Title IV Labor OrganizationRegistration and Cancellation

Concept of the right to self-organization the right to form, join, assist labor organizations, and the right to engage in lawful concerted activities The labor organization may be a union or association of employees. Its purpose may be collective bargaining or dealing with the employer. The right to form labor organization is twin to the right to engage in concerted activity. Although twins, they are not inseparable. Such group action, which should be held peacefully to remain lawful, can similarly be for collective bargaining purpose, but it can simply be for aid and protection of the members. The labor organization entitled to protection does not have to be a registered organization. And it does not have to be the bargaining union. The right to self-organization is granted not only to employees but to workers, whethere employed or not. In fact, constitutionally speaking, the right to form associations or societies is a right of the people, whether workers or not. Non-Abridgment of Right to Self-Organization Labor organization entitled to protection does not have to be a registered organization and it does not have to be the bargaining union. BUT, if UNREGISTRED it cannot claim the rights under ART. 250 [242] Rights of legitimate labor organization because it does not possess legal representative status. UNREGISTERED organization cannot sue in behalf of its supposed members. Workers right to self-organization - Article XIII of the 1987 Constitution Right to form, join or assist labor organization. Non-registration of a LO mean it is unregistered and has no legal personality. It does not possess the rights of an LLO such as it cannot petition for Certification Election, Request preventive mediation, or hold a legal strike. 2 Broad Purposes of Labor Organizations Collective bargaining Dealing with employees concerning terms and conditions of employment. A pattern or practice in which a group of employees, make proposals to management, and management responds to those proposals by acceptance or rejection by word or deed. Classifications of LOa. National Union/Federation b. Industry Union means any group of LLO operating within an identified industry, organized for collective bargaining or dealing with employers concerning terms and conditions of employment within an industry or for participating in the formulation of social and employment policies, standards and programs in such industry, duly registered with the Department.c. Trade Union Center group of national union/federation organized for the mutual aid and protection of its member, for assisting them in collective bargaining, or for participating in the formulation of social and employment policies, standards and programs.d. Alliance aggregation of unions existing in one line of industry or in a conglomerate, a group of franchisees, a geographical are or an industrial center. Unions or federations may form an alliance to help one another for a particular purpose. Each member union retain its own organization, structure and independence. An alliance cannot represent its member unions in CBA negotiations.e. Company-union LO which, in whole or in part, is employer-controlled or employer-dominated. It is prohibited by the Labor Code (art. 258d). f. Independent created by independent registration. See IRR for definition. Its legal personality is not derived from a federation. It may affiliate with a federation, then, it may also be called an affiliate.g. Chapter/Local/Chartered Local refers to a labor organization in the private sector operating at the enterprise level that acquired legal personality through registration with the Regional Office Its legal personality is derived from a federation but it may subsequently register itself independently. No required number 20 percent requirement applies only to independent registration and not to chartering. This makes it easier to create a chapter than an independent union, thus expediting the growth of federations or national unions. Tentative Legal Personality Once issued a charter, Chartered Local has personality to file a petition for certification election (CE). All other rights of the chartered local are acquired by submitting the necessary documents:a. charter certificateb. names and addresses of officers and members of union (certified under oath by Secretary or Treasurer and attested by the president)c. constitution and by-laws(CBL) of the union which can be the same as that of the federation(certified under oath by Secretary or Treasurer and attested by the president) The Grounds for Cancellation of Union Registration Any falsehood about the CBL Any falsehood about the election of officers Voluntary Dissolution Cancellation by 2/3 vote of the membership to dissolve their organization requires subsequent submission by the board of the organization, attested by the president, of an application to cancel. The members desire to dissolve or cancel the registration of their union should have been voted upon through secret balloting [ Art 241(d)] The balloting should take place in a meeting duly called for the purpose of deciding whether or not to dissolve the union The vote to dissolve should represent two-thirds affirmative vote of the general membership. Not just of the quorum The members resolution should be followed by an application for cancellation passed and submitted by the union governing board, which application may be attested to by the president Reportorial Requirements: Adoption or amendments to CBL Election of officers, with list of voters to be submitted in 30 days Annual financial reports within 30 days from close of fiscal year Annual list of members Non-disclosure of identity If petition for CE in an organized enterprise is filed by the federation in behalf of chapter, the federation cannot be required to identify the chapters officers or members. Employer, a bystander employer has no right to oppose a petition for CE. Participation is limited to being informed and to be required to submit a list of employees if CE will be held. Registration Registration required is not a limitation to the right of assembly or association. It is merely a sine qua non condition for the acquisition of legal personality and the possession of the rights and privileges granted by law to LLOs. Such requirement is a valid exercise of police power, because the activities LOs are engaged in affect public interest which should be protected. Applications for registrations shall be filed with: For independent labor unions, chartered locals and workers association Regional Office where applicant principally resides For federations, national unions or workers association operating in more than one region Bureau or the Regional Offices, but processed and acted upon by the Bureau Registration of a Chartered Local. Submit 2 copies of the following:i. A charter certificate issued by the federation/national union indicating the creation or establishment of the local/chapterii. The names of the local/chapters officers, their addresses and the principal office of the local chapter; andiii. The local/chapters constitution and by-laws, provided that where the local/chapters constitution and by-laws is the same as that of the federation or national union, this fact shall be indicated accordingly.iv. All the foregoing supporting requirements shall be certified under oath by the Secretary or the Treasurer of the local/chapter and attested by its President.Law fixes no time for the submission of the required documents for a chartered local, the IRR requires the documents to be submitted within 30 days from receipt of notice from the Regional Office. Trade Union Centers cannot create a local chapter as decided by the Supreme Court. When does a Chapter Become an LLO? Not from the date of filing of the complete documents but from the date of its issuance of its certificate of registration or certificate of creation of chartered local. Is the registration of a chartered local a ministerial function? No, with the shift from the date of submission to the date of issuance of certificate of registration. Withdrawal by members on or before registration If withdrawal is done before the application for registration is filed, the withdrawal is presumed voluntary and it may prejudice the registrability of the applicant union. On the other hand, if the withdrawal is done after the application is filed, the withdrawal is considered involuntary and does not affect the registration application. Union's Legitimacy is not Subject to Collateral Attack Sec. 8, Rule IV of D.O. 40-03 further states: Such legal personality may be questioned only through an independent petition for cancellation of union registration in accordance with Rule XIV of these Rules, and not by way of collateral attack in [the] petition for certification election proceedings under Rule VIII. Bargaining Unit refers to a group of employees sharing mutual interests withing a given employer unit, compromised of all or less than all of the entire body of employees the employer unit or any specific occupational or geographical grouping withing such employer unit. It may be all supervisors or all the rank-and-file in the company The law does not allow supervisors and rank-and-file to belong to the same bargaining unit. Can there be several bargaining units of supervisors or of rank-and-file in just one company? Yes, because of several reasons. But the DOLE policy favors the creation of only one CBU in one company, i.e., only one for rank-and-file and another one for the supervisors. The law fixes no minimum or maximum number. Whatever the number, twenty percent thereof should be members of the independent union applying for registration. Another registration requirement is the submission of the constitution and by-laws (CBL) of the applicant union. Like other voluntary associations, labor unions have the right to adopt constitutions, rules, and by-laws within the scope of the lawful purposes of the union and bind their members thereby, provided they are reasonable, uniform, and not discriminatory, and provided they are contrary to public policy or the law of the land. A union's constitution and by laws govern the relationship between and among its members. As in the interpretation of contracts, if the terms are clear and leave no doubt as to the intention of the parties, the literal meaning of the stipulation shall control. Limitation to By-laws A statute providing that labor unions may devise and adopt ways and means to make their rules, regulations, and by-laws, and resolutions effective does not sanction rules, regulations, by-laws or resolutions to commit wrong, nor does it authorize interference with the constitutional rights of others. Action on the Application/Notices of Registration The Regional Office or the Bureau, as the case may be, shall act on all applications for registration or notice of change of name, affiliation, merger and consolidation within ten (10) days from receipt either by: (a) approving the application and issuing the certificate of registration/acknowledging the notice/report; or (b) denying the application/notice for failure of the applicant to comply with the requirements for registration/notice. Denial of Application/Return of Notice Where the documents are incomplete or do not contain the required certification and attestation, the Regional Office or the Bureau shall, within five (5) days from receipt of the application/notice, notify the applicant/labor organization concerned in writing of the necessary requirements and complete the