Labor Relations (CBA, Grievance Machinery & Voluntary Arbitration, Strikes & Lockout, Special Provisions) [Arts.261-292]

Book V

Labor Relations

Title VII

Collective Bargaining and Administration of Agreement

Art. 261. Procedure in collective bargaining.

Procedure in collective bargaining

Notice

When a party desires to negotiate an agreement, it shall serve a written notice upon the other party with a statement of its proposals.

Reply

The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice;

Conference

Should differences arise on the basis of such notice and reply, either party may request for a conference which shall begin not later than ten (10) calendar days from the date of request.

Intervention/Conciliation

If the dispute is not settled, the Board shall intervene upon request of either or both parties or at its own initiative and immediately call the parties to conciliation meetings.

Power/Duty of the Board

The Board shall have the power to issue subpoenas requiring the attendance of the parties to such meetings.

The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to a voluntary arbitrator.

Duty of the Parties

It shall be the duty of the parties to participate fully and promptly in the conciliation meetings the Board may call.
During the conciliation proceedings in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes.

Notes

Collective bargaining refers to the process of formulating and administering at the enterprise a binding collective contract between the employer and employees.

This second meaning is the subject of Article 261.

Stages of the Collective Bargaining Process

Art. 262. Duty to bargain collectively in the absence of collective bargaining agreements.

Duty to bargain collectively in the absence of collective bargaining agreements.

Absence of:

collective bargaining agreement or
other voluntary arrangement providing for a more expeditious manner of collective bargaining,

Duty of employer and the representatives of the employees:

Bargain collectively in accordance with the provisions of this Code.

Art. 263. Meaning of duty to bargain collectively.

Meaning of duty to bargain collectively.

The performance of a mutual obligation to meet and convene promptly and expeditiously in good faith

Purpose of negotiating an agreement with respect to:

wages
hours of work
all other terms and conditions of employment

including proposals for adjusting any grievances or questions arising under such agreement, and
executing a contract incorporating such agreements if requested by either party but such duty does not compel any party to agree to a proposal or to make any concession.

Art. 264. Duty to bargain collectively when there exists a collective bargaining agreement.

Duty to bargain collectively when there exists a collective bargaining agreement

Neither party shall terminate nor modify such agreement during its lifetime.

However:

Either party can serve a written notice to terminate or modify the agreement at least sixty (60) days prior to its expiration date.

Duty of both parties:

Keep the status quo
Continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties.

Duty to Bargain

The duty to bargain collectively arises only between the "employer" and its "employees."
While it is a mutual obligation of the parties to bargain, the employer, however, is not under any legal duty to initiate contract negotiation.
The mechanics of collective bargaining (jurisdictional preconditions) are set in motion only when the following conditions are present, namely:

possession of the status of majority representation of the employees' representative in accordance with any of the means of selection or designation provided for by the Labor Code;
proof of majority representation; and
a demand to bargain under Article 261, par. (a) of the Labor Code.

If the jurisdictional preconditions are present, the collective bargaining should begin within the "certification year" which means the 12 months following the determination and certification of the employees' exclusive bargaining representative.
The law contemplates two situations when the duty to bargain exists:

Where there is yet no collective bargaining agreement (Art. 262), and
Where a CBA exists. (Art. 264)

Duty to Bargain where there is yet no collective bargaining agreement

It is performance of an obligation to meet and convene.
The meeting and convening is for the purpose:

negotiating an agreement on the subjects of:

wages;
hours of work; and
all other terms and conditions of employment including proposals for adjusting grievances or questions arising under such agreement; and

executing a contract incorporating such agreement if requested by either party.

The kind compliance required is prompt, expeditious and in good faith.
The limitations of the duty are that it does not compel any party:

to agree to a proposal, or
to make a concession.

Duty to Bargain where a CBA exists.

It is the obligation not to terminate or modify the CBA during its lifetime which is:

five years for the representational ("political") provisions
three years for all other ("economic") provisions.

But 60 days before the CBA expires, either party may notify the other, in writing, that it desires to terminate or modify the negotiable provisions of the agreement.
During this 60-day notice period and until a new agreement is reached, the CBA remains in full force and effect and the parties (the employer and the bargaining union) are duty-bound to keep the status quo.

Violations of Duty to Bargain

Violating the duty to bargain, amounting to ULP, is committed in one or more of four ways:

failure or refusal to meet and convene;
evading the purposes of bargaining;
not observing good faith in bargaining; and/or
grossly violating the economic provisions of the CBA.

Expeditious Bargaining

Article 262 allows the parties to devise a more expeditious manner of collective bargaining.
In the absence of such agreement, the parties should observe the procedure described in the Code.

CBA Imposed on Employer

Article 262 allows the parties to expedite the bargaining process but not to evade the bargaining duty.
If the employer refused to bargain, it may be ordered that the union's draft CBA as the collective agreement that should govern the relationship between the parties.

Bargaining in Good Faith

A fair criterion of good faith in collective bargaining requires that the parties involved deal with each other with open and fair mind and sincerely endeavor to overcome obstacles or difficulties existing between them to the end that employment relations may be established and obstruction to the free flow of commerce prevented.
The duty to bargain in good faith is "an obligation to participate actively in the deliberation so as to indicate a present intention to find a basis for agreement."
Not only must the employer have an open mind and a sincere desire to reach an agreement but a sincere effort must be made to reach a common ground.

open mind + sincere desire + sincere effort = good faith

A complaint against " bargaining in bad faith " has to be raised while bargaining is still on-going.
Bargaining in bad faith is considered an unfair labor practice

Deadlock or impasse

There is deadlock over an issue when the parties bargaining in good faith, fail to resolve the issue despite efforts or attempts to do so and there are no definite plans for further efforts to harmonize their dissimilar positions.

Boulwarism

It is a proposal which is not subject to bargaining. (take-it-or-leave-it)

In effect, there was to be no bargaining and the union was rendered ineffective or irrelevant.

Disclosure of Information

During bargaining, employee representatives may be entitled to wage information and related data in order to negotiate effectively over the rates of compensation.

Contents of CBA

The subjects of provisions commonly found in collective bargaining agreements are:

Enumeration or reservation of management rights;
Union recognition and security;
Wage and fringe benefits and their administration;
Physical working conditions;
Particular matters affecting personnel management and plant operation;
Grievance and arbitration;
Duration of contract.
Programs to promote drug-free workplaces are required of employers and unions.

Modification

Sixty days before a CBA expires, either party notifies the other of its desire "to terminate or modify" the contract.
"To modify" does not necessarily mean "upward revision" of the provisions of the contract, such as increasing the wages and replacement of employment benefits, if justified by circumstances.

"Downward revision" is lawful but good faith is always a rule of conduct.

Ratification and Registration

Ratification

The agreement negotiated by the employees' bargaining agent should be ratified or approved by the majority of all the workers in the bargaining unit not just the members of the bargaining union.
The ratification and the way to do it are mandatory.

The CBA should be posted for at least five days in two conspicuous places in the establishment before ratification, to enable the workers to inform themselves of its provisions.
Moreover, the CBA to be submitted to the DOLE should carry the sworn statement of the union secretary, attested to by the union president, that the CBA had been duly posted and ratified.

These requirements are mandatory; noncompliance makes the CBA ineffective.

Registration

The collective agreement, after ratification, should be registered with the Bureau of Labor Relations or the DOLE Regional Office that has jurisdiction over the establishment.
The registration should be done within 30 calendar days from execution of the agreement.

Centralized or Decentralized Bargaining

"Decentralized"

A collective bargaining agreement is concluded in a particular enterprise and binds only that enterprise.
The common method of collective bargaining in the country.

"Centralized"

It takes place when collective bargaining is done with the intention of formulating a contract that will bind number of employer enterprises grouped by geographical location, or along industry line, or some other agreed basis of grouping of employers.
Multi-employer bargaining is optional for employers and unions.

Art. 265. Terms of a collective bargaining agreement.

Terms of a collective bargaining agreement:

Representation aspect

term of five (5) years

All other provisions

not later than three (3) years after its execution

Prohibition on:

Entertaining a petition

Questioning the majority status of the incumbent bargaining agent

Conducting certification election

Conditions on Prohibition:

by the Department of Labor and Employment
outside of the sixty-day period immediately before the date of expiry of five-year term of the CBA

Retroactivity of Agreements

Entered into within six (6) months from the date of expiry of CBA

shall retroact to the day immediately following such date

Entered into beyond six months,

parties shall agree on the duration of retroactivity thereof

Deadlock in the renegotiation of the CBA

parties may exercise their rights under this Code

Effectivity Date

Effectivity date if the CBA is an extension or renegotiation of an expiring one:

A CBA expires on December 31 and its renegotiation is finished within the next six months, then the renegotiated CBA dates back to January 1.
If no new CBA is concluded by June 30, then there will be no automatic retroaction; both the retroaction (if any) and the effectivity date of the new contract will be left to the parties to agree on.

In a CBA resulting from an arbitration award, the Secretary's determination of the retroactivity date shall control in the absence of agreement between the parties.

Automatic Renewal

But suppose the parties fail to renew or extend the expired CBA. Is there a CBA?
YES. It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties."
The law provides for automatic renewal and self-continuity of the CBA.

Duration of a CBA

A CBA lasts for:

five (5) years for the "representation aspect"
not more than three (3) years for "all other provisions."

"Representation aspect"

refers to the identity and majority status of the union that negotiated the CBA as the exclusive bargaining representative.

"All other provisions"

simply refers to the rest of the CBA, economic as well as noneconomic, except representational, provisions.
Ex:

redefining the inclusions or exclusions of the bargaining unit

May the parties agree on a CBA that will last longer than three years? YES

Given the peculiar circumstances of a case, the 10-year suspension of the CBA was valid and not in conflict with Article 265. (Rivera, et al., January 23, 2002)

The union's action and the resulting memorandum of agreement, supported by the union members and needed for the survival of the company, were upheld by the Court of Appeals and the Supreme Court. (Insular Hotel Employees Union-NFL, September 22, 2010)

Art. 266. Injunction prohibited.

Injunction prohibited:

any case involving or growing out of labor disputes

Exception:

Art. 226

Ocular Inspection (NLRC)

Art. 279

Prohibited Activities (Strikes)

Notes

The no-injunction policy on labor disputes means that disputes between employers and employees, unionized or not, should preferably be resolved by them instead of by government command.
General Rule: Primacy of bargaining and voluntary modes of settling labor disputes.
Exception: Government intervention.
Injunctive writ is not favored.
An order or writ of injunction:

commands a person to do or not to do a particular act.
may be issued in instances dealing with prohibited activities in the course of a strike or lockout.
The injunction is directed against the illegal activities, not against the strike itself.

"National interest" cases:

An injunction may be issued automatically by the Secretary of Labor even when none of the parties asks for it.
The injunction is directed against the strike itself and is meant to protect public welfare.

Art. 267. Exclusive bargaining representation and workers’ participation in policy and decision-making.

