QUICK REVIEW OF LABOR RELATIONS (LABOR LAWS) QUESTIONS AND ANSWERS

1. The employees have the right to participate in policy and decision making in companies where they are employed. Describe its scope and limitations.

· ART 267 of LC. The right of the employees of the employees to participate in policy and decision making is confined only to processes that directly affect their rights, benefits, and welfare. It does not extend to matters pertaining to:

 

1.  business operations or management of the business;

2.  provisions of the collective bargaining agreement;

3.  or traditional areas of collective bargaining.

2. A new Company wanted to come up with a Code of Discipline. The company union demanded that they given the chance to review and discuss the contentious provisions. The company ignored the union and released its own version of the Code of Discipline.  Is the company correct?

· No, as held in the case of Philippine Airlines, Inc. v. NLRC, the Company should share with the union or its employees its prerogative of formulating the code of discipline, because the provisions of the code of discipline clearly have repercussions on the employees’ right to security of tenure.

3. Among the 4 Criteria for Fixing the Appropriate Bargaining Unit, which criteria is common in Philippine setting? Cite a Supreme Court case applying those criteria.

· The criterion that is common is the Similarity of Employment Status Rule. Under this rule, the main consideration in fixing the appropriate collective bargaining unit is the status of employment. The rule requires that non-regular employee be treated separately from regular employees.

This criterion was applied in the case of PLASLU v. CIR which the court held that the challenged voters were non regular employees, they cannot be considered to have such mutuality of interest as to justify their inclusion in a bargaining unit composed of regular employees.

4. What are the 2 means to become a Collective Bargaining Agent?

1.  Through SEBA (Sole and Exclusive Bargaining Agent)

2.  Through Certification Election (including consent election and run-off election)

5. There are 100 employees of a newly established company. 10 employees filed for a certification election. The DOLE issued an Order granting the conduct of a certification election. Can the Company appeal the Order?  On the other hand, if the DOLE dismissed the Petition, can the 10 employees file an Appeal?

· In unorganized establishment, an Order granting the conduct of a certification election is not appealable. Any issue arising therefrom may be raised by means of protest on the conduct and results of the Certification election.

However, an Order dismissing the petition is appealable to the Office of the Secretary of Labor and Employment within 10 days from receipt thereof.

6.  When to file a Petition for Certification Election in Organized Establishments?

· During the freedom period. 60 days prior to the expiration of the CBA

7. What are the 8 grounds to file your Motion to Dismiss the petition for Certification Election?

1.  Lack of EE Between the company and the members of petitioning union

2.  Lack of legitimacy on the part of the petitioning union

3.  Lack of written consent of 25% of the employees within the bargaining unit

4.  The bargaining sought to be represented is not an appropriate bargaining unit

5.  The petition was filed within 1 year from issuance of SEBA Certification or from actual valid certification election, consent election or run-off election

6.  The petition is barred by the duly registered CBA,  by the ongoing CBA Nego commenced within 1 yr from certification as bargaining agent; or by the bargaining deadlock which is under conciliation, arbitration, or the subject of a valid notice of strike or lockout

7.  Failure of local chapter or federation to submit the charter certificate upon filing of the petition

8.  Failure of petitioner to appear for 2 consecutive scheduled conferences before the Med-Arbiter despite notice

8. Just Enumerate at Least 5 modes of determining the sole and exclusive bargaining agent?

1.  Voluntary Recognition

2.  Certification election

3.  Consent election

4.  Run-off election

5.  Re-run election

9.     a. Define unfair Labor Practice

·  ULP refers to those acts listed in Articles 259 and 260 of the Labor Code

  b. Give three (3) examples of unfair labor practices on the part of the employer and three (3) examples of unfair labor practices on the part of the labor union.

  ER:

1.  Interfere with, restrain or coerce employees in the exercise of their right to self organization

2.  Requiring an employee not to join a union or resign from the union

3. Contracting out services or functions being performed by union members

  EE:

1.  Restraining or coercing employees in the exercise of their right to s.o

2.  Causing an employer to discriminate against an employee

3.  Violation of duty to bargain collectively

10. KESO ICE CREAM just ignored the proposals of the bargaining unit. Union got furious. They filed a case at SC. Pls give your legal advice.

· Refusal of the employer to give counter proposal is a violation of his duty to bargain and thus constitutes unfair labor practice. Proposals and counter proposals are necessary and mandatory in negotiations.

