in the amount
should be receiving. equivalent to the monetary award in the order appealed
from. (As amended by Republic Act No. 7730, June 2,
In view of the above, up to the period of three (3) years back, 1994)
the following amounts are what you owe in the aggregate to
your employees. Comply with due haste in the interest of c. The Secretary of Labor and Employment may likewise
justice. order stoppage of work or suspension of
operations of any unit or department of an
If di pa gani ka mucomply, you disregard it, the next thing is order of establishment when non-compliance with the law or
execution. the Regional Director will issue an ORDER OF EXECUTION implementing rules and regulations poses grave and
(writ of execution in the provision), give it to the sheriff. And the sheriff imminent danger to the health and safety of workers in
will attach the bank accounts of the employer subject to visitorial the workplace. Within twenty-four hours, a hearing
powers. He cannot do anything about that. He can question the shall be conducted to determine whether an order for
execution order only by offering documentary evidence not otherwise the stoppage of work or suspension of operations shall
considered in the course of inspection. He cannot offer payroll records be lifted or not. In case the violation is attributable to
anymore because that should have been presented to the labor the fault of the employer, he shall pay the employees
inspector during the inspection. He must comply, if he does not, sorry concerned their salaries or wages during the period of
such stoppage of work or suspension of operation.
xxx In visitorial powers exercise, can there be a determination of existence

or non-existence of employer-employee relationship? This has been
Adjudicatory Powers answered in the case of Bombo Radyo v. Secretary of Labor.
[The complaint in Article 129 is] filed by complainants who can be: BOMBO RADYO v. SECRETARY OF LABOR
 an agricultural worker, G.R. No. 179652. March 6, 2012
 commercial worker, EN BANC
 or a kasambahay. RESOLUTION
VELASCO, JR., J.
Individual Complainant
The individual complaint in the aggregate must NOT exceed 5,000 FACTS [as narrated by Father]: There was an employee complaining
pesos. If it exceeds 5,000 pesos, it will be endorsed to the Labor Arbiter. and asking for inspection and the employee is saying I am not paid
night shift differential and I am paid less than minimum wage. I am
More than one complainant not paid for overtime. I begin my work after 11 PM and yet I am not
If there is more than one complainant against one and the same paid night shift differential.
employer and one of them has money claims in the aggregate in excess
of 5,000 pesos, then all of the complaints will be turned over to the Employer’s Response: Bombo Radyo says complainant is a talent;
Labor Arbiter. It cannot be that only the employee that exceeds the sum he is not an employee. He works past 11 in the evening because he
of 5,000 will be turned over. Why? To prevent conflict of decisions. If is a dramatista in the recording of the radio drama. Why 11 in the
you just move one, the LA might find that there is a violation of law and evening? Because the studio is no longer used in broadcasting. That
the remaining with the Regional Director might say there is no violation is the time the studio is free to be used for recording of dramas.
of the law. So, there is a conflict of decisions when they have the same Because he is a talent, he is an independent contractor. There is no
factual basis. So, the entire group must move over to the Labor Arbiter employee-employer relationship. He is not covered by the Minimum
where the LA can adjudicate the matters in one unified action without Wage.
danger of conflict of decision.
It was further argued by Bombyo Radyo that the Regional Director
In a labor inspection case, there is no such limit as not exceeding of Labor has also no competence to determine the existence of
5,000 [pesos]. Even if the amounts found to have been unpaid and the employee-employer relationship. It must be given to the Labor
wages that have been inspected, they can still be served in the visitorial Arbiter.
powers exercise. There is NO LIMIT to the amount.
First Decision of the Supreme Court [as told by Father]: It is
Art. 129. Recovery of wages, simple money claims and other true. It should be given to the Labor Arbiter (this was by the Second
benefits. Upon complaint of any interested party, the Regional Division penned by Justice Tinga in 2009).
Director of the Department of Labor and Employment or any of
the duly authorized hearing officers of the Department is Motion for reconsideration (en banc): The Regional Director of
empowered, through summary proceeding and after due notice, to Labor, in the exercise of visitorial powers, can determine the
hear and decide any matter involving the recovery of wages and existence of employer-employee relationship.
other monetary claims and benefits, including legal interest,
owing to an employee or person employed in domestic or From the Full Text: “The determination of the existence of an
household service or househelper under this Code, arising from employer-employee relationship by the DOLE must be respected. The
employer-employee relations: Provided, That such complaint does expanded visitorial and enforcement power of the DOLE granted by
not include a claim for reinstatement: Provided further, That the RA 7730 would be rendered nugatory if the alleged employer could,
aggregate money claims of each employee or househelper does not by the simple expedient of disputing the employer-employee
exceed Five thousand pesos (P5,000.00). The Regional Director or relationship, force the referral of the matter to the NLRC. The Court
hearing officer shall decide or resolve the complaint within thirty issued the declaration that at least a prima facie showing of the
(30) calendar days from the date of the filing of the same. Any sum absence of an employer-employee relationship be made to oust the
thus recovered on behalf of any employee or househelper pursuant DOLE of jurisdiction. But it is precisely the DOLE that will be faced
to this Article shall be held in a special deposit account by, and with that evidence, and it is the DOLE that will weigh it, to see if the
shall be paid on order of, the Secretary of Labor and Employment same does successfully refute the existence of an employer-
or the Regional Director directly to the employee or househelper employee relationship.
concerned. Any such sum not paid to the employee or househelper
because he cannot be located after diligent and reasonable effort If the DOLE makes a finding that there is an existing employer-
to locate him within a period of three (3) years, shall be held as a employee relationship, it takes cognizance of the matter, to the
special fund of the Department of Labor and Employment to be exclusion of the NLRC. The DOLE would have no jurisdiction only if
used exclusively for the amelioration and benefit of workers. the employer-employee relationship has already been terminated, or
it appears, upon review, that no employer-employee relationship
Any decision or resolution of the Regional Director or hearing existed in the first place.
officer pursuant to this provision may be appealed on the same
grounds provided in Article 223 of this Code, within five (5) The Court, in limiting the power of the DOLE, gave the rationale that
calendar days from receipt of a copy of said decision or resolution, such limitation would eliminate the prospect of competing
to the National Labor Relations Commission which shall resolve conclusions between the DOLE and the NLRC. The prospect of
the appeal within ten (10) calendar days from the submission of competing conclusions could just as well have been eliminated by
the last pleading required or allowed under its rules. according respect to the DOLE findings, to the exclusion of the NLRC,
and this We believe is the more prudent course of action to take.”
The Secretary of Labor and Employment or his duly authorized
representative may supervise the payment of unpaid wages and Comment of Father: I find a little anomaly here. The regional office
other monetary claims and benefits, including legal interest, of the director of labor is in enforcement mode. He is like a police
found owing to any employee or househelper under this Code. (As [officer]. He is just enforcing the law. He cannot determine legal
amended by Section 2, Republic Act No. 6715, March 21, 1989) questions. You need at the very least a quasi-judicial office like the Labor
Arbiter and yet, Justice Arturo Brion, Jr. (Father says it is Justice Brion
but the decision indicates that the ponente is Justice Velasco), who
penned the decision of the majority, says that the regional director of
labor has powers, is competent, has jurisdiction to determine the c. Cases arising from the interpretation or
existence of ee-er relationship in the exercise of his visitorial powers. implementation of collective bargaining agreements
And so far, that is the rule. That is like saying the police has the power and those arising from the interpretation or
to determine whether or not you are the owner of the vehicle that you enforcement of company personnel policies shall be
are driving. Is it the police who can determine that you are lawfully in disposed of by the Labor Arbiter by referring the same
possession of the vehicle? Because the situation in this example is that to the grievance machinery and voluntary arbitration as
the vehicle’s registration is in another’s name. Can the police determine may be provided in said agreements. (As amended by
that you are the rightful owner of the vehicle? No. That is subject to Section 9, Republic Act No. 6715, March 21, 1989)
judicial determination.
The Labor Arbiters shall have original and exclusive jurisdiction to hear
Visitorial power is an enforcement of the law. That is why you cannot and decide, the following cases involving all workers, whether
claim due process. Pareha ra na sa tagaan ka’g ticket kay ‘No Parking’. agricultural or non-agricultural:
Alangan naman muingon ka sa pulis og, “Nganong gisilutan man ko nimo
wa pa man ko nimo dad-a sa atubangan sa hukom? A judge should 1. Unfair labor practice cases;
condemn me only after he has heard me, and I have presented my
evidence.” Can you claim that? No. Di ka gusto mubayad pero birahun 2. Termination disputes;
na imung sakyanan kay no parking man na. Di ka makareklamo na
violation of due process! Enforcement ra na. Mao nay visitorial powers. 3. If accompanied with a claim for reinstatement,
those cases that workers may file involving wages,
That is the difference between 128 and 129. Article 129 is really rates of pay, hours of work and other terms and
adjudicatory powers—power to judge. He is acting as a judge in that conditions of employment;
limited sphere.
4. Claims for actual, moral, exemplary and other
October 29, 2020 Part 1A by Francis Jeric Emuy forms of damages arising from the employer-
employee relations;
We are on adjudication of Labor Cases. Now we are in Labor Arbiter
under article 224 (217 in the Labor Code). 5. Cases arising from any violation of Article 264 of
this Code, including questions involving the legality
LABOR ARBITER of strikes and lockouts; and
Art. 217. Jurisdiction of the Labor Arbiters and the 6. Except claims for Employees Compensation, Social
Commission. Security, Medicare and maternity benefits, all other
claims arising from employer-employee relations,
a. Except as otherwise provided under this Code, the including those of persons in domestic or household
Labor Arbiters shall have original and exclusive service, involving an amount exceeding five
jurisdiction to hear and decide, within thirty (30) thousand pesos (P5,000.00) regardless of whether
calendar days after the submission of the case by the accompanied with a claim for reinstatement.
parties for decision without extension, even in the
absence of stenographic notes, the following cases Unfair Labor practice
involving all workers, whether agricultural or non-
agricultural: The parties in an unfair labor practice case includes the employer, the
union or a third party. Normally, it is the employer who is the
1. Unfair labor practice cases; respondent. The employer commits the ULP in either of the 3 ways:
2. Termination disputes; 1. Interference in the right to self-organization by the

