LABOR LAW II NOTES **Two types of project employees
Demegilio, C.K a. undertaking within the regular or usual business, which
is distinct and separate from other work Labor Relations – governs the relationship between the b. undertaking not within the regular business, but employer and employees, on matters of employer- identifiably separate and distinct, having a determined employee relationship, and the institutional mechanism period. for collective bargaining and grievance. ** Indicators 1. Specific Duration Employer – any person acting in the interest of an 2. Duration defined in Contract employer (does not include any labor organization or any 3. Work performed in connection with project of its officers or agents, except when acting as an 4. Employees free to offer work to other employers employer) 5. Termination reported to DOLE 6. Undertaking for completion bonus Employee – includes any person in the employ of an ** For project to become regular employees employee. Contemplating to be a natural person 1. Continuous Rehiring ** a person whose employment ceased because of 2. Tasks are Vital, Necessary, and Indispensable to the alleged illegal dismissal or unfair labor practice is still Usual Trade or Business considered an employee provided he/she has not obtained any other substantially equivalent and regular 3. Seasonal – During the season, are considered as employement regular employees thus enjoy security of tenure (unless validly terminated). During off-season, are considered on REQUISITES OF EE-ER TEST leave until re-employed.
1. Right to Hire (limited to hiring of Minors, Age Discrim.) 4. Casual – requisites:
2. Payment of Wages A. Not considered regular, project, or seasonal 3. Power of Dismissal B. Employer activity when one is employed 4. Control over Conduct of Work C. Rendered at least 1 year of services *(most essential element, the right to control no only the D. Activity still exists end to be achieved but also the means to be used in ** However, casual employee becomes regular if he reaching the end) renders more than one year of service. Cannot be **even in absence of the three, EE-ER relationship can terminated unless, just or authorized cause and with due still exist if there is power to control process *** Instances of such: A. Labor Contractors (First three exercised by the 5. Fixed-Term – based on contractual agreement; Labor Contractor, but the control power is ** Requisites: lodged in the principal) 1. Fixed period was knowingly and voluntarily agreed on B. Coaches in the PBA are considered independent 2. NO MORAL DOMINANCE over another, agreed on contractors since there is the absence of control equal terms C. Masiadors and Sentenciadors are not employees since employer relied on their 6. Probationary – A legitimate exercise of Management expertise. Prerogative where an employee is made to go through a D. Consultants are not considered employees trial period to determine his fitness to qualify for regular since there an absence of control power employment based on reasonable standards made known to the employee. REMEMEBER: **probationary period should not exceed 6 months, EE-ER relationship is a question of fact, employee must unless: prove before alleging other causes of actions. 1. As per agreement Substantial evidence is required, i.e, I.D’s, payslips, 2. In case of teaching personnel, not more than three Social Security Remittances, etc. years 3. Extensions granted ex gratia CLASSIFICATION OF EMPLOYEES: ***basis of terminating a probationary employee Regular, Project, Seasonal, Causal. And Fixed-Term 1. Exercised in accordance with specific requirements 2. Dissatisfaction of employer, based in real and good 1. Regular – performs particular activity which necessary faith or desirable in the usual business or trade of the 3. No unlawful discrimination employer, regardless of length of service and the contract *** Enjoys security of tenure within probationary entered. period ** Two types of regular employees **** Due process of termination of probationary a. necessary & desirable activity (by nature of work) 1. Reasonable Standards made known to him b. at least one year of service (by years of service) 2. Employee, after evaluation, must be informed *** supervised piece-rate employees can become GROUNDS: regular employees 1. Just cause (two-notice) 2. Authorized cause (twin- notice) 2. Project – perfoms an activity which is usually 3. Failure to Qualify necessary or desirable in the usual trade or business, but for a definite period. TEST: when assigned to carry out a SECURITY OF TENURE IS ENJOYED BY ALL specific project or undertaking EMPLOYEES REGARDES OF TYPE, one can only by removed from employment based on: Just/Authorized 1. When Dismissal is denied by the employer. Cause, and after Due process. 