Labor Unions Flashcards
What is a Chartered Local?
A union created through chartering is called a local, a chapter, or chartered local in the employer enterprise where union officers and members are employees
What is Commingling?
Commingling of supervisors and rank and file in one union is not a ground to cancel a union registration. Said employees are AUTOMATICALLY deemed removed from the list of membership of said union.
What is Non-Disclosure of Identity?
In organized enterprise, the federation who files petition for certification election of a chapter cannot be required to identify the chapter’s officers and members. The PCE does not have to be filed by the local officers.
What is meant by Employer a Bystander?
In a Petition for Certification Election, the employer is a bystander and has no right to oppose the petition. His participation is limited to being INFORMED of the petition and to being required to submit the list of employees if a a Certification Election will be held.
Can a trade union center create a chapter?
No. Only a duly registered federation or unions may create chapters.
Define Collective Bargaining Unit.
It refers to a group of employees sharing mutual interest within a given employer unit, comprised of all or less than all of the entire body of employees in the employer unit or any specific occupational or geographical grouping of such employer unit.
What is a Bargaining Representative?
The union has to be registered and has to go through the process of registration by the DOLE or through election among employees whom the union will represent.
What is an Exclusive Bargaining Representative?
It is a legitimate labor union DULY RECOGNIZED or CERTIFIED as the sole and exclusive bargaining agent or representative to all the employees in a bargaining unit that will negotiate a collective contract with the employer.
May a non-recognized or non-certified union collectively bargain with the employer?
No. Not being a legitimate labor organization, it is not entitled to the rights granted under Art. 250.
Define Union.
It refers to a labor organization in the private sector organized for collective bargaining and for other legitimate purposes.
What is a Legitimate Labor Organization?
It refers to a labor organization in the private sector registered or reported with the Department in accordance with Rules III and IV of the Rules. We should note that not every union is legitimate; only those properly registered are considered LLO. But non-registration does not mean it is illegitimate; it simply is unregistered and has no legal personality. It exists legally but does not possess the rights of an LLO.
May government employees form unions?
Yes. The general rule is that all government employees can form, join or assist employee’s organizations of their own choosing for the furtherance and protection of their interest. (E.O. No. 180, Sec. 2). This rule applies to all employees of all branches, subdivisions, instrumentalities, and agencies of the Government including GOCC’s with original charters.
Discuss the eligibility of foreigners to form labor organizations.
Aliens, working in the country with valid permits issued by DOLE, may exercise the right to self-organization and join or assist labor organizations of their own choosing for purposes of collective bargaining provided; that said aliens are nationals of a country which grants the same or similar rights to Filipino workers. This embodies the Principle of Reciprocity.
May employees whose religious beliefs prohibits formation/joining of unions, still form the same?
Yes. The right of members of the INC sect not to join a labor union for being contrary to their religious beliefs does not bar members of that sect from forming their own union, for the recognition of the tenets of the sect should not infringe on the basic right to self-organization granted by the Constitution to workers regardless of religious affiliation. (Kapatiran vs. Ferrer-Calleja, G.R. No. 82914, June 20, 1988)
What are the Three Specified Grounds for Cancellation?
1) Falsehood about the Constitution and By-Laws;
2) Falsehood about the election of officers;
3) Voluntary dissolution;
What is the essential element for fraud and misrepresentation to constitute grounds for cancellation of union registration?
For fraud and misrepresentation to constitute grounds for cancellation of union registration under the Labor Code, the nature of the fraud and misrepresentation must be grave and compelling enough to vitiate the consent of a majority of union members.
What is the nature of a direct challenge to the legitimacy of labor organization based on fraud and misrepresentation in securing its certificate of registration?
A] direct challenge to the legitimacy of a labor organization based on fraud and misrepresentation in securing its certificate of registration is a serious allegation which deserves careful scrutiny. Allegations thereof should be compounded with supporting circumstances and evidence.
What is Cancellation by Action of the Members?
At least two-thirds of the membership may vote to dissolve their organization, but this action requires a subsequent “application to cancel” to be submitted by the board of the organization, attested by the president.
