Labor Law Memory Aid

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San eda College of Law

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MEMORY AID IN LABOR LAW

1. defect which is congenital oracquired during minority

2. legitimate spouse living with theemployee

3. the parents of said employee whollydependent upon him for regularsupport

BENEFITS1. for life to the primary beneficiaries,

guaranteed for five years2. for not more than 60 months to the

secondary beneficiaries in case thereare not primary beneficiaries

3. in no case shall the total benefit beless than P15,000.00

BENEFICIARIESPRIMARY BENEFICIARIESA. dependent spouse until he

remarriesB. dependent children (legitimate,

legitimated, natural born or legallyadopted)

SECONDARY BENEFICIARIESA. illegitimate children and legitimate

descendantsB. parents, grandparents,

grandchildren

TITLE IIIMEDICARE

(Repealed by National Health InsuranceAct of 1995)(See annex for PHILHEALTH)

PAG-IBIG Law- creates a providentsavings system for employees, public andprivate, with housing as the primaryinvestment.

BOOK FIVE

LABOR RELATIONS

TITLE I

POLICY AND DEFINITIONS

ART. 211. DECLARATION OFPOLICY

LABOR RELATIONS the interactions

between the employer and employeesand their representatives and themechanism by which the standards andother terms and conditions ofemployment are negotiated, adjustedand enforced.

LABOR RELATIONS LAW thoseintended to stabilize the relations ofemployees and their employers, adjustdifferences between them through theencouragement of collective bargaining,and settle labor disputes through

conciliation, mediation and arbitration.

it defines the status, rights, andduties and the institutionalmechanisms that govern theindividual and collectiveinteractions of employers,employees or theirrepresentatives.

Absent an employer-employeerelation, there is no laborrelations to speak of.

- Collective bargaining process ispossible only when there is a labororganization, i.e., (1) labor unionor (2) employee association.

POLICY is intended to install industrialdemocracy centered on collectivebargaining, leading to social justice asthe end goal.

PARTIES TO LABOR RELATIONS CASES:1. employees organization,2. management, and3. the public

The public is always to beconsidered in disputes betweenlabor and capital, and it hasbeen held that the rights of thegeneral public are paramount.

Labor relations policy under the LCis embodied in Section 3 Article XIII ofthe 1987 Constitutionwhich guaranteesto all workers their right among othersto:


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1. Self-organization,2. Collective bargaining and

negotiations,3. Peaceful and concerted

activities including the right tostrike in accordance with law,and

4. Participate in policy anddecision-making processesaffecting their rights andbenefits as may be provided bylaw.

ART. 212. DEFINITIONS

EMPLOYER- one who employs theservices of others; one for whom

employees work and who pays theirwages or salaries.any person acting in the interest of anemployer, directly or indirectly. Theterm does not include a labororganization or any of its officers andagents, EXCEPT when acting as anemployer.

EMPLOYEE- one who works for anemployer; a person working for salary orwages.

Shall not be limited to the

employees of a particularemployer, and it shall includeany individual whose workhas ceased as a result of or inconnection with any currentlabor dispute or because of anyunfair labor practice IF he hasnot obtained any other:

1. Substantially equivalentand

2. Regular employment(Art.212f)

ICAWO vs. CIR (16 SCRA 562): Thecategory of any employee is so broadas to justify employee status forsupervisors, regular workers, casualemployees, emergency laborers,substitute workers, seasonal workers,part-time workers and other specialwork groups.

APEX MINING CO., vs. NLRC (196 SCRA251): Laundrywoman not actuallyserving the family of the employer but

working in the staff houses or within the

premises of the employers business is aregular employee and is not included inthe definition of domestic helper.

FELIX vs. BUENASEDA (240 SCRA 139):Residency or resident physician positionin a medical specialty is not employmentbut connotes training and temporarystatus. (No E-E relationship)

WORKERS ASSOCIATION - anyassociation of workers organized for themutual aid and protection of itsmembers or for any legitimate purposeother than for collective bargaining.

INDEPENDENT UNION It refers toany labor organization operating at theenterprise level whose legal personalityis derived through an independent actionfor registration with the Bureau of LaborRelations (BLR) of the Department ofLabor and Employment prescribed underArt. 234. It may be affiliated with afederation, national or industry union, inwhich case it may also be referred to asan affiliate.

FEDERATION - any labor organization

with at least 10 locals/chapters oraffiliates each of which must be a dulycertified or recognized as the sole andexclusive collective bargaining agent ofthe employees of an appropriatebargaining unit.

LEGITIMATE WORKERS ASSOCIATION refers to an association of workersorganized for mutual aid and protectionof its members of for any legitimatepurpose other than collective bargainingregistered with the Department inaccordance with Rule III, Sections 2-Cand 2-D of these rules.

LABOR MANAGEMENT COUNCIL- Deals with the employer on

matters affecting the employeesrights, benefits and welfare.

- Purposes are to:a. promote gainful employmentb. improve working conditions andc. achieve increased productivity

(RA 6971)


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LABOR ORGANIZATION any union orassociation of employees which exists inwhole in part for the purpose ofcollective bargaining with employers

concerning terms and conditions ofemployment.

LEGITIMATE LABOR ORGANIZATION-any labor organization which is dulyregistered with the Department ofLabor. The term includes alocal/chapter of the Bureau of LaborRelations directly chartered by alegitimate federation or national unionwhich has been duly reported to theDepartment in accordance with Rule VI,Section 2 of Book V of the Rules

Implementing the LC.

LABOR DISPUTE includes anycontroversy or matter concerning:

1. terms or conditions of employmentOR

2. the association or representation ofpersons in negotiating, fixing,maintaining, changing or arrangingthe terms and conditions ofemployment

REGARDLESS of whether the disputants

stand in the proximate relation ofemployer and employee.

The test of whether a laborcontroversy comes within the definitionof a labor dispute depends on whether itinvolves or concerns terms, conditions ofemployment, or representation.

TYPES OF LABOR DISPUTES:1. Labor Standards Disputes

a. Compensation [e.g.,

underpayment of minimumwage; stringent output quota;illegal pay deductions]

b. Benefits [ e.g., nonpayment ofholiday pay, overtime pay or otherbenefits]

c. Working conditions [e.g., unrectifiedwork hazards]

2. Labor Relations Disputesa. Organizational right dispute/

unfair labor practice [e.g.,coercion, restraint or

interference in unionization

efforts; reprisal or discriminationdue to union activities; companyunionism]

b. Representation disputes [e.g.,

determination of the collectivebargaining unit; ULP strike;uncertainty as to determinationof the sole and exclusivebargaining agent of theemployees in an appropriatebargaining unit which is themajority union]

c. Bargaining disputes [e.g.,refusalto bargain (ULP); bargainingdeadlock; economic strike orlockout]

d. Contract administration or

personnel policy disputes [e.g.,noncompliance with CBAprovisions (ULP if grossnoncompliance with economicprovisions); disregard ofgrievance machinery; violationno strike/no lockout agreement]

e. Employment tenure disputes[e.g., non regularization ofemployees; illegal termination;non-issuance of employmentcontract]

PARTIES TO A DISPUTE:1. PRIMARY PARTIES employer,

employees, union2. SECONDARY PARTIES voluntary

arbitrator, agencies of DOLE (BLR,VAC), NLRC, Sec. of Labor, Office ofthe President

TITLE II

NATIONAL LABOR RELATIONSCOMMISSION

CHAPTER I

CREATION AND COMPOSITION

ART. 213. NATIONAL LABORRELATIONS COMMISSION

NLRC an administrative body withquasi-judicial functions andthe principalgovernment agency that hears & decideslabor-management disputes; attached to


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the DOLE for program & policycoordination only.

POWERS of the NLRC as amended by

R.A. 6715

EN BANC

1. Promulgating rules &regulations governing thehearing & disposition of casesbefore any of its divisions andregional branches andformulating policies affectingits administration andoperations.

2. Under R.A. 7700: to allow caseswithin the jurisdiction of anydivision to be heard anddecided by any other decisionwhose docket allows theadditional workload.

DIVISION

1. Exercises adjudicatory orappellate power over decisionsof Labor Arbiters and RegionalDirectors of the DOLE over

monetary claims not overP5,000.00 and all other powers,functions and duties through itsdivisions.

TRIPARTISM

The NLRC is composed of five (5)divisions.

Three (3) sectors arerepresented in the composition

of the NLRC.

Each division composed of threecommissioners will haverepresentatives from thefollowing:

1. from the public sector-nominated by the Secretaryof Labor2. workers organizations-nominated by the laborfederation

3. employer andmanagement sector-nominated by the EmployersConfederation of the

Philippines (ECOP)

QUALIFICATIONS OF THE CHAIRMAN ANDTHE COMMISSIONERS:

1. must be a member of thePhilippine Bar;

2. must have been engaged in thepractice of law in the Philippinesfor at least 15 years;

3. must have experience orexposure in handling labormanagement relations for atleast 5 years; and

4. preferably a resident of theregion where he is to hold office.

The appointment of the Chairmanand the Commissioners of the NLRCare not subject to confirmation bythe Commission on Appointments.

QUALIFICATIONS OF EXECUTIVELABOR ARBITERS/LABOR ARBITERS:1. must be members of the

Philippine Bar;2. must have been engaged in the

practice of law in the Philippinesfor at least 7 years; and

3. must have experience orexposure in handling labormanagement relations for atleast 3 years.

TERM OF OFFICE OF THE CHAIRMAN,COMMISIONERS, AND LABOR ARBITERS:

They shall hold office during goodbehavior until they reach the age of65 unless removed for causes asprovided by law or becomeincapacitated to discharge thefunction of his office.

