Labor 2 notes_cha mendoza_a2010

• Policy settlement: Specific solutions

~o_November 14_o~
ROLE OF
A211: Statement of Policy Unions
-mirrors Consti provisions [AXIII, Sec.3] State
EE as members of union
WHAT IS IT’S ROLES AND FUNCTION? ER
1. Declares the intent and purpose of Book V
2. Statement in General Terms, not self- REASON BEHIND EXEPTION IN 211B: Law
operating – aid to statutory interpretation subsumes the possibility of litigation between the
parties
MODES OF DISPUTE SETTLEMENT -there are cases when disputes cannot be solved
-CONSTI: Voluntary Mode of Dispute Settlement by voluntary means
-LC: Collective Bargaining and negotiations, -address LABOR UNREST and PRESSING
voluntary arbitration, Mediation, conciliation PROBLEMS IN THE PAST
preferred
METHOD OF DISPUTE SETTLEMENT:
WHY STATE REFERRED VOLUNTARY MODES VOLUNTARY
OF SETTLEMENT (History – Calderon Article) -enhance trade unionism
1. Compulsory Arbitration not effective in RP -de-clogging of courts
2. Promote Labor Union Movement -mutual responsibility, remove over-reliance on
(strengthen Labor Organizations) government (unless provided for under LC)
3. Lessen dockets of NLRC
4. More expedient mode of settlement I. FUNDAMENTAL BASIS: REAL Industrial
Peace should rest on voluntary modes of dispute
*A211a: State says so! So WHAT IS THE REASON settlement
FOR SAYING SO? -product of human behavior
In RE A211B: Exception for General Rule in
A211a: In order to promote voluntary modes of ON EXEPTION: LAW IS REALISTIC: VOLUNTARY
settlement…”EXCEPT as provided under this means may not work in these instances
Code” …minimum wage fixing
…Wage distortion disputes
So A211a: General means of dispute settlement …A263g: Industries indispensable to National
211b: Other means: through courts and agencies Interests (State cannot let failure of voluntary
when provided by LC settlement to affect national Interests)

*Prevent Hostile Relationship between Employees II. ROLE OF UNIONS IN SOCIETY

and Management UNION: Instruments for enhancement of
… But there is already a semi-hostile relations DEMOCRACY and PROMOTE SOCIAL JUSTICE
inherent in the EER… strong, united and FREE
-from intervention of the GOV’t
*Minimize the Government Intervention in -not organized by the ER
Disputes
-mentality of people: let government solve their III. ENLIGHTENED WORKER
problems -aware of his OBLIGATIONS, DUTIES, RIGHTS

WHY ALLOW THE PARTIES TO TALK, NOT LET DOES THE LAW PROVIDE MEANS TO PROVIDE AN
OTHER PARTIES INTERFERE? ELIGHTENED WORKER:
…Compulsory Arbitration used before was not -seminars
effective -training
-payment of dues (A277a)
WHAT IS THE OBJECTIVE? -workers education program (211d)
Problems identified:
• Failure of ERs to recognize Unions >>> IV. ROLE OF THE STATE: 211b
Labor unrest -in cases provided under the LC

- 1 -
 Labor 2 notes_cha mendoza_a2010

~o_November 19_o~ III. WORKER ENLIGHTENMENT

-EE and ER are informed of their rights, duties,
POLICY STATEMENT obligations
WHAT IS THE AREA OF CONCERN/ THRUSTS of -the EE and members of the union should be
the law? informed of their rights and obligations as EEs
[211LC, AXIII, Sec3*] – memorize!!!!!! -Workers Education Program
1) Method of Dispute Settlement -Law authorizes Union to collect fees
2) Trade Unionism
3) Worker Enlightenment IV. “STRONG and UNITED LABOR UNION”
4) Dispute Settlement Before: 1 industry, 1 union
5) Industrial Peace But Labor Mov’t in RP: Fragmented
6) Worker Participation in Decision Making Now: Strong and United Labor Union
7) Wage Fixing + Adequate and Expeditious Machinery for
8) Tripartism providing settlement of disputes (ADEQUATE
ADMINISTRATIVE MACHINERY)
TO WHOM IS IT ADDRESSSED: All parties ---not JUDICIAL. WHY? Admin Agencies are
concerned specialized agencies; proceedings undertaken are
non-adversarial in nature
IS THERE A MESSAGE BEING TRANSMITTED?
V. WORKER PARTICIPATION IN DECISION
I. ON MODE OF DISPUTE SETTELMENT: Voluntary MAKING
primacy of collective bargaining -only in decisions regarding rights, duties,
benefits, and welfare of EEs
RATIONALE: Achieve Industrial Peace -NOT under Management prerogative
-product of human behavior e.g. Manila Electric v. Quisumbing (contracting
-shared responsibility out)
-respect towards each other [A1700, NCC]
1. So When allowable Participation?
*WHY VOLUNTARY? HOW IS HUMAN BEHAVIOR 2. Can Workers say no?
RELATED? VS COMPULSORY MEANS OF DISPUTE 3. What would happen if there’s a dispute?
SETTLEMENT CONSTI: Workers can participate in decisions
affecting their rights and welfare
Voluntary means…not VOLUNTARY LC: Rights, duties and benefits
ARBITRATION! e.g. What if ER imposes a uniform to be worn
by EEs? Could the EE be subjected by the
-Real and lasting Industrial Peace can only be policy protest?
realized through voluntary modes of settlement
(and not by COMPULSORY ARBITRATION) WHERE DO YOU DRAW THE LINE????
-A line must be drawn: management operations:
A211Aa vs A211b EEs CANNOT INTERFERE
A211B recognizes that not all disputes can be -CONDUCT OF BUSINESS: but what if it would
settled voluntarily interfere with their rights, duties, welfare
e.g. national interest
wage rationalization POLICY
wage dispute -statutory interpretation
-implement law depending on INTENT
II. TRADE UNIONISM 1) right of workers to self-organization
Free Trade Unionism 2) method of dispute settlement: VOLUNTARY
-from control of: (1) ER; (2) GOV’T ARBITRATION for industrial peace
3) Adequate administrative machinery: Not
? SO CAN GoVT STILL IMPOSE REGULATIONS ON foreclose judicial intervention (211B)
UNIONS? HOW COULD YOU JUSTIFY THE
INTERVENTION? Police Powers, for general ~0_November21_o~
welfare