Can the Petition for Certification Election proceed despite petition to cancel union registration?
A petition to cancel union registration does not prevent the filing or hearing of a petition for Certification Election.
Is non-submission of reports a ground for cancellation?
Non-submission of these reportorial requirements is no longer a ground to cancel registration, but erring officer may be punished even by expulsion.
When is a request for Sole and Exclusive Bargaining Agent (SEBA)?
Request for SEBA Certification or simply Request is when the DOLE Regional Director is under mandate to extend such SEBA Certification upon showing by the requesting union in compliance with the legal requirements. Request is granted only to an unorganized establishment with only one legitimate union.
What is an Affiliate?
An affiliate is an independently registered union that enters into an agreement of 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.
Describe the relationship of local chapter and a labor federation or national union?
It is an agency. The local is the principal and the federation the agent. Affiliation by a duly registered union with a national union or federation does not make the local union lose its legal personality. Despite affiliation, the local union remains the basic unit free to serve the common interest of all its members. A local union does not owe its existence to the federation with which it is affiliated. It is separate and distinct voluntary association owing its creation to the will of its members. Mere affiliation does not divest the local union of its own personality, neither does it give the mother federation the license to act independently of the local union. It only gives rise to a contract of agency, where the former acts in representation of the latter.
Is the denial of the application or notice appealable?
Yes. The denial by the regional office may be appealed to the Bureau of Labor Relations and then to the Court of Appeals (CA). But if the denial originated at the Bureau itself, the appeal is to the Secretary of Labor and then, if appropriate, to the CA. The appeal should be filed within 10 days from receipt of the notice of denial on the ground of grave abuse of discretion or violation of the Rules. The Bureau or the Office of the Secretary shall decide the
What are the requirements of Affiliation?
An independently registered union affiliating with a federation or national union is required to report such affiliation. The report shall be filed with the Regional Office that issued its certificate of registration.
What is the right to Disaffiliation?
A local union who has affiliated itself with a federation is free to sever such affiliation or declare its autonomy from the federation to which it belongs when the circumstances so warrant, in accordance with the constitutional guarantee of freedom of association. It may sever its affiliation at any and such disaffiliation cannot be considered disloyalty in the absence of specific provision in the federation’s constitution prohibiting disaffiliation or the declaration of the autonomy of a local union. There is no provision in the federation’s constitution, which prohibits disaffiliation or the declaration of autonomy of a local union.
What is the essence of disaffiliation?
Local unions remain the basic units of association, free to serve their own interests subject to restraints imposed by the constitution and by-laws of the national federation, and free also to renounce the affiliation upon the terms laid down in the agreement which brought the affiliation into existence. In other words, to disaffiliate is a right but to observe the terms of the affiliation is an obligation.
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. The “Freedom Period” refers to the last 60 days of the fifth and last year 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. This ruling, is true only if the contract of affiliation does not specify the period of possible disaffiliation. If it does, the stipulation must be observed.
How disaffiliation is effected?
Disaffiliation has to be decided by the entire membership through secret balloting in accordance with Article 250 (d). An individual member or any number of members may disaffiliate from the union during the “freedom period.” But disaffiliating the union itself from its mother union must be supported by the majority of the members. If done by a minority, even during the freedom period, the act may constitute disloyalty. The minority members breaking away at the wrong time may be expelled from the union and because of union security clause, may be removed from their employment.
What is the effect of disaffiliation on union dues?
The obligation of the employer to deduct and remit dues to the federation is conditioned on the individual check-off authorization of the local union members. The federation is entitled to receive the dues from the employer only as long as the local union is affiliated with the federation. Without said affiliation, the employer has no link to the mother union. The obligation of an employee to pay union dues is coterminous with his affiliation or membership. The employee’s check off authorization, even if declared irrevocable, is good only as long as they remain members of the union concerned.
However, a local union which has validly withdrawn from its affiliation with the parent association and which continues to represent the employees of an employer is entitled to the check-off dues under a collective bargaining contract.
What is the “Substitutionary” Doctrine?