same within thirty (30) days from receipt of notice. Where the applicant/labor organization concerned fails to complete the requirements within the time prescribed, the application for registration shall be denied, or the notice of change of name, affiliation, merger and consolidation returned, without prejudice to filing a new application or notice. Appeal from the denial The denial by the regional office may be appealed to the Bureau and then to the Court of Appeals. The appeal should be filed within ten (10) days from receipt of such notice, on the ground of grave abuse of discretion or violation of these Rules. The memorandum of appeal shall be filed with the Regional Office or the Bureau that issued the denial/return of notice. The memorandum of appeal together with the complete records of the application for registration/notice of change of name, affiliation, merger or consolidation, shall be transmitted by the Regional Office to the Bureau or by the Bureau to the Office of the Secretary, within twenty-four (24) hours from receipt of the memorandum of appeal. The Bureau or the Office of the Secretary shall decide the appeal within twenty (20) days from receipt of the records of the case. Affiliation An affiliate is an independently registered union that enters into an agreement affiliation with a federation or a national union. It also refers to a chartered local which applies for and is granted an independent registration but does not disaffiliate from its mother federation or national union. Principal-Agent Relationship in Affiliation The relationship between a local or chapter and the labor federation or national union is generally understood to be that of agency, where the local is the principal and the federation the agent. Despite affiliation, the local union remains the basic unit free to serve the common interest of all its members. Disaffiliation It has been repeatedly held that a local union, being a separate and voluntary association, is free to serve the interest of all its members including the freedom to disaffiliate when circumstances warrant. This right is consistent with the constitutional guarantee of freedom of association. In other words, to disaffiliate is a right, but to observe the terms of affiliation is an obligation. Disaffiliation of employees from their mother union and their formation into a new union do not terminate their status as employees of the corporation as the employees and members of the local union did not form a new union but merely exercised their right to register their local union. However, the disaffiliating must itself be a registered union. If unregistered, it is not a legitimate labor organization. For this reason, it has no legal personality and does not possess the rights granted under Article 250. Local union represented by a national federation was recognized as sole bargaining agent. 32 out of 36 members of local union disaffiliated from the mother federation. Mother federation, because of union security clause recommended that the employer terminate employees. Court held that local union is principal and national federation is agent and since the majority wanted to disaffiliate, dismissal was unjustified.] Local union left old federation and joined a new one. In the absence of enforceable provisions in the federation's constitution preventing disaffiliation of a local union, a local may sever its relationship with its parent. Also, mother federation wasn't registered with the Department of Labor and therefore didn't have legal personality to enforce its constitution (ooops) and the ground was on a technicality in their constitution which cannot rise above the fundamental right to self organization] When to Disaffiliate Generally, a labor union may disaffiliate from the mother union to form a local or independent union only during the 60-day freedom period immediately preceding the expiration of the CBA. But even before the onset of the freedom period (and despite the closed shop provision in the CBA between the mother union and management) disaffiliation may still be carried out, but such disaffiliation must be effected by a majority of the members in the bargaining unit. Affiliation/Disaffiliation: A Summary A local union may affiliate or disaffiliate from a federation. But affiliation and disaffiliation entail rights and obligations. Internally, between the union and its members affiliation/disaffiliation is a major issue that can only be decided by a majority of the members through a secret balloting in a formal meeting duly called for the purpose. Externally, between the chapter and the federation, affiliation/disaffiliation is a contractual relation. Revocation of a charter By serving on the latter a verified notice of revocation, copy furnished the Bureau, on the ground of disloyalty or such other grounds as may be specified in the constitution and by-laws of the federation, national union or workers association. The revocation shall divest the local/chapter of its legal personality upon receipt of the notice by the Bureau, unless in the meantime the local/chapter has acquired independent registration in accordance with these Rules. Invalid grounds for cancellation of registration Illegal strike is not reason to cancel a unions registration Non-renewal of registration/permit will not cause dismissal of the case filed by the union, provided that when it filed the petition, it had the juridical personality and the court acquired jurisdiction over the case The case could continue without need of substitution of parties, but the decision to be rendered would bind only those union members who had not withdrawn from the case before its trial and decision on the merits Petition for Cancellation of registration Any party in interest may commence a petition for cancellation of a unions registration Where the employer sought and won the cancellation of the unions registration on the ground that it failed to submit the required documents, such as books of accounts and the union by-laws, when it applied for Where the employer questioned the inclusion of some supervisors in the rank and file union. The petition filed by the employer led to the divestment of legal personality of the union because its mixed membership makes it not a labor organization at all. The petition to cancel shall be under oath and shall state clearly and concisely the facts and grounds relied upon, accompanied by proof of service to the respondent. But such petition should be a separate action; it cannot be entertained in the petition for certification election filed by the union Where to file the Petition for Cancellation of registration Subject to the requirement of Notice and Due Process, the registration of any legitimate independent labor union, chartered local and workers association may be cancelled by the regional director, or in the case of federation, national or industry union and trades and trade union centers, by the Bureau Director, upon the filing of an independent complaint or petition for cancellation. Cancellation orders issued by the Regional Director are appealable to the BLR. The latters decision id final and executory, hence not appealable to the DOLE secretary but it may be elevated tot eh Court of Appeals by certiorari. BLR decisions on cancellation cases that originated at the BLR itself may be appealed to the Secretary by certiorari to the CA. Nature of Relation between union and its members The union has been evolved as an organization of collective strength for the protection of labor against the unjust exaction of capital, but equally important is the requirement of fair dealing between the union and its members, which is fiduciary in nature, and arises out of two factors: One is the degree of dependence of the individual employee on the union organization The union may be considered but the agent of its members for the purpose of securing for them fair and just wages and good working conditions. As an agent, the union is subject to the obligation of giving the members as its principals all information relevant to union and matters entrusted to it. Rights of Union Members Political right- the members right to vote and be voted for, subject to lawful provisions on qualifications and disqualifications. Deliberative and decision making right- the members right to participate in deliberations on major policy questions and decide them by secret ballot Rights over money matters- the members right against excessive fees; the right against unauthorized collection of contributions or unauthorized disbursements; the right to require adequate records of income and expenses and the right of access to financial records, the right to vote on officers compensation; the right to vote on proposed special assessments and be deducted a special assessment only with the members written consent. Right to information- the members right to be informed about the organizations constitution and by-laws and the CBA and about labor laws. Membership in the union does not divest the members of their primary standing as employees. In this capacity, an individual stands apart from the union. He has a personality and the right to make individual personal representation to the employer. The worker is an employee first and a union member second. As between the members and the union, the members are the principal, the union is the agent or representative. The sovereign power emanates from the people is as true as true in a state as it is in a labor union. When, how and under what conditions does an employee become a union member? An employee is qualified for union membership starting on the first day of service. An employees membership in a union however does not necessarily mean coverage by the CBA, if one exists. The CBA defines its coverage as agreed by the parties. It may state that it covers only regular employees, thus excluding the probationary employees, and even among regular employees, it may exclude certain positions or jobholders. Qualifying for union membership therefore does not necessarily mean inclusion in the coverage of the CBA. The reverse is equally true: membership in the CBU does not automatically mean membership in the union. Summary: Inclusion in the CBU depends on the determination of its appropriateness under Art 239 and 266 Inclusion or membership in a union depends on the union constitution and by-laws, without prejudice to Art 291c Inclusion or coverage in the CBA depends on the stipulations of the CBA itself. Election of Union Officers The officers of the union are elected directly by the members in secret ballot voting. The election takes place at intervals of 5 years which is the term of office of the union officers including those of national union, federation or trade union center. What positions to fill up, where and how the election should be done are matters left by the law to the unions constitution and by-laws or to agreement among the members. The Implementing Rules require the incumbent president to create an election committee within 60 days before expiration of the incumbent officers term. The rules specify the composition as well as the powers and duties of the election committee, but its rules and actions cannot contradict the Labor Code mandates. If the officers with expired term do not call an election, the remedy according to Rule XII is for atleast 30% of the members to file a petition with the DOLE Regional Office. The members frustration over the performance of the union officers, as well as their fear of a fraudulent election to be held under the latters supervision, does not