- 2 -
 Labor 2 notes_cha mendoza_a2010
DEFINITION in A212 + IR
-use of word “Includes” and “Excludes” just show
scope, NOT MEANING OF THE TERMS
INCLUDES – in a complimentary sense
-deliberate act of the lawmakers
{FEATI UNIV V. BAUTISTA}
-lawmakers deliberately used “MEANS” and
“INCLUDES” (as understood in American
Jurisprudence)
MEANS: define; complete (nothing to be added,
subtracted)
INCLUDES: Complementary to what is the usual
understanding of the terms
e.g. (as used in) ER, EE, LABOR DISPUTES,
LABOR ORGANIZATIONS
[A212e] EMPLOYER:
-“Includes persons who acts in the interest of the
employer”
e.g. SO IS A PARISH PRIEST SPEAKING FOR THE
INTEREST OF A CERTAIN ER AN EE OF THE ER?
Is he included in the definition of an EE?
*the term EE derives its use from English
Common Law notion of OWNERSHIP
*A manager acts in the interest of the ER
[212f] EMPLOYEE:
-”includes any person in the employ of an
employer”
-not limited to an employee of any particular
employer
IS A CONTRACT OF EMPLOYMENT NECESSARY
FOR AN EMPLOYEE TO BE AN EMPLOYEE? No?
-include any individual whose work has ceased as
a result of or in connection with any
…current labor dispute
…or because of any unfair labor practice
…if he has not obtained any other substantially
equivalent and regular employment.
WHAT IF A WORKER, DURING A STRIKE,
OBTAINS A HIGHER PAYING JOB. IS HE STILL AN
EMPLOYEE? HOW DO YOU MEASURE IF THE
SECOND EMPLOYMENT IS “SUBSTANTIALLY
EQUIVALENT AND REGULAR”? IS ITHE MEASURE
PURELY MONETARY?
- 3
212 LABOR ORGANIZATION
-is it similar to a labor association?
NO. A labor association is not for the purpose of
COLLECTIVE BARGAINING and for dealing with
the terms and conditions of work
LABOR ASSOCIATION: mutual aid and protection
and other lawful purposes [IRR]
IS IT REQUIRED to form majority of the workers
in the company? Does it require a minimum
number of workers? What if a labor organization
only represents 10% of the workforce? None.
Law is silent!!!
Collective bargaining vs. Mutual Aid and
Protection
Collective Bargaining: negotiation between labor
and management
Mutual Aid and Protection: Join together for
support
CAN A LABOR ORGANIZATION HAVE PLURALITY
OF PURPOSES? (in re: for collective bargaining)
MAJORITY WORKERS – for certification elections
Exclusive bargaining unit
*Law is silent on the number of the members
that should comprise a labor organization
{AIRLINE PILOT ORG case}
…the intention/ purpose of the org (collective
bargaining) governs over the number
…the test of a labor org is NOT THAT EEs of a
particular ER BUT the PURPOSE “in whole or in
part” collective bargaining
{DUNLOP v S}
…a union cannot exist with mixed membership of
supervisors and rank-and-file employees
Memorize!!!!
ER
EEs
LABOR ORG
LABOR DISPUTES (very specific; type of
controversy: representation, wages, hours of
work)
~O_November 26_O~
LABOR DISPUTE
{SAN MIGUEL CORPORATION EMPLOYEES UNION
V BERSAMIRA} – IC – ER
-
 Labor 2 notes_cha mendoza_a2010
…There can be a labor dispute “notwithstanding
the proximate relationship of an ER and EE
relating to terms, tenure, conditions and
representation”
SO WHAT’S THE REASON BEHIND THE SAID
PHRASE?
-not to limit the dispute to regular EEs
-based on American Labor Law where unions may
be formed not just under a single employer, but
within an industry
A212l
-so if Independent Contractor’s EEs form a labor
union cant there be a labor dispute between the
IC EEs and the ER?
-WHAT IS THE FUNCTION OF THE DEFINITION?
“MEANS” vs “INCLUDES” {FEATI UNIV V
BAUTISTA}
…INCLUDES: complimentary to the popular
meaning of the words
RIGHT OF THE WORKER to SELF-ORGANIZATION
Basis: Constitution
{STANDARD CHARTER V CONFESSOR}
…bill of rights [III, Sec. 6]
…provisions on Labor [XIII, Sec. 3]
Differences of Bill of Rights
1987: Unions, Associations, Societies
1973: Associations and Societies
1935: Associations
RIGHT TO SELF-Organization
-consti and statutorily guaranteed right
*LC
*CSC
*Corporation Code
IN RP CONSTI: More categorical statement
protecting right to self-organization
ABSENT A constitutional recognition, what other
basis can EEs use for self-organization?
***RP is a signatory to the ILO Convention and
Universal Declaration of Human Rights (which
protect right to self-organization)
EXTENT AND SCOPE
A243: SCOPE
CIA employees
Profit, non-profit
- 4
Religious, charitable, medical, educational
A246: Non-abridgment of right to self-organize,
jfa
Mutual aid and protection
*Positive and negative right
{REYES V TRAJANO}
…Right to join includes the right NOT TO JOIN
…basis: explained negative right