The “Substitutionary Doctrine” provides that the employees cannot revoke the validly executed collective bargaining agreement with their employer by the simple expedient of changing their bargaining agent. The new agent must respect the contract. The employees, through their new bargaining agent, cannot renege on the collective bargaining contract, except to negotiate with management for the shortening of the period.
What is the nature of the issue of affiliation or disaffiliation in relation to the employer?
The issue of affiliation or disaffiliation is an intra-union dispute that must be resolved in an action at the instance of the federation or the union or a rival labor organization, not the employer.
Summarize the rules on Affiliation and Disaffiliation.
A local union may affiliate or disaffiliate from a federation. This is an exercise of the right of association recognized by the Constitution’s Bill of Rights. But affiliation and disaffiliation entail rights and obligations. Internally, between the union and its members, affiliation/disaffiliation is a major issue that can be decided only by a majority of the members through secret balotting in a formal meeting duly called for the purpose. Externally between the chapter and the federation, affiliation/disaffiliation is a contractual relation. Assuming that the elements of a valid contract exists, the contractual rights and obligations must be complied with. The affiliation contract cannot absolutely prohibit disaffiliation but may impose limitation or restrictions. It may specify the number or proportion of the votes needed or the appropriate period to disaffiliate. The contract restrictions should be observed.
By affiliating or disaffiliating, the local union does not dissolve itself nor does it lose its standing as the principal; the federations is the agent. But the local union, even a local chapter, must be a legitimate labor organization – it must have been registered with the DOLE, otherwise it is not entitled to the rights of an LLO. Again, to register or not is a question that must be decided democratically within the union.
Can the charter issued to a local, chapter or branch be revoked?
Yes. A federation, national union or worker’s association may revoke the charter issued to a local or chapter or branch by serving 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 worker’s 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.
What is the effect of Cancellation of Registration of Federation or National Union on locals/chapters?
The cancellation of registration of a federation or national union shall operate to divest its locals/chapters of their status as legitimate labor organizations, unless the locals or chapters are covered by a duly registered collective bargaining agreement. In the latter case, the locals or chapters shall be allowed to register as independent unions, failing which they shall lose their legitimate status upon the expiration of the collective bargaining agreement.
What are the effects of Merger and Consolidation of Labor Organizations?
One effect of merger is to transfer to the absorbing organization all the rights, interest and obligations of the absorbed organization. In consolidation the newly created labor organization acquires all the rights, interest and obligations of the consolidating labor organizations.
Where to File Notice of Merger and Consolidation?
Notice of merger and consolidation of independent labor unions, chartered locals and worker’s associations shall be filed with and recorded by the Regional Office that issued the certificate of registration/certificate of creation of chartered local of either the merging or consolidating labor organization. Notice of merger or consolidation of federations or national unions shall be filed and recorded with the Bureau.
What is the effect of Change of Name?
The change of name of a labor organization shall not affect its legal personality. All the rights and obligations of a labor organization under its old name shall continue to be exercised by the labor organization under its new name.
What are the grounds for cancellation of union registration?
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;
Does the petition for cancellation affect the proceedings for a certification election?
No. A petition for cancellation of union registration shall not suspend the proceedings on certification election nor shall it prevent the filing of petition for certification election. In case of cancellation, nothing herein shall restrict the right of the union to seek just and equitable remedies in the appropriate courts. (Art. 246 [238-A])
What is Voluntary Cancellation of Registration?
The registration of a legitimate labor organization may be cancelled by the organization itself, provided, that at least two-thirds of its general membership votes in a meeting duly called for that purpose to dissolve the organization, Provided further, That an application to cancel registration is therefore submitted by the board of the organization, attested to by the president thereof.
What is the effect of the cancellation of union registration?
It divest the organization of the status of a legitimate labor organization. It reverts to its character prior to its registration. Although it does not cease to exist or become an unlawful organization, its juridical personality as well as its statutory rights and privileges is suspended. It therefore loses entitlement to the rights enumerated in Article 251 of the Labor Code. It cannot demand recognition by or bargaining with the employer, cannot file a petition for certification election and cannot strike.
What is meant by Equity of the Incumbent?