employees
3. If accompanied with a claim for 2. Restraining the exercise of the right to self-
reinstatement, those cases that workers may organization
file involving wages, rates of pay, hours of 3. Coercion (i.e forcing them not to join or resign from
work and other terms and conditions of a union)
employment;
When may the Labor Arbiter be deprived of jurisdiction over Unfair Labor
4. Claims for actual, moral, exemplary and other
Practice? Can he be deprived? Two instances:
forms of damages arising from the employer-
employee relations; 1. When the parties (complainant and respondent), jointly file a
manifestation that they have agreed to submit the dispute to
5. Cases arising from any violation of Article 264 a voluntary arbitrator (permissive jurisdiction of VA)
of this Code, including questions involving the
legality of strikes and lockouts; and  This is superior because the constitution
prefers voluntary arbitration over the
6. Except claims for Employees Compensation, compulsory arbitration. Hence, the LA
Social Security, Medicare and maternity has no choice but to allow voluntary
benefits, all other claims arising from arbitration.
employer-employee relations, including those
of persons in domestic or household service,
UIC v. SECRETARY OF LABOR
involving an amount exceeding five thousand
G.R. No. 178085 – 178086, September 14, 2015
pesos (P5,000.00) regardless of whether
accompanied with a claim for reinstatement.
Facts: UIC administration refused to recognize the membership in
b. The Commission shall have exclusive appellate
the union of the chairpersons of the departments, head teachers and
jurisdiction over all cases decided by Labor Arbiters.
student councilors on the ground that they are occupying  So that the secretary of labor will be unhampered in making
managerial, supervisory or confidential positions. a comprehensive resolution of the dispute between the union
and the administration.
Union filed a notice of strike on the ground that the same is a ULP.
The secretary of labor assumed jurisdiction of the dispute before the
completion of the cooling-off period. At the time of such assumption, Termination disputes
the process for conciliation and mediation (NCMB) was still on-going.
The conciliators convinced the parties to submit the particular issue  Take note, there is no filing fee in the Labor arbiter. If
of membership in the union. The Union filed a ULP case with the submitted to the voluntary arbitration, there is a need to pay
Labor Arbiter regarding the separated issue on membership of the the panel of arbitrators.
chairpersons of the departments, head teachers and student. This
would later be brought to voluntary arbitration. The voluntary Can a person dismissed because of a vote of the Board of directors file
arbitrator decided that the chairpersons of the departments, head an illegal dismissal case in the Labor Arbiter?
teachers and student councilors are not included in the union
If termination results from the act of the BOD, the labor arbiter has no
because they occupy managerial positions.
jurisdiction over the issue. The Labor has no jurisdiction to look into the
internal rules and rulings of the BOD. It is within jurisdiction of the SEC
As a result the union filed a second notice of strike. The individuals
or the intracorporate court.
ruled upon as not part of the union took part of the strike. The
Secretary of Labor assumed jurisdiction over the second strike. At October 29, 2020 Part 1B by Dianne Marie Isidor
the same time, the decision of the voluntary arbitrator became final
and executory. Genral Rule: Labor arbiter you cannot interfere with actions of the
board of directors that have not renewed appointment until termination
As far as the UIC administration is concerned, the said persons ruled of a particular employee whose position is placed under the discretion
upon as not part of the union are no longer employees of the school of the board of directors.
because they went on a strike despite not being part of the
concerned bargaining unit. The Secretary of LaborJ ordered that the Put that in mind that is the general rule. What is the exception if any?
said employees be reinstated on the ground that upon the There are two exceptions to that general rule.
assumption of jurisdiction by the Secretary of Labor, all strikes are
enjoined and all must return to work. XPNs:
Ruling: The issue of whether or not the Respondent Employees are 1. Gregorio Araneta University Foundation vs Teodoro 167
confidential employees has long been settled and its reexamination SCRA 79 1988
is already barred by res judicata. In VA Case No. XI-354- 02-94 (the
"Arbitration Case"), the panel of voluntary arbitrators had already GREGORIO ARANETA UNIVERSITY FOUNDATION, v.
determined that the Respondent Employees are confidential ANTONIO J. TEODORO and NATIONAL LABOR
employees who must be excluded from the bargaining unit. The RELATIONS COMMISSION
panel’s decision dated November 8, 1994 and resolution of the G.R. No. 75583, November 8, 1998
motion for reconsideration dated February 8, 1995 became final and
executory after we dismissed the Union’s petition for certiorari on Facts (As narrated by father): Who was this Teodoro? Mr. Teodoro
June 21, 1995 without any further incidents. The Arbitration Case has been a successful teacher in the College of Agriculture of Araneta
having attained finality, the issues resolved therein may no longer University.After teaching for almost ten years, he was promoted by the
be disturbed or modified. administrator. He was told: “From now on, you will become Vice-
President for administration.” So he was appointed by the board, by the
UIC cites willful disobedience and "loss of confidence" as the grounds vote of the board. Now, after another 10 years that he was renewed
for dismissing the Respondent Employees. We hold that the willful every year, all of a sudden, one year comes, the board did not renew
act of refusing to leave the Union is sufficient basis for UIC to lose its his appointment. And so he receives a letter from the President stating
trust and confidence on Respondent Employees. There was just that:”You are effectively terminated and you can apply for optional
cause for dismissing the Respondent Employees. Our conclusion retirement and you can collect your retirement pay etc. You are no
follows the same reasoning why we finally adopted the doctrine that longer connected with this school because the board has not renewed
confidential employees should be excluded from the bargaining unit you.”
and disqualified from joining any union employees should not be
placed in a position involving a potential conflict of interests. What did Mr. Teodoro do? Mr. Teodoro filed an illegal dismissal.
Secretary cites Article 248 of the Labor Code to support his conclusion The Labor Arbiter entertained the complaint. And then it was upheld by
that Respondent Employees were illegally dismissed. Article 248(a) the NLRC. And then they went to the SC. Because at that time there was
considers as unfair labor practice an employer’s act of interfering still no Court of Appeals. The step from NLRC to the CA was not yet
with, restraining or coercing employees in the exercise of their right there. After NLRC, you go straight to the Supreme Court.
to self-organization. However, it is well established that the right to
self-organization under the Labor Code does not extend to So, Gregorio Araneta University Foundation went to the SC to nullify the
managerial and confidential employees, while supervisory employees affirmation of the LA’s decision by the NLRC. But the case was dismissed
are not allowed to join the rank-and-file union by the SC. Why?
SC Ruling: The SC said, the Labor Arbiter can look into and disregard
Take note: after stating the facts of the case, Father did not discuss the
the decision of the Board of Directors of the University. Why?
ruling. He just wanted to show an example of the transition of the ULP
The Sc said, as to his position, as administrative head (VP for
case from the Labor Arbiter to voluntary arbitration.
administration), the vote of the Board of Directors is sufficient to take
2. Assumption of jurisdiction by the Secretary of labor. him out of that position. But that is not enough to drive him out of the
University. Why?
 Whether it is money claims, interpretation of contracts or
unfair labor practice, they are all consolidated with the Because he is a tenured faculty member. He has attained regularity of
Secretary of Labor. status and he has not yet investigated for any wrongdoing in his
teaching capacity. He may be removed from VP of administration but What did they try to avoid?
that just means that he goes back to teaching. Why did he merit being
cut off from the University? That is ILLEGAL DISMISSAL and that is They tried to avoid the obligations of an employer with respect to a
under the purview of the LABOR ARBITER. regular employee. The regular employee is entitled to security of tenure.
Salafranca is already a regular employee. He has served for 12 years.
So, keep that in mind. Correct ang board pagtangtang niya sa Security of tenure has vested in Salafranca and that cannot be defeated
adminstration but he should have gone back to teaching because he had by the mere rubric of amending the bylaws making that position subject
become a regular teacher and they should have allowed him back to to appointment of the Board of Trustees. And then making him lose his
their faculty and not throw him out of the University. security of tenure. So, the SC voided the action of the Board of Trustees.
Remember, you cannot deprive an ordinary employee of a security of