A. EXCLUSIVE AND ORIGINALJURISDICTION OF THE NLRC:

1. Cases certified to it for compulsoryarbitration by the Secretary of Laborunder Art. 263 CERTIFIED CASES;

2. INJUNCTION CASES under Art. 218

and 264; AND


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3. CONTEMPT CASES

B. EXCLUSIVE APPELLATE JURISDICTIONOF THE NLRC:

1.Cases DECIDED BY LABORARBITERS under Art 217b of theLabor Code and Sec 10 RA8012(Migrant Workers Act); and

2.Cases DECIDED BY THE REGIONALOFFICES OF DOLE IN THE EXERCISEOF ITS ADJUDICATORY FUNCTIONunder Art 129 of the Labor Code overmonetary claims of workersamounting to not more thatP5,000.00

THE NLRC ONLY SITS EN BANCFOR PURPOSES OF:

a. promulgating rules and regulationsgoverning the hearing and disposition ofcases before any of its divisions andregional branches, and

b. formulating policies affecting itsadministration and operations.

The Commission may only siten banc for the determination

of policies and NOT forpurposes of adjudication. (RA6715)

Adjudication of cases certifiedto the NLRC, or appealed to itfrom the decision of its LaborArbiters are referred to anddecided by its five (5) divisions.

-Petitions for certiorari (Rule 65)against decisions of the NLRC should

henceforth be initially filed with theCourt of Appealsin strict observance ofthe doctrine on the hierarchy of courtsas the appropriate forum for the reliefdesired. The Court of Appeals isprocedurally equipped to resolve unclearor ambiguous factual finding, aside fromthe increased number of its componentdivisions. (St. Martins Funeral Homesvs. NLRC; G.R. No. 130866)

- Findings of facts of a labor tribunalare accorded the utmost respect by the

courts and are well-nigh conclusive ifsupported by substantial evidence.

- Labor cases are not subject to

Barangay Conciliation since ordinaryrules of procedure are merely suppletoryin character vis--vis labor disputeswhich are primarily governed by laborlaws.

- The failure of the petitioner tofile a motion for reconsideration of thedecision of NLRC before filing a petitionfor certiorari has in certain instancesbeen held not to be a fatal omission.

- In certain cases however the

filing of a Motion for Reconsideration isdeemed a condition sine qua non for thefiling of a Petition for Certiorari.

CHAPTER IIPOWERS AND DUTIES

ART. 217. JURISDICTION OFLABOR ARBITERS AND THE COMMISSION

EXCLUSIVE AND ORIGINALJURISDICTION OF LABOR ARBITERS:

- Except as otherwise providedunder this Code the Labor Arbitersshall have original and exclusivejurisdiction to hear and decide, within30 calendar days after the submission ofthe case by the parties for decisionwithout extension, even in the absenceof stenographic notes, the followingcases involving all workers, whetheragricultural or non-agricultural:

1. ULPcases;

2. TERMINATIONdisputes;

3. If accompanied WITH ACLAIM FOR REINSTATEMENT,those cases that workers mayfile involving wages, rates ofpay, hours of work and otherterms and conditions ofemployment;

4. Claims for actual, moral,

exemplary and other forms of


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DAMAGESarising from employer-employee relations;

5. CASES ARISING FROM ANY

VIOLATION OF ART 264 of thisCode, including questionsinvolving the legality of strikesand lockouts;

6. Except claims for EmployeesCompensation, Social Security,Medicare and maternity benefits,ALL OTHER CLAIMS ARISINGFROM EMPLOYER-EMPLOYEERELATIONS, including those ofpersons in domestic or householdservice, involving an amount

exceeding P5,000.00 regardlessof whether accompanies with aclaim for reinstatement;

7. MONETARY CLAIMS OFOVERSEAS CONTRACT WORKERSunder the Migrant Workers Act of1995; and

8. Claims of employees againstGOCCs if the latter does nothave an original charterand hasbeen incorporated under the

Corporation Code.

Although the provision speaks ofEXCLUSIVE AND ORIGINALJURISDICTION OF labor arbiters,the cases enumerated mayinstead be submitted to a

voluntary arbitrator byagreement of the parties underArt. 262. The law prefersvoluntary over compulsory

arbitration.

Cases which must be disposed ofby the labor arbiter by referring thesame to the grievance machinery andvoluntary arbitration:

a. Disputes on the interpretation orimplementation of CBA and

b. those arising from theinterpretation or enforcement ofcompany personnel policies.

The labor arbiter and the NLRC haveno jurisdiction over claims filed byemployees against internationalagencies such as IRRI, WHO etc.unless they expressly waive theirimmunity. (Lasco vs. UNRFNRE)

They also have no jurisdiction overillegal dismissal cases of corporateofficers which fall under PD 902-Aand now fall under the jurisdiction ofthe Regular Courts pursuant to the

New Securities Regulation Code.[Formerly under the jurisdiction ofthe Securities and ExchangeCommission (SEC) (Dily-Daly Nakpil vsNLRC)]

In the absence of service ofsummons or a valid waiverthereof, the hearings andjudgment rendered by the laborarbiter are null and void.

COMPULSORY ARBITRATION: Theprocess of settlement of labor disputesby a government agency which has theauthority to investigate and make andaward binding to the parties.

The NLRC may conduct compulsoryarbitration only in national interest casesreferred to it by the DOLE secretary.

Labor arbiters jurisdiction isemployment related.

ART. 218. POWERS OF THECOMMISSION

POWERS OF THE NLRC:a. Rule-making power

[promulgation of rules &regulations governing dispositionof cases before any of itsdivisions/regional offices]

b. Power to issue compulsoryprocesses [administer oaths,summon parties, issuesubpoenas]

c. Power to investigate matters andhear disputes within itsjurisdiction [adjudicatorypoweroriginal & appellatejurisdiction over cases]

d. Contempt power [218]


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e. Power to issue injunctions andrestraining orders

PROCEDURE FOR THE ISSUANCE

OF RESTRAINING ORDER/ INJUNCTION:a. filing of a verified PETITION

b. HEARING AFTER DUE AND PERSONALNOTICEhas been served in such manneras the Commission shall direct, to:

a. all known persons againstwhom the relief is sought andb. also to the Chief Executiveor other public officials of theprovince or city within which theunlawful acts have beenthreatened or committed

charged with the duty to protectthe complainants property.

c. RECEPTION AT THE HEARING OFTHE TESTIMONIES OF WITNESSESwith opportunity for cross-examination, in support of theallegations of the complaint madeunder oath as well as testimony inopposition thereto

d. FINDING OF FACTof the Commissionto the effect that :

prohibited or unlawful actshave been threatened and willbe committed, or have beencommitted and will becontinued unless restrained,butno injunction or temporaryrestraining order shall beissued on account of anythreat, prohibited or unlawfulact, except against thepersons, association ororganization making the threator committing the prohibitedor unlawful act or actuallyauthorizing or ratifying thesame after actual knowledgethereof. That substantial andirreparable injury to thecomplainants property willfollow That as to each item ofrelief to be granted, greaterinjury will be inflicted uponcomplainant by the denial of

the relief than will be inflicted

upon the defendants by thegranting of the relief That complainants has noadequate remedy at law

That public officers chargedwith the duty to protectcomplainants property areunable or unwilling to furnishadequate protection.

e. Posting of a BOND

IRREPARABLE INJURY: An injurywhich cannot be adequatelycompensated in damages due to thenature of the injury itself or the natureof the right or property injured or when

there exists no pecuniary standard forthe measurement of damages.

ADEQUATE REMEDY: One thataffords relief with reference to thematter in controversy and which isappropriate to the particularcircumstances of the case.

The power of the NLRC to enjoinor restrain the commission of any or allprohibited or unlawful acts under Art.218 of the Labor Code can only be

exercised in a labor dispute.

REQUISITES BEFORE TRO MAYBE ISSUED EX PARTE:

1. The complainant shall ALLEGETHAT, unless a TRO is issuedwithout notice, a substantialand irreparable injury tocomplaints property will beunavoidable;

2. TESTIMONY UNDER OATH issufficient, if sustained, to justifythe Commission in issuing atemporary injunction uponhearing after notice;

3. The complainant shall first FILEAN UNDERTAKING WITHADEQUATE SECURITY/BOND inan amount to be fixed by theCommission sufficient torecompense those enjoined forany loss, expenses or damagecaused by the improvident orerroneous issuance of such orderor injunction, including all

reasonable costs, together with


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a reasonable attorneys fee, andexpense of defense against thegranting of any injunctive reliefsought in the same proceeding

and subsequently denied by theCommission. The TRO shall be effective

for no longer than 20 days and shallbecome void at the expiration of said20 days counted from the date of theposting of the bond.

It may be lifted or it may beupgraded to a permanent injunction.

The procedural andsubstantial requirements of Art 218(e) must be strictly complied withbefore an injunction may issue in a

labor dispute.

THE FOLLOWING CAN ISSUEINJUNCTIONS/ TRO IN LABOR DISPUTES:

1. President (ART. 263, g)2. Secretary of Labor (ART. 263, g)3. NLRC (218)4. Labor Arbiters (ART. 217/RULE XISec. 1 of IR&R)5. Regional Directors6. Med- Arbiters

ART. 219. OCULAR INSPECTION

The Chairman, any Commissioner,labor Arbiter or their duly authorizedrepresentatives may, at anytime duringworking hours:

a. Conduct an ocular inspection onany establishment, building,ship, place or premises,including any work, material,implement, machinery,appliance or any object therein;and

b. Ask any employee, laborer, orany person as the case may befor any information or dateconcerning any matter orquestion relative to the objectof the investigation

ART. 221. TECHNICAL RULESNOT BINDING AND PRIOR RESORT TOAMICABLE SETTLEMENTThe NLRC may disregard technical

rules of procedure in order to give life to

the constitutional mandate affording

protection to labor. (Principe vs.Philippine-Singapore Transport ServicesInc.)

