Labor Relations Revalida 2024

Question 1

Upon the perfection of an appeal, the Labor Arbiter’s decision may not be immediately executed. True or false? Explain.

Answer 1

FALSE. Sec. 9, Rule XI of the 2005 Rules of Procedure of the NLRC provides that the perfection of an appeal shall stay the execution of the decision of the Labor Arbiter on appeal. However, there is an exception: execution for reinstatement pending appeal. A reinstatement order is immediately executory, even if appeal has been perfected.
The decisions, awards, or orders of the Labor Arbiter are final and executory, unless appealed to the NLRC within the time provided under Art. 229 of the Labor Code by any or both parties, within 10 calendar days from the receipt thereof by the counsel or authorized representative or the parties if not assisted by counsel or representative.
The Labor Arbiter must issue a certificate of finality upon the expiration of the 10 calendar days without any appeal having been made.

Question 2

Discuss the Mcburnie vs. Ganzon ruling regarding appeal bonds.

Answer 2

a. The filing of a motion to reduce the appeal bond shall be entertained by the NLRC subject to the following conditions:
a. there is meritorious ground; and
b. a bond in a reasonable amount is posted;
b. For purposes of compliance with condition no. (2), a motion shall be accompanied by the posting of a provisional cash or surety bond equivalent to 10%, of the monetary award subject of the appeal, exclusive of damages and attorney’s fees;
c. Compliance with the foregoing conditions shall suffice to suspend the running of the 10-day reglementary period to perfect an appeal from the labor arbiter’s decision to the NLRC;
d. The NLRC retains its authority and duty to resolve the motion to reduce bond and determine the final amount of bond that shall be posted by the appellant, still in accordance with the standards of meritorious grounds and reasonable amount; and
e. In the event that the NLRC denies the motion to reduce bond, or requires a bond that exceeds the amount of the provisional bond, the appellant shall be given a fresh period of 10 days from notice of the NLRC order within which to perfect the appeal by posting the required appeal bond.
The 10% requirement in this case pertains to the reasonable amount which the NLRC would accept as the minimum of the bond that should accompany the motion to reduce bond in order to suspend the period to perfect an appeal under the NLRC Rules. It is based on the judgment award and should in no case be construed as the minimum amount of bond to be posted in order to perfect appeal.

Question 3

3. Enumerate the reliefs for an illegally dismissed employee. Are these available to an OFW?

Answer 3

a. Reinstatement to his former position without loss of seniority rights nor diminution of benefits;
b. Payment of backwages from the time he was dismissed to the time of actual reinstatement;
c. Payment of damages, moral and exemplary damages, attorney’s fees, costs of suit
These reliefs are generally available to an OFW, EXCEPT FOR REINSTATEMENT because it is generally not a feasible or practical remedy. For example, geographical distance: the nature of overseas employment involves working in a foreign country. Reinstatement to the original job would require the OFW to return to the host country, which may not always be practical or feasible.
R.A. No. 8042 governs the money claims of OFWs, not the Labor Code.

Question 4

What is the legal significance of knowing the difference between mandatory and non-mandatory provisions in the CBA? Enumerate at least 2 mandatory provisions in the CBA.

Answer 4

If these provisions are not reflected in the CBA, its registration will be denied by the BLR. The employer’s duty to bargain is limited to mandatory bargaining subjects, as to other matters, he is free to bargain or not to baragain.

The following are the mandatory provisions of the CBA:
i. Wages;
ii. Hours of work;
iii. Vacations and holidays;
iv. Bonuses;
v. Pensions and retirement plans;
vi. Seniority;
vii. Transfer;
viii. Lay-offs;
ix. Employee workloads;
x. Work rules and regulations;
xi. Rent of company houses;
xii. Grievance machinery;
xiii. Voluntary arbitration;
xiv. No strike-no lockout clause;
xv. Labor management council; and
xvi. Provision against drug use in the workplace

Question 5

Enumerate at least two (2) types of Union Security Agreements. Explain one of them.

Answer 5

A union security clause is a stipulation in the CBA whereby the management recognizes that the membership of employees in the union which negotiated said agreement should be maintained and continued as a condition for employment or retention of employment. The obvious purpose is to safeguard and ensure the continued existence of the union.
It is not a mandatory provision in the CBA but is merely a usual provision in the CBA.

Types of Union Security Agreements
a. Closed Shop Agreement — agreement whereby an employer binds himself to hire only members of the contracting union, who must continue to remain members in good standing to keep their jobs
b. Union Shop Agreement — non-members may be hired but to retain employment, they must become union members after a certain period. The requirement applies to present and future employees
c. Preferential Shop Agreement — an agreement whereby the employer merely agrees to give preference to the members of the bargaining union in hiring, promotion or filing vacancies and retention in case of lay-off. The employer has the right to hire from the open market if union members are not available.
d. Agency Shop Agreement/Maintenance of Treasury 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.
e. Bargaining for Members Only — provides that the union is recognized as the bargaining agent only for its own members.
f. Exclusive Bargaining Shop — provides that the union is recognized as the exclusive bargaining agent for all employees in the bargaining unit, whether union members or not.
g. Maintenance of Membership Shop Agreement — 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
h. Modified Union Shop — the employees who are not union members at the time of signing the contract need not join the union but all the workers hired thereafter must join.