tenure by the mere fact of creating a new position in the bylaws or in
2. Salafranca vs PhilAm Life 300 SCRA 469 1998 the articles and making it subject to a vote by the Board of Trustees.
Security of Tenure is superior to an afterthought of amending the
ENRIQUE SALAFRANCA, v. PHILAMLIFE (PAMPLONA) bylaws.
VILLAGE, HOMEOWNERS ASSOCIATION, INC., BONIFACIO
DAZO and THE SECOND DIVISION, NATIONAL LABOR So, remember these two cases.
RELATIONS COMMISSION (NLRC)
G.R. No. 121791, December 23, 1998 The Gregorio Araneta University case has been asked in the bar
examination. The second one has not been asked yet. You might meet
this in corporation law, commercial law as to the limits of the powers of
the Board because they are supposed to exercise such powers as
Facts (As narrated by father): What is this case about?
expressly provided by law. Such powers as may be implied in what is
expressed by law or by the articles or bylaws or such powers that are
PhilAm Life here is the organizer of the first class subdivision along EDSA incidental to their corporate powers. It might come out in Labor or in
in Manila. Now, there is this subdivision and Mr. Salafranca was the head remedial law. They might ask where should Salafranca file his proper
of security. So, there were those who manned the gates and there were remedy? Is is with the intracorporate court and question the resolution?
security officers that were roving on motorcycles. He was the head and Or it should be filed with the Labor Arbiter? The question might be
it was on a 24 hour basis. After serving for more than 10 years as the framed that way.
head of security, the resident began to complain that he was reckless in
stopping overspeeding cars within the subdivision compound. They had TERMINATION
erected these different bumps. Slow down the vehicles but there were
still people who were overspeeding and he was not arresting them. So, Remember: Termination is the principal cause of action. With
many subdivision owners were voicing that out in the general meeting. termination you can bring as an additional cause of action, MONEY
So the executive committee met and the lawyer there suggested that: CLAIMS. You can bring additional cause of action by malicious,
“Here is what we will do: we will amend the bylaws of the Homeowner’s malevolent or a termination in bad faith. So you are entitled to moral
Association and we will put there in the bylaws his new position of Head damages. That is an additional cause of action.
of Security. And the Head of Security shall be appointed by the Board of
Trustees of the Homeowner’s Association.” DAMAGES
So, they amended the bylaws. They put down, head of security will be Your dismissal is already ILLEGAL. But the manner by which you were
appointed every year by the Board of Trustees. After the amendment, dismissed is malevolent, malicious or in bad faith. So, therefore, you are
asking for moral damages. Remember, that kind of additional cause of
there was no problem. Because the Board of Trustees just waited for
the end of the fiscal year. At the end of the fiscal year, general assembly action cannot be split from an illegal termination case. If you forgot to
again and it was announced that the Board had voted to terminate include that in your illegal dismissal complaint before the Labor Arbiter,
because the LA now CAN AWARD DAMAGES arising from employer-
Salafranca from his service of more than 12 years. He was given a
employee relationship. Then, you forfeit it. It’s res judicata. You can no
separation pay.
longer bring it back.
What did Salafranca do?
You know there was a time, the early part of the enactment of PD 442,
Sa;afranca filed an illegal dismissal. And he said: “How come that I was when damages that arose from an illegal dismissal was not within the
not investigated? Why can the Board just elect that I should no longer power of the LA to adjudicate. So, you have to go to the regular courts
be holding my position? Is it not that I should be investigated for the to ask for damages for the manner by which you were dismissed. But,
that ended when the Labor Code was amended and it provided damages
irregularity or wrongdoing that I have done?Because I am entitled to
security of tenure.” arising from employer-employee relations. And with that the decided
case of Santa Ines vs NLRC, the SC finally said (Father did not
provide for the complete citation of the case):
The Defense said:
Yes, you are entitled to security of tenure BEFORE. BUT NOW, you work Damages arising from the manner of dismissal are no longer
at the pleasure of the Board. Because your position now is at the subject to a separate complaint with the regular courts but may now be
pleasure of the Board. Read the amended bylaws. You are appointed on ruled upon by the Labor Arbiter.
a year to year basis.
Another case:
Salafranca said:
PEPSI COLA v. ABOITIZ
That is unfair to me.
(Father did not provide for the complete citation of the case)
SC Ruling: The SC said, what the Board did in amending the Bylaws
and having it modified by the Homeowners and filing it with the SEC; Facts (as narrated by father): This is not the local Aboitiz. This was
that is called a SUBTERFUGE. Aboitiz (Colombian) who was assigned by the Pepsi Cola conglomerate
to be the country head of the Pepsi Cola in the Philippines.
What happened? dispute but the Civil Code. Because what is involved here is slander. You
are talking here about libel. That is a different cause of action.
There was this manager of the Pepsi Cola Plant of Muntinlupa. It was a
Christmas party and gathered there were all of his employees and their A mode of termination can be included in the cause of action of
families including the family of the manager. They all gathered there. termination if it is capricious, malicious, malevolent or whimsical. But if
Then, all of a sudden, Mr. Aboitiz, the country head of Pepsi Cola shows it is slanderous, it’ snot covered, that’s a separate cause of action. That
up. And when he arrived at the party, he scolds the manager. is the ruling in Pepsi Cola. We’re talking about human relations in the
Civil Code not the Labor Code. When you do an act that is abusive, that
He said: “You are incompetent, you are lazy because you did not launch causes damages to his feelings or to his human dignity etc that is now
this promo.” covered under human relations.
Some promo that he missed. And as a consequence the sales did not
meet the targeted figures that Aboitiz had committed to Pepsi Cola October 29, 2020 Part 2A by Marion Lawrence Lara
International. He was really mad. And he said; “You are fired!. You are
a useless plant manager and the best thing I can do with you is to kick I would like to bring your attention to this case decided in
your ass and you’re fired.” division – February 17, 2020. The opinion of the court is penned by
Justice Gesmundo. The title of the case is Bishop Shinji Amari of Abiko
So, the manager was crying and his family and his wife, they were crying Baptist Church vs Ricardo R. Villaflor, Jr. This is a missionary, preacher
when they heard all of this. And everybody there they were all surprised. of the Baptist Church who was subsequently dismissed. The court took
Then the manager filed an illegal dismissal case. But then the Vice- cognizance of this case. it did not consider this case as a separate and
President for Human Resource prevailed upon him, talked upon him etc. distinct matter covered by their religious tenets or canons (not an
And he offered him a very good separation package. So, he signed a ecclesiastical matter). According to the court, there is an employer-
quitclaim that he has no longer holding Pepsi Cola liable for any and all
employee relationship. Therefore, he was illegally dismissed, and he has
damages or losses related to his employment with Pepsi Cola. When he
to be reinstated. Can you imagine that? A missionary of a Baptist church
signed it, he received his consideration for the compromise agreement.
who was dismissed by the bishop.
Actually a compromise agreement, under the old rule (227) that is
This is not an en banc case. it is decided by a division. This is
covered under Art. 233, it closes all the cases. Hence, you cannot file
an illegal dismissal case. because largely, the church did not have a good lawyer. Its allegations
that it is all a religious question. Read it. It is not a very long decision.
It is just decided this year. it is not yet in SCRA, which is more than a
Now, after the manager received his package, he files a civil case for year late. You can Google this.
damages for the manner by which he was dismissed. And sure enough,
Pepsi Cola moves to dismiss. Transcriber’s note: The above discussion is based on audio
Pepsi Cola’s contention: recordings. If you read the case, the ruling of the SC is not the same
with Father’s discussion.
This is res judicata. That compromise under the law closes all cases that
are filed .What is the legal effect of a compromise agreement? Because BISHOP SHINJI AMARI OF ABIKO BAPTIST CHURCH v.
before it was 227 now it’s already 233. RICARDO VILLAFLOR
G.R. No. 224521, February 17, 2020
Article 233 [227]. Compromise agreements. Any compromise
settlement, including those involving labor standard laws, voluntarily FACTS: Villaflor became a missionary sponsored by Bishop Shinji
agreed upon by the parties with the assistance of the Bureau or the Amari of the Abiko Baptist Church (BSAABC). He was appointed as
regional office of the Department of Labor, shall be final and binding instructor at the Shinji Amari & Missionary Baptist Institute Seminary
upon the parties. The National Labor Relations Commission or any court, (MBIS) effective June 1999. However, a Certification issued by MBIS
shall not assume jurisdiction over issues involved therein except in case Director Joel Nepomuceno states that sometime during the school
of non-compliance thereof or if there is prima facie evidence that the year 200-2007, Villaflor told Bishop Shinji Amari that he cannot
settlement was obtained through fraud, misrepresentation, or coercion. continue teaching due to the distance between San Carlos City,
where his mission work was, and MBIS, Minglanilla, Cebu. His
Compromise agreement with the participation of the Department of appointment as volunteer teacher was thereafter cancelled.
Labor, as witness or anything, closes the door to a further case based
on the compromise agreement with the exception of two instances: BSAABC alleged that since the Baptist Church was already
successfully organized and established at San Carlos City, Villaflor’s
1. If the other party/one of the parties fails to comply with what is mission was already finished. Thus, BSAABC ordered him to be
demanded in the compromise agreement; or transferred to other areas of mission work; but in defiance to the
2. It was obtained through fraud, misrepresentation, or coercion. order, Villaflor refused without justifiable reason. After investigation,
it was discovered that Villaflor’s refusal to leave San Carlos City was
Now, the manager was filing a case against Aboitiz and against Pepsi because he had built his personal house on the land owned by
Cola According to him, I suffered indignity. I was slandered in front of BSAABC without the latter’s consent. After earnest efforts of
my own employees under me and my own family. What he did, no man negotiating with Villaflor and giving him adequate opportunity to
should undergo especially on such an occasion as a Chirstmas party. So, ventilate his side, the members of the BSAABC unanimously voted to
he must answer for it. And because the company, did not correct him remove him as a missionary and cancel his American Baptist
and correct him publicly and I was publicly shamed, he owes me Association (ABA) recommendation as a national missionary. On
damages. And this is not covered by the compromise agreement. November 24, 2011, BSAABC gave a letter to Villaflor informing him
of the following:
Is he correct?
1. removal as a missionary of the Abiko Baptist Church;
SC ruling: Yes, he is correct. Why? Because it is not damages arising 2. cancellation of his ABA recommendation as a national
from employer-employee relationship What is it? It is only arising from missionary; and
employer-employee relationship if the law that will resolve this dispute 3. exclusion of his membership in the Abiko Baptist Church
is the Labor Code. But it is not the Labor Code that will resolve this in Japan.
Villaflor filed a Complaint for Illegal Dismissal with the Labor Arbiter. We said that in termination, you can have an additional cause
of action which is money claims. When you have money claims without
ISSUE: WON the Labor Arbiter has jurisdiction over the case. termination, you file it with the LABOR ARBITER.
RULING: NO. If it is not in excess of Php 5,000.00 individual aggregate