RES JUDICATA applies only tojudicial or quasi-judicial proceedings andNOT to the exercise of administrativepowers.

APPROVAL OF AN AMICABLESETTLEMENT BY A LABOR ARBITER

An amicable settlement of a labordispute should be approved by the laborarbiter before whom the case is pendingafter being satisfied that:

a. it was VOLUNTARILY ENTERED into

by the parties and

after having EXPLAINED TO THEMTHE TERMS AND CONSEQUENCESthereof.

PURPOSE: for the employeesprotectionbecause the labor arbiterbefore whom the case is pending wouldbe in a better position than just anyother person to personally determine thevoluntariness of the agreement andcertify its validity (Periquet vs. NLRC).

The Rules of Court are applied ina suppletory character.

COMPROMISE, as a way ofsettling disputes is encouraged

through compromise, theparties, by making reciprocalconcessions, avoid litigationor put an end to one alreadycommenced.

ART. 222. APPEARANCES ANDFEES

APPEARANCE OF NON-LAWYERSBEFORE THE COMMISSION:

GENERAL RULE: ONLY lawyers canappear before the NLRC or a LaborArbiter

EXCEPTIONS: Non-Lawyers canappear ONLY in the following instances:

1. if they represent themselves;


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2. if they represent theirorganization or membersthereof; or3. if he is a duly accredited

member of the legal aid officeduly recognized by the DOJ incases referred thereto by thelatter or by the IBP.

ATTORNEYS FEES:1. Art. 111 Labor Code (simplemonetary claim)

The maximum amount to begiven a lawyer for his legalassistance rendered which is 10% ofthe total monetary award adjudgedthe employees excluding the award

for moral and exemplary damages.To demand more than this isunlawful.

2. Art. 222

a. Attorneys fees for CBAnegotiations and conclusion shallbe in the amount agreed upon bythe parties to be taken from theunion funds and not fromindividual union members.

b. This article prohibits thepayment of attorneys fees onlywhere the same is effectedthrough forced contributionsfrom the workers form their ownfunds as distinguished from unionfunds.

c. Neither the lawyer nor theunion itself may require theindividual workers to assume theobligation to pay the attorneysfees from their own pockets.Any agreement to the contraryshall be null and void.

ARTICLE 211 VS ARTICLE 222

ART. 211 ART. 222Prohibits the

award ofattorneys feeswhich exceed 10%of the amount ofwages recovered.

Prohibits thepayment ofattorneys fees onlywhen it is effectedthrough forcedcontribution from theworkers from their

own funds as

distinguished fromunion funds

PURPOSE: tofix the limit on theamount ofattorneys fees.The victoriousparty may recoverin anyadministrative orjudicialproceeding.

PURPOSE: toprevent theimposition on the

workers of the dutyto individuallycontribute theirrespective shares inthe fee to be paid tothe attorney for hisservices to the union.

CHAPTER III

APPEAL

ART. 223. APPEAL

GROUNDS FOR APPEAL:

1.If there is prima facie evidence ofabuse of discretion on the part ofthe Labor Arbiter

2.If the decision, order or award wassecured through fraud or coercion,including graft and corruption;

3.If made purely on questions of law;and

4.If serious errors in the findings offacts are raised which would causegrave or irreparable damage orinjury to the appellant.

PERIODS WITHIN WHICH TOAPPEAL:

A. decisions of the regional director:

within 5 calendar days fromreceipt of the order [129 LCRecovery of wages and simplemoney claims of the amount not

exceeding P5,000.00].

B. decisions of the labor arbiter:

within 10 calendar days fromthe receipt of the decision. The appeal must be under oathand must state specifically thegrounds relied upon and thesupporting arguments. Where the 10th day falls on aSaturday, Sunday or legalholiday, the appeal may be filed


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on the next business day. (Rulesof Procedure of NLRC)

PERIOD TO APPEALNOT

EXTENDIBLE It is the policy of the state

to settle expeditiously labordisputes.

The perfection of an appealwithin the statutory/reglementary period is notonly mandatory but alsojurisdictional and failure todo so renders the questioneddecision final and executoryas to deprive the appellatecourt of jurisdiction to alter

the final judgment of theRDs and LAs. (AboitizShipping Employees

Association vs. Trajano) REQUISITES FOR THE

PERFECTION OF AN APPEAL TO THENLRC:

1. Filing of A VERIFIEDMEMORANDUM OF APPEAL withinthe required period of appeal;

2. In case of monetary award, whenthe appellee is the employer heshould file an APPEAL BOND

corresponding to the monetaryaward excluding awards for moraland exemplary damages andattorneys fees.

Where the employerfailed to post a bond toperfect its appeal, theremedy of the employee is amotion to dismiss theappeal, NOT a petition formandamus. The intention of the

lawmakers is to make thebond an indispensablerequisite for the perfectionof an appeal by theemployer.

3. Appeal fee of P150;4. Proof of service - furnish the

other party with a copy of thememo of appeal.

Failure to give a copy ofthe appeal to the appelleewithin 10 days is not fatal IF

the latter was not

prejudiced by the delay inthe service of said copy ofthe appealtechnical rulesmust yield to the broader

interest of substantialjustice. (Modern FishingGear Labor Union vs. Noriel)

A mere notice of appealdoes not stop the running ofthe reglementary period ofappeal.

EXECUTION PENDING APPEAL - thedecision of the labor arbiter orderingthe reinstatement of a dismissed orseparated employee shall beimmediately executory insofar as the

reinstatement aspect is concerned andthe posting of an appeal bond by theemployer shall not stay suchexecution.

There is no need for amotion for the issuance ofwrit of execution on thereinstatement order as it isself-executory. (PioneerTexturizing Co. vs. NLRC)

Perfection of appeal within the

reglementary period is bothMANDATORY and JURISDICTIONAL.(ACDA vs NLRC; Volkschel vs NLRC)

Non-service of the copy of theappeal/appeal memorandum to theadverse party is not a jurisdictionaleffect and does not justify dismissal ofthe appeal.

AMOUNT OF APPEAL BOND: amountequal to the monetary award exclusiveof damages (moral and exemplary) plusattorneys fees.

OPTIONS OF THE EMPLOYER INCOMPLYING WITH AN ORDER OFREINSTATEMENT WHICH ISIMMEDIATELY EXECUTORY:

1.He can ADMIT THE DISMISSEDemployee back to work under thesame terms and conditions prevailingprior to his dismissal or separation orto a substantially equivalent position


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if the former position is alreadyfilled up, OR

2.He can REINSTATE THE EMPLOYEE

MERELY IN THE PAYROLL WITHPAYMENT OF THE ACCRUEDSALARIES.

Failure to exercise oneof the foregoing options maybe compelled under pain ofcontempt and the employermay be made to pay insteadthe salary of the employee.

A petition for relief from thedecision of the labor arbiter muststrictly comply with 2 reglementary

periods:

1.The petition must be filed within 60days from knowledge of thejudgment; and

2.The petition must be filed within afixed period of 6 months from entryof such judgment.

Petitions filed beyondsaid period will no longer beentertained.

APPEAL FROM THE DECISION OF THE

NLRC:

No law allows an appeal from adecision of the Secretary of Labor, orthe NLRC, or of a voluntary arbitrator.In these cases, the special civil action ofcertiorari, prohibition or mandamusunder Rule 65 of the Rules of Court maybe lodged with the Court of Appeals.(St. Martins Funeral Home vs. CA)

No Motion for Reconsideration isallowed for any order, decision

or award of a Labor Arbiter.However a Motion forReconsideration of a LaborArbiters decision, award ororder which has all the elementsof an appeal may be treated asappeal.

Only one Motion forReconsideration of the decision,award or order of thecommission on appealed casesbefore it.

ART 224. EXECUTION OFDECISIONS, ORDER, OR AWARDS

The decision of the Secretary of

Labor, the Commission, the Bureau orRegional Director the Labor Arbiter, theMed-Arbiter or the Voluntary Arbitratorshall be final and executory after 10calendar days from receipt thereof bythe parties and shall be executorywithin ten (10) years.

The foregoing may, upon itsown initiative or on motion ofany interested party, issue awrit of execution on a

judgment within 5 years from

the date it becomes final andexecutory.

An independent action isrequired for the execution of thefinal judgement within the nextof following 5 years [ Phil.National Railways vs NLRC (177SCRA740, Sept. 19, 1989)]

The immediate execution ofjudgment should be undertakenonly when the monetary awardhad been carefully andaccurately determined by the

NLRC and only after theemployer is given theopportunity to be heard and toraise objections to thecomputation.

TITLE IIIBUREAU OF LABOR RELATIONS

ART. 226. BUREAU OF LABORRELATIONS

Pursuant to E.O. 126, the NATIONALCONCILIATION AND MEDIATION BOARD(NCMB) has absorbed the conciliation,mediation and voluntary arbitrationfunctions of the BLR.

Jurisdiction over labor-management problems ordisputes is also exercised byother offices such as the DOLEregional offices, and the Officeof the Secretary, NLRC, POEA,


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OWWA, SSS-ECC, the regionalwage and productivity boards,NWPC, and even the regularcourts over intra-corporate

disputes. EXCLUSIVE AND ORIGINALJURISDICTION OF THE BLR

-to act at its own initiative or uponthe request of either or both parties onall:

1.INTRA- union conflicts

2.INTER- union conflicts

3.all DISPUTES, GRIEVANCES ORPROBLEMS ARISING FROM OR

AFFECTING LABOR MANAGEMENTRELATIONS IN ALL WORKPLACESWHETHER AGRICULTURAL OR NON-AGRICULATURAL.

The parties may however, byagreement, settle theirdifferences by submitting theircase to a voluntary arbitratorrather than taking the case tothe BLR.