…but HOW? Free choice vs government
intervention
…implicit, freedom, noncompulsory
…not contrary to law
{VICTORIANO V ELIZALDE}
…excluded from coverage of closed-shop
agreements are those who are in religious
organizations
SO ELEMENT OF COMPULSION: UNION SECURITY
CLAUSE
When there’s a USC, there’s an element of
compulsion since EE is compelled to join the Rep
Union to maintain security of tenure
A243: SCOPE – is it MATERIAL?
Before: NONPROFIT and Charitable institutions
not included
Why: No element of profit, not commercial
Now: included {FEU v TRAJANO}
…regardless of nature of business
WHY included non-profit institution?
People/workers should still have right to self-
organization
WHY DISTINGUISH GROUP for
LABOR UNION: CB, fja; Regular Employees
LABOR ASSOC: Mutual aid and protection;
Ambulant, intermittent, itinerant, self-employed,
rural workers, without definite employers
LABOR ORG [212l]
-any union/ association of EE
So MUTUAL AID AND PROTECTION
A243
Group 1: self-organization
Fja LO for purposes of COLLECTIVE
BARGAINING
Group 2: Mutual aid and protection
A245: Is it a denial of right to self-organization?
-
 Labor 2 notes_cha mendoza_a2010
NO. Police Power?
-not prohibited from forming labor associations
but prohibited from forming labor unions
*CONFLICT OF INTEREST
-should act in the interest of the employer so if
joined or formed a labor organization for
purposes of collective bargaining
-can form labor organizations for purposes of
mutual aid and protection
CAN SECURITY GUARDS FORM UNIONS?
YES. Before, prohibited. But with EO 111,
prohibition removed. Same right which were
extended to supervisory employees extended to
security guards {MERALCO v. Sec. of Labor}
…why prohibited before: security guards cannot
be placed in position of double loyalty
…in the case, guards were directly hired by
MERALCO; court absolutely silent on
contractorship
…remedy lies with lawmaking bodies
~O_November 28_O~
NATURE OF ENTERPRISE: would it matter?
-organization’s purpose? Whether for profit or
not?
NO. New law expressly provides them right to
self-organization.
ALIENS [A269]
+valid work permit from DOLE SEC
+country must also provide for said right
OLD LAW PROHIBITION: Protect national
security, interest
…is there any means of regulating alien’s rights?
GR: Prohibited
X: National interest
WHY GRANT right to form, join and assist LABOR
ORGS?
ILO Conventions
Consti Rights
Law
HOW PROTECTED?
REASON?
Work permit: protect local workers
Reciprocity: to protect OFWs
SECURITY GUARDS:
- 5
Now, security guards are not prohibited from j, f,
a labor orgs
{MERALCO v SEC OF LABOR}
…EO 111 now declares old law as null and void
…same right extended as supervisors
…on double-loyalty: Go to congress for correct
solution
WHAT LAW WOULD BE VIOLATED IF CONGRESS
WOULD ENACT A LAW PROHIBITING SECURITY
GUARDS FROM FORMING LABOR
ORGANIZATIONS? CONSTI RIGHTS?
Mutual aid and protection: minimum imposed so
as not to violate the rights of workers to form
labor organizations
MANAGERIAL AND CONFIDENTIAL EEs: Why
prohibit?
-managers acts in the interest of employer,
represents interest of ER (would conflict interest)
-but SUPERVISORS also represent interest of the
ER BUT not absolutely prohibited.
WHY CAN’T EXERCISE RIGHT: ACT in interest of
ER, supposed to represent EEs
…can promulgate, decide, managerial policies
… as opposed to supervisors who can recommend
policies but whose decisions are subject to review
of the top managers
…pay to confidential matters re: labor unions,
collective bargaining
WHY GRANT RIGHT TO SUPERVISORS?
-supervisors are EEs in re to their ERs
WHY LIMIT THEM FROM JOINING?
-they directly promulgate policies, so they can’t
pin labor org of rank and file EEs
RATIONALE IN RE MANAGERIAL EEs prohibition
-If they form part of a labor union, they
represent interest of ER, But they also have an
interest to protect (own interest)
MISTAKE OF THE LAW RE SUPERVISORS
-Right granted limited, conflict of interest
between supervisors and rank and file EEs
-if they’re in 1 union, inherent conflict so remove
conflict
WHErE LIES ThE CONFLICT OF INTEREST?
Inherent conflict of interest which lies in their
hierarchy
-
 Labor 2 notes_cha mendoza_a2010
1. CB
-supervisors might just vie for their own interest
2. Strike
-conflict of interest in the part of supervisors may
tolerate
3. Discipline
WHO IS SUPERVISOR? {PEPSI COLA V SEC OF
LABOR}
-decided by nature of the job or the job
description – the job ACTUALLY PERFORMED;
NOT THE NOMENCLATURE
TEST: (1) can lay down managerial policies
(2) not merely clerical or routinary
