Chapter 6 Flashcards
Dues and assessments which the union may collect
LLO are authorized to collect a reason amount of the ff:
- Membership fees
- Union dues
- Assessments
- Fines
- Contribution for: labor education, research mutual death, hospitalization benefits, welfare fund, strike fund, and credit and cooperative undertakings
- Agency fees
**Check Off*
Method of deducting from employee’s pay at prescribed periods, any amount due for assessments, fines, and fee
Requirements for Valid Check off
- Authorization by a written resolution of the majority of all the members at the general meeting duly called for the purpose
- Secretary’s record of the minutes of said meeting
- Individual written authorizations for check-off duly signed by the employees concerned.
NOTE!!!
One of the lawful deductions on employees’ pay is the union dues that are authorized in writing by the employee concerned
Jurisdiction over Check-Off Disputes
Being an intra-union dispute, the Regional director of DOLE has the jurisdiction over check off disputes
Assessments
Payment used for special purposes. Especially if required for a limited time.
Requisites to Collect Special Assessment
GR: No special assessments, attorney’s fees, negotiation fees, or any other extraordinary fees may be checked off from any amount due to an employee unless there is
- Authorization written resolution of the majority of all the members at the general meeting duly called for that purpose.
- Secretary’s record of the minutes of said meeting
- Individual written authorizations for check-off duly signed by the employee concerned.
The authorization should specify
1. Amount
2. Purpose
3. Beneficiary of the deduction
XPN:
Exceptions
a. For mandatory activities under the LC
b. For Agency Fees
c. When non-members of the union avail of the benefits of the CBA:
1. Non-members may be assessed union dues equivalent to that paid by union members;
- Only by board resolution approved by majority of the members in general meeting called for the purpose.
Effect of failure to strictly comply with the requirements set by law
It shall invalidate the questioned special assessments. Substantial compliance with the requirements is not enough.
Union Dues
Monthly contributions paid by the members in exchange for the benefits given to them by the CBA and to finance the activities of the union representing the union.
Union Dues
Monthly contributions paid by the members in exchange for the benefits given to them by the CBA and to finance the activities of the union representing the union.
Nature and Purpose of Union Dues
Union dues are the bloodline of the union.
All unions are authorized to collect reasonable amount for fines, assessments, fees, contributions for labor education,research mutual death and hospitalization benefits, welfare fund, strike fund, and credit and cooperative undertakings.
Agency Fees
Amount that equivalent to union dues - Fee that a non-union member pays as he/she benefits from the CBA negotiated by the union.
Does not amount to unjust enrichment but to avoid discrimination between the union and non-union members. Its source is not contractual but is based from quasi-contract.
Requisites for Assessments of Agency Fees
- Employee is part of bargaining unit.
- Employee is not part of the union
- Employee partook in benefits of the CBA
Limitation on the amount of Agency Fees
The agency fees that a union can collect from the non-union member are limited by law
- It should be a reasonable amount
- Equivalent to the due and other fees that are paid by the members of the recognized collective bargaining agent.
Union Dues Vs. Agency Fees
Union Dues:
- Collected from *union members**
- There must be an individual written authorization from members.
Agency Fees:
- Collected from non-union members in the same baragaining unit who receive the benefits from CBA.
- Can be assessed without written authorization from the employee concerned.
Union Security Clause
A generic term for closed shop, union shop, maintenance of membership shop, it is a rule in the workplace that requires employees to join or stay in an union in order to keep their jobs.
Kinds of Union Security Clause:
UNION SHOP
New employeez required to join the union within a certain period as a condition for their employment continuation.
Kinds of Union Security Clause:
UNION SHOP
New employeez required to join the union within a certain period as a condition for their employment continuation.
Kinds of Union Security Clause:
MAINTENANCE OF MEMBERSHIP SHOP
Employees who are already in union or who later will join the union must stay in it to remain employed until they are promoted or transferred out of the bargaining unit or agreement terminated.