CASES WHERE THE BLR HAS NO

JURISDICTION:Those arising from the

implementation or interpretation ofcollective bargaining agreements whichshall be subject of grievance procedureand/or voluntary arbitration.

INTRA-UNION DISPUTES refers toany conflict between and among unionmembers, including grievances arisingfrom any violation of the rights andconditions of membership, violation of ordisagreement over any provision of theunions constitution and by-laws, ordisputes arising from chartering oraffiliation.

MED-ARBITER- an officer in theregional office or bureau authorized tohear, conciliate, and deciderepresentation cases or assist in thedisposition of intra or inter-uniondisputes.

COVERAGE OF INTER/INTRA-UNION

DISPUTES (Sec. 1 Rule XI DO 40-03)

a. cancellation of registration of alabor organization filed by itsmembers or by any other labororganization;

b. conduct of election of union andworkers associationofficers/nullification of electionof union and workersassociation officers;

c. audit/accounts examination ofunion or workers associationfunds;

d. deregistration of CBA;e. validity/invalidity of union

affiliation or disaffiliation;f. validity/invalidity of

acceptance/non-acceptance for

union membership;g. validity/invalidity of

impeachment/ expulsion ofunion and workers associationofficers;

h. validity/invalidity of voluntaryrecognition;

i. opposition to application forunion and CBA registration;

j. violations of or disagreementsover any provision in a union orworkers association constitutionand by-laws;

k. disagreements over chartering orregistration of labororganizations and CBAs;

l. violations of the rights andconditions of union or workersassociation membership;

m. violations of the rights oflegitimate labor organizations,except interpretation of CBAs;

n. such other disputes or conflictsinvolving the rights to self-organization, union membership,and collective bargaining

1. between and amonglegitimate labororganizations

2. between and amongmembers of a union orworkers association

EXTENDED COVERAGE(Section 2 Rule XIDO 40-03)

Other related labor relationsdisputes shall include any conflict

between a labor organization and the


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employer or any individual, entity, orgroup that is not a labor organization orworkers association. This includes:

1. cancellation of registrationof unions and workersassociations; and

2. a petition for interpleader

SPECIAL REQUIREMENTS AS TO THEFILING OF CASES:A. INVOLVING ENTIRE MEMBERSHIP

1.The complaint must be signed byat least 30% of the entiremembership of the union and

2.It must also show exhaustion of

administrative remedies.

B. INVOLVING A MEMBER ONLY - In suchcase only the affected member mayfile the complaint.

Redress must first be soughtwithin the union itself inaccordance with its constitutionand by-laws EXCEPT under anyof the following circumstances:a. futility of intra-union remediesb. improper expulsion procedure

c. undue delay in appeal as toconstitute substantial injusticed. the action is for damagese. lack of jurisdiction of theinvestigating bodyf. action of the administrativeagency is patently illegal,arbitrary, and oppressiveg. issue is purely a question of lawh. where the administrative agencyhad already prejudged thecasei. where the administrative agency

was practically given the

opportunity to act on the case but itdid not.

Imposition of fees by the unionaffects the entire membership,therefore it requires that thecomplaint should be signed by atleast 30% of the membership ofthe union.

INTER-UNION DISPUTES -refers to anyconflict between and among legitimatelabor organizations involvingrepresentation questions for purposes of

collective bargaining or to any otherconflict or dispute between legitimatelabor organizations based on anyviolations of their rights as labor

organizations.

EFFECTS OF FILING/PENDENCY OFINTER/INTRA-UNION DISPUTE ANDOTHER LABOR RELATIONS DISPUTES(Section 3 Rule XI DO 40-03)- The rights, relationships and obligations ofthe parties litigants against each other andother parties-in-interest prior to the

WHO 1. For grounds under Sec. 1:a. any LLOb. member(s) thereof

specially concerned2. For grounds under Sec. 2anyparty-in-interest

WHEREFILED

1. Regional Office that issued itscertificate of registration orcertificate of creation ofchartered local- If it involves laborunions with independentregistrations, chartered locals,workers association, its officersor members2. Directly with the BureauIf itinvolves a Federation/NationalUnions/Industry Unions, itsofficers or members

FORMALREQUIRE-

MENTS

1. in writing2. verified under oath3. contains the followingavermentsa. name, address and otherpersonal circumstances of thecomplainant(s) or petitioner(s);b. name, address and otherpersonal circumstances of therespondent(s) or person(s)charged;c. nature of the complaint orpetition;d. facts and circumstancessurrounding the complaint orpetition;e. cause(s) of action or specificviolation(s) committed;f. a statement that theadministrative remedies providedfor in the constitution and by-laws

-have been exhausted or-such remedies are not

readily available to thecomplainant(s) orpetitioner(s) through no faultof his/their own or

-compliance with suchadministrative remedies doesnot apply to complainant(s) orpetitioner(s);

g. relief(s) prayed for;h. certificate of non-forum

shopping; andi. other relevant matters


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institution of the petition shall continue toremain during the pendency of the petitionand until the date of finality of the decisionrendered therein. Thereafter, the rights,relationships and obligations of the parties

litigants against each other and other parties-in-interest shall be governed by the decisionso ordered.- The filing or pendency of any inter/intra-union disputes is not a prejudicial question toany petition for certification election andshall not be a ground for the dismissal of apetition for certification election orsuspension of proceedings for certificationelection.

SUMMARY OF RULES ONINTRA/INTER-UNION DISPUTES (Rule XIDO 40-03)

MODES OF APPEAL IN INTRA/INTER-UNION DISPUTES (Rule XI DO 40-03)HOW (formalrequirements)

1. Under oath2. Consist of amemorandum of appeal3. Based on either ofthe following grounds:

a. Grave abuse ofdiscretion

b. Gross violationof the Rules

4. With supportingarguments and evidence

PERIOD Within 10 days fromreceipt of decision

TO WHOMAPPEALABLE

1. Bureau of LaborRelationsif the caseoriginated from the MedArbiter/RegionalDirector2. Sec. Of Laborif thecase originated from theBureau

WHERE FILED Regional Office or tothe BLR, where thecomplaint originated(records are transmittedto the BLR or Sec.Within 24 hours fromreceipt of thememorandum of appeal)

DETERMINATION OF EMPLOYER-EMPLOYEE RELATIONSHIP:

- Since the BLR has the original andexclusive jurisdiction to decide,inter alia, all disputes, grievances orproblems arising from or affecting

labor-management relations in allworkplaces, necessarily, in theexercise of this jurisdiction overlabor-management relations, the

Med-Arbiter has the authority,original and exclusive, todetermine the existence of anemployer-employee relationship.(MY San Biscuits, Inc. vs. LaguesmaG.R. No. 9511, 22 April 1991)

In cases where there isoverlapping of jurisdiction,determine the principal issue.The agency that has jurisdictionthereon may decide on theincidental issues.

ADMINISTRATIVE FUNCTIONS OF THEBLR:

1.The REGULATION OF REGISTRATIONof the labor unions;

2.The KEEPING OF A REGISTRY oflabor unions;

3.The maintenance of a FILE OF CBAS.ART. 227. COMPROMISEAGREEMENTS; and

4.The maintenance of a file of allsettlements or final decisions of theSupreme Court, Court of Appeals,NLRC and other agencies on labordisputes.

REQUIREMENTS:a. must be freely entered into;b. must not be contrary to law, morals

or public policy; andc. must be approved by the authoritybefore whom the case is pending [seediscussion on article 221approval oflabor arbiter of an amicablesettlement in a case before him.

May be effected at any stageof the proceedings and evenwhen there is already a finalexecutory judgment (2040 NCC). Cannot be entered into whenthe final judgment is already inthe process of execution.(Jesalva vs. Bautista)


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FORMAL REQUIREMENTS OF A VALIDCOMPROMISE AGREEMENT:1. in writing2. signed in the presence of the regional

director or his duly authorizedrepresentative.

WITH vs. WITHOUT ASSISTANCE OFDOLE-COMPROMISE AGREEMENTSWithout assistance

of DOLEWith the

assistance ofDOLE

a.VALIDITY/BINDINGEFFECT- Valid and bindingupon the parties

- Valid and bindingupon the parties

b. REPUDIATION- Can berepudiated by theparties by going tothe Commission

NOTE: ULP casesare not subject tocompromise.

- Can no longer berepudiatedbecomes final andbinding upon theparties uponexecution EXCEPTa. in case of non

compliancewith thecompromiseagreement;or

if there isprima facieevidence that thesettlement wasobtained throughfraud,misrepresentation, or coercion

OPTIONS WHEN COMPROMISEAGREEMENT IS VIOLATED:1. enforce compromise by writ ofexecution2. regard it as rescinded and insist uponoriginal demand.

REQUIREMENTS OF A VALIDQUITCLAIM:

1. The quitclaim must beVOLUNTARILY ARRIVED at by theparties;2. It must be WITH THE ASSISTANCEof

the Bureau of Labor Standards,Bureau of Labor Relations or any

representative of the DOLE; and

3. The CONSIDERATION MUST BEREASONABLE (required only whenentered without the assistance ofDOLE)

Dire necessity is not anacceptable ground for annullingthe releases, especially in theabsence of proof that theemployees were forced toexecute them. (Veloso vs. DOLE)

WAIVER OF REINSTATEMENT likewaivers of money claims, a waiver ofreinstatement must be regarded as apersonal right which must beexercised personally by the workers

themselves. (Jag & Haggar Jeans andSportswear Corp. vs. NLRC)

ART 231. REGISTRY OF UNIONSAND FILE OF COLLECTIVEAGREEMENT

The CBA is more than a contract,it is highly impressed with publicinterest for it is an essentialinstrument to promote industrialpeace.

Must be filed directly with the

Bureau or the Regional Offices ofDOLE within thirty (30) daysfrom execution.