Exclusive bargaining representation

labor organization designated or selected by the majority of the employees
individual employee or group of employees may present grievances to their employer

Workers’ participation in policy and decision-making

right to participate in policy and decision-making processes

directly affecting their rights, benefits and welfare

right to form labor-management councils

elected by at least the majority of all employees

"CBU": The Employees Represented in Bargaining;

"CBU" Not the Same as the Union

Collective Bargaining Unit (CBU)

the group of employees that will deal or negotiate as group with their employer.
This group has to be organized and registered.
This formalized organization is union.

Bargaining Unit

refers to a group of employees sharing mutual interests within a given within employer unit, comprised of all or less than all of the entire body of employees in the employer unit or any specific occupational or geographical grouping within such employer unit.

"Appropriate" CBU

The CBU should be "appropriate," = CBU members should share community or mutuality of interest.
Their problems — the matters they want to raise to their employer — should be substantially similar if not the same.
This is preferred because the basic test of a bargaining unit's acceptability [or appropriateness] is whether it will best assure to all employees the exercise of their collective bargaining rights.
Commonality of interests defines "appropriateness" of the bargaining unit.

One Employer One Unit

The law prefers to consider as one bargaining unit all the employees in one enterprise, except that supervisors and rank-and-file should constitute separate units.
However, two separate corporations cannot be treated as a single bargaining unit even if their businesses are related.

Two different employers make two different bargaining units.

"EBR": The Bargaining Representative

"EBR" — exclusive bargaining representative

The union chosen by the CBU members to represent them in bargaining with the employer.

The representational rivalry has to be resolved through an election among the CBU members.

the unit is the group represented;
the union is the representative of that unit;
the unit is the principal;
the union is the agent.

It is the unit (not only the union members) that is

represented in negotiating a CBA with the employer.
votes to reject or to accept the draft CBA.

Only the union members, excluding the rest of the unit:

decides whether to strike or not

Employee's Right to Participate

What is the extent of the employee's participatory right?

The Highest Court has explained that the participatory right does not carry management powers. It does not turn employees or their union into co-managers of the enterprise. The participatory right does not give authority to approve or disapprove a policy or a managerial decision. It gives opportunity to suggest, to express opinions, but not power to say yes or no to a projected decision. It implies right of expression, not a power to decide business or management issues.

Labor-Management Councils (LMC)

Promotion of employees' participation is likewise the reason the law allows (but does not require) the formation of:

labor-management councils (Art. 267) or
labor-management committee. (Art. 292[h])

The Rules mandate the DOLE to promote the formation of labor-management councils in organized and unorganized establishments.

An LMC, either as council or committee or cooperation program, can serve as a forum where management and employees may air their concerns, short of collective bargaining.

It is largely a communication mechanism for myriad purposes including prevention or resolution of disputes.
It can even act as a grievance machinery.

Still, effectively voicing one's grievance is reserved and hallowed by law, with or without collective bargaining, with or without the EBR or an LMC.

Art. 268. Representation issue in organized establishments.

Procedure in Organized Establishments

Filing of a verified petition

questioning the majority status of the incumbent bargaining agent
by any legitimate labor organization

including a national union or federation which

has already issued a charter certificate to its local chapter participating in the certification election

local chapter which

has been issued a charter certificate by the national union or federation before the Department of Labor and Employment within the sixty (60)-day period before the expiration of the collective bargaining agreement

supported by the written consent of at least twenty-five percent (25%) of all the employees in the bargaining unit

Automatically Ordering of an Election

by the Med-Arbiter
secret ballot

Valid Election

at least a majority of all eligible voters in the unit must have cast their votes
labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit

Run-off Election Requisites

A run-off election shall be conducted between the labor unions receiving the two highest number of votes if:

When an election which provides for three or more choices results in no choice receiving a majority of the valid votes cast
The total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast.

In cases where the petition was filed by a national union or federation, it shall not be required to disclose the names of the local chapter's officers and members

Expiration of the freedom period

Employer shall continue to recognize the majority status of the incumbent bargaining agent where no petition for certification election is filed

Art. 269. Petitions in unorganized establishments.

Procedure in Unorganized Establishments

Filing of a Petition

by any legitimate labor organization

including a national union or federation which

has already issued a charter certificate to its local/chapter participating in the certification election

a local/chapter which

has been issued a charter certificate by the national union or federation.

Automatic Certification Election

conducted by the Med-Arbiter

Petition was filed by a national union or federation

Not be required to disclose the names of the local chapter's officers and members

Methods of Choosing the Bargaining Union

The union that will represent the bargaining unit is chosen through one of three methods:

SEBA certification
Certification Election, and
Consent Election

SEBA Certification

SEBA Certification happens when a union proves to the DOLE regional office that:

the bargaining unit has no existing CBA;
the requesting union the only union in the bargaining unit; and
such union's membership comprises the majority of the employees in the bargaining unit.

If anyone of these three requisites is not proved, the requested certification cannot be be granted.
In that case, the DOLE has to treat the union's request as a petition for a certification election (PCE).
On the other hand, if the SEBA Certification is granted, the union becomes the EBR (exclusive bargaining representative) or SEBA (sole and exclusive bargaining agent).
The certification has to be posted for 15 days at conspicuous places at the workplace.
Upon issuance of the certification, the certified union becomes entitled to all the rights and privileges of an exclusive bargaining agent of the bargaining unit.
It shall take steps to initiate negotiation for a CBA.

This it must do within one year from its being certified.
Within this one-year period, as a rule, a petition (from another union) seeking to replace the bargaining agent will not be entertained by DOLE.

Certification Election (C.E.)

Where SEBA certification does not or cannot happen, a union selection through election should take place.
The process is properly called "certification election" because it serves as the official, reliable and democratic basis for the DOLE to determine and name (or "certify") the union that shall represent the employees in bargaining with the employer.
Logically, it is also called "representation election."

Where and When C.E. May Happen

C.E. may take place in either an:

organized company (Art. 268) or
unorganized company. (Art. 269)

PCE in Unorganized Company

A company is said to be "unorganized" if there is yet no duly recognized or certified bargaining union.
In a nonunionized company, a C.E., after DOLE's approval of a petition for certification election, may be held anytime, except within 12 months of a previous C.E.
Once a PCE is filed by a legitimate labor organization involving an unorganized establishment, the Med-Arbiter shall automatically order the conduct of a certification election, and that order cannot be appealed, in line with the policy to promote unionization.

Equity of the Incumbent

In an organized company, i.e., where there is already a bargaining union, C.E. cannot be held anytime.
A petition to hold a C.E. can be filed only within the so-called "freedom period" which is the last 60 days of the fifth year of the CBA.
If there is no such petition or such petition is denied, no C.E. will take place and the incumbent union continues being the bargaining agent.
All throughout the five-year life of the CBA, including the "freedom period," and thereafter, the bargaining union remains as the employees' representative, until duly replaced by a challenger union.
Even during the "freedom period" it can renegotiate the expiring CBA with the employer, except that the Med-Arbiter may order to suspend the renegotiation if a petition for C.E. has been filed within the "freedom period" and the petition needs to be resolved.
Even a change of officers does not terminate the status union as the bargaining agent.

This is so, because the bargaining agent is the union itself as an entity, not the union officers.

PCE in Organized Company

In an organized company, the PCE is filed by a union that wants to replace the incumbent union.

Such union (the challenger) may be:

an independent union,
a chapter of a federation, or
the federation itself;

in any case, it has to be an LLO, a legitimate (registered) labor organization.

If the petitioner is a national union or federation, it cannot be required to disclose the names of the officers of the local chapter.

This non-disclosure rule is intended to protect the local officers from possible adverse reaction of the employer.

The incumbent union does not file a petition for C.E. because it does not challenge itself.

But is necessary party, a "forced intervenor," when a petition tor a C.E. is filed by a challenger union(s).

An employer, under Article 270, may file such a petition.
The PCE filed by a rival legitimate labor union with a Med-Arbiter in the DOLE Regional Office that has jurisdiction over the principal office of the employer.

But where the employees work place is located in another region, the convenience of the workers, as the economically disadvantaged party should be given greater consideration.

The PCE should be supported by the written consent of at least 25% of the employees in the bargaining unit.

The 25% support is intended to indicate whether the petitioner union has a sizeable membership to possibly win and replace the incumbent union.
Without the 25% support, the petition would look like a nuisance.

Withdrawals made:

before the filing of the petition are presumed voluntary;
done after the filing are deemed involuntary.

Even when the sufficiency of the 25% support is in doubt, the Med-Arbiter still has the discretion to call a C.E. since an election is the democratic way of determining the employees' choice.
After receipt of the petition for C.E., the Med-Arbiter calls the parties to a preliminary conference:

to identify the bargaining unit to be represented
to explore the possibility of a consent election
to verify the existence of any of the bars or legal objections to the holding of a certification election, and
such other relevant matters.

If at the preliminary conference

the unions agree to hold a consent election

the PCE will no longer be heard and the unions will instead prepare for the consent election.

the unions fail to agree to hold a consent election

the Med-Arbiter may deny and dismiss, or
He may grant the petition for a C.E.

Denial or grant of the petition is always appealable to the Secretary.

Consent Election Instead of C.E.

If the contending unions agree to hold a consent election, the Med- Arbiter shall not issue an order for holding a certification election.
He shall enter the fact of the unions agreement in the minutes of the hearing and schedule a pre-election conference.
The Regional Director will immediately designate an election officer to assist the Med-Arbiter.
Thus, "Consent Election" means an election voluntarily agreed upon by the contending unions, with or without the intervention of the Department, to determine which union carries the majority of the workers in the appropriate collective bargaining unit.
The result of a consent election binds the parties.

Election Bars

Aside from observing the freedom period and obtaining a 25% support, the petitioner union must meet three more "negative requisites" for the holding of a certification election:

Certification Year Bar

No C.E. may be held within 12 months from a previous C.E., or a consent election, or a run-off election or SEBA Certification;
Only one C.E. is allowed in a 12-month period.
But the 12-month prohibition presupposes that there has been an actual conduct of election, i.e., ballots were cast and votes were counted.

Deadlock Bar

No C.E. may be held if there is a pending bargaining deadlock which has been submitted to conciliation or arbitration or has become the subject of a valid notice of strike or lockout.

Contract Bar

Where there is an existing CBA which has been duly registered, a petition for C.E. may be filed only within the "freedom period" which is the last 60 days of the fifth year of the CBA.
In the period before that, i.e., within the preceding four years and 10 months, no petition for C.E. may be entertained; the subsisting contract must be respected.
During the 60-day freedom period, the parties may renegotiate and conclude a CBA, unless ordered not to do so.
In any case, such "early agreement" does not adversely affect the representation case.