Kinds of Union Security Clause:
CLOSED SHOP
Only under the union membership can be hired and must stay in the union while working under the agreement.
NOTE TO STATE POLICY UNIONISM
The state supports employees to join the union to negotiate better with their employers as a group.
The law allows 2 types:
1. UNION SHOP - An individual can be hired even not in a union but must join a union after getting the job.
- CLOSED SHOP - An individual should have a union in order to be hired.
These rules help union to stay strong and protect worker’s rights.
Dismissal by virtue of stipulation in CBA
A CBA provision on employee dismissal holds equal weight to the Labor Code’s dismissal rules, as a CBA serves as the “law” between the company and union, with compliance mandated to uphold labor protection.
In terminating EE by security clause, the ER should determine and prove the ff:
- Union security clause is applicable.
- Union request of enforcement of the union security provision in CBA.
- Sufficient evidence to expel the employee from the union.
Organized Establishment
An enterprise that has a recognized or certified sole and EBA.
Unorganized Establishment
An establishment where no union has yet recognized or certified bargaining representative
Bargaining Representative of EEs For the purpose of Collective Bargaining
They are the one who represent on behalf of the union members for negotiations with the ER about work conditions.
Though EEs have their bargaining representative they can still personally raise concerns or complaints with ER.
Three (3) modes/methods of determining the exclusive bargaining representative (EBA)
- Sole and Exclusive Bargaining Agent Certification (SEBA)
- Certification Election
- Consent Election
SEBA Certification
Process where union asks DOLE Regional Director to recognize and certify the union as SBA of the BU to represent for the purpose of the collective bargaining with ER.
SEBA Certification: CONDITIONS and FILE REQUEST
- BU is not unionized
- Requesting union is the only union in that BU
- CBU majority are members of the union.
FILE REQUEST at DOLE Regional Office which issued its COR or Certification of creation of chartered local.
Scenarios contemplated by the Rules on Request for SEBA Certification:
UNORGANIZED ESTABLISHMENT WITH
ONLY ONE LLO
COMPLETE REQUIREMENTS:
DOLE Regional Director will issue the certification right away during the meeting.
INCOMPLETE REQS:
Sent to the Election Officer to hold a certification election
Scenarios contemplated by the Rules on Request for SEBA Certification:
UNORGANIZED ESTABLISHMENT WITH
MORE THAN TWO LLO
The DOLE Regional Director will refer to Election Officer for the conduct of Certification Election.
ORGANIZED ESTABLISHMENT
DOLE Regional Director will refer to Mediator-Arbiter for the determination of propriety of conducting a certification election
**If denied – referred to Election Officer for the conduct of certification election.
**If granted – shall enjoy all the rights and privileges of an EBA for BU.
Certification Election
Process of determining through secret ballot the Sole and Exclusive Representative of the EEs in BU for that purpose of CB/negotiation (initiated by petition filed with DOLE)
2 issues involving in the proceedings of certification
- Proper composition of constituency of the BU
- Verifying the veracity of majority membership claims to determine the union that will represent the entire BU.
Purpose of a Certification Election
Means of determining of worker’s choice of:
- Whether they want a union to represent them all especially for CB or not.
- If they choose to have a union, they select which among contending union would be their sole and exclusive bargaining representative.
No Union– as a choice
The right to join a union includes the right not to join. In view of this “no union” as a choice should always be included in the certification election and if this option wins, the statutory bar rule will apply, no SEBA and no new PCE can be filed within 1 year from the conduction of certification of elections.
Time to File Petition for Certification Election (PCE)
It depends on BU if they has CBA or none:
**none- petition may file anytime except 12 momnts of previous election if any
**have CBA- petition may filed only within the “freedom period” which is 60 days before the CBA expires.
Where to file PCE?
Regional Office which issued COR or certificate of creation of charted local and shall be heard and resolve by Mediator-Arbiter
Consent Election
election that is voluntarily agreed upon by the parties without or with intervention of DOLE for the purpose of determining EBA.