justify disregard of the unions constitution and by- laws. Eligibility of Voters Only members of the union can take part in the election of union officers. Every member in good standing is entitled to one vote A member in good standing is any person who has fulfilled the requirements for membership in the union and who has neither voluntarily withdrawn from membership nor been expelled or suspended from membership after appropriate proceedings consistent with the lawful provisions of the unions constitution and by-laws. A labor organization may prescribe reasonable rules and regulations with respect to voting eligibility.1. Any rule denying dues-delinquent members the right to vote must be applied uniformly2. Members must be afforded a reasonable opportunity to pay dues, including a grace period which dues may be paid without any loss of rights3. Submission of the employees name with the Bureau of Labor Relations as qualified members of the union is not a sine qua non to enable said members to vote in the election of the unions officers. Union Officer must be a member One should be employed in the company to qualify as officer of a union in that company. Although subsequent department orders deleted this provision, the membership qualification remains because it is required in the Code itself, in Art 241 (c), second sentence. Disqualification of Union Officers No person who has been convicted of a crime involving moral turpitude shall be eligible for election as a union officer or for appointment to any position in the union. Crime involving moral turpitude- characterized by an act of baseness, vileness or depravity in the private or social duties which a man owes his fellowmen, or to society in general, contrary to accepted and customary rule of right and duty between man and man, or conduct contrary to justice, honesty, modesty, or good morals. No labor organization shall knowingly admit a member or continue in membership any individual who belongs to a subversive organization or who is engaged directly or indirectly in any subversive activity. Actions against Union Officers A union officer, after his election, may not be expelled from the union for past malfeasance or misfeasance. To do so would nullify the choice made by the union members. Remedy against erring union officers is not referendum but expulsion. If the union officers were guilty of the alleged acts imputed against them, the DOLE Sec. should have meted out the appropriated penalty on them, i.e., to expel them from the Union and not call for a referendum to decide the issue. Where the people have elected a man to office, it must be assumed that they did this with the knowledge of his life and character and that they disregarded or forgave his faults or misconduct if he had been guilty if any. Expulsion of Members A member of a labor union may be expelled only for a valid cause and by following the procedure outlined in the constitution and by-laws of the union. If after an investigation the petitioners were found to have violated union rules, then and only then should they be subjected to proper disciplinary measures. Expulsion of a member for arbitrary or impetuous reason may amount to unfair labor practice by the union. This matter is taken up in the chapter on U.L.P. particularly Article 259. Relief within the Union General Rule: Redress must first be sought within the union itself in accordance with its constitution and by-laws. Exceptions: Where exhaustion of remedies within the union itself would practically amount to a denial of justice, it would not be insisted upon, as a condition to the right to invoke the aid of a court. In the case, noteworthy is the fact that the complaint was filed against the union and its incumbent officers, some of whom were members of the board of directors. The constitution and by-laws of the union provide that charges for any violations thereof shall be filed before the said board. But as explained by the lower court, if the complaints had done so the board of directors would in effect be acting as respondent investigator and judge at the same time. To follow the procedure indicated would be a farce under the circumstances, where exhaustion of remedies within the union itself would practically amount to a denial of justice or would be illusory or vain, it will not be insisted upon, particularly where property rights of the members are involved, as a condition to the right to invoke the aid of a court. The union members have chronicled from the very beginning that they were indefinitely suspended without the benefit of a formal charge sufficient in form and substance. The rule on exhaustion of administrative remedies cannot squarely apply to them. Visitorial Power Article 288 authorizes the SOLE or his duly authorized representative to inquire into the financial activities of any labor organization on the basis of a complaint under oath, supported by a 20 percent of the membership in order to determine compliance or noncompliance with the laws and to aid in the prosecution of any violation thereof. Check-offs and Assessment A check-off is a method of deducting from an employees pay at prescribed period, the amounts due the union for fees, fines, or assessments. The right of a union to collect union dues is recognized under Article 291 (a). Art. 113, one of the lawful deductions from employees wage is for union dues, in cases where the right of the worker or his union to check-off has been recognized by the employer or authorized in writing by the individual worker concerned. But the amount of union dues must be reasonable Art. 249, prohibits the imposition of excessive or arbitrary fees. The amount and collection of union dues are questions that affect the entire membership; hence, they have to be approved by the members themselves. [Art. 249 (d)] Assessments, like Dues, may also be Checked-off Dues- payments to meet the unions general and current obligations. The payment must be regular, periodic, and uniform. Payment used for a special purpose, especially if required only for a limited time, are regarded as assessment. Art. 249- No special assessment, attorneys fees, negotiation fees or any other extraordinary fees may be checked off from any amount due an employee without individual written authorization duly signed by the employee. The authorization should specifically state the amount, purpose and beneficiary of the deduction. Attorneys fees may not be deducted or checked off from any amount due to an employee without his written consent, except for mandatory activities under the code. Deductions for union service fee are authorized by law and do not require individual check-off authorizations. However, the benefits awarded to the employees formed part of the collective bargaining negotiations although placed under compulsory arbitration. Notwithstanding its compulsory nature, compulsory arbitration is not the mandatory activity under the Code which dispenses with individual written authorizations for check-offs. It is a judicial process of settling deputes laid down by law. Besides, Art. 288 (b) does not except a CBA later placed under compulsory arbitration, from the ambit of its prohibition. In other words, individual written authorizations are needed to deduct from members salary the attorneys fee for concluding a CBA although compulsory arbitration. Special Assessment may be checked-off, but Art. 249 should be carefully complied with. The collection of special assessment partly for the payment services rendered by union officers, consultants and others may not be in the category of attorneys fees or negotiation fees. But there is no question that it is an exaction which falls within the category of a similar charge, and, therefore, within the coverage of the prohibition in the aforementioned article. Check-off of agency fee Another allowable deduction from ees wage is agency fee. This is an amount equivalent to union dues, which a nonunion member pays to the union because he benefits from the CBA negotiated by the union. It is agency fee because in negotiating the CBA the union served as the employees agent. (Art 258 (e) Employers Liability in Check-off Arrangement Employers failure to make the requisite deductions may constitute a violation of a contractual commitment for which it may incur liability for unfair labor practice. But the employer does not, by that omission, incur liability to the union for the aggregate of dues or assessments uncollected from the union members or agency fees for non-union employees.

Rights of Legitimate Labor Organization Right of Union to represent its members It is the function of a labor union to represent its members against the employers unfair labor practices. It can file an action in their behalf without the cumbersome procedure of joining each and every member as a separate party.(Davao free workers front vs. CIR, 60 SCRA 408 [1974]) A labor union has the requisite personality to sue on behalf of its members for their individual money claims. It would be be an unwarranted impairment of the right to self-organization if such collective entities would be barred from instituting action in their representative capacity. (La Carlota Sugar Central vs. Court of Industrial Relations, 64 SCRA 78 [1975] ) The means employed by the employer in dealing with the workers individually, instead of collectively through the union and its counsel, violates good morals as they undermine the unity of the union and fuels industrial disputes, contrary to the declared policy in the Industrial Peace Act. ( Pampanga Sugar Development Co., Inc. vs. CIR, 114 SCRA 725[1982] ) Compromise of Money Claims Money claims due to laborers cannot be the object of settlement or compromise effected by a union or counsel without specific individual consent of each laborer concerned. The beneficiaries are the individual complainants themselves. The union to which they belong can only assist them but cannot decide for them. A judgment based on a compromise agreement authorized by the members does not bind the individual members or complainants who are not parties thereto nor signatories therein. (Kaisahan ng mga manggagawa sa La Campana vs. Sarmiento, 133 SCRA 220 [1984].) Right to be furnished with Financial Statements To better equip the union in preparing for or in negotiating with the employer, the law gives it the right to be furnished with the employers audited financial statements. There are four points in time when the union may ask in writing for these statements:i. after the union has been recognized by the employer as sole bargaining representative of the employees in the bargaining unit; orii. after the union is certified by DOLE as such sole bargaining representative; oriii. during the collective bargaining negotiation; or iv. within the last 60 days of the life of a CBA. Under Article 253, the last 60 days of the CBA is the time to give notice to terminate or modify the CBA. Therefore, this is the time also for the union to gather fresh information on the financial condition of the company to enable it to prepare intelligently for the forthcoming CBA renegotiation. The audited financial statements, including the balance sheet and the profit loss statement, should be provided by the employer within 30 calendar days after receipt of the unions written request. Right to collect dues Dues are defined as payments to meet the unions general and current obligations. The payment must be regular, periodic, and uniform. Payments used for special purpose, especially if required only for a limited time, are regarded as assessment.