Question of Union Legitimacy

If the legitimacy of the union that filed a PCE is questioned in a petition to cancel its registration, such question does not suspend hearing the petition for C.E.
The PCE may be dismissed if the union's legal personality has been revoked or cancelled with finality; hence, mere pendency of a petition to cancel the union's registration is not reason enough to dismiss a petition for C.E
Moreover, the question of whether or not the petitioner is an LLO cannot be raised in the PCE itself; it can be raised only in a separate and independent petition for cancellation.
Objection to the legitimacy of the union is estopped or barred if holding the C.E. was "by agreement of the parties." By such agreement, the legal personality of the petitioner union is deemed acknowledged.

Voters

Before a C.E. is held, a pre-election conference has to be conducted by an election officer designated by the DOLE regional director. The conference:

sets the mechanics of the election.
determines the list of qualified voters.

All employees within the bargaining unit at least three months before the filing of the PCE shall be eligible to vote, including a dismissed employee whose dismissal is being contested in a pending case unless the dismissal was declared valid in a final judgment at the time of the conduct of the CE.
Voting in a C.E. requires only membership in the bargaining unit.

It does not require membership in the union because C.E. elects a bargaining union; it does not elect union officers.

Even probationary employees, and employees who are Iglesia ni Cristo members are entitled to vote in a C.E., if they are part of the bargaining unit.

Required Vote

To have a valid election, a majority (50% + 1) of the qualified voters should vote.
But the winning vote is not majority of the voters, nor majority of the votes cast, but majority of the valid votes cast;

The valid votes should be segregated from the invalid ones, and only the valid votes should decide the winner.

If not one of the unions gets the majority of the valid votes, then none of them wins.

Run-off Election

There may be a run-off election if the combined votes for the contending unions total at least 50% of the votes cast.

If this is so, the unions that received the two highest votes will face a rematch in the run-off.
The "No Union" choice is excluded in a run-off.

The run-off should be held in 10 days unless an election protest has been filed and needs to be resolved first.

A protest should be formalized before the med-arbiter within five days from the close of the proceedings; otherwise, the protest is deemed waived or abandoned. (Timbungco, 183 SCRA 140 [1990]; see the IRR. of Book V, Rule IX)

To summarize, the requisites for holding a run-off election are the:

There has been "enough" turn-out of voters, i.e., at least 50% plus one of the CBU actually voted; otherwise, there is a "failure of election" (see below).
There are at least two contending unions.
Not one of the unions obtained the majority of the valid votes.
The votes for the unions, added together, equal at least one-half of the total votes cast.
There is no pending challenge or objection to the election.

Only the unions that received the highest and the next highest votes shall join the run-off. The "no union" choice is out.
Example:

The collective bargaining unit has 100 members. 80 voted.
Union One received 40 votes; Union Two, 20; and No Union, 20. No invalid votes.
In this example, there is no winner, not even Union One because it failed to get at least 41 votes which is the majority (50% + 1) of the 8 valid votes.
But the desire of the employees to have a union is evident from the fac

If not one of the unions wins in the run-off, then the company remains ununionized for at least 12 months until an interested union again files a petition to hold a C.E. and gets the needed vote.
Union politics is spaces by the 12-month bar.

Re-run Different from Run-off Election

Run-off election should be differentiated from re-run election.
When a certification or a consent or a run-off election results in a tie between two choices, the election officer shall immediately notify the parties of a re-run election within five days from the certification, consent or run-off election.
The DOLE rules say that the re-run election shall be conducted within 10 days after the posting of notice. (D.O. No. 40-1-15)
The choice (or the candidate) receiving the highest votes cast during the re-run election shall be declared the winner and shall be certified accordingly.
Re-run election also is held in case of failure of election.

Failure of Election

A failure of election occurs when less than majority of the CBU members voted.
In that case, the Election Officer shall declare a failure of election in the minutes of the election proceedings.
After such declaration, a motion may be filed for the immediate holding of a re-run certification election or a consent election within six months from the date of declaration of failure of election.
Therefore, the 12-month bar does not apply where there has been a failure of election.
Within 24 hours from receipt of the motion, the Election officer shall immediately schedule the conduct of another certification or consent election within 15 days from receipt of the motion.
He shall post the notice of certification election in two most conspicuous places in the establishment at least 10 days prior to the election.
The same guidelines and list of voters used m the failed election shall be used in the re-run election.

Certifications Election Different from Union Election

A union election

Selects the officers of the union;
In a union election, the voters are only the members of that union;
A union election is held in accordance with the union's constitution and by-laws;

Certification election (C.E.) selects the particular union that will represent the bargaining unit in bargaining with the employer.

In C.E., the voters are all the employees belonging to the bargaining unit regardless of union membership.
A C.E. is held in accordance with the order of a Med-Arbiter upon petition of a proper party, usually a union.

Art. 270. When an employer may file petition.

Own Notes

When an employer may file petition to Bureau.

Employer can file a petition with the Bureau when requested to engage in collective bargaining.
If no certified collective bargaining agreement exists in the unit, after a hearing, the Bureau will order a certification election.
All certification cases must be resolved within 20 working days.
The Bureau must conduct the certification election within 20 days as per the Secretary of Labor's regulations.

Art. 271. Employer as Bystander.

Own Notes

Employer as Bystander.

whether the petition for certification election is filed by:

employer or
legitimate labor organization

employer shall not be considered a party thereto with a concomitant right to oppose a petition for certification election

Employer's participation in such proceedings shall be limited to:

being notified or informed of petitions of such nature; and
submitting the list of employees during the pre-election conference should the Med-Arbiter act favorably on the petition.

Note:

Employer's participation in such proceedings shall be limited to:

being notified or informed of petitions of such nature; and
submitting the list of employees during the pre-election conference should the Med-Arbiter act favorably on the petition.

Art. 272. Appeal from certification election orders.

Appeal from certification election orders.

Any party to an election appeal the order or results of the election
Med-Arbiter ➡ Secretary of Labor and Employment
Ground: the rules and regulations for the conduct of the election have been violated.
Decision: within fifteen (15) calendar days.

Appeal

The order granting the conduct of a certification election in an unorganized establishment is not appealable.

Any issue arising from such order may be raised by means of protest on the conduct and results of the certification election.

The order granting the conduct of a certification election in an organized establishment and the decision dismissing or denying the petition, whether in an organized or unorganized establishment, may be appealed to the Office of the Secretary within 10 days from receipt thereof. d.
Where no appeal is filed within the 10-day period, the Med-Arbiter shall enter the finality of the order/decision in the records of the case and transmit the records of the petition to the Regional Director.
Where there is appeal, a reply to the appeal may be filed by any party to the petition within 10 days from receipt of the memorandum of appeal.
The reply shall be filed directly with the Office of the Secretary.
The decision of the Secretary shall become final and executory after 10 days from receipt by the parties. Within 48 hours from notice o receipt decision by the parties and finality of the decision, the office of the Secretary shall remand the entire records to the Regional Office for implementation.
Implementation of the Secretary's decision shall proceed unless restrained by the appropriate court, i.e, the Court of Appeals.

Suggested Questions:

What is the procedure in collective bargaining?

The following is the procedure in collective bargaining:

Proposal

A party desiring to negotiate serves a written notice upon the other party with statement of its proposals.
The other party shall respond within 10 calendar days from receipt.

Conference

Either party may request for a conference if difference arises on notice and reply.
The conference shall begin within 10 calendar days from request.

Board Intervention

The Board shall intervene upon request or in its own initiative if disputes are not settled.

What is the meaning of duty to bargain collectively pursuant to the Labor Code? Is there any difference in the duties if a CBA exists or not? Explain.

The duty to bargain collectively is the mutual obligation of the employer and the bargaining agent to meet and convene on the terms and conditions of employment in good faith.
If there is a collective bargaining agreement, the parties are obliged to upheld and not to terminate nor modify the agreement during its lifetime.
However, if there is no collective bargaining agreement, the employer and the representative of the employees may still bargain in accordance with the provisions of the Labor Code.

Briefly explain the four ULP in bargaining identified by the author of your book with illustrative cases.

The four acts of Unfair Labor Practice are:

Failure or refusal to meet or convene

It is when an employer refuses to bargain with the representative of the employees.
Illustrative Case: An employer who does not recognize the existence of a union representing the employees for collective bargaining.

Evading mandatory subjects of bargaining

It is when an employer refuses to bargain on the labor standards and terms and conditions of employment which are mandatory.
Illustrative Case: An employer who refuses to hear the employees’ concern on working hours.

Bad faith in bargaining

It is when an employer lacks sincerity and intention in bargaining with the representative of the employees.
Illustrative Case: An employer who deliberately delays the schedule of bargaining to avoid such.

Gross violation of the Collective Bargaining Agreement

It is when an employer violates a provision in the Collective Bargaining Agreement.
Illustrative Case: An employer who fails to comply with the working hours specified in the Collective Bargaining Agreement

Briefly explain the following terms:

(a) Surface Bargaining

(b) Blue-Sky Bargaining

(c) Boulwarism

a. Surface bargaining is a type of bargaining where the parties negotiate but there are no legal intentions of reaching an agreement.
b. Blue Sky bargaining is a type of bargaining where there are exaggerated or unreasonable proposals by either party.
c. Boulwarism is giving a proposal which is not subject to bargaining, a take-it-or-leave-it offer. In a sense, there is no bargaining at all.

Explain the life cycle of a CBA from its juridical preconditions, procedure, ratification to renegotiation, including its effectivity, duration and retroactivity.

The terms of a Collective Bargaining Agreement shall be five years for representation aspect and not more than three years for all other provisions.
The Department of Labor shall not entertain a petition questioning the majority status of the bargaining agent as well as conduct a certification election until 60 days before the expiration of the Collective Bargaining Agreement, called the “freedom period.’
During the freedom period, the parties may renegotiate a Collective Bargaining Agreement. The Collective Bargaining Agreement must be ratified by the majority of all the workers in the bargaining unit.
If an agreement is entered within six months from the expiration of the Collective Bargaining Agreement, it shall retroact to the day immediately following such.
If an agreement is entered beyond six months from the expiration of the Collective Bargaining Agreement, the parties shall agree on the retroactivity.

What are the factors considered in determining the appropriateness of a collective bargaining unit?

There must be a community of interest in order to determine the appropriateness of a collective bargaining unit, the factors considered, among others, are:

Similarity of earnings
Similarity of benefits and conditions of employment
Similarity in the work performed
Similarity in qualifications and skills
Intention of the employees

What are the three methods to determine the bargaining unit? Explain each method

SEBA Certification

The Department of Labor and Employment requires proof from the applicant union such as the absence of an existing Collective Bargaining Agreement, sole union in the bargaining unit, and majority membership of employees.
The SEBA Certification is granted by the Department of Labor and Employment and the union becomes the exclusive bargaining representative or sole and exclusive bargaining agent.

Certification Election

It is an electoral process to determine the exclusive bargaining representative of the unit in accordance with the provisions of the Labor Code.
It may be conducted in an organized or unorganized company.

Consent Election

It is an election voluntarily agreed upon by the contending unions to determine which union should represent the union.
It may be conducted with or without intervention of the Department of Labor and Employment.