Question 6

When is run-off election conducted?

Answer 6

A run-off election refers to an election between the labor unions receiving the 2 highest number of votes in a certification or consent election with 3 or more choices, where such a certified or consent election results in none of the 3 or more choices receiving the majority of the valid votes cast; provided that the total number of votes for all contending unions is at least 50% of the number of votes cast.

The conditions which must exist for a run-off election are:
a. Valid election took place because majority of the CBU members voted
b. The total votes for the unions are at least 50% of the votes cast
c. Not one of the choices obtained the majority of the valid votes cast
d. There is no unresolved challenged votes or election protest which if sustained can materially alter the results
e. The said election presented at least 3 choices (e.g. Union One, Union Two, and No Union)
f. The 2 choices which garnered the highest number of votes will be declared the winner provided they get the majority votes of the total votes cast.

Question 7

Differentiate backwages from separation pay.

Answer 7

Back wages is a remedy affording the employee a way to recover what he has lost by reason of the unlawful dismissal. The purpose of backwages is the restoration of the past income lost.

How to compute back wages?
a. Salaries or wages computed based on the wage rate level at the time of illegal dismissal
b. Allowances and other benefits regularly granted to and received by the employee, like:
a) Emergency living allowances and 13th-month pay mandated under the law
b) Fringe benefits or their monetary equivalent
c) Transportation and emergency allowances
d) Holiday pay, vacation and sick leaves, and SIL
e) Just share in the service charges
f) Gasoline, car, and representation allowances
g) Any other regular allowances and benefits or their monetary equivalent.

Separation pay is that given in lieu of reinstatement or because of redundancy. It is given as financial assistance upon termination. The amount is equivalent to one month’s salary for every year of service

Question 8

What is the cooling-off period? Immediately after the lapse of the cooling-off period, can strike be conducted?

Answer 8

The cooling-off period is a mandatory period of time during which a labor union and an employer must engage in conciliation/mediation before a strike/lockout can legally take place. The duration of such depends on the issues raised:
a. Issues raised are ULPS – 15 days before intended day of strike
b. In case of bargaining deadlocks – 30 days before intended date (Art. 278 (c))
In case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting, where the existence of the union is threatened, the 15-day cooling-off period shall NOT APPLY and the union may take action immediately (Art. 278(c)).
A strike cannot be conducted immediately after the lapse of the cooling-off period as there is a mandatory 7-day strike ban period that must be observed after the cooling-off period ends (Sec. 5(a), Rule VI, Manual of Procedures in the Settlement and Disposition of Conciliation and Preventive Mediation Cases).

Question 9

What is retirement? How much is the retirement pay of an employee?

Answer 9

Retirement is the withdrawal from office, public station, business, occupation, or public duty. It is the result of a bilateral act of the parties, a voluntary agreement between the employer and the employee whereby the latter after reaching a certain age agrees and/or consents to sever his employment with the former.
The retirement benefit provided under the Labor Code is ½ month pay for every year of service which shall include:
a. 15 days salaries;
b. 1/12 of the 13th month pay; (30 days / 12 = 2.5 days) and
c. Cash equivalent of 5 days incentive leave.

All in all, 22.5 days for every year of service. This will apply in the absence of any agreement in the CBA or employment contract providing for retirement benefits, or even if there is an agreement, but such is inferior to those benefits under the Labor Code. This is the minimum. The retirement pay package can be improved upon by voluntary company policy, or particular agreement with the employee, or through a CBA.
A fraction of at least 6 months shall be considered as one whole year. (Art. 302, LC) The retirement pay payable under Art. 302, as amended, is apart from the retirement benefit claimable by the qualified employee under the social security law.

Question 10

If a company has a legitimate labor organization, that company is considered an “organized establishment”. True or false? Explain.

Answer 10

ART. 268. An organized establishment refers to an enterprise where there exists a recognized or certified sole and exclusive bargaining agent (SEBA), regardless of whether the CBA has been concluded or not by such SEBA with the employer.
Not all legitimate labor organizations are exclusive bargaining agents. A legitimate organization is simply a labor union that has been duly registered with the DOLE. It has the right to exist and operate, but it does not necessarily have the right to represent the employees in a particular bargaining unit. Therefore, the mere presence of a legitimate labor organization in a company does not ipso facto make such company an “organized establishment”.