Certification Year Bar Rule
Or also called 12-Month rule that same ban applies if “No Union” won in previous election. No PCE will be filed within 1 year from the date that elections conducted within the BU.
Failure of Election
Two intances:
- When the number of votes casts in certification or consent election is less than the majority of the eligible voters and no significant challenged vote. A new election can be requested within 6 months from when the failure of election declared
- When there is a tie. Next election will be held within a period of 10 days from the last election to determine or break the tie.
Run-Off Election
Held between two unions with the highest votes in certification or consent election involving 3 or more unions contentions, if no majority of valid votes. This applies only if the total votes for all unions combined at least 50% of the valid votes cast.
Run-Off Voters Qualification
The same list of voters used in certification of election.
When to be conducted?
If it is needed and no objections or challenges, the Election Officer should automatically held the run-off election within 10 days after the election proceedings, between the two unions with highest votes.
Run-Off Election requirements
five concurrent conditions:
- Valid election took place because majority of the CBU members voted.
- Election presented at least 3 choices: Union One, Union two, and No Union, meaning there are at least 2 union candidates.
- Not one of the unions obtained the majority of the valid vote.
- Total number of the votes cast is at least 50% for all the unions.
- There are no unresolved challenge of voter or election process.
No-union wins, no run-off elections, 12-month rule ban applies
Re-run Election
Three instances:
1.Failure of certification of election declared by the Election Officer.
2.Tie between two unions
3. Tie between a union and no union.
**NOTE:
Run-off
- narrowing down to one winner from the top two contenders.
Re-run
- repeats the whole election due to problems in the initial process.
ER as a mere bystander rule
Whether PCE is filed by ER or LLO. The ER is not considered a party with a right to oppose the petition. Because the purpose is to determine which organization will represent the employees in bargaining, so only the EEs are concerned.
ER limitation:
1. Being notified/informed of petitions
- Submitting the list of EEs during the pre-election conference should the Mediator-Arbiter act favorably on the petition.
ER’s possible recourse
If the ER believes that the union has inapproriate membership because it includes rank and file with managerial/supervisory EEs, then the ER can file a seperate petition to cancel the union’s registration.
**Duty to bargain collectively*
Mutual obligation of ER and EE to engage in discussions and negotiation in good faith for the purpose of:
- Negotiating an agreement with respect to employment terms. (wages, hours of work, etc..)
- Proposal for adjusting grievances/questions arise in such agreement.
- Executing a contract agreement if requested but neither side is being forced to agree.
- Negotiation over new contract terms or proposed modifications, when an existing agreement is validly opened for negotiations.
With and Without CBA
**No CBA:
- EE and ER must still bargain collectively and must follow the LC rules and processes sset out for these negotiations.
**With CBA:
- neither the ER nor the EE can change or terminate the agreement before it expires. Either side can give written notice to change or terminate the agreement at least 60 days before the 5th year agreement ends.
DUTY TO MAINTAIN STATUS QUO - 60days before CBA expires ER and union must keep all term and conditions of the existing agreement in place.
CBA
Contract made between ER and the union. Includes agreements made after negotiations about employment/working conditions and how to handle grievances.
Nature of CBA
Law between the contracting parties and the collective bargaining representative and employer-company. Compliance to CBA is mandated by expressed policy to give protection to labor.
Unilateral changes cannot be allowed without consent of both contracting parties
Purpose of CBA
Making of agreements that will stabilize business conditions and fix fair standards of working conditions.
Mandatory Provisions of the CBA
To be subject to mandatory collective bargaining it must materially or significantly affect the terms and conditions of employment.
- Wages and other type of compensation including merit increases.
- Working hours, day, shifts
- Vacation, holidays
- Bonuses
- Pensions, retirement plans
- Seniority
- Transfer
- Lay-offs
- Employee workloads
- Work rules and regulations
- Rent of company houses
- Union security arrangements
Ratification of the CBA
GR: The agreement negotiated should be ratified/approved by the majority of the EBR not the union but the EEs represented by the negotiation.
