LABREL 3rd ExamSeptember 11Wednesday September 11,2013 5pm

Today we begin with unfair labor practice. Special Law. (Distribute father ng hand outs). So what is unfair labor practice? unfair labor practice depends on WHO commits it. This is the unlawful intervention in an employees exercise of the right to self organization. The concept of unfair labor practice is found in Article 257.

Article 257 states: Concept of unfair labor practice and procedure for prosecution thereof.Unfair labor practices violate the constitutional right of workers and employees to self-organization, are inimical to the legitimate interests of both labor and management, including their right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect, disrupt industrial peace and hinder the promotion of healthy and stable labor-management relations.Consequently, unfair labor practices are not only violations of the civil rights of both labor and management but are also criminal offenses against the State which shall be subject to prosecution and punishment as herein provided.Subject to the exercise by the President or by the Secretary of Labor and Employment of the powers vested in them by Articles 263 and 264 of this Code, the civil aspects of all cases involving unfair labor practices, which may include claims for actual, moral, exemplary and other forms of damages, attorneys fees and other affirmative relief, shall be under the jurisdiction of the Labor Arbiters. The Labor Arbiters shall give utmost priority to the hearing and resolution of all cases involving unfair labor practices. They shall resolve such cases within thirty (30) calendar days from the time they are submitted for decision.Recovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code.No criminal prosecution under this Title may be instituted without a final judgment finding that an unfair labor practice was committed, having been first obtained in the preceding paragraph. During the pendency of such administrative proceeding, the running of the period of prescription of the criminal offense herein penalized shall be considered interrupted: Provided, however, that the final judgment in the administrative proceedings shall not be binding in the criminal case nor be considered as evidence of guilt but merely as proof of compliance of the requirements therein set forth. (As amended by Batas Pambansa Bilang 70, May 1, 1980 and later further amended by Section 19, Republic Act No. 6715, March 21, 1989)

"Unfair labor practice violate the constitutional right of workers and employees to self organization"- this is WRONG! It is not constitutional it is STATUTORY. If you remove Book V, there is no right to self- organization even if it exists in Article 13 Sec 3 of the Constitution. Why? Because it requires implementing legislation. Can you ask and go to congress, ask SC for an order to command congress to pass legislation for the right to self organization? You CANNOT! It is as stupid as going to the SC asking the court for an order to stop congress from legislating pork barrel. You know very very well that is a stupid suit. Why? You cannot answer if it you do not know the Constitution. Makaluloy ka. Wala ka nakasabot. Legislative power is plenary. Walay makapugong ana. Only the Bill of Rights. All the other rights mentioned outside the Bill of Rights, they are NOT rights, they are policies. Why? It needs implementing legislation.

So, "Unfair labor practice violate the constitutional right of workers and employees to self organization, are inimical to the legitimate interest interest of both labor and management,including their right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect, disrupt industrial peace and hinder the promotion of healthy and stable labor-management relations".

"Unfair labor practices, therefore, are NOT only violations of the civil rights of both labor and management but are also CRIMINAL OFFENSES against the State which shall be subject to prosecution and punishment as herein provided. "

"Subject to the exercise by the President OR by the Secretary of Labor and Employment of the powers vested in them by Articles 277 and 278 of this Code, the civil aspects of all cases involving unfair labor practices, which may include claims for actual, moral, exemplary, and other forms of damages, attorney's fees and other affirmative relief, shall be under the jurisdiction of the Labor Arbiters. The Labor Arbiter shall give outmost priority to the hearing and resolution of all cases involving unfair labor practices. They shall resolve such cases within thirty (30) calendar days from the time they are submitted for decision."

"Recovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code."

So, unfair labor practices,as a concept is a violation of the right to self-organization and the right to management. It can be committed against management. But it is not only violation of private lands, it is also a criminal offense. However, in the succeeding paragraphs, you will see that no criminal prosecution may be instituted without a final judgment finding that an unfair labor practice was committed, having been obtained in the preceding paragraph. That is the administrative aspect. During the pendency of such administrative proceeding, the running of the period of prescription of the criminal offense herein penalized shall be considered interrupted. So, final judgement in the administrative proceeding shall NOT be binding in the criminal case nor shall be considered as evidence of guilt but merely as proof of compliance of the requirements therein set. So first, you have to go through administrative proceeding. If you want to file a criminal proceeding that is unfair labor practice, you must first go to the administrative proceeding. If the administrative proceeding is dismissed, you can NEVER file a criminal proceeding. But if there is a finding that an unfair labor practice was committed, then now, you can proceed to file a criminal proceeding. Can you use the judgment in the administrative proceeding? NO. You have to start from zero. AB OVO. Go to the fiscal, the prosecutors office, hold the preliminary investigation, before you can file a criminal case. So, if you ask me, these first two paragraphs are ---. There is no decided case of criminal judgment in unfair labor practice. By the time na human ka sa imong administrative proceeding, na hurot na imong witnesses, pag file nimo criminal, wala na. Bahao na imong evidence. That is the sad part.

"No criminal prosecution under this Title may be instituted without a final judgement, finding that an unfair labor practice was committed, having been first obtained in the preceding paragraph. During the pendency of such administrative proceeding, the running of the period of prescription of the criminal offense herein penalized shall be considered interrupted. Provided, however, that the final judgment in the administrative proceedings shall not be binding in the criminal case nor be considered as evidence of guilt but merely as proof of compliance of the requirements therein set forth."

Now if you are asked, you know, there are commentators who would say that there are only two characters can commit unfair labor practice- either you are the employee or the employer. A third party neither an employee nor employer cannot commit unfair labor practice. Why? Because of the definition of employer under Article 219e.

Article 219 e states that:

So, if there is a person who acts against the employee, it means he is in favor to the employer. So, these commentators say, that makes him an employer. So they say, you are either an employer or an employee when it comes to unfair labor practice. If you persecute and employee to prevent him from organizing a union, are you not acting in favor of the employer? That makes you an employer because of this definition. So therefore, there are only two camps according to some commentators. Sadly, they are misguided :) . They are misguided because of Article 256.

Articlec 256 states that: Non-abridgment of right to self-organization.It shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with employees and workers in their exercise of the right to self-organization. Such right shall include the right to form, join, or assist labor organizations for the purpose of collective bargaining through representatives of their own choosing and to engage in lawful concerted activities for the same purpose for their mutual aid and protection, subject to the provisions of Article 264 of this Code. (As amended by Batas Pambansa Bilang 70, May 1, 1980)

So it says, it shall be UNLAWFUL FOR ANY PERSON to restrain, coerce, discriminate against or unduly interfere with employees and workers in their exercise of their right to self organization. Lets take a look at Article 258.

Article 258 states that: Unfair labor practices of employers.It shall be unlawful for an employer to commit any of the following unfair labor practice:To interfere with, restrain or coerce employees in the exercise of their right to self-organization;To require as a condition of employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs;To contract out services or functions being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their rights to self-organization;To initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization, including the giving of financial or other support to it or its organizers or supporters;To discriminate in regard to wages, hours of work and other terms and conditions of employment in order to encourage or discourage membership in any labor organization. Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment, except those employees who are already members of another union at the time of the signing of the collective bargaining agreement. Employees of an appropriate bargaining unit who are not members of the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such non-union members accept the benefits under the collective bargaining agreement: Provided, that the individual authorization required under Article 242, paragraph (o) of this Code shall not apply to the non-members of the recognized collective bargaining agent;To dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code;To violate the duty to bargain collectively as prescribed by this Code;To pay negotiation or attorneys fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute; orTo violate a collective bargaining agreement.The provisions of the preceding paragraph notwithstanding, only the officers and agents of corporations, associations or partnerships who have actually participated in, authorized or ratified unfair labor practices shall be held criminally liable. (As amended by Batas Pambansa Bilang 130, August 21, 1981)

"To interfere with restrain or coerce employees in the exercise of their right to self organization". The character now here is the employer. The character before was any person. If any person, how do you commit unfair labor practice? Restrain, coerce, discriminate against or unduly interfere. (Article 256)

If you are an employer, how do you commit unfair labor practice? interfere with restrain or coerce employees in the exercise of their right to self organization. (Article 258).