Question 11

What is chartering? How does a chartered local chapter differ from a legitimate labor organization?

Answer 11

Article 241 of the Labor Code provides that a duly registered federation or national union may directly create a local chapter by issuing a charter certificate indicating the establishment of the local chapter. The chapter shall acquire legal personality only for purposes of filing a petition for certification election from the date it was issued a charter certificate.
The union recipient of the charter is called a chapter or local or chartered local. Its legal personality is derived from the federation/national union, but it may subsequently register itself independently.

Local Chapter
1. A subdivision or branch of a national union or federation
2. Derives its legal personality from the national union or federation
3. Can file a petition for certification election to represent a specific bargaining unit
4. Once certified, it becomes an EBA for that unit

Legitimate Labor Organization
1. A labor union that is duly registered with the DOLE
2. Has an independent legal personality
3. Can engage in collective bargaining, strikes, and other labor activities

Question 12

Enumerate the grounds for the cancellation of registration of a legitimate labor organization.

Answer 12

Grounds for cancellation of union registration under Article 247 of the Labor Code:
a. Misrepresentation, false statement or fraud in connection with the adoption or ratification of the constitution and by-laws or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification;
b. Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election of officers, and the list of voters;
c. Voluntary dissolution by the members.

Question 13

What is a legitimate labor organization? Enumerate its powers.

Answer 13

Legitimate labor organization
Any labor organization in the private sector registered or reported with the DOLE, in accordance with the Labor Code and its implementing rules.
Art. 251 provides that a legitimate labor organization shall have the right:
a. To act as the representative of its members for the purpose of collective bargaining;
b. To be certified as the exclusive representative of all the employees in an appropriate bargaining unit for purposes of collective bargaining;
c. To be furnished by the employer, upon written request, with its annual audited financial statements, including the balance sheet and the profit and loss statement, within 30 calendar days from the date of receipt of the request, after the union has been duly recognized by the employer or certified as the sole and exclusive bargaining representative of the employees in the bargaining unit, or within 60 calendar days before the expiration of the existing collective bargaining agreement, or during the collective bargaining negotiation;
d. To own property, real or personal, for the use and benefit of the labor organization and its members;
e. To sue and be sued in its registered name; and
f. To undertake all other activities designed to benefit the organization and its members, including cooperative, housing, welfare and other projects not contrary to law.
g. Notwithstanding any provision of a general or special law to the contrary, the income and the properties of legitimate labor organizations, including grants, endowments, gifts, donations and contributions they may receive from fraternal and similar organizations, local or foreign, which are actually, directly and exclusively used for their lawful purposes, shall be free from taxes, duties and other assessments. The exemptions provided herein may be withdrawn only by a special law expressly repealing this provision.

Question 14

What is a federation? State and explain one extra-ordinary power granted by law to a federation.

Answer 14

A National Union/Federation is any labor organization with at least 10 locals/chapters each of which must be a duly certified or recognized collective bargaining agent. It will acquire legal personality upon issuance of Certificate of Registration Power.
Article 241 of the Labor Code provides that a duly registered federation or national union may directly create a local chapter by issuing a charter certificate indicating the establishment of the local chapter.
The federation may represent the union in CBA negotiations. However, if it was the federation which negotiated all the CBAs in the establishment, the local chapter cannot negotiate the renewal of the CBA without the consent and participation of the federation.
The federation or national union is commonly known as the “mother union.” The mother union, acting for and in behalf of its affiliate, has the status of an agent while the affiliate remains the principal – the basic unit of the association free to serve the common interest of all its members, subject only to the restraints imposed by the constitution and by-laws of the association.
A PCE may be filed by any legitimate labor organization, including a national union or federation that has issued a charter certificate to its local chapter/chartered local. The former is filing the PCE for and on behalf of the latter.

Question 15

Discuss the People’s Broadcasting Service (Bombo Radyo) ruling on the jurisdiction of the Labor Arbiter and the Regional Director with respect to money claims.

Answer 15

Labor Arbiters have no jurisdiction over small money claims lodged under Art. 129, except when the claim includes a prayer for reinstatement (Art. 224). It must be noted that RA No. 7730 (An Act Further Strengthening the Visitorial and Enforcement Powers of the Secretary of Labor) did away with the P5,000 limitation allowing the DOLE Secretary to exercise its visitorial and enforcement power for claims beyond P5,000. The only qualification to this expanded power of the DOLE was that there still be an existing employer-employee relationship.
To recapitulate, if a complaint is brought before the DOLE to give effect to the labor standards provisions of the Labor Code or other labor legislation, and there is a finding by the DOLE that there is an existing employer-employee relationship, the DOLE exercises jurisdiction to the exclusion of the NLRC. If the DOLE finds that there is no employer-employee relationship, the jurisdiction is properly with the NLRC.
If a complaint is filed with the DOLE, and it is accompanied by a claim for reinstatement, the jurisdiction is properly with the Labor Arbiter, under Art. 217(3) of the Labor Code, which provides that the Labor Arbiter has original and exclusive jurisdiction over those cases involving wages, rates of pay, hours of work, and other terms and conditions of employment, if accompanied by a claim for reinstatement.
If a complaint is filed with the NLRC, and there is still an existing employer-employee relationship, the jurisdiction is properly with the DOLE. The findings of the DOLE, however, may still be questioned through a petition for certiorari under Rule 65 of the Rules of Court.