An UNREGISTERED CBAdoes notbar certification election[contract bar rule will not applyin the absence of registration.[See discussion on Arts. 253 &253-A]

Registration of the CBA is not arequisite for its validity.

LIBERTY FLOUR MILLS EMPLOYEES v.LFM, INC. 180 SCRA 668 The certification of the CBA by theBLR is not required to put a stamp ofvalidity to such contract. Once it is dulyentered into and signed by the parties, aCBA becomes effective as between theparties regardless of whether or not thesame has been certified by the BLR.


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16


ART 232. PROHIBITION ONCERTIFICATION ELECTION

CONTRACT BAR RULE: provides that

while a valid and registered CBA issubsisting for a fixed period of 5 years ,the Bureau is not allowed to hold anelection contesting the majority statusof the incumbent union except duringthe sixty (60) day period immediatelyprior to its expiration, which period iscalled the freedom period.

The existence of the CBA bars theholding of an inter-union electoralcontest and the filing of the Petition forCertification Election except within the

freedom period.

PURPOSE: to minimize unionpoliticking until the proper timecomes.

ART 233. PRIVILEGEDCOMMUNICATION

PRIVILEGED COMMUNICATION: Anystatement of such privacy that the lawexempts the person receiving theinformation from the duty to disclose it.

Information and statements made atconciliation proceedings shall be treatedas privileged communication and shallnot be used as evidence in theCommission.

Conciliators and similar officialsmay not testify in any court orbody regarding any matterstaken up at conciliationproceedings conducted by them.

TITLE IV

LABOR ORGANIZATIONS

CHAPTER I

REGISTRATION AND CANCELLATION

ART. 234. REQUIREMENTS OFREGISTRATIONLABOR ORGANIZATION - Any union orassociation of employees which exists inwhole or in part for the purpose of:

a. collective bargaining orb. of dealing with employer

concerning terms and conditions ofemployment. It is the agent of theemployees of an appropriatebargaining unit.

PRINCIPLE OF AGENCY APPLIED

Principal employees Agent local/chapter Agent of agent federation

LEGITIMATE LABOR ORGANIZATION or

LABOR UNION

any labor organization duly registeredwith the Department of Labor andEmployment, and Bureau of LaborRelations.

Not every legitimate labororganization can act asbargaining representative and becertified as such. This is trueonly of a union that has won incertification election or has beenvoluntarily recognized by theemployer.

PURPOSE OF FORMATION OF LABORUNIONS: for securing a fair and justwages and good working conditions forthe laborers; and for the protection oflabor against the unjust exactions ofcapital


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17


MODES OF ACQUIRING LEGITIMACY FORLABOR ORGANIZATIONS

1. Registration with the BLR

(Independent Union)2. Affiliation with a legitimate laborfederation

[REGISTRATION REQUIREMENTS FORLABOR ORGANIZATIONS(as amended byDO 40-03)]

3. Application for registration4. Attachments name of the applicant labor

union, its principal address; the name of its officers and their

respective addresses;

o approximate number ofemployees in the bargainingunit where it seeks tooperate, with a statementthat it is not reported as achartered local of anyfederation or national union;

o the minutes of theorganizational meeting(s)and the list of employeeswho participated in the said

meeting(s);

o the name of all its memberscomprising at least 20% ofthe employees in thebargaining unit;

o the annual financial reportsif the applicant has been inexistence for one or moreyears, unless it has notcollected any amount fromthe members, in which casea statement to this effectshall be included in theapplication;

o the applicants constitutionand by-laws, minutes of itsadoption or ratification, andthe list of the members whoparticipated in it. The list ofratifying members shall bedispensed with where theconstitution and by-laws wasratified or adopted during

the organizational meeting.In such a case, the factualcircumstances of theratification shall be recorded

in the minutes of theorganizational meeting(s).(These are called reportorial

requirements)

The application for registration oflabor unions xxx, shall be certified underoath by its Secretary or Treasurer, as thecase may be, and attested by itspresident.

The attachments must now be inone(1) original copy and two (2)

duplicate copies which shall accompanythe application or notice, and submittedto the Regional Office or the Bureau.

A prescribed registration fee must bepaid before the issuance of thecertificate of registration

Where to file application forregistration:

1.For registration of independent laborunions, chartered locals, workers

associations shall be filed with theRegional office where the applicantprincipally operates. It shall beprocessed by the Labor Relations Divisionat the Regional office.

2. Applications for registration offederations, national unions or workersassociations operating in more than oneregion shall be filed with the bureau orthe regional offices, but shall beprocessed by the bureau.

MINISTERIAL DUTY OF THE BLRCOMPELLABLE BY MANDAMUS- toreview the application for registrationand not the issuance of a Certificate ofRegistration.

- After a labor organization had filedthe necessary papers and documents forregistration, it becomes mandatory forthe BLR to check if the requirementsunder Article 234 have been sedulouslycomplied with. If its application for

registration is vitiated by falsification


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18


and serious irregularities, especiallythose appearing on the face of theapplication and the supportingdocuments, a labor organization should

be denied recognition as a legitimatelabor organization. (ProgressiveDevelopment Corporation-Pizza Hut vs.Laguesma et al., GR No. 115077, April18, 1997)

PURPOSE OF REGISTRATION -Registration with the BLR is theoperative actthat gives rights to a labororganization.

It is the fact of being registeredwith the DOLE that makes a

labor organization legitimate inthe sense that it is clothed withlegal personality to claimrepresentational and bargainingrightsenumerated in Article 242or to strike or picket underArticle 263.

The requirement of registrationis NOT a curtailment of theright to association. It is merelya condition sine qua nonfor theacquisition of legal personalityby labor organizations,associations or unions and thepossession of the rights andprivileges granted by law tolabor organizations.

A valid exercise of police powersince the activities in whichlabor organizations, associations,or unions of workers are engagedaffect public interest, whichshould be protected. (PAFLU vs.Sec. Of Labor)

FEDERATION- any labor organizationwith at least 10 locals/chapters oraffiliates each of which must be dulycertified or recognized as the sole andexclusive collective bargaining agent ofthe employer they represent.

REQUIREMENTS BEFORE AFEDERATION CAN BE ISSUED ACERTIFICATE OF REGISTRATION:

Aside from the application, whichmust be accompanied with the

requirements for registration of a labor

registration, the application should alsobe accompanied by the following:

1. Proof of affiliation of at least 10locals or chapters, each of which

must be a duly recognized sole andexclusive collective bargaining agentin the establishment or industry inwhich it operates, supporting theregistration of such applicantfederation or national union;

2. The names and addresses of thecompanies where the locals orchapters operate and the list of allthe members in each companyinvolved.

A LOCAL UNION MAY AFFILIATE WITH

A FEDERATION - The procedure ofaffiliation would depend on whether theunion is independently registered or not.

REQUIREMENTS OF AFFILIATION (asamended by DO 40-03)1. Report of affiliation of

independently registered labor union2. Attachments:

a. resolution of the labor unionsboard of directors approving theaffiliation;

b. minutes of the general

membership meeting approvingthe affiliation;

c. the total number of memberscomprising the labor union andthe names of members whoapproved the affiliation;

d. the certificate of affiliationissued by the federation in favorof the independently registeredlabor union; and

e. written notice to the employerconcerned if the affiliating unionis the incumbent bargainingagent.

A union of supervisory employees mayaffiliate with a national federation oflabor organizations of rank and fileemployeesPROVIDEDthat:

a. the federation is not activelyinvolved in union affairs in thecompany; and

b. the rank and file employees are notdirectly under the control of the

supervisors


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ONCE AFFILIATED, A LOCALUNION MAY DISAFFILIATE FROM THEFEDERATION.

INDEPENDENTREGISTRATION CHARTERING

Obtainedby unionorganizersin anenterprisethroughtheir ownaction

A dulyregisteredfederation/national unionissues acharter to aunion in anenterpriseand registersthe charter

with theregionaloffice or theBIR.

Indepen-dentunion

Chapter/local

With legalpersonality of itsown

No legalpersonality ofits own aslong as it hasnot availeditself ofindependentregistration.

Application forregistration is filedwith andwill beacted

upon bythe DOLEregionalofficewhere theapplicants principaloffice islocated.

Chartercertificate isissued by afederation ornationalunion is filedwith the

regionaloffice or BLRwith 30 daysafter theissuance ofthe chartercertificate.


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San eda College of Law 20


INDEPENDENTLYREGISTERED

UNREGISTERED

a.HOW TOAFFILIATE

-by signing a contract ofaffiliation

-by application of the unionwith the federation for theissuance of a chartercertificate to be submitted tothe Bureau accompanied bythe following:a. Copies of its constitution

and by-lawsb. Statement of the set of

officers andBooks of accounts, all ofwhich must be certified bythe Secretary/Treasurer andattested to by the President.

In such case, the unionbecomes a local chapter ofthe Federation.

b. EFFECT OFDISAFFILIATIONTO THE UNION[local]

- would not affect its being alegitimate labor organization and therefore it wouldcontinue to have legalpersonality and to possess allthe rights and privileges of alegitimate labor organization.

upon severance, it wouldcease to be a legitimate labororganization and would nolonger have legal personalityand the rights and privilegesgranted by law to legitimateorganization, unless the local

chapter is covered by a dulyregistered collectivebargaining agreement. In thelatter case, the local orchapter will not lose its legalpersonality until theexpiration of the CBA. Afterthe CBA expires it will lose itslegal personality unless itregisters as an independentunion.

c. EFFECT OF

DISAFFILIATIONTO THE CBA

- an existing CBA would

continue to be valid as thelabor organization cancontinue administering theCBA

The CBA would continue to be

valid. The local chapter willnot lose its personality untilthe expiration of the CBA.After the CBA expires thelocal union looses itspersonality, unless it registersanew.