All existing federations and national unions which meet the qualifications of a legitimate labor organization and none of the grounds for cancellation shall continue to maintain their existing affiliates regardless of the nature of the industry and the location of the affiliates.
What is the nature of the relationship between union and its members?
It is fiduciary in nature. The union may be considered the agent of its members for the purpose of securing for them fair and just wages and good working conditions. As agent, the union is subject to the obligation of giving the members as its principals all information relevant to the union and labor matters entrusted to it.
What are the rights of Union members?
The rights and conditions of membership laid down in Article 250 may be summarized as follows:
1) Political right – the member’s right to vote and be voted for, subject to lawful provisions on qualifications and disqualifications;
2) Deliberative and decision-making right – the member’s right to participate in deliberations on major policy questions and decide them by secret ballot;
3) Rights over money matters – the member’s 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 officer’s compensation; the right to vote on proposed special assessments and be deducted a special assessment only with member’s written authorization.
4) Right to information – the members right to be informed about the organization’s constitution and by-laws and the collective bargaining agreement and about labor laws
Does an employee has the personality and the right to make individual personal representation to the employer?
Yes. Membership in the union does not divest the members of their primary standing as employees. In this capacity, an individual employee stands apart from the union. He has the personality and the right to make individual personal representation to the employer. This fact is explicitly recognized in Article 266 stating that “an individual employee or group of employees shall have the right at any time to present grievances to their employer.” The worker is an employee first and union member second. As between the members of the union, the members are the principal, the union is the agent or representative. This is the reason policy questions are decided by the membership. That sovereign power emanates from the people is 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?
It depends upon the union’s constitution and by-laws inasmuch as Article 260 gives a labor organization the right to prescribe its own rules for acquisition or retention of membership. Nonetheless, under Art. 292 an employee is already qualified for union membership starting on his first day of service.
Does being a member of the Collective Bargaining Unit mean membership of the union?
No. Membership in the CBU does not automatically mean membership in the union. Members of certain religious sects, for instance, do not join unions although they are members of a bargaining unit. CBU members vote to select a bargaining union or ratify a CBA. But only union members can vote to elect union officers, to strike or not to strike or to decide major policy issues in the union.
Summarize the rules on membership of the union, CBA or CBU.
Inclusion in the CBU depends on the determination of its appropriateness under Article 240 and Article 267.
Inclusion or membership in a union depends on the union’s constitution and by laws, without prejudice to Article 292 (c).
Inclusion or coverage in the CBA depends on the stipulations in the CBA itself.
How Union Officers are elected?
The officers of the union are elected directly by the members in secret ballot voting. The election takes place at intervals of five years which is the term of office of union officers including those of a national union, federation, or trade union center. What positions to fill up, where, and how the election should be done are matters left by law to the union’s constitution and by-laws or to agreement among the members. Only in the absence thereof will the Implementing Rules of Book V apply.
What is the requirement for cancellation of union registration or expulsion of officer from office, whichever is appropriate?
At least 30% of all the members of the union or any member or members specially concerned may report such violation to the Bureau. The Bureau shall have the power to hear and decide reported violation to mete the appropriate penalty. Under D.O. 40-03 (Rule XIII, Section 4) any complaint or petition with allegations of mishandling, misappropriation or non-accounting of funds in violation of Article 250 shall be treated as an intra-union dispute. It shall be heard and resolved by the Med-Arbiter pursuant to the provisions of Rule IX (regarding inter/intra-union disputes)
Is the rule with regard to 30% requirement absolute?