If you are the union, how do you commit unfair labor practice? To restrain or coerce employees in the exercise of their right to self organization. (Article 259)

Article 259 states: Only to restrain or coerce employee. In terms of scope, which is the broadest in terms of the commission of unfair labor practice? It is the EMPLOYER. If you are an employer, you just interfere, sa ato pang pinulongang na dinka.an kanang naang interfere with, paglabot-labot. Kung ikaw ay makikialam ( wow father tagalog, bigyan ng jacket! Haha) Kung makikialam ka, unfair labor practice na if you are an employer. That is very broad. interfere with restrain or coerce employees in the exercise of their right to self organization. (Article 258).

If you are third party, any person, neither an employer or labor organization, Article 256 says that it shall be UNLAWFUL FOR ANY PERSON to restrain, coerce, discriminate against or unduly interfere with employees and workers in their exercise of their right to self organization. You can interfere but NOT UNDULY. Kinsa man ni si Duly? (Acheche) unduly interfere.

If you are a labor organization, it is unfair labor practice for a labor organization, its officers, agents and representative to restrain or coerce employees in the exercise of their right to self organization. (Article 259). Why are you allowed to interfere? Because of you are not allowed to interfere, you cannot campaign.

Alright, I am distributing to you Rules on Solicitation because these are not widely known in Philippine jurisprudence. An employer can commit unfair labor practice by establishing policies and rules that interferes with the right to self organization . ( Barbie's note: I incorporated the Rules on Solicitation here with the discussions :) )What is the first rule?

1. A NO-SOLICITATION RULE OF UNION MEMBERSHIP OR THE PROHIBITION AGAINST DISTRIBUTION OF UNION LITERATURE DURING "WORKING HOURS" OR "WORKING TIME" OR WITHIN COMPANY PROPERTY IS PRESUMPTIVELY INVALID.

Why? Because the rule is overly broad. The rule is susceptible of an interpretation by employees that they were prohibited from engaging in protective activity during their free time, like break periods or meal times or neutral areas like comfort rooms, cafeteria, dressing or locker rooms.

Discussion:

when you say that no solicitation during working hours, the working hours of 8am-5pm working day, not all every minute is working hour, there are rest periods. There is a meal period. And during those rest periods, you cannot be controlled as to what will you say to your co-employee. Buyagon ba diay ka kung makigstorya ka about pacific rim nag sumbagay mga robot? That is not about work. That has nothing to do with your job. And yet the employer cannot interfere you and stop you from doing that. He cannot stop you from soliciting your own voice. If he stops you then he is interfering with your right to self organization. Because he has no legitimate business in the first place. If it is an assembly line, nag sit mo nagbuhat mo ug watches na timex, you are actually working, you are doing your work, and then you say, mag union ta ha. The employer can stop you because you are actually doing your work. But NOT during break periods, NOT in so called neutral areas. When you are out against the wall and watering that white labalo there ( father sounds so conyo, cute kaau..haha!) and you tell the one standing next to you: as the color of my urine is white/transparent as yours, lets join the union. Will you be prevented in campaigning? You CANNOT. There is no legitimate business. That is why, this law is overly broad. If you say: NO SOLICITATION.

2.EVIDENCE MAY BE PRESENTED TO OVERCOME THE PRESUMPTIVE INVALIDITY OR VALIDITY OF A NO-SOLICITATION OR NO-DISTRIBUTION RULE.

Example1: if solicitation causes constant bickering and dissension between pro-union and anti-union employees, evidence may be introduced to show that the rule os necessary to maintain production or discipline.

Example2: a valid no-solicitation rule may e unlawful if the employer simultaneously permits employees to engage during working hours in extensive solicitation for charitable or other purposes, or in solicitation on behalf of only a certain union or unions among a group of rival, competing unions or in anti union activities.

Discussion:

Example: just as workers get out of the company premises, kanang mag gawas na sila, mag atang man ang mga union organizers nga naay union literature, mga hand bills ba. "Panahon na! Kung hindi ngayon, kelan pa?!" Attention grabbing. Phrases that are already jaded. Overused. ( like im sorry and i promise?!.lamona, bet! Haha)

(father talked about Mahatir Mohammad) The underlying accountability that is necessary for a democracy is not for the officials, it is for the voters. The voters should be accountable for their choice. That is the rockbottom of accountability. Tan.awa, c ERAP, convicted na, gi.elect lang gihapon. BONG-BONG MARCOS, wala pa gani siluti, re.elect lang ghpaon. Buang man ang nag boto. Edi luto.on sa kaugalingong mantika... (Hahaa. brutally honest!) Look for nowhere, It is in our stars :) (talked about democracy in Spain).

Now, go back to the second rule:) . Even if it is presumed invalid, you are distributing papers just as the employees get out. Tier last step, they are already outside the company premises. Can you stop the union organizers? There is a sign there: No distribution of any materials. Is that valid? That is presumptively invalid because that is no longer company premises. But what happens? There are so many who just throw it away. Magkatag lang na dinha, tapos mag taligsik gamay, naay ma slide. Ma dak-dak ang sampot (whats sampot, butt?) Ma liable pa ang employer so the employer prohibits. Is that valid rule now? YES. That is a decided case in the US. It presupposes a natural ----. So ha, overboard rule may otherwise be rendered as valid upon presentation of evidence to the contrary.

3. IN DEPARTMENT STORES, THE GENERAL RULE AGAINST APPLYING NO-SOLICITATION RULES TO EMPLOYEES NON-WORKING TIME DOES NOT APPLY.Reason: Presence of customers in the working area.

Discussion:

Alright. Again, there are workplaces where a general NO SOLICITATION RULE CAN BE HELD VALID. Like in department stores. You can be prohibited from soliciting for union membership in neutral places and in neutral areas of the workplace. Why? Because these neutral areas are accessible to third parties especially the customers. And the customers when they hear talks about union formation, they maybe alarmed that there is conflict. They will not go to the supermarket. So they they can be legitimately prohibited even in neutral places since they are accessible to third parties. 4. HOSPITALS ARE JUSTIFIED IN LIMITING EMPLOYEE SOLICITATION AND DISTRIBUTION RIGHTS EVEN DURING NON-WORKING TIME, BUT ONLY IN PATIENT CARE AREAS.

Reason: Need to provide a tranquil atmosphere for its patient.

What is "patient care area"? - according to the US supreme court, a hospital could prohibit union activity in corridors and sitting rooms in areas near patient's room, or operating and therapy rooms , but it could NOT prohibit solicitation activity in a cafeteria, gift shop, and lobbies which were not frequented by patients.

Discussion:

Why? Because the patient, their visitors have access. And they will be alarmed.

5. DISTRIBUTION OF UNION LITERATURE BY EMPLOYEES ON COMPANY PROPERTY MAY NOT BE PROHIBITED BY RULE IN IN NON-WORKING AREAS AND DURING NON-WORKING TIME.

Discussion:

Exception: there are safety concerns.

6. DISTRIBUTION OF UNION LITERATURE BY NON-EMPLOYEE UNION REPRESENTATIVE WITHIN COMPANY PREMISES MAYBE PROHIBITED.

The US Supreme Court has ruled that a retail store's parking lot- even if it is open for public-- is not in the nature of public property, and a union does not have a free-speech right to enter it to solicit employees.

Discussion:

Why? They are non-employees. These union organizers do not have the right to self- organization vis a vis the employer. To have a right to self organization vis a vis the employer, you must have the employer-employee relationship. So, union organizer maybe prevented from get going inside the premises. What is the exception?

7. IN SITUATIONS WHERE THE COMPANY PROPERTY IS ISOLATED FROM A LARGER COMMUNITY, AS IN THE CASE OF COMPANY-OWNED TOWNS, SHIPS, LUMBER CAMPS, AND THE LIKE, AND EMPLOYEES CANNOT BE REACHED OUTSIDE THE PREMISES, UNION ORGANIZERS MUST BE ALLOWED REASONABLE ACCESS TO COMPANY PROPERTY.

Discussion:

The exception to Rule No.6 is isolated work places. Mining areas, agricultural businesses that are located in isolated places away from urban center. They live in areas where they work. So, if organizers are not allowed to go in there, there (employees) right to self organization will be rendered nugatory. The union organizers MUST be allowed to enter inside the premises.