Question 16

Distinguish regular employment from casual employment.

Answer 16

In a regular employment, the employees are ones who have been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer; who has rendered at east 1 year of service, whether continuous or broken with respect to the activity in which he is employed.
In casual employment, the employees are those who are not regular, project, or seasonal employees (Art. 295), and as a general rule, those performing activities not usually necessary or desirable in the employer’s usual business or trade. (GMA Network v. Pabriga, 2013).

Question 17

What is fixed-term employment? What are its requisites to be valid?

Answer 17

Employees whose employment contract specifies that the same will last only for a definite period (Brent School v. Zamora, G.R. No. L-48494, February 5, 1990);

Requisites of a Fixed-Term Employment
1) The fixed period of employment was knowingly and voluntarily agreed upon by the parties without any force, duress, or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent; or
2) It satisfactorily appears that the employer and the employee dealt with each other on more or less equal terms with no moral dominance exercised by the former or the latter.

Question 18

What is project employment? How is it different from seasonal employment?

Answer 18

In Project Employment, the employees are those whose employment has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of the engagement of the employee (Gapayao v. Fulo, G.R. No. 193493, July 13, 2013);
Seasonal employees are those who work or perform services which are seasonal in nature and the employment is for the duration of the season.

Question 19

What is featherbedding? Illustrate.

Answer 19

Featherbedding is a term given to employee practices which create of spread employment by unnecessarily maintaining or increasing the number of employees used or the amount of time consumed, to work on a particular job.
Unions, aiming to preserve jobs, may request gradual introduction or avoidance of technological changes, leading to retaining more workers than needed for the available work.
Consequently, this unnecessarily increases the number of employees or time spent on a job, which ultimately sustains higher wages by creating an artificial demand for workers.

Requisites for featherbedding
The labor organization, its officers, agents or representatives have caused or attempted to cause an employer either:
a. To pay or agree to pay any money, including the demand for fee for union negotiations
b. To deliver or agree to deliver any things of value

Question 20

What is a yellow dog condition? Illustrate.

Answer 20

Yellow Dog Condition is that which requires as a condition for employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs
A Yellow Dog Contract is one which exacts from workers as condition of employment that they shall not join or belong to a labor organization, or attempt to organize one during their period of employment or that they shall withdraw therefrom in case they are already member of labor organization.

The typical yellow dog contract contains the following provisions:
a. A representation by the-employee that he is not a member of a labor union
b. A promise by the employee not to join a labor union
c. A promise by the employee that, upon joining a labor union, he will quit his employment
d. The act of the employer in imposing such a condition constitutes ULP in the contract is null and void

Illustration: “Alex agrees not to join any labor union during the period of his employment. Should Alex violate this, his employment must be terminated immediately.”

Question 21

What is boulwarism? Illustrate.

Answer 21

It is a labor negotiation strategy named after General Electric’s former Vice President, Lemuel Boulware. It is a “take-it-or-leave-it” offer in a negotiation, with no further concessions or discussion constitutes as an ULP. It is a violation of good faith in bargaining. It includes the failure to execute the CBA.
It is also known as the “Take-It-or-Leave-It Bargaining,” or “bad faith bargaining”

Illustration: Where the company prepares for contract renewal negotiations with a union. Before talks begin, the company conducts internal research to determine what they consider a reasonable offer, including salaries, benefits, and working conditions. Then they prepare an offer they believe that company’s needs with fair compensation for workers. Then, they present the proposal at the first meeting with the union, stating, “This is our best and final offer.”

Question 22

Enumerate the authorized causes for termination of employment by the employer; explain one of them.

Answer 22

Authorized causes are grounds for separation of employment (no fault by the employee). It is called authorized causes because the employer is authorized to separate employees from their employment due to a legitimate business reason or a requirement by law or regulations.

Enumeration of authorized causes
1. Installation of labor-saving devices;
2. Redundancy;
3. Retrenchment;
4. Closing or cessation of business operations;
5. Disease; and
ART. 299. [284] Disease as Ground for Termination.
An employer may terminate the services of an employee who has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees: Provided, That he is paid separation pay equivalent to at least one (1) month salary or to one-half (1/2) month salary for every year of service, whichever is greater, a fraction of at least six (6) months being considered as one (1) whole year.