No. The 30% requirement is not mandatory (Rodriguez vs. Director of Bureau of Labor Relations G.R. No. L-75579-82 and L-80504, August 31, 1988). The very article relied upon militates against the proposition. It states that a report of a violation of rights and conditions of membership in a labor organization may be made “ (aAt least thirty percent (30%) of all the members of the union or any member or members specially concerned.” The use of the permissive “may” in the provision at once negates the notion that the assent of 30% of all the members is mandatory. More decisive is the fact that the provision expressly declares that the report may be made, alternatively by “any member or members specially concerned.” And further confirmation that the assent of 30% of the union members is not a factor in the acquisition of jurisdiction by the Bureau of Labor Relations is furnished by Article 226 of the same Labor Code, which grants original and exclusive jurisdiction to the Bureau and the Labor Relations Division in the Regional Offices of the Department of Labor and Employment over all inter-union and intra-union conflicts and all disputes, grievances or problems arising from or affecting labor management relations making no reference whatsoever to any such 30% support requirement. Indeed, the officials mentioned are given the power to act on all inter-union and intra-union conflicts (1) “upon request of either or both parties;” as well as (2) “at their own initiative.”
Who can take part in the election of union officers?
Only members of the union can take part in the election of union officers. A member of 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 union’s constitution and by-laws.
Can the union impose conditions for voting eligibility?
Yes. A labor organization may prescribe reasonable rules and regulations with respect to voting eligibility. Thus, it may, in appropriate circumstances defer eligibility to vote by requiring a reasonable period of prior membership, such as six months or a year. While the right to vote may thus be deferred within reasonable limits, a union may not create special classes of non-voting members.
May the Labor organization condition the exercise of the right to vote on the payment of dues?
Yes. Paying of dues is basic obligation of membership. However, this rule is subject to two qualifications in that:
a) Any rule denying dues-delinquent members the right to vote must be applied uniformly; and
b) Members must be afforded a reasonable opportunity to pay dues including a grace period during dues may be paid without loss of rights;
Is the submission of employees name to the BLR a condition sine qua non to enable members to vote?
No. Submission of the employee’s name with the Bureau of Labor Relations as qualified members of the union is not a condition sine qua non to enable said members to vote in the election of the union’s officers.
What is the requirement to be Union Officer?
No person who is not an employee or worker of the company or establishment where an independently registered union, affiliate, local or chapter of a labor federation or national union operates shall henceforth be elected or appointed as an officer of such union, affiliate, local or chapter. In short, one should be employed in the company to qualify as officer of a union in that company.
Who are disqualified to become union officers?
No person who has been convicted of a crime involving moral turpitude shall be eligible for election as union officer or for appointment to any position in the union.
A crime involving moral turpitude is one characterized by “ an act of baseness, vileness or depravity in the private and 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 to man or conduct contrary to justice, honesty, modesty or good morals. Article 250 (e) provides that, “no labor organization shall knowingly admit as member or continue in membership any individual who belongs to a subversive organization or who is engaged directly or indirectly in any subversive activity.” The membership disqualification applies with equal force to candidates in union elections; in other words, one who cannot even be a member cannot be a candidate for an office.
What is the rule in case of expulsion of a member?
He can be expelled only for valid cause and by following the procedure outlined in the constitution and by-laws of the union.
What is the general rule in case of inter-union disputes?
Generally, the redress must first be sought within the union itself in accordance with its constitution and by-laws. When the Constitution and by-laws of both unions dictate the remedy for intra-union disputes, this should be resorted to not only to give the grievance machinery or appeals body of the union an opportunity to decide the matter by itself but also to prevent unnecessary and premature resort to administrative or judicial bodies. Thus, a party with an administrative remedy must not merely initiate the prescribed administrative procedure to obtain relief but also to pursue to its appropriate conclusion before seeking judicial intervention. This rule clearly applies to the instant case. The underlying principle of the rule of exhaustion of administrative remedies rest on the presumption that when the administrative body or grievance machinery as in this case, is afforded a chance to pass upon the matter, it will decide the same correctly. Petitioner’ premature invocation of public respondents intervention is fatal to his cause of action.
If intra union remedies have failed to correct any violations of the internal labor organization procedures, a case can be filed with the Bureau of Labor Relations, which is authorized to hear and decide cases of this nature.
Is there an exception to requirements of exhaustion of administrative remedy?
Yes.
1) When resort thereto would practically amount to denial of justice;
2) When there is violation of due process.
What is the effect of violation of rights?
If the conditions of membership or the rights of the members are violated, the violation may result in the cancellation of union registration or the expulsion of culpable officers.