If you are here in the city, you cannot be approached by the union organizer inside the workplace. All they have to do is to make atang sa gawas. Pag.gawas nimo, thats the time they can talk to you. Or they will go through telephone directory. They will look for your house, your telephone. Just like the call agents. So these are the rules on solicitations. These serves to further the right to self organization without defeating the legitimate business ends of the employer.

Now, i will give you an example of a Third Party committing unfair labor practice.

Let us say here is a Mayor who is known for his no nonsense stance on disturbance to peace and order. Say he is called by his sister and the sister tells him, you know, you have a nephew that you stood for in baptism but look what happened it to him. It took him 6years to finish high school and 6 years in college but did not finish it. Do you have any way of getting him to find work engagement because if you do not, you might end up arresting him. So the mayor told the sister, do not worry. Will recommend him to a job. So the Mayor called one of his contacts- hydro carbons, makers of gas mask. Gas mask, sa atong yanong pulong, naga baligya oling pero sa abroad baligya. The nephew was accepted. The nephew became regularized, permanent. The mayor taught he solved the problem. But the manager called him saying: Mayor, naunsa man ning imong gi recommend, nag una-una mag union. Nag hatag nag notice na mag strike sila. Nag unsa man diay na siya? Cgeg absent kai attend union meeting. Asa man siya karon? Nag meeting. So the mayor went to there and removed the nephew from the union meeting, put him in the police car to the police and puts him in jail. Police were instructed not to give him any food or drink. He is fighting the hands that feed him. What is that? RESTRAINT. Crime against the fundamental law. If you prevent someone from joining a meeting and you are a public official, you are guilty of committing a felony.

Can you say he (mayor) employer? No. He is a third party. What can you do against that mayor? You can include him in a case of Unfair Labor Practice. First, you have to file administrative unfair labor practice case. After 10years, then you can file a criminal case.

Unfair labor practice -LA-NLRC- CA- SC.

10years in our judicial system is not that bad :)

So, that is what happens. What the mayor has done is restraint. He restrained an employee from exercising his right to self organization. This act was made unlawful by Article 256.

Now, it is very easy of you are given facts and you see restraint or coercion. That is very easy to see. How about in words? When is employer's speech interference? The landmark case is INSULAR LIFE AND EMPLOYEES VS INSULAR LIFE. I hope you read that. In this case SC laid down the rule for employer's speech NOT TO BE unfair labor practice, for it to escape the taint of unfair labor practice, IT MUST NOT CONTAIN ANY PROMISE OF REWARD OR THREAT OF REPRISAL.

Suppose the employer calls the employee, we have heard that you are forming a union, we are one big family here, why are you forming a union? We are family, i am your father, you are my children. What do you want? Just tell me. And they say: we want a raise. Pila man ang raise? 20php a day. That is what you want? Naa koi e hangyo ninyo, akong e hatag kai katunga sa. I the employer allowed to that, using PERSUASIVE POWERS? NO, YOU CANNOT. You are putting a promise of reward. That is INTERFERENCE. If your speech contains a promise of reward, that is already interference.

THREAT OF REPRISAL. Tawag niya ang mga employees. Naka dungog na mo anang union, kabalo mi. Mga problemado naga duol sa union. Naay mga kauban ninyo na naga ingon sa akoa. Walay inyong gi.hagawhaw sa ngit-ngit na dili nako mahibsl.an sa kahayag. Pag bantay lang mo, kai mag abot ra ang panahon ninyo. What is that? Threat of reprisal. That cannot be. That is unfair labor practice right away. Your speech must not contain any promise of reward or threat of reprisal.

We will continue next meeting:)

September 12 part 1September 12, 2013 1st Period 5pm to 6pm

UNFAIR LABOR PRACTICE

Essentially it is a violation of the the employees right to selfe organization. Then the possible actors in this violation, there can be management, there can be a labor ________, that can violate the right of the employee to serve self organization. Why? Because the right to self organization is personal. The union does not out the right to self organization. Secondarily, it represents the right to self organization of itself. It is not right because it does not have the employer-employee relationship. Remember, an employee can only be a natural person. If you really felt for some, that cannot be an employee. How can it sure a good work if youre a juridical person? It cannot sure a good work. That is why the reason of an employer-employee relationship. That is the juridical person renders service and later on he will find out that there is some sustain as a management contract. A juridical person can render service to another person by way of managing that juridical person. But that is the corporation involved. And that is not the ______________ jurisdiction of they call ________________________________________________________.

(Tanang mga balaod naa sa inyong ulo .Nya maminaw ka sa storya sa imung client aron mahibaw kag asa ka padulong. Naay maghilak hilak, mag suko suko. You have to react to the emotional part. Its only me who can afford to tell that to the client. I will tell you the unadored truth which you will never feel from anybody. Why? Because I could not correct any feelings. So if you want to know the truth, go to that man there because he will tell you. )

Its headed by th past and present members of the organization. Every administration cannot account to respond.

The first accountability is the voter. He must be man of himself. There are certain people that will never be straight. We might be one of them.

UNFAIR PRACTICE OF SPEECH

Supposed an employer delivers his speech that is made by the lawyer who knows the law. And his speech is carefully acted such that it does not contain any promises. (boarder line speech). How will you characterized that speech? That is when Juris Prudence says there is boarder line speech specially to captive audience so called active audience. The speech shall be characterized according to the context and history of the employer. If the employer in the past has been speaking about preventing union organization or persecuting leaders, the character of the speech will be untied.

RULES ON EVIDENCE

You are taking at evidence. There is an action intelligence which is called the evidence that one take portraited to at one value is not evidence. What is that called? res inter allus acta rule. Is the law of the school in contervention with that partamental action continue? Namely that boarder line speech atTains the color of the history of the employer that matters the management. That is the exception of the true intervalue contract. You cannot use evidence of wrong doing in another occasion as the evidence of wrong doing in the present. What was used was the past history of the employer. That is the tanor of the speech. It is not a violation of res inter allus acta rule. It is the use of the history context in order to prove an act. THE RULING OF THE COURT IN CASES OF BOARDER LINE SPEECH.-- BOARDER LINE SPEECH ATTAINS THE COLOR OF THE HISTORY OF THE MANAGEMENT THAT MATTERS. THE HISTORY OF THE EMPLOYER IS USE TO GAINING WITH UNIONS IN THE PAST TO SHOW AN IMPROPER ACT. The speech which would otherwise be innocent speech is no longer innocent. It attains the color of undelivered speech.

The Supreme Court has said, the near interrogation of an employee as to his lineant activity is already unfair labor practice. You are already intervening. That is if you actually interrogate. That suppose, you make the employees believe that there are those among them that are spying. What is that? That is unfair labor. That is a threat. If you make the employees feeling that there are spies around to shadow them as to their union activities, then that is unfair labor practice.

Suppose you only make them believe, that there is no actual spy, is that unfair labor practice? YES!

Suppose an employer or his representative participate threat which obviously he cannot carry out unless threatening an employee, is that still an unlabor practice? YES!

What is the measure of an unfair labor practice? The measure is the same as the dangerous tendency. When the words in itself carry the threat, it can be. Then, it is already unfair labor practice because it is unfair to inquire that that which the law seeks to prevent. The threatening must first occur in order to evaluate.

The landmark is the case of insular life of employees person. This has happened in early 1960s. Ayala Avenue.

To interfere in the exercise of the rights of the organization means acting positively and negatively. It is prohibited to create a so called company union. If the company organizes the union itself, that is intervening. So what is your posture? Bi-standard!

If youre not neutral, you distruct the union activity, the union can prove that you are not neutral. Then you will be held to have committed unfair labor practice.

Normally, when the uion organizes activities, there is what is called a road sack phase underground. And then they will go underground. What is the role of the organization? ---To identify an issue!

Ex. Employees uniform prescribed by the management (having adjustments) . You are being discriminatory to the union. If your management are allowed to have an addition to the atire without acting on it, by the time union use it, you can no longer act on it. Why? Because you are discriminating.

RULE: kindness is not recorded by law. Generousity is not recorded by law. Kindness and generousity in employer-employee relationship only comes in literally at a point of time.