6. Permanent lay-off (after 6-month work suspension).

Question 23

Enumerate the just causes for termination of employment by the employer; explain one.

Answer 23

Enumeration (Art. 297)
A. Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;

B. Gross and habitual neglect by the employee of his duties;
As a general rule, negligence must be both gross and habitual to be a valid ground to dismiss. Habituality may be disregarded if negligence is gross or the damage or loss is substantial.
Gross negligence implies a want or absence of, or failure to exercise even a slight care or diligence, or the entire absence of care. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them.
There is habitual neglect if based on the circumstances, there is a repeated failure to perform one’s duties for a period of time.

C. Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;

D. Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and

E. Other causes analogous to the foregoing.

Question 24

Discuss the Kiok Loy ruling otherwise known as the “lock, stock and barrel doctrine” regarding the effects of an employer’s refusal to bargain collectively.

Answer 24

Under this rule, the CBA proposed by the union may be imposed lock, stock and barrel on the employer who refused to negotiate a CBA. The employer who violates the duty to bargain collectively loses its statutory right to negotiate or renegotiate the terms and conditions of the draft CBA proposed by the union. Hence, the proposals of the union may be adopted as the CBA and, consequently, imposed on the employer lock, stock and barrel

Question 25

Discuss the effects of non-observance of procedural due process in termination disputes.

Answer 25

When dismissal is for a just or authorized cause but due process was not observed, the dismissal should be upheld. However, the employer should be held liable for non-compliance with the procedural requirements of due process in damages. (Agabon v. NLRC, 2004)

Question 26

What is a collective bargaining unit? Enumerate the factors in determining the appropriateness of a collective bargaining unit.

Answer 26

A bargaining unit is a group of employees of a given employer comprised of all or less than all the entire body of the employees, which, consistent with equity to the employer, indicate to be best suited to serve the reciprocal rights and duties of the parties under the collective bargaining provisions of the law. Factors in determining collective bargaining unit a. Community of Interest Doctrine or Substantial Mutual Interest Rule – The employees sought to be represented by the collective bargaining unit must have community or mutuality of interest in terms of employment and working conditions as evinced by the type of work they perform. It is characterized by similarity of employment status, same duties and responsibilities and substantially similar compensation and working conditions b. Globe Doctrine – This principle is based on the will of the employees. The determining factor is the desire of the workers themselves. c. Employment Status – The determination of the appropriate bargaining unit based on the employment status of the employees is considered an acceptable mode. For instance, casual employees and those employed on a day-to-day basis do not have a mutuality or community of interest with regular and permanent employees. d. Collective Bargaining History – This principle puts a premium to the prior collective bargaining history and affinity of the employees in determining the appropriate bargaining unit. However, the existence of a prior collective bargaining history has been held as neither decisive nor conclusive in the determination of what constitutes an appropriate bargaining unit.

Question 27

What is an exclusive bargaining representative? Enumerate (do not discuss) the methods of choosing or selecting the exclusive bargaining representative.

Answer 27

Art. 267, Labor Code General Rule: The labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive bargaining representative of the employees in such a unit for the purpose of collective bargaining. Exception: An individual employee or group of employees shall have the right at any time to present grievances to their employer. Methods to Determine the Bargaining Representative a. SEBA Certification b. Certification election c. Run-off election d. Re-run election e. Consent election

Question 28

Enumerate the jurisdictional preconditions to collective bargaining. When does a collective bargaining agreement take effect?

Answer 28

Jurisdictional Preconditions: 1) Possession of the status of majority representation of the employee’s representative; 2) Proof of majority representation; and 3) A demand to bargain under Art. 261, LC. When does a CBA take effect? a. If CBA is the first ever in the bargaining unit – whatever date the parties agree on b. If the CBA is a new CBA to replace the expired one and the new CBA is concluded within 6 months from the expiry date of the old one – the date following such expiry date (Art. 265) c. If CBA was entered into outside the 6-month period – parties shall agree on the duration of the retroactivity thereof (Union of Filipino Employees v. NLRC)

Question 29

What is the duration of a collective bargaining agreement? What is the effect of non-renewal of a CBA after its expiration?

Answer 29

a. As to representation – 5 years b. As to economic and non-economic – 3 years In case of non-renewal of a CBA after its expiration, it shall remain effective and enforceable even after the expiration of the period fixed by the parties as long as no new agreement is reached by them (Art. 264).

Question 30

What is an ‘Assumption Order” issued by the Secretary of Labor? Discuss its legal effects.