There were 3 separate acts which were decided upon by the BSAABC claim, then, the Labor Arbiter does not have jurisdiction. Who has
(see list above). To the mind of the Court, items (2) and (3) are jurisdiction? It is the REGIONAL DIRECTOR OF DOLE. When it comes to
ecclesiastical matters which this jurisdiction will not touch upon. pure money claims without any prayer of reinstatement (so therefore,
termination is not involved), it must be, at most, Php 5,000.00. it cannot
The SC said discussed the issue whether item (1) is an ecclesiastical be in excess of Php 5,000.00.
affair. In filing a complaint before the LA for illegal dismissal, based
on the premise that Villaflor was an employee of BSAABC/MBIS, it is If it is in excess, then it is already the LABOR ARBITER that
incumbent upon Villaflor to prove employer-employee relationship by has jurisdiction over the labor case.
substantial evidence.
There are 2 money claims case. One that involves San Miguel
The Court opined that there must be an employer-employee Corporation and the other involves Pepsi Cola Bottling Company.
relationship between Villaflor and BSAABC/MBIS. Otherwise,
Villaflor’s removal as missionary of Abiko Baptist Church would not In San Miguel Corporation case (see digest below), there is an
constitute illegal dismissal because it will be within the ambit of employee who filed a complaint with the Labor Arbiter, asking for an
ecclesiastical affair.
order directing his employer that he be given what the employer
promised. What did the employer promise? The employer announced to
The Supreme Court applied the four-fold test to determine whether
there was employer-employee relationship between Villaflor and everyone: “come up with a suggestion, an amendment to our
BSAABC/MBIS. (Bottom line: after a detailed discussion by the manufacturing process, or the way we do things. If we realize savings,
Supreme Court, the four-fold test was not satisfied) you will be given a reward.”
1st element: selection and engagement of the employee According to this employee-complainant, he suggested a
Villaflor presented an Appointment Paper to prove all the elements change and then the employer accepted it and studied it for a couple of
of ee-er relationship. weeks. Then, the employer returned to the employee his suggestions.
The employer said that they are not accepting it and that it will not
SC: This evidence refers to his appointment as an instructor, as well amount to savings. But then, the employer really instituted the changes.
as his duties and responsibilities as such; but to emphasize, Villaflor Employee is claiming that he did the changes himself. The company was
was removed as a missionary of Abiko Baptist Church, not as an able to realize savings but it did not give the employee his financial
instructor of MBIS. There is no evidence or allegation to show that reward according to the company’s promise that they will share a part
Villaflor’s status as a missionary is the same or dependent on his of the savings to the author of the changed that caused the savings.
appointment as an instructor of MBIS. True, the removal as a The Labor Arbiter sympathized with the employee and awarded him the
missionary may have affected respondent’s status as an instructor of
said claim. San Miguel goes to the NLRC which affirmed the Labor
MBIS, but the Court is not convinced that there was an illegal
Arbiter. It reached the Supreme Court.
dismissal. BSAABC’s unrebutted claim that Villaflor voluntarily
excused himself sometime from teaching in MBIS, due to the distance
Q: What did the Supreme Court say?
of the school from his missionary work in San Carlos City, raises
doubt on the allegation of illegal dismissal. A: THIS IS NOT A MONEY CLAIM. This is a claim arising from a civil law
contract. It is an innominate contract? It could be: (example only)
nd
2 element: payment of wages
The fact that Villaflor was designated as “salaried missionary” is not DO UT FACIAS – I give something so that you may do.
determinative of the existence of an employer-employee relationship.
“Salary” is a general term defined as remuneration for services given, FACIO UT DES – I do something so that you may give.
but the term does not establish a certain kind of relationship. Another
point was that the Supreme Court cannot concretely establish These are contracts that have no name (innominate). It is not like sale,
payment of wages absent any clear indication that the amount mortgage, mutuum, etc. which have names. They are all covered by
Villaflor was allegedly receiving came from BSAABC or MBIS, or, at Civil Code and under the jurisdiction of the regular courts. Therefore,
the very least, any indication that ABA, Abiko Baptist Church of the Labor Arbiter does not have jurisdiction to hear and decide these
Japan, and BSAABC and MBIS are one and the same. (There are
controversies arising from an innominate contract.
different allegations here from whose funds were the “love gifts” or
“salary” came from.) Transcriber’s note: Facts no longer included because Father’s
explanation of the facts was much easier to understand.
3rd element: power of dismissal
Dismissal is inherent in religious congregations as they have the SAN MIGUEL CORPORATION v. NLRC
power to discipline their members. G.R. No. 80774, May 31, 1988
4th element: power to control the employee’s conduct
HELD: While paragraph 3 above refers to "all money claims of
The Appointment Paper did not prove power of control. The Court workers," it is not necessary to suppose that the entire universe of
sees that Villaflor’s appointment as instructor or BSAABC/MBIS’s money claims that might be asserted by workers against their
educational institution was by virtue of his membership with the
employers has been absorbed into the original and exclusive
Abiko Baptist Church. It is one of his duties as a missionary/minister
jurisdiction of Labor Arbiters.
of the same.
In the first place, paragraph 3 should he read not in isolation from
Other than the Appointment Paper, no other evidence was adduced
but rather within the context formed by paragraph 1 (relating to
by Villaflor to show employer-employee relationship. Thus, Villaflor unfair labor practices), paragraph 2 (relating to claims concerning
was not able to sufficiently prove the existence of an employer- terms and conditions of employment), paragraph 4 (claims relating
employee relationship which is the first requirement to claim relief in
to household services, a particular species of employer-employee
a labor case.
relations), and paragraph 5 (relating to certain activities prohibited Corporation under certain circumstances. Thus, whether or not an