September 12 part 2

The concept of Unfair labor practice committed by third persons, unfair labor practice committed by management, ULP by labor organizations. What is the nature of the list of 258? It is exhaustive, if it is not found here, it is not ULP. The SC said, no, it is a list of the most common ULP not exhaustive. In the beginning, the formation of the union was outlawed by the provision in your revise penal code. They say, its an illegal to stop a business that is legitimate. When all the employees are convinced they will not work unless they receive this much. That is an illegal monopoly, according to lawyers. At that time they did not call it a strike, it call it a turn-up. So, once people organize they say we will not work unless you give us this much, they were sued for illegal machinations. They were arrested.

Now, the decisions of SC affirmed that but there was a lone dissenting opinion. His opinion later on became the material. His argument is very simple, if it is not a crime for one man to say I will not work if I am not given this much, why is it a crime all of the sudden if everybody says so?

Labor is not supposed to be placed in a disadvantage position just because it is secondary to capital. Capital is still primary, because its yesterdays labor which has not been consumed. And if it is secondary, nonetheless it is necessary. So just as capital want more profit, so also labor should be doled out more.

These are the basic sins of capital, listed in 258, these are not exhaustive. The generic way by which the employers commit ULP is letter A of 258. To interfere with, restraint or coerce employees in the exercise the right to self organization. The most critical is this. The second is to require as a condition of employment that a person shall not join an organization or resign from one. The short cut for that is the Yellow dog contract.

Third to contract out services for functions being performed by union members when such will interfere with, restrain or coerce employees in the exercise of the right to self organization. Shell Oil company, fired all its security guards, then contracted it out to an agency. This was the before the 1973 constitution. And the SC held that that is ULP. This is separate and distinct illegal contracting from the labor only contracting. What is labor only contracting? If what is contracted out are jobs that are directly related to the principal business and the one whom is contracted is a labor only contractor. If you contract out jobs in order to stop or because they are exercising the right to self-organization, this is the offense, 258 letter B.

Suppose you have security guards and all of them are employees of the company but then as they retire, you replace them with agencies, is that illegal contracting? No. the reduction in security guard is the result of attrition, retirement.

In subsequent decided cases, SC has said, if a department is legally closed all the workers are separated from service and they are given separation pay, then subsequently contract workers are brought in to fill in those jobs? Is the a mark of ULP? The SC has said, for as long as the separation was legal, let us say uhhhhhh, lay off or to reduce costs, that is not ULP.

Then the 13th, to initiate, dominate, assist or otherwise interfere with the formation or administration of a labor organization including the giving of financial or other support to it or its organizers. This is the creation of a company union. I told you that interference with the right to self-organization can be negative and can be positive. Now what happens, youre the employer, youre the personnel manager, pasko, duol and union, mangayo ug contribution lechon kay mag.party, and yet good relationship with the union goes a long way to establish the work force.

How do you help the union without running about on 258 letter D and the answer is you provide for it in the CBA. If you provide it, the more particularized it is, management agree to provide the union with space, and etc., that legal. Now if you do not want to be committed to the union, how do you make your aid to the union not an ULP as it is said in 258 D but a compliance with the CBA? You put a general clause. Management agrees to provide the union with such assistance, financial, in kind, moral, in such manner and such quantity as is agreeable to the union. So that covers all that things. It does not become ULP. It becomes a matter of compliance with a provision in the CBA.

258 E, to discriminate, in regard to wages, hours of work and other terms and condition of employment in order to encourage or discourage membership in any labor organization. Suppose you provide transportation, you stop that kay nasuko ka. You run afoul with art. 258, you cannot discriminate. You change your behavior towards the union because of their exercise. You cannot do that.

What is the exception? The next sentence is the exception, nothing in this code or in any other laws shall stop parties from requiring membership in a recognized CB agent as a condition for employment except those employees who are members of another union at the time of the signing of the CBA.

That is not considered as discriminatory, it is allowed. However even if you have valid union shop agreement, what are the exceptions to the coverage? At least three.

1st, those who are already members of another union before the encumbent begin an exclusive bargaining. You cannot force them to be member of the exclusive bargaining agent if they are already members of another union.

2nd, the exception given in Victoriano vs. Elizalde, if you belong to a religious group whose tenement prohibit you from joining a union. The case of Iglesia ni Cristo. Why? SC said, that freedom of religion, right to choose ones religion is more superior. But here comes the case of Rufina vs. Secretary, what happens tthere, in the first certification election, members of INC said we are not going to join because we are not allowed to join. So they did not join. They were not forced to become union members. Subsequently, the 60 day freedom period, the INC formed a union, and they file a certification election, and they won. So, there was aprotest. The SC said, there is nothing objectionable, if they break their religion, that is between them and their religion. They can subscribe to what the law grants.

We have discussed already agency clause, that is also a form of union security clause. Now, letter F, to dismiss, discharge or otherwise prejudice or discriminate against an employee for having given testimony under this code. If you are complaining in labor standards, you go to 118. if you are dismissed for money claims for being underpaid. If you are fired or discharged because of exercise of the right to self organization, you go to 258. the trouble is 258F prescribes in 1 year. 118 non-payment or underpayment prescribes in 3 years if it is money claims. If it is dismissal, it is 4 years.

This is the difference. Now what happens if you are discharged because of your exercise of the right and you are not able to file an illegal dismissal case, within 1 yr? you can still file a case, this time based on ordinary illegal dismissal under the 279 which is now 293. in cases of regular employment the employer shall not terminate except for a just cause. When you are dismissed because of the right to exercise self-organization, that is without cause, that is ULP. If you file it, but it you cannot, you cannot, you still have still 3 years to go. To file an ordinary illegal dismissal case. But mind you, the transformation is only one way. An ULP dismissal can be made to an ordinary dismissal case, but an ordinary illegal dismissal cannot be made to ULP dismissal.

Letter G, to violate the duty to bargain collectively as prescribed by this code. Duty to bargain, remember, it is not a violation of the duty to bargain if you keep insisting that you do not want to bargain even a mandatory subject of bargaining agreement. That is a legitimate position as to continue to bargain that you do not want to bargain. They call it stone walling.

Letter H, to pay negotiation and attorneys fees in the union or its officers or agents as part of the settlement of any issue in CB or any other basic right. An employer who has something to give but does not want to be saddled with a permanent obligation, he gives it as a signing bonus. That is not illegal. What is sought to be stopped here, is naglisod namo ug bargain, unya nakahibawo ka nga ang union president nagtukod diay ug balay unya naundang ang construction, padala daun kag truck nga hollowblocks. 259E, ULP committed by labor organization, to ask negotiation or atty fees from an employer as part of settlement, the moment the union officers ask for something for themselves, they are already committing ULP. If management will propose that, its ULP, if management pays, igo sila sa 258 H, but to the union it is to ask for.

Letter I, to violate the duty of the bargaining agreement, to be ULP and it is a violation of a bargaining agreement, it must be gross. It means, flagrant or malicious refusal to comply with the economic provisions of the CBA. Art. 238, privilege communication informational statements made at concialtion proceeding shall be treated as such and shall not be used as evidence in the NLRC. Concialators and similar officials shall not testify in any court or body regarding any matter taken at concialation proceedings conducted. Usually when there is a labor dispute, and they cannot agree, the NCLB immediately steps in and hold concialation proceedings. They do not decide, they help the parties to arrive at a mutually agreeable solution. That is not arbitration. That is confidential. If you are the employer and you want to threathen, that is the time you do it. 238. why because it cannot be used in the commission. The conciliators who are there cannot testify. So if you are asked, when can you utter ULP speech that maintains any promise of reward or threat of reprisal, this is it.

September 18Wednesday September 18,2013 5pm

Alright, we will finish unfair labor practice this afternoon.

I told you that 90% of unfair labor practice is unfair labor practice by the employer. Article 259 is ULP by the Labor Organization. Unlike the employer, the labor organization is authorized to intervene/ interfere in the exercise of the right to self organization. So, there remains just two ways by which a labor organization commits unfair labor practice and that is by way of restraint or coercion.