Answer 30

An Assumption Order is the issuance of assumption or certification orders automatically enjoins the intended or impending strike or lockout. Where there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor will assume jurisdiction over the labor dispute of the industry. The power of assumption of jurisdiction or certification by the Secretary of Labor is in the nature of a police power measure. Effects of Assumption of Jurisdiction of the Secretary a. If a strike or lockout has not taken place, the parties are enjoined to conduct any untoward action that may lead to a strike or lockout b. If a strike or lockout has already taken place, all striking and locked out workers shall, within 24 hours from receipt of an Assumption or Certification Order, immediately return to work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike c. At any point in time, the parties are not prevented from submitting the dispute to Voluntary Arbitration with the Secretary of Labor and Employment or his/her duly authorized representative as Voluntary Arbitrator or Panel of Voluntary Arbitrators.

Question 31

What is a “labor dispute”? When may a “Certification Order” be issued by the Secretary of Labor?

Answer 31

A labor dispute includes any controversy or matter concerning terms and conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee. When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration.

Question 32

Distinguish between improved-offer balloting and reduced-offer balloting.

Answer 32

Improved offer balloting – in an effort to settle a strike, the Department of Labor and Employment shall conduct a referendum by secret balloting on the improved offer of the employer on or before the 30th day of the strike. When at least a majority of the union members vote to accept the improved offer the striking workers shall immediately return to work and the employer shall thereupon readmit Reduced offer balloting – In case of a lockout, the Department of Labor and Employment shall also conduct a referendum by secret balloting on the reduced offer of the union on or before the 30th day of the lockout. When at least a majority of the board of directors or trustees or the partners holding the controlling interest in the case of a partnership vote to accept the reduced offer, the workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement.

Question 33

What is a notice of strike? Who may file a notice of strike?

Answer 33

A Notice of strike is a formal communication served by a union or group of employees to their employer, informing them of the intent to stage a strike due to unresolved labor disputes. It should be filed with the DOLE, specifically the Regional Branch of the NCMB, copy furnished the employer. Who may file a. Notice of strike – duly certified/recognized bargaining agent at least 30 days before the intended date thereof In the case of unfair labor practices – any legitimate labor organization in behalf of its members in the absence of a duly certified/recognized bargaining agent at least 15 days from the intended date b. Notice of lockout – employer at least 30 days before the intended date thereof (Art. 278(c)) In establishments with certified bargaining agent: a) Any certified or duly recognized bargaining representative may file a notice or declare a strike in cases of ULP; and b) If the reason for the intended strike is bargaining deadlock, only the bargaining union has the legal right to file a notice of strike. The employer may file a notice or declare lockout or request for preventive mediation in the same cases. In establishments with no certified bargaining agent: Any LLO in the establishment may file a notice, request preventive mediation, or declare a strike but only on grounds of ULP. A union, instead of filing a notice of strike, may request NCMB to do preventive mediation, but the union must be the certified or duly recognized bargaining agent.

Question 34

What is a strike vote? Who are entitled to vote in a strike vote?

Answer 34

A strike vote is a requirement wherein the decision to declare a strike must be: a. approved by a majority of the total union membership in the bargaining unit concerned (not of the whole bargaining unit); and b. Obtained by secret ballot in meetings or referenda called for the purpose. A strike vote is that vote that must be taken where majority of the total union membership in the bargaining unit concerned must approve the decision to declare a strike, obtained by secret ballot in a meeting called for that purpose (Art. 278 (f)).

Question 35

35. Is Welga ng Bayan legal or illegal? Explain your answer.

Answer 35

It depends, legal if employees notified their employer or were allowed by the employer to join the welga ng bayan. Where there is no showing that the employees notified their employer of their intention, or that they were allowed by the latter, to join the welga ng bayan, their work stoppage is beyond legal protection. Employees who have no labor dispute with their employer but who, on a day they are scheduled to work, refuse to work and instead join a welga ng bayan commit an illegal work stoppage. In Biflex Phils. Inc. Labor Union, stoppage of work due to welga ng bayan is in the nature of a general strike, an extended sympathy strike. It affects numerous employers including those who do not have a specific dispute with their employees regarding their terms and conditions of employment. Employees who have no labor dispute but who, on a day they are scheduled to work, refuse to work and instead join a welga ng bayan commit an illegal work stoppage.

Question 36

Enumerate the factors affecting the legality of strikes/lockouts. Discuss one of them.

Answer 36

a. Statutory prohibition (See: #44) b. Strict compliance with procedural requirements of the law; c. Purpose must be an unfair labor practice or economic; i. Purpose test – The strike must be due to either bargaining deadlock and/or the ULP. ii. Conversion Doctrine – Involves the conversion of a strike from an economic to a ULP and vice versa. A strike/lockout may start as an economic strike/lockout but later on because of the actuation of the parties, the same may be converted to a ULP strike/lockout, or vice versa. Under this situation, the conversion doctrine shall apply in which case the requirements for the converted strike/lockout shall be observed (Consolidated Labor Ass’n of PHL v. Marsman and Co, Inc.). d. Lawful means and methods; Means employed test – It states that a strike may be legal at its inception but eventually be declared illegal if the strike is accompanied by violence which is widespread, pervasive, and adopted as a matter of policy and not mere violence which is sporadic and which normally occurs in a strike area. Doctrine of Means and Purposes – A strike is legal when lawful means concur with lawful purpose (Bacus v. Ople). e. Injunction; and f. Agreement of the parties (See: #44)

Question 37

Distinguish between resignation and retirement.