· Although the union has cause of action against the employer, it cannot immediately resort that matter to SC, they can conduct strike on the basis of ULP instead.

11. The modes of determining an exclusive bargaining agreement are: voluntary recognition; certification election and consent election. Explain briefly how they differ from one another.

· Voluntary Recognition refers to the process by which a legitimate labor union is voluntarily recognized by the employer as the exclusive bargaining representative or agent in a bargaining unit and reported as such with the Regional Office in accordance with the Rules to Implement the Labor Code. It is proper only in cases where there is only one legitimate labor organization existing and operating in a bargaining unit.

· Certification election refers to the process of determining through secret ballot the sole and exclusive bargaining agent of the employees in an appropriate bargaining unit for purposes of collective bargaining or negotiations. Certification election is one which is ordered by the DOLE.

· Consent election is one mutually agreed upon by the parties, with or without the intervention of the DOLE, its purpose being merely to determine the issue of majority representation of all the workers in an appropriate collective bargaining unit.

12. Arnold Clavio organized a union in GMA 7 which has 200 employees. He immediately filed a Petition for Certification Election, attaching thereto the signatures of 70 employees. GMA 7 vehemently opposed the petition, alleging that 25 signatories are probationary employees, while 5 are supervisors. It submitted the contracts of the 25 probationary employees and the job description of the supervisors. It argued that if 30 is deducted from 70, it gives a balance of 40 valid signatures which is way below the minimum number of 50 signatories needed to meet the alleged 25% requirement. If you are the Director of Labor Relations, will you approve the holding of a Certification Election? Explain your answer. (BAR 2016)

Suggested Answer:

· Yes, I will allow the certification election. What is required for a certification election is that at least 25 per cent of the bargaining unit must sign the petition. Since 25 percent of 200 is 50 then the fact that there were 70 signatories who signed means that it should be allowed. Note that out of the 70 signatories only the supervisors should be excluded. Article 254 of the Labor Code allows supervisory employees to form, join, or assist separate labor organizations but they are not eligible for membership in a Labor organization of the rank-and-file. Thus, they are the only ones that should be disqualified. As to the probationary employees, they should be included. The fact that an employee is given a classification such  as  beginner, trainee,  or   probationary   employee,  and  the  fact   that contemplation of permanent tenure is subject to satisfactory completion of an initial trial period, are insufficient to warrant such employees' exclusion from a bargaining unit. Moreover the eligibility of probationary employees does not turn on the proportion of such employee who, willingly or not, fails to continue to work for the employer throughout the trial period.

Alternative Answer:

· Yes, I will allow the certification election. Following the Bystander Rule, the role of the employer in certification elections is that of a mere bystander; it has no right or material interest to assail the certification election. Thus, its opposition to the certification election must not be given credence.

The only exception to this rule is where the employer has to file the petition for certification election pursuant to Article 270 of the Labor Code because it was requested to bargain collectively; such exception does not apply in this case.

13. Aguila Glass had 600 rank-and-file employees. Three rival unions – A, B, and C participated in the certification elections ordered by the Med-Arbiter. 500 employees voted. The unions obtained the following votes: A-200; B-150; C-50; 90 employees voted “no union”; and 10 were segregated votes. Out of the segregated votes, four (4) were cast by probationary employees and six (6) were cast by dismissed employees whose respective cases are still on appeal.

(A) Should the votes of the probationary and dismissed employees be counted in the total votes cast for the purpose of determining the winning labor union?

Suggested Answer: (2014 Bar)

Yes. Rule IX, Section 5 of DOLE Department Order 40-03 provides that “[a]ll employees who are members of the appropriate bargaining unit sought to be represented by the petitioner at the time of the issuance of the order granting the conduct of a certification election shall be eligible to vote. An employee who has been dismissed from work but has contested the legality of the dismissal in a forum of appropriate jurisdiction at the time of the issuance of the order for the conduct of a certification election shall be considered a qualified voter, unless his/her dismissal was declared valid in a final judgment at the time of the conduct of the certification election.”

(B) Was there a valid election?

Suggested Answer:

Yes. To have a valid election, at least a majority of all eligible voters in the unit must have cast their votes (Article 256, now Article 266, of the Labor Code). In the instant case, 500 out of 600 rank-and-file employees voted.

(C) Should Union A be declared the winner?

Suggested Answer:

No. The Labor Code provides that the Labor Union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit (Article 256, now Article 266, of the Labor Code). Here, the number of valid votes cast is 490; thus, the winning union should receive at least 246 votes. Union A only received 200 votes.