Article 259 says: Unfair labor practices of labor organizations.It shall be unfair labor practice for a labor organization, its officers, agents or representatives:To restrain or coerce employees in the exercise of their right to self-organization. However, a labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of membership;To cause or attempt to cause an employer to discriminate against an employee, including discrimination against an employee with respect to whom membership in such organization has been denied or to terminate an employee on any ground other than the usual terms and conditions under which membership or continuation of membership is made available to other members;To violate the duty, or refuse to bargain collectively with the employer, provided it is the representative of the employees;To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other things of value, in the nature of an exaction, for services which are not performed or not to be performed, including the demand for fee for union negotiations;To ask for or accept negotiation or attorneys fees from employers as part of the settlement of any issue in collective bargaining or any other dispute; orTo violate a collective bargaining agreement.The provisions of the preceding paragraph notwithstanding, only the officers, members of governing boards, representatives or agents or members of labor associations or organizations who have actually participated in, authorized or ratified unfair labor practices shall be held criminally liable. (As amended by Batas Pambansa Bilang 130, August 21, 1981)

Discussion:

Article 259a states: To restrain or coerce employees in the exercise of their right to self-organization. However, a labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of membership;

Suppose one of the employees who has already joined the union is soliciting union membership and the non-union member is not convinced. Suppose the union member tells this non-union members that if our squad, we will vote for the union in the coming certification election. For those who will not join, we will not talk to you anymore, we will not consider you as our friends . If something happens to you, we will just leave you. What is that? Is that unfair labor practice? Is that a way of coercion? You know, not every threat is an actionable threat. From your RPC, you know that light, grave threatens depends on the legal characterization of the threat itself. If you threaten somebody with death, that is grave threat because the threat is grave, if what was told to you is ---, that is light threat. Even beyond those kind of threats, there are many threats that are not actionable. When the wife threatens the husband that she will not talk to him, you know what is the remedy of the husband, certainly not judicial. (Oiiee.father!) so also in labor relations. When the union threatens an employee for it to be unfair labor practice, the threat must be itself illegal. But if the threat is dili naka tingugan, dili naka apil sa kalihukan, those kinds of threats are not unfair labor practice. Those are just ways of interfering, soliciting, convincing employees to join the union. And that is allowed on the part of the union and its officers. So likewise,if the union leaders stands up and makes a promise which really cannot be complied with, union leaders tell the the employees you better enroll in the driving school because the moment we win, we will ask the management is a car for every worker. When they that, obviously, that cannot be granted. Is that unfair labor practice? I do not think so. That will only be interpreted in the Civil Code as exaggeration of ----. Why? Because the moment you put reasonableness as a yardstick, you render it impossible for the standards of labor to be improved. You must remember that any one time the standards were not like that until somebody will think of the impossible. That what JBL Reyes says in LA SUERTE VS CA. At any one time, the things that labor enjoys today were once impossible dream until somebody comes up and makes it a demand. So if you put a demarcation of acceptability or demarcation of realism, then you are limiting what labor can aspire to and you will not be improved.

Once again, there is a big leeway to labor speech. A leeway which is not enjoyed by management. Remember management cannot talk to labor in a way that contains any promise of reward or threat of reprisal. Labor can talk that way to its audience which are the same audience of management. They can talk that way and it does not constitute as unfair labor practice speech.

Article 259b states: o cause or attempt to cause an employer to discriminate against an employee, including discrimination against an employee with respect to whom membership in such organization has been denied or to terminate an employee on any ground other than the usual terms and conditions under which membership or continuation of membership is made available to other members;

The short hand for this is unlawful use of the union security clause. You have seen the decided cases. GENERAL MILLING VS CASIO, EDU VS NLRC. The union's action which is arbitrary against a union member, what is the remedy of the union member? The remedy is to being a complaint against the union on the strength on the rights and conditions of membership in a labor organization. Where does he brings the complaint? He brings the complaint with the BLR, the Med Arbiter. He DOES NOT bring it to the Labor Arbiter. He brings it to the BLR.

If management comes in, and becomes a party to the discriminatory application of the union security clause, what happens? There is a violation of the employee employer contract. So now the union can sue management.unfair labor practice dismissal or simple illegal dismissal. Where does he bring the action? With the Labor Arbiter. On the basis of the jurisdiction of the Labor Arbiter which is found in Article 224 sub par A par 1. Unfair Labor Practices.

Article 224 states: Jurisdiction of the Labor Arbiters and the Commission.Except as otherwise provided under this Code, the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the following cases involving all workers, whether agricultural or non-agricultural:Unfair labor practice cases;Termination disputes;If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment;Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations;Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts; andExcept claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding five thousand pesos (P5,000.00) regardless of whether accompanied with a claim for reinstatement.The Commission shall have exclusive appellate jurisdiction over all cases decided by Labor Arbiters.Cases arising from the interpretation or implementation of collective bargaining agreements and those arising from the interpretation or enforcement of company personnel policies shall be disposed of by the Labor Arbiter by referring the same to the grievance machinery and voluntary arbitration as may be provided in said agreements. (As amended by Section 9, Republic Act No. 6715, March 21, 1989)

Remember Article 224 a 1 Jurisdiction of the Labor Arbiter and the Commission unfair labor practice. You bring an action against the management for terminating you by wrongly and illegally applying the union security clause together with management is impleaded with the union. Does the Labor Arbiter now have jurisdiction with the union? YES. Because the main cause of action is now unfair labor practice and termination. 1 & 2 of Article 224 and incidental to that is the union being a co principal with management in the termination that is an unfair labor practice, you bring that with the Labor Arbiter.

If management is still not included, you have a compliant against union, that is called an intra-union controversy. Where do you bring that action? You bring it with the Med Arbiter. What is the duty of management? First, He must make sure that the union security clause is up ----. Second, That the union has compelled management in writing to apply the union security clause. And third, that the union has substantial evidence to terminate the employee. If it does not have then management should not go along in the request of the union. If he goes along, even if there is no substantial evidence, he commits unfair labor practice against the employee and the union too commits unfair labor practice. On the part of the union, he is guilty of unfair practice under Article259 b.

Now what about disloyalty to the union. Because when the union member is expelled for disloyalty, and subsequently he is terminated by management at the insistence of the union that the union security clause is not applicable, that is when there is a correct application of the union security clause. The wrongful application of the union security clause ends up in unfair labor practice. The correct use in a finding that the union member is guilty of disloyalty. If you want to find out what is the correct application of the union security , you read the case of VILLAR VS INCHONG April 20,1983. Inchiong is not a lawyer but he prided himself of knowing labor law like aback of his hand. So many lawyers are so ignorant of the labor code. And he is correct because labor ony became a bar examination subject matter already in the late 1960. Being the Deputy or Undersecretary of Labor, he was reviewing so many labor decisions of the NLRC because at that time, decisions of the NLRC was still reviewable by the Secretary. He is the same ad Blas Ople. Blas Ople was worst. He was neither a lawyer nor did he even finished college. But he was vice president of the International Labor Organization. He wrote so many treaties.

Article 259c states: To violate the duty, or refuse to bargain collectively with the employer, provided it is the representative of the employees;

Representatives of the employees of the bargaining unit that makes him the exclusive bargaining agent. So you commit this unfair labor practice if you refuse to bargain and you are an exclusive bargaining agent. What os an example? Suppose you abandon the union after the signing of the CBA, you go to management and you say, I want the union dues in advance for 5years. If you give it to us, we sill not bother you anymore.

So management give union dues in advance. The union disappears. What happens to the employees? They have no union anymore who will espouse their grievances. That is when many employees in the bargaining unit will universally abandon also the union. Ky they will disaffiliate and find a new federation to espouse their cause. Now, what happens when the new federation comes around and asks management for the monthly check off of the union dues? Management will say, gihatag n,ana namo. WHAT MANAGEMENT DID, IT DID IT AT ITS OWN RISK. So, remember when there is refusal to meet for grievances that is part still of collective bargaining. According to the Sc in REPUBLIC SAVINGS BANK vs CIR, collective bargaining does not end with the signing of the CBA. You continue to bargain, you continue meet promptly and expeditiously to adjust grievances. So, a union that abandons is guilty of refusing to bargain under Article 259c.

Duty to bargain. Violation of the duty to bargain. If a union insist on bargaining about the non-mandatory subject of bargaining. And it makes it a condition for sitting at a bargaining period then that is a violation of the duty to bargain. But if you insist on barging on a non mandatory subject of bargaining and you continues to bargain, it is still not a violation of the duty to bargain. Hangyo na nah.