Briefly explain the eight grounds in which the Med Arbiter may disapprove a Petition for Certification Election.

The following are the grounds in which the Med Arbiter may disapprove a Petition for Certification Election:

Non-Appearance

It is when the petitioner failed to appear in two consecutive conferences despite notice.

Unregistered Union

It is when the petitioning union is not registered with Department of Labor and Employment or the certificate of registration was revoked.

Union without Charter

It is when the petitioning union failed to submit a charter certificate.

No Employer-Employee Relationship

It is when there is no employer-employee relationship between the supposed employer and the members of the petitioning union.

Election Bar (12 months)

It is when there was a valid certification election, consent election or run-off election held within 12 months prior to filing of the petition.

Deadlock

It is when there exists a collective bargaining deadlock.

Existing Collective Bargaining Agreement

It is when the petition was filed outside of the freedom period of an existing Collective Bargaining Agreement.

Lack of Support

It is when the petition as not supported by at least 25% of the bargaining unit.

Company X is a Pharmaceutical Company, composed of 400 regular rank and file employees, 50 probationary employees, 30 supervisory employees, and 20 managerial employees. Among the rank and file employees, a certification election was ordered conducted by the Med Arbiter.

Contending parties obtained the following votes

Union A — 80

Union B — 75

Union C — 45

Union D — 35

No Union — 1

Spoiled Votes — 4

Challenged Votes — 150

The challenged votes were those cast by members of a religious group who are not allowed to be members of the union, the votes cast by probationary employees and the votes cast by supervisory employees. Were the votes properly segregated? Explain.

No, the challenged votes were not properly segregated.

Even probationary employees (who have already served for three months), and employees who are Iglesia ni Cristo (who will vote for non-union) members are entitled to vote in a C.E., if they are part of the bargaining unit.
However, for the supervisory employees, their votes must be segregated because they are not eligible to join the union of rank-and-file employees.

Assuming that there were no challenged votes, was there a valid election in the instant case? Explain.

Yes, because the total number of votes (390) constituted more than the majority (201) of all the employees.

Considering the challenged votes, was there a valid election in the instant case? Explain.

No, there was no valid election because the total number of votes (240 votes) did not constitute the majority of the eligible employees (480 votes).
In order for an election to be valid, majority (50% + 1) of the qualified voters in the bargaining unit should vote. Since managerial employees are not qualified to vote, they are excluded from the eligible employees. Also, since all the challenged votes are disregarded, the total votes are reduced to 240. The requirement of at least 241 votes is not satisfied.

Should Union A be declared as the exclusive bargaining representative? Explain.

No, Union A should not be declared the exclusive bargaining representative even if it received the highest votes (80).
To be declared the winner, a union must receive the majority of the valid votes cast, in this case, the majority of 236 votes if the challenged votes are not considered. The union must garner at least 119 votes to be declared as the exclusive bargaining representative.

Is a Run Off election proper in the instant case? Explain.

Yes, a run-off election is proper.
A run-off election is necessary if no union received the majority of the valid votes cast among three or more contending unions. A run-off election shall be conducted between the unions who received the two highest votes.
In this case, a run-off election should be conducted between Union A and Union B who garnered the highest and the next highest votes among the contending unions.

What are the mandatory subjects of bargaining?

The subjects of provisions commonly found in collective bargaining agreements are:

Enumeration or reservation of management rights;
Union recognition and security;
Wage and fringe benefits and their administration;
Physical working conditions;
Particular matters affecting personnel management and plant operation;
Grievance and arbitration;
Duration of contract.
Programs to promote drug-free workplaces are required of employers and unions.

Q: Explain the Interboro Doctrine.

A rule applied in labor-law cases to determine whether a single employee acting alone is nonetheless engaging in concerted activity protected under the National Labor Relations Act.

This doctrine states that if an individual employee honestly and reasonably believes they have a right under a collective bargaining agreement (CBA) and asserts that right, even if their belief is incorrect, their action is considered protected "concerted activity."

What is the equity of the incumbent?

Title VII-A

Grievance Machinery and Voluntary Arbitration

Art. 273. Grievance machinery and voluntary arbitration.

Mandatory Provision

The parties to a Collective Bargaining Agreement shall include therein provisions that will ensure the mutual observance of its terms and conditions.
They shall establish a machinery for the adjustment and resolution of grievances arising from the:

interpretation or implementation of their Collective Bargaining Agreement and
interpretation or enforcement of company personnel policies

Voluntary Arbitration

All grievances submitted to the grievance machinery which are not settled within seven (7) calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the Collective Bargaining Agreement.

Voluntary Arbitrator

For this purpose, parties to a Collective Bargaining Agreement shall:

name and designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators, or
include in the agreement a procedure for the selection of such Voluntary Arbitrator or panel of Voluntary Arbitrators, preferably from the listing of qualified Voluntary Arbitrators duly accredited by the Board.

In case the parties fail to select a Voluntary Arbitrator or panel of Voluntary Arbitrators, the Board shall designate the Voluntary Arbitrator or panel of Voluntary Arbitrators, as may be necessary, pursuant to the selection procedure agreed upon in the Collective Bargaining Agreement, which shall act with the same force and effect as if the Arbitrator or panel of Arbitrators has been selected by the parties as described above.

Contract as Law

The provisions of the collective bargaining agreement must be respected since its terms and conditions constitute the "law between the parties."
Those who are entitled to its benefits can demand fulfillment of an obligation imposed by the contract, otherwise, the aggrieved party has the right to seek redress. (See Roche [Philippines], et al. v. National Labor Relations

Grievance

All grievances arising from the implementation or interpretation of the collective bargaining agreement and/or interpretation and enforcement of company personnel policies are compulsorily subject to the grievance machinery.
A grievance is defined as "any question by either the employer or the union regarding the interpretation or application of the collective bargaining agreement or company personnel policies or any claim by either party that the other party is violating any provision of the CBA or company personnel policies."
A grievance procedure is a "must" provision in any CBA; without it the CBA is not registrable.

Voluntary Arbitration

The policy of the State is to encourage voluntary arbitration of any and all labor-management disputes. Before or at any stage of the compulsory arbitration process, the parties may opt to submit their dispute to voluntary arbitration.
Voluntary arbitration is defined as a contractual proceedings where the parties to a dispute select a judge of their own choice and by consent submit their controversy to him for determination.
In Philippine context, the "judge" in:

voluntary arbitration = arbitrator
compulsory arbitration = labor arbiter.

A voluntary arbitrator "is not a public tribunal imposed upon the parties by a superior authority which the parties are obliged to accept.

He is a private judicial system.
A VA is an impartial third person authorized by the parties to make a final and binding decision or award.

Arbitration may be initiated either by:

a Submission Agreement or
by a Demand or Notice invoking a collective agreement arbitration clause

Sometimes both instruments are used in a case.

Either instrument indicates the issues for arbitration and the arbitrator's extent of authority.

Art. 274. Jurisdiction of Voluntary Arbitrators or panel of Voluntary Arbitrators.

Jurisdiction of Voluntary Arbitrators or panel of Voluntary Arbitrators.

Original and exclusive jurisdiction

Hear and decide all unresolved grievances arising from the:

interpretation or implementation of the Collective Bargaining Agreement and
interpretation or enforcement of company personnel policies

Violations of a Collective Bargaining Agreement

except those which are gross in character
shall no longer be treated as unfair labor practice and shall be resolved as grievances under the Collective Bargaining Agreement

Gross violations of Collective Bargaining Agreement

shall mean flagrant and/or malicious refusal to comply with the economic provisions of such agreement.

Commission, Regional Offices, Regional Directors

Shall not entertain disputes, grievances or matters under the exclusive and original jurisdiction of the Voluntary Arbitrator or panel of Voluntary Arbitrators and shall immediately dispose and refer the same to the Grievance Machinery or Voluntary Arbitration provided in the Collective Bargaining Agreement.

Art. 275. Jurisdiction over other labor disputes.

Jurisdiction over other labor disputes.

upon agreement of the parties:

unfair labor practices and
bargaining deadlocks

Notes

Voluntary Arbitrator (or panel of Voluntary Arbitrators) original and exclusive jurisdiction to hear and decide all unresolved grievances arising from the:

interpretation or implementation of the collective bargaining agreement
interpretation or enforcement of company personnel policies
violations of a CBA if not resolved through the grievance machinery

If the violations, however, are "gross" in character, these are to be treated as unfair labor practice which are to be heard and decided by a labor arbiter.

"Gross violations" refer to flagrant and/or malicious refusal to comply with the economic provisions of the CBA.
Even in gross violation cases, Article 275 allows the parties to submit the ULP case to a voluntary arbitrator.
In fact, even bargaining deadlocks and "all other disputes" may, by agreement of the parties, be considered proper subject of voluntary arbitration.

Matters beyond the competence of voluntary arbitrator are beyond his jurisdiction, such as a question of taxation.

An employee dismissal dispute may be submitted by the parties to voluntary arbitration, but in the absence of such agreement in clear and unequivocal language, the dispute should be lodged with a labor arbiter.

Art. 276. Procedures.

Powers of the Voluntary Arbitrator

hold hearings
receive evidences
take whatever action is necessary to resolve the issue or issues subject of the dispute, including efforts to effect a voluntary settlement between parties.

Attendance to the the arbitration proceedings

All parties to the dispute shall be entitled to attend the arbitration proceedings.
The attendance of any third party or the exclusion of any witness from the proceedings shall be determined by the Voluntary Arbitrator or panel of Voluntary Arbitrators.
Hearing may be adjourned for cause or upon agreement by the parties.

Award or Decision

Unless the parties agree otherwise, it shall be mandatory for the Voluntary Arbitrator or panel of Voluntary Arbitrators to render an award or decision within twenty (20) calendar days from the date of submission of the dispute to voluntary arbitration.

Award or Decision Contents

The award or decision of the Voluntary Arbitrator or panel of Voluntary Arbitrators shall contain the facts and the law on which it is based.
It shall be final and executory after ten (10) calendar days from receipt of the copy of the award or decision by the parties.

Writ of Execution

Upon motion of any interested party, the Voluntary Arbitrator or panel of Voluntary Arbitrators or the Labor Arbiter in the region where the movant resides, in case of the absence or incapacity of the Voluntary Arbitrator or panel of Voluntary Arbitrators, for any reason, may issue a writ of execution requiring either the sheriff of the Commission or regular courts or any public official whom the parties may designate in the submission agreement to execute the final decision, order or award.

Notes:

A voluntary arbitrator is chosen by the disputants themselves.
The arbitrator's decision is "final and executory" after ten days from receipt of such decision.
But the courts, ultimately the Supreme Court, possesses the power judicial review.

This power may be exercised to review decisions of voluntary arbitrators.
The power is invoked through a petition for certiorari (under Rule 65 of the Revised Rules of Court) which has to allege a grave abuse discretion or an act without or in excess of jurisdiction on the part of the voluntary arbitrator.
Petitions of this nature are remanded to the Court of Appeals by the Supreme Court as a matter of policy.