2. For charges of Unfair Labor Practice against a labor organization. CONCEPT OF CONSTRUCTIVE DISMISSAL *exists when there is a cessation of work because Principle of Discretionary Justice – tempers continued employment is rendered impossible, management prerogative to discipline and terminate and unreasonable or unlikely. employee, the standard of what is reasonable should be ** Management Prerogative to transfer may be of paramount consideration. considered as constructive dismissal. Employer must *Where a penalty less severe would suffice, demonstrate that transfer is not unreasonable, whatever steps may be committed by labor ought not to inconvenient or prejudicial to the employee and will not be visited with consequence so severe. involve demotion of rank or diminution of pay. *** Resignation is caused by surrounding Principle of Discerning Compassion – gives an erring circumstances, may be considered as constructive employee an amount in the form of financial assistance dismissal. based on social justice or equity (small amount used by *** Burden of proof of voluntary or valid employee to look for another work). resignation is on the employer Requisites to avail 1. Was not for Serious Misconduct Two types of Constructive Dismissal 2. Did not reflect on the Moral Character of employee 1. Discrimination, Insensibility, and Disdain by an employer JUST CAUSES FOR TERMINATION OF 2. Placed on Floating status for more than 6 months EMPLOYEMENT *requires the two-notice rule (first and final notice) CONCEPT OF PREVENTIVE SUSPENSION 1. Serious Misconduct or Willful Disobedience Disciplinary for the protection of the company’s 2. Gross and Habitual Neglect property pending investigation of any alleged 3. Fraud or Willful Breach of Trust malfeasance or misfeasance committed by the employee. 4. Commission of a Crime or Offense ** should not last longer than 30 days otherwise 5. Other Analogous Causes the employer must choose between payroll, or actual reinstatement 1. Serious Misconduct or Willful Disobedience Two kinds of suspension Serious Misconduct – grave and aggravated, in 1. Preventive Suspension (not more than 30 days) connection with work 2. Suspension as a form of penalty Requisites 1. Serious TERMINATION OF EMPLOYEMENT 2. Related to performance of duty Concept of Substantive Evidence 3. Employee becomes unfit to work More than mere scintilla of evidence or relevant 4. Wrongful Intent *absence of such becomes evidence as a reasonable mind might accept as adequate mere ordinary and simple misconduct to support a conclusion, even if other minds, equally Willful Disobedience, requisites reasonable, might conceivably opine otherwise. 1. Willful or Intentional 2. Order violated must have been reasonable, ** Substantive evidence is satisfied when there is lawful and made known to the employee reasonable ground to believe that the employee is 3. Order pertains to the duties one is engaged to responsible for the misconduct and renders him unworthy discharge of trust and confidence. 2. Gross and Habitual Neglect Procedural Requirement: Notice Rule **Must be serious and done frequently Under the principle of Opportunity to be heard, and ***Usually found in cases of Abandonment of Work explain one’s side, or to seek reconsideration of the Requisites action or ruling complained of 1. Failure to report to work without just reason 1. First Written notice 2. Clear intention to sever the EE-ER relations *should contain the specific causes or grounds, *** Also found in inefficiency, negligence or employee must have reasonable opportunity (at least 5 carelessness days) to explain their side through a detailed narration of *** intent should be proven by overt acts, thus burden of the facts and circumstances. proof is on the employer 2. Hearing or Conference *grants opportunity to explain and clarify 3. Fraud or Willful Breach of Trust employees defenses, present evidence of such, and rebut In the perspective on the employer against the the employer’s allegations employee, requisites 3. Final Written notice 1. Not simulated *after determination, written within all 2. Not a subterfuge for illegal causes circumstances considered, grounds which were justified. 3. Not arbitrarily asserted 4. It must be genuine ***BURDEN OF PROOF LIES WITH THE EMPLOYER, 5. Position of employee is of trust and however, in preliminary matters the employee must first confidence (*person entrusted on delicate matters, or prove that there was an EE-ER relationship. with the custody, handling and care of employer’s Recognized Exceptions, property and/or funds). In the perspective of the employee against employer, Standards: requisites 1. Substantial 1. Not ordinary but willful breach of trust 2. Actual/Reasonably Imminent losses 2. Work related, not fit for work 3. Retrenchment, reasonably necessary Two types of Fiduciary Employees 4. Proven by sufficient evidence **Rank and File employees (needs proof of involvement) ** substantial loss must be supported by and ** Managerial employees (mere existence of an instance independent audited financial statement in believing, or reasonable ground to believe) Principle of Last Resort – Companies MUST FIND 4. Commission of a Crime or Offense WAYS and means before using the option of ** made against the person of the employer, his retrenchment family member (up to 4th civil degree) or his duly Difference of Retrenchment and Redundancy authorized representative