Under D.O. 40-03, any complaint or petition with allegations of mishandling, misappropriation or non-accounting of funds in violation of Article 250 shall be treated as an intra-union dispute. It shall be heard and resolved by the Med Arbiter pursuant to Rule XI.
What is the Visitorial Power of the Secretary of Labor with regard to financial activities of any labor organization?
Article 289 authorizes the Secretary of Labor and Employment or his duly authorized representative to inquire into the financial activities of any labor organization on the basis of complaint under oath, supported by 20% of the membership in order to determine compliance or noncompliance with the laws and to aid in the prosecution of any violation thereof.
What are Check Offs and Assessments?
It is a method of deducting from an employee’s 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 Art. 292 (a).
What are the requirements for lawful deductions?
Under Art. 113, one of the lawful deductions from employee’s 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.
What is the condition as to the amount of the union dues?
It should be reasonable. Art. 250 prohibits the imposition of excessive or arbitrary fees.
Define Union Dues.
Dues are defined as payments to meet the union’s general and current obligations. The payment must be regular, periodic and uniform.
Define Assessments.
These are payments for a special purpose, especially if required only for a limited time, are regarded as assessments.
What are the three requisites to collect special assessments?
Article 250 speaks of three requisites that must be complied with in order that the special assessment for the Union’s incidental expenses, attorney’s fees and representation expenses may be valid:
1) Authorization by a written resolution of the majority of all the members at the general membership meeting duly called for the purpose;
2) Secretary’s record of the meeting;
3) Individual written authorization for check off duly signed by the employee concerned;
Define agency fees.
Agency fees are equivalent to union dues which a non-union member pays to the union because he benefits from the CBA negotiated by the union.
What are the requisites for the assessments of agency fees?
The requisites are as follows:
- The employee is Part of the bargaining unit;
- He is not a member of the union;
- He partook of the Benefits of the CBA; and
- He is not a member of another Union. (LABOR CODE, Art. 259 (e))
What is the effect of withdrawal of authorizations?
There can be no valid check-offs. The withdrawal of authorizations is equivalent to no authorization at all. Also, disauthorization does not need to be in individual form. As long as the disauthorizations contains signatures of the members, these are valid.
What are the limitations with regard to collection of Union Dues and Special Assessments?
Under Article 250 “ other than for mandatory activities under the Code, “no special assessment, attorney’s 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. “
What is a Mandatory Activity?
A mandatory activity is a judicial process of settling dispute laid down by the law. An amicable settlement entered into by the management and the union is not a mandatory activity under the Code. Moreover, the law explicitly requires the individual written authorization of each employee concerned, to make deduction of attorney’s fees valid.
How about Union Service Fee? Is it a mandatory activity?
Yes. Deductions for union service fee are authorized by law and do not require individual check-off authorizations.
Is “Compulsory Arbitration” a mandatory activity?
No. The benefits awarded to employees formed part of the collective bargaining negotiations and although placed under compulsory arbitration, it is not a mandatory activity under the Code which dispenses with individual written authorizations for check-offs. It is a judicial process of settling disputes laid down by law. Besides, Article 228 (b) does not except a CBA later placed under compulsory arbitration from the ambit of the prohibition. In other words, individual written authorization are needed to deduct from members salary the attorney’s fee for concluding a collective bargaining agreement through compulsory arbitration.
What are the three requisites to collect Special Assessment?
Article 250 speaks of three requisites that must be complied with in order that the special assessment for Union’s incidental expenses, attorney’s fees and representation expenses:
1) Authorization by written resolution of the majority of all the members at the general membership meeting duly called for the purpose;
2) Secretary’s record of the minutes of the meeting; and
3) Individual written authorization for check off duly signed by the employee concerned;
What should be the character of the authorization?
It must proceed from free consent. In a case, the union officers negotiated the CBA, which grants P42 million economic benefits package, required the union members to sign a document embodying: (1) the ratification of the CBA and (2) authorization for the deduction or check off of P4.2 million (from the P42 million package) as payment of attorney’s fees. Such authorization is invalid as it does not conform with Article 250 (n). The authorization, embodied in the ratification of the employer-union memo of agreement, is a vitiated authorization because it could be assumed that the union members felt it difficult to turn down the substantial and lucrative award of P42 million economic package. They had no free choice: they had to sign the ratification which also embodies the authorization for the deduction of union dues and special assessments. Such a situation militated against the legitimacy or genuine consent that should characterize the authorization.