Art. 277. Cost of voluntary arbitration and Voluntary Arbitrator’s fee.

Cost of voluntary arbitration and Voluntary Arbitrator’s fee.

The parties to a Collective Bargaining Agreement shall provide therein a proportionate sharing scheme on the cost of voluntary arbitration including the Voluntary Arbitrator’s fee.
The fixing of fee of Voluntary Arbitrators, whether shouldered wholly by the parties or subsidized by the Special Voluntary Arbitration Fund, shall take into account the following factors:

Nature of the case;
Time consumed in hearing the case;
Professional standing of the Voluntary Arbitrator;
Capacity to pay of the parties; and
Fees provided for in the Revised Rules of Court.

Notes:

If there is valid ground for filing a petition for certiorari, must a motion for reconsideration (M.R.) be filed first? No. n.
Disallowing an M.R. in this administrative rule has no basis in the Labor Code, and it overturns previous court rulings.

In any case, the Supreme Court in a recent decision emphasizes that filing a motion for reconsideration is an inherent requisite of a petition for a writ of certiorari.
A motion for reconsideration is an opportunity for an office to correct itself.
Disallowing an MR is deprivation of such opportunity.

Suggested Questions:

What is a grievance?

Grievance is a question by either party regarding the interpretation or application of the collective bargaining agreement or company personnel policies or claim of either party on violations of such agreement or policies.

Explain the procedure in resolving a grievance from the employer to the Voluntary Arbitrator.

The Voluntary Arbitrator shall have the power to conduct hearings and receive evidence, or take necessary actions to resolve disputes. Any party to the dispute may attend the arbitration proceedings. However, attendance of third parties is at the discretion of the Arbitrator.
Upon agreement, hearings may be adjourned.
Within 20 calendar days from the submission to the arbitration, the Voluntary Arbitrator is mandated to render an award or decision, unless otherwise agreed by the parties.
After ten days from the receipt of the decision by the parties, the decision becomes final and executory. However, the Supreme Court may still exercise judicial review.
Upon motion, the Arbitrator or Labor Arbiter may issue a writ of execution for the final decision.

Title VIII

Strikes and Lockouts and Foreign Involvement in Trade Unions

Chapter I

Strikes and Lockouts

Art. 278. Strikes, picketing and lockouts.

Policy and Rights:

State policy encourages free trade unionism and collective bargaining.
Workers have the right to engage in concerted activities for collective bargaining or mutual benefit.
Recognizes the right of legitimate labor organizations to strike and picket, and employers to lockout, but with limitations.

Bargaining Deadlocks:

Duly certified bargaining agent must file a notice of strike or the employer a notice of lockout 30 days before the intended date (15 days for unfair labor practices).
Immediate action allowed in cases of union officers' dismissal constituting union busting.

Cooling-off Period:

Ministry intervenes in mediation and conciliation during the 30-day cooling-off period.

Decision to Strike/Lockout:

Strike decision needs approval by a majority of union members through secret ballot.
Lockout decision needs approval by a majority of the board of directors or partners through secret ballot.
Valid for the duration of the dispute based on substantially the same grounds considered during the vote.

Secretary of Labor's Jurisdiction:

Secretary may assume jurisdiction over disputes in industries indispensable to the national interest.
Assumption or certification automatically enjoins the intended or impending strike or lockout.
In hospitals and medical institutions, efforts to avoid strikes and lockouts are emphasized, and a skeletal workforce is required for emergency cases.

Presidential Intervention:

The President may determine industries indispensable to national interest and intervene in labor disputes.

Voluntary Arbitration:

Parties may opt for voluntary arbitration before or during the compulsory arbitration process.

Finality of Decision:

Secretary of Labor, Commission, or voluntary arbitrator's decision is final and executory ten calendar days after receipt by the parties.

A Valid Strike Needs A Labor Dispute

Strike

any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. (Article 219)

Labor dispute

includes any controversy or matter concerning terms and conditions of employment 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. (Article 219)

A strike is recognized and protected only if the work stoppage is brought about by:

disagreements regarding terms and conditions of employment or
regarding ways to arrange or adjust those terms and conditions.

Where there is no dispute or the dispute has nothing to do with the terms and conditions of employment in the establishment, the stoppage of work by its employees has no basis in labor law.
A sympathetic or sympathy strike is illegal.

Sympathetic strike

one in which the striking employees have no demands or grievances of their own, but they strike for the purpose of directly or indirectly aiding others, without direct relation to the advancement of the interest of the strikers.

A "welga ng bayan" is in the nature of a general strike which is but an extended sympathetic strike.

It is work stoppage affecting numerous (if not all) employers, including a particular employer who has no dispute with his employees regarding their terms and conditions of employment.
Employees who are scheduled to work should come to work. If they refuse to work to join instead a "welga ng bayan, " they are committing an illegal work stoppage in the absence of a labor or industrial dispute (as defined in the Code) with their employer.

Politically, welga ng bayan can be justified.

Avoidance of Strike

Pacific measures or remedies must first be exhausted before strikes are declared.
Strikes and other coercive acts are deemed justified only when peaceful alternatives have proved unfruitful in settling the dispute.

The NCMB

An agency that helps avoid strikes by exhaustion of pacific measures is the NCMB.
The National Conciliation and Mediation Board is a dispute-resolution arm under the administrative supervision of the Secretary of Labor and Employment.
Promptly after receipt of notice of strike/lockout, the NCMB conciliator-mediators call the parties to conciliation conferences.

Conciliation-Mediation

In the NCMB, the hearing officer is called Conciliator-Mediator. .

Conciliation is conceived of as a mild form of intervention by a neutral third party, the Conciliator-Mediator, relying on his persuasive expertise, who takes an active role in assisting parties by trying to keep disputants talking, facilitating other procedural niceties, carrying messages back and forth between the parties, and generally being a good fellow who tries to keep things calm and forward-looking in a tense situation.
Mediation is a mild intervention by a neutral third party, the Conciliator Mediator, whereby he starts advising the parties or offering solutions or alternatives to the problems with the end in view of assisting them towards voluntarily reaching their own mutually acceptable settlement of the dispute.

Any information and statements made at conciliation proceedings should be treated as privileged communication and thus may not be used as an evidence in any proceedings.

They are inadmissible in evidence.
Privilege Communication:

BLR, Med-Arbiters or any of its hearing officers
NCMB
Labor Arbiters
Commissioners of the NLRC

Con-med can also urge submission of the dispute to preventive mediation or arbitration.

A dispute undergoing preventive mediation or arbitration cannot serve as reason for holding a strike or lockout.
Under preventive mediation, the notice of strike or lockout (if one has been filed) is dropped from the docket.

Preventive Mediation

"Preventive mediation" covers potential labor disputes that are the subject of a formal or informal request for conciliation and mediation assistance sought either or both parties or upon the initiative of the NCMB to avoid the occurrence of actual labor disputes and in order to remedy, contain or prevent its degeneration into a full blown dispute through amicable settlement.
The term "preventive mediation case" refers to the potential or brewing labor dispute which is the subject of a formal or informal request for conciliation and mediation assistance sought by either or both parties in order to remedy, contain or prevent its degeneration into a full blown dispute through amicable settlement.
Preventive mediation proceeding may be initiated in two (2) ways:

By filing a notice or request of preventive mediation, as distinguished from a notice of strike /lockout; or
By conversion of the notice of strike/lockout into a preventive mediation case.

Only certified SEBAs may file a notice or request for preventive mediation in cases of bargaining deadlocks and unfair labor practices, the only two (2) grounds that may support a strike or lockout.
As distinguished from a notice of strike/lockout, "notice of preventive mediation" refers to the notification filed by either an employer or a duly registered labor union with the NCMB-DOLE informing the latter of its desire to submit the issues between them for preventive mediation and conciliation.
The issues that may be submitted for preventive mediation may either be:

strikeable or
non-strikeable

Strikeable

In cases of strikeable issues, the parties may mutually agree that the same be treated or converted into a preventive mediation case, in which event, no strike or lockout may be legally and validly mounted based on the same issues since their conversion into preventive mediation case has the effect of dismissing the notice of strike/lockout and removing it from the docket of notices of strike/lockout.

Non-strikeable

In cases of non-strikeable issues raised in a notice of strike or notice of lockout, the NCMB may, motu propio, convert the same into a preventive mediation case or, alternatively, refer said issues to:

voluntary arbitration, if they are in the nature of unresolved grievances or
Med-Arbiter, if they involve representation or inter-union disputes

Converting Notice of Strike/ Lockout Into a Preventive Mediation Case

The NCMB has the authority to convert a notice of strike /lockout filed by the union/employer into a preventive mediation case under any of the following circumstances:

When the issues raised in the notice of strike/lockout are not strikeable in character.
When the party which filed the notice of strike/lockout voluntarily asks for the conversion.
When both parties to a labor dispute mutually agree to have it subjected to preventive mediation proceeding.

To convert a notice of strike or lockout into a preventive mediation case, the following guidelines may be followed:

Clearly determine whether the issue/s raised in the notice of strike/lockout is/are strikeable or not.
If conversion is warranted, a written recommendation from the Conciliator-Mediator handling the case is required, after close consultation with the Regional Branch Director.
The written recommendation must be formally endorsed to the Regional Branch Director II for approval.
The conversion must be done before the cooling-off period expires or before the union conducts its strike balloting.
Parties concerned must be formally notified of the action taken by the Regional Branch Director through a letter signed by the Conciliator-Mediator handling the case and approved by the Director II.
The notice should be dropped from the docket of notices of strike/lockout and to be renumbered as a preventive mediation case and a conference thereon should be set on specific date.

Once the notice of strike is converted into a preventive mediation case, the notice is deemed dropped from the dockets as if no notice of strike has been filed.

Any strike or lockout after the conversion is therefore illegal.

Basic Objective of Strike

Basically, a strike is a coercive activity resorted to by employees to enforce their demands.
Strike and lockout are similar because they both connote temporary stoppage of work.

The difference is in the identity of the doer.

Strike is to the employees' union as lockout is to the employer.

Like strike, lockout may be caused by either a:

collective bargaining deadlock or
an unfair labor practice act of a union

Legality of Strike: The Six Factors Affecting Legality

An illegal strike is one which:

is contrary to a specific prohibition of law, such as strike by employees performing governmental functions; or
violates a specific requirement of law; or
is declared for an unlawful purpose, such as inducing the employer to commit an unfair labor practice against non-union employees; or
employs unlawful means in the pursuit of its objective, such as a widespread terrorism of non-strikers; or
is declared in violation of an existing injunction; or
is contrary to an existing agreement, such as a no-strike clause or conclusive arbitration clause.

First Factor in Legality of Strike: Statutory Prohibition

Government employees have the right to organize. But they do not have the right to strike.
Even though the strikers (public school teachers) called their action "mass actions" or "peaceable assembly," the Court ruled that those "mass actions" were to all intents and purposes strike, undertaken for essentially economic reasons.