Answer 37

Resignation is the voluntary act of an employee who “finds himself in a situation where he believes that personal reasons cannot be sacrificed in favor of the exigency of the service, then he has no other choice but to disassociate himself from his employment.” Retirement is the withdrawal from office, public station, business, occupation, or public duty. It is the result of a bilateral act of the parties, a voluntary agreement between the employer and the employee whereby the latter after reaching a certain age agrees and/or consents to sever his employment with the former.

Question 38

What is an unfair labor practice? Cite two (2) examples of ULP committed by a labor organization or its officers and representatives.

Answer 38

Unfair labor practices violate the constitutional right of workers and employees to self- organize, are inimical to the legitimate interests of both labor and management, including their right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect, disrupt industrial peace and hinder the promotion of healthy and stable labor-management relations. Consequently, unfair labor practices are not only violations of civil rights of both labor and management but are also criminal offenses against the State (Art. 258). The act complained of as ULP must have a proximate and causal connection with: a) Exercise of the right to self-organization; b) Exercise of the right to collective bargaining; or c) Compliance with CBA Elements of Unfair Labor Practice a. Employer-employee relationship between the offender and the offended party b. Act done is expressly defined in the code as an act of unfair labor practice Labor Code Provisions on ULP vi. Article 260. [249] Unfair Labor Practices of Labor Organizations. — It shall be unfair labor practice for a labor organization, its officers, agents or representatives: a. To restrain or coerce employees in the exercise of their right to self- organization. However, a labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of membership; XXX c. To violate the duty, or refuse to bargain collectively with the employer, provided it is the representative of the employees; xxx e. To ask for or accept negotiation or attorney's fees from employers as part of the settlement of any issue in collective bargaining or any other dispute; or f. To violate a collective bargaining agreement.

Question 39

Distinguish “just cause” from “authorized cause” dismissal of employees.

Answer 39

DISMISSAL FOR JUST CAUSE Employee is dismissed for causes which are attributable to his fault or culpability Not entitled to separation pay Employee must be given ample opportunity to be heard and to defend himself before being dismissed DISMISSAL FOR AUTHORIZED CAUSE Employee is dismissed for causes brought by the necessity and exigencies of business, changing economic conditions, and illness of the employee Employer must give the employee a written notice at least 1 month before the intended day of termination

Question 40

Enumerate the exclusive and original jurisdiction of the Labor Arbiter

Answer 40

1. Unfair labor practice cases; 2. Termination disputes; 3. If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment; 4. Claim for actual, moral, exemplary and other forms of damages arising from EER; 5. Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts; and 6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims, arising from employer-employee relations, including those of persons in domestic or household service, involving an amount P5,000 regardless of whether accompanies with a claim for reinstatement.

Question 41

What is voluntary arbitration? Enumerate the jurisdiction of a Voluntary Arbitrator.

Answer 41

Voluntary arbitration refers to the mode of settling labor-management disputes by which the parties select a competent, trained and impartial persons who shall decide on the merits of the case and whose decisions is final, executory and unappealable. Jurisdiction of VA (a) Those arising from the implementation or interpretation of the CBA; and, (b) Those arising from the interpretation or enforcement of company personnel policies which remain unresolved after exhaustion of the grievance procedure. (Section 1, Rule XI, Omnibus Rules Implementing the Labor Code)

Question 42

What is a grievance? How is grievance resolved?

Answer 42

A grievance is any question by either the employer or the union regarding: (a) The interpretation or implementation of any provision of the CBA (b) Interpretation or enforcement of company personnel policies (c) Violation of any provisions of the CBA or company personnel policies. How is grievance resolved? It should go through the procedure stipulated in the CBA (Grievance Machinery) —> Voluntary Arbitration —> MR within 10 days —> Appeal to CA within 15 days

Question 43

What is a collective bargaining agreement? Explain the “automatic renewal rule” in connection therewith.

Answer 43

A Collective Bargaining Agreement 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. The “Automatic Renewal Rule” states that the CBA shall remain effective and enforceable even after the expiration of the period fixed by the parties as long as no new agreement is reached by them (Art, 264). This is to avoid/prevent a situation where no CBA at all would govern between the employer company and its employees. It also pertains only to the economic provisions of the CBA and does not include the representational aspect of the CBA (PICOP Resources Inc. V. Dequilla).

Question 44

xplain how the legality or illegality of a strike is affected by “agreement” and “statutory prohibition”.