Article 259d states: To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other things of value, in the nature of an exaction, for services which are not performed or not to be performed, including the demand for fee for union negotiations;

These are kickbacks. I told you that the teamsters in the USA is the most associated with the mafia. They got guns. In Labor, they don't have guns, they have numbers or warm bodies. They came to influence the labor movement especially the unskilled labor and stevedore. Ever since there has been these containerized ports, the ports has now become one of the skilled industry. Kanang mga crate operators unionized na sila, unsy tawag sa karganahan sa cartoon. Unsay tawag ana? Crates sa english. Sa bisaya. Unsa man na? Tarima. Kung nalimping and nido ug milo, pag deliver sa nccc, dili dawaton kai lumping. Ibutang na nimo sa stante, wala nay mag get ana. Edi lost na. Unsay gamit ans? Ibaligya sa subasta at a lower price. Unsaon pagdakop na naigo man. Mo nay sabotahe, for services not rendered. Dili nako lumpingon ang imong kargamento, hatag na dayon ug kickbacks. For services not rendered. Sometimes this can be very disastrous. So that is kickbacks.

Article 259e states: To ask for or accept negotiation or attorneys fees from employers as part of the settlement of any issue in collective bargaining or any other dispute;

I discussed this already with you when we were talking about unfair labor practice on the part of the employer. On the part of the employer, it is unfair labor practice to pay, on the part of labor organization, it is unfair labor practice to ask. Remember, they are asking from the union or the officers, they are NOT asking for everybody. This is called FEATHER BEDDING. The trouble of this is it is a medieval figure of speech. When you feather bed with something, you try to make the bed comfortable. Dapat dili ghi. Ang sulod sa kutchon, feathers. Pagmahumok or makatulog ka, mao nay feather bedding. Mangayo gani kag negotiation fee, ayon malumo imong kaing kasing, and mag agree ka sa negotiations. Pero atong analogy dinhi, atong figures of speech, unsa man? Pang padulas. Feather bedding. To grease with oil so that the machine will run well. That is the american ordinary analogy, figures of speech. Pangpadulas.Lagay. Anong ilagy jan? Pngpadulas. Aron mag dagan or maglihok. Sa tagalog, lagay.(hahaaa UNLI sa lagay father?!)

Article 259h states: To violate a collective bargaining agreement.

It must an economic provision and the violation must be gross in nature. It is flagrant or malicious refusal of the economic provision.

Final paragraph of Article 259 states: The provisions of the preceding paragraph notwithstanding, only the officers, members of governing boards, representatives or agents or members of labor associations or organizations who have actually participated in, authorized or ratified unfair labor practices shall be held criminally liable. (As amended by Batas Pambansa Bilang 130, August 21, 1981)

Alright we are doney with unfair labor practice. We now begin with strikes and lock outs.

STRIKES AND LOCKOUTS

Strikes and lockout are made up of four provisions.

We now begin with strikes. Article 277- strikes, picketing and lock-outs. Article 278- prohibited activities. Article 279- improved offer balloting. Article 280- rendered unconstitutional.

Article 277 states: Strikes, picketing and lockouts.It is the policy of the State to encourage free trade unionism and free collective bargaining.Workers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection. The right of legitimate labor organizations to strike and picket and of employers to lockout, consistent with the national interest, shall continue to be recognized and respected. However, no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intra-union disputes.In case of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lockout with the Ministry at least 30 day before the intended date thereof. In cases of unfair labor practice, the period of notice shall be 15 days and in the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members. However, in case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting, where the existence of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately. (As amended by Executive Order No. 111, December 24, 1986)The notice must be in accordance with such implementing rules and regulations as the Minister of Labor and Employment may promulgate.During the cooling-off period, it shall be the duty of the Ministry to exert all efforts at mediation and conciliation to effect a voluntary settlement. Should the dispute remain unsettled until the lapse of the requisite number of days from the mandatory filing of the notice, the labor union may strike or the employer may declare a lockout.A decision to declare a strike must be approved by a majority of the total union membership in the bargaining unit concerned, obtained by secret ballot in meetings or referenda called for that purpose. A decision to declare a lockout must be approved by a majority of the board of directors of the corporation or association or of the partners in a partnership, obtained by secret ballot in a meeting called for that purpose. The decision shall be valid for the duration of the dispute based on substantially the same grounds considered when the strike or lockout vote was taken. The Ministry may, at its own initiative or upon the request of any affected party, supervise the conduct of the secret balloting. In every case, the union or the employer shall furnish the Ministry the results of the voting at least seven days before the intended strike or lockout, subject to the cooling-off period herein provided. (As amended by Batas Pambansa Bilang 130, August 21, 1981 and further amended by Executive Order No. 111, December 24, 1986)When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return-to-work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary of Labor and Employment or the Commission may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same.In line with the national concern for and the highest respect accorded to the right of patients to life and health, strikes and lockouts in hospitals, clinics and similar medical institutions shall, to every extent possible, be avoided, and all serious efforts, not only by labor and management but government as well, be exhausted to substantially minimize, if not prevent, their adverse effects on such life and health, through the exercise, however legitimate, by labor of its right to strike and by management to lockout. In labor disputes adversely affecting the continued operation of such hospitals, clinics or medical institutions, it shall be the duty of the striking union or locking-out employer to provide and maintain an effective skeletal workforce 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 twenty four (24) hours from knowledge of the occurrence of such a strike or lockout, jurisdiction over the same or certify it to the Commission for compulsory arbitration. For this purpose, the contending parties are strictly enjoined to comply with such orders, prohibitions and/or injunctions as are issued by the Secretary of Labor and Employment or the Commission, under pain of immediate disciplinary action, including dismissal or loss of employment status or payment by the locking-out employer of backwages, damages and other affirmative relief, even criminal prosecution against either or both of them.The foregoing notwithstanding, the President of the Philippines shall not be precluded from determining the industries that, in his opinion, are indispensable to the national interest, and from intervening at any time and assuming jurisdiction over any such labor dispute in order to settle or terminate the same.Before or at any stage of the compulsory arbitration process, the parties may opt to submit their dispute to voluntary arbitration.The Secretary of Labor and Employment, the Commission or the voluntary arbitrator shall decide or resolve the dispute, as the case may be. The decision of the President, the Secretary of Labor and Employment, the Commission or the voluntary arbitrator shall be final and executory ten (10) calendar days after receipt thereof by the parties. (As amended by Section 27, Republic Act No. 6715, March 21, 1989)

Article 278 states: Prohibited activities.No labor organization or employer shall declare a strike or lockout without first having bargained collectively in accordance with Title VII of this Book or without first having filed the notice required in the preceding Article or without the necessary strike or lockout vote first having been obtained and reported to the Ministry.No strike or lockout shall be declared after assumption of jurisdiction by the President or the Minister or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout.Any worker whose employment has been terminated as a consequence of any unlawful lockout shall be entitled to reinstatement with full backwages. Any union officer who knowingly participates in an illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status: Provided, That mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the employer during such lawful strike.No person shall obstruct, impede, or interfere with, by force, violence, coercion, threats or intimidation, any peaceful picketing by employees during any labor controversy or in the exercise of the right to self-organization or collective bargaining, or shall aid or abet such obstruction or interference.No employer shall use or employ any strike-breaker, nor shall any person be employed as a strike-breaker.No public official or employee, including officers and personnel of the New Armed Forces of the Philippines or the Integrated National Police, or armed person, shall bring in, introduce or escort in any manner, any individual who seeks to replace strikers in entering or leaving the premises of a strike area, or work in place of the strikers. The police force shall keep out of the picket lines unless actual violence or other criminal acts occur therein: Provided, That nothing herein shall be interpreted to prevent any public officer from taking any measure necessary to maintain peace and order, protect life and property, and/or enforce the law and legal order. (As amended by Executive Order No. 111, December 24, 1986)No person engaged in picketing shall commit any act of violence, coercion or intimidation or obstruct the free ingress to or egress from the employers premises for lawful purposes, or obstruct public thoroughfares. (As amended by Batas Pambansa Bilang 227, June 1, 1982)

Article 279 states: Improved offer balloting.In an effort to settle a strike, the Department of Labor and Employment shall conduct a referendum by secret ballot on the improved offer of the employer on or before the 30th day of the strike. When at least a majority of the union members vote to accept the improved offer the striking workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement.In case of a lockout, the Department of Labor and Employment shall also conduct a referendum by secret balloting on the reduced offer of the union on or before the 30th day of the lockout. When at least a majority of the board of directors or trustees or the partners holding the controlling interest in the case of a partnership vote to accept the reduced offer, the workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement. (Incorporated by Section 28, Republic Act No. 6715, March 21, 1989)

Article 280 states: Requirement for arrest and detention.Except on grounds of national security and public peace or in case of commission of a crime, no union members or union organizers may be arrested or detained for union activities without previous consultations with the Secretary of Labor.