Retrenchment – reduction of work personnel usually due to poor financial returns, aimed to cut down costs for 5. Other Analogous Causes: Gross inefficiency, failure operation particularly on salaries and wages. to observe prescribed standards of work, objectionable Redundancy – exists where the number of employees is behavior in excess of what is reasonable demanded by the actual requirements of the enterprise. AUTHORIZED CAUSES *Must give separation pay to employees 4. Closure and Cessation due to Serious Business **Requires the Twin-notice rule (Notices to employees, Losses or Financial Reverses simultaneous with DOLE) Two kinds: ***Twin-notice is required in order for DOLE to validate 1. Not due to business reverses (obliged to pay the truthfulness of the employer’s act separation pay), requisites: Concepts: 1. Service of written notice 1. “… at least one month pay or to at least one month 2. Bona fide cessation of operations pay for every year of service, whichever is higher” 3. Payment of Separation Pay Goes for: Labor-saving devices, and redundancy **shall be upheld so long as it is done with good 2. “… at least one month pay or at least one-half month faith in advancing the employer’s interest pay for every year of service, whichever is higher.” Goes for: Retrenchment, Closure or Cessation 2. Due to serious business losses (Bankruptcy) **Not obliged to pay separation pay A fraction of at least 6 months being considered as (since doing so would be unduly oppressive, unjust one whole year. and unfair to the employer), not exempted from the notice requirement. 1. Installation of Labor Saving Devices **CHANGE IN OWNERSHIP must be A management prerogative, the courts shall not motivated by good faith in order to be granted exemption interfere in the absence of abuse of discretion, from separation pay arbitrariness or malicious intent. Grounds: *LAST IN, FIRST OUT Rule must be strictly observed 1. Good faith, concrete and substantiated 2. The Twin-Notice rule Disease: Requisites: 2. Redundancy 1. Disease is prejudicial to one’s health as well The services of an employee are in excess of has his co-employees what is reasonable demanded by the actual requirements 2. Cannot be cured within 6 months of the enterprise. Substantive requirement: Certification from a Requirements: Competent Public Health Authority 1. Written Notice Procedural requirement, employer must furnish: 2. Separation pay equivalent 1. Written notice (two-notice rule) 3. Abolishing redundant positions in good faith a. notice to apprise the employee on such ground 4. Fair and reasonable criteria b. informing of dismissal **employer must prove employee’s disease 3. Retrenchment to Prevent Losses ***HIV-positive employees cannot be terminated due to Termination of employment initiated by employer, Sec. 34 of R.A. 8504 as such would tantamount to through no fault of the employee done by management discrimination during periods of business recession, industrial depression or seasonal fluctuations or during lulls over Retirement shortage of materials. Instances: Two types: 1. As per stipulation in the CBA or Employment Contract 1. Anticipation of serious losses & profit suffering 2. Earned under existing laws to be incurred *PAG-IBIG Funds may substitute as retirement 2. Retrenchment to prevent further losses plan, so long as more or equal to benefits granted in R.A Requisites: 7641 1. Proof that act is necessary 3. In the absence of such, the Labor Code provides: 2. Service of notices 3. Payment of separation pay a. Reaching the age of 60, or more, but not BACKWAGES – primarily covers period running from his beyond 65 as such is compulsory retirement (except for illegal dismissal up to his actual reinstatement underground miners, who may retire at 50 years of age). ** Illegally dismissed employee should be entitled to either b. Served at least 5 years in said establishment reinstatement – if viable, or separation pay – if no longer **entitled to: retirement pay of at least ½ month salary for viable, plus backwages. every year of service, a fraction of at least 6 months being Reinstatement with no Backwages, requisite considered as one whole year. 1. Fact that dismissal would be too harsh ½ month includes: 2. Employer in good faith a. 15 day salary If reinstatement is no longer possible, backwages are b. cash equivalent of not more than 5-day SIL computed from the time of illegal dismissal until the c. 1/12 of 13th month pay decision becomes final. (Or separation pay) d. all other benefits **Commissions are considered as part of backwages, **stipulations where retirement is not available upon when deemed fixed as part of basic salary, if only resignation or valid termination is VALID considered as productivity bonus, then not part. *** Taxi drivers are entitled based on average daily income If Order of Reinstatement is not followed Backwages may be recovered up to and despite Resignation – a voluntary act of an employee who is in a the reversal of the higher tribunal situation where one believes that personal reasons Exception to backwage entitlement, requisites cannot be sacrificed in favor of the exigency of the 1. Actual delay or the fact that order of reinstatement service, one has no other choice but to dissociate oneself pending appeal was not executed prior reversal from employment. 