Answer 44

Agreement – such as a no-strike clause or conclusive arbitration clause. A no-strike prohibition in a CBA is applicable only to economic strikes. In other words, ULP Strike is not covered and workers may go on strike based on ULP despite the no strike provision. Prohibition of law Government employees have the right to organize and this has been discussed in the comments to Articles 243-246. But they do not have the right to strike. A strike held by them would be an example of an illegal strike that violates a legal prohibition. Government employees may, through their unions or associations, either petition the Congress for the betterment of the terms and conditions of employment which are within the ambit of legislation or negotiate with the appropriate government agencies for the improvement of those which are not fixed by law. If there be any unresolved grievances, the dispute may be referred to the Public Sector Labor- Management Council for appropriate action.

Question 45

Explain briefly what is the “contract bar rule.

Answer 45

Under this rule, the existence of the CBA, the contract referred to therein, bars the filing of a PCE. Once a CB is duly registered and validly subsisting, no PCE or any other action should be entertained that may disturb the administration of the duly registered existing CBA. Neither party should terminate nor modify such agreement during its lifetime. Inter-union electoral contests are therefore not allowed. Exceptions: a. During the 60-day freedom period immediately prior to the expiry date of a CBA b. When the CBA is not registered with the BLR or any of the DOLE Regional Offices

Question 46

What do you understand by “tentative legal personality”?

Answer 46

Tentative legal personality refers to the provisional recognition granted to a labor union while it awaits final registration or resolution of any challenges to its legitimacy. This allows the union to perform certain activities despite its status as a legitimate labor organization and ensures that workers can organize and collectively assert their rights without unnecessary delays caused by administrative processes.

Question 47

What is the doctrine of “non-commingling of members”? What is the effect, if any?

Answer 47

Non-commingling of members is a prohibition against the mingling of supervisory and rank-and-file employees in one labor organization. The Labor Code does not provide for the effects thereof. After a labor organization has been registered, it may exercise all the rights and privileges of a legitimate labor organization. Any mingling between supervisory and rank-and-file employees in its membership cannot affect its legitimacy for that is not among the grounds for cancellation of its registration, unless such mingling was brought about by misrepresentation, false statement or fraud under Article 239, LC. Exception: Unless brought about by misrepresentation, false statement or fraud under Art. 247.

Question 48

When may an employer validly dismiss an employee on the ground of “retrenchment”?

Answer 48

Retrenchment is the reduction of personnel due to poor financial returns as to cut down on costs of operations in terms of salaries and wages to prevent bankruptcy of the company. Cutting of expenses includes the reduction of personnel; it is a management prerogative, a means to protect and preserve the employer’s viability and ensure his survival. It must be effected in good faith and for the retrenchment, which is after all a drastic recourse with serious consequences for the livelihood of the employee is or otherwise laid-off. The kind of losses is actual or anticipated/impending losses. There is NO prohibition for the employer to embark on retrenchment program if he could perceive that its economy will go down the drain. Proof of actual losses or possible imminent losses is the most singular distinctive requisite of retrenchment, which installation of labor-saving device and redundancy do not have. Requisites of a Valid Retrenchment 1. Written notice served on both the employee and the DOLE at least one (1) month prior to the intended date of retrenchment; 2. Payment of separation pay equivalent to at least one month pay or at least one-half (1/2) month pay for every year of service, whichever is higher; 3. Good faith in effecting retrenchment; 4. Proof of expected or actual losses; 5. To show that the employer first instituted cost reduction measures in other measures in other areas of production before undertaking retrenchment as a last resort; and\ 6. The employer used fair and reasonable criteria in ascertaining who would be retained among the employees, i.e., status, efficiency, seniority, physical fitness, age, and financial hardship Criteria in Selecting Employees to Be Retrenched a) Less preferred status; b) Efficiency rating; c) Seniority d) Contribution to income

Question 49

Discuss the four-fold test in determining the existence of EER

Answer 49

Elements of Employer-Employee Relationship a. Selection and engagement of employee b. Payment of wages c. Power of dismissal d. Power of control The four-fold test may be regarded as the traditional test of employment, but it is not the sole test. There is need to examine other existing conditions between the parties, The control test, or the employer’s power to control or right to control the employee not only as to the result of the work to be done but also as to the means and methods by which the same is to be accomplished, is the most important test used by the courts.

Question 50

Explain the duty to bargain collectively in accordance with the Labor Code.

Answer 50

In the absence of an agreement or other voluntary arrangement providing for a more expeditious manner of collective bargaining, it shall be the duty of the employees to bargain collectively in accordance with the provisions of this Code. (Art. 242, LC.) It means the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work, and all other terms and conditions of employment, including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreements if requested by either party, but such duty does not compel any party to agree to a proposal or to make any concession. (Art. 243, LC.)