Coverage and Employees Right to Self-organization. Coverage of the Right to Organize; Exceptions The right to form , join or assist a labor organization is granted to all kinds of employees of all kinds of employers --- Public or private, profit or non-profit, commercial or religious. Their usual form of organization is a union and the usual purpose is collective bargaining with their employers. But the seemingly all-inclusive coverage of all persons in Aricle 243 actually admits of exceptions. Under Article 245 managerial employees, regardless of the kind of organization where they are employed, may not join, assist or form any labor organization, meaning a labor union. Otherwise, they would be exposed to the temptation of colluding with the union during the negotiations to the detriment of the employer Supervisors are allowed to organize, but they cannot form, join or assist a rank-and-file union. Right to organized cannot be bargained away The right to self-organization must be upheld in the absence of an express provision of law to the contrary. It cannot be curtailed by a collective bargaining agreement. EEs of non-profit institution The rank-and-file employees of non-profit medical institutions are permitted to form, organize or join labor unions of their choice for purposes of collective bargaining. Employee-members of Cooperative Owners and/or members of the cooperatives are the ones who run and operate the business while the others are its employees. Irrespective of the number of shares owned by its members they are entitled to cast one vote each in deciding upon the affair of the cooperative. An employee of such a cooperative who is a member and co-owner thereof cannot invoke the right to collective bargaining, for certainly an owner cannot bargain with himself or his co-owners. However, insofar as it involves cooperatives with employees who are not members or co-owners thereof, such employees are entitled to exercise the rights of all workers to organization, collective bargaining negotiations and others as are enshrined in the Constitution and existing laws of the country. It is the fact of ownership of the cooperative, and not involvement in the management thereof, which disqualifies a member from joining any labor organization within the cooperative. (Benguet Electric Cooperative, Inc. vs. Ferrer-Calleja, G.R. No. 79025, December 29, 1989.) But member-employee of a cooperative may withdraw as members of the cooperative may withdraw as members of the cooperative in order to join a labor union.Membership in a cooperative is voluntary; inherent in it is the right not to join(Central Negros Electric Corp. vs. Sec. of Labor, et al., G.R. No. 94045, September 13, 1991.) While members of cooperative who are also its employees cannot unionize for bargaining purposes, the law does not prohibit them from forming an association for their mutual aid and protection as employees. International Organization Employees of an organization immuned from Philippines jurisdiction cannot unionize. The grant of such immunity is a political question whose resolution by the executive branch of government is conclusive upon courts. Foreign Workers Foreigners, whether natural or juridical, as well as foreign corporations, are strictly prohibited from engaging directly or indirectly in all forms of trade union activities. However, aliens working in the country with valid work permits may exercise the right of self-organization if they are nationals of a country that grants the same or similar right to Filipino workers. (Article 269 LC) Rights of EEs in Public Service The highest law of the land guarantees to government employees the right to organize and to negotiate, but not to strike. prohibit government employees(including those employed in proprietary functions of the Government) to Strike for the purpose of securing changes of their terms and conditions of employment, the right to self-organization does indeed pertain all employees of all branches, subdivisions, Instrumentalities and agencies of the government, including government-owned or controlled corporations with original charters. Employees of government corporations established under the Corporation Code Shall have the right to organize and bargain collectively with their respective employers. Government Employees right to organize limitations the highest law of the land guarantees to government employees the right to organize and negotiate but not to strike. MEMBERS OF AFP, police officers, policemen, firemen and jail guards. FOR REASONS OF SECURITY AND SAFETY THEY ARE NOT ALLOWED TO UNIONIZE. Even temporary employees may organize Ineligibity of Managerial EEs to join any organization the term managers refer to anyone who is responsible for subordinates and other organizational resources managerial employees are not eligible to join, assist or form any labor organization. Supervisory employees shall not be eligible for membership in the collective bargaining unit of the rank and file employees but may join, assist, or form separate collective bargaining units and/or legitimate labor organizations of their own. The rank-and-file union and the supervisory union operating within the same establishment may join the same federation or national union. Effect of inclusion as union members of the employees outside the bargaining unit the inclusion as union members of the employees outside the bargaining unit shall not be ground for the cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership of said union. Evolution of supervisors rights to organize unlike managers, supervisors can organize. Definitions of Manager and Supervisor A supervisor has the power only to recommend while a managerial employee has the power to decide and do those acts. A manager must possess managerial powers (to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees). If he can only recommend the exercise of any of these powers he is only a supervisor. in short, a manager makes policy decisions or people decisions or both; a supervisor recommends those decisions. One is a decision maker, the other, a recommender. Test of Supervisory Status whether a person possesses authority to effectively recommend managerial actions in the interest of his employer whether such authority is not merely routinary or clerical in nature, but requires the use of indepentdent action when such recommendatory powers are subject to evaluation, review and final action, the same, are not effective and not considered as an exercise of independent judgment as required by law The power to recommend must not only be effective but should require the use of independent judgment should not be merely of a routinary or clerical nature Segregation of rank-and file and supervisors Supervisory employees are allowed to form, join or assist separate labor organizations of their own, but they are not eligible for membership in a labor organization of the rank-and-file employees. Neither may rank-and file join a union of supervisors It will be doubly detrimental to the employer if the supervisors and rank-and-file, as members of only one union, could take a common stand against the employer. Confidential employees are those who assist and act in a confidential capacity to, or have access to confidential matters of, persons who exercise managerial functions in the field of labor relations (Philips case, GR No. 88957, June 25, 1992) are those who by reason of their position or nature of work are required to assist or act in a fiduciary manner to managerial employees and hence, are likewise privy to sensitive and highly confidential records. (Metrolab case, GR No. 108855, Feb. 28, 1996) do not constitute a distinct category of employees for purposes of the right to self-organize confidentiality is not a matter of rank, it is a matter of job content and authority every managerial position is confidential but not every confidential employee is managerial; he may be a supervisory or even a rank-and-file employee the confidentiality of the position should relate to labor relations (labor nexus) The Court noted that while the Labor Code singles out managerial employees as ineligible to join, assist, or form any labor organization, under the doctrine of necessary implication, confidential employees are similarly disqualified These employees are confidential employees. By the very nature of their functions, they assist and act in a confidential capacity to, or have access to confidential matters of, persons who exercise managerial functions in the field of labor relations. As such, the rationale behind the ineligibility of managerial employees to form, assist, or join a labor union equally applies to them. Forming part of the bargaining unit, the executive secretaries stand to benefit from any agreement executed between the Union and Metrolab. Such a scenario, thus, gives rise to a potential conflict between personal interests and their duty as confidential employees to act for and in behalf of Metrolab. They do not have to be union members to affect or influence either side. Confidential employees cannot be classified as rank-and-file. The nature of employment of confidential employees is quite distinct from the rank-and-file, thus, warranting a separate category. Excluding confidential employees from the rank-and-file bargaining unit, therefore, is not tantamount to discrimination. Access to information which is regarded by the employer to be confidential from the business standpoint, such as financial information or technical trade secrets, will not render an employee a confidential employee. It must be access to confidential labor relations information. Workers in export processing zones Export processing zones, anywhere in the Philippines, are part of Philippine territory which is subject to its sovereignty and laws. To them therefore applies with undiminished force the Philippine Constitution that guarantees the workers rights to organize, to strike and so forth. The zone workers cannot be denied these constitutional rights. ILO titled Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy states: Where governments of host countries offer special incentives to attract foreign investments, these incentives should not include any limitations on the workers freedom of association or the right to organize and bargain collectively.