Define check off.
It is a method of deducting by the employer from the employee’s pay at prescribed periods the amounts due to the union for fees, fines or assessments. (A.L. Ammen Transportation vs. Bicol Transportation Employees Mutual Association, G.R. No. L-4941, July 25, 1952)
What is the nature and purpose of check off?
Union dues are the lifeblood of the union. All unions are authorized to collect reasonable membership fees, union dues, assessments and fines and other contributions for labor education and research, mutual death and hospitalization benefits, welfare fund, strike fund and credit and cooperative undertakings. (Art. 292 (a) Labor Code)
What are the requirements for a check off?
“No special assessment, attorney’s fees, registration fees or any other extraordinary fees may be checked off from any amount due to an employee without an individual written authorization duly signed by the employee. “
Are there exceptions to the requirement of acquiring written authorization from the employee before check off?
Yes. A written authorization is not required when the amounts to be checked off are for:
- Mandatory activities; or
- When non-members of the union avail of the benefits of the CBA. (LABOR CODE, Art. 250 (o))
How may non-union members avail of the privileges enjoyed by union members under a collective bargaining agreement?
Non-union members may avail of the privileges by payment of the agency fee. This is an amount, equivalent to union dues, which a non-union member pays to the union because he benefits from the CBA negotiated by the union. Such is an allowable deduction from wage. The collection of agency fees in an amount equivalent to union dues and fees from employees who are not union members is recognized by Article 259 (e) of the Labor Code. (Holy Cross of Davao College, Inc. vs. Holy Cross of Davao College Union KAMAPI, G.R. No. 11007, October 18, 1996)
Is an individual written authorization necessary for the collection of agency fees from a non-union employee?
No. It is not necessary. No requirement of written authorization from the non-union employee is imposed. The employee’s acceptance of benefits resulting from a collective bargaining agreement justifies the deduction of agency fees from his pay and the union’s entitlement thereto. In this aspect, the legal basis of the union’s right to agency fee is neither contractual nor statutory, but quasi-contractual, deriving from the established principle that non-union employees may not unjustly enrich themselves by benefiting from the employment conditions negotiated by the bargaining union. Holy Cross of Davao College, Inc. vs. Holy Cross of Davao College Union KAMAPI, G.R. No. 11007, October 18, 1996)
What are the limitations for check off of Attorney’s fees?
Attorney’s 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.
What is an Agency Fee? Is it an allowable deduction?
Agency fee is an amount, equivalent to a union due, which a non-union 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 employee’s agent. Check-off of agency fee is allowed under Article 259 (e).
The employer failed to deduct union dues and assessment? Is the employer liable to the labor organization the uncollected union dues and assessment?
No provision of law makes the employer directly liable for the payment to the labor organizations of union dues and assessments that the former fails to deduct from its employee’s salaries and wages pursuant to check-off stipulation. The employer’s failure to make the requisite deductions may constitute a violation of the 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.
What is the rationale why employers are not liable for non-deduction of check offs?
Check-Offs in truth imposed an extra burden on the employer in the form of additional administrative and bookkeeping costs. It is a burden assumed by the management at the instance of the union and for its benefit, in order to facilitate the collection of dues necessary for the latter’s life and sustenance. But the obligation to pay union dues and agency fees obviously devolves not upon the employer, but the individual employee. It is a personal obligation not demandable from the employer upon default or refusal of the employee to consent to a check-off. The only obligation of the employer under a check-off is to effect the deduction and remit the collections to the union.
What body has jurisdiction over Check-off disputes?
The Regional Director of DOLE, not the labor arbiter, has jurisdiction over check-off disputes. Under Art. 250 of the Labor Code, the Bureau of Labor Relations has jurisdiction over cases of violations thereof and to mete the appropriate penalty. The complaint of union members against a union resolution checking off 10% of their CBA benefits is not a money claim against the employers, even if the employer is named the respondent. The complaint is against the union over which the labor arbiter has no jurisdiction.