Let us go to the definition of a Strike found n Book V, Chapter 1, Article 219o.

Article 219o states: "Strike" means any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute.

There are three elements in that decision:

A. Temporary stoppage of work.B. By the concerted actions of the employees. C. It is a result of an industrial or labor dispute.

Discussion:

A. Temporary stoppage of work

B. By the concerted actions of the employees

- So the perpetrators/actors of the strike cannot be one. It mist be concerted. Or such a number that it should put a stop.

C. It is a result of an industrial or labor dispute

- what is an industrial or labor dispute? Look at Article219l.

Article219l states: Labor dispute- includes any controversy or matter concerning terms or condition of employment or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.

So, labor dispute involves either terms or conditions of work or the right to self organization. If it dies not involve that, it is not a labor dispute. If you have a fight with the employer on that then the result is not a strike. Piston, that is the organization of the PUJ drivers. Every time the price of gasoline goes up, they declare a so called strike. And they meet with the operators and then, together with the operators, they go and meet with the Secretary of the Department of Labor. Now, they stopped working. Is there a temporary stoppage of work? Yes,there is. Is it by concerted action? Yes, all of them or a good number of them. Is there a labor dispute? THERE IS NO LABOR DISPUTE. The price of petroleum products is not terms and conditions of work neither it is a question of the right to self organization. Before one of their favorite issues for calling a general strike is US bases. Karon na wagtang, wala lang gihapon. Amerikano lang gihapon ang kontra. Kay si Pnoy tuta sa amerikano.mga kalihukan, mas daghan pa bandera kay sa tao. Ngano maabot man ug TV. Kai naa may selga sa abs cbn sa gma, Wala pa edi wala na. Sa kada newspaper naa na sila. Mao ng naa gihapon casitas. Mga karaan ba.

The issue as to the definition of strike is: is the right to strike is in the unnamed or the unincorporated collective of the workers or is it in the collective that has a personality known as the union. Is it the union that has the right to strike? Or it is the aggrupation of employees that has the right to strike? Why? Take a look at Article277b.

Article277b states: Workers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection. The right of legitimate labor organizations to strike and picket and of employers to lockout, consistent with the national interest, shall continue to be recognized and respected. However, no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intra-union disputes.

Look at the last sentence. However, no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intra-union disputes. This sentence implies that it is the labor union that has the right to strike.

The sentence before that says that the right of legitimate labor organizations to strike and picket and of employers to lock out, consistent with the national interest, shall continue to be recognized and respected. Again, the implication is, it is the union that has the right to strike. You take a look at the definition. Take a look at Article 219o.

Article 219o states: "Strike" means any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute.

It seems that it is the employees that has the right to strike. So who is correct? Article 219o or Article277b? At sometime the SC will have to decide as to who has the seat of the right to strike? Among the workers or the union.

We will continue:)

September 19 part 1September 19, 2013 1st Period 5pm to 6pm

Yesterday we discussed the Elements of Strike. Strike is just one of the concerted activities that a union may undertake. Concerted activity is the activity directed of the welfare of the union members. The three elements should be the basis for us to recognize whether this pride is indeed accurate. Because there often was visually the pedestrian thinks that this evidence describe is not strike. The moment you see people in a workplace, carrying placards, you conclude that this is strike, you are not judging it according to the legally significant requirements of the definition in Context to be 2011202 level O which is now is the 219 level O. It can happen let just say that a workplace is on a three shift basis. The first shift is at 7 in the morning and exactly in the afternoon. The third shift ends at 7 in the morning but 11 in the evening. So what is the third shift starts picketing? And then when the second shift ends they take over the picketing. What you can see is that they just always picket. What if their work stops it? No! there is no stopping because they did not stop working. Theyre just picketing. Picketing is not a labor right. Picketing is a constitutional right.

The origin of the strike is the right to self organization. Picketing flows from the constitutional right with freedom of expression. It is a privilege right. Before you can go on strike, there are pre-requisites that you have to comply with in accordance with the law. Picketing cannot be subjected to pre-requisites. Constitutional law states that any sort of censorship, requirement, anything that curtails freedom of speech as a law organization goes before the court with a heavy burden of proving its validity. That is the only kind of registration that is presumed illegal or unconstitutional not presumed as illegal. That is the holding of our Court. What is the big difference? as to its legal basis, strike has the right to self authorization whereas picket has a freedom of speech. As to who exercises, strike requires a plurality of persons. You cant do it alone. You are expressing your freedom. Picketing is privilege. While strike is covered with pre-requisites, picketing is not. While strike may be enjoined, picketing cannot be enjoined. It is on the essence. On the very rare instances when your speech is not covered by freedom of speech, for because it is pornography, for it is libelous, then it may be enjoined. But these days it is very difficult to prove pornography. The fiction of sex would totally devoid the social beginning value in accordance with the community where it is presented. If your community is the Netherlands, prostitution, marijuana is legal, same sex marriage is allowed, theres nothing we can do. But the community with monks is difference. Those are the only kinds of expressions that may be enjoined.

If there is an abuse according to the freedom of speech, the only remedy is more speech.

As a right, what is the difference in status between strike and picketing? Strike is a protected right. Picketing is a privilege right. The state shall protect labor, local or overseas, organized or unorganized, and shall ensure the rights of the labor go just the main condition of work, right to self organization and the right to strike in accordance with law. Maybe protected but concretely still has some amount of discretions to legislative picketing But you cannot legislate the freedom of speech.

Three requisites of strike. There is a law which has not been amended, Presidential Decree 845, amending Presidential Decree 823, Section 2. The term strike shall comprise not only of concerted work strategies but also slow downs, mass leaves, attempts to damage or destroy, sabotage plant, equipment and facilities and the like. The work is stopped because of a repair. That is the meaning of this Presidential decree. It is meant to answer attempts at circumventing the provisions of strikes in certain industries.

Workers Union vs. MRC page -95494 Sept. 7, 1955.Supreme Court says our laws regulate the right to strike within reason balancing the interest of labor and management together with the over arching public interest. There are three interests that you have to balance: Right of the workers, the legitimate business interest of the management and the public. And because strike is to create public disturbance, that is the only kind of labor legislation which in case of doubt, is not interpreted in freedom of labor. Doubt has came from two sources: texture doubt the doubt on the text of the note on whatever pronouncement is made; structure doubt . Did they or did they not go on strike? These doubts are interpreted against the involved. (Constitutional case of PBM employees vs. PBM scheme in 1973.) The right to disagree to assemble and petition to government for income occupies the highest position in the hierarchies of Constitutional Law. Not all constitutional rights are equal importance. There is a hierarchy. The higher is this. to be able to petition the government or representatives. On that is guilt, republic democracy that goes constantly governed with the consent of the government. If one citizens right to peacefully assemble and petition the government for is not allowed to be exercise, then the rights of all are in danger. The freedom of one is the freedom of all.

Supreme Court asks was there work stoppage? Yes. There was work stoppage. Was there a strike? Supreme Court says there was no strike because the work stoppage occurred while the workers were doing a legal right. It tells you that aside from decree requisites listed in the law namely: temporary work stoppage, concerted activity of the workers, you may add - the work stoppage must be directly intended by the workers. If it is not, originally, there was work stoppage. Second, it is a concerted activity. Third, there was an issue about what to do on what happened to them while they were exercising the right to strike.

If you do something legal and lawful and there is work stoppage, it would be dismissed so therefore the leaders that would dismiss would dismiss without cause. (GSIS case: Winston Garcia)

Please read Article 278- Article 279. This is the most high profiled part of labor.1. In the bar examination, 50% of the questions are included. 2. In the bar examination, questions are hardly asked about strike.