2. Delay not due to employer’s unjustified act or omission **a constitutional guaranty against involuntary servitude Reinstatement not possible: **MUST BE A VOLUNTARY ACT, otherwise 1. Long passage of time involuntary resignation = illegal dismissal 2. Realities of the Situation Two different grounds of resignation: 3. Inimical to employer’s interests 1. Without cause – employee must serve written notice 30 4. No longer feasible days prior exit (in order to give employer a chance to find 5. Not serve the best interests of the parties a replacement) 6. Company would be prejudiced with worker’s 2. With cause – no need for written notice (unfair or employment prejudicial to the employee to continue), types: 7. Reinstatement will not serve any prudent purpose a. Serious Insult by employer b. Inhuman and unbearable treatment “Strained Relations Rule” – irretrievable estrangement c. Commission of a crime or offense Most common reason why reinstatement is not d. Other causes analogous possible, “applies indiscriminately since such case would Can an employee that resigned be given separation pay? cause then rule. Thus applying it needs substantive - Yes, provided that justification of resignation is evidence.” under par. B of art 300 of LCP since such, if not granted, would tantamount to involuntary Backwages vs. Separation Pay dismissal. Backwages – compensation that should have been earned but were not collected because of unjust Reinstatement dismissal. Admission of an employee back to work Separation Pay - granted when reinstatement is no prevailing prior to his dismissal, restoration to a state or longer possible because of strained relations between the position, presupposing that there is no demotion of rank parties. or diminution of pay, benefit or other privileges. **order of reinstatement is generally executory, Damages pending appeal (even positing of bond, shall not stop **Employers who committed illegal dismissal is liable to execution) pay damages other than award of separation pay and **however, when on appeal, such reinstatement may be backwages enjoined or suspended ***employer may either admit employee back to work, “Double Indemnity Rule” – erring employers are or only on payroll ordered to pay double the unpaid benefits owing to ****includes employee to receive accrued backwages employees, provided that such payment will not absolve from the moment the reinstatement order was issued, employer from criminal liablity. up to the date where the same was reversed Nominal Damages – right of a plaintiff that has been NO REFUND DOCTRINE IN REINSTATEMENT – violated or invaded by the defendant may be vindicated or employee has no duty to return or reimburse the salaries recognized: he receives during the period where the lower court’s Authorized Causes, without due process: 50,000 decision was for the employee’s illegal dismissal Just Causes, without due process: 30,000 **not considered as unjust enrichment, since such is for the constitutional guaranty of laborer’s rights **Corporate directors and officers are solidary liable with the corporation for the termination of employees done **reinstatement and backwages are two separate with malice and bad faith reliefs available to an illegally dismissed employee Bad faith – imports dishonest purpose or some moral Workers with the Right to Join, Form or Assist Labor obliquity and conscious doing of wrong. Breach of a Unions: known duty through some motive or interest or ill will, it 1. All Rank and File Employees – including ambulant, partakes the nature of fraud. intermittent, and itinerant workers, self-employed, rural and those without any definite employers may form labor Moral Damages are awarded when dismissal is attended organizations for their mutual aid and protection. with bad faith, fraud or constitutes and act oppressive to labor. Exemplary Damages are awarded when dismissal 2. Supervisors – employees that effectively recommend is effected in wanton, oppressive or malevolent manner. such managerial actions if the exercise of such authority ** person claiming MUST PROVE SUCH EXISTED is not merely routinary or clerical in nature but requires the use of independent judgement (thus, must form unions Legal Interest of 6% per annum, as per monetary of their own, separate from rank and file employees) awards that are granted **Bank managers, controllers, and cashiers are supervisory employees Attorney’s fees – both Ordinary (reasonable compensation paid to a lawyer for his legal services) and 3. Government Employees: Extraordinary cases (indemnity in damages, granted by GOCCs – right to organize and effectively bargain with the court, paid by losing party), awarded when: their respective employers a. Unlawful withholding of wages Employees under the Civil Service – right to form b. Employee compelled to litigate associations for purposes not contrary to law c. Indemnity under law *not eligible to do strikes **high level employees (policy-making, managerial, highly Quitclaims – Acceptance of an offer made by an confidential) are not eligible to join organizations of rank employer in connection to a labor case. Valid when and file employees agreement is voluntarily entered into and represents reasonable settlement. 