(D) Suppose the election is declared invalid, which of the contending unions should represent the rank-and-file employees?

Suggested Answer:

None of the participating unions can represent the rank-and-file employees for purposes of collective bargaining because none of them enjoys majority representative status. (Article 255, now Article 265, of the Labor Code).

(E) Suppose that in the election, the unions obtained the following votes: A-250; B-150; C-50; 40 voted “no union”; and 10 were segregated votes. Should Union A be certified as the bargaining representative?

Suggested Answer:

Yes. The Labor Code provides that the Labor Union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit (Article 256, now Article 266, of the Labor Code). Here, the number of valid votes cast is 490. Thus, the winning union should receive at least 246 votes; Union A received 250 votes.

14. Leave credits in the CBA total to 30 days. New Owner requested the union to reduce the leave credits to just 25 days due to low sales. Can the parties agree?

· Yes, provided that re-negotiation of all provisions other than the representation aspect of the CBA should be made after first 3 years from effectivity.

Considering that the 5 year period is quite long during which the economic situations of the parties may have already changed, Art. 253-A recognizes the need for the parties to re-assess and re-negotiate all the provisions of the CBA, except its representation aspect, after the lapse of the first 3 years of its 5 year lifetime.

15.      Identify the 5 types of Union Security Agreements.

1.  Closed Shop

2.  Union Shop

3.  Maintenance of Membership

4.  Preferential Hiring

5.  Agency Shop

16. Pablito works as a driver at the National Travel Company (NTC). He is a member of the Samahan ng Manggagawa sa NTC, the exclusive rank-and-file collective bargaining representative in the company. The union has a CBA with NTC which contains a union security and a check-off clause. The union security clause contains maintenance of membership provision that requires all members of the bargaining unit to maintain their member-ship in good standing with the union during the term of the CBA under pain of dismissal. The check-off clause on the other hand authorizes the company to deduct from union members' salaries defined amounts of union dues and other fees. Pablito refused to issue an authorization to the company for the check-off of his dues, maintaining that he will personally remit his dues to the union.

(a) Would the NTC management commit unfair labor practice if it desists from checking off Pablito's union dues for lack of individual authorization from Pablo?

  Suggested Answer: (2013 Bar)

  No. Under Article 9481, violation of the Collective Bargaining Agreement, to be an unfair labor practice, must be gross in character. It must be a flagrant and malicious refusal to comply with the economic provisions of the CBA.

  Suggested Alternative Answer:

  No. Check-offs in the truth impose an extra burden on the employer in the form of additional administrative and bookkeeping costs. It is a burden assumed by 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 deductions and remit the collections to the union. (Holy Cross of Davao College v. Joaquin, G.R. No. 110007 [1996])

(b) Can the union charge Pablito with disloyalty for refusing to allow the check off of his union dues and, on this basis, ask the company to dismiss him from employment?

Suggested Answer:

No. The “check-off clause” in the CBA will not suffice. The law prohibits interference with the disposition of one’s salary. The law requires “individual written authorization” to deduct union dues from Pablo’s salaries. For as long as he pays union dues, Pablo cannot be terminated from employment under the union security clause. As a matter of fact, filing a complaint against the union before the Department of Labor for forcible deduction from salaries does not constitute acts of disloyalty against the union. (Tolentino v. Angeles, 52 O.G. 4262)

17. What are the 3 courses of Action in case of deadlock in Collective bargaining Negotations?

1.  Bring the matter to the National Conciliation and Mediation Board (NCMB) for conciliation and mediation.

2.  Submit the matter for arbitration

3.  Declare a strike or lock out

18. The union of 7^th Day Adventist Hospital and the Hospital encountered CBA negotiation deadlock. The Union members abandoned the hospital and staged a strike.

a. Rule on the action of the union members.

· The action of the union members is valid exercise of its right to strike. However, strike in hospitals, clinics and similar institutions are strongly discouraged because of their effects in the life and health of patients.

b. What is the legal remedy of the Hospital?

· Employer may withhold the wages of employees conducting strikes on the basis of the fair day’s wage for a fair day’s labor.

c.          Can the DOLE Secretary intervene? 