to employees or to employers). It is evident that there is a unifying enforceable contract, albeit implied and innominate, had arisen
element which runs through paragraphs 1 to 5 and that is, that they between petitioner Corporation and private respondent Vega in the
all refer to cases or disputes arising out of or in connection with an circumstances of this case, and if so, whether or not it had been
employer-employee relationship. This is, in other words, a situation breached, are preeminently legal questions, questions not to be
where the rule of noscitur a sociis may be usefully invoked in resolved by referring to labor legislation and having nothing to do
clarifying the scope of paragraph 3, and any other paragraph of with wages or other terms and conditions of employment, but rather
Article 217 of the Labor Code, as amended. We reach the above having recourse to our law on contracts.
conclusion from an examination of the terms themselves of Article
217, as last amended by B.P. Blg. 227, and even though earlier
versions of Article 217 of the Labor Code expressly brought within The next case is Pepsi Cola Bottling Company vs. Martinez.
the jurisdiction of the Labor Arbiters and the NLRC "cases arising There is a salesman. The employer ran a contest – the best salesman
from employer-employee relations," which clause was not expressly will be rewarded. One will be taken from Luzon, one from Visayas, and
carried over, in printer’s ink, in Article 217 as it exists today. one from Mindanao. The salesman said, “I was the winner here in
Mindanao because the contest says that the salesman who could register
For it cannot be presumed that money claims of workers which do the highest sales of Pepsi Cola products will win a house and lot. I won
not arise out of or in connection with their employer-employee
because I had the highest number of sales. But what did you do? You
relationship, and which would therefore fall within the general
terminated me instead because I complained or questioned your
jurisdiction of the regular courts of justice, were intended by the
judgment.” That is why he is filing a case with the regular courts. The
legislative authority to be taken away from the jurisdiction of the
courts and lodged with Labor Arbiters on an exclusive basis. The judge at that time was Judge Martinez. This is a case in Davao. Judge
Court, therefore, believes and so holds that the "money claims of Martinez was the CFI Judge who later on became a Justice of Supreme
workers" referred to in paragraph 3 of Article 217 embraces money Court. The regular court awarded the prayer of the employee.
claims which arise out of or in connection with the employer-
employee relationship, or some aspect or incident of such Pepsi Cola had to go to the Court of Appeals. The CA affirmed
relationship. Put a little differently, that money claims of workers the CFI. Did the regular courts have jurisdiction over the claim for house
which now fall within the original and exclusive jurisdiction of Labor and lot because of the sales activity? If you follow San Miguel Corp vs
Arbiters are those money claims which have some reasonable causal NLRC, it would seem that CFI has jurisdiction.
connection with the employer-employee relationship.
Supreme Court said that the real cause of action in this case
Applying the foregoing reading to the present case, we note that is TERMINATION. It is because the employee was terminated.
petitioner’s Innovation Program is an employee incentive scheme Termination is under the exclusive original jurisdiction of the Labor
offered and open only to employees of petitioner Corporation, more Arbiter. As an additional cause of action, the question of house and lot
specifically to employees below the rank of manager. Without the can be subsumed in the termination case. it is the Labor Arbiter who has
existing employer-employee relationship between the parties here, jurisdiction in this case.
there would have been no occasion to consider the petitioner’s
Innovation Program or the submission by Mr. Vega of his proposal PEPSI COLA BOTTLING COMPANY v. MARTINEZ
concerning beer grande; without that relationship, private G.R. No. L-5877, March 15, 1982
respondent Vega’s suit against petitioner Corporation would never
have arisen. The money claim of private respondent Vega in this HELD: We rule that the Labor Arbiter has exclusive jurisdiction over
case, therefore, arose out of or in connection with his employment the case.
relationship with petitioner. The next issue that must logically be
confronted is whether the fact that the money claim of private Jurisdiction over the subject matter in a judicial proceeding is
respondent Vega arose out of or in connection with his employment conferred by the sovereign authority which organizes the court; and
relation with petitioner Corporation, is enough to bring such money it is given only by law. Jurisdiction is never presumed; it must be
claim within the original and exclusive jurisdiction of Labor Arbiters. conferred by law in words that do not admit of doubt.
The important principle that runs through these three (3) cases is
that where the claim to the principal relief sought is to be resolved Since the jurisdiction of courts and judicial tribunals is derived
not by reference to the Labor Code or other labor relations statute or exclusively from the statutes of the forum, the issue efore Us should
a collective bargaining agreement but by the general civil law, the be resolved on the basis of the law or statute now in force. We find
jurisdiction over the dispute belongs to the regular courts of justice that law in Presidential Decree 1691 which took effect on May 1,
and not to the Labor Arbiter and the NLRC. In such situations, 1980, Section 3 of which reads as follows:
resolution of the dispute requires expertise, not in labor management
relations nor in wage structures and other terms and conditions of SEC. 3. Article 217, 222 and 262 of Book V of the Labor Code are
employment, but rather in the application of the general civil law. hereby amended to read as follows:
Clearly, such claims fall outside the area of competence or expertise Article 217. Jurisdiction of Labor Arbiters and the Commission. — The
ordinarily ascribed to Labor Arbiters and the NLRC and the rationale Labor Arbiters shall have the original and exclusive jurisdiction to
for granting jurisdiction over such claims to these agencies hear and decide the following cases involving all workers, whether
disappears. agricultural or non-agricultural:
XXXXXXX 1. Unfair labor practice cases;