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d. ENTITLEMENTTO UNION DUESAFTERDISAFFILIATION

-labor organization is entitledto the union dues and not thefederation from which thelabor organizationdisaffiliated.

- union dues may no longerbe collected as there wouldno longer any labor union thatis allowed to collect suchunion dues from the

employees.Note: Follow the principle ofagency between federationand local.

Principal employees Agent local/chapter

Agent of agent federation

WHEN TO DISAFFILIATE

GENERAL RULE: A labor union maydisaffiliate from the mother union toform an independent union only duringthe 60-day freedom periodimmediately preceding the expiration ofthe CBA.

EXCEPTION: DISAFFILIATION BYMAJORITY

This happens when there is asubstantial shift in allegiance onthe part of the majority of the

members of the union. In sucha case, however, the CBAcontinues to bind the membersof the new or disaffiliated andindependent union up to theCBAs expiration date.

LIMITATION: disaffiliation should be inaccordance with the rules andprocedures stated in the Constitutionand by-laws of the federation.

A prohibition to disaffiliate inthe Federations constitution orby-laws is validintended for itsown protection.

REVOCATION OF CHARTER BY THEFEDERATION - by serving thelocal/chapter a verified notice ofrevocation, copy furnished the Bureau onthe ground of disloyalty or such othergrounds as may be specified in itsconstitution or by-laws.

The revocation shall divest thelocal chapter of its legal

personality upon receipt of thenotice by the Bureau, unless inthe meantime the local chapterhas acquired independentregistration. (Rule VIII Section 5of the IRR)

WORKERS ASSOCIATION: Associationof workers for the mutual aid andprotection of its members or for anylegitimate purpose other than collectivebargaining.

ART. 236. DENIAL OF REGISTRATION;APPEAL

- Decisions of the BLR denying theregistration of a labor organization isappealable to the Secretary of Laborwithin 10 calendar days from receipt ofthe decision, on groundsof:

a. grave abuse of discretion; orb. gross incompetence

- even before the onset of thefreedom period, disaffiliation maystill be carried out, but suchdisaffiliation must be effected by amajority of the union members inthe bargaining unit.

decision of the regional office or thebureau denying the application forregistration shall be:1. in writing2. stating in clear terms the reason forthe decision3. applicant union must be furnished a

copy of said decision


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ART. 238. CANCELLATION OFREGISTRATION; APPEAL

The certificate of registration of

any legitimate labor organization shallbe cancelled by the BLR if it has reasonto believe, after due hearing, that thesaid labor organization no longer meetsone or more of the requirements

prescribed by law.

GROUNDS FOR CANCELLATION:1. Failure to comply with any of the

requirements prescribed underArts. 234 (requirements forregistration of a labor union) &237 (addl. reqts. federation

registration) of the Code.

2. Violation of any of the provisionsof Art. 239 (grounds forcancellation of unionregistration) of the Code

3. Commission of any of the actsenumerated under Art. 241(rights and conditions ofmembership) of the code- Nopetition for cancellation basedon this ground 0may be granted

unless supported by at least 30%of all the members of therespondent labor organization orworkers association.

A pronouncement as tothe illegality of thestrike is not within themeaning of Art. 239 ofthe Code which providesfor the grounds forcancellation of unionregistration.

MODES OF APPEAL

EFFECT OF CANCELLATION OFREGISTRATION IN THE COURSE OFPROCEEDINGS

- Where a labor union is a partyin a proceeding and later it loses itsregistration permit in the course orduring the pendency of the case, suchunion may continue as a party withoutneed of substitution of parties, subjecthowever to the understanding thatwhatever decision may be renderedtherein will be binding only upon thosemembers of the union who have notsignified their desire to withdraw fromthe case before its trial and decision onthe merits. [Principle of Agencyappliedthe employees are theprincipals, and the labor organization ismerely an agent of the former,consequently, the cancellation of theunions registration, would not deprivethe consenting member-employees oftheir right to continue the case as theyare the considered as the principals]

DENIAL or CANCELLATION BY:

A. Regional Office

transmit records within 24hours from receipt of Memo of

Appeal

BUREAU decides within 20days from receipt of records

SUPREME COURT- Rule 65B. Bureau

transmit records within 24hours from receipt of memoof appeal

SEC. OF DOLE decides within20 days from receipt of

records SUPREME COURT- Rule 65

*Appeal by memo of appealwithin 10 days from receipt ofnotice.

GROUNDS:1. Grave abuse of discretion2. Violation of rules as

amended.


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ART 239. GROUNDS FORCANCELLATION OF UNIONREGISTRATION

GROUNDS FOR CANCELLATION OFUNION REGISTRATION:

A. FRAUDULENT ACTS

1. Misrepresentation, False statementor Fraud in connection with[RATIFICATION OF CONSTI/BY-LAWS]:

a. the ADOPTION ORRATIFICATION of theconstitution and by-laws or

amendments thereto,b. the MINUTES of ratification,

andc. the LIST OF MEMBERS who took

part in the ratification.

2. Misrepresentation, false statementor fraud in connection with the[ELECTION PAPERS]:

a. ELECTION of officers,b. MINUTES of the election of

officer and the list of voters, or

c. failure to submit thesedocuments together with the list ofthe newly elected/appointedofficers and their postal addresseswithin 30 days from election

B. INACTION OR OMISSION

1. Failure to submit the followingdocuments [RATIFICATION OFCONSTI/BY-LAWS]:

a. the adoption or ratification ofthe constitution and by-laws or

amendments thereto,b. the minutes of ratification, and

the list of members who tookpart in the ratification

*Within 30 days from adoption orratification of the constitution andby-laws or amendments thereto.

2. Failure to submit the AnnualFinancial report to the Bureau within30 days after the closing of everyfiscal year and misrepresentation,false entries and fraud in the

preparation of the financial reportitself;

3. Failure to submit a LIST OFINDIVIDUAL MEMBERSof the Bureau

once a year or whenever required bythe Bureau; and4. Failure to comply with the

REQUIREMENTS UNDER ARTICLES237.

C. UNLAWFUL ACTS1. Acting as a labor contractor or

engaging in the CABO SYSTEM, orotherwise engaging in any activityprohibited by law;

2. Entering into collective bargainingagreements which provide terms and

conditions of employment belowminimum standard established bylaw [CBA-BELOW MINIMUMSTANDARDS]; (SweetheartAgreements)

3. Asking for or ACCEPTINGATTORNEYS FEES OR NEGOTIATIONFEESfrom the employers;

4. Other than for mandatory activitiesunder this Code, checking off specialassessment or any other fees withoutduly signed individual writtenauthorization of the members

[UNLAWFUL ASSESSMENTS];

CANCELLATION OF REGISTRATIONA. FOR:

1. Legitimate individual laborunion.

2. Chartered local3. Workers association

WHERE TO FILERegional Director who hasjurisdiction over the placewhere respondent principallyoperates (30 days to decide).

WHO MAY FILE- Any party in interest, if ground

is:a. Failure to comply with any of

the requirements under Arts.234, 237 and 238 LC

b. Violation of any provision underArt. 239, LCTake note of the cancellationproceedings if violation is D and

J of Art. 239, LC


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REPORTING REQUIREMENTS OF LABORUNIONS AND WORKERS ASSOCIATIONS(Rule V DO 40-03)- It shall be the duty of every legitimatelabor union and workers association tosubmit to the Regional Office or Bureauwhich issued its certificate ofregistration or certificate of creation ofchartered local, as the case may be, two(2) copies of each of the followingdocuments:

a. any amendment to its

constitution and by-laws and theminutes of adoption orratification of such amendments,within 30 days from its adoptionor ratification;

b. annual financial reports within30 days after the close of eachfiscal or calendar year;

c. updated list of newly-electedofficers, together with theappointive offices or agents whoare entrusted with the handlingof funds, within 30 days aftereach regular or special electionof officers, or from theoccurrence of any change in theofficers of agents of the labororganization or workersassociation

d. updated list of individualmembers of chartered locals,independent unions and workersassociations within 30 days afterthe close of each fiscal year; and

e. updated list of its chartered

locals and affiliates or member

organizations, CBAs executedand their effectivity period, inthe case of federations ornational unions, within 30 days

after the close of each fiscalyear, as well as the updated listof their authorizedrepresentatives, agents orsignatories in the differentregions of the country.

RULES ON ADMINISTRATIVECANCELLATION OF CERTIFICATE OFREGISTRATION OF LLOs DUE TO NON-COMPLIANCE WITH THE REPORTORIALREQUIREMENTS:

WHENPROPER

Failure to comply with itslegal duty to submit thedocuments required tobe submitted under RuleV of DO 40-03 for 5consecutive years

WHO MAYFILE THEPETITION

1. Motu propio by theBureau2. Any party-in-interest

THREE-NOTICE

REQUIREMENT

1stNoticeBureau shall send byregistered mail with return

card notice for complianceindicating the documents itfailed to submit and thecorresponding period inwhich they were required,with notice to comply withthe said reportorialrequirements and to submitproof thereof to the Bureauwithin 10 days from receiptthereof2ndNoticeWhere no response isreceived by the Bureau

within 30 days from therelease of the 1st notice,another notice forcompliance shall be madeby the Bureau, with warningthat failure on its part tocomply with the reportorialrequirements within thetime specified shall causethe continuation of theproceedings for theadministrative cancellationof its registration3rdNoticeWhere no response is again

B. FOR:1. Federations2. National or Industry unions

3. Trade union centers

WHERE TO FILE- Bureau Director ( 30 days to

decide)

WHO MAY FILE- Only the members of the

Labor Organization concernedif grounds are actionsinvolving violations of Art.241, subject to the 39% rule


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received by the Bureauwithin 30 days from releaseof the 2nd notice, theBureau shall cause thepublication of the notice of

cancellation of registrationof the labor organization in2 newspapers of generalcirculation.