They constituted a concerted and unauthorized stoppage of, or absence from, work.
The actuations of the teachers definitely constituted conduct prejudicial to the best interest of the service, punishable under the Civil Service law, rules and regulations. (Bangalisan, et.al, July 31, 1997)

Second Factor in Legality of Strike: Procedural Requirements

A strike (or lockout), to enjoy the protection of law, must observe certain procedural requirements.

A notice of strike (or lockout), with the required contents, should be filed with the Department of Labor and Employment, specifically the regional branch of the National Conciliation and Mediation Board (NCMB), copy furnished the employer or the union, as the case may be.

Who can file the notice?

If the reason for the strike notice is bargaining deadlock, only the recognized or certified bargaining agent can file the notice.
If the reason is ULP, the notice should be filed by the recognized or certified bargaining agent; in its absence, the LLO affected by the ULP may file the notice.

Only a legitimate labor organization (LLO) can legally hold a strike.

Ununionized employees cannot hold a lawful work stoppage because only a union can file a notice of strike and only a union can take a strike vote among its members and then report its result to NCMB.

A cooling-off period must be observed, i.e, a time gap is required to cool-off tempers between the filing of notice and the start of the actual work stoppage.

The cooling-off period is:

thirty days in case of bargaining deadlock and
15 days in case of unfair labor practice.

However, in case of union-busting as defined in Article 264(c), the 15-day cooling-off period shall not apply and the union may take action immediately after the strike vote is conducted and the results submitted to the Board.

During the cooling-off period, the NCMB mediates and conciliates the parties.

They are not allowed to do any act which may disrupt or impede the early settlement of the dispute.
As part of their duty to bargain, they are obliged to participate fully and promptly in the NCMB meetings.

Before a strike may actually start, the union should take a strike vote by secret balloting in meetings or referenda, with 24-hour prior notice to NCMB.

The decision to declare a strike requires the secret-ballot approval of majority of the total union membership, not just majority of the members attending the meeting.
Similarly, a lockout needs the secret-ballot concurrence of majority of the directors or partners.

The result of the strike (or lockout) vote should be reported to the NCMB at least seven days before the intended strike or lockout, subject to the cooling-off period.

An NCMB Primer indicates that the seven-day reporting period and the cooling-off period (if required) run separately are counted separately.

In other words, the seven days are in addition to the 15 or 30 days cooling-off period. X = 7 + 15 (or 30)

The cooling-off period and the seven-day reporting period are two different mandatory requirements.

And they must be separately counted because they have different purposes — one is devoted to conciliation efforts, the other to verification of the voting report. (See Capitol Medical Center, April 26, 2005.)

No strike or lockout shall be declared after certification or submission of the dispute to compulsory or voluntary arbitration, nor may a strike or lockout be declared during the pendency of cases involving the same grounds for the strike or lockout.

Hence, no strike or lockout shall be declared:

after assumption of jurisdiction by the President or the Secretary, or
while the case is pending in arbitration, whether compulsory or voluntary.

"The language of the law leaves no room for doubt that the cooling-off period and the seven-day strike ban after the strike-vote report were intended to be mandatory."
A strike or walkout on the basis of grievances which have not been submitted to the grievance committee, as stipulated in the agreement of the parties sanctioned by the CIR [now NLRC], is premature and illegal.

Third Factor in Legality of Strike: Purpose; Economic and ULP Strike

A strike may legally be held because of either or both:

a collective bargaining deadlock and/or
an unfair labor practice act of the employer.

A strike not based on any of these two causes is necessarily tainted with illegality.

Economic strike is intended to force wage and other concessions from the employer, which he is not required by law to grant.

It is declared for the purpose of:

securing higher wages

other immediate conditions of labor, such as a:

shorter work-day
higher rate of overtime compensation
other economic benefits that are usually included in a collective bargaining contract

It is also known as bargaining strike.

Unfair labor practice strike is held against the unfair labor practices of the employer, usually for the purpose of making him desist from further committing them.
There are two tests in determining the existence of an unfair labor practice strike:

Objectively, when the strike is declared in protest of unfair labor practice which is found to have been actually committed; and
Subjectively, when a strike is declared in protest of what the union believed to be unfair labor practices committed by management, and the circumstances warranted such belief in good faith, although found subsequently as not committed. (Norton and Harrison, 29 SCRA 310, 315)

This is the doctrine of ULP strike in good faith.

But even this kind of "good-faith strike" must comply with the notice requirement and the other mandatory requirements of holding holding a a lawful strike.
Inter-union and intra-union disputes and violation of labor standards laws are not valid grounds for strike or lockout. The law provides for med-arbitration procedures in the disposition of inter-and intra-union disputes, and labor enforcement in the case of labor standards violations.

Not valid grounds for strike or lockout:

inter-union disputes
intra-union disputes
violation of labor standards laws
salary distortion

The employees' unjustified alteration of the 24-hour work schedule through their concerted activities of "overtime boycott" and work slowdown" can be classified as a strike on an installment basis.

It constituted a violation of their CBA which prohibits the union or employee, during the existence of the CBA, to stage or engage in slowdown or interruption of work.

Fourth Factor in Legality of Strike: Means and Methods

These limits are among the activities prohibited under Article 279 particularly par, (e), It states that "no person engaged in picketing shall:

commit any act of violence, coercion or intimidation, or
obstruct the free ingress to or egress from the employer's premises for lawful purposes, or
obstruct public thoroughfares."

If the picket, although peaceful and moving effectively blocked the entry and exit points, then the picket constitutes illegal obstruction, thus making the strike illegal.
Coercing or threatening non-striking employees is illegal.
The use of violence or threat to pursue labor rights is punishable under the Revised Penal Code, Article 289.

Fifth Factor in Legality of Strike: Injunction; "National Interest" Disputes

To stop a strike, the employer needs to secure writ of injunction which is a command to do or not to do something.
The labor injunction is an employer's most effective remedy in a labor dispute.
Labor injunction is not favored in law.

The law prefers voluntary and peaceful means of dispute settlement.

Nonetheless, the protective force of law will be applied when prohibited or unlawful acts are being or about to be committed that will cause grave or irreparable damage to the complaining party.
Even in non-"national interest" disputes the NLRC can enjoin the strike itself (not just the illegal acts in the course of the strike) if the strike or the threatened strike is illegal because it lacks the required notice of strike or it violates the CBA's arbitration clause.

Not to issue a writ of injunction in such a situation is an abuse of discretion by NLRC.

"National Interest" Cases

"National interest" disputes are treated differently.
Injunction in "national interest" cases is expressly allowed under the present Article, par. (g).

This therefore is an additional exception to the no-injunction rule under Article 265.
An injunction may be issued automatically, even if none of the parties asks for it.

The holding of a strike or lockout is prohibited after:

By assumption of jurisdiction, the Secretary steps into the picture and helps the parties settle their dispute.
By assigning or certifying the case to the NLRC, the Secretary places the dispute under compulsory arbitration.

Article 278(g) grants extraordinary and preemptive power.

This grant is not limited to the grounds cited in the notice of strike or lockout.
It gives the Secretary full authority to resolve all matters arising from or related to the dispute, including cases over which the NLRC's labor arbiter has exclusive jurisdiction.
To such an award, the hold-over principle applies, i.e., the CBA continues in full effect until a new agreement is reached.

The court has ruled that the exercise of the assumption power does not need the existence of actual deadlock in the CBA negotiation.

It is enough that a controversy exists between the employer and the negotiating union because of their differing proposal and counterproposal.

In actual implementation, however, the DOLE Secretary proceeds cautiously in assuming jurisdiction over a dispute.
One of two situations must exist before he (or she) issues an assumption or a certification order, namely:

Both parties have requested the Secretary of Labor and Employment to assume jurisdiction over the labor dispute; or
After a conference called by the office of the Secretary of Labor and Employment on the propriety of its issuance, motu propio or upon a request or petition by either [party] to the dispute.

Nonetheless, the parties are allowed, at any stage, to withdraw the case from compulsory arbitration to bring it instead to a voluntary arbitrator.

The Court holds that the Secretary's jurisdiction over "N.L." labor disputes extends to all questions arising from that dispute. However, the Court excepted from this ruling the situation where in their CBA the parties categorically agreed that disputes between them shall be referred to the grievance machinery which ends in voluntary arbitration.

The assumption or certification has the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order.
If a strike or lockout has already in 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 the operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout.
Assumption and certification orders are executory in character and are to be strictly complied with by the parties even during the pendency of any petition questioning their validity.

Actual, Not Payroll, Readmission

Under the third sentence of Article 278(g), the employer has to readmit all workers "under the same terms and conditions."
This phrase contemplates actual, not payroll, reinstatement of the workers.
The assumption or certification order under Article 278 (g) has the effect of regulating the management prerogative of determining the assignment or movement of employees.

Exception: Payroll Readmission

Payroll reinstatement [under Article 278(g)] in lieu of actual reinstatement is a departure from the rule in these cases and there must be a showing of special circumstances rendering actual reinstatement impracticable... or otherwise not conducive to attaining the purpose of the law.
One of the "superseding circumstances" that justifies payroll reinstatement [instead of actual reinstatement which is the norm in readmission of workers under Article 264(g)] is the fact that the subject employees positions were declared confidential in nature by a panel of voluntary arbitrators.

Defiance or Abandonment

A strike that is undertaken despite the issuance by the Secretary of Labor of an assumption or certification order becomes a prohibited activity and thus illegal, pursuant to the second paragraph of Article 279 of the Labor Code, as amended.
Defiance to the assumption and return-to-work orders of the Secretary after he has assumed jurisdiction is a valid ground for loss of the employment status of the defiant union officer or member.
Those strikers who defy the order and refuse to return to work cannot complain if they are deemed to have forfeited their employment as a consequence of their intransigence.
Not only union officers but also union members who defy return-to-work order are subject to dismissal. They are deemed to have participated in an illegal act.
Abandonment of work as a ground to dismiss under Article 297(b) of the Code should not be confused with abandonment of work under the law on strike, particularly under Articles 278 and 279.

The rule in employee dismissal is that to constitute abandonment of position there must be concurrence of the intention to abandon and some overt act from which it may be inferred that the employee has no more interest in working.
This rule is available as a defense against dismissals under Article 297. But the same rule cannot be invoked in dismissals resulting from a striker's defiance of return to work order under Articles 278 and 279.

Due process has to be observed. T

Assumption or certification order is legally allowed only in "national interest" cases.

In "non-N.l." cases, the anti-injunction policy under Article 266 prevails.

What Are "National Interest Industries"? The List under D.O. No. 40-H of 2013

The law gives no answer and leaves the matter to the circumstances as assessed by the secretary's sound judgment.
Thus, the law says, "When, in his opinion. But the discretion, though unbound, cannot be capricious or abusive. Judicial precedents therefore have established some justifying criteria, such as the size of the work force affected, the kind of products or services involved, the effect on the public, or the impact to the economy.