Is the power to assume jurisdiction, constitutional?
Yes. In Union of Filipro Employees et. al. vs. Nestle Phil Inc. et. al. G.R. Nos. 88710-13, December 19, 1990 the continued validity and operation of Articles 278 and 279 of the Labor Code has been recognized by no less than the Congress of the Philippines when the latter enacted into law R.A. 6715, otherwise known as Herrera Law, Section 27 of which amended paragraphs (g) and (i) of Article 263 of the Labor Code. At any rate, it must be noted that Articles [278 (g)] and [279] of the Labor Code has been enacted pursuant to the police power of the State which has been defined as the power inherent in government to enact laws within constitutional limits, to promote the order, safety, health, morals and general welfare of society. The police power, together with the power of eminent domain and the power of taxation, is an inherent power of the government and does not need to be expressly conferred by the constitution.
Can the company continue to make deductions after separation or disaffiliation for the employee from the union?
The employee’s check off authorization, even if declared irrevocable, is good only as long as they remain members of the union concerned because as such members, they were obliged to pay the corresponding due and assessments to their union. However, the moment that they separated from and left the union and joined another labor organization, then they were no longer obliged to pay the said dues and assessments; naturally, there would be no longer any reason or occasion for the company to continue making deductions. (Standard Chartered Bank Employees Union vs. Confesor, G.R. No. 114974, June 16, 2004)
Q: What are additional requirements for federations or national unions?
1) Proof of affiliation of at least ten (10) locals or chapters each of which must be a duly recognized collective bargaining agent in the establishment or industry in which it operates, supporting the registration of such applicant federation or national union; or
2) The names and addresses of the companies where the locals or chapters operate and the list of members in each company involved
How a local chapter is created?
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 the purpose of filing a petition for certification election from the date it was issued a charter certificate.
Is there a required number of membership for registration of a local union?
No. The 20% registration requirement applies only to an independent union. This makes a local chapter registerable even if its initial membership is less than 20 percent of the bargaining unit. Hence, a company can be quickly unionized by a very small number of employees.
What is a Company Union?
It is a labor organization which, in whole or in part is employer-controlled or employer-dominated. Art 259 (d) prohibits being a company union.
What is a National Union/ Federation?
It means any labor organization with at least 10 locals/chapters or affiliates each of which must be a duly certified or recognized collective bargaining agent.
What is an Industry Union?
It means any group of legitimate labor organization operating within identified industry, organized for collective bargaining or for 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, which is duly registered with the Department.
What is Trade Union Center?
It may refer to a group of national unions or federations organized for the mutual aid and protection of its members, for assisting such members in collective bargaining, or for participating in the formulation of social and employment policies, standards and programs.
What is Chartering?
It takes place when a duly registered federation or national union issues a charter to a union in an enterprise and registers the creation of the chapter with the Regional Office where the applicant operates. 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.
What is an Independent Registration?
It is a labor organization operating at the enterprise level that acquired legal personality through independent registration under Art. 234 [now 240] of the Labor Code and Rule III, Section 2-A of these Rules. But an independent union may affiliate with a federation or national union, in which case it may also be called affiliate. An independent union has a legal personality of its own not derived from that of a federation.
What are the requirements of registration of labor organization?
A federation, national union or industry or trade union center or an independent union shall acquire legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor organizations upon issuance of the certificate of registration based on the following requirements:
1) Fifty (P50.00) registration fee;
2) The names of its officers, their addresses, the principal address of the labor organization, the minutes of the organizational meetings and the list of the workers who participated in such meetings;
3) In case the applicant is an independent union, the names of all its members comprising at least twenty percent (20%) of all the employees in the bargaining unit it seeks to operate;
4) If the applicant union has been in existence for one or more years, copies of its annual financial reports; and
5) Four (4) copies of the constitution and by-laws of the applicant union, minutes of its adoption or ratification and the list of the members who participated in it;