When no response isreceived by the Bureauwithin 30 days from thedate of publication or whenthe Bureau has verified thedissolution of the labororganization, it shall orderthe cancellation ofregistration of the labor

organization AND cause itsde-listing from the roster oflegitimate labororganizations

CHAPTER II

RIGHTS AND CONDITIONS OFMEMBERSHIP IN A LABOR

ORGANIZATION

ART. 241. RIGHTS AND CONDITIONSOF MEMBERSHIP IN A LABORORGANIZATION

GENERAL GROUPINGS OF THERIGHTS OF THE UNION MEMBERS:

1. Political right- the right to vote andbe voted for, subject to lawfulprovisions on qualifications anddisqualifications.

2. Deliberative and Decision-Making

Right - the right to participate indeliberations on major policyquestions and decide them by secretballot.

3. Rights Over Money Matters - theright of the members:

a. against imposition of excessivefees;

b. right against unauthorizedcollection of contributions orunauthorized disbursements;

c. to require adequate records ofincome and expenses;

d. to access financial records;e. to vote on officers

compensation;f. to vote on special assessment;g. to be deducted a special

assessment only with themembers written authorization.

4. Right to Information - the right tobe informed about:

a. the organizationsconstitution and by- laws,

b. the collective bargainingagreement, and labor laws.

Any violation of the above rightsand conditions of membershipshall be a ground forcancellation of union registrationor expulsion of an officer fromoffice, whichever is appropriate.At least 30% of all the membersof the union or any member ormembers specifically concernedmay report such violation to theBureau.

PERSONS WHO ARE PROHIBITED

FROM BECOMING MEMBERS/OFFICERSOF A LABOR ORGANIZATION UNDER THELABOR CODE (see also notes under Art.243 on persons who are not granted theright to self-organization):

1. Subversives or those engaged insubversive activities [Art.241(e)]

2. Persons who have been convictedof a crime involving moralturpitude shall not be eligible forelection as union officer or forappointment to any position in theunion. [Art. 241 (f)]

In general, a union is free toselect its own members, and noperson has an absolute right tomembership in a union.

LIMITATIONS [see discussion on unionsecurity arrangements under Art. 248]:

a. The labor org. cannot compel

employees to become members of


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their labor organization if they arealready member of rival union.

b. persons mentioned in Art. 241(e)

[subversives] of the labor codeare prohibited from becoming amember a labor organization.

c. members of religious organizationwhose religion forbademembership in labor organizationcould not be compelled into unionmembership.

REQUIREMENTS IN MAKING SPECIALASSESSMENTS or OTHEREXTRAORDINARY FEES (Art. 241 [n]):

1.there must be a WRITTENRESOLUTION

2.he resolution must have BEENAPPROVED BY A MAJORITY of allthe members

3.the approval must be AT A GENERALMEMBERSHIP MEETING DULY calledfor that purpose

The secretary of the organizationshall record the minutes of the

meeting including:

a. the list of all members present,b. the votes cast, andc. the purpose of the assessment or

fees

The record shall be attested bythe President.

Substantial compliance to theaforementioned procedure is notenoughthe requirements mustbe strictly complied with in viewof the fact that the specialassessment will diminish thecompensation of union members.(Palacol et. al vs. Ferrer-Callejaet. al)

CHECK-OFF - a method of deductingfrom an employees pay at prescribedperiod, the amounts due to the union forfees, fines or assessments.

NATURE AND PURPOSE OF CHECK-OFF: to facilitate the collection of

dues necessary for the unionslife and sustenance.

Union dues are the lifeblood ofthe union.

REQUIREMENTS WITH REGARD TOCHECK-OFFS (Art. 241 [o]):

- NO special assessment, attorneysfees, registration fees or any otherextraordinary fees may be checked offfrom any amount due an employeeWITHOUT an individual writtenauthorization duly signed by the

employee.

The authorization should specificallystate the:

a. amountb. purpose and the beneficiary

of the deduction.

Jurisdiction over check-off disputes iswith the Regional Director of the DOLE,not the Labor Arbiter

UNION DUES VS. AGENCY FEEUNION DUES AGENCY FEE

a. DEDUCTED FROM- members of aunion for thepayment of uniondues.

-non-members of thebargaining agent(union) for theenjoyment of thebenefits under theCBA.

b. CONSENT- May not bededucted from thesalaries of the unionmembers withoutthe written consentof the workersaffected

- May be deductedfrom the salary ofemployees withouttheir consent.

Agency fee cannot be imposed onemployees already in the service and aremembers of another union. If a closedshop agreement cannot be applied tothem, neither may an agency fee, as alesser form of union security, beimposed to them. (NABAILU vs. SanMiguel Brewery Inc)


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EXCEPTION TO THE REQUIREMENTOF INDIVIDUAL WRITTENAUTHORIZATION:

1.For mandatory activities providedunder the Code; and

2.When non-members of the unionavail of the benefits of the CBA.

- said non-members may be assessedunion dues equivalent to that paid bymembers

- only by a Board Resolutionapproved by majority of the members ina general meeting called for the purpose

Will the employees-members ofanother union not be considered as

free riders?

No since when the union bids to be thebargaining agent, it voluntarily assumesthe responsibility of representing allemployees in the appropriate bargainingunit.

SPECIAL ASSESSMENT vs. CHECK-OFFSPECIAL

ASSESSMENTS

CHECK-OFF

a. HOW APPROVED-by written resolutionapproved by majorityof all the members ata meeting duly calledfor that purpose

(Union Dues)-by obtaining theindividual writtenauthorization dulysigned by theemployee which mustspecify:a. amountb. purpose andc. beneficiary of

the deduction.b. EXCEPTION TOSUCH REQUIREMENT-no exceptionwrittenresolution is

mandatory at allinstances.

(Agency Fees)-not necessary if:1. For mandatoryactivities provided

under the Code; and2. When non-membersof the union avail ofthe benefits of theCBA. Said non-members may beassessed agency feesequivalent to thatpaid by members onlyby a Board Resolutionapproved by majorityof the members in ageneral meetingcalled for thepurpose.

CHAPTER III

RIGHTS OF LEGITIMATE LABORORGANIZATIONS

ART. 242. RIGHTS OF LEGITIMATELABOR ORGANIZATIONS

RIGHTS OF A LEGITIMATE LABORORGANIZATION [USERFOE]:

1.Undertake activities for benefit ofmembers2.Sue and be sued3.Exclusive representative of allemployees

4.Represent union members5.Furnished by employers of auditedfinancial statements6.Own properties7.Exempted from taxes

TITLE V

COVERAGE

ART. 243. COVERAGE ANDEMPLOYEES RIGHT TO SELFORGANIZATION

PERSONS/EMPLOYEES ELIGIBLE TOJOIN A LABOR ORGANIZATION FORPURPOSES OF COLLECTIVEBARGAINING:

1. All persons employed incommercial, industrial andagricultural (CIA)enterprises, and

2. In religious, charitable, medical or

educational (RCME) institutionswhether operating for profit or not

PERSONS/EMPLOYEES ELIGIBLE TOJOIN A LABOR ORGANIZATION FORMUTUAL AID AND PROTECTION(AIRSIW):

1. Ambulant,2. Intermittent,3. Rural,4. Self-employed people5. Itinerant workers and6. Workers without any definite

employers,


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PERSONS/EMPLOYEES WHO ARE NOTGRANTED THE RIGHT TO SELF-ORGANIZATION: (HEMACEN)

1. High-level government employees(E.O. 180 Sec. 3) (MANAGERIALGOVERNMENT EMPLOYEES)

2. Employees of internationalorganizations with immunities (ICMC vs.Calleja)

3. Managerial employees whose functions are normally

considered as policy-making ormanagerial

whose duties are of a highlyconfidential or highly technicalin nature (212 LC)

4. Members of the Armed Forces of thePhilippines, including police officers,policemen, firemen and jail guards(E.O. 180 Sec. 4);

5. Confidential employees (Metrolabvs. Confesor)

6. Employees of cooperatives who aremembers (Benguet Elec. Coop. vsCalleja)

7. Non-Employees (Rosario Bros. vs

Ople)

Foreigners validly working in thePhilippines [with permit from DOLE]can form labor organizations, providedthe same right to form, join or assist inthe formation of labor unions is alsogiven to Filipinos in their country oforigin. This embodies the principle ofreciprocity.

MAY SECURITY GUARDS FORM A LABORORGANIZATION?

YES. Under RA 6715, they may nowfreely join a labor organization of therank-and-file or that of the supervisoryunion, depending on their rank. (Meralcovs. Secretary of Labor)

EXTENT OF THE RIGHT TO SELF-ORGANIZATION1. To form, join and assist labororganizations for the purpose ofcollective bargaining throughrepresentatives of their own choosingand2. To engage in lawful concertedactivities for the same purpose- fortheir mutual aid and protection.

ART. 244. RIGHTS OF EMPLOYEES INTHE PUBLIC SERVICE

THE FOLLOWING ARE CONSIDEREDNEGOTIABLE IN GOCCs WITH ORIGINALCHARTER:

1.schedule of vacation and otherleaves

2.work assignment of pregnant women

GOVERNMENT OWNED OR

CONTROLLEDCORPORATIONS WITH

AN ORIGINALCHARTER

GOVERNMENT OWNED OR

CONTROLLEDCORPORATIONS

WITHOUTORIGINALCHARTER

a. LAW- Employees cannot stagestrikes since they are

governed by the CivilService Law. They areenjoined by Civil ServiceMemorandum CircularNo. 6, under pain ofadministrative sanctionsfrom staging strikes,demonstrations, massleaves, walkouts andother concertedactivities.