4. Aliens – strictly prohibited from engaging directly or Requisites for invalidity: indirectly in all forms of unionism, without prejudice to 1. Clear proof that waiver was wangled from an normal contacts between Philippine Labor Unions and unsuspecting or gullible person International Labor Centers, however may join or assist 2. Terms are unconscionable in their face subject to the following: 1. Alien employee, is a holder of valid DOLE PRESCRIPTIVE PERIODS: employment permit. 1. Illegal Dismissal: 4 years from time of incident 2. Principle of Reciprocity 2. Unfair Labor Practice: 1 year from incident 3. Can ONLY join or assist unions (not form) 3. Money Claims: 3 years from time of incident (from effectivity of labor code) and 1 year (before Labor Code 5. Security Guards – E.O 111 (security personnel are took effect) employees in relation to the establishment of their employer, thus they may join either supervisory or rank RIGHT TO SELF ORGANIZATION and file according to their rank) PRINCIPLES AND POLICIES **Fundamental right guaranteed by the Constitution and Workers without Right the Labor Code for the betterment of labor conditions 1. Managerial Employee – vested with powers or **Right to form, join, or assist labor organizations for prerogatives to lay down and execute management the purpose of collective bargaining or for the policies and/or hire, transfer, suspend, lay-off, recall, laborers’ mutual aid and protection discharge, assign or discipline employees, excluded due to: UNFAIR LABOR PRACTICES, by employers: a. avoiding conflict of interest 1. Interfere, restrain, or coerce employees in the exercise b. to preclude the risk of unions become company of employee’s right to self-organization unions as consequence 2. To require as a condition of employment, that a person Test of Managerial status: shall not join or shall withdraw from a labor organization a. Possession of Authority to act in the interest of his 3. To contract out services being performed by union employer (definition of Managerial Employee) members when such will interfere, restrain, or coerce b. Authority is not merely routinely or clerical, but requires employee’s exercise to self-organization independent judgement 4. To initiate, dominate, assist, or otherwise interfere with the formation or administration of any labor organization 2. Confidential Employee - required to assist or act in a 5. To discriminate in regard to against established labor fiduciary manner to managerial employees and hence, standards are likewise privy to the sensitive and highly confidential 6. To dismiss, discharge or otherwise prejudice or records discriminate against an employee who shall give testimony 3. Employees in International Organizations – due to 7. To violate the duty to bargain collectively the Doctrine of State Immunity, in order to avoid dangers 8. To pay negotiation or attorney’s fees to the union as of partiality and interference by the host country in their part of issue settlement in CBAs internal workings. 9. To violate the CBA ***HE WHO ALLEGES HAS THE BURDEN OF 4. Cooperative Members, especially those who are at PROVING, THROUGH SUBSTANTIAL EVIDENCE the same time owners of the cooperative being a stockholder thereto – since they are the co-owners thereof, the cannot invoke the right of collective bargaining against themselves RIGHTS OF A LEGITIMATE LABOR ORGANIZATION 1. As a Representative against the erring employer 2. As a Bargaining Agent (through and after certification 5. Non-employees – Since persons involved are not election) employees of the company, they cannot claim the 3. Right of LLOs to ask for Employer’s Financial constitutional guaranty of union protection. Statements, at these specific instances: a. after certification election b. after recognition as sole bargaining LABOR ORGANIZATIONS representative *for the purpose of collective bargaining c. during freedom period *for strong and united labor movements d. during CBA negotiations *registration with the Bureau of Labor Relations (BLR) 4. Property Rights *ONLY UPON THE ISSUANCE OF THE CERTIFICATE 5. Personality to sue and be sued 6. Tax exemptions (key term: donations and other OF REGISTRATION, can the union acquire legal gratuities must be received or given to fraternal and personality similar organizations) 7. Other Activities Labor Organization – Any union or association of employees existing for the purpose of collective **Supervisor-Rank and File mingling in a Union’s membership, or Unions of Disqualified Employees cannot bargaining or of dealing with employers concerning affect its legitimacy since it is not one of the grounds of conditions of employment cancellation unless there was misrepresentation, false Legitimate Labor Organization – Unions duly registered