Section 16. Industries Indispensable to the National Interest—
For the guidance of the workers and employers in the filing of petition for assumption of jurisdiction, the following industries/services are hereby recognized as deemed indispensable to the national interest:

hospital sector;
electric power industry;
water supply services, to exclude small water supply services such as bottling and refilling stations;
air traffic control;
such other industries as may be recommended by the National Tripartite Industrial Peace Council (NTIPC)
banking

Action After Issuance of Order

"Within five (5) days from the issuance of the Assumption or Certification order, a preliminary conference or hearing shall immediately be conducted by the Office of the Secretary of Labor and Employment, the NLRC or the voluntary arbitrator or panel of voluntary arbitrators as the case may be."

Decision within 30 Days

D.O. No. 40-H-13 reiterates the earlier directive: The decision of Secretary of Labor and Employment, the NLRC or Voluntary Arbitrator, or Panel of Voluntary Arbitrators shall be rendered within thirty (30) calendar days from submission of the case for resolution and shall be final and executory ten (10) calendar days after receipt thereof by the parties.

Sixth Factor in Legality of Strike: Agreement of the Parties

A no-strike clause in a CBA is applicable only to economic strikes.
Therefore, if the strike is founded on an unfair labor practice of the employer, the strike declared by the union cannot be considered a violation of the no strike clause.
As already mentioned, the employees' "overtime boycott" and "work slowdown" amount to a strike that violates the no-strike clause in the CBA.

Art. 279. Prohibited Activities.

(a) Preconditions for Strikes/Lockouts

Collective bargaining according to Title VII
Filing of the notice required (declaring a strike or lockout mandated)
Necessary strike or lockout vote obtained and reported to the Ministry

Prohibitions on Declaration of Strike or Lockout

After assumption of jurisdiction by the President or the Minister
After certification or submission of the dispute to compulsory or voluntary arbitration
During the pendency of cases involving the same grounds for the strike or lockout.

Effect: Entitled to Reinstatement with Full Back Wages

Any worker whose employment has been terminated as a consequence of an unlawful lockout.

Effect: Loss of Employment Status

Any union officer who knowingly participates in an illegal strike
Any worker or union officer who knowingly participates in the commission of illegal acts during a strike

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.

(b) Prohibited Acts in the Exercise of Self-Organization or Collective Bargaining

obstruct
impede
interfere with by:

force
violence
coercion
threats
intimidation

aid or abet such obstruction or interference

(c) Strikebreakers

Employers forbidden from employing strikebreakers.
A person is forbidden from being a strikebreaker.

(d) Prevention of Personnel Escorted by Officials:

Who:

public official or employee
officers and personnel of the Armed Forces of the Philippines
officers and personnel of the Integrated National Police,
armed person

Prohibited Acts:

bring in
introduce
escort in any manner

Any person who seeks to:

to replace strikers in entering and/or leaving the premises of a strike area
to work in place of the strikers:

That nothing herein shall be interpreted to prevent any public officer from taking any measure necessary to maintain peace and order and/or protect life and property.

(e) Picketing Restrictions

Picketing individuals must refrain from:

violence
coercion
intimidation
obstruct free ingress to or egress from the employer’s premises
obstruct public thoroughfares.

Picketing

Picketing consists in walking or patrolling in the vicinity of a place of business involved in a labor dispute to inform the public about an ongoing dispute.

Picketing usually accompanies a strike, but picketing, as a form of protest action, may happen even if there is no strike or work stoppage.

The right to picket as a means of communicating the facts of a labor dispute is a phase of the freedom of speech guaranteed by the Constitution
The right may be regulated at the instance of third parties or "innocent bystanders."

The "bystander" establishment which is entitled to enjoin a labor strike or picket must be entirely different from, without any connection whatsoever to, either party to the dispute.
If such establishment is in fact partly owned by the employer struck against, and, furthermore, produces the same product and uses the same factory and machinery which said employer owns, then the bystander rule does not apply.

Prohibition:

obstruction of access of customers.
aggressively interfering with:

the right of peaceful ingress and egress to and from the employers' shop, or
obstruct the public thoroughfares

carried on with intimidation, threats, coercion, or force
vandalism and acts of a less terroristic nature which are also designed to cause physical discomfort to the employer's customers
effectively blocks the entry and exit points of the company premises.

Consequences of Concerted Actions: Employment Status

A strike is not favored in law.
Strike is work stoppage that entails lost earnings of employers and employees.

Doing an illegal strike is a legal reason to dismiss and employees.

What can happen to strikers?
Union members

Participation of a worker a lawful strike does not constitute sufficient ground for termination of his employment.
Even his participation in a strike that turned out to be illegal does not necessarily result in his loss of job.
But anyone who commits an illegal act during a strike may be dismissed from employment, whether he is a member or an officer of the union and regardless of whether the strike itself is legal not.

Union officers

may be declared to have lost his employment status if:

knowingly participates in an illegal strike or
knowingly participates in the commission of illegal acts during a strike, even if the strike is legal

may be declared to have lost his employment status.

Illegal act dismisses the illegal striker.
The officers and members are treated differently because of their positions.

May the Employer Instruct the Strikers to Stop the Strike and Return to Work?

The Court ruled that disobedience to the directive from the employer was not itself a valid ground of dismissal.

The employees' right to exercise their right to concerted activities should not be defeated by the directive from [the employer] for them to return to work."
By striking the employees were asserting their right to demand improvement in their terms and conditions of work.
A return-to-work memorandum from their employer does not suffice to stifle their constitutional right.

Who Dismisses the Illegal Strikers?

Notwithstanding the fact that Inport [the employer] previously accepted other union officers and that the screening required by it was uncalled for, still it cannot be gainsaid that it possessed the right and prerogative to terminate the union officers from service. The law, in using the word "may," grants the employer the option of declaring a union officer who participated in an illegal strike as having lost his employment.
Dismissible strikers may be dismissed from employment although the employer has not filed a complaint denouncing the illegality of the strike.

Employer's Right to Hire Replacements During Strike

Under present law, the employer may hire workers to replace the striking employees.

"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."

During the pendency of an economic strike, the employer may hire replacements on a permanent basis and is not bound to discharge such permanent replacements in the event that the strikers decide to resume their employment.
On the other hand, while replacements may also be hired by the employer to take the places left vacant by employees engaged in an unfair labor practice strike, such replacements are not permanent and the employer is under a duty to dismiss them as soon as the strikers request reinstatement to their previous position.
A lawful strike is a protected workers' activity.

After the strike, he has the right to reassume his job unless in the meantime he has lost it by committing certain illegal acts.

What the law prohibits is not the hiring of temporary replacements but the use of strike-breakers.

Strike-breakers are not bona fide workers; they are trouble-makers.

The Code does not prohibit the hiring of temporary replacements.

But D.O. No. 174 (March 16, 2017), like the previous D.O. No. 18-A, prohibits contracting out of a job, work, or service directly related to the business or operation of the principal by reason of a strike or lockout, whether actual or imminent.

Backwages

"No work, no pay" is the general rule during a strike or lockout.
In an economic strike, the strikers are not entitled to backwages because of the principle that "a fair day's wage" accrues only for a "fair day's labor."
In unfair labor practice strike, two types of employees should be distinguished, namely:

those who were discriminatorily dismissed for union activities, and
those who voluntarily went on strike even if it is in protest of an unfair labor practice
Discriminatorily dismissed employees

receive backpay from the date of the act of discrimination, that is, from the day of their illegal discharge in other words, the law on dismissal (Book VI of the Code) applies.

The rest of the employees
- who struck as a voluntary act of protest against what they considered unfair labor practices of the company are not entitled to backwages.
- The stoppage of their work was not the direct consequence of the company's unfair labor practice.

The exception, however, is where the workers offered to return to work but were illegally locked out.

In such case, they should be entitled to backwages.
But this exception applies only if the strike itself was legal.

Employee-strikers who were illegally dismissed were entitled to backwages (as provided in Art, 294) from the time they were dismissed until their reinstatement.

Their backwages should exclude only the period they were on strike.

No Firearms, No Violence, No Threats

Workers who want to work during a strike may legally do so, but they:

❌ cannot bear firearms
❌ cannot be accompanied any armed person, either policeman or civilian.

The employer or the union cannot employ:

❌ violence
❌ threats
❌ coercion

These acts are unlawful with or without a strike/lockout.
The role of military personnel posted in a strike location is to enforce law and legal order, but they should keep out of the picket line unless actual violence or other criminal acts occur there.
The DOLE Guidelines for the Conduct of INP/AFP Personnel During Strikes instructs police/military personnel to maintain themselves outside a 50-meter radius from the picket line.

However, if the 50-meter radius includes a public thoroughfare, they may station themselves at that thoroughfare to keep free flow of traffic.

Non-striking Union Members

What may the union do to its non-striking members?

The union may persuade, but cannot coerce or intimidate them to join the strike.
Moreover, the union may enforce its rules on acquisition and retention of membership as spelled out in the union by-laws.
This is allowed in Article 259(a).

To enforce members' obligations is legal and to strike is a legal right.
But any right, if abused, becomes a legal wrong.

Art. 280. Improved offer balloting.

Settlement Referendum Process:

Department of Labor and Management conducts a secret ballot referendum.
For strikes:

Union members vote on the improved offer by the employer within 30 days of the strike.

For lockouts:

Board of directors, trustees, or controlling partners vote on the reduced offer by the union within 30 days of the lockout.

Acceptance Criteria:

Strike resolution:

Majority of union members must accept the improved offer.

Lockout resolution:

Majority of the governing body (board of directors, trustees, or controlling partners) must accept the reduced offer.

Immediate Action Upon Acceptance:

If criteria are met, striking workers must return to work immediately.
Employers must readmit workers upon the signing of the agreement.

Department of Labor and Employment's Role:

Facilitates the referendum process for both strikes and lockouts.

Timing Requirement:

Referendum to be conducted on or before the 30th day of the strike or lockout for resolution.

Notes:

A device to shorten if not avert a strike is the "improved offer balloting"
Sometimes a strike occurs because of:

miscommunication between the parties, or
because a party merely wants to make a show of force, or
to test the other's last bargaining position.

The improved offer balloting opens a graceful exit to break a stalemate.

Art. 281. 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.

Requirement for Arrest and Detention:

grounds of national security
grounds of public peace
commission of a crime

Suggested Questions:

What is a labor dispute?

A labor dispute is a controversy or matter concerning the terms and condition of employment or representation of the employees in collective bargaining.

What is the main objective of a strike? Explain.

The main objective of a strike is to coerce the employers to enforce the demands of the employees by interrupting their productivity.

Briefly explain the six factors affecting the legality of a strike.

The following are the six factors affecting the legality of strike:

Contrary to prohibition of law

A strike is illegal if it is prohibited by laws or regulation, such as strike by government employees.

Violation of specific legal requirement

A strike is illegal if it violates legal requirements, such as procedure or notice.

Declared for unlawful purpose

A strike is illegal if the purpose is unlawful, such as if motivated by subversive goals.