- The GOCC iscreated under

Corporation Code,then employees arecovered by the LaborCode. Thereforethe employees havethe same rights asthose as employeesof privatecorporations, one ofwhich is the right tostrike.

b. BARGAINING RIGHTS- Corporations withoriginal charterscannot bargain with

the governmentconcerning the termsand conditions oftheir employment.However, they cannegotiate with thegovernment on thoseterms and conditionsof employment whichare not fixed by law.Thus, they havelimited bargainingrights.

- The GOCC iscreated under

Corporation Code,being governed by theLabor Code, they canbargain with thegovernmentconcerning the termsandconditions oftheir employment.Thus, they haveunlimited bargainingrights.

c.PURPOSE OF

ORGANIZATION- Can only form, join orassist labor organizationfor purposes not contraryto law.

- Can form, join orassist labororganization forpurposes of CBA, etc.


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3.personnel growth and development4.communication system lateral and

vertical5.provision for protection and safely

6.provision for facilities forhandicapped personnel7.provision for first-aid medical

services for married women8.annual medical/physical examination9.recreational, social, athletic and

cultural activities and facilities(Rules implementing WO 180)

THE FOLLOWING ARE CONSIDEREDNOT NEGOTIABLE:

1. Those which require appropriation of

funds, such as:

a. increase in salaryemoluments and otherallowance not presentlyprovided for by law

b. facilities requiring capitaloutlays

c. car pland. provident funde. special hospitalization,

medical and dental servicesf. rice/sugar/other subsidies

g. travel expensesh. increase in retirement

benefits

2. Those that involve the exercise ofmanagement prerogatives, such as:

a. appointmentsb. promotionc. assignments/detailsd. reclassification/upgrading ofpositione. revision of compensationstructuref. penalties imposed as a result

of disciplinary actionsg. selection of personnel to

attend seminar, trainings,study grants

h. distribution of work loadi. external communicationlinkages

Government employees andemployees of government-ownedand controlled corporations with

original charters may bargain,

however, such bargaining poweris limited.

NOTE: The Public Sector Labor

Management Council (PSLMC), createdby E.O. 180 has jurisdiction to hearcharges of ULP filed by governmentemployees against their employer.

REASONS WHY EMPLOYEES IN GOCCsINCORPORATED UNDER THECORPORATION CODE ARE ALLOWED TOORGANIZE:1. they are not involved in public

service2. terms of employment are not fixed

by law

3. they are governed by the provisionsof the Labor Code not by the CivilService Law

ART. 245. INELIGIBILITY OFMANAGERIAL EMPLOYEES TO JOIN ANYLABOR ORGANIZATION; RIGHT OFSUPERVISORY EMPLOYEES.

MANAGERIAL EMPLOYEE -one who isvested with powers or prerogatives tolay down and execute managementpolicies and /or to hire, transfer,

suspend, lay-off, recall, discharge,assign or discipline employees.

MANAGERIAL EE UNDER LS AND LR

ManagerialEmployees underLabor Standards

ManagerialEmployeesunder LaborRelations

a. POWERS/DUTIES- primary duty consistsof the management ofthe establishment inwhich they are

employed or of adepartment orsubdivision

- See definitionabove

b. EXTENT- includes the officersand members of themanagerial staff

- does not includethe managerialstaff since they areclassified assupervisoryemployees [whomay/may not beeligible to join alabor union withthe rank and fileemployees]


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c. PURPOSE OFDEFINITION- to determine w/ncertain employees arecovered by Book III ofthe LC onConditions ofEmployment.

- to determine anemployeeseligibility injoining/forming alabor union.

Reason for ineligibility in thecollective bargaining process,managerial employees are the alter egoof the employers and thus they aresupposed to be on the side of theemployer to act as its representatives,and to see to it that its interests arewell protected. The employer is notassured of such protection if these

employees are union members. In the same manner, the labor

union might not be assured oftheir loyalty to the union inview of the evident conflict ofinterest.

The union can also becomecompany-dominated with the

presence of managerialemployees in Union Membership(Bulletin Publishing Co. Inc. vs.Hon. Augusto Sanchez).

SUPERVISORY EMPLOYEES - thosewho, in the interest of the employer,effectively recommend such managerialactions if the exercise of such authorityis not merely routinary or clerical innature but requires the use ofindependent judgment.

MAY SUPERVISORY EMPLOYEES FORM,ASSIST, JOIN A LABOR ORGANIZATION?

YES, on their own and NOT with therank-and-file employees (RA 6715).

The TEST IS: Do they exerciseindependent judgment which isnot subject to evaluation ofother department heads/othersuperiors? If in the affirmative,then they may-must form a labororganization of their own[separate from the rank and fileemployees]

If their responsibilities do notinherently require the exercise

of discretion and independent

judgment [or merelyroutinary/clerical in nature]then they may join the unioncomposed of the rank and file

employees.

NOTE: It is the nature of the employeesfunctions and not the nomenclature ortitle given to his job which determineswhether he has a rank and file ormanagerial status. (EngineeringEquipment, Inc. vs. NLRC)

MAY THEY AFFILIATE WITH AFEDERATION OF LABOR ORGANZATIONSOF RANK AND FILE EMPLOYEES?

YES. Provided that:a. the federation is not actively

involved in union affairs in thecompany; and

b. the rank and file employees arenot directly under the controlofthe supervisors (Adamson vs.Adamson)

EFFECT OF HAVING MIXEDMEMBERSHIP A union whosemembership is a mixture of thesupervisors and the rank and file is not

and cannot become a legitimate labororganization. It cannot petition for acertification election, much less ask tobe recognized as the bargainingrepresentative of employees.

CONFIDENTIAL EMPLOYEES -by thevery nature of their functions, theyassist and act in a confidential capacityto, or, have access to confidentialmatters of persons who exercisemanagerial functions in the field oflabor relations.Therefore, the rationalebehind the ineligibility of managerialemployees to form, assist or join a laborunion equally applies to them. (PhilipsIndustrial Devt Inc. Vs. NLRC)

- they are entrusted with confidence ondelicate matters, or with the custody,handling, or care and protection of theemployers property. Under thedoctrine of necessary implication,confidential employees are similarlydisqualified under Article 245. (Republic

Planters Bank vs. Torres)


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NOTE: The phrase in the field of laborrelations is important. It stresses labornexus, i.e., confidentiality of theposition is related or linked to labor

relations matters. Access to information which is

regarded by the employer to beconfidential from the businessstandpoint, such as financialinformation or technical tradesecrets, will not render anemployee a confidentialemployee. (SMC Supervisors &Exempt Union vs. Hon.Laguesma, et al.)

Confidentiality is not a matter ofofficial rank, it is a matter of job

content and authority. It is notmeasured by closeness to ordistance from top management,but by the significance of thejobholders role in the pursuit ofcorporate objectives andstrategies.

Every managerial position isconfidential because one doesnot become a manager withouthaving gained the confidence ofthe appointing authority. Butnot every confidential employeeis managerial; he may be asupervisory or even a rank-and-file employee.

ART. 246. NON-ABRIDGEMENT OFTHE RIGHT TO SELF-ORGANIZATION

THE RIGHT TO SELF-ORGANIZATIONSHALL NOT BE ABRIDGED MEANS:

It shall be unlawful for any person to:

a. restrain,b. coerce,c. discriminate against, ord. unduly interfere

- with employees and workers in theirexercise of the right to self-organization.

Any act intended to weaken ordefeat the right is regarded bylaw as an offense, which istechnically called unfair labor

practice.

TITLE VI

UNFAIR LABOR PRACTICES

CHAPTER I

CONCEPT

ART. 247. UNFAIR LABOR PRACTICES

NATURE OF UNFAIR LABORPRACTICES:

1. VIOLATE THE CONSTITUTIONALRIGHT of workers and employees toself-organization;

2. are INIMICAL TO THE LEGITIMATEINTERESTSof bothlabor and management, includingtheir right to bargain collectivelyand otherwise deal with eachother in an atmosphere of freedomand mutual respect

3. DISRUPT INDUSTRIAL PEACE; and4. hinder the promotion of healthy and

stable labor-management relationsand mutual respect [LABOR-MNGTRELATIONS-UNSTABLE];

2 ELEMENTS OF UNFAIR LABORPRACTICE:

1. employer-employee relationshipbetween the offender and theoffended

2. act done is expressly defined inthe Code as an act of unfairlabor practice

3. it is now considered a criminaloffense triable by the criminalcourt

NOTE: Prohibited acts are all related tothe workers' self-organizational right andthe the observance of a CBA, except Art.248 (f) dismissing or prejudicing anemployee for giving testimony under theCode.

ULP has a technical meaning.It is a practice unfair to labor,although the offender may eitherbe an employer or a labororganization


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It refers to acts opposed toworkers' right to organize.Without this, the act, no matterhow unfair, is not ULP.

It commonly connotes anti-unionism.It also refers to gross violation ofCBA provisions. Gross means theact is malicious and flagrant.

2 ASPECTS OF UNFAIR LABORPRACTICE:

CIVIL CASE CRIMINAL CASE

A. PERSONS LIABLE

1. Officers andagents ofemployer or

2. Labororganization,officers andagents

1. Agents andofficers who

participated or

authorized or ratifiedtheact.2. Agents,representatives, membersof the government board,including ordinarymembers

B. JURISDICTION

-Labor Arbiters ofthe NLRC

-MTC/RTC as the casemay be.

C. QUANTUM OF PROOF NEEDED

-substantialevidence

-beyond reasonable doubt[subject to prosecution

and punishment]

D. PRESCRIPTIVE PERIOD

- one year fromthe accrual of theULP act.

- one year from theaccrual of the ULP act,however it will besuspended once theadministrative case hasbeen filed and would onlycontinue running once theadministrative case hasattained finality.Final judgment in theadministrative

proceeding finding thatULP has been committedis a prerequisite in filinga criminal case for ULPN

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