2. Unresolved issues in collective bargaining, including
The Court notes that the SMC Innovation Program was essentially an those that involve waged hours of work and other terms
invitation from petitioner Corporation to its employees to submit and conditions of employment;
innovation proposals, and that petitioner Corporation undertook to 3. All money claims of workers, including those based on
grant cash awards to employees who accept such invitation and non-payment or underpayment of wages, overtime
whose innovation suggestions, in the judgment of the Corporation’s compensation, separation pay and other benefits provided
officials, satisfied the standards and requirements of the Innovation by law or appropriate agreement, except claims for
Program and which, therefore, could be translated into some employees' compensation, social security, medicare and
substantial benefit to the Corporation. Such undertaking, though maternity benefits;
unilateral in origin, could nonetheless ripen into an enforceable 4. Cases involving household services; and
contractual (facio ut des) obligation on the part of petitioner
5. All other claims arising from employer-employee liquidated damages. This is an employer-employee relationship but
relations, unless expressly excluded by this Code. because of the presence of nominate contract of surety, which cannot
be extricated (disentangle/remove) from the employer-employee
Under paragraphs 3 and 5 of the above Presidential Decree, the case relationship. Labor Arbiter is not a court of general jurisdiction. It has a
is exclusively cognizable by the Labor Arbiters of the National Labor specific jurisdiction. Therefore, it cannot have jurisdiction over this kind
Relations Commission. of money claims involving the Pilot Training Agreement.
Respondent Tumala maintains that his action for delivery of the SINGAPORE AIRLINES LIMITED v. JUDGE PANO
house and lot, his prize as top salesman of the company for 1979, is G.R. No. L-47739, June 22, 1983
a civil controversy triable exclusively by the court of the general
jurisdiction. We do not share this view. The claim for said prize HELD: Upon the facts and issues involved, jurisdiction over the
unquestionably arose from an employer-employee relation and, present controversy must be held to belong to the civil Courts. While
therefore, falls within the coverage of par. 5 of P.D. 1691, which seemingly petitioner's claim for damages arises from employer-
speaks of "all claims arising from employer-employee relations, employee relations, and the latest amendment to Article 217 of the
unless expressly excluded by this Code." Indeed, Tumala would not Labor Code under PD No. 1691 and BP Blg. 130 provides that all
have qualified for the content, much less won the prize, if he was not other claims arising from employer-employee relationship are
an employee of the company at the time of the holding of the contest. cognizable by Labor Arbiters, 3 in essence, petitioner's claim for
Besides, the cause advanced by petitioners to justify their refusal to damages is grounded on the "wanton failure and refusal" without just
deliver the prize—the alleged fraudulent manipulations committed by cause of private respondent Cruz to report for duty despite repeated
Tumala in connection with his duties as salesman of the company— notices served upon him of the disapproval of his application for leave
involves an inquiry into his actuations as an employee. of absence without pay. This, coupled with the further averment that
Cruz "maliciously and with bad faith" violated the terms and
Besides, to hold that Tumala's claim for the prize should be passed conditions of the conversion training course agreement to the
upon by the regular court of justice, independently and separately damage of petitioner removes the present controversy from the
from his claim for back salaries, retirement benefits and damages, coverage of the Labor Code and brings it within the purview of Civil
would be to sanction split juridiction and multiplicity of suits which Law.
are prejudicial to the orderly administration of justice.
Clearly, the complaint was anchored not on the abandonment per
se by private respondent Cruz of his job as the latter was not required
Bantay mo ana ha, kaning termination. Once you have termination of in the Complaint to report back to work but on
the employer-employee relationship, not with the vote of the board of the manner and consequent effects of such abandonment of work
directors or board of trustees, the original jurisdiction is with the Labor translated in terms of the damages which petitioner had to suffer.
Arbiter. Just like the Baptist Church case. you think it involves the
separation of the church and state or it is a religious matter. If there is Stated differently, petitioner seeks protection under the civil laws and
an employer-employee relationship, there is a cause of action and you claims no benefits under the labor Code. The primary relief sought is
cannot escape the jurisdiction of the Labor Arbiter. for liquidated damages for breach of a contractual obligation. The
other items demanded are not labor benefits demanded by workers
But there is always an exception. generally taken cognizance of in labor disputes, such as payment of
wages, overtime compensation or separation pay. The items claimed
Q: What is the exception? are the natural consequences flowing from breach of an obligation,
intrinsically a civil dispute.
A: I will tell you about the case of Singapore Airlines vs Judge Pano.
Additionally, there is a secondary issue involved that is outside the
Singapore Airlines is about a pilot of the said airline. The pale of competence of Labor Arbiters. Is the liability of Villanueva one
airline engaged the services of the pilot, training him for higher of suretyship or one of guaranty? Unquestionably, this question is
qualifications for the Boeing-747 aircraft. He was sent to training and beyond the field of specialization of Labor Arbiters.
said training involves a lot of money. So, he was made to sign a Pilot
Training Agreement. It says there that if he leaves within 1 year from
the termination of his training, he is already a pilot working for Singapore Another case. Here is a manager of a body shop and motor
Airlines, he will have to pay Php 1.6 Million. If he leaves on the second engine repair business. Part of his benefits as manager is that he can
year, he will pay Php 1 Million. If he leaves on the third year, he will pay have his own car repaired and the entire job on his car is paid on
Php 100,000.00. these are called liquidated damages because they installment basis through salary deduction. He had his car repaired or
already agreed to the amount of the damages that it will cost if you overhauled. It comes in thousands. After the repair, it is almost brand
violate the contract. Over and above that, he is also asked to put up a new. Then, the manager leaves and resigns. The employer runs after
surety to answer for damages. Surety that is acceptable to Singapore him. It filed a money claims complaint with the Labor Arbiter. Why? It is
Airlines. So he got an acceptable surety and they cosigned the because it was part of his perks or benefits or remuneration. Thus, the
agreement. Labor Arbiter had jurisdiction to order this particularly resigned