Unfair Labor PracticeSelf-organization is a prerequisite the lifeblood of industrial democracy, hence, any act that aims to weaken or defeat said right is treated as an offense. The offense is technically called Unfair Labor Practice.Unfair Labor Practice is NOT unfair practice BY labor, rather, a practice unfair TO labor. OFFENDER in Unfair Labor Practice: either the (1) Employer, (2) Labor OrganizationVICTIM of Unfair Labor Practice: (1) workers as a body, (2) Employers who value industrial peace, (3) People in general because the violation of the right to self-organization is considered a PUBLIC OFFENSE which carries both civil and criminal liabilities. ULP vs Breach of an obligation of the ER In ULP, it involves violation of public right or policy, hence, prosecuted like criminal offenses. In Breach of an obligation by the employer to his employees involves only a contractual breach, hence, to be redressed like an ordinary contract or obligation. Elements of ULP at the Enterprise Level There is Employer-Employee relationship between the offender and the offended party. Because U.L.P is negation of, a counteraction to, the right to organize which is guaranteed to employees in relation to their employer. No labor organizational right can be negated or assailed if employer-employee relationship is absent. U.L.P is and has to be related to the right to self-organization and to the observance of the CBA, it follows that not every unfair act is unfair labor practice. Unfair Labor Practice, therefore, has a limited, technical meaning because it is a labor relations concept with a statutory definition. It refers only to acts opposed to workers right to organize. Without that element (referring to opposing to workers right to organize), the act, no matter how unfair is not unfair labor practice as legally defined. Prosecution of U.L.P Art. 257 states that U.L.P has CIVIL and CRIMINAL aspects. As to the CIVIL ASPECT it may include liability for damages and these may be passed upon by a labor arbiter. What is required in Labor cases in the NLRC is only SUBSTANTIAL EVIDENCE. As to the CRIMINAL ASPECT for it to be prosecuted, there is still a NEED of the FINALITY OF JUDGMENT in the LABOR CASE(civil aspect), finding that the alleged offender indeed committed unfair labor practice. But such judgment will not serve as evidence of unfair labor practice in the criminal case since such criminal charge must be proved independently from the labor case. And that, PROOF BEYOND REASONABLE DOUBT is needed to convict in the criminal case of unfair labor practice. Jurisdiction of CRIMINAL CHARGE Municipal/Regional Trial Court. Prescription of the CRIMINAL OFFENSE one (1) year the commission of the act Unfair Labor Practices of Employers Before an employee maybe considered aggrieved by an alleged unfair labor practice by an employer, it must be demonstrated, FIRSTLY, that the INJURED party comes within the definition of employee as the term is defined by the code, and SECONDLY, the act charged as U.L.P. must fall under the prohibitions of Art. 258 (acts of the employers) or Art. 259 (acts of the labor union). EMPLOYEE includes any person in the employ of an employer. The term shall not be limited to the employees of a particular employer, unless this code so explicitly states. It shall include any individual whose work ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent and regular employment. (Art. 219 [212] definitions) The law on unfair labor practices is not intended to deprive the employer of his fundamental right to prescribe and enforce such rules as he honestly believed to be necessary to the proper, productive, and profitable operation of his business (MANAGAMENT RIGHT). HENCE, no ULP if there is VALID EXERCISE of MANAGEMENT RIGHTS Determining the validity of an employers act involves an appraisal of his motives. It is for the NLRC, in the first instance, to weigh the employers expressed motive in determining the effect of the employees of managements otherwise equivocal act. An employer who interfered with the right to self-organization before the union is registered can be held guilty of ULP.1. Interference2. Yellow dog condition3. Contracting out4. Company unionism5. Discrimination for or against union membership6. Discrimination because of testimony7. Violation of duty to bargain8. Paid negotiation9. Violation of CBA Interference Outright and unconcealed intimidation is the most obvious form of interference. Such conduct, even if done only once, constitutes ULP and will support a cease and desist order by the Board. The employees executed affidavits describing the meeting that they had with the management which was requested by the employees to discuss certain matters. The affidavit was used as a basis for a charge of grave slander against the management. Management dismissed the employees for executing the affidavit claiming that it was an act of breach of trust and confidence inimical to the interest of the company. Ruling: management committed unfair labor practice in dismissing the employees. The dismissal amounted to interference with, and restraint and coercion of, the petitioners in the exercise of their right to engage in concerted activities for their mutual aid and protection. (the CBA was about to be renegotiated, after the dismissal of some of the employees, wala nai nahibilin nga officer sa union kai na.dismiss na tanan) Persistent interrogation of employees to elicit information as to what had happened at union meetings and the identity of the active union employees was held as violative of organizational rights of employees When will the interrogation be deemed not coercive? Employer must inform the employee the purpose of the questioning Assure that no reprisal will take place Participation in the questioning is voluntary It is an ULP to discharge a supervisor because he refuses to commit unfair labor practices or because the union activities of an employee, who happens to be the wife of the supervisor. Examples of unlawful acts to discourage membership in labor organization: Dismissal upon refusal to give up membership Refusal over a period of years to provide salary adjustments as stipulated in the CBA Dismissal on account of joining a union and engaging in union activities Violations have been found where the employer threatened employees favoring union with force or violence, as warning them against getting caught with a union leaflet Announcement of benefits intended to induce the employees to vote against the union constitutes interference. A lockout, actual or threatened, as a means of dissuading the employees from exercising their rights under the labor code is clearly an ULP. But an honest closing of ones plant is not a violation. An employer which closed its business to put an end to a unions activities, and which made no effort to allow the employees attempt to exercise their right to self-organization and collective bargaining, and even threatening the employees that they would lose their jobs if they did not cease affiliation with the union, commits ULP. Closure is likewise not legal and the employees cannot be separated if, in fact, there is no closure because the closed department or company reappeared although under a new name. If the new company is, for instance, engaging in the same business as the closed company or department, or is owned by the same people, and the closure is calculated to defeat the workers organizational right, then, the closure may be declared subterfuge and the doctrine of successor employer will be applied, that is, the new company will be treated as a continuation or successor of the one that closed. If such be the case, the separated employees will have to be employed in the new firm because in the first place they should not have been separated at all.