(3) exercise independent judgment
(4) EFFECTIVE daw…
WHAT DOES THE WORKER ACTUALLY DO? IS
POWER PRESENT? IS IT EFFECTIVE?
If power present, but not effective then not
supervisor. How to determine if power effective?
TEST OF EFFECTIVENESS: If subject to approval/
review of higher authorities, not supervisors?
>NO. A412m “effectively” recommends…
It’s not what ERs say it is, but what EE actually
does
So:
POWER + EFFECTIVE = SUPERVISOR
POWER – EFFECTIVE = NOT SUPERVISOR
EFFECTIVE: SUBJECT TO REVIEW
Should “EFFECTIVELY” be removed?
~0_December 3_0~
AMENDMENTS to BoOK V: READ
SUPERVISOR
-“Effectively” recommends
Read {PAPER INDUSTRIES V LAGUESMA}
-have POWER + EFFECTIVE
-{PEPSI COLA V SEC OF LABOR} lowest in the
hierarchy of managers
WHAT WOULD HAPPEN IF “EFFECTIVELY” WOULD
BE REMOVED: with word “EFFECTIVE” opinions of
supervisors are not subject to review
FOREMAN: SUPERVISOR?
NO. {PENARANDA V BANGAGA}
- 6
[A212m] MANAGER
1) management of business
2) direct work
3) hire and fire
OBJECTIVE IN DETERMINING WON SUPERVISOR
OR NOT: Protect right to join, form, assist labor
organizations
CONFIDENTIAL EEs
-Not mentioned in the Labor Code
-prohibited from joining labor organizations
implicitly
-has access to confidential information regarding
LABOR RELATIONS
{SAN MIGUEL CORP SUPERVISORS V
LAGUESMA}
1) assist or act in a confidential capacity
2) formulate, determine, effectuate mgt
policies in the field of labor relations
3) necessary: EE’s need to use the Labor
Relations Info
e.g. driver of CEO who hears conversation of
boss which are confidential in nature –
confidential if have access to labor relations info
– is the driver a confidential EE?
>NO. not necessarily confidential information
regarding labor relations
ACCESS TEST: Have access to confidential
information regarding LABOR RELATIONS
1) basis of access: DIRECT (Act in a
confidential capacity, FDE – formulate,
determine, effectuate management
policies in the field of labor relations) or
INDIRECT (Assist in a confidential
capacity)
2) what is the access subject
3) NATURE of the subject accessible: Labor
relations
ELEMENTS
1) NATURE: Why confidential: acts or assist,
formulate, determine and effectuate
management policies
2) INFO: Labor Management relations
3) Integral parts of the job, NOT MERELY
INCIDENTAL
RATIO: To prohibit confidential EEs from using
confidential information:
…conflict of interest
…1 sided: for EEs only
-
 Labor 2 notes_cha mendoza_a2010
COOPERATIVE EEs
-also restricted from joining labor organizations
GR: MEMBERS OF COOPERATIVES who are also
co-owners of the cooperatives are prohibited
from forming Labor organizations FOR THE
PURPOSE of collective bargaining because an ER
cannot bargain with himself
X: HOWEVER, members of the cooperative are
not prohibited from LEAVING the cooperative to
form a labor organization for purposes of
collective bargaining BECAUSE membership in
the cooperative is voluntary.
1) An EE + Member of COOP: Can j, a, f
a. fact of ownership, not employment, which is
the basis of prohibition
b. can resign from COOP provided no restrictions
2) An EE – Member of COOP: can j, a, f
IF EE + COOP mem wants to resign from COOP,
can ER restrict right to resign?
GR: As long as there is no prohibition, right is
absolute
X: if there is a restriction, procedure for resigning
valid, should comply with the rules
WHAT IF STOCKHOLDER + EE, would the same
rule follow?
>NO! {RURAL BANK OF DAVAO CASE} different
natures
COOP vs CORP
Purpose
Service profit
Ownership
1 share many shares
*But nowhere in the law is it stated that when a
labor organization is NOT Registered, it is
illegitimate!
{PAFLU V SEC OF LABOR}
…valid exercise of POLICE POWER
1. registration requirement –
condition sine quo non to acquire: (a)
legal character; (b) rights and privileges…
which are not constitutional rights but
merely statutory
…UNIONS CAN EXIST with or without Labor
orgs….but to acquire statutory rights and
privileges + legal character only upon
registration
2. Protective device argument:
{PROGRESSIVE DEVT CORP V LAGUESMA}:
protect labor from organizations which are
not really representatives of labor
3. Police power
COMPANY UNION [212i]
-formation, function or administration has been
assisted by any act defined as ULP – company
supported!
Vs FRIENDLY UNION [not defined in LC!]
Vs UNDERSTANDING UNION (Pauso lang si sir!)
*Why these unions are prohibited: They cannot
represent the interests of the EEs in Collective
Bargaining
WHAT IF the union has never bargained with the
ER? Is it a company union? Is it a labor
organization?