Employs unlawful means

A strike is illegal if it employs violence or intimidation, such as threatening other employees not participating in the strike.

Violation of existing injunction

A strike is illegal if it violates an existing injunction issued by the court prohibiting a strike.

Contrary to existing agreements

A strike is illegal if there is an agreement between the employer and the employees, such as a no-strike clause in the Collective Bargaining Agreement.

Chapter II

Assistance to Labor Organizations

Art. 282. Assistance by the Department of Labor.

Assistance by the Department of Labor.

extend special assistance to the organization of the most underprivileged workers

purpose: collective bargaining

workers who are not normally covered by major labor organizations or federations for reasons of:

occupation
organizational structure or
insufficient income

Art. 283. Assistance by the Institute of Labor and Manpower Studies.

Assistance by the Institute of Labor and Manpower Studies

render technical and other forms of assistance to:

labor organizations
employer organizations

in the field of:

labor education, especially pertaining to collective bargaining
arbitration
labor standards and
the Labor Code of the Philippines in general

Chapter III

Foreign Activities

Art. 284. Prohibition against aliens; exceptions.

Prohibition against aliens; exceptions.

General prohibition:

Aliens (individuals and organizations) cannot directly or indirectly participate in Philippine trade union activities.
This applies to both natural persons and juridical entities.

Exception:

Normal contacts between Philippine unions and recognized international labor centers.

Exception for foreign workers:

Alien workers with valid permits can join and participate in labor organizations for collective bargaining purposes.
Two conditions must be met:

The aliens is a national of a country which grants the same or similar rights to Filipino workers;
The alien has a valid work permit issued by the Department of Labor and Employment.

Art. 285. Regulation of foreign assistance.

Regulation of foreign assistance.

Who are prohibited?

Foreign individuals
Foreign organizations
Foreign entities

What is prohibited?

Providing any donations, grants, or other forms of assistance (cash or in-kind), in relation to trade union activities, directly or indirectly to:

Labor organizations
Groups of workers
Auxiliary entities

cooperatives
credit unions
institutions engaged in research, education or communication

Employers or employer organizations

What activities are covered?

Trade union activities:

Organizing, forming, and administering labor organizations
Negotiating and administering collective bargaining agreements
Concerted union actions (strikes, protests, etc.)
Organizing, managing, and assisting union events (conventions, meetings, rallies, etc.)
Participation in representation proceedings and elections
Any similar activities

Exceptions:

Prior permission by the Secretary of Labor

Additional regulations:

Secretary of Labor will create rules and regulations to control such assistance, including:

mandatory reporting of the amounts of the donations or grants
specific recipients thereof
projects or activities proposed to be supported
duration

Art. 286. Applicability to farm tenants and rural workers.

Applicability to Farm Tenants and Rural Workers:

General applicability:

Provisions regarding foreign organizations and activities also apply to organizations of:

farm tenants
rural workers
similar groups

This includes restrictions on foreign support and activities related to these organizations.

Specific responsibilities:

In appropriate cases, the Secretary of Agrarian Reform will take over the powers and duties assigned to the Secretary of Labor.

Chapter IV

Penalties for Violation

Art. 287. Penalties.

Penalties for Violations of Article 279.

Philippine Citizens:

Act: Art. 279. Prohibited Activities in Strikes and Lockouts.
Fine: ₱1,000 to ₱10,000
Imprisonment: 3 months to 3 years

Both fine and imprisonment possible
No double jeopardy: Penalty under this article excludes prosecution under the Revised Penal Code for the same act, and vice versa.

Foreigners:

Immediate Deportation: If recommended by Labor and National Defense Ministers.
Permanent Entry Ban: Without special permission from the President.

Title IX

Special Provisions

Art. 288. Study of labor-management relations.

Secretary of Labor's Powers and Duties Regarding Labor-Management Relations

Research and Inquiry:

Existing employer-employee relations
Growth of employee associations
Effectiveness of collective bargaining
Methods for maintaining good relations
Successful collective bargaining practices
Improving collective bargaining
Labor-management cooperation methods
Other relevant aspects
Labor laws and development

Additional Responsibilities:

Investigate industrial unrest
Take necessary steps
Recommend legislation to promote and maintain industrial peace

Art. 289. Visitorial power.

Visitorial Power of the Secretary of Labor.

Who:

Secretary of Labor or
authorized representative

What:

Investigate financial activities of legitimate labor organizations

Upon:

Formal complaint under oath
Written consent from 20% of union members

Purpose:

Examine books of accounts and records
Determine compliance with law, union constitution, and by-laws
Prosecute any violations

Restrictions:

No investigations during:

60-day "freedom period" after official union recognition
30 days before union election

Under D.O. No. 40-03 (March 15, 2003)

A request for examination of books of accounts of independent labor unions, chartered locals and workers associations pursuant to Article 288 shall be filed with the Regional Office that issued its certificate of registration or certificate of creation of chartered local. For a federation, national unions, and trade union centers, it shall be filed with the Bureau of Labor Relations.

Regional Office

Independent Labor Unions
Chartered Locals
Workers Associations

Bureau of Labor Relations

Federation
National Unions
Trade Union Centers

Such request or complaints, in the absence of allegations pertaining to a violation of Article 249, shall not be treated as an intra-union dispute.

The appointment of an Audit Examiner by the Regional or Bureau Director shall not be appealable.

The complaint or petition for audit examination of funds and book of accounts shall prescribe within three years from the date of submission of the annual financial report to the Department or from the date the same should have been submitted as required by law, whichever comes earlier.
Decision

A decision granting the conduct of audit shall include the appointment of the Audit Examiner and a directive upon him/her to submit his/her report and recommendations within ten days from termination of audit.
The decision granting the conduct of audit is interlocutory and shall not be appealable.
The decision denying or dismissing the complaint or petition for audit may from receipt thereof pursuant to the provisions appealed within ten days prescribed in Rule XI of D. O, No, 40-03.

Art. 290 Tripartism and tripartite conferences.

Tripartism and tripartite conferences.

State Policy:

Tripartism: Collaboration between government, workers, and employers is encouraged in labor relations.
Worker and Employer Representation: Government is encouraged to include worker and employer representatives in decision-making bodies.

Tripartite Conferences:

Convened by:

Secretary of Labor or
authorized representatives.

Frequency: As needed, at

national
regional
industry level

Participants:

Representatives of:

government
workers
employers.

Purpose:

Develop voluntary codes of principles to promote industrial peace and social justice.
Align labor relations with national economic and social development goals.
May involve consultation with accredited worker and employer representatives beforehand.

Art. 291. Government employees.

The terms and conditions of employment of all government employees, including employees of government-owned and controlled corporations, shall be governed by the Civil Service Law, rules and regulations. Their salaries shall be standardized by the National Assembly as provided for in the New Constitution. However, there shall be no reduction of existing wages, benefits and other terms and conditions of employment being enjoyed by them at the time of the adoption of this Code.

Art. 292. Miscellaneous provisions.

(a) All unions are authorized to collect reasonable membership fees, union dues, assessments and fines and other contributions for labor education and research, mutual death and hospitalization benefits, welfare fund, strike fund and credit and cooperative undertakings.

(b) Subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal except for a just and authorized cause and without prejudice to the requirement of notice under Article 283 of this Code, the employer shall furnish the worker whose employment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires in accordance with company rules and regulations promulgated pursuant to guidelines set by the Department of Labor and Employment. Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the National Labor Relations Commission. The burden of proving that the termination was for a valid or authorized cause shall rest on the employer. The Secretary of the Department of Labor and Employment may suspend the effects of the termination pending resolution of the dispute in the event of a prima facie finding by the appropriate official of the Department of Labor and Employment before whom such dispute is pending that the termination may cause a serious labor dispute or is in implementation of a mass lay-off.

(c) Any employee, whether employed for a definite period or not, shall, beginning on his first day of service, be considered as an employee for purposes of membership in any labor union.

(d) No docket fee shall be assessed in labor standards disputes. In all other disputes, docket fees may be assessed against the filing party, provided that in bargaining deadlock, such fees shall be shared equally by the negotiating parties.

(e) The Minister of Labor and Employment and the Minister of the Budget shall cause to be created or reclassified in accordance with law such positions as may be necessary to carry out the objectives of this Code and cause the upgrading of the salaries of the personnel involved in the Labor Relations System of the Ministry. Funds needed for this purpose shall be provided out of the Special Activities Fund appropriated by Batas Pambansa Blg. 80 and from annual appropriations thereafter.

(f) A special Voluntary Arbitration Fund is hereby established in the Board to subsidize the cost of voluntary arbitration in cases involving the interpretation and implementation of the Collective Bargaining Agreement, including the Arbitrator’s fees, and for such other related purposes to promote and develop voluntary arbitration. The Board shall administer the Special Voluntary Arbitration Fund in accordance with the guidelines it may adopt upon the recommendation of the Council, which guidelines shall be subject to the approval of the Secretary of Labor and Employment. Continuing funds needed for this purpose in the initial yearly amount of fifteen million pesos (P15,000,000.00) shall be provided in the 1989 annual general appropriations acts.

The amount of subsidy in appropriate cases shall be determined by the Board in accordance with established guidelines issued by it upon the recommendation of the Council.

The Fund shall also be utilized for the operation of the Council, the training and education of Voluntary Arbitrators, and the Voluntary Arbitration Program.

(g) The Ministry shall help promote and gradually develop, with the agreement of labor organizations and employers, labor-management cooperation programs at appropriate levels of the enterprise based on the shared responsibility and mutual respect in order to ensure industrial peace and improvement in productivity, working conditions and the quality of working life.

(h) In establishments where no legitimate labor organization exists, labor-management committees may be formed voluntarily by workers and employers for the purpose of promoting industrial peace. The Department of Labor and Employment shall endeavor to enlighten and educate the workers and employers on their rights and responsibilities through labor education with emphasis on the policy thrusts of this Code.

(i) To ensure speedy labor justice, the periods provided in this Code within which decisions or resolutions of labor relations cases or matters should be rendered shall be mandatory. For this purpose, a case or matter shall be deemed submitted for decision or resolution upon the filing of the last pleading or memorandum required by the rules of the Commission or by the Commission itself, or the Labor Arbiter, or the Director of the Bureau of Labor Relations or Med-Arbiter, or the Regional Director.

Upon expiration of the corresponding period, a certification stating why a decision or resolution has not been rendered within the said period shall be issued forthwith by the Chairman of the Commission, the Executive Labor Arbiter, or the Director of the Bureau of Labor Relations or Med-Arbiter, or the Regional Director, as the case may be, and a copy thereof served upon the parties.

Despite the expiration of the applicable mandatory period, the aforesaid officials shall, without prejudice to any liability which may have been incurred as a consequence thereof, see to it that the case or matter shall be decided or resolved without any further delay.

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Labor Relations (CBA, Grievance Machinery & Voluntary Arbitration, Strikes & Lockout, Special Provisions) [Arts.261-292]

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