statement or fraud involved with DOLE, or has complied with the requisites under Art. 240 Local Union Disaffiliation – shall not affect the legitimate status of a labor organization which is Company Union – Labor organization whose formation, independently-registered; however such is not the case function and administrations has been assisted by any act with chartered locals defined as unfair labor practice by the code. **charter local disaffiliation, effect: ceases to be entitled to the rights and privileges granted to a legitimate labor Concept of Local Chapters organization. It cannot file a petition for certification election DOLE registered federations or national unions may directly create local chapters, by issuing a charter **local unions are free to sever their affiliations anytime certificate indicating the establishment of such chapter. and such is not considered disloyalty, in the absence of Purpose of LCs: For the filing of petitions for certification prohibition from the federation. election ONLY CERTIFICATION ELECTION Purpose: for the process of determining the sole and Effect of Registration: Union becomes the exclusive exclusive bargaining unit for purpose of collective representative of all employees in an appropriate bargaining. bargaining unit. Collective Bargaining Agreement – negotiated contract between legitimate labor organization and employer on established and standardized conditions and standards of Grounds for Cancellation of Certificate or work Registration (Four grounds) Methods of Establish the Sole and Exclusive 1. Misrepresentation, false statement, or fraud in Bargaining Agreement: connection with the adoption or ratification of the 1. VOLUNTARY RECOGNITION constitution and by-laws or amendments. *In instances where there is only one legitimate labor organization 2. Misrepresentation, false statement, or fraud in *employer may voluntarily recognize, cannot be done if connection with election of officers there are two or more labor organizations operating 3. Voluntary dissolution by the members; and 2. CERTFICATION ELECTION 4. Any violation of Art. 247, since there was no expressed *aimed at determining the sole and exclusive bargaining repeal of such agent through secret ballot, maybe petitioned by: a. independent union b. national union or federation having a local Rights and conditions of membership must be chapter upheld, otherwise when violated becomes a ground c. a local chapter issued a charter certificate for cancellation as well **petition maybe filed at anytime, except when barred 1. Protection of union member’s money through their during: union dues a. 1 year from date of valid voluntary certification 2. Union member’s right to elect their officers: (certification bar) To be an officer one must be: b. 1 year from date starting of commenced CBA a. Of good standing negotiations (negotiations bar) b. Not a subversive c. Cannot submit when there is a submission for c. Not convicted of crimes of moral turpitude conciliation/subject of valid strike or lockout (bargaining d. employee of the same Bargaining Unit deadlock bar) 3. Rights of member’s in participating in Union Affairs d. 60 days prior to the date of expiry of an existing (**usually done in secret ballot, and on a meeting called CBA (contract bar) for such specific purpose) Filed by Unorganized Establishment: Med-Arbiter 4. Protection against ULP committed by the Union itself required to order the conduct of certification election upon 5. Illegality of discrimination on labor standards and filing of petition by a legitimate labor organization established conditions Filed by Organized Establishment: Med-Arbiter 6. Duty of Union Officers to inform members of their rights required to automatically order conduct of certification and privileges (as agents of enlightenment) election by secret ballot upon fulfillment of requisites: a. petition filed within 60 day freedom period b. verified petition c. supported by 25% of all employees in a **if not settled within 7 days, must be referred to voluntary bargaining unit arbitration 3. RUN-OFF ELECTION: Election between the labor Voluntary Arbitrator – any person accredited by the board unions receiving the two highest number of votes in a as such or any person named or designated by CBA as certification election such, or upon written request by parties of a labor dispute. 