employee to pay the unpaid balance for the work done on his car. Is
Now this pilot, despite this agreement, left the company after that money claims arising from employer-employee relationship? The SC
2 years. Where did he go? To Saudia Airline, which paid higher. The said NO. The Labor Arbiter has no jurisdiction because this is a case of
surety is impleaded and made respondent to the complaint of Singapore mutuum. This is a loan. The manager has to pay back his loan. The
Airlines. The latter filed a case in the regular courts. The pilot moved to extent of the work done or value of the work done, the Labor Arbiter
dismiss the case on the ground of lack of jurisdiction because this is an has no jurisdiction or competence to rule on it. It is within the jurisdiction
employer-employee contract. It should have been filed with the Labor of the regular court. Watch out for that kind of money claims.
Arbiter.
Note: I cannot find the case. The case title cannot be heard from the
The SC said that the one that has jurisdiction is the REGULAR audio
COURTS. It is not the Labor Arbiter. The signs are already there. You
know the answer. Why? Because there is a civil law contract intertwined I have already discussed this case with you decided on
with the employer-employee relationship. Besides that, there is February 19, 2020 penned by Justice Inting. Tumaodos vs San Miguel
Yamamura Packaging Corporation. There is this engineer who retired. are the criteria for accepting that, if your petition is sufficient in form
The employer computed his retirement benefits at Php 4 Million. Come and substance. In form, it is filed by responsible officers covered by
retirement day, he was told, here is your benefit less Php 1.4 Million, certified copy of the resolution of the Board. Etc…. Second, you have
which should go to the credit cooperative where you borrowed money. served copies of your petition to inform all your creditors your plan for
You did not pay the loan. You questioned it. The employer said that they rehabilitation. Remember, the definition of bankruptcy. The final order
are the collectors/agents of the credit cooperative because we had an in financial for rehabilitation is an order to dismiss. Dismiss the case
agreement. In fact, you received the loan through us (employer). We because you are now in financial health and that you can resume on
issued you the check for the loan. The money of the cooperative is with your own resources. So if that is the case, you already have a stay order
us. You received the loan, and we also deduct the payment for the loan. and you bring it to the Labor Arbiter and you file it with the Labor Arbiter.
We cannot do otherwise.
Is the Labor Arbiter covered by the Stay Order? The answer is yes. All
What did the engineer do? The engineer filed a case with the creditor, they are covered. There was one time that it was said they are
Labor Arbiter. What is the case? Money claims for underpayment of not covered. That is the FASAP case, Flight Attendants and Stewards
retirement benefits against San Miguel Yamamura Packaging Associations of the Philippines, the famous Estelito Mendoza of case.
Corporation. The employer said that they should have not been made The workers formed a line. What happened to that preference of credits?
to answer in this case because they had 2 people that they have to There is a preference for the workers provided there is a declaration that
answer – this employee who is retiring and the credit cooperative who this is insolvent, it needs financial rehabilitation. Okay, that has been
is under agreement them for collection of the monies owed to them by pronounced by the court, it covers all the properties.
their employee. They do not know to whom they will give the money.
Therefore, they filed a petition for declaratory relief with consignation. How about the properties that are already a mortgage? Is the preference
superior to the secured creditors? No. It only covers free property. If
October 29, 2020 Part 2B by April John Latorza you are preferred as a creditor because you have not been paid of
wages, you have not been paid for separation pay. Who is superior to
There are asking the court, decide. Who has a better right to this 1.4 your claim? There is one that is always superior to your claim. That is
Million? What happened? The Labor Arbiter denied the motion of San the sovereign authority of the Philippines that is the Republic. If it has
Miguel and awarded Tumaodos. San Miguel appealed to the NLRC, and sovereign claims, taxes and it is free property, the Labor Code will not
it reversed the decision. Then, it goes up to the C.A., and it upholds the help you. Because no officer of the Government can waive the right of
reversal. So, therefore, Tumaodos goes to the Supreme Court. What a sovereign. You are not superior as a creditor when it comes to
does Justice Inting say? He says the proper remedy is regular courts. sovereign rights but if it is proprietary rights you are superior. The
Why? Because if you don’t go to the regular courts, the right to due workers are superior even above governmental claims, but the claims
process of the cooperative will be denied. He cannot be made to appeal there refer to proprietary rights not sovereign rights.
before the Labor Arbiter. There is no employer-employee relationship
between the retired employee and the Coop. Their relationship is loan, So, you line up together with other creditors. Now, the court orders, all
mutuum. So it should be the regular courts. If you are an evil examiner those who have credits, and there is stay order, you cannot claim. In
and you change the figures. Instead of 4M, that he is an ordinary worker the meantime, the petitioner is ordered to resume its business, however,
receiving 8k, and he is retiring. Can he owe the cooperative of that he cannot resume if he is not granted the same extension of credit as
unpaid amount? And the cooperatives want to deduct from his he was in the past. So, all creditors are ordered to provide him with raw
retirement benefits. What is his retirement benefits? He then goes to materials for as long he pays his current obligations. His past obligations
Labor Arbiter and says it is illegal deduction from my retirement benefits, are suspended. That’s happened in financial rehabilitation. Even the
which statutory, the Labor Code. And he says, besides wages cannot be creditors can be ordered. Workers na wala pa nabayda, padayon basta
subject to execution, attachment, or sequestration of any of my creditors bayran ka sweldo nimo sukad karon. Because there is now a new, who
because I need it for my living and for my family. Who has jurisdiction? will put cash.
If you are talking 4M, you are talking about salaries, and salaries are not
entirely exempt from execution. You don’t need the entire 4M for your - END -
living. And if you make the figure and make it wages. Then, the Coop is
out of order. Your wages and your regular benefits under the Labor Code
exempt for your execution of your creditors. Wages cannot be the
subject of execution and attachment. So that is Trifon B. Tumaodos
v. San Miguel Yamamura Packaging Corporation (G.R. No.
241865. February 19, 2020).
Remember, if it arises from or what is needed is the Labor Code, what