~O_December 5_O~ WHAT IF UNION ACCEPTS members/ EEs of other

ERs?
LABOR ORG [212g] vs WORKER’s ASSOC[IRR] >>>STILL a labor union. {AIRLINE PILOTS
-collective bargaining -mutual aid and ASSOC OF PHIL V CIR}: focus on the PURPOSE
protection OF THE UNION , not on the ER

WHAT IF FOR ECON DEV’t WHAT IF union includes supervisory EEs?

Labor union registered in SEC, not in DOLE
– is it still a Labor Org?
>>>YES. But not a legitimate labor org accdg to
[A212h] which provides: “Legitimate Labor
organization” means any labor organization DULY
REGISTERED WITH THE DOLE, and includes any
branch or local thereof.
>>>NOT A labor organization. Expressly
prohibited under A243
[A234]
-recognizes federations, national unions
-if APPLICANT IS AN AFFILIATE: RA 9481
[A237] – is it repealed?

- 7 -
 Labor 2 notes_cha mendoza_a2010
>>>NO! It just provides ADDITIONAL
requirements for Federations or National Unions If BY-LAWS are silent, CAN UNION IMPOSE
when they are applying for registration PENALTY FOR ITS MEMBERS?
Read {VILLAR V. INCIONG}
BOOK OF ACCOUNTS
{PROGRESSIVE DEV’T CORP V LAGUESMA} ~O_December 12?_O~
…USED DO-09 which required submission of book
of accounts, regardless if just a new union AFFILIATION AND DISAFFILIATION
{PAGPALAIN HAULERS V TRAJANO} 1) Rand and File + Supervisiors can now affiliate
…USED DO-40-03 which removed the with same labor Federation?
requirement of the submission of Book of YES. {ATLAS LITHOGRAPHIC SERVICES V
Accounts IF LESS THAN 1 YEAR ORGANIZED LAGUESMA} TEST for validity of Supervisors
…RATIO for submission of book of accounts: Union and EEs union joining in same FED
prevention of fraud, minimize risk of fraud and a. rank and file EEs directly under the
diversion in handling union funds to protect authority of the Supervisory EEs
financial integrity of labor organizations b. national fed ACTIVELY INVOLVED in union
activities in the company
WHICH IS BETTER? 2) Affiliates still have individuality
3) Affiliates can enter own contracts
*there are accounting mechanisms built in the LC 4) If state affiliation, just say affiliation
5) Right to disaffiliate – procedure to be followed
BALANCE SHEET: Financial Reports
Vs UNION SECURITY
ASSETS AND LIABILITY SHEETS: Book of Access to Post Termination
Accounts labor market employment
CLOSED SHOP Membership Retain Could
required, membership terminate if
*SO Book of Accounts ≠ Financial reports! only hire not member
members provided
[A241] require to keep book of accounts for UNION SHOP Open – no due process
membership observed
RECORDING PURPOSES requirement
…so {PAGPALAIN V TRAJANO}, even if MAINTENANCE Free access If join union,
submission of book of accounts not required maintain
anymore, LC still provides accounting membership
mechanisms
Termination for NON-AFFILIATION – UNION
~o_December 10_o~ SECURITY

HOW DO YOU TEST IF ACTS OF LABOR UNIONS ER bound to accord DUE PROCESS even if UNION
ARE IN ACCORDANCE WITH LAW? 1) stipulates ER free from liability
…day to day governance of union 2) threat for strikes
…through union by-laws, consti