XPN: When CBA is a product of an arbitral award of the government authority/voluntary arbitrator.
Automatic renewal clause of CBA
Although the CBA expired, it continues to have the legal effects between the parties until a new CBA has been entered into.
Lock, Stock, and Barrel Rule
If ER refuses to submit any counter-proposals, the ER lost its right to bargain terms and conditions of employment. So, the CBA that will SEBA proposed are deemed approved and accepted lock, stock, and barrel by the ER.
Hold-over principle (CBA)
Even the CBA expires, ER and the union must continue to follow the terms and conditions during the 6-0-day notice period, the law still considered it valid and effect until the new CBA is validly executed.
Registration of CBA (SIGNING, POSTING, REGISTRATION)
- The parties should submit to DOLE Regional Office when BU is registered or principally operates within 30 days.
- Multi-employer CBA filed in Bureau
**Failure to register does not make it invalid. Once the CBA is signed by the parties and entered it is become effective. kahit di certified ng BLR…
**Non-registration the contract bar rule is inoperative.
Effectivity of CBA
It depends whether first CBA or renegotiated CBA.
**First CBA
- The effectivity date is based on the agreement of the parties, not the signing date.
**Renegotiated CBA
- If signed within 6 months of the old CBA’s expiration, it takes effect the day after the old CBA expires.
- If signed after 6 months, the start date must be agreed upon by both parties.
Note: The effectivity date is crucial for wage increases, as a longer retroactive period means larger back pay for employees.
60-Day Freedom Period (Representative Aspect)
(During 60-day freedom period)
- Labor union can disaffiliate to mother union to form a local/independent union only during the 60-day freedom period before the CBA’s 5-years term ends.
- Either party can serve a written notice to terminate/modify the agreement at least 60 days before the CBA 5-years term expires. Union can file PCE during this 60-day period.
Q: How should CBA interpreted?
**A: As a contract and law that governed the parties, the general rules of statutory construction apply in the interpretation of its provisions.
IN CASE OF DOUBT:
1. Labor laws and contract should be construed in favor of the safety and decent living of the laborer.
- In all doubts should be resolved in favor of labor.
UNFAIR LABOR PRACTICES
Acts that violates EEs right to self-organization or the terms of CBA. Therefore, not all unfair acts considered ULP. Without affecting self-organization, an act, no matter how unfair, is not considered ULP.
Nature of ULP
ULPs are not only violation of civil rights of oth labor and management but are also a criminal offense against the state.
**Elements of ULP*
- There must be an EE-ER relationship between the offended and offender party
- The act is expressly defined in the Code as ULP.
ULP has two aspects
- Civil
- Criminal
**NOTE: Lawmakers intended acts of ULP to be prosecuted in the same manner as criminal offenses because it is an offense against a public right or interest.
ULP BY ERs
ULP that ERs committed of:
- Interference, restraint, and coercion
- Yellow Dog Contract
- Contracting out of service
- Company unionism
- Discrimination for or against union membership.
- Discrimination because of testimony
- Violation of duty to bargain
- Paid negotiation
- Gross violation of the CBA
1. Interference, restraint, or coercion
To interfere, restraint, or coerce the employees to right to self-organization.
Prohibiting organizing activities is ULP
It is unlawful to prohibit solicitation of union membership in the company whether working or non-working time.
ULP can be committed even if union is not registered
An ER that interferes with the formation of LO and retaliation against the EE right to self-organization.
2. Yellow Dog Contract
An agreement between EE and ER in which EE agrees to not join or remain in a union as a condition of employment.
3. Contracting out
To contract out services or functions being performed by the union members when such will interfere, restrain, coerce the right to self-organization of EE.
Q: Is contracting out per se ULP?