September 19 part 2Sept. 19 / 8-9pm

Who can file a notice of strike? The federation because the federation has personality. After it has filed a notice of strike, those in the bargaining unit begin to receive a ----. Out of fear, they disaffiliate from the union, from the federation. And they ask an NGO to help them go to the process of filing for an independent ----. While they do that, they look for another federation that will receive them, a federation that is known for being aggressive. They are still convinced that they have to go on strike because if they don't, management will be emboldened to prosecute them just like Assad in Syria.Do they need to file a new notice of strike since they are no longer with the federation who filed the notice? If you say the order of the right to strike is the union, then you have to say that they have to file another notice. If you say that the right to strike is vested on the warm bodies that compose the bargaining unit, the workers, then you don't have to file a new notice. It has not been settled. There will be a case and the SC will have to decide when the right stands because there is as much evidence in the red letter of the law that says it is the union that has the right to strike. There is also in the red letter of the law that says it is the workers who make up the union where the right to strike is ultimately vested.

Requisites of a strike: Art. 277 and Art. 278A. Substantial Requisites:1. Negativea.) The strike must not be based upon an intra or inter union dispute. Art. 277(b) xxx no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intra-union disputes. Example: In a certification election, the incumbent loses to a newcomer who becomes the exclusive bargaining agent. The old union officer says, let us send a message to the management that we are still a force to reckon with. Dili na usa ra ang sabot2on sa management, duha na. Tanan nakadaog ug kita because we still have a substantial number. How do we prove that? Let's go on strike. So nag file sila ug notice of strike. Can that be a ground? NO. Inter-union dispute. Ang kalagot nimo sa pikas union cannot be a ground for strike. So intra and inter-union disputes cannot be a ground for strike. Immediately, the strike is illegal.

b.) The strike must not be based on a plain violation of the CBA except when the violation is gross in character. That is, flagrant and/or malicious refusal to comply with the economic provisions of such agreement. That is in Art. 273.

c.) The strike must not be based on a trivial ground. It might be about working conditions dispute, it might be an honest to goodness labor dispute, but if it is trivial it cannot be a ground. Walay hinungdan. Example: Reliance Surety and Insurance Co., Inc. vs. NLRC, et al., 193 SCRA 365 (1991). What is the workplace of an insurance company? Just one giant hall, so many desks lined up, people are pushing papers. Management found out that people have become too friendly and were working slower and slower, so they re-arranged the desks. The president of the union, didto na sa likod duol sa kasilyas... he resented this. They filed a notice of strike. This is a trivial ground. It must be a serious ground. Example: wage distortion. It is a serious issue that affects everybody. Yet the SC has said in IBM vs. NLRC, 198 SCRA 586 (1991) that the strike is illegal because even if the ground is serious it is not a ground for strike. Because Art. 124 provides for a particular method or procedure on how to deal with this, effectively eliminating strike as a way of addressing this. 2 kinds of strikes:1. Economic Strike - strike waged by the union to demand from management some benefit which management is not under obligation to grant.2. Unfair Labor Practice Strike (ULP)- strike the ground of which is a commission on the part of management of an unfair labor practice act.

Suppose the demand of the union is highly unrealistic, does that make the ground for the strike trivial? NO. In the case of San Carlos Milling Co. vs. CIR, L-15463 and L-15723 [March 17, 1961]. The legality of a strike does not depend on the reasonableness of the economic demand.

2. Positivea.) The strike must be based either a CBA deadlock or an unfair labor practice. So either economic strike or ULP strike. San Miguel Corporation v. NLRC, 304 SCRA 1. Deadlock is defined as the situation between labor and managent of a company where there is failure in the collective bargaining negotations resulting in a stalemate. CAPITOL MEDICAL CENTER vs laguesma, February 4, 1997, 267 SCRA 503: When there is a complete blocking or stoppage resulting from the action of equal and opposing forces, there is a deadlock. The word is synonymous with the word "impasse" which presupposes reasonable effort that would create bargaining and which despite noble intentions, does not conclude in agreement between the parties. Positively, you must be able to tell whether it is bargaining deadlock or ULP. It must be either, it cannot be both.

b.) The ground for a strike must be a serious ground. Something that affects everybody, something that drastically affects the working conditions. Or if it doesn't affect everyone, it affects someone fatally (like dismissal).

c.) The purpose and the means of the strike must be lawful. Here we come face to face with the question of violence. It's very easy for a strike to turn violent. The SC has said, it is not whether a strike becomes illegal by the occurrence of violence. It is very easy at a deadlock that you begin to throw each other hot words, and from hot words you have action. The occurence of violence is not enough to make a strike illegal. It must be pervasive violence not sporadic violence. When is it pervasive? Violence becomes pervasive when it becomes the general mood of the strikers and they are posturing either to initiate of perpetuate violence. It must be either economic strike or ULP strike. It must be serious and both the purpose and means must be lawful. If your means is unlawful and your purpose is lawful, the strike is illegal. If your purpose is illegal like intercorooprate dispute, even if your means is legal, the strike is still illegal. The two must be legal. The transformation, if the strike begins legal and turns into overwhelming violence, it becomes illegal even if you comply with all the requisites. The moment a strike becomes violent, can you transform it and make it legal? No more, you cannot. The best that you can hope for is what is called pari delicto when management also commits illegal acts.

B. Procedural Requisites1. Negativea.) There must be no violation of the duty to bargain on the part of the union. You must at least go though the motions of trying to adjust your complaint, trying to find an amicable settlement. SC says a strike is not the remedy of first choice. It is the last remedy, it is the ultimate remedy.INSUREFCO Paper Pulp & Project Workers Union vs. Insular Sugar Refining Corp., 95 Phil. 61 (1954) SC said: A strike declared by the union to enforce a demand without first having given management reasonable time and opportunity to act on them has been held as premature and illegal. The supervisor is so cruel, so unreasonable, they wanted him out. Management would not dismiss the supervisor, so they went on strike.

b.) There must be no compulsory or voluntary arbitration over the ground for strike. Example: A union is organized. Management finds out who the leader is and immediately dismisses him. That is dissmisal of union leaders which puts in danger the existence of the union. You can go on strike without observing the ----? The union leaders file an illegal dismissal complaint. Can you still go on strike? No you can't. Because the dispute is already submitted to the compulsory arbtirator. If you agree to voluntary arbitration on the very ground for the strike, the legal effect is that you waived your right to strike because you're submitting it for resolution to a third party. You cannot have your cake and eat it too.

Can you go on strike if there is compulsory arbitration? If the compulsory arbitration is the same subject matter as the ground for your strike, then you can no longer go on strike.

c.) There must be no violation of the no-strike clause. If there is a CBA and there is a no-strike clause, you cannot go on strike violating the clause. A no-strike clause covers only economic strikes. It doesn't cover ULP strikes. If otherwise, SC says that it will be a license for management to be as cruel as they want to be, to be as oppressive as they are capable of. Because they can commit ULP with impunity. So a no-strike clause covers only bargaining demands.

2. Positivea.) Strike notice. You must file a strike notice. If the strike notice is grounded on ULP, it must contain the recitation of acts or omissions that constitute ULP. You must recite there in detail the acts/omission that constitute ULP. Where should you file? Rule 77 says you file it with the Ministry, the Dept. of Labor. The primer of the Dept. of Labor says you file it with the NCMB. Who is correct? If asked in the bar exam, you say there that the primer of the DOLE says NCMB. But can they determine the sufficiency of a strike notice? They cannot. So the correct place to file is with the Ministry. PAL vs NLRC, the SC said the strike is illegal because the NCMB downgraded the strike from a notice of strike to a recommendation for preventive conciliation. Art. 238... it is now privileged communitcation. Information and statements made at conciliation proceedings shall be treated as privileged communication...

b.) After filing the notice you must serve cooling-off period. If it is a economic or deadlock strike, it is 30 days. If ULP strike, it is 15 days. So you cannot begin to strike until the cooling-off period is at least consumed. c.) Strike vote by secret ballot. Before you conduct it, you must give notice of 24 hours to the DOLE so that they will supervise it. They may or may not supervise it but you must conduct it and it must be by secret ballot. The majority of all those in the bargaining unit must vote for the strike. You must report the result to the DOLE, if you don't, the strike is illegal. That is the holding in Samahan ng Manggagawa sa Moldex vs NL