Yellow dog condition Contract provisions whereby an employee agrees that during the period of his employment he will not become a member of a labor union have been outlawed in the united states. The yellow dog contract is a promise exacted from workers as a condition of employment that they are not to belong to, or attempt to foster, a union during their period of employment. A typical yellow dog contract usually includes the following provisons: A representation by the employee that he is not a member of a labor union A promise by the employee not to join a labor union A promise that upon joining a union, he will quit his employment Runaway Shop Runaway shop- an industrial plant moved by its owners from one location to another to escape union labor regulations or state laws but the term is also used to describe a plant removed to a new location in order to discriminate against employees at the old plant because of their union activities. It also refers to business relocation animated by anti-union animus. Where plant removal is for business reasons but the relocation is hastened by anti-union motivation, the early removal is an unfair labor practice. Sameness of business is not reason enough to show run-away shop to pierce the veil of separate corporate entity. The mere fact that one or more corporations are owned or controlled by the same or single stockholder is not sufficient ground for disregarding separate corporate personalities. The basic rule is that mere ownership by a single stockholder or by another corporation of all or nearly all of the capital stock of a corporation is not of itself sufficient ground for disregarding the separate corporate personality. In the present case, there was also a complete cessation of the business operations. (Complex Electronics Employees Association v. NLRC, et al. GR#: 121315, July 19,1999) Company Union Domination of labor union usually manifests in the following forms: Initiation of the company union idea Outright information by the employer or his representatives; Employee information on outright demand or influence by employer; Managerially motivated formation by employees Financial support to the union; Employer encouragement and assistance; Supervisory assistance Key officials of the company have been forcing the employees belonging to a rival union to join the company-dominated union under pain of dismissal should they refuse to do so; Key officials of the company, as well as its legal counsel, have attended the election of officers of the company-dominated union; Officers and members of the rival union were dismissed allegedly pursuant to a retrenchment policy of the company, after they had presented demands for the improvement of the working conditions despite its alleged retrenchment policy; After dismissal of the aforesaid officers of the rival union, the company engages the services of new laborers. Discrimination for or against union membership What the law prohibits is discrimination to encourage or discourage membership in a labor organization. Where the purpose is to influence the union activity of employees, the discrimination is unlawful. But discrimination is not the same as differentiation or classification. Under the Industrial Peace Act (as under the present Labor Code), the discrimination committed by the employer must be in regard to the hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization. Discrimination occurs when a union member, involved in union activity, is treated differently from a non-union worker. Antiunion animus is found when the employers conduct is not motivated, or at least is not entirely motivated by legitimate and substantial business reasons but by a desire to penalize or reward employees for union activity or the lack of it. Discouraging membership in a labor organization includes not only discouraging adhesion to union membership but also discouraging participation in union activities such as a legitimate strike. Forms: Discrimination in Work Quota In one case, the pharmaceutical company increased the sales quota of the union president and vice-president to 400% and 300%, respectively, unlike those of the other field representatives whose sales quota the company increased by an average of 98% only. The company could not give a valid explanation for such marked difference. Discrimination in Bonus Allocation There is unfair and unjust discrimination in the granting of salary adjustments where the evidence shows that (a) the management paid the employees of the unionized branch; (b) where salary adjustments were granted to employees of one of its nonunionized branches although it was losing in its operations; and (c) the total salary adjustments given every ten of its unionized employees would not even equal the salary adjustments given one employee in the nonunionized branch. Discrimination in Layoff or Dismissal Discriminatory dismissal- even where business conditions justified a layoff of employees, only the unionists were permanently dismissed while nonunionists were not. The manner in which the prerogative is exercised should not be tainted with abuse of discretion. Labor is a persons means of livelihood. He cannot be deprived of his labor or work without due process of law. Retrenchment should not be oppressive and abusive since it affects ones person and property. Due process of law demands nothing less. (Bataan Shipyard and Engineering Co., Inc. v. NLRC, GR#: L-78604, May 09, 1988) Test of Discrimination: In order to determine whether or not a discharge is discriminatory, it is necessary that the underlying reason for the discharge be established. The fact that a lawful cause for discharge is available is not a defense where the employee is actually discharged because of his union activities. If the discharge is actually motivated by a lawful reason, the fact that the employee is engaged in union activities at the time will not lie against the employer and prevent him from the exercise of his business judgment to discharge an employee for cause. (NLRB v. Ace Comb Co., 342 F. 2 841) Where circumstances establish a discriminatory motive on the part of the employer, the assignment of a just cause will be unavailing if it cant be established that the true and basic inspiration for the employers act is derived from the employees union affiliations or activities, the assignment by the employer of another reason , whatever its semblance of validity, is unavailing. Constructive Discharge- where the employer prohibits employees from exercising their rights under the Act, on pain of discharge, and the employee quits as a result of the prohibition. Valid Discrimination: UNION SECURITY CLAUSE Union Security Clause- a compulsory union membership that essentially requires membership in the union so that the employee may retain his job and the unions existence is assured. Kinds of Union Security Agreements: Closed-shop- only union members can be hired by the company and they must remain as union members to retain employment in the company. Union Shop- nonmembers may be hired, but to retain employment must become union members after a certain period. The requirement applies to present and future employees. Modified Union Shop- employees who are not union members at the time of signing the contract need not join the union, but all workers hired thereafter must join. Maintenance of Membership Shop- no employee is compelled to join the union, but all present or future members must, as a condition of employment, remain in good standing in the union. Exclusive Bargaining Shop- the union is recognized as the exclusive bargaining agent for all employees in the bargaining unit, whether union member or not. Bargaining for Members Only: the union is recognized as the bargaining agent only for its own members. Agency Shop- an agreement whereby employees must either join the union or pay to the union as exclusive bargaining agent a sum equal to that paid by the members. This is directed against free rider employees who benefit from union activities without contributing financially to union support. Closed-shop agreement is one whereby the employer binds himself to hire only members of the contracting union who must continue to remain members in good standing to keep their jobs. It Is the most prized achievement of unionism. The State promotes unionism to enable the workers to negotiate with management on the same level and with more persuasiveness than if they were to individually and independently bargain for the improvement of their respective conditions. To this end, the Constitution guarantees to them the rights to self-organization, collective bargaining and negotiations and peaceful concerted actions, including the right to strike in accordance with law. These purposes could be thwarted if every worker were to choose to go his own separate way instead of joining his co-employees in planning collective action and presenting a united front when they sit down to bargain with their employers. Means of encouraging the workers to join and support the labor union of their own choice as their representative in the negotiation of their demands and the protection of their interests vis--vis the employer; Principle of sanctity or inviolability of contracts- freedom of employees to organize themselves must be subordinated to the constitutional provision protecting the sanctity of contracts Advantages and Disadvantages of Closed-shop Agreement A closed shop agreement is advantageous because it icreases the strength and bargaining power of labor organization Prevents non-union workers from sharing in the benefits of the unions activities without also sharing its obligations Prevents the weakening of labor organizations by discrimination against union members. Eliminates the lowering of standards caused by competition with non-union workers. Enables labor organizations effectively to enforce collective agreements. Facilitates the collection of dues and the enforcement of union rules. Creates harmonious relations between the employer and the employee. But it is disadvantageous as it Results in monopolistic domination of employment by labor organizations. Interferes with the freedom of contract and personal liberty of the individual worker Compels employer to discharge all non-union workers regardless of efficiency, length of service, etc Facilitates the use of labor organizations by unscrupulous union leaders for the purpose of extortion, restraint of trade, etc. Denies to non-union workers equal opportunity for employment. Enables union to charge exorbitant dues and initiation fees. Valid Dismissal Because of Application of Union Security Clause Union security clauses in CBA if freely and voluntarily entered into are valid and binding. Thus, dismissal by the company pursuant to a labor unions demand in accordance with a union security clause does not constitute ULP. Even if unaware of the closed-shop stipulation, they are bound by it. Ignorance or dissatisfaction would justify breach thereof. Union members though entitled to disaffiliate from their union and to form a new organization of their own, must suffer the consequences of their separation from the union under the security clause. Where the employer dismissed his employees in the belief in good faith that such dismissal was required by the close-shop provsions of the collective bargaining contract with the union, he may not be ordered to pay back compensations to such employees although their dismissal is found to be illegal. Exemption from Compulsory Membership All employees in the bargaining unit covered by a closed-shop clause in a CBA are subject to its terms, except the following: Religious objectorsThese are members of a religious sect that prohibits membership in a labor union Members of minority unionto hold that the employees in a company who are members of a minority union may be compelled to disaffiliate from their union and join the majority or contracting