WHAT IF THE BY-LAWS IMPOSE THE FF ~O_JANUARY 7_O~

REQUIREMENTS:
1) must be an EE for more than 1 yr – valid daw
sabi ni sir. But [A277c] provides that an EE would
be eligible to join a labor organization from 1st
day of work
2) must be of good moral character – [A241f – if
would occupy a position in the union]
3) must be a regular EE – only regular EEs are
considered to have the right to organize [243?]
IS THE RULE VALID? YES, if in accordance with
LC
- 8
APPROPRIATE BARGAINING UNIT
-abstract proposition, NOT REALLY DEFINED BY
LAW! [A255] only provides for the EBR
-ROTHENBERG definition, test applied
{UP V CALLEJA}
-faculty: belong to the rank-and-file EEs
ROTHENBERG (definition of ABU):
1. group of EEs of a given employer
2. composed of ALL or LESS THAN ALL the
entire body of EEs which the collective
interest of ALL The employees
-
 Labor 2 notes_cha mendoza_a2010
3. consent with equity of the ER
4. indicate to be best suited to serve
RECIPROCAL RIGHTS AND DUTIES of the
parties under the Collective Bargaining
Provisions of the law
e.g. SM – different branches
1 ABU for all the branches or 1 ABU for EACH
branch?
ROTHENBERG TEST
1. will of parties
2. affinity and unity of EE’s interest and
Community of Mutuality of interests
3. prior collective bargaining history
4. employment status
COMMON INTEREST TEST
-wages
-hours of work
-terms and conditions of employment
…WHY? These are what the EEs want
WHY USE TEST?
• these common interests bind the EEs:
They share common wages, hrs of work,
terms of employment, then they would
want to bargain for their own ABU
BARGAINING UNIT
1) electoral unit
a. identifies area
b. who will vote
2) sovereign unit
…1 ABU for a given period of time
3) economic function
…determines and identifies beneficiaries of
the CBA (unless part of unit, can’t claim
benefits of CBA for the ABU)
{UP V CALLEJA} read original!
…ROTHENBERG TEST applied
…Narvasa: group workers with same terms and
conditions of employment (wages, hours of work,
terms and conditions of employment)
…why group workers: STRENGTHENING OF
BARGAINING POWER OF LABOR UNION?
>>>maximum enjoyment and use of rights
under law
WILL OF EEs (GLOBE DOCTRINE)
{KAPISANAN NG MGA MANGGAGAWA NG MRR V
YARD CREW UNION}
PRECONDITIONS:
- 9
1) highly skilled/ technical skills
2) same terms and conditions, nature of job
3) will of EEs to form a separate bargaining
unit through a plebiscite
4) there is an existing bargaining unit
covering different potential bargaining
units
{MECHANICAL DEPARTMENT V CIR}
…HISTORY: 2 track stations, one in tutuban
where light maintenance was performed, and one
in Caloocan where heavy maintenance was
performed. But only 1 union (1 ABU) represents
the EEs of both track station so the EEs of the
Caloocan station want to disaffiliate from the
main union and form their own ABU
H:
1) all things being equal, they have common
interest (assume commonality of interest)
so 1 ABU
2) BUT they are not equal + WILL OF EEs to
form a separate ABU: allow them to have
separate ABU!
CAN PARTIES AGREE ON WHO WOULD COMPOSE
THE ABU OR SHOULD A 3P (COURT) DETERMINE
THE ABU?
>>>Voluntary settlement
1. if parties agree then there’s no need for
voluntary settlement
2. if not, resort to voluntary settlement
PERMANENT BARGAINING UNIT: DOES IT EXIST?
>>>NO. previous CBA would not bind future
bargaining units.
{DLSU V DLSU Employees Assoc}
…prior CBA where some EEs not included in the
ABU does not bar any renegotiation for the future
inclusion of EEs in the ABU. During the freedom
period, the parties may not only (a) renew CBA,
but may also (b) propose and discuss
modifications and amendments to ABU
{SMC V SMC UNION}
…changes in the composition of the ABU –
changes in number of EEs – does not affect
immediate conduct of CE.
~O_January 9_O~
• don’t laugh, don’t show any facial reaction
when reciting!
EER - CE
-EER needs to exist before CE
-
 Labor 2 notes_cha mendoza_a2010
-EER > DUTY to bargain > CE …CE most effective and most democratic method
of determining which LO can fully represent the
{ALLIED FREE WORKERS V COMPANIA working force in the ABU of a company
MARITIMA}
…in this case, the alleged union only had a +
contract of lease of services with the company, {COLGATE PALMOLIVE V OPLE}
but wanted to hold CE in the company …ruled that Sec of Labor cannot directly certify a
H: Only when there is an EER is there a duty to LO as the EBR of an ABU. Provisions in the LC
bargain. If no duty to bargain, then there is no which aid in ascertaining majority representation
need to have a CE to determine the bargaining are calculated to ensure that the certified BR is
representative (BR) for the ABU the true CHOICE OF THE EEs AGAINST ALL
CONTENDERS.
PROCESSES AVAILABLE TO DETERMINE …If Direct Certification allowed, the intendment
MAJORITY STATUS or purpose of the law will lose its meaning as the
1) CE [256, 257] law is disregarded
2) Consent elections [IRR]
3) CE initiated by ER [258] +
4) Voluntary recognition – provided only 1 {GEORGE & PETER LINES V ALU}
Labor Org in the ABU -even if only 1 LO in the ABU, still cannot resort
to DIRECT CERTIFICATION, FREEDOM OF
CONSENT ELECTIONS V CERTIFICATE CHOICE BY THE EE being primordial
ELECTIONS consideration, statutory policy should not be
{WARREN MANUFACTURING V BLR} circumvented
CE Consent Elec
Directed by BLR, by Voluntarily agreed upon …BUT in DO-40-03, VOLUNTARY RECOGNITION
operation of law OF THE ER allowed!
Exclusive and sole BR Determine majority
for ABU status *SIR:
Could negotiate for No effect on CBA, just 1) freedom of choice has to be preserved
CBA determine who would 2) absent EER, no duty to bargain, no need to
implement CBA in force make use of the process of CE
3) CE statutory policy that cannot be
*BUT DO-40-03 provides that NO CE could be circumvented
held 1 year after a Consent Election…so does this 4) Secrecy of the process must at all times be
mean that the winner in the consent election is preserved through CE
also the BR for the ABU?
ON CONSENT ELECTIONS [RULE VIII, Sec 23,
VOLUNTARY RECOGNITION IRR]
-granted by law [DO-40-03] to ER -holding of Consent Elections a bar to the holding
-only when 1 LO in the ABU of CE for 1 year
-reported to BLR – notice of VOLUNTARY -{Warren Manufacturing} still good law: provides
RECOGNITION that even after Consent elections, CE could still
be held – but it was decided at the time when no
…REQUIREMENTS: Consent Elections yet and Consent elections was
1) legitimate LO conducted there to put an end to the war
2) only 1 LO in the Abu between the competing unions
3) submission of documents -CONSENT ELECTIONS is a means of encouraging
company unions
but
CERTIFICATION ELECTIONS
{SAMAHANG MANGGAGAWA SA PREMEX V SEC -not adversarial, not litigation: purely
OF LABOR} inquisitorial, the PURPOSE IS TO DETERMINE THE
…held that company did not have the power to WILL OF THE EE if they want a bargaining rep or
declare the union the EBR of the ABU not and if they want to, who would represent
…EO 111 discontinued Direct Certification them