4. CONSENT ELECTION: Where three or more choices did not receive any majority of the votes cast. UNFAIR LABOR PRACTICE *Established to protect the right of self-organization PRINCIPLES: *criminal in nature “No direct certification” – that the choices should be *grounds for strike made by the majority of employees and union officers that *can be committed by either union or the employer best represent them should be achieved through democratic process of an election. CIVIL ASPECTS OF ULP CASES shall fall in the Substantial support and effect of withdrawal of union jurisdiction of the Labor Arbiters members – AFTER PETITION OF CERTIFICATION NO CRIMINAL PROSECUTION may be instituted until ELECTION has been filed, does not vitiate the petition final judgement in finding ULP was committed Totality of Conduct Rule – culpability of an employer’s Protest – any party in interest may file protest based remarks were to be evaluated not only on the basis of their on the conduct and mechanics of the election implicit implications, but were to be appraised against the background of and in conjunction with collateral COLLECTIVE BARAINING circumstances. *CBA must be ratified by the members of the union Prescriptive period for ULP – 1 year from accrual of *the union must always be the one to request for CBA such unfair labor practice Principles: **unreasonable refusal or refusal to reply are grounds CONCERTED ACTIVITIES for ULP 1. Strike – any temporary stoppage of work by the *** bad faith on the part of the employer in refusing to concerted action of employees as a result of an industrial bargain collectively must be proved with evidence or labor dispute, grounds: ****during conciliation proceedings, both parties are a. deadlock in collective bargaining prohibited from disrupting or impeding settlement of b. ULP disputes c. flagrant or malicious refusal to comply with the To bargain effectively – mutual obligation to meet and economic provisions of a CBA convene promptly and expeditiously in good faith for the ***if there is valid ground, a notice to strike stating the purpose of negotiating an agreement grounds for such What are bargainable issues: ***must be approved by majority vote through a All aspects of employement, including but not secret ballot limited to, work assignments and supervision, working ***due notice to parties must be given by providing copies methods and regulations, time, place and manner of work, of the notices processes etc… Requisites for a valid strike a. Valid ground COLLECTIVE BARGAINING AGREEMENT b. Notice to strike filed with DOLE within 30 *interpreted in favor of labor days/15 days before intended date of strike Principles: c. strike vote approved a. A CIVIL CONTRACT binding between parties d. submission to NCMB of strike out vote within b. Cannot bind other parties/unions 24 hours c. Cannot be registered without a “grievance e. notice given to DOLE of voting results within 7 machinery clause” days prior of strike date *term of expiry: 5 years f. Seven day strike ban *Other terms shall only be negotiated within 3 years after COOLING OFF PERIODS CBA execution a. Bargaining deadlocks: 30 days *If a CBA is negotiated within 6 months after the expiration b. ULP: 15 days of the previous CBA retroacts to the day immediately Picketing – right of workers to peacefully march to and following such date and if agreed thereafter fro before an establishment involved in a labor dispute Union Security Clauses in a CBA **limited to against crimes of libel 1. Agency Fees Innocent Bystander Rule – where the picketing affects 2. Either: other business operations of other establishments, third- a. Closed Shop – employer binds himself to hire party employers may petition for injunction with the only members of the contracting union who must continue regular courts to enjoin the conduct of the picket to remain members of good standing to keep their jobs Prohibited Activities, no one shall: b. Union Shop – non-members may be hired, but a. commit any act of violence, coercion or to retain employment must become union members after intimidation a certain period b. obstruct the free ingress or egress from the c. Maintenance of Membership – union employers premises members as of effective date of the agreement, must c. obstruct public thoroughfares maintain union membership as condition of continued Effects of acts: employment Union Officers or workers – loss of employment status Scope of Union Security Clauses – Ordinary worker – cannot be terminated unless there is *employees who are forbidden to become union members proof based on religious grounds *employees who are already members of a union 2. Lockout – any temporary refusal of an employer to *employees excluded from the union by express furnish work as a result of industrial or labor dispute. agreement *** a decision approved by majority of the board of In terminating an employee based on the Union directors, obtained by secret ballot Security Clause, requirements: a. the clause is applicable NO STRIKE CLAUSE, COUPLED WITH NO LOCK-OUT b. union is requesting for its enforcement CLAUSE – can only be invoked if strike is economic in c. there is sufficient evidence nature (wages, and others not required by law to be Grievances – any disagreement between the Union and granted) the Company as to the application and interpretation of actual benefits in the CBA. BACKWAGES SHALL NOT BE AWARDED IN AN ECONOMIC STRIKE. EVEN IN ULP CASES BACKWAGES RESTS ON COURT DISCRETION
Strike-breaker – person who obstructs, impedes, or
interfere with by force, violence, coercion, threats or intimidation, any peaceful picketing.
RUN-AWAY SHOP – industrial shop moved by its owners
from one location to another to escape union labor regulations or state laws, a plant removed to a new location to discriminate on old employees because of union activities.