union, would render nugatory the right of all employees to self organization and to form, join or assist labor organizations of their own choosing. Confidential Employeesthey are outside the bargaining unit being represented by the bargaining union. The CBA does not apply to them. Employees expressly excluded by CBA stipulation Agency Fee Instead of Union Membership The employees who are benefitting from the CBA because they are part of the bargaining unit, without being members of the bargaining union, may be required to pay agency fee. A written authorization from the non-union employee is NOT required. The employees acceptance of the benefits from a collective bargaining agreement justifies the deduction of agency fees from his pay and the union[s entitlement thereto. Quasi-contractualbecause employees may not unjustly enrich themselves by benefiting from employment conditions negotiated by the bargaining union. The fee is collectible only from employees deriving economic benefits from the union-negotiated CBA Discrimination because of testimony By protecting the employees right to testify, the law therefore shields the workers right to self-organization from indirect assault by the employer. Thus it is ULP to dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code. It violates right to engage in concerted activity. Concerted activity does not always require a number of people acting in unison it is enough that an employee acting alone in pursuing a group interest may be said to be dong a concerted activity which the employer may not curtail. The employers retaliation against employee who refuses to testify in favour of the employer is an ULP The act of compelling employees to sign an instrument indicating that employer observed labor standards provisions of law when he might not have, together with the act of terminating or coercing those who refuse to cooperate with the employers scheme, constitutes unfair labor practice. Analogous to the situation envisaged in Article 248f which distinctly makes it an ULP to dismiss, discharge, or otherwise prejudice or discriminate against an employee for having given or being about to give testimony. Paid Negotiation Self organization is a treasured right of workers. The law zealously shields them from corruption. It is ULP for the employer to pay the union or any of its officers or agents any negotiation fee or attorneys fee as part of settlement in collective bargaining or any labor dispute. It is ethically reprehensible. Violation of CBA Implementation is still part of the bargaining process which it should be recalled, rests on the parties duty to bargain. The duty to bargain requires good faith. And good faith implies faithful observance of what has been agreed upon. It logically follows that noncompliance with the agreement is non-observance of good faith in bargaining; therefore, the noncompliance amounts to ULP. HOWEVER, such violation must be GROSS as stated in Article 273. Relief in ULP Cases Cease and Desist Order If the Court after investigation finds that the person named in the complaint has engaged or is engaging in any unfair labor practice, then the Court shall state its findings of fact and shall issue or cause to be served upon such person an order requiring him to cease and desist from such unfair labor practice and take such affirmative action as will effectuate the policies of the Act including the reinstatement of employees with or without back pay and including rights of the employees prior to dismissal, including seniority. The Court is not authorized to issue blank cease and desist orders, but must confine its injunction orders to specific act or acts which are related to past misconduct. A cease or desist order is not invalidated because an act complained of was voluntarily discontinued prior to or during the course of proceedings. However, if the act complained of happened so long a time that theres no longer any threat or probability of a recurrence, a cease and desist order will not be justified. Affirmative Order The Court does not only have the power to issue negative or prohibitive orders but also affirmative or positive orders. The Court may issue an affirmative order to the respondent to reinstate an employee dismissed discharged or otherwise prejudiced against for having filed against or for having given testimony. Order to Bargain; Mandated CBA If an employer has failed or refused to bargain with the proper bargaining agent of his employees, the Court may, in addition to the usual cease and desist orders, issue an affirmative order to compel the respondent to bargain with the bargaining agent. In one case, the Court has upheld the ruling imposing a collective bargaining contract upon an employer who refused to bargain with the union of its employees. ULP is not subject to compromises. The relation between capital and labor are not merely contractual. They are so impressed with public interest that labor contracts must yield to the common good. But in 1997, SC held and affixed the stamp of approval to a compromise settling a ULP based strike. It explained, while we do not abandon the rule that unfair labor practice acts are beyond and outside the sphere of compromises; the agreement herein was voluntarily entered into and represents a reasonable settlement; thus it binds the parties. ERs responsibility for ULP by acts of Subordinate No stringent rules. The peculiar circumstances of each case were considered controlling. Where the facts in the case made doubtful the propriety or equity of imputing to the employer responsibility for the acts of a particular employee, the following considerations were often employed in deciding the issue: Knowledge by the employer of the employees improper acts: Where it appears that ER was aware of the EEs wrongdoing, his failure to prevent continuation of the course of conduct or his failure to renounce any connection or affinity therewith, invited the imputation of fault and responsibility to the employer. Continuity of improper conduct by the employer: A single utterance by a supervisory employee, whether improvident or deliberate on the employees part, was not ordinarily, and in the absence of proof of actual authority, held to be sufficient to convict an employer of an unfair labor practice. Interference by Union is not ULP the congressional concern is with means, not ends and the intention is to fix the rules of the game and to insure that strikes and other union organizational activities are conducted peaceably by persuasion and propaganda and not by physical force, threats of force, or threats of economic reprisal Interference by labor organization is not U.L.P. because interfering in the exercise of the right to organize is itself a function of self-organizing. Refusal to Bargain U.L.P. under Article 249(c) is intended to insure that unions approach the bargaining table with the same attitude of willingness to agree as the Act requires of management.

Featherbedding Article 249 (d) refers to featherbedding, a term given to employee practices which create or spread employment by unnecessarily maintaining or increasing the number of employees used, or the amount of time consumed, to work on a particular job. Nature of Collective Bargaining Collective bargaining or negotiations towards collective agreement is a democratic framework to stabilize the relation between labor and management to create a climate of sound and stable industrial peace. includes four related but distinguishable processes: (1) negotiation between representatives of the management and the union over wages, hours, and other terms... of employment; (2) the execution of a written contract embodying the terms agreed upon: (3) negotiation of any question arising as to the interpretation or application of the contract; and (4) negotiation over the terms of a new contract or proposed modifications, when an existing agreement is validly opened for negotiations. refers to a contract executed upon request of either the employer or the exclusive bargaining representative of the employees incorporating the agreement reached after negotiations with respect to wages, hours of work and all other terms and conditions of employment, including proposals for adjusting any grievances or questions under such agreement. it provides an orderly procedure by which each side can seek to present to the other the best possible case for the satisfaction of its particular demands. There is no guarantee of an agreed outcome, but he process of negotiation creates at least the possibility that each side may move closer to the attainment of its own separate objectives while contributing to the attainment of those that are shared with the other side. Jurisdictional preconditions of collective bargaining Possession of the status of majority representation of the employees representative in accordance with any of the means of selection or designation provided for by the Labor Code Proof of majority representation It is not an unfair labor practice for an employer to refuse to negotiate until the asserted bargaining agent has presented reasonable proof of majority representation. Such demand should be made in (a) good faith and (b) not merely as a pretext for delay or evasion. A demand to bargain under Art 250 (a) of the Labor Code An employer is not in default respecting the duty to bargain until a request therefor has been made by the union If the three jurisdictional preconditions are present, the collective bargaining should begin within 12 months following the determination and certification of the employees exclusive bargaining representative. This is called the certification year. IMPORTANT When should bargaining end? The law dictates no deadline. It only demands observance of honesty and good faith. Multi-employer bargaining Collective bargaining may take place at the national, industry or enterprise level. The Philippines has so far tried only the enterprise-level or decentralized bargaining. D.O. 40-03 introduces multi-employer bargaining (which is only optional) but it does not define an industry union. For the procedure, pls read D.O. 40-03, Rule XVI, Sections 5-7. Duty to bargain Where there is yet no collective bargaining agreement Duty to bargain means the mutual obligation of the employer and the employees majority union to meet and convene for the purposes of: Negotiating an agreement on the subjects of: Wages Hours of work and All other terms and conditions of employment including proposals for adjusting grievances or questions arising under such agreement Executing a contract incorporating such agreement if requested by either party The kind of compliance required prompt, expeditious and in good faith. Limitations of the duty that it does not compel any party to agree to a proposal or to make a concession. So no ULP when a party in good faith turns down a proposal. Where a CBA exists The duty to bargain means all of the above plus the obligation not to terminate or modify the CBA during its lifetime. But 60 days before the CBA expires, either party may notify the other in writing that it desires to terminate or modify the agreement. This 60-day period does not always coincide with the 60-day period pertaining to the freedom period to resolve representation contest between unions. Four forms of ULP in Bargaining That there is a pending cancellation proceedings against the respondent union is not a bar to set in motion the mechanics of collective bargaining. Unless its certificate of registration and its status as the certified bargaining agent are revoked, the hospital is duty bound to collectively bargain with the union. It is not a ULP when an employer refuses to bargain by rejecting the unions economic demands where he is operating at a loss, on a low profit margin or in a depressed industry, as long as he continues to negotiate. But financial hardship constitutes no excuse for refusing to bargain collectively, nor does the need