has to be resolved, the controversy is the Labor Code, then if it is arising
from the employer-employee relationship. But, if what is needed to
resolve the dispute is not the Labor Code but the Civil Code or some
other law, then that is the end; they cannot. What changes the picture?
Let us say the employer files for financial rehabilitation under FRIA, this
case is already pending there, and the workers have not been paid their
accrued wages for 6 months. And then, not only that the company has
in the meantime close their operations, in most of their departments,
most of their product lines. Now, the workers of those departments that
have been shut down, they are asking for separation benefits. Where do
they go? They go to Labor Arbiter. They implead the employer. What
does the employer do? The employer produces the stay order of the
court. Within 5 days from the filing of your petition for financial
rehabilitation, the court decides as to whether or not to accept your
petition for financial rehabilitation. The court has 5 days to do that. What

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1

In 2012, Emmanuel L. Benitez, GSIS Family Bank’s president, sought

LABOR RELATIONS The Governance Commission replied that as a government financial

Issue: Whether or not GSIS Family Bank is a GOCC. –YES.

That is the recent interpretation of the SC. Ponente of the decision is

Book 5, Rule I, Section 1: W: There it is.

Why? Collective bargaining is the heart to right to self organization. If

Sweetheart Contract - Book V of the Labor Code, if there is a union

ALLIANCE OF GOV’T WORKERS v. Personnel of government-owned or controlled corporations are now

Membership in an electric cooperative which merely vests in the 5. Homeworkers

No Minimum Age Requirement SECTION 3. Self-Organization. — Homeworkers shall have the

Can you be an officer? 7. Both government and private employee

It is a juridical person. The labor organization registered is a juridical

1. Annually at the general assembly meeting Why the change of ruling?

Runoff election must be distinguished from a rerun election.

Give an example of Authorized cause: 1. Negotiation Phase

A: He is rendered exclusive because the way he obtained the exclusivity

Q: Kanang exclusive bargaining agent, giunsa man na siya

UNION OF FILIPRO EMPLOYEES - DRUG, FOOD AND ALLIED

to account the lowest quantum of proof. What is that? Substantial organization;

2. EMPLOYER Art. 260. [249] Unfair labor practices of labor

Answer: Rule: There is a difference between dismissal due to union

o write down his counter proposals and submit it to

Is that refusal to bargain?

Payment of Negotiation or Attorney’s Fees Promise of Reward

Restraining Strikes and Picketing

The right to picket as a means of communicating the facts of a labor

GRIEVANCE UNDER THE CBA

6. Petitions for certification elections

Ex. Prohibition in deployment to Syria, Iraq, Sudan or Personality vs. Standing

Visitorial Powers to Enforce Health and Safety Q: Where do you appeal?

xxx In visitorial powers exercise, can there be a determination of existence

2. Termination disputes; 1. Interference in the right to self-organization by the

Remember, you cannot deprive an ordinary employee of a security of

RULING: NO. If it is not in excess of Php 5,000.00 individual aggregate

XXXXXXX 1. Unfair labor practice cases;

Remember, if it arises from or what is needed is the Labor Code, what

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