A: NO. Contracting out, itself, is not ULP. It is the ill intention that makes it so when it is motivated by a desire to prevent his EEs from organizing and selecting a collective bargaining representative, get rid of union men, or escape his statutory duty to.
4. Company Unionism
To initiate, dominate, assist, or otherwise interfere with the formation or administration of any labor organization, including the giving of financial or other support to it or its organizers or supporters.
DISCRIMINATION FOR OR AGAINST UNION MEMBERSHIP
To discriminate in regard to wages, hours of work, other terms and conditions of employment in order to encourage or discourage membership in any LO.
7. Violation of duty to bargain
acts that violates the duty to bargain collectively as prescribed by the Code.
Four forms of ULP in bargaining
- Failure/refusal to meet and convene
- Evading mandatory subjects of bargaining.
- Bad faith in bargaining
- Gross violation of the CBA
**Gross violation of the CBA
**
- gross violation of the CBA, as opposed to simple violations of the CBA, which are only grievance matters; and
- The violation pertains to the economic provisions of the CBA.
** ULP BY LABOR ORGANIZATIONS**
Persons Criminally Liable in Case of ULP by LO:
- Officers
- Members of governing board
- Representatives, agents, members of the labor organization who actually participated, authorized, or ratified the ULP act.
ULP Committed by Labor Organizations
a. Restraint or coercion
b. Union-induced discrimination
c. Refusal to bargain
d. Featherbedding or Make-Work Arrangements
e. CBA deal with employer
f. Gross violation of CBA
Forms of Concerted Activities
1. Legal Strike - One called for a valid purpose and conducted through means allowed by law.
2. Illegal Strike - One staged for a purpose not recognized by law, or if for a ** valid purpose**, conducted through means not sanctioned by law.
3. Economic Strike/Bargaining Strike - One staged by workers to force wage or other economic concessions from the employer which he is not required by law to grant.
4. ULP Strike - One called to protest unfair practices by ER, like violating CBA or busting union.
5. Slow Down Strike - An industrial action where the EE perform their duties but seek to reduce their productivity or efficiency in the performance of these duties.
Strikes
It means any temporary stoppage of work by concerted action of EEs as a result of an industrial or labor dispute.
**NOTE: The right to strike, though constitutionally recognized, is subject to legal limits. LC prohibits strikes or lock outs after the President or SOLE assumes jurisdiction, or if the dispute is submitted to arbitration.
The courts consistently hold that once the SOLE assumes jurisdiction, strikes or lockouts must not interfere. Any strike defying an assumption or certification order is prohibited and illegal.
“Striking Employee” is still an employee
ER-EE relationship is not terminated but merely suspended as the work stoppage is not permanent but only temporary. However, the effects of employment are suspended, so EE are not entitled to his/her wage during the strike.
Purpose of a Strike
A strike is a coercive measure used by workers to push for their demands. Its purpose is to pressure a profitable company by disrupting or halting its operations (which a way can make the ER agree to their demands).
GROUNDS FOR STRIKE/LOCKOUTS
- Collective Bargaining Deadlock
- Unfair Labor Practices - including flagrant/malicious refusal to comply with the economic provisions of the CBA.
Observance of the Cooling-off Period
Time given for EEs and ERs to resolve their issues peacefully before a strike or lockout happens. It allows both sides to reach an agreement with help from NCMB, using better or lower offers to settle things.
Cooling-off Periods Provided by Law
a. CBD cooling off period is 30days
b. ULP cooling off period is 15 days
Picketing
Picketing is a peaceful activity where workers march in front of an establishment involved in a labor dispute, often carrying signs/placards/banners to inform the public about the issue.
Requisites for Lawful Picketing
- Peacefully carried out.
- No act of violence, coercion, or intimidation.
- Ingress and egress from the company premises should not be obstructed.
- Public thoroughfares should not be impeded.
Lockouts
any temporary refusal of an ER to furnish work as a result of an industrial or labor dispute.