- 10 -
 Labor 2 notes_cha mendoza_a2010
WHY NOT LITIGATION?
{YOUNG MEN LABOR UNION V CIR}
…CE proceedings are
*investigatory in nature
*OBJECT: not the decision of any alleged
commission of wrong nor asserted deprivation of
right of EEs in selection of BR
*Does not entail entry of remedial orders,
redress of rights BUT CULMINATION SOLELY IN
THE OFFICIAL DESIGNATION OF BU and
AFFIRMATION of EEs express choice of BR
…in short: no right asserted that was violated
which require remedial orders
IS THE CERTIFICATION ELECTION ONLY THE
CONCERN OF THE EEs?
YES. ER stranger in the elections.
{NOTRE DAME V LAGUESMA}
…Employers are strangers to these proceedings.
They are forbidden from influencing or hampering
the employees’ rights under the law. They
should not in any way affect, much less stay, the
holding of a certification election by the mere
convenience of filing an appeal with the labor
secretary. To allow them to do so would do
violence to the letter and spirit of welfare
legislations intended to protect labor and to
promote social justice.
~O_January 14_O~
CERTIFICATION ELECTIONS
[A256] v [A257]
organized unorganized
w/n 60 days When to file none
before end of CBA
25% Substantial none
support
requirement
Why is it easier to hold CE in unorganized
establishments?
-to encourage unionism, representation of parties
WHY NO SUBSTANTIAL SUPPORT REQUIREMENT?
• In an ORGNIZED ESTABLISHMENT, a CE is
held when a LO contests the majority
status of an Incumbent BR so it is
required to show that a substantial
number of EEs want the change of their
BR. In an UNORGANIZED
- 11
ESTABLISHMENT, there is nothing to
contest, there being no BR.
ON VOLUNTARY RECOGNITION: IS it prohibited
in LC? NO. Even provided in Amended IRR
SUBSTANTIAL SUPPORT
1) can’t be questioned by competing union
{TODAY’S KNITTING FREE WORKERS UNION V
NORIEL}
2) subsequent withdrawal of some members
doesn’t affect substantial support if withdrawal
does not affect the 25% requirement {TAGAYTAY
HIGHLANDS V TAGAYTAY HIGHLANDS UNION}
DISCRETIONARY RULE
Re: substantial support requirement
-discretion of med-arbiter to order CE even if
25% substantial support not yet shown as long
as a petition is filed
{AIRTIME SPECIALIST INC V BLR}
…the objectives of Industrial Peace Act would
sooner be attained if at the earliest opportunity,
the EEs in an ABU be pooled to determine which
LO should be its EBR.
{WESTERN AGUSAN WORKERS UNION V
TRAJANO}
…it has long been settled that the policy of the LC
is indisputably partial to the holding of a
certification election so as to arrive in a manner
definitive and certain concerning the choice of the
labor organization to represent the workers in a
collective bargaining unit.
SO WHY NOT JUST REMOVE THE SUBSTANTIAL
SUPPORT REQUIREMENT???
SUMMARY:
*IF all requirements present: Mandatory CE
*IF lack substantial support: may still order CE
ER: A total stranger in CE
WHY? CE is for the determination of the choice of
the EE of who would be the EBR for the ABU {see
NOTRE DAME} – can’t influence of hamper
employees’ rights
[A258-A, provided by amendment of RA 9481]
-expressly limited ER’s participation in the CE to:
1) being notified
2) providing list of employees in pre-election
conference
-
 Labor 2 notes_cha mendoza_a2010
DOES THE PETITION FOR CANCELLATION OF d. run-off elections
CERTIFICATE OF REGISTRATION AFFECT CE?
• NO EFFECT. CE should still be held. The SUSPENSION
pending petition for cancellation would not -pending case of ULP questioning status of LO
stay the holding of a CE – haha. Check (company union) based on [248d]
with suspension v bar discussion
…depends on who filed the petition for
~O_January 21_O~
cancellation! suspension v bar
[A248d] ULP- ER grounds 1. contract bar
WHAT IF PENDING PETITION FOR CE, PETITION dominated union rule
FOR CANCELLATION GRANTED, WOULD CE BE 2. 1-yr bar
3. deadlock
HELD? Just suspends Effect on ce prohibited
Promote right to purpose Industrial peace
IF CERTIFICATIO CANCELLED: cannot run in CE collective and stability in
bargaining, protect general
from ER
~O_January 16_O~ domination