to meet the exigencies arising from the competition in the trade. Adoption of an adamant bargaining position in good faith particularly when the company is operating at a loss Refusal to bargain over demands for commission of unfair labor practices Refusal to bargain during period of illegal strike The employer has no obligation to bargain until he is notified that the illegal strike has been terminated. Acts not Deemed Refusal to Bargain Suspecting that the employer was transferring the plant, the union demanded information concerning the removal of equipment and machinery from the factory. The employer refused. Was there a refusal to bargain collectively? There was no violation of statutory duty to bargain since the removal of equipment and machinery from the plant had no relevance to a possible grievance or to contract administration and did not relate to wages, hours and other terms and conditions of employment. (Acme Industrial Co. vs. NLRB, 52 LC 23, 630.) Where, pursuant to an honest doubt, the employer has demanded additional proof or the acquisition of an official certification of bargaining agency, there is no obligation or duty on the employers part to enter into negotiations until the demanded proof is presented pending the certification proceedings, unless it can be established that the demand lacks in good faith and is intended as an obstruction to negotiations. (NLRB vs. National Seal Corp., 127 F. [2nd] 776). Duty to bargain is not violated where: There is no request for bargaining; The union seeks recognition for an inappropriately large unit; The union seeks to represent some persons who are excluded from the Act; The rank-and-file unit includes supervisors or inappropriate otherwise; The demand for recognition and bargaining is made within the year following a certification election in which the clear choice was no union and no ad interim significant change has taken place in the unit; The union makes unlawful bargaining demands. But a unions demand for reinstatement of justifiably discharged strikers, which was not presented as unconditional demand but rather as a bargainable issue was held no to excuse an employer from its duty to bargain with the union. Non-reply to Proposal; CBA Imposed on Employer Collective Bargaining, designed to stabilize the relations between labor and management for the purpose of industrial peace, is a mutual responsibility between labor and management. It is a legal obligation, so much so that Art. 249 (now 248) of the Labor Code makes it Unfair Labor Practice for an ER to refuse to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement for wages, hours of work, and other terms of employment. The union complied with the jurisdictional preconditions of collective bargaining, namely: Possession of majority representation; proof of majority representation; and demand to bargain. Wages and Employment Conditions The following are examples of matters considered as mandatory subjects of bargaining: Wages and other types of compensation, including merit increases; Working hours and working days, including working shfts; Vacation and Holidays; Bonuses; Pension and retirement plans; Seniority; Transfer; Lay-offs; EE workloads; Work rules and regulations; Rent o f company houses; Union security arrangements. Arbitration, Strike-Vote, or No-Strike Clauses An ER may lawfully bargain to an impasse over his proposal that the CBA include an arbitration clause or a no-strike clause which prohibits the EEs from striking during the life of the agreement. No-Lockout Clause; Clause fixing contractual term An ERs statutory duty to bargain requires him to negotiate over the unions proposal that their agreement include a clause binding him not to lock out the EEs. An ERs refusal to bargain over the duration of the contract to be entered into is also an ULP. Signing Bonus In contractual terms, a signing bonus is justified by and is the consideration paid for the goodwill that existed in the negotiations that culminated in the signing of a CBA. Without the goodwill, the payment of a signing bonus cannot be justified and any order for such payment, to our mind, constitutes grave abuse of discretion. This is more so where the signing bonus is in the not insignificant total amount of P16 Million. (Manila Electric Co. vs. Hon. Sec. of Labor and MEWA, GR No. 127598, January 27, 1999). A signing bonus is not a benefit which may be demanded under the law. Rather, it is now claimed by petitioner (union) under the principle of maintenance of existing benefits of the old CBA. However, as clearly explained by the private respondent (employer), a signing bonus may not be demanded as a matter of right. If it is not agreed upon by the parties or unilaterally offered as an additional incentive by private respondent, the condition awarding it must be duly satisfied. In the present case, the condition sine qua non for its grantsa non strikewas not complied with. (Caltex Refinery EEs Association vs. Brillantes and Caltex PH Inc., GR No. 123782, September 16, 1997). No duty to agree even on Mandatory Subjects Where the subject of the dispute is a mandatory bargaining subject, either party may bargain to an impasse as long as he bargains in good faith. The duty to bargain does not obligate a party to make concessions or yield a position fairly held. Hence, an ERs adamant insistence on a bargaining position is not necessarily a refusal to bargain in good faith. Even if the negotiating party thumbs down the other partys proposals, there is no violation of the duty to bargainhence, no ULPas long as the negative reply can be explained in good faith. Bargaining to the Point of Impasse: Not necessarily Bad Faith The adamant insistence on a bargaining position to the point where the negotiations reach impasse does not establish bad faith. Neither can bad faith be inferred from a partys insistence on the inclusion of a particular substantive provision unless it concerns trivial matters or is obviously intolerable. Bargaining to the point of deadlock may or may not amount to bargaining in bad faith depending on the whether the insistence refers to a mandatory or a non-mandatory subject of bargaining. Over a mandatory subject a party may insist on bargaining, even to the point of deadlock, and his insistence will not be construed as bargaining in bad faith. The reason is that the duty to bargain requires meeting and convening on terms and conditions of employment but does not require assent to the other partys proposals. Over a non-mandatory subject, on the other hand, a party may not insist on bargaining to the point of impasse, otherwise his insistence can be construed as bargaining in bad faith. It may be construed as evasion of the duty to bargain; such evasion is ULP. The above rulings do not mean that the non-mandatory subjects cannot be proposed or that the proponent cannot demand serious discussion of such proposal. What the rulings forbid is the posture of making settlement on a non-mandatory subject a precondition to the discussion or settlement of a mandatory subject. If a non-mandatory subject is proposed and agreed upon, the agreeing, by itself, is binding. When is there deadlock or impasse Whether the subject is mandatory or non-mandatory that caused a bargaining deadlock, the union may file a notice or the ER a notice of lock out. But what is a deadlock? When is there a bargaining deadlock? A bargaining impasse over an issue exits where good faith bargaining on the part of the parties has failed to resolve the issue and there are no definite plans for further efforts to break the deadlock. Impasse presupposes a reasonable effort at good-faith bargaining which, despite noble intentions, does not conclude in an agreement between the parties. A substantial change in the bargaining position of one party is necessary to break an existing impasse so as to render unlawful the other partys subsequent refusal to meet and bargain. No valid bargaining impasse can be said to occur when the bargaining deadlock is caused by the failure of one of the parties to bargain in good faith. Duty to Bargain when there is deadlock or impasse Deadlock does not mean the end of bargaining. It signals rather the need to continue the bargaining with the assistance of a third party as conciliator or arbitrator whose first aim is to get the parties back to the negotiating table and help them craft a win-win solution. Although negotiations reach a deadlock, the ER must resume negotiations where changed conditions indicate that an agreement may be possible. Even after the union and the ER reach a genuine bargaining impasse, the ER commits ULP by cancelling a scheduled bargain meeting because the union filed ULP charges against the ER. However, an ER cannot be held to have violated the obligation to bargain collectively with representatives of its EEs where the negotiations with the union had resulted in a deadlock, causing the ER to shut down the plant, and the union made no further negotiations until after the plant had reopened with a new set of EEs operating under an agreement with another labor organization. Strike or Lockout in case of deadlock In fact, deadlock may occur anytime for various reasons such as unacceptability of a proposal or counter-proposal, grandstanding of a negotiator, autocratic or arrogant stance, or imprecise wording of a stipulation. The law (Art. 263) recognizes bargaining deadlock as a valid reason to declare a strike or lockout. Strike/Lockout presents a major deviation from the preferred smooth route of bargaining. At this point of the bargaining scenario, strike or lockout is supposed to be method of resolving an impasse, a device to constrain the parties to end an impasse and go back to the negotiation table. But a strike/lockout, while meant to be a solution, frequently becomes a problem in itself. May a bargaining deadlock be resolved through arbitration by a Labor Arbiter? In the case of Manila Central Line Corp. vs. Manila Central Line Free Workers Union-NFL, GR No. 109383, June 15, 1998: After the NCMB failed to resolve the bargaining deadlock between the parties, the union filed a petition for compulsory arbitration in the Arbitration Branch of the NLRC. Petitioner (ER) joined the petition and the case was submitted for decision. The SC held that although the unions petition was for compulsory arbitration, the subsequent agreement of petitioner to submit the matter for the arbitration in effect made the arbitration a voluntary one. The essence of voluntary arbitration is that it is the agreement of the parties, rather than compulsion of law, that a matter is submitted for arbitration. It does not matter that the person chosen as arbitrator is a labor arbiter who, under Art. 217 of the LC, is charged with the compulsory arbitration of certain labor cases. There is nothing in the law that prohibits these labor arbiters from also acting as voluntary arbitrators as long as the parties agree to have him hear and decide their dispute. When can bargaining in bad faith occur? Bargaining in bad faith is considered ULP. If one will be charged with bargaining in bad faith, it should be raised while the bargaining is in progress. If filed after the bargaining and the CBA has been executed voluntarily by the parties, it is too late and untenable. Wage increase was asked by petitioner labor union which was denied by the respondent. SC said that the union could have refused to bargain and entered into a CBA when refused by the respondent. The firm stand of the respondent against the proposal did not mean that it was bargaining in bad faith since they had the right to insist on their position to the point of stalemate. Petioner only realized the importance of their proposal of wage increase when the wage orders were issued which was after the CBA has been executed by both parties. The charge of bad faith bargaining on the part of the private respondent was nothing but a belated reaction to the i