· Yes, the Labor Code provides under Art. 278 provides that in labor disputes adversely affecting the continued operation of such hospitals, clinics or medical institutions, it shall be the duty of the striking union to provide and maintain an effective skeletal force of medical and other health personnel, whose movement and services shall be unhampered and unrestricted, as are necessary to insure the proper and adequate protection of the life and health of its patients, most especially emergency cases, for the duration of the strike or lockout. In such cases, therefore, the Secretary of Labor and Employment may immediately assume, within 24 hours from knowledge of the occurrence of such strike or lockout, jurisdiction over the same or certify it to the Commission for compulsory arbitration.

 

d. If the union defies the order of the Dole Secretary, what will be the consequence to the officers and members of the union?

· In the case of St. Scholastica’s college v. Torres, by defying the orders of the DOLE Secretary, the strikers are deemed to have lost their employment status. They deemed to have abandoned their jobs. It is in itself knowingly participating in an illegal act. All strikers, whether union officers or plain members, may be declared to have lost their employment status. This is clear from the provision of Art 279(a) of LC.

19. A deadlock in the negotiations for the collective bargaining agreement between the School and the Union prompted the latter, after duly notifying the DOLE, to declare a strike on October 17. The strike totally paralyzed the operations of the school. The Labor Secretary immediately assumed jurisdiction over the dispute and issued on the same day (October 17) a return to work order. Upon receipt of the order, the striking union officers and members, on October 20, filed a Motion for Reconsideration thereof questioning the Labor Secretary’s assumption of jurisdiction, and continued with the strike during the pendency of their motion. On October 25, the Labor Secretary denied the reconsideration of his return to work order and further noting the strikers’ failure to immediately return to work, terminated their employment. In assailing the Labor Secretary’s decision, the Union contends that: 

a. The Labor Secretary erroneously assumed jurisdiction over the dispute since the School could not be considered an industry indispensable to national interest;

· No, the Labor Secretary correctly assumed jurisdiction. The law does not define what an “industry indispensable to the national interest” is. It rather gives the Secretary the unlimited discretion to determine what industries may be considered as indispensable to the national interest.

b. The strikers were under no obligation to immediately comply with the October 17 return to work order because of their then pending Motion for Reconsideration of such order;

· No, an assumption or certification order automatically carries with it a returns to work order even if the directive to return to work is not expressly stated in the Order. Assumption or Certification orders are immediately executor. The strikers must return to work even if they filed  a motion for reconsideration.

20. The strike being legal, the employment of the striking Union officers and members cannot be terminated. Rule on these contentions. Explain.

· The employment status of the strikers subsists during a strike. A strike is not a renunciation of employment relation. While out on strike, the strikers cannot be considered to have abandoned their employment but rather have only ceased from their labor.

21. There are 4 companies located inside an Industrial Park in Cavite.  The 1^st Company is located near the gate while the 4^th Company is located farthest inside the compound.  A strike was conducted by the union of the 1^st Company.  They blocked the gate entirely. The 3 companies cannot then enter the gate. You were retained by the 3 companies for their legal rights. What would be your legal advice?

· I will advice them to obtain an injunction order from NLRC.

Obstructions in points of egress and ingress in private properties during a labor dispute may be removed only in accordance with proper injunctive order from the NLRC. They cannot be summarily demolished by law enforcement authorities.

22. What are the 4 reasons why it is called the Freedom Period?

1.  A union member can validly resign from the union

2.  A local union can disaffiliate from its mother federation

3.  The majority status of the incumbent collective bargaining agent can be challenged through a petition for certification election

4.  The parties can seek the termination or modification of the existing CBA

23. Enumerate the 4 mandatory provisions of the CBA.

1.  Grievance Procedure

2.  Voluntary Arbitration

3.  No Strike No Lock out Clause

4.  Labor Management Council

24. Define Grievance.

· Grievance is a dispute or controversy between an employer and the collective bargaining agent, individual employee or group of employees, arising from interpretation or implementation of the CBA or interpretation or enforcement of company personnel policies.

25. Define Voluntary Arbitration.

· It is a system whereby the parties agree to refer their dispute to an impartial third person for final and binding resolution.

26. Enumerate the 4 jurisdictions of Voluntary Arbitrators.

1. Unresolved grievance arising from interpretation or implementation of a CBA or interpretation or enforcement of company personnel policies

2.  Wage distortion disputes in organized establishment

3.  Disputes arising from interpretation and implementation of the productivity incentive programs under RA 6971

4.  Jurisdiction over other labor disputes such as termination disputes, complaints for ULP or deadlock in collective bargaining negotiations, as long as the parties expressly agree to submit the matter to voluntary arbitration.