BAR V SUSPENSION WHY LAW CONCERNED ON CE NEGOTIOATIONS

RATIONALE BEHIND SUSPENSION OF
CERTIFICATION ELECTION
-when result of CE would be rendered nugatory
-248d:company-dominated union – status of
union that would compete as a BR in question –
as questioned by EE {UNITED CMC V BLR}
ARE ALL THE GROUNDS IN 248 GROUND FOR
SUSPENSION OF HOLDING CE?
>>NO. only [248d]
>>the other grounds for ULP does not affect the
status of the LO (interference of ER in the Labor
Union’s affairs)
• if the ER interfere with the right of the EEs
to form, join, organize – actually form,
function, administration, - LO would affect
the reps
WHY SUSPEND THE ELECTION
• election suspended (when union contested
validity of status of a LO) because a
company-union which would represent an
ABU would render right of EE to be
represented in CB nugatory!
…if a company dominated union would be voted,
it may be de-certified, rendering the CE nugatory
Grounds
BAR
1) CBA existing
2) Deadlock
3) 1-year bar (after):
a. voluntary recognition
b. certification elections
c. consent election
- 12
FREE FROM ER INTERVENTION?
1. to preserve the will of EEs and preserve
integrity of the process of COLLECTIVE
BARGAINING
2. Union certified would be de-certified
PREJUDICIAL QUESTION: WON ER helps,
interferes with association/ organization of labor
Organization [248d]
*WHAT IF ER loans money to Labor Union, is it
company interference?
HOW DO YOU TEST IF A UNION IS COMPANY
DOMINATED? IS THERE A LEGAL TEST?
-If ER interfered in formation, function and
administration [212i] of the LO
*WHO CAN INVOKE SUSPENSION? Only the
LABOR UNION WHO FILED COMPLAINT FOR ULP
can invoke the “prejudicial question”
- real parties in interest: The Labor union which
filed the ULP case is the union who stands to lose
if the ER-dominated union competes in the CE
WHAT IF the LABOR UNIONS WHICH FILED
COMPLAINT FOR ULP, DID NOT FILE FOR
SUSPENSION OF CE, what is the legal
implication?
>>>Silence of the party union shows its
confidence that it could win against he company-
dominated union in not filing for suspension of
CE, so it applies to the other unions which did not
file for ULP
-
 Labor 2 notes_cha mendoza_a2010
IF It IS FOUND THAT THE ER-DOMINTED UNION weapons weapons, or else
IS INDEED SO, CAN THE ER FILE AN APPEAL? ULP for refusal to
CAN THE ER FILE FOR SUSPENSION OF CE? bargain
• NO? the union should be the one filing!
LAW ON COLLECTIVE BARGAINING
BARS FOR CE 1. Procedure: provided in [A250-
251], read in light of [233]
1-YR BAR RULE 2. [252] standard of behavior in CB
-start from Valid CE – results of CE CERTIFIED negotiations and during lifetime of
WHAT IF THERE’S AN APPEAL, when would 1yr CB
start? Still from the certification of the CE Results 3. [253] uniform period/term for CBA
*CBA is an exchange relationship
CONTRACT BAR RULE
-should be registered {PHILAM MANAGEMENT v PHILAM MANAGEMENT
-should be whole and complete: what is usually EMPLOYEES ASSOC}
found in the CBA is there …cannot negotiate minimum wage in CBA: can
negotiate wages UPWARDS, not downwards
WHY REGISTER CBA?
IF NOT REGISTERED, IS IT A BAR? NO. if not CAN COUNSEL GIVE LEGAL OPINION THAT IF AN
registered, has no legal effect and not binding. ISSUe IS PERMISSIVE, THE ER CAN REFUSE TO
CBA registered fro monitoring purposes NEGOTIATE IT?
• YES. {SAMAHANG MANGGAGAWA SA
[A232] does the law require that the CBA be TOPFORM V NLRC}
registered? Not under this provision but under
[A231] ON [253]
CBA EXPIRED – is it still in full force and effect?
PURPOSE OF CONTRACT BAR RULE >>>YES. As a whole, until NEW CBA agreed
-stability upon. {MERALCO V QUISUMBING}

DEADLOCK BAR CAN A SIGNATORY UNION REMAIN SILENT,

{DIVINE WORD UNIVERSITY V SEC OF LABOR} WHEN IT HAS LOS ITS MAJORITY SUPPORT,
…DEADLOCK: reasonable effort at good faith REGARDING THE CBA’S FORCE AND EFFECT?
bargaining which, despite noble intentions, does WHAT IF NO CE?
not conclude in agreement between parties • If no CBA yet, old CBA still in full force
and effect
~O_January 23_O~ • NO GAP: Status quo observed,
adjudicatory reward
MANDATORY v NONMANDATORY
ANG TANONG:
*distinction not provided by law but by THE BR WHO NEGOTIATED THE CBA HAS LOST
JURISPRUDENCE ITS MAJORITY STATUS BUT NO CE HAS BEEN
HELD, NO NEW CBA NEGOTIATED. SINCE NO
Mandatory Nonmandatory NEW CBA, THE OLD CBA IS STILL IN FULL FORCE
Hrs of work No relation between AND EFFECT. HOWEVER, THERE IS NO BR WHO
Wages nature of work and WOULD IMPLEMENT THE CBA. WHO WOULD NOW
Other terms and proposal: should IMPLEMENT THE CBA IN FORCE AND EFFECT,
conditions have nexus to the THE OLD BR WHO LOST ITS MAJORITY STATUS?
Including proposals terms and
for adjusting any conditions of WORK READ {RIVERA V ESPIRITU}
grievances …suspension of CBA for 10 years
[A252] …did union gave up term under A253-A or not?
Allowed to reach Allowed to reach …since PAL is now making money, could the
deadlock deadlock Labor union now ask for the reversal of the
ALLOWED to resort Not allowed to decision?
to economic resort to economic

- 13 -